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Kiester v. Humana Hospital Alaska et al (12/24/92), 843 P 2d 1219
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Notice: This is subject to formal correction
before publication in the Pacific Reporter.
Readers are requested to bring typographical
or other formal errors to the attention of
the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order
that corrections may be made prior to
permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
W. SCOTT KIESTER, )
) Supreme Court File No. S-4361
Appellant, ) Superior Court File No.
) 3AN-88-4638 Civil
v. )
)
HUMANA HOSPITAL ALASKA, INC., ) O P I N I O N
a Delaware Corporation; )
DAVID M. DIETZ, M.D., JOHN )
SNYDER, M.D., DAVID D. )
ANDERSON, M.D., PATRICK M. )
NOLAN, D.O., ROLAND E. GOWER, )
M.D., and PETER D. MARBARGER, )
M.D., )
)
Appellees. ) [No. 3908 - December 24, 1992]
)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage,
Karen L. Hunt, Judge.
Appearances: John J. Eufemio, Law
Office of John J. Eufemio, Kodiak, for
Appellant. Sanford M. Gibbs, Hagans, Brown,
Gibbs & Moran, Anchorage, for Appellees.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton and Moore, Justices.
COMPTON, Justice.
W. Scott Kiester contends that he is entitled to
damages resulting from the allegedly wrongful denial of
his application for surgical privileges by Humana
Hospital Alaska, Inc. (Humana). According to Kiester,
Humana failed to follow its bylaws in denying Kiester's
application, thereby violating his right to due process
of law. The superior court dismissed Kiester's claims
on Humana's motion for summary judgment. We reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
In December 1984 Kiester applied for medical and
surgical privileges at Humana. Humana's Medical Staff
Bylaws (bylaws) set forth detailed procedures which an
applicant and Humana are to follow in the review of an
application for privileges. As part of his
application, Kiester acknowledged receipt of the
bylaws.
Dr. Roland Gower, Chief of Staff of Humana, interviewed
Kiester on January 11, 1985, at the request of the
Chairman of the Department of Surgery. In the
interview, Dr. Gower questioned Kiester about his past
surgical experience. He also asked Kiester a variety
of questions regarding "surgical indication and
treatment." Dr. Gower's memorandum, which apparently
is a fair synopsis of Dr. Gower's questions and
Kiester's responses, indicates that the following
discussion took place at the end of the interview:
The applicant inquired of me as to what
my opinion was. I told him I thought his
fund of knowledge was lacking and that I was
very concerned about the fact that he had
practiced at many different places over the
last 25 years and that these reasons for
moving on from his practice would have to be
checked out. For these reasons I told him
that for the time being I would not recommend
to Dr. Lehman that he be given temporary
surgical privileges, however, I did say that
I would recommend to Dr. Lehman to get a
second opinion from another general surgeon.
The memorandum does not indicate in what respects Kiester's
responses were inadequate or incorrect, or his "fund of
knowledge . . . lacking."
In April 1985 Dr. Thomas Harrison recommended that
Kiester be granted "temporary medical staff privileges
until a formal review [could] be made by the
Credentials Committee." This recommendation was
approved. Kiester disputes the nature and duration of
the privileges granted, contending that Dr. Harrison
granted him "associate membership" for a one year
period.
On June 18 Dr. Peter D. Marbarger, the "second opinion
. . . general surgeon,"interviewed Kiester. Dr.
Marbarger also assisted as Kiester performed surgical
procedures at Humana. In a letter to the Credentials
Committee dated October 27, Dr. Marbarger stated in
part:
We had a rather lengthy discussion and,
without trying to sound presumptuous, I
believe the interview was rather similar to
an oral board exam. We discussed several
hypothetical situations as well as many
specific patient presentations. I am
suspicious of both the depth and breadth of
his surgical knowledge. Specifically, I
believe he would have failed if this had been
an actual oral board exam. He does have
moderate technical ability operatively but I
question his judgment.
Again, the letter does not indicate in what respects
Dr. Kiester's responses were inadequate or incorrect,
or the "depth and breadth of his surgical knowledge"
suspicious.
In November Humana's Credentials Committee recommended
that Kiester's application for surgical privileges be
denied. In December the Executive Committee notified
Kiester of the denial of privileges.
Kiester appealed the denial and an Ad Hoc Committee
convened to review the decision in January 1986.1
During the lengthy hearing, committee members asked
Kiester detailed questions regarding surgical treatment
required for various medical problems. The Ad Hoc
Committee affirmed the denial of privileges.
Kiester appealed again. Humana's governing body
appointed an Appellate Review Committee (ARC), which
convened in April. The ARC affirmed the denial of
privileges.
In April 1988 Kiester filed a complaint in superior
court, alleging that in rejecting his application
Humana had violated its bylaws and his rights to due
process of law under the Alaska Constitution. Kiester
also alleged harm to his reputation as well as
conspiracy and violation of anti-trust laws.
Superior Court Judge Karen L. Hunt granted Humana
partial summary judgment dismissing all but two of
Kiester's claims. Judge Hunt found that issues of
material fact remained with regard to Kiester's anti-
trust claims. Judge Hunt also found that the ARC had
failed to make a determination of whether the Executive
Committee's decision to deny privileges was arbitrary
and capricious, thereby violating Article VIII, Section
6(f) of the bylaws. A partial remand was ordered.
On remand a second ARC reviewed the record, made
specific findings and, citing the letters of Drs. Gower
and Marbarger as well as the conclusions of the Ad Hoc
Committee, determined that the Executive Committee's
denial of Kiester's application was not arbitrary and
capricious. The case returned to superior court and on
cross motions for summary judgment, Judge Hunt
dismissed all of Kiester's claims.
This appeal followed. Kiester contends generally that
in denying his application, Humana violated its bylaws
and his right to due process of law. Kiester does not
ask that Humana be directed to reconsider his
application and grant him privileges. Rather, he
contends that he is entitled to damages because of
Humana's wrongful denial of his application.
II. STANDARD OF REVIEW
"When reviewing a grant of summary judgment, this court
must determine whether there is a genuine issue of
material fact and whether the moving party is entitled
to judgment on the law applicable to the established
facts. All reasonable inferences of fact from
proffered materials must be drawn against the moving
party . . . and in favor of the non moving party . . .
." Sea Lion Corp. v. Air Logistics of Alaska, 787 P.2d
109, 116 (Alaska 1990) (citations omitted).
III. ALLEGED VIOLATIONS OF HOSPITAL BYLAWS AND
KIESTER'S RIGHT TO DUE PROCESS OF LAW
As we consider Kiester's diverse arguments, a common
theme appears. Kiester believes that a physician who
submits an application for hospital privileges stands
in need of great protection from the courts, because of
the better bargaining position of the hospital.
Kiester argues that courts must vigorously enforce
hospital bylaws and ensure that applications are fairly
considered so that applicants are not denied privileges
based on arbitrary or discriminatory considerations.
Before turning to Kiester's specific concerns, we must
address the role of courts in reviewing a hospital's
decision to deny an application for hospital
privileges.
A. Judicial review of hospital privileges
applications.
Courts are in general agreement that the decisions of a
hospital governing body regarding applications for
hospital privileges are to be accorded great deference,
and that judicial review should be limited to factors
which are within the expertise of courts. See, e.g.,
Laje v. R. E. Thomason Gen. Hosp., 564 F.2d 1159, 1162
(5th Cir. 1977), cert. denied, 437 U.S. 905 (1978).
We have recognized that it is not within the expertise
of courts to determine whether a physician has the
medical training and experience to qualify for
membership on a hospital staff or to qualify for
specific medical or surgical privileges:
Courts have recognized that the
evaluation of the medical qualifications of
physicians is a factual determination
properly committed to the expert judgment of
the hospital authorities:
No court should
substitute its evaluation of such
matters for that of the Hospital
Board. . . . The evaluation of
professional proficiency of doctors
is best left to the specialized
expertise of their peers, subject
only to limited judicial
surveillance.
Eidelson v. Archer, 645 P.2d 171, 177 (Alaska 1982) (omission in
original) (quoting Sosa v. Bd. of Managers of the Val
Verde Mem. Hosp., 437 F.2d 173, 177 (5th Cir. 1971)).
However, courts are equipped to determine whether a
hospital governing body has followed its bylaws and
whether a decision regarding an application for
privileges was made in accordance with basic principles
of fairness and due process of law.2 Courts may
"require that the procedures employed by the hospital
are fair, that the standards set by the hospital are
reasonable, and that they have been applied without
arbitrariness and capriciousness." Laje, 564 F.2d at
1162. This type of limited review does not intrude
upon a hospital's recognized expertise regarding
evaluation of medical qualifications, yet it affords
protection to an applicant against arbitrary denial of
privileges in violation of an applicant's rights to
substantive and procedural due process of law.
B. Denial of privileges based on a
subjective process.
Kiester challenges virtually every step of the process
through which Humana evaluated his application for
privileges.3 Kiester contends that he was never given
notice of the "charges"against him so he could prepare
for the hearing before the Ad Hoc Committee. He also
argues that the Ad Hoc Committee did not conduct its
hearing according to the bylaws and that the committee
instead subjected him to an unprecedented prolonged
oral examination. Kiester contends that the bylaws do
not provide for oral examinations and that such
examinations are unsound because of their subjective
nature. He claims that Humana had no criteria
regarding questions that would be asked in the
examination and also had no criteria regarding the
answers. Finally, he claims that he was denied due
process of law and was arbitrarily denied privileges
because Humana did not consider evidence Kiester
assembled which, in his opinion, demonstrated that he
correctly answered the questions and passed the
examination.
Humana's bylaws provide for a hearing and appellate
review of a decision to deny an application for
clinical privileges. Medical Staff Bylaws Article
VIII. Regarding notice of the hearing, the bylaws
provide as follows:
The notice of hearing shall state in
concise language the acts or omissions with
which the practitioner is charged, a list of
specific or representative charts being
questioned, and/or the other reasons or
subject matter considered in making the
adverse recommendation or decision.
Medical Staff Bylaws Article VIII, Section 3(b).
On December 27, 1985, Humana's Executive Director sent
a letter to Kiester which stated in part:
As per our bylaws, page 4, section 2a.
only physicians and dentists currently
licensed to practice in the State of Alaska
who can document their background,
experience, training and demonstrated
competence shall be qualified for membership
on the medical staff. I would like to
further add that there are no particular
charges against you, as per your request of
the same.
This language gave Kiester notice that the rejection of
his application was not based on charges of misconduct
or malpractice.4 Moreover, the letter put Kiester on
notice that he had not satisfied his burden of
producing adequate information and resolving doubts
about his qualifications for surgical privileges.5
However, in a more fundamental sense, Humana did not
give Kiester notice of the reason his application was
denied. There is nothing in that letter, or other
prior letters, memoranda or transcripts, which
identifies the bases for the implicit conclusion that
Kiester's "background, experience, training and
demonstrated competence"were lacking. Although the
focus of the denial apparently was on Dr. Kiester's
"training and education," and presumably also
"demonstrated competence,"no specific deficiencies in
training or education were noted by Humana. Further,
despite the admittedly examination-like nature of
interviews with individual doctors and the Ad Hoc
Committee, Humana did not provide Kiester with notice
of how he had failed to carry his burden of
demonstrating competence. Yet the record does
demonstrate that it was answers to these questions
which were unsatisfactory for some unidentified reason
or reasons.
We recognize that the governing body of a hospital must
be given great latitude in establishing standards which
an applicant must meet before privileges will be
granted. See Sosa, 437 F.2d at 176. We also recognize
that it may be difficult for a hospital to establish
criteria which may be applied objectively in evaluating
whether an applicant has met the standards for every
conceivable medical or surgical privilege. See Ritter
v. Bd. of Comm'rs of Adams County Public Hosp. Dist.
No. 1, 637 P.2d 940, 947-48 (Wash. 1981); Sosa, 437
F.2d at 176.
However, basic principles of due process of law require
that criteria established for granting or denying
privileges not be vague and ambiguous, and that as
established, they be applied objectively. See Williams
v. Kleaveland, 534 F.Supp 912, 917 (W.D. Mich. 1981)
(holding that rules established by hospitals to
regulate the conduct of doctors must be capable of
objective application); Miller v. Eisenhower Medical
Ctr, 614 P.2d 258, 265 (Cal. 1980) (finding that rules
governing the admission of physicians cannot stand if
the standard is unreasonably susceptible of arbitrary
or discriminatory application); Martino v. Concord
Community Hosp. Dist., 43 Cal. Rptr. 255, 260 (Cal.
App. 1965) (stating a hospital must set up standards
which are clear, not vague, ambiguous or uncertain);
Wyatt v. Tahoe Forest Hosp., 345 P.2d 93, 97 (Cal.
Dist. App. 1959) (noting that the standard set up was
so vague and uncertain "that admission to the staff can
depend on the whim and caprice of the directors").
Furthermore, basic principles of due process of law
require that when a hospital denies an application for
privileges, it notifies the applicant of the specific
criteria which were determinative in the denial and how
the applicant failed to meet the hospital's
expectations with regard to the criteria.
Fundamental fairness dictates that
the hospital apprise the physician of the
specific charges and that the applicant be
afforded the opportunity to appear and
present witnesses and material in support of
his position and to contradict or explain the
bases asserted for the proposed denial. Such
hearings in addition to affording the doctor
an opportunity to respond to charges enable a
hospital to make "an intelligent and
reasonable judgment in good faith upon all
the facts presented."
Garrow v. Elizabeth General Hosp. & Dispensary, 401 A.2d 533, 541
(N.J. 1979) (citations omitted) (quoting Sussman v.
Overlook Hosp. Ass'n, 23 A.2d 389, 393 (N.J. Super.
App. Div. 1967)). Based on our review of the record,
we conclude that Humana has not satisfied these basic
requirements of due process of law.
Humana based its decision in large part on the adverse
letters of Doctors Gower and Marbarger and on the
adverse recommendation of the Ad Hoc Committee. These
negative evaluations were based in turn on oral
evaluations of Kiester's medical competence. These
evaluations concluded in general terms that Kiester
lacked sufficient medical knowledge to be granted
surgical privileges.
While the evaluations articulate conclusions that
Kiester lacked sufficient knowledge, none of the
evaluations establish the level of knowledge which
would be of "sufficient adequacy"6 or the criteria used
to evaluate sufficiency. There are references to
instances where the evaluator felt Kiester's approach
to a specific medical problem was not in accordance
with unspecified current medical literature. However,
the notice to Kiester does not indicate which questions
Kiester answered correctly and which he answered
inadequately or incorrectly, nor does it attempt to
quantify in any way the extent to which an applicant
must answer in a satisfactory manner in order to meet
standards of training and education or demonstrated
competence. Absent such notice, it is impossible for
any reviewing body to objectively and independently
determine if an applicant has established "competence."
Further, there is little record of the questions and
answers exchanged between Kiester and Dr. Marbarger.
In the absence of such a record, it would seem
impossible for an appellate panel of medical experts to
make an independent evaluation of Kiester's responses
to those questions.
It is possible that the evaluators had in mind criteria
for measurement of an applicant's qualification which
would satisfy the requirements of due process.
However, we cannot find an articulation of such
criteria in the record. In the absence of specific
charges indicating in what respect Kiester's
information was not adequate, there is no evidence of
criteria for evaluation of medical qualifications. We
conclude that Humana did not afford Kiester the
consideration required by basic principles of due
process of law.
We do not mean to imply that a hospital may not utilize
an oral inquiry into the qualifications of an applicant
for medical or surgical privileges. The bylaws provide
that by "applying for appointment to the medical staff,
each applicant thereby signifies his/her willingness to
appear for interviews in regard to his/her
application." Medical Staff Bylaws Article V, Section
1(b). Moreover, the bylaws authorize the Ad Hoc
Committee to consider "[a]ny relevant matter upon which
responsible persons customarily rely in the conduct of
serious affairs." Article VIII, Section 5(g).
Therefore, we do not say that an oral examination may
not be administered. However, if the results of an
oral examination provide the basis for a denial of an
application for privileges, the hospital must establish
criteria for determining whether an applicant has
passed the examination and must establish a process
whereby the applicant may challenge the conduct of the
examination and the hospital's evaluation of the
answers given.
It follows from our discussion that we must conclude
that Kiester was also denied due process of law when
Humana's second ARC declined to review Kiester's
evidence, which he claimed would show that he correctly
answered most of the questions asked by the Ad Hoc
Committee. When Kiester attempted to introduce this
evidence, the committee chair refused it saying:
I think the appropriate [matter for
consideration] is whether the quiz, the
interview, the whole process was correct, not
what the questions were and what the answers
were. The answers to the questions have to
be viewed by the medical staff. I think
whether the process was correct is what we
should be looking at.
In our view, Humana had an obligation at some point in
the process to review Kiester's claim and the evidence
he offered to prove that he had correctly answered the
questions given during the Ad Hoc Committee's oral
examination.7 Due process requires that a "physician
must be provided every reasonable means and opportunity
to show that the grounds specified for the denial of
the application are either inadequate or baseless, or
to refute the charges upon which revocation or denial
of [privileges] is based." Silver v. Queen's Hosp.,
629 P.2d 1116, 1124 (Haw. 1981); Sosa, 437 F.2d at 177
("[P]rocedural due process must be afforded the
applicant so that he may explain or show to be untrue
those matters which might lead the board to reject his
application.").
IV. ALLEGED REVOCATION OF ASSOCIATE PRIVILEGES.
Kiester contends that Humana granted him "associate
membership"for a one year term. He argues that Humana
summarily and arbitrarily revoked his membership
privileges in October 1985 in violation of numerous but
unspecified provisions in Article VIII of the bylaws.8
Kiester's contentions that he was granted a one year
associate membership at Humana arise out of an unsigned9
memorandum to Kiester's file from Dr. Thomas J.
Harrison. Dr. Harrison acted as temporary Chairman of
the Department of Surgery at Humana during 1985. The
memorandum refers to an April 26, 1985 interview with
Kiester and notes that Dr. Harrison reviewed Kiester's
file, consulted with two Anchorage surgeons and
reviewed Dr. Gower's negative opinion of Kiester. Dr.
Harrison concluded as follows:
After due consideration I feel that Dr.
Kiester sufficiently answered the questions I
had concerning his temporary medical staff
privileges. I suggested to Dr. Kiester for
his year of Associate Membership that he is
under probation in that he must have a Board
Certified surgeon assist him on all cases.
Also on April 26, 1985, in a signed and dated
memorandum, Dr. Harrison indicated that he found
Kiester's application and credentials in order and
recommended "that he be granted temporary medical staff
privileges until a formal review can be made by the
Credentials Committee." Dr. Harrison's second
memorandum indicates approval of his recommendation on
April 29 by Dr. Gower, President, Medical Staff, and on
April 30 by Mary D. Willis, Executive Director. A
notice to hospital personal indicated that Kiester's
temporary privileges were effective through August 30,
1985.
Humana is correct in its argument that Dr. Harrison had
no authority by himself to grant privileges.10 Further,
even construing Dr. Harrison's memoranda in the light
most favorable to Kiester, they show that Humana
granted Kiester "temporary privileges,"not "associate
membership." While Dr. Harrison's unsigned memorandum
contains language regarding both temporary privileges
and associate membership, the memorandum cannot be
construed as a grant of privileges. Rather, the grant
of privileges took place with the signatures of Dr.
Gower and Ms. Willis approving Dr. Harrison's
recommendation. Medical Staff Bylaws Article III,
Section 3(a).
We conclude that Humana granted Kiester only "temporary
privileges"which automatically expired after 120 days
on August 30, 1985, in accordance with Article VI,
Section 2(a) of the bylaws.11 Therefore, his argument
that his "associate membership" was wrongfully
terminated in October 1985 is without merit.
VI. KIESTER'S CLAIM FOR DAMAGES
Kiester contends that he had a "property right"to have
his application reviewed and his privileges granted and
that because of the defective first appellate review
hearing he is entitled to damages under McMillan v.
Anchorage Community Hospital, 646 P.2d 857 (Alaska
1982).
The facts in McMillan are distinguishable from the
facts of this case. McMillan involved a physician who
had received staff privileges. Id. McMillan's staff
privileges were summarily suspended and he sued
claiming breach of contract and a violation of his due
process rights. Id. We found that while McMillan's
summary suspension was not justified under the bylaws,
facts adduced at a later hearing were sufficient to
justify a post-hearing suspension. Id. at 866-67. We
found reinstatement unnecessary but remanded for
determination of damages measured "from the date of the
summary suspension up to the proper suspension
following the second hearing." Id. at 867. Kiester's
situation is unlike Dr. McMillan's because he never was
granted surgical privileges, except for "temporary
privileges"which expired automatically.
Kiester has offered no legal authority for the
proposition that he had a "property right"to have his
application reviewed and his privileges granted.
Because of a lack of briefing, we decline to answer the
question whether in this context a denial of due
process of law, by itself, entitles an applicant to
damages.12
REVERSED and REMANDED for further proceedings including
a remand to Humana's governing body for consideration
of Kiester's claim that he correctly answered the
questions of the Ad Hoc Committee.
_______________________________
1. Article VIII, Section 1(a) of the Medical Staff Bylaws
provides in part:
When any practitioner receives notice of
a recommendation of the Executive Committee
that, if ratified by decision of the
governing body, will adversely affect his/her
appointment to or status as a member of the
medical staff, or his/her exercise of
clinical privileges, he/she shall be entitled
to a hearing before an ad hoc committee of
the medical staff.
2. Courts have often distinguished between public and
private hospitals in articulating the nature of
judicial review. See Sheree L. McCall, A Hospital's
Liability for Denying, Suspending and Granting Staff
Privileges, 32 Baylor L. Rev. 175, 175-190 (1980). In
Stores v. Lutheran Hospitals and Homes Society of
America, Inc., 609 P.2d 24, 28 (Alaska 1980), we held
that a privately owned hospital was subject to
constitutional due process standards as a "quasi
public" hospital because it was the only hospital
serving the community and because it was significantly
funded by government sources. We need not determine in
this case whether Humana is quasi public as Humana does
not argue that Kiester is not entitled to due process
of law. We note a growing trend which affords judicial
review to ensure that no hospital, whether public or
private, establishes rules governing admission which
permit exclusion on an arbitrary or irrational basis,
or which are unreasonably susceptible to arbitrary or
discriminatory application. See, e.g., Miller v.
Eisenhower Medical Ctr., 614 P.2d 258, 265 (Cal. 1980).
3. Kiester also advances several arguments relating to the
initial review of his application by Humana's
Credentials Committee. We conclude that these
arguments lack merit.
Specifically, Kiester argues a) that the hospital did
not act upon his application within 60 days as required
by Article V, Section 2(a); b) that there was no review
of his application by the head of the department of
surgery as required by Article V, Section 1(f); c) that
Humana improperly relied on Dr. Gower's letter in
denying privileges and that the letter was ambiguous
and without objective foundation; d) that the
Credentials Committee did not make a written report as
required by Article V, Section 2(a); and e) that the
Credentials Committee was not impartial because Dr.
Gower was a member.
Article V, Section 2(a) of the bylaws require the
Credentials Committee to make a written report to the
Executive Committee "[w]ithin sixty (60) days after
receipt of the completed application for membership."
The parties dispute when Kiester's application was
complete. Humana asserts that Kiester delayed
submitting required references. Kiester does not
respond to the claim that his application was
incomplete. Moreover, he does not cite to any part of
the record in support of his argument that the
committee's report was late.
Because Kiester has not demonstrated from the record
that his application was complete, we find no merit in
his argument that the report of the Credentials
Committee was late. Moreover, even if we were to
assume that the report were late, Kiester has made no
attempt to show how this delay harmed him.
Article V, Section 1(f) provides that "[t]he completed
application . . . shall be transmitted to the
appropriate department chairperson for review and
recommendations prior to submission to the Credentials
Committee." Kiester argues that he was denied due
process because there is no record that Dr. Lehman, who
chaired the Department of Surgery, reviewed or made
recommendations regarding Kiester's application.
Humana contends and Kiester admits that Lehman
delegated his responsibility to Dr. Gower.
Kiester does not answer Humana's argument that this
issue was raised for the first time on appeal.
Therefore, we decline to address the argument.
Interior Credit Bureau, Inc. v. Bussing, 559 P.2d 104,
105 n.2 (Alaska 1977).
Kiester's argument that the Credentials Committee
violated Article V, Section 2(a) of the bylaws is not
persuasive. Article V, Section 2(a) requires a written
report from the Credentials Committee to the Executive
Committee. A brief entry in the minutes of the
November 12, 1985, Credentials Committee meeting,
records the review and denial of Kiester's application.
In making its decision, the committee considered
"various interviews"and a "letter from Dr. Marbarger."
A memorandum regarding this decision was received by
the Executive Committee in a January 22, 1986 meeting.
Although this is not a detailed written report, it is
not so inadequate as to provide a basis for overturning
the hospital's decision.
Humana claims that Kiester's argument alleging bias on
the part of the Credentials Committee was raised for
the first time on appeal. Kiester does not respond.
Therefore, we decline to address the issue. Id.
4. Throughout his brief, Kiester appears to argue that a
hospital may not deny an application for privileges
absent evidence of actual error by a doctor which
causes harm to a patient. This argument is without
merit. In accordance with its public responsibility to
provide a high standard of medical care, Humana has not
only the power, but also the duty to deny privileges
where it is not satisfied that a doctor meets
appropriate standards of medical or surgical
competence. Medical Staff Bylaws Article III, Section
2(a); Article V, Section 1(f).
5. The relevant bylaw provided that the "applicant shall
have the burden of producing adequate information for a
proper evaluation of his/her competence, character,
ethics, and other qualifications, and for resolving any
doubts about such qualifications." Medical Staff
Bylaws Article V, section 1(e).
6. Article III, Section 2(a) of the Medical Staff Bylaws
provides in part:
Only physicians and dentists currently
licensed to practice in the State of Alaska,
who can document their background,
experience, training and demonstrated
competence, their adherence to the ethics of
their profession, their good reputation,
character, their mental and emotional
stability, and their ability to work
harmoniously with others, with sufficient
adequacy to assure the medical staff and the
governing body that any patient treated by
them in the hospital will be given a high
quality of medical care, shall be qualified
for membership on the medical staff.
7. If the members of the second ARC lacked the expertise
to evaluate Kiester's claim, the matter should have
been referred to a body which had such expertise.
8. We note that this failure to link specific facts and
specific relevant legal authority typifies Kiester's
approach in advocating his claims before this court.
This type of argument does not assist the appellate
review process. Appellate briefs should be crafted to
serve their primary purpose "which is to bring together
the relevant facts and law in a clear and concise
manner so that the court is fully informed." Dickerson
v. Geiermann, 368 P.2d 217, 218 (Alaska 1962).
9. A notation on the memorandum indicates that Dr.
Harrison had not read the finished memorandum which was
apparently prepared at his direction.
10. Article III, Section 3(a) of the hospital bylaws provide
as follows:
Initial appointments and reappointments
to the medical staff shall be made by the
governing body. The governing body shall act
on appointments, reappointments or revocation
of appointments usually only after there has
been a recommendation from the medical staff
as provided in these Bylaws. . . .
. . . .
Appointment to the medical staff shall
confer on the appointee only such clinical
privileges as have been granted by the
governing body, in accordance with these
Bylaws.
The bylaws define "governing body"to mean the Board of
Trustees of the hospital.
11. Article VI, Section 2(a) of the bylaws provide that
Humana may "grant temporary admitting and clinical
privileges to the applicant for a period of one hundred
twenty (120) days; but in exercising such privileges,
the applicant shall act under the supervision of the
chairperson of the department to which he/she is
assigned."
12. Our conclusion that Kiester was denied due process of
law does not necessarily mean that Humana could not
have justifiably denied Kiester's application for
privileges.
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