Medical ‘3-Strike Rule’

Times change!

Strike 1: About 25 years ago it was the lawyers who were persecuting physicians with malpractice lawsuits. Their malpractice assault raised medical costs directly due to extreme lawyers’ fees and judgments – and indirectly by causing doctors to practice “defensive medicine.” Medicine and physicians painfully survived this assault – but may not live far beyond the proposed additional rights to sue in the “Patients’ Bill of Rights” unless reasonable legal restraints are added.

Strike 2: This legalized malpractice plunder plowed the fertile fields and planted the seeds for management profiteers to move in and harvest the fruits of others’ work. They called it “managed care” which really wound up being “managed costs” with all of the attendant problems and debate that we, other writers and patients, have discussed until we’re sicker than before.

Strike 3: The latest strike – which may ultimately throw us all out – is the new fad of “sham peer review.” Let us clarify: We are not talking about legitimate hospital and state licensing board peer review to prevent them from making their appointed rounds.

We are talking about bona-fide instances where highly capable and respected physicians in the community are removed from staffs because of trumped up or false charges. Based on our review of public court documents, these are often from competitors who wish to remove physicians for reason of competition, jealousy, bigotry or hospital power politics.

As an example, let’s look at the prosecution of Jeffrey Rutgard MD of La Jolla, Calif. Over a decade, Dr. Rutgard built a very successful practice, working in two offices and an outpatient surgical center. According to U.S. Circuit Court of Appeals documents, “He kept an extraordinary schedule of working 6 1/2 days per week, 16 hours a day, with trips to medical meetings but without vacations.”

“His skill as a surgeon was recognized. The success of his practice he attributed in large measure to word-of-mouth recommendation by satisfied patients … other ophthalmologists sent members of their families to him for surgery.”

Testimony by recognized experts was discounted, including testimony by Henry Baylis MD, UCLA School of Medicine and chief of Ophthalmic Plastic Surgery at UCLA.

But testimony of local doctors competing with Dr. Rutgard was pushed by prosecutors and accepted by the judge, an obvious conflict of interest. Dr. Baylis reviewed the comments made by several doctors and saw “what appears … to be a conspiracy.” He also notes that several of these physicians were “notorious for their frequent criticism of their competitors and fellow physicians in their fields.” Dr. Rutgard spent several years in prison before this injustice was even partially rectified.

There’s another report about a physician expert witness who contradicted another medical expert witness in court. On cross-examination by the opposing lawyer, he was asked, “Well, doctor, why do you and other doctors’ opinions sometimes differ so much on the same question?” The doctor answered, “Probably for the same reason that the one Supreme Court justice’s opinion will sometimes differ so much from other justices.” Yet these honest differences of opinion have removed some capable physicians from hospital medical staff positions or landed them in jail.

The damage to these and other physicians’ personal and professional lives is incalculable. Careers, friendships and marriages fail; physicians’ families become social outcasts; many suffer financial ruin; and suicides are reported. There’s also no recovering the pain and suffering endured by many patients because their personal physicians with whom they had longstanding trusted relationships were taken from them. One physician told us that a former patient died.

In our review of these and other unfortunate cases, we’re struck by the damage and injustice done to competent physicians selected out by unethical doctors and further trampled by vindictive prosecutors.

As if medicine doesn’t have enough problems and physician dissatisfaction already.

As reported in the July 16 Orange County Register, in a survey of 2,000 state doctors issued by the California Medical Association, “44 percent of Orange County doctors who took the survey said they plan to leave the state or retire early.”

We also worry that this newest of lethal weapons could be used by some unscrupulous HMO administrators to divest themselves of competent physicians who spend time with – and advocate for – their patients. Many states have already outlawed some abhorrent HMO practices, such as firing doctors without cause, paying them more for spending less on patients and “capitation” whereby physicians are reimbursed pennies per month per patient and thereby forced to become both the provider and insurer – a ruthless, shameful and cynical conflict of interest.

We hope that “sham peer review” does not become the managed care industry’s latest tool to disenfranchise good physicians.

Left unchecked, this could be the final and third strike that ejects physicians out of the old ball game. Having barely withstood the Barbary Coast lawyers and HMO entrepreneurs, can patients and doctors survive “sham peer review” – the process of doctors falsely accusing and prosecuting other doctors for personal gain?

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Michael Arnold Glueck, M.D., of Newport Beach, Calif., writes extensively on medical, legal, disability and mental health reform. Robert J. Cihak, M.D., of Aberdeen, Wash., is president of the Association of American Physicians and Surgeons. Both doctors are Harvard trained diagnostic radiologists. Collaborating as The Medicine Men, they write a weekly column for WorldNetDaily as well as numerous articles and editorials for newspapers, newsletters, magazines and journals nationally and internationally.