Unfortunately, I did not completely discuss the most recent post. Overlawyered has commented again – Blogs on Poliner.

Commenters are focused mostly on the liability decision, but one thing that immediately strikes the eye is the complete divorce from reality of the damages figure of $366 million. Even if one assumes that Poliner’s career was completely ruined notwithstanding a different peer review’s exoneration and throws in a million dollars for psychic injury, the figure is off by at least a factor of ten; if one more realistically limits damages to the few months he was out of practice, at least a factor of 100; if one limits damages to the month between the initial suspension and the privileged decision of the peer review committee, even more. Usually the remedy for excessive damages is “remittitur,” a fancy Latin word for the process where the judge makes up his or her own damages figure and tells the plaintiff to agree to that reduced figure or a motion for a new trial will be granted. But if a jury’s damages determination was the irrational product of passion, why presume (and, often, essentially assume) that the liability decision was reasoned?

Rangel also steps in – The peer review system is broken

The entire case is mired in politics and retribution. Following the reinstatement of his privileges Dr. Poliner tried to have the initial suspension stricken from his record but an appeals committee found that the original peer review committee had done nothing wrong as far as “due process” is concerned. Now this is a curious situation. The initial peer review committee suspended Dr. Poliner based on poor patient care. Then a second committee 6 months later reversed that decision and reinstated his privileges, and then another committee said that the initial committee had done nothing wrong. HUH? Am I missing something here? No wonder he sued.

While I know another of the physicians involved (whom I respect greatly), that knowledge is tangential to my request for a barf bag.

Many lawyers have criticized physicians for not putting our house in order. They challenge us to self-police. The imply (or some even state) that doing so would decrease malpractice.

However, this case shows that criticism is ludicrous – unless we divorce self-policing from the tort system.

We need not make a judgement (and cannot make a judgement) on which side is correct here. What makes me nauseous is the response!

Dr. Poliner probably had no choice, but that saddens me. We need to develop more mature methods to allow self-policing.

Here is the problem, put into diagnostic testing terms. We want a high sensitivity for censoring physicians (i.e., we want to remove all the “bad apples”). We also want a high specificity (we do not want to falsely accuse). Any student of diagnostic testing knows that in order to increase sensitivity, one must sacrifice specificity (and vice versa).

Thus we need a system that allows for careful arbitration from a panel of unbiased experts. We do not need juries deciding physician competence.

The case bothers me because of its implications. We have no gold standard. Yet we must police ourselves.

The hospital has a responsibility to police the medical staff (using physician panels). The insertion of a legal process (even if justified) will inhibit other such policing. This case has no winners, and many losers.

Related posts:

1. Who watches the watchers? – more on peer review
2. Does peer review help medicine?
3. More criticism on peer review
4. Good teachers beget more good teachers
5. Does peer review work?

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