Tuesday, December 6, 2011

SHOPLIFTING (alleged) and LAWMAKING (also alleged): how careless legislation becomes law

Mary Hayashi's current conflict with the law is based on her having reportedly been nabbed in the act of shoplifting. Her defense so far is that she inadvertently stepped outside the store with a shopping bag loaded with expensive clothing and that she did so because she'd been distracted by cell phone calls. Sounds careless, doesn't it? But not necessarily done with criminal intent. How does this personal behavior jive with her professional conduct as a legislator?

Remember that during the debate re peer review over AB 655 Hayashi repeatedly stated that there was no opposition. It turns out that this statement is false. The California Society of Industrial Medicine and Surgery sent an advisory letter about defects in the bill while the Alliance for Patient Safety openly opposed the bill. Hayashi had plenty of time to correct the deficiencies in the bill, namely, that as written the legislation allows false and defamatory allegations against good doctors to be transferred from one hospital to another. Hayashi ignored advice to clean up this language. Instead, she belittled doctors who filed protests. Prestigious doctors such as R.V. Rao, MD, Chief of Surgery, the subject of a previous blog of ours, did their level best to advise Hayashi about her folly.

The California Medical Association wanted the bill as is -- in due course investigation will tell us why since the fact is that the chief beneficiaries of the bill are the clients of the California Hospital Association. Hayashi could have written a better bill, at least, some of us think she could have done so. On the other hand, if she's as casual and distracted about bill writing as she claims she is about shopping, maybe not.

Let's look at AB 25, another Hayashi bill signed into law, also well intentioned and also flawed. This bill, signed into law by Gov. Brown who also signed AB 655 into law, takes effect on January 1st, 2012. It will require school districts with extracurricular sports activities "to immediately remove ... an athlete who is suspected of sustaining a concussion or head injury ... the bill would prohibit the return of the athlete to that activity until he or she is evaluated by, and receives written clearance from, a licensed health care provider, as specified."

"As specified" as what? Is neurological or neurosurgical attention required?
Will any ol' "licensed health care provider" qualify for the job? The bill doesn't "specify" that physicians must make these decisions. Prior to passage of this bill, physicians who volunteered for this function put their practices on the line even though they may've worked on a pro bono basis. They risked being named in civil liability suits, e.g., malpractice accusations. Now they're also eligible for criminal accusations. One would have expected the California Neurology Society to seek malpractice waivers for physicians who accept these assignments on a pro bono basis and at the least to have tried to exempt them from criminal responsibility.

As devotees of the Conrad Murray show know, malpractice and criminal liability are separate and distinct. In the Murray trial, the judge stated that the trial was not about malpractice. It was about criminal activity. So it is now with AB 25 for concussions and head injuries sustained by high school athletes. Healthcare providers who accept these assignments may now risk double jeopardy: civil litigation for malpractice and criminal litigation thanks to Hayashi's other folly.

As to Hayashi herself, we're saddened and sorry but not surprised. Anybody who strolls out of a store with a coupla' grand of clothing in a shopping bag doesn't surprise us when she's equally careless with legislation.

Saturday, October 29, 2011

AB 655 (Hayashi's Hypocrisy) : The Sequel

LAWMAKER MARY HAYASHI CHARGED WITH SHOPLIFTING is the title of an article posted on SF GATE from the San Francisco Chronicle, 10/29/2011.


Here's the facts as they've been reported so far: Hayashi was shopping at Neiman Marcus and left the store with items priced at $2,450. She checked out at the register without paying for these items, got stopped by security, was taken to the Tenderloin Police Station, and was booked on one count of felony theft. She is eligible for three years in prison if convicted although as a new arrival to the felony theft scene a full three-year sentence is not expected. Her mouthpiece said she was "distraught" at the misunderstanding whereby she inadvertently by-passed the cash register and walked out of the store with the goods.

We are willing to post this story as reported but we'll wait for her defense and court judgement before drawing final conclusions. In the meantime, we'll explain why we've learned not to trust her anyway.

During the hearings on AB 655 she repeatedly told everyone and anyone who would listen that there was no opposition to the bill even though by this time it was known that there were dozens of private objections to the bill that had been sent not only to her office but also to the relevant legislative committees. All were ignored by Hayashi and her staff. Instead of thoughtful reply, we were told there was "no opposition." Technically, there's some truth to this assertion because there were no negative votes in the legislature. So it was not a complete lie that there was no opposition. There was, however, enough disception to dishonor her office and to sully the reputation of another assemblyperson who contributed to the deception in a sham speech and charade on the Assembly floor (which we have on video for appropriate release, like at election time).

It's not as though this instance were the first and only example of sub-standard conduct reported to have been committed by Hayashi. Two years ago it was reported that she used $202,212 from her own campaign money to assist her attorney spouse to win election to the Alameda county bench.

But there's plenty of soiled linen to pass around. Here's the latest from our reporter in Anaheim where the California Medical Association met last week. Jim Hinsdale, MD, out-going president of the CMA, proudly told the CMA attendees that AB 655 was one of CMA's more important legislative successes this year (CMA was actually the sponsor of this bill). Jodi Hicks, now in charge of lobbying for the CMA, dismissed assertions that the bill allows sham peer review.

The legislation was reportedly intended to enable transfer of peer review information about doctors among hospitals in order to prevent doctors who were shown to be incompetent from moving from hospital to hospital without full disclosure.

The legislation as written, unfortunately, enables hospital administrations to transfer material that is false and defamatory even if it is known that the information is false and defamatory. It enables and protects false witness. In essence it allows the equivalent of peer review blackmail.

When strenuous efforts were made in good faith to amend the bill resistance came from the CMA CEO, Dustin Corcoran, who spoke with the undersigned and allowed a snippet of amended language, just not enough to allow expungement of false and defamatory language. Some believe that the real force behind the bill was the California Hospital Association and that the basic ideology is to enable control of doctors by hospital administrations and foundations.

R.V. Rao, MD, Chief of Surgery at his hospital, says that "it is time to file ethics charges against this legislator to the California legislative assembly for blatantly misleading the California legislative assembly." We think that's a good idea.

The next step is for hospital committees that do peer review and credentials to meet and confer and decide what they need to do before the first lawsuits are filed in which the individual doctors serving on these committees are sued for defamation. The law may protect peer review and lawful conduct. It does not protect illegal activity.

The hornets are beginning to swarm. Committees at two hospitals known to this writer have already held meetings in which the topic was how to protect themselves as committee members from the consequences of this incompetent legislation.

Wednesday, October 12, 2011


In the tradition of never give up, never give up, Assemblywoman Fiona Ma has won a battle that began years ago when she sponsored legislation to have wrongful information expunged from doctors' records. Governor Jerry Brown signed AB 536, sponsored by the Union of American Physicians and Dentists (UAPD), into law. This bill accomplishes part of Ma's original objective in that it will require the Medical Board of California to remove an expunged misdemeanor conviction from a doctor's record on the medical board's website within 90 days of notification of the expungement order. Our accolades go to Fiona Ma as author of the bill, to the UAPD for sponsoring it, and to Gov. Brown for signing it into law.


Goveror Brown and former Gov. Schwarzenegger have in common that both earned the gratitude and thanks of the insurance cartels. When the insurance companies learned that Gov. Brown vetoed anything and everything that might have lightened the burden for injured workers, their immediate response was to praise the Governor. Why not? He saved their bacon, didn't he?

Both Schwarzenegger and Brown ignored the opinion of the Medical Board of California, namely, that utilization review was an aspect of medical practice and that utilization review doctors whose decisions are used in California should be licensed in California. Texas doctors, unlicensed in California, may do utilization review in California whereas California doctors, if they're not licensed in Texas, may not do utilization review for injured workers in Texas.

It turns out that Governors may ignore the decisions of their states' professional boards. Not so for the accountants, dentists, nurses, physicians and tecnologists who are obliged to submit to the decisions of their professional boards.

Jason Schmelzer, Chief Lobbyist for the California Workers' Comp Coalition, glowingly said "there's room for the Governor to gloat. He did a fine job ... we think he did just fine."

Jesse Ceniceros, president of Voters Injured at Work, asked "what was the sense in replacing a Republican with a Democrat if he's just going to do what the Repubicans tell him to do? It's as though we didn't get rid of Schwarzenegger."

Right on, Jesse, we didn't. Both governors kow-towed to the insurance companies. Both governors earned and deserve the accolades heaped upon them by the insurance moguls. The injured worker community never saw it coming and didn't know what hit 'em until it was over. Denials of authorization for care will keep coming from doctors without California licenses as long as the use of carpetbagger doctors continues.

Interestingly, Gov. Brown used the Knox-Keene legislation as his model even though Knox-Keene has nothing to do with workers' comp. Brown said that requiring utilization review doctors to be licensed in California wasn't consistent with Knox-Keene. The California Society of Industrial Medicine and Surgery wrote Brown in September of 2011 that "merely because some Knox-Keene companies may be engaging in illegal activity without being prosecuted is not sufficient basis to condone it in workers' comp." To the best of our knowledge, Knox-Keene wasn't invented to make the lives of injured workers miserable. That cudgel was taken up by Schwarzenegger and is now surprisingly being wielded by Brown.

It may've been a politically advantageous move for Schwarzenegger from whom fair and equitable treatment of injured workers wasn't expected. We'd expected better from Brown.

Friday, October 7, 2011


For the private practice community, our biggest success was causing SB 923 (Deleon) to suffer a humbling defeat in the legislature. This bill would have replaced the Office Medical Fee Schedule (OMFS) with the Medicare RBRVS (specialty cuts proposed ranged from 29% for neurological procedures to 48% for internal medicine). The bill will return. Administrative fiats will be sought to help it along. Physicians' groups that sit on the sidelines may find that there's no field to which to return. Some physician-specialty groups will offer courses (for which they'll charge their members) and sub-specialty certifications (for which they'll also charge their members). Specialty organizations may find themselves more on the side of management than on the side of practicing physicians.

Governor Brown took the side of insurance interests in his veto of AB 584 (Fong). He indicated that Fong's bill was not consistent with Knox-Keene or private insurance plans that do utilization review. All medical organizations should see the handwriting on the wall and ask if it's time to revise or reject Knox-Keene.

The Governor signed AB 655 (Hayashi) which allows the unfettered transfer of peer review material from one hospital to another. Control of peer review is of minor interest to most practicing physicians although it's of major interest to hospital administrations and financial interests that seek to control hospital medical staffs. Physicians and their official organizations may not be a match for these interests but, so far, they haven't tried to be.

Meanwhile, in Washington, there's continued focus on the Affordable Care Act, Obamacare to some. This writer opposes the IPAB (Independent Payment Advisory Board) and feels that Section 10320 of the ACA should be repealed. Our further comments on this bill appear in POLITICO.

Monday, October 3, 2011

AB 584 (Fong) is still on the Governor's desk: he has until October 9th to sign it into law. This bill will stop the perfidious practice of farming out utilization review for injured workers to doctors without California licenses. These doctors, no matter how well qualified, have not done the mandatory 12-hour pain management course that is required of doctors licensed in California. In addition to enjoying this relief, the doctors without California licenses enjoy another benefit: they don't pay fees to the Medical Board of California since they're not licensed in California. The loss of revenue to California's General Fund in terms of lost taxable income is $10,000,000 annually. If these doctors make grievous errors, they don't have to explain anything to the MBC nor do they report to their own state boards since those boards don't have jurisdiction in California. The loss to injured workers in California who are denied timely authorization of care is incalculable. Urge the governor to sign AB 584 by faxing your signed statement to him at 916-558-3177.

Late bulletin: Gov. Brown vetoed this bill on Oct. 7th because it wasn't consistent with how UR is done under Knox-Keene and private health plans that use the same UR techniques to delay and deny indicated medical care. The reasoning seems to be that's it's OK to apply the same screw to injured workers as to everybody else. Is it time to take down Knox-Keene?

AB 655 (Hayashi), also on the Governor's desk, is a horse of another color, well, at least a donkey of another color. This bill will allow transfer of alleged peer review material from one hospital to another when doctors apply for hospital privileges. The trouble is that there's nothing in the bill that allows sham peer review material, material that's flat-out wrong or defamatory, to be excluded from the transferred material. The accused doctor doesn't even need to be copied on the transferred material. Assemblywoman Hayashi, author of the bill, actually misinformed the legislature in an Assembly speech about the bill by asserting that there was no opposition (we have the video showing her doing just that). Attempts to get an amendment that would allow accused doctors to be fully informed were unsuccessful. The Governor should veto AB 655. Fax him that message at 916-558-3177.

Late bulletin: after the posting of the item above, word came in from Sacramento that Gov. Brown signed AB 655.

Monday, September 19, 2011


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.

Tuesday, September 13, 2011


SB 923 (Deleon)

In our last post we said this bill needed to be thrashed before it got trashed. It got both. The thrashing and trashing were well deserved. The language in the bill was insulated such that no money need have ended up in the hands of the PTPs. All of it could have gone to management without violating the language in the printed bill.

AB 584 (Fong)

This bill will rid us of utilization review by doctors who are not licensed in California. These doctors do not have to take the 12-hour pain management course that treating doctors licensed in California are obliged to take. These doctors are enabled to practice medicine without a California license and may get away with malpractice without a blemish on their records. The bill passed the legislature and awaits Governor Brown's signature. Readers of this blog should fax the Governor and advise him to sign it into law (916-558-3177). Don't forget to sign your own fax!

Tuesday, August 30, 2011


SB 923 (DELEON) if passed into law will require the Administrative Director of the Division of Workers Compensation to adopt the Medicare fee schedule for medical treatment and medical-legal diagnostic tests for injured workers. These tests are the gauges that insurers use to document level of injury, need for treatment, and reimbursement to the injured worker. Specialists do this level of testing: it is used not only to establish level of impairment, but also to document apportionment, a key item for employers. By abandoning the already low Office Medical Fee Schedule and changing to the even lower Medicare schedule, the proponents assure themselves of loss of medical specialists. This writer believes that is the purpose of the bill, that and one other item ...

Tee Guidotti in an e-mail to LinkedIn asked what happens "if well established practitioners ... turn their backs on injured workers?" The proper reply is that what is actually happening is that the proponents of SB 923 (Deleon) have turned their backs on the specialists and spurned the injured workers at the same time.

That is why SB 923 (Deleon) is opposed by the California Medical Association, California Conference of Machinists, California Society for Industrial Medicine and Surgery, California Chiropractic Association, California Orthopedic Association, California Applicants' Attorneys Association, Latino Comp, The Latina/Latino Roundtable, La Raza Roundtable de California, Voters Injured At Work, Interfaith Community of Los Angeles, LULAC (League of United Latin American Citizens), and by individuals, e.g., Dolores Huerta, Jeffrey Coe, MD, B.J. Hastings, MD, Robert Weinmann, MD, Michael Post, MD, Roger Kent, MD, and many others.

A warning shot against the bill was fired by Stuart A. Bussey, MD, JD, member of the bar, and primary treating physician (PTP) whose committee testimony acknowledged that the bill would give his primary care practice "a boost" but would also leave him "holding the bag" (the malpractice one, methinks) when he would be unable to get specialists for patients who needed specialized evaluations.

... oh yes, I did promise above to mention "one other item," so here it is. My research indicates that U.S. HealthWorks (USHW) asserts it can't easily recruit primary treating physicians (PTPs). So USHW sponsors a bill that would take away money from the specialists and redistribute it to the PTPs. Only the bill doesn't explicitly say that's what USHW management will do.

USHW receives payment for the services provided by its PTPs. A portion of this money goes to the non-physician management company and investors that actually own the PTP clinics. The rest goes to the PTPs for direct patient care. There is no assurance that once the bill passes into law the management company won't increase its own fee to itself. In a nutshell, there's nothing in the bill that would make sure that the money would go to the cadre of beleagured USHW PTPs.

A better way to accomplish the stated goals of the proponents of this bill would be to revise the current Office Medical Fee Schedule (OMFS). In its current form, SB 923 deserves to be thrashed and trashed.

Friday, August 26, 2011


In response to a query from The Alliance for Patient Safety posed by Gil Mileikowsky, MD, a question indicating that there was "confusion" about which side CMA was on in the case of the El-Attar versus Hollywood Presbyterian Medical Center peer review case, the following response was provided by Astrid Meghrigian: "There is no controversy - the Court made a mistake and CMA is working to get it corrected."

Meghrigian attached the CMA brief in support of the physician (relax, just read it -- it's an important judicial statement and it's only 5 pages!). All physicians involved in peer review should read it. So should CMA staff and officers who worked on AB 655 (Hayashi).

John Young, MD, commented on Hayashi's peer review bill: "AB 655 serves no useful purpose and ... should be dumped."

Hayashi's bill spits in the face of the Appeals Court findings in El-Attar versus Hollywood Presbyterian Medical Center because as it's currently written it enables sham peer review. By contrast, CMA says that "peer review, fairly conducted, is essential to preserving the highest standards of medical practice" and that "peer review that is not conducted fairly results in harm to both patients and healing arts practitioners by limiting access to care."

AB 655 (Hayashi) enables sham peer review. The surprise should be that, once this weakness in the bill was discovered, the author declined to make indicated amendments while the CMA continued to sponsor it.

Wednesday, August 24, 2011

AB 655 (Hayashi) versus Osamah A. El-Attar v. Hollywood Presbyterian Med Ctr

"Allowing the Governing Board to select the hearing officer and JRC panel is not an inconsequential violation of the Bylaws. Rather, it undermines the purpose of the peer review mechansim ... 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 directly connected to the physician's livelihood."

AB 655 (Hayashi) flies in the face of this case and needs corrective language in the form of amendments. Better still would be to hold the bill over until next year (making it a two-year bill) so it can be re-worked and re-submitted with language that'll protect against sham peer review.

The California Society of Industrial Medicine and Surgery (CSIMS) filed a letter of "Concern" on August 24th. To the best of this writer's knowledge, the Union of American Physicians and Dentists (UAPD) remains "watch" while the California Medical Association (CMA) remains the sponsor for a bill that looks as though it were written by the California Hospital Association (CHA). In the Osamah A. El-Attar case, 2nd Appellate District, Division 4, B209056, the CMA provided Amicus Curiae on behalf of Defendant and Respondent (Hollywood Presbyterian Medical Center).

Source: Court document "Certified for Paritial Publication," Court of Appeal of the State of California, Second Appellate District, Division Four, filed 8/19/11 (Los Angeles County Super. Ct. No. BS105623).

However, from the CMA website, "Peer Review: El-Attar, MD, v. Hollywood Presbyterian Medical Center," we learn that "Dr. El-Attar's medical staff privileges were not renewed by the hospital's governing Board. Following a finding by the Medical Executive Committee (MEC) that there was no basis for the hospital to deny Dr. El-Attar's reappointment to the medical staff, the hospital bypassed the MEC and picked its own panel and hearing officer over Dr. El-Attar's objections. CMA filed an amicus brief in support of Dr. El-Attar (italics added).

The El-Attar court case and AB 655 (Hayahsi) have in common that they both reflect increasing tension over control of the medical staff. Hospitals want control of physicians. It's an end-run around the bar on corporate practice because it's a way for hospitals to become de facto bosses over physicians' practices. Physicians are supposed to work in the interest of patients, not corporate entities.

AB 655 (Hayashi) as currently written tilts too far in favor of hospital administrations. Unamended, the bill pours physicians' rights and privileges down the proverbial drain. Language recently offered by the California Society of Industrial Medicine and Surgery (CSIMS) could cure this defect. We urge its incorporation into the bill. Absent that, we recommend converting AB 655 into a two-year bill.

Monday, August 22, 2011


AB 655 (Hayashi) is supposed to be about improving peer review in our hospitals. It's supposed to be about protecting patients. The intent of the bill is to create legislation to facilitate the transfer of peer review information among hospitals. Sadly, the bill is so carelessly written that it would also allow false and defamatory material to be transferred. Although this weakness in the proposed legislation has been repeatedly pointed out to the author, the Assemblywoman has remained unconvinced, in part because the bill is sponsored by the California Medical Association (CMA) but not without internal controversy. Some CMA members are mystified that a physicians' organization would support a bill that hands over power to hospital administrations.

One portion of the proposed legislation states that "all relevant (italics added) peer review information ... shall be made available to the licentiate." Fair enough, right? The physician undergoing peer review gets to know what kind of information is being passed around, right? No, wrong!

The word "relevant" is the bug in this sandwich. It means that the hospital in charge of transferring the peer review material and/or the hospital receiving it will get to decide what's relevant or isn't.

Solution: drop the word, "relevant" and make sure that all, all of the transferred information, is given to the physician undergoing peer review.

Another part of the bill lets the hospital off the hook entirely. Here's how it's done: the bill says that a responding peer review organization "is not obligated" to produce the pertinent peer review information unless the doctor undegoing peer review signs a release.

Solution: the responding peer review organization should not release anything at all until and unless the physician undergoing peer review signs a release.

Hayashi and staff have ignored this advice for the entire career of this bill to date. The bill should be annointed The Sham Peer Review Enabling Bill.

AB 655 (Hayashi) in its present form is an invitation to lawsuits, in fact, it's a litigator's dream, a nightmare for good doctors who run afoul of hospital administrations, and a catastrophe for patients.

The California Society of Industrial Medicine and Surgery (CSIMS) is opposed, the Union of American Physicians and Dentists (UAPD) is watch, and the California Neurology Society (CNS) has declined to have a position.

Monday, August 8, 2011


Sham peer review in healthcare occurs when a peer review process in a hospital, foundation, or other medical organization accepts false or defamatory material about a physician as part of a peer review hearing.

A famous non-medical example is that of Fyodor Dostoyevsky, Russian novelist of the late 19th century, author of "Crime and Punishment," who, early in his career, participated in an abortive anti-czarist demonstration. He and his colleagues were arrested and sentenced to death by firing squad. Blind folds on and against the proverbial wall, just as the command to fire was about to be given, they heard a messenger from the Czar gallop onto the execution field with a last minute reprieve. It was learned later that the scheduled execution was a sham.

In the United States sham peer review is escalating. In California the situation is getting a boost from lawmakers.

AB 655 (Hayashi), if passed into law without further amendment, would allow transfer of peer review material from one hospital to another and would allow unproved, false, and defamatory material to be included in the transfer if the hospital transferring the information had allowed the bogus accusations to become part of their own peer review record.

AB 655 (Hayashi) would require a peer review body to respond to the request of another peer review body to produce relevant peer review information and would provide that the information produced is not subject to discovery. The bill would require that all relevant information produced be made available to the licentiate by the requesting peer review body. It would require the the requesting peer review body to indemnify the responding peer review body and would require the licentiate under review to, upon request, release the responding peer review body from liability.

In other words, AB 655 (Hayashi) is skewed to the disadvantage of physicians. What is not fully understood is why the bill is sponsored by the California Medical Association. In fact, the CMA has had a flurry of activity on the bill. This writer has been involved. Here's how: I spoke with the CMA president who arranged for me to speak to the CMA CEO. I recommended that the CMA, sponsor of the bill, make AB 655 into a two-year bill if it could not be suitably amended, e.g., so that the physician under peer review could object to peer review material considered false, inaccurate, or defamatory. A small amendment was inserted into the bill, lines 24 to 27, which help somewhat but not enough. However, without CMA participation even this small amendment could not have been achieved. CMA gets credit for this adjustment even if it's not enough to allay fears that the bill puts even good physicians' careers on the chopping block.

It turns out that CMA officers, trustees, and staff were not in accord on how to handle this bill. The final power to oppose or support the bill was with CMA staff, not with CMA officers or trustees. The bill hands over power to hospital administrations. It might just as well have been written by the California Hospital Administration (CHA).

There is oppostion, most authoritatively from The Alliance for Patient Safety, http://allianceforpatientsafety.org -- I recommend visiting this site. In the meantime, my opinion is that AB 655 is not equitable legislation. It is a virtual firing squad aimed at beleagured physicians who had the temerity to challenge hospital administrations as did Evelyn Li, MD, and Vishendra Rao, MD, viz, LifeForSaleMovie.com, a documentary movie that the undersigned said "explores dangerous nooks and crannies of healthcare that until now have remained hidden from public view."

A temporary solution that would give breathing room to legislators and stakeholeders would be to hold this bill over to 2012. In its current form, AB 655 is likely to be a catastrophe for physicians' peer review, an annoyance for hospitals and foundations, and a bonanza for lawyers.

Friday, August 5, 2011


On August 5, 2011, the Medical Board of California (MBC) took a formal stand in favor of AB 584 (Fong), the bill that will give carpetbagger utilization review physicians their walking papers.

The MBC said that AB 584 "clarifies current law to provide that physicians performing utilization review for injured workers must be licensed in California" and that so doing is in line with the MBC's mission of consumer protection. Readers of The Weinmann Report will remember that the previous governor got his Office of Administrative Law to issue a ruling that allowed non-California licensed physicians to overrule duly licensed California doctors in matters of medical treatment and surgery for injured workers.

Non-California licensed doctors doing utilization review can make huge mistakes of judgement or just be plain careless without risking investigation or discipline by the MBC since they aren't subject to the MBC's authority. They are also not subject to discipline in the states where they have licenses because the medical boards of other states don't have jurisdiction in California. In short, carpetbagger physicians get a free ride and also get paid for it.

Meanwhile, cash-short California gets stiffed. Thanks to former Gov. Schwarzenegger, California has been giving away money-by-the-bucket to non-California licensed doctors who aren't obliged to pay fees to the MBC.

California's licensed treating physicians are required to take a 12-hour course in pain management. This requirement need not be met by their non-California licensed colleagues who under current Schwarzenegger law are allowed to deny care for chronic pain ordered by colleagues who have taken the mandatory training in pain management.

Readers interested in the history of this effort may want to review "How to practice medicine without a license," San Francisco Chronicle, 8/29/08, by this author.

It's time to discard this corruption of utilization review. That aim can be achieved if AB 584 (Fong) becomes law.

As of August 5th AB 584 (Fong) is being held on "suspense" in Senate Appropriations, Senator Kehoe, Chair. The Weinmann Report recommends readers to ask Sen. Kehoe to remove the bill from suspense and to support its passage so Gov. Brown can sign it into law.

Monday, June 27, 2011

US HealthWorks and the RBRVS


SB 923 (De Leon) will increase fees to primary treating physicians while reducing payment to specialists. The sponsor of the bill is USHealthWorks (USHW). Ron Kent, MD, neurologist, spoke at the Insurance Committee hearing and said that close to 80% of neurologists stopped treating injured workers in states that adopted the RBRVS schedule. Stuart Bussey, MD, JD, primary practice physician, speaking at the same committee hearing, said "Even though I'm a primary care doctor and I would get a boost from this, losing access to orthopedic surgeons, neurologists and cardiologists, I'll be cutting my own throat." Bussey then pointed out that without access to specialists the primary treating physician could find himself holding the malpractice bag.

By contrast, workcompcentral reported that Andy Parker, MD, Vice President of USHW, reported that he has not seen any access issues because of the RBRVS fee schedule. Did Dr. Parker pay attention when Dr. Kent and Dr. Bussey testified or did he ignore their testimony?

A further question that merits investigation is the extent to which non-physician corporate ownership, even if only partial, dictates how USHW functions as an entity providing medical care to injured workers. My understanding is that there are two entities, a management company and a medical group. One of the non-physician owners of the management company is Daniel Crowley.

PTPs or primary treating physicians are responsible for getting specialty consultation and care for injured workers, but, as Dr. Bussey indicated, that can't be done if they've left the program. It can't be done, as Dr. Kent indicated, if the majority of neurologists and other specialists quit accepting injured workers as patients.

The extent to which non-physician corporate ownership through the management company plays a role in how the medical group dispenses services is a reasonable area to explore further.

Tuesday, June 21, 2011


Senate Bill 923 (De Leon) is supposed to assist injured workers by increasing access to care. More likely, if it gets signed into law, it'll protect them out of much of the care they currently get.

As if Utilization Review by doctors without licensure in California weren't bad enough, we now have another opportunity to stick it to injured workers by making them subject to the Medicare RBRVS fee schedule. This schedule was tried in Hawaii and in Texas. Both states lost the participation of so many specialists that both states had to increase the conversion factor to keep their specialists in the system. With this dismal record well known in healthcare circles, it remains a wonder that the good Senator De Leon wants to try it out again with injured workers in California as the latest guinea pigs.

The current method of reimbursement to physicians who treat injured workers in California follows the Office Medical Fee Schedule (OMFS) which currently pays doctors some of the lowest reimbursement rates in the USA. If that's so, then how could the RBRVS be worse? The answer is that the Medicare RBRVS is geared to the elderly and provides largely geriatric care whereas the OMFS is geared to injured workers so they can return to work. The RBRVS is supposed to provide care although at the present time even that is in danger because of Section 10320 of the Affordable Care Act and the directive to establish an unelected Independent Payment Advisory Board (IPAB) whose primary purpose is to cut costs to Medicare. Installing the Medicare RBRVS system into workers comp and replacing the OMFS with it only shows that the researchers for SB 923 didn't do enough homework.

If the RBRVS is inserted into the system, we can count on many specialists including surgeons to withdraw from workers comp and industrial medicine. When the injured workers discover as a community that they've been shortchanged -- such discoveries take a few years -- the politicians who put the screws to them will have left office and gone to greener pastures, e.g., some will be working for insurance companies. The legacy they leave if SB 923 gets signed into law will be one of deprivation and denial of care.

Our advice: since SB 923 is expected to be heard in the Assembly Insurance Committee on June 23rd, there's still time to tell 'em what you think by faxing the committee at 916-319-2086 and its Chair, Assemblyman Jose Solorio, 916-319-2169.

Aside from Texas and Hawaii, the RBRVS has been tried in other states, e.g., Florida, Massachusetts, and Maryland, all without success. In this report we've named five states in which the RBRVS failed. The RBRVS should not be foisted upon our injured workers in California. SB 923 (De Leon) desrves to be soundly defeated, badly enough so that it won't come back for a long time.

Wednesday, June 1, 2011

Assembly Bill 584 (Fong): stops the unlicensed practice of medicine

AB 584 (Fong) is an important step in the right direction and should be supported by physicians and by all of their organizations.

As matters stand now, injured workers may legally be denied access to diagnostic tests and treatment needed to diagnose and treat their injuries even when properly prescribed by duly licensed California doctors.

The legal maneuver used to deprive injured workers of indicated and necessary treatment is based on the Schwarzenegger adaptation of utilization review. Utilization review is required by California law -- it's supposed to be a way to supervise treating doctors and prevent overutilization of services. It is primarily a cost control measure.

In 2005 the Schwarzenegger administration persuaded the Office of Administrative Law to agree that utlization review wasn't medical practice and, therefore, did not require California state licensure. Never mind that the Medical Board of California stated that utilization review was certainly an aspect of medical practice. Once the leash was relaxed on the insurance companies, several insurance groups and their management cohorts hired doctors for utilization review who were not licensed in California and who would not, therefore, be required to take the special 12-hour course in pain management that is required of California licensed doctors.

The upshot is that under current law utilization review doctors who are not licensed in California are allowed to overrule California doctors who are licensed in California.

These non-California licensed doctors are not responsible for their mistakes before the Medical Board of California because they're not licensed in California. They're also not responsible to the medical boards of the states in which they are licensed because those states don't have jurisdiction in California.

The non-California licensed doctors are also not obliged to pay licensure fees to the Medical Board -- they get a free ride while their licensed colleagues are obliged not only to pay for licensure but also for a mandatory pain management course.

Injured workers in California are subjected to delays and denials of treatment by doctors who should not have been allowed to practice in California in the first place.

The Schwarzenegger workers comp policy has caused innumerable delays and denials of treatment and has caused countless workers to lose out on the treatment that could have returned them to work.

Physicians in California should reach out in support of AB 584 (Fong). The bill has already passed the Assembly. It should clear the Senate. Then Gov. Brown should sign it into law.

Senate Bill 866 (Hernandez) re prescription drug benefits

SB 866 (Hernandez) will facilitate the efforts of physicians to care for patients. It will ease the burden of prior authorization and utilization review. It will cut down on wrongful delays and denials of treatment.

This bill is analogous to AB 584 (Fong) in that it reduces how utilization review obstructs the practice of medicine. Here are the essential points: only one universal form will be required for prior authorization. The form is supposed to be limited to two pages; however, there's nothing in the bill that specifies font size (rumors that the insurance companies are shopping for microscopic print fonts are probably exaggerated). The information is then supposed to be electronically available and transmissible. Most important, the company has 48 hours to reply. After that, in the absence of a reply, automatic approval of the physician's prescription ensues (even though I can think of a way around that). All the same, the bill is unequivocal in its support of patients and their doctors.

Support can be expected from the pharmaceutical industry which stands to benefit from reduced prior authorization. Opposition can be expected from the insurance industry which benefits from as much utilization review and prior authorization as it can foist on the public and the healthcare profession generally. Practicing physicians should support SB 866.

Assembly Bill 369 (Huffman) re "stepwise" prescriptions

AB 369 (Huffman) will put the brakes on a favored method insurance companies use to control prescriptive medication. The method is "stepwise" prescribing and works like this: doctor Kindguy wants to prescribe the medication he believes will most likely relieve his patient's pain but finds that he is obstructed in so doing by the patient's insurance company which requires the doctor to try at least two lesser level, that is, cheaper medications, first. Doctors will be obliged to follow this pathway even against their own medical judgment and will retain medical liability while the lesser level medications are foisted upon hapless patients.

Huffman's bill will authorize physicians to decide how long a lesser level drug should be used and would restrict the insurance company from requiring patients to try more than two such medications. Insurance companies want to increase profits without increasing premium costs. This way allows them to shift the cost burden to medications. Pharmaceutical companies object because it makes their best, and sometimes their most expensive, medications less accessible. Physicians should be supportive of the legislation because it'll dispense with still another layer of utilization control.

This writer call the office of Speaker Perez and asked that AB 369 be sent to the floor for a vote.

Assembly Bill 310 (Ma) re "tiered pricing" of medications

Assembly Bill 310 (Ma) would put a stop to so-called "tiered pricing" of medications. Currently, an insured person may be required to make co-payment for prescribed medication. Usually the payment will be a fixed amount, that is, a fixed-dollar amount. Insurance companies want patients to pay more for some medicines than others, that is, not a fixed-dollar ammount, but a percentage of the cost. That means patients will pay more for certain medications than for others despite being insured. The percentage may rise or fall at the pleasure of the insurance company which may use this method to delay or defray outright raises in insurance premiums. AB 310 will limit the amount of co-payment that the insurance company can force subscribers to pay. At the time of this writing this legislation would target medications costing more than $150 per month.

Pharmaceutical companies favor the bill because it'll make their medications, especially the expensive ones, more accessible. Physicians should favor the bill because it'll remove one more layer of bureaucratic utilization control. Currently, physicians may prescribe the best medication for their patients only to find out that the insurance company for the patient has put the medication out of reach. Meanwhile, the physician retains medical liability.

Assemblywoman Fiona Ma previously carried AB 245 which would have required government agencies including the medical board to expunge unproved allegations against accused physicians from government websites. That bill did not pass. This one should.

This writer called Speaker Perez's office to request that AB 310 come to the floor for a vote.

Wednesday, April 6, 2011


OBAMACARE, technically, the Affordable Care Act or ACA, is due for a revision, something we were originally told couldn't be done. In our previous piece on this subject, we pointed out flaws in Section 10320, the part of the ACA that creates an IPAB or Independent Payment Advisory Board. This part of Obamacare establishes the authority for an unelected group of bureaucrats, appointed by politicians, to have authority over what is payable and what isn't, including Medicare. Section 10320 poses danger to hospitals, their patients, and their doctors. It is a plain and simple alternative to classical rationing. It's the Obamacare answer to the Palin-protagonists whose fear of rationing began a hubbub that won't end. Senator John Cornym introduced legislation to repeal Section 10320. He has been joined by Congressional Representative Phil Roe. Sponsors and supporters include the American Hospital Association, the American Academy of Orthopedic Surgeons, and the American Osteopathic Association. The general objection is that Section 10320 sets up an unelected IPAB whose members will be responsible to their own patrons, the politicians who appointed them, and that the first casualty will be quality of care.

The rub is that there is a cadre of political activists who, while opposing Section 10320, don't necessarily want to repeal only that section if it means that the rest of the bill would survive. For this cadre it's an all-or-nothing game. Improving the bill is for this group a kiss of near-death since so doing might lessen the drive for total repeal.

The drive for repeal of the 1099 section, however, which would also improve the bill, appears headed for success. The ACA would require all business entities to file 1099 tax forms whenever they buy $600 or more of either goods or services. In the past 1099s were required for purchase of services, e.g., from sole proprietors. This provision applied to services only -- its expansion to goods, e.g., a laptop, was expected to bring in about $20 billion to government. The objections of local doctors' offices, their associations and unions, was joined into heartily by business interests of all kinds. So it looks like Congress agrees and anticipates the signature of President Obama on a repeal bill. Hence, we have a definite crack in the ice. A part of the ACA can be repealed or changed after all. Section 10320 should be next.

Disappointingly, it appears that Budget Chair Paul Ryan has been caught in a statement that would deceive the American voter about Medicare. Ryan announced in the WSJ a plan to provide what he sneakily called "premium support" for Medicare. The idea of "premium support" is to award Medicare recipients a pre-decided amount of money and then let the recipients find and purchase their own health care on the private market. The fiscal motivation is to reduce Medicare inflation. So far, so good. But Ryan couldn't resist saying that "Medicare beneficiaries will be enrolled in the same kind (bold added) of health care program that members of Congress enjoy." False, false, false! The program Members of Congress get pays them a fixed percentage of costs, hence, the amount rises if the costs rise. By contrast, the program for Medicare recipients would award only fixed costs that would not automatically go up if Medicare costs were to rise. The expectation is that Medicare costs would go up and leave the fixed costs mired in the dirt.

Ryan's explanation was either a big mistake or an attempt at deception. In any case, his explanation is wrong and will deservedly cost him credibility.

Tuesday, March 8, 2011


Hospitals may hire physicians to manage specialized departments. These physicians aren't hired to practice medicine since in California so doing violates the state's prohibition against the corporate practice of medicine. The purpose of this prohibition is to prevent hospitals from controlling doctors and to prevent doctors from being under the thumb of corporate hospital interests. An example would be hospitals that push doctors to discharge patients too soon to increase utilization and enhance the bottom line. Such complaints are taken seriously and may lead to investigation. Some hospitals have come under the gun for allowing unindicated and unnecessary surgeries to be done.

On the other hand, it is not a violation of the corporate practice act to hire a doctor to manage a group of specialists. The stated purpose is to make sure that staffing is covered around the clock, to make sure that the most highly qualified doctors are hired, and to optimize patient care by retaining professional management. That's the theory.

Here's what we've heard as a variation on the theme.

Hospital X hires a physician manager. His job is to hire as many specialists as he judges necessary to cover the hospital's promise of service to the community. His allocation or budget for this administrative job is, let's say, $100,000 per month or a total of $1,200,000 per year. This amount is not his take-home pay. He in turn is supposed to form a specialty group and hire the doctors who'll actually provide service. Let's say the administrator hires a group of doctors whose combined pay is $50,000 per month or $600,000 per year. The administrator is then entitled to the other $600,000 for himself.

Let's say the administrator-doctor judges that he'll need 6 doctors. He knows that he's allotting a total of $600,000 to pay for their services -- so that's $100,000 for each of the hired doctors. Now the trick is to hire them at less than the allotted $600,000. If the administrtor-doctor can hire them at $75,000 each, saving $25,000 from each one of them, he can pay himself $150,000 more than the $600,000 originally envisioned. He now gets $750,000. The actual treating doctors get $450,000. They are not hospital employees. They are employees of the owner or founder of the group. There is no violation of the corporate practice act.

There's nothing illegal in this arrangement. Since the hired doctors are unlikely to be skilled in collective or even solo bargaining through unions, they're easy prey. When they find out that they can unionize, they'll be afraid to make the move. Fear is key. Some doctors retained for this administrative role understand better than others how to hire doctors who'll be less likely to complain about hours, working conditions, or pay -- the tricks of the trade include understanding ethnic, gender, and family differences. In some cases the key to getting hired may be how little one will accept in payment or how much overtime one may be willing to contribute. Credentialing becomes secondary.

"Medical Red-lining, Economic Credentials for Physicians," is the title of my op-ed from the San Francisco Examiner, 12 January 1995. It tells one way that corporate entities select doctors -- by determining which ones spend the least on diagnostic testing and therapeutic options for their HMO patients. This piece was reprinted in The Congressional Record, Vol. 144, # 118, 9/9/98. The trouble is that hospitals have learned how to act like HMOs.

The Los Angeles Times in its edition of 5 March 2011 published this story by Sam Allen: "State controller finds more big public employee salaries, including $875,000 for hospital chief." Nancy Farber, CEO of the Washington Township Healthcare District with its major hospital in Fremont, is reported to have been paid total wages in 2009 of $873,598.

The next step should be to review departmental expenses to learn how each department's budget was distributed. This effort would require prying into what some recipients might consider private business. It could be discomforting. It should be done.

"As They Consolidate, Hospitals Get Pricier," by Julie Appleby, produced by Kaiser Health News in collaboration with The Washington Post, 9/26/10, tells us in the title what we need to know. Are some administrations paying out so much to executives that there's not enough left for actual medical and surgical care? On the other hand, if "pricier" is connected to "better," there would be less room for complaint.

"State Report: Even fewer bypass surgery deaths," by Tom Abate, San Francisco Chronicle, 4/08/09, points out that the average mortality rate for this surgery in California was 2.65 percent but that Washington Hospital in Fremont reported a mortality rate of 5.83 percent for one of its surgeons. The trouble is that statistics don't take into account individual variation on a case-by-case basis. The rub comes when one asks the inevitable question, namely, was quality of care sacrificed on a monetary altar of greed so that executive compensation could be raised?

San Francisco Chronicle, 3/09/11, states that one of the "biggest winners" in health care, "No. 1 on the list is Nancy Farber, the CEO if Washington Township Health Care District in Fremont, who took home $873,598 last year." Washingon Hospital has 339 beds. This piece then states that "by comparison, Mark Laret, who heads UCSF's 690-bed hospital system, was paid $748,616."

People need to know how the health care dollar is distributed. Are hospital CEOs more valuable to hospitals than their physicians, surgeons, and nurses? One may reasonably ask if there's any relationship of administrative compensation to contracted out services that skedaddle around the corporate practice act.

Monday, February 21, 2011

Wisconsin, Ohio and California

Governor Walker of Wisconsin is fighting hard to be recalled. His wish to follow former Gov. Gray Davis of California into political exile deserves to be honored.

Govenor Kasich of Ohio also evidently wants to be recalled although he doesn't know it yet. He should be obliged. Both Governors Walker and Kasich, once they recognized urgent fiscal situations, immediately sought to destroy collective bargaining.

The citizens of Wisconsin and Ohio deserve better than they're getting and should increase efforts to recall their respective governors. Since one of the issues is pensions, we need to ask this question: were either Gov. Walker or Gov. Kasich to retire today, what would their pensions be? Once we know that, we can decide whether we think their pensions need trimming.

While we're at it, we should ask if it's correct that in Ohio corporations have been released from over $100,000,000 in taxes. If that assessment is correct, then that situation needs to be addressed not only in Ohio and Wisconsin but in every other state where earmarks have been a staple of business life.

These issues impinge upon healthcare delivery. In California when Arnold Schwarzenegger followed Davis into office, his first step was to set aside as much of collective bargaining as he could and to ruin workers' compensation for injured workers. Schwarzenegger enabled insurance companies to use doctors without California licenses to overrule and deny care prescribed to injured workers by duly licensed California doctors. The assertion was that this step would save money for the state. In reality, businesses saved some money but the huge beneficiaries were the insurance companies who used and continue to use one slick trick after another to deny care to injured workers.

Injured workers in California have wrongfully been denied care that was won in collective bargaining. Thanks to collective bargaining, however, California's injured workers are not without power and the ability to fight back. Walker of Wisconsin and Kasich of Ohio want to go further. They want to strip the workers, injured and uninjured alike, of any power to fight back. Such a move would be a boon to insurance companies that will be enabled to deny care as though there were no tomorrow. For some injured workers, tomorrow vanished yesterday.

It is fair game for the governors to seek reforms in pensions and to advocate for cost-sharing in healthcare. The unions have already agreed to that. But that's not enough for Gov. Walker or Gov. Kasich. Their purpose is not to establish equity but to ruin the unions and to destroy collective bargaining. That is why they deserve to be recalled and, if possible, sent into retirement without pensions.

AFSCME, AFL-CIO, and the Union of American Physicians and Dentists have repeatedly picked up the gauntlet that Governor Schwarzenegger threw into the faces of honorably employed public servants. In 2006, AFSCME, AFL-CIO, passed a resolution stating that Utilization Review doctors should be licensed in the states where they practice. But even Gov. Schwarzenegger wasn't autocratic enough to try to rescind the right to bargain collectively. Walker and Kasich display an arrogance that even Terminator Arnie couldn't quite muster. The solution in California was for Schwarzenegger to run out his string and then to vote down his retainers. The solution in Wisconsin and Ohio is for citizens to agree that pension and healthcare adjustments are indicated. They should then recall Governors Walker and Kasich. There is a moral to the story: protection of our rights requires eternal vigilance.

Tuesday, January 4, 2011


by Robert L. Weinmann, MD

In the Superior Court of California, County of Alameda, a
peer review drama is unfolding. Petitioner R.V. Rao has taken on Washington Township Health Care District, Respondent, re its judicial review committee.

In a nutshell, a conflict is now in about its 8th year. The conflict arose after Dr. Rao questioned administrative proceedings in the hospital and indicated that conflicts of interest may exist between optimal medical care and profitability. Doctor Rao reported his findings to appropriate official agencies. The agencies found fault with the hospital and reportedly told the hospital that Rao had complained. Rao's confidential cover as a whistleblower was blown. This scenario set the stage for on-going conflict. At a judicial review hearing called "JRC1" or "Rao I" Doctor Rao was involuntarily terminated from the Washington Hospital medical staff. Eventually, there was a second peer review proceeding called "JRC2" or "Rao II."

The court document, # HG10540985, refers to the hearing as "JRC2" and "Rao II." Respondent Washington Hospital wanted "to strike portions of the Petition pertaining to the second peer review proceeding." The court document states that "the motion is DENIED."

The document stated that "the motion of Respondent Washington Township Health Care District to strike portions of the Petition of Petitioner R.V. Rao for Writ of Mandamus is DENIED in part and GRANTED in part."

The petition then indicates that a "second judicial review committee ... completed proceedings into charges made June 4, 2007 on June 5, 2010." The court document refers to "the first judicial review committee ... to terminate Petitioner's medical staff membership."

In reference to the 2nd hearing, Washington Hospital sought to "strike portions of the Petition pertaining to the second peer review proceeding." This motion was denied. What is the material that the hospital wanted to strike?

We know that Dr. Rao appeared as a discussant in the movie, Life For Sale, available on DVD and on-line as www.lifeforsalemovie.com.

I am personally on record about this movie, having stated that it "explores dangerous nooks and crannies of healthcare that until now have remained hidden from public view."

Rao appears in the movie as a discussant about peer review. Although he does not mention any hospital by name or present himself as any hospital's spokesperson, his comments have been taken as critical of Washington Hospital. The movie has had public viewing including 13 minutes of the movie shown at a Continuing Medical Education seminar on Sham Peer Review sponsored by the Union of American Physicians and Dentists and the University of California at Irvine.

In general the movie suggests that conflicts of interest may exist between optimal medical care and optimal financial gain. Some critics feel that Rao's participation in this movie solidified opposition against him.

In the meantime, Washington Hospital has made spectacular financial progress despite miserable economic times. The San Jose Mercury News' report by Matthew Artz, 12/27/10, states that the hospital's CEO, Nancy Farber, would get a salary increase from $614,000 per year to $632,000 with total compensation set at about $857,000 ($245,502 in performance bonuses). Washington Township health care district board member Bernard Stewart was quoted as saying "in my opinion it is hard to describe our CEO's performance this year as anything other than outstanding."

Meanwhile, in the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, Anthony Colantonio, respondent, versus Mercy Medical Center, we have language stating that "the defendants were not entitled to immunity under 42 USC 11112 (a)..."

Doctor Colantonio was asked why his hospital was taking him on. Colantonio replied "I spent seven months writing letters about patient care issues that needed to be corrected. This was after two years of complaining verbally. I could no longer look the other way while patients were dying. They found my conduct 'disruptive.' "

Peer Review privacy, for which I personally have testified in the California legislature, is now under the gun and, regrettably, perhaps with good reason if it can be shown that the process is being subverted. The doctors in the Colantonio case are now subject to civil lawsuits since providing false testimony is not protected under the Health Care Quality Improvement Act.

At the same time, doctors who take on hospital administrations or who are felt to be too vigorous in their protests run the risk of being called "disruptive," which in turn can lead to hospital discipline and adverse reports to state medical boards (these reports are known as 805s in California).

In Rao's case, the court is being asked to undertake judicial review in order to overturn the termination order from the Washington Township Health Care District Board of Directors.

My opinion was stated at one of the hearings where I testified at Washington Hospital on behalf of Dr. Rao. I pointed out that had the doctors in Redding spoken out and questioned the administration as well as their own colleagues, the catastophic conduct reported to have occurred there -- including unnecessary operations -- would have been nipped in the bud.

Doctor Rao acted honorably. He should be exonerated and restored to full privileges at Washington Hospital.