Rethinking Peer Review: Detecting and Addressing Medical Malpractice Claims Risk

A medical center department chair has just been notified that a physician in his department, "Dr. G," is being sued for the fifth time in seven years. The CEO of co-defendant hospital wants the chair to solve Dr. G's "claims problems." At the chair's request, the hospital peer review committee evaluates Dr. G's malpractice cases. While committee members note some minor concerns in the cases, they conclude that in each circumstance he has met the standard of care. They cannot identify any specific technical or educational need, nor can they supply justification for a disciplinary action. The chair is in a vexing situation. Is Dr. G. the victim of bad luck, or is something more systematic at work? Is there some failure or deficiency other than technical incompetence which is making this physician vulnerable to malpractice suits? If so, is it remediable? In this Article, we analyze the ability of peer review to recognize and reduce physicians' risk of medical malpractice claims. Critics argue that peer review neither consistently identifies substandard physicians, nor ensures their removal, while it unfairly targets colleagues for reasons such as economic competition. They suggest that the solution may be to modify statutes governing privilege and immunity, or to increase penalties for healthcare institutions that violate reporting statutes. Critics' concerns may be misplaced. We will argue that peer review is not deficient in its basic conception, but rather aspects of its design and implementation which often do not directly link it to an institution's risk management activities. We assert that peer review can effectively identify a physician's risk of generating a disproportionate share of medical malpractice claims ex ante, and present a sample methodology which allows peer review to more effectively help physicians address that risk. Part I of this Article discusses the background and authority for peer review. Part II outlines common criticisms of peer review and discusses shortcomings in these analyses. Part III describes background medical malpractice research and introduces the Patient Advocacy Reporting System ("PARS^sup SM^") program for peer review. In Part IV we conclude with a discussion of programmatic elements which, if incorporated into the legal framework for peer review, may allow peer review committees to systematically evaluate, monitor, and, potentially reduce physicians' medical malpractice claims risk. I. BACKGROUND OF PEER REVIEW A. Traditional Peer Review "Peer review" is a generic term representing a range of processes established by hospitals, medical groups, and other health care entities to ensure qualified and competent medical staff and quality care.3 Three premises underlie traditional peer review. The first premise is that due to their unique and specialized training, only physicians can properly evaluate and judge other physicians' medical practices and detect when colleagues pose a risk to patient care.4 The second premise is that a milieu supporting candid communication is most likely to foster recognition of both exemplary and substandard care.5 The third premise is that peer review participants are motivated to maintain high standards of care in their group or institution and act in good faith.6 The idea of peers reviewing each other as a quality control measure would appear to have several advantages.7 Peer review offers an incentive for similarly trained physicians working in the same environment to identify colleagues with knowledge gaps or deficiencies in technical skills, facilitate their remediation, and monitor their progress and performance, in preference to external parties assuming this responsibility.8 In addition, when serious problems are identified, appropriate steps can be taken to limit doctors' contact with patients well before government agencies are involved or can act.9 Peer review may also lead physicians to seek and accept help for medical, psychiatric, or impairment issues. …