Brandner v. Providence Health & Servs. – Wash. — Nov. 2016 (Summary)

DUE PROCESS/AUTOMATIC TERMINATION/HCQIA

Brandner v. Providence Health & Servs. – Wash.
Supreme Court No. S-15933 (Alaska Nov. 25, 2016)

The Supreme Court of Alaska held that a physician whose privileges had been terminated pursuant to an “automatic termination” provision in a hospital policy was entitled to a pre-termination notice and a hearing.

The physician had come under scrutiny during 2010, when the Alaska State Medical Board received a report that he had threatened an employee in the governor’s office. The Medical Board ordered the physician to submit to psychiatric and medical evaluations in order to assess his ability to practice medicine. These evaluations confirmed that the physician was fit to practice and the investigation was resolved.

Then, in early 2011, the physician allegedly made a series of strange, “disjointed” statements at an executive committee meeting, raising concerns at the hospital over his ability to practice. When the executive committee ordered him to undergo psychiatric evaluation, he explained that he had recently had one and had been found fit to practice. The hospital reviewed the records of this evaluation and discovered the involvement of the Medical Board.

Under hospital policy, the physician was required to report any condition the Medical Board placed on his ability to practice. Failure to do so resulted in an “automatic termination” of privileges.  Accordingly, after determining that the Board’s order to submit to a psychiatric evaluation placed a condition on his ability to practice medicine, the hospital’s medical staff executive committee voted to terminate the physician’s hospital privileges because of his failure to report. The hospital’s board affirmed the termination prior to any hearing taking place. The physician was ultimately given a hearing after the termination took effect, but he was unsuccessful in his appeal. He then sued.

Reversing the course of a lower superior court, the supreme court determined that, contrary to the hospital’s contentions, the physician did not waive his due process rights by the mere fact that he agreed to abide by all hospital policies, including the policy providing for automatic termination.  Furthermore, the hospital failed to present any evidence that its actions were in response to an immediate threat to patient health or safety.  As such, the court held that the physician was entitled to a pre-termination notice and a hearing.

The court also held that the hospital did not qualify for immunity under the Health Care Quality Improvement Act (“HCQIA”) because, even if the physician had waived his right to notice and a pre-termination hearing by agreeing to be bound by the hospital bylaws, “waivers [alone] cannot release a hospital from HCQIA requirements to achieve immunity [under the statute].” The court, therefore, remanded the case to the superior court.