Peer-reviewed doc wins $360M, then $33M, then $0

by • November 1, 2008 • UncategorizedComments Off on Peer-reviewed doc wins $360M, then $33M, then $01749

• The Gist: The good-faith behavior of the peer-review personnel played well to the court. The obvious concern for patient safety was also a large factor.

By Dan Clifford, publisher
© 2008 The Medical-Legal News

A recent appeals case, Poliner v. Texas Health Systems, 2008 WL 2815533 (C.A.5 Texas), overturned a district court case where a doctor had won $33 million after he was given hospital restrictions (an abeyance) for 29 days while a peer-review committee did an investigation on him. The district court jury had awarded him $360 million, but the district court lowered it to $33 million.
The doctor, Lawrence Poliner, was suspended for about five months after the restriction/abeyance period and after the peer-review body concluded that he had mishandled numerous procedures. According to the court record the committee “reviewed 44 cases, and concluded that Poliner gave substandard care in more than half.”
The spark that began the internal investigation was a heart attack surgery in which Poliner made a misdiagnosis. The heart patient later had grave complications and had to be treated by one of Poliner’s colleagues in order to save his life.
Poliner’s medical judgment was questioned in four other procedures and brought to the attention of the Presbyterian Hospital of Dallas’ clinical risk review committee. An investigation then ensued.
The district court found that the peer review committee members and hospital were immune from damages for the five-month suspension under the federal Health Care Quality Improvement Act (HCQIA), but the court allowed the question of immunity for the shorter restriction/abeyance period to go to a jury.
The lower court said a question existed as to whether Poliner had agreed to the abeyance period or whether it had been forced on him — thus creating a “summary suspension.” Poliner had argued that he was not a “present danger” to patients as was required, under hospital rules, for implementation of a summary suspension. The jury was not told of the peer review body’s findings, however.
Poliner’s case rested on defamation, unfair trade practices and several torts. Poliner had lost about $10,000 in actual income during the short restriction period.
The jury found the doctor had suffered defamation and related mental anguish, and awarded $90 million in defamation damages, $110 million in punitive damages and $160 in other damages. The district court ordered a remittitur of damages, however, fixing damages at $33 million.
The appeals court, in reversing the judgment, essentially held that the HCQIA is strongly concerned with patient safety and said: “We conclude that, as to both peer review actions [the short 29-day abeyance period was implemented in two stages], the belief that temporarily restricting Poliner’s cath lab privileges during an investigation would further quality health care was objectively reasonable.”
The court also said that HCQIA does not concern itself with hospital bylaws, as argued by Poliner, but “national standards.”
The court pointed out that peer-review committees may sometimes be wrong, but so long as any investigations are done in the interest of patient safety, reviewers are immune from money damages. The reviewers need only make a “reasonable effort to obtain” the facts.
And to explain HCQIA a bit the court reiterated that peer review immunity is only for money damages. “The doors to the courts remain open to doctors who are subjected to unjustified or malicious peer review, and they may seek appropriate injunctive and declaratory relief in response to such treatment.”
Because the appeals court tossed out Poliner’s case, it did not need to address the issue of why the jury awarded such large damages.

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