Lawsuit: Hospital tainted surgeon
Defamation case exposes battles to protect market
Miguel Gomez III was a star at Memorial Hermann hospital, a cardiothoracic surgeon who did cuttingedge heart procedures that used precise, tireless robot arms and lowered costs significantly. He served at different times as chairman of both the surgery and cardiovascular departments, becoming a high-profile physician whose pioneering work was promoted by Memorial Hermann in seminars, radio shows and speaking engagements.
Until he decided to leave for Houston Methodist Hospital.
Soon, word started leaking that patients appeared more likely to die under Gomez’s care. It was a contention based on manipulated data, according to a lawsuit filed in state district court in Harris County, but one that allegedly became part of a “whisper campaign” by Memorial Hermann to smear Gomez’s reputation and keep patients from leaving the hospital with the surgeon.
“It turns out I was coming between administrators
and market share,” Gomez said.
Gomez’s lawsuit, which went to trial last week, charges Memorial Hermann with defamation and restraint of trade. Memorial Hermann denies the allegations, but the case nonetheless opens a rare window on the fierce competition among hospitals and the lengths to which they might go to protect their business.
Independent doctors with admitting privileges are vital to hospitals since they refer patients, and specialists like Gomez, who perform six-figure procedures with high profit margins, are particularly important, health care experts said. As a result, hospitals fight to hold onto doctors, using tactics that range from providing highquality nursing support to putting specialists such as anesthesiologists under exclusive contract to prevent them working elsewhere.
“Without doctors, what are you going to do?” said Rocky Wilcox, general counsel of the Texas Medical Association in Austin. ‘Play ball with us’
What makes this case unusual is that it has made it to trial; such suits are typically settled and sealed long before the details of the business disputes between hospitals and doctors become public in court filings. Gomez’s suit focuses on peer review, a confidential process conducted by a committee of physicians to weed out bad doctors but one that legal and health care specialists say is sometimes manipulated to prevent doctors from moving their patients and practices to competitors.
“The whole process is being perverted to allow hospitals to use the peer review process as a cudgel to get doctors in line,” said Brent Walker, a Dallas lawyer specializing in health care. “Play ball with us or we’ll use the peer review process to hurt you.”
The American Medical Association, which represents about 250,000 doctors nationwide, said it knows of several court cases around the country in which hospitals were accused of denying physicians admitting privileges based on economic factors rather than professional competence. In one case in Texas, two doctors alleged they were dropped from a hospital, its health maintenance organization and its managed care network when they invested in a rival facility, said R.J. Mills, an AMA spokesman.
The case settled before it went to trial.
The Texas Hospital Association, which represents more than 85 percent of the hospitals in Texas, did not respond to a request for comment. But in a brief filed with the Texas Supreme Court in connection with the Gomez case, it defended peer review as a fair, thorough process that protects patients from bad doctors and aids hospitals in providing quality care.
Alex Rodriguez Loessin, a Memorial Hermann spokeswoman, also defended the hospital’s peer review process, which in Gomez’s case relied on data collected by the Society of Thoracic Surgeons. The data was used to improve patient care, not hurt Gomez, she said. ‘Destroyed’ reputation
Memorial Hermann has long dominated the market in the Energy Corridor in west Houston, prospering from the well-paid, wellinsured oil and gas workers who use the hospital’s services. In recent years, other providers have muscled in on Memorial Hermann’s territory, none more aggressively than Houston Methodist, which in 2010 opened a 193-bed hospital with 15 operating rooms and recruited Gomez.
Gomez, 51, earned his medical degree from Baylor College of Medicine and did his residency at the University of Texas Health Science Center in Houston. He obtained privileges at Memorial Hermann in 1998 and became a specialist in “off pump surgery,” a procedure that eliminates the need for a heart-lung bypass machine during open heart surgery and leads to quicker recoveries and shorter hospital stays, saving patients $50,000 or more in medical costs.
In 2009, after more than a decade at Memorial Hermann, Gomez said he became concerned about costcutting measures, such as reducing the staff of intensive care nurses, which he believed compromised patient care. He began considering moving his practice.
About the same time, according to court documents and interviews, Gomez was visited by Memorial Hermann administrators who presented data that allegedly showed his patients had a higher mortality rate than those of other surgeons. They ordered Gomez to either stop practicing or operate only under the supervision of another surgeon. Gomez examined the data and found irregularities.
The outcome of his regular patients had been combined with “last-hope” emergency patients who faced next to no chance of living without extraordinary measures, according to court documents. He later discovered the statistics also included a deceased patient who wasn’t his, according to court papers.
Standard peer review does not lump mortality data together but instead examines the underlying facts of each case to determine whether patients got the best care, health care specialists said. A committee of the hospital’s surgeons reviewed Gomez’s patient records and found no problems or concerns with his care, according to court records. Gomez thought that was the end of the matter.
In 2010, Gomez gained admitting privileges at Houston Methodist’s new hospital in west Houston and began doing procedures there. The flawed mortality data resurfaced. In one instance, the data was presented to a room full of colleagues at Memorial Hermann, giving “the appearance that patients were more likely to die in Dr. Gomez’s care,” according to Gomez’s lawsuit. Rumors about high patient death rates spread through the network of family practice and internal medicine doctors on which specialists depend for referrals, and Gomez said, his referrals declined significantly.
Gomez said in the lawsuit that he believes Memorial Hermann encouraged the whispers to prevent his business from getting diverted to Houston Methodist. And it worked, he said. During his heyday at Memorial Hermann, Gomez did at least one surgery a day; today, he does one or two a week.
“They destroyed my reputation as a cardiovascular surgeon,” Gomez said. Like a shield
Gomez, feeling his position had become untenable, resigned his privileges at Memorial Hermann in 2012. He also called a long-time friend, Michael P. Doyle, a Houston lawyer. The two were classmates at Strake Jesuit College Preparatory — Gomez graduated No. 2 in the class of 1983, Doyle No. 3.
Doyle recalled advising his friend that he could bring suit using a 30-year Texas law aimed at preventing anti-competitive behavior by hospitals but that it would be a long shot.
“But if you’re up for it,” Doyle told Gomez, “I’m up for it.”
To prevent vendettas against doctors, Texas law requires the peer review process to allow doctors access to confidential data if a doctor can show the process was used to quash competition. Gomez filed suit against Memorial Hermann in 2012; Memorial Hermann responded in court documents that Gomez’s claims of defamation had no merit and his contention that Memorial Herman had engaged in anti-competitive behavior were unsupported by evidence. The hospital also opposed Gomez’s efforts to gain access to confidential documents from the peer review process.
“The hospital is using peer review as a shield,” said Gomez.
But Gomez scored a rare series of victories to bring his case to trial. In 2013, a state district court ordered Memorial Hermann to turn over peer review documents, a decision affirmed by the First District Court of Appeals. Memorial Hermann appealed to the state Supreme Court, which also ruled in 2015 that the hospital had to release the bulk of the records, determining that Gomez had sufficient evidence that the hospital was trying to squelch competition.
That included an affidavit from Jo Pollack, a surgeon specializing in breast cancer, who said she faced the hospital’s wrath when she didn’t send her patients to the Memorial Hermann network for all their medical needs. ‘Political suicide’
In 2009, Pollack said in her affidavit, Memorial Hermann executives told her that she was committing “political suicide” and her practice could be in jeopardy if she did not refer her patients to oncologists and imaging facilities affiliated with Memorial Hermann. Pollack, who described herself as one of the busier surgeons at Memorial Herman, routinely referred patients to oncologists and imaging centers not affiliated with Memorial Herman because she viewed them as superior. In addition, she said, independent imaging centers, which do MRI’s and similar diagnostic screenings, typically charge a fraction of what hospitals charge.
“They didn’t want anything outsourced,” Pollack said in an interview.
After her tense meeting with hospital administrators, Pollack moved to Methodist West in 2010. Referrals from Memorial Hermann doctors shriveled up, and Pollack said her income dropped by 50 percent. She said she has yet to rebuild her practice to what it was seven years ago.
Memorial Hermann declined to comment on Pollack’s allegations but noted that Pollack has privileges at the hospital. Pollack described them as “courtesy privileges,” which allow her to operate on patients whose insurance coverage dictates Memorial Hermann for services. Day in court
Gomez’s case began its trial last week. Gomez, like the medical community and the public, will have to wait to see what is in the confidential records related to the peer review process. Under the court order, most of the documents were placed under a protective seal, available before the trial only to Gomez’s lawyer and designated experts who may testify at the trial. They won’t become public until they are introduced as evidence during the trial.
Gomez is seeking compensation for lost revenue, damaged reputation and mental anguish. The trial is expected to last three weeks.
Sitting in his office suite recently, Gomez talked about his effort to restore his reputation. He said he gets calls from other doctors who believe hospitals are using peer review to pressure them to keep their business from moving to competitive hospitals, networks and services. Many feel they can’t fight, Gomez said, but he figured he had little choice.
“At the time, I didn’t know of the campaign they were waging against me,” said Gomez. “Now I understand the deliberate campaign against me and all the other good doctors who were not following their business plan.”