Is Hospital Peer Review a Sham? Well, Mostly Yes

Dr. Sidney Wolfe, healthcare’s answer to Ralph Nader, spends most of his days unhappy with somebody.  Pragmatic, see-both-sides types like me naturally recoil from Wolfe’s reflexive indictment of institutions ranging from the FDA to Medicare.

But Wolfe’s blistering condemnation of medical staff peer review contained in the new report, Hospitals Drop the Ball on Physician Oversight (co-written by Alan Levine, both of Public Citizen’s Health Research Group) is timely and, I believe, largely correct.

The report focuses on the National Practitioner Data Bank (NPDB), established in 1986 to collect data about problem physicians, mostly to help credentials committees make informed decisions about medical staff privileging. The legislation that established the NPDB requires hospitals to submit a report whenever a physician is suspended from a medical staff for over 30 days for unprofessional behavior or incompetence. Although the public cannot access NPDB reports on individual physicians, healthcare organizations (mostly hospitals) ping the database about 4 million times per year. When it was inaugurated, the best estimates (including those of the AMA) were that the NPDB would receive 5,000-10,000 physician reports each year.

Not so much. Since its launch two decades ago, NPDB reports have averaged 650/year, and nearly half of US hospitals (2845 of 5823) have never reported a single physician! The most extreme case is that of South Dakota, where three-quarters of the hospitals have never reported a single case to the NPDB. I’m sure South Dakota has some wonderful doctors, but the idea that the state’s 56 hospitals have never had a physician who needed to be suspended for incompetence, substance abuse, sexual harassment, or disruptive behavior since the Reagan presidency is a bit of a stretch, don’t you think?

Public Citizen chronicles several cases of egregious behavior by physicians who dodged NPDB reports  – the cases either received no peer sanctions or were dealt with in ways designed to skirt the reporting requirements, such as – wink-wink – leaves-of-absence and 29-day suspensions. Most famously, a cardiologist and CT surgeon at Redding Medical Center in Northern California performed hundreds of unnecessary cardiac procedures but were not reported to the NPDB – largely because Redding’s medical staff and hospital were cowed by the physicians’ power and reluctant to kill two geese who laid many golden eggs. (Interestingly, the Joint Commission whiffed on this one too, a major reason why Congress removed its near monopoly on the hospital accreditation business last year.)

Levine and Wolfe recommend powerful medicine to fix the NPDB system, including much more vigorous legislative oversight, substantial fines to hospitals for failing to report, and linking NPDB reporting practices to accreditation standards and to Medicare’s Conditions of Participation.

A few years ago in our book Internal Bleeding, Kaveh Shojania and I described the limits of peer review; the Public Citizen report provides statistical confirmation of our observations. We wrote,

It is undeniable that hospitals do have a tendency to protect their own, sometimes at the expense of patients. Hospital “credentials committees,” which certify and periodically recertify individual doctors, are toothless tigers. Most committees rarely limit a provider’s privileges, even when there is stark evidence he presents a clear and present danger to patients. Instead, they assign a committee member to “have a chat” with the physician in question, perhaps gently suggesting he or she shouldn’t do a particular procedure anymore. They might even ask another physician, not on the committee but in a similar specialty, to “keep an eye on old Doug” and let them know if he continues to screw up, even if patients or other staff members don’t report it….

It is not that hospital credentials committees never take action. They do – removing a physician’s privileges at a hospital or recommending to the state board that a doctor’s license be suspended – when there is clear, repetitive evidence of gross negligence and incompetence. But when this happens – and it is really rare – it comes only after an orgy of soul-searching, handwringing, buck-passing, second-guessing and second chances that is painful, and sometimes embarrassing, to watch. In most cases, committee members just swallow hard and – unless the physician is under felony indictment or is so stewed that he can’t walk down a corridor without banging into both walls – the credentials are rubber-stamped.

Kaveh and I offered three reasons why medical staff self-policing is so wimpy. The first is the “fraternity of medicine” thing – no gang members like to “rat out their pals,” and in this regard, we’re no different from the Crips. The second is that credentials committee members are acutely aware of the amount of time and effort that it takes to become a practicing physician, which makes them reluctant to take away a doc’s livelihood.

A third reason, we wrote,

is simply that doctors aren’t very good organizational managers. Their people skills are usually confined to bedside chats and working with colleagues and support staff in task-oriented jobs; they aren’t particularly adept at managing conflicts and confrontations, so they avoid them. This is a pretty dumb reason to let an error-prone doctor continue to prowl the hospital wards, but because litigation… lurks behind any challenge to professional competence… many physicians are reluctant to go into that particular swamp unless the trail is awfully solid.

The fear of litigation is undoubtedly one of the major reasons why peer review doesn’t work. Although the statute establishing the NPBD provides immunity to physicians who perform good faith peer review, many hospitals and reviewers lack confidence in these protections. An American Hospital Association analysis of the NPDB concluded, “The specter of baseless, time-consuming and expensive litigation serves as a powerful disincentive to effective peer review.” If peer review is to be strengthened, these protections must be unambiguously robust.

Writing in his book Complications, Harvard surgeon and bestselling author Atul Gawande sees in the medical profession’s failure to perform aggressive peer review something understandable, even a tad noble. When it comes to disciplining a basically good but troubled doctor, “no one,” he says, “really has the heart for it.” Atul writes:

When a skilled, decent, ordinarily conscientious colleague, whom you’ve known and worked with for years, starts popping Percodans, or becomes preoccupied with personal problems, and neglects the proper care of patients, you want to help, not destroy the doctor’s career. There is no easy way to help, though. In private practice, there are no sabbaticals to offer, no leaves of absence, only disciplinary proceedings and public reports of misdeeds. As a consequence, when people try to help, they do it quietly, privately. Their intentions are good; the result usually isn’t.

There are still other reasons for the failure of peer review. When questions of clinical competency arise, there are often insufficient data to refute the inevitable arguments that “my patients are older and sicker.” When the issue is disruptive behavior, unless there has been documented scalpel throwing (by a surgeon with good aim), finding the bright line that separates the behavior of an aggressive, passionate, patient-advocate-of-a surgeon from the surgeon whose disruptive behavior creates a hostile work environment or places patients at risk can be elusive. Finally, peer review conducted by professional colleagues is fundamentally tricky – one the one hand, how could one’s practice be dispassionately reviewed by a golfing buddy? On the other, peer reviewers might well be competitors of the physician-in-question, with a financial stake in the outcome.

Is it any wonder that medical staffs kick this particular can down the road so often?

Layered on top of these traditional impediments is a new one: the paradigm shift introduced by the patient safety field. Remember, our patient safety mantra has been “no blame,” which is unlikely to be in the first verse of the Peer Review Fight Song. Haven’t we just finished convincing ourselves that most errors are due to dysfunctional systems and not bad apples? If that’s the case, who really needs peer review, anyway?

But this represents a fundamental misunderstanding of “no blame.” I struggled with this tension while writing Internal Bleeding, and went to The Source for guidance: Dr. Lucian Leape, the father of the patient safety movement. Lucian, I asked, how can we reconcile systems thinking with the necessity of standards and peer review? His answer was spot on:

There is no accountability. When we identify doctors who harm patients, we need to try to be compassionate and help them. But in the end, if they are a danger to patients, they shouldn’t be caring for them. A fundamental principle has to be the development and then the enforcement of procedures and standards. We can’t make real progress without them. When a doctor doesn’t follow them, something has to happen. Today, nothing does, and you have a vicious cycle in which people have no real incentive to follow the rules because they know there are no consequences if they don’t. So there are bad doctors and bad nurses, but the fact that we tolerate them is just another systems problem.

I’m proud to say that over the past five years, my hospital (UCSF Medical Center) has taken Leape’s challenge to heart, withdrawing clinical privileges (and filing accompanying NPDB reports) in several cases for behavior that, I’m quite confident, would have been tolerated a decade ago. This is progress. As Kissinger once said, “weakness is provocative.” As more hospitals take this tougher stance, I think we’ll see the boundaries of acceptable behavior shift everywhere. And patients will be safer for it.

A profession is group of individuals with special knowledge, who are granted privileges by society in deference to their expertise and in exchange for self-regulation. When thousands of hospitals can go 20 years without disciplining a single physician on their medical staff, our status as a profession is called into question.

In the end, peer review is about answering one deceptively simple question: Is it more important to protect problem physicians or vulnerable patients? If we can’t answer that question correctly, we should not be surprised when the Sid Wolfes of the world call us to task, nor when we find ourselves under an unpleasant media, legislative, and regulatory microscope. Professions don’t need that kind of outside scrutiny to do the right thing, but we just might.

Dr. Robert Wachter is widely regarded as a leading figure in the modern patient safety movement. Together with Dr. Lee Goldman, he coined the term “hospitalist” in an influential 1996 essay in The New England Journal of Medicine. His most recent book, Understanding Patient Safety, (McGraw-Hill, 2008) examines the factors that have contributed to what is often described as “an epidemic” facing American hospitals. His posts appear semi-regularly on THCB and on his own blog “Wachter’s World.”

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