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Constructive Fraud Suits May Be Filed by Victims of Sham Peer Review , according to the Journal of American Physicians and Surgeons

Physicians targeted by bad-faith peer review often rely on assurances that the review is done solely for the purpose of improving patient care, and that they will be exonerated if they present the facts to an impartial hearing panel.

“Unfortunately, in sham peer review the truth and the facts do not matter because the outcome is predetermined and the process is rigged,” writes Lawrence Huntoon, M.D., Ph.D., in the winter issue of the Journal of American Physicians and Surgeons.

Victims of sham peer review whose medical career is ruined by an unfair process carried out for anticompetitive or other malicious motives have few defenses and few prospects for recovery of damages, he states.

One possibly effective method, Dr. Huntoon writes, is to file a lawsuit for intentional or negligent fraud. A physician cannot obtain punitive damages on a breach of contract claim but can obtain punitive damages on a fraud claim.

One element needed to prove constructive fraud is violation of a duty to the complaining party, which might include remaining silent when a duty to speak exists.

The article summarizes ten examples of fraud, constructive fraud, and civil conspiracy in the setting of sham peer review.

“Knowingly and willfully making a misrepresentation on which a physician relies and is harmed as a result constitutes intentional fraud,” Dr. Huntoon concludes. “Retaining a knowledgeable and experienced attorney is a key to success.

The Journal of American Physicians and Surgeons is published by the Association of American Physicians and Surgeons (AAPS), a national organization representing physicians in all specialties since 1943.

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