The professional staff that works with me provides thorough, competent, and evidence-based medicine Physician Peer Review that serves an important role in the workers’ compensation and disability systems. It helps payers, employers, attorneys, regulators, and claims professionals make informed decisions regarding medical necessity, causation, diagnosis, and treatment appropriateness. A well performed peer review is not advocacy. It is not treatment. It is not a denial. It is an independent clinical opinion based upon the available records and evidence.
Unfortunately, an increasing concern, one that we have experienced twice in the last several months, is the use of medical board complaints as a retaliatory weapon against physicians who provide opinions that are unfavorable to a treating provider, claimant attorney, injured employee, employer, carrier, or other interested party.
This trend raises significant concerns not only for physicians, but also for the integrity of the entire claims management process.
Peer Review Is Not Direct Patient Care
One of the most misunderstood aspects of physician peer review is the belief that the reviewing physician is engaged in the practice of treating the injured employee. In reality, peer review activities do not involve a physician-patient relationship. The reviewing physician does not examine the patient, prescribe treatment, establish a treatment plan, or assume responsibility for ongoing care. That reviewer is simply looking at the clinical records, applying the standards of evidence-based medicine and responding to particular inquiries.
Each of the peer review reports provided specifically states that the review is intended to assist in case evaluation and unambiguously does not establish a doctor-patient relationship. Similar language appears routinely in utilization review and independent medical review reports throughout the workers’ compensation industry.
The role of the reviewer is fundamentally different from that of the treating provider. The reviewer analyzes records, applies evidence-based medicine, evaluates objective findings, and offers an opinion regarding the specific questions presented. That distinction matters. A disagreement with a clinical opinion is not the same thing as professional misconduct.
The Chilling Effect of Retaliatory Complaints
Every physician understands that legitimate medical board oversight is essential for patient protection. However, there is a significant difference between a complaint alleging unsafe patient care and a complaint filed simply because someone disagrees with an independent opinion.
When board complaints are used as a litigation tactic, the result can be a chilling effect on honest medical analysis. Physicians may become reluctant to perform peer reviews involving controversial diagnoses, expensive treatment requests, opioid management, causation disputes, or impairment ratings. Some may simply decide that the personal and professional risk is not worth the effort.
That outcome benefits no one. Claims professionals need access to independent clinical opinions. Courts need independent experts. Patients deserve decisions based upon competent, objective and independently confirmable medical evidence rather than fear of professional retaliation.
First Amendment Considerations
Although the legal analysis varies by jurisdiction, courts have often recognized that professional opinions may constitute protected speech under the First Amendment. Please take note of Conant v. Walters, 309 F.3d 629 (9th Cir. 2002). The Ninth Circuit held that the government could not investigate or sanction a physician based solely on the physician expressing a good faith professional medical opinion to a patient. A physician who reviews records and expresses an independent medical opinion is communicating an interpretation of medical evidence. The opinion may ultimately be right or wrong, persuasive or unpersuasive, but disagreement alone should not transform protected professional expression into a disciplinary offense.
The alternative is troubling. If physicians face regulatory action whenever an interested party disagrees with an expert opinion, the marketplace of medical ideas becomes distorted. Clinical conclusions would become driven by risk avoidance rather than scientific reasoning. Medicine advances through debate, analysis, criticism, and disagreement. Peer review is one of the mechanisms that allows that process to occur.
Protecting the Integrity of the Claims Process
None of this suggests that peer reviewers should be immune from scrutiny. A reviewer who is dishonest, knowingly misrepresents facts, ignores records, practices outside their area of competence, or operates under an undisclosed conflict of interest should absolutely be subject to investigation.
The key issue is intent and conduct. Was the review performed in good faith? Was the opinion supported by the records reviewed? Was the reasoning based upon accepted medical principles? Was the reviewer acting within the scope of their expertise? Each of these are legitimate questions. “I disagree with the conclusion” is not.
Final Thoughts
Workers’ compensation depends upon objective medical analysis. Legitimate peer review provides one of the few mechanisms available to separate medical possibility from medical probability, symptoms from objective findings, and treatment preference from evidence-based necessity.
When medical board complaints are used as weapons against physicians who provide honest, competent, and independent opinions, the entire system is weakened. The ultimate casualty is not the reviewing physician. It is the pursuit of objective medical truth.
