In Poliner v. Texas Health Systems, a Texas cardiologist received a $22.5 million judgment after a Texas hospital convinced the cardiologist to stop performing catheterizations. This multi-million dollar verdict clearly identifies the risk that hospitals, and the physicians involved in peer review at those hospitals, face when making peer review decisions. Moreover, the decision underscores the premise that hospitals need to follow their own procedures if they want to qualify for applicable statutory immunities.
A. The Facts
Dr. Poliner had practiced medicine in the Midwest for approximately thirty years before obtaining full staff privileges at Presbyterian Hospital Dallas (the Hospital) in 1997. In his first year with full staff privileges at the Hospital, three of his cases came under peer review by the Hospital's Department of Internal Medicine.
When a fourth incident arose, the Department Chair immediately sent a letter to Dr. Poliner demanding that Dr. Poliner "voluntarily" cease performing cardiac catheterization procedures, or face a summary suspension of all of his privileges later that same day. Dr. Poliner, who alleged that he was directed not to contact a lawyer, and was not given any details regarding the fourth incident, agreed to the voluntary cessation.
The "voluntary cessation" by Dr. Poliner under the threat of a summary suspension was the cornerstone of Dr. Poliner's lawsuit. The Hospital's by-laws provided a certain process for peer review, and suspension of a physician's staff privileges. In fact, the Hospital's own rules stated that the Hospital can only summarily suspend a doctor if the Hospital establishes that the doctor poses a present danger to the health of patients.
The evidence convinced a jury that the Hospital had acted before determining whether or not Dr. Poliner was a present danger. The letter seeking the cessation was evidence in of itself that Dr. Poliner's suspension occurred before an investigation was completed. Moreover, comments from the Chair of the Department of Internal Medicine were also particularly damaging.
The Department Chair stated that the cessation was sought to investigate whether Dr. Poliner posed a risk to patients. The Department Chair also said that the Hospital would have summarily suspended Dr. Poliner from all of his privileges that day had Dr. Poliner not signed the letter. Since the incidents under investigation did not involve a present danger to patients, and since the investigations into the four incidents were incomplete, the jury decided that Hospital could not conclude that Dr. Poliner was a danger to the health of any patient, let alone a present danger to the health of any patient.
During the trial, among other defenses, the Hospital argued that the Health Care Quality Improvement Act (HCQIA), and certain Texas peer review immunity statutes, immunized the Hospital's decision to "cease" Dr. Poliner's privileges.
More specifically, the HCQIA grants immunity to participants in a peer review process if the members make a reasonable effort to investigate, to form a reasonable belief that the decision was made in the furtherance of health care improvement, to provide the affected physician with a fair and reasonable process, and to act in a reasonable belief of those facts. However, in this situation, the Hospital had not concluded its investigation before acting. As a result, the Hospital could not have conducted a reasonable investigation nor acted on the reasonable belief that it was improving health care.
The result was the same under the Texas peer review statutes. The judge concluded that the Hospital had acted with actual malice, or with a reckless disregard for the truth, by proceeding before completing its investigation.
While successful suits such as Poliner are rare, their lessons are simple-hospitals should read and follow their own rules when disciplining members of their medial staffs. If the Hospital had, in fact, followed its internal procedures in its by-laws, the Hospital probably would have been immunized by the HCQIA and by the applicable Texas peer review statutes.