Schindler v. Marshfield Clinic

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN D ISTRICT OF W ISCONSIN

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JAY J. SCHINDLER ,

Plaintiff,

OPIN ION and ORDER

05-C -705-C

MARSHFIELD CLINIC , PAUL L . LISS ,
ROBERT K . GRIBBLE, DONALD B . KELMAN
JOHN H . NEAL , RODNEY W . SORENSON ,
TOM FACISZEWSKI, KEVIN RUGGLES ,
JAMES P. CONTERATO , FREDERIC P.
WESBROOK , GARY P . MAYEUX , ROBERT A .
CARLSON , DAVID J. SIMENSTAD , TIMOTHY
R . BOYLE, DANIEL G . CAVANAUGH , GARY
R . DEGERMAN , DOUGLAS J. REDING , and
IVAN B . SCHALLER ,

Defendants.

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In th is civil action for in junctive and monetary relief, p laintiff Jay J. Sch ind ler

contends that by failing to follow proper employment policies and term inating him w ithout

good cause, (1) defendant Marshfield C linic breached the term s of its employment contract

w ith him ; (2) defendants Marshfield Clinic, Paul Liss, Robert G ribble, Donald Kelman, John

Neal and Rodney Sorenson tortiously in terfered w ith his employment contracts w ith

defendant Marshfield C linic; unspecified defendants tortiously interfered w ith his

employment contracts w ith the Luther M idelfort C linic; defendants Marshfield C linic, Liss,

John Neal, James Con terato and other unspecified defendants tortiously interfered w ith his

prospective contracts with other employers and insurers; defendants Marshfield Clinic, Neal

and Tom Faciszewski defamed him ; and all defendants inflicted emotiona l distress upon h im

both intentionally and negligently. Jurisd iction is present under 28 U .S .C . § 1332 .

Now before the court is defendants’ motion for partial summary judgment, in which

defendan ts contend that they are en titled to qualified immun ity under the Health Ca re

Quality Improvement Act of 1986, 42 U .S.C . § 11101-12, for all act ions taken in

connection w ith plaintiff’s term ination from employment at the hospital. Because plaintiff

has not come forward w ith evidence reing the presum ption in favor of immunity for

members of the clinic’s executive comm ittee, defendants’ motion w ill be granted w ith respect

to defendants Con terato, Frederic W esbrook , Gary Mayeux, Robert Ca r lson , David

Simenstad, Timothy Boyle, Daniel Cavanaugh, Gary Degerman, Douglas Reding and Ivan

Schaller. In addition , the motion w i ll be granted w ith respect to defendant L iss’s decision

to suspend p laintiff summarily on December 4 , 2003. However, d isputed material facts

preclude the court from determ ining as a matter of law whether defendants Liss, G ribble,

Kelman , Neal and Sorenson and Ruggles are entitled to immun ity from damages arising in

connection w ith their decision to term inate p laintiff’s emp loyment on December 17 , 2003 .

Consequently, defendants’ motion for summary judgment w ill be denied w ith respect to the

request of defendants L iss, G ribble, Kelman , Neal and Sorenson and Ruggles to be granted

immun ity for the actions they took as members of plaintiff’s pro fessional review comm ittee.

Before turning to the undisputed facts, som e mention must be made of plaintiff’s

proposed findings of fact, which do not conform to this court’s procedures. This is not the

first time plaintiff has disregarded summary judgment procedures in this court. See, e,g.,

Order dated Aug. 7 , 2006 , dkt. #96 , at 3 (“the facts proposed by p laintiff . . . are irrelevant

to the legal questions at issue in the cross-motions for summary judgment”); O rder dated

Aug. 18 , 2006 , dkt. #135 , at 3 -4 (“The problem w ith plaintiff’s amended supp lement is not

its untimeliness but the fact that it fails to comport w ith this court’s procedures for summary

judgm ent. . .”); Order dated Aug. 18 , 2006 , dkt. #134 (striking plaintiff’s proposed find ings

of fact and providing him “one final opportunity to comply w ith this court’s procedures”).

Although the court’s August 18, 2006 order, dkt. #134, directed plaintiff to redraft his

proposed findings o f fact to comply with the court’s procedures, he did not do so. The

changes he has made are m inimal and do little to resolve the problems present in his first

draft. Repeatedly, plaintiff has proposed facts that are not supported by citations to

adm issib le evidence. Moreover, the vast majority of p laintiff’s proposed findings are not

legally relevant to the pending motion. Where plaintiff’s proposed findings of fact are

immaterial or unsuppo rted by proper citation to adm issible evidence, they have been

disregarded.

From the parties’ remaining proposed findings of fact, I find the follow ing to be

material and undisputed.

UNDISPUTED FACTS

A. Parties

Pla in tiff Jay Schind ler is a neurosurgeon specializing in complex spine procedures.

He is a citizen of South Dakota. P laintiff graduated from the Ya le Un iversity Schoo l of

Medicine and completed his neurosurgery training at the Mayo Clinic in Rochester,

M innesota.

Defendant Marshfield Clinic is a W isconsin nonprofit corporation w ith its principal

place of business in Marshfield, W isconsin. The clinic provides health care services.

Defendants Paul Liss, Robert Gribble, Donald Kelman , John N eal and Rodney

Sorenson are doctors employed by the Marshfield C linic. Each was a member of plaintiff’s

pro fessional review comm ittee. Each is a citizen of W isconsin.

Defendant Kevin Rugg les is a doctor form erly employed by the Marshfield C linic.

He is a citizen of Illino is and was a member of plaintiff’s professional review comm ittee.

Defendant Paul Con terato is a doctor employed by the Marshfie ld C linic. In

addition , he is Chief of Staff at St. Joseph’s Hosp ital and in that capacity served as a member

of the clinic’s executive comm ittee. He is a citizen of W isconsin.

Defendants Frederic W esbrook, Gary Mayeux, Robert Carlson, David Simenstad,

Timothy Boyle, Daniel Cavanaugh, Gary Degerman, Douglas Reding and Ivan Schaller are

doctors employed by the Marshfield C linic and members of the clinic’s executive comm ittee.

Each is a citizen of W isconsin.

B . Plaintiff’s Employment w ith the Marshfield C linic

Plaintiff was employed by the Marshfield C linic from August 19, 2002, to December

18 , 2003 . In August 2002, he was h ired as an associate physician and entered into a two –

year contract w ith the clinic that prov ided he wou ld not be fired w ithout cause.

During plaintiff’s first year of employment, he perform ed a high number of surgeries.

During h is second year of emp loyment he received several sign ificant raises in recogn ition

of his high surgical “production rate” and in an attempt to dissuade him from leaving the

clinic to obtain higher paying employment.

As a term of his employment, plaintiff received evaluations after 4 months, 8 months

and 15 mon ths. At his 4-mon th and 8 -mon th evaluations, plaintiff rece ived the highest

possible score in each o f 31 catego r ies in which he was scored. At plaintiff’s 15 -mon th

evaluation in late November 2003, he received a sco re o f 7 .5 out of a possible 10 po ints.

Although this score was low er than those plaintiff received on his earlier evaluations,

p laintiff’s performance was deemed above average and satisfactory. The concerns noted on

p laintiff’s 15 -month evaluation included h is interactions w ith other staff members and

“excess wound problems.” The w r itten evaluations do not mention any of the patients

whose cases later became the subject of plaintiff’s professional review .

C . The Professional Review Subjects

1 . M . J.

In June 2003 , the Marshfield C linic’s risk management comm ittee received a letter

from the w ife of M . J., a man who had suffered permanent neurological deficits follow ing a

surgery p laintiff performed on him . A lthough the letter was prompted by the w ife ’s

dissatisfaction w ith another doctor who had treated he r husband, it launched an

investigation into p lain tiff’s role in the case. The investigation revealed that plaintiff had

no t reported a surgical complication to the clin ic’s risk management comm ittee, although

he did mention the complication to defendan t Ruggles in October or November 2003.

R isk management personnel identified four concerns relating to plaintiff’s treatment

of the patient: whether (1) the patient was an appropriate candidate for surgery ; (2)

plaintiff’s surgical plan was too extensive; (3) the complication was a result of poor surgical

technique; and (4) p laintiff was honest in his conversations w ith M . J. and h is w ife fo llow ing

surgery. Although the risk management comm ittee investigated the incident, plaintiff was

never provided w ith form al notice o f the investigation and the incident was not addressed

in his November 2003 personnel review .

2 . R . S .

On June 23, 2003 , plaintiff performed surgery on a 77 -year-old patient identified as

R . S. During the surgery , R . S . lost a significant amount of blood and was later re-

hospitalized.

3 . W . K .

On June 18, 2003 , plaintiff operated on a patient identified as W . K. During surgery,

W . K. lost a significant amount of blood. After the operation, plaintiff complained to the

chair of the Anesthesiology Department that one of the an esthesiologists assisting on the

surgery made m istakes that led to the patient’s excessive blood loss. Plaintiff asked to meet

w ith members of the Anesthesiology Department to discuss proper procedures for the types

of complex spine operations plaintiff performed. Although the department chair ind icated

that she and defendant Conterato wou ld meet w ith p laintiff to d iscuss the patient’s b lood

loss, plaintiff was not given an opportun ity to m eet w ith the department as a who le.

Some time in the fall of 2003, defendant Neal became aware of W . K.’s case. It was

his understanding that the chair of the Anesthesiology D epartment had investigated the

incident and determ ined that no action needed to be taken .

4 . T . S .

On December 2 , 2003 , plain tiff operated on a 41-year-o ld patien t iden tified as T . S .

During the surgery, p laintiff “advanced a tria l spacer” into the patient’s sp inal co lumn ,

rendering her quadrip leg ic for a short period of time and leaving her w ith permanent

impairmen ts. (The severity o f her residual disability is disputed.) The complication T . S .

experienced had not occurred before in any sim i lar surgery performed at the Marshfield

C linic.

5. Reserve funds

When the M arshfield Clinic believes a patient may make a legal claim against the

clinic, it creates a “reserve fund” for the patient’s case. The clinic established reserve funds

for M . J., R . S., W . K. and T . S.

1 . Suspension

Pro fessional Review

The day after T. S.’s surgery, defendant Liss spoke with defendan t N ea l about the

complication that had occurred. Defendant Neal expressed concern to defendant Liss that

plaintiff had improperly exposed T . S.’s spinal co rd , leaving it vulnerable to dam age.

Defendant Neal explained that he handled trial spacers differently from plaintiff. He w as

concerned that plaintiff used a technique that was dangerous to patients. Defendant Liss

met also with defendant Ruggles, the di recto r of the medical division that included the

neurosurgery department. Defendant L iss asked the clinic’s legal department to search its

risk management database and generate a report of other complications invo lving p laintiff’s

patients. The department generated a list of ten patients.

After meeting w ith defendants Neal and Ruggles and review ing the report generated

by the legal department, defendant L iss decided to in itiate a professional review action and

summarily suspend plaintiff’s surgical privileges while the professional review was pending.

On December 4, 2003 , defendants Liss and N eal met w ith plaintiff and informed him of the

decision to initiate a professional review and suspend his surgical priv ileges. Plaintiff was

given perm ission to follow up briefly w ith his post-surgical patients.

2. Pro fessional review comm ittee

The Marshfield C lin ic has a professional review action po licy. Under the term s of

the policy, the chief medical officer, division medical director, department chair and other

members of the m ed ical staff designated by the chief medical officer are required to

investigate cases that m erit professiona l review . The po licy requires the chief medical officer

to appoint “at least one or two individuals know ledgeable about the [subject doctor’s]

specialty but w ithout any supervisory relationship w ith the affected professional” to serve

on a pro fessional review comm ittee. Dkt. #140, Exh. 70 , at § 3.1 .2.

Under the term s of the po licy, a professional review comm ittee is charged w ith

“investigating the matter” that prompted the pro fessional review. The comm ittee has

discretion to “invite the affected individual to a m eeting to discuss the proposed professional

review .” Id . After concluding its investigation ,

[i]f the Professional Review Comm ittee decides that all or any portion of the
affected individual’s practice be restricted , suspended or term inated to a
summary suspension or restriction of privileges is extended, the C[hief]

M [edical] O[fficer] (or h is or her designee) shall so advise the affected
individual in w riting (Notice) . . . .

Id. at § 3 .1.5.

When a physician is the subject of an adverse professional review action, he has the

right to file an appeal to the clin ic ’s executive comm ittee. At the appellate level (and on ly

at that level), the physician is guaranteed the right to a hearing at which he has

the right to represen tation by an atto rney o r by another member o f the
medical staff of the phy sic ian’s choice; to a record (in the form to be
determ ined by the executive comm ittee) made of the proceedings . . .; to ca ll,
exam ine and cross-exam ine w itnesses; to present evidence determ ined to be
relevant by the hearing Chair . . . ; and to subm it a written statement at the
close of the hearing.

Id. at § 3 .2.4. How ever, under the terms of the po licy, the executive comm ittee is lim ited

to determ ining whether “the initiated Professional Review is arbitrary or without any factual

basis.” Id.

The comm ittee assigned to conduct p laintiff’s professional review included defendant

Liss (chief medical officer), defendant Ruggles (division m edical director), defendant Neal

(chair of the neuro surgery department), defendant G ribble (director of quality

improvement), defendant Sorenson (chair of the neuro logy department) and defendant

Kelman (a neurosurgeon).

a. December 8 , 2003 meeting

The professional review comm ittee met for the first time on December 8 , 2003 .

Defendant Neal was absent from the meeting because he was perform ing a brain surgery that

lasted longer than an ticipated. Defendants Ruggles, G ribble, Sorenson , Kelman and Liss

attended the meeting. Comm ittee members were told that their investigation would focus

on T . S .’s su rgery and the cases of W . K., R. S. and M . J. The comm ittee members were

asked to review the four cases in preparation fo r a D ecember 17 , 2003 meeting, at which

plaintiff wou ld be present to d iscuss the cases and answer questions.

On December 9 , 2003 , defendant L iss informed p laintiff of the December 17 meeting

and provided him w ith a list of the ten cases generated from the risk management database.

(The parties dispute whether L iss identified the four specific cases that wou ld be discussed

at the December 17 meeting.) Defendants did not provide p laintiff w ith cop ies of relevant

patients’ records. Nevertheless, plaintiff obtained som e computerized reco rds fo r these

patients before the meeting. Plaintiff did not request a different meeting date, ask to subm it

documents before the meeting or ob ject to the composition of the professiona l review

comm ittee.

b . December 17 , 2003 meeting

On December 17, 2003, a second professional review comm ittee meeting was held.

Defendant Ruggles did not attend because he was on vacation .

When plaintiff arrived for the meeting, defendant L iss spoke w ith him briefly and

explained that plaintiff would be asked questions regard ing specific cases and given an

opportunity to describe the care he had provided to h is patients. The meeting was scheduled

to begin at 5 :00 p.m ., but was delayed because defendants Kelman , Sorenson and G ribble

arrived 15-30 m inutes late.

When the comm ittee assembled, the members spoke briefly, then asked plaintiff to

join them. Plaintiff discussed the four cases and answered questions from seve ra l of the

doctors on the comm ittee. When defendant Kelman asked plaintiff whether he “felt he had

done anything w rong” w ith respect to the care of each of the four patients,” plaintiff

answered no . When defendant Kelman asked p laintiff whether he “wou ld do anyth ing

differently,” w ith respect to the care of each patient, plaintiff answered no w ith respect to

each patient except W . K . Plaintiff to ld the comm ittee that he took responsibility for W .

K .’s blood loss and the poor anesthesia set-up in that case.

While plaintiff w as speaking, defendant G ribble left the meeting early in order to

attend another hospital function. Defendan t G ribble heard plain tiff’s discussion o f the T .

S . case and the beginn ing of his discussion of the M . J. case, but did not hear plaintiff discuss

any of the remaining cases.

When plaintiff finished answering questions, he was asked to leave the room so the

comm ittee could deliberate. Although defendant Neal arrived at the meeting late and m issed

at least a portion of plaintiff’s testimony to the comm ittee, he participated in the

comm ittee’s vote. All four doctors who deliberated at the December 17 m eeting (defendants

Neal, Kelman , Sorenson and L iss) voted unan imously to term inate plaintiff’s employment.

The fo llow ing day, defendan t L iss called defendan t G ribble to ask him whether he had

form ed an op inion regard ing p laintiff. Defendant Gribble stated that he believed plaintiff’s

employment should be term inated.

Before decid ing to term inate p laintiff, defendants L iss, Neal, Kelman , Sorenson and

G ribble did not conduct a random review of plaintiff’s cases, consult relevant neurosurgical

literature or discuss the case w ith any independent experts. O f the members o f the

pro fessional review comm ittee, only defendants Neal and Kelman had any experience in

neurosurgery but Kelman was partially retired.

Defendants Kelman , Sorenson and L iss took notes at the meeting, but the meeting

was not transcribed.

c. Term ination

On December 18, 2003, defendant Liss dictated a memorandum summarizing the

meeting from the notes he had taken. In relevant part, the memo stated:

On W ednesday, December 17, 2003, D r. Schindler met w ith the Professional
Review Comm ittee . . . The purpo se of this meeting was to review specific
incidents of concern w ith Dr. Sch indler, and specifically obtain h is version of
the events leading to the adverse outcom es for four o f his patients.

The first case was T . S. . . . Dr. Schindler reported the event happened
because , a lthough he had two hands on the [trial] spacer, one inserting
pressure toward the spinal column and the other inserting counter pressure
away, someth ing popped and the spacer was inserted into the sp inal co lumn .
D r. Schindler’s belief is tha t the excessive laxity of the anterior cervical
ligament caused the disks at L6 -7 to move, which resu lted in the adverse

event. When questioned about the case, D r. Schindler did no t feel in
retrospect he would have done anything differently, except advise the
company to weld a washer on to the spacer to prevent this from occurring in
future surgeries. . . . Neither D r. Neal nor D r. Kelman felt that ligament laxity
was the reason for the m ishap.

The second case discussed was that of M . J. . . . Dr . Sch indler’s description of
what happened in this situation is that the anterio r cervical ligaments
retracted after the first surgery [he performed] causing a cord in jury requiring
[additional surgery] . . . D r. Sch indler demonstrated on x-ray the end resu lt
and hardware installed, and stated at a recent spine m eeting he was told this
case should be published. The Comm ittee felt that the indications for this
surgery in the first p lace were suspect, secondly, that the comp lication of
retraction of the anterior cervical ligaments after surgery had never occurred
at this institution before and the Comm ittee did not accept that as a likely
answer for the patient’s complications. The neurosurgeons remained skeptical
of the long-term effects this degree of hardware would have on this indiv idual.

The third case reviewed was R . S. . . . D r . Ke lm an questioned D r. Schindler
specifica lly about the w isdom of do ing this advanced surgery on a 77 year o ld
patient whom he would have managed more conservatively. D r. Sch indler felt
that his assessment of the case was that the patient had severe spinal stenosis
and that conservative management had already failed. He attributed the
pro found blood loss to the patient’s advanced age.

The last case that was d iscussed was W . K . . . . The patient had prob lem s in
the peri-operative and post-operative period which D r. Schindler suggested
was the fault of anesthesia who only had one peripheral IV line, which was
inadequate access. When asked specifically who was responsib le for mak ing
sure the patient had adequate in travenous access, D r. Schindler agreed that
the responsibility was his and that he wou ld not make the error again . . .

The Comm ittee deliberated for approxim ately one half-hour. Their
unan imous op in ion was that Dr . Sch indler was too aggressive in his decision
to take at least three of these patients to the OR , that his operative technique
w ith regard to surgical fu sions was suspect, and that his insight into his
deficiencies and contribution to these adverse outcom es w as m inimal if
existent. Therefore , based on th is Comm ittee’s evaluation , our current
contract w ith Dr. Schindler w ill be term inated w ith 60 days severance . . .

Dkt. #136, Exh. 90. Portions of the memo (not quoted above) describing patients’ surgical

complications contained statements that were medically inaccurate and made reference to

anatom ical structures that do not exist.

On the afternoon of December 18 , 2003 , defendan t L iss met w ith plaintiff and

informed him that his employment was being term inated immediately. Plaintiff was given

a term ination letter, which stated in relevant part:

Thank you for m eeting w ith the Pro fessional Review Comm ittee on December
17 , 2003 . After your presentation , the Members again d iscussed and reviewed
a number of patient charts, w ith the focus upon patient W . K, date of surgery
6/18/03; patient R . S., date of surgery 6/23/03; patient M . J., date of surgery
6 /19 /03 ; and patient T . S ., date of surgery 12 /2 /03 .

Th is letter w ill provide No tice that based upon the recommendation o f the
Professional Review Comm ittee . . . you are hereby notified that your
employment w ith the Marshfield C linic is hereby term inated.

Dkt. # 136, Exh. 100, at 1. Plaintiff was given no further explanation for the comm ittee’s

decision and was not provided w ith a copy of defendant L iss’s m emorandum .

3. Executive comm ittee

On January 7 , 2004, p laintiff wrote to the Marshfield C lin ic requesting a hear ing

before the executive comm ittee, wh ich defendant W esbrook chaired . On January 27 , 2004 ,

defendant W esbrook wrote to p laintiff and informed h im that a hearing wou ld be held on

March 2 , 2004 . The letter stated in part:

. . . [T]he Scope o f the Review w ill be whether the initiated Professional

Review is arbitrary o r w ithout any factual basis . . . . At the time of the
Hearing, you may present the testimony of two (2) physicians in addition to
whatever presentation/testimony you w ish to present individually. Sim ilarly,
the Clinic will be perm itted to call no more than three (3) physicians. At the
present time, w itnesses designated on behalf of the C lin ic are Dr . Pau l L iss ,
Chief Medical O fficer; D r. John Neal, Chair, Department o f Neurosurgery;
and D r . Rodney Sorenson , Chair, Department of Neuro logy. Either you o r
your attorney, but not both , w ill be perm itted to cross-exam ine any/a ll
w itnesses called on behalf of the C linic.

Dkt. #55 , Exh . 10 .

On February 10 , 2004 , the Marshfield C linic provided plaintiff w ith a copy o f his

personnel file and the m emorandum from defendant L iss summarizing the December 17 ,

2003 pro fessional review comm ittee meeting. Later, at plaintiff’s request, the clinic agreed

to let plaintiff call four doctors to testify on his behalf.

Before the March 2, 2004 meeting was held , defendant W esbrook asked defendant

L iss to provide the executive comm ittee w ith a w ritten summ ary o f the actions o f the

professional review comm ittee, along w ith the records on which the comm ittee had relied.

On February 18 , 2004 , defendant L iss sent a memorandum to the executive comm ittee

members describing his version of the events leading up to p laintiff’s term ination .

On M arch 2, 2004 , the executive comm ittee held a nine-hour hearing that was

attended by comm ittee members defendants W esbrook, M ayeux, Carlson, Simenstad, Boyle,

Cavanaugh, Degerman and Schaller. Defendant Reding was unable to attend. During the

hearing, p laintiff presented the testimony of Drs. M ichael Eberso ld , W i lliam Krauss and

David Piepgras, all neurosurgeons at the M ayo C linic. Each o f these w itnesses testified that

they had experienced surgical complications sim ilar to the one plain tiff experienced w ith T .

S . and M . J. and testified that such complications are no t uncommon . The clinic presented

the test imony of defendants Faciszewski, Sorenson and Neal. P laintiff subm itted 99

exh ib its, including med ical journal articles, letters of recommendation from neurosurgeons

throughout the country and patient care records. After the hearing concluded at 11 :00 p.m .,

the comm ittee deferred deliberation .

On March 9 , 2004 , the executive comm ittee reconvened to deliberate. After two

hours of discussion , the comm ittee voted 7-0 to upho ld the professional review comm ittee’s

decision. A lthough defendant Red ing attended the March 9 meeting, he did not vote

because he had no t been present at the March 2 hearing. (Defendant W esbrook did not

vote because, as president of the clinic, he did not vote unless other comm ittee members

tied.)

On March 22 , 2006 , defendant W esbrook issued the decision of the executive

comm ittee. The decision stated in part:

It was the unan imous opin ion of the P[rofessiona l] R [eview] A[ction]
C[omm ittee] members that Dr. Schindler is no t a safe surgeon . . . W ith
regard to the indications for surgery, the extent of surgery, and complications,
the expert w itnesses for D r. Sch indler supported his actions in general,
although not in every particu lar. They opined that among the neurosurgeons
and orthoped ic surgeons do ing th is type of work, there is a broad range from
very conservative to very aggressive, and that in this young specialty a national
consensus has not developed. Each o f them has had sim ilar complications,
including severe bleeding. All described themselves as mo re conservative than
D r. Schindler, and both Drs. Ebersold and Krauss stated they would have
done a less extensive procedure in the [T . S .] case . . . The overall thrust of

testimony from D r. Schindler’s experts was that D r. Schind ler was an
aggressive surgeon, but w ithin the bounds of acceptable practice, and that his
blood loss in the two cases was excessive, but also w ithin bounds o f reasonable
variation , and that h is comp lications were those that occur w ith th is type of
work .

* * * *

After receiving n ine hours of testimony, review ing hundreds of pages of
subm itted documents, and then d iscussing the matter for two hours in
executive session, the executive comm ittee unan imously uphe ld the
[professional review comm ittee] decision and rejected Dr. Schind ler’s
contention that the decision was arbitrary and/or w ithout basis in fact.

The executive comm ittee finds that these cases are replete with facts that
demand scrutiny. It further concluded that these facts, contested only in part
by Dr. Schindler’s w itnesses, were carefully and prudently considered by the
[professional review comm ittee], and that the [comm ittee’s] decision was
justified and reasonable . . .

The executive comm ittee acknow ledges that there is a range of acceptable
“aggressiveness” among surgeons, that there m ay be disagreement among
surgeons regarding indications and extent of surgery, and that even severe
complications can occur . The executive comm ittee also feels that
docum entation of clin ical findings, documentation of th inking, honest and
accurate record ing of comp lications, and w i llingness to adm it and learn from
m istakes are all necessary and fundamental to patient safety and should be
directly proportional to aggressiveness. This is no t the case here, and in fact
the opposite is true. D r. Schindler, by the most charitable estimate, is a very
aggressive surgeon. However, he deals with errors and complications by
denial, evasion , and b lam ing others, accepting no responsibility for him self.
H is documentation leaves much to be desired, in some cases om itting serious
events. Explanations and reasons offered, after the fact, on his behalf at the
hearing were often inconsistent w ith the explanations and reasons o ffered in
his documentation or in his testimony to the [professional review comm ittee].
All of these inconsistencies and aforem entioned behav iors, in conjunction w ith
the complications and outcomes of these cases, lead us to conclude that the
[comm ittee] decision was correct.

Dkt. # 136, Exh . 103, at 2, 4-5 .

4. Board of directors

On M arch 29, 2004, plaintiff requested the Marshfield C linic’s board of directors to

review the executive comm ittee’s decision . A rev iew hearing was scheduled for June 22 ,

2006 , and plaintiff was notified that he would be able to make a personal statement to the

board at the meeting. Before the meeting was held, board members were sent a copy of the

December 18, 2003 letter inform ing p laintiff of his term ination , a copy of defendant Liss’s

December 17 memorandum summarizing the professional review comm ittee’s decision and

the executive comm ittee’s March 22 , 2004 decision .

A quorum of board m embers attended the June 22 , 2004 meeting. Plaintiff’s lawyer

presented a statement on his behalf, although her presentation was lim ited to thirty m inutes.

Afterward , the board deliberated and voted . On ly one board member voted in favor of

reversing the executive comm ittee’s decision.

OPIN ION

As its nam e suggests, “the purpo se of the Health Care Quality Improvement Act

(HCQ IA) [i]s to improve the quality of med ical care by restricting the ab ility of physicians

who have been found to be incompetent to hide their malpractice by mov ing from state to

state w ithout discovery.” Gordon v. Lew istown Hosp ital, 423 F.3d 184, 201 (3d C ir. 2005)

(citing 42 U .S .C . § 11101). The Act estab lishes a national reporting system requiring

insurance companies to report medical malpractice payments, boards of medical exam iners

to report sanctions imposed against physicians and hospitals to report adverse professional

review information . Id.; 42 U .S.C . §§ 11131-33.

To insure tha t bo th hospitals and doctors w ill engage in meaningful professional

review , Congress provided immun ity from dam ages to persons who participate in

professional review activities by serving on review comm ittees or by provid ing information

to such comm ittees. Gordon , 423 F.3d at 201; 42 U .S.C . § 11111(a)(1)-(2). Under the Act,

participants in a peer review action are entitled to immun ity so long as they act:

(1) in the reasonab le belief that the action [i]s in the furtherance of quality
healthcare; (2) after a reasonab le 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
circum stances; 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 requ irement of [adequate notice and hearing procedures].

42 U .S.C . § 11112(a); Gordon , 423 F .3d at 202. The standard fo r determ in ing whether

immunity applies is one of ob jective reasonableness after looking at the “totality of the

circum stances.” S ingh v. B lue Cross/B lue Shield of Massachusetts, Inc., 308 F .3d 25, 32 (1st

Cir. 2002) (citing Imperial v. Suburban Hospital Ass’n, 37 F.3d 1026, 1030 (4th Cir.

1994)).

The Act creates a reable presumption in favor of immun ity, requiring the plaintiff

to prove that the defendan t did not comp ly w ith the standards set forth in § 11112(a).

Meyers v. Co lumb ia/HCA Healthcare Corp ., 341 F .3d 461 , 468 (6th C ir. 2003); see also 42

U .S.C. § 11112(a) (“A professional rev iew action shall be presumed to have met the

preceding standards necessary for the protection set out in section 11111(a) o f this title

un less the presumption is reed by a preponderance of the evidence .”). As appellate

courts have no ted, “[t]he statutory presumption included in section 11112(a) adds a rather

unconventiona l tw ist to the burden of proof” for deciding summ ary judgm ent decisions.

Lee v. Tr in ity Lutheran Hosp ital, 408 F.3d 1064 , 1070 (8th C ir. 2005); see also Gordon ,

423 F .3d at 202. When a defendant invokes HCQ IA immun ity, the question is whether “a

reasonable jury, viewing the facts in the best light for [plaintiff, m ight] conclude that he has

shown, by a preponderance of the evidence, that [defendants’] actions are outside the scope

of 1112(a)?” Lee, 408 F .3d at 1070 . If so, immun ity should not be granted.

Unlike form s of immun ity that guarantee immun ity from suit (such as qualified

immunity under § 1983), immunity under HCQ IA provides defendants w ith immunity from

damages on ly. Singh, 308 F .3d at 35 . The difference is not unimportant:

Qualified immun ity determ inations under § 1983 are questions o f law , subject
to resolution by the judge not the jury, while HCQ IA immun ity
determ inations may be resolved by a jury if they cannot be resolved at the
summary judgment stage. This distinction is appropriate because qua lified
immunity analysis under § 1983 invo lves a quintessential legal question :
whether the rights at issue are clearly established. There is no comparable
legal question invo lved in the immun ity analysis under the HCQ IA.

Id. at 34 -35 (internal citations om itted). Because a jury may be asked to decide the ultimate

issues of reasonableness set forth in the immun ity statute, there is “no reason why juries

shou ld be excluded entirely from immun ity determ inations under the HCQ IA” when

questions exist regarding the reasonableness of a peer review action. Id. at 35; but see Bryan

v. James E . Holmes Regional Medical Ctr., 33 F.3d 1318 , 1332 (11th C ir. 1994) (“HCQ IA

immun ity is a question of law for the court to decide and may be resolved whenever the

record in a particu lar case becomes sufficiently developed .”). Nevertheless, “if there are no

genuine disputes over material historical facts, and if the evidence o f reasonableness w ithin

the meaning of the HCQ IA is so one-sided that no reasonable jury could find that the

defendant health care entity failed to meet the HCQ IA standards, the entry o f summ ary

judgm ent does no violence to the plaintiff’s right to a jury trial.” S ingh, 308 F.3d at 36.

W ith those governing principles in m ind, I turn to the question whether defendants

are entitled to immun ity for their decision to summarily suspend plaintiff’s medical practice

and term inate his employment.

A. Reasonable Belief that the Action Furthered Quality Health Care

As described above, a plaintiff w ishing to defeat HCQ IA immunity must show that

a defendan t acted w ithout (1) a reasonab le belief that the action wou ld further quality

healthcare; (2) a reasonab le effort to obtain the relevant facts; (3) adequate notice and

hearing procedures; and (4) a reasonable belief that the action was warran ted . G enerally,

cou rts exam ine the first and fourth elements of immunity in comb ination . Id . at 38 n.13

(“[W ]e eva luate together standards (1) and (4) of HCQIA immunity. As their wording

suggests, they are closely related.”).

In this case, plaintiff contends that defendants took two adverse actions against him :

h is summary suspension on December 4 , 2003 and h is term ination on December 17 , 2003 .

Plaintiff contends that defendants suspended and fired him out o f jealousy for his high

surgical “production rate” and in retaliation for h is w illingness to criticize other staff

m embers when he believed their behavio r was unpro fessional. Acco rding to plain tiff, the

adverse actions taken against him were unjustified and did no thing to further patient health

and safety.

A p laintiff w ishing to show that a defendant’s actions w ere not taken in furtherance

of quality health care faces a heavy burden. The plaintiff must do more than show that the

action was undertaken out of personal animosity toward him or that the action taken was

flat out w rong. The Act does not requ ire a professional review to result in the actual

improvement in the quality of health care , but only that the review be undertaken in the

“reasonab le belief” that quality health care is being furthered . Imperial, 37 F .3d at 1030 .

Moreover, “quality health care” is not lim ited to clinical competence, but includes matters

of genera l behavior and ethical conduct.” Meyers, 341 F .3d at 469.

The test for determ ining whether an action furthers quality health care is ob jective;

therefore, the court does no t consider the bad faith of the actual members o f a litigant’s

professional review comm ittee. See, e.g., Id . at 468 (HCQ IA ’s reasonab le belief standard for

immun ity “is an objective standard, rather than a sub ject ive good faith requirement.”);

Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992) (“The test [for immunity] is an

objective one, so bad faith is immaterial.”). Therefore, to the extent that plaintiff contends

that defendan ts acted in bad faith , whether out of jealousy for h is productivity or out of

retaliation for h is alleged “wh istleb low ing,” h is arguments are unavailing. The real question

is whether an impartial reviewer w ith access to the information available to decisionmakers

a t the time o f the pro fessional review action would “reasonably have concluded that [the

peer review ] actions wou ld restrict incompetent behavior or wou ld protect patients.” Lee,

408 F .3d at 1073 ; see also H . R . Rep. No. 903 , 99th Cong., 2d Sess. 10 (1986).

1 . Summary suspension

HCQ IA ’s emergency provision , 42 U .S .C . § 11112(c), lays out the standard for

suspending a physician’s clinical privileges. In its entirety, § 11112(c) states:

For purposes of section 11111(a) of this title, nothing in this section shall be
construed as–
(1) requiring the procedures referred to in subsection (a)(3) of this section–
(A) where there is no adverse professional review action taken , or
(B) in the case of a suspension or restriction of clin ical privileges, for
a per iod of not longer than 14 days, during which an investigation is
being conducted to determ ine the need for a professional review action ;
or
(2) precluding an immediate suspen sion or restriction of clinical privileges,
subject to subsequent notice and hearing or other adequate procedures, where
the failure to take such an action may result in an imm inen t danger to the
health of any indiv idual.

Section 11112(c)(1 )(B ) perm its a physician to be suspended for 14 days or less while an

investigation is conducted ; defendants acting pursuan t to th is emergency investigation

provision are not required to provide any procedural protections to the suspended physician

before or during this time.

Although it is undisputed that plaintiff’s summary suspension lasted for on ly 13 days,

plaintiff contends that defendants are not entitled to immunity with regard to his summary

suspension because no patients were in “imm inent danger” from his continued m edical

practice. There are two problem s w ith plaintiff’s argument. First, because noth ing in §

11112(c)(1)(B) requires that a patient be in imm inent danger before a physician is

suspended temporarily, it is not clear that § 11112(c)(2) applies to suspensions of less than

14 days’ duration. Second, even if § 11112(c)(2) do es app ly, defendants satisfied the

standard.

On December 3 , 2003 , wh ile p laintiff was perform ing surgery, a surgical instrument

slipped and plaintiff’s patient was rendered quadrip legic for an unspecified period of time.

Although plaintiff w ishes to characterize the incident as a regrettable but isolated surgical

complication unrelated to the health and safety of o ther patients, it was reasonable for the

hospital to investigate the complication before perm itting p laintiff to perform further

surgeries.

Desp ite p laintiff’s assertions to the contrary, noth ing in the Act requires imm inent

danger to exist before a summary restraint is imposed. Lee, 408 F .3d at 1072 . It requires

only that the danger may result if the restraint is not imposed. Fobbs v. Holy Cross Health

Systems Corp ., 29 F.3d 1439, 1443 (9th C ir. 1994 ). G iven the inform ation available to

defendant Liss at the time he decided to summarily suspend plaintiff, he had adequate

reason to believe, rightly or w rongly, that plaintiff’s continued surgical practice could pose

an immediate threat to patient safety. G iven that reality, defendant Liss was perm itted to

suspend plaintiff’s practice for a short period o f time w ithout prior procedure, and is entitled

to immun ity for h is decision to do so.

2 . Term ination

W ith respect to plaintiff’s term ination, the analysis is much the same. So long as an

ob jective participant in either the professional review comm ittee or the executive comm ittee

wou ld “reasonab ly have concluded that [the peer review] actions wou ld restrict incompetent

behav ior or wou ld protect patients,” Lee, 408 F .3d at 1073 , defendants have acted “in

furtherance of quality health care” w ithin the meaning of § 11112(a)(1) and (a)(4). Plaintiff

does not dispute that T . S . and M . J. experienced serious neuro logical comp lications from

their su rger ies o r that R. S . and W . K. lost excessive amounts of blood. Rather, plaintiff

contends that the complications each of these patients experienced were known risks of the

surgeries they underwent, and that his complication rate was reasonable given the riskiness

of the procedures themselves. Assum ing plaintiff is correct, the fact tha t the risks were

known does not underm ine the fact that defendants had ob jective concerns regard ing patient

safety. To the degree that plaintiff challenges the facts upon wh ich defendants relied, his

comp laint is w ith defendants’ fact-finding under § 11112(a)(3), no t w ith the question

whether their actions could be thought to objectively advance quality health care as required

under §§ 11112(a)(1), (4).

Defendants’ peer review investigation focused on serious surgical comp lications

experienced by four patients w ithin a span of s ix mon th s. From an objective viewpo int,

defendants acted in the reasonable belief that their decision to su spend and term inate

plain tiff was warranted in order to further quality healthcare for patients of the Marshfield

C linic.

B . Reasonab le Fact Gathering

The second requirement for HCQ IA immunity is that defendants must have made

a reasonable effort to obtain facts relevant to their decision. 42 U .S.C. § 11112(a)(2). The

question is “whether the totality of the process leading up to the . . . professional review

action . . . [demonstrates] a reasonable effort to obtain the facts of the matter.” Sugarbaker

v. SSM H ea lth Care, 190 F.3d 905, 914 (8th Cir. 1999); Brader v. Allegheny General

Hosp ital, 167 F .3d 832 , 841 (3d C ir. 1999).

1 . Suspension

To the degree plain tiff challenges defendant L iss’s failure to undertake a fu ll

investigation of the facts of his case before suspend ing him , his arguments are unavailing.

It is und isputed that defendant L iss spoke w ith p la in ti ff after one o f plaintiff’s patients

experienced a serious comp lication that rendered her temporarily quadrip legic. Defendant

Liss spoke w ith other senior physicians, including defendant Neal, and asked the clinic’s legal

department to generate a list of cases involving plaintiff in which complaints had been filed.

That search yielded ten cases, including the four that later became the subject o f the

pro fessional review . Under the circum stances, L iss’s investigation was adequate to just ify

his belief that a short-term suspension was appropriate in the interest of protecting patients

and providing time for “an investigation . . . to determ ine the need for a pro fessional review

action.” 42 U .S.C. §§ 11112(c)(1)(B), (c)(2). No more was required.

2 . Term ination

a. Professional review comm ittee

Plaintiff’s cha llenge to the adequacy of the pro fessional review comm ittee’s fact-

finding process focuses not on what the comm ittee did, but on what it did not do . Plaintiff

objects to the comm ittee’s failure to perform a random samp ling of h is cases, review relevant

medical literature or consult an outside expert before determ in in g that he was an unsafe

surgeon . In support o f h is position , plaintiff points to the testimony of D r. Law rence

Huntoon, an expert who asserts that plaintiff was the subject of sham review proceedings.

Unfortunately for plaintiff, Dr. Huntoon’s report does nothing to support plaintiff’s

con tentions. In his expert report, Huntoon adm its that the law does not require the k ind

of investigation plain tiff wanted. Huntoon laments that HCQ IA “provides a sh ie ld of nearly

abso lute immun ity for peer reviewers who m ake trumped up , false or unsubstantiated

charges against a physician under the gu ise of ‘peer review . ’” Dkt. #140 , Exh . 174, at 4 .

How ever, he does not state that defendants failed to do what the law required of them .

Although professional review comm ittees are required to engage in adequate factual

investigation , they are not required to do so in any particu lar manner. The question is

whether the comm ittee’s factual investigation was reasonable under the circum stances.

It is undisputed that the professional review comm ittee members reviewed the records

of the four patients whose complications formed the basis for the decision to term inate

plaintiff’s employment. During the December 17 , 2003 meeting, plaintiff was perm itted to

explain each case and answer questions posed to him by the comm ittee. At no time did he

ask to subm it additional information or request more time in which to prepare his response

to the comm ittee’s inquiry. These facts all counsel in favor of finding that the comm ittee’s

investigation was satisfactory under the circum stances.

Nevertheless, on a motion for summary judgm ent, the court must consider the facts

in the light most favorable to the non-moving party. It is undisputed that the professional

review comm ittee convened a m ere two weeks after plaintiff’s suspension and only eight days

after providing plaintiff w ith a copy of the list of ten patients generated by the legal

department, leaving little time for factual investigation . The parties dispute whether plaintiff

had access to all relevant medical records of the patients whose complications he was

required to explain (three of whom had been operated on more than six months before the

meeting date). Although defendants G ribble and Neal were absent for a portion o f plaintiff’s

testimony in his defense, each voted to term inate plaintiff’s employment. Moreover, as

discussed above, the professional review comm ittee members did not review relevant medical

literature, did not consult outside experts and did not perform any random samp ling o f

plaintiff’s cases before vo ting to term ina te his employment. Although none of these

om issions is dispositive on the question whether defendants L iss, Neal, G ribble, Sorenson ,

Ke lm an and Ruggles are entitled to immunity for their decision to term inate p laintiff’s

emp loyment, their failure to gather potentially important data is relevant to determ in ing

whether the comm ittee members made “a reasonable effort to obtain the facts of the matter”

before taking adverse action against plaintiff. Sugarbaker, 190 F .3d at 914. Because facts

and the inferences to be drawn from those facts rem ain disputed w ith respect to the

reasonableness of the professional review comm ittee’s fact-gathering, I cannot find as a

matter of law that defendants Liss, Neal, Gribble, Sorenson , Kelman and Ruggles are entitled

to immun ity. Therefore, defendants’ motion for summary judgm en t w ill be den ied w ith

respect to these defendants in connection w ith their decision to term inate plaintiff’s

employment.

b. Executive comm ittee

Un like the pro fessional review comm ittee, which was convened quickly and had

access to relatively sparse information regarding the patients and surgical procedures that

were the subject of the comm ittee’s review , the executive comm ittee had access to a plethora

of information. At the March 2, 2004 comm ittee hearing, plaintiff was represented by

counsel. He presented the testimony of three expert w itnesses, testified him self, cross-

exam ined the clinic’s experts and subm itted 99 exhibits. The hearing lasted nine hours. The

comm ittee con sidered all the evidence, deliberated for two hours and issued a lengthy

w ritten opin ion .

Although plaintiff alleges that the comm ittee lim ited the duration of his testimony,

he acknow ledges that he was perm itted to subm it extensive evidence in h is defense. G iven

these facts, there can be no question that members of the executive comm ittee made

reasonable efforts to obtain the facts relevant to their decision . Plaintiff has not po inted to

any facts not presented to the comm ittee that he did not have the ability to prov ide.

Although plaintiff disagrees w ith the conclusion the comm ittee reached after exam ining the

facts of each h is case, there can be no question that they had access to all information

relevant to their decision. Consequently, defendan ts Conterato, Faciszew ski, W esbrook,

Mayeux, Carlson , Simenstad, Boyle, Cavanaugh, Degerman , Reding and Schaller conducted

adequate fact gathering as required under § 11112(a)(2).

C . Adequate Notice and H earing Procedures

As d iscussed above, p laintiff was not entitled to procedural protections in connection

w ith his 14-day suspension . Therefore, the focus of inquiry under § 11112(a)(3) is whether

adequate no tice and procedures were provided to plain tiff in connection w ith the

pro fessional review comm ittee’s decision to term inate plaintiff’s employment.

Section 11112(b) contains a “safe harbor” provis ion , setting forth exemplary

procedures that insure immun ity for defendants who employ them . So long as defendants

follow the notice and hearing procedures set forth in the provision, they are “deemed to have

met the adequate notice and hearing requirement of subsection (a)(3)[’s adequate hearing

and notice requirements].” § 11112(b). To be entitled to immunity under the safe harbor

provisions, a health care entity must provide the physician w ith a notice explaining why a

professional review action is being commenced against h im , provide h im w ith 30 days or

more to request a hearing, and provide him w ith a summary of the rights he would have at

a hearing. § 11112(b)(1). Furthermore, if a hearing is requested, the entity must provide

the physician w ith notice of the hearing date at least 30 days in advance, along w ith a list

of witnesses who w ill testify on behalf of the professional review body. § 11112(b)(2). The

hearing itself must be conducted before an arb itrator or a hearing officer or panel, no

members of which are in direct econom ic competition w ith the physician; the physician must

be perm itted to obtain counsel, cross-exam ine w itnesses, subm it a wr itten statement and

present relevant evidence; and a record must be made of the proceed ings. § 11112(b)(3)(A –

C). Fina lly, after a decision has been m ade, the physician has the right to receive a w ritten

decision exp laining the grounds for the professional review panel’s act ion.

11112(b)(3)(D).

The professional review comm ittee’s decision to term inate plaintiff in December 2003

does not fall w ithin the safe harbo r provisions for several reasons. First, the comm ittee did

no t provide plaintiff w ith notice of his right to a hearing or an explanation of the specific

content of the comm ittee’s inquiry. (Apparently, p laintiff was not notified of h is right to a

hearing because the clin ic ’s po licy does not guarantee him such a right until after an initial

dec is ion has been rendered by the comm ittee). The comm ittee met a mere thirteen days

after plaintiff’s suspension and only eight days after plaintiff was notified o f the meeting date

and of the ten cases that had been generated from the legal department’s risk management

database . A t the December 17, 2003 comm ittee meeting, although plaintiff was given an

opportunity to speak, he was no t perm itted to introduce evidence, call w itnesses or subm it

a w ritten statement. Fina lly, after the comm ittee voted to term inate plaintiff’s employment,

he was given a letter o f term ination , but was not prov ided w ith a thorough w ritten

exp lanation of the grounds for h is term ination .

Defendants argue that the court shou ld view the professional review comm ittee’s

decision and the executive comm ittee’s review of that decision as a seam less process that falls

w ithin the ambit of § 11112(b). In the alternative, defendants assert that the process they

afforded p laintiff met the sp irit of § 11112(a)(3), if not the letter, of § 11112(b). I am not

convinced, for one key reason .

The heart of the notice requirement contained in § 11112(a)(3) is the opportunity

for “adequate notice and hearing.” Although the Marshfield C linic’s Professional Review

Po licy provides all of the safeguards recommended in the safe harbor provision , it provides

them too late to be of much use to the affected physician. Under the policy, the professional

review comm ittee is authorized to take adverse action against a physician w ithout a prior

hearing (and even , if the comm ittee so chooses, w ithout perm itting the physician to explain

him self beforehand). It is only after an adverse decision has been rendered that the physician

may request a hearing before the executive comm ittee at which he may subm it evidence in

his defense.

But what good can a hearing do? Under the term s of the policy, the executive

comm ittee is bound to uphold the professional review comm ittee’s decision unless “the

in itiated Professional Review is arb itrary or w ithout any factual basis.” Dkt. #140 , Exh . 70 ,

§ 3 .2 .4 . Such a standard is nearly insurmountab le, and eviscerates the force of almost any

evidence the physician may be ab le to produce at his hearing.

That is not to say that, as a matter of law , the pro fessional review comm ittee’s process

was inadequate. “[A] pro fessional review body’s failure to meet the conditions described in

. . . [the safe harbor provisions] shall not, in itself, constitute failure to meet the standards

of subsection (a)(3) of this section.” § 11112 (b)(3)(D ). In other words, although the

procedural protections set forth in § 11112(b)(3) are those env isioned by Congress as “best

practices” for peer review, failure to provide those specific procedures is no t fatal to an

immun ity defense. Again , the issue is the reasonableness o f the procedures afforded to

p laintiff before h is term ination . W ere they fair? W ere they adequate? These are questions

not amenab le to reso lution on summary judgment. Therefore, to the extent that p la int iff

challenges the adequacy of the notice and p ro cess given to him in connection w ith the

professional review comm ittee’s decision to term inate h is emp loyment on December 17 ,

2003 , I find again that material facts and the inferences to be drawn from them preclude

summary judgment in favor of defendants L iss, Neal, G ribble, Sorenson , Kelman and

Ruggles.

Once again, however, a distinction must be drawn between the defendant members

o f the pro fessional review comm ittee and the defendan t members o f the execu tive

comm ittee. Un like members of the professional review comm ittee, defendants Conterato ,

Faciszewski, W esbrook, Mayeux, Carlson , Simenstad, Boyle, Cavanaugh , Degerman , Reding

and Schaller provided plaintiff w ith more than one month’s notice of his hearing before the

executive comm ittee, the opportun ity to present evidence, call w itnesses, cross-exam ine

w itnesses and subm it written statements.

Although p laintiff has identified a host of alleged procedural violations w ith respect

to the executive comm ittee, none of the alleged flaws makes the immunity provision of

HCQ IA inapplicab le. P laintiff makes much of the fact that the executive comm ittee hearing

was not transcribed by an impartial court reporter but he cites no authority for h is assertion

that HCQ IA requires a transcript to be made. A lthough the Act provides that “a reco rd [w ill

be] made of the [disciplinary] proceedings, copies of which may be obtained by the physician

upon payment of any reasonab le charges associated w ith the preparation thereof,” noth ing

in the statute dictates the form the record must take or the qualifications of the person who

must make the record. Although the opinion issued in his case was not as detailed as

plaintiff may like, it creates an adequate summary of the proceeding as requ ired by the Act.

Plain tiff’s remain ing challenges to the executive comm ittee’s deliberations are equally

meritless.

The executive comm ittee provided plaintiff w ith adequate notice and procedure in

connection w ith its review of the pro fessional review comm ittee’s decision, as requ ired under

HCQ IA . Because the comm ittee also made reasonab le efforts to obtain relevant facts and

acted in the objectively reasonable belief that its action w as warranted to further quality

healthcare, defendants’ motion for summary judgment w ill be granted w ith respect to the

decision of defendants Conterato, Faciszew ski, W esbrook, Mayeux, Carlson, Simenstad,

Boyle, Cavanaugh, Degerman , Reding and Schaller to uphold the profess iona l review

comm ittee’s decision to term inate plaintiff’s employment w ith the Marshfield C linic.

ORDER

IT IS ORDERED that the motion for summary judgment o f defendants Marshfield

C lin ic, Paul L iss, Robert G ribble, Donald Kelman , John Neal, Rodney Soren son , Tom

Faciszew ski, Kevin Ruggles, James Conterato, Frederic W esbrook, Gary Maxeux, Robert

Carlson, David Simenstad, Timothy Boyle, Daniel Cavanaugh, Gary Degerman, Douglas

Reding and Ivan Schaller is

1. DEN IED w ith respect to the actions taken by defendants Paul Liss, Robert

G ribble, Dona ld Kelman , John Neal and Rodney Sorenson in connection w ith their decision

to term inate plaintiff’s employment follow ing the December 17, 2003 professional review

comm ittee meeting;

2 . GRANTED w ith respect to the actions taken by defendants Pau l Conterato , Tom

Faciszew ski, Frederic W esbrook, Gary Mayeux, Robert Carlson, David Simenstad, Timothy

Boyle, Dan iel Cavanaugh , Gary Degerman , Douglas Reding and Ivan Schaller in connection

w ith their decision to uphold the professional review comm ittee’s decision to term inate

plaintiff’s employment.

FURTHER , IT IS ORDERED that

3. Counts I, II and V of plaintiff’s complaint are DISM ISSED w ith respect to

defendants Conterato, Faciszew ski, W esbrook , Mayeux, Carlson , Sim enstad, Boyle,

Cavanaugh , Degerman , Reding and Schaller; and

4 . To the extent that the cla im s relate to plain tiff’s term ination from the Marshfield

C linic, counts VI, VII, IX , X and XI of plaintiff’s complaint are DISM ISSED w ith respect

to defendants Con terato, Faciszewski W esbrook , Mayeux, Carlson , Sim enstad, Boyle,

Cavanaugh, Degerman , Reding and Schaller.

Entered th is 12th day of October, 2006 .

BY THE COURT :
/s/
BARBARA B . CRABB
D istrict Judge