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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 863

## Text

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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)

iv

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.

vi

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

5
“—

}

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

3

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

I

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.

7

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.

8

ARGUMENT
1.

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.

9

—-

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

10

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

11

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

12

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).

5
646 P.2d 857 (Alaska 1982)

© Sarin v. Samaritan Health Center, 440 N.W.2d
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

13

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).

14

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
15

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

16

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

17

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

18

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

19

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

20

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.

2.

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.

21

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

22

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.
3

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

23

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

24

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).

25

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

26

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

27

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

28

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

29

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

30

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

Cl

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

C2

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

C3

=

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

C4

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

C5

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

C6

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

C7

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

c8

|

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

C9

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,

a

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

D1

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.

D2

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

D3

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

D4

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.

D5

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.

D6

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

El

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

E2

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

E3

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

E4

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

E5

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

E6

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

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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

E8

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

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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.

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(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

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

(2) Notice of hearing

If a hearing is requested on a timely basis
under paragraph (1)(B), the physician
involved must be given notice stating--
(A) the place, time, and date, of
the hearing, which date shall not be
less than 30 days after the date of
the notice, and
(B) a list of the witnesses (if
any) expected to testify at the
hearing on behalf of the professional
review body.

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(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;

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

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

(ii) to have a record made of
the proceedings, copies of which
may be obtained by the physician
upon payment of any reasonable
charges associated with the
preparation thereof.

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

(iv) to present evidence
determined to be relevant by the
hearing officer, regardless of
its admissibility in a court of

F3

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2424%3A1. Public record. Not legal advice.