Physician Seeks Supreme Court Review of HCQIA Decision

A petition for writ of certiorari was filed on October 21, 2008 (Poliner v. Texas Health Systems, U.S., No. 08-543, 10/21/08) asking the United States Supreme Court to review the decision concerning immunity under the Health Care Quality Improvement Act (HCQIA) handed down by the 5th Circuit U.S. Court of Appeals in Poliner v. Texas Health Sys. (No. 06-11235, 5th Cir. July 23, 2008). In July, the 5th Circuit reversed a lower court decision that had awarded $33 million to Dr. Poliner, a Texas cardiologist, who claimed that Presbyterian Hospital’s (the “Hospital”) temporary restriction of his catheterization lab privileges was improper.

The multi-million dollar judgment was based upon the temporary and limited restriction of Dr. Poliner’s privileges by the Hospital for an investigation of his handling of several patients, which resulted in the five month suspension of his cath lab and echocardiograph privileges. In the suit against both the Hospital and the physicians involved in the peer review, the District Court found that while the five month suspension by the Hospital enjoyed immunity from money damages under HCQIA, a jury should decide whether the temporary restriction of the doctor’s privileges during peer review enjoyed the same immunity.

A jury subsequently found for Dr. Poliner on his claims. The 5th Circuit reversed in July, finding that the defendants were entitled to complete immunity from money damages under HCQIA for restriction of the physician’s privileges during peer review. Noting that the suspension was limited and temporary, the Court of Appeals found the defendants’ action met the four requirements for immunity under HCQIA, including that a professional review action be taken in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts. As HCQIA includes a presumption that a professional review action meets the standards for immunity unless those standards are rebutted by a preponderance of the evidence, the Court of Appeals found that Dr. Poliner failed to rebut the presumption.

The recently filed petition asking for review by the Supreme Court states that the 5th Circuit misinterpreted the “reasonable belief” standard under HCQIA by not reviewing any evidence regarding subjective motivations in the case and further argued that this disregard of important facts turned the limited immunity intended by Congress under HCQIA into absolute immunity. The petition also argued that while various courts of appeals have described the type of evidence that cannot be used to rebut the presumption of HCQIA immunity, the courts do not elaborate on what types of evidence would be sufficient to rebut the presumption and continue to exclude important evidence in determining whether HCQIA immunity has been met, such as expert opinions and subjective motivations. According to the petition, this lack of permissible evidence enables absolute immunity when the presumption of HCQIA immunity cannot easily be rebutted. Arguing that the District Court properly submitted questions to the jury as intended by Congress when questions of fact remained under the HCQIA four-prong test as to whether actions were reasonable, the petition stated that the 5th Circuit decision improperly usurped the fact-finding role of the jury by reversing the lower court decision.