Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Brandner v. Providence Health & Services - Washington (5/19/2017) sp-7172

Brandner v. Providence Health & Services - Washington (5/19/2017) sp-7172, 394 P3d 581

           Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                        

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                          

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                      



MICHAEL  D.  BRANDNER,  M.D.,                                        )  

                                                                     )     Supreme  Court  No.  S-15933  

                                Appellant,                           )  

                                                                                                                                      

                                                                     )     Superior Court No. 3AN-13-07697 CI  

           v.                                                        )  

                                                                                                    

                                                                     )     OPINION ON REHEARING  

                                                 

PROVIDENCE HEALTH &                                                  )  

                          

SERVICES - WASHINGTON,                                                                                       

                                                                     )     No. 7172 - May 19, 2017  

                                                                     )  

                                Appellee.                            )  

                                                                     )  



                                                                                                              

                     A             

                        ppeal from the Superior Court of the State of Alaska, Third  

                                                                                                    

                     Judicial District, Anchorage, Patrick J. McKay, Judge.  



                                                                                                           

                     Appearances: Richard W. Maki and David H. Shoup, Tindall  

                                                                                                                    

                     Bennett & Shoup, P.C., Anchorage, for Appellant.  Robert J.  

                                                                                                         

                     Dickson and Peter A. Scully, Atkinson, Conway & Gagnon,  

                                                

                     Anchorage, for Appellee.  



                                                                                                                       

                     Before: Stowers, ChiefJustice, Winfree and Bolger, Justices.  

                                                                            

                      [Fabe and Maassen, Justices, not participating.]  



                                          

                     WINFREE, Justice.  



I.         INTRODUCTION  



                                                                                                           

                     Providence Alaska Medical Center terminated Dr. Michael Brandner's  



                                                                                                                               

hospital privileges without 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 undergoan evaluation of his fitness to practice medicine. Dr. Brandner unsuccessfully  


----------------------- Page 2-----------------------

                                                                                                                         

challengedthisaction through Providence's internal post-terminationhearingandappeal  



                                                                                                                             

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.  



                                                                                                                      

                    Weaffirmthesuperiorcourt's decision concerning thesubstantivestandard  



                                                                                                                           

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 because he was not given any opportunity to be  



                                                                                                                       

heard prior to the termination of his hospital privileges; we therefore reverse the superior  



                                                                                                                  

court's decision on the pre-termination hearing claim and its decision that Providence  



                                                                                                                          

had damages immunity from this claim, and we remand for further proceedings.  



                                 

II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                                                                                                                           

                    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. ProvidencealsogaveDr. Brandner asix-monthexemptionfrom  



                   

emergency call duties.  In November 2010 Providence reinstated Dr. Brandner's hand  



                                                                                                                             

surgery privileges after reviewing his surgical cases and finding himcompetent, 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  



                                                               -2-                                                        7172
  


----------------------- Page 3-----------------------

                                                                                                                    

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:  



                                                                                                 

                    Failure to comply with this order will result in the automatic  

                                                                                                  

                    suspension of [Dr. Brandner's] license to practice medicine  

                                                                                                            

                    in Alaska and it will remain suspended until such time as the  

                                                                                         

                    evaluations are completed and the results of the evaluations  

                                                                                                       

                    are reviewed  by  the  [State] Board, and  the [State] Board  

                                                                                                              

                    determines Dr. Brandner is able to practice medicine in a  

                                                                               

                    manner consistent with public safety.  



                                                                                                                                  

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 in December the State Board closed  



                                                                                                                                   

its investigation without imposing any "further investigation or disciplinary action"; it  



                                                                                    

sent Dr. Brandner confirmation of its decision in May 2011.  



                                                                                                                         

                    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 proficiencyandprofessionalconduct aregoverned by Providencepolicy  



                                                                                                                        

MS 980-100, referred to as the Investigation, Hearing, and Appeals Plan (Fair Hearing  



                                                                -3-                                                         7172
  


----------------------- Page 4-----------------------

                                                                                                                    

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 theProvidenceAlaskaCommunityMinistry  



                                                                                                                       

Board (Providence Board) on granting, limiting, suspending, or terminating hospital  



                                                                                                                    

privileges. The executivecommittee's recommendationsgenerally donotbythemselves  



                                                                                                          

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 rejectionofthehearingbodies'recommendations  



                                                          

becomes Providence's final decision.  



                                                                                                                        

                    In January 2011 theexecutivecommitteecalled 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  



                                                               -4-                                                         7172
  


----------------------- Page 5-----------------------

                                                                                                                      

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 later 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 that the order was  



                                                                                                                           

a final order imposing a condition on Dr. Brandner's license, and that his failure to report  



                                                                                                                                

the order to the chief of staff or the medical staff services department manager within 30  



                                                                                                      

days constituted a violation of Providence policy MS 980-150(D).  



                                                                                                                      

                    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 as of June 17,  



                                                                                                                                     

before any hearing took place, Dr. Brandner was not allowed to practice at Providence.  



                                                               -5-                                                         7172
  


----------------------- Page 6-----------------------

          B.        Proceedings  



                                                                                   

                     1.        Providence Fair Hearing Panel proceedings  



                                                                                                                            

                    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  



                                                                -6-                                                         7172
  


----------------------- Page 7-----------------------

unanimously upheld the executive committee's June 2011 recommendation and the  

                                                                                                                              



Providence Board's June 2011 decision terminating Dr. Brandner's hospital privileges,  

                                                                                                                   



finding  that  they  were  "not  arbitrary,  capricious[,]  or  unsupported  by  substantial  

                                                                                        



evidence."  

                  



                    2.        Providence Appellate Review Committee proceedings  

                                                                                                  



                    Dr.  Brandner  timely  appealed  the  panel's  decision  to  the  Providence  

                                                                                                                 



AppellateReviewCommittee(reviewcommittee) pursuantto theFair 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 re- 

                                                                                                                               



weigh the evidence.  The review committee concluded that the hearing panel's actions  

                                                                                                                        



compliedwith Providence'sFair Hearing Plan,werenotarbitrary or capricious,and were  

                                                                                                                            



supportedby substantial evidence. It recommendedthat theProvidenceBoard "confirm"  

                                                                                                                    



the executive committee's June 2011 recommendation that Dr. Brandner's privileges be  

                                                                                                                                



terminated.  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 requirement.  The dissent expressed  

                                                                                                                    



concern that the hospital policy was applied based in part on Dr. Brandner's fitness to  



practice and not just his failure to report the State Board order, and it noted that the  

                                                                                                                              



failure  to  self-report  alone  typically  would  not  result  in  automatic  termination  of  

                                                                                                                               



privileges. And after the review committee issued its report, the committee chair sent the  

                                                                                                                              



Providence  Board  a letter  recommending  clarifying  MS 980-150(D)'s  language by  

                                                                                                                              



                                                               -7-                                                        7172
  


----------------------- Page 8-----------------------

adding some "interpretive guidance to illustrate the types of limitations, restrictions, and                                                                                                                                                                           



conditions that are intended to be included."                                                                                                  



                                          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.                                                                                                                                                                                   



                                          3.                    Superior court proceedings                         



                                          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  



                                                                                                       1  

immunity under both Alaska law                                                                                                                                                                                                                                         

                                                                                                           and the federal Health Care Quality Improvement Act  

                                 2       Dr. Brandner opposed and cross-moved for partial summary judgment,  

(HCQIA).                                                                                                                                                                                                                                         



arguing that Providence and the doctors were not entitled to immunity under either state  

                                                                                                                                                                                                                                                                    



or federal law and that his due process rights were violated.   In February 2014 the  

                                                                                                                                                                                                                                                                       



superior court granted summary judgment in favor of the individual doctors, concluding  

                                                                                                                                                                                                                                               



                     1                    See  AS 18.23.020 (limiting review proceedings participants' liability for                                                                                                                                                     



damages or other relief if their review actions were not motivated by malice, were taken                                                                                                                                                                         

after reasonable efforts to ascertain the facts, and were taken with the reasonable belief                                                                                                                                                                      

that they were warranted).                     



                     2                    42 U.S.C.  11101-11152 (2012).  Congress passed HCQIA in an effort  

                                                                                                                                                                                                                                                                 

to "restrict the ability of incompetent physicians to move from State to State without  

                                                                                                                                                                                                                                                         

disclosure  or   discovery  of  the  physician's  previous  damaging  or  incompetent  

                                                                                                                                                                                                                                        

performance"  by  encouraging  physicians  to  engage  in  "effective  professional  peer  

                                                                                                                                                                                                                        

review."   42 U.S.C.  11101.   In pursuit of this aim the HCQIA limits damages on  

                                                                                                                                                                                                                                                                         

professional review actions.  42 U.S.C.  11111.  

                                                                                                                                 



                                                                                                                                     -8-                                                                                                                           7172
  


----------------------- Page 9-----------------------

                                                                                                                                                                                                                                                                         3  

 that   AS   18.23.020   immunized   them   from   suit.     The   court   also   granted   summary  



judgment in Providence's favor on Dr. Brandner's contract claims.                                                                                                                                                                                                                                                                                                                The court denied                                            



 Dr. Brandner's cross-motion for summary judgment on his due process claims against                                                                                                                                                                                                                                                                                                                                                        



 Providence.   



                                                                         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 a pre-termination opportunity to be heard is a due process                                                                                                                                                                                                                                                                                                                                                  



 violation; (2) the post-hearing termination confirmation 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.                                              



                                     3                                   We later affirmed this decision in                                                                                                                                                    Brandner v. Bateman                                                                                                    ,   concluding that  



  "the executive committee and hearing panel reasonably interpreted the policy" and                                                                                                                                                                                                                                                                                                                                                                         

  "enforced the sanction explicitly indicated in the policy."                                                                                                                                                                                                                                                       349 P.3d 1068, 1076 (Alaska                                                                                         

 2015).  



                                                                                                                                                                                                                                   -9-                                                                                                                                                                                                                   7172
  


----------------------- Page 10-----------------------

III.	        STANDARD OF REVIEW                 



                         We review due process claims de novo, "adopting the rule of law most                                                             



                                                                                                  4  

persuasive in light of precedent, reason, and policy."                                                                                        

                                                                                                      Whether the HCQIA immunizes  



                                                                                                                                                           

Providence from Dr. Brandner's due process claims is a question of law that we also  



                              5  

                    

review de novo. 



IV.	         DISCUSSION  



                                                                                                                                                       

             A.	         Dr. Brandner's Procedural Due Process Rights Were Violated When  

                                                                                                                                 

                         His Hospital Privileges Were Terminated Without A Pre-Termination  

                                                                 

                         Opportunity To Be Heard.  



                                                                                                                                                             

                         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  



                                                           6  

                                                                                                                                                     

form of due process protection.                                The specific issue presented involves the due process  



                                                                                                                                                              

right to an opportunity to be heard prior to terminating hospital privileges. Although the  



                                                                                                                                                  

parties consistently describe this as "pretermination hearing" and we use that language  



                                                                                                                                                        

throughout our opinion, we do not mean to suggest that the opportunity to be heard  



                                                                                                                                                           

necessarilyinvolves aformal hearing likethatset forth in Providence's Fair Hearing Plan  



                                                                                                                                                          

and made available to Dr. Brandner after his hospital privileges were terminated.  This  



                                                                                                                                                         

dispute does not raise the question of what kind of pretermination hearing - more  



             4           Alyeska Pipeline Serv. Co. v. State, Dep't of Envtl. Conservation                                                      , 145 P.3d     



561, 564 (Alaska 2006).           



             5           Bryan v. James E. Holmes Reg'l Med. Ctr., 33 F.3d 1318, 1332 & n.24  

                                                                                                                                                           

(11th  Cir.  1994);  see  also  Maness  v.  Daily,  307  P.3d  894,  900  (Alaska  2013)  

                                                                                                                                                       

(articulating the de novo standard of review in the federal qualified immunity context).  

                                                                                                                                                  



             6           See Storrs v. Lutheran Hosps. &Homes Soc'y of Am., Inc., 609 P.2d 24, 28  

                                                                                                                                                               

(Alaska 1980) (holding quasi-public hospitals cannot violate due process standards in  

                                                                                                                                                               

denying staff privileges).  

                           



                                                                             -10-	                                                                       7172
  


----------------------- Page 11-----------------------

specifically what kind of opportunity to be heard - must be provided to meet due                                                                                                                                                           



process concerns.   



                                      1.	                Dr.   Brandner   did   not   waive   his   right   to   a   pre-termination  

                                                         opportunity to be heard.                               



                                      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                                                                                                                                     



                                 7  

is afforded.                                                                                                                                                                                                                  

                                        We previously have held that a waiver of constitutional rights must be  



knowing and voluntary, and even in civil cases "courts must indulge every reasonable  



                                                                                                    8  

                                                                                                                                                                                                                                                

presumption against their waiver."                                                                        And although constitutional rights are subject to  



                                                                                                                                       9  

                                                                                                                                                                                                                                             

contractual waiver, such waiver must be clear.                                                                                                Courts have found clear waiver, for  



                                                                                                                                                                                                                     

example, in collective bargaining agreements   representing "a reciprocal negotiation  



                                                                                                                                                                                                                                               

between  forces  with  strengths  on  both  sides,  reflecting  the  reconciled  interests  of  

                                                                                                                                                     10      But here Dr. Brandner had not  

                                                                                                                                                                                                                                            

employer and employees, voluntarily entered into." 



entered into a reciprocal negotiation with Providence for his hospital privileges; the  

                                                                                                                                                                                                                                            



                   7                  See Storrs v. Municipality of Anchorage                                                                               , 721 P.2d 1146, 1150 (Alaska                                      



 1986) (providing collective bargaining agreement may alter covered employees' pre-                                                                                                                                                       

termination rights in limited circumstances);                                                                                  Antinore v. State                                , 371 N.Y.S.2d 213, 217                                    

(N.Y.  App. Div. 1975) (finding collective bargaining agreements made by "a reciprocal                                                                                                                                    

negotiation   between   forces   with   strengths   on  both  sides,   reflecting   the   reconciled  

interests of employer and employees, voluntarily entered into" can waive due process                                                                                                                                            

rights).  



                   8                  Lynden Transp. v. State, 532 P.2d 700, 717 (Alaska 1975).  

                                                                                                                                                                                           



                   9                  Bowen v. N.C. Dep't of Human Res., 710 F.2d 1015, 1018 (4th Cir. 1983).  

                                                                                                                                                                                                                                    



                   10                 Antinore , 371 N.Y.S.2d at 217.  

                                                                                                                  



                                                                                                                     -11-	                                                                                                              7172
  


----------------------- Page 12-----------------------

requirement of abiding by the hospital's policy to obtain privileges is more akin to a                                                                                                                  



contract of adhesion.                              



                               Providencecites                        Whitaker v.Houston                             CountyHospital 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                                                                                                

                                         11   But in Whitaker the doctor "expressly waive[d] any procedural due  

due process right.                                                                                                                                                                                

process rights" through a contract entered into directly with the hospital.12   Here neither  

                                                                                                                                                                                          



Providence policy MS 980-150 nor the document Dr. Brandner signed for his 2009  

                                                                                                                                                                                              



reinstatement at the hospital specifically mentioned waiving due process rights.  Thus  

                                                                                                                                                                                              



there is no evidence of a "conspicuous and unequivocal" intent by Dr. Brandner to waive  

                                                                                                                                                                                             



his right to a pre-termination hearing.  The superior court rejected Providence's waiver  

                                                                                                                                                                                           



argument, finding "nolanguagein[Dr.Brandner'sapplication for privileges]referencing  

                                                                                                                                                                                



a general right to due process or dealing specifically with a physician's right to . . . a pre- 

                                                                                                                                                                                              



termination hearing in professional review actions."  

                                                                                                                            



                               Like the superior court, we conclude that Dr. Brandner did not knowingly  

                                                                                                                                                                                 



and clearly waive his due process rights merely by signing his reappointment application  

                                                                                                                                                                                 



for hospital privileges.  Thus Dr. Brandner maintained a protected property interest in  

                                                                                                                                                                                                      



his hospital privileges subject to due process if terminated.  

                                                                                                               



                11             613 S.E.2d 664, 671-72 (Ga. App. 2005).                                            



                12             Id. at 667.  

                                             



                                                                                                -12-                                                                                                   7172  


----------------------- Page 13-----------------------

                            2.	          Due process required that Dr. Brandner receive an opportunity                                                   

                                         to be heard prior to the termination of his hospital privileges.                                                 



                            Dr.   Brandner   contends   that   due   process  requires   a   hearing   before  



                                                                                                                                                         13  

deprivation of a constitutionally protected property interest in employment.                                                                                             

                                                                                                                                                              "We have  



                                                                                                                                                                 

consistently held that before the state may deprive a person of a protected property  



                                                                                 14  

                                                                                                                                                  

interest there must be a hearing . . . ."                                              The only exceptions to this pre-termination  



                                                                                                                                                                              

hearing requirement are in emergency situations or when "public health, safety, or  



                                                                             15  

                                                                                                                                                                         

welfare  require[s]  summary  action."                                               Other  courts  have  agreed  that  medical  staff  



                                                                                                                                                                  

privileges are a valuable property interest and that notice and hearing should precede  



                                                                                                                                                                       

termination  of  these  privileges  absent  an  "extraordinary  situation  where  a  valid  



                                                                                          16  

                                                                            

government or medical interest is at stake." 



                                                                                                                                                  

                            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  



              13	           See City of N. Pole v. Zabek                             , 934 P.2d 1292, 1297 (Alaska 1997).                             



              14	  

                                                                                                                                                              

                            Graham v. State, 633 P.2d 211, 216 (Alaska 1981) (first citing Etheredge  

                                                                                                                                                               

v. Bradley, 502 P.2d 146 (Alaska 1972); then citing Frontier Saloon, Inc. v. Alcoholic  

Beverage Control Bd.                         , 524 P.2d 657 (Alaska 1974)).                                    



              15           Id. (quoting Frontier Saloon, 524 P.2d at 661).  

                                                                                                                              



              16           Ne. Ga. Radiological Assocs., P.C. v. Tidwell, 670 F.2d 507, 511 (5th Cir.  

                                                                                                                                                                           

Unit B 1982); accord Shahewy v. Harrison, 875 F.2d 1529, 1533-34 (11th Cir. 1989);  

                                                                                                                                                                     

Osuagwu v. Gila Reg'l Med. Ctr., 850 F. Supp. 2d 1216, 1223 (D.N.M. 2012).  

                                                                                                                                                     



                                                                                     -13-	                                                                              7172
  


----------------------- Page 14-----------------------

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                                                                                                                  

                                                                         17       This stigma is compounded because federal law now  

as well as after the hearing.                                                                                                                                                                                     

requires that all terminations be reported to a national data bank.18   Acknowledging the  

                                                                                                                                                                                                                      



competing interests between a doctor's capacity to maintain employment and a health  

                                                                                                                                                                                                            



care  entity's  interest  in  maintaining  safe  and  high  quality  patient  care,  we  have  

                                                                                                                                                                                                                



previously held that terminating hospital privileges before a hearing is "justified only  

                                                                                                                                                                                                                  



where there is evidence that a physician's conduct poses a realistic or recognizable threat  

                                                                                                                                                                                                                

to patient care which would require immediate action by the hospital."19  

                                                                                                                                                            



                                  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."  

                                                                                                                                                          



                 17               McMillan v. Anchorage Cmty. Hosp.                                                              , 646 P.2d 857, 864 (Alaska 1982).                                                          



                 18               42 U.S.C.  11133, 11136; 45 C.F.R.  60.1 (2013).                                                                   



                 19               McMillan, 646 P.2d at 866.                                  



                                                                                                          -14-                                                                                                   7172
  


----------------------- Page 15-----------------------

                            Providence has a policy expressly authorizing an immediately effective                                                                    



"precautionary suspension" when a doctor presents an imminent danger to the health or                                                                                               



safety of an individual or to the hospital's orderly operations, but this was not the policy                                                                               

                                                                                                                         20       As  Pakney  noted  at  the  

followed   when   terminating   Dr.   Brandner's   privileges.                                                                                                                   



November 2011 hearing, there was no precautionary suspension because there was no  

                                                                                                                                                                                   



determination that Dr. Brandner was an imminent danger to health or public safety. The  

                                                                                                                                                                                



executive committee was aware that the Menninger Clinic had evaluated Dr. Brandner  

                                                                                                                                                                     



and found he was fit to practice.  Although this evaluation might not have considered  

                                                                                                                                                                 



other factors bearing on whether Dr. Brandner was an imminent threat to patient care,  



it is relevant to whether Providence actually terminated Dr. Brandner because it found  

                                                                                                                                                                            



that  he  posed  a  threat  to  patient  care.                                               And  the  June  17,  2011  letter  notifying  

                                                                                                                                                     



Dr.  Brandner  of  the  executive  committee's  recommendation  that  his  privileges  be  

                                                                                                                                                                                   



terminated made no mention of patient safety concerns.  

                                                                                                                        



                            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's  determination  that  the  

                                                                                                                                                                                 



connection between Dr. Brandner's "dishonesty" and patient safety was sufficient to  

                                                                                                                                                                                    



override Dr. Brandner's due process right, and we conclude that Providence violated  

                                                                                                                                                                       



Dr. Brandner's right to due process by terminating his hospital privileges without a pre- 

                                                                                                                                                                              



termination opportunity to be heard.  

                                                                               



              20             Cf.  42 U.S.C.  11112(c)(2) (providing HCQIA immunity safe harbors for                                                                              



action taken to prevent "imminent danger to the health of any individual," subject to                                                                                               

post-suspension notice and hearing protections).                             



                                                                                        -15-                                                                                 7172
  


----------------------- Page 16-----------------------

                     B.	                 Dr. Brandner's Substantive Due Process Rights Were Not Violated                                                                                                                                     

                                         Through Arbitrary And Capricious Application Of An Ambiguous                                                                                                                              

                                         Hospital Policy.   



                                         Dr. Brandner further claims that his substantive 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                                                                                                                               



trainingandexperiencenecessary                                                                        to qualify for hospital                                          privileges, courtsmaydetermine                                       



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                                                                                                                                                                          



                                               21  

process of law.                                                                                                                                                                                                                                              

                                                        These principles require that:  (1) the procedures employed are fair;  



                                                                                                                                                                                                                                                                 

(2) the standards are reasonable; and (3) the standards have not been applied in an  



                                                                                                  22  

                                                                                                                                                                                                                                        

arbitrary and capricious manner.                                                                         Due process further requires that "criteria established  



                                                                                                                                                                                                                                      

for granting or denying privileges not be vague and ambiguous, and that as established,  



                                                                                       23  

                                                                                                                                                                                                                              

they be applied objectively."                                                                  "A statute, rule, or policy may be deemed impermissibly  



                                                                                                                                                                                                                                             

vague  for  either  of  two  discrete  reasons:                                                                                               It  fails  to  provide  people  of  ordinary  



                                                                                                                                                                                                                                                                    

intelligence  a  reasonable  opportunity  or  fair  notice  to  understand  what  conduct  it  



                                                                                                                                                                                                                                                                    24  

                                                                                                                                                                                                                                                                           

prohibits; or, it authorizes or encourages arbitrary and discriminatory enforcement." 



Accordingly the inquiry before us is not whose policy interpretation is more reasonable,  

                                                                                                                                                                                                                                       



                     21                  Kiester v. Humana Hosp. Alaska, Inc.                                                                             , 843 P.2d 1219, 1223 (Alaska 1992).                                                        



                     22                  Id.  



                     23                  Id. at 1225.  

                                                           



                     24                  Roberts v. Titus Cty. Mem'l Hosp.                                                                        , 129 Fed. Appx. 82, 86 (5th Cir. 2005)                                                              



(citing Chicago v. Morales, 527 U.S. 41, 56-57 (1999)).  

                                                                                                                                                    



                                                                                                                               -16-	                                                                                                                      7172
  


----------------------- Page 17-----------------------

but whether the policy itself is so vague or ambiguous that it is susceptible to an arbitrary                                                                                                                                                                                                                                    



and capricious application.                                   



                                                        1.                         The policy's application was clear.                                                                                                                      



                                                       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 to state law. MS 980-150's operative                                                                                                                                                                                                                                      



provision   requires   doctors   to   report   to  Providence   "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."                                                                                             Dr. Brandner argues that state law does not construe the                                                                                                                                                                   



 State Board's order as a "disciplinary action" or a "condition," because such actions                                                                                                                                                                                                                                                



                                                                                                                                                                                                                                                                                                                                                               25  

would have required that the State Board hold a hearing and none occurred in his case.                                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                                                                                                                   

  Thus Dr. Brandner argues that under state law his practice was never limited in any way  



                                                                                                                                                                                                                                                                                                                                          

and that he cannot be faulted for his interpretation, especially when the State Board  



                                                                                                                                                                                                                                                                                                                                                    

investigator  had  confirmed  in  his  case's  proceedings  that  his  license  "was  not  



                                                                                                                                                                                                                                         

conditioned, limited, or restricted by the [State] Board."  



                                                                                                                                                                                                                                                                                                                                                 

                                                        Surviving a vagueness challenge requires "fair notice" of what is and what  

                                                                      26         And here the superior court found that Dr. Brandner had more than  

                                                                                                                                                                                                                                                                                                                                                  

is not prohibited. 



                            25                         See   AS   08.64.326(a)   (requiring   a   hearing   before   imposing   sanctions);  



AS08.64.331(a)(6)(describingsanctionsStateBoard may impose,including "limitations                                                                                                                                                                                                                                    

or conditions on the practice of a licensee"). Dr. Brandner's argument rests on the theory                                                                                                                                                                                                                                                 

that Providence must interpret the word "conditions" in MS 980-150 exactly, and only,                                                                                                                                                                                                                                                           

as the word is used by the State Board in AS 08.64.331(a).                                                                                                                                                                                                       We find this argument                                      

unpersuasive   -   "limitations"   and   "conditions"   do   not   necessarily   have   the   same  

meaning   under   MS   980-150,  a   Providence   hospital   policy,   as   they   do   under  

AS 08.64.331(a)(6), astatute                                                                                          setting out State Board procedures. And                                                                                                                             the hospital policy  

does not mention the statute.                                                           



                            26                         Roberts, 129 Fed. Appx. at 86; see Gottschalk v. State, 575 P.2d 289, 290  

                                                                                                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                              (continued...)  



                                                                                                                                                                          -17-                                                                                                                                                                   7172
  


----------------------- Page 18-----------------------

"fair notice" of what MS 980-150 required; it found he had actual knowledge that the                                                                                                                  



policy required him to report the conditions the State Board placed on his license.                                                                                                               The  



superior court found that Dr. Brandner knew the self-reporting policy applied to his                                                                                                                 



circumstances and knew he had an obligation to report the conditions placed on his                                                                                                                    



license, and thus he knowingly violated the policy. Dr. Brandner does not challenge that                                                                                                            



finding.    We   therefore   affirm   the   superior   court's   determination   that   the   policy's  



application was clear to Dr. Brandner.                                                      

                                2.             The policy was not applied arbitrarily or capriciously.                                                                                  27  



                                                                                                                                                                                     

                                When  concerns  are  raised  about  a  hospital  policy  giving  enforcing  



                                                                                                                                                          

authorities excessive discretion, the policy should not be found impermissibly vague  



                                                                                                                         28 

                                                                                                                                                                                                      

                                                                                                                               And on the facts of this case, the  

absent evidence that it has been arbitrarily applied. 



hospital policy was not arbitrarily or capriciously applied.  Dr. Brandner suggests that  



                                                                                                                                                                                                   

the  ambiguity  of  the  policy  allowed  Providence  to  enforce  it  in  an  arbitrary  and  



                                                                                                                                                                                                

capricious manner. As evidencethat Providencehad impermissibly broadened the scope  



                                                                                                                                                                                                       

of  the  policy  and  enforced  it  in  an  arbitrary  and  capricious  manner,  he  points  to  



                                                                                                                                                                                                      

testimony before the hearing panel from an executive committee member who took the  



                                                                                                                                                                                                     

view that the policy required reporting "investigations."  Dr. Brandner's argument has  



                                                                                                                                                                                           

no merit.  The executive committee member's testimony did not persuade the hearing  



                26              (...continued)  



                    

(Alaska 1978).  



                27              See   Roberts,   129   Fed.   Appx.   at  86  (holding   a   rule   may   be   deemed  



                                                                                                                                                                         

impermissibly  vague  if  "it  authorizes  or  encourages  arbitrary  and  discriminatory  

enforcement" (citing                              Chicago v. Morales                            , 527 U.S. 41, 56-57(1999)));                                       see also Morales                       ,  

                                                                                                                                                                                                   

527  U.S.  at  60  (defining  an  arbitrary  and  discriminatory  application  as  one  that  

                                                                                                                                                                                      

"necessarily entrusts lawmaking to the moment-to-moment judgment" of the enforcer).  



                28              See Stock v. State, 526 P.2d 3, 8, 12 (Alaska 1974).  

                                                                                                                                          



                                                                                                  -18-                                                                                           7172
  


----------------------- Page 19-----------------------

panel to conclude that investigations, as well as limitations, restrictions, and conditions,                                                                                                                                                                                                                                                                                                                                



must be reported.                                                                                         The hearing panel in fact concluded that Dr. Brandner's hospital                                                                                                                                                                                                                                                                  



privileges were terminated because of his failure to report a "condition" the State Board                                                                                                                                                                                                                                                                                                                                                              



imposed on his license, not because of his failure to report an investigation.                                                                                                                                                                                                                                                                                                                                                  



                                                                         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 for the Providence executive committee's recommendation to terminate his                                                                                                                                                                                                                                                                                                                                                                                  



privileges and that the hearing panel gave the misconduct evidence "no weight" in                                                                                                                                                                                                                                                                                                                                                                                           



upholding the decision.                                                                                                           We therefore affirm the superior court's determination that the                                                                                                                                                                                                                                                                       



policy was not applied arbitrarily or capriciously.                                                                                                                                                    



                                                                         3.                                   There is no history of arbitrary and capricious application.                                                                                                                                                                                                                      



                                                                         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  

                                                                              29  Although we do not need to consider whether this standard is applicable  

 enforcement."                                                                                                                                                                                                                                                                                                                                                                                                                   



beyond that context, we nevertheless note that Dr. Brandner failed to identify a pattern  

                                                                                                                                                                                                                                                                                                                                                                                                                                            



 of Providence arbitrarilyenforcing MS 980-150. And the Providence reviewcommittee,  

                                                                                                                                                                                                                                                                                                                                                                                                                             



in its letter to the Providence Board recommending review of the policy, wrote that the  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                        



                                     29                                  Storrs v. State Med. Bd.                                                                                                                , 664 P.2d 547, 552 (Alaska 1983) (refusing to                                                                                                                                                                                                             



invalidate a statute when the defendant physician could not identify any instances of                                                                                                                                                                                                                                                                                                                                                                                       

 arbitrary enforcement by the State Board);                                                                                                                                                                                                 see also Stock                                                                    , 526 P.2d at 12 ("While we                                                                                                               

may   be   able   to  conceive of instances in                                                                                                                                                                                           which   the statute could                                                                                                                  be arbitrarily                                                                and  

 capriciously enforced, we cannot on the basis of such mere hypothesis, in the absence   

 of any history of actual arbitrary application, invalidate the statute.").                                                                                                                                                                                                                                                          



                                                                                                                                                                                                                                  -19-                                                                                                                                                                                                                         7172
  


----------------------- Page 20-----------------------

review committee had no reason to believe Providence had interpreted MS 980-150(D)                                                                                                                             



differently for different physicians in the past or was likely to do so in the future.                                                                                                                                              



                                     4.	                Summary  



                                     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 applying the                                                                                                                                                 



policy in terminating Dr. Brandner's hospital privileges violated his substantive due                                                                                                                                                



process   rights.     Dr.   Brandner  therefore   is   not   entitled   to   reinstatement   or   post- 



termination-hearing damages.   



                   C.	               Providence Does Not Qualify For HCQIA Immunity With Respect To                                                                                                                                     

                                     The              Termination                                 Of           Dr.             Brandner's                             Privileges                         Without                       An  

                                     Opportunity To Be Heard.                                   



                                     Congress enacted HCQIA to improve the quality of health care and reduce                                                                                                                  



                                                                                                           30  

the number of incompetent physicians.                                                                                                                                                                                                     

                                                                                                                  Congress determined that both goals could be  



                                                                                                                                                  31  

                                                                                                                                                                                                                    

attained through "effective professional peer review."                                                                                                  Accordingly HCQIA eliminates  



                                                                                                                                                                                                                                        

some  deterrents  to  effective  professional  peer  review  of  physician  competence  by  



                                                                                                                                                                                                                

providing immunity from damages to "professional review bodies" and individuals  



                                                                                               32  

                                                                           

acting in support of those bodies.                                                                                                                                                                                                      

                                                                                                        Immunity under the act covers only liability for  



                   30                See  42  U.S.C.     11101.  



                   31                Id.  



                   32                See   id.      11111(a)(1)-(2);   see   also   42   U.S.C.    11151(11)   (defining  



"professionalreviewbody"as"health                                                                      careentity"),                        11151(4)(A) (defining "health care                                                      

                                                           

entity" as licensed hospital); Decker v. IHC Hosps., Inc., 982 F.2d 433, 436 (10th Cir.  

                                                                                                                                                                                                        

 1992) (exploring scope of immunity provided by  11111(a)).  

                                                                                                                                             



                                                                                                                   -20-	                                                                                                          7172
  


----------------------- Page 21-----------------------

damages; it does not shield covered defendants from lawsuit or from other forms of                                                                

relief.33  



                         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:  

                                           



                         For purposes of the protection set forth in section 11111(a) of  

                                                                                                                                       

                         this title, a professional review action must be taken -  

                                                                                                                                  



                                      (1) in the reasonable belief that the action was in the  

                                                                                                                                    

                                      furtherance of quality health care,  

                                                                                             



                                      (2) after a reasonable effort to obtain the facts of the  

                                                                                                                                    

                                      matter,  



                                                                                                                                    

                                      (3) 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, and  



                                                                                                                                 

                                      (4)  in  the  reasonable  belief  that  the  action  was  

                                                                                                                     

                                      warranted by the facts known after such reasonable  

                                                                                                                    

                                      effort to obtain facts and after meeting the requirement  

                                                               

                                      of paragraph (3).  



                                                                                                                                   

                         A professional review action shall be presumed to have met  

                                                                                                                                    

                         the preceding standards necessary for the protection set out  

                                                                                                                                      

                         in section 11111(a) of this title unless the presumption is  

                                                                                                              [34]  

                                                                                            

                         rebutted by a preponderance of the evidence. 



Federalcourts havegranted hospitalsimmunity under theAct whentheyclearly establish  

                                                                                                                                                   



that "a full and fair peer review process was used" in connection with denying hospital  

                                                                                                                                                    



             33          42 U.S.C.  11111(a)(1) (specifying immunity from damages only and not                                                              



mentioning other relief);                      Singh v. Blue Cross/Blue Shield of Mass., Inc.                                      , 308 F.3d 25, 35           

(1st Cir. 2002).     



             34          42 U.S.C.  11112(a).  

                                                 



                                                                             -21-                                                                        7172
  


----------------------- Page 22-----------------------

                                                35  

privileges to a physician.                            Under HCQIA "a professional review body (including a                                                        



hospital), its members, its staff, and others under contract with it are immune from                                                                      

                                                                                                       36    Here there is no dispute that  

damages liability with respect to the body's actions."                                                                                                       

                                                                                                                            37    and  its  claim  for  

Providence  is  a  "health  care  entity"  contemplated  by  HCQIA,                                                                                          

                                                                                                            



protection  arose  from  a  peer  review  process  for  the  purpose  of  furthering  quality  

                                                                                                                                                      



healthcare.   Dr. Brandner argues that Providence did not satisfy the notice and hearing  

                                                                                                                                                      

prerequisite for immunity because he was not given a hearing prior to his termination.38  

                                                                                                                                                                      



                         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  

                                                                                                                                                                



             35          Ezekwo v. Am. Bd. of Internal Med.                                   , 18 F. Supp. 2d 271, 277 (S.D.N.Y.                



 1998),  aff'd   174 F.3d 844 (2d Cir. 1999).                      



             36          Sobel v. United States, 571 F. Supp. 2d 1222, 1229 (D. Kan. 2008); see also  

                                                                                                                                                             

Rodgers v. Columbia/HCA of Cent. La., Inc., 971 F. Supp. 229, 233 (W.D. La. 1997)  

                                                                                                                                                         

(finding the hospital immune because it is a health care entity engaged in a professional  

                                                                                                                                             

review activity).  

               



             37          See 42 U.S.C.  11151(4)(A)(ii) (using the term "health care entity" to  

                                                                                                                                                                

describe an organization like Providence).  

                                                         



             38          See id.  11112(a)(3), (b).  

                                                                    



                                                                              -22-                                                                        7172
  


----------------------- Page 23-----------------------

 terminating   his   hospital   privileges,   and   thus   HCQIA   immunity   cannot   attach   to  

 Providence's initial termination action.                                                                                                                                                                                                           39  



                                          39                                        In its petition for rehearing Providence argues that the superior court made                                                                                                                                                                                                                                                                                                                                                        



 a factual finding that Dr. Brandner was not terminated in June 2011 but rather was only                                                                                                                                                                                                                                                                                                                                                                                                                                     

 suspended pending the pre-termination fair hearing process.                                                                                                                                                                                                                                                                                                                                      Providence argues that                                                                                                        

unless    this    unappealed    finding    is    clearly    erroneous,    we    must    conclude    that  

 Dr. Brandner's privileges were not terminated until the Board affirmed the decision of                                                                                                                                                                                                                                                                                                                                                                                                                                                    

 the fair hearing appellate panel.                                                                                                                                                                    It is not clear that there would be any difference in the                                                                                                                                                                                                                                                                       

 due process and HCQIA                                                                                                                                analyses if Dr. Brandner's privileges had been suspended rather                                                                                                                                                                                                                                                                                                 

 than terminated without an opportunity to be heard.                                                                                                                                                                                                                                                                          Cf. id.                                    11112(c)(1)(B) (providing                                                                                    

 HCQIA    safe    harbor    for    14-day    investigatory    suspensions,   thereby    implicitly  

 contemplating   immunity   might not attach                                                                                                                                                                                                                                  for   longer   suspensions).     Regardless,   we  

 conclude that any such putative finding by the superior court is clearly erroneous.                                                                                                                                                                                                                                                                                                                                                                                                                                           See  

Baker v. Ryan Air, Inc.                                                                                                                        , 345 P.3d 101, 106 (Alaska 2015) ("We review factual findings                                                                                                                                                                                                                                                                                         

 for clear error . . . . 'A factual finding is clearly erroneous if, after reviewing the record                                                                                                                                                                                                                                                                                                                                                                                                                  

 in the light most favorable to the prevailing party, we are definitely and firmly convinced                                                                                                                                                                                                                                                                                                                                                                                             

 that the finding is mistaken.' " (footnote omitted) (quoting                                                                                                                                                                                                                                                                                                              Simone H. v. State, Dep't of                                                                                                                                      

Health & Soc. Servs., Office of Children's Servs.                                                                                                                                                                                                                                                                , 320 P.3d 284, 288 (Alaska 2014))).                                                                                                                                           



                                                                                    The policy Providence relied upon calls for the automatic termination of                                                                                                                                                                                                                                                                                                                                                                               

privileges, not suspension; as discussed earlier Providence did not rely on its policy                                                                                                                                                                                                                                                                                                                                                                                                                          

 calling for an immediate "precautionary suspension" of privileges for patient safety                                                                                                                                                                                                                                                                                                                                                                                                                             

 concerns. At the November fair hearing Providence's counsel told the hearing panel that                                                                                                                                                                                                                                                                                                                                                                                                                                          

 in   June   2011   the   executive   committee   had   recommended   "that   [Dr.   Brandner's]  

privileges were to be automatically terminated" and that in June 2011 the Providence                                                                                                                                                                                                                                                                                                                                                                                              

 Board "affirmed" that recommendation.                                                                                                                                                                                                                     Pakney then testified at the hearing exactly as                                                                                                                                                                                                                                  

 Providence's counsel had described the sequence of events. The fair hearing panel then                                                                                                                                                                                                                                                                                                                                                                                                                                       

 stated the same sequence of events in its written decision and concluded that the prior                                                                                                                                                                                                                                                                                                                                                                                                                                  

 decision to automatically terminate Dr. Brandner's privileges under the Providence                                                                                                                                                                                                                                                                                                                                                                                             

policy was "not arbitrary, capricious, or unsupported by substantial evidence." The fair                                                                                                                                                                                                                                                                                                                                                                                                                                            

hearing appellate panel similarly stated that the executive committee had concluded that                                                                                                                                                                                                                                                                                                                                                                                                                                          

 "automatic termination" of Dr. Brandner's privileges was warranted and the Board                                                                                                                                                                                                                                                                                                                                                                                                                               

 "affirmed" the executive committee's recommendation, and, after considering the fair                                                                                                                                                                                                                                                                                                                                                                                                                                              

hearing panel's report, recommended that the executive committee recommendation be                                                                                                                                                                                                                                                                                                                                                                                                                                                        

 confirmed by the Board.                                                                                                                                  Providence points to no part of the record for the fair hearing                                                                                                                                                                                                                                                                                 

process reflecting an argument or position by Providence that Dr. Brandner's privileges                                                                                                                                                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                                                                                                                                                                                        (continued...)  



                                                                                                                                                                                                                                                                 -23-                                                                                                                                                                                                                                                       7172
  


----------------------- Page 24-----------------------

                           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 and policies.                                             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           



                                                                                                                                                                         40  

action adverse to a doctor without providing notice that his conduct was under review.                                                                                        



The hospital   gave "no opportunity to be heard before revoking his privileges  and  

                                                                                                                                               



reporting him to the state medical board and the national data bank," and it never claimed  

                                                                                                                                                             

any health emergency requiring the  immediate suspension of his privileges.41                                                                                       The  

                                                                                                                                                                    



hospital argued that because the doctor had agreed to be bound by its bylaws and because  

                                                                                                                                                             



the bylaws did not provide for notice and hearing prior to a final decision, the hospital  

                                                                                                                                                             



             39            (...continued)  



                                                                                  

had actually not been terminated in June 2011.  



                                                                                                                                                                        

                           Moreover  this  argument  is  completely  contrary  to  the  main  thrust  of  

                                                                                                                                                  

Providence's position in its briefing:  that there was nothing wrong with automatically  

                                                                                                                                                                   

terminating Dr. Brandner's privileges in conformance with its policy and that the post- 

                                                                                                                                                            

termination  fair  hearing  process  satisfied  any  due  process  concerns  and  entitled  

                                                                                                                                                                        

Providence  to  HCQIA  immunity.                                          Indeed,  the  headings  and  related  arguments  in  

                                                                                                                                                              

Providence's brief regarding the due process issue all use a formulation that due process  

                                                                                                                                                                    

"did not require a pre-termination hearing." And Providence explicitly states in its brief  

                                                                           

that "Dr. Brandner's privileges were terminated subject to his right to fully participate  

                                                                                                                                                              

in the Fair Hearing process," Dr. Brandner "was not entitled to a pre-termination hearing  

                                                                                                                                                              

given the explicit language of MS 980-150," and the result of the fair hearing process  

                                                                                                                                                          

was to "affirm[] the application of MS 980-150's automatic sanction."  We therefore  

                                                                                                           

reject this new argument in Providence's petition for rehearing.  



             40            207 P.3d 881, 888 (Colo. App. 2008).  

                                                                                          



             41           Id.  



                                                                                  -24-                                                                            7172
  


----------------------- Page 25-----------------------

                                                                                                                                 42  

had adequately met HCQIA's notice and hearing requirement.                                                                            But the court disagreed,       



holding that a hospital's compliance with its bylaws may nonetheless be insufficient as                                                                                             

                                                                                                                           43     The court concluded that  

a matter of law to meet HCQIA immunity requirements.                                                                                                                            



immunity attaches when the professional review action satisfies HCQIA requirements,  

                                                                                                                                                           

regardless of the hospital's own procedures,44 and that signing hospital bylaws did not  

                                                                                                                                                                                 



waive  the  doctor's  right  to  adequate  notice  and  hearing  under  HCQIA  statutory  

                                                                                                                                                                    

provisions.45   The court concluded that the hospital failed to provide the doctor adequate  

                                                                                                                                                                      



notice and hearing under  11112(a)(3), and thus it denied the hospital HCQIAimmunity  

                                                                                                                                                                    

from the doctor's claims.46  

                                       



                            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 on  

                                                                                                                                                                                   



June   17   Providence   gave   Dr.   Brandner   notice   of   the   executive   committee's  

                                                                                                                                                            



recommendation  and  of  his  right  to  a  hearing,  the  Providence  Board  affirmed  the  

                                                                                                                                                                                 



executive committee's recommendations a few days later without giving Dr. Brandner  

                                                                                                                                                                     



any opportunity to be heard.  And although appeal hearings took place after the actual  

                                                                                                                                 



termination of Dr. Brandner's privileges, these procedures are insufficient to satisfy  

                                                                                                                                                                          



 11112(a)(3)'s requirement that adequate hearing procedures must be afforded to the  

                                                                                                                                                                            



physician  before  the  professional  review  action  is  taken.                                                                     Providence  could  have  

                                                                                                                                                                             



              42            Id.  at 884, 888.       



              43            Id.  at 888.   



              44            Id.  at 889.   



              45            Id.  at 888.   



              46            Id.  at 886-89.   



                                                                                        -25-                                                                                 7172
  


----------------------- Page 26-----------------------

provided some kind of opportunity for Dr. Brandner to be heard between June 17 and the                                                                                                                             



Providence Board's affirmation of the termination recommendation a few days later, 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  

                                                                                                                                                                                                        47      The  

such other procedures as are fair to the physician under the circumstances."                                                                                                                                   



professional review action at issue is the June termination of Dr. Brandner's hospital  

                                                                                                                                                                                                      



privileges.   This action took place  before the November hearing panel and the later  

                                                                                                                                                                                                               



appellate  review committee proceedings.  As in Peper, Dr. Brandner did not  waive his  

                                                                                                                                                                                                                    

                                                                                                                                                               48   Thus the hearing and  

right to the adequate notice and hearing required under HCQIA.                                                                                                                                                    

                                                                                                                                          



the appeal provided after the termination cannot under the facts of this case be construed  

                                                                                                                                                                                                  



as "other . . . fair" procedures satisfying  11112(a)(3)'s notice and hearing requirement.  

                                                                                                                                                                                                                             



Accordingly,  Dr.  Brandner  rebutted  the  presumption  that  this  element  of  the  four  

                                                                                                                                                                                                               



statutory requirements was met.  

                                                                                   



                                  In its petition for rehearing Providence argues for the first time that it is  

                                                                                                                                                                                                                      



entitled to HCQIA immunity for its failure to provide Dr. Brandner a pre-termination  

                                                                                                                                                                                 

opportunity   to   be   heard   based   on      11112(b)'s49                                                                                         "safe   harbor"   provisions  

                                                                                                                                                                                                                             



                 47               42 U.S.C.  11112(a)(3) (emphasis added).                                                  



                 48               See Peper, 207 P.3d at 889.  

                                                                                             



                 49               This section provides:          



                                  (b)  Adequate notice and hearing                               



                                                  A   health   care   entity   is   deemed   to   have   met  the  

                                                                                                                                                                                         (continued...)  



                                                                                                        -26-                                                                                                  7172
  


----------------------- Page 27-----------------------

49        (...continued)
  



                                                                                             

          adequate notice and hearing requirement of subsection (a)(3)
  

                                                                                       

          [of this section] with respect to a physician if the following
  

                                                                                                

          conditions  are  met  (or  are  waived  voluntarily  by  the
  

          physician):
  



                                                 

             (1) Notice of proposed action  



                                                                                           

                    The physician has been given notice stating -  



                                                                                     

                    (A)(i) thataprofessionalreviewaction has been  

                                                                       

                    proposed to be taken against the physician,  



                                                                 

                    (ii) reasons for the proposed action,  



                                                                                 

                    (B)(i) that the physician has the right to request  

                                                             

                    a hearing on the proposed action,  



                                                                                   

                    (ii)  any time limit (of not less than 30 days)  

                                                                                  

                    within which to request such a hearing, and  



                                                                               

                    (C)  a  summary  of  the  rights  in  the  hearing  

                                               

                    under paragraph (3).  



                                  

             (2) Notice of hearing  



                                                                                   

                    If  a  hearing  is  requested  on  a  timely  basis  under
  

                                                                                            

          paragraph  (1)(B),  the  physician  involved  must  be  given
  

                                   

          notice stating -
  



                                                                               

                    (A) the place, time, and date, of the hearing,  

                                                                            

                    which date shall not be less than 30 days after  

                                                       

                    the date of the notice, and  



                                                                                        

                    (B) a list of the witnesses (if any) expected to  

                                                                                     

                    testify      at   the     hearing       on     behalf       of    the  

                                                    

                    professional review body.  



                                                        

             (3) Conduct of hearing and notice  



                                                                                            

                    If  a  hearing  is  requested  on  a  timely  basis  under  

                                         

          paragraph (1)(B) -  

                                                                                                     (continued...)  



                                                    -27-                                                         7172
  


----------------------- Page 28-----------------------

49       (...continued)  



                  (A)   subject   to   subparagraph   (B),   the   hearing  

                  shall be held (as determined by  the  health  care  

                  entity)  -   



                  (i)  before   an   arbitrator  mutually   acceptable  to  

                  the  physician  and  the  health  care  entity,  



                  (ii)  before  a  hearing  officer  who  is  appointed  by  

                  the   entity   and   who   is   not   in   direct economic  

                  competition  with  the  physician  involved,  or  



                  (iii)   before   a   panel   of   individuals   who   are  

                  appointed   by   the   entity   and   are   not   in   direct  

                  economic        competition        with     the    physician  

                  involved;  



                  (B) the  right  to  the  hearing  may  be forfeited  if  

                  the   physician   fails,   without   good   cause,   to  

                  appear;  



                  (C)   in  the  hearing the  physician   involved  has  

                  the  right  -   



                  (i)   to   representation   by   an   attorney   or   other  

                  person  of  the  physician's  choice,  



                  (ii)  to have  a  record  made  of  the  proceedings,  

                  copies    of   which   may   be    obtained   by   the  

                  physician   upon   payment   of   any   reasonable  

                  charges  associated  with  the  preparation  thereof,  



                  (iii)    to   call,   examine,      and     cross-examine  

                  witnesses,  



                  (iv)   to   present    evidence   determined  to   be  

                  relevant  by  the  hearing  officer,  regardless  of  its  

                  admissibility  in  a  court  of  law,  and  



                  (v)  to  submit  a  written  statement  at  the  close  of  

                                                                                           (continued...)  



                                               -28-                                                   7172  


----------------------- Page 29-----------------------

(other than                     the waiver provision) and numerous federal court decisions Providence                                                                                           



asserts have interpreted those provisions as allowing post-termination hearings to satisfy                                                                                                                    



HCQIA.   But Dr. Brandner does not argue that some sort of deficiency in Providence's                                                                                                        



fair hearing process precludes HCQIA immunity for Providence; Dr. Brandner argues   



that the failure to give him the slightest opportunity to be heard prior to terminating his                                                                                                                            



privileges   -   as   required   by      11112(a)(3)   -   precludes   HCQIA   immunity   for  



Providence. The  11112(b) safe harbor provisions do not appear to give Providence the                                                                                                                                 



protection it seeks.                               And the cases Providence cites do not support its position.                                                                                                    The  



majority of those cases fall under the HCQIA safe harbor provisions for investigatory                                                                                                        



suspensions and actions taken to avoid "imminent danger to the health of any individual"                                                                                                          

                                                               50  either explicitly or implicitly.51  

contained in  11112(c),                                                                                              



                 49                (...continued)  



                                                                                    

                                                   the hearing; and  



                                                                                                                                                                 

                                                    (D)  upon   completion   of   the   hearing,   the  

                                                                                                                                           

                                                   physician involved has the right -  



                                                                                                                                                                    

                                                    (i) to receive the written recommendation of the  

                                                                                                                                                                     

                                                    arbitrator,                    officer,                or        panel,                including                    a  

                                                                                                                             

                                                    statement of the basis for the recommendations,  

                                                    and  



                                                                                                                                                           

                                                    (ii) to receive a written decision of the health  

                                                                                                                                                              

                                                    care entity, including a statement of the basis  

                                                                      

                                                    for the decision.  



                                                                                                                                                                                   

                                                   A  professional  review  body's  failure  to  meet  the
  

                                                                                                                                                                             

                                  conditions described in this subsection shall not, in itself,
  

                                                                                                                                                                             

                                  constitute failure to meet the standards of subsection (a)(3)
  

                                                       

                                   [of this section].
  



                 50               This section provides:  

                                                                    

                                                                                                                                                                                            (continued...)  



                                                                                                          -29-                                                                                                    7172
  


----------------------- Page 30-----------------------

          50        (...continued)  



                                                                                                     

                     (c) Adequate procedures in investigations or health emergencies  



                                                                                                                         

                              For purposes of section 11111(a) of this title, nothing in this section  

                                                          

                    shall be construed as -  



                              (1) requiring the procedures referred to in subsection  

                                                                   

                              (a)(3) of this section -  



                                                                                                       

                              (A) where there is no adverse profession review action  

                                         

                              taken, or  



                                                                                                     

                              (B) in the case of a suspension or restriction of clinical  

                                                                                                       

                              privileges, for a period of not longer than 14 days,  

                                                                                                            

                              during which an investigation is being conducted to  

                                                                                                             

                              determine the need for a professional review action; or  



                                                                                                

                              (2) precluding an immediate suspension or restriction  

                                                                                                          

                              of clinical privileges, subject to subsequent notice and  

                                                                                                          

                              hearing  or  other  adequate  procedures,  where  the  

                                                                                                           

                              failure  to  take  such  an  action  may  result  in  an  

                                                                                        

                              imminent danger to the health of any individual.  



          51        See  Moore v. Williamsburg Reg'l Hosp., 560 F.3d 166, 169-70, 176 (4th  

                                                                                                                              

Cir. 2009) (finding immunity where doctor had:  (1) opportunity to present his case at  

                                               

executive meeting the same night he was summarily suspended in "the best interest of  

                                            

patient care and welfare"; (2) participated with counsel in a review hearing two months  

                                                                                                                         

later where he presented argument, called witnesses, and presented evidence; and (3) a  

                                                                                                                                  

"full-blown" hearing on his appeal to the board five months later); Brader v. Allegheny  

                                                                                                                     

Gen.  Hosp.,  167  F.3d  832,  836-37,  841-42  (3d  Cir.  1999)  (holding  hospital  had  

                                                                                                                             

immunity under  11112(c) where summary suspension of privileges was based on  

                                                                                                                                

documentedcontemporaneousconcernofimminentdanger to patients); Osuagwu v. Gila  

                                                                                                                             

Reg'l Med. Ctr., 850 F. Supp. 2d 1216, 1229, 1238-39 (D. N.M. 2012) (finding pre- 

                                                                                                                             

deprivation  notice  and  hearing  not  necessary  for  duration  of  14-day  investigatory  

                                                                                                               

suspension, see  11112(c)(1)(B), but no immunity for post-investigation extension of  

                                                                                                                                 

suspension  absent  committee  "imminent  danger"  finding  and  adequate  notice  and  

                                                                                                                             

hearing procedures); Straznicky v. Desert Springs Hosp., 642 F. Supp. 2d 1238, 1248 (D.  

                                                                                                                               

Nev. 2009) (finding immunity under  11112(c) where committee "could reasonably  

                                                                                                                   

                                                                                                               (continued...)  



                                                              -30-                                                         7172
  


----------------------- Page 31-----------------------

                       Two of the remaining cases are germane to the question whether a pre-                                                  



                                                                                                                                                  52  

deprivation hearing is necessary in non-emergency and non-investigatory situations.                                                                   



In one the doctor already was on strict probationary status and the court found that under  

                                                                                                                                            



the circumstances the doctor had no expectation of a pre-termination opportunity to be  

                                                                                                                                                 



            51         (...continued)  



                                                                                                                                     

believe . . . the failure to summarily suspend [the doctor] could result in an imminent  

                                                                                                                                          

harm to the health of any individual," and immunity under  11112(a) where doctor  

                                                                                                                                              

received adequate post-suspension procedure); Bakare v. Pinnacle Health Hosps. Inc.,  

                                                                                                                                          

469  F.  Supp.  2d  272,  282-83,  289-90  (M.D.  Pa.  2006)  (finding  immunity  under  

                                                                                                                                             

 11112(c)(2) for "immediate, precautionary suspension" imposed "to protect the lives  

                                                                                                                                               

of patients and to reduce the substantial likelihood of immediate threat to the health and  

                                                                                                                                              

safety of patients," and immunity under  11112(a)(3) where suspension was eased after  

                                                                                                                                    

initial review and vacated after "comprehensive and fair hearing"); Sklaroff v. Allegheny  

                                                                                                                                                

Health Educ. Research Found., No. CIV.A 95-4758, 1996 WL 383137, at *9 (E.D. Pa.  

                                                                                                                                   

 1996) (finding immunity under  11112(c) for summary suspension where committee  

                                                                                             

concluded doctor "presented an immediate danger to patients admitted to his service,"  

                                                                                                                                       

and immunity under  11112(a)(3) where suspension was followed by notice of decision  

                                                                                                                                           

and hearing within 30 days at which doctor was represented by counsel, called and cross- 

                                                                                                                                               

examined witnesses, testified on own behalf, and presented evidence), aff'd mem., 118  

                                               

F.3d 1578 (3d Cir. 1997); Fobbs v. Holy Cross Health Sys. Corp., 789 F. Supp. 1054,  

                                                                                                                                                 

 1062-63, 1067-68 (E.D. Cal. 1992) (holding plaintiff forfeited right to a hearing by  

                                                                                                                                       

failing to attend without good cause), rev'd on other grounds, 29 F.3d 1439, 1442-43  

                                                                                                                                            

(9th Cir. 1994) (holding summarily imposed monitoring restrictions were covered under  

                                                                                                                                                 

 11112(c) where "defendants had ample medical justification to take the steps" to  

                                                                                                                          

"avoid imminent danger"), overruled on other grounds by Daviton v. Columbia/HCA  

                                                                                                        

Healthcare Corp., 241 F.3d 1131, 1133 (9th Cir. 2001) (en banc).  



            52         Seegenerally Rogers v. Columbia/HCAof Cent. La., Inc., 971 F. Supp.229  

                                                                                                                                               

(W.D. La. 1997), aff'd as mod., 140 F.3d 1038 (5th Cir. 1998); Wahi v. Charleston Area  

                                                                                                                                             

Med. Ctr., Inc., 562 F.3d 599 (4th Cir. 2009), aff'g 453 F. Supp. 2d 942 (S.D. W. Va.  

                                                                                                                                               

2006).  



                                                                       -31-                                                                 7172
  


----------------------- Page 32-----------------------

              53  

heard.              In the other the doctor was afforded an opportunity to be heard during the                                                                                              



course of the investigation, understood the process from previous experience, and had   



the opportunity to present his case at a committee meeting shortly after the suspension                                                                                   

                               54     The remaining cases Providence cites are simply not germane to the  

was imposed.                                                                                                                                                                          

question whether a pre-termination hearing is necessary.55   Here Providence terminated  

                                                                                                                                                                           



               53             See Rogers               , 971 F. Supp. at 235-37 (noting a "close question" whether pre-                                                                   



deprivation hearing is always required when exceptions provided in  11112(c) do not                                                                                                        

apply, but holding hearing not required under the circumstances given probationary                                                                                    

status where for "ten months [doctor] was monitored and corrected"and                                                                                          "knewwhat was               

at stake, but . . . conduct did not improve").                            



               54             See  Wahi,  562  F.3d  at  610-14  (holding  pre-suspension  hearing  not  

                                                                                                                                                                                          

necessary under the circumstances when:  (1) suspension was instituted only shortly  

                                                                                                                                                                                   

before doctor had opportunity to present case at committee meeting; (2) doctor had  

                                                                                                                                                                                          

earlier been informed of investigation and provided opportunity to respond in writing;  

                                                                                                                                                                                 

(3)  "allegations were simply the latest in [the doctor's] tumultuous history," which  

                                                                                                                                                                                    

included threepriorsuspensions;and(4)hospital diligently worked to arrangeacceptable  

                                                                                                                                                                            

post-decision hearing but doctor "seemed more intent on forestalling a hearing than  

                                                                                                                                                                                         

having one").  

                 



               55             See Wieters v. Roper Hosp., Inc., 58 Fed. App'x 40, 42-43, 45-46 (4th Cir.  

                                                                                                                                                                                           

2003) (finding immunity where doctor received pre-probation hearing but no post- 

                                                                                                                                                                                       

probation hearing because the latter was replaced by an evidentiary hearing for summary  

                                                                                                                                                                               

suspension that was imposed "in response to new disruptive incidents"); Gabaldoni v.  

                                                                                                                                                                      

 Wash. Cty. Hosp. Ass'n, 250 F.3d 255, 262 (4th Cir. 2001) ("[T]he 'professional review  

                                                                                                                                                                                    

action' occurred when the Board took the action . . . to terminate [the doctor's] clinical  

                                                                                                                                                                                   

privileges and deny his application for reappointment, which indisputably occurred after  

                                                                                                                                                                                         

the requisite notice and hearing procedures were followed."); Smith v. Ricks, 31 F.3d  

                                                                                                                                                                                         

 1478, 1485 n.5 (9th Cir. 1994) (noting  11112(b) safe harbors are sufficient but not  

                                                                                                                                                                                            

necessary to obtain HCQIA immunity); Egan v. Athol Mem'l Hosp., 971 F. Supp. 37, 40- 

                                                                                                                                                                                            

41, 43-44 (D. Mass. 1997) (finding sufficient procedure where, following years of  

                                                                                                                                                                                              

complaints  that  doctor  had  responded  to  both  orally  and  in  writing:                                                                                           (1)  hospital  

                                                                                                                                                                                

recommended  conditional  reappointment  and  provided  opportunity  for  hearing;  

                                                                                                                                                                              

(2) doctor waived right to hearing by failing to timely respond; and (3) privileges were  

                                                                                                                                                                                        

                                                                                                                                                                     (continued...)  



                                                                                             -32-                                                                                       7172
  


----------------------- Page 33-----------------------

Dr. Brandner's privileges in a non-emergency setting without any kind of opportunity   



to be heard despite having the time and ability to give Dr. Brandner that opportunity.                                                                                                                                          



Providence's belated reliance on the safe harbor provisions of  11112(b) is without                                                                                                                     



merit, and  11112(c) similarly fails to support Providence's position.                                                                                      



                                  Wethereforereversethesuperiorcourt's                                                                  conclusion that HCQIAimmunity   



applies to the due process violation arising from terminating Dr. Brandner's hospital                                                                                                                    

                                                                                                                     56    We remand for further proceedings on  

privileges without an opportunity to be heard.                                                                                                                                                                         

Dr. Brandner's claim for damages with respect to this due process violation.57  

                                                                                                                                                                           



V.               CONCLUSION  



                                  We  AFFIRM  the  superior  court's  termination  claim  decision;  we  

                                                                                                                                                                                                                    



REVERSE the pre-termination hearing claim decision and REMAND to the superior  

                                                                                                                                                                                                        



court for further proceedings consistent with this decision.  

                                                                                                                               



                 55               (...continued)  



                                                                                                                                                                                                                    

terminated after doctor failed to complete mandated conditions), aff'd, 134 F.3d 361 (1st  

                                                                                                                                                                                                               

Cir. 1998); Mathews v. Lancaster Gen. Hosp., 883 F. Supp. 1016, 1034 (E.D. Pa. 1995)  

                                                                                                                                                                                                        

(finding immunity applied where proposed restrictions had been suspended pending  

outcome of hearing, proposed action followed a lengthy investigation in which doctor  

                                                                                                                                                                                                                  

participated, and doctor filed suit before hearing was scheduled), aff'd, 87 F.3d 624, 637- 

                              

38 (3d Cir. 1996).  



                 56               Because of this decision we do not need to address other HCQIA issues  

                                                                                                                                                                                                              

Dr. Brandner raised on appeal.  

                                                                                 



                 57               See City of N. Pole v. Zabek, 934 P.2d 1292, 1299 (Alaska 1997) (awarding  

                                                                                                                                                                                                    

damages  for  period  between  wrongful  termination  and  curative  post-termination  

                                                                                                                                                                                 

hearing).  



                                                                                                          -33-                                                                                                   7172
  


----------------------- Page 34-----------------------

               In the Supreme Court of the State of Alaska  



Michael D. Brandner, M.D.,                                                )  

                                                                          )      Supreme Court No. S-15933           

                                   Appellant,                             )  

                                                                          )                    ORDER  

            v.	                                                           )      Withdraw and Reissue Opinion             

                                                                          )  

                                                                                                                              

Providence Health & Services,                                             )      Date of Order:  May 19, 2017  

      

- Washington,	                                                            )  

                                                                          )  

                                   Appellee.                              )  

                                                               

Superior Court No. 3AN-13-07697 CI  



                                                                                                                                                

            Before:	                Stowers, Chief Justice, Winfree and Bolger, Justices.   [Fabe and  

                                                                           

                                   Maassen, Justices, not participating.]  



                                                                                                    

            Having considered Providence Health & Services - Washington's Petition for  



                                                      

Rehearing and Dr. Brandner's response,  



            IT IS  ORDERED  that the Petition for Rehearing is                                   GRANTED, and:   



            1.	        Opinion No. 7135 issued on November 25, 2016, is                                           WITHDRAWN.  



            2.	        Opinion No. 7172 is issued on May 19, 2017, in its place.  

                                                                                                                  



            Entered by direction of the court.  

                                                            



                                                                     Clerk of the Appellate Courts  

                                                                                                              



                                                                                     /s/  

                                                                                            

                                                                     ________________________  

                                                                     Marilyn May  

                                                                                     

cc:	        Supreme Court Justices  

                                        

            Judge Patrick McKay  

                                     

            Trial Court Appeals Clerk  

                                                

            Publishers  



Distribution:   

                        

  

                                                                                                  

            Richard W Maki                                                       Peter Scully
  

                                 

                                                                                                         

            David H Shoup                                                        Robert J Dickson
  

                                                                                                                        

            Tindall Bennett & Shoup PC                                           Atkinson Conway & Gagnon
  

                                                                                                          

            508 W 2nd Ave 3rd Floor                                              420 L St., Ste 500
  

                                          

                                                                                                               

            Anchorage AK 99501                                                   Anchorage AK 99501
  

                                                                                   

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC