Can Doctors Speak Their Minds Without Getting Into Trouble?

Leigh Page

Disclosures

April 03, 2014

In This Article

Risks to Physicians Who Speak Up

Allan Tobias, MD, JD, a California consultant who holds a law degree and advises physicians who are in trouble with hospitals, said risks to physicians for speaking out have been rising in recent years.

Not so long ago, if a physician defied hospital administrators or powerful colleagues, an administrator "would put his arm around your shoulder and say, 'Let's have a little talk,' and the matter could be settled," he said. But now, hospitals want to lawyer up, restrict contact with the physician, and litigate endlessly, until the doctor gives in.

Dr. Tobias traced this change back to passage of the Healthcare Quality Improvement Act (HCQIA) in 1986, which was meant to protect hospitals from doctors who threaten quality of care. In recent years, he said, this federal law is being applied more broadly to physicians who are threatening hospital leadership but have not done anything wrong.

The HCQIA gives unusually broad powers to hospitals and their handpicked peer review committees, made up of physicians, which decide on the disciplined doctor's case, Dr. Tobias said. The law states that peer review is immune from legal actions if it meets 4 broad requirements. For instance, the hospital must have "a reasonable belief" that it's promoting "furtherance of quality healthcare" and make "a reasonable effort" to obtain the correct facts.

Sham Peer Review

Hospitals' misuse of these powers is often called "sham" peer review, said Richard Willner, DPM, a podiatrist who heads the Center for Peer Review Justice in New Orleans, which advises physicians caught up in these decisions.

Dr. Willner said targeted physicians don't get the basic due process rights that anyone else can get in a court of law. "There is no federal statute that requires peer review committees to observe due process," he said, adding that the panels are not required to provide notice of allegations or a list of witnesses, or allow for legal representation, which are all due process rights. This makes peer review a highly effective way to silence physicians. Although they can appeal their case to the courts, no more than 5% of these lawsuits are successful, he said.

When physicians' privileges are limited or withdrawn, this becomes a permanent mark against them, according to Dr. Tobias. They are automatically reported to the National Practitioner Data Bank (NPDB), which prospective employers or hospital credentialing committees are required to consult. Even if the physician is later exonerated, it's extremely difficult to expunge the NPDB listing, he said.

Dr. Tobias said the pressure to remain silent is greatest for employed physicians, because typically their contracts say they can be fired at any time, without cause. Generally, these physicians "don't want to rock the boat," he said. "They want their want to get their paycheck and go home."

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