Federal court lets Texas peer review ruling stand

Although a federal judge knocked down a large portion of a multimillion-dollar verdict to a physician in an unlawful peer review case, he allowed the ruling to stand, which doctors say is significant because peer review cases are difficult to prove in court.

Nearly two years after a federal jury awarded Dallas cardiologist Lawrence R. Poliner, MD, $366 million in a defamation lawsuit, the court upheld a jury's findings that the hospital and its physician staff improperly used the peer review process to suspend the doctor's privileges.

The decision leaves the amount of damages up in the air, although the judge did not toss out the award entirely. The U.S. District Court for the Northern District of Texas in March upheld the defamation claim against Presbyterian Hospital of Dallas, which has $70 million in damages attached to it, as well as the possibility for another $90 million in punitive damages for emotional distress. But for now, the court has ordered mediation between the two parties to determine an appropriate monetary award.

The court affirmed the basis for the jury's decision that the hospital's doctors had violated medical staff bylaws, defamed the physician and interfered with his practice when it summarily suspended him without enough information to determine if he posed a danger to patients. "There is no doubt the jury awarded ... a tremendous amount of money in damages ... influenced by defendants' unwillingness to acknowledge their own wrongdoing," Judge Jorge A. Solis noted.

Doctors have varied opinions about the message the ruling sends and the impact it could have on peer review.

Dr. Poliner, who now practices at Medical City Hospital in Dallas, said the court reinforced that "doctors are absolutely protected as long as they conduct peer review in good faith." He said peer review is critical to the medical profession and that physicians need an unhampered environment in which they can discuss patient care.

According to Michael Logan, Dr. Poliner's attorney, "The judge has said that as a matter of law the jury's findings of no peer review immunity will at least at this level stand up, and the court agrees."

But attorney Tom Leatherbury, representing Presbyterian Hospital and its doctors, disagrees. "We are very concerned about the chilling effect this verdict could have on peer review," he said.

For the process to work properly, doctors and hospitals must be unencumbered by such lawsuits, he said. Leatherbury said doctors and hospitals are typically granted immunity under state and federal laws so they can investigate any potential danger to patients. Lawsuits such as this one, he said, raise questions "about meaningful peer review taking place."

If a resolution is not reached at mediation, the court can enter a judgment against the hospital staff, at which time Leatherbury said they would consider an appeal.

A question of fairness

The peer review of Dr. Poliner began in May 1998 after nurses in Presbyterian's cardiac catheterization lab run by the physician made reports that one patient had died and one had a stroke after the doctor performed procedures, trial records stated. After a preliminary review of other patient records, the director of the catheterization lab informed the chief of cardiology of the potentially harmful care provided to patients by Dr. Poliner.

Dr. Poliner said he was forced to sign a letter of abeyance of his privileges in the cath lab until a committee could review his cases. If he didn't sign it, he would have faced immediate suspension, court documents show.

Dr. Poliner denies the allegations and said he was not given adequate notice to be able to respond to a committee review of more than 40 patient cases, after which the committee summarily suspended his privileges. Dr. Poliner said he also was denied requests for an outside review of the patient records, legal records showed.

After a medical staff hearing in November 1998, Dr. Poliner's privileges were restored. But in January 1999, Dr. Poliner was denied an appeal to remove the suspension from his record because the medical staff unanimously concluded that it was justified.

But in late March, the court concluded, as the jury did, that Dr. Poliner was threatened with suspension if he did not agree to the abeyance, and the hospital staff acted with malice when it did not offer Dr. Poliner any less severe options. The hospital staff's "unwillingness to afford Dr. Poliner any opportunity to be heard or to consult with an attorney supports the jury's findings that the suspension was not undertaken after adequate notice and hearing procedures were afforded," the ruling states.

Because of the abeyance, Dr. Poliner's referral base lessened and his career was harmed, the court said. "Clearly this evidence supports the jury's finding that the suspension was not undertaken in the reasonable belief that Dr. Poliner posed a present danger to the health of his patients," Solis wrote.

Peer review and organized medicine

Because doctors see peer review as an important part of patient safety, they have kept a close watch on cases involving the review process. "Anytime you have a decision like this, you are going to have an effect on the willingness of physicians to perform peer review," said Texas Medical Assn. general counsel Rocky Wilcox.

The TMA did not take a position on the lawsuit but supports peer review that is exercised in good faith, he said.

In the interest of promoting cooperative efforts and health care decisions between doctors and hospitals, in the past the TMA has invited both parties in cases like Dr. Poliner's to visit with them on the issue, Wilcox said.

American Medical Association policy encourages physicians to participate in peer review and advocates that the process be conducted "truthfully." AMA policy also cautions that to preserve the process and protect it from litigation, "peer review data must be kept confidential."