Update: Lawrence Poliner v. Texas Health Systems appeal

by Ted Frank on August 2, 2008

We hear frequently that the medical profession doesn’t do enough to police its own. Cases like that of Lawrence Poliner might explain why. In 1997, in response to complaints by nurses at Presbyterian Hospital of Dallas, and the allegation by a doctor that Poliner had performed an angioplasty on the wrong artery, the hospital asked Poliner to stop work while they investigated. These limited privileges lasted 29 days, followed by a unanimous decision to suspend, a five-month suspension from echocardiography privileges, and then reinstated Poliner five months later subject to conditions that he consult with other cardiologists.

For this, Poliner sued for defamation and under federal antitrust law, alleging that other cardiologists were trying to dominate the market and prevent his competition. The five-month suspension had federal immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. (just one of many federal tort reforms that promote safety), but the trial court held that the 29-day limited-privileges created a cause of action that should go to a jury. Poliner lost $10,000 in income over that time “but was awarded more than $90 million in defamation damages, nearly all for mental anguish and injury to career. The jury also awarded $110 million in punitive damages”–despite the fact that Poliner would have to prove damages were caused by the allegedly unprivileged temporary limitation rather than by the five-month suspension. We covered the initial $366 million verdict in 2004, the outraged medical blogosphere reaction, and the remittitur to a still ludicrous $22.5 million in 2006.

The hospital appealed to the Fifth Circuit, which reversed in a 3-0 decision, holding that the protections of the HCQIA applied to the entire peer review process engaged in by the hospital and its doctors, and noting that the damages claim was fairly weak, too, without reaching that question. That’s some, if not complete, consolation to the doctors and hospital who were put through eight years of litigation hell for daring to do something about a doctor’s errors. The blogosphere comments: Healthcare Law Blog; MedLawBlog; HealthCare Neutral ADR; MSSPNexus. The law firm of Foley & Lardner has a good summary of the case and makes CYA recommendations for how to avoid lawsuits–recommendations that will make peer review substantially more expensive.

{ 5 comments }

1 Dr. Mary Johnson 08.02.08 at 11:11 pm

A couple of things. First, HCQIA is an imperfect law which could use some serious fine-tuning.

There are plenty of cases on the books that provide ample evidence that “bad faith peer review” (i.e. for economic or retaliatory reasons) exists . . . and nothing has been done to tweek/improve the federal law to stop it.

The “disruptive doctor” theory, so often used by hospitals to impeach physicians who are not clinically impaired, is particularly malodorous.

So are anonymous informants. If you cannot sign your name to a complaint – and stand behind it for it to be properly vetted, you have no business filing it. That will lead me to my second point in a moment.

Adherence to medical staff by-laws, prompt due process and outside outside review are imperative to improving the process. Yeah, it will cost more. But it might keep hospitals more honest. Over the last few years (since the original Poliner verdict) peer review has become a cottage consultant industry. But in this case, that’s probably a good thing. Revoking hospital privileges can be a career-ending event for a doctor. It needs to be done for the right reasons.

Unfortunately, the few doctors advocacy groups that were trying to fix the problems with medical peer review hopped on the original Poliner decision as the door to a legal gravy train. It was pretty ugly to watch. I acutally cut my ties with the Semmelweis Society because I felt its original mission had been hi-jacked by greed.

I blogged about it here: http://drjshousecalls.blogspot.com/2006/10/poliner-verdict.html

Second point. There’s a flip side to the story of medicine’s failure to police it’s own.

Medical whistle-blowers remain unprotected (and in some cases the peer review process is turned upon them as a weapon).

That, and hospitals/medical boards continue to cover doctors’ tails.

http://drjshousecalls.blogspot.com/2008/08/well-now-i-guess-i-dont-have-to-sue.html

2 William Nuesslein 08.04.08 at 8:27 am

Dr. Johnson,

Your comment has an implicit premise that doctor quality has a variance that includes incompetency. The AMA has found that there are no known measures to predict outcomes of medical procedures among board certified doctors. Most of us believe we have above average doctors, but on average, doctors are average. How then would doctors be judged?

There will always be an actuarial chance of error; a chance that is predictable for large numbers, but unpredictable for individuals. So one cannot rely on a particular adverse outcome to judge a doctor. My understanding is that Insurance companies disregard one or two malpractice claims in setting rates, as nobody would be competent by the malpractice claim standard.

Sure, there are incompetent doctors. Dr. Christiaan Barnard comes to mind. He had terrible arthritis in his hands and stopped doing operations. What you are driving at is the doctor who has lost his way but stubbornly carries on. I believe that a bureaucratic response to that problem is likely to do more harm than good.

3 Dr. Mary Johnson 08.04.08 at 10:07 am

Actually, not that’s NOT just what I’m driving at.

In the real world, we’re not just talking about Board certified doctors (and one could argue all day about the myth of board certification as a measure of clinical competance). There are plenty of doctors out there practicing who are not board certified – including the one I reference in the second link in my first comment.

I would also argue that some clinical incidents warrant more attention/special consideration than others by virtue of their severity – and surrounding circumstances. There’s also the little matter of medical ethics – some behavior just stinks and should be treated as if it stinks.

For instance, in the “whistle-blower” case that got me fired ten years ago, the physician I “rescued” (in the process saving a newborn’s life) had advertised to the public (with the hospital’s blessing) neonatal expertise that he simply did not have. He was a Family Practitioner who was “certified” as an NRP instructor. But that’s just about basic resuscitation. After the incident, with the child’s life hanging in the balance, he attempted to deflect blame back on the doctor who rescued him (that would be me), trashing my (considerably more experienced/substantial) Pediatrics credentials to the parents of the baby – telling them that he was “head of Neonatology at the small town hospital that had no Neonatologists. It was despicable.

If the child had died, there’s no doubt in my mind I would have been named in his malpractice action.

That kind of behavior merits more than the slap on the hand he got – and I certainly deserved to be protected from retaliation of hospital executives who wanted me to just shut up and go away. He went on to be named Chief of Staff at the hospital. My life and career in my own hometown were trashed.

There are also patterns of clinical behavior that often identify problems long before a “sentinel event” occurs. Most of the time bad things do not just happen out of the blue. Again, in the case cited in my second link, the incidents cited were hardly “isolated” (an assertion made by the NC Medical Board that it KNOWS to be false). It should not be so hard to STOP someone who is clinically impaired.

Malpractice claims are not malpractice judgements and insurance companies know that. Also, depending on medical acuity and/or the specialty of the doctor involved, malpractice claims in and of themselves are not a measure of clinical competence.

It is a fact that the behavior and actions of doctors are often governed/influenced by people/forces/institutions/considerations outside the sphere of medicine . . . but they suffer NO scrutiny or real accountability for their actions. It’s always the doctor that goes down.

It’s far past the time that Medical Practice Acts everywhere were tweaked to acknowledge this. A federal law would be even better.

In Poliner’s case, he asserted that he had been ganged up on for economic reasons – apparently a jury that heard the evidence believed him.

So in terms of “bureaucratic response”, YES I do believe there is good to be done. For instance, with regards to HCQIA, “good faith” action on the part of hospitals is assumed – and (very importantly) “bad faith” is not defined. Many good doctors have fallen through those cracks (for less than the noble reasons HCQIA protects) and no one cares.

Medicine, being slow to change, has done nothing to fix the problem. Indeed, our so-called advocacy organizations (so consumed with fear of malpractice litigation) have ignored it. JCAHO (supposedly all about patient protection) has proven itself worthlesss, and the AMA is a joke.

As for Poliner, I think the verdict might have stood had the financial award not been so fundamentally ridiculous. As it stands, I don’t think the case is over – as I can not imagine Dr. Poliner’s lawyers are going to let that pot-of-gold go without an appeal to the US Supremes.

4 William Nuesslein 08.05.08 at 7:56 am

To get back to the Poliner case, what exactly did he do that was wrong? Maybe he did an angioplasty on a wrong artery. Couldn’t that kind of error, if it was an error, be just an out of the blue error? There is no obvious motive for Dr. Poliner to deliberately harm a patient.

We should not be too harsh on the hospital, and $110 million is harsh indeed, as the complaints by nurses and the accusation of error would be dynamite for a plaintiff lawyer in case of an adverse outcome involving Dr. Poliner. The CYA in this case is a problem with a bureaucratic approach.

I think that you misunderstand certification. Board Certification is a filter, and as such, it has Type I and Type II errors. Perfection is a pipe dream. It is my understanding that there are no other measures that would improve on the predictability of Board Certification.

5 Dr. Mary Johnson 08.05.08 at 11:07 am

William, you seem to be trying to divert attention away from my point that there are serious problems with HCQIA (a law drafted in the 1980’s that twenty-some years later – given the changes in medicine – might need some serious tweaking).

To answer your question, any medical errors Dr. Poliner may have made probably should be judged (at least in part) in view of/comparrison the errors his collegaues judging him might have made (number/severity/etc). Did they cause harm – or were they something the patient could quickly recover from? Did the on-staff doctors doing the judging suffer similar scrutiny/consequences?

I doubt it.

I also think you need to look at more than one case to see the issues at stake with Poliner & HCQIA/peer review. There are many “bad-faith” cases out there. Doctors in control at a hospital ganging up on other doctors – economics and butt-covering as factors that play to bad faith rather than good.

It’s the reason out-side review is so important.

On the other hand, sometimes you’ve just got a bad doctor and you need to do something to stop badness and save some lives – what peer reveiw is really supposed to be about. All of the legal wrangling & posturing these days seems to have forgotten that.

A multi-million dollar judgement against a hospital for bad faith was the time to start looking at these cases in something besides a “CYA” (i.e. we must protect the poor hospital from litigaion) kind of way.

Immunity is afforded to all who participate in peer review committees – but NOT to those who report (i.e. medical whistle-blowers).

I was fired (By over-zealous administrators) for reporting badness to peer review. My actions in the case were peer-reviewed – ironically after I was fired – and found to be in keeping with good practice/my duty.

But I’m the one who found herself out of a job.

I think some hospitals have been very harsh to doctors – and a harsh judgment is in order.

Since I am Board-certified, I think I understand Board Certification very well. And, again, there are many, many doctors out there practicing who are not Board-certified.

Comments on this entry are closed.