Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIANA P. SMIGAJ, M.D. and                           No.  29415-3-III
CASCADE WOMEN'S                                 )
HEALTHCARE ASSOCIATES,                          )
P.L.L.C.,                                       )   Division Three
                                                )
                      Appellants,               )
                                                )
              v.                                )
                                                )
YAKIMA VALLEY MEMORIAL                          )
HOSPITAL ASSOCIATION,                           )
RICHARD W. LINNEWEH, JR., an                    )   PUBLISHED OPINION
individual, RICHARD W. LINNEWEH,                )
JR. and JANE DOE LINNEWEH, JR.,                 )
a marital community, ROGER                      )
ROWLES, M.D., an individual, CARL               )
OLDEN, M.D., an individual, and                 )
CARL OLDEN, M.D. and JANE DOE                   )
OLDEN, a marital community,                     )
                                                )
                      Respondents.              )
                                                )

       Kulik, C.J.  --  The Perinatal Quality Assurance Committee (PQAC), a peer review 

committee at Yakima Valley Memorial Hospital, recommended the suspension of Dr. 

Diana Smigaj's hospital privileges.  Dr. Brian Padilla, the medical chief of staff, agreed,  

No. 29415-3-III
Smigaj v. Yakima Valley Mem'l Hosp.

and notified Dr. Smigaj that her hospital privileges were suspended as of September 5, 

2008.  Dr. Smigaj's hospital privileges were reinstated by the medical executive 

committee (MEC) on September 16, subject to an external review of her cases for the 

following three month period.  The reinstatement of Dr. Smigaj's privileges was not 

retroactive.  

       Dr. Smigaj filed a lawsuit against Yakima Valley Memorial Hospital, various 

doctors and administrators (collectively Memorial), challenging her 11-day suspension.  

The court granted Memorial's motion for summary judgment, dismissing all of Dr. 

Smigaj's claims. On appeal, Dr. Smigaj argues that the trial court erred by (1) granting 
Memorial immunity under the Health Care Quality Improvement Act of 1986 (HCQIA),1

(2) dismissing Dr. Smigaj's claims under CR 12(c) and RCW 7.71.030, (3) dismissing her 

defamation action, and (4) awarding attorney fees to Memorial in the amount of 

$534,415.  

       We conclude that RCW 7.71.020, the HCQIA, applies here because the 

professional review action related directly to Dr. Smigaj's competence and conduct. And 

a reasonable jury could conclude that Dr. Smigaj has shown, by a preponderance of the 

evidence, that Memorial's professional review action did not meet two of the elements 

       1 HCQIA is codified as 42 U.S.C. §§ 11101-11152.  The Washington legislature 
adopted HCQIA in RCW 7.71.020.

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required for immunity.  We, therefore, reverse the summary judgment and remand for 

trial.  The trial court properly dismissed Dr. Smigaj's defamation claim concerning 

Memorial's September 25, 2008 letter to Group Health, based on Dr. Smigaj's failure to 

show damages.  

                                            FACTS

       Dr. Diana Smigaj is a board-certified obstetrician/gynecologist (ob/gyn) who is 

also board certified in maternal-fetal medicine (perinatology).  In 2000, Dr. Smigaj 

incorporated her private practice as Cascade Women's Healthcare Associates.  

       Richard W. Linneweh, Jr., has been the chief executive officer (CEO) of Memorial 

since the mid-1970s.  Kay Anyan is Memorial's director of medical staff services.  She 

works for Mr. Linneweh and provides administrative services to medical staff committees 

and physicians.  She attends PQAC meetings as Memorial's representative.  

       In 1999, Mr. Linneweh appointed Dr. Roger Rowles as chairman of the PQAC.  

Dr. Rowles is a board-certified ob/gyn who has practiced in Yakima since 1979.  PQAC 

is a medical quality improvement peer review committee.  One of the duties of PQAC is 

to "improve performance by assessing problems, processes, and outcomes of care, 

reaching conclusions and making recommendations to the practitioners or departments 

involved."  Clerk's Papers (CP) at 512. PQAC consists of five physicians, who are 

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voting members, and various ex-officio members who do not vote.  

       Dr. Carl Olden is a family physician who Mr. Linneweh appointed to be 

Memorial's director of quality assurance.  Dr. Olden attended PQAC meetings as 

Memorial's medical director for quality assurance. 

       May 30, 2008 PQAC Meeting. On May 30, 2008, PQAC reviewed the case of 

patient JA who had been transferred to Dr. Smigaj's care by a physician in Sunnyside, 

Washington. 

       JA was 16 years old and was transferred to Memorial because of her high risk 

pregnancy.  She was 32 weeks pregnant and suffering from preeclampsia involving severe 

headaches, elevated protein levels, and high blood pressure.  The patient was admitted to 

Memorial at approximately 7:00 p.m., but was not seen by Dr. Smigaj until 

approximately 6:00 a.m. the following morning.  During this period, Dr. Smigaj gave the 

nursing staff telephone orders to initiate induction.  

       About 4:00 a.m., after hearing reports of problems of a nonreassuring fetal heart 

rate tracing, Dr. Smigaj gave the nursing staff orders to rupture the patient's membranes 

and place a fetal heart rate monitor.  Implementation of this order required the artificial 

rupture of the patient's membranes, which, under medical staff policy, was outside the 

scope of nursing practice.  Dr. Smigaj was called to the hospital at about 5:00 a.m. 

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because of concerns over the fetal heart rate.  She delivered the infant by cesarean section 

by 7:25 a.m.  

       June 20 PQAC Meeting.  By letter of June 13, 2008, PQAC advised Dr. Smigaj of 

its review of the JA case and invited her to attend a special meeting on June 20.  Dr. 

Smigaj did not deny that she could have seen the patient earlier, but she objected to being 

criticized for not seeing the patient within one hour when this was not an official policy 

and had not been required of other ob/gyns.  Dr. Smigaj did not accept PQAC's 

suggestion that she should have seen this patient shortly after admission and that she 

should have confirmed the fetal position before initiating induction.  Dr. Smigaj informed 

PQAC that she would not voluntarily adopt this practice, but that she would adopt this 

practice if PQAC promulgated a policy.  

       After Dr. Smigaj left the meeting, PQAC discussed various disciplinary measures. 

Dr. Smigaj was not informed that the meeting continued and that disciplinary measures 

were discussed.  

       Following this meeting, members of PQAC were concerned about what they 

viewed to be unacceptably poor clinical judgment represented by the JA case and what 

PQAC perceived to be Dr. Smigaj's failure to appreciate the seriousness of her 

deficiency.  PQAC members felt that a formal policy should not be required to remind a 

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physician that a high-risk obstetrical patient like JA needed to be seen promptly.  

       Beginning on June 20, PQAC was designated as an "ad hoc committee" to 

investigate Dr. Smigaj's practice.  

       July 9 PQAC Meeting. At this meeting, Ms. Anyan provided PQAC with two 

timelines containing quality review activities from Dr. Smigaj's file from 1995 to 2008.  

Dr. Rowles and Dr. Olden presented four examples of what they claimed highlighted 

poor practice patterns: (1) Dr. Smigaj's extended proctoring period required in 1995 and 

1997 through 1998; (2) a case in December 2004 involving a massive hemorrhage where 

Dr. Smigaj complied with eight conditions that were imposed; (3) a case in 2007 

involving a hemorrhage following a caesarian section where additional training was 

recommended; and (4) several disruptive physician reports that were not shown or 

explained to PQAC members, but which reportedly involved yelling.

       PQAC discussed five disciplinary measures, including reduction of privileges to 

midwifery level and removal of privileges. Ms. Anyan explained that if PQAC 

recommended a reduction of privileges, legal counsel would have to be contacted and the 

JA case records would have to be sent to an external reviewer.  

       Dr. Smigaj testified later that the two timelines omitted certain positive 

information in her file.  In her view, Mr. Linneweh imposed the proctoring to disparage 

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her competence.  Dr. Smigaj pointed out that none of the physicians who proctored her 

had any criticism of her management of patients.  She also stated that she had complied 

with the eight conditions imposed by Dr. Olden and Dr. Rowles.  Dr. Smigaj asserts the 

case involving the hemorrhage following a caesarian section had been well managed and 

had been misrepresented to PQAC.  She also stated that the disruptive physician reports 

were never shown or explained to PQAC.  

       July 16 Letter. On July 16, Dr. Rowles wrote to Dr. Smigaj informing her of the 

July 9 meeting, PQAC's concerns, and the decision to engage an external reviewer.  

PQAC asked Dr. Smigaj to provide a written response to PQAC concerns and to 

voluntarily agree not to accept transfer of patients until PQAC's review of the JA case 

was completed.  Dr. Smigaj would not agree to refuse further transfer patients but she did 

agree to see all such patients within one hour of admission, to immediately prepare a 

history and physical, and to consult with Dr. Rowles regarding her management plan for 

these patients.  In this way, any problems with the JA case were resolved.

       July 21 PQAC Meeting. After this meeting, Dr. Rowles wrote to Dr. Smigaj 

informing her of this meeting and its purpose of considering "appropriate interim 

precautionary steps pending ongoing evaluation of your clinical practice." CP at 2893.

       Dr. Tomlinson. In late July, Memorial hired Dr. Mark Tomlinson, an ob/gyn 

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perinatologist in Portland, to perform an independent review of JA's records.  Dr. 

Tomlinson spoke with PQAC by conference call on July 30.  Dr. Smigaj was not present.

       Dr. Tomlinson told PQAC that he had two areas of concern.  The first area of 

concern was Dr. Smigaj's failure to see the patient before initiating the induction.  Dr. 

Tomlinson stated that the patient deserved a personal evaluation and that Dr. Smigaj 

should have evaluated the status and position of the infant before induction.  Dr. 

Tomlinson's second area of concern involved the nursing staff's failure to contact Dr. 

Smigaj about the poor fetal heart rate monitor tracing.  At his deposition, Dr. Tomlinson 

testified that when he identified an area of concern, it was the same as saying that the 

performance fell below the standard of care.  

       PQAC wrote to Dr. Smigaj informing her that it had met to consider her written 

responses, the conference call with Dr. Tomlinson, and the report by Dr. Mize Connor, 

which had been provided by Dr. Smigaj.  

       August 13 Conference Call. On August 8, Ms. Anyan sent the records of WC, 

another patient of Dr. Smigaj, to Dr. Tomlinson for review.

       WC was admitted to Memorial with complaints of back pain and vaginal 

discharge.  WC was about 25 weeks pregnant.  Initial monitoring indicated contractions.  

A cervical examination revealed ruptured membranes and feet present in the cervix.  An 

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ultrasound confirmed a footling breech presentation of the fetus.  

       Dr. Smigaj saw WC and arranged for her to be transported to the University of 

Washington Hospital because of the age of the fetus.  Dr. Smigaj left the hospital.  As 

transport preparations were being made, the patient began to complain of contractions.  A 

vaginal exam revealed legs in the vagina, indicating an imminent breech delivery.  A

family practitioner and a midwife delivered the breech, but the head became trapped.  Dr. 

Smigaj returned to the hospital.  Incisions were made in the cervix and the head was 

ultimately freed.  Efforts to resuscitate the infant were unsuccessful.  

       In an August 13 conference call, Dr. Rowles, Dr. Olden, and Ms. Anyan discussed 

the WC case with Dr. Tomlinson.  Dr. Rowles testified that PQAC requested a written 

report from Dr. Tomlinson without, apparently, giving any specific deadline for the

report.  

       August 15 PQAC Meeting. At this meeting, PQAC considered the care provided to 

JA, WC, and a third patient, LH.  

       Information concerning the telephone conversation with Dr. Tomlinson about the 

WC case was presented to PQAC.  Presumably, this information was presented by Dr. 

Rowles.  The minutes of the meeting reflect that Dr. Tomlinson had concerns about the 

accuracy of the determination that WC was not in labor.  However, Dr. Tomlinson stated

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that if the physician determined that the patient was not in labor, the transport decision 

was appropriate.  Dr. Tomlinson did conclude that Dr. Smigaj should have remained with 

the patient until the transport arrived and that she should have considered a consultation 

with an onsite neonatologist prior to transport.  Dr. Tomlinson determined that the 

management of the patient's hypertension in the office setting did not meet the standard 

of care.  However, Dr. Smigaj later testified that her office notes showed that WC refused 

treatment.  

       PQAC agreed on five concerns related to the WC case that required a written 

response from Dr. Smigaj. 

       Dr. Smigaj contends that Dr. Rowles misrepresented the facts when he told PQAC 

that Dr. Smigaj provided substandard care to WC.  She maintains that Dr. Tomlinson's 

written report does not support PQAC's allegations.  Dr. Smigaj states that she told 

PQAC twice that WC refused treatment of her hypertension. 

       At the August 15 meeting, information was also presented about the LH case.  Dr. 

Smigaj saw LH six days before she delivered.  At that time, Dr. Smigaj concluded that the 

fetal position was head down.  Fetal position was not checked again when, six days later, 

Dr. Smigaj ordered that induction be initiated.  The fetus was in a breech position and a 

difficult delivery followed.  The infant was flaccid when delivered but was resuscitated 

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with the help of a neonatal intensive care unit nurse and others.  

       PQAC also considered a compilation of minutes taken at its meetings from 1999 

through 2008 that included consideration of Dr. Smigaj's cases.  Following the 

conclusion of the August 15 meeting, Dr. Rowles wrote to Dr. Smigaj informing her of 

the meeting and the review of the WC and LH cases.  Dr. Rowles asked her to provide 

written responses to PQAC's concerns about the cases and to attend the PQAC meeting 

on August 29.  

       August 29 PQAC Meeting. At this meeting, Dr. Smigaj explained her care of WC 

and LH and provided copies of an independent evaluation of both cases by Dr. Connor, 

an ob/gyn in Bellevue, Washington.  In Dr. Connor's opinion, nothing in Dr. Smigaj's 

management of either case deserved criticism. 

       Dr. Smigaj contends that after she left the meeting, Dr. Rowles added two more 

criticisms of the LH case.  The two criticisms concerned: (1) Dr. Smigaj's failure to use 

Piper forceps to facilitate the delivery of LH's infant, and (2) her decision to perform an 

induction on an allegedly unripe cervix.  

       September 3 PQAC Meeting. On September 2, Ms. Anyan sent the records in the 

LH case to Dr. Tomlinson.  This case had been presented to PQAC on August 15.  On 

September 3, Dr. Tomlinson spoke by telephone with Ms. Anyan.  Dr. Tomlinson stated 

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that he had no criticism of Dr. Smigaj's work on the case.  

       At the September 3 meeting, Ms. Anyan reported that Dr. Tomlinson said that 

substandard care was provided to LH but she did not clarify that Dr. Tomlinson was 

critical of the nursing staff, not Dr. Smigaj.  Ms. Anyan stated that she believed PQAC 

understood that Dr. Smigaj had not provided substandard care.  

       PQAC felt that the three cases -- JA, WC and LH -- reflected poor clinical 

judgment.  PQAC concluded that these cases, combined with past quality issues reviewed 

by PQAC, reflected a continuing pattern of quality concerns including poor judgment;

deficiencies in knowledge, surgical skills, and communication skills; and an inability to 

learn from previously identified poor practice patterns.    

       PQAC unanimously approved a motion that Dr. Smigaj's continued practice 

constituted an unacceptable risk to patients.  PQAC recommended a precautionary 

suspension while proceeding forward with an external review of all of Dr. Smigaj's 

current and past cases raising quality concerns.  PQAC directed Ms. Anyan to forward 

the recommendation to the chief of the medical staff, Dr. Padilla. 

       September 4 Suspension. Ms. Anyan presented Dr. Padilla with a letter drafted by 

Memorial's attorneys.  Dr. Padilla notified Dr. Smigaj that her privileges were suspended 

as of 12:01 a.m. on September 5, 2008.  Before making his decision, Dr. Padilla reviewed 

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the reports from Dr. Tomlinson and Dr. Connor, and the minutes of PQAC meetings.  On 

the morning of September 4, Dr. Padilla discussed the PQAC recommendation with Dr. 

Rowles.  Dr. Padilla called Dr. Smigaj and informed her of the suspension.  He told Dr. 

Smigaj that he would initiate further review.  He also advised her that the MEC meeting 

to review the precautionary suspension would be held on September 16.  Dr. Padilla 

invited her to attend. 

       September 16 MEC Meeting. Prior to the September 16 meeting, Dr. Padilla 

directed that all material regarding this matter be taken to the MEC office where it could 

be reviewed by MEC members.  He also called each voting member and urged him or her 

to review the materials.  Almost all of the voting members reviewed the materials before 

the meeting.  

       At the meeting, Dr. Rowles explained the PQAC recommendation.  Dr. Smigaj 

requested that the decision be nullified. 

       In the following discussion, Dr. Kevin Harrington, chair of Memorial's ob/gyn 

department, stated that he did not believe the suspension was justified.  He proposed a 

compromise under which MEC would lift the suspension and reinstate Dr. Smigaj's 

privileges, not retroactively as she requested, but effective September 16, subject to an 

external review of each of her cases for a three month period following the reinstatement.  

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The MEC approved the compromise with the additional recommendations that Dr. Smigaj 

see transfer patients in a timely manner, that she remain with her patients being 

transferred from Memorial until the transport arrived, and that she consult with a 

neonatologist on high-risk obstetric patients.  

       Three Month External Review. Dr. Smigaj was immediately informed that her 

privileges at Memorial had been reinstated.  The external review performed as a condition 

of reinstatement involved 35 cases.  The reviewers judged four cases to have significant 

deviation from the standard of care and two more to have minor deviations. 

       Group Health. On September 25, Memorial responded to an inquiry from Group 

Health by indicating that the suspension of Dr. Smigaj's privileges was imposed as of 

September 5 based on three cases, meetings with Dr. Smigaj, and the opinions of external

experts.  Memorial stated that the MEC voted unanimously to reinstate Dr. Smigaj 

effective September 16 and directed external review of her cases from September 16 to 

December 17.  

       Litigation. Dr. Smigaj filed a complaint seeking damages, declaratory, and 

injunctive relief.  She alleged the suspension was arbitrary and capricious; illegal because

it was motivated by gender discrimination and anticompetitive animus; void because 

Memorial did not follow its by-laws and rules; a breach of contract; a violation of 

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common law right to fair procedure; the result of a sham peer review; a breach of 

fiduciary duty; a tortious interference with a business expectancy; a violation of the 

Consumer Protection Act, chapter 19.86 RCW; and defamatory. 

       Memorial filed a motion to dismiss based on RCW 7.71.030(1), which provides an 

exclusive remedy for professional review actions "not related to the competence or 

professional conduct of a health care provider."  Memorial contended that Dr. Smigaj's 

suspension was not related to physician competence because Dr. Smigaj's complaint 

alleged the suspension was based on discrimination and unfair treatment by Memorial.  

The court denied Memorial's motion, concluding that "the court must focus on the action 

taken by the professional review body, not Dr. Smigaj's allegations."  CP at 193.

       Memorial later renewed its RCW 7.71.030 argument in a motion for judgment on 

the pleadings under CR 12(c).  Memorial also filed a motion for summary judgment 

asserting immunity under HCQIA.  Dr. Smigaj filed a motion for judgment as a matter of 

law.  The court, applying HCQIA immunity, granted summary judgment in favor of

Memorial.  The court dismissed Dr. Smigaj's complaint under CR 12(c), determining that 

RCW 7.71.030 precluded any of Dr. Smigaj's remaining causes of action where 

immunity had not been granted.  The trial court awarded attorney fees to Memorial in the 

amount of $534,415.  This appeal follows.  

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                                         ANALYSIS

       Chapter 7.71 RCW.  In 1986, Congress enacted the Health Care Quality 

Improvement Act of 1986 (HCQIA), 42 U.S.C. §§ 11101-11152, to improve medical care 

by encouraging physician self-regulation by granting immunity from suits for money 

damages to participants in professional peer review actions.  Mathews v. Lancaster Gen. 

Hosp., 87 F.3d 624, 632 (3d Cir. 1996).  HCQIA provides immunity from damages to 

participants in a professional review action if the action satisfies the four elements of 

42 U.S.C. § 11112(a).  Significantly, HCQIA creates a presumption that a peer review 

action meets the four elements unless the plaintiff rebuts this presumption by a 

preponderance of the evidence.  Cowell v. Good Samaritan Cmty. Health Care, 153 Wn. 

App. 911, 925-26, 225 P.3d 294 (2009).   

       Washington's legislature adopted the HCQIA by enacting the Washington health 

care peer review act, codified at chapter 7.71 RCW.  RCW 7.71.010 recognizes the 

benefits of peer review and allows only those actions prescribed in RCW 7.71.020 and 
.030.  When adopting RCW 7.71.020,2 the legislature incorporated HCQIA (codified as 

42 U.S.C. § 11101-11152).  Under RCW 7.71.020/HCQIA, immunity from damages is 

granted to participants of peer review actions based on physician competence and 

       2 RCW 7.71.020 reads as follows: "Pursuant to P.L. 99-660 Sec. 411(c)(2), Title 
IV of that act shall apply in Washington state as of July 26, 1987."

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professional conduct. RCW 7.71.020 achieves its purpose by granting immunity to 

peer review participants.  This provision does not create a new cause of action.

       While RCW 7.71.020 provides a grant of immunity for professional review actions 

based on competence and professional conduct, RCW 7.71.030(1) provides the exclusive 

remedy for peer review actions "found to be based on matters not related to the 

competence or professional conduct of a health care provider." (Emphasis added.)  

Significantly, actions allowed under RCW 7.71.030 are limited to appropriate injunctive 

relief, and damages are allowed only for lost earnings directly attributable to the action 

taken by the professional review body.

       The trial court concluded that Dr. Smigaj failed to rebut Memorial's presumed 

HCQIA immunity under RCW 7.71.020. Applying RCW 7.71.030, the court dismissed 

Dr. Smigaj's claim for injunctive relief and barred all of her common law and statutory 

claims alleging that Memorial had misused the peer review process for anticompetitive 

purposes unrelated to patient care.    

       In making its decision, the trial court focused on Dr. Smigaj's allegations 

concerning anticompetitive motives.  But the applicability of RCW 7.71.020 and .030 

depends on the nature of the peer review action.  HCQIA defines "professional review 

action" as "an action or recommendation of a professional review body . . . which is 

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based on the competence or professional conduct of an individual physician (which 

conduct affects or could affect adversely the health or welfare of a patient or patients), 

and which affects (or may affect) adversely the clinical privileges . . . of the physician."

42 U.S.C. 

§ 11151(9) (emphasis added).  

       42 U.S.C. § 11151(9) further provides that an action is not considered to be based 

on the competence or professional conduct of a physician if the action is primarily based

on (A) a physician's association with a professional society, (B) a physician's fees or 

advertising, (C) a physician's participation in certain types of health plans, (D) a 

physician's association with a private group practice, or (E) any other matter that does not 

relate to the competence or professional conduct of a physician. 

       A "professional review action" applies to an action or recommendation of a 

professional review body taken in response to the physician's competence or professional 

conduct.  Morgan v. PeaceHealth, Inc., 101 Wn. App. 750, 768, 14 P.3d 773 (2000).  An 

"announcement of a change in a physician's status is inherently part of the 'professional 

review action' protected by the HCQIA."  Gabaldoni v. Wash. County Hosp. Ass'n, 250 

F.3d 255, 260 n.4 (4th Cir. 2001).

       Here, the letter of suspension stated that the professional review action was due to 

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poor clinical judgment in three cases, a misleading dictation in a patient chart, and 

disruptive practitioner reports. The complaint asserts many causes of action, but these 

claims arise from the peer review decision based on conclusions relating to Dr. Smigaj's 

clinical competence and conduct as a physician.  As a result, Dr. Smigaj's claims must be 

reviewed under RCW 7.71.020.

       HCQIA -- RCW 7.71.020 Immunity.  HCQIA creates a presumption that a peer 

review decision meets the four elements of 42 U.S.C. § 11112(a) unless the plaintiff  

rebuts this presumption by a preponderance of the evidence.  Cowell, 153 Wn. App. at 

925-26.  The four elements are: (1) the professional review action was taken in the 

reasonable belief that it was in furtherance of quality health care, (2) the professional 

review decision was made after a reasonable effort to obtain the facts, (3) the physician 

received adequate notice and procedures that are fair under the circumstances, and (4) the 

respondents acted in the reasonable belief that, under the facts known, the suspension was 

warranted.  Id. (quoting 42 U.S.C. § 11112(a)) These four elements are measured by the 

objective belief standard that examines the totality of the circumstances.  Cowell, 153 

Wn. App. at 925.  

       This rebuttable presumption changes the standard on summary judgment by 

assigning to Dr. Smigaj the burden of establishing that Memorial did not meet the 

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requirements for immunity.  Morgan, 101 Wn. App. at 766-67.  Hence, this court, 

viewing the evidence in the light most favorable to Dr. Smigaj, must determine whether 

Dr. Smigaj has demonstrated that a reasonable jury could conclude, by a preponderance 

of the evidence, that Dr. Smigaj's suspension did not satisfy each of the four elements of 

42 U.S.C. § 11112(a). See Cowell, 153 Wn. App. at 926.

       Element 1

        The inquiry under the first element of 42 U.S.C. § 11112(a)(1) examines whether

the professional review action was taken "in the reasonable belief that the action was in

the furtherance of quality health care."  On summary judgment, Dr. Smigaj must show 

that a reasonable jury could conclude by a preponderance of the evidence that the facts 

were insufficient to support a reasonable belief that the suspension of her privileges was 

in furtherance of quality health care.

        The reasonable belief standard is satisfied if an objective view of the record 

discloses sufficient support for the committee's decision.  Ritten v. Lapeer Reg'l Med. 

Ctr., 611 F. Supp. 2d 696, 728 (E.D. Mich. 2009).  Significantly, the factual basis for a 

peer review action is sufficient unless the information relied upon "was so obviously 

mistaken or inadequate such as to make reliance on it unreasonable."  Fox v. Parma 

Comty. Gen. Hosp., 160 Ohio App. 3d 409, 418, 2005-Ohio-1665, 827 N.E.2d 787; see

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Cowell, 153 Wn. App. at 933 n.37. The presumption of immunity is not rebutted by 

proof that the standard of care was met or that the reviewers reached an incorrect 

conclusion.  McLeay v. Bergan Mercy Health Sys. Corp., 271 Neb. 602, 612, 714 

N.W.2d 7 (2006). 

        At the time PQAC recommended the precautionary suspension of Dr. Smigaj's 

clinical privileges, PQAC relied primarily on the JA, LH, and WC cases.

        Applying the reasonable belief standard, we conclude that Dr. Smigaj has failed to 

demonstrate by a preponderance of the evidence that Memorial's professional review 

action was not made in the reasonable belief that it was in furtherance of quality health 

care.

       Element 2

       The second element of immunity asks whether the decision to recommend a 

precautionary suspension was made after a reasonable effort to obtain the facts. 42 

U.S.C. § 11112(a)(2).  The relevant inquiry under the second element "is whether 'the 

totality of the process leading up to the professional review action evidenced a reasonable 

effort to the obtain the facts,'" not a perfect effort.  Cowell, 153 Wn. App. at 931 

(quoting Morgan, 101 Wn. App. at 770).  Accordingly, the court, taking all of the 

evidence in the light most favorable to Dr. Smigaj, must determine whether Dr. Smigaj 

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provided sufficient evidence to permit a jury to find, by a preponderance of the evidence, 

that Memorial failed to make a reasonable effort to obtain the facts of the matter.  See 42 

U.S.C. § 11112(a)(2).

       In order to rebut the presumption of reasonableness, Dr. Smigaj must show that the 

fact-finding process conducted by Memorial was not objectively reasonable.  See Poliner

v. Texas Health Sys., 537 F.3d 368, 379-80 (5th Cir. 2008).  Mere reliance on a report or 

an asserted fact is not sufficient; a thorough investigation is required.  See Brown v. 

Presbyterian Healthcare Servs., 101 F.3d 1324, 1333-34 (10th Cir. 1996).  The court 

must consider the totality of the process culminating in the professional review action.  

Cowell, 153 Wn. App. at 931.

       Dr. Smigaj asserts that PQAC and Dr. Padilla were given incomplete and incorrect 

information when making the decision to suspend her hospital privileges.  Dr. Smigaj 

contends Memorial conducted its effort with preconceived conclusions and false 

information.  Dr. Smigaj points out that Dr. Tomlinson, an external reviewer, did not 

communicate directly with PQAC about the LH and WC cases.  Dr. Smigaj asserts that 

Dr. Rowles and Ms. Anyan incorrectly informed PQAC that Dr. Tomlinson concluded 

that Dr. Smigaj's care of these patients was substandard.  Dr. Smigaj also states she was 

not provided with copies of Dr. Tomlinson's reports.   

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       PQAC relied primarily on three cases -- JA, WC, and LH -- that were evaluated by 

Dr. Tomlinson.  Regarding JA, during a conference call, Dr. Tomlinson told PQAC that 

Dr. Smigaj delivered substandard care.  Dr. Smigaj was aware of Dr. Tomlinson's 

concerns, and the parties worked out an agreement where Dr. Smigaj agreed to see 

transport patients within one hour.  

       Importantly then, PQAC relied on Dr. Tomlinson's review of the LH and WC 

cases but PQAC never interviewed him about these cases and did not obtain his reports 

on these cases until after the suspension was imposed.  Instead, Dr. Rowles spoke with 

Dr. Tomlinson about the WC case and then reported his recollections to PQAC at the 

August 15 PQAC meeting.  On September 3, Ms. Anyan, who is not a physician, had a 

telephone conversation with Dr. Tomlinson about the LH case.  Ms. Anyan reported her

recollections of this call to PQAC.  Moreover, when Ms. Anyan made her report, she 

mistakenly implied that Dr. Tomlinson concluded that Dr. Smigaj provided substandard 

care to LH.  Dr. Tomlinson's written reports on LH and WC were not received until 

September 9, six days after the suspension had been imposed. 

       Not only did PQAC fail to arrange for a conference call or meeting with Dr. 

Tomlinson about WC and LH, PQAC also apparently made no effort to obtain Dr. 

Tomlinson's written reports in a timely manner.  Dr. Tomlinson completed his report on 

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No. 29415-3-III
Smigaj v. Yakima Valley Mem'l Hosp.

the WC case on August 26 and his report on LH on September 3.  Through the use of an e-

mail, fax, or conference call, PQAC could have obtained this information in a timely 

manner directly from Dr. Tomlinson.  

       In Cowell, the court considered the applicability of HCQIA immunity where a peer 

review committee suspended, and then terminated, a physician's privileges.  In its 

examination of the second element, the court concluded that under HCQIA, Dr. Cowell 

was entitled to a reasonable investigation, but not a perfect investigation.  Cowell, 153 

Wn. App. at 932 (quoting Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F.3d 25, 

43, (1st Cir. 2002)).  Here, it was reasonable for PQAC to obtain external review of the 

JA, WC, and LH cases.  But the failure of PQAC to take steps to obtain Dr. Tomlinson's 

opinions relating to WC and LH directly and accurately was unreasonable.  

       In Morgan, the court identified inadequacies in the hospital's investigation, 

including the failure to conduct interviews of other doctors, patients, and hospital 

employees.  Morgan, 101 Wn. App. at 770.  Ultimately, the court held that Dr. Morgan 

waived his right to complain by failing to cooperate with the investigation.  Id. at 771.

       PQAC did not interview any of Memorial's nurses or physicians.  And notably, 

PQAC did not interview Dr. Harrington, the ob/gyn department chair.  PQAC also did not 

investigate the disruptive physician reports concerning Dr. Smigaj.  In Perry v. Rado, the 

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No. 29415-3-III
Smigaj v. Yakima Valley Mem'l Hosp.

court found reasonable fact finding occurred where there was a 12-month investigation, 

physicians and staff were interviewed, and Dr. Perry was allowed to make statements.  

Perry v. Rado, 155 Wn. App. 626, 639-40, 230 P.3d 203, review denied, 169 Wn.2d 1024

(2010).  

       We conclude that a reasonable jury could conclude that Dr. Smigaj has 

demonstrated, by a preponderance of the evidence, that Memorial has not made a 

reasonable effort to obtain the facts.  Here, Dr. Smigaj has shown that PQAC's failure to 

obtain timely written reports from Dr. Tomlinson, or to at least interview him by 

conference call, and PQAC's failure to interview hospital physicians and nurses, and the 

chair of the hospital's ob/gyn department, constituted an unreasonable investigation under 

the circumstances. 

       Element 3

       The third element of HCQIA inquires whether the physician receive adequate 

notice and procedures "or after such other procedures as are fair to the physician under 

the circumstances." 42 U.S.C. § 11112(a)(3).  This element can be met by fulfilling this 

requirement or by demonstrating one of the two exceptions contained in 42 U.S.C. 

§ 11112(c).  Memorial argues that it meets both the investigation exception and the 

imminent danger exception. We address the exceptions first.  Memorial has the burden 

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No. 29415-3-III
Smigaj v. Yakima Valley Mem'l Hosp.

of proof.  

       Investigation Exception. The investigation exception contained in 42 U.S.C. 

§ 11112(c)(1)(B) applies to suspensions of 14 days or less if  "an investigation is being 

conducted to determine the need for a professional review." Dr. Smigaj's suspension was 

11 days.

       However, while PQAC completed the investigation of Dr. Smigaj on September 3, 

2008, there are no facts indicating that the investigation continued after PQAC made its 

recommendation.  Memorial fails to show that the investigation exception applies. 

       Imminent Danger Exception.  Memorial also contends that the imminent danger 

exception applies.  This exception permits the immediate suspension of clinical privileges 

where the failure to take such action "may result in an imminent danger to the health of 

any individual." 42 U.S.C. § 11112(c)(2).  A suspension based on imminent danger does 

not require that imminent danger must exist, but, rather, that danger may exist if the 

suspension is not imposed.  Sugarbaker v. SSM Health Care, 190 F.3d 905, 917 (8th Cir. 

1999) (rejecting claim that imminent danger did not exist because physician had no 

patients in the hospital when the suspension was imposed) (quoting Fobbs v. Holy Cross 

Health Sys. Corp., 29 F.3d 1439, 1443 (9th Cir. 1994), overruled in part on other 

grounds by Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001)).

                                               26 

No. 29415-3-III
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       At its September 3, 2008, meeting, PQAC approved a motion stating that Dr. 

Smigaj's continued practice constituted "unacceptable risk" to patients and 

recommending a precautionary suspension.  CP at 656.  

       Dr. Smigaj's precautionary suspension was based primarily on three cases. While 

it is true that Dr. Tomlinson found nothing wrong with two of these cases, Dr. Tomlinson 

did find that Dr. Smigaj provided substandard care in one respect in the JA case.  This 

first case dealt with a patient who was seen in February 2008.  The JA case was presented 

at the May 30 PQAC meeting.  The WC case, which resulted in infant death, was 

presented at PQAC's August 15 meeting.  The LH case involved a patient who was seen 

in June.  This case was also presented at the August 15 meeting.  

       A number of facts preclude a determination of imminent danger.  PQAC's 

recommendation was based on its conclusion that failure to act may result in 

unacceptable risk or imminent danger to patients.  But PQAC did not act in a manner that 

suggested an imminent danger.  LH was seen in June; the case was presented to PQAC on 

August 15, but Ms. Anyan did not call Dr. Tomlinson or send him records until 

September 2; PQAC recommended Dr. Smigaj's suspension at the September 3 meeting.  

Similarly, the records on the WC case were sent to Dr. Tomlinson on August 8, the case 

was presented to PQAC on August 15, and the recommendation for the suspension was 

                                               27 

No. 29415-3-III
Smigaj v. Yakima Valley Mem'l Hosp.

made on September 3.  The matter was heard by MEC at its regularly scheduled 

September 16 meeting.  

       Memorial argues that PQAC reasonably believed that the failure to impose a 

precautionary suspension on Dr. Smigaj might result "in an imminent danger to the health 

of any individual." 42 U.S.C. § 11112(c)(2).  But this is not the standard.  We must 

apply an objective standard when considering the imminent danger exception.  Memorial 

has not met its burden to show that the imminent danger exception applies.  

       Fair Process. The failure to provide a physician with adequate notice and fair 

procedures precludes immunity under 42 U.S.C. § 11112(a)(3).  Under this provision, "a 

professional review action must 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."  Id. (emphasis added). Generally, "a 

physician is entitled to proper notice of a proposed peer review action and a fair hearing 

in which he or she can challenge the proposed action."  Perry, 155 Wn. App. at 640.  

However, informal review procedures may be adequate to satisfy HCQIA.  See Morgan, 

101 Wn App. at 772 n.4; Cowell, 153 Wn. App. at 936. 

       The requirements for adequate notice and hearing are set forth in 42 U.S.C. 

§ 11112(b).  With this provision, HCQIA establishes a "safe harbor" provision that 

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No. 29415-3-III
Smigaj v. Yakima Valley Mem'l Hosp.

contains a list of procedural guidelines which, if followed, will satisfy the adequate notice 

and procedures requirement of 42 U.S.C. § 11112(a)(3).  Chalal v. Nw. Med. Ctr., Inc., 

147 F. Supp. 2d 1160, 1173-74 (N.D. Ala. 2000).  

       A professional review body need not meet all of the safe harbor requirements 

contained in 42 U.S.C. § 11112(a)(3).  42 U.S.C. § 11112(b).  If other procedures are 

followed of a different character than those contained in 42 U.S.C. § 11112(b), the test of 

adequate notice and hearing procedures may be proved under the circumstances.  Chalal, 

147 F. Supp. 2d at 1174.  Dr. Smigaj was not given a hearing; thus, this court must 

consider whether the procedures used were fair to Dr. Smigaj under the circumstances.

       As with the other elements considered here, Dr. Smigaj must show that a 

reasonable jury could conclude by a preponderance of the evidence that she failed to 

receive adequate notice and hearing under the circumstances.  Cowell, 153 Wn. App. at 

926.

       The informal procedure process used here failed to provide Dr. Smigaj with 

adequate hearing and notice.  Memorial failed to inform Dr. Smigaj that PQAC was 

considering or recommending the suspension of her hospital privileges.  No one informed 

Dr. Smigaj that suspension was being considered until Dr. Padilla called her to tell her 

that her privileges were suspended.  PQAC also failed to give her notice of several 

                                               29 

No. 29415-3-III
Smigaj v. Yakima Valley Mem'l Hosp.

allegations that were being considered by PQAC.  Dr. Smigaj was not present during any 

of the calls with Dr. Tomlinson and, also, she did not receive two of his reports in a 

timely manner.  Dr. Smigaj was not invited to the PQAC meeting and was not present 

when Dr. Padilla signed the letter issuing her suspension.  

       Dr. Padilla wrote a letter to Dr. Smigaj informing her of the suspension.  The letter 

explained that the matter would be considered at MEC's September 16 meeting and that 

she could make a statement, but that she could not bring an attorney, and that she was not 

entitled to hearing rights. 

       Dr. Smigaj also argues that PQAC's process was not fair because her 

competitors -- Dr. Rowles, Dr. Olden, and Dr. Nathaniel Davenport -- served on PQAC as 

decision makers.  Under 42 U.S.C. § 11112(b)(3)(A)(i), (ii), and (iii), any hearing must 

be conducted by an arbitrator, a hearing officer or panel of individuals, who are not in 

direct competition with the physician.  Because the process made available to Dr. Smigaj 

did not include neutral decisionmakers, it was not fair under the circumstances.  HCQIA 

anticipates a hearing officer or panel "not in direct economic competition with the 

physician involved." 42 U.S.C. § 11112(b)(3)(A)(ii), (iii).

       Because Memorial failed to give Dr. Smigaj proper notice of the proposed peer 

review action, failed to allow her to attend the September 3 meeting, and failed to provide 

                                               30 

No. 29415-3-III
Smigaj v. Yakima Valley Mem'l Hosp.

her with procedural safeguards, Memorial failed to provide fair process under 

42 U.S.C. § 11112(a)(3) and 42 U.S.C. § 11112(b). 

       Dr. Smigaj has established, by a preponderance of the evidence, that PQAC's 

process was unfair under the circumstances.

       Element 4

       The fourth element requires Dr. Smigaj to rebut the presumption that Memorial

acted with the reasonable belief that the suspension was warranted based on the facts that 

were known.  The evidence here supports the presumption that Memorial reasonably 

believed that the suspension was warranted.  

       Attorney Fees and Costs.  RCW 7.71.030(3) provides for the award of fees to a 

prevailing party.  RCW 7.71.020 adopted 42 U.S.C. § 11113 that provides for an award 

of attorney fees and costs to a substantially prevailing defendant covered by HCQIA who 

met the elements of 42 U.S.C. § 11112(a) and where the claim or the claimant's conduct 

during the litigation of the claim was frivolous, unreasonable, without foundation, or in 

bad faith. We review an award of attorney fees for an abuse of discretion.  Cowell, 153 

Wn. App. at 942.

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No. 29415-3-III
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       The trial court awarded attorney fees to Memorial in the amount of $534,415.  

The trial court awarded attorney fees under RCW 7.71.030(3) and, alternatively, under 

42 U.S.C. § 11113.  In its findings, conclusions and judgment on attorney fees, the court 

concluded that all of Dr. Smigaj's claims were unfounded and unreasonable.  We reverse 

the award of attorney fees to Memorial.

       Conclusion.  We conclude that RCW 7.71.020, the HCQIA, applies here because 

the professional review action related directly to Dr. Smigaj's competence and conduct.

Dr. Smigaj has established that Memorial is not entitled to immunity under HCQIA.  Dr. 

Smigaj has rebutted the presumptions granted under element 2, reasonable investigation, 

and element 3, fair process.  The court did not err by dismissing her defamation claim 

relating to the Group Health letter, but the court erred in dismissing her remaining claims. 

The court erred by awarding attorney fees to Memorial.

       We reverse the grant of summary judgment in favor of Memorial, reverse 

dismissal of all claims except the defamation claim relating to Group Health, and reverse 

the award of attorney fees.  We remand for trial.  We deny attorney fees on appeal.

                                                    _________________________________
                                                    Kulik, C.J.

WE CONCUR:

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No. 29415-3-III
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______________________________________
Korsmo, J.

______________________________________
Siddoway, J.

                                               33