Listen and followApple PodcastsSpotifyYouTubeMore apps · Browse all episodes
Join us for this episode with guest Farid Gharagozloo, a cardiothoracic surgeon, as we discuss the unintended consequences of the Health Care Quality Improvement Act of 1986 (HCQIA). While the act was designed to protect public health and safety by enhancing the peer review process and providing a national repository for reported information regarding medical malpractice payments and adverse actions involving physicians, it has resulted in the deprivation of civil and constitutional rights for physicians. The National Practitioner Data Bank (NPDB) reporting provision violates the Constitution’s fifth, eighth, ninth, and tenth amendments. There is a dire need for legal action and a corresponding insurance product to reclaim the constitutional rights for all physicians. Join us as we shed light on these egregious violations of physicians’ civil and constitutional rights.
Farid Gharagozloo is a cardiothoracic surgeon, professor of surgery, and surgeon-in-chief at the Institute For Advanced Thoracic Surgery, University of Central Florida College of Medicine, and UCF Lake Nona Hospital.
He shares his story and discusses the KevinMD article, “Unintended consequences of Health Care Quality Improvement Act: a violation of physicians’ civil and constitutional rights.”
The Podcast by KevinMD is brought to you by the Nuance Dragon Ambient eXperience.
With so many demands on their time, physicians today report record levels of burnout. Burnout is caused by many factors, one of which is clinical documentation. Studies indicate physicians spend two hours documenting care for every hour spent with patients.
At Nuance, we are committed to helping physicians do what you love – care for patients – and spend less time on clinical documentation. The Nuance Dragon Ambient eXperience, or DAX for short, is an AI-powered, ambient clinical intelligence solution that automatically captures patient encounters securely and accurately at the point of care. Physicians who use DAX have reported a 50 percent decrease in documentation time and a 70 percent reduction in feelings of burnout, and 83 percent of patients say their physician is more personable and conversational.
Rediscover the joy of medicine with clinical documentation that writes itself, all within the EHR.
VISIT SPONSOR → https://nuance.com/daxinaction
SUBSCRIBE TO THE PODCAST → https://kevinmd.com/podcast
RECOMMENDED BY KEVINMD → https://kevinmd.com/recommended
GET CME FOR THIS EPISODE → https://earnc.me/qluFyT
Powered by CMEfy.
Transcript
Kevin Pho: Hi and welcome to the show. Subscribe at KevinMD.com/podcast and get CME for this episode by clicking the CME link in the show notes. Today on the show we have Farid Gharagozloo. He is a cardiothoracic surgeon, and he’s the co-author of the KevinMD article “Unintended consequences of Health Care Quality Improvement Act: a violation of physicians’ civil and constitutional rights.” Farid, welcome to the show.
Farid Gharagozloo: Thank you for having me. It’s a pleasure.
Kevin Pho: So we’ll get into the article a little bit, but first off, just briefly share your story and journey to where you are today.
Farid Gharagozloo: My pleasure. So I’m a CT surgeon, mostly specializing in esophageal and thoracic surgery. I am presently at the University of Central Florida and Lake Nona Medical Center, which is our university hospital. I went to medical school at Hopkins, trained at the Mayo Clinic, and I’ve been practicing for about 30 years at different academic centers.
Real physician voices, twice a week
Free, and one click to unsubscribe.
Kevin Pho: All right. So in your 30-year career as a cardiothoracic surgeon, tell me some of the biggest advances that you’ve seen in the field.
Farid Gharagozloo: Well, actually, that’s a great question, because I have tried to kind of go along with the advances in what we do. Early on in my career, it was video surgery that was sort of behind general surgeons entering the thoracic world back in the ’90s. Then in the early 2000s, my colleagues and I in Washington, when I was at George Washington University Medical Center, were the first thoracic group in the U.S. to take on robotics, and that’s what I specialize in. In fact, I am the senior editor of the textbook of robotic surgery.
I think that robotics, frankly, has revolutionized surgery, especially in the chest. We are now thinking about doing surgery in the chest by going through the abdomen and through the diaphragm, which is amazing. And so I tell my residents that someday the Nobel committee will recognize the robot, the surgical robot, as a major advance in medicine, and I hope they do.
Kevin Pho: And as you know, there are a lot of challenges facing pretty much every specialty of medicine today. Now, as it relates specifically to cardiothoracic surgery, tell me some of the challenges facing the field in the coming years.
Farid Gharagozloo: Well, the challenge, frankly, is common to all our colleagues. It’s the fact that the landscape is changing. We went into medicine for various reasons, and those reasons don’t seem to be that important in the mind of the public, the government, and so forth and so on. I think that we all struggle with that. In CT surgery especially, the surgeries are complicated, the risks are high, and it’s a major issue for us, dealing with the present environment in medicine.
And then I think that becoming sort of employees of large organizations, for most of us who used to be in private practice and so forth, has become a major challenge, especially in CT surgery. Because I think that the largest group of cardiac surgeons especially are in private practice, but they work for organizations like hospital organizations.
Kevin Pho: So despite all these challenges that a lot of physicians are facing, what keeps you going in cardiothoracic surgery? What makes you come in the next day and keeps you going as a physician?
Farid Gharagozloo: Honestly, I think it’s the same reason for most of us, or maybe all of us: the fact that we love what we do. This is a passion. We selected this profession not because of financial reasons, not because of ego, etc. This is the thing. It’s interesting, I’ll tell you. When I was applying to Johns Hopkins, back a million years ago, the interviewer asked me, “So you want to be a physician to help people?” And frankly, I said, “No, that is part of the reason, but the main reason is the fact that I love what I do, and if I love what I do, I can help people better.” In fact, I think that’s what got me into medical school. So I have kept going with that idea all these years.
Kevin Pho: All right. So let’s talk about your KevinMD article that you co-wrote, titled “Unintended consequences of Health Care Quality Improvement Act: a violation of physicians’ civil and constitutional rights.” Now, before talking about the article, to get everyone on the same page, tell us: What is the Health Care Quality Improvement Act?
Farid Gharagozloo: So I think that until a few months ago, I was like so many of our colleagues. I had no idea what this was. I had never heard of it. And you know, the amazing thing is, and I’m ashamed to say it, I’ve been sitting on all kinds of committees and peer reviews and so forth, and I had no idea about this law.
And it’s important to know why it became interesting to me. A colleague of mine from 20 years ago, when I was in D.C., called me one day and asked for a reference for a new job. When I called the chairman, the chairman was very cold, and it turned out, long story short, that they were not able to offer this good surgeon that I knew for so long a position, because he had lost his privileges at another institution in D.C. As I inquired, it turned out that there were a lot of politics, a lot of this and that. It was obviously not an issue of competence and not an issue of ability, because I knew this person. I had worked next to them and so forth. And here it was, this guy was basically dead in the water, and the question was, how can this be? This is unbelievable.
And then when I looked into this, there is a law that was passed in 1986, in an atmosphere where physicians were suing other physicians who were sitting in these peer review groups and so forth. So the Congress, in trying to help, came up with this law, which is called HCQIA now, as an acronym. HCQIA basically has two parts. One was to protect peer reviewers from lawsuits, which sounds like a very good idea. And the second one was that if there were issues that came up in these peer review meetings or proceedings, they would then be put into what’s called the National Practitioner Data Bank. This was to track these things. It wasn’t meant to be sort of a repository of criminal activity or anything like that.
But the amazing thing to me was that even though this law was passed with the best of intentions, the world changed. I mean, you were just asking me what has changed. Well, between ’86 and now, you might as well go from night to day. And so things have changed, and this law has become the Achilles’ heel of every single physician. I get shivers thinking about this, because we are so exposed. And the most amazing thing is that, just like me, most of our colleagues are asleep at the wheel. They have no idea what is going on until they get entangled with these problems, and then, of course, it’s too late.
Kevin Pho: So you discovered this law and took an interest in it. Tell us some of the consequences that physicians face today because of this law.
Farid Gharagozloo: Very good. So as I further looked into this, and I give a lot of credit to my co-authors, Doctors Poston and Gruessner. Dr. Poston was my chief at the University of Arizona. Dr. Gruessner was our chairman. The three of us sort of took an interest in the academic aspects of this, to understand it. And it turns out that the law has morphed, or the use of the law has morphed, so that the protection now is to the hospital systems.
So what happens is, when a physician becomes a quote-unquote bad actor for whatever reason, what will happen is the medical staff of a hospital, who are now selected. I mean, it’s amazing, not so much in academics, but in the large hospital organizations, frankly, it turns out that these people are selected. I mean, the whole voting process is a bit of a sham. So the whole medical staff governance is under the control of the hospital. Then, for a physician who has an issue, the issue is never told to them, so there is really no due process. It’s all done under a cloak of secrecy. A group of people are selected. Many times these people are not even in the same specialty. Sometimes they’re from outside the institution and don’t know the people.
And then basically the peer review system, again, not all the time, but at certain times, and really it takes one time being bad for the whole thing to be bad, is used against doctors, to accuse them and basically to adjudicate it under a cloak. And then, frankly, the organizations pick the judge, the jury, and everything, and then the physician really has no recourse anymore, because this law says that this whole process, which was originally intended to protect the peer reviewers, now protects the whole system. And this one physician I’m talking about, I found out he has taken his case all the way to the federal court system, and even then it’s a difficult problem, as you said. So in this process, basically, if one is accused, it’s really hard to prove innocence.
The second thing is, frankly, people have talked about this quote-unquote sham peer review. And I’ll be honest, until recently I thought that, like most doctors, I wanted to stay away from these kinds of things. You know, I mean, basically we just think that this is almost staying away from bad people and bad actors. And I think that’s shameful. I am ashamed of that.
The second thing is, when a physician is found to be guilty of whatever, if the privileges are taken away, it’s reported to the Data Bank. If they quit their privileges under investigation, that’s still reported. It’s almost the same thing. And then that Data Bank report is used by employers, by insurance companies, etc., to give privileges to this physician, and basically they won’t. They will not get past the first step if such a Data Bank report is there.
The point of my article wasn’t to talk about sham peer review. That’s a different discussion. But really, as we looked at the Constitution, the reporting is done by an agent of the federal government, the Department of Health and Human Services, but their reporting is done by private organizations, and the government does not check the validity of these reports. So the bottom line is, you can say whatever you want as an organization, and there are no checks or balances in our democracy for something like that. And so I’ll stop there, but if you look at it, there are a number of points in the Constitution that are violated, in my opinion and in many attorneys’ opinions.
Kevin Pho: Now tell us, what are common reasons why a physician would undergo peer review?
Farid Gharagozloo: Well, I used to think that it was basically that there would be a poor patient outcome, or some sort of a safety issue with a patient, or a physician who has privileges in that hospital would have some grievance of some kind against another physician. That is what we’ve been used to, and I think that is very good. It’s important to point out that the peer review system is a pillar of our world of medicine. We check each other, we correct each other, etc., and that’s the way it should be.
However, it turns out that that is an uncommon reason these days. The most common reason is basically violation of various bylaws that are really specific to hospitals, that have to do with behavior, that have to do with politics, that have to do with all kinds of non-patient-safety, non-patient-care issues.
Kevin Pho: Now, what are examples of some behavior issues that would trigger a peer review, or some examples of politics that would trigger a peer review?
Farid Gharagozloo: Well, I mean, actually, if one looks at the court cases, it’s all over the place, that these political issues come about where a physician is just too much of a troublemaker for the business interests of the organization. And then this is a good way to get rid of them without having to go through the court system, because under, again, the cloak of secrecy and confidentiality, the hospital is totally protected. The physician has no recourse. So that’s one thing.
The second is that every hospital, and we looked at these again, these larger organizations, they have codes of conduct now. So basically, if a physician loses his temper, or whatever accusation occurs, and you know, it’s very easy to accuse people. I mean, you can accuse, as long as there’s due process and someone can defend themselves, but without the second piece, accusations basically turn into sentences. And that’s what happens. The code of conduct seems to be used on physicians to control behavior, really in kind of a backwards way, frankly, but that seems to be a very common mechanism for quote-unquote peer review and so forth and so on.
And the problem is that the law, as you read it, did talk about the concept of due process, but this doesn’t exist here, because, for example, the physicians cannot ask for discovery to understand what’s going on. They cannot be represented by counsel until the last step. And one of the problems, which is really important, is that physicians don’t have the financial resources to even get an attorney. This is thousands of dollars. So basically, most physicians just walk away and then hold their head in shame.
The issue is, if you look at the malpractice coverage that we carry, only about $5,000 is allocated for such defense, which would be used up in a couple of hours. So basically, there is no insurance, and that’s really an important point, I think, for our colleagues to understand. What is needed is to understand that the same way we carry malpractice for medical reasons, there has to be insurance for this type of thing. Because without a doubt, as I have delved into this problem, if one has appropriate representation and you’re not just walking in blind and uncovered, these proceedings would not go as far as they go. And I think the point is, most physicians don’t have representation because they can’t afford it. So that’s an important thing for us as a community to understand, that we need to somehow come up with an insurance product that we can use in these situations.
Kevin Pho: So you mentioned in your article that the reporting provision of the HCQIA violates various constitutional amendments. Talk about some of the attorneys who listen to your arguments. What do they think?
Farid Gharagozloo: Well, the attorneys totally understand this, and much more than we do, because obviously it’s become like an industry. There’s health care law and all these things. And so, frankly, it is difficult to get most lawyers to change the law, because they’re living off of this law, so to speak. But the ones who are more academic, and actually we’ve published some articles in journals with these attorneys, they would point to various provisions in the Constitution.
The first premise, and this is the key point, is that this is a violation of the law by the federal government. Again, it’s inadvertent. They’re not doing it on purpose. The bottom line is, the First Amendment. I got educated on the fact that in the First Amendment, there’s this concept of viewpoint discrimination. What that basically means is that the First Amendment protects the fact that the federal government should view everything the same way. They can’t pick and choose. And since Medicare and CMS are involved in everything we do these days, they dictate how hospitals should bill, how everybody should act, etc. They have to apply the same level of scrutiny to everything in medicine, and this is one area where they basically put the blinders on, and they do not scrutinize these peer review activities in hospitals because of this law that is archaic. And that is the First Amendment violation, and it’s a huge issue. I mean, CMS can tell a hospital not to discriminate because of sex, because of X, Y, and Z, but they don’t do that for this, and that, of course, is a major constitutional issue.
The second issue is, I think it’s the Fifth Amendment, the due process. Obviously, there is no due process in this situation at all, and so that is a major violation. Again, it wouldn’t be if the hospital was a private actor. But because the government takes what they say and puts it out there as the voice of the government, under the HHS department, it obviously now becomes a constitutional violation of due process. The government should ideally be looking into every one of these as allegations, as opposed to done deals, and investigating. And I think if you investigate, then the real bad actors would definitely be found out, and the ones who are not would also be found out.
The next issue, of course, is the fact that when such a report is made, this ends a physician’s career. I mean, I get a cold sweat when I think of this. It’s amazing. You worked all these years, and then one report will stop you from getting hospital privileges, which means, for most of the physicians who work in hospitals, obviously that’s the end of it. And that is cruel and unusual punishment. I mean, it’s amazing. So if you commit a traffic violation, all of a sudden you’re going to the electric chair. You know, that’s just not in the Constitution.
And then the final things are the Ninth and the Tenth Amendments, which have to do with states’ rights. We are all licensed under state rules, and so obviously, I mean, a New Hampshire license is different than a Florida license. Because the state has the right to let me practice and gives me a license, and it’s called the supremacy clause of this Constitution, the federal government does not have the right to take that away unless the state takes it away. But the fascinating thing, as I’ve looked into this, is that even if the state board finds a physician not guilty of this, the report stays, and it makes no difference. Which is amazing, because the federal government’s stance is, “This is a report made by the hospital, not by us.” So it’ll stay even if the state board disagrees. So the state board is totally impotent in this situation, either positively or negatively. And then the Tenth Amendment is the same thing. It basically has to do with states’ rights and federal law.
So really, if one delves into the Constitution, you can see that our colleagues need to wake up. They need to understand that this is really an existential issue. And not only does the law have to change to keep up with the times, but in the meantime, we definitely need some sort of legal protection and proceedings to protect us.
Kevin Pho: So if a physician is about to undergo a hospital peer review, would your strongest recommendation be that they hire representation before going in?
Farid Gharagozloo: Absolutely, absolutely, without a doubt. And the unfortunate thing is that until it’s at the last steps, they will not let them. And then the second thing is, you know, these things can go on a long time. So I mean, I have heard of people spending $600,000, $700,000, $800,000 on legal representation. I certainly can’t afford it. I don’t know too many doctors who can, just like we couldn’t afford a malpractice lawsuit if we had to pay for the attorney, right? So I really think that step one is some changes to the insurance protection. Because I can tell you that if one has insurance, and if the hospital organizations understand that the doctor is not going to run out of money, the whole game changes.
Kevin Pho: And my final question for Farid: Tell us some of your take-home messages that you want to leave with the KevinMD audience.
Farid Gharagozloo: Well, I hope that whoever has heard us will delve into this, understand it, and take it seriously. Again, I am ashamed of the fact that I feel like I, you know, I’m originally, my family came from Iran. And in a country like Iran, when bad things occur, everybody kind of looks away, and unfortunately, that propagates the bad things and even empowers them. I think we need to stop doing that in this situation, in this country, or in our world of medicine, because we have a tendency to think that it’s only the other guy’s problem. But I think it’s a problem that affects all of us.
Kevin Pho: Farid, thank you so much for sharing your time and insight, and thanks again for being on the show.
Farid Gharagozloo: My pleasure. Thanks for having me.
Listen and followApple PodcastsSpotifyYouTubeMore apps · Browse all episodes
