Documenting the Peer Review Process
The key to preventing litigation over peer review proceedings is careful documentation of a well-organized, exemplary process. It is not enough for an individual member to act properly. Every member of the committee must be above reproach because it is the committee that acts and will be sued. The hospital bylaws should require each committee member to disclose all personal and business dealings with members of the medical staff who might come before the committee. This information can be protected from general disclosure, but it should be available to the other committee members. The committee members should demand that the hospital or other institution indemnify them against any losses related to the peer review activities.
Defensible peer review depends on creating a clear record of the alleged deviations from standard practice. The record also should demonstrate that none of the reviewers was an economic competitor of the physician being reviewed. If it is impossible to assemble a review panel without financial conflicts, the committee should employ an outside reviewer or consulting service. Given the reality of medical business practices, it would seem necessary to use outside reviewers in all but the largest hospitals. Even in these facilities, subspecialty care will require outside review.
This record must be specific as to the facts of each incident, how these facts deviate from accepted practice, and the actual or potential harm resulting from this deviation from accepted standards. If there is no demonstrable harm or potential harm from the deviation, the deviation does not affect patient care and is not a proper basis for an adverse peer review action. The record should be objective and should be free of personal attacks on the physician in question. Copies of patient records should be attached and annotated as necessary to establish the validity of the facts in question. All complaints by patients and other medical care providers should be investigated and incorporated into the record.
The record should demonstrate that the physician was warned about the deviations from standard practice and was given an opportunity to correct these deviations. These warnings should be communicated in writing, with the physician asked to respond in writing. If the nature of the deviation was such as to necessitate immediate suspension of medical staff privileges, this should be documented. The arrangements to care for the suspended physician’s patients should be discussed, as should patients’ reaction to their physician’s suspension. Emergency suspensions are merited only when there has been little delay between the institution’s learning of the problem and its taking action against the physician. It is impossible to defend an emergency action taken after months of discussion.