Summers v. Ardent Health Services, L.L.C. and Lovelace Health System, Inc. (Full Text)

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: January 11, 2010

NO. 28,605

WILLIAM K. SUMMERS, M.D.,

Plaintiff-Appellee,

ARDENT HEALTH SERVICES, L.L.C. and
LOVELACE HEALTH SYSTEM, INC.,

Defendants-Appellants.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Nan G. Nash, District Judge

Butt Thornton & Baehr PC
Emily A. Franke
Neil R. Blake
Alfred L. Green, Jr.
Albuquerque, NM

for Appellee

Rodey, Dickason, Sloan, Akin & Robb, P.A.
Jocelyn C. Drennan
Edward Ricco
Albuquerque, NM

for Appellants

BUSTAMANTE, Judge.

OPINION

{1}

Plaintiff William K. Summers, M.D. (Dr. Summers) brought suit for damages

against Defendants Ardent Health Services, L.L.C. and Lovelace Health System, Inc.

(Defendants) after his medical privileges were suspended. Relying on a specific

section of the Health Care Quality Improvement Act of 1986 (HCQIA), 42 U.S.C. §

11112 (1986), Defendants requested summary judgment arguing they were immune

because the professional review process leading to the suspension was reasonably

conducted. The district court denied summary judgment finding that a question

existed as to the reasonableness of the efforts taken by Defendants to obtain certain

facts relevant to the professional review action. Concluding that summary judgment

was properly denied, we affirm the decision of the district court .

BACKGROUND

{2}

Dr. Summers held privileges to practice psychiatric and internal medicine

within the Lovelace Sandia Health System. In 2005 Dr. Summers’ medical privileges

were permanently suspended based on findings of a “pattern of using inappropriate

sexually explicit language with . . . patients [that] could result in imminent danger .

. . whether they were seen or treated by Dr. Summers for psychiatric or internal

medicine issues.” Although there were several allegations of questionable medical

treatments or decisions made by Dr. Summers over the course of two investigations,

his ultimate suspension was based on separate incidents involving two female patients

(Patient A and Patient B).

{3}

The first professional review of Dr. Summers’ practices was initiated in 2002

in response to a letter written by Patient A alleging improper conduct on the part of

Dr. Summers. Patient A wrote that Dr. Summers recommended she experiment with

drugs and sex, and that Dr. Summers used explicit language including “the ‘F’ word

at least [fifteen] to [twenty] times.” Dr. Summers later explained that his approach

with Patient A was to try and break through her defense mechanisms by shocking her

into addressing her feelings and behaviors. A Medical Executive Committee (MEC)

convened an ad hoc peer review committee to investigate this incident and ultimately

ordered that Dr. Summers stop using this approach, that he begin thoroughly

documenting his interaction with patients, and that his patient interactions be

monitored for six months.

{4}

In 2003 the MEC convened a second investigation of Dr. Summers prompted

by sexual comments assertedly made to another female patient, Patient B, who Dr.

Summers had seen as a psychiatric consultation. After Patient B was discharged, a

case manager called to check on Patient B and became concerned. The case manager

noted that Patient B felt she was released from the hospital prematurely and was

feeling suicidal. The case manager’s notes reflect that Patient B began crying during

the course of their phone conversation and was afraid to return to the emergency room

because she did not want to encounter Dr. Summers, who she alleged had asked her

inappropriate sexual questions during the consultation. Dr. Summers’ notes confirm

that he took a sexual history of Patient B, but stated that Patient B had taken his

questions out of context.

{5}

The MEC reviewed the report regarding Patient B with the understanding that

Dr. Summers was expected to carefully document his decision making and to refrain

from the type of therapy approach used with Patient A. Based on these incidents and

other issues related to his internal medicine practice, the MEC unanimously voted to

suspend Dr. Summers’ internal medicine privileges and to restrict his psychiatric

privileges. Dr. Summers exercised his rights of appeal within the Lovelace Sandia

Health System administrative process by first appealing to a Professional Review

Committee and finally to an Appellate Review Committee.

{6}

The Professional Review Committee (PRC) consisted of a panel of five

physicians, none of whom was in direct economic competition with Dr. Summers. The

PRC had access to the peer review records relating to the Patient A and Patient B

incidents, as well as eleven other patient charts. Four of the doctors who participated

in the second investigation of Dr. Summers were called as witnesses, and each was

subject to cross-examination. Their testimony revealed that during their investigation

they had not spoken to Patient B, the case manager who documented Patient B’s

allegations, or Dr. Summers himself. Dr. Summers testified on his own behalf but did

not call any additional witnesses. Dr. Summers did, however, challenge the veracity

of Patient B’s statements as taken down by the case manager. After the hearing, the

PRC recommended that the suspension of Dr. Summers’ medical privileges be upheld

and that his psychiatric privileges also be suspended. The PRC’s decision was based

primarily on the Patient A and Patient B incidents, but its original findings noted

several other issues relating to Dr. Summers’ internal medicine practice.

{7}

Dr. Summers appealed the decision of the PRC to a three-member Appellate

Review Committee (ARC) comprised of chief executive officers within the Lovelace

Sandia Health System. The ARC did not consider any new facts or allegations and

reviewed the findings and conclusions of the PRC only to determine whether they

were supported by evidence and not otherwise arbitrary or capricious. Before reaching

its final decision, the ARC referred the matter back to the PRC for additional findings

of fact. After receiving such additional findings, the ARC upheld Dr. Summers’

suspension. The ARC’s findings and recommendations did not address any of the

internal medicine issues addressed in the prior proceedings, and its recommendation

to uphold the suspension was based primarily on “what appear[ed] to be a pattern of

inappropriate use of sexually explicit language during interactions with patients.” In

support of this conclusion, the ARC cited only the evidence relating to Patient A and

Patient B.

{8}

Dr. Summers subsequently brought suit against Defendants in district court

claiming defamation, breach of contract, prima facie tort, and tortious interference

with prospective contracts. Defendants moved for summary judgment asserting that

the HCQIA provided a complete defense of immunity to the action. The district court

denied Defendants’ motion for summary judgment finding that “[a] genuine issue of

material fact exists regarding the reasonableness of the efforts taken by Defendant[s]

to obtain the facts of the matter during the professional review action[]” and that

“[t]his issue of fact prohibits . . . Summary Judgment on immunity grounds.”

{9}

Generally, in an ordinary lawsuit, a denial of summary judgment is not a final

appealable order. Doe v. Leach, 1999-NMCA-117, ¶ 12, 128 N.M. 28, 988 P.2d 1252.

However, our Court granted an interlocutory appeal because a defendant who is not

liable because of an immunity is entitled to more than avoidance of an adverse

judgment. Id. Such a defendant is entitled to avoid the litigation itself. Id.

DISCUSSION

{10}

“HCQIA immunity is a question of law for the court to decide and may be

resolved whenever the record in a particular case becomes sufficiently developed.”

Bryan v. James E. Holmes Reg’l Med. Ctr., 33 F.3d 1318, 1332 (11th Cir. 1994). We

apply a de novo standard of review to questions of law. Davis v. Devon Energy Corp.,

2009-NMSC-048, ¶ 12, 147 N.M. 157, 218 P.3d 75. The HCQIA creates a reable

presumption in favor of immunity, and Dr. Summers has the burden of proving by a

preponderance of the evidence that Defendant’s actions were outside the scope of

immunity. § 11112(a); N. Colo. Med. Ctr. v. Nicholas, 27 P.3d 828, 838 (2001) (en

banc).

{11}

In order to qualify for HCQIA immunity, a professional review action must

have been 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 the facts and after
meeting the requirement of paragraph (3).

42 U.S.C. § 11112(a). Dr. Summers argues that summary judgment was improper as

to each of these elements. However, the district court limited its denial of summary

judgment to the second element only. Accordingly, our review is limited to whether

Dr. Summers provided sufficient evidence to permit a jury to find that he had

overcome, by a preponderance of the evidence, the presumption that Defendants acted

“after a reasonable effort to obtain the facts of the matter.” § 11112(a)(2); Bryan, 33

F.3d at 1333. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986) (stating

that “the determination of whether a given factual dispute requires submission to a

jury must be guided by the substantive evidentiary standards that apply to the case”).

The reasonableness of the fact finding efforts is measured by an objective standard

rather than a subjective, “good faith” standard. Nicholas, 27 P.3d at 838.

{12} Defendants argue that the district court improperly denied summary judgment

because it misapprehended and misapplied the immunity standard under the HCQIA.

Specifically, they argue that the district court failed to consider the totality of the

process leading up to Dr. Summers’ suspension, and instead focused too narrowly on

the facts relating to Patient B. See Mathews v. Lancaster Gen. Hosp., 87 F.3d 624,

637 (3rd Cir. 1996) (stating that “[t]he relevant inquiry . . . is whether the totality of

the process leading up to the [b]oard’s professional review action . . . evidenced a

reasonable effort to obtain the facts” (internal quotation marks omitted)). Defendants

also argue that, as a matter of law, it was reasonable for Defendants to rely on the case

manager’s notes relaying Patient B’s allegations in that Dr. Summers was given a full

opportunity to rebut the allegations during the administrative process. See Rooney v.

Med. Ctr. Hosp. of Chillicothe, Ohio, No. C2-91-1100, 1994 WL 854372, at *4 (S.D.

Ohio Mar. 30, 1994) (mem.) (holding that a hospital properly relied on incident

reports that were “unsigned and unsworn” where the plaintiffs did not present any

authority establishing that “a ‘reasonable effort’ to obtain facts requires sworn

testimony”). Finally, Defendants argue that the district court improperly re-weighed

the evidence considered by the peer reviewers. See Bryan, 33 F.3d at 1337 (stating

that the intent of the HCQIA was to reinforce the court’s traditional reluctance toward

re-weighing the facts considered by peer reviewers). We are unconvinced.

{13}

In its initial stages, the peer review action relating to Dr. Summers’ internal

medicine practice included several allegations other than his interaction with Patients

A and B. However, the ultimate suspension of both his internal medicine and

psychiatric privileges was affirmed because of the incidents involving Patients A and

B. Specifically, the ARC found that Dr. Summers’ psychiatry and internal medicine

practices could not be reviewed in isolation of one another, “but had to be considered

together.” It also found that “concerns regarding Dr. Summers’ internal medicine

practice . . . did not, in and of themselves, rise to the level of warranting a suspension

of his internal medicine privileges,” but that “[t]aken in combination with his pattern

in his psychiatric practice . . . he places his female patients at risk of imminent harm

in his internal medicine practice as well,” and that “the issues regarding Dr. Summers’

interaction with his female patients create a reasonable basis to support suspension of

all privileges.” Thus, while the ARC’s statement that the apparent “pattern of

inappropriate use of sexually explicit language during interactions with patients” was

a “primary basis” for its decision—implying that there were other, although not

primary bases—it is clear that the suspension ultimately hinged on these two specific

incidents.

{14} Dr. Summers admitted the allegations of Patient A, but called into question the

reasonableness of the fact finding efforts relating to Patient B based on articulable

concerns: that her allegation is based on notes taken by a case manager during a

phone conversation, that neither the case manager nor Patient B was ever contacted

or questioned regarding the incident, and that Dr. Summers vigorously disputed the

allegation throughout the process. Even viewing the totality of the fact finding

process, where an outcome is based on only two allegations and doubt has been

reasonably cast on the key fact giving rise to the disciplinary action, the total process

and its result can be reasonably called into question.

{15} Given that this case turned primarily on Patient B’s disputed allegation, it is

factually distinct from many of the cases relied on by Defendants finding that, as a

matter of law, the totality of the fact finding efforts were reasonable. See Brader v.

Allegheny Gen. Hosp., 167 F.3d 832, 840-41 (3rd Cir. 1999) (where the disputed piece

of evidence was only one component of an overall greater body of information

justifying the action); Bryan, 33 F.3d at 1326 (where the doctor subject to the action

had been subject to over fifty incident reports involving unprofessional or abusive

treatment) Sternberg v. Nanticoke Mem’l Hosp., Inc., No. CIV.A.07C-10-011 (THG),

2009 WL 3152824, at *16 (Del. Super. Ct. Sept. 18, 2009) (unpublished opinion)

(where the incident leading to adverse action was so well known that it created a

“shock wave” through the hospital), corrected and superseded by No. CIV.A.07C-10-

011 (TGH), 2009 WL 3531791 (Del. Super. Ct. Sept. 18, 2009); Goodwich v. Sinai

Hosp. of Baltimore, Inc., 653 A.2d 541, 546 (Md. Ct. Spec. App. 1995) (where several

concerns formed the basis for the action).

{16} Under some other set of facts, it may have been reasonable to rely as a matter

of law on the case manager’s handwritten notes, but here the record reflects some

question, even from the investigator’s perspective, as to the accuracy of Patient B’s

allegations. For example, during the PRC hearing, Dr. Thaler’s testimony was that

“if [Dr. Summers] said those things [to Patient B], they were not within standard

practice, they [were] not appropriate language to use with a patient . . .” (emphasis

added). Dr. Summers also consistently disputed Patient B’s allegations. These facts

raise a question as to the reasonableness of the peer reviewers’ efforts to find and

verify the facts supporting their action.

{17}

In coming to this conclusion, we do not re-weigh the evidence with respect to

whether, if true, it is of sufficient weight to justify the suspension. We agree that such

an inquiry is not within the purview of this Court under the HCQIA. See Bryan, 33

F.3d at 1337. Instead, our conclusion is based on the facts in the record indicating that

ultimately, Dr. Summers’ suspension hinged on Patient B’s allegations, and that a

reasonable jury, viewing these facts in the best light for Dr. Summers, could conclude

by a preponderance of the evidence that Defendants were unreasonable in their fact

finding efforts. See id. at 1333.

CONCLUSION

{18}

For the foregoing reasons, we affirm the district court’s denial of summary

judgment and remand for further proceedings consistent with this opinion.

{19}

IT IS SO ORDERED.

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

JAMES J. WECHSLER, Judge

JONATHAN B. SUTIN, Judge