Takieh v. Banner Health

T
                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


         SEYED MOHSEN SHARIFI TAKIEH, Plaintiff/Appellant,

                                        v.

   BANNER HEALTH, an Arizona Not-For-Profit Corporation, d/b/a
    BANNER BAYWOOD MEDICAL CENTER, Defendant/Appellee.

                             No. 1 CA-CV 20-0110
                               FILED 5-13-2021


           Appeal from the Superior Court in Maricopa County
                          No. CV2017-055848
            The Honorable Lisa Daniel Flores, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

Goldberg Law Group LLC, Scottsdale
By Michael K. Goldberg, Jenna E. Milaeger
Co-Counsel for Plaintiff/Appellant

William A. Miller PLLC, Phoenix
By William A. Miller, Stephen D. Smith
Co-Counsel for Plaintiff/Appellant

Coppersmith Brockelman PLC, Phoenix
By Andrew S. Gordon, Karen C. Owens, Katherine L. Hyde
Counsel for Defendant/Appellee
                      TAKIEH v. BANNER HEALTH
                          Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer M. Perkins and Judge David B. Gass joined.


B R O W N, Judge:

¶1             This appeal arises from A.R.S. § 36-445.02, which allows for
judicial review of a private hospital’s peer review process. Dr. Seyed
Mohsen Sharifi Takieh (“Sharifi”) appeals the superior court’s decision
affirming the revocation of his medical staff membership and privileges
(“staff privileges”) and the denial of his motion for new trial. For the
following reasons, we affirm.

                             BACKGROUND

¶2            Sharifi is an Arizona licensed physician who is board certified
in several cardiology-related specialties. His practice includes
administering thrombolytics, which is medication that breaks up blood
clots in “deep vein thrombosis” procedures. See Thrombolytic, Merriam-
Webster’s Collegiate Dictionary (11th ed. 2014). From 2005 to December
2018, Sharifi had medical staff privileges at Banner Baywood Medical
Center (“BBMC”) and three other Banner Health (“Banner”) facilities.

¶3             In January 2017, hospital staff asked BBMC to intervene in
Sharifi’s treatment of a patient. Staff expressed concern because Sharifi
administered thrombolytics to a patient when it was not appropriate. The
hospital started an investigation, initially sending 16 cases for external
review and ending up focusing on five. Of those five, two patients died and
one needed to be transferred to a different hospital. The matter was then
brought before the Medical Executive Committee (“Committee”). The
investigation then led to Sharifi’s peer review, which is internally regulated
by the medical staff bylaws (“Bylaws”).

¶4           In March 2017, Sharifi requested and received an external
review of his treatment decisions. Each external reviewer gave negative
reviews. As a result, the Committee proposed that Sharifi voluntarily
obtain pre-approval before doing deep vein thrombosis procedures with
thrombolytics. When he refused, the Committee imposed the pre-approval
requirement and offered him a hearing to challenge the restriction. After



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                      TAKIEH v. BANNER HEALTH
                          Decision of the Court

Sharifi objected to how the Committee would be empaneled for the purpose
of conducting the hearing, the Bylaws were amended to clarify who was
eligible to serve on the Committee.

¶5            In preparing for the hearing, the Committee found that of the
eight cases they planned to present at the hearing, Sharifi had substantially
altered the records in four of them. While Sharifi claimed these types of
edits were acceptable, the Committee did not agree. After the hearing, the
Committee recommended revoking Sharifi’s staff privileges for three
independent reasons: (1) patient care deficits; (2) improper and unethical
alteration of medical records; and (3) abusive and bullying conduct toward
individuals involved in the peer review process.

¶6             As permitted under the Bylaws, Sharifi requested a “Fair
Hearing,” the next administrative level of review. Three doctors who did
not take part in the peer review comprised the Fair Hearing panel (“Panel”).
A hearing officer conducted the hearing, during which the Panel heard
testimony from 14 witnesses and received 85 exhibits. The Panel’s 20-page
report concluded that the Committee’s recommendation to remove Sharifi
from the medical staff was reasonable and warranted for each of the three
grounds.

¶7              Sharifi appealed to the Appellate Review Committee
(“ARC”), which then issued a 13-page report recommending the Board of
Directors (“Board”) terminate Sharifi’s privileges. The ARC rejected
Sharifi’s claims of procedural error and concluded that revocation of
Sharifi’s staff privileges was justified under each ground. After considering
the ARC recommendations, the Board terminated Sharifi’s staff privileges
in December 8, 2018.

¶8             Sharifi filed a complaint in superior court alleging various
claims, including breach of contract and declaratory judgment. He also
sought injunctive relief to prevent Banner from reporting the adverse action
to the National Practitioner Data Bank (“Data Bank”) until the hearings and
appeals were completed. Eventually the superior court dismissed Sharifi’s
contract and declaratory judgment claims. The court denied Sharifi’s
request for injunctive relief under A.R.S. § 36-445.02 and issued a judgment
in favor of Banner, finding that substantial evidence supported revocation
on all three grounds.

¶9           Sharifi sought a new trial under Arizona Rule of Civil
Procedure (“Rule”) 59(a)(1)(A) and (B) claiming “irregularity in the
proceedings or abuses of discretion depriving the party of a fair trial” and



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                      TAKIEH v. BANNER HEALTH
                          Decision of the Court

“misconduct of the . . . prevailing party.” Sharifi attached new declarations
alleging Banner was prejudiced against him due to his race and religion,
which meant the decision maker was biased because termination of staff
privileges was a “foregone conclusion.” Banner objected, arguing Rule 59
was not applicable to judicial review of a hospital peer review. The superior
court agreed and denied the motion for a new trial. Sharifi then appealed.

                               DISCUSSION

¶10           Sharifi does not challenge the sufficiency of the evidence
against him. Rather, he asserts there were procedural errors in the peer
review process, and it was affected by racial and religious bias. Sharifi also
argues the superior court abused its discretion in (1) denying him injunctive
relief under A.R.S. § 36-445.02, (2) dismissing his contract and declaratory
judgment claims arising out of the peer review process, and (3) denying his
motion for a new trial.

       A.     Appellate Jurisdiction

¶11            We have an independent duty to examine our own
jurisdiction. Abril v. Harris, 

157 Ariz. 78

, 80 (App. 1987). We are “a court of
limited jurisdiction and ha[ve] only jurisdiction specifically given to [us] by
statute.” Campbell v. Arnold, 

121 Ariz. 370

, 371 (1979). Timely notice of
appeal is “a prerequisite to appellate jurisdiction.” Wilkinson v. Fabry, 

177
Ariz. 506

, 507 (App. 1992). Generally, a party must file a notice of appeal
no more than thirty days after the entry of final judgment, ARCAP 9(a),
unless a party files a timely and proper post judgment motion. See Ariz. R.
Civ. P. 50(b), 52(b), 59(a), 59(d), 60(a), or 60(b).

¶12           Sharifi filed his notice of appeal after the superior court’s
denial of his Rule 59 motion. Banner argues Sharifi did not file a timely
notice of appeal within 30 days of judgment as required by ARCAP 9(a)
because Sharifi was not entitled to the time-extending benefit of a motion
for new trial under Rule 59. The question before us is whether a motion
purporting to be a Rule 59 motion and describing grounds under that rule
should be treated as a motion that extends the time for appeal.

¶13           We do not necessarily consider a motion to be what it is titled;
rather, we look to the substance of the motion and address it accordingly.
Hegel v. O’Malley Ins. Co., Agents & Brokers, 

117 Ariz. 411

, 412 (1977). In
Hegel, our supreme court concluded that irrespective of how the party
“style[s]” a motion, if the motion cites a rule governing time-extending
motions and states a ground recognized by that rule, the court will treat it
as a time-extending motion.

Id. The supreme court

affirmed these


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                      TAKIEH v. BANNER HEALTH
                          Decision of the Court

principles in Farmers Insurance Co. of Arizona v. Vagnozzi, 

132 Ariz. 219

, 221
(1982). Here, Sharifi cited Rule 59 and explained there were grounds for a
court to grant a new trial due to “irregularities in the proceedings or abuses
of discretion depriving the party of a fair trial, and misconduct of the
prevailing party.” Thus, his post-judgment motion could properly qualify
as a time-extending motion for new trial, rendering his notice of appeal
timely. We decline to decide whether a Rule 59 motion is an appropriate
method of raising a post-judgment challenge in a § 33-445.02(B) proceeding.

       B.     Immunity Statute

¶14            Hospitals are statutorily required to organize physicians “into
committees or other organizational structures to review the professional
practices within the hospital or center” in a process known as peer review.
See A.R.S. § 36–445. The purpose of peer review is to “reduc[e] morbidity
and mortality and for the improvement of the care of patients provided in
the institution.”

Id.

¶15

          “A hospital is a place fraught with constant pressure and
emergency. In such an atmosphere, personal animosity, jealousy, anger
and irritation can be expected, especially when the process of peer review
is involved.” Scappatura v. Baptist Hosp. of Phoenix, 

120 Ariz. 204

, 210 (App.
1978). Thus, the legislature created immunity for participants and hospitals
within the peer review process, thereby protecting them from civil damages
or legal action in consequence of their involvement in the peer review
process. See A.R.S. § 36-445.02. The statute reads as follows:

       Immunity relating to review of medical practices . . . The only
       legal action which may be maintained by a licensed health
       care provider based on the performance or nonperformance
       of such duties and functions is an action for injunctive relief
       seeking to correct an erroneous decision or procedure. The
       review shall be limited to a review of the record. If the record
       shows that the denial, revocation, limitation or suspension of
       membership or privileges is supported by substantial evidence,
       no injunction shall issue.

See A.R.S. § 36-445.02(B) (emphasis added). We review peer review
proceedings for both procedural and substantive errors and employ
a deferential standard of review. Hourani v. Benson Hosp., 

211 Ariz.
427

, 431–32 (App. 2005).




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                      TAKIEH v. BANNER HEALTH
                          Decision of the Court

       C.     Injunctive Relief

¶16           As noted, injunctive relief is the only remedy available under
A.R.S. § 36-445.02(B). The grant or denial of a preliminary injunction is
within the sound discretion of the superior court and we will not reverse
that decision absent an abuse of that discretion. Valley Med. Specialists v.
Farber, 

194 Ariz. 363

, 366 (1999). A party seeking a preliminary injunction
must show (1) a strong likelihood of success on the merits, (2) possibility of
irreparable injury, (3) the balance of hardships favors the party seeking the
injunction, and (4) public policy is in favor of the injunction. IB Prop.
Holdings, LLC v. Ranch Del Mar Apartments Ltd. P’ship, 

228 Ariz. 61

, 64, ¶ 9
(App. 2011).

¶17            Sharifi sought injunctive relief to stop Banner from reporting
any non-final disciplinary action to the Data Bank. The superior court
issued a temporary restraining order (“TRO”), but it expired in late
December 2018, and the court declined to extend it. The court found no
irreparable harm, reasoning that because a process exists that would allow
Sharifi to seek a “‘voiding report’ which would reverse the negative impact
of the report,” any potential harm was not irreparable. Once the TRO
expired, Banner could properly finalize the revocation of Sharifi’s staff
privileges and report his status to the Data Bank. The court did not abuse
its discretion in denying an extension of the TRO.

              1.     Procedural Defects

¶18            Sharifi argues numerous procedural defects occurred
throughout the peer review process. The right to a “fair trial in a fair
tribunal” is “intrinsic to due process.” Pavlik v. Chinle Unified Sch. Dist. No.
24, 

195 Ariz. 148

, 152, ¶ 12 (App. 1999) (citation omitted). “Every person is
entitled to a fair administrative hearing . . . rendered by an impartial
decisionmaker.”

Id. And due process

of law contemplates a “fair trial in a
fair tribunal.” United States v. Superior Court, 

144 Ariz. 265

, 280 (1985)
(quoting In re Murchison, 

349 U.S. 133

, 136 (1955)).

¶19          Here, the superior court relied on Scappatura and explained
that review of Sharifi’s procedural challenges was limited to whether the
hospital acted “unlawfully, arbitrarily or capriciously in the
implementation of the bylaws.” 

See 120 Ariz. at 208

. Section 36-445.02
limits the court’s review to an examination of the record to determine
whether substantial evidence supports a revocation of staff privileges and
whether the hospital substantially complied with its Bylaws in reaching its
decision.



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                      TAKIEH v. BANNER HEALTH
                          Decision of the Court

¶20            Sharifi first argues that Dr. Hirsch should not have been
appointed as an external reviewer because he did not practice in the same
subspecialty of Interventional Cardiology and because he worked for
another entity owned by Banner. The Bylaws require that an investigation
take place and that a peer review committee be established, including
appointment of at least one practitioner not employed by Banner who is
actively participating in the same specialty as the practitioner being
reviewed. Any error in the selection of Dr. Hirsch occurred at the
investigation stage, not the hearing stage. And Sharifi had the opportunity
to cross-examine Dr. Hirsch at the Fair Hearing, which he did extensively,
as did his attorney.

¶21           Sharifi also argues the time limit for the Fair Hearing was
arbitrary and resulted in prejudice. The hearing lasted nearly sixteen hours.
Sharifi requested additional time, but the hearing officer asked the Panel
members if they would like additional time for the hearing and they all
responded they felt they had enough information. The Panel also explained
that how Sharifi spent the time was up to him and the fact that he did not
have time to testify was a problem “entirely of Dr. Sharifi’s own making.”
Of the total hearing time, Sharifi used 395 minutes and the hospital used
300 minutes. There is no evidence that the time allotted was insufficient or
resulted in prejudice.

¶22           Sharifi asserts he was prejudiced because one of the external
reviewers submitted his report the same week as the Fair Hearing and the
Bylaws require reports to be submitted 14 days in advance. While
submission of the report after the deadline may have violated the Bylaws,
Sharifi does not explain how this resulted in prejudice.

¶23            Sharifi takes the position that Hourani stands for the principle
that a showing of any error—procedural or substantive—would warrant
injunctive 

relief. 211 Ariz. at 431

–32. But this overstates the holding in
Hourani, which held that plaintiffs can “seek injunctive relief for an
erroneous decision or procedure occurring during the peer review process.”

Id.
at 431, ¶ 9

(citing 1984 Ariz. Sess. Laws, ch. 119, § 1) (emphasis added).
Unlike the present case, in Hourani the superior court found multiple
blatant procedural defects.

Id. at 433, ¶¶ 17, 20.

Sharifi had notice prior to
each stage of the peer review process and there were multiple pre-hearing
meetings with the hearing officer and parties to discuss procedures. He
prepared position statements and exhibits. And Sharifi was given a full
opportunity to present evidence, including testimony from nine of his own
medical witnesses, as well as cross-examination of adverse witnesses. In
fact, both Sharifi and his counsel independently conducted cross-


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                      TAKIEH v. BANNER HEALTH
                          Decision of the Court

examinations of witnesses. Sharifi failed to show that any procedural
defects affected the outcome, let alone that any occurred.

¶24            The superior court appropriately considered “whether the
procedures used were arbitrary, capricious, or unlawful,” and whether the
alleged procedural violations harmed or prejudiced Sharifi. After review,
we conclude the process was fair and thorough, and Banner substantially
complied with the Bylaws. Thus, Sharifi has not shown that denial of
injunctive relief was improper based on procedural irregularities.

              2.     Substantial Evidence

¶25            Substantial evidence in the record supports the revocation of
Sharifi’s staff privileges for each of the three grounds alleged during the
peer review process: (1) deficits in care given to patients, (2) altering
medical records, and (3) bullying behavior.

¶26            Consistent with the superior court’s analysis, we will not
substitute our own judgment for that of the Board on issues where expertise
is involved. DeGroot v. Ariz. Racing Comm’n, 

141 Ariz. 331

, 336 (App. 1984)
(A court may not “function as a ‘super agency’ and substitute its own
judgment for that of the agency where factual questions and agency
expertise are involved.”). The Board heard substantial evidence concerning
the deficits in care caused by Sharifi in multiple situations. For example,
Sharifi failed to consult with a patient’s treating physician and used
thrombolytic therapy in a post-surgery case even when it was
contraindicated, and the patient died. There is also substantial evidence
that Sharifi altered medical records. And as the superior court found,
“Sharifi never denied modifying the records, and instead took the position
that the alterations were acceptable edits.” Likewise, Sharifi did not deny
any of the allegations of bullying behavior. Because substantial evidence
supports the revocation of Sharifi’s staff privileges, Sharifi was not entitled
to injunctive relief.

              3.     Dismissal of Other Claims

¶27           Sharifi asserts the superior court erred in dismissing his
contract-related claims (breach of contract, implied covenant of good faith
and fair dealing) against Banner. We review de novo the dismissal of a
complaint under Rule 12(b)(6). Swenson v. Cty. of Pinal, 

243 Ariz. 122

, 125,
¶ 5 (App. 2017). Dismissal is appropriate “only if as a matter of law . . .
plaintiff[] would not be entitled to relief under any interpretation of the
facts susceptible of proof.”

Id. (quotation and citation

omitted).



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                      TAKIEH v. BANNER HEALTH
                          Decision of the Court

¶28           A hospital’s bylaws create a contract with staff and those
bylaws outline the procedures the hospital will follow during disciplinary
actions. See Samaritan Health Sys. v. Superior Court, 

194 Ariz. 284

, 288, ¶ 12
(App. 1998). But all Sharifi’s claims unrelated to injunctive relief are
expressly barred by § 36-445.02. His contract-related claims are precisely
the type of action the immunity statute was intended to preclude. Those
claims were properly dismissed.

       D.     Denial of a New Trial

¶29           We review the denial of a motion for new trial for an abuse of
discretion. Jaynes v. McConnell, 

238 Ariz. 211

, 215–16, ¶ 13 (App. 2015). The
superior court concluded that Sharifi failed to show the court had the
authority to consider the new declarations and thus he did not establish
entitlement to relief under Rule 59(a)(1)(A) or (B).

¶30           Sharifi argued in his Rule 59 motion that those involved with
the peer review process were biased against him because of his race and
religion and aimed to “get rid of [him] at all costs.” To show bias, Sharifi
needed to cite to evidence in the record making it affirmatively probable
the alleged bias or misconduct changed the outcome of the administrative
proceeding. See 

Hourani, 211 Ariz. at 434

, ¶ 23. All decision makers, judges,
and administrative tribunals alike, are entitled to a presumption of
“honesty and integrity.” 

Pavlik, 195 Ariz. at 155

, ¶ 27. Sharifi did not
overcome that presumption.

¶31           None of the declarations introduced in Sharifi’s motion for a
new trial were included in the record prior to the Rule 59 motion. The
declarations contained allegations that some members of the peer review
process made negative remarks about Sharifi’s race and religion. But
Sharifi failed to prove the superior court had the authority to consider
declarations that were not previously part of the record. As the superior
court held, Sharifi “failed to prove any actual bias” of the Panel, and the
declarations attached to his motion did not prove any such bias. We find
no abuse of discretion in the court’s denial of the Rule 59 motion.




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                     TAKIEH v. BANNER HEALTH
                         Decision of the Court

                             CONCLUSION

¶32          We affirm the court’s revocation of Sharifi’s staff privileges
and the subsequent denial of his motion for new trial. We award taxable
costs to Banner subject to compliance with ARCAP 21.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




                                      10

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