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Elkharwily v. Franciscan Health System

United States District Court, W.D. Washington, Tacoma

February 2, 2018

FRANCISCAN HEALTH SYSTEM, a Washington non-profit corporation, Defendant.

          ORDER [DKTS. #12, #13, #28]


         THIS 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.

         I. BACKGROUND

         Elkharwily 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.

         Franciscan's 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 The executive committee rescinded Elkharwily's temporary privileges, and requested that Franciscan Dr.'s deLeon and Haftel interview Elkharwily about the report.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.

         The 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.

         Elkharwily 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.

         Over 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.[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.

         Ekharwily 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.

         Undeterred, 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.

         Unwilling 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 proctors:

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 from Plaintiff.

Dkt. #146 at 6.

         While 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 ...

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