IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

SANTANU SOM, D.O. IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI Plaintiffs-Appellants Supreme Court No. 2011-CA-00741 VS. Adams County Chancery Court No. e12004-195 THE BOARD OF TRUSTEES OF THE NATCHEZ REGIONAL MEDICAL CENTER AND THE NATCHEZ REGIONAL MEDICAL CENTER Defendants-Appellees BRIEF OF SANTANU SOM, D.O. Christopher T. Graham (MSB No ) HEILMAN LAW GROUP, P.A. III East Capitol Street, Suite 250 Jackson,~S 39201 Post Office Drawer 24417 Jackson, ~ississippi 39225-4417 Telephone: (601) 914-1025 Facsimile: (601) 960-4200 ATTORNEYS FOR SANTANU SO~, D.O. PLAINTIFF/APPELLANT ORAL ARGUMENT REQUESTED

CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges ofthe Court of Appeals may evaluate possible disqualification or recusal. I. Santanu Som, Appellant 2. Christopher T. Graham Heilman Law Group, P.A. Post Office Drawer 24417 Jackson, Mississippi 39225-4417 Counsel for Dr. Santanu Som 3. Honorable E. Vincent Davis Adams County Chancery Court Judge P.O. Box 1106 Natchez, MS, 39121 4. Board of Trustees of the Natchez Regional Medical Center 5. The Natchez Regional Medical Center 46 Sgt. Prentiss Dr. #200 Natchez, MS, 39120-4251 6. Walter Brown Walter Brown Law Firm P.O. Box 963 Natchez, Mississippi, 39121 Counsel for Board of Trustees of the Natchez Regional Medical Center and The Natchez Regional Medical Center d~ Christopher T. Graham

TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iii I. STATEMENT OF THE ISSUES... I II. STATEMENT OF THE CASE... 2 III. STATEMENT OF FACTS... 2 IV. SUMMARY OF THE ARGUMENT... 7 V. ARGUMENT... 8 A. The AHI Committee Failed to Follow the Medical Staff Bylaws by Refusing to Allow Dr. Som to Cross-Examine the Expert Witness Utilized by the Medical Executive Committee to Conduct the Alleged PEER Review... 9 B. The PEER Review Conducted by the Hospital Did Not Comply with Professional Standards Governing PEER Reviews... II VI. CONCLUSION... 18 CERTIFICATE OF SERVICE... 19 CERTIFICATE OF FILING... 20 11

TABLE OF AUTHORITIES Page CASES Baker v. State, 307 So. 2d 545 (Miss. 1975)... 10 Hackethal v. California Medical Assn., 138 Cal.App.3d 435... 16 Kentucky v. Stincer, 482 U.S. 730 (1987)... 9 Lowe v. Lowndes County Bldg. Inspection Dept., 760 So. 2d 711 (Miss. 2000)... 10 Lloyd v. Jefferson Davis Memorial Hospital, 345 So. 2d 1046 (Miss. 1977)... 8 Mississippi State Bd. of Psyhological Examiners v. Hosford, 509 So. 2d 1049 (Miss. 1987)... 9 Prewittv. State, 156 Miss. 731 (1930)... 10 Sosa v. Val Verde Mem'l Hosp., 437 F.2d 173 (5th Cir. 1971)... 8,11 U.S. v. Yates, 438 F.3d 1307 (11th Cir. 2006)... 9 Wong v. Garden Park Cmty. Hosp., Inc., 565 So. 2d 550 (Miss. 1990)... 9 Wong v. Stripling, 881 F.2d 200 (5th Cir. 1989)... 8,9 STATUTES 42 U.S.C. 11112... II Miss. Code Ann. 73-25-93... 8, 10 iii

I. STATEMENT OF THE ISSUES A. Whether a medical doctor has the right to cross-examine a medical expert at an administrative hearing where the hospital bylaws enacted to ensure a fair hearing expressly allow for such cross-examination. B. Whether a peer review not conducted in compliance with governing professional standards can be the basis to terminate the hospital privileges of a doctor. 1

II. STATEMENT OF THE CASE This matter arises out of the summary suspension of Dr. Santanu Som' s clinical privileges for intra-abdominal surgeries at Natchez Regional Medical Center ("NRMC") in January, 2009. The Medical Executive Committee recommended and ordered the summary suspension, which limited Dr. Som from performing intra-abdominal surgeries at the hospital but did not prohibit him from performing other surgical procedures. Following the summary suspension, Dr. Som sought a review of the limitation on his medical privileges by requesting a hearing with the Medical Executive Committee. In violation of the Medical Staff Bylaws, the Medical Executive Committee refused Dr. Som the right to cross-examine the expert witness that the Medical Executive Committee utilized in the hearing to justify its decision. Following the hearing, the Medical Executive Committee issued its findings and decision affirming, by a vote of 4-1, the "decision of the MEC to summarily suspend [Dr. Som's] clinical privileges for intra-abdominal surgeries..." In accordance with the NRMC bylaws, Dr. Som sought an appellate review by the Board of Trustees of the Hospital. The Board of Trustees simply rubber-stamped the decision by the Medical Executive Committee through a Final Decision dated September 30, 2009. Dr. Som timely filed a petition in the Chancery Court of Adams County, challenging the limitations placed on his medical privileges by the Hospital. The chancellor affirmed, and Dr. Som has timely sought redress in this Court. III. STATEMENT OF THE FACTS Dr. Som is a surgeon who graduated from New York College of Osteopathic Medicine in 2002. After completing his residency program, Dr. Som became an employed physician of Natchez Community Hospital. Due to the severe shortage of general surgeons in Adams County, 2

Dr. Som also eventually sought medical privileges at Natchez Regional Medical Center ("NRMC" or the "Hospital"). NRMC is a community hospital located in Natchez and owned by Adams County. NRMC is a medical/surgical hospital licensed for 179 beds with a primary service area including the Mississippi Counties of Adams, Franklin, Jefferson and Wilkinson, as well as Concordia Parish, Louisiana. Due to the poor operational management at NRMC, the Hospital filed for bankruptcy protection in 2009. Dr. Som joined the medical staff of NRMC on June 10, 2008, as an associate member credentialed to practice general surgery. In August 2008, the Medical Executive Committee determined to conduct a peer review of Dr. Som' s surgical cases. While selecting cases of Dr. Som's to review, the Medical Executive Committee apparently received complaints in November, 2008, from three nurses who had met and decided to make written complaints against Dr. Som. [R.E. 5-71. These complaints concerned surgery performed by Dr. Som on November 23, 2008. Id. Around that time, the Medical Executive Committee formed an Ad Hoc Investigative Committee to investigate the complaints. The Ad Hoc Investigative Committee consisted of three physicians: John A. White, Dr. Purvis and Dr. Haimson. [R.E. 3, Tr. p. 103, In 20-23 1 ]. Dr. Haimson has a business relationship with one of the members of the Medical Executive Committee, Dr. Passman, that determined Dr. Som's fate. [R.E. 2, R. at Vol. 2, p. 256). As such, either Dr. Haimson should not have been involved in the AHI Investigative Committee or Dr. Passman should not have been involved in the Medical Executive Committee determining Dr. Som' s case. According to Ed Daly, Chairman of the Medical Executive Committee and Chief of Staff of NRMC, the Ad Hoc Investigative Committee recommended the suspension of Dr. Som's 1 Citations to the June 24, 2009 Medical Executive Committee Hearing will be made by the following: Tr. followed by the page number (Tr.~. 3

intra-abdominal surgical privileges. [R.E. 3, Tr. at 101]. According to Dr. Daly, the Medical Executive Corrunittee "based upon the recommendations of the [Ad Hoc Investigative Committee,]... felt like probably the best thing was just to stick to the [Ad Hoc Corrunittee's] recorrunendations." Id. Dr. Passman participated on the Medical Executive Committee, despite that fact that his business partner had served on the Ad Hoc Investigatory Committee that recorrunended discipline against Dr. Som. [R.E. 2, R. at Vol. 2, p. 256]. By letter dated January 21, 2009, the Medical Executive Committee notified Dr. Som of the surrunary suspension of his clinical privileges for intra-abdominal surgeries. [R.E. 41. According to the letter dated January 21, 2009, an outside reviewer had "concluded that there are certain areas of concern regarding [Dr. Som's] performance of intra-abdominal surgeries." Id. Dr. Som cooperated with the Ad Hoc Investigative committee and provided an interview on February 16,2009. On February 27, 2009, the Medical Executive Committee continued the surrunary suspension of Dr. Som's intra-abdominal privileges "based upon the findings of an independent peer reviewer and subsequent interview with [Dr. Som] on February 16,2009." [R.E. 8]. The Medical Executive Committee did not cite the nurse complaints referenced above as a reason to continue the summary suspension. On June 24, 2009, the Medical Executive Committee and/or the Governing Bod/ provided Dr. Som a hearing to challenge the findings and order of the Medical Executive Corrunittee to surrunarily suspend Dr. Som's intra-abdominal surgical privileges. [R.E. 31. As required under Mississippi Law, the Medical Staff Bylaws governed the hearing and provided essential procedural protections to a medical practitioner such as Dr. Som: Article VIII HEARING AND APPELLATE REVIEW PROCEDURE 2 This Committee will be referred to herein as the Medical Executive Committee. The June 24, 2009 hearing will be referred to as the Medical Executive Committee Hearing. 4

Section I Right to Hearing and Appellate Review 1.4 Procedure. All Hearings and appellate reviews, unless otherwise specified in these Bylaws, shall be in accordance with the procedural safeguards set forth in this Article VIII. See R.E. 9, R. at Vol. I, p. llo. One of the procedural safeguards in Article VIII is the right of the practitioner to cross-examine witnesses called by the Medical Executive Committee: Section 5 Conduct of Hearing 5.9 Rights. Each party shall have the following rights: to present relevant infonnation regardless of its admissibility in a court of law, to call and examine witnesses, to introduce written evidence, to cross-examine any witness on any matter relevant to the issue of the Hearing, and to challenge any witness and to rebut any evidence and to submit written memoranda at the close of the Hearing. See R.E. 9, R. at Vol. I, p. 15 (emphasis added). In accordance with the plain language of Section 5.9, Dr. Som sought to cross-examine the expert physician who conducted the alleged peer review at issue in this case. The hearing officer prevented Dr. Som from doing so. During the hearing, the following exchanges took place: [By Dr. Som's counsel,) Mr. Grass: My client would like to question this witness and I think it might be helpful to the board members if he did so. [By the Medical Executive Committee trial counsel,) Mr. Luke: Committee, we would express a strong objection. And just for the need to maintain decorum in a proceeding, we don't need this to generate into a debate between physicians. There is appropriate procedure exact [sic) that we're represented by counsel and I think his counsel is qualified to ask questions... but we certainly reserve strong objections about interplay between physicians. [By counsel for the Hospital,) Mr. Brown: I think the objection is well taken Madam Chainnan. He has counsel and Dr. Som is going to testify. I think it would be inappropriate to allow the party to ask questions when he's represented by counsel. [Ruling by the Chainnan,) Dr Russ: He is appropriately represented by counsel, Mr. Grass, and we ask you to - 5

[By Dr. Som's counsel,] Mr. Grass: In that event what we're going to do, I think, is just excuse this witness and let Dr. Som respond. [R.E. 3, Tr. p. 46, In 21 - p. 47, In 17]. Throughout the expert's testimony, Dr. Som attempted to question the expert. llil Tr. p. 57, 61]. During Dr. Som's testimony, the expert was brought back in to answer questions from the Committee members, but Dr. Som was still denied the opportunity to cross-examine the expert. Id.; [Tr. p. 132, 139, 140, 141, 142]. Ultimately, everyone in the room, except Dr. Som, was given the opportunity to question the expert. Following the hearing, the Medical Executive Committee issued its findings and decision affirming, by a vote of 4-1, the "decision of the MEC to summarily suspend [Dr. Som's] clinical privileges for intra-abdominal surgeries. "The fact that the vote was not unanimous underscores the conclusion that reasonable minds could differ as to the appropriate outcome of this case. In accordance with the NRMC bylaws, Dr. Som sought an appellate review by the Board of Trustees of the Hospital, which simply rubber-stamped the decision by the Medical Executive Committee through a Final Decision dated September 29, 2009. [RE. 10]. Notably, at the Board of Trustees hearing, the Board invited one of Dr. Som's accusers, Dr. Daly, to remain in the boardroom during a closed executive session. [R.E. 10, Tr. at p. 30]. After the Board of Trustees had made its decision, Dr. Som timely filed a petition in the Chancery Court of Adams County, challenging the limitations placed on his medical privileges by the Hospital. [R.E. 2, R. at Vol. 1, p. 2]. Dr. Som argued that the Medical Executive Committee did not follow its own bylaws, violated Dr. Som's due process rights, and failed to conduct a peer review in compliance with governing professional standards. [R.E. 2, R at Vol. 1, pp.50-66]. The chancellor found that because Dr. Som was given a hearing and an opportunity to be heard, Dr. Som's due process rights had not been violated. [R.E. 2, R at Vol. 2, p. 254]. 6

Specifically, the chancellor determined that because Dr. Som was represented by counsel at the hearing, Dr. Som had been afforded an opportunity to cross-examine witnesses. Id. Finally, the chancellor found that the Medical Executive Committee had conducted an objective and unbiased peer review. [R.E. 2, R. at Vol. 2, pp. 256-57). Aggrieved, Dr. Som has timely filed his brief with this Court, seeking to have this Court reverse the Chancery Court of Adams County so that Dr. Som can have a fair and objective hearing. IV. SUMMARY OF THE ARGUMENT The Medical Executive Committee did not follow its own Medical Staff Bylaws, namely Section 5.9 that grants a party the right to cross-examine witnesses. Dr. Som and his counsel determined in advance that Dr. Som would cross-examine the medical expert testifying against Dr. Som. After all, both Dr. Som and the hospital's peer reviewer were both medical experts with knowledge of Dr. Som's medical practice. The tactical decision to permit Dr. Som to crossexamine the opposing expert was clearly reasonable, and Section 5.9 specifically provides that a party may cross-examine an adverse witness. Nonetheless, in violation of Section 5.9, and Dr. Som's due process rights as provided by Section 5.9, the chairman denied Dr. Sorn the right to confront his accuser in a meaningful way, simply because he had counsel present. Notably, this was not a typical trial where the rules of evidence apply but an administrative hearing with medical professionals on both sides of the aisle. Aside from the hospital's violation of Dr. Som' s due process rights and its own bylaws, the proceedings against Dr. Som were also tainted in numerous other ways. Specifically, Dr. Som's peer review was in plain violation of the governing standards promulgated by the Joint Commission on Accreditation of Healthcare Organization as well as the Health Care Quality Improvement Act of 1986. Because the hospital failed to follow these procedures, Dr. Som did not receive a full and fair hearing and his medical privileges have been revoked. 7

V. ARGUMENT Under the common law in Mississippi, all hospitals have the right to limit the staff privileges of physicians for good cause. Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989) (explaining private hospitals possessed common law right to limit privileges in context of physician who had privileges revoked because of various allegations of unprofessional and impermissible conduct). Although available to an aggrieved physician, judicial review is limited. In Lloyd v. Jefferson Davis Memorial Hospital, the Mississippi Supreme Court adopted the policy of limited judicial review of hospital peer review proceedings. Lloyd v. Jefferson Davis Memorial Hosp., 345 So. 2d 1046,1048 (Miss. 1977) (adopting reasoning of Fifth Circuit and quoting Sosa v. Val Verde Mem'l Hosp., 437 F.2d 173 (5th Cir. 1971). The Chancery Court ultimately sits as an appellate court in hospital peer review proceedings. However, the power of the hospital to conduct peer reviews and to limit clinical medical privileges has defined limits. Mississippi law requires hospitals to develop bylaws that provide its physicians with due process in peer review proceedings and in proceedings concerning a physician's medical privileges. Under Section 73-25-93 of the Mississippi Code, hospitals must follow their established bylaws and consult with their medical staff in reaching their decision concerning a physician's privileges. Section 73-25-93 provides: (1) Any hospital licensed pursuant to sections 41-9-1 et seq. is authorized to suspend, deny, revoke or limit the hospital privileges of any physician practicing or applying to practice therein, if the governing board of such hospital, after consultation with the medical staff considers such physician to be unqualified because of any of the acts set forth in section 73-25-83; provided, however, that the procedures for such actions shall comply with the hospital and/or medical staff bylaw requirements for due process. Miss. Code Ann. 73-25-93 (emphasis added). An aggrieved physician may appeal the hospital's decision to chancery court pursuant to Section 73-25-95, which reviews the decision based on the record made in the hospital's proceedings. See Wong v. Stripling, 881 F.2d 200, 8

202 (5th Cir. 1989) (citing Mississippi State Bd. ofpsyhological Examiners v. Hosford, 509 So. 2d 1049 (Miss. 1987)). As discussed below in Section B, a hospital such as NRMC is also subject to the requirements set forth by the Health Care Quality Improvement Act of 1986 ("HCQIA") and the Joint Commission on Accreditation of Health Care Organizations ("JCAHO"). While neither the HCQIA nor the JCAHO guidelines create a private cause of action for a practitioner such as Dr. Som, the guidelines do provide standards by which hospitals such as NRMC must comply. A. The AHI Committee Failed to Follow the Medical Staff Bylaws by Refusing to Allow Dr. Som to Cross-Examine the Expert Witness Utilized by the Medical Executive Committee to Conduct the Alleged PEER Review The Confrontation Clause guarantees defendants a fair cross-examination. U.S. v. Yates, 438 F.3d 1307, 1335 (11th Cir. 2006) (citing Kentucky v. Stincer, 482 U.S. 730, 739, 107 S. Ct. 2658, 2664, 96 L.Ed.2d 631 (1987) ("[T]he Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.' ")) (citations omitted). The Medical Staff Bylaws clearly designate the procedures that apply to hearings such as the one conducted in this matter and provide the physician the right to cross-examine all witnesses. See R.E. 2, R. at 1:115. Due to the fact that judicial review of hospital credentialing hearings is limited, it is crucial that a hospital follow the procedures for due process established in the Bylaws. Sosa, 437 F.2d at 177; see also Wong v. Garden Park Cmty. Hosp" Inc., 565 So. 2d 550, 551 (Miss. 1990) (holding that the main issue is whether the hospital complied with the procedural due process requirements prescribed by its own bylaws). The plain language of Section 5.9 does not instruct that because a party has counsel, he may not cross-examine a witness in the administrative hearing. See R.E. 2, R. at I: 115. Accordingly, Dr. Som and his attorney detennined in advance that Dr. Som, a medical expert, 9

would cross-examine the peer reviewer, also a medical expert, used by the hospital. Indeed, most of the complaints by the hospital's expert against Dr. Som amounted to a difference of opinion concerning the choice of particular medical treatment regimens. A doctor, after all, should not be subject to discipline for following a different medical school of thought than a peer reviewer. Doctors may follow alternative schools of medicine. If given the opportunity to fully crossexamine the Medical Executive Committee's expert physician, Dr. Som would have established a proper record for review by this Court that the surgical standard of care was met in each of the three cases reviewed by that medical expert. See Baker v. State, 307 So. 2d 545, 546 (Miss. 1975) (citing Prewitt v. State, 156 Miss. 731,735,126 So. 2d 824,825 (1930) (reasoning that cross-examination "is the law's most useful weapon against fabrication and falsehood" and must not be impaired)). Dr. Som was prepared to cross-examine this witness under Section 5.9. His attorney, having no medical expertise, was not. However, in contravention to Section 5.9 of the hospital's Bylaws and Dr. Som's right to cross-examine a witness, Dr. Som was not provided the opportunity to cross-examine the expert physician, which the Medical Executive Committee utilized to support its detennination in this case. In fact, everyone in the room, except Dr. Som, questioned the expert, despite the fact that Dr. Som and the hospital's expert were the only two experts in the relevant medical field. Accordingly, Dr. Som did not receive a fair opportunity to effectively cross-examine the medical expert. Such a failure to follow its own Bylaws constitutes clear reversible error under Section 73-25-93 and clearly prejudiced Dr. Som. This Court has instructed that the "failure of an agency to abide by its rules is per se arbitrary and capricious as is the failure of an administrative body to confonn to prior procedure without adequate explanation for the change." Lowe v. Lowndes County Bldg. Inspection Dept., 760 So. 2d 711, 715 (Miss. 2000) (citations omitted). 10

As noted by the Fifth Circuit, in exercising its broad discretion, the hospital governing board must only limit the medical privileges of practitioners after providing full procedural due process to that practitioner so that he may explain or show to be untrue those matters which might lead the board to limit or restrict his privileges. Sosa, 437 F.2d at 177. As explained by the Court in Sosa, the record must clearly reflect the hospital complied with the bylaws concerning the limitation or rejection of medical privileges and absent a clear showing on the record, the action of the hospital must be reversed. The record in this matter shows that Section 5.9 did not prevent Dr. Som, himself, to cross-examine witnesses, regardless of whether an attorney was present. Moreover, in this administrative hearing, the traditional rules of evidence did not apply. It was not as if Dr. Som had to be knowledgeable about relevancy or hearsay. Preventing Dr. Som, a medical expert, from cross-examining the opposing medical expert was arbitrary and not in accordance with Section 5.9. The decision of the hospital should be reversed. B. The PEER Review Conducted by the Hospital Did Not Comply with Professional Standards Governing PEER Reviews The decision of the Medical Executive Committee was based on an investigation by an Ad Hoc Investigatory (AHI) Committee and the result of a peer review conducted by a medical expert. As noted above, peer reviews are governed by standards promulgated by the Joint Commission on Accreditation of Healthcare Organizations ("JCAHO") as well as the Health Care Quality Improvement Act of 1986 ("HCQIA"). Peer reviews conducted by NRMC are subject to those standards. Although the JCAHO and HCQIA guidelines do not establish a private cause of action, the guidelines establish standards that hospitals must meet to conduct effective peer reviews. See 42 U.S.C. 11112. An accused physician who becomes the recipient of a negative peer review recommendation is regrettably left with few options to appeal a final decision by a governing 11

board. The JCAHO, and to a large extent the HCQIA, have established guidelines that a hospital must follow in order to grant a physician the opportunity to have a hearing on the accusations raised against them. These procedures include a written statement of the charges, timely notice of the hearing, a fair hearing, the right to produce evidence, the right to counsel, and an appeal process. As it relates to the right to a fair hearing, the Comprehensive Accreditation Manual for Hospitals published by JCAHO requires hospitals to provide the following: Fair Hearing and Appeal Process for Adverse Privileging Decisions Standard MS. 4.50 There are mechanisms including a fair hearing and appeal process for addressing adverse decisions regarding reappointment, denial, reduction, suspension, or revocation of privileges that may relate to quality of care, treatment, and services Issues. See R.E. II at MS-24; R. at Vol. 2, p.l67. As explained in the manual, "mechanisms for fair hearing and appeal processes are designed to allow the affected individual a fair opportunity to defend herself or himself regarding the adverse decision to an unbiased hearing body of the medical staff, and an opportunity to appeal the decision of the hearing body to the governing body." ld. (emphasis added). Part of the fair hearing process is the right of an accused practitioner to receive an unbiased review of his or her credentials and privileges: Standard MS.4.15 The decision to grant or deny a privilege(s), and/or to renew an existing privilege(s), is an objective, evidenced-based process. See R.E. II at p. MS-17. Under Standard MS.4.IS, the hospital must ensure the existence of objectivity throughout the decision making process. 12

The JCAHO has established the following objective criteria that must be evaluated when making decisions concerning a physician's medical privileges: I. Current licensure and/or certification 2. The applicant's specific relevant training 3. Evidence of physical ability to perform the requested privilege 4. Data from professional practice review by an organization(s) that currently privileges the applicant (if available) 5. Peer and/or faculty recommendation 6. When renewing privileges, review of the practitioner's performance within the organization See R.E. 11 at p. MS-17; R at Vol. 2, p.160. "Each of the criteria used are consistently evaluated for all practitioners holding that privilege." Id. As one of the criteria, peer reviews are also governed by the JCAHO standards: Peer Recommendation Standard MS. 4.70 Deliberations by the medical staff in developing recommendations for appointment to or termination from the medical staff and for the initial granting, revision or revocation of clinical privileges include information provided by peer(s) of the applicant. See R.E. 11 at p. MS-25; R at Vol. 2, p.l68. The JCAHO standards define a Peer Recommendation as "information submitted by an individual(s) in the same professional discipline as the applicant reflecting their perception ofthe practitioner's clinical practice, ability to work as part of a team, and ethical behavior or the documented peer evaluation of practitioner specific data collected from various sources for the purpose of evaluating current competence." See R.E. 11, at p. 17. In this case, Dr. Som's peer review was biased in numerous ways. First of all, the peer reviewers on the Ad Hoc Investigatory committee included Dr. Haimson who is the business partner of a member of the Medical Executive Committee who determined Dr. Som's case. [RE. 2, (R at Vol. 2, p. 256). Dr. Haimson can hardly be described as an unbiased peer to Dr. Som. 13

Furthennore, the expert retained by the Medical Executive Committee to review selected cases by Dr. Som was admittedly not asked to perfonn a true peer review of Dr. Som because he did not even know the identity of the physician he was reviewing and the cases were hand picked by Dr. Som's main accuser, Dr. Kenneth Stubbs. [R.E. 3; Tr. at p. 50, In 5-7]. A truly effective peer review requires the reviewer to become acquainted with the physician and his qualifications, for the peer reviewer to be selected from a hospital similar in size to the physician's hospital, and that the records reviewed be randomly selected, rather than handpicked by one's primary accuser. None of these happened in this case. Additionally, the Medical Executive Committee and the peer reviewer failed to consider all six criteria established by the JCAHO. The criteria established by JCAHO is important because it is the method by which the hospital can ensure objectivity in its credentialing and privileging process. Although it is inaccurate to assume that all peer review committees are predisposed to targeting a certain type of physician, it is nonetheless accurate to suggest that the peer review process employed by NRMC in this case offers peer review participants the ability to practice arbitrary peer review with little fear of repercussion. The victims of arbitrary peer reviews share many of the same traits that usually make them an easy target for those seeking to disqualify them from practicing in a hospital. For example, solo practitioners lacking political support are frequently victims of arbitrary peer review actions. Physicians in large groups, who have politically connected mentors and colleagues, can often deflect disciplinary actions. A solo physician or a physician new to a hospital doesn't have the same resources. With this in mind, Dr. Som contends that the hospital committed reversible error by not reviewing data available from Natchez Community Hospital. [R.E. 121. Dr. Som specifically requested the Medical Executive Committee to consider this data and seek input from officials from Natchez Community Hospital prior to making its decision. Dr. Som's request is 14

particularly important considering the limited number of procedures he performed at NRMC when compared to the number of procedures he performed at Natchez Community Hospital. Dr. Som performed 51 intra-abdominal procedures at Natchez Community Hospital compared to only 11 at NRMC. [R.E. 121. The JCAHO standards require utilization of all six criteria when reviewing evidence concerning the credentials and/or medical privileges of a physician. This is a requirement, not a recommendation. Failure by the Medical Executive Committee to consider all 6 factors and make findings that an appellate court could review is a violation that warrants reversal of this matter. The record does not support a finding that Dr. Som received an objective, evidenced-based hearing. In addition, the Medical Executive Committee's expert physician analyzed three cases of Dr. Som, but a majority of the physician's complaints were unrelated to any care provided by Dr. Som. For instance, in one of the cases, the reviewer found clear malpractice was committed before Dr. Som ever treated the patient. The expert concluded "the patient's fate was essentially sealed" before Dr. Som became involved. [R.E. 13 at p. 4; R.E. 3, Tr. p. 50, In 11-15]. During the hearing, the evidence showed that Dr. Som was not treating the patient at the time the other physician committed this "delay in care and therefore substandard care." Notably, the report failed to explain this fact, and the other physician was not reprimanded or subjected to any peer review as a result of his substandard care for this patient. Moreover, Dr. Stubbs, Vice President of Medical Affairs of the Hospital, was the treating physician for the third patient involved in the Peer Review. [R.E. 13 at p. 11-12]. No fault was allocated to the surgical care in this case. However, questions arose concerning the administration of certain medications to this patient, but no effort was apparently made to determine whether Dr. Stubbs had ordered these medications. The involvement of other physicians in substandard care for patients - without any associated peer review conducted as to 15

those physicians - further represents that the Ad Hoc Investigatory committee was not unbiased in its decision to pursue Dr. Som. The Board of Trustees further violated Dr. Som's right to a fair hearing as well as the Medical Staff Bylaws by allowing one of the charging parties, Dr. Daly, to enter an executive session while Dr. Som's case was considered by the Board. [R.E. 10, Tr. at p. 30). Dr. Daly serves as the Chief of Staff of the Medical Executive Committee and served on all committees that investigated Dr. Som. Confronted with the exact scenario, the court in Hackethal v. California Medical Assn., 138 Cal.App.3d 435, 444,187 Cal.Rptr. 811, stated, Private executive sessions of the Judicial Council during the course of the hearings at which the referee and the counsel for the [San Bernardino California Medical Society 1 were included and at which the petitioner and his counsel were excluded present an unusual circumstance. That conduct of the Judicial Council would clearly suggest a lack of fair procedure.... Failure to object to those sessions should not be taken as binding waiver. The person whose rights are being determined should not be placed in a position of being required to object and thereby spur hostility or not object and thereby suffer waiver. Dr. Daly also served as one of three medical staff witnesses who testified against Dr. Som. Another includes Dr. Stubbs, who selected the investigative committee, helped initiate the investigation of Dr. Som, handpicked the files subject to peer review, and treated one of the three patients selected in the peer review. This entire process was directed by these two physicians and Dr. White. Accordingly, Dr. Daly's presence in the executive session tainted the review process conducted by the Board of Trustees. This deprivation, coupled with the other errors discussed herein, constitutes reversible error. The Board of Trustees also committed reversible error by summarily denying evidence presented by Dr. Som during the hearing conducted by the Board of Trustees. During the June 24, 2009 hearing, the Medical Executive Committee relied upon the testimony oftwo nurses who were critical of Dr. Som' s ability to communicate with them. Dr. Som had no opportunity to 16

conduct discovery or interview these nurses prior to the hearing. At the hearing, the nurses claimed that Dr. Som had difficulty identifying instruments during one procedure he conducted in November, 2008. In her testimony, Nurse McCann claims that Dr. Som requested a "retention bolster" from Nurse McKnight and Nurse McCann told him the hospital did not have that instrument. [R.E. 6, Tr. at p. 87]. However, in her written statement and testimony, Nurse McKnight stated that Dr. Som requested a "retention suture" and that she brought him a "retention bolster," which is a different instrument. [R.E. 7J. The nurses also accused Dr. Som of requesting equipment that he did not understand how to use. During the Board of Trustees hearing, counsel for Dr. Som sought to point to record evidence that disputed the nurses' claims. [R.E. 10 at p. 21-22). However, Dr. Som had been misled regarding the contents of the record. For instance, during the Medical Executive Committee hearing, the parties agreed the entire medical record would be made part of the record. [R.E. 3 at p. 48) (Mr. Brown: "And those charts will be made part of the record if anybody would like to review those charts, the entire chart."). However, during the Board of Trustees hearing that occurred after the Medical Executive Committee hearing, counsel for Dr. Som sought to introduce the charges for the equipment used in the November, 2008, surgery, which established that the nurses brought the wrong equipment to Dr. Som during the surgery: [Counsel for Som): There were inconsistencies if you look at it. I encourage you to read it... [The nurse) said that he asked for one thing and the list of things that were used in surgery provides that she provided the wrong stuff twice. I see them on here twice, three times. [Counsel for Medical Executive Committee]: Mr. Bland, we would object to any reference to barcodes that are not in the record. [R.E. 10 at p. 21-22). When presented with this evidence, the Board of Trustees summarily refused to consider the evidence on the erroneous basis that it was not part of the record. This 17

ruling violated Dr. Som's right to have the committee review all evidence in the record when reviewing the decision of the Medical Executive Committee. This evidence was particularly relevant and material to the allegations made against Dr. Som by the nurses. The arbitrary denial of this evidence prevented Dr. Som from a fair adjudication, particularly in light of the other restrictions placed on Dr. Som during the Medical Executive Committee hearing. This error does not require this Court to weigh this evidence; rather, this error is the result of an arbitrary decision by the Board of Trustees to limit the evidence considered in this matter. The end result is reversible error, and this Court should reverse the decision of the hospital. VI. CONCLUSION For the above and foregoing reasons, Dr. Som respectfully requests this Court to reverse the decision by NRMC and remand this matter for a full and fair evidentiary hearing wherein an unbiased Medical Executive Committee can decide this matter after a fair review of the evidence. Respectfully submitted, SANTANUSOMD,O,/ / d/k By: Christopher T. Graham OF COUNSEL: Michael A. Heilman (MSB No..~ Christopher T. Graham (MSB N~ HEILMAN LAW GROUP, P.A. 111 East Capitol Street, Suite 250 Jackson, Mississippi 39201 Post Office Drawer 24417 Jackson, Mississippi 39225-4417 Telephone: (601) 914-1025 Facsimile: (601) 960-4200 18

CERTIFICATE OF SERVICE I, Christopher T. Graham, do hereby certify that I have this day caused to be served, via hand delivery, a true and correct copy of the above and foregoing document to: Honorable E. Vincent Davis Adams County Chancery Court P.O. Box 1106 Natchez, MS, 39121 Walter Brown, Esquire WALTER BROWN LAW FIRM PLLC P. O. Box 963 Natchez, MS 39121 This the ~ 3 day of September, 20 II. a:.;dl- Christopher T. Graham 19

CERTIFICATE OF FILING I certify that I have deposited the original and four (4) copies of the Appellant's Briefin the United States Mail, postage prepaid, addressed to the Clerk ofthe Mississippi Supreme Court on this the 23rd day of September, 2011. c::la1- Christopher T. Graham 20