Subject: VETO AB 1235 - Corporate Control of Medical Peer Review
- Testimonials of Dr. Vishvendra Rao MD and Dr. Evelyn Li
To the Honorable Governor of California, Arnold Schwarzenegger,
Dear Governor Schwarzenegger ,
Let us analyze the alleged claim of the California Hospital Association, CHA, that AB 1235 will help:
"control the exorbitant cost of peer review hearings that hospitals incur to remove a bad physician from the hospital".
This is a major deception, as Catherine Hanson, former General Counsel of CMA, found out from the General Counsel of Tenet
(the 2nd largest private chain of hospitals in the US, at the time).
It cost Tenet NOTHING because their attorneys' fees are covered within their insurance policy !
How come no one is concerned by the astronomical attorneys' fees physicians incur, when they are left with no choice, but to go through hospital's administrative proceedings, in order to restore their good name ?
How can a physician such as Dr. Rao or Dr. Li sustain such expenses when facing Washington hospital with a budget of $ 500 million ?
No wonder that CEO is so cocky.
Following, please find, excerpts of testimonials of Dr. Rao regarding this subject:
"Exorbitant cost is borne by the the defending physician when you take into consideration the resources available to physicians compared to the hospital."
In my cases the judicial hearings took 5 years, involved 22 exhibit binders ( 11 from my side), 26 witnesses(13 from my side), close to 50 sessions. Enough to bankrupt me if I used a full time attorney, The hospital used 6 attorneys. At multiple points I offered the issue to be mediated by binding arbitration by a third party impartial peer review organization . I also offered at multiple points to resign from medical staff if the allegations are proved by the outside peer review organization. These offers made in good faith and were rejected numerous times. The hospital probably spent more than a million dollars in this process.
The hospital had an option to complete the process expeditiously in 2 weeks with an outside review with probably $6.000.
The exorbitant cost is incurred by the hospital when it wants total control over the whole process of the proceedings and does not want impartial third party to get involved.
Several physicians on staff at Washington hospital, WH, Fremont, sued and won in superior court against WH, but they decided not to pursue, once the hospital appealed, because of mounting legal costs.
Apart from Dr Li's case there are several cases:
1) A case of Seven unnamed Anesthesiologists vs Washington Hospital Fremont which the hospital lost in superior court.
The physicians did not pursue the appeal lodged in appellate court because of mounting legal costs
2) Bhandari vs Washington hospital. The judgement went against Washington hospital. The hospital again appealed the court decision. It is being presently contested at the appeal court.
3) 7 Years ago Washington Hospital took disciplinary action against a respected and well liked surgeon and reported him to the MBC.
The MBC did not take action and closed the case, as it did not agree with the hospital disciplinary report. The Surgeon made a deal with the hospital because he did not want to pursue expensive legal option.
There seems to be a long list of events which fall into a familiar pattern. Hospitals get a blanket immunity as long as hospital follows the procedure. The procedure is under total control of the hospital as it stands now.
It is difficult to compete in resources against a non profit district hospital hospital which has $500 million turnover with $30 million profit. We need to have alternate methods of dealing with disciplinary issues. The physicians are at disadvantage in the present process
From: Vishvendra Rao MD
Subject: Re: Immediate Withdrawal of AB 1235 - Was CMA taken over by CHA ?
Date: September 7, 2010 7:13:10 AM PDT
Present system allows the hearing officer unlimited discretion in controlling the hearing process. The hearing officer who is an attorney can decide which scientific exhibits they can exclude, put limitations on witnesses and cross-examination, Even-though the hearing process is quasi judicial and professional hearing, the attorney hearing officer always invokes sections of laws (favorable to his decision) to support his decisions.
The selection of hearing officer is a weak point in the whole process. There is a incestuous relationship between the hospital and the hearing officer. As it stands the hospital recommends a particular hearing officer. The physician can question him in voir dire and place objections. How is a physician expected to know about a particular hearing officer's record?
The hearing officers come from very small group of individuals who specialize in this particular field of medical staff judicial hearings. Imagine a hospital recommending a hearing officer who has ruled against the hospital in critical decisions. Will he be called back for another hearing?
The CMA and UAPD needs to closely examine how to make the process of selection of hearing officer more fair to the physician. Should there be provision for the physician and the medical staff to chose from larger panel of arbitration attorneys rather than small group of attorneys who are exclusively dependent for living on judicial hearings?
Vishvendra Rao MD
From: Vishvendra Rao MD
Subject: Re: Critical Analysis of California Bill AB 1235 - Medical Peer Review
Date: August 15, 2010 10:07:18 PM PDT
The issues I faced in the hearing are:
1) As you mentioned the attorneys who are hearing officers are a select small pool of individuals who are selected by the hospital.
Hospital knows which ones are more sympathetic to them and will side with them in majority of cases.
In my case My attorney warned me that the hearing officer was known to be very conservative and will side with the hospital 75% of the time.
His track record in my case proved that it was true . He eliminated 75% of my exhibits. Prevented me from calling witnesses, pursuing arguments and
editing my final concluding statement. There is no mechanism to object to a particular hearing officer, even-though you have advance notice about the
hearing officer. Interestingly the hearing officer will rule whether the objection to him as a hearing officer can be rejected.
Do you think the hospital will invite the hearing officer for another hearing in future if they feel that the hearing officer did not agree with them in crucial points?
2) There should be alternate option for physicians apart from hearing process like arbitration or mediation by unbiased reputed state and national peer review
I believe this is the way to go the process will be expeditious, cheap and fair and judged by experts in the specialty.
3) There should be a a time limitation on the judicial hearings. My case started in 2005 and concluded in 2010 total of 5 years with 13 witnesses on my side and
13 witnesses on the hospital side, a total of close to 50 sessions. and total of 13 volumes of exhibits on my side and 13 volumes of exhibits on MEC side.
There were additional probably 10 sessions about disputes about documentation and voir dire sessions. All of them handled by me .
There were 4 hospital attorneys involved !
There were months when there was no single hearing !
4) If I had an attorney representing me I would have had to declare bankruptcy. There is no way individual physician can compete with hospital resources.
In my case hospital attorney was allowed to participate in the debates about disputes.
5) The JRC panel in my case consisted of a Dermatologist as chairman, an internist who during the course of hearing did not know what a normal cardiac output was,
Gyn specialist who practices outpatient surgery. There was no panel member who was related to my speciality of general and vascular surgery.
It was clear during the course of hearing they had trouble following the issues. Many of the technical points just went over their head.
There should be a provision that in clinical disputes there should be provision to select a mutually agreeable specialist panel member from outside the medical staff.
The hearing in cases of clinical disputes should be heard by competent knowledgeable panel members in the same speciality preferably from outside the medical staff.
6) What happens when the hospital reports to data bank and files a 805 report with the board and medical Board California that does not agree with conclusions of hospital?
This happened to another physician in the same hospital . Will there be disclaimer added to the report in data bank and Medical board data .
The legislators did enact the laws and judges ruled on finer points with an intention to make it easy to take a disciplinary action on incompetent physicians who pose
threat to public. At the same time it gave too much procedural leeway to hospitals which has been and can be misused .
Our goal needs to be make sure that the procedure is streamlined , expeditious, fair .As it stands now institutions can get away with murder.
I believe that the society has invested a lot in a physician to give the authority of discipline to a local entity only.
Vishvendra Rao MD
Dr. Evelyn Li prevailed against Washington Hospital, see 106. Retaliation Against Evelyn Li, M.D., http://allianceforpatientsafety.org/retaliation-list.php, but rather than waste her money and the rest of her life in a battlefield designed for Don Quixote, she chose to shoot a documentary to get the truth
What the California Hospital Association, CHA, does not tell you is that no usual and customary physician can survive the war of attrition waged
against the targeted physician. That's why hospitals prevail in over 99% of the cases. Because very few physicians can sustain such a long war
due to the economic and emotional impact on the physician's career, the physician's family often ends up in a divorce and, if the physician is
utterly desperate, commits suicide, see:
Study in Oregon found out that 20% of physicians with licenses on suspension committed suicide,
JAMA May 16, 1980, Volume 243, Number 19, 1915-1917, Read Article
In fact, nothing is easier for a hospital, than to remove a bad physician, as I testified last year before the Senate of CA's Business and Professions
Committee,
You see, Governor, when a physician is negligent, i.e. a " Bad Physician", that physician is fully aware of it through liability lawsuits filed against him,
regular friendly, collegial peer review at the hospital,...
If, that physician is not a significant income producer to the hospital, i.e. a " Rain Maker ", the hospital has no incentive to keep such a physician on staff.
So, here is the dynamic of process:
The hospital administration invites that physician to a " meet and confer " together with the hospital's attorney and they give the physician an
" offer he can not refuse ":
1) If, the physician voluntarily resigns or let his clinical privileges laps without renewing them, the physician can leave and practice at any
other hospital without any problem, no nasty report to the Medical Board of California, MBC,... Nobody knows about it.
2) If on the other hand, the physician does not agree to leave "voluntarily", the hospital will initiate a so called " investigation ", followed by
prolonged and costly administrative proceedings, i.e. peer review hearings, the hospital will have to, by law, to issue an 805 report to the
Medical Board of California, MBC, followed by a National Practitioner Data Report, NPDB, which are provided to all hospitals, professional
liability insurance companies, medical insurance companies, government agencies, including law enforcement,...
Basically, the physician can kiss his medical career " Good By " !
So, what do you think that a " Bad physician " will do ?
Obviously, he or she will take this " reasonable " offer, leave and practice at another hospital in the same city and state, or move out of state.
Voila the mystery of the wandering " Bad physician " resolved, Governor.
For a crash course on sham peer review, look at the " Protocol " followed by hospital administrators and their attorneys under:
It is very simple and very cost effective, just read the advertorial of one of my best " friends ", prominent hospital attorney, Mark Kawa:
To get rid of an alleged " Disruptive Physician ", he doesn't even recommend a peer review hearing !
" Taking Disciplinary Action - Be Creative "
".... the Administrator could assign a security officer to follow the physician throughout the facility. Because these remedies are
administrative in nature and do not impose a limitation on the practitioner‘s privileges, they are non-reportable and do not require
a fair hearing prior to implementing."
1. Taming the Disruptive Physician by Mark T. Kawa, Esq. - as posted on Mr. Kawa's website as a "featured article" - March 14, 2003
Download PDF File, http://allianceforpatientsafety.org/dp3.pdf
2. Confessions of a Serial Killer - Taming the Disruptive Physician by Mark T. Kawa, Esq. - with comments by Gil Mileikowsky, M.D.
Download PDF File, For more details see, "Retaliation Against Dr. Mileikowsky", http://www.allianceforpatientsafety.org/mil-disr.php
In view of all the above, you MUST VETO AB 1235, as it is still a "work in progress",