Hosseinipour v. Ky. River Dist. Health Dep’t.
RENDERED:
OCTOBER 15, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000544-MR
MAHMOOD HOSSEINIPOUR, M.D.
AND
MAHMOOD HOSSEINIPOUR, M.D., P.S.C.
APPELLANTS
v.
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE LAURANCE B. VANMETER, JUDGE
ACTION NO. 97-CI-00091
APPALACHIAN REGIONAL HEALTH
CARE, INC., D/B/A
ARH REGIONAL MEDICAL CENTER,
THE PRENATAL CENTER,
AND
KENTUCKY RIVER DISTRICT HEALTH
DEPARTMENT
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: BUCKINGHAM AND DYCHE, JUDGES; AND MILLER, SENIOR JUDGE.1
BUCKINGHAM, JUDGE: The appellants (hereinafter referred to as
1 Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
Dr. Hosseinipour) appeal from separate summary judgments of the
Fayette Circuit Court in favor of Appalachian Regional Health
Care, Inc. (“ARH”), d/b/a ARH Regional Medical Center (the
hospital”); the Prenatal Center; and Kentucky River District
Health Department (“Health Department”).
We affirm.
In 1985, there was a shortage of OB/GYN physicians in
Perry County, Kentucky. Only two physicians were delivering
babies at the hospital; one was an OB/GYN who was about to
retire, and the other was a family practitioner who could not
perform cesarean sections or gynecological surgery.
At that
time Dr. Hosseinipour was practicing as an OB/GYN physician in
South Williamson, Kentucky.
ARH is a nonprofit charitable organization operating
hospitals in eastern Kentucky, including the ARH Regional
Medical Center in Hazard. ARH also operates an obstetrics and
gynecology clinic in Hazard known as Family Health Services
(“FHS”). FHS has full-time physician employees who are on the
medical staff at the hospital.
Due to the shortage of OB/GYNs in Perry County in
1985, ARH was actively recruiting OB/GYNs to work full-time at
the FHS.
In connection with this recruitment effort, ARH met
with Dr. Hosseinipour on December 11, 1985.
It sent him a
letter on December 16, 1985, formally inviting him to accept
employment with FHS. The letter also stated that Dr.
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Hosseinipour would be welcomed by ARH in the local medical
community even if he decided to relocate to Perry County in a
private practice setting rather than accepting employment with
FHS.
The letter further indicated that should Dr.
Hosseinipour decline the offer of employment with FHS but
nonetheless relocate his practice in a private practice setting
in Perry County, then ARH “will work with you in every possible
way to assist you in developing your private practice.”
Dr.
Hosseinipour turned down the job offer, but he did move his
practice to Hazard in early 1986.
At that time he was granted
medical staff privileges at the hospital in obstetrics and
gynecology.
ARH also indicated in its December 16, 1985, letter to
Dr. Hosseinipour that it intended to recruit another OB/GYN
physician to work with him should he accept the employment
offer. In fact, ARH recruited another OB/GYN physician shortly
after Dr. Hosseinipour declined employment with FHS.
Dr.
Elizabeth Shelly was successfully recruited, and she arrived in
Hazard to begin her practice in the summer of 1986.
Dr. Hosseinipour practiced in Hazard from the spring
of 1986 until his retirement in February 2001.
He claims to
have had a successful practice with increasing revenues from the
time he started his practice in Hazard until 1993.
He stated
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that his practice was primarily in the area of prenatal care and
delivery services for pregnant women, with the remainder of his
practice based in gynecology.
Various events occurred in the early to mid-1990s that
have significance to this litigation.
The series of events
begins with Dr. Hosseinipour being elected as chief of the
OB/GYN service at the hospital in 1989.
This position is one of
several administrative positions within the medical staff
created in the medical staff bylaws to further the goal of
quality patient care within a particular service.
A service
chief is elected by fellow service members for a two-year term.
The physician who is elected serves without financial
compensation. Further, whether a physician holds or does not
hold the chief position does not affect his or her medical staff
privileges.
Dr. Hosseinipour was re-elected in 1991 as chief of
the OB/GYN service. However, at the request of the Medical
Staff Executive Committee, a special meeting of the service was
called on January 9, 1992, at which time Dr. Hosseinipour was
removed as chief of the OB/GYN service.
By the summer of 1993,
Dr. Hosseinipour was once again chief of the OB/GYN service.
However, he was again removed from that position at a meeting of
the service held on November 5, 1993.
As with his removal from
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the position in 1992, Dr. Hosseinipour’s hospital privileges
were not affected.
Another significant event occurring in 1993 was the
formation of the Prenatal Center.
Prior to that time, prenatal
services for eligible pregnant women in the Kentucky River Area
Development District were provided by the Health Department.
The formation of the Prenatal Center was a joint project of the
Health Department and ARH, for the purpose of providing a
separate prenatal care facility.
While the center did not
provide any new or additional services from those previously
offered at the Health Department, it did provide a more
accessible and centralized location focusing solely on prenatal
care and services.
Between 1993 and 1995, the gross receipts from Dr.
Hosseinipour’s practice declined significantly.
In addition to
the aforementioned events, successive OB/GYN physicians were
added to FHS in addition to Dr. Shelly.
Furthermore, Dr.
Hosseinipour was seriously injured in an automobile accident in
1995 and was unable to see patients for some time thereafter.
He eventually retired from his practice in 2001.
In January 1997, Dr. Hosseinipour filed a civil
complaint in the Fayette Circuit Court against ARH.
His
complaint included claims for breach of contract, denial of due
process, and tortious interference with a contract/prospective
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contract.
In an order entered on April 19, 1999, the circuit
court granted ARH summary judgment as to the first two claims.
Thereafter, Dr. Hosseinipour was permitted to file an amended
complaint alleging tortious interference with a
contract/prospective contract against the Prenatal Center and
the Health Department. In an order entered on February 26,
2003, the circuit court awarded summary judgment in favor of
ARH, the Prenatal Center, and the Health Department, effectively
dismissing the remaining claims.
This appeal by Dr.
Hosseinipour followed.
Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, stipulations, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
CR2 56.03. The standard of review on appeal when a trial court
grants a motion for summary judgment is “whether the trial court
correctly found there were no genuine issues as to any material
fact and that the moving party was entitled to judgment as a
matter of law.” Stewart v. University of Louisville , Ky. App.,
65 S.W.3d 536, 540 (2001), quoting Scifres v. Kraft, Ky. App.,
916 S.W.2d 779, 781 (1996).
The movant bears the initial burden
of convincing the court by evidence of record that no genuine
2 Kentucky Rules of Civil Procedure.
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issue of fact is in dispute, and the burden then shifts to the
party opposing summary judgment to present “at least some
affirmative evidence showing the existence of a genuine issue of
material fact for trial.” See
City of Florence, Ky. v. Chipman,
Ky., 38 S.W.3d 387, 390 (2001).
“The party opposing summary
judgment cannot rely on their own claims or arguments without
significant evidence in order to prevent a summary judgment. ”
Wymer v. J.H. Properties, Inc., Ky., 50 S.W.3d 195, 199 (2001),
citing Harker v. Federal Land Bank of Louisville, Ky., 679
S.W.2d 226 (1984). Finally, “[t]he record must be viewed in a
light most favorable to the party opposing the motion for
summary judgment and all doubts are to be resolved in his
favor.” Steelvest, Inc. v. Scansteel Serv. Ctr., Inc. , Ky., 807
S.W.2d 476, 480 (1991).
We will first address the claims Dr. Hosseinipour made
against ARH that were dismissed by the circuit court in its
first summary judgment. The first claim dismissed was Dr.
Hosseinipour’s claim against ARH for breach of contract.
In
support of this claim, Dr. Hosseinipour asserts that the
December 16, 1985, letter from ARH to him constituted a valid
and binding contract that ARH breached.
In further support of
this claim, Dr. Hosseinipour contends that the medical staff
bylaws likewise constituted a valid and binding contract between
ARH and him and that ARH likewise breached this contract.
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Concerning the December 16, 1985, letter, Dr.
Hosseinipour, points to the portion of the letter where ARH
stated that it would “work with you in every possible way to
assist you in developing your private practice” even if he
declined the employment offer and relocated in a private
practice setting in Hazard.
Dr. Hosseinipour contends that ARH
was bound to a contractual obligation with him once he decided
to move his practice to Hazard. We conclude that the letter
does not constitute an enforceable, valid, and binding contract
for several reasons.
In order to create an enforceable contract, there must
be a mutuality of obligations.
See Kovacs v. Freeman, Ky., 957
S.W.2d 251, 254 (1997). While Dr. Hosseinipour argues that his
obligation was to move his practice to Hazard, he does not
attempt to define when such a move was to occur or how long he
would be obligated to continue to practice in the area.
In
return, he asserts that ARH had the obligation to work with him
in every possible way to develop his private practice.
We
conclude the letter is unenforceable as a contract due to lack
of mutuality of obligations.
Further, in order for a contract to exist, there must
be legal consideration that requires a benefit conferred upon
the promissor and/or imposes a detriment on the promisee.
See
Moore v. Kuster, 238 Ky. 292, 37 S.W.2d 863, 865 (1931).
There
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is nothing in the letter that demonstrates a benefit conferred
upon ARH or a detriment to Dr. Hosseinipour.
The letter also fails as an enforceable contract
because it is not sufficiently definite and certain.
Specificity in the promises and performances to be rendered by
each party must be reasonably certain.
See Fisher v. Long, 294
Ky. 751, 172 S.W.2d 545, 547 (1943).
The letter clearly lacked
in this regard.
Dr. Hosseinipour next argues that the circuit court
erred in granting ARH summary judgment on his claim for breach
of contract based on the medical staff bylaws.
His arguments in
this regard relate to his removal as chief of the OB/GYN service
in 1992 and again in 1993. While Dr. Hosseinipour contends that
the bylaws constituted a contract between ARH and him, ARH
disagrees.
Dr. Hosseinipour argues that the majority rule is that
medical staff bylaws are a contract between a hospital and the
members of the medical staff.
He cites numerous cases in his
brief to support this position.
On the other hand, ARH argues
that many jurisdictions have held that medical staff bylaws do
not constitute a contract between the hospital and the members
of the medical staff. It has also cited cases from other
jurisdictions to support its position.
Case law in Kentucky has
not addressed this issue.
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Assuming for the sake of argument that the medical
staff bylaws constituted a contract between the hospital and Dr.
Hosseinipour, we nevertheless conclude that there was no fact
issue concerning any breach by ARH. Concerning his removal as
chief of the OB/GYN service in 1992, Dr. Hosseinipour alleges
several breaches of the bylaws. These include Dr. Spencer’s
right to vote within the service, Dr. Wicker ’s role in presiding
over the meeting, lack of notice of the meeting, and Dr.
Wicker’s election as the new chief of service. We have examined
each of the alleged breaches and determine that Dr.
Hosseinipour’s arguments are without merit.
Concerning his removal as chief of the service in
1993, Dr. Hosseinipour has not cited a specific violation of the
bylaws. Rather, he has questioned the reasons for his removal.
He claims that the action taken against him was arbitrary and
unreasonable. Having considered his arguments, we are not
persuaded that the bylaws, even if they constituted a contract,
were breached.
Dr. Hosseinipour’s next argument is that the circuit
court erred in granting summary judgment in favor of ARH on his
due process claim. He claims in this regard that ARH violated
his due process rights when it removed him from the position as
chief of the OB/GYN service in 1992 and again in 1993.
We have
previously concluded that there was no breach of the process due
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under the bylaws in connection with Dr. Hosseinipour’s removal
from the chief position in 1992 and 1993.
In short, there were
no fact issues in this regard, and ARH was entitled to summary
judgment on the claim.
Dr. Hosseinipour next argues that the circuit court
erred in granting summary judgment on his claim of tortious
interference with a contract/prospective contract.
He argues
that the appellees interfered with his ability to develop his
practice to the fullest extent. He asserts that there were two
phases of this tortious interference.
In Cullen v. South East Coal Co., Ky. App., 685 S.W.2d
187, 189 (1983), this court recognized the validity of claims
for the intentional and improper interference with prospective
contractual relations of another.
A claim of this nature is set
forth in Restatement (Second) of Torts § 766B, Intentional
Interference With Prospective Contractual Relation (1979).
In
order to overcome a summary judgment motion and have such a
claim submitted to a jury, there must be “evidence of improper
interference, after due consideration of the factors provided
for determining such.” National Collegiate Athletic Ass ’n v.
Hornung, Ky., 754 S.W.2d 855, 858 (1988). Likewise, the Cullen
case recognized that the key to a claim for tortious
interference with prospective contractual relation is the phrase
“and improperly interferes.”
685 S.W.2d at 190.
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Under phase one of his theory, Dr. Hosseinipour claims
that ARH harassed and embarrassed him, thereby precluding him
from fully developing the potential of his practice.
Specifically, he points to the fact that Dr. Shelly was allowed
to have locum tenens physicians3 cover her patients when he was
on staff, that a review of all his cesarean section procedures
was conducted, that his equipment requests were singled out and
denied while others were granted, that he was singled out for
the assignment of inexperienced personnel, and that he was twice
removed as chief of service.
We have reviewed each of the
issues raised by Dr. Hosseinipour and conclude that the proof
that the actions were improper on the part of ARH was
insufficient to raise a genuine issue of material fact to
overcome ARH’s summary judgment motion.
Under phase two of Dr. Hosseinipour ’s tortious
interference argument, he asserts that ARH improperly interfered
with his practice by participating in the development and
operation of the Prenatal Center.
Specifically, he argues that
all appellees, including ARH, utilized the Prenatal Center to
mislead patients as to his availability, to discourage patients
from choosing him by making false statements as to his medical
skills and competency, and by diverting patients to other
3 A local tenens physician is a physician granted privileges to attend to
patients in the hospital for a period not to exceed 30 days. Such a
physician need not obtain membership on the active medical staff.
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medical providers. Having considered the facts surrounding this
argument, we conclude that the circuit court properly awarded
summary judgment in favor of ARH.
Its staff had no ability to
influence, much less mislead, a patient as to her choice of a
delivering physician.
Dr. Hosseinipour also alleges that the circuit court
erred in granting summary judgment in favor of the Prenatal
Center and the Health Department on his claim of tortious
interference with a contract/prospective contract.
As we have
noted, the Health Department created the Prenatal Center in
coordination with ARH. The Prenatal Center was staffed and
operated by the Health Department, and it provided a centralized
location for prenatal and newborn services to residents in the
seven-county area.
Dr. Hosseinipour claims that the Health Department and
the Prenatal Center committed tortious interference with
prospective contracts by misleading patients as to his
availability, by discouraging patients from choosing him, by
making false statements as to his medical skills and competency,
and by diverting patients to other medical providers.
He does
concede that the purpose of the Prenatal Center and the services
offered there were not improper.
There was no specific duty on the part of either the
Health Department or the Prenatal Center to provide Dr.
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Hosseinipour’s name or the name of any other provider to a
prospective mother. Thus, the issue is whether these parties
misled prospective mothers as to Dr. Hosseinipour’s availability
or discouraged them from using him as a physician by making
false statements about his skills. There was no evidence to
suggest that the Health Department or the Prenatal Center
personnel ever told anyone that Dr. Hosseinipour did not provide
delivery services.
Dr. Hosseinipour argues that statements made by
persons at the Prenatal Center were defamatory in nature and
thus improper.
While he notes that he did not make a claim for
defamation, he asserts that such tortious conduct would provide
a basis for finding improper interference under a tortious
interference claim. The trial court concluded that the
statements were not defamatory.
To support his argument, Dr. Hosseinipour presented
evidence from two witnesses, Ms. Haddix and Ms. Campbell.
Ms.
Haddix testified that she was told by a nurse practitioner at
the Prenatal Center that Dr. Hosseinipour had made mistakes,
that he would not be the best choice, and that the Prenatal
Center had had problems with him.
Ms. Campbell testified that
the nurse practitioner told her that Dr. Hosseinipour was not a
good doctor and that he had made several mistakes.
Other
witnesses testified that staff at the Health Department and at
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the Prenatal Center had suggested other physicians, but none of
these comments appeared to directly address Dr. Hosseinipour ’s
skills as a physician.
Dr. Hosseinipour’s own testimony indicates he had made
errors in procedures performed at the hospital.
These included
leaving a surgical sponge in a patient, having a tubal ligation
fail, and being unable to resolve the source of a patient’s
bleeding.
He also acknowledged having been sued twice for
malpractice in Hazard. As for his interaction with hospital
staff, Dr. Hosseinipour acknowledged a suspension of his
privileges for incomplete records, a matter he subsequently
corrected. Dr. Hosseinipour also provided testimony concerning
a letter of reprimand he had received for allegedly abandoning a
patient after having directed the emergency room personnel to
admit the patient.
In light of Dr. Hosseinipour ’s own testimony, we
conclude that the statements concerning his having made mistakes
or that the staff had problems with him were not false and
defamatory. Whether the nurse practitioner felt Dr.
Hosseinipour was a good physician or was a patient ’s best choice
amounted only to personal opinion. Opinion cannot serve as a
basis for defamation. See Yancey v. Hamilton, Ky., 786 S.W.2d
854, 857-58 (1989). Therefore, the circuit court did not err in
granting summary judgment on these claims.
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The judgments of the Fayette Circuit Court are
affirmed.4
ALL CONCUR.
BRIEF FOR APPELLANT:
Jennifer F. Zeigler
Lexington, Kentucky
BRIEF FOR APPELLEE,
APPALACHIAN REGIONAL
HEALTHCARE, INC.:
Sarah Charles Wright
Lexington, Kentucky
BRIEF FOR APPELLEES, KENTUCKY
RIVER DISTRICT HEALTH
DEPARTMENT AND THE PRENATAL
CENTER:
David C. Trimble
Lexington, Kentucky
4 Dr. Hosseinipour also addressed arguments concerning causation and
prospective patients as an identifiable group. These issues are now moot.
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