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In a ruling that bolsters the immunity provided to hospitals under the Health Care Quality Improvement Act for actions taken against doctors in peer-review processes, a federal appeals court has upheld the dismissal of damage claims brought by an ophthalmologist who said he was illegally stripped of staff privileges because the hospital wanted to protect another doctor from competition. The decision by a unanimous three-judge panel in Gordon v. Lewistown Hospital is legally significant because the court refused to adopt a “heightened standard” for providing HCQIA immunity to a professional review action premised on physician conduct rather than competence. The plaintiff, Alan D. Gordon, argued that the lower court was too quick to apply HCQIA immunity despite the fact that his medical competence was never at issue, and the decision to strip him of his privileges was premised solely on his allegedly disruptive conduct. In reality, Gordon argued, his conduct was protected by an exception to HCQIA immunity that allows doctors to engage in “solicitation” efforts. But U.S. Circuit Judge D. Michael Fisher found that the statutory language establishing HCQIA immunity must be read broadly. Fisher, in an opinion joined by U.S. Circuit Judge Samuel A. Alito Jr. and Thomas L. Ambro, found that Gordon was disciplined for violating hospital rules that prohibited him from calling another doctor’s patients and disparaging that doctor’s techniques. “Gordon’s attempts to couch his telephone calls to � fit within the parameters of the solicitation exception are disingenuous based on the extensive record before this court chronicling Gordon’s continued inappropriate conduct undertaken to advance his personal agenda to the detriment of patient welfare,” Fisher wrote. “To hold otherwise � would effectively chill effective peer review by permitting the subject of the peer review process to control the application of HCQIA immunity by couching his or her intentions to fit within the solicitation exception to professional review action.” The ruling is a victory for attorneys Jonathan B. Sprague of Post & Schell in Philadelphia, and Susan M. Lapenta of Horty Springer & Mattern in Pittsburgh. The 47-page opinion upholds a series of decisions by Senior U.S. District Judge Sylvia H. Rambo of the Middle District of Pennsylvania in a long-running dispute between Gordon and the only hospital serving Mifflin and Juniata counties. In the suit, Gordon and his lawyers alleged a series of antitrust claims and set out to prove that Lewistown Hospital’s decision to strip him of staff privileges was motivated by a desire to drive Gordon out of business and to protect Paul Nancollas, Gordon’s main competitor in the market for cataract and other eye surgery. The hospital’s motive, Gordon claimed, was to placate Nancollas and his employer, the Geisinger Group, a group of physicians associated with the Geisinger Corp. who had become incensed by Gordon’s comparative advertising campaign. The suit said Geisinger physicians accounted for nearly 17 percent of the hospital’s total net patient revenue — the largest single private managed care payer of the hospital’s reimbursement charges — and that Geisinger was also the largest lessee of space at the hospital’s Medical Office Building, paying more than $400,000 per year for its space. At the heart of the dispute was Gordon’s claim that his procedure for performing cataract surgery was more modern and safer than Nancollas’ method. Gordon performed cataract surgery using a phacoemulsification procedure, or “phaco,” which involved making only a small incision in the cornea (which prevented bleeding) and used only topical anesthesia. He claimed the procedure led to a rapid improvement in vision, with patients generally recovering in two weeks. Nancollas used the extracapsular extraction surgical technique, or ECCE — a procedure that Gordon claims was twice as expensive, involved a larger incision and use of sutures, and required an anesthetic to be injected into the back of the eye. Recovery from ECCE, Gordon claimed, could extend up to three months. At first, Gordon and Nancollas waged their competitive battle in the media. Both placed newspaper ads regarding their surgical practices in the Lewistown Sentinel and in other publications. But the competition for patients soon led to a series of complaints by Nancollas against Gordon that, in turn, led to professional review hearings. When Nancollas placed an ad that said he performed “modern cataract extraction,” Gordon claimed he perceived it to be false advertising and that he responded with an ad comparing himself to Nancollas and urging readers to call the hospital for information comparing the two doctors’ “complication rates.” Another ad placed by Gordon compared the two procedures, was critical of the “Geisinger ophthalmologist” and suggested that all of the anesthesiologists at the hospital preferred Gordon’s anesthetic technique to Nancollas’. Gordon was not disciplined for either of those ads, but was warned by the hospital that it considered his tone adversarial and unprofessional. But the dispute soon grew more heated when Gordon began directly contacting Nancollas’ patients. In 1995, court records show, the hospital received complaints from elderly patients of Nancollas who said Gordon had telephoned them and made disparaging comments about Nancollas. Despite a warning from the hospital’s lawyer that additional complaints would trigger an investigation of Gordon’s conduct, court records show that Gordon continued to make “harassing telephone calls” to Nancollas’ patients. Gordon was hit with a 45-day suspension after a hearing at the hospital in which he was found to have engaged in “unacceptable and disruptive” behavior, and that, whether his concerns were real or perceived, he had addressed them inappropriately. The hearing officer concluded that Gordon’s calls to Nancollas’ patients “showed extremely poor judgment and cruelty toward patients,” according to court records. After the suspension, Gordon’s privileges were reinstated, but only after he agreed to 17 “conditions,” including promising not to make calls to Nancollas’ patients. Ultimately, Gordon was permanently stripped of his privileges after the hospital concluded that he had violated the conditions, including one incident in which Gordon called an 82-year-old woman who had previously been Gordon’s patient but had switched to Nancollas. In that call, court records show, Gordon discussed the differences in the two doctors’ procedures; conveyed his personal animus for Nancollas, indicating that Nancollas was “just learning;” and listed the unnecessary risks that she faced in having Nancollas remove her cataract. Gordon also allegedly told her that she had been misled and uninformed because Nancollas “sometimes doesn’t tell the whole story.” In a suit challenging the hospital’s decision, Gordon alleged a series of antitrust claims. He alleged that the conditions governing his reappointment to the staff amounted to a “restraint of trade” because they prevented him from competing to retain or obtain business by providing information to patients. The suit also alleged that the hospital illegally “tied” its outpatient cataract facility services to the purchase of ophthalmic services from a Geisinger physician, and that the hospital and Geisinger entered into a “reciprocal arrangement” whereby Geisinger leased space from the hospital on condition that the hospital procure substantially all of its physician specialty services, including ophthalmology, from Geisinger. The hospital was also accused of engaging in a “group boycott” to exclude Gordon from the outpatient cataract surgery market, as well as “attempted monopolization” and an “exclusive dealing” arrangement. Prior to trial, Rambo dismissed some of the claims and then held a nonjury trial on Gordon’s remaining antitrust claims. In a 103-page decision announcing her verdict, Rambo flatly rejected all of Gordon’s claims, concluding instead that he lost his privileges only after he was disciplined and suspended twice for repeated instances of unprofessional conduct, including calling Nancollas’ patients at home and harassing them for choosing him as their doctor, sometimes ridiculing Nancollas’ abilities. Although Gordon complained that the hospital had succeeded in its antitrust violations by securing all of the ophthalmology business for Geisinger, Rambo found that Gordon had no convincing evidence to back up his motive theory. “The disparate threads of circumstantial evidence to which Dr. Gordon points cannot be woven into a blanket conspiracy,” Rambo wrote. Rambo also found that the conditions imposed by the hospital after the suspension did not prohibit Gordon from advertising. Instead, she found, the conditions — which Gordon agreed to and signed — merely prohibited him from calling any other physician’s patients “for the purpose of commenting about the physician or his surgical method.” The hospital wasn’t illegally restraining trade, Rambo found, because Gordon was not prohibited from advertising the benefits of his surgical method or the increased risks of Nancollas’ methods if he did not mention Nancollas by name. In a second condition, Gordon was warned that he “must use appropriate administrative channels to register any complaint or concern that you might have about others practicing at the hospital.” The hospital said Gordon violated the second condition by mailing a letter to 30 people that included a lengthy critique of Nancollas’ techniques. Soon after it was sent, Gordon’s staff privileges were permanently revoked. In a scathing section of the opinion, Rambo declared that Gordon lacked credibility as a witness and “cannot be trusted” in his accounts of the dispute because of his “desire to ruin the hospital by dragging it through protracted and expensive litigation.” In the harshest passage, Rambo wrote: “Dr. Gordon has a personal problem with the hospital and the way he feels they have treated him. As a result, he has demonstrated a willingness to lie about his disciplinary history with the hospital, a desire to cause the hospital to fail financially, and a need to disrupt the hospital’s operation when the opportunity presents itself.” Now the 3rd Circuit has upheld all of Rambo’s rulings, including her pretrial decision that the hospital was entitled to immunity from damages under HCQIA. “Other courts similarly have applied immunity in circumstances where a physician’s unprofessional ‘conduct’ was an issue in the challenged professional review actions,” Fisher wrote. “Gordon simply cannot escape the ramifications of his conduct by relying on a tortured construction of the statute that ignores the fact that, at all levels of the process, his conduct was found to adversely impact patient health or welfare.” Gordon’s lawyer, Steven B. Varick of Holland & Knight in Chicago, could not be reached for comment on the decision.

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