Showing posts with label peer review. Show all posts
Showing posts with label peer review. Show all posts

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.

SHOPLIFTING POLITICIANS is the title of the post on JUDICIAL COUNCIL WATCHER.

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.

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): 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.

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.

Tuesday, January 4, 2011

PEER REVIEW: ON A COLLISION COURSE WITH FINANCE, USED TO SILENCE PHYSICIANS, DOCTOR RAO STANDS FIRM AGAINST THE ODDS.

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.