Court
Upholds Jury's Findings in Poliner!
What Does this Do to Medical Staff Peer Review and Investigations?
Audio CD
Recorded April 12,
2006
Faculty: Barbara
Blackmond & Phil Zarone
In August 2004, a Texas jury
awarded a physician $366 million in his lawsuit against a hospital
and physician leaders, claiming that the "forced abeyance" of
his clinical privileges violated the hospital's bylaws, defamed
him, tortiously interfered with his business relations and caused
him mental anguish and emotional distress.
The Federal District Court for the Northern
District of Texas upheld the basis for the jury's decision but
not the damages. It ordered mediation to determine the appropriate
damages award.
What Did the Court Say?
In response to almost every argument made by the defendants,
the court recited testimony from the trial that:
- Dr. Poliner was threatened with suspension
of all of his hospital privileges if he did not agree to an
abeyance of his cath lab privileges, even though the defendants
did not have enough information at that time to determine whether
he posed a danger to patients;
- Dr. Poliner was not offered any less severe
options;
- None of the defendants would discuss the
problem cases with Dr. Poliner; and
- Dr. Poliner was told he could not consult
an attorney.
This provides some insight into how best to avoid the result in this case.
The court also ruled that by not raising some critical arguments earlier, the
hospital had waived them.
What Will This Mean to Peer Review
and Investigations?
In this CD, HortySpringer attorneys
Barbara Blackmond and Phil Zarone discuss the Poliner decision
and its potential impact for other hospitals and medical staff
leaders. Specifically, Barbara and Phil discuss:
-
Does this result change
peer review? When, if ever, can you suspend privileges? Must
you wait until there is imminent harm to patients? What constitutes "imminent" danger?
How can you avoid the pitfalls of Poliner?
-
The steps for conducting a
reasonable investigation
-
How can you preserve HCQIA
and state peer review immunity?
What bylaws/credentialing policy language is essential?
-
How do you document progressive
steps and build a record to defend the ultimate professional
review action if that becomes necessary?
-
How do you implement
a reasonable "precautionary" suspension
or restriction process and offer the physician the option of
voluntarily refraining from exercising privileges (in a truly
voluntary way that avoids what went wrong in the Poliner case)?
-
Key elements and steps necessary
to establish reasonableness
We think this court interpreted
the law incorrectly in several ways (and lawyers for hospitals
and physician leaders should be prepared to help other courts properly
interpret the Health Care Quality Improvement Act). But, for the
near future, this case may have a chilling effect on physicians'
willingness to participate in peer review matters, and, we can
expect attorneys for physicians who challenge professional review
actions to couch what was done in terms of what went wrong in Poliner.
We talk about how to live with the Poliner decision and
still carefully carry out the peer review and performance improvement
activities that are essential for the best interest of patients.
Audio CD: $225
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