Pacific Radiation Oncology, LLC et al v. The Queen's Medical Center et al
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION 1 . Signed by JUDGE LESLIE E. KOBAYASHI on 3/20/2012. (afc)CERTIFICATE OF SERVICEParticipants registered to receive elec tronic 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
THE QUEEN’S MEDICAL CENTER, a )
Corporation, et al.,
CIVIL NO. 12-00064 LEK-KSC
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
On January 27, 2012, Plaintiffs Pacific Radiation
Oncology, LLC, a Hawai`i Limited Liability Corporation (“PRO”),
PRO Associates, LLC, a Hawai`i Limited Liability Corporation
(“PROA”, together with PRO “the LLCs”), and John Lederer, M.D.,
Individually and as a Manager of the LLCs appearing for the
Pacific Radiation Oncology Physicians (collectively
“Plaintiffs”)1 filed their Motion for a Temporary Restraining
The Court notes that Plaintiffs filed an amended complaint
on February 23, 2012, naming the following parties as plaintiffs:
PRO; PROA; John Lederer, M.D., individually; Vincent Brown, M.D.,
individually; Paul DeMare, M.D., individually; Thanh Huynh, M.D.,
individually; Laeton Pang, M.D., individually; and Eva Bieniek,
M.D., individually. [Dkt. no. 44.] Drs. Brown, DeMare, Huynh,
Pang, and Bieniek have neither moved for a preliminary injunction
nor sought leave to join in the instant Motion. The term
“Plaintiffs” in this Order therefore refers only to the existing
Order, or in the Alternative, for a Preliminary Injunction
(“Motion”)2 with their complaint in state court.
[Dkt. nos. 1-1
(complaint), 1-3 to 1-19 (Motion and all supporting materials).]
Defendants The Queen’s Medical Center, a Hawai`i 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.
[Dkt. nos. 1, 14.]
Plaintiffs filed their reply on February 8,
[Dkt. no. 30.]
Also on February 8, 2012, Defendants filed
their Submission of Affidavits for Direct Examination
(“Defendants’ Direct Evidence”).
[Dkt. no. 29.]
filed a Compendium of Plaintiffs’ Evidence (“Plaintiffs’ Direct
Evidence”) on February 9, 2012.
[Dkt. no. 31.]
On February 13,
2012, Defendants filed their Submission of Supplemental
Affidavits for Direct Examination (“Defendants’ Supplemental
plaintiffs at the time the Motion was filed. The Court
emphasizes that it makes no findings and expresses no opinions
about Drs. Brown, DeMare, Huynh, Pang, and Bieniek’s entitlement
to a preliminary injunction.
This Court has already ruled on the portion of the Motion
seeking a temporary restraining order. See Order Granting in
Part and Denying in Part Plaintiffs’ Motion for a Temporary
Restraining Order (“TRO Order”), 2012 WL 381209 (D. Hawai`i Feb.
3, 2012). Only the portion of the Motion seeking a preliminary
injunction is currently before this Court.
Evidence”), and Plaintiffs filed their Second Submission of
Affidavits (“Plaintiffs’ Supplemental Evidence”).
[Dkt. nos. 36,
Defendants also filed a Notice of Supplemental Authority on
February 10, 2012, and a Request for Judicial Notice (“RJN”) on
February 14, 2012.
[Dkt. nos. 35, 39.]
This matter came on for hearing on February 14, 2012.
Appearing on behalf of Plaintiffs were Mark Davis, Esq.,
Loretta Sheehan, Esq., and Clare Connors, Esq.
Dr. Lederer was
Appearing on behalf of Defendants were
Paul Alston, Esq., Claire Wong Black, Esq., and
Daniel Mulholland, III, Esq.3
As ordered in this Court’s
February 22, 2012 preliminary ruling, Plaintiffs filed a
supplemental memorandum on March 5, 2012, and Defendants filed
their supplemental memorandum on March 9, 2012.
On March 12,
2012, this Court held a status conference to discuss the issues
addressed in the supplemental memoranda.
consideration of the Motion, supporting and opposing memoranda,
the evidence presented by both parties, and the arguments of
counsel, Plaintiffs’ Motion is HEREBY GRANTED IN PART AND DENIED
IN PART for the reasons set forth below.
On February 17, 2012, Defendants filed a motion seeking
leave to submit supplemental authorities, but this Court denied
the motion in an entering order issued on February 24, 2012.
[Dkt. nos. 41, 46.]
The factual and procedural background of this case, as
well as the parties’ arguments in the Motion and Memorandum in
Opposition, are set forth in this Court’s TRO Order.
381209, at *1-4.
This Court granted Plaintiffs’ request for a
TRO to the extent that the Court ordered
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:
Id. at *8-9.4
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;
Stereotactic body radiotherapy; and
Patients that need general anesthesia
for external radiation including
pediatric external beam radiation.
The TRO Order provided that the temporary
restraining order would remain in effect until this Court issued
its ruling on Plaintiffs’ request for a preliminary injunction.5
The Court will refer to the eight procedures encompassed
in the TRO Order as the “Listed Procedures”.
On February 22, 2012, this Court issued its Preliminary
Ruling on Plaintiffs’ Motion for Preliminary Injunction
(“Preliminary Ruling”). [Dkt. no. 43.] The Preliminary Ruling
clarified that the TRO Order remained in effect until the Court
issued its final written order ruling on the instant Motion.
The following is a summary of the relevant portions of
the parties’ submissions filed after the Court issued the TRO
Plaintiffs emphasize that the scope of the preliminary
injunction that they seek is very limited.
They seek an order
requiring Defendants to allow Plaintiffs to perform the Listed
Procedures at The Queen’s Medical Center (“Queen’s” or “QMC”),
but only until Plaintiffs complete their efforts to move their
practice out of Queen’s facilities.
Plaintiffs have already
begun the process of securing the necessary equipment and
clinical privileges at alternate facilities, and Plaintiffs
estimate they will be able to perform some of the Listed
Procedures at another facility within four months, but the
remaining procedures may take as long as ten months.
(citing Decl. of John Lederer, M.D. at ¶ 32).]
[Reply at 1
however, state that it is not possible for Plaintiffs to give a
definite time frame when the services will be available at the
Plaintiffs emphasize that, until the
services can be safely performed elsewhere, Queen’s is the only
facility where the Listed Procedures can be performed.
the procedures are a matter of life and death for Plaintiffs’
[Id. at 4.]
Plaintiffs argue that the issue before the Court is not
whether Defendants had a right to move Queen’s radiation oncology
department to a closed-department model.
challenge the manner in which Defendants made that decision and
how Defendants implemented that decision.
that they have established a likelihood of success on the merits
of their claims that Defendants’ actions in adopting and
implementing the closed-department model violated Plaintiffs’ due
process rights and constituted various violations of Haw. Rev.
Stat. Chapter 480.
Plaintiffs argue that, without a preliminary injunction
allowing Plaintiffs to use Queen’s facilities to perform the
Listed Procedures on their patients, irreparable harm will
Plaintiffs also argue that the public interest weighs in
favor of a preliminary injunction because the Listed Procedures
can only be performed at Queen’s and because there are certain
therapies which only the PRO physicians are qualified to perform.
Thus, without a preliminary injunction, any patient requiring one
of those therapies will not be able to receive that treatment
from a qualified physician in Hawai`i.
Plaintiffs argue that
Defendants will not suffer any harm if the Court enters a
preliminary injunction because Queen’s will be paid in full for
all of Queen’s charges associated with procedures that Plaintiffs
perform at Queen’s facilities.
Plaintiffs therefore urge the Court to grant a
preliminary injunction allowing Plaintiffs to perform the Listed
Procedures at Queen’s until those procedures are available at
Defendants’ Direct Evidence
Defendants submitted Affidavits for Direct Examination
from the following witnesses: 1) Darlena Chadwick; 2)
Peter Bryant Greenwood, M.D.; 3) Emily Hirata; 4) Scott Moon,
M.D.; 5) Randy Talavera; and 6) Arthur Ushijima.
[Dkt. nos. 29-1
to 29-5, 29-8.]
Ms. Chadwick is the Vice President of Patient Care for
Oncology, Women’s Health, Neuroscience, Pathology and
Professional Services at Queen’s.
She, inter alia, oversees
Queen’s patient care programs, policies, and procedures.
Direct Evid., Attch. A (Aff. for Direct Exam. of Darlena Chadwick
(“Chadwick Aff.”)), at ¶¶ 1-2.]
Ms. Chadwick testified that, in
recent years, Queen’s received numerous complaints from patients
that PRO physicians were transferring patients they initially saw
at Queen’s to PRO affiliated facilities for no apparent medical
reason and without an affirmative request from the patient.
These patients reported that they were dissatisfied with certain
aspects of the post-transfer services.
In addition, Queen’s
received complaints from referring physicians who were not
notified when the PRO physicians transferred patients.
Ms. Chadwick asserts that this jeopardized the continuity of
[Id. at ¶¶ 12-13.]
At least in part due to these complaints, Queen’s
convened the task force which ultimately recommended that Queen’s
transition to a closed-department model for its radiation
In the process, the task force identified
several concerns raised by the practice of transferring Queen’s
patients for no medical reason.
[Id. at ¶¶ 14-15, 19.]
concerns included: “QMC patients that are transferred to PRO
facilities no longer receive the benefit of QMC’s stringent
quality control measures and safety precautions[;]” [id. at ¶
17;] the practice “caused confusion and discord on the part of
both patients and referring physicians[,] disrupting the
continuity of care”; [id. at ¶ 18;] and Queen’s ancillary
services are not available to patients who have been transferred
to PRO affiliated facilities [id. at ¶ 19].
Based on the task
force’s findings and recommendations, the Queen’s Board of
Directors adopted a resolution providing that the radiation
oncology department would be a closed department.
[Id. at ¶ 22.]
Peter Bryant-Greenwood, M.D., is a physician who has
been the Chairman of Queen’s Credentialing Committee for
physicians since January 2011.
[Def.’s Direct Evid., Attch. B
(Aff. for Direct Exam. of Peter Bryant-Greenwood, M.D.
(“Greenwood Aff.”)), at ¶¶ 1-2.]
He was part of the Queen’s task
force and, through the task force investigation, he learned that
PRO physicians had been consulting with some patients at Queen’s
initially but then transferring the patients to a PRO affiliated
facility for treatment.
Dr. Greenwood states that he was greatly
concerned about this practice because some of these patients
would return for other treatment at Queen’s after treatments at
the PRO affiliated facility, but Queen’s would not always receive
the pertinent medical records from the PRO facilities.
could detrimentally affect the patients’ subsequent treatment at
[Id. at ¶¶ 3-4.]
Dr. Greenwood also points out that
PRO physicians refused to participate in the PAAROT program that
Queen’s implemented for its radiation oncologists.6
program “requires input of data concerning patients and treatment
in order to effectively measure and understand outcomes . . . for
improvement of care and treatment on an ongoing basis of breast
[Id. at ¶ 6.]
In addition, Dr. Greenwood
states that some of the PRO physicians rarely attend Queen’s
PAAROT stands for Performance Assessment for the
Advancement of Radiation Oncology Treatment. It is “a national
program cited by the American College of Surgeons as being
mandatory for radiation oncologists involved in breast cancer
care at centers accredited by them, such as” Queen’s. [Def.’s
Direct Evid., Attch. D (Aff. for Direct Exam. of Scott Moon, M.D.
(“Moon Aff.”)), at ¶ 8.]
daily multi-disciplinary team meetings.7
[Id. at ¶ 7.]
Emily Hirata is the Chief Medical Physicist of the
Radiation Therapy Department at Queen’s Cancer Center.
board certified in Therapeutic Radiologic Physics by the American
Board of Radiology.
[Def.’s Direct Evid., Attch. C (Aff. for
Direct Exam. of Emily Hirata (“Hirata Aff.”)), at ¶¶ 1-2.]
states that, after a physician approves a patient’s treatment
plan, she or another physicist reviews the plan to ensure that it
is correct, and the Queen’s physicists can also take measurements
from the machines to verify that the output matches the plan.
[Id. at ¶ 4.]
Scott Moon, M.D., is the Medical Director of the
Queen’s Radiation Therapy Department.
[Moon Aff. at ¶ 1.]
Dr. Moon was a radiation oncologist with PRO and PROA from
approximately July 2003 to June 2008.
[Id. at ¶ 3.]
that, during his employment with PRO, the PRO physicians
discussed ways to divert Queen’s patients to PRO affiliated
facilities to increase PRO’s revenue from insurance
reimbursements, but there was no discussion about telling the
patients that they were being transferred to a facility that was
A multi-disciplinary team meeting will “generally include
physicians from various specialties such as surgery, oncology,
pathology and radiation therapy to discuss and create the best
treatment plan for a particular patient to ensure that all
treaters agree on the course of treatment on an ongoing basis.”
[Greenwood Aff. at ¶ 7.]
partially owned by PRO.
He also states that he heard a PRO
physician give a patient false information that Queen’s would not
pay for transportation to its facility, but that PRO would do so.
Dr. Moon also states that when patients received some of their
treatments at a PRO affiliated facility and other treatments at
Queen’s, the practice at PRO facilities was to only give patient
records to Queen’s upon request.
[Id. at ¶ 6.]
Dr. Moon states
that Queen’s “radiation oncologists are accredited and qualified
to perform head, neck, and gynecological interstitial
brachytherapy, and high dose radiation brachytherapy and seed
brachytherapy for prostate cancer.”
[Id. at ¶ 11.]
Randy Talavera is the Manager of Radiation Therapy and
Medical Physics at Queen’s Radiation Therapy Department.
department’s manager, he is responsible for its daily operations.
[Def.’s Direct Evid., Attch. E (Aff. for Direct Exam. of Randy
Talavera (“Talavera Aff.”)), at ¶¶ 1-2.]
He also discussed
patient complaints about being transferred to PRO affiliated
facilities after receiving an initial consultation at Queen’s.
[Id. at ¶¶ 4-6.]
Mr. Talavera presented data about the
treatments received by and insurance coverage for Queen’s
radiation oncology patients who were transferred to PRO
[Id. at ¶¶ 9-10, Exhs. A & B.]
Arthur A. Ushijima is the President and Chief Executive
Officer (“CEO”) of Queen’s.
[Def.’s Direct Evid., Attch. F (Aff.
for Direct Exam. of Arthur A. Ushijima (“Ushijima Aff.”)), at ¶
He also states that the Queen’s task force noted the
transfer of Queen’s patients to non-Queen’s facilities and found
that the practice raised concerns about quality and continuity of
The task force concluded that the closed-
department model “would effectively address concerns regarding
quality, patient safety and continuity of care.”
[Id. at ¶ 13.]
He also states that the closed-department policy that Queen’s
ultimately adopted has one exception:
in the interests of patient care, radiation
oncologists not employed by QMC on and after
February 1, 2012, but who have patients who began
their radiation therapy treatments at QMC prior to
February 1, will be permitted to continue treating
those patients at QMC until radiation therapy
treatments and follow up appointments are
[Id. at ¶ 17.]
Defendants also presented an affidavit from Barry
Bittman, M.D., the Chief Innovations Officer of Meadville Medical
Center in Pennsylvania, and an affidavit from Richard O. Schmidt,
Jr., J.D., LL.M., the President, CEO and General Counsel of
United Hospital System in Wisconsin.
Both affidavits discuss the
benefits of a closed-department model.
[Def.’s Direct Evid.,
Attch. G (Aff. of Barry Bittman, M.D.), Attch. H (Aff. of Richard
O. Schmidt, Jr., J.D., LL.M.).]
III. Plaintiffs’ Direct Evidence
Plaintiffs submitted affidavits or declarations from
the following persons in lieu of direct examination: 1)
Dr. Lederer; 2) Cancer Patient 1; 3) Eva Bieniek, M.D.; 4) Cancer
Patient B.J.; and 5) Cancer Patient D.S.
[Dkt. nos. 31-1 to 31-
Plaintiffs submitted an affidavit by Dr. Lederer dated
January 27, 2012 (“Lederer Affidavit”) and a declaration by
Dr. Lederer dated February 8, 2012 (“Lederer Declaration”).8
Dr. Lederer states that PRO employs six of the eleven civilian
radiologists who practice on Oahu and, as of February 1, 2012,
Queen’s employed all of the civilian radiologists who were not
employed by PRO.
According to Dr. Lederer,
QMC offered to hire all PRO physicians, but only
on the condition that we bring all of our patients
to QMC and that we divest all of our interests in
all of QMC’s competitions (sic). Had the plan
worked, QMC would be the employer of all the
civilian radiation oncologists in the state and
there would be no competition.
[Lederer Aff. at ¶ 6, Exh. G (letter dated 11/18/11 to PRO
Physician Group from Darlena Chadwick explaining standard
conditions imposed on physicians employed by Queen’s).]
states that, in addition to the therapies which the PRO
physicians perform at PRO affiliated facilities, they perform
other therapies which require either a hospital operating room or
patient admission, and these therapies must be performed at a
Plaintiffs originally submitted the Lederer Affidavit with
the Motion, [dkt. no. 1-3, at 26-34,] and Plaintiffs originally
submitted the Lederer Declaration with the Reply [dkt. no. 30-1].
facility which is licensed by the Nuclear Regulatory Commission
With the closure of Hawaii Medical Center - East (“HMC
East”) and Hawaii Medical Center - West (“HMC West”), Queen’s
became the only NRC-licensed facility with an operating room that
the PRO physicians had privileges to use for these treatments.
[Lederer Aff. at ¶ 9.]
Thus, once Queen’s closed-department
policy takes full effect, the PRO physicians will not be able to
perform those procedures.
Queen’s also informed PRO that PRO
physicians will not be allowed to attend to PRO patients who
receive treatment at Queen’s during the patients’ post-operative
[Id. at ¶ 16.]
He asserts that Queen’s has improperly
“attempt[ed] to exclude [PRO] from continuing its practice” and
that Queen’s actions “will have important and severely adverse
impacts on our physician-patient relationships and on our
patients, all of whom are cancer patients in desperate need of
[Id. at ¶ 17.]
Dr. Lederer states that, under the terms of the TRO
Order, PRO has “had to refuse referrals from treating physicians
who have inpatients at QMC and yet want PRO services.”
Decl. at ¶ 4.]
The Lederer Declaration also describes a typical
course of treatment for patients in need of radiation therapy,
from referral to seed implantation, and a typical course for
higher risk treatment, from referral to high dose rate (“HDR”)
[Id. at ¶¶ 6-7.]
Dr. Lederer described examples
of his patients who would be affected if the Court denies a
[Id. at ¶¶ 8-10.]
Further, he states
that Queen’s radiation oncology department staff is not as
qualified to perform the procedures relevant to this Motion.
[Id. at ¶¶ 11-15.]
Dr. Lederer also discussed examples of some
of the other PRO physicians’ patients, [id. at ¶¶ 17-18,] and
refuted several points in Ms. Chadwick’s affidavit, including her
contention that Kuakini Medical Center (“Kuakini”) is a viable
alternative location for the procedures at issue in this Motion
[id. at ¶¶ 19-25].
Dr. Lederer describes problems that he and
the other PRO physicians have had accessing their patients’
medical records at Queen’s, [id. at ¶¶ 26-28,] and he discusses
Plaintiffs’ ongoing efforts to secure alternative sites to
perform the procedures at issue in this Motion [id. at ¶¶ 32.ac].
Attached to the Lederer Declaration and the Lederer
Affidavit are several exhibits, including correspondence between
PRO, and/or its physicians, and Queen’s.
Dr. Bieniek’s declaration, the affidavit of Cancer
Patient 1, and the declarations of cancer patient B.J. and D.S.
all discuss individual cases in which Plaintiffs allege the
patients will be denied necessary treatment in the absence of a
preliminary injunction. [Pltfs.’ Direct Evid., Decl. of Eva
Bieniek, M.D. (“Bieniek Decl.”), Aff. of Cancer Patient 1, Decl.
of Cancer Patient B.J., Decl. of Cancer Patient D.S.]
Defendants’ Supplemental Evidence
Defendants submitted Supplemental Affidavits for Direct
Examination from the following witnesses: 1) Ms. Chadwick; 2)
Ms. Hirata; 3) Dr. Moon; and 4) Mr. Talavera.
36-3, 36-8, 36-11.]
[Dkt. nos. 36-1,
Defendants also submitted Affidavits for
Direct Examination from: 1) Stuart Tsuji, M.D.; 2) Marilynn Hata;
and 3) Kaye K. Kawahara, M.D.
[Dkt. nos. 36-12, 36-14, 36-15.]
In pertinent part, Ms. Chadwick asserts that Queen’s
can maintain continuity of care for PRO patients, even if the PRO
physicians are no longer able to perform procedures at Queen’s.
[Defs.’ Suppl. Evid., Attch. A (Suppl. Aff. for Direct Exam. of
Darlena Chadwick (“Suppl. Chadwick Aff.”)), at ¶¶ 2-4.]
presents further testimony about Queen’s concerns about the PRO
physicians’ practice of transferring patients to PRO affiliated
[Id. at ¶¶ 5-9.]
She states, “[t]he task force
committee was convened in large part to address these concerns
. . . .
The task force considered feedback, including the
complaints above, and concluded that the transfers confused
patients, caused discord among referring physicians, and
jeopardized patient safety and continuity of care.”
[Id. at ¶
Ms. Hirata testified, inter alia, that all of the
Listed Procedures can be delivered at other facilities besides
[Defs.’ Suppl. Evid., Attch. B (Suppl. Aff. for Direct
Exam. of Emily Hirata (“Suppl. Hirata Aff.”)), at ¶¶ 2-2.i.]
also states that “[f]rom a technical perspective, all radiation
oncologists who are listed on a facility’s Nuclear Regulatory
Commission (NRC) license are able to perform high dose rate
radiation brachytherapy, regardless of the site of treatment.”
[Id. at ¶ 3.]
Queen’s has five radiation oncologists, who are
not affiliated with PRO, listed on its NRC license.9
Ms. Hirata acknowledges: “HDR Brachytherapy for the prostate, is
considered an inpatient procedure requiring an operation room.
Best practices would be to have a patient’s entire continuum of
radiation therapy, including the surgical insertion and radiation
delivery, done at the same facility.”
[Id. at ¶ 5.]
that a non-Queen’s radiation oncologist could perform an HDR
Brachytherapy for the prostate at any hospital with an operating
room and an NRC license, such as Kuakini, with the use of a
mobile HDR treatment unit.
She argues that Kuakini is a viable
alternative for HDR Brachytherapy treatments, in part because
Queen’s physician Stuart Tsuji testified that he has been
“specifically trained and [is] competent to perform . . .
“Permanent Seed Implantation for Prostate Cancer; Stereotactic
Body Radiotherapy; Interstitial and Intercavitary HDR
Brachytherapy; and Intensity Modulated Radiotherapy.” [Defs.’
Suppl. Evid., Attch. E (Aff. for Direct Exam. of Stuart Tsuji,
M.D. (“Tsuji Aff.”)), at ¶¶ 1, 3.] During the course of his
residence and his work at Queen’s, Dr. Tsuji has participated in
over thirty permanent seed implants and HDR prostate
brachytherapy procedures. [Id. at ¶ 4.]
Queen’s provides dosimetry staff to Kuakini on a contract basis.
[Id. at ¶¶ 6-7.]
Dr. Moon states that HDR Brachytherapy can be performed
at “any facility that has an HDR suite”, and he believes the PRO
affiliated facility on Liliha Street has an HDR suite.
Suppl. Evid., Attch. C (Suppl. Aff. for Direct Exam. of Scott
Moon, M.D. (“Suppl. Moon Aff.”)), at ¶¶ 3.]
He states that
Kuakini’s NRC license authorizes it to use radioactive materials,
including brachytherapy and prostate seeds.
(Kuakini’s NRC license).]
PRO physicians Vincent Brown and Thanh
Huynh have active privileges at Kuakini.
[Id. at ¶ 7, Exh. B
[Suppl. Moon Aff. at ¶
He also emphasizes that prostate brachytherapy is never “the
single best option for curative therapy.
Rather, it is simply
one of a number of treatment options that a patient may choose.”
[Id. at ¶ 9 (citation omitted).]
He also contests Plaintiffs’
claims that: 1) Dr. Lederer is the only radiation oncologist who
can perform pediatric treatments; 2) pediatric external radiation
treatments always require general anesthesia and can only be
performed at Queen’s;10 and 3) stereotactic body radiotherapy
(“SBRT”) requires tomotherapy equipment and cannot be performed
at the PRO affiliated facilities.
[Id. at ¶¶ 10-15.]
Mr. Talavera also presented testimony that anesthesia was
not used in the majority of pediatric oncology treatments at
Queen’s from 2008 to 2011. [Defs.’ Suppl. Evid., Attch. D
(Suppl. Aff. for Direct Exam. of Randy Talavera (“Suppl. Talavera
Aff.”)), at ¶¶ 2-3.]
Marilyn Hata, office manager for Island Urology, and
Queen’s oncologist Kaye Kawahara testified regarding referring
physician complaints that Dr. Lederer, and PRO physicians in
general, transferred their patients from Queen’s to PRO
affiliated facilities for procedures.
[Defs.’ Suppl. Evid.,
Attch. F (Aff. for Direct Exam. of Marilyn Hata (“Hata Aff.”)),
Attch. G (Aff. for Direct Exam. of Kaye Kawahara, M.D. (“Kawahara
Plaintiffs’ Supplemental Evidence
Plaintiffs submitted an affidavit by urologist Todd
Miller who testified that he refers all of his patients who
require HDR brachytherapy to Dr. Lederer, who Dr. Miller believes
has the most skill and experience in brachytherapy of any
physician on the island.
Dr. Miller testified that he would not
feel comfortable referring his patients to any other physician.
[Pltfs.’ Suppl. Evid, Aff. of Todd Miller, M.D. (“Miller Aff.”),
at ¶¶ 1, 5.]
He states that Queen’s is the only facility where
his patients could receive HDR brachytherapy, and that he needs
to be able to refer his patients needing brachytherapy to
Dr. Lederer for treatment at Queen’s.
[Id. at ¶¶ 6-7.]
Plaintiffs also submitted a rebuttal affidavit by
[Pltfs.’ Suppl. Evid, Rebuttal Aff. of
John Lederer, M.D. (“Rebuttal Lederer Aff.”).]
contests Queen’s allegations that PRO physicians have
unnecessarily transferred Queen’s patients to PRO affiliated
[Id. at ¶¶ 4-5.]
He states that neither he nor any
other physicians were aware that PRO affiliated facilities failed
to provide Queen’s with medical records upon request.
the PRO physicians have not refused to participate in the PAAROT
program or attend multi-disciplinary team meetings.
[Id. at ¶¶
He also denied that the transfers of Queen’s patients to
PRO affiliated facilities were based on the patient’s ability to
pay for treatments.
[Id. at ¶¶ 10-11.]
Finally, Dr. Lederer
contests Ms. Hirata’s testimony that the Listed Procedures can be
performed at other facilities besides Queen’s.
[Id. at ¶¶ 12-
Court Ordered Supplemental Briefing
In the Court’s February 22, 2012 Preliminary Ruling,
the Court informed the parties that it was going to grant a
preliminary injunction in favor of Dr. Lederer, but that the
preliminary injunction would be limited to certain patients and
would only apply to the Listed Procedures which Dr. Lederer
cannot reasonably perform at other facilities besides Queen’s.
The Court ordered the parties to submit supplemental briefing on
the issues of: 1) which of the Listed Procedures, if any,
Dr. Lederer can reasonably perform at facilities other than
Queen’s; and 2) what procedures must be implemented to allow
Dr. Lederer sufficient access to Queen’s to perform those
In their supplemental memorandum, Plaintiffs state that
the PRO physicians “have moved most of their practice” off of
Queen’s campus and “are in the process of obtaining privileges at
They also are working through the
process of installing the necessary equipment and obtaining the
required approvals to provide all treatments at these
[Pltfs.’ Suppl. Mem. at 1.]
Plaintiffs argue that,
at the present time, all of the Listed Procedures can only be
performed at Queen’s, and Kuakini is not a viable alternative.
[Id. at 2-7.]
Plaintiffs state that they are in the process of
purchasing: “a new generation linear accelerator that can
perform” SBRT and tomotherapy; [id. at 2-3;] and “new CT scanners
for installation at alternative facilities” [id. at 5].
As to the administrative procedures necessary to allow
Dr. Lederer to perform the Listed Procedures at Queen’s,
Plaintiffs argue that Dr. Lederer “needs to be able to exercise
his QMC privileges fully”, including having access to a
consultation room, necessary equipment, dosimetry staff, and
other hospital personnel.
[Id. at 7.]
He also needs to be able
to conduct necessary follow up examinations, and Plaintiffs argue
that, in the event that Dr. Lederer himself is not available for
any follow up examinations, another one of the PRO physicians
should be able to exercise his or her privileges to examine the
[Id. at 7-8.]
In addition, Plaintiffs state that,
“[t]o the extent that a patient of Dr. Lederer, or any of the
Plaintiff physicians, happens to be an inpatient at QMC,
Plaintiffs request that they be allowed to exercise their
privileges with respect to that patient, including consulting
with and examining the patient.”
[Id. at 8.]
Plaintiffs argue that “Dr. Lederer and all the Plaintiff
physicians need full and unfettered access to the medical records
of their patients . . . . in perpetuity[.]”
Plaintiffs suggest the filing of quarterly status
reports and the referral of this matter to the magistrate judge
for the resolution of any ongoing disputes related to the
preliminary injunction or to Plaintiffs’ transition of their
services off of Queen’s campus.
[Id. at 8-9.]
In their supplemental memorandum, Defendants state that
Queen’s will permit Dr. Lederer to perform the following
procedures at Queen’s: 1) permanent seed implants for prostate
cancer; 2) HDR brachytherapy for prostate cancer; 3) volume
studies related to permanent seed implants or HDR brachytherapy;
4) external beam radiation therapy related to permanent seed
implants or HDR brachytherapy; 5) procedures requiring general
anesthesia, including pediatric external beam radiation; and 6)
endoluminal trachea, bile duct (brachytherapy) radiation therapy.
[Defs.’ Suppl. Mem. at 2-4.]
Defendants argue that the following
procedures, or a comparable procedure which meets the applicable
standard of care, can reasonably be performed at other facilities
besides Queen’s: 1) tomotherapy; 2) 4D CT scans; and 3) SBRT.
[Id. at 4-6.]
As to the alleged denial of access to patients’ medical
records, Queen’s states:
QMC has allowed, and will continue to allow,
Dr. Lederer full access to the medical records of
patients under his care, including existing
databases and spreadsheets, that fall within the
scope of the Court’s Temporary Restraining Order
as well as its final ruling on the pending Motion,
consistent with QMC’s existing procedural and
administrative requirements relating to access of
[Id. at 7 (footnote omitted).]
Further, although the ruling on
the Motion will be limited to Dr. Lederer, Queen’s affirms that
all “PRO-affiliated radiation oncologists will also be provided
access to the medical records of their patients consistent with
QMC’s existing procedural and administrative requirements
relating to such access.”
[Id. at 7 n.2.]
As to the administrative procedures necessary to allow
Dr. Lederer to perform the procedures covered by the preliminary
injunction, Defendants emphasizes that Queen’s should not be
forced to relax its existing administrative procedures, bylaws,
policies, and procedures, including scheduling procedures.
Court also notes that Queen’s argues Dr. Lederer does not need a
consultation room at Queen’s because he can conduct all
consultations at his office and, in the event Dr. Lederer cannot
perform a necessary follow-up examination, a Queen’s physician
should provide any necessary coverage.
[Id. at 7-9.]
Defendants argue that the Court should require
Dr. Lederer to: 1) within ninety days, stop taking patients who
Dr. Lederer believes may require treatment at Queen’s; [id. at
2;] 2) within 180 days, complete all treatments of all patients
at Queen’s; [id.;] 3) “submit a detailed plan and timeline
specifying the equipment, approvals and licenses necessary for
Dr. Lederer to provide the procedures at non-QMC facilities”;
[id. at 10;] and submit “detailed monthly updates describing the
status of Plaintiffs’ license, approval and equipment acquisition
VII. Plaintiffs’ Untimely Filings
Before turning to the merits of Plaintiffs’ Motion, the
Court notes that Plaintiffs have not complied with the Court’s
deadlines and the applicable Local Rules.
First, Plaintiffs’ affidavits in lieu of direct
testimony were due on February 8, 2012.
filed 1/31/12 (dkt. no. 8), at 31.]
[1/31/12 Hrg. Trans.,
Plaintiffs, however, did not
file Plaintiffs’ Direct Evidence until February 9, 2012.
to the hearing on the Motion, the Court granted the parties’
request for leave to file supplemental declarations.
ordered the parties to file their respective declarations by
Monday morning, February 13, 2012, and to deliver the courtesy
copies, which are required by the Local Rules, to the Court by
noon that day.
[Minutes, filed 2/10/12 (dkt. no. 34).]
Plaintiffs, however, did not file Plaintiffs’ Second Submission
of Affidavits until 7:18 p.m. on February 13, 2012, and
Plaintiffs did not submit their courtesy copies of that document.
In light of the importance of the issues raised in the
instant Motion, this Court will not penalize Plaintiffs.
Court, however, emphasizes that it does not condone the failure
to comply with the applicable rules and the deadlines that the
The Court CAUTIONS Plaintiffs and their counsel
that the failure to comply with court rules and deadlines in the
future may result in sanctions, including, inter alia, the
striking of the document and/or the imposition of attorneys’
Defendants’ RJN asks this Court to take judicial notice
of the contents of six pages from the website of The Cancer
Center of Hawai`i (“CCH”).
[Dkt. nos. 39-2 to 39-7.]
to the website, CCH has two locations, Liliha and Leeward, and
the six PRO physicians are CCH’s physicians.
[Dkt. nos. 39-2,
At the hearing on the Motion, Plaintiffs’ counsel stated
that Plaintiffs own one-third of CCH.
Plaintiffs’ counsel noted
that the website “was prepared in mid-2011, and the only update
that’s been on there after 2011 was a statement that we’re still
open even though [HMC West and HMC East] closed.”
Trans., filed 3/9/12 (dkt. no. 57), at 5.]
Although he noted
some evidentiary issues associated with the content, Plaintiffs’
counsel stated that he did not did object to the Court’s taking
judicial notice of the website.
This Court “must take judicial notice if a party
requests it and the court is supplied with the necessary
Fed. R. Evid. 201(c)(1).
The court may judicially notice a fact that is not
subject to reasonable dispute because it:
(1) is generally known within the trial
court’s territorial jurisdiction; or
(2) can be accurately and readily determined
from sources whose accuracy cannot reasonably
Fed. R. Evid. 201(b).
In light of the foregoing, Defendants’ RJN is HEREBY
The applicable standard in light of Winter v. Natural
Resources Defense Council, Inc., 555 U.S. 7, 20 (2008), and
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131
(9th Cir. 2011), is set forth in this Court’s TRO Order.
Brown Jordan Int’l, Inc. v. Mind’s Eye Interiors, Inc., 236 F.
Supp. 2d 1152, 1154 (D. Haw. 2002) (“The standard for issuing a
temporary restraining order is identical to the standard for
issuing a preliminary injunction.”).
At the outset, the Court notes that it must distinguish
between Dr. Lederer’s request for a preliminary injunction and
the LLCs’ request.
Dr. Lederer’s Request for a Preliminary Injunction
Dr. Lederer is a plaintiff in his individual capacity
and in his capacity as a manager of the LLCs.
on behalf of all of the PRO physicians.
He purports to act
The Ninth Circuit has
recognized that a court may deny standing to a party because of
prudential limitations on the standing doctrine.
limitations include a requirement that the plaintiff assert his
own rights, rather than rely on the rights or interests of a
Wedges/Ledges of Cal., Inc. v. City of Phoenix,
24 F.3d 56, 61 (9th Cir. 1994) (citation and internal quotation
The Court therefore FINDS that Dr. Lederer does
not have standing to pursue claims on behalf of the other five
physicians who are either equity members or employees of PRO
(“Other PRO Physicians”).
The Court now turns to the Winter
analysis of Dr. Lederer’s claims.
Likelihood of Success
Plaintiffs’ due process claim is based on Silver v.
Castle Memorial Hospital, 53 Haw. 475, 479-80, 497 P.2d 564, 568
(1972), in which the Hawai`i Supreme Court 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.”
In the discussion of whether there is federal
jurisdiction over the instant case, the TRO Order stated:
Silver also discussed the distinction between
public, private, and quasi-public hospitals. Id.
at 481-83, 497 P.2d at 569-70. 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 on
2012 WL 381209, at *5.
The Court clarifies that the TRO Order’s
statement that it could not find that Queen’s was a quasi-public
hospital was limited to Queen’s status in relation to the federal
government for purposes of a due process claim under the United
In determining whether Queen’s is a
quasi-public hospital subject to the holding in Silver, this
Court may also consider Queen’s status in relation to the state
Although the parties have not devoted significant
attention to this issue, based on the current record, this Court
finds that Dr. Lederer has a reasonable likelihood of success on
the issue whether Queen’s is a quasi-public hospital under
See Winnemucca Indian Colony v. United States ex rel.
Dep’t of the Interior, No. 3:11–cv–00622–RCJ–VPC, 2011 WL
4377932, at *4 (D. Nev. Sept. 16, 2011) (“‘Serious questions
going to the merits’ must mean that there is at least a
reasonable probability of success on the merits.
probability’ appears to be the most lenient position on the
sliding scale that can satisfy the requirement that success be
Under Silver, “‘quasi public’ status is achieved if
what would otherwise be a truly private hospital was constructed
with public funds, is presently receiving public benefits or has
been sufficiently incorporated into a governmental plan for
In the TRO Order, this Court ultimately concluded, for
purposes of the order issuing the temporary restraining order,
that: 1) it has federal question jurisdiction over Count VII,
which alleges that Defendants violated 42 U.S.C. § 1320a-7b and
that the violation constitutes an actionable claim under Haw.
Rev. Stat. Chapter 480; and 2) it has supplemental jurisdiction
over the remaining claims in the Complaint. 2012 WL 381209, at
providing hospital facilities to the public.”
497 P.2d at 569 (footnotes omitted).
53 Haw. at 481-82,
The Hawai`i Supreme Court
held that Castle Memorial Hospital was quasi-public because it
“was the recipient of state and federal funding during its
Id. at 483, 497 P.2d at 570.
In the present
case, Plaintiffs have submitted evidence that Queen’s was
established by King Kamehameha IV and Queen Emma in 1859, and it
was “THE FIRST HOSPITAL IN THE UNITED STATES FOUNDED BY
[Lederer Aff., Exh. K (Queen’s 2009 federal income
tax return), at 2.]
This reasonably supports an argument that
Queen’s meets the Silver standard for a quasi-public hospital
because Queen’s was established by what was, at the time, the
government of Hawai`i.
Thus, based on the current record, the
Court finds, for purposes of the instant Motion, that Dr. Lederer
has raised serious questions going to the merits of the issue
whether Queen’s is a quasi-public hospital.
Having determined that Dr. Lederer is likely to succeed
on the issue whether Silver applies to Queen’s, the Court turns
The Court also notes that the footer of Queen’s
stationary states “Founded in 1859 by Queen Emma and King
Kamehameha IV”. See, e.g., Lederer Decl., Exh. H (letter dated
12/12/11 to John L. Lederer, M.D., from Mark H. Yamakawa,
Executive Vice President and Chief Operating Officer of Queen’s).
The Court notes that the parties did not provide evidence on
the issue whether Queen’s receives state or federal funding, such
as through Medicare, Medicaid, or research grants. The Court
therefore expresses no opinion at this time on the issue whether
quasi-public status applies because Queen’s receives public
to the merits of Dr. Lederer’s due process claim.
In the section
of the TRO Order discussing Plaintiffs’ likelihood of success on
the merits, this Court stated:
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.
2012 WL 381209, at *8.
Throughout these proceedings, Defendants have taken the
position that Queen’s adopted the closed-department model based
on a legitimate policy decision that it is the model which is
best suited for providing optimal patient care and which also is
in Queen’s bests interests from an economic standpoint.
have steadfastly denied that the decision was based on concerns
about the PRO physicians’ competence or qualifications.
Defendants’ own affidavits, however, belie their claim that the
decision was unrelated to the qualifications of the PRO
Ms. Chadwick testified that patient and referring
physician complaints were one of the primary reasons why Queen’s
convened the task force which recommended adopting the closeddepartment model.
Aff. at ¶ 10.]
[Chadwick Aff. at ¶¶ 14, 19; Suppl. Chadwick
Further, in the course of making that
recommendation, the task force investigated the complaints and
“found that the PRO radiation oncologists’ practice of
transferring patients for no apparent medical reason raised a
number of concerns.”
[Chadwick Aff. at ¶ 15.]
Greenwood, a member of the task force, testified that, during the
task force’s investigation, he learned that PRO physicians were
transferring patients who had their initial consultation at
Queen’s to a PRO affiliated facility for treatment.
Aff. at ¶ 4.]
Prior to stating that the closed-department model
was in the best interests of radiation oncology patients, [id. at
¶ 8,] Dr. Bryant-Greenwood noted that the PRO physicians have
refused to participate in the PAAROT program and that some PRO
physicians failed to regularly attend patients’ multidisciplinary team meetings [id. at ¶¶ 6-7].
witnesses, including Dr. Moon - the Medical Director, and
Mr. Talavera - the Manager of the Radiation Therapy and Medical
Physics, of the Queen’s Radiation Therapy Department, also
discussed the PRO transfer issue.
Talavera Aff. at ¶¶ 1, 4-6.]
[Moon Aff. at ¶¶ 1, 6;
Queen’s President and CEO also
noted the task force’s findings and conclusions about the PRO
transfer issue: “The task force found that this practice raised
quality and continuity of care concerns, and concluded that a
closed department model with employed physicians would
effectively address concerns regarding quality, patient safety
and continuity of care.”
[Ushijima Aff. at ¶ 13.]
The resolution itself states, in pertinent part:
WHEREAS, management and the task force
believe that [the radiation oncology program] has
many strengths, . . . and noted that the
transferring of patients to other facilities for
no medical reason or patient request raised
concerns regarding patient satisfaction, quality
of care and continuity of care;
WHEREAS, to improve upon the identified
areas of concern, management and the task force
outlined how such concerns may be best addressed;
. . . .
THEREFORE, BE IT RESOLVED:
Closed Radiation Therapy Department.
QMC shall have a closed radiation therapy
department staffed by radiation oncologists that
are employed by QMC.
[Lederer Aff., Exh. F at 1 (emphases in original).]
although the resolution itself does not name PRO or any of the
PRO physicians, taken in the context of the current record as a
whole, it is clear that the “transferring of patients” in the
resolution refers to what Queen’s perceived was a problem with
the PRO physicians’ referral practices.
It is undisputed that Queen’s gave the PRO physicians
the opportunity to join the Queen’s staff, an indication,
perhaps, that Queen’s had no concerns about the clinical
competence of the PRO physicians.
The evidence currently before
this Court, however, establishes that Queen’s viewed the PRO
physicians’ referral practices as a serious problem and that this
problem was a substantial motivating factor in Queen’s decision
to adopt the closed-department model.
The referral practice -
which, based on the current record, was common to all PRO
physicians - is arguably an issue of the PRO physicians’
professional qualifications because it concerns the manner in
which they were conducting their practice at Queen’s.13
Silver, Dr. Lederer is entitled judicial review on the issue
whether Defendants denied him procedural due process when they
effectively revoked his privileges based on an evaluation of his
Further, Dr. Lederer has presented
evidence that, under the circumstances, Queen’s decision to adopt
the closed-department model was unreasonable, arbitrary and
capricious because it was part of an attempt to eliminate all
competition in the radiation oncology field in Hawai`i.
Court therefore FINDS, for purposes of the instant Motion, that
Dr. Lederer is reasonably likely to succeed on the merits of
Count I, his due process claim.
Likewise, the criticism that the PRO physicians refused
to participate in the PAAROT program and that some PRO physicians
failed to regularly attend multi-disciplinary team meetings
regarding patients’ care plans are also arguably issues of the
PRO physicians’ professional qualifications.
Unfair, Deceptive, Anti-competitive
and Illegal Trade Practices Claim
Count VI alleges, in pertinent part:
46. PRO and its members, including the other
Plaintiffs are “persons” who have been injured in
its (sic) business or property by reason of the
unlawful acts alleged herein. The actions as
heretofore alleged constitute an unlawful and
unfair business practice using illegal, improper
devices to secure its competitive status.
47. As a direct and proximate result of the
Defendants’ actions as heretofore alleged,
Plaintiffs’ (sic) have and will suffer economic
damages which entitle the Plaintiffs to
compensatory, punitive, and treble damages under
Hawaii Revised Statutes Chapter 480, as amended.
[Complaint at pgs. 22-23.]
Unfair methods of competition are unlawful under Haw.
Rev. Stat. § 480-2(a) and, under § 480-2(e), any person may bring
an unfair methods of competition (“UMOC”) claim.
Rev. Stat. § 480-13(a) states, in pertinent part:
any person who is injured in the person’s business
or property by reason of anything forbidden or
declared unlawful by this chapter:
(1) May sue for damages sustained by the
person, and, if the judgment is for the
plaintiff, the plaintiff shall be
awarded a sum not less than $1,000 or
threefold damages by the plaintiff
sustained, whichever sum is the greater,
and reasonable attorney’s fees together
with the costs of suit; provided that
indirect purchasers injured by an
illegal overcharge shall recover only
compensatory damages, and reasonable
attorney’s fees together with the costs
of suit in actions not brought under
section 480-14(c); and
(2) May bring proceedings to enjoin the
unlawful practices, and if the decree is
for the plaintiff, the plaintiff shall
be awarded reasonable attorney’s fees
together with the costs of suit.
The Hawai`i Supreme Court has stated that there are “three
elements essential to recovery under HRS § 480-13: (1) a
violation of HRS chapter 480; (2) which causes an injury to the
plaintiff’s business or property; and (3) proof of the amount of
Davis v. Four Seasons Hotel Ltd., 122 Hawai`i 423,
435, 228 P.3d 303, 315 (2010) (footnote and citations omitted).
Further, the Hawai`i Supreme Court has held:
“the elements of (1) resulting injury to business
or property and (2) damages” are “two distinct
elements” of HRS § 480-13(a), and went on to note
Indeed, federal case law has interpreted the
“injury to business or property” language of
section 4 of the Clayton Act as a causation
requirement, requiring a showing of
“antitrust injury.” “Plaintiffs must prove
. . . [an] injury of the type the antitrust
laws were intended to prevent[, one] . . .
that flows from that which makes defendants’
acts unlawful. The injury should reflect the
anticompetitive effect either of the
violation or of anticompetitive acts made
possible by the violation. It should, in
short, be the ‘type of loss’ that the claimed
violations . . . would be likely to cause.”
Also known as the “fact of damage”
requirement, the antitrust plaintiff need not
prove with particularity the full scope of
profits that might have been earned.
Instead, it requires a showing, with some
particularity, of actual damage caused by
anticompetitive conduct that the antitrust
laws were intended to prevent.
[Robert’s Haw. Sch. Bus, Inc. v. Laupahoehoe
Transp. Co., Inc., 91 Hawai`i 224, 254 n.31, 982
P.2d 853, 883 n.31 (1999)] (internal citations
omitted; ellipses and brackets in original).
Id. at 439, 228 P.3d at 319 (some citations omitted) (some
alterations in original).
In the same letter informing PRO physicians of Queen’s
adoption of the closed-department model, Ms. Chadwick stated that
Queen’s intended “to offer employment to all of the current
radiation oncologists on the QMC Medical Staff who satisfactorily
meet the qualifications for and conditions of employment.”
[Lederer Aff., Exh. E (9/15/11 letter to Thanh Huynh, M.D., from
Ms. Chadwick confirmed that she invited all
radiation oncologists on Queen’s medical staff, including the six
PRO physicians, to apply for employment at Queen’s in light of
the transition to a closed-department model.
[Chadwick Aff. at ¶
Ms. Chadwick also informed PRO that radiation oncologists
employed by Queen’s: 1) can only provide services at Queen’s and
Queen’s-affiliated facilities; and 2) cannot have an “ownership
interest or a compensation arrangement with any other hospital,
ambulatory service center, clinic, facility or other entity that
provides radiation oncology services.”
[Lederer Aff., Exh. G
(11/18/11 letter to PRO from Ms. Chadwick).]
testified that, had Queen’s plan to hire all of PRO’s physicians
Dr. Lederer states that the group was informed by letter
that the resolution affected the privileges of the entire group.
[Lederer Aff. at ¶ 11.]
worked, Queen’s “would be the employer of all the civilian
radiation oncologists in the state and there would be no
[Lederer Aff. at ¶ 6.]
He also testified that the
conditions of Queen’s employment “would require us to breach
existing business relationships with non-QMC entities” and
“prohibit us from generating income from our existing business
relationships, and thereby eliminate most of its competition.”
[Id. at ¶ 12.]
Further, although it is not possible to determine based
on the current record what Defendants knew about the status of
HMC-West and HMC-East when they adopted the resolution, the
facilities’ closures were publicly announced during the period in
which PRO continued to negotiate with Queen’s regarding the
transition to a closed department.
[Lederer Aff., Exh. H
(12/21/11 letter to Dr. Lederer from Mark H. Yamakawa, Queen’s
Executive Vice President and Chief Operating Officer), Exh. I
(12/28/11 Pacific Business News article, “Hawaii Medical Center
West closed to public”, stating that HMC officials announced the
impending closure of its facilities on December 26); Lederer
Decl. at ¶¶ 29-31, Exhs. Q, R, S (correspondence between PRO
physicians and Queen’s with dates from November 3, 2011 to
January 23, 2012).]
With the closure of HMC-West and HMC-East,
Queen’s is the only NRC licensed facility with an operating room
where certain procedures can be, or at least currently are being,
[Lederer Aff. at ¶¶ 16-17; Defs.’ Suppl. Mem. at 2.]
After the Court entered the TRO Order, Dr. Lederer was
allowed to continue performing the Listed Procedures for existing
patients at Queen’s, but he had to refuse new referrals from
treating physicians who wanted to refer Queen’s inpatients to him
[Lederer Decl. at ¶¶ 4, 10.]
PRO, of which
Dr. Lederer is a partner and member, generated almost fifty
percent of its gross business revenue from its relationship with
Queen’s prior to September 15, 2011.
[Lederer Aff. at ¶¶ 1, 8.]
Based upon the current record, the Court FINDS that
Dr. Lederer has shown that he is likely too succeed on the merits
of Count VI.
Dr. Lederer is likely to succeed on the merits of
each element of the § 480-13 claim: 1) the manner and timing in
which Queen’s implemented its new closed-department policy was an
unfair method of competition under the circumstances; 2) Queen’s
actions caused an injury to Dr. Lederer’s professional practice
that is the type of injury that antitrust laws were intended to
prevent; and 3) Dr. Lederer suffered damages.
Dr. Lederer must also show that he is likely to suffer
irreparable harm in the absence of a preliminary injunction.
this Court noted in the TRO Order, monetary harm alone is
generally not considered irreparable.
2012 WL 381209, at *6 n.6
(citing Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football
League, 634 F.2d 1197, 1202 (9th Cir. 1980); Cal. Pharmacists
Ass’n v. Maxwell–Jolly, 563 F.3d 847, 852 (9th Cir. 2009)).
contrast, if Queen’s implementation of the closed-department
model would harm either Dr. Lederer’s doctor-patient relationship
or his relationships with the referring physicians through whom
he establishes his client base and his ability to compete in the
industry, to Court finds that those are intangible harms which
cannot be remedied through an award of damages.
The Court has
identified three categories of Dr. Lederer’s patients that are
relevant to the analysis of the irreparable harm factor, as well
as the public interest factor.
Group One Patients
The first category consists of Dr. Lederer’s patients
who, prior to February 1, 2012, began receiving radiation therapy
treatments at Queen’s (“Dr. Lederer’s Group One Patients”).
Mr. Ushijima, Queen’s President and CEO, testified that Queen’s
will allow Dr. Lederer’s Group One Patients to complete their
radiation treatments at Queen’s, including follow-up
[Ushijima Aff. at ¶¶ 2, 17.]
Dr. Lederer is able to continue treating his Group One Patients
at Queen’s, the doctor-patient relationships between Dr. Lederer
and his Group One Patients, and Dr. Lederer’s relationships with
the physicians who referred his Group One Patients to him, are
not jeopardized by Queen’s current transition to a closed
radiation oncology department.
The Court FINDS that Dr. Lederer
is not likely to suffer irreparable harm as to his Group One
Patients in the absence of a preliminary injunction, and
therefore the Court CONCLUDES that Dr. Lederer is not entitled to
a preliminary injunction as to his Group One Patients.
Group Two Patients
The second category consists of Dr. Lederer’s patients
for whom Dr. Lederer developed a treatment plan prior to
February 1, 2012 which included one or more of the Listed
Procedures, but who had not begun any of the Listed Procedures
prior to February 1, 2012 (“Dr. Lederer’s Group Two Patients”).
When Dr. Lederer’s Group Two Patients require procedures that can
only be performed at Queen’s, under Queen’s closed-department
policy, Dr. Lederer would have to refer those patients to a
Queen’s radiation oncologist for those procedures.
however, likely expected Dr. Lederer to perform the procedures
and having another radiation oncologist, with whom the patients
have not established relationships of professional confidence and
trust, perform the procedures is likely to cause the patients
significant anxiety during an already stressful and vulnerable
period in their lives.
This, in turn, is likely to cause
distrust and unease when Dr. Lederer resumes the patients’
treatments, impairing the doctor-patient relationships that
Dr. Lederer has with those patients.
The Court also notes that
this type of disruption in patient care is likely to dissuade the
physicians who referred Dr. Lederer’s Group Two Patients from
referring future patients to him.
The Court therefore FINDS that
Dr. Lederer is likely to suffer irreparable harm to his
relationships with his Group Two Patients and their referring
physicians in the absence of a preliminary injunction, and that
this harm cannot be remedied through monetary damages.
Group Three Potential Patients
The final category of patients consists of new patients
who were referred, or who would have been referred, to
Dr. Lederer after February 1, 2012, but who Dr. Lederer could not
accept as patients pursuant to Queen’s closed-department policy
(“Dr. Lederer’s Group Three Potential Patients”).
does not have doctor-patient relationships with his Group Three
Potential Patients and, as previously noted, the economic harm
that Dr. Lederer will suffer because of the loss of income that
he would have received if he had been able to accept his Group
Three Potential Patients is not considered irreparable for
purposes of a preliminary injunction.
Dr. Lederer, however, has presented evidence that: a
standard course of treatment for many of his patients begins with
a referral to him by the patient’s urologist; [Lederer Decl. at
¶¶ 6.a, 7.a;] he receives other referrals from surgeons and, to a
lesser extent, from patients’ primary oncologists; [id. at ¶ 21;]
and, since the issuance of the TRO Order, Plaintiffs have been
forced to refuse referrals from treating physicians who have
inpatients at Queen’s, but still want to refer those patients for
services through PRO [id. at ¶ 4].
testimony by Dr. Miller, who stated that he believes there is no
other physician on Oahu who has Dr. Lederer’s experience in
brachytherapy and that he would not feel comfortable referring
his patients to anyone else.
[Miller Aff. at ¶ 5.]
stated that, “[i]n order to provide the treatment necessary for
[his] patients, [he] need[s] to be able to continue to refer
patients to Dr. Lederer for brachytherapy, to be performed at
[Id. at ¶ 7.]
Defendants themselves presented testimony regarding
physicians who have referred patients to Dr. Lederer but who only
want him to treat their referred patients at Queen’s.
Marilyn Hata, the office manager for Island Urology - a practice
group led by William J. Yarborough, M.D., testified that both she
and Dr. Yarborough have informed Dr. Lederer that “Dr. Yarborough
expects and wants all Island Urology patients that are referred
to PRO for radiation therapy to be treated at QMC rather than
[Hata Aff. at ¶¶ 1, 3.]
Dr. Kawahara, an oncologist affiliated with Queen’s, gave similar
testimony regarding referral to PRO in general.
at ¶¶ 1, 3.]
The evidence presented establishes that Dr. Lederer
relies on referrals for a significant number of his clients.
Both parties’ evidence establishes that Queen’s facilities and
support services for the Listed Procedures are superior to those
available to Dr. Lederer elsewhere, if those procedures are
available at all.
Further, both parties have emphasized the
importance of continuity of care during treatment to, inter alia,
ensure the accuracy of the equipment in relation to the area to
be treated on a patient.
Thus, it can be reasonably inferred
from the evidence that a significant portion of Dr. Lederer’s
referrals are contingent on his ability to perform procedures
that currently can only be performed at Queen’s.
therefore FINDS that Dr. Lederer is likely to suffer irreparable
harm as to his Group Three Potential Patients because, without a
preliminary injunction: 1) he will be deprived of the opportunity
to compete for those potential patients and will lose competitive
ground in the industry; and 2) his relationship with the
physicians who would have referred the Group Three Potential
Patients, as well as future patients beyond the period at issue
in this Motion, to Dr. Lederer is likely to suffer irreparable
Balance of the Equities
In the TRO Order, this Court stated:
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 a temporary
restraining order is the same as for a motion for
a preliminary injunction.
Defendants have stated that they adopted the
closed-facility 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. . . .
2012 WL 381209, at *7.
Similarly, the Court finds that Defendants will suffer
little harm if a preliminary injunction delays the implementation
of the closed-department policy, particularly where the
preliminary injunction only applies to a specific list of
procedures and where Plaintiffs are actively engaged in securing
other locations where they can perform those procedures.
Court therefore FINDS that the balance of the equities factor
weights in favor of granting a preliminary injunction to
In the TRO Order, this Court stated:
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
Finally, the district court should
give 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  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.
Id. at *7-8.
The primary non-parties who will be affected by the
grant or denial of a preliminary injunction are Dr. Lederer’s
Group Two Patients and any new patients that are likely to come
to Dr. Lederer in the near future and who require a procedure
that can only be performed at Queen’s.
As to Dr. Lederer’s Group
Two Patients, the factors discussed in connection with the
irreparable harm factor are also relevant to the public interest
As to the new patients who are likely to come to
Dr. Lederer in the near future requiring a procedure that can
only be performed at Queen’s, Defendants have not presented any
evidence that Queen’s has a radiation oncologist on staff with
comparable experience and qualifications to Dr. Lederer.
Defendants have presented evidence that there are
benefits to a closed radiation oncology department.
contemplated preliminary injunction in the instant Motion,
however, would still allow Defendants to begin implementing that
policy in a significant number of cases.
There are many
instances in which Dr. Lederer will not be permitted to use
Queen’s facilities because he can reasonably perform those
procedures elsewhere and, as discussed infra, the preliminary
injunction does not apply the Other PRO Physicians.
therefore FINDS that the public interest factor also weighs in
favor of granting Dr. Lederer’s request for a preliminary
Summary of Factors
Having found that all of the Winter facts weigh in
favor of issuing the preliminary injunction, the Court CONCLUDES
that Dr. Lederer is entitled to a preliminary injunction as to
his Group Two Patients and his Group Three Potential Patients,
but only as to the Listed Procedures that Dr. Lederer cannot
reasonably perform at other facilities besides Queen’s.
The LLCs’ Request for a Preliminary Injunction
The Court now turns to the Winter analysis of the LLCs’
request for a preliminary injunction.
Likelihood of Success
Count I, Plaintiffs’ due process claim, is based on the
effective termination of “Plaintiffs’ hospital privileges”.
[Complaint at ¶ 31.]
The individual PRO physicians, however, had
hospital privileges at Queen’s; the LLCs as entities did not have
It is possible for an entity to pursue the
due process claims of its members under the doctrines of third
party standing and representational or associational standing,
but those doctrines do not apply in this case.
“The requirements to establish third party standing
include ‘injury in fact,’ a close relation to the third party,
and ‘some hindrance to the third party’s ability to protect his
or her own interests.’”
Legal Aid Soc’y of Hawaii v. Legal
Servs. Corp., 145 F.3d 1017, 1031 (9th Cir. 1998) (quoting Powers
v. Ohio, 499 U.S. 400, 411, 111 S. Ct. 1364, 113 L. Ed. 2d 411
In the present case, there is no evidence that there is
some hindrance to the Other PRO Physicians’ ability to protect
their own interests, in fact, after this Court issued its
Preliminary Ruling, Plaintiffs filed an amended complaint adding
each of the Other PRO Physicians as plaintiffs.
(dkt. no. 44).]
As to representational or associational standing, the
United States Supreme Court has recognized:
an association has standing to bring suit on
behalf of its members when: (a) its members would
otherwise have standing to sue in their own right;
(b) the interests it seeks to protect are germane
to the organization’s purpose; and (c) neither the
claim asserted nor the relief requested requires
the participation of individual members in the
Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343
This doctrine does not apply because the Court finds
In United Food & Commercial Workers Union Local 751 v.
Brown Group, Inc., 517 U.S. 544 (1996), the Supreme Court held
that, in enacting the Worker Adjustment and Retraining
Notification Act (“WARN Act”), 29 U.S.C. § 2101 et seq., Congress
intended to abrogate the third element of the Hunt analysis,
which the Supreme Court stated was an “otherwise applicable
standing limitation”. 517 U.S. at 546. The instant case,
that the establishment of a due process claim on behalf of each
of the Other PRO Physicians requires their participation in the
Insofar as Dr. Lederer is pursuing a due process claim
on his own behalf and the LLCs do not have standing to pursue due
process claims on behalf of the Other PRO Physicians, the LLCs
have not established that they are likely to succeed on the
merits of the due process claims.
Unfair, Deceptive, Anti-competitive
and Illegal Trade Practices Claim
The LLCs are persons entitled to bring unfair methods
of competition claims pursuant to Haw. Rev. Stat. § 480-2(e).
See Haw. Rev. Stat. § 480-1 (“‘Person’ or ‘persons’ includes
individuals, corporations, firms, trusts, partnerships, limited
partnerships, limited liability partnerships, limited liability
limited partnerships, limited liability companies, and
incorporated or unincorporated associations, existing under or
authorized by the laws of this State, or any other state, or any
The analysis of Dr. Lederer’s likelihood of
establishing a violation of Chapter 480 also applies to the LLCs.
See infra Section I.A.2.
As previously noted, PRO generated
almost half of its business revenue from its relationship with
Queen’s prior to September 15, 2011, [Lederer Aff. at ¶ 8,] and
however, does not involve the WARN Act.
PRO has had to refuse referrals in light of Queen’s
implementation of the closed-department model [Lederer Aff. at ¶
Thus, for purposes of the instant Motion, Plaintiffs have
established that the LLCs’ business has suffered an injury that
anti-trust laws were intended to prevent and that the LLCs have
The Court therefore FINDS that the LLCs have
established a likelihood of success on the merits of Count VI.
Insofar as Dr. Lederer is a member and partner in PRO,
which is wholly owned by PROA, and he is likely to suffer
irreparable harm that impairs his ability to compete, the LLCs
are also likely to suffer irreparable harm in their ability to
Plaintiffs have not submitted any specific evidence
regarding the irreparable harm that the LLCs will suffer as to
the Other PRO Physicians without a preliminary injunction.
Dr. Lederer discussed a fifty-nine year-old patient of PRO
physician Eva Bieniek and a sixty-eight year-old patient of PRO
physician Paul DeMare, [Lederer Decl. at ¶¶ 17-18,] and
Dr. Bieniek also discussed the fifty-nine year-old patient, H.M.,
in her declaration [Bieniek Decl. at ¶¶ 2-8].
presented a declaration by Dr. DeMare’s sixty-eight year-old
[Id., Decl. of (Cancer Patient D.S.).]
and D.S., however, fall within the group of patients who Queen’s
will allow the PRO physicians to continue to treat under the
exception to the closed-department policy because they have
already begun treatments at Queen’s, as described in the section
discussing Dr. Lederer’s Group One Patients.
See infra Section
Plaintiffs have not presented any evidence about other
patients or the referrals that the Other PRO Physicians are
likely to receive.
Plaintiffs have only presented general
evidence of a loss of revenue as to the Other PRO Physicians, but
that does not constitute irreparable harm for purposes of a
In light of the current record,
Plaintiffs have not established that the LLCs are likely to
suffer irreparable harm in relation to the Other PRO Physicians.
The Court therefore CONCLUDES that the LLCs are not entitled to a
preliminary injunction as to the Other PRO Physicians.
Balancing of the Equities and the Public Interest
Although the LLCs have established that they are likely
to succeed on Count VI and that they are likely to suffer
irreparable harm as to Dr. Lederer, that harm will be addressed
by the preliminary injunction granted to Dr. Lederer.
additional relief in a preliminary injunction to the LLCs would
Thus, the balancing of the equities favors
Defendants and no further public interest would be served by
granting a preliminary injunction to the LLCs in relation to
The Court therefore CONCLUDES that the LLCs are not
entitled to a preliminary injunction.
III. Scope of the Preliminary Injunction
The Court now turns to the scope of Dr. Lederer’s
To the extent that Plaintiffs’
supplemental memorandum requests that the relief in the
preliminary injunction be extended to the Other PRO Physicians,
Plaintiffs’ request is DENIED.
The denial is without prejudice
to the Other PRO Physicians’ filing of their own motion for a
preliminary injunction, if warranted.
As to the specific procedures that the preliminary
injunction should encompass, in response to the Preliminary
Ruling, Defendants agree to the inclusion of the following
procedures: 1) permanent seed implants for prostate cancer; 2)
HDR brachytherapy for prostate cancer; 3) volume studies related
to permanent seed implants or HDR brachytherapy; 4) external beam
radiation therapy related to permanent seed implants or HDR
brachytherapy; 5) procedures requiring general anesthesia,
including pediatric external beam radiation; and 6) endoluminal
trachea, bile duct (brachytherapy) radiation therapy.
Suppl. Mem. at 2-4.]
Defendants argue that the preliminary injunction should
not encompass the following procedures: 1) tomotherapy; 2) 4D CT
scans; and 3) SBRT.
Having considered the parties’ evidence and
the arguments of counsel, the Court FINDS that 4D CT scans cannot
reasonably be performed at facilities other than Queen’s and that
similar procedures which are available at other facilities will
not reasonably allow Dr. Lederer to perform the procedures
encompassed by the preliminary injunction.
The Court therefore GRANTS Dr. Lederer’s request for a
preliminary injunction as to Dr. Lederer’s Group Two Patients and
Dr. Lederer’s Group Three Potential Patients to the extent that
those patients require any of the following procedures for the
duration of the preliminary injunction: 1) permanent seed
implants for prostate cancer; 2) HDR brachytherapy for prostate
cancer; 3) volume studies related to permanent seed implants or
HDR brachytherapy; 4) external beam radiation therapy related to
permanent seed implants or HDR brachytherapy; 5) procedures
requiring general anesthesia, including pediatric external beam
radiation; 6) endoluminal trachea, bile duct (brachytherapy)
radiation therapy; and 7) 4D CT scans (“Covered Procedures”).
As to the administrative procedures required to allow
Dr. Lederer to perform the Covered Procedures, after reviewing
the evidence and counsel’s arguments, the Court finds that the
necessary procedures are best left to the parties’ determination.
This Court does not profess to practice medicine or to be in the
business of hospital administration.
Further, both Plaintiffs
and Defendants have consistently affirmed their commitment to the
quality and continuity of patient care.
This Court therefore
ORDERS the parties to meet and confer and to come to an agreement
regarding the procedures necessary to allow Dr. Lederer to
perform the Covered Procedures at Queen’s for the duration of the
As to the duration of the preliminary injunction, the
Court first declines Defendants’ request for a ninety-day
deadline on Dr. Lederer’s acceptance of new patients who he
believes will require one of the Covered Procedures.
deadline would be inconsistent with the analysis of Dr. Lederer’s
entitlement to a preliminary injunction with respect to Count VI.
In the litigation of the instant Motion, Plaintiffs have
represented that they may be able to move some of the procedures
at issue off of Queen’s campus within four months, but that
others may take up to ten months.
This Court therefore ORDERS
Plaintiffs to file a status report regarding their efforts to
secure alternate facilities for the Covered Procedures.
Plaintiffs must file the status report by September 20, 2012.
Defendants may file a responsive status report by September 27,
After the Court reviews the parties’ filings, the Court
will issue an order regarding the termination of the preliminary
injunction order (“Termination Order”).
The instant preliminary
injunction shall remain in effect until the Court issues the
In the event that the parties have a dispute regarding
the scope or enforcement of the preliminary injunction, the
parties may request a status conference to address the matter.
The Court, however, emphasizes that the parties must not request
a status conference until they have met and conferred about the
issue and determined that they cannot resolve the dispute without
Cf. Local Rule LR37.1(a) (“The court will
not entertain any motion . . . , unless counsel have previously
conferred, either in person or by telephone, concerning all
disputed issues, in a good faith effort to limit the disputed
issues and, if possible, eliminate the necessity for a
motion . . . .”).
Finally, although not encompassed within the scope of
the instant Motion, the Court notes that, in the litigation of
the Motion, the parties have reached an agreement that Queen’s
will allow Dr. Lederer, and all the PRO physicians, full access
to the medical records of patients under their care, including
existing databases and spreadsheets, subject to Queen’s existing
procedural and administrative requirements for access to medical
[Defs.’ Suppl. Mem. at 7 & n.2; 3/12/12 Hrg. Trans,
filed 3/14/12 (dkt. no. 60), at 8-9.]
On the basis of the foregoing, Plaintiffs’ motion for
preliminary injunction, filed January 27, 2012, is HEREBY GRANTED
IN PART AND DENIED IN PART.
The Motion is GRANTED insofar as the
Court HEREBY ISSUES a preliminary injunction in favor of
Plaintiff John Lederer, M.D., as to: 1) Dr. Lederer’s patients
for whom Dr. Lederer developed a treatment plan prior to
February 1, 2012 which included one or more of the Covered
Procedures, but who had not begun any of the Covered Procedures
prior to February 1, 2012; and 2) new patients who were referred
after February 1, 2012, and who, in the absence of a preliminary
injunction, Dr. Lederer could not accept as patients pursuant to
Queen’s closed-department policy.
The Court ORDERS Defendants to
allow Dr. Lederer to perform the following procedures at Queen’s
for the duration of the preliminary injunction:
permanent seed implants for prostate cancer;
HDR brachytherapy for prostate cancer;
volume studies related to permanent seed implants or
external beam radiation therapy related to permanent
seed implants or HDR brachytherapy;
procedures requiring general anesthesia, including
pediatric external beam radiation;
endoluminal trachea, bile duct (brachytherapy)
radiation therapy; and
4D CT scans.
The preliminary injunction shall remain in effect until the Court
rules upon the parties’ status reports.
report is due on September 20, 2012, and Defendants’ status
report is due on September 27, 2012.
Plaintiffs’ Motion is DENIED in all other respects.
The Court’s Order Granting in Part and Denying in Part
Plaintiffs’ Motion for a Temporary Restraining Order, filed
February 3, 2012 [dkt. no. 19], is HEREBY DISSOLVED, and has no
effect except to the extent that it provides relevant background
information for the instant Order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 20, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
PACIFIC RADIATION ONCOLOGY, LLC V. THE QUEEN’S MEDICAL CENTER;
CIVIL NO. 12-00064 LEK-KSC; ORDER GRANTING IN PART AND DENYING IN
PART PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
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