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ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

BRIAN PLASKON, 

Plaintiff,

v.

PUBLIC HOSPITAL DISTRICT NO. 1 OF

KING COUNTY d/b/a VALLEY MEDICAL

CENTER, et al.,

Defendants.

Case No. C06-0367RSL

ORDER GRANTING 

DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT

I. INTRODUCTION

This matter comes before the Court on a motion for summary judgment (Dkt. #32) filed

by all defendants, who include Valley Medical Center (“VMC” or the “hospital”), Drs. Eric

Waterman, Terrence Block and Andrew Oliveira, and certain members of VMC’s Board of

Commissioners, including Carolyn Purnell, Michael Miller, and Dr. Gary Kohlwes (collectively,

“defendants”). Plaintiff, who was a surgeon at VMC, argues that defendants terminated some of

his clinical privileges to practice at VMC and publicized stigmatizing information about him in

retaliation for his complaints about staffing and patient care. Plaintiff asserts a claim under 42

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1

 Because the Court finds that this matter can be decided on the memoranda, declarations,

and exhibits, defendants’ request for oral argument is denied.

ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 2

U.S.C. § 1983 based on alleged violations of his First Amendment and due process rights.1

According to his complaint, plaintiff seeks monetary damages and reinstatement of “full clinical

privileges.”

Plaintiff, who is also a licensed attorney and is proceeding pro se, sent the Court a letter

requesting an extension of time to respond to the motion, claiming that he needed additional

time to obtain affidavits from unnamed “out of state witnesses.” The Court denied the request. 

(Dkt. #37). Plaintiff has not filed any response to defendants’ motion.

For the reasons set forth below, the Court grants defendants’ motion.

II. DISCUSSION 

A. Background Facts.

Plaintiff applied for initial appointment to the surgery department at VMC in October

1998. In his application, he stated that his specialty was general surgery. Plaintiff’s request for

clinical privileges to practice as a general surgeon was granted in June 1999.

VMC uses a peer review decision-making process in granting privileges at the hospital. 

After obtaining an initial appointment to VMC’s active staff, physicians are required to apply for

renewal of their privileges every two years to remain on active staff at the hospital. The

physician bears the burden of establishing that he is qualified and competent to hold each

privilege he requests, each time he reapplies for the privileges. Declaration of Dr. Terrence

Block, (Dkt. #32-2) (“Block Decl.”) at ¶ 3.

In May 2002, Dr. Oliveira, who was the Chair of the Professional Performance

Committee (“PPC”), submitted a memorandum to various VMC personnel informing them that

VMC intended to adopt a concept called “core privileging.” The core privileges for each

specialty “were those procedures which a physician within that specialty would commonly have

residency training and board certification to perform and which would be necessary in that

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ORDER GRANTING MOTION

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specialty.” Declaration of Andrew Oliveira, (Dkt. #32-8) (“Oliveira Decl.”) at ¶ 2. In June

2003, VMC formally changed its handling of privileges for surgeons, including plaintiff, so that

the hospital would grant them only those privileges that fell within the list of core competencies

as established by the department chief.

Plaintiff applied to renew his privileges in 2002. When he did so, he signed a form

acknowledging that as an applicant for “recredentialing,” he had “the burden of producing

adequate information for proper evaluation of [his] competence . . . and other qualifications.” 

Oliveira Decl., Ex. 8. Plaintiff’s application was initially approved by the Chief of the

Department of General Surgery and the PPC. It was then sent to the Medical Executive

Committee (“MEC”) for further review. Dr. Waterman, the acting Chief of Staff for the MEC,

approved plaintiff’s re-application only in part. He noticed that plaintiff applied for privileges

outside of the core privileges, including ear, nose and throat privileges (the “ENT privileges”). 

Dr. Waterman noted on the approval document that plaintiff would need to show training and

clinical activity establishing his competency to perform the ENT privileges. Plaintiff’s

application was then returned to the PPC for further review. When Dr. Oliveira asked plaintiff

about his request, plaintiff confirmed that he had not performed the procedures since he began

practicing at VMC and did not have any plans to do so. Dr. Oliveira asked plaintiff if he would

withdraw his request for ENT privileges, and plaintiff refused.

In August 2002, the PPC reviewed plaintiff’s application further. It recommended that

his application be approved with the exception of the ENT privileges because plaintiff had not

performed any of the ENT privileges while practicing at VMC and because the privileges were

outside of the core privileges. The MEC then reviewed, and ultimately confirmed, the PPC’s

recommendation in September 2002. Plaintiff chose not to attend the meeting or provide

evidence of his competency, despite having been invited to do so. Nevertheless, over the next

several months, the MEC invited him three more times to attend an MEC meeting and provide

evidence of his competency to perform the ENT privileges. Plaintiff declined each time. The

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ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 4

MEC also reminded plaintiff that he could withdraw his request for ENT privileges without any

further action by the hospital, but he refused.

In October 2002, plaintiff requested a Fair Hearing. Defendant Dr. Gary Kohlwes, acting

as Chairman of the Board of Commissioners (“BOC”), provided plaintiff with a list of VMC’s

witnesses for the hearing and provided other information about the process. During the hearing,

plaintiff did not call any witnesses, claiming that they were unavailable. He declined an offer

for a continuance to obtain witnesses. When discussing the ENT privileges at the hearing, he

admitted: “I don’t expect I’ll do these privileges. It’s just very uncommon for a general surgeon

to do these at Valley Medical Center.” Block Decl. at ¶ 30. In February 2003, the Fair Hearing

Panel unanimously confirmed the PPC’s and the MEC’s decisions. Plaintiff appealed the

decision to the BOC. The BOC is the entity that takes official action to grant or deny privileges

based on the recommendations made to it by the MEC. Once again, plaintiff was invited to

provide any evidence of his clinical activity for any of the ENT privileges, and he again failed to

do so. In March 2003, the BOC issued its decision accepting the recommendations of the PPC,

the MEC, and the Fair Hearing Panel.

By letter dated November 8, 2002, plaintiff informed Dr. Waterman that the decision not

to grant him ENT privileges was required by federal mandate to be reported to the National

Practitioner Data Bank (“NPDB”). Block Decl., Ex. 18. Therefore, in March 2003, VMC

submitted information about the limitation of plaintiff’s privileges to the NPDB. Block Decl.,

Ex. 37. The letter explained the reasons for the action as “surgeon requested seven ENT

privileges not performed in over three years; physician felt to be ineligible for these privileges

based upon our inability to judge current clinical competence. Also privileges are not ‘core’ for

a general surgeon.” Id. 

B. Summary Judgment Standard.

On a motion for summary judgment, the Court must “view the evidence in the light most

favorable to the nonmoving party and determine whether there are any genuine issues of material

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ORDER GRANTING MOTION

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fact.” Holley v. Crank, 386 F.3d 1248, 1255 (9th Cir. 2004). All reasonable inferences

supported by the evidence are to be drawn in favor of the nonmoving party. See Villiarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002). “[I]f a rational trier of fact might

resolve the issues in favor of the nonmoving party, summary judgment must be denied.” T.W.

Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).

C. Analysis.

Defendants claim that plaintiff’s claims are barred by the one-year statute of limitations

in RCW 7.71.030, which provides the “exclusive remedy for any action taken by a professional

peer review body of health care providers . . . that is found to be based on matters not related to

the competence or professional conduct of a health care provider.” RCW 7.71.030(1). In this

case, it is unclear whether that statute applies because the decisions appear to have been based

on plaintiff’s “competence.” Defendants also argue that plaintiff’s claims for monetary relief are

barred by the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. § 11101, et seq. 

According to the plain language of the statute, however, immunity does not apply to civil rights

cases. 42 U.S.C. § 11111(a); Austin v. McNamara, 979 F.2d 728, 733 (9th Cir. 1992) (noting

that the immunity provision “excludes from its coverage suits brought under 42 U.S.C. § 1983”). 

Defendants are therefore not entitled to immunity under the HCQIA. Nevertheless, plaintiff’s

claims fail for the reasons set forth below.

1. Due Process Claims

This Court will not review the merits of VMC’s decision. Instead, the review is limited

to whether plaintiff was afforded due process and “whether an abuse of discretion by the

hospital board occurred, resulting in an arbitrary, capricious or unreasonable exclusion.” Lew v.

Kona Hosp., 754 F.2d 1420, 1425 (9th Cir. 1985); see also Ritter v. Bd. of Comm’rs, 96 Wn.2d

503, 515-516 (1981). “Administrative action is not arbitrary or capricious if there are grounds

for two or more reasonable opinions and the agency reached its decision honestly and with due

consideration of the relevant circumstances.” Ritter, 96 Wn.2d at 515. In this case, although

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ORDER GRANTING MOTION

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plaintiff alleges that Dr. Waterman had a conflict of interest, he does not explain what the

conflict was or how it affected his decision. Instead, the hospital reached the decision honestly

and after considering the circumstances in numerous stages of review. Ample grounds support

defendants’ decision, including the fact that the privileges were not core privileges, plaintiff had

not performed the ENT privileges while employed at the hospital, he did not plan to do so, and

he refused to produce any evidence of his competence to perform the procedures, despite

repeated invitations to do so. 

Plaintiff also claims that he was denied procedural due process. To evaluate that claim,

the Court considers “(1) whether the interest plaintiff asserts rises to the level of a property

interest, and if so, (2) whether, in light of the competing interests of the individual and the state,

the procedures afforded plaintiff before termination satisfied due process.” Lew, 754 F.2d at

1424 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). Plaintiff had no property right to

the ENT privileges because he had to reapply periodically to obtain privileges and had no

contractual right to renewed privileges. See, e.g., Ritter, 96 Wn.2d at 509 (explaining that,

under Washington law, a physician does not have a protected property interest in continued

renewed privileges at a public hospital unless he has a specific contractual right to them). 

Plaintiff also argues that defendants violated his liberty interest by publicly disclosing the

denial of privileges to the NPDB. However, plaintiff does not allege, and there is no evidence

to show, that the disclosure seriously damaged his reputation, foreclosed his opportunities to

obtain other employment, or resulted in his dismissal. See, e.g., Ritter, 96 Wn.2d at 510; Jablon

v. Trustees of Cal. State Colleges, 482 F.2d 997 (9th Cir. 1973). Furthermore, the information

communicated was accurate. See, e.g., Ulrich v. City & County of San Francisco, 308 F.3d 968,

982 (9th Cir. 2002) (explaining that plaintiff “must show the public disclosure of a stigmatizing

statement by the government, the accuracy of which is contested . . .”). Accordingly, plaintiff

was not denied a property right or a liberty interest.

Even if plaintiff was deprived of those rights, he was afforded due process. Plaintiff

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ORDER GRANTING MOTION

FOR SUMMARY JUDGMENT - 7

received numerous and adequate procedural steps before the hospital decided not to grant him

ENT privileges. He received written notice of the Fair Hearing and the issue to be decided, and

he had an opportunity to present a defense including cross-examining and calling witnesses. At

each step, the hospital’s decisions were carefully considered and based on substantial evidence. 

Lew, 754 F.2d at 1424. In fact, plaintiff chose not to pursue some of the processes available to

him, including presenting evidence at the Fair Hearing and attending any of the many MEC

meetings to which he was invited. The hospital had a clear interest in requiring some evidence

of competency for the requested privileges, and plaintiff never provided any such evidence. 

Accordingly, defendants did not violate plaintiff’s due process rights.

2. First Amendment Claim

Plaintiff alleges that his reapplication for privileges was denied “shortly after” he

complained about staffing and patient care protocols. Complaint at ¶ 1.1; id. at ¶ 4.3. A

plaintiff arguing retaliation for the exercise of First Amendment rights must show the following:

(1) that he or she engaged in protected speech, (2) that the employer took adverse employment

action, and (3) that his or her speech was a substantial or motivating factor behind the adverse

employment action. See, e.g., Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003). 

After plaintiff makes that showing, the “burden shifts to the public employer to demonstrate

either that, under the balancing test established by Pickering v. Bd. of Educ., 391 U.S. 563, 568

(1968), its legitimate administrative interests outweighed [plaintiff’s] First Amendment rights or

that, under the mixed motive analysis established by Mount Healthy City Sch. Dist. v. Doyle,

429 U.S. 274, 287 (1977), it would have reached the same decision even in the absence of the

Plaintiff’s protected conduct.” Ulrich, 308 F.3d at 976. Even if plaintiff’s speech was protected

by the First Amendment, plaintiff has not provided any evidence of retaliation. His assertion

that his application was partially denied “shortly” after his protected conduct is too vague and

conclusory to defeat summary judgment. In addition, plaintiff has provided no evidence that his

employer expressed any opposition to his speech. Defendants have provided a reasonable

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ORDER GRANTING MOTION

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explanation for the hospital’s decision, and plaintiff has not offered any evidence that the reason

was false or pretextual. See, e.g., Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741,

751 (9th Cir. 2001) (explaining the potential ways a plaintiff can show that retaliation was a

substantial or motivating factor behind the adverse employment action). Accordingly, plaintiff’s

First Amendment claim fails.

III. CONCLUSION

For all of the foregoing reasons, the Court GRANTS defendants’ motion for summary

judgment (Dkt. #32). The Clerk of the Court is directed to enter judgment in favor of defendants

and against plaintiff.

DATED this 16th day of November, 2007.

A

Robert S. Lasnik

United States District Judge

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