Chudacoff v. University Medical Center Of Southern Nevada et al, No. 2:2008cv00863 - Document 106 (D. Nev. 2009)

Court Description: ORDER Granting 86 Motion for Partial Summary Judgment. Denying 85 Motion for Preliminary Injuction. Signed by Judge Edward C. Reed, Jr. (Copies have been distributed pursuant to the NEF - AXM)
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Chudacoff v. University Medical Center Of Southern Nevada et al Doc. 106 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 5 6 7 RICHARD M. CHUDACOFF, M.D., 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ) ) Plaintiff, ) ) vs. ) ) ) UNIVERSITY MEDICAL CENTER OF ) SOUTHERN NEVADA, a political ) subdivision of Clark County, ) State of Nevada, COUNTY ) COMMISSIONERS BRUCE L. WOODBURY, ) TOM COLLINS, CHIP MAXFIELD, ) LAWRENCE WEEKLY, CHRIS ) GIUNCHIGLIANI, SUSAN BRAGER, ) AND RORY REID, ) KATHLEEN SILVER, an individual, ) THE MEDICAL AND DENTAL STAFF OF ) THE UNIVERSITY MEDICAL CENTER OF ) SOUTHERN NEVADA, an independent ) subdivision of University Medical ) Center of Southern Nevada, JOHN ) ELLERTON, M.D., an individual, ) MARVIN J. BERNSTEIN, M.D., an ) individual, DALE CARRISON, M.D., ) an individual, DONALD ROBERTS, ) M.D., an individual, DOE ) Defendants 1 through X, inclusive; ) and ROE Corporations, A through Z, ) inclusive, ) ) Defendants. ) ) ) 2:08-CV-863-ECR-RJJ ORDER 24 25 This case arises out the suspension of a physician’s medical 26 staff privileges with the University Medical Center of Southern 27 Nevada. Two motions are presently pending before the Court. 28 1 First is the plaintiff’s Motion for TRO and Preliminary 2 Injunction (#85), which was filed on January 9, 2009. The Court 3 denied (#87) the motion (#85) to the extent that it sought a TRO and 4 stated that it would treat the motion (#85) solely as one for 5 preliminary injunction. The defendants in this action fall into two 6 groups; one group of the defendants, but not the other, filed an 7 Opposition (#92) to the motion (#85) on January 26, 2009. The 8 plaintiff filed a Reply (#99) on January 30, 2009. 9 Next is the plaintiff’s Motion for Partial Summary Judgment 10 (#86), which the plaintiff also filed on January 9, 2009. Again, 11 the first group of defendants filed an Opposition (#93) to the 12 motion on January 26, 2009. This time, however, the other group of 13 defendants filed a joinder (#94) to the opposition (#93). The 14 plaintiff filed a Reply (#97) on January 28, 2009. 15 The motions are ripe, and we now rule on them. 16 17 18 I. Factual Background Plaintiff Dr. Richard Chudacoff (or “Chudacoff”), a physician 19 who specializes in the practice of Obstetrics and Gynecology, had 20 medical privileges to work at several local hospitals in the Las 21 Vegas area, including University Medical Center of Southern Nevada 22 (or “UMC”). 23 (#82).) (P.’s Second Amended Complaint (“SAC”) ¶¶ 17, 18, & 24 In 2007, Chudacoff was appointed to the position of 24 Assistant Professor with the University of Nevada School of 25 Medicine, and on December 20, 2007, Chudacoff was granted staff 26 privileges at the University Medical Center of Southern Nevada in 27 the Obstetrics and Gynecology department. 28 2 (Id. ¶¶ 25, 26.) 1 Chudacoff worked at the UMC from December 20, 2007, through May 2 28, 2008. (Id. ¶ 27.) 3 resident physicians. Part of Chudacoff’s work involved overseeing Chudacoff thought that the residents’ skills 4 were substantially below the skill level of other residents that he 5 had supervised previously in his career at a different medical 6 school. 7 (Id. ¶¶ 28, 29.) To address these concerns, on April 16, 2008, Chudacoff wrote 8 an email to Paul G. Stumpf, M.D., Professor and Chair of Obstetrics 9 and Gynecology at the University of Nevada School of Medicine, 10 regarding his “concerns over the skills of the obstetrical and 11 gynecological residents at the University Medical Center of Southern 12 Nevada.” (Id. ¶ 31.) Chudacoff made several recommendations for 13 improving the quality of care that the residents provided. 14 (Id.) On May 28, 2008, Chudacoff received a letter from Defendant 15 John Ellerton, M.D., Chief of Staff at the UMC, “in which Chudacoff 16 was told that the Medical Executive Committee . . . had suspended, 17 altered or modified his medical staff privileges.” (Id. ¶ 31.) In 18 addition, the Medical Executive Committee (or “MEC”) had ordered 19 Chudacoff to undergo drug testing and physical and mental 20 examinations. (Id.) Chudacoff alleges that he had no knowledge 21 that “the Medical Staff was considering altering or changing his 22 privileges.” 23 (Id. ¶ 32.) Chudacoff also alleges that he was advised that he was entitled 24 to a Fair Hearing in the May 28 letter; however, he was not advised 25 of the allegations presented against him. (Id. ¶ 39.) On June 2, 26 2008, Chudacoff’s insurance counsel requested a Fair Hearing. 27 ¶ 41.) 28 On June 10, 2008, Chudacoff received a letter from 3 (Id. 1 University of Nevada-Reno President Milton Glick informing Chudacoff 2 that his employment with the University of Nevada School of Medicine 3 had been terminated as a result of the suspension of Chudacoff’s 4 clinical privileges. 5 (Id. ¶ 43.) On June 16, 2008, the UMC filed a report with the National 6 Practitioner Data Bank (or “NPDB”) stating that Chudacoff’s 7 privileges had been suspended indefinitely for substandard or 8 inadequate care and substandard or inadequate skill level. 9 44.) (Id. ¶ The report to the National Practitioner Data Bank cites four 10 cases where Chudacoff caused “serious operative complications during 11 gynecological surgery,” one incident where Chudacoff failed to 12 respond to a medical emergency, and numerous complaints of 13 disruptive behavior. (Id. ¶ 45.) On June 18 and 20, 2008, 14 Chudacoff was notified by different health care facilities that his 15 privileges had been denied or revoked because of the information 16 listed on the NPDB. (Id. ¶¶ 46, 47.) On June 23, 2008, Chudacoff 17 received the Medical Record numbers for the patients involved in the 18 NPDB report. 19 (Id. ¶ 48.) Having received no response to his request for a Fair Hearing, 20 on July 2, 2008, Chudacoff filed the original complaint in this 21 case. On July 18, 2008, Chudacoff was informed that his Fair 22 Hearing was scheduled for September 11, 2008. Initial discovery 23 motions and notices of depositions were filed by the parties 24 throughout the summer. 25 While the litigation progressed, the Fair Hearing was held on 26 September 11, 2008. Prior to the hearing, on September 5, 2008, the 27 MEC disclosed its list of witnesses for the Fair Hearing, but 28 4 1 Chudacoff received no information regarding the nature of the 2 testimony that would be elicited from those witnesses. Because of 3 this delay, Chudacoff had to prepare his case for the MEC without 4 having knowledge of the allegations against him. Additionally, 5 though Chudacoff’s attorney was present at the September 11 hearing, 6 his attorney was not allowed to present evidence, question 7 witnesses, or participate in the hearing in any substantive way. 8 (Id. ¶ 54.) 9 Aside from addressing the incidents of “substandard care,” the 10 Fair Hearing Committee seemed concerned with a discrepancy in 11 Chudacoff’s original medical staff application: Chudacoff reported 12 never having an adverse action taken against him for his practice of 13 medicine. (Id. ¶ 58.) In fact, he had a negative report during his 14 time in the Navy, but that report was later revised by the District 15 Court of the District of Columbia. Chudacoff had not been informed 16 that this topic would be addressed at the hearing. 17 On October 1, 2008, the Fair Hearing Committee set forth their 18 findings and made recommendations regarding the MEC’s sanctions. 19 The Fair Hearing Committee disagreed with the suspension of 20 Chudacoff’s privileges and the requirement of direct supervision by 21 another physician. Instead, the committee recommended peer review 22 of Chudacoff’s practice. The Fair Hearing Committee agreed with 23 three of the MEC’s sanctions: (1) placing Chudacoff on a “zero 24 tolerance policy for disruptive behavior”; (2) requiring Chudacoff 25 to discuss with the Nevada Health Professionals Foundation the 26 necessity of undergoing physical and psychological evaluation; and 27 (3) requiring Chudacoff to undergo drug testing. 28 5 The Fair Hearing 1 Committee also noted that the “concern about Dr. Chudacoff’s 2 falsifying his medical staff application should be specifically 3 addressed to the MEC with appropriate action.” 4 The Fair Hearing Committee’s recommendations were forwarded to 5 the MEC for consideration at its next hearing, which was held on 6 October 28, 2008. (Id. ¶ 57.) At that hearing, at which Chudacoff 7 was present, the MEC reviewed and considered the Fair Hearing 8 Committee’s recommendations. The purpose of the hearing was to 9 address the Fair Hearing Committee’s recommendations related to 10 Chudacoff’s alleged incidents of substandard care. Nevertheless, at 11 least one of the members of the MEC focused almost exclusively on 12 Chudacoff’s alleged falsification of his medical staff application. 13 (Id. ¶ 57.) 14 Ten days after the MEC’s hearing — November 7, 2008 — the MEC 15 notified Chudacoff of its decision. The MEC adopted in part the 16 findings of the Fair Hearing Committee with respect to requiring 17 peer review of Chudacoff’s practice. (Id. ¶ 62.) In addition, the 18 MEC issued a second letter suspending Chudacoff’s privileges pending 19 revocation for “material misstatements of fact on [Chudacoff’s] 20 medical staff application for privileges.” Each letter now 21 represents a separate action taken by the MEC. 22 Pursuant to the provisions of the Fair Hearing Plan, Chudacoff 23 had thirty days — or until December 7, 2008 — to appeal his 24 suspension relating to the misstatements on the application to a 25 Fair Hearing Committee, as that decision had not yet been presented 26 to the Fair Hearing process. Once the MEC suspended Chudacoff’s 27 privileges, the MEC had the obligation to report the suspension to 28 6 1 the National Practitioner Data Bank within fifteen days — or by 2 November 22, 2008. With respect to this potential report, the Court 3 issued a preliminary injunction that prevented the defendants from 4 reporting Chudacoff to the NPDB. 5 Chudacoff requested a Fair Hearing as to the suspension related 6 to the alleged misstatements of fact on his medical staff 7 application of his privileges. On November 25, 2008, at 9:10 a.m., 8 Chudacoff’s attorney was informed that the MEC would meet at 12:30 9 p.m. that day to discuss the discrepancy in Chudacoff’s application. 10 (Id. ¶ 65.) Chudacoff presented his case; less than one hour later 11 the MEC informed him that the MEC would proceed with the suspension 12 of his privileges. 13 (Id. ¶ 68.) Also on November 25, 2008, Chudacoff timely appealed the 14 adoption of the Fair Hearing Committee’s recommendations with 15 respect to the substandard level of care issues to the Board of 16 Trustees.1 At a session in early 2009, the Board appears to have 17 sided with Chudacoff in a great number of respects. As a result of 18 the Board’s actions, the MEC must now reconsider its initial 19 decision to report Chudacoff to the NPDB for the substandard level 20 of care issue. The Board also mentioned that it may need to re- 21 write the reporting policies to ensure that a physician is afforded 22 sufficient procedural due process before being suspended. In 23 addition, the Board awarded Chudacoff $10,000 to pay for costs and 24 fees associated with the dispute. The MEC is yet to reconsider its 25 actions. 26 27 28 1 The members of the Clark County Board of Commissioners comprise the Board of Trustees. 7 1 2 II. Procedural Background Chudacoff originally filed suit (#1) on July 2, 2008, alleging 3 claims of violation of due process under the Fourteenth Amendment 4 and assorted state law claims. Chudacoff seeks declaratory and 5 injunctive relief, as well as money damages and attorney's fees. 6 All of the defendants — the University Medical Center, its 7 Commissioners, several individual physicians and others who serve on 8 administrative committees for the medical center, and every 9 physician and dentist who holds staff privileges at the medical 10 center — filed an Answer (#23) to the complaint on July 23, 2008. 11 Chudacoff filed an amended complaint #46) on September 22, 2008; the 12 defendants answered (#47) that complaint on October 2, 2008. 13 Chudacoff filed a second amended complaint (#82) on January 6, 2009, 14 to which the defendants filed answers (## 95, 96). The second 15 amended complaint varies from the original complaint in only minor 16 areas and adds an additional cause of action under the United States 17 Constitution. 18 The Court held a hearing on January 5, 2009, to consider 19 pressing motions filed by both sides. The defendants had filed an 20 Emergency Motion (#48) to Dismiss or Alternatively to Stay the 21 Instant Matter Pending Exhaustion of All Administrative Remedies and 22 Proceedings. Chudacoff had filed Emergency Motions (## 55, 57) for 23 Temporary Restraining Order/Preliminary Injunction. The defendants 24 sought to dismiss the case on the basis of immunity under the Health 25 Care Qualified Immunity Act (or “HCQIA”). We denied the defendants’ 26 motion, reasoning that it was inappropriate to resolve the HCQIA 27 matter at the motion to dismiss stage, as the issue turned on 28 8 1 questions of fact. We also granted Chudacoff’s motion for 2 preliminary injunction and enjoined the defendants from reporting 3 any negative information regarding Chudacoff’s suspension of medical 4 staff privileges as a result of his allegedly falsified application. 5 Chudacoff then sought an order requiring the defendants to 6 remove any negative information they had already reported with the 7 NPDB with respect to the alleged incidents of insufficient medical 8 care. Chudacoff argues that because his due process rights were 9 violated, the defendants should be required to remove any negative 10 information they reported about him. To this end, Chudacoff filed 11 his Emergency Motion (#85) for Temporary Restraining Order and 12 Preliminary Injunction (“P.’s Mtn. for TRO and PI”) on January 9, 13 2009. Only one group of the defendants — the medical and dental 14 staff of the UMC, John Ellerton, Marvin Bernstein, Dale Carrison, 15 and Donald Roberts — filed a response (#92) to the motion. The 16 other defendants in the action — Bruce Woodbury, Tom Collins, Chip 17 Maxfield, Lawrence Weekly, Chris Giunchigliani, Susan Brager, the 18 UMC itself, Rory Reid, and Kathleen Silver — filed nothing in 19 response to the motion (#85). 20 Additionally, Chudacoff filed a Motion (#86) for Partial 21 Summary Judgment (“P.’s Mtn. for PSJ”), arguing no genuine issues of 22 material fact existed with respect to his claim that the defendants 23 had violated his due process rights. The first group of defendants 24 filed a response (#93) to the motion, and this time, the second 25 group of defendants filed a Joinder (#94) to the response. 26 27 28 9 1 2 III. Motion for Partial Summary Judgment Chudacoff’s motion for partial summary judgment is limited to 3 whether the defendants violated his due process rights by suspending 4 his hospital privileges — and then reporting that suspension to the 5 NPDB — without notice or an opportunity to be heard. The only facts 6 relevant here concern whether Chudacoff was denied procedural due 7 process before the defendants reported him to the NPDB with respect 8 to his allegedly substandard level of care. If we find that the 9 defendants deprived Chudacoff of a protected interest without due 10 process, then we must evaluate whether the defendants are entitled 11 to immunity under the Health Care Quality Improvement Act (“HCQIA”), 12 42 U.S.C. § 11101, et. seq. 13 14 A. Standard 15 Summary judgment allows courts to avoid unnecessary trials 16 where no material factual dispute exists. N.W. Motorcycle Ass’n v. 17 United States Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). 18 The court must view the evidence and the inferences arising 19 therefrom in the light most favorable to the nonmoving party, 20 Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996), and should 21 award summary judgment where no genuine issues of material fact 22 remain in dispute and the moving party is entitled to judgment as a 23 matter of law, FED . R. CIV . P. 56(c). Judgment as a matter of law is 24 appropriate where there is no legally sufficient evidentiary basis 25 for a reasonable jury to find for the nonmoving party. 26 P. 50(a). FED . R. CIV . Where reasonable minds could differ on the material facts 27 at issue, however, summary judgment should not be granted. 28 10 Warren 1 v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 2 116 S.Ct. 1261 (1996). 3 The moving party bears the burden of informing the court of the 4 basis for its motion, together with evidence demonstrating the 5 absence of any genuine issue of material fact. 6 Catrett, 477 U.S. 317, 323 (1986). Celotex Corp. v. Once the moving party has met 7 its burden, the party opposing the motion may not rest upon mere 8 allegations or denials in the pleadings, but must set forth specific 9 facts showing that there exists a genuine issue for trial. 10 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Anderson Although the 11 parties may submit evidence in an inadmissible form - namely, 12 depositions, admissions, interrogatory answers, and affidavits 13 only evidence which might be admissible at trial may be considered 14 by a trial court in ruling on a motion for summary judgment. FED . 15 R. CIV. P. 56(c); Beyene v. Coleman Security Services, Inc., 854 16 F.2d 1179, 1181 (9th Cir. 1988). 17 In deciding whether to grant summary judgment, a court must 18 take three necessary steps: (1) it must determine whether a fact is 19 material; (2) it must determine whether there exists a genuine issue 20 for the trier of fact, as determined by the documents submitted to 21 the court; and (3) it must consider that evidence in light of the 22 appropriate standard of proof. Anderson, 477 U.S. at 248. Summary 23 Judgement is not proper if material factual issues exist for trial. 24 B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 25 1999). “As to materiality, only disputes over facts that might 26 affect the outcome of the suit under the governing law will properly 27 preclude the entry of summary judgment.” 28 11 Anderson, 477 U.S. at 248. 1 Disputes over irrelevant or unnecessary facts should not be 2 considered. Id. Where there is a complete failure of proof on an 3 essential element of the nonmoving party's case, all other facts 4 become immaterial, and the moving party is entitled to judgment as a 5 matter of law. Celotex, 477 U.S. at 323. Summary judgment is not a 6 disfavored procedural shortcut, but rather an integral part of the 7 federal rules as a whole. Id. 8 9 10 B. Procedural Due Process The Fourteenth Amendment prevents states from depriving 11 individuals of protected liberty or property interests without 12 affording those individuals procedural due process. 13 of State Colls. v. Roth, 408 U.S. 564, 569 (1972). Bd. of Regents With procedural 14 due process claims, the deprivation of the protected interest “is 15 not itself unconstitutional; what is unconstitutional is the 16 deprivation of such an interest without due process of law.” 17 Zinermon v. Burch, 494 U.S. 113, 125 (1990). Before being deprived 18 of a protected interest, a person must be afforded some kind of 19 hearing, “except for extraordinary situations where some valid 20 government interest is at stake that justifies postponing the 21 hearing until after the event.” 22 (1971). Boddie v. Conn., 401 U.S. 371, 379 In evaluating procedural due process claims, the Court must 23 engage in a two-step inquiry: (1) we must ask whether the state has 24 interfered with a protected liberty or property interest; and (2) we 25 must determine whether the procedures “attendant upon that 26 deprivation were constitutionally sufficient.” 27 28 12 Humphries v. County 1 of Los Angeles, 554 F.3d 1170, 1184-85 (9th Cir. 2009) (quoting Ky. 2 Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). 3 4 5 1. Protected Property Interest A protected liberty or property interest is one that is 6 “recognized and protected by state law.” 7 693, 710 (1976). Paul v. Davis, 424 U.S. For example, when a state issues drivers’ 8 licenses, which confer citizens the right to operate a vehicle in 9 that state, the state may not withdraw that right without affording 10 due process. 11 Id. (citing Bell v. Burson, 402 U.S. 55, 535 (1971)). Just as Nevada grants licenses to its drivers, so too does it 12 grant licenses to qualified physicians to practice medicine. In 13 Nevada, Chapter 630 of the Revised Statutes generally governs the 14 licensing of physicians in the state. See NEV . REV . STAT . §§ 15 630.003-630.411; see also Moore v. Bd. of Trustees of Carson-Tahoe 16 Hosp., 495 P.2d 605, 608 (Nev. 1972) (recognizing a “right . . . 17 subject to . . . reasonable rules and regulations” to “enjoy medical 18 staff privileges in a community hospital”). Further, the UMC’s 19 bylaws and regulations provide for extending privileges to 20 physicians to practice at the hospital provided that certain 21 requirements are met. (See Bylaws, Ex. A (#85-4); Credentialing 22 Manual, Ex. B (#85-4); Fair Hearing Plan, Ex. L (#48-5).) A 23 physician’s medical staff privileges are thus a protected interest 24 under Nevada state law. 25 Chudacoff was both a licensed physician in the state and he had 26 medical staff privileges at the UMC. The defendants have attempted 27 to revoke Chudacoff’s privileges at the UMC. 28 13 This protected 1 interest cannot be revoked without constitutionally sufficient 2 procedures. 3 4 2. Whether the Procedures Were Constitutionally Sufficient 5 Chudacoff argues that because he was not “summarily suspended,” 6 the defendants were required to follow the process for “routine 7 administrative” actions as set forth by the UMC Bylaws and its Fair 8 Hearing Plan. (P.’s Mtn. for PSJ at 12 (#86).) Chudacoff asserts 9 that the defendants did not follow these procedures and that their 10 course of action violated his due process rights. The defendants 11 contend that they followed their Bylaws and that nothing more was 12 required. 13 The amount of process that is due is a “flexible concept that 14 varies with the particular situation.” Zinermon, 494 U.S. at 127. 15 The Court tests this concept by weighing several factors: 16 17 18 19 20 First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 21 22 The private interest at stake here is the ability to practice 23 medicine at a particular location. The interest extends further, 24 however, in that a suspension of privileges at one hospital, when 25 reported to the NPDB, could limit a physician’s ability to practice 26 anywhere in the country. The amount of process must accord 27 sufficient respect for a professional’s life and livelihood. 28 14 1 Next, the risk of an erroneous deprivation is also significant, 2 as an improper suspension would have dramatic consequences for the 3 physician. Aside from the physician’s concerns, the NPDB only 4 serves as a reliable source of information if it receives accurate 5 reports; an erroneous report reduces the NPDB’s utility. As a 6 result, there are substantial benefits to having procedural 7 safeguards in place to protect both the physician and the NPDB from 8 erroneous or improper reporting. Both are best served by having the 9 safeguards in place on the front-end of the decision-making process; 10 neither is served by remedial provisions. Once the damage is done, 11 it is hard to undo. 12 Third, it is important for the state to have control over the 13 quality of care that its physicians provide. Additionally, the 14 state has an interest in insuring that it can discipline malfeasance 15 without further burdening limited state resources. 16 Given the important interests outlined above, it simply cannot 17 be that, in a typical administrative action situation, a physician 18 may have his privileges revoked without ever having a chance to 19 refute or challenge the accusations leveled against him. The MEC 20 met late in May 2008 to discuss allegations concerning Dr. 21 Chudacoff’s level of care, allegations that Dr. Chudacoff did not 22 know were being leveled against him. The MEC, under the guise of an 23 administrative action, suspended Dr. Chudacoff’s medical staff 24 privileges.2 Without ever even knowing that his privileges were in 25 26 27 28 2 It is not clear how the MEC was able to take an adverse action at this early time; the MEC likely could only “recommend” taking a certain course of action under the Fair Hearing Plan. (See Credentialing Manual, Ex. B at 78-79 (#85-4).) 15 1 jeopardy, Chudacoff was informed of the loss of his privileges on 2 May 28, 2008. The NPDB was informed of the suspension on June 16, 3 2008, well before Dr. Chudacoff ever had an opportunity to be heard 4 on the matter. The fatal flaw here is that the defendants suspended 5 Chudacoff’s staff privileges before giving him any type of notice or 6 opportunity to be heard with respect to that suspension. 7 Chudacoff’s due process rights were violated by the timing of the 8 MEC’s actions.3 9 10 C. HCQIA Immunity 11 Under the HCQIA, Congress sought to remedy the national need to 12 restrict incompetent physicians from moving from state to state 13 through effective professional peer review. 14 11101(3). See 42 U.S.C. § To alleviate concerns of lawsuits with respect to peer 15 review, Congress granted “limited immunity from suits for money 16 damages to participants in professional peer review actions.” 17 Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 632 (3d Cir. 1996); 18 Austin v. McNamara, 979 F.2d 728, 733 (9th Cir. 1992) (“HCQIA was 19 designed both to provide for effective peer review and interstate 20 monitoring of incompetent physicians and to grant qualified immunity 21 from damages for those who participate in peer review activities.”). 22 The defendants contend that Chudacoff’s allegations stem from 23 the actions taken by the MEC, through its peer review process, in 24 response to patient safety concerns, and members of the staff who 25 26 27 28 3 In light of our conclusion, we need not resolve whether his due process rights were also violated by any absence of a writing from Dr. Ellerton to the MEC, or when Dr. Chudacoff’s counsel was not allowed to present his case at the hearing. 16 1 participated in the peer review process are thus protected under the 2 immunity provisions of the HCQIA. Chudacoff responds that HCQIA 3 immunity is not a blanket grant of immunity, but is subject to 4 certain statutory requirements that were not met here. Chudacoff’s 5 chief argument is that the MEC suspended his license prior to 6 providing him with any procedural safeguards. He notes that even 7 when he was allowed to present evidence at the Fair Hearing on 8 September 11, 2008, his suspension had already been reported to the 9 National Practitioner Data Bank. 10 Under the HCQIA, if a “professional review action,” as defined 11 by the statute, meets certain due process and fairness requirements, 12 then the review participants “shall not be liable in damages . . . 13 with respect to the action.” 42 U.S.C. § 11111. The HCQIA creates 14 a rebuttable presumption of immunity, forcing the plaintiff to prove 15 that the defendants’ actions did not comply with the relevant 16 standards. 42 U.S.C. § 11112(a) (“A professional review action 17 shall be presumed to have met the preceding standards necessary for 18 . . . [immunity from damages] unless the presumption is rebutted by 19 a preponderance of the evidence.”). This rebuttable presumption 20 “creates an unusual summary judgment standard” that can be stated as 21 follows: “Might a reasonable jury, viewing the facts in the best 22 light for [the plaintiff], conclude that he has shown, by a 23 preponderance of the evidence, that the defendants’ actions are 24 outside the scope of § 11112(a)?” Bryan v. James E. Holmes Reg’l 25 Med. Ctr., 33 F.3d 1318, 1333 (11th Cir. 1994) (quoting Austin, 979 26 F.2d at 734). The plaintiff must overcome the presumption of 27 immunity by showing that the review process was not reasonable. 28 17 Id. 1 Whereas qualified immunity under § 1983 is a question of law 2 that provides immunity not merely from liability but from suit 3 altogether, Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), HCQIA 4 immunity “is immunity from damages only,” Singh v. Blue Cross/Blue 5 Shield of Mass., Inc., 308 F.3d 25, 35 (1st Cir. 2002); Decker v. 6 IHC Hosps., Inc., 982 F.2d 433, 436 (10th Cir. 1992) (holding that 7 HCQIA immunity is “immunity from liability only,” not immunity from 8 suit). HCQIA immunity does not shield a defendant from injunctive 9 relief. 10 See 42 U.S.C. § 11111(a)(1). For immunity to apply, the defendants must meet four 11 requirements. Austin, 979 F.2d at 733. First, the defendants must 12 comply with the fairness standards set forth in 42 U.S.C. § 13 11112(a). Id. Second, the defendants must provide adequate notice 14 and a hearing as provided in 42 U.S.C. § 11112(b). Id. Third, the 15 defendants must report the results of the review action to the 16 appropriate authorities in compliance with 42 U.S.C. §§ 11131-34. 17 Id. Fourth, the review action must have been commenced after the 18 effective date of the HCQIA: November 14, 1986. Id. No one 19 challenges the fourth criterion, so it need not detain us. 20 21 22 1. Fairness Elements of 42 U.S.C. § 11112(a) The fairness standards set forth in 42 U.S.C. § 11112(a) have 23 four sub-requirements. The section provides that a professional 24 review action must be taken: 25 26 (1) the (2) the in the reasonable belief that the action was in furtherance of quality health care, after a reasonable effort to obtain the facts of matter, 27 28 18 1 2 3 4 5 6 7 (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3). A professional review action shall be presumed to have met the preceding standards necessary for the protection set out in section 11111(a) of this title unless the presumption is rebutted by a preponderance of the evidence. 42 U.S.C. § 11112(a). 8 9 The defendants likely had a reasonable belief that their 10 actions were taken in furtherance of quality health care. The 11 “reasonable” standard is an objective test, not a subjective one. 12 Austin, 979 F.2d at 734. Thus, the Court need not concern itself 13 with claims of animosity on the part of some of the defendants; even 14 if true, these claims would be irrelevant to an objective test. Id. 15 The issue turns on whether the defendants could reasonably believe 16 that suspending Dr. Chudacoff for the quality of care he provided 17 furthers quality health care. It is possible that the suspension 18 was to further quality health care at the UMC, as a hospital 19 reasonably would not want to extend privileges to a physician that 20 was not practicing medicine at an appropriate level. 21 Whether the defendants acted after a reasonable effort to 22 obtain the facts of the matter is a closer question. The parties 23 dispute how much of an investigation Dr. Ellerton undertook before 24 referring the matter to the MEC. Given the “unusual” summary 25 judgment standard with HCQIA immunity, a reasonable jury could 26 conclude that the defendants’ actions were outside the scope the 27 HCQIA. 28 The matter remains an open question of fact. 19 1 Turning to the third element, as we concluded above, the notice 2 and hearing procedures afforded Dr. Chudacoff were constitutionally 3 insufficient. The lack of a pre-deprivation hearing was 4 fundamentally unfair to Dr. Chudacoff. Nevertheless, section 5 11112(b), discussed below, provides a safe harbor for adequate 6 notice and hearing under 42 U.S.C. § 11112(a)(3). We will address 7 that issue below. 8 With respect to the fourth element, the parties disagree as to 9 whether the action was warranted, and the parties disagree about 10 whether the defendants engaged in “reasonable efforts” to obtain the 11 facts of the matter. Again, this matter appears to be an open 12 question. 13 At bottom, to have immunity under the statute, the defendants 14 must meet all of the elements of 42 U.S.C. § 11112(a). The 15 defendants have thus far failed to show that they provided Dr. 16 Chudacoff with reasonable notice and hearing procedures of the 17 adverse action against him. Thus, if we find that the defendants do 18 not qualify for the safe harbor of 42 U.S.C. § 11112(b), then the 19 open questions of fact become non-material to the question of 20 summary judgment. We turn now to that issue. 21 22 23 2. Notice and Hearing Elements under § 11112(b) Section 11112(b) provides a safe harbor for notice and hearing 24 requirements. 25 26 27 28 In part, the section provides: A health care entity is deemed to have met the adequate notice and hearing requirement of subsection (a)(3) of this section with respect to a physician if the following conditions are met (or are waived voluntarily by the physician): 20 1 2 3 4 5 6 7 8 9 10 11 12 (1) Notice of proposed action The physician has been given notice stating-(A) (i) that a professional review action has been proposed to be taken against the physician, (ii) reasons for the proposed action, (B) (i) that the physician has the right to request a hearing on the proposed action, (ii) any time limit (of not less than 30 days) within which to request such a hearing, and (C) a summary of the rights in the hearing under paragraph (3). (2) Notice of hearing If a hearing is requested on a timely basis under paragraph (1)(B), the physician involved must be given notice stating-(A) the place, time, and date, of the hearing, which date shall not be less than 30 days after the date of the notice, and (B) a list of the witnesses (if any) expected to testify at the hearing on behalf of the professional review body. 42 U.S.C. § 11112(b). 13 The timing of the notice is critical to understanding this 14 provision. The statute begins by using the present perfect 15 progressive tense (“The physician has been given notice”), 16 indicating that the action began in the past, has continued into the 17 present, and may continue into the future. Next, the statute 18 requires, again using the present progressive tense, that a 19 physician be given notice that a “professional review action has 20 been proposed to be taken.” The verb “proposed” indicates that 21 while the proposal of the review action has begun in the past, the 22 “review action” has not yet come to fruition. Thus, for HCQIA 23 immunity to apply, the notice given to the physician must state that 24 a review action will come to be in the future. Were it sufficient 25 for the defendants merely to give the plaintiff notice of the review 26 action after the fact, the statute would read as follows: “The 27 28 21 1 physician has been given notice stating that a professional review 2 action has been taken against the physician.” This interpretation 3 omits the operative phrase “proposed to be,” which clearly denotes 4 when in the course of events the review action must take place. It 5 is not sufficient for the physician to be told, after the fact, that 6 a review action has been taken against him already. The defendants 7 have not met the requirements of the safe harbor provision. 8 9 10 3. Reporting Requirements of 42 U.S.C. § 11131-34 The relevant reporting requirements of 42 U.S.C. §§ 11133-34 11 require health care entities to report to the Board of Medical 12 Examiners any adverse action that “affects the clinical privileges 13 of a physician for a period longer than 30 days” within a specified 14 time — in essence, not more than sixty days. It does not appear 15 that there was anything procedurally deficient with the way in which 16 Defendants reported Plaintiff's suspension to the Board. 17 Nevertheless, because the defendants did not comply with the 18 notice and hearing requirements of the statute, they are not 19 entitled to HCQIA immunity. 20 21 22 IV. Motion for Preliminary Injunction Chudacoff has also a filed a motion for preliminary injunction 23 (#85). Chudacoff seeks to require the defendants to withdraw the 24 adverse information lodged with the NPDB with respect to Chudacoff’s 25 alleged substandard level of care. 26 Requiring the defendants to lift the NPDB report regarding 27 Chudacoff’s ability to practice medicine turns this motion into one 28 22 1 for a mandatory injunction. While the normal purpose of an 2 injunction is to preserve the status quo before trial to preserve 3 the rights of the parties, a mandatory injunction requires a party 4 to perform a specific act to remedy allegedly harmful conduct. 5 Texas & N. R.R. v. Northside Belt Ry, 276 U.S. 475 (1928). Courts 6 require a higher burden to be met in order to issue mandatory 7 injunctions, especially when the requested action would force the 8 non-moving party to go beyond simply maintaining the status quo. 9 Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319-1320 (9th Cir. 10 1994). 11 Chudacoff’s requested injunction is rooted in the MEC’s 12 decision to suspend his hospital privileges without procedural 13 safeguards. That is, there are two parts to Chudacoff’s underlying 14 claim: (1) he was denied procedural due process; and (2) the MEC 15 improperly suspended his privileges. 16 Regarding this first claim, we concluded above that Chudacoff 17 was denied his procedural due process rights. Nevertheless, we have 18 not considered whether the MEC’s decision was ultimately 19 substantively correct. 20 Nor need we venture down that path now. Had Chudacoff been afforded the proper procedural due process, 21 he would have had notice and a hearing before the MEC suspended his 22 privileges. The MEC, however, would still have had the authority to 23 recommend suspending Chudacoff’s privileges had the appropriate 24 basis been laid. After all of the administrative procedures had 25 been followed — as outlined in the Fair Hearing Plan, the Bylaws, 26 and the Credentialing Manual — then Chudacoff could still have lost 27 his privileges. 28 He could also have prevailed. 23 1 The remedy sought here would require the defendants to give 2 Chudacoff the appropriate procedural due process. Whether or not we 3 require the UMC to pull the adverse report with the NPDB now, the 4 Court would remand the matter back to the MEC to decide the case as 5 if Chudacoff had never been reported to the NPDB in the first place. 6 It appears from the papers before the Court that the case 7 already is back before the MEC, just as the Court would have 8 ordered. (See D.s’ Opp. to Mtn. for TRO/PI at 6 (“The Board [of 9 Trustees] ordered the parties to conduct a new Fair Hearing on the 10 issues related to the May 27, 2008 actions by the MEC within the 11 next sixty (60) days.” (#92).)4 Depending on how the substantive 12 administrative proceedings turn out, it will become clear what 13 further order, if any, the Court must issue. At the present time, 14 it is premature to attempt to fashion any injunctive relief. 15 In short, the administrative process needs to run its course 16 before the Court issues any injunctive relief, as the matter may be 17 resolved without any additional Court action. While Dr. Chudacoff’s 18 procedural rights have been violated, it is too early to hazard a 19 guess as to whether his substantive rights have been so affected. 20 21 22 V. Conclusion Prior to being deprived of a protected property interest, Dr. 23 Chudacoff was entitled to notice and an opportunity to be heard. He 24 was not afforded constitutionally sufficient procedural protections. 25 Partial summary judgment in his favor is appropriate. Further, the 26 27 28 4 It is not clear what result, if any, the MEC reached, though the hearing should have been held by March 20, 2009. 24 1 defendants are not entitled to HCQIA immunity because they did not 2 comply with the required statutory provisions. 3 Additionally, the administrative procedures need to run their 4 course before the Court may fashion any type of injunctive relief, 5 if appropriate. 6 7 IT IS, THEREFORE, HEREBY ORDERED that Plaintiff’s Motion for 8 Partial Summary Judgment (#86) is GRANTED. 9 IT IS FURTHER ORDERED that Plaintiff’s Motion for Preliminary 10 Injunction (#85) is DENIED. 11 12 13 DATED: April 8, 2009. 14 15 ____________________________ UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 25