no. 13-1076 in the supreme court of the united states ...€¦ · whether the petitioner’s...
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I
No. 13-1076
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2013
HANOVER UNIVERSITY GENERAL HOSPITAL,
ANTHONY B. GLOWER,
MARY ELIZABETH KREUTZER,
SEAMUS O. MILK, ALICIA POLISHOV,
Petitioners
v.
THOMAS L. RUTHERFORD,
Respondent
On Writ of Certiorari to the
United States Court of Appeals
for the Twelfth Circuit
Team 1311
Attorneys for Petitioners
I
QUESTIONS PRESENTED
I. Whether Respondent’s private ConnectSpace social media post concerning
his feelings on his grandson’s autism diagnosis, bare speculation on the
link of autism to vaccines, and criticism of his employer was protectable
speech on a matter of public concern, and whether circumstantial evidence
and self-serving testimony alone is sufficient to prove causation, and if so,
whether the Petitioner’s interests, viewed with appropriate deference, of
protecting efficient operations and public health, outweighed the value of
Respondent’s speech or, whether the hospital established it had legitimate
reasons, independent of the speech, to revoke Respondent’s privileges?
II. Whether trial courts may disregard the purely objective test adopted by
almost all Circuit Courts for determining if a physician has carried its
burden of evidence and persuasion required to rebut the statutory
presumption in favor of peer review panel immunity from monetary
damages for peer review actions under the Health Care Quality
Improvement Act and instead institute the Twelfth Circuit’s subjective
test, which weighs and considers evidence of a peer reviewer’s potential,
subjective motivations, bias, or perceived bad faith in determining
whether a physician has met this burden, and if so, whether the Twelfth
Circuit properly weighed physician’s circumstantial evidence of bias and
mere allegations of subjective bad faith against Petitioner’s objective,
albeit imperfect, evidence of a reasonable belief that its actions met the
standards for immunity under the HCQIA.
II
III
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... I
TABLE OF CONTENTS .............................................................................................. III
TABLE OF CITED AUTHORITIES ........................................................................... VI
OPINIONS BELOW ...................................................................................................... X
STATEMENT OF JURISDICTION .............................................................................. X
CONSTITUTIONAL AND STATUTORY PROVISIONS............................................. X
STATEMENT OF FACTS ............................................................................................. 1
PROCEDURAL HISTORY .......................................................................................... 11
SUMMARY OF ARGUMENT ..................................................................................... 14
STANDARD OF REVIEW ........................................................................................... 21
ARGUMENTS AND AUTHORITIES ......................................................................... 23
I. PLAINTIFF’S HAS NOT ESTABLISEHD ANY OF THE NECESSARY
ELEMENTS FOR A§1983 RETALIATION CLAIM IN VIOLATION OF THE FIRST
AMENDMENT ............................................................................................................. 23
A. Dr. Rutherford’s Blog Post Was Not Speech On A Matter of Public Concern .............23
i. The Content, Context, and Form of Dr. Rutherford’s Blog Post, as Revealed by the
Whole Record, All Point to Speech of a Private Matter ...................................................23
ii. Dr. Rutherford’s Blog Post Was Written as a Physician Employee, Not as a Private
Citizen ...............................................................................................................................26
IV
iii. To The Extent That Dr. Rutherford’s Speech Was On A Matter Of Public Concern,
It Would Correspondingly Interfere With The Regular Operations of the Hospital ......26
B. Plaintiff has not Shown Any Evidence Beyond A Temporal Link to Establish a
Causal Connection ...............................................................................................................27
C. HUGH’s Interests in Promoting Good Public Health Through Widespread
Vaccinations and Maintaining the HDRI Grant Funding Outweigh Dr. Rutherford’s
Interests in Expressing his Personal and Unsubstantiated Belief in a Link Between
Autism and Vaccinations .....................................................................................................28
i. Dr. Rutherford’s Speech Was Incorrect, Dangerous to Public Health, and
Undeserving of any Weight to Balance Against HUGH’s Substantial Interest in
Promoting Good Public Health.........................................................................................29
D. HUGH Has Demonstrated A Preponderance of Evidence that It Would Have Decided
to Revoke Dr. Rutherford’s Privileges even Absent the Protected Speech .........................31
II. HUGH IS IMMUNE FROM DAMAGES FOR PLAINTIFF’S REMAINING
CAUSES OF ACITON UNDER THE HCQIA ............................................................ 31
A. Bad Faith is Irrelevant to the Question of Whether There was an Objectively
Reasonable Basis for the Peer Review Action, Which is What Congress Required Under
the HCQIA and What the Overwhelming Majority of Courts Have Applied .....................32
B. Under an Objective Standard, the Court Need Only Examine Whether a Reasonable
Belief Existed Based on the Objective Facts In Evidence at the Time the Adverse Action
was Taken That The Statutory Standards For Immunity Were Met Under the HCQIA ..35
i. The Committee’s Investigation Uncovered Sufficient Evidence to Establish a
Reasonable Belief that Revoking Dr. Rutherford’s Privileges Would Further Quality
Health Care ......................................................................................................................35
V
ii. HUGH Made Its Decisions After a Reasonable Effort to Obtain the Facts of the
Matter ...............................................................................................................................38
iii. HUGH Afforded Dr. Rutherford with Adequate Notice and Opportunity for Fair
Hearing Under the Circumstances and Under Any Circumstances ...............................39
a. HUGH Satisfied the Safe Harbor Provisions for Adequate Notice and Hearing ....39
b. Even if the Court Determines that HUGH Did Not Satisfy the Safe Harbor
Provisions, Dr. Rutherford Had Adequate Notice and Hearing Under the
Circumstances. .................................................................................................................42
c. Dr. Rutherford’s Evidence of a Biased Panel are Irrelevant to Adequate Notice and
Hearing .............................................................................................................................42
iv. HUGH Reasonably Believed that its actions were Warranted by the Facts Known
at the Time of the Decisions after Reasonable Efforts to Obtain the Relevant Facts and
After Meeting the Requirements of Adequate Notice and Hearing ................................43
CONCLUSION ............................................................................................................. 44
APPENDIX A ................................................................................................................. 1
APPENDIX B ................................................................................................................. 1
APPENDIX C ................................................................................................................. 1
VI
TABLE OF CITED AUTHORITIES
Supreme Court Cases
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986)…………………………………………………………21
Bd. of County Comm’rs v. Umbehr,
518 U.S. 668 (1996)………………………………………………………14, 25
Celotex Corp. v. Catrett,
477 U.S. 317 (1986)……………………………..……………………………21
Connick v. Myers,
461 U.S. 138 (1983)…………………………………………12, 14, 15, 23, 24
Garcetti v. Ceballos,
547 U.S. 410 (2006)………………………………………………...……14, 26
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986)…………..………………………………………………21
Mt. Healthy City School Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977)…………..………………………………………………14
Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U.S. 563 (1968)…………..…………………………………………..12, 15
Rosenberger v. Rector and Visitors of Univ. of Va.,
515 U.S. 819 (1995)…………..………………………………………………26
United States v. Treasury Employees,
513 U.S. 454 (1995)…………..………………………………………………27
Waters v. Churchill,
VII
511 U.S. 661 (1984)…………..…………………………………………..16, 27
Federal Cases
Addis v. Holy Cross Health System Corp.,
88 F. 3d 482 (7th Cir 1996)………….………………………………………31
Alexander v. Rush N. Shore Med. Ctr.,
101 F.3d 487 (7th Cir. 1996)…..…………………………………………….25
Austin v. McNamara,
979 F.2d 728 (9th Cir. 1992)…..………………………………………..22, 30
Bradley v. Pittsburgh Bd. of Educ.,
913 F.2d 1064 (3d Cir. 1990)…………..……………………………………17
Brown v. Presbyterian Healthcare Servs.,
101 F.3d 1324 (10th Cir. 1996)…………..…………………………….19, 30
Bryan v. James E. Holmes Regional Med. Ctr.,
33 F.3d 1318 (11th Cir. 1994)…………..…………………………………..30
Ezekwo v. New York City Health & Hosp. Corp.,
940 F.2d 775 (2d Cir. 1991)…..……………………………………………..24
Freilich v. Upper Chesapeake Health, Inc.,
313 F.3d 205 (4th Cir. 2002)…..…………………………………………….30
Imperial v. Suburban Hosp. Ass’n, Inc.,
37 F.3d 1026 (4th Cir. 1994)…..…………………………………………….30
Kelly v. United States,
924 F.2d 355 (1st Cir. 1991)…..…………………………………………….21
Lee v. Trinity Lutheran Hosp.,
VIII
408 F.3d 1064 (8th Cir. 2005)..……………………………………………..30
Lewis v. Cowen,
165 F. 3d 154 (2d Cir. 1999)…………..…………………………………….23
Mathews v. Lancaster General Hosp.,
87 F.3d 624 (3rd Cir. 1996) …………..………………………………...29, 32
Moore v. Williamsburg Reg. Hosp.,
560 F. 3d 166 (4th Cir. 2009)…………..……………………………………29
Meyers v. Columbia/HCA Healthcare Corp.,
341 F.3d 461 (6th Cir. 2003)…………..…………………………………….30
Poliner v. Tex. Health Sys.,
537 F.3d 368 (5th Cir. 2008)…………..…………………………………….29
Ruotolo v. City of New York,
514 F.3d 184 (2d Cir. 2008)…………..…………………………………23, 24
Smith v. Ricks,
31 F.3d 1478 (9th Cir. 1994)…..……………………………….32, 33, 35, 39
Sugarbaker v. SSM Health Care,
190 F.3d 905 (8th Cir. 1999)…………..…………………………………….30
Wayne v. Genesis Med. Ctr.,
140 F.3d 1145 (8th Cir. 2001)…………..…………………………………..39
Williams v. Mehra,
186 F.3d 685 (6th Cir. 1999)…………..…………………………………….22
Federal District Cases
Bender v. Suburban Hosp.,
IX
998 F. Supp. 631 (D. Md. 1998)…………..………………………………...26
Egan v. Athol Memorial Hosp.,
971 F. Supp. 37 (D. Mass. 1997)…………..………………………………..33
Imperial v. Suburban Hosp. Ass’n, Inc.,
862 F. Supp. 1390 (D. Ma. 1993)…………..……………………………….34
Singh v. Blue Cross and Blue Shield of Massachusetts, Inc.,
182 F. Supp. 2d 164 (D. Mass. 2001)…………..…………………18, 22, 29
State Cases
Meyer v. Sunrise Hosp.,
22 P.3d 1142 (Nev. 2001)…………..………………………………………..33
Statutes
42 U.S.C. § 1983…………..……………….……………9, 10, 11, 12, 14, 17, 22, 25
Health Care Quality Improvement Act of 1986,
42 U.S.C § 111101………..………………………………………………passim
42 U.S.C. § 11111………..…………………………………………….....passim
42 U.S.C. § 11112………..……………………………………….……….passim
Secondary Sources
Paul Fine, Herd Immunity: History, Theory, Practice,
15 Epidemiology Rev. 2 (1993),
http://epirev.oxfordjournals.org/content/15/2/265.full.pdf+html?ijkey=9838505
98fa4228ee65eded1b2f63fda04749046&keytype2=tf_ipsecsha.28
Hideo Honda, Michael Rutter, Yasuo Shimizu, No Effect of MMR Withdrawal on the
Incidence of Autism: A Total Population Study,
X
46 J. Child Psychol. & Psychiatry 6, 572-579 (2005)…..…………..……27
Anthony W. Rogers, Comment, Procedural Protections During Medical Peer Review:
A Reinterpretation of the Health Care Quality Improvement Act of 1986,
111 Penn St. L. Rev. 1047.…..………………………………………………25
Priya Shetty, Experts Concerned About Vaccination Backlash,
375 The Lancet 9719, (2010),
http://www.thelancet.com/journals/lancet/article/PIIS0140-
6736%2810%2960421-7/fulltext…………..………………………………..28
OPINIONS BELOW
The opinion of the United States District Court for the District of Hanover
(No. Civ-12-523) is unreported and is contained in the record. R. at 1-14. The
opinion of the Court of Appeals for the Twelfth Circuit (No. 13-275) is also
unreported and is also contained in the record. R. at 15-24.
STATEMENT OF JURISDICTION
The requirement of a formal statement of jurisdiction has been waived per
rule 4(a)(i) of the Official Rules of the National Health Law Moot Court
Competition.
CONSTITUTIONAL AND STATUTORY PROVISIONS
This case implicates the First Amendment of the United States Constitution.
This case also implicates 42 U.S.C. § 1983 and The Health Care Quality
Improvement Act of 1986, 42 U.S.C. § 11111 et seq. (2006) (hereinafter HCQIA).
XI
The relevant provisions of these statutes are set forth in the appendix. Appendix at
A 1, B 1, and C 1-16.
1
STATEMENT OF FACTS
Plaintiff, Dr. Thomas Rutherford is a teacher, researcher and cardiac surgeon
with clinical privileges at Hanover University General Hospital (HUGH). R. at 1, 4
n. 1. On July 31, 2012, HUGH, through a letter (“July 31 letter”) from its C.E.O.,
Dr. Norbert Flax, informed Rutherford that in response to an investigation by its ad
hoc committee, the HUGH Medical Executive Committee (MEC) voted to
recommend to the HUGH Board of Trustees (“the board”) to revoke Rutherford’s
privileges at HUGH and terminate his appointment to Active Staff. R. at 5. Dr.
Rutherford was informed in the July 31 letter that this decision was based upon
“unacceptably high rates of morbidity and postoperative complications, failure to
meet the (HUGH) standard of care, and conduct that impedes quality patient care”
and reminded him of his right to a fair hearing to challenge the recommendation.
R. at 5. Dr. Rutherford declined in writing to attend a hospital hearing and detailed
his reasons for disagreeing with the ad hoc committee’s findings. Id. Dr.
Rutherford believes that the decision to revoke his privileges was actually
retaliation for a post he wrote on ConnectSpace. R. 6.
The ConnectSpace Post
The ConnectSpace post (“the post”) at issue was written by Dr. Rutherford
and published on Dr. Rutherford’s personal ConnectSpace page on June 11, 2012.
R. at 1. The post, titled “First, Do No Harm to Children?” initially discusses a
heartbreaking diagnosis, three days prior to the post, of autism in Dr. Rutherford’s
grandson. Id. The post begins with how Dr. Rutherford felt the news was shocking.
Id. The post then states that Declan (Dr. Rutherford’s grandson) was vaccinated,
2
and that he “approved.” Id. He confesses to the readers that “docs” like him “scoff
at the autism-vaccines link”, that he “personally won’t do so any more. The post
then turned from sorrow and personal blame to criticism of his employer as Dr.
Rutherford suggests an ulterior profit driven motivations for HUGH’s participation
in the Hanover Disease Research Institute (HDRI) 99 Percent grant, which aims to
increase vaccination rates among children, and suggested a link between
vaccinations and autism. R. at 2. The post refers to vaccinations as “the great
American uncontrolled experiment on little kids” and suggests that HUGH
promotes vaccinations for money and fringe benefits stating “the more we jab, the
more cash HUGH gets. And photos with the governor. And trinkets.” Id. The post
begins and ends with personal references to his grandchild and uses informal
language, references to his daughter and wife by first name, and includes a
photograph of his grandchild. Id.
ConnectSpace is a social media platform which allows the users to share
messages and pictures with others through the creation and editing of online pages.
“ConnecSpace is essentially an electronic verson of a personal journal.” R. at 8 n.7.
Id. A user may set his or her page/s to private, meaning that only persons who the
user identified as “friends” by sending or accepting a friend request may directly
view the pages. Id. While Dr. Rutherford had his page set to private, on the day he
published the post, he had 1011 friends who could view the pages and forward them
to persons who were neither friends of Dr. Rutherford, nor even ConnectSpace
users. Id. In fact, three of Dr. Rutherford’s friends individually forwarded his post
to Dr. Anthony B. Glower. Id.
3
Dr. Glower then forwarded a link to the post to Dr. Alicia Polishov, HUGH’s
Chief of Medicine and chair of its Medical Executive Committee (MEC) via text
message on June 12, 2012, to which she simply replied “Let’s Talk.” Id. Dr. Glower
believed that Dr. Rutherford’s post was disrupting both the HDRI grant as well as
the public health of any children whose parents might see the post. R. at 3. In an
email message to Dr. Polishov, Dr. Glower suggested that Dr. Rutherford’s post was
based on improper motives, such as envy, the financial strain of the recent loss of
his Doda Stent patent, or resentment over the photo of Drs. Glower and Polishov
with the governor referenced in the post. Id. On the morning of June 14, 2012, Dr.
Glower emailed Dr. Polishov warning that Dr. Rutherford was endangering the
HDRI program. Id. In accordance with HUGH bylaws 19.01(a), any person may
provide information in writing to any member of the HUGH MEC regarding
conduct, performance, or competence of any physician at HUGH. R. at 25.
According to the bylaws 19.01(a), if any “reliable information indicates a physician
member may have exhibited acts, demeanor (temperament), or conduct, reasonably
likely to be detrimental to patient safety or to the delivery of quality patient care,
disruptive to Hospital operations, contrary to the bylaws or Hospital staff rules, or
below applicable professional standards, the MEC may initiate an investigation
against such member. Id. Dr. Alisha Polishov as Chair of the MEC was authorized
by the bylaws 19.01(c) to appoint an ad hoc committee to investigate Dr.
Rutherford. Id.
Formation of the Ad Hoc Committee and Recommendation of the MEC
4
On July 1st, Dr. Alicia Polishov informed Dr. Rutherford by certified letter
(“July 1 letter”) that an ad hoc committee would be formed to investigate Dr.
Rutherford to determine whether the MEC should recommend to restrict or revoke
Dr. Rutherford’s privileges. R. at 4. The letter informed explained that the ad hoc
committee would investigate infection rates and patient records, temperament, and
compliance with Hospital staff rules. Id. The letter further informed Dr.
Rutherford of several of his rights, including a right to a counsel and a fair hearing
if the MEC ultimately took any disciplinary action against him. Based upon the
July 8 through July 31 investigation of its ad hoc committee, the Medical Executive
Committee (MEC) of HUGH recommended to the medical board of HUGH to revoke
Dr. Rutherford’s privileges. R. at 5, 16. The ad hoc committee was formally
configured on July 8, 2012 by Dr. Glower, Dr. Seamus Milk, Dr. Ronald Ling, and
Mary Elizabeth Kreutzer, R.N., D.N.P. R. at 4, 16. Dr. Milk is a recently retired
cadio surgeon and is in a relationship with Dr. Polishov. R. at 13. Director
Kreuzter, who holds a doctorate in practical nursing was serving ex officio as the
Director of Nursing at HUGH—her primary role in the committee was to provide
information from the nursing staff. R. at 4-5. Dr. Ling is a general surgeon at
HUGH, he also chairs the Surgery Department and serves as the Director of
Quality Enhancement Initiatives. R. at 4. Drs. Glower and Ling are also members
of the MEC. R. at 4 n.3.
Findings of the Board
Operating Record
5
The ad hoc committee examined Dr. Rutherford’s record and documents
regarding his work as a member of the Active Staff at HUGH over a six year period
from July 2006 to June 2012 and considered interview answers of members of the
Hospital’s staff. R. at 4-5. The ad hoc committee determined Dr. Rutherford had
“unacceptably high rates of morbidity and postoperative complications” and failed
“to meet the Hanover University General Hospital standard of care” during this
period. R. at 11. Within this six-year period, Dr. Rutherford lost 7 patients on the
operating table. R. at 11. Only four out of fifteen cardiac surgeons lost more
patients on the table than Dr. Rutherford during this period. Id. This placed Dr.
Rutherford well below half for morbidity ratings among cardiac surgeons at HUGH.
Id. Dr. Rutherford’s post-operative infection rate was 22%, compared to the hospital
average of 15%. Id. In a letter to the MEC, Dr. Rutherford contended that his
infection rate was related to a four month period when the Hospital’s HVAC system
was malfunctioning, and that during this time there was an overall spike in patient
infections. R. at 5.
Temperament and Hospital Guidelines
The ad hoc committee also determined that Dr. Rutherford engaged in
“conduct that impedes quality patient care.” R. at 5. Its report noted instances of
“aggressive rudeness” on the part of Dr. Rutherford towards the surgical nurses. R.
at 11. It also described an incident in 2005 where Dr. Rutherford shouted at the
wife of a patient whose Doda Stend had led to complications for more than five
minutes in front of witnesses. Id. The ad hoc committee also examined two
6
complaint letters, one from 2007 and one from 2009, which described Dr. Rutherford
as abusive towards patients and prospective patients. Id.
Dr. Rutherford’s Response
Dr. Rutherford’s evidence refuting the ad hoc committee’s finding consist
almost entirely of his unsubstantiated speculations and opinions with regard to the
“hidden” agenda of the review committee, and a response letter written to the MEC
after receipt if the MEC’s decision to revoke privileges. R. at 5-6. In a response
letter to the MEC, Dr. Rutherford alleged that his patients needing the Doda Stent
tend to be very physically vulnerable, and that relative to these patients, his record
was extremely good. R. at 5. Dr. Rutherford did not otherwise rebut the accuracy of
the findings, did not suggest that he performed more surgeries during the 4 month
period in question than in the other 68 months under review, and did not present
any evidence of other cardiac surgeons’ records with regard to surgeries for patients
requiring a Doda Stent.1 Dr. Rutherford never refuted any of the committee’s
findings of rudeness or abusive behavior, but did describe his temperament as
“fine”. (Rutherford Dep. 46:5-26.)
In speculating about the review, Dr. Rutherford stated “They can tell
everybody they doubled-checked I’m okay as a surgeon even though I’m an ass
about pediatrics on my ConnectSpace page, right. That’s what I figured.
(Rutherford Dep. 47:7-24.) He continued, “You’d think they’d be rational. I make
1 Although immaterial to the findings of the committee or the elements of the claim, we note, because
the appellate court did so, that Dr. Rutherford discovered the HVAC system was piping sewer
exhaust into recovery rooms, causing the temporary spike in infections. R. at 21. Another fact
important to the appellate court, but ultimately immaterial to the findings or claims, is that Dr.
Rutherford is a co-inventor of the Doda Stent, which went off patent four years prior to the post at
issue. R. at 3, 15, 21.
7
money for them, I have nothing to say about whether any kid in Hanover gets
vaccinated. They drank the Kool-Aid and couldn’t stop. (Rutherford Dep. 47:7-24.)
When explaining why he waived his right to a fair hearing, Dr. Rutherford
stated “There was nothing to say. I assumed I’d be fine when this whole thing
started, and if not, if it’s a kangaroo court, then I can’t do anything in it. My record
speaks for itself. It’s numbers, not verbiage.” (Rutherford Dep. 46:5-26.) Regarding
the fair hearing, Dr. Rutherford claimed “This so-called “fair hearing” would just
waste time. I knew the Board was going to be the one to do the right thing here.”
(Rutherford Dep. 46:5-26.) In speculating on why the investigation took place, Dr.
Rutherford claimed “I was a problem. Here’s Polishov and Glower bragging about
HDRI money, hoping for more in 2015 … It’s just Connect Space but they’re
embarrassed. I figure Alicia and the people above her have to rough me up a little,
you know, reassure the HDRI and whoever that Hanover University and its
hospital are on board, right thinking. Tony’s her pal, Seamus is her boyfriend, Ron
goes along to get along, he always dId. Kreutzer pushes papers in another building,
I don’t deal with her…. You’d think they’d be rational. I make money for them, I
have nothing to say about whether any kid in Hanover gets vaccinated.”
(Rutherford Dep. 47:7-24.)
Adherence to Bylaws
Dr. Rutherford’s strongest argument that Bylaws were not followed involves
the fact that an oral rather than written report of the ad hoc committee’s
investigation findings was provided to the MEC, violating Bylaw 19.01(e) and that
the MEC did not indicate in its minutes that an investigation was appropriate or
8
that it determined corrective action was warranted based on the investigation, thus
technically violating Bylaw 19.02(a) and 19.01(a). R. at 12, 25. Conventionally
speaking however, the findings of the ad hoc committee and the determinations of
the MEC were ultimately written and recorded when they were disclosed to Dr.
Rutherford in the July 1 and July 31 letters. R. at 4-5. With one other immaterial
and possibly incorrect exception, there is no evidence in the record that HUGH
actually failed to abide by any of its bylaws.2
Dr. Rutherford also alleged other violations of the Bylaws, for instance: 1) the
MEC did not create an official record when the ad hoc committee was formed, 2) the
MEC did not first attempting collegial intervention, 3) the ad hoc committee did not
interview Dr. Rutherford, 4) the ad hoc committee did not interview other cardiac
surgeons, and 5) the MEC did not initiate the investigation based on an official
written complaint providing a record of reliable information. R. at 12. Dr.
Rutherford lastly complains that the peer review panel was inadequate because it
did not contain fellow practicing cardiologists. Id.
Upon examination of the hospital Bylaws, there is no requirement in for an
official record on the formation of the ad hoc committee, only of notification to the
physician, which occurred in Dr. Polishov’s July 1 letter, and the final written
2 According to Bylaw 19.02(b), upon notification of the MEC’s decision, if corrective action is deemed
appropriate, the Chair of the MEC (Dr. Polishov) shall promptly give the physician special notice,
which includes a description of the adverse action and reasons for it, a copy of the Bylaws, and an
offer to provide the physician a fair hearing. R. at 25. The July 31 letter was purportedly sent to Dr.
Rutherford by HUGH’s CEO, Dr. Norbert Flax, rather than Dr. Polishov, though Dr. Flax as CEO
would presumably be a supervisor to Dr. Polishov, and in any case sent notification to Dr. Rutherford
the day a decision was reached by the MEC including a description of the action, the reasons for it,
an notification of fair hearing opportunities. R. at 5. Moreover, this may have been a minor
typographical error as the record also later states that the July 31 letter was sent by Dr. Polishov
and endorsed by Dr. Flax. R. at 11. The record does not indicate whether the July 31 letter
specifically did or did not include a copy of the Bylaws, though the July 1 letter from Dr. Polishov
directly referenced Article 19 of the Bylaws, which are the Bylaws at issue.
9
report of the ad hoc committee’s findings, which were discussed above. R. at 25.
Second, according to 19.01(a) the MEC need only “consid[er] whether collegial
intervention may be appropriate,” there is no obligation to attempt collegial
intervention. Id. Third, under Bylaw 19.01(f) “the physician shall be given an
opportunity to provide information in a manner and upon such terms as the
investigating body deems appropriate.” This could mean no opportunity if the body
deems those terms appropriate, but more logically could refer to the physicians
right to request a hearing detailed under Bylaws 19.02 (c). Fourth, Bylaw 19.01(d)
only states that the committee “may, but need not, conduct interviews with persons
knowledgeable about the practitioner under review.” Fifth, the record shows that
Dr. Polishov received a written complaint letter about Dr. Ruthorford in 2007
regarding abusive behavior to patients, and two emails by Dr. Glower regarding Dr.
Rutherford’s conduct. R. at 4. 11. Since there is no timetable specified in the
Bylaws to act upon a written complaint, either of these complaints would suffice
under the plain language of the Bylaws as reliable information warranting further
investigation. Lastly, Bylaw 19.01(d) suggests, but does not require, consideration
of outside peer review. R. at 25.
Causes of Action
Dr. Rutherford retained counsel, and, after waiving his right to a fair hearing
at HUGH, initiated two proceedings on August 7, 2012; (1) an appeal to the board
seeking a reversal of the revocation decision and reinstatement of his privileges and
(2) a civil action in the United States District Court for the District of Hanover. R.
at 6. Dr. Rutherford brought a claim under 42 U.S.C. § 1983 claiming the alleged
10
retaliation violated his First Amendment rights and that the revocation of
privileges deprived him of due process afforded under the Fifth and Fourteenth
Amendments as well as three common law state claims for breach of contract,
intentional infliction of emotional distress, and defamation. R. at 6, 10. On August
24, the board informed Dr. Rutherford it had reversed the revocation of privileges
but gave no reason for the decision. R. at 6. Dr. Rutherford returned to full duties
on August 28. Id. Shortly thereafter, Dr. Rutherford withdrew his Fifth and
Fourteenth Amendment due process claims on September 8, 2012. Id. Defendants
moved for Summary Judgment to dismiss the federal §1983 claim and to obtain
statutory immunity for monetary damages for all state common law claims under
§42 U.S.C. 11111, the Health Care Quality Improvement Act (HCQIA). Id.
Stipulations
Solely for the purposes of this motion, both parties have stipulated that the
board’s reversal does not moot Dr. Rutherford’s common law claims due to the lost
income while his privileges were revoked. R. at 6 n.5. HUGH has agreed that as a
public hospital, it is a state actor for § 1983 purposes. R. at 6 n.4. HUGH does not
raise any issues under § 1983 regarding qualified immunity or municipal liability.
Id. Both parties have stipulated that the loss of privileges is an adverse action for
purposes of § 1983 analysis, thus analysis of that element is unnecessary. R. at 8
n.6. All of Dr. Rutherford’s common law claims prey for monetary damages. R. at
Neither the district court nor the appellate court addressed the merits of the
common law. The analysis for immunity under the HCQIA is the same for all
defendants, accordingly, just as the district court and appellate court, when
11
referring to HUGH as a defendant we refer to all individually named defendants as
well.3
PROCEDURAL HISTORY
The District Court of Hanover granted Defendant HUGH’s Motion for
Summary Judgment on all claims and dismissed the case. R. at 13-14. The District
Court of Hanover found no genuine issue of material fact under plaintiff’s claim
under 42 U.S.C. § 1983. The district court held that plaintiff’s speech was not on a
matter of public concern, and that regardless, the hospital’s interest in avoiding
disruption in the workplace outweighed plaintiff’s interests in speaking. R. at 8-9.
Additionally, the district court found that plaintiff failed to provide any evidence of
the speech being a substantial or motivating factor for the adverse action beyond
plaintiff’s own conjecture and speculation. R. at 10. As to all common law state
claims, the district court found that HUGH enjoyed immunity under the HCQIA. R.
at 7. The district court held that plaintiff failed to rebut the presumption that
HUGH’s professional review actions met the standards to qualify for immunity
under 42 U.S.C. § 11111(a)(1). Id. The court analyzed plaintiff’s arguments on
paragraphs 1, 3, and 4 of 42 U.S.C. § 11112(a) Professional Review Standards,
finding none of plaintiff’s arguments legally sufficient to rebut the presumption that
HUGH met these standards. Id.
3 Dr. Seamus and nurse Kreutzer as well as any hospital staff they interviewed could separately be
liable as persons supplying information to the review panel and thus in theory could separately lose
immunity for providing information under 42 U.S.C. § 11111(a)(2) if “such information is false and
the person providing it knew that such information was false.” However, Dr. Rutherford has not
named any witnesses, and has supplied no evidence nor even the allegation that any member of the
peer review panel or any witnesses participating in the peer review action gave any false
information, much less knew it was false.
12
Plaintiff, Dr. Rutherford appealed the trial court decision. R. at 15. The
Twelfth Circuit Court of Appeals reversed the grant of summary judgment and
remanded for a new trial. R. at 23. The court of appeals relied upon circumstantial
evidence between the timing of Dr. Glower’s report to Dr. Polishov regarding
plaintiff’s post and the subsequent formation of the professional review panel and
investigation in proximity to plaintiff’s post to conclude that plaintiff’s post, rather
than his medical record, were the ultimate reason for the MEC’s recommendation
for revocation of Dr. Rutherford’s privileges. R. at 16. The court of appeals found
that Dr. Rutherford’s post was speech on a matter of public concern, and that
HUGH would need to supply additional evidence on the potential or actual
disruption to prevail under § 1983, instructing that the question of motive should be
left to the jury. R. at 17, 19.
Defendants-Appellees HUGH appealed the Twelfth Circuit Court of Appeals
decision to the U.S. Supreme Court. R. at 27. On July 16, 2013 The Court granted
petition for writ of certiorari to the Twelfth Circuit Court of Appeals, limited to the
following two Questions:
1. Whether Respondent’s social media post was speech protected by the First
Amendment, and if so, whether the lower court applied the Pickering-
Connick balancing test to that speech correctly?
2. What evidence may be considered to overcome the presumption that a
peer review panel’s actions meet the standard for immunity under the
Health Care Quality Improvement Act, including whether the trial court
13
should consider evidence of decision-maker bias, and did the lower court
properly find that Respondent had overcome that presumption? Id.
14
SUMMARY OF ARGUMENT
Since immunity under the Health Care Quality Improvement Act do not
apply to claims alleging civil rights violations, and because the § 1983 claim of
retaliation for protected First Amendment speech is the sole reason for federal
jurisdiction in this case, we start with analysis on the merits of the § 1983 claim.
Health Care Quality Improvement Act of 1986, 42 U.S.C. 11111(1). In order for a
government employee to prevail on a § 1983 claim of retaliation under the First
Amendment, “the employee must prove that the conduct at issue was
constitutionally protected, and that it was a substantial or motivating factor in the
[adverse action].” Bd. of County Comm’rs v. Umbehr, 518 U.S. 668, 675 (1996). If
the employee meets this burden, the government can escape liability by showing
that it would have taken the same action even in the absence of the protected
conduct. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977). Even an adverse action that is because of protected speech may be justified
when legitimate countervailing government interests are sufficiently strong.
Umbehr, 518 U.S. at 675. The court has expanded upon this test in subsequent
decisions, setting a threshold requirement that the employee speech is only
protectable when it “falls within the core of First Amendment protection—speech on
matters of public concern.” Connick v. Myers, 461 U.S. 138, 148 (1983). The speech
must not be pursuant to any official duties of the employee. Garcetti v. Ceballos,
547 U.S. 410, 424-26 (2006). A government employee’s First Amendment rights are
determined by a “balance between the interests of the employee, as a citizen, in
commenting upon matters of public concern and the interest of the State, as an
15
employer, in promoting efficiency of the public services it performs through its
employees.” Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty.,
391 U.S. 563, 568 (1968).
“Whether an employee’s speech addresses a matter of public concern musts
be determined by the content, form, and context of a given statement, as revealed
by the whole record.” Connick, 461 U.S. at 147-48. The content of Dr. Rutehrford’s
post was private in nature, discussing his personal sorrow and possible guilt over
the diagnosis of his grandchild. The informal context of a blog post, shared with
online “friends” and written days after receiving “shocking” news point to a personal
nature, rather than a speech intended to affect broad social change or further the
spread of information to the general public. The form, through the medium of a
personal online blog is evidence of a private rather than public communications.
The only portions of Dr. Rutherford’s post which even remotely touch on
matters of public concern are the supposed link of vaccines to autism, and the
motivations of HUGH in vaccinating children. If Dr. Rutherford brought to light
new or even accurate information linking autism to vaccinations, his speech would
likely be protected. However, Dr. Rutherford’s addition to the public debate is that
his grandson received a vaccine, and subsequently was diagnosed with autism. His
position as a physician may add an air of authority absent from the average citizen,
but Dr. Rutherford fails to utilize his researcher or physician skill set to actually
research the link or provide new or even relevant information to the debate.
Rather, he repeats the all-to-familiar conspiracy theory that because most kids that
are diagnosed with autism also had vaccinations, the latter event causes the former
16
effect. Further, Dr. Rutherford’s position as a HUGH insider and cardiac surgeon
does not inform his position on HUGH’s motivations for the program or pediatrics.
However, due to his association with HUGH and reference to his being a Doctor
working at HUGH within the post, readers may give a higher level of benefit of
doubt and assume Dr. Rutherford knows of unstated evidence that would not be
attributed to a regular citizen making the same baseless accusations.
When balancing Dr. Rutheford’s interests in exercising his right to speech
with the HUGH’s interest in promoting efficient delivery of public services, it is
imperative to examine not just the daily disruption to HUGH’s employees, but also
the ultimate potential health consequences for Hanover and other communities and
their children if parents heed Dr. Rutherford’s message. HUGH in engaged in a
public health initiative aimed at increasing the proportion of children vaccinated.
Parents reading Dr. Rutherford’s post, or excerpts of it, may slow down the efficient
delivery of services at HUGH by requiring other physicians to take time away from
other patients to explain the overwhelmingly positive effects of vaccinations and
debunk the unsubstantiated myths of the vaccine-autism link to worried parents.
Further, any parents who inevitably decide to decline vaccinating their children
endanger the entire community and disrupt HUGH’s ultimate mission of promoting
public health and safety. To the extent that Dr. Rutherford may also endanger
reinstatement of the HDRI grant, the monetary consequences to HUGH, and the
ultimate corresponding decline in services available to the Hanover community
from the disappearance of those funds are too great to require Hanover to wait and
see the extent of the harm. Waters v. Churchill, 511 U.S. 661, 681 (1984) (noting
17
that in hospital settings, “potential disruptiveness was enough to outweigh
whatever First Amendment value the speech might have had”).
To prevail on a §1983 claim, a plaintiff must establish a causal connection
between the protected speech and the ultimate adverse action, meaning that the
speech was a substantial or motivating factor in ultimately taking the adverse
action. Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1075 (3d Cir. 1990). At
best, Dr. Rutherford may demonstrate that a reasonable jury could conclude that
his post was the motivating factor in initiating the investigation into his record.
However, Dr. Rutherford’s sole evidence tying the speech to the action are the short
duration between writing the post and the revocation of privileges, and the fact that
Dr. Glower complained about Dr. Rutherford to Dr. Polishov, who ultimately
initiated the investigation into his patient care record. The fact that Dr. Rutherford
was subjected to increased investigative scrutiny, however, is neither sufficient to
constitute an adverse action, nor evidence that the ultimate decision to take an
adverse action. The parties only stipulated that the ultimate revocation of
privileges was an adverse action to Dr. Rutherford, an investigation into his record,
while rarely welcome, is not such an adverse event for § 1983 purposes. The
investigation brought to light several troubling facts regarding Dr. Rutherford’s
medical record, which, taken independently, serve as sufficient reason to revoke Dr.
Rutherford’s privileges. Further, there is no mention in the record anywhere that
the ad hoc committee, or the MEC based its decision in any part on the content of
the post, or that the board reversed the revocation based upon the post. The only
18
evidence is thus circumstantial, consisting of Dr. Rutherford’s self-serving
speculations as to the motivations of HUGH in revoking his privileges.
Under the remaining common law claims of defamation, intentional infliction
of emotional distress, and breach of contract, HUGH as a hospital and the
individual named defendants, pursuant to their roles in the professional review of
Dr. Rutherford, are entitled to immunity from monetary damages liability for any
suit related to a peer review action under the HCQIA so long as the peer review
action was 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
requirements of paragraph (3). 42 U.S.C. §§ 11111(a) & 11112(a). HUGH is
statutorily presumed to have met these standards, and Dr. Rutherford has the
burden not only of providing evidence to refute this presumption, but also of
persuading the court that HUGH failed to meet these standards by a preponderance
of the evidence. 42 U.S.C. 11111(a); Singh v. Blue Cross/Blue Shield of Mass., Inc.,
308 F.3d 25, 33, n.5 (1st Cir. 2002). Dr. Rutherford has not established a
preponderance of evidence as to any of these standards.
Even if the court agreed with Dr. Rutherford that his post was the primary
reason for taking the action, this would support a reasonable belief that revoking
Dr. Rutherford’s privileges would alleviate the potential harm created by Dr.
19
Rutherford’s incompetent speech convincing any parents in Hanover to decline
vaccinating their children. Removing the force of Dr. Rutherford’s message by
disassociating him from HUGH would have reasonably been calculated to promote
quality care. More importantly, HUGH has supplied sufficient independent
objective evidence of higher than average morbidity and postoperative complications
in Dr. Rutherford’s patient record to reasonably believe that revoking his privileges
would further quality health care.
While Dr. Rutherford qualified some of the disturbing data about his patient
care record, he did not refute the mathematical accuracy of the findings. HUGH
investigated six years of Dr. Rutherford’s records, going back three years prior to
the HVAC malfunction explanation that Dr. Rutherford relies upon to minimize his
record. However, one four month period of unusually high postoperative
complications within a six year record do not establish a thin or misleading portion
of the physician’s record. Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324.
While HUGH could have obtained even more information, it had no duty to examine
each negative fact in the light most positive to Dr. Rutherford. HUGH objectively
examined Dr. Rutherford’s record comparing his record to that of all other cardiac
surgeons and to those of the hospital at large during the same six year period.
Further, there is no objective evidence that obtaining or considering more
information would have led to the ad hoc committee or the MEC to reach a different
result, or that any of the information relied upon was false, misleading, or
insufficient so to conclude that HUGH’s reliance upon it was completely
unreasonable or unfounded.
20
Dr. Rutherford was consistently apprised of his rights to a fair hearing,
during the investigation, and was given prompt notice of the formation of the ad hoc
committee and of its recommendations and the MEC’s vote to take action. Dr.
Rutherford cannot voluntarily waive his right to a fair hearing and then complain in
court that he never had one. HUGH complied substantially with its own Bylaws
and more than sufficiently to meet the statutory requirements of the HCQIA. The
court must presume, since there is no evidence to the contrary, that the hearing
offered by HUGH would have complied with all statutory requirements under the
HCQIA, irrespective of Dr. Rutherford’s baseless assertion that the hearing would
have been a “kangaroo court.” Dr. Rutherford was at all times aware of his right to
a fair hearing, and his unilateral decision to ignore that right does not qualify as
evidence of a failure on the part of HUGH to provide adequate notice and
opportunity for a fair hearing, much less a preponderance of evidence needed to
rebut the presumption that HUGH met the requirements under HCQIA for
adequate notice and hearing.
The fourth standard has typically been analyzed by courts as equivalent to
the first standard. Although the court below adds to this standard the requirement
that the adverse action be in proportion to the belief regarding the present danger
of the physician, no such requirement is present in the plain language, and few
courts have suggested such a requirement. Regardless, the information showing
that Dr. Rutherford had one of the highest patient fatality records in the hospital,
combined with a substantially higher complication rate only partially explained by
21
a period of a few months of HVAC problems is sufficient to found a reasonable belief
that revoking the physician’s right to perform surgeries was warranted.
STANDARD OF REVIEW
A district court must grant a motion for summary judgment if it finds the
“pleadings, depositions, 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. 56(c). Respondent HUGH bore the initial burden of specifying the basis for
the motion and identifying the portions of the record which demonstrated the
absence of a genuine issue of material fact as a movant in the trial court. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once defendant meets this burden, the
plaintiff then must produce specific evidence that there is a genuine issue of fact for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A fact is
“material” if it could affect the outcome of the suit under governing law. Id. At 247.
An issue is “genuine” if a reasonable jury could return a verdict for the nonmoving
party based on the evidence. Id. The court must view the existing evidence in the
light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). However, when opposing a motion for
summary judgment, a non-movant “may not rest upon mere allegations.” Kelly v.
United States, 924 F.2d 355, 357 (1st Cir. 1991). Further, “[t]he mere existence of a
scintilla of evidence in support of the plaintiff’s position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252. In reviewing a grant of summary judgment, the court
22
analyzes the case de novo from the evidence provided in the record. Williams v.
Mehra, 186 F.3d 685, 689 (6th Cir. 1999). The appellate court uses the same legal
standard as the district court to determine whether summary judgment is
appropriate. Id.
Under the § 1983 claim, plaintiff must demonstrate the existence of a
genuine issue of material fact as to each and every element and affirmative defense
to overcome summary judgment, whereas to overcome the presumption of HCQIA
immunity, plaintiff need only show that the hospital failed to follow any of the four
statutory standards required for immunity. However, with respect specifically to
HCQIA immunity, summary judgment has a unique standard; “Might a reasonable
jury, viewing the facts in the best light for [Dr. Rutherford], conclude that he has
shown, by a preponderance of the evidence, that the defendants’ actions are outside
the scope of § 11112(a)?” Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992);
Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 33, n.5 (1st Cir. 2002)
(“Since HCQIA immunity may only be overcome by a preponderance of the evidence,
the statutory presumption in favor of the health care entity shifts to the plaintiff
‘not only the burden of producing evidence but the burden of persuasion as well.’ ”)
(internal citations omitted).
23
ARGUMENTS AND AUTHORITIES
I. PLAINTIFF’S HAS NOT ESTABLISEHD ANY OF THE
NECESSARY ELEMENTS FOR A§1983 RETALIATION CLAIM IN
VIOLATION OF THE FIRST AMENDMENT
A. Dr. Rutherford’s Blog Post Was Not Speech On A Matter of Public
Concern
i. The Content, Context, and Form of Dr. Rutherford’s Blog Post, as
Revealed by the Whole Record, All Point to Speech of a Private Matter
Courts have placed considerable weight on the apparent underlying purpose
of a message to determine if it is protected speech. “The heart of the matter is
whether the employees speech was ‘calculated to redress personal grievances or
whether it had a broader public purpose’.” Ruotolo v. City of New York, 514 F.3d
184, 189 (2d Cir. 2008) (citing Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir.1999)). In
Ruotolo, the court held that the plaintiff’s lawsuit sought to redress his own
personal grievances, and therefore did not seek to advance a public purpose,
removing the speech from protection as speech on a matter of public concern.
Likewise, in Connick, the court noted that:
Myers did not seek to inform the public that the District Attorney’s Office was
not discharging its governmental responsibilities in the investigation and
prosecution of criminal cases. Nor did Myers seek to bring to light actual or
potential wrongdoing or breach of public trust on the part of Connick and
others…While discipline and morale in the workplace are related to an agency’s
efficient performance of its duties, the focus of Myers’ questions is not to evaluate
24
the performance of the office but rather to gather ammunition for another round of
controversy with her superiors.
Connick v. Myers, 461 U.S. 138, 148 (1983).
“[R]etaliation against the airing of generally personal grievances is not brought
within the protection of the First Amendment by ‘the mere fact that one or two of [a
public employee’s] comments could be construed broadly to implicate matters of
public concern.’” Ruotolo v. City of New York, 514 F.3d 184, 190 (2d Cir. 2008)
(citing Ezekwo v. New York City Health & Hosp. Corp., 940 F.2d 775, 781 (2d Cir.
1991)). Similarly, Dr. Rutherford’s speech was an airing of his personal grievances
and distaste for the vaccination program and grant and his personal guilt over his
grandson’s diagnosis. However, Dr. Rutherford did not bring to light any actual or
potential wrongdoing by HUGH, rather his blog appallingly insinuated that HUGH
provided vaccinations not to help protect children from disease, but to acquire and
maintain HDRI grant money and to obtain fringe perks like photo ops with political
celebrities. Aside from his blanket assertion of HUGH getting paid for each kid
they “jab,” Dr. Rutherford did not bring any new or truthful information to light.
The HDRI grant is not only public knowledge, it is something that HUGH is proud
of receiving for the work it does helping to vaccinate Hanover’s children from
communicable diseases. The baseless accusations of ulterior motives, however, do
not bring any valuable information to light because the assertions are neither true,
nor did they offer any specific insight or legitimate evidence that could tend to show
this assertion was true. Moreover, there is a possibility that readers of the post will
assume that Dr. Rutherford does have additional unstated evidence of these claims
25
by virtue of his position as a physician within the hospital and are therefore more
likely to believe these assertions coming from a physician at HUGH than if they
came from an average citizen, despite the lack of objectively evidence based
analysis.
A question inherent in the analysis is whether the person asserting the speech
on a matter of public concern is whether the person is an employee of the
government. Dr. Ruthford is deemed a “quasi-state employee” as an independent
contractor, and this Court long ago ruled that there is no “difference of
constitutional magnitude” between independent contractors and government
employees for § 1983 analysis. Bd. Of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 678-
79 (1996). However, this Court has not specifically analyzed independent
contractors in terms of physicians with hospital privileges. The court noted in
Umbehr that as a contractor, the plaintiff was unlikely to have his message
confused with that of the government, but in the case of a physician with privileges,
the ordinary patient and citizen is unlikely to know whether the physician he or she
sees is an employee or an independent contractor if they even know the distinction
exists. Id. at 677. Anthony Rogers discussed a few scattered courts that have
analyzed the distinction and found physicians not to be employees for Civil Rights
claim purposes. Anthony Rodgers, Comment, Procedural Protections During
Medical Peer Review: A Reinterpretation of the Health Care Quality Improvement
Act of 1986, 111 Penn St. L. Rev. 1047, 1053 n.42 (2007). See Alexander v. Rush N.
Shore Med. Ctr., 101 F.3d 487, 488 (7th Cir. 1996) (holding that a physician with
holding staff privileges is not considered an employee for purposes of standing
26
under Title VII for unlawful discrimination); Bender v. Suburban Hosp., 998 F.
Supp. 631, 637 (D. Md. 1998) (holding physicians are not employees of hospitals
granting privilege).
ii. Dr. Rutherford’s Blog Post Was Written as a Physician Employee, Not as
a Private Citizen
Public employees, like physicians, “often occupy trusted positions in society.
When they speak out, they can express views that contravene governmental policies
or impair the proper performance of governmental functions. Garcetti v. Ceballos,
547 U.S. 410, 419 (2006). “[W]hen the government appropriates public funds to
promote a particular policy of its own it is entitled to say what it wishes.”
Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833 (1995).
iii. To The Extent That Dr. Rutherford’s Speech Was On A Matter Of Public
Concern, It Would Correspondingly Interfere With The Regular
Operations of the Hospital
Dr. Rutherford’s argument that the speech was on a matter of public concern
correspondingly implicates its ability to disrupt the efficient delivery of public
services by the hospital. If the speech was on a matter of public concern, then there
must have been some underlying purpose to get the word out to the general public,
and to change hearts and minds in the process. To the extent it was not meant to
actually convince parents not to vaccinate their children, the post loses its public
concern component and becomes an unprotected private expression.
27
B. Plaintiff has not Shown Any Evidence Beyond A Temporal Link to
Establish a Causal Connection
In order to establish a claim under § 1983, a plaintiff must also that but for
the protected expression, the employer would not have taken the alleged retaliatory
action.” Huang v. Board of Governors of Univ. of N.C., 902 F.2d 1134, 1140 (4th
Cir. 1990). In examining the legitimacy of temporal proximity evidence, the
Braswell court held that the immediate reaction of the hospital in withdrawing
support for a prospective new surgeon suggested by plaintiff after he wrote a letter
criticizing the hospital for hiring too many surgeons supported the plaintiff’s burden
for causation. Braswell v. Haywood Reg’l Med. Ctr., 352 F. Supp. 2d 639, 648
(W.D.N.C. 2005). However, in regards to the same initial letter, even though the
plaintiff had established that some physicians were still holding a grudge about the
letter, the year in separation between the letter and the peer review resulting in
several adverse actions was no longer supported by a temporal claim. Id. “As to the
element of causation, the temporal proximity … supports the inference that
[defendants] instigated a challenge to [plaintiff’s] … protected [expression].” Saleh
v. Upadhyay, 11 Fed. Appx. 241, 256 (4th Cir. 2001). It is unclear whether the
temporal assertion would work on this case. Dr. Polishov did not initiate the
investigation until almost a month after discovering the June 12 post through Dr.
Glower. It seems more likely that Dr. Polishov initiated an informal investigation
to determine if there was any medical care related issues to look into than that the
investigation was in response solely, or even substantially as a result of the post.
This is inferred logically by the fact that the longer the post was up before any
28
action by the committee, the longer the post could gain traction and damage the
hospital and hurt its mission. If the post was a substantial or motivating factor in
the ultimate decision of the MEC, it logically would have been initiated earlier to
mitigate the damage. Instead, Dr. Polishov waited until July 1 to announce the
plan to form the committee, and until July 8 to officially form it. Aside from this
temporal link and the initial concerns of Dr. Glower expressed to Dr. Polishov from
June 11-13, there is no further evidence that the post was ever considered again in
determining how to treat Dr. Rutherford.
C. HUGH’s Interests in Promoting Good Public Health Through
Widespread Vaccinations and Maintaining the HDRI Grant
Funding Outweigh Dr. Rutherford’s Interests in Expressing his
Personal and Unsubstantiated Belief in a Link Between Autism
and Vaccinations
In striking the balance between employee and employer interests, “the
government’s interest in achieving its goals as effectively and efficiently as possible
is elevated from a relatively subordinate interest when it acts as sovereign to a
significant one when it acts as employer.” Waters v. Churchill, 511 U.S. 661, 675
(1994) (plurality opinion). In weighing the government’s arguments, the courts
“consistently give greater deference to government predictions of harm used to
justify restriction of employee speech than to predictions of harm used to justify
restrictions on the speech of the public at large. Id. at 673; accord, United States v.
Treasury Employees, 513 U.S. 454, 475 (1995).
29
i. Dr. Rutherford’s Speech Was Incorrect, Dangerous to Public Health, and
Undeserving of any Weight to Balance Against HUGH’s Substantial
Interest in Promoting Good Public Health
The link between autism and vaccines are thoroughly debunked and
without any merit to the public debate. Honda, Hideo, Rutter, Michael, and
Shimizu, Yasuo, No Effect of MMR Withdrawal on the Incidence of Autism: A
Total Population Study, J. Child Psychol. & Psychiatry, 46:6 572-579, (2005).
The link between autism and vaccines is little more than a misinformed
conspiracy theory, and as an institution of research and teaching, Dr.
Rutherford’s association as a conspiracy theorist of bad science may detract
students and lose HUGH legitimacy in its future studies. Additionally, while
parents obviously endanger their children, sporadic cases of foregoing
vaccinations does exponential harm to herd immunity. Paul Fine, Herd
Immunity: History, Theory, Practice, Epidemiology Rev., Vol. 15 No. 2, 265, 268-
270 (Jan. 1993)
http://epirev.oxfordjournals.org/content/15/2/265.full.pdf+html?ijkey=983850598f
a4228ee65eded1b2f63fda04749046&keytype2=tf_ipsecsha. It is nearly
impossible to calculate the cost or total danger in allowing nearly eradicated
diseases to come back to our child populations. Priya Shetty,Experts Concerned
About Vaccination Backlash, The Lancet, Vol. 375, Issue. 9719, 970, 970-71 (20
Mar. 2010) http://www.thelancet.com/journals/lancet/article/PIIS0140-
6736%2810%2960421-7/fulltext (quoting Paul Offit, co-inventor of the rotavirus
vaccine “In 2008, we had a measles epidemic in the USA that was bigger than
30
anything we had had in a decade, and that epidemic owed directly to the fact
that some children had not been vaccinated. The parents were more afraid of the
vaccine than they were of the disease, as a direct result of misinformation by
anti-vaccine websites”). Additionally, “even if only ten out of one hundred people
refuse vaccines but most of them live in the same neighborhood, the likelihood of
outbreaks increases due to local breakdown of herd immunity.” Id. (quoting
Saad Omer, Assistant Professor of Global Health, Emory University, Atlanta,
GA). Accordingly, a breakdown of people in the Hanover geographic region
adhering to Dr. Rutherford’s baseless warnings have an increasingly dangerous
impact on the local population and the efforts to eradicate disease. The Center
for Disease Control has estimated that 1 in 88 children has been identified with
an autism spectrum disorder. New Data on Autism Spectrum Disorders, Center
for Disease Control and Prevention, (updated Mar. 29, 2012)
http://www.cdc.gov/features/countingautism/. Compare Donald G McNeil, Sharp
Drop Seen in Deaths From Ills Fought by Vaccine, NYT, Health, (Nov. 14, 2007)
http://www.nytimes.com/2007/11/14/health/14vaccine.html?_r=0 (tracing a study
from 1900 showing how the introduction of vaccines have cut down the rates of
death and hospitalization for nine diseases by more than 90 percent, and in the
case of smallpox, diphtheria, and polio, by 100 percent. Even if the link between
autism and vaccines were legitimate, in fact even if every single case of autism
was caused solely by vaccines, which they most certainly are not, the trade-off
between the lives saved to the incidence rate of autism is too high too to balance
against the government’s interest in saving lives.
31
D. HUGH Has Demonstrated A Preponderance of Evidence that It
Would Have Decided to Revoke Dr. Rutherford’s Privileges even
Absent the Protected Speech
HUGH provided a preponderance of evidence relating to Dr. Rutherford’s
medical record that would satisfy the defendant’s burden in demonstrating that.
“An employee ought not be able, by engaging in such conduct, to prevent his
employer from assessing his performance record and reaching a decision not to
rehire on the basis of that record, simply because the protected conduct makes the
employer more certain of the correctness of its decision.” Mt. Healthy, 429, U.S.
273, 285-286 (1977). Dr. Rutherford should likewise not be allowed to hide behind
his post to mask the substandard patient care record he maintains. It is wholly
unimportant that Dr. Rutherford may have some qualities that are above average,
or that he invented a life-saving product. HUGH’s legitimate concerns for quality
health care and competence among professionals may necessitate a better
communicator who takes fewer risks. As a teaching and research hospital, it is
important not just for HUGH to have superstars, but also engaging mentors who
can teach the next generation of physicians.
II. HUGH IS IMMUNE FROM DAMAGES FOR PLAINTIFF’S
REMAINING CAUSES OF ACITON UNDER THE HCQIA
Defendants are entitled to damages immunity under HCQIA if the peer
review action was 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
32
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
requirements of paragraph (3). 42 U.S.C. §§ 11111(a) & 11112(a).
A hospital’s peer review action is presumed under the law to have satisfied
the four HCQIA standards unless this presumption is rebutted by a preponderance
of the evidence. 42 U.S.C. § 11112(a); Moore v. Williamsburg Reg. Hosp., 560 F. 3d
166, 180 (4th Cir. 2009); Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25,
33, n.5 (1st Cir. 2002) (“Since HCQIA immunity may only be overcome by a
preponderance of the evidence, the statutory presumption in favor of the health care
entity shifts to the plaintiff ‘not only the burden of producing evidence but the
burden of persuasion as well.’”) (internal citations omitted).
A. Bad Faith is Irrelevant to the Question of Whether There was an
Objectively Reasonable Basis for the Peer Review Action, Which
is What Congress Required Under the HCQIA and What the
Overwhelming Majority of Courts Have Applied
The overwhelming majority of Courts of Appeals, in evaluating summary
judgment orders granted on the basis of immunity have applied an objective
standard in assessing compliance with § 11112(a). Mathews v. Lancaster General
Hosp., 87 F.3d 624, 635 (3rd Cir. 1996). Adopting “objective reasonable belief
standards, the HCQIA advances the Congressional purpose of permitting a
determination of immunity without extensive inquiry into the state of mind of peer
reviewers. Singh, 308 F.3d at 32; Poliner v. Texas Health Sys., 537 F.3d 368, 377
33
(5th Cir. 2008) (“We agree with our sister circuits that the HCQIA’s reasonableness
requirements were intended to create an objective standard of performance, rather
than a subjective good faith standard.”); see also Meyers v. Columbia/HCA
Healthcare Corp., 341 F.3d 461, 468 (6th Cir. 2003). The test under HCQIA is
whether an objectively reasonable basis existed for the peer review action in
question. Freilich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 212 (4th Cir.
2002); Imperial v. Suburban Hosp. Ass’n, Inc., 37 F.3d 1026, 1030 (4th Cir. 1994).
The sufficiency of the basis for the peer reviewers' action – not alleged personal
bias, malice, or bad faith on the part of the peer reviewers – is relevant under
HCQIA. Id.; see also Sugarbaker v. SSM Health Care, 190 F.3d 905, 914 (8th Cir.
1999) (“[T]he subjective bias or bad faith of the peer reviewers is irrelevant.” );
Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992) (alleged personal animosity
of peer reviewers is “irrelevant to the reasonableness standards of § 11112(a) ...”
because “[t]he test is an objective one, so bad faith is immaterial.”); Lee v. Trinity
Lutheran Hosp., 408 F.3d 1064, 1072 (8th Cir. 2005)(allegation that peer review
action was “crusade” against physician irrelevant to HCQIA analysis). Bryan v.
James E. Holmes Regional Med. Ctr., 33 F.3d 1318, 1335 (11th Cir. 1994)
(Plaintiff's “assertions of hostility do not support his position [that the hospital is
not entitled to the Act's protections] because they are irrelevant to the
reasonableness standards of § 11112(a). The test is an objective one, so bad faith is
immaterial. The real issue is the sufficiency of the basis for the [Hospital's]
actions.”), cert. denied, 514 U.S. 1019, 115 S.Ct. 1363, 131 L.Ed.2d 220 (1995).
34
In sum, The First, Third, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, and
even the Tenth Circuit, one of the few circuits to find that a plaintiff rebutted the
presumption of immunity, explicitly follow an objective standard. Brown v.
Presbyterian Healthcare Services, 101 F.3d 1324, 1334 (10th Cir. 1996) (finding
that when the record revealed improper reporting and anti-Semitic comments
against physician by a person preparing the report, who knew the basis for the
disciplinary action before falsifying the report, presumption of immunity was
rebutted). Only the Second and Seventh Circuits have not yet ruled on whether the
HCQIA requires an objective or subjective test. Of the two, the Seventh Circuit
would appear empathetic to an objective standard that reduces costly litigation
based on its decision ordering a trial court to examine whether defendants were
eligible for attorney’s fees under 42 U.S.C. § 11113. See Addis v. Holy Cross Health
System Corp., 88 F. 3d 482, 483 (7th Cir 1996) (“We emphasize at the outset the
district court’s Herculean labors in its handling of this multifaceted dispute, which
gives meaningful expression to the concerns that animated Congress in its creation
and approval of the Health Care Act.”). The Twelfth Circuit analysis thus stands
alone in calling for a subjective standard in reviewing compliance with statutory
requirements under the HCQIA. A subjective standard, if adopted, would frustrate
Congress’ clear intent of promoting “effective professional peer review by providing
“incentive and protection for physician engaging in effective professional peer
review” by removing the “threat of private money damage liability, which
“unreasonably discourages” participation. 42 U.S.C. §§ 11101(2-4)
35
Accordingly, even if Dr. Rutherford were able to show by a preponderance of
evidence, that HUGH acted with bad faith, or that any peer reviewers acted with
personal animosity or with a vendetta, which he cannot, such showing would still
have no bearing on the appropriate HCQIA analysis.
B. Under an Objective Standard, the Court Need Only Examine
Whether a Reasonable Belief Existed Based on the Objective Facts
In Evidence at the Time the Adverse Action was Taken That The
Statutory Standards For Immunity Were Met Under the HCQIA
i. The Committee’s Investigation Uncovered Sufficient Evidence to
Establish a Reasonable Belief that Revoking Dr. Rutherford’s Privileges
Would Further Quality Health Care
To rebut the first standard for immunity from damages of a peer review
panel on a non-Civil Rights issue, a physician must establish, by a preponderance of
evidence, that the professional review actions taken by the peer review panel were
not taken in to prevent incompetent behavior or in furtherance of quality health
care. 42 U.S.C. §§ 11112(a)(1), 11101(1)-(2). It is insufficient for the physician to
allege a conspiracy of alternative possible reasons for the action if the physician
cannot rebut the peer review panel’s evidence that its actions were taken in the
furtherance of quality health care. Smith v. Ricks, 31 F.3d 1478, 1486 (9th Cir.
1994) (cardiologist who alleged conspiracy of “in-group of doctors” to get him out but
never challenged the substance of the findings is insufficient to rebut the
presumption that the reviewers “would reasonably have concluded that their
actions would restrict incompetent behavior or protect patients”). More substantial
36
evidence of ulterior motives are also irrelevant to the objective question on
furtherance of quality health care. In Mathews v. Lancaster General Hosp., the
physician presented evidence of direct economic competition on the part of some of
the panel members, yet did not present sufficient evidence to show that the
ultimate action was based on anything other than furtherance of quality health
care. 87 F.3d 624, 634-35 (3rd Cir. 1996) (“assertions of bad faith and
anticompetitive motive are irrelevant to the question of whether a decision was
taken in a reasonable belief that it would further quality health care”). Even if the
panel ultimately reaches the wrong conclusion, this is insufficient to rebut the
presumption of a reasonable belief. In Egan v. Athol Memorial Hosp., the court
held that even if the physician could present evidence of medical experts to prove
that the peer review members reached incorrect conclusions on specific medical
issues, this would be insufficient to rebut the presumption that the panel had
reasonable belief that the decisions were in furtherance of quality health care, even
if in actuality they were not. 971 F. Supp. 37, 43 (D. Mass. 1997). A court need only
find “some minimal basis related to quality health care, whether legitimate or not,”
for immunity to stand. Meyer, v. Sunrise Hosp., 22 P.3d 1142, 1153 (Nev. 2001).
Like the plaintiff in Smith, Dr. Rutherford does not refute the actual findings
of the board other than to qualify the damage as less damaging than the numbers
appear in isolation. His allegations of a conspiracy against him start off weak with
only minimal evidence that Dr. Glower had a predisposition to voting for an adverse
action. While concededly, Dr. Rutherford has presented sufficient circumstantial
evidence to call into question the motivations for initiating the investigation into his
37
record, he has not produced any evidence that Dr. Glower ultimately acted for any
reason other than Dr. Glower’s own reasonable belief that he was preventing
incompetence or furthering quality health care. Dr. Rutherford’s allegations fall off
into complete conjecture and speculation as he insinuates bias on the part of the
other panelists. The entirety of Dr. Rutherford’s evidence of Dr. Polishov’s
perceived biases are that Dr. Glower informed her that Dr. Rutherford commented
negatively on a photograph of her and the Governor of Hanover, and that she
initiated the proceedings against him, even though as the Director of the MEC, she
was one of the few persons authorized and charged with the responsibility to do so,
and the person most logically required to do so after Dr. Glower reported his
concerns to her. The evidence becomes even thinner as Dr. Rutherford sullies the
name of Dr. Seamus, accusing him of acting not independently, but as Dr. Polishov’s
agent, an assertion he based purely on Dr. Seamus’ relationship with Dr. Polishov.
Although not individually named, Dr. Rutherford suggested that Dr. Ling, the
Director of Quality Enhancement Initiatives and Chief of Surgery would potentially
disregard good reason and quality patient care to “go along to get along” with
whatever decision the ad hoc committee would make. Lastly, Dr. Rutherford names
Mary Kreutzer without any allegations of bias or inaccuracy in her reporting simply
because she collected interview information from nursing staff and reported it to the
ad hoc committee as part of her expected duties as the Director of Nursing. In
naming Kreutzer based on her contributions to the committee as relaying what he
characterizes as hearsay testimony, Dr. Rutherford demonstrates why Congress
intended to spare peer review panels the burden and frustration of meritless claims
38
and defenseless suits. There is simply “no prohibition against the use of hearsay in
the peer review process.” Imperial v. Suburban Hosp. Ass’n, Inc., 862 F. Supp.
1390, 1397 (D. Ma. 1993).
ii. HUGH Made Its Decisions After a Reasonable Effort to Obtain the Facts
of the Matter
A physician is entitled to a reasonable investigation under the HCQIA, not a
perfect investigation. Id. Additionally, “nothing in the [HCQIA] requires that a
physician be permitted to participate in the review of his care.” Id. In Smith, the
physician claimed that the hospital’s investigation was flawed because he was not
permitted to discover or introduce evidence regarding the conduct of other doctors,
essentially to prove that he was not the worst doctor at the hospital. Smith, 31 F.3d
at 1486. The court responded “[n]othing in the statute, legislative history, or case
law suggests the competency of other doctors is relevant in evaluating whether [the
hospital] conducted a reasonable investigation into [the physician’s] conduct. Id.
Dr. Rutherford’s strongest argument in favor of incomplete information by
the ad hoc committee is that they made the decision without sufficient awareness
that the HVAC leakage issue raised all postoperative complication rates, the degree
of difficulty involved with Doda Stent patients, and that other physicians were not
compared for purposes of determining rudeness. However, court precedent and the
plain language of the HCQIA would not require that Dr. Rutherford be consulted to
explain away every negative aspect of his medical record. Nor is he entitled to show
that he is not the rudest physician at HUGH. Lastly, even if what Dr. Rutherford
asserts regarding the risk involved with Doda Stent patients is ultimately accurate,
39
this does not make the reliance on facts showing objectively high morbidity and
complication rates unreasonable.
The committee examined six years’ worth of records, and did not pick and
pull only a few cases to make the worst possible case. For example, had the
committee only analyzed the four months while the HVAC systems were in
disrepair, rather than the entire seventy-two month period containing the
problematic timeframe, this would be another matter. Additionally, it would be
admittedly problematic if HUGH compared Dr. Rutherford’s cardiac surgery
morbidity record with that of a plastic surgeon or orthopedic surgeon, but despite
Dr. Rutherford’s allegation that Doda Stent patients are some of the riskiest
patients to operate on, he has provided no specific evidence that these patients are
riskier than quadruple bypass or heart transplant patients, or any other patients
with serious heart conditions that the other 14 cardiac surgeons at HUGH would
have dealt with on a regular basis. A thin and misleading record certainly tends to
refute the presumption of a reasonable effort to obtain the facts of the matter, but
the period analyzed by HUGH was far from thin, and despite Dr. Rutherford’s self-
serving excuses for substandard results, in Dr. Rutherford’s own words his “record
speaks for itself. It’s numbers, not verbiage.”
iii. HUGH Afforded Dr. Rutherford with Adequate Notice and Opportunity
for Fair Hearing Under the Circumstances and Under Any Circumstances
a. HUGH Satisfied the Safe Harbor Provisions for Adequate Notice and Hearing
In compliance with the standards set forth by the HCQIA, HUGH not only
gave adequate notice and opportunity for hearing that were fair under the
40
circumstances, they also satisfied the safe harbor provisions which grant immunity
under any circumstances. Under the safe harbor provisions of 42 U.S.C. § 11112(b):
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).
The July 1 and July 31 letters satisfied all elements of the safe harbor
provisions under 42 U.S.C. § 11112(b)(1) by informing Dr. Rutherford that (A)(i) his
privileges were to be revoked along with the (A)(ii) reasons related to his health
care record and temperament and failure to abide by HUGH standards for quality
care. Dr. Rutherford was notified both times of (B)(i) his right to request a hearing
for (B)(ii) up to thirty days from the date of the action, and a (C) summary of his
additional rights in the hearing. Even if the court believes that his post was a
41
reason for the proposed action, (A)(ii) only requires notification of “reasons for the
proposed action”, not necessarily all reasons, as a complete list may be cumbersome
and unnecessary. Regardless, the most important fact is that Dr. Rutherford was
put on notice regarding the serious consequences of the MEC’s proposed action and
cannot now claim, after voluntarily waiving his right to a fair trial, that he would
have sought one had the MEC stated that his post was a reason for the action.
Again, for the record, Dr. Rutherford’s post was not mentioned in the committee’s
oral report to the MEC or as a reason for his revocation of privileges in the July 31
letter. Accordingly, since the only mention of this being a reason for the action is
the speculative assertion of Dr. Rutherford, he must have been on notice of this
supposed reason… after all, he is the only person alleging it.
Because Dr. Rutherford voluntarily and affirmatively waived his right to a
fair trial by declining to attend what he termed a “kangaroo court”, he cannot now
argue that such a hearing would not have satisfied the statutory requirements
under the HCQIA. The HCQIA was meant to reduce the burden and cost of
effective professional review by allowing professionals to police themselves through
the peer review process. Dr. Rutherford’s unabashed disregard of the process
cannot possibly serve now to provide him a legal claim for not receiving what he
affirmatively waived.
42
b. Even if the Court Determines that HUGH Did Not Satisfy the Safe Harbor
Provisions, Dr. Rutherford Had Adequate Notice and Hearing Under the
Circumstances.
Dr. Rutherford’s only allegation as to lack of adequate notice is that his notice
did not mention his post, and that if it had, he would be more likely to hire an
attorney to fight the case. The evidence discussed above demonstrates that Dr.
Rutherford had no respect for the internal hearing process, and in any event, was
the only one to make the inference that the adverse action was due primarily if not
entirely due to his speech. Since there is no use of the word all, or the indefinite
article “the” prior to reasons for the proposed action, it is safe to say that there is no
such requirement inherent under the HCQIA. To the contrary, if a peer review
panel fails to discuss a reason for taking the adverse action, the physician has a
weaker record of evidence to rebut in asserting that the actions were unwarranted
under the fourth and first standards for immunity.
c. Dr. Rutherford’s Evidence of a Biased Panel are Irrelevant to Adequate
Notice and Hearing
In the most extreme jurisdictions, even evidence of panel members being in direct
competition with the physician being reviewed have been insufficient to rebut
presumption of immunity if the members were not hearing officers. Wayne v.
Genesis Med. Ctr., 140 F.3d 1145, 1149 (8th Cir. 2001). Typically, the courts
interpret only that the hearing officers not include physicians in “direct economic
competition” with the physician being reviewed. 11112(b)(3)(A)(ii); accord Smith v.
Ricks, 31 F.3d 1478, 1487 (9th Cir. 1994). Oddly, Dr. Rutherford complains that the
43
peer review panel did not consist of practicing cardiac surgeons, who would have
been the only members likely to have qualified as evidence sufficient to rebut the
presumption of immunity. Further, it must be noted that under the Bylaws
19.01(f), the investigation “shall not be considered a ‘hearing’ at any point in the
process.”
iv. HUGH Reasonably Believed that its actions were Warranted by the Facts
Known at the Time of the Decisions after Reasonable Efforts to Obtain the
Relevant Facts and After Meeting the Requirements of Adequate Notice
and Hearing
The fourth standard is generally analyzed as synonymous with the first or
first three standards. Singh, 308 F.3d at 38 n.13 (collapsing the fourth standard
into the first). Even if we ignored the overwhelming precedent and adopted the
Twelfth Circuit’s analysis that the fourth standard refers to the severity of the
action (meaning such a standard is therefore lacking in the first three standards)
the court offered no guidance or rationale for its mere conclusion that revocation of
privileges was too severe. If the decision was based entirely on the Dr. Rutherford’s
post as the Twelfth Circuit presumes, than perhaps asking Dr. Rutherford to
remove the post, or references to his employer would have been sufficient, but the
findings included a higher than average morbidity and complication rate in
comparison to the hospital at large and the other cardiac surgeons. In any event,
the action is not so far removed from the findings as to be completely unreasonable
or unfounded.
44
CONCLUSION
For the reasons discussed, Petitioner respectfully requests that the Court
reverse the Twelfth Circuit Court of Appeals and affirm the decision of the District
Court of Hanover, holding that Petitioner did not have his First Amendment rights
violated by HUGH, and that defendants satisfied the statutory requirements for
immunity from all monetary liability under the HCQIA.
1
APPENDIX A
U.S. Const. amend. § 1
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.”
1
APPENDIX B
42 U.S.C. § 1983 (2006)
Every person who, under color of any statute, ordinance, regulation, custom,
or usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable. For the purposes of this section, any
Act of Congress applicable exclusively to the District of Columbia shall be
considered to be a statute of the District of Columbia.
1
APPENDIX C
Health Care Quality Improvement Act 42 U.S.C. § 11101 et. seq.
42 U.S.C. §11101. Findings
The Congress finds the following:
(1) The increasing occurrence of medical malpractice and the need to improve the
quality of medical care have become nationwide problems that warrant greater
efforts than those that can be undertaken by any individual State.
(2) There is a national need to restrict the ability of incompetent physicians to move
from State to State without disclosure or discovery of the physician's previous
damaging or incompetent performance.
(3) This nationwide problem can be remedied through effective professional peer
review.
(4) The threat of private money damage liability under Federal laws, including
treble damage liability under Federal antitrust law, unreasonably discourages
physicians from participating in effective professional peer review.
(5) There is an overriding national need to provide incentive and protection for
physicians engaging in effective professional peer review.
2
42 U.S.C. § 11111. Professional Review
a) In general
(1) Limitation on damages for professional review actions
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. The
preceding sentence shall not apply to damages under any law of the United
States or any State relating to the civil rights of any person or persons,
including the Civil Rights Act of 1964, 42 U.S.C. 2000e, et seq. and the Civil
Rights Acts, 42 U.S.C. 1981, et seq. Nothing in this paragraph shall prevent
the United States or any Attorney General of a State from bringing an action,
including an action under section 15c of Title 15, where such an action is
otherwise authorized.
(2) Protection for those providing information to professional review bodies
3
Notwithstanding any other provision of law, no person (whether as a witness
or otherwise) providing information to a professional review body regarding
the competence or professional conduct of a physician shall be held, by reason
of having provided such information, to be liable in damages under any law of
the United States or of any State (or political subdivision thereof) unless such
information is false and the person providing it knew that such information
was false.
(b) Exception
If the Secretary has reason to believe that a health care entity has failed to report
information in accordance with section 11133(a) of this title, the Secretary shall
conduct an investigation. If, after providing notice of noncompliance, an opportunity
to correct the noncompliance, and an opportunity for a hearing, the Secretary
determines that a health care entity has failed substantially to report information
in accordance with section 11133(a) of this title, the Secretary shall publish the
name of the entity in the Federal Register. The protections of subsection (a)(1) of
this section shall not apply to an entity the name of which is published in the
Federal Register under the previous sentence with respect to professional review
actions of the entity commenced during the 3-year period beginning 30 days after
the date of publication of the name.
(c) Treatment under State laws
(1) Professional review actions taken on or after October 14, 1989
4
Except as provided in paragraph (2), subsection (a) of this section shall apply
to State laws in a State only for professional review actions commenced on or
after October 14, 1989.
(2) Exceptions
(A) State early opt-in
Subsection (a) of this section shall apply to State laws in a State for
actions commenced before October 14, 1989, if the State by legislation
elects such treatment.
(B) Effective date of election
An election under State law is not effective, for purposes of1, for
actions commenced before the effective date of the State law, which
may not be earlier than the date of the enactment of that law.
5
42 U.S.C. § 11112. Standards for Professional Review Actions
(a) In general
For purposes of the protection set forth in section 11111(a) of this title, a
professional review action must be 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).
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.
(b) Adequate notice and hearing
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--
6
(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
(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,
7
(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
8
(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.
(c) Adequate procedures in investigations or health emergencies
For purposes of section 11111(a) of this title, nothing in this section shall be
construed as--
(1) requiring the procedures referred to in subsection (a)(3) of this section--
(A) where there is no adverse professional review action taken, or
(B) in the case of a suspension or restriction of clinical privileges, for a
period of not longer than 14 days, during which an investigation is
being conducted to determine the need for a professional review action;
or
(2) precluding an immediate suspension or restriction of clinical privileges,
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.
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42 U.S.C. § 11113. Payment of Reasonable Attorney’s Fees and Costs in Defense of
Suit
In any suit brought against a defendant, to the extent that a defendant has met the
standards set forth under section 11112(a) of this title and the defendant
substantially prevails, the court shall, at the conclusion of the action, award to a
substantially prevailing party defending against any such claim the cost of the suit
attributable to such claim, including a reasonable attorney's fee, if the claim, or the
claimant's conduct during the litigation of the claim, was frivolous, unreasonable,
without foundation, or in bad faith. For the purposes of this section, a defendant
shall not be considered to have substantially prevailed when the plaintiff obtains an
award for damages or permanent injunctive or declaratory relief.
42 U.S.C. § 11115. Construction
(a) In general
Except as specifically provided in this subchapter, nothing in this subchapter shall
be construed as changing the liabilities or immunities under law or as preempting
or overriding any State law which provides incentives, immunities, or protection for
those engaged in a professional review action that is in addition to or greater than
that provided by this subchapter.
(b) Scope of clinical privileges
Nothing in this subchapter shall be construed as requiring health care entities to
provide clinical privileges to any or all classes or types of physicians or other
licensed health care practitioners.
(c) Treatment of nurses and other practitioners
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Nothing in this subchapter shall be construed as affecting, or modifying any
provision of Federal or State law, with respect to activities of professional review
bodies regarding nurses, other licensed health care practitioners, or other health
professionals who are not physicians.
(d) Treatment of patient malpractice claims
Nothing in this chapter shall be construed as affecting in any manner the rights
and remedies afforded patients under any provision of Federal or State law to seek
redress for any harm or injury suffered as a result of negligent treatment or care by
any physician, health care practitioner, or health care entity, or as limiting any
defenses or immunities available to any physician, health care practitioner, or
health care entity.
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42 U.S.C. § 11151. Definitions
In this chapter:
(1) The term “adversely affecting” includes reducing, restricting, suspending,
revoking, denying, or failing to renew clinical privileges or membership in a
health care entity.
(2) The term “Board of Medical Examiners” includes a body comparable to
such a Board (as determined by the State) with responsibility for the
licensing of physicians and also includes a subdivision of such a Board or
body.
(3) The term “clinical privileges” includes privileges, membership on the
medical staff, and the other circumstances pertaining to the furnishing of
medical care under which a physician or other licensed health care
practitioner is permitted to furnish such care by a health care entity.
(4)(A) The term “health care entity” means--
(i) a hospital that is licensed to provide health care services by the
State in which it is located,
(ii) an entity (including a health maintenance organization or group
medical practice) that provides health care services and that follows a
formal peer review process for the purpose of furthering quality health
care (as determined under regulations of the Secretary), and
(iii) subject to subparagraph (B), a professional society (or committee
thereof) of physicians or other licensed health care practitioners that
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follows a formal peer review process for the purpose of furthering
quality health care (as determined under regulations of the Secretary).
(B) The term “health care entity” does not include a professional society (or
committee thereof) if, within the previous 5 years, the society has been found
by the Federal Trade Commission or any court to have engaged in any anti-
competitive practice which had the effect of restricting the practice of licensed
health care practitioners.
(5) The term “hospital” means an entity described in paragraphs (1) and (7) of
section 1395x(e) of this title.
(6) The terms “licensed health care practitioner” and “practitioner” mean,
with respect to a State, an individual (other than a physician) who is licensed
or otherwise authorized by the State to provide health care services.
(7) The term “medical malpractice action or claim” means a written claim or
demand for payment based on a health care provider's furnishing (or failure
to furnish) health care services, and includes the filing of a cause of action,
based on the law of tort, brought in any court of any State or the United
States seeking monetary damages.
(8) The term “physician” means a doctor of medicine or osteopathy or a doctor
of dental surgery or medical dentistry legally authorized to practice medicine
and surgery or dentistry by a State (or any individual who, without authority
holds himself or herself out to be so authorized).
(9) The term “professional review action” means an action or recommendation
of a professional review body which is taken or made in the conduct of
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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. In this chapter, an action is
not considered to be based on the competence or professional conduct of a
physician if the action is primarily based on--
(A) the physician's association, or lack of association, with a
professional society or association,
(B) the physician's fees or the physician's advertising or engaging in
other competitive acts intended to solicit or retain business,
(C) the physician's participation in prepaid group health plans,
salaried employment, or any other manner of delivering health
services whether on a fee-for-service or other basis,
(D) a physician's association with, supervision of, delegation of
authority to, support for, training of, or participation in a private group
practice with, a member or members of a particular class of health care
practitioner or professional, or
(E) any other matter that does not relate to the competence or
professional conduct of a physician.
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(10) The term “professional review activity” means an activity of a health
care entity with respect to an individual physician--
(A) to determine whether the physician may have clinical privileges
with respect to, or membership in, the entity,
(B) to determine the scope or conditions of such privileges or
membership, or
(C) to change or modify such privileges or membership.
(11) The term “professional review body” means a health care entity and the
governing body or any committee of a health care entity which conducts
professional review activity, and includes any committee of the medical staff
of such an entity when assisting the governing body in a professional review
activity.
(12) The term “Secretary” means the Secretary of Health and Human
Services.
(13) The term “State” means the 50 States, the District of Columbia, Puerto
Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana
Islands.
(14) The term “State licensing board” means, with respect to a physician or
health care provider in a State, the agency of the State which is primarily
responsible for the licensing of the physician or provider to furnish health
care services.