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Docket No. 13-1076
IN THE
Supreme Court of the United States
October Term, 2013
_______________________
HANOVER UNIVERSITY GENERAL HOSPITAL;
ANTHONY B. GLOWER;
MARY ELIZABETH KREUTZER;
SEAMUS O. MILK;
ALISHA POLISHOV,
Petitioners,
v.
THOMAS L. RUTHERFORD,
Respondent.
_______________________
On Writ of Certiorari to the
United States Court of Appeals
for the Twelfth Circuit
_______________________
BRIEF FOR RESPONDENT
_______________________
Team 1326
Counsel for Respondent
i
QUESTIONS PRESENTED
I. Whether the revocation of Dr. Rutherford’s privileges was
unconstitutional because his ConnectSpace post qualifies as protected
speech under the Pickering-Connick balancing test?
II. Whether the Twelfth Circuit correctly found that evidence of bias should
be considered in determining that Dr. Rutherford rebutted HUGH’s
presumption of immunity under the Health Care Quality Improvement
Act?
ii
TABLE OF CONTENTS
Questions Presented ....................................................................................................... i
Table of Contents ........................................................................................................... ii
Table of Authorities ....................................................................................................... v
Jurisdictional Statement ............................................................................................... 1
Opinions Below .............................................................................................................. 1
Constitutional and Statutory Provisions ...................................................................... 1
Statement of the Case ................................................................................................... 2
Statement of the Facts ............................................................................................. 2
Procedural History ................................................................................................... 4
Summary of the Argument ............................................................................................ 6
Standard of Review ...................................................................................................... 10
Argument ..................................................................................................................... 11
I. THE REVOCATION OF DR. RUTHERFORD’S PRIVILEGES WAS
UNCONSTITUTIONAL BECAUSE HIS CONNECTSPACE POST QUALIFIES
AS PROTECTED SPEECH UNDER THE PICKERING-CONNICK
BALANCING TEST ............................................................................................... 11
A. Dr. Rutherford’s ConnectSpace post is entitled to First Amendment
protection because he was speaking as a private citizen on a matter of public
concern ............................................................................................................... 13
1. Dr. Rutherford was speaking as a private citizen when he published his
ConnectSpace post ....................................................................................... 13
2. Dr. Rutherford was commenting on matters of public concern when he
published his ConnectSpace post ................................................................ 15
B. Dr. Rutherford’s fundamental First Amendment right to freedom of speech
outweighs HUGH’s interest in avoiding disruption in the workplace ............ 18
C. Dr. Rutherford’s ConnectSpace post was the motivating factor behind
HUGH’s termination of Dr. Rutherford’s clinical privileges ........................... 20
iii
D. HUGH cannot prove it would have taken the same action even in the absence
of Dr. Rutherford’s ConnectSpace post ............................................................ 21
II. THE TWELFTH CIRCUIT CORRECTLY FOUND THAT EVIDENCE OF BIAS
SHOULD BE CONSIDERED IN DETERMINING THAT DR. RUTHERFORD
REBUTTED HUGH’S PRESUMPTION OF IMMUNITY UNDER THE HEALTH
CARE QUALITY IMPROVEMENT ACT .............................................................. 22
A. This Court should adopt the Twelfth Circuit’s rule that the bias of a
professional review committee is relevant in determining whether the
committee is entitled to immunity under the Health Care Quality
Improvement Act ............................................................................................... 24
1. Congress intended this Court to consider evidence of HUGH’s bias in
determining the reasonableness of its professional review action ............ 25
2. Contrary to Congress’ intent in enacting the Health Care Quality
Improvement Act, several circuit courts have incorrectly found a
professional review committee’s bias irrelevant ........................................ 27
B. Dr. Rutherford provided sufficient evidence to rebut the presumption that
HUGH’s professional review action complied with any of the four
requirements for immunity under the Health Care Quality Improvement
Act ...................................................................................................................... 29
1. HUGH’s failure to provide adequate notice and hearing procedure or
procedures fair under the circumstances is fatal to its immunity under the
Health Care Quality Improvement Act ...................................................... 30
(i) HUGH failed to provide adequate notice and hearing procedures as
required by the Health Care Quality Improvement Act safe-harbor
provision ................................................................................................. 31
(ii) HUGH failed to provide adequate notice and hearing procedures to Dr.
Rutherford that were fair “under the circumstances” .......................... 32
2. HUGH’s failure to take its professional review action “in the furtherance
of quality health care” is fatal to its immunity under the Health Care
Quality Improvement Act ............................................................................ 36
3. HUGH’s failure to make a reasonable effort to obtain the facts of the
matter is fatal to its immunity under the Health Care Quality
Improvement Act ......................................................................................... 39
4. HUGH’s failure to base its revocation of Dr. Rutherford’s privileges on a
reasonable belief that the action was warranted by the facts known is
fatal to its immunity under the Health Care Quality Improvement Act .. 40
iv
Conclusion .................................................................................................................... 43
Appendix A ..................................................................................................................... a
Appendix B ..................................................................................................................... b
Appendix C ..................................................................................................................... d
Appendix D ...................................................................................................................... f
v
TABLE OF AUTHORITIES
United States Constitution
U.S. Const. amend. I ................................................................................................ 1, 11
United States Supreme Court Cases
Bd. of Cnty. Comm’rs v. Umbehr,
518 U.S. 668 (1996) ........................................................................................... 12
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Res.,
532 U.S. 598 (2001) ........................................................................................... 28
Connick v. Myers,
461 U.S. 138 (1983) .................................................................................... passim
Garcetti v. Ceballos,
547 U.S. 410 (2006) ......................................................................... 11, 13, 14, 15
Givhan v. W. Line Consol. Sch. Dist.,
439 U.S. 410 (1978) ........................................................................................... 16
Goldberg v. Kelly,
392 U.S. 254 (1970) ................................................................................ 31, 34-35
McNally v. United States,
480 U.S. 350 (1987) ........................................................................................... 28
Mt. Healthy Sch. Dist. Bd. Of Educ. v. Doyle,
429 U.S. 274 (1976) .......................................................................... 11-12, 20, 21
Pickering v. Bd. of Ed.,
391 U.S. 563 (1968) .................................................................................... passim
Rankin v. McPherson,
483 U.S. 378 (1987) ............................................................................... 15, 17, 18
Summit Health Ltd. v. Pinhas,
500 U.S. 322 (1991) ..................................................................................... 26, 36
Waters v. Churchill,
511 U.S. 661 (1994) ........................................................................................... 18
vi
United States Courts of Appeals Cases
Austin v. McNamara,
979 F.2d 728 (9th Cir. 1992) ...................................................................... passim
Bland v. Roberts,
2013 WL 5228033 (4th Cir. 2013)..................................................................... 16
Bonds v. Milwaukee Cnty.,
207 F.3d 969, 979 (7th Cir. 2000) ..................................................................... 10
Brown v. Presbyterian Healthcare Servs.,
101 F.3d 1324 (10th Cir. 1996) ............................................................. 30, 39, 40
Bryan v. James E. Holmes Med. Ctr.,
33 F.3d 1318 (11th Cir. 1994) ..................................................................... 28, 30
Cholima v. St. John Med. Ctr.,
693 F.3d 1296 (10th Cir. 2012) ......................................................................... 27
Guilloty Perez v. Pierluisi,
339 F.3d 43 (1st Cir. 2003) ................................................................... 12, 20, 21
Hain v. Mullin,
324 F.3d 1146 (10th Cir. 2003) ......................................................................... 10
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist.,
650 F.3d 915 (3d. Cir. 2011) ............................................................................. 16
Mason v. Corr. Med. Servs. Inc.,
559 F.3d 880 (8th Cir. 2009) ............................................................................. 10
Mathews v. Lancaster Gen. Hosp.,
87 F.3d 624 (3d Cir. 1996) .................................................................... 22, 39, 41
Mestayer v. Wis. Physicians Serv. Ins. Corp.,
905 F.2d 1077 (7th Cir. 1990) ............................................................................. 4
Meyers v. Columbia/HCA Health Care Corp.,
341 F.3d 461 (6th Cir. 2003) ................................................................. 33, 36, 39
Myers v. Hasara,
226 F.3d 821 (7th Cir. 2000) ............................................................................. 16
Poliner v. Tex. Health Sys.,
537 F.3d 368 (5th Cir. 2008) ................................................................. 27, 39, 41
vii
United States Courts of Appeals Cases (continued)
Rakovich v. Wade,
850 F.2d 1180 (7th Cir. 1988) ........................................................................... 20
Sugarbaker v. SSM Health Care,
190 F.3d 905 (8th Cir. 1999) ........................................................................ 27-28
Wahi v. Charleston Area Med. Ctr., Inc.,
562 F.3d 599 (4th Cir. 2009) ................................................................. 30, 32, 33
United States District Court Cases
Braswell v. Haywood Reg’l Med. Ctr.,
352 F. Supp. 2d 639 (W.D.N.C. 2005)......................................................... 33, 35
Farah v. Esquire Magazine, Inc.,
863 F. Supp. 2d 29 (D.D.C. 2012) ..................................................................... 16
Islami v. Covenant Med. Ctr., Inc.,
822 F. Supp. 1361 (N.D. Iowa 1992) ................................................................. 33
Reyes v. Wilson Mem’l Hosp.,
102 F. Supp. 2d 798 (S.D. Ohio 1998) .......................................................... 4, 23
Rodgers v. Columbia/HCA of Cent. La., Inc.,
971 F. Supp. 229 (W.D. La. 1997) ................................................... 26, 36, 37, 39
Federal Statutes
42 U.S.C. § 11111 (2006) ...................................................................................... passim
42 U.S.C. § 11112 (2006) ...................................................................................... passim
42 U.S.C. § 11151 (2006) ...................................................................................... passim
Secondary Sources
Anthony W. Rodgers, Comment, Procedural Protections During Medical Peer
Review: A Reinterpretation of the Health Care Quality Improvement Act of
1986, 111 Penn. St. L. Rev. 1047 (2007) ..................................................... 25-26
Lindsay A. Hitz, Protecting Blogging: The Need for an Actual Disruption Standard
in Pickering, 67 Wash. & Lee L. Rev. 1151 (2010) .......................................... 17
viii
Other Authorities
Black’s Law Dictionary (8th ed. 2004) ........................................................................ 25
H.R. REP. NO. 99-903, at 1 (1986), reprinted in 1986 U.S.C.C.A.N. 6384 .......... passim
Vaccines and Autism, AUTISM SPEAKS, http://www.autismspeaks.org/science/policy-
statements/information-about-vaccines-and-autism, (last visited Sept. 17,
2013) ............................................................................................................. 16-17
Emily Willingham, Court Rulings Don’t Confirm Autism-Vaccine Link,
http://www.forbes.com/sites/emilywillingham/ 2013/08/09/court-rulings-
I-confirm-autism-vaccine-link/ (last visited September 22, 2013) .................. 17
1
JURISDICTIONAL STATEMENT
The requirement of a formal statement of jurisdiction has been waived under
Rule 4(a)(i) of the Official Rules of the National Health Law Moot Court
Competition.
OPINIONS BELOW
The decision and order of the United States District Court of Hanover is
unreported and set out in the record. (R. at 1-14.) The opinion of the United States
Court of Appeals for the Twelfth Circuit is also unreported and set out in the record.
(R. at 15-24.)
CONSTITUTIONAL AND STATUTORY PROVISIONS
1. The First Amendment provides in pertinent part, “Congress shall make no law .
. . abridging the freedom of speech . . . .” U.S. Const. amend. I.
2. The following federal statute is set out in Appendix A: 42 U.S.C. § 11111 (2006).
3. The following federal statute is set out in Appendix B: 42 U.S.C. § 11112 (2006).
4. The following federal statute is set out in Appendix C: 42 U.S.C. § 11151 (2006).
2
STATEMENT OF THE CASE
Statement of the Facts
On Thursday, June 7, 2012, Dr. Thomas L. Rutherford was informed that his
nineteen-month old grandson was diagnosed with autism. (R. at 1.) The following
Monday morning, Dr. Rutherford published a post on ConnectSpace, his private
social media page, expressing his concern over his grandson’s autism diagnosis and
the link between childhood vaccinations and autism. (R. at 2.)
Upon discovering Dr. Rutherford’s post, Dr. Anthony Glower, chief of pediatrics
and chief investigator of the “99 Percent” initiative at Hanover University General
Hospital (“HUGH”), immediately relayed news of the post to Dr. Alicia Polishov, the
HUGH Chief of Medicine and chair of its Medical Executive Committee. (R. at 2.)
Dr. Glower stated that Dr. Rutherford was disrupting her project, the “99 Percent”
initiative. (R. at 3.) In later e-mails that week, Dr. Glower speculated that Dr.
Rutherford’s post was made out of “simply envy” of Dr. Glower’s accomplishments.
(R. at 3.) Before the end of that week, Dr. Polishov, pursuant to HUGH’s Medical
Staff Bylaws, initiated a “request for corrective action” against Dr. Rutherford. (R.
at 3.)
On July 8, 2012, Dr. Polishov hand selected three members to an ad hoc review
committee to investigate Dr. Rutherford’s performance at HUGH: Dr. Anthony
Glower, personal friend of Dr. Polishov; Dr. Seamus Milk, retired cardiac surgeon
and “life partner” of Dr. Polishov; and Dr. Ronald Ling, a general surgeon
professionally and personally invested in the “99 Percent” initiative. (R. at 4, 16.)
Dr. Rutherford was informed of the ad hoc committee formation by letter. (R. at 4.)
In this letter, Dr. Rutherford learned for the first time that the Medical Executive
3
Committee would decide whether to restrict his clinical privileges based on the ad
hoc committee’s investigation. (R. at 4.) The letter explained that Dr. Rutherford’s
professional conduct would be investigated to determine whether his conduct was
“detrimental to patient safety or to the delivery of quality patient care, disruptive to
Hospital operations, contrary to the bylaws, or below applicable professional
standards.” (R. at 3-4.) However, the letter never mentioned that the
ConnectSpace controversy triggered the investigation. (R. at 4.)
The ad hoc review committee limited its investigation to only six of Dr.
Rutherford’s extensive twenty-three year career at HUGH as an esteemed cardiac
surgeon. (R. at 1, 4.) Furthermore, it only spent twenty-three days reviewing Dr.
Rutherford’s record and interviewing a few members of the Hospital’s staff. (R. at
5, 16.) In less than a month, the Medical Executive Committee accepted the ad hoc
committee’s unsubstantiated recommendation to revoke Dr. Rutherford’s privileges
as a member of HUGH’s active staff. (R. at 16.)
On July 31, 2012, HUGH’s Chief Executive Officer sent Dr. Rutherford another
letter. (R. at 5.) This letter explained to Dr. Rutherford that his clinical privileges
at HUGH were revoked based on “unacceptably high rates of morbidity and post-
operative complications,” failure to meet HUGH’s standard of care, and “conduct
that impedes quality patient care.” (R. at 5.) Effective immediately, Dr.
Rutherford’s privileges were wrongly revoked, barring him from performing any
surgeries at HUGH. (R. at 5.) On August 24, 2012, HUGH’s Board of Trustees
reversed the unreasonable revocation of Dr. Rutherford’s privileges. (R. at 6.)
4
Procedural History
Following Dr. Thomas L. Rutherford’s receipt of notice that his privileges were
revoked, he filed suit in the United States District Court for the District of Hanover
alleging a deprivation of his constitutional right to freedom of speech under 42
U.S.C. § 1983.1 (R. at 1.) Dr. Rutherford also brought claims under Hanover
common law for breach of contract, intentional infliction of emotional distress, and
defamation.2 (R. at 10.) The defendants moved for summary judgment on all
claims. (R. at 1.) The District Court granted the defendants’ motion for summary
judgment on the constitutional law claims, holding that Dr. Rutherford’s First
Amendment rights were not violated. (R. at 13.) The District Court also granted
the defendants’ motion for summary judgment on the common law claims, holding
that Dr. Rutherford had not rebutted HUGH’s presumption of immunity under the
Health Care Quality Improvement Act. (R. at 13.)
On appeal, the United States Court of Appeals for the Twelfth Circuit held that
summary judgment was not appropriate for Dr. Rutherford’s constitutional law
claims. (R. at 19-20.) Dr. Rutherford produced sufficient evidence for a reasonable
jury to conclude his ConnectSpace post was protected under the First Amendment.
(R. at 20.) The Twelfth Circuit also held that Dr. Rutherford rebutted by a
preponderance of the evidence the presumption that HUGH’s professional review
1 For purposes of Dr. Rutherford’s 42 U.S.C. § 1983 claim, HUGH has stipulated that it is a state
actor pursuant to its status as a public hospital. (R. at 6 n. 4.) It has also waived all claims of
qualified immunity under 42 U.S.C. § 1983. (R. at 6 n. 4.) HUGH is also not entitled statutory
immunity under the Health Care Quality Improvement Act against Dr. Rutherford’s constitutional
claims under 42 U.S.C. § 1983. See Reyes v. Wilson Mem’l Hosp., 102 F. Supp. 2d 798, 821 (S.D. Ohio
1998) (holding that there is no HCQIA immunity for § 1983 claims). 2 It has been stipulated by the parties that Dr. Rutherford’s state law claims were not mooted by the
Board of Trustees’ decision. (R. at 6 n. 5.) Further, this Court has jurisdiction over these claims due
to supplemental jurisdiction through the 42 U.S.C. § 1983 claims. See Mestayer v. Wis. Physicians
Serv. Ins. Corp., 905 F.2d 1077 (7th Cir. 1990).
5
action conformed with the Health Care Quality Improvement Act. (R. at 23.) This
Court granted certiorari on the following two questions: (1) “Whether Respondent’s
social media post was speech protected by the First Amendment, and if so, whether
the lower court applied the Pickering-Connick balancing test to that speech
correctly?” and (2) “What evidence may be considered to overcome the presumption
that a peer review panel’s actions meet the standard for immunity under the Health
Care Quality Improvement Act, including whether the trial court should consider
evidence of decision-maker bias, and did the lower court properly find that
Respondent had overcome that presumption?” (R. at 27.)
6
SUMMARY OF THE ARGUMENT
Dr. Rutherford’s case provides this Court with an opportunity to decide two
important issues. First, whether the revocation of Dr. Rutherford’s privileges was
unconstitutional because his ConnectSpace post qualifies as protected speech under
the Pickering-Connick balancing test. Second, whether the Twelfth Circuit correctly
found that evidence of bias should be considered in determining that Dr. Rutherford
rebutted HUGH’s presumption of immunity under the Health Care Quality
Improvement Act.
Dr. Rutherford’s ConnectSpace post is protected speech under the Pickering-
Connick balancing test because he was speaking as a private citizen on a matter of
public concern. This Court has recognized that a government employee is entitled
to constitutional protection as a private citizen so long as he is not speaking on
matters pursuant to his official duties. A matter is of public concern if it involves
matters of political, social, or other community concerns. Dr. Rutherford was
speaking on a matter of public concern because he was publishing his ConnectSpace
post as a private citizen and concerned grandfather. He was not publishing his post
pursuant to his official duties; rather, he was commenting on the link between
childhood vaccinations and autism, a matter of public health and safety.
Once it is determined that Dr. Rutherford was speaking as a private citizen on a
matter of public concern, his right to freedom of speech must be balanced against
HUGH’s interest in promoting the efficiency of the public services it performs
through him. Dr. Rutherford’s ConnectSpace post was directed at the link between
childhood vaccinations and autism, not at any particular physician involved in the
“99 Percent” initiative. His post neither impaired any close working relationships
7
within the cardiology department, nor did Dr. Rutherford impede his performance
or the regular operations of HUGH. Therefore, HUGH’s interest in promoting
efficiency in the workplace did not outweigh Dr. Rutherford’s First Amendment
right to speak on matters of public concern.
Dr. Rutherford’s ConnectSpace post was the motivating factor behind the
termination of his privileges. Upon discovering his post, HUGH initiated the
investigation into Dr. Rutherford as a member of its active staff. The ad hoc review
committee that was hand selected to investigate Dr. Rutherford was comprised of
physicians personally and professionally aligned with the “99 Percent” initiative.
Pursuant to its brief investigation, the ad hoc review committee made its
unsubstantiated recommendation to revoke Dr. Rutherford’s privileges. This
recommendation was immediately accepted by the Medical Executive Committee.
HUGH failed to prove by a preponderance of the evidence that it would have
made the same decision even in the absence of Dr. Rutherford’s ConnectSpace post.
The Board of Trustees reinstatement of Dr. Rutherford’s privileges provides
sufficient evidence that the Medical Executive Committee’s decision was based on
Dr. Rutherford’s post. Based upon this evidence, HUGH would not have taken the
same action but for Dr. Rutherford’s post. In sum, the revocation of Dr.
Rutherford’s privileges was unconstitutional.
Next, the Twelfth Circuit properly found that Dr. Rutherford rebutted the
presumption of immunity under the Health Care Quality Improvement Act
(“HCQIA”). This issue hinges upon whether a professional review committee’s bias
can be considered. The HCQIA grants limited immunity to professional review
8
actions that meet its objective standards. Those standards require that the
professional review committee must act reasonably.
When enacting the HCQIA, however, Congress intended to encourage good faith
professional review activities. In furtherance of this goal, it intended a court to
review all relevant considerations, including the bias of a professional review
committee. In doing so, Congress intended the courts to do more than rubber stamp
the professional review committee’s decision – it must weigh all the evidence
relating to that decision.
On the other hand, several federal circuit courts have incorrectly held that a
professional review committee’s bias is irrelevant to whether it is entitled to
immunity under the HCQIA. But, this Court has the power to determine the
correct interpretation of the Health Care Quality Improvement Act. Therefore, this
Court should adopt the Twelfth Circuit’s interpretation of the Health Care Quality
Improvement Act, allowing bias to be a relevant consideration to rebut HUGH’s
immunity.
Under the Twelfth Circuit’s interpretation, Dr. Rutherford has provided
sufficient evidence to rebut the presumption that HUGH is entitled to immunity
under the HQCIA. He proved by a preponderance of the evidence that HUGH’s
professional review actions did not meet any of the four requirements under the
HCQIA. The professional review action was not taken under the reasonable belief
that it was in the furtherance of quality health care. HUGH’s pre-textual review
action was initiated based upon Dr. Rutherford’s ConnectSpace post, not to restrict
incompetent behavior or protect patients. Its twenty-three day limited
9
investigation of a small portion of Dr. Rutherford’s record as a member of the active
staff was not enough to constitute a reasonable effort to obtain the facts.
Dr. Rutherford did not receive adequate notice and hearing procedures; nor did
he receive procedures that were fair under the circumstances. Dr. Rutherford was
not provided accurate notice of the true reasons for the proposed professional review
action as required by the HCQIA safe-harbor provisions. HUGH’s “somewhat
informal” procedures, failure to follow its own medical staff bylaws, and biased
professional review committee are also sufficient to rebut the presumption that the
professional review action was fair “under the circumstances.”
Dr. Rutherford also presented sufficient evidence to rebut the presumption that
HUGH’s professional review action was taken in the reasonable belief that it was
warranted by the known facts. HUGH failed to properly limit its professional
review action to the concerns raised by the committee’s investigation, and it failed
to provide adequate notice and hearing procedures to Dr. Rutherford.
Consequently, Dr. Rutherford presented sufficient evidence to rebut the
presumption that HUGH’s professional review action is entitled to immunity under
the Health Care Quality Improvement Act. Therefore, this Court should affirm the
Twelfth Circuit’s interpretation of the Health Care Quality Improvement Act.
10
STANDARD OF REVIEW
Whether a government employee’s First Amendment rights have been violated
under the Pickering-Connick balancing test is a question of law that is reviewed de
novo. Bonds v. Milwaukee Cnty., 207 F.3d 969, 979 (7th Cir. 2000).
Similarly, because this appeal centers on the interpretation of the Health Care
Quality Improvement Act, this Court should apply a de novo standard of review.
See Hain v. Mullin, 324 F.3d 1146, 1148 (10th Cir. 2003).
Further, whether summary judgment was proper is a question of law and
reviewed de novo. Mason v. Corr. Med. Servs. Inc., 559 F.3d 880, 884-85 (8th Cir.
2009).
11
ARGUMENT
I. THE REVOCATION OF DR. RUTHERFORD’S PRIVILEGES WAS
UNCONSTITUTIONAL BECAUSE HIS CONNECTSPACE POST
QUALIFIES AS PROTECTED SPEECH UNDER THE PICKERING-
CONNICK BALANCING TEST.
The United States Constitution provides every citizen the fundamental right to
freedom of speech. U.S. Const. amend. I. It is a well-settled rule that states
“cannot condition public employment on a basis that infringes the employee’s
constitutionally protected interest in freedom of expression.” Connick v. Myers, 461
U.S. 138, 142 (1983). The first step in determining whether an employee may
recover based upon an unconstitutional determination is deciding if the speech at
issue is protected. Pickering v. Board of Education, 391 U.S. 563, 568 (1968). This
Court has identified a two-pronged analysis to determine whether a government
employee’s speech is entitled to protection under the First Amendment. Id. The
first prong asks whether the employee spoke as a private citizen. Garcetti v.
Ceballos, 547 U.S. 410, 410 (2006). The second prong asks whether the employee
spoke on a matter of public concern. Id. If the answers are yes, then the speech is
protected. Id. at 418.
Once it is established that the speech is entitled to First Amendment protection,
the Court must then apply a balancing test. Pickering, 391 U.S. at 568. The Court
must weigh the employee’s interest in making the statement against the
government employer’s interest in “promoting the efficiency of the public services it
performs through its employees.” Id. If the employee’s interest in making the
statement outweighs the employer’s interest in efficiency, the employee must then
show that the conduct at issue was a motivating factor for the termination. Mt.
12
Healthy Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1976). If the employee
proves the speech was a motivating factor, “the burden then shifts to the employer
to prove by a preponderance of the evidence that it would have reached the same
decision even in the absence of the protected conduct.” Guilloty Perez v. Pierluisi,
339 F.3d 43, 56 (1st Cir. 2003).
Dr. Rutherford’s ConnectSpace post was protected speech under the First
Amendment. The revocation of Dr. Rutherford’s privileges is “functionally
equivalent to the termination of an employment relationship.”3 (R. at 17.)
According to the Pickering-Connick balancing test, Dr. Rutherford’s fundamental
right to speak on matters of public concern outweighs HUGH’s attenuated interest
in maintaining the funding of the “99 Percent” initiative. (R. at 18.) Moreover, the
ConnectSpace post was the motivating factor behind the termination of Dr.
Rutherford’s clinical privileges. (R. at 19.) Finally, the Board of Trustees’ reversal
of the Medical Executive Committee’s (“MEC”) decision along with the lack of any
justifiable reason for terminating Dr. Rutherford’s privileges indicates that HUGH
would not have taken the same action but for his ConnectSpace post. See (R. at 20.)
As a result, HUGH’s revocation of Dr. Rutherford’s privileges was unconstitutional
because it infringed upon his First Amendment right to speak on matters of public
concern.
3 Although Dr. Rutherford is an independent contractor and not a state employee, the Pickering-
Connick balancing test still applies to his claims. See Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668,
678-79 (1996).
13
A. Dr. Rutherford’s ConnectSpace post is entitled to First Amendment
protection because he was speaking as a private citizen on a matter
of public concern.
Dr. Rutherford’s ConnectSpace post is protected by the First Amendment
because it was made in his capacity as a concerned grandfather on a matter of
public health. In matters concerning government employee speech, this Court
requires an initial determination of whether the speech at issue is protected under
the First Amendment. Pickering, 391 U.S. at 568. This initial determination is
resolved by asking whether the speaker was acting as a “[private] citizen
commenting on a matter of public concern.” Garcetti, 547 U.S. at 417. Therefore,
the employee must first be acting in his capacity as a private citizen and not
pursuant to his official duties. Id. at 421. The employee must also be “commenting
upon matters of public interest.” Pickering, 391 U.S. at 568.
In this case, Dr. Rutherford’s post on his personal ConnectSpace page involved
the controversial link between childhood vaccinations and autism, an important
matter of public health. (R. at 2.) These comments were not made pursuant to his
job responsibilities, but instead in his capacity as a concerned grandparent and
citizen. (R. at 2.) Therefore, Dr. Rutherford’s post qualifies for protection under the
First Amendment because he was acting in his capacity as a private citizen
commenting on a matter of public concern.
1. Dr. Rutherford was speaking as a private citizen when he
published his ConnectSpace post.
This Court has long recognized that “a citizen who works for the government is
nonetheless a citizen.” Garcetti, 547 U.S. at 411. Accordingly, the First
Amendment prevents a government employer from restricting its employees’ rights
14
to voice concerns they could otherwise make as private citizens. Id. Therefore,
constitutional protection is afforded to a government employee who is not speaking
on matters “pursuant to his official duties,” but instead in his capacity as a private
citizen. Id. The dispositive factor is whether the employee was participating in the
“kind of activity engaged in by citizens who do not work for the government.” Id. at
423. This remains true even when a government employee is speaking about the
subject matter of his employment. See id. at 420.
In Garcetti v. Cellabos, this Court held that a deputy district attorney writing a
memorandum advising his supervisor about a pending case was not entitled to First
Amendment protection because he was acting “pursuant to his official duties.” Id.
at 426. This Court explained that a government employee acts “pursuant to his
official duties” when he is fulfilling his official job responsibilities. Id. at 421. In
contrast to Garcetti, Pickering v. Board of Education involved a teacher who wrote a
letter to a local newspaper expressing dissatisfaction with the school board’s
financial policies. Pickering, 391 U.S. at 563. The Court clarified that the teacher’s
letter was written in his capacity as a private citizen, because it was not part of his
job responsibilities. Id.
Here, Dr. Rutherford’s ConnectSpace post was not made pursuant to his official
duties as a physician, but rather as a concerned citizen and grandparent. Dr.
Rutherford’s post was published on his personal ConnectSpace account, not on a
HUGH sponsored website. (R. at 1-2.) Additionally, Dr. Rutherford’s job
responsibilities as a cardiac surgeon neither required nor prohibited him from
commenting on the link between childhood vaccinations and autism on his private
ConnectSpace page. In contrast to the District Attorney in Garcetti, Dr. Rutherford
15
was not writing on his ConnectSpace page in furtherance of his duties as a cardiac
surgeon. See (R. 1-2.) Rather, like the teacher in Pickering, Dr. Rutherford utilized
a public forum to express his concerns regarding the link between childhood
vaccinations and autism, a subject of public interest that affected him personally.
(R. at 1-2.) Therefore, Dr. Rutherford was acting as a private citizen when he
published his ConnectSpace post.
2. Dr. Rutherford was commenting on matters of public concern
when he published his ConnectSpace post.
The Pickering-Connick balancing test requires the employee’s speech be “fairly
characterized as constituting speech on a matter of public concern.” Connick, 461
U.S. at 146. A matter of public concern is one that involves “any matter of political,
social, and or other concern to the community.” Id. Additionally, whether a
government employee’s speech involves a matter of public concern must be
determined by the “content, form, and context of a given statement, as revealed by
the whole record.” Id. at 147-48.
In Rankin v. McPherson, a deputy constable voiced her approval of an
assassination attempt on the President. 483 U.S. at 380. This Court held that the
employee’s speech amounted to an issue of public concern because the statement
dealt with the assassination of the president – a matter of national importance. Id.
at 387. Similarly, in Pickering, this Court also held that statements criticizing a
school board’s policy for funding school programs were a matter of public concern.
391 U.S. at 569-70.
In contrast, in Connick v. Myers, an Assistant District Attorney prepared and
distributed to her co-workers a questionnaire soliciting their views of office policies.
16
461 U.S. at 141. This Court found that the questionnaire, taken as a whole, did not
constitute a matter of public concern because it only involved “an employee
grievance concerning internal office policy.” Id. at 154.
As this Court has recognized, “the public interest in having free and unhindered
debate on matters of public importance” is the core value of free speech under the
First Amendment. Pickering, 391 U.S. at 573. Consequently, a statement involving
a matter of public debate is a matter of public concern. See id.; (R. at 18.) A
statement is not taken out of the realm of First Amendment protection simply
because the statement was made on a private social media page. (R. at 18.) (citing
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 920-21 (3d. Cir.
2011)); see Bland v. Roberts, 2013 WL 5228033 *15 (4th Cir. 2013) (holding the
“like” button on a Facebook page is entitled to First Amendment protection); Farah
v. Esquire Magazine, Inc., 863 F. Supp. 2d 29, 39 (D.D.C. 2012) (finding a blog post
is protected by the First Amendment); see also Givhan v. W. Line Consol. Sch. Dist.,
439 U.S. 410, 414-16 (1978) (finding the private nature of a statement does not
eliminate it from First Amendment protection). The Seventh Circuit has recognized
that a statement made about public health or safety constitutes a matter of public
concern. Myers v. Hasara, 226 F.3d 821, 827 (7th Cir. 2000) (holding a health
inspector’s statements concerning “risk[s] to public health, safety or good
governance . . . is a matter of public concern.”).
Dr. Rutherford’s statements on ConnectSpace dealt with a matter of public
concern. Dr. Rutherford utilized a public forum, ConnectSpace, to comment on the
link between childhood vaccinations and autism, a highly controversial topic in the
medical field. (R. at 2.); compare Vaccines and Autism, AUTISM SPEAKS,
17
http://www.autismspeaks.org/science/policy-statements/information-about-vaccines-
and-autism, (last visited Sept. 22, 2013); with Emily Willingham, Court Rulings
Don’t Confirm Autism-Vaccine Link, http://www.forbes.com/sites/ emilywillingham/
2013/08/09/court-rulings-dont-confirm-autism-vaccine-link/ (last visited September
22, 2013).
Here, Dr. Rutherford’s post was an attempt to “bring light” to an important
public health issue. See Connick, 461 U.S. at 148. As a result, Dr. Rutherford’s
post is similar to the comments made in Rankin and the letter in Pickering, as all
three involve statements made on a matter of public importance. See Rankin, 483
U.S. at 387; Pickering, 391 U.S. at 570. Furthermore, Dr. Rutherford’s post is
distinguishable from the questionnaire in Connick because it was concerned with
childhood vaccinations and autism, not just HUGH’s internal policies. See 461 U.S.
at 141.
Dr. Rutherford’s post is also not removed from the realm of First Amendment
protection simply because it was published on his private ConnectSpace page. (R.
at 18.) The public is entitled to hear Dr. Rutherford’s opinion, and he is
constitutionally permitted to voice his opinion without fear of retaliation. See
Pickering, 391 U.S. at 572. Given the current role of social media, Dr. Rutherford’s
interest in expressing his views through ConnectSpace is substantial. (R. at 18.);
see Lindsay A. Hitz, Protecting Blogging: The Need for an Actual Disruption
Standard in Pickering, 67 Wash. & Lee L. Rev. 1151 (2010). Therefore, Dr.
Rutherford’s post satisfies the threshold requirement for First Amendment
protection because he was acting as a private citizen commenting on a matter of
public concern.
18
B. Dr. Rutherford’s fundamental First Amendment right to freedom of
speech outweighs HUGH’s interest in avoiding disruption in the
workplace.
Dr. Rutherford’s post qualifies as protected speech under the First Amendment.
Therefore, his First Amendment interest must be balanced against HUGH’s
interest in “promoting the efficiency of the public services it performs through its
employee[s].” Pickering, 391 U.S. at 568. This Court has also found that a
statement “will not be considered in a vacuum; the manner, time, and place of
employee’s expression are relevant, as is the context in which the dispute arose.”
Rankin, 483 U.S. at 388.
This Court recognized three important factors to be used in the Pickering-
Connick balancing test. First, the Court must ask whether the statement “impairs
discipline by superiors or harmony among co-workers.” Connick, 461 U.S. at 166-
67. This is determined by considering if the statements were directed at a co-
worker with whom the employee would be in regular contact. Id. Second, the Court
must determine whether the statement has a “detrimental impact on close working
relationships for which personal loyalty and confidence are necessary.” Id. Finally,
the third factor examines whether the statement “impedes the performance of the
speaker’s duties or interferes with the regular operation of the enterprise.” Id.
Under this factor, potential disruptiveness is not enough; it must be determined
whether the facts that the employer relied upon “reasonably support its conclusion
about disruptiveness.” (R. at 19.); see Waters v. Churchill, 511 U.S. 661, 677
(1994)).
In applying the three Pickering factors, Dr. Rutherford’s First Amendment
interest outweighs HUGH’s attenuated interest in maintaining the funding for the
19
“99 Percent” initiative. Although, Dr. Rutherford’s post upset several HUGH
physicians who were involved in the “99 Percent” initiative, it was not directed at
any particular physician. (R. at 2.) Rather, the post was directed at the link
between childhood vaccination and autism. See (R. at 2.) As a result, the post did
not impair discipline by superiors or harmony among co-workers. Furthermore, Dr.
Rutherford is a cardiac surgeon at HUGH, a large teaching hospital. (R. at 1.) He
does not work closely with Dr. Glower or anyone involved with the “99 Percent
initiative.” See (R. at 2.)
Finally, there is no evidence that the ConnectSpace post impeded Dr.
Rutherford’s performance of his duties or interfered with the regular operation of
the hospital. See (R. at 19.) HUGH asserts that Dr. Rutherford’s post threatened
the operations of the hospital because if the post went viral. HUGH assumed that if
it went viral, it could raise anti-vaccine prejudice and increase the necessary staff
time to cooperate with the “99 Percent” initiative. (R. at 18.) However, HUGH has
failed to assert any concrete evidence that the post actually interfered with the
regular operations of the hospital. See (R. at 19.) Consequently, HUGH’s
speculation concerning the “potential disruptiveness” of Dr. Rutherford’s post does
not outweigh Dr. Rutherford’s First Amendment right to comment on matters of
public concern. (R. at 19.) Because all three factors weigh in favor of Dr.
Rutherford, his First Amendment right to speak on matters of public concern
outweighs HUGH’s interest in promoting efficiency in the workplace.
20
C. Dr. Rutherford’s ConnectSpace post was the motivating factor
behind HUGH’s termination of his clinical privileges.
After the Pickering-Connick balancing test is applied, Dr. Rutherford must show
that his speech was a “motivating factor” in HUGH’s decision to terminate his
employment. See Mt. Healthy, 429 U.S. at 287. To satisfy this requirement, Dr.
Rutherford does not need to provide direct evidence of HUGH’s motivation. See
Guilloty Perez, 339 F.3d at 56. He can “rely upon circumstantial evidence” to prove
his termination was motivated by his speech. Id. This evidence must be examined
in the light most favorable to Dr. Rutherford, and he need only “produce some facts
linking that action to his conduct.” See Rakovich v. Wade, 850 F.2d 1180, 1191 (7th
Cir. 1988).
A substantial motivating factor behind HUGH’s termination of Dr. Rutherford
was his ConnectSpace post. Immediately following publication of the ConnectSpace
post, Dr. Glower texted Dr. Polishov stating, “Tom takes a swipe @ 99%.” (R. at 2.)
Several days later, Dr. Glower sent an email to Dr. Polishov speculating about Dr.
Rutherford’s motive stating, “Simple envy. Doda Stent went off patent 4 years ago
& he has no new ideas. He’s 64, I’m 47. He lost with NIH, I won with HDRI.” (R. at
3.) Dr. Glower’s frustration continued to escalate in yet another email to Dr.
Polishov where he vented, “Terrible about his grandson but that doesn’t give him
the right to badmouth my program! Guy’s a trainwreck. He’ll take us down with
him if he can & you know it.” (R. at 3.)
That week, Dr. Polishov initiated the “request for corrective action” and hand
selected an ad hoc review committee consisting of Dr. Glower, Dr. Ling, and Dr.
Milk. (R. at 4.) Two weeks later, the committee sent Dr. Rutherford a letter
21
informing him of the professional review investigation. (R. at 4.) The committee
investigated for only twenty-three days before recommending to the MEC that Dr.
Rutherford’s privileges be terminated as a member of the active staff – a position he
held for twenty-six years. (R. at 5, 16.) The MEC, also consisting of Dr. Glower, Dr.
Ling and Dr. Polishov, immediately accepted the ad hoc committee’s findings. (R. at
4 n.3.) As a result, the hastiness of the decision to revoke Dr. Rutherford’s
privileges, as well as Dr. Glower and Polishov’s admitted frustration with Dr.
Rutherford is sufficient to provide the necessary “link” required to prove that the
termination was motivated by Dr. Rutherford’s ConnectSpace post. (R. at 19.); see
Guilloty Perez, 339 F.3d at 56.
D. HUGH cannot prove it would have taken the same action even in the
absence of Dr. Rutherford’s ConnectSpace post.
Once Dr. Rutherford met the burden established by Mt. Healthy, it shifted to
HUGH to prove by a preponderance of the evidence that it would have come to the
same conclusion “even in the absence of the protected conduct.” Guilloty Perez, 339
F.3d at 56 (citing Mt. Healthy, 429 U.S. at 287). In this case, the ad hoc committee
stated Dr. Rutherford’s privileges were revoked because of “unacceptably high rates
of morbidity and post-operative care,” and “conduct that impedes quality patient
care.” (R. at 5.)
However, HUGH’s Board of Trustees reinstated Dr. Rutherford’s clinical
privileges within a few weeks of the committee’s decision. (R. at 6.) Dr. Rutherford
also stated that his track record involving patient care is “extraordinarily good.” (R.
at 5.) Further, he stated that his post-operative infection rates were high because of
a four-month period in which HUGH’s HVAC system was piping sewer exhaust into
22
recovery rooms. (R. at 5.) As a result, these facts present a sufficient basis upon
which a reasonable jury could conclude that HUGH would not have taken the same
action against Dr. Rutherford, in the absence of the protected conduct. (R. at 20.)
In sum, the revocation of Dr. Rutherford’s privileges was unconstitutional
because his ConnectSpace post qualifies as protected speech under the Pickering-
Connick balancing test; his post was the motivating factor behind HUGH’s
professional review action; and it would not have taken the same action in the
absence of his ConnectSpace post.
II. THE TWELFTH CIRCUIT CORRECTLY FOUND THAT EVIDENCE OF
BIAS SHOULD BE CONSIDERED IN DETERMINING THAT DR.
RUTHERFORD REBUTTED HUGH’S PRESUMPTION OF IMMUNITY
UNDER THE HEALTH CARE QUALITY IMPROVEMENT ACT.
The Health Care Quality Improvement Act of 1986 (“HCQIA”) was enacted to
facilitate the monitoring and disciplining of incompetent and unprofessional
physicians. See Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 632 (3d Cir. 1996);
Austin v. McNamara, 979 F.2d 728, 733 (9th Cir. 1992). Under the HCQIA, a
“professional review body” is provided limited immunity from monetary damages
from suits based upon “professional review actions” taken against a physician. 42
U.S.C. § 11111(a). A professional review body is a health care entity, or committee
thereof, that conducts an investigation regarding the competence or professional
conduct of an individual physician to determine whether the physician’s clinical
privileges should be limited. Id. § 11151(11). A professional review action is a
recommendation or decision by a professional review committee that could
adversely affect a physician’s clinical privileges. Id. § 11151(9).
23
In this case, Dr. Rutherford published a post on his social media page
(“ConnectSpace”) expressing his concerns over the link between childhood
vaccinations and autism. (R. at 2.) That same week, HUGH initiated a “request for
corrective action,” pursuant to its Medical Staff Bylaws, to investigate the
professional conduct of Dr. Rutherford. (R. at 3.) Following the corrective action,
Dr. Polishov, the HUGH Chief of Medicine and chair of its Medical Executive
Committee (“MEC”), assembled an ad hoc review committee to conduct the
investigation of Dr. Rutherford. (R. at 2-4.) HUGH’s professional review committee
investigated Dr. Rutherford, determined that Dr. Rutherford’s clinical privileges
should be revoked, and had its decision accepted by the MEC. (R. at 16.)
Thereafter, Dr. Rutherford brought the present action against HUGH under 42
U.S.C. § 1983, claiming violations of his First Amendment rights, as well as three
state law claims for breach of contract, intentional infliction of emotional distress,
and defamation. (R. at 15.)
Even though HUGH has no HCQIA immunity against the § 1983 claim, HUGH
has asserted the defense of statutory immunity under the HCQIA against Dr.
Rutherford’s state law claims. See Reyes v. Wilson Mem’l Hosp., 102 F. Supp. 2d
798, 821 (S.D. Ohio 1998) (holding that there is no HCQIA immunity for § 1983
claims). However, a professional review body is only entitled to immunity under the
HCQIA for state law claims if the professional review action meets four
requirements. 42 U.S.C. § 11111(a)(1). The professional review action must be
taken (1) with the “reasonable belief that the action was in the furtherance of
quality health care,” (2) “after a reasonable effort to obtain the facts of the matter,”
(3) “after adequate notice and hearing procedures are afforded to the physician” or
24
after other procedures are provided that are fair to the physician “under the
circumstances,” and (4) “in the reasonable belief that the action was warranted by
the facts known.” Id. § 11112(a). The HCQIA creates a presumption that HUGH
has met these four requirements unless Dr. Rutherford rebuts the presumption by a
preponderance of the evidence. Id. § 11112(a)(4).
In making this determination, this Court should adopt the Twelfth Circuit’s rule
that evidence of a professional review committee’s bias should be considered in
determining whether HUGH is entitled to immunity under the HCQIA. See (R. at
22-23.) This Court should also hold that HUGH’s professional review action was
not based upon Dr. Rutherford’s competence or professional conduct as a physician;
instead, the professional review action was based upon the ad hoc committee’s bias
following Dr. Rutherford’s ConnectSpace post. (R. at 17.) Dr. Rutherford has
provided sufficient evidence to rebut the presumption that HUGH’s professional
review action met any of the requirements under the HCQIA. (R. at 17.)
Accordingly, HUGH’s professional review action is not entitled to immunity under
the HCQIA for Dr. Rutherford’s state law claims.
A. This Court should adopt the Twelfth Circuit’s rule that the bias of a
professional review committee is relevant in determining whether
the committee is entitled to immunity under the Health Care Quality
Improvement Act.
The Twelfth Circuit correctly held that evidence of a professional review
committee’s bias is relevant in determining immunity under the HCQIA. The
HCQIA creates an exception to immunity for any professional review action based
on anything other than “the competence or professional conduct of a physician.” 42
U.S.C. § 11151. Furthermore, Congress enacted the HCQIA to encourage “good
25
faith professional review activities.” H.R. REP. NO. 99-903, at 1 (1986), reprinted in
1986 U.S.C.C.A.N. 6384, 6384. In recognition of this concern, Congress created the
due process requirements of § 11112(a)(3) to ensure that “physicians [would] receive
fair and unbiased review to protect their reputation and medical practices.” Id. at
9; Austin, 979 F.2d at 741 n.3 (Pregerson, J., dissenting). Conversely, the
conclusion HUGH wishes this Court to adopt – that the bad faith of professional
review committee members is irrelevant – ignores the intent of Congress in
enacting the HCQIA. Austin, 979 F.2d at 741 (Pregerson, J., dissenting).
Therefore, pursuant to the stated intent of Congress, the bias of a professional
review committee is relevant to determining the reasonableness of a professional
review action. Id.
1. Congress intended this Court to consider evidence of HUGH’s bias
in determining the reasonableness of its professional review
action.
Congress intended for the bias of a professional review committee to be
considered in determining the reasonableness of its professional review action. (R.
at 22.); Austin, 979 F.2d at 741 (Pregerson, J., dissenting). The HCQIA was created
to “encourage good faith professional review activities.” H.R. REP. NO. 99-903, at 1;
see Black’s Law Dictionary 713 (8th ed. 2004) (defining good faith as a “state of
mind consisting in (1) honesty in belief of purpose, . . . or (4) absence of intent to
defraud or seek unconscionable advantage”). Further, the HCQIA protects patients
from abuse by bad doctors “without insulating improper anticompetitive behavior
from redress.” H.R. REP. NO. 99-903, at 3. Even though Congress initially
considered using a subjective good faith test, it changed the standard to a more
objective “reasonable belief” standard. See Anthony W. Rodgers, Comment,
26
Procedural Protections During Medical Peer Review: A Reinterpretation of the
Health Care Quality Improvement Act of 1986, 111 Penn. St. L. Rev. 1047, 1056
(2007) (citing the HCQIA legislative history). Congress feared that courts would
misinterpret the standard “as requiring only a test of the subjective state of mind”
of the professional review committee members. Id.
However, out of concern that the act “might be abused and serve as a shield for
anti-competitive economic actions under the guise of quality controls,” Congress
limited the immunity under the HCQIA so that the bias of the professional review
committee could be considered. See H.R. REP. NO. 99-903, at 9. The HCQIA
specifically excepts from immunity those professional review actions that are based
on “any other matter that does not relate to the competence or professional conduct
of a physician.” 42 U.S.C. § 11151(9)(A-E). This would include actions taken
against a physician based on bad faith and ulterior motives. See id.; Rodgers v.
Columbia/HCA of Cent. La., Inc., 971 F. Supp. 229, 234 (W.D. La. 1997) (finding
Congress included the improper motivations for professional review under §
11151(9)(A-E) in recognition that courts “must be wary of vigilante capitalism
disguised as peer review”). Furthermore, this Court has previously recognized that
“actions . . . taken for anticompetitive purposes will not be protected” under § 11111
of the HCQIA. Summit Health Ltd. v. Pinhas, 500 U.S. 322, 332 n.12 (1991)
(quoting remarks made by the HCQIA House Sponsor, Rep. Waxman). Moreover,
Congress created the due process requirements of § 11112(a)(3) to ensure
“physicians [would] receive fair and unbiased review to protect their reputation and
medical practices.” H.R. REP. NO. 99-903, at 9.
27
Consequently, a court that fails to consider the bias of a professional review
committee enables the “improper anti-competitive behavior” which Congress sought
to avoid by encouraging “good faith” professional review activities. H.R. REP. NO.
99-903, at 1, 3. Therefore, courts are required to do more than rubber stamp the
professional review committee’s decision. The courts must consider all relevant
evidence bearing on the reasonableness of the professional review action. Austin,
979 F.2d at 741 n.3 (Pregerson, J., dissenting). Accordingly, a court reviewing the
reasonableness of a professional review committee’s beliefs should “consider any
evidence of bias or ulterior motive even though an objective standard ultimately
applies.” Id. As a result, the legislative history of the HCQIA requires this Court to
follow the holding of the Twelfth Circuit and consider evidence of HUGH’s bias in
determining the reasonableness of its professional review action.
2. Contrary to Congress’ intent in enacting the Health Care Quality
Improvement Act, several circuit courts have incorrectly found a
professional review committee’s bias irrelevant.
A professional review committee’s bias is relevant in determining whether a
hospital has met the objective standards required to obtain immunity under the
HCQIA. This interpretation is consistent with the statutory language and intent of
Congress in enacting the HCQIA, even though several circuits have incorrectly
found otherwise. See Cholima v. St. John Med. Ctr., 693 F.3d 1269, 1277 (10th Cir.
2012) (misunderstanding the bias of a review panel to be irrelevant); Poliner v.
Texas Health Sys., 537 F.3d 368, 376 (5th Cir. 2008) (misinterpreting the
reasonableness requirements of the HCQIA as creating an objective standard of
performance, rather than a subjective good faith standard); Sugarbaker v. SSM
Health Care, 190 F.3d 905, 914 (8th Cir. 1999) (improperly stating bad faith was
28
irrelevant to an objective inquiry under the HCQIA); Bryan v. James E. Holmes
Med. Ctr., 33 F.3d 1318, 1335 (11th Cir. 1994) (incorrectly holding decision maker
bias irrelevant under the objective standards of the HCQIA). The confusion stems
from dictum found in the Ninth Circuit’s decision in Austin. See 979 F.2d at 734.
The Austin majority mistakenly concluded that bad faith of professional review
committee members is irrelevant because Congress intended to resolve issues of
immunity under the HCQIA at the summary judgment stage. Id. However, the
legislative history surrounding the enactment of the HCQIA indicate that this
conclusion is flawed. See supra Part II.A.1.
Furthermore, this Court has recognized that disagreement with a “clear majority
of the Circuits is not at all a rare phenomenon.” Buckhannon Bd. and Care Home,
Inc. v. W. Virginia Dept. of Health and Human Res., 532 U.S. 598, 621 (2001)
(disagreeing with a clear majority of Circuit interpretations of a federal fee-shifting
statute). In fact, this Court’s “opinions sometimes contradict the unanimous and
longstanding interpretation of lower federal courts.” Id. (citing McNally v. United
States, 480 U.S. 350, 365 (1987) (Stevens, J., dissenting)) (emphasis in original).
Therefore, evidence of a professional review committee’s bias is relevant even
though a majority of lower federal courts have wrongly decided otherwise.
Accordingly, this Court should adopt the Twelfth Circuit’s rule pursuant to
Congress’ intent in creating the HCQIA, and consider all relevant evidence of the
reasonableness of HUGH’s professional review action, including evidence of
HUGH’s bias.
29
B. Dr. Rutherford provided sufficient evidence to rebut the
presumption that HUGH’s professional review action complied with
any of the four requirements for immunity under the Health Care
Quality Improvement Act.
HUGH’s professional review action did not comply with any of the four elements
required for immunity under the HCQIA. Under the HCQIA, the professional
review action must meet four elements to obtain immunity. See 42 U.S.C. § 11112.
First, the physician must receive “adequate notice and hearing procedures” or
procedures which are “fair to the physician under the circumstances.” Id. §
11112(a)(3). Next, the professional review action must “be taken in the reasonable
belief that the action was in the furtherance of quality health care.” Id. §
11112(a)(1). Also, the professional review committee must make a “reasonable
effort to obtain the facts of the matter.” Id. § 11112(a)(2). Finally, the professional
review action must be taken “in the reasonable belief that the action was warranted
by the facts known” after a reasonable effort to obtain the facts. Id. § 11112(a)(4).
However, the HCQIA creates a presumption that HUGH is entitled to immunity
unless the presumption is rebutted by a preponderance of the evidence. See id. §
11112(a)(4).
This rebuttable presumption under the HCQIA creates “an unusual summary
judgment standard.” Austin, 979 F.2d at 734. Dr. Rutherford must offer evidence
that would allow a reasonable jury to conclude that HUGH’s professional review
disciplinary process failed to meet the standards of the HCQIA. See id. However,
Dr. Rutherford is only required to rebut one element by a preponderance of the
evidence in order to defeat HUGH’s immunity. 42 U.S.C. § 11111 (stating a
professional review action is entitled to a limitation on damages if the action meets
30
“all the standards specified” in 42 U.S.C. § 11112(a)); Brown v. Presbyterian
Healthcare Servs., 101 F.3d 1324, 1333 (10th Cir. 1996) (recognizing that a plaintiff
rebutting one element of the HCQIA is enough to defeat immunity). Dr. Rutherford
rebutted all four elements required for immunity under the HCQIA. Therefore,
HUGH is not entitled to immunity.
1. HUGH’s failure to provide adequate notice and hearing procedure
or procedures fair under the circumstances is fatal to its
immunity under the Health Care Quality Improvement Act.
Under 42 U.S.C. § 11112(a)(3), the third requirement for HCQIA immunity,
HUGH was required to provide “adequate notice and hearing procedures” to Dr.
Rutherford or other procedures that are fair “under the circumstances.” The third
element will be satisfied if the professional review committee complies with the
statute’s “safe-harbor” provisions. Id. § 11112(b); Bryan, 33 F.3d at 1334. Under
the safe-harbor provisions, the professional review committee must give notice to
the physician stating (1) the professional review action has been proposed to be
taken, (2) “reasons for the proposed action,” (3) that the physician has the right to
request a hearing and the time limit for making such a request, and (4) a summary
of the rights afforded the physician during a hearing conducted pursuant to the
safe-harbor provisions. 42 U.S.C. § 11112(b)(1). Even though failing to meet the
safe-harbor provisions is not fatal to immunity, a failure to provide procedures fair
to the physician under the circumstances will defeat the hospital’s immunity. Wahi
v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 608 (4th Cir. 2009).
31
(i) HUGH failed to provide adequate notice and hearing
procedures as required by the Health Care Quality
Improvement Act safe-harbor provision.
The notice and hearing procedures provided by HUGH were not sufficient to
satisfy the HCQIA. In order to provide adequate notice and hearing procedures
under the HCQIA, the professional review committee must comply with the HCQIA
safe-harbor provisions. 42 U.S.C. § 11112(b). In this case, the professional review
committee failed to meet the safe-harbor provisions because the committee failed to
provide accurate notice of the specific reasons for revoking Dr. Rutherford’s
privileges. H.R. REP. NO. 99-903, at 6. Further, the committee failed to notify Dr.
Rutherford that his ConnectSpace post was the motivating factor behind the
professional review action. Id.; see (R. at 23.).
The safe-harbor provisions of § 11112(b) were included to ensure physicians were
provided due process. Austin, 979 F.2d at 733; H.R. REP. NO. 99-903, at 6. Due
process under the safe-harbor provisions of § 11112(b)(1) requires a professional
review committee to inform the physician of the specific reasons for its decision.
H.R. REP. NO. 99-903, at 6 (stating adequate due process under § 11112(a)(3)
requires “notice of action, with reasons specified”). Furthermore, this Court has
long held that procedural due process requires “timely and adequate notice
detailing the reasons” for a proposed action so as to allow a proper opportunity to
respond. Goldberg v. Kelly, 392 U.S. 254, 267 (1970).
Here, the letter on July 31st did not provide Dr. Rutherford accurate notice. See
(R. at 5.) The letter only informed him of the revocation of his clinical privileges,
based on “unacceptably high rates of morbidity and post-operative complications,” a
32
failure to meet the standard of care, and “conduct that impedes quality patient
care.” (R. at 5.) The letter never stated the specific reasons the ad hoc review
committee determined were sufficient to revoke Dr. Rutherford’s clinical privileges
– the statistics of Dr. Rutherford’s patient care, alleged incidents of rudeness, two
patient complaints, or the single disruptive incident. (R. at 11, 22-23.)
Moreover, neither the letter on July 1st nor the letter on July 31st mentioned
the ConnectSpace post as the motivating factor behind the corrective action. See (R.
at 4-5.) As a result, the vague allegations found in the letter on July 31st were not
sufficient to provide accurate notice to Dr. Rutherford of the actual reasons for the
proposed professional review action. See Wahi, 562 F.3d at 610 (finding a
professional review committee’s stated reason, “in the best interests of patient care,”
was only sufficient because the physician was informed at a conference the same
day of the specific reasons for the decision). Therefore, Dr. Rutherford was not
provided adequate notice under the HCQIA safe-harbor provisions. See (R. at 22-
23.); Wahi, 562 F.3d at 610.
(ii) HUGH failed to provide adequate notice and hearing
procedures to Dr. Rutherford that were fair “under the
circumstances.”
The procedures followed by HUGH’s professional review committee revoking Dr.
Rutherford’s privileges were anything but fair under the circumstances. See (R. at
23.) (failing to find adequate notice and procedures under § 11112(a)(3)). Dr.
Rutherford supplied evidence that HUGH only provided “somewhat informal”
procedures during the professional review process. Further, he has provided
evidence that the professional review members were biased against him. As a
result, Dr. Rutherford has provided sufficient evidence to rebut the presumption
33
that HUGH provided adequate notice and procedures that were fair “under the
circumstances.” See (R. at 5, 23.); Braswell v. Haywood Reg’l Med. Ctr., 352 F. Supp.
2d 639, 651-52 (W.D.N.C. 2005); Islami v. Covenant Med. Ctr., Inc., 822 F. Supp.
1361, 1377-78 (N.D. Iowa 1992).
Dr. Rutherford provided evidence that HUGH provided only “somewhat
informal” procedures to revoke his clinical privileges, including a failure to follow
HUGH’s own Medical Staff Bylaws. The Fourth Circuit has explained that even
though compliance with a hospital’s medical staff bylaws is not essential for
immunity under § 11112(a)(3), “from a practical standpoint, compliance with its
bylaws may be proof that the procedures were fair to the physician under the
circumstances.” Wahi, 562 F.3d at 609; see Islami, 822 F. Supp. at 1377-78 (holding
a physician was not provided adequate procedures under the circumstances due to
the hospital’s failure to follow its bylaws). Therefore, even though compliance with
a hospital’s bylaws may not be conclusive of a failure to provide adequate
procedures under the HCQIA, it is relevant in determining whether the hospital’s
procedures were fair “under the circumstances.” Islami, 822 F. Supp. at 1377-78;
see also Meyers, 341 F.3d at 469-70 (recognizing a hospital’s compliance with its
bylaws is a relevant consideration under § 11112(a)(3)).
In this case, HUGH only provided “somewhat informal” procedures that were
anything but fair “under the circumstances.” in revoking Dr. Rutherford’s
privileges. (R. at 5, 23.) The meetings conducted by the ad hoc committee “had no
official chair, no secretary, no minutes, no observance of Robert’s Rules of Order,
and no tape recording of deliberations.” (R. at 5.) The greatest formality taken by
the committee was Dr. Ling taking notes on an iPad. (R. at 5.) The review
34
committee then took only twenty-three days to makes its decision, interviewing only
a “few members of the Hospital’s staff.” See (R. at 16.)
Furthermore, HUGH failed to comply with its own Medical Staff Bylaws. See (R.
at 25-26) (quoting Hanover University General Hospital Bylaws Article XIX). First,
there is no written or recorded complaint that forms the basis of a “justifiable
reason” for the professional review action. (R. at 12.) (citing Hospital Bylaws §
19.01(a) (requiring a written complaint to form the basis of a professional review
action)). Also, Dr. Polishov, the MEC chair, formed the professional review
committee without a written report, and the committee “made no written report to
the MEC.” (R. at 12.) (citing Hospital Bylaws § 19.01(b)-(e) (requiring the Medical
Executive Chair to make a written record when a review committee is formed and
the professional review committee to make a written record of its findings)).
Finally, the committee failed to interview “any of the other cardiologists on staff at
the hospital” or even consider “whether the corrective action was warranted.” (R. at
12.) (citing Hospital Bylaws § 19.02(a) (requiring the MEC to determine whether
corrective action is warranted by the facts)). These “informal” procedures followed
by the professional review committee provide a sufficient basis to rebut the
presumption that Dr. Rutherford was afforded procedures fair “under the
circumstances.” See (R. at 22-23.)
Moreover, Congress intended for “physicians to receive fair and unbiased review
to protect their reputations and medical practices” under the fairness requirements
of § 11112(a)(3). Austin, 979 F.2d at 741 n.3 (Pregerson, J., dissenting) (quoting the
HCQIA legislative history). This Court has stated that an “impartial decision
maker is essential” to providing fair procedures under procedural due process.
35
Goldberg, 397 U.S. at 270. Therefore, impartiality of a professional review
committee is “pertinent to what HCQIA has required for immunity.” (R. at 23.)
(citing Braswell, 352 F. Supp. 2d at 651-52 (finding the plaintiff sufficiently “alleged
that he was not provided fair procedures under the circumstances because those
individuals reviewing his patient care were personally biased against him”)).
In this case, HUGH’s professional review committee was made up of persons
with “biases, conflicts of interest and hostile agendas.” (R. at 13.) As the trial court
found, Dr. Glower and Dr. Polishov viewed Dr. Rutherford’s ConnectSpace post
“bad-mouthing” their initiative, the “99 Percent” initiative. (R. at 3.) Dr. Polishov
instituted the corrective action only a few days after the disagreement over Dr.
Rutherford’s ConnectSpace post and assigned Dr. Glower to the professional review
committee. (R. at 22.) Furthermore, the second member of the committee, Seamus
Milk, was the retired “life partner” of Dr. Polishov and had not performed surgery
at HUGH since 2011. (R. at 12.) Ronald Ling, the final member of the committee
was also “invested in the 99 Percent initiative” and, therefore, “personally and
professionally aligned with Dr. Glower.” (R. at 13.) Finally, as the trial court
further found, Mary Elizabeth Kreutzer attended meetings “for the sole purpose of
relaying hearsay complaints about [Dr. Rutherford] from nurses.” (R. at 13.)
As a result, the HUGH’s professional review committee was not impartial and
only interested in providing enough evidence to support their pre-determined
conclusions. Accordingly, the informal procedures provided and biases of the
professional review committee provide sufficient evidence to rebut the presumption
that HUGH provided procedures fair “under the circumstances.” See (R. at 23.)
Therefore, Dr. Rutherford rebutted the presumption that HUGH’s professional
36
review action is entitled to immunity because HUGH failed to follow the safe-harbor
provisions or provide procedures fair “under the circumstances.”
2. HUGH’s failure to take its professional review action “in the
furtherance of quality health care” is fatal to its immunity under
the Health Care Quality Improvement Act.
As the Twelfth Circuit properly held, Dr. Rutherford has provided sufficient
evidence to rebut the presumption that HUGH is entitled to immunity under the
HCQIA because the professional review action revoking Dr. Rutherford’s clinical
privileges was not taken in the furtherance of quality health care. (R. at 22.) On
the contrary, the professional review action was taken to restrict Dr. Rutherford
from disturbing Dr. Glower’s project, the “99 Percent” initiative. (R. at 16.) The
first requirement necessary for HCQIA immunity provides that a professional
review committee must make its decision in the “reasonable belief that the action
was in the furtherance of quality health care.” 42 U.S.C. § 11112(a)(1). Under §
11112(a)(1), the professional review committee must have reasonably concluded
their action “would restrict incompetent behavior or would protect patients.”
Meyers, 341 F.3d at 468.
However, a professional review action based on “any other matter that does not
relate to the competence or professional conduct of a physician” is not afforded
immunity under the HCQIA. 42 U.S.C. § 11151(9)(E). Congress created this
exception in recognition that courts “must be wary of vigilante capitalism disguised
as professional review.” Rodgers, 971 F. Supp. at 234. Furthermore, this Court has
recognized that “actions . . . taken for anticompetitive purposes will not be
protected” under the HCQIA. See Pinhas, 500 U.S. at 332 n.12. Consequently,
evidence of the professional review committee’s motivations must be reviewed to
37
determine if the professional review action was pre-textual based on outside
competitive incentives or properly based on the incompetence of a particular
physician. See (R. at 22-23); Rodgers, 971 F. Supp. at 234 (finding HCQIA
immunity could apply because the professional review action was not pre-textual;
the primary reason for the action was the incompetence of the physician); see also
supra Part II.A.
As the Twelfth Circuit correctly found, the professional review action taken
against Dr. Rutherford was pre-textual because the corrective action was initiated
based solely on Dr. Rutherford’s ConnectSpace post. (R. at 22.) (holding a
“recommendation bolstered by flimsy evidence that was jerry-rigged to support a
foreordained result does not restrict incompetent behavior or protect patients.”).
Furthermore, HUGH’s revocation of Dr. Rutherford’s privileges is “highly
questionable” based on the timing of the action, composition of the committee, and
lack of evidence. (R. at 21.) One week after Dr. Rutherford posted his comments
concerning the “99 Percent” Grant to his ConnectSpace page, the corrective action
against him was initiated. (R. at 1.)
The day after the ConnectSpace post, Dr. Glower sent a text message to Dr.
Polishov, the head of the MEC, informing her that Dr. Rutherford had “taken a
swipe” at the “99 Percent” initiative. (R. at 2.) In his deposition, Dr. Glower
admitted that after reading the ConnectSpace post, he and Dr. Polishov again spoke
about the way in which Dr. Rutherford was “disrupting the initiative.” (R. at 3.)
Furthermore, Dr. Glower bluntly stated in an email, “[h]e’ll take us down with him
if he can & you know it.” (R. at 3.) That week, Dr. Polishov initiated the “request
for corrective action” inquiry into Dr. Rutherford as a member of the active staff,
38
even though no recent complaint had been made against Dr. Rutherford that would
support such an action. (R. at 3.)
Dr. Polishov then assembled an ad hoc committee consisting of doctors
personally and professionally aligned with her and Dr. Glower. The professional
review committee consisted of Dr. Glower; Seamus Milk, the retired life-partner of
Dr. Polishov; and Dr. Ling, another member of the active staff professionally
invested in the “99 Percent” initiative. (R. at 13.) The committee was formally
organized on July 8, 2012, and it spent only twenty-three days reviewing records
and interviewing a “few members of the hospital’s staff.” (R. at 4.) The committee
then made a recommendation to the MEC, on which Dr. Glower, Dr. Ling, and Dr.
Polishov all sit. (R. at 4 n.3.)
Moreover, the little evidence HUGH asserts as the basis for its professional
review action does not “hold water” in light of Dr. Rutherford’s long and
distinguished twenty-three year career at HUGH as an “esteemed cardiac surgeon”
who has treated some of the “most physically vulnerable” patients. (R. at 1, 5.) On
the contrary, Dr. Rutherford has refuted the only substantive evidence offered by
HUGH in his letter to the MEC. (R. at 5.) He stated in his letter to the MEC that a
failure in the HVAC system that pumped sewer-exhaust into his recovery rooms for
several months and his treatment of some of the most physically vulnerable
patients accounts for his higher than average infection and morbidity rates. (R. at
5.) Consequently, the timing of the professional review action, composition of the ad
hoc committee, and lack of evidence to support the revocation of Dr. Rutherford’s
privileges provide sufficient evidence to rebut the presumption that the professional
review action was taken to restrict incompetent behavior or protect patients. As a
39
result, this pre-textual professional review action is not entitled to immunity under
the HCQIA. See 42 U.S.C. § 11151(9)(E); Rodgers, 971 F. Supp. at 234.
3. HUGH’s failure to make a reasonable effort to obtain the facts of
the matter is fatal to its immunity under the Health Care Quality
Improvement Act.
Dr. Rutherford rebutted the presumption of immunity under the HCQIA by
providing sufficient evidence that HUGH failed to make a reasonable effort to
obtain the facts necessary to revoke his clinical privileges. The second element for
immunity under the HCQIA requires “a reasonable effort to obtain the facts of the
matter.” See 42 U.S.C. § 11112(a)(2). This determination is made by looking to the
totality of the process leading up to the professional review action. Poliner, 537
F.3d at 380.
In Meyers v. Columbia/HCA Healthcare Corp., the Sixth Circuit found that a
reasonable effort to obtain the facts was made where the ad hoc committee,
credentials committee, and an independent committee reviewed twenty-two written
complaints and later heard testimony from thirty-five witnesses. 341 F.3d at 468-
69. It determined that the “exhaustive review process” was sufficient to constitute a
reasonable effort to obtain the facts. Id. at 469. Similarly, the Third Circuit, in
Mathews v. Lancaster General Hospital, determined that a reasonable effort to
obtain the facts was made where a hospital conducted two investigations, one by an
independent reviewer, which reviewed 208 cases and lasted over two years. 87 F.3d
at 637. Moreover, the Twelfth Circuit has properly noted that a professional review
committee’s “reliance on a thin and misleading portion of the physician’s record”
presents sufficient evidence that the committee did not make a reasonable effort to
obtain the facts. (R. at 22.) (citing Brown, 101 F.3d at 1324).
40
In this case, HUGH did not make a reasonable effort to obtain the facts in its
investigation of Dr. Rutherford. It gave notice to Dr. Rutherford that it would
review a broad range of information including “mortality and infection rates . . .
adverse drug reactions, improper drug utilizations, . . . autopsy findings, sentinel
events, malpractice claims, and patient complaints.” (R. at 4, 22.) Yet, HUGH
limited its investigation to only six out of Dr. Rutherford’s twenty-three year career
at HUGH. (R. at 1,4.) Furthermore, the ad hoc committee only spent twenty-three
days reviewing Dr. Rutherford’s cases and interviewed a “few members of the
Hospital’s staff.” (R. at 16.)
After this brief investigation, the professional review committee found only two
slightly higher-than-average statistics, some alleged opinions of “rudeness,” two
complaints, and one reported incident in six years. (R. at 11.) This evidence is not
sufficient to constitute a “reasonable effort to obtain the facts.” See Brown, 101 F.3d
at 1333-34. Therefore, by showing the absence of any reasonable effort to
investigate beyond a “thin and misleading portion” of Dr. Rutherford’s record, Dr.
Rutherford has rebutted the presumption that HUGH made a reasonable effort to
obtain the facts of the matter. See 42 U.S.C. § 11112(a)(2); (R. at 22.)
4. HUGH’s failure to base its revocation of Dr. Rutherford’s
privileges on a reasonable belief that the action was warranted by
the facts known is fatal to its immunity under the Health Care
Quality Improvement Act.
Dr. Rutherford rebutted the fourth element under the HCQIA, 42 U.S.C. §
11112(a)(4), by providing sufficient evidence that HUGH’s professional review
action was not taken in the reasonable belief that the action was warranted by the
facts known. To meet this element, the professional review action must be “tailored
41
to address the health care concerns” raised by the committee’s investigation.
Poliner, 537 F.3d at 384.
For example, in Poliner v. Texas Health Systems, a committee of six cardiologists
determined that the plaintiff physician rendered substandard care to patients in the
catheterization lab in over half of the forty-four cases reviewed by the committee.
Id. at 378-79. The Fifth Circuit held that the professional review action limiting
only the physician’s privileges in the catheterization lab was warranted by the facts
because the revocation of privileges was tailored to remedy the care provided by the
physician in the lab. Id. at 384. Similarly, in Mathews, a professional review
committee limited a physician’s spine surgery privileges pursuant to an
independent review that concluded the physician had performed below the standard
of care in fourteen different areas of spine surgery. 87 F.3d at 629-30. The Third
Circuit held the action revoking the physician’s privileges to conduct spine surgery
was warranted by the facts because the action was “tailored to address the health
care concerns raised” by the independent review – substandard care in performing
spine surgery. Id. at 638.
In contrast, the professional review committee in this case did not properly limit
its action to revoke Dr. Rutherford’s privileges based on the care he provided. There
is no evidence that the MEC even considered whether the complete revocation of Dr.
Rutherford’s clinical privileges was required. See (R. at 12.) The professional
review committee’s findings of slightly higher rates of morbidity, post-operative
infections, and three specific incidents of disruptive behavior in six years did not
require the complete revocation of Dr. Rutherford’s privileges to perform surgery in
the hospital. See (R. at 5.)
42
Furthermore, HUGH’s professional review action also fails to satisfy the fourth
element under the HCQIA because it failed to provide adequate notice and
procedures under § 11112(a)(3). See 42 U.S.C. § 11112(a)(4) (requiring adequate
notice and procedures under § 11112(a)(3) before an action can be warranted by the
facts). As a result, HUGH’s failure to tailor its decision to its findings, as well as its
failure to provide adequate notice and hearing procedures, is sufficient to rebut the
presumption that HUGH’s professional review action was warranted by the facts.
See 42 U.S.C. § 11112(a); (R. at 23.) This is fatal to HUGH’s immunity under the
HCQIA.
In sum, Dr. Rutherford rebutted HUGH’s presumption of immunity under the
HCQIA. He provided sufficient evidence that HUGH’s professional review action
was not taken: (1) in the reasonable belief that it was in the furtherance of quality
health care; (2) after a reasonable effort to obtain the facts; (3) after adequate notice
and hearing procedures, or procedures fair “under the circumstances”; or (4) in the
reasonable belief that the action was warranted by the facts. Therefore, HUGH is
not entitled to immunity under the Health Care Quality Improvement Act.
43
CONCLUSION
For the reasons set forth above, this Court should hold that Dr. Rutherford’s
First Amendment right to freedom of speech was violated when HUGH terminated
his clinical privileges based upon his private ConnectSpace post. This Court should
also adopt the Twelfth Circuit’s interpretation of the Health Care Quality
Improvement Act that allows for bias of a professional review committee to be
considered in determining immunity is afforded to a health care entity. Following
this rule, this Court should affirm the Twelfth Circuit’s ruling that Dr. Rutherford
rebutted HUGH’s presumption of immunity under the Health Care Quality
Improvement Act.
Respectfully Submitted,
/s/ Counsel for Respondents
______________________________
Counsel for Respondents
a
APPENDIX A
42 U.S.C. § 11111, in pertinent part:
(a) In general
(1) Limitation on damages for professional review actions
If a professional review action (as defined in section 111151(9) of this
title) of a professional review body meets all the standards specified in
section 11112(a) of this title, except as provided in subsection (b) of this
section--
(A) the professional review body,
(B) any person acting as a member or staff to the body, . . .
(D) any person who participates with or assists the body with
respect to the action,
shall not be liable in damages under any law of the
United States or of any State (or political subdivision
thereof) with respect to the action. The preceding
sentence shall not apply to damages under any law of the
United States or any State relating to the civil rights of
any person or persons, including the Civil Rights Act of
1964, 42 U.S.C. 2000e, et seq. and the Civil Rights Acts,
42 U.S.C. 1981, et seq. . . .
b
APPENDIX B
42 U.S.C. § 11112, in pertinent part:
(a) In general
For purposes of the protection set forth in section 11111(a) of this title,
a professional review action must be taken--
(1) in the reasonable belief that the action was in the furtherance of
quality health care,
(2) after a reasonable effort to obtain the facts of the matter
(3) after adequate notice and hearing procedures are afforded to the
physician involved or after such other procedures are fair to the
physician under the circumstances, and
(4) in the reasonable belief that the action was warranted by the
facts known after such reasonable effort to obtain facts and after
meeting the requirement of paragraph (3).
A professional review action shall be presumed to have met the
preceding standards necessary for the protection set out in section
11111(a) of this title unless the presumption is rebutted by a
preponderance of the evidence.
(b) Adequate notice and hearing
A health care entity is deemed to have met the adequate notice and
hearing requirement of subsection (a)(3) of this section with respect to
a physician if the following conditions are met (or waived by
voluntarily by the physician):
(1) Notice of proposed action
The physician has been given notice stating--
(A)(i) that professional review action has been proposed to be
taken against the physician,
(ii) reasons for the proposed action,
(B)(i) that the physician has the right to request a hearing on
the proposed action,
c
(ii) any time limit (of not less than 30 days) within which to
request such a hearing, and
(C) a summary of the rights in the hearing under paragraph
(3). . . .
A professional review body’s failure to meet the conditions described in
this subsection shall not, in itself, constitute failure to meet the
standards of subsection (a)(3) of this section. . . .
d
APPENDIX C
42 U.S.C. § 11151, in pertinent part:
In this chapter:
(1) The term “adversely affecting” including reducing, restricting,
suspending, revoking, denying, or failing to review clinical privileges or
membership in a health care entity. . . .
(3) The term “clinical privileges” include privileges, membership on the
medical staff, and the other circumstances pertaining to the furnishing
of a medical care under which a physician or other licensed health care
practitioner is permitted to furnish such care by a health care entity.
(4)(A) The term “health care entity” means--
(i) a hospital that is licensed to provide health care services by the
State in which it is located. . . .
(5) The term “hospital” means an entity described in paragraphs (1) and
(7) of section 1395x(e) of this title. . . .
(8) The term “physician” means a doctor of medicine or osteopathy or a
doctor of dental surgery or medical dentistry legally authorized to
practice medicine and surgery or dentistry by a State (or any
individual who, without authority holds himself or herself out to be so
authorized).
(9) The term “professional review action” means an action or
recommendation of a professional review body which is taken or made
in the conduct of professional review activity, which is based on the
competence or professional conduct of an individual physician (which
conduct affects or could affect adversely the health or welfare of a
patient or patients), and which affects (or may affect) adversely the
clinical privileges, or membership in a professional society, of the
physician. Such term includes a formal decision of a professional
review body not to take an action or make a recommendation described
in the previous sentence and also includes professional review
activities relating to a professional review action. In this chapter, an
action is not considered to be based on the competence or professional
conduct of a physician if the action is primarily based on--
(A) the physician’s association, or lack of association, with a
professional society or association,
e
(B) the physician’s fees or the physician’s advertising or engaging in
other competitive acts intended to solicit or retain business,
(C) the physician’s participation in prepaid group health plans,
salaried employment , or any other manner of delivering health
services whether on a fee-for-service or other basis,
(D) a physician’s association with, supervision of, delegation of
authority to, support for, training of, or participation in a
private group practice with, a member or members of a
particular class of health care practitioner or professional, or
(E) any other matter that does not relate to the competence or
professional conduct of a physician.
(10) The term “professional review activity” means an activity of a health
care entity with respect to an individual physician--
(A) to determine whether the physician may have clinical privileges
with respect to, or membership in, the entity,
(B) to determine the scope or conditions of such privileges or
membership, or
(C) to change or modify such privileges or membership.
(11) The term “professional review body” means a health care entity and
the governing body or any committee of a health care entity which
conducts professional review activity, and includes any committee of
the medical staff of such an entity when assisting the governing body
in a professional review activity. . . .
f
APPENDIX D
Hanover University General Hospital Bylaws Article XIX: Corrective Action
19.01 Request for Corrective Action and Investigations
(a) Any person or committee may provide information, in writing, to any member
of the Medical Executive Committee (MEC) about the conduct, performance,
or competence of any physician member of the medical staff (“physician
member”). If reliable information indicates a physician member may have
exhibited acts, demeanor (temperament), or conduct, reasonably likely to be
detrimental to patient safety or to the delivery of quality patient care,
disruptive to Hospital operations, contrary to the bylaws or Hospital staff
rules, or below applicable professional standards, the MEC may initiate an
investigation against such member, after considering whether collegial
intervention may be appropriate.
(b) If the MEC determines that an investigation would be appropriate, it shall
make a record of this action in its official minutes.
(c) If the MEC determines that an investigation would be appropriate, the Chair
of the MEC may appoint an ad hoc committee to undertake that
investigation. The ad hoc committee will be given such charge as deemed
appropriate.
(d) The investigating committee shall conduct an appropriate review of the
relevant medical records, and may, but need not, conduct interviews with
persons knowledgeable about the practitioner under review. The
investigating party should give strong consideration to outside peer review,
especially if there is a lack of expertise among medical staff members in the
subject under review, there is likely to be a lack of consensus among the
committee members, or there is a reasonable probability of litigation.
(e) If the investigation is delegated to an ad hoc committee, the committee shall
proceed in a prompt manner and submit a written report of the committee’s
findings.
(f) The physician member shall be notified, in writing, that the investigation is
being conducted, along with its basis and intended scope, and shall be given
an opportunity to provide information in a manner and upon such terms as
the investigating body deems appropriate. The investigation shall not be
considered a “hearing” at any point in the process.
(g) The investigation report should be submitted to the MEC as soon as
practicable, but in any case, no longer than ninety days after initiation of the
g
investigation. The report may include recommendations for appropriate
corrective action.
(h) At all times the MEC retains the authority and discretion to take whatever
action it feels are warranted by the circumstances to protect the Hospital, its
staff and its patients, including suspension or limitations on the exercise of
privileges.
19.02 Determination of Corrective Action; Fair Hearing
(a) At the conclusion of the investigation and receipt of the investigation report,
the MEC will determine whether corrective action is warranted. The MEC
will indicate this finding in its minutes and so notify the physician member.
If an ad hoc committee investigation has taken place, the MEC will notify the
member of its determination no later than seven business days after
receiving the ad hoc committee’s report.
(b) Upon notification of the MEC’s decision, if it determines that corrective
action is appropriate, the physician member shall promptly be given special
notice thereof by the Chair of the MEC. This special notice will include a
description of the adverse action and the reasons for it, a copy of these
Bylaws, and an offer to provide the physician member a fair hearing
regarding the MEC’s determination. The notice will also inform the physician
member that the adverse action or recommendation, if finally adopted by the
Board, may result in a report to the state licensing authority (or other
applicable state agencies) and the National Practitioner Data Bank.
(c) The physician member shall have thirty (30) days following the date of
receipt of such notice within which to request a fair hearing, which shall take
place as soon as practicable but no later than seven business days after the
request is made. The MEC will appoint a Hearing Board to preside over the
fair hearing. The physician member may waive the right to the fair hearing
by submitting such waiver in writing to the MEC.
(c) After completion of the fair hearing, if one is requested, the MEC shall
provide its final determination to the physician member within three
business days. If no fair hearing is requested, the final determination will be
provided within three business days after last date for requesting a fair
hearing.
(d) The physician member may appeal the decision of the MEC to the Hospital
Board of Trustees within seven business days of receipt of the MEC’s final
determination. [process of appeal deleted] The Board of Trustee’s decision
will be final.
CERTIFICATE OF SERVICE
We certify that a copy of Respondents’ brief was served upon the HUGH,
Hanover University General Hospital, through counsel of record by certified U.S.
mail return requested, on this, the 26th of September, 2013.
/s/ Counsel for Respondents
__________________________
Counsel for Respondents
