Brandner v. Providence Health & Services - Washington
394 P.3d 581
Alaska2017Background
- Dr. Michael Brandner, a surgeon, was ordered by the Alaska State Medical Board (MSB) in Oct. 2010 to undergo psychiatric and medical evaluations; he completed a five-day Menninger Clinic evaluation in Dec. 2010 and the MSB closed the investigation in Dec. 2010 (confirmation sent May 2011).
- Providence’s Medical Staff policy (MS 980-150(D)) required physicians to self-report "any limitations, restrictions, or conditions" imposed by a state board within 30 days and prescribed automatic termination for failure to report.
- Brandner did not timely notify Providence of the MSB order; Providence’s executive committee (without prior notice to Brandner) recommended automatic termination in June 2011 and the Providence Board affirmed; Brandner was barred from practicing at Providence before any hearing.
- Brandner received post-termination internal hearings (Nov. 2011 hearing panel and Mar. 2012 appellate review) that upheld termination; he then sued in state superior court alleging due process and other claims; superior court ruled for Providence on most claims and granted HCQIA immunity for damages.
- The Alaska Supreme Court: (1) affirmed that the policy reasonably applied to Brandner (no substantive due process violation), (2) held Providence violated Brandner’s procedural due process by terminating privileges without any pre-termination opportunity to be heard, and (3) held Providence is not entitled to HCQIA immunity for the pre-termination deprivation; remanded for damages proceedings limited to the pre-termination violation.
Issues
| Issue | Brandner’s Argument | Providence’s Argument | Held |
|---|---|---|---|
| Whether Brandner waived pre-termination hearing rights by agreeing to hospital policies | No waiver; signatures did not conspicuously and knowingly relinquish due process | Policy language creating automatic termination sufficed to waive pre-termination hearing | No waiver: court held no clear, knowing waiver and property interest remained |
| Whether due process required any opportunity to be heard before termination | Pre-termination opportunity is required except in emergencies | Post-termination full hearing satisfied due process; termination under automatic-policy permitted for safety reasons | Pre-termination opportunity required here; no emergency existed, so Providence violated procedural due process |
| Whether MS 980-150(D) was unconstitutionally vague or arbitrarily applied | Policy ambiguous as to what counts as a "condition"; arbitrary enforcement against Brandner | Policy reasonably required reporting of MSB-imposed conditions; applied consistently | Policy was not vague as applied; not arbitrarily or capriciously applied to Brandner (no substantive due process violation) |
| Whether HCQIA shields Providence from damages for terminating Brandner without pre-termination notice/hearing | HCQIA immunity does not apply because §11112(a)(3) requires adequate notice/hearing before the professional review action | HCQIA immunity applies; post-termination hearings or safe-harbor/suspension provisions suffice | HCQIA immunity does not apply to the pre-termination deprivation here; post-termination procedures cannot cure the lack of any pre-deprivation opportunity under the facts |
Key Cases Cited
- Alyeska Pipeline Serv. Co. v. State, Dep’t of Envtl. Conservation, 145 P.3d 561 (Alaska 2006) (standard for de novo review of legal questions)
- McMillan v. Anchorage Cmty. Hosp., 646 P.2d 857 (Alaska 1982) (pre-termination hearings generally required for hospital-privilege deprivations absent imminent danger)
- Storrs v. Lutheran Hosps. & Homes Soc’y of Am., Inc., 609 P.2d 24 (Alaska 1980) (quasi-public hospitals subject to due process in denying staff privileges)
- Chicago v. Morales, 527 U.S. 41 (1999) (vagueness doctrine: impermissible vagueness where rule permits arbitrary enforcement)
- Peper v. St. Mary’s Hosp. & Med. Ctr., 207 P.3d 881 (Colo. App. 2008) (hospital bylaws alone may not satisfy HCQIA notice/hearing requirements; pre-deprivation notice and hearing can be required)
- Wahi v. Charleston Area Med. Ctr., 562 F.3d 599 (4th Cir. 2009) (context-sensitive denial of pre-termination hearing where physician had prior notice and immediate opportunity to be heard during investigation)