alone sufficient grounds for termination in every case, without exception, regardless of the nature of the dependency, successful rehabilitation from it, and/or its remoteness in time. In the words of Defendant's counsel, the absolute bar would apply even to "a baby smoking a marijuana cigarette." The deponent testifying as the representative of Defendant, Network Director Marie Carpenter, confirmed that a physician would be terminated on the basis of substance abuse even if his only abuse was that "as a preadolescent the physician had a chemical dependency arising out of the use of marijuana" which had been successfully treated or overcome without treatment.
In particular, Ms. Carpenter clarified that whether the health care provider's substance abuse had ever resulted in any harm to a patient and whether the health care provider posed any risk to future patients were not considered relevant to the termination decision. In the instant case, Defendant expressly did not consider whether Plaintiff had put patients at risk in the past, nor whether he posed any risk to future patients. Defendant also does not contend that Plaintiff's probationary monitoring program is inadequate to protect patient safety.
This absolute bar imposed on care providers with a history of substance abuse is in contrast to Defendant's treatment of a physician with a history of malpractice. A physician with a history of malpractice is not terminated from participating physician status without an individualized determination of the risk he poses to future patients, based upon such factors as the number of malpractice cases and the period of time in which they arose, as well as an evaluation of the availability of alternative medical care in the area.
Ms. Carpenter also testified on behalf of Defendant that Plaintiff's termination was based solely on the thirty days notice termination provision, not on the automatic termination provision. She further testified that, to her knowledge, no provider had ever been terminated by operation of the automatic termination provision due to the imposition of a sanction by a regulating agency, but only under the thirty day notice provision. Finally, she testified that the automatic termination provision was not in fact automatic, but rather was subject to an explicit procedure allowing Defendant to decide to retain a provider who had been sanctioned.
Ms. Carpenter's testimony on behalf of Defendant is consistent with Defendant's responses to Plaintiff's requests for admissions. Defendant denied that it had either a practice or a policy of terminating the participating physician agreement of every physician placed on probation by a state licensing agency. There is no contrary evidence in the record to the effect that the apparent provision for automatic termination upon imposition of a sanction was in fact considered, treated or utilized as such by Defendant.
Termination of Plaintiff's participating physician status creates a financial incentive for those of his patients insured by Defendant to find a new doctor, since these patients must pay increased deductibles and co-payments if they continue to receive care from him. In addition, other participating physicians in the network are prohibited from referring patients to Plaintiff as a non-participating provider unless there is no participating provider available.
1. Standard for Summary Judgment
Summary judgment is properly granted when no genuine and disputed issues of material fact remain, or when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288-89 (9th Cir. 1987).
The moving party bears the burden of showing that there is no material factual dispute. Therefore, the Court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986); Intel Corp. v. Hartford Accident and Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
2. Civil Code § 51.5 Claim
Plaintiff seeks summary adjudication that Defendant applied the at-will termination provision of its participating physician agreement with Plaintiff in a discriminatory manner based upon his disability, in violation of California Civil Code § 51.5. That statute provides that:
No business establishment of any kind whatsoever shall discriminate against, boycott or blacklist, refuse to buy from, sell to, or trade with any person in this state because of the race, creed, religion, color, national origin, sex, or disability of the person...