Levinger v. Mercy Med. Ctr., Nampa

IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 27591

WILLIAM LEVINGER, M.D.,

Plaintiff-Appellant,

2003 Opinion No. 92

Boise, January 2003, Term

Filed: July 24, 2003

Frederick C. Lyon, Clerk

SUBSTITUTE OPINION
THE COURT’S PRIOR
OPINION DATED APRIL 16,
2003, IS HEREBY WITH-
DRAWN.

v.

and

Defendant-Respondent,

MERCY MEDICAL CENTER, NAMPA

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Defendants.
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COASTAL EMERGENCY MEDICAL
GROUP, INC., dba COASTAL PHYSICIAN
SERVICES OF THE WEST, INC., dba
ANESTHESIA PARTNERS, INC.; ROBERT
FALE and JOHN DOES I – X, whose true
Identities are presently unknown,

Appeal from the District Court of the Third Judicial District, State of Idaho, Canyon
County. Hon. Sergio A. Gutierrez, District Judge.

District court’s summary judgment order dismissing employment discrimination
claims and order denying plaintiff new trial based on juror misconduct, affirmed.

Seiniger Law Offices, Boise, for appellant. W. Breck Seiniger Jr. argued.

Givens Pursley, LLP, Boise, for respondent. Robert B. White argued.
____________________________

TROUT, Chief Justice
This case is before this Court on William Levinger, M.D.’s (Levinger) appeal
following a jury verdict in favor of Mercy Medical Center, Nampa (Mercy). In the
proceedings below, Levinger claimed Mercy tortiously interfered with his prospective
business advantage, violated the Rehabilitation Act of 1973 (Rehabilitation Act), and
violated the Americans with Disabilities Act (ADA).

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I.
FACTUAL AND PROCEDURAL BACKGROUND
Levinger is a board certified anesthesiologist. Coastal Physicians Services of the
West, Inc. (“Coastal”) is a corporation engaged in providing licensed physicians to staff
medical care facilities. Mercy is a general acute care hospital located in Nampa, Idaho.
Coastal had an exclusive contract with Mercy to provide anesthesiology services. Levinger
had an independent contractor agreement with Coastal. Levinger provided anesthesiology
services and had medical staff privileges at Mercy pursuant to the Mercy-Coastal contract.
In April 1996, Levinger’s erratic behavior set in motion a chain of events that led to
the termination of his contract with Coastal and revocation of medical staff privileges at
Mercy. In early April, Levinger announced his candidacy and began campaigning for
Congress. After taking several days off from his job at Mercy, Levinger telephoned his
supervisor to say that he was not presently safe to practice medicine and would not be
coming to work on his next scheduled day. As a result of increasingly poor work
performance and concerns about his mental health, an intervention group then met at
Levinger’s home to insist that Levinger seek voluntary treatment for what was apparently a
psychological disorder. That same day, Mercy suspended Levinger’s privileges on a
precautionary basis, pursuant to Mercy’s Medical Staff Bylaws. The following day,
Levinger went to a television news studio for an interview about his campaign. When
Levinger refused to leave the television station, studio personnel called police and Levinger
was arrested in a partially disrobed condition. Levinger was then involuntarily committed to
a psychiatric ward, where he remained until May 11, 1996. Levinger’s behavior during this
time was diagnosed as an acute manifestation of bipolar illness known as hypomania.
Coastal terminated its employment agreement with Levinger on May 6, 1996. The
Levinger-Coastal agreement provided that Coastal had the right to immediately terminate the
contract without advance notice if Levinger was denied medical staff privileges or if
Levinger’s license to practice medicine was suspended or revoked. In addition to having his
staff privileges suspended by Mercy on April 16, Levinger’s license to practice medicine was
suspended by the Idaho State Board of Medicine on May 3, 1996. As a result of Coastal’s
termination of its contract with Levinger, Mercy terminated Levinger’s clinical privileges on
May 30, as required by the Mercy-Coastal and Levinger-Coastal agreements. Levinger’s

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license to practice medicine was restored on October 30, 1996, but he has not worked as an
anesthesiologist at Mercy since.1
Levinger filed a complaint against Mercy on May 14, 1998, which he later amended.
Levinger claimed Mercy tortiously interfered with his prospective business advantage by
undermining his ability to obtain employment with the exclusive providers of anesthesia
services at Mercy. Levinger also alleged Mercy violated the Rehabilitation Act and the ADA
by discriminating against him based on his bipolar condition. Mercy moved for summary
judgment on all of Levinger’s claims. The district court denied the motion on Levinger’s
claim that Mercy tortiously interfered with his prospective business advantage and allowed
the issue to proceed to trial. The district court also granted in part and denied in part Mercy’s
motion for summary judgment under the Rehabilitation Act and the ADA.
With regard to the Rehabilitation Act and ADA claims, the district court first ruled as
a matter of law that Levinger did not have a disability. Second, the district court ruled that
there was a question of fact as to whether Levinger was regarded by Mercy as having a
disability. Therefore, Levinger was able to proceed to trial on the theory that Mercy had
discriminated against him because it regarded him as having a disability. Third, the district
court ruled Levinger was not an “otherwise qualified individual” or a “qualified individual
with a disability” under the Rehabilitation Act or the ADA at any time after April 1996.
Consequently, Levinger was precluded from bringing an employment discrimination claim
under the Rehabilitation Act or Title I of the ADA. And finally, the district court denied
Mercy’s motion under the Rehabilitation Act and the ADA as to whether it discriminated
against Levinger by denying him access to its facility, hospital privileges, and the benefits of
services, programs, and activities at Mercy.
The case then went to jury trial on the remaining issues of whether Mercy tortiously
interfered with Levinger’s prospective business advantage, and whether Mercy violated the
Rehabilitation Act and ADA by regarding Levinger as being disabled and denying him
hospital privileges, access to its facility, and the benefits of services, programs, and activities
at Mercy. After the jury returned its verdict in favor of Mercy, Levinger moved for a new

1 The Mercy-Coastal agreement terminated on March 31, 1997. Medical Anesthesia
Consultants (“MAC”) succeeded Coastal as the exclusive provider of anesthesia services.

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trial based on juror misconduct and irregularity in the proceedings. Levinger provided the
affidavit of one of the jurors who claimed that another juror had made statements during the
trial evidencing bias against Levinger. The district court denied Levinger’s motion for new
trial by ruling that Levinger’s evidence regarding juror misconduct was inadmissible under
Idaho Rule of Evidence 606(b). In addition, the district court ruled the alleged irregularity in
the proceedings – the district court’s June 20, 2000, ruling on Mercy’s motion for summary
judgment – was not appropriately raised by Levinger in the post-trial motions and was
otherwise harmless error. This timely appeal followed.
II.
STANDARD OF REVIEW
When considering a ruling on motion for summary judgment, this Court’s standard of
review is the same as that used by the trial court in ruling on the motion. Barnes v. Barnes,
135 Idaho 103, 105, 15 P.3d 816, 818 (2000). The Court must liberally construe the facts in
favor of the non-moving party and determine whether there is a genuine issue as to any
material fact, and whether the moving party is entitled to judgment as a matter of law.
I.R.C.P. 56(c). In making this determination, all allegations of fact in the record, and all
reasonable inferences from the record are construed in the light most favorable to the party
opposing the motion. Thomson v. City of Lewiston, 137 Idaho 473, 476, 50 P.3d 488, 491
(2002). The burden of proving the absence of material facts is upon the moving party. Id.
Once the moving party establishes the absence of a genuine issue, the burden shifts to the
nonmoving party to show that a genuine issue of material fact on the challenged element of
the claim does exist. The nonmoving party may not rest upon the mere allegations or denials
contained in the pleadings, but must come forward and produce evidence by affidavits or as
otherwise provided in the rules to set forth specific facts showing that there is a genuine issue
for trial. I.R.C.P. 56(e). Failure to do so will result in an order granting summary judgment.
When reviewing a decision on a new trial based on juror misconduct, this Court
applies an abuse of discretion standard. Hughes v. State, 129 Idaho 558, 561, 929 P.2d 120,
123 (1996). While we must review the evidence, we are not in a position to weigh the
evidence as the trial court does. The trial court’s determination not to grant a new trial will

Levinger inquired about joining MAC, but he was told there was no opening for another
physician.

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not be overturned absent manifest abuse of discretion. Jones v. Panhandle Distribs., Inc.,
117 Idaho 750, 755, 792 P.2d 315, 320 (1990). The primary focus on review is the process
by which the district court reached its decision, not the result of the district court’s decision.
Hughes, 129 Idaho at 561, 929 P.2d at 123. Thus, the sequence of our inquiry is:
(1) whether the district court correctly perceived the issue as one of discretion;
(2) whether the district court acted within the outer boundaries of its discretion
and consistently with the legal standards applicable to the specific choices
available to it; and (3) whether the district court reached its decision by an
exercise of reason.

Sun Valley Shopping Center v. Idaho Power, 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991).
III.
DISCUSSION
Levinger seeks a new trial based on juror misconduct. When a motion for a new trial
is made because of juror misconduct, the district court must determine whether there has
been “a showing that prejudice reasonably could have occurred.” Leavitt v. Swain, 133 Idaho
624, 629, 991 P.2d 349, 354 (1999) (citation omitted). Before reaching that question,
however, the party seeking a new trial must demonstrate that juror misconduct occurred.
Levinger has not sufficiently raised the issue of whether juror misconduct occurred.
Levinger challenges the dismissal of his ADA and Rehabilitation Act employment
discrimination action on summary judgment. The Rehabilitation Act and the ADA prohibit
certain employers from discriminating against individuals on the basis of their disabilities.
Levinger cannot, however, proceed with his employment discrimination claims against
Mercy since he is an independent contractor.
A. Levinger is not entitled to a new trial based on juror misconduct.
Levinger contends the district court erred in denying a new trial due to juror
misconduct. Levinger supported his claim of juror misconduct by filing an affidavit from
one of the jurors which stated that after jury selection, but prior to the presentation of
evidence, another juror said to her: “We are just going to fry this guy and roll him out of
here” (or words to that effect). The remainder of the juror’s affidavit made reference to the
jury’s deliberations and what took place during the deliberative process. Levinger argues
that the comment referred to him and, as a result, denied his right to a fair trial by impartial
jurors. The district court denied Levinger’s motion, ruling the evidence regarding juror

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misconduct was inadmissible under Idaho Rule of Evidence 606(b). The district court further
found that Levinger had failed to raise any issues about dishonesty during voir dire
questioning, which might implicate the analysis set out in McDonough Power Equipment,
Inc. v. Greenwood, 464, U.S. 548, 556 (1984), adopted by this Court in State v. Tolman, 121
Idaho 899, 902, 828 P.2d 1304, 1307 (1992).
A new trial may be granted due to misconduct of a jury. I.R.C.P. 59(a)(2). Before
reaching the question of whether there was juror misconduct, a court must first consider
whether there is admissible evidence supporting such a claim. Under Rule 606(b), there are
certain matters a juror may not testify about when there is a challenge to the validity of a
verdict. A juror may not testify about:
[A]ny matter or statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that juror’s or any other juror’s
mind or emotions as influencing the juror to assent to or dissent from the
verdict . . . or concerning the juror’s mental processes in connection therewith,
nor may a juror’s affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded from testifying
be received for [the purpose of inquiring into the validity of a verdict].

I.R.E. 606(b). In addition to specifying which matters jurors are prohibited from testifying
about, the Idaho Rules of Evidence expressly describe the only matters jurors may testify to:
“[A] juror may testify on the questions whether extraneous prejudicial information was
improperly brought to the jury’s attention or whether any outside influence was improperly
brought to bear upon any juror and . . . whether or not the jury determined any issue by resort
to chance.” Id.
The role of I.R.E. 606(b) is to guide a court in determining what evidence may be
considered by the court to impeach a verdict. That rule, however, does not have application
to information brought forth which challenges other conduct of jurors during the trial, apart
from their deliberations. An affidavit alleging information which calls into question a juror’s
responses to questions during voir dire does not fall within the limitations of I.R.E 606(b).
See, e.g., U.S. v. Henley, 238 F.3d 1111, 1121 (9th Cir. 2001) (“Where… a juror has been
asked direct questions about racial bias during voir dire, and has sworn that racial bias would
play no part in his deliberations, evidence of that juror’s alleged [racially biased remarks to
other jurors] is indisputably admissible for the purpose of determining whether the juror’s
responses were truthful.”).

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This conclusion is consistent with the United States Supreme Court’s decision in
McDonough Power Equipment, Inc. v. Greenwood, 464, U.S. 548 (1984), where a test was
established for determining when a new trial is required due to juror dishonesty during voir
dire. Id. at 556. We previously adopted the McDonough Power test; however, no analysis
was provided of the interplay between the test for a new trial due to juror dishonesty during
voir dire and I.R.E. 606(b).2 Today we make clear that I.R.E. 606(b) does not bar the
introduction of juror affidavits revealing dishonesty during voir dire.3
The district court in this case found, however, that Levinger did not raise the issue
beyond challenging juror deliberations and did not allege dishonesty of a juror during voir
dire, which would trigger the McDonough Power test. We have articulated the particularity
that a trial court should require of the party seeking relief pursuant to a motion for new trial:
Trial judges should not be required to attempt to guess at the applicable rule
governing each charge of error claimed by the moving party. It is incumbent
upon counsel to set out the legal basis for each motion, set forth the basis in
the record upon which the motion rests, and specify the applicable Rule of
Civil Procedure.

O’Dell v. Basabe, 119 Idaho 796, 809, 810 P.2d 1082, 1095 (1991). Levinger moved for a
new trial based on misconduct of the jury under I.R.C.P. 59 (a)(2); however, he did not state
with particularity the legal basis for the motion – he did not cite to the McDonough Power
test adopted by this Court; nor did he set forth the basis in the record upon which he was
making his motion. He did not point to a material question that the juror failed to answer
honestly on voir dire, or show that a correct answer to that question would have provided a

2 In State v. Tolman, 121 Idaho 899, 828 P.2d 1304 (1992), we adopted the McDonough
Power test for determining when a new trial is warranted due to a juror’s dishonesty during
voir dire. Id. at 902, 828 P.2d at 1307. To obtain a new trial when a juror has failed to
disclose bias during questioning at voir dire, “a party must first demonstrate that a juror
failed to answer honestly a material question on voir dire, and then further show that a
correct response would have provided a valid basis for a challenge for cause.” Id. (quoting
McDonough Power Equipment v. Greenwood, 464 U.S. 548, 555-556 (1984)). The Court of
Appeals has held that the proof of dishonesty must be by clear and convincing evidence. See
State v. Reutzel, 130 Idaho 88, 936 P.2d 1330 (Ct. App. 1997).

3 However, we are not unmindful of the policy goals underlying I.R.E. 606(b), namely, to
promote finality, protect jurors from post-trial inquiry or harassment, and to avoid the
practical concern that an affidavit by a juror to impeach the verdict is potentially unreliable.
See Watson v. Navistar Corp., 121 Idaho 643, 657, 827 P.2d 656, 670 (1992).

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basis for a challenge for cause. Levinger’s briefing acknowledges that he did not bring to the
district court’s attention his allegation that a juror lied during voir dire. Instead, Levinger’s
attorney claims that allegation was implicit in his post-trial oral argument. That is not
sufficient to put either the district court or opposing counsel on notice of the actual basis for
the motion for new trial.4 For that reason, we find the district court properly addressed the
issues raised by the motion and did not err in denying it.
B. The district court correctly granted summary judgment on Levinger’s employment
discrimination claims.

Levinger next raises the issue of whether the district court erred in granting summary
judgment on Levinger’s employment discrimination claims. Specifically, the district court
granted summary judgment to Mercy on two grounds that Levinger now appeals. First, the
district court found that Levinger is not “disabled” under the Rehabilitation Act or the ADA.
And second, the district court found that Levinger was not a “qualified individual with a
disability.” As for Levinger’s claims that Mercy engaged in discriminatory conduct because
it regarded him as having a disability, and that Mercy denied him access to its services, the
district court allowed those claims to proceed to jury trial. We affirm the district court’s
grant of summary judgment in favor of Mercy; however, we do so on a different basis.
Further, we uphold the jury verdict since we have not been presented with a record to review
on appeal.
Levinger blends the Rehabilitation Act and ADA employment discrimination claims
together. Nevertheless, the standards found in Title I of the ADA are used to determine
whether there has been actionable employment discrimination under either act. See 29
U.S.C. § 794(d) (1988) (stating Title I ADA standards apply to employment discrimination
under Rehabilitation Act). To bring a Title I ADA employment discrimination claim, the
plaintiff must be an “employee.” 42 U.S.C. §§ 12112(a), 12111(4). The district court did not
discuss this baseline requirement, but the employment discrimination provisions under Title I
of the ADA do not protect independent contractors. See PGA Tour, Inc. v. Martin, 523 U.S.
661, 692 (2001). It is undisputed that Levinger had an independent contractor arrangement

4 Had such notice been given, opposing counsel and/or the trial court may have taken steps to
present further evidence or require an evidentiary hearing, which did not take place in this
case.

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with Coastal and provided services at Mercy via the Mercy-Coastal agreement.
Consequently, Levinger does not have any employment discrimination rights under the ADA
or the Rehabilitation Act.
Levinger’s status as an independent contractor does not preclude Rehabilitation
Act/Title III ADA claims for other than employment discrimination, and such claims were
tried before a jury properly resolved by the district court. The district court found that
Levinger was not disabled and not a “qualified individual with a disability.” The district
court may have erred in finding that Levinger was not disabled, because previous case law
has established that Levinger’s diagnosed condition of bipolar disorder is recognized as
causing a disability protected by the Rehabilitation Act and the ADA. See, e.g., Bergsrud v.
Columbia-Lea Reg’l Med. Ctr., 2000 WL 33287447 (D.N.M. 2000); see also Sutton v.
United Air Lines, Inc., 527 U.S. 471, 482-83 (1999) (holding disability determination is made
at time of alleged discrimination, not later when remedial measures are used to correct
disability). However, the district court correctly concluded Levinger was not a “qualified
individual with a disability.” See 42 U.S.C. § 12111(8) (defining “qualified individual”).
When Levinger’s medical privileges and medical license were suspended, he was no longer
capable of performing the essential functions of his job.5 Thus, we affirm the district court’s
grant of summary judgment against Levinger because he was not a “qualified individual.”
The district court properly submitted the remaining issues to the jury. Specifically,
those other issues dealt with whether Mercy violated the Rehabilitation Act and ADA by
regarding Levinger as being disabled and denying him hospital privileges, access to its
facility, and the benefits of services, programs, and activities at Mercy. Levinger has not
raised an issue with regard to the jury’s resolution of the issues before it; thus, we assume
that the jury correctly decided the issues before it since we have no record of the trial
transcripts to review. See Student Loan Fund of Idaho, Inc. v. Duerner, 131 Idaho 45, 54,
951 P.2d 1272, 1281 (1997) (“This Court does not assume error on appeal; rather, the party
assigning error must affirmatively show it.”).
C. No fees are awarded to either party.

5 Mercy had no control over these actions, as Levinger stipulated that suspension of his
medical privileges was appropriate since he was not able to practice medicine at the time of

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Because genuine issues have been raised, this is not a frivolous appeal warranting an
award of fees.

IV.
CONCLUSION
We hold that the district court correctly denied Levinger’s request for a new trial. In
so holding, we announce that the exclusionary effect of I.R.E. 606(b) does not apply to the
admissibility of juror affidavits used to prove dishonesty in voir dire. We also affirm the
district court’s grant of summary judgment against Levinger’s employment discrimination
claims, because Levinger’s status as an independent contractor precludes granting relief for
employment discrimination based on Title I of the ADA and the Rehabilitation Act. Costs to
defendant-respondent.
Justices SCHROEDER, KIDWELL, EISMANN and Justice Pro Tem
SCHWARTZMAN, CONCUR.

his bipolar condition. Moreover, the Idaho State Board of Medicine, and not Mercy,
suspended Levinger’s license to practice medicine.

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Lewis v. Capalbo

Lewis v. Capalbo,

No. 2103 (N.Y. App. Div. Feb. 1, 2001)

After performing an initial examination of an expectant mother immediately prior to
delivery, the obstetrician on call allegedly left the hospital and had no further
contact with the patient. The mother testified that, although she was placed
on a fetal monitor, she began substantial labor before an unidentified doctor
arrived to oversee the delivery. Complications during the delivery allegedly
resulted in the baby?s development of seizure disorders and long-term cognitive
and development problems. The New York Supreme Court, Appellate Division, held
that the woman?s claim raised triable issues of material facts regarding the
on-call physician?s negligence. Concluding that the obstetrician owed the woman
a duty to personally monitor her during the delivery process, the Court recognized
that a doctor who undertakes to examine and treat a patient creates a doctor-patient
relationship.

Levinger v. Mercy Med. Ctr., Nampa,

Levinger v. Mercy Med. Ctr., Nampa,
No. 27591 (Idaho
July 24, 2003)

An
anesthesiologist who worked as an independent contractor for a group with an
exclusive contract had his hospital privileges suspended and subsequently revoked
for several incidents of erratic behavior. The anesthesiologist was later diagnosed
with bipolar disorder, and sued the hospital alleging violations of the Rehabilitation
Act (RA) and Americans with Disabilities Act (ADA). The trial court dismissed
the RA and ADA claims because neither Acts’ employment discrimination provisions
applied to independent contractors. The Supreme Court of Idaho upheld the trial
court’s decision, reaffirming that to bring a Title I ADA employment discrimination
claim, the plaintiff must be an "employee." The court added that the
standards used to determine actionable Title I ADA discrimination were the same
standards used to determine RA discrimination.

Levy v. Clinton Mem’l Hosp.

Levy v. Clinton Mem’l Hosp., No. CA2007-05-027 (Ohio
App. Dec. 28, 2007)

The Court of Appeals of Ohio affirmed the decision
of the trial court granting declaratory relief in favor of a hospital and
held that the hospital could grant exclusive privileges to its employees
to practice medical specialties at the hospital’s cancer center while excluding
other credentialed specialists. The court also concluded that the bylaws
of the hospital did not create a contract between the hospital and physicians
holding privileges at the hospital. The court’s final ruling instructed
that the physicians were not entitled to a hearing under the hospital’s
bylaws because any adverse effect on the physician’s privileges due to
the granting of exclusive privileges to other physicians was not a result
of "professional concerns."

The hospital,
with the advice of a consultant, opened a new cancer center with state-of-the-art
equipment used to deliver radiation therapy. It then entered into an employment
agreement with a physician for the provision of radiation oncology services.
The physician, by board resolution, was designated as the exclusive provider
of radiation oncology services at the cancer center. The hospital declined
to contract with several other physicians, under their proposed terms, who
already had privileges at the hospital. As a result of these circumstances,
the physicians brought suit. Noting the lower court’s finding that the hospital
made the decision to adopt a closed-staff policy after significant study
and preparation and with the purpose of implementing a holistic approach,
the court followed Ohio precedent and declined to intervene in the hospital’s
actions because there was no evidence of behavior that was "arbitrary,
capricious, contrary to public policy, or procedurally unfair." Additionally,
the court determined that the hospital’s bylaws did not constitute a contract
with the privileged physicians because there was no mutuality of obligation
since the hospital had no legally binding duties under the bylaws. Lastly,
it was decided that the physicians had no right of appeal under the hospital’s
bylaws because the bylaws only afford an appeal if an adverse effect on a
physician’s privileges is the result of "professional concerns." Here,
the adverse effect was a business decision and not one of "professional
concern." Thus,
the appeal process was not triggered.

Lewellen v. Schneck Med. Ctr.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

KEVIN LEWELLEN, and JANET
LEWELLEN,

Plaintiffs,

vs.

SCHNECK MEDICAL CENTER a/k/a
SCHNECK MEMORIAL HOSPITAL, A.
DAVIS, RN, JOHN M. REISERT, MD,
JOHN FL ALEXANDER, MD, and
SHARON DUFFIELD, RN,

Defendants.

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4:05-cv-083-JDT-WGH

ENTRY ON PLAINTIFFS’ MOTION FOR LEAVE TO FILE AN AMENDED
COMPLAINT (Doc. No. 102)1

This cause comes before the court on the Plaintiffs’ Motion for Leave to File an

Amended Complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure. The

Plaintiff2 sues defendant health care providers under 42 U.S.C. § 1983 (“Section 1983”)

and the Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd (“EMTALA”).

1 This Entry is a matter of public record and will be made available on the court’s web
site. However, the discussion herein is not sufficiently novel to justify commercial publication.

2 Mr. Lewellen’s wife, Janet, is also named as a Plaintiff in this case. The Complaint
contains a cause of action for Janet Lewellen’s loss of consortium through EMTALA. Mrs.
Lewellen is not included in the additional claims added in the Amended Complaint; therefore, for
the sake of clarity, throughout this Entry the court will refer to Plaintiff in the singular.

I.

BACKGROUND

The facts of this case are discussed completely in the court’s Entry on

Defendants’ Motions for Summary Judgment entered on August 16, 2007. For the

purposes of this Entry, only the facts relevant to Plaintiff Kevin Lewellen’s Motion for

Leave to File an Amended Complaint will be discussed. That motion seeks to add

claims against the Defendant Schneck Medical Center (“Schneck”) under § 1983 and to

add an additional count under § 1983 against Defendants John M. Reisert, M.D. and

Amanda Davis, R.N.

After getting in a car accident on June 8, 2003, Mr. Lewellen was taken to

Schneck by two police officers who suspected that he had been operating a vehicle

while under the influence. Ms. Davis admitted Mr. Lewellen and completed an initial

assessment of his condition. Dr. Reisert then examined Lewellen. After taking x-rays,

Ms. Davis informed Mr. Lewellen that Dr. Reisert was discharging him. Against the

wishes of Mr. Lewellen, he was discharged and taken to jail. It was later discovered

that Mr. Lewellen was not properly diagnosed at the hospital and suffered a burst

fracture in his spine which, because it went untreated, permanently damaged his spinal

cord.

The Plaintiff seeks to add two counts under 42 U.S.C. § 1983 against Schneck,

Reisert, and Davis based on violations of the federal EMTALA statute. Count IV alleges

that Dr. Reisert and Davis, acting under color of state law and in their capacity as

agents of Schneck, acted to deprive Lewellen of his rights under EMTALA to an

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adequate screening exam and to not be released from Schneck until his medical

condition was stable. Count V alleges two claims. First, that Schneck is liable under §

1983 for violating Plaintiff’s rights under EMTALA. Second, that Schneck is liable for

the individual defendants’ violations of Lewellen’s constitutional rights because Schneck

failed to promulgate adequate policies, procedures, and protocols and failed to

adequately train its professional medical staff.

Dr. Reisert has entered a response opposing the proposed amendment. He

argues that the proposed claim against him under 42 U.S.C. § 1983 premised on

violations of EMTALA is not recognized by law and should be denied.

II.

ANALYSIS

A.

STANDARD FOR LEAVE TO FILE AN AMENDED COMPLAINT

A plaintiff may amend his complaint “only by a leave of court or by written

consent of the adverse party . . . .” Fed. R. Civ. P. 15(a). Rule 15(a) provides “leave

shall be freely given when justice so requires . . . .” Fed. R. Civ. P. 15(a). The right to

amend is not absolute, Brunt v. Serv. Employees Int’l Union, 284 F.3d 715, 720 (7th Cir.

2002), and can be denied for undue delay, bad faith, dilatory motive, prejudice, or

futility, Ind. Funeral Dirs. Ins. Trust v. Trustmark Ins. Corp., 347 F.3d 652, 655 (7th Cir.

2003). “[A]n amendment may be futile when it fails to state a valid theory of liability, or

could not withstand a motion to dismiss.” Bower v. Jones, 978 F.2d 1004, 1008 (7th

Cir. 1992); see also Foman v. Davis, 371 U.S. 178, 182 (1962). A decision to grant or

deny a motion for leave to file an amended complaint is “a matter purely within the

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sound discretion of the district court.” Guise v. BWM Mortg., LLC., 377 F.3d 795, 801

(7th Cir. 2004) (quoting J.D. Marshall Int’l, Inc. v. Redstart, Inc., 935 F.2d 815, 819 (7th

Cir. 1991)).

B.

SECTION 1983 CLAIMS FOR DEPRIVATION OF RIGHTS GRANTED
UNDER EMTALA

EMTALA does not provide a private right of action against an individual

physician. The EMTALA remedies provision is found at 42 U.S.C. § 1395dd and reads

as follows:

(d) Enforcement
(1) Civil Money penalties

. . .

(B) . . . [A]ny physician who is responsible for the examination,
treatment, or transfer of an individual in a participating hospital, including a
physician on-call for the care of such an individual, and who negligently
violates a requirement of this section . . . is subject to a civil money penalty
of not more than $50,000 for each such violation and, if the violation is gross
and flagrant or is repeated, to exclusion from participation in this subchapter
and State health care programs.
. . .

(2) Civil enforcement
(A) Personal Harm
Any individual who suffers personal harm as a direct result of a
participating hospital’s violation of a requirement of this section may, in a civil
action against the participating hospital, obtain those damages available for
personal injury under the law of the State in which the hospital is located, and
such equitable relief as is appropriate.

The United States Supreme Court and the Seventh Circuit have not addressed

the issue of whether a private right of action can be brought against a physician under

EMTALA. However, decisions from other circuits addressing the issue have concluded

that no private right of action may be brought against an individual physician. See

Eberhardt v. City of L.A., 62 F.3d 1253, 1256-57 (9th Cir. 1995) (“The plain text of the

4

EMTALA explicitly limits a private right of action to the participating hospital.”); King v.

Ahrens, 16 F.3d 265, 270-71 (8th Cir. 1994) (“The plain language indicates that section

1395dd(d)(2)(A) creates a cause of action only against a ‘participating hospital.” The

statutory definition of ‘participating hospital’ does not encompass an individual

physician.”); Delaney v. Cade, 986 F.2d 387, 394 (10th Cir. 1993); Baber v. Hosp. Corp.

of Am., 977 F.2d 872, 877-78 (4th Cir. 1992) (“[N]othing in the language of the statute

permits a private individual to recover personal injury damages from a physician for an

EMTALA violation.”). The statute is not ambiguous and provides that a physician who

violates EMTALA is subject to the assessment of civil fines. It does not provide for a

private right of action by the person injured against such a physician. Mr. Lewellen

does not dispute that EMTALA does not create a private right of action against

individual physicians. In fact, the Plaintiff states in his reply brief that “the fact that

EMTALA does not create a direct action against Dr. Reisert is no obstacle to Mr.

Lewellen’s [Section] 1983 action against Dr. Reisert.” (Pls.’ Reply Br. 4.)

The Plaintiff argues that § 1983 allows him to bring claims premised on violations

of EMTALA. Section 1983 exists to provide a private cause of action for any person

who is subjected to “the deprivation of any rights, privileges, or immunities secured by”

the Constitution and the laws of the United States. 42 U.S.C. § 1983. The statute

provides that every person who acts to deprive another of those rights, privileges, or

immunities “shall be liable to the party injured in an action at law . . . .” Id. Plaintiff’s

proposed § 1983 claim is premised on the fact that the Defendants’ acts and omissions

deprived him of the rights EMTALA granted him. Mr. Lewellen argues that § 1983 is

5

intended to apply in situations in which the plain text does not indicate that there is a

private remedy within the statute. Mr. Lewellen states that “[n]umerous Supreme Court

decisions have upheld cases under 42 U.S.C. § 1983 for violations of statutes that

clearly did not provide a private remedy for violations of those statutes.” (Pls.’ Reply Br.

3) (citing Wilder v. Va. Hosp. Ass’n, 496 U.S. 498 (1990)). While this is true, because of

the enforcement procedures already present under EMTALA, the Sea Clammers

doctrine precludes § 1983 from providing additional causes of action.

The Supreme Court has stated “[w]hen the remedial devices provided in a

particular Act are sufficiently comprehensive, they may suffice to demonstrate

congressional intent to preclude the remedy of suits under [Section] 1983.” Middlesex

County Sewerage Auth. v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981). The Court

has also held that if Congress intended that one of the statutory schemes should be the

exclusive way to vindicate a right, then plaintiffs are required to sue only under that

statute. Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 378 (1979)

(holding that Title VII of the Civil Rights Act of 1964 preempted a cause of action for

employment discrimination under 42 U.S.C. § 1985(3)).

In Waid v. Merrill Area Public Schools, the Seventh Circuit was faced with a §

1983 issue very similar to the one before this court. The plaintiff in Waid brought an

action for sexual discrimination against the school district and individual school officials.

Waid v. Merrill Area Pub. Schs., 91 F.3d 857, 860 (7th Cir. 1996). Title IX allowed for

damages to be awarded against educational institutions, but not against individual

school officials. Id. at 862. The court held that because of the remedies allowed for

6

under Title XI “Congress intended to place the burden of compliance . . . on educational

institutions themselves, not on the individual officials associated with those institutions.”

Id. Therefore, “Congress effectively superseded a cause of action under § 1983. . . .”

Id. at 863.

In the instant case, EMTALA provides for effective remedies that place the

burden of compliance upon the medical institution. 42 U.S.C. § 1395dd(d)(2)(A)

provides a comprehensive enforcement mechanism that provides sufficient remedies to

encourage enforcement of EMTALA. It also provides for adequate compensation of

injured plaintiffs. Congress expects that medical institutions establish policies that

diminish or eliminate violations of EMTALA by its physicians. EMTALA provides that

both physicians and hospitals will be held accountable for damages with the provision of

a civil penalty, see 42 U.S.C. § 1395dd(d)(1)(A), (B), but specifically includes only

hospitals as liable for penalties brought under the civil enforcement section, see 42

U.S.C. § 1395dd(d)(2)(A). In Sea Clammers, the Supreme Court instructed that “when

a state official is alleged to have violated a federal statute which provides its own

comprehensive enforcement scheme, the requirements of that enforcement procedure

may not be bypassed by bringing suit directly under § 1983.” Sea Clammers, 453 U.S.

at 20. Congress’s omission of language in EMTALA indicating a private right of action

against individual physicians purposefully precludes plaintiffs from asserting claims

against those individual physicians. Similarly, because the remedies provided in

EMTALA’s enforcement scheme are sufficiently comprehensive, § 1983 may not be

used as a vehicle to allege EMTALA violations against a hospital. See id.

7

In the instant case, Mr. Lewellen has already brought claims against Schneck

under the EMTALA statute. He has also alleged claims against Schneck under § 1983

for failing to provide adequate medical care for a pretrial detainee. This attempt to bring

additional claims against Schneck, Reisert, and Davis under § 1983 because of a

violation of EMTALA is only doubling claims to increase the chance of success.

Because § 1983 claims alleging a deprivation of the Plaintiff’s rights under EMTALA

would not survive a motion to dismiss, the addition of claims alleging such a violation

would be futile.

C.

SECTION 1983 CLAIMS FOR VIOLATION OF CONSTITUTIONAL
RIGHTS

In addition to the § 1983 claims for a deprivation of rights under EMTALA brought

in Counts IV and V, Count V of the Amended Complaint also seeks to add an additional

§ 1983 claim against Schneck for a violation of Mr. Lewellen’s constitutional rights.

Count V states that Schneck is also liable for the individual defendants’ violations of

Lewellen’s constitutional rights because Schneck failed to promulgate adequate

policies, procedures, and protocols and failed to adequately train its professional

medical staff. The Defendants have not challenged the addition of this claim, therefore

the Plaintiff will be allowed to amend his complaint and add this additional claim under §

1983 for a violation of his constitutional rights.

8

III.

CONCLUSION

Because EMTALA provides a comprehensive enforcement mechanism for

injured plaintiffs, the Plaintiff is preempted from bringing § 1983 claims against Schneck,

Dr. Reisert, and Ms. Davis premised on violations of EMTALA. The Plaintiff is allowed

to add the additional claim in Count V against Schneck under § 1983 for violations of

Plaintiff’s constitutional rights based on Schneck’s failure to promulgate adequate

policies, procedures, and protocols and failure to adequately train its professional

medical staff. The court therefore GRANTS IN PART and DENIES IN PART Plaintiff’s

Motion for Leave to File an Amended Complaint (Doc. No. 102). The Plaintiff has ten

days from the date of this Entry to file an Amended Complaint in accordance with the

rulings herein.

ALL OF WHICH IS ENTERED this 9th day of November 2007.

John Daniel Tinder, Judge
United States District Court

9

_______________________________ John Daniel Tinder, Judge United States District Court Copies to:

Magistrate Judge William G. Hussmann, Jr.

William David Bridgers
NEAL & HARWELL PLC
dbridgers@nealharwell.com

Gary J. Clendening
MALLOR CLENDENING GRODNER & BOHRER
gjclende@mcgb.com

Kristen Vanderkooi Dyer
NEAL & HARWELL PLC
kdyer@nealharwell.com

Philip Norman Elbert
NEAL & HARWELL PLC
pelbert@nealharwell.com

Christopher Charles Hagenow
HOPPER & BLACKWELL
chagenow@hopperblackwell.com

Kirk Robert Jocham
HALL RENDER KILLIAN HEATH & LYMAN
kjocham@hallrender.com

Belinda Rose Johnson
MALLOR CLENDENING GRODNER & BOHRER LLP
bjohnson@mcgb.com

Edward J. Liptak
CARSON BOXBERGER
liptak@carsonboxberger.com

Christopher L. Riegler
HALL RENDER KILLIAN HEATH & LYMAN
criegler@hallrender.com

10

Lewellen v. Schneck Med. Ctr.

EMTALA

Lewellen v. Schneck Med. Ctr., No. 4:05-cv-083-JDT-WGH (S.D. Ind. Nov. 9, 2007)

In a suit brought by a patient under the Emergency Medical Treatment and Active Labor Act ("EMTALA"), the United States District Court for the Southern District of Indiana denied the patient’s motion to amend his complaint to add two claims under 42 U.S.C. §1983 (based on the alleged violations of EMTALA) against a hospital and a physician and nurse who treated him there.

The patient was injured in a car accident and transported to the hospital by two police officers who suspected he had been driving under the influence. The nurse completed the initial assessment and the physician examined him. Against the patient’s wishes, they discharged him and he was taken to jail. It was later discovered that he had a burst fracture in his spine which was not properly diagnosed at the hospital. As a result, the patient suffered permanent damage to his spinal cord. The court first observed that the omission of language in EMTALA indicating a private right of action against individual physicians purposefully precludes a patient from asserting claims against those individual physicians. Further, because the remedies provided in EMTALA’s enforcement scheme are sufficiently comprehensive, §1983 may not be used as a vehicle to allege additional EMTALA violations against the hospital. Thus, the patient was denied his motion to amend his complaint to include the two claims under 42 U.S.C. §1983.

 

Lewellen v. Schneck Med. Ctr.,

EMTALA

Lewellen v. Schneck Med. Ctr., No. 4:05-cv-00083-JDT-WGH (S.D. Ind. Aug. 16, 2007)

The federal District Court for the Southern District of Indiana denied the motions for summary judgment filed by the county hospital, its employees, and Medical Staff members in a case brought by a patient who alleged that he had been harmed as a result of an inadequate screening examination in the emergency room. The court found: (1) the actions of employees and Medical Staff members at a county hospital could constitute state action for purposes of alleged Constitutional violations; and (2) an emergency medical screening that was "so cursory that it was not designed to identify acute and severe symptoms" may be found not to satisfy the requirements of the Emergency Medical Treatment and Active Labor Act ("EMTALA").

The patient suffered a fractured vertebra in a car accident. He was taken to a county hospital’s emergency department, discharged without the fracture being diagnosed, and taken immediately to jail for operating a vehicle while intoxicated. Over the course of his stay in jail, the undiagnosed fracture caused permanent damage.

The patient asserted that two physicians and two nurses violated his Fourteenth Amendment right to adequate medical care as a pretrial detainee. He also claimed that the county hospital violated the screening and stabilization requirements of EMTALA. The court denied the defendants’ motions for summary judgment, finding that the cursory nature of the examination of the patient could lead a jury to conclude that the county hospital, physicians, and nurses had violated his Constitutional and EMTALA rights.

 

Lewis v. Capalbo

2001 WL 83417 (N.Y.A.D. 1 Dept.)

Satira C. Lewis, etc., et al., Plaintiffs-Appellants,

v.

Andrea Capalbo, M.D., Defendant-Respondent, Beth Israel Medical Center,

Defendant.

2103

Supreme Court, Appellate Division, First Department, New York

Decided on February 1, 2001

Rosenberger, J.P., Ellerin, Lerner, Friedman JJ.

APPEARANCES OF COUNSEL

Morton Alpert



Richard W. Nicholson

PER CURIAM OPINION

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered on or about August 18, 1999,
which granted the motion for renewal by defendant Andrea Capalbo, M.D., and upon renewal, granted
summary judgment dismissing the complaint against her, unanimously modified, on the law, to the
extent of denying summary judgment and reinstating the complaint, and otherwise affirmed, without costs.

Plaintiff, Paulette S. Lewis, on behalf of her infant daughter Satira, and individually, brought this action
alleging medical malpractice committed by defendant hospital and defendant Andrea Capalbo, M.D.
during the birth of Satira. Dr. Capalbo was one of five obstetricians at the Manhattan Medical Group also
known as the Yorkville HIP Center (“HIP Center”), which Ms. Lewis visited for prenatal care numerous
times a few months near the end of her third trimester.

On the day of delivery, August 4, 1986, at 4:30 p.m., Dr. Capalbo, the HIP Center attending physician on
call, examined Ms. Lewis, but left the hospital afterwards and had no further contact with her. Although
Ms. Lewis was placed on a fetal monitor, according to her testimony she began the labor process on her
own until the baby’s head had partially traveled outside the birth canal and she was holding it on the
palm of one of her hands. At this point, her husband ran out and called in an unidentified doctor standing
in the hallway who, along with several nurses, completed the delivery.

Satira was delivered at 4:55 A.M. on August 5, 1986, weighing five pounds six ounces with an APGAR
score of eight at one minute and an APGAR score of nine at five minutes (scores range from one to 10
and a number above seven is normal). However, in the subcategory of respiratory effort, Satira received
an APGAR score of one at one minute and two (changed from one) at five minutes, and in the category
of skin color, an APGAR score of one both after one minute and after five minutes (scores for
subcategories range from zero to two, and a score of one signifies an irregularity, while a score of two is normal).

Despite the APGAR score of two after five minutes for respiratory effort, it is undisputed that a short time
after her birth Satira was admitted to the neonatal intensive care unit with serious respiratory difficulties
where she remained for 12 days until her discharge, the first four of which she was in a ventilator.
Satira’s newborn medical records are incomplete. She currently suffers from seizure disorders and
cognitive and developmental problems that will require lifelong medical care. Dr. Capalbo moved for
summary judgment dismissing the complaint against her, arguing that she had not delivered Satira and
that Ms. Lewis’s prenatal care was within acceptable standards of medical care. The IAS court initially
denied the motion because the medical expert’s name and signature were redacted. On renewal and
upon submission of an unredacted medical affidavit, the motion was granted on the grounds that Dr.
Capalbo did not owe a duty to monitor Ms. Lewis personally during Satira’s birth and that Satira’s injuries
were not the result of an independent act or omission by Dr. Capalbo. For the reasons stated below, we disagree.

As a preliminary matter, the IAS court exercised its discretion appropriately in permitting Dr. Capalbo to
renew her motion for summary judgment upon an unredacted medical expert affidavit in the interest of
justice (see generally, Petito v Verrazano Contracting Co., 246 AD2d 636).

It is well established that a doctor who undertakes to examine and treat a patient (thus creating a doctor-patient relationship) and then abandons the patient may be held liable for medical malpractice (O’Neill v
Montefiore Hospital, 11 AD2d 132; Heraud v Weissman,
– A2d -, 714 NYS2d 476). In this case, there are
triable issues of fact as to whether Dr. Capalbo was Ms. Lewis’s doctor and whether she departed from
good medical practice by allegedly abandoning Ms. Lewis after admitting her to the hospital during the
early stages of labor.

Dr. Capalbo argues that there was no doctor-patient relationship between her and Ms. Lewis because
she only saw Ms. Lewis once at the HIP Center and neither Ms. Lewis nor Ms. Lewis’s husband
attempted to contact her prior to Satira’s delivery. However, Ms. Lewis testified in her deposition that she
was told that Dr. Capalbo would be her attending physician and the one who would deliver her baby
(compare, Kleinert v Begum, 144 AD2d 645 [no prior relationship between doctor and patient other than
examination two hours prior to the baby’s delivery]). Dr. Capalbo, in fact, was the attending physician
who examined Ms. Lewis when she was admitted to Beth Israel in the early stages of labor. Although Dr.
Capalbo was not in the hospital at Satira’s delivery, she signed Ms. Lewis’s labor and delivery chart as
well as her discharge forms certifying that the matter of Ms. Lewis’s treatment was “cleared for billing.”
Thus, a jury could reasonably conclude that Dr. Capalbo was Ms. Lewis’s doctor.

Dr. Capalbo does not dispute that she left the hospital after examining Ms. Lewis and had no further
contact with her. Instead, she argues that she did not have a duty to continually monitor Ms. Lewis and
thus did not abandon her because the admission and medical authorization form Ms. Lewis signed
stated that the delivery and related care could be provided by “associates or assistants” of Beth Israel
Medical Center of Dr. Capalbo’s choice. The record, however, contains nothing to indicate that Dr.
Capalbo affirmatively transferred the care of Ms. Lewis to the two doctors whose names, in addition to
Dr. Capalbo’s, appear in the Labor and Delivery Summary form (even though neither of them
participated in Satira’s delivery according to the testimony of Ms. Lewis). Dr. Capalbo did not inform Ms.
Lewis that the two doctors would be monitoring her after the initial examination took place. In addition,
there is nothing in the record to indicate that the two doctors were associates or assistants of Dr. Capalbo.

As to proximate cause, the affidavit of plaintiffs’ pediatric neurologist expert, Dr. Daniel G. Adler, stated
that it was his impression that Satira suffered from, among other things, “newborn respiratory distress,”
“seizure disorder,” and “language-based learning disability,” which resulted from “a significantly
abnormal newborn interval.” Dr. Adler based his opinion, among other things, on a review of Satira’s
labor and delivery records, her billing records, and a personal examination. Dr. Adler’s affirmation was,
therefore, specific and based on the record (see
Romano v Stanley
90 NY2d 444).

Plaintiffs’ obstetrics expert reviewed Satira’s labor and delivery records as well as Dr. Adler’s report in
concluding that Satira’s condition was probably due to hypoxia (deficient oxygenation of the blood).
According to the expert, had Dr. Capalbo monitored Ms. Lewis’s progress, hypoxia could have been
avoided or significantly minimized.

The experts’ affidavits in conjunction with the lack of fetal monitoring from 3:00 A.M. to 5:00 A.M., along
with Ms. Lewis’s undisputed testimony that the baby was traveling down the birth canal, that the baby
stopped and that she was holding the baby’s head in her hand before any physician attended to the
delivery, raise triable issues of fact regarding Dr. Capalbo’s negligence in failing to attend the delivery of
Satira and whether her absence caused Satira’s injuries.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 1, 2001

N.Y.A.D. 1 Dept. 2001.

Lewis v Capalbo

END OF DOCUMENT

Lewis v. Methodist Hosp

Lewis v. Methodist Hosp.,
No. 02-1555 (7th Cir. Apr. 7, 2003)

A
cardiologist and hospital entered into a contract by which the hospital agreed
to provide billing services for the physician. When a dispute arose as to the
hospital’s provision of services under the agreement, the cardiologist sued
for $15.5 million in damages. The lower court agreed with the hospital’s assertion
that the two-year statute of limitations for tort claims applied to the lawsuit,
since the lawsuit involved the tort of negligent provision of services. Thus,
the lower court dismissed the suit as being untimely. However, the United States
Court of Appeals for the Seventh Circuit applied the six-year statute of limitations
for contract claims, finding that the physician was actually asserting a claim
for breach of contract. Thus, the appeals court allowed the physician’s case
to proceed.

Lewis v. Methodist Hosp.

In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 02-1555
ANTHONY B. LEWIS,

Plaintiff-Appellant,

v.

METHODIST HOSPITAL, INCORPORATED,

Defendant-Appellee.

____________
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:01 CV 175JM—James T. Moody, Judge.
____________
ARGUED SEPTEMBER 26, 2002 —DECIDED APRIL 7, 2003
____________

Before COFFEY, ROVNER, and DIANE P. WOOD, Circuit
Judges.
DIANE P. WOOD, Circuit Judge. Anthony Lewis is a
physician specializing in cardiology. This case concerns
a contract between Lewis and Methodist Hospital in which
Methodist agreed to provide billing services for Lewis’s
cardiology practice. Disputes arose over Methodist’s han-
dling of its responsibilities under the contract, which in
the end caused the parties to end their relationship.
Invoking the diversity jurisdiction of the federal courts,
Lewis (acting in his individual capacity) then sued Meth-
odist for breach of contract and tortious interference
with prospective advantage in business. The district court

2

No. 02-1555

granted Methodist’s motion for summary judgment, on the
ground that Lewis was really asserting tort claims, and
any tort claim was barred by Indiana’s two-year statute
of limitations.
Lewis appeals the district court’s characterization of
his claim as solely a matter of tort law. In his view, Meth-
odist failed to perform its obligations under the contract.
This breach in turn gives rise to a claim for breach of
contract that is subject to Indiana’s more generous ten-
year statute of limitations for written contract actions.
Although we appreciate the district court’s careful effort
to ascertain the governing Indiana rule on this point, we
nevertheless have come to the conclusion that Lewis’s
complaint in part stated a claim for breach of contract.
Accordingly, we reverse and remand for further proceed-
ings on that part of the case. (In so doing, we express no
opinion on the question whether Lewis as an individual
is entitled to sue to enforce rights that may belong only
to his professional corporation, as this was not discussed
in any way by the district court or the parties.)

I
The actual parties to the agreement in question were
Lewis’s professional corporation, Anthony B. Lewis, M.D.,
P.C. (of which he was the sole shareholder) and Methodist
Hospital. On January 1, 1994, they entered into a Manage-
ment Services Agreement (the Agreement) in which the
Hospital agreed to manage Lewis’s cardiology practice
for a one-year term. The Agreement specified that Meth-
odist would provide “staff services, administrative ser-
vices, management support services, billing services, and
purchasing services” to Lewis’s practice. The provision in
the Agreement titled Billing and Collection of Accounts
stated in part, “Hospital shall implement and carry out
billing and collection procedures for medical services using
the Practice’s provider numbers.” The Hospital committed

No. 02-1555

3

itself to hiring and supervising employees as needed to
carry out its duties under the Agreement. The Hospital
received 40% of the net receipts of Lewis’s practice as
payment for its services. The parties twice renewed their
Agreement before allowing it to end on December 31, 1996.
After several unsuccessful attempts to have the Hospital
address his concerns about billing and fee collection, Lewis,
in his individual capacity, filed this lawsuit in federal
court on March 19, 2001.
At the heart of Lewis’s complaint is his allegation that
Methodist Hospital failed adequately to bill and collect
fees from his patients and their insurers for cardiology
services that he provided. In the breach of contract count
he alleged that the Hospital breached its duties under
the Agreement by improperly hiring and supervising
staff or contractors who performed coding, billing and col-
lection work for the practice. Lewis seeks $15,515,806.00
as damages and losses for unbilled and improperly billed
services as well as uncollected charges.
Lewis’s complaint also included a second count for
tortious interference with prospective advantage in busi-
ness. This too was dismissed on summary judgment. Lewis
does not contest that ruling, conceding that his claim
was barred by Indiana’s two-year statute of limitations
for torts. Therefore, the only issue presented in this ap-
peal is whether the Indiana courts would characterize
Lewis’s claim relating to the Hospital’s unsatisfactory
performance of its duties under the contract as a tort
claim. We review the district court’s grant of summary
judgment de novo. Lexington Ins. Co. v. Rugg & Knopp, Inc.,
165 F.3d 1087, 1090 (7th Cir. 1999).

II
In a line of cases that stretches back at least to the late
1800s, the Supreme Court of Indiana has wrestled with

4

No. 02-1555

the dilemma posed by claims that arise under a botched
services contract. See, e.g., Foulks v. Falls, 91 Ind. 315
(1883); Boor v. Lowery, 3 N.E. 151 (Ind. 1885); Flint &
Walling Mfg. Co. v. Beckett, 79 N.E. 503 (Ind. 1906). The
problem, as the court has candidly acknowledged, is that
such claims frequently reflect both tort and contract
concerns. Flint & Walling Mfg. Co., 79 N.E. at 505; see
also INS Investigation Bureau, Inc. v. Lee, 784 N.E.2d 566,
576 (Ind. Ct. App. 2003) (“[I]n a contract for work, there
is an implied duty to do the work skillfully, carefully, and
in a workmanlike manner. Negligent failure to do so is
a tort, as well as a breach of contract.”). Where the char-
acterization of the claim matters for purposes of deciding
which statute of limitations should be applied, the Su-
preme Court of Indiana consistently stresses that “the
applicable statute of limitations should be ascertained
by reference to the nature of the harm alleged rather than
by reference to theories of recovery.” Whitehouse v. Quinn,
477 N.E.2d 270, 273 (Ind. 1985) (citing Boor v. Lowrey, 3
N.E. 151 (Ind. 1885)). This provides us with a starting
point here, but (as the Indiana cases richly illustrate) it
can be a difficult principle to apply in practice.
Our task is to predict how the Supreme Court of Indi-
ana would characterize Lewis’s claim that Methodist
Hospital failed to provide proper billing and fee collection
services for his cardiology practice. See Commonwealth
Ins. Co. v. Stone Container Corp., No. 02-2061, 2003 WL
1400794 at *2 (7th Cir. Mar. 19, 2003); Stephan v. Rocky
Mountain Chocolate Factory, Inc., 129 F.3d 414, 416-17 (7th
Cir. 1997) (citing Todd v. Societe Bic, S.A., 9 F.3d 1216,
1221 (7th Cir. 1993) (en banc) (plurality opinion)). If, as
the district court held, Lewis’s first count in the com-
plaint is properly characterized as a tort, then it is barred
by the two-year statute of limitations for injury to per-
sonal property found in Ind. Code § 34-11-2-4. On the other
hand, if Lewis’s claim against the Hospital is, as Lewis

No. 02-1555

5

argues, for breach of contract, then it is governed by the
ten-year statute of limitations found in Ind. Code § 34-11-2-
11, and Lewis’s March 19, 2001, filing was timely.
The district court, in attempting to make sense of the
Indiana authority on this issue, held that the absence of
a specific term for compliance in the Agreement that
Lewis and Methodist executed necessarily meant that
Lewis’s claim arose solely in tort and had no cognizable
contract dimension. The court relied on an earlier deci-
sion of this court, Rexnord Corp. v. DeWolff Boberg &
Assocs., Inc., 286 F.3d 1001 (7th Cir. 2001), as well as
one decision of the Indiana appeals court, Insul-Mark
Midwest, Inc. v. Modern Materials, 594 N.E.2d 459 (Ind.
Ct. App. 1992). Rexnord and Insul-Mark hold that when
parties to a contract choose to specify in their agreement
the terms and standards by which compliance may be
measured, it is those terms or standards, as opposed to
a general standard of care imposed by tort law, that
apply. Rexnord, 286 F.3d at 1005; Insul-Mark, 594 N.E.2d
at 465. This rule allows parties to contract around the
level of care that would otherwise govern their conduct.
It makes good sense as a matter of policy, both because it
is consistent with the general rule that parties may bar-
gain for a higher standard of care than the general tort
law requires, and because it respects the correlative rule
recognized by Indiana courts (and courts in other states
as well) that where a contract contains a limiting or
qualifying provision, that provision may not be avoided
by casting a suit for breach of the contract as a tort. See,
e.g., Orkin Exterminating Co. v. Walters, 466 N.E.2d 55, 58
(Ind. Ct. App. 1984) (“Bringing a suit in tort does not
allow Walters to avoid the limitation of liability clause in
the contract.”); Travelers Cas. & Sur. Co. v. Elkins Con-
structors, Inc., No. IP97-1807-C-T/G, 2000 WL 724006, *11
(S.D. Ind. May 18, 2000) (summarizing Indiana cases); see
also Better Food Mkts. v. American Dist. Tel. Co., 253 P.2d
10, 15-16 (Cal. 1953).

6

No. 02-1555

What Rexnord, Insul-Mark, and these other cases do
not address, however, is the converse proposition: where
a contract does not specify the terms or standards by
which compliance is measured, any performance related
problems may be resolved only by resorting to tort law.
The district court read these cases as creating that rule
of law, and it is with this portion of its decision that we
respectfully disagree.
In fact, fairly read, the core of Lewis’s action against
Methodist Hospital states a claim for breach of contract.
Two principles that can be distilled from the controlling
precedents of the Supreme Court of Indiana lead us to
this conclusion. First, as we have already mentioned,
that court has held that poorly performed duties assumed
under a services contract generally give rise to an action
in either contract or tort. Flint & Walling Mfg., Co., 79
N.E. at 505. Second, and more importantly, in consider-
ing how to classify a claim for statute-of-limitations pur-
poses, the Supreme Court of Indiana has warned that
Indiana courts (and thus federal courts sitting in diversity
that are applying Indiana law) must not collapse all
breach of contract claims into tort claims. Doing so would
impermissibly effect a judicial repeal of the separate
statutes of limitations that the Indiana legislature has
enacted for breach of contract and oral contract claims.
Lawyers Title Ins. Corp. v. Pokraka, 595 N.E.2d 244, 247
(Ind. 1992). See also Schuman v. Kobets, 716 N.E.2d 355
(Ind. 1999).
Two earlier Supreme Court of Indiana cases that ad-
dress a related question—how to deal with attorney mal-
practice claims—offer helpful guidance as well. The cases
of Shideler v. Dwyer, 417 N.E.2d 231 (Ind. 1981), and
Whitehouse v. Quinn, 477 N.E.2d 270 (Ind. 1985), provide
a useful contrast to Lewis’s case. Shideler and Whitehouse
rest implicitly on the proposition that where one party to
a contract owes a fiduciary duty to the other party, a

No. 02-1555

7

breach of that duty necessarily gives rise to an action in
tort because it is impossible to contract around fiduciary
obligations. Later, in Lawyers Title, the Supreme Court
of Indiana made the point more explicitly, when it ex-
plained that “[u]nlike actions for attorney malpractice,
with which we dealt in Whitehouse, a specific limitation
period of six years for fraud and for breach of an oral
contract is provided by statute.” 595 N.E.2d at 247. See
also O.K. Sand & Gravel, Inc. v. Martin Marietta Corp., 819
F. Supp. 771, 781 (S.D. Ind. 1992) (“The substance and
nature of the injuries claimed in parts of Counts I, II and
IV concern breaches of specific contract terms and failed
expectations. Those alleged harms are separate from the
harms alleged to have resulted from the breach of a fidu-
ciary duty.”). Because no fiduciary relationship existed be-
tween Methodist Hospital and Dr. Lewis, the concern
about preventing parties from contracting around those
special duties does not exist in our case.
The more recent decisions of the Supreme Court of
Indiana, are more directly on point. In Schuman v. Kobets,
the Indiana Supreme Court reversed an appeals court
decision that characterized all of Linda Schuman’s claims
against her former landlords as tort claims. 716 N.E.2d at
356-57. Schuman was diagnosed with histoplasmosis, an
illness that she likely contracted from the excrement
of pigeons that roosted in the broken window casing and
wall of her rented apartment. Schuman’s efforts to get
her landlords to repair the apartment failed, and after
she suffered a near fatal relapse of the sickness, she and
her mother sued them for negligence, breach of implied
warranty of habitability, and nuisance. Id. at 356. The
court of appeals affirmed the trial court’s dismissal of
Schuman’s claim as time-barred under Indiana’s two-year
statute of limitations for personal injury. While the Su-
preme Court of Indiana agreed that the portion of
Schuman’s complaint that sought relief for personal injury

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No. 02-1555

arising from the breach of an oral contract was properly
characterized as a tort claim and thus was barred, it
refused to put all of her claims in the tort basket. Id. at 356.
Specifically, the court reasoned that “[s]everal of her
contentions sound like a contact claim. Since a lease is a
contract, the essence of the landlord-tenant relationship
is contractual in nature. Schuman’s warranty claim, for
example, stems from the oral month-to-month lease be-
tween tenant Schuman and landlord Kobets. Thus, this
claim is governed by” the six-year statute of limitations
for oral contracts found in Ind. Code § 34-1-2-1. Id.
Schuman followed the lead of the court’s earlier deci-
sion in Lawyers Title Insurance Corp. v. Pokraka, where a
title company’s failure properly to record a purchase money
mortgage had the effect of making Pokraka’s interest in the
property junior to a subsequent mortgage. 595 N.E.2d at
246. The court in Lawyers Title rejected an expansive
reading of Whitehouse, which the court limited to the
attorney malpractice area, and instead held that Pokraka’s
claim relating to her security interest in the property was
covered by the six-year limitation period for fraud and
breach of oral contract. Id. at 247.
Our holding in this case is also supported by many
Indiana appeals court decisions as well as decisions of
the lower federal courts that have refused to apply the
two-year tort statute of limitations to actions that arise
in the context of a contract. See, e.g., Orem v. Ivy Tech
State Coll., 711 N.E.2d 864, 868 (Ind. Ct. App. 1999) (em-
ployer’s breach of specific provision in written agreement
gives rise to claim for breach of contract); Wells v. Stone
City Bank, 691 N.E.2d 1246, 1249 (Ind. Ct. App. 1998)
(“Wells does not appear to allege any duty that was owed
to him outside of that duty arising out of his contractual
relationship with the Bank, and he appears to allege no
breach of that duty other than the Bank’s failure to per-
form the contracted-for-service. His action should not

No. 02-1555

9

be completely barred on the ground that it is essentially
a tort claim.”); Sheridan Health Care Ctr. Inc. v. Centen-
nial Healthcare Corp., No. IP01-0186-C-M/S, 2001 WL
1029111, *8 (S.D. Ind. June 19, 2001) (“In the current cir-
cumstances, where two corporate entities have entered
into a contract that defines the rights and duties of the
parties, when one party alleges the other has failed to
perform a duty in the contract, the party is claiming a
breach, not an independent tort that arises from the
relationship between the parties.”).
It is true that there are other decisions of the lower
Indiana courts that point in the opposite direction. See,
e.g., INS Investigation Bureau, Inc. v. Lee, supra; Raquet
v. Thompson, 693 N.E.2d 969 (Ind. Ct. App. 1998); Strayer
v. Covington Creek Condominium Assoc., 678 N.E.2d
1286 (Ind. Ct. App. 1997). If the decisions of the lower
courts pointed consistently toward a different resolution of
the precise question before us, our task would be more
difficult. But they do not, and we must bear in mind
that our ultimate responsibility is to decide this case as
we think the Supreme Court of Indiana would rule. We
are not bound to follow the decisions of the lower Indi-
ana courts except insofar as they serve as a good pre-
dictor of how the Supreme Court of Indiana might de-
cide the question. Cf. Allstate Ins. Co. v. Menards, Inc., 285
F.3d 630, 632-33 (7th Cir. 2002) (holding federal courts
must attempt to predict how state supreme court would
decide question in absence of controlling precedent and
in doing so are not bound by conflicting lower court pre-
cedents); see also Rocky Mountain Chocolate Factory, Inc.,
129 F.3d at 417. But when the decisions of the Indiana
courts point in different directions, as is the case here, it
is our job to look for other reliable predictors of how the
state’s highest court would rule on this issue.
The best predictors, in our view, come from the court’s
own jurisprudence in this area, especially Lawyers Title

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No. 02-1555

and Schuman. Lewis and Methodist Hospital enjoyed a
relationship solely on the basis of their contractual agree-
ment. Absent the Agreement, Methodist owed Lewis
nothing. Bearing in mind the Supreme Court of Indi-
ana’s admonition not to collapse all contract claims into
tort, we conclude that under prevailing Indiana law
Lewis’s first count in his complaint against Methodist
Hospital seeks relief for breach of contract and is thus
governed by the ten-year statute of limitations. In reaching
this conclusion, we suggest nothing about the merits of
Lewis’s claim against the Hospital. See Schuman, 716
N.E.2d at 357.

III
The judgment of the district court is REVERSED and the
case is REMANDED for further proceedings on Lewis’s
claim for breach of contract.

A true Copy:
Teste:

________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—4-7-03