classifying the hospital board’s vote as “professional review action” and concluding that “[a]ll other actions constitute ‘professional review activity’ and as such are not subject to separate scrutiny under § 11112(a)”
How later courts described this case
- classifying the hospital board’s vote as “professional review action” and concluding that “[a]ll other actions constitute ‘professional review activity’ and as such are not subject to separate scrutiny under § 11112(a)”
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
May 5, 2009 Session
MARCEL ELUHU, M.D. v. HCA HEALTH SERVICES OF TENNESSEE,
INC., D/B/A CENTENNIAL MEDICAL CENTER
Appeal from the Chancery Court for Davidson County
No. 05-1012-I Claudia Bonnyman, Chancellor
No. M2008-01152-COA-R3-CV - Filed October 27, 2009
Cardiologist whose hospital privileges were revoked brought suit against the hospital asserting
multiple causes of action, including breach of contract. Finding the hospital entitled to immunity
under the Health Care Quality Improvement Act and the Tennessee Peer Review Law, the chancellor
granted the hospital’s motion for summary judgment on all claims for monetary damages. The court
subsequently granted the hospital’s motion for summary judgment on all remaining claims for
injunctive and declaratory relief. We have concluded that the court erred in granting summary
judgment on the claims for injunctive relief other than the breach of contract claims. Otherwise, we
affirm the trial court’s decision.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed In Part,
Reversed in Part
ANDY D. BENNETT , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, P.J., M.S.,
and FRANK G. CLEMENT , JR., J., joined.
C. Bennett Harrison, Jr., Brian Holmes, and Jay N. Chamness, Nashville, Tennessee, for the
appellant, Marcel Eluhu, M.D.
Dixie W. Cooper, Lisa D. York, Clarence James Gideon, and Catherine Corless, Nashville,
Tennessee, for the appellee, HCA Health Services of Tennessee, Inc., d/b/a Centennial Medical
Center.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND
Dr. Marcel Eluhu is a cardiologist who was first granted provisional privileges at Centennial
Medical Center (“CMC”) in 1989 and soon became a member of the attending medical staff. Dr.
Eluhu thereafter received additional training in interventional cardiology and, after obtaining board
certification, was granted unrestricted privileges to practice cardiovascular medicine at CMC in
1998. Dr. Eluhu also had privileges at a number of other hospitals in the Nashville area.
In January 1999, another cardiologist at CMC submitted a complaint against Dr. Eluhu to
CMC’s Medical Executive Committee (“MEC”). Dr. Eluhu disputed the accusations in the
complaint and pursued the matter through the fair hearing procedure established by the hospital’s
bylaws. The fair hearing panel adopted the MEC’s recommendation that Dr. Eluhu be required to
complete fifty proctored cases in order to maintain his privileges. CMC’s board of trustees agreed.
Dr. Eluhu successfully completed the proctoring process, and his privileges were fully reinstated in
May 2001.
The events at issue in the present case occurred in October 2003. While there are factual
disputes between the parties concerning these events, we will attempt to summarize the basic,
undisputed facts concerning the two cases out of which the complaints against Dr. Eluhu arose.1 Ms.
B came into the CMC emergency room early on Saturday morning, October 25, 2003. The patient
went into cardiogenic shock. Dr. Eluhu, the cardiologist on call, performed an emergency procedure
in the cardiac catheterization lab to open Ms. B’s arteries. Shortly after the procedure, Ms. B
developed a hematoma, and Dr. Eluhu instructed the nurses about treating this bleeding. After Dr.
Eluhu left the hospital, the bleeding worsened, and the nurses were unable to stop it. One of the
nurses called Dr. Eluhu, who ordered a vascular consultation. Dr. John Keyser, a vascular surgeon,
was called. Dr. Keyser and Dr. Eluhu arrived at the hospital at about the same time. Dr. Keyser
successfully repaired a leak in Ms. B’s femoral artery. Based upon information he received from a
nurse, it was Dr. Keyser’s understanding that Dr. Eluhu had initially refused to return to the hospital
when called.
The same day, October 25, 2003, Ms. F presented to the CMC emergency room with chest
pain. She was admitted under Dr. Eluhu’s care, and he first saw her early Sunday morning, October
26, 2003. That afternoon, Ms. F went into cardiac arrest, and Dr. Eluhu performed an emergency
procedure using an aortic balloon pump. The nurses assisting with the procedure had trouble getting
the balloon pump to work properly. Ms. F developed a cardiac complication, and Dr. Keyser was
again called in for consultation. Dr. Keyser asked Dr. Eluhu to go talk with Ms. F’s family. After
reviewing the case, Dr. Keyser determined that surgery was not a viable option in light of Ms. F’s
overall condition. Dr. Keyser became frustrated because Ms. F’s family had been left with the
impression, presumably from Dr. Eluhu, that Ms. F would not survive without surgery. Ms. F’s
condition stabilized without surgery, but she died a few weeks later from serious cardiac problems.
Dr. Keyser informed Dr. Eluhu that he would no longer consult on Dr. Eluhu’s cases.
On Monday, October 27, 2003, Dr. Keyser spoke with Dr. Robert Alford, CMC’s medical
director, to discuss his concerns about Dr. Eluhu’s two cases on which he had consulted over the
weekend. Dr. Keyser described the events to Dr. Alford, noting that both cases involved serious
1
As will be discussed more fully below, we resolve any factual disputes in favor of the plaintiff in our
consideration of the defendant’s motions for summary judgment.
2
vascular complications, and informed him that he did not want to consult on any of Dr. Eluhu’s cases
in the future. One of Dr. Keyser’s main concerns was the difficulty he experienced in
communicating with Dr. Eluhu.2 He did not ask that any corrective action be taken.
On October 30, 2003, Dr. Alford then discussed the cases with Dr. Louis Johnson, chairman
of CMC’s MEC. Dr. Johnson sent a letter to Dr. Jeffrey Webber, chair of CMC’s Department of
Cardiovascular Medicine, “formally requesting on behalf of the MEC that you form an ad hoc
committee to investigate the circumstances regarding care provided two patients on October 25,
2003, by Marcel Y. Eluhu, M.D.” Dr. Johnson summarized the two patient care issues raised by Dr.
Keyser as follows:
• Lack of Dr. Eluhu’s availability and direction for staff caring for patients
having complications of procedures performed by Dr. Eluhu
• Failure of Dr. Eluhu to provide appropriate physician-to-physician
communication in requesting consultation to assist in managing major
complications
Dr. Webber and Dr. Johnson together decided that while the investigation was going on, Dr.
Eluhu’s emergency room privileges would be summarily suspended. They sent a letter dated
October 31, 2003, to Dr. Eluhu informing him that his ER call was summarily suspended “[b]ecause
of concerns regarding complications arising in two of your patients who underwent emergency
cardiac catheterizations on October 25/26, 2003.” The suspension was to last “until an investigation
of the events surrounding these complications can be brought to a satisfactory conclusion.” The
letter provided that the summary suspension was being undertaken due to “actions detrimental to
patient safety or to the delivery of quality or efficient patient care” pursuant to Article X, Section
10.1.B of the CMC bylaws. The letter informed Dr. Eluhu of his right to request a hearing and gave
a brief summary of the fair hearing procedures under the bylaws, which were enclosed with the letter.
Dr. Webber organized an ad hoc committee (“AHC”), which proceeded to investigate the two
cases referred to it by the MEC. The AHC consisted of five doctors, including one cardiologist, and
was chaired by Dr. Paul Seitz, an anesthesiologist. The committee met once in November and on
December 4, 2007, reviewed the available medical records and interviewed Dr. Keyser and Dr.
Eluhu. In its report to the MEC, the AHC summarized the statements of Dr. Keyser and Dr. Eluhu
and stated the following conclusions:
1. There was no evidence Dr. Eluhu abandoned his patients. Poor communication
and miscommunication between Drs. Keyser and Eluhu was evident.
2
Dr. Eluhu is from the Democratic Republic of Congo. Dr. Keyser’s frustrations in communicating with Dr.
Eluhu seem to have stemmed in part from a language barrier.
3
2. The committee identified serious quality of care concerns with Dr. Eluhu’s
management of both patients. There were specific technical performance issues
related to the cardiac catheterizations and the development of bleeding
complications. A delayed initial ICU assessment of an unstable acute coronary
patient, the absence of timed documentation, the assessment or acknowledgement of
life-threatening bradycardic episodes (the patient subsequently suffered a
bradycardiac arrest), altered medical records to conceal information, and failure to
re-assess an anticoagulated post-cardiac cath patient with a post-procedure hematoma
complication before leaving the hospital were examples of quality of care concerns.
3. Though not a focus of this committee we were also concerned with poor ICU
nursing service documentation during Ms. F’s initial ICU course. There were few
nursing notations, delayed reporting (over 8 hours), no documentation of MD
notification of serious bradycardic episodes, and no physician order for the atropine
treatment rendered, for example.
While deferring to the MEC regarding the appropriateness of corrective action, the AHC stated that
“further evaluation of the serious quality of care issues raised by Dr. Eluhu’s management of these
patients is warranted.”
The MEC met on December 5, 2003. In its report, the MEC adopted the AHC’s report and
summarily suspended all of Dr. Eluhu’s privileges. The MEC recommended to the hospital’s board
of trustees that Dr. Eluhu’s medical staff membership be revoked. In a letter dated December 10,
2003, Dr. Johnson informed Dr. Eluhu of the MEC’s decision and of his right to a hearing. The
letter includes the following statements:
The MEC unanimously concurred with the finding [of the AHC] indicating
inadequate performance and judgment resulting in patient harm in the two cases at
issue. The MEC further took into account earlier instances of questionable patient
care on your part.
According to the letter, the MEC decided to summarily suspend Dr. Eluhu’s privileges and to
recommend revocation of medical staff membership “because failure to do so might result in
imminent danger to the health of such patients at Centennial.” Dr. Eluhu requested a hearing, and
his attorney contacted CMC’s attorneys for more information concerning the issues to be presented
at the hearing.
On January 12, 2004, Dr. Webber wrote Dr. Eluhu a letter informing him that two of his
cases “failed departmental quality screens” and received the highest severity rating. Dr. Eluhu was
given 30 days to provide additional information regarding these cases and the severity ratings. Dr.
Eluhu’s attorney sent a letter dated January 29, 2004, to CMC’s attorneys asking for more specific
information regarding the peer review conclusions “so that Dr. Eluhu may properly respond.”
4
On February 12, 2004, the CMC attorneys sent Dr. Eluhu’s attorney a letter detailing the
conclusions of the peer reviewer concerning Ms. B’s case and Ms. F’s case. On the same day, the
CMC attorneys also sent Dr. Eluhu’s attorney a ten-page letter responding to Dr. Eluhu’s requests
for documentation and for a summary of the issues to be addressed at the hearing. Included with the
letter was data concerning Dr. Eluhu’s complication rates from 2000 to 2003 with comparative data
for the cardiovascular department. The issues to be addressed at the hearing were grouped into three
categories: (1) Dr. Eluhu’s care and treatment of Ms. B, (2) his care and treatment of Ms. F, and (3)
his “lack of judgment, competence, skill, and technique.” With respect to both Ms. B and Ms. F, the
letter summarized the relevant sequence of events, identified quality of care issues with respect to
Dr. Eluhu’s actions, and discussed the hospital’s position as to the applicable bylaws. As to the third
category of issues, the letter set forth CMC’s position as to the relevant bylaws and its intent to prove
that “Dr. Eluhu’s judgment, technique, skill, and competence are not sufficient to qualify for Medical
Staff membership at Centennial Medical Center.” In its letter, CMC specifically referenced the
comparative data and the hospital’s previous requirement that Dr. Eluhu complete a preceptorship.
Prior to the hearing, the parties exchanged witness and exhibit lists.
Fair Hearing
The fair hearing took place on February 24 and 25, 2004. The fair hearing committee
(“FHC”) consisted of four physicians.3 The MEC presented the following witnesses: Dr. Alford, Dr.
Webber, Dr. Keyser, Dr. John Bright Cage (a cardiologist), Lynne Blair-Anton (a nurse who worked
in the catheterization lab during the October 2003 incidents), and Marian Mosby (a nurse and CMC’s
quality coordinator, who testified about the hospital’s collection of data and compilation of
comparative data). Dr. Eluhu presented the following witnesses: Dr. Eluhu, Dr. James Potts (a
cardiologist at Meharry Medical College), Dr. Robert Piana (a cardiologist at Vanderbilt University
Medical Center), Dr. Carlton Adams (a member of the AHC), and Theodore Addai (chief of
cardiology at Meharry Medical Center and Nashville General Hospital).
The FHC concluded that the preponderance of the evidence did not indicate that the MEC’s
recommendations lacked any substantial basis or were arbitrary, unreasonable, or capricious. The
FHC also went further:
[T]he evidence presented to the [FHC] was more extensive than that presented to the
MEC when it made its recommendation. Further, the investigation into the facts
performed by the attorneys for the parties was more extensive than the investigation
performed by the Ad Hoc Committee which reported to the MEC. Based on its
access to information of greater depth and quantity than the MEC had, the [FHC] has
chosen to offer recommendations for disciplinary action against Dr. Eluhu
independent of the actions taken by the MEC.
3
The FHC originally had a fifth member, but that physician was excused because of his previous participation
in the matter as a member of the MEC. The parties agreed to proceed with only four panel members.
5
The FHC offered alternative recommendations: (1) complete revocation of Dr. Eluhu’s privileges
at CMC, or (2) a lesser degree of sanction involving, at a minimum, permanent revocation of Dr.
Eluhu’s privileges in invasive cardiology; mandatory assessment by the Tennessee Medical
Foundation to rule out organic causes for his behavior; a two-year probation period during which he
would agree to forfeit his right to a fair hearing in the event of further corrective action; and a
focused review by the CMC quality assurance department of his activity during the probationary
period.
In its report, the FHC also explained that discrepancies in the evidence, Dr. Eluhu’s
introduction of inaccurate information into the medical record, and the similarity of the issues
presented to those involved in the previous fair hearing panel “led the Panel to doubt the candor of
Dr. Eluhu’s testimony before the panel.” The FHC report includes the following findings:
1. Ms. B. The panel determined that Dr. Eluhu’s decision to gain arterial access
through the right femoral artery in the setting of this patient’s clinical history, his
handling of the patient’s post procedure care, and his initial response upon being
notified of this patient’s post procedure clinical circumstances were below the
standard of care of Centennial Medical Center.
2. Ms. F. The panel determined that Dr. Eluhu either failed to recognize, or failed
to appropriately respond to a significant vascular injury in the early phase of his
catheterization procedure. In addition, the panel determined that the length of time
between Ms. F’s admission to the CCU and the documented evidence of his first on
premises contact with her and the care he provided during this extended period of
time were suboptimal. The panel determined these events to be below the standard
of care of Centennial Medical Center.
3. The panel determined that Dr. Eluhu intentionally entered inaccurate written and
inaccurate dictated information into the medical record with respect to the vascular
injury sustained by Ms. F.
4. The panel recognized that the events concerning the above patients cannot be
viewed as isolated events out of the context of Dr. Eluhu’s broader practice. Dr.
Eluhu’s physician profile, in addition to the specific cases leading to his prior
reduction of privileges, contains numerous instances of complications and either
marginal or suboptimal patient care spanning many years. His current QA data
suggest a higher complication rate than is present within the department as a whole.
Several of the suboptimal care issues identified by this panel are similar to the issues
addressed at his prior fair hearing. This is viewed by the panel as a failure on the part
of Dr. Eluhu to improve his patient care practices despite the previous in good faith
efforts undertaken by Centennial Medical Center to focus his attention on his
deficiencies in this regard.
6
5. Given the numerous contradictions between Dr. Eluhu’s testimony and both the
testimony of others and the medical record, the panel determined that Dr. Eluhu was
not candid, and likely intentionally misleading, in his testimony before the Panel.
6. The Panel determined, based upon Dr. Eluhu’s testimony, that he had little or no
insight into the fundamental deficiencies in his patient management practice patterns
that lead to adverse clinical events such as those that occurred with Ms. B and Ms.
F.
Dr. Eluhu requested an appeal of the MEC’s decision, which was reviewed by an appellate
review committee (“ARC”). In a report issued on August 2, 2004, the ARC “affirm[ed] the MEC’s
recommendation that Dr. Eluhu’s privileges be terminated.” On August 5, 2004, the CMC board
of trustees approved the ARC’s recommendation to accept the MEC’s recommendation that Dr.
Eluhu’s medical staff privileges be terminated. On August 17, 2004, CMC reported the revocation
of Dr. Eluhu’s privileges to the National Practitioner Data Bank.
Lawsuit
Dr. Eluhu filed this action against HCA Health Services of Tennessee, Inc., d/b/a CMC, on
April 21, 2005. He alleged causes of action for breach of contract/CMC’s bylaws, breach of implied
duty of good faith and fair dealing, defamation, common law disparagement, statutory disparagement
under the Tennessee Consumer Protection Act, and intentional interference with existing and
prospective business relationships. The complaint sought monetary damages as well as declaratory
and injunctive relief. The court denied CMC’s motion to dismiss the claims for defamation and
common law and statutory disparagement but ordered Dr. Eluhu to clarify the allegations related to
those claims. Dr. Eluhu therefore filed an amended complaint on September 19, 2005. CMC then
filed an answer and a counterclaim asserting that Dr. Eluhu breached his contract with CMC by filing
the lawsuit.
On November 13, 2006, after discovery, Dr. Eluhu filed an application for a temporary
injunction requesting that the court compel CMC to reinstate his privileges at CMC and revise or
retract its report to the national data bank. After a hearing in December 2006, the court denied Dr.
Eluhu’s request for a temporary injunction. The court later entered an order adopting findings of fact
and conclusions of law regarding its denial of the temporary injunction. After reviewing the
evidence and the bylaws, the court concluded that “the Fair hearing, the process leading up to the
Fair hearing and the subsequent appellate review were not arbitrary, capricious or unreasonable.”
The court did not find that CMC had breached its bylaws. The court determined that it was unlikely
that Dr. Eluhu’s claims would succeed on the merits. While finding that there was irreparable harm
to Dr. Eluhu’s reputation and ability to earn money, the court balanced this harm against harm to the
hospital and the public interest and concluded that the public interest would not be served by the
issuance of an injunction to reinstate Dr. Eluhu’s privileges.
7
CMC filed a motion for summary judgment asserting its immunity from actions for monetary
damages pursuant to the Health Care Quality Improvement Act and the Tennessee Peer Review Law.
The court granted the motion for summary judgment with respect to all claims for damages. The
court stated that “any material factual disputes in this case are about medical judgment” and that
“medical judgment differences do not remove the immunity provided by the legislature.”
On May 7, 2007, CMC filed a motion for summary judgment on the remaining claims for
injunctive and declaratory relief. The court granted the motion. On May 1, 2008, the court entered
an agreed order voluntarily dismissing CMC’s counterclaim against Dr. Eluhu.
ISSUES ON APPEAL
Dr. Eluhu asserts that the trial court erred (1) in granting summary judgment as to money
damages, (2) in granting summary judgment on the claims for injunctive and declaratory relief, and
(3) in denying his application for a temporary injunction.
STANDARD OF REVIEW
We begin by setting out the standard of review generally applicable to a grant of summary
judgment. However, with respect to the claims for monetary damages in this case, that standard of
review will be modified, as discussed below, because of the provisions of the Health Care Quality
Improvement Act and the Tennessee Peer Review Law.
In reviewing a summary judgment, this court must make a fresh determination that the
requirements of Tenn. R. Civ. P. 56 have been satisified. Hunter v. Brown, 955 S.W.2d 49, 50
(Tenn. 1997). The party seeking summary judgment bears the burden of demonstrating that no
genuine disputes of material fact exist and that the party is entitled to judgment as a matter of law.
Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). We must take the strongest legitimate view of
the evidence in favor of the nonmoving party, allow all reasonable inferences in favor of that party,
and discard all countervailing evidence. Id.; Byrd v. Hall, 847 S.W.2d 208, 210-11 (Tenn. 1993).
If there is a dispute as to any material fact or if there is any doubt as to the existence of a material
fact, summary judgment cannot be granted. Byrd, 847 S.W.2d at 211; EVCO Corp. v. Ross, 528
S.W.2d 20, 25 (Tenn. 1975). To shift the burden of production to the nonmoving party who bears
the burden of proof at trial, a moving party must negate an element of the opposing party’s claim or
“show that the monmoving party cannot prove an essential element of the claim at trial.” Hannan
v. Alltel Publ’g Co., 270 S.W.3d 1, 9 (Tenn. 2008).
The Health Care Quality Improvement Act (“HCQIA”) and the Tennessee Peer Review Law
(“TPRL”) establish a presumption that the participants in peer review actions are entitled to
immunity from monetary damages. 42 U.S.C. § 11112(a); Tenn. Code Ann. § 63-6-219(d)(3);
Peyton v. Johnson City Med. Ctr., 101 S.W.3d 76, 78 (Tenn. Ct. App. 2002). The plaintiff can rebut
this presumption by a preponderance of the evidence. 42 U.S.C. § 11112(a); Peyton, 101 S.W.3d
at 78. The effect of this presumption of immunity is to shift the burden of production to the plaintiff
8
to show that the hospital failed to meet the standards for HCQIA or TPRL immunity. See Curtsinger
v. HCA, Inc., No. M2006-00590-COA-R3-CV, 2007 WL 1241294, at *5 (Tenn. Ct. App. Apr. 27,
2007); Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 32-33 (1st Cir. 2002). As a result
of this presumption, the standard of review applicable to a grant of summary judgment under the
HCQIA and TPRL is unusual: “[A]lthough the defendant is the moving party, we must examine the
record to determine whether the plaintiff ‘satisfied his burden of producing evidence that would
allow a reasonable jury to conclude that the Hospital’s peer review disciplinary process failed to
meet the standards of HCQIA.’”4 Curtsinger, 2007 WL 1241294, at *5 (quoting Brader v. Allegheny
Gen. Hosp., 167 F.3d 832, 839 (3rd Cir. 1999) (quoting Bryan v. James E. Holmes Reg’l Med. Ctr.,
33 F.3d 1318, 1334 (11th Cir. 1994))). Despite this shifting of the burden of production, this court
must still view the facts in the light most favorable to the plaintiff, the nonmoving party. Stratienko
v. Chattanooga-Hamilton County Hosp. Auth., No. 1:07-CV-258, 2008 WL 4191275, at *4 (E.D.
Tenn. Sept. 8, 2008) (citing Singh, 308 F.3d at 32).
A trial court’s issuance or nonissuance of injunctive relief is reviewed under an abuse of
discretion standard. Bd. of Comm’rs v. Parker, 88 S.W.3d 916, 919 (Tenn. Ct. App. 2002). An
abuse of discretion occurs when a trial court reaches a decision contrary to logic that causes harm
to the complaining party or applies an incorrect legal standard. Eldridge v. Eldridge, 42 S.W.3d 82,
85 (Tenn. 2001). The trial court’s decision will be upheld “so long as reasonable minds can disagree
as to the propriety of the [trial court’s] decision.” Id. (quoting State v. Scott, 33 S.W.3d 746, 752
(Tenn. 2000)).
MONETARY DAMAGES
CMC’s first motion for summary judgment was based upon the hospital’s immunity from
liability under the Health Care Quality Improvement Act and the Tennessee Peer Review Law. This
court recently noted that the requirements of the Tennessee Peer Review Law are “essentially
identical” to the requirements of the Health Care Quality Improvement Act. Curtsinger, 2007 WL
1241294, at *5 n.1 (quoting Ironside v. Simi Valley Hosp., 188 F.3d 350, 353-54 (6th Cir. 1999)).
On appeal, Dr. Eluhu confines his immunity analysis to the standards of the Health Care Quality
Improvement Act.
Congress enacted the Health Care Quality Improvement Act, 42 U.S.C. §§ 11101 through
11152, in 1986 “to encourage self-policing by healthcare professionals in response to what it
determined to be a crisis.” Curtsinger, 2007 WL 1241294, at *13. Congress found that “[t]he
increasing occurrence of medical malpractice and the need to improve the quality of medical care
have become nationwide problems that warrant greater efforts than those that can be undertaken by
any individual State.” 42. U.S.C. § 11101(1). The threat of litigation often deterred effective
4
In Hannan v. Alltel Publishing Co., our Supreme Court enunciated a new standard for determining when a
party moving for summary judgment has shifted the burden of production to the nonmoving party. Hannan, 270 S.W .3d
at 9-10. Because we are dealing with HCQIA/TPRL immunity, however, the burden of production automatically shifts
to the plaintiff.
9
hospital peer review. 42 U.S.C. § 11101(4); Bryan, 33 F.3d at 1321. As this court has previously
recognized, “[i]n order to encourage the type of peer review that would expose incompetent
physicians, the HCQIA shields health care entities and individual physicians from liability for
damages for actions performed in the course of monitoring the competence of health care personnel.”
Curtsinger, 2007 WL 1241294, at *13.
Under the HCQIA, if a “professional review action” meets certain requirements, those
participating in the review process are entitled to immunity from monetary damages under any state
or federal law. 42 U.S.C. § 11111(a)(1). A “professional review action” is defined as follows:
[A]n action or recommendation of a professional review body which is taken or made
in the conduct of professional review activity, which is based on the competence or
professional conduct of an individual physician (which conduct affects or could
affect adversely the health or welfare of a patient or patients), and which affects (or
may affect) adversely the clinical privileges, or membership in a professional society,
of the physician.
42 U.S.C. § 11151(9). “Professional review activity” is defined as:
[A]n activity of a health care entity with respect to an individual physician–
(A) to determine whether the physician may have clinical privileges with respect to,
or membership in, the entity,
(B) to determine the scope or conditions of such privileges or membership, or
(C) to change or modify such privileges or membership.
42 U.S.C. § 11151(10). There is no dispute in this case that CMC qualifies as a professional review
body.5 There is, however, a difference in interpretation as to how many professional review actions
are at issue.
Dr. Eluhu asserts that there are four separate professional review actions that must each meet
all of the HCQIA requirements in order for immunity to apply: (1) the summary suspension of his
ER privileges; (2) the AHC’s recommendations; (3) the MEC’s decision to suspend all of Dr.
Eluhu’s privileges and recommend permanent revocation; and (4) the FHC’s recommendation to
uphold the MEC’s recommendation. In arguing in favor of four professional review actions, Dr.
Eluhu focuses on the precise language of the statutory definition, which refers to “an action or
5
There is no dispute that CMC qualifies as a “professional review body” as defined at 42 U.S.C. § 11151(11):
“a health care entity and the governing body or any committee of a health care entity which conducts professional review
activity, and includes any committee of the medical staff of such an entity when assisting the governing body in a
professional review activity.”
10
recommendation . . . which affects (or may affect) adversely the clinical privileges.” 42 U.S.C. §
11151(9). Taken literally, the statutory reference to “recommendation” seems to encompass each
separate step of the peer review process at which any type of recommendation is made. However,
as noted by the court in Mathews v. Lancaster General Hospital, “there must be some distinction
between ‘professional review activity’ and ‘professional review action’ or Congress would not have
used two separate terms to refer to deeds done in connection with the peer review process.”
Mathews, 883 F. Supp. 1016, 1028 (E.D. Pa. 1995). The Mathews court addressed the meaning of
“professional review action” and “professional review activity” in detail and, reading all of the
statutory provisions together, came to the following conclusion: “[T]he term ‘professional review
activity’ refers to preliminary investigative measures taken in ‘a reasonable effort to obtain the facts’
relevant to a possible change in a physician’s privileges, while the term ‘professional review action’
refers to the decision that results from a review of the facts obtained.” Id. at 1027; see also Meyers
v. Logan Mem’l Hosp., 82 F. Supp. 2d 707, 713-14 (W.D. Ky. 2000) (classifying the hospital board’s
vote as “professional review action” and concluding that “[a]ll other actions constitute ‘professional
review activity’ and as such are not subject to separate scrutiny under § 11112(a)”). The Mathews
court found that the type of interpretation urged in this case by Dr. Eluhu “is unworkable when
viewed in conjunction with other statutory provisions.” Mathews, 883 F. Supp. at 1028. We agree.
Applying the above analysis, we conclude that there are three professional review actions at
issue in this case: the summary suspension of Dr. Eluhu’s ER privileges, the summary suspension
of all of Dr. Eluhu’s privileges at CMC, and the permanent revocation of his privileges at CMC. See
Stratienko, 2008 WL 4191275, at *2-3 (classifying a summary suspension as a professional review
action). The AHC was an investigative committee of the MEC and reported to the MEC. Dr. Eluhu
focuses on the “recommendations” of the AHC as warranting separate scrutiny. In fact, the AHC
made no formal recommendations but identified additional quality of care concerns, an appropriate
part of the investigative process. Moreover, even if the AHC made recommendations, its activities
would not constitute professional review actions. The final decision concerning permanent
revocation of Dr. Eluhu’s privileges was made by the board of trustees after the FHC conducted a
hearing regarding the MEC’s recommendations.
For immunity to apply, the HCQIA requires that the professional review action be taken as
follows:
(1) in the reasonable belief that the action was in 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
11
(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).
42 U.S.C.A. § 11112(a). The reasonableness required under § 11112(a) is evaluated under an
objective standard. Curtsinger, 2007 WL 1241294, at *6. The good faith or bad faith of the
reviewers is irrelevant. Peyton, 101 S.W.3d at 84. The HCQIA creates a presumption that these
standards have been met unless the presumption is rebutted by a preponderance of the evidence. 42
U.S.C. § 11112(a).
Thus, “a plaintiff has the burden of demonstrating, by preponderance of the evidence, that
the requirements of § 11112(a) have not been met in his peer review.” Stratienko, 2008 WL
4191275, at *3. Since this case was decided at the summary judgment stage, we must determine
whether “a reasonable jury, viewing the facts in the best light for [the plaintiff], [might] conclude
that [the plaintiff] has shown, by a preponderance of the evidence, that the [defendant’s] actions are
outside the scope of § 11112(a).” Singh, 308 F.3d at 32.
A. Reasonable belief action was in furtherance of quality health care.
Were the two summary suspensions and the permanent revocation of Dr. Eluhu’s privileges
taken based upon a reasonable belief that these actions were in furtherance of quality health care?
We must consider whether “the reviewers, with the information available to them at the time of the
professional review action, would reasonably have concluded that their action would restrict
incompetent behavior or would protect patients.” Bryan, 33 F.3d at 1323.
Dr. Eluhu does not argue that the initial summary suspension of his ER privileges was not
made in a reasonable belief that this action was in furtherance of quality health care. We therefore
proceed to consider the summary suspension of all of Dr. Eluhu’s hospital privileges by the MEC.
This action was taken pursuant to § 10.3A. of the hospital’s bylaws, a section that authorizes the
MEC to summarily suspend a practitioner’s privileges “whenever failure to take such an action may
result in an imminent danger to the health of any individual.” The HCQIA contains special
provisions with respect to summary suspensions. See 42 U.S.C. § 11112(c). In the present case, the
pertinent statutory exception provides as follows:
For purposes of section 11111(a) of this title, nothing in this section shall be
construed as–
....
(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.
42 U.S.C. § 11112(c). While this exception applies most directly to the notice requirements of §
11111(a)(3), the statutory language “implicitly recognizes that a professional review body can
12
reasonably believe that this type of action [a summary suspension] furthers quality health care.”
Straznicky v. Desert Springs Hosp., No. 2:09-cv-00731-LDG (RJJ), 2009 WL 1905298, at *8 (D.
Nev. July 1, 2009).
Dr. Eluhu argues that there is a genuine issue of material fact as to whether the MEC
reasonably believed that its actions were in furtherance of quality health care. He points out that the
AHC report, which formed the basis for the MEC’s actions, found “no evidence Dr. Eluhu
abandoned his patients.” The AHC report did, however, identify quality of care concerns warranting
further evaluation. Dr. Eluhu faults the MEC’s alleged failure to further evaluate these quality of
care issues, but has presented no evidence to rebut the presumption that the MEC based its decision
on a reasonable belief that summary suspension would further quality health care. Dr. Eluhu further
faults the MEC for failing to call witnesses; this argument ignores the fact that the AHC, the
investigative committee that reported to the MEC, interviewed Dr. Eluhu and Dr. Keyser and
summarized their positions in its report to the MEC. The AHC also reviewed the medical records
of Ms. B and Ms. F. We find no basis upon which a reasonable jury could conclude that Dr. Eluhu
overcame the presumption that CMC met this statutory requirement.
Similarly, as to the MEC’s recommendation that Dr. Eluhu’s privileges be permanently
revoked, Dr. Eluhu has failed to produce evidence to overcome the statutory presumption that CMC
acted with a reasonable belief that its actions would further quality health care. The FHC conducted
a fair hearing over two days and heard from multiple fact and expert witnesses. While objecting to
some of the procedures, discussed more fully below, Dr. Eluhu has failed to present evidence from
which a reasonable jury could conclude that CMC did not act in a reasonable belief that its decision
to permanently revoke Dr. Eluhu’s privileges would further quality health care.
B. Reasonable effort to obtain the facts of the matter.
On October 31, 2003, Dr. Johnson, the chair of the MEC, and Dr. Webber, chair of the
cardiovascular department, considered Dr. Keyser’s complaints, as presented by Dr. Alford, CMC’s
medical director. Dr. Webber reviewed both patients’ medical charts. Conferring together, these
two physicians made the decision to summarily suspend Dr. Eluhu’s ER privileges. Section 10.3A.
of the hospital’s bylaws, cited above, also authorizes any two of a list of hospital officials to
summarily suspend a practitioner’s privileges “whenever failure to take such an action may result
in an imminent danger to the health of any individual.”
Dr. Eluhu argues that Dr. Webber and Dr. Johnson should have at least interviewed Dr.
Keyser and Dr. Eluhu over the telephone before making such a decision. However, as noted above,
42 U.S.C.A. § 11112(c) contemplates the possibility that summary suspension prior to notice and
“other adequate procedures” may be warranted “where the failure to take such action may result in
13
an imminent danger to the health of any individual.” Dr. Eluhu has presented no evidence to rebut
the presumption that CMC’s efforts to obtain the facts prior to summary suspension were
reasonable.6
Dr. Eluhu cites the case of Stratienko v. Chattanooga-Hamilton County Hospital Authority,
a case in which the court found that “[a] reasonable jury could find that Moving Defendants did not
make reasonable efforts to obtain the facts, where they either completely failed to inquire as to the
reason for the altercation, or did so in a manner that failed to uncover relevant facts witnessed by no
less than four individuals.” Stratienko, 2008 WL 4191275, at *4. We find Stratienko to be
distinguishable from the present case. Stratienko concerned an altercation between two doctors that
did not directly involve any patients. Id. at *1. The court specifically found that the “imminent
danger” exception in § 11112(c)(2) did not apply. Id. at *4 n.5. Moreover, there was evidence from
which a reasonable jury could find that the hospital failed to inquire about the reasons for the
altercation or failed to uncover readily available facts. Id. at *4. At the fair hearing in the present
case, Dr. Webber described his reasoning when presented with the request to investigate Dr. Eluhu’s
actions:
Well, I had felt that because [of] the seriousness of the allegations that John Keyser
had raised, and because of the seriousness of the types of problems that had happened
in two critically ill people, I felt that it would be really more than the vice-chair could
sort out by doing the usual peer review directly. To me it looked like in a hurry was
going to be a situation covered in vagary and very complex, and I thought
immediately that an ad hoc committee would be the best way to try to sort it out in
an unbiased way.
....
I thought, again, that the seriousness of the two complications, the allegations that
had been raised, the timing, both of them occurring within 24 hours, both of them
involving emergency room patients, which I thought was a little strange, as well, all
of that to me signaled a red flag and indicated to me that something ought to be
discontinued until we could sort it out further. So I had suggested that we suspend
his privileges for admitting patients through the ER, because that was the avenue
through which these patients came, that was the avenue through which these patients
had surfaced.
Thus, Dr. Webber and Dr. Johnson decided that the situation implicated patient safety and that, due
to the complexity of the issues, a sufficient investigation would require an ad hoc committee. The
preponderance of the evidence does not contradict the presumption that Drs. Webber and Johnson
performed an adequate preliminary investigation in light of the presence of a reasonable basis for
fear of imminent danger to patients.
6
As head of the MEC, Dr. Webber also appointed the AHC to further look into the allegations concerning Dr.
Eluhu’s actions in the two cases at issue.
14
As to the MEC’s decision to summarily suspend all of Dr. Eluhu’s hospital privileges, Dr.
Eluhu asserts that “the undisputed evidence is that the MEC did nothing to obtain the facts of the
matter except for review and discuss the AHC report for a mere twenty minutes.” The AHC was a
committee of the MEC and acted as an investigatory body. Based upon the report of the AHC, the
MEC decided to summarily suspend all of Dr. Eluhu’s hospital privileges and to recommend to the
board of trustees that his privileges be permanently revoked. The MEC specifically cited “imminent
danger to the health of such patients at Centennial” in its notice to Dr. Eluhu. Pursuant to the
hospital’s bylaws and consistent with the HCQIA, summary or immediate suspension may be
warranted in cases where there is a reasonable concern regarding patient safety. See 42 U.S.C. §
11112(c)(2). Moreover, other courts have stated that, “[w]hen the issue subject to peer review only
concerns a single incident, summary suspension will inherently require less intensive fact finding
and data compilation than would be the case with a review of a physician’s care over several years.”
Johnson v. Christus Spohn, No. C-06-138, 2008 WL 375417, at *8 (S.D. Tex. Feb. 8, 2008).
With respect to whether there were reasonable efforts to obtain the facts of the matter
regarding the decision to permanently revoke Dr. Eluhu’s privileges, Dr. Eluhu argues that it was
inappropriate for the MEC to recommend permanent revocation based on the AHC report “without
interviewing all sides.” As stated above, the MEC relied in part on the fact finding conducted by the
AHC. Moreover, the MEC’s recommendation did not become a final decision until it was approved
by the board of trustees. We must consider the totality of the process leading to the professional
review action, not just a single step in the process. See Curtsinger, 2007 WL 1241294, at *9;
Poliner v. Texas Health Sys., 537 F.3d 368, 380 (5th Cir. 2008). Dr. Eluhu requested and received
a fair hearing on his case, as well as review by the ARC and approval by the board of trustees. We
find nothing in Dr. Eluhu’s arguments to overcome the presumption that CMC undertook reasonable
efforts to obtain the facts.
C. Adequate notice and hearing procedures or such other procedures as are fair.
With respect to summary suspensions, 42 U.S.C. § 11112(c)(2) allows “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.” Dr. Eluhu argues that “a jury could conclude that
Centennial failed to provide adequate notice and hearing procedures with regard to the summary
suspension [of ER privileges]” and that “a jury could reasonably conclude that Dr. Eluhu was not
an imminent danger to anyone.” As this case comes to us on summary judgment and with a
presumption in favor of immunity, the question we must decide is whether, looking at the facts in
the light most favorable to Dr. Eluhu, the evidence preponderates against the presumption that the
hospital meets the requirements for immunity. The issue of whether the hospital qualifies for
immunity is a question of law and may be decided by the court once the relevant facts are developed.
Bryan, 33 F.3d at 1332.
Dr. Eluhu argues that “the actions of Drs. Johnson, Webber and Alford demonstrate rather
conclusively that they did not hold [the opinion that Dr. Eluhu posed an imminent danger]” at the
time when the summary suspension of ER privileges was imposed. The state of mind of the doctors
15
is not relevant. The reasonableness required under the HCQIA is evaluated under an objective
standard. Curtsinger, 2007 WL 1241294, at *6; Singh, 308 F.3d at 32; Brown v. Presbyterian
Healthcare Servs., 101 F.3d 1324, 1333 (10th Cir. 1996).
Dr. Eluhu points to the time lag of four to five days between the initial incidents (on October
25 and 26) and the decision (on October 31); the limitation of the initial suspension to ER privileges;
and the absence of grossly incompetent or abusive behavior by Dr. Eluhu as indications of the
absence of imminent danger. We disagree. The incidents in question occurred over the weekend,
and it took a few days for the peer review participants to receive and preliminarily evaluate Dr.
Keyser’s complaints. Dr. Webber’s testimony indicates that the decision to impose a summary
suspension limited to ER privileges was an attempt to address serious safety concerns while trying
to be fair to Dr. Eluhu and confine the suspension to the specific area in which problems had been
identified.7 Dr. Eluhu cites Dr. Alford’s testimony to support his assertion that “summary
suspensions are normally reserved for situations in which there is very inappropriate behavior,
abusive behavior, . . . apparent negligence or serious harm to the patient, ‘psychiatric behavior,’
alcohol and ‘that type of thing.’” Even assuming that this assertion is factually accurate, the language
of the summary suspension provisions of the hospital’s bylaws and the HCQIA are broad enough to
include any action that “may result in an imminent danger to the health of any individual.” 42
U.S.C. § 11112(c)(2); see Poliner, 537 F.3d at 382.
We turn now to Dr. Eluhu’s objections to the notice with respect to the permanent revocation
of his hospital privileges. Dr. Eluhu argues that, after the AHC submitted its report to the MEC, he
was not informed that the AHC had identified additional quality of care concerns that were being
evaluated by the MEC. Even if Dr. Eluhu was not aware of the additional quality of care concerns
until the MEC issued its report, however, this fact would not negate HCQIA immunity. Dr. Eluhu
was informed of the quality of care issues prior to the hearing concerning the permanent revocation
of privileges. We look at the totality of the process leading up to a professional review action, not
to each professional review activity along the way. See Curtsinger, 2007 WL 1241294, at *6; Bryan,
33 F.3d at 1334; Fobbs v. Holy Cross Health Sys. Corp., 789 F. Supp. 1054, 1065 (E.D. Cal.1992).
Moreover, the legislative history of the HCQIA includes statements contemplating the uncovering
of new problems during the investigation leading up to a professional review action:
The Committee is aware that between the time the initial notice is given of a
proposed professional review action and the time of the hearing on that action, the
investigation may have uncovered reasons for such an action other than or in addition
to the reasons specified in the initial notice. Provided that notice is given in a way
that protects the interests of the physicians against whom the action is proposed, a
supplemental notice of such additional reasons might well satisfy the requirements
of due process.
7
At the hearing, Dr. W ebber testified: “[A]s a cardiologist, who has had complications like the rest of us, my
concern was, you know, is this just coincidental and bad luck on Dr. Eluhu’s part or is there some sort of pattern that we
need to look at more explicitly.”
16
H.R. REP. NO . 99-903, at 11, reprinted in 1986 U.S.C.C.A.N. 6384, 6394; see also Fobbs, 789 F.
Supp. at 1068.
The HCQIA contains a “safe harbor” provision under which “[a] health care entity is deemed
to have met the adequate notice and hearing requirement of subsection (a)(3)” if certain conditions
are met. 42 U.S.C. § 11112(b). Those conditions are described in detail at 42 U.S.C. § 11112(b).
While acknowledging that CMC adhered to many of the requisite conditions, Dr. Eluhu asserts that
the hospital failed to “meaningfully comply” with § 11112(b)(1)(A)(ii), which requires that the
physician receive notice stating “reasons for the proposed action.” We cannot agree. In addition to
the MEC report, Dr. Eluhu received detailed letters from CMC’s attorneys advising him of the issues
to be addressed at the hearing, including quality of care issues, his history at CMC, and the
complication rate data. Dr. Eluhu argues that it was fundamentally unfair for the fair hearing panel
to make a decision based upon issues not considered by the MEC. Dr. Eluhu focuses his inquiry at
the MEC level instead of looking at the totality of the process. As stated above, the investigatory
process may uncover additional problems. As long as the physician has a chance to prepare for those
issues and present his position at the fair hearing, the process comports with § 11112(b)(1)(A)(ii).
It is worth noting that Dr. Eluhu did not request a continuance of the hearing to allow him to address
any new issues.
Dr. Eluhu has failed to overcome the presumption that the hospital complied with the safe
harbor notice and procedure requirements.
D. Reasonable belief that action warranted by facts known after reasonable effort to obtain
the facts and after meeting the requirements of paragraph (3).
The analysis regarding this fourth requirement “closely tracks our analysis under §
11112(a)(1).” Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461, 471 (6th Cir. 2003)
(quoting Gabaldoni v. Washington County Hosp. Ass’n, 250 F.3d 255, 263 n.7 (4th Cir. 2001)). And
Dr. Eluhu has not presented any additional arguments with respect to this criterion.
We conclude that Dr. Eluhu has failed to overcome the presumption of immunity in this case.
The alleged factual disputes on which he relies go to the medical judgments reached by CMC in the
peer review process, not to the adequacy of the process itself. We therefore further conclude that the
trial court properly granted summary judgment on all claims for monetary damages based upon the
hospital’s peer review activities.
DECLARATORY AND INJUNCTIVE RELIEF
After the trial court granted CMC’s motion for summary judgment regarding damage claims
for actions taken as part of the peer review process, the court granted the hospital’s motion for
17
summary judgment on the remaining claims for injunctive or declaratory relief.8 In contrast to the
presumption applicable with respect to HCQIA immunity, these claims for equitable relief are
subject to the normal summary judgment standard: the moving party bears the burden of
demonstrating that no genuine disputes of material fact exist and that the party is entitled to
judgment as a matter of law. Godfrey, 90 S.W.3d at 695. In making this determination, we take the
strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable
inferences in favor of that party, and discard all countervailing evidence. Id.
A. Breach of contract.
Dr. Eluhu’s main claim is that CMC breached its contract with Dr. Eluhu by violating its
bylaws. Our Supreme Court has recognized that a hospital’s bylaws constitute “an integral part of
its contractual relationship with the members of its medical staff.” Lewisburg Cmty. Hosp., Inc. v.
Alfredson, 805 S.W.2d 756, 759 (Tenn. 1991); see also Gekas v. Seton Corp., No. M2006-00454-
COA-R3-CV, 2008 WL 836399, at *6 (Tenn. Ct. App. Mar. 28, 2008). The hospital has a
contractual obligation to follow its bylaws. Lewisburg, 805 S.W.2d at 759. In such cases, this court
has adopted a standard of substantial compliance: “if the hospital has substantially complied with
the requirements of its bylaws, then it has met its contractual obligation.” Gekas, 2008 WL 836399,
at *7.
The substantial compliance standard provides for limited judicial review. Id. We have
described the courts’ role as follows:
[T]heir role is not to reweigh the evidence and substitute their own judgment for that
of the hospital, but only to determine if the hospital has substantially complied with
its bylaws and given the affected party adequate notice and the opportunity for a fair
hearing before an impartial tribunal.
Id. Such deference reflects “the general unwillingness of courts to substitute their judgment on the
merits for the professional judgment of medical and hospital officials with superior qualifications
to make such decisions.” Mahmoodian v. United Hosp. Ctr., Inc., 404 S.E.2d 750, 756 (W. Va.
1991). Even if the hospital has substantially complied with the bylaws procedures, a court may
examine the evidence “to the degree necessary to determine whether the hospital’s decision was
arbitrary, capricious or unreasonable.” Gekas, 2008 WL 836399, at *11.
Dr. Eluhu asserts nine bases to support his argument that CMC failed to substantially comply
with the bylaws:
1. Section 10.2 of the bylaws: requests for corrective action in writing.
8
The immunity provided under the HCQIA does not cover injunctive or declaratory relief. 42 U.S.C. §
11111(a)(1); Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 605 (4 th Cir. 2009). The same is true of the
Tennessee Peer Review Law. Eyring v. Fort Sanders Parkwest Med. Ctr., Inc., 991 S.W .2d 230, 236 (Tenn. 1999).
18
Section 10.2 of CMC’s bylaws, part of Article I on corrective action, sets forth the procedure
for initiating a corrective action and provides, in pertinent part:
All requests for corrective action shall be in writing and shall be made to the MEC.
Such requests for corrective action shall be supported by reference to the specific
activities or conduct, which constitute the grounds for the requested corrective action.
The evidence does not show that this procedure was followed in this case.9 Rather, the first written
statement concerning the case appears in a letter written by Dr. Johnson, MEC chair, to Dr. Webber,
chair of the cardiovascular medicine department. In that letter, dated October 30, 2003, Dr. Johnson
stated that Dr. Keyser raised concerns “including but not limited to” the following:
• Lack of Dr. Eluhu’s availability and direction for staff caring for patients
having complications of procedures performed by Dr. Eluhu
• Failure of Dr. Eluhu to provide appropriate physician-to-physician
communication in requesting consultation to assist in managing major
complications
Dr. Johnson directed Dr. Webber to form an ad hoc committee to investigate.
CMC argues that this procedure was not applicable because the inquiry began as a summary
suspension. Section 10.1 of the bylaws is titled “Criteria for Initiating an Investigation for Possible
Corrective Action Other than Summary or Automatic Suspension.” Section 10.2 is titled
“Procedure,” and Section 10.3 is titled “Summary Suspension.” All of these sections are part of
Article X: Corrective Action. According to CMC’s interpretation, Sections 10.1 and 10.2 both apply
only to corrective action other than summary or automatic suspension. While the interpretation
urged by CMC does not necessarily follow from the organization of Article X or the language of
Section 10.2, we find that this construction is the most logical interpretation in light of the provisions
of Section 10.3 on summary suspension.
Section 10.3 of CMC’s bylaws authorizes any two of “the Chair of the MEC (Medical Staff
President), Department Chief, the Medical Center President, the MEC or the Trustees” to summarily
suspend any of a practitioner’s clinical privileges under certain circumstances, and the summary
suspension “shall become effective immediately.” The practitioner is then entitled to request a
hearing on the summary suspension. Thus, a summary suspension does not necessarily involve the
MEC. A department chief and the MEC chair may, as in the present case, make a joint decision that
summary suspension is warranted. Under those circumstances, requiring initiation of the process
9
Dr. Alford testified that he thought he had written a letter to Dr. Johnson or Dr. W ebber concerning Dr.
Keyser’s concerns, but no such letter was ever produced.
19
through a written report to the MEC would be superfluous.10 Summary suspension is designed to
be an immediate action subject to later presentation to and consideration by the MEC.
In his reply brief, Dr. Eluhu states that he “does not argue that Sections 10.1 and 10.2
governed the summary suspension, but he does contend that those sections governed the process,
initiated by Dr. Johnson’s October 30 letter specifically invoking Section 10.2, that led to his ouster
from the hospital.” Given this concession that §§ 10.1 and 10.2 do not govern summary suspension,
we find no real issue here. As will be further explained below in our discussion of particular
arguments made by Dr. Eluhu, we find nothing to indicate that the hospital failed to substantially
comply with these sections in permanently revoking his staff membership.
2. Section 10.3(A) of the bylaws: imminent danger.
Section 10.3(A) authorizes certain hospital officials to summarily suspend a practitioner
“whenever failure to take such an action may result in an imminent danger to the health of any
individual.”11 Dr. Eluhu argues that summary judgment was improper because there is an issue of
material fact “as to whether Centennial’s agents actually and in good faith believed that Dr. Eluhu
posed an imminent danger to anyone.” In support of this argument, Dr. Eluhu cites the same three
factors addressed above–the time lag of four to five days between the initial incidents and the initial
summary suspension; the limitation of the initial suspension to ER privileges; and the absence of
grossly incompetent or abusive behavior by Dr. Eluhu.
Dr. Eluhu essentially challenges the hospital’s implicit determination that failure to impose
a summary suspension might result in “imminent danger to the health of any individual.” This is the
type of medical judgment for which we are loathe to substitute our judgment for that of the hospital.
For the reasons discussed above, we do not find the three factors cited by Dr. Eluhu to be persuasive.
Moreover, Dr. Eluhu has not cited, and we do not find, any evidence that the hospital’s decision to
proceed under the summary suspension provisions was arbitrary, capricious, or unreasonable.
3. Section 12.6 of the bylaws: scope of ad hoc committee’s work.
Section 12.6 of the bylaws authorizes the appointment of ad hoc committees and provides
that such committees “shall confine their work to the purposes for which they were appointed and
shall report back to the MEC.” Dr. Eluhu argues that the AHC violated section 12.6 by going
beyond the specific concerns described in Dr. Johnson’s letter and identifying additional quality of
10
Dr. Eluhu argues that “Section 10.2's requirement that a request for corrective action specifically identify the
activity or conduct at issue is clearly intended to define the scope of the inquiry and allow all participants to know what
is at issue so that they may act accordingly.” Although we have concluded that Section 10.2 does not directly apply here,
we note that this argument will be addressed below.
11
The summary suspension language of 42 U.S.C. § 11112(c), which contemplates summary suspension “where
the failure to take such an action may result in an imminent danger to the health of any individual,” mirrors the language
used by CMC in its bylaws.
20
care concerns. We disagree with this analysis. The AHC was tasked to investigate and evaluate
potential problems regarding Dr. Eluhu’s treatment of two patients. Dr. Johnson’s letter expressly
did not limit the AHC’s work to the two specific issues he described. Moreover, we see nothing in
the bylaws that would preclude the AHC from uncovering related problems in the course of its
investigation. See Gekas, 2008 WL 836399, at *10.
Dr. Eluhu asserts that allowing the consideration of these “new” issues (instead of referring
them to the cardiovascular department for separate peer review) is a denial of due process because
“the Fair Hearing procedure is the last resort for a physician and clearly presents an uphill battle.”
We conclude, however, that as long as Dr. Eluhu had adequate notice and opportunity to address the
issues at the hearing, there is no violation of due process. See id.; see also Johnson v. Spohn, No.
08-40262, 2009 WL 1766557, at *8-9 (5th Cir. June 23, 2009); Fobbs, 789 F. Supp. at 1068.
4. Section 10.2(C) of the bylaws: notice and opportunity to respond to AHC.
Section 10.2(C) provides, in pertinent part, as follows:
As soon as possible after receipt of the request for corrective action, the department
shall make a report of its investigation to the MEC. Prior to making such a report,
the practitioner against whom corrective action has been requested shall have an
opportunity for an interview with the Ad Hoc Investigating Committee. At this
interview the practitioner shall be informed of the general nature of the charges
against him/her and shall be invited to discuss, explain or otherwise refute such
charges. The interview shall not constitute a hearing, but shall be preliminary in
nature and none of the procedural rules provided by these Bylaws with respect to
hearings and protocol shall apply.
Dr. Eluhu avers that he was not properly informed of the issues to be addressed when he met with
the AHC. According to Dr. Eluhu, he was told only that he would be “asked about his interactions
with Dr. Keyser, and possibly the nurses” and therefore “was not prepared to talk in detail about his
care of Ms. B and Ms. F, having recently returned from his father’s funeral in Africa.” Dr. Eluhu
further asserts that the AHC did not question him about all of the concerns included in the report by
Dr. Seitz, the AHC chair.
We find no merit to this argument. The letter sent to Dr. Eluhu on October 31, 2003,
informed him that his ER call had been summarily suspended “[b]ecause of concerns regarding
complications arising in two of your patients who underwent emergency catheterizations on October
25/26, 2003.” Dr. Eluhu admits that the AHC asked him to give a narrative of his treatment of these
two patients and questioned him about Ms. F’s bradycardic episode. Section 10.2(C) specifically
states that the physician under review must be informed at the AHC interview of the “general nature
of the charges” and that the ad hoc proceedings “shall not constitute a hearing, but shall be
preliminary in nature and none of the procedural rules provided by these Bylaws with respect to
21
hearings and protocol shall apply.” Moreover, prior to the hearing, Dr. Eluhu was informed in detail
of the hospital’s position and the issues to be addressed.
5. Section 10.2(C) of the bylaws: record of interview.
Section 10.2(C) further provides that a record of the AHC interview “shall be made by the
department and included in the above-mentioned report presented to the MEC.” Dr. Eluhu takes the
position that this section was violated because the AHC’s report does not reference any discussion
with Dr. Eluhu regarding the “new” quality of care issues, a discussion he claims never occurred.
Section 10.2(C) requires a record of the AHC interview; it does not contain any requirements with
regard to the interview or the nature of the report. According to Dr. Eluhu, it was essential for the
AHC to discuss these “new” issues with him and to document that discussion so that the MEC would
know his responses. Based upon the language of Section 10.2(C) and the investigatory nature of the
AHC interview, we find no merit to this position. Dr. Eluhu was fully informed of these concerns
prior to his fair hearing and had a chance to address them.
6. Section 12.1(C)(8) of the bylaws: MEC’s duty to review all available information.
Section 12.1(C)(8) appears in a list of MEC duties and requires the MEC to “review, as may
be indicated, all information available regarding the performance and clinical competence of Staff
members and as a result of such reviews, to make recommendations for reappointments and renewals
and changes in clinical privileges.” Dr. Eluhu emphasizes the AHC report’s statement that “further
evaluation of the serious quality of care issues raised by Dr. Eluhu’s management of these patients
is warranted.” In his view, this recommendation should have prompted the MEC to conduct further
investigation. Instead, based upon the MEC report and its own discussion of the issues presented,
the MEC voted to summarily suspend all of Dr. Eluhu’s privileges and to recommend to the board
of trustees revocation of his medical staff membership. While it certainly would have been within
the MEC’s discretion to conduct further investigation, we see nothing in the bylaws requiring it to
do so.
7. Section 1.3 of the fair hearing plan.
Section 1.3 of CMC’s fair hearing plan provides as follows:
A practitioner against whom an adverse recommendation or action has been taken
pursuant to Section 1.2 of this Plan shall promptly be given special notice of such
action and the grounds upon which the adverse action is based. Such notice shall:
(a) Advise the practitioner of his right to a hearing pursuant to the provisions of the
Medical Staff Bylaws and of this Fair Hearing Plan.
(b) Receipt of notice within which a request for hearing must be submitted.
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(c) State that failure to request a hearing within a specified time period shall
constitute a waiver of rights to a hearing and to an appellate review on the matter.
Dr. Eluhu’s argument is that he “had no idea why the MEC had taken such drastic action, and Dr.
Johnson’s letter [of December 10, 2003] did not inform him as required by Section 1.3.” We
disagree. In the December 10, 2003 letter, Dr. Johnson cited “inadequate performance and judgment
resulting in patient harm in the two cases at issue” as well as “earlier instances of questionable
patient care.” In their letter of October 31, 2003, Drs. Johnson and Webber referenced
“complications arising in two of your patients who underwent emergency cardiac catheterizations
on October 25/26, 2003.” Based upon these two letters, Dr. Eluhu knew the two cases in question.
As to the other patient care issues identified by the AHC, it appears that Dr. Eluhu did not
receive a copy of the AHC report until a few weeks after the December 10, 2003 letter. It is
undisputed, however, that Dr. Eluhu did receive a copy of that report before December 31, 2003.
Furthermore, he and his attorneys thereafter received more information about the issues to be
addressed at the fair hearing, most notably a letter dated February 12, 2004, that included a detailed
outline. The hearing began on February 24, 2004, and Dr. Eluhu did not request a continuance to
prepare his response to any “new” information.
Dr. Eluhu argues that it was improper for the hospital to rely on information that did not form
part of the basis for the MEC’s decision, such as the complication data, in making its case at the fair
hearing. He cites no authority to support this argument, and we have rejected the same proposition
in our discussion above. We believe Dr. Eluhu received prompt notice of the general grounds upon
which the adverse action was based and adequate notice of issues to be addressed at the fair hearing.
8. Section I(10) of the medical staff rules and regulations.
Under Section I(10) of the hospital’s medical staff rules and regulations, a section outlining
the guidelines for peer review of quality of care, “[p]rior to any action or severity assignment, the
individual being evaluated shall be given the opportunity to present his/her position in person to the
departmental chairman and/or ad hoc departmental quality review committee.” The hospital does
not dispute the fact that Dr. Eluhu was not given the opportunity to talk to the department chair or
quality review committee prior to the assignment of severity ratings. CMC’s quality management
department referred the cases to Dr. Sikes, a cardiologist, on December 17, 2003, and he made the
assignment of severity ratings. (Dr. Sikes was also a member of the AHC.) Dr. Eluhu was not given
the opportunity to meet with Dr. Sikes before the severity rating assignments. The hospital
emphasizes that Dr. Eluhu presented his position to the AHC, which last met on December 4, 2007.
While we do not consider Dr. Eluhu’s appearance before the AHC to satisfy the requirements of
Section I(10), we do not view this violation of the rules as amounting to a failure to substantially
comply with the bylaws. Dr. Eluhu has not identified any way in which this deviation from the rules
prejudiced him.
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9. Section 3.7 of the fair hearing plan.
Section 3.7 of the hospital’s fair hearing plan addresses the burden of proof and provides, in
pertinent part, that the MEC “shall have the initial obligation to present evidence” in support of its
adverse action. Dr. Eluhu cites statements in the FHC’s report that “the evidence presented to the
Hearing Panel was much more extensive than that presented to the MEC when it made its
recommendation” and that “the investigation into the facts performed by the attorneys for the parties
was more extensive than the investigation performed by the Ad Hoc Committee which reported to
the MEC.” According to Dr. Eluhu’s argument, Section 3.7 should be interpreted to require that the
MEC must “present evidence of the actual reasons they took the action, not evidence gathered after
the fact by its lawyers to support the position.”
For the same reasons discussed above, we reject this reasoning. We agree with the trial
court’s conclusion that “Dr. Eluhu’s desire to limit the proof and the investigation has no basis in
the Bylaws, so long as Dr. Eluhu was advised of the grounds upon which his privileges were
suspended and then terminated.”
The trial court did not err in granting summary judgment on Dr. Eluhu’s claims for breach
of contract.
B. Other causes of action.
In addition to his cause of action for breach of contract, Dr. Eluhu asserted causes of action
for breach of the implied duty of good faith and fair dealing, defamation, common law
disparagement, statutory disparagement, and intentional interference with existing and prospective
business relationships. He argues on appeal that the trial court erred in dismissing his claims for
equitable relief under these causes of action. CMC counters that the remaining causes of action
“were contingent upon Dr. Eluhu establishing a breach of contract or establishing that Centennial
acted in bad faith and malice during the peer review proceedings” and that there are no genuine
issues of material fact as to these remaining causes of action set forth in the complaint.12
Dr. Eluhu acknowledges that the trial court summarily dismissed these additional causes of
action in its order and memorandum but assigns error to the trial court’s failure to identify any
reasons for this disposition. We are inclined to agree with Dr. Eluhu. While the trial court carefully
addressed all of Dr. Eluhu’s arguments regarding his breach of contract claims, the court’s
memorandum and order does not discuss or even mention the other causes of action. Effective July
1, 2007, Tenn. R. Civ. P. 56.04 provides: “The trial court shall state the legal grounds upon which
the court denies or grants the motion [for summary judgment], which shall be included in the order
reflecting the court’s ruling.” Without such a statement, as in the present case, a reviewing court is
12
This court notes that some of the factual allegations underlying Dr. Eluhu’s remaining causes of action–for
example, his claims based upon statements allegedly made by Dr. Alford to another hospital–reference actions taken
outside of the peer review process.
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left to wonder on what grounds the trial court granted the motion for summary judgment. We
therefore vacate and remand the trial court’s decision to grant summary judgment with respect to Dr.
Eluhu’s additional claims for equitable relief (meaning those claims not based upon breach of
contract).
TEMPORARY INJUNCTION
Dr. Eluhu also assigns error to the trial court’s decision, in March 2007, to deny his
application for a temporary injunction to compel CMC to reinstate his privileges and to revise or
retract its report to the national data bank. We review a trial court’s decision to issue or not to issue
injunctive relief under an abuse of discretion standard. See Medtronic, Inc. v. NuVasive, Inc., No.
W2002-01642-COA-R3-CV, 2003 WL 21998480, at *10 (Tenn. Ct. App. Aug. 20, 2003); Bd. of
Comm’rs, 88 S.W.3d at 919.
Tenn. R. Civ. P. 65.04(2) provides for the issuance of a temporary injunction when “the
movant’s rights are being or will be violated by an adverse party and the movant will suffer
immediate and irreparable injury, loss or damage pending a final judgment in the action.” Courts
consider four factors when deciding whether to grant a preliminary injunction: “(1) the threat of
irreparable harm to the plaintiff if the injunction is not granted; (2) the balance between this harm
and the injury that granting the injunction would inflict on defendant; (3) the probability that plaintiff
will succeed on the merits; and (4) the public interest.” Moody v. Hutchison, 247 S.W.3d 187, 199-
200 (Tenn. Ct. App. 2007). The trial court considered each of these factors in its order denying Dr.
Eluhu’s application for injunctive relief:
This Court finds, based on all the materials reviewed as well as review of the relevant
case law, that it is unlikely that Dr. Eluhu will be successful on the merits of this
case. . . . Although the Court finds that there is irreparable harm to Dr. Eluhu’s
reputation and his ability to earn money given his speciality of cardiology which must
rely on referrals, when this harm is balanced against the harm to the hospital and the
public interest in having a physician practicing on its staff that the hospital has
concluded does not have the skills that are needed to practice there and that patients
may be harmed, the Courts finds that the public interest will not be served by the
issuance of an injunction.
We conclude that the trial court properly exercised its discretion in denying Dr. Eluhu’s request for
a temporary injunction.13
13
Relying on Early v. Bristol M emorial Hospital, Inc., CMC argues that temporary injunctive relief is not
available as a remedy under Tennessee law for physicians seeking reinstatement of revoked hospital privileges. Early,
508 F. Supp. 35 (E.D. Tenn. 1980). Given our determination that the trial court did not err in denying a temporary
injunction to Dr. Eluhu in this case, we decline to consider this issue.
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CONCLUSION
We reverse and remand the trial court’s decision to grant summary judgment with respect to
Dr. Eluhu’s claims for injunctive relief not based upon breach of contract. With respect to all other
claims, including monetary damages and injunctive relief for breach of contract, we affirm the trial
court’s decision. Costs of appeal are assessed against the appellant, Dr. Eluhu, for which execution
may issue if necessary.
___________________________________
ANDY D. BENNETT, JUDGE
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