By: Richard B. Willner
Executive Director
The Center For Peer Review Justice

Prior to moving to Las Vegas, Nevada in 2008, Dr C was a renowned minimally invasive gynecological surgeon at Baylor University in Texas. In May of 2008, the University Medical Center of Southern Nevada, where he was an assistant professor, abruptly suspended his clinical privileges without notice or hearing. The action was described as a “routine administrative action” and not a 30 day emergency action based on immanent harm to patients. His university employment terminated because of the loss of his privileges. The university hospital forwarded a report of the suspension to the National Practitioner Data Bank in Washington asserting that the suspension resulted from “substandard or inadequate care.” Subsequently the “fair hearing” panel hearing his case disagreed with the grounds for the suspension and sent a recommendation to the Medical Executive Committee that his suspension be lifted and it was, in October, 2008.

Dr. C, suitably annoyed, sued some folks in Clark County, Nevada in the U.S. District Court. The University Medical Center of Clark County Nevada is a political subdivision of Clark County. In Chudacoff v. University Medical Center of Southern Nevada, the District Court ruled that UMCSN violated Dr. Chudakoff’s due process rights and that they were not entitled to immunity. This case obtained a great deal of notoriety because of the findings related to the lack of immunity. This is true.

On appeal to the U.S. Court of Appeals for the 9th Circuit, the appellate court found that the individual private doctors involved in the suspension were potentially liable under the Civil Rights Act, but that everybody else, including the county commissioners, the hospital trustees, the hospital administrators, etc. were not actively involved in what happened to Dr. Chudacoff and the action was not a result of hospital mandated policy. The opinion, Chudacoff v. University Medical Center, subsequently resulted in the District Court ordering the hospital to withdraw the report it submitted to the National Practitioner Data Bank. Again, this was the proper thing to do.

In July, 2011 the 9th Circuit Court of Appeals issued a memorandum opinion affirming the dismissal of Dr. Chudacoff’s state law claims for defamation and negligence per se. Why? The doctor won the Fair Hearing, there should be no immunity and the Data Banking should be deleted.
The court found that the data bank report was mandated by federal law and the hospital in reporting it had not acted in bad faith and the act was therefor privileged. It further found that more than a violation of due process rights was required to establish a wide duty under a theory of negligence. WTF?

Dr. Chudacoff and his attorneys were busy amending his complaint to include more legally satisfying claims for damages under his civil rights claim. He requested damages for emotional harm and for exemplary damages for bad faith breach of contract theory. Unfortunately, there is a statutory “tort reform” limit on damages for tort claims in Nevada. There is no claim for emotional damages in contract actions in Nevada and exemplary damages is a statutory egregious tort remedy. On February 28, 2012, the District Court granted a “Motion for Summary Judgment” which it chose to deal with as a motion in limine to limit Dr. Chudacoff’s damages to $75,000.00 under the state statute.

Bottom line? No justice.