Houston Surgeon Wins Lawsuit Thanks to Release of Peer Review Records
Cover Story — June 2017
Tex Med. 2017;113(6):24-30.
By Joey Berlin
Houston cardiothoracic surgeon Miguel Gomez, MD, was the underdog. He was just one physician taking on Texas' largest not-for-profit hospital system.
"I was fighting the 800-pound gorilla," Dr. Gomez told Texas Medicine. "It was a true David-and-Goliath battle."
At that point, Dr. Gomez's attorney, Mike Doyle, interjected because he thinks that's an understatement.
"If we had about 50 more lawyers," Mr. Doyle said, "it would be David and Goliath."
At any rate, David, the tortoise, and every other mythical underdog winner have company now that a Harris County jury has awarded Dr. Gomez more than $6 million in a years-long case against Memorial Hermann Hospital System over anticompetitive activity and defamation.
Dr. Gomez claimed that Memorial Hermann Memorial City Medical Center started a smear campaign against him after he made plans to take his surgical talents to a competing hospital. He claimed the campaign manifested in whispers about his performance and through distorted patient data and questionable peer review.
The jury's nearly $6.4 million award in late March came after Memorial Hermann's push for key peer review records to remain confidential reached the Texas Supreme Court, which decided in Dr. Gomez's favor in 2015.
"I always knew in my heart that what happened was wrong," Dr. Gomez said, "and you never for sure know if the hospital really turned over all the documents to prove what you know happened to you."
It's impossible to know exactly how often questionable or sham peer review occurs, and recent data indicate physician suits over it are rare. Individual physician victories over large hospital systems in such cases are even rarer, with confidentiality often keeping peer review documents under seal. Dr. Gomez says the jury's decision is more than just his own personal triumph.
"I think this verdict will help because this trial received a lot of publicity," Dr. Gomez said. "And so most doctors in the Houston area have heard of this victory for myself and for all doctors. And I think this is a small step in the right direction for me to help recover my name."
In fact, the first day of the jury trial and the final disposition of the case were both front-page stories in the Houston Chronicle, the second-largest-circulation newspaper in Texas.
When the dispute over the peer review documents went to the Supreme Court, the Texas Medical Association weighed the issues and filed a brief in support of Dr. Gomez's ultimately successful effort to gain prompt release of the records.
"The TMA support throughout this process is one of the pillars I could lean on throughout this long ordeal to know that I was doing the right thing in continuing my battle against Memorial Hermann," Dr. Gomez said.
Even today, Dr. Gomez still hasn't seen everything the hospital recorded in its peer review evaluations of his work. But what he has seen astonished him.
During 14 years at Memorial Hermann Memorial City Medical Center, Dr. Gomez built a strong reputation as a cardiovascular surgeon, according to his court filings, eventually becoming the hospital's director of robotic surgery. According to court filings, he pioneered robotic-assisted heart surgeries in the Houston area, he was the first surgeon in Houston to perform a robotic double bypass, and Memorial Hermann used his specialized abilities as part of its marketing efforts in the West Houston and Katy areas.
But after a change in Memorial Hermann's leadership and operations, he says, patient care suffered. When his concerns about patient safety issues went unaddressed, according to a court filing, he began making plans to transfer his practice to the new Methodist West Hospital, which was set to open in 2010. When that happened, according to Dr. Gomez's court filings, Memorial Hermann embarked on its smear campaign, which included mortality data presented to make it appear patients were more likely to die in his care. Dr. Gomez says the first indication he received of the whisper campaign came at a system-wide November 2011 meeting, where a fellow thoracic surgeon allegedly presented distorted data and made false statements in an effort to discredit him. (See "Fair Evaluations, No Witch Hunts," August 2015 Texas Medicine, pages 63–69.)
The peer review documents pertaining to Dr. Gomez's work soon emerged at the center of the legal battle. Generally, peer review communications are confidential, but an exception in state law allows for their disclosure if the documents are related to an anticompetitive action. Dr. Gomez argued Memorial Hermann's actions were anticompetitive because the hospital's actions were meant to depress his surgical business as he prepared his move to Methodist West. TMA's Committee on Patient-Physician Advocacy heard from both sides before TMA filed a friend-of-the-court brief with the Texas Supreme Court supporting Dr. Gomez's argument to win release of the documents.
In May 2015, the high court essentially sided with Dr. Gomez, compelling release of most of the peer review documents a district court had previously ordered for release.
Although that decision was a victory for Dr. Gomez, not all of the documents became public record. Mr. Doyle says the hospital successfully argued in trial court that there should be separate categories of documents, including an "attorneys' eyes only" category that only attorneys and experts — not Dr. Gomez himself — could view.
The documents Dr. Gomez did get to see were eye-openers for him. He and Mr. Doyle say some of the records represented Memorial Hermann's business interests, rather than patient-care interests.
"It was flabbergasting," Dr. Gomez said. "It was truly revealing to the extent that the hospital looked at me — and any physician — to look at their referrals and to influence their referrals in a negative way if they felt that you were a threat to their business. That was revealed in the documents, and also the way that they manipulated data to negatively impact a physician they felt was a threat to their business."
Mr. Doyle says an email chain from late 2011 — included among the peer review documents — is an example of Memorial Hermann staff attempting to identify physicians referring patients to Dr. Gomez for the hospital's business purposes. In the chain, Byron Auzenne, Memorial Hermann Memorial City's director of interventional cardiology, asks, "Anyway [sic] to find out who is referring these cases to Dr. Gomez?" Apparently reflecting Dr. Gomez's move to Methodist West, Mr. Auzenne later adds in another email, "I want to see what cases he's taking to MW."
Mr. Doyle says Memorial Hermann "and maybe some other hospitals" use their records to drill down intricately into the financial impact and referral patterns of doctors.
"They really look at them as cash cows to a large degree and to the level [where] it's kind of creepy," he said.
Edward R. Rensimer, MD, was a member of TMA's Committee on Patient-Physician Advocacy when it recommended that TMA support Dr. Gomez. He's also a former chief of staff at Memorial Hermann Memorial City. Dr. Rensimer says TMA's brief supporting Dr. Gomez was the "most important thing we did for the profession" during his years on the advocacy committee.
In a statement to Texas Medicine, Dr. Rensimer said when the Committee on Patient-Physician Advocacy discussed whether to support Dr. Gomez's effort to access the peer review documents, committee members were concerned about changing "the status quo for over 50 years." But he says the discussions made it clear "that system of information inaccessibility" was denying physicians due process.
"TMA's advocacy committee lent credibility and force to Dr. Gomez's assertion regarding physician access to peer review documents," Dr. Rensimer said. "In its decision to support Dr. Gomez by filing the amicus brief, our TMA committee did the right thing."
The Jury's Verdict
Dr. Gomez's defamation case against Memorial Hermann went to trial in March. In its decision, the jury answered yes to the question of whether the hospital conspired "with others to restrain trade" by causing referring physicians to stop referring thoracic and cardiovascular surgical patients to Dr. Gomez.
The jury also found Memorial Hermann had published defamatory statements about Dr. Gomez, including one relaying that he was producing "bad quality, high mortality rates, [and] unnecessary surgeries."
The jury awarded Dr. Gomez just under $6.4 million. That total included $761,250 for past injury to his reputation and the same amount for lost profits; $1.75 million for both injury to future reputation and future lost profits; $365,000 for past mental anguish; and $1 million in exemplary damages.
The jury did find, however, that the conspiracy in which Memorial Hermann was involved did not "unreasonably restrain trade" in the West Houston and Katy area.
When reached for comment in April, Memorial Hermann referred to a statement it previously released after the jury's verdict. The hospital system's statement said it had the utmost respect for the judicial process but was "disappointed" with the verdict.
"At trial, Dr. Gomez questioned the [hospital] System's quality review process, expressing concerns that he was unfairly targeted because his mortality data was misleading and made him look bad," Memorial Hermann said. "However, our focus on quality data has never been about singling out one specific physician or physicians; rather we rely on that data to form the basis for our process, the same process widely accepted and utilized nationwide, to evaluate and improve the quality of care provided by our physicians and hospitals. While we had hoped the jury would recognize this important distinction, the process we began in 2009 has helped get the System to where it is today."
Memorial Hermann said its employees had "consistently followed best practices to continuously improve patient safety and quality."
"The purpose of reviewing quality data was not to hurt Dr. Gomez but to improve patient safety, which it did and continues to do today and, going forward, the System will continue to take the steps necessary to ensure our patients are receiving the safest care possible," the statement added. "This verdict will not change that."
The Specter of Retaliation
Not all physicians have the fortitude to speak up when they see a problem with the way a hospital or health organization is handling patient care. The retaliation Dr. Gomez says he faced for conflicting with Memorial Hermann's business interests represents a pervasive worry for numerous physicians. And it can have a chilling effect on the willingness of care-focused doctors to speak their minds.
Beaumont anesthesiologist Ray Callas, MD, chair of TMA's Council on Legislation, touched on that issue in April when he testified on Senate Bill 833 by Sen. Bryan Hughes (R-Mineola). The bill sought to strengthen protections for physicians against nonprofit health organizations that interfere with their professional judgment. TMA was also working with lawmakers on the bill to include protections against retaliation.
Dr. Callas told the Senate Committee on Health and Human Services that when a physician is an employee, the best interest for a patient may not always align with the employer's business interests.
"As a result, the employer may put pressure on the physician in a way that interferes with the physician's best medical judgment," Dr. Callas said.
Although broad protections in the law already generally prohibit nonprofit health organizations from interfering with a physician's professional judgment, Dr. Callas noted that "physicians employed by these organizations may feel very conflicted because reporting a violation may jeopardize their employment, or worst-case, may jeopardize their license."
He told the committee TMA has learned anecdotally about instances where health corporations use policies that "conflict with the law, rules, [and] simply good patient-care practices." But because of the fear of retaliation, physicians may feel unable to report their concerns, and that retaliation may include a report to the Texas Medical Board, he added.
In the wake of the Gomez verdict, TMA heard from a number of physicians who say they've had similar anticompetitive issues with their hospitals when they work at a competing facility, TMA General Counsel Rocky Wilcox says.
The legitimacy of a hospital's peer review practices also can be an open question. In late 2010, Van Mask, MD, a locum tenens physician at Coon Memorial Hospital in Dalhart, began getting word that there were issues with his credentialing and that hospitals were removing him from their schedules. The following summer, Dr. Mask found out he was being blackballed because the ER/Trauma Committee at Coon Memorial had cited "quality and liability issues." He sued Coon Memorial, and TMA filed a friend-of-the-court brief supporting him.
TMA argued in part that the hospital's ER/Trauma Committee was composed primarily of nonphysicians and didn't appear to be an actual medical peer review committee under Texas law. The hospital administration continued to provide other hospitals with negative information about Dr. Mask even after receiving a favorable peer review report from the independent Texas A&M Health Science Center Rural and Community Health Institute. Coon Memorial reached a confidential settlement with Dr. Mask. (See "Peer Review Farce," December 2013 Texas Medicine, pages 51–54.)
"The peer review process can be corrupted by wrong-thinking administrators," Mr. Wilcox said. "Physicians need to be vigilant in ensuring that the peer review process is conducted fairly."
Today, Dr. Mask lives in New Mexico and does locum tenens work in Texas and New England. He says his own case, and that of Dr. Gomez, illustrate that if physicians detect "just the slightest inkling of a problem" with a hospital employer, "you've got to find out what it is."
"Level the Playing Field"
TMA advocates for fair and reasonable peer review that improves standards of patient care, but denounces using peer review to penalize physicians for administrative, business, or financial reasons. Per its peer review policy, TMA pledges to work to end "disruptive physician" policies meant to address issues not related to patient care. (See "Fairness in Peer Review.")
A 2014 article in the World Journal of Gastroenterology examined the history, legal development, and abuse of clinical peer review in the country and found a considerable need to study how often sham peer review occurs. (See "How Prevalent Is Sham Peer Review?")
"The real issue is not the peer review process," said Mr. Doyle, Dr. Gomez's attorney. "When it works … it does exactly what it's supposed to, exactly how it's designed. The problem is, it has become too easy for hospitals to manipulate the process and use it for business purposes. In other words, it's supposed to be a physician-run, peer-run system. And at least in what we have seen in this case, within this system, it has become a business manager-run for business-manager-purpose system, in large degree."
Mr. Wilcox says peer review protections "are important but must be balanced against the need for fairness and due process." He says the Committee on Patient-Physician Advocacy will continue to review allegations of abuse and, working with the TMA general counsel's office, engage in cases meriting approval by TMA's Board of Trustees. Physicians who feel they've experienced peer review abuse and would like to seek TMA's help should contact the TMA Knowledge Center at (800) 880-7955 or by email.
Houston emergency physician Arlo Weltge, MD, vice speaker of TMA's House of Delegates since 2015, says the law allowing the anticompetitive exception to peer review confidentiality "was incredibly important at the time" the Texas Legislature passed it, and still is. The legislature passed that law with TMA's support in 1987. But Dr. Weltge says in "an ideal world," there would be more statutory language further clarifying what's confidential.
"There may be the need for protection. But the nuance of what must happen and to do it well and be protected, I think those are borders that with the evolution of this [peer review] activity will need to be considered at some point," Dr. Weltge said. "Because the ability, for example, for an institution to claim protection for everything they do under the peer review clause, I think, is clearly beyond what the original protections intended."
Though Dr. Rensimer says the Gomez case is just one instance with "very specific features," he hopes the precedent of the Supreme Court's decision will become "a wrecking ball for the status quo … of hospital-medical staff" disputes.
He also says he hopes TMA and other state medical associations can "work with their legislatures to craft a new model of true due process that also shelters legitimately protected information from the public forum, but makes it entirely accessible to a court-appointed third-party adjudicator without conflicts, such as a judge or mediator. Level the playing field."
Memorial Hermann said it was waiting for the final judgment before deciding whether to appeal the verdict. But Dr. Gomez said he expects the hospital system to continue the battle.
"I know this journey has been long for me, and I know Memorial Hermann is going to prolong it," he said. "There's no doubt in my mind that they're going to draw this out as long as they can. They're going to appeal this verdict; they're going to ask for directed verdicts from the judge; they might even ask for a mistrial for whatever reason. So I know I'm going to have to continue this fight. But knowing that the TMA's behind me and other physicians are behind me, I'm confident that I can see this to the end."
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.
How Prevalent Is Sham Peer Review?
The precise prevalence of sham peer review in the United States is a subject that needs study, according to a 2014 article in the World Journal of Gastroenterology. The report, "Clinical Peer Review in the United States: History, Legal Development and Subsequent Abuse," says the "extraordinary levels of immunity" that hospitals and peer reviewers have under the Health Care Quality Improvement Act (HCQIA) have inhibited litigation of bad-faith peer review cases.
"In the hypercompetitive and highly political United States medical system, this immunity has been abused and has led to the devastating destruction of many [physicians'] careers," the report said. "Considering Congressional and Judicial forbearance on this crisis, significant leadership by physicians, professional societies, and hospital administrators is needed in order to remedy the faults of peer review."
It cited a previous study estimating 33 sham peer review lawsuits in U.S. courts between 2003 and 2007. "Further estimates put the number of sham peer reviews occurring at upwards of 10 percent of cases reviewed," the report said, citing another previous study.
"While legal reform of HCQIA is necessary to reduce sham peer reviews, further measures including the need for standardization of the peer review process alongside external organizational monitoring are critical to improving peer review and reducing the prevalence of sham peer reviews," the report said.
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