By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
On March 29, 2017, a Houston heart surgeon was awarded $6.4 million in damages after a jury found that Memorial Hermann Health System (Memorial) defamed his reputation. The suit arose out of a peer review proceeding against Dr. Miguel Gomez. He claimed that the peer review was not about the quality of health care, but was to retaliate against him for moving his lucrative practice to a competing hospital.
Dr. Gomez sued Memorial in 2012, contending the hospital launched a “whisper campaign” to smear his reputation to keep patients from following him to his new location.
Hospitals and Peer Review.
Dr. Gomez’s case involved peer review, a confidential process conducted by committees of physicians to detect and discipline physicians whose quality of care is not up to par. Traditionally, it had been used solely to protect patients from physicians whose medical skills are not what they should be or who have a number of adverse outcomes. Dr. Gomez alleged that Memorial completely misused the peer review process, manipulating data on the outcome of his surgeries to suggest that his patients were more likely to die than those of other surgeons.
This case may help open the eyes of the public and the courts to the many cases in which this happens. It highlighted the fierce battle among hospitals for market share and the lengths to which they may go to protect their territory. Hospitals fight hard to hold onto specialists like Dr. Gomez, who perform procedures with high profit margins and who bring in a large amount of income to the hospital.
For more information on the importance of the peer review process, click here to visit our web page.
The Jury’s Verdict in an Unusual Case.
The jury determined that a comment from a Memorial employee about Gomez’s “bad quality, high mortality rates, unnecessary surgeries,” was false and damaged Gomez’s reputation. The jury also found that another employee’s comment about Memorial’s decision to share Gomez’s peer review data with referring cardiologists was false and defamatory. Additionally, the jury also found Memorial acted with malice by making false statements about the surgical competence of Dr. Gomez.
Peer Review Privilege Difficult to Overcome for a Physician Plaintiff.
The federal Health Care Quality Improvement Act (HCQIA) provides a privilege from civil liability for hospitals and medical staff members involved in the peer review process. Additionally, most states have state laws in place which provide even greater protections from suits such as the one field by Dr. Gomez. This greatly stacks the deck against physicians who are wronged by such misconduct and makes it very hard for them to receive justice, especially in the court system. Often a physician seeking relief from the courts must plead and prove “intentional malice”or “intentional fraud” by those involved, or some other standard that is artificially high and difficult to overcome.
Dr. Gomez’s case is a rare one. Most cases such as this do not make it to trial. They are either dismissed by the courts on motions to dismiss or for summary judgment, or they are settled.
Economic Credentialing or Sham Peer Review.
What Dr. Gomez was subjected to is known as “economic credentialing.” This is when decisions are made by a hospital or medical staff to take adverse action against a physician based on monetary or income factors instead of based on quality of care standards. Given that peer review is supposed to be based on protecting patients from those with substandard medical skills, using the peer review process because of economic considerations is a corruption of the peer review process.
Most often physicians find themselves the victim of such phony or sham peer review complaints filed by a competing physician or medical group. Our firm is routinely consulted by physicians complaining of such actions. However, often the physician does not have the financial resources to fight a protracted peer review battle and then proceed in court, if necessary, as Dr. Gomez did. Hospitals and medical staff leadership need to become more sensitive to this issue and act to stop such proceedings when there is clearly little or no evidence of a physician’s incompetence. Unfortunately, they most often do not.
As Dr. Gomez’s verdict shows, hospitals do improperly use the peer review process to protect market share by targeting doctors who don’t funnel business to their facilities and networks. This verdict should send a strong message to hospitals about the consequences of misusing the peer review process for business purposes.
To read one of my prior blogs on the confidentiality of peer review, click here.
Will Dr. Gomez’s Case Survive Appeal?
The real question is whether or not Dr. Gomez’s case will survive appellate review. Other court cases have made it as far as Dr. Gomez’s case only to be reversed by an appellate court. Hopefully, the evidence and legal arguments made in this trial will be sufficient to convince any court of appeals that the jury and trial judge’s decisions were correct. Otherwise, it will stand for the proposition that individual physicians have no remedy for such egregious and intentional misconduct.
Don’t Wait Until It’s Too Late, Contact a Health Law Attorney Experienced in the Process of Peer Reviews.
If you are the subject of a peer review proceeding, immediately retain experienced, knowledgeable health care counsel to represent you. The attorneys of The Health Law Firm have experience in most, if not all, types of “fair hearings” involving health care issues and health care providers.
At the Health Law Firm we provide legal services for physicians and other health care providers. This includes nurse practitioners, nurses, dentists, psychologists, psychiatrists, mental health counselors, medical students and interns, hospitals, ambulatory surgical centers, pain management clinics, nursing homes, and any other health care provider. We represent facilities, individuals, groups and institutions in contracts, sales, mergers and acquisitions. We also represent physicians and health care providers in complex litigation in both state and federal courts.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
Sexel. L.M. “Heart surgeon wins $6.4 million verdict in defamation case against Memorial Hermann.” Houston Chronicle. (March 29, 2017). Web.
Kane Russell Coleman Logan PC. “Houston Physician Wins Defamation Suit in Connection with Peer Review.” AHLA Weekly. (March 30, 2017). Web.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.
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