Fobbs v. Holy Cross Health System Corp.
| Decision Date | 19 July 1994 |
| Docket Number | No. 92-15852,92-15852 |
| Citation | 29 F.3d 1439 |
| Parties | 65 Fair Empl.Prac.Cas. (BNA) 750, 1994-1 Trade Cases P 70,648 Denard M. FOBBS, M.D., Plaintiff-Appellant, v. HOLY CROSS HEALTH SYSTEM CORPORATION, a California corporation, doing business as Saint Agnes Hospital and Medical Center; Cynthia Bergmann, M.D.; James Cahill, M.D.; Jay Christensen, M.D.; Charles Gavin, M.D.; Seung Nam Kim; Robert Meltvedt, M.D.; Marshall Noel, M.D.; Morton Rosenstein, M.D.; Roydon Steinke, M.D.; Robert Wilson, M.D.; Larry E. Nix, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James F. Tritt, Tritt and Tritt, and Jacob M. Weisberg, Fresno, CA, for plaintiff-appellant.
David H. Bent, McCormick, Barstow, Sheppard, Wayte & Carruth, Fresno, CA, for defendants-appellees, Holy Cross Health System Corp., and Saint Agnes Medical Center.
J. Robert Liset, Musick, Peeler & Garrett, Los Angeles, CA, for Physician defendants.
Appeal from the United States District Court for the Eastern District of California.
Before: FLETCHER, FERGUSON, and TROTT, Circuit Judges.
Plaintiff Denard M. Fobbs, M.D. seeks judgment against defendant St. Agnes Hospital and Medical Center ("St. Agnes" or "hospital") and various individual physician defendants who were on the Medical Staff and served on various peer review committees at the hospital for the summary suspension of his staff privileges.
In 1987, Dr. Fobbs, an African American, was granted privileges by the hospital to perform intra-abdominal laser surgery as a member of the Department of Obstetrics-Gynecology/Perinatology. After the hospital summarily suspended these privileges on September 29, 1989, Dr. Fobbs filed a complaint against defendant Holy Cross Health Systems Corporation, its subsidiary Saint Agnes Hospital, and twenty-seven individual defendant physicians.
After a series of motions and amendments, Dr. Fobbs' second amended complaint consisted of various allegations involving civil rights and antitrust violations.
This appeal involves the following specific claims in that complaint: the first claim pursuant to the Sherman Antitrust Act, 15 U.S.C. Sec. 2; the second claim pursuant to 42 U.S.C. Sec. 1981; the third claim pursuant to Title VI of the Civil Rights Act, 42 U.S.C. Sec. 2000d, against Saint Agnes Hospital only; and the fourth claim pursuant to 42 U.S.C. Sec. 1985(3).
On August 20, 1990, the district court granted the physician defendants' motion to dismiss the Sec. 1985 claim and granted the hospital's motion to dismiss the Title VI claim.
On November 25, 1990, the court granted physician defendants' motion for partial summary judgment as to the Sec. 1981 claim on the basis that it was time-barred.
On March 17, 1992, the court granted summary judgment in favor of all defendants on the Sherman Antitrust Act claim, holding that they were immune from federal antitrust liability by virtue of the provisions of the Health Care Quality Improvement Act of 1986 ("HCQIA"), 42 U.S.C. Sec. 11101, et seq.
The district court has published its order granting defendants' motion for summary judgment on the Sherman Antitrust Act claim. Fobbs v. Holy Cross Health System Corp., et al., 789 F.Supp. 1054 (E.D.Cal.1992).
We affirm the district court's order with the following addition to its opinion, which affects section V.A.3. set forth on pages 1067 and 1068 relating to whether the summary monitoring restraints prior to any notice or hearing violated the HCQIA.
A review committee may immediately suspend or restrict clinical privileges "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." 42 U.S.C. Sec. 11112(c)(2). We agree that the summary restrictions of Dr. Fobbs' clinical privileges by means of the monitoring requirements meet the requirements of Sec. 11112(c)(2).
Dr. Fobbs was the only physician in the Central Valley of California at the time performing laser surgery in obstetrics cases. After he performed a few such surgeries, questions were raised by the defendants as to possible irregularities with respect to three cases. The Supervisory Committee at the hospital invited Dr. Fobbs to discuss these cases. As a result of this meeting, copies of the case charts were sent for analysis and review to Dr. Donald R. Ostergard, Professor of Obstetrics and Gynecology at the University of California, Irvine, who was a former teacher of Dr. Fobbs.
Dr. Ostergard submitted a response in which he concluded that there were difficulties relating to responsibilities of both Dr. Fobbs and hospital employees. In the first case, there was improper functioning of the laser equipment. In that case, Dr. Ostergard criticized the hospital nursing staff for failing to calibrate the laser equipment before the surgery and failing to notify Dr. Fobbs of the equipment malfunction. He also concluded, however, that Dr. Fobbs used poor judgment in leaving the laser patient under anesthesia to deliver another obstetrical patient. In the second case, he concluded that Dr. Fobbs performed an unnecessary dilatation and curettage. Regarding the third patient, Dr. Ostergard reported that there was a lack of judgment on Dr. Fobbs' part in performing vaporization of endometriosis. Finally, he reported that these patients did not have a written or dictated history and physical examination on their charts at the time of the laser procedures.
Shortly after Dr. Ostergard's report was received, Dr. Fobbs wrote to the hospital, setting forth a conversation he had with Dr. Ostergard and claiming that he had done no wrong. The Supervisory Committee recommended to the Medical Executive Committee ("MEC") that monitoring be imposed. The following monitoring restrictions were then summarily imposed:
(1) Plaintiff was to have a second opinion on every admission to St. Agnes Medical Center;
(2) This was to include a history and physical examination by the monitor;
(3) On any surgical procedures, the monitor was to be present during the operation;
(4) The follow-up care of the patient was to be shared with the monitor; and
(5) The monitors were to be members of the Ob-Gyn/Perinatology Supervisory Committee.
Dr. Fobbs contends that the statute requires that there be "imminent danger to the health of any individual" before there may be a summary restriction. However, the statute 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.
The record of the problems caused by Dr. Fobbs clearly supports the conclusion of the MEC that a summary restriction be taken to avoid imminent danger. Dr. Fobbs was not suspended, his practice was not limited, and his access to the hospital was not limited. The monitoring conditions were necessary in light of the past history of Dr. Fobbs and his laser surgery. The defendants had ample medical justification to take the steps. The district court correctly granted defendants HCQIA immunity with respect to the summary monitoring restrictions.
We address in more detail the three other claims of Dr. Fobbs' complaint as they are not included in the published opinion of the district court.
Dr. Fobbs alleges that defendants deprived him of his rights under 42 U.S.C. Sec. 1981, which confers upon "[a]ll persons ... the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens," in suspending his staff privilege without just cause or due process.
The MEC decided to summarily suspend Dr. Fobbs on August 26, 1987. Dr. Fobbs received notification on August 29, 1987. He did not file suit until September 29, 1988 over a year after receiving notification. Dr. Fobbs concedes that his Sec. 1981 claim is subject to California Code of Civil Procedure Sec. 340(3), California's one-year statute of limitations applicable to personal injury actions. He presents four theories, however, which he contends preserve his claim. We conclude that these theories are inadequate to save his claim.
Dr. Fobbs contends that he is not precluded from bringing suit on this claim because the statute did not begin to run until September 30, 1988, the date on which he contends defendants' improper action became final. In the alternative, he argues the statutory period began October 10, 1988, the date of defendants' letter allegedly formalizing his suspension and denying his request for fair hearing conditions, which he contends was the last manifestation of defendants' allegedly continuing violation of Sec. 1981.
"[A]lthough states' statutes of limitation apply [to Sec. 1981 claims], federal law governs when the claim accrues and the limitation period begins to run." Chung v. Pomona Valley Community Hosp., 667 F.2d 788, 791 (9th Cir.1982) (citing Cope v. Anderson, 331 U.S. 461, 464, 67 S.Ct. 1340, 1341-42, 91 L.Ed. 1602 (1947)).
This case is governed by Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), in which the Supreme Court rejected a claim similar to Dr. Fobbs'. In Ricks, plaintiff filed suit under Title VII and 42 U.S.C. Sec. 1981 against his employer, Delaware State College, after it denied him tenure. He then filed a grievance pursuant to internal administrative policy with the college Board of Trustees. Six months later, the Board notified Ricks that it denied his grievance.
Ricks contended that because he was granted a one-year "terminal" contract after being denied tenure, the applicable statute of limitation did not begin to run until the expiration of the contract. The Court rejected this argument, concluding that Ricks' claim accrued the date the tenure decision was made and defendants notified Ricks. Id....
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