McCloud v. The Bd. of Dirs. of Geary Cmty. Hosp., et al.

Case 6:06-cv-01002-MLB-DWB Document 41 Filed 08/16/2006 Page 1 of 13(cid:10)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

Plaintiffs,

v.

Case No. 06-1002-MLB

DEANNA McCLOUD and
TIMOTHY McCLOUD,

)
)
)
)
)
)
)
)
)
)
)
)
Defendants.
___________________________________ )

THE BOARD OF DIRECTORS OF
GEARY COMMUNITY HOSPITAL,
et al.,

MEMORANDUM AND ORDER

Before the Court is the Joint Motion of Defendants for an Order to Gather

Personal Health Information and for Ex Parte Communications (Doc. 29), filed on

June 30, 2006. Plaintiffs filed a Response in Opposition (Doc. 36) on July 19,

2006, which was followed by Defendants’ reply (Doc. 39) on July 31, 2006. After

careful consideration of the briefing of the parties, the authorities stated therein,

and the numerous exhibits submitted, the Court is prepared to rule on Defendants’

motion.

BACKGROUND

This case arises out of medical care and treatment provided to Plaintiff

Deanna McCloud, who was 31 weeks pregnant at the time of the medical care at

Case 6:06-cv-01002-MLB-DWB Document 41 Filed 08/16/2006 Page 2 of 13(cid:10)

issue, and Kiana McCloud, her unborn child. The medical care was necessitated

by a motor vehicle accident in which Deanna McCloud was involved. Plaintiffs

filed their Complaint (Doc. 1) on January 6, 2006, alleging violations of the

Emergency Medical Treatment and Active Labor Act (hereinafter “EMTALA”), 42

U.S.C. § 1395dd (Counts I and II),1 and state law claims for the wrongful death of

Kiana McCloud (Count III), for the personal injuries of Deanna McCloud due to

defendant’s alleged negligence (Count IV) and for punitive damages due to

defendants’ alleged gross negligence (Count V). Defendants generally denied

Plaintiffs’ allegations of negligence. (Docs. 15, 17, and 18.)

Defendants filed the present motion requesting that the Court enter

appropriate orders directing “the physician-patient privilege has been waived, that

Defendants are entitled to Deanna and Kiana McCloud’s medical records as

outlined in the orders and that Defendants are entitled to interview Deanna and

Kiana McCloud’s treating physicians, without the presence of plaintiffs or their

counsel, if the physicians consent.” (Doc. 29 at 10.) Plaintiffs responded that

Defendants have “fail[ed] follow legal procedures as required by HIPAA . . .”

1 On June 29, 2006, Defendants jointly moved to dismiss Count II of Plaintiffs’
Complaint, which seeks damages under EMTALA against Defendant doctors Felts and
Khoury individually. (Doc. 28.) This motion is currently pending before the District
Court.

2

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(Doc. 36 at 14.) Plaintiffs requested that Defendants be required to follow

HIPAA’s protocols. Plaintiffs further requested that the Court enter an Order

requiring Plaintiffs’ counsel to be present at any meeting with a treating physician

or, in the alternative, notify Plaintiffs’ counsel three days in advance of any such

scheduled meeting. (Id.) Defendants replied (Doc. 39) that Plaintiffs’ objections

have no foundation in fact and law.

DISCUSSION

1.

Ex Parte Contact With Treating Physicians.

In making claims for wrongful death and personal injury, Plaintiffs have

clearly placed the medical condition of Deanna and Kiana McCloud at issue.

Therefore, Plaintiffs cannot claim that their treating physicians are prevented from

disclosing information concerning their medical condition by the physician-patient

privilege which is codified in K.S.A. 60-427.2 Subsection (d) of that statute

specifically states:

There is no privilege under this section in an
action in which the condition of the patient is an
element or factor of the claim or defense of the
patient or of any party claiming through or under

2 Fed.R.Evid. 501 provides that in civil proceedings, where state law provides the
rule of decision concerning a claim or defense, the privilege of a witness or person is to
be determined in accordance with state law. Here the parties agree that Kansas law is the
basis for the wrongful death and personal injury claims by Plaintiffs.

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the patient or claiming as a beneficiary of the
patient through a contract to which the patient is or
was a party. (Emphasis added).

Thus, there is no issue of waiver of the privilege in the present case; the privilege

simply does not exist. See Bryant v. Hilst, 136 F.R.D. 487, 491 (D. Kan. 1991)

(holding “[t]he issue is not waiver or partial waiver, there is simply no privilege

available to the plaintiff.”). Judges in this District consistently have held that ex

parte communications with treating physicians are permissible in cases, such as the

present one, in which the medical condition of the plaintiff is an issue. See G.A.S.

v. Pratt Regional Medical Center, Inc., et al., No. 05-1267-JTM, June 8, 2006,

Memorandum and Order (Magistrate Judge Karen Humphreys), at 2-3 (attached as

Ex. 3 to Defendants’ Joint Motion, Doc. 29) (collecting decisions from this

District). See also Lake v. Steeves, 161 F.R.D. 441 (D.Kan. 1994) (District Judge

Sam A. Crow); McGee v. Stonebridge Life Insurance Co., No. 05-4002-JAR,

June 28, 2005, Memorandum and Order (Magistrate Judge K. Gary Sebelius). The

Court finds no reason to part with the well-reasoned line of decisions from this

District,3 and an extended discussion of those prior decisions would not add

3 The Court is also mindful of the decisions cited by Defendants from other
jurisdictions also holding that such ex parte communications with treating physicians are
to be allowed when a plaintiff has placed his or her medical condition at issue. (Doc. 39
at 14-19.)

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Case 6:06-cv-01002-MLB-DWB Document 41 Filed 08/16/2006 Page 5 of 13(cid:10)

anything meaningful to the legal scholarship on this topic.

2.

Provisions of HIPAA.

Plaintiffs argue that HIPAA, the Health Insurance Portability and

Accountability Act, has changed the landscape for production of medical

information and that HIPAA preempts any state provisions on this topic unless the

state law provisions are “more stringent” than the rules and regulations under

HIPAA. (Doc. 36 at 6.) The Court, however, does not need to delve into the

intricacies of this argument because it finds that Defendants, by filing the present

motion seeking a court order allowing the production of medical information and

an ex parte contact with the treating physicians, has complied with the HIPAA

regulations.4

The Court is satisfied that Defendants have followed all the relevant

procedural requirements and safeguards imposed by HIPAA. Those requirements

are set out in 45 C.F.R. § 164.512(e)(1), and that section allows disclosure of

protected health information

“in the course of any judicial or administrative
proceeding: (i) In response to an order of a court or
administrative tribunal, provided that the covered entity
discloses only the protected health information expressly

4 To the extent the Court may have concerns about the provisions of the proposed
orders as to information covered by 42 C.F.R., Part 2, those are addressed later in this
Memorandum and Order.

5

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authorized by such order . . . .”
That is precisely what Defendants have done in this case by filing the instant

motion and seeking a Court order allowing disclosure of Plaintiffs’ medical

information. The proposed Orders clearly state what medical information is

covered by the Orders thus allowing any medical providers to assure themselves

that they are in compliance with the HIPAA requirements.

Plaintiffs argue that other subsections of section 164.512(e)(1) also govern

in this case and that Defendants have not complied with those requirements. (Doc.

36 at 10-11.) The Court does not agree. Section 164.512(e)(1) sets out two

separate and alternative ways to obtain protected health information: one is by

court order under subsection (i), and the other is by subpoena, discovery request, or

other lawful process “that is not accompanied by an order of a court . . . .”

(emphasis added) under subsection (ii). Plaintiffs discuss several things that are

required if a party proceeds under subsection (ii) by subpoena or discovery request,

including the requirement that the party whose records are being sought is given

notice under subsection (ii)(A), or that the party seeking the information secure a

“qualified protective order” as described in subsections (ii)(B) and (v). Any such

“qualified protective order” is to include provisions that prohibit use of the

information for any purpose other than the litigation and require the return of the

information to the covered entity at the end of the litigation. See

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164.512(e)(1)(v)(A) and (B). However, the provisions of subsections

164.512(e)(1)(ii), (iii), (iv) and (v), all apply only where the information is sought

by subpoena or document request under subsection (ii), and not where the

documents are to be provided in response to a court order for disclosure under

subsection (i).5

Plaintiffs finally argue that if the Court enters an order granting Defendants’

motion, it should either include the requirement that Plaintiffs’ counsel be present

during any interview with treating physicians or that Plaintiffs be given three day’s

notice prior to any ex parte contact with their physicians or other health care

provider. (Doc. 36 at 14.) The Court will not adopt these suggestions. None of

the cases in this District which allow ex parte contact with treating physicians or

other health care providers have included the requirement that opposing counsel be

present during the interview. In fact, the term “ex parte” is specifically defined as

“On one side only; by or for one party; done for, in behalf of, or on the application

of one party only.” BLACK’S LAW DICTIONARY, (Fifth Ed.). The Court will not

modify the procedure to allow or require Plaintiffs’ counsel to be present during

any such interviews. The Court also will not impose any notice requirement or

5 Even if the Court were to apply the requirements of section
164.512(e)(1)(v)(A) and (B) in this case, the Orders proposed by Defendants
specifically state that the Court is entering a “qualified protective order” and the
proposed Orders also contains the requirements of these subsections.

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timetable before the interviews can be conducted. Under HIPAA, notice to the

party whose records are to be obtained is only required when those records are

sought by subpoena or document request. See section 164.512(e)(1)(ii)(A) and

(iii). In this case, Plaintiffs already have notice by the filing of the instant motion

that interviews will be requested. There is no need for any further notice to

Plaintiffs.

Finally, the proposed Order clearly informs any treating physician of their

right to decline any request for ex parte communication. The language of the

proposed order adequately notifies the treating physician that he or she has a right

to decline an attorney’s request to speak or meet with the physician informally. As

such, the Court finds Defendants’ proposed Order to be consistent with the practice

in this District.

3.

42 C.F.R., Part 2.

The proposed Orders submitted by Defendants also include the statement

that “This Order further allows the disclosure of . . . (2) information regarding

diagnosis and treatment of mental, alcoholic, drug dependency and emotion

condition pursuant to 42 C.F.R. part 2.” (Doc. 29, attached Orders.) The

regulations found in 42 C.F.R. part 2 are not HIPAA regulations, but were enacted

pursuant to the provisions of the Drug Abuse Prevention, Treatment, and

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Case 6:06-cv-01002-MLB-DWB Document 41 Filed 08/16/2006 Page 9 of 13(cid:10)

Rehabilitation Act, 21, U.S.C. § 1175, and were later transferred into the Public

Health Service Act, 42 U.S.C. § 290dd-2. See 42 C.F.R. § 2.1 and 2.2.6

Under 42 U.S.C. § 290dd-2, records of the identity, diagnosis, prognosis or

treatment of any patient which are maintained in connection with any program

relating to substance abuse education, prevention, training, treatment, rehabilitation

or research, which are conducted, regulated, or directly or indirectly assisted by

any department or agency of the United States, shall be confidential, and shall be

disclosed only as provided in the statute and implementing regulations. One

method for obtaining such records is to obtain authorization by an appropriate

order of a court of competent jurisdiction, upon a showing of good cause. 42

U.S.C. § 290dd-2(b)(2)(C). The statute further directs that

In assessing good cause the court shall weigh the public
interest and the need for disclosure against the injury to
the patient, to the physician-patient relationship, and to
the treatment services. Upon the granting of such order,
the court, in determining the extent to which any
disclosure of all or any part of any record is necessary,
shall impose appropriate safeguards against unauthorized
disclosure.

42 U.S.C. § 290dd-2(b)(2)(C). See also Mosier v. American Home Patient, 170

6 Initially there were separate statutory sections pertaining to disclosure of records
for drug abuse and another for alcoholism. In 1992, these sections were combined into
one section – 42 U.S.C. § 290dd-2. See Pub.L. 102-321, Title I, § 131, 106 Stat. 366
(1992).

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F.Supp. 2d 1211, 1213-15 (N.D.Fla. 2001) (discussing what may constitute a finding of

“good cause” under the regulations).

Subpart E of the regulations enacted pursuant to this statute set out the

requirements and procedures for entry of an order authorizing disclosure of patient

substance abuse records in a pending civil action where it appears that the records

are need to provide evidence. See 42 C.F.R. § 2.63 and 2.64. These orders are “a

unique kind of court order.” See 42 C.F.R. § 2.61. Courts applying these statutes

and regulations have noted that there is a strong presumption against disclosing

records of the kind covered by the statute and regulations, and the privilege

afforded to them should not be abrogated lightly. Fannon v. Johnson, 88

F.Supp.2d 753, 758 (E.D.Mich. 2000); Guste v. The Pep Boys-Manny, Moe &

Jack, Inc., 2003 WL 22384947 at * 3 (E.D.La. 2003).

It is important to note, however, that not every substance abuse treatment

program’s records will be covered by the statute and regulation. The statute and

regulations apply only to records of programs which are federally conducted,

regulated or supported in a manner which constitutes Federal assistance under the

regulations. See 42 C.F.R. § 2.12(a)(2); Beard v. City of Chicago, 2005 WL

66074 at * 4 (N.D. Ill. 2005) (Section 290dd-2 does not create a privilege that

covers any and all records of substance abuse treatment but only those records of

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programs which are conducted, regulated or directly or indirectly assisted by an

agency of the United States). See also, Center for Legal Advocacy v. Earnest, 320

F.3d 1107 (10th Cir. 2003) (holding as a matter of law that a specific hospital’s

emergency department does not qualify as an alcohol or drug abuse “program”

under the Part 2 regulations and therefore the hospital could not refuse production

of the records in reliance on the statute and regulations).

After reviewing 42 U.S.C. 290dd-2, the regulations in 42 C.F.R. § 2.1, et.

seq., and the cases cited above, the Court cannot conclude based on the present

record that the motion and proposed Orders in this case would satisfy the statutory

and regulatory requirements for production of information regarding diagnosis and

treatment of alcoholism or drug dependency pursuant to 42 C.F.R. Part 2. See 42

C.F.R. §§ 2.63 and 2.64. See e.g., U.S. ex.rel. Chandler v. Cook County, Ill., 277

F.3d 969, 982-83 (7th Cir. 2002) (finding that the district court’s discovery order

violated the provisions of the regulations). In fact, the Court is not in a position to

determine whether any such records actually exist, or if they do exist, whether they

are records of a “program” that is federally directed or assisted in the manner

required by 42 C.F.R. part 2. Therefore, the Court is not in a position to include in

the present Orders any authorization to produce records that are governed by 42

U.S.C. § 290dd-2 and 42 C.F.R., Part 2.

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The Court therefore directs that Defendants remove the language in the two

proposed Orders which states that the Orders allow disclosure of “(2) information

regarding diagnosis and treatment of mental, alcoholic, drug dependency and

emotional condition pursuant to 42 C.F.R. part 2.” Furthermore, the paragraph of

the proposed Orders which describes in detail those documents that are covered by

the Order should be amended to include the following proviso:

“Provided however, that this Order does not provide
for the production of any medical records maintained
in connection with any program relating to substance
abuse education, prevention, training, treatment,
rehabilitation or research, which are conducted,
regulated, or directly or indirectly assisted by any
department or agency of the United States, and which
are covered by the provisions of 42 U.S.C. § 290dd-2
and 42 C.F.R., Part 2.

The Court should emphasize, however, that the proposed Orders, as revised,

would authorize the production of any medical records or information about any

treatment of Plaintiffs for substance abuse issues if the provider who did the

treatment and maintained the records was not a federally assisted or directed

program as defined by 42 U.S.C. § 290dd-2 and 42 C.F.R., Part 2. Furthermore,

nothing in this Memorandum and Order should be construed to prohibit

Defendants from seeking an order in the future concerning production of substance

abuse records which would be covered by 42 U.S.C. § 290dd-2 and 42 C.F.R., Part

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2 if such records exist and if Defendants can satisfy the requirements of the statute

and regulations.

CONCLUSION

Defendants’ Motion (Doc. 29) is hereby GRANTED as outlined in this

Memorandum and Order. Defense counsel shall revise the two proposed Orders as

directed above, and shall forward the revised Orders by e-mail to the undersigned

magistrate judge for approval and filing. Because the Court has ruled on the

objections raised by Plaintiffs, the revised Orders do not need to contain the

approval lines and electronic signatures of counsel for the parties.

IT IS SO ORDERED.

Dated at Wichita, Kansas on this 16th day of August, 2006.

s/ Donald W. Bostwick
DONALD W. BOSTWICK
United States Magistrate Judge

13

McElwain v. Physicians Ins. Co. of Wis.

McElwain v. Physicians Ins. Co. of Wis.,
No. 99-CV-656 (Wis. Ct. App. Feb. 5, 2002)

A patient and his wife appealed a summary judgment dismissing their medical
malpractice action against a cardiac surgeon and a hospital. The patient suffered
complications after surgery in 1994 but did not file suit until 1999. The cardiac
surgeon and hospital argued that the plaintiffs knew, or should have known,
about any alleged malpractice after reading a July 1998 article in a local newspaper
about the surgeon. Therefore, they argued, the claim was barred by the statute
of limitations.

Under Wisconsin law, a patient has one year to commence an action from the
time an injury is discovered or, in the exercise of reasonable due diligence,
should have been discovered. The appeals court noted that the question of whether
a plaintiff knew or should have known of an injury is usually left to the jury.
In this case, the court found the July 1998 article to be so ambiguous that
a jury should determine whether, after reading it, the plaintiffs should have
known they had a malpractice claim. Therefore, the court ruled that summary
judgment was inappropriate.

McCall v. Scott

McCall v. Scott,

Nos. 99-6370/6387 (6th Cir. Feb. 13, 2001)

Insisting that a large, national health care corporation’s Board of Directors intentionally
ignored indications of widespread and systematic health care fraud, the corporation’s
shareholders brought this consolidated stockholder derivative suit against the
current and former directors of the corporation. Claiming that the corporation
had engaged in various forms of Medicare fraud and interference with physician
relationships in pursuit of its acquisition goals, the stockholders’ complaint
specifically alleged intentional and negligent breach of the fiduciary duty
of care and intentional breach of the fiduciary duty of care by illegal insider
trading. The district court, granting the directors’ motion to dismiss the consolidated
claim under Federal Rule of Civil Procedure 12(b)(6), held that the stockholders
failed to sufficiently allege the demand futility necessary to excuse the stockholders’
failure to make a pre-suit demand on the corporation’s Board of Directors.

Reversing the district court with respect to the
stockholders’ claim for intentional and reckless breach of the duty of care,
the court of appeals held that the shareholders presented the particularized
factual statements essential to their claim. The court, stressing that its
decision addressed only the sufficiency of the pleadings, recognized that
director liability under the shareholders’ claim of intentional or reckless
breach of the duty of care may stem from “an unconsidered failure of the
board to act in circumstances in which due attention would, arguably, have
prevented the loss.” In light of directors’ prior business experience,
coupled with media reports of illegal activities, federal criminal
investigations into the corporation’s business practices, and a qui tam action
against the corporation, the court held that the shareholders presented
sufficient evidence to establish their claim that the directors could not
exercise “independent and disinterested business judgment in responding to
a demand” from the shareholders.

McCloud v. The Bd. of Dirs. of Geary Cmty. Hosp., et al.

MALPRACTICE & HIPAA

McCloud v. The Bd. of Dirs. of Geary Cmty. Hosp., et
al., No. 06-1002-MLB (D. Kan. Aug. 16, 2006)

The United States District Court for the District of Kansas
found that a hospital and other defendants (hospital) in a wrongful death
and personal injury action could meet with the plaintiff’s treating physicians
without the plaintiff or her attorney being present, if the treating physicians
consented. The plaintiff and her unborn child were involved in a motor vehicle
accident and filed a claim against the hospital for the medical care and treatment
provided. The hospital sought an order that the physician-patient privilege
had been waived, and that the hospital was entitled to interview the plaintiff’s
treating physicians without her presence or the presence of her attorney. The
court, in ruling for the hospital, found that the physician-patient privilege
does not exist when a plaintiff places her medical condition at issue. The
court also found that the Health Insurance Portability and Accountability Act
regulations were met when the hospital filed the motion seeking a court order.

 

Mbadiwe v. Union Mem’l Reg’l Med. Ctr., Inc.

Case 3:05-cv-00049 Document 19 Filed 11/28/2005 Page 1 of 9(cid:10)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:05CV49-MU

Plaintiff,

vs.

CHUKWUEMEKA F. MBADIWE, M.D.,

)
)
)
)
)
)
)
UNION MEMORIAL REGIONAL MEDICAL
CENTER, INC., CAROLINA HEALTHCARE
)
SYSTEM, INC., JOHN W. ROBERTS, ROBERT )
AUSTIN, M.D., EDWARD BOWER, M.D., and
)
)
ROBIN CONNELLEY, in their individual and
)
official capacities,
)
Defendants.
)
__________________________________________)

ORDER

This matter is before the court upon the Defendants’ Motion to Dismiss Plaintiff’s

Second Amended Complaint.1

The Plaintiff, a surgeon of Nigerian ancestry, alleges claims that arise out of medical staff

review proceedings occurring between April and July 2004 in which the hospital’s Medical

Executive Committee (“MEC”) restricted Plaintiff’s clinical privileges after he perforated a

patient’s colon during a colonoscopy. Plaintiff alleges that Defendants acted in a racially

discriminatory manner in violation of 42 U.S.C. §§ 1981 and 1985(3) and are guilty of

intentional infliction of emotional distress and defamation. Defendants have moved to dismiss

all Plaintiff’s claims pursuant to Rule 12(b)(6) except for his claim under 42 U.S.C. § 1981

against Defendants Union Memorial Regional Medical Center, Inc. and Roberts.

Plaintiff’s Second Amended Complaint removes Carolina Healthcare System, Inc. as a
1
Defendant and abandons a previously alleged Claim for Relief under 42 U.S.C. § 1983.

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Plaintiff Mbadiwe became a member of the medical staff at Union Memorial Regional

Medical Center, Inc. (“UMRMC “) in May of 2003. In March of 2004, while performing a

colonoscopy, Mbadiwe perforated a patient’s colon. Mbadiwe notified the Chairman of the

UMRMC Credentials Committee of the mishap and agreed to schedule future colonoscopies with

Dr. Bower, the Chief of Surgery at UMRMC. Plaintiff alleges that Defendant Roberts

“summarily suspended” his privilege to perform endoscopic procedures, but that when Plaintiff

challenged the suspension, a subcommittee of the UMRMC MEC lifted it. The decision to lift

the suspension was then affirmed by the MEC on April 21, 2004.

Mbadiwe claims that on June 21, 2004, operating room staff refused to schedule a surgery

for him pursuant to a memorandum from Defendant Roberts, which Plaintiff had not seen. On

July 22, 2004, Plaintiff alleges severe restrictions were placed on his surgical privileges “by the

actions of” Roberts, Austin and Bower. (Compl. ¶ 14). He claims that UMRMC based its

decision to restrict his privileges on notes regarding his surgical skills and performance made by

operating room staff members at the direction of Dr. Austin. Mbadiwe contends that white

surgeons have experienced similar mishaps but have not had their privileges restricted.

In considering a motion to dismiss, the court must view the Complaint in the light most

favorable to the Plaintiff, and accept as true all well-pleaded allegations. Randall v. United

States, 30 F.3d 518, 522 (4 Cir. 1994). Dismissal is proper only if it appears “beyond a doubt
th

that the plaintiff can prove no set of facts in support of his claim which would entitle him to

relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

A. Section 1981 Claim:

Plaintiff alleges that the actions of the Defendants in restricting his surgical privileges

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were racially motivated and had the effect of denying him the right to make and enforce a

contract, in violation of 42 U.S.C. § 1981. Defendant Connelley, a nurse, argues that she is

entitled to a dismissal of this claim as against her because she had no supervisory authority over

Plaintiff, a surgeon, nor could she participate in the deliberations or decision of the MEC to

restrict Mbadiwe’s surgical privileges.

Section 1981 does not does not create grounds for a cognizable claim against a co-

worker. Hodges v. Washington Tennis Serv. Int’l, 870 F. Supp. 386, 387 (D.D.C. 1994).

However, individuals may be liable under section 1981 when they “authorize, direct, or

participate in” a discriminatory act. Manuel v. International Harvester Co., 502 F. Supp. 45, 50

(N.D.Ill. 1980). One must have “played some active role” in order to trigger liability. Carter v.

O’Hare Hotel Investors, 1990 WL 36833, *6-7 (N.D.Ill. 1990). In Carter, for example, the court

allowed a plaintiff to maintain a section 1981 claim against one manager who participated in the

decision to fire her but granted summary judgment to a second manager where there was only

“indirect evidence of [his] involvement.” Id.

Plaintiff does not allege herein that Connelley, a nurse, played any role in the decision to

restrict his privileges or that she had the authority to participate in that decision. At most,

Plaintiff alleges that Connelley is a co-worker who provided information to a decision-making

body. This is insufficient to state a claim against her under section 1981.

Individual defendants Austin and Bower also claim that they are entitled to a dismissal of

Plaintiff’s §1981 claim against them because, as members of the MEC and participants in the

medical review process, they are immune from suit under North Carolina’s Hospital Licensure

Act, N.C.Gen.Stat. § 131E-75 et seq. Under this statute, “[a] member of a duly appointed

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medical review committee who acts without malice or fraud shall not be subject to liability for

damages in any civil action on account of any act, statement or proceeding undertaken, made or

performed within the scope of the functions of the committee.” N.C.Gen.Stat. §131E-95(a)

(emphasis added). Plaintiff’s Second Amended Complaint alleges that “[d]efendants’ actions

denying Plaintiff the right to make or enforce a contract were willful and malicious . . .” (Compl.

¶ 21). Thus, the Plaintiff has stated a claim against these Defendants.

B. Section 1985(3) Claim:

Section 1985(3) provides a cause of action where two or more persons conspire to

interfere with an individual’s civil rights. To prevail on such a claim, a plaintiff must prove: (1) a

conspiracy of two or more persons, (2) who were motivated by a specific class-based, invidiously

discriminatory animus, to (3) deprive the plaintiff of the equal enjoyment of rights secured by the

law to all, (4) and which results in injury to the plaintiff as (5) a consequence of an overt act

committed by the defendants in connection with the conspiracy. Buschi v. Kirven, 775 F.2d

1240, 1257 (4 Cir. 1985).
th

Defendants argue that Plaintiff’s §1985(3) should be dismissed because (1) he has failed

to allege any concrete facts to support his conclusory allegation that a conspiracy existed between

the Defendants, and (2) under the intracorporate conspiracy doctrine, Plaintiff has failed to allege

a conspiracy of two or more persons.

The Fourth Circuit applies a “relatively stringent standard for establishing section 1985

conspiracies.” Simmons v. Poe, 47 F.3d 1370, 1377 (4 Cir. 1995). Under that strict standard,
th

the Fourth Circuit “has rarely, if ever found that a plaintiff has set forth sufficient facts to

establish a section 1985 conspiracy.” Id. Moreover, the Fourth Circuit has “specifically rejected

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section 1985 claims whenever the purported conspiracy is alleged in a merely conclusory

manner, in the absence of concrete supporting facts.” Id.

Upon review of Plaintiff’s Complaint, it appears to the court that Plaintiff has fallen far

short of the Fourth Circuit’s heightened pleading standard for § 1985 conspiracy claims.

Plaintiff alleges no concrete facts in support of his conclusory allegations of a conspiracy among

the Defendants.

In addition, even if Plaintiff had met the Fourth’s Circuit’s stringent pleading standard,

his § 1985 conspiracy claim would still fail because of the intracorporate conspiracy doctrine.

Under this doctrine, “it is the general rule that the acts of the agent are the acts of the

corporation.” Buschi, 775 F.2d at 1251. Accordingly, “[s]ince a conspiracy requires two
2

entities, logic dictates that it is impossible for a corporation to conspire with itself.” Turner v.

Randolph County, 912 F. Supp. 182, 186 (M.D.N.C. 1995). As the individual Defendants are all

agents of UMRMC, the intracorporate conspiracy doctrine clearly applies. The only two

exceptions to this doctrine are (1) where corporate agents had personal financial stakes in the

alleged objective of the conspiracy, Id., and (2) where the corporate agents are alleged to have

been acting outside the normal course of their corporate duties. Buschi, 775 F.2d at 1252-53.

Plaintiff attempts to place his claim within these exceptions. He argues that Defendant

Connelley acted outside the scope of her employment by observing and taking notes on

Plaintiff’s behavior, and that Defendant Bower stood to benefit personally from restriction of

Plaintiff’s privileges. However, Plaintiff’s allegations in the Complaint itself contradict his

Application of the intracorporate conspiracy doctrine is not barred by the fact that the
2
corporate agents are also being sued in their individual capacities. Buschi, 775 F.2d at 1252.

5

Case 3:05-cv-00049 Document 19 Filed 11/28/2005 Page 6 of 9(cid:10)

argument that Connelley was acting outside the scope of her employment. In paragraph 15 of the

Complaint, Plaintiff alleges that Connelley and other members of the operating room staff acted

in accordance with specific instructions from UMRMC and Defendant Austin. Specifically,

Plaintiff alleges that Connelley recorded his conduct at the direction of her employer and the

President of the Medical Staff. Thus, the conclusory statement that Connelley was acting outside

the scope of her employment fails to establish this particular exception to the intracorporate

conspiracy doctrine.

Plaintiff’s allegation that Bower had a personal stake in the restriction of Plaintiff’s

privileges likewise fails to bring his claims outside the intracorporate conspiracy doctrine.

Specifically, Plaintiff alleges that Bower stood to benefit from the restriction of Plaintiff’s

surgical privileges. In Oksanen v. Page Memorial Hosp., 945 F.2d 696 (4 Cir. 1991), the Fourth
th

Circuit refused to apply the “personal stake” exception under very similar circumstances. In that

case, a physician sued the hospital and various staff members after his privileges were revoked.

The defendants raised the intracorporate conspiracy doctrine as a defense. One of the defendant

physicians competed directly with the plaintiff but did not materially participate in the decision to

restrict the plaintiff’s privileges. He did, however, consult with the peer review committee that

restricted the plaintiff’s privileges. The Fourth Circuit held that the competing physician had

insufficient control over the peer review process to trigger the “personal stake” exception, stating

that when “decision-making authority . . .[is] dispersed among a number of individuals, the

personal stake exception [to the intracorporate conspiracy doctrine] is inapplicable.” Id. at 705-

06.

The allegations in Plaintiff’s Complaint again defeat his argument. He alleges only that

6

Case 3:05-cv-00049 Document 19 Filed 11/28/2005 Page 7 of 9(cid:10)

Bower wrote a letter to the MEC and consulted with the MEC. (Compl. ¶¶ 13, 21, 24, 30)

Moreover, Plaintiff does not allege that Bower actually took part in the decision to restrict his

privileges, but that Bower was on vacation when the decision was made and Bower merely

consulted with Austin by telephone. (Compl. ¶ 30). Pursuant to Oksanen, the court finds that the

“personal stake” exception to the intracorporate conspiracy doctrine is inapplicable here.

Plaintiff’s § 1985 claim is therefore barred.

C. Intentional Infliction of Emotional Distress:

The court finds that Plaintiff’s allegations in paragraphs 30 through 32 of the Second

Amended Complaint fall far short of alleging the type of “extreme and outrageous conduct”

required to state a claim under North Carolina law. Thus, this claim will be dismissed as against

all Defendants.

D. Defamation:

A claim for defamation requires that a plaintiff allege and prove that the defendant “made

false, defamatory statements of or concerning the plaintiff, which were published to a third

person, causing injury to the plaintiff’s reputation.” Smith-Price v. Charter Behavioral Health

Sys., 164 N.C. App. 349, 355, 595 S.E.2d 778, 784 (2004). In a defamation suit, “[t]he words

attributed to defendant [must] be alleged ‘substantially’ in haec verba, or with sufficient

particularity to enable the court to determine whether the statement was defamatory.” Stutts v.

Duke Power Co., 47 N.C.App. 76, 83, 266 S.E.2d 861, 866 (1980). Moreover, it is essential a

plaintiff allege when and where the allegedly defamatory statements were made. Id. In

Plaintiff’s Complaint, he alleges merely that “[d]efendants stated both orally and in writing and

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Case 3:05-cv-00049 Document 19 Filed 11/28/2005 Page 8 of 9(cid:10)

in complaints to Medical Executive Committee and other Committees and individuals that

plaintiff was engaged in dishonesty tantamount to defrauding patients.” (Compl. ¶ 38). This

allegation is wholly inadequate to state a claim for defamation.

Plaintiff also alleges in his Second Amended Complaint that Defendant Connelley wrote

a letter on June 25, 2004 that stated in part: “[Mbadiwe’s] patients do not understand that another

physician is actually providing the care. My staff and I feel that this is dishonest. Patients are

referred to him by their medical doctor and have no idea that he has restricted privileges.”

(Emphasis added) (Compl. ¶ 36). This statement cannot as a matter of law provide the basis for a

defamation claim. The statement is not actionable because it is one of opinion and is not

“provable as false.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990).

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Third,

Fourth, and Fifth Claims for Relief is hereby GRANTED; Defendant Connelly’s Motion to

Dismiss Plaintiff’s First Claim for Relief against her is hereby GRANTED; and Defendants

Austin and Bower’s Motion to Dismiss Plaintiff’s First Claim for Relief against them is hereby

DENIED. Thus, the only remaining claim is Plaintiff’s First Claim for Relief as against

Defendants UMRMC, Roberts, Austin, and Bowers.

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Case 3:05-cv-00049 Document 19 Filed 11/28/2005 Page 9 of 9(cid:10)

Signed: November 28, 2005

9

McAllen Medical Center, Inc. v. Cortez

McAllen Medical Center, Inc. v. Cortez,
No. 00-0710 (Tex. March 21, 2001)

A patient initiated a class action suit against a hospital and physician, claiming
that the hospital and physician misrepresented that all of the hospital’s cardiac
surgeons were board certified. The patient and the physician reached a settlement
and they jointly moved to certify a class for the purposes of approving the
settlement. The hospital objected to the proposed class. The trial court dismissed
these objections ruling that the hospital did not have standing to challenge
the proposed class. The Supreme Court of Texas reversed the trial court’s ruling
and allowed the hospital to challenge the class action.

Mawulawde v. Bd. of Regents of the Univ. Sys. of Ga.

PEER REVIEW PRIVILEGE
Mawulawde v. Bd. of Regents
of the Univ. Sys. of Ga.(S.D. Ga. Feb. 7, 2008)

The United States District Court for the Southern District of Georgia reopened
a case that had been put on hold while the United States Supreme Court heard
the appeal of a case that raised similar issues (discovery of peer review materials).
The Supreme Court denied certiorari in that case, thus upholding an
Eleventh Circuit decision permitting the discovery of peer review materials
during the course of certain lawsuits, such as this suit brought by a physician,
Dr. Mawulawde, against the Board of Regents of the University System of
Georgia ("Board of Regents"). In response to the physician’s motion
to compel records for discovery, the Board of Regents provided 25,000 pages
of peer review documents for the physician’s inspection in a conference room
and asked that the physician "flag" those documents he wished to
have photocopied. The physician argued that he should not have to disclose
which documents he wished to have photocopied, since that disclosure could
be categorized as "the highly-protected category of opinion work product." The
district court disagreed and concluded that the Board of Regents’ request was
reasonable and did not "impose an undue burden nor in any way prejudice
[the physician’s] ability to conduct meaningful discovery."

Mbadiwe v. Union Mem’l Reg’l Med. Ctr., Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:05CV49-MU

Plaintiff,

vs.

CHUKWUEMEKA F. MBADIWE, M.D.,

)
)
)
)
)
)
UNION MEMORIAL REGIONAL MEDICAL
)
CENTER, INC., JOHN W. ROBERTS, ROBERT )
)
AUSTIN, M.D., and EDWARD BOWER, M.D.,
in their individual and official capacities,
)
)
)
Defendants.
__________________________________________)

ORDER

This matter is before the court upon the Defendants’ Motion for Summary Judgment.

The court has reviewed the briefs and the evidence submitted by the parties.

The Plaintiff, a black male doctor of Nigerian ancestry, filed this lawsuit after his

privileges were restricted at Defendant Union Memorial Regional Medical Center (“UMRMC”).

He alleges that these actions were racially motivated and originally filed suit under 42 U.S.C. §§

1981 and 1985(3), and, in addition, alleged claims of intentional infliction of emotional distress

and defamation. In its Order of November 28, 2005, the court dismissed all of Plaintiff’s claims

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, except for his §1981 claim

against Defendants UMRMC, Roberts, Austin, and Bower. Discovery has been completed and

these Defendants now move for summary judgment in their favor on Plaintiff’s remaining claim.

Summary judgment is proper where “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits, if any, show that there is no

1

genuine issue as to any material fact and that the moving party s entitled to summary judgment as

a matter of law.” Fed. R. Civ. P. 56(c). To avoid summary judgment, a plaintiff must introduce

evidence to create an issue of material fact on an element essential to his case as to which he will

bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the

plaintiff fails to “make a sufficient showing on an essential element of [his] case with respect to

which [he] has the burden of proof,”then “the plain language of Rule 56(c) mandates the entry of

summary judgment.” Id. A plaintiff may not rest on mere allegations or denials, but rather must

demonstrate that a triable issue of fact exists. Shaw v. Stroud, 13 F.3d 791, 798 (4 Cir. 1994).
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“A mere scintilla of evidence supporting the case is insufficient.” Id. A party may not create a

genuine issue of material fact “through mere speculation or the building of one inference upon

another.” Beale v. Hardy, 769 F.2d 213, 214 (4 Cir. 1985).
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The same legal analysis applicable to Title VII cases governs race discrimination claims

under § 1981. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4 Cir.
th

2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1431 (2006). To establish a prima facie case of

racial discrimination where there is no direct evidence of discrimination, the Plaintiff must prove

that: (1) he is a member of a protected class; (2) he was qualified for medical staff privileges and

his job performance was satisfactory; (3) he suffered an adverse contract-related action; and (4)

similarly situated physicians who were not members of the protected class received more

favorable treatment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If

Plaintiff is able to establish a prima facie case, the Defendant must articulate a legitimate,

nondiscriminatory reason for restricting Plaintiff’s privileges. Plaintiff must then demonstrate

that the proferred reason is a pretext from which a factfinder may infer that the reason was illegal

2

discrimination. Rowe v. Marley Co., 233 F.3d 825, 830 (4 Cir. 2000).
th

Despite the lengthy briefs and voluminous exhibits, this case is really quite simple and

can be summarized as follows: Plaintiff’s medical staff privileges were restricted by Defendant

UMRMC after Plaintiff exhibited severe deficiencies in surgical skills and medical judgment.

There is overwhelming evidence that Plaintiff was not qualified to hold surgical privileges

despite his self-serving, unsupported beliefs and opinions to the contrary. Despite the allegation
1

in his Complaint that similarly situated white physicians were treated more favorably, Plaintiff

has failed to come forward with any competent evidence to support this allegation. He identifies

only one alleged comparator, Dr. Bower, but utterly fails to meet his burden to demonstrate that

Dr. Bower was “similarly situated in all relevant respects” and that his alleged acts were of

“comparable seriousness” to his own infractions. See Lanear v.Safeway Grocery, 843 F.2d 298

(8 Cir. 1988). Rumors, conclusory allegations and a plaintiff’s subjective beliefs about the
th

conduct of allegedly ‘similarly situated’ individuals ‘are wholly insufficient evidence to establish

a claim of discrimination as a matter of law.’” Adkins v. Hospital Authority of Houston County,

2006 WL 1174446 at *8 (M.D.Ga. May 2, 2006) (quoting Mitchell v. Toledo Hospital, 964 F.2d

577 (6 Cir. 1992)).
th

Defendants have proffered a legitimate nondiscriminatory basis for the decision to restrict

Plaintiff’s privileges. This basis is entitled to considerable deference in light of the significant

public interest in promoting the health and safety of patients and the potentially grave

consequences of allowing unqualified physicians to perform medical procedures. See Baquir v.

As a matter of law, Plaintiff’s unsupported beliefs that his performance was satisfactory
1
are insufficient to establish a claim of discrimination and create a genuine issue of fact. See
Greene v. Swain County Partnership for Health, 342 F.Supp.2d 442, 452 (W.D.N.C. 2004).

3

Principi, 434 F.3d 733, 742 (4th Cir. 2006) (stating that a hospital’s assessment of a physician’s

capabilities “is not one which we are inclined to impugn.”). Plaintiff has failed to demonstrate

that the legitimate nondiscriminatory reasons given by the Defendants for their actions are

pretextual. Most importantly, however, Plaintiff has simply failed to come forward with a shred

of evidence that the Defendants’ actions were racially motivated other than his own speculation.

In light of the forgoing, it is abundantly clear that Plaintiff has failed to raise a genuine issue of

material fact and that judgment in favor of the Defendants is appropriate.

IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment is

hereby GRANTED.

Signed: April 24, 2007

4

Mattar v. Community Mem. Hosp.

EMPLOYMENT DISCRIMINATION

Mattar v. Community Mem.
Hosp., No. 1:04 CV 095 (N.D. Ind. Feb. 22, 2006)

The United States District
Court for the Northern District of Indiana granted a hospital’s motion for
summary judgment in an employment discrimination case, finding that a physician
had failed to produce any evidence that a hospital had fired him for discriminatory
reasons. The hospital terminated the physician’s employment for (1) waiving
patient co-payments and deductibles in violation of hospital policy and (2)
directing nurses to take x-rays, which was outside their scope of practice.
The physician claimed that he had been terminated based on his nationality
and religion. The court noted that "[t]he best evidence
[the physician] has is an unsupported suspicion." Moreover, in response
to the physician’s allegations that he had not violated hospital policy by
waiving patient deductibles and co-payments, and that consequently his termination
violated Title VII of the Civil Rights Act, the court observed that "[the
physician] must show more than simply a wrong decision by [the hospital]. Title
VII is not violated by a bad decision; it is violated by a discriminatory one."

 

 

McBroom v. Graybeal

McBroom v. Graybeal,
No. 99C-02-208-CHT (Del. Super. Ct. March 31, 2000)

Malpractice plaintiff sought physician defendant’s
applications for clinical privileges, a letter concerning reappointment, and a
memorandum concerning monitoring and evaluation/quality assessment and
improvement. The Superior Court of Delaware denied the patient’s motion to
compel production of the documents, reasoning that they are records within the
meaning of the Delaware peer review statute, that the information provided to
the review committee by the doctor is protected, and that there was no showing
that the privilege associated with the letter and memorandum was waived.