Opinion
No. 105,468.
2012-10-5
Victor HILDYARD, II, M.D., Appellant, v. CITIZENS MEDICAL CENTER, a Kansas Non–Profit Corporation, Appellee.
Appeal from Thomas District Court; Jack L. Burr, Senior Judge, assigned. Shannon L. Holmberg and Michael R. O'Neal, of Gilliland & Hayes, P.A. of Hutchinson, for appellant. Harold S. Youngentob and Mary E. Christopher, of Goodell Stratton Edmonds & Palmer, LLP, of Topeka, for appellee.
Appeal from Thomas District Court; Jack L. Burr, Senior Judge, assigned.
Shannon L. Holmberg and Michael R. O'Neal, of Gilliland & Hayes, P.A. of Hutchinson, for appellant. Harold S. Youngentob and Mary E. Christopher, of Goodell Stratton Edmonds & Palmer, LLP, of Topeka, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Victor Hildyard, II, M.D., appeals an entry of summary judgment for Citizens Medical Center, Inc. (CMC). This litigation concerns CMC's termination of the doctor's privileges to practice medicine at CMC. The district court held that CMC had immunity from damages, had not entered into a contract with Dr. Hildyard, and was not liable under antitrust laws. We affirm the district court's judgment.
Factual and Procedural Background
Preliminarily, the district court found the facts were uncontroverted. At the summary judgment hearing, counsel agreed the facts were essentially uncontroverted. As a result, we summarize the case from the parties' uncontroverted facts.
CMC operates three medical facilities in Colby—a primary care clinic, a senior living center, and a hospital. The hospital's medical staff practices under “Medical Staff Bylaws.” These bylaws provide a hearing whenever privileges of a medical staff member are suspended or terminated.
CMC also has its own bylaws. The CMC bylaws establish a board of trustees with the duty, among others, of selecting “a medical staff which shall consist of the physicians and dentists entitled to practice in the Facilities of [CMC] under Medical Staff Bylaws approved by the Board of Trustees.” The CMC bylaws also state: “The power of the Board of Trustees to adopt or amend Medical Staff Bylaws ... shall not be dependent upon ratification by the Medical Staff. In no event shall such Medical Staff Bylaws be considered a contract or to give rise to any contractual rights.” The medical staff bylaws do not contain this language excluding contractual rights.
The hospital also has a hostile work environment policy. Under that policy, any employee of the hospital may complain of disruptive conduct. A complaint initiates a disciplinary process with increasingly formal proceedings.
On April 25, 2002, a registered nurse employed in a supervisory position at the hospital made an oral complaint against Dr. Hildyard. The nurse then submitted a written and notarized complaint “concerning Dr. Hildyard's offensive language and disruptive conduct in the hospital.” On the same day, CMC's chief executive officer (CEO) summarily suspended Dr. Hildyard's privileges and initiated an investigation under the hostile work environment policy.
On April 27–28, 2002, the nurse complainant began writing a suicide note but then went to the hospital's emergency room. She later retracted her complaint both orally and in writing. Subsequently, the district court set aside the summary suspension of Dr. Hildyard's privileges in Case No. 02–C–67, and Dr. Hildyard returned to the medical staff. Nevertheless, CMC retained the services of Paula Roberts Buchele, “an independent human resources consultant,” to investigate the nurse's complaint.
Eventually, the nurse repudiated her retraction in a letter to Buchele. The nurse now said her initial complaint was “true.” On July 8, 2002, Buchele submitted a letter summarizing her investigation. Buchele disregarded four of the registered nurse's allegations because they concerned patient care, which was beyond Buchele's charge. Buchele found seven of the remaining allegations were substantiated, three were inconclusive, and three were unsubstantiated.
In her report, Buchele stated among other things that Dr. Hildyard “acknowledges calling female staff” certain names which she specifically identified. For purposes of this opinion, suffice it to say these names are noteworthy for their inflammatory and highly derogatory characterizations of women. Buchele also substantiated that employees had heard Dr. Hildyard call coworkers names disparaging their intelligence in highly offensive ways. She substantiated that Dr. Hildyard “jokes with female employees in a manner that can be construed as sexual connotations” and that he pinches employees, puts them in headlocks, and gives bear hugs. She reported that “[s]ome employees, both male and female, find Dr. Hildyard's touching, joking and teasing offensive and unwanted.”
CMC also consulted with three physicians regarding Dr. Hildyard's behavior: a family practitioner from Topeka, a retired surgeon from Wichita, and a retired family practitioner from Dodge City. “All three physicians concurred that Dr. Hildyard's behavior ... was unacceptable in and disruptive to the hospital setting. The consulting physicians also concurred that Dr. Hildyard should receive comprehensive medical and neuropsychiatric examinations and should be required to participate in the Colorado Personalized Education for Physicians Program.”
On September 3, 2002, CMC officials and the consulting physicians met with Dr. Hildyard. Dr. Hildyard was asked “to commit to seeking assistance with correcting his behavior and language that continued to threaten the hospital's operations and quality of patient care.” Dr. Hildyard's counsel responded by letter calling the proposal “ ‘totally unacceptable’ “ and announcing his intent to pursue the doctor's “rights to a hearing and appeal.” The hearing and appeal are described below in the analysis section.
On April 10, 2003, CMC terminated Dr. Hildyard's privileges. Over 3 years later, on August 14, 2006, the Kansas Board of Healing Arts (Board) revoked Dr. Hildyard's license to practice medicine. The Board found Dr. Hildyard “ ‘does not dispute and does not challenge the Presiding Officer's findings that he used vulgar and inappropriate language, inappropriate sexual gestures, inappropriate touching, sudden and inappropriate outbursts of anger, and abusive and profane language in front of subordinates and patients, on multiple occasions.’ “
Dr. Hildyard appealed the Board's suspension of his license to the district court, but it affirmed the Board's action. Dr. Hildyard appealed to this court, but he agreed to dismiss the appeal under a consent order. The consent order required in part that Dr. Hildyard would “ ‘complete an educational course on disruptive behavior offered by an organization approved by the Board.’ “ Based on this requirement and restrictions placed on Dr. Hildyard's practice, the Board stayed the revocation of his license.
In the meantime, Dr. Hildyard filed the present lawsuit. In Count I, he alleged that by “failing to afford [him] his due process rights as guaranteed by [CMC's] [b]ylaws and [m]edical [s]taff [b]ylaws, [CMC] breached its contract.” Dr. Hildyard alleged he had “suffered economic damages including, but not limited to, loss of income from his medical practice, disruption of patient care, legal defense costs, and loss of economic opportunity.”
In Count II, Dr. Hildyard made a claim under the Kansas Restraint of Trade Act (KRTA), K.S.A. 50–101 et seq. He pled in conclusory fashion that CMC's violation of the KRTA “caused damages ... including, but limited to, ... lost income of his medical practice, disruption of patient care, legal defense costs, and loss of economic opportunity.”
Subsequently, CMC moved for summary judgment. CMC's statement of uncontroverted facts clarified the doctor's KRTA claim. Dr. Hildyard was a partner in the Colby Medical & Surgical Center and part-owner of Medical Arts, Inc. Dr. Hildyard had alleged in discovery that CMC used the peer review process to “ ‘shift volume’ “ from one of these entities and that CMC had cancelled a contract with the other entity.
In response, CMC claimed immunity under K.S.A. 65–442 and the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. § 11101 (2006)et seq. CMC also argued: “The underlying basis for [Dr. Hildyard's] contract claim is the supposition that medical staff bylaws gave rise to a contract. They explicitly state, however, that the medical staff bylaws ‘are not a contract and do not give rise to any contractual right.’ “ In fact, this provision is found in the CMC bylaws, not the medical staff bylaws.
The district court held that CMC was immune under K.S.A. 65–442. The district court also determined that CMC was immune from money damages under the HCQIA. The district court then addressed the contract claim:
“The premise outlined by the doctor is based on the opinion that medical staff bylaws constitute a contract between the doctor and hospital. The argument of the doctor however requires him to overcome the hurdle that is presented by the bylaws themselves which state that they ‘are not a contract and do not give rise to any contractual right.’ The bylaws in this case would indicate no ambiguity and it is difficult to imagine how they can be interpreted to give rise to a contractual right.”
Finally, the district court addressed the KRTA claim, holding that the antitrust claim was barred by the HCQIA. Dr. Hildyard filed a timely appeal.
After appellate oral arguments, on July 11, 2012, CMC filed a suggestion of death upon the record advising of the death of Dr. Hildyard on July 3, 2012. See K.S.A.2011 Supp. 60–225(a)(1). On September 20, 2012, the Estate of Victor H. Hildyard, II, by and through Brenda K. Hildyard, Administrator for the Estate of Victor H. Hildyard, II, filed a motion to substitute the estate as a party to this appeal. CMC did not object. The motion was granted.
Immunity
Dr. Hildyard contends CMC was not immune under K.S.A. 65–442 and the HCQIA. Our standard of review of summary judgment is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to dispute must be material to the conclusive issues in the case. On appeal the court applies the same rules, and where the court finds that reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Osterhaus v. Toth, 291 Kan. 759, Syl. ¶ 1, 249 P.3d 888 (2011).
To the extent it is necessary to interpret statutes, our review is unlimited. See Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). The ultimate question of immunity is also a question of law subject to unlimited review. See Bryan v. James E. Holmes Regional Medical Center, 33 F.3d 1318, 1332 (11th Cir.1994), cert. denied514 U.S. 1019 (1995); Huffmier v. Hamilton, 30 Kan.App.2d 1163, 1165, 57 P.3d 819 (2002), rev. denied 275 Kan. 964 (2003).
We will discuss the standard of review for HCQIA cases separately when that statute is analyzed. K.S.A. 65–442
K.S.A. 65–442(a) provides:
“There shall be no liability on the part of, and no action for damages shall arise against, any duly appointed member of the governing board or the duly appointed member of a committee of the medical staff of a licensed medical care facility for any act, statement or proceeding undertaken or performed within the scope of the functions and within the course of the performance of the duties of such committee of the medical staff if such member acted in good faith and without malice, and the medical staff operates pursuant to written bylaws that have been approved by the governing board of the medical care facility.”
In Donnell v. HCA Health Services of Kansas, Inc., 29 Kan.App.2d 426, 433, 28 P.3d 420,rev. denied 272 Kan. 1417 (2001), our court observed that K.S.A. 65–442 provides “immunity ... as long as the actions by the peer review group were taken in good faith and without malice.” Because the doctor in Donnell did “not even contend that the defendants acted in bad faith and with malice,” and because “there is absolutely no evidence in the record which would indicate that the defendants acted in bad faith and maliciously,” the defendants in Donnell were immune and the trial court properly granted summary judgment. 29 Kan.App.2d at 434.
Unlike the physician in Donnell, however, Dr. Hildyard alleges bad faith and malice. The question, therefore, turns on evidence. The district court found “[t]he evidence ... indicates no bad faith or malice on the part of the hospital.” CMC agrees on appeal, contending Dr. Hildyard “cites no specific evidence demonstrating either ... bad faith or ... malice.”
Dr. Hildyard made several allegations in opposition to summary judgment that arguably related to his claim of CMC's bad faith or malice. For example, the doctor noted he had practiced in Colby with privileges at the hospital since 1974 and had no complaints about his behavior. Moreover, the CEO had never observed him act inappropriately, except for using profanity, and the CEO had never counseled him about his language. Dr. Hildyard asserted that the CEO knew the nurse in question had made uncorroborated complaints against other individuals. Still, the CEO, according to the nurse, upon being told of her allegations, said, “ ‘This is good, we can now get rid of that bastard. This will end his power. You have to write this all up.’ “
Moreover, just before Buchele began her investigation, a memorandum circulated to CMC employees which stated they “ ‘must avoid situations in which their personal interests or views could conflict with the interests of the organization.’ “ The memo warned employees to “ ‘avoid activities that would have a negative impact on the performance of their job or conflict with their obligation to [CMC] or in any way negatively impact the organization's reputation in the community.’ “
Another registered nurse at the hospital denied that Dr. Hildyard had acted inappropriately and blamed the “hostile work environment at the hospital” on the “ ‘administrative culture.’ “ This nurse said hospital staff was afraid, based on the memo which circulated before Buchele's investigation, that they would lose their jobs “if they didn't cooperate in the investigation and discipline of Dr. Hildyard.” Dr. Hildyard further alleged that “29 nurses signed a petition saying they did not support the allegations against Dr. Hildyard, but were afraid to have their names become known [ sic ] .”
Finally, Dr. Hildyard asserted that he was summarily suspended even though other doctors had not been suspended for disciplinary incidents, including the incident which prompted the hostile work environment policy. After Dr. Hildyard returned to work on May 2, 2002, the hospital CEO heard no complaints and knew of no witness to additional inappropriate language by the doctor.
Doctor Hildyard did not need clear and convincing evidence of bad faith or malice to survive summary judgment. See Rebarchek v. Farmers Co-op Elevator & Mercantile Ass'n, 272 Kan. 546, 551–52, 35 P.3d 892 (2001); Linden Place v. Stanley Bank, 38 Kan.App.2d 504, 509, 167 P.3d 374 (2007). In a case applying K.S.A. 65–442 in the context of a defamation suit over comments made in a hospital's quality assurance committee, our Supreme Court also cautioned against determining malice on summary judgment. See Smith v. Farha, 266 Kan. 991, 997–98, 974 P.2d 563 (1999). Considering Dr. Hildyard's allegations in the light most favorable to him, he put into contention whether CMC had acted in good faith and without malice. We conclude the district court erred in granting summary judgment to CMC based on a finding of immunity under K.S.A. 65–442. HCQIA
Next, we turn to the immunity provisions of the HCQIA. Unlike K.S.A. 65–442, this federal law applies an objective standard and the subjective motivations of CMC's agents are irrelevant. See Poliner v. Texas Health Systems, 537 F.3d 368, 377 (5th Cir.2008); Lee v. Trinity Lutheran Hosp., 408 F.3d 1064, 1072 (8th Cir.2005); Brader v. Allegheny General Hosp., 167 F.3d 832, 840 (3d Cir.1999); Austin v. McNamara, 979 F.2d 728, 734 (9th Cir.1992).
Under the HCQIA, CMC was immune from “damages under any law of the United States or of any State,” 42 U.S.C. § 11111(1) (2006), if it took action:
“(1) in the reasonable belief that the action was in the 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).” 42 U.S.C. § 11112(a) (2006).
Importantly, under this federal law, CMC presumptively met these objective standards “unless the presumption is rebutted by a preponderance of the evidence.” 42 U.S.C. § 11112(a).
CMC asks us to apply a “unique standard of review” and quotes a federal case in support:
“Due to the presumption of immunity under the HCQIA, a court applies an ‘unconventional standard in determining’ whether summary judgment is appropriate—‘whether a reasonable jury, viewing all facts in a light most favorable to [the doctor], could conclude that he has shown, by a preponderance of the evidence, that [the hospital's] actions fell outside the scope of section 11112(a). [Citation omitted.]’ “ Wahi v. Charleston Area Medical Center, Inc., 562 F.3d 599, 607 (4th Cir.2009).
The HCQIA summary judgment standard (which we will call it here) is applied in the vast majority of HCQIA cases at both federal and state levels. See, e.g., Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461, 468 (6th Cir.2003); Sugarbaker v. SSM Health Care, 190 F.3d 905, 912 (8th Cir.1999); Brader, 167 F.3d at 839;Bryan, 33 F.3d at 1333;Austin, 979 F.2d at 734;Gureasko v. Bethesda Hosp., 689 N.E.2d 76, 81 (Ohio App.1996); Misischia v. St. John's Mercy Med. Center, 30 S.W.3d 848, 858 (Mo.App.2000); McLeay v. Bergan Mercy Health Sys., 271 Neb. 602, 609–10, 714 N.W.2d 7 (2006); Meyer v. Sunrise Hosp., 22 P.3d 1142, 1149 (Nev.2001); Summers v. Ardent Health Services, LLC, 150 N.M. 123, 129, 257 P.3d 943 (2011); Peyton v. Johnson City Medical Center, 101 S.W.3d 76, 83 (Tenn.App.2002). This specialized summary judgment standard had its start in Austin, a 1992 Ninth Circuit Court of Appeals decision: “Might a reasonable jury, viewing the facts in the best light for Austin, conclude that he has shown, by a preponderance of the evidence, that the defendant's actions are outside the scope of § 11112(a)?” 979 F.2d at 734.
We will first consider CMC's claim that the HCQIA summary judgment standard is unique. In this regard, we are more concerned with the specific mention of the jury and the evidentiary standard applied by the jury. This is the facially distinguishing characteristic of the HCQIA summary judgment standard when compared to the general summary judgment standard applied in both federal and state courts. See Dish Network Corp. v. Arch Specialty Ins. Co., 659 F.3d 1010, 1015 (10th Cir.2011); Osterhaus, 291 Kan. 759, Syl. ¶ 1.
The Court of Appeals of Maryland has interpreted the HCQIA summary judgment standard to require an actual weighing of the evidence:
“This approach to summary judgment—as articulated by the Austin court and its progeny, namely that the non-movant must rebut the statutory presumption by a preponderance of the evidence,—entails a kind of weighing of the evidence. The trial judge must consider the evidence the non-movant has proffered to determine whether the preponderance standard has been met, thereby effectively creating a paper trial. Indeed, such a transformation of the summary judgment process was warned against by Justice Brennan in dissent in Anderson v. Liberty Lobby, 477 U.S. 242, 126 S.Ct. 2505, 91 L.Ed.2d 202 (1986)....
“To be sure, placing the non-movant in the position of rebutting the statutory presumption by a preponderance of the evidence, as Austin teaches, in effect, takes the burden of persuasion applicable at trial and engrafts it onto summary judgment procedure.” Goodwich v. Sinai Hosp. of Baltimore, 343 Md. 185, 204–05 n. 22, 680 A.2d 1067(1996).
After careful analysis of Austin and its progeny, we respectfully disagree with the Maryland court. In our opinion, we should proceed no differently under the HCQIA summary judgment standard than we would under a general summary judgment standard which incorporates a presumption.
The reference to a jury in Austin was not unique to the HCQIA summary judgment standard. In the same case, just before stating the HCQIA summary judgment standard, the Austin court stated the general summary judgment standard: “We review the grant of summary judgment de novo and should reverse if a reasonable jury, viewing the facts in the light most favorable to the nonmoving party, might return a verdict in that party's favor.” 979 F.2d at 733. Thus, the Austin court simply placed the evidentiary standard required by the HCQIA—preponderance of the evidence—within the existing general summary judgment standard.
The general summary judgment standard used in Austin was not substantially different from that used in other cases, its mention of a jury notwithstanding. Austin cited T.W. Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 631 (9th Cir.1987), which had interpreted Fed. R. Civ. Proc. 56 in light of Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Austin, 979 F.2d at 733–34.Anderson considered whether the clear and convincing standard applied at trial in libel actions also applies on summary judgment. The United States Supreme Court noted that “at the summary judgment stage the judge's function is not ... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” 477 U.S. at 249. The Supreme Court also “noted that the ‘genuine issue’ summary judgment standard is ‘very close’ to the ‘reasonable jury’ directed verdict standard.” 477 U.S. at 251. The Supreme Court concluded, therefore, that the “inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” 477 U.S. at 251–52.
Developing this notion further, the Supreme Court stated:
“If the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a materia! fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.” 477 U.S. at 252.
In short, the jury was mentioned in Anderson to point out that a trial court considering summary judgment must consider the evidentiary standard the jury would apply, at least in libel cases. 477 U.S. at 252; see also Baumann v. Excel Industries, Inc., 17 Kan.App.2d 807, 815, 845 P.2d 65,rev. denied 252 Kan. 1091 (1993) (“[T]he application of a clear and convincing evidence standard at the summary judgment stage is unique to libel cases because First Amendment rights are at issue.”). But the Supreme Court still made clear in Anderson that the trial court was not to weigh the evidence, and the Ninth Circuit in T.W. Elec. Service, the case cited for the general summary judgment standard in Austin, was no less clear. In T.W. Elec. Service the Ninth Circuit rejected any interpretation of Anderson which would change “the longstanding rules that the judge should neither engage in credibility determinations nor weigh the evidence” or which would require the judge to “ask whether a jury could find in favor of the nonmoving party viewing all of the evidence.” 809 F.2d at 631 n. 3. As the Ninth Circuit noted, “such a construction would contradict the clear instruction [in Anderson ] that a court may not weigh the evidence or assess its credibility.” 809 F .2d at 631 n. 3.
Turning now to the evidentiary standard, we believe it again is not unique to the HCQIA standard of review. The typical evidentiary standard in civil cases is preponderance of the evidence. See In re Estate of Stratmann, 248 Kan. 197, 202, 806 P.2d 459 (1991). Since a jury would apply preponderance of the evidence in any event, its mention in the HCQIA summary judgment standard does not distinguish it from the general summary judgment standard.
Our conclusion is that Austin's statement of the HCQIA summary judgment standard was not unique aside from its integration of a presumption. The references to a jury made sense in the context of Anderson, where the Supreme Court was considering whether the evidentiary standard for trial affected summary judgment. But that did not transform the standard itself, as T.W. Elec. Service stated. And where the HCQIA applies, as in Austin, the evidentiary standard of preponderance of the evidence is no different from the “run-of-the-mill civil case” mentioned in Anderson.
Our analysis is supported by Singh v. Blue Cross/Blue Shield of Mass., 308 F.3d 25 (1st Cir.2002), where a doctor argued that the HCQIA summary judgment standard violated his right to a jury trial. If the Maryland court's analysis in Goodwich were accurate, the argument would seem persuasive. A court which weighed the evidence on summary judgment would also invade the province of the jury. See Wierman v. Casey's General Stores, 638 F.3d 984, 993 (8th Cir.2011) (“Credibility determinations and the weighing of the evidence are jury functions, not those of the judge.”); Scott's Liquid Gold, Inc. v. Lexington Ins. Co., 293 F.3d 1180, 1183 (10th Cir.2002) (“The court's function at the summary judgment stage is not to weigh the evidence but merely decide whether there is a genuine issue of fact for trial.”).
But the United States Court of Appeals for the First Circuit rejected the doctor's argument, demonstrating that summary judgment under the HCQIA is not fundamentally different apart from the presumption:
“With the benefit of the statutory presumption, [the defendant] is relieved of the initial burden of providing evidentiary support for its contention at summary judgment that there is no genuine issue of material fact on its compliance with the HCQIA standards. For [the doctor], however, the burden of defeating summary judgment remains similar to the burden faced by any plaintiff confronted with a properly supported motion for summary judgment. Summary judgment would not be proper if [the doctor] raised a genuine issue of fact material to the determination of whether [defendant] met one of the HCQIA standards during its peer review. Therefore, the statute does not unconstitutionally deny [the doctor] his right to a jury trial.” (Emphasis added.) 308 F.3d at 33.
We find support for our analysis in a case based on a Kansas statute which, like the HCQIA, establishes a presumption with a preponderance of the evidence standard—Miller v. Lee Apparel Co., 19 Kan.App.2d 1015, 881 P.2d 576,rev. denied 256 Kan. 995 (1994). The statute at issue in Miller was K.S.A. 60–3304(a): “When the injury causing aspect of the product was, at the time of manufacture, in compliance with ... standards ..., the product shall be deemed not defective ..., unless the claimant proves by a preponderance of the evidence that a reasonably prudent product seller could and would have taken additional precautions.” 19 Kan.App.2d 1015, Syl. ¶ 3. Because the product in Miller met the standards, the plaintiff had to “rebut the presumption of nondefectiveness to survive [the defendant's] summary judgment motion.” 19 Kan.App.2d at 1026. To decide whether plaintiff had done so, our court applied the general summary judgment standard. 19 Kan.App.2d at 1022. It concluded summary judgment was proper because “there was absolutely no testimony ... that a reasonably prudent manufacturer could and would have taken additional precautions.” 19 Kan.App.2d at 1027. In other words, there was no need for a trial.
The Miller opinion does not suggest a court should apply the preponderance of the evidence standard as a jury would, i.e., by weighing the evidence. Instead, the opinion shows this court following the Kansas summary judgment statute, K.S.A. 60–256, which was identical to Fed. Rule Civ. Proc. 56, or nearly so, when Anderson and T.W. Elec. Service were decided. See Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 307, 756 P.2d 416 (1988); Mays v. Ciba–Geigy Corp., 233 Kan. 38, 42, 661 P.2d 348 (1983); Crooks v. Greene, 12 Kan.App.2d 62, 64, 736 P.2d 78 (1987). We should do the same in the present case.
This brings us to the helpful discussion of the HCQIA summary judgment standard in Reyes v. Wilson Memorial Hosp., 102 F.Supp.2d 798 (S.D.Ohio 1998). As the federal district court noted, “[i]n permitting the issue of HCQIA immunity to be resolved on summary judgment, ... courts have not always been careful in their explanation of the analysis involved.” 102 F.Supp.2d at 810. The federal district court surveyed federal circuit decisions and stated:
“In granting motions for summary judgment, the courts in each of the aforementioned decisions have determined that the plaintiff failed to demonstrate the existence of genuine issues of material fact on each of the four elements contained within [42 U.S.C.] section 11112(a). In other words, these courts concluded, as a matter of law, that the defendants in question had acted ‘reasonably’ and that the procedures in question contained ‘adequate’ protections for the physicians in question.
“These courts have been able to declare that the defendants' actions were reasonable, as a matter of law, because of the statutory presumption. Reviewing the decisions, it is apparent that the courts have required the production of evidence by the plaintiff that would create a triable issue on one of the four elements in section 11112(a). Absent the production of such evidence, there is no need for a trial because of the presumption that the defendants are entitled to the immunity afforded by the statute. [Citation omitted.] Again, the statute presumes that qualified defendants have acted in accordance with the four standards set forth in section 11112(a). It is a plaintiffs burden to adduce evidence sufficient to create a genuine issue of material fact regarding that presumption. If a plaintiff does not have any such evidence, there is no genuine issue of material fact and, consequently, there is no need for atrial.” 102 F.Supp.2d at 810–11.
In summary, we conclude a plaintiff in a HCQIA case bears a burden to come forward with evidence creating a genuine issue of material fact regarding at least one of the objective standards listed at 42 U.S.C. § 11112(a). A court should consider this evidence in the light most favorable to the plaintiff. If reasonable minds could disagree regarding the evidence, the presumption does not apply and the matter should go to trial. At trial, “questions ‘such as whether the disciplined physician was given adequate notice of the charge and the appropriate opportunity to be heard’ may be submitted to the jury on special interrogatories. [Citation omitted .]” Reyes, 102 F.Supp.2d at 810. But the jury decides only such “subsidiary issues,” and the “ultimate question of whether a defendant is entitled to immunity” remains a question of law for the court. 102 F.Supp.2d at 810.
Having determined the appropriate standard of review, we next address the merits. Each of the four objective standards that must be met in order for immunity to apply is protected by the presumption unless rebutted by the plaintiff. In the present case, the district court ruled Dr. Hildyard had failed “to meet the burden” required “to defeat the presumption that professional review action undertaken by [CMC] falls within the scope of those actions contemplated by HCQIA.” Our analysis is complicated, however, by Dr. Hildyard's failure to brief the four objective standards individually. Instead, Dr. Hildyard broadly argues that he overcame the presumption and then discusses the evidence generally.
We are convinced, however, that Dr. Hildyard's arguments lack substantive merit. We will group his arguments in the order he briefed them and discuss each group under each of the four objective standards,
(1) In the Reasonable Belief that the Action was in the Furtherance of Quality Health Care
This first standard was met if one could reasonably conclude from the information available at the time that the disciplinary action would restrain incompetent practice or otherwise protect patients. See Meyers, 341 F.3d at 468.
Dr. Hildyard complains he was summarily suspended after practicing “without incident for 28 years in the Colby community.” Even if the CEO did not know of allegations against Dr. Hildyard before the nurse's complaint, as the doctor alleges, the CEO had reason to act once the complaint was made. CMC produced evidence that “intimidating and disruptive behavior by physicians” could damage health care in hospital settings. Dr. Hildyard did not controvert this evidence other than noting the authorities cited by CMC postdated his suspension.
Dr. Hildyard argues he was suspended “with lightening speed despite no allegations of patient harm,” but no actual harm to patients was required. See Meyers, 341 F.3d at 468. “ ‘Quality health care’ is not limited to clinical competence, but includes matters of general behavior and ethical conduct.” 341 F.3d at 469. “[T]emper tantrums, ... coercive tactics,” and an “inability to work with others” all support action “despite the fact that no patients were actually injured.” 341 F.3d at 469.
Dr. Hildyard also asserts that the CEO acted out of spite, which could suggest a motive other than patient care. But under the objective standards, “the good or bad faith of the reviewers is irrelevant.” Brader, 167 F.3d at 840. Considering the facts known to the CEO at the time, we conclude that suspension was reasonable.
(2) After a Reasonable Effort to Obtain the Facts of the Matter
This objective standard asks “whether the ‘totality of the process' leading up to the professional review action evinced a reasonable effort to obtain the facts of the matter.” Meyers, 341 F.3d at 469.
Dr. Hildyard raises numerous allegations of bias and taint during the investigation. These “inferences of a conspiracy to oust” him do not “create any genuine issues of fact,” however. See Sugarbaker, 190 F.3d at 914. Once again, “[i]n the HCQIA immunity context, the circuits that have considered the issue all agree that the subjective bias or bad faith motives of the peer reviewers is irrelevant.” 190 F.3d at 914.
The doctor's arguments based on alleged deviations from the medical staff bylaws and the hostile work environment policy are also
“unavailing because HCQIA immunity is not coextensive with compliance with an individual hospital's bylaws. Rather, the statute imposes a uniform set of national standards. Provided that a peer review action defined by the statute complies with those standards, a failure to comply with hospital bylaws does not defeat a peer reviewer's right to HCQIA immunity from damages.” Poliner v. Texas Health Systems, 537 F.3d 368, 380–81 (5th Cir.2008)
If this outcome seems “harsh,” the result is attributable to “Congress' decision that the system-wide benefit of robust peer review in rooting out incompetent physicians, protecting patients, and preventing malpractice outweighs those occasional harsh results; that giving physicians access to the courts to assure procedural protections while denying a remedy of money damages strikes the balance of remedies essential to Congress' objective of vigorous peer review.” 537 F.3d at 381.
Considering the totality of the process, CMC made a reasonable effort to obtain the facts. It retained Buchele and the consulting physicians as experts who evaluated her results and met with Dr. Hildyard. CMC next convened a hearing panel and conducted hearings. Although he argues for procedural flawlessness, which is not required under the HCQIA, Dr. Hildyard does not raise a genuine issue of material fact regarding the reasonableness of CMC's efforts. See Singh, 308 F.3d at 43.
(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
The HCQIA does not require trials as provided in a court of law. Singh, 308 F.3d at 44. Even “a formal hearing” is not “a mandatory condition precedent to satisfying subsection (a)(3).” Wahi, 562 F.3d at 609. The presumption applies so long as the notice and hearing procedures were adequate, or if other procedures were used, they were fair under the circumstances. 42 U.S.C. § 11112(a)(3).
Dr. Hildyard does not contest notice. With respect to the hearing procedures, he argues CMC asked the hearing panel to “essentially abdicate its role to ... Buchele.” The doctor thereby imputes any limitations in Buchele's investigation to the hearings themselves. But the hearings were held separately, rendering any limitations in Buchele's investigation irrelevant without further showing. “ ‘The HCQIA does not require that a professional review body's entire course of investigative conduct meet particular standards in order to be immune from liability for its ultimate decision.’ [Citation omitted.]” Brader v. Allegheny General Hosp., 167 F.3d 832, 842 (3d Cir.1999). Requiring even initial inquiries to meet such standards, “would ... tie the hands of hospitals and force every informal review activity of a doctor ... into time-consuming and (depending on the outcome of the informal review) possibly unnecessary formalized proceedings.” 167 F.3d at 842.
Dr. Hildyard also does not raise a genuine issue of material fact regarding the hearings. The record shows that starting on November 19, 2002, Dr. Hildyard was afforded a prehearing conference followed by 2 full days of hearings. Dr. Hildyard was present and represented by counsel. On January 24, 2003, the hearing panel issued written findings of fact, conclusions, and recommendations.
The hearing panel found Dr. Hildyard had admitted during testimony to:
“ ‘(1) calling a hospital employee [an obscene sexual reference]; (2) stating to a hospital physical therapist while at the hospital, ‘What the [obscenity] are you going to do with her?’'; (3) using obscenities in describing quality of care concerns that he had with hospital ultrasound; (4) using language in the hospital including [vulgar and inflammatory references including highly derogatory descriptions of women]; touching employees on the shoulder but not in a sexual context; (6) occasionally putting employees in head locks; and (7) occasionally giving employees bear hugs.' “
Dr. Hildyard also admitted to using “ ‘inappropriate language on a daily basis at the hospital.’ “
The hearing panel recommended that Dr. Hildyard agree to work cooperatively with others at CMC, to “attend a Professional Boundaries Program,” and to serve a 14–day suspension, which would include the time spent attending the program. The panel recommended that if Dr. Hildyard did not agree, his medical staff privileges should be terminated.
Dr. Hildyard appealed the panel's adverse decision as provided under the medical staff bylaws. On April 8, 2003, an “Appellate Review Committee” met to consider the appeal. This committee recommended that Dr. Hildyard's privileges be suspended. On April 10, 2003, CMC's board of trustees notified Dr. Hildyard of its decision to terminate his privileges.
Many of the objections Dr. Hildyard raises to these procedures have already been addressed. Dr. Hildyard objected below that a member of CMC's medical staff was omitted from the hearing panel contrary to the medical staff bylaws. But CMC had just three medical staff—including Dr. Hildyard—and the other two were his partner and a doctor who worked for Dr. Hildyard and his partner. The omission was therefore reasonable under the circumstances. Dr. Hildyard also raised no contemporaneous objection to the members who actually sat on the panel.
On appeal, however, Dr. Hildyard notes the hearing panel included two of CMC's trustees. He claims that because his “direct economic competitors were employed by” CMC's primary care clinic, the trustees were similarly his direct economic competitors. This assumes CMC was itself the doctor's direct economic competitor, which is unlikely since the doctor enjoyed privileges at CMC. Especially considering Dr. Hildyard's lack of objection during the hearing panel's work, we see no triable issue of fact on the adequacy of the hearing panel's composition.
Finally, Dr. Hildyard refers to a denial of due process, but 42 U . S.C. § 11112(a)(3)is the “ ‘due process requirement’ “ of the HCQIA. Wahi, 562 F.3d at 609 (quoting H.R.Rep. No. 99–903, at 10 [1986], as reprinted in 1986 U.S.C.C.A.N. 6384, 6393). Since the hearing procedures complied with § 11112(a)(3), Dr. Hildyard had due process for purposes of immunity from damages. And since Dr. Hildyard seeks only damages, that is sufficient. The doctor has not accessed “the court for other relief preventive of an abusive peer review.” Poliner, 537 F.3d at 381.
(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 Three
The analysis for § 11112(a)(4) closely tracks that of § 11112(a)(1). See Sugarbaker, 190 F.3d at 916. With respect to whether a particular action was warranted by the facts, “HCQIA clearly grants broad discretion to hospital boards with regard to staff privileges decisions.” Bryan v. James E. Holmes Regional Medical Center, 33 F.3d 1318, 1337 (11th Cir.1994), cert. denied514 U.S. 1019 (1995).
Dr. Hildyard “has not shown that the facts” before the hearing panel “were ‘so obviously mistaken or inadequate as to make reliance on them unreasonable.’ [Citation omitted.]” See Meyers, 341 F.3d at 471. Dr. Hildyard complains the hearing panel “was repeatedly presented with evidence of how the [nurse] [c]omplainant had lied numerous times,” but it was not unreasonable for the hearing panel to act on allegations also supported by other evidence or by Dr. Hildyard's own admissions.
Even if the conclusions of the hearing panel or appeal committee were incorrect, Dr. Hildyard has not overcome the presumption they were reasonable, which is the test here. See Brader, 167 F.3d at 841. And the findings of fact and conclusions of law produced by the presiding officer in the subsequent medical license revocation proceeding, which Dr. Hildyard quotes, were obviously not before the hearing panel or appeal committee. The doctor therefore properly concedes they are “not dispositive in this case.”
Whether Dr. Hildyard's behavior warranted termination of privileges was a matter within CMC's discretion. Dr. Hildyard failed to produce evidence raising a genuine question of material fact regarding the reasonableness of CMC's decision. ‘ “[T]he intent of [the HCQIA] was not to disturb, but to reinforce, the preexisting reluctance of courts to substitute their judgment on the merits for that of health care professionals and of the governing bodies of hospitals in an area within their expertise.” ‘ Lee v. Trinity Lutheran Hosp., 408 F.3d 1064, 1073 (8th Cir.2005).
Contract
Dr. Hildyard also contends that CMC breached its contractual duty to provide a fair hearing. He claims a “vested property interest through his privileges/the medical staff bylaws,” but also that CMC failed to afford him “due process rights ... as guaranteed by [CMC's] [b]ylaws and [m]edical [s]taff [b]ylaws.” Thus, Dr. Hildyard argues alternatively under the medical staff bylaws and the CMC bylaws. Because the underlying facts are not disputed and the bylaws are written, our review is de novo. See Wittig v. Westar Energy Inc., 44 Kan.App.2d 216, 221, 235 P.3d 535 (2010), rev. denied 292 Kan. 969 (2011).
This issue is moot given our decision on HCQIA immunity. Appellate courts generally do not consider moot issues. Smith v. Martens, 279 Kan. 242, Syl. ¶ 1, 106 P.3d 28 (2005). We will nevertheless briefly consider Dr. Hildyard's arguments to explain their lack of substantive merit.
Dr. Hildyard relies in part on Ferraro v. Board of Trustees of Labette Cty, Med., 106 F.Supp.2d 1195 (D.Kan.2000), a 42 U.S.C. § 1983 civil rights action. The case is inapposite because the federal district court “assume[d], without deciding, that plaintiff had a property interest” in his employee status as a registered nurse anesthetist. 106 F.Supp.2d at 1201. In the present case, whether Dr. Hildyard had a property interest is the critical question. Dr. Hildyard was also not an employee, unlike the nurse in Ferraro. The doctor had privileges at CMC, described as follows in the medical staff bylaws: “Membership on the [m]edical [s]taff of [CMC] is a privilege which shall be extended only to professionally competent practitioners who continuously meet the qualifications, standards and requirements set forth in these [b]ylaws.”
Research located no Kansas cases deciding whether hospital privileges are subject to contractual rights. See In re K.M.H, 285 Kan. 53, 60, 169 P.3d 1025 (2007) (contracts are governed by state law), cert. denied555 U.S. 937 (2008). “The general rule is that hospital bylaws can constitute a contract between a hospital and its staff.” Seitzinger v. Community Health Network, 676 N.W.2d 426, 433 (Wis.2004). “Whether a set of bylaws constitutes a contract ‘turns on whether the elements of a contract are present.’ [Citation omitted.]” O'Byrne v. Santa Monica–UCLA Medical Center, 94 Cal.App. 4th 797, 808, 114 Cal.Rptr.2d 575 (2001). A binding contract may be formed “ ‘where there can be found in the bylaws an intent by both parties to be bound’ [Citation omitted].” Badri v. Huron Hosp., 691 F.Supp.2d 744, 770 (N.D.Ohio 2010).
However, a “substantial minority of jurisdictions ... find that bylaws that are subject to the ultimate authority of the hospital do not constitute a binding agreement between the medical staff and the hospital. [Citations omitted.]” Zipper v. Health Midwest, 978 S.W.2d 398, 416 (Mo.App.1998). “These jurisdictions reason that because hospitals have a preexisting legal duty to enact bylaws and enact bylaws without the input of the medical staff, there is no consideration or mutuality of obligation between the parties and, therefore, the hospital bylaws cannot constitute a contract. [Citations omitted.]” 978 S.W.2d at 416; see also Egan v. St. Anthony's Medical Center, 244 S.W.3d 169, 174 (Mo.2008) (noting “a hospital's duty to adopt and conform its actions to medical staff bylaws as required by the regulation is a preexisting duty, and a preexisting duty cannot furnish consideration for a contract”).
We need not decide the rule in Kansas. Although CMC placed contract formation at issue below, Dr. Hildyard alleged no facts in opposition to summary judgment other than the existence of the bylaws themselves. He did not allege that he believed the bylaws formed a contract, much less that CMC believed so. Kansas law requires an intent to be bound and a meeting of the minds on all essential terms of a contract. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 487–88, 15 P.3d 338 (2000); M West, Inc. v. Oak Park Mall, 44 Kan.App.2d 35, 52, 234 P.3d 833 (2010). If Dr. Hildyard had a contract with CMC, he should have provided a factual basis for it, including something of evidentiary value, and then cited the facts on appeal. See Kastner v. Blue Cross & Blue Shield of Kansas, Inc., 21 Kan.App.2d 16, Syl. ¶ 6, 894 P.2d 909,rev. denied 251 Kan. 1092 (1995); Supreme Court Rule 6.02(d) (2011 Kan. Ct. R. Annot. 39). Since he did not do so, we will affirm the district court's ruling, although it ruled on another basis. See U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, Syl. ¶ 1, 205 P.3d 1245 (2009) (“[T]he party moving for summary judgment ... may discharge its obligation by pointing out ... that there is an absence of evidence to support the nonmoving party's case.”); Robbins v. City of Wichita, 285 Kan. 455, 472, 172 P.3d 1187 (2007) (correct result is upheld although trial court ruled on other grounds).
Anti–Trust
According to Dr. Hildyard, the district court held “because only one antitrust statute, K.S.A. 50–112, explicitly refers to physicians and because no Kansas case has explicitly held that antitrust actions are applicable to the practice of medicine, [he] cannot maintain this cause of action.” The district court, however, did not cite K.S.A. 50–112 or any other antitrust statute in its decision. The district court appeared to rule based on the immunity provisions of HCQIA. Since the question concerns statutory interpretation and immunity, our review is unlimited. See Bryan, 33 F.3d at 1332;Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
Dr. Hildyard disputes whether “hospitals are immune from antitrust suits,” but the issue here is whether CMC is immune from damages. We conclude CMC is immune under the HCQIA, even from damages for antitrust violations. Congress enacted HCQIA in part as a response to doctors' antitrust suits against hospitals. Singh v. Blue Cross/Blue Shield of Mass., 308 F.3d 25, 31 (1st Cir.2002).
Affirmed.