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.