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12/28/2017    Richard B. Willner, DPM

Due Process Rights and Peer Review

Medical peer review is the process by which a
committee of physicians investigates the medical
care rendered by a colleague in order to
determine whether accepted standards of care have
been met. The professional or personal conduct of
a physician may also be investigated. If the
committee finds that the physician departed from
accepted standards, it may recommend limiting or
terminating the physician’s privileges at that
institution. If the physician’s privileges are
restricted for more than 30 days, federal law
requires the peer review committee to report that
fact to the National Practitioner Data Bank.

There is no federal statute that requires peer
review committees to observe due process, which
the Supreme Court has defined as (1) giving
written notice of the actions contemplated, (2)
convening a hearing, (3) allowing both sides to
present evidence at the hearing, and (4) having
an independent adjudicator.

Prior to the Health Care Quality Improvement Act
of 1986 (HCQIA), the effects of an adverse peer
review finding were restricted to the hospital
involved. Because the HCQIA mandates the
reporting of disciplinary actions of peer review
committees to the National Practitioner Data
Bank, such a report could harm a physician’s
career throughout the nation.

Medical peer review is usually based on the
screening of medical records, which places
physicians with poor record-keeping skills at a
disadvantage, and ignores the fact that medical
records are often a poor indicator of the quality
of care. Additionally, there is no requirement
that the physician be given notice and an
opportunity to be heard, and there is no
requirement that members of the peer review
committee be unbiased.

The HCQIA recommends that the physician should
get notice of the allegations, time to prepare
for a hearing, a list of witnesses, the right to
legal counsel, and an impartial fact finder.
However, the act concludes “A professional review
body’s failure to meet the conditions described
in this subsection shall not, in itself,
constitute failure to meet the standards of this
act).” This failure of the HCQIA to require due
process calls into question the fundamental
fairness of the medical peer review system.

The reason that due process should be a part of
any fact-finding endeavor was stated by Justice
Goldberg in Silver v. New York Stock Exchange:
‘Experience teaches…that the affording of
procedural safeguards, which by their nature
serve to illuminate the underlying facts, in
itself often operates to prevent erroneous
decisions on the merits from occurring .’

The purpose of requiring due process is to ensure
that the actions taken are not arbitrary,
capricious, or unreasonable. Where there is no
due process, the system invites abuse.
Peer review in its current form fails to protect
an investigated physician from committee members
having an economic or personal bias.

Economic bias occurs when a committee member has
a financial interest in the outcome. If the
challenged physician is a partner or associate,
any error that he may have made is likely to be
considered to have been unavoidable. On the other
hand, peer review has already been used to force
a competing physician out of practice. Such
economic bias denies due process.

The United States Supreme Court struck down a
decision from Ohio’s municipal court system in
which the judge was partly paid from the fines he
assessed. The Court found that the system gave an
incentive to rule one way rather than the other.
Personal bias is inevitable when coworkers judge
each other. Some people are very likable, and
others illuminate the room by their absence.
Federal law prohibits a federal judge from
hearing cases in which his impartiality might
reasonably be questioned or in which he has a
financial interest. The same standards should
apply to member of a peer review committee. The
potential for abuse when these suggested
procedures are not followed would indicate the
need for mandatory due process.

Due process, which is designed to limit these
abuses, is not required by the Constitution of
the United States unless there is government
action that affects a liberty or property right.
The case of PAUL v DAVIS illustrates the legal
meaning of property rights as applied to
employment. The police labeled the plaintiff as a
shoplifter and advised local businesses to watch
him carefully. The plaintiff sued, claiming that
the government was injuring his reputation
without due process. The Supreme Court ruled
against the plaintiff, but stated that should
there be an effect on employment, then such
injury would invoke the constitutional

The sole reason for reporting the results of peer
reviews is to restrict the practices of
incompetent physicians. Congress cited the
following as the very reason for the act: ‘There
is a national need to restrict the ability of
incompetent physicians to move from state to
state without disclosure or discovery of the
physicians’ incompetent performance .’
The right to practice medicine without a
governmental agency erroneously reporting that a
physician has been deficient in his actions is a
constitutional property right. Rights, even
constitutional rights, can be waived by express
agreement, or by the failure to assert those
rights. State institutions, however, may not make
waiver of a constitutional right a condition for

In 1986, New York State enacted a system of
physician discipline that includes a hearing
presided over by an administrative law judge, to
ensure due process. Although this system provides
due process, it has the glaring problem of giving
control of hospital privileges to lawyers. A far
better solution is for peer review committees to
be required to observe due process. Lawyers and
other non-physicians may have a role as
consultants, but should not be voting committee

The effects of an adverse peer review decision
are no longer limited to the relationship between
a physician and a hospital. The decision becomes
part of the National Practitioner Data Bank.
Medical peer review must provide physicians the
protections of due process.

Richard Willner, DPM, Kenner, LA

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