Clinch v. Heartland Health


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This slip opinion is subject to revision and may not reflect the
final opinion adopted by the Court.



Opinion

Missouri Court of
Appeals Western District





Case Style:
Steven L. Clinch, Appellant, v. Heartland Health, Heartland
Regional Medical Center, Midwestern Health Management, Inc., Lowell C. Kruse,
and Michael E. Nellestein, Respondents.




Case
Number:
WD64853




Handdown Date:
09/13/2005




Appeal From:
Circuit Court of Buchanan County, Hon. Randall
Jackson




Counsel for Appellant:
John Kent Thomas




Counsel for
Respondent:
George Edward Leonard and Todd Henry
Bartels




Opinion Summary:

Steven L. Clinch sued Michael E.
Nellestein for tortious interference after Clinch was released from his position
as director of cardiac surgery at Heartland Regional Medical Center. Clinch also
sued his former employer, Midwestern Health Management, Inc., the hospital and
the hospital’s chief executive officer, Lowell C. Kruse, for conspiring to
restrain his trade as a surgeon by keeping him from practicing on the hospital
staff. The circuit court granted defendants’ motions for summary judgment on all
claims. Clinch appeals.

AFFIRMED IN PART AND REVERSED IN PART. REMANDED.


Division holds: 1) The elements of tortious interference with a business
relationship are: (1) The plaintiff was involved in a valid business relationship;
(2) the defendant was aware of the relationship; (3) the
defendant intentionally interfered with the 1) The elements of tortious
interference with a business relationship are: (1) The plaintiff was involved in
a valid business relationship; (2) the defendant was aware of the relationship;
(3) the defendant intentionally interfered with the relationship, inducing
its termination; (4) defendant acted without justification; and (5)
plaintiff suffered damages as a direct result of defendant’s conduct. Nazeri v. Missouri Valley College , 860 S.W.2d 303, 316 (Mo. banc 1993). A third party’s
interference with contracts terminable at will is actionable. Hensen v. Truman Medical Center, Inc. , 62 S.W.3d 549, 553 (Mo. App. 2001).

First, Although Clinch framed his cause of action as tortious
interference with contract, a contract is a business relationship and,
therefore, Clinch is not presenting a new issue on appeal even though he now
phrases his claim as one of tortious interference with business relationship.
See Fischer, Spuhl, Herzwurm and Associates, Inc. v. Forrest T. Jones
and Company
, 586 S.W.2d 310, 315 (Mo. banc
1979)

Next, Clinch needed to establish that
Nellestein acted with the intention of “doing . . . a harmful act without
justification or excuse[.]” Downey v. United
Weatherproofing, Inc.
, 253 S.W.2d 976, 980 (Mo. 1953).
And for the fourth element, Nellestein’s motive is at issue. Community Title Company v. Roosevelt Savings and Loan
Association
, 796 S.W.2d 369, 372 (Mo. banc
1990). There is a genuine issue of material fact as to Nellestein’s actions and
motive. Summary judgment, therefore, was improper.

2) Clinch’s antitrust claims fail because he lacks standing as an
antitrust plaintiff. Clinch needed to show that he was a competitor or consumer
who suffered a direct antitrust injury. Hamilton
v. Spencer
, 929 S.W.2d 762, 767 (Mo. App. 1996); Duvall v. Silvers, Asher, Sher and McLaren, M.D.’s , 998 S.W.2d 821, 825-27 (Mo. App. 1999); Zipper v. Health Midwest , 978
S.W.2d 398, 417-18 (Mo. App. 1998). Clinch also needed to prove that the
defendants’ anti-competitive behavior injured consumers or competition in the
relevant market. Brown Shoe Company v. United
States
, 370 U.S. 294, 320 (1962); Atlantic Richfield Company v. USA Petroleum
Company
, 495 U.S. 328, 344 (1990);
Zipper, 978 S.W.2d
at 418.

The defendants entered into an exclusive
arrangement with their cardiac surgeons, but this is not a per se antitrust
injury. Clinch needed to show that the defendants’ actions injured competition.
Although Clinch’s departure meant that few off-pump cardiac bypass surgeries
would be performed, Clinch himself was performing very few off-pump surgeries
before he left. His departure, therefore, did not impact significantly the
quality or quantity of services offered in the market. Additionally, Clinch
failed to establish that the defendants’ actions increased the prices in the
market to an anticompetitive level. Summary judgment, therefore, was proper on
Clinch’s antitrust claims.




Citation:




Opinion Author:
Paul M. Spinden, Judge




Opinion
Vote:
AFFIRMED IN PART AND REVERSED IN PART. REMANDED. White
Hardwick, P.J., and Breckenridge, J., concur.




Opinion:



Steven L. Clinch has sued a
fellow surgeon for tortious interference with his business relationship after
losing his position as a medical director at a St. Joseph hospital, allegedly
because the other surgeon complained to hospital administrators about Clinch’s
proficiency. Clinch also sued his former employer, Midwestern Health Management,
Inc., and Heartland Regional Medical Center, where he was on staff, and
Heartland Regional’s chief executive officer, Lowell C. Kruse, for conspiring to
restrain his trade as a surgeon by keeping him from practicing on the hospital
staff. Midwestern Health Management contracted with Heartland Regional to
provide Clinch’s services to the hospital.

The circuit court granted summary
judgment for the defendants on both causes of action. We affirm summary judgment
of Clinch’s antitrust claims but reverse summary judgment of his tortious
interference claim and remand for further proceedings.

The basis for this
dispute apparently began fomenting during 1999 when the director of vascular
surgery at Heartland Regional, Michael Nellestein, expressed concern that the
hospital’s heart program was not “moving forward effectively.” Clinch was
medical director of cardiac surgery at the hospital. Nellestein mentioned some
of his concerns to Curtis Kretzinger, the hospital’s chief operating officer,
and to Steven McCamy, who oversaw the hospital’s physicians. When Nellestein
met with Kruse during Spring 1999 to discuss his pay, he presented data comparing
his and Clinch’s productivity. He met with Kruse again–sometime during late
1999 or early 2000–to discuss extension of his contract and removal of Scott
Koellicker, the administrator who oversaw cardiac surgery at the hospital, from
his chain of command.

During June 2000, while Nellestein was on leave from
his duties, Clinch performed 17 surgeries. When Nellestein returned to his
duties, someone told him that complications had beset Clinch’s surgeries.
Nellestein reviewed Clinch’s surgeries, but he did not try to determine the
complications’ causes. At some point, apparently after November 2000, Nellestein
recorded that Clinch’s surgeries had a “35% major complication rate.”

Charles Mullican, the hospital’s chief medical officer, became aware of
complications with Clinch’s surgeries. Nellestein acknowledged that he may have
told Mullican of the complications, but he did not give Mullican a written
analysis or complain about Clinch’s performance.

Sometime during July or
August 2000, Nellestein told Kretzinger during a hallway conversation that he
was unhappy at Heartland Regional and was considering leaving the hospital’s
staff. Surprised, Kretzinger later summoned Nellestein to his office where Nellestein
expressed concerns that the hospital’s heart program was “not moving
forward effectively.” Nellestein noted problems with infection rates, referrals,
volume, and results. He expressed specific concerns about Clinch’s performance,
which Kretzinger characterized as “vague” and as part of Nellestein’s general
critique of the heart program.

Kretzinger told Heartland Health’s Clinical
Business Strategy Group that Nellestein had threatened to leave and that he was
discussing a list of issues with Nellestein. Asked whether or not Nellestein
had conditioned his staying at Heartland Regional on Clinch’s removal, Nellestein
responded, “Absolutely not.”

During August and September 2000, Kretzinger
initiated a review of Heartland Regional’s cardiac program. He ordered Cindy
McCoy, a former infectious disease nurse manager at the hospital, to prepare
a report of Clinch’s infection rates. McCoy testified that Kretzinger told her
that “Heartland wanted to terminate the contract of Dr. Steven Clinch and use
his high infection rates as a reason,” but Kretzinger denied telling her this.
From his review, Kretzinger found no problems with Nellestein’s or Clinch’s morbidity,
mortality, or infection rates.

On August 9, 2000, Kruse,
Kretzinger, and Nellestein met for dinner. Kruse and Kretzinger offered Clinch’s
position as medical director of cardiac surgery to Nellestein, and Nellestein
accepted. They discussed Clinch’s future with the hospital, but whether or not
Kruse and Kretzinger decided to remove staff privileges from Clinch entirely at
that meeting is disputed.

Nellestein signed a new contract with Heartland
Regional on October 4, 2000. The contract’s terms made Nellestein medical
director of cardiac surgery. Hospital administrators terminated Clinch’s
contract the next day. McCamy later told Clinch that his contract had been
terminated “without cause.” Although Heartland Regional administrators expressed
willingness for Clinch to continue his staff membership and clinical privileges,
Midwestern Health Management refused to release Clinch from a covenant not to
compete. On October 6, Heartland Regional contracted with another cardiac surgeon,
Jane Schwabe, and hospital administrators removed Koelliker from the heart program
chain of command, as Nellestein had requested.

During Spring
2001, Heartland Regional’s administrators realized that, because Clinch’s
privileges extended beyond expiration of his covenant not to compete, he would
be eligible to return to Heartland Regional as a staff surgeon at the end of the
year. Administrators asked an attorney to develop an exclusive contract
arrangement for cardiac surgery at Heartland Regional that would prevent Clinch
from returning to Heartland Regional after his non-compete covenant expired.


During July 2001, Clinch notified Heartland Regional that he intended to
return to an independent practice at Heartland Regional after his non-compete
covenant expired. Mullican informed him that the hospital’s board was
considering an exclusive arrangement with its current cardiac surgeons. In
September, the board decided temporarily to exclude non-employed physicians from
providing cardiovascular services at the hospital, and the board made the
exclusion permanent during March 2002. This exclusion prohibited Clinch from
performing services at the hospital.

Clinch sued the defendants for various
antitrust violations and several common law claims, including a claim for
tortious interference against Nellestein. The circuit court granted defendants’
motion for summary judgment on all counts, and Clinch appeals. Clinch did not
appeal the circuit court’s order granting summary judgment on his claims for
promissory estoppel, fraudulent misrepresentation, and negligent
misrepresentation.

Our review of the circuit court’s summary judgment is
essentially de novo . ITT Commercial Finance Corporation v. Mid-
America Marine Supply Corporation
, 854 S.W.2d 371, 376 (Mo. banc 1993). To
enter summary judgment, the circuit court had to determine that the parties were
not disputing any issue of material fact and that the party seeking summary
judgment was entitled to judgment as a matter of law. Rule 74.04(c)(6);
ITT , 854 S.W.2d at 377. “The key to summary judgment is the undisputed
right to judgment as a matter of law; not simply the absence of a fact question.” ITT, 854 S.W.2d at 380.

[A] “defending party” may
establish a right to judgment by showing (1) facts that negate any one of the
claimant’s elements facts, (2) that the non-movant, after an adequate period
of discovery, has not been able to produce, and will not be able to produce,
evidence sufficient to allow the trier of fact to find the existence of any one
of the claimant’s elements, or (3) that there is no genuine dispute as to the
existence of each of the facts necessary to support the movant’s properly-pleaded
affirmative defense.

Id. at 381 (emphasis omitted).
We must “sustain the trial court’s award of summary judgment if the judgment can
be sustained under any theory” supported by the summary judgment record. Rodgers v. Czamanske, 862 S.W.2d 453, 458 (Mo. App. 1993) (citing
Zafft v. Eli Lilly and Company , 676 S.W.2d 241, 243 (Mo. banc 1984)).
Because summary judgment is “an extreme and drastic remedy” that cuts off the
opposing party’s day in court, we are cautious in affirming it. ITT, 854
S.W.2d at 377.

In considering Clinch’s assertion that the circuit court erred
in granting summary judgment for Nellestein on Clinch’s claim for tortious
interference, we first address Nellestein’s argument that Clinch is raising a
new issue on appeal. Nellestein asserts that Clinch averred to the circuit court
that Nellestein interfered with his contract , but now, on appeal, he
asserts that Nellestein interfered with his business relationship .
Clinch labeled his cause of action against Nellestein as “tortious interference
with contract” in both his petition and responses to defendants’ motion for
summary judgment. The circuit court also labeled Clinch’s cause of action as
“tortious interference with contract.” Clinch’s suggestions in opposition to
defendants’ motion for summary judgment mentioned interference with Clinch’s
employment relationship. On appeal, Clinch argues that Nellestein tortiously
interfered with his business relationship with Midwestern Health Management.

An appellant cannot raise an issue for the first time on appeal, but Clinch
is not raising a new issue. The cause of action that Clinch asserts is tortious
interference with a business relationship. The protected relationship can occur
in several forms. As the Supreme Court has noted, the protected relationship
can be a “contract or a valid business relationship or expectancy.” Fischer,
Spuhl, Herzwurm and Associates, Inc. v. Forrest T. Jones and Company
, 586
S.W.2d 310, 315 (Mo. banc 1979) (emphasis omitted). In a case relied on by
Nellestein– Rice v. Hodapp , 919 S.W.2d 240, 245 (Mo. banc 1996)–the
Supreme Court referred to the cause of action as “[t]ortious interference with
contract or business expectancy.” Indeed, virtually all contracts are business
relationships. When Clinch referred on appeal to his business relationship with
Midwestern Health Management, he obviously was referring to the same relationship
that he described during circuit court proceedings as a contractual relationship.

We conclude that the circuit court erred in granting summary
judgment for Nellestein. Although the facts concerning Nellestein’s conduct are
not in significant dispute, his motives for his actions are.

The elements of
tortious interference with a business relationship are: (1) The plaintiff was
involved in a valid business relationship; (2) the defendant was aware of the
relationship; (3) the defendant intentionally interfered with the
relationship, inducing its termination; (4) defendant acted without
justification; and (5) plaintiff suffered damages as a direct result of
defendant’s conduct. Nazeri v. Missouri Valley College , 860 S.W.2d 303,
316 (Mo. banc 1993). We find no genuine dispute in the record concerning the
first two elements: that Clinch had a valid, ongoing business relationship with
Midwestern Health Management and with Heartland Regional and that Nellestein was
aware of that relationship. This business relationship ended after Nellestein
raised concerns about Regional Heartland’s cardiac surgery record–concerns
about morbidity, infection, and complication rates and the program’s overall
efficiency.

In establishing the third element, Clinch’s burden is not to
show that Nellestein acted with actual malice–that is, with spite or ill
will–but with the intention of “doing . . . a harmful act without justification
or excuse[.]” Downey v. United Weatherproofing, Inc., 253 S.W.2d
976, 980 (Mo. 1953). In other words, to establish that a defendant engaged in
actionable interference, a plaintiff need show only that the defendant knew of,
and interfered intentionally with, the plaintiff’s interests. Mere intermeddling
for no other reason than a desire to interfere is actionable.

As for the
fourth element–whether or not Nellestein acted without justification–the
fact-finder must consider Nellestein’s motive. As the Supreme Court has
instructed:

It is not justification to knowingly procure the breach of a
contract where the defendant acts with an improper purpose and seeks not only to
further his own interests, but in doing so employs improper means. But there is
no impropriety of self-interested interference when a defendant has a legitimate
economic interest in the contract or expectancy. One who has a present existing
economic interest, such as a prior contract of his own or a financial interest
in the affairs of the person persuaded not to enter into a contract, is
privileged to interfere with another’s business expectancy to protect one’s own
economic interest. No liability arises for interfering with a contract or
business expectancy if the action complained of was an act which the defendant
had a definite legal right to do without any qualification.

Community
Title Company v. Roosevelt Savings and Loan Association
, 796 S.W.2d 369,
372 (Mo. banc 1990) (citations omitted). If, for example, the fact-finder
concludes that Nellestein was seeking to protect the health of Heartland
Regional’s heart patients, Nellestein should prevail because his conduct was
justified.

The record supports either of contradictory conclusions: either
that Nellestein acted intentionally to interfere with Clinch’s business
relationship without justification or that Nellestein either acted
unintentionally or with justification. Hence, a genuine issue of material fact
exists, and the circuit court erred in granting summary judgment. It should have
denied the motion and proceeded with the case so that a jury could resolve the
issue. We, therefore, reverse its summary judgment for Nellestein on Clinch’s
claim of tortious interference with a business relationship.

In defending
the circuit court’s summary judgment for Nellestein, Nellestein argues that, as
a matter of law he could not be deemed to have intentionally induced or caused
Midwestern Health Management to breach its contract with Clinch. Nellestein
argues that Midwestern Health Management could not be deemed to have breached
the contract because it had a right to terminate the contract at will for any
reason.

Nellestein’s argument is wrong. A third party’s interference with
contracts terminable at will is actionable. Hensen v. Truman Medical Center,
Inc.
, 62 S.W.3d 549, 553 (Mo. App. 2001). This is because, until one of the
parties terminates the contract, it is a subsisting relation that presumably
will continue and is of value to the plaintiff. That Midwestern Health
Management did not breach its contract with Clinch in the technical sense is of
no consequence. The issue is whether or not Midwestern Health Management would
have persisted in the contractual relationship with Clinch but for Nellestein’s
conduct. We conclude that Clinch presented evidence from which a reasonable
juror could conclude that Midwestern Health Management would not have terminated
its contract with Clinch but for Nellestein’s intentional conduct.


Nellestein further asserts that summary judgment was proper because the
circuit court correctly adjudged, as a matter of law, that his conduct did not
cause Midwestern Health Management and Heartland Regional to terminate its
relation with Clinch. In reviewing the circuit court’s judgment, we view the
record in a light most favorable to Clinch, the nonmoving party. Lough v.
Rolla Women’s Clinic, Inc.
, 866 S.W.2d 851, 852 (Mo. banc
1993).

Cast in this light, we conclude that a fact-finder could conclude
reasonably that Nellestein sought to interfere intentionally with Clinch’s
employment by presenting productivity statistics to Kruse, by telling Heartland
Regional administrators that Clinch’s August 2000 surgeries had a 35 percent
complication rate, and by telling Heartland Regional administrators that Clinch
had high infection rates and poor clinical outcomes. Although Nellestein argues
that he presented statistics to Kruse simply to support his request for a
contract extension and not to influence Kruse to terminate Clinch, a fact-finder
reasonably could conclude otherwise, especially in light of Kretzinger’s
independent investigation into Clinch’s performance. Instigated by Nellestein’s
comments, the investigation revealed no problems with Clinch’s surgeries. Yet,
the hospital terminated its relation with him.

As to Clinch’s anti-trust
claims against Heartland Health, Heartland Regional, Midwestern Health
Management, and Kruse, we affirm the circuit court’s granting summary judgment
for the defendants. The circuit court found that Clinch lacked standing as an
antitrust plaintiff. We agree.

Clinch first argues that the defendants’
answer did not allege substantive facts to support their affirmative defense
that he lacked standing. Clinch did not raise this argument before the circuit
court, so we do not address the issue except to point out that defendants raised
the affirmative defense in their answer, putting Clinch on notice of their claim
and thoroughly argued the issue in their motions to dismiss and for summary
judgment.

As an antitrust plaintiff, Clinch’s obligation was to show that he
was a competitor or consumer who suffered a direct antitrust injury. Hamilton
v. Spencer
, 929 S.W.2d 762, 767 (Mo. App. 1996); Duvall v.
Silvers, Asher, Sher and McLaren, M.D.’s
, 998 S.W.2d 821, 825-27 (Mo. App.
1999); Zipper v. Health Midwest , 978 S.W.2d 398, 417-18 (Mo. App. 1998).
Because the purpose of antitrust laws is to protect competition and not
individual competitors, an antitrust plaintiff must prove that a defendant’s
anti-competitive behavior injured consumers or competition in the relevant
market. Brown Shoe Company v. United States, 370 U.S. 294, 320 (1962);
Atlantic Richfield Company v. USA Petroleum Company , 495 U.S. 328, 344
(1990); Zipper , 978 S.W.2d at 418. An antitrust plaintiff must point to
some impact a defendant’s decision had on price, quality, or quantity of service
in the relevant geographic market. Robles v. Humana Hospital Cartersville
, 785 F. Supp. 989, 998 n.7 (N.D. Ga. 1992) (cited with approval in Zipper
, 978 S.W.2d at 417-18) (citing several cases indicating that impact on
pricing or quality of service is strong indicator that anti-competitive actions
have affected the market).

Clinch argues that he had standing because the
defendants excluded him as a competitor from the marketplace. Even assuming
arguendo that the defendants excluded Clinch from the market and that
competitors can be proper plaintiffs, Clinch must demonstrate that the
defendants injured competition by revoking his privileges.

Clinch argues
that the defendants injured competition by entering into an exclusive
contractual arrangement with its cardiac surgeons, thereby preventing him and
those doctors without contracts with Heartland Regional from practicing at
Heartland Regional. Loss of employment is not an antitrust injury, and entering
into an exclusive contractual arrangement is not an antitrust violation per
se
. See Jefferson Parish Hospital District Number 2 v. Hyde , 466
U.S. 2 (1984).

Clinch also argues that Heartland Regional’s excluding him
injured competition because it virtually eliminated the availability of off-pump
bypass surgery, which Nellestein and Schwabe rarely performed. Clinch contends
that a “precipitous decline in the quantity of off-pump bypasses” occurred after
he left Heartland Regional. Indeed, the number of off-pump bypasses dropped from
82 during his tenure to less than five in the four to five years after he
departed; however, the number of off-pump bypasses that Clinch performed dropped
considerably between August 1997 and August 2000. Clinch performed 43 off-pump
surgeries from August 1997 to July 1998, but he performed only three off-pump
surgeries during the 14 months before his termination in 2000. Thus, Clinch had
himself “virtually eliminated” off-pump surgery before the defendants revoked
his hospital privileges. Even assuming arguendo that Clinch’s relevant
geographic market is correct, defendants’ actions had little impact on the
quantity of off-pump surgeries performed at Heartland Regional. In addition, we
note that the overall number of surgeries did not decline after Clinch left.


Moreover, consumers still had the option of obtaining off-pump bypass
surgery at Heartland Regional after Clinch’s removal from the staff. Nellestein
performed several off-pump surgeries before and after Clinch departed.
Nellestein performed off-pump surgery when on-pump surgery was not viable.


Clinch also cannot establish that the defendants’ decision harmed pricing in
an anti-competitive way. Even assuming that off-pump surgery costs less than
on-pump surgery, the defendants’ decision to revoke Clinch’s hospital privileges
had little impact on cost. By the end of Clinch’s tenure, few off-pump surgeries
were being performed. Thus, terminating the privileges of the surgeon who
preferred off-pump surgery impacted the price of bypass surgery in the market
only minimally. But, even assuming arguendo that the cost of bypass
surgery rose at Heartland Regional, Clinch has not demonstrated that it rose to
an anti-competitive level, which is required to establish that defendants’
actions had an anticompetitive impact. Zipper, 978 S.W.2d at
418.

Hence, Clinch cannot establish that he suffered an “injury of the type
the antitrust laws were intended to prevent.” Brunswick Corporation v. Pueblo
Bowl-O- Mat, Inc.
, 429 U.S. 477, 489 (1977). Because Clinch did not satisfy
the test for antitrust standing, the circuit court did not err in granting
summary judgment on Clinch’s antitrust claims.

We, therefore, affirm the
circuit court’s summary judgment for the defendants on Clinch’s antitrust
claims. We reverse and remand the circuit court’s summary judgment for
Nellestein on Clinch’s claim for tortious interference with business
relationships.

Separate
Opinion:


None





This slip
opinion is subject to revision and may not reflect the final opinion adopted by
the Court.




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