Fobbs v. Holy Cross Health System Corp.

29 F.3d 1439, 94 Daily Journal DAR 10079, 94 Cal. Daily Op. Serv. 5489, 1994 U.S. App. LEXIS 17490, 65 Empl. Prac. Dec. (CCH) 43,369, 65 Fair Empl. Prac. Cas. (BNA) 750, 1994 WL 372691
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 19, 1994
DocketNo. 92-15852
StatusPublished
Cited by17 cases

This text of 29 F.3d 1439 (Fobbs v. Holy Cross Health System Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fobbs v. Holy Cross Health System Corp., 29 F.3d 1439, 94 Daily Journal DAR 10079, 94 Cal. Daily Op. Serv. 5489, 1994 U.S. App. LEXIS 17490, 65 Empl. Prac. Dec. (CCH) 43,369, 65 Fair Empl. Prac. Cas. (BNA) 750, 1994 WL 372691 (9th Cir. 1994).

Opinion

FERGUSON, Circuit Judge:

Plaintiff Denard M. Fobbs, M.D. seeks judgment against defendant St. Agnes Hospital and Medical Center (“St. Agnes” or “hospital”) and various individual physician defendants who were on the Medical Staff and served on various peer review committees at the hospital for the summary suspension of his staff privileges.

In 1987, Dr. Fobbs, an African American, was granted privileges by the hospital to perform intra-abdominal laser surgery as a member of the Department of Obstetrics-Gynecology/Perinatology. After the hospital summarily suspended these privileges on September 29, 1989, Dr. Fobbs filed a complaint against defendant Holy Cross Health Systems Corporation, its subsidiary Saint Agnes Hospital, and twenty-seven individual defendant physicians.

After a series of motions and amendments, Dr. Fobbs’ second amended complaint consisted of various allegations involving civil rights and antitrust violations.

This appeal involves the following specific claims in that complaint: the first claim pursuant to the Sherman Antitrust Act, 15 U.S.C. § 2; the second claim pursuant to 42 U.S.C. § 1981; the third claim pursuant to Title VI of the Civil Rights Act, 42 U.S.C. § 2000d, against Saint Agnes Hospital only; and the fourth claim pursuant to 42 U.S.C. § 1985(3).

On August 20, 1990, the district court granted the physician defendants’ motion to dismiss the § 1985 claim and granted the hospital’s motion to dismiss the Title VI claim.

On November 25, 1990, the court granted physician defendants’ motion for partial summary judgment as to the § 1981 claim on the basis that it was time-barred.

On March 17,1992, the court granted summary judgment in favor of all defendants on the Sherman Antitrust Act claim, holding that they were immune from federal antitrust liability by virtue of the provisions of the Health Care Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C. § 11101, et seq.

I. DISCUSSION

A. Sherman Antitrust Act Claim

The district court has published its order granting defendants’ motion for summary judgment on the Sherman Antitrust Act claim. Fobbs v. Holy Cross Health System Corp., et al., 789 F.Supp. 1054 (E.D.Cal.1992).

We affirm the district court’s order with the following addition to its opinion, which affects section V.A.3. set forth on pages 1067 and 1068 relating to whether the summary monitoring restraints prior to any notice or hearing violated the HCQIA.

A review committee may immediately suspend or restrict clinical privileges “subject to subsequent notice and hearing or other adequate procedures, where the failure to take such an action may result in an imminent danger to the health of any individual.” [1443]*144342 U.S.C. § 11112(c)(2). We agree that the summary restrictions of Dr. Fobbs’ clinical privileges by means of the monitoring requirements meet the requirements of § 11112(c)(2).

Dr. Fobbs was the only physician in the Central Valley of California at the time performing laser surgery in obstetrics cases. After he performed a few such surgeries, questions were raised by the defendants as to possible irregularities with respect to three cases. The Supervisory Committee at the hospital invited Dr. Fobbs to' discuss these cases. As a result of this meeting, copies of the ease charts were sent for analysis and review to Dr. Donald R. Ostergard, Professor of Obstetrics and Gynecology at the University of California, Irvine, who was a former teacher of Dr. Fobbs.

Dr. Ostergard submitted a response in which he concluded that there were difficulties relating to responsibilities of both Dr. Fobbs and hospital employees. In the first case, there was improper functioning of the laser equipment. In that case, Dr. Oster-gard criticized the hospital nursing staff for failing to calibrate the laser equipment before the surgery and failing to notify Dr. Fobbs of the equipment malfunction. He also concluded, however, that Dr. Fobbs used poor judgment in leaving the laser patient under anesthesia to deliver another obstetrical patient. In the second case, he concluded that Dr. Fobbs performed an unnecessary dilatation and curettage. Regarding the third patient, Dr. Ostergard reported that there was a lack of judgment on Dr. Fobbs’ part in performing vaporization of endome-triosis. Finally, he reported that these patients did not have a written or dictated history and physical examination on their charts at the time of the laser procedures.

Shortly after Dr. Ostergard’s report was received, Dr. Fobbs wrote to the hospital, setting forth a conversation he had with Dr. Ostergard and claiming that he had done no wrong. The Supervisory Committee recommended to the Medical Executive Committee (“MEC”) that monitoring be imposed. The following monitoring restrictions were then summarily imposed:

(1) Plaintiff was to have a second opinion on every admission to St. Agnes Medical Center;
(2) This was to include a history and physical examination by the monitor;
(3) On any surgical procedures, the monitor was to be present during the operation;
(4) The follow-up care of the patient was to be shared with the monitor; and
(5) The monitors were to be members of the Ob-Gyn/Perinatology Supervisory Committee.

Dr. Fobbs contends that the statute requires that there be “imminent danger to the health of any individual” before there may be a summary restriction. However, the statute does not require imminent danger to exist before a summary restraint is imposed. It only requires that the danger may result if the restraint is not imposed.

The record of the problems caused by Dr. Fobbs clearly supports the conclusion of the MEC that a summary restriction be taken to avoid imminent danger. Dr. Fobbs was not suspended, his practice was not limited, and his access to the hospital was not limited. The monitoring conditions were necessary in light of the past history of Dr. Fobbs and his laser surgery. The defendants had ample medical justification to take the steps. The district court correctly granted defendants HCQIA immunity with respect to the summary monitoring restrictions.

We address in more detail the three other claims of Dr. Fobbs’ complaint as they are not included in the published opinion of the district court.

B. U.S.C. § 1981 Claim

Dr. Fobbs alleges that defendants deprived him of his rights under 42 U.S.C. § 1981, which confers upon “[a]H persons ...

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Williams v. the Columbus Clinic, P.C.
773 S.E.2d 457 (Court of Appeals of Georgia, 2015)
Lucchesi v. Bar-O Boys Ranch
353 F.3d 691 (Ninth Circuit, 2003)
Farmer v. Ramsay
41 F. Supp. 2d 587 (D. Maryland, 1999)
Hudson v. Kenosha County
29 F. Supp. 2d 513 (E.D. Wisconsin, 1998)
Conway v. Standard Insurance
23 F. Supp. 2d 1199 (E.D. Washington, 1998)
Smith v. University of Washington Law School
2 F. Supp. 2d 1324 (W.D. Washington, 1998)
Scott v. Ross
140 F.3d 1275 (Ninth Circuit, 1998)
Hernandez v. City of El Monte
138 F.3d 393 (Ninth Circuit, 1998)
Bryant v. New Jersey Department of Transportation
987 F. Supp. 343 (D. New Jersey, 1998)
Repp v. Oregon Health Sciences University
972 F. Supp. 546 (D. Oregon, 1997)
Jackson v. Katy Independent School District
951 F. Supp. 1293 (S.D. Texas, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
29 F.3d 1439, 94 Daily Journal DAR 10079, 94 Cal. Daily Op. Serv. 5489, 1994 U.S. App. LEXIS 17490, 65 Empl. Prac. Dec. (CCH) 43,369, 65 Fair Empl. Prac. Cas. (BNA) 750, 1994 WL 372691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fobbs-v-holy-cross-health-system-corp-ca9-1994.