Chudacoff v. Univ. Med. Ctr. of Southern Nev.

• Decision Date: 09 June 2011
• Docket Number: Nos. 09–17558,09–17652.,s. 09–17558
• Parties: Richard CHUDACOFF, M.D., Plaintiff–Appellant–Cross–Appellee,v.UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA, a political subdivision of Clark County, State of Nevada; Bruce L. Woodbury, Tom Collins, Chip Maxfield, Lawrence Weekly, Chris Giunchigliani, Susan Brager, and Rory Reid, Clark County Commissioners, ex-officio, the Board of Trustees of University Medical Center of Southern Nevada; Kathleen Silver, an individual; the Medical and Dental Staff of the 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, Defendants–Appellees–Cross–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

649 F.3d 1143

32 IER Cases 627

2011 Daily Journal D.A.R. 8424

Richard CHUDACOFF, M.D., Plaintiff–Appellant–Cross–Appellee,

v.UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA, a political subdivision of Clark County, State of Nevada; Bruce L. Woodbury, Tom Collins, Chip Maxfield, Lawrence Weekly, Chris Giunchigliani, Susan Brager, and Rory Reid, Clark County Commissioners, ex-officio, the Board of Trustees of University Medical Center of Southern Nevada; Kathleen Silver, an individual; the Medical and Dental Staff of the 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, Defendants–Appellees–Cross–Appellants.

Nos. 09–17558

09–17652.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 9, 2010.Filed June 9, 2011.

Jacob Hafter and Michael Naethe, Law Office of Jacob Hafter & Associates, Las Vegas, NV, for the plaintiff-appellant/cross-appellee.Lynn M. Hansen, Jimmerson Hansen, Las Vegas, NV, for the defendants-appellees/cross-appellants.Kim Irene Mandelbaum and Robert McBride, Mandelbaum, Schwarz, Ellerton & McBride, Las Vegas, NV, for the defendants-appellees/cross-appellants.Appeal from the United States District Court for the District of Nevada, Edward C. Reed, Senior District Judge, Presiding. D.C. No. 2:08–cv–00863–ECR–RJJ.Before: STEPHEN REINHARDT, MICHAEL DALY HAWKINS, and N. RANDY SMITH, Circuit Judges.

OPINION

HAWKINS, Senior Circuit Judge:

Richard Chudacoff, M.D. (“Chudacoff”) appeals the grant of summary judgment (the “November Order”) in his civil rights action arising from the suspension of his medical staff privileges at the University Medical Center of Southern Nevada (“UMC”), a county hospital organized under the laws of Nevada, as well as the denial of his motion for leave to file a third amended complaint asserting claims under 42 U.S.C. § 1983.

This case is not about whether Chudacoff's UMC staff privileges were a protected property interest or whether he was denied adequate procedural protections when his privileges were suspended without notice or opportunity to be heard. See Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir.2003). These issues were resolved in Chudacoff's favor by an earlier decision of the district court (the “April Order”) and have not been appealed by defendants. Instead, this case asks us to determine only whom, if anyone, Chudacoff may sue under 42 U.S.C. § 1983 for his constitutional injury.

We answer this question by reversing as to the individually named doctor defendants who serve as voting members of UMC's physician credentialing committee and who therefore directly participated in the unlawful suspension of Chudacoff's staff privileges. The individual committee members may not be county employees, but their physician credentialing decisions on behalf of a county hospital constitute state action. Because Chudacoff has not shown that his due process injuries were the product of institutional policies, however, we affirm as to all other defendants.¹

BACKGROUND

I. The Defendants

UMC is a county hospital created by the Clark County Board of Commissioners and supported through public funds. See Nev.Rev.Stat. §§ 450.020–.060, 450.230–.390. Because the population of Clark County is greater than 400,000, the Clark County Commissioners constitute, ex officio, the UMC Board of Trustees (“the Board”), as required by Nevada law. See id. § 450.090. The Board has final approval authority over UMC's Bylaws. Chudacoff seeks to name all Clark County Commissioners as defendants in their ex officio capacity as the Board.

Staff privileges at UMC are initially granted, suspended, or otherwise modified by the Medical and Dental Staff of UMC (“Medical Staff”), a professional peer-review body created and delegated this authority by the UMC Bylaws. The Medical Staff acts through its governing arm, the Medical Executive Committee (“MEC”), also expressly created by the UMC Bylaws, whose membership includes, inter alia, the UMC Chief of Staff (at all relevant times defendant John Ellerton), the Vice Chief of Staff (defendant Dale Carrison), the Secretary (defendant Marvin Bernstein), and the chief of each department (including defendant Donald Roberts, Chief of the Department of Obstetrics and Gynecology). In addition, UMC's CEO (defendant Kathleen Silver) sits as a non-voting member of the MEC. The MEC's staff credentialing decisions are guided by the hospital Bylaws, Credentials Procedures Manual, and Fair Hearing Plan.

Like the hospital itself, the Medical Staff owes its existence to Nevada law, which requires UMC, as a county hospital, to “organize a staff of physicians composed of each regular practicing physician, podiatric physician and dentist in the county in which the hospital is located who requests staff membership and meets the standards set forth in the regulations prescribed by the board of hospital trustees.” Nev.Rev.Stat. § 450.440(1). Through the UMC Bylaws, the Board has delegated considerable administrative and oversight duties over the hospital and its physicians to the Medical Staff, though the Board retains final appellate review of the MEC's staff credentialing decisions as well as final policymaking authority.

II. Suspension of Chudacoff's Privileges

Chudacoff was appointed an Assistant Professor with the University of Nevada School of Medicine in 2007 and granted staff privileges at UMC in the ob/gyn department shortly thereafter. A few months after being granted staff privileges at UMC, Chudacoff received a May 28, 2008 letter from Ellerton informing him that at its monthly meeting the day before, the MEC had suspended Chudacoff's obstetrical privileges indefinitely, imposed a direct supervision requirement on his performance of surgeries, and ordered mandatory drug testing and physical and psychological evaluations. This disciplinary action was not a thirty-day “summary suspension,” (which can be immediately imposed pursuant to Article XI of the hospital Bylaws upon showing that a physician's conduct poses a substantial and imminent risk of danger to others), but rather a “routine administrative action,” which may be undertaken only upon satisfaction of specific procedural requirements, as laid forth in the hospital Bylaws, Credentialing Manual, and Fair Hearing Plan. The letter did not explain, as required by the Bylaws, the basis for the adverse actions. Chudacoff alleges he had no knowledge until he received this letter that the MEC was considering altering his privileges.

The letter also informed Chudacoff of his right to a fair hearing, pursuant to the hospital's Bylaws and Credentialing Manual. He requested one on June 2. However, before he finally received a response six weeks later, and well before he actually had an opportunity to be heard before a fair hearing committee, several significant events had already transpired: the University of Nevada had terminated his employment with the School of Medicine due to his suspension of clinical privileges; defendants had filed a report with the National Practitioners Data Bank ² (“NPDB”) stating that Chudacoff's privileges had been suspended indefinitely for “substandard or inadequate care” and “substandard or inadequate skill level;” and several other health care facilities had denied or revoked Chudacoff's privileges in turn.

The fair hearing committee ultimately disagreed with the MEC's suspension of Chudacoff's privileges based on the allegations of substandard care. At its October 28 monthly meeting, the MEC adopted the Fair Hearing Committee's recommendation to lift the suspension based on substandard care and instead required only peer review of Chudacoff's practice.

III. Procedural History

Chudacoff initiated this lawsuit on July 2, 2008 and later moved for partial summary judgment on two issues of law: (1) “whether the defendants violated his due process rights by suspending his hospital privileges and then reporting that suspension to the NPDB without notice or an opportunity to be heard”; and (2) “whether the defendants are entitled to immunity under the Health Care Quality Improvement Act (“HCQIA”).” See Chudacoff v. Univ. Med. Ctr. of S. Nev. (“ Chudacoff I ”), 609 F.Supp.2d 1163, 1171 (D.Nev.2009). The district court issued a partial summary judgment order in which it concluded that Chudacoff's due process rights were violated when defendants suspended his staff privileges before giving him any type of notice, and reported him to the NPDB before providing him with any opportunity to be heard. Id. at 1173–74. The court further held that defendants failed to comply with 42 U.S.C. § 11112(a) and therefore were not entitled to HCQIA immunity. Id. at 1176–77. The district court denied defendants' motion to reconsider, and defendants appealed the issue of HCQIA immunity only.

Shortly after the district court granted partial summary judgment on the due process issue, Chudacoff sought leave to file a Third Amended Complaint to insert a reference to 42 U.S.C. § 1983 in his first and second counts, which previously alleged only violations of the Fourteenth Amendment. In seeking leave to amend, Chudacoff acknowledged his Second Amended Complaint was not properly pled because “the Constitution and its Amendments do not, in and of themselves, create a private right of action.”

Defendants moved for summary judgment on all claims, including state law claims that are addressed in a separate memorandum disposition filed concurrently with this opinion. The district court then issued its final summary judgment order. It granted summary judgment to defendants on Chudacoff's federal due process claims on the basis of its finding that the physician defendants were not state actors and that the municipal defendants did not have a policy or practice of due process violations such as would allow municipal liability under Monell v. Dep't of Soc....