Larry's Legal Lessons: Quality Assurance Reviewers Enjoy Immunity

On July 23, 2008, in Lawrence R. Poliner, MD v. Texas Health Systems, doing business as Presbyterian Hospital of Dallas and James Knockel, MD, (No. 06-11235, http://www.ca5.uscourts.gov/Opinions.aspx,) the U.S. Court of Appeals for the 5th Circuit (3 to 0) tossed out a $33 million judgment won by a cardiologist after a jury trial alleging defamation. This case should send a message to fire and EMS personnel involved in quality assurance reviews of EMS runs: if you currently do not have statutory protection from civil liability in your state laws, encourage your elected officials to get you this protection.

Dr. Poliner's lawsuit, against the hospital and the doctors serving on the hospital's peer review committee, was filed after his privileges as a cardiologist were suspended during the 29-day investigation period, and then further suspended for five months after the investigation confirmed serious medical deficiencies.

Fortunately for the hospital and the peer review doctors, the Court of Appeals concluded that they all the defendants enjoyed immunity since the peer review committee, in the words of the federal statute, "acted in the reasonable belief that the action was in furtherance of quality health care."

State Laws Protect EMS Quality Reviews
Some states have enacted similar laws protecting EMS quality assurance reviewers. In Ohio, for example, the General Assembly in 2003 passed and the governor signed into law Ohio Revised Code 4765.49, "Emergency Medical Personnel and Agencies - Immunity" (http://codes.ohio.gov/). It includes the following:

"(I) A person authorized by an emergency medical service organization to review the performance of first responders, EMTs-basic, EMTs-I, and paramedics or to administer quality assurance programs is not liable in damages in a civil action for injury, death, or loss to person or property resulting from such person's acts or omissions in the performance of the person's duties, unless an act or omission constitutes willful or wanton misconduct." Effective date: 03-19-2003; 04-05-2007.

In 2000, the Ohio General Assembly enacted a statute requiring EMS departments to have a QA program. Fortunately, the statute also prohibits disclosure of QA documents in civil litigation, and grants immunity to the EMS departments. Ohio Rev. Code 4765.12. Section (B) provides in part:

"Information generated solely for use in a peer review or quality assurance program conducted on behalf of an emergency medical service organization is not a public record under section 149.43 of the Revised Code. Such information, and any discussion conducted in the course of a peer review or quality assurance program conducted on behalf of an emergency medical service organization, is not subject to discovery in a civil action and shall not be introduced in evidence in a civil action against the emergency medical service organization on whose behalf the information was generated or the discussion occurred.

No emergency medical service organization on whose behalf a peer review or quality assurance program is conducted, and no person who conducts such a program, because of performing such functions, shall be liable in a civil action for betrayal of professional confidence or otherwise in the absence of willful or wanton misconduct." Effective date: 11-03-2000.

Verdict: $90 Million In Mental Anguish, $100 Million In Punitive Damages
We have all read about outrageous jury verdicts. The jury verdict in this Dallas case makes little sense, when compared to the facts as set forth by the 5th Circuit.

Dr. Lawrence R. Poliner, a cardiologist who worked at Presbyterian Hospital of Dallas for 20 years was a solo practitioner. His catheterization lab and echocardiography privileges were suspended after complaints were received from fellow doctors and patients. The peer review committee as it began its investigation, initially restricted his privileges for 16 days, and then extended to 29 days - based on recommendation of three doctors on the internal medicine advisory committee (IMAC). This included Dr. James Knockel, who chaired the IMAC and was also head of the hospital's Internal Medicine Department. The IMAC expanded the investigation and asked six cardiologists to review numerous patient files. This full review led the hospital to suspended Dr. Poliner's privileges for an additional five months.

The Court of Appeals noted that Dr. Poliner apparently had a clean record for 20 years. But "in relatively quick succession" the hospital was presented with at least 26 cases where his medical skills were questioned. The IMAC had six cardiologists review 444 of his cases and concluded he gave "substandard care in more than half of the cases."

Patient number 36, for example, came to the emergency room with a heart attack. Dr. Poliner properly diagnosed that the patient had a partial block of his right coronary artery, and opened it with an emergency procedure. But he failed to diagnose that the patient's left anterior descending artery was completely blocked.

The patient suffered internal bleeding and went into shock. Dr. Weinmeister, a critical care physician, was called in to treat the patient. He later testified that but for his intervention, the patient would have died within one hour. The following day, Dr. Weinmeister informed Dr. Knockel of the incident and this led to the peer review investigation.

Dr. Poliner filed a lawsuit in U.S. District Court in Dallas, alleging defamation against both the hospital, and Dr. Knockel and other peer review doctors. The federal trial judge dismissed the portion of the lawsuit regarding the five-month suspension following the peer review investigation, because peer reviewers enjoy immunity under the federal 1986 Health Care Quality Improvement Act, 42 USC 11101, et seq. (HCQIA). The trial judge, however, held that a jury should decide if the 29-day suspension of privileges during the initial investigation was appropriate.

The jury found for Dr. Poliner, - big time. While he could prove only $10,000 in loss of income from the loss of privileges during this 29-day period, the jury awarded him $90 million for mental anguish and injury to his reputation, and $110 million in punitive damages. The trial judge reduced these damages to $33 million, including prejudgment interest.

Federal Immunity Statute In Place
The hospital and the peer review doctors wisely filed an appeal to the U.S. Court of Appeals for the 5th Circuit. The Court set aside the jury verdict and rendered judgment for all defendants.

The 5th Circuit noted, "Congress passed the Health Care Quality Improvement Act because '[t]he increasing occurrence of medical malpractice and the need to improve the quality of medical care,' and because '[t]here is a national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance.'" 42 USC 11101(1),(2). The Court also noted that Congress "viewed peer review as an important component of remedying these problems." Congress further "recognized that lawsuit for money damages dampened the willingness of people to participate in peer review."

The HCQIA established four requirements for immunity: "a profession review action must be taken:

  1. in the reasonable belief that the action was in 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 a reasonable effort to obtain facts after meting the requirement of paragraph (3)."

The 5th Circuit found that the peer review committee met the four requirements, and therefore the hospital and the peer review doctors are immune from liability. "The immunity from money damages may work harsh outcomes in certain circumstances, but that results from Congress' decision that the system-wide benefit of robust peer review in rooting out incompetent physicians, protecting patients, and preventing malpractice outweighs those occasional harsh results..."

The 5th Circuit concluded, "Not only has [Dr.] Poliner failed to rebut the statutory presumption that the peer review actions were taken in compliance with the statutory standards, the evidence independently demonstrates that the peer review actions met the statutory requirements."

Conclusion
Quality assurance reviews of EMS run reports, and documentation on skill proficiencies of paramedics and EMTs, should be protected by state statutes from disclosure in lawsuits. Peer reviewers who act in good faith should be immune from liability by patients and EMS personnel.

If you do not have a statute in your state, look at your state laws protecting hospitals and medical peer reviewers and urge your state legislators to enact similar protection for EMS.


LARRY BENNETT, a Firehouse.com Contributing Editor, is an attorney and the Deputy Director of Fire Science Education at the University of Cincinnati's Fire Science Department. He has been a volunteer firefighter/EMT for the past 27 years, and is the author of a new textbook, Fire Service Law, that is used by the National Fire Academy (NFA) in its distant learning course, Political and Legal Foundations of Fire Protection. The NFA appointed Larry as their Subject Matter Expert to update the curriculum in this course. and he serves on the NFPA 1500 Fire Service Occupational Safety and Health Committee. Larry writes a free Fire & EMS and Safety Law newsletter which you can sign up online to receive free. Larry writes a free Fire & EMS Law newsletter that can be read at the UC Fire Science web page To read Larry's complete biography and view his archived articles, click here. You can reach Larry by e-mail at lawrence.bennett@uc.edu.

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