No. 13-1076 IN THE Supreme Court of the United Statesvi 2. HUGH’s thorough investigation, which included patient outcome data, staff interviews, and reported complaints, constituted

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; Alicia Polishov,

Petitioners

v.

Thomas L. Rutherford,

Respondent

On Writ of Certiorari to the

United States Court of Appeals

For the Twelfth Circuit

BRIEF FOR PETITIONERS

Team 1310

Attorneys for Petitioners

ii

QUESTIONS PRESENTED

1. Did the Twelfth Circuit err when it determined that the First Amendment

protected Respondent’s ConnectSpace post on vaccinations, under the

Pickering-Connick test, even though Respondent likely spoke on behalf of his public employer and this disruptive speech threatened the public health

needs of Hanover’s children?

2. Did the Twelfth Circuit err when it determined that Respondent presented

enough evidence to rebut Hanover University General Hospital’s

presumption of immunity, even though the Hospital sufficiently met all four

requirements of the Health Care Quality Improvement Act of 1986, which

included an objective review of all evidence to further the statute’s legislative

intent?

iii

PARTIES TO THE PROCEEDING

Dr. Thomas L. Rutherford, (“Respondent”) filed this action against Hanover

University General Hospital (“HUGH”), along with Anthony B. Glower, M.D., Mary

Elizabeth Kreutzer, R.N. D.N.P., Seamus O. Milk, M.D., and Alicia Polishov, M.D.,

(collectively “Petitioners”) in the United States District Court for the District of

Hanover. Respondent claimed deprivation of his First Amendment right to free

speech under 42 U.S.C. § 1983, as well as several common law claims. Petitioners

filed a Motion for Summary Judgment, which the District Court granted on all

claims. Respondent filed an appeal in the United States Court of Appeals for the

Twelfth Circuit, which reversed the District Court decision. Petitioners then filed a

Petition for Certiorari. This Court entered its Order granting Certiorari on July 16,

2013.

iv

TABLE OF CONTENTS

QUESTIONS PRESENTED…………………………………………………………………ii

PARTIES TO THE PROCEEDINGS………………………………………………………iii

TABLE OF CONTENTS……………………………………………………………………..iv

TABLE OF AUTHORITIES………………………………………………………………...vii

OPINIONS BELOW…………………………………………………………………………..xi

STATEMENT OF JURISDICTION……………………………………………………...…xi

STATUTORY AUTHORITY…….…………………………………………………………...xi

STATEMENT OF THE CASE………………………………………………………………..1

A. STATEMENT OF FACTS………………………………………………………...1

B. PROCEDURAL HISTORY………………………………………………………..5

SUMMARY OF THE ARGUMENT..………………………………………………………..7

ARGUMENT…………………………………………………………………………………..10

I. THIS COURT SHOULD REVERSE THE TWELFTH CIRCUIT’S DECISION

BECAUSE RESPONDENT’S UNPROFESSIONAL AND POTENTIALLY

DANGEROUS CONNECTSPACE POST IS NOT PROTECTED SPEECH

UNDER THE PICKERING-CONNICK FIRST AMENDMENT BALANCING TEST……………………………………………………………………………………...10

A. Under The First Prong Of The Pickering-Connick Test, Respondent’s Speech Is Not Protected Because When He Published The ConnectSpace

Post, He Spoke As A Public Employee On Behalf Of The Hospital, As

Evidenced By Inclusion of HUGH’s Name And The Use Of The Word

“We” To Reference HUGH...…………………………………………………..12

1. Respondent spoke as a public employee on behalf of HUGH,

pursuant to his official duties as a physician………………………13

2. Alternatively, if this Court concludes that Respondent did not

speak pursuant to his official duties, then his speech is still not

protected because it was published to redress a personal

grievance…………………………………………………………………17

B. Under The Second Prong of The Pickering-Connick Test, HUGH Acted Like A Reasonable Manager When It Revoked Respondent’s Privileges

Because His ConnectSpace Post Posed A Future Threat of Tangible

v

Interference With HUGH’s Operations, Employee Morale, And Renewal

of the 99% Grant.……………………………………………………………….19

1. HUGH revoked Respondent’s privileges because it reasonably

believed that the post would be disruptive, harmful, and

threatening to HUGH’s operations…………………………………..20

2. Revoking Respondent’s privileges lessened present and future

threats to employee morale and compliance with meeting the 99%

Grant’s required vaccination benchmarks………………………….24

C. Under The Third Prong of The Pickering-Connick Test, Summary Judgment Is Appropriate Because Respondent Has Not Offered Any

Evidence Beyond Mere Speculation That His ConnectSpace Post Was A

Substantial Or Motivating Factor In HUGH’s Decision To Revoke His

Privileges.………………………………………………………………………..26

1. Respondent has not produced any evidence to demonstrate that

his speech motivated HUGH to take adverse action against his

employment..............................................……………………………27

2. Absent Respondent’s speech, HUGH still would have taken

adverse action due to his poor performance as a surgeon............28

II. THIS COURT SHOULD REVERSE THE TWELFTH CIRCUIT’S DECISION

BECAUSE RESPONDENT HAS FAILED TO REBUT HUGH’S PRESUMED

IMMUNITY UNDER THE HCQIA, AS HE ONLY POINTS TO EVIDENCE OF

SUBJECTIVE BIAS, WHICH IS IRRELEVANT UNDER THE STATUTE’S

REQUIRED OBJECTIVE STANDARD………………………………………….....29

A. The Ad Hoc Committee Was Correct To Objectively Evaluate Patient

Outcome Data, Which Included Mortality Rates, Infection Rates And

Staff Reports, And To Ignore Any Evidence Of Decision Maker Bias....30

B. This Court Should Grant HUGH Immunity Because The Ad Hoc

Committee Demonstrated Evidence To Satisfy All Four Prongs Of The

HCQIA, While Respondent Failed To Present Any Evidence To Rebut

That Presumption......………………………………………………………….35

1. To further the quality of health care services delivered to the

Hanover community, HUGH was obligated to restrict

Respondent’s privileges when it discovered his poor surgical

outcome data and consistent unprofessional behavior……………36

vi

2. HUGH’s thorough investigation, which included patient outcome

data, staff interviews, and reported complaints, constituted a

reasonable effort to obtain the facts of Respondent’s professional

medical practice during his review period. ………………………...42

3. Fair notice was provided to Respondent, who declined a hearing,

and any oversight in complying with HUGH’s Bylaws does not, on

its own, deny immunity.………………………………………............46

4. HUGH’s revocation of Respondent’s privileges was taken based

only on a reasonable belief that such revocation was warranted by

the facts obtained, through a reasonable effort by the entire ad

hoc committee……………………………………………………..........50

APPENDIX…………………………………………………………………………………….55

vii

TABLE OF AUTHORITIES

Cases Page

Austin v. McNamara, 979 F.2d 728 (9th Cir. 1992) .................................... 10,35,36,50

Badri v. Huron Hosp., 691 F. Supp. 2d 744 (S.D. Tex. 2010)................................ 42,43

Brader v. Allegheny Gen. Hosp., 167 F.3d 832 (3rd Cir. 1999) ............................ 50,52

Bradly v. Pittsburg Bd. of Edu., 913 F.2d 1064 (3rd Cir. 1990) ...................... 26,28,29

Bryan v. James E. Holmes Regional Medical Ctr., 33 F.3d 1318 (11th Cir. 1994) ………………………………………...……………………………………….34, 36,40,50,52

Chalal v. Northwest Med. Ctr., 147 F.Supp. 2d 1160 (N.D. Ala. 2000) ..................... 52

Clark v. Columbia/HCA Information Services, 25 P.3d 215 (Nev. 2001) .................. 34

Cohlmia v. St. John Medical Center, 693 F.3d 1269 (10th Cir. 2012) ....................... 37

Connick v. Myers, 461 U.S. 138 (1983) .................................................................. 11,20

Crawford-El v. Britton, 523 U.S. 574 (1998). ............................................................. 24

Demers v. City of Austin, No. 11-35558, 2013 U.S. App. Lexis 18355 (9th Cir. 2013 Sept. 4, 2013) ……………………………………………………………………………….13

Engquist v. Oregan Dep’t of Agr., 553 U.S. 591 (2008) ......................................... 12,13

Ezekwo v. New York City Health & Hosp. Corp., 940 F.2d 775 (2d Cir. 1991) ........ 18

Foley v. Town of Randolph, 598 F.3d 1 (1st Cir. 2010) ......................................... 12,13

Gabaldoni v. Wash. Cnty. Hosp. Ass'n., 250 F.3d 255 (4th Cir. 2001) ...................... 43

Garcetti v. Ceballos, 547 U.S. 410 (2006) ......................................................... 11,13,14

Harris v. Bellin Memorial Hosp., 13 F.3d 1082 (7th Cir. 1994) ....................... 32,33,38

Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026 (4th Cir. 1994) ................. 30,36

Kelly v. United States, 924 F.2d 355 (1st Cir. 1991) ............................................. 26,27

Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179 (1989), ............................ 27

Mathews v. Lancaster General Hosp., 87 F.3d 624 (3rd Cir. 1996) .......................... 50

Meyer v. Sunrise Hospital, 22 P.3d 1142 (Nev. 2001) ........................................... 36,49

Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461(6th Cir. 2003)................29

Mihos v. Swift, 358 F.3d 91 (1st Cir. 2004) ................................................................ 21

viii

Cases - Cnt'd.

Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1997) ....................... 11

Pickering v. Bd. of Ed., 391 U.S. 563 (1968) .......................................................... 11,20

Poliner v. Texas Health Systems, 537 F.3d 368 (5th Cir. 2008) ................. 43,45,47,49

Rankin v. McPherson, 483 U.S. 378 (1987) ................................................................ 11

Rivera-Corraliza v. Puig-Morales, No. 11-1219(JAF), 2013 U.S. Dist. LEXIS 99939

(D.P.R. July 16, 2013)……………………………………………………………………...24

Rogers v. Columbia/HCA of Cent. Louisiana, Inc., 971 F.Supp. 229 (W.D. La. 1997) .................................................................................................................... 32,38,45,47

Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995). ................. 12

Ruotolo v. City of New York, 514 F.3d 148 (2d Cir. 2008) ............................... 12,13,17

Singh v. Blue Cross Blue Shield, 308 F.3d 32 (1st Cir. 2002).................................... 33

Sokol v. Akron General Medical Center, 173 F.3d 1026 (6th Cir. 1999) ................... 39

Sugarbaker v. SSM Health Care, 190 F.3d 905 (8th Cir. 1999) ................................ 33

Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) ........................................... 19

Van v. Anderson 199 F.Supp. 2d 550 (N.D. Tex. 2002) .............................................. 34

Wahi v. Charleston Area Med. Center, Inc., 562 F.3d 599 (4th Cir. 2009) .......... 47,48

Waters v. Churchill, 511 U.S. 611 (1994) .................................................... 19,20,21,24

Wayne v. Genesis Med. Ctr., 140 F.3d 1145 (8th Cir. 1998) ...................................... 41

Wieters v. Roper Hospital Inc., 58 F.App’x 40 (4th Cir. 2003)................................... 40

Constitutions

United States Constitution, Amendment § I……………………………………….Passim

Statutes

42 U.S.C. § 11111-11112 ....................... xi,6,10,29,33,35,36,41,42,46,48,50,51,55,56,57

42 U.S.C. § 1983 ............................................................................................ ii,xi,5,11,55

Rules

Fed. R. Civ. P. 56(b)-(c), (e)-(g) .................................................................................... 27

ix

Other Authorities

The American Heritage Dictionary (Houghton Mifflin Harcourt, 4th ed. 1974) ....... 15

Angela Haupt, How Doctors Are Using Social Media to Connect with Patients, U.S. News and World Report (Nov. 22, 2011)…………………………………………….15,16

Baddour et. al, Nonvalvular Cardiovascular Device Related Infections, 108 Circulation 2015 (2003), available at http://circ.ahajournals.org/content/108/16/

2015.full.pdf+html. ................................................................................................... 39

Charity Scott, Medical Peer Review, Antitrust, and the Effect of Statutory Reform, 50 Md. L. Rev. 316, 348-49 (1991) ............................................................................ 30

Comprehensive Accreditation Manual for Hospitals 2013, (Joint Commission on

Accreditation of Healthcare Organization, 2013) ............................................... 31,33

Craig W. Dallon, Understanding Judicial Review of Hospitals’ Physician Credentialing and Peer Review Decisions, 73 Temp. L. Rev. 597 (2000) ............... 52

Eleanor D. Kinney, Hospital Peer Review of Physicians: Does Statutory Immunity Increase Risk of Unwarranted Professional Injury? 13 MSU J. Med. & Law 57, 65-67 (2009) .................................................................................................................... 30

Elizabeth Layne, The Damages of Gossip in the Workplace, Small Business: Houston Chronicle (Last Accessed Sept. 22, 2013) ................................................. 22

H.R. Rep. No. 903, 99th Cong., 2d Sess. 10, reprinted in 1986 Code Cong. & Admin. News 6287, 6392-93..................................................................................29,30,33,36,47

Institute for Health Metrics, "Bringing the New Joint Commission Standards for

Credentialing and Privileging Within Reach of the Community Hospital," April

30, 2007, available at: http://www.lifesciencewriter.com/Data_Driven_Physician_

Credentialing.pdf. ..................................................................................................... 31

J.D. Blum, Internet Medicine and the Evolving Legal Status of the Physician-Patient Relationship, 24 J. Leg. Med. 413 (2003). .................................................. 15

Jennifer Steinhauer, Public Health Risk Seen as Parents Reject Vaccines, New York Times, Mar. 21, 2008, http://www.nytimes.com/2008/03/21/us/21vaccine.html?_r=0

................................................................................................................................... 23

Kaufman et al., Coronary Stent Infection: A Rare But Severe Complication of Percutaneous Coronary Intervention, 135 Swiss Med Weekly 483 (2005), available at http://www.smw.ch/docs/pdf200x/2005/33/smw-11142.pdf ................................. 39

x

Other Authorities - Cnt'd.

Medical Peer Review, American Medical Association, http://www.ama-assn.org//ama/pub/physician-resources/legal-topics/medical-peer-review.page (last

visited Sept. 9, 2013) ................................................................................................ 32

Moore et al., Rethinking Peer Review: Detecting and Addressing Medical Malpractice Claims Risk, 59 Van. L. Rev. 1175 (May 2006) ................................... 31

New York State Department of Health, Vaccine Safety and the Importance of Vaccines, http://www.health.ny.gov/prevention/immunization/vaccine_safety/ (last visited Sept. 22, 2013)............................................................................................... 23

Ron Ashkenas, Seven Mistakes Leaders Make in Setting Goals, Forbes, July 9, 2012 http://www.forbes.com/sites/ronashkenas/2012/07/09/ seven-mistakes-leaders-

make-in-setting-goals/#. ........................................................................................... 25

S. Allan Adelman, & Ann O'Connell, Peer Review Hearing Guidebook, (S. Allan Adelman, & Ann O'Connell Eds., American Health Lawyers Association, 2nd Ed.

2013)…………………………………………………………………………………………47

Twitter Doctors, http://www.twitterdoctors.net (last visited Sep. 1, 2013) ............... 16

UCSF Medical Center, Evaluating Health Information, Patient Education, http://www.ucsfhealth.org/education/evaluating_health_information/ (last visited

Sept. 22, 2013). .......................................................................................................... 25

xi

OPINIONS BELOW

The opinion of the District Court for the District of Hanover is unreported

and may be found at Hanover University General Hospital, Anthony B. Glower,

Mary Elizabeth Kreutzer, Seamus O. Milk, and Alicia Polishov, No. Civ-12-523

(December 19, 2012) as provided in the Record. (Transcript of Record referred to as

“R.” at 1-14). The opinion of the Court of Appeals for the Twelfth Circuit is also

unreported and may be found at Hanover University General Hospital, Anthony B.

Glower, Mary Elizabeth Kreutzer, Seamus O. Milk, and Alicia Polishov, No. 13-275

(June 3, 2013) and is also provided in the Record. (R. at 15-24).

STATEMENT OF JURISDICTION

This action is brought under 42 U.S.C. § 1983 and raises a substantial federal

question of Constitutional interpretation. Jurisdiction is therefore proper under 42

U.S.C. § 1983 and also under 28 U.S.C. § 1331. Appellate jurisdiction is conferred

on this Court under Article III § 2 cl. 2 of the United States Constitution. This

Court granted the Petition for Certiorari on July 16, 2013.

STATUTORY AUTHORITY

This following Constitutional provision and federal statutes are relevant and

are set forth in the Appendix:

U.S. Const. Amend. I; and

42 U.S.C. § 1983

42 U.S.C. § § 11111-11112.

1

STATEMENT OF THE CASE

I. STATEMENT OF FACTS

Hanover University General Hospital (“HUGH”) is a public teaching hospital

that is considered a premier source of health care in the Clarahara County

community. (R. at 2). It is one of just three hospitals awarded a highly esteemed

and competitive grant funded by the Hanover Disease Research Institute (“HDRI”),

called the 99 Percent Grant (“99% Grant”), which aims at increasing the proportion

of children who are vaccinated. (R. at 9-10). The renewal of this grant depends on

how well the vaccine rates increase and whether investigators and providers can

maintain their commitment to the ambitious goals of the initiative. (R. at 9).

Serving as chief investigator for HUGH’s 99% Grant is Anthony Glower, M.D., who

is Chief of Pediatrics and a Medical Executive Committee (“MEC”) member. (R. at

2).

On Monday, June 11, 2012, Dr. Glower received a ConnectSpace post titled

“First, Do No Harm” from three different people within hours of its publication. (R.

at 2). The online post, a passionate criticism of the lack of attention given to the

autism-vaccines link, directly attacked the HDRI 99% Grant. (R. at 1-2). The post’s

author was none other than Respondent, co-inventor of the Doda Stent and an

esteemed cardiac surgeon who has held privileges at HUGH for twenty six years.

(Id.). Respondent had 1,011 ConnectSpace “friends” who could access his personal

page at the time of the post. (R. at 2). The post read, in pertinent part:

Confirmed. On Thursday, Declan [Respondent’s grandson]

was diagnosed: autism. Funny how the news feels shocking

2

even though we pretty much knew. Kudos to his speech

pathologist Lisa, a hero. A year ago Declan was vaccinated –

the full battery so to speak. I approved. We all did. And then….

We docs like to scoff at the autism-vaccines link. I personally

won’t do so anymore. Vaccination the great American

uncontrolled experiment on little kids. Whatever happened to

informed consent? The HDRI pays for vaccination in my county.

We have a grant: the more we jab, the more cash HUGH gets.

And photos with the governor. And trinkets. Susan

[Respondent’s wife] remembers Declan liked the balloon his

pediatrician gave him that day. Tax dollars at work.

ConnectSpace needs a sarcasm emoticon ;-( …

Concerned that the post would go viral and threaten the operations of the

hospital, which depend on the 99% Grant’s funding, Dr. Glower forwarded the link

to the post to Alicia Polishov M.D., HUGH’s Chief of Medicine and chair of the

MEC. (R. at 2-3). The following day, Dr. Glower voiced his concerns to Dr. Polishov

through text messages and e-mails about the potential disruptive effects the post

would have on the initiative, because people were already distributing it,

associating it with HUGH, and employees were discussing it at the water coolers.

(R. at 2-3).

Like many hospitals, HUGH has bylaws that provide parameters for peer

review investigations and disciplinary actions. (R. at 4). Specifically Article XIX,

Section 19.01(a) states that ad hoc peer review committee (“ad hoc committee”)

investigations are appropriate when:

[I]nformation 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, disruptive to Hospital operations, contrary to the

bylaws or Hospital staff rules, or below applicable professional standards...

(R. at 25).

3

Stemming from a commitment to follow this article, Dr. Polishov, under her

authority as Chief of Medicine, decided an ad hoc investigation of Respondent was

appropriate. (R. at 3-4). In a letter dated July 1, 2012, per Article XIX, Section

19.01(f), Dr. Polishov notified Respondent of the ad hoc committee’s intent to

investigate Respondent’s performance at HUGH, including his clinical history,

patient and medical staff reports, post-operative infection rates, complication rates,

autopsy findings, sentinel events, and malpractice claims. (R. at 4). The ad hoc

committee would make a recommendation to the Board of Trustees regarding his

surgical privileges at HUGH. (Id.). This letter also informed Respondent of his

numerous rights under HUGH’s Medical Staff Bylaws, including his right to

request a fair hearing after the investigation. (Id.).

The ad hoc committee had four qualified members: (1) Dr. Glower; (2)

Seamus O. Milk, M.D., a retired cardiac surgeon holding courtesy privileges at

HUGH; (3) Roland Ling, M.D., a general surgeon, Chair of the Surgery Department,

and Director of Quality Enhancement Initiatives; and (4) Mary Elizabeth Kreutzer,

R.N., D.N.P., HUGH’s Director of Nursing, who served as ex officio to provide

information from the nursing staff. (R. at 4). Although somewhat informal, the ad

hoc committee fully examined Respondent’s records from the six year period of June

2006 through July 2012. (R. at 4-5). Through this investigation, which commenced

on July 8, 2012, the ad hoc committee discovered that seven of Respondent’s

patients had died on the operating table. (R. at 11). With this high mortality rate,

Respondent ranked 12th out of HUGH’s fifteen cardiac surgeons, as only four other

4

HUGH cardiac surgeons lost more than seven patients during the same period.

(Id.). Additionally, Respondent’s post-operative infection rate was 22%, seven

points higher than HUGH’s average of 15%. (Id.).

Dr. Milk and Director Kreutzer conducted interviews with members of the

hospital staff regarding Respondent’s conduct, finding Respondent had a history of

aggressive rudeness towards surgical nurses and patients. (R. at 5, 11).

Specifically, in 2006, Dr. Rutherford publically shouted at the wife of a patient for

longer than five minutes after she complained about her husband’s complications

from a Doda Stent surgery. (R. at 11). The investigation revealed two other

complaint letters, from 2007 and 2009, that had been filed objecting to abusive

behavior by Respondent towards his patients. (Id.).

On July 31, 2012, HUGH’s Chief Executive Officer Norbert Flax, M.D.,

informed Respondent that the MEC had voted to revoke Respondent’s surgical

privileges in response to the ad hoc committee’s investigation. (R. at 5). The letter

explained that the MEC believed Respondent had failed to meet HUGH’s standard

of care based on his unacceptably high mortality and post-operative infection rates,

as well as negative interactions with medical staff and patients. (Id.). This letter

informed Respondent of his right to request a fair hearing regarding the decision for

the second time. (Id.).

Following receipt of Dr. Flax’s letter, Respondent declined in writing to

attend a hearing, asserting he perceived it as “a waste of time” and alleging the

MEC’s bias and “hidden agenda” in response to his ConnectSpace post. (R. at 5).

5

Respondent claimed his post-operative infection rate was related to a four-month

period when HUGH’s HVAC system malfunctioned by exhausting pipe sewage into

recovery rooms. (Id.). Although Respondent was the one to discover this

malfunction, he continued to operate under these circumstances. (R. at 5, 21).

Respondent also claimed that his Doda Stent patients tend to be critically ill

patients pre-surgery, and therefore his mortality rate relative to these patients was

“extraordinarily good.” (R. at 5). Respondent did not provide any evidence to support

this assertion.

On August 7, 2012, Respondent retained counsel to file a civil action and

appealed to HUGH’s Board of Trustees for a reversal of the revocation decision. (R.

at 6). On August 24, 2012, Hugo Borelli, the Chair of Board of Trustees, informed

Respondent via letter that his HUGH privileges had been reinstated. (Id.). On

August 28, 2012, Respondent returned to his full duties at HUGH (Id.). Despite

this final outcome, the Board of Trustees did not provide any explanation for this

decision and did not submit any additional evidence to contradict the findings of the

ad hoc committee. (Id.).

II. PROCEDURAL HISTORY

Respondent filed a complaint action against Petitioners in the United States

District Court for the District of Hanover under 42 U.S.C. § 1983. The complaint

alleged that HUGH and its ad hoc committee violated Respondent’s constitutional

right to free speech by revoking his clinical privileges based on a post on his

6

personal ConnectSpace profile page. (R. at 1). Respondent alleged several common

law claims, including breach of contract for failure to follow HUGH’s Bylaws,

intentional infliction of emotional distress, and defamation. (R. at 11). He seeks

damages for the economic value of his lost income while his hospital privileges were

revoked. (Id.).

Petitioners filed a Motion for Summary Judgment, successfully asserting that

42 U.S.C. § 11111(a)(1) of the Health Care Quality Improvement Act of 1986

(“HCQIA”) provides immunity from all claims. (R. at 11, 13). The United States

District Court for the District of Hanover granted Petitioners’ Motion. (R. at 11).

The court determined that HCQIA granted Petitioners full immunity from all

common law claims because HUGH met all four thresholds for immunity under 42

U.S.C. § 11112(a). (R. at 11, 13). Respondent failed to demonstrate evidence to

rebut this statutory protection. (R. at 13-14).

Respondent appealed to the United States Court of Appeals for the Twelfth

Circuit. (R. at 10). The Twelfth Circuit reversed the District Court’s decision,

holding that Respondent had demonstrated enough evidence of the material facts to

warrant a decision by a jury. (R. at 20-21). The court also found that Respondent

had presented enough evidence for a reasonable jury to find that he had rebutted

HUGH’s presumption of immunity under HCQIA. (R. at 24-25). On July 16, 2013,

this Court granted Petitioners’ Petition for Certiorari. (R. at 28).

7

SUMMARY OF THE ARGUMENT

This Court should reverse the Twelfth Circuit’s decision that Respondent’s

speech was protected under the First Amendment and that Respondent rebutted

HUGH’s presumption of immunity under HCQIA, by a preponderance of the

evidence.

Respondent’s ConnectSpace post is not protected speech under the Pickering-

Connick Balancing Test. In order to qualify as protected speech under this test,

Respondent first must show that he was a private citizen speaking on a matter of

public concern. However, because Respondent directly named HUGH and used the

word “we” to reference the hospital, this Court should find that Respondent was

speaking pursuant to his official duties, as a spokesperson for HUGH; therefore, it

should not extend First Amendment protection to Respondent.

If, and only if, this Court does find Respondent was speaking as a private

citizen on a matter of public concern, then the second prong of the Pickering-

Connick test requires this Court to assess whether Respondent was acting as a

reasonable manager when it revoked Respondent’s privileges. This Court should

find that HUGH’s interest in preventing workplace disruptions and preserving its

core mission to vaccinate Hanover’s children outweighed Respondent’s speech

interest, and that HUGH’s actions were reasonably designed to prevent these

disruptions.

Finally, only if this Court does not find that HUGH acted like a reasonable

manager, then the final part of the Pickering-Connick test requires the Respondent

8

to prove that his speech substantially motivated HUGH’s adverse action. This Court

should find that summary judgment on this issue was proper because Respondent

has not presented any evidence, beyond mere speculation, that HUGH revoked his

privileges because of the post. Alternatively, if this Court somehow finds that

Respondent’s speech motivated HUGH’s action, then it should also find that

HUGH’s actions still were proper under the Pickering-Connick test because it would

have taken the same action even in the absence of the post due to Respondent’s

clinical deficiencies.

HUGH’s ad hoc peer review investigation of Respondent’s professional

medical practice appropriately and objectively evaluated patient outcome data, by

means of document and chart review as well as medical staff interviews, and also

ignored any evidence of decision maker bias. HUGH did not apply a subjective lens,

nor consider evidence of bias, as is required under the statute and case law.

HUGH is immune under the HCQIA because the ad hoc committee’s

investigation satisfied all four statutory prongs: (1) HUGH revoked Respondent’s

active staff privileges for the purpose of furthering the quality of health care, only

after discovering his poor surgical outcome and unprofessional behavior; (2) HUGH

made a reasonable effort to obtain the facts of the matter through investigation of

patient outcome data, staff interviews and patient complaints; (3) Although

Respondent declined a hearing, HUGH provided fair notice to Respondent; and (4)

HUGH’s finding of Respondent’s failure to meet the necessary standard of care

warranted the revocation of his active staff privileges. Therefore, because

9

Respondent has offered no evidence to rebut the presumption of immunity, this

Court should dismiss all claims against Petitioners.

10

ARGUMENT

This Court should reverse the Twelfth Circuit’s decision because Respondent

has not met any of the evidentiary burdens required to prove that he suffered any

injustice. While the First Amendment protects private citizens from government’s

“abridging of free speech,” Respondent’s ConnectSpace post does not deserve this

protection based on its content, forum, and context. HUGH revoked Respondent’s

privileges based on significant, objective evidence of his substandard care, in

furtherance of its mission to provide safe, quality health care to the Hanover

community. The revocation was the result of a thorough peer review investigation,

separate and distinct from the ConnectSpace post. Under the HCQIA, Petitioners

can “not be liable in damages under any law of the United States or of any State

with respect to the [professional review] action,” as long as the due process and

fairness requirements are met. See 42 U.S.C. § § 11111-12; see also Austin v.

McNamara, 979 F.2d 728, 734 (9th Cir. 1992). Because of this immunity,

Respondent’s claims must be dismissed and this Court should grant Petitioners’

Motion for Summary Judgment.

I. THIS COURT SHOULD REVERSE THE TWELFTH CIRCUIT’S DECISION

BECAUSE RESPONDENT’S UNPROFESSIONAL AND POTENTIALLY

DANGEROUS CONNECTSPACE POST IS NOT PROTECTED SPEECH

UNDER THE PICKERING-CONNICK FIRST AMENDMENT BALANCING TEST.

Employee speech, unlike that of ordinary citizens, requires unique analysis

because “government employers, like private employers, need a significant degree of

control over their employees’ words and actions; without it, there would be little

11

chance for the efficient provision of public services.” Garcetti v. Ceballos, 547 U.S.

410, 415 (2006). As such, to find that a public employee’s speech is afforded First

Amendment protection, courts apply the deferential Pickering-Connick balancing

test, which requires the public employee to prove that he was speaking as a private

citizen on a matter of public concern. Pickering v. Bd. of Ed., 391 U.S. 563, 568-73

(1968). If, and only if, the public employee makes this showing, then the employer

must show that it acted as a reasonable manager, and that its interest in

preventing workplace disruptions outweighed the public employee’s speech interest.

Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1997). Finally, if,

and only if, the employer fails to make this showing, the public employee must

prove a causal connection between his speech and the adverse action taken by the

employer.1 Connick v. Myers, 461 U.S. 138, 147 (1983); Rankin v. McPherson, 483

U.S. 378, 388 (1987).

Respondent’s ConnectSpace post is not protected speech under the Pickering-

Connick balancing test because Respondent was speaking as public employee on

behalf of HUGH, within the scope of his official duties as a physician.2 However, if

this Court finds Respondent was speaking in a private capacity, then it should also

find that under the second prong, HUGH acted like a reasonable manager in

proactively revoking Respondent’s privileges. The post significantly disrupted

HUGH’s work environment and threatened its ability to comply with the 99%

Grant’s vaccination goals. Finally, even if, and only if, this Court somehow finds 1 Parties have stipulated that the revocation of privileges was an adverse action. (R.

at 8, n 6). 2 HUGH has stipulated that it is a state actor under 42 U.S.C. § 1983. (R. at 6, n. 4).

12

that Respondent’s post should be afforded First Amendment protection, then under

the third prong, it must weigh both parties’ evidence. This Court should find

Respondent has not offered any evidence that the ConnectSpace post was a

motivating factor in revoking his privileges, and that HUGH would have taken the

same adverse action regardless of the post; therefore, his claims cannot survive

HUGH’s Motion for Summary Judgment. As such, the Court should reverse the

Twelfth Circuit’s decision and dismiss Respondent’s claim with prejudice.

A. Under The First Prong Of The Pickering-Connick Test, Respondent’s Speech

Is Not Protected Because When He Published The ConnectSpace Post, He

Spoke As A Public Employee On Behalf Of The Hospital, As Evidenced By

Inclusion of HUGH’s Name And The Use Of The Word “We” To Reference

HUGH.

“When the government appropriates public funds to promote a particular policy

of its own, it is entitled to say what it wishes.” Rosenberger v. Rector and Visitors

of Univ. of Va., 515 U.S. 819, 833 (1995). In determining whether Respondent’s

speech opposing vaccinations passes the first threshold for First Amendment

protection under the Pickering-Connick test, Respondent must prove that (1) he was

speaking as a private citizen, not as public official, and (2) the speech addressed a

matter of public concern, as opposed to merely expressing a private grievance.

Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 600 (2008); Ruotolo v. City of New

York, 514 F.3d 148 (2d Cir. 2008). If the general public could perceive Respondent’s

speech as being made pursuant to his official HUGH duties, or in any other official

capacity, the Court should hold that Respondent was speaking as public official and

preclude First Amendment protection. See Foley v. Town of Randolph, 598 F.3d 1

13

(1st Cir. 2010); see also Garcetti, 547 U.S. at 421-22 (noting that job requirement to

speak or advise does not preclude employers from limiting employee speech); but

see Demers v. City of Austin, No. 11-35558 2013 U.S. App. Lexis 18355, at *3-4 (9th

Cir. Sept. 4, 2013) (adopting minority view that an employee’s speech pursuant to

duties may be protected if addressing a matter of public concern). While Petitioners

believe that Respondent was speaking as a public employee, even if the Court finds

that Respondent was speaking as a private citizen, the speech is still not protected.

Applying the Pickering-Connick test, the content, form, and context of the speech

constituted a personal grievance, rather than a matter of public concern. See

Engquist, 553 U.S. at 600; Ruotolo, 514 F.3d at 184.

1. Respondent spoke as a public employee on behalf of HUGH, pursuant to

his official duties as a physician.

When the public could reasonably perceive the public employee’s speech as

being made pursuant to his official duties, or within his official capacity, First

Amendment protection should be denied. In Foley v. Town of Randolph, a

municipal fire chief was suspended for fifteen days after he discussed the cause of a

fatal housing fire, as well as staffing and funding issues plaguing his department,

at a press conference. 598 F.3d at 5-6. The court held that the fire chief’s speech was

not protected under the First Amendment because the context of the fire chief’s

speech reasonably fell within the scope of his official duties, even if it was not listed

in his formal job description. Id. at 7-8. Because the public could have reasonably

perceived the fire chief as a spokesman of the department and he was speaking on

14

matter that concerned the department, the court reasoned that the fire chief was

speaking in his role as a public employee, rather than a private citizen. Id. 7-8.

Similarly, in Garcetti v. Ceballos, a deputy state district attorney was terminated

after he wrote a memorandum explaining his concerns regarding alleged

inaccuracies in the department’s handling of a criminal case. 547 U.S. at 413-15.

The court held that the government was able to restrict the speech however it saw

fit, reasoning that plaintiff had prepared the memorandum pursuant to his public

duties and therefore, any coinciding personal motives behind the memorandum

were immaterial. Id. at 421-22.

This Court should recognize that the public—including Respondent’s current

and future patients—likely perceived the ConnectSpace post as that of a physician

spokesman acting on behalf of HUGH. Similar to Foley, where the fire chief’s speech

technically was not part of his formal job description, Respondent’s speech likely

took place on the fringe of his formal job description. Respondent relied on his

authority as a long-standing physician at HUGH to bolster the credibility of his

message that reached over 1,000 people. Following Foley, Respondent’s formal job

description is moot because the public likely perceived a physician speaking about

medical concern, which is well within his official duties at HUGH.

Moreover, the content of Respondent’s post, coupled with traditional rules of

grammar, likely allowed the public to conclude that Respondent was speaking as a

HUGH spokesman. Respondent’s post specifically mentions the hospital and grant,

stating: “The HDRI pays for vaccinations in my county. We have a grant: the more

15

we jab, the more cash HUGH gets. And photos with the governor. And trinkets.” (R.

at 2). With the use of the pronoun “we”, Respondent identified himself as a part of a

group or a “set of others,” and that he was speaking on their behalf. See “We,” The

American Heritage Dictionary (Houghton Mifflin Harcourt, 4th ed. 1974). It is

paramount to the outcome of this case that this Court evaluates the sentence in its

entirety and infers the meaning like any ordinary citizen. Applying the traditional

rules of grammar, this Court will likely conclude that the group that Respondent

was representing, when he used the pronoun “we”, was HUGH. HUGH was the one

awarded the HDRI grant referenced by Respondent, as opposed to the county, a

group of doctors, or set of others. Respondent clearly identified himself as a part of

HUGH and spoke in a manner that the public could conclude he was speaking on

behalf of HUGH.

Furthermore, Respondent’s choice of forum likely led the public to conclude

that the post was written pursuant to his official duties as a physician committed to

advising patients. Social media platforms such as ConnectSpace are increasingly

being utilized as a means of virtual doctor-patient interactions, including

consultations, follow up care, and general health advising. See J.D. Blum, Internet

Medicine and the Evolving Legal Status of the Physician-Patient Relationship, 24 J.

Leg. Med., 413, 415-17 (2003). According to a National Research Corporation

survey, about twenty percent of patients are using social media to glean healthcare

information, and that number is expected to grow exponentially over the next few

years. See Angela Haupt, How Doctors Are Using Social Media to Connect with

16

Patients, U.S. News and World Report (Nov. 22, 2011). Many of these patients are

using social media to connect with their primary care physicians, who are

increasingly open to social media connections. Id. The industry suggests that social

media soon will become many patients’ main tool for soliciting credible medical

advice from physicians. Id. As of September 15, 2013, Twitterdoctors.net, an online

physician database that posts primary care and specialty medical advice through

Twitter, had 1,043 members. Twitter Doctors, http://www.twitterdoctors.net (last

visited Sep. 1, 2013). The scope of medical patients seeking medical advice through

social media is massive. For example, a California physician using the handle

@DrJeffersnBoggs has 508,803 followers of his official medical Twitter account and

has issued more than 15,500 medical posts. Id. This usage pales in comparison to

Dr. P. Mimi Poinsett’s 264,589 tweets. Id.

Respondent has 1,011 “friends” on his ConnectSpace account who could

access, copy, or forward Respondent’s post in its entirety to anyone with internet

access. This phenomenon is evidenced by the fact that Dr. Glower quickly received

the post within mere hours of it going viral. If Respondent had belonged to

Twitterdoctors.net, his number of “friends” alone would place him well above the

median doctor’s number of friends. Of Respondent’s 1,011 friends, it is very likely

that at least one was a current or future patient of Respondent or HUGH. Based on

the forum and the medical content of Respondent’s ConnectSpace post, any number

of current or future patients could have perceived the post as medical advice

pursuant to Respondent’s official duties as a physician.

17

Finally, the Court should note that Respondent also took the opportunity to

discuss his personal beliefs and issues within the post. However, despite the nature

or degree of personal issues and opinions raised in the post, Foley clearly

established that personal discussions or an employee’s satisfaction gained from his

speech is irrelevant and does not affect the First Amendment protection analysis.

In Foley, even though the fire chief shared personal anecdotes and opinions during

his firehouse speech, the court held that the speech was not protected because the

public likely still perceived him as spokesman for the fire department. Similarly, in

this case, just because Respondent referenced ongoing family issues and included

his personal opinion, the public still likely perceived him as speaking on behalf of

HUGH, and may very well have attributed his personal anecdotes as providing

support for the claims he made as a public employee on behalf of HUGH.

2. Alternatively, if this Court concludes that Respondent did not speak

pursuant to his official duties, then his speech is still not protected

because it was published to redress a personal grievance.

If the Court disagrees with Petitioners, and believes Respondent was

speaking as a private citizen, then this Court should consider the post a private

grievance rather than a matter of public concern. In Ruotolo v. City of New York, a

police officer was terminated after filing a lawsuit in which he sought damages for

exposure to toxic substances. 566 U.S. 148 at 151. The court held that the

grievances in the lawsuit were not protected speech because they focused on officer’s

personal injury, despite the fact that some of the employee’s comments also could be

broadly construed as matters of public concern. Id. The court reasoned that

18

alluding to or generally referencing a broad matter of public concern, while airing

personal grievances, does not shift the main focus of the speech because plaintiff

was not on a mission to protect the public welfare. See also Ezekwo v. New York

City Health & Hosp. Corp., 940 F.2d 775, 781 (2d Cir. 1991) (holding a public

employee’s communications regarding her personal life and reputation were not

matters of public concern).

Respondent’s ConnectSpace post was merely a venue for airing his personal

frustration over his grandson’s diagnosis, rather than an attempt to inform or

protect the public from the largely imagined negative effects of vaccines. Similar to

Ruotolo, where the plaintiff expressed his frustration over his exposure to toxins,

Respondent’s ConnectSpace post is almost entirely focused on his frustration with

his grandson’s diagnosis. The post begins with “…On Thursday, Declan was

diagnosed “autism” and ends with a picture of Respondent’s grandson. Also similar

to Ruotolo, where the plaintiff provided only a tenuous link between his personal

grievance and the matter of public interest, Respondent only briefly and generally

referenced a topic that could be construed as going beyond a personal grievance.

Respondent’s post, when read as a whole, appears to be an angry rant designed to

vent resentment and frustration over the diagnosis, rather than providing an

informative and reasoned discussion that one would expect from a doctor seeking to

protect the public from vaccines.

Respondent not only fails to provide any medical data or evidence in his post,

but he also fails to explain the “autism-vaccines link,” beyond mere identification,

19

which would be necessary if his motivation was to inform and protect the public.

Unlike Ruotolo, when the plaintiff filed a lawsuit that is a matter of public record,

Respondent posted on a private social media platform that was only visible to

friends of the Respondent’s friends, who would likely have had a personal interest

instead of a broader public concern. While this private forum does not necessarily

remove Respondent’s posting from the realm of public concern, courts have noted

that the medium is similar to a personal journal which is indicative of a personal

grievance as opposed to a matter of public concern. See Tienda v. State, 358 S.W.3d

633, 634 (Tex. Crim. App. 2012)(likening blog to a personal journal).

Because Respondent was not speaking as a private citizen on matters of

public concern, thereby failing to establish the first threshold the Pickering-Connick

balancing test, the Court should reverse Twelfth Circuit decision on this basis.

B. Under The Second Prong of The Pickering-Connick Test, HUGH Acted Like A Reasonable Manager When It Revoked Respondent’s Privileges Because His

ConnectSpace Post Posed A Future Threat of Tangible Interference With

HUGH’s Operations, Employee Morale, And Renewal of the 99% Grant.

If this Court finds that Respondent has passed the first threshold of the

Pickering-Connick balancing test, then Petitioner must show that its interest in

avoiding workplace disruptions outweighed Respondent’s speech interest. The Court

should keep in mind that “where the government is employing someone for the very

purpose of effectively achieving its goals, such restrictions may well be appropriate.”

Waters v. Churchill, 511 U.S. 611, 668, 673 (1994). In weighing these interests,

Petitioner must show that (1) HUGH acted like a reasonable manager in good-faith

20

based on evidence of present and future harm, and (2) HUGH’s actions alleviated

the present or future harm. Connick, 461 U.S. at 142; Pickering, 391 U.S. at 568.

For HUGH’s managerial decision to be deemed “reasonable,” it must have a

reasonable belief that harm has or will occur, even where the harm appears to be

mostly speculative. Connick, 461 U.S. at 146-49. This Court should find that

HUGH revoked Respondent’s privileges because of the predicted plausible

consequence that the post could cause HUGH to lose HDRI funding, which would in

turn threaten HUGH’s entire mission of advancing health.

1. HUGH revoked Respondent’s privileges because it reasonably

believed that the post would be disruptive, harmful, and

threatening to HUGH’s operations.

A public employee’s speech is not afforded First Amendment protection under

the Pickering-Connick balancing test when the employer has a reasonable good-

faith belief that the employee’s speech will cause unnecessary disruptions and

inefficiencies in carrying out its public service mission. Waters, 511 U.S. at 678.

Particularly in the public sector:

Agencies hire employees to help do those tasks as effectively and

efficiently as possible. When someone who is paid a salary so that

she will contribute to an agency's effective operation begins to do

or say things that detract from the agency's effective operation,

the government employer must have some power to restrain her.

Id. at 673.

In Waters, a nurse at a public hospital was terminated after criticizing work

conditions and available training programs. Id. at 670, 680-81. The court held that

as long as the employer reasonably believed the speech would cause a disruption to

21

the staff or the hospital’s mission, the hospital was under no duty to further

investigate the claims or potential disruption. Id. at 679-81. The court further held

that statements of other employees as to the disruptive nature of the comment were

sufficient to outweigh the plaintiff’s speech interest, even in situations where

reasonable managers could disagree on levels of disruption. Id. Because the

government facilitates the delivery of important public services, government

employers have a special need to control their employees’ speech to prevent

undermining management’s authority. Id. at 680-81. Similarly, in Mihos v. Swift,

358 F.3d 91, 94 (1st Cir. 2004), the plaintiff was removed from his position with a

state’s turnpike authority after he voted against a toll increase, contrary to the

governor’s wishes. Holding that the government acted as a reasonable manager,

the court reasoned that while the plaintiff had a strong interest in voting his

conscience without fear of retaliation, this can be outweighed by critical operational

interests of the employer, including maintaining solvency and the efficient

functioning of government services. Id. at 103, 107-08.

First, Respondent’s post disrupted employee productivity and threatened

staff morale. Similar to Waters’ comments to other staff members, Respondent’s

criticism of HUGH’s compliance with the HDRI grant was made in a forum in which

other employees could have received the message. At least three separate employees

were made privy to the Respondent’s comments, and at least one employee – Dr.

Glower – identified Respondent’s post as disruptive to employee morale. HUGH

cites that the post became a topic of controversy among hospital staff, and was

22

being discussed at water coolers and in the break rooms. Experienced managers

know that gossip, such as the kind resulting from Respondent’s post, damages the

workplace by lessening employee productivity, lowering morale, diminishing trust

in other employees, and creating divisiveness. See Elizabeth Layne, The Damages

of Gossip in the Workplace, Small Business: Houston Chronicle (Sept. 22, 2013).

Because gossip can hurt workplace reputations and prompt good employees to

leave, managers have a heightened interest in preemptively stopping gossip. Id.

Thus, the Waters standard, the initial disruption among Dr. Glower and upper level

management, and management’s predictions based on their hospital administration

experience, all provide sufficient grounds for HUGH’s decision to revoke

Respondent’s privileges. Further, this Court should follow Mihos, in which the court

noted it would not protect employee speech that impeded the employer’s mission or

threatened solvency.

Second, Respondent’s post threatened HUGH’s future compliance with the

99% Grant, by proposing that the public be wary of vaccinating Hanover’s children.

Respondent calls vaccinations “the great American uncontrolled experiment on little

kids.” This Court must understand that the vaccination program is a key

component of the public hospital’s mission, and that the children of Hanover would

be placed at infinite risk by the discontinuance of such a successful program.

HUGH chose to advance its public health mission by complying with the universal

vaccination requirement of the HDRI grant, which was a well-informed decision.

Contrary to Respondent’s allegation that “the more we jab, the more cash HUGH

23

gets,” HUGH complies with this grant to further an internationally accepted public

health program. The majority of the medical community strongly endorses the value

of vaccinations in promoting public health. According to The New York State

Department of Health, along with the U.S. Department of Health and Human

Services, the American Academy of Pediatrics, the Centers for Disease Control and

Prevention, the American Medical Association, and UNICEF, vaccines are safe,

have no link to autism and, most importantly, save lives. See New York State Dept.

of Health, Vaccine Safety and the Importance of Vaccines, http://www.health.

ny.gov/prevention/immunization /vaccine_safety/ (last accessed on Sept. 22, 2013).

As an employee of HUGH, Respondent was required to refrain from acting or

speaking in manner that detracted from HUGH’s chosen science-based method of

operation, especially given the natural anxiety of new parents deciding whether or

not to vaccinate their infants. Recent media attention on the unfounded claims of

harm associated with vaccines has created unwarranted parental anxiety. Id. Not

only does anxiety create a potential for a major public health crisis due to parent’s

not choosing to vaccinate, but it also makes parents and would-be patients easily

susceptible to a doctor’s pseudo-scientific suggestion that vaccinations could be

dangerous. Jennifer Steinhauer, Public Health Risk Seen as Parents Reject

Vaccines, New York Times, March 21, 2008, available at http://www.nytimes.com

/2008/03/21/’us/21vaccine.html?_r=0. As such, when Respondent actively tried to

impede HUGH’s compliance with the 99% Grant, HUGH had a reasonable basis to

believe Respondent’s post would endanger compliance with the 99% Grant, as well

24

as endanger public safety, in violation of Respondent’s Hippocratic Oath to “do no

harm.” Thus, Petitioners’ interest to maintain its 99% Grant compliance and

promote public health certainly outweighed any free speech interest that

Respondent has claimed.

2. Revoking Respondent’s privileges lessened present and future

threats to employee morale and compliance with meeting the 99%

Grant’s required vaccination benchmarks.

In order to be deemed a reasonable manager, Petitioners must present

evidence that its action would have alleviated the threat posed by Respondent’s

speech, beyond merely correcting HUGH’s dissatisfaction with the message. In

Crawford-El v. Britton, 523 U.S. 574, 578 (1998), an inmate serving a life sentence

claimed that prison officials had moved him several times from prison to prison as a

deterrent to speaking out against prison staff members. The court held that the

prison staff had to present evidence that its adverse actions would have alleviated

the potential disruption caused by the prisoner’s speech and was not mere

retaliation. Id.; see also Rivera-Corraliza v. Puig-Morales, No. 11-1219(JAF) 2013

U.S. Dist. LEXIS 99939, at *12-13 (D.P.R. July 15, 2013); Waters, 511 U.S. 611

(holding reasonable managers can disagree as to the proper action needed in

response to employee speech).

Petitioners’ decision to revoke Respondent’s privileges immediately alleviated

the harm caused – it improved employee morale through reinforcement of HUGH’s

unified position, reduced gossip and discredited Respondent’s pseudo-scientific

claims. Similar to Crawford, the actual effectiveness of HUGH’s decision is largely

25

speculative because of the subsequent actions taken by HUGH’s Board of Trustees,

which is the equivalent of a disagreement among reasonable managers. However,

unlike Crawford, HUGH had a reasonable belief that its decision to revoke

Respondent’s privileges did not amount to retaliation and would correct the

disruption caused by the post. For example, HUGH’s decision to remove Respondent

from the workplace also removed the leading opponent of HUGH’s goals and thus,

began to reunify the staff and increasing productivity. Immediate action is a key

tactic of reasonable managers seeking to increase performance and achieve their

desired outcomes. See Ron Ashkenas, Seven Mistakes Leaders Make in Setting

Goals, Forbes, July 9, 2012 http://www.forbes.com/sites/ronashkenas/2012/07/09/

seven-mistakes-leaders-make-in-setting-goals/#. Based on these facts, HUGH’s

decision likely unified the staff and increased the delivery of quality healthcare.

Additionally, HUGH’s decision also minimized the number of current and

future patients who refuse to vaccinate, by discrediting Respondent’s post before

these patients followed his advice based solely on his perceived credibility. When

patients evaluate whether a source of health information is credible, most look to

the credentials of the source to determine whether the source has expertise,

training, and trust among his colleagues. See UCSF Medical Center, Evaluating

Health Information, Patient Education, http://www.ucsfhealth.org/education

/evaluating_health_information/ (last accessed Sept. 22, 2013). While HUGH could

not revoke Respondent’s medical training, it could call Respondent’s credibility into

question by revoking his privileges and signaling that Respondent no longer had the

26

trust of his colleagues at HUGH. Based on these facts, HUGH’s decision likely made

its compliance with the 99% Grant much more plausible and reassured patients and

would-be patients of the need and benefit of vaccines.

Therefore, HUGH provided a sufficient showing that it acted like a

reasonable manager when it revoked Respondent’s privileges, thereby satisfying its

burden of proof under the second prong of the Pickering-Connick test.

C. Under The Third Prong of The Pickering-Connick Test, Summary Judgment Is Appropriate Because Respondent Has Not Offered Any Evidence Beyond

Mere Speculation That His ConnectSpace Post Was A Substantial Or

Motivating Factor In HUGH’s Decision To Revoke His Privileges.

While HUGH is confident it acted like a reasonable manager, if this Court

somehow finds that Respondent’s speech interest outweighs Petitioners’ operational

interest and policy goals, then Respondent must prove a causal connection between

his speech and the adverse action. In order to prove that such a connection exists,

the Respondent must show that (1) a reasonable jury could find that his speech was

a substantial or motivating factor in adverse action, and (2) HUGH would not have

taken the adverse action but-for the Respondent’s speech. Kelly v. United States,

924 F.2d 355, 357 (1st Cir. 1991); Bradly v. Pittsburg Bd. of Ed., 913 F.2d 1064,

1075 (3rd Cir. 1990). While this issue is subject to summary judgment, in which

Respondent is entitled to have any ambiguities resolved in his favor, Respondent

may not rest upon mere allegations, void of evidentiary support, that his speech was

a substantial or motivating factor in revoking his privileges. Id. at 1075; Kelly, 924

F.2d at 357. Petitioners are entitled to summary judgment because Respondent has

failed to produce any evidence contesting material fact in order to support his claim

27

that his speech prompted HUGH to revoke his privileges. Furthermore, HUGH

likely would have revoked Respondent’s privileges, even absent his post on

ConnectSpace. See discussion infra, Part II.

1. Respondent has not produced any evidence to demonstrate that his speech

motivated HUGH to take adverse action against his employment.

As the summary judgment opponent, Respondent must establish at least one

issue of genuine and material fact, by producing evidence that would be admissible

at trial, beyond mere allegations in the complaint or lawyer’s brief. In Kelly v.

United States, a federal law enforcement agent was informally accused of leaking

information and aiding a suspected drug kingpin. 924 F.2d at 357. In response to

these career-ending claims, the agent filed suit claiming his supervisors did not

investigate these claims through appropriate channels. Id. In affirming summary

judgment in the government’s favor, the court held that the federal agent failed to

produce any conventional means of documenting issues of fact, including affidavits,

depositions, interrogatories, or admission. Id. at 358. The court explained that when

the non-moving party fails to produce evidence demonstrating or contesting

material fact, summary judgment is appropriate because the movant’s version of

the fact must be taken as true. Id. at 358; See also Fed. R. Civ. P. 56(b)-(c),(e)-(g);

Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181(1st Cir. 1989)

(holding that proof based on speculation, optimistic surmise or farfetched inference

will not withstand a motion for summary judgment).

Petitioners are entitled to summary judgment because Respondent has failed

to produce any evidence contesting material fact in order to support his claim that

28

his speech primarily motivated HUGH to revoke his privileges. Like the plaintiff in

Kelly, Respondent has not presented any documentation of affidavits, depositions,

interrogatories, or admissions to demonstrate that he was terminated because of his

social media post. The Twelfth Circuit was incorrect to interpret the lapse of time

between the Respondent’s post and his loss of privileges, as well Dr. Glower’s text

message to Dr. Polishov, as evidence supporting the Respondent’s claim. The

holding in Kelly is clear that “farfetched inference[s]” or suspicious activity is not

enough evidence to defeat a motion for summary judgment. Thus, this Court should

reverse the Twelfth Circuit’s ruling and Petitioners’ Motion for Summary Judgment

granted because no reasonable jury could find in favor of the Respondent

2. Absent Respondent’s speech, HUGH still would have taken adverse action

due to his poor performance as a surgeon.

Even if Respondent was able to show his ConnectSpace post was a

substantial or motivating factor in HUGH’s decision to revoke his privileges, HUGH

still would have suspended Respondent’s privileges due to his unacceptably high

mortality and infection rates that jeopardized public safety. In Bradly, a teacher

was terminated after he criticized the school district in which he worked. 913 F.2d

at 1066-69. While the court held that the school had not provided sufficient evidence

for the termination, it reasoned that the Pickering-Connick analysis requires more

than a showing that defendants could properly terminate an employee. Id. at 1075-

77. Instead, it requires a showing that the employer would have terminated the

employee in the absence of his protected activity. Id. HUGH would have revoked

Respondent’s privileges, absent the ConnectSpace post, because of Respondent’s

29

history of performing poorly as a physician. Respondent’s infection rate was 22%,

seven points higher than HUGH’s average, and seven patients died on his operating

table. He was ranked in the bottom quartile of HUGH’s surgeons based on patient

data. Unlike Bradly, where the school likely would not have terminated the plaintiff

but-for his speech, HUGH had a sufficient basis and a mandatory review process

that would have likely resulted in Respondent’s termination. See discussion infra,

Part II.

II. THIS COURT SHOULD REVERSE THE TWELFTH CIRCUIT’S DECISION

BECAUSE RESPONDENT HAS FAILED TO REBUT HUGH’S PRESUMED

IMMUNITY UNDER THE HCQIA, AS HE ONLY POINTS TO EVIDENCE

OF SUBJECTIVE BIAS, WHICH IS IRRELEVANT UNDER THE

STATUTE’S REQUIRED OBJECTIVE STANDARD.

By revoking Respondent’s privileges, HUGH furthered the legislative purpose

of the HCQIA, which seeks to increase the quality of American healthcare by

encouraging physicians to enforce peer review and discipline unprofessional or

incompetent physician behavior. H.R. Rep. No. 903, 99th Cong., 2d Sess. 10,

reprinted in 1986 Code Cong. & Admin. News 6287, 6392-93. HCQIA established a

presumption of immunity, whereby HUGH cannot be denied this statutorily

granted privilege unless Respondent can show by a preponderance of the evidence

that HUGH did not satisfy any one of the four-prong test of 42 U.S.C. § 11112(a).

Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461, 467-68 (6th Cir. 2003); see

Charity Scott, Medical Peer Review, Antitrust, and the Effect of Statutory Reform,

50 Md. L. Rev. 316, 348-49 (1991)(likening immunity to criminal law presumption

that plaintiff bears burden of proving guilty).

30

Congress established this presumption of immunity to encourage physicians

to participate in effective professional peer review, rather than to avoid involvement

out of the fear of personal, legal, or monetary liability. H.R. Rep. 99-903, at 6385

(calling immunity presumption “essential” for legislation’s effectiveness); Imperial

v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026, 1028 (4th Cir. 1994)(reiterating

immunity is essential to ensure effective peer review). Congress additionally

believed it was necessary to set a very high standard for piercing this immunity

because hospitals would be more likely to monitor malpractice incidents if they had

this legal protection. See Eleanor D. Kinney, Hospital Peer Review of Physicians:

Does Statutory Immunity Increase Risk of Unwarranted Professional Injury? 13

MSU J. Med. & Law 57, 65-67 (2009). This Court should find that Respondent has

not met its burden to rebut HUGH’s presumption of immunity. Beyond

Respondent’s lack of overall evidence, this Court should recognize that HUGH’s ad

hoc committee action played a key role in preserving HUGH’s ability to deliver high

quality, safe health care services to Hanover’s citizens.

A. The Ad Hoc Committee Was Correct To Objectively Evaluate Patient

Outcome Data, Which Included Mortality Rates, Infection Rates And Staff

Reports, And To Ignore Any Evidence Of Decision Maker Bias.

Petitioners followed industry peer review guidelines that have been

recommended and approved by various national organizations. The Joint

Commission on Accreditation of Healthcare Organizations (“JCAHO”) has become

such a nationally accepted standard that it is considered to be the measure of

quality in the hospital industry. Moore et al., Rethinking Peer Review: Detecting

31

and Addressing Medical Malpractice Claims Risk, 59 Van. L. Rev. 1175, 1181

(2006). The JCAHO revised its privileging and credentialing guidelines in 2007 to

implement formal peer evaluation of physicians. See Institute for Health Metrics,

“Bringing the New Joint Commission Standards for Credentialing and Privileging

Within Reach of the Community Hospital”, April 30, 2007, 2, available at

http://www.lifesciencewriter.com/Data_Driven_Physician_Credentialing.pdf; See

also Comprehensive Accreditation Manual for Hospitals 2013, (Joint Commission on

Accreditation of Healthcare Organization, 2013) (hereinafter “JCAHO Manual”).

The JCAHO grants hospitals the freedom to choose the specifics types of

evidence and data that it will use during its reviews, but encourages objective,

evidence-based information. The JCAHO Manual provides clear guidance for

conducting “Professional Practice Evaluation”, recommending certain criteria be

used: 1) review of operative procedures and outcomes; 2) pattern of blood and

pharmaceutical usage; 3) requests for tests and procedures; 4) patient length of

stay; 5) morbidity and mortality data; 6) practitioner’s use of consultants; 7) other

relevant criteria determined by medical staff. See JCAHO Manual, at MS-38-39.

Other recommended data includes sentinel event rates, infection rates, readmission

rates, and failure to follow clinical guidelines. See Institute for Health Metrics, at 4.

The JCAHO Manual also provides guidance on how to acquire this information,

recommending that hospitals conduct chart review, observe physicians, monitor

diagnostic and treatment techniques, and discuss physician performance with

nurses, administration, consulting physicians and surgical assistants. See JCAHO

32

Manual, at MS-38. The American Medical Association further recommendations

that peer review committees should rely solely on objective evidence. Medical Peer

Review, American Medical Association, http://www.amaassn.org//ama/pub/

physician -resources/legal-topics/medical-peer-review.page (last visited Sept. 9,

2013).

HUGH only utilized the types of evidence that have been approved by both

courts and the Joint Commission during its investigation of Respondent’s patient

records and performance. Because of the underlying policy concern for protecting

patients from unnecessary medical errors, courts widely accept evidence of a

physician’s high mortality rate or post-operative complication rate as proof of the

peer review committee’s quality concerns. See Harris v. Bellin Memorial Hosp., 13

F.3d 1082 (7th Cir. 1994)(permitting evidence of high mortality rates to support

peer review committee concern); Rogers v. Columbia/HCA of Cent. Louisiana, Inc.,

971 F.Supp. 229 (W.D. La. 1997)(granting hospital immunity where peer review

committee used evidence of bariatric surgeon’s post-operative complication rates).

The Joint Commission recommends the use of mortality rate data as key measuring

criteria during assessments of whether physician privileges should be revoked, and

encourages hospitals to acquire information about the physician under review

through direct observation and from fellow medical staff involved in patient care.

See JCAHO Manual at 37-40. In the July 1 letter, the ad hoc committee explicitly

explained to Respondent what information the committee would consider during his

review. The committee used his post-operative infection rate, which was 22%, his

33

mortality rate, which was extremely high, and a myriad of staff and patient

feedback. The July 31 letter then clearly explained that this specific evidence was

the basis for revoking Respondent’s privileges.

HUGH’s committee strictly used an objective standard when reviewing its

evidence because both Congress and the Joint Commission have emphasized the

importance of solely using an objective standard for peer review. In passing the

HCQIA, Congress initially considered a good faith test for peer review committees;

however, fearing that these quality reviews would become subjective evaluations

that focused on the reviewing physician’s opinions, Congress decided on an objective

reasonable belief standard. H.R. Rep. 99-903, at 6392-93. Moreover, the circuits

uniformly and unequivocally have accepted that the reasonableness standard of

HCQIA is an objective one, and agreed this objective standard must be applied

when evaluating the presumption of immunity under § 11112(a). See e.g.

Sugarbaker v. SSM Health Care, 190 F.3d 905, 912 (8th Cir. 1999); Harris, 13 F.3d

at 1082; Singh v. Blue Cross Blue Shield, 308 F.3d at 32 (1st Cir. 2002).

While Respondent alleges that the ad hoc committee considered his

ConnectSpace post in a biased manner against him, there is no evidence to support

this assertion. Article XIX, 19(a) of HUGH’s Bylaws grants the ad hoc committee

express authorization to commence a peer review at any time, so long as there are

quality and safety concerns. Nowhere do the Bylaws state that an adverse medical

event may be the only trigger for a review. Therefore, it is irrelevant whether the

ConnectSpace post was the galvanizer of the investigation because HUGH’s Bylaws

34

grant the ad hoc committee broad authority in determining when a review is

appropriate.

Furthermore, it is critical for this Court to recognize that HUGH’s review of

staff reports and patient complaints regarding Respondent’s temperament is

considered to be objective evidence. Considering personality and demeanor may

seem facially subjective; however, courts routinely accept this evidence of

physicians’ behavior because their overall demeanor and conduct while seeing

patients is inherently related to their ability to deliver quality health care, the

purpose of the HCQIA. See Bryan v. James E. Holmes Regional Medical Ctr., 33

F.3d 1318, 1335 (11th Cir. 1994)(relying on evidence of physician’s hot-tempered

nature as evidence). Courts also view testimony obtained from medical staff

interviews as a way to further evaluate a physician’s professionalism, including any

incidents of disruptive behavior or unprofessional conduct towards patients or staff

that may not have been formally filed or reported. See id.; Van v. Anderson, 199

F.Supp.2d 550 (N.D. Tex. 2002) (accepting evidence of plaintiff’s temperament and

behavior acquired through interviews with the medical staff); Clark v.

Columbia/HCA Information Services, 25 P.3d 215 (Nev. 2001)(utilizing letters

addressing concerns and complaints about physician’s professionalism). Therefore,

it was appropriate for HUGH’s committee to interview nurses during its

investigation of Respondent, and this evidence must be considered objective

evidence of clinical performance.

35

Because HUGH relied on several sources of objective evidence, and

Respondent’s allegation that the post played a role is speculative, subjective, and

unfounded by any actual evidence beyond the ConnectSpace post itself, this Court

should recognize that HUGH’s ad hoc committee action relied on appropriate and

acceptable sources of information when it decided that revoking Respondent’s

privileges was in the best interest of the entire Hanover community.

B. This Court Should Grant HUGH Immunity Because The Ad Hoc Committee

Demonstrated Evidence To Satisfy All Four Prongs Of The HCQIA, While

Respondent Failed To Present Any Evidence To Rebut That Presumption.

This Court should find that HUGH’s ad hoc committee action sufficiently met all

four prongs of the HCQIA test. To preserve immunity, this Court must find that

Petitioners acted: (1) with reasonable belief that its action was in furtherance of

quality health care; (2) after a reasonable effort to obtain the facts of the matter; (3)

after adequate notice and hearing procedures were afforded to Respondent or after

such other procedures as are fair to him under the circumstances; and (4) with the

reasonable belief that the action was warranted by the facts known after such

reasonable effort to obtain facts, and after meeting the fair notice requirements. 42

U.S.C. § 11112(a). Because it is a motion for summary judgment, the standard of

review is whether, in viewing the light most favorable to Respondent, could a

reasonable jury find that Respondent has proven, by a preponderance of the

evidence, that HUGH failed to meet one of these four statutory tests. Austin, 979

F.2d at 734. This Court should that HUGH sufficiently has met its burden to

36

maintain its immunity, while Respondent presents thin evidence even to challenge

this presumption, much less rebut it.

1. To further the quality of health care services delivered to the

Hanover community, HUGH was obligated to restrict

Respondent’s privileges when it discovered his poor surgical

outcome data and consistent unprofessional behavior.

There is a minimal standard to meet the quality test of §11112(a)(1). Courts

evaluate “quality” broadly, generally analyzing whether the committee believed

their action, at the time, was “in furtherance of restricting incompetent behavior or

would protect patients.” H.R. Rep. No. 99-903, at 6393; see also Bryan, 33 F.3d at

1335. HUGH is not required to demonstrate that its action has resulted in an

actual improvement of quality care, so long as the committee reasonably believed

the action would further quality in some way, based on the investigation evidence.

Imperial, 37 F.3d at 1030. Reasonableness is determined under an objective

standard, taking into account the totality of the circumstances surrounding

Respondent’s review. Id. Any assertion of subjective bias is completely irrelevant

because of the strict adherence to an objective standard. Austin, 979 F.2d at 734.

HUGH’s action meets the first prong of § 11112(a) as long as its decision is

based on evidence of some deficiency in Respondent’s delivery of quality health care.

In Meyer v. Sunrise Hospital, 22 P.3d 1142 (Nev. 2001), the hospital restricted a

physician’s privileges after one patient died, despite no other malpractice in her

professional history. Id. at 1146-47. The court affirmed the hospital’s immunity,

explaining that HCQIA affords immunity as long as the review committee’s action

concerned “some minimal basis related to quality health care, whether legitimate or

37

not.” Id. at 1153-54 (Shearing, J., concurring). Importantly, the court noted that

peer review committees have full discretion to take disciplinary actions, as long as

there is objective evidence of quality concerns. Id. at 1151. In Cohlmia v. St. John

Medical Center, 693 F.3d 1269, 1274 (10th Cir. 2012), the review committee revoked

a cardiac surgeon’s privileges after just two surgeries led to death and

disfigurement. The court upheld the hospital’s immunity, despite the limited

records considered, because preventing death and disfigurement sufficiently

justified the goal of improving patient safety. Id. The court reiterated that the

judiciary’s role is to review the evidence, not to evaluate medical judgment. Id.

Revoking Respondent’s privileges was rooted in concern for future cardiac

stent patients’ best interest. Like Meyer, where the physician was investigated

despite an overall good medical record, Respondent’s long-standing relationship

with the hospital’s cardiology department is irrelevant because the committee found

unacceptably high mortality and infection rates, which ranked him in the bottom

quartile of all surgeons. As noted in Meyer, minimal objective evidence of

substandard clinical practice sufficiently shows the committee was concerned about

health care quality. While the Twelfth Circuit referred to this data as being “jerry-

rigged”, there is nothing in the facts to support this proposition. Moreover, following

Cohlmia, the court’s role is to evaluate whether there was any basis for concern, not

to review the medical judgment of the committee members. Even evidence of just

one death is sufficient to raise a quality concern, and Respondent has had seven

patients die. Because the HUGH committee did have objective evidence showing

38

Respondent’s care delivery had been peppered with negative outcomes, its decision

to prevent Respondent from performing surgery on future patients was based on a

reasonable belief that this would enhance the quality of patient care at the hospital.

Documents

No. 13-1076 IN THE Supreme Court of the United Statesvi 2. HUGH’s thorough investigation, which included patient outcome data, staff interviews, and reported complaints, constituted