Petition for Writ of Certiorari — Victor Bernard Williams, Petitioner v. Baptist Health, dba Baptist Health Medical Center, et al.
Supreme Court briefOct 15, 2019
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No.
IN THE
Supreme Court of the United States
VICTOR B. WILLIAMS, M.D., PETITIONER,
v.
BAPTIST HEALTH, DBA BAPTIST HEALTH MEDICAL
CENTER, DOUGLAS WEEKS, EVERETT TUCKER, TIM
BURSON, SCOTT MAROTTI, SUSAN KEATHLEY, CHRIS CATE,
JOHN E. HEARNSBERGER, JOSEPH M. BECK, CHARLES
MABRY AND JAMES COUNCE AND THE SURGICAL CLINIC
OF CENTRAL ARKANSAS
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
ANDRE K. VALLEY
423 Rightor, Suite #2
Helena-W. Helena, AR 72342
Andrekvalley@gmail.com
870-338-6487 Ext.2
ERIC E. WYATT
Counsel of Record
GEORGE W. MCGRIFF
George W. McGriff
& Associates
600 Colonial Park Dr
Roswell, GA 30075
ericewyatt@icloud.com
(770) 649-7160
CURRY & TAYLOR 202-350-9073
i
QUESTION(S) PRESENTED
1.
Whether the April 3, 2014 revocation of Plaintiff’s
Arkansas medical license by the Arkansas State
Board of Medical Examiners (“Medical Board”)
gave rise to a “new” separate and independent
federal cause of action not barred by res judicata
due to a civil action filed in Arkansas state court on
February 25, 2014.
2.
Whether the defendants are entitled to qualified
immunity instead of absolute with respect to
Plaintiff’s federal claims arising from the
improper revocation of his Arkansas medical
license and the subsequent adverse negative
reports related thereto.
ii
TABLE OF CONTENTS
Page
QUESTION(S) PRESENTED ........................................................... i
TABLE OF AUTHORITIES ............................................................iii
OPINIONS BELOW ......................................................................... 1
JURISDICTION ............................................................................... 2
RELEVANT PROVISIONS INVOLVED ......................................... 3
STATEMENT .................................................................................. 5
REASONS FOR GRANTING THE PETITION ............................... 29
CONCLUSION ............................................................................... 31
APPENDIX
May 29, 2019 Eighth Circuit Opinion .....................................1a
May 29, 2019 Eighth Circuit Judgment ..................................4a
May 31, 2018 E.D. Judgment....................................................6a
May 31, 2018 E.D. Ark. Opinion Granting Beck and
Hearnsberger’s Motion for Summary ..................................7a
March 8, 2018 E.D. Ark. Opinion Granting Counce
and Mabry’s Motion for Summary Judgment ................. 12a
September 18, 2017 E.D. Ark. Opinion Granting
Baptist Health Defendants’ Motion to Dismiss ............... 14a
Appellant’s December 13, 2018 Eighth Circuit Reply
Brief ........................................................................................ 21a
August 23, 2018 Eighth Circuit Brief of Appellant51a
E.D. Ark. Complaint Filed on March, 31, 2017 ................. 107a
June 12, 2019 Petition for Rehearing. ................................. 162a
July 15, 2019 Order denying Rehearing ............................. 169a
iii
TABLE OF AUTHORITIES
Page
CASES
ARKANSAS STATE MEDICAL BOARD V. CRYER, 521
S.W.3D 459, 465 (ARK. 2017).................................................. 26
BAKER GROUP V. BURLINGTON NORTHERN AND
SANTA FE RAILWAY CO., 228 F. 3D 883 (8TH CIR.
2000) ......................................................................................... 18
BD. OF REGENTS V. TOMANIO, 446 U.S. 478, 491, 100
S. CT. 1790, 1799, 64 L. ED. 2D 440, 452 (1980)..................... 18
BRASWELL V. HAYWOOD REG'L MED. CTR., 352
F.SUPP. 2D 639, 650 (W.D. N.C. 2005).................................. 26
BUCKLEY V. FITZSIMMONS, 509 U.S. 259, 113 S. CT.
2602, 125 L. ED. 2D 209 (1993) ............................................... 29
BUFORD V. TREMAYNE, 747 F.2D 445, 448 (8TH CIR.
1984) ......................................................................................... 22
BURNS V. REED, 500 U.S. 478, 495, 114 L. ED. 2D
547, 111 S. CT. 1934 (1991) ..................................................... 27
COSTELLO V. UNITED STATES, 365 U.S. 265, 286, 81
S. CT. 534 ................................................................................. 25
DIBLASIO V. NOVELLO, 344 F.3D 292 (2ND CIR.
2003) ......................................................................................... 28
DODD V. SPARKS REGIONAL MEDICAL CENTER,
204 S.W.3D 579 (2005)............................................................. 17
FEDERAL RULES OF EVIDENCE AND DAUBERT V.
MERRELL DOW PHARMACEUTICALS, INC., 509
U.S. 579 (1993) ........................................................................ 17
FORD V. ST. PAUL FIRE & MARINE INS. CO., 339
ARK. 434, 437, 5 S.W.3D 460, 462 (1999) ............................... 18
FRYAR V. TOUCHSTONE PHYSICAL THERAPY, INC.,
229 S.W.3D 13 (ARK. 2006)..................................................... 18
GREENWOOD V. ROSS, 778 F.2D 448 (8TH CIR. 1985) ............. 30
HAFER V. MELO, 502 U.S. 21, 31 (1991) ................................... 27
HOLLAND V. MUSCATINE GENERAL HOSPITAL, 971
F. SUPP. 385, 390 (S.D. IOWA 1997) ...................................... 26
JOHNSON V. COUNTY OF NASSAU, 480 F. SUPP. 2D
581, 607-608 (E.D.N.Y. 2007)................................................. 23
iv
LUGAR V. EDMONDSON OIL CO., 457 U.S. 922, 942,
102 S. CT. 2744, 2756, 73 L. ED. 482, 498 (1982) ................... 22
LUNDQUIST V. RICE MEMORIAL HOSPITAL, 238
F.3D 975 (8TH CIR. 2000)........................................................ 18
MCDONOUGH V. SMITH, 139 S. CT. 2149, 204 L.ED.
2D 506 (JUNE 20, 2019) ......................................................30, 31
NEAL V. SPARKS REG'L MED. CTR., 422 S.W.3D 116............. 18
PAUL V. DAVIS, 424 U.S. 693, 47 L. ED. 2D 405, 96 S.
CT. 1155 (1976) ........................................................................ 20
U.S. APP. LEXIS 15875, 2019 WL 2305570 (2019).................... 2
ULRICH V. CITY & COUNTY OF SAN FRANCISCO,
308 F.3D 968, 982-983 (9TH CIR. 2002) .................................. 20
WILLIAMS V. BAPTIST HEALTH, 770 FED. APPX.
781 2019 U.S. App. LEXIS 15875, 2019 WL
2305570 (2019) ........................................................................... 2
WINEGAR V. DES MOINES INDEP. COMMUNITY
SCH. DIST., 20 F.3D 895 (8TH CIR. 1994) .............................. 30
WOMAN'S HEALTH V. HELLERSTEDT, 136 S. CT.
2292, 2305, 195 L. ED. 2D 665, 681 (2016) ...................19, 29, 32
STATUTES
28 U.S.C. § 1254(1)........................................................................ 2
28 U.S.C. § 1367 .................................................................... 19, 23
42 U.S.C. § 1981 ...................................................................... 3, 26
42 U.S.C. § 1982 ............................................................................ 4
42 U.S.C. §§ 2000e ...................................................................... 26
42U.S.C. § 1983 .................................................................. passim
42 U.S.C. §§ 11101 ...................................................................... 26
42 U.S.C. §11111 ......................................................................... 26
A.C.A. § 16-114-206(a)................................................................ 17
A.C.A. § 17-95-301(h)(2)............................................................. 27
A.C.A. § 17-95-410(c)(2) ............................................................. 13
CONST. PROVISIONS
USCS Const. Amend. 1................................................................ 3
USCS Const. Amend. 14.............................................................. 3
1
OPINIONS BELOW
Related Proceeding (Arkansas State Court )1
Petitioner filed two separate actions in Pulaski
Circuit Court, State of Arkansas. The first case, Civil
Action No. 60 CV-14-808 was filed on February 25,
2014, and the final judgment for defendants was
entered on April 13, 2017. An appeal of the final
judgment was filed on November 7, 2017, Arkansas
Court of Appeals, CV-17-924, and currently remains
pending.
On May 2, 2014 Petitioner filed Civil Action No.
60 CV-14-1739 in Pulaski Circuit Court, State of
Arkansas. A Consent Order was entered on November
3, 2015.
Federal Court Proceedings
On March 31, 2017 Petitioner filed this federal
action Civil Action No., 4:17-CV-205-JM, in the United
States District Court, Eastern District of Arkansas.
The district court’s September 19, 2017 opinion
granting the Baptist Health defendants’ motion to
dismiss was not reported and is reproduced in the
Appendix herein at 14a - 20a. The district court’s March
8, 2018 opinion granting Counce and and Mabry’s
motion for summary judgment was not reported and is
1
Arkansas State Court Proceedings are included because of the
district court’s reliance upon the doctrine of res judicata, which
was unsuccessfully challenged by Plaintiff on appeal to the Eight
Circuit Court of Appeals
2
reproduced in the Appendix herein at 12a-13a. The
district court’s May 31, 2018 opinion granting
Hearnsberger and Beck’s motion for summary
judgment was not reported and is reproduced in the
Appendix herein at 7a-11a.
On July 2, 2018 Petitioner filed appeal in the
United States Court of Appeals for the Eighth Circuit,
Case No., 18-2423 and Judgment entered on May 29,
2019. The Eighth Circuit Court of Appeals’ opinion was
not reported, Williams v. Baptist Health, 770 Fed.
Appx. 781, 2019 U.S. App. LEXIS 15875, 2019 WL
2305570 (2019). Rehearing denied by, Rehearing, en
banc, denied by Williams v. Baptist Health, 2019 U.S.
App. LEXIS 20930 (8th Cir. Ark., July 15, 2019).
JURISDICTION
This Court has jurisdiction to consider this Writ
of Certiorari to the Eighth Circuit Court of Appeals’
judgment affirming the district court’s orders granting
the Baptist defendants’ motion to dismiss and the
remaining defendants’ motions for summary judgment.
The Eight Circuit Court of Appeals issued its opinion
(Pet. App. 1a -3a) and entered judgment (Pet. App. 4a 5a) on May 29, 2019. Williams filed a timely petition for
rehearing (Pet. App. 162a - 168a) on June 12, 2019
which was denied on July 15, 2019. (Pet. App. 169a)
This Court’s jurisdiction is invoked pursuant to 28
U.S.C. § 1254(1).
3
RELEVANT PROVISIONS INVOLVED
USCS Const. Amend. 1
Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble, and to petition the
Government for a redress of grievances.
USCS Const. Amend. 14, § 1
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
wherein they reside. No state shall make or
enforce any law which shall abridge the
privileges or immunities of citizens of the United
States; nor shall any State deprive any person of
life, liberty, or property, without due process of
law; nor deny to any person within its
jurisdiction the equal protection of the laws.
42 U.S.C. § 1981
All persons within the jurisdiction of the United
States shall have the same right in every State
and Territory to make and enforce contracts, to
sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by
white citizens, and shall be subject to like
punishments, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other.
4
42 U.S.C. § 1982
All citizens of the United States shall have the
same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and
personal property.
42U.S.C. § 1983
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or
other proper proceeding for redress, except that
in any action brought against a judicial officer for
an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or
declaratory relief was unavailable. For the
purposes of this section, any Act of Congress
applicable exclusively to the District of Columbia
shall be considered to be a statute of the District
of Columbia.
STATEMENT
Victor Williams, M.D., a black surgeon in Little
Rock, Arkansas filed suit in Arkansas state court
pursuant to the Arkansas Civil Rights Act and
5
Arkansas state law alleging that after it improperly
terminated his medical staff privileges, Baptist Health
Medical Center (“Baptist Health”) inappropriately and
prematurely2 elicited assistance from the Arkansas
State Medical Board (“Medical Board”) in 2010 in order
to help fend off his claims of racial discrimination.
On November 25, 2003, Plaintiff was first
granted medical staff privileges at Baptist Health
Medical Center, Little Rock for the two year time
period November 2003 through November 2005.
Complaint, ¶ 20. Pet App. 116a. At the time that he
obtained medical staff privileges at Baptist Health
Medical Center, Plaintiff was the only AfricanAmerican surgeon in Little Rock, Arkansas, who
provided both the range and the type of surgeries to
patients in and around Pulaski County, Arkansas, in the
areas of general, cardiac, thoracic and vascular surgery.
Id.
In November, 2008, after having reappointed
and credentialed for his third two year period at
Baptist Health, Plaintiff purchased a parcel of real
property located at 9712 W. Markham St., Little Rock,
Arkansas for the purpose of constructing a medical
office to provide treatment for his surgical patients, to
include those patients that he treated at Baptist Health
Medical Center. Complaint, ¶s 21-23. Pet App. 116a 117a. In the fall of 2009, Plaintiff completed the build
2
Contrary to both Baptist and the Board’s customary policies and
procedures, Williams had not yet exhausted his appeals at Baptist
before he was required to appear before the Board in late 2010.
The Baptist decision terminating his medical staff privileges
became final in April, 2011. Complaint, ¶ 54. Pet App. 135a.
6
out process for his medical office located at 9712 W.
Markham St., Little Rock, Arkansas, and began
advertising the same to inform patients, both current
and potential, that he would begin servicing and
treating patients there. Complaint, ¶ 25. Pet App.
117a.
On November 3, 2009, Plaintiff submitted his
third application for reappointment of his medical staff
privileges at Baptist Health Medical Center, Little
Rock. Complaint, ¶ 24. Pet App. 117a. At the time that
Plaintiff applied to renew his medical staff privileges at
Baptist Health Medical Center, Little Rock, in the fall
of 2009, he had no reports of medical malpractice
payments, no reports of state licensure actions, no
reports of exclusions or debarment actions, no reports
of clinical privileges actions, no reports of professional
society actions, and no reports of DEA/Federal
licensure actions3 Complaint, ¶ 26. Pet App. 117a.
On January 18, 2010, Defendant Burson, acting
in his capacity as Chief of the Department of Surgery at
Baptist Health Medical Center, signed Plaintiff’s
application for re-credentialing and recommended that
Plaintiff’s application for reappointment to the medical
staff be approved, but after Plaintiff’s application for
reappointment was approved by the Board of Trustees,
3
According to reports generated during Plaintiffs 2009
credentialing re-application process, it was documented that
during the one year period September 1, 2008, through August 31,
2009, Plaintiff had performed over 550 surgical procedures at
Baptist Health Medical Center, Little Rock. Complaint, ¶ 29. Pet
App. 119a.
7
his medical staff privileges were revoked in April, 2010.
Complaint, ¶s 39-42. Pet App. 126a - 128a.
After his medical staff privileges were revoked
in April 2010, Plaintiff immediately pursued the appeal
process authorized pursuant to the Baptist Health
Medical Center's medical staff bylaws. Complaint, ¶ 44.
Pet App. 129a. Attorney Gene McKissic notified
defendant Weeks via letter dated May 14, 2010, that he
would be representing Plaintiff during the appellate
process at Baptist Health Medical Center. Id. McKissic
formally filed a notice of appeal of the Credentials
Committee's recommendation to terminate Plaintiff’s
medical staff privileges on May 25, 2010, and included in
the notice of appeal to Baptist Health, a statement that
Plaintiff believed that the actions taken against him
were "racially biased and discriminatory," and that
white physicians at Baptist Health Medical Center who
had been subject to corrective action had not "received
such severe punishment." Complaint, ¶ 46. Pet App.
130a.
Contrary to its established policy and prior to
Plaintiff’s first appearance before it,4 the Medical Board
submitted medical records related to the medical
treatment at issue to Counce and Mabry in November
2010, nearly five months before Plaintiff had exhausted
his appeal rights under the medical staff bylaws at
Baptist Health. Complaint, ¶s 45 - 52. Pet App. 129a 4
The customary practice at the Arkansas State Medical Board is to
promptly give the physician notice and the opportunity to respond
in writing to any complaints immediately after they are received.
Complaint, ¶s 45, 48. Pet App. 129a - 130a.
8
134a. In addition, Cryer sent a transmittal letter to
them explaining the negligence standard to be utilized
when giving their expert opinion of the records
reviewed. Id. The transmittal correspondence sent by
Cryer to Mabry and Counce also included a legal
memorandum5 explaining the terms, “gross negligence”
and “ignorant malpractice.” Id. Prior to the Medical
Board’s November, 2010 correspondence to Counce and
Mabry, there had been no patient complaints submitted
to the Medical Board about the medical treatment
provided.6 Id. The November 12, 2010, transmittal
letter to Counce requested that the reviews be
provided to the Medical Board before November 19,
2010, in time for the December 2010 Medical Board
meeting, and informed him that, “we very much
appreciate your willingness to work with us to settle
this case promptly.” Id.
After Plaintiff’s first meeting before the Medical
Board in December, 2010, the Medical Board required
him to obtain a proctor and Dr. Carl Gilbert, a board
certified general surgeon agreed to serve as his proctor.
Complaint, ¶ 53. Pet App. 134a. On April 21, 2011,
Plaintiff filed a state court racial discrimination cause of
action (Civil Action No. 60CV-11-1990) against Baptist
Health Medical Center and other individuals for the
5
6
Counce Depo., pp. 29, 39-40, 45, 49-51, Doc. 141, p. 9, 11, 13-14.
There was no malpractice complaint filed with the Arkansas State
Medical Board against Plaintiff by any patient and/or person
related to the medical treatment at issue at the hospital.
Complaint, ¶ 45. Pet App. 129a.
9
termination of his medical staff privileges at Baptist
Health.7 Complaint, ¶ 54. Pet App. 135a.
On October 3, 2011, Dr. Gilbert submitted a written
report to the Medical Board which stated in relevant
part as follows:
I have served as a proctor for Dr. Victor
Williams since December 2010. I have proctored
him during performance of abdominal colon
operations as well as other surgical procedures
at his request. I have discussed the cases with
him prior to surgical interventions and in the
postoperative periods. His knowledge base is
proficient in the areas of general surgery, and I
have found his technical abilities to be proficient
as well. I have no concerns regarding his
judgment or surgical technique. He has handled
patients with multiple complex medical issues
well.
In summary, his preoperative and postoperative
judgment is appropriate and his technical skills
are proficient and within the standard of care.
For any questions please do not hesitate to
contact me.
7
Among other things, Plaintiff’s state court cause of action alleged
that he had been discriminated against because of his race, Black,
in violation of the Arkansas Civil Rights Act of 1993. In addition,
Plaintiff also alleged other state law claims including, conspiracy,
defamation, tortious interference with contracts, and violations of
rights secured by the Arkansas Constitution. Complaint, ¶ 54 Pet
App. 135a.
10
Complaint, ¶ 59. Pet App. 137a - 138a.
On November 22, 2011, the Hospital Defendants
filed a motion for partial summary judgment in Civil
Action No. 60CV-11-1990 regarding Plaintiff's
Arkansas State Constitutional claims, asserting the
absence of "state action."8 Complaint, ¶ 61. Pet App.
138a.
On December 1, 2011, even though Plaintiff had
complied with the condition to obtain a proctor and
even though the proctor had indicated in writing that
he had no concerns regarding Plaintiff’s clinical
judgment or surgical technique, the Medical Board
voted to Notice Plaintiff for a disciplinary hearing, even
though they had told him previously on June 16, 2011 to
"Return in one (1) year for an update [in] (June 2012),"
and even though there were no other acts and/or
omissions committed by Plaintiff subsequent to June
2011 that constituted negligence, malpractice, or an
alleged violation of the Arkansas Medical Practices Act,
(i.e., "gross negligence or ignorant malpractice.")
Complaint ¶ 62. Pet App. 138a - 139a.
When Plaintiff appeared for the properly noticed
hearing on June 8, 2012, along with counsel and several
witnesses who were to testify on his behalf, the Medical
Board voted to postpone the hearing and requested
that Plaintiff cease to perform any surgical procedures
8
The state trial court entered an Order in Civil Action No. 60CV11-1990 granting the Baptist Health defendants’ motion for
summary judgment regarding the absence of “state action” on July
9, 2012. Complaint, ¶ 68. Pet App. 141a.
11
at all until he completed a physician assessment
program (PACE) and submit the results to the Board
upon completion of the program. Complaint, ¶ 63. Pet
App. 139a. Ten days later on June 18, 2012, a
representative of the Baptist Health Defendants
attempted to coerce Plaintiff into voluntarily dismissing
his state court racial discrimination cause of action
(Civil Action No. 60CV-11-1990) brought pursuant to
the Arkansas Civil Rights Act, and stated to Plaintiff
that “if he didn’t dismiss his lawsuit, Plaintiff would
have to either admit that he had done something wrong
to the Arkansas State Medical Board, or lose his
medical license.” Complaint, ¶ 66. Pet App. 141a.
In December 2012 Plaintiff was recertified by
the American Board of Surgery with his recertification
set to expire in July 2023. Complaint, ¶ 70. Pet App.
142a. Plaintiff obtained a voluntary nonsuit pursuant to
Arkansas statute and his Arkansas Civil Rights lawsuit
was dismissed without prejudice on March 15, 2013.
Complaint, ¶ 72. 142a. On August 2, 2013, Plaintiff
applied to attend the KSTAR Physician Assessment
Program at Texas A&M University Health Science
Center. Complaint, 75. 143a. He paid a total amount of $
13,000.00 in costs and fees for the assessment. Id. He
successfully completed the testing dates on September
5-6, 2013, and the KSTAR Meeting and Determinations
on September 30, 2013. Id. The Final Report was
prepared on October 9, 2013, and the surgeon who
interviewed Plaintiff during his assessment indicated
that he would not place any restrictions on Plaintiff’s
ability to continue his surgical practice. Id.
On February 25, 2014, Plaintiff re-filed his action
against Baptist Health Medical Center in Pulaski
12
County Circuit Court, Civil Action No. 60CV-14-808,
and added the Arkansas State Medical Board as a
named defendant because the Board failed to accept
Plaintiff’s completion of the KSTAR program, and in
light of the other facts and circumstances surrounding
Plaintiff’s treatment by the State Medical Board since
October 2010, even though there had been no hearing
held and no finding made by the Board that Plaintiff
had violated the Arkansas Medical Practices Act.
Complaint, ¶ 78. Pet App. 144a.
Among the relief sought in Williams’ February
25, 2014 state law Complaint was a request for
injunctive relief seeking to preclude the Medical Board
from requiring him to attend another physician
assessment program and a request to enjoin the
Medical Board from acting in a manner inconsistent
with its customary policies by interfering with his
ability to have the jury decide all disputed facts and
opinions9 related to the appropriateness of the medical
9
Williams had already provided medical expert opinions by Dr.
Rhonda Tillman to the Baptist Health defendants opining that the
medical treatment at issue did not fall below the applicable
standard of care generally, which would therefore certainly be
lower than and could not rise to the level of “gross negligence”
and/or “ignorant malpractice” which would be required before the
Medical Board would be authorized to revoke a physician’s medical
license. Tillman, a surgeon and professor at the University of
Arkansas, had previously appeared before the Medical Board in
June, 2012 along with Williams and other witnesses who appeared
on his behalf for a properly noticed hearing that was to be held on
that date. The hearing was postponed because one of the Medical
Board’s witnesses, defendant Counce, was not in attendance.
Complaint, ¶ 64. Pet. App. 139a. Doc. 126, pp. 8-9. Tillman’s written
expert opinions that were submitted to Baptist had also been
provided to the Medical Board, and even though they were read by
13
treatment at issue in his pending civil action.10
Complaint, ¶ 81. Pet App. 146a.
See
On April 3, 2014, after being served with the
Complaint, but before filing its Answer, and without
first notifying Williams of the date and time for the
hearing as required by Arkansas law,11 the Medical
Board held a hearing in Williams’ absence and revoked
defendants Hearnsberger and Beck, they were not presented to
the Medical Board members during the April, 2014 hearing and a
genuine issue of fact exists as to whether they were ever
presented to the rest of the Medical Board members as Dr. Betton,
the only Black Medical Board member testified that the Medical
Board members did not have Dr. Tillman’s opinions to evaluate at
the April, 2014 hearing. Doc. 126, p. 9, Betton Depo., pp. 62-63, 7980; Hearnsberger Depo., pp. 81, 125, 130-135; Beck Depo., pp. 8082.
10
See also Walker v. Mem’l Health Sys., 231 F. Supp. 3d 210, 217
(E.D. Tex. 2017),
“The Court hereby ORDERs Defendant Memorial Health
System of East Texas ... its respective officers, agents,
employees, and anyone acting on its behalf to immediately
submit to the National Practitioners Data Bank a Void
Report regarding Dr. Walker, and all such entities and
persons shall refrain from filing any other statements or
reports with the National Practitioners Data Bank
relating to the actions the Hospital has taken against Dr.
Walker in connection with the peer review process that is
the subject of this lawsuit...”
11
See the Arkansas governing law in effect in April, 2014
regarding notice to physicians, A.C.A. § 17-95-410(c)(2), which
requires that the Medical Board send “by registered mail to the
person’s last known address of record a copy of the order and
notice of hearing along with a written notice of the time and place
of the hearing...” See also Compliant, ¶ 82. Pet. App. 146a.
14
his Arkansas medical license. See Complaint, ¶ 94.f12
Pet App. 151a. After the Board revoked Plaintiff’s
Arkansas medical license on April 3, 2014, he
immediately filed an appeal and a Petition for Judicial
Review of the Board’s Order in Pulaski Circuit Court on
May 2, 2014, (Civil Action No. 60CV-14-1739).
Complaint, ¶ 85. Pet. App. 147a - 148a. On that same
date, Plaintiff filed a Motion to Stay Order Revoking
Medical License, and attached thereto an Affidavit of
Gene McKissic, which clearly evidenced that Plaintiff
was not notified of the date and time for the hearing
that had been held in his absence. Id. Despite having
evidence that Williams had not received prior notice of
the April, 2014 hearing, the Medical Board denied his
motion stay the order revoking his medical license. Doc.
126, pp. 1-2, & Exhibits 8-10. In November, 2015,
however, the Board reinstated Williams’ Arkansas
medical license and in accordance with its customary
policies and procedures, and agreed to postpone
disposition and/or any disciplinary action on the medical
treatment at issue until the final disposition of
Williams’ state court cause of action, which is currently
on appeal in the Arkansas state courts even though a
decision as to whether or not an appeal would be filed
had not been made at the time that Plaintiff filed his
12
See Complaint, ¶ 94, Pet App. 151a,
“Because they knew that Plaintiff would not appear at the
hearing held on April 3, 2014, due to a lack of proper notice
of the same, as part of the conspiracy to retaliate against
Plaintiff for complaining about racial discrimination, the
agents, employees, and/or representatives of the Arkansas
State Medical Board went forward with the hearing and
revoked Plaintiff’s medical license in retaliation for him
filing Civil Action No. 60CV-14-808.”
15
action in federal court. See Complaint, ¶s 2 & 88. Pet.
App. 108a, 148a - 149a.
The reinstatement of Plaintiff’s Arkansas
medical license occurred as a result of action taken by
all of the members of the Medical Board on June 15,
2015. See Doc. 37, Exhibit 8, p. 5, where it is provided
that on June 4, 2015, the “Board further agreed to
rescind and void the 2014 revocation of Dr. Williams’
Arkansas medical license and return his licensure
status to that prior to the hearing due to a lack of notice
of hearing to Dr. Williams from his former attorney.
Additionally, the Board agreed to retain control of the
four cases involved in this matter and that a re-hearing
would not be held until Dr. Williams’ lawsuit against
Baptist Hospital is concluded.”
However, in addition to the Medical Board’s
continuing reporting of the April, 2014 revocation of
Williams Arkansas medical license,13 the Medical Board
refused to void the National Practitioner Data Bank14
13
On April 30, 2014, the Board submitted a report to the National
Practitioner Data Bank stating that the Board had revoked
Plaintiffs medical license because Plaintiff had "violated the
Medical Practices Act, in that he exhibited gross negligence and
ignorant malpractice in the manner in which he performed
diagnostic workup and surgical procedures.” Complaint, ¶ 84. Pet.
App. 147a.
14
“Ostensibly, practitioners with one or more adverse reports in
the Databank may find it difficult to build or maintain their
practices, as healthcare entities, including hospitals and health
insurance companies, are likely reluctant to associate with
practitioners who have been deemed incompetent through peer
review.” Walker v. Mem’l Health Sys., 231 F. Supp. 3d 210, 213-214
(E.D. Tex. 2017). See also Complaint, ¶s 97-102 (Pet. App. 152a -
16
(“NPDB”) report as requested by the Secretary of the
United States Department of Health and Human
Services (“HHS”) causing HHS to void the report itself.
Complaint, ¶s 90-91.
Pet. App. 149a - 150a.
Immediately after HHS unilaterally voided the
unauthorized NPDB report resulting from the hearing
that was held in Williams’s absence, the Medical Board
submitted another report to NPDB indicating that
there was a “restriction”15 on Williams’s Arkansas
medical license in addition to continuing to report the
April, 2014 revocation to the public generally on the
Medical Board’s website. See Doc. 126, p. 20, and Julie
Carlson Depo., pp. 30-35.
Information directly related to the Medical
Board’s 2014 revocation of Plaintiff’s Arkansas medical
license, to include Counce and Mabry’s reports and the
Order revoking Plaintiff’s Arkansas medical license
153a) for examples of the harm that Plaintiff has suffered as a
result of the reports related to the improper revocation of his
medical license. At fn 1 of its Order granting summary judgment to
Beck and Hearnsberger, “[t]he district court declines to analyze
Plaintiff’s claims for injunctive relief because the Doctors are no
longer members of ASMB and have no authority to correct reports
sent to the NPDB or keep accurate minutes of ASMB
investigations.”) Pet. App. 10a.
15
However, on February 2, 2017, just days before the trial in state
court was to be begin, and where Board agents, employees, and/or
representatives had been subpoenaed to testify, “the Board voted
unanimously to amend Dr. Williams’ Consent Order of October 19,
2015 to add a statement that the action was not considered a
restriction of his Arkansas medical license.” Doc. 126, Exhibit 8, p.
5. Yet, despite this express acknowledgment by the Medical Board
that there is/was no restriction on Plaintiff’s medical license, the
reports have continued to indicate otherwise.
17
which was executed by defendant Beck on April 10,
2014, was provided by employees of the Arkansas State
Medical Board to a local news reporter in May 2015 so
that it could be published in the local news and seen by
members of the general public. Doc. 126, Exhibits 29 &
32. Plaintiff was never given the opportunity to cross
examined Counce and Mabry’s reports before they
were released to the public.
When Counce and Mabry moved for summary
judgment in the trial court in this case, Plaintiff
objected to their “narrative reports” that were
provided to the Medical Board because that was the
first opportunity for him to do so as Counce and Mabry
were not parties to the state court action and their
reports were not offered or placed into evidence in
support of any of the summary judgment motions that
were granted by the state trial court in Williams I.
Plaintiff’s objections to the Counce and Mabry reports
were based on primarily two things. First, the reports
failed to comply with the evidentiary requirements of
Rule 702 of the Federal Rules of Evidence and Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993) “to the extent [they purport] to establish as an
evidentiary fact, that Plaintiff committed “gross
negligence” and/or “ignorant malpractice.” see Doc.
Doc. 67, pp. 5-13, and Doc. 69, pp. 8-16.
Second, and more importantly, Counce and
Mabry’s conclusory narrative reports fail to meet the
statutory requirements of Arkansas law regarding
allegations of medical negligence (A.C.A. § 16-114206(a)) generally, as interpreted by the Arkansas courts
in Dodd v. Sparks Regional Medical Center, 204 S.W.3d
579 (2005), Neal v. Sparks Reg’l Med. Ctr., 422 S.W.3d
18
116, Fryar v. Touchstone Physical Therapy, Inc., 229
S.W.3d 13 (Ark. 2006), and Ford v. St. Paul Fire &
Marine Ins. Co., 339 Ark. 434, 437, 5 S.W.3d 460, 462
(1999). See Eighth Circuit Appellant’s Brief, p. 33. Pet.
App. 84a - 85a.
Disposition of Questions Presented Below
A. The April 3, 2014 revocation of Plaintiff’s
Arkansas medical license by the Arkansas
State Board of Medical Examiners
(“Medical Board”) gave rise to a “new”
separate and independent16 federal cause
of action
When he filed his Complaint Plaintiff cited The
Baker Group v. Burlington Northern and Santa Fe
Railway Co., 228 F. 3d 883 (8th Cir. 2000) and
Lundquist v. Rice Memorial Hospital, 238 F.3d 975
(8th Cir. 2000) and indicated that his claims were
limited to those arising after he filed his state court
action in February, 2014. Complaint, ¶ 2. Pet. App. 108.
Therefore, before even deciding whether or not he
would appeal the state court action, Plaintiff made it
clear in his Complaint that because the April, 2014
revocation of Plaintiff’s Arkansas medical license
occurred after he filed his civil action in state court on
February 25, 2014, Plaintiff had a right to pursue any
16
See Bd. of Regents v. Tomanio, 446 U.S. 478, 491, 100 S. Ct. 1790,
1799, 64 L. Ed. 2d 440, 452 (1980), (“there is no question that
respondent’s § 1983 action was ‘separate and independent’ from
the state judicial remedy pursued in state court. ... The federal
remedy is supplementary to the state remedy, and the latter need
not be first sought and refused before the federal one is invoked.”)
19
federal constitutional and statutory claims arising
therefrom in federal court in the first instance, along
with any pendent state law claims pursuant to 28
U.S.C. § 1367.
In Woman’s Health v. Hellerstedt, 136 S. Ct.
2292, 2305, 195 L. Ed. 2d 665, 681 (2016), this Court
pointed out that, “[f]actual developments may show
that constitutional harm, which seemed too remote or
speculative to afford relief at the time of an earlier suit,
was in fact indisputable. In our view, such changed
circumstances will give rise to a new constitutional
claim. This approach is sensible, and it is consistent
with our precedent.” In reaching this conclusion, this
Court used the following hypothetical:
“Imagine a group of prisoners who claim that
they are being forced to drink contaminated water.
These prisoners file suit against the facility where they
are incarcerated. If at first their suit is dismissed
because a court does not believe that the harm would
be severe enough be unconstitutional, it would make no
sense to prevent the same prisoners from bringing a
later suit if time and experience eventually showed that
prisoners were dying from contaminated water. Such
circumstances would give rise to a new clam that the
prisoners’ treatment violates the Constitution.” Id.
Similarly here, notwithstanding the fact that
Plaintiff had unsuccessfully sought to enjoin the
Medical Board from engaging in the conduct that
ultimately caused his injuries, when responding to the
Baptist Health defendants’ motion to dismiss, Plaintiff
argued that, “damages sought in his federal action
accrued when his medical license was revoked without
20
him being present in April, 2014, and that the other
facts contained in the Complaint are provided in
support of the claims arising as a result of the damages
caused by the revocation of his medical license.” Doc.
37, p. 2.
For example, Plaintiff’s due process claim alleges
a deprivation of liberty due to the adverse reports
following the April, 2014 revocation of his medical
license. A similar claim was at issue in Ulrich v. City &
County of San Francisco, 308 F.3d 968, 982-983 (9th
Cir. 2002), where the Ninth Circuit Court of Appeals
addressed the “stigma plus” test articulated by this
Court in Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405,
96 S. Ct. 1155 (1976) as applied to a deprivation of
liberty claim based on governmental defamation in the
context of reports about a physician being submitted to
the National Practitioner Data Bank in violation of the
Fourteenth Amendment.
Plaintiff’s Complaint alleged that the opinions of
Counce and Mabry were first obtained in November,
2010,17 prior to Paintiff being able to complete the
appellate process at Baptist Health, as authorized by
the Baptist Health medical staff bylaws, in order to be
used, if necessary, to revoke Plaintiff’s Arkansas
medical license if he continued to pursue and/or did not
abandon his claims of racial discrimination against
17
During the hospital disciplinary proceedings, there had been no
allegations made that Plaintiff had committed "gross negligence"
and/or "ignorant malpractice," which would be a finding necessary
before the Board would be lawfully authorized to take any
disciplinary action against Plaintiff under the Arkansas Medical
Practices Act. Complaint, ¶ 52. Pet. App. 133a - 134a.
21
Baptist Health Medical Center, its agents, employees
and/or representatives. Complaint, ¶s 49-53. Pet. App.
131a - 134a.
It is undisputed that prior to the April, 2014
revocation of Plaintiff’s Arkansas medical license, the
Medical Board had not expressly restricted Plaintiff’s
ability to practice medicine and had not submitted any
adverse and/or negative reports to the National
Practitioner Data Bank or anyone else to Plaintiff’s
knowledge regarding the medical treatment at issue.
On June 16, 2011, the Medical Board wrote Plaintiff and
informed him that among other things, “you will refrain
from performing colon procedures unless assisted by
another surgeon pending resolution of your court case.”
Complaint, ¶ 56. Pet. App. 135a -136a. On the very
next day, June 17, 2011, the Medical Board sent the
narrative reports prepared by Counce and Mabry to
Baptist Health for its use in Civil Action No. 60CV-111990, and in the transmittal letter, the Board's
representative stated that, "Dr. Counts [Counce] and
Dr. Mabry do not have to testify or follow-up for
further testimony or work concerning these reviews
unless they desire to." Complaint, at ¶57. Pet. App.
136a - 137a. These facts support an inference that by
reporting Plaintiff to the Arkansas Medical Board prior
to him exhausting his appellate remedies at Baptist,
and by seeking these reports from the Medical Board
after Plaintiff filed his civil action in state court, the
Baptist Defendants’ intent all along was to invoke the
aid of the Medical Board to help it defend against
See Lugar v.
Plaintiff’s discrimination claims.18
18
As stated above, on May 25, 2010, McKissic notified Baptist in his
notice of appeal that Plaintiff believed that the actions taken
22
Edmondson Oil Co., 457 U.S. 922, 942, 102 S. Ct. 2744,
2756, 73 L. Ed. 482, 498 (1982), (“The Court of Appeal s
erred in holding that in this context ‘joint participation’
required something more than invoking the aid of state
officials to take advantage of state-created attachment
procedures.”)
When filing their motion to dismiss in the federal
action on July 26, 2017, the Baptist Defendants argued
that they “had no involvement” in the decision to
revoke Plaintiff’s Arkansas medical license, and that,
“because the factual matters raised by the instant
Complaint have previously been litigated and the new
legal claims could have been brought at that time, the
Complaint should be dismissed as to the Baptist Health
Defendants as precluded by the doctrine of res
judicata.” Doc. 31, p. 3.
On August 9, 2017, in his response to the Baptist
defendants’ motion to dismiss, Plaintiff argued that his
federal cause of action did not accrue until his medical
license was revoked in April, 2014,19 and that the other
facts alleged in the Complaint were merely provided in
against him were "racially biased and discriminatory." Complaint, ¶
46. Pet. App. 130a. The Medical Board’s policy and customary
practice had always been to await the outcome of any appeals
and/or litigation related to medical treatment provided by a
physician prior to any formal action being taken by the Board.
Complaint, ¶s 48-49. Pet. App. 130a -132a.
19
Responding to the Baptist defendants’ statute of limitation
argument, Plaintiff cited to the Eighth Circuit case of Buford v.
Tremayne, 747 F.2d 445, 448 (8th Cir. 1984), (“In a conspiracy
action, the statute of limitation begins to run from the occurrence
of the last overt act resulting in damage to the plaintiff.”)
23
support of those claims. Doc. 37, p. 2. Plaintiff further
argued that pursuant to 28 U.S.C. § 1367, the federal
court had supplemental jurisdiction over his state law
claims arising out of the same facts, acts, omissions,
and/or transactions at issue regarding the federal due
process and retaliation claims20 being asserted against
the defendants in his federal claims arising from the
revocation of his Arkansas medical license in April,
2014, to include those against the employees, agents
and/or representatives of the Arkansas State Medical
Board being sued in their personal capacities who were
not parties to the civil action filed in state court. Doc.
37, pp. 2-3.
In granting the Baptist defendants motion to
dismiss on September 19, 2017, the district court held
that, “Plaintiff sought to have the April 2014 hearing
regarding the revocation of his medical license
enjoined. The state court denied Plaintiff’s relief.
Plaintiff cannot claim that the revocation of his license
on April 2014 created a “new” claim that has not been
litigated. The specific issue was before the court in
Williams I.” Doc. 47, p. 5. Pet. App. 19a. Plaintiff
appealed the district court’s holding granting the
20
To support his federal retaliation claim, in addition to arguing
that it arose subsequent to the filing of his original Complaint,
citing Johnson v. County of Nassau, 480 F. Supp. 2d 581, 607-608
(E.D.N.Y. 2007), Plaintiff argued that he did not have a fair
opportunity to litigate his federal claims in state court due to
restrictions on discovery and that res judicata could not preclude a
retaliation claim arising from the filing of a racial discrimination
complaint itself. Doc. 37, p. 3. These arguments and Johnson’s
application to Plaintiff’s case were rejected by the district court.
Doc. 47, pp. 3-5. Pet. App. 16a -18a.
24
Baptist Health Defendants’ motion to dismiss on the
doctrine of res judicata. See Appellant’s Eighth Circuit
Brief, pp. 20-31. Pet. App. 73a - 83a.
In its March 8, 2018 Order Granting Counce and
Mabry’s Motions for Summary Judgment, the district
court held that, “[r]es judicata bars Plaintiff’s claims
against Drs. Counce and Mabry because they could
have been litigated in Williams I.” Doc. 98, p. 2. Pet.
App. Plaintiff appealed the district court’s holding
granting Counce and Mabry’s motion for summary
judgment on the doctrine of res judicata. See
Appellant’s Eighth Circuit Brief, pp. 31-33. Pet. App.
83a - 85a.
In its May 31, 2018 Order granting Beck and
Hearnsberger’s motion for summary judgment, the
district court held that,
As stated in the Court’s previous orders, claims
arising from the facts included in Williams I are
barred by res judicata. Plaintiff’s claims
regarding the information sent to the NPDB by
ASMB was considered in Williams I when
Plaintiff filed his motion to enforce settlement on
August 9, 2015. (Exh. 35 to Pl’s Resp. to Mot.
For Summ. J.). The court ruled that the Board’s
version of the Consent Order properly
memorialized the settlement agreement21
21
Plaintiff submits that the district court’s ruling construing the
parties’ settlement “agreement” was not an adjudication on the
merits that the Board was authorized to report that Plaintiff had
committed “gross negligence” and/or “ignorant malpractice.”
Indeed, the Consent Order that was executed by the parties did
not include any language regarding NPDB reports, and therefore,
25
between the parties. The Board’s version of the
Consent Order, which was filed in the case on
November 5, 2015, did not include the Plaintiff’s
proposed language regarding reports made to
the NPDB by the ASMB. Dr. Hearnsberger, in
his official capacity, and the AMSB, of which Dr.
Beck was the chairman, were named defendants
in Williams I and were dismissed with prejudice
on November 5, 2015.
Doc. 146, p. 4. Pet. App. 10a - 11a.
Plaintiff appealed the district court’s holding
granting Beck and Hearnsberger’s motion for summary
judgment. See Appellant’s Eighth Circuit Brief, pp. 4539. Pet. App. 85a - 96a.
B.
The defendants are entitled to
qualified immunity instead of absolute
immunity with respect to Plaintiff’s
federal claims arising from the
revocation of his Arkansas medical
license.
Regarding the defendants’ motions for summary
judgment arguing that they were entitled to immunity
from Plaintiff’s federal and state law pursuant to
Arkansas statutory law, Plaintiff cited the Arkansas
that issue was not decided and was not material to the action taken
by the trial court. See Eighth Circuit Appellant’s Brief, pp. 45-46.
Pet. App. 94a - 95a. See also Costello v. United States, 365 U.S.
265, 286, 81 S. Ct. 534, (“the point of controversy must be the same
in both cases, and must be determined on its merits.”) (Citations
Omitted.)
26
Supreme Court’s decision in Arkansas State Medical
Board v. Cryer, 521 S.W.3d 459, 465 (Ark. 2017),
“[i]mmunity under state law is not dispositive of a
federal civil-rights claim against state actors in their
individual capacities, even if the claim is brought in
state court.” Doc. 126, p. 27.
Regarding Counce and Mabry, Plaintiff also
cited Holland v. Muscatine General Hospital, 971 F.
Supp. 385, 390 (S.D. Iowa 1997) for the proposition that
“the statutory immunity of persons participating in
professional review actions specifically does not include
‘damages under any law of the United States or any
State relating to the civil rights of an person or persons,
including the Civil Rights Act of 1964, 42 U.S.C.§ 2000e
et seq.” Doc. 67, pp. 13-14. To further support his
argument that Counce and Mabry would be entitlement
to only qualified immunity, if any, Plaintiff also cited
Braswell v. Haywood Reg’l Med. Ctr., 352 F.Supp. 2d
639, 650 (W.D. N.C. 2005), “Congress, in passing the
Health Care Quality Improvement Act of 1986
[“HCQIA”], 42 U.S.C. §§ 11101, et seq, has recognized
the strong policy reasons for granting qualified
immunity from money damages to hospitals, doctors,
and others who participate in the professional peer
review process. The act provides qualified immunity
where the peer review activities have met the specific
standards imposed by the Act. See 42 U.S.C. §11111
(a)(1) (granting immunity where specified standards of
42 U.S.C. §11112 (a) have been met). However,
Congress specifically provided that qualified immunity
did not extend to actions for damages for violations of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et.
seq., and the Civil Rights Act, 42 U.S.C. §§ 1981, et
seq.” See Doc. 67, p. 14.
27
In his Eighth Circuit Brief, at p. 35, citing Hafer
v. Melo, 502 U.S. 21, 31 (1991), Plaintiff argued that,
“Beck and Hearnsberger are not “absolutely immune
from personal liability under § 1983 solely by virtue of
the ‘official’ nature of their acts,” and that instead, “the
focus should be on the state official’s specific acts or
omissions that caused and/or contributed to the injury
suffered by Plaintiff.” Pet. App. 85a -86a. Plaintiff also
repeated the portion of this Court’s holding that, “no
more than a qualified immunity attaches to
administrative [ ] decisions, even if the same official has
absolute immunity when performing other functions.”
Id.
In responding to the defendants’ motions for
summary judgment in the trial court, among other
things, Plaintiff argued that the Medical Board
defendants’ acts and/or omissions should have been
evaluated under the doctrine of qualified immunity, not
absolute immunity for their acts and/or omissions that
were not adjudicatory in nature, including, but not
limited to: (1) their investigative actions;22 (2) the
giving of instructions and legal advice23 to Counce and
22
For example, see Appellant’s Brief, Pet. App. 86a - 87a, where
Plaintiff argued that, the investigatory actions undertaken by
defendant Hearnsberger were unauthorized and in violation of
A.C.A. § 17-95-301(h)(2), which provides that, “[n]o member of the
Board may be involved in the conduct of the investigation except
to cooperate with the investigation as required by the
investigator.”
23
See Counce Depo., pp. 39-40, wherein he explains that at the time
he received the memo from the Medical Board he did not know
what “gross negligence” and “ignorant malpractice” meant. Doc.
141, p. 11. See Burns v. Reed, 500 U.S. 478, 495, 114 L. Ed. 2d 547,
111 S. Ct. 1934 (1991), “it is incongruous to allow prosecutors to be
absolutely immune from liability for giving advice to the police, but
28
Mabry regarding the inclusion of the words, “gross
negligence” and “ignorant malpractice” in their reports;
and (3) the continued reporting of the 2014 license
revocation, even after the Medical Board voted on June
to void and rescind it. Doc. 37, Exhibit 8, p. 5
Plaintiff also cited DiBlasio v. Novello, 344 F.3d
292 (2nd Cir. 2003), and argued that the Medical Board
defendants were not entitled to absolute immunity with
respect to acts and/or omissions that were not
adjudicative in nature. Doc. 67, pp. 14-15. Doc. 46-1, p.
8. In violation of the statutory Medical Board policy
referenced in footnote 23 above, Hearnsberger, who
was one of two24 surgeons on the Medical Board, made
exparte contact with Dr. Gilbert, the physician who
served as Plaintiff’s proctor and Dr. Eidt, one of
Plaintiff’s former professors and reported negative,
false,25 hearsay information to the other Medical Board
members about his conversation with these physicians.
Doc. 37, pp. 1-2, Exhibit 14, Doc. 89-2, pp. 22-23. In
addition, Plaintiff also argued that the Medical Board
defendants intentionally withheld favorable reports
from the Medical Board members during the April,
2014 hearing that was held in his absence. Doc. 126, pp.
9-10.
to allow police officers only qualified immunity for following the
advice...”
24
Defendant Counce’s partner, Weiss was the other surgeon on the
Medical Board. Doc. 37, p. 15.
25
Hearnsberger reported that Gilbert did not want to proctor
Plaintiff anymore and sent an email to the other physicians stated
that Eidt had told him that Plaintiff was “hard headed” and a poor
resident. Complaint ¶ 64 FN 15. Pet. App. 139a - 140a. Doc. 46-1,
pp. 7 - 9.
29
Plaintiff raised the immunity issue with respect
to Counce and Mabry in his appeal to the Eight Circuit
in Appellant’s Brief, p. 34. App. Plaintiff addressed the
immunity defenses raised by Hearnsberger and Beck in
his appeal to the Eighth Circuit in Appellant’s Brief, pp.
35-49. App. In support of his Petition for Writ of
Certiorari, Plaintiff also relies upon this Court’s holding
in Buckley v. Fitzsimmons, 509 U.S. 259, 113 S. Ct.
2602, 125 L. Ed. 2d 209 (1993) with respect to reports
that have been made and continue to be made to the
public regarding the revocation of Plaintiff’s Arkansas
medical license as a result of a hearing that was held in
Plaintiff’s absence and without the prior notice and
opportunity to be heard as required by Arkansas law.
REASONS FOR GRANTING THE PETITION
The writ for certiorari should be granted
because the Eighth Circuit Court of Appeals’ opinion
affirming the district court’s holding that Plaintiff’s
federal claims are barred by the doctrine of res judicata
conflicts with this Court’s holding in Woman’s Health v.
Hellerstedt, 136 S. Ct. 2292, 2305, 195 L. Ed. 2d 665, 680
(2016), and the cases cited therein from the Second,
Third, Sixth, Seventh, and Eleventh Circuits, which
hold that, “res judicata does not bar claims that are
predicated on events that postdate the filing of the
initial complaint.” The April, 2014 hearing that was
held without notice to Plaintiff and the subsequent
revocation of his Arkansas medical license as a result of
the hearing post dated the February, 2014 filing of
Plaintiff’s state court cause of action.
As stated above, on June 4, 2015 the Medical
Board “agreed to rescind and void the 2014 revocation
30
of Dr. Williams’ Arkansas medical license and return
his licensure status to that prior to the hearing due to a
lack of notice of hearing to Dr. Williams from his former
attorney. Additionally, the Board agreed to retain
control of the four cases involved in this matter and
that a re-hearing would not be held until Dr. Williams’
lawsuit against Baptist Hospital is concluded.” Doc.
37, Exhibit 8, p. 5.
To date, due to the pending appeal of Plaintiff’s
lawsuit in the Arkansas state courts, a re-hearing has
not occurred.
Yet, immediately after Plaintiff’s
Arkansas medical license was revoked the Medical
Board has reported the 2014 revocation despite the
November, 2015 reinstatement of Plaintiff’s Arkansas
medical license. Because he was denied the opportunity
to refute these allegations in a meaningful way prior to
the revocation of his medical license and prior to the
publication of the negative adverse reports, related
thereto, Plaintiff filed this action in federal court
against alleging that the defendants’ actions deprived
him of his property interests in his his medical license
and liberty interest in his professional reputation
without due process. Winegar v. Des Moines Indep.
Community Sch. Dist., 20 F.3d 895 (8th Cir. 1994). His
federal claims further assert that these actions were
also taken in retaliation for his complaint of racial
discrimination that was filed in Arkansas state court
against the Baptist Health defendants. Greenwood v.
Ross, 778 F.2d 448 (8th Cir. 1985). These claims are
separate and independent from the cause of action that
Plaintiff filed in Arkansas state court.
In McDonough v. Smith, 139 S. Ct. 2149, 204
L.ed. 2d 506 (June 20, 2019), this Court recently
31
clarified the accrual of federal causes of action related
to ongoing conduct. This case was decided after
Plaintiff’s motion for rehearing was submitted on June
12, 2019 and was not cited or considered by the lower
courts. In McDonough, this Court held that, “an
accrual analysis begins with identifying ‘the specific
constitutional right’ alleged to have been infringed.”
Id., at 2155, 513. “Although courts look to state law for
the length of the limitations period, the time at which a
§ 1983 claim accrues ‘is a question of federal law,’
conforming in general to common-law tort principles.’
That time is presumptively ‘when the plaintiff has ‘a
complete and present cause of action,’ though the
answer is not always so simple. Where, for example, a
particular claim may not realistically be brought while a
violation is ongoing, such a claim may accrue at a later
date.” Id. (Citations Omitted.)
The lower courts’ orders holding that Plaintiff’s
cause of action is barred by the doctrine of res judicata
not only prevent him from being able to assert federal
constitutional rights that accrued when his medical
license was revoked in April, 2014, but they also conflict
with the relief that may be available to Plaintiff in the
future in accordance with McDonough v. Smith, 139 S.
Ct. 2149, 204 L.ed. 2d 506 (June 20, 2019) if and when he
prevails at a re-hearing on the medical treatment at
issue, should the Medical Board elect to subject him to
such a hearing.
CONCLUSION
In light of the foregoing, Petitioner requests that
his petition for certiorari be granted. In addition to
being in conflict with the circuit court opinions cited in
32
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2305,
195 L. Ed. 2d 665, 680 (2016), the Eighth Circuit Court
of Appeals’ opinion, if left standing, deprives Petitioner
of his right to pursue his federal claims in federal court
in the first instance even though he brought his federal
claims in federal court within the applicable statute of
limitations period, and even though Joseph M. Beck,
Charles Mabry, James Counce, and The Surgical Clinic
of Central Arkansas, all the parties to the federal
action, were not parties in the state court action.
Further, Petitioner expressly informed the state court
that he reserved the right to bring federal claims
related to the improper revocation in federal court, and
the federal claims were never raised or addressed by
the state court.
Respectfully Submitted,
Eric E. Wyatt
Counsel of Record
GEORGE W. MCGRIFF & ASSOCIATES
600 Colonial Park Drive Roswell, Georgia 30075-3746
(770) 649-7160
Email: ericewyatt@icloud.com
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.