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, -- 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,, 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.

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