By Beth Anne Jackson and Elizabeth Jepson, Brown & Fortunato, P.C.
On January 14, 2019, the United States Court of Appeals for the Fifth Circuit (Fifth Circuit) affirmed a federal district court in Louisiana’s dismissal of a physician’s claims that his due process rights were denied in violation of 42 U.S.C. § 1983 and the Louisiana Constitution. Although the case is from Louisiana, Texas falls within the Fifth Circuit’s jurisdiction, and the rationale behind the decision is very relevant to Texas hospitals and physicians.
The plaintiff, Dr. Bahram Zamanian (Physician) sued Jefferson Parish Hospital Service District No. 2 (Hospital District) after his admitting privileges were summarily suspended in 2013 over an incident involving a cardiac patient, a situation that the Hospital District determined presented an imminent danger to the health of patients. The Physician was afforded notice and an opportunity to be heard on multiple levels. The Medical Executive Committee (MEC), whose meeting he did not attend, and the Medical Staff Appropriateness of Care Committee both reviewed the facts and upheld the summary suspension. The Physician invoked his appeal rights, which resulted in a three-day hearing before a panel of five physicians. The Physician was represented by counsel, permitted to take depositions, and allowed to present witness testimony and evidence. The panel upheld the summary suspension. The Hospital District’s Board of Directors heard his final appeal and also upheld the summary suspension.
In its decision on the case, the district court cited multiple holdings of the Fifth Circuit in determining whether the Physician was afforded due process. First, the Fifth Circuit has expressly held that due process does not require a formal hearing prior to a summary suspension as long as adequate post-suspension remedies are afforded to the affected physician. Post-suspension remedies must include a multi-step peer review and appeal process that conforms to the hospital’s medical staff bylaws. Applying Fifth Circuit holdings to this situation, the district court rejected the Physician’s claim that his absence at the first review by the MEC violated due process: the Physician had received notice of the meeting that invited his presence, and, additionally, he was subsequently given sufficient opportunities to present his case. The district court also rejected his claim that he was a victim of bias because the members of the review boards were employees of the Hospital District. The Physician presented no reason why the proceedings were biased, and the court found no evidence of bias.
With the due process claims dismissed, the district court then proceeded with analysis of the Physician’s claims for wrongful termination and breach of contract claims under state law. The Hospital District claimed immunity from such claims under the Health Care Quality Improvement Act (HCQIA). The district court specifically found that the post-termination procedures were consistent with HCQIA, resulting in a rebuttable presumption that the Hospital District was entitled to immunity under the statute. However, due process is only one of the factors in determining whether immunity exists under HCQIA. Peer review actions must also be taken “in the reasonable belief that the action was in the furtherance of quality health care, after a reasonable effort to obtain the facts of the matter . . . and in the reasonable belief that the action was warranted by the facts known.” Because this was a motion to dismiss, and not one of summary judgment, the district court gave the Physician an opportunity to conduct additional discovery to rebut the presumption of immunity.
With the Fifth Circuit decision, the Hospital District has won on the due process claims. It is worth noting, however, that one cannot get to the analysis of due process without there first being a protectable interest. The Fifth Circuit has held that medical staff privileges in a public hospital constitute “a liberty interest subject to procedural due process safeguards” and are protected by the Fourteenth Amendment. Consequently, failure to establish and follow procedures that provide due process can give rise to liability for termination of medical staff privileges. It is also worth noting that the Physician’s wrongful termination and breach of contract claims survived the motion to dismiss, and he is tasked with rebutting the presumption of HCQIA immunity by a preponderance of the evidence. The Physician has, to date, substantively alleged only due process violations, which have failed. It is not known how he will overcome the presumption of HCQIA immunity, and that question can only be answered after additional discovery if the litigation proceeds.
With its decision, which essentially adopted the district court’s analysis wholesale, the Fifth Circuit reaffirmed that medical staff privileges constitute a right subject to due process protection. In this case, the Hospital District’s careful attention to its established and fair procedures successfully held off the Physician’s due process claims and earned it a rebuttable presumption of immunity under HCQIA. While the Physician’s state law claims for wrongful termination and breach of contract were not dismissed, he faces a formidable hurdle should he proceed with those claims.
Summary suspensions merit the immediate involvement of qualified, experienced legal counsel. Given the real and perceived effects of a report to the National Practitioner Data Bank, physicians have an enormous amount at stake, and litigation is always a possibility. Hospitals also have an enormous amount at stake. In order to limit liability in the event of litigation, it is essential that the proceedings afford due process rights to the affected physician and are untaken in good faith with the sole purpose of promoting quality health care.