Sham Peer Review Issue Goes Mainstream. WaPo: VA Physicians Fear Sham Peer Review

The paper's words this time, not mine:

From the Washington Post, "VA docs concerned about retaliation", June 12, 2014, http://www.washingtonpost.com/blogs/federal-eye/wp/2014/06/12/va-docs-concerned-about-retaliation/:

Retaliation from management is a real concern among Department of Veteran Affairs (VA)  employees ...  James Martin, a physician and a representative of the American Federation of Government Employees National VA Council, told the gathering  that sham peer reviews are a problem in the department. In a later interview, he elaborated, saying, “orchestration of facts” related to issues involving contact with patients [in other words, fabricating stories about substandard patient treatment by physicians, cherry-picking minor incidents and exaggerating them, etc. - ed.] is an issue at some facilities.” Sham reviews, he explained, can be used when management wants to replace or punish a doctor.

Retaliation against employee whistleblowers was again the subject of discussion during Thursday’s hearing of the House Veterans Affairs Committee.

Further amplifying the point:

... During the hearing, Republicans Jeff Miller (Fla.) and Dan Benishek (Mich.), both of whom spoke to the NAVAPD conference, asked Robert L. Jesse, the department’s acting under secretary for health, about reports that VA employees were instructed not to talk with members of Congress.

Benishek, a physician and former VA employee, said agency doctors have told him they are “reprimanded and have this retribution if they try to change the system.”

Read the whole article at the link above.

Then, read more on sham peer review at the American Association of Physicians and Surgeons (AAPS) resource site at http://www.aapsonline.org/index.php/article/sham_peer_review_resources_physicians/.

A typical scenario is described like this:

A conscientious doctor reports a quality care problem or patient safety problem to the hospital administration. This might be anything from an anesthesiologist falling asleep during surgery to a malfunctioning piece of equipment which places patients at risk for harm.

Instead of fixing the problem, some hospitals misuse the peer review process to attack and silence the physician whistleblower.

The hospital administration and unethical physician collaborators then search for some pretext upon which to attack the physician whistleblower. This might involve the hospital bringing trumped up charges against the physician or it might involve bringing totally false and/or fabricated charges against the physician. The truth and the facts do not matter in a sham peer review in the hospital since the hospital controls the entire process.

The hospital then goes through the motions of providing a hearing to the accused physician, which they call “fair,” yet the outcome of the hearing is predetermined. The physician’s due process rights are often utterly trampled. At the conclusion of the process, the physician’s privileges to practice at the hospital are terminated. The physician is reported to the National Practitioner Data Bank, and the physician’s career is essentially over. Once a physician receives a negative report in the National Practitioner Data Bank, it is unlikely that physician will ever work in any hospital again anywhere in the nation.

Sham peer view affects all physicians, not just public-sector ones.

It does not help patients when physicians, their supposed advocates, are cowering in fear over destruction of their careers for being "whistleblowers" (for which a better term might be "corporate integrity agents").

Finally, I think this fear helps explain the relatively low levels of complaints about bad health IT, on which hospital executives invest billions of dollars and their reputations.

-- SS

CA Supreme Court upholds "whistleblower" protection for Modesto physician - and on replacing the abuser-favoring connotations of "whistleblower" with "Corporate Integrity Advocate"

"Whistleblower" is a term commonly used to refer to insiders in an organization who do not "go along to get along" or look the other way with regard to corruption and malfeasance.

The connotation, of course, is that these individuals are "snitches" and "non-team players", in other words, the "bad guys."  They are then punished for their good deeds.

(More on the term "whistleblower" below.)

Here's one "whistleblower" who punished back:

California Supreme Court upholds whistleblower protection for Modesto physician

By Ken Carlson
February 20, 2014
http://www.modbee.com/2014/02/20/3201156/california-supreme-court-upholds.html

The California Supreme Court ruled Thursday that a Modesto physician who challenged the termination of his hospital privileges has whistleblower protections.

Dr. Mark Fahlen, a kidney specialist, filed a March 2011 whistleblower lawsuit in Stanislaus County Superior Court after Sacramento-based Sutter Health canceled his privileges to care for patients at Memorial Medical Center.

Fahlen’s lawsuit claims that Sutter Central Valley Hospitals and Steve Mitchell, then the chief operating officer of Memorial, persuaded the Sutter Gould medical group to fire him and terminated his hospital privileges because of his complaints about insubordination and substandard care by hospital nurses.

At least they didn't threaten to plaster his complaints to his forehead as occurred in Ohio (http://hcrenewal.blogspot.com/2013/07/hows-this-for-patient-rights-affinity.html).

His attorney said the court decision guarantees that physicians have the same protections as hospital employees if they report problems that threaten to harm patients.

That "guarantees protections" and "report problems that threaten to harm patients" have to appear in the same sentence at all is symptomatic of the most severe form of patient-be-damned dysfunction in this industry.

It’s “the biggest victory for patient rights since California’s health care whistleblower law was adopted in 1999,” said attorney Stephen Schear of Oakland. “In a hospital environment dominated by corporate giants too often more focused on protecting their marketing and brand name than patient health, today’s ruling will finally unshackle doctors from fear of retribution so they can protect patients.”

Ditto my prior comment.

In a case closely watched by the hospital industry, the American Medical Association supported Fahlen with a “friend of the court” brief. The California Hospital Association and groups such as Kaiser Foundation Hospitals, Scripps Health and Dignity Health filed briefs on behalf of the defendants.

That is rather indicative of the mindsets of those who filed briefs on behalf of the defendants.

... After he was given staff privileges at Memorial in 2004, Fahlen complained to administrators that nurses refused or failed to follow his patient care instructions. According to facts in the case, Fahlen had six clashes with nurses about patient care from August 2007 to April 2008. He told supervisors and administrators that nurses were insubordinate and that their care was substandard.

One complaint was regarding a nurse’s refusal to transfer a patient to intensive care, delaying for five hours the appropriate level of care for the patient, the doctor said.

What if the patient had died, I ask?

Mitchell, the chief operating officer, blamed Fahlen for his conflicts with nursing staff and contacted Sutter Gould’s medical director about Fahlen’s conduct. Sutter Gould cut ties with Fahlen in May 2008, causing his malpractice insurance to be canceled. Fahlen decided to start his own practice and arranged a meeting with Mitchell to talk about his hospital privileges.

Mitchell wrote in an email to Memorial’s chief executive officer that Fahlen “does not get it,” meaning that he was going to lose his privileges. The CEO replied that it “looks like we need to have the medical staff take some action on his MedQuals!!! (or medical qualifications). Soon!”

According to the lawsuit, Mitchell told Fahlen at the meeting that he should resign and leave town, or the hospital would report him to the Medical Board of California. Fahlen charged that a subsequent in-house investigation, and an executive committee decision not to renew his privileges, occurred in retaliation for his complaints about patient care.

In other words, the doctor was a "disruptive physician" - a bad schoolboy who needed to be spanked - which was, of course, more important to the executives than maimed or dead patients.

Fahlen asked for a hearing, resulting in an October 2009 to May 2010 review by a six-physician committee at Memorial. The panel concluded that the evidence did not show he was incompetent or that his behavior had endangered patients. [But] Memorial’s board of trustees overruled the panel in early 2011.  [It's not hard to imagine that few if any on that board were themselves medical professionals - ed.]

It's more likely in my view that this physician was ultra-competent.

Sutter attorneys argued that the doctor first needed to exhaust other legal remedies before bringing the whistleblower lawsuit. The Supreme Court dismissed a previous expectation that doctors exhaust other remedies before filing suit with claims of retaliation. Such conditions would “seriously undermine the Legislature’s purpose to afford a whistleblower on a hospital medical staff the right to sue,” the Supreme Court’s opinion said.

Next, a typical circular argument:

Attorney Lowell Brown, who handles physician disciplinary cases for hospitals, said Thursday’s ruling will “change the rules of the game,” though additional court decisions will be needed to clarify issues. He predicted doctors will be reluctant to serve on hospital panels that review the competency or behavior of physicians.

“The doctor can claim the action is being taken because he or she is whistleblowing,” Brown said. “No one ever produces evidence that a sham peer review has taken place. What we will see is sham whistleblower complaints about peer reviews.”

Since sham peer review (see more at http://hcrenewal.blogspot.com/2009/10/sham-peer-review-could-this-bad-faith.html) is done secretly and behind closed doors, with protections, it's pretty hard to produce "evidence" of the type required in court.

... Fahlen said the ruling means that “doctors no longer have to choose between speaking out for their patients or continuing with their careers.”

Again, this is an absolutely perverse choice foisted upon clinicians by corporatized, financialized medicine and its leadership.

------------

More on the term "whistleblower" itself.

My attitude about that term is clear - the people who use it are attempting an ad hominem attack in one word.  It is a bad term, with bad connotations, and does not actually describe what the individual is attempting to accomplish.

AHIMA's  Kim Baldwin Stried-Reich has a similar view, and a suggestion for replacement of that term with a more descriptive and non-abusable term:

"Changing Perception of ‘Whistleblowers’"

From  http://journal.ahima.org/2014/03/01/hipaa-whistleblower-protections-promote-information-governance/

... According to Kim Baldwin Stried-Reich, the former Speaker of the AHIMA House of Delegates, the new amendment to the HITECH-HIPAA Omnibus rule demonstrates both the increasing importance and value HIM professionals have today in ensuring both integrity and compliance with rules, regulations, and laws governing access and disclosure of health information within their organizations. Baldwin Stried-Reich is a privacy and compliance officer with the Lake County Physicians Association, in Waukegan, IL.

She notes that while the new provision provides specific protections against disclosures reported to an oversight agency by whistleblowers and workforce members who are victims of a crime, she’s not so sure this new rule will encourage individuals, such as HIM professionals to speak-up and speak-out when or if they see evidence of systematic and ongoing non-compliance with federal mandates.

One reason for this is the widespread use of the word “whistleblower,” which often carries negative connotations. She prefers the term “corporate integrity advocate.”

"Corporate Integrity Advocate" clearly and unequivocally describes what the individuals - including those who write for blogs such as this one - are trying to accomplish.

It is also a term that is rather hard for malfeasance-doers to use as ad hominem..

“Perhaps if Health and Human Services had utilized another term, such as ‘corporate integrity advocate’ more individuals would understand what the intent of this new law is and that it is meant as an avenue individuals can choose to pursue if their professional integrity and ethics are not in alignment with the corporation’s any longer,” Baldwin Stried-Reich says.

"Not in alignment with the lack of the corporation's integrity and ethics" is a more direct, and likely more accurate, way to put it.

A relevant example of this is evident in the settlement that Shasta Regional Medical Center (SRMC) entered into with the Department of Health and Human Services (HHS) following an investigation concerning the breach of PHI after senior-level executives intentionally disclosed protected information to the media on at least three separate occasions.

The Shasta case demonstrates how and why corporate integrity advocates or whistleblowers are needed to facilitate change within their organizations when it is warranted, Baldwin Stried-Reich explains.

That example is but the tip of the iceberg.  There are many posts on this blog alone dealing with the issues of whistleblowers Corporate Integrity Advocates (see the query link http://hcrenewal.blogspot.com/search/label/whistle-blowers).

The term "whistleblower" needs to be retired ASAP.

-- SS

Words that Work: Singing Only Positive - And Often Unsubstantiated - EHR Praise As "Advised" At The University Of Arizona Health Network

When clinicians are told to promote a technology in no uncertain terms, that puts a chilling effect on critical thinking and discourse.  In effect, when under orders to only speak positively about a hospital or its technology, saying anything bad could very likely get clinicians labeled as 'troublemakers' or 'disruptive clinicians.'  Sometimes - in a sadly real example at Affinity Health - it may even get threats of having complaints plastered to one's forehead (see http://hcrenewal.blogspot.com/2013/07/hows-this-for-patient-rights-affinity.html), a threat answered to by a judge.

The 'disruptive' label usually does not have a good effect on one's evaluations and job (or, for doctors, even career) longevity.  See, for example, the resources at http://www.aapsonline.org/index.php/article/sham_peer_review_resources_physicians/ on sham peer review.

At University of Arizona Health Network (UAHN), clinicians are being told to promote the EPIC EHR.

The campaign is under the aegis of executives who know, should know, or should have made it their business to know the mayhem caused at other medical centers by EPIC and other major clinical IT systems (see for example query links http://hcrenewal.blogspot.com/search/label/EPIC and http://hcrenewal.blogspot.com/search/label/healthcare%20IT%20difficulties).

Here's what clinicians are bring told in the Oct. 3, 2013 "Weekly update for UAHN employees":

Words that Work 

Talking positively to our patients about our new Electronic Health Record system is important! Here are some key words and phrases you can use to emphasize the many benefits of the new system:

• Electronic health record (not ‘Epic’ or ‘EHR’)
• One comprehensive record
• Coordinated care
• Improves patient safety & quality
• Convenient, easy patient portal 
• Private and secure

Click here for more words and behaviors to inspire confidence in our patients (and ourselves) as we transition to this new system.

The link to "more words" produced this PDF:

"Words that Work" - If I worked there, I would be concerned that that using "words that don't work" about a project that probably cost hundreds of millions of dollars would likely injure my career.  Click to enlarge.

This is shameless.  Many of these claims are unsubstantiated or in significant doubt in the literature.

First:

They left out issues such as these:

• The software is tested and validated for safety by nobody, including traditional medical device safety testers.

• No postmarket surveillance for problems, either.

• Transparency about problems that can cause patient harm is severely impeded by systematic impediments to information flow (as per IOM's 2012 study of health IT safety at http://hcrenewal.blogspot.com/2012/03/doctors-and-ehrs-reframing-modernists-v.html, FDA via their leaked Internal Memo on HIT safety as at http://hcrenewal.blogspot.com/2010/08/smoking-gun-internal-fda-memorandum-of.html, the Joint Commission in their Sentinel Events Alert on Health IT as at http://hcrenewal.blogspot.com/2008/12/joint-commission-sentinel-events-alert.html, and others.)

• Problems known are only the "tip of the iceberg" (FDA, ECRI Institute), as at http://hcrenewal.blogspot.com/2010/02/fda-on-health-it-adverse-consequences.html and http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html 

(Mar. 2014 addendum: add to that list the revelations of med mal insurer CRICO, that EHR technology has contributed to a substantial fraction of the medical malpractice suits in Massachusetts: http://hcrenewal.blogspot.com/2014/02/patient-safety-quality-healthcare.html)

Of the claims they do make:

• Efficient - see aforementioned links as well as "Common Examples of Healthcare IT Difficulties" at http://cci.drexel.edu/faculty/ssilverstein/cases/

• Convenient - as above.  According to whom?  Compared to what?  Pen and paper?

• Improves patient safety and quality - see IOM report post at http://hcrenewal.blogspot.com/2011/11/iom-report-on-health-it-safety-nix-fda.html .  We as a nation are only now studying safety of this technology, and the results are not looking entirely convincing, e.g. ECRI Deep Dive Study of health IT safety at http://hcrenewal.blogspot.com/2013/02/peering-underneath-icebergs-water-level.html.  171 health IT mishaps in 36 hospitals, voluntarily reported over 9 weeks, with 8 reported injuries and 3 reported possible deaths is not what I would call something that "improves patient safety and quality" without qualifications.

• The Cadillac of its kind - according to whom?

• Patients at hospitals using this system love it -  Do most patients even know what it, or any EHR, looks like?  Have they provided informed consent to its use?

• Exciting - clinician surveys such as by physicians at http://hcrenewal.blogspot.com/2010/01/honest-physician-survey-on-ehrs.html and by nurses at http://hcrenewal.blogspot.com/2013/07/candid-nurse-opinions-on-ehrs-at.html shed doubt on that assertion. 

(Addendum: also see what nurses think about these systems at "Another 'Survey' on EHRs - Affinity Medical Center (Ohio) Nurses Warn That Serious Patient Complications Only a Matter of Time in Open Letter", http://hcrenewal.blogspot.com/2013/11/another-survey-on-ehrs-affinity-medical.html)

• The best thing for our patients - again, according to whom?

• Sophisticated new system - "New"?  Not so much, just new for U. Arizona Health.  "Sophisticated", as if that's a virtue?  Too much "sophistication" is in part what causes clinician stress and burnout, raising risk; see this summary of a new, not-free JAMIA article "Electronic medical records and physician stress in primary care: results from the MEMO Study", J Am Med Inform Assoc amiajnl-2013-001875 at http://www.beckershospitalreview.com/healthcare-information-technology/the-relationship-between-emrs-and-physician-stress.html.   From that summary:

... Compared with physicians at clinics with low-function EMRs, physicians at clinics with moderate-function EMRs experienced significantly more stress and had a higher rate of burnout. Additionally, physicians at clinics with moderate- or high-function EMRs felt less satisfied with their current position overall.

and:

... Results also showed a significant relationship between time pressure and physician stress in the cohort with high-function EMRs, and only in this cohort, suggesting physicians at these clinics may be particularly pressured for time during patient encounters in the face of a large number of EMR functions. "This 'made sense' to us in thinking about the possibility that those in the high-use group had more to do in the EMR" [say the authors].

• Smartest program out there - "Smartest" meaning what, exactly?  According to whom?  Who performed the comparison?

• Streamlined - compared to what?

• Thank you for your patience - even if the effects on clinicians gets you or your loved ones maimed or killed?

• Safe and secure network - really?  No break ins, ever, considering multiple breach stories like those at http://hcrenewal.blogspot.com/search/label/medical%20record%20privacy?

• Keeping you informed is our priority - informed of what?

• Specially trained staff - like these:  http://hcrenewal.blogspot.com/2010/08/epics-outrageous-recommendations-on.html?

and this:

• Take Responsibility - I ask, should clinicians "take responsibility" for IT-related disruptions that impair care such as "use error" (as opposed to user error), i.e., what the National Institute of Standards and Technology has called operator error due to poor usability and other features of bad health IT?  (See "NIST on the EHR Mission Hostile User Experience" at http://hcrenewal.blogspot.com/2011/10/nist-on-ehr-mission-hostile-user.html.)  What about "glitches" and bugs that corrupt or lose data?  Should clinicians also 'take responsibility' for those?  (See for example the posts on the wild things that happen when IT malpractice leads to clinical mayhem at http://hcrenewal.blogspot.com/search/label/glitch.)

It appears to me that this vendor is using its client hospitals' management to enforce an "acceptable point of view" clinicians must proffer to patients about EHRs (which they must call "health" records), despite well-known contradictory findings.  This is, in effect, forced marketing of a device.

Trying that for a drug or a conventional medical device (e.g., a particular stent) would be on its face unethical and likely illegal.

Finally, critical thinking is what keeps patients alive and safe.  Marketing measures like this (some might call it "propaganda"), espousing and enforcing 'EHR exceptionalism', in my opinion, damage critical thinking and expression, and are thus unacceptable to push on clinicians and on patients.

I add that requiring clinicians to promote deceptive propaganda the clinicians themselves know is untrue, from painful experience, is degrading, intimidating and destroys morale.  It is axiomatic that clinicians (or anyone) operating under such conditions cannot perform at their best.

Thus the management geniuses who came up with these instructions (if not outright vendor-ghostwritten as at the Aug. 2012 "Health IT Vendor EPIC Caught Red-Handed: Ghostwriting And Using Customers as Stealth Lobbyists", http://www.tinyurl.com/epic-stealth) are by their actions increasing risk of patient harm.

The nurses' unions at at http://hcrenewal.blogspot.com/2013/07/rns-say-sutters-new-electronic-system.html have it right, in my view:  complain about the disruptions this technology causes, and complain loudly, if at the very least to make sure the problems are out in the open.

-- SS

Note: also see the followup Nov. 2013 post "We’ve resolved 6,036 issues and have 3,517 open issues: extolling EPIC EHR virtues at University of Arizona Health System" at http://hcrenewal.blogspot.com/2013/11/weve-resolved-6036-issues-and-have-3517.html

Needed: A Webcast on Disruptive and Criminal Hospital Executives

I received this, unsolicited, via email:

Webcast:  Managing Disruptive Docs in a New Era of Hospital-Physician Relations

If you haven't already purchased this live Webcast, don't miss out! Left unchecked, disruptive physicians do more than just create a negative work environment; they endanger patient care and can lead to million-dollar lawsuits and bad publicity.  Our top experts will show you early intervention techniques and a range of effective resources that can help you reduce behavioral problems, retain star physicians, create a healthier workplace and save millions in potential lawsuits.

The agenda includes:

    Defining and identifying causes of disruptive behavior
    Economic consequences of disruptive behavior
    Overcoming disruptive physician problems

This program will be guided by your questions, so register now and ask away!

Your instructors:

Alan Rosenstein, MD, MBA
Medical Director of Physician Wellness Services

David Danielson, JD, CPA
Senior Vice President, Clinical Risk Management, Sanford Health

Scott Hurst
Former Director of Physician Alignment and Recruitment, CHRISTUS Spohn Health System

Managing Disruptive Docs in a New Era of Hospital-Physician Relations is designed to help CEOs, COOs, CMOs, group practice administrators, HR leaders, and physicians learn strategies and tactics to prevent, reduce, and limit the severity of disruptive physician incidents.

"Disruptive physician" is a vague term subject to enormous abuse, leading to sham peer review among other totalitarian tactics.   It reminds me of the old Soviet Union's politics.

You have been deemed a Disruptive Physician, Comrade.  You will be given a fair trial, then shot

In particular, this label can be used to suppress clinician concerns about care quality in an era of cost cutting and care manipulation through electronic workflow control systems (e.g., EHR's CPOE, CDS etc.)

The potential of being labelled as "disruptive" may be one reason why physician outcry against the very low quality of healthcare IT systems and dangers posed by them is relatively uncommon.

Patients - you - ultimately suffer when your physicians fear being your outspoken advocates.

As the many stories of healthcare executive malfeasance and profiteering at the expense of patients on this blog indicate, what is really needed for true healthcare reform are webcasts on:

MANAGING DISRUPTIVE AND CRIMINAL HOSPITAL EXECUTIVES IN AN ERA OF RAMPANT CORPORATIZATION OF MEDICINE.

-- SS

Addendum:  here are additional resources on the “Disruptive Physician”:

Abuse of the “Disruptive Physician” Clause, http://www.jpands.org/vol9no3/huntoon.pdf

The Insulting Physician “Code of Conduct”, http://www.jpands.org/vol13no1/huntoon.pdf

In the latter article, Lawrence Huntoon MD PhD, and expert on abuses of this label, notes:

... The typical physician code of conduct is initiated by a hospital administration. Its wording is curiously similar from one hospital to the next, suggesting that a template is being circulated.

... The physician code of conduct is intentionally insulting, demeaning, and degrading to physicians, and reduces physicians to being treated like juvenile delinquents at a reform school. It assumes that all physicians, like juvenile delinquents, need to be subjected to a long list of prohibited behaviors because, in the hospital administration’s view, physicians are predisposed to such things as theft, destruction of property, and physical and sexual assault. Conspicuous by its absence is any mention of “disruptive” or “abusive” hospital administrators, or any similar code of conduct applicable to a hospital administration.

Dr. Huntoon then goes on to make a recommendation, a "hospital administration’s code of conduct":

... The term “disruptive hospital administrator” and/or “abusive hospital administrator” should be incorporated into the hospital administration’s code of conduct and should be defined as anyone in the hospital administration who, in the view of the medical staff (as determined by majority vote), interferes with the ability of physicians to provide safe and high-quality care to patients in the hospital.

His detailed criteria for “disruptive hospital administrator” in the latter article are worth reading in their entirety.

-- SS