Sent: 8/9/2011 By email and Fax    To: California Assembly member Mary HAYASHI, 18th Assembly District,        Chair, Assembly Committee on Business, Professions and Consumer Protections  From: Dr R.V. Rao MD, M.S(Surg) FACS, FICS            General &Vascular Surgery            27225 Calaroga Avenue            Hayward, CA 94545-4338   Subject: OPPOSITION TO AB 655     Honorable Assembly member Ms Hayashi, I am registering my opposition to AB 655 in the present form . I am requesting that this letter be included in the legislative history  I am a general and Vascular surgeon who practices in Fremont/Hayward area for the past 29 years. The bill is defective and does not promote patient safety. Further the bill tilts the balance against the disciplined physician and allows some institutions free hand to indulge in vindictive acts against physician with whom it has developed adversarial relationship.  There seems to be underlying presumption that all peer review actions are fair, balanced and done with intention in furtherance quality care . Some of the peer review actions including governing bodies decisions are done with motives other than quality care as commented by the Supreme Court of California.(see Ref 1 below). This also evidenced in some instances the Medical Board of California found no cause for action on investigation of 805 reports filed by the institution B&P 809 was formulated in an era when the physician community was completely independent from the institution both financially and professionally. This no longer true in this present healthcare transformation, wherein there is a shift of physicians towards employment and financial contractual relationship with the hospital .In certain instances incestuous relationships have developed between medical staff leaders who have entered into paid administrative positions. In certain institutions the administration has become a de facto disciplinary decision-making body.  There have been multitude of lawsuits against adjacent single healthcare district institution in the last 5 years involving disciplinary actions (under B&P 809) against 11 separate physicians . These lawsuits involve bitter disputes about contracts, retaliation for complaint to regulatory agencies, arbitrary removal of elected medical staff leader, retaliation in exercise of constitutional rights of free speech and Assembly. Present B &P 809 et seq tilts the procedural and technical advantage completely against the physician and gives blanket immunity to institutions who indulge in bad faith disciplinary proceedings. Because of the present existing legislation, any legal challenge to the peer review action is guided by Substantial Standard Test and not by Independent Standard Test by the Judge. The playing field is tilted against a physician. This tilt will be compounded if the A.B.655 is adopted    1) Provision in the Bill gives wide latitude to the Responding Institution in conveying information.     Wording of the bill  809.08.(b) allows  "The responding peer review body shall determine the manner by which to produce such information  and may elect to do so through (1) a written summary of relevant peer review information or (2) a relevant peer review record." Under AB 655 the broad immunity is granted to the institution which has all the authority to circulate and disseminate uncontested highly prejudicial physician information which is not true , withhold exculpatory findings , divulge selective findings  and use the receiving entity as dumping ground to carry vindictive retaliatory  acts.   2) Bill needs to define exactly what it means by  "relevant information/records"   The bill does not define exactly what the relevant documents are. It needs to define that the peer review material to be transmitted concerns disciplinary actions taken under B&P code 809 .  As the bill is geared to promote public safety the purpose can be served by transmitting restricted list of legislative mandated  documents  pertaining to disciplinary actions  which  should include    1) Final action of the governing Board 2) Report of the Appellate body 3) Report of the judicial review committee 4) Charges against disciplined physician 5) Written statement by the physician presented to the JRC, Appellate body and final decision maker the governing body                  The above documents need to be authenticated by the responding institution.  6) Any pending legal actions under Ca.Civil Proc Code (Writ of Mandamus)  1084 to 1097               7) Documentation of any reversal of disciplinary decision by the courts    This would address the primary concern of the legislation to promote public safety and promote movement of information between the  peer-review bodies. As the case law stands now. Transmitted information cannot be acted on as the sole evidence to initiate disciplinary process by the receiving institution. The receiving institution has to come to independent decision on mandated independent hearing process.     3) The existing credential processes in institution already promote public safety and A.B. 655 does not improve on the built in        protection to public conferred by existing credential processes in an Health Care institution .             AB 655 is redundant as 1.          Health care facilities are mandated to file 805 report to the medical board and also supply the information to National Practitioners               data bank NPDB) 2.          Every health care facility checks with NPDB and Medical Board  prior to any appointment or reappointment of physician. 3.          Appointments are usually are time limited usually two years 4.          Physician is obligated to disclose his disciplinary actions at the time of initial appointment and subsequent reappointment, some hospitals and insurance plans mandate the physician to report any disciplinary actions as and when they occur  5.          Physician has to sign a release of information form which indemnifies the responding health care institutions at the time of appointment and reappointment  6.          The hospitals can reject application by a physician if any false information is given in the application without incurring any liability 7.          Case law supports governing body decision to deny appointment in the case applicant physician gives false information in his application. Ellison vs Sequoia Health Services 183 Cal.App.4th 1486 (2010)   4) Immunity, Indemnification and  discovery provisions  are already covered by existing law.   The existing laws already confers protection from discovery and immunity Cal. Civ. Code §43.7,§43.8, 43.91,43.97. Evid. Code §1156,§1157 For public health care institutions peer review records are protected by Govt code  section  6254 subdivision k CAL. GOV'T CODE SEC. 6275. Courts have extended additional protections for peer review under  CCP § 425.16, the anti-Strategic Lawsuit Against Public Participation (anti- SLAPP) statute. Kibler v. Northern Inyo County Local Hospital Dist. (2005, Cal App 4th Dist) 126 Cal App 4th 713, 24 Cal Rptr 3d 220, 2005  Cal App LEXIS 195, aff'd (2006) 39 Cal 4th 192, 46 Cal Rptr 3d 41, 138 P3d 193, 2006 Cal LEXIS 8765.   The modifications proposed by some physicians do not address the basic construction defect of the bill .  The courts and attorneys will have a field day if the construction language  of the legislation is ambiguous as is in this proposed bill  I am enclosing some references for your information. I do plan to correspond with you in future about the deficiencies in B&P 809 and  suggest improvements to promote public safety. I will try to deliver this letter to your Hayward Office this week    Yours sincerely    Dr R.V.Rao M.D., M.S(Surg) ,FACS,FICS   References and quotations :   1) CALIFORNIA SUPREME COURT in Mileikowsky vs Westhills Hospital and Medical Center et al 45 Cal.4th 1259 (2009):    Excerpts from:    - Page 1272 “ It is not inconceivable a governing body would wish to remove a physician from a hospital staff for reasons having no bearing    on quality of care." In Smith v. Selma Community Hospital, supra, 164 Cal.App.4th 1478,    - Page 1268 " Another purpose, also if not equally important, is to protect competent practitioners from being barred from practice for arbitrary or discriminatory reasons. Thus, section 809 recites: "Peer review, fairly conducted, is essential to preserving the highest standards of medical practice" (id., subd. (a)(3)), but "[p]eer review that is not conducted fairly results in harm both to patients and healing arts practitioners by limiting access to care" (id., subd. (a)(4)). Peer review that is not conducted fairly and results in the unwarranted loss of a qualified physician's right or privilege to use a hospital's facilities deprives the physician of a property interest directly connected to the physician's livelihood. (Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 823 " "The effect of denying staff privileges extends beyond reducing or eliminating a physician's access to the denying facility. Section 805, subdivision (b) requires that hospitals report certain disciplinary actions, including denials of staff privileges, to the Medical Board. The Medical Board, which licenses physicians, must maintain a historical record that includes any reports of disciplinary information. (§ 800, subd. (a)(4); see Arnett v. Dal Cielo, supra, 14 Cal.4th at p. 11.) A hospital considering whether to grant or renew a physician's staff privileges must contact the Medical Board to learn if some other facility has reported a disciplinary action involving the physician. (§ 805.5, subd. (a).) And, as occurred here, a hospital usually is required to report disciplinary actions to the National Practitioner Data Bank, established for the purpose of tracking the activities of incompetent physicians. (42 U.S.C. § 11133(a).)[4] A hospital's decision to deny staff privileges therefore may have the effect of ending the physician's career."   2) Dr Huntoon National expert on Bad faith and Sham Peer Review    A) Lawrence R. Huntoon, Editorial, Sham Peer Review: The Unjust "Objective Test,"       J. Am. Physicians & Surgeons, Dec. 22, 2007, at 100       " According to case law, bad-faith motives of a hospital and peer reviewers, including retaliatory, hostile, malicious, discriminatory,         anti competitive motives, intended to harm another physician, are considered irrelevant ! "   B) Sham Peer Review: Disaster Preparedness and Defense, Presented at AAPS meeting Dallas, TX January 21, 2011      http://www.youtube.com/watch?v=Kj5T8UR_ugU      - Tactics Characteristic of Sham Peer Review, Presented at AAPS meeting Houston, TX Feb 5, 2010      http://www.aapsonline.org/newsoftheday/00883      - Sham Peer Review: the Unjust “Objective Test" , http://www.jpands.org/vol12no4/huntoon.pdf      - Abuse of the “Disruptive Physician” Clause, http://www.jpands.org/vol9no3/huntoon.pdf      - The Insulting Physician “Code of Conduct”, http://www.jpands.org/vol13no1/huntoon.pdf      - The Psychology of Sham Peer Review, http://www.jpands.org/vol12no1/huntoon.pdf      - Sham Peer Review and the Courts, http://www.jpands.org/vol11no1/huntoon.pdf      - Sham Peer Review: the Poliner Verdict, http://www.jpands.org/vol11no2/huntoon.pdf      - Sham Peer Review: The Fifth Circuit Poliner Decision, http://www.jpands.org/vol13no4/huntoon.pdf      - Tactics Characteristic of Sham Peer Review, http://www.jpands.org/vol14no3/huntoon.pdf   3) Yann H. H. van Geertruyden, The Fox Guarding the Henhouse:  How the Health Care Quality Improvement Act of 1986 and State Peer Review Protection Statutes Have Helped Protect Bad Faith Peer Review  in the Medical Community, 18 J. Contemp. Health L. & Pol'y 239, 252 (2001)  " Although it is inaccurate to assume that all peer review committees are predisposed to targeting a certain type of physician, it is nonetheless accurate to suggest that the peer review process, as currently structured, offers peer review participants the ability to practice arbitrary peer review with little fear of repercussion."  http://www.peerreview.org/articles/fox_henhouse.htm   4) List of over  200 Physicians who were retaliated against because they did what they thought was best for their patients:            http://allianceforpatientsafety.org/retaliation-list.php