Williams v. UNIVERSITY MEDICAL CTR. OF SOUTHERN NV

• Decision Date: 25 February 2010
• Docket Number: No. 2:09-CV-00554-PMP-PAL.,2:09-CV-00554-PMP-PAL.
• Citation: 688 F. Supp.2d 1111
• Parties: Charles 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.
• Court: U.S. District Court — District of Nevada

688 F.Supp.2d 1111

Charles 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.

No. 2:09-CV-00554-PMP-PAL.

United States District Court, D. Nevada.

February 25, 2010.

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

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

ORDER

PHILIP M. PRO, District Judge.

Presently before the Court is Plaintiffs Motion for Partial Summary Judgment (Doc. # 53), filed on September 2, 2009. Defendants filed an Opposition (Doc. # 56) on September 21, 2009, and an errata (Doc. # 58) on September 27, 2009. Plaintiffs filed a Reply (Doc. # 61) on October 5, 2009. Defendants filed a Supplement (Doc. # 84) on December 16, 2009. The Court held a hearing on this motion on December 21, 2009. (Mins. of Proceedings (Doc. # 86).)

Also before the Court is Defendants' Motion for Summary Judgment on the Issue of Immunity Under HCQIA (Doc. # 67), filed on November 12, 2009. Plaintiff filed an Opposition (Doc. # 72) on November 30, 2009. Defendants filed a Reply (Doc. # 83) on December 14, 2009.

I. BACKGROUND

This case arises from Defendants' decision to suspend Plaintiff Charles Williams' ("Williams") privileges to practice at Defendant University Medical Center of Southern Nevada ("UMC"). Williams is an anesthesiologist who had medical privileges to work at several hospitals in Nevada, including Defendant UMC. Defendant John Ellerton ("Ellerton") is the Chief of Staff at UMC. Defendant Medical and Dental Staff of UMC ("Medical Staff") is a professional collegial body created by UMC's Bylaws through which physicians obtain privileges at UMC. The Bylaws also create the Medical Executive Committee ("MEC"), a body which is empowered to act on behalf of the Medical Staff. Defendant Board of Trustees of UMC consists of the Clark County Commissioners,¹ who act as UMC's Board and have final approval authority over UMC's Bylaws, as well as final review authority over the MEC's decisions to suspend or revoke a physician's privileges.

On March 1, 2005, a nurse named Diane Liebrader ("Liebrader") submitted a report regarding Williams to the UMC hotline, a dedicated phone line for physician and nurse complaints. (Defs.' Opp'n to Pl.'s Mot. Summ. J. (Doc. # 56) "Defs.' Opp'n", Ex. J.) According to the hotline complaint, a patient was coming back from having a tracheostomy and peg tube placed. (Id.) Liebrader stated that Williams was manually ventilating the patient with an "ambu bag" with one hand while trying to connect the patient to the ventilator with the other, but he did not appear to know how to get the ventilator to work. (Id.) Liebrader stated Williams continued to ventilate the patient manually using the ambu bag until he suddenly disconnected the ambu bag, laid it on the bed, and walked toward the door to speak with the respiratory therapist who had just arrived. (Id.) Liebrader grabbed the ambu bag and started ventilating the patient, and when Williams returned to the room, she asked him why he had left the room without instructing her to ventilate the patient. (Id.) According to Liebrader, Williams became antagonistic with her. (Id.)

Upon learning about the hotline complaint against him, Williams called the hotline and spoke with Kim Voss ("Voss"), Executive Director of Performance Improvement in Medical Staff Services. (Pl.'s Mot. Summ. J. (Doc. # 53) "Pl.'s Mot.", Ex. T at 83-84.) Williams expressed that he did not think it was appropriate for the nurse to use the hotline to complain about him. (Id. at 84.) According to Voss, Williams was belligerent, and kept interrupting her and telling her the process was flawed. (Id. at 84, 91.) Voss informed Williams he could provide a response to the hotline complaint but Williams did not do so. (Id. at 86.)

On March 7, Dr. Gary Shen ("Shen") wrote a letter to UMC's Chief of Staff, Defendant Ellerton, regarding Shen's concerns related to a surgery performed on patient "WP"² on March 5 for which Williams was the anesthesiologist. (Defs.' Opp'n, Ex. H.) According to Shen, the surgery was uneventful, but as he was dressing the wound, the patient woke up from anesthesia and Williams extubated the patient. (Id.) "It became clear immediately that the patient could not protect his airway and Dr. Williams was unable to re-intubate." (Id.) The surgical team performed an emergency cricothyroidotomy and an airway was re-established. (Id.) During this episode, the patient arrested and was resuscitated, but suffered anoxic brain injury. (Id.)

Ellerton telephoned Williams on March 7 and advised Williams his privileges were summarily suspended for his actions in the WP case. (Pl.'s Mot., Ex. U at 315.) That same day, Ellerton sent Williams written confirmation of his summary suspension from UMC. (Defs.' Opp'n, Ex. C.) The letter contained no information other than advising Williams that he was summarily suspended. (Id.)

On March 15, Ellerton sent Williams a letter notifying Williams that the MEC would review Williams' summary suspension under the terms of UMC's Bylaws. (Defs.' Opp'n, Ex. A.) Ellerton's letter advised Williams to "be prepared to discuss with the MEC the following:"

1. What happened to patient WP in the time leading up to and including the emergency chricothyroidotomy?

2. The hotlines involving the premature extubation of patients. Why did you extubate the patients and leave indicating it was the nurses' problem to ensure airway management in these patients?

3. Your interaction with the Executive Director of Performance Improvement and Medical Staff concerning the hotline complaints filed about your actions. Specifically, explain why you declined to dictate responses on the confidential Performance Improvement hotline and instead threatened to settle this your own way. Your conversation was interpreted as being threatening; therefore, we need an explanation for this potentially disruptive behavior.

(Defs.' Opp'n, Ex. A.)

On March 19, Williams responded by giving his version of events related to patient WP, explaining that airway management issues with this patient were unexpected, and likely due to bleeding in the upper airway and an enlarged epiglottis.³ (Defs.' Opp'n, Ex. B.) Williams also suggested the surgery team was unexpectedly slow in establishing the surgical airway, as they made three unsuccessful attempts at placing the tube. (Id.)

As to the hotline issue, Williams identified two possible events that may have resulted in a hotline complaint. According to Williams, the first event occurred when a patient was returned to the room, and Williams was manually ventilating the patient with an ambu bag. (Id.) Williams was ventilating with one hand while trying to work the ventilator controls with the other, until the respiratory therapist arrived. (Id.) Williams wrote that when he saw the respiratory therapist in the hallway, he asked the nurse to suction the tracheostomy tube while he briefly stepped to the door to speak with the respiratory therapist. (Id.) According to Williams, the nurse became agitated and indicated Williams had left the patient unventilated. (Id.) Williams stated the respiratory therapist was at the ventilator within seconds, and Williams asked the nurse whether she considered ventilating patients with an ambu bag part of her job. (Id.) Williams contends he never left the room, and the patient never was in danger. (Id.)

Williams identified as a second possible hotline call an incident in a recovery room where Williams walked seven feet from the patient's bed to wash his hands. (Id.) According to Williams, the nursing supervisor asked why Williams left the patient for her to ventilate. (Id.) Williams wrote that he believed the nurse was joking, as she said it in a joking manner and the respiratory therapist was standing directly behind Williams prior to Williams leaving the patient's bedside.⁴ (Id.)

With respect to the incident with Voss, Williams wrote that he called the hotline regarding the incident with the ambu bag and Liebrader. (Id.) According to Williams, Voss's response that the peer review process is shielded from discovery caught him off guard, and he may have "overreacted" to the situation. (Id.) He denied being threatening or rude to the staff at any time. (Id.) Williams explained he did not dictate a complaint or response because he considered Liebrader's complaint "bogus." (Id.)

On March 21, Dr. Della Ming Lin ("Lin") of the Greeley Company produced an external peer report reviewing the incident with patient WP. (Defs.' Opp'n, Ex. M.) The report raised various potential issues with Williams' care of patient WP, including some questions regarding documentation; the rationale for using a muscle relaxant; if a muscle relaxant was given, why was the patient able to cough; and why certain non-surgical emergency intubation devices were not used while awaiting the surgical airway to be placed. (Id.) Additionally, the Greeley report criticized certain steps taken in the resuscitation efforts, including the large dose of epinephrin given and the lack of atropine administered as would be expected as part of the ACLS protocol. (Id.)

The MEC held a meeting on March 22 at which it considered Williams' suspension. (Pl.'s MSJ, Ex. N at 2.) On March 24, Ellerton sent Williams a letter notifying Williams that the MEC had decided to continue his suspension, but the letter contained no reasons supporting the MEC's decision. (Defs.' Opp'n, Ex. D; Pl.'s Mot., Ex. T at 102-03.) The letter stated the MEC would reconsider its decision only if Williams underwent a...