ATTORNEY ON LAW
Want to Know if Peer Review Works for Members? Value of peer review process is borne out in case that played out over two years in downstate New York.
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Lance Plunkett, J.D., LL.M.
Council on Ethics member recently reported that an Association member was refusing to participate in a peer review case. Naturally, such refusal will lead to a referral on ethics charges and the likely expulsion of the doctor from membership in the tripartite system. The case will undoubtedly end up in court and in the Office of Professional Discipline (OPD). What a great bargain—trading your membership for a lifetime expulsion, a malpractice lawsuit and an OPD action. As an old song says: “Who could ask for anything more?” Some members see peer review as an imposition or attack rather than the binding arbitration that, win or lose, prevents malpractice litigation, where damages can far exceed the dental fees at issue in peer review—and in a malpractice case, the patient won’t pay any outstanding fees owed either to get into court. Does peer review really work? A recent court case decided on Dec. 15, 2020, (Klein v. New York County Dental Society) says it works just fine. A summary of the court case and a good explanation of peer review follows, based primarily on the court’s own words. How the Case Unfolded On Feb. 2, 2020, the plaintiff, proceeding pro se (that is, representing herself), commenced a small claims action for breach of contract and “unpaid business practices.” (Note: This filing was in response to a peer review case that had concluded in 2019.) In this most recent action, the plaintiff was seeking $2,200 in damages from the New York County Dental Society.
6 APRIL 2021 The New York State Dental Journal ●
A virtual trial was held on Dec. 7, 2020. The plaintiff and her witness, an attorney, testified at the trial. Through her testimony and documentary evidence introduced at trial, the plaintiff established that she received treatment from a dentist for temporomandibular joint dysfunction (TMJ), but was unhappy with the results and sought a refund from that dentist in the amount of $11,030. To that end, the plaintiff agreed to resolve her complaint with the dentist through binding arbitration before a panel established by the New York County Dental Society and governed by the rules and procedures of the New York State Dental Association. In connection with this arbitration proceeding, the plaintiff executed an Agreement to Submit to Peer Review (the Peer Review Agreement). The Peer Review Agreement provided, in relevant part: 1. This is a legally binding contract to enter into binding arbitration as an alternative dispute resolution process for the purpose of finally resolving the stated dispute between the parties. Each party to this contract specifically agrees that they waive the right to subsequently sue the other party, on the facts or issues that are the subject of this binding arbitration before the Peer Review Committee in any court action or proceeding, including but not limited to any malpractice action or collection action, except to bring an action or proceeding to enforce this binding
