Alliance for Patient Safety

                            All that is necessary for the triumph of evil...
                                                                ... is for good men to do nothing.

                                                                                                   Edmund Burke

Retaliation Against Jesse Cole, MD

[From AHLA] January 23, 2009 Vol. VII Issue 3

Montana Supreme Court Upholds Preliminary Injunction Blocking Hospital From Changing Physician’s Medical Staff Status The Montana Supreme Court held recently that a lower court did not abuse its discretion when it granted a physician a preliminary injunction preventing a hospital from taking further adverse action against him and restoring his “active” status as a staff member pending a peer review investigation.

As a member of St. James Healthcare’s medical staff, Dr. Jesse Cole was required to apply for reappointment every two years. In 2006, after Cole submitted his reappointment application, St. James changed Cole’s medical staff status from “active” to “consulting,” citing serious concerns about his professional relationship with other healthcare providers, staff, and patients.

Cole was not given advance notice of his status change and St. James denied his request to appeal the decision. St. James also hired an attorney to conduct an investigation of Cole.

According to Cole, these actions violated St. James’ bylaws, which required a three-month notice before reducing a medical staff member’s privileges and a right to a hearing and an appeal upon request. The bylaws also specified that an investigation of a physician must involve a peer review by the medical staff.

Cole claimed the bylaws were an enforceable contract between the parties that St. James had breached. Cole sought a preliminary injunction against St. James in court to prevent the hospital from taking further adverse action against him and from making a detrimental report to the National Practitioner Data Bank (NPDB). He also asked the court to order St. James to restore his active privileges.

The lower court granted the preliminary injunction and ordered Cole restored to active status. On appeal, the Montana Supreme Court clarified that its review was limited to whether the district court manifestly abused its discretion in granting the injunction, not to decide the substantive merits of the underlying lawsuit.

Applying substantial deference, the high court held the district court did not abuse its discretion in finding that it appeared St. James may have breached the bylaws thus entitling Cole to relief. St. James did not challenge these findings, the high court observed.

The high court also upheld the district court’s conclusion that there was a likelihood of irreparable injury given the substantial risk that St. James would issue an adverse report to the NPDB.

Because a preliminary injunction is intended to restore the status quo, the high court found the lower court properly ordered Cole’s reinstatement to active staff member status and prohibited St. James from adopting the recommendation of the challenged attorney investigation or from taking any adverse action on Cole’s application.

In doing so, the lower court protected Cole’s patients and his professional reputation at minimal cost to St. James, according to the high court.

A dissenting opinion argued that contrary to Montana case law, the majority reached the merits when deciding the preliminary injunction.

The dissent also agreed with St. James that the district court looked to the wrong provisions of the bylaws in determining what procedures were required following the denial of Cole’s reappointment application. The lower court’s findings, the dissent said, were based on the incorrect bylaw provisions thus resulting in an abuse of discretion.

Cole v. St. James Healthcare, 2008 MT 453 (Mont. Dec. 30, 2008).

Read AAPS Amicus Brief in Support of Dr. Cole.