Thursday, February 09, 2023

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 Abstract

Excerpted From: Sidney S. Welch and Tricia “Ck” Hoffler, An Epidemic of Racism in Peer Review: Killing Access to Black and Brown Physicians, 16 Journal of Health & Life Sciences Law 42 (2022) (127 Footnotes) (Full Document)

 

WelchHofflerMedicine is not immune to the larger societal ills. The past few years have shined a spotlight on racial inequities, leading the American Public Health Association, Academy of Pediatrics, and the American Medical Association, among others, to publicly declare that racism is a public health crisis and to suggest redress in a myriad of different ways.

Mirroring this national crisis at a focused level, the health law bar and the media have reported a significant increase in the number of adverse medical staff actions against physicians of color--raising a question among some physicians whether this increase is attributable to an increase in medical staff actions motivated by racism or an increase in the number of physicians of color coming forward to challenge some of these actions. Nonetheless, it is a crisis of epidemic proportions and impact, threatening the economic, physical, and mental well-being of African American physicians, often with devastating impacts to the availability of care to many already underserved patients in this country.

[. . .]

To have a better appreciation of today's crisis and its negative consequences, it is critical to understand the context of medical staff membership, clinical privileges, and the impact that the spike in discipline has for affected health care professionals. As a fundamental baseline, medical staff membership and clinical privileges are a critical component of a physician's medical practice if he/she/they requires access to institutional medical facilities to provide medical services, perform procedures, or admit patients to receive medical services. Thus, the grant, denial, or adverse action taken against a physician's medical staff membership and clinical privileges--decisions that are made by committees of the medical staff of a hospital or health system-- have a direct, immediate, and devastating impact on a physician's financial, professional, and mental well-being and, in turn, the well-being of the physician's patients.

To give a better sense of what is at stake, consider the example of Dr. A, an African American physician who resides in a rural but growing community and whose husband is an accomplished physician in his own right. Dr. A and her husband have been active members of the community for over 25 years, where they have built their respective practices, are active in their church, and have raised three children, all of whom have gone on to superior academic achievement in their own fields, including medicine. With an unblemished career in a high-risk specialty, five years ago Dr. A established an outpatient facility to serve a patient population that has clinical needs that neither of the local health systems either identified or met. As Dr. A's outpatient facility started to succeed economically, Dr. A expressed concerns regarding the risk that a gap in specialty coverage and qualified, trained nursing staff at the hospital was creating for high-risk patients in the community; in turn, the hospital's peer review committee initiated a medical staff investigation against Dr. A based on retaliatory nursing staff complaints but did not address the quality-of-care concerns expressed by Dr. A. Other White, male contemporaries were not subject to the same level of scrutiny or abuse. Because of the impact that a report to the National Practitioner Data Bank (NPDB) would have on Dr. A's medical staff membership and privilege, license, participation in insurance plans, etc., Dr. A had no choice but to invest the significant time, money, and emotional capital to participate in the medical staff process triggered by the retaliatory investigation.

Ultimately, Dr. A prevailed with the support of unimpeachable medical experts, but the trauma of the process of having to defend her patient care had far-reaching consequences in terms of rebuilding her practice, which was constrained in the interim, the impact to the continuity of care for her patients, and the severe anxiety she experienced in re-entering the hospital. That anxiety left this otherwise confident, assertive, dedicated physician so emotionally overcome that she could not speak at the hospital, with her physician husband having to communicate for her. Until one has witnessed or experienced the consequences of peer review, the magnitude of this demoralization and the damage to a physician's career may be hard to imagine. Key to driving change in the medical staff process is for all participants in the medical staff process--from hospital administration to the medical staff leadership, members of the peer review committees, and lawyers representing parties in the process--to have a full and complete appreciation of the significant consequences of their decisions and the impact that their biases can have.

These actions are taken as part of a peer review process that is supposed to include certain due process protections for the affected physician. However, because of the subjective nature of peer review and the “metrics” used in such review, the process is too often replete with unconscious bias and economic, racial, and other improper motivations. Hospitals have a vested interest in the quality of care that physicians on their medical staff provide. Under the operating principle that physicians and health care professionals are best qualified to evaluate the quality of medical care, the governing boards of hospitals delegate this responsibility to the medical staff, although they may not abdicate their responsibility entirely. Peer review is one component of that quality assurance. As its name indicates, this self-regulatory review should be conducted by peers of the affected physician with clinical knowledge in the relevant specialty. However, this term arguably should be extended beyond “peer” in the clinical sense to include racial and ethnic peers due to concerns regarding implicit bias and micro and macroaggressions discussed herein.

Indeed, hospitals can be held liable under a theory of negligent credentialing if a patient is harmed as a direct result of the hospital's failure to conduct a reasonably rigorous credentialing process to make sure that the physician is appropriately qualified to provide the allegedly negligent services resulting in harm. Hospitals can take action against a physician's medical staff membership and clinical privileges for a variety of reasons including “disruptive” behavior, quality of care and competency concerns, lack of required certifications or other qualifications designated by the medical staff bylaws or privileges delineation, failure to meet record keeping requirements, unprofessional conduct, and geographic proximity of the physician's residence to the hospital, just to name a few. Too often these reasons are a pretext for racism, and concerns regarding “negligent credentialing” become a crutch to justify actions taken against medical staff that are racially motivated.

An illustrative example of this reality is the example of Dr. B, a young African American specialist with impeccable training and credentials. On the basis of his experience and credentials, he was highly recruited to establish service in his specialty at one of the hospitals within a system that previously did not have this specialty. Within six months of joining the hospital, he was outperforming other specialists located at the system's main campus, which caught the attention of the Department Chair, a White physician, who previously held this distinction. Unbeknownst to Dr. B, prior to his recruitment the health system had a pattern of terminating Black physicians by leveraging quality of care or other similar pretextual concerns. When the Department Chair's economic position was threatened, Dr. B suddenly found himself the subject of a case review and quality-of-care complaints for the very first time, and by his own Department Chair, in a manner inconsistent with his White, male colleagues. This case review led to a proposed corrective action plan, which Dr. B was told he could either accept or find himself subject to disciplinary action. He was told that resignation was not an option without the resignation being reportable to the NPDB, creating a problem for his future credentialing. Dr. B completed all of the requirements of the corrective action plan with only a six-week continued observation remaining when he was terminated from the hospital's physician group without cause, leaving him unable to continue to exercise his clinical privileges at the hospital. Despite the absence of any patient morbidity or mortality in any of the patient cases that were the basis for the corrective action plan or any negative external review of these cases by the hospital; the presence of a favorable external review from a Harvard-trained Black surgical specialist affirming the excellent care provided by Dr. B; a dire physician shortage in the specialty generally and in the throes of COVID; and the absence of any due process for Dr. B, the health system was unwilling to allow Dr. B to complete the remaining six weeks of observation and refused to give Dr. B a “letter of good standing” for future credentialing inquiries. As a direct consequence of the hospital's actions cloaked under the guise of “peer review,” Dr. B, a father of two young children, has spent the past two years as an incredibly well-trained, yet unemployable, surgical specialist who would otherwise be in great demand. He continues to suffer from situational depression as a consequence of these unfounded actions.

This type of racially motivated medical staff exclusion is not novel. In fact, as early as 1958, the Eastern District of North Carolina considered a lawsuit brought by “three Negro doctors for themselves and for other Negro doctors, as a class, for the purpose of obtaining admission to practice medicine at James Walker Memorial Hospital on what is known as the 'Courtesy Staff.”’ Drs. Hubert Eaton, Daniel Roane, and Samuel Gray properly applied but were denied courtesy medical staff membership solely based on their race. These physicians brought suit under the Fourteenth Amendment of the U.S. Constitution, alleging they were denied equal protection of the laws and under federal civil rights statutes. After a decade, they were granted medical staff membership and privileges at the hospital. Yet, a pattern of discrimination and litigation persisted as a result of state and local medical societies' denial of membership to AfricanAmerican physicians. Often membership in these societies or recommendations of other physicians were necessary to be admitted to local hospitals' medical staffs. The societies justified denial of membership to physicians of color because they were not public entities subject to the federal statutes, had the right of self-governance, and could deny membership to anyone. These decisions had a direct impact on training, professional and business development, hospital admitting privileges, board certification, licensure, and advancement of African American physicians in the profession. It was not until four years after the passage of the Civil Rights Act of 1964 that the American Medical Association (AMA) amended its constitution and bylaws to allow its governing body to investigate state/local society discrimination and to expel them from membership in the AMA. For those who have the false impression that this type of discrimination no longer exists, study findings as recently as 2017 show racial disparities in society membership persist, with data showing that White students were selected for membership in the national Alpha Omega Alpha honor society six times more frequently than Black students.

Physicians, irrespective of race, have taken action against the credentialing institution's adverse action on multiple different legal grounds, including claims based upon antitrust laws, economic credentialing, due process under federal and state laws, defamation, and intentional interference with business relationships. Black and Brown physicians have brought claims under federal civil rights statutes, many of which are employment focused such as Title VII of the Civil Rights Act of 1964, creating limitations on those claims as discussed below.

[. . .]

“First, do no harm” is the most often quoted and fundamental precept in the Hippocratic Oath. Although referring to patient care, the intrusion of racism into the peer review process in this country inflicts significant harm to the professional careers, personal lives, health, integrity, and well-being of physicians of color, which in turn results in negative patient outcomes for patients of color, including premature deaths--the ultimate patient harm. “Quality-of-care concerns” are too often code words that are used to mask efforts motivated by economic competition or outright racial animus to damage the careers of physicians of color, perverting the peer review process designed to protect patients into an instrumentality of institutional racism that instead harms patients of color.

In reality, the peer review process in this country that is supposed to protect patients while affording physicians due process protections is fundamentally flawed, outdated, and ill-suited to accomplish those goals, and the participants in peer review are either not equipped to recognize and remedy racism's poisonous intrusion into the process or are unwilling to do so. The HCQIA and the peer review process undoubtedly protect the public from bad actors and physicians who lack the skill and competence to safely treat patients, but regrettably, peer review resources are too often weaponized against physicians of color who do not demonstrate legitimate quality-of-care issues.

To keep the faith with Hippocrates, the medical profession is obligated to respond to this crisis, and we must all do our parts--attorneys, medical professionals, administrators, lawmakers, and regulators. The authors have provided several concrete recommendations of reforms that are first steps towards driving racism from the peer review process, including implementing meaningful unconscious bias training, increasing minority representation in all stages of the peer review process, and revising bylaws, policies, procedures, statutes, and regulations through an equity lens. The time to act is now. The cost of doing nothing is an unknown number of lives unnecessarily lost and too often irretrievably damaged, breaking the basic tenet of the Hippocratic Oath that physicians have been swearing to uphold for 1,750 years and inflicting the utmost harm.


SIDNEY S. WELCH is a health care regulatory attorney with the national law firm, Akerman LLP. Contact her via email at This email address is being protected from spambots. You need JavaScript enabled to view it..

TRICIA “CK” HOFFLER is a seasoned trial lawyer and CEO of the CK Hoffler Firm, a trilingual law firm (English, French, Spanish) based in Atlanta GA. Contact her via email at ckteam @ckhofflerfirm.com.


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