A surgeon who complained about the safety of reprocessing practices at Cedars-Sinai Medical Center and the subsequent restriction of his privileges there is entitled to the multi-million dollar arbitrated settlement the hospital agreed to pay him in 2009 but later attempted to reverse, a California appeals court has ruled. Continue reading ‘Surgeon Wins $4.7M Settlement in Long-Running Dispute With Hospital’
Tag Archive for 'Sham Peer Review'
9 May - The Texas House passed HB 1013 today by a vote of 147-0, endorsing crucial reforms necessary to make the actions of the Texas Medical Board (TMB ) transparent. This action sends a message that the TMB’s unconstitutional actions will no longer be tolerated by the Texas House. Continue reading ‘Texas House Unanimously Passes Medical Board Reform Bill’
4 Jan – In the Superior Court of California, County of Alameda, a peer review drama is unfolding. Petitioner R.V. Rao has taken on Washington Township Health Care District, Respondent, re its judicial review committee. Continue reading ‘Medical Peer Review Used to Silence MD’
TUCSON, Ariz., Dec. 6 – The U.S. Court of Appeals for the Fifth Circuit has ruled against the Texas Medical Board (TMB), allowing landmark litigation by the Association of American Physicians and Surgeon to proceed to prove wrongdoing by the Board. Continue reading ‘U.S. Court of Appeals Rules Against Texas Medical Board’
15 Sep - “Reduce the medical errors”, was the public outcry in the 1970’s and 1980’s. Big malpractice awards were sounding alarm for public and politicians alike. The medical establishment took the stand that there existed a few “bad apples”, who were causing most of the problem.
“Leave it to us”, the establishment said, ”We are going to establish a fine system of ‘peer-review’. We shall review our colleagues with utmost ‘candor’ and throw out the bad apples”. “But”, they argued, ”We can only do our work with honesty and candor, if our decisions can not be challenged in a court of law and the reviews are not open to the public. Otherwise these “bad apples” will sue us.”
With a strong leap of faith in the medical establishment (i.e. hospitals and doctors entrenched in it), all states enacted stringent laws protecting peer reviews from public disclosure and scrutiny. The Congress enacted the Health Care Quality Improvement Act (HCQIA) of 1986, giving doctors and hospitals immunity from damages for their peer-review actions. Sen. Ron Wyden (D- Oregon) authored the 1986 law that created the National Practitioner Data Bank (NPDB), which was established to blacklist the “bad doctors” so that after committing malpractice, they could simply not cross state lines and set up a new practice.
But the medical errors have not gone down! Seventeen years have passed since then! Institute of Medicine (IOM) reported in November 1999 that 98,000 patients die each year because of medical errors. St. Paul Insurance Company reports that the rate of malpractice claims has remained steady over between 1990 and 1999. In case you did not notice, we are in the middle of malpractice crisis once again, right now. St. Paul Insurance Company has completely closed its medical malpractice insurance business. Malpractice rates are soaring. Where did things go wrong? Does this peer-review driven system of catching errors, educating and disciplining doctors and throwing out the “bad apples” really work as promised by the establishment? Or is it merely a smoke screen for some doctors to maintain lucrative (but short on quality of care) practices at the expense of their more conscientious colleagues who actually practice good medicine?
Let’s see how the system is supposed to work. After any patient is discharged from the hospital, the quality assurance (QA) nurses check the chart to see if aberrations have occurred. If not, the chart is filed away. Otherwise the chart is flagged and goes to the “peer-review” committee of physicians. This committee checks to see if the physician attending the patient met the standard of care. If not, the attending physician is questioned, counseled, disciplined, suspended, terminated depending on the seriousness of medical error. Largely, peer-review is meant to be a learning process so that the medical errors are caught and all doctors are educated in order for patients in future to get better care. But this is also where doctors can play out their personal politics of favoritism, prejudices and turf-wars!
First, who are these doctors that are reviewing their colleagues? Are they somehow tested and proven to be better qualified than those they are reviewing? Do they have the necessary integrity to judge others? Are they dispassionate? Not really, in most cases, they are simply the “favorites” of the administrators. Chances are that they are “stale, pale, male”, who bring in a lot of patients, surgery, and money to the hospital. They and the hospital lie in the same economic bed, sharing strong motive of profiting from keeping control of the medical practice in a given community. They form the “inner sanctum” and closely guard against “outsiders” using whatever means necessary. They oftentimes have a substantial conflict of interest in doing a proper peer review.
Second, are these reviewers honest in reviewing their colleagues? Can they objectively critique their friend who is simply a part of their everyday professional and social life? Who often refers to them? Who they play golf and dine with? On the other hand, can they be fair to one who just came into town and who may be taking some of their patients away? An inadvertent competitor? How about one who has this funny accent about him? Or different shade of skin? Can these doctors rise above their personal and professional ties, prejudices and insecurities to uphold the standards of medical profession, as they assure the public?
Third, why should they expend time and effort on this thankless job? The reviewers can simply gloss over the charts, do a perfunctory review. In fact, the department of ob-gyn, of which I was a member at that time, at Presbyterian Hospital, Charlotte, circulated a memo in April 1995, admitting euphemistically:
Overall, our (peer-review) process has been very relaxed these past few years.
Finally, the fact is that managed care has shrunk the size of the monetary pie to be had, so it is a doc-eat-doc world out there! If I can review you and eliminate you before you even get a chance to review me, I can be way ahead in the game.
Many, if not most hospitals, place “politically correct” physicians on peer review committees, not those who are better doctors. For these reviewers to criticize other politically powerful physicians who are making medical errors would be to commit professional hara-kiri. Of course, the reviewers have to make a showing that they are doing something, because their job is to protect the public.
Given all these factors, it is very easy to see that the reviewers set up a double standard of covering up the real mistakes of their friends and exposing their politically vulnerable, but medically superior, colleagues for non-substantial, flimsy, clinically insignificant, bogus and fabricated reasons.
If they accept you or if you are part of the “inner circle”, meaning politically powerful, they simply look the other way if you make mistakes. Chances are that your charts may never be peer-reviewed because the administration, through the “understanding” quality assurance nurses, can simply let these charts slide by. However, if you are a competitor but/or do not belong to a powerful group, gender or race, full fury of the peer-review system may be unleashed upon you. That is what happened in my case 6 years ago.
MY PERSONAL EXPERIENCE
When I received my M.D. from New Jersey Medical School, Newark in 1985, I decided to take up the happy specialty of delivering babies. In 1989, I finished my ob-gyn residency from Temple University Hospital, Philadelphia. I graduated in the top 20% of my senior class. I moved down to Charlotte and started ob-gyn practice, first with a group then solo. I became board certified in ob-gyn.
On December 1, 1994, I scheduled a laser-laparoscopy on a patient to alleviate pelvic pain. At the time of surgery, I inadvertently punctured an artery in her abdomen. I recognized the injury immediately and performed open surgery with the help of a general and a vascular surgeon. The patient went home after a few days stay in the hospital. Many experts later reviewed my case and found that I met the standard of care.
But the Presbyterian hospital used this incident to target me in the worst possible manner. They initiated a completely secretive peer-review of all my cases. On September 1, 1995, the CEO of Presbyterian Hospital, Charlotte and chief of the ob-gyn department summoned me to the imposing boardroom of the hospital. They told me that the hospital had peer-reviewed my 102 charts and found 24 of them to be ‘problematic”. They would not identify these 24 charts or what the “problems” were with each of them. They told me that I was summarily suspended from the hospital from that very day!
I was the first physician to be suspended from the hospital in 20 years! The reviewers were either my competitors or employees of the hospital or both!
This was truly a stab in the back, because I was never given a chance to defend any of those 24 cases. According to the hospital’s own by-laws, I should have been given written query for each of those charts. If that were done, they would simply not have been able to suspend me, since there was nothing wrong with the charts. They simply wanted to hush up the matter. In fact, the secretary in the medical staff office offered me the “friendly” advice that I should resign. Had I done that, there would have been no legal recourse. My lawyer correctly advised me to choose to be suspended!
I went through the “fair hearing” process in the hospital, which was a laughable exercise in corporate rubber-stamping. There was nothing “fair” about it. The hospital handpicked the members of the “hearing panel”. None of the members of the panel was even an ob-gyn physician. Even though two eminent ob-gyn experts testified in my favor, doctors on the panel voted me down. They were not going to destroy their long-standing relationship with the hospital! Yet, they had enough conscience to write in their opinion:
“The sequence of events as presented leaves the distinct impression that this physician was intimidated. That impression damages the entire community.”
I took the hospital to the state court in Mecklenburg county in January 1996. The court determined that the hospital had violated its by-laws and ordered the hospital to perform a new peer-review of my charts. Meanwhile North Carolina Medical Board reviewed my “24 problematic charts” and found them to be satisfactory. Sadly, the Board decided to stay on the sidelines while the hospital continued to decimate my career and drag me though the vagaries of the judicial system.
The hospital initiated a new review of my charts using two external reviewers but they knew that I would be vindicated. Therefore, they simultaneously appealed to the Court of Appeals in Raleigh, North Carolina against having to do the review. They also went to the State Supreme Court asking for a stay of the ongoing review in February 1997. Beyond all reason and logic, the Supreme Court stayed my almost finished external review. The Court of Appeals ordered in August 1997 that the hospital should indeed give me a new review in accordance with its by-laws.
American Medical Association and North Carolina Medical Society, in fact all medical people and entities in this country support an “external” review of a physician. The by-laws of the hospital allow for an external review of a physician. But the hospital chose to abandon the external review that had been going on. For the second time, the hospital selected internal physicians, employed and otherwise controlled by the hospital, to review my cases. The marching orders were intuitively clear for the reviewers; they were to find my charts full of “mistakes”. They did just that and justified the revocation of my privileges.
Dr. E. Albert Reece, chairman and professor at Temple University hospital’s ob-gyn department in Philadelphia, reviewed these cases at my request. He and another board certified ob-gyn physician personally testified at a hearing in the hospital in January 1999 that I met the standard of care in all those charts that the hospital had pointed out as problematic. Still the hospital would not listen!
I was the first ob-gyn physician of Asian-Indian heritage in the city of Charlotte. I felt that discrimination was the real reason for my exclusion from the hospital. I filed a civil rights suit against the hospital in January 1999. In June 2000, the federal judge ordered the hospital to produce to me all the records of ob-gyn physicians to compare with mine. Not wanting to have the jury see how the performance of other ob-gyn physicians stacked up against mine, the hospital appealed this order to the 4th circuit Court of Appeals in Richmond, VA. In August 2001, the Court rendered its forceful and unanimous decision in my favor, holding that the interest in obtaining probative evidence in an action for discrimination outweighs the interest that would be furthered by recognition of a privilege for medical peer review materials. In September, 2001, the Court denied the petition by the hospital for a hearing by the full bench of the court. The hospital decided that they would not appeal to the U.S. Supreme Court. The case is in litigation now and trial is expected in 2005.
I still hold full and unrestricted licenses in North Carolina, New Jersey and Pennsylvania. I have attending privileges at Carolinas Medical Center, Charlotte. But because of my suspension from the hospital and entry of this information in the NPDB, I have been unable to do ob-gyn work for several years. I had to close my practice in May 1997. My skills have doubtlessly gone down. My career and social life have been ruined.
While the hospital has used several million dollars of public money to keep me from serving the public, blatantly violated its own by-laws, the Joint Commission for Accreditation of Healthcare Organizations (JCAHO) has not questioned the hospital to my knowledge. Many doctors, who have committed much bigger “errors”, have continued to practice there without being subjected to absurdly harsh peer review and/or discipline of any kind.
ABUSE OF PEER-REVIEW IS WIDESPREAD
Mine is not an isolated case. In numerous cases, as the article in Medical Economics (Feb 7, 2000) points out, peer-review has been abused by hospitals and their “favorite” doctors to meet their own personal and economic agenda. The victims of peer review are often less well connected. Hospitals and doctors use peer review as a potent weapon to attack competition, achieve racial profiling and simply getting rid of those they do not like. Once a physician gets a bad peer review, there is “domino effect” in that, other hospitals would not give you privileges, HMO’s would not put you on their panels and potential employers will turn you down. The physician’s career is finished. You get branded as a social and professional outcast across the entire United States. Everybody believes that hospital must have done the right thing. Even if they think the hospital made a mistake, it is entirely too much baggage for anybody to deal with. They simply leave you on the sidelines to wither.
On December 2, 2001, reference committee G of American Medical Association held a hearing on the issue of peer-review. I personally testified about my case. Dr. Gil Mielekowsky (a physician from California), who became a victim of peer review, also presented his case in very effective and thoughtful way. Dr. Demsch, Pennsylvania delegate, stated that in his state, abuse of peer review was rampant. AMA is to study the issue of bad-faith peer reviews and bring out a report in June 2002.
However arbitrary and capricious the peer review, you can not question the process or the reviewers in the state courts. In most states, peer review enjoys near-absolute privilege and immunity; therefore not much redress is available. The courts are loathe to second-guess the hospitals’ “internal” matters. As Dr. Jane Orient, executive director of American Association of Physicians and Surgeons (AAPS), points out, even the most egregious of peer-reviews prevails. There is something wrong here, peer-reviewers can get away with murder, and nobody can question them! They can professionally hang a physician in pubic, but the public is not allowed to see what evidence they have! The public should merely take them on their word! While the government has no difficulty getting their hands on internal documents of Firestone or Enron for public to view, the medical establishment simply hides its skeletons under the guise of “public good”! How long is the public going to swallow that?
Robert Meals, Esq. has compiled a long list of physicians victimized by peer-review. Dr. Verner Waite and Robert Walker, Esq. have termed the process “kangaroo court”. Dr. Waite founded Semmelweis Society International. Dr. Paul Ebert, the President of American College of Surgeons, questioned whether the peer reviews could remain unbiased with the ‘corporatization’ of medicine. David W. Townsend, JD, wrote in Medical Economics(Feb 7, 2000) that solo practitioners lacking political support are frequent victims of peer review actions.
On the other hand, the establishment uses the peer review process to hide the mistakes of their own. When you belong to the “inner circle” at a hospital, you do not get reviewed or get reviewed/disciplined less harshly. The same goes for reporting to NPDB. Even if your outcome is bad, it is brushed aside as “these things happen”. Sometimes, you can make a sweet deal with the administrators, so as to avoid any reporting to NPDB. But, as mentioned before, the establishment conducts a zealous witch-hunt to scapegoat those who do not have the clout to be part of the power structure – less well connected, solo and minority physicians.
Behind the smoke screen of every one physician targeted by sham peer-review, there are a dozen physicians whose medical errors are quietly shoved under the rug! Therein lies the real source of threat to public health as well as injustice to those individual physicians, who become sacrificial lambs. The system goes to great lengths to create an illusion of public protection, while it is really protecting the establishment, by hiding medical errors of the politically powerful physicians. The concept that an elite group of physicians and the system, who are in a cozy symbiotic relationship, will demonstrate enough courage to criticize and discipline other members of their elite group, is plain ludicrous. If they did, they would threaten their own survival because their own medical errors would come to surface. (I use the word “elite” here because of their social power not because of their superior medical skills and judgment).
NATIONAL PRACTITIONER DATA BANK
This data bank was created with much fanfare by the Congress in 1986. Public perception was created and persists to date that somehow all the bad doctors would end up in the data bank and all the good doctors outside. U.S. congress Rep. Tom Bliley (R) has now introduced a bill to open up NPDB to the public.
But as elucidated above, one’s entry into the data bank simply depends on his or her political connections. As with everything else in life, there is an extreme double standard here. If you belong to the larger subset of physicians who constitute the “country club”, you will be protected by your colleagues from being disciplined. Or that your penalty will be so chosen that it does not get reported to data bank.
However, if you belong to the other subset of physicians, who are bright, conscientious, good defender of public health but lack social connections, you may be thrown into the bank as a scapegoat for minor and non-substantial infarctions. Medical establishment has the power to make you look like a monster lurking in the dark. They kill two birds with a stone, they eliminate you for reasons of their whim as well as they get a “notch” in their belt, show the public they are being guardians of public trust. Nothing is more hypocritical than that.
I believe that the information entered into the data bank is so incomplete and biased regarding physicians in general as to be of any help in stating with much confidence whether a physician is competent or not. The federal General Accounting Office reported in November 2000 that NPDB contained information that is incomplete, inaccurate or both. It is well-accepted that there is a low rate of reporting of “real” problem physicians to the data bank. A report by the Inspector General of the Department of Health and Human Services said that in the last decade, 84% of HMO’S and 60% of hospitals never reported a single “adverse action” to the government. It should therefore be obvious that, the bill introduced by Rep. Bliley is not going to give the public any meaningful insight into a physician’s competence, rather a false sense of security when they do not find a doctor’s name in the bank.
The consumer groups continue to want more entries in the data bank. Sen. Ron Wyden has said that the low level of reporting was unacceptable. While they are rightfully concerned with the low number of the overall entries, they should also be concerned with the fact that many of these entries are “forced” upon good doctors! They should also be concerned with the political, unjust and high-handed process by which these entries are generated to appease the public demand. And with the fact that peer-review process is controlled by the power elite in largely a mob fashion!
If five doctors assert that a woman should have a hysterectomy for no medical reason but for their obvious financial reward and one doctor disagrees, the lone doctor can be branded incompetent and cast away into the data bank. From then on, he is falsely perceived by the public as a bad doctor. He is headed for oblivion! There is no process of check or balance against such a sham peer review.
Let me give you another example. A surgeon is operating on a patient while the anesthesiologist is keeping the patient asleep. The surgery takes an unexpected turn and blood transfusion is needed. The anesthesiologist does not give patient blood in time. The patient suffers some damage. Now if the surgeon is not a good old boy but the anesthesiologist is employed by the hospital. Who do you think the hospital is going to hold responsible for the damage? And who do you think is going to end up in the data bank? This is exactly what happened in my case.
The chance of finding good or bad doctors is about equal either inside or outside the data bank! While I consider myself a well-trained, competent and humanitarian physician, my paper trail in the data bank would convince any potential patient to run away at the sight of me!
There are many other significant flaws in the system of reporting errors. For example, you will find multiple entries regarding the same factual issue concerning a physician. While the factual issue may be minor, substantial amount of public money is spent to generate these entries in the name of public good. Also, a frenzy of activity is created to give an impression that the system is doing its best trying to find the “bad apples”. With this adequate “distraction” created, the system merrily goes on with “business as usual”.
I have been called to task by my senior colleagues for doing the equivalent of an extra Pap smear while I know full well that these gentlemen themselves have filled their coffers with hundreds of unnecessary surgeries! Suddenly they pretend to be paragon of virtues and upholding every pillar of medical ethics! They exhibit “holier than thou” attitude for the simple reason that they are the establishment, I am the Johnny come lately.
It is difficult to go into all the details due to space considerations here. The medical profession has managed to put itself on a pedestal in public eye but the doctors are also human beings with instincts of survival and greed. They, along with the hospitals that control their behavior to control the bottom line, should be answerable to the society in general. There truly needs to be an independent study of the whole process of catching errors, disciplining the guilty and seeing that the process and data bank are more than a dog and pony show.
Although medical peer review is (or rather can be) A protector of public health, its current form, without balances, invites abuse. There is much reason to believe that peer review is practiced more in its corrupt form rather than for its original established purpose.
The Congress had devised peer review and NPDB as the way to reduce medical errors and keep the medicine safe from the public. However, they entrusted the establishment, the hospitals and the established doctors, with the process. They thought that the system would catch its own errors and reform itself. Well, as it turns out, the system is not such a saint! The situation with medicine today is reminiscent of the days when scientists of cigarette companies did their own research and declared that cigarettes did not cause cancer.
By and large, the people sitting in the review-committees themselves are interested in the bottom line – more surgery and more hospitalization. But to make a showing that they are doing something in the direction of “reducing errors”, they hang their more conscientious colleagues and the ones who may be better guardians of public health. The “bad apples” are thus throwing out the “good apples”. Dr. Charles Silver of Dallas, TX, has therefore said that the “noble act” (HCQIA of 1986) originally intended to monitor problem physicians, has gone totally in the opposite direction and, in many cases, decimated fine careers. Such is the power of establishment, that wants to maintain the “status quo” and pays cursory lip service to quality in order to quiet the critics.
Dr. Gerald Moss wrote in The American journal of Surgery” in 1994:
Our better (usually younger) surgeons increasingly are placed in jeopardy by the unchecked ignorance and/or malice of their established colleagues.
The establishment has thus thwarted the intent of Congress. As columnist James J. Kilpatrick points out in his column, their “candor” in review may be a camouflage for “cover up”. Once the hospital has thrown out the conscientious and the competent physician/s under the false label of “bad apple”, the rest of the doctors can “play while the cat is away”. They can do unnecessary surgery with impunity, hide each other’s mistakes, and generally forget about the public good.
The problem of bad faith peer reviews has come to the attention of the American Medical Association. However, the report (December 2001) of Board of Trustees fails to recognize and address many of the important issues as pointed out in this treatise. They need to dig deeper and more diligently in greater public interest and come up with a better report.
It is also unfortunate that the new report of Institute of Medicine (IOM) does not recognize or address the need to correct the severely flawed peer review process. The IOM report, however, abandons the “good apple, bad apple” theory and correctly blames the “system” for majority of errors. The AMA, however, completely ignores the “system’ contribution to medical errors. Thus, AMA and IOM both miss the mark in recognition of the problem and offering solutions for better health care.
If patient care is to reign supreme, this problem must be tackled and solved. AMA, state medical boards and societies, JCAHO and other concerned entities need to look into this matter seriously. However, it may ultimately rest with the Congress to do something about it.
In February 2000, President Clinton announced an initiative to improve patient safety and reduce the number of medical errors by 50% over the next 5 years. I believe that the following needs to happen to meet that goal:
- The hospitals need to stop playing favorites with some doctors at the expense of others and public health. ALL members of the department should review the medical charts on a round-robin basis. That would be more democratic, would it not? No administration appointed group of physicians should tower above the rest and abuse its power. The same should go for all hospital committees that control various functions. The way some people have all the power all the time, is the root of all corrupt practices.
- Secondly, laws need to be put in place for independent and unbiased “external review”. The external reviewers, when employed, should have no vested interested in the outcome of the review. This option should be available to the reviewed physician. But, some of the so-called independent “external” organizations are simply “guns for hire”, we need to watch out for them.
- American Medical Association envisions an “oversight committee” in each state to prevent abuse of peer-review process. This will serve as a check for sham peer reviews, avoiding local politics and conflict of interests. Some states, such as New York, have an oversight mechanism needed for the check. However, there is no mention of the “oversight committee” in the recent report of AMA.
- JCAHO and the medical boards should not just sit around in the face of calamity of justice. Conspiracies like the one in my case are far too common. They are not exceptions. Vital public health interests are at stake. If the hospitals can force physicians to review others with complete dishonesty, they can also force them to do more cesarean sections and hysterectomies. The economic interests are so powerful, mere power of suggestion from the administration will do.
- The hospitals should be required to show that they have reviewed everybody in a similar fashion and nobody is being doled out a disparate treatment.
- Some measure of judicial scrutiny is necessary for the peer review process to be honest, fair and beyond reproach. It is ludicrous to trust the administrators of hospitals with the altruism of defending the public. The job of the administrators is to make money. The strange concept of the need of a process to be completely hidden from public eye in order to achieve public good needs to be reexamined. Secretiveness invites abuse. The courts need to abandon their “hands-off” approach of today, public health is not just the realm of medical conglomerates, and the little man should be heard.
- Finally, there is nothing in today’s regulations that forces the hospital to do effective (non-perfunctory) peer reviews. The hospital can merely make a showing that they are doing something and get away with it. This situation needs to be remedied.
- Finally, the “system effect” on medical errors should be addressed. These last two points are topics for a whole new book on the subject.
With these measures in place, the peer-review and NPDB will have the desired effect of reducing medical errors and protecting public health. By bringing honesty into medical practice, they may well reduce unnecessary surgery, reduce medical costs and save lives. The congress and states need to take urgent steps to clean up the peer review process. And to say the least, the media needs to promptly bring this matter to public attention.
Ron A. Virmani MD, F.A.C.O.G is still in litigation.
15 Aug – Central Louisiana Politics and the Rapides Parish Legal Recorder report that a $3,900,00.00 judgement was awarded to Dr. Tommie Granger against Christus Health Central. After a jury trial, the jury awarded Dr. Granger that sum for unfair or deceptive trade practises and for a negligent misrepresentation of facts to Christus’ peer review action. See the jury’s special verdict form HERE.
Dr. Granger’s attorney, Jimmy Faircloth, Jr., in the case which has been ongoing since 2003, also has requested $79,644.80 in expert fees and court reporter costs. (See: Memorandum in Support of Plaintiff’s Motion to Tax Costs).
Christus’ attorney was Ron Fiorenza or the law firm of Provosty, Sadler, deLaunay, Fiorenza & Sobel.
In Lawnwood Medical Center, Inc. v. Samuel H. Sadow, M.D. Case No. 4D08-1968 (Fla. 4th DCA March 24, 2010) the Fourth District certified the following question to the Florida Supreme Court as one of great public importance: Are punitive damages of $5,000,000 arbitrary or excessive under the Federal Constitution where the jury awarded no compensation beyond presumed nominal damages but found that defendant intentionally and maliciously harmed plaintiff by slander per se?
by E. Patrick Buntz
May 11, 2010
Previously published by The Benchmark on Second Quarter 2010
A surgeon with staff privileges sued a hospital for breach of contract, and later added a claim for slander per se, seeking compensatory damages for both claims, as well as punitive damages for the slander. He alleged that the hospital had breached its contract with its medical staff, the Medical Staff Bylaws, by invalidly giving another surgeon exclusive privileges for cardiovascular surgery. The exclusive grant barred him from such surgery even though he had been approved to perform such surgery by the hospital’s credentialing committee and medical staff leadership. Statements identified as slander during the litigation by senior executive officers of the hospital included that the doctor was not even qualified to perform surgery on a dog.
The jury found the hospital liable on the breach of contract claim and fixed his total damages at $2,817,000. These were reduced to $1,517,000 by the court because he could have mitigated his losses. In separate proceedings on the slander per se claim, the jury found Lawnwood liable for the slander; that Lawnwood specifically intended to harm him by its per se slanderous statements; that, in fact, it had actually injured him by the statements. The jury found, however, that he suffered no compensable damages from the slander but that he was entitled nevertheless to punitive damages of $5 million from the hospital.
In the appeal of the slander per se claim, Lawnwood presented no appellate issues regarding liability or entitlement to punitive damages. Instead it appealed only the amount of punitive damages, confining its argument to the contention that $5 million is excessive under the United States Constitution.
The Fourth District Court of Appeal analyzed the U.S. Supreme Court’s decisions in State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 (2003) [State Farm], and BMW of North America Inc. v. Gore, 517 U.S. 559 (1996) [BMW]. Lawnwood argued that BMW and State Farm both hold that the Due Process Clause of the Fourteenth Amendment categorically bars any punitive damages exceeding a stated ratio with compensatory damages, usually 3:1 or 4:1. Dr. Sadlow argued that Lawnwood was incorrect as to the scope of these holdings. He contended that State Farm and BMW actually disclaim applying the ratio to all punitive damages awards, and that both decisions explicitly hold that the ratio may not apply in cases involving intentional and malicious conduct. In electing to agree with Dr. Sadlow’s interpretation of the State Farm and BMW decisions, the Fourth District Court of Appeal also cited to TXO Production Corporation v. Alliance Resources Corporation, 509 U.S. 443 (1993) [TXO], where the U.S. Supreme Court held that punitive damages of $10 million imposed for intentionally malicious misconduct are not improper even though actual losses were less than $20,000.
The 4th District also noted that under Florida Statute Section 768.73, as applied to intentionally malicious harm, punitive damages are tied to unusually reprehensible misconduct, rather than some ratio relating to compensable losses. Per the 4th DCA, this provision allowing punitive damages without proportionality for intentional, malicious harm satisfies any BMW and State Farm concern for fair notice and Due Process.
In the 32 page opinion, the appellate court came down hard on the hospital for the intentionally malicious defamation and for the attack against the doctor’s personal reputation. The judges even quoted the Ninth Commandment: “Thou shall not bear false witness against thy neighbor.” The appellate opinion noted that Lawnwood officials never offered to retract what was said about Dr. Sadow. The hospital’s attorneys called the words, “rhetorical hyperbole” and that the executive who made the remark was “Just kidding.”
The appellate court in Lawnwood Medical Center, Inc. v. Samuel H. Sadow, concluded that although no compensatory damages were awarded for the slander per se, the amount of punitive damages assessed conforms to applicable law and is neither excessive nor arbitrary so as to exceed federal Constitutional norms. Because the issues presented are of great public importance as to the imposition and assessment of punitive damages under Florida law for cases involving intentionally malicious, harmful defamation per se under TXO, BMW and State Farm, the Fourth District Court of Appeal certified the question to the Florida Supreme Court.
LONG BEACH – An effort by David Cundiff to have his doctor’s license reinstated has suffered a setback, with an administrative judge agreeing there should be no re-examination of the original evidence – even if key portions are reportedly false. Cundiff maintains his license was revoked after a key witness gave false testimony, but efforts to have the case Continue reading ‘Judge denies review of ex-doctor’s license revocation’
SSI recently received this email from someone who identified himself as a physician and wants to refer SPR victims to Semmelweis:
Please post this to everyone involved in this running feud. I used SSI when I was having my career ruined. Now I don’t know where to send fellow health care providers to when they are getting their lives ruined in a sham peer review. All the clinics and hospitals will use your fued (SIC) against you in court and discerdit (SIC) SSI. Shame on all of you for what you are doing. Both sides of this SSI fued (SIC).
SSI believes that your question is important. As requested, we have posted your email and this response on our website.
If you are mugged and you defend yourself, the casual observer might conclude that you and your mugger are equally and shamefully immoral. Reasonable people know, however, that your morality is not based upon the pedestrian’s casual observations. By raising the specter of shame, you are either profoundly misinformed or are practicing the intellectually lazy doctrine of Relativism. If either is the case, I encourage you to join Dr. Murtagh’s cohorts.
If you read my preliminary investigation and my ongoing investigation you’ll see that “the dispute” began in May 2008 when ex-SSI members James Murtagh and Kevin Kuritzky issued outrageous allegations against UC Professor Peter Duesberg and investigative journalist Celia Farber, with the intent to compel the SSI Board to summarily rescind their 2008 awards without review.
Their complaint called for a competent independent investigation because, if false, their libelous allegations could have professionally harmed both (per se libel) and would have unnecessarily subjected Semmelweis and its Board to unnecessary liability.
As a retired member of the LAPD and licensed investigator who had not heard of the issues, disputants or SSI before 2008, no one was better suited to examine the charges. As soon as I began my investigation however, Murtagh’s camp tried to pressure me into stopping it – going as far as criminal attacks and witness intimidation.
My continuing investigation eventually developed sufficient evidence for this New York Supreme Court lawsuit against and Murtagh and Kuritzky, who are still hiding from process servers. Their co-defendant receives, directly and indirectly, millions of dollars in funding from pharmaceutical and mining companies (and their investors) that avoid billions of dollars in liability by blaming their impoverished black African miners’ silicosis, asbestosis and tuberculosis on “irresponsible sex” (e.g. AIDS). Murtagh, his co-defendants, hedge fund operators, pharmaceutical companies, international mining companies and the UN promote the scam as a “human rights” issue in order to sack Africa’s rich mineral wealth while attacking individuals like Farber and Duesberg who question the arrangement. Without AIDS, thousands of international mining operations in Africa would close – as they almost did in 1995.
So outrageous were Murtagh’s charges that even his collaborators recently distanced themselves – calling him morally repugnant.
If Murtagh’s allegations against Farber and Duesberg were true, he would enthusiastically respond to the civil charges against him - just as SSI did after Ralph Bard filed his frivolous lawsuit against SSI last December. Because of our fact-based response, Bard’s own neighborhood court will soon dismiss his complaints.
So as you can see, the two sides consist of 1) the current board and membership, and 2) “Murtagh’s camp” which libelously tried to rescind the 2008 awards to Duesberg and Farber without evidence – in what anathematically resembles “sham peer review.”
If you read my bio and investigation you’ll see that I have better things to do than keep the peace between SSI and a tiny group of socially dysfunctional ex-doctors. But as a victim of retaliation myself, I never targeted others for personal gain. Murtagh’s camp demonstrates that not all peer review are shams: Their behavior only serves to corroborate whatever allegations were once made against them.
My year-long examination concludes that SSI, its membership, mission and goals are too important to turn over to alleged men who attacked SSI on behalf of individuals like Murtagh and Kuritzky.
What also appears to animate Murtagh’s camp is SSI’s refusal to advertise legal services by ex-doctors. The SSI Board stopped this practice last year when they sensed that SSI’s former ex-doctor-lawyer board members were exploited SSI’s website, name and members for personal gain.
Since those lawyers were removed from Board influence last year, SSI has assisted more than a dozen physicians and nurses with free legal consultation and affirmative defense that has saved their careers at a minimum cost.
Because of the complications of HCQIA and peer review, SSI no longer promotes the use of career doctors who become lawyers for the same reason that we would not encourage surgery by a career lawyer who becomes a surgeon. When it comes to peer review cases, experience matters.
If you’re still confused about what you’ve called our shameful dispute, SSI probably isn’t for you. Our mission and goals are too important to waste time with Murtagh cohorts or those who are easily confused by them: Nor do we waste much time thinking about them. Like other benign pathologies, they will eventually slough off or find softer targets.
As a former US Marine and LA cop, I am proud that the SSI Board stood strong in the face of Murtagh and his enablers. Dr. Ignaz Semmelweis knew that courage often exacts a terrible price. Of courage, Aleksandr Solzhenitsyn wrote:
A decline in courage may be the most striking feature which an outside observer notices in the West in our days. The Western world has lost its civic courage, both as a whole and separately, in each country, in each government, in each political party, and, of course, in the United Nations. Such a decline in courage is particularly noticeable among the ruling groups and the intellectual elite, causing an impression that the loss of courage extends to the entire society.
SSI membership is not for the morally confused or ambivalent. While it takes courage and endurance to fight corrupt multi-billion dollar healthcare and pharmaceutical industries, it would take comparatively little effort to accept the material benefits that would come by surrendering to them in the name of patient safety and Semmelweis.
As long as there are some healthcare professionals who take their Hippocratic Oath seriously, I am proud to remain in that fight.
Semmelweis Society International
SACRAMENTO 6 Apr 09 – The California Supreme Court issued a major victory to Dr. Gil Mileikowsky and healthcare professionals throughout the US today, issuing a decision regarding the conduct of his medical peer review hearing in 2003. The Court wrote:
We conclude the hearing officer lacks authority to prevent a reviewing panel from reviewing the case by dismissing it on his or her own initiative before the hearing has been convened, and also lacks authority to terminate the hearing after it has been convened without first securing the approval of the reviewing panel. We therefore will affirm the judgment of the Court of Appeal.
Dr. Mileikowsky (“Dr. Gil”) is a champion and advocate in the nationwide effort to end “sham peer review” (SPR) – a corrupt practice in which hospitals retaliate against physicians and nurses who report dangerous physicians, hospital conditions, or who successfully compete against hospitals by delivering superior service. By rigging a medical peer review board that cherry picks ordinarily insignificant mistakes, hospitals use SPR to intimidate and silence physicians who are sworn to improve healthcare and protect patients. Those targeted face a financially crippling fight to retain their clinical privileges. Sadly, many physicians endure financial ruin and the loss of their medical careers. Some lose hope and end their lives in suicide.
Hospitals accused of SPR have included Kaiser, Tenet, and non-profits like Adventist. Because hospitals have profited from harming patients, the Supreme Court’s decision could have a positive impact on patient safety throughout the US healthcare industry.
Dr. Mileikowsky is the President and founder of the Alliance for Patient Safety and a member of Semmelweis Society International (SSI), which supported Mileikowsky throughout his appeal. Attorneys Jeffrey White and Georgetown Law Professor Alan Ullberg assisted SSI in the preparation of its amicus brief.
Health Leaders Media recently named Dr. Mileikowsky as one of America’s top healthcare leaders.
For more information, see the California Supreme Court opinion.