Sternberg v. Nanticoke Mem’l Hosp (Full Text)
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR SUSSEX COUNTY
RICHARD J. STERNBERG, M.D.,
Plaintiff,
v.
NANTICOKE MEMORIAL
HOSPITAL, INC., et. al,
Defendants.
C.A. No. 07C-10-011(THG)
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MEMORANDUM OPINION
Submitted: July 31, 2009
Decided: September 18, 2009
Defendants’ Motion for Summary Judgment. GRANTED.
Plaintiff’s Motion for Summary Judgment
on Attorney’s Fees. DENIED.
Matthew M. Carucci, Esquire, Carucci Butler, LLC, Wilmington, Delaware; and Christopher A.
Iacono, Esquire, and Kevin E. Raphael, Esquire, Pietragallo Gordon Alfano Bosick & Raspanti,
LLP, Philadelphia, Pennsylvania, Attorneys for Plaintiff.
David R. Hackett, Esquire, Griffin & Hackett, P.A., Georgetown, Delaware, Attorney for
Defendants.
GRAVES, J.
PROCEDURAL AND FACTUAL BACKGROUND
Nanticoke Memorial Hospital (hereinafter “Nanticoke”) is a non-profit, tax exempt
hospital facility in Seaford, Delaware that offers primary acute care services. Nanticoke’s
Medical Staff consists of all those physicians, dentists, and podiatrists who have been given the
right to exercise clinical privileges within the hospital. The Medical Staff is responsible for the
quality of health care provided at Nanticoke, and its By-laws govern the organization, operation,
and discipline of those who practice in the facility. All appointees to the Medical Staff exercise
their right to practice at the hospital subject to the rules and regulations contained in the By-laws.
Nanticoke’s Medical Executive Committee (hereinafter “MEC”) is charged with
overseeing the Medical Staff. The MEC is comprised of the officers of the Medical Staff,
department chairpersons, and the Intensive Care Unit Director. The President of the Medical
Staff chairs the MEC, and Nanticoke’s CEO is designated as an ex officio member of the group
without voting privileges. The MEC is chiefly responsible for administering Nanticoke’s
Credentials Policy. 1
Dr. Richard Sternberg (hereinafter “Sternberg”) is a board certified orthopedic surgeon
who was a member of Nanticoke’s Medical Staff from 1999 until 2008. By all accounts,
Sternberg is a competent physician. While Sternberg’s medical competency is not disputed here,
his professional behavior is at the center of the litigation before the Court. Nanticoke claims to
have documented thirty-one incidents of inappropriate and disruptive behavior exhibited by
Sternberg throughout his tenure at the hospital. It appears from the record presented that these
episodes range from emotional outbursts of anger to demeaning and offensive reprimands of
1 For purposes of this decision, the terms “By-laws” and “Credentials Policy” are used interchangeably. The Court
thus recognizes that the “Medical Staff By-laws” includes the “Credentials Policy” at issue here.
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staff and patients alike. At least one Orthopedic Specialty Nurse, according to Nanticoke,
resigned due to the stress and anxiety caused by Sternberg. Taken altogether, Nanticoke portrays
Sternberg as a troublesome figure at the hospital, whose behavior made the tense operating room
environment even more stressful for his colleagues — and potentially dangerous to his patients.
Sternberg, quite naturally, contends that he was not a disruptive presence at Nanticoke.
To the contrary, while admitting his irritability at times, Sternberg fashions himself as a zealous
reformer whose attempts to improve the quality of care of Nanticoke drew the ire of hospital
administrators. Because of his desire to correct the flaws at Nanticoke, Sternberg argues that his
conduct became excessively scrutinized by hospital officials who did not appreciate his concern
for patient care.
However he is described, it is clear that Sternberg was a well known figure to hospital
officials. Nanticoke claims that it dealt with those concerns about Sternberg during his initial
years at the hospital by informally warning him about his conduct. As far back as 2004, though,
Nanticoke’s Chief Executive Officer, Daniel J. Werner (hereinafter “Werner”), appears to have
contacted Dr. Carol A. Tavini (hereinafter “Tavini”), Chair of the Delaware Physician’s Health
Committee, to discuss the possibility of Sternberg being an “impaired physician” or, more
accurately, a “disruptive physician.”
Thereafter, in January of 2006, Sternberg was referred to the State Physician’s Health
Committee and Tavini for treatment in managing his behavior. Sternberg asserts that the stress
and subsequent breakdown from covering consecutive days of orthopedic call led to the Tavini
examination. By letter dated March 17, 2006, the State Physician’s Health Committee
recommended that Sternberg seek an “excuse from on-call” duty and attend a course on
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“physician communication and dealing with others.” Sternberg did not attend a course on his
workplace behavior at this time.
However, Sternberg agreed to be relieved from on-call responsibility. Sternberg claims
that this psychiatric order relieving him from being on-call was detrimental to Nanticoke as it
meant one less surgeon for on-call duty, thereby risking Nanticoke’s trauma designation.
Sternberg further takes the position that the psychiatric order failed to provide hospital officials
with the means by which they could “exert control” over him. Despite being excused from on-
call duty, Nanticoke claims that his behavior did not improve. In May of 2006, Werner allegedly
contacted legal counsel for advice on how to respond to Sternberg’s continued outbursts. Legal
counsel responded with a memorandum outlining recommended steps for dealing with Sternberg,
which Werner relayed to the MEC. All the while, Sternberg claims that Nanticoke was looking
for a scenario that would force him into accepting on-call responsibility.
Sternberg’s alleged actions during a surgical procedure on July 13, 2006, serve as a key
moment in his time at Nanticoke. During the operation, it was discovered that surgical
equipment was missing. In order to correct the error, a new instrument tray was ordered.
According to Nanticoke, the decision to order a new surgical tray enraged Sternberg. With
surgical drill in hand, and while the patient remained under sedation, Sternberg allegedly angrily
expressed his frustration to his colleagues. Nanticoke avers that at least one operating room staff
member was privately concerned that Sternberg’s actions would shatter the patient’s tibia.
Nanticoke also maintains that Sternberg’s alleged outburst threatened patient safety as a result of
an open incision that was left unattended to during the lull in surgery. Sternberg disputes this
characterization of the incident and argues that he followed hospital protocol, was of no risk to
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the patient, and held the drill in a non-threatening way. Ultimately, Sternberg successfully
completed the operation.
Not surprisingly, Sternberg’s alleged actions during the surgery made the rounds at the
hospital. Two co-defendants in this action, Dr. Thomas Benz, Chair of Nanticoke’s Surgery
Department, and Dr. John Appiott, President of Nanticoke’s Medical Staff, authored a letter to
Sternberg on July 17, 2006, informing him that his “continuing pattern of unacceptable
behavior” was to be referred to the MEC at an upcoming meeting and that any further incident of
inappropriate behavior would be met with an immediate suspension.
At the meeting called to discuss Sternberg on July 25, 2006, MEC members unanimously
voted to recommend that Sternberg’s Medical Staff membership and privileges be revoked.
Simultaneously, the MEC voted to offer Sternberg a leave of absence option in lieu of the
revocation of his privileges at the hospital. The leave of absence option was conveyed to
Sternberg in a letter authored by Werner on July 26, 2006. The letter states, in part:
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This is to inform you that the Executive Committee is prepared to recommend to
the Board (subject to the option for you to take a Leave of Absence set forth
below) that your medical staff appointment and clinical privileges be revoked,
based on the continuing pattern of disruptive behavior that you have exhibited
despite numerous attempts to impress upon you the need to improve that behavior
pattern. Your behavior has created a work environment that numerous employees
consider to be hostile and counterproductive to the provision of good patient care.
Some of the incidents of your behavior have placed patients at risk. You have not
responded to any of the past efforts to work with you in the hope that you would
gain insight into the inappropriateness of your pattern of behavior and take steps
necessary to improve it… . You were advised, by letter dated July 17, that if
there is any further incident of inappropriate behavior on your part, including, but
not limited to, displays of anger, loud tone of voice, or disruption of any kind, you
will be immediately suspended. This caution remains in effect. 2
Again advising Sternberg that any further inappropriate incident would result in
an immediate suspension, Werner’s offer for a leave of absence required Sternberg to
submit a plan to the Executive Committee to address how he would resolve his anger
management issues. In addition, Werner wrote “because it is a hardship on other surgeons
to take additional call, your plan must address your ability to take a reasonable share of
emergency call.” 3 Sternberg suggests that Werner’s letter was tantamount to an
ultimatum requiring him to take emergency call in violation of a psychiatric order.
By way of response, Sternberg wrote Werner on August 18, 2006, to request both
a hearing on the recommendation of his revocation and a sixty-day stay so that he could
obtain legal counsel. Werner granted both of these requests in a subsequent
correspondence with Sternberg, repeated the conditional leave of absence offer, and
reiterated that another inappropriate behavioral issue would result in an immediate
suspension. Despite these warnings of immediate suspension, Nanticoke claims that it
2Letter from Daniel Werner, CEO, Nanticoke Memorial Hospital, to Richard Sternberg, Physician,
Nanticoke Memorial Hospital (July 26, 2006).
3 Id.
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received three complaints regarding Sternberg’s behavior in the aftermath of the MEC’s
decision to recommend that his privileges be revoked. Apparently, Nanticoke did not
conclude that these alleged incidents warranted formal action or review.
In October of 2006, Nanticoke had retained a hearing officer, prepared exhibits, and
was anticipating holding a hearing on the Sternberg matter in the first week of November.
According to Sternberg, the hospital had obtained the services of another orthopedic
surgeon – thus making him expendable. By then, Sternberg had also become a candidate
for the Thirty-Ninth Representative District in the 2006 election. Concerned, in part, by
the hospital’s tax-exempt status, Nanticoke advised Sternberg that political campaigning
was forbidden within the facility. Sternberg may have disagreed with Nanticoke’s policy,
but he was fully aware of the prohibition against political activity on hospital grounds.
The background is thus set for what appears to be the pivotal incident in the long
history of tension between Nanticoke and Sternberg. On October 13, 2006, Sternberg
invited a newspaper reporter to observe an operation scheduled for that morning.
Sternberg argues that he followed hospital procedure by filling out the appropriate visitor
attendance forms indicating that the observation was for educational purposes. Sternberg
contends that the hospital was given several days notice regarding the observation yet
failed to question him regarding the specifics. Sternberg also alleges that the patient was
made aware prior to giving consent that the visitor was a newspaper reporter. However,
the hospital did not know that the visitor was a reporter covering Sternberg’s political
campaign before the incident. According to the hospital, it was natural and reasonable to
have assumed or inferred that the individual was a nursing or medical student, rather than
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a newspaper reporter, when Sternberg filled out the forms indicating that the observation
was related to educational purposes.
On the morning of October 13, 2006, according to Nanticoke, the hospital’s
Interim Director for Patient Services, Mary Beth Waide (hereinafter “Waide”), reported
to Werner that one of Sternberg’s cases was underway when an observer, believed by
hospital officials to have been a student, pulled out a note pad and began taking notes.
When an operating room nurse questioned the observer, she responded, “I am taking
notes for my story.” Pressed further, the observer admitted that she was a newspaper
reporter covering Sternberg’s political campaign. Upon being notified of the reporter’s
presence in the operating room, Nanticoke suggests that hospital administrator Tom
Brown entered the operating room and escorted her out of the facility.
Thereafter, Nanticoke claims that Werner instructed Waide to evaluate the
situation with the newspaper reporter and report back to him. Sternberg vigorously
asserts that Werner failed to conduct any investigation into the incident with the reporter.
In any event, Werner had sufficient information to write a letter to Sternberg later that
afternoon.
Werner’s letter, dated October 13, 2006, advised Sternberg that Nanticoke was
immediately suspending him pursuant to the precautionary suspension provisions
contained in Section 6.C.1. of its Credentials Policy. The letter further explained:
Your behavior this morning has disrupted the entire morning of the Operating
Room, and the ability of employees to concentrate on providing appropriate
patient care. You breached confidentiality, raising serious issues…. The patient
apparently consented to having an individual observe for educational purposes,
which was also how you described the reporter prior to bringing her into the
Operating Room. This was a misrepresentation…. There were infection risks
created at several points in the process. Your behavior has left me no choice but
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to protect patients from your disruptive conduct by removing you from the
hospital immediately. You have exceeded any boundaries of proper behavior. 4
Suggesting that Sternberg had placed his personal interests above patient care while
potentially risking Nanticoke’s tax-exempt status, Werner concluded by notifying
Sternberg that the MEC would be convened to examine the matter within fourteen days
as required under the Credentials Policy.
According to Sternberg, the imposition of a precautionary suspension effectively
ends a physician’s career since a suspension that lasts more than thirty days must be
reported to a federal database pursuant to federal law. Thus, by design, a precautionary
suspension for Dr. Sternberg would mean that all future employers would know of his
alleged conduct at Nanticoke.
Section 6.C. of Nanticoke’s Credentials Policy provides for the precautionary
suspension of Medical Staff employees. The relevant portion of the Credentials Policy
maintains:
6.C.1. Grounds for Precautionary Suspension or Restriction:
a) The President of the Medical Staff, the chairperson of a clinical
the CEO or the Board Chairperson will each have
department,
restrict all or any portion of an individuals
the authority to suspend or
sole discretion, failure to take such
clinical privileges whenever, in their
action may result in imminent danger to the
health and/or safety of any
opportunity to refrain
individual. The individual may be given an
voluntarily from exercising privileges pending an
investigation.
b) Precautionary suspension or restriction is an interim step in the
review activity, but it is not a complete professional review
professional
It will not imply any final finding of responsibility
action in and of itself.
for the situation that caused the
suspension or restriction.
c) A precautionary suspension or restriction will become effective
immediately
upon imposition, will immediately be reported in writing to
4 Letter from Daniel Werner, CEO, Nanticoke Memorial Hospital, to Richard Sternberg, Physician,
Nanticoke Memorial Hospital (Oct. 13, 2006).
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President of the Medical Staff, and will remain in
the CEO or Executive Committee.
the CEO and the
effect unless it is modified by
6.C.2. Executive Committee Procedure:
a) The Executive Committee will review the matter resulting in a
precautionary suspension or restriction within a reasonable time
under the
circumstances, not to exceed 14 days. Prior to, or
the individual may be given an
as part of, this review,
Committee. The
opportunity to meet with the Executive
individual may propose ways other than precautionary
suspension or restriction to protect patients and/or employees, depending
on the circumstances.
b) After considering the matters resulting in the suspension or restriction
and the individual’s response, if any, the Executive Committee will
determine whether there is sufficient information to warrant
recommendation, or whether it is necessary to
a final
commence an investigation.
The Executive Committee will also
suspension or restriction
determine whether the precautionary
should be continued, modified, or terminated
pending the
completion of the investigation (and hearing, if applicable).
c) There is no right to a hearing based on the imposition or continuation of
a precautionary suspension or restriction. 5
In accordance with the Credentials Policy, the MEC met to review the matter
resulting in Sternberg’s precautionary suspension on October 16, 2006. During the MEC
meeting, it was recommended that action on the precautionary suspension be continued
until the previously scheduled hearing on Sternberg’s recommendation of revocation was
held. The MEC’s decision was relayed to Sternberg via a letter written by Werner on
October 18, 2006. It also mentioned the possibility, once again, of treating the matter as
Sternberg’s choice to pursue a leave of absence for the purpose of focusing on his
election campaign.
The record reveals that the MEC never met in early November of 2006, as
scheduled, to review Sternberg’s recommendation of revocation. Instead, the hospital
5 Nanticoke Memorial Hospital Staff Credentials Policy §§ 6.C.1, 6.C.2.
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and Sternberg’s representatives engaged in negotiations to resolve both the precautionary
suspension and the recommendation of revocation issues. On December 7, 2006,
Nanticoke’s Board reappointed Sternberg with clinical privileges until the Board’s
January of 2007 meeting. Sternberg’s month-long reappointment was subject to his
approval and compliance with certain conditions. One of these conditions required
Sternberg to complete a video training portion of the Physicians Universal Leadership
Skills Program.
Moreover, both parties reached an agreement that called for Sternberg’s
precautionary suspension to be characterized as a leave of absence. The agreement to
consider the precautionary suspension as a leave of absence signified that Sternberg
would not be reported – and Nanticoke would not have to report – Sternberg’s alleged
conduct to federal authorities. The agreement also meant that both parties were to
recognize that the precautionary suspension did not occur. Thereafter, Hospital officials
informed staff at that time that Sternberg was returning from a nearly two-month leave of
absence upon his reinstatement on December 13, 2006.
This agreement or compromise is important to this case. Sternberg had the
chance to seek an injunction or restraining order regarding his precautionary suspension.
He did not pursue these options. Furthermore, Sternberg had the opportunity for a full
due process evidentiary hearing as to whether there was a factual basis for the
suspension. Instead, he chose to resolve the issue by an agreement that was of benefit to
him.
In January of 2007, the MEC lifted the Recommendation of Revocation in favor
of a conditional reappointment. Sternberg remained with Nanticoke until his resignation
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effective January 31, 2008. The record reveals no evidence of alleged disruptive
behavior by Sternberg from December of 2007 until his resignation from Nanticoke.
After completing a remedial course, the Defendants contend that Sternberg’s improved
conduct shows that the precautionary suspension ultimately prolonged his career as it
forced him to obtain help to control his behavior.
This litigation is brought by Sternberg against Nanticoke, Werner, and fourteen
physicians (hereinafter collectively the “Defendants”) who were members of the MEC
during Sternberg’s precautionary suspension. Sternberg’s central contention is that the
precautionary suspension imposed by Werner and continued by the MEC was improper
under both Nanticoke’s Credentials Policy as well as state and federal statutes because
the failure to impose the suspension would not have resulted in imminent danger to the
health and safety of any individual. As a result, Sternberg has brought a multi-count
complaint for damages for tortious interference with business relations, negligence,
breach of contract and implied covenant of good faith and fair dealing, intentional
infliction of emotional distress, defamation, and vicarious liability. As a result of the
precautionary suspension issued on October 13, 2006, until his staff privileges were
reinstated on December 13, 2006, Sternberg seeks $1.9 million in damages.
The Defendants have filed a counterclaim seeking attorney’s fees pursuant to the
Health Care Quality Improvement Act of 1986, 42 U.S.C. §§1101-1152, (hereinafter the
“HCQIA”) and under 2.C.2.(e) of Nanticoke’s Medical Staff Credentials Policy.
Sternberg has filed a motion for summary judgment as to the Defendants’ counterclaim
arguing that they have failed to establish threshold requirements under the HCQIA and
the Credentials Policy for the award of attorney’s fees. The Defendants have since filed a
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motion for summary judgment asserting immunity from liability under the HCQIA, the
Medical Staff Credentials Policy, and, for all of the Defendants other than the hospital,
Delaware’s Medical Practices Act, 24 Del. C. § 1768(a) (hereinafter “Medical Peer
Review Statute”).
This decision will examine the Plaintiff’s motion for summary judgment
regarding attorney’s fees pursuant to the HCQIA and Nanticoke’s Credentials Policy as
well as the Defendants’ motion for summary judgment on the assertion of immunity
under the HCQIA, the Medical Peer Review Statute, and the Credentials Policy.
STANDARD OF REVIEW
A motion for summary judgment is properly granted if there is no genuine issue
of material fact, and the moving party is entitled to judgment as a matter of law. 6 When a
motion for summary judgment is supported by evidence showing no material issue of
fact, the burden shifts to the non-moving party to demonstrate that there are material
issues of fact requiring trial. 7 Upon motion for summary judgment, the Court must view
the facts in a light most favorable to the non-moving party. 8 The Court will accept as
established all undisputed factual assertions, made by either party, and will accept the
non-movant’s version of any disputed facts. From those accepted facts, the Court will
draw all rational inferences that favor the non-moving party. 9
However, the Court is faced with a relatively unusual legal standard for summary
judgment motions in matters involving professional review action immunity under the
6 Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
7 Urena v.Capano Homes, Inc., 901 A.2d 145, 150 (Del. Super. 2006).
8 Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992).
9 Id.
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HCQIA. The HCQIA alters the summary judgment burden because Sternberg, the non-
mover for summary judgment as to HCQIA immunity, has the burden of demonstrating at
the outset that a reasonable fact finder could conclude by a preponderance of the evidence
that Nanticoke did not meet HCQIA requirements for a professional review action and
had acted unreasonably. 10 As one court has pointed out, “since HCQIA immunity may
only be overcome by a preponderance of the evidence, the statutory presumption in favor
of the health care entity shifts to the plaintiff ‘not only the burden of producing evidence
but the burden of persuasion as well.’” 11 In addition, it is well worth noting that HCQIA
immunity ultimately is a question of law that the trial court may determine on summary
judgment. 12
DISCUSSION
1. The Factual Basis for Summary Judgment is Supported by the Record
As an initial matter, Sternberg has raised several evidentiary issues in support of
his argument that the Defendants fall short of state and federal immunity standards. All
of these arguments relating to the evidentiary record have been crafted to create an
impression that there is a fact question in the case at bar. The Court is not persuaded by
these evidentiary claims, and, accordingly, rejects these arguments
10 Pamintuan v. Nanticoke Memorial Hosp., 192 F.3d 378, 388 (3d Cir. 1999); Lipson v. Anesthesia
Services, P.A., 790 A.2d 1261, 1272 (Del. Super. 2001) (“Plaintiffs bear the burden of establishing that
[defendant] is not entitled to immunity under the statute, and, in this regard, the burden on summary
judgment is transferred at the outset of the analysis to the non-moving party.”); See also 42 U.S.C. §
1112(a)(4) (“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.”).
11 Singh v. Blue Cross/Blue Shield of Massachusetts, Inc., 308 F.3d 25, 33 (1st Cir. 2002) (citing Jerome A.
Hoffman, Thinking about Presumptions: The Presumption of Agency from Ownership as Study Specimen,
48 Ala.L.Rev. 885, 896-897 (1997)).
12 Onel v. Tenet Healthsystems, 2003 WL 22533616, *2 ( E.D.La.Oct. 31, 2003).
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The Defendants have presented sufficient evidence in their filings with the Court
to dispose of this matter. The Court reaches its decision based on the following
undisputed and material facts:
for a
1. Sternberg’s behavior had been a subject of concern to hospital officials
substantial period of time prior to his precautionary suspension.
2. The MEC voted to recommend that Sternberg’s privileges be revoked at
Nanticoke prior to the incident with the reporter which led to his
precautionary
suspension.
3. The MEC’s decision to recommend the revocation of Sternberg’s
privileges
was based on reports regarding his behavior.
4. After it was recommended that his privileges be revoked at Nanticoke,
Sternberg was put on notice by hospital officials, including
Werner, through
repeated warnings, that behavior deemed by
hospital officials to be inappropriate
would result in an immediate
suspension.
5. Sternberg invited a newspaper reporter to observe a procedure on
October 13, 2006. This was done to further Sternberg’s political
campaign for the legislature even though he had been informed that there
was to be no politicking in the hospital.
6. The hospital did not know that the individual who would observe the
procedure was a newspaper reporter prior to the incident on
October 13, 2006.
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7. As a result of the reporter’s presence in the operating room, hospital
officials
had to remove the reporter from the operating room on
October 13, 2006.
8. Werner outlined his reasons for issuing the precautionary suspension
via a letter to Sternberg on October 13, 2006.
9. On October 18, 2006, the MEC voted to continue Sternberg’s
suspension until the hearing on the revocation of his privileges was held.
10. A hearing examining the recommendation that Sternberg’s privileges
be revoked never took place. Instead, Sternberg reached an agreement
with hospital officials to remove the precautionary suspension from his
record and replace it with a leave of absence. As a condition for removing
the precautionary suspension, Sternberg was required to participate in a
remedial program as to his conduct.
11. Thereafter, Sternberg successfully completed a Physicians
Development Program and returned to his clinical practice on December
14, 2006. Sternberg remained at Nanticoke, without incident, until his
resignation on January 31, 2008.
The Court finds any attempt by Sternberg to create a fact question by raising the
particulars of how Werner received the information regarding the reporter’s presence in
the operating room to be irrelevant. For reasons set forth, infra, the Court specifically
holds that Mary Beth Waide’s involvement in any “investigation” is immaterial for
purposes of summary judgment.
16
Nor will the Court disregard the evidentiary record surrounding Sternberg’s
“pattern of disruptive behavior” as inadmissible hearsay. The evidence of Sternberg’s
behavior at the hospital is not being offered for the truth of the matter asserted – that
Sternberg was disruptive. To the contrary, this documentary record is proffered by the
Defendants for the non-hearsay purpose of showing what potential evidence was known
by Werner and the MEC, and what potential evidence was considered, when the
precautionary suspension was issued to Sternberg. 13 Other courts have also concluded
that documentary evidence is non-hearsay when offered to show what the decision maker
considered when engaging in a peer review activity for purposes of the HCQIA. 14
Moreover, the Court will not strike Werner’s affidavit under the “sham affidavit”
doctrine. Under our sham affidavit jurisprudence, “the core of the doctrine is that where
a witness at a deposition has previously responded to unambiguous questions with clear
answers that negate the existence of a genuine issue of material fact, that witness cannot
thereafter create a fact issue by submitting an affidavit which contradicts the earlier
deposition testimony, without adequate explanation.” 15 In order for the sham affidavit
doctrine to be applicable, six elements must be met. 16 The Court concludes that at least
two of these elements are missing in the present matter.
13 See D.R.E. 801
14 See Johnson v. Christus Spohn, 2008 WL 375417, at *1 (S.D. Tex. Feb. 8, 2008) (concluding that a
timeline that outlined the case for HCQIA immunity was “admissible for the non-hearsay purposes of
showing what evidence various peer review committees considered and whether the committee members
reasonably believed they were acting to further quality healthcare. These considerations are relevant to
whether Defendants are entitled to immunity from damages under both federal and state law….”).
15 In re Asbestos Litigation, 2006 WL 3492370, at *5 (Del. Super. Nov. 28, 2006).
16 Id. (The sham affidavit rule “requires the trial court to find the following elements before striking an
affidavit or deposition errata sheet as a sham: (1) prior sworn deposition testimony; (2) given in response to
unambiguous questions; (3) yielding clear answers; (4) later contradicted by sworn affidavit statements or
17
First, the sham affidavit doctrine requires that the affidavit be submitted for the
purpose of defeating an otherwise properly submitted summary judgment motion. 17
Here, the Defendants have submitted Werner’s affidavit in support of its own motion for
summary judgment on immunity grounds and in opposition to Sternberg’s motion for
summary judgment on HCQIA attorney’s fees. Thus, it cannot be said that Werner’s
affidavit was submitted by the Defendants to defeat Sternberg’s motion when it was
proffered to the Court, in the main part, to support their own motion to the Court.
In addition, the sham affidavit doctrine mandates that the affidavit contradict prior
sworn deposition testimony. 18 The doctrine is designed to ensure that summary judgment
cannot be defeated by a procedural tactic crafted solely to subvert the process. 19 Yet, at
its core, the sham affidavit doctrine requires that the affidavit in question negate genuine
issues of material fact. 20 Despite providing the Court with supposed examples to support
this claim, Sternberg has failed to show that Werner’s affidavit contradicts his prior
deposition testimony. And, for purposes of discussion only, even if Werner’s affidavit
provided contradictory evidence, Sternberg has offered no explanation as to how this
supposed contradictory testimony relates to a material issue of fact that would preclude
summary judgment. Thus, Sternberg’s attempt to strike Werner’s affidavit under the
sham affidavit doctrine must be rejected.
sworn errata corrections; (5) without adequate explanation; and (6) submitted to the court in order to defeat
an otherwise properly supported motion for summary judgment.”).
17 Id.
18 Id.
19 Id., at *4.
20 Id., at *5.
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2. The Health Care Quality Improvement Act
Having concluded that evidentiary issues do not preclude summary judgment, it is
necessary to examine the HCQIA. Congress passed the legislation in 1986 in response to
what has been described as a “crisis” in the monitoring of doctors and other health care
professionals. 21 By the mid-1980’s, state licensing boards had a long history of
examining the conduct and competency of their health care workers. With the passage of
the HCQIA, Congress found that the increasing occurrence of medical malpractice and
the need to improve the quality of medical care were truly national issues that required
greater attention than could be undertaken by any one state. 22 Congress also concluded
that it was far too easy for incompetent doctors to move to different locales to continue
their practices. Therefore, Congress mandated the establishment of a national database
that recorded incidents of misconduct and made this information available to all health
care entities for the screening of potential employees.23
At the same time, Congress also recognized that threats of anti-trust action and
other litigation deterred health care entities from engaging in and conducting meaningful
peer review. To foster peer review that would truly highlight incompetent health care
professionals, the HCQIA was enacted so that health care entities and individual doctors
would be shielded from liability for damages stemming from the examination of health
21See Singh, 308 F.3d at 31.
22Id. See also 42 U.S.C. § 1101(1).
23Singh, 308 F.3d at 31-32. See also H.R. Rep. No. 99-903, at 2, reprinted in 1986 U.S.C.C.A.N. 6384,
6385. (The Court notes, as others have, that the language of H.R. Rep. No. 99-903 referred to legislation
that was substantially similar to the HCQIA. Consequently, the Court cites to the committee report as have
nearly all other courts who have addressed the considerable legislative history of the HCQIA.).
19
care workers. 24 By immunizing peer reviewers from damages, the HCQIA provides a
mechanism by which doctors are encouraged to “identify and discipline other physicians
who are incompetent or who engage in unprofessional behavior.” 25 Ultimately, however,
the goal of the HCQIA is to balance the chilling effect of litigation on peer review with
concerns for protecting physicians improperly subjected to disciplinary action. 26
2. Defendants’ Actions Were Professional Review Actions under the HCQIA
The Defendants’ main contention in this litigation is that they are immune from
damages by virtue of the HCQIA. Among his many arguments against this contention,
Sternberg asserts that the Defendants’ precautionary suspension was not a “professional
review action” for purposes of HCQIA protection. Sternberg asserts that Nanticoke’s
By-laws control the “professional review action” analysis and suggests that because the
Defendants allegedly did not follow their own By-laws, they did not take a “professional
review action” under the HCQIA.
As a threshold matter, the Court must focus its inquiry on whether the Defendants
were engaged in a “professional review action” when Sternberg was suspended.
Congress clearly wanted to establish peer review immunity through the HCQIA. On the
other hand, Congress did not provide immunity for every individual or entity who
engages in investigative activity of health care professionals. Instead, immunity is
available under the HCQIA for “professional review actions.” 27 The HCQIA defines
“professional review actions” as:
24Singh, 308 F.3d at 31-32.
25 H.R. Rep. No. 99-903, at 2, reprinted in 1986 U.S.C.C.A.N. 6384.
26 Bryan v. James E. Holmes Reg’l Med. Ctr., 33 F.3d 1318, 1322 (11th Cir. 1994)
27 42 U.S.C. § 11111(a).
20
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)
professional society,
adversely the clinical privileges, or membership in a
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
relating to a professional review action. 28
activities
For purposes of the definition of “professional review action”, a “professional review
body” under the statute is a “health care entity and the governing body 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.” 29 A “professional review activity,” in turn, is “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.” 30
An extensive statutory analysis of the precautionary suspension at issue here
under the HCQIA is not required. For purposes of HCQIA immunity, the Court finds
that Nanticoke is a health care entity and the MEC a governing body that conducts
professional review activity necessary for a “professional review body.” The Court also
holds that, because the precautionary suspension undisputedly changed, modified, and
adversely affected Sternberg’s privileges and membership at Nanticoke, the
28 42 U.S.C. §11151(9) (emphasis added).
29 42 U.S.C. §11151(11).
30 42 U.S.C. §11151(10).
21
precautionary suspension is both a “professional review activity” and ultimately a
“professional review action.” Thus, were the examination limited solely to the confines
of the HCQIA, the precautionary suspension would most certainly be eligible for HCQIA
immunity as a “professional review action.”
However, Sternberg argues that the Defendants’ By-laws exclude precautionary
suspensions from being considered HCQIA “professional review actions.” First,
Sternberg claims that a hearing is an explicit requirement imposed by the HCQIA on
professional review actions. Sternberg contends that since the Defendants’ By-laws deny
aggrieved doctors the right to a hearing for a precautionary suspension, the By-laws
thereby violate the HCQIA. 31 Sternberg further notes that the plain language of
Nanticoke’s Credentials Policy removes a precautionary suspension from “professional
review action” status under the HCQIA. 32
Moreover, Sternberg argues that the Defendants’ precautionary suspension was
not a “professional review action” as neither Werner nor the MEC made the
determination that failure to suspend Sternberg may have resulted in imminent danger to
the health and/or safety of any individual as required by the Credentials Policy.33
Because he reasons that the Credentials Policy controls the analysis of the precautionary
31 Nanticoke Memorial Hospital Staff Credentials Policy § 6.C.2.(c) (“There is no right to a hearing based
on the imposition or continuation of a precautionary suspension or restriction.”).
32 Nanticoke Memorial Hospital Staff Credentials Policy § 6.C.1.(b) (“A precautionary suspension or
restriction is an interim step in the professional review activity, but it is not a complete professional review
action in and of itself.”).
33 Nanticoke Memorial Hospital Staff Credentials Policy § 6.C.1.(a) (“The President of the Medical Staff,
the chairperson of a clinical department, the CEO or the Board Chairperson will each have the authority to
suspend or restrict all or any portion of an individuals clinical privileges whenever, in their sole discretion,
failure to take such action may result in imminent danger to the
health and/or safety of any
individual. The individual may be given an opportunity to refrain voluntarily from exercising privileges
pending an investigation.”).
22
suspension, rather than the HCQIA, Sternberg asserts that the Defendants’ alleged failure
to abide by the Credentials Policy means that the precautionary suspension cannot be
considered to be a “professional review action” under the HCQIA.
The Court is unconvinced that any of Sternberg’s arguments about the validity of
the precautionary suspension here have merit. Sternberg presupposes that the
Defendants’ Credentials Policy controls the HCQIA analysis when the weight of
authority indicates otherwise. The Court concludes that the precautionary suspension
was a “professional review action”, the propriety of which will be examined according to
HCQIA immunity standards.
An analysis of HCQIA case law shows that the HCQIA’s definition of
“professional review action” is definitive and any deviation with respect to the By-laws is
immaterial at this stage of the analysis. 34 “HCQIA immunity is not coextensive with
compliance with an individual hospital’s bylaws. Rather, the statute imposes a uniform
set of national standards. Provided that a peer review action … complies with those
[HCQIA] standards, a failure to comply with hospital bylaws does not defeat a peer
reviewer’s right to HCQIA immunity from damages.” 35
34 See Wahi v. Charleston Area Med. Ctr., 563 F.3d 599, 609 (S.D. W. Va. 2006).
35 Id. (quoting Poliner v. Texas Health Systems, 537 F.3d 368, 380-81 (5th Cir. 2008)). See also Meyers v.
Columbia/HCA Healthcare Corp., 341 F.3d 461, 469-470 (6th Cir. 2003) (Failure to comply with hospital
bylaws does not defeat immunity since “even assuming [defendant hospital] did violate the bylaws, the
notice and procedures complied with the HCQIA’s statutory ‘safe harbor’.”); Smith v. Ricks, 31 F.3d 1478,
1487 (9th Cir. 1994) (“Whether or not [defendant hospital] violated state law or professional guidelines is
irrelevant because once the immunity provisions of the HCQIA are met, defendants ‘shall not be liable in
damages under any law of the United States or of any State based on a professional review action.”);
Bakare v. Pinnacle Health Hosps., Inc., 469 F. Supp. 2d 272, 290 (M.D. Pa.2006)( “The court need not
determine whether MEC followed the Bylaws. HCQIA immunity attaches when the reviewing body
satisfies the requirements under HCQIA, regardless of its own policies and procedures.”); Brader v.
Allegheny Hosp. 167 F.3d 832, 842 (3d Cir. 1999) (“The HCQIA does not require that a professional
review body’s entire course of investigative conduct meet particular standards in order for it to be immune
from liability for its ultimate decision.”); Wieters v. Roper Hosp., 2003 WL 550327, at *6 (4th Cir. Feb. 27,
2003) (“Nothing in the HCQIA makes immunity depend on adherence to bylaws…”); Reed v. Franklin
23
Even though there is an abundance of case law to support the proposition that adherence
to the By-laws is irrelevant in the HCQIA analysis, Sternberg argues that the case Lipson
v. Anesthesia Services, P.A. creates a unique standard in Delaware such that hospitals
must follow their own By-laws to receive “professional review action” status under the
HCQIA. 36
The Court concludes that Lipson does not mandate this conclusion. The Lipson
plaintiff sued his former medical practice group, a private professional association. 37 The
Lipson Court rejected the group’s assertion of HCQIA immunity, concluding that the
medical association was not a “professional review body” and was not engaged in an
HCQIA protected “professional review action” activity. 38 In doing so, though, the Court
explicitly noted that had the record supported the medical association’s contention that it
conducted the investigation of the plaintiff doctor on behalf of the hospital, the court
Parish Hosp. Serv. Dist., 2006 WL 3589676, at *6 (W.D. La. Dec. 11, 2006) (“Dr. Reed also contends that
the HCQIA does not authorize a health care facility to violate its own bylaws, but he provides no authority
for this position. Deviation from the bylaws, if any occurred, is irrelevant to whether Defendants are
entitled to immunity, so long as they complied with the procedures set forth in the HCQIA.”); Christus
Spohn, 2008 WL 375417, at *13 (“Plaintiffs also at times argue that Defendants violated their own Medical
Staff Bylaws. The HCQIA, however, does not explicitly require compliance with such bylaws….”); Taylor
v. Kennestone Hosp., Inc., 596 S.E. 2d 179, 185 (Ga. Ct. App. 2004) (“[T]here is no statutory requirement
set forth in the HCQIA that a peer review proceeding must be conducted in accordance with a hospital’s
own specific internal bylaws or procedures.”); Poliner, 537 F.3d at 378 (“To be clear, the abeyances are
temporary restrictions of privileges, and we use that terminology, which comes from the Medical Staff
bylaws, in our discussion; but for the purposes of HCQIA immunity from money damages, what matters is
that the restriction of privileges falls within the statute’s definition of ‘peer review action,’ and what we
consider is whether these ‘peer review actions’ satisfy the HCQIA’s standards, and not whether the
‘abeyances’ satisfy the bylaws.”).
36 790 A.2d at 1274.
37 Id. at 1265.
38 Id. at 1274.
24
would have concluded that the medical practice group was a “professional review body”
eligible for HCQIA immunity if engaged in a “professional review action.” 39
In the present case, unlike in Lipson, the Defendants acted as a “professional
review body” engaged in a “professional review action.”40 Consequently, the analysis
into the inquiry could easily end here. Yet, as in Lipson, the Court will nevertheless
address the assertion that Lipson requires adherence to the By-laws for HCQIA
“professional review action” protection.
Sternberg has given great attention in particular to one section of Lipson for his
contention that Delaware has a new standard in HCQIA jurisprudence. There, the Court
stated:
Even assuming arguendo that [defendant medical practice] was acting as a
‘professional review body’ or a ‘health care entity,’ or both, it still can not
credibly maintain that its actions with respect to Lipson constituted
activity. The Court has been presented with compelling
peer review
evidence that [defendant
medical practice] employed no peer review
process at all. 41
The Court has concluded that [plaintiff doctor] has satisfied his burden to
establish that [defendant medical practice] was not engaged in peer review
The Lipson Court went on to state:
39 Id at 1273.
40 To reiterate, a “professional review body” includes “a health care entity…or any committee of a health
care entity…” 42 U.S.C. § 11151(11). A health care entity includes “a hospital that is licensed to provide
health care services by the State in which it is located.” 42 U.S.C. § 11151(4). A “professional review
activity” means an activity of a health care entity which changes or modifies the physicians’ privileges or
membership in the entity. 42
U.S.C. § 11151(10)(c). A “professional review action” is an action of a professional review body which is
taken or made in the conduct of professional review activity and which affects (or may affect) adversely the
clinical privileges, or membership in a professional society, of the physician. 42 U.S.C. § 11151(9). To be
clear, therefore, Nanticoke Hospital is by definition a “health care entity” and the members of the MEC are
a “committee of the health care entity” that was acting as a “professional review body” that engaged in a
“professional review action” because the precautionary suspension adversely affected Sternberg’s clinical
privileges at Nanticoke.
41 Lipson, 790 A.2d at 1273.
25
activity under the HCQIA because it was not acting as a
body.” By failing to follow [the hospital’s]
“professional review
and in the absence of any
Corrective Action/Fair Hearing Plan,
internal “formal peer review” process to guide their
investigation,
[defendant medical practice’s] conduct-at least in the eyes of the
HCQIA- was nothing more than employee discipline, cloaked with no more
protection or immunity from suit than any other personnel decision it may
made. 42
have
Sternberg’s reliance on Lipson is misguided. The emphasis in Lipson on the
importance of following internal peer review procedures was made precisely because
Lipson involved a private group medical practice that employed literally no peer review
procedures. For purposes of the HCQIA, as the Lipson Court intimated, a medical
practice could conceivably be considered a “health care entity” and “professional review
body” necessary to receive “professional review action” protection when it “follows a
formal peer review process for the purpose of furthering quality health care….” 43
Nowhere in Lipson did the Court state that a designated “health care entity” and
“professional review body” – as the Defendants have been defined by the Court – must
follow By-laws and internal procedures to become eligible for “professional review
action” immunization under the HCQIA. To the contrary, the Lipson holding is limited
to the factual circumstances of that case in which a medical practice could not be
considered a “health care entity” or a “professional review body” because it employed
literally no formal internal peer review processes as recognized by the HCQIA. Any
other reading of Lipson would eviscerate the HCQIA’s establishment of a “uniform set of
national standards.” 44
42 Id. at 1274.
43 42 U.S.C. 11151(4)(A)(iii) (emphasis added).
44 Wahi, 563 F.3d at 609.
26
In addition, Sternberg, again, presupposes that Lipson is appropriate here because
the Defendants have failed to follow their own By-laws. The Court rejects the
contention, discussed infra, that Sternberg has met his burden to show that the
Defendants have violated their internal peer review procedures. For purposes of
reing Sternberg’s arguments, the Court has only assumed that the Defendants failed
to adhere to their By-laws. With the facts here so dissimilar to those in Lipson, the Court
cannot see how Lipson’s language in dicta about By-law compliance is controlling in
circumstances where the HCQIA applies – especially considering the case law cited
herein, supra at footnote 35.
Because the HCQIA, rather than the Defendants’ By-laws, is authoritative in the
present controversy, the Court deems the plain language of the Defendants’ Credentials
Policy outlining precautionary suspensions to be irrelevant. 45 Likewise, the Court finds
no merit in the suggestion that the absence of a right to a hearing in the Defendants’
Credentials Policy violates the HCQIA. 46 Thus, the Court concludes that Sternberg has
presented no issue of material fact to preclude a finding that the precautionary suspension
was a “professional review action” eligible for HCQIA immunity.
3. The Four Strands of HCQIA Immunity
45 See Nanticoke Memorial Hospital Staff Credentials Policy § 6.C.1.(b) (“A precautionary suspension or
restriction is an interim step in the professional review activity, but it is not a complete professional review
action in and of itself.”).
46 See Nanticoke Memorial Hospital Staff Credentials Policy § 6.C.2.(c) (“There is no right to a hearing
based on the imposition or continuation of a precautionary suspension or restriction.”); see also 42 U.S.C.
§11112 (c) (“[N]othing in this section shall be construed as … (2) precluding an immediate suspension or
restriction of clinical privileges, subject to subsequent notice an hearing or other adequate procedures,
where the failure to takes such action may result in an imminent danger to the health of any individual.”).
Therefore, the HCQIA does not mandate a hearing as suggested by Sternberg in the event of a
precautionary suspension. In any event, Sternberg’s argument is rendered moot in light of the fact that his
precautionary suspension was to be continued until the hearing on the recommendation of his revocation
was held. This hearing was not held because Sternberg and Nanticoke reached a mutual agreement to
consider the precautionary suspension as a leave of absence.
27
As a “professional review action,” the precautionary suspension issued and
continued by the Defendants potentially offers immunity from damages arising out of the
peer review process. 47 Although the Defendants are eligible to receive statutory
immunity, the Court is required to review the precautionary suspension under HCQIA
immunity standards.
Consequently, in order qualify for HCQIA immunity, the “professional review
action” must have been taken:
2) after a reasonable effort to obtain the facts of the matter,
1) in the reasonable belief that the action was in the furtherance of quality
health care;
meeting the
These four HCQIA standards necessary for immunity will be satisfied if “the
4) in the reasonable belief that the action was warranted by the facts
known after such reasonable effort to obtain facts and after
requirement of paragraph (3). 48
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
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.” 49 Congress adopted an objective, reasonable belief
standard to permit a determination of immunity without an extensive inquiry into the
state of mind of peer reviewers.50 Consequently, the standard is one of objective
47 See 42 U.S.C. § 1111(a).
48 42 U.S.C. § 11112(a).
49 Singh, 308 F.3d at 32 (citing H.R. Rep. No. 99-903 at 10).
50 Singh, 308 F.3d at 32 (citing H.R. Rep. No. 99-903 at 12).
28
reasonableness after looking at the “totality of the circumstances.” 51 Courts have
overwhelmingly concluded that peer review actions should be examined under objective
standards. The Court will thus apply those standards here. 52
In addition, the HCQIA provides that “a professional review action shall be
presumed to have met the preceding standards necessary for protection set out in [42
U.S.C. § 11111(a)] unless the presumption is reed by a preponderance of the
evidence.” 53 As other courts have explained:
[T]he reable presumption of HCQIA section 11112(a) creates an unusual
summary judgment standard that can best be expressed as follows: “Might a
reasonable jury, viewing the facts in the best light for [the plaintiff] conclude that
he has shown, by a preponderance of the evidence, that the defendants’ actions
are outside the scope of § 11112(a)?” If not, the court should grant the
defendants’ motion. In a sense, the presumption language in HCQIA means that
the plaintiff bears the burden of proving that the peer review process was not
reasonable. 54
Therefore, the Court here will focus the inquiry on whether Sternberg provided sufficient
evidence to permit a jury to find that he had overcome, by a preponderance of the
evidence, the presumption that the Defendants would reasonably have believed that they
had met HCQIA immunity standards. 55
51 Frelich v. Upper Chesapeake Health, Inc., 313 F.3d 205, 212 (4th Cir. 2002) (citing Imperial v.
Suburban Hosp. Ass’n, Inc., 37 F.3d 1026, 1030 (4th Cir. 1994)).
52 See, e.g., Singh, 308 F.3d at 32; Imperial, 37 F.3d at 1030 (“The standard is an objective one which looks
to the totality of the circumstances.”); Smith, 31 F.3d at 1485 (“[T]he ‘reasonableness’ requirements of §
11112(a) were intended to create an objective standard, rather than a subjective standard.”); Bryan, 33 F.3d
at 1335 (“The test is an objective one, so bad faith is immaterial. The real issue is the sufficiency of the
basis for the [Hospital’s] actions.”).
53 42 U.S.C. § 11112(a)(4).
54 Bryan, 33 F.3d at 1333 (quoting Austin v. McNamera, 979 F.2d 728, 734 (9th Cir. 1992)).
55 Bryan, 33 F.3d at 1333.
29
4. The Defendants Acted in the Reasonable Belief that the Precautionary
Suspension
was in the Furtherance of Quality Health Care
In order for HCQIA immunity to attach, the precautionary suspension of
Sternberg must have been taken “in the reasonable belief that the action was in the
furtherance of quality health care.” 56 Sternberg argues that the precautionary suspension
was not based on the concern for patient safety or for health care improvement but was
actually motivated by a desire to discipline him for his zealous advocacy of patient care
in the hospital. Citing personal animosity towards him, Sternberg also suggests that the
precautionary suspension was reflective of a “one-strike policy” designed to provide
hospital leadership with the means to discipline Sternberg outside of the confines of the
By-laws.
The HCQIA does not require that the precautionary suspension of Sternberg result
in an actual improvement of the quality of health care nor does it require that the
conclusions reached by the reviewers be correct.57 Instead, the analysis is an objective
inquiry in which the totality of the circumstances is considered and the good or bad faith
of the reviewers is irrelevant. 58 Moreover, Sternberg must show that the totality of the
information available to the Defendants did not provide a basis for a reasonable belief
that their actions would further quality health care. 59
56 42 U.S.C. §11112(a)(1).
57 Imperial, 37 F.3d at 1030 (“But more importantly to the issue at hand, even if Imperial could show that
these doctors reached an incorrect conclusion on a particular issues because of a lack of understanding, that
does not meet the burden of contradicting the existence of a reasonable belief that they were furthering
health care quality in participating in the peer review process.”).
58 Poliner, 537 F.3d at 378.
59 Pamintuan, 192 F.3d at 389.
30
Considering the totality of the information available to the Defendants, the Court
concludes that Sternberg has failed to meet his burden. Knowing that Nanticoke had
recommended a revocation of his privileges at the hospital, together with multiple
subsequent warnings that a disruption of any kind would result in an immediate
suspension, Sternberg made the conscious decision to bring a newspaper reporter into the
operating room. Sternberg had been informed by his superiors that he was not to be
involved in politicking at the hospital. Nevertheless, without informing hospital
administrators, Sternberg brought the newspaper reporter into the operating room for the
purpose of advancing his political career. It is reasonable to infer that Sternberg did this
under the false pretense of “education” – “education” for the reporter as opposed to
traditional “education” customarily reserved for nursing or medical students. Hospital
officials were entitled to assume that when Sternberg asserted that the observer was
present for “education,” the individual’s presence was related to the practice of medicine
rather than to promote his election to office.
When medical staff learned that the newspaper reporter was in the operating
room, an administrator was informed of the situation. Hospital personnel entered the
operating room and escorted the reporter out of the facility. The hospital could
reasonably believe that this incident was a disruption of the normal, orderly, and
regimented protocol absolutely necessary for the effective treatment of patients.
And it is just as reasonable to find that the Defendants acted in the reasonable
belief that suspending Sternberg would result in the furtherance of quality healthcare at
Nanticoke. The Defendants knew of the history of allegations regarding Sternberg’s
behavior of the hospital; they certainly knew that his privileges had been recommended
31
to be revoked; they knew that he had repeatedly been warned not to cause a disruption in
the hospital pending the hearing to review his privileges. Nevertheless, they were
informed that he caused some sort of disruption by bringing a hospital reporter into an
operating room under false pretenses. Faced with possibility that Sternberg would
continue to be disruptive at the hospital absent a change in his interpersonal skills, the
Defendants’ decision to suspend him was reasonably in the furtherance of quality
healthcare.
The Court holds that any claim of personal animosity toward Sternberg in this
process is irrelevant. 60 Nor can the Court find that the mere allegation of a “one-strike
policy” is sufficient to show that the Defendants did not have a reasonable belief that the
action would result in the furtherance of quality health care. Even if the Defendants
engaged in a “one-strike policy” against Sternberg, which is speculative and immaterial,
Sternberg simply does not show that the precautionary suspension was not based on the
reasonable belief that it would further quality care at Nanticoke considering the long
history of allegations surrounding his disruptive behavior. As a result of all the evidence
before the Defendants, the Court concludes that Sternberg has failed to raise an issue of
material fact as to whether his suspension was taken in the reasonable belief that it would
further quality health care.
5. The Defendants Made a Reasonable Effort to Obtain the Facts Before Issuing
the
Precautionary Suspension
60 See Bryan, 33 F.3d at 1335 (“[A]ssertions of hostility do not support his position [that the hospital is not
entitled to the HCQIA’s protections] because they are irrelevant to the reasonableness standards….”).
32
The second prong of HCQIA immunity mandates that the professional review
action must have been taken “after a reasonable effort to obtain the facts of the matter.” 61
Sternberg asserts that the Defendants did not make a reasonable effort to obtain the facts
prior to issuing the precautionary suspension. Sternberg also claims that the Defendant
members of the MEC failed to undertake a reasonable investigation when his
precautionary suspension was continued.
More specifically, Sternberg’s argument centers around the contention that
Werner failed to make a reasonable effort to obtain the facts before issuing the
precautionary suspension indicating that Sternberg was an imminent danger to the health
and safety of any individual. Likewise, Sternberg maintains that the MEC did not fulfill
its purported “check and balance” function in the By-laws by reaffirming Werner’s
decision to suspend Sternberg without examination.
To support these assertions, Sternberg refers to the deposition testimony of
several hospital employees to show that the Defendants unreasonably failed to obtain the
facts surrounding the precautionary suspension. In particular, Sternberg cites to Waide’s
deposition testimony which suggests that she did not initiate a formal investigation of the
reporter’s presence in the room. Waide’s testimony, according to Sternberg, conflicts
with the claim that Werner asked Waide to investigate the matter. As a result, Sternberg
claims to have raised an issue of material fact regarding the reasonableness of the
Defendants’ efforts to obtain the facts surrounding the suspension.
61 42 U.S.C. § 11112(a)(2).
33
The HCQIA does not require the ultimate decision maker to investigate the matter
independently. 62 Only a reasonable effort to obtain the facts is required to meet HCQIA
standards, and the Court must consider the totality of the process leading up to the
professional review action. 63 To meet his burden here, Sternberg must establish that no
reasonable jury could conclude that the Defendants made a reasonable effort to obtain the
facts. 64
Reviewing the totality of the process surrounding Sternberg’s precautionary
suspension, the Defendants made a reasonable effort to obtain the facts. Before the
precautionary suspension, the Defendants were aware that Sternberg’s privileges were
subject to revocation, pending a hearing, due to allegations of disruptive behavior at the
hospital. The Defendants were aware that Sternberg had been repeatedly notified that
any further disruptive incident would result in an immediate suspension. Moreover, the
Defendants knew that Sternberg had been warned by hospital officials not to engage in
activity that could be construed as political in nature.
Given these circumstances, Werner’s effort to obtain the facts was reasonable.
While Sternberg attempts to create a fact question regarding Werner’s investigation of the
reporter’s presence in the operating room, the nuances of this examination are irrelevant.
Werner most assuredly was not in the operating room when the reporter was removed.
Later that same day, however, Werner penned a letter outlining the precautionary
suspension. Werner had to have attained the information relayed in that letter from some
62 Poliner, 537 F.3d at 380 (citing Gabaldoni v. Wash. County Hosp. Ass’n., 250 F.3d 255, 261 (4th Cir.
2001)).
63 Poliner, 537 F.3d at 380 (citing Matthews v. Lancaster General Hosp., 87 F.3d 624, 637 (3d Cir. 1996)).
64 Poliner, 537 F.3d at 380.
34
source that had knowledge of the situation. Werner was entitled to rely on the
information provided to him by hospital staff, and there is nothing in the record to
suggest that the information was “so obviously deficient so as to render Defendants’
reliance ‘unreasonable.’”65
A formal examination may not have been initiated by Werner, but an extensive
inquiry was not necessary either. As a decision-maker at the hospital, Werner was readily
aware of what has been described as a “shock wave” when it was learned that a reporter
was in the operating room. In light of all that had occurred and all that was known
leading up to the precautionary suspension, Sternberg was only entitled to a reasonable
effort to obtain the facts, not a perfect effort.66 The Court is persuaded that this fact-
gathering was entirely reasonable under the circumstances.
While the reasonableness of this inquiry is fact sensitive, other courts have
reached the same conclusion when hospitals have performed minimal investigations. The
court considering Onel v. Tenet Healthsystems, for instance, concluded that a hospital
administrator made a reasonable effort to obtain the facts even though he did not have
first hand information about the incident giving rise to the precautionary suspension of a
practicing internist.67 There, the doctor was arrested on suspicion of vehicular homicide
and driving while intoxicated.68 A hospital administrator read in the local newspaper that
the doctor had been arrested and charged in what was reported as an alcohol-related
65 Poliner, 537 F.3d at 380.
66 Id.
67 Onel, 2003 WL 22533616, at *4.
68 Id. at *1.
35
accident. 69 The Onel Court noted that the hospital official was aware that the doctor had
a history of being verbally abusive. The administrator also was made aware that the
doctor was belligerent on the night of the accident. No formal inquiry or extensive
investigation was launched by the defendant hospital when the doctor was summarily
suspended. Even though it was ultimately determined that alcohol was absent from the
doctor’s bloodstream, the Onel Court nevertheless held that the hospital’s fact finding
was reasonable under the facts presented. 70
The Court does not find Onel to be persuasive because of any factual similarities.
Rather, Onel underscores the point that the HCQIA does not require a sweeping inquiry
in every case. Just as it was reasonable for the administrator in Onel to suspend the
doctor, in part, after reading of the accident in a newspaper, Werner’s fact finding
mission was reasonable given the obvious disruption by a doctor who had been warned
time and again not to cause an incident at the hospital.
Similarly, the MEC’s examination of the precautionary suspension was
reasonable under the circumstances. Having concluded that the HCQIA controls the
analysis, Sternberg’s contention regarding the MEC’s supposed “checks and balances”
role is of no consequence here. 71 Even if the MEC was required to review the decision
to suspend Sternberg, as it is suggested, the Court is satisfied that the MEC exercised
reasonable diligence when it reaffirmed Werner’s order. The MEC, for instance,
recommended revocation of his privileges, and it is clear from the record that members of
69 Id., at *4.
70 Id., at **4-5.
71 Because the HCQIA is the focus of the inquiry, Sternberg’s suggestion that the MEC violated the By-
laws when it continued the precautionary suspension is not relevant to the fact-gathering discussion.
36
the MEC were well aware that Sternberg was asked not to be disruptive after this
decision. 72 Considering the MEC’s close involvement with Sternberg leading up to the
precautionary suspension, a minimal review of Werner’s decision would be reasonable
under the circumstances.
The record further indicates that the MEC’s examination of the suspension meets
HCQIA standards. During its meeting on October 18, 2006, the MEC specifically
debated Sternberg’s suspension, including the circumstances behind Werner’s decision,
and concluded that “given the previous communications with the physician about the
need to control future behaviors, this was something that violated patient rights, disrupted
the OR and warranted the action.” 73
The Court thus finds that the MEC engaged in a reasonable fact-finding process
when it recommended that Sternberg’s precautionary suspension be continued. Weighing
the totality of the process leading up to Sternberg’s suspension, the Court cannot
conclude that Sternberg has met his burden to show that the Defendants failed to make a
reasonable effort to obtain the facts under the circumstances presented.
Finally, the Court notes that much of this analysis is necessary to address
Sternberg’s arguments. Yet, Sternberg does not dispute the core facts known to Werner.
Even though he disagreed with it, Sternberg had been informed of the policy prohibiting
political activity at the hospital. Sternberg brought a newspaper reporter into the
operating room after obtaining permission to have a visitor for educational purposes. It
was reasonable for the hospital staff approving the request to conclude that education in
72 See, e.g., Letter from Dr. Thomas Benz, Chief of Surgery, Nanticoke Memorial Hospital, to Richard
Sternberg, Physician, Nanticoke Memorial Hospital (August 28, 2006).
73 Minutes of Medical Executive Committee, Nanticoke Memorial Hospital (October 18, 2006).
37
this setting was for medical education and training and not for a newspaper reporter’s
“education” in covering a political campaign. Nor is it disputed that a staff member at
Nanticoke had to enter the operating room and remove the newspaper reporter. As a
result, Sternberg’s arguments here must fail.
6. Adequate Notice and Hearing Procedures were provided to Sternberg
A. The Defendants had Reasonable Grounds to Suspend Sternberg as an
Imminent Danger to the Health of any Individual.
The HCQIA mandates that professional review actions be taken “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.” 74 The law, however,
contains an emergency provision that permits suspensions “subject to subsequent notice
and hearing or other adequate procedures, where the failure to take such an action may
result in an imminent danger to the health of any individual.” 75 The emergency
provision does not require that imminent danger actually exist before a summary restraint
is imposed. “It only requires that the danger may result if the restraint is not imposed.” 76
Ultimately, the central contention in Sternberg’s case is that the Defendants did
not make the determination that failure to suspend him or continue the suspension would
have caused imminent danger to the health of any individual as referenced by the HCQIA
emergency provision. Sternberg claims that the “imminent danger” standard is only
74 42 U.S.C. § 11112(a)(3).
75 42 U.S.C. § 11112(c)(2) (emphasis added).
76Onel, 2003 WL 22533616 at *5 (quoting Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1443
(9th Cir. 1994)).
38
satisfied when it is shown that a physician was incompetent, has substance abuse issues,
or has deliberately harmed patients. Consequently, Sternberg implies that disruptive
behavior, outside of these confines, is insufficient to meet imminent danger principles.
Further, Sternberg asserts that the Defendants did not make – and could not make – the
determination that he was an imminent danger to the health of any individual.
At first glance, Sternberg appears to have sufficient evidence to raise a genuine
issue of material fact as to whether he was an imminent danger to any individual.
Sternberg notes that Werner did not specifically mention the potential for imminent
danger in the letter in which the precautionary suspension was issued. He observes that
Werner did not discuss the possibility that Sternberg was an imminent danger when the
MEC met to examine the precautionary suspension. In addition, as Sternberg points out,
several individual Defendants, comprised of doctors and peer reviewers, testified after the
fact that in their estimation he was not an imminent harm to the health or safety of any
individual.
While this evidence is interesting, it is not determinative. No magic word or
written phrase related to imminent danger by Werner, alone, would have triggered
HCQIA immunity, and Werner’s failure to communicate the precise imminent danger
terminology does not end the inquiry either. 77 Likewise, those assertions made by
Sternberg’s colleagues that he was not a direct risk to patient safety have the benefit of
hindsight. These opinions lack the expertise, perspective, or knowledge of the HCQIA
upon which to render a legal conclusion in the eyes of the law. As a result, the Court
77 The Court recognizes that even though Werner may not have stated “imminent danger” in his letter
issuing the precautionary suspension to Sternberg, he did write that “your behavior has left me no choice
but to protect patients from your disruptive conduct by removing you from the hospital immediately.”
Werner Letter (Oct. 13, 2006) (emphasis added). Werner’s letter implicitly recognizes that Sternberg was
an imminent danger to patients.
39
must review the HCQIA to determine as a matter of law whether a competent physician
with behavioral issues can be considered an imminent danger for the emergency
provision.
Essential to Sternberg’s argument is the contention that disruptive doctors cannot
be an imminent danger to the health and safety of any individual. The Court rejects this
narrow approach to HCQIA jurisprudence. To the contrary, behavioral issues were most
certainly contemplated by Congressional officials when the HCQIA was enacted. The
Court observes, for instance, that the legislative history for the HCQIA highlights
unprofessional conduct or behavior as an area of concern on no less than fifteen
occasions. 78
That Congress meant to include disruptive doctors within the purview of the
HCQIA is further exemplified through the statutory construction of a “professional
review action.” As one court explained:
The plain language of the statute indicates the breadth of “conduct” encompassed
within the definition of “professional review action” by the inclusion of conduct
that “could affect adversely the health or welfare of a patient.” 42 U.S.C. §
11151(9). The statute contemplates not only potential harm through use of the
term “could,” but it also affords protection to actions taken against physician
conduct that either impacts or potentially impacts patient “welfare” adversely,
meaning patient “well being in any respect; prosperity.” Black’s Law Dictionary
(West Group, 7th Ed.1999). Even if the statutory language was deemed to be
ambiguous, the legislative history would support the same construction. See
Health Care Quality Improvement Act of 1986, H.R. 5540, 99th Cong.2d Session
(1986), 132 Cong. Rec. at 30768 (Oct. 14, 1986) (“competence and professional
78 See, e.g., H.R. Rep. No. 99-90 at *2 (“This bill is needed to deal with one important aspect of the medical
malpractice problem in this country—incompetent and unprofessional physicians.”); (“The purpose of this
legislation is to improve the quality of medical care by encouraging physicians to identify and discipline
other physicians who are incompetent or who engage in unprofessional behavior.”); (“The bill’s focus is
on those instances in which physicians injure patients through incompetent or unprofessional service, are
identified as incompetent or unprofessional by their medical colleagues, but are dealt with in a way that
allows them to continue to injure patients.”);( “Unfortunately, groups such as state licensing boards,
hospitals and medical societies that should be weeding out incompetent or unprofessional doctors often do
not do so.”) (emphases added).
40
conduct should be interpreted in a way that is sufficiently broad to protect
legitimate actions based on matters that raise concerns for patients or patient
care.”). 79
It is clear that in applying the HCQIA, immunity for professional review actions
is available to combat behavioral matters, such as a revocation of privileges or a denial of
credentialing. 80 In Frelich v. Upper Chesapeake Health, Inc., the court its rationale for
immunizing the denial of a doctor’s medical privileges:
Today’s health care environment has become increasingly complex. As
[plaintiff’s] complaint itself demonstrates, the operation of a hospital requires the
coordination of numerous employees and departments, each with different
responsibilities that build and depend upon each other. Thus, staff cooperation
and communication are essential to ensuring a high quality of patient care.
Disruptive behavior in the workplace can not only affect the moral and teamwork
of the staff itself, but in so doing cause actual harm to patients. 81
However, Sternberg further contends that disruptive doctors who have been suspended
cannot be considered an imminent danger to any individual without a direct risk to patient
safety. A review of the case reveals that such an assertion is misplaced. 82
79 Gordon v. Lewistown Hosp., 423 F.3d 184, 203 (3d Cir. 2005).
80The Court notes that there is an abundance of HCQIA case of case law invoking immunity for
professional review actions based on unprofessional conduct unrelated to medical competence. See, e.g.,
Bryan, 33 F. 3d at 1324 (HCQIA immunity for revoking physician’s privileges where inappropriate and
unprofessional conduct was exhibited stemming from “being a volcanic-tempered perfectionist, a difficult
man with whom to work, and a person who regularly viewed it as his obligation to criticize staff members
for perceived incompetence or inefficiency.”); Yashon v. Hunt, 825 F.2d 1016, 1027 (6th Cir. 1987) (“a
physician’s unprofessional conduct, incompatibility and lack of cooperation on a hospital staff are
appropriate considerations for denying staff privileges”); Mahmoodian v. United Hosp. Center, Inc., 404
S.E. 2d 750, 759 (W.Va. 1991) (“A hospital has the right, indeed the duty, to ensure that those persons who
are appointed to its medical staff meet certain standards of professional competence and professional
conduct, so long as there is a reasonable nexus between those standards and the hospital’s mission of
providing overall quality patient care”).
81 Frelich, 313 F. 3d at 219.
82 As multiple cases have pointed out, “other courts have gone as far as to conclude a finding that the peer
reviewer’s actions were taken in a reasonable belief the action furthered quality health care necessitates a
finding that a summary suspension was taken to prevent the possibility the physician could harm an
individual.” Christus Spohn, 2008 WL 375417, at *12 (citing Peyton v. Johnson City Med., 101 S.W. 3d
76, 88 (Tenn.Ct. App. 2002)). The Court is perplexed as to how Sternberg could imply that disruptive
behavior cannot meet the imminent danger standard as a matter of law in light of all the evidence to the
contrary, discussed infra.
41
Given the intent to regulate unprofessional conduct, HCQIA case law indicates
that the imminent danger standard is much broader in scope than Sternberg represents.83
In Sugarbaker v. SSM Health Care, for example, the court rejected a contention offered
by a surgeon that the hospital was not entitled to HCQIA protection because the doctor
had no patients admitted at the time of his suspension, thus implying that the physician
was of no imminent danger to any one individual. The court explained:
We see no reason to limit the HCQIA emergency provisions to situations in which
there is a currently identifiable patient whose health may be jeopardized. The
HCQIA does not require imminent danger to exist before a summary restraint is
imposed. It only requires that the danger may result if the restraint is not
imposed. 84
Other cases highlight the breadth of the imminent danger standard described in
Sugarbaker. The plaintiff internist in Onel argued that he was of no imminent danger to
any individual because his medical competency was not at issue. 85 In rejecting this
claim, the Onel Court reasoned:
Dr. Onel argues that the emergency provision does not apply because the accident
had nothing to do with patient care or his ability to practice medicine. Dr. Onel
argues that prior cases have used the summary suspension provision only
following evidence of incompetence in patient care. Although the plaintiff
correctly observes that the summary suspension provision can and has been
invoked in cases of physician incompetence in patient care, § 11112(c)(2) is not
limited to instances of incompetence in patient care. The emergency provision’s
language is broad, and permits summary action in any case where the failure to
act “may result in imminent danger” to any individual’s health, subject only to
subsequent notice and hearing. 86
83 See Sugarbaker v. SSM Health Care, 190 F.3d 905 (8th Cir. 1999); Jenkins v. Methodist Hosps. of
Dallas, Inc., 2004 WL 3393380 (N.D.Tex. Aug. 14, 2004); Straznicky v. Desert Springs Hosp., 2009 WL
1905298 (D. Nev. July 1, 2009); Onel, 2003 WL 22533616.
84 Sugarbaker, 190 F.3d at 918.
85 Onel, 2003 WL 22533616, at *5.
86 Id.
42
Sternberg attempts to distinguish the holding of Onel by suggesting that the case applies
only where a physician has a substance abuse problem. In doing so, Sternberg ignores
the permissive nature of the emergency provision underscored by the “may result in
imminent danger” language. He also fails to consider that substance abuse fits in
squarely with the proposition that disruptive behavior can result in imminent danger.
Similarly, in Jenkins v. Methodist Hospitals of Dallas, Inc., although there was
some suggestion that the plaintiff doctor was incompetent, the Court focused its analysis
on accusations that the cardiologist fostered a “hostile work environment.” 87 The court
recognized that the complaints against the physician “allege demeaning comments to
staff, berating the staff, threatening the staff with loss of employment, and other
disruptive behavior.” 88 In concluding that the summary suspension was reasonable
pursuant to HCQIA emergency provision standards, the Jenkins Court specifically relied
upon evidence that the doctor was “largely responsible for a hostile work
environment…that was potentially injurious to patient care” and an indication that the
physician made the staff feel “rushed to perform their duties, causing them to fear
mistakes.” 89
While Jenkins directly counters Sternberg’s contention that disruptive doctors do
not represent an imminent danger to the health of any individual, the Straznicky v. Desert
Springs Hospital case further reinforces the point. There, the plaintiff physician entered
87 Jenkins, 2004 WL 339380, at *2.
88 Id., at *3.
89 Id., at *19.
43
an operating room where one of his colleagues was performing a surgical procedure. 90 In
need of a lead shield, the plaintiff asked his colleague about using the surgical instrument
in his own surgery. When the colleague denied this request, the plaintiff became
“confrontational” and “visibly upset” and took the lead shield anyway. 91
Thereafter, the plaintiff was summarily suspended for “disruptive conduct that
caused a distraction” to his fellow surgeon. 92 Challenging the propriety of his
suspension, the plaintiff argued that he needed the shield for his own protection and did
not directly harm any individual. In response, the Straznicky Court observed that “by
removing this equipment from the operating room where it was needed for a procedure,
Straznicky placed someone in that adjacent operating room at harm.” 93 The Straznicky
Court thus rejected the supposition that the physician had to cause direct harm to any
individual to satisfy imminent harm criteria. In addition, the court responded to a
contention that the taking of the shield was an isolated incident ill reflective of “on-going
imminent harm to patients”:
The argument ignores that past disruptive conduct can be indicative of an
underlying characteristic that could manifest in future disruptive conduct. When
the nature of the disruptive conduct indicates both that an imminent harm to a
patient occurred and that the failure to take immediate action may result in
imminent danger to the health of individuals, a reviewing body can reasonably
believe that an immediate, summary suspension is warranted. 94
90 Straznicky, 2009 WL 1905298 at *2.
91 Id.
92 Id.
93 Id., at *11
94 Id., at *9.
44
As the Straznicky Court further explained, “the court readily concludes that a patient is
placed in danger of imminent harm when someone causes the surgeon, who is performing
a procedure on a patient, to become visibly disturbed and distracted during the
procedure.” 95
The common thread in all of these cases is that summarily suspended doctors
have been found to be an imminent danger to the health of any individual as a result of
their unprofessional behavior rather than their competency. Because a review of the case
law reveals that a disruptive physician can be an imminent danger for purposes of the
emergency provision, Sternberg’s narrow reading and application of HCQIA
jurisprudence misses the mark.
Thus, the question before the Court is not whether Sternberg was an imminent
danger when he was suspended. If it were, the Court would be highly persuaded by the
testimony of Sternberg’s colleagues suggesting otherwise. Instead, the Court holds that
the proper inquiry is whether the Defendants had reasonable grounds for suspending
Sternberg if imminent danger may have resulted had the restraint not been imposed . 96
From the record presented, the Court finds that it was reasonable for the
Defendants to consider Sternberg an imminent danger to the health of any individual
when they issued and continued the precautionary suspension. Both Werner and the
members of the MEC had knowledge of those allegations against Sternberg which led to
the recommendation that his privileges be revoked. After recommending that his
95 Id.
96 Christus Spohn, 2008 WL 375417 at *12 (citing Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d
333, 343-344 (5th Cir. 2002) (“[W]hen determining the amount of process constitutionally due [a
physician] prior to [a summary suspension] of his privileges, the key question is not whether [the
physician] was actually a danger, but whether the [committee implementing the suspension] had reasonable
grounds for suspending him as a danger.”)).
45
privileges be revoked, and by bringing in a reporter to the operating room under what
they reasonably inferred was false pretenses, Sternberg engaged in behavior that most
certainly disrupted the normal order at the hospital. Since, from the Defendants’
viewpoint, Sternberg had shown an inclination to disregard repeated warnings and a
history of disconcerting behavior, the Court finds that it was imminently reasonable for
both Werner and the MEC to conclude reasonably that if Sternberg were not removed
from the hospital imminent danger to patients might result. At the end of the day, it was
reasonable for the Defendants to conclude that Sternberg’s continued disruptive behavior
required action to safeguard against the possibility of imminent danger to their patients.
The Court further notes that Sternberg’s occupation as a surgeon plays some role
in the imminent danger analysis. At least two incidents of his disruptive behavior
allegedly occurred in the operating room close in time to surgical procedures. As
Straznicky recognized, surgeons are members of a select few occupations where “life and
death decisions” are a distinct possibility each time they enter the workplace. In such an
extremely stressful environment, surgeons, in the course of their employment, have a
responsibility, if not duty, to avoid causing distractions. To take Straznicky one step
further, this Court readily accepts that a patient is placed in danger of imminent harm
when a surgeon, who is in the process of performing a procedure on a patient, becomes
visibly disturbed and distracted — regardless of the cause of the disturbance. In light of
the foregoing, Sternberg fails to convince the Court that the Defendants did not have
reasonable grounds to suspend him as an imminent danger to the health of any individual.
B. The Adequacy of the Notice and Hearing Procedures Provided to Sternberg
46
Since the Defendants had reasonable grounds to suspend Sternberg as an
imminent danger to the health of any individual, the Court is satisfied that the
precautionary suspension was appropriate under the HCQIA emergency provision.
However, the analysis of this HCQIA prong does not end there. The HCQIA states that
nothing in the act precludes an immediate suspension based on imminent danger to the
health of any individual “subject to subsequent notice and hearing or other adequate
procedures.” 97
Sternberg correctly notes in this respect that the HCQIA requires a hearing or
other fair procedures before a professional review action can be taken. 98 Sternberg also
recognizes that the hearing requirement can be delayed under the emergency provision if
imminent danger may result from the failure to act. Because Sternberg argues that the
Defendants could not find imminent danger here, he contends that a hearing was required
before the professional review action was initiated. Thus, according to Sternberg, the
failure to provide a hearing before the suspension was issued and continued violates
HCQIA notice and hearing requirements. Sternberg supports his argument here by
suggesting that Nanticoke’s By-laws do not entitle a doctor to a hearing at any time
regarding a precautionary suspension.
The Court has little trouble in rejecting these contentions. As has been discussed,
the Defendants had reasonable grounds to suspend Sternberg as an imminent danger to
the health of any individual. By meeting this standard, the Defendants were not required
97 42 U.S.C. § 11112(c)(2).
98 42 U.S.C. § 11112(a)(3).
47
to provide Sternberg with a hearing before he was suspended. Thus, Sternberg’s
arguments here are not persuasive.
The Court reiterates that the By-laws do not control the HCQIA analysis. Yet,
assuming they did, there is nothing in Nanticoke’s Credentials Policy that violates the
HCQIA on its face. Nanticoke’s By-laws state that “there is no right to a hearing based
on the imposition or continuation of a precautionary suspension or restriction.” 99
Likewise, the HCQIA’s emergency provision indicates that an immediate suspension can
be taken subject to subsequent notice “or other adequate procedures.” 100 With the
inclusion of the “or other adequate procedures” language, the HCQIA, itself, does not
provide a right to a hearing when a doctor is suspended. Consequently, this Court cannot
say that the restriction of a right to a hearing in the Credentials Policy violates the
HCQIA — even if the inquiry was material.
Moreover, the Court notes that the Defendants did provide Sternberg with the
opportunity for a hearing in the wake of his suspension. At the time Sternberg was
suspended, a hearing regarding the revocation of his privileges at the hospital had already
been both scheduled and delayed to accommodate Sternberg’s need for counsel. The
MEC voted that action on the precautionary suspension should be continued until the
hearing on the revocation of Sternberg’s privileges was held.
In light of the recommendation that Sternberg’s privileges be revoked, it was
entirely adequate under the circumstances for the MEC to continue the suspension until
the hearing about his privileges was held. Sternberg and the Defendants mutually agreed
99 Nanticoke Memorial Hospital Staff Credentials Policy § 6.C.2.(c) (emphasis added).
100 42 U.S.C. § 11112(c)(2) (emphasis added).
48
not to have this hearing when it was decided that the precautionary suspension would be
characterized as a leave of absence. This circumstance further reinforces the point that
there were no deficiencies in the due process procedures offered to Sternberg. Outside of
his contentions surrounding the failure of the Defendants to find that he was an imminent
danger, Sternberg does not allege any other due process inadequacies. Because his
imminent danger argument is without merit, the Court finds that Sternberg has failed to
show by preponderance of the evidence that the notice, hearing, or other procedures
afforded to him were inadequate or not fair under the circumstances.
7. The Precautionary Suspension was made in the Reasonable Belief that the
Action was Warranted by the Known Facts
The fourth and final strand of the HCQIA requires that the professional review
action must have been taken “in the reasonable belief that the action was warranted by
the facts known after such reasonable effort to obtain facts and after meeting the
requirements of paragraph (3).” 101 This prong “essentially combines the first three
elements” of the HCQIA. 102 The Court’s analysis here mirrors that regarding the
standard for professional review actions taken in the furtherance of quality health care. 103
Accordingly, the Court will not reweigh matters that have been thoroughly discussed. For
the reasons stated above, the Court holds that no reasonable jury could conclude that
Sternberg has demonstrated by a preponderance of the evidence that the Defendants did
101 42 U.S.C. § 11112(a)(4).
102 Onel, 2003 WL 22533616, at *6 (quoting Rogers v. Columbia/HCA Cent. Louisiana, Inc., 971 F. Supp
229, 237 (W.D. La. 1997)).
103 Id. See also Sugarbaker, 190 F.3d at 916; Brader, 167 F.3d at 843.
49
not act in the reasonable belief that the precautionary suspension was warranted by the
facts known after a reasonable effort to obtain the facts.
The Court recognizes that, by design, the standards and presumptions for HCQIA
immunity are weighted in favor of those hospitals and physicians that engage in the peer
review process. Undoubtedly, the HCQIA has the potential to reach unjust results.104
Yet, the analysis in Poliner v. Texas Health Systems on this issue is directly on point:
It bears emphasizing that this does not mean that hospitals and peer review
committees that comply with the HCQIA’s requirements are free to violate the
applicable bylaws and state law. The HCQIA does not gainsay the potential for
abuse of the peer review process. To the contrary, Congress limited the reach of
immunity to money damages. The doors to the courts remain open to doctors
who are subjected to unjustified or malicious peer review, and they may seek
appropriate injunctive and declaratory relief in response to such treatment. The
immunity from money damages may work harsh outcomes in certain
circumstances, but that results from Congress’ decision that the system-wide
benefit of robust peer review in rooting out incompetent physicians, protecting
patients, and preventing malpractice outweighs those occasional harsh results; that
giving physicians access to the courts to assure procedural protections while
denying a remedy of money damages strikes the balance of remedies essential to
Congress’ objective of vigorous peer review. 105
Although it is clear that the HCQIA is potentially unforgiving to doctors, such is
not the case here. Considering the record presented, the Court is satisfied that this matter
is precisely the type of case that Congress intended to be adjudicated under HCQIA
immunity standards. Moreover, balancing all of the evidence indicating that Sternberg
was a disruptive doctor with the potential to cause imminent harm to patients, the Court
104 See Yann H.H. van Geertruyden, The Fox Guarding The Henhouse: How The Health Care Quality
Improvement Act of 1986 And State Peer Review Protection Statutes Have Helped Protect Bad Faith Peer
Review In The Medical Community, 18 J. Contemp. Heath L. & Pol’y 239 (Winter 2001).
105 Poliner, 537 F.3d at 381.
50
will not substitute its judgment “for that of health care professionals and of the governing
bodies of hospitals in an area within their expertise.” 106
In sum, the Court finds that Sternberg has failed to produce any evidence from
which a reasonable jury could conclude that he has overcome, by a preponderance of the
evidence, the presumption of compliance with the four prongs of the HCQIA. Immunity,
pursuant to the statute, therefore applies to this matter.
The HCQIA immunizes “(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” from all damages claims which arise out of the peer review
process. 107 HCQIA immunity applies not only to individual physicians, but it also is
extended to hospitals and corporate entities.108 As a result, the Court concludes that
Nanticoke Hospital, Werner, and the other fourteen named individual Defendants who
were members of the MEC receive immunity under the HCQIA in this case.
Moreover, all of Sternberg’s claims for damages are precluded by HCQIA
immunity. 109 Sternberg’s claims include tortuous interference with business relations,
negligence, breach of contract, breach of implied covenant of good faith and fair dealing,
intentional infliction of emotional distress, defamation, and vicarious liability. All arise
106 Bryan, 33 F.3d at 1337.
107 42 U.S.C. §11111(a)(1).
108 See 42 U.S.C. § 11151(4)(A)(i), (11); Bakare, 469 F. Supp 2d at 291; Matthews, 883 F.Supp at 1025-
1026.
109 See Lipson, 790 A.2d at 1272 fn. 14 (“In this case, however, immunity provided by the HCQIA would
blunt all of plaintiffs’ claims. The relief sought is limited to money damages; plaintiffs do not seek
reinstatement or other equitable relief in their pleadings.”).
51
out of the peer review process on the premise that he was improperly suspended under
the HCQIA. The Court has concluded that this premise was unfounded. Since Sternberg
claims no other remedy other than monetary damages in this case, the Court grants the
Defendants’ motion for summary judgment on HCQIA immunity grounds.
8. The Individual Defendants are Immune from Suit under Delaware’s Peer
Review Statute
A. Delaware’s Medical Peer Review Statute
The Defendants have also argued that Delaware’s Medical Peer Review Statute
provides a separate basis for immunity independent of the HCQIA analysis. Like the
HCQIA, Delaware’s Medical Peer Review Statute was crafted to foster the peer review
process and improve the quality of care in our state by conferring immunity upon the
good-faith actions of peer reviewers. 110 As a result, the Medical Peer Review Statute
maintains that hospital employees or committees:
[W]hose function is the review of medical records, medical care and physicians’
work … are immune from claim, suit liability, damages or any other recourse,
civil or criminal, arising from any act, omission, proceeding, decision or
determination undertaken or performed, or from recommendation made, so long
as the person acted in good faith and without gross or wanton negligence in
carrying out the responsibilities, authority, duties, powers, and privileges of the
offices conferred by law upon them, with good faith being presumed until proven
otherwise, and gross or wanton negligence required to be shown by the
complainant. 111
110 See Quinn v. Kent General Hosp., Inc., 617 F. Supp. 1226, 1234 (D. Del. 1985).
111 24 Del. C. § 1768(a).
52
As the Defendants acknowledge, the Medical Peer Review Statute applies only to Werner
and the fourteen individual doctors and MEC members who were named as Defendants
in this action. The state statute does not apply to Nanticoke as a hospital entity. 112
The immunity offered by Delaware’s Medical Peer Review Statute is broader than
that provided by the HCQIA. Thus, unlike its federal counterpart, Delaware’s legislation
extends beyond claims for damages. It should be reiterated, however, that “good faith” is
presumed in the Medical Peer Review Statute. 113 In addition, the complainant in
litigation surrounding the Medical Peer Review Statute has the burden of establishing bad
faith or gross or wanton negligence. 114
B. Sternberg’s Reliance upon Lipson is Unfounded and does not Bar Immunity
under the Medical Peer Review Act
In an attempt to defeat summary judgment under the Medical Peer Review
Statute, Sternberg repeats the same arguments he employed with the HCQIA. For
example, Sternberg argues that Lipson requires peer review committees to follow hospital
By-laws in order to receive immunity under Delaware’s Medical Peer Review Statute.
Sternberg contends that Werner and the members of the MEC violated Nanticoke’s By-
laws by ignoring the imminent danger provision or even referencing hospital policy on
visitors in the operating room before issuing and continuing his suspension. Thus,
Sternberg reasons that Lipson bars immunity under the Medical Peer Review Statute due
to these alleged violations of the By-laws.
112 Id. See also Dworkin v. St. Francis Hosp., 517 A.2d 302, 303 (Del. Super. 1986).
113 See 24 Del. C. § 1768(a).
114 Id.
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The Court once again declines to accept Sternberg’s analysis of Lipson as being
controlling in the present matter. First, Sternberg simply has not raised an issue of
material fact indicating that the Defendants have failed to follow Nanticoke’s By-laws.
Because this point has been addressed above in the context of the HCQIA, it need not be
repeated here. 115 However, the Court adopts the reasoning employed there for purposes
of Delaware’s Medical Peer Review Statute.
Moreover, the Court emphasizes that the holding in Lipson is not germane for
purposes of Delaware’s Medical Peer Review Statute in circumstances, like the present
case, where a formal peer review process was utilized. It bears repeating that the
defendant in Lipson was a private medical practice group. 116 In the context of the
Medical Peer Review Statute, the Lipson Court reasoned that the private medical practice
could engage in protected peer review activity even though prior case law was silent on
the issue. 117 Yet, Lipson made it clear that immunity pursuant to the Medical Peer
Review Statute was available to that defendant “to the extent it acted in accordance with
the Act’s provisions.” 118
In holding that the Lipson defendant was not entitled to immunity under
Delaware’s Medical Peer Review Statute, the Lipson Court found that no evidence had
been supplied to suggest that the defendant medical practice group “even considered,
115 The Court recognizes that Sternberg endeavors to establish a fact question for the first time here by
observing that a number of the individual Defendants testified that they did not review hospital policy on
visitors in the operating room. That some of the Defendants did not formally review these guidelines in
connection with Sternberg’s suspension is immaterial. The simple fact of the matter is that Sternberg
brought the reporter into the operating room under what can reasonable be inferred as false pretenses. The
Court is satisfied that an examination of hospital policy in this regard was therefore not necessary.
116 Lipson, 790 A.2d at 1265.
117 Id. at 1275.
118 Id.
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much less actively enforced, professional standards” by which the plaintiff doctor’s
conduct was examined to support the suspension at issue there. 119 As a result, the Lipson
Court observed that the defendant’s conduct was inconsistent with “the Legislature’s goal
of creating an environment for the establishment and enforcement of professional
standards.” 120
Furthermore, while troubled that the private medical practice did not employ
professional standards, the Lipson Court deemed the defendant’s failure to conduct its
peer review process in accordance with established procedures to be fatal. 121 There, the
defendant considered the doctor’s suspension on an “ad hoc basis at a regularly scheduled
meeting of its board of directors. No process attached to the ‘peer review’ aspects of the
meeting, e.g. there was no formal notice of the meeting or a meeting agenda provided to
[the plaintiff], no explanation of the process to be followed by the board when
considering [plaintiff’s] behavior, no explanation of possible corrective action to be taken
by the board, and no explanation of [plaintiff’s] rights during the process.” 122
The Lipson Court reasoned that that the Medical Peer Review Statute’s mandate
of good faith and fairness was not preserved since the private medical group extended
literally no peer review process.123 The court concluded that the private medical practice
was removed from the umbrella of immunity because Delaware’s legislation “provides
no protection for members of a medical practice (or other health care entity) who take
119 Id. at 1276.
120 Id. (citing Danklef v. Wilmington Med. Ctr., 429 A.2d 509, 513 (Del. Super. 1981)).
121 Lipson, 790 A.2d at 1276.
122 Id. at 1277.
123 Id.
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steps to discipline a rogue care provider outside of a clearly defined peer review process,
even if the ultimate goals are the enforcement of professional standards and patient
safety.” 124
As has already been discussed, the peer review processes employed by the private
medical practice there in comparison to the Defendants actions are so dissimilar as to
make Lipson distinguishable. Sternberg does not argue that that the Defendants’ issuance
and continuation of the suspension were proffered in the absence of a defined peer review
process. If he had, the totality of the peer review process used by the Defendants
including Nanticoke’s By-laws, the peer review committees defined by the By-laws, and
the imminent danger standard referenced in the By-laws would quickly end the argument.
Yet, Sternberg argues that the decision-making process of Werner and his fellow
Defendants on the MEC was so tainted as to remove them from the umbrella of immunity
under Delaware’s Medical Peer Review Statute. Even if the steps taken to discipline
Sternberg were flawed, an argument the Court has repeatedly rejected, Delaware’s
Medical Peer Review Statute provides immunity to individuals “who act in good faith
without gross or wanton negligence in carrying out the responsibilities, authorities,
duties, powers, and privileges of the offices conferred by law upon them.” 125 Nothing in
Delaware’s statute requires the process employed by peer reviewers to be perfect or even
correct. Instead, the process utilized must be made in good faith and without gross or
wanton negligence.
124 Id. at 1276.
125 24 Del C. § 1768 (a).
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As a result, the Court concludes that Lipson is the appropriate authority when the
process employed by peer reviewers is so insufficient that it offends the Medical Peer
Review Statute’s mandate of good faith and fairness. Since Sternberg has not raised a
material issue of fact in this regard, the Court finds that Lipson’s holding does not remove
the Defendants from consideration under Delaware’s Medical Peer Review Statute.
C. Sternberg has not Reed the Presumption that the Defendants Acted in Good
Faith and Without Gross or Wanton Negligence Under Delaware’s Medical Peer
Review Act.
The Court finds that the examination of the Medical Peer Review Statute focuses
on whether the Defendants acted in good faith and without gross or wanton negligence.
Under the statute, immunity is available for hospital employees who act acted in “good
faith and without gross or wanton negligence in carrying out the responsibilities,
authority, duties, powers, and privileges of the offices conferred by law upon them.” 126
The Defendants are statutorily presumed to have acted in good faith until proven
otherwise. 127
At the outset, the Court finds that the precautionary suspension provision in
Nanticoke’s Credentials Policy represents “duly adopted rules and regulations”
envisioned by the Medical Peer Review Statute in this case. 128 Moreover, the Court
concludes that the issuance of his suspension by Werner and the continuation of the
suspension by the MEC relate to the “authority, duties, powers, and privileges” of the
Medical Peer Review Statute. Thus, the key question here is whether Werner and the
126 24 Del. C. § 1768(a).
127 Id.
128 Nanticoke Memorial Hospital Staff Credentials Policy § 6.C.1.
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members of the MEC acted in good faith when the suspension was issued and continued,
respectively.
The Court concludes that Sternberg cannot rebut the presumption that the
Defendants’ acted in good faith throughout the process leading up to the MEC’s
continuation of the suspension. Nor does Sternberg show that Werner and his named
Defendant colleagues acted with gross or wanton negligence in this case. Rather,
Sternberg contends that the Defendants had a history of animosity towards him,
presumably stemming from his advocacy for patient care at the hospital. As a result,
according to Sternberg, the Defendants continually sought to terminate his employment at
the hospital and did so as soon as he was no longer needed to satisfy the hospital’s
requirements for orthopedic emergency call.
Beyond these unsubstantiated allegations, Sternberg fails to produce evidence
sufficient to negate the presumption that the Defendants acted in good faith under
Delaware’s Medical Peer Review Statute. While Sternberg offers an affidavit suggesting
that some of the Defendants wanted to “get rid” of him, he fails to provide the context in
which the statement was uttered. The affidavit is nothing short of conclusory and cannot
defeat summary judgment.
The Court also fails to be convinced that the Defendants acted in bad faith or with
gross or wanton negligence considering the totality of the circumstances surrounding
Sternberg’s suspension. The Court observes, for instance, that the Defendants moved the
original date for the hearing on the revocation of his suspension to accommodate
Sternberg’s need for counsel. The Defendants appear to have been fully prepared to
present their case for a revocation of his privileges at the hearing until it was postponed
58
due to his precautionary suspension. No evidence suggests that the Defendants even
attempted to skirt due process in their dealings with Sternberg as one might assume had
they been motivated by gross or wanton negligence or bad faith.
In addition, the record provides evidence that directly contradicts Sternberg’s
claim that the Defendants acted in bad faith. On multiple occasions, the Defendants
reached out to Sternberg, offering to characterize the precautionary suspension as a leave
of absence in an ostensible effort to provide him with an opportunity to receive help
related to his behavior at the workplace. The Defendants negotiated with him, and they
ultimately agreed to consider the suspension to be a leave of absence – thus salvaging
Sternberg’s career by not reporting him to the federal database. Thereafter, Sternberg
remained a practicing physician at Nanticoke hospital for over one year before he chose
to resign.
None of the above suggests that the Defendants were out to “get rid of him” as
Sternberg would have the Court believe. Nor can Sternberg rebut the presumption of
good faith in the Medical Peer Review Statute. Thus, the individual named Defendants
are entitled to summary judgment as a matter of law on the basis of Delaware’s Medical
Peer Review Statute.
9. Immunity under the Credentials Policy
The Defendants next claim that that they are entitled to absolute immunity
pursuant to Nanticoke’s Credentials Policy. The Defendants argue that when he applied
for reappointment in August of 2006 and agreed to abide by the Medical Staff By-laws,
including Nanticoke’s Credentials Policy, Sternberg expressly consented to release the
59
Defendants from any and all liability. Accordingly, Nanticoke’s Credentials Policy states
the following:
2.C.2. Grant of Immunity and Authorization to Obtain/Release Information:
a) Immunity:
To the fullest extent permitted by law, the individual releases from any
and all liability, extends absolute immunity to, and agrees not to sue the
Hospital, any member of the Medical Staff, their authorized
representatives, and appropriate third parties for any matter
appointment, reappointment, clinical privileges, or
relating to
qualifications for the same. This
the individual’s
includes any actions, recommendations,
reports, statements,
communications, or disclosures involving the
individual which are made, taken, or received by the Hospital, its
authorized agents, or appropriate third parties. 129
The Defendants do not argue that the Credentials Policy constitutes an enforceable
contract immunizing them from liability. Rather, the Defendants suggest that Sternberg
waived all claims when he applied for reappointment to Nanticoke in 2006 and
acquiesced to its Credentials Policy. 130
Sternberg urges the Court to consider the Credentials Policy to be a contract,
contending that the Bylaws are contractually unconscionable and void as a matter of law.
Sternberg further argues that the Defendants breached this contract as a result of the
alleged improper suspension of Sternberg thereby excusing him from performance.
Having reviewed the considerable record in this matter, it is clear that both parties
have focused their efforts primarily on immunity under the HCQIA and, to a lesser
extent, under Delaware’s Medical Peer Review Statute. Consequently, the record was
not fully developed on the contractually based claims. Because the Defendants’ have
129 Nanticoke Memorial Hospital Staff Credentials Policy § 2.C.2.(a).
130 See, e.g., Deming v. Jackson-Madison County Gen. Hosp., 553 F. Supp. 2d 914, 936 (W.D. Tenn. 2008).
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been found to be immune from liability under the HCQIA and Delaware’s Medical Peer
Review Statute, the Court need not rule on the immunity provision in Nanticoke’s
Credentials Policy.
10. Attorney’s Fees
A. The HCQIA
While the HCQIA offers immunity in certain prescribed situations from a suit for
damages, the statute offers yet another potential benefit – the payment of reasonable
attorney’s fees. Sternberg initially filed a motion for summary judgment arguing that the
attorney’s fee provision was inapplicable here because the Defendants could not establish
that they qualified for HCQIA immunity protection. The Defendants, in turn, argue that
they meet statutory prerequisites for attorney’s fees. More specifically, the Defendants
contend that Sternberg’s claims are without foundation and were brought in bad faith.
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The HCQIA provides that:
In any suit brought against a defendant, to the extent that a defendant has
met the standards set forth in 42 U.S.C. § 11112(a) and the defendant
substantially prevails, the court shall, at the conclusion of the
award to a substantially prevailing party defending any
action,
of the suit attributable to such claim, including a
such claim the cost
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. 131
In order to recover reasonable attorney’s fees, the Defendants must establish:
was
The determination of whether the party’s conduct was frivolous or without foundation is
4) that the plaintiff’s claim, or the plaintiff’s conduct during the litigation,
frivolous, unreasonable, and without foundation or in bad faith. 132
1) that they are among the persons covered by 42 U.S.C. § 11111;
2) that the standards set in 42 U.S.C. § 11112(a) were followed;
3) that they substantially prevailed; and
a question committed to the sound discretion of the trial court. 133
The Court readily concludes that the Defendants meet the first three elements
necessary for attorney’s fees under the HCQIA. However, even if the first three elements
are met, the Defendants must establish that Sternberg’s claims are frivolous,
unreasonable, and without foundation or in bad faith. Sternberg disavows any suggestion
that his claims are frivolous, unreasonable, without foundation or brought in bad faith as
required by the forth prong for HCQIA attorneys fees.
It is clear from a review of the case law that a finding that the Defendants are
immune from suit pursuant to the HCQIA does not automatically result in the award of
131 42 U.S.C. § 11113.
132 Matthews, 87 F.3d at 637.
133 Johnson v. Nyack Hosp., 964 F.2d 116, 123 (2d Cir. 1992).
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attorney’s fees. 134 In this regard, the Court will “resist the understandable temptation to
engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately
prevail, his action must have been unreasonable or without foundation.” 135
While evaluating the attorney’s fees matter, the Court again observes that all of
Sternberg’s claims are grounded on the argument that the precautionary suspension was
improper since he was not – and could not have been as a matter of law – an imminent
danger to the health of any individual. In carrying out this responsibility, the Court gives
considerable weight to the assertion that Sternberg’s claims were brought in bad faith,
particularly considering that the parties’ leave of absence agreement kept Sternberg’s
name out of the federal HCQIA database.
Although a precautionary suspension surely does not advance a physician’s
career, one wonders why this Court should not consider Sternberg’s claims to be rooted
in bad faith. After all, Nanticoke made apparently good faith overtures on multiple
occasions to remove the precautionary suspension and replace it with a leave of absence.
Sternberg and the Defendants negotiated and reached an agreement whereby the
precautionary suspension disappeared. Sternberg thereby received the benefit of not
being reported to the federal database and having had his career as a practicing physician
severely prejudiced as a result. After satisfying the condition that he complete a remedial
course on his behavior, he returned to work at Nanticoke for over one year without
incident before resigning and initiating the process that led to this action. Sternberg
134 See, e.g., Matthews, 87 F.3d at 642.
135 Id.
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appears to have “had his cake” when he was not reported to the federal database. By
pursuing this litigation, the Court assumes that he wants to “eat it, too.”
In addition, Sternberg’s arguments about the imminent danger standard in the
emergency provision of the HCQIA were less than persuasive. Even though some of
Sternberg’s colleagues indicated that he was not considered to be an imminent danger at
the time he was suspended, there nevertheless was substantial authority indicating that
the Defendants had reasonable grounds to suspend Sternberg as an imminent danger due
his disruptive behavior. 136 To stress as a matter of law in briefings and at oral argument
that the imminent danger standard could only be satisfied when a doctor had substance
abuse issues, deliberately harmed patients, or was incompetent is without foundation and
is unreasonable in the eyes of this Court in light of the abundance of case law to the
contrary.
Furthermore, the Court recognizes that the purpose of providing for attorney’s
fees in the HCQIA is to “discourage the kind of litigation that is so baseless that the cost
of litigating would discourage people from serving on peer review panels.” 137 Using that
concept as a guiding factor in this analysis, the Court is struck here by Sternberg’s
acknowledgement of the core facts that led to his precautionary suspension. 138 He does
not dispute that Nanticoke had informed him that he was not to engage in politicking at
the hospital. He does not dispute that a newspaper reporter was brought into the
operating room despite this prohibition. And, the Court notes he does not dispute that
136 See Sugarbaker, 190 F.3d 905; Jenkins, 2004 WL 3393380; Straznicky, 2009 WL 1905298; Onel, 2003
WL 22533616. The Court appreciates that Sternberg was first made aware of Straznicky at oral argument.
Nevertheless, the point remains the same.
137 Gordon v. Lewistown Hosp., 2006 WL 2816493, at *4 (M.D. Pa. Sept. 28, 2006).
138See id.
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hospital personnel removed the newspaper reporter from the operating room. In the
alternative, Sternberg attempts to place the blame on Nanticoke for the newspaper
reporter’s visit to the operating room when it was entirely reasonable for hospital officials
to consider an observation for “education” to be related to medical training. Ultimately,
the Court fails to be convinced that an award of attorney’s fees to the Defendants in light
of these facts is contrary to the HCQIA’s mission to discourage baseless litigation and to
promote meaningful peer review.
As a result, the Court holds that the Defendants have established that they are
among the persons covered by the HCQIA, that the standards set forth in the HCQIA
were followed, and that the Defendants substantially prevailed in this matter. Moreover,
the Court finds that Sternberg’s claims were unreasonable and brought in bad faith. In
light of the Court’s discretionary authority, the Defendants are entitled to reasonable
attorney’s fees for the costs associated with defending this matter. Sternberg’s motion for
summary judgment is therefore denied.
Counsel for the Defendants and for Sternberg shall file affidavits and
documentation regarding fees earned in this matter within twenty days from the date of
entry of this order. As the Court advised counsel earlier in this case, when this Court
considers an award of attorney’s fees, the Court prefers to know the attorney’s expenses
of both sides. Plaintiff’s counsel shall have the opportunity to respond within fifteen
days upon receipt of Defendants’ documentation on the amount of attorney’s fees
incurred. The Court will award a reasonable amount of attorney’s fees to the Defendants
after the parties have supplemented the record on this issue.
B. The Credentials Policy
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Finally, Sternberg seeks summary judgment on the Defendants’ claim that they
are entitled to attorney’s fees under the Credentials Policy. In this regard, Nanticoke’s
Credentials Policy states:
If, notwithstanding the provision in this section, an individual institutes
legal action and does not prevail, her or she will reimburse the hospital
and any member of the Medical Staff named in the action for all
incurred in defending such legal action, including
costs
fees. 139
reasonable attorney’s
Sternberg contends that the Defendants are not entitled to attorney’s fees under
the Credentials Policy because the By-laws represent a contract of adhesion.
Consequently, he claims that that provision awarding attorney’s fees is unconscionable
and void as a matter of law. Sternberg further argues that he is excused from
performance under the contract of adhesion as a result of the Defendants’ material breach
related to the improper issuance and continuation of his suspension.
Sternberg is an experienced physician and is not an unsophisticated individual.
There is no overreaching or improper leverage shown here for the Court to conclude that
the provision is so one-sided as to be unconscionable as a matter of law. 140
The Court thus denies Sternberg’s motion for summary judgment regarding
attorney’s fees under the Credentials Policy. Since attorney’s fees have been awarded
pursuant to the HCQIA, however, the Court declines to render an opinion as to the
propriety of an award for attorney’s fees to the Defendants under the Credentials Policy.
CONCLUSION
139 Nanticoke Memorial Hospital Staff Credentials Policy § 2.C.2(e).
140 See Tretheway v. Basement Waterproofing Nationwide, Inc., 1994 WL 680072, at *3 (Del. Super. Oct.
19, 1994) (The Superior Court found unconscionability as a matter of law when,“at the time the contract
was made, the questionable provision amounted to one party taking unfair advantage of another.”).
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For the reasons set forth above, Defendants’ motion for summary judgment is
GRANTED on the basis of HCQIA immunity and, for those Defendants who were
individually named, is GRANTED as to Delaware’s Medical Peer Review Statute.
Plaintiff’s motion for summary judgment on attorney’s fees under the HCQIA and the
Credentials Policy is DENIED. The Court will establish the amount of attorney’s fees
owed to the Defendants pursuant to the HCQIA at a later date.
IT IS SO ORDERED.
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