Meeks v. Miller

MEDICAL MALPRACTICE – IMMUNITY DUE TO EMPLOYMENT BY STATE

Meeks v. Miller, No. 2005-CT-00200-SCT (Miss. May 24, 2007)

The Supreme Court of Mississippi held that a physician was acting within the scope and course of his employment at a state-run teaching hospital and consequently was immune from liability in a negligence suit brought by a patient. The physician’s employment contract with the hospital allowed him to see patients, outside of his teaching responsibilities, and increase his income beyond his base salary. The court found that, despite this arrangement, the hospital maintained complete control over and had a financial interest in the physician’s earnings. The court also found that the physician’s contractual status as an employee was not altered by the fact that a resident was not present when the physician treated the patient.

Mem’l Hosp.-W. Volusia, Inc. v. News-Journal Corp.

PUBLIC DISCLOSURE – HOSPITAL RECORDS

Mem’l Hosp.-W.
Volusia, Inc. v. News-Journal Corp., No. 5D05-925 (Fla. Dist. Ct. App. Mar.
24, 2006)

The District Court of Appeals of Florida held that a hospital was
no longer subject to public disclosure laws after it was sold by a public entity.
The West Volusia Hospital Authority ("Authority") was a public entity
that originally leased a hospital to Memorial Hospital – West Volusia, Inc.
("Memorial").
During this time, the hospital’s records were subject to public disclosure
laws because Memorial, as a private entity, was performing a delegated function
of the public entity. However, after the Authority sold the hospital (to a
reconstituted corporate entity also named "Memorial"), it was no
longer "acting
on behalf" of the Authority, and was therefore no longer subject to the
public disclosure laws.

Meeks v. Miller

Medical Malpractice – Tort Claims Act

Meeks v. Miller, No. 2005-CA-00200-COA
(Miss. Ct. App. June 27, 2006)

A patient
filed a medical malpractice suit against a physician faculty member at the
University of Mississippi Medical Center ("UMMC"). The physician
filed for summary judgment, claiming immunity under the Mississippi Tort Claims
Act ("MTCA"), which protects from liability all state employees acting
within the course and scope of their employment. The patient argued that the
physician was an independent contractor, not an employee of UMMC, and therefore
not shielded by the MTCA. The trial court denied the physician summary judgment,
and he appealed.

The Court of Appeals of Mississippi weighed five factors in determining the
physician’s employment status: (1) the nature of the function performed by
the employee; (2) the extent of the state’s interest and involvement in the
function; (3) the degree of control and direction exercised by the state over
the employee; (4) whether the act complained of involved the use of judgment
and discretion; and (5) whether the physician receives compensation, either
directly or indirectly, from the patient for the professional services rendered.

The court held that all five factors weighed in favor of the physician’s status
as an employee. First, although a private physician-patient relationship was
established, the court held that the outpatient nature of the physician’s work
as an internist did not preclude him from acting in his capacity as a faculty
member even when not supervising a medical student. Regarding the second and
third factors, the court held that the state’s interest in (and degree of control
over) the physician’s employment was significant, given that UMMC was established
by state statute and the physician was prohibited from practicing medicine
outside of UMMC. The court found that the fourth factor of discretion was not
determinative, as physicians routinely exercise judgment in their treatment
of patients. Finally, the court held that the physician’s contract with UMMC
called for patient fees to be paid directly to the University and, as such,
the fifth factor favored the physician’s employee status as well. Accordingly,
the court held that the physician was immune from liability.

Melfi v. Mount Sinai Hosp. (Summary)

SEPULCHER

Melfi v. Mount Sinai Hosp., N.Y. Slip Op. 03404 (N.Y. App. Div. Apr. 28, 2009)

The Supreme Court of New York, Appellate Division, held that the statute of limitations had not expired for a claim of loss of sepulcher in a suit brought by a family member of a deceased patient against a hospital. The family member brought the suit after the body of his brother, who died at the hospital, was given to a mortuary school for embalming practice and, subsequently, interred in a mass grave without notice to his next of kin.

In addressing the statute of limitations defense to the right of sepulcher claim, the court held that the claim was timely because the cause of action did not begin to accrue until interference with the right impacts the "solace and comfort" of the next of kin as opposed to the time of the negligent act.

However, the court also held that the hospital could not be vicariously liable for punitive damages in connection with the loss of sepulcher claim because it could not be shown that the hospital was complicit with the acts of its employees.

Megrelishvili v. Our Lady of Mercy Medical Center,

Megrelishvili v. Our Lady of Mercy Medical Center,
Nos. 5705, 5705A (N.Y.A.D. 1 Dept. Feb. 19, 2002)

A patient who suffered complications after breast reduction surgery sued the
surgeon for negligence. During discovery, the surgeon revealed that he had lost
his clinical privileges at two other hospitals because he had no malpractice
insurance, that he had not had malpractice insurance for three years when he
performed the plaintiff’s surgery, and that the hospital where the surgery was
performed did not know that he had no malpractice insurance because he did not
submit an application for reappointment. The plaintiff then sued the hospital
for negligent credentialing.

The hospital’s medical staff services professional testified in a deposition
that she could provide little information because she was not the medical staff
services professional at the time of the plaintiff’s surgery, but that perhaps
the hospital’s vice president and legal counsel could provide such information.
The plaintiff sought a court order compelling the hospital to produce a witness
with knowledge of the facts and circumstances surrounding the surgeon’s appointment
and termination of appointment. The hospital filed a motion to dismiss or, in
the alternative, a protective order prohibiting the deposition of its vice president
and legal counsel. The hospital’s motion was supported by an affidavit from
the hospital vice president and legal counsel stating that she had no personal
knowledge or "operational responsibility" for the Department of the
Medical Staff Coordinator in 1993, when the surgery was performed, or at any
time prior thereto.

The New York Supreme Court, Appellate Division ordered the hospital to produce
the vice president and legal counsel or other person with relevant records concerning
the facts and circumstances surrounding the surgeon’s appointment. The court
found there were numerous issues as to the adequacy of the hospital’s review
of the surgeon’s credentials, whether it inquired as to his malpractice insurance
status, the outcome of that inquiry, the procedure for denying appointment to
physicians who did not meet the criteria for appointment, and whether those
procedures were followed in this case.

Mehta v. HCA Health Services of Fla., Inc. (Summary)

EXCLUSIVE CONTRACT/EMPLOYMENT DISCRIMINATION

Mehta v. HCA Health Services of Fla., Inc., No. 8:06-CV-1284-T-24-MSS (M.D. Fla. Aug. 20, 2007)

The federal District Court for the Middle District of Florida granted summary judgment to a hospital in an employment discrimination suit brought against it by a radiologist. The claim arose out of the hospital’s decision not to renew its exclusive contract with a radiology services provider through whom the radiologist worked. The radiologist alleged that the hospital’s decision was based on the racist demands of one of its physicians.

The court indicated that there must either be direct or circumstantial evidence of discrimination for a claim of employment discrimination to survive. Because the physician who made the racist demands did not have any decision-making authority with regard to the renewal of the contract, the court concluded that there was no direct evidence of discrimination. The court also determined that there was no circumstantial evidence of discrimination. This determination was based on the lack of evidence showing that the hospital’s decision not to renew the contract was tainted by the physician’s discriminatory intent. In actuality, the undisputed evidence displayed that the hospital decided not to renew the contract after a thorough and independent assessment of the radiology service’s ability to provide services according to the hospital’s terms.

Mehta v. HCA Health Services of Fla.

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 1 of 15

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DILIP MEHTA, M.D.,

Plaintiff,

HCA HEALTH SERVICES OF FLORIDA,
INC., d/b/a HCA OAK HILL HOSPITAL,

Defendant.

______________________________________/

Case No. 8:05-CV-27-T24-TGW

ORDER

This cause comes before the Court on Defendant HCA Health Services of Florida, Inc.’s

Motion for Summary Judgment. (Doc. No. 47.) Plaintiff Dilip Mehta, M.D. opposes this motion

arguing that certain genuine issues of material fact remain. (Doc. No. 48.) For the reasons

stated herein, Defendant’s motion is granted.

I. Facts and Procedural History

HCA Health Services of Florida, Inc. operates HCA Oak Hill Hospital in Spring Hill,

Florida (“Oak Hill”). (See Doc. No. 47.) Dilip Mehta, M.D. (“Mehta”) is a radiologist of Indian

descent who performed radiology services at Oak Hill pursuant to a series of exclusive contracts

between Oak Hill and Spring Hill Radiology. (Pl.’s dep. II, pp. 5-6).1

1The parties filed excerpts from two depositions of Mehta. The Court will refer to the
deposition taken on September 16, 2005, as “Pl.’s dep. I,” and the deposition taken on April 7,
2006, as “Pl.’s dep. II.”

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 2 of 15

Spring Hill Radiology

Spring Hill Radiology is a partnership comprised of professional associations formed

under the names of the physicians who perform radiology work at Oak Hill.2 (Id. at 33.) Each

professional association is allocated a percentage of the profits and losses of the partnership. (Id.

at 199-200, 235; Ex. 11.) The partnership also employs non-partner physicians to work at Oak

Hill. (Id. at 150, 152, 194.) Unlike the partners who created professional associations under

their name, these employees sign an employment agreement with the partnership and receive a

fixed salary. (Id. at 195, 235; Ex. 22.) As employees, they have no input in the operation of the

partnership, including the renewal of the partnership’s contract with Oak Hill. (Id. at 130-31.)

The Spring Hill Radiology professional associations make decisions regarding the terms and

conditions of the non-partners’ employment. (Id. at 119-21, 233.)

Mehta joined Spring Hill Radiology as an employee in August of 1990, whereupon he

received medical staff privileges at Oak Hill. (Id. at 167, 196-197). Three years later, in August

of 1993, Spring Hill Radiology offered Mehta full partnership, which he accepted. (Id. at 198-

200; Ex.9.) At that time, Mehta formed a professional association in his name, Dilip Mehta,

M.D., P.A., which became a partner of Spring Hill Radiology. (Id. at 200-04, 219-20; Exs. 10,

11.) Mehta is the sole shareholder, officer, and member of the board of directors of Dilip Mehta

M.D., P.A. (Id. at 202; Ex. 10.)

Since the mid-1980’s, Spring Hill Radiology has been the exclusive provider of radiology

services at Oak Hill, pursuant to a series of exclusive contracts. (Id. at 130-31.) Throughout the

2In late 2003, Spring Hill Radiology consisted of Aruna Medara, M.D., P.A., Dilip
Mehta, M.D., P.A., and Robert Weaver, M.D., P.A. (Pl.’s dep. I, p. 33, 70, 103, 118, 120.) At
that time, the partnership also employed Dr. Wasserman. (Id. at 118, 120.)

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 3 of 15

years, one of the Spring Hill Radiology partners negotiated and executed the renewal of the

contract with Oak Hill. (Id.) The final contract between Spring Hill Radiology and Oak Hill

was for a two-year term to extend from January 1, 2002, to December 31, 2003. (Smith aff.,

p.1.)

Alleged National Origin Discrimination and the Parties’ Negotiations of the
Contract Renewal

Arthur Flatau, M.D. is one of the top ten revenue-generating physicians at Oak Hill.

(Smith dep., p. 103.) On or about September 21, 2003, Flatau accused Mehta of touching his

wife inappropriately. (Pl.’s dep. II, p. 43.) Flatau confronted Mehta about the incident on

several occasions, and each time, Flatau angrily yelled racial slurs at him. (Pl.’s dep. I, p. 334,

344-345.) Flatau called Mehta a “slimy mother fucker Indian bastard” and asked Mehta what the

term “slime ball” meant “in [his] fucking Indian language.” (Id.) Flatau wrote a letter to Mehta

stating that if Spring Hill Radiology left Oak Hill Hospital quietly, his wife would drop her

assault charges against Mehta. (Pl.’s dep. II, p. 45-46.) When Mehta refused to leave Oak Hill,

Flatau also said to him, “you Indian bastards, you do not belong here, this is not your country.”

(Id. at 46.) Flatau generally admits making these statements. (Flatau dep., p. 172, 254, 290-91.)

Mehta reported Flatau’s comments to the Chief Executive Officer of Oak Hill, Mickey

Smith, and the Assistant Administrator of Oak Hill, Thomas Edwards. (Pl.’s dep. I, p. 348, 355,

387-391, 404; Pl.’s dep. II, p.50, 58-61.) On several occasions, Smith spoke to Flatau about his

remarks and his conduct in confronting Mehta. (Pl.’s dep. I, p. 387-391.) Each time they met,

Flatau insisted that either Mehta had to leave Oak Hill Hospital or Flatau would leave. (Smith

dep., p.16, 99-100; Flatau dep., p.194, 234.) Flatau explained that the incident involving his wife

“was not an issue that [he] was going to be able to live with.” (Flatau dep., p. 194.) Flatau

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 4 of 15

repeated his demand that Smith force Mehta and Spring Hill Radiology out of Oak Hill on a

weekly basis from September through December of 2003. (Smith dep., p. 100-01.)

Thereafter, Smith and Edwards informed Mehta that, although Flatau admitted making

the remarks, they were not going to suspend him or prohibit him from entering the radiology

department where Mehta worked. (Pl.’s dep. I, p. 387-391.) During this time period, the Oak

Hill Board of Trustees initiated a peer review investigation into Flatau’s allegation that Mehta

touched his wife inappropriately. (Pl.’s dep. II, p. 60.) Apparently, although it is not clear from

the record, the physician members of the Board were recused from the peer review investigation.

(Id.)

Also during this same time period, around October of 2003, Mehta began to negotiate the

renewal of the Spring Hill Radiology contract with Smith and Edwards. (Id. at 89.) Smith

informed Mehta that Oak Hill might not renew the contract if “Dr Flatau is not going to budge . .

. .” (Pl.’s dep. I, p. 324). In fact, Smith told Mehta that “the only reason where I will not renew

your contract . . . is because of Dr. Flatau’s threats.” (Id. at 362).

Despite Flatau’s threats, however, the contract negotiations continued, and in November,

Edwards sent Mehta a draft of the new contract that was set to begin on January 1, 2004. (Pl.’s

dep. II, p. 127-28.) After consulting with his attorney, Mehta again discussed the draft contract

with Edwards in mid-December 2003. (Id. at 19-20, 27-29, 128-29.) Because the December

31st contract termination date was approaching, and the parties had not reached agreement on all

the contract terms, Smith and Mehta decided to extend the existing contract for two months until

February 28, 2004, in order to complete the contract negotiations and to complete the peer

review investigation. (Id. at 29-30.)

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 5 of 15

On December 15, 2003, while the contract negotiations were ongoing, Mehta was

summoned to a meeting of the non-recused members of the Oak Hill Board of Trustees. (Id. at

20-24.) The Board informed Mehta that, based on the peer review committee’s report, the Board

had decided not to renew his contract and that he had 48 hours to resign from Oak Hill’s medical

staff. (Id. at 24.) One of the Board members threatened him that “they would make [his] life

miserable if [he] didn’t resign.” (Id.) Smith admits that the purpose of the December 15th

meeting was to give Mehta “the opportunity to resign before the [peer review] proceedings

reached the point where it would be a reportable event,” in which case Flatau’s allegations

against Mehta would be entered into the National Practitioner Data Bank and made available to

the public. (Smith dep., p. 83, 92.) Moreover, the Board threatened Mehta that if he did not

resign, additional women other than Flatau’s wife would be called as witnesses against him in

his peer review proceeding. (Id. at 85). Mehta refused to resign. (Id. at 89).

Despite the fact that the Oak Hill Board asked for Mehta’s resignation, Oak Hill still

desired to renew its contract with Spring Hill Radiology. (Id. at 91-92.) In fact, Smith testified

that there was a possibility that Mehta could continue to work at Oak Hill, if the results of the

peer review investigation did not affect his hospital privileges. (Id.) Therefore, the contract

negotiations continued until mid-January. (Pl.’s dep. I, p. 424; Pl.’s dep. II, p. 30-32.) At that

time, Smith informed Mehta that the peer review committee “found no evidence of wrongdoing,”

but that Oak Hill had decided not to renew the contract with Spring Hill Radiology. (Id.)

The Court’s August 8, 2005 Order

Thereafter, Mehta filed a seven-count complaint against Oak Hill in his individual

capacity, alleging national origin discrimination and retaliation in violation of Title VII of the

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 6 of 15

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Florida Civil Rights Act, Fla. Stat. §

760.01 et seq. (“FCRA”), 42 U.S.C. § 1981, and state breach of contract laws. (Pl.’s Am.

Comp.) Specifically, Mehta alleges that Oak Hill wrongfully capitulated to Flatau’s racist

demands by not renewing its contract with Spring Hill Radiology, deviated from the Oak Hill

Hospital by-laws during the peer review investigation, and terminated his staff privileges. (Id.)

On August 8, 2005, the Court dismissed a majority of Mehta’s claims. (Doc. No. 10.)

First, the Court dismissed Counts I through IV of Mehta’s Amended Complaint, which alleged

discrimination and retaliation in the non-renewal of the Spring Hill Radiology contract in

violation of Title VII and the FCRA. (Id. at 11, 21.) The Court found that Mehta’s status as an

independent contractor–rather than an employee–of Oak Hill precluded him from proceeding

with those claims against Oak Hill. (Id.) However, the Court ruled that Mehta could proceed

with his Title VII claim that, by not renewing the Spring Hill Radiology contract, Oak Hill

interfered with Mehta’s employment opportunities with Spring Hill Radiology. (Id. at 13.)

Next, the Court dismissed Counts V and VI of Mehta’s Amended Complaint, which alleged

discrimination and retaliation in the non-renewal of the Spring Hill Radiology contract in

violation of § 1981. (Id. at 17.) The Court reasoned that it was Spring Hill Radiology’s

right–not Mehta’s right–to enforce the contract with Oak Hill, and therefore Mehta did not have

an individual § 1981 cause of action relating to the contract’s non-renewal. (Id.) Finally, the

Court dismissed Count VII, which alleged breach of contract pursuant to state law, because

Mehta failed to allege intentional fraud. (Id. at 19.)

Accordingly, the remaining allegations before the Court include the following: 1) that

Oak Hill violated Title VII and the FCRA when it interfered with Mehta’s employment

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 7 of 15

opportunities with Spring Hill Radiology (Counts I and II), and 2) that Oak Hill violated § 1981

when it discriminated and/or retaliated against Mehta by terminating his medical staff privileges

and by failing to follow its own peer review procedures contained in its Medical Staff Bylaws

(Counts V and VI).

II.

Standard of Review

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears

the initial burden of showing the Court, by reference to materials on file, that there are no

genuine issues of material fact that should be decided at trial. Celotex Corp. v. Catrett, 477 U.S.

317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A moving party discharges its burden on a

motion for summary judgment by “showing” or “pointing out” to the Court that there is an

absence of evidence to support the non-moving party’s case. Id. at 325, 106 S. Ct. at 2554. Rule

56 permits the moving party to discharge its burden with or without supporting affidavits and to

move for summary judgment on the case as a whole or on any claim. See id. When a moving

party has discharged its burden, the non-moving party must then “go beyond the pleadings,” and

by its own affidavits, or by “depositions, answers to interrogatories, and admissions on file,”

designate specific facts showing there is a genuine issue for trial. Id. at 324, 106 S. Ct. at 2553.

In determining whether the moving party has met its burden of establishing that there is

no genuine issue as to any material fact and that it is entitled to judgment as a matter of law, the

Court must draw inferences from the evidence in the light most favorable to the non-movant and

resolve all reasonable doubts in that party’s favor. Samples v. City of Atlanta, 846 F.2d 1328,

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 8 of 15

1330 (11th Cir. 1988). Thus, if a reasonable fact finder evaluating the evidence could draw more

than one inference from the facts, and if that inference introduces a genuine issue of material

fact, then the court should not grant the summary judgment motion. Augusta Iron & Steel

Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856 (11th Cir. 1988) (per curiam). A

dispute about a material fact is “genuine” if the “evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,

106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986).

III.

Discussion

Counts I and II: Interference with Employment Opportunities in Violation of
Title VII and the FCRA3

First, Oak Hill argues that summary judgment on Mehta’s Title VII and FCRA

interference claims is appropriate because Mehta was not an employee of Spring Hill Radiology

at any time material to the Amended Complaint. Rather, Oak Hill argues that Mehta was the

president and sole shareholder of a professional association that functioned as a partner in the

Spring Hill Radiology partnership. In response, Mehta argues that a genuine issue of material

fact remains as to whether he was an employee of Spring Hill Radiology because he examined

patients in the Oak Hill Radiology Department pursuant to a contract between Spring Hill

Radiology and Defendant. Furthermore, he argues that the partnership controlled his work at

Oak Hill by negotiating the exclusive contract that established the hours and terms of his work in

the Radiology Department. Finally, he argues that the fact that Spring Hill Radiology paid his

3Decisions construing Title VII are applicable when considering claims under the FCRA
because the FCRA was patterned after Title VII. Harper v. Blockbuster Entm’t Corp., 139 F.3d
1385, 1387 (11th Cir. 1998).

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 9 of 15

professional association, Dilip Mehta, M.D., P.A.., which in turn paid him, is evidence of the

fact that he was employee of Spring Hill Radiology.

Title VII makes it unlawful for an employer to “fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s . . . national origin.”

42 U.S.C. § 2000e-2(a). “It is clear from the language of the statute that Congress intended that

the rights and obligations it created under Title VII would extend beyond the immediate

employer-employee relationship.” Zaklama v. Mt. Sinai Med. Ctr., 842 F.2d 291, 294 (11th Cir.

1988). Therefore, courts have found that the statute extends to the situation in which a defendant

controls, and has interfered with, an individual’s employment relationship with a third party. See

id.; Pardazi v. Cullman Med. Ctr., 838 F.2d 1155, 1156 (11th Cir. 1988) (permitting the plaintiff

to proceed with his claim that the defendant hospital interfered with his employment

opportunities with a third party professional corporation). To bring a Title VII suit for

interference with an employment relationship with a third party, Mehta must first establish that

he was an employee of Spring Hill Radiology. See Llampallas v. Mini-Circuits, Lab, Inc., 163

F.3d 1236, 1242-43 (11th Cir. 1998) (holding “that only those plaintiffs who are ‘employees’

may bring a Title VII suit). An “employee” is defined under Title VII as an “individual

employed by an employer.” 42 U.S.C. § 2000e(f).

In a case analogous to the instant one, Clackamas Gastroenterology Associates, P.C. v.

Wells, 538 U.S. 440, 123 S. Ct. 1673, 155 L. Ed. 2d 615 (2003), the Supreme Court considered

whether a shareholder-director of a professional corporation qualifies as an “employee” for

purposes of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”). In

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 10 of 15

doing so, the Supreme Court stated that the following six factors are relevant to the inquiry: (1)

whether the organization can hire or fire the individual; (2) to what extent the organization

supervises the individual’s work; (3) whether the individual reports to someone higher in the

organization; (4) to what extent the individual is able to influence the organization; (5) whether

the parties intended that the individual be an employee, as expressed in written contracts; and (6)

whether the individual shares in the profits, losses, and liabilities of the organization. Id. at 449-

50; 123 S. Ct. at 1680. In other words, “an employer is the person, or group of persons, who

owns and manages the enterprise,” who “can hire and fire employees,” who “can assign tasks to

employees and supervise their performance,” and who decides “how the profits and losses of the

business are to be distributed.” Id. at 450; 123 S. Ct. at 1680. Although Clackamas involved a

claim under the ADA, the analysis is applicable to determining whether Mehta, as the owner of a

professional association that is a partner of Spring Hill Radiology, also qualifies as an employee

of Spring Hill Radiology for purposes of Title VII.4

The record reveals that, although Mehta began his tenure with Spring Hill Radiology as

an employee, he was no longer an employee when he became a partner through his professional

association in August of 1993. As the sole shareholder and officer of Dilip Mehta, M.D., P.A.,

Mehta was part of the group that managed Spring Hill Radiology. As a partner, Mehta’s

professional association shared in the profits and liabilities of Spring Hill Radiology and was

compensated based upon how well the partnership performed. In conjunction with the other

4 The ADA and Title VII have nearly identical definitions of “employee.” See 42 U.S.C.
§§ 2000e(f), 12111(4) (both statutes defining “employee” as “an individual employed by an
employer”). Furthermore, the Supreme Court noted that the inter-circuit conflict regarding the
meaning of “employee” extends beyond the ADA to cases involving Title VII. Clackamas, 538
U.S. at 444 n.3, 123 S. Ct. at 1677 n.3.

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 11 of 15

partners, his professional association exercised supervision and control over all aspects of Spring

Hill Radiology, including the contract renewal negotiations with Oak Hill and making decisions

regarding the terms and conditions of the non-partners’ employment with Spring Hill Radiology.

Furthermore, Mehta’s role at Spring Hill Radiology was memorialized in a partnership

agreement, not an employment contract. Accordingly, because Mehta has not raised a genuine

issue of material fact as to whether he was an employee of Spring Hill Radiology at the time

relevant to his claims, the Court grants Oak Hill’s motion for summary judgment with regard to

Mehta’s Title VII and FCRA interference claims.

Counts V and VI: Termination of Medical Staff Privileges and Failure
to follow Medical Staff Bylaws regarding Peer Review Procedures in
Violation of § 1981

Next, Oak Hill argues that summary judgment is appropriate as to Mehta’s § 1981 claim

that it discriminated and/or retaliated against him by terminating his medical staff privileges. In

support of its position, Oak Hill relies on the “automatic expiration” provision of the Spring Hill

Radiology contract. Under this provision, the medical staff privileges of the Spring Hill

Radiology radiologists “shall automatically expire” upon the termination of Spring Hill

Radiology’s contract with Oak Hill. Thus, according to Oak Hill, the termination of Mehta’s

staff privileges was not an intentional act of discrimination or retaliation, but an automatic

function of the non-renewal of Spring Hill Radiology’s contract. Furthermore, Oak Hill argues

that Mehta has failed to show that Oak Hill treated any similarly-situated physicians more

favorably than him in applying the automatic termination provision.

Mehta disputes Oak Hill’s interpretation of the “automatic expiration” provision. In

particular, he asserts that this provision only applies “upon the termination of” the contract, and

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 12 of 15

the contract between Spring Hill Radiology and Oak Hill was never terminated–it was merely

not renewed at the end of the contract period. Therefore, according to Mehta, the “automatic

expiration” provision was never triggered. Additionally, Mehta relies on Northeast Georgia

Radiological Associates, P.C. v. Tidwell, 670 F.2d 507, 508 (5th Cir. Unit B 1982) for the

proposition that the Oak Hill Medical Staff Bylaws constituted a contract between himself and

Oak Hill, which afforded him due process protections with regard to the termination of his

hospital privileges. Finally, Mehta argues that Florida Statute § 395.0193(3) sets forth the

exclusive conditions upon which a physician’s hospital privileges can be revoked and does not

permit a physician’s hospital privileges to be revoked when a physician loses an exclusive

contract with a hospital.

Summary judgment is appropriate as to this claim for several reasons. First, Mehta has

failed to show that Oak Hill treated similarly-situated physicians more favorably than him with

regard to the termination of his medical staff privileges. “To show that employees are similarly

situated, the plaintiff must show that the employees are similarly situated in all relevant aspects.”

Knight v. Baptist Hosp., Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam) (citations and

quotations omitted). At his deposition, Mehta vaguely asserted his belief that Dr. Tracy was

treated more favorably than him with regard to the termination of her hospital privileges. (Pl.’s

dep. II, p. 180-82.) However, the unreed evidence shows that, at one point, Dr. Tracy had

clinical privileges both to perform anesthesiology services and to perform pain management

procedures at Oak Hill. (Smith aff., p.4.) When her group’s exclusive anesthesiology contract

was terminated, Dr. Tracy’s anesthesiology privileges automatically expired. (Id.) Dr. Tracy

remained on the medical staff, however, because of her independent and separate privileges

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 13 of 15

to perform pain management procedures. (Id.) Therefore, Dr. Tracy and Mehta are not

similarly-situated physicians. Furthermore, Mehta does not provide any support for his

argument that § 395.0193(3) prohibits a physician’s hospital privileges to be revoked when a

physician loses an exclusive contract with a hospital. That statute sets forth the due process by

which a hospital may suspend, deny, revoke, or curtail a physician’s privileges. Nothing in the

statute prohibits a hospital from terminating a physician’s privileges when the hospital elects not

to renew an exclusive contract between the parties, as is the case here. Finally, Mehta’s reliance

on Northeast Georgia Radiological Associates, P.C. is misplaced. Although the case is factually

analogous to the instant case, it is not controlling because the plaintiff in that case raised a claim

pursuant to § 1983, not § 1981. Accordingly, because there is no genuine issue of material fact

with regard to Mehta’s claim that Oak Hill discriminated and/or retaliated against him by

terminating his hospital privileges, the Court hereby grants Oak Hill’s motion with regard to this

claim.

Finally, Oak Hill asserts that summary judgment is appropriate as to Mehta’s § 1981

claim that he was subjected to discrimination and/or retaliation in the way that Oak Hill

conducted the peer review investigation of Flatau’s wife’s allegation that Mehta touched her

inappropriately. Relying on Florida Statute §§ 395.0191 and 395.0193, Oak Hill asserts that any

discovery or discussion of the matters concerning the peer review process would invade Florida

statutory privileges governing hospital procedures for the credentialing of medical staff and peer

review procedures. Accordingly, Oak Hill does not discuss the substance of the peer review

process in its motion for summary judgment. Nevertheless, Oak Hill argues that summary

judgment is appropriate because Mehta has not alleged that he suffered an adverse employment

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 14 of 15

action with regard to the peer review proceedings. To the contrary, according to Oak Hill,

Mehta admits that it decided not to take any adverse action against him.

In response, Mehta asserts that he alleged an adverse employment action sufficient to

preclude summary judgment, namely, that Oak Hill improperly excused physician members of

the peer review committee, which resulted in a termination of his medical staff privileges and the

non-renewal of Spring Hill Radiology’s contract. In particular, Mehta points to his deposition

testimony in which he stated his belief that the Spring Hill Radiology contract would have been

renewed, and therefore his staff privileges would have been retained, “[i]f the peer review

[investigation] had been [conducted] the way it should normally [be conducted] based on the

bylaws of the Hospital.” (Pl.’s dep. II, p. 12-13.)

To state a prima facie case of discrimination or retaliation, the plaintiff must show that he

suffered an “adverse employment action.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232,

1238 (11th Cir. 2001). To prove an adverse employment action, “an employee must show a

serious and material change in the terms, conditions, or privileges of employment.” Id. at 1239.

Furthermore, “the employee’s subjective view of the significance and adversity of the

employer’s action is not controlling; the employment action must be materially adverse as

viewed by a reasonable person in the circumstances.” Id.

Summary judgment is appropriate as to this remaining claim because Mehta has failed to

put forth sufficient evidence to raise an issue of fact at the summary judgment stage of this

litigation. The record is almost entirely devoid of details regarding the peer review process, and

although some of the deposition testimony alludes to the removal of physician members from the

peer review investigation, the Court does not have sufficient evidence before it to find that there

Case 8:05-cv-00027-SCB-TGW Document 56 Filed 10/31/2006 Page 15 of 15

is a genuine issue for trial. Mehta’s testimony that he believes the outcome of the peer review

investigation would have been different had Oak Hill not removed the physician members from

the process is insufficient. Furthermore, although Mehta filed the Oak Hill Hospital Medical

Staff Bylaws, the Court is unable to determine how Oak Hill deviated from these Bylaws during

the peer review process. Therefore, viewing the record in the light most favorable to Mehta, the

Court grants Oak Hill’s motion for summary judgment with regard to this final claim.

IV.

Conclusion

Accordingly, it is ORDERED AND ADJUDGED that Oak Hill’s Motion for Summary

Judgment (Doc. No. 47) is granted in its entirety. As there are no remaining claims before the

Court, the pretrial conference set in this case for Thursday, November 2, 2006, is hereby

cancelled. The Clerk is directed to enter judgment in favor of Defendant Oak Hill and to close

this case.

DONE AND ORDERED at Tampa, Florida, this 31st day of October, 2006.

Copies to:
Counsel of Record

Mehta v. HCA Health Services of Florida (Summary)

EMPLOYEE DISCRIMINATION

Mehta v. HCA Health Services of Florida, No. 8:05-CV-27-T24-TGW (M.D. Fla. Oct. 31, 2006)

The United States District Court for the Middle District of Florida granted a hospital’s motion for summary judgment in a suit brought by a physician that alleged discrimination. The physician sued the hospital, claiming discrimination, after it did not renew its exclusive contract with the professional partnership of radiologists of which he was a partner. The district court found that to bring a Title VII suit under the federal Civil Rights Act, the physician had to be an employee of the partnership whose contract was not renewed by the hospital. As a partner, and not an employee, the physician failed to satisfy this requirement. The physician also failed on his claim under §1981, which alleged his privileges were terminated because of discrimination, as the “automatic expiration” provision concerning the physician’s medical staff appointment that was a part of the hospital’s contract with the partnership was not prohibited by the statute. Since the doctor failed to raise a genuine issue of material fact regarding his claims of discrimination, summary judgment was granted for the hospital.

Mehta v. HCA Health Services of Florida

Case 8:06-cv-01284-SCB-MSS Document 34 Filed 08/20/2007 Page 1 of 12

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DILIP MEHTA, M.D., d/b/a
SPRING HILL RADIOLOGY,

Plaintiff,

HCA HEALTH SERVICES OF FLORIDA,
INC., d/b/a HCA OAK HILL HOSPITAL,

Defendant.

______________________________________/

Case No. 8:06-CV-1284-T-24-MSS

ORDER

This cause comes before the Court on Defendant HCA Health Services of Florida, Inc.’s

(“HCA”) Motion for Summary Judgment (Doc. No. 17) as to Plaintiff Dilip Mehta, M.D. d/b/a

Spring Hill Radiology’s (“Spring Hill”) national origin discrimination claim under 42 U.S.C. §

1981(b). Spring Hill argues that a genuine issue of material fact remains as to whether HCA

discriminated against the partnership when it attempted to modify and failed to renew the

parties’ exclusive contract for radiology services. (Doc. No. 25.) With the Court’s permission,

HCA filed a reply. (Doc. No. 30.) For the reasons stated herein, HCA’s motion is granted.

I. Facts

Defendant HCA Health Services of Florida, Inc. operates HCA Oak Hill Hospital in

Spring Hill, Florida. Since the mid-1980’s, Plaintiff Spring Hill Radiology has been the

exclusive provider of radiology services at the hospital, pursuant to a series of exclusive

contracts. The final contract between Spring Hill and HCA was for a two-year term to extend

Case 8:06-cv-01284-SCB-MSS Document 34 Filed 08/20/2007 Page 2 of 12

from January 1, 2002, to December 31, 2003. Dilip Mehta, M.D. is a radiologist of Indian

descent who performed radiology services at the hospital pursuant to the contracts between

Spring Hill and HCA.

Arthur Flatau, M.D. is one of the top ten revenue-generating physicians at the hospital.

On September 21, 2003, Flatau accused Mehta of touching his wife inappropriately. Flatau

demanded that Spring Hill leave the hospital quietly or else Flatau would press criminal charges

against Mehta.

Flatau again confronted Mehta on several occasions over the following weeks, each time

angrily yelling racial slurs at Mehta and demanding that Spring Hill leave the hospital quietly.

Flatau said to him, “you Indian bastards, you do not belong here, this is not your country.” On

another occasion, Flatau pushed Mehta to the wall, put his finger in Mehta’s face, and said, “you

mother fucking Indian slime ball, do you know in your mother fucking Indian language what that

means.” Flatau also met with the Chief Executive Officer of Oak Hill Hospital, Mickey Smith,

and repeatedly insisted that either Spring Hill and Mehta had to leave the hospital or he would

leave. Flatau explained to Smith that the incident involving his wife was not an issue that he was

going to be able to live with.

On or about October 24, 2003, Mehta reported Flatau’s threatening behavior and racist

demands to Smith. Smith responded that, although Flatau admitted the threatening behavior, the

hospital was not going to suspend him or prohibit him from entering the radiology department

were Mehta worked. During this meeting, Smith and Mehta also discussed whether HCA would

renew the Spring Hill contract. Smith told Mehta that “the only reason not to renew the . . .

contract is because of Dr. Flatau.” He added that “this has nothing to do with you as a

Case 8:06-cv-01284-SCB-MSS Document 34 Filed 08/20/2007 Page 3 of 12

radiologist, your services or anything else.” Furthermore, Smith informed Mehta that, despite

Flatau’s insistence that Spring Hill leave the hospital, he would talk with the Assistant

Administrator of Oak Hill Hospital, Tom Edwards, and provide Spring Hill with a draft of a

renewal contract.

On October 28, 2003, Mehta met with Smith and Edwards to discuss several issues

relating to the contract renewal. One issue concerned the ability of Spring Hill to recruit and

retain the appropriate number of full-time radiologists, as one of the radiologists was leaving the

partnership. Mehta agreed that Spring Hill would be able to achieve full radiologist staffing by

January 31, 2004. At the conclusion of the meeting, Edwards informed Mehta that he would be

able to produce a draft contract within a couple of days.

On November 3, 2003, Mehta again met with Edwards about the renewal of the Spring

Hill contract. Edwards informed Mehta that he would not be able to provide the draft contract

for another three to four weeks because several HCA officials and departments first would have

to review it. Mehta explained that he would not be able to recruit another radiologist without a

contract from the hospital, and therefore, he proposed that the January 31, 2004 deadline by

which he was required to achieve full radiologist staffing be extended to 90 days after the

contract was signed. Edwards agreed.

Shortly thereafter, on or about November 6, 2003, Flatau filed a complaint against Mehta

with the hospital’s medical executive committee, which initiated an investigation into Flatau’s

allegations that Mehta inappropriately touched his wife. While the committee’s investigation

was ongoing, on December 1, 2003, HCA sent Mehta the draft renewal contract, who then

forwarded it to his attorney. Approximately two weeks later, on December 15, 2003, the

Case 8:06-cv-01284-SCB-MSS Document 34 Filed 08/20/2007 Page 4 of 12

hospital’s Board of Trustees informed Mehta that, based on the review committee’s report, the

Board had decided not to renew his contract and that he had 48 hours to resign from Oak Hill’s

medical staff.

Despite the fact that the Oak Hill Board asked for Mehta’s resignation, the contract

negotiations continued. After consulting with his attorney, on December 17 and 30, 2003, Mehta

met with Smith and Edwards to discussed the draft contract. During these meetings, the parties’

negotiations centered on Spring Hill’s ability to achieve full radiologist staffing. However, they

also discussed other issues, such as HCA’s requirement that the radiologists have a certain

amount of medical malpractice insurance, HCA’s expectation that the radiologists work eight

hours per day, the timeliness of Spring Hill’s radiology reports, and Spring Hill’s previous

treatment of certain individual patients. At the December 30, 2003 meeting, because the parties

had not reached agreement on all the contract terms and the December 31st contract termination

date was imminent, they agreed to extend the existing contract for two months until February 28,

2004, in order to complete the contract negotiations.

By January 16, 2004, HCA and Spring Hill had not agreed upon the terms of the contract

renewal, and no contract had been signed. On that date, Smith informed Mehta that HCA had

decided not to renew the contract with Spring Hill. Smith explained that he “has to do what is

right for the hospital” and that “there is enough pressure from Dr. Flatau.”

Thereafter, Spring Hill filed this suit against HCA for national origin discrimination in

violation of 42 U.S.C. § 1981(b). Specifically, Spring Hill alleges that HCA wrongfully

capitulated to Flatau’s racist demands when it attempted to modify and failed to renew the

parties’ exclusive contract for radiology services.

Case 8:06-cv-01284-SCB-MSS Document 34 Filed 08/20/2007 Page 5 of 12