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October 2, 1996

JEROME CANADY, M.D., Plaintiff,
PROVIDENCE HOSPITAL, et al., Defendants.

James Robertson, United States District Judge

The opinion of the court was delivered by: ROBERTSON

After trial on July 22-24, 1996, and after considering the objections and suggested amendments of the parties to the Court's tentative findings of fact and conclusions of law, the Court makes the following findings of fact and conclusions of law:

 1. In September 1992, Jerome Canady, M.D., applied for a staff appointment at Providence Hospital in the District of Columbia. He was then chief surgical resident at McKeesport Hospital in Pennsylvania and was anticipating a return to Washington at the completion of his residency in June 1993. As part of his application, Dr. Canady filled out a form provided by the Providence Hospital department of surgery called a "privilege control list," checking off, by their medical names, the surgical procedures for which he wanted privileges.

 3. In June 1993, Dr. Canady was interviewed by Dr. Simmons. At this interview, Dr. Canady indicated that he was seeking privileges in general surgery, vascular surgery, thoracic surgery and endoscopic surgery, and he further indicated a strong interest in doing advanced laparoscopic procedures. Dr. Canady recalls that Dr. Simmons told him to "send in his numbers." Dr. Simmons recalls suggesting to Dr. Canady that he send in "his cases," including numbers, procedures, indications, results, and other details. After his meetings with Dr. Sanzaro and Dr. Simmons, Dr. Canady submitted a form listing his "operative experience," during the period June 1984 until June 1993. That report, which Dr. Canady maintained for the American Board of Surgery, showed the numbers of each surgical procedure he had attended or performed as first assistant, teaching assistant, surgeon in junior years of residency, and surgeon in chief year of residency. Dr. Canady submitted no additional information about his surgical experience.

 4. By letter of October 25, 1993 from Sister Carol Keehan, president of Providence Hospital, Dr. Canady was informed of his provisional appointment to the Providence department of surgery. The appointment letter was silent as to privileges. When Dr. Canady asked Sister Carol what privileges he had been granted, she said, "As far as I know you got everything you applied for."

 5. Dr. Canady considered his first operation at Providence a success, but he became upset by what he viewed as inadequacies in the intensive care unit and arranged for his patient's transfer to Howard University, where she died. After this event, Dr. Canady filed a patient incident report, and the Providence nursing supervisor filed a complaint of disruptive behavior by Dr. Canady and raised patient care issues. There followed a meeting among Drs. Simmons, Sanzaro, Canady and others on November 16, 1993. The purpose of the meeting was to "clarify impediments to integrated patient care at Providence by review of a patient incident report." Three days after that meeting, Dr. Sanzaro placed a handwritten note in Dr. Canady's hospital credentials file. The note read, "No thoracic. No vascular. No GYN. No urology. No general laparoscopic surgery other than lap choli."

 6. In early February 1994, Dr. Simmons learned, from a surgeon who had provided a second opinion in a case Dr. Canady had scheduled for surgery, that the other surgeon believed the case would require thoracic surgery. He informed Dr. Canady, by a letter sent Federal Express, that Providence would not schedule that patient with Dr. Canady as the primary surgeon. In the same letter, Dr. Simmons noted that Dr. Canady had scheduled another patient for a vascular procedure for which Dr. Canady did not have privileges. Dr. Canady testified that this letter, dated February 10, 1994, was his first notice that he had not been given thoracic privileges. He also testified that in January 1994 had had reviewed his credentials file and learned that he had not been given thoracic or vascular privileges.

 7. In April 1994, Dr. Canady retained counsel and pressed the hospital on the subject of his privileges. In a letter dated April 22, 1994, counsel asserted that, although Dr. Canady had been granted privileges to perform general surgery in October, he had not "received any further information since then concerning privileges to perform the other types of surgery for which he applied." The letter made a pointed reference to D.C. Code § 32-1307(f), which requires hospitals to act within 120 days on physicians' applications for privileges. The hospital's response to counsel's inquiry was delayed and bureaucratic. Providence had learned that Dr. Canady was mired in credentialing problems at Howard University and National Hospital for Orthopedics and Rehabilitation, and it was insisting that Dr. Canady provide information about his status at those other hospitals before responding to counsel's inquiry.

 8. In late June 1994 Dr. Simmons placed a "hold" order on an operation Dr. Canady had scheduled at Providence, effectively suspending Dr. Canady's privileges. Dr. Canady immediately brought suit to challenge that suspension, in Superior Court for the District of Columbia. The suit was withdrawn, and Dr. Canady's privileges were reinstated, after Dr. Canady agreed to furnish a written second opinion by noon on the working day before the day of surgery "for cases under the category thyroidectomy and for all major, elective gastro-intestinal cases." There were some difficulties and some misunderstandings about Dr. Canady's compliance with the agreed second opinion protocol.

 9. Immediately after withdrawing the lawsuit, Dr. Canady's counsel renewed the question of whether Dr. Canady was to be given privileges in laparoscopic and vascular surgery. In response, by letter of August 18, 1994, counsel for Providence finally set forth the hospital's formal position: that, although it knew through conversation and indirectly that Dr. Canady was interested in doing vascular surgery and advanced laparoscopy, it had never received a specific application for those privileges. Dr. Canady did not respond. *fn1"

 10. On February 20, 1995, a patient of Dr. Canady was admitted to Providence Hospital with an infected left leg and ischemic left foot. Midnight emergency surgery was scheduled, for which the operating room was specially staffed. After being told by his patient that an anesthesiologist had commented in her hearing that the leg should be amputated, and after an ensuing argument with the anesthesiologist, however, Dr. Canady ordered the patient transferred to Howard University Hospital.

 11. The February 20 incident was the triggering event for a formal request for "corrective action," which was filed by Dr. Simmons, the vice president for medical affairs. Corrective actions are provided for by the bylaws of the medical-dental staff of Providence "whenever the activities or professional conduct of any practitioner . . . with clinical privileges are considered to be lower than the standards or aims of the Medical-Dental Staff or to be disruptive to the operations of the Hospital. . . ." Article VII, § 1A. As provided by the bylaws, the chairman of the department of surgery appointed an ad hoc committee to investigate and report to the Executive Committee.

 12. In compliance with Article VII, § 1C of the bylaws Dr. Canady was invited to meet with the ad hoc committee and was informed that the request for corrective action related to allegations of his inability to use the support services and the medical dental staff at Providence Hospital to facilitate the safe management of his patients, and to violations of his agreement to provide second opinions on major elective gastro-intestinal cases. Detailed minutes were kept. After the interview, the ad hoc committee concluded that the allegations were substantiated and posed a threat to patients and recommended Dr. Canady's summary suspension. *fn2"

 13. The ad hoc committee made its recommendation to the chairman of the department of surgery and executive committee on March 7, 1995. The chief (president) of the medical staff formally advised Dr. Canady the next day that he had been summarily suspended and that, under Article VII, § 2 of the bylaws, he was entitled to request that the Executive Committee review the suspension.

 15. A formal hearing was then held, by a duly appointed committee of eight physicians, on the record and fully transcribed, on June 8 and June 14, 1995. Dr. Canady was represented by counsel and was provided, in advance of the hearing, all of the documents that were considered by the committee.

 16. On June 16, 1995, the chairman of the hearing committee reported to the executive committee its decision to uphold the recommendations of the executive committee imposing summary suspension and ...

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