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Naini v. King County Hospital District No. 2

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

December 20, 2019

ALI J. NAINI, Plaintiff,
v.
KING COUNTY PUBLIC HOSPITAL DISTRICT NO. 2 d/b/a EVERGREEN HOSPITAL MEDICAL CENTER et al., Defendants.

          ORDER

          JOHN C. COUGHENOUR, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff's motion for a temporary restraining order (Dkt. No. 111). Having considered the parties' briefing and the relevant record, the Court hereby DENIES the motion for the reasons explained herein.

         I. BACKGROUND

         On October 25, 2017, Plaintiff filed the original complaint in this case in King County Superior Court. (Dkt. No. 11-1.) The complaint alleged that Defendants were threatening to revoke Plaintiff's hospital privileges if he did not complete a competency assessment at the University of California in San Diego. (Id. at 3.) The complaint further alleged that Defendants imposed the competency assessment requirement “in retaliation for ethical concerns that [Plaintiff] ha[d] expressed regarding the care of his elderly ICU patients by some hospital-employed physicians, who regularly transfer those patients . . . to hospice care, where they die prematurely, when they could have survived to live meaningful lives.” (Id. at 5-6.) Although Defendants denied this allegation, they withdrew “without prejudice” the competency assessment requirement, thereby preserving Plaintiff's privileges. (See Dkt. No. 12-8 at 8.)

         Plaintiff's privileges did not remain secure for long. On January 15, 2019, Plaintiff was informed that his privileges at Evergreen had been suspended based largely on Plaintiff's purportedly substandard treatment of patients in 2018. (See Dkt. No. 28 at 28-36.) The Superior Court quickly undid the suspension, concluding that Defendants had likely denied Plaintiff due process and violated Evergreen's bylaws. (Dkt. No. 16-13 at 4.) The Superior Court also enjoined Defendants from “[t]aking any action that prevents, prohibits, or interferes with plaintiff's exercise of privileges and prerogatives as an active staff member of the EvergreenHealth Medical Center.” (Id.) The Superior Court did, however, allow Evergreen to “initiate a new process, with notice and opportunity to be heard, with respect to [Plaintiff's] application to renew his privileges.” (Id. at 6.)

         Following the Superior Court's ruling, Defendants continued to engage in peer review of Plaintiff's treatment of patients in 2018. (See Dkt. No. 115-5 at 2-3.) As part of that peer review process, Plaintiff met with Evergreen's Quality Peer Review Committee (QPRC) on October 30, 2019, and defended his actions in seven of the cases at issue. (Dkt. No. 111 at 6.) After Plaintiff left the meeting, the QPRC voted unanimously to recommend that Evergreen suspend Plaintiff's privileges. (Id.)

         One day later-but unrelated to the QPRC meeting-Plaintiff received a patient with a traumatic brain injury. (Id.) Plaintiff treated the patient for the first 28 hours that the patient was at Evergreen. (Id.) At that point, the patient was transferred to the care of Dr. Jeyamohan. (Id.) 36 hours later, the patient died. (Id.) The patient's death prompted Evergreen to investigate Plaintiff's care of the patient. (See Dkt. No. 86 at 3.) As part of that investigation, physicians and doctors met with Plaintiff on November 5, 2019. (Id.) Present at the meeting was Dr. Melissa Lee, a prominent defendant in this case. (Dkt. No. 111 at 7.) According to Evergreen, this meeting raised “serious, grave concerns about [Plaintiff's] ability to provide safe patient care at Evergreen.” (Dkt. No. 86 at 3.) Due to those concerns, Evergreen asked the Court to vacate the Superior Court's preliminary injunction so that Evergreen could invoke Article 16 of its bylaws and suspend Plaintiff's privileges pending an investigation. (Id. at 4-5, 10.) The Court granted Evergreen's request while noting that Plaintiff would be “free to challenge . . . any ultimate decision that Evergreen makes regarding Plaintiff's privileges.” (Dkt. No. 94 at 5.)

         On November 14, 2019, Dr. Jeffrey Tomlin, Evergreen's CEO, notified Plaintiff that Evergreen was summarily suspending his privileges based on his care of the patient who had recently died. (Dkt. No. 111 at 8.) Then, on December 11, 2019, Evergreen notified Plaintiff by letter that the Medical Executive Committee (“MEC”) had voted to approve the QPRC's recommendation to terminate his privileges. (Dkt. No. 114-4 at 2-4.) Although the QPRC purportedly based its recommendation on the 2018 cases, the letter stated that the MEC based its decision on both the 2018 cases and Plaintiff's treatment of the recently deceased patient. (Id.) The letter also stated that the summary suspension had been stayed because Plaintiff had “voluntarily decided” not to exercise his privileges while Evergreen investigated the patient's death.[1] (Id. at 3.) Finally, the letter notified Plaintiff that Evergreen planned to report Plaintiff's decision to the National Practitioner Data Bank (“NPDB”) on December 22, 2019. (Id. at 4.) Plaintiff now seeks to prevent Evergreen from making a report to the NPDB. (Dkt. No. 111 at 9.)

         II. DISCUSSION

         Congress enacted the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. §§ 11101-11152, to “restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance.” 42 U.S.C. § 11101(2). To accomplish that goal, Congress required that health care entities file reports to the NPDB whenever they suspend a physician's privileges for longer than 30 days or whenever they accept the surrender of a physician's privileges while the physician is under investigation. 42 U.S.C. § 11133(a)(1)(A). At the same time, Congress set up a process by which physicians could challenge reports that health care entities file to the NPDB. See 45 C.F.R. § 60.21. Here, Plaintiff asks the Court to interfere with this congressional scheme by prohibiting Evergreen from reporting the suspension of his privileges because a jury might ultimately conclude that there is no basis for the suspension. While such an intervention might be justified in extreme circumstances, Plaintiff has not shown that those circumstances are present here.

         A. Legal Standard

         Preliminary injunctive relief is “an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008). To obtain such relief, a party must “make a showing” on each of the following elements: (1) that the party will suffer irreparable harm in the absence of preliminary relief; (2) that the balance of equities tips in favor of granting an injunction; (3) that granting an injunction is in the public interest; and (4) that the party is likely to succeed on the merits. All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). What is required to “make a showing” on the fourth element depends on the strength of the party's showing on the first three elements. Id. Thus, if a party shows that it will suffer irreparable harm, that the balance of equities tips in its favor, and that granting an injunction is in the public interest, then the party need only show that there are “serious questions on the merits.” Id.

         B. Irreparable Harm

         Plaintiff would suffer irreparable harm if Evergreen reports him to the NPDB. Evergreen's report would declare that Plaintiff “is under investigation by [Evergreen] relating to possible incompetence or improper professional conduct.” 42 U.S.C. § 11133(a)(1)(B)(i). That report would be shared far and wide: every hospital at which Plaintiff holds privileges or might seek future privileges would be required to review the report whenever he applies for privileges and every two years thereafter. 42 U.S.C. § 11135(a); 45 C.F.R. § 60.17. Thus, to obtain privileges at another hospital, Plaintiff would have to overcome the stigma created by an investigation into his competence and professional conduct. That stigma is serious, and multiple courts have recognized that it constitutes irreparable harm. Rosario v. Weirton Med. Ctr., 2018 WL 1960952, slip op. at 2 (W.D. Pa. 2018); Walker v. Mem'l Health Sys. of East Texas, 231 F.Supp.3d 210, ...


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