Pac. Radiation Oncology, LLC v. Queen's Med. Ctr.

• Decision Date: 20 March 2012
• Docket Number: Civil No. 12–00064 LEK–KSC.
• Citation: 861 F.Supp.2d 1170
• Parties: PACIFIC RADIATION ONCOLOGY, LLC, a Hawai'i Limited Liability Corporation, et al., Plaintiffs, v. The QUEEN'S MEDICAL CENTER, a Hawai'i Non–Profit Corporation, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

861 F.Supp.2d 1170

PACIFIC RADIATION ONCOLOGY, LLC, a Hawai'i Limited Liability Corporation, et al., Plaintiffs,

v.The QUEEN'S MEDICAL CENTER, a Hawai'i Non–Profit Corporation, et al., Defendants.

Civil No. 12–00064 LEK–KSC.

United States District Court,

D. Hawai‘i.

March 20, 2012.

Clare E. Connors, Loretta A. Sheehan, Mark S. Davis, Matthew C. Winter, Michael K. Livingston, Davis Levin Livingston Grande, Honolulu, HI, for Plaintiffs.

Claire Wong Black, Clyde J. Wadsworth, Paul Alston, William S. Hunt, Alston Hunt Floyd & Ing, Honolulu, HI, Daniel M. Mulholland, III, Horty Springer

and Mattern, Pittsburg, PA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

LESLIE E. KOBAYASHI, District Judge.

On January 27, 2012, Plaintiffs Pacific Radiation Oncology, LLC, a Hawai'i Limited Liability Corporation (“PRO”), PRO Associates, LLC, a Hawai'i Limited Liability Corporation (“PROA”, together with PRO “the LLCs”), and John Lederer, M.D., Individually and as a Manager of the LLCs appearing for the Pacific Radiation Oncology Physicians (collectively “Plaintiffs”) ¹ filed their Motion for a Temporary Restraining Order, or in the Alternative, for a Preliminary Injunction (“Motion”) ² with their complaint in state court. [Dkt. nos. 1–1 (complaint), 1–3 to 1–19 (Motion and all supporting materials).] Defendants The Queen's Medical Center, a Hawai'i Non–Profit Corporation, Queen's Development Corp, a Hawai'i for Profit Corporation, and the officers and/or trustees of Queen's Medical Center, in their individual and official capacities (collectively “Defendants”) removed this action on January 31, 2012, and filed their memorandum in opposition to the Motion on February 2, 2012. [Dkt. nos. 1, 14.] Plaintiffs filed their reply on February 8, 2012. [Dkt. no. 30.] Also on February 8, 2012, Defendants filed their Submission of Affidavits for Direct Examination (“Defendants' Direct Evidence”). [Dkt. no. 29.] Plaintiffs filed a Compendium of Plaintiffs' Evidence (“Plaintiffs' Direct Evidence”) on February 9, 2012. [Dkt. no. 31.] On February 13, 2012, Defendants filed their Submission of Supplemental Affidavits for Direct Examination (“Defendants' Supplemental Evidence”), and Plaintiffs filed their Second Submission of Affidavits (“Plaintiffs' Supplemental Evidence”). [Dkt. nos. 36, 38.] Defendants also filed a Notice of Supplemental Authority on February 10, 2012, and a Request for Judicial Notice (“RJN”) on February 14, 2012. [Dkt. nos. 35, 39.]

This matter came on for hearing on February 14, 2012. Appearing on behalf of Plaintiffs were Mark Davis, Esq., Loretta Sheehan, Esq., and Clare Connors, Esq. Dr. Lederer was also present. Appearing on behalf of Defendants were Paul Alston, Esq., Claire Wong Black, Esq., and Daniel Mulholland, III, Esq. ³ As ordered in this Court's February 22, 2012 preliminary ruling, Plaintiffs filed a supplemental memorandum on March 5, 2012, and Defendants filed their supplemental memorandum on March 9, 2012. On March 12, 2012, this Court held a status conference to discuss the issues addressed in the supplemental memoranda. After careful consideration of the Motion, supporting and opposing memoranda, the evidence presented by both parties, and the arguments of counsel, Plaintiffs' Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.

BACKGROUND

The factual and procedural background of this case, as well as the parties' arguments in the Motion and Memorandum in Opposition, are set forth in this Court's TRO Order. 2012 WL 381209, at *1–4. This Court granted Plaintiffs' request for a TRO to the extent that the Court ordered

Defendants to allow Plaintiffs to perform the following procedures on Plaintiffs' patients at the Queen's facilities, including any in-patient treatment, hospitalization, chart or record review, surgery, follow-up care and/or scheduling:

a. Volume Studies for permanent seed implants of the prostate;

b. Permanent seed implants;

c. High dose rate brachytherapy implants of the prostate and substitute tumors;

d. Endoluminal trachea, bile duct, (brachytherapy) radiation therapy;

e. Tomotherapy;

f. 4DCT;

g. Stereotactic body radiotherapy; and

h. Patients that need general anesthesia for external radiation including pediatric external beam radiation.

Id. at *8–9.⁴ The TRO Order provided that the temporary restraining order would remain in effect until this Court issued its ruling on Plaintiffs' request for a preliminary injunction.⁵

The following is a summary of the relevant portions of the parties' submissions filed after the Court issued the TRO Order.

I. Plaintiffs' Reply

Plaintiffs emphasize that the scope of the preliminary injunction that they seek is very limited. They seek an order requiring Defendants to allow Plaintiffs to perform the Listed Procedures at The Queen's Medical Center (“Queen's” or “QMC”), but only until Plaintiffs complete their efforts to move their practice out of Queen's facilities. Plaintiffs have already begun the process of securing the necessary equipment and clinical privileges at alternate facilities, and Plaintiffs estimate they will be able to perform some of the Listed Procedures at another facility within four months, but the remaining procedures may take as long as ten months. [Reply at 1 (citing Decl. of John Lederer, M.D. at ¶ 32).] Plaintiffs, however, state that it is not possible for Plaintiffs to give a definite time frame when the services will be available at the alternate facilities. Plaintiffs emphasize that, until the services can be safely performed elsewhere, Queen's is the only facility where the Listed Procedures can be performed. Further, the procedures are a matter of life and death for Plaintiffs' patients.

Plaintiffs argue that the issue before the Court is not whether Defendants had a right to move Queen's radiation oncology department to a closed-department model. Plaintiffs only challenge the manner in which Defendants made that decision and how Defendants implemented that decision. Plaintiffs contend that they have established a likelihood of success on the merits of their claims that Defendants' actions in adopting and implementing the closed-department model violated Plaintiffs' due process rights and constituted various violations of Haw.Rev.Stat. Chapter 480.

Plaintiffs argue that, without a preliminary injunction allowing Plaintiffs to use Queen's facilities to perform the Listed Procedures on their patients, irreparable harm will result. Plaintiffs also argue that the public interest weighs in favor of a preliminary injunction because the Listed Procedures can only be performed at Queen's and because there are certain therapies which only the PRO physicians are qualified to perform. Thus, without a preliminary injunction, any patient requiring one of those therapies will not be able to receive that treatment from a qualified physician in Hawai'i. Plaintiffs argue that Defendants will not suffer any harm if the Court enters a preliminary injunction because Queen's will be paid in full for all of Queen's charges associated with procedures that Plaintiffs perform at Queen's facilities.

Plaintiffs therefore urge the Court to grant a preliminary injunction allowing Plaintiffs to perform the Listed Procedures at Queen's until those procedures are available at alternative facilities.

II. Defendants' Direct Evidence

Defendants submitted Affidavits for Direct Examination from the following witnesses: 1) Darlena Chadwick; 2) Peter Bryant Greenwood, M.D.; 3) Emily Hirata; 4) Scott Moon, M.D.; 5) Randy Talavera; and 6) Arthur Ushijima. [Dkt. nos. 29–1 to 29–5, 29–8.]

Ms. Chadwick is the Vice President of Patient Care for Oncology, Women's Health, Neuroscience, Pathology and Professional Services at Queen's. She, inter alia, oversees Queen's patient care programs, policies, and procedures. [Def.'s Direct Evid., Attch. A (Aff. for Direct Exam. of Darlena Chadwick (“Chadwick Aff.”)), at ¶¶ 1–2.] Ms. Chadwick testified that, in recent years, Queen's received numerous complaints from patients that PRO physicians were transferring patients they initially saw at Queen's to PRO affiliated facilities for no apparent medical reason and without an affirmative request from the patient. These patients reported that they were dissatisfied with certain aspects of the post-transfer services. In addition, Queen's received complaints from referring physicians who were not notified when the PRO physicians transferred patients. Ms. Chadwick asserts that this jeopardized the continuity of patient care. [ Id. at ¶¶ 12–13.]

At least in part due to these complaints, Queen's convened the task force which ultimately recommended that Queen's transition to a closed-department model for its radiation oncology department. In the process, the task force identified several concerns raised by the practice of transferring Queen's patients for no medical reason. [ Id. at ¶¶ 14–15, 19.] These concerns included: “QMC patients that are transferred to PRO facilities no longer receive the benefit of QMC's stringent quality control measures and safety precautions[;]” [ id. at ¶ 17;] the practice “caused confusion and discord on the part of both patients and referring physicians[,] disrupting the continuity of care”; [ id. at ¶ 18;] and Queen's ancillary services are not available to patients who have been transferred to PRO affiliated facilities [ id. at ¶ 19]. Based on the task force's findings and recommendations, the Queen's Board of Directors adopted a resolution providing that the radiation oncology department would be a closed department. [ Id. at ¶ 22.]

Peter Bryant–Greenwood, M.D., is a physician who has been the Chairman of Queen's Credentialing Committee for physicians since January 2011. [Def.'s Direct Evid., Attch. B (Aff. for Direct Exam. of Peter Bryant–Greenwood, M.D. (“Greenwood Aff.”)), at ¶¶ 1–2.] He was part of the Queen's task force and, through the task...