By Sherri R. Katz and Robert S. Bennett
Recently, there has been much discussion in the medical community, as well as many articles written in medical newsletters and publications about the Poliner case and medical peer review. This article will attempt to address what the Poliner decision means to a practicing physician in Texas concerning medical peer review.
Background on Poliner case
In Poliner v. Texas Health Systems, No. 06-11235, 2008 WL 2815533 (5th Cir. July 23, 2008), the Fifth Circuit held that the Presbyterian Hospital of Dallas and three individual physicians for basically immune from money damages based on application of the federal Health Care Quality Improvement Act (HCQIA) immunity. The Fifth Circuit reversed the $33.5 million damage award to Dr. Poliner, a physician who sued after his privileges were terminated. The jury had originally awarded $360 million in damages, but this amount was later reduced by the trial court to $33.5 million.
Dr. Poliner was an interventional cardiologist with a solo practice at the Presbyterian Hospital of Dallas. While working in Presbyterian’s cardiac catherization lab, Dr. Polilner made a diagnostic error, missing the fact that a patient’s left anterior descending artery (“LAD”) was completely blocked. The fact that the blocked LAD was apparent on films and should have been caught by Dr. Poliner called his abilities into question, and thus began the peer review process of Dr. Poliner at Presbyterian Hospital of Dallas. In sum, the Chairman of the Internal Medicine Department asked Dr. Poliner to agree to a temporary restriction (abeyance) of his cath lab privileges pending investigation of the case, and explained that if Dr. Poliner did not assent, all of Dr. Poliner’s privileges would be summarily suspended. Dr. Poliner accepted the abeyance, which imposed a temporary restriction of his privileges in the cath lab for 14 days. Dr. Poliner, however, later contended in trial that this agreement was involuntary and amounted to a summary suspension for which he did not receive procedural rights.
In the abeyance letter restricting his privileges, Dr. Poliner was advised of the patients of concern and he was told that an ad hoc committee of cardiologists were going to be appointed to conduct a review and that he would have an opportunity to respond to any concerns raised. The ad hoc committee reviewed 44 of Dr. Poliner’s cases and concluded that he gave substandard care in more than half. On the 13th day of the 14 day restriction, based on the review of the 44 cases, the Internal Medicine Advisory Committee recommended additional reviews and an extension of the restrictions on Dr. Poliner’s privileges. Altogether, the restrictions on Dr. Poliner’s cath lab privileges were in place for approximately 29 days.
On the 29th day, the Advisory Committee met and recommended a suspension of Dr. Poliner’s cath lab and echocardiogram privileges. Dr. Poliner received a hearing concerning the suspension of his privileges five months later. Several years later, Dr. Poliner sued the chairman of the Internal Medicine Department, Presbyterian Hospital of Dallas, and other doctors who had been involved in the peer review process. Dr. Poliner claimed damages from the limited restrictions on his privileges, the extension of those restrictions, and the suspension of privileges.
The case proceeded to jury trial on the alleged damages incurred from the 29 days of limited restrictions on Dr. Poliner’s privileges. The jury found the hospital and the three defendant physicians were not entitled to immunity under HCQIA and Texas law, and the jury ultimately awarded Dr. Poliner $366 million in damages for defamation, mental anguish and punitive damages, which the trial court reduced to $33.5 million. On appeal, the Fifth Circuit reversed the district court, holding that the defendants were immune under HCQIA.
The Health Care Quality Improvement Act sets forth four requirements to obtain immunity for physicians and institutions participating in a peer review activity, which is called a “professional review action” in the HCQIA. The HCQIA provides immunity from money damages to participants in the peer review process. However, for the HCQIA immunity to apply, the peer review action must be taken:
1. in the reasonable belief that the action is in the furtherance of quality health care;
2. after a reasonable effort to obtain the facts of the matter;
3. after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures are enacted as are fair to the physician under the circumstances; and
4. in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3) above.
HCQIA applied to Dr. Poliner’s Case
In the Poliner case, the Fifth Circuit made an analysis of each aspect of the Poliner peer review under the four prongs of the HCQIA. The court did not seem to be persuaded by Dr. Poliner’s arguments that immunity was not warranted because he was not afforded full procedural rights and that the actions were taken because of anti-competitive reasons, not in furtherance of quality of care.
The Fifth Circuit court ultimately found that the actions by the defendants were taken “in the reasonable belief the action was warranted by the facts known after such reasonable effort to obtain facts.” The court joined other federal circuit courts in holding that the HCQIA reasonableness requirements are judged by an objective, rather than subjective standard.
Sham Peer Review
In the opinion of many physicians, the Poliner case is one of the most egregious cases of sham peer review in recent history. Many doctors hold the opinion that the original peer review process of Dr. Poliner involved the unwarranted summary abeyance of Dr. Poliner’s privileges, and that Dr. Poliner claimed in his lawsuit that the defendants “improperly and maliciously used the peer review process to summarily suspend his privileges, thereby causing damage to his interventional cardiology practice.”
Many believe that even though the Fifth Circuit ultimately overturned the jury verdict by granting immunity under the HCQIA, the jury verdict in the Poliner trial exposed and discredited a number of common sham peer review tactics in the trial itself.
The Fifth Circuit held that Dr. Poliner failed to rebut the presumption that the peer review action at Presbyterian Hospital complied with the HCQIA, and further held that the evidence “independently established” the actions complied with the statute. However, the practicing physician in Texas subjected to any type of peer review actions should be educated with the lessons from the Poliner case. Poliner reaffirms that in conducting what will be reviewed objectively for reasonable peer actions, participants, including the hospital, will continue to be immune from damage awards if sued by a responding physician. However, HCQIA immunity is not automatic, and requires strict adherence with the terms of the Act. Any physician facing hospital peer review should be mindful of the position of the courts regarding peer review and immunity, and remember that the HCQIA creates a rebuttable presumption that a peer review action is done for quality of care concerns, in favor of the hospital.