[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 13, 2012
No. 10-15496
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:08-cv-00466-JA-GJK
RAYMOND H. PIERSON, III,
M.D.,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
JOANNE R. WERNTZ,
M.D.,
llllllllllllllllllllllllllllllllllllllll Intervenor Plaintiff - Appellant,
versus
ORLANDO REGIONAL HEALTHCARE SYSTEMS, INC.,
et al.,
lllllllllllllllllllllllllllllllllllllll Defendants,
ROGER MURBACH,
STEVEN APPLEBLATT,
FRANK BONE,
WILLIAM BOTT,
THOMAS CSENCSITZ,
M.D.'s, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 13, 2012)
Before TJOFLAT, BARKETT and SMOAK,* Circuit Judges.
PER CURIAM:
Raymond Pierson, MD, an orthopedic surgeon, appeals the dismissal of
most counts in his amended complaint and third amended complaint against
defendant Orlando Health f.k.a. Orlando Regional Healthcare System, Inc.1
(“ORHS”), and various physicians2 alleging a multitude of causes of action3
*
Honorable Richard Smoak, United States District Judge for the Northern District of
Florida, sitting by designation.
1
ORHS is a non-profit private health care network that serves central Florida, which is
comprised of and does business through its seven healthcare facilities in central Florida,
including Orlando Regional Medical Center (“ORMC”) and Dr. Phillips Hospital (“Sand Lake
Hospital”).
2
Pierson sued the following physicians or representatives of the estates of deceased
physicians: Eric Lieberman (as the personal representative of Dr. Spiegel), Dr. Murbach, Dr.
Applebatt (ORHS staff), Dr. Bone (ORHS staff), Dr. Bott (ORHS staff), Dr. Csencsitz (ORHS
staff), Dr. Cole (ORHS staff), Dr. Hillenmeyer (President and Chief Executive Officer of
ORHS), Dr. Moser (ORHS staff), Dr. Diebel (ORHS staff), Dr. Evans (ORHS staff), Dr.
Galceran (ORHS staff), Dr. Rivero (ORHS staff), Dr. Gordon (ORHS staff), Dr. Sanders (ORHS
staff), Mr. Rief and Ms. Parks (co-personal representatives of the estate of John Connolly, M.D.),
Dr. Wolfram (ORHS staff). In addition, Pierson sued Wolverine Anesthesia Consultants M.D.,
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arising from the hospital’s investigation of complaints regarding his emergency
room usage lodged against Pierson by nurses, technicians, and physicians at
ORHS’s hospitals. The district court granted summary judgment against Pierson
on his remaining claim for breach of contract, his claim that ORHS should not
have enjoyed immunity under the Health Care Quality Improvement Act, and his
claim for declaratory relief related to the adverse activity report made to the
National Practitioner Data Bank (NPDB), which Pierson also appeals. Joanne R.
Werntz, Pierson’s wife at the time, also sued for loss of consortium as a result of
P.A., which at all times relevant to the complaint had an exclusive medical provider contract
with ORHS to provide anesthesiology services to ORMC and Sand Lake Hospital and
Musculoskeletal Institute, a corporation doing business in the state of Florida. Pierson also sued
the United States of America and various other federal and state agencies alleging constitutional
violations.
3
The third amended complaint had eleven counts: Count 1 – Breach of Contract
(ORHS), Count 2 – Defamation, Libel, Slander (ORHS, Murbach, Bott, Csencsitz, Connolly,
Evans, Galceran, Bone, Rivero, Appleblatt, Spiegel, Hillenmeyer), Count 3 – Fraud (ORHS),
Count 4 – Fraud (ORHS, Hillenmeyer), Count 5 – Intentional Infliction of Emotional Distress
(Murbach, Bott, Csencsitz, Connolly, Evans, Galceran, Bone, Rivero, Appleblatt, Spiegel,
Hillenmeyer, Moser, Wolfram, Diebel), Count 6 – Negligent Hiring and Supervision of Those
Conducting the SHAM Review (Murbach, Bott, Csencsitz, Connolly, Evans, Galceran, Bone,
Rivero, Appleblatt, Spiegel, Hillenmeyer, Moser, Wolfram, Diebel), Count 7 – Request for
Declaratory and Injunctive Relief, Count 8 – Civil Conspiracy, Conspiracy to Defame (Murbach,
Bott, Csencsitz, Connolly, Evans, Galceran, Bone, Rivero, Appleblatt, Spiegel, Hillenmeyer,
Moser, Wolfram, Diebel, Cole), Count 9 – Civil Conspiracy to Breach the Bylaws (Bott,
Connolly, Evans, Bone, Rivero, Moser, Diebel), Count 10 – Civil Conspiracy (Murbach, Bott,
Csencsitz, Connolly, Evans, Galceran, Bone, Rivero, Appleblatt, Spiegel, Hillenmeyer, Moser,
Wolfram, Diebel, Cole Sanders), Count 11 – Civil Conspiracy, Conspiracy to Defraud (Murbach,
Bott, Connolly, Evans, Galceran, Bone, Rivero, Appleblatt, Spiegel, Wolfram). The First
Amended Complaint alleged antitrust claims in count 1 and constitutional claims requesting
declaratory relief in counts 14 through 18.
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these complaints and subsequent investigation. The district court dismissed this
claim as well and Pierson argues that if any of his claims are reinstated, her
consortium claim should also be reinstated.
The complaints consisted of concerns that Pierson (1) took an excessive
length of time completing his surgeries; (2) scheduled surgery at inappropriate
times; (3) delayed dictating operative notes; and (4) treated elective surgeries as
urgent or semi-urgent cases. The hospital’s medical staff established an
investigative committee to assess the complaints. After the committee conducted
a preliminary review, and pending further independent review of Pierson’s charts
by Dr. Phillip Spiegel, the former Chairman of Orthopedic Surgery at the
University of South Florida Medical School and the editor of an orthopedic trauma
journal, Pierson was removed from the trauma and emergency call list. The
committee then reviewed the lengthy written submissions of both Pierson and
Spiegel and concluded that there was a factual basis for the concerns expressed by
Pierson’s colleagues. Pierson rejected the committee’s opinion and requested a
hearing, which was held over a six day period before a hearing panel of three
surgeons. Pierson presented witnesses and introduced exhibits. At the conclusion
of the hearing, the hearing panel found that certain of the concerns expressed were
valid and encouraged the hospital to work with Pierson to give him an opportunity
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to correct the deficiencies. However, Pierson refused to recognize any validity to
the concerns expressed and refused to modify any of the practices in question.
Following an appeal process of the hearing panel’s recommendations, the
ORHS board affirmed the appeal panel’s recommendations, and the board filed an
adverse action report with the NPDB. The report was required under the Health
Care Quality Improvement Act, 42 U.S.C. § 11133(a)(1)(A).
ORHS told Pierson that it would restore him to the trauma and emergency
call list if he would demonstrate that he was willing to live within the hospital’s
policies and protocols, which apply to all the orthopedic surgeons on staff at its
hospitals. Pierson was unwilling to do so and instead moved to California in
mid-2004. Almost four years later, he brought this litigation.
We have reviewed the record and considered the oral argument of counsel
and find no reversible error as to the summary judgment awarded or as to the
dismissal of claims, pursuant to Fed. R. Civ. P. 12(b)(6). The district court
carefully analyzed every claim raised by Pierson and correctly applied the law.
AFFIRMED.
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