Jewish World Review Feb. 20, 2004 /28 Shevat, 5764

Drs. Michael A. Glueck & Robert J. Cihak

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Consumer Reports


Doctors fighting against doctors, at the behest of the government and lawyers


http://www.NewsAndOpinion.com | We've recently written about threats to your health posed by limits forced on your doctor and the medical care system, mostly levied by lawyers in legislatures and courtrooms more interested in their own profits and power than justice.


There's more. Congress has given great power to hospital administrators and doctors appointed to special hospital "peer review" committees originally set up to review complaints about doctors' work. And hospitals and doctors have used this power to remove competition and foster medical monopolies.


Federal law, specifically The Health Care Quality Improvement Act of 1986 shields these committees and hospitals from accountability. As a result, these committees are essentially little oligarchies holding great power over the future of all the other doctors on the medical staff. And they're behaving like oligarchs, often for their own personal benefit.


A single final report from one of these committees can cause a doctor to be kicked out of a hospital and reported to the National Practitioner Data Bank which then makes the information available to entities that meet the "...explicit statutory requirements for participating in the NPDB...." in other words, another group of selected, elite entities and not the general public.


As related by a series of investigative articles by Steve Twedt, in the Pittsburgh Post-Gazette, "traditional guarantees of due process or even fair play do not necessarily apply." For example, doctors accused of bad behavior typically aren't even told who the accuser is.


"Disruptive behavior" is a favorite charge for getting rid of a competitor, even when the "disruption" amounts to a doctor complaining about poor patient care by the hospital and confirmed by outside professional and government agencies.


This mess is an example of government losing sight of justice in favor of false politically-motivated efficiency. The Health Care Quality Improvement Act of 1986 gave legal immunity to hospitals and peer review committees as long as they could claim a "reasonable belief that the action was in the furtherance of quality health care."


As Twedt writes "And while the law also refers to adequate notice of a hearing, providing an accused doctor with a list of witnesses and giving the doctor a right to question his accusers, those are suggested standards, not requirements. Encino physician Mileikowsky, for example, asked for a meeting with the medical executive committee after his suspension. He said the committee kept him outside the hearing room for an hour while it discussed charges that he had 'exhibited a pattern of disruptive, threatening and noncooperative behavior.' Finally allowed in, he had 30 minutes to rebut accusations he was hearing for the first time."


Because they can't use hospital facilities these doctors can't work and generate income. Some are considering personal bankruptcy or are losing their homes through foreclosure.


When ruling in the hospital's favor, judges sometimes say they don't want to interfere with internal hospital business. In doing so, they admit that they're not very interested in truth and justice, either for patients or doctors.


But the problem goes deeper, and is in fact symptomatic of a totalitarian mindset. It goes like this:


1. Ideologues create a theoretically perfect system later adopted by politicians or dictators or welfare states.


2. The system doesn't work.


3. The system itself can't be questioned.


4. Therefore, scapegoats need to be found and show-trialed.


For American politicians, Medicare isn't working out the way they think it should, with complaints and expenses rising. Therefore, the politicians conclude, doctor-wreckers must be doing it. After all, there are 500 times as many patients as there are doctors, with 500 times as many votes. And it's the government's job to root them out - or to at least "send a message", a al Don Corleone, to doctors.


In the interests of Medicare "system integrity" an unelected few doctors, now typically selected by hospital officials, have Star Chamber powers to punish their competitors and monopolize medical business for themselves. What to do?


  • Restore due process and the priority of the search for truth and justice, as required by the constitution in criminal cases, to civil law and regulations.

  • Allow for the fact that doctors are human too, and do make mistakes.

  • Allow traditional informal peer review to work, such as by referrals and word-of-mouth.


In other words, let's treat patients and doctors as individuals rather than cogs in a government machine.

Editor's Note: Robert J. Cihak wrote this week's column.




Michael Arnold Glueck, M.D., is a multiple award winning writer who comments on medical-legal issues. Robert J. Cihak, M.D., is a Discovery Institute Senior Fellow and a past president of the Association of American Physicians and Surgeons. Both JWR contributors are Harvard trained diagnostic radiologists. Comment by clicking here.

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