The Herald, Sharon, Pa.

Local News

June 8, 2012

Judge nixes UPMC ban on doctor

LAKEVIEW AREA — A local judge granted a doctor an injunction, preventing UPMC Horizon from suspending him for an alleged policy violation, but left open the possibility that he could be suspended after an appeals process.

The judge allowed the suspension of a member of the doctor’s staff, determining he has never had clinical privileges and is not subject to the same appeals process the doctor is.

UPMC suspended Dr. John P. Scullin III and Lou Christiansen, Scullin’s personal non-certified surgical technician, for two weeks for allegedly violating the hospital’s time-out policy before an operation Dec. 13 at Horizon’s Greenville hospital.

The policy applies to patients who undergo operative and invasive procedures to ensure that the correct patient will be operated on, and the correct procedure will be performed.

Scullin was notified of an alleged violation of the policy the day of the operation, and met with hospital officials Dec. 22.

In Jan. 12 letter, officials informed Scullin that the medical executive committee had determined he had failed to participate in the time-out process before beginning the operation, and that the failure was deemed a “serious lapse of professional conduct.” The committee suspended Scullin’s clinical privileges for two weeks starting Feb. 8.

Scullin issued a letter Jan. 17 to Chief of Staff Dr. Michael K. Matthews saying the decision was “especially disappointing” as Matthews and other committee members had indicated following the Dec. 22 meeting that “there had been no significant violation of procedure.”

Scullin continued: “At the time of the start of the procedure in question I did perform the time out stating which extremity was to be done and what was to be done and also referred to the x-rays on the view box again noting which side was to be done.”

“(I)f there were any shortcoming it was that when I performed the time out that all those personnel in the operating room may not have been fully aware of the time out being performed,” Scullin said.

UPMC does not have an appeals process for suspensions less than 30 days, a violation of state law, Scullin said.

The onset of the suspension was postponed to Feb. 27, which apparently gave Scullin and Christiansen time to file their lawsuit, which they did Feb. 24 in Mercer County Common Pleas Court.

Mercer County Common Pleas Court Judge Robert G. Yeatts granted an emergency injunction preventing the suspension from going into effect until the suit was resolved.

Following the filing of briefs and an oral argument, Yeatts filed an opinion June 1.

UPMC argued that the court does not have jurisdiction over a private staffing matter, but Yeatts disagreed, citing case law.

UPMC did not offer Scullin a chance to appeal the suspension, and argued that it did not have to because the suspension was for less than 30 days. Yeatts said state law requires an appeals process for a practitioner who is suspended, no matter the length.

UPMC also argued that Scullin agreed to the policy when he signed a contract with UPMC.

“By this logic, a private landowner and a natural gas company could enter into a lease in which they agree that the regulations promulgated by Pennsylvania’s Department of Environmental Protection would not apply to any wells drilled on the landowners’ land,” Yeatts said. “Private parties may not pick and choose which regulations will apply to them or their relationship.”

UPMC has two options: give Scullin an appeals process or seek an opinion from the health department as to whether its policy is OK.

UPMC could still suspend Scullin if, after a hearing, it continues to believe a suspension is appropriate.

Yeatts said he found compelling an argument that an appellate process for any suspension, no matter how short, would be “unreasonably burdensome and could compromise patient safety.”

“However, UPMC’s remedy lies not with this court, but with the Department of Health,” Yeatts said.

Yeatts said his order will not take affect earlier than July 1 in order to allow UPMC to ask for an opinion from the health department as to whether its policy complies with state law. If UPMC follows this path, the order will continue to be stayed until the health department issues a ruling.

Christiansen’s suspension will stand because he is not a licensed practitioner.

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