United States District Court, W.D. Washington, Tacoma
ORDER [DKTS. #12, #13, #28]
B. LEIGHTON, UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendant Franciscan Health
System's Motion to Dismiss [Dkt. # 12], Plaintiff Alaa
Elkharwily's Motion for Leave to File a Second Amended
Complaint [Dkt. #13], and Franciscan's Motion for
Sanctions [Dkt. #28]. This is the second case arising out of
Elkharwily's failure to obtain privileges at St. Joseph
Medical Center. Elkharwily alleges that Franciscan and its
attorneys concealed and fabricated evidence at the first
trial, resulting in fraud on the court. Franciscan argues
that res judicata bars Elkharwily's baseless
fraud claims because Judge Bryan previously adjudicated them.
is a physician with a bi-polar disorder diagnosis. In 2012,
Group Health (a non-party) offered Elkharwily employment as a
night-shift hospitalist (or nocturnist), contingent on him
receiving privileges to practice at Franciscan's St.
Joseph Medical Center in Tacoma.
medical executive committee (comprised of doctors and
hospital administrators) reviewed Elkharwily's
application for privileges and granted him temporary
privileges. Shortly thereafter, Franciscan's credentials
committee issued a report to the executive committee
concerning “red flags” in Elkharwily's
background. The executive committee rescinded
Elkharwily's temporary privileges, and requested that
Franciscan Dr.'s deLeon and Haftel interview Elkharwily
about the report. After the interview, the doctors expressed
concerns to the medical executive committee about
Elkharwily's clinical competence.
executive committee ordered a competency assessment, noting
that Group Health could proctor (provide on-the-job
supervision and assessment) Elkharwily. Group Health approved
a six-week proctoring plan that allowed Elkharwily to shadow
the day-shift hospitalist team. The executive committee
determined that because Elkharwily is a nocturnist, he needed
nighttime proctoring. Group Health informed the executive
committee that it did not have adequate staffing to proctor
Elkharwily at night. The executive committee determined that
Elkharwily could not gain sufficient clinical experience to
obtain hospital privileges and upheld its decision to rescind
Elkharwily's temporary privileges.
appealed to a review-hearing panel that consisted of three
active Franciscan staff members who were unfamiliar with the
case. The panel made a non-binding recommendation that the
executive committee should provide Elkharwily the opportunity
to respond to its rejection of the proctoring plan.
Nevertheless, the executive committee rejected the
recommendation, stating that the hearing panel incorrectly
focused on process instead of Elkharwily's competence.
The executive committee noted that Group Health did not have
adequate staff for nighttime proctoring and Franciscan did
not have an obligation to provide proctoring-it upheld its
decision to rescind Elkharwily's temporary privileges.
two years later, Elkharwily sued Franciscan in state court,
claiming that Franciscan discriminated against him, in
violation of the Washington Law Against Discrimination, RCW
49.60.030, the Rehabilitation Act, 29 U.S.C. §794, Title
VI of the Civil Rights Act of 1964, 42 U.S.C. §200(d),
and the False Claims Act, 31 U.S.C. §3729. See Alaa
Elkharwily, M.D. v. Franciscan Health System, No.
15-2-10437-9. Franciscan removed the case to this district.
See Elkharwily v Franciscan, Cause
No.15-cv-05579-RJB, Dkt. #1. Judge Bryan presided over a jury
trial. Ekharwily argued that Franciscan rescinded his
temporary privileges because of his bi-polar disorder,
asserting that Franciscan falsely documented in committee
minutes that Group Health did not have proctors available at
night. Judge Bryan instructed the jury that to prevail,
Elkharwily had the burden of proving that he was able to
perform the essential function of the nocturnist job, and
that his disability was a substantial factor in
Franciscan's decision to deny privileges. The jury found
in Franciscan's favor.
moved for a new trial, claiming that the verdict was the
result of false evidence. Dkt. #132. Specifically, Elkharwily
alleged that Franciscan Dr. deLeon lied during
Elkharwily's hearing panel when he stated that the
medical executive committee did not request or sanction
proctoring. Id. at 7. Additionally, Elkharwily
alleged that Franciscan Dr. Cammarano lied when he testified
at trial that Franciscan never requested daytime proctoring
for Elkharwily. Id. at 7-8. Judge Bryan denied the
motion, determining “[n]one of what Plaintiff presents
in support of his motion rises to the level of a proven lie .
. . that would justify a new trial.” Dkt. #139 at 3.
Ekharwily filed a motion for reconsideration, trying again to
convince Judge Bryan that the verdict was the product of
fraud. Elkharwily argued that Franciscan's witnesses and
attorney lied to the jury when they claimed that proctoring
at night is neither possible nor safe. Dkt. #140 at 7. Judge
Bryan denied the motion, ruling that Elkharwily had had the
opportunity during discovery, trial preparation, and
cross-exam to challenge the evidence. Dkt. #145.
to accept the Court's ruling, Ekharwily filed a third
post-trial motion seven days later. This time he sought
Relief from Judgment under Fed.R.Civ.P. 60(b) and (d),
insisting again that Franciscan's attorney committed
fraud on the court, alleging he redacted committee minutes to
purposely conceal the identity of possible nocturnist
Plaintiff has also discovered that Bob Thong, MD, was the 4th
nocturnist. . . . [A]mazing what a little chat with few
people could reveal . . . Drs. Pujol and [sic] Hasnain and
Thong would certainly have been on Defendant's
credentialing minutes in 2012, but their names were hidden
Dkt. #146 at 6.
that motion was pending, Elkharwily appealed to the Ninth
Circuit, and as a result, Judge Bryan struck the motion. Dkt.
#157. Elkharwily asked Judge Bryan to make an
“indicative ruling” (under Rule 62.1 and FRAP
12.1) despite the appeal, claiming that the motion raised
issues not on appeal. Dkt. #158. The Ninth Circuit remanded
the case for that limited purpose. Dkt. #160; Dkt. #174.
Judge Bryan denied the motion, concluding that “[t]his
allegation appears contrary to the evidence. . . .
Plaintiff's counsel was the only person to conclude,
without support, ‘that Dr. Pujol, Dr. Hasnain, and Dr.
Thong were available to proctor ...