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Stratienko v. Chattanooga-Hamilton County Hospital Authority

September 8, 2008

ALEXANDER A. STRATIENKO, M.D., PLAINTIFF,
v.
CHATTANOOGA-HAMILTON COUNTY HOSPITAL AUTHORITY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Chief Judge Curtis L. Collier

MEMORANDUM

Defendants Chattanooga-Hamilton County Hospital Authority and Mel Twiest, M.D. ("Twiest") ("Moving Defendants") move for summary judgment*fn1 and to dissolve the temporary retraining order ("TRO")*fn2 (Court File No. 6). In accordance with the following, the Court will DENY the Moving Defendants' motion (Court File No. 6).

I. FACTS

On September 16, 2004, there was an altercation between Plaintiff Alexander A. Stratienko ("Plaintiff") and defendant V. Stephen Monroe, Jr. ("Monroe") (Court File No. 1, Exhibit 1, p. 5). At some point before that date, Plaintiff conveyed concern to defendant Daniel F. Fisher ("Fisher") as to whether Monroe was qualified to serve on a committee which credentialed physicians to place carotid stents, as Plaintiff believed Monroe to lack sufficient experience and credentials (id.). When Monroe learned of this conversation, he confronted Plaintiff in the break room (id., p. 6). According to Plaintiff,*fn3 Monroe, who was standing in the doorway, demanded Plaintiff stop questioning his training and threatened to sue Plaintiff (id.). Plaintiff, with one hand, moved Monroe aside and excited through the now-open doorway (id.). Monroe immediately reported the incident (id.).

Based upon this altercation, a peer review was conducted and Plaintiff was suspended for thirty days (see Court File No. 50, p. 2; Court File No. 51, Exhibit B). Plaintiff filed a complaint in state court and obtained a temporary restraining order, which prevented Moving Defendant from continuing Plaintiff's suspension pending resolution of the complaint (Court File Nos. 50, p. 2; 70, Exhibit 3). That temporary restraining order lead to the preliminary injunction the Court addresses below (see supra, n.2).

II. STANDARD OF REVIEW

When a motion to dismiss pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(6) presents matters outside the pleadings, the motion must be treated as one for summary judgment. Fed. R. Civ. P. 12(d). Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party must demonstrate no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir. 2003). That is, the moving party must provide the grounds upon which it seeks summary judgment, but does not need to provide affidavits or other materials to negate the non-moving party's claims. Celotex, 477 U.S. at 323. The Court views the evidence, including all reasonable inferences, in the light most favorable to the non-movant. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat'l Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). However, the non-movant is not entitled to a trial based solely on its allegations, and must submit significant probative evidence to support its claims. Celotex, 477 U.S. at 324; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The moving party is entitled to summary judgment if the non-movant fails to make a sufficient showing on an essential element for which it bears the burden of proof. Celotex, 477 U.S. at 323. In short, if the Court concludes a fair-minded jury could not return a verdict in favor of the non-movant based on the record, the Court may enter summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).

III. ANALYSIS

Moving Defendants first seek summary judgment, arguing they are immune from damages resulting from Plaintiff's summary suspension based upon several grounds (Court File No. 8, pp. 14-41). Second, Moving Defendants move the Court to dissolve the preliminary injunction, enjoining them from executing Plaintiff's summary suspension (Court File No. 8, pp. 10-16).

A. Motion for Summary Judgment

Moving Defendants seek summary judgment, asserting they are immune from damages pursuant to the Health Care Quality Improvement Act ("HCQIA"), 42 U.S.C. §§ 11111(a)(1), 11112(a); the Tennessee Peer Review Law, Tenn. Code Ann. § 63-6-219; the Tennessee Governmental Tort Liability Act, Tenn. Code Ann. § 29-20-310(c), and The Chattanooga-Hamilton County Hospital Authority's Medical Staff Bylaws ("Bylaws") (Court File No. 8, pp. 14-41). In accordance with the discussion below, the Court will DENY Moving Defendants' motion for summary judgment (Court File No. 6).

1. Health Care Quality Improvement Act

In order to promote full and good faith professional review activities in medical facilities, Congress provides immunity from damages to professional review bodies, members, staff, and those who assist the review. See 42 U.S.C. § 11111(a)(1). However, in order to qualify for this immunity, the 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).

42 U.S.C. § 11112(a).

Here, the Court is faced with two issues: (1) was Plaintiff's summary suspension a "professional review action," as defined under the HCQIA; (2) if so, did Plaintiff's summary suspension satisfy the requirements of 42 U.S.C. § 11112(a).

a. Plaintiff's Summary Suspension is a Professional Review Action

A "professional review action" is defined as "an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician. Such term includes a formal decision of a professional review body not to take an action or make a recommendation described in the previous sentence and also includes professional review activities relating to a professional review action." 42 U.S.C. § 11151(9). "Professional review activity" includes "an activity of a health care entity with respect to an individual physician . . . (A) to determine whether the physician may have clinical privileges with respect to, or membership in, the entity . . ." § 11151(10).

Plaintiff's summary suspension affected his clinical privileges. Therefore, Moving Defendant's determination to suspend, and the summary suspension of, Plaintiff were professional review actions, and are thus regulated by the HCQIA.

b. A Reasonable Jury could Find Moving Defendants did not act Reasonably in Summarily Suspending Plaintiff

Pursuant to 42 U.S.C. § 11112(a), "[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." Thus, a plaintiff has the burden of demonstrating, by preponderance of the evidence, that the requirements of § 11112(a) have not been met in his peer review. This inquiry as to the reasonableness of a defendant's actions is an objective test; the question is whether there was a sufficient basis for the defendant's actions. "Bad faith" arguments are immaterial to this objective standard. See, e.g., Austin v. McNamara, 979 F.2d 728, 734 (9th Cir. 1992) ("this test will be satisfied if the reviewers, with ...


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