Takieh v. Banner Health

• Decision Date: 27 January 2021
• Docket Number: No. CV-19-05878-PHX-MTL,CV-19-05878-PHX-MTL
• Citation: 515 F.Supp.3d 1026
• Court: U.S. District Court — District of Arizona
• Parties: Seyed Mohsen SHARIFI TAKIEH, Plaintiff, v. BANNER HEALTH, et al., Defendants.

515 F.Supp.3d 1026

Seyed Mohsen SHARIFI TAKIEH, Plaintiff,

v.BANNER HEALTH, et al., Defendants.

No. CV-19-05878-PHX-MTL

United States District Court, D. Arizona.

Signed January 27, 2021

William A. Miller, Law Office of William A. Miller, Stephen Darrell Smith, Law Office of Stephen D. Smith LLC, Scottsdale, AZ, for Plaintiff.

Andrew S. Gordon, Katherine Louise Hyde, Keith Beauchamp, Coppersmith Schermer & Brockelman PLC, Phoenix, AZ, for Defendants Banner Health, Janice Cohen Dinner, Michael O'Connor, Peter Fine, Christopher Volk.

Jared Lynn Sutton, Randall Papetti, Lewis Roca Rothgerber Christie LLP, Phoenix, AZ, for Defendants Michael O'Meara, Unknown O'Meara, Stephen Hu, Unknown Hu, Steven Maxfield, Unknown Maxfield, James Lyons, Unknown Lyons.

Keith Beauchamp, Coppersmith Brockelman PLC, Phoenix, AZ, for Defendants Dean M. Dinner, Rebecca Ailes-Fine.

ORDER

Michael T. Liburdi, United States District Judge Before the Court are fully briefed Motions to Dismiss (the "Motions") filed by three groups of Defendants. (Docs. 53–55.) The Court rules as follows.

I. BACKGROUND

The First Amended Complaint ("FAC") alleges the following facts, which the Court takes as true for purposes of resolving the Motions. See Everest & Jennings, Inc. v. Am. Motorists Ins. Co. , 23 F.3d 226, 228 (9th Cir. 1994). Plaintiff Seyed Mohsen Sharifi Takieh, M.D., ("Dr. Sharifi") is an Iranian immigrant of Arab descent. (Doc. 50 ("FAC") ¶ 32.) For 13 years, Dr. Sharifi maintained active medical staff membership and clinical privileges at several hospitals within Defendant Banner Health's ("Banner") network. (Id. ¶ 123.) A Physician Services Agreement ("PSA") governed Dr. Sharifi's relationship with each hospital. (Id. ¶ 125.) In December 2018, following a 21-month investigation, Banner revoked Dr. Sharifi's PSAs and terminated his clinical privileges. (Id. ¶¶ 233, 351–53.)

In this lawsuit, Dr. Sharifi alleges Banner revoked his PSAs because of a racially motivated campaign pursued by Defendants Michael O'Meara, M.D., Janice Dinner, Stephen Hu, M.D., Steven Maxfield, M.D., James Lyons, M.D., Michael O'Connor, M.D., Peter Fine, and Christopher Volk. (Id. ¶¶ 88–89, 390.) At the time relevant to this action, Dr. O'Meara was the acting President of Medical Staff at Banner Baywood Medical Center ("BBMC"), Ms. Dinner was Banner's Senior Associate General Counsel, Dr. Lyons was Co-Executive Vice President of Southwest Diagnostic Imaging, Dr. O'Connor was BBMC's Chief Medical Officer, Mr. Fine was Banner's Chief Executive Officer, and Mr. Volk was a member of Banner's governing board. (Id. ¶¶ 6, 8, 13, 15, 17–18.)

The FAC's allegations date back to 2009. At that time, Dr. Maxfield was the head of Banner's Interventional Radiology Department and is alleged to have referred a disproportionate number of Dr. Sharifi's cases to peer review.¹ (Id. ¶¶ 43, 141, 145.) Larry Spratling, Banner's former Chief Medical Officer, "suspected that Maxfield's criticism was racially motivated." (Id. ¶ 44.) Spratling advised Dr. Sharifi to write Dr. Maxfield a letter to raise his concerns about possible abuses of the peer review process. (Id. ) Dr. Sharifi wrote the letter. (Id. ¶ 45.) The "unwarranted" peer review then ceased. (Id. )

Five years later, in November 2014, Dr. Sharifi testified against Banner in a wrongful death action. (Id. ¶ 58.) After his testimony, Defendants allegedly "planned and initiated a plot to permanently rid Banner of Dr. Sharifi." (Id. ¶ 59.)

The "plot" began in 2015 with claims of sexual harassment, which Dr. O'Meara and Ms. Dinner are alleged to have manufactured. (Id. ¶¶ 166–84.) Specifically, Human Resources at BBMC received and investigated staff complaints of sexual harassment against Dr. Sharifi. (Id. ¶ 181.) Following the investigation, Dr. O'Meara ordered Dr. Sharifi to stop inviting Banner employees into his office and prohibited him from texting Banner employees or asking for their cellphone numbers. (Id. ¶ 182.) Those "draconian prohibitions," the FAC alleges, facilitated Defendants’ efforts "to spread lies and misrepresentations about Dr. Sharifi." (Id. ¶ 184.)

Also in 2015, a sonographer witnessed a conversation between Dr. O'Meara and Dr. O'Connor relating to Dr. Sharifi.² (Id. , Ex. C ("Atencio Decl.") at 1.) Dr. O'Connor is alleged to have stated: "Dr. Sharifi is a Muslim Iranian terrorist who kills patients with his venous procedures

and must be punished first and then removed from Banner. He testified against Banner in a case at [Banner] Gateway [Medical Center]." (Id. ) Dr. O'Meara allegedly smiled and replied that he would "pull the trigger." (Id. ) Dr. O'Meara continued: "Osamas have no place at Banner.... Janice [Dinner] will set them up for [the Board of Medical Examiners]." (Id. )

Next, in January 2017, Dr. O'Connor allegedly prevented Dr. Sharifi from performing a procedure on a patient at BBMC. (FAC ¶¶ 207–08.) To bypass Dr. O'Connor's authority, Dr. Sharifi performed the procedure at a different Banner facility. (Id. ¶ 215.) Dr. Sharifi reported Dr. O'Connor to Banner's Chief Clinical Officer on grounds of patient care concerns and concerns as to Dr. O'Connor's judgment in February 2017. (Id. ¶¶ 221–25.)

One month later, the Medical Executive Committee ("MEC") at BBMC initiated a peer review of three cases in which Dr. Sharifi provided medical care. (Id. ¶¶ 233–40.) The investigation is alleged to have been initiated by Dr. O'Connor as retaliation for Dr. Sharifi reporting him to Banner's Chief Clinical Officer. (Id. ¶¶ 267, 273, 354, 366.) A Cardiology Committee at BBMC completed the peer review and found reckless behavior in two cases. (Id. ¶¶ 291–92.) Dr. Sharifi appealed the "reckless" findings, which led to the Cardiology Committee changing the initial scoring "to not ‘reckless’ in one case and ‘entirely dismissed’ in another." (Id. ¶¶ 293–94.)

While the appeal was pending, the MEC considered the Cardiology Committee's initial findings and deemed further investigation warranted. (Id. ¶ 297.) The MEC referred 16 of Dr. Sharifi's cases for external review. (Id. ) Dr. Sharifi, through counsel, objected to the external reviewer's qualifications. (Id. ¶ 304.) But, Ms. Dinner is alleged to have "orchestrated" an amendment to the BBMC Medical Staff Bylaws (the "Bylaws"), which changed the "requirements of the external reviewer." (Id. ¶¶ 303, 408.)

In June 2017, the MEC examined the results of the external review and imposed corrective action against Dr. Sharifi based on "patient care and record keeping concerns." (Id. ¶ 306.) Dr. Sharifi challenged the corrective action and presented a defense to the MEC. (Id. ¶ 307.) The MEC—having considered the results of the external review, three expert reports in support of Dr. Sharifi, a rebuttal expert report, portions of Dr. Sharifi's 2009 letter to Dr. Maxfield, and the 2015 sexual harassment investigation—proposed that Dr. Sharifi voluntarily agree to prospective approval and retroactive review of each case he performed. (Id. ¶¶ 309, 319, 321–22.) Dr. Sharifi refused. (Id. ¶ 326.) The MEC then imposed the restrictions as corrective action. (Id. ¶ 338.)

Soon after, an internal medicine physician overheard two conversations relating to Dr. Sharifi. (Id. ¶¶ 29–30, 81–85, 373–77, 381–82, Ex. A ("Rose Decl.") ¶¶ 8–17, 23–25.) First, the internist witnessed Dr. O'Meara "become livid" in response to a nurse's request to consult Dr. Sharifi. (FAC ¶ 381.) Dr. O'Meara is alleged to have stated: "Dr. Sharifi has been suspended for killing patients [ ]. He is a terrible doctor and nobody should refer to him anymore. I have reported him to the [Board of Medical Examiners]." (Rose Decl. ¶ 23.) Dr. O'Meara continued:

This f...ing Iranian has taken the whole damn referrals. Just look. I've suspended him and he is still getting referrals on our patients. Unbelievable. In this day and age that Muslims are hiding, he has rejected the stipulation agreement of the Hospital. Dinner and the whole Board are going to teach him a lesson that he won't forget.

(Id. ¶ 25.)

Second, the internist overheard a conversation between Dr. Hu, Dr. Lyons, and Dr. Maxfield in September or October of 2017. (FAC ¶¶ 30, 81–83, 373–78; Rose Decl. ¶¶ 3, 8–17.) During the conversation, Dr. Hu allegedly stated he was "nervous about making [ ] false allegations against Sharifi." (Rose Decl. ¶ 8.) Dr. Maxfield is alleged to have encouraged Dr. Hu to "F ... this F...ing Iranian." (Id. ¶ 17.) Dr. Maxfield further stated Dr. Sharifi had "cut[ ] into [their] business" and "taken away [their] DVT practice." (Id. ¶¶ 9, 17.) In addition, the FAC indicates that "Maxfield, Hu, and Lyons ... were upset that Dr. Sharifi was the only practitioner with [interventional radiology] privileges at BBMC who directly competed with them." (FAC ¶ 143.)

In November 2017, Dr. Sharifi requested a Fair Hearing to challenge the MEC's corrective action. (Id. ¶¶ 339–40.) During a prehearing conference, Dr. Sharifi and counsel for the MEC acknowledged a flaw in the Bylaws, which prevented a hearing committee from being selected. (Id. ¶ 340.) Dr. Sharifi proposed that the parties appoint the hearing committee by mutual agreement. (Id. ¶ 344.) Instead, BBMC amended the Bylaws and removed the flawed provision. (Id. ¶ 347.) The hearing committee was subsequently appointed. (Id. ¶¶ 349–50.) Ms. Dinner is alleged to have appointed "her good friend" as the hearing officer to "sway" the hearing panel. (Id. )

In September 2018, the Fair Hearing occurred.³ (Id. , Ex. D ("Baker Decl.") ¶ 4.) Dr. Hu is alleged to have stood outside the hearing to "trash Dr. Sharifi" and "intimidate any witnesses or others who came to support him." (FAC ¶ 333.) One individual, whose father was treated by Dr. Sharifi, intended to testify on Dr. Sharifi's behalf. (Id. ¶ 334.) But, after hearing Dr. Hu "rant about Dr. Sharifi killing and paralyzing his patients," she abandoned her plan to testify. (Id. ¶¶ 335–36; Baker Decl. ¶¶ 9–11, 14.)

After the Fair Hearing, in November or December 2018, a...