In 2006, a federal district court allowed to stand a verdict for $22.5 million in favor of a cardiologist who sued a hospital and a department chairman after a five-month suspension of his cardiac catheterization lab (cath lab) and echocardiography privileges. See Poliner: A Texas-Sized Credentialing Verdict for Physicians, at (http://www.medlawblog.com). In a highly-anticipated decision, the 5th U.S. Circuit Court of Appeals has overruled that verdict, holding that the hospital and individuals involved in the peer review process are protected from money damages by the Health Care Quality Improvement Act (HCQIA). Poliner v. Texas Health Systems, 5th Cir., No. 0-11235, July 23, 2008.
Dr. Lawrence Poliner, an interventional cardiologist with a solo practice at Dallas’ Presbyterian Hospital, came under peer review after a number of patient issues were brought to the attention of Dr. James Knochel, chairman of the hospital’s Internal Medicine Advisory Committee (IMAC). After Knochel was presented with four different patient issues in 1998, he consulted with various hospital administrators and IMAC members, and determined that an “abeyance” – a temporary restriction – of Poliner’s cath lab privileges was necessary to allow an investigation as provided in the Medical Staff bylaws. Poliner was subjected to an abeyance, and then an extension of that abeyance, while the investigation proceeded. Upon completion of the investigation, the IMAC unanimously agreed that Policer’s cath lab and echocardiography privileges should be suspended. Although Poliner utilized each internal appeal process available to him, each upheld the suspension, although his privileges ultimately were reinstated with conditions after five months.
In May 2000, Poliner sued Knochel, the hospital, and other physicians with roles in the peer review process. The defendants moved for summary judgment on multiple grounds, including immunity under the HCQIA. The district court analyzed the case as involving two separate peer review actions – the first consisting of the abeyance periods, and the second consisting of the five-month suspension. It entered summary judgment in favor of all defendants on the ultimate suspension, but denied summary judgment on the abeyance-related peer review process against the hospital, Knochel and two other doctors. That case was heard by a jury, which entered the “Texas-size” verdict referred to above, assigning monetary damages to Poliner’s state-law defamation claim. The defendants asked the district court for judgment notwithstanding the verdict (“JNOV”), which was denied. They then appealed to the Fifth Circuit, which reversed that denial and entered judgment in favor of the defendants, ending a 10-year saga of medical credentialing and peer review disputes.
The Fifth’s Circuit’s decision was based on a detailed analysis of the application of HCQIA to the facts of this matter. Congress passed the HCQIA to “improve the quality of medical care” by granting limited immunity from lawsuits for money damages to participants in professional peer review actions. In order for that immunity to apply, a “professional review action” must be taken: (1) in the reasonable belief that the action was in 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; and (4) in the reasonable belief that the action was warranted by the facts known after a reasonable effort to obtain those facts. The Act includes a presumption that a peer review action meets those standards, unless that presumption is rebutted “by a preponderance of the evidence.” The Court then analyzed the “abeyances” imposed on Poliner under that criteria, and found that the participants were protected against monetary damages.
First, the Court found that Knochel’s imposition of the initial abeyance was taken in the reasonable belief that the action was in furtherance of quality health care. At the time of that decision, Knochel was aware of a number of recent patient issues involving Poliner; at the time of the extension of that abeyance, Knochel had become aware that a review of 44 cases indicated that Poliner had given substandard care in more than half. Based on those facts, the Court concluded that the defendants’ belief that restricting Poliner’s privileges during the investigation would further quality health care was objectively reasonable.
Next, the Court reviewed the totality of the circumstances, and found a reasonable effort of the part of defendants to “obtain the facts of the matter.” Poliner argued to the Fifth Circuit that at the time of the abeyance, there was insufficient evidence to label him as a “present danger” under the hospital’s bylaws. In one of the most interesting – and likely to be controversial – holdings in the case, the Court pointed out that immunity under the HCQIA is “not coextensive with compliance with an individual hospital’s bylaws.” Provided that a peer review process complies with the standards set out in the HCQIA, a failure to comply with a hospital’s bylaws does not automatically defeat a peer reviewer’s right to immunity from damages.
Third, the Court reviewed the procedural requirements imposed by the HCQIA to determine whether Poliner received the required adequate notice and hearing procedures. It cited an exception within the Act that allows an “immediate suspension or restriction of clinical privileges, subject to subsequent notice,” where the failure to impose such restriction may result in imminent danger to patients. The Court went on to find that the defendants were warranted in concluding that failing to impose temporary restrictions on Poliner may have led to that “imminent danger,” and that, therefore, the notice provided to Poliner regarding the abeyances was adequate to satisfy the HCQIA.
Lastly, the Court found that the abeyances were “tailored to address the health care concerns” that were being raised. The fact that the abeyances related only to the cath lab – leaving Poliner’s other privileges unaffected – made the restrictions reasonable.
According to the Court, Poliner failed to rebut the statutory presumption that the peer review actions taken were compliant with HCQIA. Because the defendants were therefore immune from money damages under that Act, the district court’s judgment was reversed and judgment was rendered for the defendants. While this particular long-fought battle may be reaching an end, questions related to the peer review process abound, including the confidentiality of peer review documentation in employment-related federal lawsuits, the interplay between hospital bylaws and the fairness of peer review processes, and how the Joint Commission’s revisions to MS.1.20 can best be utilized to affect the composition of a fair hearing committee. Healthcare entities, including both hospitals and physician groups, should be aware of these issues and of ongoing developments related to each, in order to effectively avoid unnecessary litigation and liability.
