Monday, September 19, 2011

AB 655 (HAYASHI): IZZIT PEER REVIEW REFORM OR HYPOCRISY?

AB 655 (Hayashi) passed the legislature without a dissenting vote. Its alleged purpose, to facilitate transfer of peer review information from one hospital to another, is belied by a current Appellate decision for which the CMA appropriately filed an amicus for Dr. El-Attar.

AB 655 (Hayashi) is now on the governor's desk awaiting his signature or possible veto despite lopsided approval by a legislature that ignored numerous protests from physicians, lawyers, and physicians who are also lawyers.

The chief reason for the protests has to do with the repeatedly deceptive promotion of the bill by the author and her staff. The legislature was repeatedly told that there was no opposition to the bill. We now have a smoking gun, namely, a video where Assemblyperson Hayashi actually says as much to the legislature before the final vote. In that video, Assemblyperson Halderman, a physician and experienced staff member before getting elected to the Assembly, act out what appears to this writer to be a charade. Halderman points out that her office received considerable notice of opposition to the bill. Would Assemblyperson Hayashi explain? Hayashi obliges. Hayashi then ignores the sham peer review issue, hints that the opposition came from doctors without licenses, and implies that the legitimate points of opposition were solved by amendments.

Wrong, wrong: the opposition focussed on the failure of the bill to make sure that sham peer review material, false or defamatory material, was excluded from peer review transer. The author didn't want that, the hospital association didn't want that, and, mirabile dictu, neither did the lobbyists for the California Medical Association. More mirabile dictu, the CMA sponsored AB 655 despite the work of its own lawyers who worked in support of Dr. El-Ettar in the court case.

When Halderman rose to speak to the Assembly, she said by way of introduction that she supported the bill. Then, in closing, she repeated her support of the bill. Nevertheless, it was Hayashi herself who declined to acknowledge problems with sham peer review in the bill. It is our postion that AB 655 as currently written will enable sham peer review.

AB 655 runs afoul of the recent Appellate Court decision in Osamah A. El-Attar v. Presbyterian Hollywood Medical Center which states why peer review must be conducted fairly. The CMA said that "peer review that is not conducted fairly and results in the unwarranted loss of a qualified physician's right or privilege to use a hospital's facilities deprives the physician of a property interest."

CMA also stated that "peer review that is not conducted fairly results in harm to both patients and healing arts practioners by limiting access to care."

While the court case in support of El-Attar was in progress, CMA lobbying promoted AB 655 and resisted significant amendments to identify and exclude sham peer review. Are we being unduly argumentative by asking how one hand of an organization appears to have worked in opposition to the other hand?

This blog has asked for an explanation from the CMA. So should anyone interested in preserving honest peer review. In the meantime, a veto recommendation is appropriate.

The CMA could reconsider its support of AB 655 on September 22nd. We'll see what happens, then provide an update on what appears to be a comedy of errors without anyone laughing.

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