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2/19/2013 5:00:00 PM
Hospital attorneys ask court to dismiss Sahlolbei's federal suit

Marty Bachman


BLYTHE - Attorneys for Palo Verde Hospital and several past and present Healthcare District Board members as well as former CEO Peter Klune, asked a federal court to dismiss a lawsuit filed by the hospital's chief of staff, Dr. Hossain Sahlolbei, in a response to his suit filed last week.

Sahlolbei's suit claims the defendants violated his First and Fourteenth Amendment rights and seeks injunctive relief and damages for alleged civil rights violations.

The motion for dismissal was based on four primary legal contentions: That Sahlolbei' s complaint fails to state a viable claim because he cannot identify any substantive harm he has already incurred as a result of the defendants' actions, much less harm that arises from a constitutional violation. Second, because the state court lawsuit filed by the hospital (at the board's direction) is relatively new.

"Dr. Sahlolbei cannot demonstrate he can or will be the prevailing party, and that in the process, he will suffer substantive harm," the motion contends. "Moreover, a peer review proceeding - one that Dr. Sahlolbei requested -is now pending at the Hospital. No substantive action harming or limiting Dr. Sahlolbei's medical staff privileges has occurred."

The motion notes that the Healthcare District Board has recently voted to rescind the approval to enter into an exclusive contract for surgical services, which makes the claim of retaliation moot.

"Because any substantive harm Dr. Sahlolbei can or will incur from Defendants' actions is speculative, hypothetical, and will not occur until some point in the future, the present lawsuit is "not" ripe, and should be dismissed," the motion states.

The third requirement for a viable claim is proof the defendant is a "state actor," which the defendants, according to the motion, were not. The fourth contention was that the defendants are "absolutely" immune from liability in a lawsuit where their potential liability arises from "votes" they make in a legislative-like or quasi judicial setting.

"Dr. Sahlolbei's claim is not viable, and his lawsuit should be dismissed because his primary substantive contention is that Defendants "voted"/ decided to (a) file a civil lawsuit for fraud against him; (b) deferred his application for reappointment to the Medical Staff for a full term of two years, instead extending his staff privileges for another three months pending an investigation; and (c) approved a measure that would permit the Hospital to enter into an exclusive contract for surgical services," the motion reads. "In the alternative, should this Court not dismiss Dr. Sahlolbei's lawsuit on the grounds set forth immediately above, this Court should invoke the Younger abstention doctrine and stay this entire action pending the outcome of Dr. Sahlolbei's administrative peer review proceedings at the Hospital, any subsequent judicial review, and the results of the state court civil lawsuit."

According to hospital lawyers, under Younger, where a state administrative or court proceeding is pending which implicates important state interests and provides the federal court plaintiff with an adequate opportunity to assert his federal claims, the District Court must refuse to exercise subject matter jurisdiction.

"Because that is the case here, this Court should simply dismiss or stay this lawsuit until Dr. Sahlolbei' s state proceedings end," the motion contends. "Consequently, this Court should dismiss Dr. Sahlolbei's lawsuit in its entirety, or in the alternative, stay his claims under Younger.

Hospital attorneys claim that Sahlolbei's lawsuit asserts unsworn allegations including retaliation for his attacks on board members at public meetings.

"Dr. Sahlolbei likes to present himself as an advocate of improving the quality of healthcare delivery at the Hospital," the motion states. "He maintains that on numerous occasions he has publicly criticized "the culture of cronyism and corruption" he contends exists at the hospital.

Sahlolbei accused the defendants of retaliating against him by "unlawfully holding up his application to be reappointed to the Medical Staff." He alleged that former Board President Jim Carney sent him a letter stating that his reappointment application was incomplete because Sahlolbei had not provided the board with information responsive to an allegation that he was involved in a "fee-splitting" scheme with hospital anesthesiologist, Dr. Brad Barth. Sahlolbei responded that the board lacked the authority to declare his reappointment application incomplete and stated that the "fee-splitting" charges were without merit. He also claimed that the filing of a civil lawsuit for fraud against him in Riverside County Superior Court, arising from his professional and financial relationship with Barth, was retaliatory as well, as was the former board's action to contract out surgical services.

In November, Sahlolbei had his privileges at Palo Verde Hospital extended for three months in order to provide him with time to turn over the information concerning his contract with Barth, subject to the condition that his privileges would end if the hospital entered into an exclusive contract for surgical services with another provider.

Sahlolbei's attorneys argued that the board, under the bylaws, could only approve or deny his privileges for two years. The motion argues that Sahlolbei still has privileges therefore no harm has occurred to him.

In January, a new board ended the search for a surgical contractor and the medical staff, which had won a temporary restraining order to prevent surgery from being contracted out, dropped its suit. Again, the motion claims that he can show no damages.

The motion asked the court to examine Sahlolbei's two allegations of serious misconduct purportedly engaged in by defendants.

"First, Dr. Sahlolbei is unhappy that in October, 2012, the Hospital filed a civil lawsuit against him, asserting claims of fraud," the motion states. "Second, Dr. Sahlolbei maintains that during the fall of 2012, the Board improperly refused to provide him with a full two-year reappointment to the Medical Staff, instead providing him with "just" a three-month reappointment. However, a reasonable explanation of the Board's decision to grant a three month reappointment is that it maintained the status quo (and allowed Dr. Sahlolbei to continue practicing medicine at the Hospital) while also allowing him more time to provide the Board with information and documents concerning his professional and financial relationship with Dr. Barth, in the hope that such additional information would allow the accusations of financial misconduct asserted against Dr. Sahlolbei to finally be put to rest."

The motions states that while the defendants allegedly asked Sahlolbei not to publicly criticize the board and that one defendant allegedly touched him on the shoulder on one occasion, neither of the two actions taken by the board (or any of the defendants), rose to the level of being a deprivation of a constitutionally protected personal or property interest right, because Sahlolbei cannot demonstrate, at the present time, that he has suffered any tangible harm.

Using the example of the hospital's fraud lawsuit against Sahlolbei, attorneys for the hospital noted that the case had not yet gone to trial, and without a decision on the merits,

Sahlolbei cannot demonstrate that the lawsuit was wrongfully filed, that it improperly and unlawfully deprived him of a constitutionally-protected personal or property interest right, and that he has been harmed as a result.

"The same is true of Dr. Sahlolbei's contention that Defendants have acted improperly by refusing, to date, to approve his application for a full, two-year reappointment to the Hospital's Medical Staff," the motion states. "The fact is that at no time relevant did Dr. Sahlolbei lose the right to practice medicine at the Hospital. He never was suspended from the Medical Staff, and never had any encumbrances or restrictions placed on his practice of medicine at the Hospital. At the present time, therefore, Dr. Sahlolbei has not been the "victim" of any "negative" action taken against him by the Defendants that he can establish has already caused him harm."

The motion contends that since the board's vote to suspend all efforts to move forward in identifying an exclusive provider contract for surgery services and transportation services at the hospital makes Sahlolbei's claim of retaliation moot.

"Sahlolbei cannot demonstrate Defendants' conduct has already caused him tangible harm to his personal and/or property interests," the motion states. "Accordingly, this Court should dismiss his lawsuit in its entirety."

Sahlolbei's lawsuit was filed in United States District Court Central District of California. A March 18 hearing is scheduled in the courtroom of Judge Terry J. Hatter, Jr. Go to pvvt.com to view the hospital's response and other related documents.

Download the Motion to Dismiss 1

Download the Motion to Dismiss 2

Download the declarations submitted

Download Interim-CEO Dennis Rutherford's declaration

Download the Memorandum of Points

Related Stories:
• TIMES EDITORIAL: Conflicts at Palo Verde Hospital will soon cost someone their life
• Emergency transport helicopters to be banned from landing at hospital
• Medical Staff drops lawsuit against hospital board
• TIMES EDITORIAL: At Palo Verde Hospital: Another one bites the dust
• Healthcare District Board votes 3-2 to fire CEO Peter Klune
• Fired hospital chief had proposed basing helicopter at hospital prior to dismissal

Related Links:
• Sahlolbei sues hospital in federal court
• Former DA warns board members of potential conflicts
• Sahlolbei no stranger to courtrooms: Hospital Chief of Staff has sued at least 17 people in Riversid


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Reader Comments

Posted: Friday, February 22, 2013
Article comment by: @ to @ one bright move after another

First off, why would they make any recommendations in regards to transport other than compliance when it has nothing to do with profitability for the hospital? Does not take a brain surgeon to figure that one out an second if they have seen the uproar over exclusives here I doubt they will recommend one since they also work with public relations for the hospital. They will recommend an increase in services with things like a rural care clinic among other things. (deleted). The consultants or the board can not force the docs to give it up since it is contractually obligated. Keep holding your breath if you really think there is a snowballs chance in **** that the consultants are going to recommend exclusives. Lastly, "The Twins" as many of the nasty people here like to call them have names and you could at least afford them the courtesy of using them. I do not know why I even bother telling a person this that likes to hide behind a computer and won't come to one of the board meetings and say what they think like the people that you all love to hate do

Site Administrator's note: A portion of this comment has been removed because it violated our Terms of use Agreement.

Posted: Thursday, February 21, 2013
Article comment by: To @ one bright move and phantom nose

You said:
"This is at a cost of around 150k dollars and they guarantee, willing to put it in writing, that they will return 5 dollars for every dollar spent."
That is if you do what they recommend.
What will the twins do if the recommendation is an exclusive contract for surgery and Transport. To cancel all on-call contracts and any directorships not required by law?


Posted: Thursday, February 21, 2013
Article comment by: Ralph Hoofenagle

You don't have to worry about that 1.8 mil. The Rooster and his hens are cleaning house, they should surely cut that much in wages. Besides in about six months the Rooster will turn against them and make a big deal about how much money they are making and then fire them as well. History is repeating itself again. MARK MY WORDS

Posted: Thursday, February 21, 2013
Article comment by: @ phantom nose

Changed the time? What are you talking about? Their meetings have started at 5 pm for quite some time and that has not changed

Posted: Thursday, February 21, 2013
Article comment by: just me@one bright move after another

Yes you are right they now have HFS consultants taking over as CEO.. My understanding is for two months only...They've been here before and are familiar with the mec Doc...Heard from a good source they fired CNO Tara Barth,CFO Dennis,complaint control officer....and one employee walked out..Next it will be Dr.Barth.@just me just me..Oh I know how he works he tried the delete with the best Dr.in Blythe Dr.Montgomery....And took a dump and it can happen again..Pray with me ....

Posted: Thursday, February 21, 2013
Article comment by: We Need Our Town's Help!

Blythe People!
Please help save our hospital! Get involved. The meetings seem to be consumed with the three board members and the good dr, supporters. According to the last meeting, the next meeting is Wed. 2-27-13 at 5 pm. At City hall.(New place and date).
We need to help support the two board members that are out numbered.How can firing all the current administration help our hospital except to rid the people with knowledge of what is really going on!


Posted: Thursday, February 21, 2013
Article comment by: Phantom Nose

Teflon usually wears out after awhile. Can we hope?

Posted: Thursday, February 21, 2013
Article comment by: Another Thought

Ever notice how Dr is always putting the cart before the horse? Ever notice the troubles at PVH ALWAYS involve DR?? Different ceo, board, members, staff come and go BUT DR IS ALWAYS INVOLVED, lol. Waa, waa he keeps touching me, he looked at me wrong, lol - what a baby boy. I'm suing, I'm suing, I'm suing - hey DR - U R THE PROBLEM - this community is tired the ego and selfishness - u have run off very good people because of the giant EGO. To all the defenders of this guy, baa, baa, baa - keep on being sheep and following PVH into bankruptcy. Thanx twins - u will receive all the credit as well.

Posted: Thursday, February 21, 2013
Article comment by: @ one bright move and phantom nose

The board at the last meeting in a 5-0 vote hired on a firm that will come in and evaluate everything at the hospital and find the areas where things can be improved and revenues gained. This is at a cost of around 150k dollars and they guarantee, willing to put it in writing, that they will return 5 dollars for every dollar spent. Seems like a no brainer to me and seems that they are following the same path that everyones favorite guest writer john lemay humble suggested. In regards to the meetings the old meetings actually started at 4 pm under the old board, they then went into closed session and resumed public session when they were done. I think 4 was much tougher for most to make than 5. The meetings were moved to pvid because it seated another 15 to 20 people but with all the fan fare around town that still was not adequate. They have now moved the meetings to the 2nd and 4th wed of the month at city hall were there should be adequate seating and they have microphones where everyone can hear. So tell me what is really wrong with what they did or are you just looking for something to complain about?

Posted: Thursday, February 21, 2013
Article comment by: @Just me Just me

I wish I could be as excited as you. This man is ever-so-capable (with Burton and the twins' avid support) of escaping what should actually happen to him. He is truly an escape artist like none we've ever seen.

Posted: Thursday, February 21, 2013
Article comment by: Phantom Nose

Sounds like dejavu all over again. Don't I recall that the first thing one of the twins did the last time she got on the board was get rid of a management company and hire a high priced CEO who she gushed all over?

Isn't the new transparency great? First the twins moved the meeting day so it would conflict with other public meetings in Blythe. Then they moved the meeting place with minimal public notice. Then they canceled a meeting with minimal public notice. Then, this week they changed the meeting time with minimal public notice. Is the new meeting time supposed to make it harder for out-of-favor board members to participate? Is there now a precedent that meetings will be cancelled whenever a board member is not available? Or, is the precedent that meetings will be cancelled whenever a twin or their gofer is not available?


Posted: Thursday, February 21, 2013
Article comment by: just me @just me

Yes I am excited and was ever so happy to see that he didn't win the case as quick as he thought he would..And no I'm not confused I know there will be a hearing March 18th..And praying that he will be on the bottom side there to...I hope and pray the fraud case is continued.. Sorry, but he needs to go..Things aren't going to change until he is out of the picture...

Posted: Thursday, February 21, 2013
Article comment by: One bright move after another

If I understand it correctly we have traded a CEO and CFO ($727,000 a year) for a management company with a CEO here Wednesday through Friday for 1.8 million a year). Keeps him out of our good doctors hair and lets the twins run amuck!

Posted: Wednesday, February 20, 2013
Article comment by: We The People for the People

This article is too complicated for most of the readers to understand. To sum it up the case is still on, the defendants have responded and plaintiff has not suffered at all. Just look how he has taken back the hospital, the ER, Surgical Services and Transportation. We must stay on this subject until were heard!

Posted: Wednesday, February 20, 2013
Article comment by: @ just me

Why so excited? They filed a motion and that is it. It does not say they won. Are you confused?


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