Opinion
CIVIL ACTION NO. 02-2636 SECTION "L" (2)
October 31, 2003
ORDER REASONS
Pending before the Court is Defendant Tenet Healthsystem Hospitals, Inc's Renewed Motion for Summary Judgment. For the following reasons the Motion is GRANTED.
I. FACTUAL AND PROCEDURAL BACKGROUND
Dr. Aydin Onel worked as a practicing internist with privileges at NorthShore Regional Medical Center and NorthShore Psychiatric Hospital ("NorthShore") for more than 15 years. On December 23, 2001, Dr. Onel left a colleague's holiday party and was involved in a multiple vehicle accident that took the life of one individual and injured nine others. Dr. Onel was taken to NorthShore Regional Medical Center, the hospital at which he practiced, and was treated for minor injuries. Authorities also drew a blood sample for alcohol analysis to be performed by the Louisiana State Police Crime Laboratory. Once his injuries were treated, Dr. Onel was arrested and charged with vehicular homicide and driving while intoxicated. Media reports blamed Dr. Onel as the cause of the accident and relayed police reports that the accident was alcohol related.
René Goux, the managing officer of NorthShore, was notified of Dr. Onel's admission to the hospital and his arrest. Mr. Goux learned that on the day of the accident Dr. Onel had attended a colleague's holiday party. Mr. Goux also was aware that Dr. Onel had been admonished only months before for verbally abusing a member of the nursing staff. Mr. Goux feared that Dr. Onel might have an alcohol abuse problem and was concerned about permitting Dr. Onel to continue seeing patients after the arrest. Mr. Goux immediately suspended Dr. Onel's clinical privileges at NorthShore.
In a letter dated December 28, 2001, Mr. Goux informed Dr. Onel that he had summarily suspended Dr. Onel's clinical privileges. The letter also informed Dr. Onel of certain procedural rights following his suspension. The letter noted Dr. Onel's right to request an informal interview with the Executive Committee of the Medical Staff under the hospital's medical bylaws. It explained that Dr. Onel would have certain hearing rights depending on the suspension's duration, and that if the suspension remained in effect for longer than 30 days, then the suspension would be reported to the National Practitioner Data Bank as required by federal law.
The Plaintiff responded to Mr. Goux's letter on January 2, 2002, objecting to the suspension and demanding that it be lifted immediately. The next day Mr. Goux reiterated that he had imposed the summary suspension pursuant to the hospital's bylaws and urged Dr. Onel to cooperate with the Physician Health Program and to undergo a substance abuse evaluation. On January 4, 2002, Dr. Onel repeated his demand that the suspension be rescinded and alternatively asserted his procedural rights under the bylaws. Dr. Onel requested that he be granted a hearing pursuant to the bylaws if the investigation did not result in the reinstatement of his privileges.
The Executive Committee extensively discussed Dr. Onel's summary suspension at its January 9, 2002 meeting. The Executive Committee resolved to meet in executive session with an attorney selected by the hospital to discuss the investigation process. The Executive Committee decided to maintain the summary suspension and continue to investigate the matter. On January 25, 2002, Dr. Onel's attorney wrote the Executive Committee and asked what actions the committee had taken regarding the summary suspension. Dr. Onel's attorney also inquired into Dr. Onel's rights to a hearing under the hospital bylaws.
Dr. Onel requested numerous documents from NorthShore on February 1, 2002, including his medical staff and peer review files, Onel suggested that he would request a formal hearing after receiving the documentation. Dr. O'Bryan, Chief Operating Officer of NorthShore, invited Dr. Onel to review the requested information and directed the staff services manager to make the material available to Dr. Onel.
On February 11, 2002, NorthShore's medical staff services manager transmitted an adverse action report regarding Dr. Onel's suspension to the National Practitioner Data Bank, which was required by federal law. Two days later, Dr. Onel's attorney provided NorthShore with a copy of the state crime laboratory's analysis of Dr. Onel's blood sample. Testing revealed that no ethyl alcohol was detected in Dr. Onel's blood at the time of the accident. After reviewing the blood analysis, NorthShore's Chief of Staff notified Dr. Onel on February 21, 2002, that his suspension was revoked and that Dr. Onel was reinstated with full privileges.
Dr. Onel filed suit against the Defendant alleging four causes of action: (1) that the Defendant committed a bad faith breach of the bylaws, which constitute a contract between NorthShore and Dr. Onel; (2) that the summary suspension and other false statements made by NorthShore constitute defamation; (3) that NorthShore's actions constituted an unfair trade practice against Dr. Onel; and (4) that NorthShore intentionally inflicted emotional distress on Dr. Onel.
In December 2002, the Defendant moved for summary judgment invoking the immunity provisions of the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. § 11101 — 11115 (2000). The Court denied the motion without prejudice and provided the Plaintiff with an opportunity to conduct further discovery. The Defendant now renews its motion for summary judgment, raising the immunity provisions of the HCQIA.
II ANALYSIS
A. Summary Judgment Standard
Summary judgment shall be granted only if "the pleadings, dispositions, 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." Fed.R.Civ.P. 65(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 — 50 (1986). The Court must draw all justifiable inferences from the factual record in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986). Once the moving party has shown an absence of evidence to support the non-movant's case, the non-movant must go beyond his mere pleadings and produce specific facts of a genuine issue for trial. Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001). If the non-movant fails to produce specific facts of a genuine issue for trial, the movant is entitled to summary judgment.
"HCQIA immunity is a question of law that the district court may determine on summary judgment." Rogers v. Columbia/HCA of Cent. Louisiana, Inc., 971 F. Supp. 229, 233 (W.D. La. 1997), aff'd by 140 F.3d 1038 (5th Cir. 1998); Bryan v. James E. Holmes Reg'l Med. Ctr., 33 F.3d 1318, 1332-33 (11th Cir. 1994).
B. Defendant's Immunity Under the HCQIA
Congress enacted the HCQIA to provide participants in professional peer review actions with limited immunity from suits for money damages. 42 U.S.C. § 11101 (2000). In relevant part, the statute provides:
If a professional review action (as defined in section 11151(9) of this title) of a professional review body meets all the standards specified in section 11112(a) of this title, except as provided in subsection (b) of this section —
(A) the professional review body,
(B) any person acting as a member or staff to the body,
(C) any person under a contract or other formal agreement with the body, and
(D) any person who participates with or assists the body with respect to the action,
shall not be liable in damages under any law of the United States or of any State (or political subdivision thereof) with respect to the action. 42 U.S.C, § lllll(a)(2000).
This litigation stems from Mr. Goux's decision to suspend Dr. Onel and the Executive Committee's decision to maintain Dr. Onel's summary suspension. The Defendant contends that these decisions constitute professional review actions under § 11151(9), a position that is not challenged by the Plaintiff. The record reveals that the Executive Committee makes all of NorthShore's decisions regarding medical staff privileges, a "professional review activity" under the HCQIA. 42 U.S.C. § 11151(10) (2000), The Executive Committee, which conducts the "professional review activity, is therefore a HCQIA "professional review body." 42 U.S.C, § 11151(11) (2000). The record also indicates that the decisions were "taken or made in the conduct of professional review activity," based on the competence of Dr. Onel, and that the decisions adversely affected Dr. Onel's clinical privileges at NorthShore. 42 U.S.C. § 11151(9) (2000). Mr. Goux's and the Executive Committee's decisions thus are professional review actions for purposes of § lllll(a).
In order for there to be HCQIA immunity, NorthShore's professional review actions must have been taken:
(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)(1-4) (2000).
The HCQIA creates a rebuttable presumption that a professional review action satisfies the four standards set forth in § 11112(a). The statute provides that "[a] professional review action shall be presumed to have met the preceding standards [§ 11112(a) (1 — 4)] necessary for the protection set out in section 11111(a) of this title unless the presumption is rebutted by a preponderance of the evidence." 42 U.S.C. § 11112(a) (2000). Under this unconventional standard, Dr. Onel bears the burden of proving by a preponderance of evidence that the Defendant's peer review process did not satisfy § 11112(a). Rogers, 971 F. Supp. at 232, The question before the Court is whether Dr. Onel "satisfied his burden of producing evidence that would allow a reasonable jury to conclude that [NorthShore's] peer review disciplinary process failed to meet the standards of the HCQIA." Sugarbaker v. SSM Health Care, 190 F.3d 905 (8th Cir. 1999); Brader v. Allegheny Gen. Hosp., 167 F.3d 832, 839 (3d Cir. 1999); Bryan, 33 F.3d at 1334.
1. Reasonable Belief
The Plaintiff has failed to provide rebuttal evidence sufficient to call into question NorthShore's presumptive "reasonable belief that the action was in the furtherance of quality health care." § 11112(a)(1). Other Courts have held that a professional peer review action satisfies the "reasonable belief standard, "if `the reviewers, with the information available to them at the time of the professional review action, would reasonably have concluded that their action would restrict incompetent behavior or would protect patients.'" Rogers, 971 F. Supp. at 234 (quoting from Bryan, 33 F.3d at 1335) (other citations omitted).
Dr. Onel was summarily suspended based upon the information then available to Mr. Goux and North Shore. Dr. Onel was arrested after he had caused a deadly accident, which police and media reports blamed on alcohol. Dr. Onel's behavior, including an incident with a member of NorthShore's nursing staff, supported the concern of Mr. Goux that Dr. Onel might have a substance abuse problem. Dr. Onel had a number of patients in the hospital. Mr. Goux concluded that Dr. Onel's summary suspension and a subsequent investigation were necessary steps to protect patient health. That belief was reasonable.
Dr. Onel's subsequent demonstration that the then-existing evidence of alcohol abuse was incorrect does not render Mr. Goux's belief unreasonable. Such an ex post factual challenge does not question the reasonableness of Mr. Goux's contemporaneous belief that suspending a suspected substance abuser's clinical privileges might protect patient health. Dr. Onel has failed to prove by preponderance of the evidence that the suspension was not taken in the furtherance of quality health care,
2. Reasonable Effort to Obtain Facts
Dr. Onel has failed to rebut the presumption that he was suspended after NorthShore conducted "a reasonable effort to obtain the facts." 42 U.S.C. § 11112(a)(2). Section 11112(a)(2) requires that the Court ask "whether the totality of the process leading up to the Board's `professional review action' . . . evidenced a reasonable effort to obtain the facts of the matter." Mathews, 87 F.3d at 637; Sugarbaker, 190 F.3d at 914. Given the circumstances, Mr. Goux's actions evidence a reasonable effort to obtain the facts that then existed before he summarily suspended Dr. Onel.
Mr. Goux read in the Times Picayune that Dr. Onel had been arrested and charged in what was reportedly a fatal, alcohol related auto accident. The record indicates that the newspaper article accurately described the facts surrounding the accident as they then existed. In addition, Mr. Goux was aware that Dr. Onel recently had been admonished for verbally abusing a member of the nursing staff. Mr. Goux was advised that Dr. Onel was belligerent when admitted to NorthShore on the night of the accident, and that Dr. Onel was arrested, led from the hospital in handcuffs, and incarcerated.
Dr. Onel has provided deposition testimony from the hosts of the Christmas party and the results of the blood test conducted by the Louisiana State Police Crime Laboratory, calling into question the verity of police reports, a Times Picayune story, and the gossip of Dr. Onel's alcohol abuse. Nonetheless, Mr. Goux made the decision to suspend Dr. Onel based on a correct understanding of the factual situation as it then existed. When subsequent laboratory testing demonstrated the absence of alcohol in Dr. Onel's blood, NorthShore promptly revoked Dr. Onel's suspension. The crime laboratory's test results may challenge the veracity of the facts available after the accident, but they do not call into question the reasonableness of Mr. Goux's fact-finding effort conducted prior to the summary suspension.
3. Adequate Notice and Hearing
The HCQIA requires that a professional review action be taken "after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair under the circumstances." 42 U.S.C. § 11112(a)(3) (2000). The Act also contains an emergency provision, that specifically permits summary suspensions "subject to subsequent notice and hearing or other adequate procedures, where the failure to take such an action may result in an imminent danger to the health of any individual." 42 U.S.C. § 11112(c)(2) (2000) (emphasis added); Pfenninger v. Exempla, Inc., 116 F. Supp.2d 1184, 1202 (D. Colo. 2000). The § 11112(c)(2) emergency provision does not require that imminent danger actually exist before a summary restraint is imposed. "It only requires that the danger may result if the restraint is not imposed." Sugarbaker, 190 F.3d at 917 (quoting Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1443 (9th Cir. 1994)).
Dr. Onel argues that the emergency provision does not apply because the accident had nothing to do with patient care or his ability to practice medicine. Dr. Onel argues that prior cases have used the summary suspension provision only following evidence of incompetence in patient care. Although the Plaintiff correctly observes that the summary suspension provision can and has been invoked in cases of physician incompetence in patient care, § 11112(c)(2) is not limited to instances of incompetence in patient care. The emergency provision's language is broad, and permits summary action in any case where the failure to act "may result in an imminent danger" to any individual's health, subject only to subsequent notice and hearing. § 11112(c)(2).
Based on the evidence then available to NorthShore, Mr. Goux believed that Dr. Onel had an alcohol abuse problem that could affect patient care. The Plaintiff offers no evidence that it was unreasonable for NorthShore to conclude that danger may result to patients if a physician with a suspected substance abuse problem were permitted to treat patients. The Plaintiff merely asserts that whether imminent danger existed is an issue of fact for the jury to decide. See Islami v. Covenant Med. Qr., Inc., 822 F. Supp. 1361, 1373 (N.D. Iowa 1992). Unlike the present case, the physician in Islami was able to present sufficient evidence to make the issue of imminent danger one of fact for the jury. See id. Dr. Onel has failed to put forth any evidence to challenge NorthShore's position that the failure to summarily suspend a suspected substance abuser may have resulted in an imminent danger to some patient's health.
The Defendant has presented evidence that it did provide the Plaintiff with adequate notice and hearing after the suspension as required by the emergency exception. Mr. Goux wrote Dr. Onel on December 28, 2001, notifying him of the summary suspension and explaining Dr. Onel's rights to an informed interview and a hearing. A copy the hospital's bylaws was attached to that letter. NorthShore reiterated Dr. Onel's rights in a subsequent letter dated January 3, 2002. At all times the Defendant was responsive and cooperative in providing Dr. Onel with requested documents and records relevant to the suspension. Dr. Onel does not take issue with the notice and hearing he received. In the absence of any evidence to the contrary, the presumption is that the Plaintiff received adequate notice and hearing procedures were available after he was summarily suspended.
4. Reasonable Belief that the Action was Warranted by the Facts Known
The fourth prong requires that the professional review action must have been taken "in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirements of paragraph (3)." 42 U.S.C. § 11112(a)(4) (2000). This standard "essentially combines the first three elements" of § 111 12(a). Rogers, 971 F. Supp. at 237. The Court's analysis under this standard tracks that applied to § 111 12(a)(1), Sugarbaker, 90 F.3d at 916, and the Court will not reweigh evidence or substitute its judgment for that of the professional review body. Rogers, 971 F. Supp. at 237. For the reasons stated above, the Court finds that Dr. Onel was summarily suspended in the reasonable belief that the suspension was warranted by the facts then known.
III. CONCLUSION:
NorthShore's professional peer review action in summarily suspending Dr. Onel was covered by the HCQIA's immunity provisions. 42 U.S.C. § 11111 (2000). Accordingly, the Defendant is entitled to immunity under the HCQIA as a matter of law. For the foregoing reasons, the Defendant's Renewed Motion for Summary Judgment is GRANTED.