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Zizza v. Kent County Memorial Hospital

Superior Court of Rhode Island, Kent

October 17, 2018

VINCENT ZIZZA, D.O.
v.
KENT COUNTY MEMORIAL HOSPITAL

          For Plaintiff: Armando E. Bastini, Esq.; Stephen D. Zubiago, Esq.

          For Defendant: Robert M. Duffy, Esq.; Christian R. Jenner, Esq.

          DECISION

          MCGUIRL, J.

         This case is before the Court on Plaintiff Vincent Zizza, D.O.'s (Dr. Zizza) Motion for Temporary Restraining Order and Preliminary Injunction enjoining Defendant Kent County Memorial Hospital (Kent Hospital or the Hospital) from continuing its revocation of Dr. Zizza's Medical Staff privileges. Jurisdiction is pursuant to G.L. 1956 § 8-2-13.

         I

         Facts and Travel

         Prior to March 14, 2018, Dr. Zizza was a surgical staff member at Kent Hospital. On that day, Dr. Zizza performed a wrong-site surgery (the Incident), incising the left side of a patient's abdomen when a right-sided nephrectomy was supposed to be performed.[1] (Def.'s Ex. A, Pinkes' Aff. ¶ 3.) The Incident came to the Hospital's attention through its reporting process.

         On March 15, 2018, Kent Hospital's Interim President, Sherry Nelson, became aware of Dr. Zizza's error. Ms. Nelson reviewed the circumstances surrounding the matter and discussed the Incident with the Hospital's President of Medical Staff and the President of Care New England Health Systems. Thereafter, Ms. Nelson informed Dr. Zizza that his Medical Staff privileges (privileges) at Kent Hospital were suspended pending peer-review.

         On March 16, 2018, Dr. Zizza received written notice that the Hospital was assembling a Medical Executive Committee (MEC) subcommittee to review the Incident. (Pinkes' Aff. ¶ 5.) The MEC subcommittee convened on March 20, 2018, and reviewed only the facts and circumstances surrounding the Incident.[2] (Pinkes' Aff. ¶ 6.) Dr. Zizza attended the hearing and was interviewed by the subcommittee and given an opportunity to provide his position on the Incident. Id. As a result of that review, the MEC subcommittee recommended that Dr. Zizza's privileges be suspended for thirty days, followed by six months of proctoring, effective March 15, 2018. Id.

         Shortly thereafter, the full MEC convened and was presented with the facts and circumstances regarding the Incident as well as the subcommittee's recommendation. (Pinkes' Aff. ¶ 7.) The MEC voted to adopt the subcommittee's recommendation and conduct a complete review of Dr. Zizza's credentialing file to determine whether further corrective action was necessary. Id. The MEC informed Dr. Zizza of its decision by letter on April 6, 2018. (Pinkes' Aff. ¶¶ 8-9.)

         Following its decision, the MEC assigned Dr. Pinkes-a member of Kent Hospital's medical staff as well as a member of the MEC-to review Dr. Zizza's credentialing file and present a summary of his findings to the MEC. (Pinkes' Aff. ¶¶ 1, 10-11.) On April 9, 2018, the MEC convened for a special meeting, at which Dr. Pinkes presented a summary of Dr. Zizza's credentialing file. During that presentation, the MEC learned that Dr. Zizza's file contained multiple quality, safety, and disciplinary actions.[3] Id. Dr. Pinkes concluded the presentation with a recommendation that the MEC revoke Dr. Zizza's privileges. Id. The MEC accepted that recommendation and unanimously voted to revoke Dr. Zizza's privileges in the interest of patient safety and orderly running of the Hospital. (Pinkes' Aff. ¶ 12.)

         Later that day, the Kent Hospital President and the Medical Staff President met with the Care New England Chief Executive Officer, Dr. James Fanale, and a member of the Care New England Board of Directors (the Board) to discuss the MEC's vote. (Def.'s Ex. B, Fanale's Aff. ¶¶ 3-4.) The Board held a special meeting to review the matter on April 12, 2018. Id. At that meeting, the Board reviewed MEC's initial suspension of Dr. Zizza's privileges, its subsequent credentialing file review, documents that the MEC had not reviewed, and the MEC's vote to revoke Dr. Zizza's privileges. (Fanale's Aff. ¶ 5.) The Board subsequently voted to revoke Dr. Zizza's privileges immediately, subject to Dr. Zizza's right to a hearing. Id. On April 12, 2018, the Board sent a letter to Dr. Zizza, detailing its decision to revoke his privileges "[i]n light of [Dr. Zizza's] history of quality, safety and disciplinary violations as reflected in [his] credentialing file and [the] latest serious breach of protocol." (Fanale's Aff. ¶ 6; Def.'s Ex. A, Revocation Letter, Apr. 12, 2018.) That letter also explained: "Pursuant to Article X, Part B, Preamble and Section 7 [of the Hospital's Bylaws], the fact that [] disciplinary action is taken by the Board does not impact your due process hearing rights under the Bylaws, all of which are maintained." Id.

         On May 8, 2018, Dr. Zizza requested a hearing on the Board's decision. (Pinkes' Aff. ¶ 16.) The Hospital informed Dr. Zizza in a letter dated May 25, 2018 that it formed a committee of medical staff members (the hearing committee) to conduct the requested hearing. Id. That hearing was scheduled for June 25, 2018.[4] Id. ¶ 17.

         II

         Standard of Review

         Rule 65 of the Superior Court Rules of Civil Procedure provides this Court with the authority to grant temporary restraining orders and preliminary injunctive relief. Super. R. Civ. P. 65. The Rhode Island Supreme Court has established the standard for granting such relief. See Vasquez v. Sportsman's Inn, Inc., 57 A.3d 313, 318 (R.I. 2012). Moreover, our Supreme Court has also determined that "[a] decision to grant or deny . . . injunctive relief is addressed to the sound discretion of the trial justice . . . ." Hagenberg v. Avedesian, 879 A.2d 436, 441 (R.I. 2005).

         When reviewing a motion for temporary injunctive relief, this Court must consider '"whether the moving party (1) has a reasonable likelihood of success on the merits, (2) will suffer irreparable harm without the requested injunctive relief, (3) has the balance of the equities, including the possible hardships to each party and to the public interest, tip in its favor, and (4) has shown that the issuance of a preliminary injunction will preserve the status quo."' Vasquez, 57 A.3d at 318 (citing Iggy's Doughboys, Inc. v. Giroux, 729 A.2d 701, 705 (R.I. 1999)); see also Martin v. Lincoln Bar, Inc., 622 A.2d 464, 469 (R.I. 1993) (establishing that a party moving for a temporary restraining order must meet the same four requirements as a motion for a preliminary injunction).

         Furthermore, when considering whether a party has a reasonable likelihood of success on the merits, the Court need not be certain of a party's success; rather, a party must only put forth a prima facie case. Fund for Cmty. Progress v. United Way of Se. New England, 695 A.2d 517, 521 (R.I. 1997). "Prima facie evidence is that amount of evidence that, if unrebutted, is sufficient to satisfy the burden of proof on a particular issue." Paramount Office Supply Co., Inc. v. D.A. MacIsaac, Inc., 524 A.2d 1099, 1101 (R.I. 1987). Additionally, "[w]hen a preliminary injunction is mandatory in nature in-that it commands action from a party rather than preventing action-a stricter rule applies and such injunctions should be issued only upon a showing of 'very clear' right and 'great urgency.'" King v. Grand Chapter of R.I. Order of E. Star, 919 A.2d 991, 995 (R.I. 2007) (quoting Giacomini v. Bevilacqua, 118 R.I. 63, 65, 372 A.2d 66, 67 (1977)).

         III

         Analysis

         In his motion for temporary injunctive relief, Dr. Zizza asks this Court to enjoin Kent Hospital from continuing its revocation of his privileges. However, through his arguments, it is clear that Dr. Zizza's request effectively asks that this Court reinstate his suspended privileges. The initial thirty-day suspension of Dr. Zizza's privileges has expired. If this Court were to grant Dr. Zizza's request for a preliminary injunction, the Court would be issuing an injunction that is mandatory in nature by ordering Kent Hospital to rescind its revocation of Dr. Zizza's privileges, which in turn would have the effect of reinstating his privileges, as he is no longer suspended. Therefore, this Court must ultimately determine whether it should grant a mandatory injunction, requiring Kent Hospital to reinstate Dr. Zizza's privileges.

         Rule 65 of the Rhode Island Superior Court Rules of Civil Procedure grants this Court the authority to issue temporary restraining orders and preliminary injunctions. Super. R. Civ. P. 65. The Rhode Island Supreme Court has determined that a party seeking a temporary restraining order or preliminary injunction must show that he or she "(1) has a reasonable likelihood do success on the merits, (2) will suffer irreparable harm without the requested injunctive relief, (3) has the balance of the equities, including the possible hardships to each party and to the public interest, tip in its favor, and (4) has shown that the issuance of a preliminary injunction will preserve the status quo." Vasquez, 57 A.3d at 318 (citing Iggy's Doughboys, Inc., 729 A.2d at 705). As previously stated, with respect to mandatory injunctions, our Supreme Court has stated: "When a[n] [] injunction is mandatory in nature in-that it commands action from a party rather than preventing action-a stricter rule applies and such injunctions should be issued only upon a showing of 'very clear' and 'great urgency.'" King, 919 A.2d at 995. This Court will address each requirement in seriatim.

         A

         Likelihood of Success on the Merits

         In support of his motion for temporary injunctive relief, Dr. Zizza argues that he has a reasonable likelihood of success on the merits as Kent Hospital's revocation of his privileges violated the Rhode Island Health Care Facility Licensing Act, G.L. 1956 §§ 23-17-1 et seq., the federal Health Care Quality Improvement Act (HCQIA), Kent Hospital's Bylaws, and Dr. Zizza's common law right to due process. Alternatively, Kent Hospital asserts that Dr. Zizza is not likely to succeed on the merits, because Dr. Zizza failed to establish "great urgency" and exhaust all administrative remedies. Moreover, Kent Hospital maintains that it did not violate state or federal law, the Hospital's Bylaws, or Dr. Zizza's right to due process.

         For this Court to grant temporary injunctive relief, "[t]he moving party must [] show that it has a reasonable likelihood of succeeding on the merits of its claim at trial." Fund for Cmty. Progress, 695 A.2d at 521 (citing In re State Employees' Unions, 587 A.2d 919 (R.I. 1991)). Our Supreme Court has indicated that it does "not require a certainty of success." Id. (citing Coolbeth v. Berberian, 112 R.I. 558, 564, 313 A.2d 656, 660 (1974)). Instead, it requires "only that the moving party make out a prima facie case." Id. (citing Coolbeth, 112 R.I. at 564, 313 A.2d at 660).

         1

         Rhode Island Health Care Facility Licensing Act Violation

         First, Dr. Zizza asserts that Kent Hospital violated § 23-17-23 of the Rhode Island Health Care Facility Licensing Act, which governs "the maintenance and operation of health care facilities in Rhode Island." See §§ 23-17-1 et seq. The Rhode Island Supreme Court has continuously held: '"[W]hen the language of a statute is clear and unambiguous, [a] [c]ourt must interpret the statute literally and must give the words of the statute their plain and ordinary meanings."' Iselin v. Ret. Bd. of Emps.' Ret. Sys. of Rhode Island, 943 A.2d 1045, 1049 (R.I. 2008) (quoting Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996)). Alternatively, the Court must "examine the statute in its entirety in order to 'glean the intent and purpose of the Legislature.'" State v. Peterson, 722 A.2d 259, 264 (R.I. 1998) (quoting In re Advisory to the Governor, 668 A.2d 1246, 1248 (R.I. 1996)).

         Section 23-17-23(a), provides:

"The board of trustees of a hospital or other appropriate body licensed pursuant to the laws of the state is authorized to suspend, deny, revoke, or curtail the staff privileges of any staff member for good cause . . . . The procedures for these actions shall comply with the procedures, if any, that may from time to time be outlined by the joint commission for accreditation of hospitals." Sec. 23-17-23(a).

         Based on the plain and unambiguous language of § 23-17-23(a), Kent Hospital's disciplinary procedures must comply with the Joint Commission for the Accreditation of Hospitals' Comprehensive Accreditation Manual Standards (Joint Commission Standards). The Joint Commission Standards 10.01.01 discusses the rationale behind implementing "fair hearing and appeal processes . . . ."[5]

         These Standards identify the characteristics of a fair hearing and appeals process that accredited hospitals must implement into their bylaws. Kent Hospital is an accredited hospital.[6](Pinkes' Aff. ΒΆ 21.) Kent Hospital's accreditation was most recently renewed in 2016; however, the Hospital's accreditation has ...


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