Chudacoff v. Univ. Med. Center of Southern Nevada
| Decision Date | 14 April 2009 |
| Docket Number | No. 2:08-CV-863-ECR-RJJ.,2:08-CV-863-ECR-RJJ. |
| Citation | 609 F.Supp.2d 1163 |
| Parties | Richard M. CHUDACOFF, M.D., Plaintiff, v. UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA, a political subdivision of Clark County, State of Nevada, County Commissioners Bruce L. Woodbury, Tom Collins, Chip Maxfield, Lawrence Weekly, Chris Giunchigliani, Susan Brager, and Rory Reid, Kathleen Silver, an individual, The Medical and Dental Staff of The University Medical Center of Southern Nevada, an independent subdivision of University Medical Center of Southern Nevada, John Ellerton, M.D., an individual, Marvin J. Bernstein, M.D., an individual, Dale Carrison, M.D., an individual, Donald Roberts, M.D., an individual, DOE Defendants 1 through X, inclusive; and Roe Corporations, A through Z, inclusive, Defendants. |
| Court | U.S. District Court — District of Nevada |
Jacob L. Hafter, Law Office of Jacob Hafter & Associates, Las Vegas, NV, for Plaintiff.
Lynn M. Hansen, Jimmerson Hansen, P.C., Kim Irene Mandelbaum, Michelle R. Schwarz, Mandelbaum, Schwarz, Ellerton & McBride, Marie Ellerton, Cotkin, Collins & Ginsburg, Las Vegas, NV, for Defendants.
AMENDED ORDER
This case arises out the suspension of a physician's medical staff privileges with University Medical Center of Southern Nevada. Two motions are presently pending before the Court.
First is the plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (# 85), which was filed on January 9, 2009. The Court denied (# 87) the motion (# 85) to the extent that it sought a TRO and stated that it would treat the motion (# 85) solely as one for preliminary injunction. Some, but not all, of the defendants filed an Opposition (# 92) to the motion (# 85) on January 26, 2009. The plaintiff filed a Reply (# 99) on January 30, 2009.
Next is the plaintiff's Motion for Partial Summary Judgment (#86), which the plaintiff also filed on January 9, 2009. Again, some of the defendants filed an Opposition (# 93) to the motion on January 26, 2009. This time, however, the remaining defendants filed a joinder (# 94) to the opposition (# 93). The plaintiff filed a Reply (# 97) on January 28, 2009.
On April 8, 2009, we granted the motion for partial summary judgment and denied the motion for preliminary injunction. We now issue this amended order, which replaces our order of April 8, 2009, to explain our decision further.
Plaintiff Dr. Richard Chudacoff (or "Chudacoff"), a physician who specializes in the practice of obstetrics and gynecology, had medical privileges to work at several local hospitals in the Las Vegas area, including University Medical Center of Southern Nevada (or "UMC"). In 2007, Chudacoff was appointed to the position of Assistant Professor with the University of Nevada School of Medicine, and on December 20, 2007, Chudacoff was granted staff privileges at UMC in the obstetrics and gynecology department. Chudacoff worked at UMC from December 20, 2007, through May 28, 2008.
Part of Chudacoff's work involved overseeing resident physicians. Chudacoff thought that the residents' skills were substantially below the skill level of other residents that he had supervised previously in his career at a different medical school. On April 16, 2008, Chudacoff wrote an email to Paul G. Stumpf, M.D., Professor and Chair of Obstetrics and Gynecology at the University of Nevada School of Medicine, regarding his concerns over the skills of the residents. Chudacoff made several recommendations for improving the quality of care that the residents provided.
On May 28, 2008, Chudacoff received a letter from Defendant John Ellerton, M.D., Chief of Staff at UMC, in which Ellerton told Chudacoff that the Medical Executive Committee (or "MEC") had "suspended, altered or modified his medical staff privileges." In addition, the MEC ordered Chudacoff to undergo drug testing and physical and mental examinations. Chudacoff alleges that this suspension came from out of the blue; he had no knowledge that the MEC was considering altering or changing his privileges.
The May 28 letter advised Chudacoff that he was entitled to a Fair Hearing however, he was not advised of the allegations presented against him. On June 2, 2008, Chudacoff's insurance counsel requested a Fair Hearing. On June 10, 2008, Chudacoff received a letter from University of Nevada-Reno President Milton Glick informing Chudacoff that his employment with the University of Nevada School of Medicine had been terminated as a result of the suspension of his clinical privileges.
On June 16, 2008, certain defendants filed a report with the National Practitioner Data Bank (or "NPDB") stating that Chudacoff's privileges had been suspended indefinitely for substandard or inadequate care and substandard or inadequate skill level. The report to the National Practitioner Data Bank cites four cases where Chudacoff caused "serious operative complications during gynecological surgery," one incident where Chudacoff failed to respond to a medical emergency, and numerous complaints of disruptive behavior. On June 18 and 20, 2008, other health care facilities notified Chudacoff that his privileges had been denied or revoked because of the information listed on the NPDB. On June 23, 2008, Chudacoff received the medical record numbers for the patients involved in the NPDB report.
Having received no response to his request for a Fair Hearing, on July 2, 2008, Chudacoff filed the original complaint in this case. On July 18, 2008, Chudacoff was informed that his Fair Hearing was scheduled for September 11, 2008. Initial discovery motions and notices of depositions were filed by the parties throughout the summer.
While the litigation progressed, the Fair Hearing was held on September 11, 2008, in front of a selected Fair Hearing Committee. Prior to the hearing, on September 5, 2008, the MEC disclosed its list of witnesses for the Fair Hearing, but Chudacoff received no information regarding the nature of the testimony that would be elicited from those witnesses. Hence, Chudacoff had to prepare his case for the Fair Hearing without having knowledge of the specific evidence to be presented against him. Additionally, though Chudacoff's attorney was present at the September 11 hearing, his attorney was not allowed to present evidence, question witnesses, or participate in the hearing in any substantive way.
Aside from addressing the incidents of "substandard care," the Fair Hearing Committee seemed concerned with a discrepancy in Chudacoff's original application to join the UMC medical staff; Chudacoff reported never having had an adverse action taken against him for his practice of medicine. In fact, he had a negative report during his time in the Navy, but that report was later revised by the District Court for the District of Columbia. Chudacoff had not been informed that this topic would be addressed at the hearing.
On October 1, 2008, the Fair Hearing Committee set forth their findings and made recommendations regarding the MEC's sanctions. The Fair Hearing Committee disagreed with the suspension of Chudacoff's privileges and the requirement of direct supervision by another physician. Instead, the committee recommended peer review of Chudacoff's practice. The Fair Hearing Committee agreed with three of the MEC's sanctions: (1) placing Chudacoff on a "zero tolerance policy for disruptive behavior"; (2) requiring Chudacoff to discuss with the Nevada Health Professionals Foundation the necessity of undergoing physical and psychological evaluation; and (3) requiring Chudacoff to undergo drug testing. The Fair Hearing Committee also noted that the "concern about Dr. Chudacoff's falsifying his medical staff application should be specifically addressed to the MEC with appropriate action."
The Fair Hearing Committee's recommendations were forwarded to the MEC for consideration at its next hearing, which was held on October 28, 2008. At that hearing, which Chudacoff attended, the MEC reviewed and considered the Fair Hearing Committee's recommendations. The purpose of the hearing was to address the Fair Hearing Committee's recommendations related to Chudacoff's alleged incidents of substandard care. Nevertheless, at least one of the members of the MEC focused almost exclusively on Chudacoff's alleged falsification of his medical staff application.
On November 7, 2008, ten days after the MEC's hearing, the MEC notified Chudacoff of its decision with two letters. In the first letter, the MEC adopted in part the findings of the Fair Hearing Committee with respect to requiring peer review of Chudacoff's practice. In addition, the MEC issued a second letter suspending Chudacoff's privileges pending revocation for "material misstatements of fact on [Chudacoff's] medical staff application for privileges." Each letter now represents a separate action taken by the MEC.
Pursuant to the provisions of the Fair Hearing Plan, Chudacoff had thirty days — or until December 7, 2008 — to appeal his suspension relating to the misstatements on the application to a Fair Hearing Committee, as that decision had not yet been presented to the Fair Hearing process. Once the MEC suspended Chudacoff's privileges, the MEC had the obligation to report the suspension to the NPDB within fifteen days, or by November 22, 2008. With respect to this potential report, the Court issued a preliminary injunction that prevented the defendants from reporting Chudacoff to the NPDB.
Chudacoff requested a Fair Hearing as to the suspension related to the alleged misstatements of fact on his medical staff application of his privileges. On November 25, 2008, at 9:10 a.m., Chudacoff's attorney was informed that the MEC would meet at 12:30 p.m. that day to discuss the discrepancy in Chudacoff's application. Chudacoff presented his case; less than one hour later the MEC informed him that the MEC would proceed with the suspension of his...
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