Health care entities, such as hospitals, have been provided
with legal immunity from monetary damages so that they can
conduct professional review actions as a means of protecting
their patients from incompetent physicians. Unfortunately,
peer review actions are sometimes based on professional rivalry,
differing medical opinions, or intuitional financial gain rather
than on concerns relating to medical care. Under such circumstances,
the term "sham peer review" has come to be applied to such
matters.
When such discrimination based on elimination of competition or restraint of trade exists immunity from due process does not
then apply.
On July 12,
2004 the Abbott Northwestern Hospital (A-NW) Board of Trustees took
the most unusual action of banning two spine surgery procedures
because they deemed them to be "experimental"
in nature.
This action, was quite extraordinary for a number of
reasons:
1. The banning of established surgical procedures is a
most unusual hospital action. The few times in the past such
action has
been invoked by American hospitals has been a reflection of
extraordinary contentious ethical or moral issues,
such as the banning of abortion procedures.2. The
spine operations being banned at A-NW are clearly identified as standard
procedures in the 2004 AMA Current Procedural Terminology codebook.
3. The operations in question were routinely accepted as standard
procedures by
insurers and third party payers who are typically the most
hesitant to cover new or unproven technologies.
4. The cage procedure banned by A-NW was not specified in
the ban. Numerous
posterior interbody biomechanical devices and numerous
posterior interbody cages (both single and double) were in
routine use at that time.
5. The A-NW Board action was capricious and remarkably
biased.
5. Prior to FDA approval for full marketing the titanium
cage in question was used surgically on patients at A-NW
beginning in 1989 as part of a FDA Investigational Device Study
approved by the A-NW IRB Committee.
6. "Single cage fusion" (Posterior Interbody Placement of
a Biomechanical Device) started at A-NW and has continued to the
present. Only one
surgeon's performance of this procedure was
terminated by the
hospital.
7. In fact, the Board Action taken on July 14, 2004 was
something other spine surgeons were unaware of and enforcement
was directed only at one surgeon who subsequently resigned from the Medical
Staff in protest.
8. The banning of the surgical procedures in question was
one of the very last acts of the A-NW Board which was dissolved
later in the month of July, 2004 and replaced by a completely
new
Board representing Allina Hospitals and Clinics, the parent
corporation.
9. The A-NW CEO, Denny DeNarvaez, who was intimately
involved in the July 14th Board action resigned her position in
December, 2004 to "pursue other opportunities outside of
Abbott's parent company, Allina Hospitals and Clinics."
10. The surgeon who the ban was enforced against had
practiced at A-NW hospital for 30 years. His skill,
integrity, and quality of patient outcomes had never been
questioned during that period of time, or since.
11. The surgeon in question's competitor organization at
A-NW Hospital was being subsidized financially by the hospital
in clinic operations, fellowships and research funds. A
member of their group who was, at the time, Chairman of the
Orthopedics department was the first to make the claim that the
procedures in question were "experimental." |
