UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1360
PHYLLIS M. BRASWELL, Administrator of the
Estate of W. Kelley Braswell, M.D.,
Plaintiff - Appellant,
versus
HAYWOOD REGIONAL MEDICAL CENTER,
Defendant - Appellee,
and
HARRY LIPHAM, M.D.; ERIC REITZ, M.D.; DEBERA
HUDERLY, M.D.; LUIS MUNOZ, M.D.; DAVID
PETERSON, M.D.; CHRISTOPHER WENZEL, M.D.;
RICHARD STEELE, M.D.,
Defendants.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:04-cv-00092)
Argued: February 2, 2007 Decided: April 26, 2007
Before WIDENER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: John Boling Meuser, Raleigh, North Carolina, for Appellant.
William Carleton Metcalf, Philip J. Smith, VAN WINKLE, BUCK, WALL,
STARNES & DAVIS, P.A., Asheville, North Carolina, for Appellee. ON
BRIEF: Allison Serafin, LAW OFFICES OF JOHN MEUSER, P.A., Raleigh,
North Carolina, for Appellant. Carolyn L. Coward, VAN WINKLE,
BUCK, WALL, STARNES & DAVIS, P.A., Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
W. Kelley Braswell, M.D. (now deceased) filed this suit
against the state-owned Haywood Regional Medical Center (the
Hospital) and seven individual doctors after the Hospital suspended
his medical privileges in 2003. (Although the administrator of
Braswell’s estate has been substituted as the plaintiff-appellant,
we will, for sake of clarity, use Braswell’s name throughout this
opinion.) Braswell, who had medical privileges at the Hospital,
alleges that his privileges were revoked in retaliation for
exercising his First Amendment rights and that the summary
suspension of his privileges violated his due process and
contractual rights. We affirm the district court’s order granting
summary judgment to the defendants. We treat Braswell as a public
employee and conclude that his speech was not protected because the
Hospital’s duty to provide quality health care outweighed his
interest in expressing concerns about the Hospital’s efforts to
recruit surgeons. Further, we conclude that the Hospital
reasonably believed that quick action was necessary to protect
patient safety, thus justifying the summary suspension of
privileges.
I.
Because the district court granted the defendants’ motion
for summary judgment, we state the facts in the light most
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favorable to the non-movant, Braswell, drawing all reasonable
inferences in his favor. Seabulk Offshore, Ltd. v. Am. Home
Assurance Co., 377 F.3d 408, 418 (4th Cir. 2004). Braswell, a
partner at the privately owned Midway Medical Center, was one of
four surgeons in Haywood County, North Carolina. The other three
general surgeons, Drs. Reitz, Sharpton, and Sufian, maintained
separate practices but shared office space and expenses. All four
surgeons had medical privileges at the Hospital, a state-owned
facility, which permit them to perform operations at the Hospital’s
facilities. In return, the doctors must be on call for the
Hospital, which requires them to be available at certain times to
treat patients admitted to the emergency room. The doctors’
relationship with the Hospital is governed by the Medical Staff
Bylaws.
In 2000 Braswell recruited Dr. Dearl Birdsong, another
general surgeon, to join Midway Medical. Haywood County’s other
three surgeons offered a position to Dr. Larry Herberholz. The
Hospital, which had previously determined that the county could
support 1.8 additional surgeons, facilitated these efforts by
offering both candidates recruitment contracts. The contracts
provided incentives (guaranteed income, relocation allowance, and
education matching loan allowance) to encourage the doctors to
practice in Haywood County.
4
In January 2001, before either of the candidates signed
contracts with the Hospital, Braswell sent Herberholz a letter
stating:
I have some concerns about bringing two surgeons to this
area at the same time. Counting outmigration we only
have a county population of about 40,000. That is a
pretty small group for 6 general surgeons to maintain an
active practice.
J.A. 295. Braswell also sent a letter to the chairman of the
Hospital’s finance committee, which he enclosed with his letter to
Herberholz. This letter repeated his concerns about bringing two
additional surgeons to the county:
I have polled a sample of the medical staff and none feel
that 6 general surgeons are needed in this county. Of
the 4 general surgeons who are currently in the county
only one feels that 6 general surgeons are needed here.
I think that we will be doing a significant disservice to
both of these individuals if both are brought here. In
addition this may represent a nearly half million-dollar
blunder by the hospital in terms of [financial]
guarantees which cannot be met.
J.A. 296. Herberholz subsequently accepted an offer outside of
Haywood County.
The Hospital’s Board of Commissioners (the Board)
expressed its displeasure that Braswell sent the letter to
Herberholz with the knowledge that the Hospital had decided to
recruit two general surgeons. (Braswell was a member of the task
force that determined that Haywood County could support 1.8
additional surgeons.) Several members of the Board told Braswell
that “this type of conduct would sabotage [the Hospital’s]
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recruiting process if one practice could call a recruitment
candidate of another practice and sway the candidate’s placement
decision.” J.A. 301.
Braswell contends that the Hospital immediately started
to retaliate against him. On February 22, 2001, the Board decided
to “table further discussions” of its ongoing contract negotiations
with Birdsong.* J.A. 300. According to Braswell, the three
surgeons in the competing practice refused to assist him in surgery
or to take calls for him when he had scheduling conflicts, and Dr.
Lipham, the Hospital’s Chief of Staff at the time, became “openly
hostile.” J.A. 17. In July 2000 the Board also denied Braswell’s
application for privileges to perform laparoscopic gastric bypass
surgery, concluding that the procedure was too dangerous to be
performed at the Hospital.
The first significant adverse employment action against
Braswell occurred at the end of 2002. On December 2, 2002,
Braswell performed a standard gastric bypass surgery on Patient F.
The patient suffered severe post-operative complications, including
renal failure, shock, and sepsis. Several doctors who consulted on
the case determined that there was a risk of death and recommended
that Braswell transfer the patient to a better-equipped facility.
*
The Hospital, however, eventually voted to offer Birdsong a
recruiting contract on April 26, 2001. Birdsong worked in Haywood
County until mid-2003, although it is unclear which practice he was
associated with. J.A. 273.
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Braswell refused. On December 14, Dr. Nancy Freeman, the
Hospital’s Chief of Staff confronted Braswell about Patient F and
insisted that he transfer the patient. Braswell “graced [Freeman]
with some expletives” during the conversation. J.A. 196.
As a result of Patient F’s experience, Freeman placed a
moratorium on all gastric bypass surgeries at the Hospital. She
also created the Gastric Ad Hoc Committee to review all gastric
bypass surgeries performed over the past two years. Six days
later, before the Gastric Ad Hoc Committee completed its review of
the past bypass surgeries, the Medical Executive Committee (MEC)
voted to suspend indefinitely Braswell’s privileges to perform the
gastric bypass procedure. The MEC decided to lift the general
moratorium because the problem with gastric bypass surgeries was
“physician specific.” J.A. 329.
On January 14, 2003, the Gastric Ad Hoc Committee
presented its review of the gastric bypass surgeries over the past
18 months (3 surgeries by Sharpton and 19 by Braswell) to the MEC.
The committee reported minor concerns with all of the surgeries.
It also reported major concerns in eight of Braswell’s surgeries
and one of Sharpton’s surgeries. Braswell was not present for the
committee’s presentation, nor was he provided with a copy of its
findings. After the committee reported its findings, the MEC
questioned Braswell about the surgeries. It then voted unanimously
to continue the suspension of Braswell’s gastric bypass privileges.
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The MEC also created the General Ad Hoc Committee to review
Braswell’s major surgical procedures in the upcoming months.
The General Ad Hoc Committee met with the MEC on May 6,
2003, to discuss its review of Braswell’s major surgeries over the
past three months. It reported concerns over Braswell’s care of
Patient H, who had been transferred to another hospital due to
complications arising from a bowel surgery. The MEC decided to
schedule a special meeting on May 27, 2003, to discuss the General
Ad Hoc Committee’s concerns.
Before the meeting could take place, however, the MEC
voted to suspend summarily all of Braswell’s surgical privileges.
The vote was prompted by a letter sent by the Surgical Case Review
Committee (SCRC), which had also reviewed Patient H’s file. (The
SCRC regularly reviews the files of patients who have unexpected
complications with a surgical procedure.) The SCRC expressed the
following concerns with Braswell’s care of Patient H: (1) stool
began to drain from the patient after the surgery; (2) Braswell did
not respond in a timely manner to the Hospital staff’s repeated
attempts to notify him of Patient H’s problems; (3) rather than
taking Patient H immediately back to surgery, Braswell ordered a CT
scan; and (4) Braswell refused to consult with Pulmonary or
Internal Medicine despite requests by the attending nurses. The
Hospital’s President, David Rice, officially suspended Braswell’s
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privileges on May 21, 2003. Braswell did not have an opportunity
to defend himself before the suspension went into effect.
The MEC met with Braswell a week later to discuss his
care of Patient H. Braswell admitted that he should have taken the
patient back to surgery but denied that the patient was ever in
danger. The MEC stated that Braswell “appear[ed] not to understand
the severity of the concerns in this case.” J.A. 376. It also
expressed concern that the “problems seen in this case were the
same type of problems that had been addressed with Dr. Braswell at
his prior meeting with the MEC.” J.A. 377. The MEC unanimously
voted to continue the suspension of Braswell’s privileges.
Braswell then requested a Fair Hearing Committee to
review the Hospital’s decision. Braswell was represented by
counsel at the hearing, which lasted approximately 20 hours over a
three-day period in October and November 2003. Braswell’s chief
witness, Dr. Jesse Meredith, a professor of surgery at Wake Forest
University, testified that the MEC’s assessment of Braswell’s
performance was faulty. She stated, “I believe this is a situation
in which people, committees, who are not knowledgeable about the
issues at stake here, were asked to make judgment about the
patients which [sic] were at stake here.” J.A. 40-41. At the end
of the hearing, the Hearing Committee concluded:
[T]here [were] legitimate and serious concerns regarding
Dr. Braswell’s preoperative assessment and postoperative
management of the cases presented during the
hearing. . . .
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However, it appears to this committee that Dr.
Braswell was not afforded ample opportunity to respond to
the allegations made prior to the summary
suspension. . . .
The committee acknowledges that the MEC acted in
good faith and with the intention of protecting patients,
however, we are concerned by the apparent lack of
appropriate documentation by the hospital as required by
the bylaws.
J.A. 48. The report concluded that the “evidence did not support
summary suspension, and that other avenues of corrective action
. . . could have been investigated by the Medical Executive
Committee prior to summary suspension.” Id. Despite the Fair
Hearing Committee’s conclusion, the MEC again voted to continue the
suspension of Braswell’s privileges. The Appellate Review
Committee affirmed the MEC’s decision, which was adopted by the
Hospital’s Board.
Braswell then sued the Hospital and the seven members of
the MEC in the United States District Court for the Western
District of North Carolina. Braswell brought claims under 8 U.S.C.
§ 1983 for First Amendment retaliation and violations of his right
to due process. He also brought state law claims for defamation,
breach of contract, and tortious interference with contractual
relations. The district court dismissed the tortious interference
claim and later granted summary judgment to the defendants on the
remaining claims. Braswell appeals the district court’s grant of
10
summary judgment on his two § 1983 claims and his state law breach
of contract claim.
We consider each of Braswell’s three claims, beginning
with the First Amendment retaliation claim. Summary judgment is
appropriate only if there is no genuine issue as to any material
fact and the defendants are entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). Our review is de novo. Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir.
2004) (en banc).
II.
Braswell claims that the Hospital, a state actor,
violated his First Amendment rights by retaliating against him for
expressing his concern to Herberholz that Haywood County could not
support two new surgeons. Braswell contends that the decision to
postpone contract negotiations with his recruit (Birdsong), the
suspension of his gastric bypass privileges, and the termination of
his surgical privileges were motivated by the Hospital’s
displeasure with his constitutionally protected speech.
The First Amendment protects not only the affirmative
right to speak, but also the “right to be free from retaliation by
a public official for the exercise of that right.” Suarez Corp.
Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). To establish
a claim of First Amendment retaliation, a plaintiff must show that
11
(1) he engaged in protected First Amendment activity; (2) the
defendant took action that adversely affected his First Amendment
rights; and (3) there was a causal relationship between the
protected speech and the adverse action. Id. at 686.
To decide whether Braswell’s speech is protected, we must
first determine whether Braswell is a public employee for purposes
of the First Amendment. The government may impose certain
restraints on the speech of its employees, and take action against
employees for speaking on certain matters, that would be
unconstitutional if applied to the general public. City of San
Diego v. Roe, 543 U.S. 77, 80 (2004). This limited exception to
the First Amendment’s general prohibition on interference with
speech exists because “[g]overnment employers, like private
employers, need a significant degree of control over their
employees’ words and actions.” Garcetti v. Ceballos, 126 S. Ct.
1951, 1958 (2006).
Braswell argues that as a partner of the privately owned
Midway Medical Center, he is not a public employee. He received no
remuneration from the Hospital and his only connection to the
Hospital was his “privilege[] to admit patients and to perform
certain medical procedures.” Appellant’s Br. at 19. These
privileges, he asserts, do not make him a public employee.
The Supreme Court has rejected the agency law definition
of “employee” that Braswell proposes. The government’s legitimate
12
reasons for regulating its employees’ speech apply equally to
independent contractors. See Bd. of County Comm’rs v. Umbehr, 518
U.S. 668, 677-78 (1996). In Umbehr the Supreme Court explained:
“The similarities between government employees and government
contractors with respect to [the First Amendment] is obvious. The
government needs to be free to terminate both employees and
contractors . . . to improve the efficiency, efficacy, and
responsiveness of service to the public.” Id. at 674. Thus, the
Court held that the “existing framework for government employee
cases [should be applied] to independent contractors.” Id. at 677.
Braswell, like all staff doctors, is essentially an
independent contractor for the Hospital. See Smith v. Cleburne
County Hosp., 870 F.2d 1375, 1381 (8th Cir. 1989) (stating that
the relationship between staff doctors and hospitals has
“similarities to that of an employer-employee relationship”); Caine
v. Hardy, 943 F.2d 1406, 1415-16 (5th Cir. 1991) (treating staff
doctor as employee for First Amendment analysis). Hospitals and
staff doctors have reciprocal obligations. In return for the
privilege to use the Hospital’s facilities, staff doctors are
required to be on call for certain periods each month and help with
various administrative functions. Staff doctors consult with other
doctors and assist in performing surgeries, and hospitals may be
held jointly and severally liable for their tortious conduct. See
Smith, 870 F.2d at 1381. Indeed, a patient admitted to the
13
emergency room would not know the difference between staff doctors
and doctors on the hospital payroll. Thus, because Braswell is
similar to an independent contractor, we must treat him as a public
employee in analyzing his First Amendment claim. See Umbehr, 518
U.S. at 677.
When a public employee speaks “as a citizen upon matters
of public concern,” Connick v. Myers, 461 U.S. 138, 147 (1983), we
must balance “the interests of the [employee] . . . and the
interest of the State, as an employer, in promoting the efficiency
of the public services it performs through its employees.”
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see also
Garcetti, 126 S. Ct. at 1958 (stating that employees “must face
only those speech restrictions that are necessary for their
employers to operate efficiently and effectively”). After
conducting this balancing, we agree with the district court that
Braswell’s letter was not protected speech. Although Braswell has
an interest in expressing concerns about the manner in which the
state-owned hospital operates, the Hospital has a greater interest
in regulating speech that interferes with its core mission. To
meet the medical needs of Haywood County, the Hospital, like all
hospitals in more sparsely populated areas, must devote extra
effort to recruiting physicians. Accordingly, the Hospital has a
significant interest in preventing staff doctors from interfering
with the Hospital’s recruiting efforts. The Hospital also has an
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important interest in maintaining a collegial atmosphere. As
stated above, doctors must frequently consult with each other and
assist in performing surgeries. Braswell’s actions negatively
affected his relationship with his colleagues and thus impacted his
ability to provide quality care to patients at the Hospital. See
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 317 (4th
Cir. 2006) (considering whether employee’s speech “impaired harmony
among coworkers” or “damaged close personal relationships”).
For all of these reasons, we conclude that Braswell’s
letter was not protected speech. Therefore, Braswell cannot
establish a claim of First Amendment retaliation. See Suarez, 202
F.3d at 686.
III.
Braswell argues that the Hospital violated his due
process rights when it summarily suspended his privileges to
perform gastric bypass surgeries in December 2002 and his remaining
surgical privileges in May 2003. He states that the Hospital was
constitutionally required to provide him notice of the allegations,
and an opportunity to defend himself, before suspending his medical
privileges. Because Braswell does not argue that the post-
deprivation procedures were insufficient, we must only decide
whether a pre-deprivation hearing was constitutionally required
under the circumstances.
15
“Due process is flexible and calls for such procedural
protections as the particular situation demands.” Gilbert v.
Homar, 520 U.S. 924, 930 (1997). Although due process generally
requires an opportunity to be heard prior to the deprivation of a
property interest, Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 542 (1985), it is well established that a pre-deprivation
hearing is not required in all circumstances. See North Am. Cold
Storage Co. v. City of Chicago, 211 U.S. 306 (1908) (confiscating
potentially contaminated food without hearing); Gilbert, 520 U.S.
924 (suspending police officer who was arrested on drug charges).
“[W]here a State must act quickly, or where it would be impractical
to provide predeprivation process, postdeprivation process
satisfies the requirements of the Due Process Clause.” Gilbert,
520 U.S. at 930. Thus, the Hospital did not violate Braswell’s
constitutional rights if the summary suspension of his privileges
was necessary to protect patient safety. See Patel v. Midland Mem.
Hosp. & Med. Cen., 298 F.3d 333, 340 (5th Cir. 2002) (holding that
summary suspension of cardiologist’s clinical privileges did not
violate due process because doctor’s “methods posed a danger to
patient safety”); Caine, 943 F.2d at 1412-15 (holding that
suspension of anesthesiologist’s clinical privileges before formal
hearing was held was constitutional).
In the present case, the Hospital had good reason to
conclude that quick action was necessary to protect patient safety.
16
The MEC suspended Braswell’s gastric bypass surgeries after
Braswell’s patient, Patient F, was transferred to another hospital
in critical condition. The Chief of Staff’s (Freeman’s)
investigation of the incident revealed that Patient F suffered
renal failure, shock, and sepsis after the operation; Braswell
refused to transfer the patient to a better equipped facility
despite the patient’s deteriorating condition and requests by other
physicians; and Braswell took the patient back into surgery without
the aid of surgical assistants. In addition to these clinical
errors, Braswell showed poor judgment by cursing at Freeman when
she ordered the patient transferred to another facility.
The second deprivation occurred in May 2003 when the
Hospital revoked all of Braswell’s surgical privileges. Again, the
Hospital had sufficient reason to believe that this action was
necessary to protect the public. A review of Braswell’s gastric
bypass surgeries showed numerous deficiencies in his standard of
care, including several failures to staple properly the patient’s
stomach, two failures to conduct a pregnancy test prior to the
operation, and “innumerable documentation failures.” J.A. 354.
The General Ad Hoc Committee also reported a continued pattern of
poor documentation and serious problems with Braswell’s pre- and
post-operation care, which resulted in one patient being
transferred to another hospital in critical condition. Finally,
the SCRC stated that there was “an extremely disturbing trend of
17
young, otherwise healthy patients going very badly post operatively
with nurses being unable to locate Dr. Braswell.” J.A. 36. The
SCRC added, “We have already seen too many otherwise healthy
individuals that have come through the committee that have had near
life threatening complications when treated by Dr. Braswell and
inappropriate recognition and care.” J.A. 37.
We conclude that the MEC, based on the information before
it, had reasonable grounds for suspending Braswell’s privileges
without first providing him an opportunity to be heard.
Accordingly, there was no due process violation.
IV.
For similar reasons, we reject Braswell’s claim that the
Hospital breached its contract by failing to follow the privilege
suspension procedures set forth in the bylaws. Because the
Hospital’s decision is protected by immunity under the Health Care
Quality Improvement Act (HCQIA), 42 U.S.C. § 11101 et seq.,
Braswell cannot succeed on his breach of contract claim.
The HCQIA provides immunity for “professional review
actions,” see § 11111(a), that are taken:
(1) in the reasonable belief that the action was in
the furtherance of quality health care,
(2) after a reasonable effort to obtain the facts of
the matter,
(3) after adequate notice and hearing procedures
. . . or after such other procedures as are fair to the
18
physician under the circumstances, and
(4) in the reasonable belief that action was
warranted by the facts known after such reasonable effort
to obtain facts and after meeting the requirement of
paragraph (3).
Id. § 11112(a). The HCQIA also creates a presumption that action
taken by a professional review committee meets these criteria. Id.
§ 11112(a)(4). Braswell cannot overcome this presumption. First,
the Hospital believed that it was acting in furtherance of quality
health care. As the Fair Hearing Committee stated, there were
“legitimate and serious concerns” about Braswell’s care, and the
MEC acted in “good faith and with the intention of protecting
patients.” J.A. 48. Second, the Hospital made a reasonable effort
to obtain relevant information. It created committees to review
Braswell’s gastric bypass surgeries and, subsequently, all of his
major surgical procedures. Braswell’s treatment of Patient F was
also reviewed by the Surgical Case Review Committee. Finally, as
we described in part III, the procedures provided to Braswell were
fair under the circumstances, and the Hospital acted with the
reasonable belief that quick action was necessary to protect the
safety of the patients.
V.
For the foregoing reasons, we affirm the district court’s
order granting summary judgment to the defendants.
AFFIRMED
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