Pierson v. Orlando Regional Healthcare Systems

619 F.Supp.2d 1260

Raymond H. PIERSON, III, Plaintiff, and Joanne R. Werntz, Intervenor-Plaintiff, v. ORLANDO REGIONAL HEALTHCARE SYSTEMS, INC.; Erik Lieberman, as personal representative of the Estate of Phillip G. Spiegel; Roger Murbach; Steven Appleblatt; Frank Bone; William Bott; Thomas Csencsitz; J. Dean Cole; John Hillenmeyer; J. David Moser; N. Donald Diebel; Rory Evans; Manuel J. Galceran; Hedrick J. Rivero; C. Gordon Wolfram; Roy W. Sanders; Gregory A. Rief, as co-personal representative of the Estate of John Connolly; Linda G.T. Parks, as co-personal representative of the Estate of John Connolly; Musculoskeletal Institute, Chartered;

Wolverine Anesthesia Consultants, M.D., P.A.; United States of America; National Practitioner Data Bank; Michael O. Leavitt, Secretary of the United States Department of Health & Human Services; Region IV of the Department of Health and Human Services; State of Florida; Florida Health Department; and Florida Board of Medicine; Defendants.

No. 6:08-cv-466-Orl-28GJK.

United States District Court, M.D. Florida, Orlando Division.

April 28, 2009.

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Thomas A. Zehnder, David B. King, Thomas A. Zehnder, King, Blackwell, Downs & Zehnder, PA, W. Scott Gabrielson, Chad K. Alvaro, Mateer & Harbert, PA, Orlando, FL, for Defendants.

ORDER

JOHN ANTOON II, District Judge.

This case arises from what Plaintiff, Raymond H. Pierson, III, characterizes as "a sham, malicious medical peer review." (Am.Compl., Doc. 3, ¶ 1). Plaintiff is an orthopedic surgeon who formerly practiced in Orlando, Florida, and was on the trauma and emergency call schedules at two hospitals operated by Defendant Orlando Regional Healthcare System, Inc. ("ORHS")—Orlando Regional Medical Center ("ORMC") and Sand Lake Hospital ("Sand Lake").¹ In the 73-page, 325-paragraph Amended Complaint, Plaintiff recounts events occurring from 1996 to 2004 that culminated in the passage of a resolution by the ORHS Board indefinitely suspending his emergency and trauma call and consulting privileges.

The nineteen-count Amended Complaint names twenty-six Defendants-ORHS, ORHS's CEO, fifteen individual physicians, two physician groups, and seven governmental entities²—and includes claims ranging from antitrust violations to breach of contract to allegations of unconstitutionality of federal and state statutory provisions.³ Now pending before the Court⁴ are the six motions to dismiss (Docs. 107, 108, 109, 121, 131, & 142) filed by the Defendants.⁵ The Court heard argument on these motions on June 13, 2008 (see Mins., Doc. 150; Hr'g Tr., Doc. 155) and August 5, 2008 (see Mins., Doc. 167; Hr'g Tr., Doc. 199) and now issues the following rulings.

I. Background⁶

The chain of events leading to the suspension of Plaintiff's privileges is described at great length in the Amended Complaint but can be more succinctly summarized as follows. In May 1996, Defendant Diebel, the Chief of Staff,⁷ received two letters—one from Defendant Bott and one from Defendant Csencsitz—expressing concerns over Plaintiff's surgical practices; the letters complained of Plaintiff's late night/early morning surgeries and the length of the surgeries. (Am.Compl. ¶ 61). On May 21, 1996, an Investigation Committee ("IC") comprised of Defendants Bone, Galceran, and Rivero was formed to conduct an in-house review. (Id. ¶ 64). The IC selected three doctors-Defendants Connolly,⁸ Bott, and Evans-to review cases that Plaintiff had conducted from January 1, 1995 on. (Id. ¶ 65).

On October 21, 1996, the IC met and "was presented with a summary of patients whose cases were performed by [Plaintiff] at ORMC and Sand Lake between January 1, 1995 and June 30, 1996." (Id. ¶ 68). "[T]he IC was unable to determine whether it had a basis to . . . suspend [Plaintiff's] trauma and emergency call privileges," so it "asked for an outside review of the cases." (Id. ¶ 72). "In the interim, the IC recommended that [Plaintiff] be summarily suspended and removed from the emergency and trauma call schedule `due to the increased number of trauma patients who have had an extended operating time.'" (Id. ¶ 73). During the five months (May to October) of this initial investigation, Plaintiff was not notified that there was concern about his surgical practices. (Id. ¶ 76).

On November 25, 1996, Defendants Moser and Bott informed Plaintiff in a meeting that he was being investigated and that his trauma and emergency call privileges would be summarily suspended while the hospital conducted a peer review. (Id. ¶ 77). On December 3, 1996, Plaintiff received a letter from the President and CEO of ORHS, Defendant Hillenmeyer, informing him that he had been removed from the trauma and emergency call schedule and from consulting on trauma and emergency patients, pending completion of the investigation. (Id. ¶ 78). Pursuant to the ORHS Bylaws, Plaintiff immediately requested a hearing, but ORHS denied the request on the basis that the IC had not yet made a final report and recommendation. (Id. ¶ 81).

The IC requested an outside review of Plaintiff's cases, and in December 1996 Defendant Moser retained Defendant Spiegel,⁹ who was not on the staff of ORMC or Sand Lake, to conduct that review. (Id. ¶ 83). On February 6, 1997, Defendant Spiegel submitted a 91-page report ("the Spiegel Report"), stating, inter alia, that Plaintiff's performance was not consistent and that the length of Plaintiff's procedures placed patients at increased risk. (Id. ¶¶ 87-88). The Spiegel Report also noted that Plaintiff performed all Emergency Room cases on an urgent or emergent basis. (Id. ¶ 89). Plaintiff was provided with a copy of the Spiegel Report and was invited to meet with the IC before the IC made its next report and recommendation to the Medical Executive Committee ("MEC"). (Id. ¶ 90; see also id. ¶ 105 (defining "MEC")).

Between July 1997 and January 1998, Plaintiff provided the IC with a response to the Spiegel Report, explaining his approach and technique. (Id. ¶ 91). On January 13, 1998, Plaintiff met with the IC to discuss his response. (Id. ¶ 92). After that meeting, the IC "requested a second, `unbiased' review by an academic medical reviewer." (Id. ¶ 93). Plaintiff asked to be permitted to assist in choosing the outside reviewer, but that request went unanswered. (Id. ¶ 94).

Defendant Moser denied the IC's request for a review by an academic reviewer and instead enlisted Defendant Spiegel to review the materials that Plaintiff had submitted to the IC. (Id. ¶¶ 95-96). On November 30, 1998, the four-volume "Spiegel Rebuttal" was provided to Plaintiff. (Id. ¶¶ 96, 98). In December 1998, Plaintiff met with Defendant Wolfram, and Wolfram told Plaintiff that Plaintiff had done nothing wrong in treating patients and that Wolfram "believed no patient suffered adversely" from Plaintiff's care. (Id. ¶ 100). Additionally, Wolfram "intimated that Defendant Csencsitz had expressed the opinion to the Credentials Committee that [Plaintiff] had done nothing wrong and was a good orthopedic surgeon." (Id. ¶ 101). However, "Wolfram, who was in an authority position with ORHS[,] did nothing to call the peer review into question." (Id. ¶ 102).

On July 1, 1999, the IC made another report and recommendation to the Credentials Committee, recommending the continued suspension of Plaintiff's emergency and trauma call and consulting privileges and an ongoing mentoring and peer review. (Id. ¶¶ 103-04). The Credentials Committee seconded this recommendation in a report to the MEC, and on August 30, 1999, the MEC recommended exclusion of Plaintiff from trauma call and emergency department call and that peer review or mentoring of Plaintiff be conducted on an ongoing basis. (Id. ¶ 105). "In response to the MEC recommendation, [Plaintiff] renewed his request for a hearing under the Bylaws." (Id. ¶ 108).

The Hearing Panel commenced a hearing on April 23, 2003¹⁰ and found that Plaintiff was slower than his peers but that his surgical time was not excessive and no harm to patients had been demonstrated. (Id. ¶¶ 109, 119). Additionally, the Hearing Panel found that Plaintiff had a different philosophy than the reviewers regarding the necessity of urgent surgical intervention for some types of injuries but that medical literature supported both views. (Id. ¶ 120). Further, the Hearing Panel expressed surprise that Plaintiff was not counseled or given an opportunity to correct perceived deficiencies before the IC was appointed. (Id. ¶ 122). The Hearing Panel recommended that Plaintiff's privileges be temporarily restored so that his practices could be reviewed by an experienced trauma surgeon. (Id. ¶ 123).

Both Plaintiff and the MEC appealed the Hearing Panel's recommendation. (Id. ¶ 124). On December 12, 2003, Plaintiff was notified that the Appeal Panel recommended that Plaintiff not be placed on emergency call until the MEC determined he was able to work within guidelines; that the MEC verify Plaintiff's surgical procedures during the prior twelve months; that Plaintiff not be placed on emergency or trauma call unless and until the MEC determined he had current clinical competency to handle emergency surgical procedures; and that Plaintiff perform non-emergent elective cases before attempting emergency or trauma cases as appropriate in the best interest of patient care. (Id. ¶ 125).

On January 26, 2004, "the ORHS Board passed a resolution affirming the recommendation to indefinitely maintain a suspension of [Plaintiff's] emergency and trauma call and consulting privileges." (Id. ¶ 126). Plaintiff received notice of the resolution on or after February 3, 2004. (Id. ¶ 128). Once the resolution was passed, ORHS filed a complaint with Defendant Florida Department of Health ("FDH"), which initiated an investigation of Plaintiff's medical license. (Id. ¶ 129). ORHS also filed an Adverse Action Report with Defendant National...