AHLA's Speaking of Health Law

An Epidemic of Racism in Peer Review: Killing Access to Black and Brown Physicians

September 13, 2022 AHLA Podcasts
AHLA's Speaking of Health Law
An Epidemic of Racism in Peer Review: Killing Access to Black and Brown Physicians
Show Notes Transcript

The medical profession has experienced a significant increase in the number of adverse medical staff actions against physicians of color, threatening their economic, physical, and mental well-being. Almeta Cooper, National Manager for Health Equity, Moms Clean Air Force, speaks with Sidney Welch, Office Managing Partner, Akerman LLP, and Tricia “CK” Hoffler, CEO, CK Hoffler Firm, about the context and nature of medical staff actions against physicians of color and corresponding legal challenges, the intersection of employment discrimination and health care regulation, and suggestions for reform. Sidney and CK authored an article for AHLA’s special edition of the Journal of Health and Life Sciences Law dedicated to “Emerging Issues in Health Equity in the United States: Legal, Legislative, and Policy Perspectives.”

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Speaker 1:

This episode of ALA , speaking of health law is brought to you by HLA members and donors like you for more information, visit American health law.org .

Speaker 2:

Hello, and welcome to our audience to a discussion about an epidemic of racism in peer review , killing access to black and brown physicians. Our discussion is based on an article that was published in the American health law journal of health law and life sciences, special issue, emerging issues in health equity in the United States, from a legal, legislative and policy perspective. I wanna give a special thank you to ALA and its leaders for publishing the special issue which was issued in may of 2022, addressing some of the difficult and important health equity issues facing healthcare lawyers and other healthcare leaders. Today. It was my pleasure to serve with Harvey Tebo as co-editor of the special issue. And I encourage all of our listeners to go online and read all the excellent articles that are available to the public, including the one we're discussing today. I'm your moderator AA Cooper. I am in my day job, the national manager for health equity for moms clean air force. And I am a long time ALA member and past president. So it's my special pleasure to be a part of this podcast. Today , today we're honored to have with us Sydney Welch , uh, who is someone who I've had the pleasure of knowing many years as a healthcare lawyer. She is also a healthcare regulatory lawyer , uh, with the national law firm Ackerman LLLP . She works with physicians, physician practices and healthcare companies across the country. We also are honored to have with us today, CK hoer . She is a seasoned trial lawyer and CEO of the CK. I'm sorry. I said hoer it's Hoffler Hoffler firm, a trilingual law firm. Uh , they speak English, French and Spanish based in Atlanta, Georgia, and she is among her many accomplishments, a recent past president of the national bar association. She also advises and represents physicians and physician practices. Uh , now I just wanna kind of turn to the context of why we're here today. Recently the medical profession has experienced a significant increase in the number of adverse medical staff actions against physicians of color. This is a crisis of epidemic, proportions and impact, and it really threatens the economic, physical, and mental wellbeing of physicians of color and has taken a corresponding toll on their patients and many of their patients of color already negatively impacted by the systemic racism in the healthcare system. Their article explored the history context and nature of medical staff actions and corresponding legal challenges, health outcomes, and the importance of access to physicians of color, the perversion of the peer review process and underlying themes of economic competition, preservation of power racism, and unconscious bias. And they also , uh, provided in their articles, some suggested actions for tangible reform. So with that, in context, I want to first ask Sydney , you represent physicians at all parts or in all sectors of the healthcare field. Can you please explain to me and to our listening audience, what you mean by this epidemic of racism and peer review ?

Speaker 3:

Thanks. Almita in a special thank you to HLA for giving us the opportunity to introduce this crisis that CK and I have both observed and other healthcare practitioners across the country have also observed. And so I wanna talk a little bit about identifying the problem because identifying problem, putting a name to it, and then talking about solutions is such an important piece of this. Um , particularly on the awareness side, in, in essence, what the observation of many of us have been is this increase in disciplinary actions and peer review actions targeted at black and brown physicians across the country. And typically these increased incidences fall into one of two buckets just over generalizing, but it's either under the auspices or the guise of professional competence or under one of professional conduct. And I think the professional con competence side of it is fairly easy to understand the label is that the physician aired in however they approached a particular problem, or they had a patient incident and the physician's competence in his or her specialty is being called into question. The second is more of a catchall. And under this umbrella of professional conduct, it can range the gamut of failure to return telephone calls, failure to follow medical staff , uh, policies and procedures, the quote unquote disruptive physician. And there are many stories to be told on this front , um, CK , and I've only heard a fraction of them. Um , and we start, you know, collecting and collaborating on those that we have , um, in the article that we authored for HLA, we give many more examples. So I'd encourage you to read those, but we're gonna talk about two examples from each of these categories for purposes of today's conversation. I'm gonna let CK kick off the professional competence example , um, where we really saw evidence of racism that was under the guise of professional competence, leading to demands for the physician to take certain remedial actions that would not have been expected of his white counterparts. And then also having the end effect of foreclosing him from continuing his profession, which he had trained countless hours to do. And I think all of these , um, so many of them have that devastating effect on the professional career of well trained physicians. I'm gonna give you briefly the example in the professional conduct category, and it really has the flavor of all of those different examples that I talked about in the bucket of professional conduct. Um , but take , for example, a physician who's a black physician practices for national healthcare system , um, but in a more rural setting CK, and I've seen these both in the urban context in the rural. So I don't think in , in small hospitals, large hospital systems, it really doesn't matter. It's fairly pervasive, but this physician was written up for allegedly failing to respond to telephone pages and telephone calls in a timely manner where there was some question about calling the right numbers. There was some question about cell signals, et cetera . This physician was also written up for asking a sales representative that had entered into the operating room , uh, asking that sales representative, who did not have prior permission to be in the operating room with the physician to leave , um, because the sales rep wasn't following the institution's policies and procedures, and the physician was written up for asking the sales representative to lead and then a failure to respond to communications from medical staff representatives and administrative representatives regarding , uh, his conduct and alleged violations that were in those categories. Ultimately leading the medical staff leadership after the physician had responded to the concerns given very rational explanations to , to demand that the physician undergo , um, anger management, counseling, and therapy. Now in no instances have been there been any , um, allegations that were made that the physician typically what we might see is the throwing of the surgical instruments in the operating room , um, that you would see in those types of conduct. None of that was evidenced here, but it was almost as if there wasn't anything else left once the allegations were addressed. And that's what led to the , um, labeling as a disruptive or an angry physician with the anger management counseling being demanded. So rather than have the physician accept that label, which is often tagged to physicians of color who have expressed their opinion with respect to how nursing staff or other issues , uh, that are problematic, that they've identified from a quality standpoint, they often get slapped with that label and disciplinary action taken. We had the physician go directly to a psychiatric physician of color with the degrees in the experience necessary to identify whether an anger issue , um, existed. They went through that evaluation. The conclusion was no. Um, he ought to have <laugh> an anger management issue given all of the things that had been heaped on him as a physician and all of the bureaucratic and disciplinary action that was taken. Um, and we simply responded to say that we've had the physician evaluated there . Uh , we've completed the request for the anger management training by having the evaluation done, but that's several thousands of dollars later that's after a disciplinary action taken of a suspension of the physician's medical staff membership and clinical privileges had to hire a lawyer, had to hire the evaluator, had to respond to all of those complaints and the trauma that goes with all of that is certainly understandable. Um, I'll turn the mic over to CK and lets you, let her give you a flavor of the professional competence, examples

Speaker 2:

At CK before you begin. I just want , first of all, thank you , uh, Sydney for that very , um, comprehensive answer and setting the framework for the discussion and CK as you answer, I would like you to , uh, provide your perspective as a litigator , uh, you know, as how you become involved in these types of complaints or cases. And also if you can perhaps weave in how , uh, employment discrimination and he healthcare regulatory impacts intersect as you take on this type of case.

Speaker 4:

Absolutely. Well, first of all , um, Aita , thank you so much for, for doing this podcast and for everything that you've done in putting , um, together , um, the wonderful journal where our article appeared and thank you to a HLA as well for everything that they've done. This is really an important issue. I've been a lawyer for 37 years and the majority of my practice, at least 25 of those years, I have represented African American, black and brown people and minority groups in discrimination cases. That's just a very small part of my practice and discrimination cases, whether it's in the employment context, typically it's been in employment context, whether they're professionals, as in the case of New York state civil service workers , um, that's the largest grouping I've done class action cases. That was a class action, 4,800 African American and Latino civil service workers or , um, group cases, multiple plaintiffs , um, in different corporate environments or as, as I am currently representing an individual doctor who has been a victim of what I call this, this terrible epidemic that involves one, one major way, subjective way of discriminating. And that is the utilization of the peer review process. So my client is Dr. Dari AME , a very, very talented and skilled neurosurgeon who had exceptional training and credentials. And he came back home to Atlanta. His family is of Nigerian descend . And I want to underscore that some of the issues, the , the racism that we see, the macro microaggressions are very, very common, but sometimes they're cultural dynamics that compound the issues . And I think in this case, there were cultural dynamics, even though he's raised here, he went to school here. Um, but you know, sometimes when people see a last name like <inaudible> , that is, or the first name Dray , you know, they have these ideas of people living in huts and not being trained and not being up to par. These are subliminal biases that people have that they bring to the table because they're all a product of their experiences. And closed-mindedness, doesn't stop when you go to professional school. So against that backdrop , um, my client was at WellStar we're in litigation. So much of this is, is in the public. All of this is in , in the public domain. As a matter of public record, he was hired to lead and to be , uh, to be a leader in neurosurgery, in many respects, he was breaking new ground. He had a supervisor who really, in the final analysis we would submit just did not like him. Didn't like his style. Didn't like his aggressive nature. Didn't like the creativity they brought to the table. He had very, very, he was highly skilled and highly trained in neurosurgery. And some of the techniques that he utilized were not known, because again, he was trailblazing exceptionally well trained all of a sudden, you know, he thought things were progressing very well. All of a sudden he was started to re get these complaints if you will, from the peer review process, which is a very subjective process where allegedly anyone could file these complaints where there are complaints of problems stemming from procedures that are used people accusing him of maybe not interacting well with the staff and the patients. There were many of the multiple double digit complaints, all of which were completely investigated by a third party expert, physician Harvard trained and were found to be without any basis or didn't have any basis in terms of a deviation of the standard of care. And that's really critical because in the world of medical negligence, when you're looking at the performance, the , um, professional competence of, as Sydney pointed out of doctors, you look at whether they're operating within the standard of care. Of course, professional conduct is important, but are they operating within the standard of care? So having an expert, an independent third party to review these because Dr out woman was just very confused. He was distraught that all of a sudden, all these peer review, they seemed like trumped up charges were brought against them. None of them having an validity, he was then put on a performance improvement plan and , um, and which was distressing for him in of itself. But he, again, being a team player, wanting to get through this, he was at a , a great facility and was a great opportunity. He believed, and he performed ahead of schedule because he wanted to complete the P I P he wanted to complete this performance review , um, this performance improvement plan, which was bogus in and of itself. But again, he wanted to get to the next step, loved neurosurgery. That's what he was trained at. That's what he was good at. That was his expertise. And so he submitted, he submitted himself to this very humiliating process where they treated him worse than he was treated in residency. And more importantly, the supervisor said that he was going to take him back to that stage, take him down a notch if you will . And in that process, they came very close to breaking his spirit, to breaking the spirit of an imminently qualified, exceptionally well trained neurosurgeon who ran circles around most doctors that he came in contact with. So the, before he could complete the performance improvement plan, he was terminated. Even though people praised him for the phenomenal work, he did. The rapid pace that he was going through is his performance improvement plan. He was terminated for actually nothing that we can discern to be valid or justifiable, but maybe not fostering the appropriate relationships that is code for. We don't want you. We don't like you. We want you out. And by any means necessary, we're going to get you out. And that is what happened. His plan, his action plan is still open and where this case becomes punitive in my, in my assessment, punitive as a trial lawyer is he has been, he's had exceptional difficulty of the past two years in seeking other employment because when the plan is open new prospective employers, can't in some respects because of the rules that govern the , the institutions take on a new doctor, even if he's highly skilled, highly trained and highly recommended. If there's a plan that's open, there could be open liability. And the hospital failed to allow him to complete that plan. Despite the mini pleas , despite him engaging counsel , despite all of the things that he did to, to put himself back on an appropriate trajectory as a neurosurgeon. So he had to file a lawsuit quite frankly, so that he could get back on a plan. And so that he could do what he loves to do is practice no surgery. So we are knee deep in that litigation. And that's gonna go on for some time, the moral to that story. And as a trial lawyer, what I've seen as a professional meet over the years is that you can win the battle at trial, but you can lose the war because of the ravages of racism and discrimination and the impact on physicians and what we're seeing with the peer review process. It's a way of subjectively taking down imminently qualified black physicians, minority physicians, black and brown physicians in a way that is particularly humiliating and heartbreaking and heart wrenching. So that is what I've seen in litigation. What I've seen happening in this country. I can only speak to what I see in this country because I'm a plaintiff's lawyer and I've seen this happen time and time again. In fact, there's an uptake of all these types of cases. It is , it is humiliating. It is , it is just so discouraging to see this happen to a class of doctors who all they really wanna do is practice medicine and save lives.

Speaker 2:

Let me interrupt for a moment and ask both Sid and CK . Um, your it's been a, a bit of time has elapsed. And you mentioned that you were seeing an uptick. I wonder if you either, or both of you could comment on if you see a continuous trend from the time that you first wrote your article, which was in late 20, 21, we're midway through 2022. Uh , do you have any indication that the trend is continuing based? You know , what, in your experiences causing you to first, what caused you to detect the trend and what causes you to see a , a , an ongoing trend?

Speaker 3:

Um , I'm having to start with that Almeda. And I would say certainly we have not seen a slow down in this type of behavior of abuse of the peer review process for discriminatory purposes. Um, what we have seen is an increase of physicians that are willing to talk about it , uh, to , to springboard off of what CK said. Um , not only do you have kind of taking underground, if you will, with the microaggressions , um, you know, and out of the macroaggression, some of the discriminatory things and twisting the peer review process and using it , um, inappropriately and abusively, but physicians are starting to come out of what was previously , um, the shame of being involved in , in many of these processes and have conversations about it , um, to identify it to other physicians, to let them know that they're not alone in the process. And I think that that's extremely critical to all of this, because you have to identify and talk about it. And for many of these physicians, they have , um, worked so hard and had to work twice five times a hundred, fold their white counterparts to get to where they are academically surviving through medical school, et cetera , and they've never failed at anything. And all of a sudden, now they're being told that they are failing for on a professional competence or conduct standpoint. And they take that personally as is understandable. You know, where, where did I go wrong? What did I do is always the first question they're asking and they're rethinking these cases that are being, they're being called out on the map for. And so oftentimes it is not comfortable for them to go to a peer colleague that they trust to say, you know, the figure's been pointed at me as not being a good physician. Um , and now they're net more networks and safety checks and back and forth to help get them through the process, which I think is a really good thing.

Speaker 2:

It seems rather ironic to me that in a time in our country, when we see a , uh, call for the increase in the number of physicians of color, in order to have a more diverse and culturally competent , uh, healthcare profession that you would at the same time, see a , this type of trend where there's a disproportionate impact on physicians of color , um, who are in the healthcare field . Um, one of the things also, I think some in our audience may be curious about is that when you are hand , when either you or CK are handling this type of case, how does does this issue come to the front in terms of the implications of discrimination or racism? How does this issue manifest itself in the course of trying to assist the physician in responding to either a professional conduct or professional con uh , competence challenge?

Speaker 4:

So I'll take a shot at answering that. Well , first of all, Sydney , who's a phenomenal lawyer and who also is so highly trained and skilled at healthcare policy issues and regulatory issues set the framework exceptionally well in my space. I just go and fight. When doctors come to me, they are really, I'm a lawyer of last resort. I'm not a lawyer first resort. I'm not the lawyer who's trying to, to help them negotiate a solution. They have tried all of that. Everything has failed. Their back is up against the wall. By the time they come to me. So they come to me in a very, very bad space on me , to a very, very bad space where everything has failed. Everything is broken, they've been terminated, or they are about to be terminated. They're about to lose everything. But most importantly, they're on the verge of losing their spirit. These are as Sydney , as accurately stated , a lot of these doctors have never failed at anything. They've always been stellar. They've always been the first in their class. They've always been great. They have a , a , a , a , a passion for humanity for helping people for saving lives. And yet they find themselves in an unthinkable position and they try to come up with, what did I do wrong? Did I do anything wrong? And then when they realize they did nothing wrong, because they have third party , independent people who review their work and what gradually comes to them, or sometimes it hits them in the face, like a smack in the face is that it is racism it's bias. And then they start to look at it. And it all begins to make sense, because when you are highly skilled professional, you refuse to believe that the , the , the playing field is not even, even though, or not level, even though, you know, intellectually, it's not level, you know, that even during your residency or in medical school, you encounter certain acts of racism. But when you rise to the top of your profession, you sometimes have blinders on you're monolithic, and you're focused. You're looking at the patients , the wellbeing, and you just have a hard time grasping that because the color of your skin, your cultural orientation, you could be treated so despicably, but it happens. And it happens frequently. So I, I think that when they come to me, when it evolves, the doctors are always in a bad space. I've never had a situation where doctors are saying, Hey, just thinking about this, what do you think? I'm not that kinda lawyer. I'm a lawyer. Who's poised a fight. Particularly if I feel that I can make out the case, the doctors don't have to spend a lot of time persuading me, or convincing me that they've been discriminated against. I know that it happens. I could see what happens, where we spend time is proving. It. It's so difficult to prove something that's insidious, something that is systemic. Something that can be tolerated as part of a system and hospital network offices. It's difficult to prove because gone are the days where people use the N word , but there's something far more dangerous. It's treating you in a way where, you know, you can't win and you can't do what you love to do best, which is taking care of people, treating people and saving lives

Speaker 2:

Sydney , um, to try to give our audience some context or of the magnitude of this issue. I know that there are about 5% of active physicians who identify as black or African African American. And unfortunately that's an increase of only about two and a half percent since 1910. But do you have any idea, for example, if you take it down to the medical student level about how many black and brown medical students are likely to be expelled from a training program.

Speaker 3:

Yeah. I mean , it's, it's a pervasive problem, right? So we talked about the pipeline and wanting to increase the pipeline because we know what the outcome is and the benefit on the health equity side for patients. But you first got to get to the point to getting to college and getting college financed and paid for right. Then you gotta get through that, then you gotta get through medical school. And what we're seeing is that medical school and post medical school , um, an incident rate where black and brown medical students are 31 times more likely to be expelled from the training programs or to drop out on top of that. And aside from that statistic, due to the fatigue of having to navigate some of the discriminatory behavior that exists in that particular environment. And you also look at statistics that go with that, of those black and brown , um, medical students and fellowship trained students that are receiving the recognition into the , um, you know, the elite societies for academic achievement. And there was a study that came out about that. And the rate at which they are admitted into those honor societies is far less their white counterparts who have lesser credentials being able to be accepted into those. So it's just, you know, the statistics keep bearing it out

Speaker 2:

Well , um, that that's helpful to hear that information, although it's, it's very sad to hear it at the same time as the two of you have represented physicians and , uh, who have found themselves in this predicament. Uh , do you have any , uh, advice that you have , uh, been able to give them or advice that you would give others? So they perhaps would not , uh, face the same type of situation or how should physicians respond when they're confronted with this, or, and on the other hand, I also would be curious if you have any advice for counsel , either counsel , other counsel , who represent physicians in this predicament or counsel who are representing medical staffs or hospitals who wanna make sure that there's a fair process?

Speaker 4:

The advice I would give first to physicians to black and brown physicians would be to recognize the issues when they come up. Sometimes we have our head in the stand , and sometimes we, we see microaggressions macroaggressions, and we just overlook them because we're tired of that fight. And we wanna focus on medicine, but when it's taken to the natural conclusion, when you don't talk about it, when you don't bring it to your supervisor or to the HRS attention, and you could do it in a very professional way, not a way where you're moaning groaning, but professional way, this is what happened. This is what I'm sensing. Take it very seriously because would only escalate. Sometimes there are people who legitimately make mistakes and race doesn't come into play, but typically your instincts follow your instincts. If your instincts tell you you're treated , be being treated differently because of the color of your skin, because your national heritage, because your cultural differences, because your gender, it is usually real. This is something instinctively that you know will happen. That's number one, number two, have on speed dial. And I hate to even say this just as we have doctors, I have doctors on speed dial. I need to know that I can go see a doctor. You need to have a lawyer that you can consult when these things happen, because you need to protect your license. That's second, thirdly, I would say continue to be no matter what, which is what most doctors are , um, who are in this situation, excellent employees. If you're an employee, excellent doctors continue your course, because all it takes in these cases, these are very difficult cases to , to win is for a race neutral or stated differently, a business justification for them to do what they do most jurisdictions are at will states , meaning you can get , you can be terminated for some reason or no reason, but they can't do it based on race. They can't do it based on you being in protected class. And that's very and engaging in protected activity. They can't do it based on you being black, you being Latino , you being a woman, you being over 40 in a protective class, you having a disability. That's illegal. The law says they can't do that, but it's done every single day. So be mindful of your environment. Don't be paranoid. Do your task be that great employee. Don't give them a business justification to get rid of you. What would a business justification be ? Well, obviously in any environment, if you're chronically late, that's a business justification because in business, you, you, in some businesses, it might be more tolerable, but in businesses when you're in the business of, you know, treating patients and all that being chronically late, I'm not saying would do that, but that would be a business justification. Another thing not taking care. One of the issues that I've seen, where doctors don't , um, do the recordings of, you know, don't keep proper medical records. They get to it . They're so busy. And by the time they get to it, they might forget. And so the records aren't , don't reflect the actual care that the patient has had things of that nature that you can control. Stop, take a moment and do those things because they get nailed. I see more doctors get nailed for little infractions. And as a trial lawyer, I can take something like that and have a whole case centered around that dereliction . So don't give , uh, no go, no , no one understand where you are. No one understand your environment. If you're in a community then where you're the first African American doctor period, understand you're in a community where you're the first African American doctor period. There's still some people that don't want , um, black physicians to touch them. I saw this in the eighties. I saw it in the nineties. And today there are some doctors who say they experienced that to understand your environment to practitioners. I would say, don't, don't look at these doctors like they have horns. Don't force them to go through in painstaking detail initially that they, that they've been discriminating as because understand the nature of discrimination and racism in today's environment. It's insidious. It's very slick. It's systemic, it's systematic. And you must understand that as a practitioner. And then you look for ways of proving that because the evidence is there. You just have to be creative in uncovering that evidence. And for the , the doctors understand that every case may not be able to be proved. So, so it's, it's it's doesn't mean it didn't happen. It doesn't mean you're not going through what you're going through. It's just that you can't prove the case. And in a court law, you've gotta be able to prove it with evidence. You can prove with circumstantial evidence, but the there's a lot of evidence that you have to start thinking about when you see it, jot it down, write it down because you're not gonna remember. At least if you're like me, no matter how old or young you are in a week, you're gonna forget the details. Go home, write it down, write down what's happened to you. And if you see a pattern developing, then you can look in your notes and say, oh my goodness, that happened last , that that's happened for the , the past four months. Where was I? So don't have your head in the sand. Those would be the , the helpful tips that I would give to doctors and practitioners, lawyers who are defending and representing the doctors. You have to be very creative. You have to be very tenacious. You have to love and have passion for this because oftentimes you're fighting difficult battles. The likelihood of success is not high, but my goodness, when there is success, it can make such a difference. One fight can reverberate and can have an impact on an entire community, one battle. And sometimes you might lose the war, but you win the battle. Sometimes you win the battle and lose a war. So the key is to fight. And for doctors to understand, sometimes you get to a point in your life. If you don't fight for something, you'll stand for anything. And that, that anything that you might stand for can break your spirit. And it bleeds in to what you love to do, which is representing patience and saving lives.

Speaker 2:

Oh , thank you for that. Uh , CK, Sydney , uh, one of the words that stood out for me in the comments that CK just made was systematic. And I wondered if you might have any comments, because I know you worked extensively in the regulatory side of healthcare about perhaps opportunities to improve within our healthcare system, that would have a positive impact on decreasing the opportunity for this , these types of problems to arise. Uh , could you comment on that perhaps about, you know, from the standpoint of , uh, either reform policies, procedures , uh, accreditation, could you give a comment?

Speaker 3:

Absolutely. And I think this goes to your last question in a way too , Aita looking at it for advice to hospitals and health systems and medical staffs. Um, because I do do that work on both sides of the equation, but the system does need to get fixed. Um, it is not enough to check the box and appoint yourself, a chief equity officer , um, in name you've got to get down to the bottom and really do the work from a structural perspective. Um, a lot of times it starts by simply a fundamental getting educated as to where the biases are in the system itself. And there are some systems health systems that have made some significant steps in sitting down and having those conversation, Brigham and women's , um, center in Boston, sat down collectively as an academic department and looked for a problem within the system that they could specifically identify and address and take action on. Um, but it requires oftentimes some of this is not , uh, mal intentioned. Some of it absolutely is. Um , but in order to get against the ignorance, you have to do the education first and then you have to put in place the protections. And so those are areas that I think that are right for reform. Legally, we have this divide between an employment context, an employment discrimination, and a medical staff discrimination, and from a legal theory perspective , um, in the past that used to be more distinct because we haven't had that bleed over , um, into non-employed and employed physicians , um, that we have now with the majority of physicians being employed, which makes it much easier from a discrimination perspective to cross that hurdle of having a cause of action that you would have because of the employment or now extended into just a contractual relationship. And that's where a lot of physicians used to get stung . So that's gone away and that those , uh, distinctions are being eliminated. Um, so continued reform and looking at that area, but the two things that speak to institutions are their CMS participation and then also their accreditation. And that's typically the things that are Sacra saying to them. And right now, while there is an abundance of protection for patients and discrimination against patients and the CMS guidance, there is not that same protection for , um, providers working at an institution or requirements and obligations on the institution to act against discrimination. So revision to the CMS participation guidelines, perhaps for institutions, the joint commission has started to chisel away in their accreditation standard by putting in place some health equity standards. Um, it is a initial pass at it. Greater work is needed to be done in my opinion on the direction so that it doesn't become a check the box. But I can tell to hospitals, not just looking at an advising you to take a look at it from a defensive perspective, but it it's coming to you <laugh> one way or another. So you might as well go ahead and get ahead at of it and handle it in a way that benefits your institution and your, your , um, um, your institution as a whole, because it's a huge opportunity for you to set yourself apart from others on that front. And then I do think additional in other areas of our form , looking at, for example, the healthcare quality improvement act requirements , um, you know, as we all know, as healthcare practitioners, those were passed a long time ago. There are immunities that are granted as a result from the HWA being put into place. But the club that hospitals have against physicians is the national practitioner data bank , um, reporting. And then that puts the physician with their , their backup against the wall. And they have no choice, but to defend themselves and these circumstances, because otherwise it means the end of their career. I would suggest that we may see a need to eliminate some of the immunities that HWA grants, because some of the original reasons for putting those immunities in place, I E institutions being concerned that they would a plaintiff's attorney , such as CK might come and get that data or information in discovery really are kind of going a away a lot. And a lot of this problem , um, also that CK and I are describing, one of the defense mechanisms for the hospitals is to hide behind a theory of negligent credentialing. They say, I have to take this action against this position for the professional competence, because otherwise we could institutionally get sued. And there's some case law that's not necessarily , um, directly on point, but that's used to hide behind. So I think we can anticipate the reform on the Hequa immunity side and the negligent credentialing side also is another important area. In addition to state law reform on peer review and licensure requirements that mimic those that I've just talked about.

Speaker 2:

I wanna say to our listeners today and to my two knowledgeable and experienced, I guess , Sidney Welch and CK Hoffler that this time with you has gone by so quickly as we've been discussing , uh, about the topic and an epidemic of racism and peer review killing access to black and brown physicians. I wanna encourage our listeners to go to the special issue, read the article and read the other articles. And I'm not just saying this because I was a co-editor, it's really an excellent selection, very provocative and stimulating topics as this discussion today points out , uh, it really gives you a lot to think about. And also what I appreciate is that you've also given some, some recommendations about how we can address and improve this situation. Uh , as before we close off, I wanna give you each one minute or less to just have a closing comment that you'd like to share with our listeners today, who are primarily healthcare lawyers about what they can do now that they have heard today's discussion Sydney and CK.

Speaker 4:

Okay, well, let me start. If I could. Um, what I would say is this is a struggle. It's a fight and we have to keep fighting, pick your cases , understand that every case is difficult. They may not all be one , but sometimes you can win a battle and lose the war. And as I said, you can lose a war and win the battle. We have to, as practitioners, as lawyers, be passionate about these issues, the only way you can bring about change is through fighting. And there are many ways to fight. You can fight systemically, you can fight regulatory, but sometimes you just gotta get in a courtroom and fight, pick those cases, judiciously and pick the ones that you feel you can prove because they're , they're very difficult cases to win, but they certainly are worth the fight. So again, I wanna thank everyone I made to thank you for all that you do. And, and , um, just for giving us this opportunity to present, to talk a little bit about our paper and something, and the , a HLA for something that we have so much passion for. And so the doctors fre not keep on doing what you're doing. We need you in this community, the world needs you, and don't ever look back, just look forward.

Speaker 2:

Oh , thank you, CK . And now Sydney , I'm gonna give you the last word.

Speaker 3:

Well, I'll take it. Um, and I'm gonna tie it back to health equity because I think that's an important point to end on and come full circle too. I think it is important not to lose sight of the big picture in all of this. And I think everybody, no matter what side of the equation they're on at the end of the day should agree that the importance of positive health outcomes is really what everybody in the healthcare system should be aiming toward. And in that vein, the statistics and the science shows that we can't afford to lose not one black or brown physician in our healthcare community, not one. And the science that ties to that is what every , anybody who has heard the story about Serena Williams and her identification of her , um, blood clots, and being able to relay that to the professionals and have to advocate for herself to avoid death when she was not being listened to as a patient. The studies that show that the mortality indices for black newborns in the ICU are cut in half . And I want that to register for a minute half when black physicians care for them, the cardiovascular gap between black and white men can be reduced as much as up to 19% when the black patient is working with a black physician and the statistics go on and on. So I think it's important that at the end of the day, that we tie it back and remember that importance of health outcome and the importance of keeping and supporting black and brown physicians in the system is in all of this.

Speaker 2:

And that concludes our program today. I'm Al MEA Cooper. I've been your moderator and our , uh, guest today and authors of the article and epidemic of racism in peer review , killing access to black and brown physicians, Sydney Welch, and CK Hoffler.

Speaker 1:

Thank you for listening. If you enjoy this episode, be sure to subscribe to a H L a speaking of health law, wherever you get your podcasts to learn more about ALA and the educational resources available to the health law community, visit American health law .