IN THE SUPREME COURT OF OHIO

Transcription

1 ORIGINAL IN THE SUPREME COURT OF OHIO GEORGE A. GEORGOPOULOS, M.D., : CASE NO vs. Plaintiff-Appellant, HUMILITY OF MARY HEALTH PARTNERS, ET AL., Defendants-Appellees. On Appeal from the Trumbull County Court of Appeals Eleventh Appellate District Court of Appeals Case No TR Trial Court Case No CV 3043 MEMORANDUM IN OPPOSITION TO JURISDICTION OF DEFENDANTS-APPELLEES, HUMILITY OF MARY HEALTH PARTNERS, INC. DB/A/ ST. ELIZABETH HEATH CENTER, CLIFFORD WALDMAN, M.D., AND NICHOLAS CAVARROCHI, M.D. JOSEPH J. FELTES (# ) GEORGE A. GEORGOPOULOS, M.D. JUSTIN S. GREENFELDER (# ) 5742 Logan Arm Drive Buckingham, Doolittle & Burroughs, LLP Girard, OH P.O. Box Tel. (330) Canton, OH Tel. (330) Fax (330) Jfeltest^bdblaw.com t reenfelder@.bdblaw com Attorneys for Defendants-Appellees Plaintiff-Appellant, Pro Se ^^IE D AUG CLERK OF COURT SUPREME COURT OF OHiO Lm Ai1G29 z011 CLERK OF COUR SUPREME COURT OF OHIO

2 TABLE OF CONTENTS EXPLANATION OF WHY THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST OR THAT INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION... STATEMENT OF THE CASE...3 STATEMENT OF THE FACTS...4 ARGUMENT IN OPPOSITION TO PROPOSITIONS OF LAW...11 [APPELLANT DOES NOT PROPOSE ANY SPECIFIC PROPOSITIONS OF LAW] CONCLU SION...15 PROOF OF SERVICE

3 EXPLANATION OF WHY THIS IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST OR THAT INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION This case is about a hospital's conducting peer review in furtherance of quality care and a single physician's decision to quit his practice and close his office rather than agree to be monitored for six cases. It is essential that hospitals conduct effective peer review in order to assure that physicians on their Medical Staffs remain currently competent to perform procedures without subjecting patients to a risk of harm. Concern about a physician's competence does not have to rise to the level of malpractice before peer review can and should be taken. Dr. Georgopoulos urges this Court to accept his case because he believes he has been treated unfairly and the community has been deprived of his "excellent services." He believes he has been falsely persecuted, and that his case "deserves to set a precedent and become a beacon for posterity." While these issues may be of great personal importance for Dr. Georgopoulos, they do not rise to the level of great general or public interest for this Court to entertain his appeal. This case is extremely fact-specific and, thus, it would be difficult to adopt a broad proposition of law for Ohio courts to apply in reviewing hospital peer review actions. Moreover, Dr. Georgopoulos fails to set forth a proposition of law that this Court could adopt even if it were to accept the appeal. Based on the arguments in Dr. Georgopoulos' memorandum in support of jurisdiction, Appellees cannot even hazard a guess as to what the proposition of law could be. His arguments are personal in nature and most relate to his practice of medicine. Once again, these purely personal complaints about how a hospital conducts peer review are not suffzcientfo`r tin`s1,oni''-to reviewihisrnatter. Finally, this case is largely about the interpretation and application of a federal statute. The trial court concluded that Appellees were entitled to immunity under the Health Care Quality 1

4 Improvement Act of 1986, 42 U.S.C et seq. ("HCQIA"). The Court of Appeals affirmed this ruling after a de novo review of the record. HCQIA creates a rebuttable presumption of immunity under 11112(a), forcing a plaintiff to prove by a preponderance of evidence that the defendant hospital and peer review participants did not take peer review action: (1) in the reasonable belief that it was in furtherance of quality health care; (2) after a reasonable effort to obtain facts; (3) after adequate notice and hearing procedures were afforded to the physician involved in peer review; and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable efforts to obtain facts. Dr. Georgopoulos could not overcome that presumption. He was represented by competent counsel at the trial court level who had the opportunity to conduct discovery and offer evidence to the court on summary judgment. The trial court concluded, and the court of appeals agreed, that the evidence submitted was not sufficient to meet Dr. Georgopoulos' burden. Dr. Georgopoulos now argues that these courts were wrong because his medical treatment of certain patients was justified. However, he offers no legitimate argument to challenge Appellees' objective decision to initiate peer review proceedings. He also offers no cogent reason why he adamantly refused to be monitored. His deposition testimony on this issue is particularly telling: I was baffled that decision was a board certified surgeon to supervise me. I mean, like I am not a board certified? Why do I need a board certified surgeon to supervise me?...i am probably the worth of four board certified cardiac surgeons. I mean, I cannot make it more striking. 1 Rather than agree to peer review monitoring of only six cases, which could have been completed expeditiously and if there were no problems found would have allowed Dr. Georgopoulos to resume his practice, Dr. Georgopoulos, instead, quit practicing medicine altogether. That was his sole decision. Nobody told him he had to quit. ' Georgopoulos deposition I (July 26, 2007), p

5 This case is about one physician and the peer review process initiated by a hospital in furtherance of quality healthcare. It involves no substantial constitutional question, nor does it raise any issues of great general or public importance. Dr. Georgopoulos is simply disappointed with the outcome and frustrated with the judicial system. The unique facts of this case, including the application and interpretation of a federal statute as it relates to peer review proceedings involving a single physician, present no basis for this Court to accept review. STATEMENT OF THE CASE Dr. Georgopoulos originally filed a Complaint in the U.S. District Court for the Northern District of Ohio, Eastern Division, on June 7, 2006, alleging that Defendants-Appellees violated Section 1 of the Sherman Antitrust Act and Section 4 of the Clayton Act, along with several pendant state claims. The case was assigned to Judge David Dowd who declined to entertain dispositive motions. On November 2, 2007 (one week before trial), the parties entered into a Stipulation of Dismissal under Fed.R.Civ.P. 41(a)(1)(A)(ii), in which Appellant dismissed all Federal and Ohio antitrust claims with prejudice, but dismissed without prejudice the remaining state claims. On October 30, 2008, Appellant, who obtained new and different counsel, re-filed a Complaint in the Trumbull County Common Pleas Court alleging claims for breach of contract, unfair competition, tortious interference with business relations, infliction of emotional distress, defamation, request for declaratory relief on breach of contractual due process, and a request for declaratory relief on the issue of HCQIA inununity. App- ellees filed-a Mohoii for Summary juagmerfi rrrr ivlarch 1-8= nr, -Georgo}aou os filed a responsive brief on April 19, Appellees filed their Reply Brief on Apri128,

6 On May 3, 2010, the Trial Court issued an Order granting Appellees' Summary Judgment Motion and dismissing the case. Dr. Georgopoulos, who parted ways with his second counsel who represented him at the trial court level, filed an appeal pro se. The Eleventh District Court of Appeals issued its opinion on June 27, 2011, affirming the judgment of the trial court. STATEMENT OF FACTS As presented in the record of the Trial Court? This case arises out of a professional peer review action at St. Elizabeth Health Center in Youngstown, Ohio, that occurred in On May 7, 2004, Dr. Georgopoulos, a cardiovascular surgeon who was not employed by St. Elizabeth, performed a 3-vessel coronary artery bypass graft ("bypass" or "CABG") surgery on a patient that lasted 22 hours and 45 minutes - more than six times the average operative time. Two months earlier, Dr. Georgopoulos performed bypass surgery that resulted in extraordinary blood loss. These two cases, which raised concern about the quality of care Dr. Georgopoulos was providing to patients, were brought to the attention of Defendant-Appellee, Clifford Waldman, M.D., St. Elizabeth's Chief Medical Officer and non-defendant, Mounir Awad, M.D., a general surgeon who chaired the Surgery Department of which Appellant was a member. Dr. Awad consulted with Defendant-Appellee, Nicholas Cavarocchi, M.D., who was the Medical Director of Cardiac Surgery. Dr. Cavarocchi stated that Dr. Georgopoulos' operative time and blood loss appeared unacceptable. Dr. Cavarocchi was concerned about patient safety.3 With this information, Dr. Awad initiated a peer review invesfigahon by fhe Dep rtmentiutf SurgeD',wfxch he dete'-^!n''ne 'uasa 2 The footnoted citations in Appellees' Brief are to exhibits to Appellees' Memorandum in Support of their Motion for Summary Judgment, which was before the Trial Court. 3 Awad Affidavit, 14; Cavarocchi deposition, p

7 reasonable effort to obtain facts 4 Dr. Awad met with Appellant on May 20, Appellant was given an opportunity to discuss the two cases under review.5 Dr. Awad determined that further investigation was warranted, because the issues identified raised concern about patient safety.6 Dr. Awad asked Dr. Georgopoulos to refrain voluntarily from performing CABG surgery during the investigation as a precautionary measure to protect patient safety.7 Dr. Georgopoulos voluntarily agreed to refrain from performing bypass surgery.8 None of Dr. Georgopoulos' other clinical privileges were limited.9 St. Elizabeth, in a reasonable effort to obtain pertinent information related to quality and patient safety, believed that it would be fair to have these two cases reviewed by an outside, independent expert.10 They offered Dr. Georgopoulos the opportunity to suggest an outside reviewer acceptable to him. Dr. Georgopoulos declined the invitation. Dr. Waldman engaged Benjamin Sun, M.D., a cardiovascular surgeon at Ohio State University Medical Center, to perform an independent and objective review. In his first report dated June 8, 2004, Dr. Sun expressed concern about the length of Appellant's operative time and extensive blood loss.' I Given Dr. Sun's initial report, Dr. Awad believed it was necessary, appropriate and fair to continue the Surgery Department's peer review investigation by sending Dr. Sun eight additional Awad Affidavit, 15. Awad Affidavit, Awad Affidavit, 19. Awad Affidavit, 25. $ Awad Affidavit, 28, 9 Awad Affidavit, 27. lo Awad Affidavit, " Sun Affidavit, Exhibit 1 to 5. 5

8 cases to review in order to reasonably obtain additional facts, which he believed was in furtherance of quality patient care.12 Dr. Sun's second report on June 29, 2004, confirmed the findings in the initial report that Dr. Georgopoulos' operative time and blood loss were considerably outside the norm.13 Dr. Sun recommended that Dr. Georgopoulos be observed to determine whether a problem with his decision-making and surgical technique existed and, if so, to see what positive steps could be taken to fix it14 On July 1, 2004, Dr. Awad and Dr. Waldman presented Dr. Sun's reports to Dr. Georgopoulos, who disagreed with Dr. Sun's findings and recommendations.15 Dr. Georgopoulos asked whether he could have these same 10 cases looked at by an outside reviewer that he chose. Though not obligated to honor Dr. Georgopoulos' request, Dr. Waldman and Dr. Awad agreed to do so in the spirit of fairness.16 Dr. Georgopoulos produced a letter, dated July 30, 2004, from Dr. Marc Gillinov of the Cleveland Clinic, who opined that cardiac surgery should be judged only by outcomes and that Dr. Georgopoulos' outcomes were acceptable." Significantly, Dr. Gillinov's letter did not address potential issues with Dr. Georgopoulos' decision-making or surgical technique, which Dr. Sun raised. Upon receipt of this letter, Dr. Georgopoulos demanded that he be able to resume performing CABGs. 1$ -- - Awad Affidavit, Sun Affidavit, Exhibit 2 to Sun Affidavit, Exhibit 2 to Awad Affidavit, Awad Affidavit, 42. " Awad Affidavit, Awad Affidavit, 44. 6

9 Because of Dr. Georgopoulos' unwillingness to refrain from performing CABGs, and based on the information they had, including reports from two reviewers (one concluding that there may be a problem and one who believed his outcomes were acceptable), Dr. Awad and Dr. Waldman believed they needed to transition the peer review investigation from the Department of Surgery to the Medical Executive Committee.1y The Medical Executive Committee considered Appellant's peer review matter when it met at its next regularly scheduled meeting on August 10, The Medical Executive Committee voted unanimously (with one abstention) to continue peer review by appointing a formal Investigating Committee to conduct a thorough investigation and deliver a report and recommendation.20 At no time did the Medical Executive Committee seek to revoke Dr. Georgopoulos' Medical Staff inembership or clinical privileges, including his privileges to perform CABGs. Dr. Eugene Potesta, the President of the Medical Staff, appointed a three-person Investigating Committee. He originally appointed John Jakubek, M.D. (an anesthesiologist), Rashid Abdu, M.D. (a retired surgeon) and Ronald Mikolich, M.D. (chief of cardiology). Appellant objected to Dr. Mikolich's participation. Dr. Potesta, though not obligated to replace Dr. Mikolich, did so as a courtesy to Appellant. Dr. Potesta named Benjamin Hayek, M.D. (an internist), as the third member of the Investigating Committee.21 The Investigating Committee met 13 times between August 19 and September 23, It interviewed 10 physicians, including Dr. Georgopoulos, Dr. Sun, and Dr. Gillinov. While Dr. -- Sun and Dr. Gillinov did not see eye-to-eye regar^ing the importance of operative Trme ana 19 Awad Affidavit, Potesta Affidavit, Potesta Affidavit, 16. ZZ Jakubek Affidavit, 17. 7

10 blood loss, they did agree, when interviewed, that Dr. Georgopoulos' technique of performing extended arteriotomies and double-suturing were not typical, were not usually necessary, and may prolong operative time, which could result in increased blood loss.z3 The Investigating Committee also interviewed 6 nurses and perfusionsts (the technicians who run the heart-lung bypass machine). It reviewed documents, including the reports written by Dr. Sun and Dr. Gillinov (both based on a retrospective review of medical records), as well as letters written by two referring cardiologists who supported Dr. Georgopoulos. It read articles related to cardiac bypass surgery.24 On September 23, 2004, the Investigating Committee gave the Medical Executive Committee its six-page report. Based on its interviews and review of documents, the Investigating Committee unanimously recommended that a mutually agreeable board-certified, actively practicing cardiothoracic surgeon directly observe Dr. Georgopoulos' technique in surgery for a minimum of 6 CABGs.25 The Investigating Committee considered monitoring to be the most appropriate way and least restrictive way to determine whether or not there was a problem with Dr. Georgopoulos' surgical technique and to assure quality of care.26 The Medical Executive Committee unanimously voted to accept the Investigating Committee's recommendation that Dr. Georgopoulos be observed by a board-certified actively practicing cardiothoracic surgeon for his next 6 bypass cases 27 The Medical Executive Committee took 23 Jakubek Affidavit, Jakubek Affidavit, ZS Jakubek Affidavit, Jakubek Affidavit Potesta Affidavit, 21. 8

11 this action in the reasonable belief that it was warranted by the facts obtained and that it was in furtherance of quality health care and patient safety.28 St. Elizabeth secured the services of a board-certified actively practicing cardiothoracic surgeon, who was willing to observe Dr. Georgopoulos. The Hospital agreed to pay the independent observer for his time and to remain and be available at the Hospital, if necessary.29 Dr. Georgopoulos adamantly refused to be monitored or observed as part of peer review.30 Rather than agree to peer review monitoring of only six cases, which could have been completed expeditiously and if there were no problems found would have allowed Dr. Georgopoulos to resume practice, Dr. Georgopoulos, instead, quit practicing altogether. Dr. Georgopoulos closed his medical office in October, He dismissed his office assistant.3z He allowed his medical malpractice insurance to lapse and his medical staff privileges to expire.33 He has not practiced medicine in any capacity since May, Dr. Georgopoulos quit practicing medicine even before he requested a Medical Staff Hearing to appeal the peer review action to monitor hnn. Dr. Georgopoulos admitted that St. Elizabeth gave him proper notice of the Hearing and a description of the issues that would be heard.35 He was given witness lists, and documents were exchanged. The Hearing was conducted before a panel of three physicians, none of whom were in economic competition with Dr. Georgopoulos.36 An independent attorney from Cleveland was 28 Potesta Affidavit, Jakubek Affidavit, 27; Potesta Affidavit, Georgopoulos deposition II (June 16,_109j, p: b Georgopoulos deposition I (July 26, 2007), p Georgopoulos deposition I (July 26, 2007), p Georgopoulos deposition I (July 26, 2007), p Georgopoulos deposition II (June 16, 2009), p Georgopoulos deposition II (June 16, 2009), p Georgopoulos deposition II (June 16, 2009), pp

12 appointed as Hearing Officer to preside over the Hearing, which was conducted in five sessions totaling approximately 30 hours.37 Dr. Georgopoulos was represented by legal counsel at the Hearing.38 His counsel had the opportunity to call witnesses.39 Dr. Georgopoulos' attorney had an opportunity to cross-examine St. Elizabeth's witnesses, including Dr. Waldman and Dr. Sun.40 Dr. Georgopoulos testified why he objected to being monitored.41 His counsel introduced documentary evidence and submitted written statements at the end.4z The Hearing Panel issued its opinion that "the MEC did act in good faith and made appropriate recommendations based on the information that we understand to have been presented to the MEC." The Panel went on to say that the Medical Executive Committee's recommendation may not have been warranted based on the additional evidence presented at the Hearing.43 The Hearing Panel's report went back to the Medical Executive Committee, which under the Medical Staff Bylaws, was not bound by the Hearing Panel's findings. It had the option of accepting, rejecting or modifying the Hearing Panel's report. Dr. Potesta distributed copies of the Hearing Panel's report to each member of Medical Executive Conunittee. Dr. Potesta also gave each member the opportunity to review the Hearing Transcript and exhibits 44 On September 7, 2005, the Medical Executive Committee, after careful review and consideration, disagreed in part with the Hearing Panel. The Medical Executive Committee, 37 Potesta Affidavit, 25; Georgopoulos deposition II (June 16, 2009), p. 70. Georgopoulos deposition II une 16, 09j, p. 6`9: 39 Georgopoulos deposition II (June 16, 2009), p Georgopoulos deposition II (June 16, 2009), p Georgopoulos deposition II (June 16, 2009), p Georgopoulos deposition II (June 16, 2009), p Exhibit 10 to Potesta Affidavit, Potesta Affidavit,

13 acknowledging its good faith, believed it did have sufficient information to support its recommendation to monitor Dr. Georgopoulos in furtherance of quality care and patient safety. It unanimously voted to reaffirm its original September 23, 2004 recommendation to monitor Dr. Georgopoulos out of an interest for patient care and to determine whether issues existed with his decision-making and surgical technique 45 Dr. Potesta believes that action by the Medical Executive Committee represented its reasonable belief that the monitoring was supported by the facts and that it furthered health care and patient safety.46 The Board of Directors met on November 1, 2005 and unanimously voted to uphold the Medical Executive Committee's recommendation to have Dr. Georgopoulos observed for six cases in the interest of patient quality of care. ARGUMENT IN OPPOSITION TO PROPOSITIONS OF LAW Dr. Georgopoulos does not propose any propositions of law. However, he appears to challenge the rulings of the lower courts which granted summary judgment based on the immunity afforded by HCQIA for conducting peer review. Although this federal statute has been applied and interpreted on a few occasions by Ohio courts, it would serve little purpose for this Court to adopt a proposition of law for the future treatment of this statute. But even if this Court were so inclined, this is not the case to make such a pronouncement given its highly factspecific nature. HCQIA creates a rebuttable presumption of immunity under 42 U.S.C (a), forcing a plaintiff to prove by a preponderance of evidence that the defendant hospital and peer review participants did not take peer review action: (1)in-the reasonabie'melief thatii-was-rn furtherance of quality healthcare; (2) after a reasonable effort to obtain facts; (3) after adequate 4 5 Potesta Affidavit, Potesta Affidavit,

14 notice and hearing procedures were afforded to the physician involved in peer review; and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts. Unlike the usual standard for sumrnary judgment, when HCQIA immunity is being challenged, the plaintiffbears the burden of showing by a preponderance of evidence that those engaged in peer review did not satisfy the statutory requirements. See, e.g., Moore v. Rubin, 11tn Dist. No T-0150, 2004-Ohio-5013, 21. It is not just a question of weight, but also one regarding the quality of evidence that a plaintiff must produce. Courts uniformly hold that evidence alleging that peer review defendants acted in "bad faith," or that the doctor under peer review met the standard of care, or even evidence that the peer review action taken was wrong is irrelevant and insufficient to rebut the presumption. See Reyes v. Wilson Memorial Hospital (S.D. Ohio 1998), 102 F.Supp.2d 798. Instead, those participating in peer review must be reviewed on an objective basis, i.e., whether, considering the totality of circumstances, there existed an objectively reasonable basis for professional review activity and actions. This "reasonable belief' standard is met if the peer reviewers, with the information available to them at the time of the professional review action, would reasonably have concluded that their action would restrict incompetent behavior or protect patients. Poliner v. Texas Health Systems (C.A.5, 2008), 537 F.3d 368, 378, citing Meyers v. Columbia/HCA Healthcare Corp. (C.A.6, 2003), 341 F.3d 461, 468. The "professional review activity" (defined by 42 U.S.C (10)) at St. Elizabeth ^^^ began with the identification ot two oufcier cases ihatz;aii^a atierrticmtv-'.ong^perati:^`ti-==. v a^a.-.. significant blood loss. It continued with the investigation by the Department of Surgery, which engaged an independent expert reviewer, Dr. Sun at Ohio State, to review 10 of Dr. 12

15 Georgopoulos' open heart cases. Dr. Sun expressed reasonable concern about Dr. Georgopoulos' operative time, blood loss and suggested there may be possible problems with his surgical technique and decision-making, which affect patient care and safety. Following the Surgery Department's initial investigation, the professional review activity was continued by the Medical Executive Committee, which appointed an Investigating Committee of disinterested physicians who interviewed physicians, nurses and staff. The Investigating Committee recommended that Dr. Georgopoulos be monitored and directly observed by an independent cardiothoracic surgeon who would actually be in the operating room for 6 open heart cases. The Medical Executive Committee accepted that recommendation, and began, through the Hospital, to make arrangements to retain a qualified, independent monitor, at the Hospital's expense. Dr. Georgopoulos refused to be monitored. He, instead, quit practicing medicine. It is incontrovertible that the two bypass surgery cases, which resulted in the initiation of the peer review investigation, raised quality of care concerns. Dr. Georgopoulos, himself, can offer nothing more than expressing subjective disagreement with, and ascribing ill motive to, those who were involved in the peer review process, obdurately maintaining that he does not need to be monitored. These subjective, solipsistic opinions have no evidentiary value whatsoever toward overcoming the presumption that those participating in peer review acted with the reasonable belief that they were furthering quality care. The above facts, which were known to the peer reviewers at the time the action was taken, objectively led them to contudethafl5r: Georgopoulos shouia bemronitor for -casts. Appellant's suggestion that St. Elizabeth could ignore these facts and sweep them under the rug 13

16 is inappropriate and dangerous and would not have furthered quality medical care. St. Elizabeth would have opened itself up to a claim for negligent credentialing if it did nothing. Dr. Georgopoulos also fails in his attempt to argue that a substantial constitutional question exists. Although he claims that his due process rights were somehow violated, it was uncontroverted before the trial court that Dr. Georgopoulos was afforded all of the procedural rights in section 11112(b) of HCQIA. The Court of Appeals agreed and rejected Dr. Georgopoulos' arguments that he was denied the right to call certain witnesses or that he was deprived of a hearing before physicians who were not in economic competition with him." Recently, the U.S. Court of Appeals for the Fifth Circuit in Poliner restated the policy underlying HCQIA immunity and the reluctance by the judiciary to disturb decisions made by hospital peer review committees and governing boards, which are responsible for credentialing decisions and quality standards: To allow an attack later upon the ultimate "truth" of judgments made by peer reviewers supported by objective evidence would drain all meaning from the statute. The congressional grant of immunity accepts that few physicians would be willing to serve on peer review committee under such a threat; as our sister circuit explains, "the intent of [the HCQIAI was not to disturb, but to reinforce, the preexisting reluctance of courts to substitute their judgment on the merits for that of health care professionals and the governing bodies of hospitals in an area within their expertise." At the least, it is not our role to re-weigh this judgment and balancing of interests by Congress. 537 F.3d at The Poliner decision is consistent with the lower courts' decisions and other Ohio cases interpreting HCQIA. There is no conflict among Ohio courts that have applied HCQIA, nor is there any great general or public interest that would be furthered by reviewing this case. Dr. 47 See Court of Appeals Opinion, at Khan v. Suburban Community 48 This position echoes that of the Ohio Supreme Court, which in Hospital, held that "a court should not substitute its judgment for that of the hospital trustees' judgmenf' on matters of credentialing and peer review. 45 Ohio St. 2d 39 (1976). 14

17 Georgopoulos is simply upset with how the peer review process turned out for him. His personal and subjective disagreement is not enough to warrant review by this Court. CONCLUSION It is essential for hospitals to be able to conduct effective peer review in order to assure that physicians on their Medical Staffs remain currently competent to perform procedures without subjecting patients to a risk of harm through substandard treatment. Nowhere is that more important than when heart surgery is involved, especially when that surgery lasts nearly a day rather than a few hours. Dr. Georgopoulos' subjective disagreement with the peer review process in his case is not enough to overcome the presumption of immunity under HCQIA and does not raise an issue of great general or public interest to warrant review by this Court. Dr. Georgopoulos fails to present any issues of law for this Court to review or that would justify impinging upon a hospital's ability to conduct effective peer review. Accordingly, Appellees respectfully request that this Court refuse jurisdiction over this matter. Respectfully submitted, BUCKINGHAM, DOOLITTLE & BURROUGHS, LLP Jo "pos J. Feltes (# ) stin S. Greenfelder (# ) 4518 Fulton Drive N.W. Canton, Ohio Tel. (330) Fax (330) ifeltes@.bdblaw.com JGreenfelderkbdblaw.com Counsel for Defendants-Appellees 15

18 PROOF OF SERVICE A copy of this Memorandum in Opposition to Jurisdiction has been sent by regular U.S. 'f1.^ mail on this I r" day of August, 2011 to the following: George A. Georgopoulos, M.D Logan Ann Drive Girard, OH Plaintiff-Appellant, Pro Se act2: vl» /^ oseph J. Feltes # Justin S. Greenfelder # Counsel for Defendants-Appellees 16