Richard B. Willner, president of The Center for Peer Review Justice is not shocked to see such a sharp uptick in “Physician Brownout’ sham peer review cases. Physician Brownout is a term he coined to describe a special kind of peer review or professional retaliation which involves liability shifting for nursing error or any of a number of events where a hospitals has liability for its agents.
“After 11 years and hundreds of cases, you get to be a bit of an epidemiologist on sham peer review. And I have broken it into 3 major patterns of shamming: There is the straightforward economic or competitive peer sham which everyone knows about.
Next is the disruptive physician sham which has become the epidemic gravy train for health care lawyers churning hundreds of thousands of physician dollars on mostly nonsense . While the disruptive physician is the fastest growing type, the most pernicious type is certainly “physician brownout.” It is a flagrant display of corporate hubris and cynicism and the corporations doing are really sick and probably just as dangerous. It has taken sham peer review to the next level. It is a public health disaster and it goes on right under the nose of the National Practitioners Databank with the sanction of HRSA and HHS..”
“Physician brownout” is corporate liability shifting to independent doctors. It is designed by the hospital attorney with involvement from the CEO to keep the public and most of all, the plaintiff’s attorneys in the dark on hospital error by using all of the shadowy techniques of sham peer review. I chose the name from the California brownouts of the 1990’s during the Enron scandal. It is essentially Enron accounting for hospital error. California is also the state where I saw my first case which fortunately we were successful at averting.
Physician Brownout is precisely that. When the hospital goes way over the top to restrict or censure a surgeon and the medical facts indicate hospital wrongdoing this is not only a sham peer review it is outright fraud on the public health. The public loses in 2 ways first an ethical and good doctor’s career is destroyed for the negligent acts of others and secondly the hospital gets away with not properly accounting for its own negligence. Hospitals get ranked on sentinel events and other patient safety snafus they are supposed to do proper root cause analyses but a physician brownout makes it all go away and keeps the hospital looking good. The plaintiffs lawyers pursue the scapegoated doctor with a vengeance. I have seen as many as 8 lawsuits filed in succession on a surgeon who had never been sued before. 3 or 4 is normal. Because medical records can be withheld in a peer review and there is no requirement for sworn testimony or rules of evidence, the records can be tampered with by the hospital to mislead plaintiffs away from the real cause of the patient’s damages.
Hospitals that sham independent doctors have not learned that people who live in glass houses should not throw stones. I predict that physician brownout is an epidemic that will finally end up destroying them because here the public health implications from sham peer review are crystal clear .
The attorneys and executives that do it are callous and ethically indifferent. They feign detachment while they allow their designated medical staff or outside reviewer to get carried away by the sanctimony of ritual physician sacrifice. It is really twisted to witness. The panel stays well away from any implication that the hospital may have liability. They have not learned the lesson that people who live in glass houses should not throw stones.
Much of sham peer review has been directed preferentially against surgeons. In disruptive cases I think it is because sometimes they take strong ethical stances which are perceived as defiance in the face of corporate directives. Non surgeons can drive much of the sham process and are generally more passive personality types. Also, the myth of the dangerous surgeon has become a very powerful tool to obfuscate the real issues in a sham review. In a brownout case, every plaintiff’s lawyer wants to take a surgeon down while they may completely miss the issue of proximate cause and hospital liability.
Shamming surgeons is on the rise. Most of my referrals come from other surgeons. I have helped work on their cases to resolve them in the best way possible. I will work with their attorney. I will work with a medical board but sometimes this becomes a really dirty business and you uncover very real corruption which is difficult to overcome. These cases are just so unreasonable.
Sham peer review started with economic competition between doctors when the health care pie began to shrink under managed care and fee for service medicine began to evaporate. The Health Lawyers association, mostly driven by hospital lawyers and organized medicine, was there to train doctors exactly how to get rid of doctors for economic reasons but in the name of protecting the public health.
Typically, the doctor’s career is completely destroyed in the process when his name is entered into the National Practitioner’s Data Bank. Some physicians actually killed themselves over losing the right to practice medicine but according to the rules of the NPDB the entries survive their death.
Organized medicine persisted in proclaiming the virtues of economic credentialing and for the longest time the AMA denied that sham peer review existed when they knew the NPDB was riddled with it.
The disruptive physician would be a joke if it were not so real. This is where hospital committees are trained by outside groups to paint doctors as troublemakers or potential threats to quality when they speak to issues of hospital management and patient care. This has now become a large portion of my referrals and quite often these cases can be worked through but the doctor is left feeling helpless to address any issue in the hospital when an organization attempts to shift liability to an independent doctor for the mistakes of nurses, anesthesiologists and other hospital related incidents.
Under Obamacare and the environment of stepped up enforcement we essentially have something similar to the Patriot Act and guess who the terrorists will be, independent doctors. Organized medicine and large hospitals have a way of shielding themselves from liability that is not quite legitimate or in the interest of the public health.
NPDB is corporate blacklist riddled with cases of sham peer review and now Physician Brownout. It has been so since its inception when it was hijacked by corporate interests to immediately create a shield for corporate doctors particularly in the settlement of malpractice cases and a presumption against independent doctors.
Richard B. Willner is the President of The Center for Peer Review Justice.