Opinion
Case No. 00-0716-CV-W-HFS
January 29, 2004
MEMORANDUM AND ORDER
Before the court is the motion of defendants Trinity Lutheran Hospital ("Trinity Hospital") and Health Midwest for summary judgment. Specifically, defendants claim immunity from the alleged claims under the Health Care Quality Improvement Act of 1986 ("HCQIA").see. 42 U.S.C. § 11111(a)(1), 11112(a) (1994). Plaintiffs, Dr. Sharon D. Lee, and Greater Kansas City Family Health Care, Inc. ("Family Health Care"), commenced this action on May 7, 1998, in the Circuit Court of Jackson County, Missouri, where there was an allegation of defamation. By a Third Amended Petition For Damages, they alleged violations of the Sherman Act §§ 1 and 2; Missouri Antitrust Law; the Unfair Trade Practices Act; and the HCQIA; as well as claims for Intentional Interference with Contractual Business Relations; Defamation; and Breach of Contract. Plaintiffs sought injunctive relief, reinstatement of Dr. Lee's medical staff privileges, and monetary damages.
Also before the court is defendants' motion to deem uncontroverted facts admitted.
On July 17, 2000, defendants removed the action to this court, and notwithstanding a subsequent stay imposed due to plaintiff's ill health, the action has remained pending before this court. Although somewhat tedious, it would probably be beneficial to recite the procedural background of this case.
Defendants then moved to dismiss Family Health Care as a plaintiff in this action due to plaintiff's failure to comply with Mo.Rev.Stat. § 351.574, which requires foreign corporations to obtain a certificate of authority before pursuing any action in any court in the state of Missouri. Defendants also sought an order dismissing counts VIII and IX of the Third Amended Petition, alleging violations of the Missouri Unfair Trade Practices Act, and the Health Care Quality Improvement Act, respectively. Defendants then moved to dismiss defendants Dr. Joan Akers and Dr. Mollie O'Connor from the action.
By an order dated February 2, 2001, Family Health Care was dismissed as a party to the action, and plaintiff's motion to amend in order to substitute Southwest Boulevard Family Health Care Services of Greater Kansas City, Inc. was denied. Inasmuch as Count VIII was inapplicable to plaintiff's situation, it was dismissed; Count IX was voluntarily abandoned by plaintiff. Finally, defendants, Drs. Akers and O'Connor, were dismissed due to plaintiffs failure to serve them within 120 days of removal of the action to this court.
Factual And Procedural Background
In 1994, plaintiff was on the medical staff at defendant Trinity Hospital. According to plaintiff's affidavit, in 2002, she was certified as an HIV specialist from the American Association of HIV Medicine. (Plaintiff's Exh. 1: pg. 4). On May 26, 1994, patient C.A. was admitted to the Infectious Disease Unit ("IDU") at defendant Trinity Hospital with clinically diagnosed (presumed, i.e. without tests to confirm the diagnosis) pneumocystis carinii pneumonia ("PCP"). It is unclear whether C.A. was being treated with Pentamidine at the time of admission, and subsequently treated with Trimetrexate, or vice versa; but there is no dispute that as of May 27, 1994, C.A. was being treated with both medications. It is also undisputed that each of these drugs have toxicities, and that used in combination, was a desperate measure, and could produce adverse effects. Dr. James Wooten, a Clinical Pharmacy Specialist, contacted plaintiff and advised her that the manufacturer of Pentamidine indicated that the two drugs should not be used simultaneously; Dr. Wooten also expressed concern that defendants could be subject to liability. Plaintiff stated that she would remove C.A. from the hospital to avoid hospital liability. Because the combined usage of these two drugs was considered to be the use of FDA approved drugs in a manner not approved by the FDA, hospital protocol required Dr. Wooten to contact a member of the Pharmacy and Therapeutics Committee ("PT T Committee"). A member of the committee, Dr. Beth Henry, agreed that the usage of the two drugs was inappropriate, and suggested that this situation required peer review. Dr. Wooten released the drugs for use, but instructed the nursing staff to closely monitor C.A.
Plaintiff states that this was not a threat, but merely a way to allay defendant hospital's fears regarding potential liability. Defendants could reasonably view the remark as somewhat hostile or confrontational.
On June 1, 1994, the Peer Review on Medicine Committee ("PRMC") met to discuss plaintiff's use of the drugs in combination against the advice of the manufacturers, and that C.A.'s chart did not contain the documentation used to establish the presumed diagnosis of PCP. The committee voted unanimously to suspend the administration of both drugs, and decided that the Chair of Family Practice, Dr. Joan Akers, would meet with plaintiff to discuss the combined drug usage.
On June 2, 1994, Dr. Akers and several other physicians met with plaintiff to discuss the quality of care rendered to patient C.A. Plaintiff read a prepared statement. Dr. Akers' notes indicate that plaintiff felt she was being treated unfairly and that her attitude was confrontational. (Defense Exh. 8). However, plaintiff did engage in an amicable clinical conversation with Dr. Mary O'Connor. (Id).
The PRMC met on July 6, 1994. The record indicates that during the June 2, 1994 meeting, plaintiff threatened to discharge C.A. and all of her other patients, and would not admit further patients. (Defense Exh. 9). Due to previous concerns reviewed by the PRMC, and plaintiff's reaction to the instant situation, it was recommended that the records of plaintiff be reviewed prospectively by a subcommittee. (Id). The subcommittee comprised Dr. Daniel Daniels, Dr. Anne Sly, and Dr. Akers.
The subcommittee, consisting of Drs. Akers and Sly, met with plaintiff to discuss physicians interactions with each other, practice patterns, and the appropriate use of medications. (Defense Exh. 2; pg. 194). Dr. Akers testified that she met again with plaintiff to set up a protocol for a pharmacy review. (Id). Plaintiff states that she met only once with Dr. Akers and Dr. Kathy Chase, Director of the Pharmacy, and that the discussion was limited to medications and a six month pharmacy review. (Plaintiffs Exh. 1; pg. 39).
On October 5, 1994, the PRMC met. The minutes reflect concern about plaintiff's behavior with the nursing staff, and a prospective review of plaintiff's charts was approved for an additional six months.
In December of 1994, Dr. Chase expressed concern to Dr. Akers about patient J.W. as to the possibility that a serious diagnosis was left untreated; specifically a central nervous system lesion. Dr. Akers asked Dr. Henry, an Infectious Disease physician, and Dr. Ethirajan, an oncologist, to review J.W.'s chart. Both physicians agreed that there had been inadequate workup on J.W. Dr. Akers then asked plaintiff to get an Infectious Disease consultant and a hematology consultant; plaintiff did so.
The PRMC met on December 7, 1994. Its review of plaintiff's patient charts indicated that drugs were used without adequate indication, potent drugs were used without a prior firm diagnosis, and that probable diagnoses were made without corroborating investigational studies. The PRMC recommended that a specialist from an outside facility review plaintiff's records.
The PRMC met on January 4, 1995. The chart of patient J.B. was reviewed, and it was recommended that plaintiff supply additional information. Plaintiff read a letter, and then left the meeting. The chart of patient W.D. was reviewed at a PRMC meeting held on March 1, 1995, and plaintiff was again asked to supply additional documentation.
On April 5, 1995, the PRMC met to review the charts of patients D.J. and W.D. It was noted that D.J.'s case was possibly one of premature death and received a preliminary rating of "4", meaning that the clinical practice was unexpected and unacceptable. A letter of inquiry was sent to plaintiff requesting a response. As to W.D., plaintiff was asked to supply documentation pertaining to the diagnosis and completion of the History and Physical.
At a meeting held on May 3, 1995, the PRMC still considered D.J. to be a possibly premature death, and further discussion was held as to W.D. The file of D.J. was closed at a PRMC meeting held on June 7, 1995.
In June of 1995, Dr. Akers, under the direction of the PRMC, asked Dr. Glen Hodges to review the charts of five of plaintiff's patients. Dr. Hodges was a physician at the Kansas City Veterans Administration ("V.A.") Medical Center. He was chairman of the V.A.'s Aids Task Force, or V.A. Department national AIDS special user group. Dr. Hodges had eight years of experience reviewing 20 to 48 charts per year for documentation and medical care purposes at the V.A. He concluded that in four of the five cases, the standard of care was not met, and he identified 37 problems in medical care and documentation in plaintiff's treatment of those four patients. He further concluded that the standard of care in the fifth case was questionable. Plaintiff was furnished a copy of the report.
The PRMC met on July 26, 1995. Dr. Hodges' report was presented; plaintiff presented her rebuttal to the report and answered questions. Following the discussion, the PRMC voted 9-2 to suspend plaintiff's clinical privileges.
At a meeting held on August 2, 1995, the PRMC reviewed the charts of patients O.G. and J.B. and rated them a 4, indicating that plaintiff's care of those patients was unacceptable. On August 3, 1995, members of the Medical Executive Committee met, with plaintiff in attendance, and after discussion, the Executive Committee voted to uphold the suspension. Plaintiff was sent a letter dated August 9, 1995, reflecting the Executive Committee's decision. An Ad Hoc Committee of five physicians was appointed to review all pertinent data and make a recommendation to the Executive Committee. By letter dated August 28, 1995, the chairman of the Ad Hoc Committee, Dr. Scott W. Thompson, requested plaintiff's attendance at a meeting to be held on September 14, 1995. From August 3, 1995, thru September 27, 1995, the Ad Hoc Committee met six times to interview five staff employees and one physician, and reviewed 17 charts.
On September 14, 1995, the Ad Hoc Committee met with plaintiff, who was permitted to make comments and ask questions. On September 27, 1995, the Ad Hoc Committee submitted a report to the Executive Committee in which it unanimously recommended that plaintiff's medical staff privileges be completely revoked. At a meeting held on October 3, 1995, the Executive Committee unanimously voted to accept the recommendation. Plaintiff was notified of this decision by letter dated October 4, 1995. Pursuant to plaintiffs request, hearings were held on May 14, 1996, and June 28, 1996. Plaintiff was represented by counsel. Both sides called witnesses, and at the conclusion of the hearing, the Hearing Committee voted three to two that plaintiff's privileges be reinstated if she met certain conditions. If not, the Hearing Committee affirmed the Executive Committee's October 3, 1995, decision to revoke plaintiff's staff membership. The conditions included, among other things, that infectious disease consultations be part of all HIV patients' admission orders, plaintiff's attendance at the Colorado Personalized Education for Physicians, plaintiff's participation in independent psychological counseling twice a month for one year, and submission of comprehensive medical records regarding the diagnosis, problems and treatment of plaintiff's patients.
On August 6, 1996, the Executive Committee met, and at the conclusion of the discussion, voted unanimously to recommend revocation of plaintiff's medical and staff privileges. The stated reasons included, but were not limited to, the difficulty of enforcing the conditions, finding consultants willing to take responsibility for plaintiff's practice with the imposed restrictions, and possible liability for continuing to grant privileges to plaintiff when concerns of inappropriate care had been identified. Plaintiff was provided a copy of the report.
Pursuant to plaintiff's request, an Appellate Review was held on September 18, 1996. Plaintiff was again represented by counsel who stated that while there was no challenge to the prior hearing, the process up to that time significantly lacked due process. At the conclusion of the hearing plaintiff was asked if she would comply with the conditions mandated at the prior hearing. Plaintiff expressed concern that although no evidence of psychological or mental health issues was presented, two of the conditions specifically addressed those issues. This response has been considered a refusal to accept the conditions.
On September 9, 1996, the Appellate Review Committee unanimously recommended to the Board of Directors that the recommendation of the Executive Committee be affirmed. On September 23, 1996, the Board unanimously voted to accept the recommendation and revoked plaintiff's medical privileges.
On October 11, 1996, an Adverse Action Report was submitted to the National Practitioner Data Bank. The report checked conclusions that the adverse action taken was based on incompetence, malpractice, and negligence. The report further specified that plaintiff's medical staff privileges were revoked due to the inappropriate use of medications, the failure to follow established protocols for drug uses, providing treatment based on presumptive diagnoses, inadequate or poor documentation, failure to address abnormal patient care data, failure to obtain appropriate consults, failure to work up mental status changes, failure to assume care of hospitalized patients, and unprofessional behavior.
The National Practitioner Data Bank is an organization created under the HCQIA to collect information on physicians, including reports of adverse peer review actions. Brown v. Presbyterian Healthcare Services, 101 F.3d 1324, 1328, n. 3 (10th Cir. 1996);citing, 45 C.F.R. Part 60 (1995). "Each health care entity must report to the Board of Medical Examiners. . . . [a]ny professional review action that adversely affects the clinical privileges of a physician."Id; see also, 45 C.F.R. § 60.9(a). The Board of Medical Examiners must in turn report this information to the National Practitioner Data Bank. Id.
Trinity Hospital closed in November, 2001, thus mooting claims other than for money damages.
Analysis
Standard Of Review For Summary JudgmentFed.R.Civ.P. 56(c) provides that summary judgment is appropriate "if the pleadings, depositions, and answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Honeywell. Inc. v. Ruby Tuesday. Inc., 43 F. Supp.2d 1074, 1076 (D.Minn. 1999); quoting. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A fact is material only when its resolution affects the outcome of the case.Honeywell, at 1076; citing. Anderson v. Libert Lobby. Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Anderson, at 252.
On a motion for summary judgment, all evidence and inferences are to be viewed in a light most favorable to the nonmoving party. However, if a plaintiff cannot support each essential element of its claim, summary judgment must be granted because a complete failure of proof regarding an essential element necessarily renders all other facts immaterial.Honeywell, at 1076; citing. Anderson, at 322-23.
Defendants complain that pursuant to Local Rule 56.1, plaintiff has failed to set forth a concise listing of material facts claimed to be in dispute, and to set forth each fact in dispute in a separate paragraph. In support of their argument, defendants rely on Ruby v. Springfield R-12 Public School Dist, 76 F.3d 909, 911 n. 6 (8th Cir. 1996), which essentially found that plaintiff's "mere allegations that issues remained in dispute," were insufficient to meet the requirements of Local Rule 13(g). However, here, I find that while rather individualistic, plaintiff's statement of disputed facts sufficiently comports with Local Rule 56.1, in that each fact in dispute is set forth in a separate paragraph. Plaintiff's statement also refers to those portions of the record upon which she relied, and it states the paragraph number in defendants' listing of facts that is disputed.
HCQIA Immunity
"Congress passed the [HCQIA] `to improve the quality of medical care by encouraging physicians to identify and discipline physicians who are incompetent or who engage in unprofessional behavior.'" Sugarbaker v. SSM Health Care, 190 F.3d 905, 911 (8th Cir. 1999); see also, H.R. Rep. No. 903, 99th Cong., 2d Sess. 2 (1986). Congress concluded that effective peer review would be furthered "by granting limited immunity from suits for money damages to participants in professional peer review actions." Sugarbaker, at 911; see also, 42 U.S.C. § 11101(5), 11111(a).
In order for there to be immunity under the HCQIA, the professional review action must be taken:
(1) in the reasonable belief that the action was in furtherance of quality health care,
(2) after a reasonable effort to obtain the facts of the matter,
(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).Sugarbaker, at 912; see also, 42 U.S.C. § 11112(a).
The HCQIA further creates a presumption that a professional review action meets these standards "unless the presumption is rebutted by a preponderance of the evidence." Sugarbaker, at 912;quoting. Wayne v. Genesis Med. Ctr., 140 F.3d 1145, 1148 (8th Cir. 1998); citing, 42 U.S.C. § 11112(a). Further, the requirements contained in section 111 12(a) necessitate an objective inquiry.
Sec. 11112(a)(1) Reasonable Belief that the Action Furthered Quality Health Care
As to whether defendants held a reasonable belief that their action furthered quality health care, plaintiff argues that defendants' reliance on the findings of Dr. Hodges belies their stated reasonable belief that revocation of her privileges furthered quality health care. In support thereof, plaintiff contends that Dr. Hodges made multiple substantive errors in his review of her patients' charts. These errors consisted of missed laboratory tests, overlooked radiological tests, the application of an outdated standard, as well as the application of a standard which was not in practice with HIV/AIDS patients. Plaintiff also complains that Dr. Hodges' report lacked credibility because it recited, in large part, problems with plaintiff's work as noted by Dr. Akers in a letter sent to Dr. Hodges. Plaintiff further argues that her experts, Dr. Mark Jacobson and Dr. Joseph Brewer, in addition to Dr. O'Connor found Dr. Hodges' report to be incorrect.
While fully crediting plaintiff's assertions, her argument is unpersuasive. It is immaterial whether defendants' reliance on Dr. Hodges proved to be medically sound; rather, the objective inquiry focuses on whether the professional action taken against plaintiff was taken "in the reasonable belief that the action was in the furtherance of quality health care." Sugarbaker, at 913. In the case at bar, the PRMC initially met to discuss plaintiff's use of Pentamidine and Trimetrexate, in combination, to treat patient C.A. who had been presumably diagnosed with PCP. Because these two drugs, although PDA approved, were being used in an unapproved manner Dr. Wooten was contacted. After expressing concern to plaintiff about the manufacturer's recommendation against the simultaneous use of the medications, Dr. Wooten advised Dr. Henry of the situation. It was this transaction, in addition to plaintiff's perceived threat to discharge C.A. from the hospital, that led to the PRMC meeting on June 1, 1994. Further investigation revealed objective medical concerns regarding the lack of documentation in C.A.'s chart supporting the presumed diagnoses of PCP, as well as plaintiff's confrontational attitude and proposal to discharge all of her patients from Trinity Hospital.
The record contains additional evidence of defendants' concerns about quality health care. When concern arose about the possibility that a serious diagnosis of a patient was left untreated, an Infectious Disease physician and an oncologist agreed that the workup performed by plaintiff on this patient was inadequate. For several months, various charts of plaintiff's patients admitted after January 1, 1994, were reviewed. The minutes of the PRMC meeting held on December 7, 1994, reflected that: (1) drugs were used without adequate indication; (2) potent drugs were used without a firm diagnosis prior to initiation; and (3) possible diagnoses were noted without investigational studies to corroborate the diagnosis. From January 4, 1995, thru August 2, 1995, the charts of four additional patients were reviewed, and it was determined that the clinical practice employed for three of the patients was unexpected and unacceptable.
In addition to Dr. Hodges, Dr. Akers concluded that plaintiff rendered inappropriate medical care by treating those patients without adequate diagnostic workup, by using pharmaceutical drugs in unapproved manners and combinations, and by inadequately documenting her care of hospitalized patients. Several other physicians also expressed their concerns to Dr. O'Connor that plaintiff was not practicing within the standard of care. Calling upon Dr. Hodges and placing some reliance on his expertise cannot be said to have been unreasonable, given the information then available to defendants, especially given the rather generous scope of reasonableness used in construing this legislation.
Perhaps the key to this ruling is the wide divergence in usage employed by the courts in dealing with tests of "reasonableness". In some contexts, but not in connection with this legislation so far as I can determine, the courts use rather close scrutiny of conduct in evaluating what should be classified as reasonable. That is what plaintiff advocates. In other contexts, which I believe the cases do employ (or approach) here, anything short of plainly arbitrary conduct may be called reasonable. The far reaches of the term may be exemplified by the handling of substantial assistance evaluation to support motions for downward departures in sentencing. While plea agreements generally assign sole discretion to prosecutors in evaluating such assistance, the courts require that discretion be exercized in a non-arbitrary manner, and this may be said to impose a very loose "rule of reason" on prosecutors. They must have a rational basis for their decision and must act reasonably.United States v. Weaver, 216 F.3d 693 695 (8th Cir. 2000);United States v. Due, 205 F.3d 1030, 1034 (8th Cir. 2000). As a matter of practice, however, almost any decision made by the prosecutor is invulnerable. I do not suggest that there is no relief under the legislation here, except where conduct can be condemned as completely arbitrary. But the generous application of the concept of reasonableness under this legislation may be compared with typical judicial review of administrative decisions and of such things as internal procedures for terminating membership in voluntary associations. These comments are, in my opinion, sufficiently understood judicially so that they need not be supported by wide-ranging citations.
Once the PRMC summarily suspended plaintiff's clinical privileges, the Medical Executive Committee met with plaintiff, and after discussion, voted to uphold the suspension. The Executive Committee also appointed an Ad Hoc Committee to review all pertinent data and submit a recommendation to the Executive Committee. After interviewing five staff employees and reviewing seventeen charts, the Ad Hoc Committee unanimously concluded that plaintiff's treatment of her patients did not meet the appropriate standard of care, and recommended that her medical staff privileges be revoked.
The Appellate Review Committee held a lengthy discussion with plaintiff as to whether she would accept and comply with the conditions mandated by the Hearing Committee. With the exception of attending a medical recordkeeping class, plaintiff expressed reluctance to comply with the conditions set forth by the Hearing Committee. Therefore, the Appellate Review Committee concluded that the decision revoking plaintiff's staff privileges was taken in the reasonable belief that it was in furtherance of quality health care and the decision was warranted by the facts known after a reasonable effort was made to obtain the facts. Consequently, the Appellate Review Committee unanimously recommended to the Board of Directors that the decision of the Executive Committee be affirmed.
Plaintiff found it incredible that she would be required to undergo psychological counseling when it had not previously been set forth as a problem. She suggested that this condition, mandated without a sound basis, was similar to the criticism alleged against her, that is, making empiric diagnoses prior to fully determining a diagnosis.
Nevertheless, the fact that some of defendants' specific concerns shifted or changed over time does not rebut the presumption that plaintiff's clinical privileges were revoked "in the reasonable belief that the action was in the furtherance of quality health care."Sugarbaker, at 913; quoting, 42 U.S.C. § 11112(a)(1).
The final decision of the Board unanimously accepting the recommendation of the Appellate Review Committee affirming the Executive Committee's recommendation of revocation of plaintiff's clinical privileges at Trinity Hospital, was entirely consistent with the summary suspension of plaintiff's privileges instituted by the PRMC. Moreover, the record clearly evidences that concern for health care quality remained at the forefront throughout the peer review process.
Plaintiff attempts to rebut defendants' action of revoking her privileges by arguing that the Hearing Committee's recommendation to reinstate her privileges demonstrates that there was no objective reasonable basis for continuing the suspension. This argument is unpersuasive because the Hearing Committee expressly stated that reinstatement would be based on plaintiff's compliance with the enumerated conditions. As such, the Hearing Committee's recommendation did not vindicate plaintiff. If a majority of that committee supposed the problems were curable that does not support the view that there were no serious problems, as viewed by the committee. Sugarbaker, at 913; see also, Singh v. Blue Cross/Blue Shield of Mass, 308 F.3d 25, 41 (1st Cir. 2002) (the reversal of a peer review committee's recommendation of an adverse professional review action by a higher level peer review panel does not indicate that the initial recommendation was made without a reasonable belief that the recommendation would further quality health care).
Equally without merit is plaintiff's argument that the revocation of her privileges lacked an objective reasonable basis because members of the PRMC such as Dr. O'Connor and her partner, Dr. Henry, were in direct competition with her. Implicit in this argument is the suggestion that since plaintiff and other physicians were pressured to utilize Dr. O' Connor and her partners for all patients admitted to Trinity Hospital with a diagnosis of infectious disease, plaintiff's reluctance to follow this prescribed avenue somehow led to a plan to revoke her privileges. Notwithstanding these allegations, it has been held that even subjective bias or bad faith motives of the peer reviewers would be irrelevant to the objective inquiry under 42 U.S.C. § 11112(a).Sugarbaker, at 914; citing. Brader v. Allegheny Gen. Hosp., 167 F.3d 832, 839 (3rd Cir. 1999).
There is no provision in HCQIA barring competitors from participating in "professional review activities." Sugarbaker, at 914; quoting. Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 635 (3rd Cir. 1996); see also. Wayne v. Genesis Medical Center, 140 F.3d 1145, 1149 (8th Cir. 1998).
Plaintiff also argues that AIDS specialists Drs. Mark Jacobson and Joseph Brewer supported her treatment of AIDS's patients, and agreed that it met the standard of care in most instances. This is irrelevant, however, to the objective inquiry on the reasonableness of the peer reviewers' belief that they were furthering quality health care. Sugarbaker, at 914; citing. Imperial v. Suburban Hosp. Ass'n. Inc., 37 F.3d 1026, 1030 (4th Cir. 1994) ("[T]he Act does not require that the professional review result in an actual improvement of the quality of health care.").
It may be assumed arguendo, that plaintiff should have been exonerated. This assumption is somewhat supported by plaintiff's more elaborate substantive showing in litigation. Defendants are entitled to prevail, however, based on the purpose of the legislation and the procedural soundness of the essence of their defense.
In sum, plaintiff failed to produce sufficient relevant evidence to rebut the presumption that defendants revoked her privileges in the reasonable belief that the action was in furtherance of health care quality.
Sec. 11112(a)(2) Reasonable Fact Gathering
In order to be immune from liability under HCQIA, it is also necessary for defendants to make a reasonable effort to obtain the relevant facts. The "totality of the process" leading up to defendants' action is looked at in assessing whether a reasonable effort was made to obtain the facts.Sugarbaker, at 914. Plaintiff contends that defendants' reliance on the report of Dr. Hodges, who according to plaintiff was not a reasonably qualified expert, and the failure to include plaintiff at the meetings, evinced a lack of reasonable effort to obtain the facts.
I disagree. The record supports defendants' contention that they made very considerable reasonable efforts to obtain all relevant and pertinent facts. Upon notification of plaintiffs use of toxic drugs in an unapproved manner, the PRMC met to discuss the situation, and reviewed the patient's chart. All told, the PRMC met approximately 11 times, and the Ad Hoc Committee met approximately six times to review the charts of plaintiff's patients admitted after January 1, 1994. The PRMC consulted with an Infectious Disease physician and an oncologist when concerned that the serious diagnosis of a patient may have been left untreated. The PRMC also employed the services of Dr. Hodges to review the charts of five of plaintiff's patients in order to ascertain whether the standard of care was met. Last, but not least, a hearing was convened over a period of 2 days, followed by an appellate review hearing at which testimony was heard. Contrary to plaintiff's contentions, the record clearly demonstrates a reasonable effort by defendants to obtain the relevant and pertinent facts of this matter. Compare, Misischia v. St. John's Mercy Med. Center, 30 S.W.3d 848, 859 (Mo.App.E.D. 2000).
Sec. 11112(a)(3) Adequate Notice and Hearing Procedures
It is undisputed that the failure to provide plaintiff with adequate notice and an opportunity to be heard would preclude immunity under the HCQIA. Plaintiff complains that defendants denied her the right to address certain issues or otherwise explain specific issues, and that she did not receive adequate time to respond Dr. Hodges' report. Plaintiff further complains that the cross-over of certain doctors from one committee to another marred the fairness of the proceeding.
This section of the HCQIA requires that the "professional review action" must be taken "after adequate notice and hearing procedures are afforded to the physician or after such other procedures as are fair to the physician under the circumstances." Gabaldoni v. Washington County Hosp. Ass'n., 250 F.3d 255, 262 (4th Cir. 2001). A "professional review action" does not occur under the HCQIA until "an action or recommendation of a professional review body is taken or made in the context of a professional review activity. . . . which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician." Gabaldoni, at 262;quoting, 42 U.S.C. § 11151(9).
Here, the "professional review action" complained of occurred when the Board took the action, evidenced by its vote, to revoke the medical staff membership and privileges of plaintiff at Trinity Hospital. This action did not occur until after the requisite notice and hearing procedures were followed. After the Executive Committee voted unanimously to accept the recommendation of the Ad Hoc Committee to revoke plaintiff's privileges, on October 4, 1995, plaintiff was provided a letter advising her of the decision, as well as her right to a hearing and review. (Defense Exh. 38). Plaintiff was then represented by counsel at the Hearing, where both parties presented witnesses, and plaintiff's counsel was afforded an opportunity to cross-examine witnesses adverse to plaintiff's case. As previously noted, notwithstanding the Hearing Committee's recommendation imposing certain conditions, due to the difficulty in the enforcement of those conditions, the Executive Committee voted unanimously to recommend revocation of plaintiff's privileges. Plaintiff was furnished the minutes of the Executive Committee's meeting, in addition to the report of the Hearing Committee. Pursuant to the Medical Staff By-Laws, an Appellate Review was held, at which plaintiff was again represented by counsel. At the conclusion of the Appellate Review Hearing, a discussion was held in which both sides had an opportunity to ask questions and clarify issues. Indeed, plaintiff's counsel stated that "with regard to the Hearing itself, we have no challenge." (Defense Exh. 41).
Plaintiff's contention that she was denied the chance to participate in the process up to that point is not controlling. From the inception of this process, plaintiff was notified of the concern which emanated from her decision to use two FDA approved drugs in an unapproved manner, she was also asked to obtain an Infectious Disease consultant and a Pulmonary consultant. (Defense Exh. 2; pg. 185-86). Plaintiff attended a meeting with other physicians regarding this concern, and she read a prepared statement, indicating among other things, that she was being treated unfairly. A clinical discussion followed between plaintiff and Dr. O'Connor. (Defense Exh. 2; pg. 189). Thereafter, plaintiff met with Dr. Akers to discuss the appropriate use of medications. (Defense Exh. 2; pg. 194). When concern was raised about the possibility of a serious diagnosis being untreated, plaintiff was given the opportunity to get an Infectious Disease consultant and a hematology consultant to rebut the concerns raised by Trinity Hospital's consultants. Plaintiff was given a copy of Dr. Hodges' report, and although she complains that she received it more than a week after it was submitted to the PRMC, she was permitted to, and in fact did, present a rebuttal to Dr. Hodges' report. Plaintiff was also notified by letter dated July 26, 1995, that she had been summarily suspended, and of the Medical Staff By-Laws describing the hearing review procedures.
Plaintiff complains that she was not invited to the PRMC meeting held on June 2, 1994, and that, contrary to defendants' assertions, she did not meet with the Ad Hoc Committee on two occasions, but only once. However, this does not serve to dispute the fact that plaintiff had adequate notice. Even if some aspects of the controversy could have been better handled, it is doubtful that Congress intended to require more than the elaborate and time-consuming proceedings in this case.
Consequently, plaintiff has failed to create a jury issue that the Board took action against her prior to the implementation of the requisite notice and hearing procedures.
Sec. 11112(a)(4) Reasonable Belief That The Action Was Warranted After Compliance with Mandated Procedures
The final inquiry is whether defendants undertook the professional review action "in the reasonable belief that the action was warranted by the facts known after [a] reasonable effort to obtain facts" and after providing adequate notice and hearing.; which is a similar analysis to that taken under sec. 11112(a)(1). Sugarbaker v. SSM Health Care, 190 F.3d at 916. Hence, plaintiff reiterates many of the arguments previously set forth, i.e., the opinion of her expert, Dr. Jacobson, that plaintiff provided quality medical care to her patients, and that competition between herself and Dr. O'Connor, rather than fact gathering heavily influenced the adverse decision.
Contrary to plaintiff's contentions, the fact that the physicians involved in this process may have reached an incorrect conclusion on a particular medical issue because of a lack of understanding does not "meet the burden of contradicting the existence of a reasonable belief that they were furthering health care quality in participating in the peer review process." Sugarbaker, at 916. Based on the voluminous record at bar, there is no question of fact, and it remains clear that the peer review process was reasonable under HCQIA.Sugarbaker, at 917; see also. Misischia v. St. John's Mercy Med. Center, 30 S.W.3d at 861.
"Plaintiff's reliance on the favorable outcome for the plaintiff in Brown v. Presbyterian Healthcare Services, 101 F.3d 1324 (10th Cir. 1996), is misplaced. For there, testimony was presented that the peer review panel's review of only two charts prior to revoking the plaintiff's privileges was unreasonably narrow and did not provide a reasonable basis for concluding that there had been a contract violation and the plaintiff posed a threat to patient safety. Brown, at 1334. Here, the peer review process included the review of numerous charts of patients attended to by plaintiff, as well as reviews from outside consultants. Some of the language in Brown, is moreover, more inclined toward relitigating peer review decisions than is used in the case-law generally.
In conclusion, I find that, in viewing the facts in the best light for plaintiff, a reasonable jury could not conclude that plaintiff has shown, by a preponderance of the evidence, that defendants' actions were outside the scope of the immunity provision. Therefore, defendants are immune from money damages under HCQIA.
Antitrust Violations
In Count I of her third amended complaint, plaintiff alleges that Dr. Akers, Dr. O'Connor and the infectious disease clinic, and Trinity Hospital were in direct competition with her, and that they agreed and conspired with each other to exclude her from the relevant market, in violation of section 1 of the Sherman Act ( 15 U.S.C. § 1). To prove a violation of section one of the Sherman Act, a plaintiff must show an agreement in the form of a contract, combination, or conspiracy that imposes an unquestionable restraint of trade. Willman v. Heartland Hosp. East, 34 F.3d 605, 610 (8th Cir. 1994). "Although revocation of a doctor's privileges may, perforce, eliminate competition by decreasing the number of doctors in a given specialty, this alone will not give rise to an antitrust violation." Willman, at 610. An essential element of a section one violation is proof of a "conscious commitment to a common scheme designed to achieve an unlawful objective."Willman, at 610; quoting. American Tobacco Co. v. United States, 328 U.S. 781, 810 (1946).
Plaintiff's argument revolves around her contention that there was a conspiracy to force physicians, including plaintiff, to use the Infectious Disease clinic at Trinity Hospital which was headed by Dr. O'Connor. According to plaintiff, she refused to do so. Plaintiff contends that it was Dr. O'Connor who initially spoke against her in June of 1994, regarding the use of two toxic drugs in an unapproved manner. Plaintiff further contends that Dr. Sly and Dr. Akers participated in the conspiracy to oust her, and that the Board then based its decision on the web woven by Drs. O'Connor and Akers.
In support of her contention, plaintiff provides an affidavit from Dr. David L. Butcher who states that he curtailed his private practice in deference to the pressure from Trinity Hospital to use the clinic. (Plaintiff's Exh. 101).
Contrary to plaintiff's contentions, the initial inquiry regarding her use of toxic drugs did not emanate from Dr. O'Connor, but from Dr. Wooten, who was notified of the problem by a nurse in the Infectious Disease Unit. Dr. Wooten then contacted the manufacturer of one of the drugs in question, and was advised against the usage of both drugs in combination, and pursuant to hospital protocol, advised Dr. Henry, a member of the Pharmacy and Therapeutics Committee. Dr. Henry also expressed concern about the use of the drugs in combination, and stated that the matter should go before the peer review committee. Neither Dr. Wooten nor Dr. Henry were voting members of the PRMC, or any of the subsequently formed subcommittees. Other than conclusory allegations, plaintiff fails to elaborate on Dr. Sly's alleged involvement in the conspiracy, and, notwithstanding an alleged competition with Dr. O'Connor, plaintiff fails to present evidence that Dr. O'Connor somehow mustered support from the other members of the PRMC, or otherwise acted in concert to oust her from the medical staff. It is further noted that of the fourteen voting members of the Board who unanimously voted to revoke plaintiff's privileges, ten members submitted affidavits attesting that they were not subjected to any pressure or coercion in making their decision.
While the record contains the opinions of Drs. Jacobson and Brewer that plaintiff's treatment met the standard of care, the record is also replete with evidence supporting a conclusion that it would not have been unreasonable for the PRMC to have doubts about the quality of plaintiff's patient care. Willman v. Heartland Hosp. East, 34 F.3d at 611. As previously noted, the actions of physicians during the peer review process are as consistent with the lawful purpose of promoting quality patient care as with the unlawful purpose of eliminating a potential competitor. Willman, at 612. Plaintiffs bare, unsupported allegations that competitors acted in concert to insulate themselves from competition are not adequate responses to defendants' motion for summary judgment. Id.
"[A]ntitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case." Willman, at 611;quoting. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). Conduct that is as consistent with a lawful motive as with an unlawful motive, standing alone, does not support an inference of an antitrust conspiracy. Id.
Plaintiff also complains that although the Board was the final determinant, it too was influenced by her competitors. Ten of the 14 members of the Board submitted affidavits, however, attesting that they were not asked or encouraged to revoke plaintiffs privileges, and they were not subjected to pressure or coercion. Because the revocation of plaintiff's privileges was at least as consistent with the lawful motive of furthering quality health care as with an anticompetitive motive, the evidence does not support an inference of an antitrust conspiracy.Mathews v. Lancaster General Hosp., 87 F.3d 624, 641 (3rd Cir. 1996).
In Count II of the third amended complaint, plaintiff contends that, as an essential facility, Trinity Hospital, through its infectious disease clinic, is a relevant market for the treatment of HIV patients. She further contends that by revoking her privileges at Trinity Hospital, defendants' action constituted monopolization in violation of section 2 of the Sherman Act.
The essential facilities doctrine requires those in possession of facilities which cannot practically be duplicated to share those facilities with their competitors. Willman, at 612-13. To prevail under this doctrine, plaintiff must establish "(1) control of an essential facility by a monopolist: (2) the inability to practically or economically duplicate the facility; and (3) the unreasonable denial of the use of the facility to a competitor when such use is economically and technically feasible." Willman, at 613.
Even, assuming arguendo, that plaintiff suffered an antitrust violation, this claim could still fail if plaintiff has failed to establish that she has antitrust standing. Chalal v. Northwest Med. Center. Inc., 147 F. Supp.2d 1160, 1182 (N.D.Ala. 2000). Plaintiff attempts to establish standing by arguing that the revocation of her privileges eliminated her from the Missouri side of the Greater Kansas City Metropolitan area market of providing treatment for HIV/AIDS patients, and caused her to suffer the injury of a substantially decreased patient base, to wit, the loss of Missouri Medicaid patients.
Even if one could conclude that the papers on file would make a colorable and factually contested showing of an antitrust violation, such that summary judgment should not be granted on the merits, I have little doubt, based on the legislation in 1986, that immunity exists. The only exception for claims for damages, once there has been HCQIA compliance, would be for Civil Rights actions, where class discrimination is claimed. 42 U.S.C. § 11111(a)(1). The current case-law seems uniformly favorable to defendants in enforcing immunity against damages claims based on alleged antitrust violations, defamation, etc., occurring in peer review and privilege revocation situations. See Meyers v. Columbia HCA Healthcare Corp., 341 F.3d 461, 466, 473 (6th Cir. 2003); Singh v. Blue Cross/Blue Shield of Massachusetts. Inc., 308 F.3d 25, 31, 47 (1st Cir. 2002); Virmani v. Novant Health Inc., 259 F.3d 284, 291-2 (4th Cir. 2001). Ruling on the merits of claims that have been immunized seems pertinent only to claims for attorneys' fees by successful defendants. That collateral issue is not before me. Since I conclude that all claims have been immunized, as the result of my conclusion that there has been HCQIA compliance, I elect not to pursue analysis further.
Consequently, after viewing the facts in the best light for plaintiff, it is clear that no reasonable jury could have found for plaintiff under the applicable law, and that defendants are therefore entitled to judgment as a matter of law.
Accordingly, it is hereby
ORDERED that defendants' motion for summary judgment (ECF doc. 75) is GRANTED. It is further
ORDERED that defendants' motion to deem uncontroverted facts admitted (ECF doc. 95) is DENIED.