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.