Embed Size (px)
Citation preview
ORIGINAL
IN THE SUPREME COURT OF OHIO
GEORGE A. GEORGOPOULOS, M.D., : CASE NO. 11-1302
vs.
Plaintiff-Appellant,
HUMILITY OF MARY HEALTHPARTNERS, ET AL.,
Defendants-Appellees.
On Appeal from the Trumbull CountyCourt of AppealsEleventh Appellate District
Court of Appeals Case No. 2010 TR 00071
Trial Court Case No. 2008 CV 3043
MEMORANDUM IN OPPOSITION TO JURISDICTIONOF DEFENDANTS-APPELLEES, HUMILITY OF MARY HEALTH PARTNERS, INC.
DB/A/ ST. ELIZABETH HEATH CENTER, CLIFFORD WALDMAN, M.D., ANDNICHOLAS CAVARROCHI, M.D.
JOSEPH J. FELTES (#0014970) GEORGE A. GEORGOPOULOS, M.D.
JUSTIN S. GREENFELDER (#0077924) 5742 Logan Arm DriveBuckingham, Doolittle & Burroughs, LLP Girard, OH 44420P.O. Box 35548 Tel. (330) 261-3648
Canton, OH 44735-5548Tel. (330) 492-8717 Plaintiff-Appellant, Pro Se
Fax (330) 492-9625Email: Jfeltest^bdblaw.com
t¢[email protected] com
Attorneys for Defendants-Appellees
Lm^^IE D
AUG292011
CLERK OF COURTSUPREME COURT OF OHiO
Ai1G29 z011
CLERK OF COUR►SUPREME COURT OF OHIO
TABLE OF CONTENTS
EXPLANATION OF WHY THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTERESTOR THAT INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION ....................................................
STATEMENT OF THE CASE .................................................................................................................3
STATEMENT OF THE FACTS ...............................................................................................................4
ARGUMENT IN OPPOSITION TO PROPOSITIONS OF LAW ...................................................................11
[APPELLANT DOES NOT PROPOSE ANY SPECIFIC PROPOSITIONS OF LAW]
CONCLU SION ...................................................................................................................................15
PROOF OF SERVICE ..........................................................................................................................16
11
EXPLANATION OF WHY THIS IS NOT A CASE OF
PUBLIC OR GREAT GENERAL INTEREST OR THAT
INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION
This case is about a hospital's conducting peer review in furtherance of quality care and a
single physician's decision to quit his practice and close his office rather than agree to be
monitored for six cases. It is essential that hospitals conduct effective peer review in order to
assure that physicians on their Medical Staffs remain currently competent to perform procedures
without subjecting patients to a risk of harm. Concern about a physician's competence does not
have to rise to the level of malpractice before peer review can and should be taken.
Dr. Georgopoulos urges this Court to accept his case because he believes he has been
treated unfairly and the community has been deprived of his "excellent services." He believes he
has been falsely persecuted, and that his case "deserves to set a precedent and become a beacon
for posterity." While these issues may be of great personal importance for Dr. Georgopoulos,
they do not rise to the level of great general or public interest for this Court to entertain his
appeal. This case is extremely fact-specific and, thus, it would be difficult to adopt a broad
proposition of law for Ohio courts to apply in reviewing hospital peer review actions.
Moreover, Dr. Georgopoulos fails to set forth a proposition of law that this Court could
adopt even if it were to accept the appeal. Based on the arguments in Dr. Georgopoulos'
memorandum in support of jurisdiction, Appellees cannot even hazard a guess as to what the
proposition of law could be. His arguments are personal in nature and most relate to his practice
of medicine. Once again, these purely personal complaints about how a hospital conducts peer
review are not suffzcientfo`r tin`s1,oni''-to reviewihisrnatter.
Finally, this case is largely about the interpretation and application of a federal statute.
The trial court concluded that Appellees were entitled to immunity under the Health Care Quality
1
Improvement Act of 1986, 42 U.S.C. §11101 et seq. ("HCQIA"). The Court of Appeals
affirmed this ruling after a de novo review of the record. HCQIA creates a rebuttable
presumption of immunity under §11112(a), forcing a plaintiff to prove by a preponderance of
evidence that the defendant hospital and peer review participants did not take peer review action:
(1) in the reasonable belief that it was in furtherance of quality health care; (2) after a reasonable
effort to obtain facts; (3) after adequate notice and hearing procedures were afforded to the
physician involved in peer review; and (4) in the reasonable belief that the action was warranted
by the facts known after such reasonable efforts to obtain facts.
Dr. Georgopoulos could not overcome that presumption. He was represented by
competent counsel at the trial court level who had the opportunity to conduct discovery and offer
evidence to the court on summary judgment. The trial court concluded, and the court of appeals
agreed, that the evidence submitted was not sufficient to meet Dr. Georgopoulos' burden. Dr.
Georgopoulos now argues that these courts were wrong because his medical treatment of certain
patients was justified. However, he offers no legitimate argument to challenge Appellees'
objective decision to initiate peer review proceedings. He also offers no cogent reason why he
adamantly refused to be monitored. His deposition testimony on this issue is particularly telling:
I was baffled that decision was a board certified surgeon to supervise me. Imean, like I am not a board certified? Why do I need a board certified
surgeon to supervise me?...I am probably the worth of four board certifiedcardiac surgeons. I mean, I cannot make it more striking.
1
Rather than agree to peer review monitoring of only six cases, which could have been
completed expeditiously and if there were no problems found would have allowed Dr.
Georgopoulos to resume his practice, Dr. Georgopoulos, instead, quit practicing medicine
altogether. That was his sole decision. Nobody told him he had to quit.
' Georgopoulos deposition I (July 26, 2007), p. 163-64.
2
This case is about one physician and the peer review process initiated by a hospital in
furtherance of quality healthcare. It involves no substantial constitutional question, nor does it
raise any issues of great general or public importance. Dr. Georgopoulos is simply disappointed
with the outcome and frustrated with the judicial system. The unique facts of this case, including
the application and interpretation of a federal statute as it relates to peer review proceedings
involving a single physician, present no basis for this Court to accept review.
STATEMENT OF THE CASE
Dr. Georgopoulos originally filed a Complaint in the U.S. District Court for the Northern
District of Ohio, Eastern Division, on June 7, 2006, alleging that Defendants-Appellees violated
Section 1 of the Sherman Antitrust Act and Section 4 of the Clayton Act, along with several
pendant state claims. The case was assigned to Judge David Dowd who declined to entertain
dispositive motions. On November 2, 2007 (one week before trial), the parties entered into a
Stipulation of Dismissal under Fed.R.Civ.P. 41(a)(1)(A)(ii), in which Appellant dismissed all
Federal and Ohio antitrust claims with prejudice, but dismissed without prejudice the remaining
state claims.
On October 30, 2008, Appellant, who obtained new and different counsel, re-filed a
Complaint in the Trumbull County Common Pleas Court alleging claims for breach of contract,
unfair competition, tortious interference with business relations, infliction of emotional distress,
defamation, request for declaratory relief on breach of contractual due process, and a request for
declaratory relief on the issue of HCQIA inununity.
ellees filed-a Mohoii for Summary juagmerfi rrrr ivlarch 1-8= 2010. nr, -Georgo}aou osApp-
filed a responsive brief on April 19, 2010. Appellees filed their Reply Brief on Apri128, 2010.
3
On May 3, 2010, the Trial Court issued an Order granting Appellees' Summary Judgment
Motion and dismissing the case. Dr. Georgopoulos, who parted ways with his second counsel
who represented him at the trial court level, filed an appeal pro se. The Eleventh District Court
of Appeals issued its opinion on June 27, 2011, affirming the judgment of the trial court.
STATEMENT OF FACTS
As presented in the record of the Trial Court? This case arises out of a professional peer
review action at St. Elizabeth Health Center in Youngstown, Ohio, that occurred in 2004. On
May 7, 2004, Dr. Georgopoulos, a cardiovascular surgeon who was not employed by St.
Elizabeth, performed a 3-vessel coronary artery bypass graft ("bypass" or "CABG") surgery on a
patient that lasted 22 hours and 45 minutes - more than six times the average operative time.
Two months earlier, Dr. Georgopoulos performed bypass surgery that resulted in extraordinary
blood loss.
These two cases, which raised concern about the quality of care Dr. Georgopoulos was
providing to patients, were brought to the attention of Defendant-Appellee, Clifford Waldman,
M.D., St. Elizabeth's Chief Medical Officer and non-defendant, Mounir Awad, M.D., a general
surgeon who chaired the Surgery Department of which Appellant was a member. Dr. Awad
consulted with Defendant-Appellee, Nicholas Cavarocchi, M.D., who was the Medical Director
of Cardiac Surgery. Dr. Cavarocchi stated that Dr. Georgopoulos' operative time and blood loss
appeared unacceptable.
Dr. Cavarocchi was concerned about patient safety.3 With this information, Dr. Awad
initiated a peer review invesfigahon by fhe Dep rtmentiutf SurgeD',wfxch he dete'-^!n''ne'uasa
2 The footnoted citations in Appellees' Brief are to exhibits to Appellees' Memorandum inSupport of their Motion for Summary Judgment, which was before the Trial Court.
3 Awad Affidavit, ¶14; Cavarocchi deposition, p. 88.
4
reasonable effort to obtain facts 4 Dr. Awad met with Appellant on May 20, 2004. Appellant
was given an opportunity to discuss the two cases under review.5 Dr. Awad determined that
further investigation was warranted, because the issues identified raised concern about patient
safety.6
Dr. Awad asked Dr. Georgopoulos to refrain voluntarily from performing CABG surgery
during the investigation as a precautionary measure to protect patient safety.7 Dr. Georgopoulos
voluntarily agreed to refrain from performing bypass surgery.8 None of Dr. Georgopoulos' other
clinical privileges were limited.9
St. Elizabeth, in a reasonable effort to obtain pertinent information related to quality and
patient safety, believed that it would be fair to have these two cases reviewed by an outside,
independent expert.10 They offered Dr. Georgopoulos the opportunity to suggest an outside
reviewer acceptable to him. Dr. Georgopoulos declined the invitation.
Dr. Waldman engaged Benjamin Sun, M.D., a cardiovascular surgeon at Ohio State
University Medical Center, to perform an independent and objective review. In his first report
dated June 8, 2004, Dr. Sun expressed concern about the length of Appellant's operative time
and extensive blood loss.' I
Given Dr. Sun's initial report, Dr. Awad believed it was necessary, appropriate and fair to
continue the Surgery Department's peer review investigation by sending Dr. Sun eight additional
Awad Affidavit, ¶15.Awad Affidavit, ¶18.
6 Awad Affidavit, ¶19.Awad Affidavit, ¶25.
$ Awad Affidavit, ¶28,9 Awad Affidavit, ¶27.lo Awad Affidavit, ¶¶ 20-22." Sun Affidavit, Exhibit 1 to ¶5.
5
cases to review in order to reasonably obtain additional facts, which he believed was in
furtherance of quality patient care.12
Dr. Sun's second report on June 29, 2004, confirmed the findings in the initial report that
Dr. Georgopoulos' operative time and blood loss were considerably outside the norm.13 Dr. Sun
recommended that Dr. Georgopoulos be observed to determine whether a problem with his
decision-making and surgical technique existed and, if so, to see what positive steps could be
taken to fix it14
On July 1, 2004, Dr. Awad and Dr. Waldman presented Dr. Sun's reports to Dr.
Georgopoulos, who disagreed with Dr. Sun's findings and recommendations.15 Dr.
Georgopoulos asked whether he could have these same 10 cases looked at by an outside reviewer
that he chose. Though not obligated to honor Dr. Georgopoulos' request, Dr. Waldman and Dr.
Awad agreed to do so in the spirit of fairness.16
Dr. Georgopoulos produced a letter, dated July 30, 2004, from Dr. Marc Gillinov of the
Cleveland Clinic, who opined that cardiac surgery should be judged only by outcomes and that
Dr. Georgopoulos' outcomes were acceptable." Significantly, Dr. Gillinov's letter did not
address potential issues with Dr. Georgopoulos' decision-making or surgical technique, which
Dr. Sun raised. Upon receipt of this letter, Dr. Georgopoulos demanded that he be able to
resume performing CABGs. 1$
-- -Awad Affidavit, ¶35.13 Sun Affidavit, Exhibit 2 to ¶7.14 Sun Affidavit, Exhibit 2 to ¶7.15 Awad Affidavit, ¶41.16 Awad Affidavit, ¶42." Awad Affidavit, ¶43.18 Awad Affidavit, ¶44.
6
Because of Dr. Georgopoulos' unwillingness to refrain from performing CABGs, and
based on the information they had, including reports from two reviewers (one concluding that
there may be a problem and one who believed his outcomes were acceptable), Dr. Awad and Dr.
Waldman believed they needed to transition the peer review investigation from the Department
of Surgery to the Medical Executive Committee.1y
The Medical Executive Committee considered Appellant's peer review matter when it
met at its next regularly scheduled meeting on August 10, 2004. The Medical Executive
Committee voted unanimously (with one abstention) to continue peer review by appointing a
formal Investigating Committee to conduct a thorough investigation and deliver a report and
recommendation.20 At no time did the Medical Executive Committee seek to revoke Dr.
Georgopoulos' Medical Staff inembership or clinical privileges, including his privileges to
perform CABGs.
Dr. Eugene Potesta, the President of the Medical Staff, appointed a three-person
Investigating Committee. He originally appointed John Jakubek, M.D. (an anesthesiologist),
Rashid Abdu, M.D. (a retired surgeon) and Ronald Mikolich, M.D. (chief of cardiology).
Appellant objected to Dr. Mikolich's participation. Dr. Potesta, though not obligated to replace
Dr. Mikolich, did so as a courtesy to Appellant. Dr. Potesta named Benjamin Hayek, M.D. (an
internist), as the third member of the Investigating Committee.21
The Investigating Committee met 13 times between August 19 and September 23, 2004.22
It interviewed 10 physicians, including Dr. Georgopoulos, Dr. Sun, and Dr. Gillinov. While Dr.
--Sun and Dr. Gillinov did not see eye-to-eye regar^ing the importance of operative Trme ana
19 Awad Affidavit, ¶46.20 Potesta Affidavit, ¶15.21 Potesta Affidavit, ¶16.ZZ Jakubek Affidavit, ¶17.
7
blood loss, they did agree, when interviewed, that Dr. Georgopoulos' technique of performing
extended arteriotomies and double-suturing were not typical, were not usually necessary, and
may prolong operative time, which could result in increased blood loss.Z3
The Investigating Committee also interviewed 6 nurses and perfusionsts (the technicians
who run the heart-lung bypass machine). It reviewed documents, including the reports written
by Dr. Sun and Dr. Gillinov (both based on a retrospective review of medical records), as well as
letters written by two referring cardiologists who supported Dr. Georgopoulos. It read articles
related to cardiac bypass surgery.24
On September 23, 2004, the Investigating Committee gave the Medical Executive
Committee its six-page report. Based on its interviews and review of documents, the
Investigating Committee unanimously recommended that a mutually agreeable board-certified,
actively practicing cardiothoracic surgeon directly observe Dr. Georgopoulos' technique in
surgery for a minimum of 6 CABGs.25 The Investigating Committee considered monitoring to
be the most appropriate way and least restrictive way to determine whether or not there was a
problem with Dr. Georgopoulos' surgical technique and to assure quality of care.26 The Medical
Executive Committee unanimously voted to accept the Investigating Committee's
recommendation that Dr. Georgopoulos be observed by a board-certified actively practicing
cardiothoracic surgeon for his next 6 bypass cases 27 The Medical Executive Committee took
23 Jakubek Affidavit, ¶31.24 Jakubek Affidavit, ¶¶18-23.ZS Jakubek Affidavit, ¶28.26 Jakubek Affidavit ¶30.27 Potesta Affidavit, ¶21.
8
this action in the reasonable belief that it was warranted by the facts obtained and that it was in
furtherance of quality health care and patient safety.28
St. Elizabeth secured the services of a board-certified actively practicing cardiothoracic
surgeon, who was willing to observe Dr. Georgopoulos. The Hospital agreed to pay the
independent observer for his time and to remain and be available at the Hospital, if necessary.29
Dr. Georgopoulos adamantly refused to be monitored or observed as part of peer
review.30 Rather than agree to peer review monitoring of only six cases, which could have been
completed expeditiously and if there were no problems found would have allowed Dr.
Georgopoulos to resume practice, Dr. Georgopoulos, instead, quit practicing altogether. Dr.
Georgopoulos closed his medical office in October, 2004.31 He dismissed his office assistant.3z
He allowed his medical malpractice insurance to lapse and his medical staff privileges to
expire.33 He has not practiced medicine in any capacity since May, 2004.34
Dr. Georgopoulos quit practicing medicine even before he requested a Medical Staff
Hearing to appeal the peer review action to monitor hnn. Dr. Georgopoulos admitted that St.
Elizabeth gave him proper notice of the Hearing and a description of the issues that would be
heard.35 He was given witness lists, and documents were exchanged.
The Hearing was conducted before a panel of three physicians, none of whom were in
economic competition with Dr. Georgopoulos.36 An independent attorney from Cleveland was
28 Potesta Affidavit, ¶21.29 Jakubek Affidavit, ¶27; Potesta Affidavit, ¶ 22.1- Georgopoulos deposition II (June 16 ,_109j, p: b 7.
31 Georgopoulos deposition I (July 26, 2007), p. 186.32 Georgopoulos deposition I (July 26, 2007), p. 190.33 Georgopoulos deposition I (July 26, 2007), p. 192.34 Georgopoulos deposition II (June 16, 2009), p. 4.35 Georgopoulos deposition II (June 16, 2009), p. 69.36 Georgopoulos deposition II (June 16, 2009), pp. 69-70.
9
appointed as Hearing Officer to preside over the Hearing, which was conducted in five sessions
totaling approximately 30 hours.37
Dr. Georgopoulos was represented by legal counsel at the Hearing.38 His counsel had the
opportunity to call witnesses.39 Dr. Georgopoulos' attorney had an opportunity to cross-examine
St. Elizabeth's witnesses, including Dr. Waldman and Dr. Sun.40 Dr. Georgopoulos testified
why he objected to being monitored.41 His counsel introduced documentary evidence and
submitted written statements at the end.4z
The Hearing Panel issued its opinion that "the MEC did act in good faith and made
appropriate recommendations based on the information that we understand to have been
presented to the MEC." The Panel went on to say that the Medical Executive Committee's
recommendation may not have been warranted based on the additional evidence presented at the
Hearing.43
The Hearing Panel's report went back to the Medical Executive Committee, which under
the Medical Staff Bylaws, was not bound by the Hearing Panel's findings. It had the option of
accepting, rejecting or modifying the Hearing Panel's report. Dr. Potesta distributed copies of
the Hearing Panel's report to each member of Medical Executive Conunittee. Dr. Potesta also
gave each member the opportunity to review the Hearing Transcript and exhibits 44
On September 7, 2005, the Medical Executive Committee, after careful review and
consideration, disagreed in part with the Hearing Panel. The Medical Executive Committee,
37 Potesta Affidavit, ¶25; Georgopoulos deposition II (June 16, 2009), p. 70.Georgopoulos deposition II une 16, 09j, p. 6`9:
39 Georgopoulos deposition II (June 16, 2009), p. 71.40 Georgopoulos deposition II (June 16, 2009), p. 71.41 Georgopoulos deposition II (June 16, 2009), p. 71.42 Georgopoulos deposition II (June 16, 2009), p. 72.43 Exhibit 10 to Potesta Affidavit, ¶26.44 Potesta Affidavit, ¶27.
10
acknowledging its good faith, believed it did have sufficient information to support its
recommendation to monitor Dr. Georgopoulos in furtherance of quality care and patient safety.
It unanimously voted to reaffirm its original September 23, 2004 recommendation to monitor Dr.
Georgopoulos out of an interest for patient care and to determine whether issues existed with his
decision-making and surgical technique 45 Dr. Potesta believes that action by the Medical
Executive Committee represented its reasonable belief that the monitoring was supported by the
facts and that it furthered health care and patient safety.46
The Board of Directors met on November 1, 2005 and unanimously voted to uphold the
Medical Executive Committee's recommendation to have Dr. Georgopoulos observed for six
cases in the interest of patient quality of care.
ARGUMENT IN OPPOSITION TO PROPOSITIONS OF LAW
Dr. Georgopoulos does not propose any propositions of law. However, he appears to
challenge the rulings of the lower courts which granted summary judgment based on the
immunity afforded by HCQIA for conducting peer review. Although this federal statute has
been applied and interpreted on a few occasions by Ohio courts, it would serve little purpose for
this Court to adopt a proposition of law for the future treatment of this statute. But even if this
Court were so inclined, this is not the case to make such a pronouncement given its highly fact-
specific nature.
HCQIA creates a rebuttable presumption of immunity under 42 U.S.C. §11112(a),
forcing a plaintiff to prove by a preponderance of evidence that the defendant hospital and peer
review participants did not take peer review action: (1)in-the reasonabie'melief thatii-was-rn
furtherance of quality healthcare; (2) after a reasonable effort to obtain facts; (3) after adequate
45 Potesta Affidavit, ¶¶28-29.46 Potesta Affidavit, ¶29.
11
notice and hearing procedures were afforded to the physician involved in peer review; and (4) in
the reasonable belief that the action was warranted by the facts known after such reasonable
effort to obtain facts.
Unlike the usual standard for sumrnary judgment, when HCQIA immunity is being
challenged, the plaintiffbears the burden of showing by a preponderance of evidence that those
engaged in peer review did not satisfy the statutory requirements. See, e.g., Moore v. Rubin, 11tn
Dist. No. 2001-T-0150, 2004-Ohio-5013, ¶ 21. It is not just a question of weight, but also one
regarding the quality of evidence that a plaintiff must produce. Courts uniformly hold that
evidence alleging that peer review defendants acted in "bad faith," or that the doctor under peer
review met the standard of care, or even evidence that the peer review action taken was wrong is
irrelevant and insufficient to rebut the presumption. See Reyes v. Wilson Memorial Hospital
(S.D. Ohio 1998), 102 F.Supp.2d 798.
Instead, those participating in peer review must be reviewed on an objective basis, i.e.,
whether, considering the totality of circumstances, there existed an objectively reasonable basis
for professional review activity and actions. This "reasonable belief' standard is met if the peer
reviewers, with the information available to them at the time of the professional review action,
would reasonably have concluded that their action would restrict incompetent behavior or protect
patients. Poliner v. Texas Health Systems (C.A.5, 2008), 537 F.3d 368, 378, citing Meyers v.
Columbia/HCA Healthcare Corp. (C.A.6, 2003), 341 F.3d 461, 468.
The "professional review activity" (defined by 42 U.S.C. §11151(10)) at St. Elizabeth
^^^ .-..began with the identification oT two oufCier cases ihatz;aii^a atierrticmtv-'.ong^perati:^`ti-==.°v a^A
significant blood loss. It continued with the investigation by the Department of Surgery, which
engaged an independent expert reviewer, Dr. Sun at Ohio State, to review 10 of Dr.
12
Georgopoulos' open heart cases. Dr. Sun expressed reasonable concern about Dr.
Georgopoulos' operative time, blood loss and suggested there may be possible problems with his
surgical technique and decision-making, which affect patient care and safety. Following the
Surgery Department's initial investigation, the professional review activity was continued by the
Medical Executive Committee, which appointed an Investigating Committee of disinterested
physicians who interviewed physicians, nurses and staff.
The Investigating Committee recommended that Dr. Georgopoulos be monitored and
directly observed by an independent cardiothoracic surgeon who would actually be in the
operating room for 6 open heart cases. The Medical Executive Committee accepted that
recommendation, and began, through the Hospital, to make arrangements to retain a qualified,
independent monitor, at the Hospital's expense.
Dr. Georgopoulos refused to be monitored. He, instead, quit practicing medicine. It is
incontrovertible that the two bypass surgery cases, which resulted in the initiation of the peer
review investigation, raised quality of care concerns. Dr. Georgopoulos, himself, can offer
nothing more than expressing subjective disagreement with, and ascribing ill motive to, those
who were involved in the peer review process, obdurately maintaining that he does not need to
be monitored. These subjective, solipsistic opinions have no evidentiary value whatsoever
toward overcoming the presumption that those participating in peer review acted with the
reasonable belief that they were furthering quality care.
The above facts, which were known to the peer reviewers at the time the action was
taken, objectively led them to conTudethafl5r: Georgopoulos shouia bemronitor for -casts.
Appellant's suggestion that St. Elizabeth could ignore these facts and sweep them under the rug
13
is inappropriate and dangerous and would not have furthered quality medical care. St. Elizabeth
would have opened itself up to a claim for negligent credentialing if it did nothing.
Dr. Georgopoulos also fails in his attempt to argue that a substantial constitutional
question exists. Although he claims that his due process rights were somehow violated, it was
uncontroverted before the trial court that Dr. Georgopoulos was afforded all of the procedural
rights in section 11112(b) of HCQIA. The Court of Appeals agreed and rejected Dr.
Georgopoulos' arguments that he was denied the right to call certain witnesses or that he was
deprived of a hearing before physicians who were not in economic competition with him."
Recently, the U.S. Court of Appeals for the Fifth Circuit in Poliner restated the policy
underlying HCQIA immunity and the reluctance by the judiciary to disturb decisions made by
hospital peer review committees and governing boards, which are responsible for credentialing
decisions and quality standards:
To allow an attack later upon the ultimate "truth" of judgments made bypeer reviewers supported by objective evidence would drain all meaningfrom the statute. The congressional grant of immunity accepts that fewphysicians would be willing to serve on peer review committee under such athreat; as our sister circuit explains, "the intent of [the HCQIAI was not to
disturb, but to reinforce, the preexisting reluctance of courts to substitutetheir judgment on the merits for that of health care professionals and thegoverning bodies of hospitals in an area within their expertise." At the least,it is not our role to re-weigh this judgment and balancing of interests by
Congress. 537 F.3d at 384-85.48
The Poliner decision is consistent with the lower courts' decisions and other Ohio cases
interpreting HCQIA. There is no conflict among Ohio courts that have applied HCQIA, nor is
there any great general or public interest that would be furthered by reviewing this case. Dr.
47 See Court of Appeals Opinion, at ¶¶116-121.48 This position echoes that of the Ohio Supreme Court, which in Khan v. Suburban Community
Hospital, held that "a court should not substitute its judgment for that of the hospital trustees'judgmenf' on matters of credentialing and peer review. 45 Ohio St. 2d 39 (1976).
14
Georgopoulos is simply upset with how the peer review process turned out for him. His personal
and subjective disagreement is not enough to warrant review by this Court.
CONCLUSION
It is essential for hospitals to be able to conduct effective peer review in order to assure
that physicians on their Medical Staffs remain currently competent to perform procedures
without subjecting patients to a risk of harm through substandard treatment. Nowhere is that
more important than when heart surgery is involved, especially when that surgery lasts nearly a
day rather than a few hours. Dr. Georgopoulos' subjective disagreement with the peer review
process in his case is not enough to overcome the presumption of immunity under HCQIA and
does not raise an issue of great general or public interest to warrant review by this Court.
Dr. Georgopoulos fails to present any issues of law for this Court to review or that would
justify impinging upon a hospital's ability to conduct effective peer review. Accordingly,
Appellees respectfully request that this Court refuse jurisdiction over this matter.
Respectfully submitted,
BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP
Jo J. Feltes (#0014970)"poSstin S. Greenfelder (#0077924)
4518 Fulton Drive N.W.Canton, Ohio 44718Tel. (330) 492-8717Fax (330) [email protected]
Counsel for Defendants-Appellees
15
PROOF OF SERVICE
A copy of this Memorandum in Opposition to Jurisdiction has been sent by regular U.S.
'f1.^mail on this I r" day of August, 2011 to the following:
George A. Georgopoulos, M.D.5742 Logan Ann DriveGirard, OH 44420Plaintiff-Appellant, Pro Se
/^ooseph J. Feltes #00 14970Justin S. Greenfelder #0077924Counsel for Defendants-Appellees
aCT2:681243 vl»
16
