Peer Review Revisited

Even though it had sailed through the California Legislature with strong support, Gov. George Deukmejian vetoed medical peer-review legislation last autumn and urged further negotiations to produce a law more widely acceptable to the professionals whom it would affect. He did the right thing, and his proposal is being pursued.

This is a complex and difficult subject because of the risks of abuse. On occasion, physicians have used peer review to exclude others who would be competitive. There are glaring examples in which disciplinary action has been delayed because of the unwillingness of some doctors to report incompetence on the part of others. An effective and fair system of peer review is essential to maintaining quality on hospital medical staffs.

California already has in place one of the best peer-review laws in the nation, and it is working reasonably well. Unless a new law is adopted, however, there is a possibility that the provisions of the state law will be preempted by federal rules taking effect next October. Even if the federal law does not preempt state law, it will open the way for unnecessary litigation in the federal courts. The state will benefit from maintaining its own laws, which can be fine-tuned in Sacramento, with disputes settled in state rather than federal courts.

The California Medical Assn., representing most of the state’s doctors, was the prime mover for the legislation that the governor vetoed. The California Assn. of Hospitals and Health Systems, which was officially neutral when the final version of the CMA bill was adopted last fall, is convinced now that existing case and statutory law in California is adequate. But it is open to consultations, and agrees that the effect of the new federal law could pose problems next October. In those circumstances, representatives of both the medical association and the hospitals and health-systems group have agreed to sit down this month and try to work out the kind of consensus urged by the governor. That is a good beginning.

It will serve at least to put aside some misunderstandings that have haunted the medical association’s bill from the start. At least some of the opposition to it has been based on incorrect information. For example, the bill would not, as some opponents have said, mandate that lawyers participate at each stage of peer review. Indeed, lawyers are excluded from initial phases unless hospitals and their medical staffs should make special provision. Many doctors are concerned that professional medical relationships would be broken if each phase of peer review became a legal confrontation. Provisions of the CMA bill for discovery, setting forth what information would have to be provided to the physicians under review, are now being refined to limit the risk that these could be an invitation to what lawyers call fishing expeditions--an uncontrolled search for information. The burden of proof, which rests with the physicians when seeking to join a medical staff but with the medical staff and hospital when seeking to discipline an individual, seems reasonable enough. But those who drafted the earlier legislation acknowledge its extraordinary complexity, and that may be a cause in itself to set sights for clearer and simpler rules.

The key task, it seems to us, is to preserve California’s discretion over this matter. The best way to do that is through compromise among the doctors and hospitals so that a fair system--but a forceful system, with protections against abuse--is the result.