## Facts

- Dr. Barry G. Lew, an obstetrician-gynecologist, held probationary staff privileges at Kona State Hospital beginning April 20, 1982.
- On November 24, 1982, the hospital’s Executive Committee reviewed Lew’s performance and recommended termination of his privileges.
- The hospital administrator informed Lew of the charges and advised him of a hearing before an Ad Hoc Committee, including the ability to call witnesses.
- In February 1983, Lew sued in federal court alleging denial of due process under 42 U.S.C. § 1983 and asserting state-law claims for unfair and deceptive trade practices and defamation.
- Two days before the scheduled hearing, Lew sought emergency injunctive relief to ensure counsel, discovery/time to present witnesses, and an impartial hearing body.
- The district court entered a temporary restraining order and delayed the hearing, and the parties later entered a Consent Order setting hearing procedures.
- The Consent Order provided, among other terms, the panel’s composition, 1.5 days per side to present evidence, representation by counsel, the right to call and cross-examine witnesses, a court reporter, and timely notice of charges and supporting facts.
- The district court granted summary judgment for all defendants on the federal and state claims and imposed costs and attorneys’ fees related to Lew’s failure to appear for a deposition.
- Lew appealed the summary judgment and the sanctions order.

## Issues

1. Whether the hospital peer-review and privilege-termination process denied Lew procedural due process actionable under 42 U.S.C. § 1983.
2. Whether Lew produced sufficient evidence to proceed on Hawaii state-law claims for unfair and deceptive trade practices and defamation.
3. Whether the district court abused its discretion by ordering Lew to pay costs and attorneys’ fees after he failed to appear for his deposition.

## Decision

- The Ninth Circuit affirmed summary judgment for defendants on the § 1983 due process claim.
- The Ninth Circuit affirmed summary judgment for defendants on the state-law unfair and deceptive trade practices claim.
- The Ninth Circuit affirmed summary judgment for defendants on the defamation claim.
- The Ninth Circuit affirmed the award of costs and attorneys’ fees arising from Lew’s failure to appear at his deposition.

## Legal Principles

- Procedural due process is satisfied when the affected party receives notice of the charges and supporting facts and a meaningful opportunity to be heard through fair hearing procedures.
- Where negotiated hearing procedures provide counsel, presentation of evidence, cross-examination, and a recorded hearing, the plaintiff must produce evidence of an actual deprivation to create a triable due process issue under § 1983.
- Summary judgment is appropriate when the record shows no genuine dispute of material fact and defendants are entitled to judgment as a matter of law.
- Claims for unfair or deceptive trade practices require evidence fitting the statute’s scope; professional peer-review actions, without more, may not support such claims.
- Defamation claims fail absent evidence of actionable, unprivileged statements; conditional privileges may apply to communications made in professional evaluation and peer-review settings, and the plaintiff must show facts defeating the privilege.
- Discovery sanctions, including costs and attorneys’ fees for a missed deposition, are reviewed for abuse of discretion and may be imposed to address noncompliance.

## Conclusion

The Ninth Circuit held that the hospital’s peer-review termination procedures—particularly as established by a consent order providing notice, counsel, witness examination, and a recorded hearing—did not support a § 1983 due process claim, and that Lew’s evidentiary showing was insufficient to sustain his state-law claims; it also upheld discovery sanctions for his failure to appear at deposition.


Lew v. Kona Hospital, 754 F.2d 1420 (9th Cir. 1985)