Bastidas v. Good Samaritan Hosp. LP
| Decision Date | 21 November 2016 |
| Docket Number | Case No. 13-cv-04388-SI |
| Parties | J. AUGUSTO BASTIDAS, Plaintiff, v. GOOD SAMARITAN HOSPITAL LP, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
This dispute arises out of a medical peer review following defendant Good Samaritan Hospital's suspension of plaintiff's surgical privileges. Plaintiff initially filed this suit alleging discrimination and disparate treatment based on race. After substantial motion practice and four amended complaints, plaintiff now alleges two claims of retaliation under 42 U.S.C. § 1981. Plaintiff claims that defendants retaliated against him for filing and prosecuting this lawsuit by: (1) unreasonably and intentionally delaying with finalizing and implementing plaintiff's surgical proctoring program; and (2) unreasonably and intentionally delaying an update to the National Practitioner Data Bank with details of plaintiff's limited suspension.
On November 4, 2016, the Court held a hearing on defendants' motion for summary judgment. After careful consideration of the papers submitted, for the reasons articulated in open court, the Court finds that there are genuine disputes of material fact as to plaintiff's retaliation claims against the hospital defendants. The Court further finds that the record contains no evidence of retaliatory acts by the individual defendants, Dr. Wilbur and Dr. Schwartz. The Court hereby DENIES defendants' motion as to the hospital entities and GRANTS the motion as to the individual defendants.
Plaintiff is a Colombian-born general surgeon sub-specializing in oncology surgery and advanced cancer treatments at Good Samaritan Hospital ("GSH"). Plaintiff began working at GSH in 2004. In 2009, plaintiff lost a patient shortly after performing a complicated surgical procedure, known as a "Whipple." GSH immediately suspended plaintiff's surgical privileges, which prompted GSH's filing of an "Adverse Action Report" with the National Practitioner Data Bank ("NPDB") explaining plaintiff's "indefinite," "summary or emergency" suspension. Decl. Bastidas, Ex. C, NPDB report (Dkt. No. 185-6). Plaintiff's suspension began a years-long peer review and administrative appeal process, finally completed in early 2013 when the GSH Board of Trustees issued its final decision. See Decl. Wong, Ex. 7, Board final action (Dkt. No. 174-4).
Pursuant to the Board's final decision, the GSH Medical Executive Committee ("MEC") presented plaintiff with a Focused Professional Practice Evaluation ("FPPE"), a surgical proctoring program through which plaintiff could eventually regain his full surgical privileges at GSH. Roughly two months later, on August 1, 2013, plaintiff responded by letter, stating his belief that the FPPE was more restrictive than required by the final Board decision. Id., Ex. 12, letter from plaintiff to Tilles (Dkt. No. 174-8). Plaintiff asked the GSH Chief of Staff to "review this issue and clarify" and stated that he was "happy to meet . . . to finalize a FPPE." Id. At this point, neither party progressed the issue for well over a year.
Plaintiff filed this lawsuit on September 20, 2013. Dkt. No. 1. On December 16, 2014, for the first time since filing the lawsuit, plaintiff renewed his requests for a revised FPPE and update to the NPDB. Decl. Bastidas ¶ 91, Ex. L, plaintiff email to GSH staff (Dkt. No. 186-8). Plaintiff stated that the GSH Medical Staff had "yet to respond to [his] request to initiate [his] FPPE." Id. Plaintiff requested a status update on the FPPE process and asked GSH to "submit an appropriate amendment ASAP" to the NPDB since he "remain[ed] listed as an 'incompetent' physician . . . and that item continue[d] to prevent [him] from obtaining privileges at any new institutions." Id. Having heard nothing, plaintiff followed up again on April 28, 2015 by certified letter to Dr. Blumenfeld, now acting as GSH Chief of Staff, and reiterated the same concerns about the FPPE and NPDB. Decl. Wong, Ex. 17, plaintiff letter to Blumenfeld (Dkt. No. 175-1). Again, plaintiffreceived no response.
Plaintiff noticed the depositions of the GSH Medical Staff on June 2, 2015, including as topics, "actions taken by the [MEC] with regard to the proctoring of Plaintiff," actions taken in response to plaintiff's August 1, 2013 letter objecting to the FPPE and his follow-up communications on December 16, 2014 and April 28, 2015, and actions related to updating the NPDB. Decl. Bastidas ¶ 94. One week later, Dr. Blumenfeld, GSH Chief of Staff, called plaintiff to let him know that the MEC was working on a proposed FPPE and that the two should meet to discuss NPDB reporting. See Decl. Bastidas ¶ 95 & Ex. N, email from plaintiff to Blumenfeld memorializing conversation (Dkt. No. 186-12). Over several weeks following the phone conversation, plaintiff and defendants exchanged letters and emails, eventually leading to an agreed FPPE. Decl. Bastidas ¶ 97; see also Decl. Wong, Exs. 19-21. Plaintiff signed the FPPE on August 26, 2015, which appointed Dr. Harris from UCSF as his proctor and included optional intra-operative observation at the election of the Chief of Staff. Decl. Wong, Ex. 28 (Dkt. No. 175-10).
Around the time that the parties executed plaintiff's FPPE, discussions also progressed regarding the NPDB update. On August 24, 2015, Dr. Blumenfeld sent plaintiff a letter about plaintiff's requested NPDB updates. Decl. Bastidas ¶ 99 & Ex. O, letter from Blumenfeld to plaintiff (Dkt. No. 186-14). The letter set forth agreed-upon language for an NPDB revision, describing plaintiff's suspension and proctoring program, and stated that the NPDB update would be filed the same week. Id. By the end of August 2015, the parties had signed plaintiff's proctoring program and agreed to the content of the NPDB revision. Despite the apparent agreement, the parties did not finalize either for several more months.
Mary Ann Rodriguez, now GSH's Director of Medical Staff Services, states that between late August and mid-December of 2015, she did not realize that filing the NPDB update was her responsibility. Decl. Rodriguez (Dkt. No. 173-6) ¶¶ 7-8.1 Rodriguez states that she could not findlog-in credentials for the data bank, so she called the NPDB and waited "a couple of weeks" for her log-in information. Id. ¶ 10. She then tried to submit the report, but the submission required a payment and she did not have access to a hospital credit card. Id. ¶¶ 11-12. Rodriguez filed plaintiff's "Revision to Action Report" with the NPDB on January 28, 2016, approximately five months after Dr. Blumenfeld told plaintiff it would be filed. Id. ¶ 12; Wong Decl., Ex. 35, Revision to Action Report (Dkt. No. 177-6).
After reaching an agreed FPPE in August 2015, the parties continued to experience delays with the implementation of plaintiff's proctoring. Over the next several months, plaintiff followed up with GSH administration regularly about submitting cases to his proctor. Plaintiff wrote directly to the Board on December 14, 2015 requesting a status update, stating that he had been waiting to have Dr. Harris review certain patients that plaintiff wanted to schedule for surgery. Decl. Bastidas, Ex. P, letter to Board (Dkt. No. 186-16).
While plaintiff sought to have his proctoring program fully implemented, plaintiff ran for election as Chair of GSH's Department of Surgery. On October 27, 2015, the MEC wrote plaintiff and informed him that because of the practice restrictions in place under plaintiff's suspension, plaintiff was not in "good standing" and therefore ineligible to run for Chair of Surgery under the Medical Staff Bylaws. Decl. Bastidas ¶ 122 & Ex. S, letter from Chief of Staff to plaintiff (Dkt. No. 187-4) at 1. The MEC removed plaintiff from the ballot. Plaintiff disputed the MEC's interpretation of the Bylaws. Decl. Bastidas ¶ 123; id., Ex. S, email from plaintiff to MEC members (Dkt. No. 187-4) at 2. On November 16, 2015, the MEC responded to plaintiff by letter. Decl. Bastidas ¶ 124 & Ex. T, letter from MEC to plaintiff (Dkt. No. 187-6). The MEC stated that after meeting on the issue, it had determined that the Bylaws were not clear about plaintiff's eligibility to run and that because of the ambiguity, it would send out new ballots including plaintiff's name. Id. The MEC noted, however, that in the course of reviewing the Bylaws, it had determined that members of medical staff committees must be in good standing, and that accordingly, plaintiff could no longer serve on the hospital's Cancer Care Committee. Id. Afterthe MEC added plaintiff's name to the new Chair of Surgery ballot, plaintiff's voting peers elected him as Chair. Decl. Bastidas ¶¶ 125-26, id. Exs. U, V, memo and new ballot for election, letter from MEC to plaintiff (Dkt. Nos. 187-8, 187-10). On December 21, 2015, the MEC wrote plaintiff again to explain that under the Bylaws, election results are subject to ratification by the MEC. Decl. Bastidas ¶ 127 & Ex. V, letter from MEC to plaintiff (Dkt. No. 187-10). The MEC stated that ratification required a majority vote and, after discussing the election in a closed session, plaintiff's election had narrowly fallen short of ratification; plaintiff "therefore [could not] serve in that position." Id.
Before, during, and after the election proceedings, GSH claims to have experienced significant delays in getting Dr. Harris, a UCSF doctor, the necessary temporary privileges to act as plaintiff's proctor at GSH. See Decl. Abrams (Dkt. No. 173-5) ¶¶ 7-12.2 GSH, UCSF, and Dr. Harris needed to negotiate and agree to a professional services contract for Dr. Harris's proctoring arrangement. See id. ¶¶ 8-9. Gregory Abrams, who oversaw this process, describes that it dragged out over many months from late 2015 to mid-2016, and involved extensive coordination between GSH, UCSF, GSH's parent company, the hospital's credentialing arm, and others. See id. ¶¶ 7-25; see also ...
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