United States District Court, W.D. Washington, Seattle
ALI J. NAINI, Plaintiff,
KING COUNTY HOSPITAL DISTRICT NO. 2 et al., Defendants.
C. Coughenour United States District Judge.
matter comes before the Court on Defendants' partial
motion to dismiss (Dkt. No. 32). Having considered the
parties' briefing and the relevant record, the Court
finds oral argument unnecessary and hereby GRANTS the motion
in part and DENIES the motion in part for the reasons
early 2012, Plaintiff Ali J. Naini, a neurosurgeon who works
at Defendant King County Hospital District No. 2
(“Evergreen”), became concerned that physicians
in Evergreen's intensive care unit were improperly
advising his elderly patients to consent to Do Not
Resuscitate designations or transfers to end-of-life
palliative hospice care without his knowledge. (See
Id. ¶¶ 32-34.) Plaintiff raised his concerns
to Evergreen's administration, telling the hospital that
these patients could be saved with more aggressive treatment.
(See Id. ¶ 45.) According to Plaintiff, his
concerns were not taken seriously. (See Id. ¶
45.) Instead, specific employees at Evergreen purportedly
responded by campaigning to have the hospital revoke
Plaintiff's medical staff privileges. (Id.
campaign against Plaintiff was allegedly spearheaded by
Defendant Melissa D. Lee, M.D., the medical director of
Evergreen's ICU and the director of the hospital's
Quality Assurance Committee. (See Id. ¶¶
24, 46-60.) In 2013, Dr. Lee urged Evergreen to approve a set
of “Neurosurgical Co-Management Guidelines” that
would limit Plaintiff's authority over his patients in
the ICU. (Id. ¶ 57.) Dr. Lee's efforts
proved successful, and Evergreen ultimately adopted the
guidelines on January 5, 2016. (Id. ¶ 59.)
same year, a conflict arose over the treatment of two of
Plaintiff's patients. (Id. ¶ 67.) Plaintiff
expressed his concerns regarding those patients'
treatment to Defendant Robert E. Geise, M.D., the
then-president of Evergreen's medical staff.
(Id. ¶ 68.) At the same time, Dr. Lee contacted
Dr. Geise and asserted that Plaintiff was breaking
Evergreen's new co-management policy. (Id.
¶ 71.) After hearing from Dr. Lee, Dr. Geise met with
Defendant James O'Callaghan, M.D., and Dr. Scott Burks on
June 23, 2016, to create a “to do” list for
Plaintiff. (Id. ¶ 73.) Dr. Geise then held a
meeting with Dr. Lee and other ICU staff. (Id.
¶ 76.) At the meeting, Dr. Lee urged Evergreen's
administration to act against Plaintiff. (Id. ¶
77.) Dr. Geise assured Dr. Lee that he had a “plan for
formal review.” (Id.)
after the meeting, Dr. Geise initiated an ad hoc
process that, according to Plaintiff, was intended to justify
a Focused Professional Practice Examination-Concern period
for Plaintiff. (Id.) As part of that process,
Dr. Geise appointed Dr. Sean Kincaid as head of a committee
to investigate Plaintiff's patient care. (Id.
¶ 78.) Dr. Geise also instructed two unidentified
Evergreen neurosurgeons to perform internal reviews of the
medical records of three patients that Plaintiff admitted to
the ICU in the spring of 2016. (Id. ¶ 80.) And
when that internal review concluded that Plaintiff had given
adequate care to those three patients, Dr. Geise commissioned
an external reviewer to assess Plaintiff's care in each
case. (Id. ¶¶ 91-92.) Although the
reviewer issued a report that was generally favorable towards
Plaintiff's clinical competency, the report raised issues
relating to documentation and co-management policies.
(Id. ¶¶ 92-96.) Given these purported
issues, Defendants subsequently informed Plaintiff on
September 12, 2016, that they had created an FPPE-C requiring
Plaintiff to complete tasks relating to his communication
with colleagues and staff. (Id. ¶ 98.)
April 3, 2017, Dr. Geise sent a letter demanding that
Plaintiff also complete a competency assessment at the
University of California in San Diego. (Id. ¶
102.) When Plaintiff refused to undergo the assessment, Dr.
Geise sent Plaintiff another letter on September 27, 2017,
stating that if Plaintiff did not go to California,
“the Medical Staff will consider your non-compliance as
a voluntary resignation.” (Id. ¶ 118.)
Dr. Geise's second letter prompted Plaintiff to file the
initial complaint in this case in King County Superior Court,
requesting a temporary restraining order preventing Evergreen
from terminating his privileges. (Id. ¶ 118.)
In response to Plaintiff's request, Defendants withdrew
the assessment requirement. (Id. ¶ 119.)
withdrawing the assessment requirement, Evergreen implemented
a “Corrective Action Plan” involving an ongoing
review of Plaintiff's cases in 2018. (Id. ¶
122.) That review identified potential issues in three cases,
which were then sent for review to the Credentials Committee.
(Id. ¶ 130.) The Credentials Committee met on
January 9, 2019, and voted-without hearing from Plaintiff-to
not renew his privileges. (Id. ¶¶ 131,
135.) Following the Credential Committee's decision, Dr.
O'Callaghan, who by that time had become president of
Evergreen's medical staff, authored a report purporting
to summarize the basis for the decision. (Id. ¶
January 14, 2019, the Medical Executive Committee met and
accepted the Credential Committee's recommendation to
suspend Plaintiff's privileges. (Id. ¶
165.) One day later, Evergreen's Board of Commissioners
also held a meeting, which Dr. O'Callaghan attended.
(Id. ¶ 168.) Once the meeting concluded, Dr.
O'Callaghan told Dr. Geise that the Board had decided to
not renew Plaintiff's privileges. (Id. ¶
169.) Dr. O'Callaghan similarly told Plaintiff in a
telephone conversation that “the Board upheld the
decision of MEC to not recommend re-credentialing” and
that Plaintiff's privileges were therefore terminated.
(Id. ¶ 170.) But Plaintiff alleges that Dr.
O'Callaghan was incorrect: “the Board had not
approved anything.” (Id. ¶ 181.)
though “[Plaintiff's] privileges had never been
officially rescinded, ” (id. ¶ 188),
Defendants sent a broadcast email on January 17, 2019,
“claiming that the Board had approved [Plaintiff's]
‘resignation.'” (Id. ¶ 175.)
The email was sent to at least 200 hospital personnel, and
news of Plaintiff's alleged resignation circulated
quickly throughout the medical community. (Id.
February 1, 2019, the Superior Court vacated the suspension
of Plaintiff's privileges. (Id. ¶ 186.)
Plaintiff subsequently amended his complaint to add nine
claims for damages against Dr. Geise, Dr. O'Callaghan,
Dr. Lee, EvergreenHealth Medical Center Medical Staff,
Evergreen. (See Id. ¶¶ 192-254.) Because
Plaintiff's amended complaint included federal claims
under 42 U.S.C. §§ 1983 and 1985(3), Defendants
removed the case to this Court. (Dkt. No. 2.) Following
removal, Defendants filed the instant partial motion to
dismiss. (Dkt. No. 32.)
Federal Rule of Civil Procedure 12(b)(6) Legal
A defendant may move for dismissal when a plaintiff
“fails to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009). A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id. at 678. Although the
court must accept as true a complaint's well-pleaded
facts, conclusory allegations of law and unwarranted
inferences will not defeat an otherwise proper Rule 12(b)(6)
motion. Vasquez v. L.A. Cty., 487 F.3d 1246, 1249
(9th Cir. 2007); Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001). The plaintiff is obligated
to provide grounds for their entitlement to relief that
amount to more than labels and conclusions or a formulaic
recitation of the elements of a cause of action. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).
“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations,' but it
demands more than an unadorned,
Iqbal, 556 U.S. at 678. Dismissal under Rule
12(b)(6) “can [also] be based on the lack of a
cognizable legal theory.” Balistreri v. Pacifica
Police Dep 't, 901 F.2d 696, 699 (9th Cir. 1988).
Exclusivity of Wash. Rev. Code § 7.71.030
argue that Wash. Rev. Code § 7.71.030's exclusive
remedies provision requires that this Court dismiss
Plaintiffs various state-law claims. (See Dkt. No.
32 at 7-8). Plaintiff responds with three reasons why the
provision does not preclude those claims. First, Plaintiff
contends that federal law, not state law, governs this case.
(See Dkt. No. 37 at 9-12). Second, Plaintiff claims
that even if state law applies, Defendants cannot avail
themselves of Wash. Rev. Code § 7.71.030's
protections because Defendants did not comply with the
requirements of Wash. Rev. Code § 7.71.050(2). (See
Id. at 12.) Finally, Plaintiff argues that some of his
claims are unrelated to peer review. (See Id. at 9.)
The Court concludes that Wash. Rev. Code § 7.71.030
provides the exclusive state-law remedy in this case and
requires that the Court dismiss Plaintiffs state-law claims.
The Law of the Case
initial matter, the Court must determine whether the Superior
Court already decided that Wash. Rev. Code § 7.71.030
precludes Plaintiffs state-law claims. Defendants contend
that on February 1, 2019, the Superior Court
“unequivocally ruled” that the provision bars
those claims. (See Dkt. No. 32 at 8.) This
prior ruling, Defendants argue, is now the “law of the
case” and precludes the Court from considering whether
Wash Rev. Code § 7.71.030 bars Plaintiff's state-law
claims. (See id.) Plaintiff disagrees, arguing that
the Superior Court never had the opportunity to consider the
issue because Plaintiff did not move to amend his complaint
to add state-law claims for damages until May 28, 2019.
(See Dkt. No. 37 at 7.) The Court agrees with
the “law of the case” doctrine, “a court is
generally precluded from reconsidering an issue that has
already been decided by the same court, or a higher court in
the identical case.” See United States v.
Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (quoting
Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993)).
The doctrine applies to state court rulings made prior to a
case being removed to federal court. See Payne for Hicks
v. Churchich, 161 F.3d 1030, 1037 (7th Cir. 1998)
(citing Granny Goose Foods, Inc. v. Brotherhood of
Teamsters & Auto Truck Drivers Local No. 70, 415
U.S. 423, 435-36 (1974)). However, “[f]or the doctrine
to apply, the issue in question must have been decided
explicitly or by necessary implication in [the] previous
disposition.” Milgard Tempering, Inc. v. Selas
Corp., 902 F.2d 703, 715 (9th Cir. 1990). Consequently,
“[a] significant corollary of the doctrine is that
dicta have no preclusive effect.” Id.
the Superior Court neither explicitly nor implicitly decided
whether Wash. Rev. Code § 7.71.030 bars the state-law
claims now before the Court. True, the Superior Court did say
at a hearing on February 1, 2019, that the provision
“is the exclusive remedy in any lawsuit by a healthcare
provider for any action taken by a professional review body
of health-care providers.” (See Dkt. No. 32-1
at 53-54.) But that statement merely repeats verbatim the
language of Wash. Rev. Code § 7.71.030(1); it cannot be
construed as a ruling on Plaintiff's interpretation of
the word “applies” in Wash. Rev. Code §
7.71.030(1), his argument about how that provision interacts
with Wash. Rev. Code § 7.71.050(2), or his assertion
that some of his claims do not relate to Defendants'
professional review action. See Rebel Oil Co., Inc. v.
Atl. Richfield Co., 146 F.3d 1088, 1094 (9th Cir. 1998)
(declining to apply the law of the case doctrine because
prior judicial statements were “better read as
descriptions rather than dispositions of Rebel's
claims”); (Dkt. No. 38 at 8-13). None of those
arguments were before the Superior Court on February 1
because Plaintiff did not amend his complaint to add
additional claims for damages until several months later.
(See Dkt. No. 28.) Moreover, if the Superior Court
had intended to preclude future claims for damages, then it
would not have made a point to dismiss Plaintiff's claim
under the Washington Consumer Protection Act, Wash. Rev. Code
§ 19.86.060, “without prejudice to any breach of
contract or similar claim he may have.” (See
Dkt. No. 32-1 at 52.) The Superior Court's decision to
leave open the possibility of future claims for damages shows
how up until the February 1 hearing, “[Plaintiff's
privileges] ha[d] always been the subject of [the]
litigation.” (See Id. at 16-17.)
assuming that the Superior Court did intend to pass judgment
on the meaning of Wash. Rev. Code § 7.71.030, the
Superior Court's statement would be dicta. When the
Superior Court held the February 1 hearing, Plaintiff had
raised only a single damages claim-a claim relating to
Defendants' decision to reduce Plaintiff's
involvement in emergency room call coverage. (See
Dkt. No. 13-8 at 28, 34.) In dismissing that claim, the
Superior Court did not rely on Wash. Rev. Code §
7.71.030. (See Dkt. No. 32-1 at 33.) Instead, the
Superior Court concluded that Defendant's decision did
not impact the public interest within the meaning of the CPA.
(Id.) It would therefore have been unnecessary for
the Superior Court to decide whether Wash. Rev. Code §
7.71.030 might impede Plaintiff's ability to bring claims
for damages relating to the suspension of his privileges.
Accordingly, the Court declines to treat any such statements
as the “law of the case” and will independently
evaluate whether and how Wash. Rev. Code § 7.71.030
applies here. See Rebel Oil, 146 F.3d at 1093-94.
The Applicability of Wash. Rev. Code § 7.71.030
provides two layers of legal protection for persons who
participate in a professional peer review action. The first
layer comes from federal law. See 42 U.S.C. §
11111(a); Wash. Rev. Code § 7.71.020. Under that layer
of protection, persons who participate in a
“professional review action . . . shall not be liable
in damages . . . with respect to the action.” 42 U.S.C.
§ 11111(a)(1). This “peer review immunity”
applies only if (1) the professional review action was based
on a physician's competence or professional conduct and
(2) the action meets four requirements listed in 42 U.S.C.
§ 11112(a). See 42 U.S.C. §§
11111(a)(1) (limiting damages “[i]f a professional
review action (as defined in section 11151(9) of this title)
. . . meets all the standards specified in section 11112(a)
of this title”), 11151(9) (“The term
‘professional review action' means an action . . .
which is based on the competence or professional conduct of
an individual physician.”). If peer review immunity
does not apply, then Wash. Rev. Code § 7.71.030 offers a
second layer of protection by limiting the state-law remedies
that a health care provider can recover “in any lawsuit
. . . for any action taken by a professional peer review body
of health care providers.” See Wash. Rev. Code
§ 7.71.030(1). Those remedies are limited “to
appropriate injunctive relief, and damages shall be allowed
only for lost earnings directly attributable to the action
taken by the professional peer review body, incurred between
the date of such action and the date the action is
functionally reversed by the professional peer review
body.” See Id. § 7.71.030(2).
Rev. Code § 7.71.030 did not always offer such generous
protections. Originally, 42 U.S.C. § 11111(a) and Wash.
Rev. Code § 7.71.030 covered different types of
professional review actions, with the former covering actions
“based on the competence or professional conduct of an
individual physician, ” see 42 U.S.C. §
11151(9), and the latter covering actions “based on
matters not related to the competence or
professional conduct of a health care provider, ”
see 1987 Wash. Sess. Laws 969 (emphasis added). But
in 2013, the Washington Legislature extended Wash. Rev. Code
§ 7.71.030's protections to actions related to a
physician's competence or professional conduct.
See 2013 Wash. Sess. Laws 1716. In doing so, the
Legislature added language stating that Wash. Rev. Code
§ 7.71.030 provides the exclusive remedy in lawsuits
relating to a professional review action only “[i]f the
limitation on damages under RCW 7.71.020 and [42 U.S.C.
§ 11111(a)] does not apply.” See id.
claims that Wash. Rev. Code § 7.71.030's exclusivity
provision is inapplicable in this case because 42 U.S.C.
§ 11111(a) “applies.” (See Dkt. No.
37 at 9-12.) To determine the meaning of a statutory term, a
court must first look to the statute's text. See King
v. Burwell, 135 S.Ct. 2480, 2489 (2015). “If the
statutory language is plain, [a court] must enforce it
according to its terms.” Id. (citing Hardt
v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251
(2010)). Often, however, the “meaning-or ambiguity-of
certain words or phrases may only become evident when placed
in context.” FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 133 (2000). Consequently, courts
must read words “in their context and with a view to
their place in the overall statutory scheme.”
Id. If a statute's language is ambiguous even
when read in context, then a court may look to legislative
history to shed further light on the statute's meaning.
See Wis. Pub. Intervenor v. Mortier, 501 U.S. 597,
611 n.4 (1991).
case, Plaintiff's definition of “apply” is
too broad. Under that definition, 42 U.S.C. § 11111(a)
“applies”-and Wash. Rev. Code § 7.71.030
does not-whenever a professional review board takes an action
based on a physician's competence or professional
conduct. (See Dkt. No. 37 at 10.) This definition
would render the 2013 amendment a nullity by making Wash.
Rev. Code § 7.71.030 protect defendants only when a
professional review board acted based on something other than
a physician's competence or professional conduct.
Plaintiff's definition is therefore contrary to the
common-sense rule that ...