Larry's Legal Lessons: Quality Assurance Reviewers Enjoy Immunity

This case should remind fire and EMS personnel that, if you currently do not have statutory protection from civil liability in your state laws, encourage your elected officials to get you this protection.


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.

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