Editor's note: This article by Tony Mira, president and CEO of Anesthesia Business Consultants, an anesthesia & pain management billing and practice management services company, originally appeared in Anesthesia Business Consultants eAlerts, a free electronic newsletter. Sign-up to receive this newsletter by clicking here.
When Physicians Must, and Must Not, Say Something Negative About Each Other
Two recent court decisions combine to offer anesthesiologists an important warning about expressing their opinions regarding colleagues. In certain circumstances, if an anesthesiologist knows that a colleague poses a risk to patient safety, he or she may have an affirmative duty to say so. In other situations, stating on the record that there is something wrong with another physician may amount to defamation.
1. The Duty Not to Mislead Regarding a Colleague's Substance Abuse
Asked about a former staff member by a prospective employer, the previous employer will usually follow the standard practice of simply confirming the staff member's dates of employment. Unflattering comments may lead to a lawsuit for defamation and/or tortious interference with a contract. Indeed, concern about the possibility of being sued for libel was given as one of the reasons why the defendant hospital in Kadlec Medical Center v. Lakeview Anesthesia Associates,1 (527 F.3d 412 (2008)), did no more than give the respective dates on which the anesthesiologist at the center of the ligitation ("Dr. A.") had received and resigned his privileges.
The anesthesia group fired Dr. B. for using narcotics on the job and putting patients at "significant risk." Lakeview Regional Medical Center, the hospital where the group held an exclusive contract, was aware of the problem; the CEO had instructed the Chief Nursing Officer to inform administration should Dr. B. try to return to the hospital. When, within a month after the surrender of Dr. B.'s privileges, Lakeview received a credentialing inquiry from Kadlec Medical Center in Washington State, it responded giving just the dates during which Dr. B. had been on the medical staff without mentioning the evidence of Dr. B.'s impairment. Lakeview's letter justified the lack of more extensive information on the grounds on the large volume of inquiries received.
About a year into his affiliation with Kadlec Medical Center, Dr. B. administered anesthesia for a tubal ligation to a healthy young woman who suffered massive brain damage during the procedure and remained in a permanent vegetative state. It turned out that Dr. B. had been regularly using Demerol that he withdrew from the Pyxis machine. The patient's family sued Kadlec and Dr. B., and the case was settled for the limits of each defendant's insurance coverage — $7.5 million and $1 million respectively.
In an unusual sequel, Kadlec Medical Center turned around and sued Lakeview Regional Medical Center and the anesthesia group in federal district court in Louisiana to recuperate its by then $8.2 million in costs. The district court ruled that Lakeview had breached its duty not to mislead Kadlec when the latter hospital requested credentialing information. The Fifth Circuit Court of Appeals reversed, however, finding that Lakeview's letter about Dr. B.'s credentialing was technically not misinformation and that there was no affirmative duty to disclose negative information about Dr. B. under Louisiana law. The court did suggest that if the hospital letter-writer had known about problems with Dr. B., the hospital might have had a "more difficult" time getting dropped from the suit. The court also expressed its view that the hospital had an ethical, if not a legal, obligation to disclose what it knew about Dr. B.'s substance abuse.
The two Louisiana Anesthesia Associates physicians who had written favorable letters regarding Dr. B. a few months after signing his notice of discharge were in a different situation. The Fifth Circuit affirmed the judgment of the lower court that these defendants had violated the obligation not to affirmatively mislead Dr. B.'s new hospital.
One of the two letters of recommendation stated: "This is a letter of recommendation for Dr. B. I have worked with him here at Lakeview Regional Medical Center [sic] for four years. He is an excellent anesthesiologist. He is capable in all fields of anesthesia including OB, peds, C.V. and all regional blocks. I recommend him highly." The second letter, signed by the chief of the anesthesiology department at Lakeview Medical and a member of Lakeview Medical's medical executive committee, read: "I have worked closely with Dr. B. for the past four years. He is an excellent clinician with a pleasant personality. I am sure he will be an asset to your Anesthesia service. Thank you."
While not every misstatement warrants the imposition of liability, the Fifth Circuit noted that here the "defendants were recommending an anesthesiologist, who held the lives of patients in his hands every day." Thus, once they volunteered to write, they had a duty not to mislead the letter recipients "into thinking that Dr. B. was an 'excellent' anesthesiologist", when they had information that he was a drug addict.2
The cost of the Louisiana Anesthesia Associates defendants having written their glowing letters of recommendation? Originally set by the jury at 25 percent of the $8.2 million damage award, the physicians' share could have been higher once the case was remanded to the lower court to determine whether it was necessary to recalculate apportionment after Lakeview was dismissed from the case.
The lesson is clear, at least when it comes to describing a colleague as "excellent" when you have fired him for diverting narcotics from the Pyxis machine to his own use. Hospitals may be losing the putative protection of a "dates-of-service" response to a credentialing request – see the very thoughtful trend analysis by Sanford – but physicians do not have any obligation to warn of a peer's inadequacy. The latter principle changes, however, when physicians affirmatively mislead third parties about a colleague's fitness to practice. Certainly "fitness" may be very subjective, but at a minimum, actual knowledge of a current substance abuse problem should be considered reportable, given the potential for patient endangerment. The law protecting peer review both immunizes and requires them to disclose the information necessary for patient safety.
2. Don't Call a Colleague a Liar
You cannot be held liable for defamation if the statement you made is factual, and normally you can't get into defamation trouble for merely expressing a negative opinion about someone.
Defamation lawsuits are rare, and rarer still are those that do not settle out of court. One exception is the recent litigation in Variyam v. Hancock., (Tex.App. NO. 07-09-0277-CV, 06-16-2011), in which the line between fact and opinion seems rather blurry.
Dr. V. was the chief of gastroenterology at Texas Tech University Medical Center in Lubbock. In January 2006 he wrote a letter to Dr. H. alleging that Dr. H. had disregarded patient care. Dr. H. responded with a letter of resignation containing the following:
Please find a copy of letter from Dr V. letter (sic) which I received today. Due to Dr V.'s reputation for lack of veracity, a majority of my communications and interactions is (sic) recorded or witnessed and subsequently verified as in this case.
My telephone conversation was over the speakerphone and witnessed by a third party who will dispute Dr. V.'s position. The interaction by and through the Department of Internal Medicine this morning is again refutable.
Dr V. deals in half truths, which legally is the same as a lie.
It is Dr. V.'s ethical behavior that should be challenged.
Dr. H. sent copies of his letter to the dean of the school of medicine, the department chairs, and the Accreditation Council for Graduate Medical Education (ACGME). The ACGME had closed the university's GI fellowship program, which Dr. V. headed, the year before, and Dr. V. was trying to convince the ACGME to reinstate the program.
In his lawsuit, Dr. V. requested damages for loss of past and future income as well as damages for injury to his reputation and mental anguish. He was awarded $181,000, despite Dr. H.'s assertion of truth (that Dr. V. had a reputation for deceit) as an affirmative defense.
The details of this very personal fight, and the court's exploration of the extent of "mental anguish" and "malice," are less important than the idea that calling someone a liar may be defamatory and may give rise to unintended consequences. There are two legal points to bear in mind:
- Stating that someone is a liar in writing (libel) is more dangerous than stating it orally (slander).
- Even "opinions" may be defamatory "if they clearly imply the existence of undisclosed facts that the person engaged in conduct which would adversely reflect on his reputation."
The take-home message here is simple: watch your temper, and give yourself a cooling off period before writing and sending an angry letter.
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1Kadlec Med. Ctr. v. Lakeview Anesthesia Assocs., No. Civ.A 04-0997, 2005 WL 1309153 (E.D. La. May 19, 2005), aff'd in part, rev'd in part, remanded, 527 F.3d 412 (5th Cir. 2008), cert. denied, 129 S. Ct. 631 (Dec. 1, 2008).
2Sallie T. Sanford, Candor After Kadlec: Why, Despite The Fifth Circuit's Decision, Hospitals Should Anticipate An Expanded Obligation To Disclose Risky Physician Behavior. 1 DREXEL L. REV. 383, 406 (2009).