Fed Court Confirms It: Peer-Review Participants Are Immune

Peer review systems serve an important purpose in ensuring quality health care is provided to patients. However, one problem with peer review systems is that it they may be used for improper purposes, such as to punish a whistle-blower or a person whom those high up in a medical institution simply dislike. Many are the health care providers who have felt singled out for discipline for unjust reasons. Often, their only recourse has been to sue the members of a peer review team, their bosses and their hospital for torts such as defamation or interference with professional relationships, but because of peer review immunity rules and statutes, such tactics often prove futile. In particular, the U.S. Congress' passage of the Health Care Quality Improvement Act (HCQIA), U.S.C. 42 ” 11101 ' 11152, squelched many hopes for financial compensation for peer-review excesses.

It looked like one doctor had successfully bucked that system in 2003 when he won a huge judgment against a hospital and a superior that had suspended his privileges for 29 days while they investigated allegations of substandard performance against him. After that award was overturned by an appellate court, the doctor took an appeal to the U.S. Court of appeals for the Fifth Circuit. The Fifth Circuit decision in Poliner v. Texas Health Systems, — F.3d —-, 2008 WL 2815533 (C.A.5 (Tex.)), concurring with the lower appellate court, has put another damper on the hopes of unhappy peer-reviewed medical professionals who want to seek monetary damages for their real or perceived injuries. On the other hand, the decision has eased the minds of those who must step up to ensure the quality of medical care, even when it means taking away some or all of a colleague's privileges.

Hospital Conducts Inquiry

The plaintiff in Poliner, interventional cardiologist Dr. Lawrence Poliner, came under increased scrutiny after he failed to recognize that a patient (referred to in court papers as Patient 36), admitted through the emergency room at Presbyterian Hospital of Dallas, had not just one at least partially blocked artery, but a fully blocked one as well. Although Dr. Poliner operated to clear the partially blocked artery, the fully blocked artery went untreated.

Another physician, Dr. Tony Das, saw the missed clogged artery on a monitor in the control room. Dr. Das spoke with Dr. Poliner about it, as did Dr. Charles Levin, the director of the catheterization lab. In an addendum to Patient 36's chart, Dr. Poliner admitted that he missed the totally blocked artery and that, had he known about the more fully blocked artery, he might have treated it first.

The patient later suffered life-threatening complications, and there were questions about whether Dr. Poliner's follow-up care contributed to the patient's deteriorated condition. A critical care specialist, Dr. Kenney Winmeister, had to be brought in to stabilize the patient. Dr. Weinmeister later testified that, had he not intervened, the patient might have died within an hour.

Drs. Das and Weinmeister informed Dr. James Knochel, the chairman of the Internal Medicine Department (IMD), about the Patient 36 incident the following day, May 13, 1998. This, was not the first of Dr. Poliner's patients to come to Dr. Knochel's attention; four other patients' care had recently come under scrutiny, and these cases had been referred by the hospital's Clinical Risk Review Committee (CRRC) to Dr. Knochel and the Internal Medicine Advisory Committee (IMAC), which Dr. Knochel chaired, for review. These cases did not involve similar factual circumstances, but all brought Dr. Poliner's professional judgment into question. Review of some of these cases was still pending when Dr. Knochel learned of the mishap with Patient 36.

Dr. Knochel consulted with some doctors, various hospital administrators and the members of the IMAC on May 13, and decided that he would seek temporary restriction on Dr. Poliner's catheterization lab privileges to allow for an investigation, as provided for in the Medical Staff bylaws.

Abeyance of Privileges

Late on May 13, Dr. Knochel met with Drs. Poliner, Harper, and Levin, and asked Poliner to agree to an abeyance of his catheterization lab privileges, which he did, reluctantly. A letter sent to Dr. Poliner the following day advised him that the abeyance was prompted by Patient 36, and that Patients 3, 9, and 18 had also been referred by the CRRC to the IMD. Dr. Poliner, who was asked to sign the letter and return it that day, requested more time so he could consult with a lawyer, but that request was denied. He therefore signed the letter, and later engaged legal counsel.

Dr. Knochel immediately appointed an ad hoc committee of six cardiologists to review a sample of Dr. Poliner's cases. After reviewing 44 cases, the committee concluded that Dr. Poliner gave substandard care in more than half. The IMAC met on May 27, the thirteenth day of the abeyance, to consider the ad hoc committee report, and recommended conducting additional reviews of echocardiograms and obtaining an outside review. The IMAC also recommended extending the abeyance of Dr. Poliner's cath lab privileges. Dr. Knochel had a letter hand-delivered to Dr. Poliner requesting his consent to the extension. The letter advised Dr. Poliner that the extension was investigational in nature and that the ad hoc committee had reviewed 44 of his cases. The letter also stated that Dr. Poliner could meet with the IMAC to respond to the ad hoc committee review. When Dr. Poliner learned that failure to sign this letter would mean that his abeyance would be converted to a suspension, he signed the abeyance extension request on May 29.

Suspension of Privileges

On June 12, the IMAC unanimously agreed that Dr. Poliner's cath lab and echocardiography privileges should be suspended due to the doctor's: 1) poor clinical judgment; 2) inadequate skills, including angiocardiography and echocardiography; 3) unsatisfactory documentation of medical records; and 4) substandard patient care. Dr. Knochel accepted the recommendation of the IMAC and suspended Dr. Poliner's catheterization lab and echocardiography privileges on June 12.

On Nov. 9, the Hearing Committee issued its recommendations, which concluded that the June 12 suspension should be upheld based on the evidence that was available at the time of the suspension, but that Dr. Poliner's privileges should be reinstated with a condition. Presbyterian's Medical Board accepted the Committee's recommendations. Dr. Poliner appealed the Medical Board's decision to uphold the June 12 suspension to Presbyterian's Committee on Professional Affairs (CPA). The appeal was limited to determining whether Dr. Poliner had substantially received the procedural due process provided for in the bylaws. The CPA determined that he had, and Presbyterian's Board of Trustees upheld that decision.

The Doctor Files Suit

In May 2000, Dr. Poliner and his professional association sued Drs. Knochel, Harper and Levin, as well as Presbyterian, and other doctors who had been involved in the peer review process. The claim was based on federal and state antitrust claims, the Deceptive Trade Practices Act, and on several other tort bases. Defendants moved for summary judgment on the grounds, inter alia, that they were immune under the Health Care Quality Improvement Act (HCQIA). On Sept. 30, 2003, the district court issued its decision.

In analyzing HCQIA immunity, the district court concluded that there were two peer review actions ' the May 14 abeyance and June 12 suspension. The court held, as to the May 14 abeyance, that fact questions remained concerning whether Dr. Knochel's threat to summarily suspend Poliner if he did not agree to the abeyance negated Dr. Poliner's consent. If Dr. Poliner had not freely agreed, the court reasoned that the abeyance was then in fact a summary suspension and, if so, fact issues remained concerning whether the defendants satisfied the HCQIA's standards. Thus, the court denied HCQIA immunity, as well as state law immunity, to Drs. Knochel, Harper and Levin, and Presbyterian.

The court ruled that the remaining defendants, who had served on the ad hoc committee and on the IMAC, were entitled to HCQIA and state-law immunity. After dismissing some other claims, the trial court ruled that fact issues remained as to the remaining tort claims, including defamation, against Drs. Knochel, Harper and Levin, and Presbyterian.

The district court's summary judgment decision reshaped the plaintiff's case theory, which now became as follows: that Dr. Poliner was forced to agree to the abeyances, rendering them summary suspensions; that summary suspensions were permitted under the Medical Staff bylaws only if the medical care provider posed a “present danger to the health of his patients”; that Dr. Poliner posed no such immediate threat; and that the suspension was thus unjustified. Dr. Poliner suggested that he was actually suspended because his solo practice was a competitive threat to the dominant cardiology groups at Presbyterian, and that Dr. Knochel “had it in for” him.

The trial evidence focused on Dr. Poliner's treatment of six patients ' including Patient 36, whose blocked artery he overlooked ' and on whether Dr. Poliner's mistakes with these patients had rendered him a “present danger.” Consistent with a court order, the jury was not told about the ad hoc committee's conclusions and the IMAC's responses, although the jury was told that there was an investigation, that Dr. Poliner was summarily suspended on July 12, and that after the November hearing his privileges were reinstated.

The jury found for Dr. Poliner on all of his remaining claims and awarded him the phenomenal sum of $360 million in damages, $90 million of which were for the defamation claims. Almost all of the damages awarded were for mental anguish, injury to career, and punitive damages. Drs. Harper and Levin settled after trial, but Dr. Poliner elected to recover under his defamation theory against Dr. Knochel and Presbyterian. The district court remitted the defamation damages to $10.5 million for injury to career, $10.5 million for mental anguish, and $1.5 million in punitive damages, and further ordered prejudgment interest, totaling more than $11 million. The two remaining defendants appealed.

The Appeal

The Fifth Circuit began its analysis of the case by looking at the impetus behind Congress' enactment of the Health Care Quality Improvement Act. The Act's stated primary reason for being was to combat an increase in the incidence of medical malpractice and to put in place a system to deter “bad doctors” from simply moving to new states and setting up new practices, unperturbed by their bad safety records in their previous locations. To advance these goals, Congress, through HCQIA, granted limited immunity from suits for money damages to participants in professional peer review actions.

A “professional review action,” as defined by the HCQIA, must
meet certain standards if immunity from suit is to apply to participants in the peer review group. The statute, which establishes four requirements for such immunity, states as follows:

For purposes of the protection set forth in section 11111(a) of this title, a professional review action must be taken '

(1) in the reasonable belief that the action was in the furtherance of quality health care,

(2) after a reasonable effort to obtain the facts of the matter,

(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and

(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).

42 U.S.C. ' 11112(a).

The Act further includes a rebuttable presumption that any professional review action meets the standards for immunity. In order to show otherwise, the aggrieved medical professional must meet a “preponderance of the evidence” standard.

The Fifth Circuit determined that because the May 14 abeyance and the extension of it were separate actions that were imposed for different reasons, they must be evaluated as separate incidents to see if they both complied with ' 11112(a).

A Reasonable Belief

Starting with the question posed by ' 11112(a)(1) ' whether the actions were taken in the “reasonable belief” that they were necessary to protect patient health ' the court found that both actions were. In order to come to this conclusion, the court asked only whether the reviewers could reasonably have believed, with the information they had at the time their decisions were made, that their actions would restrict incompetent behavior or protect patients. There was no requirement that those actions actually produce the result of increased patient safety, nor that, in hindsight, they prove to be the correct moves. The only real caveat here was that the good- or bad-faith intent of the reviewers must not be considered; rather, the test is an objective one for reasonableness under the totality of the circumstances as they existed at the time of the decision.

Clearly, here, with several major mistakes having been recently made by Dr. Poliner, including the precipitating “last straw” of his care of Patient 36, a reasonable decision maker could conclude that suspending privileges for a short time while allowing further review of the situation was an objectively reasonable move. Noted the court, “It was in relatively quick succession that Knochel was presented with separate cases that called into question Poliner's medical judgment. That Poliner had over 20 years of experience and an apparently clean record before these cases only serves to heighten the concern: Why was this experienced physician now having these problems? On May 14, there was ample basis for concern.”

Additionally, the court found that the ad hoc committee's review, upon which the extension of the abeyance rested, was reasonable. That group of six cardiologists reviewed 44 of Dr. Poliner's cases and concluded that he gave substandard care in more than half of the cases. On that basis, their decision to recommend further restriction of privileges while the investigation continued was objectively reasonable, and Dr. Knochel's reliance on their recommendation was also reasonable.

Dr. Poliner attempted to defend the jury's verdict on this issue by arguing that his treatment decision was indeed better and that, had he done as the reviewers originally thought he should, his patients might have fared worse. The court brushed this argument aside, however, noting that the question here was not one of who was right and who was wrong in the end. Instead, the question was whether a reasonable reviewer could have thought restrictions on Dr. Poliner were required at the time of the decision. Stated the court, “If a doctor unhappy with peer review could defeat HCQIA immunity simply by later presenting the testimony of other doctors of a different view from the peer reviewers, or that his treatment decisions proved to be 'right' in their view, HCQIA immunity would be a hollow shield.”

Obtaining the Facts

The court next found that no reasonable jury could conclude that defendants failed to make a “reasonable effort to obtain the facts.” Prior to the incident involving Patient 36, investigations were being conducted of the other suspected occasions on which Dr. Poliner administered substandard care. Dr. Knochel discussed the situation concerning Patient 36 with several doctors, including those who caught Dr. Poliner's mistake on the monitor and the doctor who treated Patient 36 when his condition deteriorated post-operation.

As to the abeyance extension, Dr. Knochel relied on the review of the 44 cases conducted by the ad hoc committee. In fact, the district court had, through summary judgment, established the propriety of the ad hoc committee's review, and that decision went unchallenged. Therefore, Dr. Knochel was entitled to rely on the information provided to him by the ad hoc committee, and that reliance was reasonable.

Dr. Poliner argued that the fact that investigation of his actions had not advanced far enough, under the hospital's own bylaws, to permit for his suspension at the time of the two abeyances indicated that Dr. Knochel could not have made the requisite “reasonable effort to obtain the facts” under the Act. The Fifth Circuit turned this argument aside by saying that HCQIA immunity is based on compliance with a uniform set of national standards, not with a single institution's own bylaws.

Notice and Hearing Opportunity

The third question was whether the defendants had complied with Section 11112(a)(3), which says HCQIA immunity is available only if the peer review action is taken “after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances.” The court found the peer review actions satisfied HCQIA's procedural requirements, as there was an emergency situation (due to the string of errors on Dr. Poliner's part, capped by the error with Patient 36) that justified quick action, in the form of the first abeyance, and he was given adequate notice and an opportunity to be heard soon thereafter.

The ad hoc committee's conclusions also justified defendants' decision to impose another period of abeyance with the same restrictions without immediately giving a hearing. The court noted it would be “difficult to conceive of a meaningfully different response from Defendants. Upon receipt of the ad hoc committee's review, it would have been untenable to restore full privileges while a hearing was scheduled and Poliner was given time to prepare. Had Defendants immediately held a hearing, there would have been no opportunity for Poliner to review the cases at issue, and we have no doubt that we would be considering whether such a hearing was 'fair.'” So, a rushed full hearing would have prejudiced Dr. Poliner's ability to adequately defend himself, and a return to full privileges until such time as he could prepare a full defense might have placed patients in danger. The court noted that balancing the physician's and the patients' interests like this could work a hardship on the physician, but this reflected Congress' intent. Therefore, the court concluded defendants satisfied the notice and hearing requirements, and no reasonable jury could conclude otherwise.

Was the Action Warranted?

The final question that needed an answer before HCQIA immunity could apply in this case was whether each peer review action was taken “in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts.” ' 11112(a)(4). The court concluded that, in both abeyance situations, the temporary restrictions were properly tailored to address the health care concerns that had been raised because they limited Dr. Poliner's cath lab privileges only, leaving untouched his other privileges. In addition, the information on which Dr. Knochel based his decision to limit Dr. Poliner's privileges was not so obviously mistaken or inadequate as to make reliance on it unreasonable. Concluded the court, “There was an objectively reasonable basis for concluding that temporarily restricting Poliner's privileges during the course of the investigation was warranted by the facts then known, and for essentially the reasons given above, we hold that Defendants satisfy this prong.”

Because the requirements of the statute were met, the court, finding the hospital's and Dr. Knockel's actions were immune from money damages, rendered judgment for the defendants.

The court declined to address several other questions ' including the exorbitant damages award to compensate a doctor for less than a month of merely limited privileges ' because these issues were rendered moot by Dr. Poliner's failure to rebut the statutory presumption that the peer review actions were taken in compliance with the statutory standards. The people and entities that took those actions were thus immune from suit for money damages under the HCQIA.

However, the court emphasized that Congress limited HCQIA immunity only to money damages; failure to comply with an institution's bylaws, for example, could subject peer reviewers to other sanctions. “The doors to the courts remain open to doctors who are subjected to unjustified or malicious peer review, and they may seek appropriate injunctive and declaratory relief in response to such treatment,” stated the court.

This may be cold comfort to medical care providers who are singled out or unjustly accused of professional wrongdoing, but it should serve to ease the stress on those who must take part in the peer-review process. After all, it is hard enough to sit in judgment on a colleague; harder still to do it with the fear that you could end up spending years fighting a lawsuit and perhaps have to pay a huge money judgment because you did what you thought was necessary to protect patient safety.

Janice G. Inman is Editor-in-Chief of this newsletter.

Peer review systems serve an important purpose in ensuring quality health care is provided to patients. However, one problem with peer review systems is that it they may be used for improper purposes, such as to punish a whistle-blower or a person whom those high up in a medical institution simply dislike. Many are the health care providers who have felt singled out for discipline for unjust reasons. Often, their only recourse has been to sue the members of a peer review team, their bosses and their hospital for torts such as defamation or interference with professional relationships, but because of peer review immunity rules and statutes, such tactics often prove futile. In particular, the U.S. Congress' passage of the Health Care Quality Improvement Act (HCQIA), U.S.C. 42 ” 11101 ' 11152, squelched many hopes for financial compensation for peer-review excesses.

It looked like one doctor had successfully bucked that system in 2003 when he won a huge judgment against a hospital and a superior that had suspended his privileges for 29 days while they investigated allegations of substandard performance against him. After that award was overturned by an appellate court, the doctor took an appeal to the U.S. Court of appeals for the Fifth Circuit. The Fifth Circuit decision in Poliner v. Texas Health Systems, — F.3d —-, 2008 WL 2815533 (C.A.5 (Tex.)), concurring with the lower appellate court, has put another damper on the hopes of unhappy peer-reviewed medical professionals who want to seek monetary damages for their real or perceived injuries. On the other hand, the decision has eased the minds of those who must step up to ensure the quality of medical care, even when it means taking away some or all of a colleague's privileges.

Hospital Conducts Inquiry

The plaintiff in Poliner, interventional cardiologist Dr. Lawrence Poliner, came under increased scrutiny after he failed to recognize that a patient (referred to in court papers as Patient 36), admitted through the emergency room at Presbyterian Hospital of Dallas, had not just one at least partially blocked artery, but a fully blocked one as well. Although Dr. Poliner operated to clear the partially blocked artery, the fully blocked artery went untreated.

Another physician, Dr. Tony Das, saw the missed clogged artery on a monitor in the control room. Dr. Das spoke with Dr. Poliner about it, as did Dr. Charles Levin, the director of the catheterization lab. In an addendum to Patient 36's chart, Dr. Poliner admitted that he missed the totally blocked artery and that, had he known about the more fully blocked artery, he might have treated it first.

The patient later suffered life-threatening complications, and there were questions about whether Dr. Poliner's follow-up care contributed to the patient's deteriorated condition. A critical care specialist, Dr. Kenney Winmeister, had to be brought in to stabilize the patient. Dr. Weinmeister later testified that, had he not intervened, the patient might have died within an hour.

Drs. Das and Weinmeister informed Dr. James Knochel, the chairman of the Internal Medicine Department (IMD), about the Patient 36 incident the following day, May 13, 1998. This, was not the first of Dr. Poliner's patients to come to Dr. Knochel's attention; four other patients' care had recently come under scrutiny, and these cases had been referred by the hospital's Clinical Risk Review Committee (CRRC) to Dr. Knochel and the Internal Medicine Advisory Committee (IMAC), which Dr. Knochel chaired, for review. These cases did not involve similar factual circumstances, but all brought Dr. Poliner's professional judgment into question. Review of some of these cases was still pending when Dr. Knochel learned of the mishap with Patient 36.

Dr. Knochel consulted with some doctors, various hospital administrators and the members of the IMAC on May 13, and decided that he would seek temporary restriction on Dr. Poliner's catheterization lab privileges to allow for an investigation, as provided for in the Medical Staff bylaws.

Abeyance of Privileges

Late on May 13, Dr. Knochel met with Drs. Poliner, Harper, and Levin, and asked Poliner to agree to an abeyance of his catheterization lab privileges, which he did, reluctantly. A letter sent to Dr. Poliner the following day advised him that the abeyance was prompted by Patient 36, and that Patients 3, 9, and 18 had also been referred by the CRRC to the IMD. Dr. Poliner, who was asked to sign the letter and return it that day, requested more time so he could consult with a lawyer, but that request was denied. He therefore signed the letter, and later engaged legal counsel.

Dr. Knochel immediately appointed an ad hoc committee of six cardiologists to review a sample of Dr. Poliner's cases. After reviewing 44 cases, the committee concluded that Dr. Poliner gave substandard care in more than half. The IMAC met on May 27, the thirteenth day of the abeyance, to consider the ad hoc committee report, and recommended conducting additional reviews of echocardiograms and obtaining an outside review. The IMAC also recommended extending the abeyance of Dr. Poliner's cath lab privileges. Dr. Knochel had a letter hand-delivered to Dr. Poliner requesting his consent to the extension. The letter advised Dr. Poliner that the extension was investigational in nature and that the ad hoc committee had reviewed 44 of his cases. The letter also stated that Dr. Poliner could meet with the IMAC to respond to the ad hoc committee review. When Dr. Poliner learned that failure to sign this letter would mean that his abeyance would be converted to a suspension, he signed the abeyance extension request on May 29.

Suspension of Privileges

On June 12, the IMAC unanimously agreed that Dr. Poliner's cath lab and echocardiography privileges should be suspended due to the doctor's: 1) poor clinical judgment; 2) inadequate skills, including angiocardiography and echocardiography; 3) unsatisfactory documentation of medical records; and 4) substandard patient care. Dr. Knochel accepted the recommendation of the IMAC and suspended Dr. Poliner's catheterization lab and echocardiography privileges on June 12.

On Nov. 9, the Hearing Committee issued its recommendations, which concluded that the June 12 suspension should be upheld based on the evidence that was available at the time of the suspension, but that Dr. Poliner's privileges should be reinstated with a condition. Presbyterian's Medical Board accepted the Committee's recommendations. Dr. Poliner appealed the Medical Board's decision to uphold the June 12 suspension to Presbyterian's Committee on Professional Affairs (CPA). The appeal was limited to determining whether Dr. Poliner had substantially received the procedural due process provided for in the bylaws. The CPA determined that he had, and Presbyterian's Board of Trustees upheld that decision.

The Doctor Files Suit

In May 2000, Dr. Poliner and his professional association sued Drs. Knochel, Harper and Levin, as well as Presbyterian, and other doctors who had been involved in the peer review process. The claim was based on federal and state antitrust claims, the Deceptive Trade Practices Act, and on several other tort bases. Defendants moved for summary judgment on the grounds, inter alia, that they were immune under the Health Care Quality Improvement Act (HCQIA). On Sept. 30, 2003, the district court issued its decision.

In analyzing HCQIA immunity, the district court concluded that there were two peer review actions ' the May 14 abeyance and June 12 suspension. The court held, as to the May 14 abeyance, that fact questions remained concerning whether Dr. Knochel's threat to summarily suspend Poliner if he did not agree to the abeyance negated Dr. Poliner's consent. If Dr. Poliner had not freely agreed, the court reasoned that the abeyance was then in fact a summary suspension and, if so, fact issues remained concerning whether the defendants satisfied the HCQIA's standards. Thus, the court denied HCQIA immunity, as well as state law immunity, to Drs. Knochel, Harper and Levin, and Presbyterian.

The court ruled that the remaining defendants, who had served on the ad hoc committee and on the IMAC, were entitled to HCQIA and state-law immunity. After dismissing some other claims, the trial court ruled that fact issues remained as to the remaining tort claims, including defamation, against Drs. Knochel, Harper and Levin, and Presbyterian.

The district court's summary judgment decision reshaped the plaintiff's case theory, which now became as follows: that Dr. Poliner was forced to agree to the abeyances, rendering them summary suspensions; that summary suspensions were permitted under the Medical Staff bylaws only if the medical care provider posed a “present danger to the health of his patients”; that Dr. Poliner posed no such immediate threat; and that the suspension was thus unjustified. Dr. Poliner suggested that he was actually suspended because his solo practice was a competitive threat to the dominant cardiology groups at Presbyterian, and that Dr. Knochel “had it in for” him.

The trial evidence focused on Dr. Poliner's treatment of six patients ' including Patient 36, whose blocked artery he overlooked ' and on whether Dr. Poliner's mistakes with these patients had rendered him a “present danger.” Consistent with a court order, the jury was not told about the ad hoc committee's conclusions and the IMAC's responses, although the jury was told that there was an investigation, that Dr. Poliner was summarily suspended on July 12, and that after the November hearing his privileges were reinstated.

The jury found for Dr. Poliner on all of his remaining claims and awarded him the phenomenal sum of $360 million in damages, $90 million of which were for the defamation claims. Almost all of the damages awarded were for mental anguish, injury to career, and punitive damages. Drs. Harper and Levin settled after trial, but Dr. Poliner elected to recover under his defamation theory against Dr. Knochel and Presbyterian. The district court remitted the defamation damages to $10.5 million for injury to career, $10.5 million for mental anguish, and $1.5 million in punitive damages, and further ordered prejudgment interest, totaling more than $11 million. The two remaining defendants appealed.

The Appeal

The Fifth Circuit began its analysis of the case by looking at the impetus behind Congress' enactment of the Health Care Quality Improvement Act. The Act's stated primary reason for being was to combat an increase in the incidence of medical malpractice and to put in place a system to deter “bad doctors” from simply moving to new states and setting up new practices, unperturbed by their bad safety records in their previous locations. To advance these goals, Congress, through HCQIA, granted limited immunity from suits for money damages to participants in professional peer review actions.

A “professional review action,” as defined by the HCQIA, must
meet certain standards if immunity from suit is to apply to participants in the peer review group. The statute, which establishes four requirements for such immunity, states as follows:

For purposes of the protection set forth in section 11111(a) of this title, a professional review action must be taken '

(1) in the reasonable belief that the action was in the furtherance of quality health care,

(2) after a reasonable effort to obtain the facts of the matter,

(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and

(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).

42 U.S.C. ' 11112(a).

The Act further includes a rebuttable presumption that any professional review action meets the standards for immunity. In order to show otherwise, the aggrieved medical professional must meet a “preponderance of the evidence” standard.

The Fifth Circuit determined that because the May 14 abeyance and the extension of it were separate actions that were imposed for different reasons, they must be evaluated as separate incidents to see if they both complied with ' 11112(a).

A Reasonable Belief

Starting with the question posed by ' 11112(a)(1) ' whether the actions were taken in the “reasonable belief” that they were necessary to protect patient health ' the court found that both actions were. In order to come to this conclusion, the court asked only whether the reviewers could reasonably have believed, with the information they had at the time their decisions were made, that their actions would restrict incompetent behavior or protect patients. There was no requirement that those actions actually produce the result of increased patient safety, nor that, in hindsight, they prove to be the correct moves. The only real caveat here was that the good- or bad-faith intent of the reviewers must not be considered; rather, the test is an objective one for reasonableness under the totality of the circumstances as they existed at the time of the decision.

Clearly, here, with several major mistakes having been recently made by Dr. Poliner, including the precipitating “last straw” of his care of Patient 36, a reasonable decision maker could conclude that suspending privileges for a short time while allowing further review of the situation was an objectively reasonable move. Noted the court, “It was in relatively quick succession that Knochel was presented with separate cases that called into question Poliner's medical judgment. That Poliner had over 20 years of experience and an apparently clean record before these cases only serves to heighten the concern: Why was this experienced physician now having these problems? On May 14, there was ample basis for concern.”

Additionally, the court found that the ad hoc committee's review, upon which the extension of the abeyance rested, was reasonable. That group of six cardiologists reviewed 44 of Dr. Poliner's cases and concluded that he gave substandard care in more than half of the cases. On that basis, their decision to recommend further restriction of privileges while the investigation continued was objectively reasonable, and Dr. Knochel's reliance on their recommendation was also reasonable.

Dr. Poliner attempted to defend the jury's verdict on this issue by arguing that his treatment decision was indeed better and that, had he done as the reviewers originally thought he should, his patients might have fared worse. The court brushed this argument aside, however, noting that the question here was not one of who was right and who was wrong in the end. Instead, the question was whether a reasonable reviewer could have thought restrictions on Dr. Poliner were required at the time of the decision. Stated the court, “If a doctor unhappy with peer review could defeat HCQIA immunity simply by later presenting the testimony of other doctors of a different view from the peer reviewers, or that his treatment decisions proved to be 'right' in their view, HCQIA immunity would be a hollow shield.”

Obtaining the Facts

The court next found that no reasonable jury could conclude that defendants failed to make a “reasonable effort to obtain the facts.” Prior to the incident involving Patient 36, investigations were being conducted of the other suspected occasions on which Dr. Poliner administered substandard care. Dr. Knochel discussed the situation concerning Patient 36 with several doctors, including those who caught Dr. Poliner's mistake on the monitor and the doctor who treated Patient 36 when his condition deteriorated post-operation.

As to the abeyance extension, Dr. Knochel relied on the review of the 44 cases conducted by the ad hoc committee. In fact, the district court had, through summary judgment, established the propriety of the ad hoc committee's review, and that decision went unchallenged. Therefore, Dr. Knochel was entitled to rely on the information provided to him by the ad hoc committee, and that reliance was reasonable.

Dr. Poliner argued that the fact that investigation of his actions had not advanced far enough, under the hospital's own bylaws, to permit for his suspension at the time of the two abeyances indicated that Dr. Knochel could not have made the requisite “reasonable effort to obtain the facts” under the Act. The Fifth Circuit turned this argument aside by saying that HCQIA immunity is based on compliance with a uniform set of national standards, not with a single institution's own bylaws.

Notice and Hearing Opportunity

The third question was whether the defendants had complied with Section 11112(a)(3), which says HCQIA immunity is available only if the peer review action is taken “after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances.” The court found the peer review actions satisfied HCQIA's procedural requirements, as there was an emergency situation (due to the string of errors on Dr. Poliner's part, capped by the error with Patient 36) that justified quick action, in the form of the first abeyance, and he was given adequate notice and an opportunity to be heard soon thereafter.

The ad hoc committee's conclusions also justified defendants' decision to impose another period of abeyance with the same restrictions without immediately giving a hearing. The court noted it would be “difficult to conceive of a meaningfully different response from Defendants. Upon receipt of the ad hoc committee's review, it would have been untenable to restore full privileges while a hearing was scheduled and Poliner was given time to prepare. Had Defendants immediately held a hearing, there would have been no opportunity for Poliner to review the cases at issue, and we have no doubt that we would be considering whether such a hearing was 'fair.'” So, a rushed full hearing would have prejudiced Dr. Poliner's ability to adequately defend himself, and a return to full privileges until such time as he could prepare a full defense might have placed patients in danger. The court noted that balancing the physician's and the patients' interests like this could work a hardship on the physician, but this reflected Congress' intent. Therefore, the court concluded defendants satisfied the notice and hearing requirements, and no reasonable jury could conclude otherwise.

Was the Action Warranted?

The final question that needed an answer before HCQIA immunity could apply in this case was whether each peer review action was taken “in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts.” ' 11112(a)(4). The court concluded that, in both abeyance situations, the temporary restrictions were properly tailored to address the health care concerns that had been raised because they limited Dr. Poliner's cath lab privileges only, leaving untouched his other privileges. In addition, the information on which Dr. Knochel based his decision to limit Dr. Poliner's privileges was not so obviously mistaken or inadequate as to make reliance on it unreasonable. Concluded the court, “There was an objectively reasonable basis for concluding that temporarily restricting Poliner's privileges during the course of the investigation was warranted by the facts then known, and for essentially the reasons given above, we hold that Defendants satisfy this prong.”

Because the requirements of the statute were met, the court, finding the hospital's and Dr. Knockel's actions were immune from money damages, rendered judgment for the defendants.

The court declined to address several other questions ' including the exorbitant damages award to compensate a doctor for less than a month of merely limited privileges ' because these issues were rendered moot by Dr. Poliner's failure to rebut the statutory presumption that the peer review actions were taken in compliance with the statutory standards. The people and entities that took those actions were thus immune from suit for money damages under the HCQIA.

However, the court emphasized that Congress limited HCQIA immunity only to money damages; failure to comply with an institution's bylaws, for example, could subject peer reviewers to other sanctions. “The doors to the courts remain open to doctors who are subjected to unjustified or malicious peer review, and they may seek appropriate injunctive and declaratory relief in response to such treatment,” stated the court.

This may be cold comfort to medical care providers who are singled out or unjustly accused of professional wrongdoing, but it should serve to ease the stress on those who must take part in the peer-review process. After all, it is hard enough to sit in judgment on a colleague; harder still to do it with the fear that you could end up spending years fighting a lawsuit and perhaps have to pay a huge money judgment because you did what you thought was necessary to protect patient safety.

Janice G. Inman is Editor-in-Chief of this newsletter.