LLOYD D. GEORGE, District Judge.
This matter is before the court on the defendants' motions to dismiss (## 18, 27) the complaint filed by Martin Straznicky, M.D. pursuant to Fed. R. Civ. Pro. 12(b)(6) for failure to state a claim. Straznicky opposes both motions (## 29, 37). The court will grant the motions.
Motions to Dismiss
The defendants' motions to dismiss, brought pursuant to Rule 12(b)(6), challenge whether the plaintiff's complaint states "a claim upon which relief can be granted." In ruling upon these motions, the court is governed by the relaxed requirement of Rule 8(a)(2) that the complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." As summarized by the Supreme Court, a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). Nevertheless, while a complaint "does not need detailed factual allegations, a plaintiff's obligations to provide the `grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id., (citations omitted). In deciding whether the factual allegations state a claim, the court accepts those allegations as true, as "Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Further, the court "construe[s] the pleadings in the light most favorable to the nonmoving party." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007).
Straznicky initiated this action by filing his complaint on April 23, 2009. The following day, he filed a motion for a temporary restraining order and for a preliminary injunction. In so doing, Straznicky attached several exhibits to his motion, including copies of documents referenced in his complaint. The court heard arguments on the TRO motion, denied the motion, and set a hearing on the motion for a preliminary injunction. At the outset of the preliminary injunction hearing, Straznicky requested that the hearing be continued for several weeks.
Straznicky moved to consolidate this matter with two other cases involving doctors and hospitals that are being prosecuted by his counsel.
At a status conference prior to the continued preliminary injunction hearing, the court denied the motion to consolidate, and vacated the preliminary injunction hearing.
Pending before the court are the defendants' motions to dismiss, which Straznicky opposes. This court heard arguments from the parties.
As this matter is before the court on motions to dismiss for failure to state a claim, this factual background relies solely upon the allegations of the complaint, and upon those documents referenced in the complaint which Straznicky submitted to the court with his motion for a temporary restraining order.
On February 2, 2009, a neurosurgeon was performing a spinal procedure on a patient under Straznicky's care. X-rays would be taken during this procedure, but Straznicky did not have a lead shield in the operating room. Straznicky instructed a
In the adjacent operating room, Dr. Hugh Bassewitz (named by Straznicky as a defendant) was performing a surgery that was already in process. Dr. Bassewitz informed the technologist that he could not take the shield. When the technologist informed Straznicky of this, Straznicky then entered the adjacent operating room in which Dr. Bassewitz was performing surgery, and asked Dr. Bassewitz about using the lead shield. Dr. Bassewitz denied Straznicky's request. Nevertheless, Straznicky took the lead shield.
On February 6, 2009, Straznicky received a letter from Drs. Michael L. Gross and Zafir Y. Diamant. The contents of that letter, which are before the court,
The letter then recites a portion of the report received by the Medical Staff leadership:
The letter describes this as "disruptive conduct that caused a distraction for the surgeon, and, thereby caused a probability of danger to the patient."
The letter further notified Straznicky that he could request an "interview" with the Medical Executive Committee "for the purpose of determining whether or not the summary suspension should be terminated pending an evidentiary hearing," and that "[s]uch evidentiary hearing must be simultaneously requested...."
On February 13, Straznicky requested an interview with the Medical Executive Committee, but did not simultaneously request an evidentiary hearing. On February 16, Straznicky amended his request for an interview and requested an evidentiary hearing.
On February 18, the Medical Executive Committee interviewed Straznicky.
On February 19, Straznicky received a letter from Dr. Gross. In the letter,
Straznicky sought, but did not receive, an alternative resolution. He was informed that if he did not sign the Privilege Retention Agreement, his continued suspension would trigger a requirement to report the suspension to the National Practitioner Data Bank (Data Bank).
Straznicky and Dr. Gross signed the Privilege Retention Agreement on March 3, 2009. Dr. Gross informed Straznicky that his privileges were reinstated.
On March 3, Straznicky also asked Desert Springs' CEO, Sam Kaufman, and another individual whether he was under investigation, to which they replied there were "no investigations of any kind regarding or involving him."
On March 26, Straznicky asked the Director of Medical Staff about the status of his privileges. She replied that they were in good standing and without restriction. Straznicky then resigned.
On April 10, 2009, Desert Springs filed an adverse action report regarding Plaintiff in the Data Bank. The report states that the Adverse Action Classification Code as "Voluntary Surrender of Clinical Privilege(s), while under, or to avoid, investigation relating to professional competence or conduct (1635)."
Based upon this alleged conduct, Straznicky alleges a claim for declaratory and injunctive relief, three anti-trust claims, a 42 U.S.C. § 1983 claim, and eight state law claims.
Dr. Bassewitz' Motion to Dismiss
With little difficulty, the court concludes that the complaint must be dismissed as to Dr. Bassewitz. In his complaint, Straznicky makes only two allegations that specifically concern Dr. Bassewitz's conduct. First, that Dr. Bassewitz informed the technologist (sent by Straznicky) that he could not take the lead shield. Second, when Straznicky personally inquired about the lead shield, Dr. Bassewitz "was belligerent and refused to assist" Straznicky. While Straznicky's complaint also contains numerous allegations directed generally at conduct by "Defendants," the context makes clear that much of the alleged conduct cannot be attributed to Dr. Bassewitz. For example, Straznicky alleges that the "Defendants" reported an action taken against him to the Data Bank. Dr. Bassewitz, however, is not an entity who can file such a report. Further, the report itself establishes that it was filed by Desert Springs Hospital. Similarly, Straznicky seeks to hold all defendants, including Dr. Bassewitz, liable for a breach of an implied covenant of good faith and fair dealing. Straznicky, however, does not allege that he entered into any agreement with Dr. Bassewitz or with any defendant other than Desert Springs Hospital. Further, in opposing the motion to dismiss, both in the papers he submitted to the court and in his arguments during the hearing, Straznicky failed to offer any argument or theory suggesting how the allegations of the complaint are sufficient to state a claim for breach of the implied covenant as to Dr. Bassewitz.
Indeed, Straznicky's opposition is the most telling signal of the complaint's failure to state a claim against Dr. Bassewitz. Straznicky introduces his opposition by expressly "tak[ing] liberty to expound on his allegations against Defendant Bassewitz." Opposition to Bassewitz Motion, at 3. Straznicky then goes on to assert that Dr. Bassewitz "participated in peer review activities and controlled, coerced or unduly influenced the decisionmaking [sic] process." Id. Straznicky then recites a lengthy "Statement of Facts" that, while repeating some of the allegations of the complaint, fails to cite to the complaint in support of those allegations. Further, the
Straznicky also concludes, in his opposition, that Dr. Bassewitz "is properly included in the present case because of his role in the professional review activity as defined by HCQIA." Id., at 9. Once again, although this matter is before the court to test the sufficiency of the allegations of his complaint, Straznicky fails to cite to any allegation of his complaint to support this conclusion. As Straznicky has not even offered an argument explaining how the allegations of his complaint state a claim against Dr. Bassewitz, the complaint must be dismissed as to Dr. Bassewitz.
The Other Defendants' Motion to Dismiss
The remaining defendants—Desert Springs Hospital and Medical Center, the Board of Trustees of Desert Springs Hospital, the Medical and Dental Staff of Desert Springs Hospital, Michael Gross, M.D., Zafir Diamont, M.D., and Sam Kaufman— also move to dismiss the complaint. Dr. Bassewitz has filed a joinder in the motion. Accordingly, for clarity, the court will treat the motion as if filed by all defendants.
The first argument raised in the motion is that this court lacks jurisdiction because Straznicky agreed, by signing the Privilege Retention Agreement, that exclusive jurisdiction vested in the Eighth Judicial District Court of the State of Nevada to enforce the Agreement. On initial consideration, the argument is somewhat confusing as the face of the complaint does not indicate that Straznicky brought this suit to enforce the terms of the Privilege Retention Agreement. Indeed, citing to his complaint generally, Straznicky argues that he "has not raised a claim for breach of contract."
The court notes, however, that the defendants refer to Straznicky's motion for a TRO in raising their argument. In support of that motion, Straznicky expressly argued that he was entitled to an injunction because he was likely to succeed on the merits of his claim for breach of contract. Further, his arguments in that motion make clear that the contract at issue was the Privilege Retention Agreement he signed on March 3, 2009. As Straznicky now concedes, however, his complaint lacks a claim for breach of contract. Accordingly, as Straznicky concedes that he has not alleged a claim for breach of contract of the Privilege Retention Agreement, this court has jurisdiction. Nevertheless, the court will duly consider Straznicky's concession—that he has not alleged a claim for breach of contract—when the court decides the motion for a preliminary injunction and must determine whether he is likely to succeed on the merits of the "breach of contract" claim.
The second issue raised by defendants' motion is whether Straznicky's claims, to the extent that they depend upon a determination that Desert Springs was not legally required to file an adverse action report in the Data Bank, are premature because he has not obtained a determination from the Secretary of Health and Human Services that Desert Springs was not legally required to file an adverse action report. Pursuant to the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq., health care entities are legally required to report "accept[ing] the surrender of clinical privileges of a physician (i) while the physician is under an investigation by the entity relating to possible incompetence or improper professional conduct, or (ii) in return for not
The National Practitioner Data Bank Guidebook (Data Bank Guidebook), published by the Secretary, confirms that the Secretary's authority to review a report for accuracy extends to and includes whether the health care entity was legally required to file the report. As summarized in the Guidebook, "[t]he dispute process is not an avenue to ... appeal the underlying reasons of an adverse action affecting the subject's license, clinical privileges, or professional society membership. Neither the merits of ... the appropriateness of, or basis for, an adverse action may be disputed." Data Bank Guidebook at F-1. Rather, "[t]he Secretary reviews disputed reports only for accuracy of factual information and to ensure that the information was required to be reported." Id., at F-3 (emphasis added). "If the Secretary concludes that the report was submitted in error, the Secretary directs that the report be voided from the NPDB." Id., at F-5. Notice is then sent to all entities who have received notice of the disputed report to inform them that the report was voided. Id.
Though Straznicky's complaint is not an example of clarity, his subsequent arguments to the court make clear that he intended some of his claims to be based, at least in part, on his dispute whether Desert Springs was legally required to report that he voluntarily surrendered his clinical privileges while under or to avoid an investigation relating to professional competence or conduct. The Secretary has authority to review whether a report was required to be filed, and has authority to remedy an incorrect filing by voiding a report.
Straznicky's argument that some types of disputes are outside of the Secretary's scope of review is unavailing. Although the Secretary cannot review some types of disputes, the Secretary can review whether an adverse report was required to be reported, and has authority to order that a report be voided if it was not required to be filed. Equally unavailing is Straznicky's argument that procedures exist by which a report can be modified subsequent to a judicial review of the underlying adverse action. The examples provided in the Guidebook reveal that such provisions concern disputes that are outside the scope of the Secretary's review. Straznicky's reliance on the Data Bank Fact Sheet, and his argument that it provides for procedures for attorneys to obtain reports for use in litigation, is also misplaced. Read in context, those procedures make clear that they apply to counsel representing a plaintiff in a malpractice claim against a hospital, and then only after the attorney establishes that the hospital has not disclosed the report despite a discovery request. That a plaintiff may bring a malpractice action against a hospital in federal court does not require a determination that the Secretary is not the appropriate authority to decide whether an adverse report was required to be filed.
The defendants argue that the complaint must be dismissed, with prejudice, to the extent that, as the underlying professional review action met the standards of § 11112(a), they cannot be held liable for damages pursuant to § 11111 of the HCQIA.
Straznicky's opposition does little to assist the court in finding that he has alleged sufficient facts to overcome the presumption that the professional review action did not comply with § 11112(a). Rather, he relies upon a citation to the entirety of his general allegations, and the allegations of Claims 1 and 5 through 9, and summarily asserts he pled sufficient facts. Critically, though Straznicky argues he alleged that the defendants did not provide him with due process, he does not address any of the four § 11112(a) requirements pursuant to which this court must review the propriety of a professional review action. The court, however, will address each of the factors.
The record establishes that the Medical Executive Committee's (MEC) summary suspension of Straznicky meets the first requirement that the MEC reasonably believed that the professional review action was taken to further quality health care. The Notice of Summary Suspension states that the suspension was "taken to reduce a substantial likelihood of imminent impairment of the health or safety of any patient, prospective patient, employee or other person present in the hospital....'" Section 11112(c)(2) implicitly recognizes that a
The second requirement addresses whether a reasonable effort was made to obtain the facts. The fourth requirement addresses whether the MEC could reasonably believe that the facts warranted the imposition of a summary suspension. As the MEC imposed the summary suspension based upon its receipt of a single report, whether the effort to obtain facts was reasonable coincides with the determination whether the MEC reasonably believed those facts warranted summary suspension.
While Straznicky generally argues a lack of due process, his opposition does not cite to any allegation of his complaint suggesting that the MEC did not engage in a reasonable effort to obtain the facts before deciding to summarily suspend him. In this case, the effort to obtain facts before the summary suspension consisted solely of receiving a report of Straznicky's conduct. Thus, this effort was reasonable if the reported facts not only warranted a summary suspension, but if those reported facts warranted such action without any further effort to obtain facts.
Though not argued by Straznicky, the circumstances indicate that the MEC could reasonably rely upon the single report. While the allegations of Straznicky's complaint and the report (at least, that portion cited in the Notice of Summary Suspension) differ in some minor details, the two accounts are remarkably consistent. The consistency indicates the MEC could reasonably rely upon the source of the report as reliable regarding the materially significant events, and that reliance was reasonably placed on the report as a substantially accurate description of those events.
The nature of the conduct reported to the MEC indicated that Straznicky's conduct placed individuals in imminent harm. The court readily concludes that a patient is placed in danger of imminent harm when someone causes the surgeon, who is performing a procedure on a patient, to become visibly disturbed and distracted during the procedure. The removal of protective equipment also constitutes conduct placing someone in imminent harm.
Straznicky argues, elsewhere in his opposition, that his conduct on February 2 "did not create an on-going imminent harm to patients." The argument ignores that past disruptive conduct can be indicative of an underlying characteristic that could
The court would further note that it would reach the same conclusion if Straznicky had reported his conduct, as he has alleged it in his complaint, to the MEC. The MEC could reasonably believe that, in light of Straznicky's conduct as alleged by him, the summary suspension was warranted as the failure to summarily suspend him could result in an imminent harm to the health of any individual.
The remaining, third requirement addresses whether the action was taken after adequate notice and hearing procedures are afforded to the physician, or after such procedures as are fair to the physician under the circumstances. Section 11112(c) expressly recognizes that, when the circumstances warrant an immediate suspension, subsequent notice and hearing or other adequate procedure are to be afforded to the physician. As the court has found that the circumstances warranted a summary suspension, the issue would typically depend upon whether the procedure for subsequent notice and hearing was adequate. That process was initiated, but cut short, by Straznicky's decision to resolve this matter by signing the Privilege Retention Agreement rather than having a hearing.
The procedure that did occur was that Straznicky received a special Notice of Summary Suspension, delivered by hand with a signed receipt required. The Notice indicated the action being taken and the reasons for the action. The Notice informed Straznicky that he could request an interview with the MEC for purposes of determining whether the summary suspension should be terminated pending an evidentiary hearing, provided that he simultaneously requested an evidentiary hearing. Straznicky made this dual request on February 16, and was afforded the interview on February 18. On February 19, the MEC extended an offer to terminate the suspension, including a requirement that Straznicky sign the Privilege Retention Agreement. He did so on March 3. Straznicky was afforded and received an adequate post-suspension procedure.
As Straznicky's complaint does not allege facts rebutting the presumption that his summary suspension was not taken pursuant to the requirements of § 11112(a), and as the allegations of the complaint, as well as the documents relied upon by Straznicky in his complaint, establish that he could not allege facts rebutting the presumption that these standards were met, the court holds that the defendants are entitled to immunity from damages pursuant to § 11111(a) (other than for damages in a civil rights claim). Accordingly, the court will grant the motion and dismiss Straznicky's complaint with prejudice to the extent it seeks monetary damages
The defendants next argue that Straznicky's § 1983 claim must be dismissed, with prejudice, as they are not state actors and did not engage in a state action. Straznicky counters that the defendants' summary suspension and other actions were state actions, subjecting the defendants to § 1983 liability, because Desert Springs may have received Hill-Burton financial assistance, or other funds. To maintain his § 1983 claim, Straznicky must demonstrate both that he was deprived of a right secured by the Constitution or laws of the United States, and that the defendants acted under color of state law. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.2003), citing West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Although a § 1983 action cannot generally be brought against a private party, "a § 1983 action can lie against a private party when `he is a willful participant in joint action with the State or its agents.'" Id., quoting Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980).
Straznicky fails to cite to any decision of the Ninth Circuit suggesting that a private hospital's receipt of Hill-Burton funds renders the hospital a state actor (or causes its actions to be state actions) for purposes of § 1983. Straznicky's citation to Duffield v. Charleston Area Medical Ctr., Inc., 503 F.2d 512 (4th Cir.1974), for this proposition is not well-taken by the court. The Fourth Circuit expressly overruled Duffield on this issue in Modaber v. Culpeper Memorial Hosp., Inc., 674 F.2d 1023, 1025 (4th Cir.1982) (overruling the holding that mere receipt of federal assistance under the Hill-Burton Act makes recipient's acts state actions).
Freilich v. Upper Chesapeake Health, Inc. 313 F.3d 205, 214 n. 3 (4th Cir.2002).
Straznicky also relies upon Klinge v. Lutheran Charities Ass'n of St. Louis, 523 F.2d 56 (8th Cir.1975) for the same proposition: that a private hospital that receives Hill-Burton funds engages in state action when it removes a physician from staff. The issue, however, was never decided in Klinge. Rather, throughout the case, the court reiterated that no claim was made that the hospital's action was not state action. Id., at 60-61. Consequently, the uncontested assumption of jurisdiction is entitled to little weight as a precedent that a private hospital's receipt of Hill-Burton funds renders its actions to be state actions.
As Straznicky has not alleged any facts, or cited to any decision, suggesting that the actions of a private hospital become state actions upon receipt of Hill-Burton financial assistance, the court will dismiss his § 1983 claim with prejudice.
Therefore, for good cause shown,
Dr. Martin Straznicky's claims (other than his claim for Declaratory and Injunctive Relief, and his 42 U.S.C. § 1983 claim) are DISMISSED with prejudice as to each defendant to the extent each claim seeks to hold defendants liable for monetary damages arising from the professional review action taken against Dr. Martin Straznicky;
FURTHER, Dr. Martin Straznicky's 42 U.S.C. § 1983 claim is DISMISSED with prejudice as to each defendant;
FURTHER, to the extent that Dr. Martin Straznicky's claims arise from the filing of the National Physician's Data Bank Report, and have not been dismissed with prejudice, such claims are dismissed without prejudice as to each defendant as premature;
FURTHER, to the extent Dr. Martin Straznicky's federal claims have not been dismissed with prejudice, or have not been dismissed without prejudice as premature, those claims are dismissed without prejudice as to each defendant;
FURTHER, to the extent Dr. Martin Straznicky's state claims have not been dismissed with prejudice, those claims are dismissed without prejudice as to each defendant as the court declines to exercise supplemental jurisdiction over those claims.
THE COURT FURTHER