Camden-Clark Memorial Hospital Corporation v. Tuan Nguyen, M.D.

No. 16-0834 – Camden-Clark Memorial Hospital Corporation v. Tuan Nguyen, M.D.
FILED
LOUGHRY, Chief Justice, dissenting: November 13, 2017
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
With just a few strokes of the keyboard, the majority carelessly gutted a
long-standing and well-established holding of this Court that gave hospitals a wide berth
in granting or denying privileges or staff appointments. Nearly twenty-seven years ago,
this Court ruled without equivocation:
The decision of a private hospital to revoke, suspend,
restrict or to refuse to renew the staff appointment or clinical
privileges of a medical staff member is subject to limited
judicial review to ensure that there was substantial
compliance with the hospital’s medical staff bylaws
governing such a decision, as well as to ensure that the
medical staff bylaws afford basic notice and fair hearing
procedures, including an impartial tribunal.
Syl. Pt. 1, Mahmoodian v. United Hosp.Ctr., Inc., 185 W.Va. 59, 404 S.E.2d 750 (1991)
(emphasis added). Based on scant allegations of patient safety (which are little more than
a belated counteroffensive to a suit initiated by the hospital), the majority has seemingly
eviscerated that holding. See W. Va. Code § 16-39-1 to -7 (2016) (Patient Safety Act of
2001). The majority reasons its way through the weighty issues of this case with the
delicacy of a charging rhinoceros, failing to clarify what vestiges remain of this well-
ensconced quasi-immunity or to consider that this unwelcome intrusion into hospital
staffing issues may actually jeopardize patient safety. Accordingly, I dissent.
1
The facts in this matter are straightforward and largely undisputed. The
medical staff bylaws of Camden-Clark Memorial Hospital Corporation (“Hospital”)
require that physicians appointed to its staff be board certified in their area of practice
within five years of completing their residency training. It is undisputed that the
respondent (“Dr. Nguyen”), who was initially appointed to the Hospital’s staff in 2008 a
few months after he completed his residency, was not board certified when he applied for
re-appointment in 2013. That Dr. Nguyen fully understood the significance of this lack
of certification is clear from his letter to the Hospital, dated October 22, 2013, in which
he admitted, when requesting temporary privileges: “I take full responsibility for not
having obtained my board certification.” Given this acknowledged failure and consistent
with its by-laws, the Hospital refused to renew his staff appointment by letter dated
October 17, 2013.1 Notably, Dr. Nguyen’s employment contract with Camden-Clark
Physicians Corporation therefore terminated automatically under its own terms when his
privileges terminated at the Hospital on November 30, 2013.
Of no small moment is the fact that the denial of re-appointment and
resultant contractual termination yielded no action whatsoever on Dr. Nguyen’s part: he
1
By letter dated October 17, 2013, the Hospital acknowledged receipt of Dr.
Nguyen’s re-appointment application and informed him:
In accordance with the Medical Staff Bylaws and
Credentialing Policy, you are not eligible to apply for re-
appointment to the Medical Staff of Camden Clark Medical
Center due to your failure to obtain Board certification in
your primary area of practice at the Hospital.
2
neither appealed the decision nor initiated a civil action to assert a claim of retaliation.
Only when the Hospital filed suit against him seeking reimbursement for his tail coverage
premiums did he raise a claim of retaliation or otherwise take issue with the Hospital’s
staffing decision. While the dubious circumstances under which Dr. Nguyen finally
raised his claims of retaliation are scarcely dispositive of the issue, they demonstrate the
ease with which an aggrieved physician may circumvent the Mahmoodian ruling.
More than fifty years ago, this Court recognized that “[t]he governing
authorities of a private hospital, in the exercise of their discretion, have the absolute right
to exclude licensed physicians from its medical staff and such action is not subject to
judicial review.” Syl. Pt. 3, State ex rel. Sams v. Ohio Valley Gen. Hosp. Ass’n, 149
W.Va. 229, 140 S.E.2d 457 (1965) (emphasis added); see Hurwitz v. AHS Hosp. Corp.,
103 A.3d 285, 301 (N.J. Super. Ct. App. Div. 2014) (“The judicial power to intervene in
disputes over a physician’s clinical privileges is circumscribed.”). Thirty years later, in
Mahomoodian, this Court again recognized that judicial interference in medical staffing
decisions must be limited, explaining that
[t]he judicial reluctance to review the medical staffing
decisions of private hospitals, by way of injunction,
declaratory judgment or otherwise, reflects the general
unwillingness of courts to substitute their judgment on the
merits for the professional judgment of medical and hospital
officials with superior qualifications to make such decisions.
185 W.Va. at 65, 404 S.E.2d at 756; see also Brinton v. IHC Hosps., Inc., 973 P.2d 956,
964 (Utah 1998) (“[H]ospitals are entitled to exercise good faith medical judgment,
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which courts should not lightly question in subsequent civil suits . . . [Accordingly,] we
give deference to a hospital’s decision to decide whether medical standards of practice
have been met.”). This essentially “hands off” approach to hospital staffing decisions is
widely-held and well-established. 2
2
In Mahmoodian, we cited the following cases to illustrate that a majority of
courts limit judicial review of a private hospital’s staffing decisions to a determination of
whether there was compliance with the hospital’s bylaws:
Shulman v. Washington Hosp. Ctr., 222 F. Supp. 59, 63, 64
(D.D.C.1963); Eidelson v. Archer, 645 P.2d 171, 175 n. 13
(Alaska 1982) (citing cases from other jurisdictions);
Gaenslen v. Bd. of Dirs., 185 Cal. App. 3d 563, 568, 232
Cal. Rptr. 239, 241-42 (1985); Gianetti v. Norwalk Hosp.,
211 Conn. 51, 61-67, 557 A.2d 1249, 1254-56 (1989) (citing
cases from other jurisdictions); Adkins v. Sarah Bush Lincoln
Health Ctr., 129 Ill. 2d 497, 506-07, 509-10, 514, 136 Ill. Dec.
47, 51-52, 53, 55, 544 N.E.2d 733, 737-38, 739, 741 (1989);
Pepple v. Parkview Mem’l Hosp., Inc., 536 N.E.2d 274, 276
(Ind.1989); Porter Mem’l Hosp. v. Malak, 484 N.E.2d 54, 61
(Ind.Ct.App.1985); State ex rel. Willman v. St. Joseph Hosp.,
684 S.W.2d 408, 411, 412 (Mo.Ct.App.1984), application to
transfer denied (Mo. Feb. 26, 1985); syl. pt. 2, Gotsis v.
Lorain Cmty. Hosp., 46 Ohio App. 2d 8, 345 N.E.2d 641
(1974) (citing, in body of opinion, cases from other
jurisdictions); Miller v. Indiana Hosp., 277 Pa.Super. 370,
374-78, 380, 419 A.2d 1191, 1193-94, [185 W.Va. 65] 1196
(1980), appeal denied (Pa. Oct. 1, 1980).
Mahmoodian, 185 W.Va. at 64-65, 404 S.E.2d at 755-56 (footnote omitted). More
recently, the Supreme Court of Missouri has observed that forty-six states adhere to the
rule that the staffing decisions of private hospitals are subject to limited judicial review
which is restricted to whether the hospital’s decision conformed to its own bylaws or
regulations. See Egan v. St. Anthony’s Med. Ctr., 244 S.W.2d 169, 172 (Mo. 2008).
4
With little to no consideration of the critical need for hospitals to retain this
deferential autonomy regarding privileges and staffing, the majority has carelessly paved
a path for litigants, and the judiciary, to invade the decision-making process previously
reserved to those with expertise in matters of medical staffing and privileges. By simply
phrasing a challenge to a staff appointment as “retaliatory” or “discriminatory,” a
physician may now evade the construct established in Mahmoodian of limited judicial
review. To illustrate, as in this case, a physician denied re-appointment need only
articulate a suggestion rooted in patient safety or a health care-related complaint and then
allege that the privileges denial violates the Patient Safety Act of 2001. The ease with
which a physician can conjure such assertions, and thereby effectively circumvent the
limited review of staffing decisions, is troubling. Yet the majority, in its analysis, wholly
fails to address the need to strike a balance between purported policy concerns of patient
safety and this type of potential gamesmanship.
These considerations aside, the majority’s errant holding also fails to
acknowledge that the existing judicial review available under Mahmoodian is more than
sufficient to guard against retaliation or discrimination. While maintaining that judicial
review of a hospital’s staffing decisions must be narrow in scope, this Court recognized
the appropriate framework in which to address improperly-motivated staff decisions. In
Mahmoodian, the Court held that “there are basic, common-law procedural protections
which must be accorded a medical staff member by a private hospital in a disciplinary
proceeding.” 185 W.Va. at 65, 404 S.E.2d at 756. More to the point, the Court held that
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“[t]he decision of a private hospital revoking or otherwise affecting adversely the staff
appointment or clinical privileges of a medical staff member will be sustained when, as
an element of fair hearing procedures, there is substantial evidence supporting that
decision.” Id. at 61, 404 S.E.2d at 752, syl. pt. 4 (emphasis added). Because principles
of fundamental fairness require “substantial evidence” in support of a hospital’s staffing
decision, a judicial avenue already exists for an aggrieved physician to demonstrate bias
or discrimination without opening up the decision-making process to the “scorched earth”
processes of civil litigation. See Hurwitz, 103 A.3d at 306 (finding that permitting
discovery to proceed in privileges cases “would needlessly entangle hospitals and review
participants in depositions and other litigation activities, thereby diluting the practical
benefit of the immunity protection conferred upon them[.]”).
In short, the majority needlessly obliterates the Mahmoodian immunity in
the interest of avenging retaliation or discrimination. Where improper motivations exist,
the framework of Mahmoodian currently permits the unearthing of this type of prohibited
conduct. Cf. Pamintuan v. Nanticoke Mem’l Hosp., 192 F.3d 378, 386 (3d Cir. 1999)
(requiring challenging physician to demonstrate “weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions” in proffered reason for privileges
suspension); Kiracofe v. Reid Mem’l Hosp., 461 N.E.2d 1134, 1140-41 (Ind. Ct. App.
1984) (“The decision of a hospital concerning staff privileges is accorded great deference
and judicial intervention is limited to an assessment of whether the procedures employed
6
by the hospital are fair, whether the standards set by the hospital are reasonable, and
whether they have been applied without arbitrariness and capriciousness.”); Hurwitz, 103
A.3d at 296 (rejecting physician’s challenge to clinical privilege denial where physician
provided “no evidence, nor even a plausible indication, that defendants failed to comport
with [] norms of fairness and reasonableness”). In this case, the undisputed facts amply
demonstrate the existence of “substantial evidence” supporting the Hospital’s decision;
the hospital by-laws mandate attainment of board certification within five years of
employment—a requirement that Dr. Nguyen admits he failed to obtain.
Unlike this Court, when faced with similar attempts to camouflage staff
appointment challenges with a litany of tort claims, other courts have wisely rejected
such transparent maneuvers. “Prevailing under [a tort] theory would require judicial
review of the merits of a hospital’s staffing decisions which is strictly prohibited.” Ralph
v. St. Anthony’s Med. Ctr., 470 S.W.3d 783, 787 (2015) (internal quotations and citation
omitted); see also Pamintuan, 192 F.3d 378 (upholding dismissal of state law
discrimination claims in view of immunity); Bender v. Suburban Hosp., Inc., 758 A.2d
1090 (Md. Ct. Spec. App. 2000) (requiring hospital’s decision to be supported by only
objective reasonableness despite claims of sex discrimination); Brinton, 973 P.2d 956
(maintaining limited and deferential judicial review while addressing physician’s claims
of bias).
7
The majority casually disregards Mahmoodian with a talismanic reference
to “public policy” without citing so much as a single case where a court has extinguished
a hospital’s immunity for privileges or staff appointments simply because the physician
alleged a common law or statutory retaliation or discrimination claim. In fact, the Fahlen
case cited by the majority expressly refused to resolve that precise issue: “The
substantive effect of [the immunity provided by the] H[ealth] C[are] Q[uality]
I[mprovement] A[ct] on section 1278.5’s whistleblower protection for hospital staff
physicians was not raised below, was not included in defendants’ petition for review, and
is beyond the scope of the issue on which we granted review.” Fahlen v. Sutter Cent.
Valley Hosps., 318 P.3d 833, 852 (Cal. 2014).
To be clear, I wholeheartedly support the patient safety goals which the
Patient Safety Act of 2001 is designed to foster. Without question, the safety of patients
and quality of care rendered by health care professionals is of critical importance to the
citizens of this state. In fact, it is the paramount importance of those goals that compeIs
this dissent. In reaching its conclusion, the majority implicitly finds that the immunity
provided to hospitals for privileges and staff appointments is at odds with those goals and
must therefore give way. As expressly recognized by the majority of states having such
immunity, limited judicial review of such decisions exists such as to “vest[] [hospitals]
with wide managerial discretion, to be used to elevate hospital standards and to better
medical care.” Hurwitz, 103 A.3d at 296 (emphasis added). As such, both the Patient
Safety Act and Mahmoodian share a common, critically important goal: patient safety
8
and quality assurance. By blithely dismissing the latter in favor of the former under the
dubious facts of this case and without fully considering the effect such holding may have
on these goals, the majority has seriously jeopardized patient safety. Sadly, the majority
does so for the negligible purpose of allowing a lone physician, who indisputably failed
to comply with the hospital by-laws, to leverage the hospital with a separation-induced
financial dispute. Accordingly, I respectfully dissent.
9