WINFREE, Justice.
Providence Alaska Medical Center terminated Dr. Michael Brandner's hospital privileges without notice and an opportunity to be heard after determining he had violated hospital policy by failing to report an Alaska State Medical Board order requiring him to undergo an evaluation of his fitness to practice medicine. Dr. Brandner unsuccessfully challenged this action through Providence's internal post-termination hearing and appeal procedures. Dr. Brandner then sued in superior court, seeking reinstatement and damages for, in relevant part, alleged due process violations both in the procedures used and in the substantive standard applied in his termination. The superior court ruled that Dr. Brandner's due process rights were not violated, that he was not entitled to reinstatement, and that under federal law Providence was entitled to immunity from his damages claims.
We affirm the superior court's decision concerning the substantive standard applied to terminate Dr. Brander; he therefore is not entitled to reinstatement or post-termination-hearing damages. But Dr. Brandner's due process rights were violated by the procedures Providence employed and a hearing prior to the termination of his hospital privileges; we therefore reverse the superior court's decision on the pre-termination notice and hearing claim and its decision that Providence had damages immunity from this claim, and we remand for further proceedings.
Dr. Brandner had hospital privileges as a surgeon at Providence from 1995 to 2009, when he took a medical leave of absence because of a cardiac condition. He returned to work in March 2010 and Providence reinstated his hospital privileges, excepting hand surgery. Providence also gave Dr. Brandner a six-month exemption from emergency call duties. In November 2010 Providence reinstated Dr. Brandner's hand surgery privileges after reviewing his surgical cases and finding him competent, but kept in place the emergency call exemption.
In October 2010 the Alaska State Medical Board (State Board) ordered Dr. Brandner to undergo psychiatric and medical evaluations after receiving a complaint that he had contacted someone in the Governor's office and made a threat involving a gun. The evaluations were part of the State Board's investigation into Dr. Brandner's "ability to practice medicine in a manner consistent with public safety," and he was required to complete them within 45 days. The State Board's order also stated:
Dr. Brandner timely complied with the order by undergoing a five-day evaluation in early December 2010 at the Menninger Clinic in Texas. The clinic found no evidence indicating he was unfit to practice medicine. Later
Doctors enjoying Providence hospital privileges are required to comply with policies set out in the Providence Code of Conduct and Medical Staff Bylaws. Policy MS 980-150(D) requires doctors to report to the chief of staff or the medical staff services department manager "any limitations, restrictions[,] or conditions of any sort imposed by a state board, health care entity[,] or agency with respect to the practitioner's practice ... no later than thirty (30) days after a final order has been issued." The policy states that doctors who violate this reporting requirement "will be subject to an automatic termination" of hospital privileges. Dr. Brandner did not inform Providence's chief of staff or medical staff services manager about the State Board order, nor did he disclose his December 2010 evaluation at the Menninger Clinic.
Procedures for reviewing, investigating, and resolving concerns about doctors' clinical proficiency and professional conduct are governed by Providence policy MS 980-100, referred to as the Investigation, Hearing, and Appeals Plan (Fair Hearing Plan). Under this policy the Providence Medical Staff Executive Committee (executive committee) is responsible for overseeing doctors' conduct. Concerns about a doctor's conduct are first presented to the executive committee; it then has authority to conduct peer reviews and make recommendations to the Providence Alaska Community Ministry Board (Providence Board) on granting, limiting, suspending, or terminating hospital privileges. The executive committee's recommendations generally do not by themselves affect a doctor's hospital privileges; the Providence Board receives the recommendation, considers the matter independently, and makes the ultimate decision. Some hospital policies, including the one at issue here, provide for automatic termination of hospital privileges if a doctor engages in specified conduct. An automatic termination recommendation triggers a process under MS 980-100 entitling the doctor to a hearing and an appeal. After the hearing and appeal procedures are exhausted the Providence Board's confirmation, modification, or rejection of the hearing bodies' recommendations becomes Providence's final decision.
In January 2011 the executive committee called Dr. Brandner to its monthly meeting to discuss his emergency call duties. The executive committee was concerned because Dr. Brandner had listed his name on the emergency call sign-up sheets despite not yet being authorized to resume those duties. During that meeting the executive committee was alarmed by Dr. Brandner's "disjointed" statements. The executive committee invited him to a second meeting in February to decide whether to investigate his fitness to practice medicine. At the February meeting Dr. Brandner's "rambling and confused" conduct again raised concerns that he might not be "medically fit," and the executive committee ordered him to undergo a "fitness for duty" evaluation at the Menninger Clinic.
Kim Pakney, Providence's medical staff services manager, called Dr. Brandner in March to arrange the evaluation. During this call Dr. Brandner disclosed to Pakney that he recently had been evaluated at the clinic. Pakney told Dr. Brandner that he could either undergo another evaluation or allow the executive committee to obtain the December 2010 evaluation records. Dr. Brandner chose to release his 2010 evaluation. According to Pakney's later testimony, Dr. Brandner did not mention the State Board's order during their conversation and instead indicated he had visited the clinic at his cardiac surgeon's suggestion. Dr. Brandner testified that he told Pakney he had gone to the Menninger Clinic "to pursue some things." Only when Pakney received Dr. Brandner's clinic records did she realize that he had undergone the evaluation pursuant to an order from the State Board. She immediately notified the Providence executive committee.
At its next meeting, on June 13 — without notice to or presence by Dr. Brandner — the executive committee voted to recommend termination of Dr. Brandner's hospital privileges for failure to report the State Board's order requiring him to submit to an evaluation. The executive committee determined
In a June 17 letter Providence's chief executive officer notified Dr. Brandner that the executive committee "recommended the automatic termination of [his hospital] privileges and staff membership," that he had the right to a hearing, and that the Providence Board would "not be bound by the adverse recommendation made thus far." A few days later the Providence Board affirmed the executive committee's recommendation terminating Dr. Brandner's hospital privileges. Dr. Brandner timely requested a hearing. At oral argument before us the parties confirmed that Dr. Brandner's privileges effectively were terminated June 17, before any hearing took place, and that after that date he was not allowed to practice at Providence.
In November 2011 Dr. Brandner received a one-day hearing before a three-doctor panel pursuant to Providence's Fair Hearing Plan. A former superior court judge presided as the hearing officer. Dr. Brandner was represented by an attorney, presented evidence, cross-examined Providence's witnesses, and testified on his own behalf. Providence's witnesses testified about the importance of physicians self-reporting conditions on their licenses because of the potential impact on patient care. Dr. Brandner argued that the State Board's order was not a "condition" on his license within the meaning of the Providence reporting policy. He argued instead that the order was a part of an "investigation," and stated that he did not believe the policy required reporting investigations.
The panel decided that the order did impose a "condition" on Dr. Brandner's license because "[t]he plain language of the ... [o]rder... clearly advised Dr. Brandner that the continued viability of his license was conditioned upon his timely completion of [ ] psychiatric and medical evaluations at the Menninger Clinic." The panel also found Dr. Brandner's testimony regarding his interpretation of the hospital policy "less than credible" because: (1) he testified that he attended the Menninger Clinic to "pursue some things"; (2) Pakney testified that Dr. Brandner said he attended the clinic because his cardiac surgeon had recommended it; and (3) it was undisputed that Dr. Brandner actually attended the clinic because the State Board required it.
The panel concluded that because the State Board order plainly stated Dr. Brandner's license would be suspended if he did not comply, a responsible, reasonable doctor would have reported the order or at least asked Providence for guidance on whether the order triggered Providence's self-reporting policy. It unanimously upheld the executive committee's recommendation and the Providence Board's decision terminating Dr. Brandner's hospital privileges, finding that they were "not arbitrary, capricious[,] or unsupported by substantial evidence."
Dr. Brandner timely appealed the panel's decision to the Providence Appellate Review Committee (review committee) pursuant to the Fair Hearing Plan. The review committee, comprised of five members — none of whom had participated in the earlier proceedings — convened in March 2012.
The review committee upheld the hearing panel's decision by a 4-1 vote. In its decision the review committee noted that Dr. Brandner's reading of the hospital policy regarding the scope of "condition" was "plausible" but that the review committee's role was not to substitute its judgment for that of the hearing panel or to reweigh the evidence. The review committee concluded that the hearing panel's actions complied with Providence's Fair Hearing Plan, were not arbitrary or capricious, and were supported by substantial evidence. One review committee member dissented, writing that the State Board's order was not a "final order" imposing "conditions" under Providence policy MS 980-150(D) and thus did not trigger the self-reporting
In April 2012, after considering the hearing panel's and the review committee's decisions upholding the executive committee's recommendation, the Providence Board affirmed the termination of Dr. Brandner's hospital privileges.
In June 2013 Dr. Brandner filed suit in superior court against Providence, the doctors who made up the hearing panel, and the doctors on the executive committee who testified at his hearing. Dr. Brandner alleged breach of contract, due process violations, defamation, and other contract claims. He sought both declaratory and injunctive relief restoring his hospital privileges and substantial money damages. Providence and the doctors moved for summary judgment, asserting peer review immunity under both Alaska law
Dr. Brandner's due process claims were tried without a jury. The superior court found that Dr. Brandner intentionally misled Providence by consciously hiding the State Board order that he undergo an evaluation, and that his "blatant dishonesty" and "lack of candor" raised substantial patient care issues. The court also concluded that when a hospital policy requires self-reporting a condition placed on a physician's state license, due process does not require a pre-termination hearing for failure to report in violation of that policy. Finally, the court concluded that Providence was entitled to immunity under HCQIA.
Dr. Brandner appeals, arguing that: (1) Providence's termination of his hospital privileges without pre-termination notice or hearing is a due process violation; (2) the post-hearing termination violated due process because it was based on an ambiguous policy applied arbitrarily and capriciously; and (3) Providence is not entitled to HCQIA immunity from his due process claims. Providence responds that: (1) the automatic termination of Dr. Brandner's hospital privileges is not a due process violation; (2) its hospital policy is not unduly ambiguous; and (3) under HCQIA it is immune from damages even if Dr. Brandner succeeds in his due process claims.
We review due process claims de novo, "adopting the rule of law most persuasive
Although the parties dispute what process was due at certain points in the termination process, they agree that Dr. Brandner's admitting privileges trigger some form of due process protection.
Providence argues that Dr. Brandner waived his right to a pre-termination hearing by agreeing to be bound by MS 980-150, triggering an "automatic termination" without providing for a pre-termination hearing. The right to a pre-termination hearing, Providence argues, may be waived if a sufficient post-termination grievance procedure is afforded.
Providence cites Whitaker v. Houston County Hospital Authority to support its proposition that a doctor can waive the right to a pre-termination hearing and, if waived, the automatic termination of hospital privileges would not violate the doctor's due process right.
Dr. Brandner contends that due process requires a hearing before deprivation of a constitutionally protected property interest in employment.
Providence argues that Dr. Brandner was not entitled to a pre-termination hearing because the Providence policy contains explicit language that a violation of MS 980-150(D) results in "an automatic termination" and because of "Providence's compelling interest" in ensuring patient safety and the highest quality in medical care. Providence contends that Dr. Brandner received all the process to which he was entitled because: (1) he had full and fair opportunity to make his arguments to a neutral hearing panel; (2) he had full and fair opportunity to appeal the hearing panel recommendation to a separate, neutral review committee and to the Providence Board, and both upheld the hearing panel's decision; and (3) Providence followed the policies and procedures Dr. Brandner had agreed to abide by. But Providence's procedures after terminating a doctor's privileges do not remedy its failure to provide procedures before termination.
We previously confirmed the importance of a hearing before suspending or terminating a doctor's staff privileges because summary action amounts to "a stigma of medical incompetence" affecting the doctor's ability to maintain income and reputation, both during the period between the deprivation of privileges and a hearing as well as after the hearing.
Providence contends that Dr. Brandner's deceitfulness posed a realistic or recognizable threat to patient care; when a physician is dishonest and actively conceals licensing conditions, a hospital cannot address the undisclosed problems because it "simply does not know what it does not know" and thus cannot assess whether there might be a "realistic and recognizable threat" to patient care. Providence maintains, as a patient safety matter, that physicians must comply with Providence's self-reporting policy and that failure to do so is "cause for deep concern."
It is possible, as Providence argues, that a physician's dishonesty might in some circumstances be sufficient cause for emergency termination. But here this speculative possibility — raised as a post hoc rationalization rather than a demonstrated contemporaneous concern in Dr. Brandner's case — does not rise to the level of a "realistic or recognizable threat" requiring an emergency termination of hospital privileges. We therefore disagree with the superior court and conclude that Providence violated Dr. Brandner's right to due process by terminating his hospital privileges without pre-termination notice and hearing.
Dr. Brandner further claims that his due process rights were violated because Providence policy MS 980-150(D) is vague and ambiguous, and that Providence terminated his privileges in an arbitrary and capricious manner without regard to his reasonable policy interpretation or to whether terminating his hospital privileges was commensurate with the harm caused by breaching the policy.
Although we do not interfere with hospital policy determining the medical training and experience necessary to qualify for hospital privileges, courts may determine whether a hospital has followed its own policies and whether a decision regarding hospital privileges was made in accordance with basic principles of fairness and due process of law.
The superior court concluded that Providence policy MS 980-150 is "clear enough." Dr. Brandner nonetheless contends that he found it ambiguous because its key terms could be interpreted differently by reference
Surviving a vagueness challenge requires "fair notice" of what is and what is not prohibited.
When concerns are raised about a hospital policy giving enforcing authorities excessive discretion, the policy should not be found impermissibly vague absent evidence that it has been arbitrarily applied.
Dr. Brandner also points to the superior court's consideration of his other conduct violations as evidence that MS 980-150 is ambiguous about what constitutes a "condition," arguing that the policy's fundamental ambiguity allowed it to be applied arbitrarily. Specifically, Dr. Brandner argues that it was improper for the superior court to consider the fact that he signed up for emergency call duty when he was restricted from doing so. But the superior court stated that Dr. Brandner's alleged misconduct was not the basis
In the context of due process challenges to statutes and regulations, we will not invalidate a statute for vagueness absent "a history or pattern of arbitrary enforcement."
Because Providence policy MS 980-150 was not vague or ambiguous with respect to Dr. Brandner or on its face, and because it was not applied in an arbitrary and capricious manner to Dr. Brandner or historically, we cannot conclude that Providence applying the policy in terminating Dr. Brandner's hospital privileges violated his due process rights. Dr. Brandner therefore is not entitled to reinstatement or post-termination-hearing damages.
Congress enacted HCQIA to improve the quality of health care and reduce the number of incompetent physicians.
For HCQIA to immunize Providence from damages resulting from a professional review action, the hospital must satisfy all four elements set forth in 42 U.S.C. § 11112(a), providing:
Federal courts have granted hospitals immunity under the Act when they clearly establish that "a full and fair peer review process was used" in connection with denying hospital privileges to a physician.
Dr. Brandner's rebuttal of Providence's HCQIA immunity presumption focuses on § 11112(a)(3), requiring that a professional review action be taken "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." The superior court found Providence met § 11112(a)(3)'s requirement by providing Dr. Brandner "post-suspension, but pre-termination" fair hearing. But Dr. Brandner contends Providence did not provide him "adequate notice and hearing procedures" prior to terminating his hospital privileges, and thus HCQIA immunity cannot attach to Providence's initial termination action.
Providence claims that prior to its terminating Dr. Brandner's hospital privileges he had waived his right to notice and hearing because he had agreed to be bound by hospital bylaws. But waivers cannot release a hospital from HCQIA requirements to achieve immunity. A Colorado Court of Appeals case is instructive. In Peper v. St. Mary's Hospital & Medical Center a hospital took final action adverse to a doctor without providing notice that his conduct was under review.
The facts here are similar. Providence did not provide notice and hearing to Dr. Brandner before the executive committee considered and recommended terminating his hospital privileges at its June 13, 2011 committee meeting. Although notice, a hearing, and an appeal took place after the actual June 17 termination of Dr. Brandner's privileges, these procedures are insufficient to satisfy § 11112(a)(3)'s requirement that adequate notice and hearing procedures must be afforded to the physician before the professional review action is taken. Providence could have provided some kind of notice and an opportunity for Dr. Brandner to be heard before June 17, 2011, but it did not.
Providence asserts that it nevertheless met § 11112(a)(3)'s requirements because Dr. Brandner was afforded "other procedures as are fair" under the circumstances when he received a hearing and an appeal after the termination of his privileges. But HCQIA specifies that a professional review action must be taken "after such other procedures as are fair to the physician under the circumstances."
We therefore reverse the superior court's conclusion that HCQIA immunity applies to the due process violation arising from terminating Dr. Brandner's hospital privileges without proper notice and opportunity to be heard.
We AFFIRM the superior court's termination claim decision; we REVERSE the pre-termination notice claim decision and REMAND to the superior court for further proceedings consistent with this decision.
Fabe and Maassen, Justices, not participating.
