Couch v. Board of Trustees of Memorial Hospital of Carbon County

587 F.3d 1223, 2009 WL 3821846
CourtCourt of Appeals for the Tenth Circuit
DecidedDecember 3, 2009
Docket08-8001
StatusPublished
Cited by61 cases

This text of 587 F.3d 1223 (Couch v. Board of Trustees of Memorial Hospital of Carbon County) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Couch v. Board of Trustees of Memorial Hospital of Carbon County, 587 F.3d 1223, 2009 WL 3821846 (10th Cir. 2009).

Opinions

EBEL, Circuit Judge.

Dr. Marvin Wayne Couch appeals from summary judgment entered in favor of defendants, Memorial Hospital of Carbon County (“MHCC”), a small rural hospital where he has staff privileges, the hospital’s chief administrator, and six of the ten other physicians who have privileges at MHCC. Dr. Couch brought this action, pursuant to 42 U.S.C. § 1983, to remedy an alleged deprivation of his First Amendment right of free speech caused by a “campaign of retaliation” he allegedly had to endure as a result of speaking out about substance abuse at MHCC. The district court concluded that Dr. Couch’s claims failed because he could not establish that [1229]*1229the defendants actions would chill speech nor could he establish that the defendants’ actions were substantially motivated by his speech. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM for the reasons that follow.

I. BACKGROUND

A. Factual Background

Dr. Marvin Wayne Couch, II, M.D., is a family doctor/obstetrician in Rawlins, Wyoming. A graduate of the University of Wyoming School of Medicine, Dr. Couch moved to the Rawlins area in 1997 when he was recruited to join MHCC as part of an effort to build the hospital’s obstetrics practice. Soon after Dr. Couch joined MHCC, interpersonal conflicts began to develop between Dr. Couch and Dr. David Cesko, M.D., another family doctor and obstetrician who joined MHCC about the same time as Dr. Couch. Dr. Couch began to have conflicts with medical staff as well.1 Time, however, did not heal Dr. Couch’s relationships with Dr. Cesko or hospital staff.

By the summer of 2001, Dr. Couch had begun to suspect that Dr. Cesko and other staff physicians at MHCC were using alcohol and illegal drugs. Dr. Couch shared his concerns with the hospital’s chief executive, Patsy Carter, and after he found her unresponsive, reported these concerns to the Wyoming Board of Medicine (“WBM”), a state agency that governs licensing of medical doctors. To address these concerns, Dr. Couch also approached the hospital’s Board of Trustees about changing the hospital’s testing policy from a for-cause drug and alcohol testing policy to a random testing policy. The Board subsequently discussed a random testing policy over several monthly Board meetings in the winter and spring of 2002, but ultimately concluded not to implement any changes to the drug and alcohol testing policy. Dr. Couch, however, continued to raise concerns about substance abuse at MHCC, and even filed a request with the WBM, in November 2002, to drug test a fellow physician, Dr. Scott Thomas, and to investigate whether Dr. Thomas had mistreated patients as a result of a drug impairment. Dr. Couch also continued to advocate for random drug and alcohol testing, for instance, when he delivered a presentation to the Wyoming Healthcare Commission at a September 2003 meeting, endorsing “a policy for the random testing for drugs and alcohol for physicians and other health care providers.” (Aplt.App. 1277, 1289.)

In 2006, Dr. Couch subsequently brought this action pursuant to 42 U.S.C. § 1983, alleging that the hospital and various individual defendants, who were on hospital committees, instituted a “campaign” of retaliation against him for his advocacy of a drug and alcohol testing, in violation of his First Amendment right to free speech. The alleged “campaign” of retaliation included his non-reappointment to a seat on the Medical Staff Performance Assessment and Improvement Committee; several hospital investigations into disrup[1230]*1230tive conduct by Dr. Couch; alleged patient mistreatment; billing and Medicare fraud; and the hospital’s subsequent implementation of the corrective actions recommended by those investigations. We will briefly detail the hospital’s investigations involving Dr. Couch and the hospital’s corrective action below, which was thoroughly recounted by the district court in its order granting summary judgment for the defendants.

1. 2001 Rardin Investigation

The first alleged incidents of retaliation arose in October 2001, when MHCC’s counsel, at the direction of the hospital’s Board of Trustees (the “Board”), solicited Thomas Rardin, a private investigator, to investigate the relationship between Drs. Couch and Cesko. As Rardin noted in his report of the investigation, the Board was concerned that the acrimonious relationship might “adversely affect[ ]” employees and the community. (Aplt.App. 471.) After interviewing numerous staff members, and the doctors themselves, Rardin concluded both doctors had engaged in inappropriate conduct towards each other.2 Rardin’s report recommended that the hospital should send a letter to both doctors “telling them to stop and either get along or maturely tolerate each other,” and discussed the possibility of “psychological testing.” (Id. at 421.)

MHCC’s Chairman of the Board of Trustees, Judy Merrill, adopted Rardin’s recommendation and sent Dr. Couch a letter, which acknowledged that the report uncovered disruptive conduct, and that clarified hospital procedures, instructed him not to ask people about Dr. Cesko’s personal life and not to make disparaging comments about Dr. Cesko, and to follow the established chain of command with regards to all complaints about hospital staff. Ms. Merrill sent a similar letter to Dr. Cesko. Dr. Couch considered that the letter only “asked [him] to do [] things [he] was already doing.” (Id. at 981.)

2. Disruptive Conduct Investigation

As discussed above, Dr. Couch filed a complaint with the WBM in November 2002, alleging Dr. Thomas made two critical errors, and requested “that the Board of Medicine require a hair drug test of Dr. Thomas----” (Aplt-App. 558-59.) On April 14, 2003, the WBM informed Dr. Couch by letter that the Board’s “investigation of this matter has disclosed no evidence that Dr. Thomas was either impaired and/or incompetent as alleged in your complaint.” (Id. at 563.) Following the WBM’s finding that Dr. Couch’s complaint against Dr. Thomas and his request for Dr. Thomas to undergo drug testing were unsubstantiated, Dr. Thomas, on May 20, 2003, filed a “disruptive conduct report”3 with MHCC’s Executive Committee,4 complaining that [1231]*1231Dr. Couch reported Dr. Thomas to the WBM without first discussing those concerns with Dr. Thomas and following internal review procedures.5 In response to the complaint, on June 19, 2003, Dr. Duane Abels, the hospital’s chief of staff, established an ad hoc committee consisting of Drs. Archie Kirsch and Charles Young to investigate Dr. Thomas’s complaint. In turn, the ad hoc committee hired Thomas Rardin to investigate the matter.

As a result of his investigation, Rardin prepared a report detailing the substance of his interviews with the doctors and medical staff,6 which the ad hoc committee relied on in its “findings of investigation,” dated September 18, 2003, concluding that “the method Dr. Couch chose to handle his complaint about Dr. Thomas’ care ...

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Bluebook (online)
587 F.3d 1223, 2009 WL 3821846, Counsel Stack Legal Research, https://law.counselstack.com/opinion/couch-v-board-of-trustees-of-memorial-hospital-of-carbon-county-ca10-2009.