Punching Back: Hospital System Sued Again Over Alleged Peer Review Misconduct
By Joey Berlin Texas Medicine November 2018

Nov_18_TM_Law

Texas’ largest not-for-profit hospital system once again faces allegations of mishandling the peer review process. This time, it’s accused of trying to funnel peer review information to people who shouldn’t see it.

A former physician peer review coordinator for Memorial Hermann Health System in Houston says she was fired in May 2018 after refusing to export confidential, protected information to a non-peer review committee. Gertrude Johnson, a registered nurse, claims in a lawsuit against Memorial Hermann that she believed doing so would be illegal, and her refusal led to her firing.

 The case is the latest in a long line of peer review-related battles to end up in Texas courts. (See “Fair Evaluations, No Witch Hunts,” August 2015 Texas Medicine, pages 63-69, www.texmed.org/NoWitchHunts.) It’s also not the first case questioning Memorial Hermann’s peer review actions. Last year, a cardiothoracic surgeon won a multimillion-dollar judgment against Memorial Hermann over allegedly questionable peer review during his time at Memorial Hermann Memorial City Medical Center. (See “A Victory for the Underdog,” June 2017 Texas Medicine, pages 24-30, www.texmed.org/VictoryUnderdog.)

Houston family physician Robert Vanzant, MD, a former chief of staff at Memorial City, says that for now, the courts seem to be the only way for physicians to fight back against hospitals that misuse the peer review process. 

“They certainly don’t respond to logic and polite discourse,” Dr. Vanzant said. “At this point, we’re forced to punch them in the nose economically — make it too painful for them to misbehave.” 

“I don’t know what they’re doing”

Ms. Johnson told Texas Medicine she worked at Memorial Hermann off and on for 37 years, including 11 as the system’s peer review coordinator.

Her suit claims Memorial Hermann asked her to “reveal confidential, privileged, and protected information related to Memorial Hermann’s surgeons’ peer review grades during the ‘filter committee’ meetings at Memorial Hermann.” The hospital’s filter committee doesn’t qualify as a medical peer review committee under Texas law, according to the suit, and is an open-meeting, nonconfidential body.

Ms. Johnson responded by saying she believed the information was confidential and privileged, and disclosing it to the filter committee would be illegal, according to the suit. She reported that belief to Memorial Hermann’s legal department, physician employees, executives, and her supervisor, but the system told her she was required to disclose the information, the suit claims.

Although she sat in on a few of the filter committee’s meetings, Ms. Johnson told Texas Medicine, “I don’t know what their purpose is. It seems to be to rate patient harm. They don’t have an action plan or any follow-through in that committee, either.” She says the committee has a basic core group, usually department heads, and reviews cases on a monthly basis, pulling in staff who were involved in whatever the committee is discussing.

 “There are people [in the room] I do know, but for the majority, I don’t know who they are. They don’t function under peer review. They are a quality committee of some sort. I don’t know what they’re doing. I don’t know what their ultimate goal is.”

After her refusal to turn over the grades to the filter committee, the hospital system terminated her on May 26, according to the suit. It claims Memorial Hermann created a pretext for her firing, claiming her position had been eliminated when Memorial actually made plans to fill the position later. Mike Doyle, Ms. Johnson’s attorney, says once he filed the lawsuit, Memorial Hermann suddenly indicated they weren’t filling the position after all.

“If she’s doing what she’s supposed to do — which is make sure that the state and federal protections of peer review [are in place] — then the last thing they should do is retaliate against her,” Mr. Doyle said. “And she looked for guidance under the appropriate standards; in other words, if you have an ethical or legal concern, this is what you do.”

He added Ms. Johnson “did the right thing when presented with what pretty clearly appeared to be contrary to the whole spirit of peer review confidentiality and tried to protect it, which is critical to the proper functioning of peer review.”

The suit claims unlawful retaliation and seeks more than $1 million in damages.

Memorial Hermann declined to comment for this story. 

In an August court filing, Memorial Hermann generally denies “each and every allegation” Ms. Johnson made, and also claims immunity from suit for several reasons. Ms. Johnson’s case involves “information furnished by medical peer review committees … for legitimate internal business and professional purposes;” and Memorial Hermann’s actions “involved attempts to maintain or improve the quality of professional services to benefit the public interest” and involved the exercise of free-speech rights, the filing says.

For peers only 

Ms. Johnson’s lawsuit comes on the heels of a separate case against the hospital system for allegedly using questionable peer review against a physician who sought to work at a competing hospital. 

Houston cardiothoracic surgeon Miguel Gomez, MD — also represented by Mr. Doyle — won more than $6 million last year in a defamation suit against Memorial Hermann. The hospital system denied that it intended to hurt Dr. Gomez and is appealing the verdict. At press time, oral arguments for the appeal were scheduled for Oct. 30.

Dr. Vanzant worked at Memorial Hermann Memorial City at the same time as Dr. Gomez and helped write the hospital’s medical staff bylaws. Like Dr. Gomez, he now works at Methodist West hospital. Dr. Vanzant says several other physicians from Memorial City made that jump as well, with the hospital’s peer review system playing a role. He says peer review is supposed to involve only peers: Surgeons review surgeons, urologists review urologists, and so on.

When hospitals get involved in peer review, Dr. Vanzant says, it’s almost never based on quality issues. Instead, he says, it’s based on issues like economics, politics, or physicians mischaracterized as “disruptive.”

“Anytime that someone that’s not a peer is looking over problems, there’s trouble, because that’s open to abuse, open to sham peer review, and especially if they hide it behind the peer review curtain so that the doc doesn’t necessarily have access to what’s being reviewed, and in many cases, nor does his lawyer,” Dr. Vanzant said.

Aside from payback for her own firing, Ms. Johnson says Memorial Hermann should be held accountable for its mistreatment of the actual peer review process and committee, which she says does its job well.ell.

“These people have educated for eight to 16 years, and these people have invested hundreds of thousands of dollars in their education, and [the hospital is] so flippant about giving this information out. That’s so unfair,” she said. “I’m feeling like a mother hen; this shouldn’t happen.” 

 

Tex Med. 2018;114(11):23-24
November 2018 Texas Medicine Contents
Texas Medicine Main Page



Last Updated On

November 02, 2018

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Joey Berlin

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Joey Berlin is associate editor of Texas Medicine. His previous work includes stints as a reporter and editor for various newspapers and publishing companies, and he’s covered everything from hard news to sports to workers’ compensation. Joey grew up in the Kansas City area and attended the University of Kansas. He lives in Austin.

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