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Peer v. West Shore Medical Center

United States District Court, W.D. Michigan, Southern Division

April 4, 2019

Peter Peer II, Plaintiff,
v.
West Shore Medical Center, et al. Defendants.

          OPINION

          PAUL L. MALONEY UNITED STATES DISTRICT JUDGE

         This matter is before the Court on cross-motions for summary judgment on Plaintiff's claim that West Shore Medical Center deprived him of his right to due process under 42 U.S.C. § 1983.[1]Because Dr. Peer received significantly more process than was required by the constitutional “floor, ” and because West Shore's decision was not arbitrary or capricious, Defendants' motion will be granted and Plaintiff's motion will be denied.[2]

         I.

         A. Dr. Peer Joins West Shore Medical Center

         Dr. Peter Peer used to be a lawyer, but now he's a radiologist. After leaving a practice in Midland, Michigan, he discovered that West Shore Medical Center (WSMC), in Manistee, Michigan was hiring and submitted a preliminary application for clinical privileges in early 2014.

         A few months later, WSMC reached an agreement in principle to contract with Peer's company, Integris LLC, for part-time radiology services. WSMC prepared a contract, and Dr. Peer formally applied for privileges. In his application, Dr. Peer answered that he was not “under the care of a physician.” The contract was executed, giving Dr. Peer medical privileges at WSMC for one year.

         WSMC management began hearing complaints about the care rendered by Dr. Peer soon after he began. In October of 2014, WSMC's Vice President of Patient Care Services met with him to review reports written by sonography technicians raising significant concerns with Dr. Peer's care, including five specific cases where the technicians had perceived Dr. Peer to pose a risk to the safety of patients.

         By March 2015, WSMC's CEO, James Barker, elected to terminate the agreement with Integris. He gave the contractually-required six-months' notice on April 7, 2015.[3] Barker says he was motivated to terminate the relationship after radiology technicians and other physicians expressed concerns over how Dr. Peer conducted certain procedures, and the general quality of his reporting.

         B. Reports by Clinicians Lead to Peer Review Committee Investigation

         While Barker was making his decision, additional complaints against Dr. Peer were referred to WSMC's Peer Review Committee (PRC). The PRC is a standing committee at WSMC, but it has no authority to discipline or otherwise act against a physician; the PRC instead reports its findings to the Medical Executive Committee, which can take further action, including initiating a formal Peer Review Action, which could lead to the loss of privileges or other sanctions.

         On April 6, 2015, Dr. Kutschke put the cases involving Dr. Peer onto the agenda for the PRC's next meeting. The evidence suggests Dr. Kutschke was not aware that Barker had already decided to terminate WSMC's contract with Dr. Peer.

         When the PRC met, it noted that there was no radiologist on the Committee, so the standard practice was to send the cases out for an external review. Accordingly, the PRC sent the cases referred to it-thirteen in number-to the Michigan Professional Review Organization (MPRO) to have an independent, board-certified radiologist for a blind “read-over” (meaning that the reviewing doctor would have no information regarding Plaintiff's actual reporting in those cases). Dr. Peer was notified of the external review on June 1, 2015 and the MPRO provided a report back on July 28, 2015. Ultimately, the MPRO's independent radiologist was only able to open eleven of the thirteen files because of technical issues, but his reads were “discordant” in seven of the eleven cases reviewed.

         Based on the independent review and the sheer No. of cases referred by clinicians- which WSMC asserts vastly outpaced that of its other practitioners-the PRC concluded that additional review of Dr. Peer's medical performance was warranted, so Dr. Kutschke met with WSMC's Medical Executive Committee to share the PRC's findings on September 3, 2015.

         C. WSMC Summarily Suspends Dr. Peer, Reinstates Him, Requests Second External Review

         After hearing from Dr. Kutschke at the September 3, 2015 meeting, the MEC voted unanimously to request a temporary suspension of Dr. Peer's privileges because of the alleged risk he presented to patient safety. Dr. Barry-the Section Chief responsible for the Radiology Department-sent a formal request to Barker the same day, noting that the MEC was concerned that Dr. Peer might present an imminent risk of harm to patients.

         Barker issued a letter of suspension the following day, although it was not effective until it was served on Dr. Peer four days later on September 8, 2015. The suspension was for fourteen days-the time allowed under WSMC's bylaws and federal law.

         Dr. Peer then met with the MEC with his counsel, Mark Rossman on September 16, 2015 to discuss his suspension. In this meeting, Attorney Rossman disclosed for the first time that Dr. Peer had bipolar disorder and had been undergoing treatment for it when he sought privileges at West Shore.

         The MEC met again five days later to discuss the status of Dr. Peer's suspension. Members of the MEC noted that the review done by the MPRO had not reached conclusions as to whether Dr. Peer had actually violated the standard of care in any of the cases reviewed. It was also noted that the Integris contract was set to expire in ten days. Therefore, the MEC recommended that the suspension not be continued. Dr. Peer was reinstated the following day.

         WSMC then engaged another independent, board-certified radiologist, Dr. Richard Chesbrough, to reach an opinion on whether Dr. Peer had violated the standard of care in any of the cases referred. The MEC provided the imaging from the 13 cases submitted to MPRO, and an additional 11 cases that had been submitted to the PRC after MPRO's review for a total of 24 cases. Dr. Chesbrough issued reports on October 12 and October 26, 2015. He concluded that Dr. Peer's performance had fallen below the standard of care in 6 of the 24 cases.

         D. WSMC Finds That Formal Peer Review Action Is Warranted

         The MEC reviewed the Chesbrough Report and concluded that there was sufficient evidence to warrant initiation of a formal Peer Review Action because of Dr. Peer's alleged deviation from the standard of care. On October 28, 2015, Dr. Barry formally requested that the MEC begin a Peer Review Action under the Medical Staff Bylaws on the six cases identified by Dr. Chesbrough. Dr Barry also requested that the Executive Committee investigate: (1) Dr. Peer's failure to disclose that he was under the care of a physician for his bipolar disorder in his initial application for privileges and (2) whether he had violated the Bylaws by “failing to be free of, or have under adequate control, any significant physical mental or behavioral impairment that interest with or presents a substantial probability of interfering with patient care . . . .”

         An Ad Hoc Committee was then established to investigate those subjects.[4] The Ad Hoc Committee conducted its investigation by interviewing employees within WSMC's radiology department, reviewing MPRO Report and Dr. Chesbrough's report, and the records of the PRC. The Ad Hoc Committee also allowed Dr. Peer to submit anything he wished, and he exercised his right by submitting voluminous documentation.

         The Ad Hoc Committee also intended to interview Dr. Peer. At one point, it agreed to allow him to respond to written questions instead of a live interview but later backtracked and insisted on a live interview. Dr. Peer then decided that he would not interview without his counsel present, but West Shore rejected this condition. No. interview ever took place.

         E. MEC Recommends Adverse Action based on Ad Hoc Committee Findings, Plaintiff Appeals to Independent Hearing Officer

         The Ad Hoc Committee issued a report on January 8, 2016, finding by a unanimous vote that Dr. Peer had violated the standard of care in each of the six incidents referred to it. The Ad Hoc Committee also concluded that Dr. Peer had violated WMSC's Bylaws by failing to disclose that he was under treatment by a physician for his bipolar disorder at the time he applied for medical privileges with WSMC and by “failing to be free of” his bipolar disorder.

         The MEC met on February 16 and March 4, 2016 to consider the Ad Hoc Committee report. During the second meeting, the MEC held a video conference call with Dr. Chesbrough, where members of the MEC questioned the basis for his opinions as to Dr. Peer's medical care in the pertinent cases.

         At the conclusion of the meeting, the MEC voted unanimously to recommend to the Board of Trustees that Dr. Peer's pending application for renewed staff privileges be approved, contingent upon him completing 90 days of proctoring by an independent, board-certified radiologist. The MEC also recommended a one-level reduction in Dr. Peers rank-from Associate to Affiliate-for his failure to disclose that he was currently under the care of a physician. (The Application for Privileges that Dr. Peer signed warned that the failure to disclose any information requested could result in a reduction in rank.) Importantly, the MEC took no action on the Ad Hoc Committee's finding that Dr. Peer had “failed to be free of” his bipolar disorder. No. adverse action was ever taken on this finding.

         The MEC notified Dr. Peer of its recommendations and explained his right to request a hearing before an independent hearing officer in accordance with federal law and Article XIV of the Medical Staff Bylaws. Dr. Peer did so.

         F. Independent Hearing Officer Conducts Hearing, Agrees with the MEC

         WSMC selected Warner Norcross Judd attorney Alan Rogalski to act as the hearing officer after finding that he was qualified and had no conflict of interest. Rogalski performed his own conflict check and accepted the offer. Dr. Peer has never objected to Rogalski serving as the hearing officer, although his due process argument relies in part on a theory that Rogalski “rubber-stamped” the findings by the Ad Hoc Committee and MEC.

         Dr. Peer, WSMC, and Rogalski held a pre-hearing conference on April 19 to address procedural and structural elements of the impending hearing, which was set for July but later rescheduled for September upon request by Dr. Peer. During this time, the parties engaged in discovery including the exchange of documents and taking of depositions.

         The hearing was eventually held from September 12-14, 2016. Dr. Peer was represented by his counsel, Mark Rossman. WSMC called Drs. Barry, Chesbrough, Joanette, and Kutschke. Plaintiff called his expert, Dr. Bude, and testified on his own behalf. The parties also stipulated to the admission of six exhibits including the documents evaluated in the Peer Review, the diagnostic images Chesbrough had reviewed, and the WSMC bylaws. Plaintiff submitted fourteen additional exhibits including his CV and other credential-based records, as well as Dr. Bude's CV and Bude's opinions with respect to the six patients at issue. The hearing was also transcribed by a court reporter. After the hearing, the parties submitted post-hearing briefs and cross-replies in November 2016.

         Rogalski issued a 63-page Decision and Recommendation on January 3, 2017. He began with a review of the facts and circumstances leading up to the hearing, and then proceeded to thoroughly summarize the evidence as to each of the six patients for whom Dr. Peer was alleged to have fallen below the standard of care. In each case, Rogalski considered the report of Dr. Chesbrough, the report of the MPRO radiologist (where applicable), and the live testimony. Rogalski found that the evidence supported the MEC's determination that, in all six cases, Dr. Peer had fallen below the standard of care and that the evidence demonstrated that Plaintiff's lapse adversely affected or could have adversely affected the health and welfare of each patient.

         Rogalski also reviewed the circumstances of Dr. Peer's non-disclosure of his bipolar disorder. Dr. Peer apparently argued in his post-trial brief that he was not required to disclose as he was not “under the care of a physician” because a nurse practitioner would write his prescriptions. Rogalski found the argument contradicted by Dr. Peer's own testimony that he was seen by a physician for an annual exam related to his bipolar disorder. Rogalski concluded that Dr. Peer had an obligation under the Medical Bylaws to disclose his condition, and that he had “opened the door” to questions about his condition, treatment, and any possible interference with his ability to practice by his late disclosure to the MEC.

         A little more than two weeks after Rogalski issued his report, West Shore's Board of Trustees voted unanimously to adopt the Medical Executive Committee's recommendations. Accordingly, West ...


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