Is physician peer review a legal trap?

Does the peer review process do more harm than good? Despite the lofty goal of quality care, critics argue the process has turned more into sham peer review, used to identify or punish physicians in lawsuits. Hospital administrators and physicians, alike, are growing concerned that the process traditionally used to help or point out ineffective, unethical or impaired physicians and protect patients is losing its confidentiality, Medscape reported.

Confidentially has been the cornerstone of the internal process, but recent cases have used the peer review information, declaring that certain facts are discoverable.

For instance, in the 2011 medical malpractice case in Kentucky, Fancher v. Shields, the court pointed out the complicated nature of using peer review information. The court said, "The language of the [Patient Safety and Quality Improvement Act of 2005] appears to be contradictory in that it declares a privilege and then claims that it does not 'limit ... the discovery or admissibility of information described in this subparagraph in a criminal, civil, or administrative proceeding,'" Medscape noted.

Some physicians are speaking out against the potential ramifications of using peer review documents in court. The peer review process rids hospitals of inconvenient physicians, the Association of American Physicians and Surgeons (AAPS) said in a statement last week.

In New Mexico, William K. Summers, a physician in internal medicine and psychiatry, declared it "open season" on doctors. Summers, at the center of a case with Lovelace Health System and operator Ardent Health Services, said in a Journal of American Physicians and Surgeons article, the court decision (Summers v. Ardent Health Services and Lovelace Health System) changes the rules concerning summary judgment to "permit mere accusations by a hospital to be deemed facts regardless of their origin or truthfulness." It thus "eliminates the process of discovery and depositions in which hidden facts become known."

For more information:
- read the Medscape article (registration required)
- read the AAPS statement
- here's the Journal of American Physicians and Surgeons article (.pdf)

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