The Black Lives Matter and Me Too movements, as well as the Human Rights Campaign for the LGBTQ+ community, are a few examples of where American democracy and values have triumphed in restoring dignity and civil and constitutional rights to marginalized individuals. Although much work remains to be done, the enlightenment brought about by these movements will undoubtedly continue to strengthen American democracy. However, it is concerning that during the same time period, America’s physicians have faced increasing deprivation of their civil and constitutional rights by the federal government.
To quote Paul Harvey, “Here is the rest of the story.”
In 1986, the U.S. Congress passed the Health Care Quality Improvement Act of 1986 (HCQIA). HCQIA was designed to protect the health and safety of the public by 1) enhancing the peer review process through protection for peer review members from lawsuits and 2) providing a national repository for reported information regarding medical malpractice payments and adverse actions involving physicians.
HCQIA became law as the medical system was undergoing a significant organizational change. In 1986, most physicians were private practitioners who practiced in hospitals by virtue of holding privileges at that hospital. In the 1980s, there was effectively an organizational and administrative wall between medical staff office governance and the hospital administration. Fast forward to the drastic changes in the health care system since 1986. In 2023, health care has been consolidated into increasingly larger hospital organizations, payment for health care services has become consolidated under more powerful governmental and private insurance carriers, and the majority of physicians are now employed. In 2023, peer review committees in most hospital organizations are appointed by the medical staff offices, which are part of the hospital administration. The proceedings are conducted in secrecy and under the immunity provisions of HCQIA, and the presiding judge and jurors are chosen and paid by the hospital administration. As a result, many concerns have been raised about potential anticompetitive behavior by some hospitals, who may engage in “sham peer review” under the protection of HCQIA.
While sham peer review is a subject of vigorous debate, it concerns part of the provisions under HCQIA. However, the consequences of reporting adverse actions by the National Practitioner Data Bank (NPDB) have violated physicians’ constitutional and civil rights.
NPDB is an agency of the federal government under the jurisdiction of the Department of Health and Human Services (HHS). The NPDB publishes the reports from hospitals without an independent federal investigation. The framers of HCQIA did not foresee that in 2023, hospitals and employers will invariably deny employment or hospital privileges based on an NPDB report outlining loss of hospital privileges or relinquishment of hospital privileges under investigation. Such an adverse report by NPDB results in the inability of the physician to obtain employment or practice in a hospital. Therefore, in 2023, the unintended consequence of mere reporting by NPDB without further investigation or due Process by HHS, an agency of the federal government, violates physicians’ constitutional and civil rights.
The NPDB reporting provision of HCQIA violates the Constitution’s fifth, eighth, ninth, and tenth amendments.
1. Fifth Amendment: right to due process. Under HCQIA and state laws, the peer review proceedings are confidential and privileged. In the context of all this secrecy, the peer review process often lacks reasonable and fair procedures, does not provide any discovery for the physician, does not allow the accused to compel witnesses to testify, places the burden of proof on the accused, and ignores conflict of interest. Since HHS does not perform an independent investigation, the NPDB report is in violation of the Fifth Amendment.
2. Eighth Amendment: cruel and unusual punishment. In 2022, over 1,000 U.S. physicians had a report filed in the NPDB indicating their hospital privileges were revoked. This action officially blacklists a physician as untouchable by all other hospitals, medical boards, insurance carriers, and other entities important to a physician’s career. A physician’s career is terminated without the ability to obtain privileges at other hospitals. A report of revoking privileges without due process, which results in the termination of a physician’s career, amounts to cruel and unusual punishment in violation of the Eighth Amendment.
3. Ninth Amendment: Rights granted by state laws cannot be preempted by federal laws under the Supremacy Clause. The physician is licensed to practice medicine under state law. The effect of adverse reporting by NPDB, a federal agency, is to prevent the physician from exercising his rights authorized by the state medical license.
4. Tenth Amendment: The powers not delegated to the federal government by the Constitution, nor prohibited by it to the states, are reserved to the states respectively. As in the case of Ninth Amendment, adverse reporting by NPDB, a federal agency, which prevents the physician from exercising his rights under the state license represents a violation of the Tenth Amendment.
There is a dire need for legal action and a corresponding insurance product to reclaim the constitutional rights for all physicians. After all, protecting the physician community ultimately translates to better care for the public. American investigational journalists need to shine a light on these egregious violations of physicians’ civil and constitutional rights. It is time to acknowledge that physicians’ lives matter too.
Farid Gharagozloo is a cardiothoracic surgeon, professor of surgery, and surgeon-in-chief at the Institute For Advanced Thoracic Surgery, University of Central Florida College of Medicine, and UCF Lake Nona Hospital.
Robert Poston is a cardiothoracic surgeon.
Rainer Gruessner is a transplant surgeon.