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No. 13-1076
In the
SUPREME COURT OF THE UNITED STATES
HANOVER UNIVERSITY GENERAL HOSPITAL; Anthony B. Glower; Mary Elizabeth
Kreutzer; Seamus O. Milk; Alicia Polishov,
PETITIONERS,
v.
Thomas L. RUTHERFORD,
RESPONDENT.
July 16, 2013
On writ of certiorari to the
United States Court of Appeals
For the Twelfth Circuit
BRIEF FOR THE RESPONDENT
Team #: 1313
Attorneys for Respondent
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QUESTIONS PRESENTED
1. Did Respondent Dr. Rutherford demonstrate that a reasonable jury could find that he has
shown, by preponderance of the evidence, that HUGH did not qualify for immunity under
HCQIA when the review panel did not have a reasonable belief Dr. Rutherford’s
suspension would further quality health care, did not provide adequate notice, and did not
act with warranted facts?
2. Did HUGH violate Dr. Rutherford’s First Amendment rights when HUGH suspended Dr.
Rutherford’s privileges shortly after he posted on his private blog his concerns that
vaccines caused autism although HUGH relied on a government grant to provide such
vaccines to children?
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TABLE OF CONTENTS
QUESTIONS PRESENTED................................................................................................. 2
TABLE OF AUTHORITIES ................................................................................................ 4
OPINIONS BELOW ............................................................................................................ 6
CONSTITUTIONAL PROVISIONS, STATUTES, REGULATIONS INVOLVED ............ 7
STATEMENT OF THE CASE .......................................................................................... 10
ARGUMENT SUMMARY ................................................................................................. 16
ARGUMENT ..................................................................................................................... 18 I. HUGH DOES NOT QUALIFY FOR IMMUNITY UNDER THE HEALTH CARE
QUALITY IMPROVEMENT ACT. ........................................................................................... 18 1. HUGH’S REVOCATION OF DR. RUTHERFORD’S PRIVILEGES WAS NOT TAKEN IN
A REASONABLE BELIEF THAT IT WOULD FURTHER QUALITY HEALTHCARE. ............ 19 2. HUGH DID NOT AFFORD DR. RUTHERFORD ADEQUATE NOTICE AND HEARING
PROCEDURES, OR OTHER FAIR PROCEDURES AS REQUIRED BY HCQIA. ....................... 22 3. HUGH DID NOT HAVE A REASONABLE BELIEF THAT THE ACTION WAS
WARRANTED BY THE FACTS KNOWN. .................................................................................... 30 4. CONCLUSION ......................................................................................................................... 31
II. THE FIRST AMENDMENT’S FREE SPEECH CLAUSE PROTECTS DR.
RUTHERFORD’S CONNECTSPACE POST ON THE CASUAL LINK BETWEEN CHILD
VACCINATIONS AND AUTISM. ............................................................................................. 32 1. THE FIRST AMENDMENT PROTECTS PUBLIC EMPLOYEES’ FREE SPEECH RIGHTS.
……………………………………………………………………………………………………………………………………………..32 2. DR. RUTHERFORD SPOKE ON A MATTER OF PUBLIC CONCERN WHEN HE
POSTED ON HIS CONNECTSPACE THAT CHILD VACCINATIONS POSSIBLY CAUSE
AUTISM IN AMERICA’S CHILDREN. .......................................................................................... 34 3. DR. RUTHERFORD’S INTEREST AS A PRIVATE CITIZEN IN COMMENTING ON
ISSUES OF PUBLIC HEALTH DOES NOT INTERFERE WITH HUGH’S INTEREST IN
PROVIDING MEDICAL CARE TO THE PUBLIC. ........................................................................ 39 4. DR. RUTHERFORD’S STATEMENTS WERE A SUBSTANTIAL MOTIVATING FACTOR
FOR HIS DISCHARGE AND HUGH DID NOT HAVE A REASONABLE JUSTIFICATION FOR
DISCHARGING DR. RUTHERFORD NOTWITHSTANDING HIS CONNECTSPACE POST. .. 44
CONCLUSION .................................................................................................................. 49
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TABLE OF AUTHORITIES
Cases
Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002)…..37.
Bond v. Floyd 385 U.S. 116 (1966)…………………………………..35.
Brader v. Allegheny Gen. Hosp., 167 F.3d 832 (3rd Cir. 1999)…….19-21, 30.
Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324 (10th Cir. 1996)…31
Bryan v. James E. Holmes Regional Medical Ctr., 33 F.3d 1318 (11th Cir.1994)……19.
Chudacoff v. Univ. Med Ctr. Of S. Nev., 609 F.Supp,2d 1163 (D. Nev. 2009)………..27.
Cohlmia v St. John Med. Ctr., 693 F.3d 1269 (10th Cir. 2012)……………………….18.
Connick v. Myers, 461 U.S. 138 (1983)……………………………………………33-35,44.
Garcetti v. Ceballos, 547 U.S. 410 (2006)…………………………………………33.
Givhan v. Western Line Consolidated School Dist., 439 U.S. 410 (1979)………….38.
Golbderg v. Kelly, 397 U.S. 254 (1970)…………………………………………….29-30.
Harden v. Adams, 760 F.2d 1158 (11th Cir. 1985)…………………………………47-49.
Moore v. Williamsburg Reg’l Hosp., 560 F.3d 166 (4th Cir. 2009)………………..18.
Mt. Healthy City School Dist. Board of Education v. Doyle, 429 U.S. 274 (1977)…33,44-48.
N.Y. Times v. Sullivan, 376 U.S. 254 (1964)…………………………………………32-34.
Pickering v. Bd. of Ed., 391 U.S. 563 (1968)……………………………………33, 39-42, 44.
Poliner v. Tex. Health Sys., 537 F.3d 368 (5th Cir. 2008)………………………19-20.
Rankin v. McPherson, 483 U.S. 378 (1987)…………………………………….33-35, 39, 41-43.
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)…………………37.
Snyder v. Phelps, 131 S.Ct.1207 (2011)………………………………………...34.
Sternberg v. Nanticoke Mem. Hosp., Inc., 15 A.3d 1225 (Del. 2011)…………..19.
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977)……44.
Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599 (4th Cir. 2009)……22, 26-29.
Waters v. Churchill, 511 U.S. 661 (1994)……………………………….41.
Williams v. Univ. Med Ctr. Of S. Nev., 688 F. Supp.2d 1111 (D. Nev. 2010)….23-24.
Statutes
42 U.S.C. § 1983 (1996)…………………………………….7, 10, 32.
42 U.S.C. § 11111 (1989)……………………………………7, 18.
42 U.S.C. § 11112 (1986)……………………………………7-8, 18-19, 22, 23, 25, 30-31, 49.
Constitutional Provisions
U.S. Const. amend. I……………………………………………7, 32-49.
Rules
Fed. R. Civ. P. 56………………………………………………7.
Other
Am. Acad. of Pediatrics, Vaccine Safety: Examine the Evidence – Studies about General Safety
and Number of Vaccines, http://www2.aap.org/immunization/families/faq/vaccinestudies.pdf
(last updated April 2013)......................................................36.
H.R. Rep. No. 99-903 (1986)…………………………..22, 26, 30-31.
Hanover University Hospital Bylaws, Article XIX 19.01………13, 27-29.
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Hanover University Hospital Bylaws, Article XIX 19.02……13
Martin Downs, Autism-Vaccine Link: Evidence Doesn't Dispel Doubts, WEBMD (March 31,
2008), http://www.webmd.com/brain/autism/searching-for-answers/vaccines-autism...36.
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OPINIONS BELOW
The district court for the District of Hanover’s ruling denying respondent’s action for
damages and granting petitioner’s motion for summary judgment is reported at No. Civ-12-523.
The opinion of the court of appeals for the 12th circuit granting respondent’s action for damages
under 42 U.S.C. § 1983 and Hanover common law is reported at No. 13-275.
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CONSTITUTIONAL PROVISIONS, STATUTES, REGULATIONS INVOLVED
The First Amendment of the United States Constitution provides:
Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the government for a
redress of grievances.
42 U.S.C. § 1983 stated in relevant part, provides:
Every person who, under color of any statute... of any State subjects, or causes to be
subjected, any citizen of the United States...to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured.
Rule 56 of the Federal Rules of Civil Procedure provides:
A party may move for summary judgment, identifying each claim or defense —
or the part of each claim or defense — on which summary judgment is sought.
The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law. The court should state on the record the reasons for granting or
denying the motion.
The Health Care Quality Improvement Act of 1986, 42 U.S.C. provides:
§11111(a): any person who participates with or assists the [professional review] body
with respect to the action, shall not be liable in damages under any law of the United
States or of any State with respect to the action.
§11112(a-c): (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 as 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
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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 are waived voluntarily by the physician):
(1) Notice of proposed action
The physician has been given notice stating--
(A) (i) that a 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,
(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).
(2) Notice of hearing
If a hearing is requested on a timely basis under paragraph (1)(B), the physician
involved must be given notice stating--
(A) the place, time, and date, of the hearing, which date shall not be less
than 30 days after the date of the notice, and
(B) a list of the witnesses (if any) expected to testify at the hearing on
behalf of the professional review body.
(3) Conduct of hearing and notice
If a hearing is requested on a timely basis under paragraph (1)(B)--
(A) subject to subparagraph (B), the hearing shall be held (as determined
by the health care entity)--
(i) before an arbitrator mutually acceptable to the physician and the
health care entity,
(ii) before a hearing officer who is appointed by the entity and who
is not in direct economic competition with the physician involved,
or
(iii) before a panel of individuals who are appointed by the entity
and are not in direct economic competition with the physician
involved;
(B) the right to the hearing may be forfeited if the physician fails, without
good cause, to appear;
(C) in the hearing the physician involved has the right--
(i) to representation by an attorney or other person of the
physician's choice,
(ii) to have a record made of the proceedings, copies of which may
be obtained by the physician upon payment of any reasonable
charges associated with the preparation thereof,
(iii) to call, examine, and cross-examine witnesses,
(iv) to present evidence determined to be relevant by the hearing
officer, regardless of its admissibility in a court of law, and
(v) to submit a written statement at the close of the hearing; and
(D) upon completion of the hearing, the physician involved has the right--
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(i) to receive the written recommendation of the arbitrator, officer,
or panel, including a statement of the basis for the
recommendations, and
(ii) to receive a written decision of the health care entity, including
a statement of the basis for the decision. 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.
(c) Adequate procedures in investigations or health emergencies
For purposes of section 11111(a) of this title, nothing in this section shall be construed
as--
(1) requiring the procedures referred to in subsection (a)(3) of this section--
(A) where there is no adverse professional review action taken, or
(B) in the case of a suspension or restriction of clinical privileges, for a
period of not longer than 14 days, during which an investigation is being
conducted to determine the need for a professional review action; or
(2) precluding an immediate suspension or restriction of clinical privileges,
subject to subsequent notice and hearing or other adequate procedures, where the
failure to take such an action may result in an imminent danger to the health of
any individual.
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STATEMENT OF THE CASE
I. Introduction
This matter arises out of the invalid and unconstitutional dismissal of Thomas L.
Rutherford, M.D., from Hanover University General Hospital (HUGH). Dr. Rutherford brought
suit against HUGH for violating his First Amendment rights under 42 U.S.C. § 1983 and for civil
damages for breach of contract, intentional infliction of emotional distress, and defamation under
Hanover common law. [R. 6]. This case involves two important issues:
1. whether Dr. Rutherford provided sufficient evidence to demonstrate that HUGH
relinquished immunity from civil damages under the Healthcare Quality Improvement
Act (HCQIA); and
2. whether Dr. Rutherford’s provided substantial evidence to demonstrate that he had a First
Amendment right in his ConnectSpace post and HUGH violated his First Amendment
rights when the suspended his privileges after he made the post.
II. Dr. Rutherford’s Dismissal
At the time that this case arose, Thomas L. Rutherford, M.D., was a respected cardiac
surgeon at Hanover University General Hospital (HUGH) who was known for being the co-
inventor of the Doda Stent, a medical device for patients with severe cardiac diseases. [R. 1, 5].
He had held surgical privileges at HUGH for 26 years and in those 26 years, had never been
confronted with a disciplinary action. [R. 1, 21].
On June 11, 2012, after learning that specialists had officially diagnosed his grandson
with autism, Dr. Rutherford posted the following passage on his ConnectSpace page:
First, Do No Harm to Children?
Confirmed. On Thursday, Declan [Dr. Rutherford’s grandson] was diagnosed: autism.
Funny how the news feels shocking even though we pretty much knew. Kudos to his
speech pathologist Lisa, a hero.
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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 any more.
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 [Dr.
Rutherford’s wife] remembers Declan liked the balloon his pediatrician gave him that
day. Tax dollars at work. ConnectSpace needs a sarcasm emoticon ;-(
Meanwhile we’re hoping. Lisa took this great picture of Declan. No smile yet but Susan
says one’s coming.
[Photo omitted]. [R. 2].
Dr. Rutherford made this post on his private ConnectSpace page, a social media outlet
that facilitates online interaction. [R.2]. Dr. Rutherford’s ConnectSpace was set to “private,” a
setting that only allows users accepted as “friends” to view posts Rutherford’s posts. [R 2].
Despite his privacy settings, Dr. Rutherford’s ConnectSpace comments were forwarded to
people without access to his ConnectSpace page, including Anthony B. Glower, M.D., the chief
of pediatrics and chief investigator of HUGH’s “99 Percent” grant. [R 2]. As the chief
investigator for the “99 grant,” Dr. Glower worked with the Hanover Disease Research Institute
(HDRI), the state agency that provided the “99 Percent” grant to hospitals. [R. 2]. The purpose of
the grant was to encourage vaccination rates in the state of Hanover. [R. 2]. As long as HUGH
continued to meet the benchmarks for vaccination rates, HUGH would continue to receive the
competitive grant. [R. 2].
After reading the post, Dr. Glower angrily texted Dr. Alicia Polishov, HUGH’s Chief of
Medicine and chair of HUGH’s Medical Executive Committee. [R. 2]. In his text, he forwarded
Dr. Rutherford’s post along with the following comment: “Tom takes a swipe @99%.” [R. 2].
The next day, Dr. Glower and Dr. Polishov spoke about Dr. Rutherford’s post. [R 3]. Dr. Glower
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expressed his opinion that Dr. Rutherford was “disrupting the initiative” of the 99 Percent grant.
[R. 3]. Later that day, Dr. Glower continued to fume over Dr. Rutherford’s ConnectSpace post.
[R. 3]. He e-mailed Dr. Polishov stating that Dr. Rutherford’s post was because of “simple envy”
- Rutherford was supposedly jealous of Glower’s success with the “99 Percent grant” and youth.
[R 3]. The following morning, Dr. Glower wrote another email to Dr. Polishov claiming Dr.
Rutherford was a “trainwreck” and he would take the hospital down with him. [R 3].
Following these emails, Dr. Polishov initiated a “request for corrective action” against
Dr. Rutherford. [R 3]. Under HUGH bylaws, the Medical Executive Committee (MEC) may
initiate a corrective action against a physician if the MEC has received reliable information from
medical personnel that the physician’s conduct is (1) “detrimental to patient safety or to the
delivery of quality patient care,” (2) violates HUGH bylaws, or (3) below standards of
professional conduct. [R 4, 25]. At the time of these events, Dr. Polishov was the chair of the
MEC at HUGH. [R. 4]. As chair, she initiated the complaint against Dr. Rutherford and approved
the appointment of a committee to investigate Dr. Rutherford. [R. 4]. Dr. Polishov assigned four
staff members to the ad hoc committee: (1) Dr. Glower, the physician who had complained to her
regarding Dr. Rutherord’s ConnectSpace post; (2) Dr. Milk, a retired cardiac surgeon; (4) Dr.
Ling, a general surgeon; and (4) Mary Elizabet Kreutzer, the Director of Nursing, sitting on the
committee ex officio. [R. 4].
On July 1st, a letter was sent to Dr. Rutherford informing him the Medical Executive
Committee (MEC) would consider revoking his privileges based on the ad hoc committee
findings and informed him of his right to a fair hearing. [R 4]. The letter specified the committee
would evaluate autopsy findings, malpractice and patient complaints, his temperament, and
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compliance with hospital rules pursuant to Article XIX of HUGH bylaws. [R. 4]. The letter did
not state the basis for the investigation or describe the allegations against Dr. Rutherford. [R. 4].
The ad hoc committee gathered information from the last six years (July 2006-June 2012)
on Dr. Rutherford’s work as an Active Staff1 member at HUGH. [R. 4]. Dr. Milk and Director of
Nursing Kreutzer reviewed Dr. Rutherford’s documents from these six years and interviewed a
few undisclosed members of the staff. [R. 4].They reported their findings orally to the ad hoc
committee. [R. 4-5]. However, they did not submit a formal report as required by HUGH’s
bylaw 19.01(3). [R. 4-5, 25]. Furthermore, the committee did not record the meeting, did not
have an official chair, did not have a secretary to maintain minutes, and did not give Dr.
Rutherford an opportunity to present his case to the committee. [R. 4-5].
Following the meeting, the MEC wrote a letter to Dr. Rutherford on July 31st stating his
privileges were revoked and his Active Staff appointment was terminated. [R. 5]. The letter
listed its reasons as “unacceptably high rates of morbidity and post-operative complications,”
“failure to meet [HUGH] standard of care,” and “conduct that impedes quality patient care.” [R.
5]. Specifically, the report alleged that Dr. Rutherford lost 7 patients in 6 years, ranked 12th
of 15
amongst like physicians, and had a 22 percent post-operative infection rate compared to the
hospital average of 15 percent. [R. 11]. . During the six-year period the hospital used to evaluate
Dr. Rutherford, four other cardiac surgeons at HUGH each lost more than 7 patients on the
operating table. [R. 11]. In addition to the allegations of substandard care, the committee
reported Dr. Rutherford had an altercation with a patient’s wife in 2006 and had two complaint
letters, one in 2007 and one in 2009. [R. 11].
1 An Active Staff member is a physician who regularly performs a hospital-based specialty at
HUGH and participates in teaching or research. [R. 4].
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The letter informed Dr. Rutherford of his right to a hearing. [R. 5]. In his response letter,
Dr. Rutherford declined a hearing and disagreed with the committee’s findings. [R. 5]. He stated
that his patients who needed the Doda Stents were among the most vulnerable patients in the
hospital and given their greater vulnerability, his record was actually “extraordinarily good.” [R.
5]. Further, he explained his post-operative rate was high due to the Hospital’s HVAC system
malfunction that piped sewage exhaust into the recovery rooms. [R. 5]. It was Dr. Rutherford
who discovered the problem with the exhaust system and eventually saved future patients from
continued infection. [R. 21].
After his suspension, Dr. Rutherford appealed to the HUGH Board of Trustees to reverse
the MEC’s decision. [R. 6]. The Board of Trustees reversed the MEC’s decision and reinstated
Dr. Rutherford’s privileges without explanation. [R. 6]. He returned to work on August 28th
. [R.
6]. In addition to his appeal to the HUGH Broad of Trustees, Dr. Rutherford brought this civil
rights action against HUGH for violating his constitutional rights under 42. U.S.C. § 1983.
Specifically, he claims his First Amendment right to free speech and Fifth and Fourteenth
Amendments rights to due process. He also claimed breach of contract, intentional infliction of
emotional distress, and defamation under Hanover common law. [R. 6]. Dr. Rutherford withdrew
the due process claim but preserved the First Amendment and common law complaints. [R 6].
III. Procedural History
Before trial, HUGH and the four individual defendants moved for summary judgment
before the district court. [R.1]. The district court granted HUGH’s motion against both the First
Amendment claim and his common law claims. [R.13]. According to the court, Dr. Rutherford’s
First Amendment claim failed because Dr. Rutherford’s ConnectSpace post did not address a
matter of public concern and HUGH’s interest in providing services outweighed Dr. Rutherford
15
minimal interest in that particular speech. [R. 8-10]. Additionally, the district court rejected Dr.
Rutherford’s common laws claims because the court argued Dr. Rutherford could not rebut by a
preponderance of the evidence the statutory presumption of immunity that HUGH did not
comply with the professional standards required by HCQIA. [R.13].
Dr. Rutherford appealed the trial court’s decision arguing that the court misapplied the
Pickering-Connick analysis for the First Amendment and the court misconstrued the standards
and permissible standard for evaluating a healthcare entity’s review committee under HCQIA.
[R. 16]. The Court of Appeals of the 12th
Circuit agreed. On June 3, 2013, the Court of Appeals
reversed the district court. [R. 23]. The Court found that Dr. Rutherford provided sufficient
evidence to show (1) that a reasonable jury could find that Dr. Rutherford had a First
Amendment right in his ConnectSpace post and (2) that a reasonable jury could find that Dr.
Rutherford had shown by a preponderance of the evidence that HUGH did not adhere to the
standard of HCQIA and thereby relinquished immunity. [R. 23]. HUGH petitioned the Court of
Appeals decision and the Supreme Court granted cert on July 16, 2013.
Now, in response to the Petitioners’ brief, Respondent Dr. Rutherford respectfully
requests the Supreme Court to deny Petitioner’s appeal and affirm the Court of Appeals decision,
remanding this case to the district court for trial. In support of his response, Respondent states as
follows:
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ARGUMENT SUMMARY
A reasonable jury could find that Dr. Rutherford could show, by a preponderance of
evidence, that Hanover University General Hospital (HUGH) did not meet the Health Care
Quality Improvement Act (HCQIA) requirements. HCQIA provides professional review panels
immunity from common law claims that arise from a panel’s actions. Hanover University
General Hospital (HUGH) does not have immunity. First, HUGH did not have a reasonable
belief suspending Dr. Rutherford furthered quality healthcare because he did not have a history
of providing substandard care. Further, HUGH did not afford Dr. Rutherford adequate notice and
hearing procedures through the HCQIA safe harbor provision because he was not provided
notice of the charges against him or an explanation of his procedural rights. HUGH did not
afford Dr. Rutherford other fair procedures when it failed to inform him of the allegations, his
right to present his case, and to keep a committee record. Finally, HUGH did not have a
reasonable belief Dr. Rutherford’s suspension was warranted by the known facts because its
investigation was unreasonably narrow.
Additionally, there is a genuine issue of material fact as to whether HUGH violated Dr.
Rutherford’s First Amendment free speech rights when it revoked his privileges and removed
him from Active Staff after he posted about the Autism-vaccine connection on his ConnectSpace
page. The decision of the appellate court should therefore be upheld. First, in accordance with
the Pickering-Connick test, Dr. Rutherford spoke on a matter of public concern when he posted
on his ConnectSpace that child vaccines may be connected to Autism because his statement
concerned public health Second, Dr. Rutherford’s interest as a private citizen in commenting on
issues of public health does not interfere with HUGH’s interest in providing medical care to the
public because HUGH did not have a reasonable belief that Dr. Rutherford’s speech would
17
disrupt the work environment or obstruct vaccination initiatives. Third, Dr. Rutherford’s
statements were a substantial and motivating factor for his discharge and HUGH did not have a
reasonable justification for discharging Dr. Rutherford. HUGH could not show, by a
preponderance of evidence, that Dr. Rutherford would have been fired on non-protected speech
grounds because the fact record does not support revocation and termination.
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ARGUMENT
I. HUGH DOES NOT QUALIFY FOR IMMUNITY UNDER THE HEALTH
CARE QUALITY IMPROVEMENT ACT.
The Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. § 11111(a)
provides immunity from common law damages to professional review panels if the professional
review action complies with the standards of 42 U.S.C. § 11112(a). To qualify for immunity
under HCQIA, a professional review action must be taken:
1) in a reasonable belief that the 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 are afforded to the physician involved or
after such other procedures as are fair 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).
42 U.S.C. § 11112(a).
Although HCQIA presumes immunity for professional review panels, it “does not
provide unqualified immunity to all peer review decision.” Moore v. Williamsburg Reg’l Hosp.,
560 F.3d 166, 171 (4th Cir. 2009); see also Cohlmia v St. John Med. Ctr., 693 F.3d 1269, 1277
(10th Cir. 2012). “In order to ensure that [peer] review is effective and not abused, HCQIA only
provides immunity to ‘professional review actions’ based on a physician's ‘competence or
professional conduct,’ 42 U.S.C. § 11151(9), and it mandates specific standards and procedures
that must be followed, id. at § 11112(a)” Id. Review actions unrelated to the physician’s
competence or professional conduct that fail to meet the standards are unreasonable and
immunity no longer applies. Id. For a healthcare professional to overcome summary judgment
due to this presumption of reasonableness, the healthcare professional must show that a
19
reasonable jury could conclude, by a preponderance of the evidence, that the standards were not
satisfied. Sternberg v. Nanticoke Mem. Hosp., Inc., 15 A.3d 1225, 1231(Del. 2011); Brader v.
Allegheny Gen. Hosp., 167 F.3d 832, 839 (3rd Cir. 1999).
1. HUGH’S REVOCATION OF DR. RUTHERFORD’S PRIVILEGES WAS NOT
TAKEN IN A REASONABLE BELIEF THAT IT WOULD FURTHER QUALITY
HEALTHCARE.
In the case at bar, HUGH relinquished immunity because it did not revoke Dr.
Rutherford’s privileges in a reasonable belief it would further quality healthcare. The
professional review panel is not immune when the reviewers do not act with reasonable and
objective belief that the action would further quality healthcare. 42 U.S.C § 11112(a)(1). A
professional review panel has a reasonable belief when “the reviewers, with the information
available to them at the time of the professional review action, would reasonably have concluded
that their action would restrict incompetent behavior or would protect patients.” Bryan v. James
E. Holmes Regional Medical Ctr., 33 F.3d 1318 (11th Cir. 1994) (citing H.R. Rep. No. 903, at
10, reprinted in 1986 U.S.C.C.A.N. at 6392-93).
In Poliner v. Tex. Health Sys., the Court found that an ad hoc review committee had a
reasonable belief to suspend the physician’s privileges when the physician had a history of
providing substandard care to a number of patients. 537 F.3d 368, 379-80 (5th Cir. 2008). The
Court found the review committee had acted reasonably because (1) the doctor had admittedly
misdiagnosed a patient, resulting in the patient experiencing respiratory failure; (2) colleagues
had reported the doctor to hospital administrators for providing sub-par care to other patients;
and (3) the ad hoc committee reviewed his patient records and concluded that the doctor had
provided substandard care to more than half of his patients. Id.
Similarly in Brader v. Allegheny Gen. Hosp. the court found a review panel had
reasonable belief to suspend the physician when the physician violated numerous hospital bylaws
20
and surgical standards despite consultation from hospital personnel. 167 F.3d 832, 840-41 (3rd
Cir. 1999). Specifically, the Court found the committee acted reasonably when (1) there was
evidence that two patients died as a result of the physician’s substandard surgery, (2) another
patient suffered an unnecessarily long recovery because of the physician’s negligence, (3) the
physician had a history of disruptive behavior with other employees despite efforts by hospital
administrators to intervene, and (4) the physician performed surgery without notifying his
superiors in accordance with hospital rules. Id. at 836. These events led the hospital to conduct a
data compilation that showed the physician accounted for 50 percent of mortalities in abdominal
cases. The four other doctors performing abdominal surgeries at the hospital each accounted for
only 10 percent of mortalities. Id. Based on these events, and without evidence to the contrary
from the physician, the Court found that the hospital had a reasonable belief that suspending the
physician would further quality healthcare. Id. at 841.
In contrast to the physicians in Poliner and Bader, Dr. Rutherford did not have a history
of providing substandard care to patients. HUGH alleges that it acted reasonably because
Rutherford had unacceptably high rates of morbidity and post-operative infections. HUGH
specifically cited that in a six-year period, Dr. Rutherford had 7 patients die on the operating
table and a post-operative infection rate of 22 percent (7 points above the hospital average 15
percent). However, HUGH’s allegations overlook significant information that alters the meaning
of these numbers. For instance, HUGH ignored the fact that Dr. Rutherford provided medical
care to an abnormally vulnerable patient group – individuals with severe cardiac issues. Despite
the fragile health of his patients, Dr. Rutherford provided care similar to that of other physicians
at the hospital. During the six-year period the hospital used to evaluate Dr. Rutherford, four other
cardiac surgeons at HUGH each lost more than 7 patients on the operating table. Even with a
21
highly vulnerable patient group, Dr. Rutherford was ranked 12 out of 15 for patient mortality
rates amongst cardiac surgeons at HUGH. Regarding Dr. Rutherford’s higher post-operative
infection rate, HUGH discounted the fact that Dr. Rutherford continued to provide care during a
period when the entire hospital had a peak infection rate due to a malfunctioning exhaust system.
It was Dr. Rutherford’s attention to patient safety that led him to discover that the exhaust system
was pumping sewage air into the recovery room. Had he not been so attentive to the healthcare
of his patients, the exhaust system would have continued to threaten the lives of all patients at the
hospital.
Furthermore, Dr. Rutherford did not have a history of violating hospital bylaws or rules
when providing care at the hospital. Unlike Brader where the physician had well documented
history of violating hospital by-laws and rules, Dr. Rutherford did not have similar history.
HUGH never accused Dr. Rutherford of acting contrary to Hospital rules or by-laws. HUGH’s
claims that Dr. Rutherford had patients complain regarding his bedside manner. However, no one
at HUGH ever told Dr. Rutherford that his behavior was unacceptable or in violation of hospital
standards. In Brader, hospital administrators spoke with the physician regarding the violations of
hospital rules and his poor patient outcomes before initiating review committees. In contrast,
Drs. Polishov and Glower neither accused Dr. Rutherford of violating hospital rules nor talked to
Dr. Rutherford regarding his bedside manner. Indeed, the only feedback Dr. Rutherford received
from hospital was when the investigation started, after Drs. Polishov and Glower’s exchanged
emails about Dr. Rutherford’s ConnectSpace post.
Without a history of providing substandard care and only a few complaints regarding
rude bedside manner, HUGH could not come to reasonable conclusion that their actions to
dismiss a renowned cardiologist furthered quality healthcare. Furthermore, Dr. Rutherford
22
offered substantial evidence contradicting HUGH’s allegations, showing that he actually
provided health care well above the norm at HUGH by saving patients lives when he discovered
the exhaust pipe pumping sewage air into the recovery room and by maintaining morbidity and
post-operative infection rates when he was operating on a particularly vulnerable clientele.
Because HUGH has insufficient evidence to support that they acted reasonably, and Dr.
Rutherford has provided substantial evidence demonstrating that he provided above-par
healthcare, a reasonable jury could find that Dr. Rutherford demonstrated by preponderance of
the evidence that the review panel did not have a reasonable and objective belief that the action
would further quality healthcare.
2. HUGH DID NOT AFFORD DR. RUTHERFORD ADEQUATE NOTICE AND
HEARING PROCEDURES, OR OTHER FAIR PROCEDURES AS REQUIRED
BY HCQIA.
HUGH also failed to afford Dr. Rutherford adequate due process protections as required
by HCQIA. Section 11112(a)(3) of HCQIA requires that a health care entities provide “adequate
notice and fair hearing procedures” or “other procedures as are fair” to the physician to protect
the physician from partial or biased adverse employment actions. See H.R. Rep. No. 99-903, at
10-11 (1986). A hospital can meet the adequate notice and hearing requirement by either (1)
satisfying the safe harbor provisions of 42 U.S.C. § 11112(b) or (2) by providing other
objectively reasonable and fair procedures to the physician. Wahi v. Charleston Area Med. Ctr.,
Inc., 562 F. 3d 599, 607 (4th Cir. 2009). In the case at hand, there is substantial evidence
demonstrating the HUGH failed to provide adequate protections in accordance with the safe
harbor provision or other reasonable procedure protections when it took action against Dr.
Rutherford.
23
A. HUGH did satisfy the strict requirements of the safe harbor provision because it did
not give adequate “reasons for the proposed action” and did not include “a
summary of the rights in the hearing under paragraph (3).”
First, HUGH did not provide the adequate procedures required by the safe harbor
provision. For a healthcare entity to fall into the safe harbor provision of § 11112(b), the health
care entity must give adequate notice of the proposed action. 42 U.S.C. § 11112(b)(1). In
addition to other requirements,2 the safe harbor requires that the notice of proposed action state
“the reasons for the proposed action” and “a summary of the rights in the hearing under
paragraph (3).” Paragraph (3) states that the healthcare entity must state that the physician has a
right to a hearing, and in that hearing, the physician has the right:
(i) to representation by an attorney or other person of the physician's choice;
(ii) to have a record made of the proceedings, copies of which may be
obtained by the physician upon payment of any reasonable charges
associated with the preparation thereof,
(iii) to call, examine, and cross-examine witnesses,
(iv) to present evidence determined to be relevant by the hearing officer,
regardless of its admissibility in a court of law, and
(v) to submit a written statement at the close of the hearing……
§ 11112(b)(3)(C)(i-v).
In Williams v. University Medical Center of Southern Nevada, the court held that when a
physician shows that the healthcare entity failed to provide the procedural and fairness
requirements of HCQIA, the entity relinquished its right to HCQIA immunity. 688 F.Supp.2d
1111, 1133 (D. Nev. 2010). In Williams, the University Medical Center of Southern Nevada
(UMC) placed Dr. Williams on a summary suspension after complaints were made regarding
2 (A) (i) that a 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, (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). §11112(b)(1)(A-C).
24
temperament and patient care. Id. at 1114. The Medical Executive Committee (MEC) advised
Williams, in writing, that he should be expected to answer questions about specific incidents
involving (1) premature extubation and (2) potentially threatening behavior in response to a
complaint made against Dr. Williams. Id. at 1115. However, the MEC did not notify the
physician that he was be investigated for charges other misconduct discussed at his later hearing.
Id. at 1131. The MEC met to discuss the suspension and ultimately decided to extend the
suspension. Id. Williams requested a hearing from the Fair Hearing Committee, which
determined that the MEC had acted appropriately, and recommended revoking Dr. Williams’
privileges, unless he underwent training, management and “critically reviewed his judgment.” Id.
at 1120. The MEC accepted the recommendations of the Fair Hearing Committee. Id. at 1120.
The Court held that MEC’s actions failed to meet the requirements of the safe harbor provision
because “the summary suspension letter [said] nothing about why Williams was being
suspended, [did] not state Williams' immediate suspension was required to protect patient safety,
and [did] not provide a reason for such a finding.” Id. at 1128.
Similar to Williams, HUGH failed to provide Dr. Rutherford with notice of the charges,
which hampered Dr. Rutherford’s ability to obtain meaningful review. The Williams court
indicated that a suspension letter, a phone call explaining the suspension and a second letter
setting forth the areas of discuss were inadequate. Id. at 1127. Notice should include an
explanation of why a doctor is being suspended and should provide a reason for the finding. Id.
at 1128. In the July1 letter, HUGH informed Dr. Rutherford that the MEC would consider
revoking his privileges based on the ad hoc committee findings. The July 1 letter did not give
reasons for the proposed action of MEC’s consideration of revoking Dr. Rutherford’s privileges.
25
Furthermore, HUGH did not explain Dr. Rutherford’s procedural rights in the
notice of proposed action. Dr. Rutherford was informed that he had the right to request a
fair hearing and the right to counsel, but did not explain his rights in the detail required
by HCQIA. In neither the letter proposing the investigation on July 1st or the letter
revoking his privileges described that at the hearing he could to call, examine, and cross-
examine witnesses; present evidence determined to be relevant by the hearing officer,
regardless of its admissibility in a court of law; or to submit a written statement at the
close of the hearing. Additionally, the letter did not allege the evidence supporting the ad
hoc committee’s determination or the witnesses that would testify against Rutherford so
he could develop a meaningful defense.
The ad hoc committee’s letters were nothing more than unsubstantiated claims
against Dr. Rutherford lacking a thorough explanation of Dr. Rutherford’s rights. Dr.
Rutherford himself did not know the severity of the action as demonstrated by his
admitted ignorance of the severity of the hearing. Because the letters failed to provide Dr.
Rutherford adequate explanations of his rights and the accusations against him, HUGH
failed to meet the procedural protections of HCQIA and thereby, relinquished its right to
immunity.
B. HUGH did not provide Dr. Rutherford other fair procedures before revoking
his privileges as required by HCQIA.
Furthermore, HUGH did not provide fair other procedures to Dr. Rutherford before
revoking his privileges. An entity does not maintain HQCIA immunity when it fails to provide
“other procedures as are fair to the physician under the circumstances.” 42 U.S.C. § 11112(a)(3).
Although the other fair procedures requirement may be satisfied when a review committee
26
provides fewer due process protections than those outlined in the safe harbor provision, Congress
intended that “physicians [still] receive fair and unbiased review to protect their reputations and
medical practices.” H.R. Rep. No. 99-903, at 11 (1986). To determine whether the committee
provided adequate other procedures, the courts look at whether, under a totality of the
circumstances, fair procedures were provided in an objectively reasonable manner. Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 610 (4th Cir. 2009).
In Wahi the court upheld the hospital’s immunity through the “other procedures”
provision of HCQIA because the totality of the circumstances demonstrated that the hospital
worked with the physician to provide fair procedures but the physician did everything in his
power to avoid a hearing. Id. at 614. In Wahi, the hospital began proceedings against the
physician after the hospital received several reports that the physician had violated the terms of
his provisional clinical privileges. Id. at 602. Before the disciplinary investigation began, the
hospital wrote the physician a letter, informing him that the Credentials Committee planned to
investigate his privileges. Id. Between the time the investigation began and the suspension of his
privileges, the physician engaged in ongoing discussions, meetings, and correspondence with the
review committee regarding his privileges. Id. at 603. During meeting, he was given an
opportunity to testify and confront the allegations against him. Id. at 611. After his privileges
were suspended, he obtained counsel and requested a hearing to review his suspension. Id. at
603. When the hospital attempted to set a panel and hearing date, the physician repeatedly
rejected panel members and failed to provide a hearing date that was convenient for him. Id.
When the physician attempted to sue the committee, claiming that HCQIA immunity did not
apply because he had not received specific reasons in his suspension letter, he did not receive a
hearing, and he did receive a witness list in accordance with hospital by-laws, the Court rejected
27
his argument. Although the Court agreed that the hospital should have followed its by-laws and
provided better procedures, the totality of the circumstances, primarily the physician’s multiple
opportunities to present his case and his efforts to thwart setting a hearing, showed that the
hospital provided objectively reasonable and fair other procedures. Id.
In contrast to Wahi, a federal district court found that when hospital did not provide the
physician a chance to refute or challenge the allegations against him, the hospital failed to
provide other fair procedures. Chudacoff v. University Medical Center of Southern Nevada, 609
F.Supp.2d 1163, 1174 (D. Nev. 2009). In Chudacoff, the hospital MEC initiated an investigation
and suspension against a physician without notifying the physician of the reasons for the
suspension. Id. According to the physician, the investigation came out of the blue, suspiciously
after he had written a letter in the Chief of Obstetrics criticizing the quality of residents coming
from that department. Id. at 1165. The letter advised the physician that he was entitled to a fair
hearing but did not describe the accusations against the physician. Id. at 1165-66. Before the
physician could learn the substance of the allegations and confront them, the University
dismissed him from the hospital. Id. The Court held that because the hospital suspended the
physician without notification of the suspension or the allegations against him, the physician was
deprived his “other fair procedure” rights under 42 U.S.C § 11112(a)(3). Id. at 1175.
Similar to the physician in Chudacoff, Dr. Rutherford has presented substantial evidence
that HUGH did not provide adequate or fair “other procedures” when investigating and
suspending him. First, HUGH failed to provide reasonable other procedures when MEC
incorrectly initiated the investigation into Dr. Rutherford without first talking to him about his
work product and without reliable information that he threatened patient safety. For instance,
according to HUGH bylaw 19.01, the Medical Executive Committee may initiate an
28
investigation against a doctor if the MEC receives reliable information that the physician
exhibited conduct likely to be detrimental to quality health care. See Wahi, 562 F.3d at 609
(holding the adherence is admissible proof when evaluating the reasonableness of a committee’s
actions.) Such intervention is only appropriate after considering collegial intervention. HUGH
bylaw 19.01(a). In this case, Dr. Polishov, the chair of the MEC, both made the request to the
MEC and granted the request for the investigation intro Dr. Rutherford. She did not stipulate
why she was initiating the request or why she was granting the request. She did not consider
collegial intervention or make any efforts to speak with Dr. Rutherford regarding his work
product. Pursuant to her authority of the chair, she appointed the ad-hoc committee without
approval from any other member of the MEC and maintained no record of the decision to
appoint the ad-hoc committee. See HUGH bylaw 19.01(b) (“If the MEC determines that an
investigation would be appropriate, it shall make a record of this action in its official minutes).
Dr. Polishov clearly violated the Hospital’s own by-laws, and in doing so, abused her position as
the chair to both make the request and grant the request without providing any reliable
information for investigating Dr. Rutherford or a record of the decision for Dr. Rutherford to
later scrutinize.
In addition to incorrectly initiating the investigation into Dr. Rutherford, HUGH failed to
provide reasonable procedures in the way it conducted the investigation into Dr. Rutherford. By-
law19.01(f) requires that a physician is notified of (1) the basis and intended scope of
investigation and (2) that he can have an opportunity to provide information to the committee
investigation. MEC’s letter to Dr. Rutherford pursuant to bylaw 19.01 though does not say the
basis for his investigation outside of boilerplate statements of what they would investigate. The
letter did not explain the purpose for the investigation, the reason behind the investigation, or any
29
other factual foundation for Dr. Rutherford to confront the allegations against him. In addition to
failing to provide any substantive allegation for Dr. Rutherford to evaluate and scrutinize, the
letter did not inform him that he would have an opportunity to present his case to the committee
outside of his right to request a hearing. Unlike the physician in Wahi who knew the charges
against him, knew his rights as outlined in multiple documents given to him, and had an
opportunity to confront the allegations before the conclusion of the investigation, Dr. Rutherford
had zero opportunity to learn of the basis for the investigation and confront the allegations.
Finally, HUGH did not provide reasonable “other procedures” when it concluded its
investigation and suspended Rutherford’s privileges but failed to properly maintain records for
Dr. Rutherford to scrutinize. Bylaws 19.01(b), (e), and (g) required (1) that MEC record in its
official minutes that an investigation has started, (2) that the ad hoc committee keep a written
investigation report of their findings, and (3) that the ad hoc committee submit a written report
and recommendation to the MEC. None of this was done in the case of Dr. Rutherford. There is
no record of initiating the investigation. No record from the ad hoc committee. No report from
the ad hoc committee to the MEC. During the investigation, committee members such as Dr.
Milk and Director Kruetzer gave oral testimony regarding their findings from interviews with
undisclosed staff, however no minutes or recordings were maintained. It is an understatement to
say that the ad hoc committee’s operation was “somewhat informal” when they had “no official
chair, no secretary, no minutes, no observance of Robert’s Rules of Order, and no tape recording
of deliberations.”
The Supreme Court has recognized that “in almost every setting where important
decisions turn on questions of fact, due process requires an opportunity to confront and cross-
examine adverse witnesses.” Golbderg v. Kelly, 397 U.S. 254, 269 (1970). The Court recognizes
30
that when an entity seeks to deprive a person of a right, that person should have at least a
minimal opportunity to confront that entity and the reasons for the deprivation. Id. Although Dr.
Rutherford’s suspension does not reach the level of a constitutional right and deprivation of that
right, the language in HCQIA demonstrates that minimal due process protections are required
before a review committee deprives a doctor of his privileges. See 42 U.S.C. § 11112(a)(3) (“a
professional review committee action must be taken…after such other procedures as are fair to
the physician under the circumstances”); H.R. Rep. No. 99-903 at 11 (1986) (“[I]t is the
Committee’s intent that physicians receive fair and unbiased review to protect their reputations
and medical practices.”). In the case at hand, the evidence shows that Dr. Polishov, the MEC,
and the ad hoc committee did as little as possible to provide fair procedures to Dr. Rutherford
despite the damage such an event has on a doctor’s career and reputation. They did not inform
him of allegations, his right to present his case, or maintain records so Dr. Rutherford could
scrutinize their conclusions at a hearing. For the foregoing reasons, it is clear that HUGH did not
maintain reasonable “other procedures” in accordance with 42 U.S.C. § 11112(a)(3) and
immunity should be denied.
3. HUGH DID NOT HAVE A REASONABLE BELIEF THAT THE ACTION WAS
WARRANTED BY THE FACTS KNOWN.
Finally, a professional review panel loses immunity if the review action was not taken in
a reasonable belief that the action was warranted by the known facts. 42 U.S.C. § 11112(a)(4).
The analysis of the fourth factor closely tracks the analysis of the first factor. Brader v.
Allegheny Gen. Hosp., 167 F.3d 832, 843 (3rd Cir. 1999). In addition to HUGH’s minimal
evidence not satisfying the first factor, the ad hoc committee’s review was unreasonably narrow
and thus HUGH’s action was not warranted by the facts known.
31
In Brown v. Presbyterian Healthcare Servs. The 10th
Circuit held the hospital did not
have immunity in part because the evidence against Brown was too narrow. 101 F.3d 1324, 1334
(10th Cir. 1996). There, only two of Brown’s charts were reviewed before her privileges were
revoked. Id. The court held that was “unreasonably narrow” and did not constitute a reasonable
basis that Brown posed a threat to the quality of healthcare. Id
Similarly, Dr. Rutherford’s actions were only investigated by two people. They only
interviewed a “few members” of this hospital staff. They did not generate a concrete report to
submit to the ad hoc committee, but instead reported what the “few members” said orally. Like
in Brown where two files were too narrow, informal interviews with a few members of the
hospital staff is unreasonably narrow and Dr. Rutherford’s suspension was not warranted by
those facts.
4. CONCLUSION
Dr. Rutherford’s evidence clearly shows that HUGH does not have immunity under HCQIA
because it fails to satisfy factors (1), (3), and (4) factors of 42 U.S.C. §11112(a). Dr. Rutherford
has provided more than a preponderance of the evidence that HUGH (1) did not act in reasonable
belief Dr. Rutherford’s suspension would further quality healthcare, (2) did not provide Dr.
Rutherford with adequate notice, and (3) the facts did not warrant Dr. Rutherford’s suspension.
Additionally, the evidence shows that Polishov, the MEC, and the committee acted completely
contrary to HUGH’s bylaws, ignoring even the most basic protections of Dr. Rutherford’s due
process. A physician’s reputation and privileges are essential to one’s career. When hospital
administrators purposefully act without just cause to harm that doctor’s reputation, they are no
longer deserving of the protections of HCQIA. H.R. Rep. No. 99-903, at 11 (1986). Because
HUGH does not have evidence to support its decision to review Rutherford or that HUGH
32
maintained adequate procedures, and Rutherford has provided substantial evidence that HUGH
violated his rights under HCQIA, Dr. Rutherford should be permitted to continue his case against
HUGH for common law damages.
II. THE FIRST AMENDMENT’S FREE SPEECH CLAUSE PROTECTS DR.
RUTHERFORD’S CONNECTSPACE POST ON THE CASUAL LINK
BETWEEN CHILD VACCINATIONS AND AUTISM.
In addition to permitting Dr. Rutherford to pursue his claims against HUGH and the four
individuals defendants for common law damages, Respondent Rutherford respectfully requests
that this Court affirm the Court of Appeals and remand the case for Rutherford to pursue his First
Amendment claims. HUGH violated Dr. Rutherford’s First Amendment right to free speech
when HUGH dismissed Dr. Rutherford because the hospital disagreed with the content of his
ConnectSpace post. Under the First Amendment, Dr. Rutherford’s post was protected as speech
addressing a matter of public concern. Speech on a matter of public concern is protected when it
outweighs a government employer’s interest in providing services to the public. Although the
hospital did not list the ConnectSpace post as a reason for revoking Dr. Rutherford’s privileges,
the evidence demonstrates that Dr. Rutherford’s speech was the sole reason for his dismissal. As
a violation of his First Amendment rights, Dr. Rutherford is entitled to relief under 42 U.S.C. §
1983. In support of his brief, Respondent states as follows:
1. THE FIRST AMENDMENT PROTECTS PUBLIC EMPLOYEES’ FREE
SPEECH RIGHTS.
The Supreme Court has long established that the First Amendment protects freedom of
speech regarding matters of public concern. N.Y. Times v. Sullivan, 376 U.S. 254, 269 (1964).
Such speech addressing public debates is essential to the functioning of our democratic society
and “assure[s] [the] unfettered interchange of ideas for the bringing about” of social and political
33
change. Id. It reflects our “profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open.” Id.
When a citizen accepts employment with the government, that person, as a public
employee, maintains their Constitutional right to speak freely on matters of public concern.
Connick v. Myers, 461 U.S. 138, 146 (1983). Although the government has the power, like any
employer, to regulate the conduct of its employees, that power must be balanced against the
employee’s First Amendment right to speak freely on political and social issues. Rankin v.
McPherson, 483 U.S. 378, 384 (1987). The State cannot leverage the employee-employer
relationship to force employees to forfeit their constitutionally protected right to speak freely. Id.
“So long as employees are speaking as citizens about matters of public concern,” the government
can only restrict that speech to what is necessary for the State to operate efficiently and
effectively. Garcetti v. Ceballos, 547 U.S. 410, 419 (2006).
In the cases Pickering and Connick, the Supreme Court outlined a three-part inquiry to
balance an employee’s First Amendment right against the government’s right to regulate its
employees. First, the Court determines whether the public employee spoke as a private citizen on
a matter of public concern. Rankin, 483 U.S. at 384-85. Second, if the first prong is satisfied,
then the Court balances the employee’s right to speak freely against the government’s interest in
the performance of its official duties. Id. at 388.Third, the employee must demonstrate that their
speech was a substantial motivating factor in the government’s discharge or regulation of the
employee. Mt. Healthy City School Dist. Board of Education v. Doyle, 429 U.S. 274, 287 (1977).
If the employee demonstrates that their speech was a substantial or motivating factor, the burden
shifts to the employer to show, by preponderance of evidence, that it would have reached the
same decision notwithstanding the speech. Id.
34
2. DR. RUTHERFORD SPOKE ON A MATTER OF PUBLIC CONCERN WHEN
HE POSTED ON HIS CONNECTSPACE THAT CHILD VACCINATIONS
POSSIBLY CAUSE AUTISM IN AMERICA’S CHILDREN.
The threshold question in determining a public employee’s First Amendment rights is
whether the speech addressed a matter of public concern. Rankin, 483 U.S. at 384-85. Public
concern is expression relating to any matter of political, social, or other community concern.
Connick, 461 U.S. at 146. It is speech that deals with a subject of general interest and value to
the public. Snyder v. Phelps, 131 S.Ct. 1207, 1216 (2011). “Whether an employee’s speech
addresses a matter of public concern must be determined by the content, form, and context of a
given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-148. In short, the
Court should look at what was said, where it was said, and how it was said.
A. The content of Dr. Rutherford’s speech addressed a matter of public
concern because it addresses important public health issues.
Dr. Rutherford’s ConnectSpace post questioning the safety of vaccinations for children
directly addresses a matter of public concern. In New York Times v. Sullivan, the Supreme Court
held that speech addresses matters of public concern when it deals with a subject of social or
political value to the public. 376 U.S. at 299. The refinement, sophistication, or unpleasantness
of the speech is irrelevant. Snyder, 131 S.Ct. at 1216.
In Rankin, the Supreme Court held that a clerical employee’s hyperbolic statement
expressing her hope that the President would be killed was protected speech. 483 U.S. at 386-87.
According to the Court, the statement was protected because the employee made the statement
during a conversation discussing the President’s policies and the statement was an exaggerated
expression of dislike, not an actual threat to kill the president. Id. Since the statement addressed
the state of politics in the United States, it was a statement addressing matters of social and
political value. Id. The Court reiterated that the inappropriate or controversial character of the
35
statement was irrelevant to the determination of whether it dealt with a matter of public concern.
According to the court, “[j]ust as erroneous statements must be protected to give freedom of
expression the breathing space it needs to survive, so statements criticizing public policy and the
implementation of it must be similarly protected.” Id. at 387. Therefore, although the employee’s
statements were unpleasant, they were still expressions related to issues of public concern, i.e.
the president’s policies, and were protected by the First Amendment. Id.
Speech addressing matters of public concern does not lose its protected status because it
is made along with speech addressing personal issues. Connick, 461 U.S. at 149. In Connick the
Supreme Court found that an employee’s survey question regarding whether fellow district
attorneys felt pressure to work in political campaigns addressed matters of public concern even
though it was made in the context of a larger survey addressing personal employment issues. Id.
Because the single question in the entire survey addressed a matter of public concern, the court
balanced the employee’s right to ask that question against the employer’s right to regulate the
speech. Id. at 149-150. The Court held that only when the Court determines that the speech is of
purely personal interest would the First Amendment and federal court not be the proper forum
for evaluating the adverse event. Id. at 147.
In line with the Supreme Court’s prior decisions, Dr. Rutherford’s ConnectSpace post
addresses matters of public concern because it challenges the public health policies driving the
administration of vaccines to children. Rankin, 483 U.S. at 387 citing Bond v. Floyd 385 U.S.
116, 136 (1966) (holding that “statements criticizing public policy and the implementation of it
must be…protected.”). Similar to the employee in Rankin whose hyperbolic criticisms of the
president were considered matters of public concern because they address government policies,
Dr. Rutherford’s ConnectSpace post raises important questions regarding the government’s
36
policy of vaccinating children without evaluating the full consequences of the injections. He
questions the incentives created by paying HUGH more tax dollars for each injection which he
speculates may encourage the hospital to inject children without confirming their safety. Such
concerns between vaccinations and autism are not new to the medical and scientific community.
For years, scientists, doctors, and policy makers have speculated about the causal link between
autism and vaccinations.3 Although many studies have rejected the possibility of this causal link,
there are still citizens and doctors who believe further study is warranted to confirm that the
vaccinations do not cause autism.4 This concern goes to the heart of public health policy,
particularly the use of America’s tax dollars to implement particular health initiatives. As speech
discussing the role of tax dollars to advance a particular health policy, Dr. Rutherford’s speech
falls directly within the category of speech regarding matters of public concern.
Furthermore, Dr. Rutherford’s use of personal anecdote in his post did not diminish the
value of his statements. Contrary to the District Court’s characterization of Dr. Rutherford’s post
as a personal statement “with a pinch” of anti-vaccination remarks, Dr. Rutherford’s description
of his personal experiences supports the value of the speech. His references to his grandson and
the family’s experiences with autism and vaccinations serve as a context for his larger concerns
regarding public health. His statements are not expressions of dissatisfaction with employment or
purely personal events, but poignant examples of his greater concerns for public health and child
vaccinations.
3 Am. Acad. of Pediatrics, Vaccine Safety: Examine the Evidence – Studies about General Safety and Number of
Vaccines, AM. ACAD. OF PEDIATRICS, http://www2.aap.org/immunization/families/faq/vaccinestudies.pdf (last
updated April 2013). 4 Martin Downs, MPH, Autism-Vaccine Link: Evidence Doesn't Dispel Doubts, WEBMD (March 31, 2008),
http://www.webmd.com/brain/autism/searching-for-answers/vaccines-autism
37
Because Dr. Rutherford’s statements directly challenge public health policies that are
integral to the health of the community’s children and his personal experiences highlight his
concerns regarding the government’s public health policy, Dr. Rutherford’s ConnectSpace post
addresses matters of public concern and must be protected.
B. Dr. Rutherford’s speech through social media has equal First
Amendment value as other forms of speech.
Dr. Rutherford’s statements on ConnectSpace, a social media website, have equal First
Amendment value as expressions made through other, more traditional mediums. See Reno v.
A.C.L.U., 521 U.S. 55 (1997); Ashcroft v. A.C.L.U., 535 U.S. 564 (2002). In Reno and Ashcroft,
the Supreme Court refused to diminish the level of First Amendment scrutiny that applies to
Internet communications. Id. The Court recognized that the internet was a dynamic and
multifaceted forum of communication where “any person with a phone line can become a town
crier with a voice that resonates father than it could from any soapbox.” Reno, 521 U.S. at 870.
As an important facilitator of information, the First Amendment provides the same protection it
does to traditional forms of communication. Id. at 852, 870.
Contrary to the District Court’s characterization of ConnectSpace as an electronic
personal journal that does not warrant First Amendment protection, Dr. Rutherford’s
ConnectSpace posting falls within the well-established protection for Internet speech to the
public as recognized by the Supreme Court. See Ashcroft, 535 U.S. at 566 (the Supreme Court
holding that the Internet is a “forum for a true diversity of political discourse, unique
opportunities for cultural development, and myriad avenues for intellectual activity.”) Simply
because the speech occurs on a blog does not diminish the public importance of the speech. E-
mails, blogs, and websites are all valid ways to communicate and spread diverse human thought.
Dr. Rutherford’s statements were made to the public on a matter of public concern, through a
38
medium that the First Amendment protects. The availability of other mediums does not diminish
the value of speech and therefore, requires the same First Amendment protections that the Court
would afford speech in other mediums.
C. Speech on matters of public concern does not lose its value because it is
stated in a private blog available to a set group of individuals.
Finally, Dr. Rutherford’s speech still addresses matters of public concern even though it
was directed towards a set group of friends and acquaintances. In Givhan v. Western Line
Consolidated School Dist., the Supreme Court held employees do not forfeit their constitutional
rights if they decide to express their views privately rather than publicly. 439 U.S. 410 (1979). In
this case, the employee, a junior high English teacher, had concerns regarding a de-segregation
action entered by the United States District Court for Northern Mississippi. Instead of expressing
her concerns directly to the public, the employee arranged a private meeting with her principal.
Id. at 411-12. In a unanimous decision, the Supreme Court upheld that the private expression was
still afforded First Amendment protection. Id. Essentially, the First Amendment protects public
and private expressions equally.
In this case, Dr. Rutherford was broadcasting his message to 1,011 different “friends”
that have access to his ConnectSpace. Although it is labeled as a private blog, it is still available
to his “friends” and the wider public if distributed by those “friends” via e-mail, text, or other
social media. This is shown by Dr. Glower receipt of the post from three different people
although he was not a “friend” of Dr. Rutherford’s ConnectSpace. Contrary to the employee in
Givhan where the Supreme Court found that one-on-one private conversations still warranted
First Amendment protections as statements addressing matters of public concern, Dr.
39
Rutherford’s statements were sent to a much larger audience, in a fashion regularly permitted the
highest First Amendment protection. 5
Because Dr. Rutherford’s statements addressed matters of government policy in public
health and he made his statements through protected mediums of speech, Dr. Rutherford’s
ConnectSpace post addressed matters of public concern and must be protected.
3. DR. RUTHERFORD’S INTEREST AS A PRIVATE CITIZEN IN COMMENTING
ON ISSUES OF PUBLIC HEALTH DOES NOT INTERFERE WITH HUGH’S
INTEREST IN PROVIDING MEDICAL CARE TO THE PUBLIC.
Because Dr. Rutherford’s statement deserves First Amendment protection, the second
prong of the Pickering-Connick test requires that the Court balance Dr. Rutherford’s interest, as a
private citizen, in commenting on matters of public concern, against the State’s interest, as an
employer, in efficiently providing services to the public through its employees. Pickering, 391
U.S. at 568. The Court considers the “manner, time, and place of the employee’s
expression…[and] the context in which the dispute arose.” Rankin, 483 U.S. at 388. In analyzing
the employee’s expression and the context of the dispute, the Supreme Court has looked at
“whether the statement impairs discipline by superiors or harmony among co-workers, has a
detrimental impact on a close working relationship for which personal loyalty and confidence are
necessary, or impedes the performance o the speaker’s duties or interferes with the regular
operation of the enterprise.” Id.
When the employee has an interest in speaking on the public matter, the government has
the burden to justify the discharge on legitimate grounds. Rankin It is insufficient for an
employer to dismiss an employee simply because the speech is critical of the employer.
Pickering, 391 U.S. at 570. (“[T]o the extent that the Board’s position here can be taken to
5 are more akin to political editorials in newspapers such as those referenced by the District
Court that warrant the highest rung of protection.5
40
suggest that even comments on matters of public concern that are substantially correct…may
furnish grounds for dismissal if they are sufficiently critical in tone, we unequivocally reject it.”).
A. Rutherford’s speech as private citizen with professional insight has
significant valuable to society’s discourse on public health.
In Pickering, the Supreme Court recognized the important role of professionals in
contributing to the public discourse on issues affecting their profession and the community. Id. In
Pickering, the Supreme Court upheld a teacher’s letter criticizing the school district, his
employer, in part because of his specialized knowledge as a teacher. Id. at 572. The Court held,
that “teachers are, as a class, the members of a community most likely to have informed and
definite opinions as to how funds allotted to the operation of the schools should be spent.” Id. As
such members with insight into the operation of the schools, “it is essential that they be able to
speak out freely on such questions without fear of retaliatory dismissal.” Id. The Court
recognized that although a professional may have a different opinion than the employer
regarding the functioning of the institution, such contrary opinions and criticisms do not per se
disrupt the employer’s ability to perform services. Id.
Similarly, as a doctor working in public health, Rutherford had a valuable insight into the
motivations and policies driving the vaccination initiative. Although he is not an expert in
vaccinations, autism, or pediatrics, his insights into the operation of public hospitals and public
health initiatives are valuable to society in evaluating medical and political decisions. Similar to
the teacher in Pickering, whose input was given greater value because of his deeper
understanding of the functioning of the school system. Rutherford’s speech on his concerns
regarding health care policy should be given greater value because of his deeper understanding
of public health policy. It is important to our society that doctors like Rutherford be able to
honestly contribute their deeper knowledge of the health system to the community without fear
41
of retaliation. Such input is essential in a democratic society to educate and inform the average
populace on government health policies without the fear that the government will dismiss or
restrain an employee for informing the community.
B. HUGH did not have a reasonable belief that Rutherford’s speech would
disrupt the work environment or obstruct the vaccination
initiatives to warrant infringing his First Amendment rights.
For an employer to infringe upon an employee’s valuable speech, the employer must
have a reasonable belief that the employee’s speech will impede the employee’s proper
performance of his duties or interfere with the operation of the employer. Pickering, 391 U.S. at
572-573; Waters v. Churchill, 511 U.S. 661, 672 (1994). An employer’s reasonable belief will
vary with the “extent of authority and public accountability the employee’s role entails.” Rankin,
483 U.S. at 390. “Where…an employee serves no confidential, policymaking or public contact
role, the danger to the agency’s successful functioning from that employee’s private speech is
minimal.” Id. at 390-91.
In Pickering, the Court denied the employer’s argument that the Board’s interest in
preventing controversy and conflict between the school district, its employees, and its residents
outweighed the teacher’s First Amendment rights when the Board did not provide evidence that
the speech would cause disruption. Id. at 567. The Board could not demonstrate that the
employee’s letter would hinder the operation of the school, hamper the teacher’s ability to do his
job, or foment controversy between the teacher and his supervisors. Id. at 570. Without factual
support, the Board could not justify infringing upon the teacher’s speech on matters of public
concern, particularly because of the importance of speech on the allocation of tax dollars in
public schools. Id.
42
In Rankin, the Court denied the employer’s argument that the State could dismiss the
employee for her the content of her speech simply because it allegedly undermined the mission
of the public employer. Id. at 389. According to the Court, the employer needed to show that the
employee’s speech would, based on the employee’s role at the office, undermine the functioning
of the office. Id. In this case, the employee was a low-level deputy clerk with little to no contact
with the public. Id. Her statement wishing for the death of the president was made to a fellow
employee and not to the public in her role as a deputy clerk. Id. Furthermore, her statement in no
way undermined the office’s ability to enforce the law. Id. The Court determined that the clerical
employee’s statement was so far removed from her responsibilities and the effective functioning
of the law enforcement agency that the employer could not justify discharging the employee for
the employee’s statement. Id.
Similar to the Board in Pickering that failed to show evidence that the employee’s letter
hindered the operation of the school, HUGH cannot provide reasonable support that Rutherford’s
ConnectSpace post will affect his work product or work relationships as a cardiologist at HUGH.
Dr. Rutherford is a cardiologist with expertise in Doda Stents. His statements about the link
between autism and vaccination have no connection to his role as a cardiologist or the
performance of his job. He does not work in pediatrics nor does he having any affiliation at work
with the “99 Percent” grant or the vaccination of children in Hanover County. Rutherford’s
position does not require him to have a strong working relationship with those working with the
“99 Percent” grant nor does his position require him to be loyal to the doctors administering the
vaccinations. Similar to the teacher in Pickering whose letter criticized the Board in which he
never worked with and whose criticism would not affect his working relationships as a teacher,
43
Rutherford works in a completely separate department with no relation to the “99 Percent” grant.
His post would not cause interference with his job or his working relationships.
Furthermore, HUGH did not have a reasonable belief to predict that Dr. Rutherford’s
statements would interfere with the vaccination initiative. As noted in Rankin, the employee’s
responsibility for the public accountability his statements is based on the employee’s role and
position at the office and the context in which the statements were made. As stated above,
Rutherford has no connection to the “99 Percent” grant nor did he portray himself as an expert in
vaccinations or representative of the hospital in connection with the vaccinations. He never tried
to use his role as a cardiologist to provide expertise on proper vaccination policy. Furthermore,
he made the statements outside of work, on a general forum unassociated with the hospital, to a
set group of “friends.” His statements were not made as a doctor of HUGH, but as a citizen
concerned with health policy based on his personal experience with autism and health care.
During his deposition, Dr. Glower claimed that he believed Dr. Rutherford’s statement could
disrupt the vaccination initiative if Rutherford’s post was passed around to parents. However, Dr.
Glower’s opinion was only speculative. His allegations are based on the assumptions that (1)
Rutherford’s post would either be forwarded to parents or he may say it again in a more public
forum; and (2) the public would associate Rutherford’s post with the hospital even though he
said it as a citizen on a personal blog. Dr. Glower has no factual basis to support his assumption
that parents, who may or may not receive Rutherford’s post, would take Dr. Rutherford’s
statements as those of the hospital and respond to these statements. Dr. Rutherford made the
statements outside of work, in the context of a personal exposition, on a non-hospital forum.
These statements have not and will not interfere with the hospital’s ability to perform it duties.
44
As demonstrated by the important public value of Rutherford’s insights into public health
compared to HUGH’s merely speculative fears that Dr. Rutherford’s statements may interfere
with another department’s health initiatives, HUGH’s dismissal of Rutherford was un-justified.
The Pickering-Connick balancing requires that HUGH show a legitimate justification that Dr.
Rutherford’s speech will interfere with HUGH’s ability to perform its job. In this case, HUGH
only shows that Dr. Rutherford was critical of HUGH’s policies without evidence that the speech
will interfere with the operation of the hospital. Without such evidence, HUGH does not have a
legitimate justification to dismiss Dr. Rutherford and Dr. Rutherford’s interest in speaking on a
matter of public concern outweighs HUGH’s interest providing services.
4. DR. RUTHERFORD’S STATEMENTS WERE A SUBSTANTIAL MOTIVATING
FACTOR FOR HIS DISCHARGE AND HUGH DID NOT HAVE A
REASONABLE JUSTIFICATION FOR DISCHARGING DR. RUTHERFORD
NOTWITHSTANDING HIS CONNECTSPACE POST.
The third and final prong of the Pickering-Connick test requires that Dr. Rutherford’s
protected speech must have been a “substantial” or “motivating factor” behind HUGH’s adverse
action. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). To
determine whether speech was a motivating factor, courts look at circumstantial and direct
evidence of intent. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266
(1977). If the employee can show that the speech was a substantial or motivating factor, the
burden shifts to the employer to show, by a preponderance of the evidence, that it would have
“reached the same decision as to respondent's reemployment even in the absence of the protected
conduct.” Mt. Healthy, 429 U.S. at 287. In assessing whether the decision would have been the
same, the employer cannot rely on pretext. Id.
45
A. Dr. Rutherford’s protected post on his ConnectSpace page was a
substantial and motivating factor behind the revocation of his privileges
at HUGH.
In Mt. Healthy, the Supreme Court held that the proper test to determine whether the
employer violated the employee’s First Amendment rights was whether the employer’s decision
not to rehire the employee was substantially based on protected speech without reason to dismiss
the employee otherwise. 429 U.S. at 287. In this case, the employee, Doyle, was not rehired after
working as a non-tenured teacher for five years. Id. at 274. After receiving a memorandum from
the school principal related to the teacher’s dress and appearance, Doyle called a local radio
station and disclosed the substance of the memorandum on air. Id. Doyle was involved in a
number of other troublesome incidents where he engaged in an argument with a fellow teacher
that resulted in Doyle getting slapped, got into an argument with cafeteria personnel, used
inappropriate language, and made an obscene gesture to two female students. Id. After the radio
incident, the School Board “advised [Doyle] that he would not be rehired and cited his lack of
tact in handling professional matters, with specific mention of the radio station and obscene-
gesture incidents.” Id.
In this case, Dr. Rutherford’s protected ConnectSpace post was a substantial and
motivating factor in HUGH’s decision to revoke Dr. Rutherford’s privileges and remove him
from Active Staff. Dr. Rutherford had been an esteemed cardiac surgeon who held privileges at
HUGH for 26 years. No disciplinary action was taken against until after Dr. Rutherford posted
on June 11, 2012 about the autism-vaccine connection. The post prompted conversations
between Drs. Polishov and Glower where they expressed concern about the post, stating that Dr.
Rutherford’s personal experience was unfortunate but did not give him “the right to badmouth
46
[Dr. Polishov’s vaccine] program.” Later that week, Dr. Polishov initiated a request for
corrective action.
Unlike the school board in Mt. Healthy, the HUGH Committee did not explicitly mention
the ConnectSpace controversy as a motivating factor for their decision to take adverse action.
However, Dr. Glower’s admitted that he was concerned that Dr. Rutherford’s post would disrupt
the initiative of HUGH’s benchmark vaccination rate required for the “99 Percent” grant.
Although Dr. Rutherford had no history of issues at the hospital, Drs. Glower and Polishov
initiated proceedings against him, for no stated cause, within weeks of his post. Further, when he
was evaluated, the Committee did not provide any evidence to conclude that Dr. Rutherford had
allegedly “unacceptably high rates of morbidity and post-operative complications”, “[failed] to
meet the Hanover University General Hospital standard of care”, and engaged in “conduct that
impede[d] quality patient care.” The questionable nature of the decision is emphasized by the
fact that the HUGH Board of Trustees quickly revoked the Committee’s decision. The timing of
the disciplinary action combined with the unsupported findings demonstrates that the Committee
had no cause to dismiss Dr. Rutherford except his ConnectSpace post. Therefore, Dr.
Rutherford’s post was a motivating factor behind the adverse action and warrant’s First
Amendment protection.
B. HUGH could not have reached the same decision to dismiss Dr.
Rutherford notwithstanding is harmless ConnectSpace post.
Once it has been determined that protected speech was a substantial or motivating factor
in an adverse action, the court must then consider whether an employer would have made the
same decision absent consideration of the protected speech. Mt. Healthy, 429 U.S. at 287. This
places the burden on the employer to show, by a preponderance of evidence, that the outcome
would have been the same. Id.
47
As mentioned in Mt. Healthy, the School Board cited a number of behaviors for which
disciplinary action against Doyle was warranted. While his on-air statements may have been
protected speech, his obscene gestures and pattern of altercations could have led the School
Board to likewise hold that Doyle had “a notable lack of tact in handling professional matters
which leaves much doubt as to [his] sincerity in establishing good school relationships.” Mt.
Healthy, 429 U.S. at 282.
In contrast, in Harden v. Adams, the 11th
Circuit Court of Appeals refused to award an
employer summary judgment when there was a conflict in evidence whether the employer had
sufficient support to terminate the public employee. 760 F.2d 1158, 1161 (11th Cir. 1985). In this
case, a public university terminated a tenured faculty member after administrators received a
complaint about derogatory comments he had made about a university chairman. Id. In the
termination, administrators cited twenty grounds supporting the termination, including the
statements made about the university chairman. Id. As in Mt. Healthy, the court held that
“reliance on impermissible factors does not, in and of itself, render a termination decision
unconstitutional, if there were other, permissible reasons for the termination which were
sufficient to support the decision.” Id. at 1165. However, in this case, the court determined that
summary judgment should not have been granted to the individually named administrators
because there was a question as to whether the non-protected reasons were sufficient to support
the decision to terminate Harden. Id. at 1156-66. Specifically, the court was concerned with the
intimate level of involvement of three administrators in the communication and investigation of
complaints concerning Harden, making it more likely that impermissible factors played a key
role in the decision to terminate Harden. Id. at 1166.
48
Unlike the School Board in Mt. Healthy, the HUGH Committee could not show, by a
preponderance of evidence, that Dr. Rutherford would have been fired on non-protected speech
grounds. In addition to omitting specific facts that warranted disciplinary action in their July 1
determination letter, the Committee stated that they investigated incidents whose mitigating
circumstances would have exonerated Dr. Rutherford. The Committee stated that Dr. Rutherford
was dismissed, in part, because he had unacceptably high rates of morbidity and post-operative
complications between 2006-2012. However, Dr. Rutherford demonstrated that in his given area
of practice and expertise, his patients tended to be among the most physically vulnerable at the
time of admission. Given the baseline health of these patients, Dr. Rutherford’s record was
extraordinarily good. Additionally, the Committee evaluated infection rates that included a four-
month period when the Hospital’s HVAC system was malfunctioning and piping sewer exhaust
into recovery rooms, during which time there was an overall spike in patient infections. Lastly,
Dr. Rutherford never received any citations for violating hospital rules or bylaws. The only time
a hospital administrator confronted Dr. Rutherford concerning his quality of care was when Drs.
Glower and Polishov instigated the review committee immediately after his ConnectSpace post
without a stated cause. These mitigating factors show that Dr. Rutherford in fact provided high
quality care and HUGH did not have a reasonable basis to dismiss Dr. Rutherford. The only true
justification for Dr. Rutherford’s dismissal was his ConnectSpace post.
The justifications cited by the HUGH Committee are like the justifications for
termination cited by the administrators in Harden because absent the protected speech, they were
nsufficient to support a recommendation for termination. The July 1 letter does not cite specific
facts that led to the revocation and termination, indicating that there may be a lack of support.
Additionally, the HUGH Committee is more like the administrators in Harden because the
49
Committee was comprised of members who were intimately involved with the communication
and investigation of the ConnectSpace post. This level of involvement shows that HUGH relied
on impermissible factors. Dr. Glower discovered the ConnectSpace post and was immediately
concerned at the effect it might have. HUGH’s claims that Dr. Rutherford failed to meet
HUGH’s “standard of care” and “conduct that impedes quality patient care” were merely pre-
textual reasons for the underlying purpose of the disciplinary action – the protected post. As in
Harden, the court should deny the petitioners request for summary judgment.
CONCLUSION
Respondent respectfully request the Supreme Court to affirm the 12th
Circuit Court of
Appeals and remand the case to the district court for trial because Respondent Thomas L.
Rutherford, MD, has shown (1) that a reasonable jury could find that he has shown by a
preponderance of evidence that HUGH Hospital failed to satisfy the requirements for immunity
under the Healthcare Quality Improvement Act, 42 U.S.C. § 11112(a); and (2) that HUGH
suspended his privileges at the hospital due to the content of his ConnectSpace post in violation
of his First Amendment Rights.
