On July 23, 2008, the Fifth Circuit Court of Appeals in Poliner v. Texas Health System reversed the district court’s now infamous ruling in favor of Dr. Poliner and held that HCQIA immunity applied to the defendants.
In 2003, the Poliner case grabbed national attention when the physician was awarded over 366 Million Dollars for an adverse action taken against him by a hospital. Dr. Poliner was a cardiologist practicing at Presbyterian Hospital in Dallas, Texas. During an investigation into Dr. Poliner’s care, hospital representatives asked Dr. Poliner to agree not to exercise his privileges and told Dr. Poliner the alternative was summary suspension. He was given very little time to make a decision and Dr. Poliner’s request for an extension to allow consultation with an attorney was refused by the hospital. Dr. Poliner agreed not to exercise his privileges. Less than 30 days later, a suspension was also imposed. Eventually, after a hearing and appeal process, the final decision of the hospital was to restore Dr. Poliner’s privileges with conditions but uphold as appropriate the suspension as it had been imposed.
Dr. Poliner sued the hospital and numerous participants in the peer review process. In September 2003, the district court ruled that the request that Dr. Poliner not exercise privileges was a peer review action that could not qualify for HCQIA immunity (but ruled that the later suspension and privilege conditions were peer review actions that did qualify for HCQIA immunity). The jury found in favor of Dr. Poliner based on an improper “forced abeyance” of his privileges and awarded Dr. Poliner $366,211,159.30.
The district court later reduced the award to around $33 Million. Two individual defendants settled, but the hospital and the department chair who had led the investigation appealed. In the decision released on July 23rd, the Court of Appeals held that the “forced abeyance” was a peer review action that did in fact qualify for HCQIA immunity. The Court of Appeals ruled that this peer review action satisfied all four of the HCQIA requirements – that the professional review action was taken: (1) in the reasonable belief that the action was 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 as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known. 42 U.S.C. §11112(a). Interestingly, the Court of Appeals stated:
This case demonstrates 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 hearing process is allowed to play out unencumbered by the fears and urgency that would necessarily obtain if the physician were midstream returned to full privileges during the few days necessary for a fully informed and considered decision resting on all the facts and a process in which the physician has had an opportunity to confront the facts and give his explanations. The interplay of these provisions may work hardships on individual physicians, but the provisions reflect Congress’ balancing of the significant interests of the physician and “the public health ramifications of allowing incompetent physicians to practice while the slow wheels of justice grind.”
Accordingly, the remaining defendants are immune from all monetary damages arising from the "forced abeyance" and will not be liable for any payment to Dr. Poliner. The case provides a reasoned analysis of HCQIA immunity and the purpose behind it. Poliner is also the second recent example, in addition to the Kadlec case discussed here, of appellate courts reversing more radical decisions from lower courts. Hospitals should keep abreast of noteworthy litigation of course, but should be cautious in giving too much weight to decisions from lower courts in other jurisdictions.