Poirier v. Our Lady of Bellfonte Hosp.

RENDERED: FEBRUARY 17, 2006; 10:00 A.M.
NOT TO BE PUBLISHED

Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002335-MR

APPELLANT

APPELLEE

APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
ACTION NO. 03-CI-00494

WILLIAM POIRIER, M.D.

v.

OUR LADY OF BELLEFONTE HOSPITAL, INC.

OPINION
AFFIRMING

** ** ** ** **

BEFORE: BARBER, DYCHE, AND MINTON, JUDGES.
BARBER, JUDGE: Appellant, William Poirier, M.D. (Poirier),
appeals the Greenup Circuit Court dismissal of his complaint
against the Appellee, Our Lady of Bellefonte Hospital, Inc.,
(Bellefonte Hospital). We find no reversible error in the
circuit court’s dismissal of the complaint.
Dr. Poirier is a physician who practiced in Russell
County, Kentucky. Dr. Poirier was given temporary staff
privileges at Bellefonte Hospital on August 23, 2001. The
hospital alleges that during the six month period in which Dr.
Poirier had temporary privileges at Bellefonte Hospital, he
displayed a recurring pattern of unacceptable and unprofessional

behavior. This behavior was not in relation to medical ability,
but in relation to interpersonal skills. The record contains
extensive documentary evidence showing that Dr. Poirier had
meetings with supervisory personnel regarding improper comments
made to and about staff persons. Despite several meetings on
this issue, complaints regarding Dr. Poirier’s verbal actions
continued.
On December 18, 2001, Dr. Poirier treated an autistic
ten year old child. During the course of treatment Dr. Poirier
allegedly acted and spoke in an unprofessional manner.
Complaints against Dr. Poirier were made by support staff.
Charges were brought against Dr. Poirier under Section 6.4 of
the Medical Staff Bylaws. On January 24, 2002, Bellefonte
Hospital notified Dr. Poirier that his temporary privileges were
again suspended due to allegations regarding his treatment of a
minor patient. The patient was a special needs autistic child
who was brought in by daycare providers. The child had pencil
erasers in both ear canals. Dr. Poirier was charged with having
used excessive restraint of the child while attempting to treat
the child. Dr. Poirier was also accused of using unprofessional
remarks to and about the patient, namely referring to the child
as “retarded.” Note was also made of prior allegations of
unprofessional language by Dr. Poirier, one statement having

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been of a sexual nature, and the other having been of a
political nature.
Dr. Poirier was denied continuing staff privileges by
Bellefonte Hospital after internal hearings were conducted on
May 8 and May 13, 2003. On June 3, 2003 the panel denied Dr.
Poirier staff privileges.
Dr. Poirier testified at the hearing regarding his
potential denial of privileges. Another physician and Dr.
Poirier’s office staff member testified at the hearing on Dr.
Poirier’s behalf. Dr. Poirier testified that the child was
anxious and difficult to treat. For this reason, Dr. Poirier
scheduled an emergency surgery so that the child could be
sedated prior to treatment. Dr. Poirier contends that
scheduling an emergency procedure so late in the day angered the
surgical staff. Dr. Poirier alleges that the child was not
properly supervised in the surgical waiting room. He admitted
making comments about the lack of supervision of the child, both
at the time he managed to put the erasers in his ears, and in
the waiting room.
After review of the complaints against Dr. Poirier,
and the testimony given in his defense, the Board denied Dr.
Poirier staff privileges. Dr. Poirier appealed the decision,
and the appeal was denied.

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Dr. Poirier then filed a civil complaint in circuit
court. In the complaint Dr. Poirier asserted both that he was
improperly denied privileges by the hospital, and also that the
denial of privileges was an attempt to gain financial leverage
over Dr. Poirier. After briefing by both parties and a hearing
on the issues presented, the trial court dismissed Dr. Poirier’s
complaint. Dr. Poirier asserts that the dismissal was in error
because he was not permitted to make discovery regarding whether
the hospital was acting in a reasonable manner to further the
quality of health care at the hospital.
The Medical Staff Bylaws require physicians practicing
at Bellefonte Hospital to use a generally recognized
professional level of quality. Bylaws, Section 1.2. The Bylaws
provide, at Section 2.2, that a grant of temporary privileges
does not ensure an award of regular staff privileges.
Privileges may be granted or denied by the Board. Bylaws,
Section 2.1. If privileges are denied, the affected physician
may request a fair hearing. Bylaws, Section 6.7. Before the
denial of privileges, Dr. Poirier had his temporary privileges
suspended twice due to staff claims of improper comments and
conduct by Dr. Poirier. Supervisory hospital personnel
testified that they had met with Dr. Poirier and cautioned him
to amend his behavior so that his statements would not cause
offense to his co-workers.

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The law provides that members of a hospital review
board are immune from claims for monetary damages by the Health
Care Quality Improvement Act of 1986, 42 U.S.C Section 11111 if
the action taken by the board is reasonable, and a fair hearing
is provided to the affected physician. Meyers v. Columbia/HCA
Health Care Corp., 341 F.3d 461 (6th Cir. 2003). The findings of
an administrative body cannot be set aside unless the evidence
presented by the plaintiff is so persuasive that the
determination must be made in favor of the plaintiff. Kentucky
Unemployment Insurance Commission v. Murphy, 539 S.W.2d 293, 294
(Ky. 1976). That was not the case here. The record shows that
the hospital conducted a hearing; that Dr. Poirier was permitted
to make a defense to the charges against him, and that Dr.
Poirier was permitted to appeal the adverse determination. At
every level of the proceedings evidence supported a finding that
Dr. Poirier had made the remarks attributed to him, and that
those remarks created a negative work environment for other
employees.
The trial court’s Order of Dismissal stated that:
Upon appeal from an administrative
agency, charged with the duty of fact
finding, a reviewing court is not free to
substitute its judgment for that of the
agency unless the latter acted in an
arbitrary or capricious manner. Piper v.
The Singer Company, 663 S.W.2d 761, 763
(Ky.App. 1984) . . . The reviewing court is
limited to review the record made before the

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MEC panel and Board, and, where it has found
against Dr. Poirier, the findings of fact of
the panel will not be disturbed unless the
evidence is so persuasive that one would
have no choice but to find for Dr. Poirier.
Johnson v. Galen health Care, Inc., 39
S.W.3d 828 (Ky.App. 2001) . . . The Court
does not find the evidence submitted by the
Plaintiff, Dr. Poirier, to be persuasive.

Id. An administrative determination may be upheld even where
contrary evidence has been presented, so long as substantial
evidence supports the administrative decision. Kentucky
Unemployment Ins. Commission v. Landmark Community Newspapers of
Kentucky, Inc., 91 S.W.3d 575, 578 (Ky. 2002).
The Courts use a three pronged test to determine
whether the administrative decision should be upheld. This
includes a review of the scope of the administrative powers;
whether or not the affected employee was permitted to exercise
his due process rights, and whether substantial evidence
supported the final determination. In this case the
administrative body acted within the powers permitted it by the
hospital Bylaws. Dr. Poirier was permitted a due process
hearing. Lastly, substantial evidence supported the final
decision. Under such circumstances this Court may not
substitute its judgment for that of the administrative body.
For the foregoing reasons, the decision must stand as written.
We find no reversible error in the trial court’s dismissal of
Dr. Poirier’s complaint.

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ALL CONCUR.

BRIEF FOR APPELLANT:

Gordon J. Dill
Ashland, Kentucky

BRIEF FOR APPELLEE:

Richard W. Martin
Ashland, Kentucky

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