Texas Supreme Court Decision Gives Physicians More Protection Against "Sham" Peer Review
Law Feature — August 2015
Tex Med. 2015;111(8):63-69.
By Joey Berlin
On Nov. 1, 2011, Miguel Gomez, MD, found himself on the spot, launching an impromptu defense of his practice.
According to claims in court documents, the Houston-area cardiothoracic surgeon watched at a system-wide meeting that day as Memorial Hermann Memorial City Medical Center — where he'd been practicing for more than a decade — made it a point to publicly impugn his reputation.
In front of 30 or 40 of his colleagues, according to Dr. Gomez, a fellow thoracic surgeon at Memorial Hermann presented data and statements intended to cast Dr. Gomez's surgical skills in an unfavorable light, including distorted data related to his patient mortality rate.
An alleged smear campaign against Dr. Gomez — a "whisper campaign" he says he was unaware of before the meeting — had raised its voice significantly.
Dr. Gomez says he stood up immediately and called the data false and invalid — numbers that didn't have the Society of Thoracic Surgeons' (STS') gold-standard stamp of approval.
"It was very difficult. Everyone in the room knew who this was directed at," Dr. Gomez said. "And it was a low point in my career, no doubt."
But an opinion the Texas Supreme Court issued in May is a high point, not only for Dr. Gomez but also for other physicians who believe business competitors or a hospital's administrators are using every means available to destroy their reputation. The high court's decision essentially upheld an earlier Harris County District Court decision allowing Dr. Gomez to obtain key documents that he believes will prove the smear campaign's existence.
TMA Supports Dr. Gomez
A few months after the November 2011 meeting, Dr. Gomez resigned his privileges at Memorial Hermann. He then sued the Memorial Hermann Hospital System, an affiliated physician network, Memorial Hermann Memorial City Chief Executive Officer Keith Alexander, and surgeon Michael P. Macris, MD, in Harris County District Court for business disparagement, defamation, tortious interference with prospective relations, and improper restraint of trade. As part of that suit, Dr. Gomez attempted to compel the release of what Memorial Hermann claimed were medical peer review documents. Dr. Gomez believed the records would provide evidence of the smear campaign.
Robert Swift, an attorney for all defendants, did not respond to Texas Medicine's request for an interview. Memorial Hermann told Texas Medicine the system would not comment because of the ongoing litigation.
Medical peer review records are generally confidential, but the Texas Occupations Code allows for an exception to require disclosure if a judge finds that an alleged peer review communication is "relevant to an anticompetitive action." Memorial Hermann's actions qualified as anticompetitive, Dr. Gomez claimed, because the hospital engineered its smear campaign to undercut his surgical business as he prepared to transition some of it to a new, competing hospital.
Accepting the defense's contention that all the documents at issue belonged to medical peer review committees, the district court reviewed the privileged documents and ordered the hospital to produce many of the records.
After that order, Memorial Hermann took its case all the way to the Supreme Court of Texas to keep the records confidential. When that happened, Dr. Gomez approached the Texas Medical Association and its Patient-Physician Advocacy Committee for help. The committee heard from both sides before TMA filed a friend-of-the-court brief supporting Dr. Gomez's case.
The Supreme Court's decision essentially upheld the district court ruling, compelling disclosure of most of the peer review documents the original decision ordered for release.
"It was a very important win for myself and for all doctors, I believe," Dr. Gomez said.
The high court's decision to uphold the exception and allow release of the records was one that Susan Pike, MD, called "spectacular from our standpoint." Dr. Pike was chair of TMA's Patient-Physician Advocacy Committee when Dr. Gomez sought the committee's help.
"Peer review serves a very important function for physicians, and it protects those physicians participating in the peer review process as well as the physicians who are being reviewed," Dr. Pike said. "And remember: Peer review isn't meant to be a smear campaign or a witch hunt. It is meant to evaluate and to improve the care that we provide the patients."
A Soured Relationship
Dr. Gomez practiced at Memorial Hermann Memorial City Medical Center from 1998 to 2012, at different times holding the titles of chair of the general surgery/cardiovascular section, chair of the Department of Surgery, and director of robotic surgery. According to Dr. Gomez's court filings, he pioneered robotic-assisted heart surgeries in Houston.
The robotic-assisted procedure "eliminates the need to crack open the patient's sternum in favor of much smaller entry ports for the robotic surgical tools," and led to better outcomes, quicker recoveries, and shorter hospital stays for patients, according to Dr. Gomez's court filings.
Dr. Gomez was the first surgeon in Houston to perform a robotic double bypass surgery, according to the filings, and Memorial Hermann used his specialized abilities as part of its marketing efforts in the West Houston and Katy communities for years. The hospital spent "significant amounts of time, energy, and advertising dollars" promoting Dr. Gomez and the robotic-assisted procedure, Dr. Gomez claimed.
But Dr. Gomez says management and operational changes at Memorial Hermann brought a decline in patient care at the hospital, and Dr. Gomez began making plans to move his surgical procedures to Houston Methodist West Hospital, which would open in 2010.
"Memorial Hermann, in my view, was putting profits above patient care with this change in leadership," Dr. Gomez said. "And when those things affected my patients, I was speaking out. And because I was taking a strong stance on these quality issues that I thought were more important than the monetary issues, they decided to make an example of me."
According to Dr. Gomez's lawsuit, the hospital then began its campaign to discredit him and "crush his ability to practice medicine" in the West Houston and Katy areas. Their efforts were allegedly geared toward creating the image that patients were more likely to die in Dr. Gomez's care as compared with other Memorial Hermann surgeons and that he was an incompetent physician. Dr. Gomez says hospital officials confronted him with the distorted data in late 2009.
The suit claims the defendants met with Dr. Gomez and gave him the option of either suspending his practice or agreeing to "active interventional monitoring under Defendants' supervision."
But Memorial Hermann's own peer review committee intervened, looked at the data, and determined that it "could not be relied upon for any legitimate purpose," court documents state. After the peer review committee weighed in, Dr. Gomez believed the matter had been closed.
But Dr. Gomez alleges in court filings that the defendants then began their whisper campaign against him, including "selective and improper dissemination of both the manipulated data and other misinformation within the medical community."
He didn't find out about the whisper campaign until after the November 2011 meeting.
"I thought it was put to rest," Dr. Gomez said. "And to find out that this was still going on, and that this was being shown to everybody, and that everybody was thinking this was STS-valid data was very disheartening."
Dr. Gomez resigned his privileges at Memorial Hermann in February 2012 and filed suit the following September.
Michael Patrick Doyle, an attorney for Dr. Gomez, said the defendants responded to the suit with general denials.
Exception to Confidentiality
In the 1987 Texas Legislature, TMA supported House Bill 2560, which provides for the exception to peer review record confidentiality that now exists in the state's occupations code. A relevant peer review record is not confidential, the code states, if a judge makes a preliminary finding that a peer review communication is "relevant to an anticompetitive action."
Memorial Hermann fought against being compelled to produce the documents Dr. Gomez sought. The hospital claimed that in using the anticompetitive exception, Dr. Gomez had to provide evidence of harm not just to himself and his practice, but to "competition as a whole." Its filings said Dr. Gomez's allegations did not indicate he had suffered the sort of injuries that "antitrust" laws were intended to prevent.
"The actions taken against one physician by one health care provider, as a matter of law, cannot rise to the level of an anticompetitive action," Memorial Hermann asserted.
The trial court issued an order compelling the hospital to produce certain documents under the "anticompetitive" exception, while denying the request for the release of other documents.
Memorial Hermann sought review of that decision in the 1st Court of Appeals, but the court turned the hospital down, leading it to ask the Supreme Court for review.
In its petition to the high court, Memorial Hermann claimed the anticompetitive exception didn't apply in Dr. Gomez's case because his allegations failed to assert an antitrust claim.
Dr. Gomez's response to Memorial Hermann's Supreme Court petition drew a distinction between the "antitrust claim" the hospital system said Dr. Gomez needed to make and an "anticompetitive action."
TMA's brief supported Dr. Gomez's belief he should be able to see the records under the "anticompetitive action" exception, saying that legislative history and the public policy behind the exception were on Dr. Gomez's side.
Noting that TMA has a "lengthy and consistent record" of strongly supporting peer review protections, the brief said that although maintaining peer review confidentiality is extremely important, it must not be so important that it "protects hospitals and other organizations from scrutiny when there is evidence of anticompetitive actions before the court."
"Memorial Hermann goes to great lengths … to argue that no antitrust claim 'can be based on injury to a single physician,'" TMA wrote. "Medical peer review focuses on the treatment provided by individual physicians. Accordingly, antitrust cannot be the standard intended by the Legislature for an exception to the application of a statute relating to the peer review of individual physicians. Such an interpretation would render the exception meaningless."
Or, as Dr. Gomez puts it, using the hospital's interpretation would make it "virtually impossible for any individual physician to ever meet that exception to the peer review privilege."
TMA's brief told the high court that even if the peer review committee doesn't take any adverse action as the result of a peer review, "the sharing of data and innuendo can be used to damage a physician's reputation."
Hospitals using peer review, and its accompanying confidentiality protections, to mar a physician's reputation doesn't happen every day in Texas, but it's not a fresh phenomenon.
"I can't tell you it's something we've seen a lot of [in] past instances," Dr. Pike said. "However, there are growing pressures on physicians these days by nonphysician entities. We anticipate we will be seeing more of these problems in the future."
For example, nonphysician evaluation became a problem for Van Mask, MD, in 2010, when Dr. Mask took a hit to his reputation that resulted in a lawsuit and eventually led to a settlement with Coon Memorial Hospital in Dalhart. (See "Peer Review Farce," December 2013 Texas Medicine, pages 51-54.)
Houston emergency physician Arlo Weltge, MD, vice speaker of TMA's House of Delegates, said the house has looked at the issue of "sham" or malicious peer review. Smaller communities in particular, Dr. Weltge says, have produced reports of situations "where hospitals have used this process to … act against physicians who are being perceived as troublesome because they're raising quality issues in the hospital or are not necessarily liked well by the hospital."
"That can be economic credentialing because they may be doing expensive procedures, or it can be personality issues," Dr. Weltge said. "And in some cases [such as the Gomez case], it can be anticompetitive issues."
He says it's important the peer review process "has protections so people can feel comfortable in participating. But it also has to have the reasonable protections so it cannot be used by a hospital administrator who just wants to get rid of a physician on the medical staff because he or she doesn't like the physician, and uses the peer review protections for economic or personality reasons."
TMA advocates a fair, reasonable peer review system that improves standards of patient care, and the association denounces the use of reviews for penalizing physicians for business, financial, or administrative reasons. (See "Fairness in Peer Review.") The decision the Supreme Court issued in May is a crucial step toward avoiding those scenarios.
Dr. Weltge called the decision "incredibly important" because it sent a message to all health care institutions that although medical peer review is confidentiality-protected, institutions must use it in an appropriate way.
"And it cannot be used in a malicious way or be used in a sham way … to meet the needs of an institution or a personal vendetta," he said.
Now practicing at Houston Methodist West, Dr. Gomez says he's "doing well" but is still trying to rebuild lost trust and credibility after Memorial Hermann tarnished his reputation.
"It's very difficult to fight that and to not be harmed by that kind of attack," he said. "Because as a doctor, all you have is your reputation. And once that's been damaged, however unfairly, it's hard to change perceptions."
Dr. Gomez says he's grateful TMA's support helped further his case with the Supreme Court.
"I am so happy that I'm a member of the TMA, and I can honestly say that when I needed TMA at my most difficult period in my medical career, they came in and did the right thing," he said.
Dr. Pike says not all TMA members realize the value of the Patient-Physician Advocacy Committee or what types of issues the committee can address. The committee advocates for patients and physicians on quality and utilization of medical care and recommends regulatory, legal, and legislative approaches to promote high standards of care. (See "Committee Advocates for Patients, Physicians.")
"It is, by some, considered to be one of the more important committees at the TMA," Dr. Pike said. "Because not only do we listen to the physicians and their concerns, but we also truly want to help them if we can. I would hope that physicians approach us any time they need help. We really listen to a broad range of problems and concerns. Equally as important, we have the ability to provide solutions."
At press time, following the court decision, Memorial Hermann had 30 days to produce the peer review documents.
"Not a lot of folks, certainly not a lot of doctors, would have the gumption to be able to fight this fight and keep pushing, as opposed to just kind of keeping their head down," said Mr. Doyle, Dr. Gomez's attorney. "He stood up for a lot of doctors who are now potentially at risk not just from Memorial Hermann but from other hospitals that might want to treat them as competition, in a bad way. And as a result, I think if there's misconduct, now there's a way to get it dealt with."
Joey Berlin can be reached by phone at (800) 880-1300, ext. 1393, or (512) 370-1393; by fax at (512) 370-1629; or by email.
Fairness in Peer Review
TMA policy condemns "sham peer review" and manipulation of medical staff bylaws by hospitals attempting to silence physician concerns about access to quality care at hospitals. TMA opposes such practices and other tactics that chill or inhibit a staff physician's ability to advocate on behalf of patients' best interests.
The policy says TMA will work to:
- Ensure accused physicians receive reasonable rights and due process for peer review and quality assessment efforts;
- Solicit member input and address issues on 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 extended to non-patient care issues, such as economic credentialing or failure to support marketing or business plans of the hospital or health care facility, or used when physicians raise serious quality or patient safety issues about the facility and their practice.
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Committee Advocates for Patients, Physicians
TMA's Patient-Physician Advocacy Committee assesses the quality of medical care in Texas and recommends regulatory, legislative, and legal approaches to assure the highest standard of medical care is available to all Texans.
- Provides advice on topics including medical staff bylaws, peer review, quality assurance, and utilization review;
- Develops and recommends policy;
- Establishes and maintains a liaison with relevant state agencies; and
- Serves in an advocacy role for physicians and patients on important issues in medicine.
To reach staff for the Patient-Physician Advocacy Committee, contact the TMA Knowledge Center at (800) 880-7955.
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