iMechanica - open access - Comments

I think it is not unsolvable problem.

Roozbeh Sanaei — Tue, 22 Jul 2008 01:39:00 -0400

This problem can be solved by giving some sort of credit to people who contribute to Science 2.0 mostly those who contribute to "WIKI-STYLE PAPERS".

Re: Science 2.0 or The Future of SCience

Biswajit Banerjee — Tue, 22 Jul 2008 00:30:00 -0400

Backreaction pointed me an excellent article by Michael Nielsen called The Future of Science.

I think it's worth a read.

Some quotes:

"The Newton-Leibniz controversy over who invented calculus occurred because Newton claimed to have invented calculus in the 1660s and 1670s, but didn’t publish until 1693. In the meantime, Leibniz developed and published his own version of calculus. Imagine modern biology if the human genome had been announced as an anagram, or if
publication had been delayed thirty years."

"The adoption and growth of the scientific journal system has created a body of shared knowledge for our civilization, a collective long-term memory which is the basis for much of human progress. This system has changed surprisingly little in the last 300 years. The internet offers us the first major opportunity to improve this collective long-term
memory, and to create a collective short-term working memory, a conversational commons for the rapid collaborative development of ideas. The process of scientific discovery - how we do science - will change more over the next 20 years than in the past 300 years."

"Science is an example par excellence of creative collaboration, yet scientific collaboration still takes place mainly via face-to-face meetings. With the exception of email, few of the new social tools have been broadly adopted by scientists, even though it is these tools which have the greatest potential to improve how science is done.

Why have scientists been so slow to adopt these remarkable tools? Is
it simply that they are too conservative in their habits, or that the new tools are no better than what we already have? Both these glib answers are wrong. We’ll resolve this puzzle by looking in detail at two examples where excellent online tools have failed to be
adopted by scientists. What we’ll find is that there are major cultural barriers which are preventing scientists from getting involved, and so slowing down the progress of science."

And of particular interest to iMechanica

"The problem all these sites have is that while thoughtful commentary on scientific papers is certainly useful for other scientists, there are few incentives for people to write such comments. Why write a comment when you could be doing something more “useful”, like writing a paper or a grant? Furthermore, if you publicly criticize someone’s paper, there’s a chance that that person may be an anonymous referee in a
position to scuttle your next paper or grant application.

To grasp the mindset here, you need to understand the monklike intensity that ambitious young scientists bring to the pursuit of scientific publications and grants. To get a position at a major University the most important thing is an impressive record of scientific papers. These papers will bring in the research grants and letters of recommendation necessary to be hired. Competition for positions is so fierce that 80 hour plus work weeks are common. The pace relaxes after tenure, but continued grant support still requires a strong work ethic. It’s no wonder people have little inclination to contribute to the online comment sites."

-- Biswajit

however, I tried the matlab script and was not able to run it

Mike Ciavarella — Wed, 09 Jul 2008 11:45:01 -0400

on matlab version 7.0 it works but gives hindex=0 neither on 7.1 "internet connection failed" --- I will try on version 6.5 ....

I don't know, the best I can do is study the 4 codes I suggested

Mike Ciavarella — Wed, 09 Jul 2008 10:00:30 -0400

michele ciavarella
www.micheleciavarella.it

How can i access to scholar.google.com in my code?

RoozbehSanaei — Wed, 09 Jul 2008 08:40:58 -0400

I am going to develop something better based on more strict mathematical models. how can i access to scholar.google.com in a code?

citation diagram is only better than number of papers.

RoozbehSanaei — Wed, 09 Jul 2008 07:13:38 -0400

blank_page

in middle east people use number of papers which is
redicolous. authors change their papers and send them to many journals to
getting acceptance. citation is very better in that position.

even if we want to use bibliometric data to evaluate
quality there are many ways more rational than citation. graphs are developed to
model such systems.

for a constant number of citations, h factor is maximum when
citations diagram be near a -45 deg line.

in many disciplines and research systems it is like that and in
many other it is not. it may be suitable for you and unsuitable for
many others (50%-50%).

it also depends on taste, do you prefer 3 papers with
120 citation or 8 papers with 30 citation! which is better?.it depends on policy of institute.

if we want to rely on citation metrics available in
scholar.google.com!

then normalization of citation diagram with a function
of time is better.

we put our photograph in imechanica by 100 kb file, how we want to show all of efforts of one person with a single number between 0-100000? use rar?

Roozbeh try to automatize h-index

Mike Ciavarella — Wed, 09 Jul 2008 06:07:23 -0400

Rozzbeh

you spend a lot of energy in this question of measuring quality. I am worried that you could use the same energy to write papers to improve your career, be careful ....

Anyway, h-index is quite good, and you could for example invent some automatic script to do the entire imechanica. Check these for Google Scholar which is a little less precise than ISI but still an indication

http://quadsearch.csd.auth.gr/index.php?lan=1&s=2

http://www.mathworks.com/matlabcentral/fileexchange/loadFile.do?objectId=9710&objectType=file

http://hview.limsi.fr/

Quality Factors should change after a while.

RoozbehSanaei — Tue, 08 Jul 2008 13:30:49 -0400

Every Quality factor measures quality good at first. but people learn how to crack it after a while. For example publishing a paper was a good quality measure at first. people thaught they should do something valuable, when they wanted to publish a paper but then they learnt they can publish a paper more easily. even they invented a software to publish papers. they can change some parameters and publish many new papers, they could use their relations to publish a paper. citation was also good for the first time, authors tried to do valuable works to get citations and many of them do it know. there exists many highly cited papers with very good quality, but after a while they found they can do something in a crowded area and get citation even more. or using special keywords and exciting presentation and do many other things more influential than quality. new filters should be found now.even if we invent a new filter i am sure people will learn how to crack it, it is just a virus and antivirus game. (of course many of these dont happen intentionally. people just adapt themselves with system to do things more easily)

Italy goes to true way!

RoozbehSanaei — Tue, 08 Jul 2008 05:23:52 -0400

I am sure that citation is better methodology than "Number of papers" or "Name of University" but it still has problems.

Well, in Italy we still are behind: not using much peer review!!

Mike Ciavarella — Mon, 07 Jul 2008 01:09:07 -0400

A movement to improve Peer Review in Italy and the relative Forum

michele ciavarella
www.micheleciavarella.it

Have you any idea to measure quality better?

RoozbehSanaei — Mon, 07 Jul 2008 00:59:36 -0400

In fact most of researchers know disadvantages of peer review and also citation system. many of them have papers with lower quality published in journals with better impact factor. and also with more citation.

but there is no alternative way for qualifying papers and authors, people are tired of using number of papers and when someone suggested the "citation" and "impact factor" everybody interested. many authors know it is too misleading. but now we need a way to measure quaility better . have you any idea?

The Sixth International Congress on Peer Review and ..

Mike Ciavarella — Sun, 06 Jul 2008 15:49:53 -0400

http://www.ama-assn.org/public/peer/peerhome.htm

The Sixth International Congress on Peer Review and Biomedical Publication will be held September 10-12, 2009 in Vancouver

Peer Review Congress

Photos courtesy of Tourism Vancouver

The
Sixth International Congress on Peer Review and Biomedical Publication
will be held September 10-12, 2009 in Vancouver. As with the previous
Congresses, our aim will be to improve the quality and credibility of
biomedical peer review and publication and to help advance the
efficiency, effectiveness, and equitability of the dissemination of
biomedical information throughout the world.

See the Call for Research and formal announcement for more information about the Sixth Peer Review Congress.

Start your research now! See Suggested Research Topics and Previous Congresses for examples of previously presented research.

Updated June 2008.

and a related one on "sham peer review"

Mike Ciavarella — Sun, 06 Jul 2008 13:21:51 -0400

Sham peer review
From Wikipedia, the free encyclopedia

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Sham peer review or malicious peer review, a concept explained by Roland Chalifoux in Medscape General Medicine, is the practice of using a medical peer review process to remove a doctor who is seen to be disruptive, too great an advocate for change, or competitive with other doctors within the same institution.[1] While technically sham peer review is a concept that applies to every discipline, it has most commonly been applied to the healthcare industry recently.

In healthcare, the lines between peer review of physicians and performance appraisal
by non-peers has been blurred. Administrators, nurses, and even
patients play a role in performance appraisals, while peer review is a
system that is only supposed to involve the physicians themselves.

Scientific peer review has traditionally been held to be achievable
only when research and investigations are able to be examined openly.
Medical peer review, in contrast, is protected from open examination by
rules of confidentiality. In this way it also diverges from true peer
review.

Contents
[hide]

[edit] Sham peer review in medicine

In 2005 and 2006, sham peer review was a subject of some controversy in medical circles in the United States.

In some instances, the staff of a poorly functioning hospital may
attempt to blame an individual physician for system failures. Such
system failures are now believed to be widespread in healthcare.

A 2006 New England Journal of Medicine article notes that
"patient-safety experts stress that complex, error-prone systems are at
the root of most mistakes in health care. Archaic, poorly designed
systems often undermine the best efforts of well-intentioned, highly
motivated clinicians and health care personnel to provide safe care. A
major goal of contemporary patient-safety programs is to encourage a
culture of safety and create a blame-free environment in which errors
are seen as a by-product of bad systems, not as caused by bad or
incompetent people. This orientation toward improving systems rather
than blaming people who make mistakes is critical, since it encourages
caregivers to report adverse events and near misses that might be
preventable in the future."[2][3]

In addition to shifting blame to an individual physician for actual system failures, hospitals also attempt to blame physicians for potential
system failures (that have come under scrutiny). In the latter
situation, "errors" are cited which have no associated adverse
outcomes. Such a practice is a scientifically unvalidated premise for
peer review action and has been questioned.[4]
In both situations, scapegoating is the reason for the sham peer
review. This situation appears to be an outgrowth of the legally
contentious atmosphere of healthcare in the 21st century.

Physicians who point out true (or potential) system failures in
healthcare institutions, either from within the institution or to
external evaluators, have been labeled as whistleblowers.

Lawrence R. Huntoon, chairman of the Association of American Physicians and Surgeons
Committee to Combat Sham Peer Review, states that sham peer review is a
tactic that is being increasingly employed as a retaliation against
physicians whom the hospital regards to be whistleblowers. He
distinguishes sham peer review, or "peer review done in bad faith for some purpose other than the furtherance of quality care", from good-faith peer review, or "peer review done in furtherance of the goal of improving the quality of care."[5]

[edit] Sociological analogies

Westhues, Professor of Sociology at the University of Waterloo, describes sham peer review as a special case of workplace mobbing.
Physicians identified the organizational pathology in healthcare and
noted the similarity to workplace mobbing in other fields. Westhues
notes six major parallels between sham peer review of "disruptive
physicians" (in the medical profession) and the academic mobbing of
"difficult professors" in universities.[6]

[edit] Legal basis for sham peer review

Both Chalifoux and Huntoon attribute the ease by which sham peer review can be applied to an unintended side-effect of the Healthcare Quality Improvement Act (HCQIA) of 1986, which grants nearly absolute immunity from liability to doctors who participate in peer reviews.

This immunity extends to fact finding and investigative activities
as well as to any associated peer review hearing whether or not it
leads to a disciplinary (or other) action.[7] [8]

In California, a "peer review body" is defined in Business and Professions Code 805[9]
to include not only the medical or professional staff of a healthcare
institution, but also a health care service plan, a disability insurer,
a local non-profit medical or professional society, and any ad hoc
committee organized for the purpose of peer review by any entity with at least 25 licentiates.

In Oregon (ORS 41.675), the definition of a peer review body is even
broader, and includes "tissue committees, governing bodies or
committees including medical staff committees of a [licensed] health
care facility ... or any other medical group in connection with bona
fide medical research, quality assurance, utilization review,
credentialing, education, training, supervision or discipline of
physicians or other health care providers."[10]

California has imposed fines of $100,000 to any peer review body
that does not report an action to the medical board (an "805 report").
Complete civil and criminal immunity is afforded any person making an
805 report (BPC 805(j)).

The California legislature
recognized the possibility for abuse of an absolute immunity, however,
and left an opportunity for legal review of peer review committee
decisions through the court system. It framed its statutes so as to
allow "aggrieved physicians the opportunity to prove that the peer
review to which they were subject was in fact carried out for improper
purposes, i.e., for purposes unrelated to assuring quality care or
patient safety".[11] These statutes allow that a peer review can be found in court (by an administrative mandate, CA CCP 1085)[12]
to have been improper due to bad faith or malice, in which case the
peer reviewers' immunities from civil liability "fall by the wayside".[11]
Nevertheless, such cases filed by aggrieved physician prior to the
conclusion of the judicial peer review hearing have been labeled as SLAPP
suits. California has a law against SLAPP suits that has been held to
apply to the medical peer review setting. Therefore, physicians are not
allowed to file suits against peer review participants unless they
first exhaust the peer review process completely (including the
judicial peer review hearing and any appeals process within the
hospital).[13][14]

Although California BP&C 809(a)(7) specified an intent that peer
review progress expediently, this is frequently circumvented in sham
peer review, by legal maneuvering. The fairness of a peer review
judicial review hearing that has been unduly delayed has been called
into question,[15] and many medical staff laws specify guidelines for the timeliness of peer review, in compliance with JCAHO
standards. Nevertheless, HCQIA procedural standards for peer review are
less stringent than that of JCAHO, and the immunity granted by HCQIA
has prevented attempts at redress for ignoring timeliness of peer
review proceedings at the federal level in an anti-trust case (Austin
v. McNamara)[1]

No decision has yet been made whether HCQIA affords immunity when
the written intent (regarding timeliness of peer review) of California
statutes is violated.

[edit] The Kibler case

In the July 2006 California Supreme Court decision in Kibler v.
Northern Inyo County Local Hospital District, Inc., that because peer
review proceedings were reviewable by administrative mandate under
B&PC 809.8,[9] they were therefore meant to constitute an "official proceeding authorized by law."[16]

They further noted that under B&PC 809(a)(5) " '[p]eer review,
fairly conducted, will aid the appropriate state licensing boards in
their responsibility to regulate and discipline errant healing arts
practitioners.' Because a hospital's disciplinary action may lead to
restrictions on the disciplined physician's license to practice or to
the loss of that license, its peer review procedure plays a significant
role in protecting the public against incompetent, impaired, or
negligent physicians. (See Arnett, supra, 14 Cal.4th at pp. 7, 11, 56
Cal.Rptr.2d 706, 923 P.2d 1.)"

This interpretation implies that the peer review process, as an
extension of the function of a medical board, may be subject to all the
restrictions to which a medical board is subject. Because medical
boards are usually subject to a large number of legislative regulations
to which peer review proceedings have not historically been subject,
this may be a new, additional, and appropriate significant legal burden
on the peer review process.

States have recently refined the criteria concerning medical board
reviews, regarding expert witnesses, publishing proceedings and
outcomes, and other procedures. It would be beneficial for peer review
to be bound by the same criteria by which a medical board is bound, if
this Kibler interpretation is upheld.

[edit] Jury model of Medical Peer Review

The medical peer review system is a quasi-judicial one. It is modeled in some ways on the grand jury
/ petit jury system. After a complainant asks for an investigation, a
review body is assembled for fact-finding. This fact-finding body,
called an ad hoc committee, is appointed by the medical Chief
of Staff and is composed of other physician staff members chosen at the
Chief of Staff's discretion. This ad hoc committee then conducts an
investigation in the manner it feels is appropriate. This may include a
review of the literature or an outside expert. In Sham Peer Review
there is often neither.

In sham peer review, the committee is unduly influenced by the complainant,
and members may even have financial or other ties to the complainant.
The degree of willingness to rely on testimony during investigation
instead of evaluating facts (such as chart records, labs, and other
"hard data") is one hallmark of sham peer review.

While JCAHO guidelines recommend use of the literature and relevant
clinical practice guidelines (JCAHO Hospital Accreditation Standards
2003 MS 8 to MS 8.4), there is no such requirement for the hospital
under HCQIA. The definition of "peer" also is so open to broad
interpretation that essentially anyone with an advanced degree can
qualify. For example, a family practitioner can review a trauma case.
In one hospital a family practitioner who had attended an Advanced
Trauma Life Support course (but was not a surgeon) was relied upon for
a peer evaluation. A nurse, who may have no knowledge of the issue
before the committee, may also be relied upon to testify.[1]

The ad hoc committee then reports its findings, in whatever detail
it sees fit, to both the Chief of Staff and to a special meeting of the
Medical Executive Committee (fulfilling the basic functions of a grand
jury). At this point the Medical Executive committee invites the
accused physician to provide input. This chance to provide input is
required by law in many states, but there is no standard of what type
of input may be allowed. Similar to a grand jury, the accused physician
is not allowed counsel to represent him or her at this stage.
Furthermore, the Medical Executive Committee is under no obligation at
this point to allow the physician to present a defense, as this right
is afforded at a formal hearing. In Sham Peer Review, the physician is
usually allowed to present very little, if any, evidence at the Medical
Executive Committee (MEC) meeting.

[edit] Verdict and imposition of sentence prior to a hearing

Although the function of the MEC is similar to a grand jury in some
ways, most grand juries only determine whether there is enough evidence
for indictment and do not have the power to issue an injunction or to mete out a sentence.

In the quasi-legal system of medical peer review, however, the MEC
has the ability to not only review any evidence available and decide
whether a hearing is warranted, but also to summarily impose sanctions against the accused physician, such as a suspension or limitation of privileges. These sanctions constitute an injunction that prevents or limits the accused physician's practice of medicine at that institution.

In a Sham Peer Review these sanctions are usually the maximum
possible, i.e. suspension with recommendation for revocation of
hospital privileges. These sanctions are immediately published
nationally through the National Practitioner Data Bank and through
reports to state medical boards. The effects of the sanctions are
therefore not only local but also statewide and national.

The physician is not allowed counsel to contest such an injunction
at the MEC meeting. In this regard it is an extreme deviation from
generally held principles of justice in the United States.

The stated justification for this is the theory that a physician
potentially poses a greater risk of danger to society than other types
of societal dangers. He or she must immediately be removed from
circulation until conclusively proven not to be a danger. A commonly
stated belief is that there is an equal percentage of criminals in the
medical profession as in other professions. There is very little
evidence to substantiate this claim.

The HCQIA
relieves the peer review from any potential sanctions for this type of
abuse as well, and there is no defined standard of diligence required
prior to any imposition of injunctive sanctions.

Severity of sanctions in sham peer review is in contravention of
California law (BP&C 809(a)(7)) that states "It is the intent of
the Legislature that peer review of professional health care services
be done efficiently, on an ongoing basis, and with an emphasis on early
detection of potential quality problems and resolutions through
informal educational interventions."[9]

[edit] The Fair Hearing process

Once the physician has been indicted (and sanctioned) he or she then has the right to request a hearing. At the hearing, counsel
is allowed. A second independent panel of physicians is chosen as the
petit jury, and a hearing officer is chosen. The accused physician has
the option to demonstrate conflicts of interest and attempt to
disqualify jurors based on reasonable suspicions of bias or conflicts
of interest in a voir dire process.

At the hearing, the plaintiff
is formally the medical staff, of which the medical executive committee
is comprised. In this regard the grand jury and the plaintiff are the
same body. This is also unusual in American justice.

[edit] Potential conflicts of interest between Hospital and Medical Staff

Most medical staff bodies utilize the hospital attorney and accept
hospital funds to try peer review cases. Although the hospital and
medical staff are technically independent entities, this independence
is lost by this arrangement. In Sham Peer Review, the hospital, through
its shared attorney, unduly influences the outcome of the proceeding.
This effectively negates the independence of the medical staff.

Several law firms have made a business around the country promoting
"Strategies and Tactics for Medical Staff Peer Review Disputes." The
largest is Horty, Springer and Mattern, which hold regional conferences
around the country to teach hospitals how to take advantage of the
absolute immunity protections afforded to the peer review process.
Hospital administrators or physicians in positions of power (often
board members) often attend seminars to learn legal techniques to
influence peer review outcomes. Colloquially these have become known as
Horty Springer techniques.[17] These large multi-state law firms, such as Davis, Wright, and Tremaine[18] and Foley and Lardner,[19]
specialize in racketeering and labor disputes and have both attacked
and defended racketeering cases and therefore accumulated extensive
experience in these fields.

The California Medical Association and others have strongly
advocated against this practice and warns medical staffs about its
dangers. California has enacted legislation formally requiring the
separation of the hospital and medical staff.[20]

[edit] Other Sham Peer Review techniques in healthcare

One of the most common techniques, the one used most frequently, is a system of sham "performance appraisal,"
in which a file is created for each member of the hospital staff. Minor
complaints accrue in this file for each physician or nurse on staff.
Many hospitals now encourage a system of complaints against physicians
(and nurses and other hospital personnel). The number of complaints,
rather than the content, are then used as justification for a sham peer
review.

It is usually not very difficult to collect vague and minor
complaints about a large number of physicians and nurses in the
hospital using such a system. The system is often given the euphemism
"suggestion box for quality improvement." In hospitals where there is a
contentious nursing environment, such as an ongoing union dispute,
complaints are very easy to garner.

This practice has been a major source of contention between nurses' unions and hospitals.

Physicians often may not be part of the system as contributors or
reviewers, despite being the target of complaints. A physician (or
nurse) that reaches a threshold number of complaints (which can vary
from hospital to hospital), is labeled a "disruptive physician" (or
"disruptive nurse").

Originally the term "disruptive physician" was used to characterize
an individual who promoted an atmosphere of physical or other fear in
employees of a degree that they would not be able to execute their job.
However, it is now most commonly applied in the context of vague
slights and normal frictions that are normal in a large organization.
These are encouraged to be reported and are then catalogued. (It is
rare to have a truly disruptive physician paralyze the medical staff.)

"Dissatisfaction with a colleague's performance" surveys are
pseudo-quality data are used to justify personnel changes or cutbacks
(in nursing) or to justify a disruptive physician accusation in sham
peer review. As touted in tactics seminars, the more vague the
accusation, the harder it is to disprove.

In recent years, this type of sham performance appraisal, often used
to replace outcomes reviews, has become popular with both
administrators and insurance companies alike. It is used in sham
"pay-for-performance" schemes directed at reducing reimbursements to
physicians or other personnel based on vague pseudo-indicators.
Hospital-based employees, such as hospitalists, anesthesiology groups,
radiologists, emergency departments, and pathologists, are especially
prone to this type of maneuver during salary negotiations or other
contract negotiations.

[edit] The role of independent appraisal systems in sham peer review

In some instances, sham peer review can be independent from physician-run departmental peer review.

A sham peer review may entail multiple complaints to an informal "systems analysis"
committee, run by administration, that is not bound by the regulations
of the Patient Safety Quality Improvement Act of 2005 (see below).
These complaints may be reviewed by administrators, nurses, or
physicians that are part of, or sympathetic to, the administration, and
may not be run through a clinical departmental peer review.

These complaints may then be referred directly to an ad hoc
committee, bypassing departmental peer review. If they are
simultaneously or later also evaluated in departmental peer review,
their conclusions may be contradictory to those determined by
physician-based departmental review.

Complaints from "performance appraisal" review committees (almost
always run by the administration) may also be forwarded to an ad hoc
peer review committee run by a medical staff member sympathetic to the
administration, bypassing normal channels of departmental peer review
as well.

When such charges stemming from this type of review are brought
against a physician bypassing or in contradiction to clinical
departmental peer review, this is almost always a sham peer review.

[edit] Non-binding nature of Fair Hearing

Lastly, while the medical staff is the plaintiff in a peer review
hearing and the Medical Executive Committee serves as grand jury, the
hospital board has final decision whether to accept the results of the
hearing or not. There have been instances in which a fair hearing has
concluded that no merit exists to accusations against a physician, only
to have a board impose penalties anyway. In the most extreme
circumstance, the same physician can be complainant, member of the
medical executive committee, and also a member of the board. This not
entirely uncommon situation is very susceptible to sham peer review and
an unbiased outcome is highly unlikely. Currently there are no checks
and balances against such abuse.

In the case of Mileikowsky v Tenet (which ran Tarzana Hospital in
2000), Mileikowsky was subject to multiple hearings for the same
charges and his rights of an expedited hearing were allegedly denied
while a suspension was in place. On May 15, 2001, the California
Medical Association filed an amicus curiae
brief to emphasize legal protections meant to prevent physicians being
arbitrarily excluded from access to healthcare facilities based on
mechanisms such as summary suspension without a speedy hearing. This
case is still being heard in the California Court of Appeals.[21]

[edit] Whistleblowing and sham peer review

The contention that many physicians are targets of sham peer review due to whistleblowing activities has received significant attention recently. The Sarbanes-Oxley Act
of 2002 was passed at the federal level in response to whistleblowing
in the accounting scandals of major companies such as Enron, Tyco, and
WorldCom.

In 1999, an anesthesiologist in (Yuba City, CA) named Khajavi fought
with a surgeon when he believed an elderly patient should not undergo
cataract surgery. The anesthesiologist was subsequently terminated from
his anesthesia group over the altercation. He sued for wrongful
termination per California B&PC 2056, and the suit was allowed by
the California Court of Appeals, which held in 2000 that a physician
could bring a suit for wongful termination on the basis of advocating
for medically appropriate health care (it did not rule on the merits of
the altercation.)[22]

[edit] Attempts to prevent sham peer review

The Healthcare Quality Improvement Act
of 1986 was initially introduced by a Congressman from Oregon. Nearly
20 years later, the Oregon Medical Association has passed a resolution
to "explore ways and means to prevent misuse of the "Disruptive Doctor
Doctrine," a reference to the label hospitals attach to doctors viewed
as troublemakers, sometimes unfairly.[23]

The Illinois State Medical Society has placed Sham Peer Review and
Sham Privileges Suspension on its legislative agenda for 2007.[21]

In 2006, the Michigan Supreme Court ruled that the Michigan immunity
statutes does not protect the peer review committee if it acts with
malice, specifically meaning that the committee acted with a reckless
disregard of the truth.[24]

Protection from immunity under the federal HCQIA is not absolute. If
a peer review panel is not taken after a reasonable effort to obtain
the facts or if its actions are unreasonably restrictive, then it is
not afforded immunity (Brown v. Presbyterian Healthcare Services, from
the 10th Circuit Court of Appeals.)[25]

The HCQIA avoided establishing good faith standards for peer review, as noted in Austin v. McNamara.[25]

Medical professional organizations have reviewed concepts of medical
error in detail, given the alarmist but inconsistent claims of
widespread error in the healthcare industry by attorneys and consumer
groups. They describe a wide spectrum of medical error, from
insignificant to catastrophic, and note that errors are not all equal
for purposes of peer review.[4]

In New York in 1986, peer review actions were required to be
adjudicated in court to provide an independent forum. At the time, the
AMA objected, because they feared peer review would become inefficient
if tied up in the legal system.

Many other state boards, however, have a system of administrative
review to provide an independent forum to review their peer review
decisions.

Oversight of the peer review process by the Medical Board of
California (through an independent committee) was established by the
California legislature to prevent peer review abuse.(BP&C 805.2)[9]

[edit] The development of the Patient Safety Organization (PSO)

The Patient Safety and Quality Improvement Act of 2005 (Public Law
109-41) allows for the creation of Patient Safety Organizations.
Because of widespread belief that the peer review system had become
corrupted and was not useful for systems failure analysis, these
parallel quality of care committees were authorized to gather
information to be analyzed by hospital administrators, nurses, and
physicians as a tool for systems failure analysis.

They are able to be used by any healthcare entity except insurance companies, but must be registered with the AHRQ wing of the US Department of Health and Human Services.

In these PSOs, root cause analysis and "near misses" are evaluated in an attempt to avert major errors.

As discussed above, the definition of an "error"
or "near miss" is predicated on adverse events, however, and should not
be based on speculation or non-evidence-based, non-standardized
personal opinions of participants of the PSO.[4]
In an attempt to prevent the common situation of introducing personal
bias in systems analysis committees, a Network of Patient Safety
Databases was authorized to which PSO data is to be communicated, so
that individual institutions can compare their statistics to national
averages and thereby avoid personal biases.

In addition, the AHRQ is attempting to assemble clinical guidelines
from peer-reviewed medical journals to be used nationally in an effort
to formalize national treatment standards.

Participants in the use of these PSOs are immune from prosecution in civil, criminal, and administrative hearings.[26]

A potential for sham peer review still exists, however, when a
single physician serves on a systems analysis committee (even if it is
a PSO) and is also the major player in a sham peer review process. The
individual may be the chairman of a department, or the chief of staff
(and therefore gatekeeper of peer review), may also serve on the peer
review committee, and may even be a member of the hospital board.

However, the Patient Safety and Quality Improvement Act
allows for a $10,000 fine to be applied to any individual provider who
allows PSO data to be "admitted in a professional disciplinary
proceeding of a professional disciplinary body established or
specifically authorized under State law."[26] Immunity from civil liability also disappears in the event of such an infraction.

In California and in many states, both the peer review hearing and
the investigation have been held to be part of a professional
disciplinary proceeding, so that the penalty applies in the event of
usage of PSO data in either.

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