Kolb v. Northside Hosp.

• Decision Date: 29 June 2017
• Docket Number: A17A0114.
• Citation: 802 S.E.2d 413
• Parties: KOLB v. NORTHSIDE HOSPITAL.
• Court: Georgia Court of Appeals

342 Ga.App. 192

802 S.E.2d 413

KOLB

v.NORTHSIDE HOSPITAL.

A17A0114.

Court of Appeals of Georgia.

June 29, 2017

Andrew M. Beal, Nicholas Prince Smith, Amy Bingming Cheng, for Appellant.

Stephen Derek Bauer, Ian Kyle Byrnside, Darrell Jay Solomon, James C. Rawls, Atlanta, for Appellee.

McMillian, Judge.

Susan Kolb, M.D., appeals the trial court's grant of summary judgment to Northside Hospital ("Northside") on her claims for breach of contract, negligence, tortious interference with business and contractual relations, and attorney fees arising out of the suspension of her medical staff privileges at the hospital. At issue in this appeal is whether the federal Health Care Quality Improvement Act of 1986 (the "HCQIA"), 42 USC § 11101 et seq., bars Dr. Kolb's recovery of money damages against Northside. Because we find that HCQIA immunity applies as a matter of law, we affirm the trial court's grant of summary judgment in favor of Northside.

"Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9–11–56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant." (Citation omitted.) Elder v. Hayes , 337 Ga.App. 826, 827, 788 S.E.2d 915 (2016).

So viewed, the evidence shows that Dr. Kolb is a plastic surgeon licensed to practice in the State of Georgia. She became a member of the medical staff at Northside on January 1, 1992. In late October 2007, Dr. Wayne L. Ambroze, who was vice chairman of the Medical Executive Committee (the "MEC") and vice chief of staff at Northside, notified Dr. Kolb in a telephone call that her privileges to practice at the hospital were being summarily suspended. Dr. Ambroze, along with Dr. Diane Wisebram, the chairman of the MEC, made the decision to suspend Dr. Kolb's privileges after receiving reports from various Northside staff members about Dr. Kolb.

On November 1, 2007, Drs. Wisebram and Ambroze sent Dr. Kolb a letter formally notifying her of her suspension and asserting that it was based on a "reasonable suspicion of impairment," arising from reports of statements that Dr. Kolb had made (the "Suspension Letter"). The letter stated that before Dr. Kolb's privileges could be reinstated, Northside required that she submit to a medical and psychiatric evaluation, with the results furnished to the hospital, and further informed her that under the hospital's "Medical Staff By-laws" (the "Bylaws"), she was entitled to a fair hearing on her suspension.

Dr. Kolb opted for a fair hearing, in lieu of the medical and psychiatric evaluations, and it was scheduled for January 7, 2008. An outside attorney was engaged to serve as the hearing officer, and four physicians not previously involved in the decision to suspend Dr. Kolb were appointed as members of the Fair Hearing Committee (FHC). At Dr. Kolb's request, the committee members were subjected to a number of voir dire questions submitted by her counsel, and she raised no objection to their service. Both Dr. Kolb and the MEC were represented by counsel at the hearing, which spanned two evenings and included over eight hours of evidence and argument on January 7 and February 5, 2008.

The FHC issued a written report in late February 2008 concluding that the MEC "presented sufficient evidence to convince the Fair Hearing Committee, by a preponderance of the evidence, that its action in imposing a summary suspension of Dr. Kolb's privileges was based in fact and was not arbitrary, unreasonable, or capricious." The FHC also found that "it could not, in good faith, make any recommendation that Dr. Kolb be allowed to continue to practice at Northside Hospital without an appropriate evaluation and intervention." Nevertheless, the FHC stated that "with a thorough long-term independent evaluation and compliance with any recommended treatment and monitoring, [it] felt there might be a limited opportunity for Dr. Kolb to demonstrate her ability to practice at Northside Hospital in the future" and listed recommended steps for her to follow to seek reinstatement.

Dr. Kolb appealed the FHC's decision to an Appellate Review Committee, comprised of three members of Northside's Board of Directors (the "Appellate Committee"). At Dr. Kolb's request, no oral argument was held before that committee. In its written decision in May 2008, the Appellate Committee unanimously found that the FHC's decision regarding the suspension of Dr. Kolb "was justified and was not arbitrary, unreasonable or capricious." However, the Appellate Committee recommended certain modifications to the FHC's recommended steps for Dr. Kolb to follow before seeking reinstatement of her privileges at Northside. Nothing in the record shows that Dr. Kolb followed the recommendations of either the Hearing or the Appellate Committees.¹

Over four years later, Dr. Kolb initiated this action, and she now appeals the trial court's grant of summary judgment on her claims, arguing that the trial court applied an incorrect standard of review by failing to view the facts in the light most favorable to her and instead giving undue deference to the hospital's decision, thus depriving her of a meaningful review of the record. She also argues that under the proper standard of review, a jury could find that Northside was not entitled to immunity from damages under the HCQIA.

1. As an initial matter, we note that "HCQIA immunity is a question of law for the court to decide and may be resolved whenever the record in a particular case becomes sufficiently developed." (Citation and punctuation omitted.) Taylor v. Kennestone Hosp., Inc. , 266 Ga.App. 14, 14, 596 S.E.2d 179 (2004). See also Bryan v. James E. Holmes Regional Med. Center , 33 F.3d 1318, 1332 (III) (A) (11th Cir. 1994). Here, the parties agree that the HCQIA governs the peer review decision resulting in Dr. Kolb's suspension, although they dispute whether Northside complied with the statute in conducting that review. See 42 USC § 11151 (9) (defining "professional review action"). The HCQIA provides immunity from monetary damages for professional review actions taken

(1) in the reasonable belief that the action was in furtherance of quality health care,

(2) after a reasonable effort to obtain the facts of the matter,

(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and

(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirements of paragraph (3).

42 USC § 11112 (a). See also 42 USC § 11111 (a) (1) (providing that professional review actions meeting the requirements of § 11112 (a) insulate, inter alia, the professional review body, its members, and staff from liability for money damages under federal or state law for claims arising out of their actions, with certain limited exceptions not applicable here).²

Under 42 USC § 11112 (a), professional review actions are presumed to have met these statutory requirements, and the burden is on the opposing party to rebut that presumption by a preponderance of the evidence. Therefore, "the presumption language in [the] HCQIA means that the plaintiff bears the burden of proving that the peer review process was not reasonable." (Emphasis in original.) Bryan , 33 F.3d at 1333 (III) (A).³

2. Dr. Kolb first argues that the trial court erred in giving great deference to Northside's decision to suspend her privileges instead of construing the evidence in her favor on summary judgment.

This Court has held that in reviewing the issue of immunity under the HCQIA on summary judgment, a "trial court is required to determine, viewing the facts in the light most favorable to the plaintiff , whether a reasonable jury could conclude that the plaintiff has shown by a preponderance of the evidence that the peer review activities did not meet the standards set forth in the Act." (Citation and punctuation omitted; emphasis in original.) Patton v. St. Francis Hosp. , 260 Ga.App. 202, 205 (1) (b), 581 S.E.2d 551 (2003). See also Davenport v. Northeast Ga. Med. Center , 247 Ga.App. 179, 180, 542 S.E.2d 525 (2000). See also Bryan , 33 F.3d at 1333–34 (III) (A). However, this Court also has held that the HCQIA "grants broad discretion to hospitals with regard to staff privilege decisions, and our role on review of such actions is not to substitute our judgment for that of the hospital's governing board or to reweigh the evidence regarding the termination of medical staff privileges." (Citation and punctuation omitted.) Patton , 260 Ga.App. at 207–08 (1) (c) (iv), 581 S.E.2d 551. See also Univ. Health Svcs., Inc. v. Long , 274 Ga. 829, 829, 561 S.E.2d 77 (2002). This Court, on occasion, has expressed this standard as giving "deference" to a hospital's review decision.⁴ See Burrowes v. Northside Hosp. , 294 Ga.App. 472, 476 (2), 671 S.E.2d 176 (2008).

Here, the trial court found that no genuine issues of material fact existed and recited the standards that "its role was not to substitute it judgment regarding a physician's competency for the medical judgment of the hospital" and that it was required to give "great deference to the hospital's medical decision and that of the governing body of the hospital." Although the trial court did not expressly recite the requirement that the evidence must be construed in the light most favorable to Dr. Kolb, we find no indication that the trial court failed to do so. See Patton , 260 Ga.App. at 205 (1) (b), 581 S.E.2d 551. But pretermitting whether the trial court properly construed the evidence, our review of the trial court's order on appeal is de novo, and we apply the standard set forth in Patton in our review of the evidence.

3. Dr. Kolb also contends that the trial court erred in granting summary judgment to Northside because, viewing...