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.