FILED
NOT FOR PUBLICATION FEB 03 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD B. FOX, M.D., No. 10-15989
Plaintiff - Appellant, D.C. No. 5:04-cv-00874-RS
v.
MEMORANDUM *
GOOD SAMARITAN HOSPITAL LP, a
Delaware limited partnership;
SAMARITAN, LLC, a Delaware limited
liability company; HCA, INC., a Delaware
corporation; WILLIAM PICHE; PAUL N.
BEAUPRE, M.D.; ARTHUR W.
DOUVILLE, M.D.; MARK S.
MCCONNELL; KENNETH I. TAN,
M.D.; GOOD SAMARITAN HOSPITAL,
Defendants - Appellees.
RICHARD B. FOX, M.D., No. 10-16701
Plaintiff - Appellee, D.C. No. 5:04-cv-00874-RS
v.
GOOD SAMARITAN HOSPITAL,
Medical Staff; GOOD SAMARITAN
HOSPITAL LP, a Delaware limited
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
partnership; SAMARITAN, LLC, a
Delaware limited liability company; HCA,
INC., a Delaware corporation; WILLIAM
PICHE; PAUL N. BEAUPRE, M.D.;
ARTHUR W. DOUVILLE, M.D.; MARK
S. MCCONNELL; KENNETH I. TAN,
M.D.,
Defendants - Appellants.
Appeal from the United States District Court
for the Northern District of California
Richard G. Seeborg, District Judge, Presiding
Argued and Submitted June 17, 2011
San Francisco, California
Before: PREGERSON and MURGUIA, Circuit Judges, and SINGLETON, Senior
District Judge.**
Plaintiff-Appellant Richard Fox (“Fox”) appeals the district court’s grant of
summary judgment to Defendant-Appellees Good Samaritan Hospital and related
persons and entities (collectively “Good Samaritan”). Good Samaritan also cross-
appeals the district court’s denial of its motion for costs. We have jurisdiction
under 28 U.S.C. § 1291.
**
The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court of Alaska, sitting by designation.
2
We are troubled that Good Samaritan waited six years to assert immunity
under the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. §§
11101–11152, even though it was available to them at the outset of the litigation.
This failure resulted in nearly six years of costly discovery and multiple rounds of
motion practice. We are also troubled that Good Samaritan affirmatively decided
not to follow the HCQIA’s requirement that it report Fox’s suspension to the
National Practitioner Data Bank. 42 U.S.C. § 11133(a)(1). Nevertheless, we find
that the HCQIA grants immunity for Good Samaritan’s suspension of Dr. Fox, and
affirm on that claim. We also affirm the district court’s denial of Good
Samaritan’s motion for costs.
The district court held that Good Samaritan was immune from damages
under the HCQIA. A hospital is entitled to HCQIA immunity for any
“professional review action,” 42 U.S.C. § 11111, taken “based on the competence
or professional conduct of an individual physician,” id. § 11151(9), so long as the
hospital afforded the physician adequate procedural protections, see id. § 11112(a).
Although the parties agree that Fox’s competence was never at issue, Fox disagrees
with Good Samaritan’s contention that issues relating to Fox’s professional
conduct justified revoking Fox’s privileges at Good Samaritan.
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First, Fox argues that Good Samaritan is collaterally estopped from arguing
that Fox’s professional conduct was ever at issue. But the California Court of
Appeal’s earlier decision in related litigation made no reference to Fox’s
professional conduct whatsoever. That court held that Good Samaritan’s
suspension action “was quasi-legislative and therefore no hearing was required.”
See Fox v. Good Samaritan Hosp., 2003 WL 21675515, *5-6 (Cal. Ct. App. Jul.
18, 2003). The California court determined that it was Dr. Fox’s “noncompliance
with the policy, . . . that resulted in his privileges being suspended.” See id. at *6.
Fox’s claim for judicial estoppel likewise fails. Although Good Samaritan
argued in state court that its suspension action was quasi-legislative rather than
adjudicatory in nature because its action was the result of the “implementation of a
policy,” id. at *5 (quoting Hay v. Scripps Mem’l Hosp., 183 Cal. App. 753, 758
(1986)), rather than “misconduct,” Fox cannot claim judicial estoppel because
Good Samaritan’s characterization of its decision as quasi-legislative, as opposed
to adjudicatory, was not clearly inconsistent with its position that the decision
implicated Fox’s professional conduct. See New Hampshire v. Maine, 532 U.S.
742, 750 (2001) (holding, as a threshold matter, that for judicial estoppel to apply,
“a party’s later position must be ‘clearly inconsistent’ with its earlier position”
(citation omitted)).
4
Next, Fox claims that Good Samaritan’s failure to report Fox’s suspension to
the National Practitioner Data Bank, as required by 42 U.S.C. § 11133(a)(1),
forecloses HCQIA immunity. Fox is incorrect because failure to report only
forecloses immunity if the Secretary of Health and Human Services publishes the
hospital’s name in the Federal Register, which did not happen here. See id. (“A
health care entity . . . shall lose the protections of section 11111(a)(1) of this title if
the Secretary publishes the name of the entity under section 11111(b) of this
title.”).
Fox further argues that his professional conduct could not have motivated
Good Samaritan’s decision because the underlying dispute concerned a policy
disagreement, and not his professional conduct. However, the rule Fox violated
clearly required Fox to designate alternates with privileges “identical” to his own,
and it is undisputed that his designated alternates did not have identical privileges.
A doctor’s failure to comply with a rule of the hospital where he practices
unquestionably implicates his professional conduct, whether or not he agrees with
the rule.
Finally, Fox claims Good Samaritan failed to offer him “adequate notice and
hearing procedures . . . as are fair to the physician under the circumstances.” 42
U.S.C. § 11112(a)(3). Hospitals are presumed to have offered adequate procedures
5
unless the party challenging the procedures can prove otherwise. See id. §
11112(a). Although Good Samaritan did not offer Fox a formal administrative
hearing, such a hearing was not necessary under the unique circumstances of Fox’s
case. Fox does not dispute the fact that he failed to designate alternates with
“identical” privileges, as required by the hospital’s rules. A formal hearing geared
toward resolving factual disputes would therefore have done nothing to help Fox’s
case or aid Good Samaritan’s decision-making. Rather, because Fox’s
disagreement was with the substance of the alternate call coverage rule—and not
his noncompliance with the rule—Good Samaritan offered him the opportunity to
challenge the rule in informal hearings before the Executive Committee and the
Board of Trustees. Given the situation, the hearings Fox received were “fair to the
physician under the circumstances.” Id. § 11112(a)(3).
With regard to the district court’s denial of Good Samaritan’s motion for
costs, we hold that the district court did not abuse its discretion. While the
prevailing party is presumed to be entitled to costs under Federal Rule of Civil
Procedure 54(d)(1), the district court has broad discretion to deviate from that
presumption, so long as it “explain[s] why [the] case is not ‘ordinary’ and why, in
the circumstances, it would be inappropriate or inequitable to award costs.” Ass’n
of Mex.-Am. Educators v. California, 231 F.3d 572, 592-93 (9th Cir. 2000) (en
6
banc). Here, the district court explained that although HCQIA immunity was
available to the defendants at the outset of the litigation, the defendants failed to
assert it until after nearly six years of costly discovery and multiple rounds of
motion practice. The district court further noted that none of these costs or the
time expended would have been necessary had the defendants raised HCQIA
immunity in a timely manner. In light of the district court’s thorough explanation
of the unusual nature of this case, there are no grounds for believing that the
district court abused its discretion.1
AFFIRMED.
1
Appellant’s February 26, 2011 Request for Judicial Notice is denied.
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