Lohrmann v. Iredell Mem. Hosp. (Full Text)
NO. COA04-1373
NORTH CAROLINA COURT OF APPEALS
Filed: 18 October 2005
WOLFGANG E. LOHRMANN, M.D.,
Plaintiff-Appellant,
v.
IREDELL MEMORIAL HOSPITAL
INCORPORATED d/b/a IREDELL
MEMORIAL HOSPITAL’S HEALTH CARE
SYSTEM,
Defendant-Appellee.
Iredell County
No. 03 CVS 0849
Appeal by plaintiff from judgment entered 22 June 2004 by
Judge Mark E. Klass in Superior Court, Iredell County. Heard in
the Court of Appeals 16 August 2005.
Smith Moore LLP, by Samuel O. Southern and Harriett Twiggs
Smalls; and Eisele, Ashburn, Greene & Chapman, P.A., by
Douglas G. Eisele for plaintiff-appellant.
Womble Carlyle Sandridge & Rice, PLLC, by Anthony H. Brett and
Donald R. Esposito, for defendant-appellee.
McGEE, Judge.
Wolfgang Lohrmann, M.D. (Dr. Lohrmann) filed suit against
Iredell Memorial Hospital, Incorporated (Memorial Hospital) when
Memorial Hospital’s governing body suspended Dr. Lohrmann’s medical
staff privileges in early 2003. Dr. Lohrmann alleged breach of
contract, failure to comply with N.C. Gen. Stat. § 131E-85, and
violation of his rights to substantive and procedural due process
of law.
Dr. Lohrmann was a medical doctor practicing in Iredell County
in the speciality of nephrology, dealing with diseases of the
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kidney. Memorial Hospital was a nonprofit organization located in
Statesville, North Carolina, licensed to conduct business as a
hospital for the general public. Dr. Lohrmann was a member of the
medical staff at Memorial Hospital and exercised medical staff
privileges in nephrology. Memorial Hospital’s corporate bylaws and
medical staff bylaws permitted Memorial Hospital to take corrective
action against members of its medical staff. The bylaws stated
that corrective action could include suspension of medical staff
privileges.
In February and March 2002, Dr. Lohrmann provided care and
treatment to Ms. S and Mr. W, two Memorial Hospital patients. Ms.
S was an eighty-year-old patient admitted to Memorial Hospital on
14 February 2002, with a diagnosis of gangrene of the left foot.
Mr. W was a seventy-five-year-old patient who was admitted through
Memorial Hospital’s emergency room on 16 March 2002, with shortness
of breath and low blood pressure. Both patients later died while
being treated at Memorial Hospital.
At a meeting of Memorial Hospital’s Medical Executive
Committee (Executive Committee) on 22 April 2002, Arnold Nunnery,
Chief Executive Officer (CEO) of Memorial Hospital, presented
handwritten complaints by Nurse Traci Jenkins and Nurse Gail
Roberts regarding Dr. Lohrmann’s care of Ms. S and Mr. W. Nurse
Jenkins, who was also the granddaughter of Ms. S, reported that Dr.
Lohrmann made arrangements for a surgical consultation to amputate
Ms. S’s leg, despite Ms. S’s living will and despite discussion
with family members that Ms. S’s leg should not be amputated.
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Nurse Jenkins also reported that Dr. Lohrmann was unwilling to
speak with Ms. S and confirm Ms. S’s consent to the amputation in
the presence of Nurse Jenkins.
Nurse Roberts reported concerns about Dr. Lohrmann’s changes
to Mr. W’s code status, the set of instructions for medical
personnel should Mr. W. experience cardiac arrest or respiratory
failure. Nurse Roberts reported that Dr. Lohrmann changed Mr. W’s
code status twice without discussing the changes with Mr. W’s
primary physician and that Dr. Lohrmann’s instructions were too
confusing for the nurses to follow.
After reviewing the written complaints of Nurse Jenkins and
Nurse Roberts, the Executive Committee authorized a review of both
cases by an outside physician. The two cases were reviewed by Dr.
Ronald Falk (Dr. Falk), Chief of the Division of Nephrology &
Hypertension at the UNC School of Medicine. Dr. Falk submitted
his report to the CEO of Memorial Hospital in a letter dated 5 July
2002. The Executive Committee reviewed Dr. Falk’s report on 26
August 2002 and, in accordance with the medical staff bylaws,
decided that the Chair of the Department of Medicine at Memorial
Hospital would discuss voluntary suspension with Dr. Lohrmann. Dr.
Lohrmann refused the Chair’s suggested thirty-one-day suspension.
Thereafter, in accordance with the medical staff bylaws, a
departmental ad hoc investigating committee (the investigating
committee) was appointed to consider the accusations against Dr.
Lohrmann. Memorial Hospital’s CEO informed Dr. Lohrmann of the
appointment of the investigating committee in a letter dated 28
August 2002.
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The CEO and Byron E. Dunaway, M.D., president of the medical
staff of Memorial Hospital, provided Dr. Lohrmann with a statement
of the charges against Dr. Lohrmann in a letter dated 18 September
2002. The letter stated that the Executive Committee had reviewed
Dr. Falk’s report and had concluded that Dr. Lohrmann’s performance
in treating Ms. S and Mr. W was “lower than the standards of
[Memorial Hospital’s] Medical Staff[.]” The letter detailed the
following specific conduct that the Executive Committee stated
failed to meet medical staff standards: (1) violation of Ms. S’s
rights “by not honoring [her] wishes as discussed in her Living
Will and as per her family’s wishes”; and (2) violation of Mr. W’s
rights “in relation to whether or not he should be resuscitated as
provided by physician’s order . . . [which] was written on the
basis of prior discussion with [Mr. W] and [his] family.”
The investigating committee interviewed a number of
individuals, including Dr. Lohrmann, between 20 and 23 September
2002. The written summary of the investigating committee indicated
the issues concerning Dr. Lohrmann were patient rights, as well as
“communication with the patient/family/nursing/consulting physician
attending.” The investigating committee made the following
pertinent findings: (1) there was poor communication and handling
of disagreements with family members; and (2) it was not clear from
the record that Mr. W’s code status had been discussed with the
attending physician prior to the change made by Dr. Lohrmann.
The Executive Committee met on 23 September 2002 to review the
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investigating committee’s summary. Pursuant to medical staff
bylaws, Dr. Lohrmann and his attorney were present for the meeting
of the Executive Committee and were permitted to make statements
and answer questions. After the Executive Committee met with Dr.
Lohrmann and considered the investigating committee’s summary, the
Executive Committee voted to suspend Dr. Lohrmann for seven days
and to require him to complete a patient-oriented medical ethics
course.
Pursuant to Article VII, Section 2 of the medical staff
bylaws, the CEO notified Dr. Lohrmann of the Executive Committee’s
recommendation in a letter dated 24 September 2002. The letter
stated:
The reason for the adverse recommendation by
[the Executive Committee] is that your actions
taken in managing the professional services
for the patients [Ms. S and Mr. W] were below
the acceptable standards for members of the
Medical Staff. Your determination that [Ms.
S] was capable of consenting for the
amputation of a limb was inconsistent with her
medical condition and her Living Will; also it
required close coordination with involved
family members and physicians, which did not
effectively occur. Your alteration of the DNR
status of [Mr. W] without first obtaining the
concurrence of the primary physician was
inappropriate,
and
you
entered
an
inappropriate order to effect the change.
Pursuant to Article VI, Section 1(f) of the medical staff
bylaws, the Executive Committee’s recommendation for suspension
entitled Dr. Lohrmann to exercise procedural rights to a hearing
before a panel of medical staff members appointed by the president
of the medical staff. Dr. Lohrmann made a timely request for a
hearing before a panel (the panel) which was granted. At the
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panel’s hearing on 13 and 14 January 2003, Dr. Lohrmann was present
and represented by counsel who called, examined, and cross-examined
witnesses. The panel prepared a written report dated 18 February
2003 in which it concluded that a corrective action by the
Executive Committee was an appropriate response to Dr. Lohrmann’s
conduct, but recommended alternatives to suspension. In its
report, the panel also noted that it “[took] exception to [the
Executive Committee’s] conclusion that patients’ rights were
violated. Nonetheless, principles of medical ethics [were] brought
into question by Dr. L[ohrmann]’s conduct.” The Executive
Committee convened on 24 February 2003 to consider the findings of
the panel. The Executive Committee reinstated the recommendation
for a seven-day suspension and also imposed the alternatives to
suspension recommended by the panel. The Executive Committee
further decided that if Dr. Lohrmann failed to complete the
alternatives, then he would be suspended for a total of thirty-one
days.
Pursuant to the medical staff bylaws, Dr. Lohrmann appealed
the Executive Committee’s recommendation to the governing body of
Memorial Hospital. The governing body heard Dr. Lohrmann’s appeal
and affirmed the recommendation of the Executive Committee on 3
April 2003.
Dr. Lohrmann filed a verified complaint and motion for a
temporary restraining order and preliminary injunction on 4 April
2003. Judge Christopher M. Collier (Judge Collier) granted Dr.
Lohrmann’s motion for a temporary restraining order (TRO) and
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prohibited Memorial Hospital from revoking, suspending, curtailing
or placing any other restriction on Dr. Lohrmann’s medical staff
privileges until the hearing on the motion for preliminary
injunction. The TRO also prohibited Memorial Hospital from
reporting its corrective action to the North Carolina Medical Board
(the Medical Board) until: (1) the entry of an order dismissing the
TRO or denying a preliminary injunction; or (2) the determination
of the case on its merits, whichever occurred first. By order
dated 24 April 2003, Judge Larry G. Ford (Judge Ford) allowed Dr.
Lohrmann’s motion for preliminary injunction and enjoined Memorial
Hospital from suspending Dr. Lohrmann’s medical staff privileges
and from reporting its action to the Medical Board. Dr. Lohrmann
filed a verified first amended complaint on 25 April 2003. Dr.
Lohrmann filed and served a motion for summary judgment on 18 March
2004 seeking to obtain permanent injunctive relief. Memorial
Hospital filed and served its own motion for summary judgment on 20
May 2004.
Judge Mark E. Klass (Judge Klass) denied Dr. Lohrmann’s motion
for summary judgment and entered summary judgment in favor of
Memorial Hospital on 21 June 2004. Judge Klass ordered that the
preliminary injunction entered by Judge Ford be dissolved, but
stayed dissolution until 1 July 2004 to allow Dr. Lohrmann time to
appeal to this Court. We entered an order on 1 July 2004 staying
Judge Klass’s order pending our ruling on Dr. Lohrmann’s petition
for writ of supersedeas. This Court then granted Dr. Lohrmann’s
petition on 13 July 2004 and stayed Judge Klass’s order pending the
outcome of the appeal.
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Dr. Lohrmann argues four grounds on which the trial court
erred in granting summary judgment for Memorial Hospital: (I)
Memorial Hospital’s bylaws constituted a contract between Dr.
Lohrmann and Memorial Hospital; (II) there were genuine issues of
material fact as to whether Memorial Hospital breached its bylaws;
(III) findings of fact in the preliminary injunction were supported
by the record and gave rise to genuine issues of material fact; and
(IV) Memorial Hospital’s efforts to suspend Dr. Lohrmann were in
violation of N.C. Gen. Stat. § 131E-85.
Summary judgment is appropriate if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2003). The burden is on the moving party to establish the lack of
a triable issue of fact. McKeel v. Armstrong, 96 N.C. App. 401,
406, 386 S.E.2d 60, 63 (1989). To meet its burden, the movant is
required to present a forecast of the evidence available at trial
that shows there is no material issue of fact concerning an
essential element of the non-movant’s claim and that the element
could not be proved by the non-movant through the presentation of
further evidence. Id. Once the movant has supported its motion
for summary judgment, the burden shifts to the other party “to
introduce evidence in opposition to the motion setting forth
‘specific facts showing that there is a genuine issue for trial.'”
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Metal Works, Inc. V Heritage, Inc., 43 N.C. App. 27, 31, 258 S.E.2d
77, 80 (1979). Appellate review of entry of summary judgment
requires a two-part analysis of whether, “(1) the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, show that there is no genuine issue
as to any material fact; and (2) the moving party is entitled to
judgment as a matter of law.” Charlotte Eastland Mall, LLC v. Sole
Survivor, Inc., 166 N.C. App. 659, 661, 608 S.E.2d 70, 72 (2004)
(citations and internal quotation marks omitted).
I.
Dr. Lohrmann argues that the trial court erred in granting
summary judgment to Memorial Hospital because Memorial Hospital’s
bylaws constituted a contract between Memorial Hospital and Dr.
Lohrmann. Dr. Lohrmann cites our Court’s decision in Virmani v.
Presbyterian Health Services Corp., 127 N.C. App. 71, 488 S.E.2d
284, disc. review denied, 347 N.C. 141, 492 S.E.2d 38-39 (1997), in
which we held that if a hospital’s offer to extend staff privileges
to a physician includes a condition that the physician adhere to
certain bylaws and the physician accepts the hospital’s offer, then
those bylaws become part of the contract between the hospital and
the physician. Virmani, 127 N.C. App. at 76-77, 488 S.E.2d at 288.
We adhere to the principle of law articulated in Virmani that a
claim for breach of contract may arise from an employer’s failure
to adhere to its bylaws. We find no genuine issue of material fact
as to whether Memorial Hospital’s bylaws constitute a contract
between Memorial Hospital and Dr. Lohrmann, and Memorial Hospital
does not dispute that such a contract exists.
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II.
Dr. Lohrmann argues that the trial court erred in finding no
genuine issue of material fact as to whether Memorial Hospital
breached its bylaws in suspending Dr. Lohrmann’s medical
privileges. For the reasons discussed below, we disagree.
On the issue of breach, Dr. Lohrmann first argues that
Memorial Hospital failed to comply with Article VI, Section 1(a) of
its medical staff bylaws regarding commencement of corrective
action:
(a) . . . [C]orrective action against [a]
physician or dentist may be requested by any
officer of the Medical Staff, by the Chief
Executive Officer, or by the Governing Body.
All requests for corrective action shall be in
writing, shall be made to the Executive
Committee and shall be supported by reference
to the specific activities or conduct which
constitute the grounds for the request.
Specifically, Dr. Lohrmann argues that (1) corrective action was
not requested by an officer of the medical staff, the CEO, or the
governing body; (2) the request for corrective action was not in
writing; (3) the request for corrective action was not directed to
the Executive Committee; and (4) the request for corrective action
was not supported by reference to the specific activities or
conduct which constituted the grounds for the request.
Dr. Lohrmann argues that the handwritten notes of Nurse
Jenkins and Nurse Roberts do not suffice as written requests for
corrective action with the degree of specificity required by the
medical staff bylaws. Morever, Dr. Lohrmann contends that neither
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Nurse Jenkins nor Nurse Roberts falls within the category of
individuals who may request corrective action. However, it appears
from the record that the CEO was the person who requested that
corrective action be taken against Dr. Lohrmann. The CEO, with the
written complaints from Nurse Jenkins and Nurse Roberts in hand,
addressed the Executive Committee with his concerns on 22 April
2002. These written complaints referred to the specific activities
or conduct which constituted the grounds for the request. Under
these facts, Memorial Hospital substantially complied with its
bylaw procedures for requesting corrective action when its CEO
directed a request for corrective action to the Executive
Committee. The CEO’s request, though not in writing, was supported
by the written complaints of Nurse Jenkins and Nurse Roberts that
referred to the specific activities or conduct which constituted
the grounds for the request.
Dr. Lohrmann next argues that Memorial Hospital failed to
comply with its corporate bylaw provision that requires an affected
medical staff practitioner to be heard at each step of the
disciplinary process. The corporate bylaw Dr. Lohrmann cites is
Article VII, Section 3, which provides: “The Medical Staff Bylaws
shall include: (a) A mechanism for review of adverse Medical Staff
decisions, including the right of the affected practitioner to be
heard at each step of the process when requested by the affected
practitioner[.]” Dr. Lohrmann argues that Memorial Hospital
breached this bylaw provision by failing to provide Dr. Lohrmann
with copies of the nurses’ complaints and by failing to give Dr.
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Lohrmann notice of the 22 April 2002 Executive Committee meeting at
which the complaints were considered. Dr. Lohrmann asserts that he
was unaware that his care of Ms. S and Mr. W was the subject of the
22 April 2002 meeting, and therefore he had no opportunity to be
heard at each step of the process.
The corporate bylaw provision that Dr. Lohrmann cites,
however, does not apply to the process of investigating physician
conduct. Rather, upon careful reading, the “process” to which the
corporate bylaw provision refers is the process of formal hearing
and appellate review subsequent to an adverse Executive Committee
recommendation. The Executive Committee made no adverse
recommendation until after the 22 April 2002 meeting. Therefore,
any right to be heard guaranteed by the corporate bylaw that Dr.
Lohrmann cites did not apply prior to that meeting.
Pursuant to the corporate bylaw cited, Memorial Hospital’s
medical staff bylaws provide that after an adverse medical staff
recommendation, the medical staff practitioner is entitled to
certain procedural rights. The practitioner is entitled to:
prompt written notice stating the reasons for an adverse
recommendation by the Executive Committee; a hearing before a
medical staff panel appointed by the president of the medical
staff; a notice of hearing which shall again state the reasons for
the adverse recommendation; the right to be accompanied and/or
represented by counsel at the hearing; the right to submit
memoranda concerning any issue of procedure or of fact; and the
right to call and examine witnesses, to introduce written evidence,
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to cross-examine witnesses, to challenge witnesses, and to rebut
any evidence. All of the foregoing procedures were complied with
in Dr. Lohrmann’s case. He received written notice of the
Executive Committee’s recommendation in a letter from the CEO dated
24 September 2002, the day after the Executive Committee meeting.
This letter detailed the reasons for the Executive Committee’s
recommendation. Dr. Lohrmann made a timely request for a hearing
before the panel. At the panel hearing on 13 and 14 January 2003,
Dr. Lohrmann was present and represented by counsel who called,
examined and cross-examined witnesses.
Dr. Lohrmann also argues that a hearing by a panel, even if
procedurally correct, does not cure Memorial Hospital’s breach of
bylaws in the prior investigatory process. Again, he cites
Virmani. The facts of Virmani, however, are distinguishable from
those of the present case. In Virmani, the physician was not
allowed to participate at all in the investigatory peer review
process, in violation of the hospital’s bylaws which specified that
a physician under investigation be provided an opportunity to
respond to written queries from the investigatory peer review
committee. Virmani, 127 N.C. App. at 71, 488 S.E.2d at 286.
Because the hospital omitted a required step in its process, our
Court in Virmani found that the physician was entitled to a new
peer review investigation to be conducted in accordance with the
hospital’s bylaws. Id. at 78-79, 488 S.E.2d at 289. In the case
before us, none of the investigatory steps provided by Memorial
Hospital’s medical staff bylaws were omitted. As discussed above,
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Memorial Hospital substantially complied with its medical staff
bylaws concerning the request for corrective action. The process
then continued in accordance with further bylaw provisions.
Pursuant to Article VI, sections 1(b) and (c) of the medical staff
bylaws, the investigating committee was formed when it became
evident that the corrective action could be the suspension of Dr.
Lohrmann’s privileges, and Dr. Lohrmann was present for an
interview with the investigating committee. In accordance with
Article VI, Section 1(d), Dr. Lohrmann appeared before the
Executive Committee prior to its taking action on the request and
the investigating committee report. Unlike Virmani, there is no
investigatory procedure left undone that could alter the outcome of
another peer review upon remand in this case.
On the issue of breach of contract, Dr. Lohrmann next argues
that he was unable to fully and adequately defend himself at the
January 2003 hearing because Memorial Hospital failed to inform him
of all the charges he faced. Specifically, Dr. Lohrmann argues
that he did not receive notice of any concern that his conduct
caused “disruption,” a term that first appeared in the panel’s
report of 18 February 2003. Dr. Lohrmann contends that in not
specifying that he was charged with being disruptive, Memorial
Hospital breached its bylaw provision requiring notice of specific
activities or conduct that constitute the basis for a suspension.
Dr. Lohrmann argues that in preparing his defense for the January
2003 hearing, he relied solely on the 18 September 2002 letter from
the CEO, and prepared to defend charges of violating patient
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rights, specifically issues of medical ethics, advanced directives,
and the right to die.
Although the letter of 18 September 2002 used the phrase
“patients’ rights,” the letter also discussed issues of
communication with family and physicians. Moreover, the 24
September 2002 letter from the CEO further particularized the
issues pertaining to Dr. Lohrmann’s conduct. The 24 September 2002
letter served as Dr. Lohrmann’s notice of the Executive Committee’s
adverse recommendation of the previous day. This letter described
in detail both the Executive Committee’s reasons for voting to
suspend Dr. Lohrmann’s medical privileges and the charges that
would be considered at the hearing, namely: (1) Dr. Lohrmann’s
failure to effectively coordinate with involved family members and
physicians about the care of Ms. S, (2) Dr. Lohrmann’s failure to
obtain the concurrence of Mr. W’s primary physician before changing
the code status, and (3) Dr. Lohrmann’s failure to enter an
appropriate order to effect the change.
The panel, while noting that it “[took] exception to the
Executive Committee’s conclusion that patients’ rights were
violated,” nevertheless concluded that “principles of medical
ethics ha[d] been brought into question by Dr. L[ohrmann]’s
conduct.” The panel found that Dr. Lohrmann had a “disturbing
disregard for the validity of patients’ wishes as expressed through
advanced directives, family contribution and input from other
health care workers.” Further, Dr. Lohrmann was “unwilling or
unable to work with other health care personnel” which led to
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“confusion and disruption of standard medical care.” It was “in
regards to this disruption” that the panel focused its concerns.
Whether Dr. Lohrmann’s conduct was labeled as a “disruption,”
“failure to effectively coordinate,” “disturbing disregard for the
validity of patients’ wishes” or any of the other terms used by Dr.
Falk, the investigating committee, the Executive Committee, or the
panel, the issues concerning Dr. Lohrmann’s manner of care of Ms.
S and Mr. W were the same throughout the corrective action
proceedings. As early as 26 August 2002, Dr. Lohrmann received
notice that the investigating committee would be reviewing his
conduct in caring for Ms. S and Mr. W. At Dr. Lohrmann’s meeting
with the investigating committee on 20 September 2002, Dr. Lohrmann
was questioned about communication with family members and
physicians, as well as his entry of a code order that might confuse
nurses and physicians. While the CEO’s letter of 18 September 2002
used the phrase “patients’ rights,” it also discussed issues of
communication with family and physicians. At the very latest, the
CEO’s detailed letter of 24 September 2002 gave sufficient notice
to afford Dr. Lohrmann an adequate opportunity to prepare a defense
for the hearing scheduled for January 2003. We find that Dr.
Lohrmann had sufficient notice of the charges against him to be
able to present facts and defend his conduct at the January 2003
hearing.
III.
Dr. Lohrmann argues that the trial court erred in granting
summary judgment for Memorial Hospital because the findings of fact
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set forth in the preliminary injunction dated 24 April 2003 gave
rise to genuine issues of material fact. Dr. Lohrmann acknowledges
that the findings in the preliminary injunction proceeding would
not be binding at a subsequent trial on the merits, but he argues
that they would support a judgment for plaintiff if uncontradicted.
We find this argument to be without merit.
It is well settled that findings of fact made during a
preliminary injunction proceeding are not binding upon a court at
a trial on the merits. Huggins v. Wake County Board of Education,
272 N.C. 33, 40-41, 157 S.E.2d 703, 708 (1967). “Indeed, these
findings and proceedings are not proper matters for the
consideration of the court or jury in passing on the issues
determinable at the final hearing.” Huskins v. Yancey Hospital,
Inc., 238 N.C. 357, 362, 78 S.E.2d 116, 121 (1953). The purpose
of an interlocutory injunction is to preserve the status quo of the
subject matter of the suit until a trial can be held. Id. at 360,
78 S.E.2d at 119. The burden of proof required to support a
preliminary injunction is less than that required for a motion for
summary judgment, and the evidence is less complete. See Schultz
& Assoc. v. Ingram, 38 N.C. App. 422, 248 S.E.2d 345 (1978).
Accordingly, the trial court did not err in determining there was
no genuine issue of material fact.
IV.
Dr. Lohrmann next argues that Memorial Hospital’s corrective
action against him was in violation of N.C. Gen. Stat. § 131E-85
(2003), which provides in part:
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(a) The granting or denial of privileges to
practice in hospitals to physicians . . .
and the scope and delineation of such
privileges shall be determined by the
governing body of the hospital on a non-
d i s c r i m i n a t o r y
b a s i s .
S u c h
determinations shall be based upon the
applicant’s
education,
training,
experience, demonstrated competence and
ability, and judgment and character of
the applicant, and the reasonable
objectives and regulations of the
hospital, including, but not limited to
appropriate utilization of hospital
facilities, in which privileges are
sought.
. . . .
(c) In addition to the granting or denial of
privileges, the governing body of each
hospital may suspend, revoke, or modify
privileges.
(d) All applicants or individuals who have
privileges shall comply with all
applicable medical staff bylaws, rules
and regulations, including the policies
a n d
t h e
g o v e r n i n g
p r o c e d u r e s
qualifications of applicants and the
scope and delineation of privileges.
Dr. Lohrmann argues that Memorial Hospital had no grounds under
N.C. Gen. Stat. § 131E-85 for suspending his privileges. He
contends that Memorial Hospital sought to suspend his privileges
solely on the basis of violating patients’ rights, but that no such
rights were violated. Dr. Lohrmann contends that he complied with
the wishes of his patients and with North Carolina law regarding
living wills and the right of a patient to control decisions
relating to her or his medical care. Therefore, Dr. Lohrmann
argues that Memorial Hospital’s attempt to discipline him for
following the law was in violation of stated North Carolina public
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policy, and as such violated N.C. Gen. Stat. § 131E-85.
Dr. Lohrmann bases this argument on the allegation that
Memorial Hospital sought to suspend his privileges solely on the
basis of violating patients’ rights. As discussed above, other
factors pertaining to Dr. Lohrmann’s conduct were clearly at issue
throughout the corrective action proceedings. Furthermore, N.C.
Gen. Stat. § 131E-85 provides that a hospital may take into account
the judgment and character of a physician, as well as the
reasonable objectives and regulations of the hospital, in
suspending a physician’s privileges.
Alternatively, Dr. Lohrmann argues that Memorial Hospital’s
decision to suspend him was arbitrary and capricious, based on
irrelevant consideration and not upon the reasonable objectives and
regulations of Memorial Hospital. By statute, regulation, and case
law, the authority to make corrective action decisions rests with
the governing body of a hospital. See N.C. Gen. Stat. § 131E-85;
10A NCAC 13B .3701, .3702, .3705 (June 2004); Cameron v. New
Hanover Memorial Hospital, 58 N.C. App. 414, 293 S.E.2d 901 (1982).
It is not the role of this Court to substitute our judgment for
that of the hospital governing body, which has the responsibility
of providing a competent staff of physicians under N.C. Gen. Stat.
§ 131E-85. See Claycomb v. HCA-Raleigh Community Hosp., 76 N.C.
App. 382, 333 S.E.2d 333 (1985). As long as the governing body’s
suspension of privileges is “‘administered with fairness, geared by
a rationale compatible with hospital responsibility and
unencumbered with irrelevant considerations, [this] [C]ourt should
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not interfere.'” Cameron, 58 N.C. App. at 449, 293 S.E.2d at 922
(quoting Sosa v. Board of Managers of Val Verde Memorial Hospital,
437 F.2d 173, 177 (5th Cir. 1971). We find that Memorial
Hospital’s governing body met this standard.
First, our discussion of Memorial Hospital’s compliance with
its corporate and medical staff bylaws illustrates that the
governing body’s suspension of Dr. Lohrmann was administered with
fairness. Next, the governing body’s decision to suspend Dr.
Lohrmann was geared by a rationale compatible with hospital
responsibilities, namely to ensure full and adequate communication
and cooperation with patients, families, physicians, and other
medical personnel. Finally, Dr. Lohrmann makes no argument about
irrelevant considerations.
We note that peer review proceedings such as Dr. Lohrmann’s
are conducted by committees of physicians and lay persons. As
quasi-legal proceedings, such peer reviews are less formal than
court proceedings and have been accorded a degree of deference by
our Court. This Court has held that the evaluation of the
performance of physicians “‘is best left to the specialized
expertise of their peers, subject only to limited judicial
surveillance.'” Id. To proceed otherwise would inhibit the vital
role of the peer review process. Members of Dr. Lohrmann’s peer
committee and panel were specially situated to evaluate whether Dr.
Lohrmann’s conduct met the standard of care set by Memorial
Hospital. The decision-making of the governing body relied on the
findings of Dr. Lohrmann’s peers and was fair and reasonable.
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In light of the evidence and discussion above, we hold that
there is no genuine issue of material fact as to whether Memorial
Hospital breached its contractual bylaws with Dr. Lohrmann, that
the findings of fact from the preliminary injunction were not
binding on the trial court, and that Memorial Hospital’s decision
under N.C. Gen. Stat. § 131E-85 was proper. The trial court did
not err in granting summary judgment in favor of Memorial Hospital.
Affirmed.
Judges HUNTER and LEVINSON concur.