Osuagwu v. Gila Reg'l Med. Ctr.

• Decision Date: 27 March 2012
• Docket Number: No. 11cv1 MV/SMV.,11cv1 MV/SMV.
• Citation: 850 F.Supp.2d 1216
• Parties: Chinonyerem OSUAGWU, Plaintiff, v. GILA REGIONAL MEDICAL CENTER, John Doe, and Jane Doe, Defendants.
• Court: U.S. District Court — District of New Mexico

850 F.Supp.2d 1216

Chinonyerem OSUAGWU, Plaintiff,

v.GILA REGIONAL MEDICAL CENTER, John Doe, and Jane Doe, Defendants.

No. 11cv1 MV/SMV.

United States District Court, D. New Mexico.

March 27, 2012.

Dr. Chinonyerem Osuagwu, Albuquerque, NM, pro se.

Candace J. Cavanaugh, Butt Thornton & Baehr PC, Albuquerque, NM, for Defendant Gila Regional.

MEMORANDUM OPINION AND ORDER

MARTHA VAZQUEZ, District Judge.

THIS MATTER is before the Court on Defendant Gila Regional Medical Center's Motion for Summary Judgment, filed August 8, 2011 [Doc. 57]. Having considered the record and undisputed facts, the parties' briefs, and the applicable law, I will deny the motion.

Pro se Plaintiff Dr. Chinonyerem Osuagwu sued Gila Regional and several individuals ¹ under 42 U.S.C. § 1983 for damages and injunctive relief, alleging violation of his due-process rights, defamation, and intentional infliction of emotional distress. He alleges that Gila Regional, through the actions and conduct of Don White (the Chairman of its Board of Trustees); Dr. Jean Remillard (its Chief Medical Officer); the individual members of its internal Peer Review Committee (“PRC”); the members of its Medical Executive Committee (“MEC”); the members of its Fair Hearing Committee (“FHC” or “panel”); and Ronald Dehyle ², an Outside Peer Reviewer, violated his civil rights when, without a reasonable belief that their actions were warranted by known facts, without a reasonable effort to obtain facts, and without following the process due to Plaintiff, the MEC and Board of Trustees temporarily and then indefinitely suspended his medical privileges and imposed harsh requirements for regaining those privileges, and Dr. Remillard filed notice of that adverse action with the National Practitioner Databank and the New Mexico Medical Board. Plaintiff also contends that the Defendants have tortiously damaged his reputation and intentionally inflicted emotional distress. The basis of Gila Regional's motion for summary judgment is that it, its committees, and all of the individual defendants, are “immune from suit under the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. §§ 11101– 11152 and the Review Organization Immunity Act (ROIA), N.M.S.A. 1978 §§ 41–9–1 to –7.” ³ Doc. 57 at 1.

I. APPLICABLE LEGAL STANDARDS

Under HCQIA, any health-care entity that takes final peer-review action ⁴ that adversely affects a physician's hospital privileges for a period longer than thirty days must report that final action to the state board of medical examiners. See42 U.S.C.A. § 11133(a)(1). The board of medical examiners must then report this information to the National Practitioner Data Bank. See45 C.F.R. § 60.11(b). The HCQIA also “provide[s] qualified immunity from damages actions for hospitals, doctors and others who participate in professional peer review proceedings.” Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1333 (10th Cir.1996). “[A] peer review participant is immune from private damage claims stemming from the peer review action if the peer-review action meets certain standards specified by Congress.”Id. Qualified immunity on the issue of damages is provided if the peer-review action was taken:

(1) in the reasonable belief that the action was in the 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 requirement of paragraph (3).

A professional review action shall be presumed to have met the preceding standards necessary for the protection set out in section 11111(a) of this title unless the presumption is rebutted by a preponderance of the evidence.

42 U.S.C. § 11112(a). But, unlike qualified immunity under 42 U.S. § 1983, HCQIA immunity is “immunity from liability only,” not immunity from suit. Decker v. IHC Hosps., Inc., 982 F.2d 433, 436 (10th Cir.1992); Summers v. Ardent Health Serv., L.L.C., 150 N.M. 123, ––––, 257 P.3d 943, 949 n. 3 (2011) (“HCQIA does not provide immunity from suits for injunctive or declaratory relief.”); 42 U.S.C. § 11111(a)(1) (limiting immunity to liability “in damages”). “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.” Bryan v. James E. Holmes Reg'l Med. Ctr., 33 F.3d 1318, 1332 (11th Cir.1994). Thus, if the evidence is undisputed,

a court might determine at an early stage of litigation that the defendant has met the [section 11112(a) ] standards, even though the plaintiff might be able to demonstrate that the professional review action was otherwise improper. At that point, it would be in order for the court to rule on immunity. In such a case, the court could still proceed to determine whether injunctive, declaratory, or other relief would be in order.

Id. at n. 24 (citing H.R.Rep. No. 903, at 12, reprinted in 1986 U.S.C.C.A.N. 6384, 6394).

Section 11112(b) of HCQIA more fully defines the minimum “adequate” notice and hearing procedures referred to in § 11112(a)(3). This subsection provides:

A health care entity is deemed to have met the adequate notice and hearing requirement of subsection (a)(3) of this section with respect to a physician if the following conditions are met (or are waived voluntarily by the physician):

(1) Notice of proposed action

The physician has been given notice stating—

(A)(i) that a professional review action has been proposed to be taken against the physician,

(ii) reasons for the proposed action,

(B)(i) that the physician has the right to request a hearing on the proposed action,

(ii) any time limit (of not less than 30 days) within which to request such a hearing, and

(C) a summary of the rights in the hearing under paragraph (3).

(2) Notice of hearing

If a hearing is requested on a timely basis under paragraph (1)(B), the physician involved must be given notice stating—

(A) the place, time, and date, of the hearing, which date shall not be less than 30 days after the date of the notice, and

(B) a list of the witnesses (if any) expected to testify at the hearing on behalf of the professional review body.

(3) Conduct of hearing and notice

If a hearing is requested on a timely basis under paragraph (1)(B)—

(A) subject to subparagraph (B), the hearing shall be held (as determined by the health care entity)—

(i) before an arbitrator mutually acceptable to the physician and the health care entity,

(ii) before a hearing officer who is appointed by the entity and who is not in direct economic competition with the physician involved, or

(iii) before a panel of individuals who are appointed by the entity and are not in direct economic competition with the physician involved;

(B) the right to the hearing may be forfeited if the physician fails, without good cause, to appear;

(C) in the hearing the physician involved has the right—

(i) to representation by an attorney or other person of the physician's choice,

(ii) to have a record made of the proceedings, copies of which may be obtained by the physician upon payment of any reasonable charges associated with the preparation thereof,

(iii) to call, examine, and cross-examine witnesses,

(iv) to present evidence determined to be relevant by the hearing officer, regardless of its admissibility in a court of law, and

(v) to submit a written statement at the close of the hearing; and

(D) upon completion of the hearing, the physician involved has the right—

(i) to receive the written recommendation of the arbitrator, officer, or panel, including a statement of the basis for the recommendations, and

(ii) to receive a written decision of the health care entity, including a statement of the basis for the decision.

A professional review body's failure to meet the conditions described in this subsection shall not, in itself, constitute failure to meet the standards of subsection (a)(3) of this section.

42 U.S.C. § 11112(b). In addition, HCQIA

confers immunity on any person who makes a report to the National Practitioner Data Bank ‘without knowledge of the falsity of the information contained in the report.’ 42 U.S.C. § 11137(c) (1994). Thus, immunity for reporting exists as a matter of law unless there is sufficient evidence for a jury to conclude the report was false and the reporting party knew it was false.

Brown, 101 F.3d at 1334.

When a defendant asserts HCQIA immunity in a motion for summary judgment, there is an “unconventional twist to the burden of proof in our summary judgment standard,” Sugarbaker v. SSM Health Care, 190 F.3d 905, 912 (8th Cir.1999), because HCQIA expressly entitles the defendants to a rebuttable presumption that the peer-review proceedings satisfied all four requirements of § 11112(a)(1)-(4) “unless the presumption is rebutted by a preponderance of the evidence,” § 11112(a). Thus, in resolving Gila Regional's motion for summary judgment, while reviewing the evidence in a light most favorable to Plaintiff, I must determine whether he has “satisfied his burden of producing evidence that would allow a reasonable jury to conclude that [Gila Regional's] peer review disciplinary process failed to meet the standards of HCQIA.” Bryan, 33 F.3d at 1334 (internalquotation marks omitted) (italics added); Brader v. Allegheny Gen. Hosp., 167 F.3d 832, 839 (3d Cir.1999) (accord). Another way of stating the summary-judgment standard is: “Might a reasonable jury, viewing the facts in the best light for [the plaintiff], conclude that he has shown, by a preponderance of the evidence, that the defendants' actions are outside the scope of § 11112(a)?” Bryan, 33 F.3d at 1334 (internal quotation marks omitted). If so, even if the Defendants rely on a medical expert who opines that...