Doctor Fired for Reporting Medical Malpractice
An interesting New Mexico Supreme Court case issued earlier this year addressed the issue of the confidentiality of the medical malpractice peer review process. The case arose in the context of a wrongful discharge claim filed by a doctor against a hospital for discharging him for his adverse opinion on the existence of medical negligence.
The case is discussed generally below to illustrate the wider implications of the peer review process.
Peer Review Always Secretive & Often Biased
ADMIT NO HARM! The case of Yedidag v. Roswell Clinic Corp. is more interesting from a patient point of view for the fact that it illustrates several worrisome issues for patients and patient advocates:
1) the peer review process is completely hidden from patients who have been or may be harmed in the future,
2) rather than accept the fact that the doctors within the facility committed medical malpractice, there are some hospitals that will not only deny the suggestions by injured patients but destroy their own for veering from the company line, and
3)peer review has resulted in underreporting of medical error no doubt putting innocent patients and families at risks.
The oath seems to be not “Do No Harm” but “Admit No Harm”.
Peer Review Supposedly to Ensure Patient SafetyPeer review is a sham process under the guise of patient safety. In fact, it is just the opposite with unintended consequence of an underreporting of medical error. Peer review is a process whereby a panel of doctors review a medical file where harm has occurred to a patient. It is stated that the peer review is for patient safety. However, this case illustrates that many times, the peer review process is directed toward anything but patient safety.
One obligation of a hospital, and one issue related to peer review is a hospital’s evaluation of a medical provider’s competence and professionalism for purposes of hospital admission privileges. Again, this is unfortunately not necessarily the case: 1) the hospital has a vested interest in the ability of medical providers to bring patients to their facilities, 2) the hospital has a vested interest in avoiding any finding of negligence since this might then give rise to claims for failure to properly vet providers prior to allowing them hospital privileges. After all, a hospital is ultimately responsible for the activity within its facility.
Risks to Peer Reviewers Results in Underreporting
Peer review risks has led to underreporting of medical errors. Doctors within a facility must be free to report negligence without fear of repercussion. This is one reason for the confidentiality of the process. The court pointed out that “The most serious obstacle to effective peer review is the potential fear felt by the reviewer that participation in an adverse recommendation will lead to a lawsuit against him or her personally” by the doctor found to be negligent.
The court also points out the risks to reviewers “professional livelihood from two sources: their peers and their employers.” The court cites a study finding that “Efforts to obtain reliable information on medical error have also been hindered by the problem of underreporting, primarily due to fear of malpractice litigation and employer retaliations.”
Interestingly, the reviewers are often as in this case from the same community, which seriously jeopardizes referral networks. This same phenomenon holds true to testifying experts in a medical malpractice case. In those cases, it is exceedingly rare that would testify against another physician in the same state. In fact, most attorneys do not even try to find one. Instead they seek medical experts from other states who face no such repercussions.
This seems like a very easy fix to the peer review problem. The lack of a fix is clearly intentional on the part of the medical community. After all, the current system works just fine for purposes of burying even confidential evidence of negligence.
Due to all these risks to the reviewers, the process is confidential. This makes perfect sense for protecting the reviewer but none at all for purposes of protecting patients.
The Reviewer was Allowed to Bring his Claim – the Public Gained NothingPeer review geared toward protecting doctors on both ends not patients, The peer reviewed is protected from wrongful employment termination. Patients gain nothing. In fact, due to the underreporting of errors related to peer review, the public has been harmed.
The entire peer review process is geared toward protection of the doctors involved. It has zero to do with patient safety. The reviewer is protected from his or her employer and the offending doctor. The negligent doctor is protected from public knowledge is his or her negligence. This is so even where there are repeated offenses.
Peer Review is a Sham with Easy Fix: Get Out of State ReviewersMuch like medical malpractice claims, truly objective peer review can come only from out of state medical experts not subject to risks from employers or colleagues. The entire peer review process is in many cases just a sham exercise. Patients will never know of their doctor’s history of negligence if left to this process. The entire process is in fact predicated on the protection of doctors not patients.
The protection of the reviewers could be handled very easily by the use of out of state medical experts. This obviously would not be attractive to hospitals or negligent doctors. The protection of the negligent doctors is perfectly reasonable right up to the point where medical providers hand-picked by their hospital determine the conduct was negligent.
Only Recourse for Patients is Generally Legal Action
Instead, the only recourse for patients is to file a medical malpractice claim. Even then, they will never see the peer review findings. However, they will at least have the benefit of purely objective out of state medical experts which they will never have through peer review, confidential or not.
If you or a loved one has suffered serious injuries or wrongful death as a result of medical malpractice, you should seek the guidance of an experienced medical malpractice attorney. The Albuquerque law firm of Collins & Collins, P.C. can be reached at (505) 242-5958.