PEER REVIEW IS NOT A LOST CAUSE
The Pressures on the Individual Physician
Facing a summary suspension (meaning an immediate suspension) and watching the 15 day reporting clock tick quickly is an unnerving experience. Negotiation options are usually nuclear. The MEC lawyers rarely budge and the peer review process to clear your name is expensive and fraught with bias favoring the medical staff or hospital. When the 15th day passes — You are Reported to the Medical Board and clearing your name becomes paramount. The Horowitz office moves quickly to present the strongest possible negotiation position. Negotiations focus on resolving the dispute before the 15 day reporting period is triggered. Worst case, a 30 day suspension is reported to the National Practitioner Data Bank. When you need the strongest defense experience counts. Daniel Horowitz has been lead trial lawyer in 1000’s of evidentiary hearings and hundreds of Jury Trials. He is a lecturer and law school professor teaching trial law. His legal team includes a physician/lawyer, an MBA, a former Naval Intelligence officer and other lawyers expert in the courtroom.
An Experienced Defense Lawyer Knows Where to Look for Your Defense
Peer Review requires careful analysis of the micro issues triggering the review. However, it also requires a review of the overall picture, the “Big Picture”. A systematic assessment often determines the outcome. This is particularly true in surgical cases. A proper defense requires a review of the available equipment, pre-surgery assessments, perioperative glycemic controls, staffing including hiring, training and staff assignments, quality review mechanisms and internal reporting, record keeping, hospitalist training and performance. All of these factors affect surgical outcomes and most are outside the control of the surgeon. Peer review decision making must also be assessed to ascertain whether it is imposed and applied with integrity and consistency. Peer Review is often abused but by law it is not to be a mechanism for preferential treatment, biased use and as a business tool. An experienced physician lawyer understands these issues and explores them in each case.
Writ Review of an Adverse Peer Review Decision
California’s Code of Civil Procedure §1085 (CCP 1085) and Code of Civil Procedure §1094.5 (CCP § 1094.5) are the common vehicles for challenging a negative peer review action (CCP 1085) or determination (CCP 1094.5). CCP § 1085 focuses not on the decision process or even fairness. It addresses a very limited scope of non-discretionary core duties that a court or peer review body has failed to perform. In the context of peer review the “court” is the peer review hearing entity (officer and medical staff). Such petitions are disfavored by the courts. The courts prefer that the action play out and finish so that there can be a singular and unified review. Court intervention may be invoked when the fundamental right to a hearing is being wrongfully prevented. However, problems and unfairness in the hearing usually is out of the hands of the Superior Court until the peer review process completes.
CCP § 1094.5 is the procedural vehicle more frequently used in a medical peer review case. After an adverse peer review decision and the exhaustion of internal peer review decision appeals (if any – see the by-laws) § 1094.5 can be used to challenge the overall decision. The 1094.5 writ petition can be based on evidentiary failures, procedural grounds or both.
We Understand the Details and Get “into the weeds”
Our experience on other cases can benefit your case. For example, we are presently litigating a highly contentious case against John Muir Hospital in Walnut Creek, California. The case against John Muir involves our claim that they failed to follow established safety rules regarding the blood sugar levels for surgical patients. We claim that John Muir retaliated against the doctor who advocated for these protocols. This knowledge is then applied to other cases in our office. Defending surgeons facing peer review for high SSI rates raises the issue – who is at fault, the doctor or the hospital. Putting the hospital in the hot seat we have challenged their perioperative protocols. Their lack of a specific (or proper) perioperative glycemic order set raised the core question that protected our client. Did the peer reviewed surgeon cause the high SSI rate or was the hospital the cause ? [As many surgeons know, the SSI infection rate for many surgeries can be doubled by failing to keep blood sugar under control. Recent studies show that POD and POCD may be strongly affected as well. (See Article)] To learn more about the lawsuit that Daniel Horowitz has pending against John Muir hospital, click here. (See Article) So our experience and attention to medical detail can be the difference between winning and losing. Put differently, you get a highly specialized defense from the Horowitz office. Cookie cutter does not exist in your world of excellent medicine and cookie cutter does not exist in our office.
An Attorney Must Have Trial Experience in Order to Have Credibility
There are times that this balanced and reasoned approach does not work. This no option scenario means that a highly trained and proactive trial lawyer must prepare your defense. Your defense is a presentation that demonstrates to a physician peer review panel that you deserve to retain your privileges. Your lawyer must prove that either no discipline or minor discipline is the only honest option.
Personalities and politics rear their ugly heads during the peer review process. Daniel Horowitz as one of the nation’s most experienced trial lawyers. He knows how to focus the attention back to the facts that protect your career.
The peer review hearing is a careful balance and series of choices between all out warfare and a method of presenting the facts and rebuilding relationships. Each case is different and Daniel Horowitz presents a defense that is tailored to your personal needs and expectations. Horowitz assembles a custom team that is experienced in your type of case and with your type of contested issues. You will have confidence that the peer review proceeding is not a lost cause but in fact a “process” by which you start at the bottom and fight your way to the best possible resolution. No guarantees ! But in many cases doctors who believed that their careers were over, have found, through our office, a path back.
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