QUESTION:
We are in the middle of an investigation involving a spine surgeon.  As part of that investigation, we obtained two external reviews.  One is highly critical of our surgeon’s patient/procedure selection, clinical skill, and medical record documentation.  The other reached a few findings regarding medical record documentation, but did not reach any other findings of “wrongdoing” on the part of our surgeon.  Our committee is weighing these reviews and trying to figure out how to proceed.  In the meantime, we were wondering whether we need to give a copy of the external review reports to the spine surgeon.  To avoid opening a can of worms, do you think we could wait until the Committee decides which report it agrees with and then share only that report with the physician (since it is the one the Committee will be relying on)?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY RACHEL REMALEY:
It is our recommendation that the peer review process serves everyone (including physician leaders and the subjects of review) best when the process is transparent and informed.  So, it would be our recommendation that you share both of the external reviews with the physician, as part of the investigating committee’s process of communicating with, and obtaining information/input from, the physician during the course of the investigation.

If you are concerned about interference or retaliation by the spine surgeon (for example, the spine surgeon calling the external reviewer privately to discuss the report), you may wish to take the step of having the surgeon sign a confidentiality and non-retaliation agreement in advance.  Be sure to include language stating that the practitioner is not permitted to contact the external reviewer.

You might also be concerned about the fact that multiple external reviews have given your committee inconsistent reports.  While the committee likely needs to give the reports additional scrutiny to figure out why the reports are different, how much weight it is appropriate to give to each report, etc., please know that it is not unheard of for a Medical Staff committee to obtain reports that make varied findings and conclusions.  Sometimes, it’s because the training or experience of the reviewer differs.  Sometimes, it’s because the reviewers have practiced in different locations where different practices are more or less common.  There are a lot of explanations.  Your committee has the expertise to sort it out (and, if they need additional assistance, can always turn to the CMO or legal counsel for help).

Know, however, that the solution to this sort of uncertainty is not to withhold one or both reports from the physician.  Rather, lean in to transparency.  Share the entire report.  Seek the practitioner’s input.  If the practitioner obtains another external review and submits that report, work it into the fold in the same way (consider how much weight should be given to that report based on a variety of factors, including the reviewer’s education, training, and experience, the thoughtfulness of the report, etc.).  It’s never the wrong answer to keep the surgeon informed about the Committee’s concerns and it is always a best practice to welcome more information from the physician.  This way, when the investigation is over, if tough decisions (like an adverse professional review recommendation) have to be made, it will be clear that no stone was left unturned and the physician had every opportunity to respond to the information being relied on by the Committee in coming to that decision.