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NO. 13-1076

The Supreme Court of the United States

________________________________________________________________

________________________________________________________________

HANOVER UNIVERSITY GENERAL HOSPITAL; ANTHONY B. GLOWER; MARY ELIZABETH

KREUTZER; SEAMUS O. MILK; ALICIA POLISHOV,

PETITIONERS

v.

DEFENDANT’S-PETITIONERS

THOMAS L. RUTHERFORD,

RESPONDENT

________________________________________________________________

________________________________________________________________

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TWELTH CIRCUIT

________________________________________________________________

BRIEF FOR PLAINTIFF-PETITIONER

________________________________________________________________

Team 1323

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QUESTIONS PRESENTED

I. Did the Circuit Court properly hold that Dr. Rutherford’s

social media post was speech protected by the First

Amendment by correctly applying the Pickering-Connick

balancing test to that speech?

II. Did the Circuit Court properly hold that Dr. Rutherford

presented sufficient evidence that a reasonable jury could

find that Health Care Quality Improvement Act immunity

would not apply to Petitioners’ review of Dr. Rutherford?

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TABLE OF CONTENTS

Questions Presented............................................2

Table of Contents..............................................3

Table of Authorities...........................................6

Opinions Below.................................................9

Statement of the Case.........................................10

Summary of the Argument.......................................14

Argument......................................................16

Conclusion....................................................49

I. THE CIRCUIT COURT PROPERLY HELD THAT DR. RUTHERFORD’S

SOCIAL MEDIA POST WAS SPEECH PROTECTED BY THE FIRST

AMENDMENT AND CORRECTLY APPLIED THE PICKERING-CONNICK

BALANCING TEST TO THAT SPEECH............................

A. Dr. Rutherford’s social media post was protected by the first amendment under the Pickering-Connick balancing

test...................................................

i. The social media post was within the scope of the Pickering-Connick balancing test because Dr.

Rutherford was a public employee speaking “as a

citizen on a matter of public concern.”............

ii. The social media post was protected by the first amendment because the public’s interest in protecting

it outweighs the state’s interest in regulating

it.................................................

B. The constitutionally protected social media post caused Petitioner to engage in the adverse action against Dr.

Rutherford.........................................

i. The constitutionally protected social media post was a “substantial and motivating factor” behind

Petitioners’ adverse action.......................

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ii. Petitioners would NOT have engaged in the adverse action “in the absence of” the constitutionally

protected social media post.......................

II. THIS COURT SHOULD AFFIRM THE COURT OF APPEALS DECISION IN

FAVOR OF DR. RUTHERFORD BECAUSE HE HAS SHOWN BY A

PREPONDERANCE OF THE EVIDENCE THAT HCQIA IMMUNITY SHOULD

NOT APPLY TO PETITIONERS.................................

A. This Court should consider evidence of decision-maker bias to overcome the presumption that Petitioners’

actions meet the standard for immunity under the Health

Care Quality Improvement

Act.....................................

i. The plain language of HCQIA reveals that decision-maker bias should be among the factors included in

deciding whether to rebut the presumption that HCQIA

standards have been met...........................

ii. HCQIA legislative history indicates that decision-maker bias was a primary concern of Congress, and the

statute should be interpreted to avoid giving

credence to biases. ...............................

iii. Case law precedent indicates that decision-maker bias is relevant to determining the issue of HCQIA

immunity..........................................

B. Dr. Rutherford has shown by a preponderance of the evidence that not all of the conditions for HCQIA

immunity were obtained in his case......................

i. A reasonable jury could conclude that Petitioners’ actions were not undertaken in furtherance of quality

health

care...............................................

ii. A reasonable jury could conclude that Petitioners’ actions were not taken after a reasonable effort to

obtain the facts of the

matter..............................

iii. A reasonable jury could conclude that that Petitioners’ actions were not undertaken after

adequate notice and hearing procedures as are

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afforded to the physician under the

circumstances.............................

iv. A reasonable jury could conclude that Petitioners’ actions were not undertaken in the reasonable belief

that the action was warranted by the facts after such

reasonable effort to obtain facts and after meeting

the requirements of (3).............................

C. The court should prioritize due process in the case at bar by refusing to recognize HCQIA immunity for

Petitioners, above the overly deferential HCQIA

precedent..............................................

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TABLE OF AUTHORITIES

United States Supreme Court Cases

Arizona v. Maricopa County Medical Society, 457 U.S. 332

(1982)........................................................48

Bd. Of Cnty. Comm’rs v. Umbehr, 518 U.S. 668 (1996)...........18

Connick v. Myers, 461 U.S. 138 (1983).....................16, 20

Garcetti v. Ceballos, 547 U.S. 410 (2006).....16, 16, 18, 18, 19

Givhan v. W. Line Consol. School. Dist., 439 U.S. 410

(1979)........................................................19

Matthews v. Eldridge, 424 U.S. 319 (1976).................26, 45

Mt. Healthy City Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274

(1977)........................................................16

Patrick v. Burgett, 486 U.S. 94 (1988)........................25

Pickering v. Bd. Of Ed., 391 U.S. 563 (1968)......20, 20, 21, 22

Rankin v. McPherson, 483 U.S. 378 (1987)..................16, 17

Waters v. Churchill, 511 U.S. 661 (1994)......................22

Other Federal Cases

Austin v. McNamara, 979 F.2d 728 (9th Cir.

1992).............................................28, 29, 30, 40

Brader v. Allegheny Gen. Hosp., 167 F.3d 832 (Ct. App. 3rd Cir.

1998).........................................................33

Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324 (10th

Cir. 1996)................................................29, 42

Bryan v. James E. Holmes Regional Med. Ctr., 33 F.3d 1318 (Ct.

App. 11th Cir. 1994)......................................27, 33

Ezekwo v. NYC Health & Hosp. Corp., 940 F.2d 775 (2d Cir.

1991).........................................................18

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Fara v. Esquire Magazine, Inc., 863 F. Supp. 2d 29 (D.D.C.

2012).........................................................19

Guilloty Perez v. Pierluisi, 339 F.3d 43 (1st Cir.

2003).............................................22, 24, 16, 17

Hancock v. Blue Cross-Blue Shield, 21 F.3d 373 (10t Cir.

1994).........................................................26

Hilton v. Children’s Hosp. San Diego, 107 Fed. Appx. 731 (9th

Cir. 2004)....................................................38

Laje v. R. E. Thomason General Hospital, 564 F.2d 1159 (5th Cir.

1978).........................................................39

Lewis v. City of Boston, 321 F.3d 207 (1st Cir. 2003).........22

Lie v St. Joseph Hosp., 964 F.2d 567 (6th Cir. 1992)..........26

Matthews v. Lancaster Gen. Hosp., 87 F.3d 624 (3rd Cir.

1996).........................................................26

Meyers v. Columbia/HCA Health Care Corp., 341 F.3d 461 (6th Cir.

2003).........................................................41

Poliner v. Tex. Health Sys., 537 F.3d 368 (5th Cir. 2008).....29

Ritten v. Lapeer Reg’l Med. Ctr., 611 F. Supp. 2d 696 (E.D.M.I.

2009).........................................................36

Selch v. Letts, 5 F.3d 1040 (7th Cir. 1993)...................17

Shulman v. Washington Hosp. Ctr., 222 F. Supp. 59 (D.D.C.

1963).........................................................45

Smith v. Ricks, 31 F.3d 1478 (9th Cir. 1994)..............27, 43

Sugarbaker v. SSM Health Care, 190 F.3d 905 (8th Cir.

1999).........................................................33

Wahi v. Charleston Area Med. Ctr., 453 F. Supp. 2d 942 (S.D.W.V.

2006).........................................................27

Woodbury v. McKinnon, 447 F.2d 839 (5th Cir. 1971)............39

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State Cases

Clark v. Columbia/HCA Information Services, Inc., 25 P.3d 215

(Nev. 2001)...............................................33, 34

Freilich v. Upper Chesapeake Health Sys., 33 A.3d 932 (Md.

2011).........................................................35

Greisman v. Newcomb Hosp., 192 A.2d 817 (N.J. 1963)...........45

Osuagwu v. Gila Reg'l Med. Ctr., 850 F. Supp. 2d 1216

(D.N.M.)......................................................37

Sadler v. Dimensions Healthcare Corp., 378 Md. 509 (Ct. App. Md.

2003).........................................................45

Statutory Provisions

42 U.S.C.S. §§ 11101 et seq...........25, 26, 27, 28, 29, 30, 35

Books and Periodicals

Diane Gupton, The Tenth Circuit Lowers the Evidentiary Burden to

Overcome Peer Review Immunity Under the Health Care Quality

Improvement Act-Brown v. Presbyterian Healthcare Services, 28

N.M.L. Rev. 625 (1998)........................................29

Elenor D. Kinney, Hospital Peer Review of Physicians: Does

Statutory Immunity Increase Risk of Unwarranted Professional

Injury? 13 Mich. St. J. Med. & Law 57 (2009)..................42

Susan L. Horner, The Health Care Quality Improvement Act of

1986: Its History, Provisions, Applications, and Implications,

16 Am. J. L. Med. 455, 468 (1990).............................31

William W. Parmley, Clinical Peer Review or Competitive Hatchet

Job, 36 J. Am. College of Cardiology 2347 (2000)..............46

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OPINIONS BELOW

On September 8, 2012, Dr. Rutherford filed suit against

Petitioners in the United States District Court for the District

of Hanover for (1) violating Dr. Rutherford’s First Amendment

right under 42 U.S.C. § 1983 and (2) common law claims of

financial loss, severe emotional distress, and reputational

harm. Record at 1, 6-7. The Petitioners moved for summary

judgment and the District Court granted the Petitioners’ motion.

Id. at 1. Dr. Rutherford appealed to the United States Court of

Appeals for the Twelfth Circuit, which reversed the District

Court’s ruling on June 3, 2013. Id. at 15. The Petitioners then

issued a petition for writ of certiorari to the Supreme Court of

the United States. The Supreme Court granted Petitioner’s

request for review. Id. at 27.

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STATEMENT OF THE CASE

Dr. Thomas L. Rutherford is a cardiac surgeon and the co-

inventor of Doda Stent. Record at 1. On June 11, 2012, Dr.

Rutherford posted approximately 500 words on his ConnectSpace

page expressing concerns about the link between as well as the

methods Hanover University General Hospital (HUGH) employs in

order to obtain money from the Hanover Disease Institute (HDRI).

Id. at 1-2. HDRI administers the 99 Percent grant, an initiative

aimed at increasing vaccination rates. Id. at 1-2. HUGH, Dr.

Rutherford’s employer, is one of three hospitals in the state

that receive HDRI funds Id. at 2

That afternoon, Dr. Anthony B. Glower, chair of pediatrics

and the chief investigator of HUGH’s 99 Percent grant, forwarded

the post to Dr. Alicia Polishov, chair of HUGH’s Medical

Executive Committee (MEC). Id. at 3. Dr. Glower’s emails

indicated a suspicion that Dr. Rutherford’s comments were a

personal vendetta against Dr. Glower for his success with the

HDRI grant and suspicions that Dr. Rutherford would be more

disruptive about vaccines. Id.

Dr. Polishov initiated a “request for corrective action” to

assess whether Dr. Rutherford’s “professional conduct [was]

detrimental to patient safety or to the delivery of quality

patient care, disruptive to Hospital operations, contrary to the

bylaws, or . . . applicable professional standards.” Id.;

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Medical Staff Bylaws § 19.01(a). She notified him via certified

mail on July 1, 2012 and appointed an ad hoc review committee

for this purpose. Id. at 4.

The ad hoc committee consisted of Seamus O. Milk, a retired

cardiac surgeon with courtesy privileges at HUGH who continues

to conduct fundraisers, Dr. Ronald Ling, a general surgeon who

chairs the HUGH Surgery department and serves as Director of

Quality Enhancement Initiatives, and Dr. Glower. Id. Ms. Mary

Elizabeth Kreutzer served ex officio to provide information from

the nursing staff. Id.

Dr. Polishov’s letter informed Dr. Rutherford that the ad

hoc committee would make a recommendation to the HUGH Board to

restrict or revoke Dr. Rutherford’s membership or privileges.

Id. It informed Dr. Rutherford of his right to counsel, a “fair

hearing” if the ad hoc committee recommended Disciplinary

Actions and the Medical Executive Committee adopted those

recommendations or took action of its own. Id. It also told him

that the ad hoc committee would consider information about Dr.

Rutherford’s patients’ post-surgical infection, and

complications noted in patient records like adverse drug

reactions and improper drug utilizations. Id. The committee

would also look at autopsy findings, sentinel events,

malpractice claims, and patient complaints. Id. Finally, the

letter also noted that Dr. Rutherford’s “temperament” and

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“compliance with Hospital staff rules” would also be considered,

as the Hospital considered these issues relevant to patient care

as well. Id.; see also Medical Staff Bylaws § 19.01(a). Dr.

Polishov’s letter did not mention ConnectSpace. Id.

The ad hoc committee limited its consideration to the last

six years. Id. Dr. Glower and Ms. Kreutzer conducted interviews

with a few HUGH staff members and reported their findings orally

to the full committee. Id. at 5. The committee’s operation was

informal, so there was no official chair, no secretary, no

observance of the Robert’s Rules of Order, and no tape recording

of the deliberations. Dr. Ling took notes on an iPad. Id.

Norbert Flax, HUGH CEO, wrote to Dr. Rutherford informing

him that the MEC had voted to revoke Dr. Rutherford’s privileges

and terminate his appointment to the Active Staff. Id. The

stated reasons for revocation were “unacceptably high rates of

morbidity and post-operative complications” and “failure to meet

the HUGH standard of care” and “conduct that impedes quality

patient care.” Id. The letter also appraised Dr. Rutherford of

his right to request a “fair hearing” to address the MEC’s

determination. Id. Dr. Rutherford replied in writing that he did

not want a hearing but did object to the Committee’s finding by

pointing out that his patients are among the sickest who come

for surgery, and noted that his spike in infection rates

corresponded to HUGH’s HVAC system malfunction. Id. Dr.

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Rutherford declined to participate in a hearing because of the

biased nature of the panel. Id. 5-6.

Dr. Rutherford retained counsel and initiated an appeal to

the HUGH Board of Trustees and a civil action in the District

Court on August 7, 2012. Id. at 6. The appeal to the Board was

met with success in a letter dated August 24, 2012. Id. Dr. Hugo

Borelli indicated that the Board of Trustees had reversed the

revocation of his privileges, though no reason was indicated.

Id. The civil action contends that Dr. Rutherford’s revocation

of privileges abridged his First Amendment right to free speech

under color of state law, and common law complaints allege

breach of contract, intentional infliction of emotional

distress, and defamation. Id.

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SUMMARY OF THE ARGUMENT

This court should affirm the Circuit Court ruling in favor

of Dr. Rutherford because Dr. Rutherford’s social media post was

protected by the First Amendment and was the cause for

Petitioners’ adverse action. Dr. Rutherford’s social media post

was protected by the First Amendment because Dr. Rutherford was

a public employee speaking as a citizen on a matter of public

concern. Additionally, the public’s interest in protecting Dr.

Rutherford’s social media post outweighed the State’s interest

in regulating it. Dr. Rutherford’s social media post was the

cause of Petitioner’s adverse action. The constitutionally

protected media post was a substantial and motivating factor

behind Petitioners’ adverse action. Further, Petitioners would

not have engaged in the adverse action in the absence of Dr.

Rutherford’s constitutionally protected social media post.

This court should affirm the Court of Appeals ruling in

favor of Dr. Rutherford because, by a preponderance of the

evidence, Dr. Rutherford has demonstrated that the actions of

Petitioners were not protected by HCQIA immunity. HCQIA protects

only those professional review actions that conform to its

requirements. In evaluating these requirements, this court is

permitted to evaluate decision-maker bias because of the express

language of HCQIA, the legislative intent behind it, and case

law that has supported the relevance of decision-maker bias to

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determining HCQIA immunity. Petitioners’ professional review

action against Dr. Rutherford was insufficient to obtain HCQIA

immunity because a reasonable jury could conclude that the

action was not taken in the reasonable belief that the action

was in furtherance of quality health care, it was not made after

a reasonable effort to obtain the facts of the matter, it was

not made after adequate notice and hearing procedures under the

circumstances, and the action was not warranted by the facts

after efforts to obtain the facts and provide notice and

hearing. Additional policy arguments support consideration of

decision-maker bias in HCQIA immunity determinations, and a

finding in favor of Dr. Rutherford, including fairness,

institutional competence, and the need to protect physicians

from the effect of inappropriate professional review actions.

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ARGUMENT

I. THE CIRCUIT COURT PROPERLY HELD THAT DR. RUTHERFORD’S

SOCIAL MEDIA POST WAS SPEECH PROTECTED BY THE FIRST

AMENDMENT AND CORRECTLY APPLIED THE PICKERING-CONNICK

BALANCING TEST TO THAT SPEECH.

A person who creates speech that is protected by the First

Amendment under the Pickering-Connick balancing test may not

suffer from the adverse action of an employer if the protected

speech is the cause of the adverse action. Garcetti v. Ceballos,

547 U.S. 410 (2006); Rankin v. McPherson, 483 U.S. 378, 388

(1987); Connick v. Myers, 461 U.S. 138 (1983); Mt. Healthy City

Sch. Dist. Bd. Of Educ. v. Doyle, 429 U.S. 274, 287 (1977);

Pickering v. Bd. Of Ed., 391 U.S. 563, 573 (1968); Guilloty

Perez v. Pierluisi, 339 F.3d 43, 56 (1st Cir. 2003). This Court

should affirm the Circuit Court’s decision to deny Petitioners’

motion for summary judgment because Petitioners engaged in an

adverse action against Dr. Rutherford for creating a social

media post protected by the First Amendment under the Pickering-

Connick balancing test. See Id.

Dr. Rutherford created a social media post that was

protected by the First Amendment under the Pickering-Connick

balancing test. The social media post was within the scope of

the Pickering-Connick balancing test because Dr. Rutherford was

a public employee speaking “as a citizen on a matter of public

concern.” See Garcetti, 547 U.S. at 418. The social media post

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was protected by the First Amendment because the public’s

interest in protecting it outweighed the State’s interest in

regulating it. See Rankin, 483 U.S. at 388. Therefore, the

social media post was protected by the First Amendment under the

Pickering-Connick balancing test.

The social media post caused Petitioners to engage in an

adverse action against Dr. Rutherford. The social media post was

a “substantial and motivating factor” behind Petitioners’

adverse action. See Guilloty, 339 F.3d at 56. Petitioners would

not have engaged in the adverse action “in the absence of” the

constitutionally protected social media post. See Doyle, 429

U.S. at 287. Therefore, the social media post caused Petitioners

to engage in the adverse action.

Dr. Rutherford’s constitutionally protected social media

post was the cause of Petitioners’ adverse action. Therefore,

this Court should affirm the Circuit Court’s decision to deny

Petitioners’ motion for summary judgment. This court reviews the

issue de novo. See Selch v. Letts, 5 F.3d 1040, 1043 (7th Cir.

1993).

A. Dr. Rutherford’s social media post was protected by the first amendment under the Pickering-Connick balancing

test.

i. The social media post was within the scope of the Pickering-Connick balancing test because Dr.

Rutherford was a public employee speaking “as a

citizen on a matter of public concern.”

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The social media post was within the scope of the

Pickering-Connick balancing test. The Pickering-Connick

balancing test applies to speech when the speaker is (1) a

public employee (2) speaking as a “citizen” (3) on “a matter of

public concern.” Garcetti, 547 U.S. at 418. Dr. Rutherford is a

public employee speaking as a “citizen” on “a matter of public

concern.” See Id. Therefore Dr. Rutherford’s social media post

was within the scope of the Pickering-Connick balancing test.

Dr. Rutherford was a public employee speaking as a

“citizen” when he made the social media post. Dr. Rutherford is

a public employee because his employment it implicates the

interest of “a public service provider.” See Bd. Of Cnty.

Comm’rs v. Umbehr, 518 U.S. 668, 678 (1996). Additionally, Dr.

Rutherford was a physician, which places him among the group of

independent contractors included within the definition of

“public employee” as the term is used in the context of the

Pickering-Connick balancing test. See id.; see also Ezekwo v.

NYC Health & Hosp. Corp., 940 F.2d 775 (2d Cir. 1991). Dr.

Rutherford was speaking as a citizen when he created the social

media post because he did not create the post “pursuant to [his]

official duties,” (i.e. he was not paid to create it), and the

post is similar to speech “submitted by numerous citizens every

day.” See Garcetti, at 421-422. Therefore, Dr. Rutherford was a

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public employee speaking as a citizen when he made the social

media post.

Dr. Rutherford was speaking on “a matter of public concern”

when he made the social media post.” The “content, form, and

context” of the social media post was a matter of public concern

for several reasons. See Garcetti, 547 U.S. at 418. First, the

99 Percent grant is a state-funded grant, and its goal was the

subject matter of the social media post. Therefore, the content

of the social media post was per se a matter of public concern.

Second, the form and context of the social media post are among

those that characterize matters of public concern because blogs,

private or public, are among the forms of expression that may

enjoy First Amendment protection. See Givhan v. W. Line Consol.

School. Dist., 439 U.S. 410, 415-16 (1979); see also Fara v.

Esquire Magazine, Inc., 863 F. Supp. 2d 29 (D.D.C. 2012).

Finally, “private” does not accurately characterize the form and

context of the social media post because, as one Petitioner

points out, there was a likelihood that “[p]arents . . . [will]

pass[] around this . . . post.” Therefore, because Dr.

Rutherford was a public employee speaking on a matter of public

concern, his social media post was within the scope of the

Pickering-Connick balancing test.

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ii. The social media post was protected by the First Amendment because the public’s interest in protecting

it outweighs the state’s interest in regulating it.

Dr. Rutherford’s social media post was protected by the

First Amendment because the public’s interest in protecting it

outweighed the State’s interest in regulating it. See Ramkin,

483 U.S. at 388. The public’s interest in “having free and

unhindered debate” on the content of the Dr. Rutherford’s social

media post is, again self-evident, as is evidenced by the

existence of HDRI’s 99 Percent grant. See Pickering, 391 U.S. at

573. Additionally, the Respondent, as a cardiac surgeon and co-

inventor of the Doda Stent, was uniquely qualified to provide

the expert opinion in the social media post. Further evidence of

the public’s interest in the Dr. Rutherford’s post lies in the

fact that HDRI, the institution responsible for assigning the 99

Percent grant, is a state agency. Therefore taxpayers

essentially fund the grant. And because Dr. Rutherford’s post

disseminated an expert opinion directly related to an initiative

that the public funds, the social media post “was ‘a matter of

legitimate public concern’ upon which ‘free and open debate is

vital to informed decision-making by the electorate.’” See

Connick, at 145 (quoting Pickering at 571-72). These facts

demonstrate that the public’s interest in protecting Dr.

Rutherford’s social media post under the First Amendment was

overwhelmingly strong.

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The State’s interest in allowing for the regulation of the

Dr. Rutherford’s post, however, was unclear at best. The

State’s interest in this case was the same as Petitioners’

interest: to “promot[e] the efficiency of the public services it

performs through its employees.” See Pickering, 391 U.S. at 573.

Specifically, this interest was the “initiative” of “increasing

vaccination rates.” But hospitals compete for the 99 Percent

Grant, which aims to accomplish that same goal. Thus, the

initiative will be achieved regardless of whether HUGH receives

the grant or not, because the grant will be issued to, and the

initiative will be promoted by, the hospital that receives the

Grant, even if that hospital is not HUGH. Additionally,

PETITIONER does not “promote the efficiency of the public

services it performs” if HUGH obtains the 99 Percent grant

through “photos with the governor . . . and trinkets” rather

than on the merits of its abilities to achieve the initiative.

Finally, as a public employee in this case, Dr. Rutherford is in

an appropriate position to evaluate the merits of Petitioners’

ability to efficiently accomplish the initiative, as well as to

determine whether the initiative itself is “a public service.”

Therefore regulating Dr. Rutherford’s social media post works

against “promoting the efficiency of the public services

[Petitioner] performs.”

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Petitioners improperly argue that Dr. Rutherford’s social

media post disrupted their ability to efficiently promote their

initiative and therefore impeded the State interest. But, as

the Circuit Court stated, “[p]ossible disruption of the 99

Percent initiative . . .is not enough to outweigh Dr.

Rutherford’s First Amendment rights.” See Waters v. Churchill,

511 U.S. 661, 677 (1994). These reasons clearly demonstrate the

anemic quality of the State’s (i.e. Petitioners’) interest. See

Pickering, 391 U.S. at 573. And because the State’s interest in

regulating Dr. Rutherford’s social media post is weak in

comparison to the public’s interest in protecting it, Dr.

Rutherford’s social media post is protected by the First

Amendment.

B. The constitutionally protected social media post caused Petitioner to engage in the adverse action against Dr.

Rutherford.

i. The constitutionally protected social media post was a “substantial and motivating factor” behind

Petitioners’ adverse action.

Dr. Rutherford’s constitutionally protected social media

post was a “substantial and motivating factor” behind

Petitioners’ adverse action. See Guilloty, 339 F.3d at 56.

Sufficient proof of this exists in the facts leading up to

Petitioners’ adverse action taken against Dr. Rutherford. See

Id. (citing Lewis v. City of Boston, 321 F.3d 207, 219 (1st Cir.

2003) (“where motivation is an issue, [the employee] can rely on

23

circumstantial evidence”). First, Petitioners called for the

“request for corrective action” the week Dr. Rutherford made the

social media post, and commenced the adverse action less than

two months after that. Additionally, Petitioners made comments

such as, “[Dr. Rutherford Will] take us down with him if he can”

and “Dr. Rutherford was disrupting the initiative,” implying

that Petitioners’ subsequent adverse action was substantially

motivated by Dr. Rutherford’s social media post.

Further, Petitioners have not provided an alternative

reason for commencing the adverse action. For every cause

Petitioners provide in the July 31st report as a reason for

commencing the adverse action against Dr. Rutherford, Dr.

Rutherford provides a rational and convincing explanation. To

begin with, Petitioners claim that Dr. Rutherford had

“unacceptably high rates of morbidity and post-operative

complications” and “fail[ed] to meet the [HUGH’s] standard of

care.” Dr. Rutherford’s explanation for this is that the

patients he treated with the Doda Stent “tend[ed] to be the most

physically vulnerable.” Second, Petitioners claim that Dr.

Rutherford had “unacceptably high rates of . . . post-operative

complications,” which Dr. Rutherford explains as resulting from

“the Hospital’s HVAC system [which malfunctioned and piped]

sewer exhaust into recovery rooms.” Further, Dr. Rutherford

explains that, during this HVAC malfunction, patient infections

24

at PETITIONER rose in general, and not exclusively for him.

Finally, while the Medical Executive Committee did not include

Dr. Rutherford’s social media post among the factors it would

consider in its investigation, the final reason Petitioners gave

for commencing the adverse action against Dr. Rutherford was

that his conduct “impede[d] quality patient care,” alluding to

the claim that Dr. Rutherford “was disrupting the initiative [of

vaccinating the public].” In other words, Dr. Rutherford

provides a logical and convincing explanation for all of

Petitioners’ reasons for commencing the adverse action, save Dr.

Rutherford’s social media post. This evidence overwhelming shows

that Dr. Rutherford’s social media post was a “substantial and

motivating factor” behind the Petitioners’ adverse action. See

Guilloty, 339 F.3d at 56.

ii. Petitioner would not have engaged in the adverse action “in the absence of” the constitutionally

protected social media post.

The Petitioner would not have engaged in the same adverse

action “in the absence of the protected conduct.” See Mt. Health

City, 429 U.S. at 287. Though the Petitioner has the burden to

demonstrate “by a preponderance of the evidence” that Petitioner

would have engaged in the same adverse action “in the absence of

the protected conduct,” the facts make it impossible for

Petitioners to meet that burden. See Id. This is true because

Petitioners examined Dr. Rutherford’s career over “the last six

25

years” when they performed their investigation. This strongly

suggests that Dr. Rutherford’s social media post was the reason

for Petitioners seeking to commence the adverse action, and that

Petitioners were looking for an alternative cause to use as an

excuse for commencing the adverse action in order to avoid a law

suit such as the present one. But even if this court reads the

facts in the light most favorable to Petitioners and views Dr.

Rutherford’s social media post as the culmination of a history

of punishable behavior, the social media post still remains the

ultimate cause of Petitionerss adverse action. These facts

demonstrate that it is impossible for Petitioners to show that

they would have engaged in the adverse action “in the absence of

the protected conduct.” See Id. Therefore, Petitioner would not

have engaged in the adverse action “in the absence of” Dr.

Rutherford’s constitutionally protected social media post. See

Id.

II. THIS COURT SHOULD AFFIRM THE COURT OF APPEALS DECISION

IN FAVOR OF DR. RUTHERFORD BECAUSE HE HAS SHOWN BY A

PREPONDERANCE OF THE EVIDENCE THAT HCQIA IMMUNITY

SHOULD NOT APPLY TO PETITIONERS.

The Health Care Quality Improvement Act (HCQIA) endows

members of professional physician review committees with limited

immunity from liability for money damages under common law

claims. 42 U.S.C.S. §§ 11101-11152; see also Patrick v. Burgett,

486 U.S. 94, 105-06 (1988). Broadly speaking, Congress intended

26

HCQIA to improve health care quality by strengthening

protections for those who engage in professional physician peer

review, making it easier for physicians to protest poor behavior

or performance of colleagues. See Lie v St. Joseph Hosp., 964

F.2d 567 (6th Cir. 1992) (quoting from the Congressional

findings incorporated into the HCQIA at § 11101); see also

Hancock v. Blue Cross-Blue Shield, 21 F.3d 373, 374-75 (10t Cir.

1994). HCQIA immunity applies to members of professional review

committees whenever the review committee’s proceedings conform

to the standards established by Congress in the law in 42 U.S.C.

§ 11112. Matthews v. Lancaster Gen. Hosp., 87 F.3d 624 (3rd Cir.

1996). Under § 11112, the professional review action must have

been taken:

(1) In the reasonable belief that the action was in

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).

27

42 U.S.C. §11112(a)(2006). Failure to comport with any one of

the above criteria is grounds for rebutting the presumption that

the peer review panel’s actions meet the standard for immunity

under the HCQIA. See Wahi v. Charleston Area Med. Ctr., 453 F.

Supp. 2d 942, 948-49 (S.D.W.V. 2006).

Therefore, in order to obtain money damages at trial, Dr.

Rutherford must rebut the presumption that Petitioners’ actions

against are protected by HCQIA immunity because Petitioners’

actions do not conform to § 11112. See Smith v. Ricks, 31 F.3d

1478, 1485-86 (9th Cir. 1994). This Court should affirm the

Court of Appeals decision that HCQIA immunity should be denied

to Petitioners’ ad hoc committee and the MEC because its actions

were undertaken under less than all of the conditions in §

11112.

A. This Court should consider evidence of decision-maker bias to overcome the presumption that Petitioners’

actions meet the standard for immunity under the Health

Care Quality Improvement Act.

As the plaintiff, Rutherford bears the burden of proving

noncompliance with the HCQIA standards. See Bryan v. James E.

Holmes Regional Medical Ctr., 33 F.3d 1318, 1333 (11th Cir.

1994), cert. denied, 115 S. Ct. 1363 (1995). This court must

answer the question posed below: “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,

28

that the defendants’ actions are outside the scope of

§11112(a)?” Austin v. McNamara, 979 F.2d 728, 734 (9th Cir.

1992). In answering this question, this court must find in favor

of Dr. Rutherford, especially considering that evidence of

decision-maker bias is admissible to prove that HCQIA immunity

should not apply.

i. The plain language of HCQIA reveals that decision-maker bias should be among the factors included in

deciding whether to rebut the presumption that HCQIA

standards have been met.

Under the plain language of the HCQIA, “reasonableness”

appears to be a prime concern of the statute. Indeed, three of

the four requirements hinge on a finding of “reasonable”

procedural guarantees by the review committees or “reasonable”

beliefs on their part. 42 U.S.C. § 1112(a)(1),(2), and (4). The

use of the word “reasonable” was intended to implicate an

objective rather than subjective standard for the review boards

to follow in their professional review actions.

While this exclusion of subjective criteria meant that

subjective issues of bias could not be directly considered

alone, it is reasonable to assume that bias can figure into the

objective analysis of whether the hospital provided adequate

procedural protections for the physicians. Indeed, there is no

reason why bias cannot constitute part of assessing whether the

hospital’s proceedings were under reasonable beliefs, an

29

inherently subjective inquiry. Brown v. Presbyterian Healthcare

Services, 101 F.3d 1324 (10th Cir. 1996), cert. denied, 117 S.

Ct. 1461 (1997); see generally Diane Gupton, The Tenth Circuit

Lowers the Evidentiary Burden to Overcome Peer Review Immunity

Under the Health Care Quality Improvement Act-Brown v.

Presbyterian Healthcare Services, 28 N.M.L. Rev. 625 (1998)

(explaining how subjective reasoning can be incorporated into an

objective analysis). Moreover, the use of the phrase “under the

circumstances” in the third condition for HCQIA immunity implies

that circumstances of the different parties’ interests should at

least be part of the consideration. 42 U.S.C. § 11112(a)(3).

It is well established that decision-maker bias alone would

be insufficient to deem a professional review committee’s

protections deficient for HCQIA purposes. See, e.g., Poliner v.

Tex. Health Sys., 537 F.3d 368, 380 (5th Cir. 2008). However,

considering it in context of reasonableness or reasonableness

under the circumstances, bias is an important consideration. See

Austin v. McNamara, 979 F.2d at 741, n.3 (“Any inquiry into the

reasonableness of the reviewers' beliefs should at least

consider any evidence of bias or ulterior motive even though an

objective standard ultimately applies”).

Moreover, other provisions in the HCQIA support this

interpretation of § 11112. In § 11151(9), HCQIA deems that

actions primarily based on the physician’s advertising,

30

participation in certain health plans, affiliations with private

practice groups, or “any other matter that does not relate to

the competence or professional conduct of a physician” are not

within the scope of HCQIA’s protections. 42 U.S.C. § 11151(9).

Arguably, Petitioners’ decision rested on a matter unrelated to

Dr. Rutherford’s patient safety record, making it unlikely that

HCQIA protections should even apply.

ii. HCQIA legislative history indicates that decision-maker bias was a primary concern of Congress, and the

statute should be interpreted to avoid giving

credence to biases.

Congress intended to create an objective standard for HCQIA

immunity to attach. See Austin v. McNamara, 979 F.2d 728 at 734.

“Good faith” professional peer review was the realm of peer

review that Congress expressly wanted to protect. The House

Committee Report on § 11112(a) reads:

“Initially, the Committee considered a "good faith"

standard for professional review actions. In response to

concerns that "good faith" might be misinterpreted as

requiring only a test of the subjective state of mind of

the physicians conducting the professional review action,

the Committee changed to a more objective ‘reasonable

belief’ standard. The Committee intends that this test will

be satisfied if the reviewers, with the information

available to them at the time of the professional review

31

action, would reasonably have concluded that their actions

would restrict incompetent behavior or would protect

patients.”

H.R. Rep. No. 903, 99th Cong., 2d Sess. 10, reprinted in 1986

Code Cong. & Admin. News 6392-93; see generally, Susan L.

Horner, The Health Care Quality Improvement Act of 1986: Its

History, Provisions, Applications, and Implications, 16 Am. J.

L. Med. 455, 468 (1990) (describing the Committee on Energy and

Commerce’s express adoption of an objective “reasonableness”

requirement rather than pure “good faith” to avoid subjectivity

problems). Indeed, the very heading of Title IV reads

“Encouraging Good Faith Professional Review Activities.” Health

Care Quality Improvement Act of 1986, Pub. L. No. 99-660, § 402,

§411-412(a) 100 Stat. 3784 (1986).

Although courts have tended to interpret HCQIA very

broadly, Congress did not intend for the law to be a blanket

form of immunity.

“Initially, the [House] Committee considered establishing a

very broad protection from suit for professional review

actions. In response to concerns that such protection might

be abused and serve as a shield for anti-competitive

economic actions under the guise of quality controls,

however, the Committee restricted the broad protection.

32

H.R.Rep. No. 99-903 at *9, reprinted in 1986 U.S.C.C.A.N. at

6391)(1986 WL 31972). Moreover, the bill sponsor said, "the

immunity provisions [were] restricted so as not to protect

illegitimate actions taken under the guise of furthering the

quality of health care. Actions . . . that are really taken for

anticompetitive purposes will not be protected under this bill."

132 Cong. Rec. 30766 (1986) (remarks of Rep. Waxman); see also

Health Care Quality Improvement Act of 1986: Hearings Before the

Subcomm. on Civil and Constitutional Rights of the House Comm.

on the Judiciary, 99th Cong., 2d Sess. (Oct. 8 and 9, 1986), at

90 (Statement of Ivy L. Davis, Asst. Counsel, Subcomm. on Civil

and Constitutional Rights ("[I]f the peer review committee is

really used as a subterfuge for some other activity, the

immunity will not apply and therefore, the affected doctor could

get damages"). Although this case does not directly implicate

antitrust concerns, arguably Dr. Rutherford’s colleagues’

interest in promoting their own initiatives serves to aggrandize

their own practices or professional clout and resembles the

antitrust concerns the Legislature was concerned about. More

importantly, several clues in the record indicate that the ad

hoc committee’s and MEC’s recommendation to suspend Dr.

Rutherford’s privileges could reasonably be interpreted as a

“shield” for self-interested objectives. Indeed, Congress

intended for the law to help "physicians receive fair and

33

unbiased review to protect their reputation and medical

practices." 1986 Code Cong. & Admin. News at 6393.

iii. Case law precedent indicates that decision-maker bias is relevant to determining the issue of HCQIA

immunity.

Decision-maker bias has been rejected as a factor in

determining HCQIA immunity in many circuits. See, e.g.,

Sugarbaker v. SSM Health Care, 190 F.3d 905 (8th Cir. 1999);

Brader v. Allegheny Gen. Hosp., 167 F.3d 832 (Ct. App. 3rd Cir.

1998); Bryan v. James E. Holmes Regional Med. Ctr., 33 F.3d 1318

(Ct. App. 11th Cir. 1994). These circuits point to legislative

intent of limiting bias as a consideration in judicial review

and limiting judicial interference in internal hospital

decisions.

However, a substantial number of jurisdictions recognize

the fairness issues implicated in considering decision-maker

bias in determinations of whether § 11112 HCQIA immunity should

apply. This court should adopt this more realistic and fair

stance in its approach to HCQIA immunity cases. Several cases

highlight the reasons why decision-maker bias is relevant to

HCQIA immunity determinations.

In Clark v. Columbia/HCA Information Services, Inc., 25

P.3d 215 (Nev. 2001), the court held that a psychiatrist’s

revocation of privileges was due to the psychiatrist’s good

faith attempt to improve quality by reporting the hospital’s

34

policies to outside agencies. At a peer review board meeting,

the psychiatrist’s reports to outside agencies was discussed in

depth as contributing to an atmosphere of distrust, taking up

excessive staff time, and ultimately, having an adverse impact

on hospital operations. Id. at 473. The board alleged one

incident of misconduct with a psychiatric patient and one

confidentiality breach issue. Id. The board decided that this

conduct amounted to a violation of Medical Staff Bylaws and

voted to revoke his privileges. Id. The court found that this

decision was not protected by HCQIA because of the weak evidence

presented against the physician and the apparent other motives

of the people involved in making the decision. Id. at 478-79.

The decision also noted that the circumstances of the case

prompted parallels with whistleblower protections enacted by the

state. Id. at 479.

In the case at bar, Petitioners did not contend openly in

its letter to Dr. Rutherford that the potential disruptiveness

of the ConnectSpace post was part of the discussion about his

alleged violation of by-laws. The court said in Clark that “One

instance of an objective basis for discipline does not per se

permit a hospital to claim immunity under § 11112(a)(1) since we

review a peer review board's decision under the totality of the

circumstances.” Clark at 489-80. Similarly, just because

Petitioners relied on a few patient safety concerns from Dr.

35

Rutherford’s long history as a physician should not immediately

mean that HCQIA immunity shields the revocation of privileges.

Evidence of retaliatory intent on the part of a

professional review panel is relevant to determining HCQIA

immunity. In Freilich v. Upper Chesapeake Health Sys., 33 A.3d

932 (Md. 2011), the court held that “evidence of retaliatory

motive on the part of a disciplinary body is relevant when

offered to rebut the presumption of HCQIA immunity.” Id. at 934.

Although the court did not find that the physician in that case

had rebutted the HCQIA presumption of immunity, they did note

that “any evidence is relevant if it could lead a rational trier

of fact to conclude that the immunity standards were not met.”

Id. at 942. Evidence of a retaliatory motive is relevant because

it can explain whether the defendants made a reasonable effort

to obtain the facts of the matter, or may “supplant” the

required reasonable belief that professional review was

warranted under the circumstances or was in furtherance of

quality health care. Id. The court also noted that if the action

was “primarily based on . . . any . . . matter that does not

relate to the competence or professional conduct of a physician”

the action could not qualify as “professional review” and

therefore would deserve no protection from HCQIA. Id. quoting 42

U.S.C. § 11151(9).

36

Evidence of retaliatory motive is relevant to determining

whether a reasonable jury could find that the conditions of §

11112 had not been met. In Ritten v. Lapeer Reg’l Med. Ctr., 611

F. Supp. 2d 696 (E.D.M.I. 2009), the court held that the

plaintiff had brought sufficient evidence to convince a

reasonable trier of fact that his privileges were revoked for

reasons not related to the quality of patient care. 611 F. Supp.

2d 696 at 720. The plaintiff in that case alleged that his

supervisor suspended his privileges in retaliation against his

EMTALA-protected refusal to transfer an unstable patient

suffering from an emergency health condition. Id. “If Buxton

acted on this basis,” the court said, “a trier of fact could

readily conclude that such a decision was not grounded in

considerations of quality health care, but instead upon an

unfounded belief that Plaintiff was performing elective

abortions in violation of [hospital] policy.” Id. The court also

criticizes how the reviewing physician panel failed to wait for

a complete record of procedures conducted by the physician in

question, including explanations of why the physician relied on

more risky procedures with his patients. Id. at 721. Moreover,

the plaintiff in that case had rates of performing these

complicated services that were not higher than other physicians

in the facility at the time and the reviewing panel failed to

explain why the plaintiff was singled out. Id.

37

In Dr. Rutherford’s case, a jury could reasonably find that

members of Dr. Rutherford’s ad hoc review committee had

retaliatory motives against him. Dr. Glower was an influential

member of the panel whose prime initiative Dr. Rutherford had

recently questioned in the public sphere. Moreover, Dr. Polishov

was also chair of the MEC which made the recommendation for his

revocation of privileges. Although Dr. Polishov did not have the

same interest in promoting the 99 Percent grant as Dr. Glower,

she also has an interest in ensuring the success of major

grants. While these retaliatory motives alone might not be

sufficient to defeat HCQIA immunity, it is certainly one factor

that should be considered.

The conflicts of interest between the members of an MEC are

also relevant. In Osuagwu v. Gila Reg'l Med. Ctr., 850 F. Supp.

2d 1216 (D.N.M.), the court considered the impartiality of the

MEC reviewing a physician’s patient safety record, among other

failures to provide procedural protections to the physician. The

court there noted that “the [fair hearing committee] panel was

not impartial because Gila Regional's CMO — who holds a position

of power over all of the physicians who participated in the

disciplinary proceedings — served as Plaintiff's accuser,

investigator, prosecutor, and one of his judges.” Id. at 1239.

Similarly, in Dr. Rutherford’s case, Dr. Polishov, an

influential physician, initiated a professional review action

38

against Dr. Rutherford and installed two close associates on the

ad hoc committee, Dr. Milk and Dr. Glower. Therefore, the review

conducted by this ad hoc committee might have been a biased

finding.

Courts should be wary of professional review actions being

used as ruses or schemes to cover up other objectives in

terminating a physician’s privileges. In Hilton v. Children’s

Hosp. San Diego, 107 Fed. Appx. 731 (9th Cir. 2004), a physician

alleged that members of a “professional review panel” entered

into an illegal market division agreement intended to prevent

that physician from competing in the pediatric radiology market

in San Diego. Id. at 733. The physician claimed that the

professional review activities were not undertaken in good faith

or in the interest of good health care. Id. Rather, the actions

were a ruse or a cover to obscure a decision already made

unlawfully to exclude her from practicing in that area. Id. at

733-34. The court issued a memorandum clarifying that if the

physician could survive summary judgment and prove that her

review activities stemmed from an illegal agreement rather than

honest professional peer review, HCQIA immunity would not be

warranted. Id. at 734.

Similarly, in Dr. Rutherford’s case, Petitioners concealed

its true objective in terminating Dr. Rutherford’s privileges. A

reasonable jury could conclude that under the circumstances, the

39

PETITIONER MEC was using the professional review action as a

ruse to either terminate Dr. Rutherford’s association with the

hospital or discredit him in the eyes of the public in order to

temper the effect of his message about the 99 Percent Grant. In

light of these circumstances, the court should be skeptical of

Petitioners’ proferred reason for terminating Dr. Rutherford’s

privileges.

Evidence of actual bias has rarely been proved. See, e.g.,

Laje v. R. E. Thomason General Hospital, 564 F.2d 1159, 1162

(5th Cir. 1978) (“In addition to other evidentiary deficiencies,

“Moreover, Dr. Lage has failed to convince us that the hospital

board was not an impartial decisionmaker”) and Woodbury v.

McKinnon, 447 F.2d 839, 844 (5th Cir. 1971) (stating that “. . .

the record is bare of any indication that the medical staff was

in fact biased by any mater not relevant to the proper

consideration of Dr. Woodbury’s qualifications.”) However,

language from the case law indicates that many courts consider

whether bias was a factor in a professional review action. This

court should continue along this line of reasoning and consider

how decision-maker bias impacted each of the “reasonable”

criteria under § 11112(a) in Dr. Rutherford’s case.

40

B. Dr. Rutherford has shown by a preponderance of the evidence that not all of the conditions for HCQIA

immunity were obtained in his case.

We remind the court that this court must obtain its answer

by viewing the facts in the light most favorable to Dr.

Rutherford. See Austin v. McNamara, 979 F.2d at 733 (“The court

reviews the grant of summary judgment de novo and should reverse

if a reasonable jury, viewing the facts in the light most

favorable to the nonmoving party, might return a verdict in that

party's favor”). At this stage in the proceedings, the only

question at issue is whether a reasonable jury could reasonably

conclude that Dr. Rutherford established by preponderance of the

evidence that any of the HCQIA conditions were not met by the

Petitioners. Dr. Rutherford could convince a reasonable jury

that none of these four criteria were met by the preponderance

of the evidence standard, based on the considerations outlined

in the case law above.

i. A reasonable jury could conclude that Petitioners’ actions were not undertaken in furtherance of quality

health care.

An action taken in the reasonable belief that the action

was in the furtherance of quality health care means that the

reviewers would “reasonably have concluded that their action

would restrict incompetent behavior or would protect patients”

based on the information available at the time of the

41

professional review action. Meyers v. Columbia/HCA Health Care

Corp., 341 F.3d 461, 468 (6th Cir. 2003).

Given the proximity in time between the ConnectSpace post

and the initiation of investigations of Dr. Rutherford’s work, a

reasonable jury could certainly conclude that the PETITIONER MEC

was searching for reasons to dissociate Dr. Rutherford from the

hospital. Based on the evidence Dr. Rutherford has presented of

decision-maker bias, a jury would likely conclude that the

literal requirements of HCQIA immunity were not met: The MEC’s

actions were not in fact undertaken in furtherance of quality

cardiac surgery. Rather, Petitioners’ actions were in

furtherance of Petitioners’ agenda as a leader in vaccination

and specifically, the agendas of several key decision-makers on

the Committee.

ii. A reasonable jury could conclude that Petitioners’ actions were not taken after a reasonable effort to

obtain the facts of the matter.

Dr. Rutherford alleged that the MEC convened their meetings

without interviewing him or any other cardiac surgeon, although

they did offer him the opportunity to appear at a hearing. He

noted that the MEC focused on numbers out of context in their

review of his patient morbidity statistics, failing to capture

the total picture of his clinical practice. Relying on a sparse

and misleading portion of the physician’s record can certainly

be interpreted as the absence of “a reasonable effort to obtain

42

the facts of the matter.” Brown v. Presbyterian Healthcare

Servs., 101 F.3d 1324 (10th Cir. 1996).

iii. A reasonable jury could conclude that that Petitioners’ actions were not undertaken after

adequate notice and hearing procedures as are

afforded to the physician under the circumstances.

Dr. Rutherford does not dispute that PETITIONER offered an

opportunity to be heard at the ad hoc committee meeting, and

that he was appraised of most of his rights as a physician

undergoing professional review. However, under the circumstances

of the ConnectSpace issue and its intimate involvement with

members of the MEC reviewing Dr. Rutherford, a reasonable jury

might conclude that the MEC’s notice to Dr. Rutherford was

deficient. Many courts have not interpreted “adequate notice and

hearing” to mean anything beyond what procedures the hospital

happens to have in place via its bylaws. So long as the

hospital’s self-imposed procedural restrictions appear to

conform to the major tenets of procedural due process, including

right to counsel, right to present evidence, right to confront

witnesses, and right to notice, courts will generally not

interfere with the adequacy of professional review process. See

generally Elenor D. Kinney, Hospital Peer Review of Physicians:

Does Statutory Immunity Increase Risk of Unwarranted

Professional Injury? 13 Mich. St. J. Med. & Law 57 (2009)

(henceforth “Hospital Peer Review of Physicians) (summarizing

43

important procedural due process concerns from recent HCQIA

court decisions). However, even when some aspects of this

framework are not met, courts have declined to step into assist

physicians whose rights have been trampled by well-insulated

hospitals. Id.; see also Smith v. Ricks 31 F.3d at 1485-87

(describing courts’ historically lenient approach to the

procedural protections of HCQIA).

Dr. Rutherford urges this court to at least consider the

deficiencies in his notice and hearing. In addition to the

notice concerns brought up in the court below, Dr. Rutherford’s

ability to question the integrity of the decision was severely

undermined without a substantial record of the matters discussed

therein. Without minutes, the PETITIONER MEC made it difficult

for anyone to determine whether the ad hoc committee actually

considered other factors (such as the ConnectSpace post) more

important to their decision than Dr. Rutherford’s patient

statistics. When considering that the hospital was essentially

going to be voting to deprive Dr. Rutherford of his very

livelihood, a reasonable jury could conclude that the procedural

protections due to Dr. Rutherford were much higher than what

were actually afforded.

44

iv. A reasonable jury could conclude that Petitioners’ actions were not undertaken in the reasonable belief

that the action was warranted by the facts after such

reasonable effort to obtain facts and after meeting

the requirements of (3).

In sum, a jury might find it difficult to reason its way

into thinking that a panel of rather senior physicians, well

versed in the art of statistics, would reasonably conclude that

their colleague had unusually high morbidity and mortality among

his patients when that physician clearly worked with highly

complex subset of cases. Furthermore, in light of the hospital’s

failure to provide a sterile working environment due to the HVAC

malfunction and Dr. Rutherford’s integral role in remedying this

blatant patient risk, a jury would be highly skeptical of the

MEC’s claims that Dr. Rutherford was a clear outlier in surgical

quality. A reasonable jury might be aware of the likelihood that

surgeons are notorious for their relatively poor bedside manner

and social skills, leading them to conclude that Dr.

Rutherford’s conduct was not so egregious as to deserve

termination of privileges. Rutherford’s attitude problems were

hardly relevant to patient safety when his innovative Doda Stent

and attention to detail had likely saved far more patients.

Finally, the presence of a clear conflict of opinions on non-

patient risk-related matters between Dr. Rutherford and members

of the MEC would raise further red flags in the reasoning

process of the ordinary jury.

45

C. The court should prioritize due process in the case at bar by refusing to recognize HCQIA immunity for

Petitioners, above the overly deferential HCQIA

precedent.

Several policy arguments militate in favor of stronger due

process requirements in the HCQIA context. Historically, courts

have avoided second-guessing the decisions of hospital internal

review committees for a variety of rationales. See generally

Sadler v. Dimensions Healthcare Corp., 378 Md. 509 (Ct. App. Md.

2003) (reviewing history of deferential judicial review of

hospital credentialing systems). The doctrine of non-review has

been modified in several jurisdictions to allow limited court

inquiry into whether the hospital has complied with its own

credential reviews. See, e.g., Greisman v. Newcomb Hosp., 192

A.2d 817, 824-25 (N.J. 1963) (recognizing private right of

action because of effect on physician’s ability to practice and

public interest in health care). Reviewing whether the physician

had access to a fair hearing is generally limited to determining

whether the requirements of hospital bylaws were “substantially

complied with.” See Sadler at 524 (citing Shulman v. Washington

Hosp. Ctr., 222 F. Supp. 59, 63 (D.D.C. 1963))

In Mathews v. Eldridge this court outlined “specific

dictates of due process” that should be considered here.

Matthews v. Eldridge, 424 U.S. 319 (1976). These include the

private interests to be affected by official action, the risk of

46

erroneous deprivation of such interest through the procedures

used, and the probable value of additional safeguards, and the

Government’s interest. As a public hospital, PETITIONER is

considered a state actor, and its procedural safeguards, when

analyzed under the Eldridge framework, are insufficient to

protect the interests of physicians. From a fairness

perspective, physicians penalized by HCQIA-shielded boards must

use courts as a remedy of last resort. Even in cases where

physicians are later rescued by due process measures within

their own institutions, as was the case here for Dr. Rutherford,

the reputational damage faced by physicians who suffer this fate

is immense. See, e.g, William W. Parmley, Clinical Peer Review

or Competitive Hatchet Job, 36 J. Am. College of Cardiology 2347

(2000).

From a logical policy standpoint, it is also worthwhile to

consider what sort of conduct this encourages among physicians

and peer review groups convened for the purpose of judging their

colleagues’ work. Virtually every practitioner without a near

perfect record would have reason to fear that if they ever

crossed a line or disagreed with any other physician at their

institution, whether or not their transgression had anything to

do with patient care, their privileges could be terminated

without an opportunity for meaningful review by the courts. See

Hospital Peer Review at 80 (Unless the physician’s record “is

47

virtually perfect, it is possible for other physicians and

staff, including those with an ulterior agenda, to find and

document some infraction of the standards for high quality

clinical care that would be sufficient to support the

‘reasonable belief’ standard”).

Furthermore, deciding to uphold HCQIA in its most egregious

form would do patients and consumers little service. It would

hinder innovative minds like Dr. Rutherford, who undertake risky

but potentially quantum advances in medical technology such as

the Doda Stent. These risky procedures might result in poorer

success rates for that physician’s procedures, but only because

of the inherent difficulty in working with such cases. The

chilling effect of such a policy is obvious.

HCQIA-shielded internal review committees may terminate the

employment of highly trained medical professionals, whose

efforts to reach a superior level of training are in part

taxpayer-funded. Courts would be wise to avoid negating the

expense of years and thousands of dollars on training where

these resources have been well-spent cultivating brilliant if

occasionally fallible minds.

Finally, fears that a lenient approach to HCQIA immunity would

lead to courts running hospital systems are unfounded. Court

determination of HCQIA immunity is not significantly different

than several other complex areas of legal determinations in the

48

medical arena, such as malpractice. Several commentators have

noted that courts have all but abdicated their duty to

meaningfully interpret the laws that Congress has enacted. See,

e.g., Hospital Peer Review at 81. The Court should not shy away

from limiting immunity appropriately in HCQIA cases. See, e.g.,

Arizona v. Maricopa County Medical Society, 457 U.S. 332 (1982)

(recognizing limits of a blanket medical exception in the

context of illegal price-fixing conspiracies.

49

CONCLUSION

For all the foregoing reasons, we respectfully request this

Court AFFIRM the Circuit Court Ruling.

Respectfully submitted on behalf of Dr. Rutherford,

PLAINTIFF-APPELLANT.

Attorney for Issue 1

Attorney for Issue 2