Medical Malpractice: A Peer in the Headlights
U.S. Court of Appeals for the Fifth Circuit: Lawrence R. Poliner, MD V. Texas Health Systems
For years there’s been a national debate about the impact of medical malpractice actions: Should damage awards be capped? Are lawsuits putting doctors out of business? Should juries even have the right to decide if a doctor committed malpractice? Or should doctors receive preferential treatment in our legal system so they can practice medicine without thinking about malpractice actions?
Freeing doctors from potential lawsuits might sound good in theory, but it raises some serious questions about how safe we would be as potential patients.
The Fifth Circuit had to deal with a variation on this question: Can Peer Review Committees (hospital committees made up of doctors who evaluate less-than-optimal care by other doctors at the hospital) be sued for money damages based on their findings? Dr. Poliner was reviewed by such a committee. His medical judgment treating a number of patients had been previously questioned and criticized. His treatment of “patient 36” caused a peer review committee to temporarily restrict his hospital privileges. That decision went down like Castor oil. Doctor Poliner sued the hospital for defamation, intentional infliction of emotional distress and various contract claims.
A trial jury sided with the aggrieved doctor. It awarded him over $200 million in damages. The verdict was subsequently reduced to $33 million by the judge. The Fifth Circuit Court Appeals reversed and ruled in favor of the defendants. It held that under federal law, peer reviewers had immunity and could not be sued by the doctor. More importantly, it found “That the ad hoc committee concluded that Poliner gave substandard care in half of the cases reviewed, and considering the seriousness of the diagnostic error with Patient 36... Defendants were fully warranted in concluding that failing to impose further temporary restrictions ‘may result’ in an imminent danger.”
Back to the first point: There’s been a lot of debate about malpractice cases. Now we know that hospitals have an absolute right to review their doctors and take action. Good. They should. Like the court said, robust peer review helps root out incompetent physicians, protects patients and prevents malpractice. But what about the cases they review when there's “substandard care” and they don’t take action against a doctor? The next patient may well be at serious risk, and someone other than the patient is willing to take it.
That unknowing patient at potential risk could be any of us. If we get injured (and medical mistakes can cause very big injuries), we don’t have the right to fire the doctor or restrict his practice. What we have is the right to bring a medical malpractice action. Take that away and we’re left to what peer reviewers do or don’t do when they’re confronted with substandard care by one of their own.
Sounds like a prescription for trouble.
