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Hospital system presses Texas Supreme Court to nix doctor’s $6M award

Comparing a hospital operator’s efforts to refute a heart surgeon’s defamation claims to “trying to nail Jell-O to a wall,” its attorney said there’s no evidence the supposedly defamatory statements caused a drop-off in the surgeon’s referrals.

(CN) — A hospital system urged the Texas Supreme Court on Thursday to toss a $6 million jury verdict won by a surgeon and his physician association based on statements the system’s employees made about his patients’ deaths.

Dr. Miguel Gomez started practicing at Memorial Hermann Health System’s hospital in Memorial City, a Houston business district, in 1998 and developed a reputation as an excellent heart surgeon known for his innovative robotic-assisted procedures.

Memorial Hermann has deep roots and a wide reach in Greater Houston. Founded in 1907, the nonprofit health system now operates 17 hospitals, eight cancer centers and numerous rehab facilities across the region.

By the late 2000s, Memorial Hermann’s Memorial City site had become the go-to hospital in West Houston for heart procedures.

Its dominance diminished, however, when Methodist Hospital broke ground on a hospital in the same area and started recruiting from Memorial Hermann’s ranks, including Gomez.

Gomez signed an agreement with Methodist in 2009 giving him privileges at its hospital, which opened in 2010, and continued his practice at Memorial City.

Methodist contracted with Gomez despite a warning it received from Memorial Hermann employee Jennifer Todd, who told Methodist she had heard talk Gomez’s patients had high mortality rates and he was doing unnecessary surgeries.

The case hinges on Todd’s statement and another one made to Gomez by Byron Auzenne, whom Memorial Hermann hired in 2009 to lead its heart service and probe cardiologists’ concerns its heart surgeons had high mortality rates.

With his heart practice falling off, Gomez sued Memorial Hermann in 2012 in Harris County district court.

He claimed that to prevent him from taking his referrals from its hospital to Methodist’s, Memorial Hermann had shared flawed mortality data from a metric Auzenne created based on raw data that was not risk-adjusted to consider if, for example, his patients who died were smokers, very old, obese, or suffering from kidney failure.

According to the case record, after the hospital’s surgical peer review committee examined Auzenne’s data, it found there was no need to suspend the privileges of any of the hospital’s four heart surgeons.

The committee’s chair testified he told Auzenne to stop using flawed data, not adjusted for risk on a patient-by-patient basis.

Nonetheless, Gomez testified Auzenne told him in 2011 he had discussed the data with the hospital’s CEO and they felt the “data needed to be shared, that we needed to be a transparent organization, that this was a safety issue,” and he had shown them to other physicians who referred patients to Gomez so they could make informed decisions.

The jury determined the two statements had defamed Gomez and awarded him $3 million for injury to his reputation. It also found the statements constituted business disparagement of Gomez’s physician association and awarded it $3 million for lost profits.

Memorial Hermann appealed to the Texas Supreme Court after an appellate court upheld the verdict.

“This case has been a lot like trying to nail Jell-O to a wall,” the hospital system’s attorney, Constance Pfeiffer, told a six-judge panel of the high court Wednesday.

She said Gomez had failed to show the defamatory statements reached cardiologists and made them stop referring patients to him.

“We cannot defend ourselves if we don’t have specifics,” Pfeiffer said.

She argued Methodist still hired Gomez after receiving Todd’s warning, so it was not defamatory.

“Auzenne’s statement was made to Dr. Gomez and was not repeated to any other person, which fails on the element of publication to a third party,” said Pfeiffer, who is with the Houston firm Yetter Coleman.

Gomez’s counsel, Timothy Lee of the Houston firm Ware Jackson, focused his arguments on Memorial Hermann’s data analysis.

“Memorial Hermann’s administration had an interest in retaining Gomez’s patient base when it learned he was going to expand his practice to Methodist West,” Lee said.

“Every expert that testified, including Memorial Hermann’s experts, testified that [Memorial Hermann’s] metric was invalid and inaccurate. It did not show quality of care. It statistically didn’t work,” he added.

Justice Rebeca Huddle pointed out the data was “blinded,” not attached to any doctor. “How can they be defamatory if they don’t identify Gomez by name?” she asked.

Lee replied Gomez was mentioned by name as evidenced by the fact that in 2009, Gomez’s practice partner, Dr. Don Gibson, told him Memorial Hermann’s data showed he had a high mortality rate and it was concerned the government would shut down its hospital’s cardiovascular department, so Gomez was going to be suspended or proctored, monitored by other doctors during surgery.

“For a cardiovascular surgeon to have either one of those happen to him, that’s the kiss of death,” Lee said.

As Lee neared the end of his 20-minute argument allotment, Justice Jeffrey Boyd questioned his approach.

Boyd said even assuming the reliance on raw data is bad, Memorial Hermann’s argument is there’s no evidence any statement relying on that data was ever communicated to anyone in any way that ever caused Gomez damages, a loss of referrals.

“I feel like you’re arguing two completely different cases,” Boyd quipped.

Lee homed in on Auzenne’s statement in which he told Gomez he felt the data needed to be shared. “Because what he’s telling Gomez is ‘I have told the cardiologists. I have gotten the data to them because they need to make referral choices,’” Lee said.

Justice Jane Bland recused herself from the case. Justice Debra Lehrmann was absent from the hearing Wednesday.

The justices did not indicate how or when they would rule on the case.

The court currently only has eight judges because former Justice Eva Guzman resigned earlier this year to run against incumbent Ken Paxton in the March 2022 Republican primary for Texas attorney general.

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Categories / Appeals, Business, Health, Regional

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