Glenda Wrensford, MD. v. Virgin Islands Government Hospital and Health Facilities Corporation Including Roy Lester Schneider Hospital (RLS) CEO Tina Commissiongm CMO George Rosenberg, MD.
Opinion
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN
GLENDA WRENSFORD MD ) CASE NO ST 2023 CV 00399 )
Plaintiff )
vs ) ACTION FOR ) TEMPORARY RESTRAINING VIRGIN ISLANDS GOVERNMENT HOSPITAL ) ORDER PRELIMINARY AND AND HEALTH FACILITIES CORPORATION ) PERMANENT INJUNCTION Including Roy Lester Schneider Hospital (RLS) ) DAMAGES CEO TINA COMMISSIONG CMO GEORGE ) ROSENBERG MD Medical Executive ) JURY TRIAL DEMANDED Committee (MEC) Members DENITA ) BOSCHULTE MD YURI PETERKIN MD ) LEROY STERLING MD FRANK ODLUM MD ) JESSICA WILSON MD and ) TAI HUNT CEASAR MD )
)
Defendants )
)
Cite as 2024 VI Super 12
MEMORANDUM OPINION
fill THIS MATTER is before the Court on Plamtiff’s Motion for Temporary Restraining Order and Preliminary Injunction filed November 10 2023 and amended on November 15, 2023 On November 17 2023 the Court granted a Temporary Restraining Order and enjoined the Defendants from terminating Plaintiff‘s employment $12 The Plaintiff‘s Motion for Preliminary Injunction came on for hearing on December 5, 6, and 7 2023 and thereafier the parties filed written closing arguments Having heard evidence and considered arguments from both parties the court will grant Plaintiff‘s Motion for a Preliminary Injunction and will enjoin the Hospital from terminating Wrensford In addition, the court will order that Defendants place Wrensford back on payroll pending a formal investigation
Wrensford v VI Govt Hospital and Health Facilities et 21 Case No ST 2023 CV 00399 Cite as 2024 VI Super 12 Memorandum Opinion Page 2 of 33
SYNOPSIS
1B Plaintiff Glenda Wrensford a general surgeon at the Roy Lester Schneider Hospital (RLSH), had her employment suspended and her hospital pnvileges revoked after she did not participate in a formal investigation following a sentinel event at the hospital ‘ Wrensford filed suit for damages and injunctive relief seeking restoration of her hospital privileges, back pay, and compensation for uncompensated sick leave The defendants are Virgin Islands Government Hospitals and Health Facilities Corporation (VIGHHFC) including Roy Lester Schneider Hospital the Chief Executive Officer and Chief Medical Officer of RLSH and members of the Medical Executive Commxttee The issues are whether the medical staff bylaws empowered the president of the medical staff to suspend and/or revoke Wrensford’s clinical privileges, whether the Hospital bylaws empowered the chief medical officer to suspend Wrensford whether Wrensford was afforded due process before her hospital privileges were suspended and whether Wrensford has a property interest in her employment and hospital privileges FACTS2
1% Plaintiff Glenda Wrensford MD ( Plaintiff or Wrensford ) is a board certified surgeon licensed to practice in the U S Virgin Islands Wrensford has been employed with the Roy Lester Schneider Regional Medical Center (“Hospital” or “RLSH") as a general surgeon for over ten years Approximately six years ago she transitioned from a contract worker to a classified employee (of the Government of the Virgm Islands) Prior to the events described herei;
| Hospital privileges and clinical prixilege: are used interchangeably ’ The following facts are gleaned from evidence introduced during the Preliminary Injunction Hearing whxeh took place on December 5, 6, and 7, 2023 The following persons were called as witnesses during the hearing Dr Clayton Wheatley Iermicah Paul Lewis Dr Glenda Wrensford Vonetta Winston Lisa Williams Norman Dr George Rosenberg Dr Denim Boschulte Dr Frank Odlum TyshelCames Dr YuriPelerkin and Dr Samantha Targhi>
Wrensford v VI Govt Hospital and Health FaCIiltleS et a1 Case No ST 2023 CV 00399 Cite as 2024 VI Super 12 Memorandum Opinion Page 3 of 33
Wrensford had not been subject tn any disciplinary action, complaints, or findings of misconduct and was in good standing 115 On May 4 2023 Wrensford was the general surgeon on call at RLS Hospital on a regular rotation schedule At or around 1 00 a m , the Emergency Depanment( ED ) doctor on duty called Wrensford to come in to treat two gunshot victims and asked Wrensford to insert a lefi chest tube in one patient Wrensford immediately traveled to the hospital 116 As standard practice, a CAT scan image 0f the patient was produced to verify where the chest tube placement was necessary Relying upon this infomation and the CAT scan images Wrensford confirmed that a chest tube placement was necessary on the left side of the patient because blood was appearing on the lefi side A nurse said the patient had been shot on the right side Wrensford looked at the CAT scan images and saw blood on the left and concluded that despite being shot on the right, the bullet must have crossed over to the left since blood appeared on the lefi side of the chest However when Wrensford placed the lefi chest tube in the patient she observed that the patient was not producing the expected gush of blood but only minimal blood Wrensford was concerned and reexamined the CAT scan images at which point she realized that the CAT scan images were inverted appaxently by a radiology technician This inverted placement of the images was a Sentinel Event under the Joint Commission on Accreditation of Healthcare Organizations standards and warranted review 117 Wrensford realized that the patient needed a chest tube on the right And she immediately inserted a tube on the right chest Afler Wrensford notified the emergency room doctor ofthe error he reviewed the original CAT scan images again and concurred the images had been inverted Wrensford documented this error and continued to tend to the patient
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1T8 Wrensford subsequently requested that hospital staff obtain a portable connector to connect the left chest and right chest tubes to evacuate the blood In the meantime Wrensford provided a temporary form of suction to stabilize the patient The patient had other serious problems including paralysis and needed to be stabilized as soon as possible so that he could be transported off the island for timber medical treatment 1T9 Wrensford lefl the hospital around 4 00 a m and returned at approximately 9 00 a m Upon her arrival, Wrensford observed that the tubes were still not connected to suction This failure to carry out Wrensford s instructions was very concerning to her At 10 30 a m the tubes were still not connected Wrensford stressed to the staff the importance of the tubing as the patient could not be transferred off the island without it The daytime ER physician who had come on duty that morning said she was unaware of the need for tubing but would ensure it was done Wrensford left the hospital at approximately 10 45 a m 1110 At approximately 11 45 am or noon the ER physician called Wrensford to report the presence of a bubble in the canister attached to the chest tube Wrensford directed her to check the chest tube and Wrensford called Denita Boschulte MD President of the RLSH Medical Staff (“Boschulte”)3, to report a delay and lack of urgency in the Emergency Department in attaching the connector which was preventing the tube from suctioning The ChiefMedical Officer George Rosenberg MD( Rosenberg ) was out of the office when the incident occurred Thus Wrensford reported her concerns to Boschulte as she was the acting Chief Medical Officer during this time The ER physician called Wrensford again and told Wrensford she needed to return to the
I The pleadings have various spellings ofthe sumame of the President ofthe Medical Staff But for purposes of uniformity the court will only use the correct spelling Boschulte
Wrensford V VI Govt Hospital and Health Facilities et 31 Case No ST 2023 CV 00399 Cite as 2024 VI Super 12 Memorandum Opinion Page 5 cf33
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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST THOMAS AND ST JOHN
GLENDA WRENSFORD MD ) CASE NO ST 2023 CV 00399 )
Plaintiff )
vs ) ACTION FOR ) TEMPORARY RESTRAINING VIRGIN ISLANDS GOVERNMENT HOSPITAL ) ORDER PRELIMINARY AND AND HEALTH FACILITIES CORPORATION ) PERMANENT INJUNCTION Including Roy Lester Schneider Hospital (RLS) ) DAMAGES CEO TINA COMMISSIONG CMO GEORGE ) ROSENBERG MD Medical Executive ) JURY TRIAL DEMANDED Committee (MEC) Members DENITA ) BOSCHULTE MD YURI PETERKIN MD ) LEROY STERLING MD FRANK ODLUM MD ) JESSICA WILSON MD and ) TAI HUNT CEASAR MD )
)
Defendants )
)
Cite as 2024 VI Super 12
MEMORANDUM OPINION
fill THIS MATTER is before the Court on Plamtiff’s Motion for Temporary Restraining Order and Preliminary Injunction filed November 10 2023 and amended on November 15, 2023 On November 17 2023 the Court granted a Temporary Restraining Order and enjoined the Defendants from terminating Plaintiff‘s employment $12 The Plaintiff‘s Motion for Preliminary Injunction came on for hearing on December 5, 6, and 7 2023 and thereafier the parties filed written closing arguments Having heard evidence and considered arguments from both parties the court will grant Plaintiff‘s Motion for a Preliminary Injunction and will enjoin the Hospital from terminating Wrensford In addition, the court will order that Defendants place Wrensford back on payroll pending a formal investigation
Wrensford v VI Govt Hospital and Health Facilities et 21 Case No ST 2023 CV 00399 Cite as 2024 VI Super 12 Memorandum Opinion Page 2 of 33
SYNOPSIS
1B Plaintiff Glenda Wrensford a general surgeon at the Roy Lester Schneider Hospital (RLSH), had her employment suspended and her hospital pnvileges revoked after she did not participate in a formal investigation following a sentinel event at the hospital ‘ Wrensford filed suit for damages and injunctive relief seeking restoration of her hospital privileges, back pay, and compensation for uncompensated sick leave The defendants are Virgin Islands Government Hospitals and Health Facilities Corporation (VIGHHFC) including Roy Lester Schneider Hospital the Chief Executive Officer and Chief Medical Officer of RLSH and members of the Medical Executive Commxttee The issues are whether the medical staff bylaws empowered the president of the medical staff to suspend and/or revoke Wrensford’s clinical privileges, whether the Hospital bylaws empowered the chief medical officer to suspend Wrensford whether Wrensford was afforded due process before her hospital privileges were suspended and whether Wrensford has a property interest in her employment and hospital privileges FACTS2
1% Plaintiff Glenda Wrensford MD ( Plaintiff or Wrensford ) is a board certified surgeon licensed to practice in the U S Virgin Islands Wrensford has been employed with the Roy Lester Schneider Regional Medical Center (“Hospital” or “RLSH") as a general surgeon for over ten years Approximately six years ago she transitioned from a contract worker to a classified employee (of the Government of the Virgm Islands) Prior to the events described herei;
| Hospital privileges and clinical prixilege: are used interchangeably ’ The following facts are gleaned from evidence introduced during the Preliminary Injunction Hearing whxeh took place on December 5, 6, and 7, 2023 The following persons were called as witnesses during the hearing Dr Clayton Wheatley Iermicah Paul Lewis Dr Glenda Wrensford Vonetta Winston Lisa Williams Norman Dr George Rosenberg Dr Denim Boschulte Dr Frank Odlum TyshelCames Dr YuriPelerkin and Dr Samantha Targhi>
Wrensford v VI Govt Hospital and Health FaCIiltleS et a1 Case No ST 2023 CV 00399 Cite as 2024 VI Super 12 Memorandum Opinion Page 3 of 33
Wrensford had not been subject tn any disciplinary action, complaints, or findings of misconduct and was in good standing 115 On May 4 2023 Wrensford was the general surgeon on call at RLS Hospital on a regular rotation schedule At or around 1 00 a m , the Emergency Depanment( ED ) doctor on duty called Wrensford to come in to treat two gunshot victims and asked Wrensford to insert a lefi chest tube in one patient Wrensford immediately traveled to the hospital 116 As standard practice, a CAT scan image 0f the patient was produced to verify where the chest tube placement was necessary Relying upon this infomation and the CAT scan images Wrensford confirmed that a chest tube placement was necessary on the left side of the patient because blood was appearing on the lefi side A nurse said the patient had been shot on the right side Wrensford looked at the CAT scan images and saw blood on the left and concluded that despite being shot on the right, the bullet must have crossed over to the left since blood appeared on the lefi side of the chest However when Wrensford placed the lefi chest tube in the patient she observed that the patient was not producing the expected gush of blood but only minimal blood Wrensford was concerned and reexamined the CAT scan images at which point she realized that the CAT scan images were inverted appaxently by a radiology technician This inverted placement of the images was a Sentinel Event under the Joint Commission on Accreditation of Healthcare Organizations standards and warranted review 117 Wrensford realized that the patient needed a chest tube on the right And she immediately inserted a tube on the right chest Afler Wrensford notified the emergency room doctor ofthe error he reviewed the original CAT scan images again and concurred the images had been inverted Wrensford documented this error and continued to tend to the patient
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1T8 Wrensford subsequently requested that hospital staff obtain a portable connector to connect the left chest and right chest tubes to evacuate the blood In the meantime Wrensford provided a temporary form of suction to stabilize the patient The patient had other serious problems including paralysis and needed to be stabilized as soon as possible so that he could be transported off the island for timber medical treatment 1T9 Wrensford lefl the hospital around 4 00 a m and returned at approximately 9 00 a m Upon her arrival, Wrensford observed that the tubes were still not connected to suction This failure to carry out Wrensford s instructions was very concerning to her At 10 30 a m the tubes were still not connected Wrensford stressed to the staff the importance of the tubing as the patient could not be transferred off the island without it The daytime ER physician who had come on duty that morning said she was unaware of the need for tubing but would ensure it was done Wrensford left the hospital at approximately 10 45 a m 1110 At approximately 11 45 am or noon the ER physician called Wrensford to report the presence of a bubble in the canister attached to the chest tube Wrensford directed her to check the chest tube and Wrensford called Denita Boschulte MD President of the RLSH Medical Staff (“Boschulte”)3, to report a delay and lack of urgency in the Emergency Department in attaching the connector which was preventing the tube from suctioning The ChiefMedical Officer George Rosenberg MD( Rosenberg ) was out of the office when the incident occurred Thus Wrensford reported her concerns to Boschulte as she was the acting Chief Medical Officer during this time The ER physician called Wrensford again and told Wrensford she needed to return to the
I The pleadings have various spellings ofthe sumame of the President ofthe Medical Staff But for purposes of uniformity the court will only use the correct spelling Boschulte
Wrensford V VI Govt Hospital and Health Facilities et 31 Case No ST 2023 CV 00399 Cite as 2024 VI Super 12 Memorandum Opinion Page 5 cf33
hospital because every time the hospital staff attempted to connect the left side suction the patient would scream out and holler in pain Wrensford told the ER doctor that pain would be expected but it would only last for 30 seconds and then the patient would be okay fill At some point the ER physician contacted Yuri Peterkin MD ( Peterkin ) a radiologist and the chief of radiology at RLSH to relay the same concerns she had expressed to Wrensford Based on this phone call Peterkin recommended an additional CAT scan of the patient 5 chest to help further identify the problem At approximately 4 00 p m Peterkin called Wrensford to read her the report ofthe new CAT scan He said the images depicted fluid or substance in the lungs and the lefi tube was in the left thoracic cav1ty and likely high ll 12 Peterkin later received another call from the ER physician inquiring whether Wrensford would be returning to the hospital Peterkin could not give a definitive answer as to whether Wrensford would return fill: When Wrensford did not immediately return to the hospital the ER called Frank Odlum, MD ( Odlum ) the Chief of Surgery at RLSH and Wrenstm’d S immediate supervisor Odlum estimates he was called at approximately 3 00 or 4 00 p m and he arrived at the hospital at approximately 5 30 p m afier he was finished with his office patients (Jan his arrival Odlum found the patient stable and not in any distress Odlum troubleshooted the patient and ensured that everything was appropriately set up he moved the tubes from the portable suction and connected them to wall suction Odlum described the patient as fine and not suffering any discomfort Since the contact with the patient was so minimal, Odlum did not record any of this in the patient chart
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1H4 Unaware Odlum had been called to the hospital Wrensford returned to the hospital at approximately 7 00 p m to check on the patient and observed the chest tubes had been properly connected and suctioned $5 The following day on May 5, 2023, several medical staff, including Wrensford, attended a Rout Cause Analysis Meeting ( RCA ) to discuss the events of May 4 At least eight persons, including Wrensford, attended the RCA Generally, an RCA is conducted shortly after a sentinel event at the hospital A An RCA is a collaborative event that is typically conducted to help the hospital staff prevent another similar event incorporate helpful solutions moving forward and is not punitive or cast blame During the RCA, Wrensford explained the events of the previous day However, the meeting, in Wrensford’s words and unrebutted, became a ‘ free for all ’ where at least two attendees repeatedly yelled at Wrensford that she did not immediately return to the hospital when called That action caused Wrensford to conclude that her concerns regarding the inverted images the inability to timely locate the requested medical equipment and the failure to properly connect the tubes were not being properly considered nor appropriately addressed 5 $116 Following the RCA on May 15 2023 Boschulte sent a formal letter to Wrensford to set up a professional peer review meeting which is standard in the medical industry “ The letter outlined that the Medical Executive Committee ( MEC ) determined that a collegial intervention as permitted under the Medical Staffolaws Article VI Part A Sections 1 1 3 1 was appropriate to address the placement of a chest tube on the incorrect side of a patient and to address
‘ A sentinel e\ em 15 an event so out of the norm that it warrants Ihe medical staffexaminmg the event and what steps to take next to prevent n The parties stipulated that the placement of tubes on the wrong side of a patient is a sentinel
?‘sgtfonnal minute: were provided after the meetmg 5 Pl 5 Ex No 10
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Wrensford s refusal to respond to the ED physician 5 request to re evaluate the patient after expression of serious concems for the patient’s wellbeing 7 fill 7 On the morning of May 22 2023 Wrensford Boschulte and Peterkin arrived to attend the peer review meeting Wrensford inquired about having an administration employee present at the meeting to keep minutes Boschulte and Peterkin responded that recording or keeping minutes is not standard practice Upon hearing n0 minutes were going to be created, Wrensford inquired whether anyone would be taking notes and producing minutes for the meeting Boschulte again stated that no one would be present to take formal minute meeting notes However, Boschulte offered Wrensford the opponunity to record the meeting on her phone and then produce formal minutes from the recording Dr Wrensford declined this offer since it would not be official minutes because she was aware that the results at a collegial intervention could be placed in a physician’s personnel file Wrensford informed Boschulte and Peterkin she would only participate when someone was present to take official minutes, and Wrensford lefi the meeting The gathering was over in less than 2 minutes 108 Subsequently on or about June 2 2023 the Chief Medical Officer ( CMO ) of the hospital George Rosenberg MD and Odlum met with Wrensford as the CMO wanted to sit and chat with Wrensford to hear her perspective about the events of May 4 so he could better understand what had occurred Rosenberg was unaware an RCA meeting had already taken place Wrensford described to Rosenberg the lopsided tenor of the RCA meeting And instead of a chat with Rosenberg about the events of May 4 Wrensford expressed to him that she would prefer to pull the patient’s record and chart and provide a written synopsis Rosenberg agreed, and
7 The meeting was originally scheduled for May 19 2023 but moved to May 22 2023
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Wrensford promised to submit her report the following Monday Rosenberg responded that he was okay with a written Version and asked that Wrensford submit the report by midweek 1119 But on June 8 2023 Boschulte wrote to Wrensford, recapping the failure to conduct a proper collegial meeting on May 22 noting concerns about Wrensford s ability to work harmoniously with others and stated that afier consultation with Rosenberg and Dr Olivacce Chief of Nursing and in keeping with Wrensford 5 request for a more formal process, the MEC had decided to initiate a formal investigation pursuant to Article VI, Part B, Section 2A of the Medical Staff Bylaws 8 The letter also stated that a three person ad hoc investigating committee would be appointed to conduct the formal investigation Boschulte 3 letter explained that under the SRMC Medical Staff Bylaws one person is appointed by the MEC one person is appointed by the Chief Medical Officer (“CMO ’), and one person is appointed by the person being investigated in this case, Wrensford The Medical Bylaws provide that once all members are appointed to the ad hoc committee, the investigating committee is expected to complete and issue a report within thirty days Pursuant to the Medical Staff Bylaws the findings and recommendations of the ad hoe committee are then sent to the Board through the CMO tor a final decision on whether to accept the committee s proposal ° Boschulte concluded the letter by giving Wrensford a deadline of June 16, 2023, to submit a recommendation for a committee member Wrensford testified that she was happy to receive this letter and the fomial investigation because it would end the informality of meetings without minutes Given that the MEC was initiating a
8P1 EX 3 9 SRMC Medical Staff Bylaws Article VI Part B Section 4 Pl 5 Ex 3
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formal investigation and the letter said they had consulted with Rosenberg Wrensford believed delivering the written report to Rosenberg was no longer necessary $0 The portion of the Medical Staff Bylaws that provides for the formal investigation and a three person ad hoc committee states that the ad hoc committee shall not include partners associates or relatives or competitors of the Member being investigated, but it may include persons not on the Medical Staff 10 Wrensford could not find a professional to appoint to the ad hoc committee who possessed similar subject matter knowledge and expedence in responding to trauma in the emergency mom who was not her partner, associate, relative, or competitor On June 16 Wrensford emailed Boschulte communicating the difficulty Wrensford was experiencing in appointing a member to the ad hoc committee by the requested deadline Wrenstord instead requested that an external review be conducted to ensure a comprehensive objective analysis Her request for an extemal review arose from concems that any internal investigation would not be free ofbias 1121 Before the ad hoc committee was formed, Wrensford received a letter from Rosenberg placing her on an eight week suspension '1 The letter stated that not having received Wrensford’s report, Rosenberg was left with no choice but to base his evaluation on the accounts provided to him by the other physicians and nurses who cared for the patient on May 4 The letter said that Wrensford 5 failure to return to the hospital constituted patient abandonment and her lack of responsiveness to the call for help from the ER physician was an abdication of her duty that subjected her to discipline He concluded by saying that due to “your unacceptable patient care,
1" SRMC Medical Staffolaws Article VI Part3 Section 3(3) Pl Ex 3 “ Rosenberg 5 letter was dated June 16 and delivered on June 20, 2023 P1 Ex 10 The letter states the suspension was approved by the Chief Executive Officer ofRLSH
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lack of collegiality and insubordination I am suspending you for a period of eight weeks without pay ” The elght week suspension without pay began effective immediately and was set to end on August 13, 2023 Through her union Wrensford filed a union gnevance to challenge the suspension as she had not received any advance notice that failure to submit a written report would result in a suspension 1’ fil22 The day afler Wrensford received notice of an eight week suspension Boschulte emailed Wrensford to follow up on Wrensford s duty to name a representatix e to the ad hoc committee and extended the deadline to June 23, 2023, for Wrensford to name someone to the ad hoc committee Boschulte further stated that if Wrensford failed to meet the deadline 21 member would be appointed for her Boschulte clarified that the investigation would not address Wrensford 5 technical abilities as a surgeon but would be limited to Wrensford 5 response to the hospital staff‘s request for Wrensford to return to the emergency room Boschulte suggested Wrensford consider someone in the surgical/teehnical field, such as ophthalmology orthopedics or urology 0r one from any other medical field '3 1123 Wrensford replied to Boschulte by stating that her request for an external review still stands because of bias concerns since she had already been suspended Wrensford did not appoint any professional to the ad hoc committee by the June 23 deadline nor later But the MEC dtd not appoint anyone to the committee on Wrensford s behalf Nor did the MEC formal investigation occur as the MEC determined that the Medical Bylaws did not give the MEC the authority to appoint a member to the ad hoc committee on Wrenstord s behalf
‘7 The grievance remains pending u Plaintiff’s Ex N0 14
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$124 On August 3 2023, Boschulte sent a formal letter to Wrensford to advise her the medical staff denied the request for an external review because the Bylaws require a member first be appointed to the ad hoc committee, and then the ad hoc committee could initiate an external review The letter further stated that because of Wrensford 5 failure to nominate a member to the ad hoc committee, her hospital privileges were Voluntarily suspended pursuant to the Medical Staff Bylaws Article VI, Part D, Section 3 14 Suspension of Wrensford’s hospital privileges meant that she could not treat patients at the hospital 15 And Wrensford was thus unable to work at RLSH $125 On September 14 2023 Rosenberg requested that Wrensford provide notice regarding the date she intended to return to work “" She did not respond fl26 On October 2 2023 Rosenberg wrote to Wrensford stating that the delay in providing her retum to work date was untenable and gave her seven days to return but two days to give notice of her return date, failing which she would be subject to dismissal under Administrative Rules and Regulations Section 10 6 Item 21 17 On October 3, 2023, Wrensford submitted a letter from her physician which stated Wrensford was under his care unable to return to work at that time and would be reevaluated on November 2 2023 Wrensford sent this letter to HR Dr Odlum and several others, but she received no response to the letter 1127 On November 3, 2023, Wrensford’s physician sent a letter to RLS hospital stating she was cleared to return to work on Monday November 6 2023 On November 14 the Chief Executive
N Plaintiff‘s Ex No 16 ‘5 Wrensford was not paid during the suspension period, not even for sick leave after the suspenuon period had expired Defendants contend that Wrensford did not complete the necessary leave slip for sick leave Ho“ ever the sick leave Issue IS one of damages therefore, the court need not address it in this opinion determining ifpreliminary injunction should be granted ‘5 P1 5 Ex 19 '7 Pl 5 Ex 20
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Officer for RLS Tina Comissiong Esq MFA ( Comissiong ) sent a letter to Wrensford stating that she was scheduled to resume on call work as a general surgeen on November 20 2023 on the condition that active medical staff privileges were in place Comissiong 5 letter further stated that failure to have active medical staff priv11eges by the November 20 return date meant Wrensford’s employment would be permanently terminated 1128 On November 17 2023 Boschulte wrote to Wrensford to advise her that her failure to appoint a member to the ad hoe investigating committee resulted in her automatic resignation from the Medical Staff ‘8 Before the deadline in Comissiong 5 letter lapsed, Wrensford filed this lawsuit on November 10 2023 seeking a Temporary Restraining Order Injunctive Relief and Damages 1129 The Court granted the Motion for TRO in part prohibiting the Hospital from terminating Wrensford and an evidentiary hearing on the Motion for Preliminary Injunction was held on December 5 6, and 7, 2023 Both parties requested an opportunity to file written closing arguments and agreed to the extension of the temporary restraining order to accommodate that briefing schedule STATUTORY STRUCTURE OF RLS HOSPITAL AND ASSOCIATED BYLAWS AND REGULATIONS
1130 Defendant Virgin Islands Government Hospitals and Health Facilities Corporation (VIGHHFC) is a public entity that has jurisdiction over the territory’s hospitals including RLSH and all personnel and equlpment associated therewith V I C 19 § 245(a) and (c) VIGHHFC has a duty to “maintain a system of personnel administration based on merit princip1es, equal opportunity and treatment and scientific methods governing the appointment, promotion transfer
'3 Pl EX 2)
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layoff removal and discipline of hospital officers and employees ’ 19 V I C § 245(e)(1) The Chief Executive Officer ofRLSH “shall appoint and remove all managerial personnel, health care providers and all other professional and nonprofessional personnel subject to the provisions of Title 3, Section 530 relating to procedures for employee dismissals demotion: and suspensions 19 V I C § 244a(a)(b) And Section 530 of Title 3 provides that before the Hospital can dismiss, demote or suspend a regular employee the CEO must first filmish the employee with a written statement of the charges against the employee $131 In addition, VIGHHFC has a duty to “comply with the laws, rules and regulations, and procedures of the Government of the Virgin Islands as appIicable and most particularly with respect to employees and abide by collective bargaining agreements applicable to the Govemment employees subject to supervision by the corporation 19 V I C § 246(c) Further VIGI-IHFC shall have those powers and duties expressly provided by law and no others 19 V I C § 243 1132 The MedicaI Staff at RLS Hospital is organized under the St Thomas & St John District Governing Board ofthe V I Govemment Hospitals and Health Facilities Corporation (“Board ’),'9 as authorized by 19 V I C §§ 244(c) and 245(c)(3) 1133 Three different sets ofolaws for RLS Hospital are implicated and discussed in the instant case By Laws, Rules and Regulations of the St Thomas St John District Governing Board The Virgin Islands Govemment Hospital and Health Facilities Corporation (P1 5 Ex 1) Human Resource Department Administrative Policy and Procedure Manual (Pl 5 Ex 2) and Schneider Regional Medical Center Medical Staffolaws (Pl 5 Ex 3)
" Pl 5 Ex 3 Page 5 Medical Staff Bylaws Preamble Pg 5 [T]he medical staffis a component of the hospital corporation and must work with and 1.5 subjeu ta 1h; ulzzmme aulhomy 9/”th Board ofDWecmr: ”) (alterauon m ongsz) (emphasis added)
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DISCUSSION
A Motion for Preliminary Injunction 1134 Virgin Islands Rule of Civil Procedure 65 provides the legal standard for a ruling on a preliminary injunction When deciding whether to grant or deny a preliminary injunction, Virgin Islands courts shall consider the fallowing four factors
( 1) whether the movant has shown a reasonable probability of success on the merits, (2) whether the movant will be irreparany injured by denial of the relief;
(3) whether granting preliminary relief will result in e\ en greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest
Yusufv Hunted 59 V I 841 847 (V I 2013) (citing Petrus \ Queen Charlotte Hotel Corp 56
V1 548 554 (V I 2012) (quoting Iles \ tie Jongh 638 F 3d 169 172 (3d Cir 2011)) A preliminary injunction is an extraordinary and drastic remedy and is never awarded as of right but only ‘upon a clear showing that the plaintiffis entitled to such relief ’” Basszl v Klein, 75 V I 19 27 (V I Super Ct 2021) (citing Yusuf, 59 V I at 847 (quoting Mzmqfv Germ 553 U S 674 689 90 (2008)) 1135 The courts shall apply a variation of the sliding scale test when analyzing the four preliminary injunction factors 3RC & Co v Boynes Trucking Sys 63 VI 544 553 (VI 2015) (citing SBRMCOA LLC v Morehouse Real Estate luvs LLC 62 VI 168 186 (VI Super Ct 2015)) Under the sliding scale approach no single factor is dispositiVe 3RC & Ca 63 VI at
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1 Reasonable Probability DfSuccess 0n the Merits
1136 A reasonable probability of success on the merits is shown if a party demonstrates ‘ a reasonable chance, or probability, of winning ” Yusufl 59 V I at 849 (citing Singer Mgmt Consultants Inc v Mtlgram 650 F 3d 223 229 (3d Cir 2011)) The movant 0f the preliminary inj unction need only show that success on the merits is more likely than not rather than whether it will actually prevail on the merits Id Although a jury will ultimately determine the factual issues presented in the case," the Court shall make a finding of fact when considering a preliminary injunction Bum! 75 VI at 28 (citing Yusuf 59 VI at 85;) The burden is on the movant to provide evidence supporting each element of the cause of action Advanced Surgical v Cmtron, 2017 V1 Lexis 63 * 31 (VI Super Ct 2017) (citing Purine” \ Carter 621 F 2d 578 583 (3d
Cir 1980)) $137 Courts shall consider the movant s likelihood of success on the merits in conjunction with
the claim of injury 305511 75 V 1 at 28 (see 3RC & C0 63 V I at 555 (quoting Commonwealth v Cmy of Suflolk 383 Mass 286 418 N E 2d 1234 1235 (1981)) In certain cases courts can permit a preliminary injunctian if a moving party demonstrates a strong probability of success on the merits even if the irreparable harm factor is less sound Balm] 75 V I 3128 29 By extension a court may also conduct a similar evaluation if the risk of irreparable harm to moving party is substantial and the likelihood ofsuccess on the merits may be weaker Id (citing 3RC & Ca 63 V I at 556 (citingD C v Greene 806 A 2d 216 223 (D C 2002))
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i Violation of Hospital Bylaws 1138 Relying on the Board of Director Bylaws Wrensford argues that the President of the Medical Staff did not have the authority to revoke Wrensford 5 hospital privileges as the MEC s authority is limited by the Board 5 Bylaws Wrensford asserts that the President of the MEC acted outside the scope of authority in revoking Wrensford 3 hospital privileges and terminating her Medical Staff appointment Without first making a recommendation to the Board The bylaws 0f the Hospital specifically state,
While the Board shall delegate to the Medical Staff the authority to evaluate the professional competence ofits member physicians and dentist It shall hold the Medzcal Staff responstblc for making recommendatzans to the Board concerning mum] staff appamtments reappamfmertts and the grammg curtailment suspension or revocatzon
clzmcalprzvzlegcs ”
(alteration in original) (emphasis added) 70
1139 The Hospital 5 bylaws further state
Refusal Termination or Suspension of Appointment to the Medical Staff or Privileges thereon Consistent with the foregoing provisions any appointment to the Medical Staff may be terminated and any clinical privileges accorded to members of the Medical Staff may be curtailed or revoked by the Board prior to the expirations of the period for which such appointment was made or such clinical privileges granted 7'
1T40 In addition Plaintiff argues that the bylaws do not provide for the voluntary suspension of clinical pnvileges fur the failure to appoint someone t0 the ad hoe committee not even by the
0 Article IV Section 501) P1 EX ! PageS " Article XI Section 807) P1 Ex 1 Page 31
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Board In suspending Wrensford’s Clinical pnvileges, the President of the Medical Staff relied upon Article VI Part D Section 3 0f the Medical Staff Bylaws That section provides
“If at any time a Member fails to pmvide requested infomation pertaining to patient care issues, peer review activities, and/or qualifications for appointment or maintaining Clinical Privileges (including but not limited to information related to automatic relinquishment of privileges and/or physical or mental examination reports as specified elsewhere) pursuant to a fon‘nal request by the Credential Committee the MEC the Board any other committee engaged in peer review or the Chief Medical Officer the Member 5 Clinical Privileges shall be deemed to be voluntarily suspended until the required information is provided to the satisfaction of the requesting party ’72 WI However that section falls in a category that addresses failure to complete medical records
or utilize electronic medical records, loss of medical license, 1055 cf member’s DEA controlled substance authorization, failure to comply with the medical malpractice insurance coverage, and professional liability and/or a criminal conviction The court finds that nothing within Article IV, Part D is pertinent to failing to name a member to an ad hoc committee as failing to name someone to an ad hoc committee cannot be deemed a failure to provide requested information for any of the identified subject matters 1142 The Hospital Bylaws do not grant the MEC or its president the authority to suspend the physician 3 medical privileges for failing to name a person to the ad hoc committee Moreover, the court finds that nothing within any ofthe Bylaws grants the president ofthe Medical Staff the authority to suspend a physician’s clinical privileges
Pl Ex 3 Page 34
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1T4} Wrensford 5 Notification of Personnel Action ( NOPA ) was signed by RLSH 5 Chief Executive Officer, Chief Financial Officer, and Director of Human Resources 73 In addition, Wrensford 5 August 30 2013 employment offer was signed by both the Intenm Chief Executive Officer and the Chairperson of Schnieder Regional Medical Center Board of Tmstees 2‘ Finally Wrensford s biennial re appointment to the medical staff was approved by the Chairperson of the Hospital Board of Trustees, the Chairperson of the Credential Committee, and the Chairperson of the Executive Committee 75 The language in the Bylaws coupled with the evidence relating to Wrensford s hiring process and re appointment credentialing approval leads the court to arrive at the conclusion that, similar to the hiring authority, the authority to revoke clinical privileges and staff appointments is not within the control of the MEC President 1144 Although the Hospital began the formal investigatory process whereby a physician 5 privileges or staff appointment can be revoked, the MEC was only responsible for making a recommendation to the Board tor a final decision Based upon the foregoing Wrensford has demonstrated a reasonable probability of success in her claim that the President of the MEC acted without lawful authority in suspending Wrensford’s clinical privileges 1145 Moreover the Medical Staff Bylaws that provide for the ad hoc committee state the committee should consist of three persons Thus, the reference to a three person committee was not mandatory Therefore, when Wrensford did not name someone to the ad hoc committee, the committee of two had the right to consider the matter and proceed in accordance with the bylaws
3 Pl 5 Ex 6 ‘ Pl 5 Ex 5 5 Pl : Ex 30
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$6 The November 17 2023 letter from the president of the medical staff advising Wrensford that her appointment on the Medical Staff was automatically suspended for failing to appoint someone to the ad hoc committee“ was similarly issued without authority The letter cited Medical Staff Bylaws Article VI Part D Section 2D which provides that at the conclusion of the investigation the MEC has several different actions it may recommend, including the reduction or restriction of clinical privileges or that clinical privileges be suspended for a term It also provides that the MEC could recommend that medical staff appointment and/or clinical pnvileges be revoked (emphasis added) 77 Those Medical Staff Bylaws also state that any recommendation by the MEC that would entitle the member to request a hearing shall be forwarded t0 the CMO who shall give notification to the employee, and then the CMO shall forward the matter to the Board with a recommendation and all supporting information 23 So, not only did the president of the medical staff not have authority to voluntarily suspend, she did not have authority to automatically suspend Wrensford’s clinical pnvileges 7" 1H7 The parties presented no evidence that even suggests the MEC made a recommendation to the Board nor adxised the Board that Wrensford 5 hospital privileges were voluntarily suspended and that Wrensford was deemed to have automatically resigned her appointment to the medical staff Therefore Wrensford has demonstrated that she has a reasonable degree of success in her claim that the MEC violated the Hospital Bylaws by independently suspending Wrensford’s pnvileges and membership on the Medical Staff
5 Pl 3 EX 25 7 Pl EX 3 7“ Medical Staff Bylaws Article VI Part B Section MC) ° Medical Staff Bylaws Article VI Part B Section 4(1))
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ii Due Process 1148 The Due Process Clause of the Fourteenth Amendment prohibits government interference in an individual's property interests without due process of the law U S CONST amend XIV The Due Process Clause is made applicable to the Virgin Islands pursuant to § 3 ofthe Revised Organic Act Richards v People 53 V I 379 384 n 2 (V I 2010) (citing Revised Organic Act0f1954 § 3 48USC §1561) 1H9 In considering a procedural due process claim the plaintiffmust show (1) he was depnved of an individual interest that is encompassed within the Fourteenth Amendment's protection oflife, liberty or property and (2) the procedures available to him did not provide due process of law [les 638 F 3d at 173 Defendants argue there is no constitutional guarantee of an established right to continued employment However, detemining “whether an employee has a propeny right in continued employment is a question of state [or territorial] law ” George: » Gav t of the VIrgm Islands 2021 VI Super 841} * 16 17(citing Iles 638 F 3d at 173))
A Property [merext 171 Employment
1150 A regular government employee as defined in Title 3 of the Virgin Islands Code has a statutorily protected property interest in their employment Flemmg \ Cruz 62 V I 702, 715 (V 1 2015) and Title 3 V I C § § 530(a)(1) and 530(a)(2)(C) (See also [les 638 F 3d at 230) Therefore Wrensford as a regular employee, has a protected property interest in her employment Title 3 V I C §§ 530(a)(1) and 530(a)(2)(C) 3" Virgin Islands law requires that before the head officer of any agency (including a hospital under the jurisdiction ofthe VIGHHFC) dismisses demotes or
‘0 None of Ihe panics dispute that Wrensford is a regular employee
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suspends a regular employee of a department or agency, the head officer (in this case, the CEO of RLSH) shall fumish the employee with a written statement of the charges against her and the employee has ten days to appeal Title 3 V I C § 530(a)(2)(C) In addition the Hospital bylaws and Human Resources Manual specify that an employee is entitled to notice and a hearing before
they are tenninated 3‘ 32 This has not occurred 33 Therefore Wrensford is entitled to a preliminary injunction enjoining the Hospital from tenninating her 34 In addition Wrensford’s last
reappointment to the Medical Staff occurred on August 6 2022 and is due to expire on August 5 2025 3’ This strengthens the finding that Wrensford has a property interest in her employment
3‘ Medical Staff Bylaws Anicle II Section I 1 1 l4 Prerogative Appointees to this Active Category may Be lcrmmalcd by the Board upml 7860mmendazwn of the MEC and effective immediately there will be appropriate attempts ofNotlficatlon t0 the affected Active Staff Member This will be subject to any hearing at appeal rights set forth elsewhere in these Bylaws and in the Medical Staff InVeingaIion Correcti\e Action Hearing and Appeal Plan Policy (emphasis added) See him Article 11 Section 1 The Acti\e Category Qualifications Appointees to this category must have Served on the Medical Staff for one (1) year and complied with the Minimum Utilization Criteria Pl Ex 3
7 Human Resources Departments Admini:trati\e Policy and Procedure Manual Secllon 10 2 Whenever Suspension or a diccharge i: recommended the division head and the Human Resource Director shall promptly conduct an investigative hearing and immediately after the hearing submlt reports of findings and recommendations to the Chief Executive Officers through the Human Resource Director The Chlef Executive Officer shall make the final decision on disclplinary action against the employee The employee shall be furnished a letter specifying the disciplinary action being taken and the reasons therefore Section 10 5(B) In the Case ofdischarge prior to a formal notice of dismissal the Chief Executive Officer or a designee will conduct a hearing of the charges Pl 5 Ex 2
3‘ Certainly Wremford received notice regarding the ad hoc Committee and she refined to participate But that piece» did not invoke her employment despite the obvious intertwining of her Clinlcal pnvlleges and employment
3“ Although Wrensford has not been terminated from her employment it is only the temporary re<lrainlng order that saved her from that fate as the CEO issued a letter threatening lamination just a few days before the court entered the temporary restraining order prohibiting the Hospital from terminating Wrensford Had the court not acted when it did, Wrensford would have likely been terminated
3 Pl EX 30
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B Progeny interest in clinical privileges
1151 Wrensford claims a property interest in her clinical pdvileges Wrensford testified that since the suspension of her privileges, she has been unable to return to work on the general surgery call rotation at RLSH and treat patients since the start ofher eight week suspension and revocation of clinical privileges 36 Without her clinical privileges Wrensford is prohibited from treating patients In fact the CEO 5 letter to Wrensford, warning her of potential termination stated As you know, you are required to have active medical staff privileges in order to practice medicine as a general surgeon at SRMC 37 As a result, Wrensford is unable to fulfill any ofherjob duties as a general surgeon at RLSH without clinical or medical staffprivileges which clearly demonstrates that Wrensford 3 hospital privileges are wholly interwoven with her employment at RLSH In addition the Medical Staff and Hospital Bylaws require that the MEC adhere to a series of procedural steps including making a recommendation to the Board prior to tennination of a physician’s privileges 324 Since the Bylaws require a formal investigatory process and opportunity for a hearing before the suspension of privileges, and Wrensford's clinical privileges are interwoven with her employment the coun finds that Wrensford has a property interest in her clinical privileges a Notice and Hearing
3” P1 5 Ex 17 37 P1 5 Ex 26 33 PI 5 Ex 3 (quoting Medical Staff Bylaw: Article VII Part A Initiation of Hearing (A) [A] Medical Staff Member shall be entitled to request a heanng whenex er one of the following recommendations has been made by the MEC or the Chief Medical Officer (3) Revocation ofMedical Stafprpointment (6) Suspension of Clinic Privileges for more Ihan (14) fourteen days (other than precautionary suspension); see [1150 Article VI, Pan B Imestigations)
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1152 The Due Process Clause requires that an individual receive proper notice and hearing before depriving that individual of a protected interest Cleveland Board of Educatmn v Loudermzll 470 U S 532 543 544 (1985) (citing Boddte v Connecticut 401 U S 371 379
(1971)) 1153 Wrensford argues that the Hospital disregarded her due process protections by not
providing adequate notice and hearing The Hospital counters that Wrensford was given notice of the charges against her several times through a series of communications reminding her to appoint someone to the investigative committee In addition the Hospital argues that Wrensford had an opportunity to be heard at the RCA the Collegial Intervention and by providing Rosenberg with her wntten account of the May 4 events Thus, the Hospital asserts Wrensford had severa1 opportunities to explain her version of events, and particularly, the chance to explain why she did not immediately return to the hospital on May 4 39 1154 The court agrees that Wrenstord received several notices requesting she appoint someone to the ad hoc investigative committee But Boschulte failed to communicate to Wrensford that her privileges would be suspended as a consequence of failing to assign someone to the investigative committee In fact Boschulte communicated in wnting to Wrensford on June 21 2023 that her failure to appoint someone to the investigatory committee would result in Boschulte appointing someone on her behalf “0 In response Wrensford stated she was unsuccessful in finding someone to qualify in reviewing her Case Bosehulte never appointed a person for Wrensford and testified that she subsequently determined she had no authority under the Medical Staff Bylaws to appoint
3’ This court has no opinion on whether Wrensford had a duty to immediately remm lo the hospital when called on the afternoon of May 4 ‘0 Pl 5 EX 14
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someone to the committee on Wrensford s behalf Boschulte first informed Wrensford in a phone call conversation on August 2, 202) that her hospital privileges would be suspended if Wrensford did not name someone to the ad hoc investigative committee The following day, Wrensford’s hospital privileges were voluntanly suspended ’ However the court is not persuaded that one phone call n'ses to the level of adequate notice under the Due Process Clause, paniculaxly because it was provided only one day before Wrensford 3 clinical privileges were suspended Furthermore even if the notice was sufficient, the president of the medical staff had no authority to terminate Wrensford’s clinical privileges 1155 The court finds that Boschulte was correct in determining that the ability to initiate an outside formal investigation was dependent upon the formation of the ad hoc committee 4' However the bylaws only state that the ad hoc committee should consist of three persons In other words, the bylaws do not require a committee of three people Once Wrensford declined to panicipate the committee had the right to proceed and refer the matter for an outside investigation if it so desired There is no doubt that Wrensford's predicament is partially self inflicted by failing to accept a phone recording at the attempted collegial intervention meeting on May 22, 2023, demanding fomality, and then refusing to participate in a fomal investigation under the Medical Staff bylaws to which she is bound Nonetheless nothing within the bylaws authonzed the
“ Article VI Part B provides Investigations Section 3(8) An oumde eon:ultant or agency may be used whenever a determination is made by the Hagpzml and the tmesttgalmg committee that (l) the clinic expertise needed to conduct the review is not available on the Medical Staff or (2) the Member under review 13 likely Io ratse or had raised questions about the objectivity ofother Members on the Medical Staff (whether or not such questions have merit), or (3) the Member: With the necessary clinical expeni:e on the Medical Staffvtould not be able to conduct a reView without riak of allegations ofbias, even If such allegations are unfounded " (emphasis added) Pl ’3 Ex 3
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President of the Medical Staff to valuntan'ly suspend Wrensfords hospital privileges without Board approval 1156 Mareover, the court received no evidence that Wrensford received any notice prior to November 17, 2023, that she was going to be deemed to have automatically resigned her Medical Staff appointment for not appointing a member to the investigative committee 4” 1157 Separately the court notes that Wrensford had notice and an opportunity but refused to participate in the Collegial Intervention because no administrative person would be present to take formal minutes But refusal to participate in a Collegial Intervention under the Medical Staff Bylaws only permits the MEC to initiate a formal investigation not to suspend her hospital P rivile g es ‘3 The court finds it understandable that Wrensford never p rovided a written re P on to Rosenberg because Boschulte 5 June 8 2023 letter to Wrensford stated that after consultation with Rosenberg a fomal investigation was being initiated A4 Certainly, this led Wrensford to believe that Rosenberg was aware of the fomal investigation Why Rosenberg would still expect a report from Wrensford is unknown But the court hastens to add that the parallel tracks of sanctions associated with employment and sanctions associated with clinical privileges can certainly be confusing for a member of the medical staff with clinical privileges especially since clinical privileges are interwoven with employment, and Wrensford could not work without both 45
4‘ Pl 5 EX 25 4’ Pl 5 EX 3 (citing Medical Staff Bylaws Article VI Part B Section 1(a) and 2(a)) see also Pl 5 Ex 11 M Pl w Ex 1 l (quoting the June 8 2023, letter AS the MEC we have made sufficient inquiry and have reviewed the matter with [Rosenberg] (ICMO) [a]s per your request for a more formal process and In recognition of the Bylaw.
the MEC met for an executive sesuon on Friday May 26, 2023, and we have decided to Initiate a formal invesligalion ) (alteration in original) ‘5 Despite the purported failure ofWrensford to tender her report to the Chief Medical Officer there was no authonty for the ChiefMedical Officer to subject her to an eight “ eek suspension because she v» as entitled to a hearing pursuant to Human Resources Department Administrative Policy and Procedural Manual Section 10 4(3) In addition the maximum Suspensmn under the bylaws is 30 days under the Human Resources Department Administrative Policy
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1158 In addition, Boschulte suspended Wrensford’s clinical privileges without first making a recommendation to the Board as required by the Board of Director Bylaws 46 The MEC’s course of action did not provide Wrensford with adequate notice or hearing before revoking her privileges and Medical Staff appointment Depriving Wrensford of her property interest in clinical privileges without proper notice and hearing violates the due process clause In doing so, the Court finds that Wrensford has demonstrated a reasonable probability of success on the merits ofher denial of due process claim 2 Irreparable Harm
1159 Irreparable injury or ham is the “certain and imminent ham for which a monetary award does not adequately compensate Yum] 39 VI at 854 (citing WlSdOm Imp Sales Co ‘ Laban Brewmg C0 339 F 3d 101 114 (2d Cir 2003)) While considering the pre1iminary injunction factors, irreparable harm is the primary factor a moving party must demonstrate in order to succeed on a motion for a preliminary injunction ” Basstl, 75 V 1 21129 (citing 3RC & Ca , 63 V I
at 554) 1160 To prove the irrepaxable ham factor Wrensford must show that monetary damages are
either difficult to ascertain or are inadequate ” Gourmet Gallery Crown Bay Inc v Crown Bay Marina LP 68 V1 584 597 (VI 2018) (citing Yum] 59 V I at 854) (quoting Danzelson 479 F 2d at 1037) The moving party fails to establish the irreparable harm necessary to succeed on a
and ProceduralManual Section 10 4(A) P1 5 Ex 2 EV en the MedicalStaffolaws Article VI ParlD Section 5(A) Pl 5 Ex 3 limits the suspension to 29 days
“ Article IV Section 501) Duties Powers and Restrictions ofindividua] Direclom and the Board While the Board ahall delegate to the Medical Staff the authority to evaluale the professional competence of its member physician: and dentist It shall hold the Medical Smffrevpansiblefor makmg rewmmendatmns t0 the Board concerning initial ataffappoinlmenls reappointments and the granting curtailment suspension orrevocationclinicalprivileges )P1 5 EX 1 (alteration in original) (emphasis added)
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preliminary injunction if the loss is a matter ofsimple mathematic calculation 1d (citing Yum] 59 V I at 854) (citations and internal quotatian marks omitted) Finally the irreparable ham] must be imminent 1d 1161 Wrensford argues that terminating her employment at RLSH would severely impact her ability to remain and practice in the Virgin Islands which has been her home for many years Wrensford further claims that the report to the National Board conceming her loss of privileges will result in reputational damage and significantly limit her ability to find employment outside the Virgin Islands The Hospital points out it is statutorily required to report the revocation of Wrensford s privileges and it argues Wrensford was given proper notice and hearing to address the charges against her 47 In addition, the Hospital points out that Wrensford was offered the opportunity to reapply for her privileges 1162 RLSH is the only hospital located on St Thomas If the court denies the motion for preliminary injunction, Wrensford will be unable to practice her profession in the Virgin Islands And the intangible cost of a non voluntary move offisland cannot be calculated Further any effort by Wrensford to relocate and apply for positions outside the Virgin Islands is significantly complicated by the report to the National Board Wrensford s liberty interest may also be impacted if certain hospitals refuse to hire Wrensford based on the National Board report generated by a wrongful suspension of clinical privileges based upon Concems about Wrensford s ability to work
‘7 Although the Defendants make th|s argument the court notes that those arguments are more applicable to the success on the merits element of a preliminary injunction ruling than the element ofirreparable ham Sec Defs s Clo<ing Arg 15 16 Dr Boschulte testified that plaintiff Wremford was not barred from re applying for her privilege: Additionally Plaintths clalm ofdaInage to her reputation based on the hmpital 5 Statutory ability to report does nut constitute irreparable han'n because she was provided notice and opportunity to be heard regarding the charges against her and repeatedly chose not to avail herself of the proceas
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harmoniously with others The court has no opinion on whether Wrensford had a duty to quickly rerum t0 the hospital on the afiemoon of May 4 but notes that Odlum the Chief of Surgery and Wrensford s supervisor completed his private office duties before reporting to the hospital almost 1 5 hours after he was called His treatment of the patient was so insignificant that he did not record his actions in the patient 3 chart Moreover Boschulte 5 letter ofMay 15 which advised Wrensford of the Collegial Intervention, also stated the Medical Executive Committee has met and it has been determined that the clinical assessment of your competency should be performed by the Chief of your Department first before any further consideration for evaluation by the Medical Executive Committee 4" Despite this acknowledgment by the MEC that the Chief of Wrensford s Department that being Odlum would perform a clinical assessment the court received no evidence that such a clinical assessment was perfumed This supports the finding for a preliminary injunction since the loss of clinical privileges was not tied to any finding of a lack ofcompeteney on Wrensford 5 part 1T6} If the court were to deny the motion for preliminary injunction, a report to the National Board will likely follow Nothing herein is meant to suggest that RLSH should always be prevented from sending a negative report on a physician to the National Board Instead the court finds that in this specific instance where Wrensford 5 clinical privileges were suspended without proper notice and by an official who had no authority to do so, and the investigation was prompted by a Concem about Wrensford s ability to work harmoniously with others and not a finding of lack of competency necessitates a preliminary injunction
“ PI Ex 11
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$4 The court finds that Wrensford’s inability to engage in her profession in the Virgin Islands and the potential loss of her reputation without a proper basis for the suspension of clinical privileges, are not campensable by monetary damages As such, Wrensford has successfully demonstrated a risk of irreparable ham for which a monetary award would be inadequate
3 Harm to the Nonmoving Party 1i65 Courts must also determine whether the nonmoving party will suffer any irreparable harm if the preliminary injunction is issued in favor of the moving party Yusuf, 59 VI at 856 (Km Pharms Inc \ Andrx Corp 369 F 3d 700 727 (3d Cir 2004) (quoting Optlczans Assn afAm \ Indep Opttczans ofAm 920 F 2d 187 192 (3d Cir 1990)) In considering the harm to each party the Court should aim to maintain the status quo which is defined as the last peaceable noneontested status of the parties Bassll 75 V I at 3l (citing Yzlszgf, 59 V I at 856 57 (finding that a preliminary injunction maintained the status quo by assuring that the parties retained equal control over their business pending trial» 1!66 Here, the harm to Wrensford, if the preliminary injunction is granted, far outweighs any harm RLSH will face ifthe injunction is denied The Hospital contends that granting the injunction Will force RLSH to reinstate Wrensford 5 Hospital privileges, increasing the possibility ofpatient injury and exposing the Hospital to reputational damage The court is not persuaded by the argiimem that Wrensford s actions or inactions on May 4 posed a significant risk to patient safety or the Hospital or caused any harm to the patient In fact, Wrensford’s supervisor, Odlum, testified that the adjustment to the patient 5 tubes was so minimal that he did record it in the patient 5 chart The court notes too that when Odlum was called to the Hospital he took the time to finish up with his office patients before going to the Hospital and arrived there approximately 1 5 hours after
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he was called Odlum testified that when he arrived at the Hospital, the patient was stable and not in distress This leads the court to find that the patient was not in imminent danger Testimony also demonstrates that a series of missteps likely contributed to the call for Wrensford to return to the hospital starting with the radiologist tech 3 inverted CAT scan (had the images not been inverted Wrenstord wauld have placed the tubing on the correct side of the chest, and a second tube and attachment to wall suction would not have become necessary), followed by failure of the staff t0 timely find the necessary equipment to connect the tubes to the wall for suction Lastly, evidence provided by both parties demonstrates that Wrensford s privileges were suspended not because of any failure or omission in her treatment of the patient but because she did not appoint a member to the ad hoc investigative committee None of the evidence heard during the evidentiary hearing suggested that Wrensford 3 treatment of the patient was substandard As a result the court finds the Hospital will not suffer greater harm, or any harm, if an injunction is granted in favor of Wrensford 4 Public Interest $167 On the element of public interest Virgin Island courts should seek to prevent the parties from halting ‘specifie acts presumptively benefitting the public until the merits [can] be reached and a determination made as to whatjustice require[s] 30ml 75 V I at 31 (Yusuf 59 V I at 858 (quoting Cam I Grp Inc v Amoco Chemzcals Corp 614 F 2d 351 358 (3d Cir 1980)) But ifboth a likelihood of success on the merits and irreparable harm can be shown then the public
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interest factor typically tends to favor the moving party as well 3RC & C0 63 V I at 557 (citing mm 59 V 1 at 347) 49 $8 In this case the public interest factor favors Wrensford because she has demonstrated a reasonable probability of success on the meats and irreparable harm The Hospital asserts that Wrensford's conduct fell below an applicable standard of care and reinstating her would not be in the public interest However nothing in the record demonstrates her skills particularly as a general surgeon have fallen below a standard of care In fact Boschulte informed Wrensford that the investigation will not address your technical abilities as a surgeon 5" Testimony evidence conceming the events of May 4 indicates that the patient 3 initial CAT scan was inverted From the outset Wrensford had repeatedly requested medical devices to stabilize that patient before transfer off island When Odlum, Wrensford’s supervisor, was called to the Hospital to tend to the patient he found the patient stable and not in any distress Odlum 5 treatment of the patient was so insignificant that he did not record it in the patient chart Moreover, the public has an interest in requiring the Hospital to correctly follow the procedures outlined in the Hospital Bylaws befere sanctioning a public employee Accordingly it's in the public's interest to grant the injunction and encourage VIGHHFC and its hospitals to adhere to the laws of the Virgin Islands and the Hospital Bylaws
“’ (quoting Amman Tel & Ttl Co \ ttmme & ConseneProgmm Inc 42 F 3d 1421 1427 n 8 (3d Ctr 1994)) tee 111:0 Mano s: Crypt Inc 62 v1 at 592 [WL] at *4 [the public interestweighed agairm inning the injunctton where the mowng party failed to estabhah a llkellhuod of succesa and the mjuncuon would have nsked the 10:5 of federal grant money), T117 Top Camtr Corp 60 V I at 727 28 (the public interest wetghed In favor of the injunction where the dispute involved the award of a contract on a htghway project without following the proper procurement proceea) Yuwf, 59 v1 ztt x57 59 (affirming the Superior Court 5 findmg that the public interest weighed in favor of the injuncllon when the moving party satisfied the other factors and the continued employment of600 Virgin Islanders was at stake)
5n P] 5 Ex 14 The Investigation will not address your technical abilities as a surgeon It specifically will address the altualion :urrounding your response to request made by staff to return to the emergency room ‘
Wtensford v VI Gnu Hospital and Health Facilities et a1 Case No ST 2023 CV 00399 Cite as 2024 VI Super 12 Memorandum Opinion Page 32 of 33
CONCLUSION
1169 Considering the evidence offered by the Plaintiff at the evidentiary heanng on Decembett 5 6 and 7 the court will grant Plaintiffs Motion for Preliminary Injunction The court weighed the four factors using a Variation of the sliding scale method The court finds that the Plaintiff demonstrated a reasonable probability of success on the ments of her claim for violation of the Virgin Islands law and violation ofdue process The Plaintiff has also established that the ham to her trade and protected interests is imminent Moreover the court is not persuaded that any petential harm or risk to the Defendants by reinstating Plaintiff‘s privileges outweighs the harm to Plaintiffifthe injunction were denied Finally the coutt finds that the public interest is served by encouraging VIGHHFC and its hospitals to adhere to the procedures set forth in their Bylaws 1170 Based on the preceding analysis, the court will grant the motion for preliminary injunction and enjoin Defendants from terminating Wrensford and enjoin Defendants from sending a negative repott to the Joint Commission pending completion of the investigation 5' In addition the court will also 1) order that the Hospital place Wrensford back on the payroll within twenty days and 2) permit the Hospital to again initiate a formal investigation provided it does so within 60 days 57
’1 At some point Wrenstord asaerted that the Court should prevent the Hospital from continuing wtth a tonnaI im esttgation But were the court to preclude any further mvesttgatton and <tmply restore Wtencford 5 clinical pri\ileges and place her back on payruIl u mum preclude the hospital from doing Its intestigation and send a Stgnal that the court finds that Wtensford s actions are above reproach That IS not the Intent here The court has no opimon on whether Wtensford :hould have been a subject of a peer review or formal investtgatton But Medical Staff |S :ubJeet to overstght by the Medical Executive Committee the CMO the CEO and the Board It would be a grave error for this court to preclude them from petfon‘ning [heir dunes In addition batting further investigation could set an improper precedent for other medical staff to potentially argue they <hould not be subjecl to formal investigation
57 If the defendants reinitiate the formal investigation and Wrensford again declines to name a member to the ad hoc committee the other two members of the commtttee shall proceed Mthout the third member And the committee shall make a recommendation to the Board in accordance with the bylaws If the defendants do not re initiate a formal investigation Withln SIXty days they would have waived the tight to do so
Wremford v VI Govt Hospital and Health Facilities et ai Case No ST 2023 CV 00399 Cite as 2024 VI Super 12 Memorandum Opinion Page 33 OH}
Since Wrensford’s clinical privileges were wrongfully suspended, the court is ofthe opinion that she has demonstrated that she is entitled to have her clinical privileges immediately restored However, the court will instead allow the defendants the discretion to decide if Wrensford’s clinical privileges should be reinstated pending completion of the formal investigation But even if the Hospital defers reinstatement ofthe clinical privileges Wrensford must be placed back on payroll and receive all other benefits associated with her employment, pending completion ofthe formal investigation and ultimate Board action, if any An order consistent with this Memorandum Opinion shall immediately follow
DATED March / 2024 W224 /§ :
Kathleen Mackay
ATTEST Judge of the Superior Court TAMARA CHARLES 0fthe Virgin Islands Clerk ofthe Court
BY {or LATOYfi Court Clerk Supervisor 05 /0| / 41$
Glenda Wrensford, MD. v. Virgin Islands Government Hospital and Health Facilities Corporation Including Roy Lester Schneider Hospital (RLS) CEO Tina Commissiongm CMO George Rosenberg, MD. (Glenda Wrensford, MD. v. Virgin Islands Government Hospital and Health Facilities Corporation Including Roy Lester Schneider Hospital (RLS) CEO Tina Commissiongm CMO George Rosenberg, MD.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.