Setliff v. Memorial Hosp. of Sheridan County

• Decision Date: 01 July 1988
• Docket Number: No. 85-2819,85-2819
• Citation: 850 F.2d 1384
• Parties: Reuben SETLIFF, M.D., Plaintiff/Appellant, v. MEMORIAL HOSPITAL OF SHERIDAN COUNTY, John Owen Yale, Barry Wohl, W.G. Saunders, and John Does 1 through 10, Defendants/Appellees, and D. Scott Nickerson and William Williams, Defendants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1384

850 F.2d 1384

Reuben SETLIFF, M.D., Plaintiff/Appellant, v. MEMORIAL HOSPITAL OF SHERIDAN COUNTY, John Owen Yale, Barry

Wohl, W.G. Saunders, and John Does 1 through 10,

Defendants/Appellees,

and

D. Scott Nickerson and William Williams, Defendants.

No. 85-2819.

United States Court of Appeals, Tenth Circuit.

July 1, 1988.

Patrick E. Hacker, Cheyenne, Wyo., for plaintiff/appellant Reuben Setliff, M.D.

Peter K. Michael, Lathrop & Uchner, Cheyenne, Wyo., Carl L. Lathrop, Lathrop & Uchner, Cheyenne, Wyo., with him on the briefs, for defendants/appellees Memorial Hosp. of Sheridan County, Yale, Wohl, and Saunders.

James L. Appelgate, Thomas G. Gorman and Glenn Parker, Hirst & Appelgate, Cheyenne, Wyo. with him on the briefs, for defendant/appellee Wohl.

W. Thomas Sullins, II, Brown & Drew, Casper, Wyo., on the briefs, for Saunders, for defendants/appellees Memorial Hosp. of Sheridan County, Yale, Wohl, and Saunders.

Before MOORE and ANDERSON, Circuit Judges, and PHILLIPS, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

This case arises out of an investigation conducted by the executive committee of defendant Memorial Hospital of Sheridan County ("Sheridan Hospital") with respect to the medical practice of plaintiff/appellant Dr. Reuben Setliff. Setliff filed suit against Sheridan Hospital, a government institution, the Hospital's administrator, certain individual doctors and John Does 1 through 10, alleging that the investigation (his privileges were not terminated) violated his First and Fourteenth Amendment rights because it was in retaliation for statements he had made, was punishment for his personality and philosophy, and because it effectively denied him, without due process, his property right in his hospital privileges and his liberty interest in the practice of his profession. The United States District Court for the District of Wyoming granted defendants' motions for summary judgment and dismissed Setliff's pendent state law claims alleging negligence, malicious prosecution, abuse of process and defamation. Setliff appeals and we affirm the grant of summary judgment to defendants and the dismissal of his claims.

BACKGROUND

Setliff is an otolaryngologist (a doctor specializing in ear, nose and throat problems) with staff privileges at Sheridan Hospital. Sheridan Hospital is a governmental entity created and controlled by Sheridan County.

The investigation of Setliff's medical practice, which is the genesis of this lawsuit, was prompted by a complaint from Dr. D. Scott Nickerson at the regularly scheduled meeting on May 17, 1983 of the executive committee of Sheridan Hospital ("1983 Executive Committee"). ¹ Nickerson's complaint concerned Setliff's treatment of his (Nickerson's) son. The 1983 "It should come as no surprise that such a review, whether fruitful or not, carries inherent risk of damaging me professionally and/or personally.

                Executive Committee, consisting of seven doctors, including defendant Dr. W.G. Saunders, and chaired by Dr. David Townes, "unanimously elected to take specific actions to review ... [Setliff's] medical practice within this hospital," Ex. 1 to Townes Affidavit, R. Vol. I, Doc. 54, because of the Nickerson complaint and because other members of the Executive Committee raised similar complaints about Setliff. 2   The 1983 Executive Committee selected June 1, 1983 for a special meeting to determine how to proceed with the investigation and Townes wrote a letter to Setliff inviting him to attend the June 1 meeting.  Setliff responded with a letter dated June 1, in which he stated, in part
                

....

"I have been advised and my position is that I cannot and should not attend a meeting simply to be informed that major decisions have been made based on unknown specifics from unknown sources and concerning which I am allowed neither information nor courtesy of response.

"I will, however, be most pleased to attend any meeting called for the purpose of discussing any and all aspects of my hospital practice provided that I have the courtesy of receiving specific information as to what will be discussed and that I receive assurance that I will be allowed an informed response."

Townes Affidavit, R. Vol. I, Doc. 54 Ex. 2. By letter dated June 20, 1983, the 1983 Executive Committee informed Setliff of the following resolution passed by the Committee at the June 1 meeting:

"In regard to Dr. Reuben Setliff, based on an accumulated series of questions, complaints, and disruptions over the eight years of Dr. Setliff's appointment to this hospital staff, the Executive Committee deems it appropriate to exam [sic] Dr. Setliff's hospital practice.

"That examination shall include, but not be limited to:

"1. An examination of appropriateness of medical and surgical care, with the assistance of qualified external reviewers.

"2. An examination of Dr. Setliff's compliance with the Hospital Bylaws, Rules and Regulations (which he has agreed to abide by) to be conducted by a local committee."

Townes Affidavit, R. Vol. I, Doc. 54 Ex. 3. The letter invited Setliff to meet with the Committee. Townes' Affidavit and deposition state that the Committee invited Setliff on at least three occasions to appear before the Committee to discuss the investigation and he declined to appear. Townes Affidavit, R. Vol. I, Doc. 54; Deposition of Townes, R. Vol. II, Doc. 75 Ex. 2. Setliff explains his failure to appear by alleging that he "volunteered to attend any meeting 'called for the purpose of discussing any and all aspects of my hospital practice providing that I have the courtesy of receiving assurances that I will be allowed an informed response.' " Complaint p 12, R. Vol. I, Doc. 1.

The Executive Committee conducted its investigation from early September 1983 until November 1983. It never met with Setliff. It also never investigated the specific complaints made by Dickerson or other Committee members, which prompted the investigation of Setliff. The Committee then determined that the "qualified external reviewers" specified in the June 1 resolution should be otolaryngologists, and it informed the governing body of Sheridan Hospital, the Board of Trustees, of the existence of the investigation and obtained authorization from the Board to pay for the services of three otolaryngologists. Apparently because of scheduling conflicts The reviewers identified a number of problems with Setliff's practice. With regard to suspension laryngoscopy, the reviewers found no fault with Setliff's actual performance of the procedure. They did, however, state that, in general, the time between performance of the surgery and dictation of the "operative note" was too long. The reviewers also found:

                the three independent reviewers were unable to set a meeting to review Setliff's charts until April 28, 1984. 3   That meeting was canceled because of a major snowstorm.  One of the outside reviewers, who was unable to reschedule a meeting, then had to be replaced by Dr. Raymond Woods, a professor at the University of Colorado Medical Center.  The reviewers finally met, interviewed Setliff and reviewed medical charts concerning three surgical procedures performed by Setliff--suspension laryngoscopy, microantrostomy, and tympanoplasty. 4   They issued their report on July 10, 1984
                

"Review of the histories and physicians [sic] on these patients show that the description of the Present Illness was sometimes very brief and inadequate. The history and physical examination reports ... were very stereotyped.... Postoperative notes and progress notes were poor, very difficult to read, and very sketchy. On many patients there were no postoperative notes written at all.... On [two] patients, [with carcinoma of the larynx] the description of the tumor was not felt to be adequate. These patients had major surgery on the larynx and there were very sketchy progress notes in the postoperative period on these patients. There was no mention in the chart of any Staging on these patients done preoperatively."

Ex. 4 to Townes Affidavit, R. Vol. I, Doc. 54. With regard to Setliff's performance of microantrostomy, the reviewers expressed concern over the number of times Setliff performed this procedure on young children. ⁵ The reviewers also questioned Setliff's performance of multiple procedures on the same patient, stating that it would be "unusual" to find a patient requiring the performance of several procedures at one time. The reviewers found no significant problem with Setliff's performance of the third procedure under scrutiny, tympanoplasty.

Finally, from a "general review of other charts, as well as the hospital record on Dr. Setliff" the reviewers expressed the following concerns:

"There were many many complaints of late record completion, late dictation or delayed dictation of surgeries. On many of the charts there appeared to be inadequate progress notes in the postoperative period or no progress notes at all. The histories and physicals were very brief and there appeared to be a great deal of similarity between all the patients. There were complaints of the patient not being seen in the hospital before surgery, and the patient not being seen in the hospital after surgery. There were reports of abuse of hospital personnel, particularly in surgery. There were complaints of Dr. Setliff being late to surgery many times by an hour or more, or that he would leave the surgical suite for long periods of time and come back without having told the operating room personnel where he was going or giving an estimate of the time of his return.

"These things are not consistent with the best medical care of patients."

Id. One of the reviewers sent to Townes a supplemental letter stating in part:

"I am unable to find anyone in the Denver community who performs any operation remotely resembling the microantroantrostomy procedure which Dr. Setliff is performing on children. The volume of procedures, at least the number which I...