Legal news and tips for employees, by Law Office of Eugene Lee

Whistleblower Doctors are a Rare Breed

Did you know that, under California’s current system, doctors police and regulate themselves? If a doctor’s competence falls under suspicion, under a system called “peer review”, other doctors are expected to report, review and, if necessary, take action against the errant doctor.This probably seemed like a good idea at the time. After all, who better to judge if a doctor is screwing up than other doctors? And doctors probably prefer to police themselves than to have some pesky government agency watch over them.

In reality, the self-policing peer review system has proven to be a failure. For one thing, members of the “old boy’s club” often skate over the peer review system, essentially untouchable. That’s because they or their buddies tend to sit on the peer review committees. Another reason is that peer review often ends up being used as a politically- or economically- motivated weapon against doctors who are on the “outside” or who have fallen out of favor. For instance, doctors who are brave enough to speak up about problems they see often end up on the receiving end of retaliatory peer review proceedings.

A recent study now proves that, given the above, most doctors choose not to rock the boat. According to an article in the Annals of Internal Medicine, a survey of 1,662 physicians showed that nearly 50% declined to report incompetent behavior or medical errors by their peers. Yet nearly 100% of them said they thought such behavior or errors should be reported to the authorities. You can read more about it at modernhealthcare.com (registration required).

It’s time California did away with the peer review system. In a word, it stinks. One way to do that would be to revoke peer review evidentiary privileges. California law currently protects peer review-related documents from disclosure in lawsuits. This was intended to promote the free-flow of dialogue in peer review meetings. However, when peer review is used for improper reasons, this evidentiary privilege effectively bars the victim from the documents needed to win her lawsuit. Getting rid of this privilege would be one way to dismantle the peer review system.

This may sound like a big leap but it isn’t. Federal courts have long declined to recognize a peer review evidentiary privilege. California just needs to follow the federal government’s lead.

For more information about the broken doctor peer review system, visit peerreview.org.

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