Hospital That Suspended Plastic Surgeon Immune From Suit For Money Damages

Editor’s Note:  An earlier version of this article is the subject of the following correction and retraction: An article published in the July 11, 2017 issue of this page under the headline, “Plastic Surgeon Who Saw Herself As Lizzie Borden Not Eligible For Payout,” which reported on a ruling issued by the Court of Appeals of Georgia in an action brought by Dr. Susan Kolb alleging breach of contract and other claims against Northside Hospital arising from her suspension of her medical staff privileges at the hospital, reported on the ruling’s recitation of several third party reports of statements Dr. Kolb allegedly made that were relied on by the hospital in issuing the suspension.  Dr. Kolb disputes making many of the statements.  To the extent the article implies the Court of Appeals found Dr. Kolb actually made the statements, it was in error.

 The court did not find as a matter of fact that Dr. Kolb saw herself as Lizzie Borden, or that she claimed to be or believed she was the reincarnation of Lizzie Borden.  The court did not find as a matter of fact that she carried a gun into the area outside of an operating room, telling her colleagues she needed it because there was a bounty on her head and that she had been a victim of assassination attempts, or that she said that the military wanted to hire her to conduct remote viewing through out of body experiences.  The court also did not rule that Dr. Kolb’s alleged behavior put her ability to properly care for her patients into question. 

 Courthouse News retracts the headline and the article, and apologizes to Dr. Kolb.  

ATLANTA (CN) — A Georgia hospital has won a ruling in the Georgia Court of Appeals stating the hospital met its burden of proof under the Health Care Quality Improvement Act of 1986 (“HCQIA”) when suspending a plastic surgeon based on a “reasonable suspicion of impairment,” and therefore the plastic surgeon was barred from recovering money damages from the hospital.

According to the Court’s ruling, the Chairman and Vice-Chair of the Medical Executive Committee (“MEC”) at Northside Hospital first informed Dr. Susan Kolb of their decision to suspend Dr. Kolb’s staff privileges in October 2007, and issued a formal suspension letter to Dr. Kolb on November 2007 after receiving reports from various staff members about her behavior.

“In summarily suspending Dr. Kolb’s medical privileges, Northside cited a reasonable suspicion of impairment based on [multiple] reports,” Judge Carla McMillian wrote in the appeals court’s unanimous opinion.  According to the court, these reports included allegations that Dr. Kolb had made statements indicating that: “she carried a gun because there was a bounty on her head”; “she is the reincarnation of Lizzie Borden”; “the military wanted to hire her ‘to conduct remote viewing through out-of-body experiences’” and “she uses her psychic powers to help people find things.”

As recounted in the opinion, Dr. Kolb appealed the summary suspension through Northside’s peer review process.  A Northside “fair hearing” committee, made up of four physicians and an outside lawyer as hearing officer, thereafter affirmed her suspension, after reviewing reports and hearing testimony alleging that, among other things, Dr. Kolb  “appeared to have [a] gun in the area outside [an] operating room,” told her colleagues she needed the gun because “there was a bounty on her head” and that she had been the victim of multiple assassination attempts.

According to the appellate court’s summary of the testimony, the hearing committee also heard testimony alleging that Dr. Kolb stated “the government may be after her because she removed a microchip implanted in a patient in the federal witness protection program,” and “staff reported that they were nervous about working with Dr. Kolb because she ‘kind of frightened them a little bit’ when she made such statements.”  As stated by the Court, “[a]lthough Dr. Kolb denied making some of the statements and presented evidence to explain other statements and her reasons for carrying the gun, she testified that she had reason to believe that there had been several attempts on her life, and although she did not report them to police, she admitted that she told [the Northside MEC Chair] them.”

According to the Court, the fair hearing committee concluded in February 2008 that the MEC had “presented sufficient evidence to convince” the committee that the suspension “was based in fact and was not arbitrary, unreasonable, or capricious” and the committee  recommended rehabilitative steps for Dr. Kolb to follow before seeking reinstatement of her privilege to practice medicine at the hospital.  The ruling further recounts that Dr. Kolb thereafter appealed the fair hearing committee’s decision to an Appellate Review Committee, which found in May 2008 that the suspension “was justified and was not arbitrary, unreasonable or capricious.”

According to the Court’s ruling, Dr. Kolb sued Northside “[o]ver four years later”, and appealed the trial court’s grant of summary judgment to Northside Hospital on her claims for breach of contract, negligence, tortious interference and for attorney’s fees, due to HCQIA immunity.    The Court of Appeals affirmed.

In its ruling, the Court of Appeals found the hospital’s review process for Dr. Kolb’s suspension met the standards set forth in HCQIA statute, and Dr. Kolb was therefore barred from recovering money damages against the hospital.  Specifically, the Court’s June 29 ruling states that the evidence presented by Dr. Kolb was “insufficient to overcome the presumption that the MEC acted in the reasonable belief that her suspension was in furtherance of quality health care” and further that “Dr. Kolb failed to demonstrate that a reasonable jury could conclude that she has shown by a preponderance of the evidence that [the hospital’s] decision to suspend her was not based on a reasonable belief that it was furthering the quality of health care at the hospital.”

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