Eric R. Shibley, Md, Appellant / X-res. V. King County Public Hospital District, Respondent / X-app.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ERIC R. SHIBLEY, M.D.,
Appellant/Cross Respondent,
v.
KING COUNTY PUBLIC HOSPITAL
DISTRICT NO. 4, d/b/a SNOQUALMIE
VALLEY HOSPITAL, a municipal
corporation; KIMBERLY WITKOP, M.D.,
individually; the marital community of
KIMBERLY WITKOP, M.D. and LESTER
C. WITKOP; and RICHARD J. PISANI,
M.D.,
Respondents/Cross Appellants.
No. 72855-5-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: May 23, 2016
Appelwick, J. — Dr. Shibley sued Snoqualmie Valley Hospital for damages
after 	SVH 	terminated 	his 	employment 	and 	clinical 	privileges due 	to 	his
unprofessional conduct. 	The trial court granted summary judgment in favor of
SVH. 	Dr. Shibley argues that the trial courterred in holding that SVH was entitled
to immunity from suit. 	He argues that the trial court erred in dismissing his
employment and termination related claims. 	SVH argues that the trial court erred
in denying its motion for attorney fees. 	SVH contends that it is also entitled to
attorney fees on appeal. 	We affirm.

No. 72855-5-1/2
FACTS
Dr. 	Eric Shibley was 	employed as a 	hospitalist by King County Public
Hospital District No. 4. 	He worked at Snoqualmie Valley Hospital (SVH) under an
employment agreement that was effective as of September 1, 2010.
On February 8, 2011, patient ST. was transferred to SVH. 	She had just
had surgery and required close medical attention to ensure that her wound did not
become infected. 	Dr. Shibley was the hospitalist on duty at the time. 	He was
responsible for 	performing 	a 	history and 	physical 	examination 	of ST. 	upon
admission. 	But, he 	did 	not examine ST. on 	February 8. 	Dr. Shibley was
scheduled to go off duty the next day and transfer patient care to Dr. Richard
Pisani, the other hospitalist at SVH. 	On February 9, while Dr. Shibley was still on
duty, Dr. Pisani went to see ST. ST. and her husband told Dr. Pisani that he was
the first doctor they had seen since her admission to the hospital. 	When Dr.
Shibley and Dr. Pisani met later that day to transfer patient care, Dr. Pisani noticed
that Dr. Shibley was dictating a history and physical examination for ST.
On 	February 	16, 	2011, 	Dr. 	Shibley 	and 	Dr. 	Pisani 	had 	a 	heated
disagreement about the proper treatment for another patient, R.B. 	During that
discussion, Dr. Pisani asked Dr. Shibley about ST. 	According to Dr. Pisani, Dr.
Shibley admitted that he had not examined ST. 	Later that day, Dr. Shibley spoke
with Dr. Kimberly Witkop, his supervisor. 	He told her about his earlier interaction
with Dr. Pisani. 	Dr. Shibley told Dr. Witkop that Dr. Pisani had accused him of
documenting 	a 	history 	and 	physical 	on 	ST. 	without 	performing 	a 	physical

No. 72855-5-1/3
examination. Dr. Witkop then asked Dr. Shibley ifthe accusation was true, and he
said it was.
On February 17, 2011, Dr. Witkop and Gary Brenner, the interim human
resources director, met with Dr. Shibley. 	Dr. Witkop told Dr. Shibley that she was
concerned that he had documented a history and physical examination without
examining the patient. 	Dr. Shibley again acknowledged, in the presence of both
Dr. Witkop and 	Brenner, that 	he 	had 	not performed the history and 	physical
examination of ST. 	Dr. Witkop told Dr. Shibley that SVH was terminating his
employment.
Dr. Shibley signed a severance agreement and release on March 1, 2011.
SVH provided him with 30 days of severance pay in compensation for signing the
severance 	agreement. 	The 	severance 	agreement 	stated 	that 	Dr. 	Shibley
unconditionally 	released 	SVH 	from 	any 	and 	all 	claims 	stemming 	from 	his
employment or termination.
On March 14, 2011, Dr. Shibley was notified that SVH's Medical Executive
Committee (MEC) voted to terminate his clinical privileges, effective March 8,
2011. The letter cited Dr. Shibley's unprofessional conduct as the reason. And, it
notified Dr. Shibley that he could request a hearing before a three member panel
to contest the MEC's recommendations.
Also on March 14, SVH submitted an adverse action report concerning Dr.
Shibley to the 	National 	Practitioner Data 	Bank (NPDB). 	The NPDB collects
information from health care entities so as to improve health care quality, protect
the 	public, 	and 	reduce 	health 	care 	fraud. 	Health 	care 	entities—including

No. 72855-5-1/4
hospitals—are required to report certain adverse actions to the NPDB. SVH's first
report concerning Dr. Shibley classified its adverse action as a 	revocation of
clinical privileges and termination of employment. And, it stated that Dr. Shibley's
employment and privileges were terminated because of "one act of unprofessional
conduct exhibited as documentation of conducting a patient history and physical
without having examined the patient."
Then, on April 12, 2011, SVH submitted a second adverse action report to
the NPDB. This report was identical to the first report, except it labeled the action
taken as a summary suspension of Dr. Shibley's clinical privileges, rather than a
termination.
On March 18, 2011, Dr. Shibley requested a hearing to challenge the MEC's
recommendation that his privileges be terminated. 	This hearing was held in May
and June 2011, before a three member panel. 	Dr. Shibley was represented by
counsel at this hearing. 	He called ST. and 	her husband to testify, 	and 	he
questioned Dr. Witkop, Dr. Pisani, and Brenner. 	The panel found that Dr. Shibley
falsified the history and physical for ST., upholding the MEC's recommendation.
Dr. Shibley then took advantage of his right of final appellate review by
SVH's Board of Commissioners (Governing Body). 	The Governing Body affirmed
both the MEC and the panel, permanently terminating Dr. Shibley's privileges on
January 5, 2012.
SVH also reported Dr. Shibley to the Washington Department of Health
Medical Quality Assurance Commission. Dr. Shibley stipulated that he dictated an
inaccurate note relating to S.T.'s vital signs and physical examination. As a result,

No. 72855-5-1/5
the Commission found 	that Dr. Shibley committed 	unprofessional conduct in
violation of RCW 18.130.180(4). On November 6, 2012, the Commission entered
its order placing Dr. Shibley's credentials on probation.
Dr. Shibley sued SVH, Dr. Witkop, and Dr. Pisani (collectively "defendants").
He 	alleged 	ten 	causes 	of 	action: 	negligence, 	breach 	of 	contract, 	national
origin/race/ethnicity 	discrimination; 	wrongful 	discharge; 	chapter 	7.24 	RCW
declaratory judgment; defamation against SVH and against all other defendants;
violation 	of the Washington 	Consumer 	Protection 	Act, 	chapter 	19.86 	RCW;
violation of the Washington blacklisting statute, RCW 49.44.010; and vicarious
liability.
Defendants moved for summary judgment. 	The trial court granted this
motion 	on 	November 20, 	2014. 	In reaching this conclusion, 	the trial court
dismissed both Dr. Witkop and Dr. Pisani as defendants, because there was no
legitimate cause of action against either of them. 	And, the court found that no
reasonable finder of fact could conclude that the hospital was negligent in firing Dr.
Shibley or that it breached a contract with him. The trial court also found that SVH
did not breach any duty to Dr. Shibley with regard to its reports to the NPDB.
Furthermore, the court found that SVH was immune from liability for these reports
and Dr. Shibley had waived his right to challenge them.
Defendants then moved for attorney fees and costs, and the trial court
denied their motion. 	Dr. Shibley appeals the dismissal of his lawsuit on summary
judgment. 	Defendants cross appeal the denial of their motion for attorney fees.

No. 72855-5-1/6
DISCUSSION
Dr. Shibley argues that the trial court erred in dismissing his lawsuit on
summary judgment. He claims that SVH was not entitled to immunity for its reports
to the NPDB, because it failed to follow the proper procedures and it defrauded
him. And, he asserts that the trial court erred in holding that he released SVH from
liability for his employment and termination related claims. 	Defendants cross
appeal, arguing that they were entitled to attorney fees below, and they are also
entitled to attorney fees on appeal
Summary judgment is proper when the pleadings, affidavits, depositions,
and admissions on file demonstrate there is no genuine issue of material fact. 	CR
56(c). 	The moving party has the burden to establish that there is no genuine
dispute over a material fact, and reasonable inferences must be drawn in favor of
the nonmoving party. 	Atherton Condo. Apartment-Owners Ass'n Bd. Of Dirs. v.
Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). 	Summary judgment
should be granted only if a reasonable person could reach only one conclusion.
Folsom v. Burger King. 135 Wn.2d 658, 663, 958 P.2d 301 (1998). 	We review
summary judgment rulings de novo, engaging in the same inquiry as the trial court.
Jg\
I. 	SVH's Immunity for Reporting to the NPDB
Dr. Shibley argues that SVH failed to follow the appropriate procedures
before it took action against his privileges. 	And, he claims that SVH defrauded
and defamed him through its reports to the NPDB. 	As a result, he contends that
the trial court erred by concluding that SVH was entitled to immunity.

No. 72855-5-1/7
The Health Care Quality Improvement Act of 1986 (HCQIA), recognizes the
need to improve medical care by encouraging physician peer review.1 	42 U.S.C.
§ 11101. 	The HCQIA does this by requiring health care entities to report certain
actions taken against physicians. 	42 U.S.C. § 11133(a). 	Under this statutory
scheme, any person who participates with or assists a professional review body
with a professional review action is immune from liability damages. 	42 U.S.C. §
11111(a)(1). 	Immunity is granted, so long as the peer review action meets the
requirements 	of 42 	U.S.C. 	§ 	11112(a). 	42 	U.S.C. 	§ 	11111(a)(1). 	These
requirements are that a peer review action must be taken:
(1) in the reasonable belief that the action was in the furtherance of
quality health care,
(2) after a reasonable effort to obtain the facts of the matter,
(3) 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, and
(4) in the reasonable belief that the action was warranted by the facts
known after such reasonable effort to obtain facts and after meeting
the requirement of paragraph (3).
42 	U.S.C. 	§ 	11112(a). 	A 	peer 	review 	action 	is 	presumed 	to 	meet these
requirements, unless the plaintiff rebuts the presumption by a preponderance of
the evidence. 	42 U.S.C. § 11112(a).
The HCQIA specifies the notice and hearing procedures that are adequate
or fair under the circumstances. 	42 U.S.C. § 11112(b). 	It provides that a health
care entity meets this 	requirement if it provides the 	physician 	notice of the
1 Washington has explicitly adopted the HCQIA in its Health Care Peer
Review Act, 	clarifying that the federal 	requirements 	of the 	HCQIA apply 	in
Washington as well. 	RCW 7.71.020.

No. 72855-5-1/8
proposed action stating its reasons, notifying the physician that he may request a
hearing, and informing him of his rights. 	42 U.S.C. § 11112(b)(1). 	And, if the
physician does request a hearing, he must be given notice of the hearing's place,
time, and 	date, and a 	list of the witnesses expected to testify. 	42 	U.S.C. §
11112(b)(2). 	If a hearing is held, it must be before an impartial decision-maker.
42 	U.S.C. 	§ 	11112(b)(3). 	At the hearing, the physician 	has the 	right to be
represented by an attorney, have a record made of the proceedings, call and
cross-examine 	witnesses, 	present 	evidence, 	and 	submit 	a 	written 	closing
statement. 	42 U.S.C. § 11112(b)(3). 	However, failure to follow these procedures
does not automatically mean that a hospital did not meet the requirements of 42
U.S.C. § 11112(a)(3). 	42 U.S.C. § 11112(b). 	In fact, the statute recognizes that
these 	procedures 	should 	not 	be 	construed 	as 	"precluding 	an 	immediate
suspension or restriction of clinical privileges, subject to subsequent notice and
hearing or other adequate procedures, where the failure to take such an action
may result in an imminent danger to the health of any individual." 	42 U.S.C. §
11112(c).
As a preliminary matter, Dr. Shibley contends that SVH's adverse action
was invalid, because he did not have privileges to act against. 	He argues that
under the medical staff bylaws (Bylaws),2 his privileges terminated six months after
they were granted. 	Article 4, Section 4(b) of the Bylaws provides for clinical
privileges: 	"Provisional 	Medical 	Staff members shall 	be 	provisionally granted
2 The medical staff practicing at SVH have adopted the Bylaws to promote
quality health care, encourage quality professional performance, provide rules
governing the medical staff, and institute procedures to discuss relevant issues.
8

No. 72855-5-1/9
Clinical 	Privileges. 	Their performances shall be observed 	by the 	Medical
Executive Committee to determine the eligibility of such provisional members for
membership on the Active Medical Staff and for exercising the Clinical Privileges
provisionally granted to them." 	Article 4, Section 4(a) of the Bylaws addresses
medical staff appointments,
All initial appointments to the Medical Staff shall be to the provisional
Medical Staff for a period of six months. 	At the conclusion of six
months, the Medical Staff will: (i) recommend the Practitioner be
appointed to the active or courtesy Medical Staff according to his or
her original application; (ii) be reappointed to the provisional staff for
an additional period 	not exceeding 18 months allowing additional
observation; or, (iii) be removed from the Medical Staff. . . . Upon
expiration of a Practitioner's appointment to the provisional staff, the
failure 	to 	transfer the 	Practitioner from 	provisional 	to 	Active 	or
Courtesy Medical Staff Membership shall be conclusively deemed a
termination of his staff appointment.
Because he was originally granted provisional privileges no later than September
1, 2010, Dr. Shibley asserts that his privileges conclusively terminated on February
28,2011.
We do not read Article 4, Section 4 of the Bylaws as narrowly as Dr. Shibley
does.3 	Importantly, article 1, section 5 instructs on how to construe the Bylaws.
Section 5(d) provides:
Time periods referred to in these bylaws for actions by the Medical
Staff, its committees and the Governing Body are advisory only and
not mandatory. 	While no 	such actions shall be required to 	be
accomplished in less time than that specified, extensions should be
granted or permitted for reasonable cause or for the convenience of
participants. 	Time periods specified for the giving of or complying
with Special Notices, on the other hand, are mandatory and shall be
strictly observed and complied with by all parties.
3 Neither party argues that Dr. Shibley's signing of the severance agreement
automatically terminated his clinical privileges. 	Therefore, we look to the Bylaws
to analyze whether Dr. Shibley still had privileges when the MEC took action
against him.

No. 72855-5-1/10
The time for review of provisional staff appointments and their privileges is not a
special notice for purposes of article 1, section 5. Therefore, it is advisory that the
MEC review provisional staff appointments prior to the expiration of the initial six
month period, not mandatory. 	And, SVH's director of medical staff services,
Barbara 	Donovan, 	explained 	that 	physicians 	often 	remain 	provisional staff
members for 6 to 10 months, depending on how long it takes for the MEC to meet
and 	consider the 	matter. 	We conclude that 	Dr. 	Shibley's privileges did not
automatically expire on February 28, 2011.
Assuming that he did have privileges, Dr. Shibley argues that SVH's reports
to the NPDB were invalid for one of two reasons. 	Either the MEC initially used the
correct label, termination, and provided him inadequate procedures, or it initially
used the wrong label, reported the more severe sanction of termination, and
attempted to defraud him by later changing the label to summary suspension.
The Bylaws provide that when the MEC's corrective action might result in a
reduction or suspension of privileges, the physician shall be permitted to appear
before the MEC beforehand. 	But, article 7, section 2 of the Bylaws outlines
different procedures appropriate for a summary suspension of privileges. 	Under
this section, the MEC is authorized, "whenever action must be taken immediately
in the best interest of patient care in the Hospital, to summarily suspend all or any
portion of the Clinical Privileges of a Practitioner, and such summary suspension
shall become effective immediately upon imposition." 	When the MEC exercises
this authority, 	it must provide the physician a written 	report of the summary
suspension. The physician has the right to request the MEC to consider the matter
10

No. 72855-5-1/11
at its next meeting. 	The physician also has a right to a hearing before a three
member panel and to a final appellate review.
Here, the MEC decided that Dr. Shibley's conduct presented such a serious
threat 	to 	patient 	safety 	that 	his 	privileges 	should 	be 	stopped, 	pending
administrative review. 	SVH communicated this decision to Dr. Shibley in a letter
dated March 14, 2011, labeling its action as a termination of privileges. This letter
informed Dr. Shibley that he could request a hearing before a three member panel.
Also on March 14, SVH reported to the NPDB that Dr. Shibley's privileges had
been revoked because of an instance of unprofessional conduct. 	Dr. Shibley
retained a lawyer, who requested a hearing before a three member panel. 	The
next month, on April 12, SVH filed a corrected report with the NPDB, which labeled
the adverse action as a summary suspension of privileges. 	In May and June, Dr.
Shibley received a hearing before a three member panel. 	The panel affirmed the
MEC's recommendation. 	And, in December, Dr. Shibley pursued final appellate
review 	by 	the 	Governing 	Body. 	The 	Governing 	Body 	affirmed 	the
recommendations of the MEC and the panel. Accordingly, Dr. Shibley's privileges
were permanently terminated on January 5, 2012.
Thus, despite SVH's initial label of its adverse action, the record shows that
Dr. Shibley's privileges were summarily suspended, not terminated. 	The panel
acted 	immediately to protect patient safety, 	and 	Dr. Shibley received 	all the
process that the Bylaws provide for a summary suspension.4 	The record further
4 Dr. Shibley also asserts that he was denied his constitutional right to
procedural due process. 	But, even assuming that he had a protected property or
11

No. 72855-5-1/12
shows that when SVH became aware of the erroneous label given to its adverse
action, it corrected the mistake by sending a second report to the NPDB. 	This
second report was 	identical to the first report, except it accurately labeled its
adverse action as a summary suspension of privileges rather than a termination.
Although Dr. Shibley asserts this correction was part of a cover up intended to
defraud him, nothing in the record suggests that SVH sent the corrected report for
any reason other than to accurately reflect the action taken.5
Dr. Shibley also contends that SVH defamed him by reporting to the NPDB
that he had documented a history and physical examination without first examining
the patient. 	He asserts that a question of material fact exists as to whether he
actually examined ST.
liberty interest at stake, Dr. Shibley has not explained what additional procedures
he was entitled to under the Due Process Clause.
And, due process is flexible. 	Morissev v. Brewer, 408 U.S. 471, 481, 92 S.
Ct. 2593, 33 L. Ed. 2d 484 (1972). 	When the circumstances require immediate
action, post-deprivation process satisfies the requirements of the Due Process
Clause. 	Gilbert v. Homar, 520 U.S. 924, 930, 117 S. Ct. 1807, 138 L. Ed. 2d 120
(1997). Matters of public health and safety—such as the discovery that a physician
poses an 	immediate danger to 	public safety—require the government to act
quickly. 	N. Am. Cold Storage Co. v. City of Chicago, 211 U.S. 306, 315-16, 29 S.
Ct. 101, 53 L Ed. 195 (1908): Guttman v. Khalsa, 669 F.3d 1101, 1114 (10th Cir.
2012). Because the MEC determined that Dr. Shibley posed an immediate danger
to patients at SVH, a hearing after the fact was sufficient to satisfy the Due Process
Clause.
5 And, Dr. Shibley has not shown how he was damaged by SVH's initial
mistake and later correction. 	As he believed he no longer had privileges at SVH,
Dr. Shibley was not still attempting to exercise his privileges and denied the
opportunity to do so. 	Nor has he articulated how termination is a more damaging
label than summary suspension. 	He has not produced any evidence to suggest
that if SVH originally reported a summary suspension to the NPDB, it would have
affected his ability to obtain and keep employment.
12

No. 72855-5-1/13
But, 	the 	MEC 	decided 	to 	summarily suspend 	Dr. Shibley's 	privileges
because he admitted to committing unprofessional conduct. 	Dr. Witkop informed
the MEC of this admission and Dr. Shibley's resulting termination of privileges.
The MEC, after a lengthy discussion, voted to take action against Dr. Shibley's
privileges. 	Later, at the hearing before the three member panel, 	Dr. Shibley
testified that he averaged existing lab results when documenting S.T.'s history and
physical. 	Averaging prior lab results is not standard medical practice, nor did Dr.
Shibley indicate that he was doing so on the history and physical. 	And, in the
Medical Quality Assurance Commission's findings of fact, Dr. Shibley stipulated
that he inaccurately documented S.T.'s vital signs and physical examination. 	He
agreed to the entry of the Commission's conclusion of law that he committed
unprofessional conduct through incompetence, negligence, or malpractice that
injures a patient or creates an unreasonable risk that a patient might be injured.
Thus, the MEC made a reasonable effort to obtain the facts before it acted
to stop Dr. Shibley's privileges. 	And, in later proceedings, Dr. Shibley confirmed
that he did commit unprofessional conduct—he simply disagreed with how he did
so. 	Dr. Shibley's unprofessional conduct triggered SVH's adverse action. 	The
report to the NPDB of suspension for unprofessional conduct was not false, and
therefore could not be defamatory.
The remaining question is whether SVH's actions satisfied the requirements
of 42 U.S.C. § 11112(a) such that SVH is entitled to immunity. 	In arguing that they
did not, Dr. Shibley compares this case to Brown v. Presbyterian Healthcare
Services, 101 F.3d 1324 (10th Cir. 1996) and Osuagwu v. Gila Regional Medical
13

No. 72855-5-1/14
Center. 850 F. Supp. 2d 1216 (D.N.M. 2012). 	In Brown, the physician presented
sufficient evidence that the defendants did not make a reasonable effort to obtain
the facts before taking a peer review action. 	101 F.3d at 1333. 	And, the NPDB
report listed the disciplinary action as negligence, incompetence, or malpractice,
but the 	review panel 	and 	the 	Board of Trustees 	never found 	the 	physician
negligent, incompetent, or guilty of malpractice. 	Id at 1334. 	From this, the court
concluded that a reasonable jury could have determined that the report was false
and the defendants knew of its falsity. 	Id. 	In Osuagwu, the physician presented
evidence that the peer review hearings did not give him an opportunity to confront
and cross-examine witnesses against him, and the panel was not impartial. 	850
F. Supp. 2d at 1239. 	And, the physician presented evidence that the defendants
did not make a reasonable effort to obtain the facts of the case. ]d. Therefore, the
physicians 	in 	both 	Brown 	and 	Osuagwu 	met 	their 	burden 	of 	rebutting 	the
presumption that the peer review actions met the standards of 42 	U.S.C. §
11112(a). 	Brown, 101 F.3d at 1334; Osuagwu. 850 F. Supp. 2d at 1239. 	The
defendants were not entitled to immunity. 	Brown, 101 F.3d at 1334; Osuagwu,
850 F. Supp. 2d at 1239.
Here, Dr. Shibley did not present evidence rebutting the presumption that
SVH met the requirements of 42 U.S.C. § 11112(a). Although he claims that SVH
made the adverse action reports without making a reasonable effort to obtain the
facts, he does not support this claim with evidence. 	Instead, the facts show that
Dr. Shibley's employment was terminated because he admitted to multiple people
14

No. 72855-5-1/15
that he falsified a patient's history and physical. 	Dr. Witkop informed the MEC of
this incident of unprofessional conduct and Dr. Shibley's termination.
Moreover, there is no evidence to suggest that SVH failed to obtain the facts
or was aware of any falsity in its reporting to the NPDB. Dr. Shibley has not shown
that SVH knew that termination was an inaccurate characterization of the MEC's
action at the time this first report was made. Instead, Dr. Shibley's communications
with Jay Rodne, SVH's general counsel, show that SVH made a corrected report
to the NPDB once it realized that the action was more accurately considered a
summary suspension.
Nor has Dr. Shibley shown that the procedures afforded to him were not fair
under the circumstances. 	Under 42 U.S.C. § 11112(c), notice of the proposed
action is not required when the failure to take action may result in imminent danger
to the health of any individual. Here, the MEC believed that immediate action was
necessary to protect patient safety, and it followed the procedures set out in the
Bylaws for emergency action. 	Unlike in Brown and Osuagwu, Dr. Shibley has not
demonstrated by a preponderance of the evidence that SVH's actions did not
comply with 42 U.S.C. § 11112(a).
We hold that SVH was entitled to immunity for its reports to the NPDB.
Therefore, all of Dr. Shibley's claims relating to SVH's reports to the NPDB were
properly dismissed on summary judgment.
II. 	Dr. Shibley's Employment and Termination Related Claims
The 	remainder of Dr. Shibley's arguments address the dismissal of his
claims related to his employment and termination. 	He asserts that SVH breached
15

No. 72855-5-1/16
his employment agreement and the Bylaws by terminating him without providing
him notice and an opportunity to cure. 	And, he argues that Dr. Witkop terminated
him in retaliation for his exercise of his First Amendment right to free speech.
After SVH terminated Dr. Shibley's employment, he signed a severance
agreement. 	In the 	severance 	agreement, 	Dr. Shibley 	explicitly agreed 	to
unconditionally release SVH and its employees "from any and all claims, demands,
liabilities, and causes of action of every kind stemming from or in any way related
to [his] employment by District or the termination of the employment relationship."
Dr. Shibley received severance pay in exchange for this release. 	Dr. Shibley has
not made any demonstration that this agreement is unenforceable. Therefore, we
conclude that the severance agreement bars 	Dr. Shibley's employment and
termination related claims.
Consequently, the trial court properly dismissed Dr. Shibley's claim that
SVH breached the employment agreement. 	Dr. Shibley asserts that under the
employment agreement, SVH was required to give him notice and a reasonable
opportunity to cure before it terminated him. 	But, whether SVH complied with the
employment agreement when it terminated Dr. Shibley falls within the category of
claims relating to Dr. Shibley's employment and termination that he contracted
away. 	Dr. Shibley cannot now challenge this aspect of his termination.
Dr. Shibley's retaliation claim is also barred by the severance agreement.
Dr. Shibley asserts that Dr. Witkop terminated his employment in retaliation for
exercising his right of free speech. 	But, Dr. Witkop's motivation for terminating Dr.
Shibley's employment is related to the termination of his employment. 	Dr. Shibley
16

No. 72855-5-1/17
released not only SVH, but also its employees from all claims related to his
termination. 	He cannot now contend that Dr. Witkop terminated him in retaliation
for exercising his right of free speech.
Dr. Shibley has not stated a cause of action that is unrelated to either SVH's
reports to the NPDB or his employment and termination. 	Therefore, we hold that
the trial court did not err in granting summary judgment to Defendants.
III. 	Attorney Fees
Defendants cross appeal, arguing that the trial court erred in denying their
motion for attorney fees and costs. 	And, they contend that they are entitled to
attorney fees on appeal.
In the court below, Defendants argued that they were entitled to attorney
fees under RCW 70.41.210, 42 U.S.C. §11113, RCW 7.71.035, and the Bylaws.
The trial court declined to award attorney fees on any of these bases. 	We review
the legal basis for an attorney fee award de novo, and we review a discretionary
decision to award or deny attorney fees for an abuse of discretion. 	Gander v.
Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 (2012).
Defendants 	argue 	that 	attorney 	fees 	are 	mandatory 	under 	the 	state
reporting statute. 	RCW 70.41.210 requires the chief administrator or executive
officer of a hospital to report to the Washington Department of Health when a
health care practitioner's practice is restricted, suspended, limited, or terminated
because the practitioner committed unprofessional conduct. 	And, 	it provides
immunity from suit for any hospital or administrator who files a report under this
section, unless the report is based on a finding that was not made in good faith.
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RCW 70.41.210(5). 	It also allows for an award of reasonable attorney fees to the
prevailing party in an action alleging the finding or report was not made in good
faith. 	Id. This statute is distinct from the federal reporting scheme, which governs
reports to the NPDB, rather than the state Department of Health.
RCW 70.41.210(5) clearly mandates attorney fees only for a report filed
"under this section," meaning with the Department of Health. 	In the amended
complaint, Dr. Shibley asserted on several occasions that the report to the NPDB
was false. 	But, Dr. Shibley never alleged that the separate report made to the
Department of Health was false. 	Nor did 	he claim that this separate report
constituted a cause of action. Therefore, attorney fees were not mandatory under
RCW 70.41.210.
Defendants also argue that they are entitled to discretionary attorney fees
under RCW 7.71.035, 42 U.S.C. § 11113, and the Bylaws. 	They claim that Dr.
Shibley's claims were entirely precluded by immunity and release, so his lawsuit
cannot be considered well-intentioned.
The Washington health care peer review act provides that in an action under
RCW 7.71.030, the court shall award attorney fees to the prevailing party, if the
other party's claim, 	defense, 	or conduct was frivolous, 	unreasonable, without
foundation, or in bad faith. 	RCW 7.71.035(1). 	Similarly, the HCQIA allows for a
discretionary award of attorney fees if the professional review action meets the
standards set out in 42 U.S.C. § 11112(a), the defendant substantially prevails,
and the plaintiff's claim or conduct during litigation was frivolous, unreasonable,
without foundation, or in bad faith. 	Cohlmia v. St. John Med. Ctr., 749 F.3d 1175,
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No. 72855-5-1/19
1178 (10th Cir. 2014); 42 U.S.C. § 11113. And, article 2, section 6 of the Bylaws
provides that the court may award attorney fees and costs to the prevailing party
in a suit concerning membership on the medical staff or clinical privileges at the
hospital.
Defendants assert that Dr. Shibley's claims were frivolous, because they
were entirely precluded by liability or release. 	But, several of Dr. Shibley's claims
challenged SVH's adverse action reports to the NPDB. 	These reports occurred
after Dr. Shibley was terminated and after he signed the severance agreement.
The severance agreement did not address NPDB reports. 	Whether Dr. Shibley
succeeded 	on 	those 	claims 	turned 	on 	whether 	SVH 	followed 	the 	proper
procedures and investigated the facts. 	This challenge was not frivolous. 	Even
though Dr. Shibley's other claims were precluded by the severance agreement,
the trial court concluded that the suit as a whole was not frivolous or in bad faith.
We agree.
Defendants further claim that Dr. Shibley's appeal is frivolous, so they
should be awarded attorney fees for defending against it. This court has authority
to require a party to pay attorney fees as sanctions, terms, or compensatory
damages when the party files a frivolous appeal. 	RAP 18.9(a); Advocates for
Responsible Dev. v. W. Wash. Growth Mgmt. Hr'gs Bd., 170 Wn.2d 577, 580, 245
P.3d 764 (2010). 	An appeal is frivolous if, in light of the entire record, we are
convinced that the appeal has no debatable issues on which reasonable minds
could disagree, and 	the 	appeal is so 	meritless that there is no possibility of
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No. 72855-5-1/20
reversal. Tiffany Family Trust Corp. v. City of Kent. 155 Wn.2d 225, 241, 119 P.3d
325 (2005). 	We resolve all doubts against finding the appeal frivolous. Jd.
We decline to categorize this appeal as frivolous, for the same reasons that
the lawsuit itself was not frivolous. 	Therefore, we hold that Defendants are not
entitled to attorney fees below or on appeal.
We affirm.
WE CONCUR:
JL^t%^
20