Fort Wayne Women's Health v. Bd. of Com'rs, Allen County, Ind., Cause No. 1:10-CV-192 RM

• Decision Date: 11 August 2010
• Docket Number: Cause No. 1:10-CV-192 RM
• Parties: FORT WAYNE WOMEN'S HEALTH, on its own behalf and on behalf of its patients, Dr. Ulrich G. Klopfer, on his own behalf and on behalf of his patients, Plaintiffs v. BOARD OF COMMISSIONERS, ALLEN COUNTY, INDIANA, Defendant.
• Court: U.S. District Court — Northern District of Indiana

735 F.Supp.2d 1045

FORT WAYNE WOMEN'S HEALTH, on its own behalf and on behalf of its patients, Dr. Ulrich G. Klopfer, on his own behalf and on behalf of his patients, Plaintiffs

v.BOARD OF COMMISSIONERS, ALLEN COUNTY, INDIANA, Defendant.

Cause No. 1:10-CV-192 RM.

United States District Court,

N.D. Indiana,

Fort Wayne Division.

Aug. 11, 2010.

Kenneth J. Falk, ACLU of Indiana, Indianapolis, IN, Suzanne Novak Phv, New York, NY, for Plaintiffs.

G. William Fishering, Laura L. Maser, Beers Mallers Backs & Salin LLP, Fort Wayne, IN, Matthew S. Bowman Phv, Steven H. Aden Phv, Alliance Defense Fund, Washington, DC, for Defendant.

OPINION and ORDER

ROBERT L. MILLER, JR., District Judge.

This matter comes before the court on the motion of Fort Wayne Women's Health and Dr. Ulrich G. Klopfer for preliminary injunction and on the Allen County Board of Commissioners' motion to dismiss. The court held a hearing on this matter on August 9, 2010, and the motions are ripe for decision.

I. Facts

This case involves application of a county ordinance to an abortion provider and his clinic. The Allen County Board of Commissioners passed Amended Title 10, Article 10, "An Ordinance Amending the Patient Safety Ordinance" in June. The parties agreed to stay the ordinance's effective date until this court rules on the preliminary injunction motion.

In September 2008, the county commissioners began to consider an ordinance, spurred by concern from local physicians that doctors from out of town were placing patients at risk by performing procedures without backup coverage. Dr. Geoff Cly, alocal OB/GYN, said that ensuring provider accountability required follow-up and peer review procedures for itinerant physicians and that serious complications and deaths were much more likely if no such steps were taken.

Discussion at the March 2010 meeting in which the ordinance was introduced included the following:

• The bill had been written in consultation with the Department of Health, the Fort Wayne Medical Society and doctors of varying specialties.

• Though doctors who lived in the city, county, or surrounding counties were subject to peer review through their privileges at local hospitals, others weren't subject to any peer review process.

• There had been instances in which patients of visiting gastroenterologists and ophthalmologists had, in the middle of the night, called the number given them, only to be told by recordings to call 911 or go to the emergency room. The emergency room physician who saw the patient would have no access to what was done in the office and wouldn't know where to call to arrange the appropriate follow-up for the patient.

• Out-of-town lasik and liposuction surgeons had left patients blind and disfigured without follow-up.

• The Ordinance would send a message to out-of-town physicians: if they practice in Allen County and their patient has an off-hours problem, it's the out-of-town doctor's responsibility to take care of the problem.

• The county medical society saw the bill as addressing a need.

• The bill would, according to the county Health Commissioner, foster patient safety in Allen County.

The commissioners unanimously adopted the ordinance in April and amended it in June.

The ordinance applies to "Itinerant Medical Providers," who are doctors living outside of Allen County or a contiguous county and not having admitting privileges in a hospital in Allen County or in a county contiguous to Allen County. The ordinance applies to itinerant providers who provide "medical care," defined as "any surgical or other invasive procedures" as defined by Indiana law, and to "Operators," who are people or entities that own the facilities where the medical care is provided.

The ordinance requires an itinerant provider providing medical care in Allen County to provide emergency contact information, including "the Itinerant Medical Provider's and their Physician Designee's names, medical license numbers and phone number where either may be reached on a twenty four (24) hour a day, seven (7) day a week basis." The itinerant provider must pay a fee of $250 and provide the emergency contact information to the county health department and all county operating hospitals, emergency departments, and urgent care providers. A "Physician Designee" is "a physician who is willing to be designated and who is not an Itinerant Medical Provider." A local hospital, emergency department, or urgent care provider must transmit a summary of any follow-up care to the operator, itinerant medical provider, and physician designee.

Each itinerant medical provider must notify each patient orally and in writing, before providing medical care, of his emergency contact information and that of his physician designee, in case complications arise, and must keep a copy of the written notification signed by the patient. The operator must display a certificate of compliancewith the ordinance's requirements and provide materials the county health department prepares or approves, including information on how to report ordinance violations and the health department's duties to investigate those reports.

The health department is to inspect its records and the itinerant medical provider's and operator's displayed certification yearly to ensure compliance. The health department employee charged with enforcing the ordinance is to investigate "credible complaints" of violations of the ordinance, including, but not limited to, failure to provide emergency contact information. Upon receiving what the ordinance calls a "credible complaint" of a violation, the health officer must review the department's records, "the Itinerant Medical Provider's and Operator's displayed certification requirements and patients rights notifications, and documentation of emergency contact information provided by the Itinerant Medical Provider to Allen County operating hospitals, emergency departments and urgent care providers." The ordinance authorizes the health officer to seek a subpoena from local courts for the records and/or testimony about the records.

An investigation can include review of notifications signed by the patient, thus disclosing the patient's identity. The ordinance provides that patient-identifying information is to be redacted and documents containing information about patients is not to be disclosed to the public if otherwise prohibited by law. The ordinance allows patient-identifying information, including the patient's name, date of birth, address, social security number, etc., to be disclosed "in complaint reports to the Indiana State Medical Licensing Board as required by this Ordinance or as requested by that Board."

The ordinance provides that no information about itinerant medical providers in the possession of the board of health or the health officer is to be disclosed to the public as otherwise prohibited by law, but emergency contact information is to be released to county hospitals, emergency departments, and urgent care providers. The ordinance doesn't prohibit those entities from releasing that information. The itinerant medical provider's home address, social security number, birth date (as well as that of the physician designee) can be disclosed to health care providers as necessary to facilitate patient care.

If the health officer finds a violation, the itinerant medical provider or operator can seek an administrative hearing before the health officer or his or her designee, whose ruling can be appealed to the board of health. Violations are subject to injunctive relief and fines of $1,000 per violation, as well as costs, damages, and attorney fees. Any finding of violation must be sent to the Indiana State Medical Licensing Board.

Dr. Ulrich Klopfer and Fort Wayne Women's Health bring this suit to enjoin application of the ordinance against them. Dr. Klopfer is an itinerant medical provider, Fort Wayne Women's Health is an "operator" as defined by the ordinance, and surgical abortions performed there are "medical care" within the ordinance's definition.

Dr. Klopfer, who has an unlimited license issued by the Indiana State Medical Licensing Board to practice medicine in Indiana, owns and operates Fort Wayne Women's Health, an abortion clinic located in Fort Wayne and licensed by the state department of health. Fort Wayne Women's Health is the only clinic for 100 miles where surgical abortions are performed. Roughly a third of the women seeking abortion services from Fort Wayne Women'sHealth are from outside Allen County. Fort Wayne Women's Health complies with state requirements for abortion clinics.

People feel strongly about the abortion issue. Dr. Klopfer has been shot at and knows of violence that has been directed at other doctors who perform abortions. Dr. Klopfer tried to find a physician designee, but because of the controversial nature of abortions and because the physician designee's name will be distributed, he couldn't obtain a designee.

Before the original ordinance was to go into effect, Dr. Klopfer paid his $250 fee to the county health department and gave the required information for Fort Wayne Women's Health and himself. He was told he couldn't get a certificate of compliance because he didn't list a physician designee. Dr. Klopfer explained that he was available in case of emergencies twenty-four hours a day, seven days a week, 365 days a year. A certificate of compliance was then issued to Dr. Klopfer.

Dr. Klopfer had to disclose his home address on the county's application form. Doing so troubled Dr. Klopfer, who keeps his address out of the public domain. He would like to have all references to his home address in the county's possession extinguished. Dr. Klopfer has received a threatening communication since he filed this case. Dr. Klopfer also was given a set of fax numbers of facilities to which he must send his emergency contact information, including his cell phone number. He hasn't complied with this branch of the ordinance. He gives his...