Tshibaka v. Sernulka — Dec. 2016 (Summary)

HCQIA

Tshibaka v. Sernulka
No. 15-1839 (4th Cir. Dec. 13, 2016)

The United States Court of Appeals for the Fourth Circuit affirmed in part and vacated in part a physician’s claim that a hospital revoked his hospital privileges because of racial discrimination.

While the details regarding the specific behaviors the physician engaged in were redacted in the court opinion, the physician signed an agreement with the hospital after a 2008 incident involving a nurse in which he agreed to undergo a mental health evaluation and begin receiving treatment.  Also included in the agreement was a “last chance” provision.  In 2013, after a patient care technician accused the physician of sexual harassment the CEO determined that the physician had violated the “last chance” provision of their agreement and instituted a summary suspension and a merits hearing.  Ultimately, both the hearing panel and the appellate review board adjudged the physician responsible for committing two sexual assaults and the board terminated the physician’s hospital privileges.

The court determined that the physician failed to allege racial discrimination because he could not identify other, similarly-situated physicians who were treated differently from him solely on the basis of race.  The court also determined that the hospital was immune from the physician’s state law claims under the Health Care Quality Improvement Act (“HCQIA”). The physician was unable to rebut the presumption that the professional review activity was in the furtherance of improving health care quality, after providing adequate notice and hearing to the physician, therefore, the hospital qualified for immunity under the statute.

The court did find, however, that the lower court’s dismissal of the physician’s defamation claim against the patient care technician was unwarranted as she did not qualify for the absolute immunity that the state common law extends to protect witnesses in judicial or quasi-judicial proceedings.  Rather, while the court noted that she may be entitled to the qualified privilege extended to those involved in peer review proceedings, further proceedings were necessary by the trial court to make that determination.