Couch v. Board of Trustees of Memorial Hosp.
| Decision Date | 17 November 2009 |
| Docket Number | No. 08-8001.,08-8001. |
| Citation | 587 F.3d 1223 |
| Parties | Marvin W. COUCH, II, M.D., Plaintiff-Appellant, v. BOARD OF TRUSTEES OF the MEMORIAL HOSPITAL OF CARBON COUNTY; Patsy Carter; David Cesko, M.D.; Duane Abels, D.O.; Archie Kirsch, M.D.; Charles Young, M.D.; Kenneth Schulze, M.D.; Palur Sridharan, M.D.; V. Raja Chandrasekaran, M.D., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Elizabeth A. Phelan (Gregory R. Piché and Mark B. Wiletsky, with her on brief), of Holland & Hart LLP, Boulder, CO, for Appellant.
Janet Schroer (Monty Barnett, John Lebsack and James M. Meseck on brief), of White and Steele, P.C., Denver, CO, for Appellees.
Before TACHA, EBEL, and HARTZ, Circuit Judges.
Dr. Marvin Wayne Couch appeals from summary judgment entered in favor of defendants, Memorial Hospital of Carbon County ("MHCC"), a small rural hospital where he has staff privileges, the hospital's chief administrator, and six of the ten other physicians who have privileges at MHCC. Dr. Couch brought this action, pursuant to 42 U.S.C. § 1983, to remedy an alleged deprivation of his First Amendment right of free speech caused by a "campaign of retaliation" he allegedly had to endure as a result of speaking out about substance abuse at MHCC. The district court concluded that Dr. Couch's claims failed because he could not establish that the defendants actions would chill speech nor could he establish that the defendants' actions were substantially motivated by his speech. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM for the reasons that follow.
Dr. Marvin Wayne Couch, II, M.D., is a family doctor/obstetrician in Rawlins, Wyoming. A graduate of the University of Wyoming School of Medicine, Dr. Couch moved to the Rawlins area in 1997 when he was recruited to join MHCC as part of an effort to build the hospital's obstetrics practice. Soon after Dr. Couch joined MHCC, interpersonal conflicts began to develop between Dr. Couch and Dr. David Cesko, M.D., another family doctor and obstetrician who joined MHCC about the same time as Dr. Couch. Dr. Couch began to have conflicts with medical staff as well.1 Time, however, did not heal Dr. Couch's relationships with Dr. Cesko or hospital staff.
By the summer of 2001, Dr. Couch had begun to suspect that Dr. Cesko and other staff physicians at MHCC were using alcohol and illegal drugs. Dr. Couch shared his concerns with the hospital's chief executive, Patsy Carter, and after he found her unresponsive, reported these concerns to the Wyoming Board of Medicine ("WBM"), a state agency that governs licensing of medical doctors. To address these concerns, Dr. Couch also approached the hospital's Board of Trustees about changing the hospital's testing policy from a for-cause drug and alcohol testing policy to a random testing policy. The Board subsequently discussed a random testing policy over several monthly Board meetings in the winter and spring of 2002, but ultimately concluded not to implement any changes to the drug and alcohol testing policy. Dr. Couch, however, continued to raise concerns about substance abuse at MHCC, and even filed a request with the WBM, in November 2002, to drug test a fellow physician, Dr. Scott Thomas, and to investigate whether Dr. Thomas had mistreated patients as a result of a drug impairment. Dr. Couch also continued to advocate for random drug and alcohol testing, for instance, when he delivered a presentation to the Wyoming Healthcare Commission at a September 2003 meeting, endorsing "a policy for the random testing for drugs and alcohol for physicians and other health care providers." (Aplt.App. 1277, 1289.)
In 2006, Dr. Couch subsequently brought this action pursuant to 42 U.S.C. § 1983, alleging that the hospital and various individual defendants, who were on hospital committees, instituted a "campaign" of retaliation against him for his advocacy of a drug and alcohol testing, in violation of his First Amendment right to free speech. The alleged "campaign" of retaliation included his non-reappointment to a seat on the Medical Staff Performance Assessment and Improvement Committee; several hospital investigations into disruptive conduct by Dr. Couch; alleged patient mistreatment; billing and Medicare fraud; and the hospital's subsequent implementation of the corrective actions recommended by those investigations. We will briefly detail the hospital's investigations involving Dr. Couch and the hospital's corrective action below, which was thoroughly recounted by the district court in its order granting summary judgment for the defendants.
The first alleged incidents of retaliation arose in October 2001, when MHCC's counsel, at the direction of the hospital's Board of Trustees (the "Board"), solicited Thomas Rardin, a private investigator, to investigate the relationship between Drs. Couch and Cesko. As Rardin noted in his report of the investigation, the Board was concerned that the acrimonious relationship might "adversely affect[ ]" employees and the community. (Aplt.App. 471.) After interviewing numerous staff members, and the doctors themselves, Rardin concluded both doctors had engaged in inappropriate conduct towards each other.2 Rardin's report recommended that the hospital should send a letter to both doctors "telling them to stop and either get along or maturely tolerate each other," and discussed the possibility of "psychological testing." (Id. at 421.)
MHCC's Chairman of the Board of Trustees, Judy Merrill, adopted Rardin's recommendation and sent Dr. Couch a letter, which acknowledged that the report uncovered disruptive conduct, and that clarified hospital procedures, instructed him not to ask people about Dr. Cesko's personal life and not to make disparaging comments about Dr. Cesko, and to follow the established chain of command with regards to all complaints about hospital staff. Ms. Merrill sent a similar letter to Dr. Cesko. Dr. Couch considered that the letter only "asked [him] to do [ ] things [he] was already doing." (Id. at 981.)
As discussed above, Dr. Couch filed a complaint with the WBM in November 2002, alleging Dr. Thomas made two critical errors, and requested "that the Board of Medicine require a hair drug test of Dr. Thomas. . . ." (Aplt.App. 558-59.) On April 14, 2003, the WBM informed Dr. Couch by letter that the Board's "investigation of this matter has disclosed no evidence that Dr. Thomas was either impaired and/or incompetent as alleged in your complaint." (Id. at 563.) Following the WBM's finding that Dr. Couch's complaint against Dr. Thomas and his request for Dr. Thomas to undergo drug testing were unsubstantiated, Dr. Thomas, on May 20, 2003, filed a "disruptive conduct report"3 with MHCC's Executive Committee,4 complaining that Dr. Couch reported Dr. Thomas to the WBM without first discussing those concerns with Dr. Thomas and following internal review procedures.5 In response to the complaint, on June 19, 2003, Dr. Duane Abels, the hospital's chief of staff, established an ad hoc committee consisting of Drs. Archie Kirsch and Charles Young to investigate Dr. Thomas's complaint. In turn, the ad hoc committee hired Thomas Rardin to investigate the matter.
As a result of his investigation, Rardin prepared a report detailing the substance of his interviews with the doctors and medical staff,6 which the ad hoc committee relied on in its "findings of investigation," dated September 18, 2003, concluding that "the method Dr. Couch chose to handle his complaint about Dr. Thomas' care . . . was inappropriate" and "constitute[d] disruptive conduct." (Aplt.App. 669.) The ad hoc committee explained that Dr. Couch's conduct was inappropriate because he (Id.) The ad hoc committee then forwarded its report on the disruptive conduct complaint to the Credentials Committee.7
The Credentials Committee "concluded that in order for the investigation to proceed a mental/psychiatric evaluation is needed." (Aplt.App. 1357.) By a letter dated October 31, 2003, the Committee directed Dr. Couch to receive an evaluation, at his own expense, with Dr. Michael Gendel in Denver, Colorado. After evaluating Dr. Couch on January 23, 2004, interviewing Dr. Couch's references, and reviewing pertinent documents from the hospital, Dr. Gendel prepared a report, dated February 2004, concluding that Dr. Couch did not suffer from a mental illness or disability. However, Dr. Gendel did recommend that Dr. Couch seek pyschotherapeutic help to "develop more nuanced social skills and to better recognize social demands and realities," or alternatively "coaching," which is "a kind of assistance which focuses on the practical difficulties faced in difficult workplace situations, and their practical solutions." (Id. at 694.)
The Credentials Committee reviewed Dr. Gendel's report and on May 11, 2004, it recommended to the Executive Committee that Dr. Couch "be placed on probation," that he be ordered to "undergo psychotherapeutic treatment with a psychiatrist chosen by the Credentials Committee," that he be required to meet with the Credentials Committee every three to six months and present a progress report from the psychiatrist, and that medical staff be informed of the situation and required to report any disruptive behavior. (Aplt.App. 1359.)
On June 2, 2004, the Executive Committee approved all of the Credentials Committee's recommendations concerning Dr. Couch's disruptive conduct, including the probation recommendation, and Dr. Couch was advised accordingly. On January 20, 2005, the Executive Committee...
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