HOUSTON (CN) – A Texas hospital system defamed a heart surgeon and ruined his practice by sharing skewed mortality data with his colleagues, a state appeals court ruled Thursday, upholding a $6 million jury award.
Dr. Miguel Gomez sued Memorial Hermann Health System in 2012 in Harris County District Court, seeking punitive damages for business disparagement, defamation, tortious interference and restraint of trade.
Gomez said in the lawsuit that after he told Memorial Hermann’s then-CEO Keith Alexander he was concerned about the declining patient care at its hospital in Memorial City, a Houston business district, and threatened to move his practice to The Methodist Hospital, Alexander destroyed his reputation.
Gomez started practicing at the hospital in Memorial City in 1998 and his success with robotic heart surgeries earned him the respect of colleagues.
His wife Jennifer Gomez testified in 2017, in a three-month trial, that during Gomez’s first 11 years as a heart surgeon, “He loved his work. He really loved his job.” He loved it so much Jennifer saw his career as a “gift from God,” she said.
But his reputation took a major hit in 2009 after Memorial Hermann, pushed by federal government efforts to improve hospital transparency, launched a program to scrutinize its doctors’ patient outcomes.
It hired Byron Auzenne to lead its heart service and made him the point man on reviewing heart doctors’ mortality rates, according to the case record, as recounted in Thursday’s order written by Texas First Court of Appeals Judge Evelyn Keyes.
The Society of Thoracic Surgeons compiles a database that’s the national benchmark for heart surgeon quality assessment, according to the National Center for Biotechnology Information. It adjusts heart surgeon’s mortality rates based on seven “risk-adjusted procedures,” such as if the patient has suffered a major stroke, has an infection, kidney failure, or is obese.
Gomez testified that his partner at the time, Dr. Don Gibson, told him in September 2009 that Memorial Hermann’s data showed Gomez had a high mortality rate and it was concerned the government would shut down the cardiovascular department.
He said Gibson told him “because of those reasons you’re going to be suspended or you’re going to be proctored” – monitored by other doctors during surgery, according to the ruling.
Gomez testified that conversation left him in a state of shock. But he attributed the high mortality rate to the hospital’s use of raw data, which he told Auzenne was invalid because it was not risk-adjusted.
Dr. Rick Ngo, chair of the hospital’s surgical peer review committee, testified that after a months-long review of the data his committee found there was no need to suspend the privileges of any of the hospital’s four heart surgeons, or for any proctoring.
Ngo said he also told Auzenne to stop using flawed data that did not adjust for risk on a patient-by-patient basis.
Gomez said on the witness stand he thought his name had been cleared, but hospital administrators again cited misleading data at a meeting in November 2011.
The doctor said Auzenne told him after the November meeting that he and CEO Alexander had decided the “data needed to be shared, that we needed to be a transparent organization, that this was a safety issue,” and he had shown the data to other physicians who referred patients to Gomez so they could make informed decisions.
In its appeal of the $6 million jury verdict, Memorial Hermann argued it had not defamed Gomez because it had not published Auzenne’s statement to him.
Judge Keyes disagreed.
“We conclude that there was evidence that MHHS, through Auzenne, published the individual surgeon mortality data by presenting it to other doctors, who were capable of understanding its defamatory import,” she wrote in a 67-page ruling joined by Judge Russell Lloyd.
The hospital system also argued that Gomez had not proven the data caused his referrals to drop off, as no doctors had testified they had stopped referring patients to him due to concerns about his reputation.
But Judge Keyes credited a study done by Gomez’s damages expert Lara Carter, a forensic accountant. Carter testified there was a noticeable decline in Gomez’s patients from 2009 to 2010 that continued for years, and his practice never recovered, the ruling states.
Memorial Hermann’s counsel said Gomez now enjoys a good reputation and some doctors still refer patients to him, but Keyes said that argument is misleading.
“The jury was entitled to credit the numerous witnesses who testified that other doctors came to believe that Gomez was a bad surgeon with high mortality rates,” she wrote.
The jury award included $365,000 for past mental anguish. Keyes said there was ample evidence to uphold that award, relying on testimony from Gomez’s wife.
Jennifer Gomez said the data portraying her husband as a bad doctor left him feeling like he “has this huge scarlet letter on him.” She said he stopped eating, started pacing incessantly in their home and became an insomniac.
She testified Gomez “just stuffed it all inside and went and crawled in a hole,” and she recalled him saying, “I don’t think I’m going to operate anymore,” the order states.
Gomez’s attorney Michael Doyle praised the court for addressing all of Memorial Hermann’s claims.
“With as many arguments as Memorial Hermann tossed out it was great to see how carefully the court of appeals rejected every single one of them,” he said.
Memorial Hermann said in a statement to Courthouse News it stands by its physician evaluation process and is considering an appeal.
“While we have the utmost respect for the judicial process, Memorial Hermann is disappointed with the court’s ruling. At trial, Dr. Gomez questioned the System’s quality review process, expressing concerns that he was unfairly targeted because his mortality data was misleading and made him look bad.
“However, our focus on quality data has never been about singling out one specific physician or physicians; rather we rely on that data to form the basis for our process, the same process widely accepted and utilized nationwide, to evaluate the quality of care provided by our physician partners. We had hoped the court would recognize this important distinction.
It continued: “The purpose of reviewing quality data was not to hurt Dr. Gomez but to improve patient safety, which it did and continues to do today and, going forward, the System will continue to take the steps necessary to ensure our patients are receiving the safest care possible. This ruling will not change that. We continue to believe in the merits of our case, and we are evaluating our options for further judicial review.”