Brader v. Allegheny General Hosp., 98-3223

Citation167 F.3d 832
Decision Date12 February 1999
Docket NumberNo. 98-3223,98-3223
PartiesAlan H. BRADER, Appellant, v. ALLEGHENY GENERAL HOSPITAL. *
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Marshall J. Tindall (argued), Mary Kate Coleman, Davies, McFarland and Carroll, P.C., Pittsburgh, PA, for appellant.

Michael J. Lynch (argued), David L. McClenahan, Paul K. Stockman, Kirkpatrick & Lockhart, Pittsburgh, PA, for appellees.

Before: BECKER, Chief Judge, STAPLETON, Circuit Judge, and HARRIS, District Judge. **

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal by plaintiff Dr. Alan Brader ("Brader") from the grant of summary judgment in favor of defendant Allegheny General Hospital ("AGH" or "Hospital") on Brader's suit alleging breach of contract in connection with several hospital privileges and promotion decisions. The appeal requires us to determine whether AGH met the requirements for immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. ("HCQIA"), or, in the alternative, under the Hospital's internal Bylaws. The district court held that AGH was immune from suit under AGH's Bylaws.

The HCQIA, which was designed to encourage physicians to engage in reviews of their peers, permits immunity to attach to such review activities provided that the reviews meet certain procedural requirements. See 42 U.S.C. § 11112(a). A doctor challenging the review process must prove, by a preponderance of the evidence, that the review process was unreasonable. See id. We conclude that Brader has failed to produce sufficient evidence for a reasonable fact finder to conclude that AGH acted unreasonably. Immunity therefore attaches to AGH. Thus, we affirm without reaching the question whether AGH is entitled to immunity under the Bylaws.

I. Facts
A. Brader's Problems in the Operating Room and with Hospital Personnel

Brader is a surgeon who joined AGH's provisional medical staff on July 1, 1988. Under AGH's Bylaws, which govern the rights and responsibilities of both permanent and provisional medical staff members, a doctor initially serves as a provisional staff member and requests advancement after one year at that level. See Bylaws Art. III § 1.A. Dr. Diamond, the director of the Division of General Surgery, was Brader's direct supervisor. Dr. Magovern was Chairman of the Department of Surgery and Diamond's supervisor.

Soon after his arrival at AGH, Brader performed an abdominal aortic aneurysm ("AAA") repair on a patient. During the course of the operation, the patient allegedly sustained a number of visceral injuries and died on the operating table. Diamond, who observed the surgery at its tail end, concluded that the patient died not from the aneurysm but as a result of bleeding from the injuries. He also believed that Brader had delegated too much responsibility to a resident during the operation and that Brader had failed to resume control fast enough when the operation began to go badly.

On May 29, 1989, Brader operated on a patient who had sustained a stab wound to the chest. Brader argued with Dr. Demmy, the cardiothoracic surgical resident on call, over the proper surgical approach to the patient. Brader overruled the resident's approach--even though the attending cardiothoracic surgeon had approved Demmy's plan--and proceeded to operate using a median sternotomy. However, it became clear during the surgery that this approach was not adequate, and Brader's incision had to be extended significantly, resulting in a longer patient recovery. Magovern felt that Brader's approach was a serious departure from the way AGH handled stab wounds to the chest, and that the wound could have been handled much more judiciously using Demmy's plan. Brader's explanation (in his testimony) was that he was the physician responsible for the patient, and that he was "not about to relinquish the care of this critically ill patient at that point to a cardiothoracic surgery fellow" whom he had not met before.

This incident led to the first of several meetings between Diamond and Magovern about Brader's personal and professional behavior. Magovern indicated that he wished to fire Brader based on the incident with Demmy, but Diamond defended Brader's action. Diamond encouraged Magovern to talk to Brader. Magovern did so, but according to both parties, the meeting was "a disaster." Brader testified that Magovern was "out to get him from the minute one," whereas Magovern felt that Brader's tone was rude, offensive, and insubordinate. Magovern emerged with the impression that Brader would not accept AGH's triage protocol, under which patients with chest wounds were to be treated by the cardiothoracic service.

The record portrays Brader as a disruptive force in the hospital. Not only did he cause friction between the cardiothoracic unit and the trauma service, but he also told orthopedic trauma surgeons that they were not using the proper procedures for certain traumas. As a result, Diamond had to intercede to "calm the waters." Brader allegedly made derogatory statements to nurses, but at a meeting organized by Diamond to address the issue, Brader refused to act in a conciliatory manner. Diamond testified, "It really was incredibly unpleasant, time consuming, and literally every day there was a new nightmare of some kind" that he had to solve.

On October 27, 1989, Brader operated on another stab wound patient but did not notify the cardiothoracic service that the patient had a chest wound. Brader's decision again created controversy, since it violated hospital protocol. On January 7, 1990, during an elective AAA repair, Brader was unable to control the bleeding, and was forced to sacrifice the patient's left kidney. The patient's spleen was lacerated as well. The patient died a few hours later. By virtue of these events, AGH decided on February 27, 1990, to extend Brader's provisional Medical Staff membership for a year rather than promote him to "attending" status. 1

B. The Internal Review

In the spring of 1990, several AGH anaesthesiologists approached Magovern about the amount of time taken and quantity of blood used in AAA procedures. In response, Magovern asked the Quality Assurance Department ("QAD") to compile data for each AAA procedure performed. The QAD broke out its results for each physician. Magovern testified that "[w]hat was striking was that of the 5 people who had done the [AAA] cases, one surgeon accounted for 50 percent of the mortality in the ruptured abdominal cases, whereas the other 4 people ... [had approximately] 10 percent" each. That one surgeon was Brader. Magovern felt that it was "a difference enough within [Brader's] group that it should be looked into," and asked Diamond to do so.

Diamond reviewed and compared the AAA procedures performed by Brader and the other surgeons. He concluded that Brader's operative record reflected deficiencies in skill, as well as "unconscionable" judgment. Diamond was less concerned with Brader's mortality rate than with the injuries and complications that occurred during his surgeries, and the fact that he gave residents too much responsibility. On May 25, 1990, Diamond and AGH Vice President Virginia Opipare met with Brader about these findings. Brader did not have advance notice of the meeting. The trio agreed that the Hospital would seek an outside reviewer to look over Brader's AAA procedures, and that Brader would temporarily, and voluntarily, stop performing AAA repairs.

Three days later, Brader sent Opipare a note stating that the "impromptu nature of this meeting was most unfair to me." Brader also indicated that he had spent the weekend reviewing his AAA experience and results. According to his calculations, his mortality rate stood at 52.9%. His letter also stated that he had reviewed 165 AAA cases from AGH and calculated the overall mortality rate as 52.7%; that in 1988 AGH had two full time attending surgeons with mortality rates over 70%; and that "a prompt reversal of [their] decision to suspend [his] abdominal aortic aneurysm privileges [was] necessary and clearly warranted."

C. Suspension of Brader's AAA Privileges

After some difficulty finding an outside reviewer, AGH found a New Orleans surgeon named Dr. John Ochsner to review Brader's file. Brader agreed to Ochsner's selection. The Hospital sent Ochsner the AAA Quality Assurance study, individual case lists for general surgeons, case summaries prepared by Diamond, and pertinent patient records. Brader also submitted his own summary and interpretation of his AAA procedures. Brader requested that he be available to answer any questions the reviewer might have and that he be able to meet with the reviewer before any decision was made, although it is not clear whether Diamond and Opipare agreed to this request.

In a letter dated September 27, 1990, Ochsner submitted to AGH a summary of his findings. In it, he stated:

Of greatest concern ... was the fact that of the twelve ruptured abdominal aortic aneurysms there were a tremendous number of complications.... The mortality rates for such cases can be quite high. However, the thing that concerned us most was that there were many complications and many maneuvers in what we would consider poor surgical judgement.... In general, intra-abdominal visceral injuries are quite rare during aortic surgery but there were fifteen different intra-abdominal visceral injuries in the twenty patients.... In conclusion, at our institution if a staff surgeon had this sort of record on his vascular operations, we would insist that he be supervised by more experienced surgeons for a period of time until his technique and judgement could be ascertained to be adequate or not.

On October 12, Magovern and Opipare met with Brader to discuss the Ochsner report. Magovern requested that Brader continue to refrain from performing AAA repairs without supervision. Brader refused, stating that he would perform any such procedures that came in while ...

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