Staffing privilege dispute results in suit against hospital, fellow physicians

By Lawrence Smith | Jan 8, 2009


HUNTINGTON – A Mason County family physician is alleging that officials at Pleasant Valley Hospital conspired to harm his ability to practice medicine by revoking his staffing privileges without justification.

The suit raises similar allegations a Charleston surgeon leveled at the state's largest hospital resulting in a multi-million verdict in his favor last year.

On Dec. 22, Dr. Danny R. Westmoreland filed suit in federal court against Pleasant Valley Hospital. In his complaint and suit, filed with the assistance of Robert W. Bright, with the Story Law Office in Pomeroy, Ohio, Westmoreland alleges PVH via its credentialing committee, "caused the unlawful non-renewal and/or revocation of [his] medical staff appointment privileges" without cause.

According to court records, Westmoreland, who operates Westmoreland Family Care Center in Mason, received a letter from PVH signed by Dr. Fredric E. LaCarbonara that he did not meet the requirements for renewal of privileges.

In the letter, LaCarbonara did not outline any plan how Westmoreland could meet the requirements, but instead gave him the option to resign or have his privileges terminated.

LaCarbonara's letter, records show, came 2 ½ months before Westmoreland's privileges were set to formally expire on Dec. 31, 2007. According to PVH's bylaws, privileges are renewed every two years.

Days before the expiration, PVH requested a reappointment assessment on Westmoreland from Dr. M.C. Shah, PVH's chief of medicine. Shah's report, records show, gave Westmoreland a "superior" rating in his abilities as a physician.

Despite the report, which Westmoreland was unaware of until September, PVH did not renew his privileges. Not having privileges "prevented [Westmoreland] from fully and completely treating his patients" starting Jan. 1, 2008.

In his suit, Westmoreland alleges that LaCarbonara, along with Drs. John A. Wade, Shrikant K. Vaidya and Joe Doe Physicians "and/or their employees/agents were involved in various discussions and votes regarding the termination" of privileges. Because they "were and are direct competitors of Plaintiff Westmoreland," Wade, LaCarbonara, Vaidya and John Doe Physicians, who are named as co-defendants in the suit, "acted in concert and/or conspiracy to unlawfully revoke the Plaintiff's medical staff appointment privileges."

Records show on May 22, PVH reinstated Westmoreland's privileges retroactive to Jan. 1. The reinstatement came after extensive negotiations between attorneys for both sides.

Westmoreland's suit makes claims for breach of contract, denial of due process, anti-trust, tortious interference with both his clients and business and damage to professional reputation.

Among other things, Westmoreland alleges the defendants "intentionally and deliberately" not only advised his patients to terminate their medical relationship with him, but also refused to provide them access to their medical records. Also, the non-renewal of his privileges had the effect of causing Holzer Hospital in Gallipolis, Ohio to back away from a deal to buy his practice as well as put on hold his ability to start a Soboxin clinic which has to be administered under the supervision of a hospital.

In addition to unspecified compensatory and punitive damages, Westmoreland is seeking both a preliminary injunction to prohibit the defendants from further interfering with his client and business relationships and a cease and desist order from any further acts of retaliation.

Similar claims

Westmoreland's suit comes almost a year after Dr. R. E. Hamrick Jr., a vascular surgeon, won a $25 million verdict against Charleston Area Medical Center. Though CAMC stated a reason for taking Hamrick's privileges away, he, like Westmoreland, alleged the effect not only damaged his professional reputation, but also played politics with his patient's lives.

According to court records, Hamrick was notified by Dr. Elizabeth Spangler, CAMC's vice-president for medical affairs on Sept. 10, 2004 that his clinical privileges would be revoked the next day unless he presented valid professional medical liability insurance.

Later that day, Hamrick faxed Spangler a copy of his self-insured $1 million insurance policy that he was told was approved by the executive committee of the hospital's medical staff.

The medical staff executive committee, records show, unanimously approved the plan on Sept. 9. Ten days earlier, CAMC's Board of Trustee's executive committee said it would give Hamrick's plan serious consideration only after the medical staff approved.

Also, Hamrick alleged Aug. 31, Dr. Mary Lou Lewis, CAMC's chief of staff, said his privileges would not be revoked.

However, on Sept. 11, Dr. Glenn Crotty, CAMC's chief operating officer, notified Hamrick his privileges had been revoked. Though records show the reason was for not having liability insurance, Hamrick alleged Crotty gave no reason why CAMC was reusing to consider the self-insurance plan as valid.

Because he had no privileges, Hamrick had to cancel many surgeries including "carotid stroke prevention and cancer surgeries, where the health of the patient is at stake."

Much like Westmoreland, Hamrick alleged that the hospital failed to follow the guidelines set forth in its manual on the proper steps to revoke a doctor's privileges. Also, he was not "afforded the opportunity to be heard" thus setting the stage for a lawsuit.

On Sept. 13, 2004, with the assistance of his sister, Karen Hamrick Miller, with the Charleston law firm of Miller, Snyder, Weiler and Walters, Hamrick filed a motion for preliminary injunction in Kanawha Circuit Court. In addition to asking CAMC be prohibited from revoking his privileges, Hamrick asked Judge Tod J. Kaufman, who was assigned the case, to order CAMC to follow its procedures and award him damages for their conduct.

After Kaufman denied Hamrick's motion, he appealed to the state Supreme Court who reinstated his privileges four days later. Nearly 3.5 years later on Feb. 7, 2008, after two weeks of trial, a jury awarded Hamrick $5 million in compensatory damages and $20 million in punitive damages as punishment for CAMC's "fraudulent, malicious, oppressive, wanton, willful or reckless conduct."

Following the verdict, CAMC petitioned Webster Circuit Judge Jack Alsop, who'd been appointed to hear the case after all Kanawha Circuit judges recused themselves, for a new trial, which he denied. However, he felt the damage award was much too big and reduced it to $10 million, $2 million compensatory and $8 million punitive.

In August, CAMC's Board of Trustees decided to forgo an appeal and pay Hamrick $11.5 million, the amount of the reduced award plus 8.5 percent interest that had accumulated since the verdict was rendered.

A call to PVH spokeswoman Amy Leach concerning Westmoreland's suit was not returned by presstime. The case has been assigned to U.S. District Judge Chuck Chambers.

U.S. District Court for the Southern District of West Virginia, Case No. 08-cv-1444

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