A strong endorsement of federal immunity for hospitals whose peer review efforts criticize physician conduct has come from the United States Court of Appeals for the Fifth Circuit, Poliner v. Texas Health Systems, No. 06-11235, July 23, 2008.

The court reversed and rendered in favor of the hospital a $33 million judgment Dr. Lawrence Poliner had obtained as the result of a 29-day investigation of his cardiology practice. The investigation followed an incident in which Poliner operated on the right coronary artery of a patient without realizing that the patient's left anterior descending artery was completely blocked. Sanctions recommended by a review committee were later relaxed after an outside review of the incident.

The opinion establishes for the first time in the Fifth Circuit key principles of Health Care Quality Improvement Act immunity:

• the test for immunity is an objective test based on facts known to the peer reviewers at the time, no matter what "post-hoc expert analyses" may show;

• so long as the peer review action, viewed objectively, appears to be in furtherance of quality health care, the reviewers' personal attitudes towards the physician are irrelevant;

• if federal statutory immunity standards are met, violations of hospital bylaws that set different standards cannot result in damage liability, although they might be a basis for state law injunctive relief; and

• peer reviewers can take action if the failure to act "may result" in imminent danger to a patient, and proof that the physician is grossly incompetent is not required.

Phelps Dunbar LLP lawyers Luther T. Munford and Justin Matheny filed an amicus brief on the HCQIA issues on behalf of Health Care Indemnity, the American Hospital Association, the Mississippi Hospital Association, the Methodist Hospital of Houston, Texas, North Mississippi Health Services, Inc., Children's Medical Center of Dallas, Texas Children's Hospital, Tenet Health Care Corp., Texas Health Resources, Summa Health Systems, Our Lady of the Lake Hospital, Inc., and Rush Health Systems, Inc.     

A copy of the amicus brief is posted on the American Hospital Association Web site, http://www.aha.org/aha/advocacy/legal/resource-library-2007.html