reversal of the trial court's decision to grant a rule twelve b six motion to dismiss which dismissed doctors a mania and procedural due process claims against east jefferson general hospital every doubt is resolved in favor of the complainant the factual looked in the light most favorable to the complainant at this stage of the proceedings the court's aware that the touchstone of procedural due process is the protection of the individual requires them to provide sick would suggest suggest i think i made the analogy in the reply brief that this is essentially looking at a higher in baseball who's calling balls and strikes  a or perhaps a gymnastics or an ice skating judge and they're made they're making their rulings everyone is presumed that they're doing that based on an agreed upon strike zone or criteria that are are being adjudged if for some reason that fire has his own strike zone that's never communicated to them to the players that's improper that's and that's unfair in the sense of that's what we're arguing happened here is that east jefferson had its processes but they failed to follow them  didn't look at the evidence and apply them to their procedures the there's two cases out of this court that i think that have been pretty brief to the first as i believe is how it's pronounced was a versus thompson services hospital and then davis versus west community hospital that provides that hospital staffing decisions require follow up require the following to provide minimal due process to  for staffing decisions the first is that the procedures the hospital must be fair the next is that the standards by the hospital must be reasonable and the third which is what we've addressed here what we're complaining about here is that the hospital must not act hospital are very clear what governs a summary suspension and i just read it directly it says that a summary suspension is only provided when a media action is required to protect the life or wellbeing of a patient or to reduce a substantial and imminent likelihood of significant impairment of life health safety of a patient or person so a summary suspension the chief of staff can say hey you're suspended leave the premises and it will will will deal with this later but somebody is going to get hurt and that's what happened here on october sixth two thousand and thirteen and it was over five years ago this is dragged on but what happened is on that it was a saturday morning a patient doctors i mean as a cardiologist he treats patients throughout the the metropolitan area there was a man that was in the plus area who went to the hospital there they hospital the attending physician in the e r called doctors in maine and said that if if we're going to need to do an intervention or procedure how would you like to handle those doctors are many and said i have backup physician to assist me since i'm not there is dr ross on weight and again we need to stick strictly to what is planted in your multi multi multi pac based amended complaint but it was understood it doctors a mania could not do whatever the procedure was not permitted to do whatever procedure with being too generous to that hospital that he did not have privileges to do that did not happen well you just told us something different there was asked if the procedure was required then who was to provide who was to do it right doctors of mania had admitting privileges so he could admit a client to the hospital yes in fact the interventional procedure was required he had he had a physician lined up to back him up and i apologize you're correct your honor i did misstate that well when you say backed him up you're suggesting doctor the plaintiff could have done the procedure beyond just want you to stick to the right he could not there's no dispute he was not allowed to do intervention procedures at that time but in he had to have someone there to do them and that's true dr ross and was that part of the conversation with the attending in the e cardiologist the one who's there and you are would see the patient and provide any intervention or procedures that are necessary but for reasons related outside of this issue that o staff cardiologist refused to see this patient because his practice had a policy that they would not see doctors and maintenance patients none of this was ever communicated to doctors in mania at some point he finally did learn that his doc that dr austin had not shown up in doctors many and headed immediately to the hospital and just so it's clear i don't know that it destroys the patient never needed the interventional procedure and survived and there was no issues with the treatment that was provided so whenever doctors many and found out that his patient had not been seen by their own staff cardiologist which is against procedures he was understandably upset and he reached out to the chief of staff to ask why is my patient not being seen by their own staff cardiologist this was a saturday morning this chief of staff was out of the hospital as well and that i think there was some misunderstandings quite frankly he interpreted doctors and manias complaint to be that he was the doctors many was asking the chief of staff to order that on staff forty dollars to treat his patient but that's not what doctors in many was asked and he was already in the hospital at that time and seeing his patient and and so what happened was the chief of staff did in fact order their own staff cardiologist to treat this individual who had been moved to the critical care unit at this point and there began to be further confusion because doctors remaining was there treating his patients and he was giving his orders to the staff and then the own staff cardiologist was also treating the patient as he had been ordered to do by the chief of staff without any knowledge from doctors or many because you never requested that so the the staff in the hospital the nursing staff reaches out to the chief of staff saying hey we're getting conflicting information how what am i supposed to do this what are we supposed to do the chief of staff who had interpreted doctors or many complaints about the cardiologist gets frustrated with doctors and money and what is he doing he was asking me to order the cardiologist to to do this treatment and now he's here so he tells this nurse that he's going to summarily suspend actors a mania and for them not to take his orders but the chief of staff never communicates this to doctors in many so over the course of that day the chief of staff does come into the hospital there's he orders that doctors in maine is suspended but he does going to be arrested so doctors are many and leaders there's no real discussion about trying to clear up that confusion that day and there's no dispute that what happens after that some of summary suspension that  goes before the medical executive committee they affirm the summary suspension then it goes before the medical appropriateness standard of care committee they also approved a summary suspension it goes in front of the peer review a fair panel process three full hearings it was evenings with with other physicians that the fair of you are the fair panel process up held the summary suspension and the doctors and then also filed an appeal with the board of directors which also affirmed the summary suspension at the end of the day we have a decision from the fair panel hearing that's up holding the summary suspension but the problem begins and is that the the panel states in its written opinion that this matter can be distilled to the following three issues one whether doctor response was appropriate at the time of patient arrival to whether doctors are many and was disruptive in the emergency room and three whether doctors are many and was disruptive in the critical c i think given that this is an a a twelve b six motion to dismiss that all allegations pled must be considered in the light most favorable to the complainant and resolved in his favor i think it's plain and this is what is outlined in our  first review they didn't review any medical records they didn't have doctors or made inside of films they did they didn't even look at what the standard as to what they were looking at a plot the same a same cursory review with a  and the same with the fair panel so what we're complaining about here is that the decision to up hold the summary suspension in order to be so forward due process and not be arbitrary and capricious it has to be supported by the evidence that was presented to the panel and we outlined a multitude of issues that supports plainly that the decision was arbitrary and capricious and not supported by the evidence that was produced not only by doctors in maine and but by the to their own call cardiologist when that first phone call was made that was never done the chief of staff himself admitted that at the fairview hearing that that was never done that the up hole the decision that the chief of staff was behavior so how can you up hold there they suggest that dr z wanted an emergency angiogram for this patient and that that was improper but there was the record shows that to the treating physician in the e r and had a plan of care for the patient to be attended to as soon as he heard that that discussion did not was not followed through he was immediately at the hospital the evidence does not support the decision that he abandoned his patient the fair panel review completely disregarded the entirety of doctors the maintenance testimony they say they disregard it for no reason he had he wrote two letters to the panel in to the chief of staff this is testimony was corroborated what those previous letters had and the same thing with the patient son the one person who would have been an impartial observer to the dispute going on in the hospital and they discount his testimony because it was a motion want to happened i think eighteen months before but he himself had given an affidavit and there's nothing to suggest that his testimony was unreliable in in short the hospital failed to apply the in quotes afforded doctors the mania and the appearance of due process and quote this is a clear admission that the procedures that were spelled out in the hospital's bylaws satisfied the constitutional requirements for due  process he said the appearance of due process well provided process that marte of appeared to be appropriate but really wasn't that's what that sentence and what they can say what they can say you shouldn't do i'm not going to waste time on a that's right you were me what they first hurdle he's got to overcome is he's got to overcome the presumption that the decision makers acted honestly and with integrity he doesn't do that in this case the best he can do is an allegation in the complaint that  you to the point said in the cane case the state has no constitutional duty to provide a procedural regimen that guarantees faultless decisionmaking the state's interest in safety and efficiency find expression that tolerable level of risk and just as dr kane contended that he was a victim of partisan decision making because his business competitors were part of this decision making b six dismissal that all of the facts are can be construed in the light favorable to talk up i think under twelve b six you're right all of the facts do have to be considered  factual have allegations have to be considered it means just that all of the factual allegations have to be considered and while the complaint does have to be construed liberally in favor of the plaintiff the court's required to consider all factual allegations including those that cut against the plaintiff there was a case that cited in the brief and i'm the name escapes me at the moment but what happened was the plaintiff pled facts he lost on twelve b six because the facts he into a statute of limitations issue the court said he pled those facts the statute of limitations defense was apparent on the face of the complaint he loses in this case one of the big problems th here has is that he put so he planned facts that basically provide a basis for the decision against him the earth you know when you get into the terms of the precious there's a lot of cases that define him reed versus state form of the louisiana supreme court case which set an arbitrary act as an act based on random choice or personal whim a texas hospital was challenging a rule that was promulgated in a medicare manual and the question was whether or not this hospital qualified as a critical care hospital for special medicare reimbursement under the rule reimbursement program and the issue was was the c m s is definition of primary and secondary roads reasonable or not agencies resistance and policy choices conform to minimal standards of rationality then its actions are reasonable and must be upheld and so in addition to dealing with the honesty and integrity presumption the plaintiff has the burn to show that the decision that he's questioning before this school what does not conform to minimal standards of rationality and when we get into his case he makes a number of revoked to cement his privileges to perform kodiak interventional privileges shows his had a prior issue dealing with loss of privileges paragraph fourteen doctors the mania is a strong willed and principled physician who has not hesitated to question and minister to practice and at the time and sixteen at the time of the incident that eventually resulted in this litigation doctors remaining was challenging the suspension of his interventional privileges again he's got a history paragraph he admits that after reviewing his paragraph thirty one states after reviewing the results of tests ordered by the emergency room doctor in order an additional test of his own doctors of any and contacted the e j d h as chief of staff and complained about the lon paragraph thirty two that communication resulted in a series of miscommunications and misunderstandings that directly resulted in plenty of hospital privileges that e j been unjustifiably and summarily suspended this is an admission that the plain instructions in escalating the incident to the chief of staff led to the confusion that he later alleges occurred that afternoon paragraph thirty five that did to the chief of staff florida both doctors the mania and the on call cody ologist were attempting to treat the patient at the same time and this is the crux of the problem we got two doctors trying to treat a patient who is critically ill he was admitted to the hospital having possibly suffered a heart attack thirty six disagreements about the immediate course of treatment ensued the gist of that is pretty plain paragraph thirty seven doctors of maine and was upset with the oh about the abus upset that the on call doctor who had previously refused to see the patient just because he was plenty of patient was now assuming care while doctors remaining was still the attending physician for the plaintiff and in paragraph thirty eight doctors the manias frustration was k care unit again you can't have confusion in an area that treats critically ill patients paragraph forty two both doctors gave orders to the c c u nurses at the same time you begin to see what the problem is paragraph forty three the situation led to the chief of staff who was home at the time been called to come to the hospital the tension level hospital again the shows the test the degree to which the problem is escalated and you know that the house representative is now having to deal with a lot of confusion and tension in the c c u paragraph forty eight doctors a mania and sought out the chief of staff for an explanation again he's escalating it back up to the chief of staff with forty nine thereafter there was several meetings decision but you're not saying very much about the due process issue that is whether doctors and many and was afforded the due process that the law requires i mean it's fine that you argue with  think but tell us about what process was or was not provided as required by law about the process he received was once he was notified of his summer suspension the following day he was given a letter which laid out the grounds for his suspension that's in his initial complaint he doesn't specify what the letter said he was invited to attend a meeting of the medical executive committee the m e c the following day the eighth of october he didn't show up for that he claims in his complaint that it was because he was afraid of a fear of arrest but there's no allegation in the complaint that he did anything to allay that fear he didn't call the hospital and say whoa can i come can i really come heard from two my witnesses to the incident he complains that they didn't look at the medical records but there's no requirement that they look at the medical records these people are trying to determine what happened and they heard from two eyewitnesses who stories were consistent no need to look at medical records two days after that the medical staff appropriateness of care committee met and considered it again doctors a mania was a no show for that they affirmed the the panel met on three nights and heard testimony prior to the panel meeting doctors a may and was allowed to conduct discovery he complains that we didn't follow the bylaws which provide that the hearing will be held in forty five days he admits that part of the delay was due to his desire to take depositions which he was permitted to do he also obtained documents from the hospital  he he also object he he claims that there in his complaint he alleges that with problems in assembling the panel what he doesn't tell you is that's when they chant he was challenging a couple members on the panel and so they were replaced the panel went ahead end of the day he's objecting to some of the conclusions that the panel reached but i mean any time you try to try a case you're going to get witnesses whose testimony conflicts the courts you know this is a hospital privileges case a credential in case and the courts grant considerable deference to the hospital bodies that make the credentialing decisions because they have a unique expertise in this area and this case  is really classic for that because we had a seriously ill patient we had heard a bad situation in the critical care unit and we had you know we had witnesses who then testified to a panel of doctors about what happened and you know what he's really coming in now and saying is i want to weigh the evidence i don't i disagree with the conclusions they reached but again we go back to the the case that there's any minimal standard of rationality just to support the decision and in this case you know as as judge any found he received adequate due process his you know what he doesn't what he never gets over that last hurdle about proving that there was no meant almost standard of rationality behind the decision and clearly when you look at the that what he admits to in his complaint the situation he created at the hospital that afternoon the conflict the conflict in all of us the fact that he continued to give orders throughout the afternoon after he had several meetings with the chief of staff and you know when we get to the end for and says what do you think what is a reasonable inference to draw from his several meetings with the chief of staff shouldn't he have asked don't you think it was reasonable to infer that done at least one of these meetings with the chief of staff he asked why is the on call cardiologist treating my patient is it reasonable that to infer that he asked why are they ignored my  enough facts that there's a more than attic more than reasonable basis for the for the decision that the fair hearing panel reached now he does complain about not being able to go to the n a c i would suggest to the panel because it was a fresh start for him at that point he had depositions he had witnesses he had an attorney he had brief c and everything he needed so anything that happened earlier i think was mooted by the time we get to the fair hearing panel the last day of a long week you don't need that and doesn't need to concern your mental barrier wire for you i appreciate that and i don't need the sob wanted argument and we're and we think you need argument and certainly i very much appreciate the chance to argue my case on behalf of doctors meaning here today i think that the entirety of mr state thems argument is premised on viewing the facts in the light most favorable to his client that's not the standard that's after the boy here today we're not running away from facts that could be construed to be unfavorable to doctors i mean they're in there because they provide context as to what happened the reason that there's due process outlined or these procedures are outlined in the e j manual in the byelaws it's because he's absolutely right this is a emergency room it's a critical care facility things happen quickly and it's important that the chief of staff can take actions that he thinks are necessary to preserve life of patients and the safety of employees and you want to us there without question that he is entitled to do that but the whole reason that the rest of the process is in place is that in in those circumstances sometimes mistakes are made and that's the purpose of the fair panel review hearing we put forth all of the evidence in our complaint that plainly disputes the conclusions that were reached by the piano in their own opinion sites in an appropriate standard that's contained in the guy laws bylaws that governs how they are supposed to rule for the purposes of this no cause of action we've met our standard and i think your honor it's plain that the trial court just heard that it missed the boat on this for whatever reason doctors a mania has stated a cause of action for violation of his procedural due process right