Ivey v. Galen Hospitals of Texas

S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-97-00435-CV
............................
JACK L. IVEY, M.D., Appellant
V.
GALEN HOSPITALS OF TEXAS, INC., D/B/A MEDICAL CITY DALLAS HOSPITAL,
DONALD J. CONEY, M.D., KATHRYN K. WALDREP, M.D.,
WINFRED PARNELL, M.D., AND DONALD L. STEWART, Appellees
.............................................................
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 94-07108-K
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OPINION
Before Justices Lagarde, Moseley, and Bridges
Opinion By Justice Moseley

Appellant Jack L. Ivey, M.D., asserted claims for conspiracy in restraint of trade in violation of the Texas Free Enterprise and Antitrust Act of 1983, FN:1 civil conspiracy to tortiously interfere with contractual relationships, and breach of implied contract. The trial court entered summary judgment against Dr. Ivey on all claims, without specifying the ground or grounds relied on for its ruling. In a single point of error, Dr. Ivey contends the trial court erred in granting summary judgment. FN:2 For the reasons set forth below, we affirm the judgment of the trial court.

IDENTITY OF PARTIES

As a preliminary matter, we first address the identity of the parties before the court. The record is inconsistent concerning the identity of the hospital entity that is a party in this case. Dr. Ivey's original petition named as a defendant Humana Hospital-Medical City Dallas (“Humana”). In response, an answer and counterclaim was filed by Galen Hospitals of Texas, Inc. d/b/a Medical City Dallas Hospital (“Hospital”). Affidavits filed in conjunction with the motions for summary judgment filed below refer to the Hospital, Humana, and (generically) to “Medical City.” The documentary evidence attached to the motions and affidavits refers to Humana, not the Hospital. The parties do not provide an explanation for these inconsistencies, and the Court's inspection of the record does not reveal such an explanation. FN:3
Nevertheless, Dr. Ivey's live pleadings as of the summary judgment name the Hospital as a party, not Humana; the judgment recites that Dr. Ivey should take nothing by way of his claims against the Hospital; and the Hospital is identified as an appellee in this case and has filed a brief. We conclude that the only hospital entity in this case was and is the Hospital. Also, for purposes of this appeal we assume without deciding that the Hospital is answerable at law for all actions alleged in this case to have been taken by it or by Humana; for clarity all future references to “the Hospital” refer to either entity. We also address any uncertainty as to whether Donald J. Coney, M.D., Kathryn K. Waldrep, M.D., Winfred Parnell, M.D., and Donald L. Stewart are parties to this appeal. Dr. Ivey's brief clearly states that he “appeals the second summary judgment in favor of the hospital,” and Dr. Ivey phrases most (although not all) of his arguments in terms of the Hospital's failure to meet its summary judgment burden. However, these individual defendants were, along with the Hospital, parties below. They all joined in a single motion for summary judgment that the trial court granted, disposing of the case. The judgment below provided that Dr. Ivey take nothing by way of his claims against the Hospital, Stewart, and Drs. Coney, Waldrep, and Parnell; and Dr. Ivey's appeal bond recites that he wishes to appeal “[f]rom this judgment.” The prayer in Dr. Ivey's brief requests this Court to “reverse the summary judgment of the trial court and remand this case for trial on the merits.” Further, the appellees' brief identifies the Hospital; Stewart; and Drs. Coney, Waldrep, and Parnell as the appellees, and recites that the brief was filed on their behalf. Thus, we conclude that Stewart and Drs. Coney, Waldrep, and Parnell are parties to this appeal. Except for Dr. Ivey's arguments concerning his breach of implied contract claim (which he asserted only against the Hospital), we construe Dr. Ivey's arguments as contending that the trial court erred in granting summary judgment in favor of all appellees.

STANDARD OF REVIEW

Appellees moved for summary judgment pursuant to Texas Rule of Civil Procedure 166a(c). The standard of review for such a summary judgment is well established. The movant must show there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. FN:4 A defendant who conclusively negates at least one essential element of a plaintiff's claim or who conclusively establishes all elements of an affirmative defense is entitled to summary judgment. FN:5 If a movant presents evidence that, if uncontroverted, establishes his or her right to summary judgment, the burden shifts to the non-moving party to present evidence that would raise a fact issue precluding summary judgment. FN:6 We construe all evidence in favor of the nonmovant and resolve all reasonable inferences and doubts in his favor. FN:7 When the trial court grants summary judgment without specifying the ground or grounds on which it acted, as it did here, we affirm summary judgment if any theory advanced in support of the summary judgment is meritorious. FN:8

FACTUAL BACKGROUND

        With the above standard of review in mind, the record shows Dr. Ivey is a obstetrician/gynecologist. From 1974 until 1993, he was a member of the Hospital's medical staff with privileges to perform gynecological surgery. Drs. Coney, Waldrep, and Parnell were also obstetricians/gynecologists and members of the Hospital's medical staff; Stewart was a former president and chief executive officer of the Hospital.
        In 1984, Dr. Ivey began performing laparoscopies, a minimally-invasive form of surgery. In 1989, Dr. Ivey began performing a form of laparoscopic surgery called “pelviscopy,” which utilized a laparoscope and a minimal incision. Compared to then-normal surgical techniques, pelviscopy was less expensive, caused less pain, required a shorter recovery time, and could be performed as day surgery. Through 1989, Dr. Ivey and one other physician performed most of the laparoscopies done at the Hospital, and Dr. Ivey was the only surgeon who had applied for pelviscopy privileges. However, by 1991, thirty-eight (38) obstetrician/gynecologists on the Hospital's active staff had operative laparoscopy and pelviscopy privileges. By 1996, that number had grown to fifty-nine (59).
        Some time in 1989 or 1990, Drs. Waldrep, Parnell, and Coney requested an investigation of Dr. Ivey's laparoscopic and pelviscopic procedures. As a result, an ad hoc investigation committee recommended that all of Dr. Ivey's laparoscopic and pelviscopic surgeries for six months be proctored by other physicians. Pursuant to the Hospital's bylaws, the Board of Trustees approved the recommendation in July 1990. Dr. Ivey agreed to this recommendation and, after some delay, the proctoring requirement was instituted for the period of May 16, 1991 to November 16, 1991.
        On December 17, 1991, the Hospital (acting through Stewart) wrote Dr. Ivey and informed him that: (1) proctoring would remain in place for all of Dr. Ivey's laparoscopic and pelviscopic cases; (2) the proctoring would be done by Drs. Parnell, Coney, Waldrep, and four other active staff physicians; and (3) “[an] ... evaluation report will be generated ... following proctoring of 14 difficult laparoscopic/pelviscopic cases; 2 by each designated proctor.” Dr. Ivey disagreed with this decision, characterizing his response as follows: “I refused this educational experience as was my right to do.” Thereafter, according to the Hospital's admission records for the period between January 1, 1992 and September 1, 1994, Dr. Ivey did not admit patients to the Hospital for laparoscopic or pelviscopic surgeries.
        The Hospital's bylaws provided that the Hospital would approve staff privileges for two-year periods. The Hospital regularly renewed Dr. Ivey's staff privileges at regular, two-year intervals, and did so again (subject to the first proctoring requirement) in March 1991. On February 1, 1993, a little over a year after the Hospital instituted the second proctoring requirement, Stewart sent Dr. Ivey a letter that stated, in part,
    [O]n the recommendation of the Executive Committee, the Board of Trustees at their meeting of January 25, 1993 has approved your reappointment to the Active Medical Staff, in the Department of Surgery, Section of Obstetrics & Gynecology for a one (1) year period in order to fulfill the proctoring requirements of fourteen cases by specified proctors (2 cases each proctor). The Board noted that in the past year you have not taken advantage of the educational opportunity offered by the Medical Staff by providing proctoring for laparoscopic and pelviscopic cases. It was recommended by the Board of Trustees that we extend this stipulation in granting you these privileges until proctoring has been fulfilled.

PROCEDURAL BACKGROUND

        Dr. Ivey filed his original petition on July 8, 1994 against the Hospital, Stewart, and Drs. Coney, Waldrep, and Parnell (“appellees”), as well as two additional former Hospital employees (collectively referred to, including appellees, as “the defendants”). The defendants answered and the Hospital filed a counterclaim. Thereafter the defendants moved for summary judgment against Dr. Ivey's claims based on limitations. The trial court granted the motion and, after the Hospital nonsuited its counterclaim, entered a final judgment. However, Dr. Ivey filed a motion for new trial, which the trial court granted.
        Dr. Ivey then filed a second amended petition, which is not in the record. The defendants again moved for summary judgment on all of Dr. Ivey's claims. Dr. Ivey responded to this motion in part by filing a third amended petition. (This pleading did not assert any claims against the other former Hospital employees, thereby dismissing them from the suit. FN:9 This left appellees as the remaining parties defendant.) In this petition, Dr. Ivey alleged claims against appellees for conspiracy in restraint of trade, civil conspiracy to tortiously interfere with contractual and prospective contractual relationships, and breach of implied contract.
        The trial court heard appellees' motion for summary judgment on June 3, 1996. After the court heard the motion for summary judgment, but before it had ruled, Dr. Ivey filed his fourth amended petition, which generally reasserted the claims set forth in Dr. Ivey's prior pleading. On December 16, 1996, the trial court granted partial summary judgment in favor of appellees on all of Dr. Ivey's claims, and stated that the only claim left was a counterclaim asserted by the Hospital. The order recited that the trial court had “consider[ed] the pleadings, the summary judgment evidence ... and the arguments of counsel.”
        Appellees then filed an answer to Dr. Ivey's fourth amended petition, in which the Hospital also asserted a counterclaim for attorney's fees. Several weeks later the Hospital moved to nonsuit its counterclaim. The trial court granted the motion and entered a final judgment against Dr. Ivey on all his causes of action. Dr. Ivey then perfected his appeal.

ANTITRUST CLAIM

        Dr. Ivey asserted appellees' actions violated section 15.05(a) of the Texas Free Enterprise and Antitrust Act of 1983 (“the Act”), which provides that “(e)very contract, combination, or conspiracy in restraint of trade or commerce is unlawful.” FN:10 Appellees moved for summary judgment on Dr. Ivey's antitrust claim on the grounds that the undisputed evidence conclusively negated two elements of this claim. First, they asserted that the undisputed summary judgment evidence demonstrated that their alleged actions did not cause an “antitrust injury” to Dr. Ivey or any adverse effect on competition. Second, they asserted the undisputed summary judgment evidence negated the existence of a concerted action by appellees in violation of section 15.05 of the Act. The basis for this argument was that the Hospital alone, acting through its governing Board of Trustees, had final decision-making authority over peer review matters, including Dr. Ivey's staff privileges or proctoring requirements. Because the Hospital made those decisions alone, appellees argued it was legally impossible for the Hospital to have entered into a contract, combination, or conspiracy with others regarding those matters. The trial court granted summary judgment on Dr. Ivey's antitrust claim without specifying the reasons for its action.
        In support of his contention that the trial court erred in granting a summary judgment on his antitrust claim, Dr. Ivey makes three arguments. First, he argues appellees' motion did not address all of his antitrust causes of action. Second, he argues the evidence did not conclusively disprove the existence of antitrust injury. Third, he argues the evidence did not conclusively disprove the Hospital's ability to act in conjunction with the other appellees in violation of section 15.05(a) of the Act.
Scope of Appellees' Motion
        Dr. Ivey's first argument is that he filed an amended pleading (his third amended petition) after appellees filed their motion for summary judgment, in which he added an allegation that appellees' actions constituted per se violations of the Act. Dr. Ivey contends this cause of action is in addition to and different from his separate allegation that appellees' actions constituted a restraint of trade that had “an unreasonably adverse effect on competition.” Thus, Dr. Ivey argues he added a second antitrust cause of action after appellees filed the motion for summary judgment on which the trial court acted, and thus the motion could not have addressed Dr. Ivey's additional, “per se” cause of action.
        Although Dr. Ivey makes his argument on the basis of his third amended petition, we consider Dr. Ivey's argument in the context of his fourth amended petition, which was filed after the summary judgment hearing but before the trial court ruled. Although the record does not affirmatively reflect that Dr. Ivey obtained leave of the court to file his fourth amended petition, FN:11 we presume leave of court was granted. FN:12 (In any event, Dr. Ivey's fourth amended petition also contains both of the allegations Dr. Ivey contends constitute two separate antitrust causes of action, and appears identical to the third amended petition in all respects material to the issues presented by this appeal.) Thus, we look to Dr. Ivey's fourth amended petition to initially determine whether he asserted one or two antitrust causes of action.
        Dr. Ivey's fourth amended petition contained the following:

XXII.
SECOND CAUSE OF ACTION: CONSPIRACY IN RESTRAINT OF TRADE

The Defendants Medical City, Coney, Waldrep, and Parnell have conspired to restrain trade or commerce with respect to Dr. Ivey's ability to perform laparoscopic and pelviscopic surgery at Medical City Hospital, in violation of [section 15.05 of the Act]. The actions taken by Defendants as alleged in this cause of action were covert, improper, and an attempt by the Defendant doctors to restrain free and open competition among gynecological surgeons performing laparoscopies and pelviscopies at Medical City Hospital and its immediate market area.

XXIII.

The conspiracy between Defendants Coney, Waldrep and Parnell was a horizontal conspiracy among direct competitors to exclude a competitor with cost advantages from their relevant market, which is a per se violation of the antitrust laws. These defendants (and their associates) had as their goal a pecuniary gain achieved by diminishing the output of a direct competitor for laparoscopic and pelviscopic surgeries in their area.

XXIV.

            Alternatively, the conspiracy between all the defendants is a restraint on trade and has an unreasonably adverse effect on competition for laparoscopic and pelviscopic surgeries in the relevant geographic market of Medical City Hospital. The conspiracy in restraint of trade entered into and conducted by the Defendants has proximately caused damage to Dr. Ivey and will continue to damage Dr. Ivey in the future in excess of the minimum jurisdictional limits of this Court.
        Before analyzing these allegations to determine whether they set forth two separate antitrust causes of action, we must first consider the nature of the conduct violative of section 15.05(a) of the Act. That section is comparable to, and indeed was taken from, section 1 of the Sherman Antitrust Act. FN:13 Thus, to the extent construction of the Sherman Act is consistent with maintaining and promoting economic competition in trade and commerce within Texas, we construe section 15.05(a) of the Act consistent with the federal courts' construction of the analogous Sherman Act provision. FN:14         The courts have long held that, notwithstanding the broad prohibitions set forth in both section 15.05(a) of the Act and section 1 of the Sherman Act, each statute only condemns unreasonable restraints of trade. FN:15 Both federal and Texas courts have ordinarily utilized two different analytical methods to determine whether an agreement unreasonably restrains competition. First, the courts recognize that the competitive effects of most agreements “can only be evaluated by analyzing the facts peculiar to the business, the history of the restraint, and the reasons why it was imposed.” This fact-specific, individual case determination is referred to as analysis under the “rule of reason.” FN:16 However, the courts also recognize that some agreements have such an “inherently pernicious effect upon competition” that they “are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” FN:17 These agreements are considered by the courts to be per se unreasonable and therefore violative of section 15.05(a) of the Act and section 1 of the Sherman Act, without the necessity of conducting a fact-intensive analysis of their effects on competition. FN:18
        Dr. Ivey's fourth amended petition asserts a violation of section 15.05 of the Act arising from one set of alleged facts: that appellees conspired to unreasonably restrain trade or commerce with respect to Dr. Ivey's ability to perform laparoscopic and pelviscopic surgery at the Hospital. Under either the per se rule or the rule of reason, the central issue presented by Dr. Ivey's allegations remains the same _ whether the complained-of contract, combination, or conspiracy unreasonably restrains competition. This is the gravamen of a violation of section 15.05, regardless of which analytical method the court should utilize to determine the reasonableness of the restraint under attack.
        Thus, we conclude Dr. Ivey asserted only one antitrust cause of action in his fourth amended petition: that appellees violated section 15.05 of the Act by conspiring to restrain trade or commerce with respect to Dr. Ivey's ability to perform laparoscopic and pelviscopic surgery at the Hospital. Because this antitrust cause of action was addressed in appellees' motion, Dr. Ivey's first argument fails.
Negation of Antitrust Injury
        For a restraint to unreasonably affect competition, it must necessarily result in an antitrust injury, that is, it must have an anticompetitive or adverse effect on a relevant market. FN:19 One of the grounds asserted by appellees in support of their motion for summary judgment on Dr. Ivey's antitrust claim was that undisputed summary judgment evidence negated the existence of any “antitrust injury” to Dr. Ivey or any adverse effect on competition. Dr. Ivey contends the summary judgment evidence did not conclusively negate the existence of “anticompetitive effects” resulting from appellees' alleged conduct. His sole argument in support of this contention is that appellees made no attempt to establish the relevant service and geographic market in which Dr. Ivey competed, and in which appellees' actions should be judged. (He argues that appellees' motion assumed, without summary judgment proof, that the relevant market was the market for “all obstetrical and gynecological services in Dallas County, Texas.”) Without evidence defining the relevant service and geographic market, Dr. Ivey contends appellees could not conclusively disprove antitrust injury. On the facts of this case, we disagree.
        Appellees presented evidence that, in 1991, thirty-eight (38) obstetrician/gynecologists on the Hospital's active medical staff had operative laparoscopy/pelviscopy privileges; by 1996, that number had grown to fifty-nine (59). This evidence, uncontroverted and standing alone, was sufficient to negate any effect on competition resulting from Dr. Ivey's cessation from performing laparoscopies and pelviscopies at the Hospital in late 1991_ early 1992. Thus, the burden shifted to Dr. Ivey to present summary judgment proof raising a fact issue regarding the existence of antitrust injury. FN:20 Because Dr. Ivey presented no such evidence, the trial court properly entered summary judgment in favor of appellees on Dr. Ivey's antitrust claim.         In the context of these facts, we reject Dr. Ivey's argument that summary judgment was improper because appellees failed to present summary judgment proof establishing the relevant service and geographic market. Regardless of how the relevant market might ultimately be defined, at the very least it consisted of the provision of laparoscopic and pelviscopic surgical services at the Hospital. Appellees's evidence negated any injury to competition in this hypothetical market resulting from their alleged actions. Evidence expanding the relevant market beyond the provision of laparoscopic and pelviscopic services, or expanding the relevant geographic market beyond the Hospital, would necessarily reduce, not increase, the effects on competition flowing from Dr. Ivey's exit from the market as a result of appellees' alleged anticompetitive proctoring activities. Thus, appellees' failure to conclusively prove the ultimate boundaries of the relevant product and geographic market in which Dr. Ivey competed is not fatal to their summary judgment motion.
        Similarly, we fail to see how the Hospital could have inflicted antitrust injury by renewing Dr. Ivey's staff privileges in February 1993. The Hospital's renewal of Dr. Ivey's privileges, albeit for one year instead of two, had no effect on competition in any market. Dr. Ivey's ability to provide laparoscopic and pelviscopic services at the Hospital was the same after the Hospital renewed his privileges in 1993 as it was before. Moreover, it is undisputed Dr. Ivey stopped performing laparoscopies and pelviscopies at the Hospital in January 1992. Thus, however one might define the market that included the provision of laparoscopic and pelviscopic services at the Hospital, Dr. Ivey had exited that market in late 1991 or early 1992 _ well before the Hospital renewed his staff privileges in February 1993. Thus, the Hospital's renewal of Dr. Ivey's staff privileges could have had no effect on the market in 1993.
Conclusion
        The summary judgment evidence conclusively negated the existence of antitrust injury resulting from appellees' alleged conspiracy in restraint of trade. Thus, the trial court properly granted summary judgment on Dr. Ivey's antitrust claim under the Act. As a result, we need not address Dr. Ivey's argument that appellees did not conclusively disprove that they were capable of entering into a “contract, combination, or conspiracy” within the meaning of section 15.05(a) of the Act. FN:21

CIVIL CONSPIRACY

        In his fourth amended petition, Dr. Ivey asserted a cause of action for civil conspiracy to tortiously interfere with contractual and prospective contractual relationships. He alleged appellees “conspired to tortiously interfere with the doctor/patient relationships of [Dr. Ivey]” by “arbitrarily restricting [his] ability to perform laparoscopic and pelviscopic surgeries at [the Hospital].” Further, Dr. Ivey alleged that the restrictions were intended to benefit Drs. Coney, Waldrep, and Parnell financially, and were not for his educational benefit or his patients' safety, and that “the conspiracy had as its goal harm to, or the elimination of, a competitor from the market for laparoscopic and pelviscopic surgeries at [the Hospital].” Dr. Ivey alleged that he “effectively los[t] his ability to perform laparoscopic and pelviscopic surgeries [at the Hospital], ... resulting in a substantial loss of income.” Dr. Ivey asserted that an act in furtherance of this conspiracy was the 1993 letter that “limit[ed] the extension of [his] surgical privileges to a single year in conjunction with the second and unreasonable proctoring requirement.”
        Appellees moved for summary judgment on the ground that Dr. Ivey's claim for civil conspiracy was barred by limitations. They argued the only act occurring within two years of the filing of Dr. Ivey's original petition was the February 1, 1993 letter reappointing him as a member of the Hospital's staff. They contend this letter was not an overt act in furtherance of a conspiracy because the letter maintained the status quo and did not result in any damages that had not already accrued. The trial court granted summary judgment on Dr. Ivey's civil conspiracy claim. On appeal, Dr. Ivey argues the trial court improperly granted summary judgment on his civil conspiracy claim because it was not time barred.
        A civil conspiracy is “a combination of two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by an unlawful means.” FN:22 An element of this tort is “an overt act that results in damage to the plaintiff.” FN:23 The two-year statute of limitations applies to civil conspiracy and tortious interference with contractual relationships claims. FN:24 However, a suit for conspiracy is not time barred when an overt act in furtherance of the conspiracy occurs within two years of the date the suit is filed. FN:25
        Dr. Ivey filed his original petition on July 18, 1994. The only action within two years of that date that Dr. Ivey contended was in furtherance of the alleged conspiracy was the Hospital's February 1993 letter renewing his staff privileges for a one-year period. Dr. Ivey argues that the February 1993 letter reinforced the restrictions on his surgical privileges and was therefore an act in furtherance of the conspiracy. We disagree.
        By approving Dr. Ivey's reappointment to the medical staff “for a one (1) year period in order to fulfill the proctoring requirements of fourteen cases,” the Hospital did not impose any additional restrictions or limits on Dr. Ivey's surgical privileges. As noted above, Dr. Ivey's ability to provide laparoscopic and pelviscopic services at the Hospital was the same after the Hospital renewed his privileges in 1993 as it was before. Also as noted above, Dr. Ivey stopped admitting patients into the Hospital for laparoscopic or pelviscopic surgeries in January 1992. Although the February 1993 letter maintained the previously imposed proctoring requirements, it was not an overt act in furtherance of the alleged conspiracy such as to render Dr. Ivey's July 1994 petition timely under the two-year statute of limitations. FN:26 Thus, the trial court properly granted summary judgment on Dr. Ivey's civil conspiracy claim on the ground that it was barred by limitations.

BREACH OF IMPLIED CONTRACT

        In his fourth amended petition, Dr. Ivey asserted a claim for breach of implied contract against the Hospital. He asserted that the February 1993 letter renewing his staff privileges for one year instead of two was contrary to a long-standing course of dealing between [the Hospital] and its staff, and was also contrary to [the Hospital's] own by-laws, which provided for two-year reappointments.” Referring to a provision in the medical staff bylaws that “[r]eappointment ... shall be performed every two (2) years,” Dr. Ivey alleged that the Hospital's acts and conduct, over the course of Dr. Ivey's twenty-year practice at the Hospital, led to “an implied understanding or mutual intention to grant privileges to physicians on a two year basis.” Further, Dr. Ivey alleged that “a course of dealing between the parties ... should amount to a contract implied in law,” and that the “course of dealing was reflected in the hospital's bylaws, and was relied on by Dr. Ivey ....” He alleged the 1993 renewal of his staff privileges for one year breached that implied contract between him and the Hospital. Dr. Ivey alleged that “[t]he combination between [the hospital and the individual appellees] was designed to restrict [his] privileges and eliminate him as a competitor at [the Hospital].” He alleged further that the Hospital's breach of implied contract caused him actual damages.
        The Hospital moved for summary judgment on Dr. Ivey's breach of implied contract cause of action. The Hospital asserted that its medical staff bylaws do not constitute a contract between it and its medical staff members, and therefore there was no contract between Dr. Ivey and the Hospital. The Hospital also argued that its medical staff bylaws could not, as a matter of law, give rise to an implied contract between Dr. Ivey and the Hospital that the Hospital would renew his privileges for two-year periods, not one year, when the decision regarding staff privileges, according to the bylaws of the Hospital's Board of Trustees, belonged exclusively to the Board.
        The trial court granted summary judgment on Dr. Ivey's claim for breach of implied contract. On appeal Dr. Ivey argues the trial court improperly granted summary judgment in favor of the Hospital on his implied contract claim because the summary judgment evidence failed to negate an implied contract based on a course of dealing evidenced by the medical staff bylaws.
        The summary judgment evidence includes the medical staff bylaws that define “Governing Body” as the Board of Trustees. Those bylaws also provide: (1) for reappointments “by the Governing Body of the hospital after recommendation of the Medical Staff, through the Executive Committee;” and (2) that reappointment of the medical staff “shall be performed every two (2) years.” The evidence also includes the bylaws of the Hospital's Board of Trustees. Those bylaws provide that the Board of Trustees will review the recommendations of the medical staff, but final authority for reappointments is vested in the Board of Trustees.
        Where the bylaws of a hospital's governing board vest final authority on reappointments in the governing board, as the Board of Trustees' bylaws do here, the internal procedures set forth in medical staff bylaws cannot contractually limit the power of the governing body to reappoint or not reappoint a staff physician. FN:27 Similarly, we conclude the medical staff bylaws, including any provision for a term of reappointment, cannot give rise to an implied contract concerning the reappointment of a staff physician in contravention of the Board of Trustees' bylaws. FN:28 Absent such an implied contract, the trial court properly granted summary judgment on Dr. Ivey's cause of action for breach of an implied contract.

CONCLUSION

        Having rejected Dr. Ivey's specific arguments, we overrule his single point of error and affirm the trial court's judgment.


                                                          JIM MOSELEY
                                                          JUSTICE

Do Not Publish
Tex. R. App. P. 47

FN:1
1 See Tex. Bus. & Com. Code Ann. §§ 15.01-15.52 (Vernon 1987 & Supp. 2000).

FN:2
2 See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (point of error complaining that trial court erred in granting motion for summary judgment is sufficient to allow argument as to all possible grounds upon which summary judgment should have been denied).

FN:3
3 The trial court's initial order granting summary judgment stated that Dr. Ivey's pleadings incorrectly referred to the Hospital as Humana, but the trial court eventually set aside this order and the judgment based on this order.

FN:4
4 Tex. R. Civ. P. 166a(c); see Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

FN:5
5 See City of Garland v. Booth, 895 S.W.2d 766, 768 (Tex. App._Dallas 1995, writ denied).

FN:6
6 See City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979).

FN:7
7 See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

FN:8
8 See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989).

FN:9
9 See Webb v. Jorns, 488 S.W.2d 407, 409 (Tex. 1972).

FN:10
10 Tex. Bus. & Com. Code Ann. § 15.05(a) (Vernon Supp. 2000).

FN:11
11 See Tex. R. Civ. P. 63.

FN:12
12 See Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276 (Tex. 1996) (leave of court presumed when record does not indicate an amended pleading was not considered, and the opposing party does not show surprise).

FN:13
13 15 U.S.C. § 1 (1988).

FN:14
14 See Tex. Bus. & Com. Code Ann. § 15.04 (Vernon 1987); DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 687 (Tex.1990).

FN:15
15 See Standard Oil Co. v. United States, 221 U.S. 1, 58 (1911); DeSantis, 793 S.W.2d at 687.

FN:16
16 National Society of Pro. Engineers v. United States, 435 U.S. 679, 691 (1978); see DeSantis, 793 S.W.2d at 687.

FN:17
17 Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5 (1958).

FN:18
18 See National Society of Pro. Engineers, 435 U.S. at 692; DeSantis, 793 S.W.2d at 687.

FN:19
19 See Scott v. Galusha, 890 S.W.2d 945, 950 (Tex. App._Fort Worth 1994, writ denied) (plaintiff has no antitrust standing to prosecute economic injury to himself unless that injury corresponds to an injury of the same type to the relevant market).

FN:20
20 See Clear Creek Basin Authority, 589 S.W.2d at 678.

FN:21
21 See Tex. R. App. P. 47.1.

FN:22
22 Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995) (quoting Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983)).

FN:23
23 Harang v. Aetna Life Ins. Co., 400 S.W.2d 810, 813 (Tex. Civ. App._Houston 1966, writ ref'd n.r.e.).

FN:24
24 See Jeanes v. Hamby, 685 S.W.2d 695, 700 (Tex. App._Dallas 1984, writ ref'd n.r.e.) (fraudulent conspiracy); see also Act of May 17, 1985, 69th Leg., R.S., ch. 959, §16.003(a), 1985 Tex. Gen. Laws 3252 (subsequent amendments omitted) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon Supp. 2000)); Bado Equip. Co. v. Bethlehem Steel Corp., 814 S.W.2d 464, 469 (Tex. App._Houston [14th Dist.] 1991, no writ) (tortious interference with contract claims).

FN:25
25 See Hamby, 685 S.W.2d at 699-700.

FN:26
26 See Dickson Constr., Inc. v. Fidelity & Deposit Co., 960 S.W.2d 845, 851-52 (Tex. App._Texarkana 1997, no writ) (limitations period began to run when litigant suffered injury and later wrongful act “merely maintained” opponent's position); Harang, 400 S.W.2d at 814.

FN:27
27 Weary v. Baylor Univ. Hosp., 360 S.W.2d 895, 897 (Tex. Civ. App._Waco 1962, writ ref'd n.r.e.) (concluding no cause of action for breach of contract for failure to reappoint physician to medical staff). But see Walls Reg'l Hosp. v. Altaras, 903 S.W.2d 36, 41 (Tex. App._Waco 1994, no writ) (noting review process in medical staff bylaws may be contractual) (citing Gonzalez v. San Jacinto Methodist Hosp., 880 S.W.2d 436, 438-39 (Tex. App._Texarkana 1994, writ denied)).

FN:28
28 See Gillum v. Republic Health Corp., 778 S.W.2d 558, 569 (Tex. App._Dallas 1989, no writ).

File Date[03/30/2000]
File Name[970435F]
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