Attorneys increase involvement in medical peer review.

When Lowell C. Brown started working as a medical lawyer in 1985, he took some cases for hospitals that needed help dealing with doctors singled out for a review by their peers, but it remained only a small part of his practice.

Then, three years ago, the Foley & Lardher LLP partner noticed a spike in such business. Since then it's taken up to 90 percent of his time and he's now one of the best-known "peer review" attorneys on the West Coast.

"There's been a lot of work in this practice area," said Brown, whose firm's L.A. office has tripled the number of peer review attorneys from two to six. "There has always been peer review at least in the modern era. What has changed is it's becoming increasingly contentious, increasingly legalistic, more time-consuming, more burdensome and more difficult to do."

Medical peer review--where physicians' medical decisions are discussed by others on a hospital's medical staff--has been a source of business for attorneys for 30 years, but new laws and a greater focus on quality of care are making it a booming one.

A statute passed last January allows doctors to get individual representation for the review process and another bill in the state Legislature sponsored by the California Medical Association would further codify what had long been a more informal process.

All this comes at the same time patient awareness over the quality of medical care and a movement to improve care has gained traction nationwide. That gives impetus to hospitals to ensure their medical staffs are following accepted protocols.

"The stakes for patient safety have never been higher," said Mark Anthony Kadzielski, who heads the West Coast health law practice at Fulbright & Jaworski LLP. "Healthcare entities are being held to higher standards than they ever have been. The increase of cases involving negligent credentialing and negligent peer review have also brought more focus to this entire area."

Long history

Fulbright and Jaworski's health care law practice has 80 lawyers nationwide with six focused solely on peer review, a number that has tripled in the past three years. And it is far from the only firm that has seen such a surge.

Membership in the American Health Lawyers Association's credentialing and peer review department surged nearly 300 percent from to 763 lawyers from 1999 to 2003, though that growth has recently tapered off.

"The energy around the issue has grown," said Peter Liebold, executive vice president and chief executive of the health lawyers association.

Under California law, doctors aren't employed by the hospitals where they see patients. The medical staff is actually a separate entity that polices itself for any infractions or poor patient care under the peer review process. If the medical staff determines that a physician is acting irresponsibly, they may take disciplinary action such as a suspension or termination of staff privileges. The hospital may also step in if it suspects there is a problem with a physician that the staff is not handling.

This is the main avenue for lawyers involved in medical peer review. The medical staff hires a lawyer to represent its interests during the hearing, the physician in question often hires a lawyer, the hospital has legal representation and another lawyer acts as the "hearing officer."

Moreover, there is a growing body of case law that has made peer review in California more mired in legalese than any other state, said Lois Richardson, vice president and legal counsel of the California Hospital Association. And it's only getting more complicated.

Very legalistic

"When a physician is subject to review, they hire an attorney to fight and look for every possible legal technicality they can," Richardson said. "That's what's made this process very legalistic. We think it's unfortunate."

However, doctors say that with their livelihood at stake it only makes sense that their peers would take advantage of all legal avenues to protect themselves.

"Luckily I've never had to go through much trouble but I do know several physicians who, for whatever reason, have had trouble with the board or a peer review committee, and in this day and age it would be foolish not to have a lawyer to protect your best interests," said Dr. Anthony Chin, a Beverly Hills obstetrician and gynecologist.

Chin said a physician friend was recently questioned for a complication that arose after treating a patient. The physician decided to go to his hearing without representation.

"They jumped all over him," Chin said. "He didn't know what to expect and he got dinged for insufficient medical record keeping, which they could get anybody on, but they used that as an excuse to get him to pay for everything: the cost of the hearing, the cost of proctoring, the probationary period. If he had some representation to look out for his own interests, it wouldn't have turned out so badly."