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

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


1
Hospital Peer Review Standards and Due Process
Moving From Tort Doctrine to Contract Principles
Based on Clinical Practice Guidelines
  • Professor Katharine Van Tassel

2
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

3
Peer Review
  • State Licensing Boards
  • AMA / Professional Organizations
  • Hospital Peer Review

4
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)

5
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)

6
Physicians Interests
Staff Privileges Property Right
Access to hospital essential precondition to
practice
National Practitioners Data Bank
Licensure Boards and Insurance Provider
7
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
8
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

9
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).

10
Procedures And Hearings
11
Procedures And Hearings
Very Little Protection
12
Procedures And Hearings
Very Little Protection
Without Rules And Standards
13
Procedures And Hearings
Very Little Protection
Without Rules And Standards
To Give Content To Proceedings
14
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)
15
Clearly Articulated Standing Rules
Provides Fair Notice Of Conduct That Will Be
Sanctioned
16
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
17
Are Clear Standards Possible?
Small Minority
Specific Criteria
Objectively Applied
Achievable and Necessary
To Provide Notice
To Avoid Decisions Based On Whim And Caprice
18
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
19
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.

20
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?

21
Two Main Categories Of Standards
  • Grant absolute discretion to the decision-makers
  • Customary care in the medical community

22
Case of Stan and Dharva
  • Dharva brilliant
  • new comer
  • cutting edge
  • practices

23
Case of Stan and Dharva
  • Stan long timer/lags
  • behind
  • political capitol
  • Dharva brilliant
  • new comer
  • cutting edge
  • practices

24
Case of Stan and Dharva
  • Stan long timer/lags
  • behind
  • political capitol
  • Dharva brilliant
  • new comer
  • cutting edge
  • practices

Appoints as Department Chair
25
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

26
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
27
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

28
Herniated Disc
29
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

30
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

31
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32
Surgical Signatures
New York
Chicago
Detroit
San Francisco
Washington-Baltimore
33
Surgical Signatures
  • Rate of spine surgery in Bradenton, Florida 75
    greater that in neighbors to the north, Tampa,
    Florida

34
Surgical Signatures
  • 50 more likely to get hip replacement surgery if
    live in Fort Lauderdale than if you live in Miami

35
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
36
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

37
  • 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

38
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

39
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?

40
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
41
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.

42
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

43
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
44
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

45
Alternative Contractual Language
  • Expectations of performance CPGs
  • Avoid pitfalls of standard of care measurements?
  • More equitable balancing of the stakeholders
    interests?

46
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

47
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)

48
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49
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
50
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
51
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
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