Normally, when a doctor is subjected to peer review over safety concerns, it is a cage fight. If the doctor loses, his career will be on life support. His reputation damaged. Reports made to licensing boards and National Practitioner Data Bank. He will wander in the desert for 40 years.
Dr. Miguel Gomez never received THAT memo.
A Court of Appeals upheld a $6M judgment awarded as the remedy against Memorial Hermann Hospital system. The charge: business disparagement, defamation, tortious interference, and restraint of trade.
Dr. Gomez practices in Houston. Houston is ground zero for cardiothoracic surgery. That market is very competitive and each institution struggles to stand out.
In the lawsuit filed in 2012, Gomez claimed:
after he told Memorial Hermann’s then-CEO Keith Alexander he was concerned about the declining patient care at its hospital in Memorial City, a Houston business district, and threatened to move his practice to The Methodist Hospital, Alexander destroyed his reputation.
A little history.
Gomez began practicing at the hospital in 1998. He became known for robotic cardiac surgery. In 2009, his reputation was blemished after the hospital initiated a program to analyze patient outcomes.
It hired Byron Auzenne to lead its heart service and made him the point man on reviewing heart doctors’ mortality rates, according to the case record.
Gomez learned that Memorial Hermann’s data demonstrated Gomez had a high mortality rate. The hospital was concerned federal funding sources would shut the cardiovascular program down.
His partner, Dr. Don Gibson, told Gomez “because of those reasons you’re going to be suspended or you’re going to be proctored” – monitored by other doctors during surgery, according to the ruling.
Gomez testified that conversation left him in a state of shock. But he attributed the high mortality rate to the hospital’s use of raw data, which he told Auzenne was invalid because it was not risk-adjusted.
Note: The Society of Thoracic Surgeons publishes its own database for risk-adjusted mortality. These risks include history of stroke, renal failure, obesity, and so on. Risk adjustment takes into account how sick the patient is. The sicker the patient is, the higher the mortality rate. The patient is a partner in driving that statistic, not merely the surgeon.
The head of the hospital’s peer review committee testified after reviewing the data, his committee concluded none of the 4 heart surgeons would be suspended. They did not need proctoring. This same committee admonished Auzenne to stop using flawed data that failed to adjust for risk.
Gomez thought that was the end of the matter; that he could breathe a sigh of relief.
Not so.
Hospital administrators again cited misleading data in 2011. Auzenne apparently told Gomez:
that he and CEO Alexander had decided the “data needed to be shared, that we needed to be a transparent organization, that this was a safety issue,” and he had shown the data to other physicians who referred patients to Gomez so they could make informed decisions.
The court stated there was no evidence that the person who made the defamatory statements did so to someone who could take action if the mortality stats were accurate, or that it was made out of concern for patient safety.
The hospital argued that Gomez now enjoys a good reputation and doctors refer to him. But, an expert witness testified that there was a decline in patient volume that began in 2009 and continued for years. She argued his practice never recovered.
The reputational hit affected Gomez directly.
His wife said the data portraying her husband as a bad doctor left him feeling like he “ha[d] this huge scarlet letter on him.” She said he stopped eating, started pacing incessantly in their home and became an insomniac.
She testified Gomez “just stuffed it all inside and went and crawled in a hole,” and she recalled him saying, “I don’t think I’m going to operate anymore.”
The $6M should ease the sting. Memorial Hermann is still considering appealing to a higher court.
The road to this appellate victory was not easy. On the path, Gomez needed to claw peer review records from the hospital. That required an appeal all the way up to the Texas Supreme Court.
Next, the hospital argued, it had a qualified privilege to make even defamatory statements unless made with malice. Malice here means the person making the statement did so knowing it was false or with reckless disregard for the truth. Gomez argued that the hospital’s whisper campaign was made with malice, so any privilege, even if it did exist, would not apply.
The Texas Medical Association (TMA) backed Gomez. It stated that blindly immunizing institutions against these kinds of disparaging statements can abuse the law’s noble purpose. In theory, hospitals are supposed to promote patient safety. But any tool can be refashioned to achieve other ends – such as retaliation.
TMA warns that protecting these kinds of disparaging statements opens the door for health care facilities “to shield their anti-competitive and retaliatory behavior towards physicians under the guise of common interest and patient safety concerns.” Physicians would risk retaliation for making everyday patient treatment decisions, TMA adds.
“Personal reputation is the most important thing a physician has,” TMA wrote. “It is important to fairly balance patient-safety care concerns with the harm caused to the reputation of the physician when such concerns are false, especially when there is evidence of anti-competitive or retaliatory behavior. Unbridled use of the privilege poses a threat to all Texas physicians and their practices.”
The court agreed.
Such outcomes are rare. Doctors need to find competent counsel, have a legal war chest, and be prepared for a long fight. While fighting, they may become unemployable.
When your reputation is under scrutiny, counter-narratives are critical. If there are no counter-narratives, you risk defamation. The reason is simple – if no one is speaking up for you, patients and colleagues will likely believe whatever they are told. And if the story told is one-sided, your reputation will suffer.
Great doctors will always be great doctors – but a great doctor’s quality of care is not always reflected accurately online. To help doctors address this problem, Medical Justice created eMerit – a platform that captures patient feedback in the office and uploads it to the internet. This promotes the doctor’s online reputation and protects him from defamation – assuming the captured feedback is favorable.
We’ve helped thousands of doctors guard their reputations against bad actors and expand their reach of care.
To learn how this tool works in detail, click here…
In this example, David bested Goliath. The underdog (Dr. Miguel Gomez) prevailed.
What do you think? Let us know your thoughts below.
Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With over 50 combined years of experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
Hospital CEOs have been known to go on these kinds of campaigns against physicians using a sham peer review process. Instead of saying to the physician, we will look into the quality of care issues you mention and fix them, OR please feel free to go on to your next venture in life with our blessing, they take it upon themselves to punish the physician. Typically it is on the basis of phony sham peer reviews. The effects on physicians is terrible, as in this case. CEOs have been known to give bad reviews to future places of employment to further destroy a physician’s livelihood. Unfortunately some hospital CEOs take the power that they have and use it against others. The bottom line for the CEO should be about patient care, and making the hospital profitable. Instead it seems to be all about power. Not all hospital CEOs are like this but some are, and they wreak havoc in their medical communities. Often it takes a few years till the hospital board figures out that they have a huge turnover problem with physicians and the facility is losing money, while the CEO is on a power trip. Then these CEOs are shown the door. A very sad story that often costs physicians years off their lives due to stress, and years of earnings paid to support the legal fees.
I somehow believe there is a playbook for hospital administrators on how to get rid of their “problem” physicians.
I was ousted in a sham peer review once and it was devastating to my psyche- fortunately I had unknowingly developed an escape route and took this with a young family and bills to pay. The next place I landed was nurturing and protective until it was taken over by another hospital system. I had learned the signs/symptoms when this system started down this pathway in less than 2 months of employment and I could see the proverbial “handwriting on the wall” and bailed. I have subsequently found a system that values my work a great deal and also seems to have never read the book on how to get rid of “problem ” physicians- or maybe they are just too busy trying to make this health system and community better.
I think there is a lesson to be learned which is to not blindly trust any CEO or person in management. They get corrupted by power, think irrationally with cognitive biases and/or incomplete/erroneous data, and feel empowered to attempt the ruination of your career. But, also, remember that there were three other heart surgeons that were cleared by the peer review committee. Why did they not leverage their collective strength to help this guy? Oftentimes, I find that other physicians know something bad is going down, and say nothing! Why? They are afraid of anti-competitive and retaliatory actions against themselves. And even worse are the instances where other physicians are covertly or overtly complicit in the anti-competitive and retaliatory actions against a physician, whether as part of management or a competing practitioner or co-worker.
Two years ago, there was rumor that one of may partners was going to punished by our chairman for low productivity based on the performance metrics supplied to our group from our affiliate foundation. Others and myself had previously questioned whether the data was correct. We were told, “It is the data we have. It is done by computers.” I spent my own time digging into the data and, guess what, found it to be very inaccurate. Basically, I found that about 20-25% of our work from our associated hospital was not being captured for many years due to issues with the coding and billing snafus. This resulted in about $1.9 million payment back to my group members. My partner never got an apology from those clamoring for him to be punished based on fake data. Also, I have less respect for our chairman and some my other partners because they were ready to just accept the fake data and take punitive action based on the inaccurate data.
So, in reality, physicians have to watch out all the time because the knife in the back can come from anybody.
Thank G-d I am a solo practitioner and don’t need to deal with this nonsense. When it comes to corporate practice with their performance metrics (quite often unreasonable IMHO), dentistry is ,unfortunately, following in the footsteps of medicine. I cannot practice that way – I care about my patients too much to be rushed. Plus, I can’t live comfortably with the stress. Therefore, the only higher up that will give me such stress and aggravation is …me. I also noticed that Dr. Gomez was given grief by someone with no medical degree and so no direct experience. It figures. I am truly sorry for all who need to be on constant guard for that “knife in the back.” May it never come.