A motion filed Aug. 7 by attorneys for Wrangell Medical Center is seeking to give physician Greg Salard a choice – continue an appeal in court of his denial of privileging by the former Wrangell Medical Center Board of Directors, or seek reinstatement through a new board that will be seated on Aug. 28.
In a memorandum attached to a motion to deny Salard and his attorney, Lee Holen of Anchorage, an extension of time to file a reply brief in the case, WMC attorney Steven Rose said Salard’s request was not valid.
“A renewed application for privileges before the administrative body below is not permitted while this Court has exclusive jurisdiction,” he stated.
Rose also alleged that Salard’s request should be considered untimely.
“Salard should not be permitted to hedge his bet and pursue both administrative relief and a judicial remedy simultaneously,” he added. “If he seeks restoration of his privileges from a new WMC Board, he must withdraw this appeal.”
The physician filed an appeal of the decision not to grant him privileges to work at the hospital on March 9. The filing, which came exactly a week after the former WMC board acting as a “fair hearing” committee, voted to deny Salard permanent privileges to practice at the hospital.
Salard is employed by Alaska Island Community Services and was previously privileged to practice at WMC on an interim basis. He still works at the AICS Tideline clinic, but is no longer allowed to see patients in the WMC emergency room or long-term care.
An initial hearing was held Feb. 21, with the board reaffirming on March 2, a November decision denying Salard the privilege of working in the hospital.
Holen said that, aside from case law she believe supports Salard’s position, she is planning on filing a motion for reconsideration under Alaska’s Rules of Civil Procedure.
“I’m looking at Rule 60(b) and 77(k) as the basis for having a lower body, in this case, the WMC board, consider the reapplication,” Holen said. “The lower body has jurisdiction to deny the request, or if they are going to grant it, then Greg would withdraw his appeal.”
Those rules apply to reconsideration or relief from prior judgments or orders.
According to Holen, the WMC is attempting to get Salard to drop his appeal prematurely.
“What the hospital is trying to do is get him to withdraw his appeal in advance, and we don’t want to do that,” she added.
Holen spelled out her client’s claim in an Aug. 10 request to file a reply to the WMC motion.
“A reply to WMC’s opposition is required because the hospital has misstated the procedure utilized under Alaska when a party to an appeal requests reconsideration or relief from judgment from the lower court or administrative body,” she stated.
She added that the request is not being made as a delay tactic, but is meant to conserve resources in an appeal that she says could, “become moot within the next month.”
Citing the case of Duriron Co. vs. Bakke, Holen alleges that Salard can appeal in court – and seek reinstatement from a new board – at the same time.
“The appellant was not forced to drop the appeal to pursue a Rule 60(b) motion as WMC contends should happen here,” her filing states. “Instead, the Supreme Court held the Superior Court had jurisdiction to deny the Rule 60(b) motion, and if it determined it would grant the reconsideration, then it must obtain a remand from the appellate court.”
Holen goes on to say in her filing that the court should allow both the appellate proceedings and reconsideration by a new WMC board to go forward concurrently.
“The law in Alaska does not prohibit Salard’s application to the new Board given the new evidence arising after the appeal was filed,” she states. “Further, requesting review by the Board does not end this court’s jurisdiction or create any kind of concurrent jurisdiction. A remand (or dismissal) of Salard’s appeal is required only if the Board determines to grant his reconsideration request.”
Holen’s filing also questions WMC’s query of what Salard’s remedy would be if he were allowed to pause the court-based appeal while pursuing a new round of privileging.
“The answer is simple: If the new Board restores his privileges, this appeal will become moot and Salard will withdraw or dismiss the appeal,” her filing states. “If not, this appeal goes forward … for these reasons, Salard (requests) this court grant an extension of time to September 20, 2012 to file his Reply Brief.”
Rose filed his own opposition to Holen’s reply on Aug. 13 and noted why he felt the court should deny Salard’s request for a time extension to reply.
“In support of his request for leave to file a reply to (WMC’s) opposition to this motion, (Salard) states that this reply is necessary as appellee WMC has misstated the applicable Alaska law,” Rose states in his brief. “On July 25, 2012, well in advance of the filing of (Salard’s) motion for an extension of time, WMC advised (Salard’s) counsel of its position with regard to an extension of time to file a reply, and (Salard’s) counsel advised that she had not researched the issue raised therein.”
The filing by Rose also alleges that Salard and his attorney have already had enough time to formulate their arguments.
“As demonstrated above, counsel for (Salard) not only knew that WMC would oppose the requested 51-day extension of time to file his reply, but already had in writing WMC’s stated legal basis for such opposition and the legal authority for this position,” the brief states. “Therefore, (Salard) had ample opportunity to research and address WMC’s argument in its opposition and the legal authority cited therein in his initial motion. There is therefore no reason to permit a reply.”
According to Rose, under Alaska law, in order to appeal an administrative decision to a superior court, it must be a final decision and the appellant must have exhausted his administrative remedies.
“It is our position that, should Dr. Salard either pursue a motion for reconsideration or reapply for non-provisional privileges before the Board to be elected on August 21, this matter will fail to satisfy either of these prerequisites for an appeal to the Superior Court,” he stated. “While we have no objection to staying the current appeal to allow for the election and certification of a new board, should Dr. Salard wish to pursue either avenue before the new board, this appeal need be dismissed.”
A new WMC Board of Directors is set to be in place Aug. 28, after the Borough Assembly certifies the Aug. 21 special election results.
As of deadline, First District Court Judge Kevin Miller has not yet ruled on the motions.
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