MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant Gila Regional Medical Center’s Motion for Summary Judgment, filed August 8, 2011 [Doc. 57]. Having considered the record and undisputed facts, the parties’ briefs, and the applicable law, I will deny the motion.
Pro se Plaintiff Dr. Chinonyerem Osuagwu sued Gila Regional and several individuals
I. APPLICABLE LEGAL STANDARDS
Under HCQIA, any health-care entity that takes final peer-review 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).
A professional review action shall be presumed to have met the preceding standards necessary for the protection set out in section 11111(a) of this title unless the presumption is rebutted by a preponderance of the evidence.
42 U.S.C. § 11112(a). But, unlike qualified immunity under 42 U.S. § 1983, HCQIA immunity is “immunity from liability only,” not immunity from suit. Decker v. IHC Hosps., Inc., 982 F.2d 433, 436 (10th Cir.1992); Summers v. Ardent Health Serv., L.L.C.,
a court might determine at an early stage of litigation that the defendant has met the [section 11112(a) ] standards, even though the plaintiff might be able to demonstrate that the professional review action was otherwise improper. At that point, it would be in order for the court to rule on immunity. In such a case, the court could still proceed to determine whether injunctive, declaratory, or other relief would be in order.
Id. at n. 24 (citing H.R.Rep. No. 903, at 12, reprinted in 1986 U.S.C.C.A.N. 6384, 6394).
Section 11112(b) of HCQIA more fully defines the minimum “adequate” notice and hearing procedures referred to in § 11112(a)(3). This subsection provides:
A health care entity is deemed to have met the adequate notice and hearing requirement of subsection (a)(3) of this section with respect to a physician if the following conditions are met (or are waived voluntarily by the physician):
(1) Notice of proposed action
The physician has been given notice stating—
(A) (i) that a professional review action has been proposed to be taken against the physician,
(ii) reasons for the proposed action,
(B) (i) that the physician has the right to request a hearing on the proposed action,
(ii) any time limit (of not less than 30 days) within which to request such a hearing, and
(C) a summary of the rights in the hearing under paragraph (3).
(2) Notice of hearing
If a hearing is requested on a timely basis under paragraph (1)(B), the physician involved must be given notice stating—
(A) the place, time, and date, of the hearing, which date shall not be less than 30 days after the date of the notice, and
*1222 (B) a list of the witnesses (if any) expected to testify at the hearing on behalf of the professional review body.
(3) Conduct of hearing and notice If a hearing is requested on a timely basis under paragraph (1)(B)—
(A) subject to subparagraph (B), the hearing shall be held (as determined by the health care entity)—
(i) before an arbitrator mutually acceptable to the physician and the health care entity,
(ii) before a hearing officer who is appointed by the entity and who is not in direct economic competition with the physician involved, or
(iii) before a panel of individuals who are appointed by the entity and are not in direct economic competition with the physician involved;
(B) the right to the hearing may be forfeited if the physician fails, without good cause, to appear;
(C) in the hearing the physician involved has the right—
(i) to representation by an attorney or other person of the physician’s choice,
(ii) to have a record made of the proceedings, copies of which may be obtained by the physician upon payment of any reasonable charges associated with the preparation thereof,
(iii) to call, examine, and cross-examine witnesses,
(iv) to present evidence determined to be relevant by the hearing officer, regardless of its admissibility in a court of law, and
(v) to submit a written statement at the close of the hearing; and
(D) upon completion of the hearing, the physician involved has the right—
(i) to receive the written recommendation of the arbitrator, officer, or panel, including a statement of the basis for the recommendations, and
(ii) to receive a written decision of the health care entity, including a statement of the basis for the decision.
A professional review body’s failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of subsection (a)(3) of this section.
42 U.S.C. § 11112(b). In addition, HCQIA confers immunity on any person who makes a report to the National Practitioner Data Bank ‘without knowledge of the falsity of the information contained in the report.’ 42 U.S.C. § 11137(c) (1994). Thus, immunity for reporting exists as a matter of law unless there is sufficient evidence for a jury to conclude the report was false and the reporting party knew it was false.
Brown,
When a defendant asserts HCQIA immunity in a motion for summary judgment, there is an “unconventional twist to the burden of proof in our summary judgment standard,” Sugarbaker v. SSM Health Care,
Of course, what minimum procedural process is due under HCQIA must also be adjudged in light of constitutional due-process protections. The Eleventh, Sixth, and Fifth Circuits have explicitly held that a physician has a constitutionally-protected property interest in medical-staff privileges where the hospital’s bylaws detail an extensive procedure to be followed when corrective action or suspension or reduction of these privileges is going to be taken. See Shahawy v. Harrison,
Ordinarily, “one who has a protected property interest is entitled to some sort of hearing before the government acts to impair that interest, although the hearing need not necessarily provide all, or even most, of the protections afforded by a trial.” Gamuglia v. City of Albuquerque,448 F.3d 1214 , 1220 (10th Cir. 2006) (citing Mathews v. Eldridge,424 U.S. 319 , 335,96 S.Ct. 893 ,47 L.Ed.2d 18 (1976)). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer,408 U.S. 471 , 481,92 S.Ct. 2593 ,33 L.Ed.2d 484 (1972). The Supreme Court has repeatedly held,
*1224 “where a State must act quickly, or where it would be impractical to provide predeprivation process, postdeprivation process satisfies the requirements of the Due Process Clause.” Gilbert v. Homar,520 U.S. 924 , 930,117 S.Ct. 1807 ,138 L.Ed.2d 120 (1997). Furthermore, “[a]n important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation.” Id. at 930-31,117 S.Ct. 1807 .
“In matters of public health and safety, the Supreme Court has long recognized that the government must act quickly. Quick action may turn out to be wrongful action, but due process requires only a postdeprivation opportunity to establish the error.” Camuglia,448 F.3d at 1220 (citing North American Cold Storage Co. v. City of Chicago,211 U.S. 306 , 315,29 S.Ct. 101 ,53 L.Ed. 195 (1908)).
The discovery that a physician constitutes an imminent danger to public safety is precisely the kind of circumstance where the government must act quickly.
Guttman v. Khalsa,
II. UNDISPUTED FACTS AND ANALYSIS
Plaintiff contracted with Gila Regional to provide obstetrical/gynecological services in February 2008. He worked in an obstetrical/gynecological practice with Dr. Nwachuku, who was the head of obstetrics at Gila Regional. It appears that the MEC at Gila Regional consisted of Dr. Michael Sargent, who was its acting Chief of Staff
Under Gila Regional’s bylaws, upon the request of the CEO, Board of Trustees, or its Chief of Medical Staff, the MEC may authorize an immediate, maximum 14-day summary suspension of any physician when “the failure to take such action may result in imminent danger to the health of any individual and otherwise be in the best interest of patient care at [Gila Regional],” during which time the hospital would investigate to determine the need for permanent action. Doc. 44, Ex. J at 1, ¶ 7.2-1. Within the following 5 days, the MEC is mandated to “interview the practitioner affected by the summary suspension,” and to inform him of its specific basis, including a written statement and summary “of at least one or more particular incidents giving rise to the assessment of imminent danger” “demonstrating that failure to suspend could have reasonably resulted in an imminent danger to the health of an individual.” Id. at 1-2, ¶ 7.2-2. The bylaws expressly require the suspended practitioner “to be given an opportunity to discuss, explain, or refute the facts that made the basis of the suspension.” Id. at 2, ¶ 7-2-2. Within 10 days of the suspension, the MEC is required to report its findings, and if it finds that a failure to modify or continue the suspension may result in imminent danger, it must notify the doctor and provide a formal fair hearing as required by section 8 of the bylaws. Id., ¶ 7.2-3. The notice of hearing is required to state “the acts or omissions with which the practitioner is charged, a list of specific or representative charts questioned, and/or the other reasons or subject matter that was
A. The events instigating the initial 14-day suspension of laparoscopic privileges.
On November 17, 2008 after a “Special [MEC] meeting,” of which Plaintiff was completely unaware, based on “complications from two diagnostic laparoscopic procedures,” the MEC summarily but temporarily suspended Plaintiffs privileges to
At the fair hearing, Dr. Carreon, whom the MEC appointed to present its ease, explained that the MEC believed that, although the two surgical cases had been “difficult” and “high-risk” ones, “having two complications [from bowel perforations] in the [5 to 6-week period of time] was a little bit over the acceptable limit,” and it wanted a Peer Review Committee (“PRC”) to further investigate Plaintiffs performance. Doc. 44, Ex. R at 9-12. Although not mentioned in its November 17, 2008 notice of suspension, Dr. Carreon also cited a recent instance in which Plaintiff attempted to schedule an exploratory laparoscopy of an obese patient, which was cancelled when the nurse anesthetist refused to administer anesthesia. See id. at 6-8. It was this third event that actually instigated the MEC’s summary-suspension action. See id.; id. at 11-12. As noted, it is undisputed that, contrary to the Bylaw’s requirements and the usual procedure at Gila Regional, neither the MEC nor the PRC interviewed or otherwise question the Plaintiff about these three cases before or during the initial 7-day suspension or during the subsequent indefinite extension and expansion of Plaintiffs suspension during the three weeks before the fair hearing. See id. at 31-32. At the fair hearing, although he was not a “voting member” of the PRC, Dr. Remillard justified the departure from the required procedure, stating “we [the PRC] felt that the magnitude of the threat to the public was such that we needed to take immediate action. And so we moved very, very swiftly to present it to the appropriate bodies, in this case the MEC, to say, no, we really need to suspend.” Id. at 32. Except for Plaintiffs comments given at the fair hearing noted below, the following is a summary of the three cases based on the hospital records before the MEC and PRC.
Case 10
After reviewing the hospital chart, according to Dr. Remillard, the only reasons the MEC stated they were initially concerned about this case were what they perceived as “the [un]timeliness of obtaining consultation on this patient” from the general surgeon and the fact that she was not transferred to another hospital until September 7. Doc. 44, Ex. R at 104. In other words, the MEC apparently did not believe that the Plaintiffs actions had placed this patient in “imminent danger.”
Case 7 — # 196208. Dr. Nwachuku and Plaintiff operated on this patient in July 2008 to remove an ovarian cyst and her uterus. See Doc. 44, Ex. R at 119-121, 138. She came back to Plaintiff on November 8, 2008 because of severe abdominal pain, and he performed an exploratory laparoscopy to try and determine the cause of her pain and to remove adhesions, after which she went home. See id. at 116, 119-122. A few hours later, she returned to the ER with abdominal pain, but Dr. Nwachuku sent her back home after examination. Two days later, while Plaintiff was out of town, the patient came to the ER and was placed in ICU. See id. at 116, 122. Dr. Nwachuku and Dr. Wendler, a general surgeon, performed a laparotomy on November 10, during which they discovered two bowel perforations and a large hematoma. See id. at 116.
Case 9 — # 76636. On November 14, 2008, Plaintiff tried to schedule an exploratory laparoscopic procedure on a 45-year-old, obese patient. This patient had severe, chronic pelvic pain after multiple gynecological and abdominal surgeries by other physicians, including the prior removal of two ovarian tumors and her uterus. She had been referred to Plaintiff by another doctor to diagnose the cause of her pain. See Doc. 44, Ex. K10 at 3, 5-6. The patient was taking several medications for asthma, high cholesterol, and high blood pressure, but her blood pressure at the time of admission was normal and she was not currently experiencing any heart, breathing, or swelling issues. See id. at 6. A sonogram showed a “complex adnexal cystic structure,” or mass, in the uterine area. See id. Before the scheduled surgery, Plaintiff confirmed that Dr. Wendler, a general surgeon, would be available to assist him, should the need for a laparotomy arise. See id. at 3. But the nurse anesthetist “refused to perform the case,” opining that the patient was “a high risk status,” and the head of anesthesiology— who was also the hearing officer for the fair hearing in this case cancelled' — the surgery. Id.; and see Doc. 44, Ex. N at 1; Doc. 44, Ex. R at 7-8, 81. The MEC never concluded that Plaintiff had put this patient in “imminent danger” by attempting to schedule the elective exploratory laparotomy.
B. The PRC review and the suspension of all gynecologic privileges.
After its summary suspension of laparoscopic privileges, the MEC asked the hospital’s PRC to review the two cases and provide recommendations. The PRC con
The PRC pulled 34 of Plaintiffs patients’ hospital charts, divided them up between “four or five” unidentified physicians for review, id. at 29, and the reviewers filled out “Medical Staff QA & I” forms by giving a brief summary of the reviewer’s “findings” and “conclusions” regarding each case; answering 8 general questions about the patient’s clinical management; and rating it between a 1 and a 5. See, e.g., Doc. 44, Ex. K1 at 1-2. Category 3 cases indicated a “marginal deviation from the standard of care;” category 4 cases indicated “some deviation from the standard of care with possible change of outcome,” and category 5 cases indicated “deviation from the standard of care with probable change of outcome.
According to Dr. Remillard, who was involved in the PRC’s November 22 meeting, at the PRC’s urging, the MEC held an “emergency meeting” on November 24, 2008, at which time the PRC recommended that Plaintiffs “laparoscopic privileges be suspended indefinitely.” Doc. 44, Ex. R at 29-31; see Doc. 44, Ex. Q. Although the Amended Complaint states that the PRC “submitted findings in a report to the ... MEC,” Am. Compl. at ¶ 51, that report has not been submitted in the summary-judgment record. Without explanation in the record, and with no finding of “imminent danger,” in violation of the Bylaws, the MEC “broadened [the suspension] to all gynecological privileges and also to have mandatory consultation when obstetrical care ... deviated from normal because of the timeliness of consultation.” Doc. 44, Ex. R at 30; see Doc. 57, Ex. 2. Dr. Carreon stated that the PRC decided to send the charts “to somebody else outside the hospital to have them reviewed and see what their opinion was, as well.”
C. The fair hearing.
The FHC panel consisted of Dr. Remillard, Dr. Russell Kleinman, Dr. Mark Donnell (who served as the hearing officer), Dr. Adele Lente, and Dr. Bill Neely
Dr. Remillard then took over questioning the Plaintiff, and finished presenting and arguing the MEC’s case, even though a review of the transcript shows that he was never sworn in (in contrast to Dr. Carreon, see id. at 5), he was not appointed to present the MEC’s case, and he was a voting member of the FHC panel. See, e.g., id. at 29-30, 66-68, 73, 77; Doc. 44, Ex. W at 2. Indeed, Dr. Remillard played roles as Dr. Oswagwu’s accuser and “expert witness” against him, by virtue of his involvement in the MEC and PRC committees; as his prosecutor and as an unsworn witness at the Fair Hearing; and as a judge at the Fair Hearing. Although Gila Regional’s Bylaws do not preclude its Chief Medical Officer’s involvement in every stage of an investigation, disciplinary sanction, and “fair” hearing to determine if the sanction was appropriate, minimal constitutional due-process standard does preclude involvement to this degree. “[T]he Due Process Clause of the Fifth Amendment guarantees a hearing concerning the deprivation of ... a recognized property or liberty interest before a fair and impartial tribunal. This guarantee applies to administrative adjudications as well as those in the courts.” Harline v. Drug Enforcement Admin.
[a]n impartial hearing board has been required, to the extent that a member of the board may not participate in a case as an investigating or reviewing officer, or be a witness. The Third Circuit, ... has also held, in the context of the federal system where a prisoner whose good time is taken away goes first to a disciplinary committee, and then to the Good Time Forfeiture Board, that an associate warden could not sit on both committees.
Wolff v. McDonnell,
Instead of requiring the MEC to present evidence in support of its two suspensions, the FHC decided to itself go through the charts of the cases that the PRC members had rated to see “what peer review said;” and to allow Plaintiff an opportunity to “explain his perceptions of the cases and discuss them.” Doc. 44, Ex. R at 38. The question regarding “what peer review said” appears to be contained solely in the “Medical Staff QA & I” forms prepared by various anonymous members of the PRC between November 17 and 22, 2008. The forms had apparently been given to Plaintiff before the fair hearing so that he could comment in writing on the case and the criticisms. See Doc. 44, Exs. K1-K13; Doc. 44, Ex. R. at 44. The FHC discussed, however, and the Plaintiff was permitted to discuss, only the following cases at the fair hearing:
1. Case 8 — # 65998 — category 5 (reduced to category 4 at the hearing because the FHC panel concluded that the Plaintiffs medical decisions were not questionable under the circumstances). The PRC form stated that the major criticism was the Plaintiffs insufficient documentation regarding what he saw and what he did before deciding to remove an ovary, after which the FHC panel determined that it was not a standard-of-eare issue, but rather a documentation issue, see Doc. 44, Ex. R at 39-57. But the PRC form also made the statement, “should pt. have had doppler?” even though the PRC reviewer subsequently stated that there was documentation that “clinically pertinent diagnostic tests” had been ordered; and the PRC reviewer questioned whether there “was an [undescribed] avoidable incident that extended the length of stay or compromised the outcome?” Doc. 44, Ex. Kll at 1, 2. The medical records and evidence at the hearing showed that the 15-year old patient had presented to Gila Regional’s ER reporting abdominal pain for two weeks and constant, more severe pain for 24 hours. Doc. 44, Ex. R at 39, 47. A CT scan showed “an enlarged abnormal right ovary consistent with torsion and infarction,” and a doppler ultrasound report stated that there was no blood flow to the ovary. Id. at 39-40; see also Doc. 44, Ex. Kll at 5 (radiologist’s opinion that, given the long duration of symptoms, “the ovary could be infarcted and necrosed”). After viewing the ovary and seeing, in fact, that it was greatly enlarged and twisted and not receiving proper blood flow, Plaintiff believed that it was infected and not viable, and he removed the ovary laparoscopically. Doc. 44, Ex. R at 47-50, 55. The patient recovered fully and was released from the hospital the next day. See id. at 57.
The post-op pathology report stated that, although the ovary was swollen and had a cyst, it was otherwise “relatively normal.” See id. at 56. At first, Dr. Remillard stated that the PRC Committee was satisfied with Plaintiffs documentation regarding his procedures. See id. at 44. The PRC appeared to be unhappy about the outcome because Plaintiff had removed what appeared on pathology to be a non-necrotic ovary in a young woman, thereby negatively affecting her fertility. See id. at 40-42. But after Dr. Remillard and the other doctor/eommittee members at the fair hearing agreed that taking the patient to surgery was reasonable and two of the doctors commented that, based on the CT and ultrasound scans, radiology report, enlarged size, and torsion, there was a definite risk of not removing the ovary, see id. at 45, 46, 49-50, Dr. Remillard’s major criticism was that Plaintiff did not sufficiently document the specific circumstances that led him to make the surgical decision to remove the ovary. See id. at 50-51; 54-55. In response to Plaintiffs question of what he should have done that
I ... can’t criticize the surgical management. I probably would have done the same thing. It would have been nice to write an extra two or three lines ... [saying] this is what I’m seeing, that is what I’m finding, this is what I’m thinking, and this is what I acted upon. And it wasn’t very clear in there.
Id. at 57-58. One of the other panel members then commented that, if it was a documentation issue, and Dr. Remillard would have done the same thing, it really wasn’t a standard-of-care issue. Id. at 58.
2. Case 4 — #219986—category 5 (reduced to a 4 at the hearing because nothing negative happened to the patient). The PRC’s only criticism was Plaintiffs failure to document the fetal “dating criteria” or gestational weight in the hospital charts and failure to document why he decided to deliver a 34 week + 4 day fetus (with a fundal height of 35 weeks) at Gila Regional instead of arranging to transfer the mother to Albuquerque, see id. at 61-80; see Doc. 44, Ex. K4 at 2 (rating all areas “satisfactory” except “was there documentation in the medical record evidencing clinical decision making as timely and appropriate?”). Plaintiff explained that, according to the lab reports he ordered that were in the record, there were no infection or other issues with the fetus other than that it was premature; that when he first started working at Gila Regional, they told him that they were confident in caring for infants that were gestationally older than 34 weeks in their level-one nursery; that the mother had reported, and he confirmed through tests, that she was leaking amniotic fluid for 1-2 days; and that the mother’s drug screen was negative even though she had taken drugs early in the pregnancy. See Doc. 44, Ex. R at 65. Dr. Remillard noted that he had called “the perinatologist regarding this case, and they felt that inducing [this] patient ... would be appropriate in this scenario.” Id. at 77.
3. Case 9 — #76636—category 5 (but surgery was cancelled, so no harm to patient)ease discussed, supra. The only criticism seemed to be that the patient was a high anesthesia risk and that Plaintiff failed to document in the hospital charts the connection between the CT scan showing a mass and the pain in his decision to perform a diagnostic laparoscopy. See Doc. 44, Ex. R at 80-93. The Plaintiff pointed out that a cardiac specialist determined on December 10, 2008 that the patient was a “low and reasonable risk” for surgery. See Doc. 44, Ex. K10 at 13 (cardiologist’s report). Further, although the PRC reviewer had stated: “No pelvic — not really GYN case,” the medical records shows that the patient subsequently saw Dr. Nwachuku, who (with Dr. Wendler) performed an open laparotomy and adnexectomy to remove an ovarian mass under anesthesia a month later, with no complications. See Doc. 44, Ex. K10 at 7; Doc. 44, Ex. R at 86.
4. Case 10 — #41872—category 4, discussed, supra, “medical management question.” Doc. 44, Ex. R at 93. As noted, supra, the major complaint was the alleged untimeliness of calling in a surgical consult. See id. at 104. At the fair hearing, Plaintiff explained that surgeons at UNM did an open surgery and found that her small bowel had been perforated. See id. at 100. After reviewing the hospital charts, one of the panelists/surgeons expressed “the likelihood” that the perforation happened during Plaintiffs and Dr. Nwachuku’s original laparotomy because of her symptoms when she was admitted
5. Case 5 — # 196208 — category 4, discussed supra. The panel had no further discussion about this case except to finish getting the facts. See id. at 116-124. Plaintiff admitted that it was possible that he could have caused the perforations in this very difficult case when he performed the laparoscopy. See id. at 122.
6. Case 6 — #86820—category 4 — another “medical management” question. Id. at 124. Dr. Remillard stated that the PRC’s concerns were that “the patient did not improve and it was sort of slow to start bringing in consultants to help manage this patient.” Id. at 130. But the PRC review form erroneously stated, “bowel injury” and “NO [blood] cultures,” see Doc. 44, Ex. K6 at 1, which the Plaintiff showed were not true, based on the medical records. See Doc. 44, Ex. K6 at 6-8. The Plaintiff explained that, for several days after he and Dr. Nwachuku had removed a post-operative abscess on September 24, the patient’s only problem was that she could not void; and that he had initially consulted Dr. Nwachuku, who told him that the problem could be a result of medication, and “that what he normally does is just keep them on the foley for a couple of weeks or transfer them out.” Id. at 17; Doc. 44, Ex. R at 126-27. The hospital records showed that the patient was afebrile and stable until October 28, when she developed a “low grade fever,” at which point Plaintiff immediately consulted “Dr. Snure.” Doc. 44, Ex. M6 at 2. When she continued having a low-grade fever on October 29, Plaintiff consulted an infectious diseases specialist, who confirmed on October 30 that he was using an appropriate antibiotic. See id. When the patient expressed unhappiness with not being able to void and stated that she did not want Plaintiff to take care of her any longer, she was transferred to a hospital in Arizona. See Doc. 44, Ex. R at 125, 127,131,135-36. The patient began voiding within three days of transfer and was doing well. See id. at 127. After examining the charts, Dr. Remillard confirmed that the patient “did improve” after surgery on the 24th, contrary to the MEC’s statement that she did not improve, and also confirmed that there were no other infection issues. Id. at 134-35.
7. Case 7 — # 196208 — category 4. This case involved the same patient as case 5, supra, but the PRC’s concern was “post-op pain management.” Id. at 141. Plaintiff had prescribed, and the patient had received 50 mg of demerol after she returned to her room after surgery, causing a low respiration rate and oxygen saturation. The PRC reviewer stated “pain
8. Case 13 — # 51082 — category 4. According to Dr. Remillard, the PRC stated that Plaintiffs “H & P was felt to be inadequate” because Plaintiff deferred a pelvic exam prior to performing a D & C for a “missed abortion.” Id. at 144-45. The PRC form also questioned whether there was documentation in the record showing that Plaintiff had ordered “clinically pertinent diagnostic tests.” Doc. 44, Ex. K7 at 2. At the hearing, it was determined that the patient came in for the D & C after having had a pelvic exam by a midwife who had noted a “fetal demise”; and that she also already had an ultrasound affirmatively showing the demise, see id. at 7 (copy of ultrasound); and that she was actively bleeding and had passed blood clots in the ER while waiting for Plaintiff. See Doc. 44, Ex. R at 145-48. Plaintiff explained that he deferred another pelvic exam because she was in pain and he knew that she had to have an immediate D & C based on the referral, the ultrasound, and the blood clots. See id. at 149. The FHC panel concurred that there was no problem with deferring the exam. See id.
9. Case 11 — # 205132 — category 4. According to the PRC form, the “H & P preop [was] inadequate. Operative management was questioned due to 1500 ccs of irrigation, and there was some question about the use of mag citrate after” Plaintiff had performed a laparoscopic lysis of adhesions in a patient who had come in with severe abdominal pain. Id. at 150; see Doc. 44, Ex. K8 at 1. At the hearing, Plaintiff explained that, during the laparoscopy, he had used a medication created to reduce adhesions to irrigate the abdominal area according to the manufacturer’s directions, and that there had been a transcription error in describing the medication. See Doc. 44, Ex. R. at 151-52. He explained that the patient had been sent home on non-narcotic pain killers; that she came back to the hospital complaining of constipation four days later; that after other medications for constipation did not work, he prescribed the magnesium citrate, which relieved the constipation and she went home. See id. at 153. He skipped a pre-op pelvic exam because “she was having too much pain” but stated that he did a pelvic exam when he inserted “the uterine manipulator” during the surgical proceeding. See id. at 153-54. He also mentioned in his written explanation that he had performed a pelvic exam at his clinic before he scheduled the surgery. See Doc. 44, Ex. K8 at 3.
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination.
Greene v. McElroy,
Because one of the panel members had to leave, the panel decided that there was no need to review or discuss the three category-3 cases submitted by the PRC, and Dr. Donnell informed Plaintiff that they were going to conclude the hearing and “reconvene on Thursday just as a panel to discuss what was discussed here today” and reach their decision. Id. at 155 (italics added). Thus, the FHC reviewed a total of 9 cases, discussed supra, only one of which indicated that Plaintiff had perforated a bowel during laparoscopic lysis of adhesions (and, as the outside peer reviewer later noted, unless Plaintiff had a pattern of perforating bowels during those procedures, that may have been a one-time simple mistake). As noted by the summary of the cases set out above, no surgical/ gynecological expert indicated that Plaintiff had fallen below the standard of care on any other kind of surgical or obstetrical proceeding or otherwise placed patients in danger. As noted, the PRC reviewers’ most common complaint was Plaintiffs failure to fully document what he had done.
But before the FHC reached a decision regarding a recommendation to the MEC and Board of Trustees, on December 17, 2008, Dr. Remillard wrote to the New Mexico Board of Medical Examiners to inform them of the two suspensions of Plaintiffs privileges. Doc. 44, Ex. Q.
The FHC panel reconvened on December 18 and made the following non-specific findings, none of which specifically con-
(1) There was evidence of poor surgical judgment in several cases involving the laparoscopic lysis of adhesions;
(2) There was evidence of poor obstetrical judgment in one case; and
(3) There was evidence of poor documentation of preoperative evaluations and of intraoperative surgical findings in several cases.
Doc. 44, Ex. W at 1. Based on “the case reviews and these findings” the FHC panel made the following recommendations to the MEC and Board of Trustees.
(1) Restore [Plaintiffs] Gynecology privileges except for the laparoscopic lysis of adhesions.
(2) Institute ongoing focused chart review for [Plaintiffs] obstetric and gynecologic cases.
(3) Mandate additional education for [Plaintiff] with regard to the indications for and techniques of laparoscopic lysis of adhesion.
(4) Require additional education for [Plaintiff] focused on risk management and medical records documentation.
Id. at 2. Because it is clear, on undisputed evidence, that the December 15, 2008 hearing was not fair both because there was not an impartial hearing panel and because Plaintiff was not given a fair opportunity to confront and cross-examine the other physicians who had prepared the PRC forms and expressed “expert testimony” that was used against him, I conclude, as a matter of law, that the FHC’s recommended disciplinary and sanction actions were not made “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.” 42 U.S.C. § 11112(a)(3).
D. Proceedings before the Board of Trustees.
The MEC held a special meeting on December 29, 2008 to discuss the FHC’s recommendations. Despite the fact that Dr. Remillard, the only gynecologist on the FHC panel and Gila Regional’s CMO, concurred in the FHC recommendations and signed off on them, the MEC sent a much harsher, more extensive set of recommendations to the Board that also affected Plaintiffs ability to practice obstetrics at Gila Regional. See Doc. 44, Ex. N at 1, 6. These recommendations included:
1. Suspension of all gynecologic surgical privileges
2. Obtain consultations for all obstetrical patients with medical or surgical complications and consultations for all Special Care Unit admissions.
3. Send charts in question for outside review.
4. Ongoing focused review of all obstetric patients.
5. Six hours of Continuing Medical Education of Risk Management, including education on medical record documentation.
6. Before GYN privileges reinstated, additional education with regard to the indications for and techniques for all gynecological surgery and receipt of information from an educator that Dr. Oswaguwu is competent to practice in a small town.
Id. at 1. The MEC gave no reasons for ignoring the recommendations of its PRC and its FHC, both of which had conducted a much more thorough review of the hospital records than had the MEC members, nor did it give any reasons for recommending imposition of these extremely harsh sanctions, many of which appear to have no basis in the evidence. As a matter of law, I conclude that the MEC did not make these recommendations or continue
The Board of Trustees held its hearing on February 2, 2009. The questions the Board of Trustees posed were whether the Plaintiff had been given “notice and a hearing” and whether the MEC’s recommendations are “reasonable and supported by substantial evidence.” Doc. 44, Ex. N at 1. The Board’s summary index of the proceedings contained untrue statements. For example, it stated that the Plaintiff had “provided input on selection of the [peer] Committee members,” see id. at 2, even though the Plaintiff had no idea that a PRC had been convened to evaluate all of his hospital records before issuance of the second sanction on November 24, 2008, and it stated that category 3 cases were reviewed “in detail” at the fair hearing, see id. at 5 even though the FHC had decided not to consider those cases and did not review them at the December 15, 2008 hearing. In addition, the Board of Trustees considered case-note summaries of cases 1 and 2, which were category 3 cases that the FHC decided to disregard and about which Plaintiff had no opportunity to comment or defend at the fair hearing. See id. at 4.
It is unclear who made the summary of the case notes for the Board of Trustees in advance of the public hearing, but it appears that they came from the PRC’s Medical Staff Q A & I sheets and the MEC’s November 24 meeting because they included several eases that were never discussed at the fair hearing and several incorrect statements of fact that had been corrected at the fair hearing. See id. at 3.
For example, the summary of Case 4 stated as a criticism: “induction of labor in high-risk OB patient at [] 35 weeks gestation, pregnancy complicated by alcohol and methamphetamine use,” see id. at 3, despite the facts that: 1) there was absolutely no evidence or testimony that the mother was high risk or had complications during her pregnancy; 2) Plaintiff testified that he had been the mother’s OB physician since the first trimester; that she had been drug-free since her first trimester; and that her lab results continued to show no drug or alcohol in her system at the time he decided to induce, see Doc. 44, Ex. R at 64-65, 77; and 3) Dr. Remillard had established at the fair hearing that inducing labor in that patient was the correct thing to do under the circumstances, id. at 77.
And the summary of Case 6 states the criticism of Plaintiffs treatment as, “Pelvic abscess: 5 days before infectious disease consult; 6 days before surgery consult.” Doc. 44, Ex. N at 3. But undisputed testimony and evidence at the fair hearing had established that, after the pelvic abscess was removed, there were no further infection or surgical issues; that the patient’s only problem after the abscess removal was that she could not urinate without a foley catheter; and that she was transferred at her request because she could not urinate. See Doc. 44, Ex. R at 134-37. The case-note summary also incorrectly stated that “no blood culture or urinalysis ordered,” Doc. 44, Ex. N at 4, but as noted, supra, Plaintiff conclusively established at the fair hearing that he had obtained both blood cultures and urinalyses and the FHC panel extensively examined them.
At the February 4, 2009 hearing, contrary to Gila Regional’s bylaws, the Board heard new evidence from Dr. Montoya, the only physician/member of the Board of Trustees, regarding two cases in which Dr. Montoya believed that Plaintiffs medical
Based on these undisputed facts, I conclude as a matter of law that Gila Regional, through its Board did not meet its statutory duty to impose permanent sanctions only “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 [ ] 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)(3), (4).
E. Post-hearing events.
On March 4, 2009, Dr. Remillard submitted a report to the National Practitioner Data Bank, informing it of the Board’s February 2, 2009 final “indefinite” suspension and reduction of clinical privileges. Doc. 44, Ex. G (44-1 at 2-5). But there are errors in Dr. Remillard’s report, the most negative being that he erroneously stated that the results of “an outside peer review of selected cases” contributed to the Board’s decision to taking its final adverse actions. Id. at 2. As the basis for the Board’s action, Dr. Remillard also cited “substandard or inadequate skill level,” “immediate threat to health or safety,” and “substandard or inadequate care,” id. at 3, when there has never been a final finding made by an expert, the Board, the MEC, or the FHC that, in fact, Plaintiff fell below the standard of care or that he is so incompetent that he poses an “immediate threat to health or safety.” And Dr. Remillard did not check the box indicating that Plaintiff disputed the report. See id. Plaintiff has presented compelling evidence, therefore, “for a jury to conclude [Dr. Remillard’s] report was false and the reporting party knew it was false.” Brown,
Based on Dr. Remillard’s report of Gila Regional’s adverse actions and submission of some of the Gila hospital records regarding some of the same cases before the FHC, on January 18, 2011, the New Mexico Medical Board (“NMMB”) sent Plaintiff a notice that it intended to impose sanctions that could include restricting, revoking, or suspending his medical license if Plaintiff did not adequately rebut or explain that evidence. See Doc. 44, Ex. U at 1. After a hearing, at which the state’s expert in surgical gynecology and obstetrics testified, the NMMB noted that the expert concluded that the expert’s clinical judgment differed in some cases from Plaintiffs, and that the expert would have documented the medical information more adequately or differently, but that the expert did not believe that the Plaintiffs judgment was “careless,” “bad,” or “unreasonable.” See Doc. 44, Ex. S at 2. Accordingly, the Board found that the care given and the medical recordkeeping in these cases “represented matters of clinical judgment” and concluded that the charges that Plaintiff had “deviated from the standard of care with a resulting possible or probable change of outcome” were not “substantiated by a preponderance” of the evidence. Id. at 1, 9.
III. CONCLUSION
Although I conclude that it was not necessary for the MEC to give Dr.
I also find and conclude that the MEC did not impose its December 30, 2008 suspensions and disciplinary actions, or make these recommendations as permanent sanctions to the Board “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 providing the Plaintiff with a fair hearing. 42 U.S.C. § 11112(a)(3), (4). As noted above, the MEC gave no reasons for ignoring the recommendations of its PRC and its FHC, both of which had conducted a more thorough review of the hospital records than had the MEC members, nor did it give any reasons for recommending imposition of its extremely harsh sanctions.
I also conclude that the MEC, FHC, and Board of Trustees all failed to take action only “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.” Id. § 11112(a)(3), (4). As noted, the December 15, 2008 hearing was not procedurally fair in that Plaintiff was not given a fair opportunity to confront and cross-examine the anonymous physicians who prepared the peer-review forms accusing Plaintiff of violating the standards of care upon which the FHC relied at least in part, and because the FHC panel was not impartial because Gila Regional’s CMO — who holds a position of power over all of the physicians who participated in the disciplinary proceedings — served as Plaintiffs accuser, investigator, prosecutor, and one of his judges. The Board’s February 2, 2009 hearing was not fair because the Board considered evidence not presented at the December 15, 2008 hearing and heard new testimony that Plaintiff was not permitted to defend against. Gila Regional’s bylaws provided fair procedures for determining the reasonableness and propriety of imposing severe sanctions that will negatively affect Plaintiff for the rest of his professional career, but the record demonstrates that Gila Regional, through its MRC, PRC, FHC, and Board did not follow those procedures.
Because the undisputed evidence in the record conclusively demonstrates that the peer-review action did not meet the standards specified by Congress in 42 U.S.C. § 11112(a)(2), (3), and (4), I conclude that Gila Regional and the individual members of its MEC, PRC, FHC, and Board who have now been added as Defendants are not “immune from [Plaintiffs] private damage claims stemming from the peer review action.” Broum,
IT IS ORDERED that the Defendant’s motion for summary judgment [Doc. 57] is DENIED.
Notes
. The Court recently granted Plaintiff's motion for leave to amend his complaint to add the named individuals referred to in his original complaint and some additional allegations. See Doc. 86. Perhaps in anticipation that the Court would grant the motion to amend, both parties cited to some of the exhibits attached to Plaintiff's motion to amend and his reply in support of their arguments related to summary judgment. Gila Regional's motion for summary judgment is not mooted by the filing of the amended complaint because it includes the new Defendants in its arguments, contending that "GRMC, and any person acting as a member of the professional review body, is immune from suit under [HCQIA]...." Doc. 57 at 1. The Court notes, however, that, according to the allegations in the second amended complaint, Dr. Ronald Dehyle, a physician whom Gila Regional hired to conduct an independent outside review, did not engage in any of the peer-review actions set forth in this opinion or in the amended complaint, and his findings were not submitted to Gila Regional until after the Board had issued its final order imposing the permanent sanctions and discipline, thus it cannot be said that the Board relied on his opinions in imposing its sanctions.
. It is unclear how the outside expert’s opinion was ever utilized. Gila Regional states that the Board did not send any cases to Dr. Dehyle until February 2, 2009, after it had decided to take negative action, Doc. 57 at 10, and the record indicates that Dr. Dehyle did not conduct his review until February 6, 2009, long after the fair hearing and two days after the Board of Trustees finally voted to permanently suspend Plaintiff’s privileges. See Doc. 44, Exs. Ml, M2, M5-M13; Doc. 46, Exs. M3, M4.
. The Defendant devoted only two short paragraphs of its brief to discussion of the New Mexico Act, thus I will do the same. Because I conclude as a matter of law that the Defendants’ actions were not reasonable under HCQIA, and the applicable sections regarding qualified immunity under New Mexico’s Review Organization Immunity Act ("ROIA”) similarly grants qualified immunity only if the peer-review individual or entity “act[ed] in the reasonable belief that [its] actions or recommendations [were] warranted by the facts known to [it] after reasonable efforts to ascertain the facts is made,” N.M.S.A. 1978 §§ 41-9-2, -4, I reach the same conclusion that the Defendants are not entitled to qualified immunity under the New Mexico Act.
. "The term 'professional review action' means an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician. Such term includes a formal decision of a professional review body not to take an action or make a recommendation described in the previous sentence and also includes professional review activities relating to a professional review action.” 42 U.S.C. § 11151(9).
. On November 17, 2008, the Chief of Staff was Dr. Twana Sparks, but she had been replaced by Michael Sargent by November 24, 2008. See Doc. 57, Exs. 1, 2.
. Thus there were six negative peer-review actions in this case: 1. The MEC's November 17, 2008 14-day summary suspension of Dr. Osuagwu’s privileges to perform elective laparoscopic procedures, and requirement that Dr. Nwachuku assist Plaintiff on all emergency laparoscopies during that 14-day period, pending investigation, for which Plaintiff did not receive any pre-suspension notice or hearing. 2. The PRC’s November 22, 2008 recommendation that the MEC continue the suspension of laparoscopic procedures. 3. The MEC's November 24, 2008 indefinite suspension of all gynelogical surgical privileges and imposition of a requirement that he obtain consultations for all obstetrical patients who had complications, also made without presuspension notice or hearing. 4. The FHC's December 22, 2008 recommendations that the MEC "restore [Plaintiff’s] Gynecology privileges except for the laparoscopic lysis of adhesions, institute ongoing focused chart review for [Plaintiff s] obstetric and gynecologic cases, mandate additional education for [Plaintiff] with regard to the indications for and techniques of laparoscopic lysis of adhesion, and require additional education for [Plaintiff] focused on risk management and medical records documentation.” 5. The MEC’s December 30, 2008 final indefinite suspension, imposed after the FHC hearing, in which the MEC continued the indefinite suspensions and requirements imposed on November 24 and also instituted “focused chart reviews” for all of Dr. Osuagwu's obstetrical patients; required 6 hours of CME within 6 months; and required Dr. Osuagwu to obtain "additional education with regard to the indications for and techniques for all gynecological surgery and receipt of information from an educator that Dr. Oswaguwu is competent to practice in a small town.” 6. The Board’s February 4, 2009 permanent adoption of the MEC's December 30, 2008 recommendations and suspensions. See Doc. 57, Exs. 1, 2, 4; Doc. 44, Ex. W at 2 (44-3 at 8); Doc. 44, Ex. N at 1 (44-1 at 23); Doc. 57 at 4, ¶ 8.
. Case numbers were assigned by the PRC and patient numbers were used for protection of privacy.
. Plaintiff states that he also consulted with Dr. Nwachuku, who concurred in the laparoscopy, see Doc. 63 at 4, but he apparently did not document that consultation in the hospital records and the MEC never asked him about the events leading up to the laparoscopy.
. It is difficult for me to understand how a physician who is not a gynecologist could give an opinion on the standard for care for a surgical gynecologist. My concern is supported by Dr. Neely, a member of the FHC panel who stated that, as an ER doctor, he did not feel comfortable trying to determine from his own review of hospital charts whether an obstetrical surgeon had done his job properly, and that he would have to rely on “what’s come before ... and make sure that it wasn’t skewed in some unfair way.” Tr. of December 15, 2008 hearing at 35 (Doc. 44, Ex. R(44-2 at 10)). Dr. Donnell, an anesthesiologist who was the chair of the FHC panel stated that, "to some degree,” relying on the PRC review forms and opinions was "appropriate,” even though none of the PRC's anonymous physician reviews and opinions were prepared by surgical gynecologists.
. The cases were sent to Defendant Dr. Dehyle, but not until February 2, 2009, after the Board had already finally decided to impose the harshest sanctions.
. See Doc. 57, Ex. 3; Doc. 44, Ex. W at 2.
. Plaintiff asked if Dr. Carreon had written down the names of physicians who allegedly told him that Plaintiff’s requests for surgical consultations were late, and which cases they were talking about, "because every single thing you say here today has to be backed up by some sort of proof. We are talking here about my life. I mean, we can't just throw things around. If you say that anybody said anything, you have to provide proof of it.” Tr. at 21 (Doc. 44, Ex. R) (44-2 at 7). Dr. Carreon responded, "I disagree. I was asked to come and give a summary.” Id.
. The outside expert who reviewed the cases in February 2009, after the Plaintiff’s privileges had been permanently suspended, stated, "complications can happen with surgery, so I can’t criticize MD unless he has a trend of similar complications. Dr. Nwachuku, I believe, should have called surgery sooner.” Doc. 44, Ex. M7 at 1.