Law Feature - October 2008
Tex Med . 2008;104(10):27-32.
By Crystal Conde
Being the subject of medical peer review can be emotionally draining and stressful. Unfortunately, the nature of peer review often conjures up negative perceptions among many in the medical field. Physicians don't enjoy having their quality of work questioned.
But Texas Medical Association President Josie Williams, MD, says the peer review system should be redesigned to improve standards of patient care, not target and destroy the reputations of hardworking physicians.
"There was a negative response from the profession because none of us like to admit we've made an error, and none of us want our colleagues to call our errors to our attention," she said. "And yet the culture of safety says that we'll vigorously pursue those types of situations where we could do better and improve quality of care. Peer review shouldn't be about who; it should be about why, when, where, and how do we prevent it from happening again, or do we need to do something about it."
TMA's policies regarding medical peer review advocate a fair, reasonable system; the association condemns peer review abuses that harm physicians and have negative ramifications for patient care. (See " TMA Supports Fair, Effective Peer Review .")
When those conducting peer review misuse the system, physicians have legal recourse. The Texas Medical Practice Act and the Health Care Quality Improvement Act (HCQIA) of 1986 require health care entities, such as hospitals, medical societies, and HMOs, to follow certain standards and procedures when evaluating a physician's delivery of care.
Doctors subjected to unwarranted peer review action can also sue and seek relief in court.
Health care entities following these statutes, however, are immune from damage liability, a protection Congress felt was necessary to give medical professionals an incentive to participate in peer review.
Recently, the 5th Circuit Court of Appeals granted federal immunity to the peer review defendants in Lawrence R. Poliner, MD v. Texas Health Systems, James Knochel, MD . In this eight-year old case, the appeals court reversed a judge's decision to award the Dallas interventional cardiologist more than $33 million. The original jury verdict exceeded $360 million in damages - $90 million of which were for defamation for alleged mental anguish and injury to the physician's career and reputation. The appeals court found that the defendants satisfied HCQIA's standards in their peer review actions, giving them immunity from monetary damages.
Dr. Poliner sued Presbyterian Hospital of Dallas, Dr. Knochel, and other physicians involved in his peer review in federal district court in 2000. Dr. Knochel oversaw the peer review and was chair of the hospital's Internal Medicine Department.
Dr. Poliner brought federal and state antitrust claims, along with tort and breach of contract claims, against the defendants. A lengthy legal battle ensued, the result of which has significant meaning for those administering peer review and the physicians under evaluation.
It all began in 1998 when the treatment of one of Dr. Poliner's patients came to Dr. Knochel's attention. In addition, the Clinical Risk Review Committee at Presbyterian Hospital of Dallas previously referred to the Internal Medicine Advisory Committee three patients' cases that called Dr. Poliner's medical judgment into question.
Upon review, the advisory committee recommended a temporary restriction of Dr. Poliner's cardiac catheterization lab privileges for up to 15 days. Dr. Poliner agreed in writing after he was told he would receive a summary suspension of all his privileges if he didn't agree to the penalty.
In the meantime, an ad hoc committee of six cardiologists reviewed a sample of patient cases and found some of them involved instances of delivery of substandard care. After extending Dr. Poliner's restriction for another two weeks, with Dr. Poliner's written agreement, the Internal Medicine Advisory Committee allowed him to respond to the ad hoc committee's review. The advisory committee ultimately agreed that Dr. Poliner's cardiac catheterization lab and echocardiography privileges should be suspended.
Dr. Poliner appealed his suspension to the hospital Hearing Panel. The panel found the suspension justified based on the information available at the time, but recommended that Dr. Poliner's privileges be reinstated with monitoring. Dr. Poliner further appealed to the hospital's Committee on Professional Affairs, which concluded he'd received the procedural due process outlined in the hospital's medical staff bylaws. The hospital's Board of Trustees upheld the Hearing Panel's decision.
Having exhausted his options for recourse within the hospital system, Dr. Poliner sued in May 2000. In 2003, the federal district court issued a partial summary judgment that the hospital followed the HCQIA requirements, thus was immune from paying damages for the suspension. However, the court said a jury would have to decide if the hospital had the same immunity when it came to the initial temporary restriction and its extension.
The court questioned whether Dr. Knochel's threat to suspend Dr. Poliner if he didn't agree to the restriction invalidated Dr. Poliner's consent. Karin Zaner, JD, an attorney representing Dr. Poliner, says the court found the restriction and its extension may have effectively been a summary suspension due to coercion. If that was the case, the court concluded that questions remained as to whether the defendants satisfied HCQIA's standards.
The hospital's medical staff bylaws allow a summary suspension when a physician has posed a "present danger to the health of his patients." Dr. Poliner argued he posed no such danger and maintained the hospital suspended him because it viewed his solo practice as a competitive threat.
Both HCQIA and the Texas Medical Practice Act provide immunities for peer review activities. The state law offers immunity from liability to those involved in peer review if they act "without malice" and "in good faith."
HCQIA provides peer review immunity if the professional review action is taken:
- In the reasonable belief that action furthers quality care;
- After a reasonable effort to obtain the facts of the matter;
- After adequate notice and hearing procedures are afforded to the physician (with certain exceptions); and
- In the reasonable belief that the facts warrant the action.
Ms. Zaner says the first hurdle they had to clear at trial involved proving to a jury that the actions in Dr. Poliner's peer review were malicious. The doctor contended Presbyterian Hospital of Dallas suspended him because his solo practice competed with the hospital's cardiology groups. Ms. Zaner says the next hurdle required Dr. Poliner to show the peer review committee failed to meet HCQIA's more comprehensive standards for immunity.
After the jury heard witness testimony, examined evidence, and made factual findings in the case, it determined the defendants weren't entitled to federal or state immunity. Jurors awarded Dr. Poliner and his professional association more than $360 million in damages, $90 million of which were for alleged mental anguish and injury to career and reputation on Dr. Poliner's defamation claims and $110 million of which were for punitive damages. The district court reduced the defamation damages to $22.5 million to comply with the law. Prejudgment interest added up to more than $11 million, making the total award more than $33 million.
Texas Health Systems and Dr. Knochel appealed the judgment. According to Thomas Leatherbury, JD, an attorney for the defendants, his clients thought they'd acted appropriately in conducting the peer review. They also objected to the size of the jury award.
On July 23, 2008, the 5th Circuit Court of Appeals reversed the federal trial court's judgment and ruled for the hospital and Dr. Knochel based on federal immunity for their actions. The appeals court's opinion reinforced that entities acting within the standards set forth in HCQIA are immune from monetary damages.
Dallas attorney Lewis Lefko, JD, has advised hospitals on bylaws and peer review matters. He says the Poliner case sends a message to entities conducting peer review that they should make every effort to follow their bylaws and treat physicians fairly.
"The Poliner case says that if you don't do it right, it may not look reasonable to a physician or to a jury," he said.
Mr. Leatherbury says the decision in this case emphasizes the importance of HCQIA's immunity provisions and underscores the balance Congress tried to strike between encouraging effective peer review and giving those who believe the process is being misused the chance to seek relief.
"This is the 5th Circuit's most thorough discussion of the federal immunity provisions and certainly brings law in the 5th Circuit in line with the law in all other circuits that have addressed HCQIA immunity in such detail," he said.
Ms. Zaner says the appeals court's reversal in Dr. Poliner's case isn't good news for physicians. He says it confirms that the system is unchecked.
"I think 95 percent of peer review in Texas is honest and fair, but you have people who will act maliciously in peer review when they know they won't get caught," she said. "The message for physicians is that this decision really means absolute immunity, and every physician … is affected. When you have peer review being conducted for reasons other than patient care, that hurts patients …."
Ms. Zaner says Dr. Poliner's legal team is considering options for appeal, one of which involves seeing if the U.S. Supreme Court will take the case.
Use as intended
Dr. Williams says the Texas Medical Practice Act and HCQIA address misuse of the peer review system by giving affected physicians due process.
"However, the executive committee of the medical staff must have the ability to call a spade a spade around insufficient quality of care. Practicing medicine is so complex that you're bound to make a mistake at some point in your career. What you hope for is a peer review system that will help you learn from that mistake and prevent it from occurring again. What distinguishes a profession from a trade is that a profession maintains the right to review the quality of each practitioner's work," she said.
She outlines the following as questions an effective peer review system should answer:
- How can this adverse event be prevented from happening again?
- Is there a deficit of knowledge that needs to be addressed?
- Is the deficit of knowledge a one-time event or a pattern of care that needs improvement?
- Are there operational issues that the organization needs to change to prevent the problematic behaviors or adverse events from occurring again?
Dr. Williams says she realizes the very nature of peer review traditionally has been punitive rather than a means to evaluate and improve quality of care. And she acknowledges that abusive peer review - for example, involving conflict of interest, restraint of trade, or sham review - does occur.
Patrick Kasperitis, JD, represented John Paul Schulze, MD, in his lawsuit against Humana Inc., two of its subsidiaries, a medical director, and an administrator in Nueces County District Court. In 2000, a jury awarded the family practitioner nearly $20 million after finding the defendants had conducted Dr. Schulze's peer review unreasonably, with malice, and had committed fraud and intentionally inflicted emotional harm on him.
Dr. Schulze cared for an estimated 700 to 800 Humana enrollees when the HMO placed him under peer review and subsequently deselected him from its network. Dr. Schulze maintained Humana wrongfully terminated his contract after he publicly complained about the HMO's mandatory hospitalist program.
Humana appealed to the 13th Court of Appeals in Corpus Christi, which dismissed the appeal when both parties reached a settlement in 2001.
Mr. Kasperitis says the outcome of Dr. Schulze's case sends a clear message to health care entities conducting peer reviews: "If you don't follow your guidelines, jurors will pound you."
"The real danger of not following the guidelines fastidiously is that the doctors will distrust the process," he said. "Then it becomes adversarial when it could be more collegial. Doctors right now don't trust peer review systems. They see them as a witch hunt. Peer review has the potential to be a really useful tool, but it has to be used as intended."
The protections provided under HCQIA to peer review committees are stout. Mr. Kasperitis says it's important physicians under review take the process seriously from the beginning.
"This is not a do-it-yourself project. Respond, and let them know you're taking it seriously. Then have qualified counsel help you," he said.
He also suggests physicians under review contact a physician colleague who previously served on a peer review committee to act as an advocate and help with navigating the process early on. Dr. Schulze did, and Mr. Kasperitis says it illustrated to some committee members how seriously the doctor took the process.
He says the jury found the physician advocate's testimony persuasive in underscoring that the HMO hadn't followed its bylaws.
"Perception can be reality. If the people on the peer review committee believe you're not taking the process seriously, they may make an interim decision that is really harmful to you and the patients based on what they perceive to be a cavalier attitude toward the process."
Ms. Zaner has some additional suggestions for physicians whose care has been called into question:
- Know your rights under the medical staff bylaws;
- Respond to every correspondence from the review committee;
- Take inquiries about cases seriously;
- Provide requested information;
- Get an attorney involved early;
- Make sure you're interacting with nurses and staff members in a respectful, constructive way; and
- Make sure your medical records are in order and well-documented in case you have to defend them.
"My advice to doctors is if they find themselves in this peer review pool, assume it's the deep end, and make sure they prepare for the process," Mr. Kasperitis said.
Crystal Conde can be reached by telephone at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by-email at Crystal Conde .
TMA Supports Fair, Effective Peer Review
The Texas Medical Association's House of Delegates adopted policies pertaining to peer review at TexMed 2007. The association says peer review protections should be limited to an evaluation of the quality and safety of patient care. TMA denounces use of peer review for non-patient care issues aimed at penalizing physicians for other business, financial, or administrative reasons.
Among the peer review resolutions adopted in 2007, Resolution 406 states that TMA will work to:
- Ensure that accused physicians are granted reasonable rights and due process for peer review and quality assessment efforts;
- Solicit member input and address issues related to misuse of the peer review process or "disruptive physicians" policies by health care facilities or peer review entities;
- Educate and inform members about the potential misuse of peer review; and
- End the use of "disruptive physicians" policies that are extended to non-patient care issues, such as economic credentialing, failure to support marketing or business plans of the hospital or health care facility, or are used as recourse because physicians have raised serious quality or patient safety issues regarding the facility and their practice.
Resolution 401 asks TMA to:
- Strongly condemn "sham peer review" and manipulation of medical staff bylaws by hospitals attempting to silence physician concerns for access to quality care at hospitals; and
- Aggressively advocate against "sham peer review," manipulation of medical staff bylaws and enforcement of such bylaws, and other tactics that chill or inhibit the ability of staff physicians to advocate for their patients.
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