Cohlmia v. St. John Med. Ctr.
| Decision Date | 26 October 2012 |
| Docket Number | Case No. 05–CV–384–GKF–TLW. |
| Parties | George S. COHLMIA, Jr., M.D. and Cardiovascular Surgical Specialists Corp., Plaintiffs, v. ST. JOHN MEDICAL CENTER, William Howard Allred, M.D. and William Burnett, M.D., Defendants. |
| Court | U.S. District Court — Northern District of Oklahoma |
OPINION TEXT STARTS HERE
Brad Roberson, Dawn Michelle Goeres, Raymond Thompson Cooper, Pignato Cooper Kolker & Roberson PC, Oklahoma City, OK, Daniel Brent Graves, Graves McClain PLLC, Michael L. Barkett, Barkett Law Firm PLLC, Mary Morrison Barcus, Graves McClain PLLC, Tulsa, OK, for Plaintiffs.
James W. Connor, Jr., Richards & Connor, Jason Lee Glass, Savage Baum Glass & Hart PLLC, William Hayden Spitler, IV, McDonald McCann & Metcalf LLP, Tulsa, OK, Sara R. Lincoln, Womble Carlyle Sandridge & Rice PLLC, Charlotte, NC, for Defendants.
Before the court is Magistrate Judge T. Lane Wilson's Report and Recommendation [Dkt. # 536] on the Motion for Attorney Fees [Dkt. # 458] filed by defendants St. John Medical Center, William Howard Allred, M.D. and William Burnett, M.D. (collectively, “St. John”). Magistrate Judge Wilson concluded the claims of plaintiffs George S. Cohlmia, Jr., M.D. and Cardiovascular Surgical Specialists Corp. (collectively, “Cohlmia”) were “unreasonable and without foundation at the onset of the case, as discovery developed, and ultimately through the granting of judgment on the merits.” [Dkt. # 458 at 25]. He recommended St. John be awarded $732,668.00 in attorney fees as the prevailing party in this action pursuant to the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. § 11113. Cohlmia objected to the Report and Recommendation. [Dkt. # 539].
The district court must conduct a de novo review of the Magistrate Judge's Report and Recommendation. 28 U.S.C. § 636(b)(1); Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir.1996) ( ). The court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).
Following St. John's suspension of his medical privileges, Cohlmia sued St. John and some 18 other defendants, alleging a number of federal and state antitrust and business tort claims. Ultimately, Cohlmia settled with all defendants except St. John. St. John asserted, inter alia, an affirmative defense that it was immune under federal law from damages pursuant to the HCQIA, 42 U.S.C. § 11101, et seq. St. John also moved for summary judgment on the antitrust and tort claims, arguing they failed for lack of evidentiary support. On February 17, 2009, the court granted St. John's motion for summary judgment on Cohlmia's tortious interference with contract claim, finding plaintiff had presented no evidence of damages. [Dkt. 340, 341 at 44–45]. On July 31, 2009, the court granted St. John's motions for summary judgment on Cohlmia's remaining claims; and on August 3, 2009, it entered judgment in favor of St. John and against Cohlmia. [Dkt. 446, 448].
On August 31, 2009, St. John filed its Motion for Attorney Fees totaling $973,601.25.1 The motion was extensively briefed and the Magistrate Judge conducted several hearings. In a 31–page Report and Recommendation, he reviewed at length the factual background and procedural history of the case, discussed applicable law and scrutinized the fee request and underlying documentation. He determined that St. John was entitled to recover attorney fees under 42 U.S.C. § 11113, but recommended the following reductions:
• $13,000.00 for travel time charged at full hourly rates;
• $20,750.00 for fees for St. John's unsuccessful challenge to a motion to compel filed by plaintiff;
• $8,563.00 for paralegal time spent on coding;
• $2,700.00 (from a total of $4,700.00) for preparation of a joint defense agreement;
• a total of 10 percent ($97,360.13) for inadequately documented billings for in-house and co-counsel communications and for activities not traditionally associated with legal work;
• $2,400.00 for work by summer clerks; and
• another 10 percent ($97,360.13) to eliminate fees not attributed to principal timekeepers and block billing;
[Dkt. # 536 at 27–30]. After these reductions, the Magistrate Judge recommended a total fee award of $732.558.00. [ Id. at 30]. He recommended St. John's request for leave to file supplemental attorney fees in its pursuit of an attorney fee award be denied.
In his objection, Cohlmia argues attorney fees are not recoverable under HCQIA because his claims were not frivolous, unreasonable, without foundation or brought in bad faith. He also objected to the attorney fee amount recommended by the Magistrate Judge. [Dkt. # 539].
Cohlmia is a surgeon specializing in cardiovascular, thoracic, vascular, and endovascular surgery. His closely held corporation, Cardiovascular Surgical Specialists Corp. (“CVSS”) provides cardiovascular, thoracic, vascular and endovascular surgical care. [# 376, Defendants' Statement of Material Facts, ¶ 1; # 422, Plaintiff's Response to Defendants' Statement, ¶ 1].
St. John is a general acute care hospital in Tulsa. [# 376, Defendants' Statement of Material Facts, ¶ 5; # 422, Plaintiff's Response, ¶ 5].
William Burnett, M.D., who is board certified in internal medicine and cardiovascular diseases, is a former President of SJMC's Medical Staff. Howard Allred, M.D., who specializes in colon and rectal surgery, is the VP of Medical Affairs at SJMC. [Dkt. # 376, Defendants' Statement of Material Facts, ¶ 13; Dkt. # 422, Plaintiff's Response, ¶ 13].
Cohlmia founded CVSS in 1994. Throughout the period relevant to this litigation Cohlmia, through CVSS, provided a variety of surgical services, including cardiovascular surgery, thoracic surgery, vascular surgery and endovascular surgery. [Dkt. # 376, Defendants' Statement of Material Facts, ¶¶ 14, 17; Dkt. # 422, Plaintiff's Response, ¶¶ 14, 17.]
In excess of 50% of Cohlmia's patient population is Native American. [Dkt. # 376, Defendant's Statement of Material Facts, ¶ 18; Dkt. # 422, Plaintiff's Response, ¶ 18].
Before 2003, Cohlmia performed most of his surgeries (in some years 70–80%) at Hillcrest Hospital. The remainder were performed at St. John, Southcrest and Saint Francis hospitals. [Dkt. # 376, Defendants' Statement of Material Facts, ¶ 19; Dkt. # 422, Plaintiff's Response, ¶ 19].
Until July of 2003, Cohlmia had active medical staff privileges at Hillcrest, St. John, Saint Francis, Southcrest and Tulsa Regional Medical Center. [Dkt. # 376, Defendants' Statement of Material Facts, ¶ 20; # 422, Plaintiffs' Response, ¶ 20].
On June 6, 2003, Cohlmia performed thoracotomy surgeries at St. John on two patients diagnosed with lung cancer. During surgery on the first patient, Cohlmia removed one lung and several ribs and collapsed the patient's chest cavity. During surgery on the second patient, Cohlmia attempted to remove a tumor in the lung that had invaded the chest wall. [# 364–1, Exs. 1, 3]. The second patient died seven days later, after a second surgery to repair an air leak in the lung that formed as a complication of the initial surgery. [Dkt. # 364–1, Exs. 1, 4]. The patients are referred to as Patient “H” and Patient “P” respectively.
On June 7, 2003, a St. John nurse advised Dr. Allred, Vice–President of Medical Affairs that there might be a serious problem regarding surgery Dr. Cohlmia had performed the previous day. [Dkt. # 364–2, Ex. 5, Allred Dep. at 6.]. On the same day, Allred reviewed two patients' charts and “became concerned” because he noticed that in his opinion there was inadequate workup of the patients before the operations. [ Id. at 8–9]. Allred continued to review the patients' records and monitor their conditions for several days. [ Id. at 9].
During this time, Allred talked with several St. John physicians expressing concern regarding the care rendered by Cohlmia to these two patients. [ Id.] According to the St. John Medical Center Medical Staff Bylaws, Allred, as VP of Medical Affairs, had the authority to, on his own initiative, summarily suspend any member of the medical staff whenever necessary to “protect the life of any patient(s) or reduce the substantial likelihood of immediate injury or damage to the health and safety of any patient. [Dkt. # 364–2, Ex. 6] Allred testified he wanted to ensure that the review was “fair to Dr. Cohlmia, [that] as much information as possible was collected, assimilated, discussed, and a reasonable fair conclusion was reached.” [Dkt. # 364–2, Ex. 5 at 14]. He spoke to a pathologist, a thoracic surgeon, a medical oncologist and a pulmonologist about the incidents. [ Id. at 12, 14–15].
Allred then spoke to Dr. John Forrest, President of the St. John Medical Staff, and David Pynn, President of St. John, advising them of a potential problem. [ Id. at 14–15]. At a meeting of the Medical Staff Executive Officers on July 7, 2003, attended by Pynn, Allred, Forrest, Burnett and William Morgan, St. John General Counsel, a consensus was reached that Cohlmia's privileges to practice at SJMC should be suspended because Cohlmia's treatment of Patient P and Patient H demonstrated “significant error in clinical judgment” and Cohlmia's continued practice at SJMC posed the potential for harm to patients. [Dkt. # 364–2, Ex. 10, Burnett Dep. at 74–77].
On July 8, 2003, Pynn sent a letter to Cohlmia advising that his privileges had been summarily suspended. [Dkt. # 364–3, Ex. 11]. On the same date, the hospital cut off Cohlmia's access to the hospital, and Cohlmia requested, in writing, that a hearing be scheduled as quickly as...
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