Opposition Brief — Mahmoodian v. United Hospital Center, Inc.

Supreme Court brief1991

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No. 91-138

IN THE

SUPREME COURT OF THE UNITED STATES

October, 1991, Term

SAEED MAHMOODIAN, M.D., Petitioner,

vs.

UNITED HOSPITAL CENTER, INC. AND

BRUCE C. CARTER, Respondents.

PETITION FOR WRIT OF CERTIORARI

To The Supreme Court of Appeals

of West Virginia

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Herbert G. Underwood, Esq.*

Irene M. Keeley, Esq.

Matthew J. Mullaney, Esq.

STEPTOE & JOHNSON

P. O. Box 2190

Clarksburg, West Virginia 26302

(304) 624-8000

COUNSEL FOR RESPONDENTS

*Counsel of record

TABLE OF CONTENTS

Page

memes GE BERGE IECIOS. «6 « st te ew ot tl lw hh

Citations to Opinions Below ...... vi

Statement of the Case ......... 1

Why a Writ Should Not Be Granted. ... 7

Pes « « «© « &@ «© @ » » @ 6 «© » « ow

Ens « «+ es «is 4 os « & « « 2

Appendix:

C. Order of the Circuit Court Denying

Motion For a Preliminary Injunction

DBD. Chronology and Description of Events

Before UHC and Its Medical Staff

E. Report and Recommendation of the

Hearing Committee of the Medical Staff

F. Health Care Quality Improvement Act,

Standards for Professional Review

Actions

TABLE OF AUTHORITIES 7 |

Federal Cases

Flagg Brothers, Inc. v. Brooks, 436 U.S.

149, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) |

——

F.Supp. 789 (D. Puerto Rico 1986)

_Lubin v. Crittenden Hospital Association,

713 F.2d 414 (8th Cir. 1983)

Mendez _v. Belton, 739 F.2d 15 (ist Circ.

1984)

Modaber_v. Culpepper Memorial Hospital,

inc., 674 F.2d 1023 (4th Cir. 1982)

Pp Vv. t, 486 U.S. 94, 108 S.Ct.

1658, 100 L.Ed.2d 83 (1988)

Robbins v. Ong., 452 F.Supp. 110 (S.D.Ga.

1978)

v. Washi ita » Bae

F.Supp. 59 (D.D.C. 1963)

State Cases

Adkins v. Sarah Bush Lincoln Center,

544 S.E.2d 733 (Ill. 1989)

Alsabti vv. Board of Registration of

Vv. son, 419 U.S.

345, 95 S.Ct. 449,42 L.Ed.2d 477 (1974)

Lipsett v. University of Puerto Rico, 637

Medicine, 536 N.E.2d 357 (Mass. 1989)

Anton v. San Antonio Community Hosp., 567

P.2d 1162 (Cal. 1977)

v Memorial Hospital,

525 N.E.2d 50 (Ill. 1988)

Vv. edical Society,

393 P.2d 926 (Ariz. 1964)

Vv. Vincent irmary, 701 S.W.2d

103 (Ark. 1985)

Vv Vv ospital,

281 A.2d 589 (N.H. 1971)

Courtney _v. Shore Memorial Hospital, 584

A.2d 817 (N.J. Super. 1990)

eV. W Vj ini d

Medicine, 352 S.E.2d 66 (W.Va. 1986)

Davidson v. Youngstown Hospital Assn., 250

N.E.2d 892 (Ohio App. 1969)

Vv Vv. °

P.2d 1100 (Colo. 1981)

Fri Vv. spi fe) end

Inc., 523 N.E.2d 252 (Ind. App. 1988)

Greisman v. Newcomb Hospital, 192 A.2d 817

(N.J. 1963)

Hawkins v. Kinsie, 540 P.2d 345

(Colo. App. 1975)

Hottentot v. Mid-Maine Medical Center,

549 A.2d 365 (Me. 1988)

Hu k v. Baily, 540 P.2d 1398

(Or. 1975)

iii

Vv. a , 692 P.2a

1350 (N.M. App. 1984)

Inc., 46 A.2d 298 (Md. 1946)

Vv. spital,

646 P.2d 857 (Alaska 1982)

S.E.2d 728 (Va. 1988)

Vv. j ic spi of

Monterey Park, Inc., 124 Cal. App.3d 81,

177 Cal. Rptr. 119 (1981)

- ; .

526 A.2d 697 (N.J. 1987)

Vv. i j » Sii

N.E.2d 467 (Ind. App. 1985)

Pins) - Pacifi . — :

Orthodontists, 12 Cal.3d 541, 116 Cal.Rptr.

245, 526 P.2d 253 (1974)

Sarin v. Samaritan Health Center, 440

N.W.2d 80 (Mich. App. 1989)

Silver _v. Castle Memorial Hospital, 497

P.2d 564 (Haw. 1972) _

fe) Vv. era ospitals and Homes

-, 609 P.2d 24

(Alaska 1980)

Sywak v. O’Conner Hospital, 199 Cal. App.3d

423, 244 Cal. Rptr. 753 (1988)

Velduis ,v. Central Michigan Community

Hospitals, 369 N.W.2d 478 (Mich. 1985)

PRAY - Ue RRR

Park Communit ospital, 565

So.2d 550 (Miss. 1990)

Woodwa v_ Porter Hospital nc., 217 A.2da

37 (Vt. 1966)

Yarnell v. Sisters of St Francis Health

Sisters, 446 N.E.2d 359 (Ind. 1983)

Statutes

Federal Health Care Quality Improvement Act

of 1986, 82 U.S.C. §§ 11101-11152

Articles

Hirsh, The "Disruptive” or “Bad” Physician

in the Hospital, 35 Medical Trial Technique

Quarterly 304, Calaghan & Co. 1989

Springer and Casale, Hospitals and the

Disruptive Health Care Practitioner - Is

the Inability to Work with Others Enough to

Warrant Exclusion?, 24 Duquesne Law Review

377 (1985)

CITATIONS TO OPINIONS BELOW

The opinion of the West Virginia

Supreme Court of Appeals is reported at 404

S.E.2d 750. A copy of the opinion also

appears in the appendix ("A") to the

petition for writ of certiorari.

The opinions of the Circuit Court of

Harrison County, West Virginia, are not

published. A copy of the final order of

the circuit court, entered November 30,

1989, appears in the appendix (”B”) to the

petition for writ of certiorari. A copy of

the initial decision of the circuit court,

denying petitioner’s motion for a

preliminary injunction, entered February 1,

1989, is included in the appendix to this

brief in opposition to petition for writ of

certiorari.

STATEMENT OF THE CASE

By decision dated April 25, 1991, the

West Virginia Supreme Court of Appeals (the

“state court”) sustained the action of

United Hospital Center, Inc. ("UHC” or “the

hospital”), taken upon the recommendation

of its medical staff, to revoke the

hospital privileges of Saeed Mahmoodian,

M.D. (*Mahmoodian’”). The state court’s

opinion appears in the appendix to the

petition for writ of certiorari. The

hospital’s action was initially reviewed by

the Circuit Court of Harrison County ‘the

“trial court”) during an evidentiary

hearing on Mahmoodian’s motion for a

preliminary injunction. The trial court

denied the motion, finding inter alia, that

there was no likelihood of success on the

merits. The trial court did grant limited

and temporary relief to Mahmoodian for the

benefit of patients then under his care.

The trial court’s findings, conclusions,

and order entered on February 1, 1989 are

included in the appendix ("C”) to this

brief in opposition.

Thereafter, the state court granted

without comment Mahmoodian’s ex parte

motion for a preliminary injunction. At a

later date, the trial court sought without

success to certify five legal questions for

decision, but the state court refused to

docket the certified questions, again

without comment. On November 30, 1989,

without taking any further evidence in the

case, and in order to put the case in a

posture for a final appeal on the merits,

the trial court granted a permanent

injunction against the hospital and in

favor of Mahmoodian, acting in deference to

the unexplained interlocutory actions of

the state court. The hospital appealed to

the state court which thereafter set aside

“—

}

the trial court’s permanent injunction and,

in effect, affirmed the trial court’s

initial decision to deny Mahmoodian’s

motion for a preliminary injunction.

Mahmoodian’s statement of the case

miscasts the facts. He would have this

Court believe he is the only physician in

the Clarksburg area that treats indigent

pregnant women. He would have this Court

believe that Mahmoodian’s peers found no

fault whatsoever with his clinical/surgical

abilities. He would have this Court

believe he has been the model physician-

colleague since the medical staff began its

current investigation of “ee professional

conduct. Finally, Mahmoodian would have

this Court believe the motive of the

medical staff and the hospital was to

silence Mahmoodian’s attacks upon

substandard medical practices. None of

these assertions are true. Mahmoodian has

sought to put this same “spin” on his case

before his peers, before the board of

directors of the hospital, before the

Circuit Court of Harrison County during an

evidentiary hearing, and before the West

Virginia Supreme Court of Appeals, each

time without success.

The facts are that Mahmoodian was not

the sole source of medical services to

indigent women in Harrison County needing

obstetrical or gynecological services, and

Mahmoodian’s services to women at the

health department’s clinic were not

altruistic. He received many of his

patients through clinic referrals. The

medical staff recommended that Mahmoodian’s

clinical privilege to perform the Wertheim

procedure (a “radical” hysterectomy with

removal of the pelvic lymph node chain) be

withdrawn due to inexperience and

incompetence even if his medical staff

privileges would not be revoked.

Mahmoodian did not challenge that

recommendation in the later stages of this

case. Relations between Mahmoodian and the

physicians and nurses of the obstetrical

unit of the hospital did not materially

change after the medical staff initiated

corrective action against Mahmoodian.

There were continuing revelations of

Mahmoodian’s disruptive conduct before the

trial court and the state court. Finally,

the hospital has denied throughout and

denies here any improper motive toward

Mahmoodian and relies upon the fact that

his assertions of improper motive have been

rejected at each stage of this proceeding.

The four other physicians privileged

to practice obstetrics and gynecology at

UHC did not participate at any stage of the

peer review process in the recommendation

of the medical staff to the hospital board

2 pe ey,

to revoke Mahmoodian’s privileges. A list

of the proceedings before the hospital and

its medical staff is included in the

appendix (”D”) to this brief in opposition.

Good cause for an investigation and then a

hearing concerning Mahmoodian’s

professional conduct, and the reasons for

revoking his medical staff privileges and

withdrawing his clinical privilege to

perform the Wertheim procedure, are set out

in the report and recommendation of the ad

hoc hearing committee of the medical staff,

included in the appendix (”E”) to this

brief in opposition.

WHY A WRIT SHOULD NOT BE GRANTED

Each of the issues raised by the

petitioner was fully briefed, discussed,

and decided by the West Virginia Supreme

Court of Appeals. This case is not of a

special or important character. fThere is

no conflict among the federal or state

courts on the federal due process question

raised by the petitioner; federal and state

courts uniformly hold that a private

hospital is not a state actor when it

grants, denies or revokes medical staff

privileges, and is not subject to the due

process clause of the Fourteenth Amendment.

Any conflict among the states concerns only

the applicability of and compliance with a

hospital’s medical staff bylaws and the

scope of judicial review of the hospital’s

decision, and arises from disparate

interpretations of each state’s common law,

contract law, or public policy.

2. To the degree that public policy

would be advanced by uniform peer review

procedures for public and private hospitals

alike, that public policy is being advanced

by the United States Congress, and there is

no need for this Court to act. Moreover,

this would not be a proper case for the

Court to act upon. The state court here

did not rely upon the public hospital-

private hospital dichotomy to guide its

judicial review of the decision of the

hospital and its medical staff to revoke

the petitioner’s medical staff privileges.

3 The remaining issues raised by

the petitioner, to wit: the extent of

cross-examination provided and the adequacy

of the standard of proscribed conduct under

the medical staff bylaws, were carefully

considered by the state court. These

present no legal issue of general

applicability and do not’ merit the

attention of this Court.

ARGUMENT

United Hospital Center, Inc. (*"UHC” or

"the hospital”) and Bruce Carter,

respondents, oppose the petition for writ

of certiorari of Saeed Mahmoodian,

M.D. (”"Mahmoodian”). The petition falls

outside the considerations governing review

on writ of certiorari and raises no special

or important issue sufficient in character

to call forth this Court’s jurisdiction.

Mahmoodian is in error when he asserts that

"case law and sound public policy demand”

that this Court "abandon the private

hospital-public hospital dichotomy and

apply the due process protection of the

Fourteenth Amendment to actions of

hospitals in terminating, -revoking or

refusing medical staff privileges to a

physician.” (p. 13). The case law is not

in conflict and public policy is being

advanced by the United States Congress.

—-

The West Virginia Supreme Court of

Appeals (the “state court”) refused to be

drawn into ae private hospital-public

hospital debate. Instead, the state court

based its judicial ~.v*iew upon an existing

professional relationship between UHC and

Mahmoodian. The state court reasoned:

an extensive discussion of this

public hospital/private hospital

dichotomy distracts attention

from more significant issues in

this case. The limited record

before us on the point supports

the factual finding of the

Circuit Court of Harrison County

that UHC is a private hospital

for purposes of personnel

decisions. Our analysis will,

therefore, be based upon UHC’s

private status.

We do note that the scope

judicial review of health mes

peer review decisions adversely

affecting the privileges of a

medical staff member is

essentially the same for private

and public hospitals. While

such decisions of public

hospitals must be reached after

affording "due process,” and

such decisions of private

hospitals must be reached after

affording "fair procedures,”

recent federal legislation would

encourage essentially all

hospitals to use the same

procedures. See infra note 10

(discussing the Federal Health

Care Quality Improvement Act of

1986, 82 U.S.C. §§ 11101-

11152). (Emphasis in original).

Note 2, A-52. [All references

to the decision below will be to

petitioner’s Appendix A].

Concerning the scope of judicial

review, the state court held:

Utilizing breach of contract

principles, most courts

explicitly addressing the issue

presented here have held, and we

hereby hold, that the decision

of a private hospital to revoke,

suspend, restrict or to refuse

to renew the staff appointment

or clinical privileges of a

medical staff member is subject

to limited judicial review to

insure that there was

substantial compliance with the

hospital’s medical staff bylaws

governing such a decision, as

well as to insure that the

medical staff bylaws afford

basic notice and fair hearing

procedures, including an

impartial tribunal. (A-16).

Thereby, the West Virginia court

joined a growing chorus of state courts

that have granted limited judicial review

of a private hospital’s medical staff

decisions. Medical staff bylaws are the

most common basis upon which most courts

now undertake judicial review.’ Some courts

have undertaken judicial review based upon

the public interest in the hospital’s

decision, the so-called "New Jersey rule”

stated in Greisman v. Newcomb Hospital, 192

A.2d 817 (N.J. 1963).° California courts

' Courtney v. Shore Memorial Hospital, 584

A.2d 817 (N.J. Super. 1990); Wong v. Garden Park

Community Hospital, 565 So.2d 550 (Miss. 1990);

Adkins v. Sarah Bush Lincoln Center, 544 S.E.2d 733

(Ill. 1989); Friedman v. Memorial Hospital of

Southbend, Inc., 523 N.E.2d 252 (Ind. App. 1988);

Pepple v. Parkview Memorial Hospital, 511 N.E.2d 467

(Ind. App. 1985); Vv. t ° t ncis

Health Sisters, 446 N.E.2d 359 (Ind. 1983); Even v.

Longmont Hospital Association, 629 P.2d 1100 (Colo.

1981); Huffaker v. Baily, 540 P.2d 1398 (Or. 1975);

Bricker v. Sceva Speare Memorial Hospital, 281 A.2d

589 (N.H. 1971); Blende v. Maricopa County Medical

Society, 393 P.2d 926 (Ariz. 1964); Levin v. Sinai

Hospital of Baltimore City, Inc., 46 A.2d 298 (Md.

1946).

* The progeny of Greisman v. Newcomb Hospital

include Nanavati v. Burdette Tomlin Memorial Hosp.,

526 A.2d 697 (N.J. 1987); Vv. . t

Hospital, 692 P.2d 1350 (N.M. App. 1984); Storrs v.

a j Ss and Homes

Inc., 609 P.2d 24 (Alaska 1980); Hawkins v. Kinsie,

540 P.2d 345 (Colo. App. 1975); ilv Vv.

Memorial Hospital, 497 P.2d 564 (Haw. 1972);

Davi Vv. own gn., 250 N.E.2d

have undertaken judicial review based upon

the state’s common law and fairness’ or upon

a specific provision of the California Code

of Civil Procedure.* An Alaska court held

that medical staff bylaws constitute a

contract between the physician and the

hospital and granted judicial review.”

Some states have denied any judicial

review of medical staff decisions of

private hospitals®, but the West Virginia

892 (Ohio App. 1969); Woodward v Porter Hospital,

Inc., 217 A.2d 37 (Vt. 1966).

Sywak v. O’Conner Hospital, 199 Cal. App.3d

423, 244 Cal. Rptr. 753 (1988); Miller v. National

Medical Hospital of Monterey Park, Inc., 124 Cal.

App.3d 81, 177 Cal. Rptr. 119 (1981); Pinsker v.

Pacific Coast Society of Orthodontists, 12 Cal.3d

541, 116 Cal.Rptr. 245, 526 P.2d 253 (1974).

* Anton v. San Antonio Community Hospital, 567

P.2d 1162 (Cal. 1977).

646 P.2d 857 (Alaska 1982)

80 (Mich. App. 1989); Barrows v. Northwestern

Memorial Hospital, 525 N.E.2d 50 (Ill. 1988);

Medical Center Hospital v. Terzis, 367 S.E.2d 728

(Va. 1988); Hottentot v. Mid-Maine Medical Center,

549 A.2d 365 (Me. 1988); Brandt v. St. Vincent

state court rejected that line of cases

when the termination of a preexisting

physician-hospital relationship is

involved.

This Court correctly observed that

state courts typically limit their review

of medical peer review decisions to be

assured that a reasonable procedure was

followed and that there was evidence to

support a finding that patient care was at

risk. Patrick v. Burget, 486 U.S. 94, 104-

O05, 108 S.Ct. 1658, 1665, 100 L.Ed.2d 83,

94 (1988). This unanimous Court was not at

all concerned that Oregon law would likely

limit judicial review to whether or not

reasonable procedures had been followed and

would not address the merits of the

underlying peer review decision. Id. The

Infirmary, 701 S.W.2d 103 (Ark. 1985); Velduis v.

Central Michigan Community Hospitals, 369 N.W.2d 478

(Mich. 1985).

decision of the West Virginia court exceeds

the anticipated scope of judicial review of

the Oregon court forecast by this Court.

United Hospital Center is described by

the state court as a

private, not for profit hospital

incorporated under the laws of

the State of West Virginia. It

was created voluntarily by

private individuals. It is

operated by an elected board of

directors. It is not owned or

operated by any governmental

entity. (A-6).

UHC is a “pure” private hospital, without

any contractual, financial or statutory

ties whatsoever to a state or local

governmental agency. State involvement

without state responsibility cannot

establish “a sufficiently close nexus

between the State and the challenged action

of the regulated entity that the action of

the latter may fairly be treated as that of

the state itself.” Jackson v. Metropolitan

Edison, 419 U.S. 345, 95 S.Ct. 449,42

L.Ed.2d 477 (1974). See also Flagg

Brothers, Inc. v. Brooks, 436 U.S. 149, 98

S.Ct. 1729, 56 L.Ed.2d 185 (1978). If UHC

is a “state actor” then every single

hospital in the United States must comply

with the due process clause of the

Fourteenth Amendment when taking action

adverse to a present or perspective member

of its medical staff. Such a decision

would be a radical and unnecessary change

in the law, with ramifications beyond

medical peer review decisions.

The dichotomy between private action

and state action and the due process clause

of the Fourteenth Amendment is well

established in health care law. Relying on

Jackson v. Metropolitan Edison, the Court

of Appeals for the Fourth Circuit, which

includes West Virginia, has held that the

existence of state statutes governing

myriad aspects of hospital operations, the

receipt of Hill-Burton funds, and

participation in the Medicare and Medicaid

programs, do not transmute ae private

hospital into a state actor. Modaber v.

Culpepper Memorial Hospital, Inc., 674 F.2d

1023 (4th Cir. 1982).

Other federal courts that _ have

considered the question have held likewise.

see Mendez v. Belton, 739 F.2d 15 (1st

Circ. 1984); in v. itte s

Association, 713 F.2d 414 (8th Cir. 1983);

Lipsett v. University of Puerto Rico, 637

F.Supp. 789 (D. Puerto -Rico 1986) and

Robbins v. Ong., 452 F.Supp. 110 (S.D.Ga.

1978); Shulman _v. Washi fe) ospital

Center, 222 F.Supp. 59 (D.D.C. 1963).

There is no conflict whatsoever among

the state courts on this federal due

process issue, and there is no reason for

the Court to visit the issue. Mahmoodian’s

reliance upon Greisman v. Newcomb Hospital,

192 A.2d 817 (N.J. 1963), is misplaced.

The New Jersey court did not declare

Newcomb Hospital to be a state actor, and

cian a aoe aaaliad

ae A ee

eae

judicial review was not undertaken on

constitutional due process grounds.

Judicial review was bottomed on the public

interest in a community hospital’s policy

that appeared to keep a fully licensed and

qualified osteopathic physician from

seeking hospital privileges and competing

with allopathic physicians that populated

medical societies and hospital medical

staffs in New Jersey. The decision was a

narrow one. Only the validity of the

medical staff’s bylaws that conditioned

hospital staff privileges on membership in

the medical society was at issue. 192 A.2d

at 824. A recent New Jersey decision

treats of Greisman and the present standard

of judicial review.

In reaching that’ conclusion

{i.e., in Greisman], we also

declared that “”reasonable and

constructive exercises of

judgment should be honored. . .”

Id. Just last year, we further

relaxed the test for judicial

review and stated that courts

should not interfere with a

hospital decision setting a

standard for admission “if it is

reached in the normal. and

regular course of conducting the

affairs of the hospital and is

based on adequate information,

regardless of form, origin, or

authorship, that is generally

considered feasible and reliable

by professional persons

responsibly involved in the

health care field.” Desai _v.

_Center,

(103 N.J. 79, 93, 510 A.2a 662

(1986) ].

N vati Vv. dette

Hospital, 526 A.2d 697, 701 (N.J. 1987).

The judicial review standard applied

by the West Virginia court here is like the

judicial standard applied by a New Jersey

court that sustained a private hospital’s

action against a disruptive physician.

Courtney v. Shore Memorial Hospital, 584

A.2d 817 (N.J. Super. 1990). Relying on

Nanavati Vv. Burdette Tomlin Memorial

Hospital, supra, the New Jersey court said:

When the decision relates to

Subjective matters such. as

disruptive conduct, a

termination of hospital

privileges requires a finding

ie]

ame

oe ee ee ge

that prospective disharmony will

probably have an adverse effect

on patient care. .. . In all

events, the courts are enjoined

to recognize the expertise of

the board and the extensive

external regulation to which it

is subjected.

Id. at 818.

It is not enough for Mahmoodian to

cite to this Court cases where state courts

"have shown a willingness to review actions

of private hospitals on the ground that

private hospitals are sufficiently involved

with public interest to warrant judicial

intervention.” (p. 15). The West Virginia

court did undertake judicial review of the

decision of UHC. Yet, this is the best

Mahmoodian can do. He is unable to direct

this Court to any authoritative state or

federal decision that would support

application of the due process clause of

the Fourteenth Amendment to the decision of

the UHC board of directors to follow the

recommendation of its medical staff and

revoke the medical staff privileges of

Mahmoodian. See supra notes 1 to 6.

This case represents no more than the

garden variety medical privilege/discipline

issue now commonplace in this country as

hospitals respond to federal and state

legislation supporting medical peer review,’

and to a high tide of medical malpractice

suits carrying a corporate negligence count

against a hospital for failure to police

its medical staff privileges.

The Court need not intervene here in

reply to Mahmoodian’s public policy plea

because the Congress of the United States

By 1985, forty-five (45) states had adopted

legislation establishing some form of qualified

privilege to protect medical peer review work from

disclosure in order to encourage effective medical peer

review. ¥ oO. v. West V j d

Medicine, 352 S.E.2d 66 (W.Va. 1986). By 1986, Congress

enacted the Federal Health Care Quality Improvement Act

(42 U.S.C. §$§ 11101-11152) to encourage good faith

medical peer review to identify incompetent or

unprofessional practitioners.

ee ee ee

has acted to introduce —e hearing

procedures and standards into medical peer

review matters in both private and public

hospitals. The Federal Health Care Quality

Improvement Act of 1986 (HCQIA), 42 U.S.C.

§§ 11101-11152, was enacted to deter

litigation arising out of the grant or

denial of hospital medical staff

privileges. Congress expressly found that

"(tjhere is an overriding national need to

provide incentive and _ protection for

physicians engaging in effective

professional peer review.” 42 U.S.C.

11101(5).

The Act creates a National Data Bank

to record medical malpractice judgments and

settlements as well as adverse peer review

decisions. Hospitals and their medical

staff members that request Data Bank

records on physicians holding or seeking

medical staff privileges and that meet

certain procedures and standards for peer

review action are qualifiedly immune from

suit for money damages under state or

federal law. 42 U.S.C. 11111(a). The

specific standards and procedures for peer

review action are reprinted in the appendix

(“F”) to this brief in opposition. The Act

is not intended to change any federal or

state law concerning the judicial standard

of review of peer review activities [42

U.S.C. 11115(a)], but the Act will produce

uniform peer review procedures among public

and private hospitals to secure’ the

qualified immunity.

Whether Mahmoodian had adequate

opportunity to cross-examine witnesses was

fully briefed and argued on appeal and

addressed by the state court, which held:

The procedure in question was

reasonable for peer review. ..

- The procedure here certainly

complied with the medical staff

bylaws, which authorized an

evidentiary hearing without

strict adherence to evidentiary

rules applicable to civil or

criminal trials in courts of

law. - « + Also, each of the

procedural rights afforded

Dr. Mahmoodian would satisfy the

hearing standards established by

the Federal Health Care Quality

Improvement Act of 1986.

(Citations and footnotes

omitted). (A-26 to 27).

The trial court, after a three-day

evidentiary hearing on Mahmoodian’s motion

for a preliminary injunction, made a like

factual finding (Appendix C, Finding No. 3)

and concluded that ”The actions of UHC were

in accord with the procedures provided

under the Bylaws of the Medical Staff and

were not exercised in an arbitrary and

capricious manner.” (Appendix Cc,

Conclusion No. 3).

Whether or not Mahmoodian was denied

an adequate opportunity to cross-examine

witnesses is not a transcendent issue to

call f#.ith this cCourt’s discretionary

review. A writ of certiorari is not for

the purpose of second guessing’ the

considered judgment of the highest court of

a state on such a case-specific issue.

Review of this issue would have no effect

whatsoever on the larger body of law that

applies to medical peer review.

Below as here, Mahmoodian challenged

the motive of the medical staff for acting

against hin. The state court, which

adopted a “substantial evidence” standard

over a less invasive/inquiring “arbitrary

and capricious (or abuse of discretion)”

standard (A-45), found in the record

“substantial evidence supporting (the

hospital’s) decision.” (A-50). The state

court specifically referred to three "of

the more egregious incidents” (the court’s

Own words) supporting the decision; the

state court also noted "”The record is

replete with other evidence supporting the

hospital’s decision to revoke or.

Mahmoodian’s staff appointment privileges.”

(A-46 to 50).

Mahmoodian’s assertion that UHC’s

medical staff bylaws failed to provide a

sufficiently definite standard to which he

might conform his conduct is’ without

factual or legal merit. UHC’s medical

staff bylaws require that members of the

medical staff “”adhere to the ethics of

their profession” and demonstrate an

ability to work with others” so that “any

patient treated (by the physician in

question) will be given a high quality of

medical care.” (Medical Staff Bylaws

3.02). Corrective action against a member

of the medical staff is undertaken

“whenever the activities or professional

conduct of any practitioner with clinical

privileges are considered to be

disruptive to the operations of the

hospital.” (Medical Staff Bylaws 7.01).

The American College of Obstetricians and

Gynecologists (ACOG), of which Mahmoodian

is a fellow, charges its members with

adherence “to the social and ethical

principles of honesty, loyalty, courtesy,

and respect for the rights of others -

above all honesty. .. . No Fellow should

use opportunities arising out of contact

with patients, colleagues, or the general

public for self-aggrandizement or for

demeaning the reputation of a colleague.”

Ethical Considerations in the Practice of

Obstetrics and Gynecology (7th ed.).

Mahmoodian was no stranger to the

conduct requirements of the medical staff

bylaws, which were fleshed out for him in

repeated corrective actions in the 1970’s,

including a one-year reduction in 1977 from

active medical staff to provisional medical

status for conduct like the conduct that

again subjected him to medical staff

scrutiny in 1987 and 1988.

The standard of “unprofessional

conduct” in medical staff bylaws is

sufficiently objective to guard against

arbitrary and unreasonable application.

ow a , 1j a]

Hospital, supra. Application of an

“unprofessional conduct” standard

encompasses disruptive personal and

professional relationships with other

hospital personnel. Even v. Longmont

Hospital Association, 629 P.2d 1100 (Colo.

1981). in. accord, McMillan v. Anchorage

Community Hospital, 646 P.2d 857 (Alaska

1982). It is for a hospital to decide

whether personality differences are

detrimental to the efficient operation of

the hospital. Robbins v. Ong, 452 F.Supp.

110 (S.D.Ga. 1978). A failure of good

moral character may also subject a

physician to censure; good medical care

alone is not’ sufficient to justify

licensure and the highest degree of

personal integrity may be expected.

Alsabti v. Board of Registration of

Medicine, 536 N.E.2d 357 (Mass. 1989). See

also Hirsh, "Di ive” ad ad

Physician in the Hospital, 35 Medical Trial

Technique Quarterly 304, Calaghan & Co.

1989; Springer and Casale, Hospitals and

¢) Di bi Health c ; titi .

to Warrant Exclusion?, 24 Duquesne Law

Review 377, 383-384 (1985).

The state court concluded:

Accordingly, we believe

sections 7.01 and 3.02 of the

medical staff bylaws in this

case set forth a _ reasonably

definite standard of

professional conduct for

purposes of basic notice to

medical staff members as to what

behavior is and is not expected

of then. Moreover, in this

particular case, given

Dr. Mahmoodian’s history as far

back as 1974 of seven other

“corrective actions” by the

medical staff for similarly

disruptive behavior, his

assertion that he did not know

what constituted such behavior

is implausible. (A-31 and 32).

CONCLUSION

For the foregoing’ reasons, the

petition for a writ of certiorari to the

West Virginia Supreme Court of Appeals

should be denied.

Respectfully submitted this 16th day

of August, 1991.

Herbert G. Underwood, Esq.

Irene M. Keeley, Esq.

Matthew J. Mullaney, Esq.

STEPTOE & JOHNSON

P.O. Box 2190

Clarksburg, WV 26302

(304) 624-8000

Counsei for Respondents

APPENDIX

ey Order, findings of fact, and

-conclusions of law of the trial court

on Mahmoodian’s motion for a

preliminary injunction, entered

February 1, 1989

o, Chronology and description of events

before United Hospital Center and its

medical staff concerning the

privileges of Dr. Mahmoodian

E. Report and Recommendation of the

Hearing Committee

F. Health Care Quality Improvement Act,

Standards for Professional Review

Actions

Respondents begin lettering this

appendix with ”"C” to take account of

petitioner’s appendix, which contains items

*A* and “B*.

IN THE CIRCUIT COURT

OF HARRISON COUNTY, WEST VIRGINIA

SAEED MAHMOODIAN, M.D.,

Plaintiff,

Ws // Civil Action No.. 89-C-25-1

UNITED HOSPITAL CENTER, INC.,

BRUCE C. CARTER, ALI RAHIMIAN,, M.D.

and FLORENCIA C. LOPEZ, M.D.

Defendants.

ORDER

On the 27th day of January, 1989, came

the plaintiff, Saeed Mahmoodian, M.D. by

his attorney, Jerald E. Jones, and came the

defendants United Hospital Center, Inc.

("UHC”) and Bruce C. Carter by two of their

attorneys, Herbert G. Underwood and Gordon

H. Copland, pursuant to the request of the

plaintiff for injunctive relief.

Now pending before the Court is the

motion of the plaintiff for a preliminary

injunction whereby the plaintiff seeks an

injunction requiring the defendant, United

Hospital Center, Inc., to continue the

plaintiff’s active staff privileges during

the pendency of this civil action.

The original complaint sought a

complete restoration of plaintiff’s

privileges as a medical staff appointee at

UHC, including the restoration of the

privilege to do Wertheim (*radical”)

hysterectomies. The plaintiff now seeks

only a return of all such privileges other

than the privilege to perform Wertheim

("radical”) hysterectomies.

In addition to preliminary and

permanent equitable relief, the plaintiff,

by his verified complaint, seeks

compensatory and punitive damages from UHC

and the other defendants.

The Court has heard three days of

testimony and now has before it the

exhibits introduced at the hearing and

filed by the parties with their pleadings,

motions, and briefs. Upon consideration of

the testimony, the entire record, and the

arguments and briefs of counsel the Court

makes the following findings of fact and

conclusions of law.

Findings of Fact

UHC is a private not-for-profit

hospital under the laws of the state of

West Virginia which is operated by an

elected Board of Directors and is not owned

or operated by any governmental entity and

is the only hospital in Harrison County,

West Virginia, which provides all phases of

hospital care for the general public and

the only hospital in said county available

for the hospitalization and treatment of

obstetrical and gynecological patients.

Ze The plaintiff, Saeed Mahmoodian,

is a physician, licensed to _ practice

medicine in the State of West Virginia; he

is board certified in obstetrics and

gynecology; he has been afforded staff

privileges in obstetrics and gynecology at

United Hospital Center, Inc. or its

predecessor corporation, for approximately

eighteen years; he is not licensed to

practice medicine in any state other than

West Virginia; he does not have staff

privileges at any hospital other than

United Hospital Center, Inc. and from that

time his practice at UHC has been subject

to the Bylaws of the Medical Staff.

3 On or about February 6&8,

1988, UHC began against the plaintiff the

"corrective action” process, at issue here,

as provided for in the UHC Medical Staff

Bylaws. Dr. Mahmoodian was notified of the

formation of an investigative committee and

at all subsequent stages of the process was

informed of the procedures and the nature

and extent of his right to participate.

Dr. Mahmoodian was represented by counsel

during the process. By counsel, Dr.

Mahmoodian objected at various points to

the procedures. The Court finds, however,

that the procedural provisions of the

Bylaws were substantially followed,

including the Ad Hoc Review Committee

allowing the members of the Ad_ Hoc

Investigative Committee to submit hearsay

testimony and to summarize evidence

obtained by that committee. The adequacy

of the Bylaws provisions is addressed in

the Conclusions of Law.

4. The members of the Medical Staff

Ad Hoc Investigative Committee, none of

whom were competitors of the plaintiff,

recommended termination of the plaintiff’s

privileges. The Executive Committee of the

Medical Staff adopted the recommendation.

The plaintiff exercised his right, by

counsel, according to the Medical Staff

Bylaws, to a hearing before an Ad Hoc

Review Committee appointed to review the

charges and hear the evidence. The members

of the Ad Hoc Review Committee were not

competitors of the plaintiff and had not

participated in the investigative process.

The Ad Hoc Review Committee convened on May

4, 1988 and continued its hearing on three

additional occasions. During the hearing,

over the objection of plaintiff, there were

occasions that the Committee received

hearsay and opinion evidence in support of

the recommendation of the Medical Executive

Committee. Plaintiff also submitted

hearsay evidence to rebut the

recommendation of the Medical Executive

Committee. At the conclusion of its

deliberations, the Ad Hoc Review Committee

issued a written decision which upheld the

recommendation to terminate the plaintiff’s

privileges. Subsequently, at a special

meeting of the Medical Staff on October 18,

1988, by a vote of 32-17, the Medical Staff

voted to recommend termination of the

plaintiff’s medical staff privileges.

Thereafter, the plaintiff exercised his

right, by counsel, to an appellate review

before the UHC Board of Directors.

Together with his attorney, he met with the

Appellate Review Committee, on December 8,

1988. On December 27, 1988, the Appellate

Review Committee of the Board of Directors

voted to terminate the plaintiff’s staff

privileges effective January 31, 1989.

Pursuant to the Medical Staff Bylaws,

plaintiff was notified of the deci’ion by

defendant Carter on December 28, 1988.

S. The basis for the termination was

that the plaintiff had engaged in a pattern

of behavior which was’ unprofessional,

disruptive of the proper functioning of the

obstetrical/gynecological (*”OB/GYN”) unit

of the hospital and violative of the

standards set forth in the Medical Staff

Bylaws. For reasons set forth in the

Conclusions of Law, the Court is not

empowered to make a de novo determination

of these issues.

6. The Bylaws of the Medical Staff

at UHC do not condition “corrective action”

for physicians holding staff privileges on

patient harm or the likelihood of patient

harm and there was no evidence that the

plaintiff was not qualified to practice

obstetrics and gynecology, or that his

presence on the staff had actually harmed a

specific patient.

7. UHC receives payments for patient

care from various governmental sources,

including the Medicare and Medicaid

programs. The plaintiff has not shown any

nexus between the decision of UHC to

terminate the privileges of the plaintiff

and those payments or any branch of

government.

8. The termination of plaintiff’s

staff privileges at United Hospital Center,

Inc. substantially affects and curtails his

ability to practice obstetrics and

gynecology as hospital privileges are of

paramount importance in that medical

specialty and his inability to use United

Hospital Center facilities will have a

Significant impact upon his practice and

upon his income. The plaintiff has not

applied for staff privileges at other

hospitals in the locality surrounding

Harrison County and did not demonstrate

that he is unable to obtain clinical

privileges at those hospitals. Nor did he

refute that there are physicians available

on the Medical Staff of UHC to provide

OB/GYN services to the class of patients

served by the plaintiff.

9. The plaintiff, in addition to his

private practice, is the only physician who

presently attends indigent female patients

at the Harrison County Health Department

Pre-Natal Clinic and Family Planning

Clinic. The patients of the Pre-Natal

Clinic consist of thirty to forty pregnant

females who will need hospital facilities

for child birth.

10. Certain of the current

obstetrical patients of the plaintiff

present special risks in regard to their

delivery or their health generally.

Precluding cave of them by Dr. Mahmoodian

and requiring their transfer to other

physicians would not serve their best

interests or provide the safest mode of

treatment. The latter conclusion also is

applicable to any GYN patients of the

C10

plaintiff as of January 31, 1989, who may

require gynecological surgery in the near

future.

11. In conformity with the provisions

of the Bylaws which provide for such,

except in cases of summary suspension, the

plaintiff has continued to practice at

United Hospital Center during the course of

the disciplinary proceedings against hin.

Conclusions of Law

i. The Court concludes that in

ruling on a preliminary injunction request,

it must balance the equities of the case

and, in doing so, must consider’ the

following:

(1) The probability of

irreparable harm to

the plaintiff if the

injunction is denied;

(2) The probability of

harm to the defendant

if the injunction is

granted;

Cil

ed |

(3) The likelihood of

success on the merits;

(4) The public interest.

2. The burden is on the plaintiff

to establish his entitlement to a

preliminary injunction.

3. The restrictions of the

Constitutions of the United States and West

Virginia apply only with respect to

governmental action. The action of an

otherwise private entity can become “state

action” for the purposes of the

constitutional restrictions only if there

is a sufficient nexus between the

challenged act and the government.

4. There is no sufficient nexus

between the termination of the privileges

of the plaintiff and a governmental entity

to require this Court to conclude that the

hospital’s actions constitute state action;

therefore, the action terminating the

C12

plaintiff’s privileges was not governed by

the restrictions of the Constitutions of

West Virginia or of the United States.

5. The only procedural protections

to which the plaintiff was entitled were

those found in the Bylaws of the UHC

Medical Staff.

6. The actions of UHC were in

accord with the procedures provided under

the Bylaws of the Medical Staff and were

not exercised in an arbitrary and

Capricious manner.

7. Although the Court finds that

UHC is a private hospital, it nevertheless

concludes that UHC is required to comply

with its own Bylaws and the due process

provisions contained therein, in

terminating the privileges of a staff

appointee.

8. The Court further concludes that

a court may not substitute its judgment for

C13

‘hat of the medical staff and the Board of

Directors of a private hospital in matters

regarding medical staff privileges. The

Court, however, holds that it may overturn

such a decision if the decision is

arbitrary and capricious.

9. The plaintiff has not shown that

denial of the request for a preliminary

injunction will cause him irreparable harn.

10. The plaintiff has not shown any

likelihood of success on the merits of his

Claim for injunctive relief against UHC;

furthermore, the Court holds that the

plaintiff’s claim against UHC as presented

in this hearing will probably fail on the

merits for injunctive relief. There is no

indication that the plaintiff can prevail

on his claim for permanent injunctive

relief against UHC because UHC is not a

public hospital; nor is it likely that the

plaintiff can show that the termination

C14

ate —_~ |

decision of the hospital was arbitrary and

capricious.

11. The public interest in the

overall quality of patient care at UHC and

the efficient operation of the hospital

must be balanced with the interest of

specific patients of Dr. Mahmoodian in

continuity of care. This latter interest

may be served by the granting of a

temporary and limited injunction.

Order

In weighing all of the foregoing, the

Court does hereby ORDER that the

plaintiff’s Motion is DENIED conditioned

upoi. the requirement that the defendant

shall grant temporary and limited

privileges to the plaintiff for a period of

90 days from January 31, 1989 or until such

time as all of the patients as of January

31, 1989 of the plaintiff presently in

their third trimester of pregnancy are

C15

delivered. The privileges shall be limited

in scope and extent as described below:

The scope of 8 clinical

practice allowed under the

temporary privileges shall

be that possessed by the

plaintiff prior to the

initiation of ~corrective

action by UHC; provided,

however, that the hospital

is not required to grant

privileges to the plaintiff

to perform Wertheim

(radical) hysterectomies;

and,

2. The privileges shall apply to

persons who are OB/GYN patients

of the plaintiff as of January

was 1989 who also meet the

following conditions:

a. OB patients in the third

trimester of their

pregnancy; or,

b. GYN patients who are in

need of surgical treatment.

The plaintiff is to provide within the next

ten (10) days a list of his obstetrical

patients who, as of January 31, 1989, are

in their third trimester of pregnancy.

C16

The parties hereto object and except

to the extent their respective interests

are affected thereby.

By agreement of the parties, the

injunction bond required by W.Va. Code §53-

5-9 is hereby waived for the duration of

this Order.

The Clerk is directed to send a

certified copy of this Order to counsel of

record.

ENTER:

Judge

C17

Chronology and Description of Events

Before UHC and Its Medical Staff

, , ;, .

Hedacal Start Executive —Sosmittes- I Teg pay

Feb. 8, 1988 -

The Executive Committee of the

Medical Staff received a request

for corrective action from Bruce

Carter, Administrator of United

Hospital Center, Inc., regarding

plaintiff’s care and treatment of

patients, particularly Geneva Boran,

and complaints that plaintiff had

engaged in unprofessional conduct

and a practice of harassment of

employees and physicians at United

Hospital Center.

Feb. 11, 1988 -

Dr. Bryant, President of the Medical

Staff, notified Plaintiff that, in

accordance with the Bylaws of the

Medical Staff of United Hospital

Center, he had appointed an ad hoc

investigative committee to review

the request for corrective action

and that plaintiff would be

contacted in order to confirm a time

on February 12, 1988 for his

interview with the committee.

Feb. 12, 1988 -

By letter from counsel, plaintiff

notified the chairman of the ad hoc

investigatory committee that he

ae ek nat POE

would not participate in the

committee’s proceedings.

Feb. 16, 1988 -

By counsel, the Committee advised

plaintiff in writing that such

interviews by the medical staff are

not accusatory and have permitted

physicians involved in such

investigations to discuss complaints

prior to any definitive action being

taken, but that if plaintiff

declined to discuss the matters

raised in the complaints with the

Committee, it would submit its

recommendation to the Executive

Committee of the Medical Staff

without the benefit of his input.

The letter also noted that Dr.

Mahmoodian had participated in a

Similar investigative interview the

previous year during an earlier peer

review proceeding.

Feb. 23, 1988 -

By counsel, plaintiff reiterated his

position that he should not “be

hauled in before a Committee.”

Mar. 1, 1988 =

Counsel for the medical staff

committee again advised plaintiff’s

counsel that the request for an

intraprofessional investigative

interview was not accusatory but was

for the purpose of extending to the

plaintiff the opportunity to appear

at the Committee’s meeting.

Mar. 3, 1988 -

Dr. Mahmoodian, with his attorney,

met with the investigative

committee, which also had an

attorney present, to explore the

medical staff’s concerns.

Mar. 18, 1988 -

The ad hoc investigative committee,

after 22 hours of interviews and

deliberations over the course of

several meetings, filed a written

report of its findings and

recommendations with the Medical

Executive Committee.

; , :

Se ete Samah ae Sy ST

Mar. 22, 1988 -

Plaintiff was notified that, in

accordance with the Bylaws of the

Medical Staff of United Hospital

Center, the Executive Committee, at

its regular monthly meeting on

Monday, March 21, 1988, had reviewed

the recommendation of the ad hoc

investigative committee and had

voted to recommend the ad hoc

committee’s recommendation to the

Board of Directors. Pursuant to

Article VIII of the Medical Staff

Bylaws, plaintiff was further

notified of his right to a hearing

before an ad hoc hearing (review)

committee of the medical staff

before any recommendation was

forwarded to the Board.

Mar. 30, 1988 -

Plaintiff requested a hearing and

the right to be represented by an

attorney at the hearing.

Apr. 7, 1988 -

After agreement among the parties

regarding scheduling, plaintiff was

notified that the requested hearing

was scheduled for Wednesday, May 4,

1988 and of the procedure to be

there followed in accordance with

Article VIII of the Medical Staff

Bylaws.

May 4, 1988 -

The ad hoc hearing committee of the

Medical Staff convened with Charles

Johnson, a local attorney at law,

presiding as hearing examiner. The

committee members were William

Walker, M.D., Seetha Ginjupalli,

M.D. and Paul Braeger, M.D. None of

these physicians was associated with

or in competition with plaintiff and

none had any previous knowledge of

the complaint under review.

May-Aug, 1988 -

The ad hoc hearing committee met on

five occasions to determine if the

recommendation of the Medical

Executive Committee was fair and

reasonable. Plaintiff appeared in

Safi

person and by counsel and

participated fully in the hearing.

At the conclusion of the hearing, by

agreement of all the parties,

written memoranda were submitted by

the Executive Committee and Dr.

Mahmoodian.

Sept.14, 1988 -

Plaintiff was sent the written

Report and Recommendation of the

Hearing Committee and notified of

his right to request an appellate

review by the Governing Board in the

event that the Executive Committee

made an adverse recommendation.

Thereafter, before any appellate

review occurred, the suggested

procedure was corrected and

plaintiff was notified of his right

to a full hearing before the full

medical staff prior to submission of

any recommendation of the Medical

Executive Committee to the Board of

Directors, all as provided by the

applicable Medical Staff Bylaws.

Special Medical Staff Meeting

Oct. 18, 1988 -

Pursuant to notice given on October

4, 1988, a special meeting of the

full medical staff was held to

review the action of the Ad Hoc

Review Committee. At that meeting,

plaintiff provided both a written

and oral presentation of his case.

By a vote of 32-17, the medical

staff voted to recommend termination

of his medical staff privileges. By

a vote of 40-6, it also voted to

suspend his privileges to perform

Wertheim (radical) hysterectomies.

No competitor of the plaintiff voted

on the issues.

Board of Directors, Appellate Review

Committee

Dec. 8, 1988 -

Plaintiff, accompanied by counsel,

met with the appellate review

committee of the Board of Directors.

Prior to that plaintiff and his

counsel had reviewed the membership

of that committee and objected to

several individuals, who were then

removed from the Committee’s

deliberations.

Dec. 28, 1988 -

Plaintiff was notified of the action

and decision of the appellate review

committee of the Board of Directors.

UNITED HOSPITAL CENTER, INC.

In the matter of:

Saeed Mahmoodian, M.D.

REPORT AND RECOMMENDATION

OF HEARING COMMITTEE

On February 8, 1988, the Executive

Committee of the Medical Staff of United

Hospital Center appointed an Ad Hoc

Committee to investigate various matters

pertaining to the staff privileges of Saeed

Mahmoodian. By letter dated February 1,

1988, Dr. Mahmoodian was notified that a

committee consisting of Doctors Franklin

Oliverio, Samuel Guy, Charles Lefebure and

James Bland had been appointed.

The Ad Hoc Committee of the Medical

Staff met four times and _ conducted

interviews with physicians, hospital

employees and .ormer patients and reviewed

documentation and hospital records

concerning Dr. Mahmoodian. At the

conclusion of those hearings, the Committee

unanimously recommended that the privileges

of Dr. Mahmoodian to perform Wertheim

hysterectomies with pelvic

lymphadenectomies be suspended pending

further review through the Credentials

Committee, and that the staff privileges of

Dr. Mahmoodian at United Hospital Center be

terminated because his behavior endangered

the quality of patient care and the

existence of the obstetrics/gynecological

service at United Hospital Center.

The Executive Committee adopted the

recommendations of its Ad Hoc Committee,

and pursuant to the bylaws of the Medical

Staff, Dr. Mahmoodian was notified of this

decision, which decision was adverse to

him, and he exercised his right to have a

hearing before a Committee appointed by the

Medical Staff. The President of the

Medical Staff appointed a Committee

consisting of Doctors William N. Walker,

Seetha Ginjupalli and Paul Brager, and by

agreement of all the parties, the Executive

Committee and Dr. Mahmoodian were permitted

to be represented by counsel at any hearing

before such Committee.

The Hearing Committee convened its

hearing on May 4, 1988, and continued this

hearing on four additional occasions. At

the conclusion of the hearing, by agreement

of all the parties, memoranda were

submitted by the Executive Committee and

Dr. Mahmoodian.

The Committee agrees with the

recommendation of the Investigative

Committee concerning performance of

Wertheim hysterectomies with pelvic

lymphadenectomies. Based on the evidence

before the Committee, there hWsS been a

substantial question raised not only about

the method by which this procedure

eee ee betel

Lod

presently is being performed at UHC but

also about whether such surgery should .=5

performed at this community hospital. The

Executive Committee presented evidence

supporting its recommendation, and Dr.

Mahmoodian failed to demonstrate that such

recommendation involved no factual basis,

or that the basis was arbitrary,

unreasonable or capricious.

Regarding the recommendation that the

staff privileges of Dr. Mahmoodian be

terminated, the bylaws of United Hospital

Center, particularly Article VII, Section

7.01 provide that if the activities or

professional conduct of any practitioner

are considered lower than the standards or

aims of the Medical Staff, or to be

disruptive of the operations of the

Hospital, corrective action may be taken.

In the matter now before the Committee, the

corrective action which was recommended by

the Investigative Committee was termination

of the staff privileges of Dr. Mahmoodian.

The evidence presented to this

Committee by the Investigative Committee

demonstrated that the conduct of Dr.

Mahmoodian fell within that conduct

described in the above. section. The

Committee finds that there is an ongoing

dispute between Doctors Mahmoodian and

Rahimian and Dr. Mahmoodian and the nurses

in the obstetrical department. The weight

of the evidence supports the conclusion

that Dr. Mahmoodian has instigated the

turmoil and hostility which exists in that

department.

A member of the Investigative

Committee testified that there is a general

fear of Dr. Mahmoodian among the medical

and nursing staff of the Hospital’s

obstetrical department. Dr. Mahmoodian

acknowledged that he considers at least two

of his fellow physicians as enemies and

does not speak to several of the nurses

with whom he has had disagreements.

Concerning the issue of whether any

specific harm to patients has actually

occurred, one of the members of the

Investigative Committee testified that

although he was not aware of any specific

harm to patients as a result of the

behavior of Dr. Mahmoodian, he felt that

the potential existed that such behavior

would adversely affect patient care.

In one instance, being that of Noreen

Pursley, the transcript of her testimony

before the Investigative Committee did

indicate that patient care was. being

compromised as a result of the feud between

Dr. Mahmoodian and Dr. Rahimian. In

addition, the attempted interruption of a

surgery by Dr. Mahmoodian as described by

one nurse could potentially have resulted

in adverse consequences for the patient.

Testimony concerning Virginia Edgell

likewise demonstrated that patient care

could have been compromised. The Committee

believes that these examples, together with

others in the record, as well as the

evidence of open hostility between Dr.

Mahmoodian and the physicians and nurses in

the obstetrical department, discussed

above, support the conclusion that it is

likely that patient care will be affected

if appropriate correction action is not

taken.

The witnesses also presented, and the

Committee reviewed, evidence concerning

past behavior on the part of Dr. Mahmoodian

for the purpose of determining whether a

pattern of disruptive behavior oor

unprofessional conduct existed which was

unlikely to change through corrective

action. Dr. Mahmoodian had been

AMM 5 uk

;

reprimanded on one occasion, and his

privileges curtailed on a second occasion

by the Medical Executive Committee and the

Board of Directors for conduct similar to

the conduct currently under review. There

is mo reasonable likelihood that Dr.

Mahmoodian will change his behavior and

work to achieve the level of professional

cooperation and collegiality necessary to

assure quality patient care in the

obstetrical department of the Hospital.

The adverse decision of the Executive

Committee concerning the issue of the

privileges of Saeed Mahmoodian, M.D. was

supported by appropriate evidence. The

rebuttal presented by Dr. Mahmoodian failed

to show that the decision of the Executive

Committee lacked any factual basis or that

such decision was arbitrary, unreasonable

or capricious. The Committee reviewed and

considered the testimony of Dr. Mahmoodian

himself, and all documents submitted with

his testimony including affidavits of

patients regarding his care and treatment

of them.

According to the bylaws of the Medical

Staff, this Committee may recommend

confirmation, modification or rejection of

the original decision of the Executive

Committee. Based on all the evidence

adduced, and the submissions of counsel,

the Committee unanimously recommends to the

Executive Committee that its original

decision on which these hearings were

conducted concerning Saeed Mahmoodian,

M.D., be confirmed in its entirety with a

modification pertaining to Wertheim

procedures, that the review by the

Credentials Committee be concluded on or

before January 1, 1989, but if such review

is not completed by that time, then it is

the recommendation of this Committee that

arabe

Ti Se! i ra AE as A IR ld

the portion of the original decision of the

Executive Committee suspending Dr.

Mahmoodian’s privileges to perform Wertheim

hysterectomies with pelvic

lymphadenectomies be rejected, and his

privileges in that area restored.

Respectfully submitted,

William N. Walker, M.D.

Chairman

- Seetha Ginjupalli, M.D.

Paul Brager, M.D.

E10

Health Care Quality Improvement Act,

Standards for Professional Review

Actions

§11112 Standards for professional review

actions

(a) In general -

For purposes of the protection set forth

in section 11111(a) of this title, a

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 requirement of

paragraph (3).

A professional review action shall be

presumed to have met the _ preceding

standards necessary for the protection set

out in section 11111(a) of this title

unless the presumption is rebutted by a

preponderance of the evidence.

fies

(b) Adequate notice and hearing

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,

(ii) any time limit (of not less

than 30 days) within which to request

such a hearing, and

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 required 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 artbitrator

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;

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 had 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.

A professional review body’s failure to

meet the conditions described in this

subsection shall not, in itself, constitute

failure to meet the standards of subsection

(a) (3) of this section.

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.