BY Colleen T. Byrom and Beth Anne Jackson, Brown & Fortunato
On April 22, 2022, the Supreme Court of Texas ended a long-standing court battle between a cardiovascular surgeon and a Houston-area hospital system. The Court’s unanimous decision in Memorial Herman Health System v. Miguel A. Gomez, III, M.D. and Miguel A. Gomez, M.D., P.A., overturned a more than $6.3 million jury award made in favor of the surgeon’s defamation and business disparagement claims against the hospital system.
Dr. Gomez initially sued Memorial Hermann Health System(the “System”), alleging that the System defamed and disparaged Gomez’s reputation by conducting a “whisper campaign” against him. Specifically, the case centered around the System’s use of a mortality rate data set regarding Gomez’s surgeries and two statements made by System employees.
From 1998 to 2012, Gomez practiced at the System’s Memorial City campus. During his tenure there, the System changed how it reviewed surgeons’ performance by adopting and utilizing a raw data system that measured individual physicians’ patient mortality rates. Gomez disagreed with the use of this data because he did not believe that it accurately measured a surgeon’s performance. While Gomez was in discussions to move his practice to a nearby rival hospital, a System employee, Jennifer Todd, disclosed to an employee at a newly opening rival hospital (“Methodist West”) that, with regards to Gomez, she “heard bad quality, high mortality rates, unnecessary surgeries.” Gomez also alleged that System employee Byron Auzenne said to Gomez that the patient mortality data needed to be shared, was necessary for patient safety, and was shown (and would be shown) to other physicians, including to Gomez’s referring physicians. This allegedly occurred after the System’s peer review and surgical performance improvement committee had done a case-by-case review of the original data and found “no quality-of-care issues among the cardiovascular surgeons, including Gomez.”
Gomez further alleged that through this “whisper campaign” and the sharing of Gomez’s patient mortality data, the System injured both Gomez’s reputation and caused a decrease in physician referrals to his practice.
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During the lower court’s proceeding, the trial court instructed the jury to determine whether Todd’s and Auzenne’s quoted statements were false and defamed Gomez. The jury found in favor of Gomez and awarded him over $6.3 million in damages. The System appealed the jury’s verdict, arguing that the jury misinterpreted the meaning of the use of “statement” within the jury charge. It argued that the question to the jury was whether Auzenne’s quoted statement was published and whether Todd’s quoted statement caused harm to Gomez. Gomez argued that the jury was questioned whether the data referred to in Auzenne’s statement was published and whether Todd’s statement was part of the “whisper campaign” that caused harm to Gomez. The court of appeals affirmed the jury’s verdict and determined that evidence within the record supported the jury’s interpretation of the charge.
However, the Texas Supreme Court disagreed with the court of appeals and overturned the jury award. In an opinion written by Justice Hecht, the Court first focused on Auzenne’s quoted statement within the jury charge and whether the jury’s interpretation was reasonable in light of the “plain, commonsense meaning” of the jury charge. The Court pointed out that the jury was instructed to answer questions “with respect to” Auzenne’s quoted statement. The Court determined then that a reasonable juror would interpret the charge to be about Auzenne’s quoted statement as a whole, not the mortality data referenced within the quote.
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Next, the Court reviewed the jury charges that included Todd’s quoted statements to the rival hospital employee. A defamation charge must show that the defamed individual suffered an actual injury due to the defamatory statements. The Court determined that there was no evidence supporting the assertion that Todd’s statements caused injury to Gomez’s reputation. The Court pointed out that Todd’s statement did not change the Methodist West employee’s opinion of Gomez because she was already aware of the subject matter of Todd’s allegations against Gomez. Gomez also did not experience a loss because in the end, Methodist West hired Gomez in a leadership role. The Court also found that there was no evidence supporting a connection between Todd’s statement and a decrease in physician referrals to Gomez.
While the Court’s opinion focused on the interpretation of a jury charge, this case brings to light an important lesson on the use and dissemination of raw data in the name of transparency and safety: data is just data. Without risk adjustment, data can present “a flawed picture” of a surgeon’s performance and quality of care. Assessing the validity and utility of data with peer review of the underlying cases, and heeding the results of that peer review, are warranted.
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