United States District Court, W.D. Michigan, Southern Division
L. MALONEY UNITED STATES DISTRICT JUDGE
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.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
Peer Joins West Shore Medical Center
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.
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.
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.
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. 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.
Reports by Clinicians Lead to Peer Review Committee
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.
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.
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
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.
Summarily Suspends Dr. Peer, Reinstates Him, Requests Second
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.
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
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.
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.
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
Finds That Formal Peer Review Action Is Warranted
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 . . . .”
Hoc Committee was then established to investigate those
subjects. 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
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.
Recommends Adverse Action based on Ad Hoc Committee Findings,
Plaintiff Appeals to Independent Hearing Officer
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.
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.
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.
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.
Independent Hearing Officer Conducts Hearing, Agrees with the
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.
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.
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
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.
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.
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 ...