Happy 2017!

Happy New Year!

Wishing you good times, good cheer, and a memorable 2017!

 

All of us at the Bennett Law Firm
want to thank you for your business, loyalty, and
support in 2016. Let’s make 2017 a great year together!

Get an Insider’s View of

The Texas Disciplinary Rules and Process

CLEonline.com is pleased to present a special online CLE program that describes the grievance disciplinary case involving Houston attorney Robert S. “Bob” Bennett, who was unjustly disbarred for the violation of Texas Disciplinary Rules of Professional Conduct 3.02 and 1.15(d). He appealed. Two years later, through his hard work and perseverance, Bennett’s reinstatement followed after a panel of the Fourteenth Court of Appeals reversed and remanded the decision. Bob is the only attorney in the history of the Texas Bar who has taken on the 100,000 member organization and won a reversal of disbarment.

Virtually all facets of the disciplinary process came into play from the time the grievance was filed until its conclusion, causing Bennett’s disbarment and reinstatement to comprise a case study of the Texas Disciplinary Rules and the grievance process, useful for any attorney who may be the subject of a grievance or avoidance thereof. This CLE is authored by Ethics Expert Lillian Hardwick. You can register for this seminar by clicking this CLE Seminar link.

If you need a CLE program regarding this topic, please let us know by contacting our office at (713) 225-6000 or by email at bob@bennettlawfirm.com.
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Reminder!

The Highland Lakes Bar Association CLE Event
Robert S. Bennett will be speaking at the Highland Lakes Bar Association’s CLE
event on Friday, January 27, 2017 in the meeting room in the back part of the restaurant. Lunch can be ordered from the menu.

Topic: “What You Need to Understand About the Office of the Chief Disciplinary Counsel to Protect Your Fees.”

When: Friday, January 27, 2017 at 12:15 pm to 2:15 pm.

Where: Francesco’s Italian Restaurant at 701 U.S. 281 North in Marble Falls, Texas 78654. It is in a small strip center on the east side of 281 south of the intersection of 281 and Highway 1431.

CLE: Course Starts at 12:15 p.m. 2 hour CLE Ethics.

Mr. Bennett, former Assistant United States Attorney, and former President of the University of Houston Law Center Alumni Association, will discuss what you should know and what you can do when your client starts complaining about your fee arrangement. Also covered will be how recent decisions have provided some guidance on when the Office of Chief Disciplinary Counsel believes a disciplinary rule has been violated, whether mediation should be used or not and lessons learned from his personal experience. Mr. Bennett will also will discuss fee agreements, recent grievance decisions, and possible reforms in the upcoming Texas Legislative Session.

Along with Mr. Bennett, Ethics Expert and Co-Presenter Lillian Hardwick will be speaking on her topic: “Pending Changes to the Attorney Disciplinary Rules & System.”

Her presentation will cover how the Legislature has conducted its Sunset Review of the State Bar of Texas and recommended changes to the way the attorney disciplinary rules are generated. Also covered will be the suggestions made in response to complaints from the public and grieved lawyers alike about ambiguities in how grievances are processed and how sanctions are assessed.

Paid 2017 member attendees will receive two (2) hours of free CLE credit reported direct to the State Bar. If you wish to be a member of the Highland Lakes Bar Association for 2017 dues are $50. You may bring a check payable to “HLBA” to the January meeting or mail it to:

The Highland Lakes Bar Association
P.O. Box 1044
Burnet, TX 78611

We hope to see you at the meeting!

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How to Handle a PDL from the Texas Board of Law Examiners
The Texas Board of Law Examiners (BLE) sends out a Preliminary Determination Letter (PDL) which may raise issues about your good moral character and/or fitness.

Does this mean you cannot become a lawyer?

Not necessarily. What it means is the BLE has some concerns that need to be addressed before you can become a licensed attorney.

Having gone through undergraduate school, having attended law school, having even passed the BAR, you will not become an attorney unless you get permission from the Texas State Board of Law Examiners. This means that you need to make an important business decision of whether you’re going to hire an attorney, whether you’re going to do this on your own, or whether you call Bennett Licensing Services and let us help you make the decision. We, of course, recommend hiring an attorney. Our firm has an unsurpassed success record with the Board. Bob Bennett and Bennett Licensing has 175 reviews on Avvo.com; more than any other attorney in Texas.

For more information, please watch on how to handle a PDL:

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Better Early than Late
by Tommy E. Swate M.D, J.D, SM.Hg

It is always an honor and privilege to be asked to represent a healthcare professional when he/she is being attacked by a licensing board at any stage of the proceeding. But so many times, I wish that our firm had been contacted at the earliest stage of the attack. This wish usually comes to mind at 2 a.m. in the morning when our firm is attempting to complete a motion or pleading due the next day. Many times physicians ask our help after a case has proceeded to an advanced stage. We are available to help at any stage of a proceeding, but would prefer earlier than later.

Just recently we were asked to prepare an appeal of a license revocation for a doctor just 48 hours prior to deadline for filing an appeal. At certain stages of a formal proceeding brought by the Texas Medical Board or any licensing Board there are deadlines to file certain motions and pleadings.
These deadlines are rigidly enforced against the healthcare professional. If you miss a deadline you lose, no matter how meritorious your case. If every issue is not included in the pleadings or motions you lose on the issues that are not plead. You may not get an opportunity to amend your pleadings in certain situations.

An example of this deadline situation is the requirement to file a Request for Rehearing after the Texas Medical Board has formally revoked a medical license. You might think that if you don’t file a Request for Rehearing you can just go directly to an appeal. This is not the case. The Request for Rehearing not only must be filed, but all issues you wish to appeal must be included in the Request for Rehearing.
In a recent case, the physician had defended himself before the State Office of Administrative Appeals. The physician had done an incredible job of defense, but the Administrative Judge found for the Texas Medical Board as you might expect. From talking with the physician, I found that the Board’s attorney had taken advantage of the physician’s lack of legal training every step of the way.

Just 48 hours prior to the deadline for filing a Request for Rehearing, the physician employed our firm. Of course he did not know about the various booby-trap deadlines. I certainly wished that he employed our firm early; so that I would not have been required to work “early”. If he had waited two more days his license revocation would have been permanent with a loss of his right to appeal the Texas Medical Board’s unjust actions.

Fortunately, we were able to file the Request for Rehearing and preserve his right to appeal the Texas Medical Board’s license revocation. The whole administrative scheme for revocations of a health care license is replete with booby traps for the unwary. These traps are designed to benefit the bureaucracy in its effort to further the government employee’s agenda.

I urge every healthcare professional that is threatened by a licensing board to contract legal representation as early as possible. Not only will you have a better chance of defeating the government bureaucracy, but it makes better emotional and financial sense for you to do so. Many professionals assume that when they receive correspondence from the Board that regulate their health care license that the “Board” is making the allegation after some consideration. This assumption is far from the truth; government employees are making the decisions. In most cases, the employees are not licensed in the practice area.

In this time of stress, you need clear heads guiding you to a successful outcome. If you need legal representation against a licensing board, don’t wait! Contact Attorney Tommy E. Swate for a free consultation by phone at 713-225-6000 or by email (swatemd@aol.com).

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Protecting Licenses Since 1974

Office Locations:
North Houston: 525 North Sam Houston Pkwy East, #570
Downtown: 401 Louisiana St #504
Austin and College Station by Appointment
Nationwide

Contact Information:
Office: 713.225.6000 Bob’s Cell Phone: 832.506.4592
Email: bob@bennettlawfirm.com
Website: bennettlawfirm.com

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Bob Bennett relies on his nearly 40 years of experience in his practice in defending professionals against allegations of professional misconduct. Moreover, he draws on the skill and dedication of other experts where appropriate.

Don’t let stress tie you down in 2017.  Bob Bennett understands the anxiety and insecurity that can accompany allegations of professional misconduct. Take action in 2017, and let us help you.

We have helped hundreds of professionals across numerous professions in a variety of licensure issues. We offer free initial consultations, flexible hours and a convenient office location in the historic district of Downtown Houston with ready access to parking and public transportation. Contact our office at 713-225-6000 or contact Bob Bennett at 832-506-4592 or by email: bob@bennettlawfirm.com to schedule an appointment to discuss your licensure issue with a compassionate and trustworthy expert.

Bob Bennett Licensing Services for Professionals, 525 N. Sam Houston Parkway East, Suite 570, Houston, TX 77060

Bennett and Katz – ADA Obligations to Deaf Patients

 By Sherri R. Katz and Robert S. Bennett 

Katz-bob-bennett-houston-attorneyWhat are the responsibilities of a health care provider regarding providing a sign language interpreter for a deaf patient, and can a doctor refuse to treat this deaf patient without being subjected to an allegation of discrimination?

The short answer is that health care providers should carefully consider an established and/or a new patient’s request for a sign language interpreter to ensure effective communication with the patient in compliance with the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

Hypothetical Facts

 ADA-bennett-houston-bobA doctor’s office is contacted by a new patient to schedule an appointment with the doctor.  Patient is deaf, and is in contact with a communication access group that supports the efforts of hearing impaired individuals.  Patient, via the access group representative, informs the doctor that he has an obligation to provide a sign language interpreter for patient.  This information is also provided in writing, with various documents attached, such as materials from the National Association of the Deaf.

These materials include a public two-page letter to U.S. Rep. Howard L. Berman dated 8/28/1992 from Acting Assistant Attorney General; a two-page public letter to a doctor dated 6/29/1992 from Deputy Director of the ADA Civil Rights Division; and a two page American Medical Association memo prepared by the AMA Office of the General Counsel.

The patient requests that the doctor provide a qualified interpreter to ensure effective communication, due to the possible complexity of the communication involved.

Discussion

Compliance with americans with disabilities act and the Rehabilitation act

 

Healthcare providers are prohibited from discriminating against deaf individuals by both the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973.  The Rehabilitation Act has long prohibited programs receiving federal funds from discriminating against individuals on the basis of disability.

Section 504 of the Rehabilitation Act guarantees that person with disabilities will receive “meaningful access” to programs and activities receiving federal financial assistance.  Several courts, including the 5th Circuit, have held that the receipt of Medicare and Medicaid funds constitutes “federal financial assistance” and thus subjects health care providers to the mandates of section 504.[1]

Title III of the Americans with Disabilities Act (ADA) followed the reasoning of the Rehabilitation Act and extends protection to disabled individuals in the private sector by prohibiting discrimination against individuals with disabilities by places of public accommodation.  Private health care providers are considered places of public accommodation.  Title III of the ADA applies to all private health care providers, regardless of the size of the office or the number of employees.  It applies to providers of both physical and mental health care, and includes offices of private physicians and dentists.

The protections of disabled persons under Title III of the ADA are not as broad as those provided by section 504, since section 504 encompasses any program or activity that receives federal funds.  However, the rights and responsibilities established by the ADA and the Rehabilitation Act are nearly identical and the two statutes are, for the most part, distinguished by the fact that section 504 applies only to entities receiving public funding.  A claim brought under the Rehabilitation Act is interpreted in the same manner as a claim brought under the ADA

Under Title III of the ADA, health care providers have a duty to provide effective communication, using auxiliary aids and services that ensure that communication with people who have a hearing loss is as effective as communication with others.  This duty is to ensure that that an individual with a disability, such as hearing loss, is not excluded, denied services, segregated, or otherwise treated differently than other individuals.  The duty to provide effective communication applies to customers, clients, and other individuals with hearing loss who are seeking or receiving services from the health care provider.

According to Title III, appropriate auxiliary aids and services can include equipment or services a person needs to understand aural communication.  This includes qualified interpreters, assistive listening devices, notetakers, written materials, television decoders and telecommunications devices for the deaf (sometimes called TTY’s or TTD’s).

However, Title III of the ADA does not require the use of any auxiliary aid or service that would result in an undue burden on the health care provider, or in a fundamental alteration in the nature of the goods or services provided by a health care provider.  However, the health care provider still has the duty to furnish an alternative auxiliary aid or service that would not result in a fundamental alteration or undue burden.

An individual doctor’s liability under both Title III of the ADA and section 504 of the Rehabilitation Act depends upon the degree of control he exercises over the practices and policies that led to the alleged discrimination of a disabled individual.  It is clear that doctors practicing in their own offices are subject to both Title III and section 504 because they exercise ownership and operation of their own offices’ policies and practices.[2]

There is, however, limited relief for patients claiming a denial of auxiliary aids under Title III of the ADA.  Because a private plaintiff suing under Title III can obtain only injunctive relief, and not compensatory relief, the plaintiff has to satisfy standing requirements, which has evolved into the theory used by a number of courts which have dismissed plaintiff’s claims on lack of standing because of inability to show that the injury complained of would likely occur again in the future.[3]

By contrast, a plaintiff suing under Section 504 of the Rehabilitation Act can recover compensatory damages.  But section 504 does not provide a federal medical malpractice tort remedy.[4]  And, there have evolved provisions whereby the auxiliary aids provisions of Title III of the ADA have proven particularly well suited to public enforcement actions brought by the Department of Justice or the United States Attorney’s Office for that particular jurisdiction.

 

Practical Considerations

 

Although “effective communication” is mandated by section 504 and Title III of the ADA, the term is not defined specifically by the regulations of either statute.  Likewise, case law has not provided a precise meaning of the term either.  By looking at general dictionary definitions, “effective communication” appears to encompass the idea that knowledge is shared in a manner that is capable of bringing about a desired result.  This would refer to the communication between the patient and the medical staff which successfully conveys knowledge, thoughts, and opinions successfully between doctor and patient.

Although healthcare providers have a duty to ensure effective communication with deaf patients, they do have some choice as to the aids and services they will provide. The auxiliary aid requirement is flexible, and the health care provider can choose among various alternatives as long as the result is effective communication for the deaf patient.  The effectiveness of an auxiliary aid or service is measured by a flexible standard that takes into account the nature of the communication and the length and complexity of the communication involved.

There is some argument that a health care provider, as a recipient of federal funding under section 504, is required to give primary consideration to a deaf patient’s request for an interpreter.  In a policy letter released by the Office of Civil Rights, which is still in effect today, it was stated that health care providers should give a level of deference to a patient’s choice of auxiliary aid or service because, in most circumstances, the deaf person is in the best position to judge which means of communication will give him or her equal opportunity in health service.  This deference means that the patient’s judgment in choosing effective communication must be considered of utmost importance.

In addition, the Department of Justice expects that the health care provider will consult with the deaf patient and “consider carefully” his or her self-assessed communication needs before acquiring a particular aid or service.[5]

Sometimes, a healthcare provider might be tempted to use family members or friends of the deaf patient to interpret, in an attempt to comply with the effective communication requirement.  If a health care provider is considering this alternative, they should proceed with caution.  The use of family members as interpreters has been recognized as failing to meet the proper standards for confidentiality and privacy for the deaf patient.  In addition, a family member or friend will likely lack specialized training in signing medical terminology.

Moreover, regulations to the ADA expressly recognize that family members and friends are generally not consider “qualified” interpreters, by stating that the family member or friend may not be qualified because of personal involvement, or considerations of confidentiality that may adversely affect the ability to interpret effectively, accurately, and impartially.[6]

Although it may be the situation that the cost of providing an auxiliary aid or service, such as a sign language interpreter, may exceed the charge to the patient for that very same service, it is widely believed that the health care provider is expected to treat the costs of providing the auxiliary aid as part of the annual overhead costs of operating a business.  It must also be remembered that the health care provider cannot charge a patient for the costs of providing auxiliary aids, either directly or through the patient’s insurance carrier.[7]

If the health care provider does provide a sign language interpreter or other auxiliary aid or service, the business may claim a tax credit of up to 50 percent of eligible access expenditures that are over $250 but less than $10,250.  Eligible access expenditures include the costs of interpreters or TTY’s, or providing other auxiliary aids and services.[8]

Conclusion

There is a need for accurate, immediate, and effective communication in medical settings.  By using a sign language interpreter, a health care provider would avoid any problems in the failure of a deaf patient (or family member) to communicate vital information to his health care staff, such as the patient’s health history and current symptoms.  Further, without the aid of a sign language interpreter, a health care provider might not be able to explain medical procedures and options, including obtaining informed consent from a deaf patient to perform an indicated and necessary medical procedure.

Any lack of effective communication between a deaf patient and a health care provider could possibly lead to misdiagnoses and/or problems in treatment.  This, in turn, could potentially lead to a standard malpractice claim against the health care provider, in addition to potential claims under Title III of the ADA or section 504 of the Rehabilitation Act.

It is usually the conclusion that the nature of the possible repercussions of failing to provide a sign language interpreter, measured against the relative expense of retaining such an auxiliary aid for the deaf patient might lean toward providing the sign language interpreter that the patient has requested.

Communication with the patient might result in an agreement to utilize a different auxiliary aid or service rather than a sign language interpreter to meet the ADA’s requirement of effective communication, but caution might suggest giving deference to a patient’s analysis of her situation and her request for a sign language interpreter.

The cost of this auxiliary aid must be absorbed as office overhead, and cannot be billed directly to the patient or her insurance carrier.  However, consultation with the health care provider’s tax advisor is recommended to discuss the options available to claim the cost of auxiliary aid or services as a tax credit.

Bennett and Katz practice in Houston, Texas.

 

 


[1] See Frazier v. Board of Trustees of NW Miss. Regional Med. Center, 765 F.2d 1278 (5th Cir. 1985).

[2] See Mayberry v. Von Valtier, 843 F. Supp 1160 (E.D. Mich. 1994)(court applied both Title III and section 504 to an individual doctor who allegedly failed to provide a sign language interpreter to a profoundly deaf patient during office visits).

[3] See Aikens v. St. Helena Hospital, 843 F. Supp. 1329 (N.D. Cal. 1994)(dismissing ADA claims for lack of standing).

[4] See Grazn v. Charter Hosp. of NW Indiana, 104 F.3d 116 (7th Cir. 1997).

[5] See 56 Fed. Reg. at 35566-67.

[6] 28 Code of Federal Regulation, section 36.104 app. B (1995).

[7] 28 Code of Federal Regulation, section 36.301 (c).

[8] You should consult your tax adviser for the most current federal tax regulations regarding claiming a tax credit for auxiliary aids and services.

bennett-houston-texas-medical-board

TMB – Physician Options for Early Termination of an Agreed Board Order

By Bob Bennett, Ashley Tse and Sherri R. Katz

bennett-houston-texas-medical-boardThe Bennett Law Firm tirelessly advocates on behalf of health care providers before the Texas Medical Board (TMB) as well as all other licensing boards for other health care providers. After representing numerous physicians, physician assistants, dentists, and nurses, the most frequent question is how to petition for termination of an Agreed Board Order. This article explains the steps needed to petition the TMB for an early termination and assesses the chances of success. While many doctors worry about walking the fine line between petitioning for an early termination and upsetting the TMB, this article encourages doctors to utilize the TMB’s own Board Rules and procedures in petitioning for early termination of an Agreed Board Order.

 

The Texas Medical Board is the state agency charged with keeping Texas patients safe through the licensure and regulation of Texas physicians. The TMB staff also serves as staff for the Texas State Board of Acupuncture Examiners and the Texas Physician Assistant Board.

This “Agency” section of the website is meant to help you find relevant information about the three boards the agency supports including board meeting dates and agendas, key legislation impacting the agency, mandated reporting to the legislature and governor, employment opportunities with the agency, contact information, and mandated state agency policies.

Agreed Board Orders are commonly entered after an Informal Settlement Conference before a panel of TMB members. (i) Recently, the TMB has been cracking down on physicians by imposing an increasing number of disciplinary decisions. In 2006, the TMB administered over three (3) times more disciplinary decisions than in 1999. (ii) Conversely, the number of granted terminations of Agreed Board Orders declined by roughly 30% from 1999-2006.(iii)

bennett-houston-bob-attorney-lawyer

(iv)

¹While not always exactly the same, petitions for termination of agreed orders from other healthcare licensing boards are typically analogous to the rules and procedures established by the TMB.

bennett-houston-bob-lawyer
(v)

Factual Background of Dr. Doc²: Sample Case     The representation of physician Dr. Doc, who unsuccessfully petitioned to the TMB for an early termination of an Agreed Board Order, serves as a good fact scenario for this article.  Dr. Doc is a 70 year old physician with over 36 years experience. He is licensed in two states and is Board Certified in Orthopedic Surgery. He has two bad knees and is physically unable to stand long enough to perform surgery. Dr. Doc has been subjected to two Agreed Board Orders in the past five years.

For six months, Dr. Doc treated his secretary’s sibling with pain killers to help reduce chronic pain due to an injury involving a hot welding iron. Dr. Doc examined this patient twice during the six month period, after which time Dr. Doc felt the patient was a borderline abuser of medication. Subsequently, the patient was referred to a different physician closer to the patient’s residence which was over 175 miles away from Dr. Doc’s office.

In 2002, Dr. Doc with counsel, entered into an Agreed Board Order for three years. The TMB enforced the Agreed Board Order for prescribing or administering a drug or treatment that is non therapeutic in nature or not therapeutic in the manner the drug or treatment is administered or prescribed. Dr. Doc was ordered to maintain a logbook of all prescriptions written for controlled substances or drugs with a potentially addictive potential. He was also ordered to obtain extra CME hours, have his practice monitored by another physician, and pay a fine. Dr. Doc complied with the Order and in three years, the order terminated.

Less than six months later, Dr. Doc entered into an indefinite Agreed Board Order where he would cease performing any procedures that require the use of implants without first obtaining permission from the board.  Dr. Doc voluntarily resigned all surgical privileges.

The second Agreed Board Order stemmed from the TMB deciding Dr. Doc failed to meet the standard of care in his performance of orthopedic surgery on two patients. With the first patient, a 60 year old male, the board held the standard of care was violated by the physician’s choice of an internal fixation device of a plain 14-hole plate placed on the anterior surface of the femur of a comminuted fracture that extended into the condylar area. Furthermore, when the repair failed, the Respondent did not immobilize the patient. The second patient, a 62 year old female, the board held the standard of care was violated when a component that did not match the bone preparation was used and cemented in place. The board found that the component does not easily fit on the bone and brute force would have been necessary to impact this component into a bone that had not been cut for it.

Dr. Doc resigned his hospital privileges and agreed not to perform surgery of any type.  He got a job with a non-profit organization and after a year of full compliance, Dr. Doc petitioned for early termination of the second Agreed Board Order. The TMB granted a hearing on the petition, which allowed Dr. Doc to argue his case for termination before a panel of only two board members. At the conclusion of the Informal Show Compliance hearing (ISC), the two-member TMB panel denied Dr. Doc’s petition for termination of the Agreed Board Order. No definitive reason was given by the TMB for denial of Dr. Doc’s petition.

In all fairness, one may ask, if Dr. Doc is physically unable to perform surgeries, why he desired to seek to terminate his Agreed Order early? Dr. Doc wishes to accept a position with an insurance company, which involves sitting behind a desk examining workers compensation claims. In order to perform this job, at a salary many physicians would never consider, the insurance company requires that Dr. Doc be in good standing with the American Board of Orthopedic Surgery. However, while under the current Board Order he may lose his certification.

Therefore, the Agreed Board Order restriction has created an insurmountable hurdle which prevents Dr. Doc from the surgical table and from seeking some employment. If the Agreed Board Order intends to protect the general public, why is the TMB wasting valuable time and resources to impose a Board Order that prevents him from performing a job other physicians would not consider? Only the members sitting on the TMB know for sure.

Suggestions for Seeking Termination of an Agreed Board Order

Step 1: Filing a petition:     Rule 187.43 of the TMB governs how a physician may petition for an early termination of any type of Board Order.(vi)  A physician seeking an early termination may only petition to do so once a year unless their Agreed Board Order states otherwise. Assuming that the Agreed Board Order does not contain a special provision on early termination and the physician is in full compliance, the first step is to write a petition to the TMB.

The petition should be similar to the formal response a physician or his attorney filed when the TMB initiated the evidentiary proceedings. A successfully argued petition grants the physician an ISC termination hearing before the Board. The standard to successfully petition for an ISC termination hearing is drastically lower than the standard used to actually have the Agreed Order terminated. Many times, the only thing required in order to be granted a hearing is proof that the physician was in full compliance with the Agreed Board Order.  In the Dr. Doc example, this firm successfully argued that he was in compliance with all conditions of an indefinite Agreed Board Order and the Hearing was set.

Step 2:  ISC hearing     The ISC termination hearing is similar to the Informal show compliance proceeding and settlement conference which typically results in the Agreed Board Order in the first place.  In an ISC termination hearing, usually a three-member board panel is present, along with the TMB staff attorney, the petitioning doctor, and the doctor’s counsel, if counsel has been retained. The procedure followed is for the TMB Staff Attorney to state if they are opposed to the termination. If no opposition, the physician presents evidence on why the termination should be granted. At the conclusion of the ISC termination hearing, the TMB panel elects to either grant the petitioning doctor’s request for termination of the Agreed order, makes some type of modification to the Agree Order, or decides to deny the petitioning doctor’s request for termination thereby making no change to the Agreed Board Order.(vii)

There is nothing informal about the ISC termination hearing, and an action by the TMB carries as much weight, if not more, than some criminal proceedings. When terminating an Agreed Board Order, the support of counsel is a key factor in obtaining the best result possible from an ISC termination hearing because it shows the TMB that as a physician you are serious about the situation at hand and allows the development of evidence and argument that require legal training.

In accordance with the APA §2001.081, “the determination of the disciplinary panel may be based not only on evidence admissible under the Texas Rules of Evidence, but may be based on information of a type on which a reasonably prudent person commonly relies in the conduct of the person’s affairs.”(viii) Furthermore, TMB Rule 187.43 (a) explains that “the decision to…terminate a board Order shall be a matter for the exercise of sound discretion by the board.”(ix) This establishes that the burden of proof is up to the TMB panel’s discretion. It also shows that counsel may be very creative in what evidence is presented. There is no objective burden of proof standard that the physician must show to successfully argue a termination.   TMB Rule 187.43 (a) creates difficulty in arguing for termination because what may have enabled one physician to successfully argue for termination of an Agreed Order might not work for another physician with a similar case.(x)

TMB Rule 187.43 (d) lists circumstances that weigh greatly in favor of the petitioning physician when the board considers whether or not to terminate an order.  These factors include:

  1. whether there has been a significant change in circumstances which indicates that it is in the best interest of the public and the licensee to modify or terminate the order;
  2. whether there has been an unanticipated, unique or undue hardship on the licensee as a result of the board Order which goes beyond the natural adverse ramifications of the disciplinary action (i.e. impossibility of requirement, geographical problems). Economic hardships such as the denial of insurance coverage or an adverse action taken by a medical specialty board are not considered unanticipated, unique or undue hardships;
  3. whether the licensee has engaged in special activities which are particularly commendable or so meritorious as to make modification or termination appropriate; and
  4. whether the licensee has fulfilled the requirements of the licensee’s Order in a timely manner and cooperated with the board and board staff during the period of probation or restriction.(xi)

In addition to the factors listed in TMB Rule 187. 43 (d), there are also supplemental arguments that are often presented to the board at the ISC hearing. Historically, the factors most often argued in a successful ISC termination hearing are:

  • It would save the TMB and the state of Texas a great deal of time and resources to terminate to Agreed Board Order early.(xii)
  • The petitioner has already served a majority of the Board Order while under full compliance.(xiii)
  • Petitioner went above-and-beyond by obtaining more CME hours than required by the Board Order.(xiv)
  • Petitioner shows appreciation and respect to the TMB for helping him/her become a better doctor.(xv)
  • Other physicians and health care providers support the termination of the Order.

At the ISC termination hearing for Dr. Doc, this firm presented evidence of the amount of time and resources that the TMB would save by releasing liability. Additionally, evidence was shown of Dr. Doc’s unique circumstances with the insurance company, his voluntary relinquishment of surgical hospital privileges, his disability which prevented him from even being able to perform surgeries, his full compliance the entire time while under the indefinite Agreed Board Order, and the appreciation of the TMB helping him become a better physician. The Board’s attorney presented no evidence.

Even with, the TMB’s Enforcement Director not opposing the termination of the Agreed Board Order for Dr. Doc, but the petition for termination of the Agreed Order was denied. Although no justification was given for the denial of Dr. Doc’s petition, research implies it may have been for two reasons:  First, Dr. Doc had only served one year of an indefinite order.(xvi)   Second, the two member TMB panel may have mistakenly concluded that Dr. Doc might return to surgery, even with his physical disabilities, thus posing a threat to the welfare of the public.  The history of Orders may have also been considered.

This decision is unfair since the TMB panel is not supposed to take past Agreed Board Orders into consideration.  According to TMB Rule 179.7, past complaints are only examined during a new investigation when there is a pattern of practice or behavior.(xvii) Though not the TMB panel’s fault, one could argue it is impossible for the human mind to not let a past Agreed Board Order have some bearing on the current issue set in front of them.

If experienced judges have problems with appearing completely unbiased in a trial, a TMB panel member with no legal training does not have the psyche to examine each physician from an unbiased standpoint. Rationality allows one to assume that past infractions with the TMB have a lingering effect.

If Termination of the Agreed Board Order Is denied     If termination is denied at the ISC termination hearing there are two paths a physician can take to reverse the decision. The first and most often traveled path is to comply with the stated terms of the Agreed Board Order and petition for another ISC termination hearing in another year. The second less traveled path is to file another petition under TMB Rule 187.43 (g), which establishes that a petition may filed more than once a year if the request is valid and meets the requirement of §187.43 (d) (2).(xviii)

A successful petition for termination under TMB Rule 187.43 (d) (2) is very rare. There are no set circumstances as to what qualifies as an “unanticipated, unique, or undue hardship on the licensee.”(xix) Most successful arguments used under this rule relate to inability to pay the Order’s fine in full or public ridicule by the media.(xx) Many times when petitioning for an ISC termination hearing, a modification of the Agreed Board Order is granted, but termination is denied.

In the case of Dr. Doc, this firm is considering to petition for a new ISC termination hearing pursuant to TMB Rule 187.43 (g) by arguing the application of the Americans with Disabilities Act, presenting evidence and argument that Dr. Doc’s physical inability to perform surgeries qualifies as an unanticipated and unique hardship. Additionally, the Agreed Board Order creates an undue hardship on Dr. Doc.

Is the TMBSE being unfair?     As of 2006, research shows that there are 619 physicians under board Order compared to 231 physicians only eight years ago.(xxi) In 2006, one physician’s case out of thirty-five (35) complaints filed resulted in an Agreed Board Order.  This is contrasted to 1999 when only one physician’s case out of 173 complaints filed resulted in an Agreed Board Order.(xxii) Surely the upsurge in disciplinary actions has nothing to do with the number of total complaints which have diminished 30.7% since 1999.

With the board cycling different members every few years, there is no consistent adjudication of physicians. Section 151.003 of the Medical Practice Act states that “the practice of medicine is a privilege and not a natural right of individuals, and as a matter of public policy it is necessary to protect the public interest through enactment of the Medical Practice Act to regulate the granting of that privilege and its subsequent use and control.  The TMB should remain the primary means of licensing, regulating, and disciplining physicians.”  The role of the TMB is to regulate the licensing of doctors as well as discipline of doctors for the protection of the public.

According to §152.002 of the Medical Practice Act, the TMB consists of nineteen (19) members appointed by the governor with the advice and consent of the Senate.  Twelve (12) members must be physicians, and the remaining seven (7) members represent the public.  Appointments to the TMB shall be made without regard to race, color, disability, sex, religion, age of national origin. Is it really protecting the public if physicians who are no longer practicing surgery try to keep their certification to work in a job no one else wants?(xxiii)

Chart_1_2

xxiv

 

Chart_3

xxv

A dilemma arises with the TMB panel having sole discretion in executing an Agreed Board Order, as well as sole discretion in grant or denial of a petition for termination. Though not completely arbitrary and capricious with their decisions, there is no definitive pattern of when and how a petitioner may be granted termination by a TMB panel.(xvi)

In criminal proceedings the burden of proof is on the prosecutors to show beyond a reasonable doubt that the defendant committed the crime. In an informal ISC hearing, the burden of proof is on the petitioning doctor to show beyond what the TMB panel feels is enough substantial evidence. This creates uncertainty in the evidentiary process of petitioning for termination of an Agreed Board Order. A physician can never be fully prepared when going against the TMB.

Conclusion     Successfully arguing for termination of an Agreed Board Order is never a sure bet. The quantity of factual evidence that must be asserted to terminate an Agreed Board Order fluctuates with each individual case before the TMB panel. Therefore, a physician who desires to successfully petition and receive termination of an Agreed Order must be totally and fully prepared with competent and persuasive arguments and evidence to present to the TMB panel. Though not impossible, the TMB’s history shows that the more prepared, humble and persuasive a physician appears, the more likely he will achieve the desired result:  successful termination of the Agreed Order.

Robert Bennett offices in Houston, Texas

(i)22 Tex. Admin. Code §187.16 (2006)
(ii)See Texas State Board of Medical Examiners, Compliance Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/comp.php) (335/99= 3.38)
(iii) See Texas State Board of Medical Examiners, Compliance Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/comp.php) (1-31/44= 29.55%)
(iv)Texas State Board of Medical Examiners, Compliance Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/comp.php)
(v)Texas State Board of Medical Examiners, Medical Board Decisions, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/mbd.php)
(vi)22 Tex. Admin. Code §187.43 (2006)
(vii) Id.
(viii)22 Tex. Admin Code §187.59 (2004)
(ix)22 Tex. Admin. Code §187.43 (a) (2006)
(x)Id.
(xi)22 Tex. Admin. Code §187.43 (d) (2006)
(xii)See physician histories for Williams B. Burrows, D.O. (terminating the Order because it would save the state of Texas money and resources);  Erik T. Shaw, D.O. (terminating the Order because it would save the state of Texas time and resources); William A. Bilsing, M.D. (terminating the Order because it would save the state of Texas time and resources); Luis E. Zepeda, M.D. (terminating the Order because it would save the state of Texas time and resources)
(xiii)See physician histories for Dong S. Kim, M.D. (terminating the Order because physician has served 14 months of the three-year Order); Leo L. Altenberg, M.D. (terminating the Order because physician has served two years and one month of Agreed Order); Randal L. Fielder, M.D. (terminating the Order because physician has served one year and three months of his two-year probation); Stephen Edward Guilliams, M.D. (terminating the Order because physician has served three years and eight months of his five-year probation); Maurice J. Ende, M.D. (terminating the Order because physician has served two years and four months of his three-year probation); William H. McCrae, M.D. (terminating the Order because physician has served 18 months under the order); William C. Brown, M.D. (terminating the Order because physician has served two years and seven months of his ten-year probation.); Erik W. Felton, M.D. (terminating the Order because physician has served over three years of his five-year probation); William J. Dickey, M.D. (terminating the Order because physician has severed in excess of 21 months of his two-year probation); Julio Arauz, M.D. (terminating the Order because physician has served nearly 20 months of the three-year Order); Salvador Baylan, M.D. (terminating the Order because physician  has served four years and four months of five-year Order); Castilla A. Darby, Jr., M.D. (terminating the Order because physician has served seven years under the ten year order).; Jacques A. Roy, M.D. (terminating the Order because physician has served four years and three months of the five-year Order); Stewart R. Keller, D.O. (terminating the Order because physician has served four years of his five-year probation)
(xiv)See physician histories for Tommy E. Swate, M.D. (terminating the Order because physician has routinely exceeded the amount of Continuing Medical Education (CME) required by the Order and has completed numerous overseas mission trips during which time he has functioned in a medical role); Jack M. Thomas, Jr., M.D. (terminating the Order because physician has completed in excess of 150 CME hours);
(xv)See physician histories for Richard G. Buch, M.D. (thanking the Board for allowing him to practice medicine while under the Order); Nandlal Patel, M.D. (providing he is grateful to have received guidance from the Board and the, chart monitor)
(xvi)See physician histories for Francisco I. Pena, M.D. (denied because he was only 2 years into an 8 year Order); Williams B. Burrows, D.O (denied because it was too soon to let his license free and clear); James M. Stanton, M.D. ( denied because too soon to let his license be free and clear); George R. Smith, Jr., M.D. (denied because he was only 3 years into a 5 year order); Randy Ramahi, D.O. (indefinite agreed Order date, one year too soon); Contra physician history for Jairo Rafael Olivares M.D. (finding the Order does not have a termination date. A fair reading of the Order suggests that the Order was to terminate after one year)
(xvii)22 Tex. Admin. Code §179.7 (2003)
(xviii)Id.
(xix)d.
(xx)See physician histories for Nat B. Baumer, M.D. (finding he successfully argued the exception rule because of constant and public ridicule by the media)
(xxi)See Texas State Board of Medical Examiners, Investigation Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/inv.php) (showing there were approximately 17,130 complaints resulting in 99 disciplinary decisions. Contrasted to 2006, there were approximately 11,860 complaints resulting in 335 disciplinary decisions)
(xxii)Id.
(xxiii)See Texas State Board of Medical Examiners, Texas Medical Board Biographies, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/boards/mbbios.php) (showing that the “public” members of the medical board do not necessarily have any medical or legal training)
(xxiv)Texas State Board of Medical Examiners, Compliance Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/comp.php)
(xxv)Texas State Board of Medical Examiners, Investigation Statistics, Sept. 4, 2007. (available online athttp://www.tmb.state.tx.us/agency/statistics/enforce/inv.php)
(xxvi)See 22 Tex. Admin Code §187.59 (2004)

bennett-bob-houston-schip

The S-Chip Debate & why Doctors Should Support Senator Kay Bailey Hutchinson

The S-Chip Debate & Why Doctors Should Support Senator Kay Bailey Hutchinson

 By Sherri R. Katz and Robert S. Bennett

bennett-bob-houston-schipThe S-CHIP (State Children’s Health Insurance Program) has been on the front burner in the news for months, and now has suffered a presidential veto. Initially, S-CHIP was created in 1997 as a bipartisan effort to provide insurance coverage for children living in families with too much income to qualify for Medicaid by not enough to afford private insurance. An estimated 91% of children who are insured by S-CHIP come from families with incomes below 200% of the federal poverty level, or $41,300 for a family of four in 2007(1). Before the enactment of S-CHIP, only eleven states covered children in families of 185% of the poverty level or higher. By 2006, forty-two (42) states covered children with family incomes of 200% of the poverty level, including seven states in which the cost of living is particularly high, which set income thresholds for S-CHIP eligibility at 300%.(2)

The original bill’s legal mandate expired September 30, 2007. Reauthorization of S-CHIP was attempted, although the most recent bill was vetoed by President Bush on October 3, 2007. That bill was a product of bipartisan negotiations, which included Charles Grassley, R-Iowa and Sen. Orrin Hatch, R-Utah. The original S-CHIP program covered approximately 6.6 million children nationwide.

kay-bob-bennett-houstonIn the most recent bill, strongly supported by our very own Senator Kay Bailey Hutchinson, R-Texas, Congress voted to appropriate $60 billion for S-CHIP over the next five years, which would allow the current regulations to stay in place and permit an additional four (4) million children nationwide to enroll. The appropriation would be funded by higher taxes on tobacco products by increasing the federal excise tax on cigarettes to $1.00 per pact, from the current $0.39 per pack.

Opposing the bill is U.S. Senator John Cornyn, R-Texas. He supports President Bush’s veto of the bill. Senator Charles E. Grassley, R-Iowa, helped write the bill, and has been quoted as saying “This bill is not socialized medicine.”

After vetoing the S-CHIP reauthorization, President Bush released a letter to Congress through the Office of the Press Secretary. In that letter, President Bush states that he is vetoing the bill “because this legislation would move health care in this country in the wrong direction.” President Bush ends his letter by stating “our goal should be to move children who have no health insurance to private coverage, not to move children who already have private health insurance to government coverage(3).”

President Bush and his allies have declined to support the measure, asserting that the reauthorization of S-CHIP at a substantially higher level of spending would “crowd out” private insurance in favor of public coverage and lead down a path to socialized medicine. However, according to America’s Health Insurance Plans, as reported in the New England Journal of Medicine, more than 70% of children whose coverage is through S-CHIP are part of private plans. President Bush’s 2008 budget proposed the addition of only $4.8 billion over the next five years, an amount that would fall well short of the monies needed to maintain the existing S-CHIP caseloads(4).

Given all the media attention on S-CHIP and children’s healthcare, from a health care provider’s perspective, it appears that the overriding question we should be asking is “how bad is children’s healthcare in the United States?”

A recent New England Journal of Medicine article published October 11, 2007(5), says that the state of children’s healthcare in this country is “far from optimal.” This comment comes as a result of conducting a study of medical records from 1,536 children who were randomly selected from twelve (12) metropolitan areas(6). On average, according to the data in the medical records, children in the study received 46.5% of the indicated care(7).

Because the health care of this country’s children is paramount, and amidst the political battles over ideologies and the S-CHIP program, several groups have come out in support of the bill. In addition, because the House democrats approved a more expansive version of the Senate bill by repealing an impending reduction in Medicare payments to physicians, the American Medical Association (AMA) and the AARP have come out in support of the bill. Other organizations that support the bipartisan S-CHIP expansion include Americans United for Change (AUC), MoveOn.org, Service Employees International Union (which claims over one million hospital workers as members), and the American Cancer Society’s Cancer Action Network. Most doctors would like to see that their patients had the insurance to pay for medical services.

 President Bush vetoed the bipartisan S-CHIP bill on October 3, 2007. Deputy Press secretary Tony Fratto quoted President Bush as saying he is “willing to work with members of both parties from both houses” on the issue. However, it appears that the GOP will have enough votes to sustain the veto of the program on the scheduled Thursday, October 18, 2007 vote. The bill was originally passed 265 to 159 in the House. Supporters of the bill need 290 yes votes to enact the bill over President Bush’s veto, if all 435 House members vote on Thursday.

Democrats and Republican supporters of the bill, including Senator Kay Bailey Hutchison hope to gather enough support to override that presidential veto. House Speaker Nancy Pelosi, D-Calif., has said about the vote to override the veto: “We’ll try very hard to override it. But one thing’s for sure: We won’t rest until those 10 million children have health care.”

Senator Hutchison has said she “of course” will vote to override President Bush’s veto of the children’s insurance program expansion that she has supported. Senator Hutchison was quoted in the Houston Chronicle as saying “I will, of course, vote to override, because I think that from my standpoint, I did the right thing”, adding that the S-CHIP reauthorization included proper limits, protection for Texas’ funding, and a way to reach children who still don’t have healthcare.

Ernest Istook, a former U.S. Congressman from Oklahoma, now a distinguished fellow at the Heritage Foundation, hails President Bush and his allies as heroes, not villains, in the ongoing S-CHIP saga. “They know that bigger SCHIP, like all bigger government, means the next generation will inherit the debt to pay for it.”(8)

But U.S. Senator Edward M. Kennedy, D-Mass., has an entirely different perspective. “This is all a matter of priorities: the cost of Iraq, $333 million a day; the cost of SCHIP, $19 million a day.”

In Texas, even if Congress cannot reach a compromise or if the presidential veto is not overridden, state officials have said that the state is unlikely to face cutbacks in its S-CHIP program. According to a spokeswoman for Texas Health and Human Services Commission, the state has sufficient funding from existing federal grants to continue the program for at least a year.

The struggle over the reauthorization of S-CHIP reflects the recurring national debate of the role that government should play in providing health coverage to all Americans, not just children. According to the New England Journal of Medicine(9), the growth of public healthcare has far outstripped private spending since 1965, because, in the absence of affordable private insurance, the federal government has expanded coverage of populations considered appropriate recipients of public support. This trend will only accelerate with the coming retirement of baby boomers.

But the question still remains: How bad IS children’s healthcare in the United States and what are we going to do about it? Senator Kay Bailey Hutchison and The American Medical Association appear to believe that supporting the reauthorization of S-CHIP is a good place to start. If, as a physician, you support Senator Hutchison’s position for children’s healthcare, please contact Senator John Cornyn at: www.cornyn.senate.gov or 517 Hart Senate Office Building, Washington D.C., 20510; 202-224-2934 and request he support overriding the S-CHIP presidential veto. For additional information about matters of interest to physicians go to www.bennettlawfirm.typepad.com or www.bennettlawfirmmed.com.

 

End Notes

 

1. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.

2. Id.

3.President Bush’s Letter to Congress, from The White House, Office of the Press Secretary, for Immediate Release October 3, 2007.

4. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.

5. The Quality of Ambulatory Care Delivered to Children in the United States by Rita Mangione-Smith, M.D., M.P.H,; Alison H. DeCristofaro, M.P.H.; Claude M. Setodji, Ph.D.; Joan Keesey, B.A.; David J. Klein, M.S.; John L. Adams, Ph.D.; Mark A. Schuster, M.D., Ph.D.; and Elizabeth A. McGlynn; Volume 357:1515-1523, October 11, 2007.

6. The NEJM study covered all children, even those covered by health insurance and those not eligible for SCHIP.

7. This average is from data indicating children received 67.6% of the indicated care for acute medical problems; data indicating children received 53.4% of the indicated care for chronic medical conditions; and from data indicating children received 40.7% for indicated preventive care.

8. “Left Loves S-CHIP”, by Ernest Istook, Nation Review Online (NRO), October 15, 2007.

9. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.

The Poliner Case & Medical Peer Review

The Poliner Case & Medical Peer Review

By Sherri R. Katz & Robert S. Bennett

   Recently, there has been much discussion in the medical community, as well as many articles written in medical newsletters and publications about the Poliner case and medical peer review. This article will attempt to address what the Poliner decision means to a practicing physician in Texas concerning medical peer review.

Background on Poliner case

     In Poliner v. Texas Health Systems, No. 06-11235, 2008 WL 2815533 (5th Cir. July 23, 2008), the Fifth Circuit held that the Presbyterian Hospital of Dallas and three individual physicians for basically immune from money damages based on application of the federal Health Care Quality Improvement Act (HCQIA) immunity.  The Fifth Circuit reversed the $33.5 million damage award to Dr. Poliner, a physician who sued after his privileges were terminated.  The jury had originally awarded $360 million in damages, but this amount was later reduced by the trial court to $33.5 million.

     Dr. Poliner was an interventional cardiologist with a solo practice at the Presbyterian Hospital of Dallas.  While working in Presbyterian’s cardiac catherization lab, Dr. Polilner 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 Dr. Poliner called his abilities into question, and thus began the peer review process of Dr. Poliner at Presbyterian Hospital of Dallas.  In sum, the Chairman of the Internal Medicine Department asked Dr. Poliner to agree to a temporary restriction (abeyance) of his cath lab privileges pending investigation of the case, and explained that if Dr. Poliner did not assent, all of Dr. Poliner’s privileges would be summarily suspended.  Dr. Poliner accepted the abeyance, which imposed a temporary restriction of his privileges in the cath lab for 14 days.  Dr. Poliner, however, later contended in trial that this agreement was involuntary and amounted to a summary suspension for which he did not receive procedural rights.

      In the abeyance letter restricting his privileges, Dr. 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 Dr. 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 Internal Medicine Advisory Committee recommended additional reviews and an extension of the restrictions on Dr. Poliner’s privileges.  Altogether, the restrictions on Dr. Poliner’s cath lab privileges were in place for approximately 29 days.

   On the 29th day, the Advisory Committee met and recommended a suspension of Dr. Poliner’s cath lab and echocardiogram privileges.  Dr. Poliner received a hearing concerning the suspension of his privileges five months later.  Several years later, Dr. Poliner sued the chairman of the Internal Medicine Department, Presbyterian Hospital of Dallas, and other doctors who had been involved in the peer review process.  Dr. Poliner claimed damages from the limited restrictions on his privileges, the extension of those restrictions, and the suspension of privileges.

     The case proceeded to jury trial on the alleged damages incurred from the 29 days of limited restrictions on Dr. Poliner’s privileges.  The jury found the hospital and the three defendant physicians were not entitled to immunity under HCQIA and Texas law, and the jury ultimately awarded Dr. Poliner $366 million in damages for defamation, mental anguish and punitive damages, which the trial court reduced to $33.5 million.  On appeal, the Fifth Circuit reversed the district court, holding that the defendants were immune under HCQIA.

HCQIA At-a-glance

     The Health Care Quality Improvement Act sets forth four requirements to obtain immunity for physicians and institutions participating in a peer review activity, which is called a “professional review action” in the HCQIA.  The HCQIA provides immunity from money damages to participants in the peer review process.  However, for the HCQIA immunity to apply, the 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) above.

HCQIA applied to Dr. Poliner’s Case

     In the Poliner case, the Fifth Circuit made an analysis of each aspect of the Poliner peer review under the four prongs of the HCQIA.  The court did not seem to be persuaded by Dr. Poliner’s arguments that immunity was not warranted because he was not afforded full procedural rights and that the actions were taken because of anti-competitive reasons, not in furtherance of quality of care.

     The Fifth Circuit court ultimately found that the actions by the defendants were taken “in the reasonable belief the action was warranted by the facts known after such reasonable effort to obtain facts.”  The court joined other federal circuit courts in holding that the HCQIA reasonableness requirements are judged by an objective, rather than subjective standard.

Sham Peer Review

     In the opinion of many physicians, the Poliner case is one of the most egregious cases of sham peer review in recent history.   Many doctors hold the opinion that the original peer review process of Dr. Poliner involved the unwarranted summary abeyance  of Dr. Poliner’s privileges, and that Dr. Poliner claimed in his lawsuit that the defendants “improperly and maliciously used the peer review process to summarily suspend his privileges, thereby causing damage to his interventional cardiology practice.”

     Many believe that even though the Fifth Circuit ultimately overturned the jury verdict by granting immunity under the HCQIA, the jury verdict in the Poliner trial exposed and discredited a number of common sham peer review tactics in the trial itself.

Practical Considerations

The Fifth Circuit held that Dr. Poliner failed to rebut the presumption that the peer review action at Presbyterian Hospital complied with the HCQIA, and further held that the evidence “independently established” the actions complied with the statute.  However, the practicing physician in Texas subjected to any type of peer review actions should be educated with the lessons from the Poliner case.  Poliner reaffirms that in conducting what will be reviewed objectively for reasonable peer actions, participants, including the hospital, will continue to be immune from damage awards if sued by a responding physician.  However, HCQIA immunity is not automatic, and requires strict adherence with the terms of the Act.  Any physician facing hospital peer review should be mindful of the position of the courts regarding peer review and immunity, and remember that the HCQIA creates a rebuttable presumption that a peer review action is done for quality of care concerns, in favor of the hospital.

See Editorial:  Sham Peer Review: the Poliner Verdict, by Lawrence R. Huntoon, M.D., Ph.D., Journal of American Physicians and Surgeons, Volume II, Number 2, Summer 2006.

Robert Bennett and Sherri Katz practice law in Houston, Texas