Lo v. Provena Covenant Medical Center (Full Text)

NO. 4-04-0362

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

ADOLF LO, M.D.,
Plaintiff-Appellant,
v.
PROVENA COVENANT MEDICAL CENTER, a
Corporation,
Defendant-Appellee.

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Appeal from
Circuit Court of
Champaign County
No. 02L275

Honorable
Michael Q. Jones,
Judge Presiding.

JUSTICE APPLETON delivered the opinion of the court:

Plaintiff, Adolf Lo, M.D., sued defendant, Provena Covenant Medical Center, for
breach of contract. He alleged defendant had violated the medical-staff bylaws
(bylaws) by restricting his clinical privileges without granting him a hearing.

Soon after the filing of the complaint, defendant took a more severe corrective
action, summarily suspending plaintiff’s clinical privilege to perform open-heart
surgery. Plaintiff moved for an order temporarily restraining defendant from
enforcing the suspension. The trial court granted the motion, defendant
appealed, and we reversed the temporary restraining order. Lo v. Provena
Covenant Medical Center, 342 Ill. App. 3d 975, 796 N.E.2d 607 (2003), appeal
denied, 207 Ill. 2d 605, 807 N.E.2d 976 (2004).

On remand, defendant filed a motion to dismiss the complaint with prejudice
pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-
619(a)(9) (West 2002)). Defendant relied on two affirmative grounds for
dismissal: (1) its immunity under section 10.2 of the Hospital Licensing Act (Act)
(210 ILCS 85/10.2 (West 2002)) and (2) our previous decision in this case. The
trial court granted the motion, and plaintiff appeals.

The complaint seeks two kinds of relief: an injunction and damages. The prayer
for an injunction is moot, and section 10.2 of the Act bars an award of damages.
Therefore, we affirm the judgment.

I. BACKGROUND

In his complaint, which he filed on December 3, 2002, plaintiff alleges he is a
licensed physician specializing in cardiovascular surgery. For many years, he
has had the clinical privilege to perform cardiovascular surgery at defendant’s
hospital and its predecessor institutions. On or around September 25, 2002,
defendant allegedly violated the bylaws by “reduc[ing] and restrict[ing] [plaintiff’s]
medical[-]staff privileges without granting him the right to a hearing.” Defendant
thereby damaged him financially and harmed his medical practice and
professional reputation. In conjunction with his prayer for damages, he
demanded a trial by jury. He also prayed for an order “immediately enjoining
[d]efendant *** from continuing to reduce and restrict [his] privileges in violation of
the [b]ylaws.”

On February 17, 2003, plaintiff filed a motion for a temporary restraining order
and preliminary injunction. See 735 ILCS 5/11-101 (West 2002). In his motion, he
alleged that on February 15, 2003, defendant summarily suspended his clinical
privilege to perform open-heart surgery. He attached to his motion a letter he had
received from defendant’s chief executive officer and president. The letter said
the suspension was due to “significant quality concerns *** as reflected in the
November 27, 2001, external [cardiovascular] peer review.” Plaintiff argued that
because neither the chair of a department, the president of the medical staff, nor
an officer of the medical staff had recommended the summary suspension,
defendant lacked the power to impose it under the bylaws. The trial court agreed
with plaintiff and entered an order temporarily restraining defendant from
suspending his clinical privileges “until such time as [defendant] compli[ed] with
[the bylaws].”

We reversed the temporary restraining order, holding that because an
independent peer review had raised concerns about the quality of plaintiff’s
cardiovascular services and the medical staff had failed or refused to make a
recommendation one way or the other, defendant’s board of directors, the entity
ultimately responsible for the quality of care, had the inherent authority to
summarily suspend plaintiff’s clinical privilege in order to prevent an imminent
danger to patients. Lo, 342 Ill. App. 3d at 985, 796 N.E.2d at 615.

On October 22, 2003, on remand, defendant filed its motion to dismiss the
complaint with prejudice pursuant to section 2-619(a)(9). Defendant asserted two
grounds for dismissal: (1) its immunity under section 10.2 of the Act (210 ILCS
85/10.2 (West 2002)) and (2) our statement in Lo, 342 Ill. App. 3d at 987, 796
N.E.2d at 617, that the summary suspension had violated no bylaw. The trial
court granted the motion.

This appeal followed.

II. ANALYSIS

A. Standard of Review

A motion to dismiss under section 2-619(a)(9) raises “affirmative matter avoiding
the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2002).
Rather than negate the essential facts of the cause of action, a section 2-619
motion admits those facts, and we take them to be true along with any
reasonable inferences one could draw in the plaintiff’s favor. In re Estate of
Krevchena, 244 Ill. App. 3d 160, 164, 614 N.E.2d 74, 77 (1993). Thus, we accept
as true the factual allegation that defendant restricted plaintiff’s clinical privileges
without granting him a hearing. A section 2-619 motion also admits the legal
sufficiency of the complaint. Kedzie & 103rd Currency Exchange, Inc. v. Hodge,
156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993). Applying a de novo standard of
review, we ask a question designed to give the plaintiff the benefit of the doubt: is
it clear that the affirmative matters bar any possible recovery premised on the
admitted facts of the complaint? Thornton v. Shah, 333 Ill. App. 3d 1011, 1018-
19, 777 N.E.2d 396, 403 (2002).

B. Request for an Injunction

Defendant argues this appeal is moot. We have subject-matter jurisdiction over
this appeal only if an actual, live controversy still exists between the parties, as
opposed to an abstract or hypothetical controversy that the parties are no longer
in a position to care about. See In re Andrea F., 208 Ill. 2d 148, 156, 802 N.E.2d
782, 787 (2003); In re A Minor, 127 Ill. 2d 247, 255, 537 N.E.2d 292, 295 (1989).
An appeal is moot if an intervening event has made it impossible for us to grant
effectual relief. A Minor, 127 Ill. 2d at 255, 537 N.E.2d at 295.

According to defendant, three events have made this appeal moot. The first
event was plaintiff’s alleged agreement to the restrictions of which he complains.
Defendant confuses the merits of a case with the situation in which a case
becomes moot. Plaintiff alleges in his complaint that on or around September 25,
2002, defendant involuntarily restricted his clinical privileges. Defendant denies
doing so and insists that plaintiff agreed to the restrictions as an alternative to
defendant’s imposing them involuntarily (with a resulting report to the National
Practitioner Data Bank (see 42 U.S.C. §11133(a)(1)(A) (2000))). That sounds to
us like an actual controversy. Instead of pointing to an intervening event (see In
re Marriage of Deem, 328 Ill. App. 3d 453, 455, 766 N.E.2d 661, 662 (2002)),
defendant points to evidence that, in defendant’s view, rebuts an essential fact in
the complaint. Evidence favoring one side of a controversy and disfavoring the
other does not negate the existence of the controversy. If the claim turns out to
be untrue, the proper disposition will be not to dismiss the claim as moot but to
enter a judgment on the merits in defendant’s favor.

The other two events, by contrast, are intervening and factually undisputed. In
February 2003, defendant summarily suspended plaintiff’s privilege to perform
open-heart surgery. Also, in January 2004, after the (suspended) privilege
expired, plaintiff applied for its renewal, and defendant denied the application.
The bylaws required plaintiff to request a hearing before the hearing committee

within 30 days after receiving notification of any adverse decision on his clinical
privileges. Because plaintiff missed the deadlines for requesting hearings on the
summary suspension and the nonrenewal, defendant argues he has “waived” his
right to a hearing on either decision. “There is no point in litigating whether
plaintiff should have a supervising cardiac surgeon,” defendant argues
(supervision of his surgeries was one of the restrictions), “because there will be
no surgery to supervise.”

Plaintiff argues the 30-day period for requesting a hearing never started running
with respect to either the summary suspension or the nonrenewal because each
time defendant made an adverse decision regarding his clinical privileges, the
bylaws required the chief executive officer to serve a notice upon him by certified
mail. The bylaws also prescribed the contents of the notice. After the summary
suspension and also after the nonrenewal, defendant either failed to serve a
notice upon him by certified mail or the notice lacked all the prescribed contents.
Plaintiff argues that until defendant complies with the procedural requirements of
the bylaws with respect to notice, the 30-day clock for requesting a hearing does
not begin to run.

Putting the summary suspension and the nonrenewal in brackets, in a purely
theoretical way, really does not address defendant’s argument. A court cannot
sensibly order defendant to lift the restrictions from a clinical privilege that no
longer exists. If, because of a nonrenewal that plaintiff does not challenge in this
lawsuit, the privilege to perform cardiovascular surgery has vanished altogether,
so have the restrictions of that privilege. “A case on appeal [becomes] moot
where ‘the issues involved in the trial court no longer exist’ ***.” A Minor, 127 Ill.
2d at 255, 537 N.E.2d at 295, quoting La Salle National Bank v. City of Chicago,
3 Ill. 2d 375, 378-79, 121 N.E.2d 486, 488 (1954). The complaint frames the
issues for the court and circumscribes the relief it can award (Health Cost
Controls v. Sevilla, 307 Ill. App. 3d 582, 587, 718 N.E.2d 558, 562 (1999)). In his
complaint, plaintiff challenges only the restrictions of September 2002, not the
summary suspension of February 2003 or the nonrenewal of January 2004. The
complaint requests an order “enjoining *** [defendant] from continuing to reduce
and restrict [plaintiff’s] privileges.” One must understand that prayer, however, in
the context of the complaint: as referring only to the September 2002 restrictions,
not the summary suspension or the nonrenewal, neither of which the complaint
mentions. In the present posture of the pleadings, the prayer for an injunction is
moot.

C. Request for Damages

According to defendant, an injunction is the only permissible remedy for plaintiff’s
cause of action, and because the prayer for an injunction is moot, the case is
moot in its entirety. Defendant denies that the bylaws created a contract between
defendant and plaintiff and, therefore, denies the right to damages for any

violation of the bylaws. We hold that the bylaws did indeed create a contract
between plaintiff and defendant.

Although defendant admits that procedures in bylaws are enforceable by
injunction, defendant does not explain under what legal theory one could enforce
them if not under a theory of contract. The rule of limited judicial review, whereby
we review the reductions of clinical privileges only for procedural compliance with
the bylaws (Knapp v. Palos Community Hospital, 176 Ill. App. 3d 1012, 1018-19,
531 N.E.2d 989, 993 (1988)), presupposes that the bylaws are enforceable under
some recognized theory of the common law. We have held that the constitution
or bylaws of a voluntary association, such as a trade union, create a contract
between the association and its members. Gratz v. Cozart, 13 Ill. App. 2d 515,
517, 142 N.E.2d 833, 834 (1957). Whether bylaws are a contract does not
appear to depend on the type of voluntary association that issued them. See
State of North Dakota ex rel. Langer v. North Central Ass’n of Colleges &
Secondary Schools, 23 F. Supp. 694, 699 (E.D. Ill. 1938) (“churches, lodges[,]
and all other like voluntary associations”); see also Gratz, 13 Ill. App. 2d at 517,
142 N.E.2d at 834. Like a trade union, a medical staff is a voluntary association,
“[a]n unincorporated business organization that is not a legal entity separate from
the persons who compose it” (Black’s Law Dictionary 119 (7th ed. 1999)). Head
v. Lutheran General Hospital, 163 Ill. App. 3d 682, 693, 516 N.E.2d 921, 928
(1987). The First District has held that the bylaws of a medical staff “form part of
the contract between the association and its members.” Head, 163 Ill. App. 3d at
691, 516 N.E.2d at 927.

The bylaws in this case are entitled the “Medical[-]Staff Bylaws.” Plaintiff does
not sue the medical staff; he sues defendant. See Head, 163 Ill. App. 3d at 693,
516 N.E.2d at 928 (“Defendant [hospital] is a private institution, and its medical
staff is a voluntary association”). Considering that bylaws are a contract between
the voluntary association (in this case, the medical staff) and its individual
members (Head, 163 Ill. App. 3d at 691, 516 N.E.2d at 927), how does plaintiff
have a cause of action against defendant (the hospital) for breach of contract?
Through its board of directors, defendant formally adopted the bylaws in October
1996, the same time the medical staff adopted them. Section 18.2 of the bylaws
provides they “are legally binding upon the [m]edical [c]enter.” If, as case law
holds, the bylaws are a contract between plaintiff and the medical staff (see
Head, 163 Ill. App. 3d at 691, 516 N.E.2d at 927), defendant’s approval of the
bylaws cannot transform them into something other than a contract. By approving
the bylaws, defendant became a party to the contract.

If defendant had promised procedures that the law already required, and nothing
more, then, arguably, the preexisting-duty rule would prevent the formation of a
contract between defendant and the medical staff. See White v. Village of
Homewood, 256 Ill. App. 3d 354, 357, 628 N.E.2d 616, 618 (1993); Virmani v.
Presbyterian Health Services Corp., 127 N.C. App. 71, 76, 488 S.E.2d 284, 287-
88 (1997). No law required defendant, however, to grant plaintiff the privilege to

practice medicine in its hospital. Nor did any law require plaintiff to practice there.
Each party conferred a benefit on the other, and their mutual benefit is
consideration. See Virmani, 127 N.C. App. at 76-77, 488 S.E.2d at 288.
Defendant and the association of which plaintiff is a member agreed that certain
disciplinary procedures, many of them mandated by law (210 ILCS 85/10.4(b)(2)
(West 2002); 77 Ill. Adm. Code §250.310(c)(2) (Conway Greene CD-ROM
January 2002)), would govern plaintiff’s employment. Plaintiff seeks to enforce a
procedure that defendant promised. See Maimon v. Sisters of the Third Order of
St. Francis, 120 Ill. App. 3d 1090, 1094, 458 N.E.2d 1317, 1319 (1983).

“The principal legal remedy to enforce a promise is a judgment awarding a sum
of money.” E. Farnsworth, Farnsworth on Contracts §12.2, at 156 (3d ed. 2004).
Defendant invokes the immunity to damages in section 10.2.

In reliance on Szczerbaniuk v. Memorial Hospital for McHenry County, 180 Ill.
App. 3d 706, 536 N.E.2d 138 (1989), plaintiff argues the immunity in section 10.2
is inapplicable because defendant’s chief executive officer, who “addressed” the
restrictions, was “not a protected committee.” In Szczerbaniuk, 180 Ill. App. 3d at
708-09, 536 N.E.2d at 140, a hospital’s chief executive officer terminated the
plaintiff’s radiology service agreement on the ground that he had sexually
harassed hospital employees. It was unclear whether the hospital’s executive
committee had authorized this disciplinary action. Szczerbaniuk, 180 Ill. App. 3d
at 709, 536 N.E.2d at 140. The Second District stated: “Insofar as section 10.2
clearly contemplates action by committees, we are hesitant to apply it to
immunize conduct of an individual acting only pursuant to an informal delegation
of authority by an uninformed committee.” Szczerbaniuk, 180 Ill. App. 3d at 710-
11, 536 N.E.2d at 141. Szczerbaniuk is distinguishable because after its
issuance, the General Assembly amended section 10.2 by adding the words “or
individual,” thereby extending the immunity to acts or omissions of any individual
who has the purpose of internal quality control (Pub. Act 91-448, §5, eff. July 1,
1999 (1999 Ill. Laws 5402, 5402))–a purpose the chief executive officer in this
case apparently had, to judge from the correspondence that both parties cite.

Section 10.2 now provides:

“[N]o hospital *** shall be liable for civil damages as a result of the acts,
omissions, decisions, or any other conduct, except those involving wilful or
wanton misconduct, of *** any *** committee or individual whose purpose,
directly or indirectly, is internal quality control ***, or for the purpose of
professional discipline ***. *** For the purposes of this [s]ection, ‘wilful and
wanton misconduct’ means a course of action that shows actual or deliberate
intention to harm or that, if not intentional, shows an utter indifference to or
conscious disregard for a person’s own safety and the safety of others.”
(Emphasis added.) 210 ILCS 85/10.2 (West 2002).

If we were applying the ordinary definition of “wilful and wanton misconduct”–i.e.,
great carelessness or gross negligence–it would be a question of fact whether
defendant’s alleged conduct met that definition. Plaintiff alleges that defendant
involuntarily restricted his clinical privileges without giving him a chance to be
heard, thereby violating not only the bylaws but also statutory law (see 210 ILCS
85/10.4(b)(2)(C) (West 2002)). Considering the grave implications that
involuntary restrictions could have for plaintiff’s career, a jury could, at a
minimum, find such an omission to be

careless. “Under the facts of [a] case, willful and wanton misconduct may be only
degrees more than ordinary negligence ***.” Ziarko v. Soo Line R.R., 161 Ill. 2d
267, 275, 641 N.E.2d 402, 406 (1994). Locating the “thin line” between
carelessness and great carelessness (Ziarko, 161 Ill. 2d at 275, 641 N.E.2d at
406) would be a job for the trier of fact. Doe v. Calumet City, 161 Ill. 2d 374, 390,
641 N.E.2d 498, 506 (1994).

In this case, however, we are dealing not with the ordinary meaning of “wilful and
wanton misconduct” but with a statutory definition. “In construing statutes the
ordinary, usual[,] and commonly accepted definitions of the words employed
therein are to be taken as the correct definitions of such words, unless the statute
gives special definitions to the contrary ***.” (Emphasis added.) Wahlman v. C.
Becker Milling Co., 279 Ill. 612, 622, 117 N.E. 140, 144 (1917). Plaintiff has
alleged no facts, and has offered no evidence, from which we could reasonably
infer that defendant “actual[ly] or deliberate[ly] inten[ded] to harm” him. See 210
ILCS 85/10.2 (West 2002). His “own safety” was never at issue in this case. See
210 ILCS 85/10.2 (West 2002). Because plaintiff’s cause of action does not fit
within the specialized definition of “wilful and wanton misconduct” in section 10.2,
the statute bars him from recovering damages for defendant’s breach of contract.

A court has discretion to order the specific performance of a contract if “perfect
justice cannot be done at law.” Dixon v. City of Monticello, 223 Ill. App. 3d 549,
561, 585 N.E.2d 609, 618 (1991). If, as it appears, section 10.2 immunizes
defendant from damages for breaching its contract with plaintiff, perfect justice
cannot be done at law, and a court should at least be able to order defendant to
perform the contract. As we have held, however, the prayer for an injunction is
moot.

For the foregoing reasons, we affirm the trial court’s judgment.

III. CONCLUSION

Affirmed.

TURNER and STEIGMANN, JJ., concur.

Locke v. Hewitt

Worker’s Compensation Act

Locke v. Hewitt,
No. 90,744 (Kan. Ct. App. Feb. 20, 2004)

The Court of Appeals of Kansas held that a nurse’s aide who
suffered on-the-job injuries while moving a patient could not maintain a malpractice
claim against the ER physician who treated her injuries because the two were
"co-workers." Kansas law provides that an injured worker who can recover
benefits under the Workers’ Compensation Act cannot sue his or her employer
and co-employees for negligence. The aide argued that the ER physician was not
an employee of the hospital since he was providing services to the hospital
as an independent contractor. The court found the ER physician to be an employee,
however, pursuant to the definition of "employee" found in the Workers’
Compensation Act.

 

 

Logan v. Empire Blue Cross and Blue Shield

Logan v. Empire Blue Cross and Blue Shield,
No. 1999-04253, 1999-04254 (N.Y. App. Div. October 10, 2000)

Empire Blue Cross and Blue
Shield had established a preauthorization process and set forth specific standards
to confirm the diagnosis of Lyme’s Disease. This policy also included treatment
protocols. The policy was then updated from time to time in response to the
latest research on the disease. Empire’s policy determined that there was no
medical/scientific basis for a course of antibiotic therapy for Lyme’s Disease
in excess of 30 days, except under certain specified circumstances. The plaintiffs
in this case had submitted medical bills to Empire during the course of treatment
for Lyme’s Disease. At one point or another, Empire paid those claims. However,
eventually, Empire, citing its policy on Lyme’s Disease, refused to provide
further coverage for the plaintiffs’ intravenous antibiotic treatment. The plaintiffs
then sued Empire, claiming that Empire’s denials were a breach of contract and
a bad faith denial of coverage. The plaintiffs also alleged that Empire’s denial
of coverage constituted a tort claim that was independent of its alleged breach
of contract. The New York Supreme Court, Appellate Division refused to permit
the plaintiffs to transform a breach of contract claim against Empire into an
independent tort claim. The Court then dismissed any claim not directly related
to the plaintiffs’ breach of contract claim.

Little v. St. Paul Mercury Ins. Co.

DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CA01-771

February 6, 2002

DONNA LITTLE AN APPEAL FROM GARLAND

APPELLANT COUNTY CIRCUIT COURT

[CIV00-553-I]

V. HON. JOHN HOMER WRIGHT, JUDGE

ST. PAUL MERCURY

INSURANCE COMPANY

APPELLEE AFFIRMED

Donna Little, the sister of David Rosborough, deceased, appeals as special administrator of his estate. David committed suicide while in the Leo N. Levi Memorial Hospital (hospital) in Hot Springs, Arkansas. Appellant originally filed a medical malpractice action against the hospital. She later substituted St. Paul Mercury Insurance Company (appellee), the insurance carrier for the hospital, as the defendant, due to the hospital’s immunity from suit as a non-profit entity. Appellee filed a motion for summary judgment, asserting that the claim was barred by the statute of limitations. Appellant countered that the statute of limitations was tolled due to the hospital’s fraudulent concealment of the facts surrounding David’s death. The trial court granted appellee’s motion for summary judgment. Appellant now argues that the trial court erred in granting summary judgment because genuine issues of material fact remained concerning whether thehospital engaged in fraudulent concealment. We disagree and affirm.

David was admitted to the psychiatric ward of the hospital on August 17, 1995. Because he was admitted due to a suicide attempt, he was placed on fifteen-minute checks. It is undisputed that David was last checked at 9:15 p.m. on August 19. He was found asphyxiated in his room at 10:45 p.m. that same evening.

Appellant, a resident of Pennsylvania, traveled with her parents to Arkansas in October 1995. During that visit, appellant spoke with the hospital’s administrator, Patrick McCabe, and received copies of David’s medical records, which clearly indicated that the fifteen-minute checks had not been conducted as ordered. She suspected that her brother, a former employee of the hospital, had been killed, and inquired about the cause of his death. McCabe allegedly told her that the hospital had done everything it could for David. At the time of the meeting, appellant was aware that the fifteen-minute checks had not been conducted as ordered and she asked McCabe why the checks had not been conducted as ordered. According to appellant, McCabe responded that he would have to check with the staff.

McCabe failed to reveal to appellant that two hospital employees, Cynthia Erskine and Louise Jimmerson, had been terminated on August 24, 1995, because they failed to perform the fifteen-minute checks on David, for their failure to direct patient care by following physician’s orders, and for their failure to appropriately utilize nonlicensed staff in delivering patient care. Erskine was also an attending nurse for another person who committed suicide two months before David died. She subsequently filed a lawsuit againstthe hospital for wrongful discharge. In its pretrial brief, filed on March 22, 1999, the hospital cited Erskine’s failure to perform fifteen-minute observation checks among the several reasons for termination.

During appellant’s October 1995 visit, she also spoke with an unidentified supervisor or nurse at the hospital who called appellant’s brother, Ronald Rosborough. Appellant stated in her deposition that the nurse said that "it should not have happened that way" and that David was not the first person to whom "that" had happened. During the October 1995 visit, appellant also spoke with a Detective Cotton. He told her that she should do something because it, meaning David’s death, should not have happened, and that "[t]his is not the first one." Shortly after David’s death, appellant also read an article in a local newspaper. The article stated that David was found at approximately 10:45 p.m. by a hospital employee who said she that she last checked on him at 9:15 p.m.

Appellant first consulted an attorney after her visit to Hot Springs, and consulted three more attorneys in 1996. Although she presented them with all of the information she had, including David’s medical records, none of them ever filed suit.

Appellant received an anonymous letter in April 1999, informing her that Erskine and Jimmerson had been terminated due to David’s death. The letter also informed her of the newspaper article that she had already seen. The letter further informed her 1) of litigation in which the hospital asserted that the reasons for Erskine’s termination were incompetence, inefficiency, or negligence; 2) that an ongoing investigation by the hospital was being conducted during her visit in October 1995; 3) that another prior suicide occurred in thesame ward two months prior to her brother’s death; and 4) that hospital staff were "definitely responsible" for her brother’s death. The letter also stated that she might have a problem regarding the statute of limitations, informed her of certain memos sent during the course of the hospital’s internal investigation, and provided her with David’s peer review number, relating to the hospital’s in-house review of his treatment.

We hold that the trial court did not err in granting summary judgment in favor of appellee. Summary judgment should be granted only when a review of the pleadings, depositions, and other filings reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Johnson v. Arthur, 65 Ark. App. 220, 986 S.W.2d 874 (1999). When the movant makes a prima facie showing of entitlement, the respondent must meet proof with proof by showing a genuine issue as to a material fact. See id. In reviewing the grant of a motion for summary judgment, we review the facts in the light most favorable to the appellant and resolve any doubt against the moving party. See id. Summary judgment is not proper where evidence reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. See id. We need only decide if the granting of summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of a motion left a material question of fact unanswered.  See id.

All actions for medical injury shall be commenced within two years after the cause of action accrues. See Ark. Code Ann. § 16-114-203(a)(Supp. 2001). The date of accrual of the cause of action is the date of the wrongful act. See Ark. Code Ann. § 16-114-203(b). It is undisputed that the suit in this case was brought well after the two-year statute of limitations period had expired. However, pursuant to common law, where affirmative acts of concealment by a person charged with fraud prevent discovery of misrepresentations, the limitations period will be tolled until the fraud is discovered or should have been discovered with the exercise of reasonable diligence. See Norris v. Baker, 320 Ark. 629, 899 S.W.2d 70 (1995). When the running of the statute of limitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. See Smith v. St. Paul Fire & Marine Ins. Co., 76 Ark. App. 264, 61 S.W.3d 231 (2001). If it is clear from the face of the complaint that the action is barred by the applicable limitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of limitations was in fact tolled. See id. Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve the fact issue as a matter of law. See id.

Because this case arises from a summary judgment motion, the issue is whether there remain any genuine issues of material fact with regard to whether the statute of limitations should be tolled. The resolution of this issue turns on whether McCabe’s statements rose to the level of fraudulent concealment. Under Arkansas law, no mere ignorance on the part of the plaintiff of his rights, nor the mere silence of one who is under no obligation to speak, will prevent the statute of limitations from running. See Norris v. Baker, supra.

Accepting the evidence in the light most favorable to appellant, as the nonmovingparty,1 the evidence supports that appellant visited McCabe with the stated purpose to discover the cause of her brother’s death because she suspected that he had been murdered. She informed McCabe of her suspicions during their face-to-face meeting. She also asked McCabe why proper checks were not conducted. McCabe responded that he would have to check with his staff. He also told her that David’s death was "unavoidable" and that the hospital had done everything it could for David.

McCabe’s statement went beyond a mere non-disclosure; it was an affirmative misrepresentation. However, in order to make a showing of fraudulent concealment, there must be some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff’s cause of action concealed, or perpetrated in a way that it conceals itself. See Norris v. Baker, supra.2

We agree with appellee that there was no "concealment" in this case, fraudulent or otherwise, because the hospital provided David’s medical records to appellant, and these record’s clearly indicate that the fifteen-minute checks were not conducted as ordered. Wehave previously held that the statute of limitations is not tolled due to fraudulent concealment where the alleged basis for the malpractice suit is found in the plaintiff’s medical records, which have been supplied to the plaintiff. See Smith v. St. Paul Fire & Marine Ins. Co., supra; see also Meadors v. Still, 344 Ark. 307, 40 S.W.3d 294 (2001); Shelton v. Fiser, 340 Ark. 89, 8 S.W.3d 557 (2000).

Appellant attempts to distinguish these cases on the ground that these cases did not involve an affirmative misrepresentation which deflected attention away from the hospital’s liability.3 However, the dispositive issue is not the manner in which the cause of action was revealed. That is, the dispositive issue is not the fact the appellant’s cause of action was revealed in medical records, but that because it was revealed, by whatever manner, it was not concealed.

Here, the alleged cause of action was apparent from David’s records, which were undisputedly supplied to appellant in October 1995. Neither McCabe’s misrepresentation that the hospital did all they could nor the fact that McCabe failed to disclose confidential personnel information concerning the termination of Jimmerson and Erskine4 in any way concealed appellant’s cause of action, as is evidenced by the fact that she sought the advice of four attorneys in the year following David’s death – after McCabe’s misrepresentation to her. Consequently, she is hard pressed to argue that a genuine issue of fact remains that her cause of action was concealed.

Thus, we agree that there were no issues of material fact with regard to whether McCabe’s misrepresentation constituted fraudulent concealment and hold that the trial court did not err in denying appellee’s motion for summary judgment.

Affirmed.

Hart and Vaught, JJ., agree.

1 Although during the hearing on the motion for summary judgment, appellee’s attorney argued that McCabe denied making those representations to appellant, there is no deposition by McCabe in the record to support this assertion.

2 Appellant argues that the misrepresentation in this case is analogous to the affirmative misrepresentation as discussed in Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998) (a consolidated suit involving numerous plaintiffs), in which the doctor told plaintiff Darlene Kinder that the material to be used in a surgical procedure was not experimental. The Adams court reversed the grant of summary judgment, finding that such a statement went beyond a mere representation regarding efficacy and constituted a fact question as to fraudulent concealment. Even though we agree that there was an affirmative misrepresentation in this case, we disagree that it was analogous to the representation made to the Kinder plaintiff.

3 To support this argument, appellant cites Martinez v. Cooper Hosp.-Univ. Med. Ctr., 747 A.2d 266 (N.J. 2000)(holding discovery rule tolled statute of limitations for medical malpractice where, although plaintiff had medical records indicating the cause of death, those records did not indicate the hospital was at fault), Bohus v. Beloff, 950 F.2d 919 (3rd Cir. 1991) (applying Pennsylvania discovery rule to toll statute of limitations where doctor’s repeated assurances caused the plaintiff to relax her vigilance and deviate from her right of inquiry as to a cause of action for medical malpractice), and Duncan v. Leeds, 742 F.2d 989 (6th Cir. 1984)(holding complaint sufficiently stated cause to toll statute of limitation for medical malpractice where complaint established physicians knew the extent of the minor victim’s injuries and misrepresented her condition on her discharge summary).

However, each of these cases arose in jurisdictions applying the discovery rule, which provides that the cause of action in malpractice cases accrues, and the limitations period begins to run when the injury is, or with reasonable diligence, should have been, discovered. Arkansas does not apply this rule. In Arkansas, as noted previously, the cause of action begins to accrue when the injury occurs, and the statute of limitations is tolled until fraud is discovered or should have been discovered with the exercise of reasonable diligence. See Norris v. Baker, supra.

4 Moreover, one would presume that the nurses’ names would be in David’s medical records, and nothing would have prevented appellant from personally contacting them.

Logan v. Everett

PEER REVIEW PRIVILEGE

Logan v. Everett, No. M2005-00012-C.A.-R3-CV (Tenn. Ct.
App. Jan. 27, 2006)

A
hospital withdrew its recruitment offer after receiving negative references
from medical staff leaders and the hospital CEO at the recruit’s former hospital.
The recruit sued the former hospital and medical staff leaders for intentional
interference with a business relationship, alleging that they made false
and malicious statements about him. To support his claim, he pointed to telephone
verification forms on which medical staff leaders and hospital managers at
the recruiting hospital wrote notes about their conversations with the recruit’s
former hospital and physician colleagues. The Court of Appeals of Tennessee
affirmed the lower court’s summary judgment in favor of the recruit’s former
colleagues and hospital, ruling that the telephone verification forms were
inadmissible and the defendants were immune from liability under the Tennessee
Peer Review Law

 

Lohrmann v. Iredell Mem. Hosp. (Full Text)

NO. COA04-1373

NORTH CAROLINA COURT OF APPEALS

Filed: 18 October 2005

WOLFGANG E. LOHRMANN, M.D.,
Plaintiff-Appellant,

v.

IREDELL MEMORIAL HOSPITAL
INCORPORATED d/b/a IREDELL
MEMORIAL HOSPITAL’S HEALTH CARE
SYSTEM,
Defendant-Appellee.

Iredell County
No. 03 CVS 0849

Appeal by plaintiff from judgment entered 22 June 2004 by

Judge Mark E. Klass in Superior Court, Iredell County. Heard in

the Court of Appeals 16 August 2005.

Smith Moore LLP, by Samuel O. Southern and Harriett Twiggs
Smalls; and Eisele, Ashburn, Greene & Chapman, P.A., by
Douglas G. Eisele for plaintiff-appellant.

Womble Carlyle Sandridge & Rice, PLLC, by Anthony H. Brett and
Donald R. Esposito, for defendant-appellee.

McGEE, Judge.

Wolfgang Lohrmann, M.D. (Dr. Lohrmann) filed suit against

Iredell Memorial Hospital, Incorporated (Memorial Hospital) when

Memorial Hospital’s governing body suspended Dr. Lohrmann’s medical

staff privileges in early 2003. Dr. Lohrmann alleged breach of

contract, failure to comply with N.C. Gen. Stat. § 131E-85, and

violation of his rights to substantive and procedural due process

of law.

Dr. Lohrmann was a medical doctor practicing in Iredell County

in the speciality of nephrology, dealing with diseases of the

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kidney. Memorial Hospital was a nonprofit organization located in

Statesville, North Carolina, licensed to conduct business as a

hospital for the general public. Dr. Lohrmann was a member of the

medical staff at Memorial Hospital and exercised medical staff

privileges in nephrology. Memorial Hospital’s corporate bylaws and

medical staff bylaws permitted Memorial Hospital to take corrective

action against members of its medical staff. The bylaws stated

that corrective action could include suspension of medical staff

privileges.

In February and March 2002, Dr. Lohrmann provided care and

treatment to Ms. S and Mr. W, two Memorial Hospital patients. Ms.

S was an eighty-year-old patient admitted to Memorial Hospital on

14 February 2002, with a diagnosis of gangrene of the left foot.

Mr. W was a seventy-five-year-old patient who was admitted through

Memorial Hospital’s emergency room on 16 March 2002, with shortness

of breath and low blood pressure. Both patients later died while

being treated at Memorial Hospital.

At a meeting of Memorial Hospital’s Medical Executive

Committee (Executive Committee) on 22 April 2002, Arnold Nunnery,

Chief Executive Officer (CEO) of Memorial Hospital, presented

handwritten complaints by Nurse Traci Jenkins and Nurse Gail

Roberts regarding Dr. Lohrmann’s care of Ms. S and Mr. W. Nurse

Jenkins, who was also the granddaughter of Ms. S, reported that Dr.

Lohrmann made arrangements for a surgical consultation to amputate

Ms. S’s leg, despite Ms. S’s living will and despite discussion

with family members that Ms. S’s leg should not be amputated.

-3-

Nurse Jenkins also reported that Dr. Lohrmann was unwilling to

speak with Ms. S and confirm Ms. S’s consent to the amputation in

the presence of Nurse Jenkins.

Nurse Roberts reported concerns about Dr. Lohrmann’s changes

to Mr. W’s code status, the set of instructions for medical

personnel should Mr. W. experience cardiac arrest or respiratory

failure. Nurse Roberts reported that Dr. Lohrmann changed Mr. W’s

code status twice without discussing the changes with Mr. W’s

primary physician and that Dr. Lohrmann’s instructions were too

confusing for the nurses to follow.

After reviewing the written complaints of Nurse Jenkins and

Nurse Roberts, the Executive Committee authorized a review of both

cases by an outside physician. The two cases were reviewed by Dr.

Ronald Falk (Dr. Falk), Chief of the Division of Nephrology &

Hypertension at the UNC School of Medicine. Dr. Falk submitted

his report to the CEO of Memorial Hospital in a letter dated 5 July

2002. The Executive Committee reviewed Dr. Falk’s report on 26

August 2002 and, in accordance with the medical staff bylaws,

decided that the Chair of the Department of Medicine at Memorial

Hospital would discuss voluntary suspension with Dr. Lohrmann. Dr.

Lohrmann refused the Chair’s suggested thirty-one-day suspension.

Thereafter, in accordance with the medical staff bylaws, a

departmental ad hoc investigating committee (the investigating

committee) was appointed to consider the accusations against Dr.

Lohrmann. Memorial Hospital’s CEO informed Dr. Lohrmann of the

appointment of the investigating committee in a letter dated 28

August 2002.

-4-

The CEO and Byron E. Dunaway, M.D., president of the medical

staff of Memorial Hospital, provided Dr. Lohrmann with a statement

of the charges against Dr. Lohrmann in a letter dated 18 September

2002. The letter stated that the Executive Committee had reviewed

Dr. Falk’s report and had concluded that Dr. Lohrmann’s performance

in treating Ms. S and Mr. W was “lower than the standards of

[Memorial Hospital’s] Medical Staff[.]” The letter detailed the

following specific conduct that the Executive Committee stated

failed to meet medical staff standards: (1) violation of Ms. S’s

rights “by not honoring [her] wishes as discussed in her Living

Will and as per her family’s wishes”; and (2) violation of Mr. W’s

rights “in relation to whether or not he should be resuscitated as

provided by physician’s order . . . [which] was written on the

basis of prior discussion with [Mr. W] and [his] family.”

The investigating committee interviewed a number of

individuals, including Dr. Lohrmann, between 20 and 23 September

2002. The written summary of the investigating committee indicated

the issues concerning Dr. Lohrmann were patient rights, as well as

“communication with the patient/family/nursing/consulting physician

attending.” The investigating committee made the following

pertinent findings: (1) there was poor communication and handling

of disagreements with family members; and (2) it was not clear from

the record that Mr. W’s code status had been discussed with the

attending physician prior to the change made by Dr. Lohrmann.

The Executive Committee met on 23 September 2002 to review the

-5-

investigating committee’s summary. Pursuant to medical staff

bylaws, Dr. Lohrmann and his attorney were present for the meeting

of the Executive Committee and were permitted to make statements

and answer questions. After the Executive Committee met with Dr.

Lohrmann and considered the investigating committee’s summary, the

Executive Committee voted to suspend Dr. Lohrmann for seven days

and to require him to complete a patient-oriented medical ethics

course.

Pursuant to Article VII, Section 2 of the medical staff

bylaws, the CEO notified Dr. Lohrmann of the Executive Committee’s

recommendation in a letter dated 24 September 2002. The letter

stated:

The reason for the adverse recommendation by
[the Executive Committee] is that your actions
taken in managing the professional services
for the patients [Ms. S and Mr. W] were below
the acceptable standards for members of the
Medical Staff. Your determination that [Ms.
S] was capable of consenting for the
amputation of a limb was inconsistent with her
medical condition and her Living Will; also it
required close coordination with involved
family members and physicians, which did not
effectively occur. Your alteration of the DNR
status of [Mr. W] without first obtaining the
concurrence of the primary physician was
inappropriate,
and
you
entered
an
inappropriate order to effect the change.

Pursuant to Article VI, Section 1(f) of the medical staff

bylaws, the Executive Committee’s recommendation for suspension

entitled Dr. Lohrmann to exercise procedural rights to a hearing

before a panel of medical staff members appointed by the president

of the medical staff. Dr. Lohrmann made a timely request for a

hearing before a panel (the panel) which was granted. At the

-6-

panel’s hearing on 13 and 14 January 2003, Dr. Lohrmann was present

and represented by counsel who called, examined, and cross-examined

witnesses. The panel prepared a written report dated 18 February

2003 in which it concluded that a corrective action by the

Executive Committee was an appropriate response to Dr. Lohrmann’s

conduct, but recommended alternatives to suspension. In its

report, the panel also noted that it “[took] exception to [the

Executive Committee’s] conclusion that patients’ rights were

violated. Nonetheless, principles of medical ethics [were] brought

into question by Dr. L[ohrmann]’s conduct.” The Executive

Committee convened on 24 February 2003 to consider the findings of

the panel. The Executive Committee reinstated the recommendation

for a seven-day suspension and also imposed the alternatives to

suspension recommended by the panel. The Executive Committee

further decided that if Dr. Lohrmann failed to complete the

alternatives, then he would be suspended for a total of thirty-one

days.

Pursuant to the medical staff bylaws, Dr. Lohrmann appealed

the Executive Committee’s recommendation to the governing body of

Memorial Hospital. The governing body heard Dr. Lohrmann’s appeal

and affirmed the recommendation of the Executive Committee on 3

April 2003.

Dr. Lohrmann filed a verified complaint and motion for a

temporary restraining order and preliminary injunction on 4 April

2003. Judge Christopher M. Collier (Judge Collier) granted Dr.

Lohrmann’s motion for a temporary restraining order (TRO) and

-7-

prohibited Memorial Hospital from revoking, suspending, curtailing

or placing any other restriction on Dr. Lohrmann’s medical staff

privileges until the hearing on the motion for preliminary

injunction. The TRO also prohibited Memorial Hospital from

reporting its corrective action to the North Carolina Medical Board

(the Medical Board) until: (1) the entry of an order dismissing the

TRO or denying a preliminary injunction; or (2) the determination

of the case on its merits, whichever occurred first. By order

dated 24 April 2003, Judge Larry G. Ford (Judge Ford) allowed Dr.

Lohrmann’s motion for preliminary injunction and enjoined Memorial

Hospital from suspending Dr. Lohrmann’s medical staff privileges

and from reporting its action to the Medical Board. Dr. Lohrmann

filed a verified first amended complaint on 25 April 2003. Dr.

Lohrmann filed and served a motion for summary judgment on 18 March

2004 seeking to obtain permanent injunctive relief. Memorial

Hospital filed and served its own motion for summary judgment on 20

May 2004.

Judge Mark E. Klass (Judge Klass) denied Dr. Lohrmann’s motion

for summary judgment and entered summary judgment in favor of

Memorial Hospital on 21 June 2004. Judge Klass ordered that the

preliminary injunction entered by Judge Ford be dissolved, but

stayed dissolution until 1 July 2004 to allow Dr. Lohrmann time to

appeal to this Court. We entered an order on 1 July 2004 staying

Judge Klass’s order pending our ruling on Dr. Lohrmann’s petition

for writ of supersedeas. This Court then granted Dr. Lohrmann’s

petition on 13 July 2004 and stayed Judge Klass’s order pending the

outcome of the appeal.

-8-

Dr. Lohrmann argues four grounds on which the trial court

erred in granting summary judgment for Memorial Hospital: (I)

Memorial Hospital’s bylaws constituted a contract between Dr.

Lohrmann and Memorial Hospital; (II) there were genuine issues of

material fact as to whether Memorial Hospital breached its bylaws;

(III) findings of fact in the preliminary injunction were supported

by the record and gave rise to genuine issues of material fact; and

(IV) Memorial Hospital’s efforts to suspend Dr. Lohrmann were in

violation of N.C. Gen. Stat. § 131E-85.

Summary judgment is appropriate if “the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c)

(2003). The burden is on the moving party to establish the lack of

a triable issue of fact. McKeel v. Armstrong, 96 N.C. App. 401,

406, 386 S.E.2d 60, 63 (1989). To meet its burden, the movant is

required to present a forecast of the evidence available at trial

that shows there is no material issue of fact concerning an

essential element of the non-movant’s claim and that the element

could not be proved by the non-movant through the presentation of

further evidence. Id. Once the movant has supported its motion

for summary judgment, the burden shifts to the other party “to

introduce evidence in opposition to the motion setting forth

‘specific facts showing that there is a genuine issue for trial.'”

-9-

Metal Works, Inc. V Heritage, Inc., 43 N.C. App. 27, 31, 258 S.E.2d

77, 80 (1979). Appellate review of entry of summary judgment

requires a two-part analysis of whether, “(1) the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, show that there is no genuine issue

as to any material fact; and (2) the moving party is entitled to

judgment as a matter of law.” Charlotte Eastland Mall, LLC v. Sole

Survivor, Inc., 166 N.C. App. 659, 661, 608 S.E.2d 70, 72 (2004)

(citations and internal quotation marks omitted).

I.

Dr. Lohrmann argues that the trial court erred in granting

summary judgment to Memorial Hospital because Memorial Hospital’s

bylaws constituted a contract between Memorial Hospital and Dr.

Lohrmann. Dr. Lohrmann cites our Court’s decision in Virmani v.

Presbyterian Health Services Corp., 127 N.C. App. 71, 488 S.E.2d

284, disc. review denied, 347 N.C. 141, 492 S.E.2d 38-39 (1997), in

which we held that if a hospital’s offer to extend staff privileges

to a physician includes a condition that the physician adhere to

certain bylaws and the physician accepts the hospital’s offer, then

those bylaws become part of the contract between the hospital and

the physician. Virmani, 127 N.C. App. at 76-77, 488 S.E.2d at 288.

We adhere to the principle of law articulated in Virmani that a

claim for breach of contract may arise from an employer’s failure

to adhere to its bylaws. We find no genuine issue of material fact

as to whether Memorial Hospital’s bylaws constitute a contract

between Memorial Hospital and Dr. Lohrmann, and Memorial Hospital

does not dispute that such a contract exists.

-10-

II.

Dr. Lohrmann argues that the trial court erred in finding no

genuine issue of material fact as to whether Memorial Hospital

breached its bylaws in suspending Dr. Lohrmann’s medical

privileges. For the reasons discussed below, we disagree.

On the issue of breach, Dr. Lohrmann first argues that

Memorial Hospital failed to comply with Article VI, Section 1(a) of

its medical staff bylaws regarding commencement of corrective

action:

(a) . . . [C]orrective action against [a]
physician or dentist may be requested by any
officer of the Medical Staff, by the Chief
Executive Officer, or by the Governing Body.
All requests for corrective action shall be in
writing, shall be made to the Executive
Committee and shall be supported by reference
to the specific activities or conduct which
constitute the grounds for the request.

Specifically, Dr. Lohrmann argues that (1) corrective action was

not requested by an officer of the medical staff, the CEO, or the

governing body; (2) the request for corrective action was not in

writing; (3) the request for corrective action was not directed to

the Executive Committee; and (4) the request for corrective action

was not supported by reference to the specific activities or

conduct which constituted the grounds for the request.

Dr. Lohrmann argues that the handwritten notes of Nurse

Jenkins and Nurse Roberts do not suffice as written requests for

corrective action with the degree of specificity required by the

medical staff bylaws. Morever, Dr. Lohrmann contends that neither

-11-

Nurse Jenkins nor Nurse Roberts falls within the category of

individuals who may request corrective action. However, it appears

from the record that the CEO was the person who requested that

corrective action be taken against Dr. Lohrmann. The CEO, with the

written complaints from Nurse Jenkins and Nurse Roberts in hand,

addressed the Executive Committee with his concerns on 22 April

2002. These written complaints referred to the specific activities

or conduct which constituted the grounds for the request. Under

these facts, Memorial Hospital substantially complied with its

bylaw procedures for requesting corrective action when its CEO

directed a request for corrective action to the Executive

Committee. The CEO’s request, though not in writing, was supported

by the written complaints of Nurse Jenkins and Nurse Roberts that

referred to the specific activities or conduct which constituted

the grounds for the request.

Dr. Lohrmann next argues that Memorial Hospital failed to

comply with its corporate bylaw provision that requires an affected

medical staff practitioner to be heard at each step of the

disciplinary process. The corporate bylaw Dr. Lohrmann cites is

Article VII, Section 3, which provides: “The Medical Staff Bylaws

shall include: (a) A mechanism for review of adverse Medical Staff

decisions, including the right of the affected practitioner to be

heard at each step of the process when requested by the affected

practitioner[.]” Dr. Lohrmann argues that Memorial Hospital

breached this bylaw provision by failing to provide Dr. Lohrmann

with copies of the nurses’ complaints and by failing to give Dr.

-12-

Lohrmann notice of the 22 April 2002 Executive Committee meeting at

which the complaints were considered. Dr. Lohrmann asserts that he

was unaware that his care of Ms. S and Mr. W was the subject of the

22 April 2002 meeting, and therefore he had no opportunity to be

heard at each step of the process.

The corporate bylaw provision that Dr. Lohrmann cites,

however, does not apply to the process of investigating physician

conduct. Rather, upon careful reading, the “process” to which the

corporate bylaw provision refers is the process of formal hearing

and appellate review subsequent to an adverse Executive Committee

recommendation. The Executive Committee made no adverse

recommendation until after the 22 April 2002 meeting. Therefore,

any right to be heard guaranteed by the corporate bylaw that Dr.

Lohrmann cites did not apply prior to that meeting.

Pursuant to the corporate bylaw cited, Memorial Hospital’s

medical staff bylaws provide that after an adverse medical staff

recommendation, the medical staff practitioner is entitled to

certain procedural rights. The practitioner is entitled to:

prompt written notice stating the reasons for an adverse

recommendation by the Executive Committee; a hearing before a

medical staff panel appointed by the president of the medical

staff; a notice of hearing which shall again state the reasons for

the adverse recommendation; the right to be accompanied and/or

represented by counsel at the hearing; the right to submit

memoranda concerning any issue of procedure or of fact; and the

right to call and examine witnesses, to introduce written evidence,

-13-

to cross-examine witnesses, to challenge witnesses, and to rebut

any evidence. All of the foregoing procedures were complied with

in Dr. Lohrmann’s case. He received written notice of the

Executive Committee’s recommendation in a letter from the CEO dated

24 September 2002, the day after the Executive Committee meeting.

This letter detailed the reasons for the Executive Committee’s

recommendation. Dr. Lohrmann made a timely request for a hearing

before the panel. At the panel hearing on 13 and 14 January 2003,

Dr. Lohrmann was present and represented by counsel who called,

examined and cross-examined witnesses.

Dr. Lohrmann also argues that a hearing by a panel, even if

procedurally correct, does not cure Memorial Hospital’s breach of

bylaws in the prior investigatory process. Again, he cites

Virmani. The facts of Virmani, however, are distinguishable from

those of the present case. In Virmani, the physician was not

allowed to participate at all in the investigatory peer review

process, in violation of the hospital’s bylaws which specified that

a physician under investigation be provided an opportunity to

respond to written queries from the investigatory peer review

committee. Virmani, 127 N.C. App. at 71, 488 S.E.2d at 286.

Because the hospital omitted a required step in its process, our

Court in Virmani found that the physician was entitled to a new

peer review investigation to be conducted in accordance with the

hospital’s bylaws. Id. at 78-79, 488 S.E.2d at 289. In the case

before us, none of the investigatory steps provided by Memorial

Hospital’s medical staff bylaws were omitted. As discussed above,

-14-

Memorial Hospital substantially complied with its medical staff

bylaws concerning the request for corrective action. The process

then continued in accordance with further bylaw provisions.

Pursuant to Article VI, sections 1(b) and (c) of the medical staff

bylaws, the investigating committee was formed when it became

evident that the corrective action could be the suspension of Dr.

Lohrmann’s privileges, and Dr. Lohrmann was present for an

interview with the investigating committee. In accordance with

Article VI, Section 1(d), Dr. Lohrmann appeared before the

Executive Committee prior to its taking action on the request and

the investigating committee report. Unlike Virmani, there is no

investigatory procedure left undone that could alter the outcome of

another peer review upon remand in this case.

On the issue of breach of contract, Dr. Lohrmann next argues

that he was unable to fully and adequately defend himself at the

January 2003 hearing because Memorial Hospital failed to inform him

of all the charges he faced. Specifically, Dr. Lohrmann argues

that he did not receive notice of any concern that his conduct

caused “disruption,” a term that first appeared in the panel’s

report of 18 February 2003. Dr. Lohrmann contends that in not

specifying that he was charged with being disruptive, Memorial

Hospital breached its bylaw provision requiring notice of specific

activities or conduct that constitute the basis for a suspension.

Dr. Lohrmann argues that in preparing his defense for the January

2003 hearing, he relied solely on the 18 September 2002 letter from

the CEO, and prepared to defend charges of violating patient

-15-

rights, specifically issues of medical ethics, advanced directives,

and the right to die.

Although the letter of 18 September 2002 used the phrase

“patients’ rights,” the letter also discussed issues of

communication with family and physicians. Moreover, the 24

September 2002 letter from the CEO further particularized the

issues pertaining to Dr. Lohrmann’s conduct. The 24 September 2002

letter served as Dr. Lohrmann’s notice of the Executive Committee’s

adverse recommendation of the previous day. This letter described

in detail both the Executive Committee’s reasons for voting to

suspend Dr. Lohrmann’s medical privileges and the charges that

would be considered at the hearing, namely: (1) Dr. Lohrmann’s

failure to effectively coordinate with involved family members and

physicians about the care of Ms. S, (2) Dr. Lohrmann’s failure to

obtain the concurrence of Mr. W’s primary physician before changing

the code status, and (3) Dr. Lohrmann’s failure to enter an

appropriate order to effect the change.

The panel, while noting that it “[took] exception to the

Executive Committee’s conclusion that patients’ rights were

violated,” nevertheless concluded that “principles of medical

ethics ha[d] been brought into question by Dr. L[ohrmann]’s

conduct.” The panel found that Dr. Lohrmann had a “disturbing

disregard for the validity of patients’ wishes as expressed through

advanced directives, family contribution and input from other

health care workers.” Further, Dr. Lohrmann was “unwilling or

unable to work with other health care personnel” which led to

-16-

“confusion and disruption of standard medical care.” It was “in

regards to this disruption” that the panel focused its concerns.

Whether Dr. Lohrmann’s conduct was labeled as a “disruption,”

“failure to effectively coordinate,” “disturbing disregard for the

validity of patients’ wishes” or any of the other terms used by Dr.

Falk, the investigating committee, the Executive Committee, or the

panel, the issues concerning Dr. Lohrmann’s manner of care of Ms.

S and Mr. W were the same throughout the corrective action

proceedings. As early as 26 August 2002, Dr. Lohrmann received

notice that the investigating committee would be reviewing his

conduct in caring for Ms. S and Mr. W. At Dr. Lohrmann’s meeting

with the investigating committee on 20 September 2002, Dr. Lohrmann

was questioned about communication with family members and

physicians, as well as his entry of a code order that might confuse

nurses and physicians. While the CEO’s letter of 18 September 2002

used the phrase “patients’ rights,” it also discussed issues of

communication with family and physicians. At the very latest, the

CEO’s detailed letter of 24 September 2002 gave sufficient notice

to afford Dr. Lohrmann an adequate opportunity to prepare a defense

for the hearing scheduled for January 2003. We find that Dr.

Lohrmann had sufficient notice of the charges against him to be

able to present facts and defend his conduct at the January 2003

hearing.

III.

Dr. Lohrmann argues that the trial court erred in granting

summary judgment for Memorial Hospital because the findings of fact

-17-

set forth in the preliminary injunction dated 24 April 2003 gave

rise to genuine issues of material fact. Dr. Lohrmann acknowledges

that the findings in the preliminary injunction proceeding would

not be binding at a subsequent trial on the merits, but he argues

that they would support a judgment for plaintiff if uncontradicted.

We find this argument to be without merit.

It is well settled that findings of fact made during a

preliminary injunction proceeding are not binding upon a court at

a trial on the merits. Huggins v. Wake County Board of Education,

272 N.C. 33, 40-41, 157 S.E.2d 703, 708 (1967). “Indeed, these

findings and proceedings are not proper matters for the

consideration of the court or jury in passing on the issues

determinable at the final hearing.” Huskins v. Yancey Hospital,

Inc., 238 N.C. 357, 362, 78 S.E.2d 116, 121 (1953). The purpose

of an interlocutory injunction is to preserve the status quo of the

subject matter of the suit until a trial can be held. Id. at 360,

78 S.E.2d at 119. The burden of proof required to support a

preliminary injunction is less than that required for a motion for

summary judgment, and the evidence is less complete. See Schultz

& Assoc. v. Ingram, 38 N.C. App. 422, 248 S.E.2d 345 (1978).

Accordingly, the trial court did not err in determining there was

no genuine issue of material fact.

IV.

Dr. Lohrmann next argues that Memorial Hospital’s corrective

action against him was in violation of N.C. Gen. Stat. § 131E-85

(2003), which provides in part:

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(a) The granting or denial of privileges to
practice in hospitals to physicians . . .
and the scope and delineation of such
privileges shall be determined by the
governing body of the hospital on a non-
d i s c r i m i n a t o r y
b a s i s .

S u c h
determinations shall be based upon the
applicant’s
education,
training,
experience, demonstrated competence and
ability, and judgment and character of
the applicant, and the reasonable
objectives and regulations of the
hospital, including, but not limited to
appropriate utilization of hospital
facilities, in which privileges are
sought.

. . . .

(c) In addition to the granting or denial of
privileges, the governing body of each
hospital may suspend, revoke, or modify
privileges.

(d) All applicants or individuals who have
privileges shall comply with all
applicable medical staff bylaws, rules
and regulations, including the policies
a n d
t h e
g o v e r n i n g
p r o c e d u r e s
qualifications of applicants and the
scope and delineation of privileges.

Dr. Lohrmann argues that Memorial Hospital had no grounds under

N.C. Gen. Stat. § 131E-85 for suspending his privileges. He

contends that Memorial Hospital sought to suspend his privileges

solely on the basis of violating patients’ rights, but that no such

rights were violated. Dr. Lohrmann contends that he complied with

the wishes of his patients and with North Carolina law regarding

living wills and the right of a patient to control decisions

relating to her or his medical care. Therefore, Dr. Lohrmann

argues that Memorial Hospital’s attempt to discipline him for

following the law was in violation of stated North Carolina public

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policy, and as such violated N.C. Gen. Stat. § 131E-85.

Dr. Lohrmann bases this argument on the allegation that

Memorial Hospital sought to suspend his privileges solely on the

basis of violating patients’ rights. As discussed above, other

factors pertaining to Dr. Lohrmann’s conduct were clearly at issue

throughout the corrective action proceedings. Furthermore, N.C.

Gen. Stat. § 131E-85 provides that a hospital may take into account

the judgment and character of a physician, as well as the

reasonable objectives and regulations of the hospital, in

suspending a physician’s privileges.

Alternatively, Dr. Lohrmann argues that Memorial Hospital’s

decision to suspend him was arbitrary and capricious, based on

irrelevant consideration and not upon the reasonable objectives and

regulations of Memorial Hospital. By statute, regulation, and case

law, the authority to make corrective action decisions rests with

the governing body of a hospital. See N.C. Gen. Stat. § 131E-85;

10A NCAC 13B .3701, .3702, .3705 (June 2004); Cameron v. New

Hanover Memorial Hospital, 58 N.C. App. 414, 293 S.E.2d 901 (1982).

It is not the role of this Court to substitute our judgment for

that of the hospital governing body, which has the responsibility

of providing a competent staff of physicians under N.C. Gen. Stat.

§ 131E-85. See Claycomb v. HCA-Raleigh Community Hosp., 76 N.C.

App. 382, 333 S.E.2d 333 (1985). As long as the governing body’s

suspension of privileges is “‘administered with fairness, geared by

a rationale compatible with hospital responsibility and

unencumbered with irrelevant considerations, [this] [C]ourt should

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not interfere.'” Cameron, 58 N.C. App. at 449, 293 S.E.2d at 922

(quoting Sosa v. Board of Managers of Val Verde Memorial Hospital,

437 F.2d 173, 177 (5th Cir. 1971). We find that Memorial

Hospital’s governing body met this standard.

First, our discussion of Memorial Hospital’s compliance with

its corporate and medical staff bylaws illustrates that the

governing body’s suspension of Dr. Lohrmann was administered with

fairness. Next, the governing body’s decision to suspend Dr.

Lohrmann was geared by a rationale compatible with hospital

responsibilities, namely to ensure full and adequate communication

and cooperation with patients, families, physicians, and other

medical personnel. Finally, Dr. Lohrmann makes no argument about

irrelevant considerations.

We note that peer review proceedings such as Dr. Lohrmann’s

are conducted by committees of physicians and lay persons. As

quasi-legal proceedings, such peer reviews are less formal than

court proceedings and have been accorded a degree of deference by

our Court. This Court has held that the evaluation of the

performance of physicians “‘is best left to the specialized

expertise of their peers, subject only to limited judicial

surveillance.'” Id. To proceed otherwise would inhibit the vital

role of the peer review process. Members of Dr. Lohrmann’s peer

committee and panel were specially situated to evaluate whether Dr.

Lohrmann’s conduct met the standard of care set by Memorial

Hospital. The decision-making of the governing body relied on the

findings of Dr. Lohrmann’s peers and was fair and reasonable.

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In light of the evidence and discussion above, we hold that

there is no genuine issue of material fact as to whether Memorial

Hospital breached its contractual bylaws with Dr. Lohrmann, that

the findings of fact from the preliminary injunction were not

binding on the trial court, and that Memorial Hospital’s decision

under N.C. Gen. Stat. § 131E-85 was proper. The trial court did

not err in granting summary judgment in favor of Memorial Hospital.

Affirmed.

Judges HUNTER and LEVINSON concur.

Little v. St. Paul Mercury Ins. Co.,

Little v. St. Paul Mercury Ins. Co.,
No. CA 01-771 (Ark. Ct. App. Feb. 6, 2002)

A
patient in a hospital psychiatric ward committed suicide. His sister visited
the hospital to inquire about the circumstances surrounding her brother’s death
and was given copies of his medical records. The records revealed that 15-minute
checks which had been ordered for her brother were not done. When the sister
asked the hospital administrator why the 15-minute checks had not been completed
as ordered, he responded that he would have to check with the staff. He did
not reveal that two hospital employees had been terminated for failure to conduct
the checks or that one of the nurses who was fired had also been the attending
nurse for another patient who committed suicide just two months earlier. Almost
four years after her brother’s death, the sister received an anonymous letter
revealing these facts.

The sister filed a medical malpractice claim against the hospital, later substituting
the hospital’s insurance carrier. The insurer filed for summary judgment, claiming
that the two-year statute of limitations had run. The woman claimed that the
statute of limitations was tolled due to the hospital’s fraudulent concealment
of the facts surrounding her brother’s death.

The Court of Appeals of Arkansas found that the hospital administrator’s statements
to the sister were more than mere nondisclosure, stating that "it was an
affirmative misrepresentation." Nonetheless, it held that there was no
fraudulent concealment because the basis for the malpractice suit was in the
medical records, which had been supplied. It affirmed the lower court’s grant
of summary judgment because the statute of limitations had run.

Logan v. Everett,

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 12, 2005 Session

BRADLEY S. LOGAN, M.D. v. LEON EVERETT, M.D., VIRGIL
CROWDER, M.D., JACK BUCK, CROCKETT HOSPITAL, LLC., and
LIFEPOINT HOSPITALS, INC.

Direct Appeal from the Circuit Court for Davidson County
No. 02C-2090 Hon. Hamilton V. Gayden, Jr. Circuit Judge

No. M2005-00012-COA-R3-CV – Filed January 27, 2005

Plaintiff sued defendants, claiming defendants intentionally interfered with a business relationship
by making false and malicious statements about him. The Trial Court granted defendants summary
judgment on the grounds defendants were immune pursuant to Tenn. Code Ann. § 63-6-210(d)(1)(2)
for providing information to a credential committee investigating plaintiff. On appeal, we affirm the
Judgment of the Trial Court.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which D. MICHAEL SW INEY ,
J., and SHARON G. LEE , J., joined.

Bradley S. Logan, M.D., Nashville, Tennessee, pro se.

Robert L. Trentham and Taylor B. Mayes, Nashville, Tennessee, for Appellee, Virgil Crowder, M.D.

Andrew S. Naylor and Stanley E. Graham, Nashville, Tennessee, for Appellees, Leon Everett, M.D.,
Jack Buck, Crockett Hospital, LLC., and Lifepoint Hospitals, Inc.

OPINION

TRIAL COURT PROCEEDINGS

Plaintiff, a physician, sued Dr. Leon E. Everett and John Does A thru I, and averred
he was a licensed physician, and that Dr. Everett practices medicine in Lawrenceburg, Tennessee

where he is the Chief of the Medical Staff of Crockett Hospital.

The Complaint averred that in 2001 plaintiff began negotiations with Skyline Medical
Center (“Skyline”) with the purpose of moving his medical practice from Lawrenceburg, Tennessee,
to Nashville, and that plaintiff and Skyline entered into a Recruiting Agreement wherein Skyline
promised to guaranty plaintiff a minimum monthly income for the first year of his practice in
Nashville. The promise was conditioned upon Plaintiff “obtaining and maintaining full medical staff
privileges at [Skyline]” and engaging “in the full-time private practice of medicine as [an] Ob/Gyn
in [Nashville]” by January 1, 2002. Plaintiff further averred that he applied for medical privileges
1
at Skyline, but was informed that his application would be rejected due to negative statements made
by individuals at Crockett Hospital. Further, that plaintiff learned that none of the physicians
contacted by Skyline during the application process gave him a positive reference, and his Complaint
concluded that defendants committed tortious interference with the contract between plaintiff and
Skyline by making false and malicious statements in bad faith.

Subsequently, the Trial Court allowed plaintiff to amend his Complaint to add Virgil
H. Crowder, M.D.; Crockett Hospital, LLC (“Crockett”); and LifePoint Hospitals, Inc. (“LifePoint”)
as defendants.

On December 3, 2003, Dr. Crowder filed a Motion for Summary Judgment and a
Statement of Undisputed Facts. The Motion argued:

[Dr. Crowder] made no statements whatsoever to representatives of [Skyline]
concerning the application by the [P]laintiff . . . to [Skyline] for medical staff
privileges and therefore, [Plaintiff’s] claims against Dr. Crowder necessarily fail to
state a claim upon which relief could be granted for intentional interference with a
business relationship as a matter of law.

The Trial Court denied Dr. Crowder’s Motion, and Dr. Everett then filed a Motion for Summary
Judgment on the grounds that plaintiff had executed a Release, which released from liability, “all
representatives of the hospital and its medical staff for their acts performed in good faith and without
malice in connection with evaluating my application and my credentials and qualifications”. A copy
of the Release was filed, along with a Motion, as well as excerpts from the deposition of plaintiff.
One of the more relevant exchanges from the deposition is:

Q.

So you don’t know what Dr. Everett said [to the credentials committee]?

A:

Q:

Of course not.

Do you have any knowledge or information that would tend to show or

1
Plaintiff did not engage in full time practice as an Ob/Gyn in Nashville by the January 1,
2002 deadline, and Skyline rescinded the Recruiting Agreement on February 20, 2002.

-2-

A:

Q:

A:

. . .

Q:

A:

Q:

A:

. . .

Q:

A:

. . .

A:

suggest that anything Dr. Everett may have said to any one was untrue or was
a lie?

No.

Do you have any facts or anything to show that would suggest that anything
that Dr. Everett may have said to anyone with regard to your application at
Skyline was made in bad faith?

Yes

Okay. Tell me what the proof is, facts, or hearsay.

Okay. . . . Kelly Duggan [a Skyline attorney] communicated to me that none
of the physicians that were contacted by Skyline . . . gave [me] a positive
reference. Mr. Klein [Skyline’s CEO] has also said that it was the telephone
conversation with physicians in Lawrenceburg that made the credentials
committee uncomfortable.

Anything else?

Dr. Everett has told me that he spoke to somebody at Skyline . . . . Dr.
Everett has also told me that he told them that my charts were reviewed.

And your charts were, in fact, reviewed?

Yes.

Okay. So then Dr. Neal [President of Skyline’s medical staff] spoke to Dr.
[Janice] Huckaby [Plaintiff’s friend and colleague] and said that he spoke to
the physicians in Lawrenceburg and that they did not give [me] a positive
reference, that he took each of those persons off of the record and had a
conversation with them that also made him feel uncomfortable.

Q:

A:

Anything else?

At this time, no.

-3-

Plaintiff responded to these Motions for Summary Judgment, but did not file
responses to the Statement of Undisputed Facts filed by Dr. Everett and Dr. Crowder. Regarding
the doctors’ arguments that they were immune pursuant to Tenn. Code Ann. § 63-6-219(d)(2),
plaintiff argued that there was a factual issue as to whether this immunity applied because this
immunity is conditioned on acting in good faith without malice and the immunity could be lost if
the doctors provided false information and actually knew the information was false. Regarding the
doctors’ assertion there was no evidence to show that they engaged in the alleged tortious conduct,
plaintiff argued that his search for evidence was hampered by assertions of the peer review privilege
and that the documents evidencing communication between representatives of Skyline and doctors
at Crockett raised the possibility of false and malicious statements.

Two of the documents relied on by plaintiff, were telephone verification forms, one
of which lists comments made by the Chief of Staff at Crockett (i.e. Dr. Everett). The comments
listed on the form include the following: “has had some issues—now resolved[;] lots of politics[;]
poor relationship with peers[;] some complications—reviews done[;] recommended.”. The other
form is not dated and lists comments made by a former Chief of Staff at Crockett. Plaintiff also
attached, as an exhibit to his Response to Dr. Crowder’s Motion, a letter dated February 22, 2002,
written on Dr. Crowder’s stationary, which was not signed and addressed to Skyline’s Credentials
Committee. The letter included the following comments:

[Plaintiff’s] charts were reviewed at my request because I thought that his surgical
complication rates might be high. . . . The Surgery [Committee] had reviewed all
instances of complications for [Plaintiff] as a regular part of its function. No finding
of complications was ever categorized as other than “a known complication of
surgery appropriately handled.”. . . [Plaintiff’s] complication rate was compared to
system wide averages and his average was actually below the system average.
Outside review was performed. The Medical Executive Committee met, reviewed
the findings and no recommendation for anything other than observation for 6
months was made.

The Trial Court granted Dr. Crowder’s and Dr. Everett’s Motions for Summary Judgment.

Plaintiff then filed a Motion to Amend his Complaint and added Jack Buck as a
Defendant. This Complaint averred that Buck was the Chief Executive Officer of Crockett and that
he committed intentional interference with the business relationship between Plaintiff and Skyline
by knowingly making false statements to Skyline’s CEO about Plaintiff’s abilities.

Crockett, LifePoint, and Mr. Buck filed a Motion for Summary Judgment and
Statement of Undisputed Facts based upon the same grounds presented by Drs. Everett and
Crowder. In plaintiff’s Response to the Motion, plaintiff attached a telephone verification form
listing comments regarding plaintiff made by Buck to Robert Klein, Skyline’s CEO. The form listed
these comments:

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very negative overall; both clinical and financial issues[;] ‘4 months behind rent’[;]
behind in ultrasound lease payments[;] spoke of numerous surgical mishaps;
‘sloppy’[;] . . . bad reputation.

Plaintiff alleged these comments evidenced false statements made by Buck, and served a subpoena
upon Klein for a deposition and specified documents, as well as a subpoena upon Skyline to produce
specified documents. At these parties’ request, the Trial Court entered a Protective Order denying
discovery and granted defendants’ Motion for Summary Judgment.

ISSUES RAISED ON APPEAL

1.

2.

3.

4.

What is the extent of the privilege from discovery created by the Tennessee
Peer Review Law of 1967?

Whether summary judgment was appropriate because the Tennessee Peer
Review Law of 1967 bars any claim for liability against the Appellees.

Whether summary judgment was appropriate because the Appellant released
all of his claims against each Appellee.

Whether summary judgment was appropriate because, as a matter of law, the
Appellees did not tortiously interfere with the Appellant’s “business
relationship” with Skyline.

Our review of summary judgments are de novo “without any presumption of
correctness accorded the trial court’s judgment.” Guy v. Mutual of Omaha Ins. Co., 79 S.W.3d 528,
534 (Tenn. 2002). Our task in deciding the propriety of a summary judgment is to determine
whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Guy, (quoting Tenn. R. Civ. P. 56.04). When
making this determination, “[c]ourts must view the evidence in the light most favorable to the
nonmoving party and must also draw all reasonable inferences in the nonmoving party’s favor.”
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). “If both the facts and conclusions
to be drawn therefrom permit a reasonable person to reach only one conclusion, then summary
judgment is appropriate.” Seavers v. Methodist Med. Ctr. of Oak Ridge, 9 S.W.3d 86, 91 (Tenn.
1999).

The moving party must do more than make conclusory assertions “that the nonmoving
party has no evidence.” Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). Instead, the moving party
must either “affirmatively negate an essential element of the nonmoving party’s claim” or
“conclusively establish an affirmative defense that defeats the nonmoving party’s claim.” Id. at 215
n.5. At this juncture, the nonmoving party may not simply rely upon “the allegations or denials of

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his pleadings,” but must establish the existence of genuine disputed issues of material fact. Id.

Defendants argued below, and on appeal, that the Tennessee Peer Review Law of
1967 (the “TPRL”) creates an absolute privilege protecting their communications with Skyline
regarding Plaintiff’s application for privileges. Plaintiff counters that the privilege from discovery
is not absolute.

The General Assembly enacted the TPRL in order to create an “incentive for the
medical profession to undertake professional review.” Tenn. Code Ann. § 63-6-219(b)(2) (2005).
As part of this incentive, the General Assembly decided that “peer review committees must be
protected from liability for their good faith efforts.” The TPRL includes the following provision:

(d)(1) All state and local professional associations and societies and other
organizations, . . .any person who participates with or assists a medical review
committee with respect to its functions, or any other individual appointed to any
committee, as such term is described in subsection (c), is immune from liability to
any . . . individual or organization for furnishing information . . . to any such
committee or for damages resulting from any decision . . . entered or acted upon by
such committees undertaken or performed within the scope or function of the duties
of such committees, if made or taken in good faith and without malice and on the
basis of facts reasonably known or reasonably believed to exist.

Tenn. Code Ann. § 63-6-219(d)(1) (2005). (Emphasis supplied). As the foregoing establishes,
immunity is conditioned on acting “in good faith, and without malice, and on the basis of facts
reasonably known or reasonably believed to exist.” In 1988, General Assembly amended the original
Act, as it applies to those who provide information to medical review committees. 1988 Tenn. Pub.
Acts, ch. 609, § 2. The following language was added to the Act:

(2) Notwithstanding the provisions of subdivision (d)(1), any person providing
information, whether as a witness or otherwise, to a medical review committee
regarding the competence or professional conduct of a physician is immune from
liability to any person, unless such information is false and the person providing
it had actual knowledge of such falsity.

Tenn. Code Ann. § 63-6-219(d)(2) (2005) (emphasis supplied). The foregoing phrase establishes
that any further consideration of an information-provider’s good faith or malice is unnecessary.
Ironside v. Simi Valley Hosp., 188 F.3d 350, 353 (6th Cir. 1999).

Beyond a showing that they assisted a review committee, participants in the medical
review process do not have to prove their eligibility for immunity. Instead, “[a] member of a medical
review committee, or person reporting information to a medical review committee, is presumed to
have acted in good faith and without malice. Any person alleging lack of good faith has the burden

-6-

of proving bad faith and malice.” Tenn. Code Ann. § 63-6-219(d)(3). Thus, where a plaintiff wishes
to demonstrate that a provider of information to a medical review committee is ineligible for
immunity, the plaintiff must prove the information was false and the provider had actual knowledge
of its falsity.

The TPRL also protects the information submitted to and generated by such review
committees by making it confidential and privileged. Tenn. Code Ann. § 63-6-219(e). Plaintiff
argues there is an implied exception to this privilege which gives the party opposing immunity the
right to discover information otherwise privileged under subsection (e). We cannot agree with this
interpretation of the provision. The General Assembly expressed its intent regarding subsection (e)
as follows:

[I]t is the stated policy of Tennessee to encourage committees made up of
Tennessee’s licensed physicians to candidly, conscientiously, and objectively
evaluate and review their peers’ professional conduct, competence, and ability to
practice medicine. Tennessee further recognizes that confidentiality is essential both
to effective functioning of these peer review committees and to continued
improvement in the care and treatment of patients.

Tenn. Code. Ann. § 63-6-219(b)(1).

According to the plain terms of Subsection (e), the privilege from discovery is broad
and protects “[a]ll information, interviews, incident or other reports, statements, memoranda or other
data furnished to any [medical peer review] committee.” The plain terms of this section provide for
only three limitations in the privilege’s scope. First, the privilege only protects information
“furnished to, or generated by, a medical peer review committee.” Second, the privilege only applies
in civil actions. Third, the privilege applies to neither “records made in the regular course of
business” nor to “records otherwise available from original sources” which are simply presented
during the proceedings of a medical peer review committee.

Under plaintiff’s interpretation of subsection (e), a participant in the peer review
process could not assert his immunity without simultaneously losing enjoyment of the privilege from
discovery created by the subsection. Accordingly, plaintiff’s interpretation would have the effect
of rendering the privilege created by subsection (e) effectively void. “It is a well-settled principle
of statutory construction that statutory provisions should be construed in a manner that will not
render them meaningless or useless.” Hoyer-Schlesinger-Turner, Inc. v. Benson, 479 S.W.2d 223,
225 (Tenn. 1972).

Plaintiff argues that the Tennessee Supreme Court has recognized an implied
exception to the peer review privilege in Eyring v. Fort Sanders Parkwest Med. Ctr., Inc., 991
S.W.2d 230 (Tenn. 1999). In Eyring, the plaintiff was a licensed physician with staff privileges at
the defendant hospital, and his privileges were later revoked by a medical review committee at the

-7-

hospital. The plaintiff sued the hospital, charging intentional interference with a business
relationship. The Trial Court allowed the plaintiff to conduct discovery of peer review participants
for the limited purpose of allowing the plaintiff to discover the participants’ good faith, malice, and
whether they acted on the basis of facts reasonably known or believed to exist, but declined to allow
plaintiff to conduct discovery regarding the peer review process itself.

Prior to 1999, the second sentence of the peer review privilege provision stated, “All
such information, in any form whatsoever, so furnished to, or generated by, a medical review
committee shall be privileged communication subject to the laws pertaining to the attorney-client
privilege.” 1994 Tenn. Pub. Acts, ch. 732, § 6. The plaintiff argued that the language “subject to
the laws pertaining to the attorney-client privilege” granted an implied exception to the
confidentiality privilege, which argument was rejected by this Court. The plaintiff appealed to the
Supreme Court, which affirmed the Trial Court’s approach with the following reasoning:

This statute creates a broad privilege from disclosure for “[a]ll information,
interviews, incident or other reports, statements, memoranda or other data … and any
findings conclusions or recommendations resulting from the [committees’]
proceedings.” In our view, this broad language encompasses any and all matters
related to the peer review process itself. We reject Eyring’s contention that the
statute grants an implicit right to any information “furnished to or resulting
from the proceedings” of the peer review committees.

It appears, however, that the broad language extending the privilege from
discovery must be reconciled with the statutory requirement that the plaintiff bear the
burden of producing evidence of malice and bad faith. We therefore agree with the
trial court’s ruling allowing Eyring to conduct discovery for the limited purpose
of investigating the committee members’ good faith, malice, and reasonable
knowledge or belief, but prohibiting any inquiry into the peer review process
itself. Accordingly, we conclude that . . . the broad language of the statute
encompasses any and all matters related to the peer review process.

Eyring, p.239 (citations omitted) (emphasis supplied).

The Supreme Court clearly rejected the plaintiff’s contention that the statute grants
an implicit right to any information furnished to or resulting from the proceedings of the peer review
committees, and prohibits any inquiry into the peer review process itself. In the Court’s words, “the
broad language of the statute encompasses any and all matters related to the peer review process.”

We conclude there is no implied exception to the rights of privilege and
confidentiality created by the statute.

Next, plaintiff argues that the immunity from civil liability is conditional, and whether

-8-

the relevant conditions have been satisfied is a genuine issue of material fact. Defendants counter
that summary judgment was appropriate because they are immune to liability under the TPRL.

The record establishes that Skyline’s Credentials Committee and its Medical
Executive Committee are “medical review committees” for purposes of Tenn. Code Ann. § 63-6-
219. In this regard see a definition of the medical review committee contained in Tenn. Code Ann.
§ 63-6-219(c).

Plaintiff’s claim is based on the belief that the defendants provided information to
Skyline’s Credentials Committee regarding plaintiff’s application for privileges at Skyline. The
record establishes that these individuals satisfy subsection (d)(2)’s definition of “person[s] providing
information, whether as a witness or otherwise, to a medical review committee regarding the
competence or professional conduct of a physician.” As such, they have “immunity from liability
to any person” unless the information they provided was false and they had actual knowledge of its
falsity. According to Tenn. Code Ann. § 63-6-219(d)(3), the defendants will be presumed to enjoy
this immunity unless plaintiff can show they are ineligible.

We have previously noted that plaintiff, as to Dr. Everett, testified that he did not
have any knowledge or information that would suggest that what Everett may have said “was untrue
or was a lie.” The material submitted by plaintiff in support of his claim against Everett is the
telephone verification form prepared by an agent of Skyline’s Credentials Committee listing notes
of a telephone conversation with Dr. Everett. However, under Tenn. Code Ann. § 63-6-219(e) “[a]ll
information, interviews, incident or other reports, statements, memoranda or other data furnished to
any [medical peer review] committee” are privileged from discovery. The telephone verification
form falls within this category, and therefore would be inadmissible at trial. Although the facts
relied upon by plaintiff need not be in admissible form, they “must be admissible at the trial.” Byrd,
215-16. Plaintiff has failed to establish a disputed issue of material fact as to Everett’s ineligibility
for immunity, and summary judgment was appropriate in his case.

Plaintiff’s support for his claim against Dr. Crowder, is another telephone verification
form prepared by an agent of Skyline’s Credentials Committee listing notes of an alleged telephone
conversation with Dr. Crowder. Under Tenn. Code Ann. § 63-6-219(e), however, this form is
2
privileged and would not be admissible at trial. Plaintiff also presented minutes from a meeting of
Skyline’s Credentials Committee as circumstantial evidence of what Dr. Crowder told the
Credentials Committee. These minutes are also privileged from discovery pursuant to Subsection
3
(e).

2

Dr. Crowder’s name is not mentioned on this form.

3
Although the minutes refer to comments made by “the former Chief of Staff at Crockett”,
Dr. Crowder is not mentioned by name in the minutes.

-9-

The only other material presented by plaintiff in support of his claim is a letter dated
February 22, 2002 and addressed to Skyline’s Credentials Committee regarding plaintiff’s
application for privileges. The letter is written on Dr. Crowder’s stationary, but it was not signed.
The Record indicates this copy of the letter was sent to Plaintiff by Dr. Crowder’s clinic, assuming
arguendo that the letter is admissible, it does not create a disputed issue of material fact as to
whether Dr. Crowder supplied false information to Skyline because plaintiff has not presented any
evidence that any of the information in the letter is false. Therefore, summary judgment in favor of
Dr. Crowder was properly entered by the Trial Court.

In support of plaintiff’s claim against Mr. Buck, plaintiff presented a third telephone
verification form prepared by Skyline’s CEO, Robert Klein. Klein is a member of Skyline’s
Credentials Committee. Robert Klein listed notes of a conversation with Buck regarding plaintiff’s
application for privileges at Skyline. Under Subsection (e), however, this form is privileged and
would be inadmissible at trial. This form is the only evidence presented by plaintiff regarding
Buck’s communications with Skyline’s Credentials Committee. Plaintiff therefore, has not
established what information was provided by Buck, and hence, cannot establish whether that
information was true or false. Accordingly, summary judgment was appropriate for Mr. Buck.

The parties do not dispute that Dr. Everett and Mr. Buck are employees of Crockett,
and “[A]n employer may be held liable for the torts committed by his or her employees while
performing duties within the scope of employment.” White v. Revco Disc. Drug Ctrs., Inc., 33
S.W.3d 713, 718 (Tenn. 2000). Yet, “a principal may not be held vicariously liable under the
doctrine of respondeat superior based upon the acts of its agent . . . when the right of action against
the agent is extinguished by operation of law . . . .” Johnson v. LeBonheur Children’s Med. Ctr., 74
S.W.3d 338, 345 (Tenn. 2002); see also Graham v. Miller, 187 S.W.2d 622, 625-26 (Tenn. 1945);
Raines v. Mercer, 55 S.W.2d 263, 264 (Tenn. 1932). We have concluded that Dr. Everett and Mr.
Buck are entitled to immunity. Plaintiff’s right of action against these agents is extinguished by
operation of law, and summary judgment in Crockett’s favor was appropriate.

Plaintiff’s Complaint did not clearly state how LifePoint could be held liable for
intentional interference with the business relationship between Plaintiff and Skyline. During
depositions, Plaintiff asserted that LifePoint committed this tort through the actions of its employees.
Plaintiff alleged that one of these employees, Mr. Gracey, “failed to put adequate policies and
4
procedures in effect to deal appropriately with false allegations that had been made against [Plaintiff]
during [Plaintiff’s] tenure at Crockett.” Plaintiff also alleged that another LifePoint employee, Mr.
Kunkel, made false statements to Skyline regarding Plaintiff’s lease payments at Crockett.
5

4

5

According to LifePoint’s Brief, William Gracey is LifePoint’s Chief Operations Officer.

According to LifePoint’s Brief, Neil Kunkel is LifePoint’s in-house counsel.

-10-

Plaintiff does not allege that Mr. Gracey communicated with Skyline’s Credentials
Committee, but whatever immunity was provided by Tenn. Code Ann. § 63-6-219(d), Mr. Gracey’s
alleged conduct does not support a claim for intentional interference with a business relationship.
The tort of intentional interference with business relationships requires intentional conduct. Our
Supreme Court outlined the elements of this tort as follows:

We also hold that liability should be imposed on the interfering party provided that
the plaintiff can demonstrate the following: (1) an existing business relationship with
specific third parties or a prospective relationship with an identifiable class of third
persons; (2) the defendant’s knowledge of that relationship and not a mere awareness
of the plaintiff’s business dealings with others in general; (3) the defendant’s intent
to cause the breach or termination of the business relationship; (4) the
defendant’s improper motive or improper means; and finally, (5) damages resulting
from the tortious interference.

Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002). (emphasis supplied).
Plaintiff does not allege that Gracey intended to terminate plaintiff’s business relationship with
Skyline. Instead, Plaintiff asserts that Gracey “failed to put adequate policies and procedures into
effect.” This allegedly negligent conduct is insufficient to satisfy the third element of plaintiff’s
claim, which requires intentional conduct.

Plaintiff alleges that Kunkel falsely told representatives of Skyline’s Credentials
Committee that Plaintiff had “unpaid lease amounts at [Crockett].” If plaintiff’s belief that Kunkel
provided information to Skyline’s Credentials Committee is correct, then Kunkel would be entitled
to immunity pursuant to Tenn. Code Ann. § 63-6-219(d)(2), unless the information he provided was
false and he had actual knowledge of its falsity. Plaintiff provided no evidence showing that Mr.
Kunkel’s statement was false. For these reasons, the plaintiff has failed to establish his claim against
LifePoint, and summary judgment was appropriate as to this defendant.

The foregoing renders the remaining issues moot, and we affirm the Judgment of the
Trial Court and remand, with the cost of the appeal assessed to the plaintiff, Bradley S. Logan, M.D.

_________________________
HERSCHEL PICKENS FRANKS, P.J.

-11-

Livingston Care Ctr. v. United States Dept. of Health & Human Svcs.

v.

Petitioner,

No. 03-3489

Respondents.

LIVINGSTON CARE CENTER,

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES, et al.,

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 04a0372p.06
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X—->,—-N
On Petition for Review of a Decision of the
Secretary of Health & Human Services.
No. A-03-7.
Argued: June 15, 2004
Decided and Filed: August 24, 2004*
Before: DAUGHTREY and SUTTON, Circuit Judges; COOK, District Judge.**
_________________
COUNSEL
ARGUED: Geoffrey E. Webster, Columbus, Ohio, for Petitioner. Sheila Ann Hegy, UNITED STATES
DEPARTMENT OF HEALTH AND HUMAN SERVICES, OFFICE OF THE CHIEF COUNSEL, Chicago,
Illinois, for Respondents. ON BRIEF: Geoffrey E. Webster, Eric B. Hershberger, Columbus, Ohio, for
Petitioner. Sheila Ann Hegy, UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES, OFFICE OF THE CHIEF COUNSEL, Chicago, Illinois, for Respondents.
_________________
OPINION
_________________
COOK, District Judge. Petitioner, Livingston Care Center (“Livingston”) appeals the final decision
of the Secretary of Health and Human Services (“HHS”), who determined that it had failed to comply with
the Medicare participation requirement of 42 C.F.R. § 483.25(c) between April 20, 2001, and May 10,

*This decision was originally issued as an “unpublished decision” filed on August 24, 2004. On September 17, 2004, the
court designated the opinion as one recommended for full-text publication.
**The Honorable Julian Abele Cook, Jr., United States District Judge for the Eastern District of Michigan, sitting by
designation.

1

No. 03-3489

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Page 2

2001. This regulation requires skilled nursing facilities, such as Livingston, to provide a prescribed level
of medical care and services for their residents’ skin.
Before this Court is Livingston’s petition for judicial review pursuant to 42 U.S.C. § 1320a-7a(e).
On the basis of the record, we now affirm the entry of the summary judgment and deny Livingston’s
petition.

I.

Livingston is a skilled nursing facility in Dayton, Ohio. In order for a facility like Livingston to
participate in and receive payments from the federal Medicare program and the Ohio Medicaid program,
it must submit to random surveys by the Ohio Department of Health (“ODH”) on behalf of the Centers for
Medicare and Medicaid Services (“CMS”). See 42 C.F.R. § 488.20(a). These surveys are conducted to
ensure that the inspected facility is fully complying with all of the participation requirements in 42 C.F.R.
Part 483.
On April 16-20, 2001, ODH officials conducted its survey of the Livingston facility, and made the
following observations with regard to five residents:1
Resident 83, a female resident, suffers from peripheral vascular disease and other ailments which
place her at a high risk for pressure sores. Although this resident’s plan of care specified that pressure
relieving devices should be used on her bed and wheelchair, an ODH surveyor observed on April 16, 2001
that she had only a standard mattress and a wheelchair without any pressure relieving cushion. The surveyor
also noted that Resident 83 had four pressure sores – on her left leg, right foot, right heel, and left ock.
Significantly, the pressure sore on this resident’s left leg had apparently developed as a result of an
immobilizer device that had been attached to her knee.
Resident 73 is an obese woman who required assistance for bed mobility. Inasmuch as she was
frequently incontinent, her plan of care required the facility to employ reasonable hygienic observations,
as well as appropriate changes of clothing and bed linens, every two hours. This dependency and
incontinence placed her at additional risk for pressure sores and other forms of skin impairment. During
the morning of April 18, 2001, an ODH surveyor found that she had developed a pressure sore on her right
ock. In addition, it was also noted that this resident was fed breakfast while her ocks were moist
with urine in a soiled bed. Neither the resident’s state of cleanliness nor the conditions relating to her bed
linen were changed for nearly a two-hour period after breakfast.
Resident 90, another female resident, was observed in bed and in a geri-chair without pressure
relieving devices in direct contravention to her plan of care. Although she wore padded bed boots on both
feet, her feet were not elevated. The surveyor also reported that this resident had two pressure sores: one
on her right heel, and one on her right metatarsal.
Resident 1, a male resident, was observed wearing a right-heel cradle boot. On four separate
occasions during the survey, he was observed to have been without any pressure relieving device as required
by his plan of care. In addition, the ODH surveyor no ticed a previously unidentified pressure sore on the
top of his right foot that had been caused by an improperly fastened heel cradle boot.
Resident 20, a male resident, was observed without a pressure relieving device on his wheelchair
despite having been (1) assessed as “at risk” for pressure sores and (2) given a plan of care that required the
facility to provide him with a pressure relieving mattress and chair cushion. The ODH surveyors also
observed a wound that was characterized by Livingston’s staff as a pressure sore.

1Each resident has been identified throughout this litigation with a number in order to achieve anonymity and to protect his
or her identity.

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Page 3

Based on these observations, CMS determined that Livingston was in violation of the participation
requirement at 42 C.F.R. § 483.25(c), also known as “Tag F-314″,2 and assessed the facility with a civil
monetary penalty of $500.00 per day starting April 20, 2001.
On May 11, 2001, the ODH, after conducting a follow-up survey, concluded that Livingston had
become compliant with 42 C.F.R. § 483.25(c). Eleven days later, CMS issued a Notice of Imposition of
Remedies (“Notice”) to Livingston which outlined the basis for its imposition of a civil monetary penalty
in the amount of $10,500.00 covering a period of twenty-one days of noncompliance (from April 20 to May
11, 2001).
Livingston challenged these allegations of non-compliance, as well as the imposition of the civil
monetary penalty, by submitting a timely request for a hearing before an administrative law judge pursuant
to 42 C.F.R. Part 498. On September 14, 2001, CMS filed a motion for summary judgment, contending that
Livingston had failed to satisfy the participation requirements regarding the treatment of these five residents.
Livingston filed a response in opposition, contending that genuine issues of material facts existed with
regard to its alleged failure to substantially comply with the applicable federal regulations that govern
pressure sores. Livingston also offered the declaration of Kinda Walden, a Certified Wound Ostomy and
Continence Nurse, who challenged the credibility of the ODH surveyors and presented her own professional
evaluations of the five residents whose medical care and treatment had been criticized.
On May 22, 2002, the administrative law judge granted CMS’s motion for summary judgment
without a hearing after determining that the undisputed material facts established Livingston’s failure to
satisfy the standards of 42 C.F.R. § 483.25(c). Notably, the administrative law judge did not agree with all
of the ODH surveyors’ observations, concluding that, for purposes of resolving this summary judgment
issue, the “wounds” that had been observed on Resident 90’s right heel, Resident 1’s right foot, and Resident
20’s right ock were not pressure sores. Nevertheless, he determined that Livingston had evidenced a
“pattern of failures” in providing appropriate remedial care relating to the prevention practices and
subsequent treatment of its residents’ pressure sores. J.A. at 44.
Livingston filed an appeal to the HHS Departmental Appeals Board (“DAB”) on July 21, 2002. The
DAB affirmed, concluding that (1) Livingston had failed to create a genuine issue of a material fact
concerning the alleged violations, and (2) the evidence demonstrated that the treatment of the five residents
by the facility was not in substantial compliance with the participation requirement of 42 C.F.R.
§ 483.25(c).3

II.
Although the rules governing long term care facilities in 42 C.F.R. § 498 do not provide for summary
judgment proceedings, the HHS has promulgated guidelines that are utilized by its administrative tribunals.
The DAB Civil Remedies Division’s Procedures state, in part, as follows:

2This regulation reads as follows:
(c) Pressure sores. Based on the comprehensive assessment of a resident, the facility must ensure that–
(1) A resident who enters the facility without pressure sores does not develop pressure sores unless the
individual’s clinical condition demonstrates that they were unavoidable; and
(2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent
infection and prevent new sores from developing.

42 C.F.R. § 483.25(c).
3This opinion of the DAB constitutes the final decision of the HHS. 42 C.F.R § 498.90(c)(1).

No. 03-3489

Livingston Care Center v. Dep’t of Health and Human Svcs., et al.

Page 4

An in-person hearing (i.e., a hearing at which witnesses are called and testify) is not the only
vehicle for the judge to hear and decide the case. If, after giving the parties the opportunity
to present their views, the judge determines that there are no genuine issues of material fact,
the judge might decide the case based on the undisputed facts and the applicable law.
Dep’t of Health & Human Svcs., Dep’t Appeals Bd., Civil Remedies Div., Procedures at 1.
This Court recently determined that the rule which allows administrative law judges to grant a
summary judgment without an in-person hearing is legally enforceable. See Crestview Park Care Ctr. v.
Thompson, No. 02-4084, 2004 WL 1432719, at *6 (6th Cir. June 28, 2004) (unpublished). Similarly, we
are satisfied that the summary judgment procedure which was employed by the administrative law judge
in this case was appropriate.
Requests for the entry of a summary judgment are reviewed on a de novo basis. Greene v. Bowles,
361 F.3d 290, 293 (6th Cir. 2004). All summary judgment proceedings are governed by Federal Rule of
Civil Procedure 56. The Supreme Court has opined that “[o]ne of the principle purposes of the summary
judgment rule is to isolate and dispose of factually unsupportable claims or defenses . . . .” Celotex Corp.
v. Catrett, 477 U.S. 317, 323–24 (1986). At the same time, the language within Rule 56(c) provides that
a motion for summary judgment should be granted only if a party “show[s] that there is no genuine issue
as to any material fact and that [it] is entitled to a judgment as a matter of law.” In assessing a summary
judgment motion, the judicial officer must examine any pleadings, depositions, answers to interrogatories,
admissions, and affidavits in a light that is most favorable to the non-moving party. Fed. R. Civ. P. 56(c);
see United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Boyd v. Ford Motor Co., 948 F.2d 283, 285
(6th Cir. 1991). It is not the role of the judicial officer to weigh the facts. 60 Ivy Street Corp. v. Alexander,
822 F.2d 1432, 1435-36 (6th Cir. 1987). Rather, it is the duty of the judicial officer to determine “whether
. . . there are any genuine factual issues that properly can be resolved only by a finder of fact because they
may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250.
A dispute is genuine only “if the evidence is such that a reasonable [finder of the facts] could return
a verdict for the nonmoving party.” Id. at 248. Hence, the moving party may show that a genuine factual
issue is lacking if it presents evidence which is sufficient to make the issue “so one-sided that [they] must
prevail as a matter of law,” id. at 252, or point to a failure by the non-moving party to present evidence
“sufficient to establish the existence of an element essential to its case, and on which it will bear the burden
of proof at trial.” Celotex Corp., 477 U.S. at 322. Upon such a showing, the non-moving party must act
affirmatively to avoid the entry of a summary judgment. Fed. R. Civ. P. 56(e). A mere scintilla of
supporting evidence is insufficient. See Street v. J.C. Bradford & Co., 886 F.2d 1472, 1477 (6th Cir. 1989)
(citing Anderson, 477 U.S. at 252). Indeed, “[i]f the evidence is merely colorable or is not significantly
probative summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (citations omitted).
III.
Livingston argues, among other things, that the entry of a summary judgment for its alleged
noncompliance under the Tag F-314 provision was erroneous because the administrative law judge
improperly evaluated the evidence in favor of CMS. The parties have advanced their arguments in the
context of the five patients, all of whom were observed by the ODH surveyors. Therefore, in our evaluation
of the parties’ respective arguments, we now turn to a discussion of those five residents.
RESIDENT 83
A.
Resident 83 suffers from peripheral vascular disease and other ailments which placed her at a high
risk for pressure sores. It is also undisputed that the ODH surveyors observed three new pressure sores on
her left ock, left leg, and right foot. Livingston, however, argues in its brief that Resident 83’s pressure

No. 03-3489

Livingston Care Center v. Dep’t of Health and Human Svcs., et al.

Page 5

sores were “medically unavoidable.”4 In support of this contention, Livingston cites Walden’s declaration,
in which she discussed the medical conditions that gave rise to the pressure sore on Resident 83’s left leg
and concluded that the resident’s leg pressure sore was unavoidable. J.A. at 164 (Walden Decl.).
Significantly, however, Walden does not challenge the ODH surveyors’ observations with regard to the
other two pressure sores on this resident. Livingston also argues that Resident 83’s medical condition forced
it to make a “difficult medical decision” to treat the patient’s leg with an immobilizer device despite
potential harm to her skin in that area. Pet’r Final Br. at 24. However, the record indicates that Livingston
did not address the pressure sore condition (which was observed as early as April 6, 2001) until at least ten
days after the sore was first identified. Thus, Livingston’s argument that all of Resident 83’s pressure sores
were “medically unavoidable” must be rejected.
Next, Livingston maintains that the ODH surveyors incorrectly concluded that Resident 83 had a
standard mattress. In support of this argument, Livingston submits that the colors of the standard and
pressure relieving mattresses are identical. Hence, it contends that the accuracy of the ODH surveyors’
critical commentary is highly questionable and, as such, this creates a genuine issue of a material fact which
cannot be resolved by this application for dispositive relief. Unfortunately for Livingston, this argument
– standing alone – does not provide any support for its contention that Resident 83’s mattress was pressure-
relieving. In fact, Alice Cox, a surveyor for the ODH, stated that a Livingston nurse, Karen Paxton, who
accompanied her at all times during the survey, confirmed that this resident had been given a standard
mattress. Livingston does not challenge this assertion.
In summary, the undisputed facts demonstrate that Resident 83 (1) had two pressure sores, neither
of which were “medically unavoidable,” and (2) was given a standard mattress in violation of her plan of
care. Thus, the evidence shows that Livingston failed to comply with the participation requirement of 42
C.F.R. § 483.25(c).
B.
RESIDENT 73
According to the ODH surveyors, Resident 73 is an obese woman who was fed breakfast while lying
in a urine soaked bed with a pressure sore on her ocks. In its opposition papers, Livingston initially
states that the pressure sore on Resident 73’s ocks developed unavoidably as a direct result of her
extreme obesity. According to Walden, this resident was “so large and medically complicated, she could
only sleep while lying on her back. It is impracticable to prevent small and minor pressure areas caused by
skin on skin contact from folds of flab on this resident’s ocks.” J.A. at 167 (Walden Decl.).
Livingston also takes issue with the ODH surveyor’s observations that Resident 73 was fed breakfast
while lying on a bed soaked with urine. In its brief, Livingston maintains that it “had (and continues to
have) serious disputes and concerns about the accuracy of those notes prepared by the surveyor and relied
upon in her Declaration in support of CMS’ Motion [for summary judgment] that allegedly concern this
resident.” Pet’r Final Br. at 26.
Both of these arguments by Livingston were rightly rejected by the administrative law judge and the
DAB. Even if it is true, Walden’s statement that the pressure sore on Resident 73’s ocks was medically
unavoidable is without consequence. Livingston was not cited because this resident had developed a
pressure sore. Rather, the citation was issued because Livingston had failed to provide her with the proper
standard of care. It is undisputed that Resident 73’s plan of care identified her as having a high risk for
pressure sores because of her incontinence and total dependence on the nursing staff. Livingston does not
dispute that Resident 73’s bed was covered in urine or that she was fed breakfast while lying in a urine-
soaked bed. This undisputed evidence runs directly counter to the resident’s plan of care and the federal

4Under C.F.R. § 483.25(c), a facility will not be penalized if a pressure sore is identified as “medically unavoidable,” unless
the facility fails to provide services that are necessary for the prevention and healing of the pressure sore.

No. 03-3489

Livingston Care Center v. Dep’t of Health and Human Svcs., et al.

Page 6

regulations which govern skin care. The surveyor’s observations clearly indicate that Livingston violated
42 C.F.R. § 483.25(c) when it failed to treat and prevent Resident 73 from sustaining pressure sores.
Similarly, Livingston provides no support for its challenge to the credibility of the ODH surveyor’s
notes. Walden asserts that she “[has] serious disputes and concerns about the accuracy of those notes
prepared by [the ODH Surveyor] Gilmore allegedly concerning this resident.” J.A. at 166 (Walden Decl.).
However, this conclusory statement, while expressing her concerns regarding the ODH surveyor’s
credibility, does not set forth any supporting evidence to contradict the surveyor’s observations. Thus, we
find that the undisputed facts relating to the treatment of Resident 73 indicate that Livingston did not comply
with her applicable plan of care.
RESIDENT 90
C.
The medical records for Resident 90 indicate the existence of two possible pressure sores: one on
her right heel, and one on her right metatarsal. In his decision granting CMS’s summary judgment motion,
the administrative law judge accepted Livingston’s assertion that the wound on Resident 90’s right heel was
not a pressure sore.
However, it is important to note that Livingston has presented no evidence to dispute the conclusion
that Resident 90 had a pressure sore on her right metatarsal. In addition, this Court fully agrees with the
conclusions of the administrative law judge and the DAB that Livingston had failed to provide the necessary
treatment to this patient in violation of the Tag F-314 requirement.
In its brief and during oral argument, Livingston contended that it is being improperly sanctioned
in the absence of any actual harm to Resident 90 and the other residents. We reject this argument for two
main reasons. First, although the administrative law judge determined that the wound on Resident 90’s right
heel was not a pressure sore, he did not render a similar conclusion with regard to the wound on the patient’s
right metatarsal.5
Second, and more importantly, the regulations clearly state that evidence of actual harm is not a
prerequisite for a finding of substantial noncompliance. 42 C.F.R. § 488.408 provides that Livingston, like
every other skilled nursing facility, is subject to a monetary penalty if there are “[w]idespread deficiencies
that constitute no actual harm with a potential for more than minimal harm but not immediate jeopardy; or
… [o]ne or more deficiencies that constitute actual harm that is not immediate jeopardy.” Since Livingston’s
failure to provide pressure relieving devices represents a potential harm for its residents, it may be properly
sanctioned by CMS. Id. Furthermore, the applicable participation requirement mandates that “each resident
must receive and the facility must provide the necessary care and services to attain or maintain the highest
practicable physical, mental, and psychosocial well-being, in accordance with the comprehensive
assessment and plan of care.” 42 C.F.R. § 483.25. This preventive focus of the regulation directs facilities
to provide a certain standard of care to prevent the risk of pressure sores for its residents, even if no pressure
sores actually develop. That standard of care is tailored for each individual resident in his or her plan of
care. Thus, we find that HHS was justified in penalizing Livingston for its failure to follow the pressure
relieving recommendations in its residents’ plans of care.6

5Similarly, there is no dispute that Residents 83 and 73 developed pressure sores during their stay at Livingston.
6In making this determination, we recognize that courts should “give substantial deference to an agency’s interpretation of
its own regulations.” St. Francis Health Care Centre v. Shalala, 205 F.3d 937, 943 (6th Cir. 2000) (internal citations omitted).

No. 03-3489

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Page 7

D.

RESIDENT 1
Here, the ODH surveyors observed Resident 1 without a pressure relieving device and with a
pressure sore on the top of his right foot. After reviewing the record, it was the determination of the
administrative law judge that there were disputed material facts as to whether Livingston gave proper care
to Resident 1’s right foot and if there was an avoidable pressure sore on his foot. However, the opinions of
this administrative law judge and the DAB support our view that Livingston did not comply with the
participation requirements in 42 C.F.R. § 483.25(c) because it failed to provide a pressure relieving cushion
as specified by Resident 1’s plan of care.
Livingston’s primary argument is that it has not had an opportunity to respond to these “late hour
assertions” because the surveyor’s observations regarding the lack of pressure relieving devices were not
recorded in the Notice which outlined its alleged noncompliance. This argument is without merit. Although
these observations were not included in the Notice, they were contained in CMS’s Motion for Summary
Judgment, which was filed on November 16, 2001. Livingston had a full opportunity to respond to these
allegations prior to the hearing before the administrative law judge on May 22, 2002. Consequently, there
is no indication that Livingston has been prejudiced by the inclusion of these allegations.
Livingston’s second argument is that Resident 1 was provided pressure relieving devices. In support
of this position, Livingston again cites Walden’s declaration, who states that “pressure relieving devices
were made available.” J.A. at 161 (Walden Decl.). However, Walden makes no reference to the existing
medical records or any other documentation in support of her conclusory statement. This statement does
not raise a genuine issue of a material fact. Rather, the undisputed facts clearly demonstrate that Livingston
failed to provide the proper pressure relieving devices as required by the plan of care.
RESIDENT 20
E.
Like Residents 90 and 1, the facts indicate that Resident 20 was observed without a pressure
relieving device on his wheelchair in direct contravention of his plan of care. The administrative law judge
concluded that, for purposes of summary judgment, Livingston had raised a genuine issue as to whether the
wound on this resident’s ock was a pressure sore. However, he also decided that (1) this dispute
regarding Resident 20’s wound was not material and (2) Livingston was in noncompliance because of its
failure to provide him with a pressure relieving device. The DAB also concluded that its finding of
noncompliance resulted from Livingston’s failure to provide the specific treatment recommendations in
Resident 20’s plan of care.
Given that Resident 20 was at some risk for the development of pressure sores, Livingston’s failure
to provide the requisite pressure relieving devices listed in his plan of care constitutes a sufficient basis for
a finding of noncompliance under 42 C.F.R. § 483.25(c).
IV.
In summary, Livingston was penalized because the undisputed facts and medical records
unambiguously demonstrate that it (1) did not prevent the development of pressure sores on Residents 73,
83, and 90 and (2) failed to provide the requisite pressure relieving devices in each resident’s plan of care.
Livingston has not presented a sufficiency of evidence upon which to challenge the conclusion of the CMS
that it failed to provide the necessary care and treatment to prevent pressure sores as required by 42 C.F.R.
§ 483.25(c). Since Livingston has failed to substantially comply with the participation requirements of 42
C.F.R. § 483.25(c), we AFFIRM the grant of summary judgment in favor of the HHS.

Logan v. HCA

Case 3:05-cv-00006 Document 90 Filed 11/30/2005 Page 1 of 14(cid:10)

BRADLEY S. LOGAN, M.D.,
Plaintiff,

v.
HCA, INC., et al.,
Defendants.

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
)
)
)
)
) Case No. 3:05-0006
)
Judge Echols
)

)
)
MEMORANDUM
Pending before the Court are the Report and Recommendation
entered by the United States Magistrate Judge on May 23, 2005,
(Docket Entry No. 85), and Plaintiff’s Objections (Docket Entry No.
86.) Defendants have filed Responses to the Objections by
incorporating the arguments made in their Memoranda in Support of
their Motions to Dismiss. (Docket Entry Nos. 87 & 88.) The
Magistrate Judge recommends that this Court take the following
actions: (1) grant the various Defendants’ Motions to Dismiss
(Docket Entry Nos. 37, 45, 47, 49, 56 and 61); (2) dismiss this
action; and (3) deem Defendants’ Motion to Strike (Docket Entry
No. 55) moot.

I. STANDARD OF REVIEW
When a party makes timely objections to a Report and
Recommendation, the Court “shall make a de novo determination of
the matter and may conduct a new hearing, take additional evidence,
recall witnesses, recommit the matter to the Magistrate Judge for
further proceedings and consideration, conduct conferences with
counsel for the affected parties, and receive additional arguments,

1

Case 3:05-cv-00006 Document 90 Filed 11/30/2005 Page 2 of 14(cid:10)

either oral or written, as the District Judge may desire.”
L.R.M.P. 9(b)(3). See also, Fed.R.Civ.P. 72(a).
II. ANALYSIS
Plaintiff, a physician, was a member of the medical staff at
St. Petersburg General Hospital (“St. Petersburg”) in St.
Petersburg, Florida. After resigning that position, he moved to
Lawrenceburg, Tennessee where he practiced at Crockett General
Hospital (“Crockett”). Plaintiff then left that position, having
already signed a Recruiting Agreement for clinical privileges at
the Skyline Medical Center (“Skyline”) in Nashville. The
Recruiting Agreement was ultimately rescinded and a second
application withdrawn.
Because of the events which led to his resignations at St.
Petersburg and Crockett, as well as the denial of privileges at
Skyline, Plaintiff filed suit in this Court against dozens of
individual and corporate defendants. The Complaint is long,
spanning almost eighty pages. Such “length and breadth,” Plaintiff
explains, was necessary to “document[] almost ten years of
malfeasance by multiple entities and agents[.]” (Docket Entry No.
86 at 1.)
Plaintiff alleges he was harmed by assorted acts of one or
more of the Defendants relating to his employment at St. Peterburg
and Crockett General Hospitals, and that misconduct on the part of
some Defendants led to the denial of privileges at Skyline. A bevy
of claims for relief are asserted, including fraudulent
misrepresentation;
“suppression”
or
misrepresentation
by

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concealment; conspiracy; negligence; “wantonness”; breach of
contract; abuse of process; violations of the Racketeer Influenced
Corrupt Organizations Act (“R.I.C.O.”), 18 U.S.C. § 1961 et seq.;
“stigmatizing statements” and failure to provide due process in
violation of 42 U.S.C. § 1983; and violations of the Health Care
Quality Improvement Act of 1986 (“HCQIA”).
The Magistrate Judge concluded that Plaintiff’s Complaint
failed to state a claim upon which relief could be granted under 42
U.S.C. § 1983, the HCQIA, or R.I.C.O. That being so, there
remained only state law claims. Since federal question
jurisdiction is the basis for this Court’s original jurisdiction,
the Magistrate Judge recommends that this Court decline to exercise
supplemental jurisdiction over the state law claims and dismiss the
entire action.
Plaintiff takes issue with respect to the Magistrate Judge’s
conclusion his Complaint fails to state a claim under any of the
federal statutes cited. He also takes issue with factual
statements contained in the Report and Recommendation.
A. Objections To Factual Statements
Plaintiff first asserts “[t]he Report contains an error in
substance when it states that Plaintiff, while residing in
Florida[,] resigned his position ‘because of a dispute arising over
his care of certain patients.’” (Docket Entry No. 86 at 2.)
Instead, Plaintiff maintains a more accurate characterization is
that he resigned “when it became apparent that St. Petersburg
General Hospital was acting in an aggressive and harassing matter

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[sic] in reviewing patient charts not only of the Plaintiff but
others; soon it became evident that violations of HCQIA were
occurring.” (Id.)
Plaintiff’s own characterization of this “fact” shows the
Magistrate Judge did not improperly describe what happened. In
Plaintiff’s own words, patient charts were being reviewed by the
hospital, suggesting that there was a dispute or question over
patient care. Regardless, this “fact” is not relevant in ruling on
the legal question of whether this Court has federal question
jurisdiction.
Plaintiff next objects because while the Report and
Recommendation states that an administrator of St. Petersburg
notified the National Practitioner Data Base (“NPDB”) and the
Florida Agency for Healthcare Administration (“AHCA”) that
Plaintiff had resigned while under investigation, the Report
dismisses any act of mail or wire fraud. Obviously, this is not an
Objection to the fact recounted, i.e., that the NPDB and AHCA were
notified Plaintiff resigned while under investigation, but only an
objection to whether that “fact” was properly taken into account in
ruling on the Motions to Dismiss.
Plaintiff claims “[t]he Report also errs in asserting in the
Background of the case when it proffers as truth that the
Recruiting Agreement with Skyline was rescinded ‘because the
plaintiff had failed to commence the full-time practice of medicine
in the Skyline community on or before January 1, 2002.’” (Id. at
2-3.) Although Plaintiff recognizes “a letter certainly exists

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representing that as the stated reason,” (id. at 3), the Report and
Recommendation fails to assert that another doctor with a
“virtually identical Agreement” (id.) in similar circumstances did
not have her agreement rescinded, nor does the Report and
Recommendation indicate “that concurrent events such as
falsification of meeting dates were being perpetrated.” (Id.)
Tellingly, Plaintiff does not dispute that he did not in fact
commence the full-time practice of medicine in the Skyline
community by the set date. In this light, the “fact” identified by
the Magistrate Judge cannot be viewed as erroneous–only that other
“facts” were not included. Given the length of Plaintiff’s
Complaint, it was necessary for the Magistrate Judge to pare down
the facts and set forth only those which were relevant to
determination of the legal issues at hand. Besides, even if
another doctor in allegedly similar circumstances was treated
differently, and even if dates of meetings were misstated (or in
Plaintiff’s words “falsified”), this would not change the Court’s
conclusion that Plaintiff does not have a federal claim so as to
support this Court’s jurisdiction.
Finally in regard to the facts, Plaintiff asserts that while
the Magistrate Judge was correct in setting forth a chronology of
events which related to Plaintiff’s failure to obtain privileges at
Skyline, the Report and Recommendation failed to include “key
occurrences such as the Credentials Committee meeting in December,
2002 or the Hearing Committee in May, 2003.” Id. Again, given the
abundance of “facts” recited throughout the seventy-nine page

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Complaint, it would be virtually impossible for any decision to
coherently contain all of the “facts.” Moreover, inclusion of
these “key occurrences” would not change the outcome–Plaintiff has
failed to state a federal claim upon which relief can be granted.
B. Objections to Legal Analysis
Plaintiff concedes this Court’s jurisdiction to entertain his
claims rests upon the viability of a cause of action under 42
U.S.C. § 1983, the HCQIA and/or R.I.C.O. (Docket Entry No. 86 at
3-4.) Accordingly, the Court will address Plaintiff’s Objections
to the Magistrate’s Recommendations regarding the same.
1. Claim Under 42 U.S.C. § 1983
In the Report and Recommendation, the Magistrate Judge noted
that in order to establish a claim under Section 1983, Plaintiff
must show that Defendants, while acting under color of state law,
deprived Plaintiff of some right or privilege guaranteed by the
Constitution or laws of the United States. (Docket Entry No. 85 at
5.) The Magistrate Judge also noted the Defendants in this case
were not individuals or entities with direct authority to act on
behalf of the state and therefore, to be liable under Section 1983,
it was necessary that their actions be fairly attributable to the
state. Since Plaintiff failed to offer any “factual allegations
that would seriously suggest that the defendants’ actions are
fairly attributable to either Florida or Tennessee,” (id.),
Plaintiff failed to state a claim under 42 U.S.C. § 1983.
Plaintiff asserts “[t]he Report errs in stating: ‘To state a
claim for relief under 42 U.S.C. 1983, the plaintiff must plead and
prove that the defendants, while acting…”’ (Docket Entry No. 86
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at 5.) It is more correct to say, Plaintiff contends, that “to
succeed in proving a claim the defendant must first plead and then
prove.” Id. (emphasis in original).
Perhaps this is a scrivener’s error on Plaintiff’s part since
Defendants need not prove anything with respect to Plaintiff’s
claims. Regardless, the Magistrate Judge did not err in writing in
the conjunctive, even though proof follows only if a claim is
properly pled. In fact, in a recent case, the United States Court
of Appeals for the Sixth Circuit, on appeal from the grant of a
motion to dismiss, wrote: “All § 1983 violations depend on the
plaintiff’s ability to plead and prove that a defendant: 1) acting
under the color of state law 2) deprived a plaintiff of a right
secured by the Constitution or law of the United States.” Stanley
v. City of Norton, 124 Fed.Appx. 305, 309, 2005 WL 65522 at *4 (6th
Cir. Jan. 6, 2005)(emphasis added).
The linchpin of Plaintiff’s objection to the Report and
Recommendation about section 1983 liability is his belief that “the
‘state law’ in question here arises from the United States
Congress.” (Docket Entry No. 86 at 7.) In this vein, Plaintiff
writes “[u]nder cloak of authority and qualified immunity granted
by Congress in HCQIA, the Defendants performed their racketeering
acts, which resulted in the placement of stigmatizing statements
into a repository founded by and overseen by the federal
government, as well as loss of property memorialized by the
Recruiting Agreement with Skyline.” (Id. at 5.) Plaintiff then
writes:

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Under HCQIA the government has, by reciprocity in
authority and protection, entwined itself with hospitals
for the responsibility of peer review activity, has set
standards for its performance and reporting, has provided
qualified immunity for its participants acting in their
official capacities and when compliant with the HCQIA due
process requirements, and has imposed penalties on
participants who fail to report their findings to NPDB.
Id. Plaintiff also states “[o]ne of the very reasons this claim was
brought in a federal court is that the federal HCQIA is the law
being perverted by hospitals and their peer review committees for
unintended nefarious purposes.” Id. at 10.
Insofar as Plaintiff is suggesting that HCQIA supplies the
necessary “state action” for a Section 1983 claim, he is mistaken.
As Plaintiff recognizes, the HCQIA is a federal statute. Where
actions are taken under color of federal law, and not color of
state law, no section 1983 action will lie. Ana Leon T. v. Federal
Reserve Bank of Chicago, 823 F.2d 978, 931 (6th Cir. 1987). See
also, Sarin v. Samaritan Health Center, 813 F.2d 755, 759 (6th Cir.
1987)(in physician’s claim relating to revocation of staff
privileges, no state action was found to exist even though hospital
was licensed by the state and received federal funds); Medical
Society of New Jersey v. Mottola, 320 F.Supp.2d 254, 264 (D.N.J.
2004)(plain reading of statute indicates Congress did not intend
HCQIA to allow private individuals to bring section 1983 action);
Canady v. Providence Hospital, 903 F.Supp. 125, 127 (D.D.C.
1995)(“A decision to restrict staff privileges does not constitute
state action.”).

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Perhaps recognizing the difficulty with the assertion that the
HCQIA could provide the requisite action “under color of state law”
for purposes of section 1983 liability, Plaintiff notes that
Tennessee and Florida peer review statutes “depend upon federal
HCQIA” and that Tennessee’s provisions “reference[s] and combine[s]
the federal law [.]” (Docket Entry No. 86 at 7.)
It is true that Tennessee Code Annotated § 63-6-219, which is
the Tennessee Peer Review Law, begins by referencing the
“applicable policies of the Health Care Quality Improvement Act of
1986.” The statute then goes on to note it is “the stated policy
of Tennessee to encourage committees made up of Tennessee’s
licensed physicians to candidly, conscientiously, and objectively
evaluate and review their peers’ professional conduct, competence,
and ability to practice medicine.” This grant of statutory
authority for peer review, however, does not provide a basis for a
claim under Section 1983.
In this regard, the decision in Freilich v. Board of Directors
of Upper Chesapeake Health, Inc., 142 F.Supp.2d 679 (D.Md. 2001),
aff’d, 313 F.3d 205 (4th Cir. 2002), is instructive. There, a
physician filed a seventy-six page complaint against a hospital,
assorted individuals, and the government, claiming the hospital and
its board of directors participated in “a predetermined and a
deliberate scheme and systematic program designed to force her out
of [the hospital] in violation of [her] Constitutional Rights and
in violation of Maryland’s Health Code[.]” Id. at 685.

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In addressing the doctor’s Section 1983 claim, the court in
Freilich properly noted that to allege such a claim it was
necessary that there be not only action under state law but also
that “the party charged with the deprivation must also be a person
who may fairly be said to be a state actor.” Id. (citing, American
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 n.8, 119 S.Ct. 977
(1999)). While the Maryland regulations required hospitals to
“establish a formal reappointment process and to collect and review
information,” the regulations did not require hospitals to deny
reappointment and the state played no role in the individual
hospital’s decision whether or not to reappoint a particular
physician. Id. at 686-87. Since the regulatory scheme left the
decision to the judgment of the hospitals, “the actions of [the
hospital] and the individual hospital defendants are not fairly
attributable to the state.” Id. at 686. See also Pinhas v. Summit
Health Ltd., 894 F.2d 1024, 1033-34 (9th Cir. 1989)(there was no
state action even though hospital’s peer-review process was
statutorily mandated since decision to remove physician’s staff
privileges was made by private parties).
Likewise in this case, the Tennessee statute cited by
Plaintiff does not transform the present Defendants into state
actors. Instead, committees made up of licensed physicians are to
review their peers’ professional conduct.
The Magistrate Judge did not err in concluding that
Plaintiff’s Complaint failed to state a claim under Section 1983
upon which relief could be granted. Accordingly, Plaintiff’s

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objections relating to his purported Section 1983 claim will be
overruled.
2.
The HCQIA Claim
The Report and Recommendation notes that courts have
repeatedly held the HCQIA does not establish a private right of
action and cites for that proposition Wayne v. Genesis Medical
Center, 140 F.3d 1145, 1148 (8th Cir. 1998); Hancock v. Blue Cross-
Blue Shield of Kansas, Inc., 21 F.3d 373, 374-75 (10th Cir. 1994)
and Bok v. Mutual Assurance, Inc., 119 F.3d 927, 928-29 (11th Cir.
1997). Recently, the United States Court of Appeals for the
Eleventh Circuit added its view on the issue holding “[t]here is no
express private right of action under the HCQIA.” Morris v. Emory
Clinic Inc., 402 F.3d 1076, 1083 (11th Cir. 2005).
In his objections, Plaintiff claims he is not disputing the
results of a peer review proceeding “but rather is claiming that
his due process rights were denied during the peer review
proceedings[.]” (Docket Entry No. 86 at 11.) Plaintiff also
claims that in enacting the HCQIA, “[t]he federal government had no
intention of creating a private system that would deprive
physicians of due process rights.” (Id. at 11-12.)
While Plaintiff’s suggestion may be facially correct, the
purpose of the Act was not to protect physicians subjected to peer
review. Quite the contrary, the “grant of immunity to review
boards strongly suggests that the Act was not enacted to benefit
the physician undergoing peer review.” Wayne, 140 F.3d at 1148.
In any event, the issue is whether the HCQIA provides for a private

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cause of action. Those Circuits which have addressed the issue
uniformly answer the question in the negative and Plaintiff has
presented no reason why this Court should hold to the contrary.
Thus, Plaintiff’s objections which assert the Magistrate Judge
erred in concluding there is no private right of action under the
HCQIA will be overruled.
3. The R.I.C.O. Claim
The Magistrate Judge recommends dismissal of the R.I.C.O.
count because “the overt acts complained of involve the alleged
misrepresentation of facts relating to peer reviews of the
plaintiff’s competence as a physician, his application for or
resignation of hospital privileges and ‘stigmatizing’ statements
made about him,” none of which “acts qualify as racketeering
activity.” (Docket Entry No. 85 at 8.) Plaintiff objects noting
“[w]ire and mail fraud certainly qualify as acts of racketeering,”
(Docket Entry No. 86 at 15), and since he alleged the exchange of
mail (particularly the sending of the reports to the NPDB and AHCA)
and telephone calls, he stated a claim for relief under the civil
R.I.C.O. statute.
Wire and mail fraud can be the predicate racketeering acts for
purposes of R.I.C.O. However, merely mailing peer review committee
results does not constitute mail fraud. Wasserman v. Maimonides
Medical Center, 970 F.Supp. 183, 188 (E.D.N.Y. 1997).
Moreover, with respect to the reports which were sent to NPDB
and AHCA, Plaintiff has failed to plead sufficient facts which
would demonstrate that he relied on Defendants’ alleged fraudulent

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misrepresentation, something which is necessary to support a
R.I.C.O. claim. Central Distributors of Beer, Inc. v. Conn, 5 F.3d
181, 184 (6th Cir. 1993); Blount Financial Services, Inc. v. Heller,
819 F.2d 151, 152 (6th Cir. 1987).
The facts as pled by Plaintiff are general allegations of
fraud with no specificity as to how the statements were false.
This is insufficient because allegations of fraudulent predicate
acts are subject to the heightened pleading requirements of Rule
9(b) of the Federal Rules of Civil Procedure. “In addition to
alleging the particular details of a fraud, ‘the plaintiff[] must
allege facts that give rise to a strong inference of fraudulent
intent.’” First Capital Asset Management, Inc. v. Satinwood, Inc.,
358 F.3d 159, 179 (2d Cir. 2004)(emphasis in original, citation
omitted). Citing acts without showing they are indictable is
insufficient to survive a motion to dismiss. Howard v. America
Online, 208 F.3d 741, 748 (9th Cir. 2000).
Here, Plaintiff has alleged no facts which would show the
predicate acts are indictable or give rise to the strong inference
of fraudulent intent on behalf of the Defendants. Accordingly, the
Magistrate Judge was correct in ruling the Plaintiff’s R.I.C.O
claim failed to state a claim upon which relief could be granted
and Plaintiff’s objections to the contrary will be overruled.
III. CONCLUSION
On the basis of the foregoing, Plaintiff’s Objections (Docket
Entry No. 86) will be overruled and the Magistrate Judge’s Report
and Recommendation (Docket Entry No. 85) will be adopted.

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Defendants’ Motions to Dismiss (Docket Entry Nos. 37, 45, 47, 49,
56 and 61) will be granted. Defendants’ Motion to Strike Portions
of the Complaint (Docket Entry No. 40) will be deemed moot. This
case will be dismissed with prejudice.
An appropriate Order will be entered.

_________________________________
ROBERT L. ECHOLS
UNITED STATES DISTRICT JUDGE

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