In this case we must determine the relevance of, and how to prove, a hospital's alleged retaliatory animus in refusing to renew a physician's privileges on the defendants' motion for summary judgment based on the Health Care Quality Improvement Act of 1986 ("HCQIA"), 42 U.S.C. §§ 11101-11152 (1994). After Harford Memorial Hospital ("Harford") declined to renew the privileges of Dr. Linda Freilich,
We shall affirm the Court of Special Appeals. Although we hold that evidence of retaliatory motive on the part of a disciplinary body is relevant when offered to rebut the presumption of HCQIA immunity, special standards must be met in order for such evidence to defeat summary judgment. Evidence of retaliation will not prevent summary judgment on HCQIA immunity unless it can permit a rational trier of fact to conclude that (1) the defendant failed to comply with the standards for immunity set forth in 42 U.S.C. § 11112(a) or (2) the action was not a "professional review action" under 42 U.S.C. § 11151(9). We explain this below as we discuss these sections of HCQIA.
Between 1982 and 1997, Petitioner Dr. Freilich practiced medicine at two hospitals in Harford County: Harford Memorial Hospital ("Harford") and Fallston General Hospital ("Fallston"). The hospitals were operated by Upper Chesapeake Health System ("Upper Chesapeake"), a nonprofit corporation.
During her time at the hospitals, Dr. Freilich was the subject of numerous complaints. Although some of the complaints addressed her competence as a physician, most of them alleged unprofessional behavior and violations of ethics rules. At least 35 complaints were filed against Dr. Freilich by doctors and members of the
Dr. Freilich argues generally that the complaints against her were made in retaliation for her legitimate reporting of substandard medical care and efforts to improve the hospitals. But she offers no evidence of retaliatory motive "in detail and with precision," as required to fend off summary judgment,
There were fewer instances, according to evidence from Dr. Freilich, in which complaints were made by persons with a retaliatory motive:
Petitioner points to nothing in the record to show that these retaliatory-based complaints served as the basis for the Board's decision.
After Fallston suspended Dr. Freilich's privileges on July 9, 1997, citing "unprofessional behavior," Harford began investigating her as well.
Incidentally, Dr. Freilich's appointment at Harford was scheduled to expire on December 31, 1998, which required her to file an application for reappointment with Upper Chesapeake. As we explain later, Dr. Freilich made several incorrect and misleading statements about her suspension at Fallston.
In response to Dr. Freilich's application, Harford's Credentials Committee proposed a "conditional one year reappointment" during which she would be monitored for professionalism and behavior issues.
During Dr. Freilich's conditional four-month reappointment, a committee of seven physicians, chaired by Dr. Barry Wohl, investigated her case. Dr. Freilich met personally with the committee and communicated with Dr. Wohl by letter several times. The committee met three times during Dr. Freilich's conditional reappointment. Ultimately, Dr. Wohl's committee recommended that Dr. Freilich be required to complete a communication course.
The MEC, however, disagreed and recommended that the Board simply deny Dr. Freilich's application for reappointment.
At Dr. Freilich's request, Upper Chesapeake convened an Ad Hoc Hearing Committee ("Hearing Committee"), consisting of four physicians and a hearing officer, to hear her objections to the Board's decision. The Hearing Committee met several times between September 30, 1999, and January 11, 2000, listening to testimony from Dr. Freilich, members of Dr. Wohl's committee, and others. On January 27, 2000, the Hearing Committee unanimously recommended
The Board met to consider the Hearing Committee's recommendation on February 8, 2000. Concluding that Dr. Freilich's behavior was not "remediable," the Board voted not to change its decision.
Harford's Appellate Review Committee convened on March 16, 2000, hearing testimony from Dr. Freilich, Dr. Margaret Vaughan on behalf of the hospital, and legal counsel for both parties. The committee consisted of three non-physicians and one physician, who served as chairman. On March 30, the committee issued a report affirming the Board's decision not to reappoint Dr. Freilich. The report indicated that the primary reason for rejecting the MEC's recommended year of privileges with monitoring was that Dr. Freilich "lacked personal insight or understanding of the fact that she has caused multiple problems, which is a prerequisite to their remediability." The Board met on April 11, 2000, and voted to affirm its decision. The four physician members of the Board abstained from this vote.
Dr. Freilich filed a complaint in the Circuit Court for Harford County, naming Upper Chesapeake, the Board, and individual members of the Board as defendants. She alleged breach of contract and misapplication of Harford's bylaws and sought damages and declaratory and injunctive relief.
Congress enacted HCQIA to encourage peer review and monitoring of physicians. See H.R.Rep. No. 99-903, at 2 (1986), reprinted in 1986 U.S.C.C.A.N. 6287, 6384 (observing that HCQIA's purpose is to "improve the quality of medical
To qualify for immunity, the disciplinary action must have been a "professional review action" that complied with the standards set forth in 42 U.S.C. § 11112(a).
42 U.S.C. § 11112(a)(1)-(4).
The burden on the issue of immunity rests with the plaintiff, as immunity is presumed unless the plaintiff rebuts it "by a preponderance of the evidence." 42 U.S.C. § 11112(a) ("A professional review action shall be presumed to have met the. . . standards necessary for [immunity]
A number of courts have observed that the presumption of immunity creates an "unusual" standard for summary judgment. As the U.S. Court of Appeals for the Eleventh Circuit observed,
Bryan, 33 F.3d at 1333; see also Gordon v. Lewistown Hosp., 423 F.3d 184, 202 (3d Cir.2005) (holding that HCQIA's "presumption of immunity creates an unusual standard for reviewing summary judgment orders, as the plaintiff bears the burden of proving that the professional review process was not reasonable and thus did not meet the standard for immunity").
We explained this standard in Goodwich:
Goodwich, 343 Md. at 207, 680 A.2d at 1078.
Dr. Freilich claims that she has rebutted the presumption of immunity by presenting evidence that Harford retaliated against her for her reports of substandard care and attempts to improve the quality of care at the hospital. In her words,
We understand her argument to be that evidence that some people might have complained about her with a retaliatory motive creates a material question of fact regarding whether the hospital's actions met the standards for immunity set forth in HCQIA.
Harford responds that a retaliatory "subjective bad faith whistleblower animus [does not] magically generate[] a material fact dispute regarding the Hospital's entitlement to HCQIA immunity." Instead, Harford asserts, immunity under HCQIA is determined by an "objective reasonableness standard" entirely unrelated to subjective motivation, retaliatory or otherwise.
Although we agree with Harford that the plaintiff bears the burden of showing a material fact dispute, we disagree with its theory that retaliatory animus by the hospital is entirely irrelevant to HCQIA immunity. As our cases indicate, the "objective reasonableness test" looks
Yet Dr. Freilich is incorrect to the extent that she argues her reports of substandard care to the hospital are sufficient, without evidence of retaliation, to rebut the presumption of immunity. Without any evidence of a connection between a professional review action and its allegedly illegitimate basis, courts cannot presume that one exists. See, e.g., Chalal v. Nw. Med. Ctr., Inc., 147 F.Supp.2d 1160, 1172 (N.D.Ala.2000) (granting summary judgment because there was "no evidence on record to suggest that the Hospital did not act `in the reasonable belief that the action was in the furtherance of quality health care[.]'" (quoting 42 U.S.C. 11112(a)(1))); Egan v. Athol Mem. Hosp., 971 F.Supp. 37, 42-43 (D.Mass.1997) (granting summary judgment because the "Plaintiff . . . presented no evidence that the professional review action . . . was motivated by anything other than a reasonable belief that it would further quality health care").
Thus, retaliatory animus is neither the panacea that Dr. Freilich believes it to be nor entirely irrelevant as Harford maintains. Instead, evidence of retaliation is simply one of several factors to be considered when determining whether, in the totality of the circumstances, the professional review action satisfied the standards for immunity set forth in HCQIA. We next address the primary cases cited by the parties.
Dr. Freilich asserts that the relevant cases stand for the proposition that "material facts in dispute regarding the reporting of substandard medical care" prevent summary judgment on HCQIA immunity. The two cases upon which she principally relies, however, support our interpretation, not hers. See Clark v. Columbia/HCA Info. Servs., Inc., 117 Nev. 468, 25 P.3d 215 (2001); Ritten v. Lapeer Reg'l Med. Ctr., 611 F.Supp.2d 696, 720 (E.D.Mich. 2009). Clark held that to overcome the presumption of immunity, the plaintiff must present evidence capable of showing "by a preponderance of the evidence that the [professional review action] was not based on a reasonable belief that it was in furtherance of quality health care." Clark, 25 P.3d at 222. Clark did not hold that a physician's reporting of substandard medical care, without more, staves off summary judgment against her on the immunity issue. Id.
In Clark, the plaintiff presented evidence showing that "the reason for his dismissal was his apparently good faith reporting of perceived improper hospital conduct to the appropriate outside agencies, or whistleblowing." Id. Indeed, in Clark, "the only findings the board made in support of its decision [were] related to Clark's external reporting." Id. at 223. Such direct evidence of retaliation could certainly have led a rational trier of fact to conclude that the hospital's action was not
Here, on the other hand, there is no evidence that the Board's decision was based on impermissible factors. Dr. Freilich has produced evidence that some doctors and nurses may have filed sham complaints against her because of her reporting, but she has no evidence that those allegedly sham complaints served as the basis for the Board's decision. In this regard, we agree with the U.S. Court of Appeals for the Sixth Circuit, which held that "conclusory statements attacking individual items of evidence considered by the reviewers" cannot rebut the presumption of immunity under HCQIA. Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461, 469 (6th Cir.2003).
Dr. Freilich's other primary case, Ritten, is readily distinguishable as well. The plaintiff in Ritten had direct evidence of retaliation sufficient to permit a rational trier of fact to conclude that the hospital "did not make [its] decision `in the reasonable belief that the action was in furtherance of quality health care[.]'" Ritten, 611 F.Supp.2d at 720. As the court observed,
Id. at 716-17. Here, Dr. Freilich has no such evidence.
In short, the cases cited by Dr. Freilich do not support her argument that any evidence of retaliatory complaints is sufficient to rebut the presumption of immunity. Rather, those cases are consistent with our holding that the presumption of immunity is not rebutted unless the plaintiff produces evidence that could lead a rational trier of fact to conclude, in the totality of the circumstances, that the professional review action did not meet the four-part test for immunity set forth in HCQIA.
As we indicated earlier, we do not adopt Harford's proposed ban on retaliatory motivation evidence. Harford relies primarily on Goodwich to support its thesis that a hospital's motivation is irrelevant under HCQIA. It quotes a portion of that case in which we observed:
Goodwich, 343 Md. at 208, 680 A.2d at 1079.
Although this selective quotation lends superficial support for Harford's position, our holding in Goodwich was more nuanced. In that case, the plaintiff argued that two letters from the chairman of the Obstetrics and Gynecology Department tended to prove that the hospital dismissed him because of a fear of litigation instead of a desire to further quality health care. Id. These letters, however, were not connected to the hospital's professional review action. As we explained,
Id. The letters were not relevant because they did not bear on the professional review action in question. Indeed, the letters were written five and two years prior to Dr. Goodwich's dismissal, which took place when the review body had more and different evidence before it. Id. This explains why we held that the evidence of "subjective intent or motivation" did not bear on the "objective reasonableness of the hospital's action" in that case. Id. We do not read Goodwich as standing for the proposition that evidence of improper motives is always irrelevant under HCQIA.
Indeed, we held in Goodwich that a hospital's action is not immune unless it was "undertaken in the reasonable belief that quality health care was being furthered." Id. at 208, 680 A.2d at 1078 (quoting Imperial v. Suburban Hospital Ass'n, Inc., 37 F.3d 1026, 1030 (1994) (citing 42 U.S.C. § 11112(a))). The relevant inquiry, we said, is whether "the basis for . . . the professional review action" was reasonable. Id. at 208, 680 A.2d at 1079. No standard that looks to a person's "belief" and "basis" can exclude all evidence of improper motivation. In other words, the hospital or other entity must actually hold the belief and the basis for the belief must be reasonable. "[T]he standard is an objective one which looks to the totality of the circumstances [to determine whether] the action was objectively reasonable." Id. at 208, 680 A.2d at 1078. When retaliation was the "basis" of an action, a rational trier of fact could conclude that it was not preceded by a "reasonable effort to obtain the facts of the matter" or "undertaken in the reasonable belief" that it was "warranted by the facts" and "in furtherance of quality healthcare." See 42 U.S.C. § 11112(a)(1)-(4). In short, retaliation can be relevant to HCQIA immunity.
Another provision of the HCQIA statute also supports our conclusion above. Under § 11151(a), if the hospital's action was "primarily based on . . . any . . . matter that does not relate to the competence or professional conduct of a physician," then it is not a "professional review action" under 42 U.S.C. § 11151(9) and cannot qualify for immunity under HCQIA. 42 U.S.C. § 11111(a)(1). Therefore, actions primarily based on retaliatory animus cannot be immune, as they are "primarily based on [a] matter that does not relate to the competence or professional conduct of a physician." 42 U.S.C. § 11151(9).
The lesson we take from Goodwich and several federal cases interpreting
Such is the case here. Although Dr. Freilich has presented some evidence of retaliatory complaints by the staff, her effort to rebut the presumption of immunity fails because her "retaliatory" evidence is insufficient to permit a rational trier of fact to conclude that the hospital's refusal to renew her privileges failed to meet the standards for immunity set forth in HCQIA. This is because, although Dr. Freilich broadly alleges that all of the hospital's conduct was retaliatory, and she presents evidence that some of the staff complaints filed against her were retaliatory, she points to no evidence that retaliation had anything to do with the Board's decision to refuse her privileges. If all of the complaints made about Dr. Freilich were based on retaliation, or even if the majority of them were, we might view the case differently. But, as we said, she offered no evidence of retaliatory motive with respect to a large majority of the complaints.
Some of the complaints made about Dr. Freilich were specifically disputed by her. She disputed five complaints in a letter to Dr. Wohl, in response to his letter setting forth the complaints. She also disputed several complaints arising out of the dialysis unit in a memorandum to Dr. Nowakowski, head of Upper Chesapeake's Nephrology Division. Although we cannot confirm, from the record before us, whether the MEC ever made findings of fact as to exactly what happened with respect to these disputed complaints, such omission is not fatal to the Board's immunity because the sheer number of complaints, coming from such a variety of sources, is compelling. Dr. Freilich has not pointed to record evidence that she produced evidence tending to refute even half of these.
There is no evidence that Dr. Vaughan possessed a retaliatory motive in recounting her history of dealing with complaints against Petitioner.
A few incidents bear repeating, for they provide insight into the extent of Dr. Freilich's inability to conduct herself in a professional manner around the hospital. When a nurse suggested giving pain medication to an alcoholic with pancreatitis, Dr. Freilich allegedly said, "I want him to be miserable. He did this to himself." She also allegedly told a patient's daughter that the physicians who were treating her mother "were trying to kill her." She was alleged to breach patient confidentiality and privacy, publicly humiliate patients, and numerous other instances of what Dr. Robert Roca called "behavioral eccentricity."
As we mentioned, a highly significant incident of her unprofessional behavior relates to her lack of honesty, as revealed in her written application for reappointment at Harford. The application required her to state whether "any hospital ever suspended, diminished, revoked or failed to renew [her] privileges," and if so, to "provide a full statement of explanation." In an effort to discount her suspension from Fallston, she stated, "There were no witnesses or corroboration of any `unprofessional behavior' on my part. In fact, the only witness, a patient of mine, completely supported my testimony."
Indeed, the limited excerpts from the hearings at Fallston contained in the record show that there were at least three witnesses who testified against her. One of these was Dr. Vaughan, the senior vice-president for medical affairs, who also wrote a letter in response to Dr. Freilich's application, explaining that "a number of witnesses appeared and corroborated allegations of unprofessional behavior on [her] part." The report of Fallston's Hearing Committee additionally notes that "[t]he hearing was conducted over a three day period . . . during which extensive testimony, documentary evidence, and argument
As we have recently held, a physician's dishonesty in official applications is a serious matter for which discipline is appropriate:
Kim v. Md. State Bd. of Physicians, 423 Md. 523, 32 A.3d 30 (2011) (upholding the decision of the Maryland State Board of Physicians to fine and suspend a physician who failed to disclose on his renewal application that he had been sued for malpractice). Dr. Freilich's excuse for the misstatement about the witnesses was that she "thought witness meant something like the witnesses who sign in a will." Yet Dr. Freilich has produced nothing to show that the hearing(s) at Fallston were devoid of evidence against her.
Additionally, the transcript of the hearing before the Appellate Review Committee provides evidence that Dr. Freilich was untruthful during this phase of the investigation as well. She testified that the signatures on a petition to reinstate her were of her patients, only to admit under cross-examination that some of the signatures she obtained were of other people. She also testified that she "was never told [her] behavior was inappropriate," even though she had met numerous times with the MEC and the Hearing Committee to discuss her unprofessional behavior.
Her appellate brief paints a misleading picture of the various committees who reviewed her conduct. She states: "Despite the reappointment recommendations by 1) the Credentials Committee of UCHS' Medical Staff, 2) The Medical Executive Committee (MEC), and 3) the Ad Hoc Hearing Committee . . . each a committee of medical doctors, Appellee's lay board improperly and wrongfully terminated Appellant's HMH hospital privileges." Yet these committees did not cleanly recommend that she be reappointed. They recommended a conditional one-year reappointment during which she would receive counseling and be monitored for professionalism and behavior issues, and would have the opportunity, in the words of the Hearing Committee, "to prove her willingness to adjust her style and methods of operation to accommodate the hospital's legitimate concerns relating to her interactions with hospital staff and patients."
Dr. Freilich also scored considerably worse than her colleagues on a patient satisfaction survey. No physician had more than one patient choose "dissatisfied" or "somewhat dissatisfied" except Dr. Freilich, who had nine patients (out of 22) choose one of those options. Indeed, as we indicated earlier, the hospital received
At the very end of Harford's three-year investigation, which involved numerous hearings by various hospital committees, the Appellate Review Committee decided to uphold the decision to dismiss her because its report concluded, based on all the evidence, that her behavioral problems were "not remediable." It relied primarily on her apparent unwillingness to admit or remedy her behavior problems:
Especially telling for the committee was her unwillingness to forthrightly address her problems, even at the final stage of the review process before the Hearing Committee:
The report of the Appellate Review Committee also highlighted Dr. Freilich's lack of self-awareness, even after all the complaints against her:
It is clear that the hospital ultimately declined to renew Dr. Freilich's privileges because it concluded that she had no capacity to recognize that her conduct was unduly disruptive to hospital operations, and that one more year of monitoring her, with hopes of change, was futile. The Board legitimately perceived that Dr. Freilich was not going to remedy her disruptive behavior. There is nothing in the record to indicate that she was dismissed in retaliation for her complaints about substandard care.
Nor has Dr. Freilich presented evidence capable of showing that the Board failed to make a "reasonable effort to obtain the facts." She argues that by failing to consider her reporting of substandard care, the Board demonstrated "a deliberate ignorance of those important facts." Yet there is no indication that those facts were "important," as they did not serve as the basis for the Board's decision. The Board had plenty of evidence supporting its decision to dismiss her based solely on the non-retaliatory complaints, her application for renewal, and her testimony during the investigation and hearings.
We decline to hold that simply because a physician can point to instances where hospital personnel, such as nurses, may have filed complaints against the physician in retaliation for the physician's complaints about substandard care, which complaints are included in evidence considered by the disciplinary body, the physician's claim survives the hospital's summary judgment motion under HCQIA—no matter how bad the physician's other conduct may be. Such a holding would unfairly undermine the protections offered by HCQIA, and unduly handcuff peers and hospital administrators who must assess complicated fact situations in the course of peer review or disciplinary action. In sum, although Dr. Freilich alleges retaliation generally, she has not connected it to the Board's decision to terminate her privileges. Thus, she has not produced evidence sufficient to convince a rational trier of fact that Harford failed to satisfy the standards for immunity set forth in HCQIA. Summary judgment is warranted.
42 U.S.C. § 11111(a)(1).
42 U.S.C. § 11151(9).