A case of wrongful use of quality management.

In 1986, Medicare announced that it would not reimburse for the services of physicians acting as assistants in certain ophthalmological procedures. Several hospitals in the Los Angeles area, including Midway Hospital (where Dr. Pinhas practiced), had required an assistant surgeon at eye operations, but, following the Medicare decision, dropped the assistant surgeon requirement.

The fact that Midway Hospital's peer institutions dropped the requirement indicates that they did not feel that quality of patient care was going to suffer with the elimination of the assistant. Furthermore, the lack of action from the surgeons and the quality assurance departments of the institutions indicates that they did not consider the lack of the surgical assistant as a barrier to high-quality surgery. The federal government, through HCFA and Medicare rules, indicated that the surgical assistant was not crucial in the delivery of care. The standard of care in the area was effectively changed when HCFA dropped reimbursement for assistants and local hospitals eliminated the requirement for a surgical assistant in ophthalmological cases.

In the Pinhas case, quality assurance was used as a ploy to remove a physician who does not conform with the rules of the institution, regardless of the merits of such rules. No data were presented in the Pinhas case that Midway Hospital felt there was an increase in its malpractice exposure. Increased exposure would have resulted in the insurance carrier's demand to retain the surgical assistants or in an increase in insurance premiums. Midway impaired its credibility by allegedly trying to enter a sham agreement with Dr. Pinhas to reimburse him for the cost of the assistants while failing to demonstrate the need for their use in ophthalmological cases to preserve quality.

Considering this case outside the legal realm, Midway Hospital struck a deadly blow to the cause of quality management through its actions. It reinforced the fears of physicians that quality assurance is or may be used not to enhance the quality of services rendered but as a tool to enforce decisions on the withdrawal of hospital privileges where there is no just cause for the quality argument.

The effectiveness of credentialing efforts in an organization depends on the organization's ability to make decisions whose ultimate goal is high-quality health care delivery and/or financial survival of the organization. The Pinhas case illustrates the misuse of quality management techniques in an attempt to solve an internal political problem. The Health Care Quality Improvement Act of 1986 requires, for the granting of immunity, that a professional review action be taken, among other things, "in the reasonable belief that the action was in furtherance of quality health care." The hospital failed to prove that actions in the case of Dr. Pinhas were motivated by either damage to standards of care or the financial status of the hospital.

In essence, this is a case in which the actions of a physician challenged the norms of the hospital. The question that should have helped the hospital and that was not answered is: "Would the actions of Dr. Pinhas have harmed the hospital's capacity to function and be profitable?" Had this question been answered in the affirmative, the denial of privileges would have had an ethical and legal basis and the hospital would have prevailed. (*) 111 A.Ct. 1842-1846 (1991).

Albert E. Trentalance, MD, MBA, FACPE, is a medical consultant and risk management expert in Ponte Vedra, Fla. He is Chair of the College's Society on Insurance and a member of the Forums on Clinical Guidelines and Quality Health Care.