Morgan v. Peace Health, Inc.
Morgan v. Peace
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 43467-5-I
Title of Case: Bruce J. Morgan, D.P.M., Appellant
v.
Peacehealth, Inc., Respondent
File Date: 04/17/2000
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 97-2-29849-1
Judgment or order under review
Date filed: 09/10/1998
Judge signing: Hon. Robert S. Lasnik
JUDGES
------
Authored by Walter E. Webster
Concurring: Mary K. Becker
Ronald E. Cox
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Jay D. O'Sullivan
400 Mercer St Ste 301
Seattle, WA 98109
Counsel for Respondent(s)
William R. Hickman
Reed McClure
Two Union Square
601 Union St Ste 4800
Seattle, WA 98101-3900
Katharine W. Brindley
Reed McClure
Two Union Square
601 Union St Ste 4800
Seattle, WA 98101-3900
Marilee C. Erickson
Reed McClure
Two Union Square
601 Union St Ste 4800
Seattle, WA 98101-3900
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BRUCE J. MORGAN, DPM, )
) No. 43467-5-I
)
Appellant, ) DIVISION ONE
)
v. )
) UNPUBLISHED
PEACE HEALTH, INC., ) OPINION
)
)
Respondent. ) FILED:
WEBSTER, J. -- After St. John Medical Center, owned and operated by
Respondent PeaceHealth, revoked Appellant Bruce J. Morgan's hospital
privileges, he brought suit against PeaceHealth alleging that PeaceHealth's
actions against him were in violation of: (1) the Health Care Quality
Improvement Act of 1986 (HCQIA), 42 U.S.C. sec. 11101, et seq.; (2) the
Washington Health Care Peer Act, RCW 7.71.030; (3) the Consumer Protection
Act (CPA), RCW Ch. 19.86; (4) and article 12, sec. 22 of the Washington
Constitution. The trial court granted summary judgment to PeaceHealth.
The issues presented by Morgan's appeal are: (1) is PeaceHealth entitled to
immunity under the HCQIA; (2) did the trial court abuse its discretion by
denying Morgan's motions to compel discovery and continue until discovery
was answered; (3) did the trial court abuse its discretion by refusing to
strike portions of a declaration and certain attached documents offered in
support of PeaceHealth's motion for summary judgment; (4) is Morgan
entitled to injunctive relief; and (5) is the Hospital entitled to attorney
fees? Because we find that the hospital is entitled to immunity, we
affirm.
SUMMARY JUDGMENT STANDARD
'When reviewing an order for summary judgment, we engage in the same
inquiry as the trial court, and will affirm summary judgment if there is no
genuine issue of any material fact and the moving party is entitled to
judgment as a matter of law.' Wilson Court Ltd. Partnership v. Toni
Maroni's, Inc., 134 Wn.2d 692, 698, 952 P.2d 590 (1998); see also CR 56(c).
All facts and reasonable inferences must be considered in a light most
favorable to the nonmoving party, and all questions of law are reviewed de
novo. See id. We will sustain the trial court's judgment on any theory
established in the pleadings and supported by proof. See id.
BACKGROUND
A.The Parties
Morgan is a podiatrist who had staff privileges at St. John Medical
Center and Monticello Medical Center from 1981 to 1997. Respondent
PeaceHealth owns St. John Medical Center. Prior to 1987, St. John and then
independent Monticello Medical Center had a joint credentials committee.
After PeaceHealth acquired Monticello in 1987, the joint credentials
committee became the Credentials Committee.
B.The Evidence Regarding the 1981 and 1983 Complaints and
Actions Taken by the Hospital
In support of its motion for summary judgment, PeaceHealth offered the
declaration of Betsy A. Coburn, St. John's Risk Manager. Coburn's
responsibilities include monitoring the credentials and peer review actions
at the hospital. Coburn has held this position since July 1989. Coburn
testified in her declaration to alleged complaints against Morgan made in
1981 and 1983, before she held her position, and actions taken by
Monticello Medical Center:
In 1981 and 1983, the joint Credentials Committee received a number of
complaints regarding inappropriate sexual behavior, unprofessional conduct,
and possible negligence by Dr. Morgan. In 1983, Dr. Morgan's privileges
were summarily suspended due to complaints by patients of incompetence and
inappropriate sexual behavior. His privileges were restored under the
conditions that he would be accompanied by a nurse during his patient
rounds and that he would seek professional help for his personality
problems. In addition, Dr. Morgan was warned that if other instances of
unprofessional conduct occurred, his privileges would be revoked.
CP at 11. Attached to the declaration is a redacted document pertaining to
Morgan, apparently from the combined credentials committee but labeled
'MONTICELLO MEDICAL CENTER ONLY'. CP at 54-55. This document was not a
part of Morgan's St. John peer review file; it was a part of Monticello's
records. See CP at 197. The document is not dated and not signed. CP at
54-55. The unredacted portion of the document refers to complaints by
Morgan's patients but does not describe the complaints or indicate the type
of the complaints. CP at 54. The conditions to which Coburn refers are
listed:
The recommendation {of} the Executive Committee is as follows:
* That Dr. Morgan be accompanied by a nurse on his hospital rounds -
* That Dr. Morgan have his nurse present during patient exams in his office
* That Dr. Morgan seek professional counseling for his personality problem
* That Dr. Morgan meet with the Executive Committee in 3 months to discuss
the steps he has taken with regard to his problem
* That if any other incidents occur of similar nature, it will be
recommended that his privileges be totally and permanently suspended.
CP at 54-55.
C.The Evidence Concerning 1994 Complaints and Actions Taken by
the Hospital
A meeting summary, dated November 9, 1994, which is unsigned but
apparently authored by Dr. Frank Marre, documents a meeting Marre had with
two female hospital employees who complained about Morgan's behavior in the
operating room. CP at 315. One of the employees complained that Morgan
frequently draws sexual inferences in the operating room, that he once bent
forward and kissed her on the top of her head, and that he has made
gestures as if handling her breasts when he puts on his gown. CP at 315.
Morgan had not actually touched her breasts. CP at 315. The other woman
confirmed Morgan's behavior. CP at 315. The employees were adamant that
Morgan receive oral warning but preferred that the staff not take more
aggressive action. CP at 315.
A letter to Morgan, signed by both Frank Marre, Assistant Administrator
for Medical Affairs, and Jim Reisner, President of the Medical staff, dated
November 16, 1994, documents a meeting on that day between these
individuals and Morgan. CP at 57. Also in attendance at the meeting was
George S. Fortner, Vice President of the Medical Staff. The letter
documents that Morgan had been informed that complainants alleged that he
had engaged in sexually suggestive comments, inappropriate touching, and
unwanted advances. CP at 57. Morgan was advised that the behavior was
objectionable, was creating a hostile work environment, and was in
violation of hospital policy and federal law. CP at 57. Morgan was warned
that any further occurrence would result in 'investigative action and/or
summary suspension.' CP at 57. Morgan was requested to provide a progress
report in 30 days. There is no evidence in the record concerning Morgan's
response to the complaints or the requested progress report.
D.Morgan's Letter to PeaceHealth's CEO
On September 5, 1996, Morgan wrote a letter to PeaceHealth's CEO
expressing concern about the effect of cost-cutting measures on patient
care. CP at 151. Morgan testified in a declaration that he also expressed
his concerns inside the hospital prior to writing the letter. CP at 199.
E.The Evidence Concerning the 1996 and 1997 Complaints and
Actions Taken by the Hospital
On October 22, 1996, Fortner forwarded to the Hospital's Health and Well
Being Committee a copy of a patient's complaint against Morgan that Fortner
received from Dr. Joe Davis. CP at 59. The hand-written, signed complaint
was dated September 30, 1996, and stated:
Before Dr. Powers left he sent me to Dr. Morgan (foot spec.) to get a toe
nail removed. (I'm still having problems with it {sic} its {sic} been over
a year {sic}) I will never go back to Dr. Morgan as when he was exam. my
toe he put his hand on my leg above my knee, I did not like it, it made me
feel very uncomfortable and he talked about how he used to use drugs ect.
{sic} when he was younger. {sic} Also I went back because I had {a}
growth on my toe where the nail was removed, it looked like scabs, anyway
he got a piece of gauze and put it on the toe then just squeezed it and
ripped off the scabs, it hurt so very bad. {sic} I cried, even his nurse
said there was no sense in him hurting me that way. I never complained
before because I thought no one cared because I did tell Dr. Powers and he
did not seem to think anything of it, but I saw Dr. Noel this Sat {sic} 9-
28-96 {sic} because I'm still having problems with my toe, I told him about
it and he felt I should report Dr. Morgan as he said Kaiser does not
tolerate that kind of behavior. {sic} I felt better after talking to Dr.
Noel.
CP at 60-61. There is no evidence in the record regarding any response
from the Health and Well Being Committee.
On January 22, 1997, Barbara Sherry, Medical Librarian, wrote a
memorandum to Dr. Gary Penner, President of the Medical Staff, reporting
that she had repeatedly witnessed Morgan 'go through other physician's
mailboxes,' including those of orthopedic physicians and the other
practicing podiatrist. CP at 148. She stated that she witnessed Morgan
remove an x-ray from the mailbox of a competitor and review it. CP at 148.
On February 4, 1997, Penner requested the Credentials Committee to
investigate a complaint:
I hereby request investigational action regarding a complaint which has
been filed against Bruce Morgan, DPM {sic} for inappropriate behavior.
This complaint comes in the context of a history of behavior related
concerns which are documented in the Medical Staff Office.
CP at 63.
On February 20, 1997, the Credentials Sub-Committee met to discuss Penner's
request. CP at 65. The meeting minutes indicate that the sub-committee
interviewed the medical librarian regarding her complaint. CP at 65. The
sub-committee decided to interview Morgan and to interview Fortner
regarding the patient complaint. CP at 65.
The Credentials Sub-Committee met again on February 27, 1997. CP at 67.
The meeting minutes indicate that the sub-committee first interviewed
Fortner regarding the patient complaint. CP at 67. The minutes reveal
only that Fortner 'summarized' this issue and 'another incident of
inappropriate behavior' involving Morgan. CP at 67. The sub-committee
then interviewed Morgan. CP at 67. Regarding the mailbox complaint,
Morgan explained that he frequently got mail belonging to other
practitioners and his mail was placed in others boxes, especially that of
the other podiatrist. CP at 67. He recognized that he had not handled the
misplaced mail problem correctly. CP at 67. He further explained that he
thought the x-ray report was for him. CP at 67. Regarding the patient
complaint, Morgan explained that the patient had misconstrued his adjusting
the armrest and helping the patient out of the examination chair. CP at
67. He offered a tour of his office to see the examination chairs. CP at
67. He stated that he had his assistant with him during that examination
and on most occasions. CP at 67. He told the sub-committee that he does
not abuse drugs and offered to be tested at any time. CP at 67.
The sub-committee recommended to the full Credentials Committee that
Morgan's privileges remain as granted with the provision that if any
further concerns or questions regarding inappropriate behavior were
reported, the committee would recommend that privileges be immediately
suspended and investigation action initiated. CP at 68.
On March 5, 1997, Morgan was informed that the Credentials Committee would
be reviewing the sub-committee's report on March 14 and that he was
entitled to an informal interview with the committee prior to its
recommendation to the Executive Committee. CP at 70. This notice also
informed Morgan that the sub-committee's report was available for his
review.
Despite the sub-committee's recommendation, the full Credentials Committee
apparently decided that further investigation was warranted. CP at 72. It
notified Morgan on March 24, 1997, that it would recommend to the Executive
Committee that Morgan obtain evaluation and counseling at an out-of-state
facility. The Credentials Committee made the following recommendations
regarding Morgan to the Executive Committee:
1. You obtain an evaluation through the Professional Assessment Program at
Abbott Northwestern Hospital in Minneapolis, Mn. {sic} or a substantially
similar program identified by you and approved by the Committee, within a
three month period of the adoption of these recommendations by the
Governing Board. The full cost of the program will be incurred by you.
The program will forward a full evaluation report to the Credentials
Committee upon your completion.
2. Whenever you are seeing a female patient in the Hospital you are
required to obtain & document the presence of another individual during
that patient visit. The responsibility of obtaining, documenting, and
securing the observer is yours. Documentation of these visits to be turned
into the Credentials Committee within seventy-two hours of each visit. The
monitoring will be required for a period of one year from the date of
approval of these recommendations by the Governing Board.
3. Your {sic} are required to revert mail that is in your box but does not
belong to you to the Medical Staff Coordinator for redistribution. You
should not be removing or inputting mail into any other practitioner's box
for any reason.
4. If there are any reported incidents of any inappropriate behavior
whatsoever, your privileges will be immediately summarily suspended pending
investigation.
CP at 72.
The parties point us to no evidence in the record that documents the
Credentials Committee's meeting or discussions nor any evidence offered to
explain the Credentials Committee's reasons for its recommendation.
Morgan requested and was granted the informal interview with the Executive
Board to which he was entitled under the bylaws. CP at 74. The meeting
minutes indicate that Morgan provided an explanation of the complaints
similar to that which he had provided to the Credentials Sub-Committee. CP
at 74. He added that his significant hearing loss causes him to lean into
people, which he thought might be misconstrued. He indicated that he was
willing to obtain an assessment locally but not the evaluation at Abbott
Northwestern, which he considered too expensive and beyond his means. He
requested a time extension to find another program.
On May 27, 1997, the Governing Board approved the Executive Committee's
first recommendation that Morgan obtain evaluation and counseling at Abbot
Northwestern, adding that Morgan must consent to the hospital's release to
the assessment program of information regarding identified issues and that
he must comply with the recommendations and actions identified as a result
of the completed assessment. The Governing Board also approved the third
recommendation concerning the mailboxes. Finally, the Governing Board
added that Morgan's privileges would be subject to summary suspension
pending investigation for failure to comply with the two requirements or if
any incidents of objectionable behavior were reported.
On August 18, 1997, the Governing Board extended Morgan's time to complete
an assessment to September 30, 1997, and warned that if he did not comply,
his privileges would be automatically suspended. CP at 80.
On September 30, 1997, Morgan was informed that his clinical privileges
were summarily suspended for failure to obtain an evaluation. CP at 82. A
copy of the hospital's bylaws was provided to Morgan.
On October 6, 1997, Morgan was provided official notice of an
investigational action and a copy of the pertinent bylaws sections. CP at
82. He was informed that he would have an opportunity to meet with the
investigational committee that would be appointed by the Credentials
Committee.
On October 10, 1997, Morgan met with the Credentials Sub-Committee. CP at
86. They discussed Morgan's failure to comply with the Governing Board's
requirements. The sub-committee recommended to the Credentials Committee
that Morgan's privileges be revoked.
Morgan was invited to the Credentials Committee meeting at which his
investigational action was discussed. CP at 90. He did not attend. CP at
90. The Credentials Committee recommended to the Executive Committee that
Morgan's clinical privileges be revoked.
The Executive Committee adopted the recommendation that Morgan's privileges
be revoked. CP at 92. On October 27, 1997, Morgan was given written
notice of this adverse action and informed of his right to request a review
hearing within 30 days. CP at 92. A follow-up letter dated October 29,
1997, again informed Morgan of his right to request a hearing and that the
failure to do so within 30 days would waive this right. CP at 94. He was
informed, along with other details, that he had the right to representation
by counsel at the hearing and the right to examine and cross-examine
witnesses and present evidence.
Morgan failed to request a hearing. CP at 96. Apparently, either the
Executive Committee's action then became final or the Governing Board
revoked Morgan's privileges.
F.Litigation
Morgan filed suit on November 27, 1997. The hospital filed a motion for
summary judgment on February 20, 1998. Asserting that his discovery
requests had gone largely unanswered, Morgan brought a motion to continue
the summary judgment and to compel discovery. The trial court denied the
motions.
Morgan also brought a motion to strike portions of Coburn's declaration and
the attached documents. Morgan argued that the 1981 and 1983 events
occurred before Coburn's tenure and thus she has no personal knowledge on
which to base her testimony. He objected to the testimony regarding the
events in 1994 and 1996 on the grounds that it contains hearsay and double
hearsay. The trial court denied the motion.
Finding that PeaceHealth was immune from liability for damages under the
HCQIA, the trial court granted partial summary judgment to PeaceHealth on
July 1, 1998. On September 10, 1998, the trial court granted summary
judgment to PeaceHealth on Morgan's claims for injunctive relief and
dismissed all claims.
ANALYSIS
I.Immunity Under the HCQIA
A. The HCQIA
One purpose behind the Health Care Quality Improvement Act is ' 'to
improve the quality of medical care by encouraging physicians to identify
and discipline physicians who are incompetent or who engage in
unprofessional behavior.' ' See Mathews v. Lancaster Gen. Hosp., 87 F.3d
624, 632 (3d Cir. 1996) (quoting H.R. Rep. No. 903, 99th Cong., 2d Sess. 2
(1986), reprinted in 1986 U.S.C.C.A.N. 6287, 6384)). Congress sought to
encourage self-regulation by physicians by 'granting limited immunity from
suits for money damages to participants in professional peer review
actions.' See Mathews, 87 F.3d at 632 (citing 42 U.S.C. sec.sec. 11101(5),
11111(a)). The statutory immunity provides for limitation of damages for
'professional review actions':
If a professional review action (as defined in section 11151(9) of this
title) of a professional review body1 meets all the standards specified in
section 11112(a) of this title, except as provided in subsection (b) of
this section--
(A) the professional review body,
(B) any person acting as a member or staff to the body,
(C) any person under a contract or other formal agreement with the body,
and
(D) any person who participates with or assists the body with respect to
the action,
shall not be liable in damages under any law of the United States or of any
State (or political subdivision thereof) with respect to the action.
42 U.S.C. sec. 11111(a)(1).2 We discuss the statutory standards that must
be met after addressing the preliminary issue of the character of the
hospital's actions.
B. A 'Professional Review Action' Under the HCQIA
The parties' arguments concerning whether the hospital enjoys immunity
under the HCQIA requires us to first determine the nature of the actions
taken by the hospital. 'Professional review actions' are entitled to
immunity only if they meet certain standards, including adequate notice and
fair procedures. See 42 U.S.C. sec. 11112(a). The trial court
characterized all the actions by the hospital prior to the suspension of
Morgan's privileges as 'professional review activities', as distinguished
from 'professional review actions.' CP at 295-96. That is, the trial
court found that the Governing Board's approval of the Executive
Committee's recommendation that Morgan undergo counseling and evaluation in
the selected or approved program with notice that failure to do so would
result in summary suspension of his privileges pending investigation was
not a professional review action that is subject to the standards and
procedures required for immunity. Morgan argues that this finding by the
trial court is in error because the recommendation could have eventually
affected his privileges. A proper analysis of the immunity question
requires us to determine what actions by the hospital are subject to the
HCQIA standards.
The HCQIA defines 'professional review action':
The term "professional review action" means an action or recommendation of
a professional review body which is taken or made in the conduct of
professional review activity, which is based on the competence or
professional conduct of an individual physician (which conduct affects or
could affect adversely the health or welfare of a patient or patients), and
which affects (or may affect) adversely the clinical privileges, or
membership in a professional society, of the physician. Such term includes
a formal decision of a professional review body not to take an action or
make a recommendation described in the previous sentence and also includes
professional review activities relating to a professional review action.
42 U.S.C. sec. 11151(9).
'Professional review activity' is separately defined:
The term "professional review activity" means an activity of a health care
entity with respect to an individual physician--
(A) to determine whether the physician may have clinical privileges with
respect to, or membership in, the entity,
(B) to determine the scope or conditions of such privileges or membership,
or
(C) to change or modify such privileges or membership.
42 U.S.C. sec. 11151 (10).
Courts interpreting these definitions have concluded that a professional
review action includes 'decisions or recommendations that directly curtail
a physician's clinical privileges or impose some lesser sanction that may
eventually affect a physician's privileges' but not a 'decision or
recommendation to monitor the standard of care provided by a physician or
factfinding to ascertain whether a physician has provided adequate care.'
Mathews, 87 F.3d at 634. These latter are professional review activities.
See id. In Mathews, a letter informed the physician that a review
committee recommended that 27 of the physician's case files should be sent
to an independent agency for further review and that if the agency agreed
with the committee's conclusion that the cases were not managed in an
acceptable fashion, a restriction of his privileges would be indicated.
See id. at 629. The court found that this action was a professional review
activity, not a professional review action, because it did not curtail
privileges. See id. at 634; see also Austin v. McNamara, 979 F.2d 728, 735-
36 (9th Cir. 1992). But see Fobbs v. Holy Cross Health Sys. Corp., 789 F.
Supp. 1054, 1065 (E.D. Cal. 1992) (characterizing monitoring restraints,
including requiring the physician to obtain a second opinion on all
admissions and have a monitor present during all surgical procedures, as a
review action), rev'd in part on other grounds, 29 F.3d 1439 (9th Cir.
1994).
Here, we agree with the trial court's conclusion that only the
suspension of privileges constitutes a professional review action. The
activity prior to this action constitutes professional review activity.
The recommendation that Morgan obtain evaluation and counseling at either
the facility selected by the hospital or one approved by the committee did
not curtail his privileges and is similar to the action taken in Mathews.
The evaluation and counseling was part of an assessment and fact-finding
process. Immunity here does not depend on whether the actions surrounding
the recommendation that Morgan obtain evaluation and counseling complied
with the HCQIA requirements. PeaceHealth in entitled to immunity if the
suspension and revocation actions meet the HCQIA standards.
C.The HCQIA Standards for Immunity
A professional review body is entitled to immunity if its professional
review actions meet four standards:
For purposes of the protection set forth in section 11111(a) of this title,
a professional review action must be taken--
(1) in the reasonable belief that the action was in the furtherance of
quality health care,
(2) after a reasonable effort to obtain the facts of the matter,
3) after adequate notice and hearing procedures are afforded to the
physician involved or after such other procedures as are fair to the
physician under the circumstances, and
(4) in the reasonable belief that the action was warranted by the facts
known after such reasonable effort to obtain facts and after meeting the
requirement of paragraph (3).
A professional review action shall be presumed to have met the preceding
standards necessary for the protection set out in section 11111(a) of this
title unless the presumption is reed by a preponderance of the
evidence.
42 U.S.C. sec. 11112(a).
Under the statutory presumption, Morgan has the burden of establishing
by a preponderance of the evidence that the hospital did not meet the
standards for immunity. See Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d
378, 388 (3d Cir. 1999); Wayne v. Genesis Med. Ctr., 140 F.3d 1145, 1148
(8th Cir. 1998). This burden adds an 'unconventional twist' to the
summary judgment standard of review. Sugarbaker v. SSM Health Care, 190
F.3d 905, 912 (8th Cir. 1999), cert. denied, 120 S. Ct. 980 (2000).
Viewing the evidence in the light most favorable to Morgan, we must
determine whether he satisfied his burden of producing evidence that would
allow a reasonable jury to conclude that the hospital's review action
failed to meet the HCQIA standards. See id.; Brader v. Allegheny Gen.
Hosp., 167 F.3d 832, 839 (3d Cir. 1999); Bryan v. James E. Holmes Regional
Med. Ctr., 33 F.3d 1318, 1334 (11th Cir. 1994).
Morgan argues that this presumption applies only to the first standard,
which requires that the hospital act with the reasonable belief that the
action was in the furtherance of quality health care, and not to the
remaining three standards. Morgan points us to the Fobbs court, which
stated that 'it is clear that the presumption provided in sec. 11112(a)
refers only to the reasonable belief standard of sec. 11112(a)(1), not to
the reasonable belief standard of sec. 11112(a)(4).' 789 F. Supp. at 1069.
The Fobbs court relied on legislative history regarding the statutory
presumption:
{r}eflecting the Committee's belief that {the objective 'reasonable
belief'} standard will be met in the overwhelming majority of professional
review actions, the subsection provides a presumption to that effect,
requiring a plaintiff to show, by clear and convincing evidence, that no
such reasonable belief existed at the time of the professional review
action. This presumption applies only to the reasonable belief standard,
not to the other standards. Those additional standards require a group
engaged in peer review to make a reasonable effort to obtain the facts, to
provide adequate due process, and to have a reasonable belief that the
professional review action was warranted by the facts known.
789 F. Supp. at 1069 (quoting H.R. Rep. No. 903, 99th Cong., 2d Sess. 10,
reprinted in 1986 U.S.C.C.A.N. 6384, 6393).
Legislative history notwithstanding, the plain words of the statute make
the presumption applicable to all four of the standards: '{a} professional
review action shall be presumed to have met the preceding standards'. 42
U.S.C. sec. 11112(a). 'Standards' is plural. Moreover, circuit courts
consistently apply the presumption to the other standards, including the
Ninth Circuit, in which the Fobbs court is located. See, e.g., Smith v.
Ricks, 31 F.3d 1478, 1485-87 (9th Cir. 1994); Sugarbaker, 190 F.3d at 916-
17; Bryan, 33 F.3d at 1334-37; Mathews, 87 F.3d at 634-38. We find that
the presumption applies to all of the standards in section 11112(a).
Finally, Morgan argues that the HCQIA immunity applies only to review
actions addressing medical incompetence involving patient injury and
asserts that none of the complaints against him involved patient care or
injury at St. John (the complaint regarding patient care arose out of an
incident occurring at Morgan's office, not at the hospital). Morgan thus
contends that the HCQIA does not apply here where the complaints concern
'objectionable behavior'. But under the plain language of the statute, it
applies to actions taken in response to both the competence and
professional conduct of the physician. See 42 U.S.C. sec. 11151(9).
Nothing in the statute or case law indicates that immunity does not lie for
actions taken in response to unprofessional conduct unrelated to the
technical proficiency of the physician. See e.g., Bryan, 33 F.3d at 1326
(finding immunity where the action was taken in response to more than 50
written incident reports involving unprofessional or disruptive behavior
including complaints regarding the physician's abusive treatment of nurses,
technicians, and fellow physicians). Undoubtedly, unprofessional conduct
may adversely affect the quality of health care. Even unprofessional
conduct toward other staff members may detrimentally affect patient care.
See id. We conclude that the HCQIA is not limited to review actions taken
in response to patient injury and find that the HCQIA applies here.
We can now turn to an evaluation of whether the hospital met the four
requirements for immunity.
1.Reasonable Belief that the Action Was in the Furtherance of
Quality Health Care
Morgan argues that he has reed the presumption that the hospital's
peer review investigation and action was taken with the reasonable belief
that it was in furtherance of the quality of health care because (1) the
action was based upon only four complaints spread over seventeen years, two
of which arose out of events occurring outside of St. John, and (2) the
peer review activities and action took place against a backdrop of Morgan's
complaints regarding PeaceHealth's cost-cutting measures and the adverse
effects on the quality of care at St. John's. Thus, he argues that a
reasonable jury could find that the peer review action was in retaliation
and not in the furtherance of quality health care.
The reasonable belief required by the first prong is measured by an
objective standard. See Pamintuan, 192 F.3d at 389; Bryan, 33 F.3d at
1335. Any bad faith on the part of the hospital is irrelevant. See
Pamintuan, 192 F.3d at 389; Bryan, 33 F.3d at 1335. 'This prong of the
HCQIA immunity test is met if 'the reviewers, with the information
available to them at the time of the professional review action, would
reasonably have concluded that their action would restrict incompetent
behavior or would protect patients.'' Bryan, 33 F.3d at 1334-35 (quoting
H.R. Rep. No. 903, at 10, reprinted in 1986 U.S.C.C.A.N. at 6393).
Morgan points us to Boczar v. Manatee Hosps. and Health Sys., Inc., 993
F.2d 1514 (11th Cir. 1993), where the court reversed a judgment
notwithstanding the verdict that the trial court entered after the jury
awarded the physician damages on her antitrust conspiracy action. The
court found sufficient evidence for a jury to infer that peer review
proceedings against the physician were a sham and part of an unlawful
conspiracy on the part of the hospital and staff. See id. at 1519. But
Boczar never discusses application of the HCQIA, and the physician
presented testimony at trial tending to show that one of the complaints
against her was manufactured or exaggerated. See id. at 1518-19.
We find, under an objective measure, that Morgan has not reed the
presumption that the hospital's peer review action meets the first
standard. His evidence of his expressed concerns over cost cutting by
PeaceHealth is insufficient. There is no evidence that Morgan reported his
concerns to the press or a regulatory agency. The letter was not
threatening and voiced concerns in a reasonable manner. Morgan presents no
evidence that links the expression of his concerns with the actions by the
hospital.
2.Reasonable Effort to Obtain the Facts of the Matter
The relevant inquiry under the second requirement is whether the totality
of the process leading up to the professional review action evidenced a
reasonable effort to obtain the facts of the matter. See Mathews, 87 F.3d
at 637.
While Morgan does not bring forth specific evidence to rebut the fact-
finding process, he argues the lack of evidence. There is only one
complaint directly involving patient care. This complaint involved follow-
up treatment of a toenail. There is no evidence that the hospital
interviewed the patient or reviewed the patient's medical file. There is
no evidence that the hospital attempted to interview the other doctors that
the patient contacted concerning the incident. There is no evidence in the
record that the hospital concluded that the treatment actually fell below
the accepted standard of care.
The same complaint alleged inappropriate touching by Morgan. Again, there
is no evidence that the hospital attempted to interview the patient or the
doctor to whom she personally related the incident to determine the
seriousness of the conduct.
There is no evidence in the record that the hospital conducted any further
investigation of 1994 complaints regarding sexually suggestive comments,
inappropriate touching, and unwanted advances. There is no evidence in the
record that suggests that the hospital conducted follow-up interviews with
the complaining employees to determine whether any further inappropriate
behavior had occurred.
Regarding the mail box complaint, the hospital interviewed only one of its
own employees. There is no evidence in the record before us as to the
number of incidents of viewing others' mail nor the duration of this
behavior. Except for the one x-ray, there is no evidence in the record
that the hospital found that the mail that was inappropriately viewed by
Morgan was patient-related or that he otherwise breached patient
confidentiality.
But Morgan's privileges were not suspended and then revoked because of any
one complaint nor even because of the accumulation of complaints. His
privileges were suspended because he failed to obtain evaluation and
counseling. In effect, the hospital, by requiring evaluation, was
attempting to make further investigation into Morgan's conduct. The
evidence of inappropriate behavior was sufficient to warrant further
investigation. Morgan may not now complain that the hospital failed to
obtain the facts of the matter where Morgan declined to cooperate in the
investigation by failing to undergo evaluation. We find that Morgan has
not reed the presumption that the hospital failed to make reasonable
effort to obtain the facts of the matter.3
3.Adequate Notice and Hearing Procedures
The HCQIA provides a safe harbor clause regarding the adequate notice and
fair procedures requirements:
A health care entity is deemed to have met the adequate notice and hearing
requirement of subsection (a)(3) of this section with respect to a
physician if the following conditions are met (or are waived voluntarily by
the physician):
(1) Notice of proposed action
The physician has been given notice stating--
(A)(i) that a professional review action has been proposed to be taken
against the physician,
(ii) reasons for the proposed action,
(B)(i) that the physician has the right to request a hearing on the
proposed action,
(ii) any time limit (of not less than 30 days) within which to request such
a hearing, and
(C) a summary of the rights in the hearing under paragraph (3).
(2) Notice of hearing
If a hearing is requested on a timely basis under paragraph (1)(B), the
physician involved must be given notice stating--
(A) the place, time, and date, of the hearing, which date shall not be less
than 30 days after the date of the notice, and
(B) a list of the witnesses (if any) expected to testify at the hearing on
behalf of the professional review body.
42 U.S.C. sec. 11112(b).
We find that the Hospital met these provisions in regard to the review
action of suspension of privileges. Morgan was informed of every
recommendation of each committee reviewing his conduct. He was notified
that the Executive Committee recommended to the Governing Board that he
obtain evaluation and counseling. He was notified that the Governing Board
approved this recommendation and that noncompliance would result in
suspension. His time for compliance was extended and he was again warned
that noncompliance would result in suspension. Thus he was notified of the
proposed suspension and the reasons for it. When the Credentials Committee
made its recommendation to the Executive Committee that Morgan obtain
evaluation, he was provided a copy of the bylaws, which describe the
investigational action process. When his privileges were suspended, he was
again provided with a copy of the bylaws. Morgan met with the Credentials
Sub-Committee after the suspension. When his privileges were revoked, he
was advised of his right to
request a hearing within 30 days. His failure to do so waived his right to
a hearing at this point.4
Morgan argues that the Credentials Committee ignored the recommendation
of its sub-committee that his privileges should remain the same. But the
fact that varying review committees differed on its conclusions does not
undermine the fairness of the procedures. See Sugarbaker, 190 F.3d at 915.
In his recitation of the facts, Morgan also implies some appearance of
unfairness in that Fortner, who forwarded the patient complaint to the
Health and Well Being Committee, was married to the chair of the
Credentials Committee, and that Fortner was on multiple committees. But
Morgan waived any such complaint by failing to make contemporaneous
objection to the procedures employed. See Sugarbaker, 190 F.3d at 915.
We find that Morgan has not reed the presumption that the notice and
procedures were fair.
4.Reasonable Belief that the Action Was Warranted by the
Facts Known After Such Reasonable Effort to Obtain Facts and After Adequate
Notice and Procedures
The analysis under section 11112(a)(4), requiring a reasonable belief
that the action was warranted given the facts known at the time, closely
tracks the analysis under section 11112(a)(1), requiring a reasonable
belief that the action furthered quality health care. See Sugarbaker, 190
F.3d at 916.
Again, the hospital did not suspend and then revoke Morgan's privileges
because of the complaints but rather because he failed to comply with the
hospital's requirement that he obtain evaluation and counseling. It is not
unreasonable to conclude that a physician's failure to comply with
investigation and failure to undergo evaluation and counseling might impact
patient care. Morgan's inappropriate behavior was sufficient to warrant
additional evaluation. We find that Morgan has not reed the reasonable
belief that his failure to comply with the evaluation requirement warranted
suspension.
D.Conclusion of HCQIA Immunity Analysis
Because Morgan failed to rebut the presumption that the hospital satisfied
the HCQIA immunity requirements, we find that PeaceHealth is entitled to
immunity from liability for damages.5
II. Discovery
Morgan assigns error to the trial court's denial of his motion to compel
discovery. He also argues that the trial court erred in refusing to grant
his motion to continue the summary judgment because his discovery was
incomplete. He asserts that he sought discovery on whether the hospital's
actions were reasonable, indicated bias, were procedurally different than
like action taken against others, or were retaliatory in nature.
CR 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that he
cannot, for reasons stated, present by affidavit facts essential to justify
his opposition, the court may refuse the application for judgment or may
order a continuance to permit affidavits to be obtained or depositions to
be taken or discovery to be had or may make such other order as is just.
'A ruling on a CR 56(f) motion for a continuance is reviewed for manifest
abuse of discretion. Discretion is not abused if: (1) the requesting party
does not offer a good reason for the delay in obtaining the desired
evidence; (2) the requesting party does not state what evidence would be
established through the additional discovery; or (3) the desired evidence
will not raise a genuine issue of material fact.' Janda v. Brier Realty,
97 Wn. App. 45, 54, 984 P.2d 412 (1999) (internal quotations and citations
omitted).
The unanswered discovery that Morgan sought in his first and second
requests for production and interrogatories was not likely to raise a
genuine issue of material fact because it pertained primarily to
information concerning other health care providers. This information was
irrelevant because the inquiry under the HCQIA immunity issue is whether
the hospital met the standards in its review of Morgan and not how that
review compares with other investigations or discipline. Nor is the
competency of other doctors relevant to whether the hospital conducted a
reasonable review of Morgan. See Pamintuan, 192 F.3d at 389. We find that
the trial court did not abuse its discretion by denying the motion to
compel and the motion to continue because the discovery sought was
irrelevant.
III. Evidentiary Rulings
Morgan argues that the trial court erred in refusing to strike the
declaration of Coburn, who had been the Hospital's risk manager since 1989.
He contends that Coburn had no personal knowledge of the events occurring
in 1981 to which she testified. He also argues that her testimony
regarding later events contains hearsay and double hearsay. Apparently,
the only supporting document which Morgan claims should be stricken is the
Monticello document related to the 1981 complaint.
'A trial court has broad discretion in ruling on evidentiary matters and
will not be overturned absent manifest abuse of discretion.' Sintra, Inc.
v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997).
But regardless of whether the trial court erred in considering the
evidence to which Morgan objects, any error is harmless. This court
performs a de novo review of a summary judgment. As Morgan states, the
supporting documents speak for themselves. Coburn's declaration is little
more than a detailed index of the supporting documents. Our conclusions
are not based on information found in Coburn's declaration but on the
underlying documents themselves. Moreover, we come to the same conclusion
that the hospital is entitled to immunity if we ignore the Monticello
document related to the 1981 complaint because the suspension review action
was taken not due to the complaints alone but due to Morgan's failure to
obtain evaluation and counseling.
IV. Injunctive Relief
Under the Washington Health Care Peer Act, RCW 7.71.030, Morgan is entitled
to injunctive relief only for actions not related to Morgan's professional
conduct. We find that the review action was related to Morgan's
professional conduct; he has no action for injunctive relief.
V. Attorney Fees
PeaceHealth requests attorney fees under RAP 18.1 and the HCQIA, which
provides:
In any suit brought against a defendant, to the extent that a defendant has
met the standards set forth under section 11112(a) of this title and the
defendant substantially prevails, the court shall, at the conclusion of the
action, award to a substantially prevailing party defending against any
such claim the cost of the suit attributable to such claim, including a
reasonable attorney's fee, if the claim, or the claimant's conduct during
the litigation of the claim, was frivolous, unreasonable, without
foundation, or in bad faith. For the purposes of this section, a defendant
shall not be considered to have substantially prevailed when the plaintiff
obtains an award for damages or permanent injunctive or declaratory relief.
42 U.S.C. sec. 11113.
We deny attorney fees and costs on appeal to PeaceHealth under RAP 18.1
and 42 U.S.C. sec. 11113 because we do not find that Morgan's claim is
frivolous, unreasonable, without foundation, or in bad faith.
CONCLUSION
Finding that PeaceHealth is entitled to immunity under the HCQIA, we
affirm.
WE CONCUR
1 42 U.S.C. sec. 11151 (11) provides: 'The term 'professional review body'
means a health care entity and the governing body or any committee of a
health care entity which conducts professional review activity, and
includes any committee of the medical staff of such an entity when
assisting the governing body in a professional review activity.'
2 Our legislature adopted the federal HCQIA as law in Washington. See RCW
7.71.020. Washington law further provides express and exclusive remedy for
professional review actions based on matters other than competence or
professional conduct:
(1) This section shall provide the exclusive remedy for any action taken by
a professional peer review body of health care providers as defined in RCW
7.70.020, that is found to be based on matters not related to the
competence or professional conduct of a health care provider.
(2) Actions shall be limited to appropriate injunctive relief, and damages
shall be allowed only for lost earnings directly attributable to the action
taken by the professional review body, incurred between the date of such
action and the date the action is functionally reversed by the professional
peer review body.
RCW 7.71.030.
3 We note that although Morgan objected to the expense of the evaluation
and counseling program that the hospital selected, he has not argued to
this court that the hospital's choice was a pretext, that is, that the
hospital purposefully chose an unreasonably expensive program in order to
set up Morgan's failure and the consequential revocation of his privileges.
Morgan has brought forth no evidence to show that the hospital unreasonably
rejected a local or less expensive evaluation program that was sufficient
and reasonable under the circumstances. Nor has Morgan specifically argued
that his behavior was insufficient to warrant some evaluation and
counseling.
4 Morgan complains that he was not afforded a hearing, but this argument
depends on his characterization of the recommendation that he obtain
evaluation and counseling as a review action. Because we found above that
the hospital's activities prior to the suspension were not review actions,
the hearing which Morgan claims he was not afforded was not required.
Furthermore, the specific provisions of section 11112(b) are only a safe
harbor and are not necessarily required. The standard requires only that
the notice and procedures be fair under the circumstances. The procedures
used throughout the review process here, although informal, were fair under
the circumstances.
5 Because we find that PeaceHealth is entitled to immunity, we need not
address Morgan's claims for violation of the CPA, interference with
business expectancy, or violation of the Washington Constitution.
