This Article starts with a history of the growth of hospital peer review and then examines the merits of the rationales that motivated the passage of the Health Care Quality Improvement Act of 1986 ('HCQIA'), which catapulted peer review into the national system that exists today. The Article next explains how the peer review hearing process works and how HCQIA turns private hospitals into small, individual quasi-regulatory agencies. The Article goes on to critique the 'bad apples' approach taken by hospital peer review in light of the growing body of empirical research that supports a systems improvement approach to dealing with the problem of medical error. Next, the Article explains how the choice of standards that hospital peer review relies upon to measure physician competence negatively impacts quality and cost. Finally, the Article raises questions regarding the possible impact that hospital peer review has on access to healthcare, with a particularly negative potential impact on minority physicians as well as minority and low-income patients.
This Article proposes that hospital peer review be completely restructured to comport with the current scientific understandings of the methodologies that best act to prevent medical errors. A new system should be developed that relies on the application of a blend of knowledge translation theory with continuous quality improvement research to integrate evidence-based treatment choices using clinical practice guidelines into physician practice. Based on the libertarian paternalism theory developed by Professors Cass Sunstein and Richard Thaler, this proposed system relies upon 'gold standard' clinical practice guidelines as the default treatment choice, but then allows for individual physician choice in deviating from this choice if it is reasonable to do so. This exception allows for the currently high level of scientific uncertainty that exists when it comes to many medical conditions, particularly in the realm of the treatment of outliers. As the practice of evidence-based medicine (population-based medicine, or the treatment of 'norm') grows through the greater understanding of optimal treatment choices for the majority of people, and later transitions to personalized medicine based on the treatment of individuals according to their unique genetic profiles, this currently high degree of scientific uncertainly will steadily diminish over the next several decades, reducing the use of this exception. This proposed system also looks to the future of medicine as it allows for, and facilitates, the ultimate transition of the practice of medicine to the personalized medicine model.
In order to optimize this systems approach to error prevention, this new proposed system should be coupled with the adoption of a version of the anonymous third-party error reporting system successfully utilized by the airline industry that has been long advocated by the healthcare quality improvement movement.
Finally, this proposal recognizes that the hospital is both the best and least cost avoider when it comes to medical errors by allowing physicians to use a comparative negligence type of defense during the peer review hearing process. The use of this defense, coupled with reporting to an anonymous third-party error reporting system, acts to conditionally insulate the physician from National Practitioner Data Bank (NPDB) reporting. [excerpt]