Nicholas v. North Colorado Medical Center, Inc.
| Citation | 902 P.2d 462 |
| Decision Date | 02 February 1995 |
| Docket Number | No. 93CA1379,93CA1379 |
| Parties | 1995-1 Trade Cases P 70,899 William John NICHOLAS, M.D., F.A.C.C., Complainant-Appellee, and The Committee on Anticompetitive Conduct, State of Colorado, Appellee, v. NORTH COLORADO MEDICAL CENTER, INC., a Colorado not-for-profit corporation, and The Governing Board of Directors of the North Colorado Medical Center, Respondents-Appellants. . IV |
| Court | Colorado Court of Appeals |
Nicholas Law Office, Lillian N. Sharpe, Philip Nicholas, Laramie, WY, for complainant-appellee.
No appearance for appellee.
Yu, Stromberg, Huotari & Cleveland, Frederick Y. Yu, Barbara L. Crawford, Denver, CO, for respondents-appellants.
Opinion by Judge CASEBOLT.
In this appeal from the findings and conclusions of a committee of the Colorado State Board of Medical Examiners known as the committee on anticompetitive conduct, North Colorado Medical Center, Inc., (NCMC) and its governing board of directors seek review of the determination that NCMC's action in restricting the staff privileges of William John Nicholas, M.D., was the result of unreasonable anticompetitive conduct. We affirm.
Nicholas joined the partnership of the Greeley Medical Clinic, an entity unrelated to NCMC, as an invasive cardiologist in the summer of 1989. At that time, the clinic employed three other invasive cardiologists who provided most, if not all, of the invasive cardiology services in Greeley. Also in the summer of 1989, Nicholas joined the staff of Greeley's hospital, NCMC, and was granted provisional invasive cardiology privileges. NCMC was the only facility in Greeley equipped and staffed to handle invasive cardiology cases.
Nicholas' contract with the Greeley Medical Clinic was terminated by the other three cardiologists in September of 1990. This action had no official effect on his independent status as a member of the staff of NCMC; however, the cardiologists at the clinic who terminated Nicholas' contract also worked at the hospital.
According to NCMC, a large number of variance reports were filed against Nicholas which prompted the hospital's Medical Quality Assessment Committee to begin an investigation of Nicholas in early 1990.
The Medical Quality Assessment Committee is a standing committee of the hospital which reports to the Credentials Subcommittee, a subcommittee of an entity called the House Committee. The House Committee was charged by the hospital's Board of Directors (governing board) with the responsibility of running the daily operations of the hospital.
After conducting an investigation, the Medical Quality Assessment Committee recommended to the Credentials Subcommittee that Nicholas be evaluated by an outside proctor. A physician from outside the Greeley area was employed for this purpose. This outside proctor's investigation report was critical of Nicholas, and in November of 1991, the Credentials Subcommittee released a Corrective Action Report, recommending that Nicholas progress to active medical staff membership on a probationary basis without invasive cardiology privileges.
In accordance with NCMC bylaws, Nicholas requested appointment of a Fair Hearing Panel in order to review the recommendation of the Credentials Subcommittee. The Fair Hearing Panel issued its findings and recommendations in March 1992, rejecting many of the quality of care findings of the Credentials Subcommittee and recommending reinstatement of Nicholas' invasive cardiology privileges on a probationary basis.
Both Nicholas and the Credentials Subcommittee appealed the Fair Hearing Panel's recommendations to the House Committee. The House Committee rejected the recommendation of the Fair Hearing Panel and recommended that Nicholas progress to active status without invasive cardiology privileges for a probationary period of 12 months, after which time he could apply for invasive cardiology privileges. This recommendation was adopted by the governing board.
Acting pursuant to § 12-36.5-106, C.R.S. (1991 Repl.Vol. 5B), in June of 1992, Nicholas filed a complaint with the Colorado State Board of Medical Examiners committee on anticompetitive conduct (committee). In his complaint he alleged that his loss of privileges resulted from the efforts of another invasive cardiologist previously employed with him at the Greeley Medical Clinic (opposing cardiologist) to eliminate him as a competitor. After extensive discovery and a hearing, the committee issued its Final Committee Report on July 12, 1993. The committee made findings and issued conclusions that found the existence of unreasonable anticompetitive conduct and, thus, set aside the action of the governing board.
The committee found that the opposing cardiologist was hostile to Nicholas and that he openly exhibited his low opinion of Nicholas. This, in turn, caused others to view Nicholas in a negative light, scrutinize his work, and not refer him patients.
In addition, the committee found that there was evidence of a plan to bias the independent review of Nicholas. First, the reviewer had been provided with a written summary of Nicholas' professional competence which was, in the opinion of the committee, unfairly slanted and biased against Nicholas. Moreover, the independent reviewer was asked to meet with the opposing cardiologist, but not with a doctor who had acted as Nicholas' in-house proctor who was known to hold a generally favorable opinion of Nicholas. Finally, the committee found that misinformation about whether Nicholas had improperly altered an EKG report was allowed to linger uncorrected by members of the peer review team until after the Credentials Subcommittee had published its Corrective Action Report.
The committee also found disturbing the fact that the Credentials Subcommittee recommended termination of Nicholas' invasive cardiology privileges, even though the Quality Assurance Committee and Fair Hearing Panel had recommended less severe action. It determined that this, in conjunction with the governing board's rejection of the Fair Hearing Panel's recommendations, was evidence of a concerted action to remove Nicholas from the Greeley medical scene.
Although it concluded that no single circumstance was sufficient, standing alone, to prove concerted action, the committee found that the totality of circumstances was sufficient to prove that the opposing cardiologist had a plan to eliminate Nicholas from cardiology practice in the Greeley area and that one or more persons involved in the peer review process knew of and joined his plan.
Further, the committee concluded that NCMC was the principal, if not the only, place in the Greeley area where an invasive cardiologist could practice. Therefore, when the hospital denied invasive cardiology privileges to Nicholas, his ability to compete in the Greeley market was destroyed. This in turn, said the committee, had an adverse effect on competition.
It then determined that the peer review process was not conducted in good faith as a quality assurance measure. Rather, it concluded that personal hostility towards Nicholas was a motivating factor for those acting in concert against him.
The committee noted that the opposing cardiologist had only limited direct observation of Nicholas' work, making it unlikely he was motivated by genuine concern for quality assurance. The opposing cardiologist's strong dislike of Nicholas was well known by the employees of the hospital. Moreover, the committee found there was evidence which indicated that the hospital intended to "make a case" against Nicholas rather than achieve objective quality assurance. Additionally, it again noted that the less severe sanctions were rejected by the governing board.
Finally, the committee determined that, but for the concerted action of individuals improperly motivated against Nicholas, the final action of the governing board terminating his invasive cardiology privileges would not have resulted. It found that the initiator or initiators of the process were doctors who harbored a personal dislike for Nicholas and their behavior towards him resulted in ill-feeling among the employees of the hospital. This resulted in Nicholas receiving greater scrutiny of his work. The committee concluded that the severe ultimate action of the governing board was the result of a slanted perspective, and the corrective action would have otherwise been far less severe.
Therefore, although the committee was not convinced that anyone intended to eliminate Nicholas in order to obtain competitive advantage, it found that a personal agenda motivated by animosity was insufficient to outweigh the adverse effect upon competition. Consequently, it set aside the action of NCMC's governing board. NCMC now seeks review of that determination.
As an initial matter, Nicholas contends that NCMC does not have standing to challenge and seek review of the decision of the committee because NCMC, acting in its peer review capacity, is a subordinate agency of the committee. We disagree.
In Martin v. District Court, 191 Colo. 107, 550 P.2d 864 (1976), the supreme court held that an agency lacks standing to seek administrative review of a superior state agency when two conditions are met: (1) the agency seeking judicial review is subordinate to the agency whose decision is sought to be reviewed, and (2) no statutory provision confers a right upon the subordinate agency to seek judicial review of the superior agency's decision. See also Maurer v. Young Life, 779 P.2d 1317 (Colo.1989).
Here, when performing peer review activities, the governing board of NCMC is clothed with the status of a state agency. See § 12-36.5-103, C.R.S. (1991 Repl.Vol. 5B). There is no provision in the statute that indicates whether the governing board acts in a subordinate capacity to the committee for purposes of peer review.
However, even if we assume, without deciding, that the NCMC governing...
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