The Ability for Hospitals to Hide behind the Immunity of HCQIA and the Abuse and Coercion by the PHP: my story and caveats.
I have been asked to write a guest blog and whole heartedly agreed. I am not afraid to tell my story and indeed, I feel that physicians need to know my story, so they don’t become yet another victim. This story really isn’t any different that a lot of other physician’s experiences. I want to be certain it is understood that my story is two-fold; violation of due process, breach of contract, and a sham peer review on the hospital’s part and a myriad of violations including roughshod disregard for civil liberties, committed by the North Carolina Physicians’ Health Program. Unfortunately, most physicians have no idea about many of the legal aspects that surround our careers, nor do they have any idea the power a hospital or PHP can wield.
In 1986, HCQIA (Health Care Quality Improvement Act) passed into law. On the outside, this act looked like a good thing because it tried to reign in escalating medical malpractice cases, and to protect people from those physicians. Quite generally, it allows physicians to be reviewed by their peers without the threat of civil litigation by the physician being reviewed. There are many points that have to be met in order for a peer review organization to stand behind HCQIA and earn its immunity. Again, unfortunately, because of this immunity, doctors can become the victim of a Sham Peer Review.
Lawyer, Gregory Piché, who has experience representing not only physicians but also hospitals in these matters, has written an excellent book, Sham Peer Review: The Power of Immunity and Abuse of Trust. While the book duly notes that it is very hard for physicians to fight back against a perceived sham peer review, it is not impossible. There are a multitude of reasons why a doctor might be targeted, for example, professional jealousy or competition. In the second chapter of his book he outlines 12 signs that you may be a victim of a sham peer review. I won’t enumerate those here but, they are eye opening. In my story, I was able to check off 10 of the 12 warning signs.
So enough background for now, let’s get on with my personal example. In November 2013, I was accused of misbehavior at the outpatient surgery center associated with Johnston Medical Center (Smithfield, North Carolina). Four staff members, who were kept anonymous from me, accused me of throwing an instrument and later that same day, striking a patient. Heinous behavior. I didn’t recall anything special from the day in question, I still stand by my side of the events. The instrument I was accused of throwing was a retractor. We were doing an arthroscopic case and thus no retractors were being used. All I can guess is that when we converted to an open procedure, I may have gently tossed the arthroscopic cannula onto the back table. The second accusation, again most heinous, was in a large man who was having hand surgery under a Bier block with sedation. He repeatedly moved and fidgeted, at one point sitting bolt upright on the operating table. I forcibly grabbed his wrist, still attached to a lead hand, and placed it firmly on the operating table, making a thudding sound. I certainly did not strike this patient, that violates my personal rules of honor and integrity. Skipping way ahead for a moment, I eventually had a Fair Hearing through the hospital’s administrative remedies, at which time only one of the accusers showed up. She was not a credible witness and in the end stated that the others hadn’t witnessed anything visually.
Mind you, these events supposedly took place in November of 2013. I was not made aware of it until December and didn’t go before the MEC until January. This is where it is very important to know the bylaws or to review them should you find yourself in a similar position. Under the bylaws I was to have been notified in writing and provided with details concerning the accusastion. Yet, I received only a phone call and then was not told any details of the accusations. Additionally, as a first time report, this should have gone to the head of the surgery department, not directly to the MEC. It should have been handled internally. This was the first violation of their bylaws. In North Carolina, failure to follow your bylaws is considered a breach of contract. From this point on they were violating my rights of due process. Because of the violations of their bylaws, due process, and their breach of contract, they have no right to stand behind the immunity of HCQIA. I wish I knew then what I know now. I should have looked at my bylaws and hired counsel before attending a meeting with the MEC. However, I figured that my explanation would ring true with my “peers.” Another mistake. I did ask about having a lawyer present but I was told that would not be allowed, which is probably true under the bylaws, but certainly is another personal violation of representation.
I presented myself to the MEC and gave my side of the story but I was rebuffed. They investigated and told me they believed my accusers, the same accusers that DID NOT show up to my fair hearing eight months later. I was told that I would be “voluntarily required,” an oxymoron, to go the North Carolina Physicians’ Health Program to be evaluated. The oxymoron was explained as such: if they made it required, they would have to immediately report me to the NPDB. However, it was not voluntary in that my privileges were threatened if I didn’t attend. As I was planning to move out of North Carolina within six months, I agreed simply to keep the peace and move on without issue. I was given assurances by the Vice President of Medical Affairs that the evaluation would be kept confidential and that if anything came of the visit, it would be recommendations only. I, like many others, had never heard of the PHP before.
Due to scheduling issues, I was unable to be evaluated until late February, meanwhile still practicing and working out of this hospital; I was covering their ER, performing consults, and bringing them surgical cases (revenue). I presented for my evaluation, confirmatory email in hand, only to be told that I didn’t have an appointment that day and would need to reschedule. Fine, although I was convinced that was a test of my patience something that has been confirmed by others. Again, due to scheduling issues, (travel for interviews, death of a friend, and on call requirements), I didn’t get seen until early April. I was eventually accused, by the hospital, that I was purposefully delaying my evaluation. Much to my amazement, upon presenting, I was told that I would have to have a urine drug screen and that I would have to pay for it! This was not mentioned ahead of time, although the receptionist who had erred with my initial appointment, commented that I had been told. I was also told, by the psychiatrist, that there was no doctor-patient relationship and he could report me to any authorities he saw fit. Despite me signing a release, I feel that without a doctor-patient relationship, he never had the authority to see my subsequent test results. Certainly, an argument can me made about a HIPAA violation on his part. To this point I have had my 5th and 14th Amendment rights violated by the hospital. NCPHP is probably guilty of illegal search and seizure as well as invasion of privacy.
We haven’t even started the evaluation. We began our talk. Not more than 15 minutes into the evaluation, he was trying to strong-arm me in to a contract with the PHP which would follow me to any future state where I might work. I refused, as I had been guaranteed that I was there for recommendations only. I answered all questions voluntarily, wanting to present myself as open and willing, not an “angry person.” I never refused a question, answering some of the most intimate questions possible. During this evaluation, I was never asked the 20 Questions of Johns Hopkins nor the CAGE questions. I was simply asked about consumption of alcohol which I didn’t deny. I have never been accused of coming to work impaired nor have I had any legal issues related to the social use of alcohol.
As the evaluation ended, I was escorted to and joined in the restroom by the psychiatrist, who was present as I provided a sample. Humiliating and violating. I then asked what drugs it tested for; I was told 12 drugs and alcohol. I balked as I had told him that I used alcohol socially. The urine was in his possession and I was told “not to worry about it.” Of course, the test came back positive for ethanol metabolites. As my evaluation was on Friday, the test result was communicated to me on Monday. At this point, the NCPHP recommended to the hospital that I undergo an evaluation for anger management as well as substance abuse. Remember, I had never been accused of impairment and this was a single isolated test. The courses were expensive and out-of-state. I refused anything to do with substance abuse evaluation or monitoring – which required the out-of-state evaluation or six months of draconian monitoring. I was especially concerned about travel restrictions under the monitoring contract as my daughter was getting married back in the Midwest. I was told they couldn’t guarantee that I could travel for her wedding. Obviously, that was a deal breaker.
At this point, I appealed to the hospital, offering to attend local anger counseling for which I would pay and I even offered to undergo urine testing at the hospital. The hospital continued to rebuff my concessions and attempts at coming to an amicable middle-of-the-road solution. I finally hired a lawyer who made it plain that signing a contract with the NCPHP was not a good thing. It was roughly at this time that the State Auditor in North Carolina released her report on the NCPHP. With all of the stories I know, it’s hard to believe that they didn’t find more evidence of malfeasance in reviewing 100 charts. They did find conflict of interest issues and recommended that physicians be allowed to seek their own care. Despite this recommendation, I was not afforded that opportunity. I presented this information to the MEC along with position statements from SAMHSA (they are against use of an isolated positive test and don’t believe the EtG test should be used as the sole forensic test especially when dealing the career of a professional), as well as reports condemning the EtG test (it is not approved by the FDA). Again, I was rebuffed.
In early May, after failing to sign the contract, I was summarily suspended from the hospital. Again, the bylaws were violated as I did not meet any of the definitions for a summary suspension. Why after six months was I suspended summarily? If they were so concerned, I should have been suspended the previous November. After 30 days, by federal mandate, I was reported to the NPDB and subsequently investigated by the NCMB. I was released from my contract at Duke University. Although my license was never suspended, revoked, or restricted, I have been unable to get even a locums job. I have been rejected by at least three hospitals in Iowa. I’m working towards a Texas license but I’m finding that to be quite difficult. The hospital and PHP have continued to hide behind the veil of immunity. The violations of due process and breach of contract cannot be questioned which eliminates that immunity. The bigger concern is violation of civil liberties committed by both institutions.
Interestingly, the NCMB investigated and asked that I seek another evaluation, for anger management, with a counselor. They gave me a short list of providers in Iowa City, where I had relocated with my family. I went to one visit and she found no issues, other than an adjustment disorder stemming from the way I had been treated. I thought one visit rang hollow, so I pretty much begged the counselor to give me some recommendation. She said I could possibly benefit from a course in communication. Again, from a list of their choosing (the NCMB), I completed an at home course that dealt with communication and anger management.
Meanwhile, the hospital continued to hide behind the recommendations of the NCPHP. They would not back down from that. I eventually was given a Fair Hearing. After three nights of testimony in August and September of 2014, I was vindicated. The panel said that there was not enough evidence to have sent me for an evaluation in the first place, making everything following that moot. One of them has called it a witch hunt; a sham peer review. This decision was remanded by the MEC back to the panel who stuck to their initial decision. However, the MEC refused to overturn my suspension, which is allowed according to the bylaws. An appellate review also fell on deaf ears.
I think this story has many take home points. It never hurts to get a lawyer involved, the earlier the better. I firmly believe that had I involved a lawyer in January of 2014, I may never have had to go for an evaluation at the PHP. Know or review your hospital bylaws if you are ever in any situation with a hospital. Although I was given assurances that only recommendations would be made, the hospital hid behind their HCQIA immunity and the PHP, both entities holding my license/privileges over my head. Get everything in writing. Avoid any PHP, unless you feel you truly need their help, voluntarily. Even then, consider an evaluation by a trusted community colleague. The NCPHP is very typical of these organizations throughout the country, its modus operandi is addiction medicine. They base all of their recommendations on the spiritual 12-step program of alcoholics anonymous and the disproven belief that physicians need more intense treatment, junk science as most people call it. Like most of these institutions, they do not treat patients. They evaluate and refer you to an expensive out-of-state course, where you will most likely be entrapped in a prolonged, never ending contract with the PHP. It has been well documented that if you attend a substance abuse evaluation, you will most likely be labeled an abuser, ending up with 90 days of inpatient treatment. Lastly, be aware of the warning signs of a sham peer review, especially if you are just starting in a new position. Physicians are proud and territorial and they are not always “their brother’s keeper.”
I continue to fight for my professional career but the road blocks are enormous. Finding a lawyer to file suit, on a contingency basis, has also been impossible. As physicians, we need to stand up to these inequities. We need to support each other and contemplate the future when we may need to band together in a class action lawsuit. Maybe it’s time the ACLU becomes truly involved and excited about this opportunity.
Daniel Vande Lune, M.D.