Physician discipline is a lot like hunting gazelles in Africa. Recall the wildlife movies you’ve watched. A herd of thousands of gazelles graze peacefully across vast African plain. Creeping undetected in the grass to the right are several lionesses studying the herd, waiting for the opportune moment to lunge full speed after their chosen prey. Suddenly, the chase erupts. The drama is riveting. The surprised victim, now at full alert, breaks into a run. With few exceptions, the surrounding gazelles seem undisturbed. Most continue grazing, unconcerned with the intense life-and-death struggle going on about them.

Physician discipline is very similar. The strategy and power of the hunter, the hapless innocence of the hunted, and the apathy of the group all visually represent what occurs in most cases of physician discipline. Unfortunately, the scenario is repeating with increasing frequency in California.

Social pressures for change in health care drive increased regulation. In the past, physicians were revered as a resource and friend of the community . Now, due to the increases in health care costs, they are viewed with suspicion. Current estimates of health care costs are $939.9 billion per year. Although direct physician costs account for only 18.6 percent of this figure, it is estimated that physicians spend 85 percent of the health care dollar with their pens through prescriptions for drugs, devices and hospitalizations. Because health care costs are seen as a threat to the economic health of the nation, physicians have been cast in the role of the enemy rather than cherished professional.

These economic pressures and changes in the social status of the physician have resulted in reforms not only to decrease costs in health care but also to increase physician discipline. Responding to public perception consumer protection in medical care is lax, legislation passed in 1991 (SB2375-Presley) revamped the physician disciplinary system. The BMQA, renamed the Medical Board of California, mandated tougher actions on bad doctors, a reduction in case backlogs and slashed investigation time. Prior to this legislation, approximately 175-200 Medical Board accusations were filed per year against California physicians. Following this reform, the number of accusations rose to 1,000 the first year. At first, this was explained as a correction due to the backlog. Now, however, the continued increase has been attributed to an increased number of complaints against physicians (6,000 - 8,000 / year), and to increased force of investigators and prosecuting deputy attorneys general. The 1991 legislation created a new Attorney General Health Quality Enforcement section for the purpose of prosecuting Medical Board cases. Between approximately 50-60 full-time deputy attorneys general are employed to prosecute the approximately 60,000 practicing physicians in the state. This ratio of attorney general prosecutors to physicians exceeds the ratio of district attorneys per county population to prosecute criminals in any county in the state.

Physicians who believe the Medical Board only prosecutes the totally disreputable physician or none at all are operating with a perception that is as outdated as the horse and buggy. Cases are arising against legitimate physicians with increasing frequency. To analogize the Medical Board to a medical test, it is sensitive but no specific. While more accusations are being filed, many should never have been charged. At the same time, some truly bad physicians continue to escape discipline.

Case in point: Physician A was a model physician. He was competent, compassionate, hard-working and devoted to his patients and family. He had practiced almost 20 years in the same community. No one had ever made a malpractice claim against him. He had never been censored or disciplined. He held a record of unblemished privileges at three local hospitals. He had been Chief of the Family Practice Department at the hospital and served as Utilization Chairman of the county’s IPA. He was well-respected by his colleagues.

When we saw him in our offices, he was facing a Medical Board action to revoke his medical license. He had seen a young mother as a new patient, performed a physical exam and listened to the patient’s litany of problems, which focused on stress and insomnia. He prescribed Xanax and referred her for psychiatric help.

One problem the patient briefly mentioned among the multitude of problems was the 11-year-old neighbor boy: He had damaged her 6-year-old daughter’s bike and, just the night before, the daughter told her he had raped her some time in the past. Dr. A. told the patient that, if she believed a rape has occurred, she could report it to Child Protective Services. Dr. A. did not see the child as a patient, nor did he believe a rape had actually occurred.

The patient not only reported the incident to Child Protective Services, she complained to the Medical Board that Dr. A. failed to report child abuse. Several months later, the Medical Board sent the mother and child with a hidden tape recorder to visit Dr. A. Although Dr. A. reiterated his advice to the mother, he still did not report the rape; he still did not believe a rape had occurred. Nonetheless, the district attorney brought criminal charges against the physician for failing to report child abuse. Dr. A. did not obtain legal representation. He could have easily defended the failure to report based on his reasonable belief that no abuse had occurred. Instead, he took the advice of the district attorney to plead nolo contendere, pay the fine, take probation for a short period, and eventually have the entire incident expunged. Although the DA was aware this plea would be grounds for revocation of his medical license, the DA did not inform Dr. A. of that fact.

Subsequently, the Medical Board brought an action to revoke Dr. A.’s medical license on the basis of a conviction of a crime substantially related to the practice of medicine. The sole issue in such a case is whether or not the conviction occurred and its relation to the practice of medicine. Despite intense negotiations with the attorney general, Dr. A.’s license was revoked, stayed and he was put on probation for one year.

There are things you can do to avoid disciplinary action or minimize its impact:

1. Denude your mind of the concept that it could never happen to you.

It could. At the current rate of enforcement, in 10 years a significant percentage of the physicians in California will have been disciplined. Considering the effort and resources expended to obtain a medical education, a little effort spent to preserve it is only rational.

2. Purchase insurance for administrative actions.

Legal representation for a Medical Board action can easily run $50,000 - $100,000. Administrative Insurance will cover disciplinary proceedings initiated by the Medical Board, a hospital medical staff, HMO, PPO, Medicare Professional Review Organization (PRO), as well as Medicare/Medicaid reimbursement disputes. This form of insurance is not usually covered by your malpractice insurance; however, with the increasing demand, a few malpractice carriers have added Administrative coverage. You should check your policy or call your agent for information. If it is available to you, it is well worth the small additional premium.

3. Maintain constructive relationships with your professional colleagues.

Poor interpersonal skills subject the physician to an increased likelihood of receiving discipline. Abusive behavior to colleagues or nurses creates enemies who will be unforgiving for any infraction in quality of care, however minor. Many disciplinary actions are the result of poor relationships with either coworkers or colleagues, not poor medical care.

4. Don’t isolate yourself from the medical community.

Stay involved in your physician organizations and participate in the hospital committees. Isolation breeds suspicion. Gone are the days of the brilliant loner physician who gains recognition on the sheer strength of his own ideas. Staying in the community with your colleagues reduces the risk of unnecessary criticism, gives evidence that your practice is compatible with others’ and offers an opportunity to exchange information and stay informed.

5. Practice within the community standard.

This may sound obvious, but there are those who think they are above the standard. Unless other physicians are persuaded this practice is superior, physicians who practice differently, no matter how pure their motivation, risk discipline.

6. Keep good medical records.

The burden is on the physician to demonstrate medical indications for treatment and prescriptions. Adequate documentation is essential evidence to demonstrate medical indication. Without it, the physician’s care may be misinterpreted by medical experts who review his records or distorted by poor memories or hostile motives of former patients.

7. Bill carefully and conservatively.

Insurance fraud is the kiss of death. Simple errors in billing by improperly supervised subordinates can balloon into enormous legal battles. Supervise well-trained staff and randomly check billing procedures to make sure they are in compliance with your requirements.

Generally, the sooner a cancer patient obtains competent medical care, the better the outcome. The same can be said, as a general rule, for the physician’s career once disciplinary action has been initiated. Disciplinary actions should be handled by an attorney experienced in Administrative law. The forum and procedures in administrative hearings are different from those in civil court. It is not wise to turn over an administrative case to a business or estate attorney no matter how trusted. An attorney with inadequate experience in administrative matters can ruin a physician’s career.

Obtaining representation early in the investigation may resolve the action and minimize legal costs. There’s a saying in law, "Pay me now or pay me later, and I’d prefer you pay me later." It costs less for legal representation when the problems are small. Once the problem has grown, so have the legal expenses to resolve it.

The strategy during an investigation is to provide accurate information to the Medical Board so the investigation can be closed. However, the Medical Board should not have free access to all information they request. Only information relevant to the complaint should be provided. A physician should never speak to the Medical Board without counsel. With legal assistance, it’s important to provide an accurate, legally persuasive response to the consumer complaint for the file. This response may assist the attorney general in correctly assessing the weakness of the case before filing an accusation.

Discipline has a domino effect on the physician’s career. This is because of the intricate web of federal and state reporting requirements and querying mandates. If the Medical Board investigates or brings an Accusation against a physician, he may have to report this to the HMOs, PPOs, etc. with whom he contracts. Depending on the terms of their contract with him, they may terminate his participation or suspend action until a resolution of the matter. Hospital applications for appointment or reappointment of privileges require disclosure of a Medical Board action. The National Practitioner Data Bank requires a report of any Adverse Licensure Actions. Malpractice carriers must be notified. All these notifications can result in further restrictions on the physician’s practice. If a physician is licensed in another state, disciplinary action will usually be initiated in that state if the Medical Board of California disciplined the physician in California.

In conclusion, physicians need to be alert to the increase in disciplinary actions brought against California physicians. Given the impact on the physician’s career, it is wise to take all means possible to prevent discipline. However, once discipline has been instituted, it is imperative to obtain competent representation as early as possible to minimize its impact.

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Although we publish this article in Sacramento Medicine in November 1994, the issues are still relevant today.]

It’s common in medicine that asking 10 doctors for an opinion on medical care will result in at least five different suggestions. Someone commented that if you asked the same 10 doctors a week or two later, you might get five new and different opinions. There are no universally agreed-upon indications for a number of operations, and even if there is a general agreement, the criteria change from time to time. Validated criteria are rare.

It is precisely in this environment that Peer Review occurs. With such lack of medical agreement, it is not surprising that Peer Review is often a contest of opinions. Unfortunately, it often has severe effects on a doctor’s career. An adverse Peer Review action is far more serious than a large malpractice judgment.

The process has several sources for serious bias. First, doctors on the same staff act as a jury in the case of another physician about whom they may have "heard" a great deal. Those bringing the charges often have enough influence within a hospital that finding against their view may be like committing hari-kari.

Second, the entity involved, usually the hospital or its medical staff, appoints the hearing officer. This person often does regular work for the entity, has a very warm feeling toward it, is compensated handsomely, and wants future hospital business.

Third, hearsay evidence is allowed. Opinions, operating room gossip, staff lounge hearsay, and other "facts" that cannot be substantiated, are treated as "legal" facts.

Fourth, there is no ability to overcome a hospital’s refusal to provide supporting evidence. There are no subpoena powers to compare the habits and results of colleagues (PEERS) not under review with the doctor who is.

Fifth, the reasons for the hearing do not have to be specific. The Peer Review letters may be as nonspecific as "concerns have been expressed" rather than a specific order being questioned.

In summary, one may be faced with a jury elected by one’s accuser, a judge selected by the accuser, access to data held by the accuser is denied, opinions expressed are controversial rather than validated facts, and the charges are vague. Webster defines a mock court in which principles of law and justice are perverted with irresponsible or irregular procedures as a "kangaroo court."

This may be our best and possibly only modem example.

Contrast this process with a malpractice trial. The jury is selected by a neutral court from strangers. The judge is not selected by either party. No hearsay evidence is allowed. Both sides have a right to discovery and subpoena powers exist. There is a sincere effort to determine community standards, to compare with colleagues (PEERS). And critically, the charges are very specific.

Our forefathers formed the Constitution and Bill of Rights when this was not generally accepted throughout the world. After two centuries, the primary exception to those rights may be more than 1,000 doctors who have been expelled from a medical staff without due process, many for trivial reasons, and who were not allowed to face their accusers. In our own dealings with more than 400 doctors, we have found suspensions that were precipitated by a surgeon standing on the patient’s left doing a cholecystectomy when the Chief of Surgery favored the right, by a vascular surgeon with excellent results but doing it in a technically different manner, by doctors not doing a newly selected number of cases when their experience already exceeded the reviewer’s number of similar cases. Fortunately, the federal courts are not allowing physician immunity in bypassing standard legal procedures. In one, they reversed "143 cases of substandard care" that were found to be exemplary.

When we won our own biased Peer Review thanks to Rose Bird, who still felt doctors should have the same rights as other citizens - we set out to help our colleagues in distress by forming the Semmelweis society. Our namesake, Dr. Ignaz Philipp Semmelweis (1818-1865) has been hailed as the savior of mothers. After his MD from Vienna in 1844, he received an appointment at the obstetric clinic in Vienna. He noted maternal mortality was at 25-30%. He also noted that the first division of the clinic run by medical students had a death rate 2-3 times as high as the second division run by midwives. He also noted the medical students came from the dissecting room to the maternity ward. He ordered the students to wash their hands in a solution of chlorinated lime before each examination. The maternal mortality dropped to nearly one percent and by 1848 no women died in childbirth in his division. He lost his appointment the following year, presumably for political reasons, was unable to obtain a teaching appointment, and on appeal was granted an appointment with unacceptable restrictions. He then went to St. Rochus Hospital in the city of Pest and reduced the epidemic of puerperal fever to 0.85 percent. The rate in Vienna was still 10-15 percent. Although far ahead of his peers, he was not accepted by them.

Seeing a modem corollary to our peer review system, we named our society after Dr. Semmelweis as model. All we ask is that peer review be done with "clean hands." We request that doctors not be second class citizens but have the same rights as found in a malpractice trial. An adverse peer review often leads to progressive expulsion from all hospital staffs. This domino effect is based on an "extended liability" concept that allows a flawed peer review at only one hospital, to be used as the sole reason for expulsion at all hospitals. Now with the National Data Bank, a flawed peer review decision will have a domino effect in every state, essentially terminating a medical career.

We’ve had experience in Sacramento when a number of doctors were facing peer review because of prior adverse action in one of the two hospitals that were merging. I understand that most of these doctors had their hospital practices terminated. In the one that I assisted in, the board member, who was playing the "judge," opened the "trial" by stating, "We are here to affirm the decision of the medical executive committee." There was no discernable attempt to hear both sides of the issue and render an informed opinion. I also understand the adversary physician bringing the charges was an employee of the hospital foundation. His vote was obviously in the bag.

The profession of medicine is under attack. No one is safe from peer review abuse. Currently, one in 20 doctors will be peer reviewed. One in five will serve on such a committee. In addition to our 400 members, we have had communications and conversations with more than 1,000 physicians, many serving on such a committee. They felt uncomfortable about voting separately from the vocal elements on the committee, which frequently were a minority, but which then mustered a majority. Contract physicians will often be asked to serve on the review committee for their contract are then at risk without peer review rights.

Hospitals are using peer review as the tool to serve their business interests. Ethical and excellent medical practice can be at risk. The Semmelweis is aware of improper view of physicians secure in high positions as department chairmen and chiefs of staff, with excellent credentials, who subsequently fell out of favor. In our experience, well over 50 percent of peer review is biased.

This hearing process is expensive, averaging $75–100,000 if you win. If you lose and want to take it to federal court, it will cost a third to half a million. Few can afford to clear their name. Those who can still may face financial ruin. Those who bring the charges spend no money and are given immunity even if biased. No wonder that many physicians quietly leave and some even obtain nonprofessional type of employment.

We need to draw together behind Constitutional guarantees with No Immunity for biased Peer Reviewers and establish by-laws with appropriate legal representation at all times. Splitting into warring camps plays into the hands of hospitals, insurance, and government interests attacking quality medicine and surgery. Let’s look beyond turf before it’s too late.

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[From the Directors of the Semmelweis Society, A version of this article appeared in the American Journal of Surgery and in Sacramento Medicine and is used with permission. Although Dr Waite wrote this article, and we published it in November 1994, the issues may not have changed significantly.]