Sokol v. Akron General Medical Center

• Decision Date: 22 April 1999
• Docket Number: No. 97-4323,97-4323
• Citation: 173 F.3d 1026
• Parties: David M. SOKOL, M.D., Plaintiff-Appellee, v. AKRON GENERAL MEDICAL CENTER, Defendant-Appellant, Daniel P. Guyton, M.D.; Michael A. Oddi, M.D.; Cardio-Thoracic and Vascular Surgeons, Inc., Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1026

173 F.3d 1026

David M. SOKOL, M.D., Plaintiff-Appellee, v. AKRON GENERAL MEDICAL CENTER, Defendant-Appellant Daniel P. Guyton, M.D.; Michael A. Oddi, M.D. Cardio-Thoracic and Vascular Surgeons, Inc., Defendants.

No. 97-4323.

United States Court of Appeals Sixth Circuit.

Argued Dec. 15, 1998.

Decided April 22, 1999.

Scott E. Salsbury (argued and briefed), Roetzel & Andress, Akron, Ohio, Breaden M. Douthett (briefed), Roetzel & Andress, Cleveland, Ohio, for Defendant-Appellant.

Michael J. Jordan (briefed), Barbara R. Marburger (argued), Walter & Haverfield, Cleveland, Ohio, George W. Schmedlen (briefed), Waldheger, Coyne & Associates, Westlake, Ohio, for Plaintiff-Appellee.

Before: MERRITT, NORRIS, and GILMAN, Circuit Judges.

ALAN E. NORRIS, J., delivered the opinion of the court, in which GILMAN, J., joined. MERRITT, J. (pp. 1032-33), delivered a separate dissenting opinion.

ALAN E. NORRIS, Circuit Judge.

Plaintiff David M. Sokol, M.D., brought federal antitrust and state law claims against defendants Akron General Medical Center ("Akron General"), Daniel P. Guyton, M.D., Michael A. Oddi, M.D., and Cardio-Thoracic and Vascular Surgeons, Inc. Based upon one of his state law claims, plaintiff also sought an injunction to prevent Akron General from instituting limitations on his medical staff privileges and from reporting its decision to limit his privileges to any state or federal reporting agency, public or private entity, or third-party payor. After the parties consented to her jurisdiction over the motion for injunctive relief, the magistrate judge issued a permanent injunction, and Akron General filed an interlocutory notice of appeal. ¹

I.

Plaintiff is a cardiac surgeon on staff at Akron General. The Medical Council at Akron General received information in the mid-1990's indicating that plaintiff's patients had an excessively high mortality rate. Concerned about plaintiff's performance of coronary artery bypass surgery ("CABG"), the Medical Council created the CABG Surgery Quality Task Force in 1994 to conduct a review of the entire cardiac surgery program at Akron General. The Task Force hired Michael Pine, M.D., a former practicing cardiologist who performs statistical risk assessments for evaluating the performance of hospitals. At a presentation in 1994 attended by plaintiff, Dr. Pine identified plaintiff as having a mortality rate of 12.09%, a "high risk-adjusted rate." Risk adjustment analyzes the likelihood that a particular patient or group of patients will die, as compared to another patient or group of patients. Dr. Pine stated in a summary of his findings that the predicted mortality rate for plaintiff's CABG patients was 3.65%, and plaintiff's "high mortality rate was of great concern and warrants immediate action."

James Hodsden, M.D., Chief of Staff at Akron General, requested that the Medical Council consider plaintiff for possible corrective action. Pursuant to the Medical Staff Bylaws, the Medical Council forwarded the complaint to the chairman of plaintiff's department, who appointed an Ad Hoc Investigatory Committee to review plaintiff's CABG surgery performance. The Medical Staff Bylaws require the Investigatory Committee to interview the staff member being reviewed and provide the Medical Council with a record of the interview and a report. The Investigatory Committee met with plaintiff three times. At the first meeting, the Investigatory Committee identified the issues before it to include addressing questions raised by plaintiff about the Pine study and determining the cause of plaintiff's excessive mortality rate. At the second meeting, the Investigatory Committee examined the mortality rate of plaintiff's patients using the Society of Thoracic Surgeons ("STS") methodology. Under STS methodology, the Investigatory Committee, like Dr. Pine, determined that plaintiff's CABG risk-adjusted mortality rate was roughly three times higher than the predicted mortality rate. The Investigatory Committee discussed the results of this analysis with plaintiff at the meeting.

At the third meeting, the Investigatory Committee reviewed with plaintiff various records of his twenty-six CABG patients who died either during or around the time of surgery. The Investigatory Committee determined that one factor leading to the deaths of these patients was poor case selection, meaning plaintiff did not adequately screen out those patients for whom CABG surgery was too risky. The Investigatory Committee also found that the excessive number of deaths may have been due to insufficient myocardial protection, which led to heart attacks.

The Investigatory Committee ultimately reported to the Medical Council that plaintiff's mortality rate was excessively high and that the two principal causes for this high mortality rate were poor case selection and "improper myocardial protection." The Investigatory Committee recommended that all cases referred to plaintiff for CABG surgery undergo a separate evaluation by another cardiologist who could cancel surgery felt to be too risky. It also recommended that plaintiff not be permitted to do emergency surgery or serve on "cathlab standby" and that there be an ongoing review of his CABG patients by a committee reporting to the Medical Council. Finally, it recommended that a standardized myocardial protection protocol be developed, and that all cardiac surgeons should be required to comply with the protocol.

Plaintiff appeared before the Medical Council on November 21, 1996, and the Medical Council voted to implement the recommendations. Under the Akron General Medical Staff Bylaws, when the Medical Council makes a decision adverse to the clinical privileges of a staff member, the staff member must be given notice of the decision of the Medical Council, and the notice shall specify "what action was taken or proposed to be taken and the reasons for it." This notice allows the staff member to prepare for a hearing to review the Medical Council's decision. The content of the letter sent plaintiff is set out more fully in section II.A. of this opinion.

Plaintiff and representatives from the Medical Council appeared before an Ad Hoc Hearing Committee on March 27, 1997. Plaintiff was represented by legal counsel, submitted exhibits, and testified on his own behalf. Dr. Gardner, a member of the Investigatory Committee, testified that although the Pine study and the STS methodology tended to underestimate the actual risk in some of plaintiff's cases, the Investigatory Committee concluded that the STS risk stratification tended to corroborate the Pine analysis. When asked about the Medical Council's determination that plaintiff engaged in poor case selection, Dr. Gardner had difficulty identifying specific cases that should not have had CABG surgery, yet he stated that "in the aggregate" there was poor case selection.

The Hearing Committee recommended that the Medical Council restore all plaintiff's CABG privileges. The Medical Council rejected the recommendation of the Hearing Committee and reaffirmed its original decision. In accordance with the Bylaws, plaintiff appealed the Medical Council's determination to the Executive Committee of the Board of Trustees of Akron General. This Committee affirmed the Medical Council's decision. Plaintiff then asked the district court for injunctive relief against Akron General.

II.

We review a grant of a permanent injunction for an abuse of discretion. See In re Dublin Securities, Inc., 133 F.3d 377, 380 (6th Cir.1997), cert. denied, Terlecky v. Hurd, --- U.S. ----, 119 S.Ct. 45, 142 L.Ed.2d 35 (1998). "A district court by definition abuses its discretion when it makes an error of law." Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

The magistrate judge cited two bases for imposing a permanent injunction. First, she concluded that plaintiff received insufficient notice of the grounds for the Medical Council's decision before the Hearing Committee meeting, and second, she found that the Medical Council's determination was arbitrary. The circumstances of this case warrant neither conclusion.

Under Ohio law, private hospitals are accorded broad discretion in determining who will enjoy medical staff privileges at their facilities, and courts should not interfere with this discretion "unless the hospital has acted in an arbitrary, capricious or unreasonable manner or, in other words, has abused its discretion." Bouquett v. St. Elizabeth Corp., 43 Ohio St.3d 50, 51, 538 N.E.2d 113, 114 (1989). However, hospitals must provide "procedural due process ... in adopting and applying" "reasonable, nondiscriminatory criteria for the privilege of practicing" surgery in the hospital. Khan v. Suburban Community Hospital, 45 Ohio St.2d 39, 39, 340 N.E.2d 398, 399 (1976) (syllabus by court) (cited by Bouquett, 43 Ohio St.3d at 53, 538 N.E.2d at 116).

A. Insufficient notice

This appeal requires us to examine the extent of the procedural protections afforded plaintiff under Ohio law. In addition to an appeals process, "[f]air procedure requires meaningful notice of adverse actions and the grounds or reasons for such actions" when a hospital makes an adverse decision regarding medical staff privileges. Christenson v. Mount Carmel Health, 112 Ohio App.3d 161, 172, 678 N.E.2d 255, 263 (1996); see also Gureasko v. Bethesda Hosp., 116 Ohio App.3d 724, 729, 689 N.E.2d 76, 79 (1996) (characterizing the process owed a physician by a hospital as "minimal"). Akron General's Medical Staff Bylaws require that notice of an adverse decision by the Medical Council state "what action was taken or proposed to be taken and the reasons for it" and thus do not contractually provide for a quality of notice exceeding that required by Ohio law.

The President of Akron General sent plaintiff a letter notifying him of the Medical Council's initial decision. The letter refers plaintiff to the minutes of the Medical...