IN THE SUPERIOR
COURT OF WASHINGTON
IN AND FOR THE COUNTY
OF YAKIMA
|
DIANA P.
SMIGAJ, M.D. and CASCADE WOMEN'S HEALTHCARE ASSOCIATES, P.L.L.C.,
Plaintiffs,
v.
YAKIMA VALLEY
MEMORIAL HOSPITAL ASSOCIATION, RICHARD W. LINNEWEH, JR., ROGER ROWLES, M.D. and CARL OLDEN, M.D.,
Defendants. |
|
COMPLAINT FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION, PERMANENT INJUNCTION, DECLARATORY
JUDGMENT AND DAMAGES
|
COMPLAINT
Diana
P. Smigaj, M.D. and Cascade Women’s Healthcare Associates, P.L.L.C., the Plaintiffs, by and through their counsel of
record, Robert N. Meals (of the Law Office of Robert N. Meals) and Lawrence Cock (of Cable, Langenbach, Kinerk & Bauer,
LLP), file this complaint and state as follows:
///
I.
PARTIES
1.
Plaintiff Diana P. Smigaj, M.D. (“Plaintiff” or “Dr. Smigaj”)
is an individual who resides and practices medicine in Yakima County, Washington. She
is a board-certified Obstetrician and Gynecologist (“Ob/Gyn”) who practices primarily obstetrics and maternal-fetal
medicine. Her private medical practice offers obstetrical and maternal-fetal
medicine services to female patients in Yakima County, Washington and the surrounding region.
2.
Plaintiff Cascade Women’s Healthcare Associates, P.L.L.C. (“CWHA”)
is a Washington Professional Limited Liability Corporation incorporated on July 3, 2000.
Dr. Smigaj is the only member of CWHA.
3.
Defendant Yakima Valley Memorial Hospital Association is a Washington nonprofit
corporation that operates Yakima Valley Memorial Hospital (“YVMH”) in Yakima, Washington. OB/Gyn physicians who practice with wholly owned subsidiaries owned or controlled by YVMH compete directly
with plaintiffs.
4.
Defendant Richard W. Linneweh, Jr. (“Linneweh”) is the President and
Chief Executive Officer of Yakima Valley Memorial Hospital, a position he has held for over 30 years.
5.
Defendant Roger Rowles, M.D. (“Rowles”) is physician who practices
Obstetrics and Gynecology in Yakima, Washington. His office is located at 3030
Tieton Drive, Suite 240, Yakima, Washington. Dr. Rowles is the Chairman of the
“Perinatal Quality Assurance Committee” at YVMH and is paid by the hospital to be the Medical Director of Obstetrical
(“Ob”) Services at YVMH. The Perinatal QA Committee includes Dr.
Rowles, Dr. Jonathan Johns, and Dr. Michael Jach, all of whom are male physicians who practice obstetrics and who are in direct
economic competition with Plaintiffs.
6.
Defendant Carl Olden, M.D. (“Olden”) is a physician who practices
Family Medicine and Obstetrics in Yakima, Washington. He is the YVMH Medical
Staff Quality Director and an employee of Pacific Crest Family Medicine, an entity controlled by YVMH. His office is in the same administrative suite at YVMH as Defendant CEO Linneweh and Mr. Linneweh’s
Chief Assistant, Ms. Kay Anyan, whose title is Director of the Medical Staff Office.
Dr. Olden is directly or indirectly a paid YVMH administrator who controls the quality assurance process at YVMH. He is also in direct economic competition with Plaintiffs. Although he is not a voting member of the Perinatal QA Committee, Dr. Olden usually attends its meetings
and directs its proceedings.
II. JURSIDICTION
AND VENUE
7.
The court has subject matter jurisdiction under RCW 2.08.010 because it is a court
of general subject matter jurisdiction.
8.
Venue is proper in Yakima County Superior Court pursuant to RCW 4.12.025 because
defendants Yakima Valley Memorial Hospital, Linneweh, Rowles and Olden all transact business in Yakima County, Washington.
III. SUMMARY OF FACTS AND CAUSES OF ACTION
9.
This case involves a professional assassination attempt by Yakima Valley Memorial
Hospital (“YVMH”) and certain individuals against Diana Smigaj, M.D., a double board-certified physician with
over 13 years experience in Obstetrics & Gynecology and Maternal-Fetal Medicine; first by conspiring to summarily suspend
all her clinical privileges for twelve days between September 4 and September 16, 2008 based on her treatment of three patients
in February, June and August 2008 in which there was no reasonable clinical basis to do, in violation
of the medical staff bylaws; and second, by subsequently attempting to publish information about the wrongful suspension to
third-party payors even after the Medical Executive Committee at YVMH met on September 16, 2008 and unanimously recommended
that her privileges be reinstated immediately because the committee determined there was no justification to impose the suspension
in the first place.
10.
YVMH took this drastic action
notwithstanding the fact it had received written reports from a prominent Ob/Gyn physician who has served as the President
of the Washington State Obstetrical Association that concluded that Dr. Smigaj met the applicable standard of Ob/Gyn care
in all three cases that YVMH used to suspend her clinical privileges. Reports from YVMH’s own ‘outside reviewer’
also did not describe Dr. Smigaj as posing a threat of immediate harm to any patient. Dr.
Smigaj has not in fact caused harm to any patient at YVMH. After reviewing the
three patient medical records identified by YVMH, and a report from an “outside reviewer,” a highly qualified
Ob/Gyn expert in Bellevue, Washington concluded that Dr. Smigaj’s patient care was consistent with the standard of Ob/Gyn
practitioners in the State of Washington and that YVMH’s summary suspension of Dr. Smigaj was unjustifiable.
11.
The summary suspension of all of Dr. Smigaj’s clinical privileges was contrived
by Defendant CEO Linneweh, working in concert with defendant Olden and his assistant Kay Anyan, together with Dr. Rowles and
members of the Perinatal QA Committee, three of whom are in direct competition with Dr. Smigaj, to come up with a way to drive
Dr. Smigaj out of practice in Yakima because she is a woman who poses a serious competitive threat to the defendants and YVMH.
12.
Defendant Linneweh has been attacking Dr. Smigaj from the moment she began practicing
in Yakima in 1995 to the present time, constantly causing her cases to be reviewed, checking her file and publicly disparaging
her credentials as a physician. YVMH’s latest attack on Dr. Smigaj began
in July 2008 just as she was opening a new office for her expanding practice and had just employed a physician who would provide
coverage for her practice after years of being boycotted by most of the male Ob/Gyn practitioners in Yakima.
13.
The acts of the defendants constitute blatant acts of unfair competition and anti-competitive
misconduct in violation of RCW 19.86. More significantly, Dr. Smigaj is being
treated differently than male Ob/Gyn practitioners in Yakima, some of whom have committed acts of gross medical negligence
in recent years, even causing deaths, but whose privileges, which are a term of the contract between YVMH and each of its
physicians, have never been suspended nor has any substantial adverse action ever been taken against their ability to practice
at YVMH, because they pose no economic threat to YVMH.
II.
FACTS
A. The Practice of Obstetrics in Yakima.
14.
Dr. Diana Smigaj has been practicing medicine in Yakima for over 13 years, beginning
in September 1995. She is board certified in Obstetrics & Gynecology (“Ob/Gyn”)
and Maternal-Fetal Medicine (“Perinatology”) and is a Fellow of the American College of Obstetricians and Gynecologists
(“ACOG”). She has received more training in treating complicated
and high risk pregnancies than any other Ob/Gyn practicing in Yakima County.
15.
Cascade Women’s Healthcare Associates (“CWHA”) was formed by
Dr. Smigaj in July 2000. CWHA currently employs Dr. Smigaj; Sue Dennis, an Advanced
Registered Nurse Practitioner and a Certified Nurse-Midwife; Deborah Vuillemont, an Advanced Registered Nurse Practitioner
and a Certified Nurse-Midwife; Judith Hargis, PA-C, a Certified Physician Assistant; and Linda Dale, PA-C who is also a Certified
Physician Assistant. On July 22, 2008, CWHA began employing Byron Gatlin, M.D.
an Ob/Gyn physician who is also a Fellow of the America College of Obstetrics & Gynecology. CWHA currently has 34 employees, pays $21,000 in rent monthly and has other debt payments totaling approximately
$9,000 per month. Since January 1, 2001, CWHA and Dr. Smigaj have delivered 5,469
babies, which is approximately twenty-five percent of all babies born in Yakima during the past five years.
16.
Approximately twenty-nine (29) physicians currently have medical staff privileges
to practice obstetrics at YVMH. The largest obstetrical practices in Yakima belong
to the Yakima Valley Farm Workers Clinic (which employs Dr. John Naiden and Dr. Michael Jach); Dr. Kevin Harrington, current
Chairman of the Department of OB/Gyn at YVMH; Defendant Dr. Roger Rowles; and Plaintiff Dr. Diana Smigaj. Other OB/Gyn physicians on the YVMH medical staff are employed by groups that are directly or indirectly
controlled by YVMH and Linneweh; they include Dr. Jonathan Johns, Dr. Keven Nevil and Defendant Dr. Olden.
B. History of Attacks by YVMH and Richard Linneweh against Dr. Smigaj in Yakima.
17.
Between 1891 and 1950, the only hospital in Yakima was St. Elizabeth Hospital,
operated by the Sisters of Providence. Subsequently, St. Elizabeth Hospital was
renamed Providence-Yakima Medical Center. In June 1950, Yakima Valley Memorial
Hospital opened as the second hospital in Yakima. For many years, the two hospitals
had a common medical staff known as the “conjoined medical staff.” However,
the two hospitals have always been fierce economic competitors.
18.
Barbara Hood was the Chief Executive Officer of Providence-Yakima Medical Center
(now known as Yakima Regional Medical and Cardiac Center) between 1988 and 2000. In
1993, Providence-Yakima Medical Center decided to reestablish an obstetrical service that would compete with YVMH. In 1994, Mrs. Hood recruited Dr. Smigaj, a board-eligible Ob/Gyn physician with fellowship training in
Perinatology, to come to practice in Yakima for five years and rebuild the obstetrical program at Providence-Yakima Medical
Center, beginning in September 1995. Providence-Yakima Medical Center did not
have a large enough number of births to have an economically viable obstetrician program before hiring Smigaj.
19.
Dr. Smigaj was met with extreme hostility by YVMH, Defendant Linneweh and a number
of male Ob/Gyn physicians even before she began practicing in Yakima. In January
1995, after she had been recruited by Mrs. Hood, several male Ob/Gyn physicians told Dr. Smigaj that they opposed Providence-Yakima
Medical Center hiring her and that she would be deeply resented if she came to practice in Yakima. In late March 1995, when Dr. Smigaj was still completing her fellowship training in Ohio, Dr. Randall Sloop,
an Ob/Gyn practicing in Yakima, called Dr. Leon Mann, the Chairman of the Ob/Gyn Department at Metro Medical Center in Cleveland,
Ohio where Dr. Smigaj was training and inquired about her qualifications and claimed he was acting in an ‘official capacity’
as part of the process to offer her a contract to practice in Yakima. Upon information
and belief, Dr. Sloop called Dr. Mann with the knowledge and approval of Defendant Linneweh, trying to find out something
negative about Dr. Smigaj that could be used to deny her application for medical staff privileges to work in Yakima. Dr. Mann
informed Dr. Smigaj that they are “looking for something to try to nail you.”
20.
In March 1995, Dr. Smigaj applied to the conjoined medical staff at Providence-Yakima
Medical Center and YVMH for privileges to practice obstetrics in Yakima. In her
application for initial appointment and in all applications for reappointment since that time, she has agreed to be bound
by the medical staff bylaws, policies, rules and regulations of the hospital in exchange for the grant of medical staff privileges. She was initially granted clinical privileges to practice obstetrics at both hospitals
in June 1995. The privileges granted to Dr. Smigaj were part and parcel of a
contract formed between the hospital and Dr. Smigaj.
21.
Dr. Smigaj was granted temporary privileges in June 1995 and began practicing
obstetrics in Yakima in September 1995. Almost immediately, Defendant Linneweh
began raising a series of “quality assurance concerns” about Dr. Smigaj’s work during September and October
1995. Linneweh caused many of her cases to be reviewed for spurious reasons. Mr. Linneweh wrote to Dr. Smigaj in late October 1995 and informed her that her temporary
privileges would be continued for another month while “the Board” sought “more complete information relative
to a reported case that occurred at this hospital.” “The Board”
referred only to YVMH and was actually Mr. Linneweh, who exerts a huge influence over all of YVMH’s Board decisions.
22.
Mr. Linneweh’s harassment of Dr. Smigaj became so extreme that Providence-Yakima
Medical Center hired Douglas Ross, an experienced antitrust attorney at the Davis Wright Tremaine law firm in Seattle to review
Mr. Linneweh’s conduct during the credentialing process. Mr. Ross wrote
a letter to Mr. Linneweh on November 8, 1995 detailing all the incidents of harassment that occurred during the first two
months that Dr. Smigaj practiced in Yakima, and warned him that colluding to exclude Dr. Smigaj from the Yakima market would
be a serious violation of state and federal antitrust laws. Notwithstanding,
Defendant Linneweh pressed on against Dr. Smigaj, personally causing three more cases to be reviewed so he could obtain YVMH
Board approval to have her re-proctored and reviewed for an additional six months entering into mid-1996.
23.
Ultimately, after Defendant Linneweh was unable to come up with any more cases
to criticize, Dr. Smigaj completed her provisional first year and was granted full active privileges in September 1996. However, Defendant Linneweh’s harassment of Dr. Smigaj did not stop at that
time. For the next fifteen months, Linneweh continued to harass Dr. Smigaj by
constantly reviewing her cases and trying to find fault with them. The situation
deteriorated to the point where Dr. Smigaj wrote to Linneweh on December 1, 1997 addressing four more cases he had expressed
“concerns” about, but which the medical staff Quality Assurance Committee had made no adverse evaluation or recommendation. Among other things, Dr. Smigaj proposed that Mr. Linneweh agree in writing that another
Ob/Gyn in Yakima would provide a consultation for her next thirty (30) high-risk pregnancy cases in order to get Mr. Linneweh
off her back. Mr. Linneweh agreed, but only upon condition that if Defendant
Rowles determined even more cases were needed, she would continue to be subjected to the consultation requirement after that
was done.
24.
The new plan went into effect in December 1997 and on June 15, 1998 Dr. Rowles
wrote to Mr. Linneweh and informed him that Dr. Smigaj had successfully “completed her six month proctoring” and
that none of the four proctoring obstetricians had any further concerns about Dr. Smigaj’s management of her patients. Dr. Rowles recommended that the consultation requirement be dropped because “Dr.
Smigaj has demonstrated the appropriate skills and expertise to manage patients independently.” On June 21, 1998, Defendant Linneweh wrote to Dr. Smigaj, but did not copy the Board; in his letter Linneweh
said “We accept the proctors’ recommendation that the mandatory consultation be dropped.”
25.
The criticism stopped for the next five years while Dr. Smigaj practiced at both
hospitals and brought many of her patients to Providence-Yakima Medical Center, but the male Ob/Gyns in Yakima continued to
make life difficult for Dr. Smigaj by continuing their refusal to include her in a call coverage arrangement that included
every other Ob/Gyn practicing in Yakima except her. With the knowledge and encouragement
of Defendant Linneweh, the other Ob/Gyns, almost all of whom were then male practitioners, shunned and isolated Dr. Smigaj
in a group boycott. YVMH rules provide that all Ob/Gyns are required to participate
in the OB/Gyn Department call schedule, but the other Ob/Gyns excluded Dr. Smigaj from participation, based on the excuse
that since she only practiced obstetrics, she would not be able cover their gynecology patients, which was simply not true. She was only able to maintain her practice because Dr. Ted Rudd, a well-respected
senior Ob/Gyn in Yakima who was the Medical Director of the Obstetrical services at Providence Hospital, agreed to cover for
her when she needed it; most of the time however, she was on duty 24 hours a day, 7 days a week to cover her patients. Over time, she gradually became exhausted, which was exactly what Defendant Linneweh
anticipated would happen.
26.
Dr. Smigaj completed her five year obligation to Providence-Yakima Medical Center
in 2000. In 2001, she opened her own office and incorporated her practice as
Cascade Women’s Healthcare Associates. Dr. Ted Rudd practiced with her
and continued to provide the only regular coverage for her obstetrical practice. She
also brought two nurse midwives with her, to the extreme displeasure of Defendant Linneweh.
27.
Providence-Yakima Medical Center closed its obstetrical service and birth center
in late 2002 shortly before the Sisters of Providence sold the hospital to Health Management Associates (“HMA”)
in 2003. HMA renamed the hospital Yakima Regional Medical Center. Since then, YVMH has been the only provider of obstetrical services in Yakima and the surrounding region.
28.
Shortly after Yakima Regional Medical Center began in 2003, Dr. Smigaj urged their
officials to reopen the obstetrical service. She was concerned that YVMH was
overcrowded, the nursing staff was overworked and that YVMH did not have enough room to adequately care for all the obstetrical
patients who were coming to that hospital. She also noted that when patients
and physicians had nowhere else to go, the support service declined, which adversely affected the overall quality of care. Dr. Smigaj’s complaints about the obstetrical service at YVMH were ignored. Although YVMH promised to add more rooms to the obstetrical service, it has failed
to do so to this day. The maternity service is run by Linda Haralson, a nurse
who deflects blame from the nursing staff and refuses to address nursing problems at YVMH raised by Dr. Smigaj.
29.
In November 2004, Linda Haralson objected to one of CWHA’s midwives involvement
in a vaginal birth after Cesaerean section (“VBAC”) birth. The matter
was investigated and the Chief of Staff determined that “the system broke down” and that the QA Committee would
be the appropriate place for evaluating the processes that led to the breakdown. Notwithstanding
the Chief of Staff’s finding, in December 2004, YVMH summarily suspended the privileges of another midwife practicing
with CWHA for allegedly practicing outside the scope of her privileges. The midwife’s
privileges were reinstated on January 10, 2005 after it was discovered that a nurse had misinformed the midwife about the
patient’s status. YVMH never acknowledged that its nursing staff caused
the problem. Shortly afterward, Defendant Linneweh announced that YVMH would
not credential any more midwives to practice at the hospital. He asserted that
YVMH had the right to limit midwives because he wanted to recruit more Ob/Gyns to come practice in Yakima and if too much
of the obstetrical service was being covered by midwives, it would be more difficult to recruit additional Ob/Gyn physicians. In 2004, CWHA’s midwives were the busiest midwives at YVMH. In 2005, YVMH recruited two additional Ob/Gyn physicians to practice in Yakima, including Dr. Jonathan
Johns. Since then, YVMH has also granted obstetrical privileges to two midwives
to replace one midwife who left Dr. Naiden’s practice at the Yakima Valley Farm Workers Clinic, bring their total to
three midwives.
C. Renewed Attacks By YVMH and Linneweh Against Dr. Smigaj and CWHA Beginning in 2005.
30.
Dr. Ted Rudd stopped practicing obstetrics in March 2005 and retired from practicing
medicine at the end of 2005. The protection he had provided for Dr. Smigaj’s
practice ended. Beginning in April 2005, Dr. Smigaj had no one to cover her obstetrical
practice unless Dr. Rowles or Dr. Harrington agreed to cover for her which they did on an infrequent basis.
31.
On April 15, 2005, Defendant Olden notified Dr. Smigaj that a “special Perinatal
Quality Assurance Committee” meeting had been scheduled to review one of her cases in which Dr. Rowles successfully
delivered a baby when Dr. Smigaj was not notified in time to do it. A majority
of the committee members were Dr. Smigaj’s direct economic competitors. The
committee reviewed the case and ignored the fact that the nurse had not accurately assessed the patient and had not informed
Dr. Smigaj that the patient’s situation had changed significantly. The
committee made no attempt to obtain clarification from the nurse and took no corrective action regarding the nurse. Instead, it determined that Dr. Smigaj was solely at fault and speculated that because she was exhausted
she was not clear in her communication with the nurse. The Perinatal QA Committee
decided that remedial action was necessary in order to deflect blame from the nursing staff.
The committee imposed humiliating conditions upon Dr. Smigaj, most of which bore no relationship whatsoever to the
case it reviewed. It cost her more than $14,000 to fulfill these excessive conditions.
32.
Dr. Smigaj agreed to the conditions because the Perinatal QA Committee, which
included Defendants Dr. Carl Olden and Dr. Roger Rowles, as well as competitors like Dr. Jonathan Johns and Dr. Michael Jach,
threatened to make matters a lot worse for her if she did not agree to them. Dr.
Olden and Dr. Rowles informed Dr. Smigaj that if she did not immediately agree to the conditions they were imposing, that
they would report her ‘lack of cooperation” to the MEC and recommend that they take other action against her privileges.
Dr. Smigaj gave in and complied with their demands because she had neither the time nor the money to fight with YVMH. It took Dr. Smigaj months to finally fulfill all their conditions, including taking
off time to take courses they demanded despite the fact they had no relevancy to the case that had been reviewed.
33.
Beginning in August 2005 and again at various times during 2006, Dr. Smigaj again
urged Yakima Regional Medical Center to explore the possibility of reestablishing an obstetrical unit at that hospital. She did this because YVMH continued to be overcrowded, had not expanded its staff
or space to ensure consistent quality of care to obstetrical patients, and had continued to demonstrate hostility toward her
practice because of her initial affiliation with Providence-Yakima Medical Center and her utilization of nurse midwives to
produce a high volume of births. Her proposal would provide obstetrical cross
coverage for her practice, but if implemented would also pose a serious competitive threat to YVMH if she brought a relatively
large number of deliveries to Yakima Regional Medical Center. Dr. Smigaj directly
competes with some obstetrical physicians whose practices are directly or indirectly controlled by YVMH.
34.
In the fall of 2005, Dr. Smigaj recruited Dr. Elton Kerr to practice with CWHA
and provide her with cross coverage after Dr. Ted Rudd retired. YVMH granted
privileges to Dr. Kerr to practice Ob/Gyn beginning in January 2006. During 2006,
Dr. Kerr provided Ob coverage for Dr. Smigaj’s obstetrical practice and performed approximately 300 surgical procedures
at YVMH.
35.
In late November 2006, Defendant Olden sent letters to Dr. Kerr regarding his
care of two patients many weeks and months prior to that time. Suddenly, on January
4, 2007, without notice or warning, Dr. Olden selected five cases to present to the Surgical QA Committee and without asking
Dr. Kerr for his side of the story regarding three of the cases, caused all of Dr. Kerr’s surgical privileges to be
summarily suspended as of noon that day, thereby depriving Dr. Smigaj of any further Ob coverage until the matter could be
reviewed further. Defendant Olden provided no
specifics about his concerns regarding any of the five cases but YVMH nonetheless claimed that Dr. Kerr threatened “imminent
danger” to patients at the hospital if it failed to suspend his privileges immediately.
36.
Dr. Kerr’s request for a list of specific concerns was ignored. He was given an opportunity to meet with the Medical Executive Committee (“MEC”) on January
16, 2007 but was not permitted to have an attorney nor was he given any information about what the specific charges were. The MEC said nothing during his presentation and no one asked a single question. It continued the suspension and informed Dr. Kerr he could have “fair hearing”
rights months later. None of the members of the MEC who attended were Ob/Gyn
physicians and they had little or no idea what Dr. Kerr was talking about. YVMH
said it would report the suspension to the National Practitioner Data Bank after it had been effect for 30 days, which would
have totally destroyed his career. Meanwhile, two highly qualified Ob/Gyn experts
in Spokane, Washington and Bellevue, Washington with impeccable credentials reviewed the medical records of the five cases
Defendant Olden had selected and found that Dr. Kerr’s patient care was consistent with the standard of care of Ob/Gyn
practitioners in the State of Washington and that YVMH’s summary suspension of Dr. Kerr’s privileges was unjustifiable. Their written reports were provided to YVMH but the hospital did not back down until
Dr. Kerr filed suit in the Superior Court of Yakima County on January 31, 2007 seeking an injunction to stop his suspension. CWHA supported the lawsuit to protect its investment in Dr. Kerr as well as to try
to reinstate his coverage for Dr. Smigaj’s obstetrical practice. The next day, on February 1, 2007, the MEC held a special
meeting and immediately reinstated Dr. Kerr’s surgical privileges on the condition that he had to consult with either
Dr. Rowles or Dr. Harrington before scheduling his surgeries.
37.
YVMH did not stop harassing Dr. Kerr after it reinstated his surgical privileges. Instead, even though practically none of his other cases had “fallen out”
for quality review, in April 2007 the hospital commissioned a sweeping investigation of every one of Dr. Kerr’s 300
surgical cases by an outside review organization, trying to find something they could ‘nail’ him with. The reviewers did not recommend his privileges be suspended, but instead recommended that his patients
obtain mandatory second opinions before scheduling them for surgery. The MEC
endorsed the reviewers’ recommendation and Dr. Kerr appealed the adverse decision to a “fair hearing” committee. After a two-day hearing in January 2008, the hearing committee decided there was no
justification for the MEC’s recommendation.
38.
There never was any merit to the Surgical QA Committee’s recommendation
to suspend Dr. Kerr’s privileges in January 2007 or to the imposition of lesser sanctions recommended later on.
39.
Meanwhile, YVMH continued on with its baseless attacks on Dr. Smigaj. In March 2007, the Perinatal QA Committee began an inquiry into her care of another obstetrical patient
and recommended that she take more Continuing Medical Education courses to “correct” the problem. When Dr. Smigaj met with the committee in March 2007, the entire discussion involved the failure of the lab at YVMH to deliver blood products in a timely manner to Dr. Smigaj which she needed urgently
in the operating room. On May 16, 2007, to her complete surprise, Dr. Smigaj
received a letter from the Perinatal QA committee listing “concerns” that were not discussed when she met with
the committee in March. The letter recommended “corrective action”
again. Dr. Smigaj prepared a detailed written response to the committee’s
new issues and asked Dr. Mize Conner, a prominent Ob/Gyn who practices in Bellevue, Washington, to review the medical records
for her. Dr. Conner reviewed the records in detail and said her conduct was reasonable
in all respects. Dr. Olden disparaged Dr. Conner’s review but the committee
took no further action regarding Dr. Smigaj’s care of the patient in the case.
Defendant Olden refused to identify who claimed Dr. Smigaj had done something wrong or to specify any criticism of
her care in the case.
40.
YVMH stepped up its attacks on Dr. Smigaj significantly in 2008. In March 2008, Linda Haralson, R.N. prompted the nursing staff to report a case in which there
was a good outcome involving a patient who was transferred from Sunnyside Hospital to Dr. Smigaj in Yakima for delivery of
a baby on February 26, 2008. Dr. Smigaj met with the Perinatal QA Committee on
June 20, 2008 to discuss the case. On July 16, 2008, the committee sent her a
letter requesting that she “voluntarily” stop receiving transfers as an “interim precautionary step”
until the committee had completed its investigation. Dr. Smigaj refused because
it was clinically unjustified and because it could have resulted in a damaging report being sent to the National Practitioner
Data Bank. Instead, she agreed to come in and see any transfer patient within
an hour of the transfer to YVMH and notify Dr. Rowles of this. Defendant Dr.
Rowles, Chairman of the committee, initially agreed to this proposal, it was written up and Dr. Smigaj signed it. Dr. Rowles did not mention the concern that he was not a perinatologist while this agreement was being
negotiated between him and Dr. Smigaj, nor did he mention the fact that the Perinatal QA Committee had been appointed as an
“Ad Hoc Committee” to investigate every facet of her practice for the past ten to thirteen years. In contravention to the medical staff bylaws, Dr. Smigaj was never informed that an Ad Hoc Committee was
investigating her, nor was she ever invited to meet with the Ad Hoc Committee to discuss the various areas of concern they
were reviewing going back over the previous 13 years she had practiced in Yakima.
41.
However, on July 21, 2008, the day before
she opened a new office into which she had invested nearly half a million dollars, and the day before Dr. Byron Gatlin, a
new Ob/Gyn who CWHA employed to begin working with her and provide coverage, the committee informed Dr. Smigaj that the
arrangement was no longer acceptable on the pretext that because she was the only ‘perinatologist’ practicing
in Yakima it would be inadequate for her to report to Dr. Rowles, who was merely an Ob/Gyn.
The reason given by the committee was absurd because all the physicians who practice obstetrics in Yakima manage their
own high risk patients and Dr. Smigaj does not practice as a ‘perinatologist.’
All the Ob/Gyn practitioners in Yakima handle the same type of high-risk obstetrical patients that Dr. Smigaj manages.
42.
At the same time, Dr. Conner reviewed the medical records of the case and found
that while Dr. Smigaj’s care was not optimal because she did not come in to see the patient right away, but instead
relied on information received from the referring physician who she had worked with many time before and the YVMH nurses (who
once again failed to notify Dr. Smigaj in a timely manner of a material change in the patient’s clinical status), nevertheless
her management did not violate the standard of care. YVMH also had the patient’s
records reviewed by Dr. Mark Tomlinson, a perinatologist who practices at Providence-St. Vincent Hospital in Portland, Oregon,
who criticized some aspects of the case but did not find that Dr. Smigaj violated the standard of care or recommend any adverse
action be taken against her privileges. However, in an effort to appease the
committee, in late July 2008 Dr. Smigaj agreed to have either Defendant Dr. Rowles or Dr. Harrington review her plan of treatment
when patients from other areas were transferred to her care. That “condition”
was still in effect when YVMH summarily suspended all of her clinical privileges on September 4, 2008.
43.
When Dr. Smigaj did not accede to all of the Perinatal QA Committee’s demands
in July 2008, it then appointed itself as an “Ad Hoc” Investigating Committee with the knowledge and approval
of Defendant Linneweh in abject violation of the Medical Staff Bylaws and launched a wholesale investigation into her practice
going back thirteen years and began to circulate rumors that she was a “disruptive” physician. The “Perinatal QA/Performance Improvement Ad Hoc Committee met for the first time on July 9, 2008
and began a review of Dr. Smigaj’s practice going back for ten years. Kay
Anyan, speaking for Defendant Lenneweh, suggested the Committee might recommend suspension of Dr. Smigaj’s privileges.
44.
Shortly after Dr. Gatlin began working at CWHA on July 22, 2008, he met Dr. John
Naiden, the leading Ob/Gyn at the Yakima Valley Farm Workers Clinic. Dr. Gatlin
introduced himself as the new physician in Dr. Smigaj’s practice. Dr. Naiden,
who is not a member of the Perinatal QA Committee and should not have access to “confidential” peer review information,
immediately informed Dr. Gatlin that “Dr. Smigaj is in a lot of trouble at the hospital” and further informed
him that he would not agree to help proctor him so he could practice with her. Among
other things, this breach of confidentiality removed the peer review process from any claim of privilege.
45.
In August 2008, YVMH found two more of Dr. Smigaj’s cases to criticize. On August 15, 2008, Kay Anyan reminded the committee that “the hospital would
support the committee’s decision and/or recommendations.” Defendant
Dr. Rowles sent Dr. Smigaj a letter listing five concerns about her management of a case on June 16, 2008 and three concerns
about another patient she treated on August 3, 2008. Dr. Smigaj immediately obtained
the medical records for these two patients and submitted them to Dr. Conner for review.
Dr. Conner prepared a written report of his review on August 26, 2008 which Dr. Smigaj gave to members of the Perinatal
QA Committee when she met with them on August 29, 2008. Regarding the case in
June, Dr. Conner concluded “I find nothing in Dr. Smigaj’s management of this case that deserves criticism.” Regarding the case on August 3, 2008, Dr. Conner concluded “I have no criticism
of Dr. Smigaj’s care in this case” even though the fetus died at 25 weeks gestation, and that “the criticisms
leveled by Yakima Valley Memorial Hospital are without basis.” He
found that there was no way the death of the severely premature infant could have been prevented. Defendant Linneweh, a lay person with an agenda to destroy Dr. Smigaj as a competitive threat, saw it differently. He claimed that if YVMH had suspended Dr. Smigaj’s privileges earlier “the
baby would have survived.” However, both Dr. Conner and the hospital’s
own outside expert reviewer, Dr. Tomlinson, have agreed that there was no way the baby
would have survived. But that did not matter to Linneweh and Plaintiff’s
competitors.
46.
Dr. Smigaj met with the Perinatal QA Committee on August 29, 2008 and defended
her care of the two patients referred to in the letter she received on August 15, 2008.
Those present included Defendants Drs. Olden and Rowles and Drs. Johns and Jach, all of whom directly compete with
Dr. Smigaj, plus Maternity Nurse Linda Haralson and two other physicians who were misinformed and misled by Drs. Rowles and
Olden. Dr. Smigaj also gave each member of the committee a copy of Dr. Conner’s
written report dated August 26, 2008. None of the information Dr. Smigaj provided
mattered to any of them. Defendants Linneweh, Olden and Rowles had already decided
to summarily suspend all of her clinical privileges. They just needed to finalize
their “reasons” for doing so.
47.
On information and belief, the Perinatal QA Committee met in a special, hastily
called meeting of the Ad Hoc Committee with Defendant Linneweh and others on or about September 3, 2008 and finalized their
decision to summarily suspend all of Dr. Smigaj’s clinical privileges. They did not even bother to ask the Medical Executive
Committee to consider the matter before drafting a letter dated September 4, 2008 to Dr. Smigaj, which they presented to Dr.
Brian Padilla, President of the Medical Staff to sign, informing Dr. Smigaj that all of her clinical privileges were being
summarily suspended as of midnight on September 4, 2008, based on the Perinatal Quality Assurance Ad Hoc Committee’s
‘evaluation of her cases over the years since 1999’; the patients she treated on February 26, 2008, June 16, 2008
and August 3, 2008; and completely unspecified “disruptive practitioner” reports.
The letter claimed that YVMH was summarily suspending all her clinical privileges based on “a determination that
failure to initiate…a suspension may result in an imminent danger to the
health and/or safety of any individual or any the orderly operations of the Hospital,” and that “After a full
discussion and evaluation of the circumstances, the Committee has unanimously determined that the quality of care concerns
identified could cause harm to a present or future patient, increase the risk or
likelihood of complications to a patient, complicate or delay a patient’s recovery, or cause a similar threat to the
patient’s health, safety or recovery.” The letter also notified Dr.
Smigaj that the “suspension is reportable to the National Practitioner Data Bank” when required by law”;
i.e. on October 5, 2008 if it remained in effect for over 30 days.
48.
This illegal and unjustified suspension of Dr. Smigaj’s clinical privileges
was the first blemish on her previously spotless record.
49.
Dr. Padilla’s letter informed Dr. Smigaj that the MEC would meet on Tuesday,
September 16, 2008 to review the suspension of her privileges and invited her to attend the meeting and make a statement as
to why the summary suspension should not be continued but also said she could not call witnesses or cross-examine any of her
accusers. Instead, she was informed that she would not be entitled to any hearing rights at the meeting and could not be accompanied by an attorney. YVMH’s medical staff bylaws, policies, rules and regulations and “fair hearing” plan
do not provide for any due process hearing rights before a suspension would be reported to the National Practitioner Data
Bank if it remained in effect for more than 30 days. In Dr. Kerr’s case, YVMH did not provide him with a fair hearing
until a year after it initially suspended his medical staff privileges.
50.
The MEC met on September 16, 2008 to consider the matter of Dr. Smigaj’s
suspension. The members reviewed the clinical reviews of Dr. Conner and Dr. Tomlinson
that were available to YVMH and the Perinatal QA Committee on September 3, 2008 and additional information received since
that time. Defendant Rowles appeared before the MEC when Dr. Smigaj was not present
and despite all the clinical information then available, argued that the suspension should be continued; Dr. Smigaj was then
invited into the meeting and set forth all the reasons why her privileges should be reinstated as of September 4, 2008 because
there was no clinical or legal justification for her privileges to be suspended at all. The MEC discussed the case and agreed
there was no reason to continue the suspension of Dr. Smigaj’s privileges, nor
was there ever any justification for suspending her privileges in the first place.
Dr. Padilla spoke with Dr. Smigaj shortly after the MEC meeting adjourned on September 16, 2008 and told her that the
MEC voted unanimously to reinstate her privileges and that she could go back to
work immediately. Dr. Padilla said he would send her a letter shortly confirming the MEC’s decision.
51.
There was a conflict of interest between Defendants Linneweh, Rowles and Olden
on the one hand, and the MEC on the other hand, regarding the status of Dr. Smigaj’s medical staff privileges.
52.
It took YVMH over two days for Defendant Linneweh and others working with the
hospital’s attorneys to generate a letter formally informing Dr. Smigaj that her clinical privileges were reinstated. Upon information and belief, the letter was drafted by the hospital attorneys in the
name of the MEC. When the letter finally arrived on the afternoon of September 18, 2008, it was not signed by Dr. Padilla. The letter falsely stated that “the MEC determined that the precautionary suspension
was appropriate and in furtherance of quality healthcare at the time it was issued” and that the MEC recommended that
Dr. Smigaj remain with transfer patients until transport services arrive.” In
fact, when the MEC discussed the matter at its meeting on September 16, 2008, the members found that the suspension was not
warranted and there was no discussion at all about it being “”appropriate and in furtherance of quality healthcare
at the time it was issued.” Furthermore, the MEC did not recommend that
Dr. Smigaj remain with transfer patients until transport services arrive.”
53.
On September 17, 2008, Robert
Zech, an attorney representing YVMH wrote and said that “the Medical Executive Committee is preparing a written confirmation
of its action of September 16.” The MEC did not have separate counsel write the letter.
On information and belief, the letter Dr. Smigaj received on September 18 was not prepared by the MEC, but rather by
Mr. Zech, an attorney representing YVMH, who inserted the false and self-serving phrase “the MEC determined that the
precautionary suspension was appropriate and in furtherance of quality healthcare at the time it was issued” into the
letter in an attempt to insulate YVMH from liability for damages pursuant to the Health Care Quality Improvement Act.
54.
The next day, on September 18, 2008, counsel for Dr. Smigaj wrote to Mr. Zech
and informed him that the action he claimed the MEC had taken was not what Dr. Padilla had said to Dr. Smigaj or what actually
happened at its meeting on September 16, 2008, and that a prospective review of medical records was not an “investigation.” Without referring to anything specific, Mr. Zech emailed a one-sentence response on
September 19, 2008: “We disagree with the factual allegations and legal contentions in your letter of September 19,
2008.”
55.
Unbeknownst to Dr. Smigaj, YVMH received a routine recredentialing letter from
Group Health Cooperative on September 2, 2008 regarding annual verification of Dr. Smigaj’s credentials and clinical
privileges at YVMH. YVMH waited until after it had summarily suspended Dr. Smigaj’s
privileges to respond to the letter.
56.
On September 22, 2008, Mr. Zech wrote to counsel for Dr. Smigaj informing them
of YVMH proposed response to the recredentialing letter from Group Health, which was both false and misleading. Among other
things, Mr. Zech informed counsel for Dr. Smigaj that unless ‘we hear from you regarding this matter’ in the next
two days, YVMH would inform Group Health that it had imposed a “precautionary suspension of Dr. Smigaj’s clinical
privileges on September 4, 2008 “based upon three (3) cases with identified quality of care concerns,” and that
even though the MEC “voted unanimously to reinstate Dr. Smigaj’s clinical privileges” it did so only effective
September 16, 2008, and that as a result of the action taken, it would be conducting a further ‘investigation’
into Dr. Smigaj’s medical practice.
57.
Counsel for Dr. Smigaj responded within the two-day “deadline” unilaterally
imposed by Mr. Zech and objected to YVMH’s proposed response as being defamatory, false and misleading on the following
grounds:
(a)
Question 4 on the Group Health form asked whether Dr. Smigaj’s privileges
to admit or treat patients had ever been…suspended. The correct answer
was “NO” because pursuant to the medical staff bylaws section an “interim suspension” that is reversed
by the MEC has no legal validity whatsoever; the suspension was a mistake that no longer existed for any reporting purpose
and no further explanation was required;
(b) Question 5 on the Group Health form asked “Are there any past or pending medical malpractice
actions in this state or in another state?” which required a simple “Yes” or “No” answer by
checking the appropriate box on the form. The correct answer to the question
was simply, “No.” Instead, YVMH answered, ‘We are not aware
of any pending or past medical malpractice actions’ thereby smearing Dr. Smigaj by suggesting that some action might
exist, but the hospital wasn’t aware of it.
(c) Similarly, Question 6 on the Group Health form asked
“To your knowledge, has the applicant any past or pending disciplinary proceedings in this or another state by a licensing
or disciplinary board? Again, the question required a simple “Yes” or “No” answer by checking the
appropriate box on the form. The correct answer to the question was “No.” Instead, YVMH answered, ‘We are not aware of any pending or past disciplinary
proceedings’ thereby smearing Dr. Smigaj by suggesting that some action might exist, but the hospital simply wasn’t
aware of it.
(d) Finally, YVMH gratuitously and falsely informed Group Health that “Under Memorial’s Fair
Hearing Plan and Corrective Action Policy, a precautionary suspension is considered a request for an investigation to the
Chairperson of the Ob/Gyn Department.” This was a false statement because
the medical staff bylaws provide that the MEC recommendation to terminate an improper suspension does not constitute a request for an investigation.
Counsel for Dr. Smigaj warned Mr. Zech that if it sent the proposed response to Group Health that YVMH would lose the
limited immunity protections of RCW 70.41.230(4) and subject his client to a claim for civil damages.
58. On or about September 25, 2008, YVMH ignored Dr. Smigaj’s counsel’s warning and proceeded
to send the defamatory responses to Group Health. YVMH acted maliciously and
in bad faith by perverting the medical staff bylaws in its response to Group Health in a secondary attempt to harm Dr. Smigaj’s
reputation and destroy her practice and career. Unless the publication of such
information to Group Health and all other third-party payors, hospitals, insurance companies and the like are enjoined, her
career will be irreparably harmed by the false information being disseminated by YVMH.
58.
There was never any reason for the defendants to summarily suspend Dr. Smigaj’s
clinical privileges beginning September 5, 2008. None of the three cases identified
in Dr. Padilla’s letter of September 4, 2008 indicated that Dr. Smigaj presented an “imminent danger” to
the health and safety of any patient under her care. Furthermore, the “ethical
concerns” expressed in the letter informing her that her privileges were suspended, to the effect that Dr. Smigaj “failed
to obtain informed consent” and used “misleading dictation” regarding the patient she cared for on February
26, 2008 were not only incorrect, they had nothing to do with presenting a threat of “imminent danger” to any
patient at YVMH. The suspension letter also accused Dr. Smigaj of being “disruptive.”
During the 13 years Dr. Smigaj has practiced medicine at YVMH, she received notice of only
two allegedly “disruptive” incidents; one involved a dispute with a another doctor in 2006 in which she raised
her voice; the other a private telephone conversation with one of her colleagues in August 2007 that the Chief of Staff said
“was not intended for the public or staff” and “could be viewed
as disruptive.” She apologized for both.
59. Defendants Linneweh, Rowles and Olden have subjected Dr. Smigaj to a wholly different standard
of care than other Ob/Gyns who practice at YVMH because she is a female physician who Defendant Linneweh perceives as an economic
threat to YVMH's monopoly on obstetrical services in Yakima. Dr. Kevin Harrington,
the Chairman of the Department of Gynecology and Obstetrics has admitted that Dr. Smigaj has always been treated differently
that the other Ob/Gyns on the medical staff throughout the time she has practiced in Yakima.
60. During the last three years, Defendants Linneweh, Olden and Rowles have covered up acts of
gross medical negligence committed by male Ob/Gyns who practice obstetrics at YVMH, cases in which their negligence even caused
the death of an infant. In November 2005, Defendant Roger Rowles treated a patient
where he failed to act in a timely manner on clinical information that indicated the baby was in danger and the baby died. Despite the fact that Dr. Rowles committed an act of gross medical negligence, his
clinical privileges were never suspended and he was never subjected to disciplinary action based on his mistreatment of the
patient in that case. In November 2006, Dr. John Naiden, who is a notoriously
disruptive physician, mistreated a diabetic patient and during the birth a shoulder dystocia occurred, resulting in a damaged
baby. In April 2007, Dr. Naiden used forceps to try to deliver a baby and fractured
its skull. Despite the fact that Dr. Naiden committed these indefensible acts
of gross medical negligence, his clinical privileges were never suspended and no disciplinary action was initiated against
his privileges. Also in 2007, a nurse midwife who practiced with Dr. Rowles caused
severe damage to an infant who now lives on a feeding tube. No action has ever
been taken against Dr. Rowles or Dr. Naiden’s clinical privileges as a result of these cases, because they are male
and pose no economic threat to YVMH.
61. The illegal summary suspension of Dr. Smigaj’s clinical privileges has already had an adverse
impact on her practice and her previously excellent reputation in Yakima. If
YVMH continues to inform insurance companies, third party payors and other hospitals that Dr. Smigaj’s privileges were
suspended and that she is currently “under investigation” her career and CWHA will be irreparably harmed, which
is exactly what Defendant Linneweh intends.
IV. FIRST CAUSE OF
ACTION
FOR TEMPORARY RESTRAINING ORDER, INJUNCTIVE AND DECLARATORY RELIEF
62. Plaintiffs reallege and incorporate by reference all preceding and subsequent paragraphs
in this Complaint.
63. Plaintiffs seek a temporary restraining order and preliminary injunction against the
defendants to refrain from reporting any information related to any purported suspension or investigation about her to any
other hospital, person, or entity. Dr. Smigaj has a clear legal and equitable
right to relief because she is likely to prevail on her claims on the merits. Dr.
Smigaj has demonstrated a well-grounded fear of immediate invasion of that right because the Defendant YVMH (1) illegally suspended all her clinical privileges in violation of its contract with Dr. Smigaj, (2) reported
the illegal suspension to Group Health on or about September 25, 2008 and obviously intends to publish the same false and
damaging information to other recipients including insurance companies, HMOs and hospitals in the future, (3) stated its intent
to proceed further with an unauthorized ‘investigation’ of her medical practice, and (4) commenced taking further
“corrective action” against Dr. Smigaj. In violation of its own policies
and procedures, and with reckless disregard for the truth, defendants, with the aid of their attorneys are acting in bad faith
and maliciously as they to destroy Dr. Smigaj’s medical practice and career as a practicing physician. Their acts against Dr. Smigaj have already caused actual and substantial injury to Dr. Smigaj and
will cause her additional substantial injury. Without limitation, the following
grounds support the issuance of a temporary restraining order and a preliminary injunction:
A. The Hospital’s Summary Suspension Was Arbitrary and Capricious.
64. The evidence upon which the Medical Staff President relied does not support a finding that the failure
to summarily suspend Dr. Smigaj presented an “imminent danger to the health and/or safety of any individual.” Fair Hearing Plan and Corrective Action Policy, Article II, Section 2.1. (“FHP”)
65. The evidence affirmatively establishes that Dr. Smigaj has complied, in all respects, with the standard
of care. Even the written opinion of Defendant’s own outside expert witness
did not conclude that Dr. Smigaj’s treatment fell below the standard of care. The
summary suspension of her privileges was arbitrary and capricious and contrary to the medical staff bylaws.
B. The Illegal
Summary Suspension Was Motivated By Gender Discrimination And Anti-Competitive Animus, And Thus Prohibited By The Bylaws.
66. Article IV of the Medical Staff Bylaws prohibits denial of hospital staff membership or clinical
privileges “based on age, sex, race, religion, creed, color, or national origin, or based on any other criterion lacking
professional justification.” The Medical Staff Peer Review Process/Policy
promises that the peer review process will be a “non-biased activity” and that it will be “consistent.” Thus, the bylaws prohibit discrimination against female doctors.
67. Defendants have engaged
in a pattern and practice of gender discrimination vis-à-vis female Ob/Gyn physicians in Yakima, Washington over the past
thirteen years. In 2001, Linneweh and YVMH forced Dr. Beta Hamon to resign her
privileges after threatening to summarily suspend them when she had practiced on the conjoined medical staff for seven years
since 1994 and had never had a bad patient outcome or a malpractice claim.
68. Defendants have engaged
in a pattern and practice of gender discrimination vis-à-vis Diana Smigaj, M.D over the past thirteen years, constantly reviewing
her cases, harassing her, disparaging her skills and finally, in early July 2008, deciding on a course of action to get rid
of her once and for all even though she is in fact one of the most skilled, experienced and highly trained obstetricians in
Yakima County.
69. Defendants have engaged in a pattern and practice of anti-competitive activities vis-à-vis Dr. Smigaj,
including an ongoing boycott of her practice by refusing to provide coverage and threatening doctors who indicate a willingness
to do so.
70. Defendants violated the Bylaws and the Medical Staff Peer Review Process/Policy by summarily suspending
Diana Smigaj, M.D. because she is a woman and a competitor of other Ob/Gyns on the medical staff and a threat to YVMH’s
monopoly on obstetrical services in Yakima County. The reasons given for summarily
suspending all of her clinical privileges on September 5, 2008 were pretextual and constituted “sham” peer review.
///
///
C. The Purported Summary Suspension Must Be Declared Void Because
Defendants Failed To Follow Applicable Bylaws & Rules.
71. The Perinatal Quality Assurance/Performance Improvement Committee exceeded its powers under the Bylaws. The Perinatal Quality Assurance/Performance Improvement Committee has the very limited
power to “monitor performance” and to “improve performance by assessing problems, processes, and outcomes
of care, reaching conclusions and making recommendations to the practitioners or departments involved. Actions necessary to improve performance are the responsibility of the appropriate Medical Staff Department
Chairperson and the M.E.C.” Medical Staff Bylaws, Article VIII(P)(2)(a)-(b).
Here, the Perinatal QA
Committee never made any recommendation to Dr. Kevin Harrington, who is the Chairman of the Ob/Gyn Department. Instead, the
Perinatal QA Committee usurped the role of Department Chairperson Harrington, even though Dr. Harrington is the proper person
to conduct peer review under the Fair Hearing Plan and Correction Action Policy, Section 1.2.
72. The so-called corrective action was initiated under Article I of the Fair Hearing Plan and Corrective
Action Policy. But defendants failed to follow and comply with Article I in several
material respects. Under Article I, the Chair of the MEC must either appoint
the Department Chair or an ad hoc investigative committee. The “Perinatal
Quality Assurance Ad Hoc committee” appointed itself or was secretly appointed by Defendants Linneweh and/or Olden.
73. YVMH’s “Fair Hearing Plan and Corrective Action Policy”
provides that a physician under investigation is supposed to receive a letter notifying the physician that an Ad Hoc Investigative
Committee has been appointed and include a description of the specific issues the committee is investigating. The FHP also specifies that the Ad Hoc Committee is supposed to meet with the physician to address all
of the specific issues before issuing any report or recommendation. Here, Dr.
Smigaj never received any such letter and never met with the Ad Hoc Committee to discuss the issues it was investigating;
in fact, she did not know that such a committee had even been formed. She first
learned of its existence on September 4, 2008, the day she was notified that her privileges were being suspended later that
evening.
74. Under the Fair Hearing Plan and Corrective Action Policy, no member of an Ad Hoc Investigative
Committee may be a “physician who is in direct economic competition with the Member under investigation.” FHP, Article I, Section 1.4(B). Here,
three out of six members of the Perinatal QA Ad Hoc Committee are in direct economic competition with Dr. Smigaj. (Dr. Rowles,
Johns, and Dr. Jach; defendant Dr. Olden, who attends most of the committee’s meetings and strongly influences its decisions,
is also a direct economic competitor.)
75. Under the Fair Hearing Plan and Corrective Action Policy, an Ad Hoc Investigative Committee
has no power to act, but only to “submit, in writing, a report to the Medical Executive Committee for action.” FHP, Article I, Section 1.4(E). The Ad
Hoc Investigative Committee failed to prepare and submit a report to the Medical Executive Committee. Instead, the unauthorized Ad Hoc Investigative Committee caused the Article I investigation to transform
into an Article II summary suspension without justification. The Ad Hoc Investigative
Committee switch to Article II is a material violation of the Medical Staff Bylaws.
76. On October 14, 2008, Dr. Smigaj gave notice of her intent to seek injunctive relief to defendant’s
attorney, Dana Kenny, of Miller Nash, LLP, in Seattle, Washington. Dr.
Smigaj’s motion for a temporary restraining order, preliminary injunction and declaratory relief to stop YVMH’s
publication of false and misleading information about the purported suspension and investigation will be coupled with a request
for expedited discovery, including testimony and the production of documents.
V. SECOND CAUSE OF ACTION
BREACH OF CONTRACT
77. Plaintiffs reallege
and incorporate by reference all preceding paragraphs.
78. The medical staff of YVMH is an unincorporated association.
79. The Bylaws, Rules and Regulations, and Policies (including the Fair hearing Plan and Corrective Action
Policy) are a contract between and among members of the Hospital Staff and the Hospital, including all defendants and plaintiff
Smigaj.
80. Defendants have breached the contract by failing to comply with the Bylaws, Rules and Regulations,
and Policies, by usurping power assigned to others, and by otherwise violating the Bylaws, Rules and Regulations, and Policies.
81. The implied covenant of good faith and fair dealing requires defendants to cooperate with Dr. Smigaj and
refrain from bad faith, without justification, activities so that Dr. Smigaj may have the full benefit of performance of the
Bylaws, Rules and Regulations, and Policies.
82. The defendants breached the implied covenant of good faith and fair dealing
by summarily suspending Dr. Smigaj’s privileges and taking other adverse action against her in bad faith and in breach
of her contract rights, and by failing to correct or reverse its wrongful actions after Dr. Smigaj brought the breaches to
defendants’ attention numerous times.
83. As a direct and proximate result of the defendant’s breaches of contract
and breaches of the implied covenant and good faith and fair dealing, Dr. Smigaj has suffered damages in an amount to be proven
at trial.
VI. THIRD
CAUSE OF ACTION
VIOLATION OF COMMON LAW RIGHT TO A FAIR PROCEDURE
84. Plaintiffs reallege and incorporate by reference all preceding paragraphs.
85. Independent of her contractual rights with the Yakima Valley Memorial Hospital, Dr. Smigaj has a common
law right to procedural fairness in any proceeding by the Hospital to suspend or terminate her privileges. The Hospital’s duty to Dr. Smigaj to provide a fair procedure exists because the public has
substantial interest in the operation of hospitals and because both doctors and patients can suffer when qualified physicians
are wrongfully denied clinical privileges. YVMH breached its duty to Dr. Smigaj
by summarily suspending her privileges illegally and without justification, without adequate notice and a fair opportunity
to be heard before the action was taken, and subsequently publishing false and misleading information to Group Health and
possibly other third-party payors which is causing Dr. Smigaj ongoing irreparable harm.
YVMH has signaled its intent to respond to all future inquiries from payors by furnishing them the same false and misleading
information that they sent to Group Health. Most of the payors who cover Dr.
Smigaj’s patients recertify Dr. Smigaj annually during October and November. If
Dr. Smigaj loses these certifications, it will very likely destroy her medical practice.
YVMH specifically breached its duty by failing to make a reasonable investigation of the facts before taking such drastic
action and by willfully disregarding detailed reviews of all three cases by two highly qualified leading OB/Gyns in Washington
and Oregon who found no justification whatsoever for imposition of any suspension of her privileges based on the three cases
reviewed by her competitors.
VII. FOURTH
CAUSE OF ACTION
SHAM PEER REVIEW
86. Plaintiffs reallege and incorporate by reference all preceding paragraphs.
87. Defendants have engaged in the tort of sham peer review by (a) failing to follow the Medical
Staff’s peer review policies and procedures, (b) usurping the authority of the appropriate peer review authorities,
and (c) misusing and abusing the peer review process for discriminatory and anti-competitive reasons. Defendants’ actions are motivated by malice and an anticompetitive animus.
88. Defendants’ tortious acts have proximately caused damage to plaintiffs.
VIII. FIFTH
CAUSE OF ACTION
BREACH OF FIDUCIARY DUTY
89. Plaintiffs reallege and incorporate by reference all preceding
paragraphs.
90. Defendant YVMH has a fiduciary duty to the public at large to grant qualified physicians
obstetrical privileges to practice obstetrics at the Yakima Valley Memorial Hospital without wrongfully suspending their Medical
Staff’s privileges or wrongfully interfering with the Medical Staff’s ability to provide obstetric services.
91. Yakima Valley Memorial Hospital is an essential facility in the region with regard to obstetrics,
as it is the only hospital in the Yakima region that provides obstetrical services. There is no public hospital in Yakima.
The other hospital in the region, Yakima Regional Medical and Cardiac Center, is owned by a private for-profit corporation,
and does not currently provide obstetrical services. Thus, the public relies
exclusively on the Yakima Valley Memorial Hospital, a non-profit community hospital,
to provide obstetrical services in a fair manner.
92. As a nonprofit corporation, defendant YVMH has fiduciary duties to all interest holders
of the Hospital, including members of the Medical Staff, to apply Hospital and Medical Staff Bylaws, Rules and Regulations
and Policies in a fair, nondiscriminatory, and consistent manner. Yakima Valley
Memorial Hospital breached its fiduciary duty to Dr. Smigaj by attempting to summarily terminate her clinical privileges without
justification, and initiating other so-called “corrective action” against her, in bad faith, which has caused
and will continue to cause Dr. Smigaj damages in an amount to be proven at trial.
IX. SIXTH CAUSE OF ACTION
TORTIOUS INTERFERENCE WITH BUSINESS EXPECTANCY
93. Plaintiffs reallege and incorporate by reference all preceding paragraphs.
94. At the time when defendants summarily suspended Dr. Smigaj’s privileges, Dr. Smigaj had a contract
with YVMH as a member of the hospital’s Medical Staff, and a business expectancy with her patients, referring physicians,
and with the members of her private medical practice, Cascade Women’s Healthcare Associates, PLLC, all with substantial
future economic benefit. YVMH employs or controls OB/Gyn physicians who are in
direct economic competition with Dr. Smigaj and the other defendants are direct economic competitors of plaintiff Smigaj and
her employer, Cascade Women’s Healthcare Associates. Defendants had a strong
economic motive to interfere with Dr. Smigaj’s medical practice and business relationships in order to preserve its
monopoly over obstetrical services in Yakima County by preventing Dr. Smigaj and Cascade Women’s Healthcare Associates
from assisting Yakima Regional Medical Center from re-establishing its obstetrics program.
With knowledge of Dr. Smigaj’s contract and business expectancy, and without privilege, defendants intentionally
caused the termination of the contract and business expectancy for an improper purpose and/or by improper means, which proximately
caused damage to Dr. Smigaj and Cascade Women’s Healthcare Associates, P.L.L.C., in an amount to be proven at trial.
SEVENTH CAUSE OF ACTION
VIOLATION OF THE WASHINGTON
CONSUMER PROTECTION ACT
[RCW 19.86]
95. Plaintiffs reallege and incorporate by reference all preceding paragraphs.
96. By attempting to summarily suspending Dr. Smigaj’s clinical privileges without justification,
defendants have engaged in an unfair method of competition or an unfair or deceptive act or practice. The practice is an unfair method of competition and/or unfair or deceptive because the defendants suspended
Dr. Smigaj’s hospital privileges in contravention of its contractual obligations to Dr. Smigaj for discriminatory, economic,
and/or other reasons unrelated to patient care. The act or practice affects the
public interest, and/or has the capacity to deceive a substantial portion of the public because it adversely affects (1) all
of the members of the hospital’s Medical Staff who have contract rights with the defendant under the Staff Bylaws, Rules
and Regulations and Policies; and (2) all patients and potential patients of Dr. Smigaj, and others at Yakima Valley Memorial
Hospital who rely or will rely on obstetrical and gynecology surgical services performed at the Hospital, and are being misled
about Dr. Smigaj’s qualifications and precluded from exercising their choice of a qualified physician. Yakima Valley Memorial Hospital is the only hospital in the
greater Yakima area that provides obstetrical services, thus scrutiny of its competitive practices should be heightened. The plaintiffs have been injured in their business and property by the illegal suspension
and publication of the actions defendants have taken against her. The defendants’
act of illegally suspending all of Plaintiff’s privileges without justification proximately caused plaintiff’s
injury.
X.
EIGHTH CAUSE OF ACTION
DEFAMATION
97. Plaintiff realleges and incorporates by reference all preceding paragraphs.
98. With reckless disregard and bad faith, the defendant has published unprivileged
defamatory statements about Dr. Smigaj publicly to Group Health Cooperative and other third parties that cast serious aspersions
on Dr. Smigaj’s competency to practice obstetrics and gynecological medicine.
The defamatory statements were false and/or create a false impression. The
defendant knew or should have known that the statements were false. The false
statements have injured Dr. Smigaj’s business and reputation in the community and are defamatory per se.
99. As a result of defendant’s defamatory statements about Dr. Smigaj, Dr. Smigaj has
suffered economic and non-economic damages in an amount to be proven at trial.
PRAYER FOR RELIEF
WHEREFORE,
plaintiffs pray for the following relief:
A. For a temporary restraining order, preliminary injunction and
permanent injunction;
B. For declaratory relief declaring purported “precautionary”
or summary suspension of Dr. Smigaj’s clinical privileges completely null and void and/or a declaration that her privileges
were reinstated as of September 4, 2008.
C. For judgment in favor of plaintiff and an award of damages
in an amount to be proven at trial;
D. For an award of reasonable attorney’s fees and costs;
E. For further or additional relief as the Court may deem equitable,
appropriate or just under the circumstances.
________________________________________
Robert N. Meals, WSBA #19990
Law Offices of Robert N. Meals
P.O. Box 659
Langley,
WA 98260
360-221-0397 (telephone)
360-221-8230 (facsimile)
Attorney for Plaintiffs
____________________________________________
Lawrence R. Cock, WSBA #20326
Diana P. Danzberger, WSBA #24818
CABLE, LANGENBACH, KINERK & BAUER, LLP
1000 Second Avenue, Suite 3500
Seattle, Washington 98104
Attorneys for Plaintiffs
