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Join us for a conversation with Tracey O’Connell, a radiologist and physician coach, as we explore the hidden challenges within the medical profession. In this episode, we delve into the unsettling experience of facing a mandatory performance review, the strain it places on trust among colleagues, and the emotional turmoil it can cause. Tracey shares her insights on navigating workplace culture, the ethical considerations of performance improvement plans, and the mental health impacts on physicians. We also discuss the systemic issues that need reform and how advocacy can drive change.

Editor’s note: During the podcast recording, the NPDB was referred to as the National Physician Data Bank. The correct name is actually the National Practitioner Data Bank.

Tracey O’Connell is a radiologist and physician coach.

She discusses the KevinMD article, “The sham peer review: a hidden contributor to the doctor shortage.”

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Transcript

Kevin Pho: Hi, and welcome to the show. Subscribe at KevinMD.com/podcast, and get CME for this episode by clicking on the CME link in the show notes. Today we welcome back Tracey O’Connell. She’s a radiologist and physician coach. Today’s KevinMD article is “The sham peer review: a hidden contributor to the doctor shortage.” Tracey, welcome back to the show.

Tracey O’Connell: Thanks, Kevin. Good to see you.

Kevin Pho: So Tracey’s been on multiple times. Go to KevinMD.com/podcast to hear her story and prior episodes. But today let’s jump right into your most recent KevinMD article, “The sham peer review: a hidden contributor to the doctor shortage.” What’s this article about?

Tracey O’Connell: So this is the beginning of a series of articles I’m writing, in which in this particular case I take the reader through an abstraction, putting themselves in the position of showing up at work, waking up, going through your normal routine, getting a strange email saying that you’re required to attend some mandatory meeting that you know nothing about. And you run through your head all of the things that you could have done wrong, or curious who might have called the meeting, and anxiety builds.

And then you go to the meeting, and your peers are there saying that you are being subjected to something where you’re either seen as disruptive, or there’s been concerns about your productivity or your work ethics or your patient care. And very vague, or maybe taking a scenario that’s pretty ordinary or happens a lot but somehow suddenly feels like an aberration or something that is unusual that now you’re being cited for, and you’re going to be subjected to either a performance improvement plan or a chart review or something that seems sort of out of proportion to whatever they’re describing. That the actions in response to this sort of ordinary event is now being seen as a big deal.

And to keep in mind that peer review is part of something we all go through when we go to get privileges at a hospital, or take a new job, or, you know, periodically for every three years the Joint Commission comes through and needs to have certain i’s dotted and t’s crossed to be able to accredit an institution. And so there’s times where peer review kind of comes up, but most of the time people are focused on just getting the credential.

But when the focus becomes on you, I think one of the purposes of one of the articles is to really describe, how do you know if you’re in a sham peer review or a real peer review? And I think the basic gist is, you should feel safe in a peer review where you feel like the institution or people calling for it are really on your side, they want to help you, they want to see things through, they want to minimize damage. But anytime you begin to sense that something is awry, or you feel unsafe, it’s important to listen to that.

So the purpose of this article was to put the reader in that position. I think many people, and have heard, I know there have been some other folks interviewed with you and have written articles in KevinMD about personal experiences with sham peer review.

And I think when we read those anecdotes we think, wow, that sucks for that person. But I don’t think there’s really an awareness of how common it actually is, because people who are subjected to it often either have signed a non-disclosure agreement or have their own shame, humiliation about what happened, so don’t talk about it. And some articles cite that up to 10 percent of peer reviews can be sham peer reviews.

So the purpose of these articles is to raise awareness and kind of prepare physicians for how to protect themselves in ways that they may be completely oblivious to, because we often trust that once we’ve gone through all the trainings and all of the boards and things, that we’re safe. I mean, I know for me, I went into medicine, I can remember my parents telling me, oh, you know, go into medicine because you’ll always have a job, you’ll always be needed. And that felt like this assurance.

And now I think especially during the pandemic there were a lot of people who were dismissed and went through sham peer review, and it was such a chaotic time people just didn’t notice and went along, tried to keep a low profile.

Kevin Pho: Sure. So I definitely want to unpack that, especially the differences between a real peer review and a sham peer review. But before I do, in a lot of the cases when you talk to your colleagues or when you’re doing your coaching, it really is just an email out of the blue that the physician in most cases has no idea that this is coming.

Tracey O’Connell: That’s right. And actually, because I’m not only doing this as a coach, but about a year ago I became a member of Physician Just Equity, which is a nonprofit organization run by volunteer physicians, all of which have probably been through something that was emotionally significant, an emotional experience with something that happened in their work environment. And this organization was founded in 2020 by Pringl Miller, who is a surgeon.

And through this organization I’ve just been made aware of how this shows up, and how many people at all levels of training. There are folks in medical students who feel that they get an evaluation and then they can’t proceed to the next level or can’t sit for their boards. There are fellows who are close to the end of training, maybe six months out, and then get some weird thing coming to work, it’s fresh, it’s the new year, and suddenly there’s out of the blue this kind of thing that’s threatening their future. And all the way up to big players, multi-grant recipients who are high-level academics at preeminent institutions who have this happen to them.

And what’s scary is that, you know, we all purchase malpractice insurance to protect us from a patient thinking that we’ve harmed them, or protecting us from lawsuits. But there’s really no way to protect ourselves from our peers just deciding to shine a negative light on us and try to eliminate us or stop our careers or even end our careers.

Kevin Pho: Now for these sham peer reviews, before we get into the differences between how we can tell whether it’s legitimate or not, what are some of the motivations that medical institutions have for pursuing these sham reviews in the first place?

Tracey O’Connell: Such a good question. Because again, I think we all go into health care because ideally we are there to help patients, and you can see signs blasted all over hospitals and health care centers saying that it’s all about patient care. But there’s been sort of some corruption or abuse of power that happens more and more as hospitals and health care have corporatized. And I believe that it’s happening more now because those of us who have compassion fatigue and have stepped down or are doing other things now have left the people who are really focusing on the bottom line left behind.

So often it’s financial. So the motivations might be things like, quite often I would summarize, in general it’s people either feel threatened by you, either financially, or that you’re actually really good at what you do and someone doesn’t like feeling in competition with you. They feel threatened by you. This happens in high levels of leadership, where maybe someone comes in, is doing a fantastic job, being efficient, getting better patient reviews, getting more surgical time, whatever it is, that then makes someone else who thought, hey, I’m supposed to be getting that, or I have worked really hard for this and this young person is coming in and kind of usurping my position in the hierarchy.

And so, if you’re an outspoken woman, I would say that by far minorities, underrepresented groups, people of color, people in the LGBTQ community, or outspoken women, or people who are confident, tend to be targets of this. But I will say it can happen to anyone, because who leads it is usually someone who just, for whatever reason, feels that they have more power than the person they’re doing it to.

And if I get back to your original question, it happens because it can happen. And I think that the peer review system has been set up such that it protects and provides immunity to the people running the peer review, not the subject of the peer review.

So there’s a lot of legalese I could get into about the Health Care Quality Improvement Act, that was set up to protect those in peer review, so that people who didn’t want to be sued for being a part of peer review. It was initially set up by Congress to make sure that, there was a big case back in the 1980s where someone sued a hospital for a sham peer review type situation, and they won, and it went to the Supreme Court and they won. But then in response to that, people didn’t want hospitals and doctors to not feel safe reviewing their staff, and so they set up this kind of clause that you really can’t get around.

And it’s been around since the 80s, and it’s been abused, where it protects and provides immunity for the accuser rather than the person being accused. And there’s no checks and balances to determine that the person who made the accusation is any more capable, competent, or qualified than the person that’s being accused. Does that make sense?

Kevin Pho: Absolutely. So let’s say a physician gets one of those emails out of the blue for a meeting, right? What are some signs or red flags they should look out for to help them determine whether this is a sham peer review or something more legitimate?

Tracey O’Connell: I think again, like hearing by email, first of all, I think would be really alarming. Like, to not have someone just come up to you and say, hey, I want you to know that this is going on and we all think it’s ridiculous and we’re here to support you, we’re going to minimize it and we’re going to get this through as quickly as we can.

When you find yourself in isolation when you receive the news, and you don’t have anyone around you and you’re not even sure who called the meeting. You know, quite often private practice groups, and even though all this stuff was set up originally in like hospital administration type scenarios, it’s definitely being used in small groups, private practices, at any kind of level of medical practice or medical environment, because people have learned that physicians are quite compliant.

When you get accused, when you receive this email, right, all of us are sort of, there’s going to be an alarm that says, huh. And you’re going to try to figure it out, and then you’re going to default to, OK, I’m OK, it’s OK, I’m innocent. Although the back of your mind you’re thinking, oh my gosh, did that patient say something, when was the last time I actually was paying attention while I was listening, you know, to this, completing my charts. It’s easy to plant a seed of doubt because all of us are so overwhelmed.

So I think the biggest clues that you’re in a sham is when something comes out of the blue, you’re alone when you receive it, it doesn’t make sense to you, and there’s maybe some time before the meeting. And then you go to the meeting and there’s a lot of people, maybe even some of the people that you think you trust, who are there. And it’s this surreal sense of what’s happening, like you’re in a movie or something, and you’re not even sure what they’re referring to. There’s not like, oh, that incident, that time where I dropped the instrument in the OR and then I just kept using it or something, you know.

There’s something that makes, if you’re suspicious, trust your instincts. Because I think many of us think the best defense is to be low-key, compliant, and just hope it blows over. And that’s the place where I want folks to intervene on their own behalf, because we have this blind trust because we think we’ve earned it and our status will protect us.

But the biggest thing is, we want to turn to a peer or somebody, a friend, even someone that’s been our colleague for years. And in these scenarios it can be really scary to talk to or trust anyone in the situation, because of whistleblower retaliation. Anybody who sees, if I help you it could hurt me, is going to be reluctant to. Truly, unless you feel like the person helping you is willing to go down with you, then it’s better to seek out an attorney right away.

Kevin Pho: So that was my next question. So you mentioned one of the strategies that these institutions have during their sham peer review process is to isolate that particular clinician. And my question to you was, they should at that time seek out a trusted friend or colleague to bring into that meeting with them, or even seek legal representation. Is that what I’m hearing?

Tracey O’Connell: Yes. And a real tip off to a sham peer review is if you mention the word lawyer and they say, oh, this is no big deal, don’t bring a lawyer in, or, you know, we’re going to keep this local. That is almost like the clue to say to get a lawyer.

I mean, the ways that you can think of to protect yourself are to, again, trust your intuition, and also bring a recorder, or bring your iPhone in and press record, so that you have something to check the record. And you don’t need to tell everyone you’re recording it, right? We all have our phones and you can lay it out. But you want to make copies of all emails, all texts, all correspondences.

It sounds weird and it makes you think, why is this person so paranoid? You don’t want to go to that place, you want to go to the place of safety and trust and belief. And if you’re not feeling that from the people around you, like genuinely, then you really have to trust that you’re on your own, and you need to get somebody outside of your situation who can see it from a different perspective, either a friend who’s outside of medicine altogether, to give you some perspective.

And to obviously avoid being, you know, this label of disruptive is something that’s often used to put someone in a sham peer review. And if they use the word disruptive, that’s a huge clue, because it’s a term that’s used that’s super vague. I mean, that word could mean anything. It could mean that you walk down the hall in your socks. You know, it’s not specific, and yet it’s pejorative, so it makes people on the defense. And those are some of the clues, of like, this word disruptive can be used to just throw somebody under the bus. And hospital administrators don’t need to know the details, they just know that you were disruptive.

And the only thing that’s really required is this due process, to take someone through these steps, the meeting, the performance improvement plan, meeting again, seeing that things didn’t improve, you’re still disruptive, and now, because you’re paranoid, now you are making mistakes, right?

And it’s kind of a sinking ship. Anytime you start to feel or fear that something is awry, you have to immediately get a life preserver on, which has to do with getting some perspective, somebody who’s outside the situation, that you know is going to be there, have your back, and know what’s happening, so that you don’t get penalized and damaged long term.

Kevin Pho: So you’ve heard I’m sure many of these stories through your colleagues or through your coaching. Tell us some potential outcomes that you’ve heard other physicians have after going through a sham peer review process.

Tracey O’Connell: Well, the biggest and saddest is if you get reported to the NPDB, which is the National Practitioner Data Bank. And this was set up right around the same time as the Health Care Quality Improvement Act back in the 80s, to try to keep people who were, like, if you’re a priest and you’ve been having misconduct in one community, they can just send you to another community, you can just continue practicing.

So in order to keep physicians who have been accused of wrongdoing or unethical behavior from just crossing state lines and going and practicing somewhere else, they set up this data bank, which is really just like probably a room with a bunch of computers that keeps track of who’s had a malpractice accusation, or who’s had a malpractice payment, who has had something filed against them.

And so if you get reported to this, or even someone threatens to report you to the National Practitioner Data Bank, it’s a big deal, because if you get reported there it’s almost impossible to get a job. And the only person who can take your report off of the National Practitioner Data Bank is the person who reported you to it.

So what’s really a big deal and a big warning sign for anyone that’s going through this type of sham peer review, is that you can not resign from your job while you’re under review. You need to have it all tied up, that if you decide to leave, or if you decide you’re going to go quietly, or if someone tries to bargain with you, you want to make sure that there are clauses and protections in there that you will not be reported to the National Practitioner Data Bank. Because once you are, I mean, I’ve seen folks who no longer can practice in the United States have practiced in United Arab Emirates or have practiced in Africa, places where people are just glad that you’re certified and they don’t pay attention to the NPDB.

The other things are, you know, I think all of us think that human resources at a hospital, that the hospital will have someplace to protect me. But honestly, the hospital human resources is always there to protect the hospital, they’re not there to protect you.

So you might think that, and even like the medical executive committee at your hospital or the head of your department, you may think that you can report something malicious that you think is going on in your division, but most often they will be aghast and jump on the bandwagon of people who think you’ve done something wrong.

And it’s really important that you read the medical staff bylaws anywhere you’re employed. And no one likes to do that, because they don’t make any sense. And maybe you’ll read them and have them not make sense. But when you take on a job it’s really important to read those, or to have a lawyer read them, to really know. Because some of these things are in the fine print, this thing about the Health Care Quality Improvement Act, about if you sue the hospital or if you say that you’re being wrongly accused, there’s immunity, meaning that unless you win you have to pay for all of the expenses that are accrued by you trying to defend.

And so people listening may feel like this sounds like an overdramatized version of reality, but I’m telling you, it is terrifying, because there’s no malpractice insurance to protect us from this. You could be the head of everything, and someone can make an accusation against you, one of your peers, and there’s nothing separating you and them. Maybe they’re even lower in the hierarchy than you are. And it’s almost like once you’re in the crosshairs, then anything you do makes you look guilty, if you will.

And so this is where it’s so important that you act according to kind of all about self-protection, rather than trusting that everything’s going to be OK if you cooperate.

The real problem, in what you said, one of some scenarios, if you’re in training. And this is not unusual, unfortunately, medical students or residents where someone has just decided that you don’t fit in or they don’t want you to succeed, whether it’s financial or whether it’s just personality wise. Little things can happen, like somehow your board scores go missing and you have to take the exam again, or you keep not passing and no one will help you to pass.

Or you’re again like a senior resident, maybe you’re in this last year of a six-year-long training process, and you’ve been getting great reviews all along, and then suddenly it’s like your last semester and you’re looking to the future, maybe you even have a job set up, and suddenly there’s question of whether you will be allowed to go on, and people don’t think you’re competent or safe, but you’ve never heard this before. And then maybe you go through the proceedings and try to be cooperative, you don’t know what’s going on but you’re just going along with it, letting them review your charts, hoping nothing is found. But then they could just pass you through, but then when you go to sit for their boards, they just tell some crony that they have on the board exam to not pass this person.

Kevin Pho: We’re talking to Tracey O’Connell. She’s a radiologist and physician coach. We’re talking about “The sham peer review: a hidden contributor to the doctor shortage.” Tracey, as always, we’ll end with some of your take-home messages that you want to leave with the KevinMD audience.

Tracey O’Connell: If you think there’s something going on, if you think you’re in a sham peer review, you’re probably right. Go ahead and get a lawyer sooner rather than later. We’ve been conditioned to believe that lawyers are out to get us in malpractice, but in this case the lawyer is exactly what you need.

The other thing is to read about, there’s a couple of institutions and resources that can be really helpful. One, and this is some that I was not aware of, is the Association of American Physicians and Surgeons. And it is the only national medical association that’s helping physicians against sham peer review. And they’re nonpartisan, it’s been around since the 1940s, it’s made up of 60 plus volunteers from all different specialties, and they’re dedicated to preserving the sanctity of the physician patient relationship. They actually provide free legal consultation services, and there’s a number I can list here.

There’s also a woman that you had on your program and wrote an article, who wrote The Medical Matrix, which is a great book to sort of summarize a lot of things I’ve hit on today.

This thing too about not hearing this and just freaking out and just hoping it doesn’t happen to you, to just really be mindful of how you’re showing up, and kind of inventorying your own values, making sure you’re able to show up at work safely as who you are. And you know, obviously know your enemies, but know how to protect yourself. Read those bylaws, make sure you understand them, make sure that the medical executive committee at your hospital doesn’t make changes to those bylaws without the entire committee there to approve them. Make sure that you know that the people who are in charge, are sitting on these committees, are people that you have experienced trust with in your own life, because otherwise these people can often sit on these committees so that they have this kind of power.

And I want to just say, if it happens to you, you’re not alone. One of the things I love about Physician Just Equity, and again that’s physicianjustequity.org, is we are a peer-run organization that provides peer support, listening, having your story validated so you don’t think you’re crazy, so that you’re not gaslighted. And also to give, it’s not really legal advice, but people’s lived experiences, what they’ve learned, can be huge, to not feel alone and to feel safe in whatever decisions you make forward.

Kevin Pho: Tracey, thank you so much for sharing your perspective and insight, and thanks again for coming on the show.

Tracey O’Connell: Thanks for having me.