                                                       I"'1




                                                       LI, J f !




IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ERIC R. SHIBLEY, M.D.,
                                                         No. 72855-5-1
        Appellant/Cross Respondent,
                                                         DIVISION ONE
               v.
                                                         UNPUBLISHED OPINION
KING COUNTY PUBLIC HOSPITAL
DISTRICT NO. 4, d/b/a SNOQUALMIE
VALLEY HOSPITAL, a municipal
corporation; KIMBERLY WITKOP, M.D.,
individually; the marital community of
KIMBERLY WITKOP, M.D. and LESTER
C. WITKOP; and RICHARD J. PISANI,
M.D.,

         Respondents/Cross Appellants.                   FILED: May 23, 2016


        Appelwick, J. — Dr. Shibley sued Snoqualmie Valley Hospital for damages

after SVH terminated his employment and clinical privileges due to his

unprofessional conduct. The trial court granted summary judgment in favor of
SVH. Dr. Shibley argues that the trial court erred in holding that SVH was entitled

to immunity from suit. He argues that the trial court erred in dismissing his

employment and termination related claims. SVH argues that the trial court erred
in denying its motion for attorney fees. SVH contends that it is also entitled to
attorney fees on appeal. We affirm.
No. 72855-5-1/2




                                       FACTS


       Dr. Eric Shibley was employed as a hospitalist by King County Public

Hospital District No. 4. He worked at Snoqualmie Valley Hospital (SVH) under an

employment agreement that was effective as of September 1, 2010.

       On February 8, 2011, patient ST. was transferred to SVH. She had just

had surgery and required close medical attention to ensure that her wound did not

become infected. Dr. Shibley was the hospitalist on duty at the time. He was

responsible for performing a history and physical examination of ST. upon

admission.    But, he did not examine ST. on February 8.            Dr. Shibley was

scheduled to go off duty the next day and transfer patient care to Dr. Richard

Pisani, the other hospitalist at SVH. On February 9, while Dr. Shibley was still on

duty, Dr. Pisani went to see ST. ST. and her husband told Dr. Pisani that he was

the first doctor they had seen since her admission to the hospital.        When Dr.

Shibley and Dr. Pisani met later that day to transfer patient care, Dr. Pisani noticed

that Dr. Shibley was dictating a history and physical examination for ST.

       On February 16, 2011, Dr. Shibley and Dr. Pisani had a heated

disagreement about the proper treatment for another patient, R.B. During that

discussion, Dr. Pisani asked Dr. Shibley about ST. According to Dr. Pisani, Dr.

Shibley admitted that he had not examined ST. Later that day, Dr. Shibley spoke

with Dr. Kimberly Witkop, his supervisor. He told her about his earlier interaction

with Dr. Pisani. Dr. Shibley told Dr. Witkop that Dr. Pisani had accused him of

documenting a history and physical on ST. without performing a physical
No. 72855-5-1/3




examination. Dr. Witkop then asked Dr. Shibley ifthe accusation was true, and he

said it was.


       On February 17, 2011, Dr. Witkop and Gary Brenner, the interim human

resources director, met with Dr. Shibley. Dr. Witkop told Dr. Shibley that she was

concerned that he had documented a history and physical examination without

examining the patient. Dr. Shibley again acknowledged, in the presence of both

Dr. Witkop and Brenner, that he had not performed the history and physical

examination of ST. Dr. Witkop told Dr. Shibley that SVH was terminating his

employment.

       Dr. Shibley signed a severance agreement and release on March 1, 2011.

SVH provided him with 30 days of severance pay in compensation for signing the

severance agreement.       The severance agreement stated that Dr. Shibley

unconditionally released SVH from any and all claims stemming from his

employment or termination.

       On March 14, 2011, Dr. Shibley was notified that SVH's Medical Executive

Committee (MEC) voted to terminate his clinical privileges, effective March 8,

2011. The letter cited Dr. Shibley's unprofessional conduct as the reason. And, it

notified Dr. Shibley that he could request a hearing before a three member panel

to contest the MEC's recommendations.

       Also on March 14, SVH submitted an adverse action report concerning Dr.

Shibley to the National Practitioner Data Bank (NPDB).        The NPDB collects

information from health care entities so as to improve health care quality, protect

the public, and reduce health care fraud.         Health care entities—including
No. 72855-5-1/4




hospitals—are required to report certain adverse actions to the NPDB. SVH's first

report concerning Dr. Shibley classified its adverse action as a revocation of

clinical privileges and termination of employment. And, it stated that Dr. Shibley's

employment and privileges were terminated because of "one act of unprofessional

conduct exhibited as documentation of conducting a patient history and physical

without having examined the patient."

       Then, on April 12, 2011, SVH submitted a second adverse action report to

the NPDB. This report was identical to the first report, except it labeled the action

taken as a summary suspension of Dr. Shibley's clinical privileges, rather than a

termination.


       On March 18, 2011, Dr. Shibley requested a hearing to challenge the MEC's

recommendation that his privileges be terminated. This hearing was held in May

and June 2011, before a three member panel. Dr. Shibley was represented by

counsel at this hearing.    He called ST. and her husband to testify, and he

questioned Dr. Witkop, Dr. Pisani, and Brenner. The panel found that Dr. Shibley

falsified the history and physical for ST., upholding the MEC's recommendation.

       Dr. Shibley then took advantage of his right of final appellate review by

SVH's Board of Commissioners (Governing Body). The Governing Body affirmed

both the MEC and the panel, permanently terminating Dr. Shibley's privileges on

January 5, 2012.

       SVH also reported Dr. Shibley to the Washington Department of Health

Medical Quality Assurance Commission. Dr. Shibley stipulated that he dictated an

inaccurate note relating to S.T.'s vital signs and physical examination. As a result,
No. 72855-5-1/5




the Commission found that Dr. Shibley committed unprofessional conduct in

violation of RCW 18.130.180(4). On November 6, 2012, the Commission entered

its order placing Dr. Shibley's credentials on probation.

         Dr. Shibley sued SVH, Dr. Witkop, and Dr. Pisani (collectively "defendants").

He alleged ten causes of action: negligence, breach of contract, national

origin/race/ethnicity discrimination; wrongful discharge; chapter 7.24 RCW

declaratory judgment; defamation against SVH and against all other defendants;

violation of the Washington Consumer Protection Act, chapter 19.86 RCW;

violation of the Washington blacklisting statute, RCW 49.44.010; and vicarious

liability.

         Defendants moved for summary judgment.          The trial court granted this

motion on November 20, 2014.           In reaching this conclusion, the trial court

dismissed both Dr. Witkop and Dr. Pisani as defendants, because there was no

legitimate cause of action against either of them. And, the court found that no

reasonable finder of fact could conclude that the hospital was negligent in firing Dr.

Shibley or that it breached a contract with him. The trial court also found that SVH

did not breach any duty to Dr. Shibley with regard to its reports to the NPDB.

Furthermore, the court found that SVH was immune from liability for these reports

and Dr. Shibley had waived his right to challenge them.

         Defendants then moved for attorney fees and costs, and the trial court

denied their motion. Dr. Shibley appeals the dismissal of his lawsuit on summary

judgment. Defendants cross appeal the denial of their motion for attorney fees.
No. 72855-5-1/6




                                  DISCUSSION


       Dr. Shibley argues that the trial court erred in dismissing his lawsuit on

summary judgment. He claims that SVH was not entitled to immunity for its reports

to the NPDB, because it failed to follow the proper procedures and it defrauded

him. And, he asserts that the trial court erred in holding that he released SVH from

liability for his employment and termination related claims.     Defendants cross

appeal, arguing that they were entitled to attorney fees below, and they are also

entitled to attorney fees on appeal

       Summary judgment is proper when the pleadings, affidavits, depositions,

and admissions on file demonstrate there is no genuine issue of material fact. CR

56(c). The moving party has the burden to establish that there is no genuine

dispute over a material fact, and reasonable inferences must be drawn in favor of

the nonmoving party. Atherton Condo. Apartment-Owners Ass'n Bd. Of Dirs. v.

Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). Summary judgment

should be granted only if a reasonable person could reach only one conclusion.

Folsom v. Burger King. 135 Wn.2d 658, 663, 958 P.2d 301 (1998). We review

summary judgment rulings de novo, engaging in the same inquiry as the trial court.

Jg\

  I.   SVH's Immunity for Reporting to the NPDB

       Dr. Shibley argues that SVH failed to follow the appropriate procedures

before it took action against his privileges. And, he claims that SVH defrauded

and defamed him through its reports to the NPDB. As a result, he contends that

the trial court erred by concluding that SVH was entitled to immunity.
No. 72855-5-1/7




      The Health Care Quality Improvement Act of 1986 (HCQIA), recognizes the

need to improve medical care by encouraging physician peer review.1 42 U.S.C.

§ 11101. The HCQIA does this by requiring health care entities to report certain

actions taken against physicians. 42 U.S.C. § 11133(a). Under this statutory

scheme, any person who participates with or assists a professional review body

with a professional review action is immune from liability damages. 42 U.S.C. §

11111(a)(1). Immunity is granted, so long as the peer review action meets the

requirements of 42 U.S.C. § 11112(a).          42 U.S.C. § 11111(a)(1).         These

requirements are that a peer 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).

42 U.S.C. § 11112(a).      A peer review action is presumed to meet these

requirements, unless the plaintiff rebuts the presumption by a preponderance of

the evidence. 42 U.S.C. § 11112(a).

      The HCQIA specifies the notice and hearing procedures that are adequate

or fair under the circumstances. 42 U.S.C. § 11112(b). It provides that a health

care entity meets this requirement if it provides the physician notice of the

      1 Washington has explicitly adopted the HCQIA in its Health Care Peer
Review Act, clarifying that the federal requirements of the HCQIA apply in
Washington as well. RCW 7.71.020.
No. 72855-5-1/8




proposed action stating its reasons, notifying the physician that he may request a

hearing, and informing him of his rights. 42 U.S.C. § 11112(b)(1). And, if the

physician does request a hearing, he must be given notice of the hearing's place,

time, and date, and a list of the witnesses expected to testify. 42 U.S.C. §

11112(b)(2). If a hearing is held, it must be before an impartial decision-maker.

42 U.S.C. § 11112(b)(3).     At the hearing, the physician has the right to be

represented by an attorney, have a record made of the proceedings, call and

cross-examine witnesses, present evidence, and submit a written closing

statement. 42 U.S.C. § 11112(b)(3). However, failure to follow these procedures

does not automatically mean that a hospital did not meet the requirements of 42

U.S.C. § 11112(a)(3). 42 U.S.C. § 11112(b). In fact, the statute recognizes that

these procedures should not be construed as "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." 42 U.S.C. §

11112(c).

      As a preliminary matter, Dr. Shibley contends that SVH's adverse action

was invalid, because he did not have privileges to act against. He argues that

under the medical staff bylaws (Bylaws),2 his privileges terminated six months after

they were granted.    Article 4, Section 4(b) of the Bylaws provides for clinical

privileges: "Provisional Medical Staff members shall be provisionally granted

       2 The medical staff practicing at SVH have adopted the Bylaws to promote
quality health care, encourage quality professional performance, provide rules
governing the medical staff, and institute procedures to discuss relevant issues.

                                            8
No. 72855-5-1/9



Clinical Privileges.     Their performances shall be observed by the Medical

Executive Committee to determine the eligibility of such provisional members for

membership on the Active Medical Staff and for exercising the Clinical Privileges

provisionally granted to them." Article 4, Section 4(a) of the Bylaws addresses

medical staff appointments,

      All initial appointments to the Medical Staff shall be to the provisional
      Medical Staff for a period of six months. At the conclusion of six
      months, the Medical Staff will: (i) recommend the Practitioner be
      appointed to the active or courtesy Medical Staff according to his or
      her original application; (ii) be reappointed to the provisional staff for
      an additional period not exceeding 18 months allowing additional
      observation; or, (iii) be removed from the Medical Staff. . . . Upon
      expiration of a Practitioner's appointment to the provisional staff, the
      failure to transfer the Practitioner from provisional to Active or
      Courtesy Medical Staff Membership shall be conclusively deemed a
      termination of his staff appointment.

Because he was originally granted provisional privileges no later than September

1, 2010, Dr. Shibley asserts that his privileges conclusively terminated on February

28,2011.

       We do not read Article 4, Section 4 of the Bylaws as narrowly as Dr. Shibley

does.3 Importantly, article 1, section 5 instructs on how to construe the Bylaws.

Section 5(d) provides:

      Time periods referred to in these bylaws for actions by the Medical
      Staff, its committees and the Governing Body are advisory only and
      not mandatory. While no such actions shall be required to be
      accomplished in less time than that specified, extensions should be
      granted or permitted for reasonable cause or for the convenience of
      participants. Time periods specified for the giving of or complying
      with Special Notices, on the other hand, are mandatory and shall be
      strictly observed and complied with by all parties.

      3 Neither party argues that Dr. Shibley's signing of the severance agreement
automatically terminated his clinical privileges. Therefore, we look to the Bylaws
to analyze whether Dr. Shibley still had privileges when the MEC took action
against him.
No. 72855-5-1/10




The time for review of provisional staff appointments and their privileges is not a
special notice for purposes of article 1, section 5. Therefore, it is advisory that the

MEC review provisional staff appointments prior to the expiration of the initial six

month period, not mandatory.       And, SVH's director of medical staff services,

Barbara Donovan, explained that physicians often remain provisional staff

members for 6 to 10 months, depending on how long it takes for the MEC to meet

and consider the matter.      We conclude that Dr. Shibley's privileges did not

automatically expire on February 28, 2011.

       Assuming that he did have privileges, Dr. Shibley argues that SVH's reports

to the NPDB were invalid for one of two reasons. Either the MEC initially used the

correct label, termination, and provided him inadequate procedures, or it initially

used the wrong label, reported the more severe sanction of termination, and

attempted to defraud him by later changing the label to summary suspension.

       The Bylaws provide that when the MEC's corrective action might result in a

reduction or suspension of privileges, the physician shall be permitted to appear

before the MEC beforehand.        But, article 7, section 2 of the Bylaws outlines

different procedures appropriate for a summary suspension of privileges. Under

this section, the MEC is authorized, "whenever action must be taken immediately

in the best interest of patient care in the Hospital, to summarily suspend all or any

portion of the Clinical Privileges of a Practitioner, and such summary suspension

shall become effective immediately upon imposition." When the MEC exercises

this authority, it must provide the physician a written report of the summary

suspension. The physician has the right to request the MEC to consider the matter


                                             10
No. 72855-5-1/11




at its next meeting. The physician also has a right to a hearing before a three

member panel and to a final appellate review.

         Here, the MEC decided that Dr. Shibley's conduct presented such a serious

threat to patient safety that his         privileges should be stopped, pending

administrative review. SVH communicated this decision to Dr. Shibley in a letter

dated March 14, 2011, labeling its action as a termination of privileges. This letter

informed Dr. Shibley that he could request a hearing before a three member panel.

Also on March 14, SVH reported to the NPDB that Dr. Shibley's privileges had

been revoked because of an instance of unprofessional conduct.             Dr. Shibley

retained a lawyer, who requested a hearing before a three member panel. The

next month, on April 12, SVH filed a corrected report with the NPDB, which labeled

the adverse action as a summary suspension of privileges. In May and June, Dr.

Shibley received a hearing before a three member panel. The panel affirmed the

MEC's recommendation. And, in December, Dr. Shibley pursued final appellate

review     by the    Governing    Body.      The    Governing    Body affirmed the

recommendations of the MEC and the panel. Accordingly, Dr. Shibley's privileges

were permanently terminated on January 5, 2012.

         Thus, despite SVH's initial label of its adverse action, the record shows that

Dr. Shibley's privileges were summarily suspended, not terminated. The panel

acted immediately to protect patient safety, and Dr. Shibley received all the

process that the Bylaws provide for a summary suspension.4 The record further


      4 Dr. Shibley also asserts that he was denied his constitutional right to
procedural due process. But, even assuming that he had a protected property or

                                               11
No. 72855-5-1/12



shows that when SVH became aware of the erroneous label given to its adverse

action, it corrected the mistake by sending a second report to the NPDB. This

second report was identical to the first report, except it accurately labeled its

adverse action as a summary suspension of privileges rather than a termination.

Although Dr. Shibley asserts this correction was part of a cover up intended to

defraud him, nothing in the record suggests that SVH sent the corrected report for

any reason other than to accurately reflect the action taken.5

       Dr. Shibley also contends that SVH defamed him by reporting to the NPDB

that he had documented a history and physical examination without first examining

the patient. He asserts that a question of material fact exists as to whether he

actually examined ST.




liberty interest at stake, Dr. Shibley has not explained what additional procedures
he was entitled to under the Due Process Clause.
       And, due process is flexible. Morissev v. Brewer, 408 U.S. 471, 481, 92 S.
Ct. 2593, 33 L. Ed. 2d 484 (1972). When the circumstances require immediate
action, post-deprivation process satisfies the requirements of the Due Process
Clause. Gilbert v. Homar, 520 U.S. 924, 930, 117 S. Ct. 1807, 138 L. Ed. 2d 120
(1997). Matters of public health and safety—such as the discovery that a physician
poses an immediate danger to public safety—require the government to act
quickly. N. Am. Cold Storage Co. v. City of Chicago, 211 U.S. 306, 315-16, 29 S.
Ct. 101, 53 L Ed. 195 (1908): Guttman v. Khalsa, 669 F.3d 1101, 1114 (10th Cir.
2012). Because the MEC determined that Dr. Shibley posed an immediate danger
to patients at SVH, a hearing after the fact was sufficient to satisfy the Due Process
Clause.
       5 And, Dr. Shibley has not shown how he was damaged by SVH's initial
mistake and later correction. As he believed he no longer had privileges at SVH,
Dr. Shibley was not still attempting to exercise his privileges and denied the
opportunity to do so. Nor has he articulated how termination is a more damaging
label than summary suspension. He has not produced any evidence to suggest
that if SVH originally reported a summary suspension to the NPDB, it would have
affected his ability to obtain and keep employment.


                                             12
No. 72855-5-1/13




       But, the MEC decided to summarily suspend Dr. Shibley's privileges

because he admitted to committing unprofessional conduct. Dr. Witkop informed

the MEC of this admission and Dr. Shibley's resulting termination of privileges.

The MEC, after a lengthy discussion, voted to take action against Dr. Shibley's

privileges.   Later, at the hearing before the three member panel, Dr. Shibley

testified that he averaged existing lab results when documenting S.T.'s history and

physical. Averaging prior lab results is not standard medical practice, nor did Dr.

Shibley indicate that he was doing so on the history and physical. And, in the

Medical Quality Assurance Commission's findings of fact, Dr. Shibley stipulated

that he inaccurately documented S.T.'s vital signs and physical examination. He

agreed to the entry of the Commission's conclusion of law that he committed

unprofessional conduct through incompetence, negligence, or malpractice that

injures a patient or creates an unreasonable risk that a patient might be injured.

       Thus, the MEC made a reasonable effort to obtain the facts before it acted

to stop Dr. Shibley's privileges. And, in later proceedings, Dr. Shibley confirmed

that he did commit unprofessional conduct—he simply disagreed with how he did

so. Dr. Shibley's unprofessional conduct triggered SVH's adverse action. The

report to the NPDB of suspension for unprofessional conduct was not false, and

therefore could not be defamatory.

       The remaining question is whether SVH's actions satisfied the requirements

of 42 U.S.C. § 11112(a) such that SVH is entitled to immunity. In arguing that they

did not, Dr. Shibley compares this case to Brown v. Presbyterian Healthcare

Services, 101 F.3d 1324 (10th Cir. 1996) and Osuagwu v. Gila Regional Medical


                                            13
No. 72855-5-1/14




Center. 850 F. Supp. 2d 1216 (D.N.M. 2012). In Brown, the physician presented

sufficient evidence that the defendants did not make a reasonable effort to obtain

the facts before taking a peer review action. 101 F.3d at 1333. And, the NPDB

report listed the disciplinary action as negligence, incompetence, or malpractice,

but the review panel and the Board of Trustees never found the physician

negligent, incompetent, or guilty of malpractice. Id at 1334. From this, the court

concluded that a reasonable jury could have determined that the report was false

and the defendants knew of its falsity. Id. In Osuagwu, the physician presented

evidence that the peer review hearings did not give him an opportunity to confront

and cross-examine witnesses against him, and the panel was not impartial. 850

F. Supp. 2d at 1239. And, the physician presented evidence that the defendants

did not make a reasonable effort to obtain the facts of the case. ]d. Therefore, the

physicians in both Brown and Osuagwu met their burden of rebutting the

presumption that the peer review actions met the standards of 42 U.S.C. §

11112(a). Brown, 101 F.3d at 1334; Osuagwu. 850 F. Supp. 2d at 1239. The

defendants were not entitled to immunity. Brown, 101 F.3d at 1334; Osuagwu,

850 F. Supp. 2d at 1239.

       Here, Dr. Shibley did not present evidence rebutting the presumption that

SVH met the requirements of 42 U.S.C. § 11112(a). Although he claims that SVH

made the adverse action reports without making a reasonable effort to obtain the

facts, he does not support this claim with evidence. Instead, the facts show that

Dr. Shibley's employment was terminated because he admitted to multiple people




                                            14
No. 72855-5-1/15



that he falsified a patient's history and physical. Dr. Witkop informed the MEC of

this incident of unprofessional conduct and Dr. Shibley's termination.

       Moreover, there is no evidence to suggest that SVH failed to obtain the facts

or was aware of any falsity in its reporting to the NPDB. Dr. Shibley has not shown

that SVH knew that termination was an inaccurate characterization of the MEC's

action at the time this first report was made. Instead, Dr. Shibley's communications

with Jay Rodne, SVH's general counsel, show that SVH made a corrected report

to the NPDB once it realized that the action was more accurately considered a

summary suspension.

       Nor has Dr. Shibley shown that the procedures afforded to him were not fair

under the circumstances. Under 42 U.S.C. § 11112(c), notice of the proposed

action is not required when the failure to take action may result in imminent danger

to the health of any individual. Here, the MEC believed that immediate action was

necessary to protect patient safety, and it followed the procedures set out in the

Bylaws for emergency action. Unlike in Brown and Osuagwu, Dr. Shibley has not

demonstrated by a preponderance of the evidence that SVH's actions did not

comply with 42 U.S.C. § 11112(a).

       We hold that SVH was entitled to immunity for its reports to the NPDB.

Therefore, all of Dr. Shibley's claims relating to SVH's reports to the NPDB were

properly dismissed on summary judgment.

 II.   Dr. Shibley's Employment and Termination Related Claims

       The remainder of Dr. Shibley's arguments address the dismissal of his

claims related to his employment and termination. He asserts that SVH breached


                                            15
No. 72855-5-1/16




his employment agreement and the Bylaws by terminating him without providing

him notice and an opportunity to cure. And, he argues that Dr. Witkop terminated

him in retaliation for his exercise of his First Amendment right to free speech.

      After SVH terminated Dr. Shibley's employment, he signed a severance

agreement.     In the severance agreement, Dr. Shibley explicitly agreed to

unconditionally release SVH and its employees "from any and all claims, demands,

liabilities, and causes of action of every kind stemming from or in any way related

to [his] employment by District or the termination of the employment relationship."

Dr. Shibley received severance pay in exchange for this release. Dr. Shibley has

not made any demonstration that this agreement is unenforceable. Therefore, we

conclude that the severance agreement bars Dr. Shibley's employment and

termination related claims.


       Consequently, the trial court properly dismissed Dr. Shibley's claim that

SVH breached the employment agreement. Dr. Shibley asserts that under the

employment agreement, SVH was required to give him notice and a reasonable

opportunity to cure before it terminated him. But, whether SVH complied with the

employment agreement when it terminated Dr. Shibley falls within the category of

claims relating to Dr. Shibley's employment and termination that he contracted

away. Dr. Shibley cannot now challenge this aspect of his termination.

       Dr. Shibley's retaliation claim is also barred by the severance agreement.

Dr. Shibley asserts that Dr. Witkop terminated his employment in retaliation for

exercising his right of free speech. But, Dr. Witkop's motivation for terminating Dr.

Shibley's employment is related to the termination of his employment. Dr. Shibley


                                            16
No. 72855-5-1/17




released not only SVH, but also its employees from all claims related to his

termination. He cannot now contend that Dr. Witkop terminated him in retaliation

for exercising his right of free speech.

        Dr. Shibley has not stated a cause of action that is unrelated to either SVH's

reports to the NPDB or his employment and termination. Therefore, we hold that

the trial court did not err in granting summary judgment to Defendants.

 III.   Attorney Fees

        Defendants cross appeal, arguing that the trial court erred in denying their

motion for attorney fees and costs. And, they contend that they are entitled to

attorney fees on appeal.

        In the court below, Defendants argued that they were entitled to attorney

fees under RCW 70.41.210, 42 U.S.C. §11113, RCW 7.71.035, and the Bylaws.

The trial court declined to award attorney fees on any of these bases. We review

the legal basis for an attorney fee award de novo, and we review a discretionary

decision to award or deny attorney fees for an abuse of discretion. Gander v.

Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012).

        Defendants argue that attorney fees are mandatory under the state

reporting statute. RCW 70.41.210 requires the chief administrator or executive

officer of a hospital to report to the Washington Department of Health when a

health care practitioner's practice is restricted, suspended, limited, or terminated

because the practitioner committed unprofessional conduct. And, it provides

immunity from suit for any hospital or administrator who files a report under this
section, unless the report is based on a finding that was not made in good faith.


                                              17
No. 72855-5-1/18




RCW 70.41.210(5). It also allows for an award of reasonable attorney fees to the

prevailing party in an action alleging the finding or report was not made in good

faith. Id. This statute is distinct from the federal reporting scheme, which governs

reports to the NPDB, rather than the state Department of Health.

       RCW 70.41.210(5) clearly mandates attorney fees only for a report filed

"under this section," meaning with the Department of Health.       In the amended

complaint, Dr. Shibley asserted on several occasions that the report to the NPDB

was false. But, Dr. Shibley never alleged that the separate report made to the

Department of Health was false.       Nor did he claim that this separate report

constituted a cause of action. Therefore, attorney fees were not mandatory under

RCW 70.41.210.


       Defendants also argue that they are entitled to discretionary attorney fees

under RCW 7.71.035, 42 U.S.C. § 11113, and the Bylaws. They claim that Dr.

Shibley's claims were entirely precluded by immunity and release, so his lawsuit

cannot be considered well-intentioned.


       The Washington health care peer review act provides that in an action under

RCW 7.71.030, the court shall award attorney fees to the prevailing party, if the

other party's claim, defense, or conduct was frivolous, unreasonable, without

foundation, or in bad faith. RCW 7.71.035(1). Similarly, the HCQIA allows for a

discretionary award of attorney fees if the professional review action meets the

standards set out in 42 U.S.C. § 11112(a), the defendant substantially prevails,

and the plaintiff's claim or conduct during litigation was frivolous, unreasonable,

without foundation, or in bad faith. Cohlmia v. St. John Med. Ctr., 749 F.3d 1175,


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1178 (10th Cir. 2014); 42 U.S.C. § 11113. And, article 2, section 6 of the Bylaws

provides that the court may award attorney fees and costs to the prevailing party

in a suit concerning membership on the medical staff or clinical privileges at the

hospital.

       Defendants assert that Dr. Shibley's claims were frivolous, because they

were entirely precluded by liability or release. But, several of Dr. Shibley's claims

challenged SVH's adverse action reports to the NPDB. These reports occurred

after Dr. Shibley was terminated and after he signed the severance agreement.

The severance agreement did not address NPDB reports. Whether Dr. Shibley

succeeded on those claims turned on whether SVH followed the proper

procedures and investigated the facts. This challenge was not frivolous. Even

though Dr. Shibley's other claims were precluded by the severance agreement,

the trial court concluded that the suit as a whole was not frivolous or in bad faith.

We agree.

       Defendants further claim that Dr. Shibley's appeal is frivolous, so they

should be awarded attorney fees for defending against it. This court has authority

to require a party to pay attorney fees as sanctions, terms, or compensatory

damages when the party files a frivolous appeal.       RAP 18.9(a); Advocates for

Responsible Dev. v. W. Wash. Growth Mgmt. Hr'gs Bd., 170 Wn.2d 577, 580, 245

P.3d 764 (2010). An appeal is frivolous if, in light of the entire record, we are

convinced that the appeal has no debatable issues on which reasonable minds

could disagree, and the appeal is so meritless that there is no possibility of




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reversal. Tiffany Family Trust Corp. v. City of Kent. 155 Wn.2d 225, 241, 119 P.3d

325 (2005). We resolve all doubts against finding the appeal frivolous. Jd.

      We decline to categorize this appeal as frivolous, for the same reasons that

the lawsuit itself was not frivolous. Therefore, we hold that Defendants are not

entitled to attorney fees below or on appeal.

      We affirm.




WE CONCUR:




                                                 JL^t%^




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