Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

MICHAEL D. BRANDNER, M.D., 

Appellant, 

v. 

PROVIDENCE HEALTH & 

SERVICES — WASHINGTON, 

Appellee. 

) 

) Supreme Court No. S-15933 

Superior Court No. 3AN-13-07697 CI 

O P I N I O N 

No. 7135 – November 25, 2016 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Appeal from the Superior Court of the State of Alaska, Third 

Judicial District, Anchorage, Patrick J. McKay, Judge. 

Appearances: Richard W. Maki and David H. Shoup, Tindall 

Bennett & Shoup, P.C., Anchorage, for Appellant. Robert J. 

Dickson and Peter A. Scully, Atkinson, Conway & Gagnon, 

Anchorage, for Appellee. 

Before: Stowers, ChiefJustice, Winfree and Bolger, Justices. 

[Fabe and Maassen, Justices, not participating.] 

WINFREE, Justice. 

I. INTRODUCTION 

Providence Alaska Medical Center terminated Dr. Michael Brandner’s 

hospital privileges without notice and an opportunity to be heard after determining he 

had violated hospital policy by failing to report an Alaska State Medical Board order 

requiring him to undergo an evaluation of his fitness to practice medicine. Dr. Brandner 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

unsuccessfully challenged this action through Providence’s internal post-termination 

hearing and appeal procedures. Dr. Brandner then sued in superior court, seeking 

reinstatement and damages for, in relevant part, alleged due process violations both in 

the procedures used and in the substantive standard applied in his termination. The 

superior court ruled that Dr. Brandner’s due process rights were not violated, that he was 

not entitled to reinstatement, and that under federal law Providence was entitled to 

immunity from his damages claims. 

Weaffirmthesuperiorcourt’s decision concerning thesubstantivestandard 

applied to terminate Dr. Brander; he therefore is not entitled to reinstatement or posttermination-hearing damages. But Dr. Brandner’s due process rights were violated by 

the procedures Providence employed because was not given required notice and a 

hearing prior to the termination of his hospital privileges; we therefore reverse the 

superior court’s decision on the pre-termination notice and hearing claimand its decision 

that Providence had damages immunity from this claim, and we remand for further 

proceedings. 

II. FACTS AND PROCEEDINGS 

A. Facts 

Dr. Brandner had hospital privileges as a surgeon at Providence from 1995 

to 2009, when he took a medical leave of absence because of a cardiac condition. He 

returned to work in March 2010 and Providence reinstated his hospital privileges, 

excepting hand surgery. ProvidencealsogaveDr. Brandnerasix-month exemption from 

emergency call duties. In November 2010 Providence reinstated Dr. Brandner’s hand 

surgery privileges after reviewing his surgical cases and finding himcompetent, but kept 

in place the emergency call exemption. 

In October 2010 the Alaska State Medical Board (State Board) ordered 

Dr. Brandner to undergo psychiatric and medical evaluations after receiving a complaint 

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that he had contacted someone in the Governor’s office and made a threat involving a 

gun. The evaluations were part of the State Board’s investigation into Dr. Brandner’s 

“ability to practice medicine in a manner consistent with public safety,” and he was 

required to complete them within 45 days. The State Board’s order also stated: 

Failure to comply with this order will result in the automatic 

suspension of [Dr. Brandner’s] license to practice medicine 

in Alaska and it will remain suspended until such time as the 

evaluations are completed and the results of the evaluations 

are reviewed by the [State] Board, and the [State] Board 

determines Dr. Brandner is able to practice medicine in a 

manner consistent with public safety. 

Dr. Brandner timely complied with the order by undergoing a five-day evaluation in 

early December 2010 at the Menninger Clinic in Texas. The clinic found no evidence 

indicating he was unfit to practice medicine. Later in December the State Board closed 

its investigation without imposing any “further investigation or disciplinary action”; it 

sent Dr. Brandner confirmation of its decision in May 2011. 

Doctors enjoying Providence hospital privileges are required to comply 

with policies set out in the Providence Code of Conduct and Medical Staff Bylaws. 

Policy MS 980-150(D) requires doctors to report to the chief of staff or the medical staff 

services department manager “any limitations, restrictions[,] or conditions of any sort 

imposed by a state board, health care entity[,] or agency with respect to the practitioner’s 

practice . . . no later than thirty (30) days after a final order has been issued.” The policy 

states that doctors who violate this reporting requirement “will be subject to an automatic 

termination” of hospital privileges. Dr. Brandner did not inform Providence’s chief of 

staff or medical staff services manager about the State Board order, nor did he disclose 

his December 2010 evaluation at the Menninger Clinic. 

Procedures for reviewing, investigating, and resolving concerns about 

doctors’ clinical proficiency and professionalconductaregovernedbyProvidencepolicy 

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MS 980-100, referred to as the Investigation, Hearing, and Appeals Plan (Fair Hearing 

Plan). Under this policy the Providence Medical Staff Executive Committee (executive 

committee) is responsible for overseeing doctors’ conduct. Concerns about a doctor’s 

conduct are first presented to the executive committee; it then has authority to conduct 

peer reviews and make recommendations to theProvidenceAlaskaCommunityMinistry 

Board (Providence Board) on granting, limiting, suspending, or terminating hospital 

privileges. The executivecommittee’s recommendationsgenerally do not by themselves 

affect a doctor’s hospital privileges; the Providence Board receives the recommendation, 

considers the matter independently, and makes the ultimate decision. Some hospital 

policies, including the one at issue here, provide for automatic termination of hospital 

privileges if a doctor engages in specified conduct. An automatic termination 

recommendation triggers a process under MS 980-100 entitling the doctor to a hearing 

and an appeal. After the hearing and appeal procedures are exhausted the Providence 

Board’s confirmation,modification, or rejectionofthehearingbodies’ recommendations 

becomes Providence’s final decision. 

In January2011 theexecutivecommitteecalled Dr. Brandner to its monthly 

meeting to discuss his emergency call duties. The executive committee was concerned 

because Dr. Brandner had listed his name on the emergency call sign-up sheets despite 

not yet being authorized to resume those duties. During that meeting the executive 

committee was alarmed by Dr. Brandner’s “disjointed” statements. The executive 

committee invited him to a second meeting in February to decide whether to investigate 

his fitness to practice medicine. At the February meeting Dr. Brandner’s “rambling and 

confused” conduct again raised concerns that he might not be “medically fit,” and the 

executive committee ordered him to undergo a “fitness for duty” evaluation at the 

Menninger Clinic. 

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Kim Pakney, Providence’s medical staff services manager, called 

Dr. Brandner in March to arrange the evaluation. During this call Dr. Brandner disclosed 

to Pakney that he recently had been evaluated at the clinic. Pakney told Dr. Brandner 

that he could either undergo another evaluation or allow the executive committee to 

obtain the December 2010 evaluation records. Dr. Brandner chose to release his 2010 

evaluation. According to Pakney’s later testimony, Dr. Brandner did not mention the 

State Board’s order during their conversation and instead indicated he had visited the 

clinic at his cardiac surgeon’s suggestion. Dr. Brandner testified that he told Pakney he 

had gone to the Menninger Clinic “to pursue some things.” Only when Pakney received 

Dr. Brandner’s clinic records did she realize that he had undergone the evaluation 

pursuant to an order from the State Board. She immediately notified the Providence 

executive committee. 

At its next meeting, on June 13 — without notice to or presence by 

Dr. Brandner — the executive committee voted to recommend termination of 

Dr. Brandner’s hospital privileges for failure to report the State Board’s order requiring 

him to submit to an evaluation. The executive committee determined that the order was 

a final order imposing a condition on Dr. Brandner’s license, and that his failure to report 

the order to the chief of staff or the medical staff services department manager within 30 

days constituted a violation of Providence policy MS 980-150(D). 

In a June 17 letter Providence’s chief executive officer notified 

Dr. Brandner that the executive committee “recommended the automatic termination of 

[his hospital] privileges and staff membership,” that he had the right to a hearing, and 

that the Providence Board would “not be bound by the adverse recommendation made 

thus far.” A few days later the Providence Board affirmed the executive committee’s 

recommendation terminating Dr. Brandner’s hospital privileges. Dr. Brandner timely 

requested a hearing. At oral argument before us the parties confirmed that 

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Dr. Brandner’s privileges effectively were terminated June 17, before any hearing took 

place, and that after that date he was not allowed to practice at Providence. 

B. Proceedings 

1. Providence Fair Hearing Panel proceedings 

In November 2011 Dr. Brandner received a one-day hearing before a threedoctor panel pursuant to Providence’s Fair Hearing Plan. A former superior court judge 

presided as the hearing officer. Dr. Brandner was represented by an attorney, presented 

evidence, cross-examined Providence’s witnesses, and testified on his own behalf. 

Providence’s witnesses testified about the importance of physicians self-reporting 

conditions on their licenses because of the potential impact on patient care. Dr. Brandner 

argued that the State Board’s order was not a “condition” on his license within the 

meaning of the Providence reporting policy. He argued instead that the order was a part 

of an “investigation,” and stated that he did not believe the policy required reporting 

investigations. 

The panel decided that the order did impose a “condition” on 

Dr. Brandner’s license because “[t]he plain language of the . . . [o]rder . . . clearly 

advised Dr. Brandner that the continued viability of his license was conditioned upon his 

timely completion of [] psychiatric and medical evaluations at the Menninger Clinic.” 

The panel also found Dr. Brandner’s testimony regarding his interpretation of the 

hospital policy “less than credible” because: (1) he testified that he attended the 

Menninger Clinic to “pursue some things”; (2) Pakney testified that Dr. Brandner said 

he attended the clinic because his cardiac surgeon had recommended it; and (3) it was 

undisputed that Dr. Brandner actually attended the clinic because the State Board 

required it. 

The panel concluded that because the State Board order plainly stated 

Dr. Brandner’s license would be suspended if he did not comply, a responsible, 

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reasonable doctor would have reported the order or at least asked Providence for 

guidance on whether the order triggered Providence’s self-reporting policy. It 

unanimously upheld the executive committee’s recommendation and the Providence 

Board’s decision terminating Dr. Brandner’s hospital privileges, finding that they were 

“not arbitrary, capricious[,] or unsupported by substantial evidence.” 

2. Providence Appellate Review Committee proceedings 

Dr. Brandner timely appealed the panel’s decision to the Providence 

AppellateReviewCommittee(reviewcommittee)pursuant totheFair Hearing Plan. The 

review committee, comprised of five members — none of whom had participated in the 

earlier proceedings — convened in March 2012. 

The review committee upheld the hearing panel’s decision by a 4-1 vote. 

In its decision the review committee noted that Dr. Brandner’s reading of the hospital 

policy regarding the scope of “condition” was “plausible” but that the review 

committee’s role was not to substitute its judgment for that of the hearing panel or to reweigh the evidence. The review committee concluded that the hearing panel’s actions 

compliedwith Providence’sFair Hearing Plan,werenot arbitrary or capricious,and were 

supported by substantial evidence. One review committee member dissented, writing 

that the State Board’s order was not a “final order” imposing “conditions” under 

Providence policy MS 980-150(D) and thus did not trigger the self-reporting 

requirement. The dissent expressed concern that the hospital policy was applied based 

in part on Dr. Brandner’s fitness to practice and not just his failure to report the State 

Board order, and it noted that the failure to self-report alone typically would not result 

in automatic termination of privileges. After the review committee issued its report, the 

committee chair sent the Providence Board a letter recommending clarifying MS 980­

150(D)’s language by adding some “interpretive guidance to illustrate the types of 

limitations, restrictions, and conditions that are intended to be included.” 

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In April 2012, after considering the hearing panel’s and the review 

committee’s decisions upholding the executive committee’s recommendation, the 

Providence Board affirmed the termination of Dr. Brandner’s hospital privileges. 

3. Superior court proceedings 

In June 2013 Dr. Brandner filed suit in superior court against Providence, 

the doctors who made up the hearing panel, and the doctors on the executive committee 

who testified at his hearing. Dr. Brandner alleged breach of contract, due process 

violations, defamation, and other contract claims. He sought both declaratory and 

injunctive relief restoring his hospital privileges and substantial money damages. 

Providence and the doctors moved for summary judgment, asserting peer review 

immunity under both Alaska law1 and the federal Health Care Quality Improvement Act 

(HCQIA).2 Dr. Brandner opposed and cross-moved for partial summary judgment, 

arguing that Providence and the doctors were not entitled to immunity under either state 

or federal law and that his due process rights were violated. In February 2014 the 

superior court granted summary judgment in favor of the individual doctors, concluding 

that AS 18.23.020 immunized them from suit.3 The court also granted summary 

1 See AS 18.23.020 (limiting review proceedings participants’ liability for 

damages or other relief if their review actions were not motivated by malice, were taken 

after reasonable efforts to ascertain the facts, and were taken with the reasonable belief 

that they were warranted). 

2 42 U.S.C. §§ 11101-11152 (2012). Congress passed HCQIA in an effort 

to “restrict the ability of incompetent physicians to move from State to State without 

disclosure or discovery of the physician’s previous damaging or incompetent 

performance” by encouraging physicians to engage in “effective professional peer 

review.” 42 U.S.C. § 11101. In pursuit of this aim the HCQIA limits damages on 

professional review actions. 42 U.S.C. § 11111. 

3 We later affirmed this decision in Brandner v. Bateman, concluding that 

(continued...) 

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judgment in Providence’s favor on Dr. Brandner’s contract claims. The court denied 

Dr. Brandner’s cross-motion for summary judgment on his due process claims against 

Providence. 

Dr. Brandner’s due process claims were tried without a jury. The superior 

court found that Dr. Brandner intentionally misled Providence by consciously hiding the 

State Board order that he undergo an evaluation, and that his “blatant dishonesty” and 

“lack of candor” raised substantial patient care issues. The court also concluded that 

when a hospital policy requires self-reporting a condition placed on a physician’s state 

license, due process does not require a pre-termination hearing for failure to report in 

violation of that policy. Finally, the court concluded that Providence was entitled to 

immunity under HCQIA. 

Dr. Brandner appeals, arguing that: (1) Providence’s termination of his 

hospital privileges without pre-termination notice or hearing is a due process violation; 

(2) the post-hearing termination violated due process because it was based on an 

ambiguous policy applied arbitrarily and capriciously; and (3) Providence is not entitled 

to HCQIA immunity from his due process claims. Providence responds that: (1) the 

automatic termination of Dr. Brandner’s hospital privileges is not a due process 

violation; (2) its hospital policy is not unduly ambiguous; and (3) under HCQIA it is 

immune from damages even if Dr. Brandner succeeds in his due process claims. 

3 (...continued) 

“the executive committee and hearing panel reasonably interpreted the policy” and 

“enforced the sanction explicitly indicated in the policy.” 349 P.3d 1068, 1076 (Alaska 

2015). 

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III.	 STANDARD OF REVIEW 

We review due process claims de novo, “adopting the rule of law most 

persuasive in light of precedent, reason, and policy.”4 Whether the HCQIA immunizes 

Providence from Dr. Brandner’s due process claims is a question of law that we also 

review de novo.5 

IV.	 DISCUSSION 

A.	 Dr. Brandner’s Due Process Rights Were Violated When His Hospital 

Privileges Were Terminated Without Pre-Termination Notice Or 

Hearing. 

Although the parties dispute what process was due at certain points in the 

termination process, they agree that Dr. Brandner’s admitting privileges trigger some 

form of due process protection.6 

1.	 Dr. Brandner did not waive his right to a pre-termination 

hearing. 

Providence argues that Dr. Brandner waived his right to a pre-termination 

hearing by agreeing to be bound by MS 980-150, triggering an “automatic termination” 

without providing for a pre-termination hearing. The right to a pre-termination hearing, 

Providence argues, may be waived if a sufficient post-termination grievance procedure 

4 Alyeska Pipeline Serv. Co. v. State, Dep’t of Envtl. Conservation, 145 P.3d 

561, 564 (Alaska 2006). 

5 Bryan v. James E. Holmes Reg’l Med. Ctr., 33 F.3d 1318, 1332 & n.24 

(11th Cir. 1994); see also Maness v. Daily, 307 P.3d 894, 900 (Alaska 2013) 

(articulating the de novo standard of review in the federal qualified immunity context). 

6 See Storrs v. Lutheran Hosps. &Homes Soc’y of Am., Inc., 609 P.2d 24, 28 

(Alaska 1980) (holding quasi-public hospitals cannot violate due process standards in 

denying staff privileges). 

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is afforded.7 We previously have held that a waiver of constitutional rights must be 

knowing and voluntary, and even in civil cases “courts must indulge every reasonable 

presumption against their waiver.”8 And although constitutional rights are subject to 

contractual waiver, such waiver must be clear.9 Courts have found clear waiver, for 

example, in collective bargaining agreements representing “a reciprocal negotiation 

between forces with strengths on both sides, reflecting the reconciled interests of 

employer and employees, voluntarily entered into.”10 But here Dr. Brandner had not 

entered into a reciprocal negotiation with Providence for his hospital privileges; the 

requirement of abiding by the hospital’s policy to obtain privileges is more akin to a 

contract of adhesion. 

Providencecites Whitakerv. Houston CountyHospital Authority to support 

its proposition that a doctor can waive the right to a pre-termination hearing and, if 

waived, the automatic termination of hospital privileges would not violate the doctor’s 

due process right.11 But in Whitaker the doctor “expressly waive[d] any procedural due 

7 See Storrs v. Municipality of Anchorage, 721 P.2d 1146, 1150 (Alaska 

1986) (providing collective bargaining agreement may alter covered employees’ pretermination rights in limited circumstances); Antinore v. State, 371 N.Y.S.2d 213, 217 

(N.Y. App. Div. 1975) (finding collective bargaining agreements made by “a reciprocal 

negotiation between forces with strengths on both sides, reflecting the reconciled 

interests of employer and employees, voluntarily entered into” can waive due process 

rights). 

8 Lynden Transp. v. State, 532 P.2d 700, 717 (Alaska 1975). 

9 Bowen v. N.C. Dep’t of Human Res., 710 F.2d 1015, 1018 (4th Cir. 1983). 

10 Antinore, 371 N.Y.S.2d at 217. 

11 613 S.E.2d 664, 671-72 (Ga. App. 2005). 

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process rights” through a contract entered into directly with the hospital.12 Here neither 

Providence policy MS 980-150 nor the document Dr. Brandner signed for his 2009 

reinstatement at the hospital specifically mentioned waiving due process rights. Thus 

there is no evidence of a “conspicuous and unequivocal” intent by Dr. Brandner to waive 

his right to a pre-termination hearing. The superior court rejected Providence’s waiver 

argument,finding“nolanguagein [Dr. Brandner’sapplication forprivileges]referencing 

a general right to due process or dealing specifically with a physician’s right to . . . a pretermination hearing in professional review actions.” 

Like the superior court, we conclude that Dr. Brandner did not knowingly 

and clearly waive his due process rights merely by signing his reappointment application 

for hospital privileges. Thus Dr. Brandner maintained a protected property interest in 

his hospital privileges subject to due process if terminated. 

2.	 Due process required that Dr. Brandner receive notice and an 

opportunity to be heard prior to the termination of his hospital 

privileges. 

Dr. Brandner contends that due process requires a hearing before 

deprivation of a constitutionally protected property interest in employment.13 “We have 

consistently held that before the state may deprive a person of a protected property 

interest there must be a hearing . . . .”14 The only exceptions to this pre-termination 

hearing requirement are in emergency situations or when “public health, safety, or 

12 Id. at 667. 

13 See City of N. Pole v. Zabek, 934 P.2d 1292, 1297 (Alaska 1997). 

14 Graham v. State, 633 P.2d 211, 216 (Alaska 1981) (first citing Etheredge 

v. Bradley, 502 P.2d 146 (Alaska 1972); then citing Frontier Saloon, Inc. v. Alcoholic 

Beverage Control Bd., 524 P.2d 657 (Alaska 1974)). 

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welfare require[s] summary action.”15 Other courts have agreed that medical staff 

privileges are a valuable property interest and that notice and hearing should precede 

termination of these privileges absent an “extraordinary situation where a valid 

government or medical interest is at stake.”16 

Providence argues that Dr. Brandner was not entitled to a pre-termination 

hearing because the Providence policy contains explicit language that a violation of 

MS 980-150(D) results in “an automatic termination” and because of “Providence’s 

compelling interest” in ensuring patient safety and the highest quality in medical care. 

Providence contends that Dr. Brandner received all the process to which he was entitled 

because: (1) he had full and fair opportunity to make his arguments to a neutral hearing 

panel; (2) he had full and fair opportunity to appeal the hearing panel recommendation 

to a separate, neutral review committee and to the Providence Board, and both upheld 

the hearing panel’s decision; and (3) Providence followed the policies and procedures 

Dr. Brandner had agreed to abide by. But Providence’s procedures after terminating a 

doctor’s privileges do not remedy its failure to provide procedures before termination. 

We previously confirmed the importance of a hearing before suspending 

or terminating a doctor’s staff privileges because summary action amounts to “a stigma 

of medical incompetence” affecting the doctor’s ability to maintain income and 

reputation, both during the period between the deprivation of privileges and a hearing 

as well as after the hearing.17 This stigma is compounded because federal law now 

15 Id. (quoting Frontier Saloon, 524 P.2d at 661). 

16 Ne. Ga. Radiological Assocs., P.C. v. Tidwell, 670 F.2d 507, 511 (5th Cir. 

Unit B 1982); accord Shahewy v. Harrison, 875 F.2d 1529, 1533-34 (11th Cir. 1989); 

Osuagwu v. Gila Reg’l Med. Ctr., 850 F. Supp. 2d 1216, 1223 (D.N.M. 2012). 

17 McMillan v. Anchorage Cmty. Hosp., 646 P.2d 857, 864 (Alaska 1982). 

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requires that all terminations be reported to a national data bank.18 Acknowledging the 

competing interests between a doctor’s capacity to maintain employment and a health 

care entity’s interest in maintaining safe and qualified patient care, we have previously 

held that terminating hospital privileges before a hearing is “justified only where there 

is evidence that a physician’s conduct poses a realistic or recognizable threat to patient 

care which would require immediate action by the hospital.”19 

Providence contends that Dr. Brandner’s deceitfulness posed a realistic or 

recognizable threat to patient care; when a physician is dishonest and actively conceals 

licensing conditions, a hospital cannot address the undisclosed problems because it 

“simply does not know what it does not know” and thus cannot assess whether there 

might be a “realistic and recognizable threat” to patient care. Providence maintains, as 

a patient safety matter, that physicians must comply with Providence’s self-reporting 

policy and that failure to do so is “cause for deep concern.” 

Providence has a policy expressly authorizing an immediately effective 

“precautionary suspension” when a doctor presents an imminent danger to the health or 

safety of an individual or to the hospital’s orderly operations, but this was not the policy 

followedwhenterminating Dr. Brandner’s privileges. As Pakney noted at theNovember 

2011 hearing,therewasnoprecautionary suspension becausetherewas no determination 

that Dr. Brandner was an imminent danger to health or public safety. The executive 

committee was aware that the Menninger Clinic had evaluated Dr. Brandner and found 

he was fit to practice. Although this evaluation might not have considered other factors 

bearing on whether Dr. Brandner was an imminent threat to patient care, it is relevant to 

whether Providence actually terminated Dr. Brandner because it found that he posed a 

18 42 U.S.C. §§ 11133, 11136; 45 C.F.R. § 60.1 (2013). 

19 McMillan, 646 P.2d at 866. 

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threat to patient care. And the June 17, 2011 letter notifying Dr. Brandner of the 

executive committee’s recommendation that his privileges be terminated made no 

mention of patient safety concerns. 

It is possible, as Providence argues, that a physician’s dishonesty might in 

some circumstances be sufficient cause for emergency termination. But here this 

speculative possibility — raised as a post hoc rationalization rather than a demonstrated 

contemporaneous concern in Dr. Brandner’s case — does not rise to the level of a 

“realistic or recognizable threat” requiring an emergency termination of hospital 

privileges. We therefore disagree with the superior court and conclude that Providence 

violated Dr. Brandner’s right to due process by terminating his hospital privileges 

without pre-termination notice and hearing. 

B.	 Dr. Brandner’s Due Process Rights Were Not Violated Through 

Arbitrary And Capricious Application Of An Ambiguous Hospital 

Policy. 

Dr. Brandner further claims that his due process rights were violated 

becauseProvidencepolicyMS980-150(D) is vagueand ambiguous, andthatProvidence 

terminated his privileges in an arbitrary and capricious manner without regard to his 

reasonable policy interpretation or to whether terminating his hospital privileges was 

commensurate with the harm caused by breaching the policy. 

Although we do not interfere with hospital policy determining the medical 

training and experiencenecessarytoqualifyforhospital privileges,courtsmay determine 

whether a hospital has followed its own policies and whether a decision regarding 

hospital privileges was made in accordance with basic principles of fairness and due 

process of law.20 These principles require that: (1) the procedures employed are fair; 

(2) the standards are reasonable; and (3) the standards have not been applied in an 

Kiester v. Humana Hosp. Alaska, Inc., 843 P.2d 1219, 1223 (Alaska 1992). 

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20 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

arbitrary and capricious manner.21 Due process further requires that “criteria established 

for granting or denying privileges not be vague and ambiguous, and that as established, 

they be applied objectively.”22 “A statute, rule, or policy may be deemed impermissibly 

vague for either of two discrete reasons: It fails to provide people of ordinary 

intelligence a reasonable opportunity or fair notice to understand what conduct it 

prohibits; or, it authorizes or encourages arbitrary and discriminatory enforcement.”23 

Accordingly the inquiry before us is not whose policy interpretation is more reasonable, 

but whether the policy itself is so vague or ambiguous that it is susceptible to an arbitrary 

and capricious application. 

1. The policy’s application was clear. 

The superior court concluded that Providence policy MS 980-150 is “clear 

enough.” Dr. Brandner nonetheless contends that he found it ambiguous because its key 

terms could be interpreted differently by reference to state law. MS 980-150’s operative 

provision requires doctors to report to Providence “any limitations, restrictions, or 

conditions of any sort imposed by a state board, health care entity or agency with respect 

to the practitioner’s practice.” Dr. Brandner argues that state law does not construe the 

State Board’s order as a “disciplinary action” or a “condition,” because such actions 

would have required that the State Board hold a hearing and none occurred in his case.24 

21 Id. 

22 Id. at 1225. 

23 Roberts v. Titus Cty. Mem’l Hosp., 129 Fed. Appx. 82, 86 (5th Cir. 2005) 

(citing Chicago v. Morales, 527 U.S. 41, 56-57 (1999)). 

24 See AS 08.64.326(a) (requiring a hearing before imposing sanctions); 

AS08.64.331(a)(6)(describing sanctions StateBoard mayimpose, including“limitations 

or conditions on the practice of a licensee”). Dr. Brandner’s argument rests on the theory 

(continued...) 

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Thus Dr. Brandner argues that under state law his practice was never limited in any way 

and that he cannot be faulted for his interpretation, especially when the State Board 

investigator had confirmed in his case’s proceedings that his license “was not 

conditioned, limited, or restricted by the [State] Board.” 

Surviving a vagueness challenge requires “fair notice” of what is and what 

is not prohibited.25 And here the superior court found that Dr. Brandner had more than 

“fair notice” of what MS 980-150 required; he had actual knowledge that the policy 

required him to report the conditions the State Board placed on his license. The superior 

court found that Dr. Brandner knewtheself-reporting policy applied to his circumstances 

and knew he had an obligation to report the conditions placed on his license, and thus he 

knowingly violated the policy. Dr. Brandner does not challenge that finding. We 

therefore affirmthe superior court’s determination that the policy’s application was clear 

to Dr. Brandner. 

24 (...continued) 

that Providence must interpret the word “conditions” in MS 980-150 exactly, and only, 

as the word is used by the State Board in AS 08.64.331(a). We find this argument 

unpersuasive — “limitations” and “conditions” do not necessarily have the same 

meaning under MS 980-150, a Providence hospital policy, as they do under 

AS 08.64.331(a)(6), astatute setting out State Board procedures. And the hospital policy 

does not mention the statute. 

25 Roberts, 129 Fed. Appx. at 86; see Gottschalk v. State, 575 P.2d 289, 290 

(Alaska 1978). 

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2. The policy was not applied arbitrarily or capriciously.26 

When concerns are raised about a hospital policy giving enforcing 

authorities excessive discretion, the policy should not be found impermissibly vague 

absent evidence that it has been arbitrarily applied.27 And on the facts of this case, the 

hospital policy was not arbitrarily or capriciously applied. Dr. Brandner suggests that 

the ambiguity of the policy allowed Providence to enforce it in an arbitrary and 

capricious manner. As evidencethat Providencehad impermissibly broadened the scope 

of the policy and enforced it in an arbitrary and capricious manner, he points to 

testimony before the hearing panel from an executive committee member who took the 

view that the policy required reporting “investigations.” Dr. Brandner’s argument has 

no merit. The executive committee member’s testimony did not persuade the hearing 

panel to conclude that investigations, as well as limitations, restrictions, and conditions, 

must be reported. The hearing panel in fact concluded that Dr. Brandner’s hospital 

privileges were terminated because of his failure to report a “condition” the State Board 

imposed on his license, not because of his failure to report an investigation. 

Dr. Brandner also points to the superior court’s consideration of his other 

conduct violations as evidence that MS 980-150 is ambiguous about what constitutes a 

“condition,” arguing that the policy’s fundamental ambiguity allowed it to be applied 

arbitrarily. Specifically, Dr. Brandner argues that it was improper for the superior court 

to consider the fact that he signed up for emergency call duty when he was restricted 

26 See Roberts, 129 Fed. Appx. at 86 (holding a rule may be deemed 

impermissibly vague if “it authorizes or encourages arbitrary and discriminatory 

enforcement” (citing Chicago v. Morales, 527 U.S. 41, 56-57(1999))); see also Morales, 

527 U.S. at 60 (defining an arbitrary and discriminatory application as one that 

“necessarily entrusts lawmaking to the moment-to-moment judgment” of the enforcer). 

27 See Stock v. State, 526 P.2d 3, 8, 12 (Alaska 1974). 

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from doing so. But the superior court stated that Dr. Brandner’s alleged misconduct was 

not the basis for the Providence executive committee’s recommendation to terminate his 

privileges and that the hearing panel gave the misconduct evidence “no weight” in 

upholding the decision. We therefore affirm the superior court’s determination that the 

policy was not applied arbitrarily or capriciously. 

3. There is no history of arbitrary and capricious application. 

In the context of due process challenges to statutes and regulations, we will 

not invalidate a statute for vagueness absent “a history or pattern of arbitrary 

enforcement.”28 Although we do not need to consider whether this standard is applicable 

beyond that context, we nevertheless note that Dr. Brandner failed to identify a pattern 

ofProvidence arbitrarily enforcing MS 980-150. And the Providence reviewcommittee, 

in its letter to the Providence Board recommending review of the policy, wrote that the 

review committee had no reason to believe Providence had interpreted MS 980-150(D) 

differently for different physicians in the past or was likely to do so in the future. 

4. Summary 

Because Providence policy MS 980-150 was not vague or ambiguous with 

respect to Dr. Brandner or on its face, and because it was not applied in an arbitrary and 

capricious manner to Dr. Brandner or historically, we cannot conclude that Providence 

applying the policy in terminating Dr. Brandner’s hospital privileges violated his due 

process rights. Dr. Brandner therefore is not entitled to reinstatement or posttermination-hearing damages. 

28 Storrs v. State Med. Bd., 664 P.2d 547, 552 (Alaska 1983) (refusing to 

invalidate a statute when the defendant physician could not identify any instances of 

arbitrary enforcement by the State Board); see also Stock, 526 P.2d at 12 (“While we 

may be able to conceive of instances in which the statute could be arbitrarily and 

capriciously enforced, we cannot on the basis of such mere hypothesis, in the absence 

of any history of actual arbitrary application, invalidate the statute.”). 

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C.	 Providence Does Not Qualify For HCQIA Immunity With Respect To 

The Termination Of Dr. Brandner’s Privileges Without Notice And A 

Hearing. 

Congress enacted HCQIA to improve the quality of health care and reduce 

the number of incompetent physicians.29 Congress determined that both goals could be 

attained through “effective professional peer review.”30 Accordingly HCQIAeliminates 

some deterrents to effective professional peer review of physician competence by 

providing immunity from damages to “professional review bodies” and individuals 

acting in support of those bodies.31 Immunity under the act covers only liability for 

damages; it does not shield covered defendants from lawsuit or from other forms of 

relief.32 

For HCQIA to immunize Providence from damages resulting from a 

professional review action, the hospital must satisfy all four elements set forth in 

42 U.S.C. § 11112(a), providing: 

For purposes of the protection set forth in section 11111(a) of 

this title, a professional review action must be taken — 

(1) in the reasonable belief that the action was in the 

furtherance of quality health care, 

29 See 42 U.S.C. § 11101. 

30 Id. 

31 See id. § 11111(a)(1)-(2); see also 42 U.S.C. § 11151(11) (defining 

“professionalreviewbody”as “health careentity”),§ 11151(4)(A) (defining “health care 

entity” as licensed hospital); Decker v. IHC Hosps., Inc., 982 F.2d 433, 436 (10th Cir. 

1992) (exploring scope of immunity provided by § 11111(a)). 

32 42 U.S.C. § 11111(a)(1) (specifying immunity from damages only and not 

mentioning other relief); Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 35 

(1st Cir. 2002). 

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(2) after a reasonable effort to obtain the facts of the 

matter, 

(3) after adequate notice and hearing procedures are 

afforded to the physician involved or after such other 

procedures as are fair to the physician under the 

circumstances, and 

(4) in the reasonable belief that the action was 

warranted by the facts known after such reasonable 

effort to obtain facts and after meeting the requirement 

of paragraph (3). 

A professional review action shall be presumed to have met 

the preceding standards necessary for the protection set out 

in section 11111(a) of this title unless the presumption is 

rebutted by a preponderance of the evidence.[33] 

Federalcourts havegranted hospitals immunity under theAct whentheyclearlyestablish 

that “a full and fair peer review process was used” in connection with denying hospital 

privileges to a physician.34 Under HCQIA “a professional review body (including a 

hospital), its members, its staff, and others under contract with it are immune from 

damages liability with respect to the body’s actions.”35 Here there is no dispute that 

Providence is a “health care entity” contemplated by HCQIA,36 and its claim for 

protection arose from a peer review process for the purpose of furthering quality 

33 42 U.S.C. § 11112(a). 

34 Ezekwo v. Am. Bd. of Internal Med., 18 F. Supp. 2d 271, 277 (S.D.N.Y. 

1998), aff’d 174 F.3d 844 (2d Cir. 1999). 

35 Sobel v. United States, 571 F. Supp. 2d 1222, 1229 (D. Kan. 2008); see also 

Rodgers v. Columbia/HCA of Cent. La., Inc., 971 F. Supp. 229, 233 (W.D. La. 1997) 

(finding the hospital immune because it is a health care entity engaged in a professional 

review activity). 

36 See 42 U.S.C. § 11151(4)(A)(ii) (using the term “health care entity” to 

describe an organization like Providence). 

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healthcare. Dr. Brandner argues that Providence did not satisfy the notice and hearing 

prerequisite for immunity because he was not given notice or hearing prior to his 

termination.37 

Dr. Brandner’s rebuttal of Providence’s HCQIA immunity presumption 

focuses on § 11112(a)(3), requiring that a professional review action be taken “after 

adequate notice and hearing procedures are afforded to the physician involved or after 

such other procedures as are fair to the physician under the circumstances.” The superior 

court found Providence met § 11112(a)(3)’s requirement by providing Dr. Brandner 

“post-suspension, but pre-termination” fair hearing. But Dr. Brandner contends 

Providence did not provide him “adequate notice and hearing procedures” prior to 

terminating his hospital privileges, and thus HCQIA immunity cannot attach to 

Providence’s initial termination action. 

Providence claims that prior to its terminating Dr. Brandner’s hospital 

privileges he had waived his right to notice and hearing because he had agreed to be 

bound by hospital bylaws. But waivers cannot release a hospital from HCQIA 

requirements to achieve immunity. A Colorado Court of Appeals case is instructive. In 

Peper v. St. Mary’s Hospital & Medical Center a hospital took final action adverse to a 

doctor without providing notice that his conduct was under review.38 The hospital gave 

“no opportunity to be heard before revoking his privileges and reporting him to the state 

medical board and the national data bank,” and it never claimed any health emergency 

requiring the immediate suspension of his privileges.39 The hospital argued that because 

the doctor had agreed to be bound by its bylaws and because the bylaws did not provide 

37 See id. § 11112(a)(3), (b). 

38 207 P.3d 881, 888 (Colo. App. 2008). 

39 Id. 

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for notice and hearing prior to a final decision, the hospital had adequately met HCQIA’s 

notice and hearing requirement.40 But the court disagreed, holding that a hospital’s 

compliance with its bylaws may nonetheless be insufficient as a matter of law to meet 

HCQIA immunity requirements.41 Immunity attaches when the professional review 

action satisfies HCQIA requirements, regardless of the hospital’s own procedures.42 

Signing hospital bylaws did not waive the doctor’s right to adequate notice and hearing 

under HCQIA statutory provisions.43 The court concluded that the hospital failed to 

provide the doctor adequate notice and hearing under § 11112(a)(3), and thus it denied 

the hospital HCQIA immunity from the doctor’s claims.44 

The facts here are similar. Providence did not provide notice and hearing 

to Dr. Brandner before the executive committee considered and recommended 

terminating his hospital privileges at its June 13, 2011 committee meeting. Although 

notice, a hearing, and an appeal took place after the actual June 17 termination of 

Dr. Brandner’s privileges, these procedures are insufficient to satisfy § 11112(a)(3)’s 

requirement that adequate notice and hearing procedures must be afforded to the 

physician before the professional review action is taken. Providence could have 

provided some kind of notice and an opportunity for Dr. Brandner to be heard before 

June 17, 2011, but it did not. 

40 Id. at 884, 888. 

41 Id. at 888. 

42 Id. at 889. 

43 Id. at 888. 

44 Id. at 886-89. 

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Providence asserts that it nevertheless met § 11112(a)(3)’s requirements 

because Dr. Brandner was afforded “other procedures as are fair” under the 

circumstances when he received a hearing and an appeal after the termination of his 

privileges. But HCQIA specifies that a professional review action must be taken “after 

such other procedures as are fair to the physician under the circumstances.”45 The 

professional review action at issue is the June 17, 2011 termination of Dr. Brandner’s 

hospital privileges. This action took place before the hearing panel and the review 

committee proceedings. As in Peper, Dr. Brandner did not waive his right to the 

adequate notice and hearing required under HCQIA.46 Thus the hearing and the appeal 

provided after the termination cannot be construed as “other . . . fair” procedures 

satisfying § 11112(a)(3)’s notice and hearing requirement. And Providence conceded 

at oral argument that if it had violated Dr. Brandner’s due process rights in this context 

it was not entitled to HCQIA immunity. Accordingly, Dr. Brandner rebutted the 

presumption that this element of the four statutory requirements was met. 

Wethereforereversethesuperior court’s conclusion that HCQIAimmunity 

applies to the due process violation arising from terminating Dr. Brandner’s hospital 

privileges without proper notice and opportunity to be heard.47 We remand for further 

proceedings on Dr. Brandner’s claim for damages with respect to this due process 

violation.48 

45 42 U.S.C. § 11112(a)(3) (emphasis added). 

46 See Peper, 207 P.3d at 889. 

47 Because of this decision we do not need to address other HCQIA issues 

Dr. Brandner raised on appeal. 

48 See City of N. Pole v. Zabek, 934 P.2d 1292, 1299 (Alaska 1997) (awarding 

damages for period between wrongful termination and curative post-termination 

(continued...) 

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V. CONCLUSION 

We AFFIRM the superior court’s termination claim decision; we 

REVERSEthepre-termination noticeclaimdecision andREMANDto thesuperior court 

for further proceedings consistent with this decision. 

(...continued) 

hearing). 

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48