Spring 2008 E-Newsletter

The Firm is very proud to present to you, in this edition of our newsletter, an article by senior partner, Richard ("Rick") D. Barton regarding risk issues when hospitals take corrective action to ensure patient safety. Health care is a matter that affects everyone at some time or another and patient safety is therefore of utmost importance to all of us. We also feature in this newsletter an article regarding the Firm's sponsorship and, in particular, the participation of new partner, Julian Myers, in the "Future Vision – 2008" real estate roundtable. Congratulations to Julian and Mary R. Robberson on being named partners to the Firm and to Kristin Rizzo on joining the Firm as an associate. Many thanks to Jo Ann Gambale, Kristin Rizzo and Michael Hoisington, members of the Firm who have assumed leadership roles in various sections of the San Diego County Bar Association.

As always, if you have any questions or concerns regarding the firm or our services to you, please do not hesitate to contact me directly at (619) 595-4284 or morrell@higgslaw.com.

Sincerely,

John L. Morrell,
Chairman of Higgs Fletcher & Mack

A HIGGS FLETCHER & MACK PARTNER PERSPECTIVE ON ENSURING HOSPITAL PATIENT SAFETY

Who is at Risk When Hospitals Take Corrective Action To Ensure Patient Safety?

When a hospital's Medical Staff considers corrective action with respect to a physician, concerns about litigation against the Medical Staff and individual physicians are warranted. At almost all Healthcare conferences I attend, the case of Poliner v. Texas Health Systems is offered as a cautionary tale/horror story. In Poliner, a physician successfully sued Texas Health Systems and several physicians alleging defamation, breach of contract, tortuous interference and business disparagement following his suspension from the medical staff. A jury returned a verdict in excess of $350 million for the suspended physician. In post-trial motions, the trial court reduced the award to $22 million and the matter is now on appeal.

While Poliner has justifiably raised the level of angst regarding potential liability, a review of the federal and state immunities available to Medical Staffs and individual physicians (who volunteer their time to conduct Medical Staff functions) reveals that Poliner is, indeed, a significant aberration. In fact, most appellate courts take very seriously the intent of Congress and state legislatures who uniformly extend immunity to those who undertake the very important responsibility of promoting patient safety through the peer review process.

So then, what is the basis for the protections afforded Medical Staffs and volunteer physicians? In 1986, Congress passed the Health Care Quality Improvement Act (HCQIA). The federal statutes protect peer review bodies and individual physicians who initiate a professional review action: (1) in the reasonable belief that the action was in furtherance of quality health care; (2) after a reasonable effort to obtain the facts of the matter; (3) after adequate notice and hearing procedures are afforded to the physician involved; and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain the facts and provide adequate notice and a hearing.

Most importantly, courts across the country have interpreted the federal statute as creating a presumption in favor of the Medical Staff and its participating physicians, thereby shifting the burden to the suing physician to prove by preponderance of the evidence that the professional review action did not satisfy the HCQIA standards.

Further confidence can be gained from the fact that numerous cases across the country reinforce the notion that the HCQIA immunity applies (1) no matter what cause of action is alleged by the physician -- including claims for violations of federal and state anti-trust laws; and (2) if the physician is successful at the Judicial Review Hearing level. In 2006, the United States District Court for the Middle District of Pennsylvania held that a hospital was immune from damages under HCQIA notwithstanding the physician's success at the Judicial Review Hearing.

Most appellate court cases decided under HCQIA deal with the propriety of a trial court granting or denying a motion for summary judgment by the hospital seeking immunity. Most courts have embraced the Congressional intent that these cases be subject to summary adjudication and rejected so long as there is clear evidence that the hospital's action was initiated as a result of quality of care concerns.

The Nebraska Supreme Court is illustrative. In 2005, McLeay v. Bergan Mercy Health System, the Court denied a hospital's motion for summary judgment seeking protection under HCQIA. Following its initial ruling, the Nebraska Supreme Court granted a rehearing and completely reversed its prior ruling, taking note of decisions in other jurisdictions supporting summary judgment as a means of protecting hospitals when the evidence presented clearly supports the hospital's intent to protect patients.

All of the above should not be interpreted as eliminating the concern that a medical staff may face litigation from an unhappy physician who has been the subject of corrective action. It should, however, provide some confidence that courts will seriously apply the immunity granted by Congress so long as the hospital is acting on behalf of its patients in promoting quality health care. Given the importance of patient safety, the trend in these reported cases should help support an environment in which Medical Staffs can appropriately focus on the issue of ensuring patient safety.

ANNOUNCEMENTS

IN THE COMMUNITY

NEW PARTNERS

Congratulations to new partner Mary R. Robberson
Mary Robberson was named partner at Higgs Fletcher & Mack in January 2008. She is part of our Business Litigation and International practice groups. Mary joined the firm in 1997 after the firm of Smithers & Doody merged with Higgs. Her practice includes a wide variety of litigation and transactional matters and Mary also represents American individuals and corporate entities doing business abroad in Spanish speaking countries. We welcome Mary Robberson as a partner at Higgs Fletcher & Mack.

Congratulations to new partner Julian B. Myers
Julian Myers was named partner at Higgs Fletcher & Mack in January 2008. He is part of our Corporate Securities, International, and Real Estate practice groups. Julian joined Higgs in 2002 and is licensed to practice law in Mexico and the United States. His practice includes cross-border business, real estate and corporate law giving him the opportunity to interact with important members of the international business community. We welcome Julian Myers as a partner at Higgs Fletcher & Mack.

NEW ASSOCIATES

Welcome new associate Kristin E. Rizzo
Kristin Rizzo joined Higgs Fletcher and Mack in October 2007. Prior to joining Higgs, Kristin worked at the San Diego law firm of Hosey & Bahrambeygui where she practiced in the areas of general civil litigation and employment/labor law. Ms. Rizzo is fluent in Spanish and is licensed in the State Court of California and the United States District Court, Southern District of California. We are proud to have her as part of our Health Care practice group.

BAR ASSOCIATION LEADERSHIP ROLES

Congratulations Jo Ann Gambale
Jo Ann Gambale was elected co-chair of the Taxation Law Section of the San Diego County Bar Association for the 2008 and 2009 term. Ms. Gambale is part of the Firm's Corporate Securities, Tax and Trusts and Estates practice groups.

Congratulations to Kristin E. Rizzo
Kristin E. Rizzo was elected to the Board of Directors for the Young and New Lawyers Division of the San Diego County Bar Association. She will serve as the chair of the Continuing Legal Education Committee for 2007 and 2008. Ms. Rizzo is part of the Firm's Health Care practice group.

Congratulations to Michael J. Hoisington
Michael J. Hoisington was elected co-chair of the Entertainment and Sports Law Section of the San Diego County Bar Association for 2008. Mr. Hoisington is part of the Firm's Intellectual Property practice group.