Sham peer review: Why is there no malpractice insurance for this?

It’s estimated that up to 10 percent of all peer reviews are “shams,” thus, it’s worth a few minutes of education so you’re not left grappling if you suspect you might be the target of one.

As physicians, we purchase malpractice insurance (or it’s provided by an employer) to protect us from patients who file suits claiming negligence or harmful treatment decisions. The tacit understanding is that we’ve worked hard to get where we are, mistakes happen, and occasionally, no matter what we do, a patient feels wronged and will take legal action. But what if a colleague, hospital administrator, or board examiner makes a claim against us that is bogus or unsubstantiated? No insurance policy exists to protect physicians from others they work with subjecting them to a sham peer review (SPR), tarnishing their reputation, or even ending their career. SPRs target good physicians for non-medical reasons.

“Unfortunately, in sham peer review, the truth and the facts do not matter because the outcome is predetermined and the process is rigged,” writes Lawrence Huntoon, MD, PhD, in the winter issue of the Journal of American Physicians and Surgeons.

So why do such reviews occur? Some reasons include retaliation against a physician who was a “whistleblower” regarding workplace practices or treatment of another staff member; professional envy; discrimination based on race, gender, or sexual orientation; turf battles; power struggles; or simply “I don’t like them,” “They don’t fit in here.” If it sounds like SPRs can develop from any interpersonal difference, that’s because it’s true.

Peer review is mandated by The Joint Commission (formerly known as JCAHO, the Joint Commission on Accreditation for Healthcare Organizations). Their stated purpose is to protect patients and improve the quality of patient care. While the Joint Commission has standard criteria for health care center accreditation and a box to check for “has completed a peer review process,” the manner in which reviews are conducted varies widely across institutions. If you’ve ever applied for hospital privileges, you’ve had to submit names of peers to validate your performance. You choose people who know you well and will vouch for your integrity.

SPRs, as we know them today, developed over decades. In the 1980s, a surgeon in Oregon sued a hospital for being subjected to a bad-faith peer review. The case worked its way to the Supreme Court, and the physician won $2.2 million. As a result, doctors didn’t want to participate in peer review activities because they didn’t want to get caught up in lawsuits; malpractice lawsuits were at an all-time high, and Congress decided to take action.

In 1986, the Healthcare Quality Improvement Act (HCQIA) was passed to protect hospitals and physicians participating in peer reviews from being sued. Its “loser pays” clause provides immunity for anyone in the administration or hospital from liability, and forces anyone who legally contests the results of a peer review and loses to cover litigation fees for all involved. What was branded as a means of improving health care delivery and eliminating red tape instead opened the doors to malicious SPRs.

Around the same time, the U.S. Department of Health and Human Services created the National Practitioner Data Bank (NPDB). The NPDB retains records of lawsuits, malpractice payments, and any adverse action reports filed against health care professionals. The intention was to prevent those involved in the scandal from leaving their jobs and moving to start fresh. It effectively became a blacklist: if one is reported, it can be difficult or even impossible to practice medicine in the U.S. again.

As much as the NPDB sought to weed out bad apples, its creation set the stage for the excommunication of good physicians via SPRs. The data bank’s regulations make it ripe for those in power to manipulate “undesirable” fellow practitioners. For one, records can only be accessed by hospitals, state medical boards, and professional societies. Even more dangerous is the requirement that the only person who can remove a reported physician from the NPDB is the one who filed the report.

Because HCQIA gives immunity to hospitals, administrators, and peers participating in peer review, abuse of the review process has led to physicians being subjected to bad-faith peer reviews simply by being labeled as “disruptive.” Likewise, the criteria for being labeled “disruptive” remain arbitrary and ill-defined. Unlike civil law, which presumes innocence until proven guilty, HCQIA presumes the accused physician is guilty until proven innocent by shifting the burden of proof from accuser to accused. No system of checks or balances exists to prove that the person making an accusation is any more reputable or competent than the accused, only that they feel empowered to make a claim. In essence, as long as a medical center provides procedural due process and states some minimal basis of the claim in providing “quality health care,” they are immune from liability, regardless of the claim’s legitimacy.

Maybe you’re thinking of that vitriolic physician in your practice. The one who treats the staff terribly, communicates awfully, and seems to suffer no consequences for their actions? I’ve known hospitals that tried for years to get rid of a truly incompetent physician with a terrible track record and were unsuccessful in revoking their privileges. Likewise, I’ve seen excellent practitioners valued and respected by many of their colleagues, who were dismissed for entirely nondescript reasons. These occurrences defy logic and reek of cronyism and systemic inequality.

It may be the influence of politicians who have allowed for “fake news” or “feelings matter more than facts” to become a standard way of dismissing truth. Perhaps those who entered medicine because they felt a calling have compassion fatigue or have left medicine altogether, leaving only those who must be right at all costs. Such narcissists view others’ successes as threats, and with unchecked power, they can take action against such threats. All it takes to mark competent practitioners for life is a phony claim about an “unlikable” personality framed as a preservation of “quality health care.”

Tracey O’Connell is an educator and coach who fosters positive self-worth, psychological safety, emotional intelligence, and shame resilience among physicians, teens, and LGBTQ+ individuals. She is a certified facilitator of expressive writing programs and Brené Brown’s research. Her change of direction came after many years of feeling “not enough” as a person, physician, parent, or partner. Tracey has found that expressive writing allows us to access our true selves, helps us gain self-trust and self-compassion, and ultimately leads to a more authentic and wholehearted way of belonging in the world. She is also an advocate for universal, affordable, fair, safe, and equitable medical access, education, and practice. Since 1992, she has lived in Durham/Chapel Hill, NC, where she began her medical career in radiology and musculoskeletal imaging, training at UNC-Chapel Hill and Duke University.