to AB 655
Senator Bill Emmerson,
Senator Gloria Negrete
Senator Ellen Corbett,
Senator Lou Correa,
Senator Ed Hernandez,
Senator Juan Vargas,
Senator Mimi Walters,
Senator Mark Wyland,
Bill Gage, Chief
Consultant and Rosielyn Pulmano, Consultant,
California Senate Standing Committee on Business,
and Economic Development
by Fax: (916) 445-8899,
Fax: (916) 327-2187, Fax:
(916) 445-0128, Fax:
(916) 327-2433, Fax:
(916) 445-0485, Fax:
(916) 327-3522, Fax: (916) 445-9754, Fax: (916) 446-7382, and
Senators members of the Senate B & P Committee,
you very much for your long standing commitment and dedication to achieve a
peer review process that will protect effectively our patients.
trust that you had a great time during your well deserved vacation and are now
energized to face California's peer review complex issues.
submit my opposition to your consideration at your meeting today at 1:30 PM and
incorporate my letter into the legislative history of AB 655.
after you accomplished a significant step forward last year with SB 700,
AB 655 represents two steps backwards, as AB
655 conflicts with SB 700, authored by Senators Negrete
McLeod and Aanestad, peer review - false 805 reports.
the law implemented through SB 700's passage in 2010, the Medical Board of
California, MBC, is obliged to
independently verify information contained in reports submitted
by hospitals against a physician, 805 report, before the MBC can circulate it,
or post it on the MBC's public website.
Unfortunately, AB 655 does the exact opposite, as it allows hospitals to
transmit libelous information regarding a physician - without the
instance, hospital A could send false information to hospital B and hospital B
might then misuse this defamatory information to report the
targeted physician to the MBC.
There is no doubt that the Consumer, our Patients, are harmed whenever good
doctors who speak against the financial interests of hospitals
are retaliated against.
Hence, unless AB 655 is amended, it will overload the MBC with false 805
reports, as more false information will be circulated.
contrary to the analysis of AB 655, it will have a significant adverse
financial impact on the Budget of the State of California.
This unnecessary public expense will endanger patients, as it will divert
limited resources of the MBC from investigating
legitimate complaints against bad doctors.
AB 655, Section (e) is particularly troubling:
(e) The responding peer review body is not obligated to produce
the relevant peer review information pursuant to this section unless both of
the following conditions are met: (1) The licentiate
provides a release, as described in subdivision (2), that is acceptable to the
responding peer review body.
other words, Section (e) permits a responding peer review body to VOLUNTARILY
provide derogatory information to another hospital without
the licentiate's knowledge, as for instance out of personal animus.
This specific loophole could be easily remedied by amending Section (e) as
peer review body
is not obligated to may not produce
the relevant peer review . . . “
there are two versions of AB 655, a Senate and an Assembly version, that must
Would you, please, introduce this amendment, forthwith, at your meeting today ?
opposition to AB 655 was expressed by prominent physicians and Consumers
Letters to Elected Officials in
Opposition to A.B. 655 (Hayashi), http://allianceforpatientsafety.org/opposition-hb-655-hayashi.php
you know, AB 655 is a variant of AB 1235 (Hayashi) of 2010 the work
product of the California Hospital Association, CHA, which was
vetoed by Governor Schwarzenegger who stated, "I vetoed two
bills on this subject last year, with a clear message for the interested
stakeholders to work together, along with my Administration, on this
extremely complicated and complex issue.", see:
there is still a lot of work to do to protect the consumer. In fact, AB 655
requires multiple amendments before it will reach its stated objectives.
please find, Dr. Frey's letter to Assemblymember Hayashi, dated august 10,
2011, in opposition to AB 655 and pointing out how flawed the
medical peer review process is in California, http://allianceforpatientsafety.org/frey-08-10-2011.php.
Gil Mileikowsky MD
- President and
- Alliance For
Patient Safety, AFPS, http://allianceforpatientsafety.org/
Health Administration Responsibility
Harvey S. Frey MD PhD Esq., Director
552 12th St. Santa Monica, CA 90402-2908
(310) 394-6342 fax: (310)
To: Assemblymember Mary Hayashi
Re: Opposition to AB 655 unless Amended
Dear Assemblymember Hayashi:
congratulate you for your efforts to protect patients from incompetent and
dangerous doctors. However AB 655 can also have the opposite effect.
When I was
in the practice of Radiation Oncology, I was on the staff of as many as
eighteen hospitals at one time, from Burbank to Calabassas and from Encino to
Newhall. So I have an insight into Hospital Staff Politics as good as any
retirement I have run the Health Administration Responsibility Project, Inc.
which has given me a unique view of the lengths that doctors, hospitals, and
HMOs can go to maximize their income at the expense of patient welfare.
Unfortunately, not all doctors are Dr. Kildare. Hospital staffs are riven by
ego, envy, greed, and competition. It is foolhardy to assume that “peer review”
represents a cool-headed, objective review of the facts. When you factor in the
influence of non-physician administrators, who lack even a semblance of
constraint by a Hippocratic Oath, peer review becomes a powerful weapon against
staff members who oppose dangerous medical practices or who support patients
who complain or sue. Even nation-wide professional organizations have attempted
to penalize members who testify for patients in malpractice suits. Even the
Chief of Neurosurgery at UCLA was ousted from the American Neurological Society
for being a plaintiff’s witness.
unfortunate is that we have no alternative to peer review for assessing
physician competence. Therefore it is important that peer review be completely
transparent, and the best way to do that is to be sure that an accused has open
access to everything that is said about him, and a clear path to defending
himself from malicious accusations.
important that AB 655 prevent patient injury by making sure that physicians who
blow the whistle or testify for patient plaintiffs or threaten local medical
monopolies are not punished by hospital staffs.
AB 655 fails
in this regard.
throughout the bill of the term “relevant peer review information” leaves it to
the discretion of the staff what to send, and allows them to make their case
seem stronger by suppressing exculpatory information. This is not a mere possibility,
but has been recognized by the courts in several cases.
should be amended to require the disclosure of the ENTIRE peer review file,
including the testimony of the accused, not just the sections that uphold the
problem with AB 655 is that it does not require concurrent disclosure by the
sending hospital to the accused, putting him on notice of the dissemination of
information about him, and giving him an opportunity to defend himself from scurrilous
attacks. It should not be the responsibility of the receiving hospital to give
this information to the doctor.
although peer review obviously cannot work unless peer reviewers have absolute
immunity to suit for what they say in peer review meetings, the hospital should
be subject to penalties for improper procedures, such as failing to send an
accused everything it sends the requesting hospital or regulatory agency.
changes are made, in many cases AB 655 will achieve precisely the opposite
effect from that which you and I desire.
may be beyond the purview of this bill, it would be very desirable to restrict
the role of hospital staff peers to that of percipient witnesses, while having
questions of guilt determined by a jury of truly independent doctors. Perhaps
distant, non-competing hospitals could pair up to have their staffs act as
juries for each others peer-review cases.
I urge you
to consider these important amendments.
Harvey S. Frey MD PhD JD