Osuagwu v. Gila Reg'l Med. Ctr.
| Decision Date | 25 February 2013 |
| Docket Number | No. 11cv1 MV/SMV.,11cv1 MV/SMV. |
| Citation | 938 F.Supp.2d 1166 |
| Parties | Chinonyerem OSUAGWU, Plaintiff, v. GILA REGIONAL MEDICAL CENTER, Jean Remillard, M.D.; Gregory Koury, M.D.; Michael Sergeant, M.D.; Mark Donnell, M.D.; Ronald Deyhle, M.D.; Don White, Defendants. |
| Court | U.S. District Court — District of New Mexico |
OPINION TEXT STARTS HERE
Chinonyerem Osuagwu, Albuquerque, NM, pro se.
Candace J. Cavanaugh, Butt Thornton & Baehr PC, Albuquerque, NM, for Defendant Gila Regional.
Kevin J. Banville, Seth Sparks, Shannon Sherrell, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for the Individual Defendants.
THIS MATTER is before the Court on Defendants Dr. Jean Remillard's, Dr. Gregory Koury's, Dr. Michael Sergeant's, Dr. Mark Donnell's, Dr. Ronald Deyhle's, and Don White's Motion for Summary Judgment, filed December 20, 2012 (Doc. 196). The motion raises a single issue: whether these Defendants are individually shielded from suit because pro-se Plaintiff Dr. Chinonyerem Osuagwu signed a contract agreeing to be bound by Article XIV of the Medical Staff Bylaws of Gila Regional Medical Center (“Gila Regional”), which grants to them absolute immunity from suit under the condition that they have acted in good faith and without malice and at the behest of Gila Regional. The Court will grant summary judgment on all claims in favor of Defendants Sergeant, Donnell, and Deyhle because there is nothing in the record to show that they may have acted in bad faith or with malice. The Court will deny summary judgment in favor of Defendants Remillard, Koury, and White, however, because either they acted without authority or because there are genuine issues of material fact whether these individuals acted in good faith and without malice during these proceedings.
On a motion for summary judgment, the Court view[s] the evidence and its reasonable inferences in the light most favorable to the non-movant. Summary judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party” on the issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue of fact is material “if under the substantive law it is essential to the proper disposition of the claim.”
Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir.2011) (citations omitted). The ultimate inquiry in a summary judgment disposition is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).1
Plaintiff has sued Gila Regional and the individual Defendants for violation of his Fourteenth Amendment right to procedural due process under 42 U.S.C. § 1983, and he has also sued the individual Defendants for intentional infliction of emotional distress, defamation, and malicious abuse of process under state law. The Court has already granted summary judgment in favor of Plaintiff on his § 1983 claim against Gila Regional. Specifically, I found that Gila Regional, acting through its Medical Executive Committee (“MEC”), of which Dr. Sergeant and Dr. Koury were both members and for which they temporarily served as the head for a period of time, its Fair Hearing Committee (“FHC”), and its Board of Trustees
violated Plaintiff's rights to due process by: (i) extending the November 17, 2008 summary suspension, which had expired by operation of the Bylaws; (ii) imposing harsher, extended suspensions on November 24, 2008, without first making a finding that Plaintiff had ever placed patients in imminent danger, or giving Plaintiff pre-deprivation notice of the charges against him; and (iii) reporting the adverse action to the New Mexico Medical Board, based on suspensions that had automatically expired under operation of the Bylaws. Further, the Court finds that Gila Regional Medical Center, through its MEC, Board, and FHC, violated Plaintiff's due-process rights in the post-deprivation proceedings by (i) allowing Dr. Remillard to serve as accuser, investigator, prosecutor, and judge and; (ii) refusing to produce the reviewers and other physicians who had accused, or allegedly had accused, Plaintiff of substandard medical practices. Finally, the Court finds that the Board violated Plaintiff's post-deprivation due-process rights by: (i) considering evidence against which Plaintiff was never given the opportunity to defend or dispute, including at least two cases and Dr. Montoya's opinion as an expert; (ii) failing to rule on the FHC's recommendations to reject the MEC's November 24, 2008 recommendations, which had expired; and (iii) adopting the MEC's December 29, 2008 recommendations for suspension, which Plaintiff was never allowed to challenge through any process, and which had no support in the evidentiary record.
December 21, 2012 Memorandum Opinion & Order (“Opinion”) at 34–35, 938 F.Supp.2d 1142, 1165–66, 2012 WL 7869677 (Doc. 198). The Court required Gila Regional to “reinstate Plaintiff's medical privileges, and prepare and send the necessary documentation to recall and retract its adverse reports to the New Mexico Medical Board and the National Practitioner Data Bank, attaching to its letters this Opinion and the Court's March 27, 2012 Opinion.” Id. at 1166, at 35. The individual Defendants now assert that they are absolutely immune from suit on all of the Plaintiff's claims.
As part of his contract to provide medical services for Gila Regional in exchange for guaranteed income of $22,500/month, Plaintiff executed an agreement stating that he would be bound by Gila Regional's Bylaws. See Doc. 196, Ex. C at 2, ¶ 5; id. Ex. A at 4–5; Doc. 199 at 8, ¶¶ 10–11. The Bylaws in effect at this time contain an immunity provision providing:
ARTICLE XIV IMMUNITY FROM LIABILITY
14.1 Article XIV, shall be express conditions to any practitioner's application for or exercise of clinical privileges at GRMC.
14.2 That any act, communication, report, recommendation or disclosure, with respect to any such practitioner, performed or made in good faith and without malice and at the request of an authorized representative of this or any other health care facility, for the purpose of achieving and maintaining quality patient care in this or any other health care facility, shall be privileged.
14.3 That such privilege shall extend to members of the hospital's Medical Staff and of its Board of Trustees, its CEO and representatives, and to third parties who may be authorized to receive, release or act upon the same.
14.4 That there shall, to the fullest extent permitted by law, be absolute immunity from civil liability arising from any such act, communication, report, recommendation or disclosure, even where the information involved would otherwise be deemed privileged.
14.5 That such immunity shall apply to all acts, communications, reports, recommendations or disclosures performed or made in connection with this or any other health care institutions activities related, but not limited, to:
....
14.5–3 corrective action, including summary suspension, [and]
14.5–4 hearings and appellate reviews[.]
During the time period in question, Dr. Remillard was Gila Regional's Chief Medical Officer (“CMO”), Dr. Koury also served as the head of its Peer Review Committee (“PRC”), and by December 29, 2008 he was the acting Chief of Staff (which automatically made him head of the MEC), see Doc. 160, Ex. B; Dr. Sergeant was Gila Regional's acting Chief of Staff/head of the MEC 2 in November 2008, and a member of the MEC; Dr. Donnell was the Hearing Officer who presided over the “Fair Hearing;” Dr. Montoya was a member of the Board of Trustees and also attended a meeting of the MEC and served on the PRC, see Doc. 44–2 at 3; id. 44–2 at 8; and Mr. White was the Chairman of the Board of Trustees. See Doc. 196 at 3–4, ¶¶ 4–9; Doc. 199 at 7–8, ¶¶ 4–9. Dr. Deyhle was an Outside Peer Reviewer hired by Gila Regional to conduct an independent review of several of Plaintiff's patients' medical records, but it is undisputed that Deyhle did not conduct his review until February 6, 2009, two days after the Board of Trustees finally voted to permanently suspend Plaintiff's hospital privileges. See Doc. 44, Exs. M1, M2, M5–M13; Doc. 46, Exs. M3, M4; Doc. 124, Ex. 1 (Deyhle Aff.).
Plaintiff admits that he agreed to be bound by the Bylaws, including this section of the immunity provision: “there shall, to the fullest extent permitted by law, be absolute immunity from civil liability arising from any such act, communication, report, recommendation or disclosure, even where the information involved would otherwise be deemed privileged.” He contends, however, without citing any legal authority in support, that the words “to the fullest extent of the law” limits absolute immunity to only those situations in which the protected individuals have not violated a law, including the Constitution, HCQIA, or New Mexico's Review Organization Immunity Act. See Doc. 199 at 9–11. The Court concludes that Plaintiff's interpretation is not a sound one. The provision provides absolute immunity from suit—not just from liability—and if interpreted the way Plaintiff argues, a person protected by the immunity clause would have to first undergo the burden and expense of proving at trial that he did not, in fact, violate one of these laws—which would negate the very purpose of the immunity provision. The words “to the fullest extent permitted by law” refers to the law of absolute...
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