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Chang v. Rehabilitation Hospital of Pacific

United States District Court, D. Hawaii

July 31, 2019

JASON C. CHANG, M.D. Plaintiff,
v.
THE REHABILITATION HOSPITAL OF THE PACIFIC; TIMOTHY J. ROE, M.D.; STEPHEN M. OISHI, M.D.; JANE and/or JOHN DOES 1-25, and DOE ENTITIES 1-10, Defendants.

          AMENDED ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION, ECF NO. 3

          MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On July 16, 2019, Plaintiff Jason C. Chang, M.D. (“Chang”), filed a Complaint for Declaratory and Injunctive Relief against Defendants the Rehabilitation Hospital of the Pacific (the “Hospital”), Timothy J. Roe, M.D. (“Roe”) and Stephen M. Oishi, M.D. (“Oishi”) (collectively, “Defendants”), arising from the summary suspension of Chang's medical staff privileges at the Hospital. ECF No. 1. The Complaint alleges violations of federal and state constitutional due process rights, federal and state law, and the Hospital's bylaws. See id.

         Currently before the court is Chang's Motion for Preliminary Injunction (the “Motion”). ECF No. 3. The Motion seeks an order enjoining Defendants from summarily suspending Chang's medical staff privileges at the Hospital[1] and from reporting Chang's summary suspension to the National Practitioners Data Bank (“NPDB”). See Id. Based on the following, the court DENIES the Motion.

         II. BACKGROUND

         A. Factual Background[2]

         As of early 2019, Chang, a physician, was employed as the Chief Medical Officer at the Hospital. He was also a member of the Hospital's medical staff with privileges at the Hospital, which meant that Chang could see his own patients at the Hospital separate from his Hospital employment. The Medical Executive Committee (“MEC”) governs the medical staff at the Hospital, including conducting peer review of medical staff members.

         1.The Medical Staff Bylaws

         As a member of the Hospital's medical staff, Chang agreed to be bound by the Medical Staff Bylaws.

         a. Investigations

         The Medical Staff Bylaws provide that an investigation must be initiated when “reliable information indicates a member may have exhibited acts, demeanor, or conduct reasonably likely to be: 1) detrimental to patient safety or to the delivery of quality patient care within the Hospital; 2) unethical; 3) contrary to the Medical Staff bylaws, rules, and/or policies and procedures.” Medical Staff Bylaws ¶ 8.2.1. But, “[d]espite the status of any investigation, at all times the [MEC] retains its authority and discretion to take whatever actions may be warranted by the circumstances including summary suspension . . . .” Id. ¶ 8.2.3 (emphasis added).

         Upon completion of the investigation, a report must be provided to the MEC. Id. ¶ 8.2.3. “If corrective action is being contemplated, the member shall be notified in writing by the [MEC] or its designee that an investigation is being conducted, and the member shall be given an opportunity to provide information in a manner and upon such terms, as the investigating panel deems appropriate.” Id. After conclusion of the investigation, the MEC may recommend (among other options) suspension of clinical privileges and medical staff membership. Id. ¶ 8.2.4. If suspension is recommended, then the practitioner is entitled to procedural rights, and the practitioner must be given notice of the adverse recommendation and of the right to a formal hearing. Id. ¶ 8.2.6.

         b. Summary suspension

         The Medical Staff Bylaws provide that, at any time (even prior to the completion of an investigation), the MEC may “summarily suspend the Medical Staff member of all or any portion of the clinical privileges of such practitioner” if “a practitioner's conduct violates these Bylaws or other hospital policies or whenever conduct requires immediate action to be taken to reduce a substantial likelihood of imminent danger to the health or safety of any patient, employee or other person present in the Hospital.” Id. ¶ 8.3.1. “The practitioner has a right to attend the meeting and make a statement on such terms and conditions of the summary suspension as the [MEC] may impose.” Id. But that meeting does not constitute a hearing with procedural protections. Id.

         After the summary suspension becomes effective, the practitioner must be notified that he or she has a right to MEC review as described above, with the additional requirements that the corrective action investigation must be completed within thirty days, and a hearing must be commenced within sixty days after the practitioner requests it. Id.

         2. Disruptive Practitioners Policy

         The MEC adopted a Disruptive Practitioners Policy, which provides that:

When a practitioner's conduct disrupts the operation of the hospital, affects the ability of others to get their jobs done, creates a “hostile work environment” for hospital employees or other practitioners on the medical staff, or begins to interfere with the practitioner's own ability to practice competently, action must be taken.
Disruptive behaviors, depending on the nature and severity, may require immediate action, including summary suspension.
All credentialed providers will be managed through the Medical Staff Bylaws and Policies. . . .

         Disruptive Practitioners Policy, Section I. Policy.

         3. The Allegations and the Hospital's Subsequent Actions

         In March 2019, two Hospital employees brought complaints against Chang to Human Resources. Neither of these employees were physicians. Those employees worked in a department at the Hospital (the “Department”).[3] Employee #1 alleged that Chang engaged in inappropriate conduct towards her and Employee #2. Employee #2 filed her own complaint, which alleged that Chang engaged in sexual harassment against her. Within a few weeks of making the allegations, both employees were put on administrative leave. In late-March, the Hospital hired Susan Ichinose (“Ichinose”), a Honolulu attorney, to conduct an independent investigation of the allegations. The Department was closed on April 15, 2019 because a temporary replacement could not be found for Employee #2-she was still on administrative leave and had specialized training essential to running the Department.

         On April 25, 2019, Oishi, President of the MEC, notified Chang that he was placed on restrictions and directives pursuant to the Medical Staff Bylaws based on the allegations. On May 3, 2019, Chang was notified that he had violated those restrictions and directives. On May 10, 2019, Ichinose interviewed Chang with his attorney present.[4] On May 24, 2019, the MEC unanimously approved the appointment of an Ad ...


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