This is a series describing the ten important pro-immunity peer review cases where court have granted immunity to peer reviewers under the Health Care Quality Improvement Act of 1986, 42 U.S.C. Sec. 11112 (“HCQIA”).
No. 1: Poliner v. Texas Health Systems, 537 F 3d 368 (5th Cir., 2008)
The Fifth Circuit Court of Appeals reversed the $33 Million Dollar Judgment awarded the plaintiff in Poliner. The Poliner case raised a lot of eyebrows both because of the amount of the original damages award of $360 Million Dollars and its success in overcoming immunity claims under the Health Care Quality Improvement Act of 1986 ("HCQIA"). The trial court reduced the award to $33 Million Dollars prior to the appeal. Dr. Poliner, an interventional cardiologist, claimed that he was forced to agree to an abeyance of his privileges in lieu of a summary suspension and was prevented from performing procedures in the the defendant's catherization laboratory while an investigation was pending, only posted about $10,000 dollars in actual damages. His case went to a jury solely on defamation grounds.
The Court of Appeals found that HCQIA immunity applied to the defamation claims as well as the hospital had legitimate concerns about an apparent deterioration in the quality of care provided by Dr. Poliner in the catheterization lab. The court found that the peer review action was taken in the reasonable belief that the action was in furtherance of quality health care.
The "reasonable belief" standard of HCQIA is satisfied if "the reviewers, with the information available to them at the time of the professional review action, would reasonably have concluded that their action would restrict incompetent behavior or would protect patients."
The court noted that it does not matter whether or not the conclusions reached by the peer review panel were in fact correct and that the good faith or bad faith of the reviewers is irrelevant, because of the objective nature of the test. The Court determined that no reasonable observer could dispute the fact that the hospital made a reasonable effort to obtain the facts. The Court recognized the potential for abuse of peer review, but suggested that injunctive or declaratory relief was the appropriate avenue for relief.
It bears emphasizing that this does not mean that hospitals and peer review committees that comply with the HCQIA's requirements are free to violate the applicable bylaws and state law. The HCQIA does not gainsay the potential for abuse of the peer review process. To the contrary, Congress limited the reach of immunity to money damages. The doors to the courts remain open to doctors who are subjected to unjustified or malicious peer review, and they may seek appropriate injunctions and declaratory relief in response to such treatment.
This provides relatively cold comfort given the cost of litigation these days.In some respects Dr. Poliner's initial success, given his relatively low actual damages probably preordained this result. The Court indicated that it didn't see any antitrust damages and that it probably would have reversed the judgment due to excessive damages being awarded.
Nor need we reach the compelling arguments that, at the very least, we would have to reverse and remand for a new trial because of the jury's excessive verdict and manifest trial errors.