The Risk Solutions Magazine Summer 2015

WHATS NEXT
IN PATIENT
SAFETY

OUTPATIENT
RISKS

OUTPATIENT
RISKS

OUTPATIENT RISKS

A growing number of providers at outpatient treatment

locations are finding value in formalized peer review processes.

PEERIN
INWARD

Were a clinic. We dont need

to do peer reviews. Thats been
the prevailing attitude of clinic
administrators and practitioners
for many years. But its a mindset
thats beginning to change.
The reason? The litigation
landscape is expanding to
include parties previously
ignored by those seeking legal
compensation for adverse
medical outcomes.
Increasingly, more people
in more places are being held
liable, and that includes clinics,
says David Glaser, an attorney
at Minnesota-based law firm
Fredrikson & Byron. Glaser has
noticed an increasing number
of clinics implementing peer
review processes. Some of
the larger practices might even
have a full-time risk manager or
quality assurance manager, who
might work proactively with data
mining to examine disparate
practice patterns, he says.

18 / Brink / Summer 2015

The goal: improving quality

According to the American
Medical Association, medical
peer reviews exist to promote
the highest quality of medical
care, as well as patient safety.
Glaser says everyone involved
in a peer review should begin
with the understanding that the
process is intended to improve
overall organizational quality
within the clinic. And while
a peer review can become
emotionally charged, Glaser
says that having an established
methodology in place will
ultimately be helpful.
If youre following a
procedure for peer review
thats already established,
that process can facilitate
some awkward but necessary
conversations, he says.
Be aware of state laws
One common misconception
is that there is protection to
prevent embarrassment by
those who might offer criticism

of a colleague during a peer

review. Thats simply not the
case, Glaser says.
Most laws allow the reviewed
practitioner access to the
data, he explains. What laws
are designed to prevent is the
disclosure of information to a
patient who could use critical
comments as evidence. There
is some protection against a
defamation claim, as long as
the statement is made in
good faith, but the statement
wont be a secret from the
subject physician.
In addition, while some call
peer review a privilege, it is
perhaps better described as
a protection. A privilege can
generally be waived. In many
states, it is a crime to disclose
peer review data, so it is not like
many other privileges under
the law.
Glaser also says that state
laws vary widely and can
be difficult to interpret. Its
important to remember they

were written by members of the

legislature, not by doctors, he
says. These laws typically have
highly technical requirements,
and they generally protect only
deliberations and documents
created by the process. And they
may or may not allow medical
boards access to data for
example, Kansas, Wisconsin and
South Dakota explicitly allow
board access.
Even the membership of
review committees is sometimes
dictated by state law. For
example, in South Dakota, in a
hospital, you can have a peer
review committee consist of
physicians or administrators, or
both, Glaser says. In a clinic,
the committee can only consist
of physicians. But in Minnesota,
its OK to have administrators on
a clinic committee.

NG
Intellectual consistency
While Glaser feels that most
reviews should be an internal
process, he suggests there
may be times when an outside
evaluator is helpful, especially if
litigation or employment action
is being considered. You can
hire a doctor as an independent
reviewer, but make sure its
someone who doesnt know any
of the players involved and has
no allies in the organization,
Glaser says.
And its important to review
your review in every peer review
that is conducted. You need to
ask yourselves if youre being
fair and intellectually consistent,
he says. You must ensure
youre treating all practitioners
equally. For example, if you fire
a physician and dont report it
to the state medical board, that
doctor could come back and
claim the termination was for
another reason, perhaps one
in which he or she receives
legal protection, such as age
or gender. If you didnt make

a report to the state medical

board initially, its a lot harder to
go back and say the firing was
really about quality of care.
Reviewers should familiarize
themselves with mandatory
reporting obligations to their
state medical board, the
National Practitioner Data Bank
(NPDB), insurers, accountable
care organizations (ACOs)
and others. Furthermore,
Glaser urges everyone to
keep an open mind during a
peer review. Remaining open
to all possibilities, including
non-payment for adverse
events, will likely increase the
value of the candid discussions
that occur within the process,
he says.
Well worth the effort
Even though conducting
peer reviews can add to
administrative tasks, taking
away time from clinic activity
and causing occasional conflict
or awkwardness among
colleagues, Glaser is still a

First-century
peer review
The first documented
description of peer
review is in the Ethics of
the Physician, written by
Ishap bin Ali al-Rahawi,
a Syrian physician who
lived from 854931
A.D. The first-century
physician encouraged
the creation of duplicate
notes during patient
consultations, and those
notes were reviewed by
a local medical council of
other physicians. If their
review was negative, the
practicing physician could
face a lawsuit from a
maltreated patient.

Starting a peer
review process?
Consider these questions:
//

//

//

//

Source: Ray Spier. The history of

the peer-review process. Trends
in Biotechnology. 2002;20(8):
357-358.
//

//

Will you wait until

there is an adverse
clinic incident, or will
you conduct peer
reviews randomly?
When will you use a
summary suspension?
What is your definition
of an investigation?
Remember,
resignation during an
investigation may
be reportable.
Will you use peer
review for your
hiring process?
For evaluating a
new employee? For
behavioral issues?
When will you tell the
subject that he or she
is under review?
Who will conduct
the investigation?

proponent of the process.

Its an excellent tool as part
of overall risk management,
he says. Having regular peer
reviews is a good idea, for the
simple reason that we all learn
from our mistakes, and we
all need to engage in healthy
self-examination if were going
to get better.
JULIE KENDRICK
is a freelance writer in
Minneapolis, Minn.

Brink / Summer 2015 / 19