Williams v. Univ. Med. Ctr. Of Southern Nev.

Decision Date25 February 2010
Docket NumberNo. 2:09-CV-00554-PMP-PAL.,2:09-CV-00554-PMP-PAL.
Citation688 F.Supp.2d 1134
PartiesCharles WILLIAMS, M.D., Plaintiff, v. UNIVERSITY MEDICAL CENTER OF SOUTHERN NEVADA; John Ellerton, M.D.; Board of Trustees of Umc; Rory Reid; Steve Sisolak; Tom Collins; Larry Brown; Lawrence Weekly; Chris Giunchigliani; Susan Brager; and Medical and Dental Staff of the University Medical Center of Southern Nevada, Defendants.
CourtU.S. District Court — District of Nevada

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jacob L. Hafter, Michael K. Naethe Law Office of Jacob Hafter & Associates Las Vegas, NV, for Plaintiff.

David Roger, District Attorneys Office Lisa J. Jolly, Lynn M. Hansen, Jimmerson Hansen, Las Vegas, NV, for Defendants.

ORDER

PHILIP M. PRO, District Judge.

Presently before the Court is Defendants' Motion for Summary Judgment as to All Claims (Doc. # 66), filed on November 12, 2009. Plaintiff filed an Opposition (Doc. # 70) on November 30, 2009. Defendants filed a Reply (Doc. # 81) on December 14, 2009.

The Court has detailed the facts in this action in the Court's concurrent Order on Plaintiff's Motion for Summary Judgment (Doc. # 53), and the Court will not repeat them here except as necessary to resolve the present motion. In this action, Plaintiff Charles Williams ("Williams") asserts against Defendants claims for due process violations under the United States Constitution (count one); antitrust violations (counts two, three, four, and five); tortious interference with business relationships and prospective business relations (count six); tortious interference with employment, trade, or profession (count seven) negligent interference with prospective economic advantage (count eight); breach of the covenant of good faith and fair dealing (count nine); negligence (count ten); defamation (count eleven); defamation per se (count twelve); libel (count thirteen); and slander (count fourteen).

Defendants now move for summary judgment on all of Williams' claims. Defendants argue that Defendant John Ellerton ("Ellerton") and Defendant Medical and Dental Staff ("Medical Staff) are not state actors, and Defendants UMC and the Board did not personally participate in any constitutional violations. Defendants also argue Williams lacks standing to bring antitrust claims. Defendants further argue that Williams has failed to present evidence on every essential element of his interference with prospective economic advantage or employment claims, Nevada does not recognize a claim for negligent interference with prospective economic advantage, and there is no contract upon which to base a claim for breach of the covenant of good faith and fair dealing. Defendants also argue they owe no duty to Williams to support a negligence claim and the defamation-related claims must fail because the report to the NPDB was true and privileged.

Williams opposes the motion, arguing Ellerton and the Medical Staff are state actors and all Defendants personally participated in the alleged constitutional violations, either directly or by ratifying other Defendants' conduct. Williams also contends the false NPDB report affects his future prospects sufficient to support an intentional interference claim. As to the breach of the covenant of good faith and fair dealing, Williams argues he was a party to and third party beneficiary of the Bylaws, which created a contract between Williams and Defendants. Williams also argues Defendants were negligent by failing to follow county law as set forth in the Bylaws.

As to the defamation-related counts, Williams argues the NPDB report's reference to at least three instances of airway mismanagement defamed him, as only two instances of airway management were at issue. Williams contends the report to the NPDB was not privileged because no professional review activity took place with respect to a third airway management issue. Further, Williams argues the duty to report includes a continuing duty to maintain accurate statements, and once Williams brought the report's inaccuracy to Defendants' attention, they should have amended the report.

I. LEGAL STANDARD

Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it might affect the outcome of a suit, as determined by the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). An issue is "genuine" if sufficient evidence exists such that a reasonable fact finder could find for the nonmoving party. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). Initially, the moving party bears the burden of proving there is no genuine issue of material fact. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002). After the moving party meets its burden, the burden shifts to the non-moving party to produce evidence that a genuine issue of material fact remains for trial. Id. The Court views all evidence in the light most favorable to the non-moving party. Id.

A. State Actors (Count One)

In a separate Order issued concurrently with this one, this Court already has ruled that Defendants Ellerton and Medical Staff are state actors when exercising the authority delegated to them by the Board. The Court therefore will deny Defendants' summary judgment motion on this basis.

B. Personal Participation (Count One)

There is no respondeat superior liability under 42 U.S.C. § 1983. Jones v Williams, 297 F.3d 930, 934 (9th Cir.2002). To be liable, the defendant must have personally participated in the alleged rights deprivation. Id. To make this showing with respect to an entity, a plaintiff must show some custom or policy of the entity was the driving force behind the violation or the person causing the violation had final policymaking authority. Botello v. Gammick, 413 F.3d 971, 978-79 (9th Cir. 2005).

No genuine issue of material fact remains that Defendant UMC did not personally participate in the alleged constitutional due process violation. Williams' only argument for UMC's participation is that UMC locked the doors at the Fair Hearing, thus preventing Williams' witness from appearing. Although Williams argues it "became apparent" that his witness did not appear at the Fair Hearing because UMC's outer doors had been locked, Williams cites to no evidence in the record to support this statement. Williams suggested at the Fair Hearing that one of his witnesses "probably" arrived but could not get in because the doors were locked. (PL's Mot. Summ. J. (Doc. # 53), Ex. U at 338.) Williams' counsel stated that he was expecting a witness to appear but she did not, and counsel did not know why she did not appear. (Id. at 404.)

Williams' and his counsel's speculation as to why the witness did not appear does not raise a genuine issue of material fact that UMC personally participated in a deprivation of Williams' due process rights. Williams could have provided an affidavit from the witness stating that she appeared but could not get in because UMC had locked the doors. Williams provides no such evidence, and thus it is pure specula- tion as to why the witness did not appear. There being no evidence in the record raising a genuine issue of material fact that UMC had any personal participation in any due process violation, the Court will grant Defendants' motion for summary judgment on count one as to Defendant UMC.

As to the Board, Williams offers four bases for personal participation. First, Williams argues the Board enacted the Bylaws which amount to the Board's official policy. However, Williams does not argue the Bylaws themselves are deficient, and consequently the Bylaws are not the moving force behind any due process violation. Second, Williams argues the Board should have realized Ellerton may not follow the Bylaws and therefore should have monitored his activities more closely. Williams presents no evidence suggesting the Board should have been aware Ellerton would not follow the procedures set forth in the Bylaws.

Third, Williams argues the Board has a policy of allowing the District Attorney to deprive physicians of their due process rights by not providing requested documentation. Williams cites only to his own situation, however, and this single alleged instance does not raise a genuine issue of material fact that the Board had any such policy. See Levine v. City of Alameda, 525 F.3d 903, 907 (9th Cir.2008). Moreover, Williams has presented no evidence the Board even was aware of the District Attorney's correspondence with Williams' counsel, much less that this conduct reflected Board policy.

Finally, Williams argues the Board ratified any due process violations when it affirmed the MEC's final decision. While perhaps this could support a finding of personal participation, Williams has not presented any evidence that he apprised the Board of any alleged procedural irregularities. Williams thus has not presented any evidence raising a genuine issue of material fact that the Board was aware of and then ratified any due process violations. The Court therefore will grant Defendants' motion for summary judgment on count one as to Defendant Board.

C. Standing to Bring Antitrust Claims (Counts Two, Three, Four, and Five)

To assert antitrust claims, the plaintiff must show "not merely injury to himself as a competitor, but rather injury to competition." Austin v. McNamara 979 F.2d 728, 739 (9th Cir.1992). Where there is no evidence of injury to competition, there is no cognizable antitrust injury. Id. Revocation of a doctor's privileges at a hospital at most "amount[s] to an informal and limited restraint on a single competitor in a single hospital," and thus does not constitute antitrust injury. Id. Williams does not respond to Defendants' motion for summary judgment on these...

To continue reading

Request your trial
19 cases
  • Med. Staff of Avera Marshall Reg'l Med. Ctr. v. Avera Marshall, A12–2117.
    • United States
    • Supreme Court of Minnesota (US)
    • December 31, 2014
    ...enforceable part of a contract, between a hospital and members of its medical staff. See, e.g., Williams v. Univ. Med. Ctr. of S. Nev., 688 F.Supp.2d 1134, 1142–43 (D.Nev.2010) ; Gianetti v. Norwalk Hosp., 211 Conn. 51, 557 A.2d 1249, 1255 (1989) ; Lo v. Provena Covenant Med. Ctr., 356 Ill.......
  • Phillips v. Clark Cnty. Sch. Dist.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • September 30, 2012
    ...contract and the law.” Allstate Ins. Co. v. Miller, 125 Nev. 300, 212 P.3d 318, 330 (2009); see also Williams v. Univ. Med. Ctr. of So. Nev., 688 F.Supp.2d 1134, 1145 (D.Nev.2010) (citing Bernard v. Rockhill Dev. Co., 103 Nev. 132, 734 P.2d 1238, 1240 (1987) (stating that “[b]ecause neglige......
  • Sara v. Saint Joseph Healthcare Sys., Inc., 2013–CA–001909–MR
    • United States
    • Court of Appeals of Kentucky
    • December 23, 2015
    ...the hospital's bylaws can constitute sufficient consideration to form a contract. See, e.g. Williams v. Univ. Med. Ctr. of S. Nevada, 688 F.Supp.2d 1134, 1141–42 (D.Nev.2010) ; Whalen v. Down East Cmty. Hosp., 980 A.2d 1252, 1254–55 (Me.2009) ; Lo v. Provena Covenant Med. Ctr., 356 Ill.App.......
  • Chudacoff v. Univ. Med. Ctr.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • June 21, 2013
    ...meeting of the minds, and consideration. Mack v. Estate of Mack, 125 Nev. 80, 206 P.3d 98, 108 (2009). In Williams v. University Medical Center of Southern Nevada, this Court predicted that Nevada would find that a hospital's bylaws can create “an enforceable contract between the hospital a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT