Joseph C. Curtsinger, Jr. M.D. v. HCA, Inc.

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

March 8, 2007 Session

JOSEPH C. CURTSINGER, JR., M.D. v. HCA, INC., ET AL.

Appeal from the Chancery Court for Davidson County

No. 04-3026-III Ellen Hobbs Lyle, Chancellor

No. M2006-00590-COA-R3-CV - Filed on April 27, 2007

Surgeon filed action against hospital and other related persons and entities seeking injunctive relief

and monetary damages for the allegedly improper revocation of his hospital privileges and the false

reporting of such to the State Medical Board and the National Practitioner Data Bank. The trial court

granted Defendants partial summary judgment on all monetary claims asserted by surgeon pursuant

to the Health Care Quality Improvement Act (HCQIA) and the Tennessee Peer Review Law. Having

found that surgeon failed to show by a preponderance of the evidence that Defendants did not satisfy

the four prong test for immunity provided under HCQIA, we affirm the decision of the trial court in

all respects.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL and FRANK

G. CLEMENT , JR., JJ., joined.

Matthew B. Zenner, Nashville, Tennessee, for the appellant, Joseph C. Curtsinger, Jr., M.D.

C.J. Gideon, Timothy McIntire, Nashville, Tennessee, for the appellees, HCA Health Services of

Tennessee, Inc. d/b/a Southern Hills Medical Center, Victor E. Giovanetti, Joseph A. Wieck, M.D.,

and Malcolm E. Baxter, M.D.

OPINION

Appellant, Dr. Joseph Curtsinger, is a surgeon and former member of the Southern Hills

Medical Center (SHMC) staff. On July 2, 2003, Dr. Curtsinger received a notice of suspension from

SHMC for allegedly refusing to respond to three emergency room calls on June 30, 2003, and for

allegedly engaging in a pattern of unprofessional and disruptive behavior towards patients and other

SHMC employees. An investigation was conducted as a result of the suspension and the Medical

Executive Committee (MEC) determined on July 10, 2003, that Dr. Curtsinger would remain

suspended until various conditions were satisfied. In a letter dated July 22, 2003, Dr. Curtsinger

agreed to the conditions, requested termination of his suspension and asked that he be placed on

voluntary leave of absence pending the satisfaction of the conditions. On July 24, 2003, the MEC

terminated Dr. Curtsinger’s suspension and granted his request for leave of absence.

Believing that he had satisfied the conditions for reinstatement, Dr. Curtsinger requested on

August 22, 2003, that his leave of absence be terminated and that he be reinstated to the SHMC

medical staff. Upon consideration of the recommendations of the MEC, the SHMC Board of

Trustees conditionally approved Dr. Curtsinger’s request for reinstatement so long as he executed

an agreement with SHMC. However Dr. Curtsinger refused to execute the agreement, claiming that

it divested him of rights guaranteed to him under SHMC Bylaws. As a result of Dr. Curtsinger’s

refusal to sign the agreement, the MEC recommended that the Board of Trustees deny Dr.

Curtsinger’s request for reinstatement.

On January 26, 2004, Dr. Curtsinger was afforded a fair hearing appeal to present evidence

in favor of his reinstatement and to refute the allegations of the MEC. On February 12, 2004, the

MEC recommended denial of Dr. Curtsinger’s reinstatement, which became final since Dr.

Curtsinger did not request appellate review. Because the professional review action adversely

affected Dr. Curtsinger’s clinical privileges for a period longer than thirty (30) days, SHMC reported

the adverse professional peer review action to the State Medical Board and the National Practitioner

Data Bank on April 13, 2004.

On October 22, 2004, Dr. Curtsinger filed an action against Defendants alleging various

claims arising from his permanent suspension including (1) breach of contract; (2) interference with

his prospective economic advantages; (3) interference with his right to practice his profession and

civil conspiracy; (4) violations of the Sherman Anti-Trust Act and conspiracy to restrain trade; (5)

wrongly and inaccurately reporting his adverse peer review action to the National Practitioner Data

Bank; and (6) bad faith and libel. On January 7, 2005, Defendants filed a motion for partial

summary judgment alleging that they were immune from any monetary damages asserted by Dr.

Curtsinger pursuant to the Health Care Quality Improvement Act (HCQIA) and the Tennessee Peer

Review Law.

Dr. Curtsinger sought additional time for discovery in order to gain more information prior

to responding to Defendants’ motion for partial summary judgment. On March 16, 2005, the trial

court denied Dr. Curtsinger’s discovery request, on the grounds that the requested information was

privileged and barred from discovery under the Tennessee Peer Review Law and the Tennessee

Supreme Court’s decision in Eyring v. Fort Sanders Parkwest Med. Ctr., Inc., 991 S.W.2d 230

(Tenn.1999). The court entered a briefing schedule allowing Dr. Curtsinger until April 8, 2005, to

respond to Defendants’ motion, and Defendants until April 15, 2005, to reply. On April 15, 2005,

Defendants sought leave of court to file under seal the additional affidavits of Drs. Wieck and

Giovanetti, which the court granted on April 28, 2005.

On June 8, 2005, the trial court granted Defendants’ motion for partial summary judgment,

finding that Defendants were immune from monetary damages for the peer review action taken

against Dr. Curtsinger pursuant to HCQIA and the Tennessee Peer Review Law. On February 21,

-2-

2006, the court entered an agreed order voluntarily dismissing all of Dr. Curtsinger’s remaining

claims without prejudice. Dr. Curtsinger appeals arguing that the trial court erred in (1) denying him

the opportunity to engage in discovery prior to responding to Defendants’ motion for partial

summary judgment; (2) allowing Defendants to submit additional affidavits in support of their

motion; (3) granting Defendants partial summary judgment pursuant to HCQIA and the Tennessee

Peer Review Law; and (4) finding that the information supplied by Defendants to the National

Practitioner Data Bank was sufficiently accurate and not made in bad faith or with malice.

I. DISCOVERY

As an initial matter, Dr. Curtsinger argues that the trial court erred in denying him the

opportunity to engage in discovery prior to responding to Defendants’ motion for partial summary

judgment. However pursuant to the Tennessee Peer Review Law, a plaintiff in a professional peer

review court action does not have an unfettered right to discovery as it relates to the deliberative

process in a professional peer review investigation. Tennessee Code Annotated section 63-6-219(e)

provides that:

(e) All information, interviews, incident or other reports, statements, memoranda or

other data furnished to any committee as defined in this section, and any findings,

conclusions or recommendations resulting from the proceedings of such committee

are declared to be privileged. All such information, in any form whatsoever, so

furnished to, or generated by, a medical peer review committee, shall be privileged.

The records and proceedings of any such committees are confidential and shall be

used by such committee, and the members thereof only in the exercise of the proper

functions of the committee, and shall not be public records nor be available for court

subpoena or for discovery proceedings. One (1) proper function of such committees

shall include advocacy for physicians before other medical peer review committees,

peer review organizations, health care entities, private and governmental insurance

carriers, national or local accreditation bodies, and the state board of medical

examiners of this or any other state. The disclosure of confidential, privileged peer

review committee information to such entities during advocacy, or as a report to the

board of medical examiners under § 63-6-214(d), or to the affected physician under

review, does not constitute either a waiver of confidentiality or privilege. Nothing

contained in this subsection (e) applies to records made in the regular course of

business by a hospital or other provider of health care and information, documents

or records otherwise available from original sources are not to be construed as

immune from discovery or use in any civil proceedings merely because they were

presented during proceedings of such committee.

In Eyring, 991 S.W.2d at 239, the Tennessee Supreme Court addressed the application of

Tennessee Code Annotated section 63-6-219(e) in a discovery proceeding. Said the Court:

-3-

This statute creates a broad privilege from disclosure for “[a]ll information,

interviews, incident or other reports, statements, memoranda or other data ... and any

findings conclusions or recommendations resulting from the [committees']

proceedings.” Id. In our view, this broad language encompasses any and all matters

related to the peer review process itself. We reject Eyring's contention that the statute

grants an implicit right to any information “furnished to or resulting from the

proceedings” of the peer review committees.

It appears, however, that the broad language extending the privilege from

discovery must be reconciled with the statutory requirement that the plaintiff bear the

burden of producing evidence of malice and bad faith. We therefore agree with the

trial court's ruling allowing Eyring to conduct discovery for the limited purpose of

investigating the committee members' good faith, malice, and reasonable knowledge

or belief, but prohibiting any inquiry into the peer review process itself. Cf.

Alexander v. Memphis Individual Prac. Ass'n, 870 S.W.2d 278 (Tenn.1993).

Accordingly, we conclude that the trial court was correct and that the broad language

of the statute encompasses any and all matters related to the peer review process.

Eyring, 991 S.W.2d at 239.

We therefore must determine whether Dr. Curtsinger’s discovery request was limited to

investigating the MEC’s good faith, malice, and reasonable knowledge or belief or whether the

request delved into the peer review process itself. The discovery which Dr. Curtsinger sought to

obtain specifically included:

1. What factor the defendants advance that would lead a reasonable person to the

conclusion that a patient incident of an undefined nature that preceded Dr.

Curtsinger’s reappointment to the SHMC staff in early 2003 supports a conclusion

that there existed a “substantial likelihood of imminent injury”;

2. What factor the defendants advance as leading a reasonable person to the

conclusion how an unidentified June 2003 encounter with an employee supports a

conclusion that there exists a “substantial likelihood of imminent injury”;

3. Three alleged refusals on June 30 to respond to general surgery on call assignment

in the emergency department since the proof will show that the on call schedule given

to Dr. Curtsinger showed that he was not on call that night and that Dr. Curtsinger

offered to come in if the doctor who was on call could not be reached;

4. Why comments made to others expressing concern about Dr. Angie Larson

somehow justified the conclusion that there was a substantial likelihood of imminent

injury;

5. An explanation of why the summary suspension of non-existent privileges was in

furtherance of quality health care by preventing a substantial likelihood of imminent

injury;

-4-

6. How the denial of [a] nonexistent request to return to staff was in furtherance of

quality [] healthcare by prevent[ing] a substantial likelihood of imminent injury;

7. How the hearing resulted in a determination by the defendants that the plaintiff

should not be reinstated to the staff when the fair hearing committee found in the

plaintiff’s favor; and

8. The facts defendants rely upon in establishing a reasonable investigation into the

various accusations and how they justified a conclusion that the actions taken were

in furtherance of quality healthcare to prevent a substantial likelihood of imminent

injury.

Dr. Curtsinger’s discovery request primarily concerned the reasoning behind the professional

peer review committee’s decision to deny Dr. Curtsinger reinstatement. Clearly, this inquiry into

the deliberative process is prohibited by the Tennessee Peer Review Law. Likewise, the remaining

discovery requests concerned facts obtained by the professional peer review committee surrounding

four incidents upon which Dr. Curtsinger’s summary suspension was based, the efforts to obtain such

facts, and other facts concerning later incidents of allegedly disruptive behavior. Based on the broad

language of Tennessee Code Annotated section 63-6-219(e), we agree with the trial court that this

information is not discoverable because it constitutes “information ... or other data furnished to any

committee as defined in this section, and any findings, conclusions or recommendations resulting

from the proceedings of such committee.” Accordingly, we find no merit in Dr. Curtsinger’s first

assignment of error.

II. SUBMISSION OF ADDITIONAL AFFIDAVITS

Dr. Curtsinger next contends that the trial court erred in allowing Defendants to submit

additional affidavits prior to ruling on Defendants’ motion for partial summary judgment. On April

28, 2005, the trial court granted Defendants an extension of time in which to file under seal the

affidavits of two MEC members, providing the court with confidential information that Defendants

were given in making their peer review determination, although the court found that Dr. Curtsinger

had “demonstrated sufficient facts to meet the burden of proof filed by the defendants.” The court

reasoned that “the purpose of summary judgment is to lower costs and increase efficiency by

narrowing the issues for trial. In the interests of efficiency of time and money, the Court is

persuaded to allow the defendants to file the additional papers to provide the Court complete facts

to maximize the efficiencies of the motion for partial summary judgment and because HCQIA

immunity is a question of law for the Court to decide.” Dr. Curtsinger contends that in allowing

Defendants to file additional affidavits, the trial court violated Tennessee Rule of Civil Procedure

56.04 which states that “[t]he adverse party may serve and file opposing affidavits not later than five

(5) days before the hearing.” We disagree.

Tennessee Rule of Civil Procedure 56.06 provides that “[t]he court may permit affidavits to

be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.” And

relief from the deadlines imposed by the Tennessee Rules of Civil Procedure rests soundly within

the discretion of the trial court. Kenyon v. Handal, 122 S.W.3d 743, 753 (Tenn.Ct.App.2003).

-5-

Moreover, Dr. Curtsinger was by no means prejudiced by the court’s decision to allow Defendants

to submit additional affidavits since the court also provided Dr. Curtsinger with additional time in

which to file supplemental affidavits and reply briefs. Thus, we find no error in the trial court’s

decision to allow Defendants to submit additional affidavits prior to ruling on Defendants’ motion

for partial summary judgment.

III. PARTIAL SUMMARY JUDGMENT UNDER HCQIA

AND THE TENNESSEE PEER REVIEW LAW

Dr. Curtsinger’s primary contention on appeal concerns the trial court’s decision to grant

Defendants’ motion for partial summary judgment thereby dismissing all of Dr. Curtsinger’s

monetary claims. Under HCQIA and the Tennessee Peer Review Law1, the individuals and

institutions participating in or assisting with a professional medical review process are generally

granted immunity from monetary damages for their actions. 42 U.S.C. § 11111; Tenn.Code Ann §

63-6-219(d)(1); Peyton v. Johnson City Med. Ctr., 101 S.W.3d 76, 78 (Tenn.Ct.App.2002). The

purpose of granting such individuals and entities immunity is “to encourage committees made up

of Tennessee’s licensed physicians to candidly, conscientiously, and objectively evaluate and review

their peers’ professional conduct, competence, and ability to practice medicine.” Tenn.Code Ann.

§ 63-6-219(b)(1). However, in order for immunity to apply, the professional review action must be

taken:

(1) in the reasonable belief that the action was in the furtherance of quality health

care;

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

(3) after adequate notice and hearing procedures are afforded to the physician

involved or after such other procedures as are fair to the physician under the

circumstances; and

(4) in the reasonable belief that the action was warranted by the facts known after

such reasonable effort to obtain facts and after meeting the requirements of para-

graph (3)...

42 U.S.C. §11112(a).

HCQIA and the Tennessee Peer Review Law also provide a presumption that the professional

review action properly met the four prong test for immunity, unless the plaintiff can rebut the

presumption by a preponderance of the evidence. 42 U.S.C. § 11112(a); Tenn.Code Ann. § 63-6-

219(d)(3); Peyton, 101 S.W.3d at 83. Accordingly, the standard for reviewing a grant of summary

judgment under HCQIA and the Tennessee Peer Review Law is “unconventional: although 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

1

The Court would note that the provisions of HCQIA are “essentially identical to those of the Tennessee Peer

Review Law.” Ironside v. Simi Valley Hosp., 188 F.3d 350, 353-54 (6th Cir.1999).

-6-

Hospital’s peer review disciplinary process failed to meet the standards of HCQIA.’” 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)). Therefore, it is not our duty at this time to

determine whether the disciplinary action taken by Defendants against Dr. Curtsinger was correct,

but rather, whether Dr. Curtsinger has shown by a preponderance of the evidence that Defendants

failed to satisfy the four prong test provided in 42 U.S.C. § 11112(a).

In doing so, we must first address whether the trial court properly found that the professional

review action was taken “in the reasonable belief that the action was in the furtherance of quality

health care.” 42 U.S.C. § 11112(a)(1). We use an objective standard of reasonableness in

determining the sufficiency of the basis of Defendants’ action. Peyton, 101 S.W.3d at 84. The

reasonable belief standard provided in 42 U.S.C. § 11112(a)(1) is satisfied “if the reviewers, with

the information available to them at the time of the professional review action, would reasonably

have concluded that their actions would restrict incompetent behavior or would protect patients.”

Peyton, 101 S.W.3d at 84 (quoting H.R.Rep. No. 903, 99th Cong., 2d Sess. 10 (1986)).

Based on the affidavits of Drs. Giovanetti and Wieck, we agree with the trial court that

Defendants reasonably believed that Dr. Curtsinger’s disruptive behavior and his failure to respond

to three emergency room calls on June 30, 2003, would hinder quality health care. Dr. Wieck

discussed the incidents which raised concern over Dr. Curtsinger’s personal and professional ability

to interact with patients and other SHMC employees in his affidavit, where he stated:

...Specifically, there were reports that, in October 2002, Dr. Curtsinger disrupted the

ER by “ranting and raving” for at least one hour regarding the process by which a

patient came into the ER. Dr. Curtsinger’s disruptive behavior and inappropriate

commentary affected the ER nursing staff and at least a few physicians. And during

the hospitalization of this same patient, she rendered a complaint about Dr.

Curtsinger...

7. A second collegial intervention with Dr. Curtsinger was held by the Surgical

Advisory Committee in February 2003. The collegial intervention was held because

of reports that Dr. Curtsinger refused to issue a STAT order for a small bowel follow-

through exam that he ordered to rule out a possible bowel obstruction and to speak

directly with the on-call radiologist to discuss the need for the procedure. The

conflict persisted for approximately six hours and left the patient and her family upset

and the nursing staff frustrated.

...

a. A patient complaint about statements made by Dr. Curtsinger on

November 19, 2002, during the course of Dr. Curtsinger’s final

examination of the patient. Reportedly with three visitors present, Dr.

Curtsinger made the following statements to the patient: (1) “You

need to take your ass to Meharry to have it looked at where it is free;”

and (2) “You need to get your act straight because being a cook isn’t

cutting it, and you need to get a real job with benefits.”

-7-

b. Dr. Angie Larsen advised the Chief of Staff on June 30, 2003 that

Dr. Curtsinger had made demeaning and potentially, professionally

damaging comments about her. Specifically, he had discussed with

other members of the Medical Staff and nurses his stated opinion that

Dr. Larsen was emotionally and mentally unstable and the possibility

that she might be suffering a “nervous breakdown.”

c. The CEO was advised that Dr. Curtsinger had commented to a

nurse that she should “get out [of Southern Hills]” while she could

and that [Southern Hills] is going down.”

...

13. Just after the July 2003 summary suspension was lifted, a patient who was

scheduled to have a procedure at Southern Hills complained that Dr. Curtsinger had

lied to her about two matters. First, Dr. Curtsinger lied to her about why the

previously scheduled procedure had to be re-scheduled. Second, Dr. Curtsinger

either stated to the patient or gave the patient the impression that a particular

physician was his partner.

Dr. Curtsinger however argues that his allegedly disruptive behavior could not have hindered

quality healthcare because his behavior had no effect on his qualifications and competence as a

surgeon. A similar argument was made and dismissed by the court in Gordon v. Lewistown Hosp.,

423 F.3d 184 (3rd Cir.2005). Said the court:

It is Gordon's position that the professional conduct at issue did not affect adversely

the health or welfare of patients as required by § 11151(9), and therefore there was

no professional review action to confer immunity on the Hospital. He asserts that he

only could be expelled from the medical staff as a result of a professional review

action if it was based on either his competence or his professional conduct, which

conduct affects or could affect adversely the health or welfare of a patient or patients.

See 42 U.S.C. § 11151(9). Since his professional competence has never been in

dispute, Gordon argues that he was expelled for his conduct in violating the

Conditions-his telephone conversation with Mrs. Seecora and the June 4th letter.

According to Gordon, in order to qualify its actions based on that conduct as a

“professional review action” entitled to immunity under the HCQIA, the Hospital

bore the burden to show that his conduct “could affect adversely the health or welfare

of patients”.

...

Such unprofessional conduct on the part of a physician is within the purview

of a “professional review action” under the HCQIA. The plain language of the

statute indicates the breadth of “conduct” encompassed within the definition of

“professional review action” by the inclusion of conduct that “could affect adversely

the health or welfare of a patient.” 42 U.S.C. § 11151(9). The statute contemplates

not only potential harm through use of the term “could,” but it also affords protection

to actions taken against physician conduct that either impacts or potentially impacts

-8-

patient “welfare” adversely, meaning patient “well being in any respect; prosperity.”

Black's Law Dictionary (West Group, 7th Ed.1999). Even if the statutory language

was deemed to be ambiguous, the legislative history would support the same

construction. See Health Care Quality Improvement Act of 1986, H.R. 5540, 99th

Cong.2d Session (1986), 132 Cong. Rec. at 30768 (Oct. 14, 1986) (“competence and

professional conduct should be interpreted in a way that is sufficiently broad to

protect legitimate actions based on matters that raise concerns for patients or patient

care.”). Other courts similarly have applied immunity in circumstances where a

physician's unprofessional “conduct” was an issue in the challenged professional

review actions. See, e.g., Brader v. Allegheny Gen. Hosp., 167 F.3d 832, 835 (3d

Cir.1999) (affirming summary judgment in favor of Hospital afforded HCQIA

immunity for peer review decisions involving a surgeon characterized as “a

disruptive force in the hospital”); Bryan v. James E. Holmes Reg'l Med. Ctr., 33 F.3d

1318, 1324 (11th Cir.1994) (granting immunity when physician's privileges revoked

for inappropriate and unprofessional behavior stemming from his “being a volcanic-

tempered perfectionist, a difficult man with whom to work, and a person who

regularly viewed it as his obligation to criticize staff members at [the Hospital] for

perceived incompetence or inefficiency,” some of which occurred in front of patients

about to undergo surgery); Morgan v. PeaceHealth, Inc., 101 Wash.App. 750, 14

P.3d 773 (2000) (upholding immunity when physician's privileges suspended for

sexual harassment and inappropriate behavior with patients); Meyers v.

Columbia/HCA Healthcare Corp., 341 F.3d 461 (6th Cir.2003) (upholding immunity

when physician's reappointment denied because of failure to timely disclose

disciplinary actions in another state, personality problem and various incidents of

disruptive behavior); Imperial v. Suburban Hosp. Ass'n, 37 F.3d 1026 (4th Cir.1994)

(affirming district court order granting summary judgment to hospital where

physician's reappointment to staff denied on basis of hospital's conclusion that his

professional activities did not meet standard of care, he was deficient in his record

keeping, patient management, and work relationships with health care professionals

at the hospital).

Gordon, 423 F.3d at 202-204.

Because “‘[q]uality healthcare’ is not limited to clinical competence, but includes matters of

general behavior and ethical conduct,” Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461,

469 (6th Cir.2003), we find no merit in Dr. Curtsinger’s argument that the peer review committee

could not have reasonably believed that his disruptive behavior and unprofessional conduct towards

patients and fellow employees would jeopardize the quality of healthcare at SHMC.

Defendants also based Dr. Curtsinger’s suspension on evidence that Dr. Curtsinger refused

to respond to three calls from the SHMC emergency room on June 30, 2003. Dr. Wieck explained

the June 30, 2003, incident in his affidavit:

-9-

8. From approximately 12:43 a.m. through 4:28 a.m. on June 30, 2003, Dr.

Curtsinger refused to accept three calls from the ER for surgical consultations. All

three patients were very ill with serious conditions requiring the services of a

surgeon; additionally, each case was an emergency. The first call concerned a patient

with a collapsed lung. The second call concerned a patient who had been stabbed in

the buttocks area with a Ginsu knife; the ER physician needed a surgeon because he

could not stop the bleeding. The third and final call concerned a 49 year old female

with an acute abdomen. Later on June 30th, emergenc[y] surgery was required for

this patient because it was determined she had a perforated colon.

9. Dr. Curtsinger was the surgeon on call from 0700 on June 29, 2003 through 0700

on June 30, 2003, according to the ER’s revised call schedule. The reports from the

hospital personnel who contacted Dr. Curtsinger when surgical consultations were

needed did not indicate that Dr. Curtsinger offered to respond to the call if another

physician did not. To the contrary, it was reported that Dr. Curtsinger’s response to

each call from the ER was that he was not on call and Dr. Angie Larson was on call.

Fortunately, Dr. Larsen agreed to accept the three calls. The only report or indication

that Dr. Curtsinger did not refuse to come in to the hospital to see these patients came

from Dr. Curtsinger at a later time.

While Dr. Curtsinger contends that his failure to respond to the emergency room calls was

merely a result of changes being made to the previously posted schedule without his notice, Dr.

Giovanetti explained in his affidavit that the mistake created an unacceptable and potentially

dangerous interruption to the call schedule.

5. When Dr. Curtsinger did not promptly and appropriately respond to the three calls

from the Emergency Room between 12:43 a.m. and 4:28 a.m. on June 30, 2003, Dr.

Curtsinger interrupted the call schedule. Aside from Dr. Curtsinger’s later

explanation, there was no indication from the reports of Dr. Curtsigner’s behavior

that he offered to respond to the calls if Dr. Angie Larsen refused to see the patients.

Dr. Curtsinger’s reported refusal to immediately respond to the calls by coming into

see the patients and the delays that resulted from the efforts to locate a surgeon

willing to evaluate the patients could have harmed them. Overnight calls to surgeons

from the emergency room for surgical consultations are usually necessitated by

urgent patient care needs. The calls on June 30, 2003 were no different. Not only

did Dr. Curtsinger’s conduct disrupt the flow of patient care in the ER, but it also

posed an imminent threat of harm to patients. Moreover, if this behavior by Dr.

Curtsinger was repeated, patients would again be placed in harm’s way. The Rules

and Regulations for Southern Hills’ Medical Staff provide that call coverage must be

uninterrupted twenty-four hours per day, seven days per week. Thus, reports of Dr.

Curtsinger’s responses to the three calls on June 30, 2003, also constituted a willful

disregard for the Medical Staff Bylaws, Rules, and Regulations.

-10-

Dr. Curtsinger’s arguments fail to present any evidence that the professional review action taken by

SHMC was motivated by anything other than a reasonable belief that the action would further quality

health care.

Under the second prong of the immunity test provided under HCQIA, we must determine

whether the action was taken “after a reasonable effort to obtain the facts of the matter.” 42 U.S.C

§ 11112(a)(2). In making such a determination, we must decide whether “the totality of the process

leading up to the Board’s ‘professional review action’ ... evidenced a reasonable effort to obtain the

facts of the matter.” Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 637 (3rd Cir.1996).

Despite Dr. Curtsinger’s arguments to the contrary, there was an extensive review process

conducted in this matter. First, an investigation was conducted into Dr. Curtsinger’s alleged pattern

of disruptive behavior as well as the events occurring on June 30, 2003. The MEC thereafter held

a special meeting during which time the MEC determined that Dr. Curtsinger’s behavior warranted

suspension. The MEC advised Dr. Curtsinger of his right under SMHC Bylaws to a fair hearing in

order to oppose the sanctions imposed by the MEC. After Dr. Curtsinger applied for reinstatement,

Dr. Curtsinger’s case was further investigated and discussed by the Medical Staff Credentials

Committee, the MEC, and the Board of Trustees. On January 27, 2004, Dr. Curtsinger was afforded

a fair hearing before the peer review committee where he and his attorney were able to present

evidence in support of his reinstatement and to refute the allegations asserted by the MEC. The peer

review committee later presented their report to the MEC and the Board of Trustees, which

ultimately resulted in Dr. Curtsinger’s permanent suspension. Dr. Curtsinger’s arguments that he

was not afforded a peer review hearing before the MEC first issued sanctions against him, that he

allegedly complied with all the requirements set forth by the MEC for reinstatement, and that he

engaged in no disruptive behavior after the initial sanctions issued by the MEC, fail to raise a

genuine issue to rebut the presumption that the professional review action was taken after a

“reasonable effort to obtain the facts.”

The third element of the HCQIA immunity test is whether “adequate notice and hearing

procedures [were] afforded to the physician involved.” 42 U.S.C. § 11112(a)(3). A health care

entity is deemed to have satisfied the third prong of 42 U.S.C. § 11112(a)(3) if the requirements set

forth in 42 U.S.C. § 11112(b) are met:

A health care entity is deemed to have met the adequate notice and hearing

requirement of subsection (a)(3) of this section with respect to a physician if the

following conditions are met (or are waived voluntarily by the physician):

(1) Notice of proposed action

The physician has been given notice stating--

(A)(I) that a professional review action has been proposed to be taken against the

physician,

(ii) reasons for the proposed action,

(B)(I) that the physician has the right to request a hearing on the proposed action,

-11-

(ii) any time limit (of not less than 30 days) within which to request such a hearing,

and

(C) a summary of the rights in the hearing under paragraph (3).

(2) Notice of hearing

If a hearing is requested on a timely basis under paragraph (1)(B), the physician

involved must be given notice stating--

(A) the place, time, and date, of the hearing, which date shall not be less than 30 days

after the date of the notice, and

(B) a list of the witnesses (if any) expected to testify at the hearing on behalf of the

professional review body.

(3) Conduct of hearing and notice

If a hearing is requested on a timely basis under paragraph (1)(B)--

(A) subject to subparagraph (B), the hearing shall be held (as determined by the

health care entity)--

(I) before an arbitrator mutually acceptable to the physician and the health care entity,

(ii) before a hearing officer who is appointed by the entity and who is not in direct

economic competition with the physician involved, or

(iii) before a panel of individuals who are appointed by the entity and are not in direct

economic competition with the physician involved;

(B) the right to the hearing may be forfeited if the physician fails, without good

cause, to appear;

(C) in the hearing the physician involved has the right--

(I) to representation by an attorney or other person of the physician's choice,

(ii) to have a record made of the proceedings, copies of which may be obtained by the

physician upon payment of any reasonable charges associated with the preparation

thereof,

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

(iv) to present evidence determined to be relevant by the hearing officer, regardless

of its admissibility in a court of law, and

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

(D) upon completion of the hearing, the physician involved has the right--

(I) to receive the written recommendation of the arbitrator, officer, or panel,

including a statement of the basis for the recommendations, and

(ii) to receive a written decision of the health care entity, including a statement of the

basis for the decision.

U.S.C. § 11112(b).

In this case, Defendants clearly complied with the conditions contained in 42 U.S.C. §

11112(b). Dr. Curtsinger was provided notice of his first summary suspension and the reasons

therefor on July 2, 2003, as well as notice of his second summary suspension and the reasons therefor

on December 4, 2003. Due to the adverse recommendation of the MEC, Dr. Curtsinger was

informed of his right to request a hearing within fourteen days, which he exercised. Dr. Curtsinger

-12-

was notified of the date, time and place of the hearing as well as the grounds for the adverse action

taken against him. During the hearing on January 26, 2004, Dr. Curtsinger was represented by

counsel and the fair hearing committee heard extensive testimony from several hospital staff

members and physicians. Dr. Curtsinger was provided a copy of the recommendations resulting

from the hearing on February 12, 2004.

However, Dr. Curtsinger does not challenge the sufficiency of the notice and hearing afforded

to him after the second summary suspension, rather, Dr. Curtsinger contends that his alleged

misconduct resulted in two separate professional peer review actions and thus, he was entitled to two

separate investigations and two fair hearings. We addressed this same issue in Peyton, where the

physician argued that his summary suspension and his subsequent permanent suspension were

separate and distinct peer review actions warranting separate compliance with the provisions of 42

U.S.C. § 11112(a) in each instance. Said the Court:

Dr. Peyton argues there were two distinct peer review actions which took

place and the Hospital is, therefore, required to comply with the standards of § 11112

for each particular action. More specifically, Dr. Peyton asserts the summary

suspension was a peer review action, and the subsequent permanent suspension was

a separate and distinct peer review action. We need not decide whether these were

two separate peer review actions or whether one is simply a continuation of the other.

The issue can be resolved by looking to the plain language of § 11112(c)(2), which

states that for purposes of § 11111(a), “nothing in this section shall be construed as

... 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 an individual.” This

is exactly what happened in the present case. Dr. Peyton's hospital privileges were

summarily suspended, and he was thereafter provided with the necessary protections

set forth in the statute. In light of our conclusion above that the revocation of Dr.

Peyton's privileges was undertaken in a reasonable belief “that the action was in the

furtherance of quality health care”, we must likewise conclude the summary

suspension which occurred on April 24, 1994, was taken because the failure to do so

may have resulted in an imminent danger to the health of an individual. 42 U.S.C. §

11112(c)(2).

Peyton, 101 S.W.3d at 88.

42 U.S.C. § 11112(c)(2) recognizes that certain actions, which may result in the imminent

danger to the health of an individual, justify immediate suspension subject to subsequent notice and

hearing. The MEC summarily suspended Dr. Curtsinger following his refusal to respond to three

emergency room calls, which may reasonably have been expected to result in the imminent danger

to the health of a patient. Dr. Curtsinger was thereafter afforded the necessary statutory protections

provided in 42 U.S.C. § 11112(b). Therefore, based on Peyton and the provisions of 42 U.S.C. §

-13-

11112(c)(2), we find no merit in Dr. Curtsinger’s contention that he was entitled to two separate

investigations and hearings in order to fulfill the requirements of 42 U.S.C. § 11112(a)(3).

The final prong of the HCQIA immunity test provides that the peer review action must be

taken “in the reasonable belief that the action was warranted by the facts known after such reasonable

effort to obtain facts and after meeting the requirements of paragraph (3).” 42 U.S.C. § 11112(a)(4).

“Our analysis under § 11112(a)(4) closely tracks our analysis under § 11112(a)(1).” Sugarbaker v.

SSM Health Care, 190 F.3d 905, 916 (8th Cir.1999). While Dr. Curtsinger challenges certain

underlying facts upon which Defendants relied, he has not shown that the facts were “so obviously

mistaken or inadequate as to make reliance on them unreasonable.” Mathews, 87 F.3d at 638. In

light of the evidence documenting Dr. Curtsinger’s pattern of disruptive behavior and his alleged

refusal to respond to three emergency room calls, we find that there is no genuine issue as to whether

Defendants’ action was taken in the reasonable belief that it was warranted by the facts.

Having failed to show by a preponderance of the evidence that Defendants did not comply

with the four prong test provided in 42 U.S.C. § 11112(a), we affirm the decision of the trial court

granting Defendants partial summary judgment pursuant to HCQIA and the Tennessee Peer Review

Law.

IV. INFORMATION SUPPLIED TO THE NATIONAL PRACTITIONER DATA BANK

Dr. Curtsinger lastly contends that the trial court erred in finding that the information

supplied by Defendants to the National Practitioner Data Bank was sufficiently accurate and not

made in bad faith or with malice. According to 42 U.S.C. § 11133(a)(1), “Each health care entity

which takes a professional review action that adversely affects the clinical privileges of a physician

for a period a longer than 30 days shall report [the action] to the [State] Board of Medical

Examiners.” The State Board of Medical Examiners is then required to report the same to the

National Practitioner Data Bank. 45 C.F.R. § 60.9(b). 42 U.S.C. § 11137(c) protects healthcare

entities who are required to issue professional review action reports by stating that, “[n]o person or

entity ... shall be held liable in any civil action with respect to any report made under this subchapter

... without knowledge of the falsity of the information contained in the report.” Therefore, healthcare

entities “are entitled to immunity for reporting unless there is sufficient evidence for a jury to

conclude that the report was false and the reporting party knew it was false.” Meyers v. Logan Mem.

Hosp., 82 F.Supp.2d 707, 716 (W.D.Ky.2000).

Dr. Curtsinger claims that every statement in Defendants’ report was false or should not have

been reported. We therefore must review the record and the report provided to the National

Practitioner Data Bank in order to determine whether there was evidence of knowing falsity. The

report stated:

Physician was suspended by the hospital medical executive committee for

disruptive/inappropriate behavior involving patients, employees and physicians.

Summary suspension was lifted contingent on physician’s going on a leave of

-14-

absence and being evaluated by the state impaired physician’s organization

(Tennessee Medical Foundation or TMF). Physician cooperated with the TMF and

applied for permission to end his leave and be reinstated to the hospital staff. While

physician’s request for reinstatement was pending, the MEC again suspended his

privileges, based on reports of continued disruptive behavior. Physician requested

a fair hearing. The hearing resulted in a determination by the MEC that the physician

should not be reinstated to the staff, due to his disruptive behavior. Physician did not

appeal the MEC’s determination.

After reviewing the record, we find that Dr. Curtsinger failed to present any evidence, other

than his own subjective belief, that the statements made to the National Practitioner Data Bank were

false, much less that Defendants were aware that the statements were false. We therefore affirm the

trial court’s judgment, entitling Defendants to immunity for reporting the action of the peer review

committee to the State Medical Board and the National Practitioner Data Bank.

V. CONCLUSION

In considering the Motion for Summary Judgment in this case, we have followed the

blueprint laid out for this Court by Judge Swiney in Peyton, 101 S.W.3d 76. Therein, this Court

carefully explains the “unconventional” standard for summary judgment mandated by 42 U.S.C. §

11112(a) and universally followed in federal court decision. This “unconventional” standard was

not mandated by the U.S. Congress in a vacuum. It represented a policy decision by Congress to

encourage self-policing by healthcare professionals in response to what it determined to be a crisis.

When Congress passed the HCQIA in 1986, it was responding to a crisis in

the monitoring of health care professionals. Although state licensing boards had long

monitored the conduct and competence of their own health care workers, 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). Finding that incompetent “physicians find it all to[o] easy to move to

different hospitals or states and continue their practices in these new locations,”

Congress mandated the creation of a national database that recorded incidents of

malpractice and that was available for all health care entities to review when

screening potential employees. H.R.Rep. No. 99-903, at 2, reprinted in 1986

U.S.C.C.A.N.6384, 6385 (hereinafter “H.R.Rep. No. 99-903"). Before passage of

the HCQIA in 1986, threats of antitrust action and other lawsuits often deterred

health care entities from conducting effective peer review. In 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. See

Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 632 (3d Cir.1996) (describing

-15-

legislative history of the HCQIA); Bryan v. James E. Holmes Reg’l Med. Ctr., 33

F.3d 1318, 1332 (11th Cir.1994) (listing Congressional motivations for passing the

HCQIA).

The HCQIA mandates that a health care entity’s review of the competence of

a physician shall not result in its liability “in damages under any law of the United

States or of any State,” if such a peer review “meets all the standards specified in

section 11112(a) of this title.” 42 U.S.C. § 11111(a).

Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 31 (1st Cir.2002) (footnote omitted).

As the Singh court stated in footnote:

Since HCQIA immunity may only be overcome by a preponderance of the

evidence, the statutory presumption in favor of the health care entity shifts to the

plaintiff “not only the burden of producing evidence but the burden of persuasion as

well.” See Jerome A. Hoffman, Thinking About Presumptions: The Presumption of

Agency from Ownership as Study Specimen, 48 Ala. L.Rev. 885, 896-97 (1997)

(examining the “Thayer-Wigmore effect” and the “Morgan effect” of presumptions).

Of course, a defendant moving for summary judgment on the basis of HCQIA

immunity can choose to submit evidentiary material in support of its motion instead

of relying solely on the evidentiary weight of the statutory presumption. That is a

choice for the litigant.

308 F.3d at 33 n.5.

In the context of sustaining the grant of a summary judgement motion by the trial court, the

U.S. Third Circuit Court of Appeals in Brader, 167 F.3d 832, stated:

In this case, a physician who had been disciplined by his hospital sought to

have a court revisit that adverse medical and administrative judgment. This is

precisely the type of case that Congress intended to foreclose in passing the HCQIA.

“[t]he intent of [the HCQIA] was not to disturb, but to reinforce, the preexisting

reluctance of courts to substitute their judgment on the merits for that of health care

professionals and of the governing bodies of hospitals in an area within their

expertise.” Bryan, 33 F.3d at 1337.

We conclude that Brader has failed to rebut the presumption that AGH met

the requirements for immunity under the HCQIA. He has failed to come forth with

sufficient evidence to allow a reasonable jury to conclude that the Hosptial did not

provide him with adequate and appropriate procedures, or that AGH did not act at all

times in the reasonable belief that its actions would further quality health care. The

grant of summary judgment to AGH will therefore be affirmed.

167 F.3d at 843.

-16-

As was the case in Peyton, Dr. Curtsinger has failed the “unconventional” summary judgment

standard in this case.

Having found no merit in Appellant’s assignments of error, we affirm the judgment of the

trial court in all respects. The costs of appeal are assessed against Appellant, Dr. Curtsinger.

___________________________________

WILLIAM B. CAIN, JUDGE

-17-