Supreme Court asked to examine Texas peer review case

A Dallas cardiologist wants the U.S. high court to decide whether federal law is being interpreted to give peer reviewers absolute immunity.

By Tanya Albert Henry — Posted Jan. 5, 2009

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The U.S. Supreme Court could be the next stop for a lawsuit that peer reviewers have followed closely. A Dallas cardiologist is asking the high court, which only takes up a small number of cases it is requested to consider each year, to review his lawsuit claiming unlawful peer review.

The case has led physicians serving on peer review panels and hospital officials to worry that peer review immunity could be eroded. And it has given physicians who believe they were improperly peer reviewed hope for retribution.

It started when, in a rare move, a Texas jury in 2004 awarded Lawrence R. Poliner, MD, $366 million for his claim that Presbyterian Hospital of Dallas improperly suspended his privileges. Usually, judges cite protections for peer reviewers under the Health Care Quality Improvement Act of 1986 and throw such cases out before a jury is assembled.

In the first half of 1998, the Dallas hospital reviewed several cases that led to complaints raising concerns about Dr. Poliner's medical judgment and technical skills. In November 1998, a hospital hearing committee reviewed his suspension and found that it "should be upheld based on the evidence that was available at the time" but recommended that the physician's privileges be reinstated with monitoring, according to court documents.

In 2006, a trial court reduced the verdict to $30 million but maintained the hospital didn't qualify for immunity because it unfairly restricted Dr. Poliner without having enough information to know whether he posed a danger to patients. But in July 2008, the 5th U.S. Circuit Court of Appeals reversed the ruling, saying peer reviewers are protected as long as their decisions are made "in the reasonable belief that the action was in the furtherance of quality health care."

Dr. Poliner is asking the U.S. Supreme Court to look at his case to decide whether a court can exclude evidence of subjective motives when it considers whether peer reviewers had a "reasonable belief" that the action was taken to further health care quality, which HCQIA requires.

Peer review immunity

The petition also asks the high court to consider whether courts across the country have interpreted HCQIA in a way that renders state peer review immunity statutes meaningless and transforms the law's qualified immunity that Congress intended into absolute immunity.

"We're hoping the court does the right thing and takes this case, because right now there is absolute immunity for peer review," said Dr. Poliner's attorney, Karin M. Zaner, a director at Kane Russell Coleman & Logan in Dallas. "There need to be checks on the system. We will have bad-faith peer review if we don't have checks and balances. ... The way the law is right now, it really means it's open season on doctors, especially solo doctors."

Presbyterian Hospital of Dallas, in its court brief filed in December 2008, told the Supreme Court that the petition to take up the case should be denied because the appellate court ruling got it right.

"There has been no conflict in the circuit courts on this subject," said Tom Leatherbury, the hospital's attorney and a partner at Vinson & Elkins in Dallas.

The hospital's brief argues that Dr. Poliner's claim that court rulings have made state peer review statutes meaningless "makes no sense." The brief also says that peer reviewers do not have absolute immunity because there are ways under the law to defeat the immunity, and that there are a handful of cases in which physician-plaintiffs won.

"Congress made clear in the plain language of the statute and in the legislative history that courts should use an objective test, and that is what the courts have uniformly done. ... Petitioners should lodge their complaint with Congress, not with this court," the brief states.

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