      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.,                         )
                                                   )    Supreme Court No. S-15933
                      Appellant,                   )
                                                   )    Superior Court No. 3AN-13-07697 CI
      v.                                           )
                                                   )    OPINION ON REHEARING
PROVIDENCE HEALTH &                                )
SERVICES — WASHINGTON,                             )    No. 7172 – May 19, 2017
                                                   )
                      Appellee.                    )
                                                   )

              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, Chief Justice, 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 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.
              We affirmthe superior court’s decision concerning the substantive standard
applied to terminate Dr. Brander; he therefore is not entitled to reinstatement or post-
termination-hearing damages. But Dr. Brandner’s due process rights were violated by
the procedures Providence employed because he was not given any opportunity to be
heard prior to the termination of his hospital privileges; we therefore reverse the superior
court’s decision on the pre-termination hearing claim and 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. Providence also gave Dr. Brandner a six-month exemption from
emergency call duties. In November 2010 Providence reinstated Dr. Brandner’s hand
surgery privileges after reviewing his surgical cases and finding him competent, 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
that he had contacted someone in the Governor’s office and made a threat involving a

                                            -2-                                       7172

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 professional conduct are governed by Providence policy
MS 980-100, referred to as the Investigation, Hearing, and Appeals Plan (Fair Hearing

                                             -3-                                        7172

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 the Providence Alaska Community Ministry
Board (Providence Board) on granting, limiting, suspending, or terminating hospital
privileges. The executive committee’s recommendations generally 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 rejection of the hearing bodies’ recommendations
becomes Providence’s final decision.
             In January 2011 the executive committee called 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.
             Kim Pakney, Providence’s medical staff services manager, called
Dr. Brandner in March to arrange the evaluation. During this call Dr. Brandner disclosed

                                          -4-                                     7172

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 later 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 as of June 17,
before any hearing took place, Dr. Brandner was not allowed to practice at Providence.



                                            -5-                                       7172

       B.      Proceedings
               1.    Providence Fair Hearing Panel proceedings
               In November 2011 Dr. Brandner received a one-day hearing before a three-
doctor 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,
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

                                           -6-                                      7172

unanimously upheld the executive committee’s June 2011 recommendation and the
Providence Board’s June 2011 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
Appellate Review Committee (review committee) pursuant to the Fair 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 re­
weigh the evidence. The review committee concluded that the hearing panel’s actions
complied with Providence’s Fair Hearing Plan, were not arbitrary or capricious, and were
supported by substantial evidence. It recommended that the Providence Board “confirm”
the executive committee’s June 2011 recommendation that Dr. Brandner’s privileges be
terminated. 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. And 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



                                            -7-                                      7172

adding some “interpretive guidance to illustrate the types of limitations, restrictions, and
conditions that are intended to be included.”
              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



       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.

                                            -8-                                       7172

that AS 18.23.020 immunized them from suit.3 The court also granted summary
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 a pre-termination opportunity to be heard is a due process
violation; (2) the post-hearing termination confirmation 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
             We later affirmed this decision in Brandner v. Bateman, concluding that
“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).

                                            -9-                                      7172

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 Procedural Due Process Rights Were Violated When
              His Hospital Privileges Were Terminated Without A Pre-Termination
              Opportunity To Be Heard.
              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 The specific issue presented involves the due process
right to an opportunity to be heard prior to terminating hospital privileges. Although the
parties consistently describe this as “pretermination hearing” and we use that language
throughout our opinion, we do not mean to suggest that the opportunity to be heard
necessarily involves a formal hearing like that set forth in Providence’s Fair Hearing Plan
and made available to Dr. Brandner after his hospital privileges were terminated. This
dispute does not raise the question of what kind of pretermination hearing — more




       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).

                                           -10-	                                     7172

specifically what kind of opportunity to be heard — must be provided to meet due
process concerns.
             1.	    Dr. Brandner did not waive his right to a pre-termination
                    opportunity to be heard.
             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
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



      7
              See Storrs v. Municipality of Anchorage, 721 P.2d 1146, 1150 (Alaska
1986) (providing collective bargaining agreement may alter covered employees’ pre­
termination 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-	                                    7172

requirement of abiding by the hospital’s policy to obtain privileges is more akin to a
contract of adhesion.
              Providence cites Whitaker v. Houston County Hospital 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
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 “no language in [Dr. Brandner’s application for privileges] referencing
a general right to due process or dealing specifically with a physician’s right to . . . a pre­
termination 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.




       11
              613 S.E.2d 664, 671-72 (Ga. App. 2005).
       12
              Id. at 667.

                                             -12­                                        7172
             2.	    Due process required that Dr. Brandner receive 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
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


      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)).
      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).

                                          -13-	                                   7172

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
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 high quality 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.”

       17
              McMillan v. Anchorage Cmty. Hosp., 646 P.2d 857, 864 (Alaska 1982).
       18
              42 U.S.C. §§ 11133, 11136; 45 C.F.R. § 60.1 (2013).
       19
              McMillan, 646 P.2d at 866.

                                           -14-                                      7172

              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
followed when terminating Dr. Brandner’s privileges.20 As Pakney noted at the
November 2011 hearing, there was no precautionary suspension because there was 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 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’s determination that the
connection between Dr. Brandner’s “dishonesty” and patient safety was sufficient to
override Dr. Brandner’s due process right, and we conclude that Providence violated
Dr. Brandner’s right to due process by terminating his hospital privileges without a pre­
termination opportunity to be heard.

       20
             Cf. 42 U.S.C. § 11112(c)(2) (providing HCQIA immunity safe harbors for
action taken to prevent “imminent danger to the health of any individual,” subject to
post-suspension notice and hearing protections).

                                           -15-                                       7172

      B.	    Dr. Brandner’s Substantive Due Process Rights Were Not Violated
             Through Arbitrary And Capricious Application Of An Ambiguous
             Hospital Policy.
             Dr. Brandner further claims that his substantive due process rights were
violated because Providence policy MS 980-150(D) is vague and ambiguous, and that
Providence 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 experience necessary to qualify for hospital privileges, courts may 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.21 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
arbitrary and capricious manner.22 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.”23 “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.”24
Accordingly the inquiry before us is not whose policy interpretation is more reasonable,

      21
             Kiester v. Humana Hosp. Alaska, Inc., 843 P.2d 1219, 1223 (Alaska 1992).
      22
             Id.
      23
             Id. at 1225.
      24
             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)).

                                          -16-	                                     7172

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.25
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.26 And here the superior court found that Dr. Brandner had more than


       25
              See AS 08.64.326(a) (requiring a hearing before imposing sanctions);
AS 08.64.331(a)(6) (describing sanctions State Board may impose, including “limitations
or conditions on the practice of a licensee”). Dr. Brandner’s argument rests on the theory
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), a statute setting out State Board procedures. And the hospital policy
does not mention the statute.
       26
              Roberts, 129 Fed. Appx. at 86; see Gottschalk v. State, 575 P.2d 289, 290
                                                                          (continued...)

                                            -17-                                       7172

“fair notice” of what MS 980-150 required; it found 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 knew the self-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 affirm the superior court’s determination that the policy’s
application was clear to Dr. Brandner.
             2.     The policy was not applied arbitrarily or capriciously.27
             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.28 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 evidence that Providence had 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



      26
            (...continued)
(Alaska 1978).
      27
              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).
      28
             See Stock v. State, 526 P.2d 3, 8, 12 (Alaska 1974).

                                          -18-                                      7172

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
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.”29 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
of Providence arbitrarily enforcing MS 980-150. And the Providence review committee,
in its letter to the Providence Board recommending review of the policy, wrote that the

       29
              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.”).

                                           -19-                                       7172

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 applying the
policy in terminating Dr. Brandner’s hospital privileges violated his substantive due
process rights.     Dr. Brandner therefore is not entitled to reinstatement or post-
termination-hearing damages.
       C.	    Providence Does Not Qualify For HCQIA Immunity With Respect To
              The Termination Of Dr. Brandner’s Privileges Without An
              Opportunity To Be Heard.
              Congress enacted HCQIA to improve the quality of health care and reduce
the number of incompetent physicians.30 Congress determined that both goals could be
attained through “effective professional peer review.”31 Accordingly HCQIA eliminates
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.32 Immunity under the act covers only liability for




       30
              See 42 U.S.C. § 11101.
       31
              Id.
       32
               See id. § 11111(a)(1)-(2); see also 42 U.S.C. § 11151(11) (defining
“professional review body” as “health care entity”), § 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)).

                                           -20-	                                         7172

damages; it does not shield covered defendants from lawsuit or from other forms of
relief.33
             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,
                    (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.[34]
Federal courts have granted hospitals immunity under the Act when they clearly establish
that “a full and fair peer review process was used” in connection with denying hospital



        33
              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).
        34
             42 U.S.C. § 11112(a).

                                          -21-                                     7172

privileges to a physician.35 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.”36 Here there is no dispute that
Providence is a “health care entity” contemplated by HCQIA,37 and its claim for
protection arose from a peer review process for the purpose of furthering quality
healthcare. Dr. Brandner argues that Providence did not satisfy the notice and hearing
prerequisite for immunity because he was not given a hearing prior to his termination.38
             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




      35
              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).
      36
              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).
      37
             See 42 U.S.C. § 11151(4)(A)(ii) (using the term “health care entity” to
describe an organization like Providence).
      38
             See id. § 11112(a)(3), (b).

                                           -22-                                    7172

terminating his hospital privileges, and thus HCQIA immunity cannot attach to
Providence’s initial termination action.39

       39
               In its petition for rehearing Providence argues that the superior court made
a factual finding that Dr. Brandner was not terminated in June 2011 but rather was only
suspended pending the pre-termination fair hearing process. Providence argues that
unless this unappealed finding is clearly erroneous, we must conclude that
Dr. Brandner’s privileges were not terminated until the Board affirmed the decision of
the fair hearing appellate panel. It is not clear that there would be any difference in the
due process and HCQIA analyses if Dr. Brandner’s privileges had been suspended rather
than terminated without an opportunity to be heard. Cf. id. § 11112(c)(1)(B) (providing
HCQIA safe harbor for 14-day investigatory suspensions, thereby implicitly
contemplating immunity might not attach for longer suspensions). Regardless, we
conclude that any such putative finding by the superior court is clearly erroneous. See
Baker v. Ryan Air, Inc., 345 P.3d 101, 106 (Alaska 2015) (“We review factual findings
for clear error . . . . ‘A factual finding is clearly erroneous if, after reviewing the record
in the light most favorable to the prevailing party, we are definitely and firmly convinced
that the finding is mistaken.’ ” (footnote omitted) (quoting Simone H. v. State, Dep’t of
Health & Soc. Servs., Office of Children’s Servs., 320 P.3d 284, 288 (Alaska 2014))).
              The policy Providence relied upon calls for the automatic termination of
privileges, not suspension; as discussed earlier Providence did not rely on its policy
calling for an immediate “precautionary suspension” of privileges for patient safety
concerns. At the November fair hearing Providence’s counsel told the hearing panel that
in June 2011 the executive committee had recommended “that [Dr. Brandner’s]
privileges were to be automatically terminated” and that in June 2011 the Providence
Board “affirmed” that recommendation. Pakney then testified at the hearing exactly as
Providence’s counsel had described the sequence of events. The fair hearing panel then
stated the same sequence of events in its written decision and concluded that the prior
decision to automatically terminate Dr. Brandner’s privileges under the Providence
policy was “not arbitrary, capricious, or unsupported by substantial evidence.” The fair
hearing appellate panel similarly stated that the executive committee had concluded that
“automatic termination” of Dr. Brandner’s privileges was warranted and the Board
“affirmed” the executive committee’s recommendation, and, after considering the fair
hearing panel’s report, recommended that the executive committee recommendation be
confirmed by the Board. Providence points to no part of the record for the fair hearing
process reflecting an argument or position by Providence that Dr. Brandner’s privileges
                                                                           (continued...)

                                             -23-                                       7172

             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 and policies. 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.40
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.41 The
hospital argued that because the doctor had agreed to be bound by its bylaws and because
the bylaws did not provide for notice and hearing prior to a final decision, the hospital




      39
             (...continued)
had actually not been terminated in June 2011.
              Moreover this argument is completely contrary to the main thrust of
Providence’s position in its briefing: that there was nothing wrong with automatically
terminating Dr. Brandner’s privileges in conformance with its policy and that the post-
termination fair hearing process satisfied any due process concerns and entitled
Providence to HCQIA immunity. Indeed, the headings and related arguments in
Providence’s brief regarding the due process issue all use a formulation that due process
“did not require a pre-termination hearing.” And Providence explicitly states in its brief
that “Dr. Brandner’s privileges were terminated subject to his right to fully participate
in the Fair Hearing process,” Dr. Brandner “was not entitled to a pre-termination hearing
given the explicit language of MS 980-150,” and the result of the fair hearing process
was to “affirm[] the application of MS 980-150’s automatic sanction.” We therefore
reject this new argument in Providence’s petition for rehearing.
      40
             207 P.3d 881, 888 (Colo. App. 2008).
      41
             Id.

                                          -24-                                      7172

had adequately met HCQIA’s notice and hearing requirement.42 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.43 The court concluded that
immunity attaches when the professional review action satisfies HCQIA requirements,
regardless of the hospital’s own procedures,44 and that signing hospital bylaws did not
waive the doctor’s right to adequate notice and hearing under HCQIA statutory
provisions.45 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.46
             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 on
June 17 Providence gave Dr. Brandner notice of the executive committee’s
recommendation and of his right to a hearing, the Providence Board affirmed the
executive committee’s recommendations a few days later without giving Dr. Brandner
any opportunity to be heard. And although appeal hearings took place after the actual
termination of Dr. Brandner’s privileges, these procedures are insufficient to satisfy
§ 11112(a)(3)’s requirement that adequate hearing procedures must be afforded to the
physician before the professional review action is taken. Providence could have


      42
             Id. at 884, 888.
      43
             Id. at 888.
      44
             Id. at 889.
      45
             Id. at 888.
      46
             Id. at 886-89.

                                          -25-                                     7172

provided some kind of opportunity for Dr. Brandner to be heard between June 17 and the
Providence Board’s affirmation of the termination recommendation a few days later, but
it did not.
              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.”47 The
professional review action at issue is the June termination of Dr. Brandner’s hospital
privileges. This action took place before the November hearing panel and the later
appellate review committee proceedings. As in Peper, Dr. Brandner did not waive his
right to the adequate notice and hearing required under HCQIA.48 Thus the hearing and
the appeal provided after the termination cannot under the facts of this case be construed
as “other . . . fair” procedures satisfying § 11112(a)(3)’s notice and hearing requirement.
Accordingly, Dr. Brandner rebutted the presumption that this element of the four
statutory requirements was met.
              In its petition for rehearing Providence argues for the first time that it is
entitled to HCQIA immunity for its failure to provide Dr. Brandner a pre-termination
opportunity to be heard based on § 11112(b)’s49 “safe harbor” provisions


       47
              42 U.S.C. § 11112(a)(3) (emphasis added).
       48
              See Peper, 207 P.3d at 889.
       49
              This section provides:
              (b) Adequate notice and hearing
                     A health care entity is deemed to have met the
                                                                   (continued...)

                                            -26-                                     7172

49
     (...continued)

     adequate notice and hearing requirement of subsection (a)(3)

     [of this section] with respect to a physician if the following

     conditions are met (or are waived voluntarily by the

     physician):

      (1) Notice of proposed action
           The physician has been given notice stating –
           (A)(i) that a professional review action has been
           proposed to be taken against the physician,
           (ii) reasons for the proposed action,
           (B)(i) that the physician has the right to request
           a hearing on the proposed action,
           (ii) any time limit (of not less than 30 days)
           within which to request such a hearing, and
           (C) a summary of the rights in the hearing
           under paragraph (3).
      (2) Notice of hearing
            If a hearing is requested on a timely basis under

     paragraph (1)(B), the physician involved must be given

     notice stating –

           (A) the place, time, and date, of the hearing,
           which date shall not be less than 30 days after
           the date of the notice, and
           (B) a list of the witnesses (if any) expected to
           testify at the hearing on behalf of the
           professional review body.
      (3) Conduct of hearing and notice
           If a hearing is requested on a timely basis under
     paragraph (1)(B) –
                                                            (continued...)

                                 -27-                                  7172

49
     (...continued)
            (A) subject to subparagraph (B), the hearing
            shall be held (as determined by the health care
            entity) –
           (i) before an arbitrator mutually acceptable to
           the physician and the health care entity,
           (ii) before a hearing officer who is appointed by
           the entity and who is not in direct economic
           competition with the physician involved, or
           (iii) before a panel of individuals who are
           appointed by the entity and are not in direct
           economic competition with the physician
           involved;
           (B) the right to the hearing may be forfeited if
           the physician fails, without good cause, to
           appear;
           (C) in the hearing the physician involved has
           the right –
           (i) to representation by an attorney or other
           person of the physician’s choice,
           (ii) to have a record made of the proceedings,
           copies of which may be obtained by the
           physician upon payment of any reasonable
           charges associated with the preparation thereof,
           (iii) to call, examine, and cross-examine
           witnesses,
           (iv) to present evidence determined to be
           relevant by the hearing officer, regardless of its
           admissibility in a court of law, and
           (v) to submit a written statement at the close of
                                                                (continued...)

                                 -28­                                   7172
(other than the waiver provision) and numerous federal court decisions Providence
asserts have interpreted those provisions as allowing post-termination hearings to satisfy
HCQIA. But Dr. Brandner does not argue that some sort of deficiency in Providence’s
fair hearing process precludes HCQIA immunity for Providence; Dr. Brandner argues
that the failure to give him the slightest opportunity to be heard prior to terminating his
privileges — as required by § 11112(a)(3) — precludes HCQIA immunity for
Providence. The § 11112(b) safe harbor provisions do not appear to give Providence the
protection it seeks. And the cases Providence cites do not support its position. The
majority of those cases fall under the HCQIA safe harbor provisions for investigatory
suspensions and actions taken to avoid “imminent danger to the health of any individual”
contained in § 11112(c),50 either explicitly or implicitly.51



       49
              (...continued)
                     the hearing; and
                     (D) upon completion of the hearing, the
                     physician involved has the right –
                     (i) to receive the written recommendation of the
                     arbitrator, officer, or panel, including a
                     statement of the basis for the recommendations,
                     and
                     (ii) to receive a written decision of the health
                     care entity, including a statement of the basis
                     for the decision.
                     A professional review body’s failure to meet the

              conditions described in this subsection shall not, in itself,

              constitute failure to meet the standards of subsection (a)(3)

              [of this section].

       50
              This section provides:
                                                                            (continued...)

                                           -29-                                      7172

      50
             (...continued)
              (c) Adequate procedures in investigations or health emergencies
                    For purposes of section 11111(a) of this title, nothing in this section
             shall be construed as –
                    (1) requiring the procedures referred to in subsection
                    (a)(3) of this section –
                    (A) where there is no adverse profession review action
                    taken, or
                    (B) in the case of a suspension or restriction of clinical
                    privileges, for a period of not longer than 14 days,
                    during which an investigation is being conducted to
                    determine the need for a professional review action; or
                    (2) precluding an immediate suspension or restriction
                    of clinical privileges, subject to subsequent notice and
                    hearing or other adequate procedures, where the
                    failure to take such an action may result in an
                    imminent danger to the health of any individual.
      51
              See Moore v. Williamsburg Reg’l Hosp., 560 F.3d 166, 169-70, 176 (4th
Cir. 2009) (finding immunity where doctor had: (1) opportunity to present his case at
executive meeting the same night he was summarily suspended in “the best interest of
patient care and welfare”; (2) participated with counsel in a review hearing two months
later where he presented argument, called witnesses, and presented evidence; and (3) a
“full-blown” hearing on his appeal to the board five months later); Brader v. Allegheny
Gen. Hosp., 167 F.3d 832, 836-37, 841-42 (3d Cir. 1999) (holding hospital had
immunity under § 11112(c) where summary suspension of privileges was based on
documented contemporaneous concern of imminent danger to patients); Osuagwu v. Gila
Reg’l Med. Ctr., 850 F. Supp. 2d 1216, 1229, 1238-39 (D. N.M. 2012) (finding pre­
deprivation notice and hearing not necessary for duration of 14-day investigatory
suspension, see § 11112(c)(1)(B), but no immunity for post-investigation extension of
suspension absent committee “imminent danger” finding and adequate notice and
hearing procedures); Straznicky v. Desert Springs Hosp., 642 F. Supp. 2d 1238, 1248 (D.
Nev. 2009) (finding immunity under § 11112(c) where committee “could reasonably
                                                                           (continued...)

                                           -30-                                      7172

             Two of the remaining cases are germane to the question whether a pre­
deprivation hearing is necessary in non-emergency and non-investigatory situations.52
In one the doctor already was on strict probationary status and the court found that under
the circumstances the doctor had no expectation of a pre-termination opportunity to be




      51
               (...continued)
believe . . . the failure to summarily suspend [the doctor] could result in an imminent
harm to the health of any individual,” and immunity under § 11112(a) where doctor
received adequate post-suspension procedure); Bakare v. Pinnacle Health Hosps. Inc.,
469 F. Supp. 2d 272, 282-83, 289-90 (M.D. Pa. 2006) (finding immunity under
§ 11112(c)(2) for “immediate, precautionary suspension” imposed “to protect the lives
of patients and to reduce the substantial likelihood of immediate threat to the health and
safety of patients,” and immunity under § 11112(a)(3) where suspension was eased after
initial review and vacated after “comprehensive and fair hearing”); Sklaroff v. Allegheny
Health Educ. Research Found., No. CIV.A 95-4758, 1996 WL 383137, at *9 (E.D. Pa.
1996) (finding immunity under § 11112(c) for summary suspension where committee
concluded doctor “presented an immediate danger to patients admitted to his service,”
and immunity under § 11112(a)(3) where suspension was followed by notice of decision
and hearing within 30 days at which doctor was represented by counsel, called and cross-
examined witnesses, testified on own behalf, and presented evidence), aff’d mem., 118
F.3d 1578 (3d Cir. 1997); Fobbs v. Holy Cross Health Sys. Corp., 789 F. Supp. 1054,
1062-63, 1067-68 (E.D. Cal. 1992) (holding plaintiff forfeited right to a hearing by
failing to attend without good cause), rev’d on other grounds, 29 F.3d 1439, 1442-43
(9th Cir. 1994) (holding summarily imposed monitoring restrictions were covered under
§ 11112(c) where “defendants had ample medical justification to take the steps” to
“avoid imminent danger”), overruled on other grounds by Daviton v. Columbia/HCA
Healthcare Corp., 241 F.3d 1131, 1133 (9th Cir. 2001) (en banc).
      52
             See generally Rogers v. Columbia/HCA of Cent. La., Inc., 971 F. Supp. 229
(W.D. La. 1997), aff’d as mod., 140 F.3d 1038 (5th Cir. 1998); Wahi v. Charleston Area
Med. Ctr., Inc., 562 F.3d 599 (4th Cir. 2009), aff’g 453 F. Supp. 2d 942 (S.D. W. Va.
2006).

                                          -31-                                      7172

heard.53 In the other the doctor was afforded an opportunity to be heard during the
course of the investigation, understood the process from previous experience, and had
the opportunity to present his case at a committee meeting shortly after the suspension
was imposed.54 The remaining cases Providence cites are simply not germane to the
question whether a pre-termination hearing is necessary.55 Here Providence terminated


      53
               See Rogers, 971 F. Supp. at 235-37 (noting a “close question” whether pre­
deprivation hearing is always required when exceptions provided in § 11112(c) do not
apply, but holding hearing not required under the circumstances given probationary
status where for “ten months [doctor] was monitored and corrected” and “knew what was
at stake, but . . . conduct did not improve”).
      54
              See Wahi, 562 F.3d at 610-14 (holding pre-suspension hearing not
necessary under the circumstances when: (1) suspension was instituted only shortly
before doctor had opportunity to present case at committee meeting; (2) doctor had
earlier been informed of investigation and provided opportunity to respond in writing;
(3) “allegations were simply the latest in [the doctor’s] tumultuous history,” which
included three prior suspensions; and (4) hospital diligently worked to arrange acceptable
post-decision hearing but doctor “seemed more intent on forestalling a hearing than
having one”).
      55
              See Wieters v. Roper Hosp., Inc., 58 Fed. App’x 40, 42-43, 45-46 (4th Cir.
2003) (finding immunity where doctor received pre-probation hearing but no post-
probation hearing because the latter was replaced by an evidentiary hearing for summary
suspension that was imposed “in response to new disruptive incidents”); Gabaldoni v.
Wash. Cty. Hosp. Ass’n, 250 F.3d 255, 262 (4th Cir. 2001) (“[T]he ‘professional review
action’ occurred when the Board took the action . . . to terminate [the doctor’s] clinical
privileges and deny his application for reappointment, which indisputably occurred after
the requisite notice and hearing procedures were followed.”); Smith v. Ricks, 31 F.3d
1478, 1485 n.5 (9th Cir. 1994) (noting § 11112(b) safe harbors are sufficient but not
necessary to obtain HCQIA immunity); Egan v. Athol Mem’l Hosp., 971 F. Supp. 37, 40­
41, 43-44 (D. Mass. 1997) (finding sufficient procedure where, following years of
complaints that doctor had responded to both orally and in writing: (1) hospital
recommended conditional reappointment and provided opportunity for hearing;
(2) doctor waived right to hearing by failing to timely respond; and (3) privileges were
                                                                           (continued...)

                                          -32-                                      7172

Dr. Brandner’s privileges in a non-emergency setting without any kind of opportunity
to be heard despite having the time and ability to give Dr. Brandner that opportunity.
Providence’s belated reliance on the safe harbor provisions of § 11112(b) is without
merit, and § 11112(c) similarly fails to support Providence’s position.
              We therefore reverse the superior court’s conclusion that HCQIA immunity
applies to the due process violation arising from terminating Dr. Brandner’s hospital
privileges without an opportunity to be heard.56 We remand for further proceedings on
Dr. Brandner’s claim for damages with respect to this due process violation.57
V.     CONCLUSION
              We AFFIRM the superior court’s termination claim decision; we
REVERSE the pre-termination hearing claim decision and REMAND to the superior
court for further proceedings consistent with this decision.




       55
              (...continued)
terminated after doctor failed to complete mandated conditions), aff’d, 134 F.3d 361 (1st
Cir. 1998); Mathews v. Lancaster Gen. Hosp., 883 F. Supp. 1016, 1034 (E.D. Pa. 1995)
(finding immunity applied where proposed restrictions had been suspended pending
outcome of hearing, proposed action followed a lengthy investigation in which doctor
participated, and doctor filed suit before hearing was scheduled), aff’d, 87 F.3d 624, 637­
38 (3d Cir. 1996).
       56
            Because of this decision we do not need to address other HCQIA issues
Dr. Brandner raised on appeal.
       57
           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
hearing).

                                           -33-                                      7172

         In the Supreme Court of the State of Alaska
Michael D. Brandner, M.D.,                   )
                                             )   Supreme Court No. S-15933
                       Appellant,            )
                                             )             ORDER
       v.	                                   )   Withdraw and Reissue Opinion
                                             )
Providence Health & Services,                )   Date of Order: May 19, 2017
— Washington,	                               )
                                             )
                   Appellee.                 )
Superior Court No. 3AN-13-07697 CI

       Before:	        Stowers, Chief Justice, Winfree and Bolger, Justices. [Fabe and
                       Maassen, Justices, not participating.]

       Having considered Providence Health & Services — Washington’s Petition for
Rehearing and Dr. Brandner’s response,
       IT IS ORDERED that the Petition for Rehearing is GRANTED, and:
       1.	      Opinion No. 7135 issued on November 25, 2016, is WITHDRAWN.
       2.	      Opinion No. 7172 is issued on May 19, 2017, in its place.
       Entered by direction of the court.
                                          Clerk of the Appellate Courts

                                                  /s/
                                          ________________________
                                          Marilyn May
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       Judge Patrick McKay
       Trial Court Appeals Clerk
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