Blaine et al v. North Brevard County Hospital District

Filing 155

ORDER granting 137 Motion for summary judgment. The Clerk is DIRECTED to enter judgment in favor of Defendant North Brevard County Hospital District and against Plaintiffs Germaine Blaine, Cynthia Bryant, Juan Castro, Ashish Dalal, Firas Muwal la, Brendan Prendergast, and Richard Sprawls on all counts of the Amended Complaint (Doc. 81). All other pending motions are DENIED AS MOOT. The Clerk is DIRECTED to terminate any deadlines and close the file. Signed by Judge Roy B. Dalton, Jr. on 8/22/2019. (PKK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
GERMAINE BLAINE; CYNTHIA
BRYANT; JUAN CASTRO; ASHISH
DALAL; FIRAS MUWALLA;
BRENDAN PRENDERGAST; and
RICHARD SPRAWLS,
Plaintiffs,
v.

Case No. 6:18-cv-487-Orl-37DCI

NORTH BREVARD COUNTY
HOSPITAL DISTRICT,
Defendant.
_____________________________________
ORDER

Before the Court is Defendant North Brevard County Hospital District, d/b/a
Parrish Medical Center’s (“PMC”) Motion for Summary Judgment. (Doc. 137
(“Motion”).) Plaintiffs responded (Doc. 148), and PMC replied (Doc. 154). On review, the
Motion is granted.
I.

BACKGROUND 1

This case is about a public hospital’s decision to deny seven doctors reappointment
of medical privileges and the process it used to get there. Plaintiffs are oncologists

The facts recited here are not the actual facts of the case. See Davis v. Williams, 451
F.3d 759, 763 (11th Cir. 2006). Rather, they reflect Plaintiff’s “best case”—that is, the Court
must consider the facts in the light most favorable to Plaintiff. See Robinson v. Arrugueta,
415 F.3d 1252, 1257 (11th Cir. 2005); see also Walker v. City of Riviera Beach, 212 F. App’x 835,
837 (11th Cir. 2006).
1

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employed by Health First, a health system based in Brevard County, who practice in
Brevard County at various facilities. (Doc. 81, ¶¶ 2, 7.) Each successfully applied for
medical privileges at PMC and had been re-appointed every time their terms came up.
(Id. ¶ 12.) So when it came time to renew in 2017, they followed the same process outlined
in PMC’s Medical Staff Bylaws (“Bylaws”): submitting applications for PMC’s CEO
George Miktarian to review. (Id.; Doc. 33-1, ¶ 9; Doc. 81-1, pp. 33–38 (Bylaws
reappointment process).) Dr. Miktarian then transmitted Plaintiffs’ applications to the
Credentials and Medical Ethics Committee (“CMEC”), which sent the applications to
PMC’s Medical Executive Committee (“MEC”). (Doc. 81,¶¶ 21–22.) The MEC reviewed
the applications and, on November 21, 2017, provided a favorable recommendation
regarding Plaintiffs’ reappointment to PMC’s Board of Directors (“Board”). (Id. ¶ 23.) All
seemed well; Plaintiffs believed their applications would be approved again. (Doc. 81, ¶
12; e.g., Doc. 143-4, p. 57:19–23; Doc. 143-7, pp. 82:5–83:3.)
Meanwhile PMC had been seeking renewal of accreditation of their cancer
program from the Commission on Cancer (“CoC”). This process began in 2016 and
involved providing data and working closely with CoC staff, who would do a site visit.
(Doc. 143-11, pp. 16:1–15, 40:17–41:2, 51:21–54:12.) When the process started, Plaintiff Dr.
Dalal was chair of PMC’s Cancer Committee and the representative of Health First. (Doc.
143-4, pp. 40:6–17, 41:6–43:7, 64:20–22.) At the September meeting, PMC’s accreditation
initiative was discussed and the subject of data came up, specifically that PMC needed
data from Health First physicians to complete the accreditation process. (Id. at 40:6–17,
41:6–43:7.) Dr. Dalal said he would work on it and at a later meeting reported back that
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Nancy Payne, Health First’s System Director, was the person to talk to. (Id.; Doc. 145-1,
pp. 33:24–43:8; Doc. 143-8, p. 14:10–12.) He said he would coordinate with her, and PMC
separately reached out to her requesting data. (Doc. 143-4, pp. 40:6–17, 41:6–43:7; Doc.
145-1, pp. 33:24–43:8; Doc. 143-8, pp. 27:1–28:8, 30:12–13, 32:7–12; 34:13–15, 41:17–22,
40:23–41:8 (Payne received emails over two years regarding data and received
instructions not to provide certain information to PMC).) PMC didn’t get everything they
were looking for and continued to reach out to Nancy Payne over the next year, as all
data requests were funneled her way. (Doc. 143-8, pp. 41:17–22, 52:5–8, 55:18–56:25,
57:24–58:10, 61:1–63:10, 64:6–65:4, 67:8–25, 75:4–25.) Separately, PMC asked Dr. Bryant for
some specific information regarding radiation and she complied. (Doc. 143-2, pp. 100:18–
101:19; Doc. 145-4, pp. 33:17–34:18.) Nancy Payne, however, was unresponsive to
numerous inquiries PMC made about the data. (Doc. 143-8, pp. 41:17–22, 52:5–8, 55:18–
56:25, 57:24–58:10, 61:1–63:10, 64:6–65:4, 67:8–25.)
While this was going on, the composition of PMC’s Cancer Committee changed.
Dr. Dalal was replaced by Dr. Deligdish, an oncologist in charge of a different practice
group, as head of the committee. (Doc. 143-4, pp. 90:13–92:6; Doc. 143-5, pp. 10:4–20,
105:18–24, 124:12–20.) PMC noticed a decline in the amount of patients Plaintiffs treated
at PMC, and chalked it up to Plaintiffs’ association with Health First, which had its own
facilities. (Doc. 145-2, p. 35:7–24; Doc. 33-3, ¶¶ 8–12.) So sometime in September 2017,
after learning that PMC’s numerous requests for data from Health First were
outstanding, Dr. Deligdish phoned several Plaintiffs on PMC’s behalf to discuss their
association with Health First and mentioned the data requests to some. (Doc. 145-1, pp.
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89:24–90:11; Doc. 143-5, pp. 105:4–106:19, 109:8–14.) He met with Dr. Dalal in person.
(Doc. 143-5, pp. 105:4–106:19.) At that time, Plaintiff Dr. Muwalla was the medical
director of Health First, and on hearing of this data issue, he went to Nancy Payne. (Doc.
143-7, pp. 42:7–9, 43:11–13.) According to Dr. Muwalla, she told him she’d get back to
him and couldn’t release the data PMC was requesting absent approval from her
superiors. (Id. at 43:16–24.) Those in charge at Health First decided not to release the data.
(Id. at 56:16–25.)
Matters came to a head when Plaintiffs sought reappointment. Their employer,
Health First, had decided not to comply with PMC’s requests for data for re-accreditation
purposes. (Doc. 145-3, pp. 18:6–18, 20:24–25:22.) PMC informed the CoC surveyor during
the on-site visit of the data issues with Health First, who empathized with PMC’s
situation and created workarounds for some of the data requests. (Doc. 143-11, pp. 51:21–
54:12, 73:10–74:17, 81:19–83:6.) Yet at the time Plaintiffs sought reappointment, there were
still outstanding data inquiries from Health First. (Id. at 73:10–74:17, 81:19–84:25.) So
although the MEC recommended approving Plaintiffs’ reappointment, when their
applications went to the Board, Dr. Miktarian distributed a memo he had Marsha
Richardson, PMC’s Director of Oncology Services, prepare that detailed all the times
PMC had requested data from Health First, naming Plaintiffs. (Doc. 145-2, pp. 12:1–24,
79:23–81:3; Doc. 145-4, pp. 24:20–25, 87:18–92:2.) He also circulated a draft letter prepared
by PMC’s legal counsel addressed to each Plaintiff. (Doc. 145-2, pp. 85:1–86:3.) At the
meeting, the Board decided to send back Plaintiffs’ reappointment applications to the
MEC because of these data issues (“December 4 Meeting”). (Id. at 57:3–8; Doc. 33-2, pp.
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2–15.)
The next day, Dr. Miktarian sent each Plaintiff a letter notifying them their refusal
to provide data constituted a breach of PMC’s Bylaws and could be a reason to deny
reappointment. (Doc. 33-2, pp. 16–29 (“December 5 Letter”).) He gave them five days to
turn over any outstanding data and noted that even if they attempted to cure now, their
applications could still be denied. (Id.)
Plaintiffs went to Health First management with the letters, as they didn’t own the
data and couldn’t individually provide it. (Doc. 143-1, pp. 45:4–49:23; Doc. 143-2, pp.
93:15–99:24; Doc. 143-3, pp. 33:19–22, 41:20–46:1; Doc. 143-3, pp. 44:13–50:8; Doc. 143-7,
pp. 57:17–64:3; Doc. 143-9, pp. 20:3–22:18; Doc. 143-10, pp. 59:25–60:3, 78:14–81:18.) Health
First decided it would handle the entire situation through its legal department, taking the
position that it didn’t need to hand over the data as PMC was wrongfully attempting to
deny these reappointment applications since Plaintiffs had no clinical issues. (Doc. 33-3,
pp. 30–33; Doc. 143-1, pp. 53:12–56:2, 63:18–75:14; Doc. 143-2, pp. 101:22–108:13; Doc. 1433, pp. 55:2–64:24; Doc. 143-4, pp. 57:7–62:16; Doc. 143-7, pp. 57:17–64:3, 74:2–24; Doc. 1439, pp. 20:3–22:18, 100:5–19; Doc. 143-10, pp. 82:3–83:22.) Letters were exchanged staking
out the parties’ respective positions. (Doc. 33-1, ¶¶ 26–31, 33, 35–39; Doc. 33-2, pp. 36–49,
51–62; Doc. 33-3, pp. 30–33, 35–41.)
The MEC met after the Board sent back Plaintiffs’ applications to the MEC and
discussed Plaintiffs’ reappointment. (Doc. 33-2, pp. 31–34.) Plaintiff Dr. Sprawls appeared
at the meeting to provide his side of the story: he objected to the revocation of his
privileges, the Bylaws didn’t permit denial of his reappointment for this data reason, the
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provision of data had no bearing on his clinical capabilities, the data requests hadn’t been
made to him, and he had no control over the data. (Doc. 143-10, pp. 97:4–101:11.) The
MEC decided to support the Board if the applications were denied. (Doc. 33-2, p. 33.)
The Board met again and heard Plaintiffs hadn’t complied with data requests as
Health First was refusing to turn it over. (Doc. 145-1, pp. 67:6–68:6.) At the same time,
PMC was working with CoC to get an extension on its time to comply with two
outstanding data requests and learning what to do to finish the accreditation process
despite this missing data. (Doc. 143-11, pp. 81:19–87:13.) The Board decided to deny
Plaintiffs’ reappointment applications at the January 8 Meeting, and Dr. Miktarian sent
each Plaintiff a letter notifying them of the denial and the expiration of their privileges.
(Doc. 33-2, pp. 64–77.) He offered them the opportunity to appear before the Board for an
interview and appeal the decision as the Bylaws allow. (Id.)
Feeling steamrolled, Plaintiffs responded via letter prepared by Health First’s
counsel. (Id. at 79–99.) They initially accepted the interview offer but then didn’t respond
to Dr. Miktarian’s request to provide dates and times, later deciding “to forego” the
interview. (Id.; Doc. 33-3, pp. 2–28, 43–44, 46–47.) They also didn’t send any patient
information or attempt to provide coordination of care plans. (Doc. 143-1, pp. 73:20–74:6;
Doc. 143-2, p. 122:20–15; Doc. 143-3, pp. 60:2–13, 62:6–15; Doc. 143-7, pp. 72:15–73:3; Doc.
143-9, p. 97:1–12; Doc. 143-10, p. 115:21–25.)
With privileges gone, Plaintiffs filed this lawsuit alleging two claims initially: PMC
violated their procedural due process by denying them reappointment without a hearing,
and PMC breached the Bylaws by denying the applications for not providing the data,
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which Plaintiffs dub a non-clinical business reason. (Doc. 1.) For the breach claim, they
say Dr. Miktarian committed intentional fraud by telling the Board Plaintiffs failed to
comply with numerous data requests made to them, repeating this in the December 5
Letter, and telling this to the MEC. (Id. ¶¶ 18, 24–25, 28–31, 61–62, 64–66.) With the
Complaint, Plaintiffs moved for preliminary injunction. (Doc. 5.)
Following briefing and a hearing on the preliminary injunction (Docs. 32, 33, 35,
38, 39), the Court granted the motion in part on the procedural due process claim,
ordering PMC to provide Plaintiffs a hearing in conformity with its Bylaws and
reinstating Plaintiffs’ privileges in the meantime. (Doc. 42 (“First PI Order”).) PMC
complied, holding a hearing on Plaintiffs’ reappointment applications in conformity with
the Bylaws before a neutral decisionmaker where Plaintiffs were represented by counsel
and presented witness testimony and evidence (“Ad Hoc Committee”). (Doc. 81-1, pp.
92–96; Docs. 66-4, 66-5 (hearing transcript).) The focus was on the data: whether PMC
requested data from Plaintiffs, whether Plaintiffs received data requests, how Plaintiffs
responded, should their responses cost them reappointment, whether they provided the
data, and whether denial of their reappointment applications was appropriate for not
providing the data. (Doc. 81-1, p. 93.)
On consideration, the Ad Hoc Committee issued Findings and Recommendations.
(Doc. 81-1, pp. 94–95.) First, the Ad Hoc Committee addressed “the central question—do
the Medical Staff Bylaws require [Plaintiffs] to have supplied, or caused to be supplied,
the requested data?” (Id. at 94.) It found:

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(Id. at 94–95.) So the Ad Hoc Committee answered the first question:
[Plaintiffs] were aware of the unfulfilled requests for Patient Data and even
if they did not have control of the data, they had a duty to supply it, or cause
it to be supplied, as part of their obligations as staff members of [PMC].
(Id. at 96.)
Next, the Ad Hoc Committee asked, “Was denial of [Plaintiffs’] reappointment
applications allowed under the Medical Staff Bylaws for the failure to provide the Patient
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Data request?”:

(Id.) The Ad Hoc Committee concluded:

(Id.) Plaintiffs submitted exceptions to the Ad Hoc Committee’s recommendation, as to
the overall conclusion and several other findings. (Id. at 98–101.) Following oral
argument, Dr. Miktarian issued a ruling denying Plaintiffs’ exceptions (id. at 103–107)
and then issued his disposition with detailed findings of fact and his decision (id. at 109–
121.) He concluded that denial of reappointment was appropriate. (Id. at 120–21.)
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Plaintiffs appealed Dr. Miktarian’s disposition to the Board, which reviewed the
record and discussed the issues at a meeting on October 1. (Id. at 123–25.) It unanimously
voted to affirm Dr. Miktarian’s disposition to deny Plaintiffs’ applications for
reappointment and “found no information that would contravene its January 8, 2018
decision regarding the physicians’ reappointment applications.” (Id. at 125.) With that,
Plaintiffs no longer held privileges at PMC.
Plaintiffs did not appeal the Board’s decision in state court as the Bylaws allowed.
(Doc. 77-6, p. 6.) Instead, they sought leave to file an amended complaint in this case—to
bolster their pending claims with facts from the latest proceedings and tack on a
substantive due process claim. (Doc. 62.) After this, they moved for a second preliminary
injunction to restore their privileges pending trial. (Doc. 67.) Plaintiffs were allowed to
file an amended complaint (Docs. 80, 81), and the Court held a hearing on the second
preliminary injunction motion. (Docs. 90, 91.) The second go around, the Court denied
Plaintiffs’ request for a preliminary injunction, finding: (1) Plaintiffs had now received a
full panoply of procedural due process; and (2) Plaintiffs had not established a likelihood
of success on the merits for their two other claims. (Doc. 94 (“Second PI Order”).)
With the close of discovery, the parties moved for summary judgment. Plaintiffs
seek partial summary judgment on three affirmative defenses (Doc. 136), and PMC seeks
summary judgment on all of Plaintiffs’ claims (Doc. 137). Briefing complete (Docs. 147,
148, 153, 154), the Court now takes up PMC’s fully dispositive motion. 2

The Court need not resolve Plaintiffs’ motion for partial summary judgment
because, as explained below, Plaintiffs’ claims do not survive summary judgment.
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II.

LEGAL STANDARDS

Summary judgment is appropriate only if the movant shows that there is no
genuine dispute as to any material fact and that [it] is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). As to issues for
which the movant would bear the burden of proof at trial, it must affirmatively show the
absence of a genuine issue of material fact and support its motion with credible evidence
demonstrating that no reasonable jury could find for the nonmoving party on all of the
essential elements of its case. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)
(citing United States v. Four Parcels of Real Prop. in Green & Tuscaloosa Ctys, 941 F.2d 1428,
1438 (11th Cir. 1991)).
As to issues for which the nonmovant would bear the burden of proof at trial, the
movant has two options: (1) it may simply point out an absence of evidence to support
the nonmoving party’s case; or (2) it may provide “affirmative evidence demonstrating
that the nonmoving party will be unable to prove its case at trial.” Four Parcels,
941 F.2d at 1438 (citing Celotex Corp., 477 U.S. at 325). “The burden then shifts to the
nonmoving party, who must go beyond the pleadings and present affirmative evidence
to show that a genuine issue of material fact exists.” Porter v. Ray, 461 F.3d 1315, 1320
(11th Cir. 2006) (citing Fitzpatrick, 2 F.3d at 1115–17).
“A factual dispute is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Four Parcels, 941 F.2d at 1437 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A court must view the evidence
and all reasonable inferences drawn from the evidence in the light most favorable to the
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nonmovant, Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006), such that “when
conflict arises between the facts evidenced by the parties, [the] court credit[s] the
nonmoving party’s version,” Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005).
However, “[the] court need not permit a case to go to a jury . . . when the inferences that
are drawn from the evidence, and upon which the nonmovant relies, are ‘implausible.’”
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996). “When opposing parties
tell two different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380
(2007).
III.

DISCUSSION

PMC seeks summary judgment on all claims: (1) violating their procedural due
process; (2) breach of Bylaws; and (3) violating their substantive due process. (Doc. 137.)
The Court addresses each in turn.
A.

Procedural Due Process

First, PMC argues summary judgment is appropriate on Plaintiffs’ procedural due
process claims since Plaintiffs received all the process due through the Ad Hoc
Committee hearing and Plaintiffs’ appeal. (Doc. 137, pp. 18–20.) In response, recognizing
the Court already found in the Second PI Order that Plaintiffs had now received all the
process that was due, Plaintiffs say their procedural due process claims were complete
when PMC terminated their privileges in January 2018 without a hearing. (Doc. 148, pp.
12–13.) PMC is right.
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“[A] procedural due process violation is not complete ‘unless and until the State
fails to provide due process.’” McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994)
(quoting Zinermon v. Burch, 494 U.S. 113, 123 (1990)). “In other words, the state may cure
a procedural deprivation by providing a later procedural remedy.” Id. If the matter
reaches federal court and “a procedural deficit appears, the matter should, at that point,
be remanded to the institution for its compliance with [applicable procedural]
standards.” Woodbury v. McKinnon, 447 F.2d 839, 846 (5th Cir. 1971) (quoting Ferguson v.
Thomas, 430 F.2d 852, 858 (5th Cir. 1970)). 3 And when the procedures that follow comply
with the requirements for procedural due process, “that ordinarily ends the matter.” Id.
(quoting Ferguson, 430 F.2d at 858).
Here, the Court finds that the requirements for procedural due process “were met
before final disposition of the case.” Id. As the Court stated in the Second PI Order,
Plaintiffs’ initial procedural due process claims were promising because their
reappointment applications had been denied without a pre-deprivation hearing before a
neutral decisionmaker. (Doc. 94, p. 7.) So the Court ordered and PMC provided such
process, “in the form of a Bylaws-compliant hearing before a neutral decisionmaker
where Plaintiffs were represented by counsel and could present evidence.” (Id. (citing
Doc. 42, pp. 11–16).) “No change in outcome was guaranteed.” (Id.) And through that
hearing, followed by Plaintiffs exhausting the appeal process, Plaintiffs received “the full

The decisions of the former Fifth Circuit rendered before October 1, 1981 are
binding on this circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc).
3

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panoply of due process protections.” (Id. at 8 (quoting Shahawy v. Harrison, 875 F.2d 1529,
1533 (11th Cir. 1989)).) With all this, Plaintiffs can no longer maintain the position that
PMC violated their procedural due process rights. PMC’s Motion is granted as to these
claims.
B.

Breach of Bylaws

Next, PMC seeks summary judgment on Plaintiffs’ breach of the Bylaws claims,
arguing chiefly that PMC is entitled to statutory immunity under Fla. Stat. § 395.0191(7)
because Plaintiffs haven’t proved up that PMC acted with intentional fraud. (Doc. 137,
pp. 21–24.) In response, Plaintiffs circle back to the argument that their reappointment
applications can’t be denied under the Bylaws for this data issue, which they argue is
unrelated to patient care. (Doc. 148, pp. 13–17.) Plaintiffs then say § 395.0191(7) immunity
doesn’t apply here because PMC was acting in furtherance of business interests; and even
if it does, whether Dr. Miktarian committed intentional fraud is a jury issue. (Id. at 17–
20.) PMC’s immunity argument carries the day.
Fla. Stat. § 395.0191(7) provides:
There shall be no monetary liability on the part of, and no cause of action
for injunctive relief or damages shall arise against, any licensed facility, its
governing board or governing board members, medical staff, or
disciplinary board or against its agents, investigators, witnesses, or
employees, or against any other person, for any action arising out of or
related to carrying out the provisions of this section, absent intentional
fraud.
This “immunizes [any] hospital against any action for monetary or injunctive relief if it
arises out of, or is related to, the appointment or reappointment process absent
intentional fraud.” Lawnwood Med. Ctr., Inc. v. Desai, 54 So. 3d 1027, 1031 (Fla. 4th DCA
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2011). 4 “To demonstrate intentional fraud, a plaintiff must show that the defendant made
a misrepresentation about a material fact, and that the defendant knew the statement to
be false.” Uche v. St. Lukes-St. Vincent Healthcare, Inc., No. 3:12-cv-865-J-32JBT, 2015 WL
476178, at *12 (M.D. Fla. Feb. 5, 2015) (first citing Pierson v. Orlando Reg’l Healthcare Sys.,
Inc., No. 6:08-cv-466-Orl-28GJK, 2010 WL 1408391, at *8 (M.D. Fla. Apr. 6, 2010), aff’d, 451
F. App’x 862 (11th Cir. 2012); then citing Myers v. Myers, 625 So. 2d 1214, 1215 (Fla. 5th
DCA 1995)).
Here, Plaintiffs latch intentional fraud onto Dr. Miktarian’s conduct at the
December 4 and January 8 Meetings, specifically when Dr. Miktarian informed the Board
that Plaintiffs hadn’t complied with numerous data requests and that this noncompliance jeopardized PMC’s accreditation renewal. 5 (Doc. 148, pp. 4–8, 19.) Yet the
evidence, viewed in Plaintiffs’ best light, neither supports Plaintiffs’ assignment of
intentional fraud nor presents a genuine dispute of material fact.
First, Plaintiffs say Dr. Miktarian’s statements to the Board that PMC had

As an initial matter, the Court finds PMC may invoke § 395.0191(7) immunity
over its denial of Plaintiffs’ reappointment applications because, as stated in the Second
PI Order, “the Bylaws allow issues outside the realm of clinical competence to be
considered when evaluating a staff member’s reappointment application,” such as
demonstrated professional ability and clinical judgment, professional ethics, discharge of
staff obligations, and compliance with the Bylaws. (Doc. 94, pp. 5–6.) This echoes criteria
§ 395.0191(4) lists for determining a staff member’s eligibility for privileges. Since
Plaintiffs’ claim is borne out of PMC’s evaluation of their reappointment applications, §
395.0191(7) applies.
5 In the Amended Complaint, Plaintiffs alleged Dr. Miktarian committed
intentional fraud before the MEC also (Doc. 81, ¶¶ 28–31), but neither bring this up nor
point to evidence in their Response to support this allegation (See Doc. 147, p. 19). Either
way, the Court finds the record doesn’t support this allegation.
4

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requested data from them is false and constitutes intentional fraud. (Id. at ¶ 2, p. 19.) Yet
all Plaintiffs admitted in their depositions that they had been informed and/or asked
about Health First providing PMC data for accreditation purposes before the December
Board meeting. (Doc. 143-1, pp. 45:18–25, 54:6–56:2 (Dr. Blaine provided data when asked,
knew Health First was asked many times for data); Doc. 143-2, pp. 94:16–95:25 (Dr. Bryant
had been asked for data and complied with request); Doc. 143-3, pp. 34:8–11, 35:4–39:1,
40:3–15 (Dr. Castro was contacted by Dr. Deligdish for the data, Dr. Castro then talked to
Nancy Payne); Doc. 143-4, pp. 26:14–25, 32:23–33:17, 35:4–37:11, 50:22–53:11 (Dr. Dalal
knew about data being requested as part of reaccreditation, had conversations with
Nancy Payne about providing the data); Doc. 143-7, pp. 28:17–29:3, 31:18–32:1, 40:1–42:6,
42:7–9, 43:11–24, 44:6–25, 46:6–25, 47:8–57:12 (Dr. Muwalla spoke to Dr. Deligdish and
was told about PMC requesting data for COC accreditation, Dr. Muwalla then spoke to
Nancy Payne and sent an email to Plaintiffs to not share the data, he got an email in
November from Marsha Richardson at PMC contacting Nancy, Health First decided to
involve legal); Doc. 143-9, pp. 57:10–58:13 (Dr. Prendergast had known about data from
speaking with Dr. Deligdish and Dr. Dalal, he responded to Dr. Deligdish by identifying
Nancy Payne); Doc. 143-10, p. 69:7–25 (Dr. Sprawls knew about PMC’s data requests to
Health First).) So Plaintiffs’ own testimony refutes their contention that Dr. Miktarian
“spoke falsely and with malice . . . when he advised PMC’s Board that multiple requests
for reaccreditation data were made to Physicians.” (Doc. 148, p. 19.) As such, their
assignment of intentional fraud on these grounds is baseless.
Next, Plaintiffs point to Dr. Miktarian’s statements that PMC’s accreditation was
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in jeopardy as evidence of intentional fraud because the CoC had been working with
PMC to resolve its deficiencies. (Id. at 7–8, 19.) This assertion is unsupported by the
record, which actually reveals that PMC fought tooth and nail to gain re-accreditation
and succeeded despite this missing data. PMC worked with the CoC’s surveyor to
brainstorm and create workarounds to get at this missing data from another angle, via
records it could obtain. (Doc. 143-11, pp. 40:17–41:2, 51:21–54:12, 73:10–74:17, 77:1–79:14,
81:19–84:25 (deposition of Vicki Chiapetta describing PMC’s re-accreditation process).)
And although PMC was able to resolve some deficiencies before the Board ultimately
voted to deny Plaintiffs’ reappointment applications, there were still two outstanding
deficiencies PMC didn’t resolve until two months later—one of which specifically
required information on Health First policies and procedures. (Id. at 86:8–87:13, 94:1–
99:24.) At the end of the day though, none of this changes the fact that PMC needed that
data and not being able to get it jeopardized PMC’s re-accreditation. (Id. at 134:2–135:5,
137:22–138:3, 144:23–156:25; Doc. 145-1, pp. 63:4–65:20.) Plaintiffs’ evidence shows PMC
didn’t take no for an answer and still endeavored to obtain re-accreditation. But PMC’s
success doesn’t mean the refusal to provide data didn’t undermine and obstruct this
process. Thus, Dr. Miktarian’s statements to the Board linking the missing data to PMC’s
re-accreditation does not demonstrate intentional fraud.
With that, Plaintiffs have failed to provide evidence of intentional fraud in
connection with the denial of their reappointment applications to supplant PMC’s
statutory immunity under Fla. Sta. § 395.0191(7). Accordingly, PMC is entitled to
statutory immunity for Plaintiffs’ breach of the Bylaws claims. The Motion is granted on
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these grounds.
C.

Substantive Due Process

Last are Plaintiffs’ substantive due process claims that “condition[ing] renewal of
privileges on furnishing reaccreditation data requested by PMC” was unreasonable and
arbitrary because supplying the data was not within Plaintiffs’ control and unrelated to
Plaintiffs’ individual abilities and the provision of quality patient care. (Doc. 148, p. 20.)
But when it comes to a substantive due process claim, as the Court explained previously,
the Court cannot “substitute [its] judgment for that of the hospital’s governing board or .
. . reweigh the evidence regarding the renewal or termination of medical staff privileges.”
(Doc. 94, p. 6 (quoting Shahawy, 875 F.2d at 1533).) Rather:
[T]he court is charged with the narrow responsibility of assuring that the
qualifications imposed by the Board are reasonably related to the operation
of the hospital and fairly administered. In short, so long as staff selections
are administered with fairness, geared by a rationale compatible with
hospital responsibility, and unencumbered with irrelevant considerations,
a court should not interfere.
(Id. at 6–7 (quoting Shahawy, 875 F.2d at 1533).)
Like before, PMC’s decision to deny Plaintiffs’ reappointment applications
because they failed to turn over, or cause to be turned over, the data requested for
accreditation purposes clears this bar. (See id.); see also Woodbury, 447 F.2d at 845–846.
Unlike the case Plaintiffs cite, Foster v. Mobile County Hospital Board, where the doctors’
staff privileges were conditioned on their membership in an unrelated medical society
and ability to curry favor with staff members, PMC denied Plaintiffs’ reappointment
applications after providing Plaintiffs the opportunity to rectify the situation. See 398 F.2d
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227, 229–30 (5th Cir. 1968); (Doc. 148, p. 20; Doc. 33-2, pp. 16–29 (December 5 Letter).) No
Plaintiff did. Instead, they took the issue up the chain of command at Health First, who
staunchly refused to turn over the data and decided to treat this as a “legal issue.” (Doc.
143-1, pp. 69:10–20; 70:16–72:18; Doc. 143-2, pp. 106:17–108:13; Doc. 143-4, pp. 59:11–60:24;
Doc. 143-4, pp. 49:8–50:3, 57:24–58:5; Doc. 143-7, pp. 62:5–63:15; Doc. 143-8, p. 84:16–20;
Doc. 143-9, p. 22:2–18.) Things escalated, and it became pellucid that the data wouldn’t
be turned over. (Doc. 33-2, pp. 30–99; Doc. 33-3, pp. 1–41.) So PMC denied Plaintiffs’
reappointment, finding the repeated failure to provide data abrogated the Bylaws. (Doc.
33-2, pp. 64–77.)
While not a named party in this proceeding, at bottom, this dispute revolves
around the thinly veiled effort of Health First to flex its muscle in the long running,
heavily litigated, “scorched earth” turf war for Brevard County’s healthcare business. The
plaintiff physicians here, all imminently qualified in the field of oncology, have been
employed as foot soldiers in the intractable hostilities. Whether Health First has any
concern for the reputation of their employee physicians, or the unfettered delivery of
health care services to Brevard County citizens, or simply regards this as unfortunate but
necessary collateral damage is unclear. No sacrifice is too great when it’s not yours.
Applying the Court’s “narrow” scope of review to this decision, PMC’s grounds
for denial were “reasonably related the operation of the hospital,” “fairly administered,”
“geared by a rationale compatible with hospital responsibility,” and relevant to their
pending applications. See Shahawy, 875 F.2d at 1533. In short, PMC’s decision complies
with substantive due process, and the Court cannot disturb PMC’s judgment. See id.
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Therefore, PMC’s Motion is granted for these claims.
IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows:
1.

Defendant North Brevard County Hospital District d/b/a Parrish Medical
Center’s Dispositive Motion for Summary Judgment and Incorporated
Memorandum of Law (Doc. 137) is GRANTED.

2.

The Clerk is DIRECTED to enter judgment in favor of Defendant North
Brevard County Hospital District and against Plaintiffs Germaine Blaine,
Cynthia Bryant, Juan Castro, Ashish Dalal, Firas Muwalla, Brendan
Prendergast, and Richard Sprawls on all counts of the Amended Complaint
(Doc. 81).

3.

All other pending motions are DENIED AS MOOT.

4.

The Clerk is DIRECTED to terminate any deadlines and close the file.

DONE AND ORDERED in Chambers in Orlando, Florida, on August 22, 2019.

Copies to:
Counsel of Record

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