Lowe v. Scott
| Decision Date | 10 January 1992 |
| Docket Number | No. 91-1592,91-1592 |
| Citation | 959 F.2d 323 |
| Parties | Lynn C. LOWE, M.D., et al., Plaintiffs, Appellants, v. H. Denman SCOTT, M.D., et al., Defendants, Appellees. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
Lynette Labinger with whom Roney & Labinger, Providence, R.I., was on brief, for plaintiffs, appellants.
Marc DeSisto with whom Carroll, Kelly & Murphy, Providence, R.I., was on brief, for Milton W. Hamolsky, M.D.
Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.
Dr. Lynn C. Lowe ("Dr. Lowe") 1 is an obstetrician-gynecologist licensed to practice medicine in Rhode Island who holds staff privileges at Women & Infants' Hospital ("WIH"), a private hospital located in Providence, Rhode Island. On November 15, 1989, WIH suspended Dr. Lowe's privilege to supervise nurse midwives at the delivery stage. The following month, in December 1989, Dr. Lowe brought an action in the District Court for the District of Rhode Island pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief against officials of Rhode Island's Board of Medical Licensure and Discipline. Dr. Lowe alleged that these officials deprived him without due process of his constitutionally-protected property interests in his license to practice medicine and hospital privilege to supervise nurse midwives at WIH. 2 Named as defendants in their official capacity were H. Denman Scott, M.D., the Chairman of Rhode Island's Board of Medical Licensure and Discipline, and Milton W. Hamolsky, M.D., the Board's Chief Administrative Officer. Dr. Hamolsky was also sued under § 1983 for damages in his individual capacity. In addition, Dr. Lowe's complaint alleged a claim of tortious interference with advantageous and/or contractual relations under Rhode Island law.
By the time of trial in April 1991, WIH had reinstated Dr. Lowe's privilege to supervise nurse midwives, thereby rendering the claims for injunctive and declarative relief moot. The case proceeded to a jury verdict on the issue of damages under § 1983 against Dr. Hamolsky in his individual capacity. The jury returned a verdict in Dr. Lowe's favor for $175,000 on the due process claim of deprivation of Dr. Lowe's privilege to supervise nurse midwives, but rejected his state tort claim.
After entry of the verdict on Dr. Lowe's due process claim, the district court granted a motion for directed verdict by Dr. Hamolsky made at the close of Dr. Lowe's evidence and renewed at the conclusion of Dr. Hamolsky's defense. The district court ruled that the evidence was insufficient to establish that Dr. Lowe had a constitutionally-protected property interest in his hospital privilege to supervise nurse midwives at WIH. The district court also granted Dr. Hamolsky's motion for a conditional new trial in the event of reversal on appeal by this court of the directed verdict in Dr. Hamolsky's favor.
Dr. Lowe appeals both the district court's grant of a directed verdict on his constitutional claim and the grant of a conditional new trial. No appeal has been taken by Dr. Lowe from the jury verdict rejecting his tort claim. We affirm the district court's grant of a directed verdict, although on different grounds than those relied on by the district court.
Because of the complexity of the factual predicate to Dr. Lowe's due process claims and the procedural posture of this case on appeal, it is necessary to review in detail the trial testimony and evidence. We present the testimony by subject matter.
Dr. Lowe testified that a substantial portion of his private practice in obstetrics and gynecology was handled by two certified nurse midwives ("CNMs"). These nurse midwives were qualified to perform routine obstetrical and gynecological procedures, including hospital deliveries. The two CNMs associated with Dr. Lowe played a significant role in his overall practice because many patients preferred to be attended by a midwife rather than a physician throughout their pregnancies. During deliveries performed by the CNMs at WIH, Dr. Lowe had the responsibility to be present at the hospital, so as to be available for consultation in the event of problems or to take over if the need arose for operative delivery by forceps or caesarian section.
Dr. Lowe's authority to supervise CNMs was only a part of his overall hospital privileges as an obstetrician-gynecologist to admit patients and perform certain kinds of surgery at WIH. At WIH, the grant or revocation of such privileges depended on the recommendation of a supervising "Medical Staff Executive Committee" and the vote of the hospital's Board of Trustees. CNMs who performed deliveries at WIH were required to comply with applicable hospital procedures, which included the requirement that a supervising physician with appropriate privileges be present at the hospital throughout the delivery. Dr. Lowe's authority to supervise CNMs during deliveries at WIH was thus an important feature of his practice.
In April of 1987, the Board of Medical Licensure and Discipline of Rhode Island's Department of Health ("the Board") began an investigation of Dr. Lowe because of concerns about certain aspects of his past performance. Under Rhode Island law, the Board has the authority, subject to statutorily-mandated procedural requirements, to revoke or restrict medical licenses. See R.I.Gen.Laws §§ 5-37-5.1 to -9.1 (1991). The investigation of Dr. Lowe was carried out by a four-person subcommittee of the Board, Investigating Committee I. At that time the Board's chair was the defendant Dr. H. Denman Scott, who was also the director of Rhode Island's Department of Health. Dr. Frances P. Conklin, also a member of the Board, served as the chair of Investigating Committee I during its review of Dr. Lowe's cases.
Dr. Milton W. Hamolsky also assisted in the investigation of Dr. Lowe. Dr. Hamolsky was the Board's Chief Administrative Officer, and as such was responsible for the day-to-day conduct of the Board's activities concerning physician licensing and discipline. He was not, however, a member of the Board itself. As Chief Administrative Officer, Dr. Hamolsky assisted the Board's Investigating Committees in preliminary inquiries into complaints of physician misconduct and transmitted the results of these inquiries to the full Board for its consideration. In the event of a finding of physician misconduct by the Board, Dr. Hamolsky had the responsibility to notify all Rhode Island hospitals and the general public of the Board's disciplinary action.
At the same time that the Board began its investigation of Dr. Lowe, WIH began its own review of Dr. Lowe's cases in order to determine if a modification of his hospital privileges might be necessary. In September 1987, following investigation of Dr. Lowe's treatment of one patient in particular, Dr. Hamolsky contacted Dr. Lowe on behalf of the Board to inform him that his license to practice medicine had been suspended pending a hearing. Because of the interim suspension of Dr. Lowe's license, WIH simultaneously revoked his hospital privileges.
Following the Board's suspension of his license to practice medicine, Dr. Lowe negotiated a draft "Consent Order" with Investigating Committee I which was intended to permit him, although subject to certain restrictions, to resume the practice of medicine. The principal architects of the draft Consent Order were counsel for Dr. Lowe and the Board. Dr. Hamolsky also participated in these negotiations as the representative of Investigating Committee I. Dr. Lowe agreed to be bound by the terms of the proposed Consent Order upon its approval by the full Board. On February 2, 1988, the Board adopted the Consent Order.
The Consent Order identified three "areas of concern" noted by Investigating Committee I that were to be remedied by restrictions on Dr. Lowe's license over the following three years: (1) due to the size of his practice, Dr. Lowe had risked giving insufficient attention to complex problems and had also risked missing clinical complications at an early stage when their remedy would have been relatively simple; (2) Dr. Lowe "overly relied on nurse mid-wives to manage complex obstetrical cases;" and (3) Dr. Lowe had, at times, failed to consult with experienced colleagues as complications arose. In order to address these concerns, the Consent Order required, inter alia, the formation of a "pool" of physicians at WIH to supervise Dr. Lowe. Dr. Lowe agreed that he would not perform surgery without having a pool physician in attendance.
Section 12 of the Consent Order specifically addressed Dr. Lowe's use of nurse midwives: "Respondent and his staff shall strictly adhere to the WIH protocols for use of certified nurse-midwives." 3 Both Dr. Hamolsky and Dr. Conklin testified that section 12 of the Consent Order was intended to address the finding of Investigating Committee I that Dr. Lowe "overly relied on nurse mid-wives to manage complicated obstetrical cases." Dr. Conklin stated that it was the position of Investigating Committee I that Dr. Lowe should not be allowed to supervise nurse midwives and that this position was clearly communicated to Dr. Hamolsky during the drafting of the Consent Order. Dr. Hamolsky testified that he, along with the members of Investigating Committee I, believed that the Consent Order would prevent Dr. Lowe from supervising nurse midwives for the three-year duration of the Order.
By agreeing to the Consent Order, Dr. Lowe expressly waived, inter alia, his right to a full hearing before the Board and any rights to appeal. The Order nonetheless specified certain procedures through which the restrictions on Dr. Lowe's license could be modified. The Order provided that the physician pool would report to Investigating Committee I on Dr. Lowe's...
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