• The Poliner Case - Score One for Peer Review Immunity but Proceed with Caution If You Are In Wisconsin!
  • September 5, 2008 | Authors: Sarah Edelman Coyne; Alyce C. Katayama
  • Law Firms: Quarles & Brady LLP - Madison Office; Quarles & Brady LLP - Milwaukee Office
  • The Bottom Line

    Wisconsin hospitals should keep the Wisconsin peer review immunity statute in mind when considering the lessons of the Poliner v. Texas Health Systems case, a new federal court decision that represents a very positive development on the peer review landscape. Poliner strengthens the ability of  practitioners engaged in peer review to use the Health Care Quality Improvement Act (HCQIA) shield to deflect claims by the reviewed practitioner.

    We recently told you about the lessons to learn from the Wisconsin Supreme Court about the Wisconsin peer review immunity statute, Wis. Stat. § 146.37. http://www.quarles.com/Publications/detail.aspx?publication=395.  So how do you make sense of the fact that there are two immunity laws, federal and state? The answer is that a Wisconsin health care institution and its staff performing peer reviews have two shields - immunity under federal law and immunity under state law. However, the requirements are slightly different. Hospitals should structure their peer review processes (and medical staff bylaws and policies) to meet the requirements of both federal and state immunity laws. It would be shortsighted for Wisconsin hospitals to revise their policies and bylaws to reflect the Poliner case without also incorporating the parameters to secure immunity under Wisconsin law as well.

    The goal of both state and federal peer review is to protect and promote the candid review of the quality of health services. A peer review committee in Wisconsin has two sources of protection: (1) federal (the “HCQIA”) and (2) state (Wis. Stat. § 146.37). Now we have some good case law on the federal front as well, overturning a $33 million verdict and holding that a group of physicians at a Texas hospital was entitled to immunity for peer review despite the (reviewed) physician's contentions that they had acted maliciously and in bad faith.

    In addition to being generally reassuring on the HCQIA immunity front, the Poliner case sheds some light on the concept of summary suspension or precautionary suspension.

    Background of The Poliner Case

    In Poliner v. Texas Health Systems, No. 06-11235, 2008 WL 2815533 (5th Cir. July 23, 2008), the United States Court of Appeals for the Fifth Circuit reversed the lower court and ruled that a hospital and its peer review committee were entitled to immunity, thus nullifying the $33.5 million jury verdict in the reviewed practitioner's favor. That practitioner was Dr. Poliner, an interventional cardiologist with a solo practice at Presbyterian Hospital of Dallas (“Presbyterian”). While working in Presbyterian’s cardiac catheterization (“cath”) lab, Poliner made a diagnostic error, missing the fact that a patient's left anterior descending artery (“LAD”) was completely blocked. The fact that the blocked LAD was apparent on films and should have been caught by Poliner called his abilities into question.

    The following day, the chairman of the Internal Medicine Department, Dr. Knochel, learned of Poliner's LAD patient. In addition to the LAD patient, four of Poliner’s other patients had been referred within the previous 15 months, by the hospital’s Clinical Risk Review Committee (“CRRC”), to Knochel and the Internal Medicine Advisory Committee (“IMAC”) for review. In each case, Poliner’s medical judgment had been questioned and to an extent criticized.

    Following notice of Poliner’s LAD patient, and after consultation with four other physicians with knowledge of the LAD patient, Knochel sought a temporary restriction of Poliner's cath lab and echocardiography privileges in order to permit an investigation. Poliner’s other privileges at the hospital were not affected by the temporary restriction. Knochel offered Poliner a choice of either a temporary restriction of privileges, known as an abeyance, or a suspension of his privileges. Poliner accepted the abeyance, which imposed a temporary restriction of his privileges for 14 days. In the abeyance letter restricting his privileges, Poliner was advised of the patients of concern, and he was told that an ad hoc committee of cardiologists were going to be appointed to conduct a review and that he would have an opportunity to respond to any concerns raised. The ad hoc committee reviewed 44 of Poliner's cases and concluded that he gave substandard care in more than half. On the 13th day of the 14-day restriction, based on the review of the 44 cases, the IMAC recommended additional reviews and an extension of the restrictions on his privileges. Poliner agreed to the extension on the 15th day of the original restrictions. Altogether, the temporary limited restrictions were in place for fewer than 29 days. At the end of the 29 days the IMAC met, considered Poliner's record, heard Poliner’s response to the concerns raised about his patient care and recommended a suspension of Poliner's cath lab and echocardiogram privileges, which Knochel accepted and implemented. 

    Poliner received a hearing concerning the suspension of his privileges five months later. The hearing committee found that the summary suspension of Poliner’s privileges was justified based upon the evidence available at that time and recommended that Poliner’s privileges be restored with conditions. Poliner sought appeal of his summary suspension to the Committee on Professional Affairs (“COPA”), but his appeal was limited to a determination of whether he had been substantially provided with the procedural due process provided in the hospital bylaws — the COPA found that Poliner had in fact been afforded procedural due process.

    Several years later, Poliner and his professional association sued Knochel, the hospital, and other doctors who had been involved in the peer review process. Poliner claimed damages from the limited restrictions on his privileges, the extension of those restrictions and the suspension of privileges. The District Court dismissed the defendants who had served on the ad hoc committee and the IMAC because they had immunity under HCQIA, but held the questions of Knochel and Presbyterian’s immunity were questions of fact for the jury. Thus, the District Court allowed the case to proceed to a jury trial on only the alleged damages incurred from the fewer-than-29 days of limited restrictions on Poliner’s privileges. The jury, due to a pre-trial order, was unaware that Poliner was subsequently suspended for five months after the 29-day temporary suspension. The jury ultimately awarded Poliner $366 million in damages for defamation, mental anguish and punitive damages and the District Court awarded Poliner $33.5 million following a remittitur of damages. However, on appeal, the Fifth Circuit reversed the District Court and dismissed Poliner’s remaining claims, holding that the defendants were immune under HCQIA.

    The Health Care Quality Improvement Act in a Nutshell

    HCQIA sets forth four requirements to obtain immunity for physicians and institutions participating in a peer review activity or, in HCQIA terms, a "professional review action." A peer review action must be taken:

    (1) in the reasonable belief that the action is in the 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 are enacted 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 reasonable effort to obtain facts and after meeting the requirement of paragraph (3).

    The Poliner Decision with Regard to HCQIA Immunity:

    Each of the four prongs required for HCQIA peer review immunity was addressed by the Poliner court. Below we discuss the particular lessons for Wisconsin hospitals.

    First Prong: A Reasonable Belief that the Peer Review Action is in the Furtherance of Quality Health Care is Presumed (but in Wisconsin, Document Good Faith!)

    HCQIA creates a presumption, rebuttable by a preponderance of the evidence, that a peer review action is done for quality reasons. The court held that Poliner failed to rebut the statutory presumption that the peer review actions were taken in compliance with the statutory standards.

    The court clarified that what mattered, from a HCQIA standpoint, was whether the physicians on the peer review committee would reasonably have concluded, with the information available to them at the time, that their action would restrict incompetent behavior or would protect patients. The court did not require an actual improvement of the quality of health care, good faith of the reviewers or that conclusions reached by the peer reviews were in fact correct. Note that this is distinct from achieving immunity under Wisconsin's peer review statute, which explicitly requires good faith.

    Restricting Dr. Poliner's cath lab privileges furthered quality health care, in the Court's view, given that his medical judgment had reasonably been called into question in missing the blocked artery, which was a critical diagnostic error, coupled with the problems with Poliner’s other patients.

    Second Prong: Document the Reasonable Inquiry into the Facts Before Any Restriction of Privileges Occurs!

    This prong was where Poliner really got interesting. A peer reviewer will be granted immunity under the HCQIA only after a reasonable effort to obtain the facts has occurred. The Poliner court held that the defendants had made a reasonable effort to obtain the facts by speaking with doctors knowledgeable about the case, reviewing charts of four other problematic patients, and they relied on the review of the ad hoc committee of the underlying charts before the restriction was extended. This was good enough! The court held that in both peer review actions the efforts to obtain the facts were reasonable. Practitioners under review tend to argue in peer review litigation that the committees did not make a reasonable inquiry — the Poliner court made this argument more defensible for hospitals and the physicians on their peer review committees.

    Wisconsin hospitals should recall that the record of peer review inquiry is statutorily protected by the peer review confidentiality statute (Wis. Stat. § 146.38), which works in tandem with the immunity statute.

    Third Prong: Notice and Hearing (or Other Fair Processes) are Not Required for Temporary Restrictions in Most Cases.

    HCQIA requires notice and hearing (or other equivalent process) before a physician's privileges are restricted unless there is no "professional review action" based on the physician's competence or conduct or where the restriction of clinical privileges is for fewer than 14 days while “an investigation is being conducted to determine the need for a professional review action.” In addition, there is an emergency provision that allows for an immediate suspension or restriction of clinical privileges if a failure to act “may result in an imminent danger to the health of any individual.”

    The court explained that Poliner’s case demonstrated “how the process provisions of the HCQIA work in tandem: legitimate concerns lead to temporary restrictions and an investigation; an investigation reveals that a doctor may in fact be a danger; and in response, the hospital continues to limit the physician’s privileges.” The court held that the initial limited restrictions fit within HCQIA immunity parameters and that the extension was taken after adequate notice and procedures that were fair to Poliner under the circumstances. By taking 29 days to schedule a hearing, the defendants allowed for a fully informed and considered decision resting on all the facts and also created a process in which Poliner had the opportunity to confront the facts and give his explanations.

    The court held that notice and hearing procedures were not required for the original limited restriction because it “was a restriction of privileges that was imposed to allow for an investigation to determine whether other action, such as a suspension, was necessary.” Despite the fact that Poliner did not agree to the extension until the 15th day of the limited restriction, the court held that, for purposes of immunity, the decision to restrict his privileges was made within the required 14 days.

    The extension, the court reasoned, fit under the HCQIA’s “emergency provision” because lifting the restriction at that time may have resulted in imminent danger, given that the ad hoc committee had concluded that Poliner gave substandard care in half of the cases reviewed and due to the seriousness of missing the blocked artery. The court also held that the defendants imposed the extension only after adapting procedures that were fair to Poliner under the circumstances. The court held that the ad hoc committee findings reasonably presented an imminent danger, and the letter restricting his privileges provided the notice and procedures fair to Poliner because it informed him of what was happening, and why, before the extension. The court also emphasized “that the restriction on privileges was temporary in nature and limited in scope, tailored to the objective facts before the hospital officials.” Thus, under the circumstances, Poliner received fair procedures.

    Fourth Prong: The Hospital Peer Reviewers Had Reasonable Belief that the Action Was Warranted by the Facts Known at That Time.

    Finally, a peer review action must be taken “in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting” the procedural requirements. A court’s analysis for this requirement is similar to the analysis of whether the peer review action was taken in furtherance of quality health care. The court held that “[t]here was an objectively reasonable basis for concluding that temporarily restricting Poliner’s privileges during the course of the investigation was warranted.” This is because the temporary restrictions were tailored to the health care concerns raised by affecting only Poliner’s cath lab privileges. Also, “the information relayed to Knochel was not so obviously mistaken or inadequate as to make reliance on it unreasonable.”

    What Does This Mean for Wisconsin Hospitals?

    • Don't lose sight of the double opportunity for immunity: Poliner strengthens the federal immunity, and Wisconsin has its own peer review immunity statute. Structure your process and documents to fit both laws!
    • Courts have traditionally sided with hospitals in peer review disputes. Poliner was an exception at the lower court level and now has been reversed. Be confident in your peer review actions! Do not be afraid to act in the best interest of your patients.
    • Remember to document the evidence that the peer reviewers acted in good faith, despite all the press you will see that Poliner does not require this showing, because it matters in Wisconsin!
    • In documenting the peer review process, be able to show what each level of peer reviewer considered in coming to their conclusions. The case law has shown us that what matters is what those reviewers considered at the time — make sure the record allows reviewers to discern this after the fact.
    • Temporary restrictions of the physician's privileges while you are investigating are not always the right decision, but do not be afraid to do it when patient care requires it — remember the HCQIA emergency restriction. Analyze whether notice and hearing will be required by evaluating (1) whether the physician's competence or conduct is at issue and (2) the length of the restriction.