Hospital Peer Review Standards and Due Process: Moving From Tort Doctrine to Contract Principles Based on Clinical Practice Guidelines

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Hospital Peer Review Standards and Due Process
Moving From Tort Doctrine to Contract Principles
Based on Clinical Practice Guidelines

• Professor Katharine Van Tassel

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Institute of Medicine, To Err is Human (1999)

• 44,000 to 98,000 patients die each year in
  hospitals from medical mistakes
• Number of casualties equivalent to one jumbo jet
  crashing every day for one year

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Peer Review

• State Licensing Boards
• AMA / Professional Organizations
• Hospital Peer Review

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Summary of Presentation

• How peer review hearings are conducted
• Health Care Quality Improvement Act
• Schism in the courts over the current standards
• Problems inherent in the various vague categories
  of standards
• Solution Clinical Practice Guidelines (CPGs)

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Stakeholders in Peer Review

• Physician
• ability to practice profession
• Hospital
• autonomy in staffing decisions, quality patient
  care, avoid liability
• Patients
• quality medical care access to personal
  physician (Medicaid / Medicare)

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Physicians Interests
Staff Privileges Property Right
Access to hospital essential precondition to
practice
National Practitioners Data Bank
Licensure Boards and Insurance Provider
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2. Medical Staff Executive Committee (MSEC)
2. Medical Staff Executive Committee (MSEC)
1. Department Chair Or Chief of Medical Staff
Issues Complaint
3. Ad hoc Committee (AHC) Conducts Investigation
3. MSEC Conducts Investigation
4. AHC Issues Charges/ Corrective Action
4. MSEC Issues Charges And Corrective Action
5. Appeal to Board of Directors Conducts
Hearing
6. Appeal to Board Of Directors
5. Appeal to MSEC Conducts Hearing
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Role of the Courts

• Judicial Review
• High level of deference to evaluation of clinical
  competence
• Application of basic principles of fairness and
  due process of law

Fairness of Standards In Theory

• Standards used to evaluate physician competency
• Must be fair
• Must be reasonable
• Must not be subject to arbitrary/capricious
  application

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Misconduct Standard Unconstitutionally Vague

• no one disputes the power of the university
  to protect itself by means of disciplinary
  actions against disruptive students. Power to
  punish and the rules defining the power are not,
  however, identical. Power alone does not supply
  the standards needed to determine its application
  to types of behavior or specific instances of
  misconduct.
• Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969).

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Procedures And Hearings
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Procedures And Hearings
Very Little Protection
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Procedures And Hearings
Very Little Protection
Without Rules And Standards
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Procedures And Hearings
Very Little Protection
Without Rules And Standards
To Give Content To Proceedings
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Procedures And Hearings
Very Little Protection
Without Rules And Standards
To Give Content To Proceedings
The Idea of a hearing is fine. But what is to be
heard? Block v. Thompson (5th Cir. 1973)
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Clearly Articulated Standing Rules
Provides Fair Notice Of Conduct That Will Be
Sanctioned
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Clearly Articulated Standing Rules
Avoids Arbitrary Capricious Decision-making
Limits Allocation Choices Of Officials
Provides Fair Notice Of Conduct That Will Be
Sanctioned
Choices Based On Principles Not Personal
Preferences Of Officials
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Are Clear Standards Possible?
Small Minority
Specific Criteria
Objectively Applied
Achievable and Necessary
To Provide Notice
To Avoid Decisions Based On Whim And Caprice
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Are Clear Standards Possible?
Large Majority
Small Minority
Specific Criteria
Impossible /Undesirable
Objectively Applied
Standards Shift Rapidly
Achievable and Necessary
Human Lives At Stake
To Provide Notice
Better To Allow Unfair Denial Of Staff
Privileges Than Harm To Patients By Unlimited
Access To Hospitals
To Avoid Decisions Based On Whim And Caprice
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Majority Concedes

• Common procedure employed for appointment
  whereby members of the Active Staff (generally
  older, more established practitioners) hold the
  life line on the younger doctors by virtue of the
  fact that their recommendation is required for
  appointment.
• Grants the exclusive use of a tax supported
  institution to the doctors who agree among
  themselves that they are the most competent.

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This Split Raises 3 Questions

• 1. How vague are the standards ?
• 2. Do they properly balance of the interests of
  the stakeholders while furthering the goals of
  peer review?
• 3. Is it possible to create clearly articulated
  standards that both properly balance the
  interests at stake and further the goals of peer
  review?

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Two Main Categories Of Standards

• Grant absolute discretion to the decision-makers
• Customary care in the medical community

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Case of Stan and Dharva

• Dharva brilliant
• new comer
• cutting edge
• practices

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Case of Stan and Dharva

• Stan long timer/lags
• behind
• political capitol

• Dharva brilliant
• new comer
• cutting edge
• practices

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Case of Stan and Dharva

• Stan long timer/lags
• behind
• political capitol

• Dharva brilliant
• new comer
• cutting edge
• practices

Appoints as Department Chair
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Standards Granting Absolute Discretion To The
Hospital

• Right to remove whenever in governing bodys
  sole judgment the good of the hospital or the
  patients therein may demand it
• Best possible care or adequate medical care
  or high quality medical care or unprofessional
  conduct

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Clearly Articulated Standing Rules
Avoids Arbitrary Capricious Decision-making
Limits Allocation Choices Of Officials
Provides Fair Notice Of Conduct That Will Be
Sanctioned
Choices Based On Principles Not Personal
Preferences Of Officials
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Standard Customary Care

• Two Questionable Assumptions
• That there are standards of care for the
  diagnosis and treatment of medical conditions
  that are commonly known, and agreed upon, in the
  medical community
• That adherence to customs furthers quality of
  care

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Herniated Disc
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Is Surgery The Best Way To stop Back Pain?

• Herniated Discs
• Study of 1,200 patients same result with or with
  out surgery
• Surgery?
• Depends on where you live
• 20x more likely to have surgery if live in Idaho
  Falls, Missoula, and Mason City than if you live
  in Newark, Bangor and Terre Haute

• It is so interesting that geography is
  destiny. Dr. James Weinstein

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Surgical Signature Phenomenon

• In the absence of professional consensus based on
  outcomes (evidence-based medicine)
• Individual or small groups of physicians can hold
  onto idiosyncratic clinical rules of thumb
  defining who needs surgery
• In a given region, local physicians tend to apply
  their rules of practice consistently
• This results in the surgical signature
  phenomenon rates for specific surgical
  procedures that are idiosyncratic for a region
• Sometimes differing dramatically among
  neighboring regions

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Surgical Signatures
New York
Chicago
Detroit
San Francisco
Washington-Baltimore
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Surgical Signatures

• Rate of spine surgery in Bradenton, Florida 75
  greater that in neighbors to the north, Tampa,
  Florida

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Surgical Signatures

• 50 more likely to get hip replacement surgery if
  live in Fort Lauderdale than if you live in Miami

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Maine Hysterectomy 70 y.o. women
One hospital Market 20
Equivalent Hospital Market 70
Iowa Prostatectomy 85 y.o. men
Equivalent Hospital Market 60
One hospital Market 15
Vermont Tonsillectomy kids
One hospital Market 8
Equivalent Hospital Market 70
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Failure to Deliver Essential Treatments for
Common Causes of Death

• Aspirin w/in the first 24 hours after a heart
  attack 30 ?? rate of survival
• 3,500 hospitals studied physicians failed to
  give to 1/16 patients
• Total of 12,000 patients in 2004 alone
• ? simple life saving treatment

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• Wide variation, from state to state, from
  hospital to hospital and from physician to
  physician within the same hospital, in whether it
  is customary treatment
• Massachusetts hospitals provided treatment 100
  of the time.
• Arkansas provided the treatment only 85 of the
  time.
• Most states, some hospitals provided treatment
  100 vs others in the same community provided it
  only 50 of the

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Assumption that adherence to customs furthers
quality of care?

• Custom to provide long-term hormone replacement
  therapy (HRT) in post-menopausal women to reduce
  coronary artery disease
• Randomized trial showed that HRT resulted in a
  higher risk of heart attacks, strokes and blood
  clots
• Custom to give anti-arrhythmia drugs to everyone
  who experienced irregular heartbeats after a
  heart attack because severely irregular heart
  beats could rapidly turn fatal
• Randomized trial showed that patients with only
  mildly irregular heart beats were more likely to
  die if given anti-arrhythmia medication

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Two Additional Problems

• Physician agreement regarding quality of care is
  only slightly better than the level expected by
  chance.
• Apply locality, the same or similar community, or
  national standard?

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Clearly Articulated Standing Rules
Avoids Arbitrary Capricious Decision-making
Limits Allocation Choices Of Officials
Provides Fair Notice Of Conduct That Will Be
Sanctioned
Choices Based On Principles Not Personal
Preferences Of Officials
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In-house Standards

• Measured by the
• Hospitals standard of competence
• Standard of the hospital
• Standard of the medical staff
• General standards of the surgical committee.

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Super-locality Rule In-house Measurement

• Majority of states reject the locality rule
• Resources available to keep pace with modern
  trends
• Availability of experts
• Insularity sub-standard degree of care and
  skill

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Clearly Articulated Standing Rules
Avoids Arbitrary Capricious Decision-making
Limits Allocation Choices Of Officials
Provides Fair Notice Of Conduct That Will Be
Sanctioned
Choices Based On Principles Not Personal
Preferences Of Officials
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Vagueness No Fundamental Fairness

• No notice to physicians
• No limit on the discretion of the decision makers
• No opportunity for meaningful judicial review
• Unlink decisions from quality of care concerns
• No justification for limitation of access to
  judicial system

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Alternative Contractual Language

• Expectations of performance CPGs
• Avoid pitfalls of standard of care measurements?
• More equitable balancing of the stakeholders
  interests?

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Clinical Practice Guidelines (CPGs)

• Institute of Medicine
• Systematically developed statements to assist
  practitioner and patient decisions about
  appropriate health care for specific clinical
  circumstances.
• Based on clinical outcomes and effectiveness
  research
• Integration of powerful computer technologies
  treatment data
• Optimum treatment approach

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CPGs

• Enhance the quality of care
• Reduce variation in practice
• Encourage best medical practice
• ? cost of care (lower cost choices with same
  outcomes)
• Examples
• American College of Physicians, Clinical Efficacy
  Assessment Project
• American College of Obstetrics and Gynecologists
  (ACOG)
• American Academy of Pediatrics
• Harvard CPGs for anesthesia administration
• The American College of Cardiology (ACC)

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Cardiology Department
Working Committee
Reviews CPGS From ACC
Accepts/ Rejects Modifies To Fit Practice Group
Paternalistic Libertarian Model Cass
Sunstein Richard Thaler U. of Chicago
Proposes CPGs To Cardiology Department
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Clearly Articulated Standing Rules
Avoids Arbitrary Capricious Decision-making
Limits Allocation Choices Of Officials
Provides Fair Notice Of Conduct That Will Be
Sanctioned
Choices Based On Principles Not Personal
Preferences Of Officials
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Benefits

• Conform to norms ex ante increasing patient
  safety
• Clear notice deterrence
• Decrease risk of caprice / discrimination
• Meaningful judicial review
• Equitable balance of stakeholder interests
• Decrease transactional costs
• Decrease reluctance to engage in peer review
• Use of evidence based medicine
• Switch from ad hoc judicial decision making to
  rule making