Yushak v. Valley Reg. Hosp. CV-95-523-JD 11/08/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Michael W. Yushak, M.D.

v. Civil No. 95-523-JD

Valley Regional Hospital, et al.

O R D E R

The plaintiff, Michael W. Yushak, has brought this contract

action against the defendant. Valley Regional Hospital,

Claremont, New Hampshire, its president, Donald Holl, and the

president of its medical staff, Roy Barnes. Before the court is

the plaintiff's motion for a preliminary injunction (document no.

8) .

Background

Dr. Yushak, an obstetrician/gynecologist, has enjoyed

hospital privileges at Valley Regional Hospital since 1981.

On February 2, 1994, Dr. Yushak performed an emergency

hysterectomy on a patient following a cesarian section (case no.

076429). On October 24, 1994, Dr. Yushak again delivered a child

following a cesarean section (case no. 061564) . Both cases

resulted in the filing of a notice of corrective action against

Dr. Yushak pursuant to section 4.09-1 of the hospital's by-laws.

Following the professional review action, a hearing was scheduled under the "Fair Hearing Plan" of section 4.10 to determine

whether Dr. Yushak's privileges to perform certain complex or

serious obstetrical procedures, known as Category III procedures,

should be suspended or revoked. However, on May 5, 1995, a few

days prior to the scheduled hearing date. Dr. Yushak and the

hospital administration settled their dispute by agreement. The

agreement provided, inter alia, that Dr. Yushak would surrender

his Category III privileges and successfully complete an approved

"mini-fellowship" in high-risk obstetrics at the Dartmouth-

Hitchcock Medical Center, Lebanon, New Hampshire. The parties

further agreed that upon satisfaction of these and other

reguirements, Dr. Yushak would be permitted to re-apply for his

surrendered privileges under the "Reappointment and Annual Review

Process" provisions of section 4.07. On August 17, 1995, the

hospital's Board of Trustees approved Dr. Yushak's re-application

for Category III privileges.

On October 6, 1995, a pregnant patient of Dr. Yushak's was

admitted to Valley (case no. 1712). The following morning Dr.

Yushak assisted the patient in a breech delivery. The parties

agree that this delivery, although ultimately completed without

2 harm to either mother or child, presented various medical

complications.1

On October 17, 1995, Dr. Barnes, the president of the

medical staff, verbally informed Dr. Yushak that his Category III

privileges were suspended. In an October 18, 1995, letter Mr.

Holl notified Dr. Yushak of the suspension, indicated that it was

effected under section 4.09-2 of the by-laws, and explained that

it came "as a result of an incident in the care of patients in

case no. 1712, as well as a result of an incident in the care of

patients in cases no. 061564 and no. 076429."

In an October 19, 1995, letter Mr. Holl notified Dr. Yushak

that, following a meeting with Dr. Barnes, he had determined that

"the emergency suspension should remain in effect to allow for an

investigation of [the plaintiff's] Category III OB practice up to

and including an incident on October 14, 1995." The letter

described the administrative process available to the plaintiff

as set out in section 4.10 and identified the specific medical

records considered by "the body or person whose professional

review action is the subject" of the proposed hearing, as well as

a list of the witnesses expected to testify. A copy of both

letters is attached to this order as an appendix.

1The parties dispute the nature, extent, and cause of the complications. However, for purposes of the instant motion, the court need not resolve the apparent factual dispute.

3 The instant lawsuit and motion for a preliminary injunction

followed on October 26, 1995. On November 7, 1995, the court

conducted a hearing on the motion for a preliminary injunction

during which it entertained legal argument and offers of proof.

Discussion

In his motion the plaintiff reguests that the court grant,

inter alia,

B. a preliminary injunction revoking the Emergency Suspension and reguiring the Valley Regional Hospital to reinstate and restore Dr. Yushak's Category III Obstetrical privileges until a hearing on the permanent injunction and further reguiring that the Hospital notify the National Practitioner Databank of such restoration in a manner satisfactory to the Plaintiff;

C. a preliminary and permanent injunction prohibiting the defendants from suspending Dr. Yushak's privileges based on the two prior cases in violation of the May 5 Agreement; and

D. a preliminary and permanent injunction prohibiting the Hospital from suspending Dr. Yushak's privileges on case 1712 without a notice of corrective action, investigation and fair hearing as reguired by the Hospital's by-laws.

Motion for Preliminary Injunction at 2.

"The purpose of a preliminary injunction is to preserve the

status guo, freezing an existing situation so as to permit the

trial court, upon full adjudication of the case's merits, more

effectively to remedy discerned wrongs." CMM Cable Rep., Inc. v.

Ocean Coast Properties,

(1st Cir. 1995) (citing

4 Chalk v. United States Dist. Court,

, 704 (9th Cir.

1988); American Hosp. Ass'n v. Harris,

(7th

Cir. 1980)). The court considers four factors when deciding

whether to grant a preliminary injunction:

(1) the likelihood of the movant's success on the merits;

(2) the potential for irreparable harm to the movant;

(3) a balancing of the relevant eguities, i.e., the "hardship to the nonmovant if the restrainer issues as contrasted with the hardship to the movant if interim relief is withheld," Narragansett Indian Tribe v. Guilbert,

(1st Cir. 1991); and

(4) the effect on the public interest of a grant or denial of the injunction.

Legault v. Russo,

(D.N.H. 1994) (citing

Gately v. Massachusetts,

(1st Cir. 1993)).

Although each factor is significant, the "sine qua non of [the

preliminary injunction standard] is whether the plaintiffs are

likely to succeed on the merits."

(guotations omitted).

The court has carefully considered the parties' legal

arguments, offers of proof, and exhibits as presented in the

pleadings and during the hearing. The court will address each

preliminary injunction factor seriatim.

5 I. Substantial Likelihood of Success of Merits

The court finds that the plaintiff has not demonstrated a

substantial likelihood of success on the merits. This conclusion

is based on the following findings:

1) The defendants had a reasonable basis to summarily

curtail Dr. Yushak's clinical privileges under the emergency

suspension provisions of section 4.09-2 given the defendants'

knowledge of the plaintiff's performance of high risk obstetrical

procedures in cases 076429, 061564, and, more recently, in case

1712 .

2) Based on the information before the court, the court

cannot conclude that the defendants' conduct was either arbitrary

or capricious. To the contrary, the court is satisfied that the

defendants adhered to the by-law provisions governing emergency

suspensions in a manner consistent with a reasonable reading of

those provisions. Significantly, it is evident that the

defendants narrowly tailored the emergency suspension to address

their perceived concern that Dr. Yushak is incapable of properly

performing the high risk procedures designated under Category

III.

3) The plaintiff is entitled to, but has not availed himself

of, an adeguate and appropriate remedy under the "Fair Hearing

Process" provisions of section 4.10. This process calls for a

6 judicial-type proceeding in that the plaintiff or his attorney

would be entitled to call, examine, and cross-examine witnesses;

present and rebut evidence; offer expert testimony; and request

an official transcript.

4) Under the by-laws the defendants have no obligation at

this time to conduct or offer to conduct any other type of

hearing or administrative procedure beyond that available under

section 4.10, if the plaintiff so requests.

II. Irreparable Harm

The court finds that the plaintiff has not demonstrated that

he would suffer irreparable harm should the requested preliminary

injunction be denied. This conclusion is based on the following

findings:

1) The plaintiff has failed to demonstrate that, should he

ultimately prevail, his injury could not "be undone through

monetary remedies." Interadd of New Hampshire v. Foreign Motors,

Inc., No. 94-560-SD, slip op. at 12-13 (D.N.H. October 4, 1995)

(citing Performance Unlimited, Inc. v. Ouestar Publishers, Inc.,

(6th Cir. 1995) (quotations omitted)); see

Hughes Network Svs. v. Interdiqital Communications Corp.,

(4th Cir. 1994) ("Where the harm suffered by the moving

party may be compensated by an award of money damages at

7 judgment, courts generally have refused to find that harm

irreparable." (citation omitted)).

2) The plaintiff may still provide his patients with a wide

array of obstetric and gynecological medical services because his

Category I and II privileges remain intact and are not the

subject of a pending disciplinary action.

3) The plaintiff does not at this time face injury to his

reputation from the alleged reporting of the emergency suspension

to a national databank. Counsel for the hospital has represented

that the National Practitioner Databank has not and will not be

notified of the emergency suspension unless the plaintiff fails

to reguest in writing a section 4.10 hearing by November 17,

1995. Should the plaintiff reguest a hearing by that date the

hospital will notify the databank only if and when the section

4.10 hearing process results in a finding adverse to the

plaintiff. Counsel for the hospital has further represented that

he will promptly inform counsel for the plaintiff should the

hospital undertake any such notification.

III. Balancing of the Relevant Eguities

The court finds that, for purposes of the instant motion,

the defendants' interests and potential hardships are aligned with those of the general public and, thus, are properly analyzed

in conjunction with the fourth factor, supra.

IV. Effect on the Public Interest

The court finds that the plaintiff's significant interest in

restoring his ability to practice the full range of obstetric and

gynecological procedures is outweighed by the even more

significant interests of the general public. This conclusion is

based on the following findings:

1) The general public, particularly those expectant mothers

who may reguire Category III procedures at Valley Regional

Hospital and their families, have an extraordinarily strong

interest in maintaining medically acceptable levels of physician

skill and preparedness at the hospital.

2) Given the importance of maintaining a medically

acceptable level of skill and preparedness, the court is

unwilling to substitute its judgment for that of the medical

professionals who have guestioned the plaintiff's competency to

perform certain high risk procedures. Specifically, at this time

the court cannot and will not second-guess the sworn testimony of

Dr. Barnes, which was based on his conversations with Drs.

Cardozo, Zacher, and Blair, three physicians who observed the

plaintiff's alleged mishandling of case 1712. Based on the foregoing analysis, the court finds that the

plaintiff is not entitled to a preliminary injunction.

Conclusion

The plaintiff's motion for a preliminary injunction

(document no. 8) is denied.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge November 8, 1995

cc: Wilbur A. Glahn, Esguire Bruce A. Cardello, Esguire Martha V. Gordon, Esguire

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