Kangaroo Courts in Surgery Part 2: Sham Peer Review

Sham peer review has been defined as "an adverse action taken in bad faith by a professional review body for some purpose other than the furtherance of quality health care, and that is disguised to look like legitimate peer review."¹

In other words, the process wears the costume of quality assurance while serving an entirely different goal. The idea sounds conspiratorial until you start hearing the stories. What shocked me when I began researching sham peer review was how little the facts seemed to matter once the machinery got moving. This is because of near-complete immunity awarded to hospitals and physician accusers by law.

In 1986, Congress passed the Health Care Quality Improvement Act, or HCQIA. The law was created with a worthy goal: encourage physicians to police themselves and improve patient care through peer review. Lawmakers worried that doctors would be reluctant to participate in peer review if they feared being sued by colleagues who received adverse reviews. So HCQIA offered broad immunity to hospitals and peer review participants, presuming that an adverse action was taken in the reasonable belief it furthered quality care, after a reasonable effort to obtain the facts, with adequate notice and hearing procedures, and in the reasonable belief the action was warranted by those facts.²

Most physicians would hear those four standards and think, of course. But assumptions are not safeguards. Courts evaluating these standards have applied what's called an "objective test," under which the bad-faith motives of a hospital and its peer reviewers, including retaliatory, hostile, malicious, or anticompetitive intent, are considered legally irrelevant.³ In practice, this means a hospital attorney can invoke the words "peer review" and "objective test," and the hospital, along with its bad-faith reviewers, can receive complete immunity, regardless of what actually happened behind closed doors.³

When a process is being conducted in bad faith, the protections intended to encourage honest peer review can become shields for dishonest peer review. By the time a physician proves the allegations were misleading, exaggerated, or entirely false, the damage is already done. Privileges have been suspended, employment has been terminated, reports have been made to the National Practitioner Data Bank (NPDB), and, in some cases, reputations have been completely destroyed.

Dr. Lawrence Huntoon has spent more than two decades running the sham peer review hotline for the American Association of Physicians and Surgeons. After reviewing case after case, he describes a familiar pattern of behavior.

First, a hospital seeks to eliminate a physician for some improper, bad-faith motive: retaliation against a whistleblower, elimination of an economic competitor, or simple animus. The hospital finds a pretext and conducts a sham peer review, where the outcome is predetermined and the facts are beside the point.

From here, the physician faces a fork in the road.

Some leave. Worn down by the vagueness and the gaslighting, they accept a negotiated exit, often with a nondisclosure agreement attached, because fighting feels unwinnable. They walk away feeling ashamed and ostracized, and the silence that follows protects the institution as much as it protects the physician.⁸

Others stay and fight. Then, if the institution’s original complaint holds up, it proceeds to oust the accused physician on that basis. If the complaint is completely fabricated, the charge evolves. Questions about competence become concerns about behavior. Specific allegations become vague ones. The accused physician is labeled "disruptive," "difficult," or "unprofessional."

The problem with these accusations is that they are almost impossible to defend against. How do we prove we're not difficult? How do we prove we're not disruptive? How do we disprove a feeling?

Whichever path the physician takes, the institution usually gets what it wanted from the start. The targeted physician is eliminated from the hospital and reported to the NPDB and state licensing board, sometimes ending a career outright. When the physician later tries to fight back in court, the hospital attorney invokes the words "peer review" and "peer review privilege," obtaining immunity under federal law and sealing off the physician's ability to ever discover what actually happened behind those closed doors.⁴

DARVO (Deny, Attack, and Reverse Victim and Offender) is a term used to describe the calculated defense tactic used by hospital committees and physicians behind sham peer review.^5,6 The perpetrators deny the review is “sham” and falsely claim that it is routine or objective. Then they attack the credibility of the targeted physician, often labeling them “disruptive” or “unstable.” They may solicit biased chart reviews or highlight errors in charting as evidence. Institutional leaders and committee members paint themselves as “victims” of a “uncooperative” physician. The physician who reported the initial injustice is painted as a threat to patient safety, allowing the hospital to strip them of their privileges. Research on DARVO has found that exposure to this pattern is associated with increased self-blame in the person being confronted, and decreased belief in their credibility among observers.⁷

The stories I've heard as a surgeon coach follow a remarkably similar script. A surgeon receives a vague request for a meeting. There is no agenda or explanation, just a mandatory appearance. The surgeon arrives to find administrators and colleagues seated around a conference table. They are told concerns have been raised, but specifics about the concerns remain elusive. They are put on a performance improvement plan. Questions are answered with generalities. The surgeon leaves feeling confused and anxious but determined to cooperate, because surely there has been some misunderstanding.

They tell themselves that innocent people don't need lawyers. Weeks later, anonymous complaints appear. Old incidents are resurrected. Normal human frustrations become evidence. The accused surgeon once used a harsh tone or said "bullshit" in the operating room. They were late to clinic three times. Someone felt intimidated or uncomfortable in their presence. The file grows thicker. The accusations grow vaguer. The defense becomes harder. And ultimately, the accused surgeon is fired.

And the physician victims, conditioned by years of perfectionism and self-scrutiny, ask the wrong question. Instead of asking, "Is this process fair?" they ask, "What did I do wrong?" That question is often the final victory because the system has successfully redirected their attention away from the people wielding power and toward one’s own so-called flaws.

The apparatus doesn't require a true accusation to function. It only requires a group of people in power willing to let the charge transform and colleagues willing to go along with hearsay. There also must be a target who has been trained by the very culture now attacking them to believe that if they were only good enough, none of this would be happening.

While this sounds very bleak, all is not lost. If you suspect you are the subject of a sham peer review, here is what you need to do:

Trust your instincts. If you feel unsafe at work, you probably are. Instead of dismissing that feeling as paranoia, process the anxiety, listen to your intuition, and get a healthcare attorney.

Do not attend meetings without knowing the agenda beforehand. If your state's recording laws permit it, record meetings you attend and retain those recordings securely. If recording is not permitted, document the meeting in writing immediately afterward, including who was present, what was discussed, and any decisions that were made.

Think carefully before resigning during an ongoing investigation. This may result in a report to the NPDB. The only person who can remove that report is the person who submitted it.⁸

Remember that Human Resources represents the interests of the institution, not individual physicians. Before approaching HR or a medical executive committee, consider consulting independent legal counsel so you understand your rights and options. Their job is to protect patients and the institution, not you.⁸

Read and learn your state's medical staff bylaws.

If you are told you won't be allowed an attorney at a peer review proceeding, consider this a sign. Retain an independent lawyer knowledgeable about healthcare law and sham peer review specifically. This is different from a malpractice lawyer.⁸

Expect to face profound gaslighting by leadership and colleagues.

Make copies of all emails and text correspondence.

Contact Physician Just Equity, an organization that provides confidential peer support for physicians navigating workplace conflicts.⁹

Read the work of Dr. Lawrence Huntoon, housed on the Association of American Physicians and Surgeons website.

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References

1. Huntoon, L.R. (2007). Sham Peer Review: The Unjust "Objective Test." Journal of American Physicians and Surgeons, 12(4), 100–101.
2. Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11112(a)(1)-(4).
3. Huntoon, L.R. (2007). Journal of American Physicians and Surgeons, 12(4), 100.
4. Huntoon, L.R. (2007). Journal of American Physicians and Surgeons, 12(4), 100–101.
5. Freyd, J.J. (1997). Violations of power, adaptive blindness, and betrayal trauma theory. Feminism & Psychology, 7, 22-32.
6. Freyd, J.J. "What is DARVO?" Retrieved from jjfreyd.com/darvo.
7. Harsey, S., Zurbriggen, E., & Freyd, J.J. (2017). Perpetrator Responses to Victim Confrontation: DARVO and Victim Self-Blame. Journal of Aggression, Maltreatment, & Trauma, 26, 644-663.
8. O'Connell, T. (2024). Sham peer review (SPR): strategies for saving your career and soul. KevinMD.com, October 13, 2024.
9. Physician Just Equity. Retrieved from physicianjustequity.org