were allegedly geared toward creat- ing the image that patients were more likely to die in Dr. Gomez’s care as compared with other Memorial Her- mann surgeons and that he was an in- competent physician. Dr. Gomez says hospital officials confronted him with the distorted data in late 2009. The suit claims the defendants met
with Dr. Gomez and gave him the op- tion of either suspending his practice or agreeing to “active interventional monitoring under Defendants’ super- vision.” But Memorial Hermann’s own peer
review committee intervened, looked at the data, and determined that it
“could not be relied upon for any le- gitimate purpose,” court documents state. After the peer review commit- tee weighed in, Dr. Gomez believed the matter had been closed. But Dr. Gomez alleges in court fil-
“As a doctor, all you have is your reputation. And once that’s been damaged, however unfair- ly, it’s hard to change perceptions.”
ings that the defendants then began their whisper campaign against him, including “selective and improper dis- semination of both the manipulated data and other misinformation within the medical community.” He didn’t find out about the whis-
per campaign until after the Novem- ber 2011 meeting. “I thought it was put to rest,” Dr.
Gomez said. “And to find out that this was still going on, and that this was being shown to everybody, and that everybody was thinking this was STS- valid data was very disheartening.” Dr. Gomez resigned his privileges
at Memorial Hermann in February 2012 and filed suit the following Sep- tember.
Michael Patrick Doyle, an attorney
for Dr. Gomez, said the defendants responded to the suit with general denials.
EXCEPTION TO CONFIDENTIALITY In the 1987 Texas Legislature, TMA supported House Bill 2560, which provides for the exception to peer review record confidentiality that now exists in the state’s occupations code. A relevant peer review record
66 TEXAS MEDICINE August 2015
is not confidential, the code states, if a judge makes a preliminary finding that a peer review communication is
“relevant to an anticompetitive action.” Memorial Hermann fought against
being compelled to produce the docu- ments Dr. Gomez sought. The hospi- tal claimed that in using the anticom- petitive exception, Dr. Gomez had to provide evidence of harm not just to himself and his practice, but to “com- petition as a whole.” Its filings said Dr. Gomez’s allegations did not indicate he had suffered the sort of injuries that “antitrust” laws were intended to prevent. “The actions taken against one phy-
sician by one health care provider, as a matter of law, cannot rise to the level of an anticompetitive action,” Memo- rial Hermann asserted. The trial court issued an order compelling the hospital to produce certain documents under the “anti- competitive” exception, while deny- ing the request for the release of other documents. Memorial Hermann sought re-
view of that decision in the 1st Court of Appeals, but the court turned the hospital down, leading it to ask the Supreme Court for review. In its petition to the high court,
Memorial Hermann claimed the anti- competitive exception didn’t apply in Dr. Gomez’s case because his allega- tions failed to assert an antitrust claim. Dr. Gomez’s response to Memorial
Hermann’s Supreme Court petition drew a distinction between the “anti- trust claim” the hospital system said Dr. Gomez needed to make and an
“anticompetitive action.” TMA’s brief supported Dr. Gomez’s
belief he should be able to see the re- cords under the “anticompetitive ac- tion” exception, saying that legislative history and the public policy behind the exception were on Dr. Gomez’s side. Noting that TMA has a “lengthy
and consistent record” of strongly supporting peer review protections, the brief said that although maintain-
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