Lee-Bloem v. State of Maryland (Full Text)

REPORTED

IN THE COURT OF SPECIAL APPEALS
OF MARYLAND

No. 2227

September Term, 2007

ALICE LEE-BLOEM

v.

STATE OF MARYLAND, ET AL.

Krauser, C.J.,
Woodward,
Matricciani,

JJ.

Opinion by Matricciani, J.

Filed: December 4, 2008

This appeal arises out of a complaint alleging that appellant, Dr. Alice Lee-Bloem, a

licensed psychiatrist, provided substandard care to a patient under the Medical Practice Act,

Md. Code (1981, 2005 Repl. Vol., 2008 Supp.), § 14-401 et seq. of the Health Occupations

Article (“HO”). Appellant filed a verified complaint in the Circuit Court for Baltimore City

against the State of Maryland, the Maryland Board of Physicians (“the Board”) and its

individual members, the Maryland Department of Health and Mental Hygiene and its

Secretary, John M. Colmers (collectively the “State Appellees”); and the Maryland

Psychiatric Society and three peer reviewers assigned to the case by that body (collectively

the “Society Appellees”). Appellant sought a declaratory judgment and permanent injunction

against any further proceedings by the Board under both Maryland law and 42 U.S.C. § 1983

(2000).

The State Appellees moved to dismiss on the grounds that (1) appellant failed to

exhaust her administrative remedies, (2) HO § 14-405(g) prohibits a pre-charge challenge

to the Board’s investigatory process, and (3) appellant failed to allege an actionable violation

of her constitutional rights. The Society Appellees moved to dismiss on the same grounds,

and also on the ground that appellant’s claim under 42 U.S.C. § 1983 was not ripe.

The circuit court granted appellees’ motions to dismiss appellant’s complaint for

failure to state a claim. Appellant appealed, and presents the following issues for our review,

which we have slightly reworded:

I.

Whether the court erred in dismissing appellant’s action based upon the
doctrine of the exhaustion of administrative remedies.

II. Whether the court erred in dismissing appellant’s action pursuant to HO
§§ 14-405(g) and 14-401(e)(5).

III. Whether the court erred in dismissing appellant’s action as not ripe
under 42 U.S.C. § 1983.

For the reasons below, we affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

Appellant is a psychiatrist who is licensed by the Board to practice medicine in

Maryland. On April 21, 2005, the Board sent appellant a letter advising her that a complaint

had been filed against her for allegedly providing substandard medical care to a patient

diagnosed with schizophrenia. The complaint, which was made by a psychologist who was

also the patient’s former domestic partner, alleged that appellant had improperly reduced and

then withdrew the patient’s medication, resulting in several psychotic episodes. The

complaint also alleged that appellant (1) prides herself in getting her patients off of

medication and into treatments containing only nutritional supplements; (2) recommends that

her patients buy those expensive supplements from mail order companies; and (3) makes all

of her diagnoses and treatment plans based on “muscle testing,” which the complainant

alleged is “a notoriously unreliable technique popular with orthomolecular medicine

practitioners and naturopaths.”

Pursuant to HO § 14-401(c)(2),1 the Board referred the allegations to the Maryland

1 HO § 14-401(c)(2) provides:

After performing any necessary preliminary investigation of an allegation of
grounds for disciplinary or other action, the Board shall refer any allegation
based on § 14-404(a)(22) of this subtitle [which relates to allegations of failure
to meet the appropriate standard of care] to the entity or entities that have

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Psychiatric Society (“the Society”), a non-profit entity with which the Board had contracted

for the provision of peer reviews in cases involving psychiatrists.2 The Society engaged three

psychiatrists—Neil Brian Sandson, M.D., Michael Spodak, M.D., and Ellen G. McDaniel,

M.D.—to review whether appellant had met the relevant standard of care. Those peer

reviewers met with appellant between August and November of 2006.

On April 30, 2007, appellant filed a Verified Complaint for a Declaratory Judgment,

a Permanent Injunction, and Other Temporary Relief in the Circuit Court for Baltimore City.

Appellant alleged that the review process was not governed by sufficient rules, and requested

the court to declare it violative of appellant’s due process rights and therefore illegal and

invalid. Appellant also contended that the peer reviewers were not qualified to determine

whether she had complied with the appropriate standard of care because they were unfamiliar

with the orthomolecular approach she employed. Appellant also alleged that one of the peer

reviewers, Dr. Sandson, was an improper reviewer on conflict of interest grounds because

contracted with the Board under subsection (e) of this section for further
investigation and physician peer review within the involved medical speciality
or specialties.

2 The contract between the Board and the Society provides that peer reviewers shall
be certified by the American Board of Medical Specialties or the American Osteopathic
Association and have five or more years post-residency experience. The contract also
provides that “the contractor shall ordinarily designate peer reviewers who are of the same
specialty as the physician under investigation[,]” or alternatively, “the contractor may
designate a peer reviewer of a different specialty, the practitioners of which often perform
the same or similar type of procedures as that provided by the investigated physician or who
often treat the same or similar medical problems as those for which the physician provided
treatment.”

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he worked at a hospital at which appellant’s patient had been previously treated. At the time

appellant filed her complaint, the Board had not taken any disciplinary action or issued any

charges against her.

On June 11, 2007, the State Appellees moved to dismiss on the grounds that appellant

failed to exhaust her administrative remedies, HO § 14-405(g) prohibits a pre-charge

challenge to the Board’s investigatory process, and appellant failed to allege an actionable

violation of her constitutional rights. On June 22, 2007, the Society Appellees moved to

dismiss on the same grounds, and also on the ground that appellant’s claim under 42 U.S.C.

§ 1983 was not ripe.

On October 26, 2007, the court held a hearing on appellees’ motions. After hearing

argument from all parties, the court stated that “the rules and regulations specify that

[appellant’s concerns] must be raised during the administrative process before [they are]

brought to court.” The court further added that the “[c]ase law makes it very clear that

[appellant’s] objections must first be made during the administrative process and then [they]

can be made upon judicial review before this Court. Under the circumstances, that has not

happened.” Consequently, the court stated that it would grant appellees’ motions to dismiss.

On November 15, 2007, the court entered an order to that effect. This appeal followed.

DISCUSSION

As questions of law, we review the issues raised by appellant de novo. Garfink v.

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Cloisters at Charles, Inc., 392 Md. 374, 383 (2006).

I.

Appellant argues that the court erred in dismissing her action based upon the doctrine

of administrative exhaustion. Appellant argues that the doctrine does not apply in this case

because the Board lacked proper jurisdiction insofar as it did not have regulations and

procedures in place for the investigatory phase of its physician disciplinary process.

Appellant also argues that the doctrine does not apply in this case because the Board’s

administrative process does not provide an adequate remedy to address her constitutional

claims, and exhaustion of the administrative remedies available under the administrative

scheme set forth in the Medical Practice Act was therefore futile. We disagree.

We initially note that the Maryland Uniform Declaratory Judgments Act, Md. Code

(1973, 2006 Repl. Vol.), § 3-401 et seq. of the Courts and Judicial Proceedings Article

(“CJP”), provides that the exhaustion of administrative remedies doctrine applies in the

declaratory judgment context. CJP § 3-409(b) (providing that, “[i]f a statute provides a

special form of remedy for a specific type of case, that statutory remedy shall be followed

in lieu of a proceeding under this subtitle”).

Turning to appellant’s allegation that the Board lacked jurisdiction to entertain her

claim, the Court of Appeals has made clear that an agency is without jurisdiction “only where

it lacks a clear authority to adjudicate a given class of claims.” Heery Int’l, Inc. v.

Montgomery County, 384 Md. 129, 144 (2004) (citing State Comm’n on Human Relations

v. Freedom Express/Domegold, Inc., 375 Md. 2, 19-20 (2003)). “Therefore, a party wishing

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to circumvent the administrative process must demonstrate that an agency is operating

indisputably beyond its authority, and distinctly outside its fundamental jurisdiction.” Id. at

144-45 (citing as an example a probate court, invested only with authority over wills and

estates, attempting to try a person for a criminal offense).

Applying that law to the facts of the case at bar, it is clear that the Board was not

operating beyond its authority or outside its jurisdiction. The Medical Practice Act

authorizes the Board to investigate and charge physicians suspected of standard of care

violations, and sets forth a detailed and comprehensive administrative process that the Board

must follow in doing so. Thus, appellant’s allegation that the Board violated the peer review

provisions of the Act—even if proven to be true—does not deprive the Board of its

jurisdiction to investigate whether appellant violated the Act’s standard of care provisions.

Appellant’s argument that the exhaustion of administrative remedies doctrine does not

apply because the administrative process does not provide an adequate remedy to address her

constitutional claims is also without merit. Appellant claims due process violations arising

out of the lack of guidelines governing the peer review process, the peer reviewers’ lack of

qualifications, and Dr. Sandson’s alleged conflict of interest. Appellant cites the

Administrative Procedure Act, Md. Code (1984, 2004 Repl. Vol.), § 10-101 et seq. of the

State Government Article, and the Code of Maryland Regulations as limiting the authority

of the Office of Administrative Hearings to hear and rule on peer review challenges because

its jurisdiction does not attach until charges are brought. We disagree.

HO § 14-405(g) provides that “[t]he hearing of charges may not be stayed or

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challenged by any procedural defects alleged to have occurred prior to the filing of charges.”

Furthermore, the Court of Appeals has succinctly stated that “questions, including

Constitutional issues, that could have been but were not presented to the administrative

agency may not ordinarily be raised for the first time in an action for judicial review.” Bd.

of Physician Quality Assur. v. Levitsky, 353 Md. 188, 207-08 (1999). The Court in Levitsky

therefore made clear that challenges such as the ones appellant now raises before us must

first be raised in an administrative hearing in order to be preserved for judicial review.

The Levitsky Court did provide one exception to the rule, explaining that,

[t]o the extent that deficiencies or irregularities in the pre-charge proceedings
actually compromise the accused’s opportunity for a full and fair hearing on
the charges . . . or suffice in some way to deprive the agency (or court) of true
jurisdiction to proceed, the accused is necessarily entitled, and must be
allowed, to raise those deficiencies or irregularities, notwithstanding [HO § 14-
405(g)]. Beyond that, however, [HO § 14-405(g)] means what it says and
must be given effect.

Id. at 206. In other words, an alleged constitutional violation alone is not sufficient to

sidestep the administrative process set forth in the Medical Practice Act and proceed directly

to the courts. Rather, the alleged violation must actually compromise the accused’s

opportunity for a fair hearing such that exhausting the administrative remedies would be

futile.

We are not persuaded that appellant was denied her right to a full and fair

administrative hearing, constitutional claims notwithstanding. The contract between the

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Board and the Society contains specific guidelines regulating the peer review process.3 That

contract also includes the qualifications required of peer reviewers, which, contrary to

appellant’s argument, do not require that peer reviewers employ the same particular type of

treatment as the investigated physician. That contract also includes provisions assuring

against conflicts of interest between peer reviewers and investigated physicians.4

In short, even assuming, arguendo, that appellant’s due process rights were violated,

we are not convinced that appellant could not fairly argue those alleged constitutional

violations within the administrative scheme set forth in the Medical Practice Act. Indeed,

if appellant were unsatisfied with the outcome of that administrative process, she was entitled

to further judicial review. Consequently, we hold that there is no prohibition against an

administrative law judge hearing and ruling upon the three specific peer review issues raised

by appellant, and it was therefore not futile for appellant to exhaust her administrative

remedies.

II.

3 Those guidelines include the method by which peer reviewers must complete their
reports and the content that is required therein, which includes a demonstration by the
reviewer of knowledge of the medical treatment at issue, a statement of the standard of care
required under the circumstances, and a statement and explanation of whether that standard
was met.

4 Those provisions prohibit the use of peer reviewers who are a relative, personal
friend, business partner, supervisor, or employee of either the patient or the investigated
physician. They also prohibit peer reviewers who have a substantial business relationship
with the investigated physician whether through a legal relationship or a pattern of referrals,
and require each peer reviewer to declare in writing that no relationship exists which would
interfere with his or her objective judgment.

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Appellant argues that it is unclear whether the court dismissed appellant’s action

pursuant to two sections of the Medical Practice Act, namely HO §§ 14-405(g) and 14-401

(e)(5), but if it did, it did so erroneously. Appellant claims that both of those statutes are

“anti-injunction statutes aimed at staying a disciplinary hearing in progress,” and are

therefore inapplicable because, at the time appellant brought her action, no hearing was in

progress. Appellant further argues that HO § 14-401(e)(5), a statute which does not provide

for retroactive application, is not applicable to her action because it was enacted in June

2007, several months after she filed her action in April 2007. We disagree.

HO § 14-405(g) provides that “[t]he hearing of charges may not be stayed or

challenged by any procedural defects alleged to have occurred prior to the filing of charges.”

HO § 14-401(e)(5) provides that “[t]he hearing of charges may not be stayed or challenged

because of the selection of peer reviewers under this subsection before the filing of charges.”

While the circuit court did not expressly identify “the rules and regulations” that

barred appellant’s bypass of the administrative process, taken in the context of the

memoranda and oral argument before it at the time of its ruling, there can be no doubt that

the court was referring to HO § 14-405(g) and/or HO § 14-401(e)(5). Moreover, “we

presume judges to know the law and apply it, even in the absence of a verbal indication of

having considered it.” Wagner v. Wagner, 109 Md. App. 1, 50, cert. denied, 343 Md. 334

(1996). Indeed, “trial judges are not obliged to spell out in words every thought and step of

logic.” Aventis Pasteur, Inc. v. Skevofilax, 396 Md. 405, 426 (2007) (citation omitted).

Appellant cites no authority, nor could we find any, for her argument that HO §§ 14-

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405(g) and 14-401(e)(5) should be construed to allow interruption of the investigatory stage.

As we have already noted, the Court of Appeals has explained that HO § 14-405(g) “means

what it says and must be given effect.” Levitsky, 353 Md. at 206. The Levitsky Court

therefore construed HO § 14-405(g) narrowly, and only allowed for deviation from that

statute’s prohibition of pre-charge interruption when the accused’s rights to a fair

administrative hearing are compromised. Id. We have already concluded, however, that no

such compromise existed under the facts of the case before us. Thus, we conclude that the

court did not err in dismissing appellant’s claim under HO § 14-405(g).

Because we hold that the court did not err in dismissing appellant’s case pursuant to

HO § 14-405(g), we need not consider whether the court erred in relying upon HO § 14-

401(e)(5).

III.

Appellant argues that the court erred in dismissing her action as not ripe under 42

U.S.C. § 1983. We disagree.

In Broadcast Equities, Inc. v. Montgomery County, 123 Md. App. 363 (1998), vacated

and remanded on other grounds, 360 Md. 438 (2000), we dealt with a similar issue. In that

case, the Montgomery County Commission on Human Relations issued a written

determination that reasonable grounds existed to believe that Broadcast Equities had

unlawfully discriminated against a former employee. Id. at 373. The Commission scheduled

a hearing on the matter, and Broadcast Equities filed suit to enjoin the hearing pursuant to

42 U.S.C. § 1983 on the grounds that enforcement of the county code violated its due process

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rights. Id. at 373-74. We held that “the Commission’s decision that reasonable grounds exist

to believe that [Broadcast Equities] violated the County Code is not ‘final,’ and thus not ripe

for review.” Id. at 404. Citing earlier precedent, we reiterated:

The administrative process would come to a standstill if parties that are the
subject of agency investigations could file parallel lawsuits seeking to
adjudicate an issue that is before the agency. As a matter of administrative
law, and as a matter of equity, a government agency needs to be able to do its
work. There would scarcely be a purpose for an agency . . . if a party involved
in a proceeding before the agency could make an “end run” around it by
obtaining judicial adjudication of the same issues that are then pending before
the agency.

Id. at 405 (quoting Maryland Comm’n on Human Relations v. Downey Commc’ns, Inc., 110

Md. App. 493, 524-25 (1996)).

In the case at bar, appellant filed her claim after the peer review process had

concluded but before the Board had decided whether to file charges. As in Broadcast

Equities, the Board’s decision to investigate appellant and conduct peer reviews pursuant to

the Medical Practice Act was not a “final” decision. Levitsky, 353 Md. at 206 (explaining

that “[t]he peer review panel does not determine whether the accused physician or attorney

is ‘guilty’ of anything, only whether there is a sufficient basis for the filing of charges”).

Consequently, we conclude that the court did not err in dismissing appellant’s claim on the

grounds that her 42 U.S.C. § 1983 claim was not ripe.5,6

5 Although we need not rely upon it to affirm the circuit court’s dismissal of
appellant’s 42 U.S.C. § 1983 claim, we note that an alternative ground on which the court
could have relied is appellant’s lack of an injury to a requisite property interest insofar as the
Board had neither filed charges nor revoked her medical license at the time she filed her
action. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005) (stating that the “Due Process

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JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.

Clause protects persons against deprivations of life, liberty, or property[,] and those who seek
to invoke its procedural protection must establish that one of these interests is at stake”).

6 Because we affirm the court’s dismissal of appellant’s complaint, appellant’s Notice
of Appeal dated December 12, 2007, regarding the discovery orders of the circuit court, is
moot. Therefore, we need not address Society Appellees’ motion to dismiss it.

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Leon v. Hosp. Metropolitano

EMTALA

Leon v. Hosp. Metropolitano, No. 05-1887
(RLA) (D.P.R. Feb. 6, 2007)

The
United States District Court for the District of Puerto Rico held that
emergency room patients could not sue treating physicians or their professional
corporations under EMTALA, but could bring an action against the hospital.
A patient presented to the emergency room of a hospital complaining of shortness
of breath and abdominal pain. After receiving some treatment, the patient was
transferred to another hospital where she died of complications. The patient’s
estate sought to hold the hospital’s emergency room physicians and the hospital
liable under EMTALA for failure to give an appropriate medical screening
and stabilization. The district court dismissed the claims against the
physicians, on the basis that EMTALA imposes a duty to screen and stabilize
on hospitals and not on individual physicians. However, the court allowed the
estate’s EMTALA claim against the hospital to proceed, finding that material
issues of fact remained with regard to the screening and stabilization policies
in the emergency room.

 

Lee-Bloem v. State of Maryland (Summary)

LICENSURE – EXHAUSTION OF REMEDIES

Lee-Bloem v. State of Maryland, No. 2227 (Md. Ct. Spec. App. Dec. 4, 2008)

The Maryland Court of Special Appeals affirmed a circuit court decision, which granted the state motion to dismiss filed by the state of Maryland defendants, in a suit by a psychiatrist who sought a declaratory judgment and permanent injunction against any further proceeding by the Maryland Board of Physicians ("Board").

After it was alleged that a psychiatrist practiced substandard medicine, a peer review investigation ensued by the Board. The Board referred the matter to the Maryland Psychiatric Association, a nonprofit entity with which the Board contracted for peer reviews. After the peer review meeting, but before the Board took any disciplinary action, the psychiatrist sought a declaratory judgment and a permanent injunction against the Board.

The circuit court dismissed the psychiatrist’s actions because she failed to exhaust her administrative remedies. The special appeals court affirmed the dismissal, concluding that, "the administrative process would come to a standstill if parties that are the subject of agency investigations could file parallel lawsuits seeking to adjudicate an issue that is before the agency."

 

 

Lerner v. D.C.

EMPLOYMENT – RETALIATORY

Lerner v. D.C., 362 F.Supp.2d 149 (D.D.C. Mar.
4, 2005)

A psychologist employed in a District of Columbia mental hospital
filed an action against the District and various hospital officials under
the District’s Whistleblower Act and federal civil rights laws. The psychologist
alleged she was the victim of retaliation after she recommended a conditional
release for a patient who had attempted to assassinate President Reagan in
1981. The District and hospital officials sought summary judgment claiming,
among other things, that they were entitled to qualified immunity, they had
failed to receive notice, and that the statute of limitations had expired.
The United States District Court, District of Columbia, denied summary judgment,
finding these affirmative defenses had been waived when the District and
hospital officials failed to plead them in their previous motions to dismiss
or in their answer to the complaint.

 

Lees v. Asante Health Sys.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

M.D. BONNIE J. LEES,

Plaintiff,

No. CV 04-1804-MO

v.

ORDER

ASANTE HEALTH SYSTEMS, et al.,

Defendants.

MOSMAN, J.,

Before the court are defendants’ motions for summary judgment. Defendants argue they

are immune from liability on all counts of plaintiff’s complaint under the Federal Health Care

Quality Improvement Act (“HCQIA”) (42 U.S.C. §§ 11101-11152). At the oral argument on

October 14, 2005, the court reserved judgment as to whether the defendants’ conduct on April 7,

2003, and February 16, 2004, constituted “actions” subject to the due process requirements of 42

U.S.C. § 11112(a). For the reasons set forth below, the court finds that the April 7, 2003, Notice

of Adverse Action constitutes an “action” for which defendants are not entitled to immunity

because it was not taken after a reasonable effort to obtain the facts of the matter.

I.

Summary Judgment Standard

Section 11112(a) of the HCQIA creates a reable presumption that the professional

review action in question meets the requirements necessary for § 11111(a) immunity. 42 U.S.C.

§ 11112(a). Thus, the statute modifies and creates a somewhat unusual standard for summary

judgment: “Might a reasonable jury, viewing the facts in the best light for [the plaintiff],

conclude that he has shown, by a preponderance of the evidence, that the defendants’ actions are

PAGE 1 – ORDER

outside the scope of § 11112(a)?” Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992).

II.

HCQIA Immunity

Under the HCQIA, a peer review participant is immune from private damages claims

associated with the peer review action, provided that the review action is 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. § 11112(a). The court held that plaintiff did not show, by a preponderance of the

evidence, that defendants’ actions are outside the scope of prongs (1), (3) or (4). In other words,

Asante Health Systems (“Asante”) did act in the reasonable belief that the action was in

furtherance of quality health care and adequate notice and hearing procedures were afforded to

plaintiff. In particular, the court found that it was reasonable for the hospital Board to be

concerned with a physician’s disruptive behavior, and this could even be the sole reason for

believing an action furthered quality health care.

The court reserved judgment on prong (2), action taken “after a reasonable effort to

obtain the facts.” Resolving this issue turns on how “action” is defined, and in this case, whether

PAGE 2 – ORDER

there are “actions” other than the August 27, 2003, Notice of Adverse Action that are subject to

the requirement of being taken “after a reasonable effort to obtain the facts.” Complicating the

analysis is the fact that plaintiff’s hospital privileges automatically lapsed on June 30, 2002,

during the process leading up to the ultimate denial of her hospital privileges.

A “professional review action” is defined broadly as:

an action or recommendation of a professional review body which
is taken or made in the conduct of professional review activity,
which is based on the competence or professional conduct of an
individual physician (which conduct affects or could affect
adversely the health or welfare of a patient or patients), and which
affects (or may affect) adversely the clinical privileges, or
membership in a professional society, of the physician. Such term
includes . . . professional review activities relating to a
professional review action.

42 U.S.C. § 11151(9). In contrast, a “professional review activity” is defined as:

an activity of a health care entity concerning a particular 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.

42 U.S.C. § 11151(10).

The April 7, 2003, Notice of Adverse Action is an “action” as that term is defined by the

HCQIA. The Notice informs plaintiff that the Board revoked her medical privileges and

reappointment to the medical staff at Rogue Valley Medical Center (“RVMC”). This constitutes

“an action or recommendation of a professional review body . . . which is based on the

competence or professional conduct of an individual physician” which affected or may have

PAGE 3 – ORDER

affected adversely plaintiff’s clinical privileges. Nothing in the statutory language or in the

caselaw suggests that events subsequent to April 7, 2003, such as the Fair Hearing Committee

(“FHC”) process, operate to make this Notice of Adverse Action something other than an

“action.” This does not mean that an event can never be taken out of being classified as an

“action” by subsequent events. An “action,” for example, that is automatically stayed or nullified

by an appeals process, might not retain its status as an action pending appeal. See, e.g.,

Gabaldoni v. Wash. County Hosp. Assoc., 250 F.3d 255, 262-263 (4th Cir. 2001) (Board did not

take “action” until it voted on physician’s privileges after reviewing the Hearing Committee

findings regarding the Board’s initial vote to terminate physician’s privileges). But nothing like

that happened here.

Additionally, the fact that plaintiff’s privileges had already lapsed by April 7, 2003, does

not somehow remove it from the category of “action.” This April 7, 2003, Notice of Adverse

Action, independent of the preceding lapse, “affect[ed] (or may affect) adversely [plaintiff’s]

clinical privileges” and her ability to practice medicine at RVMC. As such, it satisfies the

statutory definition of “action.”

Having concluded that the April 7, 2003, Notice of Adverse Action constitutes an

“action,” the court must next analyze the defendants’ entitlement to HCQIA immunity by

examining defendants’ compliance with the four due process elements enumerated by 42 U.S.C.

§ 11112(a). On the first prong, defendants took this action based primarily on plaintiff’s

disruptive behavior and this satisfies the requirement that the action be taken in the reasonable

belief that it is in furtherance of quality health care. On the second prong, viewing the facts in

the light most favorable to the plaintiff, a reasonable jury might conclude that she has shown by

PAGE 4 – ORDER

a preponderance of the evidence that defendants did not take this action after a “reasonable effort

to obtain the facts.” Significantly, the FHC report from August 2003 rejected the Board’s April

decision on the grounds that the evidence considered by the Board was too one-sided. The FHC

found that “the evidence presented by the administration to the MEC and the Asante Board in the

deliberations prior to the filing of the adverse action failed to equally recognize the considerable

body of support for Dr. Lees.” Def.’s Mot. Summ. J., Ex. 36 at 4.

The court’s own analysis is in agreement with the conclusions of the FHC. Defendants

issued the April 7, 2003, Notice of Adverse Action without having undertaken a reasonable

effort to obtain the facts. Thus, defendants are not entitled to HCQIA immunity from damages

insofar as the April 7, 2003, “action” is concerned. Accordingly, the court denies defendants’

motion for summary judgment regarding the April 7, 2003, action.

Finally, the court must decide whether the Board’s February 16, 2004, rejection of

plaintiff’s application for privileges is a “professional review action.” This wholesale rejection of

privileges occurred shortly after the Appellate Review Committee recommended that the Board

affirm it’s August 27, 2003, eight tenet conditional reappointment. As such, this seems to be part

of the same overall decision to limit plaintiff’s privileges, but is largely different in the degree to

which they were limited – 8 tenet conditional versus complete denial. Because of its impact on

her privileges, the Board’s February 16, 2004, revocation best classified as a “professional

review action.” The court finds, however, that defendants satisfied the HCQIA due process

requirements and thus are entitled to immunity. Given that the February 2004 decision took

place after the FHC hearing, this decision meets the first and second prongs of HCQIA immunity

as it was made in furtherance of quality health care and after a reasonable effort to obtain the

PAGE 5 – ORDER

facts. As to the third prong requiring adequate notice and hearing, although the February 2004

decision, taken in isolation, was abrupt, plaintiff has failed to meet the heightened standard to

survive summary judgment by overcoming the presumption that Asante met the requirements of

HCQIA immunity. Plaintiff was afforded a Fair Hearing, and an Appellate Review Committee

heard her appeal. The fact that the Board’s ultimate rejection of her application for privileges

was a more extreme action than recommended by the Appellate Review Committee does not

render it unfair under the circumstances. Therefore, the court grants defendants’ motion for

summary judgment regarding the February 16, 2004, denial of privileges.

Because the court already determined that the defendants are entitled to HCQIA

immunity as to the August 27, 2003, action, the court grants defendants’ motion for summary

judgment as to that action. The court denies defendants’ motion for summary judgment

regarding the April 7, 2003, Notice of Adverse Action. Defendants’ motions for summary

judgment (#21 and #27) are GRANTED in part and DENIED in part.

IT IS SO ORDERED.

DATED this 22nd day of November, 2005.

/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Judge

PAGE 6 – ORDER

Lesley v. Hee Man Chie

United States Court of Appeals

For the First Circuit

---

No. 00-1254

VICKIE LESLEY,

Plaintiff, Appellant,

v.

HEE MAN CHIE, M.D.,

Defendant, Appellee.

---

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

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Before

Torruella, Chief Judge,

Lynch and Lipez, Circuit Judges.

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Bennett H. Klein, with whom Gay & Lesbian Advocates & Defenders
was on brief, for appellant.

Charles B. Straus, III, with whom Robert V. Deiana and Mirick,
O’Connell, DeMallie & Lougee were on brief, for appellee.

Donna E. Levin, General Counsel, Special Assistant Attorney
General, and Edmund J. Sullivan, Deputy General Counsel, on brief for
Department of Public Health of the Commonwealth of Massachusetts,
amicus curiae.

Carl Valvo and Cosgrove, Eisenberg and Kiley, P.C. on brief for
Massachusetts Medical Society and Professional Liability Foundation,
Ltd., amici curiae.

May 22, 2001

LYNCH, Circuit Judge. Dr. Hee Man Chie, an obstetrician-gynecologist, treated Vickie Lesley during her pregnancy in 1994 and
1995. After Lesley tested positive for HIV, Dr. Chie ended up
referring her to another hospital that, in his judgment, was better
qualified to handle deliveries by HIV-positive patients. The baby was
delivered there, safely and without HIV infection.

Two years later, Lesley sued Dr. Chie for damages. The gist
of her suit is that Dr. Chie denied her treatment solely because she
was HIV-positive, in violation of various disability discrimination
laws. The district court entered summary judgment in favor of Dr.
Chie, from which Lesley appeals. Lesley v. Chie, 81 F. Supp. 2d 217
(D. Mass. 2000). The case requires us to determine how far courts
should defer to a doctor’s judgment as to the best course of treatment
for a disabled patient in the context of discriminatory denial of
treatment claims. We hold that the doctor’s judgment is to be given
deference absent a showing by the plaintiff that the judgment lacked
any reasonable medical basis. Applying this standard to the case, we
affirm.

I.

The following facts are undisputed.

Vickie Lesley became pregnant in late 1994. In December, she
began seeing obstetrician-gynecologist Hee Man Chie for prenatal care.
Dr. Chie had been Lesley’s gynecologist since 1982. He had admitting
privileges at Leominster Hospital, a community hospital in Leominster,
Massachusetts, where Lesley lived.

Lesley advised Dr. Chie of several preexisting medical
conditions. She had diabetes insipidus, a seizure disorder, and a
history of cervical dysplasia. She also suffered from manic depression,
for which she took lithium. Because lithium increases the risk of
fetal heart abnormalities, Dr. Chie ordered a fetal echocardiogram in
early March 1995. He also recommended, as he did routinely for his
patients, that Lesley be tested for Human Immunodeficiency Virus (HIV),
the virus that causes AIDS. Lesley tested positive for HIV.

While Dr. Chie had treated patients with HIV in his
gynecological practice, he had never delivered the baby of a woman with
HIV. Thus, before Lesley’s appointment to discuss her test results,
Dr. Chie inquired about the proper treatment for pregnant women with
HIV.

About a year earlier, in February 1994, the National
Institutes of Health (NIH) had sponsored a clinical trial to administer
the drug AZT to pregnant women with HIV. The trial had three
components. Women took AZT orally during pregnancy; they then received
it intravenously during labor and delivery; and after birth, the
newborn was given AZT syrup. According to the results of the trial,
the three-part treatment reduced the risk of transmitting HIV to
newborns from 25.5 percent to 8.3 percent. Based on this success rate,
the United States Public Health Service published guidelines for
administering AZT during pregnancy in August 1994.

In November 1994, the Massachusetts Department of Public
Health (MDPH) mailed a Clinical Advisory to all obstetricians in the
state. The Clinical Advisory reproduced the U.S. Public Health Service
guidelines for AZT treatment, including a fixed dosage schedule for
oral and intravenous administration. The advisory also urged doctors
to discuss the treatment with their patients. In an amicus brief,⁽¹⁾ the
MDPH states: “It was the Department of Public Health’s intent when it
issued the Clinical Advisory that these established steps to prescribe
and monitor AZT be immediately implemented by any licensed
obstetrician, including community obstetricians such as Dr. Chie.” The
test for monitoring AZT’s side effects is a complete blood count and
liver function test. According to the MDPH: “These two blood tests are
regularly used by obstetrician/gynecologists as part of prenatal care.”
Dr. Chie in fact used the same tests to monitor the side effects of
Lesley’s anti-depressant medication.

At his deposition, Dr. Chie said that he read the MDPH
Clinical Advisory when he received it in late 1994. Subsequently,
after learning that Lesley had tested positive for HIV, he called the
Leominster Hospital pharmacy to determine whether AZT was available for
delivery, as the Clinical Advisory recommended. The Advisory states:
“Consultation with the hospital pharmacist regarding ZDV [AZT]
availability and drug preparations should be done prior to any
projected need to avoid delay in initiating any part of this protocol.”
The pharmacy told Dr. Chie that AZT was not yet available, and that he
would have to call Leominster’s Pharmaceutics & Therapy (P & T)
Committee to get the drug approved. Dr. Chie also called Sheila Noone,
a nurse who coordinated the Women and Infants HIV Program at Worcester
Memorial Hospital. The HIV Program had been one of eight facilities
nationwide to participate in the 1994 NIH clinical trial of AZT and
served as a clinic for pregnant women with HIV, operating in
conjunction with the University of Massachusetts Medical Center, an
academic teaching hospital. Nurse Noone discussed AZT treatment with
Dr. Chie, and told him that he could either consult with her about
Lesley’s case, or enroll Lesley in Worcester Memorial’s HIV Program so
that she could deliver her baby there.

On March 20, 1995, Lesley and her husband met with Dr. Chie.
The doctor told them about the HIV Program at Worcester Memorial and
gave them Nurse Noone’s name and telephone number. Dr. Chie told
Lesley he had no experience administering AZT. Lesley expressed
confidence in his abilities and made a follow-up appointment for March
30. In the interim, she met with Nurse Noone and signed up for
counseling and other support services offered by the HIV Program, but
planned to continue her prenatal care with Dr. Chie and to deliver her
baby at Leominster.

Before the follow-up appointment, Dr. Chie contacted Dr.
Man, chairman of Leominster’s P & T Committee, and asked for AZT to be
made available at the hospital pharmacy and for a protocol to be put in
place for administering the drug intravenously at labor and delivery.
Such a protocol would have included notifying physicians that AZT was
available for use during pregnancy and delivery, and giving nurses in-service training on the procedures for administering the drug. Dr. Man
assured Dr. Chie that he would bring up approval of a protocol at the
next P & T Committee meeting.

Dr. Chie also spoke to other obstetricians at Leominster,
including the head of the obstetrics-gynecology department, Dr. Schatz.
None of the doctors with whom Dr. Chie spoke had experience with HIV
pregnancies or administering AZT. Dr. Schatz advised Dr. Chie to
consult with a high-risk perinatologist at Worcester Memorial about
Lesley, although he did not specifically recommend that she be
transferred. Dr. Chie also called Lesley’s primary care doctor, Dr.
Fraser, explained the situation to him, and told Dr. Fraser that, while
he had not made up his mind, he probably would have to transfer Lesley
to Worcester Memorial, and in such case he would need Dr. Fraser’s
approval. Around this same time, Dr. Chie spoke further with Nurse
Noone, who again offered either to serve as a consultant to Dr. Chie in
treating Lesley or to help him arrange for a transfer.

On March 30, Dr. Chie called the Leominster pharmacy again
to inquire whether AZT had been made available. The pharmacy reported
that it was still awaiting approval for the drug from the P & T
Committee.⁽²⁾

At Lesley’s March 30 appointment, Dr. Chie told her he had
decided to transfer her case to Worcester Memorial’s HIV Program. Dr.
Chie’s March 30 notes for Lesley’s chart state: “Discussed with
[patient] AZT program at UMass. No AZT program at L Hosp. Plan:
Transfer patient to UMHosp.” Dr. Chie said of his explanation to
Lesley:

I told her . . . We don’t have AZT program at
Leominster Hospital. . . . I told her I’d talk
to other obstetrician[s], including Dr. Schatz,
and if anybody have experience; but none of them
has experience using the AZT. I was looking for
help. I have no — I looked through all the
books. I learn everything myself. . . . I have
no experience using the AZT, and I have no
confidence of using the AZT myself. But . . .
there’s a program in Worcester, Sheila Noone,
give us some report about how good the result
after the trial of those AZT medications. With
that convincing result, I — I sent her to the
AZT program.

In response, Lesley told Dr. Chie that she wanted to remain
under his care and to give birth at Leominster because it was her
community hospital. Lesley, herself a trained psychiatric nurse, said
that all she needed for treatment was a prescription for oral AZT, and
an IV line for administering the drug during labor and delivery. She
urged Dr. Chie to consult with Nurse Noone at the HIV Program and to
get AZT approved at Leominster. Dr. Chie refused to continue treating
Lesley.

Lesley went to the HIV Program at Worcester Memorial for her
remaining prenatal visits. Worcester Memorial is located about 45
minutes by car from Leominster Hospital and from Lesley’s home. She
delivered her baby there on July 10, 1995, five weeks before her due
date. Lesley acknowledges that she received satisfactory care from the
HIV Program. Her baby tested negative for HIV at birth and in follow-up tests.

II.

On March 19, 1997, Lesley filed a complaint in the
Massachusetts Superior Court against Dr. Chie, stating that his
decision to transfer her to the HIV Program at Worcester Memorial
rather than treat her himself violated her rights under ? 504 of the
Rehabilitation Act, the Americans with Disabilities Act (ADA), and the
Massachusetts Public Accommodation Statute, Mass. Gen. Laws ch. 272 ?
98. Dr. Chie removed the action to federal court on April 21. On June
25, the parties stipulated to dismissal of Lesley’s ADA claim.

In support of their cross-motions for summary judgment on the
remaining claims, both Lesley and Dr. Chie presented expert testimony.
Lesley’s expert, Dr. Howard Minkoff, served on the U.S. Public Health
Service task force that recommended AZT therapy for pregnant women with
HIV. In his sworn statement, Dr. Minkoff said administering oral and
intravenous AZT during pregnancy and delivery was “straightforward” and
did not require “specialized knowledge beyond that possessed by a
licensed practitioner of obstetrics.” In Dr. Minkoff’s opinion,
“[t]here is no medical basis for a licensed practitioner of obstetrics
to refer an HIV-positive pregnant woman to a high risk clinic . . .
based on HIV-positive status alone.” In its amicus brief, the MDPH
states its agreement with Dr. Minkoff’s conclusions.⁽³⁾

In support of Dr. Chie, Dr. Bruce Cohen, a specialist in
high-risk obstetrics, focused on Lesley’s complex combination of
psychiatric and medical problems. Dr. Cohen said: “To have denied such
a complicated and high risk patient as Mrs. Lesley the available
quality care which the situation demanded would have been unethical.”
Dr. Bonnie Herr, a community-based obstetrician, said that at the time
Dr. Chie transferred Lesley, “knowledge and experience in the
management of HIV-positive pregnant patients among obstetrician-gynecologists in the general medical community (i.e., outside of
teaching centers) was limited.” Dr. Howard Heller, an associate
physician at Brigham & Women’s Hospital, agreed that after publication
of the MDPH Clinical Advisory in November 1994, it took several months
for most hospitals and obstetricians to institute and implement AZT
treatment “since it required a coordinated effort within each hospital
and was not under the control of an individual obstetrician.” Because
of the “many components” involved in AZT treatment, and the lack of
assurance that these components would be in place at Leominster in time
for Lesley’s labor and delivery, it would have been “medically
inappropriate” for Dr. Chie to continue treating Lesley, Dr. Heller
said.

On January 7, 2000, on cross-motions from the parties, the
district court granted summary judgment for Dr. Chie. The court found
that Lesley had presented no evidence that Dr. Chie’s decision to
transfer Lesley to Worcester Memorial’s HIV Program was medically
inappropriate under the totality of the circumstances. Hence the court
found that the doctor’s decision did not constitute discrimination
solely on the basis of HIV status.

III.

Our review of the district court’s summary judgment
determination is de novo. Equal Employment Opportunity Comm’n v.
Amego, Inc., 110 F.3d 135, 141 (1st Cir. 1997).

We dispose of some preliminaries. Section 504 of the
Rehabilitation Act provides that:

No otherwise qualified individual with a disability . . .
shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits
of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance . . . .

29 U.S.C. ? 794(a). Thus, to prevail on her ? 504 claim, Lesley must
prove four elements. She must show (1) that she is disabled; (2) that
she sought services from a federally funded entity; (3) that she was
“otherwise qualified” to receive those services; and (4) that she was
denied those services “solely by reason of her . . . disability.”

The parties do not dispute the first two elements. Lesley’s
HIV-positive status is a disability for purposes of the Act. Bragdon
v. Abbott, 454 U.S. 624, 631 (1998). Dr. Chie’s receipt of Medicaid
funds makes him a federally funded entity for purposes of the Act. See
Lesley, 81 F. Supp. 2d at 222-23. The parties do dispute the third
element, whether Lesley was “otherwise qualified” to receive the
services she sought. But we do not address this issue,⁽⁴⁾ as we resolve
the case based on the fourth element.

The essential question is whether plaintiff’s evidence
presents a triable issue as to whether she was denied treatment “solely
by reason of her disability.” Lesley characterizes Dr. Chie’s decision
to transfer her as a discriminatory act cloaked as an exercise of
medical judgment. She argues that the testimony of her experts
demonstrates that Dr. Chie was perfectly competent to treat her,
implying that the claimed medical basis for his decision was
pretextual. In mirror fashion, Dr. Chie characterizes Lesley’s suit as
an attack on his medical judgment, thinly veiled as a disability
discrimination claim. He argues that the Rehabilitation Act was never
intended to interfere with bona fide medical judgments as to how best
to treat a patient with a disability. Thus, this case requires us to
explore the extent to which the Rehabilitation Act contemplates
judicial scrutiny of alleged exercises of medical judgment.⁽⁵⁾

We start with the obvious: the Rehabilitation Act does not
bar a doctor from referring a disabled patient elsewhere simply because
the medical reasons for the referral are related to the patient’s
disability. It would be nonsensical, and downright contrary to the
purposes of the statute, to read the statute’s “solely because of”
language to prohibit medical treatment that is appropriate “solely
because of” a patient’s disability.⁽⁶⁾ As Congress made clear in the
legislative history of the Americans with Disabilities Act, the
disability laws are not intended to prevent a physician from referring
a disabled patient “if the disability itself creates specialized
complications for the patient’s health which the [referring] physician
lacks the experience or knowledge to address.” H.R. Rep. No. 101-485,
pt. 2, at 106 (1990), reprinted in 1990 U.S.C.C.A.N. 267, 389; see also
Katz v. City Metal Co., 87 F.3d 26, 31 n.4 (1st Cir. 1996) (Section 504
of the Rehabilitation Act “is interpreted substantially identically to
the ADA”).

What is not as clear, and what is at issue in this case, is
the extent to which a court should defer to a physician’s claim that he
lacks the experience, knowledge, or other prerequisites necessary to
address the medical conditions that allegedly prompted his referral.
Two countervailing concerns bear on the question.

On the one hand, courts cannot simply defer unquestioningly
to a physician’s subjective judgment as to whether his referral was
proper. Physicians, of course, are just as capable as any other
recipient of federal funds of discriminating against the disabled, and
courts may not turn a blind eye to the possibility that a supposed
exercise of medical judgment may mask discriminatory motives or
stereotypes. See Glanz v. Vernick, 756 F. Supp. 632, 638 (D. Mass.
1991) (“A strict rule of deference would enable doctors to offer merely
pretextual medical opinions to cover up discriminatory decisions.”);
cf. Cook v. Rhode Island, 10 F.3d 17, 26-27 (1st Cir. 1993) (employer’s
subjective judgment that disabled plaintiff was not qualified for job
insufficient to thwart liability).

On the other hand, courts should not probe so far into a
doctor’s referral decision as to inquire whether it was the correct or
best decision under the circumstances, or even whether it met the
standard of care for the profession. Lest questions of medical
propriety be conflated with questions of disability discrimination, it
must take more than a mere negligent referral to constitute a
Rehabilitation Act violation. Were the Act construed otherwise, so as
effectively to impose on physicians a special, disability-centric duty
of care, physicians would face potentially conflicting state and
federal legal obligations. That is, to avoid state malpractice
liability, a physician might wish to err on the side of caution by
referring a patient with disability-related complications to a better
qualified specialist or more advanced facility; yet under the
Rehabilitation Act, as hypothetically construed, the physician who did
so would risk being found liable for discrimination. We cannot believe
that Congress would have intended the Act to so interfere with the
doctor-patient relationship, especially when that relationship is
thoroughly regulated by the states.⁽⁷⁾ Cf. Bowen v. Am. Hosp. Assoc.,
476 U.S. 610, 643 (1986) (Rehabilitation Act does not “envision[]
federal superintendence of treatment decisions traditionally entrusted
to state governance”); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.
1996) (“The ADA does not create a remedy for medical malpractice.”).⁽⁸⁾

Avoiding both a rule giving physicians complete deference and
a rule requiring a full-fledged inquiry into their diligence, we head
for the middle ground⁽⁹⁾ and adopt the following standard. Under the
Rehabilitation Act, a patient may challenge her doctor’s decision to
refer her elsewhere by showing the decision to be devoid of any
reasonable medical support. This is not to say, however, that the
Rehabilitation Act prohibits unreasonable medical decisions as such.
Rather, the point of considering a medical decision’s reasonableness in
this context is to determine whether the decision was unreasonable in
a way that reveals it to be discriminatory. In other words, a
plaintiff’s showing of medical unreasonableness must be framed within
some larger theory of disability discrimination. For example, a
plaintiff may argue that her physician’s decision was so unreasonable
— in the sense of being arbitrary and capricious — as to imply that
it was pretext for some discriminatory motive, such as animus, fear, or
“apathetic attitudes.” Alexander v. Choate, 469 U.S. 287, 296 (1985);
see, e.g., Howe v. Hull, 874 F. Supp. 779, 788-89 (N.D. Ohio 1994)
(under ADA, jury could find doctor’s diagnosis that plaintiff had
extremely rare disorder requiring transfer was pretextual, where
patient only had an allergic drug reaction, and doctor did not mention
the rare disorder in requesting the transfer but only mentioned
plaintiff’s HIV-status). Or, instead of arguing pretext, a plaintiff
may argue that her physician’s decision was discriminatory on its face,
because it rested on stereotypes of the disabled rather than an
individualized inquiry into the patient’s condition — and hence was
“unreasonable” in that sense. See, e.g., Sumes v. Andres, 938 F. Supp.
9, 11-12 (D.D.C. 1996) (issuing summary judgment against doctor who
refused to treat deaf patient on ground that “all deaf people are high
risk,” without making any inquiry regarding her specific condition).

Lesley does not come close to making either form of
showing.⁽¹⁰⁾ Lesley argues that Dr. Chie’s decision to transfer her was
so lacking in any reasonable medical support as to suggest it was
pretext for discrimination. But any claim that Dr. Chie sought to hide
some discriminatory motive is belied by the fact that Dr. Chie had
knowingly treated other HIV-positive patients in the past; likewise, he
continued to treat Lesley for some time after learning she was HIV-positive. See Johnson v. Thompson, 971 F.2d 1487, 1494 (10th Cir.
1992) (“If others with the same handicap do not suffer the
discrimination, then the discrimination does not result ‘solely by
reason of [the] handicap.'”).⁽¹¹⁾ Nor can Lesley plausibly claim that Dr.
Chie transferred her on the basis of stereotypes concerning her HIV-positive status. Dr. Chie did not abruptly assume that delivering the
baby of an HIV-positive patient was beyond his capability; he came to
that conclusion based upon a “fact-specific and individualized”
inquiry. Cook, 10 F.3d at 27 (quoting School Board of Nassau Cty. v.
Arline, 480 U.S. 273, 287 (1987)). Moreover, his decision was
confirmed at the time by Dr. Fraser, Lesley’s primary care physician
and managed care gatekeeper, who had to approve Lesley’s transfer; and
the decision was also confirmed by Nurse Noone, who from the start
suggested referral as a perfectly acceptable treatment option available
to Dr. Chie.⁽¹²⁾ The combination of these factors — Dr. Chie’s
demonstrated willingness to treat HIV-positive patients he felt
competent to treat, and the fact that his decision not to treat Lesley
was made pursuant to an individualized inquiry and was confirmed by
independent, knowledgeable persons at the time — makes it impossible
for Lesley to succeed in showing that Dr. Chie’s decision was
discriminatory.

Even putting aside Dr. Chie’s demonstrated willingness to
treat other HIV-positive patients, Lesley’s insistence that Dr. Chie’s
proffered medical justification for transferring her was so
unreasonable as to imply it was “pretext” does not find sufficient
support in the evidence. Lesley points to the MDPH Clinical Advisory
as evidence that the prevailing medical opinion at the time was that
any licensed obstetrician was capable of administering AZT. As proof
of the same point, she invokes the testimony of her expert, Dr.
Minkoff, in whose opinion the administration of AZT during pregnancy
and delivery does not require any specialized knowledge beyond that of
an ordinary obstetrician.

It is true that in Bragdon v. Abbott, supra, the Supreme
Court accorded “special weight and authority” to the view of public
health officials in determining whether a medical provider could
permissibly refuse to treat an HIV-positive patient, where the provider
feared for his health. See 524 U.S. at 650; see also 42 U.S.C. ?
12182(b)(3) (“Nothing [in the ADA] shall require an entity to permit an
individual to participate in or benefit from the . . . accommodations
of such entity where such individual poses a direct threat to the
health or safety of others.”). However, even in that context, the
Court emphasized that a provider’s deviation from the prevailing
medical consensus is entitled to deference so long as it rests on a
“credible scientific basis,” id., a standard substantially similar to
the one adopted here.

But more importantly, we do not believe that the Court’s
remarks in Bragdon carry over to the present context. At issue in
Bragdon was whether there existed a “direct threat” to the health of
others. The “direct threat” defense may be claimed in all sorts of
contexts — by employers, educators, and so on. In Bragdon, the Court
simply made clear that physicians have no special privilege to use the
defense as an impenetrable shield. See 524 U.S. at 649 (“[P]etitioner
receives no special deference simply because he is a health care
professional.”). By contrast, here what is at issue is not the health
of others but the health of the patient herself. That is a matter
uniquely entrusted to the care of her physician. In order to protect
the professional autonomy of the physician in administering that care,
it is necessary to defer to the physician’s reasoned judgment. A
physician’s mere disagreement with prevailing medical opinion thus
cannot serve as grounds for an inference of discrimination. Only where
the physician’s judgment is entirely without any reasonable medical
basis may such an inference be warranted.⁽¹³⁾

Lesley’s evidence of prevailing medical opinion does not
suffice to show that Dr. Chie’s decision lacked any reasonable medical
basis. The evidence proffered merely goes toward proving that in 1995,
as a general matter, a licensed obstetrician would have been competent
to administer AZT to an HIV-positive patient. However, as Bragdon
itself demonstrates, statements of prevailing medical opinion should
not be read so broadly as to sweep case-specific factors under the rug.
See 524 U.S. at 651-52 (statement advising that certain precautions
“should reduce the risk of disease transmission in the dental
environment” did not rule out possibility that additional precautions
sought by defendant could reduce risk further). While it may have been
generally true at the time that a licensed obstetrician could
administer AZT to an HIV-positive patient, nothing said by the MDPH or
Dr. Minkoff suggests that an obstetrician’s referral of such a patient
would have been inherently unreasonable.⁽¹⁴⁾

Rather, reasonableness depends on the circumstances, and here
a number of circumstances supported Dr. Chie’s judgment to transfer
Lesley elsewhere. First, despite its endorsement by the MDPH,
intravenous administration of AZT during delivery was still a recent
development in obstetrics with which Dr. Chie reasonably felt
unfamiliar; as Nurse Noone testified in deposition, “Things were
changing pretty quickly back in those days. . . . It was really — at
that point, this was all very new . . . .” Second, Dr. Chie had reason
to worry that Leominster Hospital would not be adequately prepared and
equipped to administer AZT in time for Lesley’s delivery; as of March
30, 1995, the date of Dr. Chie’s referral, when Lesley was at 20 weeks
gestation and at significant risk for premature delivery, AZT had yet
to be made available to Leominster’s pharmacy and a protocol for
administering the drug had yet to be put in place. Third, Worcester
Memorial was close by; and as one of eight clinics nationally to
participate in the study on which the MDPH Clinical Advisory was based,
it obviously could be trusted to provide Lesley a high level of care.⁽¹⁵⁾

In these circumstances, even if Dr. Chie’s decision stemmed
from an overabundance of caution, by no means can the decision be
thought to lack any reasonable medical basis. The decision was simply
a reasoned medical judgment with which the patient disagreed. As to
such disagreements, when they warrant litigation, state medical
malpractice law, not the Rehabilitation Act, provides the appropriate
law of resort. That Lesley could not possibly succeed on a medical
malpractice claim on the facts of this case speaks again to the danger
of the Rehabilitation Act being abused as an alternative frame for such
claims.⁽¹⁶⁾

We recognize the scope of the HIV epidemic and the importance
of ensuring equal access to health care for those infected with the
virus. Thus, we reiterate that a doctor cannot escape potential
liability under the Rehabilitation Act merely by casting his refusal to
treat as an exercise of medical judgment: such judgment must be the
reasoned result of an individualized inquiry. At the same time,
however, the Rehabilitation Act cannot be pressed into service as a
vehicle for disputes over the propriety of debatable treatment
decisions. And the propriety of such a decision is all we find to be
at issue in this case.

In short, no rational jury could conclude on this evidence
that Dr. Chie’s referral of Lesley to Worcester Memorial constituted
denial of treatment “solely by reason of her disability.”⁽¹⁷⁾ Summary
judgment was therefore appropriate.

Affirmed. Costs to appellees. Concurrence follows.

LIPEZ, Circuit Judge, concurring. I concur with the
result reached by the majority because I think that Dr. Chie’s
evidence shows that his decision to transfer Lesley was medically
reasonable. However, we do not have to decide in this case, as the
majority does, that a plaintiff like Lesley must show medical
unreasonableness “within some larger theory of disability
discrimination,” such as animus, fear, apathetic attitudes, or
stereotyping, to avoid a possible conflict between ? 504 of the
Rehabilitation Act and state medical malpractice law, or undue
intrusion on the doctor-patient relationship. Given the emerging
nature of disability law and the high stakes involved, we should only
decide those difficult and important issues when we must.

As the majority notes, “Lesley argues that Dr. Chie’s
decision to transfer her was so lacking in any reasonable medical
support as to suggest it was pretext for discrimination.” The
premise of Lesley’s argument is wrong simply because there is
reasonable medical support for Dr. Chie’s decision. The majority
demonstrates this point convincingly, for example by pointing to such
evidence as Leominster Hospital’s lack of an AZT protocol at the time
Lesley was transferred. Since Lesley loses on that case-specific
basis alone, there is no basis for finding pretext. Yet the majority
goes on to make the general point that a ? 504 plaintiff like Lesley
must always show that a doctor’s decision not to treat her “was
unreasonable in a way that reveals it to be discriminatory.” I
understand this rule to mean that a disabled patient has no recourse
under ? 504 when a doctor decides to transfer the patient to another
health-care provider after explicit consideration of the medical
effects of his or her disability, even if there is no reasonable
medical evidence to support the decision not to treat, unless the
absence of reasonable medical evidence permits an inference of some
discriminatory motive, such as animus, fear, or stereotyping of the
disabled.

This may be a good rule, and the majority presents the
arguments for it well. But there are also reasons for caution.
There is nothing in the language of ? 504 that dictates or even
suggests that an actionable exclusion from participation in a federal
program or an actionable denial of federal benefits may not occur
apart from a showing of discrimination. See 29 U.S.C. ? 794 (“No
otherwise qualified handicapped individual . . . shall, solely by
reason of her or his disability, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance.”). If a doctor’s decision not to treat the medical
effects of a patient’s disability, and transfer the patient
elsewhere, is based only on an unreasonable medical judgment, it can
be argued that the denial of services to the patient is “solely by
reason of her or his disability.” Id.

Moreover, although I share the majority’s concern about
undue interference with the doctor-patient relationship through
Rehabilitation Act claims, I question whether claims such as Lesley’s
pose that threat in one of its most troubling forms — the “battle of
experts” at trial requiring a factfinder to choose between a doctor’s
and a patient’s competing versions of the right treatment. In
Bragdon v. Abbott, 524 U.S. 624 (1998), the Supreme Court said that
the views of public health authorities have “special weight and
authority” in assessing the reasonableness of a doctor’s actions.
Id. at 650. However, the Court also said that “[a] health care
professional who disagrees with the prevailing medical consensus may
rebut it by citing a credible scientific basis for deviating from the
accepted norm.” Id. In other words, when competing views exist side
by side at summary judgment, with the plaintiff’s experts
representing the prevailing practice and the defendant’s experts
representing a contrary but reasonable view, the court may still
grant summary judgment to the defendant without deciding who is
right. In my view, Lesley’s evidence — Dr. Minkoff’s testimony, the
MDPH Clinical Advisory, and the U.S. Public Health Service guidelines
— represents the “prevailing medical consensus” that any licensed
obstetrician is qualified to administer AZT. Id. However, the expert
testimony offered on behalf of Dr. Chie justifies summary judgment by
providing a “credible scientific basis” for Dr. Chie’s deviation from
the accepted norm. Id.

Although I agree with the majority that Lesley’s case is
unlike Bragdon v. Abbott, 524 U.S. 624 (1998), because it involves a
doctor’s concern about a potential threat to the health of his
patient rather than to his own health, this is still a denial of
services case. What is at issue here is not Dr. Chie’s improper
medical treatment of Lesley — the standard bad medicine malpractice
claim — but his decision not to treat her and instead to send her to
another health-care provider. Because I see the case in this way, I
do not share the majority’s concern that we must use this case to
announce a rule that will bar the federalization of state medical
malpractice law and undue intrusion on the doctor-patient
relationship under the aegis of the Rehabilitation Act.

To be sure, rules are important in establishing the
parameters of litigation. But we should not establish rules
prematurely. We know that careful, case-specific judicial inquiry
has already helped to resolve difficult denial of treatment claims.
One commentator has noted that “Bragdon v. Abbott and the cases
involving pretextual referrals illustrate how the ADA can act as a
powerful limit on the ability of health care providers to refuse to
provide treatment to individuals with HIV infection” and “send a
clear message to medical and dental providers that refusals to treat
are illegitimate and illegal.” Mary Crossley, Becoming Visible: The
ADA’s Impact on Health Care for Persons with Disabilities, 52 Ala. L.
Rev. 51, 59 (2000). There may or may not be a similar need for a
limit on the ability of health care providers to refer disabled
patients elsewhere because of an unreasonable medical judgment about
the medical effects of the disability, irrespective of pretext.⁽¹⁸⁾
This is not the case to decide that issue.

1. We acknowledge with appreciation the amicus brief filed by
the Massachusetts Department of Public Health, as well as that filed by
the Massachusetts Medical Association and the Professional Liability
Foundation.

2. Intravenous AZT became available at Leominster Hospital on
April 26, 1995 in preparation for delivery by another patient with HIV.

3. MDPH said that it “has determined that no specialized
knowledge beyond that possessed by a licensed obstetrician/
gynecologist is necessary to provide prenatal and obstetrical care to
pregnant women with HIV, including prescribing and monitoring
medications to reduce HIV transmission from mother to fetus. The
Department has also concluded that there is no medical justification to
transfer a pregnant woman to a specialist or to a high risk clinic,
based on HIV-positive status alone. These principles were as true in
March 1995 as they are today.”

4. We recognize that several circuits have held that a disabled
plaintiff cannot be considered “otherwise qualified” for medical
treatment if she would not have needed the treatment absent her
disability. See Grzan v. Charter Hosp., 104 F.3d 116, 120-21 (7th Cir.
1997); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996); Johnson v.
Thompson, 971 F.2d 1487, 1493-94 (10th Cir. 1992), cert. denied, 507
U.S. 910 (1993); United States v. Univ. Hosp. S.U.N.Y. at Stony Brook,
729 F.2d 144, 156-157 (2d Cir. 1984). Partly because we are unsure of
the wisdom of such an approach, and partly because we find it awkward
to speak in terms of a person being “qualified” for medical care, cf.
Woolfolk v. Duncan, 872 F. Supp. 1381, 1388 (E.D. Pa. 1995), we prefer
to approach the case by way of ? 504’s “solely by reason of disability”
prong.

5. We want to make clear what this case is not about. This case
is not about a doctor explicitly refusing to treat a disabled person
out of fear for his own health, cf. Bragdon v. Abbott, 524 U.S. 624
(1998); nor does it otherwise involve the “direct threat to others”
provision of ? 504, cf. School Bd. of Nassau Cty. v. Arline, 480 U.S.
273 (1987); EEOC v. Amego, 110 F.3d 135 (1st Cir. 1997). Nor is it a
case in which plaintiff claims she was denied a reasonable
accommodation by her doctor. Cf., e.g., Davis v. Flexman, 109 F. Supp.
2d 776 (S.D. Ohio 1999) (clinic refused to provide sign-language
interpreter to hearing-impaired patients).

6. Indeed, such a prohibition would not only be nonsensical; it
would be unethical. As one commentator has noted: “Ethical medical
decision-making should take into account all medical factors —
disability-related or not — affecting a patient’s condition and
prognosis. Thus, to read the ADA as prohibiting a medical decision-maker from considering medical factors flowing from a disability would
put the disabled patient . . . in a different, arguably worse, position
than the nondisabled patient . . . .” M. Crossley, Of Diagnoses and
Discrimination: Discriminatory Nontreatment of Infants with HIV
Infection, 93 Colum. L. Rev. 1581, 1655 (1993) (citation omitted).

7. Indeed, in the preemption context, the courts have routinely
recognized “the historic primacy of state regulation of matters of
health.” Backman Co. v. Plaintiffs’ Legal Comm., ___ U.S. ___, 121 S.
Ct. 1013, 1017 (2001), slip op. at 6 (quoting Medtronic, Inc. v. Lohr,
518 U.S. 470, 485 (1996).

8. We have expressed parallel concerns in other contexts. See
Amego, 110 F.3d at 145 (noting the need, in the context of employment
discrimination claims under the ADA, for “special sensitivity to the
danger of the court becoming a super-employment committee”); Wynne v.
Tufts Univ. Sch. of Med., 932 F.2d 19, 25 (1st Cir. 1991) (en banc)
(“When judges are asked to review the substance of a genuinely academic
decision, . . . they should show great respect for the faculty’s
professional judgment.” (quoting Regents of Univ. of Mich. v. Ewing,
474 U.S. 214, 225 (1985)); Villanueva v. Wellesley Coll., 930 F.2d 124,
129 (1st Cir. 1991) (court should not sit as a “super-tenure
committee” in deciding a discrimination claim based on denial of
academic tenure).

9. Cf. Alexander v. Choate, 469 U.S. 287, 299 (1985) (“Any
interpretation of ? 504 must [ ] be responsive to two powerful but
countervailing considerations — the need to give effect to the
statutory objectives and the desire to keep ? 504 within manageable
bounds.”).

10. The district court and the parties have assumed that
plaintiff’s showing is governed by the familiar burden-shifting
paradigm applied in Title VII employment discrimination cases. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248 (1981); see also Pushkin v.
Regents of Univ. of Colo., 658 F.2d 1372 (10th Cir. 1981) (applying
burden-shifting paradigm in Rehabilitation Act case). But we have
rejected use of the paradigm in ADA reasonable accommodation cases.
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir.
1999). And we are far from certain that the model applies in a case
such as this, where the plaintiff’s case begins and ends with an attack
on the professional judgment of the defendant. Thus, without using the
burden-shifting model, we simply assume dubitante that the evidence
Lesley has put forward is sufficient to require us to consider Dr.
Chie’s reasons for his referral.

11. This is of course not to say that in every context a
defendant’s past record of equal treatment undercuts an inference of
discrimination in a particular case. Cf., e.g., Wagner v. Fair Acres
Geriatric Ctr., 49 F.3d 1002, 1016 n. 15 (3d Cir. 1995) (fact that
nursing home admitted other Alzheimer’s disease patients does not rule
out possibility that it discriminated against plaintiff by failing to
reasonably accommodate her Alzheimer’s disease, given that plaintiff
suffered from a distinctly more severe form of the disease more
difficult to accommodate).

12. It is noteworthy that even Lesley’s psychiatrist shared Dr.
Chie’s opinion, advising Lesley that her pregnancy “was not a case that
should be treated at a community hospital, but should be treated in a
university hospital.”

13. There is a second reason why deference to the provider is
more appropriate in a case like this than in a case like Bragdon.
Bragdon concerned a provider’s judgment about risks posed to his own
health — a matter in which the provider’s admitted self-interest may
be expected to color his professional judgment. By contrast, Dr.
Chie’s judgment concerned not what was best for the provider but what
was best for the patient.

14. Indeed, neither the MDPH’s amicus brief nor Dr. Minkoff’s
testimony specifically concludes that Dr. Chie’s referral was
unreasonable given the totality of the circumstances of this case.
Both merely state in the abstract that licensed obstetricians are
capable of performing the types of tasks necessary to administer AZT to
HIV-positive pregnant women and that there is no medical basis for an
obstetrician to refer an HIV-positive pregnant woman based on HIV-positive status alone. Even if Dr. Minkoff’s general statements about
the care of HIV-positive obstetric patients were taken as a commentary
about Leslie’s case, such evidence does not suffice given that it does
not take into account the case-specific factors that, according to Dr.
Chie, motivated his decision to transfer Lesley.

15. The parties dispute the extent to which Lesley’s non-HIV
related complications, such as the risk of fetal heart abnormalities
posed by her use of lithium, had anything to do with Dr. Chie’s
referral decision and, if so, whether his reliance on these factors was
justified. Whatever the case, it is clear that the primary reasons for
Dr. Chie’s decisions are the ones cited in the text, and they are
sufficient to convince us that his decision was not without medical
basis.

16. Typically, negligent referral claims arise where the patient
is referred to an unqualified provider. See, e.g., Estate of Tranor v.
Bloomsburg Hosp., 60 F. Supp. 2d 412, 416 (M.D. Pa. 1999) (doctor’s
referral to specialist whom he has reason to know is incompetent to
treat patient is basis for malpractice liability).

17. For the same reasons Lesley may not succeed on her state
claim under the Massachusetts Public Accommodation statute, Mass. Gen.
Laws ch. 272 ? 98. Interpretation of state disability laws like this
one goes “hand in hand” with interpretation of the federal disability
laws. Abbott v. Bragdon, 107 F.3d 934, 937 n.1 (1st Cir. 1997), aff’d
in part, rev’d in part, 524 U.S. 624 (1998).

18. Studies show that patients with HIV sometimes do not get the
care they need because doctors are reluctant to treat them for a
variety of reasons. See Crossley, supra, at 59 n.40 (citing studies).

Lefler v. United Healthcare of Utah

Lefler v. United Healthcare of Utah,
No. 2:95CV-1109-S (D. Utah Sept. 27, 2001)

A group of people who received health insurance ("insureds") from
a Utah health insurer/HMO ("HMO") brought this ERISA action (section
1132(a)(1)(B)) against the HMO, alleging that the HMO’s failure to pass through
to them the financial benefits it secured through negotiated agreements with
its providers violated the terms of its insurance plan. Specifically, the insureds
claimed that the HMO’s practice of charging the insured copayments based upon
contracted providers’ full non-negotiated rates, as opposed to the negotiated
rate, was contrary to a reasonable understanding of the HMO’s definition of
reasonable and customary charges as stated in the HMO’s plan.

The United States District Court for the District of Utah granted the HMO’s
motion for summary judgment, holding that the HMO’s practice of calculating
percentage copayments from a provider’s billed charge, and not from the provider’s
agreed contractual amount, was based upon at least a reasonable interpretation
of the plan language and, therefore, was not arbitrary and capricious. Although
the court did not find the insureds’ understanding of the term "customary
and reasonable" unreasonable, the court recognized that the HMO’s interpretation
of the term should be upheld so long as it was even at the low end of the scale
of reasonableness. Additionally, the court rejected the insureds’ claims that
the HMO violated ERISA’s fiduciary duty requirements (section 1104), summary
plan description (section 1022), and claims procedure (section 1133) because,
when the insureds can state a claim under section 1132(a)(1)(B), regardless
of the outcome, they may not maintain claims under the remaining sections of
ERISA.

Lesnik v. Cook County

Legg v. Hallet

[Cite as Legg v. Hallet , 2007-Ohio-6595.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Plaintiffs-Appellees,

Mary A. Legg et al.,

v.

Robert L. Hallet, M.D. et al.,

Defendants-Appellees,

(Mount Carmel Health System,

Defendant-Appellant).

:

:

:
No. 07AP-170
(C.P.C. No. 05CVA-02-1977)
:
(REGULAR CALENDAR)
:

:

:

O P I N I O N

Rendered on December 11, 2007

Butler, Cincione & DiCuccio, and N. Gerald DiCuccio, for
plaintiffs.

Earl, Warburton, Adams & Davis, Grier D. Schaffer and
Christopher R. Walsh, for Mount Carmel Health System.

Vorys, Sater, Seymour & Pease, Alan Radnor and Michael R.
Thomas, for Amicus Curiae Mount Carmel Medical Staff.

APPEAL from the Franklin County Court of Common Pleas.

P. BRYANT, J.

{¶1} Defendant-appellant, Mount Carmel Health System (“Mount Carmel”),

appeals from the February 20, 2007 decision and entry of the Franklin County Court of

Common Pleas partially granting the motion of plaintiff-appellee, Mary A. Legg, to compel

No. 07AP-170

Mount Carmel to produce documents in discovery. Because the order Mount Carmel

2

appeals is not final and appealable, the appeal is dismissed.

{¶2} As a result of the medical care plaintiff received for ovarian cancer, plaintiff

in May 2002 filed a medical malpractice action against Mount Carmel and several staff

physicians at Mount Carmel East Hospital. As permitted under Civ.R. 41(A)(1), plaintiff

voluntarily dismissed her original complaint on February 24, 2004 and re-filed the action

on February 22, 2005. Underlying the discovery order at issue here is plaintiff’s claim that

Mount Carmel negligently credentialed Robert Hallet, M.D. who, plaintiff alleged,

negligently cared for, diagnosed, and treated her ovarian cancer.

{¶3} Seeking Mount Carmel’s personnel and credentialing file regarding Dr.

Hallet, plaintiff served Mount Carmel with discovery requests, including subpoenas duces

tecum issued in September 2006 upon the chairman of Mount Carmel’s obstetric and

gynecology department and its director of medical staff services. In response, Mount

Carmel moved for a protective order and to quash the subpoenas, arguing the subpoenas

were an improper means of discovery and the records plaintiff requested are privileged

and therefore not discoverable. At the trial court’s request, the parties stipulated in

November 2006 that Dr. Hallet’s credentialing file be submitted to the court for an in

camera inspection to determine if any or all of the credentialing file was discoverable.

{¶4}

In a December 4, 2006 decision and entry, the trial court found the

subpoenas violated Civ.R. 45(A)(1)(c)’s provision that prohibits using a subpoena to

obtain the production of documents from a party. Granting Mount Carmel’s motion to

quash the subpoenas, the court denied Mount Carmel’s motion for a protective order as

moot and noted “the issue of which records are discoverable may remain in this case.”

No. 07AP-170

{¶5} On January 4, 2007, plaintiff filed a motion under Civ.R. 37 to compel Mount

3

Carmel to produce the following documents for inspection and copying:

Complete copies of any and all documents of any kind, nature
and/or description pertaining in any manner whatsoever to the
application for and/or granting of medical and/or surgical staff
privileges with Mount Carmel Health and any of its affiliated
hospitals, including Mount Carmel East Hospital, by and for
Defendant Hallet, for staff privileges in effect in the year 2000,
including, but not limited to:

a. All applications for staff privileges by Defendant Hallet,
together with all supporting documentation accompanying
said applications;

b. Any and all documentation
regarding evaluations,
complaints, and/or performance reviews;

c. All documents received by Defendant Hallet pertaining in
any fashion to the granting, denial and/or modification of staff
privileges;

d. Copies of all licenses, certifications, and/or CME credits
(from 1996-2000) submitted by Defendant Hallet; and

e. Any and all standards and/or procedures to be applied by
Defendant Mount Carmel and/or
its medical staff
in
considering and acting upon applications for staff membership
and professional privileges.

{¶6} On January 17, 2007, Mount Carmel filed a memorandum contra plaintiff’s

motion to compel. Mount Carmel indicated its willingness to comply with plaintiff’s request

in paragraph “e,” but objected to any further discovery, asserting plaintiff’s other

document requests involved privileged peer-review and credentialing documents that are

protected from discovery under R.C. 2305.252 and 2305.253. In a February 20, 2007

decision and entry, the trial court granted in part and denied in part plaintiff’s motion to

compel.

No. 07AP-170

{¶7} Noting Mount Carmel did not oppose the production of documents

4

pertaining to its credentialing standards and procedures, the trial court ordered Mount

Carmel to produce the materials plaintiff requested in paragraph “e.” The court denied

plaintiff’s document requests in paragraphs “a,” “c,” and “d,” together with her request in

paragraph “b” for “evaluation” and “performance review” documents, concluding all such

documents are protected from discovery because they fall within the scope of the peer

review privilege contained in R.C. 2305.252. The trial court nonetheless found the peer

review privilege does not protect from discovery all documents pertaining to “complaints”

made against Dr. Hallet, the subject of some of plaintiff’s requests in paragraph “b.”

{¶8} Explaining, the trial court noted that R.C. 2305.252 extends a peer review

privilege to “proceedings and records within the scope of a peer review committee of a

health care entity.” The parties do not dispute that Mount Carmel is a “health care entity”

as defined in R.C. 2305.25(A)(1). The trial court determined Mount Carmel’s risk

management department has complaint files that are (1) segregated and kept in a

separate location from Mount Carmel’s credentialing records and (2) used for purposes

other than peer review.

{¶9}

In reaching that conclusion, the trial court relied on an affidavit of Mount

Carmel East Hospital’s risk manager, who attested that when Mount Carmel receives a

complaint about a healthcare provider, “a complaint file for that individual healthcare

provider is created.” (Affidavit of Christina Richards.) According to the affidavit, “[t]he

purpose of the file is to document the investigation and follow-up to resolve the patient’s

complaint, as well as to compile a summary of information, if any, for possible

consideration at the time of a physician’s re-credentialing and re-appointment process

No. 07AP-170

which is treated as a confidential peer-review process by the Hospital.” Id. (Emphasis

5

added.) The hospital keeps each such complaint file “in a locked cabinet in the Risk

Management Department and access to these files is strictly limited to the Risk Manager

and a limited number of select members of the medical staff who are on peer-review

committees.” Id.

{¶10} Based upon the affidavit, the court determined the statutory purpose of a

“peer review committee,” as defined in R.C. 2305.25(E)(1), is narrower in function and

scope than the broader “risk management” Mount Carmel conducts to avoid litigation and

liability against a hospital, to preserve hospital reputation, and to investigate and resolve

patient complaints. Concluding Mount Carmel’s risk management department’s complaint

files do not fall within the scope of the peer review privilege, the court ordered Mount

Carmel to produce “patient complaints, and complaints from others who are not acting as

hospital staff or medical personnel with privileges at the hospital, pertaining to Dr. Hallet.”

(Feb. 20, 2007 decision and entry, 1-2.) The court further required Mount Carmel to

produce “any other documents within the hospital’s Risk Management Department’s

complaint files pertaining to such complaints (except for documents prepared in

anticipation of litigation or documents created as communication with or from legal

counsel).” Id. (Emphasis added.) The court’s order lastly instructed that “[a]ny such

documents shall be produced from the hospital’s Risk Management files rather than from

the peer-review [credentialing] files [that were previously] submitted to this court for an in

camera inspection.” (Emphasis added.)

{¶11} In ordering Mount Carmel to produce documents from its risk management

department’s complaint files, the court expressly noted that “[i]ssuance of this order

No. 07AP-170

should not be construed as a finding by this court that there are any such complaints

6

pertaining to Dr. Hallet in the Hospital’s Risk Management files or in the confidential peer-

review file [that were] submitted for the in camera inspection. This Court merely orders

that the documents be produced from the Risk Management files if they exist.” Id.

(Emphasis added.)

{¶12} Mount Carmel appeals from the trial court’s February 20, 2007 order,

assigning the following errors:

I. The trial court erred to the prejudice of Mount Carmel when
it refused to find that Plaintiffs were collaterally estopped from
filing a motion to compel when Plaintiffs failed to appeal the
trial court’s final order quashing Plaintiffs’ subpoena.

II. The trial court erred to the prejudice of Mount Carmel when
it held that complaints presented to Mount Carmel’s peer
review committee were discoverable, which order violated the
plain language of R.C. 2305.252 and 2305.253.

III. The trial court erred to the prejudice of Mount Carmel
when it strictly construed an unambiguous statute, R.C.
2305.252.

{¶13} As a preliminary matter, because this court can only “review and affirm,

modify, or reverse judgments or final orders,” we first must determine whether the trial

court’s February 20, 2007 order is final and appealable. See Section 3(B)(2), Article IV,

Ohio Constitution. “* * * The entire concept of ‘final orders’ is based upon the rationale

that the court making an order which is not final is thereby retaining jurisdiction for further

proceedings. A final order, therefore, is one disposing of the whole case or some

separate and distinct branch thereof.” Briggs v. Mt. Carmel Health Sys., Franklin App. No.

07AP-251, 2007-Ohio-5558, at ¶7, quoting Noble v. Colwell (1989), 44 Ohio St.3d 92, 94,

quoting Lantsberry v. Tilley Lamp Co. (1971), 27 Ohio St.2d 303, 306. “A judgment that

No. 07AP-170

leaves issues unresolved and contemplates that further action must be taken is not a final

7

appealable order.” Briggs, at ¶7, quoting State ex rel. Keith v. McMonagle, 103 Ohio St.3d

430, 2004-Ohio-5580, at ¶4, citing Bell v. Horton (2001), 142 Ohio App.3d 694, 696. “A

‘final decision’ generally is one which ends the litigation on the merits and leaves nothing

for the court to do but execute the judgment.” Briggs, at ¶7, quoting Catlin v. United

States (1945), 324 U.S. 229, 233.

{¶14} Mount Carmel contends the trial court’s February 20, 2007 order is a final

appealable order pursuant to R.C. 2505.02(B)(4). According to its provisions, an order

granting or denying a provisional remedy is final and subject to review if the order (1) “in

effect determines the action with respect to the provisional remedy and prevents a

judgment in the action in favor of the appealing party with respect to the provisional

remedy,” and (2) “[t]he appealing party would not be afforded a meaningful or effective

remedy by an appeal following final judgment as to all proceedings, issues, claims, and

parties in the action.” To satisfy R.C. 2505.02(B)(4) and constitute a final appealable

order, an order must grant or deny a provisional remedy and both additional provisions

must apply. By statutory definition, a “provisional remedy” is “a proceeding ancillary to an

action, including, but not limited to, a proceeding for * * * discovery of privileged matter

* * *.” R.C. 2505.02(A)(3).

{¶15} Generally, discovery orders are

interlocutory and not

immediately

appealable. See Walters v. Enrichment Ctr. of Wishing Well, Inc. (1997), 78 Ohio St.3d

118, 120-121; State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 438; Briggs,

supra, at ¶11. The scope of pretrial discovery is broad and parties may obtain discovery

No. 07AP-170

regarding any matter that is not privileged and is relevant to the subject matter. Civ.R.

8

26(B)(1).

{¶16} To the extent an order pertains to matters other than those concerning

discovery of privileged matters, the order is deemed interlocutory and therefore not final

and appealable. See Covington v. The MetroHealth Sys., 150 Ohio App.3d 558, 2002-

Ohio-6629, ¶21, appeal not allowed, 98 Ohio St.3d 1538, 2003-Ohio-1946. See, also,

Chambers v. AKAAS Corp., Inc., Lorain App. No. 05CA008791, 2006-Ohio-4156,

discretionary appeal not allowed, 112 Ohio St.3d 1442, 2007-Ohio-152 (finding no final

appealable order where the appellant did not appeal from the protection denied to actual

privileged information). By contrast, orders requiring the disclosure of privileged

information are final and appealable. See, e.g., Nester v. Lima Mem. Hosp. (2000), 139

Ohio App.3d 883, appeal not allowed (2001), 91 Ohio St.3d 1474; Schottenstein, Zox &

Dunn v. McKibben, Franklin App. No. 01AP-1384, 2002-Ohio-5075, at ¶19; Callahan v.

Akron Gen. Med. Ctr., Summit App. No. Civ.A. 22387, 2005-Ohio-5103, at ¶28. “Privilege

must rest upon some specific constitutional or statutory provision.” State ex rel.

Grandview Hosp. & Medical Ctr. v. Gorman (1990), 51 Ohio St.3d 94, 95.

{¶17} Within those parameters, Mount Carmel asserts the trial court granted a

“provisional remedy.” It therefore contends the court’s February 20, 2007 order is final

and appealable pursuant to R.C. 2505.02(B)(4) because it ordered the discovery of

documents that are privileged and statutorily protected from discovery under R.C.

2305.252 and 2305.253.

{¶18} R.C. 2305.252, the “peer review privilege,” provides that documents or

records cannot be obtained from a peer review committee’s records or proceedings. Doe

No. 07AP-170

v. Mount Carmel Health Systems, Franklin App. No. 05AP-435, 2005-Ohio-6966, at ¶16,

9

appeal not allowed, 109 Ohio St.3d 1480, 2006-Ohio-2466. Pursuant to the statute, a

court’s order to produce for discovery or for use at trial a peer review committee’s records

or proceedings is a final, appealable order. R.C. 2305.252. A “peer review committee”

conducts credentialing activities for health care providers, such as Dr. Hallet, and

conducts other attendant hearing processes “initiated as a result of a peer review

committee’s recommendations or actions.” R.C. 2305.25(E)(1).

{¶19} Even so, the statutorily conferred peer review privilege is not absolute.

Grandview Hosp., supra, at 96; Doe, supra, at ¶15. The peer review privilege does not

extend to “information, documents, or records otherwise obtainable from original

sources,” even if the documents or records were produced or presented during peer

review proceedings. R.C. 2305.252; Grandview Hosp., supra; Doe, at ¶16; Wilson v.

Barnesville Hosp., 151 Ohio App.3d 55, 2002-Ohio-5186, at ¶14; Brzozowski v. Univ.

Hosp. Health Systems, Cuyahoga App. No. 85097, 2005-Ohio-2628, at ¶19, appeal not

allowed, 106 Ohio St.3d 1558, 2005-Ohio-5531. Thus, although documents or records

cannot be obtained from a peer review committee’s proceedings or records, “[s]uch

documents and records are available from the original source of the information

contained therein.” Doe, at ¶16; Cook v. Toledo Hosp., 169 Ohio App.3d 180, 2006-Ohio-

5278, at ¶31; Tenan v. Huston, 165 Ohio App.3d 185, 2006-Ohio-131, at ¶23.

{¶20} R.C. 2305.253 addresses

the confidentiality of

incident and

risk

management reports. The statute provides that such reports and their contents are not

subject to discovery and are not admissible in the trial of a tort action. R.C. 2305.25(D)

defines an “incident or risk management report” as “a report of an incident involving injury

No. 07AP-170

or potential injury to a patient as a result of patient care provided by health care providers

10

* * * that is prepared by or for the use of a peer review committee of a health care entity

and is within the scope of the functions of that committee.” (Emphasis added.) This court

addressed the privilege accorded incident and risk management reports, concluding “[t]he

privilege granted by R.C. 2305.253 specifically targets documents that report an incident

involving injury suffered by a patient while receiving medical care by a health care

provider.” Doe, supra, at ¶18. If “this type of document is prepared by-or for the use of-a

peer review committee, it is to be confidential and not subject to discovery.” Id.

Nonetheless, “similar to the peer review privilege as a whole, the unavailability of

documents does not render all information pertaining to an incident beyond the scope of

discovery. A person may testify, or produce evidence, regarding patient care that is within

his or her personal knowledge. R.C. 2305.253(B)(2).” Id.; see, also, R.C. 2305.252.

{¶21} The purpose of the statutes is not to hinder lawsuits, but to create limited

protection not only to individuals who provide information to peer review committees but

also to those who serve on such committees, thereby encouraging a free flow of

information without fear of reprisal in the form of civil liability. Browning v. Burt (1993), 66

Ohio St.3d 544, 562. See, also, Jacobs v. Frank (1991), 60 Ohio St.3d 111. The statutes

neither expressly nor implicitly give blanket immunity to a health care entity for negligence

in granting or continuing staff privileges to an incompetent physician. Browning, supra. “If

all materials viewed and utilized by peer

review committees were deemed

undiscoverable, a hospital could never be held accountable for its choice in staffing * * * .”

Wilson, supra, at ¶23. As the court in Wilson aptly observed, “[t]his is precisely why courts

continue to recognize the tort of negligent credentialing: so that hospitals may be held

No. 07AP-170

accountable by third parties for the breach of their duty to hire only competent

11

physicians.” Id. at ¶24. See Albain v. Flower Hosp. (1990), 50 Ohio St.3d 251, paragraph

two of the syllabus (discussing negligent credentialing and the duty of health care entities

to grant staff privileges only to competent physicians).

{¶22} Mount Carmel contends its risk management department meets the

definition of a peer review committee when it is accepting and processing complaints

relating to health care, including complaints concerning physicians. According to Mount

Carmel, the peer review committee, as part of the peer review process, reviews each

complaint relating to a physician, and the complaint becomes part of the peer view

committee’s records. Thus, Mount Carmel contends, any complaint made against its

physicians, including Dr. Hallet, is clearly a peer review document that falls within the

scope of the peer review committee’s functions, even though the physician complaint files

that the risk management department maintains may have other uses.

{¶23} According to the affidavit of Mount Carmel’s risk manager, the risk

management department, upon receiving a patient’s complaint regarding a physician,

creates a complaint file “to document the investigation and follow-up to resolve the

patient’s complaint,” and a summary of

information

is compiled

for “possible

consideration” at the time of the re-credentialing, peer review process for the physician.

The affidavit thus does not support Mount Carmel’s contention on appeal that every

complaint Mount Carmel’s risk management department receives is a peer review

document “prepared by or for the use of a peer review committee” or is even considered

in the peer review committee.

No. 07AP-170

{¶24} Here, the trial court’s order correctly prohibited the disclosure of any

12

complaint documents pertaining to Dr. Hallet from Mount Carmel’s peer review committee

proceedings or records. Such documents are privileged and protected from discovery.

Doe, supra, at ¶16. The trial court narrowly tailored its order to producing documents only

from the risk management department’s files. Any complaint documents contained in

such files that were not prepared by or for the use of Mount Carmel’s peer review

committee are subject to discovery and may be obtained “from the original source of the

information contained therein,” even if the documents were produced or presented during

peer review proceedings. Grandview Hosp., supra; Doe, at ¶15-16; Cook, supra, at ¶31;

Wilson, supra, at ¶14; Brzozowski, supra, at ¶19; Tenan, supra, at ¶23.

{¶25} In Ohio, the burden of showing that documents are confidential or privileged

rests upon the party seeking to exclude the documents from discovery. Covington, supra,

at ¶25, citing Lemley v. Kaiser (1983), 6 Ohio St.3d 258, 263-264; Smith v. Manor Care of

Canton, Inc., Stark App. No. 2005-CA-00100, 2006-Ohio-1182, at ¶61-62; Rinaldi v. City

View Nursing & Rehab. Center, Inc., Cuyahoga App. No. 85867, 2005-Ohio-6360, at ¶22,

appeal not allowed, 109 Ohio St.3d 1424, 2006-Ohio-1967. Mount Carmel cannot

complain for the first time on appeal that the trial court ordered it to disclose “privileged”

documents where Mount Carmel failed to offer any evidence that complaints pertaining to

Dr. Hallet (1) exist within the risk management department’s files and therefore are

subject to production in camera, and (2) are privileged and therefore protected from

discovery. See Manor Care, supra; Rinaldi, supra.

{¶26} Indeed, in ordering Mount Carmel to produce complaints pertaining to Dr.

Hallet that are contained within its risk management files, the trial court expressly noted it

No. 07AP-170

was not making a finding that any such documents exist; it merely ordered Mount Carmel

13

to produce the documents “if they exist.” The record before this court does not identify or

appear to contain any such documents. Nor does the record reflect that Mount Carmel

produced any risk management department documents pursuant to the trial court’s order.

Moreover, the record does not indicate that Mount Carmel submitted any risk

management department files to the trial court for an in camera review so the court could

determine whether privilege protects any complaint documents contained in the files from

discovery.

{¶27} The trial court’s in camera inspection of any risk management documents

pertaining to Dr. Hallet, for which Mount Carmel claims a privilege and protection from

discovery, is a necessary preliminary step and is the most appropriate way to weigh

claims of privilege regarding the documents. See Grandview Hosp., supra, at 96, citing

Henneman v. Toledo (1988), 35 Ohio St.3d 241; Akers v. Ohio State Univ. Med. Ctr.,

Franklin App. No. 04AP-575, 2005-Ohio-5160; Doe, at ¶13; Gates v. Brewer (1981), 2

Ohio App.3d 347. W ithout reviewing the actual documents, neither the trial court nor this

court can make an informed decision as to whether any of the information contained in

the documents is privileged and protected from discovery. Id. Moreover, any issues that

may be the subject of an appeal would be rendered moot if the trial court determines in an

in camera review that either (a) the risk management files contain no “complaints”

pertaining to Dr. Hallet or (b) all of the information contained in the risk management

complaint files is privileged. Conversely, if the trial court determines in an in camera

review that some information contained with the risk management department’s file is

No. 07AP-170

subject to disclosure, Mount Carmel may pursue an appeal at that time. Mount Carmel’s

14

appeal at this time is simply premature.

{¶28} Because the trial court did not order the production of complaint documents

from the peer review committee’s proceedings or records, the February 20, 2007

discovery order is not a final appealable order pursuant to R.C. 2305.252. Similarly,

because Mount Carmel did not demonstrate the trial court’s order grants discovery of

privileged material, it failed to show the order grants a “provisional remedy” under R.C.

2505.02(B)(4). The trial court’s discovery order therefore is interlocutory and is not final

and appealable pursuant to R.C. 2502.02. Accordingly, we dismiss this appeal for lack of

jurisdiction.

Appeal dismissed.

FRENCH, J., and T. BRYANT, J., concur.

T. BRYANT, J., retired of the Third Appellate District,
assigned to active duty under authority of Section 6(C), Article
IV, Ohio Constitution.

_________________

Lee v. Simon

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT JULY TERM 2004

MERVIN LEE, as Personal Representative of
the Estate of VIRGINIA LEE, deceased,

Appella n t ,

v.

DAVID SIMON, D.O. , COLUMBIA PALMS
WEST HOSPITAL LIMITED
PARTNERSHIP d/b/a PALMS WEST
HOSPITAL; WILLIAM JEFFREY DAVIS,
D.O.; EMERGENCY PHYSICIANS
ENTERPRISES, INC.; EDDIE
VELAZQUEZ, M.D.; WESTERN
COMMUNITIES FAMILY PRACTICE OF
WEST PALM BEACH, a/k/a WESTERN
COMMUNITIES FAMILY PRACTICE
ASSOCIATES, INC.; STEVEN SACKS,
D.O.; SOUTH FLORIDA CENTER OF
GASTROENTEROLOGY, P.A. ; FRED L.
SIMON, M.D.; A MARIANO IBARROLA,
M.D.; PALM BEACH SURGICAL; STEVEN
G. GOFF, M.D.; DOUGLAS L. WATSON,
M.D.; JACK ZELTZER, M.D.; MITCHELL
N. DAVIS, D.O.; MATTHEW J. SMITH,
D.O.; J.M.D.; BARRY ABRAMS, M.D.;
BARRY ABRAMS, M.D., P.A.; LARRY
BUSH, M.D.; and SUZANNE Y. SUCCOP,
M.D.,

Appellees.

CASE NO. 4D 03-3292

Opinion filed October 27, 2004

Appeal from
the
the Circuit Court for
Fifteenth Judicial Circuit, Palm Beach County;
Karen Miller,
Judge; L.T. Case No.
502000CA008240XXMPAA, CL 00-8240AA.

Christian D. Searcy and Karen Terry of Searcy
Denney Scarola Barnhart & Shipley, P.A., and
Edna L. Caruso of Edna L. Caruso, P.A., West
Palm Beach, for appellant.

Douglas M. McIntosh, Louise H. McMurray
and Robert C. Weill of McIntosh, Sawran, Peltz,
Cartaya & Petruccelli, P.A., Miami, for appellee
David Simon, D.O.

WARNER, J.

Mervin Lee, as personal representative of the
Estate of Virginia Lee, appeals the trial court’s
summary final judgment dismissing his medical
malpractice claim against Dr. David Simon on
the grounds that the statute of limitations had
expired before Lee sued Simon. Lee contended
that he was unable to discover the identity of Dr.
Simon through the use of due diligence, and that
the issue of due diligence is a question of fact
for the jury. We hold that the statute of
limitations commenced when Lee was aware of
the injury (death) and the reasonable pos sibility
that it was caused by negligence. Because there
is no tolling provision that would apply to
prevent the running of the statute, nor is the
defendant equitably estopped from asserting the
bar, the statute of limitations has run and we
affirm the ruling of the trial court.

On May 31, 1998, Virginia Lee went to the
emergency room of a local hospital complaining
of abdominal pain and shortness of breath. She
had a history of diverticulitis. She was initially
seen by an emergency room physician. After an
initial examination, Dr. Davis made a diagnosis
of acute diverticulitis and possible sepsis. He
contacted her primary care physician, Dr.
Campitelli. Dr. David Simon was on call for Dr.
Campitelli that day. Dr. Davis and Dr. Simon
agreed that Virginia should be admitted to the
hospital, and Dr. Simon gave the order to admit,
also recommending a gastrointestinal consult. A
nurse entered these orders on Virginia’s hospital
chart on a form entitled “Physician Orders and
Signature.” On the bottom, she handwrote “T.O.
Simon.” Apparently this is the hospital’s
abbreviation for telephone order by Dr. Simon.
However, the emergency room records listed Dr.
Campitelli as
the admitting physician for
Virginia.

 Virginia was not seen by Dr. Ibarrola, a
surgeon, until the next day. Exploratory surgery
revealed a resected large bowel, perforated
diverticula with abscess inflammation, as well as
other complications. Following surgery, several
other doctors saw Virginia, including Dr. Fred
Simon,
an
associate
of Dr.
Ibarrola.
Unfortunately, during a subsequent surgery
while still hospitalized, Virginia suffered cardiac
arrest and died on July 2, 1998. The Expiration
Summary listed Dr. Campitelli as her physician.
Nowhere does it list Dr. David Simon.

Believing medical malpractice occurred
during Virginia’s care and
treatment, Lee
commenced pre-suit proceedings under section
766.106, Florida Statutes (1998), by filing a
notice of intent to initiate suit against various
physicians associated with Virginia’s care,
including Dr. Campitelli and Dr. Fred Simon as
well as
twenty other healthcare providers
involved in her treatment. Dr. David Simon was
not identified as a potential defendant nor served
with a notice of intent.

Lee claims that he first discovered Dr. David
Simon’s involvement with Virginia’s care when
Dr. Campitelli filed an affidavit during the pre-
suit process on July 17, 2000, explaining that
Dr. David Simon had telephoned the admitting
orders for Virginia. A month later, Lee filed suit
agains t twenty-five defendants but did not name
Dr. David Simon because he had not been
subject to pre-suit procedures. On February 28,
2001, Lee served notice of intent to sue on Dr.
David Simon, who responded by denying the
claim.

Lee filed an amended complaint in June 2001
joining Dr. David Simon. Dr. Simon filed an
answer and
then a motion for summary
judgment based solely on
the statute of
limitations. Simon argued that the statute of
limitations expired on September 1, 2000, which
was two years plus the ninety- day extension
period allowed by statute from the date of
Virginia’s admission to the hospital. Simon
argued that his involvement in Virginia’s care
was readily available through a review of her
records because of the nurse’s notation of “T.O.

2

Simon” on the admitting form. Had Lee’s
attorneys exercised due diligence, they could
have discovered Simon’s identity by simply
calling the hospital. Because more than two
years had passed from the date of Virginia’s
death and the initiation of pre-suit investigation,
the statute of limitations had run, entitling
Simon
to summary
judgment.
Countering
Simon’s argument, Lee maintained there was
nothing in the medical records to indicate that
Dr. David Simon was involved in Virginia’s
treatment, and that he had not learned of Simon
until Campitelli submitted his affidavit.

The trial court granted the summary judgment,
finding that the statute of limitations had
expired. It relied on Frankowitz v. Propst, 489
So. 2d 51 (Fla. 4th DCA 1986), in which we
held that where the means of discovering a
physician’s involvement were readily available
to plaintiff
through
the medical
records,
plaintiff’s delay in examining those records did
not toll the statute, and the physician was
entitled to rely on the bar of the statute of
limitations when suit was
filed after
its
expiration. Lee appeals this final judgment.

The statute of
limitations
malpractice actions
is
found
95.11(4)(b), Florida Statutes (1998):

for medical
in
section

An action for medical malpractice shall be
commenced within 2 years from the time the
incident giving rise to the action occurred or
within 2 years from the time the incident is
discovered, or should have been discovered
with the exercise of due diligence . . . . In
those actions covered by th is paragraph in
which
it can be
shown
that
fraud,
concealment, or intentional misrepresentation
of fact prevented the discovery of the injury
the period of limitations is extended forward
2 years from the time that the injury is
discovered or should have been discovered
with the exercise of due diligence . . . .

In Barron v. Shapiro, 565 So. 2d 1319, 1322
(Fla. 1990), the court construed an earlier but
substantially similar version of this statute as
triggering the running of the statute “when the

plaintif f should have known either of the injury
or the negligent act.” The court modified this
holding in Tanner v. Hartog , 618 So. 2d 177,
181-82 (Fla. 1993), and stated:

We hold that the knowledge of the injury as
referred to in the rule as triggering the sta tute
of limitations means not only knowledge of
the injury but also knowledge that there is a
reasonable possibility that the injury was
caused by medical malpractice. The nature
of the injury, standing alone, may be such
that
it communicates
the possibility of
medical negligence, in which event the
statute of limitations will immediately begin
to run upon discovery of the injury itself. On
the other hand, if the injury is such that it is
likely to have occurred from natural causes,
the statute will not begin to run until such
time as there is reason to believe that medical
malpractice may possibly have occurred.

(Footnote omitted). Thus, knowledge of an
injury that may be caused by medical negligence
is sufficient to commence the running of the
statute of limitations. In this case, the statute
started running with the death of Virginia. Lee
cannot contest the fact that he knew both of the
injury (death) and that negligence may have
occurred. He filed a notice of intent to pursue
litigation, and he served a notice on Dr.
Campitelli, as the admitting physician, because
he believed that negligence had occurred at the
time Virginia was admitted to the hospital due to
a failure to properly examine and diagnose her.
Thus, he intended to bring a claim agains t the
admitting physician.
Contrary
to Lee’s
argument, the statute of limitations does not
commence when he discovers a person to be
sued but instead commences when he has notice
of the injury and its possible cause by medical
negligence.

The question in this case is not when the
statute began to run but whether Lee’s failure to
discover the identity of the doctor somehow tolls
the statute of limitations. Section 95.11(4)(b)
provides an extension where fraud or intentional
concealment prevents the discovery of the
injury, but it does not include a similar provision

for the failure to discover the negligent actor.
Section 95.051(1), Florida Statutes (1998) ,
provides when the running of the statute of
limitations may be tolled. None of the grounds
contained in that statute apply to this case.

In several cases we have considered whether
the fraudulent concealment of the identity of the
negligent actor tolls the statute. In International
Brotherhood of Carpenters & Joiners of
America, Local 1765 v. United Ass’n of
Journeyman Apprentices, 341 So. 2d 1005 (Fla.
4th DCA 1976), the plaintiff’s building was
damaged by an explosion. Suit was not brought
until after the expiration of the applicable statute
of limitations because the plaintiff did not
discover the identity of the tortfeasor. We held
that fraudulent concealment did not toll the
statute of limitations, reasoning:

It
is clear
that
the doctrine, recently
reasserted by our Supreme Court in Nardone
v. Reynolds , 333 So.2d 25 (Fla.1976), and
cases cited, under which the statutory period
is tolled because of a fraudulent concealment
of the existence of a Cause of action which
would give rise to a right to sue does not
apply here. In this case, the plaintiff plainly
knew that it had a cause of action in tort as
soon as its building blew up. Its ignorance as
to the identity of the potential defendant does
not affect this fact, see 1 Fla.Jur., Actions, s
22, p. 148, nor, as all the authorities say,
bring it within this limited exception to the
statutory rule.

It can hardly be denied that the result we
reach, which in effect rewards those who by
criminal skill not only stealthily destroy
another’s property but avoid detection during
the statutory period as well, is a harsh one.
But all statutes of limitations, which by their
very nature destroy otherwise just causes
merely because of the passage of time, are
inherently harsh. Harsh results represent a
trade -off which the Legislature has decided it
is willing to make in exchange for the
burying of stale claims.
Even in the
provisions of F.S. s 95.051, enacted after the
events involved in this case, the Legislature

3

has declined to exclude the situation before
us from the effect of this decision; it certainly
had not done so before. In the end, Its
determination should, and therefore does,
prevail.

341 So. 2d at 1006- 07 (citations omitted).

We relied on International Brotherhood in
Sullivan v. Fulton County Administrator , 662
So. 2d 706, 707- 08 (Fla. 4th DCA 1995), rev. in
part on other grounds, 753 So. 2d 549 (Fla.
1999),1 and held, with some expression of
distaste, that the fraudulent concealment of the
identity of a murderer so that a wrongful death
action could not be brought within the two-year
statute of limitations did not toll the statute.
Again, in Putnam Berkley Group, Inc. v. Dinin ,
734 So. 2d 532, 534 (Fla. 4th DCA 1999), we
held that fraudulent concealment of the identity
of a wrongdoer did not toll the statute because
section 95.051 did not contain such a provision,
and section 95.051(2) specifically provides that
“‘No disability or other reason shall toll the
running of any statute of limitations except those
specified in this section….’”

The supreme court ameliorated the effect of
this construction of the statute in Major League
Baseball v. Morsani, 790 So. 2d 1071 (Fla.
2001). While acknowledging that the reasons
for tolling the statute set forth in section 95.051
were a legislatively mandated exclusive set of
circumstances that would suspend the relevant
statute of limitations, it found the principle of
equitable estoppel could be used to prevent a
defendant from raising the statute of limitations
as a bar to suit. 790 So. 2d at 1075-77. The
court stated:

1 The supreme court issued two opinions in this case.
The first agreed with this court’s analysis of the
tolling issue. Fulton County Adm’r v. Sullivan, 22
Fla. L. Weekly S578 (Fla. Sept. 25, 1997). We
quoted extensively from this opinion in Putnam
Berkley Group, Inc. v. Dinin, 734 So. 2d 532, 533-
34 (Fla. 4th DCA 1999) . However, the opinion was
subsequently withdrawn, and the case was decided on
another issue. See Fulton County Adm’r v. Sullivan,
753 So. 2d 549 (Fla. 1999). The second opinion did
not address the tolling statute.

4

The doctrine of estoppel is applicable in all
cases where one, by word, act or conduct,
willfully caused another to believe in the
existence of a certain state of things, and
thereby induces him to act on this belief
injuriously to himself, or to alter his own
previous condition to his injury. State ex rel.
Watson v. Gray, 48 So.2d 84, 87- 88
(Fla.1950).

Id. at 1076. Thus, while tolling operates on the
statute, equitable estoppel operates on the party.

We elaborate on the construction of tolling
provisions and equitable estoppel to contrast
with the facts of this case. Here, there is no
suggestion of fraudulent concealment of the
identity of the doctor, and even if there were, it
would not
toll
the statute of
limitations.
Equitable estoppel would not apply because
there is nothing in the record to suggest that the
doctor in any way misled or prevented Lee from
discovering his identity. The hospital medical
records may have been inaccurate by referring to
Dr. Campitelli as the admitting physician in
some places, but this was not due to any fault of
Dr. David Simon. The recor ds did contain the
name Simon on the physician’s notes regarding
admission. Nothing suggests any reason why
Dr. David Simon should be equitably estopped
from asserting
the bar of
the statute of
limitations.

Lee in essence argues that he should be
relieved from the effect of the statute of
limitations because of excusable neglect. We do
not doubt that he used care in reviewing the
medical records and simply missed Dr. Simon’s
name. But excusable neglect is not a ground for
tolling the statute. And it is not attributable in
any way to Dr. David Simon’s conduct.

In Louis v. South Broward Hospital District,
353 So. 2d 562 , 563 (Fla. 4th DCA 1977), we
held that the statute of limitations barred suit
where the plaintiff filed suit against the wrong
defendant and later tried to amend to add a
different defendant after the running of the
statute of limitations. The plaintiff filed suit

David Simon, we cannot conclude that it was
impossible. Moreover, it does not appear that
the Legislature has provided for an exception to
the running of the statute of limitations for such
cases.

For
the final
these reasons, we affirm
judgment in favor of Dr. David Simon based
upon the bar of the statute of limitations.

SHAHOOD, J., and GATES, MICHAEL L.,
Associate Judge, concur.

NOT FINAL UNTIL DISPOSITION OF ANY
TIMELY FILED MOTION FOR REHEARING.

against Hollywood Memorial Hospital of West
Hollywood.
The summons was issued to
Hollywood Memorial Hospital—North Broward
Hospital District. An amended summons and
complaint was issued after the running of the
applicable
limitations naming
statute of
Hollywood Memorial Hospital-South Broward
Hospital District at a different address than the
first summons. The trial court granted summary
judgment, finding that the action was instituted
against South Broward Hospital District, a
different entity than North Broward Hospital
District, after the running of the statute of
limitations. We said, “An amendment which
merely corrects a misnomer might well relate
back to the date the complaint was originally
filed but this relation back rule is inapplicable
where the effect is to bring new parties into the
suit.” 353 So. 2d at 563.

Here, Lee filed a notice of intent to litigate
against Dr. Campitelli for his negligence in
Virginia’s admission to the hospital. After
finding that Dr. David Simon was the admitting
physician, Lee filed suit against him. Just as in
Louis, a new party was added, and
the
amendment cannot relate back to the filing of
the suit.

Finally, Frankowitz expresses the principle
that knowledge of the contents of the medical
records are imputed to a party even when the
contents are not known. 489 So. 2d at 52 (citing
Nardone , 333 So. 2d at 34). In Frankowitz, the
injured patient knew that Dr. Frankowitz had
treated her for a heart condition but did not
realize that he was also involved in her treatment
for gastrointestinal disorders, which formed the
bases of her medical malpractice claim. The
details of his treatment were in the records but
the plaintiff did not read them because she
thought they were not germane to her claim.
Nevertheless, knowledge of whatever was
contained in the medical records was attributable
to the plaintiff. Id. Likewise, knowledge of
what was in Virginia’s medical records was
attributable to Lee. This included the reference
to “Simon” on the orders admitting Virginia to
the hospital. Although it may have required
some investigation to discover the identity of Dr.

5