May 19, 2019

Archives for September 11, 2012

Tenth Circuit: Hospital Immune Under Health Care Quality Improvement Act from Physician’s Claims; Record Insufficient to Support Physician’s Antitrust and Tort Claims

The Tenth Circuit Court of Appeals published its opinion in Cohlmia v. St. John Medical Center on Friday, September 7, 2012.

Plaintiff, Dr. George Cohlmia, a surgeon, performed two surgeries at St. John Medical Center (SJMC or hospital). One surgery resulted in death, the other in permanent disfigurement. After hospital review and formal hearing, SJMC suspended and ultimately terminated Dr. Cohlmia’s privileges. Before his initial suspension, Dr. Cohlmia explored opening a specialty heart hospital. The specialty heart hospital failed to attract any investors.

Dr. Cohlmia filed a complaint alleging violations of federal antitrust laws, violation of the Oklahoma state antitrust law, and tortious interference with a contract.

After discovery, SJMC moved for summary judgment on all claims, as well as its affirmative defense of immunity pursuant to the Health Care Quality Improvement Act (HCQIA). The district court granted all motions for summary judgment. Dr. Cohlmia appealed.

On appeal, Dr. Cohlmia challenged the district court’s grant of HCQIA immunity.  HCQIA provides immunity to hospitals or doctors who perform peer reviews or challenges to professional conduct where patient care is at issue. The entity or persons that undertake the professional review are immune as long as they substantially comply with a list of objective standards set forth in the Act. A professional review action is presumed to have met the standards for HCQIA immunity unless the presumption of regularity is rebutted by a preponderance of the evidence. The district court concluded that no reasonable jury could find that Dr. Cohlmia had overcome the presumption. The Tenth Circuit agreed.

Having found that the hospital’s actions fell within the grant of immunity by HCQIA, the Tenth Circuit next determined the scope of that immunity. HCQIA grants immunity only against a monetary damage award. In his complaint, the doctor also sought injunctive relief and reinstatement of his staff privileges. Therefore, the Tenth Circuit was required to review the merits of the doctor’s federal and state claims.

Federal Claims

First, the doctor claimed that his exclusion from the marketplace resulted in an antitrust injury. The Tenth Circuit agreed with the district court’s assessment of the record that there was no credible evidence from which to infer an antitrust injury.

Second, the doctor argued the hospital had a sufficient market share to show monopoly power in violation of federal antitrust laws. The Tenth Circuit agreed that the hospital’s market share of less than 20% was woefully short under any metric from which to infer market power.

Dr. Cohlmia’s final federal claim alleged the hospital conspired to block his specialty heart hospital.  The Tenth Circuit found the doctor’s claims speculative at best, and agreed with the district court that granting summary judgment to the hospital was proper on this claim.

State Claims

Under the Oklahoma Antitrust Reform Act, it is unlawful for any person to monopolize, attempt to monopolize, or conspire to monopolize any part of trade or commerce in a relevant market.  Because the record did not support that the hospital had monopoly power, the doctor’s state law claim failed for the same reason his federal antitrust claim failed.

The doctor further argued the district court erred in dismissing his tortious interference with contract claims: patient contracts and insurance contracts. Since the relationship between physician and patient is at-will, there is no contract, so that claim failed. As to insurance contracts, Dr. Cohlmia failed to provide evidence of economic damages with Blue Cross/Blue Shield.  Accordingly, this claim failed as well.

Dr. Cohlmia’s finally claimed that the hospital wrongfully interfered with his medical practice. Because Dr. Cohlmia’s expert report relied on economic projections that were speculative at best, the district court did not err in concluding that state law required more evidence to support a damage award.

Based on the foregoing, the Tenth Circuit AFFIRMED the district court’s grants of summary judgment.

Tenth Circuit: Postconviction Discovery Motion Does Not Toll Statute of Limitations for Filing Certificate of Appealability Application

The Tenth Circuit Court of Appeals published its opinion in Woodward v. Clline on Friday, September 7, 2012.

In 1991, applicant David Woodward pleaded guilty in Kansas state court to kidnapping, two counts of sexual exploitation of a child, rape, indecent liberties with a child, and felony murder. In 1994, he filed a motion requesting DNA testing for the purpose of his exoneration. It was unclear to the Court whether that motion was ever ruled upon. After filing various motions in state court in the intervening years, in 2011, Woodward filed in federal district court a certificate of appealability (COA) application alleging the COA one-year statute of limitations had not run because no court had ever ruled on his motion requesting DNA testing from 1994. Because the Tenth Circuit held that a postconviction discovery motion does not toll the limitations period for filing a COA § 2254 application, the Court denied the application for a COA and dismissed the appeal.

Tenth Circuit: Unpublished Opinions, 9/7/12

On Friday, September 7, 2012, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Firth v. Shoemaker

Vargas v. Miller

Cambbell v. Singh

Elrod v. Walker

Vos v. Turley

Wyttenbach v. Parrish

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Supreme Court: Attorney Sanction Reversed; Board Erroneously Concluded that It Lacked Discretion and Was Compelled to Impose Public Censure

The Colorado Supreme Court issued its opinion in In the Matter of Attorney F on September 10, 2012.

Attorney and Client—Office of Attorney Regulation—Discipline—Public Censure.

The Supreme Court reversed the Hearing Board’s (Board) sanction in this attorney discipline proceeding because the Board erroneously concluded that it lacked discretion in choosing a sanction and was compelled by the Court’s case law to impose a public censure. The Court remanded the case for a redetermination of the appropriate sanction so that the Board may exercise its discretion. The Court affirmed the Presiding Disciplinary Judge’s order denying respondent attorney’s motion to compel removal of the publication of the Board’s disposition posted on the Office of Attorney Regulation Counsel’s website, because the information posted complies with the Court’s rules of procedure regarding attorney discipline proceedings.

Summary and full case available here.

Colorado Supreme Court: Loss of Use Damages in Commercial Setting Measured by Actual Lost Profits or by Reasonable Rental Value

The Colorado Supreme Court issued its opinion in Koenig v. PurCo Fleet Services, Inc. on September 10, 2012.

Calculation of Damages.

The dispute in this case arose out of a rental car contract between petitioner Judith Koenig and National Car Rental at the Durango Airport (National). Koenig hit a deer while driving a rental vehicle. After the accident, National assigned its damage claim to PurCo Fleet Services, Inc. (PurCo). PurCo sued Koenig to collect damages related to the incident, including damages for loss of the vehicle’s use during the time it was being repaired. PurCo sought to measure loss of use damages by using the reasonable rental value of a substitute vehicle. Koenig filed a motion for summary judgment, which the trial court granted, holding that PurCo could prevail on its loss of use damages claim only if it suffered actual lost profits. The court of appeals reversed the trial court’s summary judgment and remanded the case. It agreed with the trial court’s conclusion that, in general, the appropriate measure of loss of use damages in a commercial setting is actual lost profits, but concluded that the rental agreement in this case altered the measure of loss of use damages. Accordingly, PurCo was required to show certain loss prerequisites.

The Supreme Court affirmed the court of appeals’ judgment on different grounds. The Court held that under Denver Building & Construction Trades Council v. Shore, 287 P.2d 267 (Colo. 1955), loss of use damages in a commercial setting may be measured either by actual lost profits or by reasonable rental value. PurCo is entitled to recover loss of use damages regardless of its actual lost profits. The Court vacated the court of appeals’ judgment with respect to loss of use damages and loss prerequisites. Because the trial court granted summary judgment in Koenig’s favor, it did not reach the question of how reasonable rental value would be calculated in this case. Accordingly, the case was remanded for calculation of the reasonable rental value of a substitute vehicle.

Summary and full case available here.

Colorado Supreme Court: Trial Court Erred in Suppressing Statements; Failed to Consider and Properly Apply Totality of Circumstances Factors

The Colorado Supreme Court issued its opinion in People v. Pittman on September 10, 2012.

Suppression—Miranda—Custodial Interrogation—Totality of the Circumstances.

The Supreme Court reversed the trial court’s order suppressing statements made by Dianeth Pittman in response to police interrogation without a Miranda advisement. Specifically, the trial court failed to consider and properly apply the totality of the circumstances factors and make proper findings regarding those factors as required by People v. Thiret, 685 P.2d 193, 203 (Colo. 1984), and People v. Algien, 180 Colo. 1, 7, 501 P.2d 468, 471 (1972). Accordingly, the trial court erred by suppressing Pittman’s statements.

Summary and full case available here.

Colorado Supreme Court: CU Regents’ Termination of Churchill’s Employment Was a Quasi-Judicial Proceeding; Reinstatement Would Harm Academic Integrity

The Colorado Supreme Court issued its opinion in Churchill v. University of Colorado at Boulder on September 10, 2012.

Unlawful Termination Violating Free Speech Rights—42 USC § 1983—Absolute and Qualified Immunity—Quasi-Judicial Proceedings—Equitable Relief.

The Supreme Court affirmed the court of appeals and the trial court, both of which held that Professor Ward Churchill was not entitled to any of the remedies he sought. Churchill brought a claim under 42 USC § 1983, claiming that the University of Colorado at Boulder (CU) Board of Regents (Regents) opened an investigation into his academic integrity in retaliation for the publication of a controversial essay, and that the investigation and resulting termination of his employment violated his free speech rights.

The proceedings against Churchill took more than two years and included several opportunities for Churchill to present witnesses, cross-examine adverse witnesses, and argue his positions. The Court held that the Regents’ termination of Churchill’s employment was a quasi-judicial proceeding, and that the Regents are entitled to absolute immunity.

The Court also affirmed the trial court’s ruling denying Churchill request to be reinstated and to receive front pay. The trial court accepted as fact that the Regents’ investigation found that Churchill had plagiarized his academic writings, fabricated evidence, and violated the school’s academic standards. The trial court ruled that reinstating Churchill would not be appropriate because the relationship between Churchill and CU was irreparably damaged. Reinstating Churchill, the trial court ruled, would harm CU’s ability to enforce its standards of academic integrity and could impair CU’s ability to attract good students and faculty. The trial court’s rulings and findings did not constitute an abuse of its discretion and the rulings were affirmed.

Summary and full case available here.