Fobbs v. Holy Cross Health System Corp., CV-F-89-682-REC.

• Decision Date: 16 March 1992
• Docket Number: No. CV-F-89-682-REC.,CV-F-89-682-REC.
• Citation: 789 F. Supp. 1054
• Parties: Denard FOBBS, M.D., Plaintiff, v. HOLY CROSS HEALTH SYSTEM CORP. dba Saint Agnes Hospital and Medical Center, Cynthia Bergmann, M.D., James Cahill, M.D., Jay Christensen, M.D., Charles Gavin, M.D., Seung Nam Kim, M.D., Robert Meltvedt, M.D., Marshall Noel, M.D., Morton Rosenstein, M.D., Roydon Steinke, M.D., Robert Wilson, M.D., and Larry E. Nix, M.D., Defendants.
• Court: U.S. District Court — Eastern District of California

789 F. Supp. 1054

Denard FOBBS, M.D., Plaintiff, v. HOLY CROSS HEALTH SYSTEM CORP. dba Saint Agnes Hospital and Medical Center, Cynthia Bergmann, M.D., James Cahill, M.D., Jay Christensen, M.D., Charles Gavin, M.D., Seung Nam Kim, M.D., Robert Meltvedt, M.D., Marshall Noel, M.D., Morton Rosenstein, M.D., Roydon Steinke, M.D., Robert Wilson, M.D., and Larry E. Nix, M.D., Defendants.

No. CV-F-89-682-REC.

United States District Court, E.D. California.

March 16, 1992.

COPYRIGHT MATERIAL OMITTED

Jacob M. Weisberg, Fresno, Cal., Boyd S. Lemon, Hirschtick Chenen Lemon Cohen and Linden, Marina Del Rey, Cal., James Francis Tritt, Fresno, Cal., for Fobbs.

Mario Louis Beltramo, Jr., McCormick Barstow Sheppard Wayte and Carruth, Fresno, Cal., for Holy Cross and St. Agnes.

J. Robert Liset, Musick Peeler and Garrett, Los Angeles, Cal., for defendants/doctors.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

COYLE, Chief Judge.

On October 15, 1991, the court heard defendants' motion for partial summary judgment. Upon due consideration of the written and oral arguments of the parties, the court now enters its order granting the motion as set forth herein.

In this motion physician-defendants seek summary judgment of plaintiff's Sherman Act claim. Corporation-defendants have joined in physician-defendants' motion for summary judgment. Physician-defendants and corporation-defendants are collectively referred to as "defendants."

I. Background

Plaintiff is a physician licensed to practice medicine in the States of California and Texas. He has conducted an obstetrics and gynecology (hereinafter "ob/gyn") practice in Fresno since 1982. All physician-defendants are also licensed to practice medicine in the State of California, and conduct ob/gyn practices in Fresno County.

Defendant St. Agnes Medical Center, a not-for-profit corporation, is a wholly-owned subsidiary of defendant Holy Cross Health System Corp., also a not-for-profit corporation. St. Agnes is an ob/gyn facility in Fresno County. At one point or another, all physician-defendants were members of various staff committees at St. Agnes.¹

Plaintiff became a member of the Department of Obstetrics-Gynecology/Perinatology at St. Agnes in 1982. In 1987, St. Agnes granted plaintiff temporary privileges to perform intra-abdominal laser surgery.² After plaintiff had performed a few intra-abdominal laser surgeries, defendants state that "concerns were raised as to possible irregularities with respect to Plaintiff's handling of these cases." Consequently, the Ob-Gyn/Perinatology Supervisory Committee (hereinafter "Supervisory Committee") invited plaintiff to discuss three specific cases on March 30, 1987. As a result of this meeting, copies of the three cases were sent to Dr. Ostergard for review. Dr. Ostergard is a professor and a former mentor of plaintiff's.

Dr. Ostergard's report is interpreted differently by plaintiff and defendants. Defendants assert that Dr. Ostergard was critical of plaintiff's management of the cases which were submitted for his review, while plaintiff asserts that Dr. Ostergard was primarily critical of the hospital. Both assertions are true to an extent.

St. Agnes' Tissue and Blood Usage Committee (hereinafter "TBU Committee") reviews all surgical cases in which a specimen is removed. On March 14, 1987, the TBU Committee referred a case of plaintiff's to the Supervisory Committee. The members of the Supervisory Committee arranged for plaintiff to discuss this case with them on May 26, 1987.

The Supervisory Committee determined that plaintiff had improperly managed this case and the aforementioned three cases, and made a recommendation to the Medical Executive Committee (hereinafter "MEC") that plaintiff be made subject to a monitoring system.

On June 23, 1987, based upon the Supervisory Committee's review of these four cases and its recommendation that a monitoring system be established, the MEC imposed monitoring and consultation restraints on patients admitted to St. Agnes by plaintiff. Restraints consisted of the following:

1. Plaintiff was to have a second opinion on every admission to Saint Agnes Medical Center;

2. This was to include a history and physical examination by the monitor;

3. On any surgical procedure, the monitor was to be present during the operation;

4. The follow-up care of the patient was to be shared with the monitor;

5. The monitors were to be members of the Ob-Gyn/Perinatology Supervisory Committee.

On July 14, 1987, plaintiff met informally with the MEC to discuss the monitoring restraints. The MEC decided to continue the monitoring system and directed the Supervisory Committee to conduct a further review of plaintiff's cases.

Members of the Supervisory Committee conducted a random review of plaintiff's cases and determined that four more had been improperly managed. These cases, plus the previous four, were included in a formal notice of charges to be reviewed by St. Agnes' Judicial Review Committee (hereinafter "JRC").

The JRC conducted a review of the eight cases at a hearing on September 15 and 24, 1987. On October 20, 1987, the JRC affirmed the MEC's decision to continue monitoring plaintiff. Plaintiff subsequently appealed this decision to the Appeal Board of the Board of Trustees (hereinafter "Appeal Board"). The Appeal Board ordered the JRC to reopen the hearing in order to consider additional evidence to be provided by plaintiff which the JRC had not previously had before it. The Appeal Board also provided that the parties would be represented by counsel at the reopened hearing.

On February 22, 1988, the JRC affirmed the MEC's decision to impose a monitoring system on plaintiff, with modifications. The JRC defined the circumstances which would require a "mandatory consult," and limited the duration of the monitoring restrictions to November 20, 1988, at which time the MEC was to review plaintiff's progress and make recommendations as to the continued viability of his privileges at St. Agnes.

On February 24, 1988, plaintiff appealed this decision of the JRC to the Appeal Board. On April 19, 1988, the Appeal Board received argument from counsel for both plaintiff and the MEC. Plaintiff's counsel argued, and the MEC agreed, that plaintiff had wrongly been denied the right to conduct voir dire of the JRC members at the previous hearings.³ As a result, the Appeal Board made the following recommendations:

1. that the matter be remanded to a newly constituted JRC with new members for further review and decision;

2. that the parties have the right to engage in voir dire examination of the members of the newly formed JRC;

3. that the requirements of monitoring upon plaintiff be continued until further decision of the JRC; and

4. that the JRC promptly conduct its review and make its recommendation to the Board of Trustees of St. Agnes Medical Center and report the decision within thirty days from the date of remand.

St. Agnes' Board of Trustees approved the Appeal Board's recommendation.

The JRC decided to allow both parties to be represented by counsel at the remand hearing.

The remand hearing was originally set for May 9, 1988, however, due to conflicts in both parties' schedules, it was postponed to June 13 and 14, 1988. The JRC set voir dire for June 10, 1988. The hearing was then again postponed, to August 1 and 2, 1988, with voir dire on July 28, 1988, in order to accommodate the schedule of plaintiff's new counsel.

On July 15, 1988, plaintiff informed the JRC that he would not participate in the remand hearing or any other proceedings. Plaintiff states that he "desired that the administrative hearing proceed to its conclusion so that he could seek review in the court, and he determined that further participation would be futile in view of the erroneous and unfair hearing standards."⁴ Plaintiff further states that "although he did not physically appear, he did not waive his right to a hearing and desired that the hearing proceed to conclusion, to permit subsequent judicial review."

The JRC met on August 1, 1988, to determine whether plaintiff had good cause for his decision to withdraw from further proceedings. At the onset of the hearing, the hearing officer conducted a pseudo-voir dire of the new JRC members. Each member indicated that he or she could fairly and impartially consider the matter before him or her.

The JRC then decided that plaintiff did not have good cause for failing to attend the hearing and deemed him to have voluntarily accepted the monitoring restraints.

On August 10, 1988, plaintiff performed a Cesarean Section without obtaining a consultation as required by the monitoring system. On August 26, 1988, plaintiff met with the MEC regarding his compliance with the monitoring system. At this meeting plaintiff indicated that he had not complied with the system in connection with the patient upon whom he had performed the Cesarean, and that he did not plan to comply in the future.⁵ At this juncture, plaintiff's medical staff membership at St. Agnes was suspended. Defendants assert that this suspension was a final decision, however, plaintiff contends that it was not.

On August 29, 1988, plaintiff received notice of his suspension and his right to appeal. Thereafter, plaintiff informed the MEC that he would not participate in an appeal or hearing unless:

1. the earlier imposed monitoring was curtailed; and

2. the hearing was fair, meaning

a. the hearing officer is unbiased and has no pecuniary interest in the matter;

b. all members of the hearing panel are not in competition with plaintiff and are from outside of the Fresno/Modesto area; and

c. at least one member of the hearing panel has knowledge and experience in laser abdominal surgery.

The MEC considered plaintiff's letter ambiguous regarding his decision to appeal his suspension and allowed him 15 more days to request a hearing. In a letter dated September 29, 1988, plaintiff declined to request a hearing.

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