Lawrence v. Peters

 
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

---

THOMAS R. LAWRENCE, Plaintiff-Appellant, v. ALAN J. PETERS; BRENDA TAYLOR; LARRY POZNER, Defendants-Appellees.

No. 99-1448 (D.C. No. 98-D-1401) (D. Colo.)

---

ORDER AND JUDGMENT^(*)

---

Before KELLY, McKAY, and
HENRY, Circuit Judges.

---

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.

Thomas R. Lawrence, a chiropractor indicted for medicare fraud, brought an
action for extortion and for declaratory and injunctive relief against Brenda
Taylor, the federal prosecuting attorney, Alan J. Peters, the federal
investigator assigned to prepare the criminal case against Mr. Lawrence, and
Larry Pozner, Mr. Lawrence’s own defense attorney. He alleged that the
defendants conspired to violate his constitutional rights and violated the
federal Racketeer Influenced and Corrupt Organization Act (RICO) statutes. He
also requested a show cause order as to why defendant Taylor should not be
disciplined and an order requiring her to explain how she determined that his
indictment should allege Medicare/Medicaid overbilling of $219,000 instead of a
lesser amount.

The district court dismissed the entire action pursuant to Fed. R. Civ. P.
12(b)(6) for several reasons. We review the court’s dismissal of the complaint
de novo, accepting as true all well-pleaded allegations and affirming
only if it appears beyond doubt that Mr. Lawrence “can prove no set of facts in
support of his claim which would entitle him to relief.” Sutton v. Utah
State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(quotation omitted).

Using this standard, we have carefully reviewed the district court’s order,
and for substantially the same reasons as stated in that order, we affirm the
dismissal of Mr. Lawrence’s suit. The district court attempted to explain to Mr.
Lawrence at a hearing that his criminal trial was the proper forum in which to
litigate the allegations in the indictment, and the government correctly argued
that Mr. Lawrence’s complaint simply prematurely alleged a malicious prosecution
case before he had established in his criminal trial that the allegations were
unfounded. See Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)
(holding that in order to maintain a malicious prosecution claim under ? 1983,
plaintiff must allege facts tending to prove the common law elements of
malicious prosecution and that his Fourth Amendment right to be free from
unreasonable seizure has been violated); Walford v. Blinder, Robinson &
Co., 793 P.2d 620, 623 (Colo. Ct. App. 1990) (setting forth essential
elements of malicious prosecution claim in Colorado: (1) defendant was a party
to or assisted in a criminal or civil proceeding against the plaintiff; (2) the
proceeding was resolved in favor of plaintiff; (3) there was no probable cause
for the proceeding; (4) the defendant was actuated by malice in instituting the
proceedings; and (5) the plaintiff was damaged thereby). Contrary to Mr.
Lawrence’s claim, the district court did not take the position that a
prosecuting attorney “who places a completely false figure . . . on an
indictment . . . in order to render a defendant in terrorem is not
guilty of anything.” Appellant’s Br. at 6 (emphasis in original).

We also reject Mr. Lawrence’s claim that the court’s use of the word
“possible” in a sentence describing Ms. Taylor’s participation in the criminal
case proves that the district court’s order was written either by a law clerk
without knowledge of the true facts or as a result of the court’s bias against
pro se litigants. See id. at 3. The context clearly indicates that the
court was describing who the defendants in the lawsuit were, with the word
“possible” explaining that Ms. Taylor’s job initially was to determine whether
criminal charges against Mr. Lawrence should be filed.

Mr. Lawrence likewise misinterprets the requirements of a prima facie showing
of a RICO violation and the district court’s statements made in conjunction with
its ruling. Mr. Pozner withdrew as Mr. Lawrence’s attorney on May 12, 1998.
See R. Doc. 1, Ex. B3. Mr. Lawrence states that he was indicted on June
23, 1999. See Appellant’s Br. at 3. Mr. Lawrence alleged that Mr.
Pozner violated 18 U.S.C. ? 1503 (obstructing justice by trying to influence a
juror or officer of the court) as part of his RICO claim. In dismissing the RICO
action against Mr. Pozner, the district court stated that a violation of ? 1503
must relate to a pending federal action against the plaintiff, and no such
action was pending. On appeal, Mr. Lawrence argues that the criminal action
against him satisfied the “pending” requirement. However, Mr. Lawrence had not
even been indicted at the time he alleged that Mr. Pozner violated ? 1503, thus
the district court properly dismissed the RICO claim.

The judgment of the United States District Court for the District
of Colorado is AFFIRMED.

Entered for the Court

Robert H. Henry

Circuit Judge

---

FOOTNOTES
Click footnote number to return to
corresponding location in the text.

^*. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral
estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.

Lee Med., Inc. v. Beecher (Summary)

PEER REVIEW PRIVILEGE

Lee Med., Inc. v. Beecher, No. M2008-02496-SC-S90-CV (Tenn. May 24, 2010)

The Supreme Court of Tennessee partially vacated a trial court’s discovery orders and held that the Tennessee peer review privilege did not apply to an audit report considering whether a health system should stop outsourcing the provision of vascular access services, because the report did not involve a physician’s conduct, competence, or ability to practice medicine.

In the case, the health system’s hospitals, relying on the report, which was prepared by a third party, cancelled their contracts with a vascular access services provider to which it was outsourcing these services. The report demonstrated that it would be cheaper to provide vascular access services in-house. The provider filed suit, asserting numerous claims, including breach of contract, against several parties involved in preparing the report ("defendants"). The provider, as part of an "aggressive discovery campaign," filed a motion to compel production of the report. The defendants argued that the report was protected by the state peer review privilege. The lower court concluded that the audit report was protected by the privilege. The Supreme Court of Tennessee disagreed. Although it found that the committees that reviewed the report and made the decision to provide vascular services in-house were peer review committees under the broad definition of peer review committee within the statute, the court concluded that the proceedings in which the committees reviewed the report were not peer review proceedings because they were not related to a physician’s professional conduct or competence.

Dissenting Opinion

 

Lee Mem’l Health Sys. v. Jeffery (Summary)

PEER REVIEW PRIVILEGE – DISCOVERABILITY

Lee Mem’l Health Sys. v. Jeffery, No. 2:08-cv-843-FtM-29DNF (M.D. Fla. Mar. 30, 2010)

A Florida hospital system filed a lawsuit against two separate defendants, claiming that Florida’s controversial “Amendment 7” was invalid on a number of grounds. The hospital system also sought to have any other individuals who may seek peer review documentation from it in the future certified as a class.

The United States District Court, Middle District of Florida, dismissed one of the defendants on the grounds that the lawsuit was moot as to that defendant. Because the underlying medical malpractice action had been settled and there were no pending discovery disputes, the court held that there was no pending case or controversy. For the same reasons, the court held that the lawsuit was not moot as to the second defendant and should continue (i.e., the underlying medical malpractice case was still pending and there were pending discovery requests and disputes).

Finally, after analyzing the rules for certifying a class, the court refused to do so in this case and dismissed the hospital system’s motion in this regard.

Lawson v. Fortis Ins. Co.

Lawson v. Fortis Ins. Co.
No. 00-6538 (E.D.Pa. June 20, 2001)

A decedent child’s parents sued on breach of contract and bad faith theories
against an insurance company. The insurance company, citing the pre-existing
clause of the policy, denied coverage for the child’s leukemia treatment. Both
the parents and the insurance company filed countermotions for summary judgment.
The United States District Court for the Eastern District of Pennsylvania ruled
in favor of the parents on the breach of contract issue, but ruled in favor
of the insurer on the bad faith claim.

The court ruled that when an insurance policy is ambiguous, the ambiguity must
be resolved against the insurer. According to the district court, the interpretation
of the pre-exiting condition clause of the policy set forth by both the parents
and the insurer was reasonable. The parents argued that because the child was
not diagnosed with leukemia, the illness was not a pre-existing condition. Conversely,
the insurance company argued that because the child was treated for symptoms
of leukemia, the child had a pre-existing condition. Because of this ambiguity,
the district court ruled in favor of the parents. The district court also dismissed
the bad faith claim charged against the insurer, ruling that, because there
were two reasonable interpretations of the pre-existing condition, the insurer
had not acted in bad faith by denying payment for leukemia treatment.

Lee Mem’l Health Sys. v. Jeffery (Full Text)

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 1 of 17

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LEE MEMORIAL HEALTH SYSTEM,
Plaintiff,

Case No. 2:08-cv-843-FtM-29DNF

vs.
DAVID L. JEFFERY as Personal
Representative of the Estate of
Percy l. Jeffery, Jr., MARIA
JEFFERY, and JUDITH THORTON, as
Personal Representative of the
Estate of Kenneth Thornton,
Defendants.
___________________________________

OPINION AND ORDER
This matter comes before the Court on the following motions:
(1) defendants David L. Jeffery, as Personal Representative of the
Estate of Percy L. Jeffery, Jr., and Maria Jeffery’s Renewed Motion
for Abstention (Doc. #53); (2) defendant Judith Thornton’s, as
Personal Representative of the Estate of Kenneth Thornton, Renewed
Motion for Abstention (Doc. #54); and (3) plaintiff Lee Memorial
Health System’s Motion to Certify Defendant Class. (Doc. #64.)
The Court previously raised the issue of its jurisdiction,
questioning whether the case had been rendered moot by actions
occurring after its filing. The Court heard oral arguments on
these three topics on March 19, 2010.
I.

Plaintiff Lee Memorial Health System (“Lee Memorial”) is a
political subdivision of the State of Florida, created by the

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 2 of 17

Florida Legislature to operate, control and maintain public
hospitals and other healthcare facilities in Southwest Florida.
Lee Memorial operates a number of health care facilities in
Southwest Florida, including Lee Memorial Hospital, Cape Coral
Hospital, HealthPark Medical Center, Southwest Florida Regional
Medical Center, and Gulf Coast Hospital. As part of its routine
operations, Lee Memorial engages in several types of self-critical
analysis, including physician credentialing, peer review, risk
management activities, and quality review and assurance measures.
Prior to November 2, 2004, the law in Florida was clear that
health care facilities in Florida such as Lee Memorial were not
required to disclose “confidential information and records” in
certain situations, such as pursuant to investigations of medical
malpractice. On November 2, 2004, however, the Florida electorate
approved, through the ballot initiative process, an amendment to
the State Constitution titled “Patients’ Right to Know About
Adverse Medical Incidents” (Amendment 7). Amendment 7, as codified
at Article X, Section 25 of the Florida Constitution, provides:
(a) In addition to any other similar rights provided
herein or by general law, patients have a right to have
access to any records made or received in the course of
business by a health care facility or provider relating
to any adverse medical incident.
(b) In providing such access, the identity of patients
involved in the incidents shall not be disclosed, and
any privacy restrictions imposed by federal law shall be
maintained.
(c) For purposes of this section, the following terms
have the following meanings:
-2-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 3 of 17

(1) The phrases “health care facility” and “health care
provider” have the meaning given in general law related
to a patient’s rights and responsibilities.
(2) The term “patient” means an individual who has
sought, is seeking, is undergoing, or has undergone care
or treatment in a health care facility or by a health
care provider.
(3) The phrase “adverse medical incident” means medical
negligence, intentional misconduct, and any other act,
neglect, or default of a health care facility or health
care provider that caused or could have caused injury to
or death of a patient, including, but not limited to,
those incidents that are required by state or federal
law to be reported to any governmental agency or body,
and incidents that are reported to or reviewed by any
health care facility peer review, risk management,
quality assurance, credentials, or similar committee, or
any representative of any such committees.
(4) The phrase “have access to any records” means, in
addition to any other procedure for producing such
records provided by general law, making the records
available for inspection and copying upon formal or
informal request by the patient or a representative of
the patient, provided that current records which have
been made publicly available by publication or on the
Internet may be “provided” by reference to the location
at which the records are publicly available.
FLA. CONST. art. X, § 25. On June 20, 2005, the Florida Legislature
passed an enabling act, codified at Florida Statutes § 381.028, to
implement Amendment 7. On March 6, 2008, the Florida Supreme Court
upheld Amendment 7 against various challenges, holding among other
things that Amendment 7 is self-executing, could be applied
retroactively to records existing prior to its effective date of
November 2, 2004, and that such retroactive application did not
violate the due process rights of hospitals. Fla. Hosp. Waterman,
Inc. v. Buster, 984 So. 2d 478 (Fla. 2008). A number of Florida

-3-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 4 of 17

courts have previously addressed, and continue to address, various
issues involving Amendment 7.
Lee Memorial routinely receives requests for documents falling
within the ambit of Amendment 7, i.e., “records made or received in
the course of business by a health care facility or provider
relating to any adverse medical incident.” These include
litigation discovery requests as well as requests in administrative
proceedings, pre-suit proceedings, and outside of litigation. Lee
Memorial declines to produce responsive documents voluntarily based
upon its legal belief as to the invalidity of Amendment 7.
The Second Amended Complaint (Doc. #46), the operative
pleading in this case, contains five counts: A request for a
declaratory judgment that Amendment 7 is preempted by the Health
Insurance Portability and Accountability Act (HIPAA) (Count I) and
is preempted by the Health Care Quality Improvement Act (HCQIA)
(Count II); a request for a declaratory judgment that the
retroactive application of Amendment 7 violates the Contract Clause
of the United States Constitution (Count III); a request for
declaratory judgment that the federal and state “work product
privilege” prevent disclosure of information sought pursuant to
Amendment 7 (Count IV); and a request for preliminary and permanent
injunctions that plaintiff need not comply with the Amendment 7

-4-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 5 of 17

requests for information by defendants Jeffery, Thornton, and Brea1
(Count V). (Doc. #46, pp. 20-21.)
II.
Federal courts are courts of limited jurisdiction, Keene Corp.
v. United States, 508 U.S. 200, 207 (1993), and a federal court is
obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking. Cadet v. Bulger, 377 F.3d 1173, 1179
(11th Cir. 2004); May v. Capote, 149 Fed. Appx. 913, 915-16 (11th
Cir. 2005). Under Article III of the United States Constitution,
the subject matter jurisdiction of federal courts extends only to
“cases or controversies.” Bowen v. First Family Fin. Servs., 233
F.3d 1331, 1339 (11th Cir. 2000). “An actual controversy must be
extant at all stages of review, not merely at the time the
complaint is filed.” Alvarez v. Smith, 130 S. Ct. 576, 580
(2009)(internal citations and quotations omitted). “If a suit is
moot, it cannot present an Article III case or controversy and the
federal courts lack subject matter jurisdiction to entertain it.
[ ] Mootness can occur due to a change in circumstances, or . . .
a change in the law.” Seay Outdoor Adver., Inc. v. City of Mary
Esther, Florida, 397 F.3d 943, 946 (11th Cir. 2005)(internal

Defendants Kimberly Brea and Alex Brea, individually and as
1
parents and natural guardian of Michelle Brea, were named parties
in the superceded Amended Complaint. (Doc. #3.) The Brea
defendants are not, however, named parties in the operative Second
Amended Complaint (Doc. #46), despite a singular reference to them
on page 21 of the Second Amended Complaint and their inclusion in
the case caption.

-5-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 6 of 17

citations omitted); Troiano v. Supervisor of Elections in Palm
Beach County, Florida, 382 F.3d 1276, 1281 (11th Cir. 2004). A
case is moot when the issue presented is no longer live, the
parties lack a legally cognizable interest in its outcome, or a
court decision could no longer provide meaningful relief to a
party. Troiano 382 F.3d. at 1281-82. Whether a case is moot is a
question of law, Troiano, 382 F.3d at 1282, and the party urging
dismissal bears the heavy burden of establishing mootness. Beta
Upsilon Chi Upsilon Chapter v. Machen, 586 F.3d 908, 916 (11th Cir.
2009).
The Court initially raised the issue of whether this case was
moot as to the two named defendants. (Doc. #96.) After an initial
discussion with counsel at a pretrial conference (Doc. #101), the
Court scheduled oral arguments on the issue. During oral
arguments, the parties agreed that the case is not moot as to
defendant Judith Thornton, but disagreed as to whether the case is
moot as to the Jeffery defendants. Defendants have recently filed
a Motion to Dismiss (Doc. #107) arguing that the case is moot as to
both defendants. For the reasons stated below, the Court finds
that the case is not moot as to defendant Thorton, but is moot as
to the Jeffery defendants.
A. Jeffery Defendants
The Second Amended Complaint alleged that the Jeffrey
defendants (Jeffreys) were plaintiffs in the state court matter of
Jeffery, et al. v. Assocs. in Gen. & Vascular Surgery, et. al.,
-6-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 7 of 17

Case No. 06-CA-000907, in the Circuit Court for the Twentieth
2
Judicial Circuit in and for Lee County, Florida. The state court
case consisted of a medical malpractice suit brought by the
Jefferys against various entities and physicians relating to
medical care provided to Percy L. Jeffery, Jr., at Cape Coral
Hospital. (See Doc. #3-10.) Lee Memorial was not named as a party
to that suit.
On May 11, 2008, the Jefferys, through their counsel, served
a subpoena duces tecum on Lee Memorial requesting various documents
(see Doc. #3-11), including documents within the scope of Amendment
7. (Doc. #46, ¶¶ 45-52; Doc. #55, p. 3.) The validity of this
subpoena remained contested in the state court proceeding. On
November 23, 2009, there was a voluntary dismissal of the state
court case due to settlement. Counsel for the state-court
plaintiffs has confirmed to counsel for Lee Memorial that there are
no longer any pending discovery requests of any kind directed at
Lee Memorial or any other entity in this case. (Doc. #106-1.)
The Court finds the issue regarding access to Amendment 7
documents in the Jefferys case is no longer live and that the
Jefferys currently lack a legally cognizable interest in its
outcome. The Jeffery case has been settled without disclosure of
the purported Amendment 7 documents, the state case is closed,
there is no longer a request for disclosure pending, and there is

It appears that the Second Amended Complaint incorrectly
2
lists the Case Number as: 05-CA-000907. (See Doc. #3-10.)
-7-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 8 of 17

no indication that such a request may be made in the future as to
the patient at issue in that case. While the parties may dispute
the lawfulness of Amendment 7,
that dispute is no longer embedded in any actual
controversy about the plaintiffs’ particular legal
rights. Rather, it is an abstract dispute about the law,
unlikely to affect these plaintiffs any more than it
affects other [ ] citizens. And a dispute solely about
the meaning of a law, abstracted from any concrete actual
or threatened harm, falls outside the scope of the
constitutional words “Cases” and “Controversies.”
Alvarez, 130 S. Ct. at 580-81 (internal citations omitted).
The Jeffery matter is not such an exceptional situation that
the “capable of repetition while evading review” exception is
applicable. Nothing suggests that the Jeffery defendants will
again seek Amendment 7 documents in connection with this patient
(who is deceased), and the lawfulness of the amendment does not
evade review in light of the others who have made such requests.
Id. at 581.
Additionally, the voluntary cessation doctrine does not apply
in this case. While the mere voluntary cessation of allegedly
illegal conduct does not moot a case, the “basis for this doctrine
is a concern that a defendant who voluntarily ceases an activity is
‘free to return to his old ways.’” Beta Upsilon Chi Upsilon
Chapter, 586 F.3d at 916 (citation omitted). That concern is not
applicable in this case, since the patient is deceased and his
representative has settled the claim.

-8-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 9 of 17

Accordingly, the federal case as to the Jeffery defendants is
moot, and those defendants are dismissed from this case.
B. Thornton Defendant
The Second Amended Complaint alleged that on June 26, 2008,
defendant Thornton sent a pre-suit Notice of Intent to Initiate
Litigation for Medical Malpractice to Lee Memorial, seeking
documents covered under Amendment 7. (See Doc. #46, ¶¶ 53-56; Doc.
#3-12.) Lee Memorial alleged that it objected to the request to
the extent that it sought documents covered under Amendment 7, and
that the Thornton request of Lee Memorial was still pending as of
the filing of the Second Amended Complaint. No Amendment 7
documents were produced by Lee Memorial pursuant to the pre-suit
request, but a medical malpractice case was filed on October 16,
2008 in state court against Lee Memorial and others. That case is
still pending in state court, and the docket sheet reflects
continuing discovery efforts. (Doc. #100-1, Exh. E.) On March 24,
2010, counsel for Judith Thornton wrote to Lee Memorial’s counsel
and officially withdrew her Notice of Intent to the extent it in
any way implicated Amendment 7. (Doc. #107-2.) Ms. Thornton’s
counsel did not withdraw any discovery request made during the
litigation which implicates Amendment 7 documents.
The Court finds the case is not moot as to defendant Thornton.
Unlike the situation with Jeffery, the underlying medical
malpractice case is continuing, there are on-going discovery
requests in that proceeding, there has been no attempt to disclaim
-9-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 10 of 17

any interest in Amendment 7 documents in that case, and there is
every realistic probability that Amendment 7 documents exist and
will or have been requested in the on-going litigation.
III.
This Court has subject matter jurisdiction over the claims
against Thornton in the Second Amended Complaint pursuant to 28
U.S.C. § 1331, which provides jurisdiction over claims arising
under federal law. Having found that the case is not moot as to
Thornton, and therefore remains justiciable, the Court next turns
to defendant’s argument that the Court should abstain from
exercising its jurisdiction under Younger v. Harris, 401 U.S. 37
(1971) and its progeny, specifically Middlesex County Ethics Comm.
v. Garden State Bar Ass’n, 457 U.S. 423 (1982).
The well established general rule is that a federal court has
a “virtually unflagging” duty to adjudicate claims within its
jurisdiction. New Orleans Pub. Serv., Inc. v. Council of New
Orleans, 491 U.S. 350, 359 (1989)(NOPSI). The Younger doctrine is
“an extraordinary and narrow exception to the duty of a District
Court to adjudicate a controversy properly before it.” Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 813
(1976) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S.
185, 188-89 (1959)).
In Younger v. Harris, a federal plaintiff challenged the
constitutionality of a state statute under which he was being
prosecuted in state court as a defendant. The Supreme Court
-10-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 11 of 17

concluded that the state criminal proceeding offered a sufficient
forum for the plaintiff to raise his constitutional defense, and
abstained from hearing plaintiff’s claim. Younger held that based
on concepts of federalism, a federal district court must refrain
from enjoining pending criminal state court proceedings except
under certain special circumstances.
The Supreme Court has expanded Younger abstention to strictly
civil proceedings which implicate state courts’ “important
interests in administering certain aspects of their judicial
systems.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12-13 (1987)
(requirement for the posting of bond pending appeal); Juidice v.
Vail, 430 U.S. 327, 334 (1977) (state contempt process).
Nonetheless, the Supreme Court has made clear that the abstention
doctrine is not triggered in a civil context unless the federal
injunction requested would create an “undue interference with state
proceedings.” NOPSI, 491 U.S. at 359. In addition, the Supreme
Court has instructed that Younger only applies where the state
proceeding at issue involves “orders that are uniquely in
furtherance of the state courts’ ability to perform their judicial
functions . . . it has never been suggested that Younger requires
abstention in deference to a state judicial proceeding reviewing
legislative or executive action.” NOPSI, 491 U.S. at 368; Wexler
v. Lepore, 385 F.3d 1336, 1338-39 (11th Cir. 2004) (holding that a
pending state civil action does not require the federal court to
abstain “unless the requested federal relief would result in
-11-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 12 of 17

meticulous and burdensome federal oversight of state court or
court-like functions”).3
Thus, a federal court may abstain from granting injunctive
relief under Younger where: (1) the state proceeding is ongoing;
(2) the proceeding implicates an important state interest; and (3)
there is an adequate opportunity to raise a constitutional
challenge in the state court proceedings. Green v. Jefferson
County Comm’n, 563 F.3d 1243, 1250 (11th Cir. 2009); Middlesex
County Ethics Comm’n, 457 U.S. at 432-35. The Supreme Court
created exceptions to Younger abstention, however, allowing a
federal court to issue an injunction when (1) there is evidence of
state proceedings motivated by bad faith, (2) irreparable injury
would occur, or (3) there is no adequate alternative state forum
where the constitutional issues can be raised. Younger, 401 U.S.
at 46-49.
The Court concludes that it should not abstain in this case.
The pre-suit request does not justify abstention because there was
no pending case from which to abstain at the time. While there is
now a pending medical malpractice case, defendant has not

While Younger involved an injunction, it has been extended to
3
declaratory relief which would effectively enjoin a pending state
criminal case. Samuels v. Mackell, 401 U.S. 66, 73 (1971); Rowe v.
Griffin, 676 F.2d 524, 525-26 (11th Cir. 1982)(citing Younger, 401
U.S. 37 and Samuels, 401 U.S. 66). The Eleventh Circuit has also
applied Younger to a request for declaratory judgment which would
have the effect of enjoining a state court from enforcing its
judgment. Old Republic Union Ins. Co. v. Tillis Trucking Co.,
Inc., 124 F.3d 1258 (11th Cir. 1997).
-12-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 13 of 17

identified any specific order which a decision in this federal case
would interfere with, much less establish an undue interference
with the state proceedings. Therefore, defendant’s request to
abstain from deciding the issues presented is denied.
IV.
The final issue is plaintiff’s motion to certify a defendant
class. Lee Memorial seeks certification of the following class of
defendants: “All individuals who have made or may in the future
make a request for documents pursuant to or covered by Amendment 7
to Lee Memorial Health System, including any facility or provider
under its control.” (Doc. #64, p. 5.) Lee Memorial argues that it
has satisfied all prerequisites of Rule 23(a) as well as the
requirements of Rule 23(b)(2).
Lee Memorial has provided scant authority with regard to
certifying a class of defendants, in contrast with the usual
posture where a class of plaintiffs seek certification. The Court
agrees with Lee Memorial, however, that such a defendant class is
authorized by Federal Rule of Civil Procedure 23. In setting forth
the prerequisites for a class action, Rule 23(a) states in
pertinent part that “[o]ne or more members of a class may sue or be
sued as representative parties on behalf of all members only if: .
. .” FED. R. CIV. P. 23(a)(emphasis added). Similarly, Rule 23(b)
provides that “[a] class action may be maintained if Rule 23(a) is
satisfied and if: (1) prosecuting separate actions by or against
individual class members would create a risk of: . . .” FE D. R.
-13-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 14 of 17

CIV. P. 23(b)(emphasis added). Defendant classes have been
recognized, without review, by the Supreme Court. Zablocki v.
Redhail, 434 U.S. 374, 380 n.6 (1978). Defendants do not argue
that defendant class actions can not be authorized, but rather
argue that they are rarely authorized and require additional
scrutiny. The Court agrees with this proposition as well.
The rules for certification of a class are well settled in the
Eleventh Circuit, albeit in the context of a class of plaintiffs.
“To obtain class certification under Rule 23, the Plaintiffs must
meet each of the requirements specified in Rule 23(a), as well as
at least one of the three subsections of Rule 23(b). [ ] Rule 23(a)
requires plaintiffs to demonstrate that the proposed class
satisfies the prerequisites of numerosity, commonality, typicality,
and adequacy of representation.” Babineau v. Fed. Express Corp.,
576 F.3d 1183, 1189-90 (11th Cir. 2009)(internal citations and
quotations omitted). Rule 23(b) provides three alternatives, one
of which must be satisfied by the moving party.
“Among the prerequisites to the maintenance of a class action
is the requirement of Rule 23(a)(4) that the class representatives
‘will fairly and adequately protect the interests of the class.’ ”
Lyons v. Georgia-Pacific Corp. Salaried Employees Ret. Plan, 221
F.3d 1235, 1253 (11th Cir. 2000). This requirement applies to both
the named plaintiff and counsel, Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 626 n.20 (1997), and is intended in part to protect
the legal rights of absent class members. “Because all members of
-14-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 15 of 17

the class are bound by the res judicata effect of the judgment, a
principal factor in determining the appropriateness of class
certification is the forthrightness and vigor with which the
representative party can be expected to assert and defend the
interests of the members of the class.” Lyons, 221 F.3d at 1253
(internal quotations omitted). A court is required to “undertake
a stringent and continuing examination of the adequacy of
representation by the named class representative[ ] at all stages
of the litigation where absent members will be bound by the court’s
judgment.” Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1374
(11th Cir. 1984). The party seeking certification bears the burden
of establishing all elements of Rule 23(a). London v. Wal-Mart
Stores, Inc., 340 F.3d 1246, 1253 (11th Cir. 2003).
Contrary to the usual situation, the class representative in
a defendant class does not voluntarily seek such designation, but
is effectively selected by the opposing party. There is no showing
that Thornton’s counsel is appropriate for a class action, other
that the law firm represents itself as an appellate firm in its
letter head. While the firm knows the area, having been counsel of
record in Buster before the Florida Supreme Court, this does not
necessarily qualify it to be class counsel. Thornton herself has
made clear she does not wish to be class representative, and
plaintiff has shown nothing which convinces the court of her
qualifications in any event.

-15-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 16 of 17

Additionally, the Court is not persuaded by plaintiff’s
argument that the Attorney General for the State of Florida is
providing adequate representation to the class of defendants. The
Attorney General entered a Notice of Appearance pursuant to Florida
Statute § 86.091 on November 25, 2008. (Doc. #9.) This statute
does not make the Attorney General a party, Martin Mem’l Med. Ctr.,
Inc. v. Tenet Healthsystem Hosps., Inc., 875 So. 2d 797, 799-801
(Fla. 1st DCA 2004), or provide that the Attorney General will
represent the named parties. Rather, it merely provides that the
Attorney General is “entitled to be heard” where a declaratory
judgment action seeks to declare a statute, charter, ordinance or
franchise unconstitutional. In this case the Attorney General has
adopted motions filed by defendants’ counsel (Docs. #27, 93),
signed a Case Management Report (Doc. #28), and done virtually
nothing else of record. No one from the attorney general’s office
has appeared for the last two hearings, and that office has been
described as simply monitoring the actions of defendant’s counsel.
Accordingly, plaintiff’s motion to certify a class of defendants is
denied.

V.
The magistrate judge has previously entered an Order (Doc.
#45) giving plaintiff fourteen (14) days from the resolution of the
class certification issue to add parties. That time period starts
with the filing of this Opinion and Order.
Accordingly, it is now

-16-

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 17 of 17

ORDERED:
1. Defendants David L. Jeffery, as Personal Representative of
the Estate of Percy L. Jeffery, Jr., and Maria Jeffery’s Renewed
Motion for Abstention (Doc. #53) is DENIED.
2. Defendant Judith Thornton’s, as Personal Representative of
the Estate of Kenneth Thornton, Renewed Motion for Abstention (Doc.
#54) is DENIED.
3. Plaintiff Lee Memorial Health System’s Motion to Certify
Defendant Class (Doc. #64) is DENIED.
4. The Second Amended Complaint is DISMISSED as to defendants
David L. Jeffery, as personal representative of the estate of Percy
I. Jeffery, Jr., and Maria Jeffery since the case is moot as to
these defendants.
DONE AND ORDERED at Fort Myers, Florida, this 30th day of
March, 2010.

Copies:
Counsel of record

-17-

Lee Mem’l Health Sys. v. Smith (Summary)

DISCLOSURE OF MEDICAL RECORD INFORMATION

Lee Mem’l Health Sys. v. Smith, No. 2D10-741 (Fla. Dist. Ct. App. July 16, 2010)

A Florida court of appeal quashed a protective order filed against a hospital that had prohibited the hospital from having private communications with its employed physicians about the patient care being provided to the patient who had sued the hospital. The court found that the physician-patient privilege does not apply to communications between a hospital and its employed physicians because no actual "disclosure" of patient confidential information occurs in the employment relationship under state law.

Parents had filed a medical malpractice lawsuit against a hospital for negligence in treating their infant daughter. The parents sought an order prohibiting the hospital and its legal counsel from having private communications about the child’s treatment with their employed physicians, from whom their daughter was currently receiving follow-up medical care.

The court held that a physician does not disclose or reveal a patient’s confidential medical information within the meaning of the Florida patient confidentiality statute by discussing information obtained in the course of employment with employed physicians who are acting within a certain chain of health care communication. A physician would not be allowed to disclose patient information to all hospital employees; the physician-patient privilege would still preclude disclosure to an employee such as a security guard.

 

Leal v. Secretary, U.S. Dep’t of Health & Human Serv.

[PUBL ISH ]

IN THE UN ITED STATES COURT O F A PPEALS
FILED
FOR THE ELEVENTH C IRCU IT
U.S. COURT OF APPEALS
________________________
ELEVENTH CIRCUIT
SEPT 22, 2010
JOHN LEY
CLERK

N o . 09 -15727
_______________________

D . C . D ocke t N o . 08 -01062 -CV -ORL -22 -G JK

JORGE J . LEAL ,
Jorge J . L ea l, M .D .,

versus

SECRETARY , U .S . DEPARTM ENT O F
HEALTH AND HUMAN SERV ICES ,
and h is Successo rs ,
UN ITED STATES DEPARTM ENT O F
HEALTH AND HUMAN SERV ICES ,
NAT IONAL PRACT IT IONER DATA BANK ,
an En tity o f and Run by the U .S .
D epar tm en t o f H ea lth and H um an
S erv ices ,

P la in tiff-A ppe llan t,

D efendan ts-A ppe llees .

________________________

A ppea l from the U n ited S ta tes D istr ic t Cou rt
fo r the M idd le D istr ic t o f F lorida
_________________________

(S ep tember 22 , 2010 )

*
B efo re EDMOND SON and CARNES , C ircu it Judges , and GOLDBERG , Judge .

CARNES , C ircu it Judge :

O ne day D r . Jo rge J . L ea l, a u ro log ica l c lin ic ian and surgeon , w as w a iting

for the opera ting room a t C ape C anavera l H osp ita l in Cocoa B each , F lo r ida to

becom e availab le . I t w as , as the doc to r w ou ld la ter descr ibe it, “a very long day .”

A nd no t a good one fo r h im . Instead , it appears that, like A lexander in the c lassic

ch ild ren ’s sto ry , D r . L ea l w as hav ing “a terr ib le , ho rr ib le , no good , very bad day .” 1

A nd at around 6 :30 p .m ., he w as to ld tha t h is use o f the opera ting room w as go ing

to be de layed (fo r 20 m inu tes as it tu rned ou t). A pparen tly , tha t w as the fina l

straw fo r h im .

W ha t D r . L eal d id af ter he w as to ld tha t he w ou ld have to w ait to use the

opera ting room led the H osp ita l to suspend h is c lin ica l p r iv ileges for a per iod o f

six ty days and to f ile a repo r t exp la in ing w hy . To summ ar ize , in co lloqu ia l term s ,

tha t repo r t’s descr ip tion o f D r. L ea l’s conduct: he p itched a f it. M o re spec if ica lly ,

the H osp ita l repor ted tha t D r . L ea l becam e so en raged tha t he b roke a te lephone , he

sha ttered the g lass on a copy m ach ine, he shoved a m e ta l cart in to the doo rs o f the

opera ting su ite so hard tha t it dam aged one o f them , he th rew jelly beans dow n the

Honorable Richard W. Goldberg, Judge, United States Court of International Trade,
*
sitting by designation.

1

Judith Viorst, Alexander and the Terrible, Horrible, No Good, Very Bad Day (1972).

2

ha llw ay in the su rg ica l su ite , he “f lung a m ed ical char t to the ground” w hen a nu rse

asked h im fo r w r itten au tho r iza tion to p roceed w ith su rgery , and he “verbally

abused a nu rse m anager” by ra ising h is vo ice , using p ro fan ity , and calling her a

liar . A cco rd ing to the repor t, D r . L ea l’s “v io len t and unpro fessiona l ac tions” on

tha t occasion “caused var ious m embers o f the nu rsing and techn ica l staff to

announce [ that] they w ere fearfu l o f w o rk ing w ith h im in the fu tu re .”

The H osp ita l f iled its repo r t o f the adverse ac tion taken against D r . L ea l w ith

the Secre tary o f the D epar tm en t o f H ea lth & H um an S erv ices , as it fe lt compe lled

to do under the H ea lth C are Q ua lity Imp rovemen t A c t, 42 U .S .C . § 11101 et. seq .

The S ecre tary inc luded the repor t in the N a tional P rac titioner D a ta B ank , w h ich

w as se t up under the A ct “to co llec t and re lease cer ta in in form a tion re la ting to the

p ro fessiona l compe tence and conduc t o f physic ians , den tists and o ther hea lth care

p ractitioners ,” 45 C .F .R . § 60 .1 (2010 ) .

D r . L eal w as unhappy enough abou t the suspension , and he certa in ly d id no t

w an t a repo r t of it in the N a tiona l P ractitioner D ata B ank w here o ther hosp ita ls

w ou ld have access to it. S ee 42 U .S .C . § 11135 (a) . H e sough t the S ecre tary’s

rev iew o f the repo r t, argu ing tha t it w as no t factua lly accu ra te, and he asked tha t

the repo r t be removed from the D a ta Bank because the H osp ita l’s ac tion against

h im w as no t o f the type tha t shou ld be repo r ted . The Secre tary re jec ted D r . L ea l’s

3

asser tion tha t the repo r t w as no t fac tua lly accu ra te . R e lying on docum en ts

subm itted by D r . Lea l as par t o f h is request fo r S ecre tar ia l rev iew , the S ecre tary

conc luded tha t the repo r t accu ra te ly descr ibed the H osp ita l’s ac tion and “reasons

for action as stated in the [H osp ita l’s] dec ision docum en ts .” The Secre tary a lso

refused D r . L ea l’s dem and to remove the repo r t, exp la in ing tha t “[t]here is no basis

on w h ich to conc lude tha t the repo r t shou ld no t have been f iled in the [D a ta

B ank ].” H e d id a llow D r . L ea l to f ile a response , a copy o f w h ich w ou ld be g iven

to anyone w ho ob ta ined the repo r t itse lf from the D a ta B ank . N o t happy w ith tha t

ou tcome , D r . L eal f iled an ac tion under the A dm in istra tive P rocedure A c t seek ing

a cour t o rder requ ir ing the S ecre tary to remove the repo rt from the D a ta B ank .

The d istr ic t cou r t en tered a judgm en t denying relief , and th is is D r . L ea l’s appea l.

I .

“In A PA ac tions , w e rev iew agency de term ina tions under the ‘arb itrary and

cap r ic ious’ standard , w h ich ‘p rov ides the rev iew ing cou r t w ith very lim ited

d iscre tion to reverse an agency dec ision .’” W arshauer v . So lis , 577 F .3d 1330 ,

1335 (11 th C ir . 2009) (quo ting C ity o f O x fo rd v . FAA , 428 F .3d 1346 , 1351 (11 th

C ir . 2005 )) . “The cour t’s ro le is to ensu re tha t the agency cam e to a rationa l

conc lusion , no t to conduc t its ow n investiga tion and substitu te its ow n judgm en t

for the adm in istra tive agency’s dec ision .” S ierra C lub v . V an A n tw erp , 526 F .3d

4

1353 , 1360 (11 th C ir . 2008 ) (quo ta tion m arks om itted ) ; see a lso M iccosukee T r ibe

o f Ind ians of F la . v . U n ited S ta tes , 566 F .3d 1257 , 1264 (11 th C ir . 2009 )

(exp la in ing tha t “[ t]he arb itrary and cap r ic ious standard is exceed ing ly deferen tia l”

and tha t th is Cou r t is “no t au thor ized to substitu te [ its] judgm en t fo r the agency’s

as long as [ the agency’s] conc lusions are ra tiona l” (quo tation m arks and c ita tions

om itted )) .

II .

In the H ea lth C are Q ua lity Imp rovem en t A c t, Cong ress d irec ted the

S ecre tary o f the D epar tm en t o f H ea lth & H um an S erv ices to p romu lga te

regu la tions estab lish ing “p rocedu res in the case o f d ispu ted accuracy o f the

info rm a tion” in the N a tiona l P rac titioner D a ta B ank . 42 U .S .C . § 11136 (2 ) . U nder

those regu la tions , a physic ian w ho d ispu tes the accu racy of a repo rt can seek

S ecre tar ia l rev iew , see 45 C .F .R . § 60 .16 (c)(2) , w h ich is lim ited to hav ing the

repor t rev iew ed “fo r accu racy o f fac tua l in fo rm a tion and to ensu re tha t the

info rm a tion w as requ ired to be repor ted .” U .S . D ep ’t o f H ea lth & H um an S ervs .,

N a tiona l P rac titioner D a ta B ank G u idebook F -3 (2001 ) ,

h ttp ://www .npdb -h ipdb .hrsa .gov /pubs/gb /N PDB_G u idebook .pd f (“G u idebook”) ;

see also Ch r istensen v . H arr is Cn ty., 529 U .S . 576 , 587 , 120 S .C t. 1655 , 1662–63

(2000 ) (exp lain ing tha t in terp re ta tions con tained in en fo rcem en t gu idelines ge t

5

Sk idmo re deference) .

U nder the regu lations , w hen a physic ian seeks S ecre tar ia l rev iew o f a repo r t

“the S ecre tary . . . rev iew [s] the w r itten in fo rmation subm itted by bo th par ties .” 45

C .F .R . § 60 .16 (c)(2 ) ; see a lso G u idebook , a t F -3 (exp lain ing tha t a physic ian

cha lleng ing a repo r t’s fac tua l accu racy must “[s]ubm it docum en ta tion

substan tia ting tha t the repo r ting en tity’s in fo rm a tion is inaccu ra te”). A nd tha t

happened in th is case . To show tha t the repo r t w as no t fac tua lly accu ra te , D r . L ea l

subm itted h is ow n aff idav its in w h ich he gave h is version o f the even ts tha t led the

H osp ita l to suspend h is c lin ica l p r iv ileges . A cco rd ing to those aff idav its , he

acc iden ta lly b roke a telephone w hen he tr ipped on its long cord ; he c losed the lid

o f a copy m ach ine w ith “som e fo rce” and the g lass cracked ; he moved a m e ta l car t

tha t w as b lock ing the doo rs o f the opera ting su ite ; he ate je lly beans , som e o f

w h ich m ay have fa llen on the f loo r w hen he tr ied to th row aw ay f lavo rs that he d id

no t like ; and w hen he w as handed a m ed ica l char t by a nu rse som e o f the char t’s

loose papers fe ll to the f loo r . In o ther w o rds , th is u ro log ical su rgeon , w ho earns

h is liv ing w ie ld ing a razo r-sharp sca lpe l on som e o f the most de lica te par ts o f the

body , does no t have a bad temper — he is just c lum sy. D r . L ea l d id adm it in h is

aff idav its , how ever , tha t he had on tha t occasion spoken “stern ly” to a nu rse w ho

incorrec tly to ld h im tha t h is pa tien t w as no t cleared fo r surgery . D r . L eal a lso

6

subm itted to the S ecre tary le tters from the H osp ita l’s adm in istrato rs to h im

form a lly stating tha t “in the best in terests o f pa tien t care” h is clin ica l p riv ileges

w ere suspended due to h is “v io len t, th reaten ing and physica lly destructive and

dam ag ing behav io r .” Based on tha t docum en ta tion , the S ecretary de term ined tha t

the H osp ita l’s repo r t w as fac tua lly accu ra te in the re levan t sense .

D r . L eal cha llenges the S ecre tary’s f ind ing . I t is h is position tha t a repo r t is

fac tua lly accu ra te on ly if the adm in istra tive reco rd includes sta temen ts from

eyew itnesses tha t substan tia te the in fo rm a tion in a hosp ita l’s repo r t abou t a

doc to r’s m isconduc t. W ithou t tha t requ irem en t, he con tends tha t a hosp ita l cou ld

un fa ir ly “b lack list” a physic ian by f iling a repo rt in the D a ta B ank based on

conduc t tha t never occu rred . B ecause the H osp ita l d id no t subm it sta tem en ts from

eyew itnesses to back up w ha t it sa id abou t h im , D r . L ea l argues that it w as

arb itrary and cap r ic ious fo r the S ecre tary to f ind tha t the repo r t w as accura te .

D r . L eal’s position m isunderstands the pu rpose of the D a ta B ank and the

scope of the S ecre tary’s rev iew . Cong ress enac ted the H ea lth C are Q ua lity

Imp rovem en t A c t, w h ich led to the crea tion o f the D a ta B ank , af ter f ind ing tha t

there w as “a nationa l need to restr ict the ab ility o f incompe ten t physic ians to move

from S ta te to S ta te w ithou t d isc losu re o r d iscovery of the physic ian ’s p rev ious

dam ag ing or incompe ten t perfo rm ance.” 42 U .S .C . § 11101 . The D a ta B ank

7

p reven ts a physician w ho app lies to becom e a member o f a hosp ita l’s m ed ica l staff

o r fo r clin ica l pr iv ileges from be ing ab le to h ide d isc ip linary ac tions tha t have been

taken aga inst h im . See id . § 11135 (a)(1 ) (requ ir ing a hosp ita l to request

info rm a tion from the D a ta B ank abou t a physic ian w hen the physic ian app lies to be

on the m ed ica l staff o r fo r c lin ica l p r iv ileges) . In fo rm a tion in the D a ta Bank is

in tended “on ly to a lert . . . hea lth care en tities tha t there m ay be a p rob lem w ith a

par ticu lar p rac titioner’s p ro fessiona l compe tence o r conduc t” because the

p ractitioner has been the sub jec t o f a d isc ip linary ac tion . G u idebook , a t A -3 ; see

a lso id . a t E -1 (exp la in ing tha t the “p r inc ipa l pu rpose [o f the D a ta B ank] is to

fac ilita te a comp rehensive rev iew o f p ro fessiona l creden tia ls” (emphasis added )) ;

id . at A -3 (no ting tha t the D ata B ank “p rov ides ano ther resou rce to assist . . .

hosp ita ls[ ] and o ther hea lth care en tities in conduc ting ex tensive , independen t

investigations of the qua lif ica tions o f the health care prac titioners they seek to . . .

h ire , o r to w hom they w ish to g ran t c lin ical priv ileges .”); id . at E -1 (exp la in ing tha t

the D a ta B ank serves as a “f lagg ing system ”) . The D ata Bank con ta ins no t on ly

the hosp ita l’s side o f the sto ry bu t a lso the physic ian ’s response. W ha t the

requesting hosp ita l does w ith the in form ation it ob tains from the D ata Bank is

en tire ly up to tha t hosp ita l. I t cou ld comp le te ly d iscoun t the in fo rma tion , o r it

cou ld back o ff from any p ro fessiona l re la tionsh ip w ith the physic ian , o r it cou ld

8

m ake fu r ther inqu ir ies to de term ine w ha t had actua lly happened .

B ecause in fo rm a tion in the D a ta B ank is in tended on ly to fu lly no tify the

requesting hosp ita l o f d isc ip linary ac tion aga inst a physician and the charges on

w h ich tha t action w as based , the S ecre tary’s rev iew o f in fo rm a tion in the D a ta

B ank is lim ited in scope. The rev iew process does no t p rov ide a physic ian w ith a

p rocedu re fo r cha lleng ing the repor ting hosp ita l’s adverse ac tion . S ee id . a t F -1

(“The d ispu te p rocess is no t an avenue . . . to appea l the under lying reasons o f an

adverse ac tion . . . .”) ; id . a t F -3 (“The S ecre tary does no t rev iew the . . .

app ropr ia teness o f , o r basis fo r , a health care en tity’s p ro fessiona l rev iew action . .

. .”) . N o r does it p rov ide a physic ian w ith a p rocedu re fo r chang ing the a llega tions

abou t the conduct tha t led to the ac tion tha t is repor ted . The S ecre tary rev iew s a

repor t for fac tua l accu racy dec id ing on ly if the repor t accu rate ly descr ibes the

adverse ac tion tha t w as taken aga inst the physic ian and the repo r ting hosp ita l’s

exp lana tion fo r the ac tion , w h ich is the hosp ita l’s sta tem en t o f w ha t the physic ian

d id w rong . S ee 42 U .S .C . § 11133 (a)(3 )(B ) (requ ir ing a hosp ita l to inc lude in the

repor t “a descr ip tion o f the ac ts o r om issions o r o ther reasons fo r the action”) ; see

a lso G u idebook , a t F -4 (g iv ing as examp les o f pertinen t docum en ta tion to p rove

tha t a repo r t is no t fac tually accu ra te : “[ t]he f ind ings o f fac t and recomm enda tions

o f the hea lth care en tity” and “[ t]he f ina l repo r t o f the hear ing pane l o r o ther

9

appe lla te body upon w h ich the descr ip tion o f ac ts o r om issions w as based”) . The

S ecre tary does no t ac t as a fac tf inder decid ing w he ther inc iden ts listed in the repo r t

ac tua lly occu rred o r as an appe lla te body decid ing w he ther there w as suff ic ien t

ev idence fo r the repo r ting hosp ita l to conc lude tha t those ac tions d id occu r. S ee

G u idebook , a t F -1 (exp lain ing tha t the “basis for” the adverse ac tion may no t be

d ispu ted by the physic ian).

D r . L eal’s aff idav its d ispu ted to som e ex ten t the H osp ital’s version o f h is

conduc t. Tha t d ispu te is ou tside the scope o f the S ecre tary’s rev iew . S ee id . The

letters to D r . L ea l from the H osp ita l’s adm in istra to rs , w h ich he subm itted to the

S ecre tary, conf irm ed tha t h is c lin ica l p r iv ileges w ere suspended , and they

con f irm ed tha t the reason fo r the suspension w as that the H osp ita l be lieved he had

engaged in “d isrup tive” and “v io len t, th rea ten ing and physica lly destruc tive and

dam ag ing behav io r .” The in form a tion in the repo r t w as consisten t w ith the charges

ou tlined in the H osp ita l’s le tters to D r . L ea l. The repo r t sta ted tha t h is c lin ica l

p r iv ileges w ere “summ arily suspended . . . due to h is v io len t and unp ro fessiona l

ac tions” and also sta ted in som e de ta il w ha t those ac tions w ere . The consistency

be tw een the H osp ita l’s le tters and its repor t to the D a ta B ank estab lishes the

repor t’s fac tua l accu racy in the on ly sense tha t m a tters under the A c t. The

S ecre tary reasonab ly de term ined tha t the repo r t w as fac tua lly accu ra te in tha t

10

sense .

A s fo r D r . L ea l’s concern abou t an unscrupu lous hosp ita l f iling a repo r t

based on conduc t tha t never occu rred and b lack listing a physic ian , w e have th ree

th ings to say . F irst, the requesting hosp ita l is free to igno re in fo rm a tion in the D a ta

B ank fo r purposes o f m ak ing its h ir ing dec ision or to investiga te it. S econd , a

physic ian w ho is the sub jec t of a repo r t can add a sta tem en t to the repo r t g iv ing h is

side o f the sto ry . G u idebook , at F -1 . O ther than a restr ic tion on inc lud ing “nam es ,

add resses , o r phone numbers ,” the con ten ts of a physic ian ’s sta tem en t are lef t

en tire ly up to the physician . Id . The sta tem en t is inc luded w ith the repo r t and is

sen t to every en tity tha t ge ts the repo r t. Id . Th ird , the D a ta B ank is no t designed to

p rov ide p ro tec tion to physic ians a t a ll costs , inc lud ing the cost o f no t p ro tec ting

fu tu re pa tien ts from p rob lem a tic physic ians .

III .

D r . L eal also challenges the S ecre tary’s de term ina tion tha t the H osp ita l’s 60 –

day suspension of h is c lin ical pr iv ileges w as a repo r tab le even t. U nder the A c t, a

hosp ita l tha t “takes a p rofessiona l rev iew ac tion tha t adverse ly affec ts the c lin ica l

p r iv ileges o f a physic ian for a per iod longer than 30 days” is requ ired to repo r t the

ac tion to the D a ta B ank . S ee 42 U .S .C . § 11133(a)(1)(A ) . A p ro fessiona l rev iew

ac tion is def ined as:

11

an ac tion o r recomm endation of a p ro fessional rev iew body w h ich is
taken o r m ade in the conduc t of pro fessiona l rev iew ac tiv ity , w h ich is
based on the compe tence o r p ro fessiona l conduc t o f an ind iv idua l
physic ian (w h ich conduc t affec ts o r cou ld affec t adverse ly the hea lth
o r w e lfare of a pa tien t or pa tien ts) , and w h ich affec ts (o r m ay affec t)
adverse ly the c lin ica l p r iv ileges . . . o f the physician .

Id . § 11151 (9) (emphasis added ) . D r . L ea l argues tha t he w as no t suspended fo r

conduc t “w h ich . . . affec ts o r cou ld affec t adverse ly the hea lth o r w e lfare o f a

pa tien t o r pa tien ts ,” id ., because no pa tien ts w ere invo lved in the inc iden ts

descr ibed in the adverse action repo r t. A cco rd ing ly , he asser ts tha t the H osp ita l

d id no t take a “p rofessiona l rev iew ac tion” aga inst h im tha t requ ired repo r ting to

the D a ta B ank .

In in terp re ting § 11151 (9 ) , “[o]u r star ting po in t is the language o f the sta tu te

itse lf .” H arr ison v . B enchmark E lecs . H un tsv ille , 593 F .3d 1206 , 1212 (11 th C ir .

2010 ) (quo ta tion m arks om itted ) . If the sta tu to ry tex t is unamb iguous , w e w ill

en force the sta tu te as w r itten and no fu r ther inqu iry is necessary . S ee U n ited S tates

v . D odge , 597 F .3d 1347 , 1352 (11 th C ir . 2010) (en banc) ; see also W arshauer ,

577 F .3d a t 1335 (“If the language a t issue has a p la in and unamb iguous m ean ing

w ith regard to the par ticu lar d ispu te in the case , and the sta tu to ry schem e is

coheren t and consisten t, the inqu iry is over .” (quo ta tion m arks om itted )) .

U nder § 11151 (9 ) , a d isc ip linary ac tion taken aga inst a physic ian qua lif ies as

a p ro fessiona l rev iew ac tion if the physic ian is d isc ip lined fo r conduc t that e ither

12

adverse ly affec ts pa tien t hea lth o r w e lfare , or cou ld do so . S ee 42 U .S .C . §

11151 (9 ) . The p la in language of § 11151 (9 ) m akes it c lear that ac tua l harm to a

pa tien t is no t a p rerequ isite fo r a d isc ip linary ac tion to qua lify as a pro fessiona l

rev iew action . I t is enough tha t a physic ian is d isc ip lined fo r conduc t tha t cou ld

resu lt in harm to a pa tien t. See M oo re v . W illiam sbu rg R eg ’l H osp ., 560 F .3d 166 ,

172 (4 th C ir . 2009 ) (“Th [e] paren the tica l c lear ly imp lies tha t the term ‘p ro fessiona l

conduc t’ is no t lim ited to past m ed ica l conduc t tha t has a lready affec ted patien t

w e lfare . . . . [N ]o th ing in the sta tu te requ ires peer rev iew comm ittees to w a it un til

m ed ica l d isaster str ikes.”) ; G o rdon v . L ew istow n H osp ., 423 F .3d 184 , 203 (3d C ir .

2005 ) (“The p la in language o f the sta tu te ind ica tes the b read th o f ‘conduc t’

encompassed w ith in the def in ition of ‘p ro fessiona l rev iew ac tion ’ by the inc lusion

o f conduc t tha t ‘cou ld affec t adverse ly the hea lth o r w e lfare o f a pa tien t.’” (quo ting

42 U .S .C . § 11151 (9))). The fac t tha t no pa tien ts w ere h it by p ieces o f the b roken

telephone , o r by the sha ttered copy m ach ine g lass , or by the careen ing m e ta l car t,

o r by the f lying je lly beans, o r by the a irbo rne m ed ica l char t, is no t d ispositive .

The H osp ita l w as requ ired to repo r t its d iscip linary ac tion to the D a ta B ank even

though its ha lls w ere no t littered w ith in jured pa tien ts as a resu lt o f D r . L ea l’s very

bad day .

D isrup tive and abusive behav io r by a physic ian , even if no t resu lting in

13

ac tua l or imm ed ia te harm to a pa tien t, poses a ser ious th rea t to pa tien t health o r

w e lfare . A physic ian must w o rk co llabo rative ly w ith o ther m embers of a m ed ica l

staff in o rder to p rov ide qua lity care to patien ts . A hosp ita l is one p lace w here no

one can do h is job a lone , w here be tter teamw o rk m eans better care, and w here

d isrup tive behav io r th rea tens lives . W hen a physic ian becom es enraged and lashes

ou t a t o ther m embers o f the m ed ica l staff, pa tien t w e lfare is endangered . Tha t k ind

o f behav io r in tim ida tes o ther hea lth care w o rkers , d iscou rag ing the k ind o f open

commun ica tion and c lose coopera tion tha t is essen tial to p rov id ing the best care to

pa tien ts . The H osp ital repo r ted tha t as a resu lt o f D r . Leal’s v io len t ou tbu rst som e

o f the nu rses and techn ica l staff w ere afraid to w o rk w ith h im in the fu tu re . Tha t

en tire ly p red ic tab le response is a ser ious p rob lem . S ee L au r ie T arkan , A rrogan t,

A busive , and D isrup tive— and a D oc to r , N .Y . T im es , D ec . 2 , 2008 , at D 1

(repo rting abou t a su rvey of hea lth care w orkers a t 102 nonp ro f it hosp itals

revea ling tha t 18 percen t o f the w o rkers sa id tha t “they knew o f a m istake tha t

occu rred because of an obnox ious doc to r”) ; D av id O . W eber , Fo r S afety’s S ake

D isrup tive B ehav io r M ust be T am ed , The Physic ian Execu tive, S ep t.-O c t. 2004 , a t

17 , h ttp ://ne t.acpe.org /M embersO n ly/pe jou rnal/2004 /S ep temberO c tober /

A r tic les/W eberD av id2 .pd f (no ting tha t in a su rvey o f nu rses, pharm ac ists , and

o ther hosp ita l w orkers , 7 percen t o f those su rveyed had been invo lved in a

14

m ed ica tion erro r du r ing the past year because o f the ir fa ilure to speak up to a

know n in tim idato r abou t d ispensing o r g iv ing a drug ) ; G reta Po r to & R ichard

L auve , D isrup tive C lin ic ian B ehav io r : A P ersisten t Th reat to P a tien t S afe ty , P a tien t

S afe ty & Q ua lity H ea lthcare , Ju ly-A ug . 2006 ,

h ttp ://www .psqh .com /ju laug06 /d isrup tive .h tm l (no ting tha t “stud ies have show n

tha t recip ien ts o f abusive behav io r learn to cope by avo id ing the abuser , even if

th is m eans fa iling to ca ll w hen w arran ted and avo id ing mak ing suggestions tha t

2
m igh t imp rove care”) . The S ecre tary reasonab ly de term ined tha t D r . L ea l’s

repor ted “v io len t and unp ro fessiona l ac tions ,” a lthough no t resu lting in any know n

harm to a pa tien t, is conduc t that “cou ld affec t adverse ly” pa tien t health o r w e lfare .

S ee 42 U .S .C . § 11151 (9 ) .

D r . L eal con tends tha t h is suspension w as no t a repo rtab le even t fo r ano ther

reason . The H osp ita l summ arily suspended h is c lin ica l p riv ileges the day af ter the

inc iden t, and he argues tha t under the A c t summ ary suspensions are to be trea ted

d ifferen tly from o ther p ro fessiona l rev iew ac tions . In o rder fo r a summ ary

suspension to be repo r tab le , he asser ts , it must have been imposed by the hosp ita l

“to p ro tect patien ts from imm inen t danger .” S ee G u idebook , a t E -20 (no ting tha t

In keeping with Eleventh Circuit Internal Operating Procedure 10, “Citation to Internet
2
Materials in an Opinion,” under Federal Rule of Appellate Procedure 36, copies of all of the
internet materials cited in this opinion are available at this Court’s Clerk’s Office.

15

the D epartm en t of H ea lth & H um an S erv ices “assum es tha t hosp ita ls use summ ary

suspensions . . . to p ro tec t patien ts from imm inen t danger, ra ther than fo r reasons

tha t w arran t rou tine p rofessiona l rev iew ac tions”) . H is suspension w as no t

imposed because of imm inen t danger to pa tien ts .

“Imm inen t danger” is no t requ ired before a summ ary suspension is

repor tab le . The term “imm inen t danger” on ly appears in § 11112 o f the A c t, w h ich

sets ou t standards tha t p ro fessiona l rev iew ac tions must comp ly w ith in o rder fo r

those w ho par tic ipa te in them to be immune from liab ility for money damages in

su its b rough t by d isc ip lined physic ians . S ee 42 U .S .C . §11112 ; B ryan v . H o lm es

R eg ’l M ed . C tr., 33 F .3d 1318 , 1321–22 (11 th C ir . 1994 ) (exp lain ing tha t if a

p ro fessiona l rev iew action m eets cer ta in due p rocess and fa irness requ irem en ts the

ac tion ’s partic ipan ts are immune from liab ility for money dam ages in su its b rough t

by the d isc ip lined physic ian ) . S ec tion 11112 does no t govern w hen a summ ary

suspension , w h ich is a type o f p ro fessiona l rev iew ac tion , is repo r tab le .

The p la in language of the A c t requ ires a hosp ita l to repo r t to the D a ta B ank

“a p ro fessiona l rev iew ac tion tha t adverse ly affec ts the c lin ica l p r iv ileges o f a

physic ian fo r a per iod longer than 30 days.” 42 U .S .C . § 11133 (a)(1 )(A ) . A

summ ary suspension is “a p rofessiona l rev iew ac tion .” See a lso G u idebook , E -19

(“A summ ary suspension is repo r tab le if it is: “(1 ) In effec t o r imposed fo r mo re

16

than 30 days; (2 ) B ased on the p ro fessiona l compe tence o r p ro fessiona l conduc t o f

the physician . . . tha t adverse ly affec ts , o r cou ld adverse ly affect, the hea lth o r

w e lfare o f a patien t; [and ] (3) The resu lt o f a p ro fessional rev iew ac tion taken by a

hosp ita l . . . .” (number ing added )) . B ecause D r. L ea l’s suspension p lain ly f its

w ith in § 11133 (a)(1 )(A ), the S ecre tary’s de term ina tion tha t it w as repo r tab le w as

no t arb itrary and cap r ic ious .

AFF IRMED .

17

Edmondson , C ircu it Judge , concu rs in the resu lt.

18

Lee v. Banner Health (Full Text)

COLORADO COURT OF APPEALS

Court of Appeals No.: 08CA0665
Weld County District Court No. 05CV1398
Honorable Daniel S. Maus, Judge

James Lee, M.D.; Jeffrey Lee, M.D.; and Front Range Surgical Specialists, Inc.,
a Colorado corporation,

Plaintiffs-Appellants,

v.

Banner Health, an Arizona non-profit corporation; Banner Health d/b/a North
Colorado Medical Center; Donald Mellman, individually and as a former
employee of Banner Health; Les Fraser, M.D., individually and as a partner in
Greeley Medical Clinic; Rick Kiser, M.D., individually and as a partner in
Greeley Medical Clinic; Lisa Burton, M.D., individually and as a partner in
Surgical Associates of Greeley; Gene O’Hara, as Chief Executive Officer of North
Colorado Medical Center; Peter S. Fine, as a member of the Banner Health
Board of Directors and as Chief Executive Officer and President of Banner
Health; Banner Health Board of Directors; and Appellate Review Committee of
Banner Health,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division I
Opinion by: JUDGE LICHTENSTEIN
Taubman and Román, JJ., concur

Announced: July 9, 2009

Charles H. Torres, P.C., Charles H. Torres, Denver, Colorado, for Plaintiffs-
Appellants

McConnell, Siderius, Fleischner, Houghtaling & Craigmile, LLC, Linda L.
Siderius, Robert W. Steinmetz, Denver, Colorado, for Defendants-Appellees

Banner Health, Banner Health d/b/a North Colorado Medical Center, and
Donald Mellman

Budman & Hershey, LLC, Kari M. Hershey, Denver, Colorado, for Defendants-
Appellees Les Fraser, M.D. and Rick Kiser, M.D.

Hill & Robbins, P.C., John F. Walsh, III, Jennifer H. Hunt, Denver, Colorado,
for Defendants-Appellees Lisa Burton, M.D., Gene O’Hara, Peter S. Fine,
Banner Health Board of Directors, and Appellate Review Committee of Banner
Health

This appeal raises issues of subject matter jurisdiction under

the Colorado Professional Review Act (CPRA), sections 12-36.5-101

to -203, C.R.S. 2008, and immunity under the Health Care Quality

Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101 to -11152.

Plaintiffs, Drs. James Lee and Jeffrey Lee, and their clinic,

Front Range Surgical Specialists, Inc. (Front Range), filed a

complaint in district court asserting various common law claims

against defendants, Drs. Donald Mellman, Les Fraser, Rick Kiser,

and Lisa Burton, Banner Health, the North Colorado Medical Center

(NCMC), Gene O’Hara, Peter S. Fine, the Banner Health Board of

Directors, and the Appellate Review Committee of Banner Health.

Plaintiffs alleged defendants improperly denied trauma privileges to

Dr. James Lee (Dr. Lee) and subjected him to a deficient peer review

process in retaliation for plaintiffs’ refusal to support defendants’

business decision to restrict the performance of endoscopies.

Defendants assert they engaged in an appropriate peer review

process.

The trial court dismissed plaintiffs’ claims for lack of subject

matter jurisdiction based on their failure to exhaust administrative

remedies under the CPRA, and therefore did not reach defendants’
1

immunity claim under the HCQIA. We reverse the judgment of the

district court to the extent it dismissed (1) Dr. Lee’s claims for

defamation and invasion of privacy that were based on the alleged

“public denouncement” of Dr. Lee and (2) the claims made by Dr.

Jeffrey Lee and Front Range (except for the breach of contract

claim, which is not before us on appeal). We affirm the judgment in

all other respects and remand the case to the district court for a

hearing on defendants’ claim of HCQIA immunity and for further

proceedings consistent with this opinion.

I. Background

Dr. Lee and Dr. Jeffrey Lee are brothers who operate their own

medical practice, Front Range, in Greeley, Colorado. The brothers

had privileges at Greeley’s NCMC to provide oncology care, surgery,

and trauma care.

For over six years, plaintiffs and defendants have disputed the

circumstances surrounding Dr. Lee’s departure from trauma call at

NCMC. According to plaintiffs’ complaint, in early 2003, defendant

Dr. Fraser, a member of a medical clinic and chair of NCMC’s

Surgical Quality Improvement (SQI) committee, threatened Dr. Lee’s

brother, Dr. Jeffrey Lee, with the loss of trauma privileges at NCMC
2

if the brothers would not support the efforts of Dr. Fraser and other

defendants to limit the performance of endoscopy procedures to

gastroenterology specialists.

Sometime after this initial incident, defendant Dr. Burton, a

partner in another medical group and chair of NCMC’s Trauma

Quality Improvement committee, warned Dr. Lee that plaintiffs

would have to “either get on board” with the efforts to allow only

specialists to perform endoscopy procedures or “be branded as

troublemakers.”

Plaintiffs allege that when they resisted, Dr. Burton, acting

outside NCMC’s recognized peer review procedures, called a meeting

(on July 9, 2003) with Drs. Fraser and Mellman and Ruth Sens to

discuss an “emergency situation” concerning Dr. Lee and four

allegedly mishandled trauma cases. At the time of the meeting, Dr.

Mellman was NCMC’s Associate Administrator of Medical Affairs,

and Ruth Sens was director of Quality Improvement.

The meeting participants apparently agreed that Dr. Mellman

would take immediate action against Dr. Lee, and that the four

allegedly mishandled trauma cases would be referred both for

outside review and for review by NCMC’s SQI committee. Plaintiffs
3

allege that under NCMC peer review rules, the SQI committee was

not empowered to review trauma cases.

Plaintiffs allege that on July 10, 2003, Dr. Mellman threatened

Dr. Lee with immediate suspension and reporting to the National

Practitioner Data Bank unless he voluntarily resigned his trauma

privileges. At the insistence of Dr. Mellman, Dr. Lee drafted a letter

resigning his trauma privileges. When Dr. Lee gave the letter to

him, Dr. Mellman berated Dr. Lee in a public area at NCMC where

other members of the medical staff were within earshot. Dr.

Mellman later informed Dr. Lee, in the presence of medical staff,

that because the resignation letter was improperly worded, Dr.

Mellman would still be required to report him to the National

Practitioner Data Bank unless he rewrote the letter. Plaintiffs

assert that Dr. Mellman’s threats coerced Dr. Lee to “voluntarily

waive his rights” to protections available under the hospital’s peer

review process. When Dr. Lee tried to rescind his “voluntary

resignation,” Dr. Mellman again threatened him with immediate

reporting to the National Practitioner Data Bank.

Plaintiffs allege that shortly after this public confrontation, Dr.

Mellman directed four NCMC hospital personnel to approach Dr.
4

Lee, who, at the time, was preparing to assist another doctor with a

surgical operation. They asked if he had spoken to Dr. Mellman,

telling him that he “was not to operate until he had talked with [Dr.]

Mellman.”

Plaintiffs further allege that on January 23, 2004, as Dr. Lee

was again preparing for surgery, he was handed, in a manner

calculated to create a public display, a letter stamped seven times:

“CONFIDENTIAL.” Some NCMC hospital employees approached Dr.

Lee before he was about to commence surgery to ensure he had

received this confidential letter.

Plaintiffs assert that defendants did not follow the peer review

process dictated by the NCMC bylaws for approximately seven

months – from July 10, 2003, when Dr. Mellman allegedly directed

Dr. Lee to resign from trauma call until February 27, 2004, when

defendant Dr. Kiser, who was chair of NCMC’s Credentials

Committee, notified Dr. Lee of the Credentials Committee’s receipt

of a formal request from the SQI committee for investigative and

corrective action.

Plaintiffs filed a complaint in federal district court raising

federal and state antitrust claims and other state law claims. In
5

May 2005, the federal district court dismissed the antitrust claims

with prejudice. It dismissed the remaining state claims, without

prejudice, for want of subject matter jurisdiction. In August 2005,

plaintiffs filed a complaint in state district court raising state claims

substantially similar to those brought in federal district court for (1)

civil conspiracy, (2) breach of contract, (3) tortious interference with

contract, (4) defamation and intentional interference with

contractual relations, (5) invasion of privacy, (6) negligence, (7)

liability based on ratification and failure to conduct an independent

investigation. Plaintiffs’ complaint also included a request for

exemplary damages.

On September 14, 2005, Dr. Lee received notice of a final

decision by the Banner Health Board of Directors (Board) accepting

the recommendation of Banner’s Appellate Review Committee. In

light of Dr. Lee’s receipt of the Board’s final decision, plaintiffs filed

an amended complaint on November 7, 2005 reflecting the final

decision.

Prior to the filing of the amended complaint, on October 28,

2005, defendants filed two motions to dismiss plaintiffs’ complaint,

asserting that (1) the district court lacked subject matter
6

jurisdiction over plaintiffs’ claims because plaintiffs failed to

exhaust their administrative remedies under the CPRA by not filing

their claims with the state Committee on Anticompetitive Conduct

(CAC); (2) defendants were immune from suit under the CPRA and

the HCQIA; and (3) plaintiffs’ claims for breach of contract, invasion

of privacy, and negligence failed to state claims upon which relief

could be granted.

Although defendants styled their motions as motions to

dismiss, the district court noted that the parties had attached

numerous exhibits relevant to some of the claims. It therefore

treated defendants’ motions as motions for summary judgment, but

considered the claims for breach of contract, invasion of privacy,

and negligence under C.R.C.P. 12(b)(5).

On June 19, 2007, the district court partially denied

defendants’ motions. It first concluded that because the CAC has

no power to award monetary relief, plaintiffs were not required to

file their claims with the CAC in order to properly exhaust their

administrative remedies under the CPRA. Next, the court ordered a

hearing to determine the validity of defendants’ assertions of HCQIA

and CPRA immunity. The court then found that plaintiffs had
7

successfully stated claims for invasion of privacy and negligence,

but dismissed plaintiffs’ claim for breach of contract for failure to

state a claim. Plaintiffs’ breach of contract claim is not at issue in

this appeal.

On October 30, 2007, defendants filed a joint motion for

reconsideration of their motions to dismiss in light of the supreme

court decision in Crow v. Penrose-St. Francis Healthcare System,

169 P.3d 158 (Colo. 2007), which held that common law claims

arising out of the peer review process may not be asserted in court

until a physician has exhausted his or her administrative remedies

under the CPRA. In their response, plaintiffs asserted that they

were not required to file their claims “with the CAC because none of

their allegations . . . alleged anticompetitive conduct by the

defendants.”

The district court, relying on Crow, dismissed all of plaintiffs’

claims with prejudice based on Dr. Lee’s failure to exhaust

administrative remedies under the CPRA. Contrary to plaintiffs’

position, the district court found “the conduct with which Plaintiffs

take issue [is] irreversibly intertwined with alleged anti-competitive

conduct by Defendants.” Plaintiffs appeal the judgment of
8

dismissal.

II. Standard of Review

A trial court may consider any competent evidence pertaining

to a C.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter

jurisdiction without converting the motion to a summary judgment

motion. Trinity Broad. of Denver, Inc. v. City of Westminster, 848

P.2d 916, 924 (Colo. 1993).

A trial court’s determination regarding subject matter

jurisdiction is a question of law and is therefore subject to de novo

review. Pfenninger v. Exempla, Inc., 12 P.3d 830, 833 (Colo. App.

2000) (Pfenninger I) (trial court’s determination regarding subject

matter jurisdiction is reviewed de novo).

III. Discussion

Pursuant to C.R.C.P. 12(b)(1), a plaintiff has the burden of

proving that the trial court has jurisdiction to hear the case.

Pfenninger I, 12 P.3d at 833. If a party fails to exhaust

administrative remedies when required, the trial court is without

jurisdiction to hear the case. Id.; see also State v. Golden’s Concrete

Co., 962 P.2d 919, 923 (Colo. 1998).

Section 12-36.5-106 of the CPRA provides a two-track
9

exhaustion requirement for claims arising out of the peer review

process, “depending on whether the claim alleges anticompetitive

conduct by the peer review committee.” Crow, 169 P.3d at 165. To

exhaust administrative remedies for claims arising out of the peer

review process that do not allege anticompetitive conduct, a

physician need only obtain a final board action by the hospital. §

12-36.5-106(8); Crow, 169 P.3d at 165. To exhaust administrative

remedies for claims arising out of the peer review process that allege

anticompetitive conduct, a physician must obtain a final board

action by the hospital, and then present his or her claims alleging

anticompetitive conduct to the CAC. § 12-36.5-106(7) (“Any

physician . . . who believes that [a final board] action resulted from

unreasonable anticompetitive conduct shall have, as his sole and

exclusive remedy, direct review of the record by the [CAC].”); Crow,

169 P.3d at 163.

The CAC’s jurisdiction does not extend to the review of a

hospital’s denial of a physician’s privileges when the denial is

unrelated to the physician’s qualifications, conduct, or quality of

patient care. Ryals v. St. Mary-Corwin Reg’l Med. Ctr., 10 P.3d 654,

662 (Colo. 2000).

10

Plaintiffs contend the district court had subject matter

jurisdiction over their claims because the CPRA exhaustion

requirement did not require them to present their claims to the CAC

prior to filing in district court. They specifically assert that (1) their

complaint alleged retaliatory conduct as opposed to anticompetitive

conduct; or (2) assuming arguendo that the alleged conduct was

anticompetitive, the conduct did not stem from a peer review

process.

As a preliminary matter, we note that the procedural posture

of the plaintiffs is distinct. Dr. Lee is the only plaintiff that was the

subject of peer review. Therefore we will analyze the CPRA

exhaustion requirement separately as to Dr. Lee and the other two

plaintiffs, Dr. Jeffrey Lee and Front Range.

A. Dr. Jeffrey Lee and Front Range

Dr. Jeffrey Lee and Front Range contend the court erred by

dismissing their claims because they have damages that exist

independently of Dr. Lee’s claims. Defendants assert that the

claims of Dr. Jeffrey Lee and Front Range are derivative of Dr. Lee’s

claims and are “per se precluded” by the CPRA’s exhaustion

requirement in section 12-36.5-106(7) due to Dr. Lee’s failure to
11

present his claims to the CAC. We agree with Dr. Jeffrey Lee and

Front Range.

In its order dismissing plaintiffs’ amended complaint, the

district court did not explain its rationale – beyond its reliance on

Crow – for dismissing claims made by Dr. Jeffrey Lee and Front

Range. Consequently, we infer that the district court dismissed

their claims because it believed them to be barred by Dr. Lee’s

failure to bring his own claims before the CAC.

In Ryals, our supreme court held that only claims arising out

of the peer review process are subject to the CPRA’s exhaustion of

remedies requirement. Ryals, 10 P.3d at 659. In addition, section

12-36.5-106(7) unambiguously states that only physicians who are

“the subject of a final action by a governing board” need present

peer review claims that allege anticompetitive conduct to the CAC.

Crow, 169 P.3d at 165. In the present case, neither Dr. Jeffrey Lee

nor Front Range was subject to peer review, and neither was the

subject of a final action by a governing board. Thus, they had no

avenue for relief other than to bring their claims in district court.

In addition, the civil conspiracy, interference with contract,

and liability based on ratification and failure to conduct an
12

independent investigation claims brought by Dr. Jeffrey Lee and

Front Range (as well as their request for exemplary damages) were

not dependent upon Dr. Lee’s recovery on his claims, and are

therefore not properly characterized as derivative. See Elgin v.

Bartlett, 994 P.2d 411, 415 (Colo. 1999) (derivative claims are

unique in that they depend entirely upon the right of the injured

person to recover). Furthermore, the invasion of privacy and

defamation claims were not subject to the CPRA’s exhaustion

requirement, as discussed below.

We therefore conclude that Dr. Lee’s failure to present his

claims to the CAC did not deprive the district court of jurisdiction

over the claims of Dr. Jeffrey Lee and Front Range.

B. Dr. Lee

We now turn to whether Dr. Lee was required to present his

claims to the CAC prior to filing in district court. We conclude that,

other than the invasion of privacy and defamation claims discussed

below, Dr. Lee was required to exhaust his claims before the CAC,

because his claims alleged anticompetitive conduct arising out of

the peer review process.

i. Anticompetitive Conduct
13

In its order dismissing Dr. Lee’s claims, the district court

found that the amended complaint alleged anticompetitive conduct,

and concluded that the “attempt to characterize [d]efendants’

purported conduct as ‘retaliation’ instead of ‘anti-competition’

amount[ed] to an issue of semantics.”

On appeal, Dr. Lee argues that retaliatory conduct is different

from anticompetitive conduct, and that his claims were based on

defendants’ retaliation for plaintiffs’ refusal to support defendants’

efforts to limit the performance of endoscopies to specialists. We

are not persuaded.

After our own review of the amended complaint, we agree with

the district court that the complaint alleges anticompetitive conduct

because it is replete with assertions such as: “Defendants conspired

and agreed to retaliate against Plaintiffs and their clinic, to destroy

competition in Greeley and northern Colorado.” Moreover, plaintiffs

describe Drs. Burton, Fraser, and Kiser as competitors, and accuse

Banner Health of allowing certain doctors to use the peer review

process to arbitrarily ruin the reputations and practices of

“competitor doctors.” Whether defendants had retaliatory motives

for engaging in anticompetitive conduct does not alter the fact that
14

Dr. Lee alleged anticompetitive conduct. See Crow, 169 P.3d at

166. Therefore, he was required to present his claims to the CAC

before bringing them in court, so long as the claims arose out of the

peer review process. § 12-36.5-106(7); Crow, 169 P.3d at 165.

ii. Peer Review

Plaintiffs contend that Dr. Lee’s claims did not arise out of a

peer review process. They argue the claims either did not involve

patient care issues or were based on conduct that occurred prior to

any official NCMC peer review procedure. With the exception of the

invasion of privacy and defamation claims that were based on Dr.

Mellman’s alleged “public denouncement of Dr. James Lee,” we

disagree with plaintiffs.

The CAC only has jurisdiction over claims arising from a peer

review activity assessing physician competence. Ryals, 10 P.3d at

659. In Ryals, the defendant hospital denied the plaintiff physician

MRI-reading privileges. Because the hospital’s denial was based on

an exclusive contract granting MRI-reading privileges to a specific

group of doctors and not on concerns about the plaintiff’s

competence, the supreme court concluded that the plaintiff

15

physician’s claims had not arisen from a peer review process, and

thus were not subject to the CPRA’s exhaustion requirements. Id.

Here, plaintiffs do not dispute that at the initial July 9, 2003

meeting among Dr. Burton, Dr. Fraser, Dr. Mellman, and Sens, the

participants reviewed four of Dr. Lee’s trauma cases.

However, plaintiffs assert that the purported peer review that

commenced at the July 9, 2003 meeting did not follow NCMC peer

review procedures, and thus could not qualify as peer review for

purposes of the CPRA. Even if we were to assume, without

deciding, that the process did not follow recognized procedures, we

are not persuaded.

Under the CPRA, peer review committees may investigate the

“quality or appropriateness of patient care rendered by or the

professional conduct of any [licensed] physician.” § 12-36.5-

104(6)(a)(II); see Ryals, 10 P.3d at 659. Since it is undisputed that

Dr. Burton, Dr. Fraser, Dr. Mellman, and Sens met on July 9, 2003

to review four of Dr. Lee’s trauma cases, the July 9 meeting

commenced Dr. Lee’s peer review process.

Failure by defendants to conduct the peer review process in

accordance with NCMC bylaws does not mean defendants were
16

engaged in something other than peer review. Rather, any alleged

failure of defendants to comply with NCMC bylaws would simply

constitute a deficiency in the peer review process. See Crow, 169

P.3d at 168 (“Crow’s complaints stem solely from the process, or in

his view, lack of process, that he has been afforded.”); see also § 12-

36.5-104(4) (professional review committee must operate pursuant

to written bylaws approved by governing board); Peper v. St. Mary’s

Hosp. & Med. Ctr., 207 P.3d 881, 888-89 (Colo. App. 2008)

(addressing adequacy of notice and hearing procedures).

Under Crow, claims based on deficiencies in the peer review

process are treated no differently from claims based on the outcome

of the peer review process. Crow, 169 P.3d at 168-69.

Consequently, we conclude that Dr. Lee’s claims regarding the

adequacy of defendants’ investigation and review of his competence

are claims arising out of the peer review process, and therefore fall

within the CAC’s jurisdiction.

Pursuant to section 12-36.5-106(7), Dr. Lee was required to

present his claims (other than invasion of privacy and defamation)

to the CAC before filing suit in district court. Id. at 163. Because

he did not do so, the district court was without jurisdiction to
17

entertain his claims, other than the below-discussed invasion of

privacy and defamation claims.

iii. Invasion of Privacy and Defamation Claims

Plaintiffs contend the court erred by dismissing their fourth

claim, for defamation, and their fifth claim, for invasion of privacy,

asserting that the CAC does not have jurisdiction over common law

claims that do not arise out of peer review activity. We agree, but

only to the extent the claims are based on Dr. Mellman’s alleged

“public denouncement of Dr. James Lee.”

As an initial matter, we note that although plaintiffs assert in

the argument heading of their brief that the court erred by

dismissing their claim for invasion of privacy, the text of their

arguments addresses their claims for invasion of privacy and

defamation to the extent they were based on public confrontations

between Drs. Mellman and Lee. We therefore address plaintiffs’

arguments regarding both claims.

Plaintiffs rely on Pfenninger v. Exempla, Inc., 17 P.3d 841

(Colo. App. 2000) (Pfenninger II), to argue that physicians are not

required to present common law claims to the CAC because the

CAC has no jurisdiction over such claims. Plaintiffs assert that the
18

supreme court’s holding in Crow does not alter Pfenninger II’s

holding. While we disagree with plaintiffs’ characterization of Crow,

we agree that the district court erred in dismissing plaintiffs’ two

claims here. Contrary to plaintiffs’ argument, Crow limits the

Pfenninger II holding, but only to the extent that a physician asserts

common law claims that arise out of a peer review activity.

Pursuant to Crow, “common law claims arising out of the peer

review procedure are subject to the exhaustion of administrative

remedies requirement detailed in subsections 12-36.5-106(7) and

(8).” Crow, 169 P.3d at 163 (emphasis added).

Here, rather than occurring during a peer review procedure,

Dr. Mellman’s alleged “public denouncement” of Dr. Lee was made

in hallways and operating rooms at NCMC. To the extent plaintiffs’

invasion of privacy and defamation claims were based on this

conduct, they were not subject to the CPRA’s exhaustion of

administrative remedies requirement under section 12-36.5-106.

We conclude, therefore, that plaintiffs were not required to present

these claims to the CAC before proceeding with them in district

court.

19

We further conclude that to the extent plaintiffs’ fourth and

fifth claims allege NCMC and Banner Health share liability for Dr.

Mellman’s alleged torts, plaintiffs were not required to first present

these claims to the CAC. We express no opinion, however, on the

validity of plaintiffs’ claims.

C. HCQIA Immunity

Defendants contend they are entitled to statutory immunity

under the HCQIA. Insofar as we have reversed the dismissal of

some of plaintiffs’ claims, we remand for the district court to

conduct a hearing on defendants’ assertion of HCQIA immunity.

D. Attorney Fees and Costs

Defendants next contend they are entitled to an award of

attorney fees and costs on appeal, citing section 13-17-201, C.R.S.

2008, which provides for the award of attorney fees in a tort action

dismissed under Crim. P. 12(b). We disagree.

Had defendants successfully defended the C.R.C.P. 12(b)

dismissal of plaintiffs’ claims on appeal, they would be entitled to

recover reasonable attorney fees on appeal. Cf. State Farm Fire &

Cas. Co. v. Weiss, 194 P.3d 1063, 1169 (Colo. App. 2008). Here,

however, because we have reinstated some of plaintiffs’ claims,
20

defendants cannot recover their attorney fees under section 13-17-

201. See Rector v. City & County of Denver, 122 P.3d 1010, 1018

(Colo. App. 2005); Sundheim v. Bd. of County Comm’rs, 904 P.2d

1337, 1353 (Colo. App. 1995) (§ 13-17-201 inapplicable because

one of the claims had been restored in part), aff’d, 926 P.2d 545

(Colo. 1996).

In light of this conclusion, we need not address plaintiffs’

remaining arguments in opposition to defendants’ request for

attorney fees.

As to costs, section 13-17-201 does not provide for an award

of costs, and because we have reinstated some of plaintiffs’ claims,

we decline to award defendants costs on appeal. See C.A.R. 39(a) (if

a judgment is affirmed or reversed in part, or is vacated, costs shall

be allowed only as ordered by the court).

IV. Conclusion

The judgment of the district court is reversed to the extent it

dismissed Dr. Lee’s claims for defamation and invasion of privacy

based on Dr. Mellman’s alleged “public denouncement” of Dr. Lee.

The judgment of the district court is also reversed to the extent it

dismissed all claims made by Dr. Jeffrey Lee and Front Range
21

(except for the breach of contract claim, which is not before us on

appeal). The judgment is affirmed in all other respects. The case is

remanded to the district court to hold a hearing to determine

defendants’ claim of HCQIA immunity and for further proceedings

consistent with this opinion.

JUDGE TAUBMAN and JUDGE ROMÁN concur.

22

Lee v. Banner Health (Summary)

PEER REVIEW PRIVILEGE

Lee v. Banner Health, No. 08CA0665 (Colo. Ct. App. July 9, 2009)

The Colorado Court of Appeals, among other findings, upheld a district court’s decision to dismiss a physician’s claims because he failed to exhaust administrative remedies as required under the Colorado Professional Review Act ("CPRA"). The CPRA requires that parties exhaust their administrative remedies before they bring an action before the court. Specifically, when the claims arise from a peer review process and allege anticompetitive behavior, the CPRA states that a party may not bring his or her action in district court until he or she has exhausted the administrative remedy by filing claims with the Committee on Anticompetitive Conduct.

The physician alleged that the hospital’s actions were outside the scope of this provision, thus relieving him of this requirement, but the court disagreed. First, the court rejected the physician’s contention that the hospital’s conduct was retaliatory in nature, rather than anticompetitive. The court also disagreed with the physician’s allegation that the provision did not apply because the hospital’s peer review process failed to follow procedures set forth in the hospital bylaws. The court stated that the "failure by the hospital to conduct the peer review process in accordance with its bylaws does not mean the hospital was engaged in something other than peer review." The court did find that, to the extent that the invasion of privacy and defamation claims were based on defamatory conduct, these claims were not subject to the CPRA’s exhaustion of administrative remedies requirement.

 

Leal v. Sec’y, U.S. Dep’t of Health and Human Servs (Full Text)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JORGE J. LEAL, M.D.,

Plaintiff,

-vs-

Case No. 6:08-cv-1062-Orl-22GJK

SECRETARY, U.S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,

Defendants.
______________________________________

ORDER

This cause is before the Court for review of a final order of the Secretary of the Department

of Health and Human Services denying Plaintiff Jorge J. Leal, M.D.’s request to void an Adverse

Action Report (“AAR”)1 from the National Practitioner Data Bank (“NPDB”). The United States

Magistrate Judge has submitted a Report and Recommendation (Doc. 33) recommending that the

Secretary’s decision be affirmed. After an independent de novo review of the record in this matter,

including the objections filed by Dr. Leal (Doc. 34) and the Secretary’s response to those objections

(Doc. 35), the Court agrees with the findings of fact and conclusions of law in the Report and

Recommendation.

At the outset, Dr. Leal’s objections to the magistrate judge’s recitation of the background of

the case, the parties’ arguments, and the applicable legal principles (Objections 1-9, 13, 16) are

1 All references to the AAR in this Order refer to the Correction Adverse Action Report filed
by Cape Canaveral Hospital on April 17, 2008.

overruled. The magistrate judge fairly and accurately portrayed these aspects of the case,2 and the

Court adopts and confirms them as part of this Order. Furthermore, Dr. Leal’s objections to the

magistrate judge’s ultimate conclusions and recommendations (Objections 10-12, 18) must be

overruled because they merely state that the magistrate judge was wrong without explanation. The

remainder of Dr. Leal’s objections (Objections 14, 15, 17 & 19) essentially reassert prior arguments

regarding the Secretary’s alleged failure to conduct a meaningful review of the AAR. The

magistrate judge found that these arguments lacked merit, and the Court agrees.

As the magistrate judge noted, the Secretary’s review of disputed reports is limited to

resolution of two issues: (1) whether the report is accurate; and (2) whether the reporting entity was

required by law to report the adverse action against the health care provider. Dr. Leal criticizes the

Secretary’s decision with respect to both of these issues.

First, Dr. Leal asserts that the Secretary failed to meaningfully review the accuracy of the

information contained in the AAR. In this regard, Dr. Leal accuses the Secretary of simply “rubber-

stamping” the hospital’s version of the facts as reported and ignoring what Dr. Leal perceives to be

the great weight of the evidence indicating that those facts are false. A review of the contents of the

Secretarial Review Decision, however, indicates that the Secretary did not ignore Dr. Leal’s version

of the events leading to his suspension. Indeed, the Secretary began his decision with a detailed

recitation of the parties’ positions. Then, the Secretary addressed each of Dr. Leal’s areas of dispute,

pointing to specific evidence in the record, as well as pertinent regulations and agency guidance.

2 In relation to Objection 16, the Court recognizes the magistrate judge’s apparent
typographical error in paraphrasing the Secretary’s duties under 45 C.F.R. § 60.14(c)(2)(I-ii), see Doc.
33 at 15; however, this error has no effect on the ultimate conclusion reached by the magistrate judge
and, thus, does not alter this Court’s agreement with the magistrate judge’s recommendations.

-2-

In doing so, the Secretary noted the following with respect to Dr. Leal’s charge that the AAR was

inaccurate:

[I]n the affidavit dated September 17, 2007, that you submitted with your Secretarial
Review Request you admit to the actions for which CCH suspended you. While you
claim that the way the facts are portrayed are “misleading” and “inflammatory,” your
affidavit supports CCH’s claim that the actions did happen. You disagree with the
action the hospital took based on these actions. This issue is beyond the scope of
Secretarial Review.

R. 269. There is substantial evidence in the record to support the Secretary’s conclusions in this

regard. As the Secretary observed, Dr. Leal’s affidavit confirms that the incidents CCH cited as its

reasons for imposing the summary suspension actually occurred. Specifically, Dr. Leal admitted in

his original and supplemental affidavits that on October 3, 2001, he: (a) was frustrated about delays

in getting his patient to surgery; (b) broke a telephone receiver in the doctors’ lounge; (c) dropped

part of a medical chart on the ground as he was taking it from a nurse; (d) threw jellybeans into a

trash can in the medical suite; (e) broke a copy machine in the surgical suite hallway; (f) shoved a

metal rolling cart out of his way while entering the operating suite; and (g) spoke sternly to a nurse

manager, accused her of being a liar and not knowing what was going on in her department, and

questioned her about whether a policy concerning physicians showing up late for surgeries was

being fairly applied to all physicians. See R. 28-32, 203-05. The depositions submitted by Dr. Leal

confirmed these facts. See McLeod Dep., R. 208 (testifying that Dr. Leal grabbed a medical chart

from her and “papers went flying.”); Leal Dep., R. 211-13 (testifying that he was unsure whether

any jelly beans hit the floor when he threw them in the trash can, and he was also unsure whether

the metal cart he pushed out of his way while entering the operating suite caused damage to the

wall); Suarez Dep., R. 221-25 (testifying that Dr. Leal spoke to her in a “loud” tone of voice,

-3-

sounded “angry,” and told her she was “prejudiced.”). Thus, there was substantial evidence in the

record supporting the Secretary’s determination that the AAR was accurate as reported by CCH.

In addition, the Secretary reasonably determined that, to the extent Dr. Leal merely contested

CCH’s characterization of the events of October 3, 2001, his purported dispute of the “accuracy”

of the report was more properly considered an appeal of the hospital’s reasons for taking disciplinary

action. As the Secretary properly noted, such disputes are outside the scope of Secretarial Review.

See U.S. Dept. of Health and Human Servs., Health Res. and Servs. Admin., Div. of Quality

Assurance, Publ’n No. HRSA-95-255, National Practitioner Data Bank Guidebook (2001) F-1 (“The

dispute process is not an avenue . . . to appeal the underlying reasons of an adverse action affecting

the subject’s license, clinical privileges, or professional society membership.”); F-2 (“[A] subject

may not dispute a report in order to appeal the underlying reasons for an adverse action.”); F-3

(instructing the Secretary not to “review the . . . appropriateness of, or basis for, a health care entity’s

professional review action”). Therefore, the Secretary’s decision not to re-weigh the evidence

underlying CCH’s stated reasons for imposing Dr. Leal’s suspension was in accordance with law.

Turning to the second issue that must be considered upon secretarial review, i.e., whether the

reporting entity was required to report the adverse action against the health care practitioner, the

Court agrees with the magistrate judge’s conclusion that the Secretary’s determination that Dr.

Leal’s summary suspension was a reportable event was supported by substantial evidence. The

Secretary noted in his final decision that, according to agency guidance, summary suspensions are

reportable if the following three conditions are satisfied: (1) the suspension is in effect or imposed

for more than 30 days; (2) the suspension is based on professional competence or conduct that

-4-

adversely affects, or could adversely affect, the health or welfare of a patient; and (3) the suspension

was the result of a professional review action taken by the reporting entity. R. 269-70. Dr. Leal

argued that his suspension was not reportable because his alleged conduct did not pose an imminent

danger to the health of any individual, was not the result of a professional review action, and was

unrelated to professional competence or conduct that adversely affected the health or welfare of a

patient. R. 258. The Secretary thought differently, concluding that all three requirements were met.

R. 270.

In support of his conclusion, the Secretary pointed to an October 8, 2001, letter from Dr.

Moore, CCH Medical Staff President, stating specifically that he implemented Dr. Leal’s summary

suspension due to his “disruptive behavior” and “in the best interests of patient care.” R. 269

(quoting R. 33). The Secretary also highlighted an October 23, 2001, letter from Christopher

Kennedy, CCH President, in which Kennedy stated that the reason for Dr. Leal’s summary

suspension was “the violent, threatening, and physically destructive and damaging behavior [Dr.

Leal] displayed on the third floor of the hospital on the evening of October 3, 2001.” R. 269

(quoting R. 35). Though neither letter used the precise language of the second condition for a

reportable summary suspension, i.e., professional conduct that adversely affects, or could adversely

affect, the health or welfare of a patient, the Secretary reasonably concluded that both letters

indicated that Dr. Leal’s actions were considered to be related to his professional conduct and that

the suspension was imposed amid concerns about the effect, or potential effect, of Dr. Leal’s actions

on the health or welfare of hospital patients. Therefore, the Court concludes that the Secretary’s

decision that the adverse action taken against Dr. Leal was reportable must be upheld because it was

supported by substantial evidence.

-5-

As an aside, the Secretary’s rejection of Dr. Leal’s assertion that a summary suspension is

only reportable where it was imposed to protect patients from “imminent danger” was not improper.

First, the “imminent danger” language cited by Dr. Leal governs a health care entities’ conduct of

professional review actions; it does not govern the entity’s ultimate duty to report the action to the

NPDB. See 42 U.S.C. § 11112(c)(2) (relating to “Standards for professional review actions”).

Second, Dr. Leal’s contention that his summary suspension was not imposed to protect patients from

imminent danger challenges the merits of the professional review action, not whether it was

reportable by law. And, as the Secretary noted, the agency cannot conduct an independent review

of the merits of a professional review action when resolving a disputed AAR. Thus, the Secretary

properly declined to indulge Dr. Leal’s request to evaluate whether CCH properly imposed his

summary suspension.

In sum, the Secretary’s determinations that the AAR was accurate and that Dr. Leal’s

summary suspension was reportable to the NPDB were both supported by substantial evidence. In

addition, the Secretary reasonably determined that Dr. Leal’s dispute improperly requested a review

of the merits of CCH’s decision to suspend his clinical privileges, and properly abstained from

evaluating the appropriateness of, or basis for, the hospital’s professional review action. Thus, the

Secretary’s decision to maintain the AAR in the NPDB must be upheld.

Therefore, it is ORDERED as follows:

1.

The Report and Recommendation filed July 28, 2009 (Doc. 33) is ADOPTED and

CONFIRMED and made a part of this Order.

2.

Plaintiff’s Objections to the Report and Recommendation (Doc. 34) are

OVERRULED.

-6-

3.

The Secretary’s June 9, 2008 Secretarial Review Decision is AFFIRMED. The

Clerk shall enter judgment in favor of Defendants.

4.

The Clerk is directed to close this case.

DONE and ORDERED in Chambers, in Orlando, Florida on September 14, 2009.

Copies furnished to:

United States Magistrate Judge
Counsel of Record

-7-