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Brandner v. Bateman

Supreme Court of Alaska

May 15, 2015

MICHAEL D. BRANDNER, M.D., Appellant,
v.
TIMOTHY BATEMAN, M.D., RONALD CHRISTENSEN, M.D., STEVEN L. FLOERCHINGER, M.D., JEREMY GITOMER, M.D., and TERRY OLIVAS, M.D., Appellees

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Patrick J. McKay, Anchorage, Judge. Superior Court No. 3AN-13-07697 CI.

Richard W. Maki and David H. Shoup, Tindall Bennett & Shoup, P.C., Anchorage, for Appellant.

Robert J. Dickson and Christopher J. S lottee, Atkinson, Conway & Gagnon, Anchorage, for Appellees.

Before: Fabe, Chief Justice, Winfree, Stowers, and Bolger, Justices. [Maassen, Justice, not participating.].

OPINION

Page 1069

BOLGER, Justice.

I. INTRODUCTION

Dr. Michael Brandner's hospital privileges at Providence Alaska Medical Center were terminated after he violated hospital policy by failing to disclose an order from the Alaska State Medical Board that he undergo an evaluation of his fitness to practice medicine. Dr. Brandner appealed to the hospital's Fair Hearing Panel and Appellate Review Committee, but the termination was upheld. Dr. Brandner filed suit against the hospital and several doctors involved in the termination proceedings, alleging breach of contract and denial of due process. The superior court granted summary judgment in favor of the individual doctors because they are immune from suit. We affirm.

II. FACTS AND PROCEEDINGS

A. Facts

Dr. Michael Brandner had hospital privileges at Providence Alaska Medical Center (Providence) since 1995. He took a medical leave of absence from September 2009 to March 2010 due to a cardiac condition. When he returned to work his hospital privileges " were reinstated with the exception of hand surgery, and a six-month exemption from call duties." He was also subject to a one-year prospective review of his surgical cases. Reinstatement of his hand surgery privileges was delayed pending a two-year retrospective review of his hand surgery cases. The review found him competent to continue with hand surgery.

Later in 2010 the Alaska State Medical Board (Medical Board) investigated Dr. Brandner after receiving a report that he had threatened an employee in the Governor's office concerning a child support matter. The Medical Board ordered him to submit to psychiatric and medical evaluations within 45 days " to determine his ability to practice medicine in a manner consistent with public safety." Dr. Brandner was evaluated at the Menninger Clinic in Texas and found fit to practice.

Page 1070

Doctors who have privileges at Providence are required to comply with policies set out in the Providence Code of Conduct and Medical Staff Bylaws. Providence Policy MS 980-150 requires doctors to report to the chief of staff or the manager of the medical staff services department " any limitations, restrictions[,] or conditions of any sort imposed by a state board, health care entity[,] or agency with respect to the practitioner's practice . . . no later than thirty (30) days after a final order has been issued." The policy states that a violation of this reporting requirement will result in automatic termination of hospital privileges. The body responsible for overseeing doctors' compliance with these policies is the Medical Staff Executive Committee. The executive committee makes recommendations to the Providence Alaska Community Ministry Board (Providence Board), which has the ultimate authority to make decisions regarding hospital privileges.

Dr. Brandner attended the January 2011 executive committee meeting to discuss confusion regarding his call duties. The executive committee was concerned about Dr. Brandner's " disjointed" statements at the meeting. The executive committee " elected to hold another meeting in February to determine whether an investigation should be undertaken to determine Dr. Brandner's fitness to practice medicine at [Providence]." According to Dr. Steven Floerchinger, a member of the executive committee, Dr. Brandner's " 'rambling and confused' behavior at the February meeting" was cause for concern. Consequently, the executive committee ordered Dr. Brandner to undergo an evaluation at the Menninger Clinic.

Upon receiving this order Dr. Brandner contacted Kim Pakney, Providence's manager of medical staff services, to inform her that he had already been evaluated at Menninger. According to Pakney, Dr. Brandner indicated that he had done so of his own volition at the suggestion of his cardiac surgeon, without mentioning the order from the Medical Board. Dr. Brandner disputes this characterization of his conversation with Pakney; he testified that he told her that he went to Menninger " to pursue some things." After informing Pakney he had already been evaluated at Menninger, Dr. Brandner signed a release so the executive committee could obtain his records. When she reviewed the records, Pakney realized the evaluation had been conducted pursuant to an order from the Medical Board.

At its June 2011 meeting, the executive committee voted to recommend termination of Dr. Brandner's hospital privileges because he had failed to report the Medical Board's order that he submit to an evaluation. The executive committee determined the Medical Board's order was a " final order" that imposed a condition on Dr. Brandner's license. Accordingly, Dr. Brandner had violated Providence Policy MS 980-150 when he failed to report the order to the chief of staff or the manager of the medical staff services department within 30 days.

The Providence Board affirmed the executive committee's recommendation. Dr. Brandner received a letter from Providence's chief executive officer in June 2011 notifying him that the executive committee " recommended the automatic termination of [hospital] privileges and staff membership" and that he had the right to a hearing. The letter also stated that the ...


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