Subject: VETO AB 1235 - Corporate Control of Medical Peer Review
To the Honorable Governor of California, Arnold Schwarzenegger,
Dear Governor Schwarzenegger,
Following, please find, the insightful and authoritative analysis of AB 1235 by Michael Fitzgibbons MD,
who's knowledge about hospitals' misconduct and abuse of power is legendary and far from academic.
Dr. Michael Fitzgibbons was Chief of Staff of his hospital, when the administration retaliated against him
because he stood up for the rights of the Medical Staff ! !
The Orange County Medical Association, OCMA, CMA and the AMA intervened in his support, as Chief of Staff of his hospital.
Fitzgibbons v. IHHI
(Anti-SLAPP—Freedom of Speech)
This issue in this case relates to a physician’s right to free speech in connection with commentary about the quality of care
in a particular care setting. In this case, Integrated Healthcare Holdings, Inc. (“IHHI”), the owner of four hospitals sold by
Tenet in Orange County, sued Dr. Michael F. Fitzgibbons for defamation based allegedly on an email he sent to several
people. The email allegedly expressed concerns about the financial health of IHHI and its possible effects on patient care.
IHHI alleges it was damaged by the email, though the complaint filed by IHHI was very vague as to what those damages were.
Dr. Fitzgibbons filed a motion in Superior Court where the case was filed to have the suit thrown out as a “SLAPP” suit.
A SLAPP suit is one that is strategic in purpose, not actually designed to compensate a plaintiff for unlawfully-caused damages.
Instead, it is intended to intimidate a critic so that the critic will stop publicly initiating and/or encouraging debate on an issue of
importance to the public which involves the plaintiff. SLAPP stands for “Strategic Lawsuit Against Public Participation.”
The Superior Court ruled against Dr. Fitzgibbons and refused to dismiss the suit. Dr. Fitzgibbons exercised his right to an
expedited appeal. On April 24, 2006, CMA filed an AC brief in support of Dr. Fitzgibbons. CMA’s brief argues that there is a
fundamental public interest in encouraging physicians to voice their opinion on policies and practices that affect the health of
their patients. CMA also emphasized that a proper interpretation of the anti-SLAPP law is crucial to CMA’s members because
in today’s complex environment, physicians act not only as healers, but as advocates, information providers and citizens who
speak out on issues relating to health care. In fact, depending on the area, a physician’s speech in the public arena may be
mandated by law or ethics.
In June, 2006 the Court of Appeal of the State of California, 4th Appellate District. Ruled in favor of Dr. Fitzgibbons and the
arguments made by CMA and AMA in our AC brief. The court ruled that the physician’s e-mail message expressing concern
for IHHI’s financial health falls squarely with the right of free speech on a public issue or a matter of public interest.
Read CMA Amicus Brief
Michael and his family's life were personally threatened, right here in Southern California, in a fashion that you would only expect
from organized crime, killing squads, hired "private security" or contract killers, see:
9. Attempt to physically injure and intimidate the physician Read More
Attempt to injure and intimidate Michael Fitzgibbons, M.D.,
URGENT - Letter to Governor Schwarzenegger to VETO AB 1235 - Corporate Control of Medical Peer Review
Subject: URGENT - Letter to Governor Schwarzenegger to VETO AB 1235,
- Corporate Control of Medical Peer Review
Date: September 14, 2010 8:09:43 AM PDT
I strongly oppose AB 1235 because it allows (in my reading) a hearing officer to substitute for a 'jury of one's peers.'
It also allows a hearing officer to terminate the hearing for unspecified reasons. We all want to reform peer review but
AB1235 is dangerous. Why would doctors be excepted from a fundamental right of our system of jurisprudence?
Juries came about because of abuse of power by the sovereign. That is what we are complaining about here.
As a physician who has been sham peer reviewed, sued by the hospital in retaliation, arrested and handcuffed and
jailed in retaliation by a hospital system, I am aware how hospitals manipulate peer review. A gun was planted in my car
as was a bag of Ectasy, I was arrested and jailed because I beat the hospital's retaliatory lawsuit. (Google search Fitzgibbons IHHI)
The hospital CEO said, 'he’s seen hospitals sue physicians in the past and the medical staff quickly distances themselves
from the tainted physician out of fear of being included in the litigation...And the hospital always wins.'
Current peer review is post hoc, reactive, punitive, controversial, personal, and not systems oriented. It focuses on human error
and punishes people who commit them. We need a new system that recognizes that error is human and seek systems and team
approaches which trap and screen errors. This bill does not do that.
AB 1235 changes a bad system to a dangerous one. It takes peer out of 'peer review.' Hearing officers will have too much power.
Please veto this bill.
If you wish to know how to fix peer review read on.
Fixing the peer review system means moving it away from blame and sham(e) reporting, to system change, that would prevent abuse
of the system as a tool to control physicians with "diverse" and divergent opinions. You can't address peer review by culling rotten apples.
It's the system that is rotten because the hospital's starve doctors' ability to educate and assist 'bad apple' colleagues. And what happens
when you get rid of the bottom 5% bad apples? Another bottom 5% take their place—by definition. The problem is ALL the apples are bad,
in one way or another! We all know if you look hard enough at our practices, there will be someone who finds something to complain about.
It's basic Deming. You can't solve the problem putting heads on poles.
AB1235 focuses on the 'trial' aspect of peer review which is the least important aspect. Taking away the jury of peers will only make it worse.
The problem is WE ALL MAKE MISTAKES EVERYDAY. We don't want our livelihoods taken away because we are human. We want the system
to accept our humanity and help us...not punish us. The current system allows hospitals to use peer review as a retaliatory tool--and they almost
always get away with it !
The law of error says: The best people make the worst mistakes. This produces a paradox. Churchill was Prime Minister when Singapore was lost.
He wasn’t sacked. Why not? This demonstrates the law of error. Therefore, the system must work for the ‘best people’ too.
This whole controvery begins with the imbalance of power in hospitals.
Doctors cannot carry out their mission of monitoring quality because they have no resources allocated to do it.
The discretionary budget for quality improvement of most departments of medicine and surgery is exactly zero !
When was a hospital fined for giving too little money for quality improvement ? Never!
A medical staff actually empowered to regulate itself will scare the living you know what out of administration.
The Medical Staff must be able to ‘touch the money.’ Medical staff’s must have sufficient funds for peer review including funds to insure legal representation.
And while we’re at it, governments and insurance companies beggaring doctors with economically substandard payments to balance their budget is the surest
way to keep abuse in the system.
Real peer review should monitor concurrently, not be post hoc.
Should be proactive, rarely reactive. Mentors should have the power to review practices of doctors AND the hospital. They should be PAID !
Peer review should be self directed and no fault, not punitive unless error is intentional or repeatedly negligent.
Peer review should remove bias and avoid clinical controversies where there is not good data. It should be medical staff driven, not administration driven.
It must not be retaliatory.
Confidential physician self assessments is crucial, because doctors will not be honest if this information is to become public. The doctor will grade himself.
He will review his own performance. Extramural peers will review him also.
He will decide if he is meeting his goals, with the help of ‘peers’ or mentors.
Departments would meet to discuss best practices. A high level of attendance would be mandatory. An institutional buddy system should develop where
departments meet to discuss best practices. The buddy system would extend across hospitals and include like institutions. If there is an outlier doctor,
the whole department has failed. In medicine, we ARE our brother’s keeper.
Reaching the outlier doctor would rely on techniques used by drug companies. Representatives sent to the doctors office to review his practices and
individually tutor him. Expensive? Yes. Less expensive than disaster? Yes.
Obviously a regional medical corporation would be very helpful and necessary in overseeing such a system and regulating it.
Imagine if airline pilots were treated the way doctors are ?
Do you really think that by encouraging pilots to hide their shortcomings and cover-up mistakes we will prevent crashes ?
Let's fix peer review. This bill doesn't do that. It makes it worse.
Michael Fitzgibbons MD