The Sham Peer Review – Info and Facts That You Need To Know
Healthcare quality is a very important aspect of society, which is attributable to the fact that it involves the life and welfare of people. And this is why the Healthcare Quality Improvement Act (HCQIA) was enacted into law.
In general, the purpose of the Texas law is to protect the public from incompetent Texas physicians and medical practitioners who, because of their failure to exercise the necessary diligence have caused injury or may cause injury in the future if corresponding issues are not resolved immediately.
As provided by the HCQIA, (in Texas) incompetent physicians may be removed by peer review committees, which are composed of different medical practitioners who will openly and honestly assess the acts and practices of a particular physician and will make the necessary recommendations thereafter.
It must be noted, however, that in these proceedings, members of the peer review committees are given a cloak of immunity, which means that they are immune or are exempted from any retaliatory lawsuits that the defendant physician may file in light of the proceedings against him.
According to legal experts, this immunity was provided by the law in order to avoid a “chilling effect” on the members of the peer review committee and was designed primarily to have an honest and transparent review of erring and incompetent medical practitioners.
Unfortunately, several reports have come out stating the existence of Sham Peer Reviews, wherein committee members have abused their respective immunities. In these sham proceedings, members have falsely provided negative and damaging reviews to the defendant medical practitioners – not for the purpose intended by the law, but for malicious and personal reasons, such as political gains or professional competitions.
In light of these considerations, doctors, physicians and medical practitioners are encouraged to seek the help of a Texas Sham Peer Review Lawyer accordingly for the protection of their rights, and to ensure that the purpose and wisdom of the law is aptly followed.
Sham Peer Review – Specific Aspects And Procedures
Although a legitimate Peer Review has honourable purposes, the Sham Peer Review on the other hand, undertakes to remove the rights of a defendant medical practitioner, by hiding under the principles of “protecting the public”, “immunity” and other misuse of the provisions of HCQIA.
In some instances, a defendant is punished from his practice because of false allegations that he is not following the standards and guidelines set by his profession – and this despite the defendant showing the necessary pieces of evidence and literature in support of his defense. In other words, in this “sham” proceeding, the committee members will be creating their own standard of care, just for the purpose of prejudicing the defendant.
In other scenarios, outside review committees may be commissioned, not for the purpose of providing objective reviews and recommendations, but for providing “pre-arranged” reviews or decisions in accordance with the malicious desires of a particular employer.
Indeed, with these aforementioned circumstances, one will need to find a Sham Peer Review Lawyer to provide the necessary actions and defenses necessary. Otherwise, this will only lead to an injustice not only to the defendant, but to the entire system itself.
Immunity of Sham Peer Review Committee Members
As mentioned earlier, member of the Peer Review Committee are protected by a cloak of immunity for whatever decisions that they may have rendered. However, the law provides certain regulations in order to ensure that the objective of the law is met. Here are the said provisions:
- Action Based On Reasonable Belief – in order to aptly apply the immunity provisions of the HCQIA, a member must be of the reasonable belief that the action instituted was for the purpose of instituting quality healthcare and nothing more. However, in a line of cases decided in this jurisdiction, allegations stating that the action was due to bad faith, personal reasons and biases have been struck down by the Court – and the committee member’s immunity from suit was upheld.
- Exertion of Reasonable Effort To Obtain Facts – the HCQIA provides that in order for Peer Review Committee members to claim immunity, they must have had exerted the necessary degree of effort to obtain as much facts as necessary to have an objective and fair review of the matter at hand. Hence, they must be able to show that they have reviewed a substantial part of the physician’s practice, and that they have the necessary expertise that will allow them to reach a fair and objective decision or review accordingly.
- Notice and Fair Hearing Accorded to the Defendant – the HCQIA requires that certain procedural requirements be met. Among others, the law requires that the physician be notified of the impending action against him, as well as the reasons for the same.
He must also be informed of his right to a hearing – which must be done within 30 days. In addition, the defendant-practitioner must also be notified of procedures that will entail the hearing against him, including the witnesses that are to be called. He also has the right to be represented by a Sham Peer Review Lawyer or counsel, to record the proceedings, and the right to call witnesses in his favour and to cross-examine adverse witnesses. Furthermore, the HCQIA also requires that there be a written report of the hearing and the decision reached by the committee.
- Reasonable Belief That The Action Was Warranted By Facts – the HCQIA requires an objective standard to be followed during peer reviews, which must be followed accordingly. As a rule, bad faith is immaterial during these proceedings – but the basis of the hospital’s actions should have been done in accordance with the objective review and appreciation of facts. And again, this is in consonance with the members’ immunity from any subsequent suits in relation with the said peer reviews.
At present time, there are numerous conflicts and reviews questioning the provisions of the HCQIA, and its effects on good physicians and medical practitioners. This is in light of those who are made subject to the said peer reviews not due to professional reasons – but due to the malicious acts of competitors and unscrupulous companies.
Hence, it can be gleaned that the services of a Sham Peer Review Lawyer is needed to put things on the right track, as he will be able to efficiently use the law to the advantage of his clients, for the protection of their rights and to ensure that the medical profession, as a whole, is aptly protected.