Pacific Radiation Oncology, LLC et al v. The Queen's Medical Center et al

Filing 19

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' 1 MOTION FOR A TEMPORARY RESTRAINING ORDER. Signed by District JUDGE LESLIE E. KOBAYASHI on February 3, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants re gistered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PACIFIC RADIATION ONCOLOGY,
LLC, a Hawai`i Limited
Liability Corporation, et
al.,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
THE QUEEN’S MEDICAL CENTER, a )
Hawai`i Non-Profit
)
Corporation, et al.,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 12-00064 LEK-KSC

ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION FOR A TEMPORARY RESTRAINING ORDER
On January 27, 2012, Plaintiffs Pacific Radiation
Oncology, LLC, a Hawai`i Limited Liability Corporation, PRO
Associates, LLC, a Hawai`i Limited Liability Corporation, and
John Lederer, M.D., Individually and as a Manager of the LLCs
appearing for the Pacific Radiation Oncology Physicians
(collectively “Plaintiffs”) filed the instant Motion for
Temporary Restraining Order (“Motion”)1 with their complaint in
state court.

1

Defendants The Queen’s Medical Center, a Hawai`i

The complete title of the Motion is “Motion for Temporary
Restraining Order, or in the Alternative, for a Preliminary
Injunction”. The instant order only addresses the portion of the
Motion requesting a temporary restraining order. The Court will
rule on the portion of Plaintiffs’ Motion requesting a
preliminary injunction after the hearing scheduled for February
15, 2012.

Non-Profit Corporation, Queen’s Development Corp, a Hawai`i for
Profit Corporation, and the officers and/or trustees of Queen’s
Medical Center, in their individual and official capacities
(collectively “Defendants”), removed this action on January 31,
2012, and filed their memorandum in opposition to the Motion on
February 2, 2012.

John Doe filed a motion to intervene on

February 1, 2012, and this Court has permitted his counsel to
participate in the proceedings on the Motion pending this Court’s
decision on the motion to intervene.

The Court finds this matter

suitable for disposition without a hearing pursuant to Rule
LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).2
After careful consideration of the Motion, supporting and
opposing memoranda, the relevant legal authority, and the
representations of counsel at the status conferences, Plaintiffs’
Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the
reasons set forth below.
BACKGROUND
Plaintiff Pacific Radiation Oncology, LLC (“PRO LCC”)
has five equity members and one employee physician.

All six are

physicians licensed to practice in the State of Hawai`i, and
collectively they have over 140 years of experience in radiation

2

Although the Court did not hold a hearing on the Motion,
the Court held status conferences regarding the Motion on
January 31, 2012, February 2, 2012, and February 3, 2012.
2

and oncology.

Plaintiffs’ Verified Complaint for Declaratory and

Injunctive Relief and for Damages (“the Complaint”) states that
PRO LLC is the largest radiation oncologist group in Hawai`i, and
it employs more than half of the radiation oncologist in Hawai`i.
Until recently, PRO LLC provided services to its patients at The
Queen’s Medical Center (“Queen’s”), the Cancer Centers of Hawai`i
in Ewa Beach and Liliha, which are affiliated with, respectively,
Hawai`i Medical Center - West (“HMC-West”) and Hawai`i Medical
Center - East (“HMC-East”), and Wilcox Health on Kauai.
[Complaint at ¶ 3.]

According to the Complaint, PRO LLC “is the

only group practice in Hawai`i to offer head, neck, and GYN
interstitial brachytherapy, which is a procedure that can only be
performed in the operating room of a hospital that has received
approval from the Nuclear Regulatory Commission” (“NRC”).

[Id.]

Queen’s is the only NRC-licensed facility on Oahu with an
operating room.

When a necessary procedure does not require a

hospital, a PRO LLC physician will seek to perform the procedure
at the facility of the patient’s choice.

Facilities that compete

with Queen’s have available facilities for radiation oncology,
but Queen’s facilities are “the most recognized and frequentlyused facilities on Oahu.”

[Id.]

The instant case has arisen because in 2011, after an
approximately forty-year professional relationship with
Plaintiffs, Defendants made the decision to transition the

3

Queen’s radiation oncology department to a closed facility.

In

other words, only physicians who are employed by Queen’s would be
granted privileges for Queen’s facilities.

Defendants state that

they decided to transition to the closed-facility model because
it is more efficient and enhances the quality of and satisfaction
with patient care.
As a result, the PRO LLC physicians3 were informed by
letter on September 15, 2011 that Queen’s Board of Directors
(“the Board”) had approved a resolution, dated August 29, 2011,
that only physicians employed by Queen’s would be allowed
exercise clinical privileges to provide radiation oncology
services at Queen’s.
February 1, 2012.

The policy change was to take effect on

[Complaint at ¶ 19.]

In the period since

issuing that letter, Queen’s opened the possibility of employment
at Queen’s to the PRO LLC physicians, but these six physicians
did not accept.

Their refusal was, due in part, to their

objection to Queen’s requirement that they would have to: 1)
terminate their interest in facilities that compete with Queen’s;
and 2) stop providing services at competing facilities.
¶ 21.]

[Id. at

Plaintiffs’ attempts to negotiate with Queen’s regarding

these demands or to extend the date that the policy change was to

3

Insofar as Plaintiffs are litigating on behalf of and to
protect the interests, its five equity members and one employee,
the Court will also refer to the six PRO LLC physicians as
“Plaintiffs”.
4

take effect were unsuccessful.
On December 28, 2011, HMC-West closed, and, on
January 5, 2012, HMC-East closed, eliminating the only nonQueen’s medical group facilities where Plaintiffs could provide
radiation oncology therapies that required a hospital setting.
Plaintiffs have applied to other facilities for clinical
privileges, but none of those facilities has a NRC license.

[Id.

at ¶¶ 22-24.]
The Complaint alleges that, in deciding to terminate
Plaintiffs’ hospital privileges, the Board “did not follow any of
the constitutional, legal, or due process requirements provided
for in both the [Queen’s] Bylaws and applicable Hawai`i law to
ensure that the Plaintiffs’ substantive and procedural rights to
due process were not violated.”

[Id. at ¶ 19.]

Plaintiffs

allege that Defendants’ stated reason for adopting the closedfacility model - “‘to standardize and to achieve improved
clinical outcomes, enhance patient satisfaction, achieve better
quality and continuity of care’” - is a pretext, and the real
reason behind the policy change is to deny patients the
opportunity to be treated at non-Queen’s facilities and to
prevent Plaintiffs from providing services which compete with
Queen’s.

[Id. at ¶¶ 25-26.]

Plaintiffs also argue that, in

enacting the resolution, Defendants acted “arbitrarily,
capriciously, dishonestly, and maliciously with the specific and

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deliberate intent of harming Plaintiffs and destroying
Plaintiffs’ ability to treat patients at facilities competing
with [Queen’s].”

[Id. at ¶ 27.]

Further, Plaintiffs allege that

Defendants acted “intentionally, knowingly, grossly negligently
and in conscious and in wanton disregard to rights of the
Plaintiffs warranting an award of exemplary and punitive
damages.”

[Id. at ¶ 29.]
The Complaint alleges the following claims: denial of

procedural and substantive due process, as guaranteed by Article
I of the Hawai`i Constitution and the First and Fourteenth
Amendments of the United States Constitution (“Count I”);
violations of Queen’s bylaws and governing regulations (“Count
II”); intentional and tortious interference with Plaintiffs’
contractual obligations to facilities which compete with Queen’s
(“Count III”); intentional and tortious interference with
prospective business advantage (“Count IV”); intentional and
tortious interference with Plaintiffs’ professional and
contractual relationship with their patients (“Count V”); unfair,
deceptive, anti-competitive and illegal trade practices in
violation of Haw. Rev. Stat. Chapter 480 based on the termination
of Plaintiffs’ privileges (“Count VI”); unfair, deceptive, anticompetitive and illegal trade practices in violation of Chapter
480 based on violations of the Federal Anti-Kickback statute, 42
U.S.C. § 1320a-7b (“Count VII”); unfair, deceptive, anti-

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competitive and illegal trade practices in violation of Chapter
480 based on attempted economic credentialing (“Count VIII”);
unfair, deceptive, anti-competitive and illegal trade practices
in violation of Chapter 480 based on the breach of Queen’s
corporate integrity agreement with the Office of Inspector
General of the Department of Health and Human Services (“Count
IX”); and a claim for breach of fiduciary duty and bad faith
(“Count X”).
Plaintiffs seek the following relief: temporary,
preliminary, and permanent injunctions enjoining Queen’s from
terminating Plaintiffs’ hospital privileges; special, general,
and punitive damages under Hawai`i law for the damages caused by
Defendants’ actions alleged in the Complaint; treble damages
under Chapter 480, if greater than the amount of punitive damages
Plaintiffs are entitled to; attorneys’ fees, interest, and
prejudgment interest; restitution, disgorgement of profits, or
other equitable relief warranted because of Defendants’ breach of
their fiduciary duties; and any other appropriate relief.
In the instant Motion, Plaintiffs argue that this case
meets all of the requirements for a temporary restraining order.4
Plaintiffs argue that they did not receive notice of the reasons

4

The Court notes that, insofar as Plaintiffs anticipated
litigating the Motion in state court, Plaintiffs relied on the
temporary restraining order requirements articulated in state
court decisions. The Court has construed their arguments
liberally to address the requirements under federal case law.
7

for terminating their privileges, nor any hearing and thus did
not have any opportunity to challenge the decision.

In addition,

Defendants’ actions violate both Queen’s published bylaws and
other anti-competitive statutes.

Plaintiffs therefore contend

that they are likely to succeed on the merits of their claims.
Plaintiffs also argue that their patients will suffer irreparable
harm unless the Court grants a temporary restraining order
because Plaintiffs will not be able to provide them with
necessary radiation oncology therapy at Queen’s.

Plaintiffs also

argue that Defendants will not suffer any prejudice if the Court
issues a temporary restraining order, and that the public
interest clearly favors issuing a temporary restraining order.
In their memorandum in opposition, Defendants state
that there is no basis for a temporary restraining order because
Defendants have merely made a rational business decision which
they believe will improve the quality and efficiency of medical
care.

Defendants contend that the instant case does not satisfy

any of the requirements for a temporary restraining order.
Defendants emphasize that their decision to restrict the exercise
of clinical privileges is not based on concerns about Plaintiffs’
qualifications; Defendants assert that what Plaintiffs are
challenging is a merely a policy decision, of which Defendants
gave Plaintiffs prompt notice.

Defendants argue that, in

deciding to move to a closed-facility model, they made a sound

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decision in accord with their broad discretionary powers under
Hawai`i statutes and case law, and in compliance with Queen’s
bylaws.

Defendants submit that Plaintiffs have not shown a

likelihood of success on the merits of their due process claim
because there was no decision to terminate or revoke Plaintiffs’
privileges based on issues of competency or qualifications.
Further, Defendants argue that Plaintiffs are not likely to
prevail on their Chapter 480 claims based on allegedly deceptive
practices because Plaintiffs are not consumers within the meaning
of Haw. Rev. Stat. §§ 480-1 and 480-2(d), and Plaintiffs are not
likely to prevail on their unfair competition claim because the
Complaint does not sufficiently allege an injury to competition.
As to the Chapter 480 claim based on alleged violations of the
federal anti-kickback statute, Defendants contend that Plaintiffs
are not likely to succeed on the merits because the statute does
not allow for a private right of action and the statue is
inapplicable to the facts of this case.

Defendants also point

out that, when Plaintiffs applied for appointment and
reappointment to Queen’s medical staff, they agreed to extend
absolute immunity to Queen’s and its Board for any actions
relating to hospital privileges.

Defendants contend that filing

the Complaint violated that agreement, and that the case should
be dismissed.

In other words, Plaintiffs are not likely to

succeed on the merits of any of their claims.

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As to the other factors, Defendants assert that no
irreparable harm would result if the Court denies the temporary
restraining order.

Plaintiffs have an adequate legal remedy for

their damages from their inability to exercise privileges at
Queen’s.

Defendants also argue that there would be no

irreparable harm to Plaintiffs’ patients because of the
exceptions that Defendants have extended to the new closedfacility policy, including an exception for the proposed
intervenor-plaintiff John Doe.

Defendants emphasize that the

Queen’s radiation ontologists are qualified and privileged to
conduct all necessary procedures, including seed implantation for
prostate cancer.

Defendants contend that a temporary restraining

order would not be in the public interest because a closed
facility will improve the quality of care and, if forced to
extend Plaintiffs’ privileges, Defendants’ efforts to improve
care will be thwarted.

Finally, Defendants submit that the

balancing of the equities weighs against a temporary restraining
order because Defendants will be injured if they cannot implement
their policy, and Plaintiffs have not proven that they will
suffer any injury if the temporary restraining order is denied.
Defendants therefore urge the Court to deny Plaintiffs’
request for a temporary restraining order.
JURISDICTION
At the outset, this Court must address whether it has

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jurisdiction over the instant case.

Defendants removed this

action pursuant to 28 U.S.C. §§ 1331, 1441 and 1446, alleging
federal question jurisdiction.

Defendants argue that there is

federal question jurisdiction because: 1) Count I alleges that
Defendants violated Plaintiffs’ right to due process, as
guaranteed by the First and Fourteenth Amendments to the United
States Constitution; and 2) Count VII raises a substantial
federal question that requires the Court to resolve issues under
federal Medicare statutes.
Section 1331 states: “The district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”

Whether a

claim “arises under” federal law for purposes of removal is
determined by the well-pleaded complaint rule.
Bank of Louisiana, 522 U.S. 470, 475 (1998).

Rivet v. Regions
A case “arises

under” federal law when federal law creates the cause of action
or the plaintiff’ right to relief depends on resolution of a
substantial question of federal law.

Franchise Tax Bd. v.

Constr. Laborers Vacation Tr., 463 U.S. 1, 27–28 (1983).
At the status conference on February 2, 2012,
Plaintiffs’ counsel represented that the Complaint does not rely
on any federal law to create the causes of action asserted.

The

Court notes that, although Count I expressly alleges a violation
of federal constitutional rights, it is not clear whether that

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claim has merit.

The Hawai`i Supreme Court has recognized that a

licensed doctor who is denied staff hospital privileges is
entitled to judicial review on the issue “whether the doctor
excluded was afforded procedural due process, and as to whether
an abuse of discretion by the hospital board occurred, resulting
in an arbitrary, capricious or unreasonable exclusion.”

Silver

v. Castle Mem’l Hosp., 53 Haw. 475, 479-80, 497 P.2d 564, 568
(1972).

Silver also discussed the distinction between public,

private, and quasi-public hospitals.
569-70.

Id. at 481-83, 497 P.2d at

The Hawai`i Supreme Court limited Silver’s holding to

“to those situations where the hospitals involved have had more
than nominal governmental involvement in the form of funding” and
did not address “whether the decision of the board of a truly
private hospital not to grant staff privileges is subject to
judicial review.”

Id. at 570, 497 at 483.

Moreover, Silver did

not rely on federal law, and therefore Silver does not
necessarily stand for the proposition that the denial of
privileges at a private hospital, either without due process or
based on arbitrary, capricious, or unreasonable grounds, violates
the United States Constitution.

Even if Silver would support a

due process claim for the denial of privileges at a quasi-public
hospital, this Court cannot find on the present record that
Queen’s is a quasi-public hospital.

At this stage of the case,

the Court cannot conclude that federal jurisdiction exists based

12

on Count I.
Defendants, however, also argue that Count VII raises a
substantial question of federal law because it alleges that
Defendants violated 42 U.S.C. § 1320a-7b5 and that the violation
constitutes an actionable claim under Haw. Rev. Stat. Chapter
480.

Based on a preliminary review for purposes of the instant

Motion, the Court agrees that Count VII raises a substantial
question of federal law.

This Court therefore CONCLUDES that it

has federal question jurisdiction over Count VII and supplemental
jurisdiction over the remaining claims in the Complaint pursuant
to 28 U.S.C. § 1367.

The Court, however, emphasizes that its

findings and conclusions regarding jurisdiction are based on a
preliminary review of the instant case for purposes of the
instant Motion only and do not preclude Plaintiffs from filing a
timely motion for remand.
The Court now turns to the merits of Plaintiffs’
request for a temporary restraining order.
DISCUSSION
“The standard for issuing a temporary restraining order
is identical to the standard for issuing a preliminary
injunction.”

Brown Jordan Int’l, Inc. v. Mind’s Eye Interiors,

Inc., 236 F. Supp. 2d 1152, 1154 (D. Haw. 2002).

5

In Winter v.

Section 1320a-7b sets forth criminal penalties for acts
involving Federal health care programs.
13

Natural Resources Defense Council, Inc., the United States
Supreme Court explained that “[a] plaintiff seeking a preliminary
injunction must establish that he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public interest.”
555 U.S. 7, 20 (2008) (citations omitted).

The Ninth Circuit has

held that its serious questions test, under which a district
could issue a preliminary injunction “where the likelihood of
success is such that serious questions going to the merits were
raised and the balance of hardships tips sharply in [plaintiff’s]
favor[,]” survives Winter as long as courts applying the test
incorporate it into the four-part Winter analysis.

Alliance for

the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)
(citation and quotation marks omitted) (some alterations in
original).

“In other words, ‘serious questions going to the

merits’ and a hardship balance that tips sharply toward the
plaintiff can support issuance of an injunction, assuming the
other two elements of the Winter test are also met.”

Id. at

1132.
The Court will begin its analysis with the factors
that, in this Court’s view, are not in serious dispute.
I.

Irreparable Harm
Plaintiffs’ patients have cancer, and it is highly

14

likely they will suffer irreparable harm if denied, or even
delayed receiving, necessary medical treatments.6

The parties do

not dispute that there are certain radiation oncology procedures
that, at the present time, can only be provided at Queen’s.
Further, there are other procedures that are possible to perform
at other facilities, but arguably should be performed (for
medical reasons determined by the patients’ physicians) at
Queen’s.

Finally, and not the least consideration, the trust and

confidence that a patient places in a particular physician while
undergoing treatment for a serious condition is an intangible and
critical component of that treatment, and it is neither fungible
nor easily transferred.

That is to say, substituting one

competent oncology radiologist for another is neither as simple
nor as palatable as Defendants seem to suggest.

Defendants have

represented that Queen’s primary concern is for patient care and
that it is committed to ensuring that such care will not be
compromised during their operational transition to a closed
facility.

The parties have diligently tried to reach an

agreement to protect Plaintiffs’ patients and their ability to

6

The Court notes that the likely harm that Plaintiffs (in
contrast to their patients) face from not being able to provide
treatment at Queen’s is monetary in nature. Typically, monetary
harm does not constitute irreparable harm. Los Angeles Mem’l
Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1202
(9th Cir. 1980). This is so because “economic damages are not
traditionally considered irreparable because the injury can later
be remedied by a damage award.” Cal. Pharmacists Ass’n v.
Maxwell–Jolly, 563 F.3d 847, 852 (9th Cir. 2009).
15

receive necessary treatment in a timely manner during Queen’s
transition.

Regrettably, the parties have not reached such an

agreement.
Defendants argue that, because of the voluntary
accommodations they have proposed for continuing treatment during
the transition to a closed facility, patient care will not be
compromised, and thus Plaintiffs have failed to prove a likely
threat of irreparable harm.

Without an agreed-upon plan for the

treatment of Plaintiffs’ patients, however, the Court is not
persuaded.

The Court therefore FINDS that, in the absence of a

temporary restraining order, Plaintiffs’ patients are likely to
suffer irreparable harm.

The Court further FINDS that, in the

instant case where the threat of harm is potentially a matter of
life and death, or at least the measurable worsening of serious
medical conditions for at least some patients, the irreparable
harm factor weighs strongly in favor of granting a temporary
restraining order.
II.

Balance of the Equities
In the context of a motion for preliminary injunction,

a court weighing the balance of the equities “must identify the
possible harm caused by the preliminary injunction against the
possibility of the harm caused by not issuing it.”

Univ. of

Hawai`i Prof’l Assembly v. Cayetano, 183 F.3d 1096, 1108 (9th
Cir. 1999).

As previously stated, the standard for a motion for

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a temporary restraining order is the same as for a motion for a
preliminary injunction.
Defendants have stated that they adopted the closedfacility policy to improve the quality and efficiency of patient
care.

At this stage of the case, this Court will accept this

explanation.

Defendants certainly have an interest in operating

Queen’s in the manner they reasonably believe is best suited for
patients.

Defendants, however, will suffer little harm if the

implementation of their closed-facility policy is delayed by a
temporary restraining order until the Court issues its decision
after the February 15, 2012 hearing.

This Court therefore FINDS

that the balance of the equities factor weighs in favor of
granting the temporary restraining order.
III. Public Interest
In the preliminary injunction context, this Court has
recognized the following principles relevant to the public
interest inquiry:
The plaintiffs bear the initial burden
of showing that the injunction is in the
public interest. See Winter [v. Natural
Resources Defense Council, Inc.], [555 U.S.
7,] 129 S. Ct. [365,] 378 [(2008)]. However,
the district court need not consider public
consequences that are “highly speculative.”
In other words, the court should weigh the
public interest in light of the likely
consequences of the injunction. Such
consequences must not be too remote,
insubstantial, or speculative and must be
supported by evidence.
Finally, the district court should give
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due weight to the serious consideration of
the public interest in this case that has
already been undertaken by the responsible
state officials . . . who unanimously passed
the rules that are the subject of this
appeal. See Golden Gate Rest. Ass’n [v. City
and County of San Francisco], 512 F.3d [1112]
at 1127 [(9th Cir. 2008)] (“The public
interest may be declared in the form of a
statute.” (internal quotation marks
omitted)); see also Burford v. Sun Oil Co.,
319 U.S. 315, 318, 63 S. Ct. 1098, 87 L. Ed.
1424 (1943) (“[I]t is in the public interest
that federal courts of equity should exercise
their discretionary power with proper regard
for the rightful independence of state
governments in carrying out their domestic
policy.” (internal quotation marks omitted)).
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139–40
(9th Cir. 2009) (some citations and quotation
marks omitted). The public interest inquiry
primarily addresses the impact on non-parties
rather than parties.
Am. Promotional Events, Inc.--Nw. v. City & Cnty. of Honolulu,
796 F. Supp. 2d 1261, 1284-85 (D. Hawai`i 2011) (alterations in
Am. Promotional Events).

As previously stated, the standard for

a motion for a temporary restraining order is the same as for a
motion for a preliminary injunction.

For the reasons stated in

the discussion of the irreparable harm factor and balancing of
the equities factor, this Court FINDS that the public interest
factor also weighs in favor of granting the temporary restraining
order.
IV.

Likelihood of Success on the Merits
Although other claims have been addressed in the

litigation of the instant Motion, the parties’ focus in the

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likelihood of success inquiry appears to be on Plaintiffs’ due
process claim.

As noted in the section discussing jurisdiction,

the Court has reservations about whether Silver applies to
Queen’s in the first instance.

Further, even if Silver applies

to Queen’s in general, there is still the question whether Silver
applies beyond a privileging decision regarding an individual
physician’s competency or qualifications to a hospital’s policy
decision that affects a group of physicians without regard to
competency or qualification issues.

The Court also notes that

Silver states: “If the exclusion of a person from its medical or
surgical staff is based on the sound and reasonable exercise of
discretionary judgment, courts will not intervene, but if the
exclusion stems from unreasonable, arbitrary, capricious or
discriminatory considerations, equitable relief is available.”
53 Haw. at 480, 497 P.2d at 568 (citation and quotation marks
omitted).

Defendants have made strong arguments that their

decision to adopt a closed-facility model was made for
legitimate, and not improper, reasons.
For the foregoing reasons, this Court FINDS that there
are serious questions on the merits of Plaintiffs’ due process
claim.
V.

Summary of Factors
The Court FINDS that Plaintiffs’ likelihood of success

on their due process claim is such that there are serious

19

questions as to the merits of this claim, and the balance of
hardships tips sharply in Plaintiffs’ favor.

The Court

emphasizes that it has considered the serious questions test in
the context of the Winter analysis, and the Court has found that
the public interest, threat of irreparable harm, and balance of
the equities all weigh strongly in favor of a temporary
restraining order.

This Court therefore CONCLUDES, on balance,

Plaintiffs have established that they are entitled to a temporary
restraining order.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Motion for
Temporary Restraining Order, filed on January 27, 2012, is HEREBY
GRANTED IN PART AND DENIED IN PART.

The Court GRANTS Plaintiffs’

request for a temporary restraining order to the extent that the
Court ORDERS Defendants to allow Plaintiffs to perform the
following procedures on Plaintiffs’ patients at the Queen’s
facilities, including any in-patient treatment, hospitalization,
chart or record review, surgery, follow-up care and/or
scheduling:
a.
b.
c.
d.
e.
f.
g.

Volume Studies for permanent seed implants of the
prostate;
Permanent seed implants;
High dose rate brachytherapy implants of the prostate
and substitute tumors;
Endoluminal trachea, bile duct, (brachytherapy)
radiation therapy;
Tomotherapy;
4DCT;
Stereotactic body radiotherapy; and
20

h.

Patients that need general anesthesia for external
radiation including pediatric external beam radiation.

The Court DENIES the request for a temporary restraining order in
all other respects.

This temporary restraining order shall

remain in effect until this Court issues its ruling on
Plaintiffs’ request for a preliminary injunction.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 3, 2012.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

PACIFIC RADIATION ONCOLOGY, LLC, ET AL. V. THE QUEEN’S MEDICAL
CENTER, ET AL; CIVIL NO. 12-00064 LEK-KSC; ORDER GRANTING IN PART
AND DENYING IN PART PLAINTIFF’S MOTION FOR A TEMPORARY
RESTRAINING ORDER

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