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Risk management: the role of peer review in potentially compensable event and medical malpractice claims processing in the army medical department.

The May 22, 2009 rapid action revision of Army Regulation 40-68 (1) did much to distinguish the differing roles and procedures of peer review in the risk management setting from its use in the professional review process at Army medical treatment facilities (MTFs). Patient safety is the ultimate goal of peer review in both peer review tracks. Risk management peer review sometimes runs concurrently with or generates subsequent peer review for professional purposes. However, there are significant differences between the two.

Peer review is a tool used in the risk management (RM) context to further the RM goals of preventing the loss of human, materiel and financial resources, as well as limiting the negative consequences of adverse or unanticipated healthcare events through timely documentation, review, and analysis. (1(p106)) Peer review in the professional review context is designed for the disposition of clinical privileging/practice actions. Professional peer review can adversely impact provider credentials and therefore requires greater due process protections such as hearing and appeal rights.

Risk management peer review is governed by chapter 13 of Army Regulation 40-68 (1(pp108-113)) and is triggered either by occurrence of a potentially compensable event (PCE), filing of a medical claim, or notification of payment of a claim settlement or award. In each of these cases risk management peer review is a confidential quality assurance protected process that requires the multidisciplinary cooperation of legal, clinical, and quality management administrative staff members. The Army Medical Command (MEDCOM) Quality Management Division accomplishes its oversight and corporate tracking responsibilities for risk management peer reviews through the use of the Centralized Credentials Quality Assurance System database. Chapter 13 of Army Regulation 40-68 specifies frequent and incremental MTF reports/notifications into the Centralized Credentials Quality Assurance System at every step of the process, from discovery of a PCE or notice of a claim until final resolution.


A PCE is defined in Army Regulation 40-68 as
   an adverse event that occurs in the delivery of health
   care or services with resulting injury to the patient. It
   includes any adverse event or outcome, with or without
   legal fault, in which the patient experiences any
   unintended or unexpected negative result. It pertains to
   all patients regardless of beneficiary status.... (1(p167))

This definition includes cases involving death or disability of a military member as a result of medical or dental care, all of which are investigated as PCEs under Army Regulation 40-68.

Departmental/Service Level Peer Review

PCEs are most commonly identified by MTF risk managers from incident reports* originating at the point of care, or from the verbal or written statements of patients, family members, or healthcare staff. An initial departmental/service level peer review is conducted as soon as possible in order to capture information about the PCE while memories are fresh and records and personnel are still readily available. This peer review is conducted for every healthcare provider significantly involved in the PCE. The initial peer review is often conducted by an individual peer reviewer who is not involved in the case in question. Army Regulation 40-68 defines a peer as "an individual from the same professional discipline/ specialty to whom comparative reference is being made." (1(p166)) Regional medical commands assist in obtaining peer reviewers from other MTFs if a facility lacks sufficient personnel to conduct an impartial and unbiased peer review. Initial departmental/service level peer reviews investigate the clinical facts and circumstances surrounding the PCE and render standard of care and attribution determinations that are forwarded to the MTF risk management committee for consideration.

Risk Management Committee Level Peer Review

The risk management committee peer review likewise investigates the clinical facts and circumstances surrounding the PCE and renders a standard of care (SOC) determination ("SOC-Met," "SOC-Not Met," or "Indeterminate") and an attribution determination for each significantly involved healthcare provider. The specific rationale for these findings is included in the report, along with follow-up actions related to systems or process issues, any apparent trends with recommendations for improvement, and the status of any pending claims. The risk management committee report/minutes may also include recommendations for the MTF credentials committee for privilege/practice related actions (potentially initiating the alternative track of peer reviews that occur under the professional review system established in chapter 10, Army Regulation 40-681(p76)). Practitioner-specific findings are reported to the MTF credentials committee and/or department chief (in the case of a nonprivileged professional), and the risk management committee report/ minutes are then forwarded through quality management channels to the MTF commander. When required, regional medical commands provide support for MTFs lacking local risk management committee oversight.

Due Process Considerations

MTF-level risk management peer reviews entail only minimal due process procedures: significantly involved healthcare providers are notified in person or by certified return-receipt requested mail of the pending peer review, given access to medical records and redacted relevant documents, and given the opportunity to submit written statements. Local policy may allow in-person presentation of information by significantly involved providers, but will not permit their presence at risk management committee deliberations. The administrative nature and non-adversarial data collection and preservation purposes of PCE-initiated peer reviews explain the absence of greater formality or heightened due process protections.

If a PCE does not ripen into a medical malpractice claim or form the basis of a separate professional review for adverse privileging action, then the PCE-initiated risk management peer review concludes at the MTF level with the completion of required Centralized Credentials Quality Assurance System notifications and the report to the MTF commander. Exceptions to this are cases of a death or disability to a military member as a result of medical or dental care, all of which go beyond the MTF for further peer review and potential Defense Practitioner Data Bank reporting.


Medical malpractice peer reviews are triggered by the notification of a claim alleging substandard care to the MTF from the US Army Claims Service or the Center Judge Advocate or Staff Judge Advocate office at which the claim was filed. This includes every claim of malpractice filed under the Federal Tort Claims Act, (2) the Military Claims Act, (3) the International Claims Settlement Act, (4) or the Foreign Claims Act. (5)

The goals and procedures of the medical malpractice peer review at the MTF level are identical to those of the PCE-initiated peer review described above. In fact, an MTF peer review will not be repeated when a medical malpractice claim arises out of the same care/ provider reviewed previously in a properly conducted PCE-initiated peer review.

Peer review ceases at the MTF level unless a medical malpractice peer review instigates a separate professional peer review under Chapter 10 of Army Regulation 40-68 (1(pp71-93)) or there is a payment based on the underlying claim. Cases in which a medical malpractice claim results in a monetary award ("paid claim" cases) are elevated beyond the MTF for additional stages of peer review. Peer reviews that occur beyond the MTF take on an additional objective: facilitating the determination of whether The Surgeon General of the Army has a statutory requirement to file a report to the National Practitioner Data Bank (NPDB) under the Healthcare Quality Improvement Act of 1986. (6) Notification of a paid claim is of particular importance as it starts the clock running on a 180-day period during which The Surgeon General must make a reporting determination or the NPDB report becomes mandatory under Department of Defense [regulation] 6025.13-R (7((p16)) Paid claims include any monetary award arising out of claim settlement by US Army Claims Service, a host nation (International Claims Settlement Act Claims), or a claim settled or adjudicated by the Department of Justice.

Peer review also continues beyond the MTF for cases of death or disability to a military member as the result of medical or dental care, regardless of whether there has been a paid claim. Medical malpractice claims by the service members themselves are barred by the Feres doctrine.* However, these cases are referred into the risk management peer review system when a Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB) finds that care rendered to the service member deviated from the standard of care. A "standard of care not met" determination and attribution of responsibility in these cases may result in a report to the Defense Practitioner Data Bank rather than the NPDB.

Unlike their civilian counterparts, healthcare providers in the military healthcare system are afforded multiple peer reviews when they are the subject of a NPDB report. MEDCOM Quality Management Division coordinates peer review that occurs above the MTF level. All cases are reviewed by a discipline/specialty clinical expert designated by The Surgeon General who will either submit a written report to or participate as a member of the MEDCOM Special Review Panel (SRP).

The SRP consists of at least 3 privileged providers, at least one of whom is from the same specialty or discipline as the provider under review. The provider under review is notified of the pending SRP and typically given 15 days to submit any additional written information on his or her behalf. The SRP review is an administrative procedure to which the rules of evidence are not applied. The SRP considers any new information submitted by the provider along with all previous peer reviews, investigative reports, relevant clinical records, and a summary of the administrative claim adjudication or litigation disposition documents.

An additional external peer review is sought whenever an initial SRP peer review makes a "standard of caremet" (SOC-Met) determination, whenever there is a SOC Not-Met determination but it is attributed to a "systems error" rather than an individual provider, or at the discretion of the SRP. The current designee by the Assistant Secretary of Defense (Health Affairs) for external peer review is MAXIMUS, Inc (11419 Sunset Hills Road, Reston, Virginia 20190). The SRP reconvenes for a second and usually final time to consider the results of the external peer review by MAXIMUS. If necessary due to some unresolved issue in the case record, the SRP may elect to seek additional information and hold additional reviews. The SRP makes a SOC determination and attribution by majority vote as well as a recommendation on NPDB reporting to The Surgeon General. The Surgeon General is the sole reporting authority to the NPDB. Regulations allow delegation of reporting authority to the SRP for cases in which all levels of peer review agree SOC Not-Met, however this delegation is not currently exercised.

Section 14-3 of Army Regulation 40-68 (1(pp114-115)) sets forth procedures, specific criteria, and legal review requirements for reports to the NPDB. In order for there to be an NPDB report, there must be a finding that the provider committed a deviation from the standard of care and that the deviation was the cause of harm that gave rise to a payment. An NPDB report of a trainee requires additional findings that the trainee acted outside the scope of his or her practice or that his or her deviation from standard of care was not reasonably foreseeable by a supervisor. The most common processing avenues of paid-claim medical malpractice cases to a final determination on NPDB reporting are shown in the Figure.

The Army risk management peer review system is designed to carefully balance numerous important interests: patient safety, data collection and preservation, protection of healthcare provider credentials and reputations, and accountability and disclosure to the public in the case of substandard care. The system relies heavily on frequent communication with and oversight by the MEDCOM Quality Management Division through the Centralized Credentials Quality Assurance System, as well as the coordination of risk managers, Army lawyers and unbiased peer reviewers.



(1.) Army Regulation 40-68: Clinical Quality Management. Washington, DC; US Dept of the Army; February 26, 2004 [revised May 22, 2009].

(2.) 28 USC [section]2671(b)(1).

(3.) 10 USC [section]2733.

(4.) 22 USC [section]1621.

(5.) 10 USC [section]2734-2736.

(6.) 42 USC [section]11101.

(7.) Department of Defense 6025.13-R: Military Health System Clinical Quality Assurance Program Regulation. Washington, DC: US Dept of Defense; June 11, 2004.

(8.) Feres v United States, 340 US 135 (1950).

* Department of the Army Form 4106

* The Feres doctrine is the term describing the result of a case (8) which generally precludes successful suits by service members for personal injury or death that is incurred incident to service, whether or not they were suffered in the performance of their duties.


LTC Kutsch is a Drilling Individual Mobilization Augmentee currently assigned to the US Army Medical Command Office of the Staff Judge Advocate, Fort Sam Houston, Texas.
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Author:Kutsch, Anthony J.
Publication:U.S. Army Medical Department Journal
Geographic Code:1USA
Date:Jan 1, 2010
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