As submitted to http://gov.ca.gov/interact#email, on September 21, 2010, at 01:40 PM

  Subject: VETO AB 1235 - Critical Analysis of CMA's Petition in support of AB 1235 - Corporate Control of Medical Peer Review


  To the Honorable Governor of California, Arnold  Schwarzenegger,

  Dear Governor Schwarzenegger, 

  CMA's legislative staff is so overworked that, at times, it appears to be out of touch with CA Physicians' Parliament, i.e. CMA's House Of Delegates,    
  HOD.
    
  This was unfortunately the case, when CMA's legislative staff circulated on September 17, 2010, a petition to the Governor of California which is     
  contrary to the spirit and the letter of CMA's HOD resolutions that triggered AB 1235. I am an author or co-author of those resolutions approved by 
  CMA's HOD in 2006 and 2008, see below in my letter to Mr. Corcoran.
  
  CMA's Petition states as follows:

   1. "... prevents physicians from simply being able to move to the next hospital, potentially placing patients in danger, without undergoing peer review."


     In reality, AB 1235 would give a free ride to negligent physicians with hospitals' exclusive contracts, as they will be able to avoid reporting 
     to the Medical Board of California, MBC and the National Practitioner Data Bank, NPDB, when their contracts are terminated.

     This runs contrary to every single principle and many years of patient safety and consumer advocates' efforts to compel hospitals to report    
     negligent physicians and will further aggravate the existing epidemic of medical errors and complications. 
 
     Furthermore, it will give RAPED (Radialology, Anesthesiology, Pathology and Emergency Departments) additional control over hospitals'  
     medical staff politics, thus reinforcing the sinistre Code of Silence that permeates through the House of Medicine.

     AB 1235 creates a double standard by allowing physicians employees or contracted by the hospital to escape all scrutiny. 
     De facto, it guarantees the protection of mediocrity and irresponsible conduct under the corporate umbrella.

      Hence, AB 1235 increases the ability of any hospital to blackmail any physician by threatening to report the physician to the Medical Board of   
      California, MBC, and the National Practitioner Data Bank, NPDB.

      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, see: 

     Testimony of Gil Mileikowsky, M.D. "Peer Review Victim of Murphy's Law" -  Testimony HTML Format, PDF Format, or Watch Video,

    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:

   Retaliation Against Physicians - Methods and Strategies - Sham Peer Review, http://allianceforpatientsafety.org/retaliation.php

   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."

   See, Retaliation Against "Disruptive" Physicians - Methods and Strategies, http://allianceforpatientsafety.org/disruptive.php

  • 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
    •

       There is nothing in AB 1235 that prevents bad physicians from being able to move to another hospital after wrongdoing at a previous hospital. 

       2. " It will also require the sharing of peer review information between legitimate peer review bodies to avoid duplication and ensure that 

             physicians in need of quality improvement receive it."

          The operative legal precedent regarding the duties and responsibilities of hospitals to share with each other information 

          about physicians is Bell v. Sharp Cabrillo Hosp.(1989) 212 Cal.App.3d 1034.

         See page 22 of Amicus Brief Filed by the American Association for Justice (AAJ) et al, in Support of Petitioner/Apellant 
         Gil N Mileikowsky, M.D. filed in the Supreme Court of California, 8/28/2008, 

         " West Hills relies on Bell v. Sharp Cabrillo Hosp.(1989) 212 Cal.App.3d 1034, for the proposition that hospitals are 
         “reticent about voluntarily disclosing their confidential peer review documents.” OBOM at 32, quoting Bell, supra, 
          at 1040 & n. 5, 1043. In point of fact, the quoted passage is the court’s paraphrase of the excuse given by the hospital 
          for not seeking such documents. The court of appeal, however, went on to hold that the hospital was under a duty to 
          seek out the peer review information from a hospital that had withdrawn the doctor’s privileges. Indeed, the court upheld 
          a medical malpractice verdict against the hospital based on the hospital’s negligent failure to do so. The court also 
          referenced expert testimony that the standard practice in California is for hospitals to make peer review documents 
          available where the doctor in question has signed an authorization, as Dr. Mileikowsky did in this case. In fact, counsel 
          for Cedars- Sinai, Gordon Simonds, had indicated in a letter that Cedars-Sinai would release the documents if directly 
          requested by West Hills. ABOM at 9-10 (citing supporting documents in the Administrative Record). West Hills, however, 
          like the hospital held liable in Bell, made no request to Cedars-Sinai. ABOM at 20-21, citing supporting documents 
          in the Administrative Record."

          So in fact, AB 1235 does not provide any new guidance to hospitals that is not already part of the statute regarding their 
          obligation to share such information with each other. 
      3. " Further, the bill allows for peer review to be done external to the facility where the physician practices.  This provision is appropriately 
           limited to circumstances where peer review is ineffective, nonexistent, or biased."

         This bill provides the hospital the authority to deny a physician the right to an external review, as it is the hospital that controls the 
         qualifications and determines if the conditions have been met to justify an external review. Sounds fair and reasonable doesn't it ?

      4. " The bill also eliminates delay and guarantees fairness in panel hearings by specifying the qualifications and powers of hearing officers."

         AB 1235 does NOT eliminate any delay, as it has no deadline by which the hospital must exhaust the administrative proceedings.

         There is no provision that would mandate the exhaustion of the administrative proceeding within any time limit, let alone a maximum 14 days.

         The mandatory deadline for the hospital to submit an 805 report to the Medical Board of California is 14 days. 
         The deadline to submit a report to the National Practitioner Data Bank, NPDB, is 30 days from the suspension of 
         the physician's clinical privileges.

         The above is of outmost importance as justice delayed is justice denied. The damage inflicted to the physician's 
         medical career is irreversible once these two reports are filed, see: 

         How to Get Rid of A "Disruptive" Physician, http://allianceforpatientsafety.org/howto.php - 4)  "Go for the Jugular"
          
         Summarily suspend clinical privileges under false pretense of "imminent danger.

         This triggers automatic reporting of physician to state medical boards, National Practitioner Data Bank, 
         malpractice insurance carriers, medical insurance carriers, …    

         The association of a summary suspension with the required "exhaustion of administrative remedies," protracted   
         over many years, assures the demise of the physician's career, without any possible court's intervention. 
         The hospital wins by attrition.


         AB 1235 does not address the common abuse of power by hospitals claiming that a physician is an imminent danger, 
         when in fact the physician stands up for Patient Safety. Accordingly, AB 1235 does nothing this petition states.


      5. " The bill requires that hearing officers be free from conflicts of interest and sufficiently qualified to lead these quasi-judicial hearings."  

         Business & Professions Code of CA section 809 already has such provisions which are violated on a daily basis by the hospitals and 
         their paid agents, such as the hearing officers that they chose, appoint and compensate. Due to the fact that the hearing officer is the only 
         individual designated in B & P 809 to determine whether or not he or she are in any conflict of interest. AB 1235 does NOT amend that 
         part of B & P 809. 

      6. " The bill specifies the powers of the hearing officers to maintain decorum and a timely hearing process."  


         Business & Professions Code of CA section 809 already has such provisions which are violated on a daily basis by the hospitals and 
         their paid agents, such as the hearing officers that they chose, appoint and compensate.

         Following, please find, Dr. Weinmann's opinion regarding this allegation, dated September 20, 2010.

       From: Robert Weinmann
       Date: Mon, 20 Sep 2010 23:37:32 -0700 (PDT)
      
        Subject: Re: CONTACT THE GOVERNOR AS SOON AS POSSIBLE TO IMPROVE PHYSICIAN PEER REVIEW AND PATIENT CARE !

      Dear All,
     
      The quoted section (4)of AB 1235 does not seem OK to me. Here's some of the why nots:
     
    * the hearing officer gets too much power if he can decide unilaterally what is "proper decorum." 
      "Proper decorum" is often invoked as an attempt to muzzle the more outspoken defendants. The 
      idea is to make some doctors appear "disruptive" when they're providing a vigorous defense. 
      It was specifically crafted after Dr. Mileikowsky got a decision overturned. The hospitals hope 
      to overturn this court decision.
     
    * the hearing officer decides what exhibits qualify as proper evidence? No sir! Each side presents 
      the best evidence it can muster. The hearing officer should not be allowed to exclude evidence.
     
    * the hearing officer decides who can testify on behalf of the defendant? No sir! Each side calls 
      its best witnesses. The hearing officer should not be allowed to exclude testimony.
     
    * the hearing officer should not be allowed to define "flagrant non-compliance." All of these 
      items tilt the process in favor of the hospital administration and against defendant doctors.
     
    * hospital administrations are already busy crafting and re-crafting peer review bylaws. Passage 
      of this bill will only make that effort an even higher priority for hospital administrations. 
      Personally, I was not a member of the Association of California Neurologists at the time their 
      president wrote the organization's letter requesting that the Govenor veto AB 1235. I've just 
      sent for an application. I'm disappointed that I have to look other than to the CMA for this 
      level of support.
     
     Robert L. Weinmann, MD
     Editor, The Weinmann Report
     2040 Forest Avenue
     San Jose, CA. 95128

      7. " Additionally, the bill allows physicians to be fairly represented in this hearing process."

       Absolutely FALSE, because AB 1235 allows for exceptions, such as if a physician is represented by counsel and later, for whatever reason, 

       is not represented by counsel, the hospital is still entitled to continue to be represented by counsel, while the physician is not represented. 

       Sounds fair and reasonable, doesn't it ? 

      

       Dear Governor Schwarzenegger,  

       To Err is Human and CMA is not immune to such shortcoming, but according to Seneca the Younger: 


       " to persist (in the mistake) is diabolical." http://en.wikipedia.org/wiki/List_of_Latin_phrases_%28E%29 

       In view of all the above, you MUST VETO  AB 1235, as it is still a "work in progress",

       Respectfully submitted,


       P.S: Enclosed, please find, my letter to the CEO of CMA, Mr. Dustin Corcoran, dated September 20, 2010.

    Subject:  Fwd: URGENT ! - AB 1235 - Was CMA taken over by CHA ?

    Date:  September 20, 2010 12:17:17 AM PDT

    To: 
       Dear Mr. Corcoran,

       Upon review of my correspondence with CMA, I noticed that your e-mail address was missing among the cc of the e-mail 
       I sent to Mr. Pruitt, on September 19, 2010 8:45:54 AM PDT, enclosed.

       I know how busy you are, so I do not want you to overlook the deadline to respond to my e-mail, as stated:

       " In view of the above and the urgency of this matter, kindly provide me comprehensive answers to the above requested 
       information by Wednesday September 22, 2010, at 5 PM, Pacific Standard Time, otherwise I shall have no choice, but 
       to bring these discrepancies to the attention of our Governor."

       Respectfully submitted,

       Begin forwarded message:

    Subject:  URGENT ! - AB 1235 - Was CMA taken over by CHA ?

    From: Gil Mileikowsky
    URGENT -  REQUIRES  YOUR  IMMEDIATE  ATTENTION ! !
    ----------------------------------------------------------------------------------------

    Subject: AB 1235 - Was CMA taken over by CHA ?

    Dear Mr. Pruitt,

    Thank you very much for your e-mail, dated September 17, 2010, enclosed.

    Are you familiar with Vidal Sassoon' s commercial ?

    "If you look good, I look Good "

    As a consequence, " If you look Bad, I look Bad."

    I am a proud member of CMA and AMA since 1985.

    In 2001, CMA and AMA were the first medical organizations that came forward to assist me facing Tenet, at the time
    the 2nd largest private chain of Hospitals in the US, see: Mileikowsky v. Tenet HealthSystem (Mileikowsky-II):

    Amicus Brief and Application to File of the American Medical Association and the California Medical Association 
    As Sent to the Court of Appeal of the Sate of California (Exhibit 1) - 05/15/2001, Court of Appeal Case # B150337,

    In 2009, once again CMA and AMA were at the forefront before the CA Supreme Court with me facing the largest chain 
    of private hospitals in the country, Hospital Corporation of America, HCA, http://www.hcahealthcare.com/, see:

    Mileikowsky v. HCA, West Hills Hospital Medical Center (Mileikowsky-III),

    and

    California Medical Association Amicus Letter urging the Supreme Court of California to Deny Petition for Rehearing - 4/27/2009

    Hence, I am very concerned when I read your sample letter to the Governor re: AB 1235, as it is contrary to the spirit and the letter 
    of the corresponding resolutions passed by CMA's House Of Delegates, HOD, in 2006 and 2008, see:

    Medical Societies - Resolutions, Policies, and Guidelines, http://allianceforpatientsafety.org/resolutions.ph

    CMA solution 501-08 passed by California Medical Association House of Delegates, October 2008


  • CMA - Resolutions passed by California Medical Association House of Delegates, October 2006
    Read Resolutions

  • AMA - Resolution on Protecting Physicians' Due Process Rights - considered by AMA House of Delegates - adopted by Arizona Medical Association, June 2006, Read Resolution

    •    Accordingly, please provide me the evidence that supports your allegation that:

       "The California Hospital Association has made AB 1235 their top target to kill this year and has generated hundreds of letters urging the 

        Governor to veto the bill."

        In the sample letter, that you ask the Specialty Societies to send to the Governor, you have some bold statements.

        Kindly, explain to me how AB 1235, as written presently, 

       1. "... prevents physicians from simply being able to move to the next hospital, potentially placing patients in danger, without undergoing 

            peer review." 

       2. " It will also require the sharing of peer review information between legitimate peer review bodies to avoid duplication and ensure that 

             physicians in need of quality improvement receive it."

       3. " Further, the bill allows for peer review to be done external to the facility where the physician practices.  This provision is appropriately 
              limited to circumstances where peer review is ineffective, nonexistent, or biased."

       4. " The bill also eliminates delay and guarantees fairness in panel hearings by specifying the qualifications and powers of hearing officers."

       5. " The bill requires that hearing officers be free from conflicts of interest and sufficiently qualified to lead these quasi-judicial hearings."  

       6. " The bill specifies the powers of the hearing officers to maintain decorum and a timely hearing process."  

       7. " Additionally, the bill allows physicians to be fairly represented in this hearing process."

       Please, allow me to ask you a few questions in order to understand CMA's process:

       1. Who wrote this sample letter that you circulate on behalf of CMA ?

       2. Did the members of the executive committee of CMA read and approve the content of your letter ?

       3. Did the members of the Board Of Trustees, BOT, of CMA read and approve this letter ?

       4. Did Mr. Francisco Silva, General Counsel of CMA review and approve this letter ?

       5. Did Mr. Dustin Corcoran, CMA's CEO, read and approve this letter ?

       6. Who instructed you to send this letter to other organizations on behalf of CMA ?

           Following, please find, my letters to Governor Arnold Schwarzenegger with my Critical Analysis of AB 1235, Read Letter in PDF Format
           and my Proposed Amendments to California's Bill AB 1235, Read Letter in PDF Format.

           For your convenience, you will find letters sent to Governor Arnold Schwarzenegger asking him to VETO AB 1235 at:

           Clearly, we do not have the same understanding regarding the impact of AB 1235. I suspect that it is due to a significant gap between 
           us regarding our respective knowledge and intimate experience regarding sham peer review, see: 

          Retaliation Against Physicians - Methods and Strategies - Sham Peer Review, http://allianceforpatientsafety.org/retaliation.php

          The Rape of the Peer Review Process in the USA - Sham Peer Review, http://allianceforpatientsafety.org/rprpusa.php

          and

          Sham peer review - Wikipedia. http://en.wikipedia.org/wiki/Sham_peer_review

          In view of the above and the urgency of this matter, kindly provide me comprehensive answers to the above requested 
          information by Wednesday September 22, 2010, at 5 PM, Pacific Standard Time, otherwise I shall have no choice, but 
          to bring these discrepancies to the attention of our Governor.

          Respectfully submitted, 

          Gil Mileikowsky MD - http://allianceforpatientsafety.org/socalphysgm.pdf 


    ENCLOSURES:

              From: David Pruitt 
              Date: Friday, September 17, 2010, 2:18 PM

          Specialty Societies,

           
          Attached is an alert that went out to our key contacts urging
          the Governor to sign AB 1235 (Hayashi, Peer Review).  This bill
          is sponsored by CMA and needs your help in order to ensure that
          the Governor will sign it.  The Governor has until the end of
          the month to make a decision.
           
          The California Hospital Association has made AB 1235 their top
          target to kill this year and has generated hundreds of letters
          urging the Governor to veto the bill.     
           
          ·         Can you please send a formal letter from your society
          as soon as possible urging the Governor to sign the bill.        

                          Attached is a draft letter for each bill.  Please personalize
          the letter so that it does not appear to be a form letter. 
          o   Please fax a copy of your letter to 916-551-2549 or email it
          to Nicole at nmadani@cmanet.org <mailto:nmadani@cmanet.org>

          o   We have included a cc on the letter for the author of the
          bill and we will send copies of your letters to the author. 
           
          ·         Please also forward the alert to your members and ask
          that they *CALL, EMAIL, or FAX the Governor* *as soon as
          possible and urge him to sign AB 1235.  *Below is contact
          information for Governor Schwarzenegger. 
          * *

          *Phone: 916-445-2841*

          *Fax: 916-558-3160*

          *Email:  http://gov.ca.gov/interact#email*

           
           
          Thank you,

           
          David

       Date


       Governor Arnold Schwarzenegger

       State Capitol Building Sacramento, CA 95814

     

       Dear Governor Schwarzenegger,

       I am writing on behalf of the (Name of Specialty Society) to respectfully request your signature on AB 1235, which seeks to improve the peer

       review system in California and ensure that quality health care is being provided to patients.  Currently, the peer review system works very well 

       in most facilities, but it can be open to manipulation and unreasonable delay in others.  This bill creates an environment more conducive to peer 

       review through increased fairness and transparency so that physicians and surgeons are continuously monitored and assessed to improve the 

       quality of care provided to patients.

       AB 1235 limits the ability of physicians to avoid peer review when hospitals terminate contracts when quality of care concerns have been raised.  

       This prevents physicians from simply being able to move to the next hospital, potentially placing patients in danger, without undergoing peer review.  

       It will also require the sharing of peer review information between legitimate peer review bodies to avoid duplication and ensure that physicians 

       in need of quality improvement receive it.

       Further, the bill allows for peer review to be done external to the facility where the physician practices.  This provision is appropriately limited to 

       circumstances where peer review is ineffective, nonexistent, or biased.  By allowing this limited external review, it is more likely that unnecessary 

       delay will be eliminated and fairness will be added to the system, thus protecting patients.The bill also eliminates delay and guarantees fairness 

       in panel hearings by specifying the qualifications and powers of hearing officers.  The bill requires that hearing officers be free from conflicts of 

       interest and sufficiently qualified to lead these quasi-judicial hearings. The bill specifies the powers of the hearing officers to maintain decorum 

       and a timely hearing process.  

       Additionally, the bill allows physicians to be fairly represented in this hearing process.

       The peer review process is an important quality control measure that continuously monitors and assesses care provided by physicians to improve 

       quality.  For these reasons, our medical society urges your approval of this measure.  Thank you.

       Sincerely,

       YOUR NAME HERE

     

       Cc:  Assembly Member Mary Hayashi