Representative Cases

Peer Review / Legal Malpractice Case Study
1. Factual Analysis

Dr. Leslie Marbles is an OB/GYN with privileges at McAllen Medical Center. She is a very serious physician and is very involved with her own clinic. Because of this, many of the other physicians and hospital staff do not know her very well. She has had ongoing problems with a nurse who works in her office. This nurse, Nurse Davis, has many personal problems, including drug use, and she repeatedly discusses these problems at work. Nurse Davis also has a difficult time getting along with the other nurses and office staff employed by Dr. Marbles. After an extremely inappropriate outburst, Dr. Marbles decides to terminate Nurse Davis’ employment. Nurse Davis then secures a job with Dr. Smith, the head of labor and delivery at McAllen.

Dr. Marbles has also had some difficulty working with the labor and delivery nurses at the hospital. After one difficult delivery where she thought the nurses mishandled the patient’s care, she reported two nurses to their supervisor. Ever since that incident those nurses have been very difficult for Dr. Marbles to work with and they have begun a gossip campaign about the way in which she handles her office.

A few months later, one of Dr. Marble’s patients has a ruptured uterus, which requires an emergency c-section. After the surgery, the infant is in distress and has a grim prognosis. One month later the infant dies. The hospital’s Quality Review Committee investigates this case as part of their normal procedure and in anticipation of a possible lawsuit. Dr. Marbles, when reviewing the patient’s chart notices that the nurses’ notes have been altered. She adds an addendum to the chart explaining this. The Quality Review Committee decides that Dr. Marbles acted within the standard of care when treating her patient. They also, however, send her a letter admonishing her for placing the addendum in the patient’s chart.

The next week Dr. Marbles receives a letter notifying her that her privileges have been suspended pending the outcome of a peer review hearing. The letter contains two allegations: 1) that she had administered a labor inducing-drug without the knowledge and consent of several patients and 2) that she had failed to report pending litigation on her application for renewal of hospital privileges. After she receives this letter she demands to have hospital administration search her office to look for the drug. Administration refuses, but she does have the McAllen police do a search, which is witnessed by another physician at McAllen.

Dr. Marbles is then sent a letter inviting her to attend a meeting of the Medical Executive Committee. She hires a lawyer to represent her at this meeting.

2. Legal Course of Action
When the meeting commences, Dr. Marbles’ attorney is allowed to make a statement. There are no other witnesses present. The Committee decides to uphold the suspension. After this, Dr. Marbles is notified of her right to a peer review hearing pursuant to McAllen’s by laws.

The hearing is held a few months later. Dr. Marbles does not find out where the accusations stem from until her peer review hearing. At this time she learns that the accusation of using a labor-inducing drug with the knowledge of several patients was initiated by Nurse Davis. During the hearing, the two labor and delivery nurses, with whom Dr. Marbles had previously had problems with at the hospital, gave testimony that on two separate occasions, while working the night shift, they found the remains of a labor inducing drug in Dr. Marbles’ patient. However, no witness could identify any particular patient by name, no dates could be given and no charts were produced. The nurses admitted that they did not note in the patients’ charges that they allegedly found remains of the labor-inducing drug upon examination of the patients’ cervixes, nor did they otherwise report their alleged findings at the time of the alleged occurrences.

As to the reporting of litigation issue, Dr. Marbles was one of several resident interns represented in litigation that arose from an incident during her residency. She had been instructed by her former attorney not to report this suit until he was sure that she would actually be named as a defendant because in most cases residents are dropped from the lawsuit. A settlement was eventually worked out because of the time and economic costs of trial preparation and trial for the now practicing doctors scattered across the U.S. The settlement was paid by the hospital in question, but a small portion of the out-of-court settlement was attributed to each of the resident doctors. Upon settlement, the attorney for the resident doctors wrote a “To Whom It May Concern” letter concerning the litigation and the settlement outcome. This letter was then forward by Dr. Marbles to the McAllen hospital, at which she currently had privileges.

The McAllen hospital was represented by the same law firm that represented Dr. Marbles in the malpractice suit when she was a resident. However, a different attorney with the firm handled the McAllen hospital business. Approximately 6 months after Dr. Marbles had forwarded the “To Whom It May Concern” to the credentialing department of the hospital, Dr. Marbles was informed of the Peer Review proceedings, during which the attorney from that same law firm continued representing the hospital.

During the peer review process there was never an actual finding that Dr. Marbles had indeed used a labor-inducing drug or that Dr. Marbles had failed to obtain patient consent for use of the drug. However, Dr. Marbles was found to be “lacking” and culpable, and she lost her privileges at the hospital, which also caused her to lose patients. Dr. Marbles appealed this decision and the Appellate Review Committee upheld the decision of the Medical Executive Committee.

McAllen Hospital then sent a report to the National Practitioner’s Data Bank detailing the outcome of the peer review process and reporting Dr. Marbles’ loss of privileges. This report causes her to be dropped from many provider networks and to lose her privileges at other hospitals. In turn, she is no longer able to care for many of her patients. After this happens, Dr. Marbles decides to pursue legal action against the hospital and their attorney.

3. Outcome
Dr. Marbles files a legal malpractice lawsuit against the hospital’s attorney. She also files a suit against the McAllen hospital for libel and slander (NPDB reports saying she improperly used a labor-inducing drug), for business disparagement and for economic damages, as well as pain and suffering due to stress and stress-aggravated medical condition, causing her to lose “time” as opposed to taking pain medication while continuing his practice.

Her suit alleges that the hospital failed to meet the standards enumerated in the HCQIA and the TMA. She feels that the hospital’s witnesses had malicious motives for testifying against her and that the hospital knew about these motives and disregarded that knowledge when investigating the allegations. Her lawsuits are still pending, but have proven difficult.

4. Lessons to be Learned
It is very difficult to file a lawsuit based on what occurred during a peer review hearing because of the immunity that is afforded under the law to the participants in that proceeding. To date, only one physician in the country has been remotely successful in pursuing this type of suit.