Tate v. University Medical Center of Southern Nevada

Concurrence by

Judge PAEZ.

ORDER

We must decide whether we have jurisdiction to review the district court’s refusal to enjoin a hospital to reinstate a surgeon when he has since lost all of his clinical privileges at the hospital.

I

James Tate, MD, is a board-certified general surgeon who was granted clinical privileges at University Medical Center (“UMC”) by the Medical & Dental Staff of University Medical Center (“Staff”). UMC and Dr. Tate then entered into a Trauma Services Agreement, by which UMC employed Dr. Tate as a surgeon on the trauma on-call schedule. In August, 2008, however, UMC removed Dr. Tate from the trauma on-call schedule after an altercation between Dr. Tate and a patient’s family.

Dr. Tate challenged that removal, pleading numerous causes of action. In particular, Dr. Tate brought a § 1983 claim, alleging that UMC, a county hospital, violated his Fourteenth Amendment due process right in his clinical privileges. The defendants moved to dismiss Dr. Tate’s suit, including the § 1983 claim. Dr. Tate opposed that motion. He also moved for a preliminary injunction reinstating him on the trauma on-call schedule on the basis of his § 1983 claim.

The district court granted the defendants’ motion to dismiss the § 1983 claim, holding that Dr. Tate failed to allege the deprivation of a property interest by defendants acting under color of state law. The district court, consequently, also denied Dr. Tate’s motion for a preliminary injunction because Dr. Tate could not show a likelihood of success on the merits after the underlying § 1983 claim was dismissed.

Dr. Tate filed an interlocutory appeal of the district court’s denial of his motion for a preliminary injunction. He also asked us to exercise pendent appellate jurisdiction over the district court’s dismissal of the § 1983 claim, on the ground that it was “inextricably intertwined” with the subject of the interlocutory appeal. Meredith v. Oregon, 321 F.3d 807, 813 (9th Cir.2003). While the appeal was pending, however, the Staff terminated all of Dr. Tate’s clinical privileges because of his failure to comply with conditions the Staff placed upon their renewal.¹ The defendants then moved to dismiss this appeal as moot. In their view, we cannot grant effective relief because Dr. Tate cannot be restored to the trauma on-call schedule now that he no longer has any clinical privileges at UMC. We agree.

II

A federal court “does not have jurisdiction to give opinions upon moot questions.” Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1123 (9th Cir.1997). A claim “is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. The basic question is whether there exists a present controversy as to which effective relief can be granted.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). A case may become moot at any stage. Di Giorgio v. Lee, 134 F.3d 971, 974 (9th Cir.1998).

In this appeal, Dr. Tate seeks reinstatement on the trauma on-call schedule at UMC, despite no longer having clinical privileges at the hospital. But Dr. Tate is ineligible to practice medicine at UMC without clinical privileges. In fact, the Trauma Services Agreement between Dr. Tate and UMC provides for its own automatic termination if Dr. Tate no longer has clinical privileges. If Dr. Tate is ineligible to practice medicine at UMC, then he cannot be reinstated on the trauma on-call schedule at the hospital.

Dr. Tate argues that we can enjoin reinstatement because removal from the trauma on-call schedule is a “de facto” suspension of his clinical privileges, which are a protected property interest for due process purposes. In Dr. Tate’s view, his case is not moot because reinstating him on the on-call schedule would restore his clinical privileges. But that is not true. An employment arrangement is distinct from clinical privileges: employment is merely one method among many of exercising clinical privileges at a hospital. E.g., Stears v. Sheridan County Mem’l Hosp. Bd. of Trs., 491 F.3d 1160, 1162-63 (10th Cir.2007). Here, Dr. Tate had only an employment agreement with the hospital to serve as the trauma on-call surgeon. After termination of that employment, he remained able to exercise his clinical privileges in other ways, until they were terminated. Because Dr. Tate’s clinical privileges are distinct from his employment arrangement, reinstating his employment does not restore his clinical privileges. We simply cannot restore Dr. Tate’s clinical privileges. The termination of Dr. Tate’s clinical privileges, therefore, prevents us from reinstating Dr. Tate on the on-call schedule, despite his argument to the contrary. Since we cannot order the reinstatement sought by Dr. Tate in his motion for a preliminary injunction, we cannot grant “effective relief’ in his appeal of the denial of that motion.

Ill

Therefore, this appeal is moot. Our jurisdiction over the district court’s dismissal of the underlying § 1983 claim was premised on pendent appellate jurisdiction over matters “inextricably intertwined” with the denial of the preliminary injunction motion. Since we do not have jurisdiction over the denial of that motion on account of mootness, we also lack jurisdiction over the district court’s dismissal of the underlying § 1983 claim.

DISMISSED. The Appellant’s motion for judicial notice is GRANTED.

1 . Dr. Tate has challenged this action in a separate lawsuit.