Lo v. Provena Covenant Medical Center
NO. 4-03-0175
IN THEAPPELLATE
COURT
OF ILLINOIS
FOURTH
DISTRICT
ADOLF
LO, M.D.,
Plaintiff-Appellee,
v.
PROVENA
COVENANT
Corporation,
MEDICAL
CEI_TzR, a
Defendant-Appellant.
ORDER
from
Appeal
Circuit
of
Court
ChampaignCounty
02L275
No.
Honorable
Michael
Judge
Q. Jones,
Presiding.
Plaintiff,
Adolf
Lo,
is a physician
and a member
of the
medical
staff
of defendant,
Provena
Covenant
Medical
Center,
a
licensed
hospital.
Defendant
summarily
suspended
plaintiff’s
clinical
privilege
to perform
open-heart
surgery,
allegedly
because
an independent
peer
review
had identified
problems
in his
open-heart
surgeries
and he had expressed
an intention
to perform
more
such
surgeries
without
the precautionary
measure
on which
defendant
had insisted:
direct
supervision
by another
cardiac
surgeon.
Plaintiff
sued
defendant
for breach
of contract,
and
the trial
court
entered
an order
temporarily
restraining
defen-
dant
from
suspending
any of plaintiff’s
clinical
privileges.
Defendant
appeals
on three
grounds:
p
(1) defendant’s
decision
to summarily
suspend
plaintiff’s
clinical
privilege
violated
no bylaw
and,
therefore,
the trial
court
lacked
author-
ity to review
the decision;
(2) under
federal
and state
law and
defendant’s
bylaws,
defendant
had ultimate
authority
over
its
medical
staff,
including
the authority,
on its own
initiative,
to
suspend
clinical
privileges
of a physician
who posed
an imminent
risk
of harm
to patients;
and
(3) plaintiff
failed
to establish
the requisites
for a temporary
restraining
order.
Because
the
summary
suspension
violated
no bylaw,
we reverse
the trial
court’s
judgment.
I. BACKGROUND
Defendant’s
owner,
Provena
Hospitals,
has adopted
the
“Bylaws
of Provena
Covenant
Medical
Center
Local
Governing
Board[,]
Urbana,
Illinois”
(hospital
board’s
bylaws),
which
provide
as follows:
“Section
1.1 – Authorization.
The board
of directors
of PROVENA
HOSPITALS
has
authorized
the establishment
of a Local
Governing
Board
(‘Hospital
Board’)
to have
such
authority
and responsibilities
with
respect
to the governance
of the day to day
business
and
affairs
of Provena
Covenant
Medical
Center
(‘Hospital’)
as are set forth
in these
bylaws
and as the PROVENA
HOSPITALS
Board
may from
time
to time delegate.
***
***
Section
4.1 – Deleqated
Authority.
The
Hospital
Board
has been
delegated
authority
and responsibility
by the PROVENA
HOSPITALS
Board,
for the following
functions
***:
(h) To serve as the official
governance
– 2
mechanism
of the Hospital
to its Medical
staff
and to act on recommendations
from
the
Hospital’s
Medical
Staff,
to include
but
not
limited
to *** clinical
privileges
***.
(i) To maintain
a liaison
with
the Hos-
pital’s
Medical
Staff
by including
the presi-
dent
of the Medical
Staff
as an ex-officio
director
of the Hospital
Board
in order
to
promote
favorable
working
relationships
and
exchange
information
for the improvement
of
patient
care.
Section
8.1 – Medical/Dental
Staff
Re-
sponsibilities.
The Hospital
Board
shall,
in
the exercise
of its discretion,
delegate
to
the Medical/Dental
Staff
the responsibility
for providing
appropriate
professional
care
to all patients
of the Hospital,
as well
as
the authority
to carry
out the designated
responsibilities.
The Medical/Dental
Staff
of the Hospital
shall
make
recommendations
to the Hospital
Board
concerning
all matters
set
forth
in the
Medical/Dental
Staff
bylaws
and all addi-
tional
matters
referred
to it by the Hospital
Board.
Section
8.2 – Medical/Dental
Staff
By-
– 3 –
laws.
There shall be bylaws
*** for the
Medical/Dental
Staff
setting
forth
its orga-
nization
and governance.
Proposed
bylaws
***
may be recommended
by the Medical/Dental
Staff,
which
shall
only become
effective
upon
the adoption
thereof
by the Hospital
Board.
Section
8.3 – Quality
of Care Monitor-
inq.
The Hospital
Board
shall
require
the
Medical/Dental
Staff
to implement
activities
and mechanisms
for monitoring
and evaluating
the quality
of patient
care,
for identifying
opportunities
to improve
patient
care,
and
for identifying
and resolving
problems
or
deficiencies,
and shall
regularly
report
to
the Hospital
Board
on these
matters.
Section
8.5 – Deleqated
Powers.
***
In
all applicable
matters,
this Article
is sub-
ject
to the policies
of PROVENA
HOSPITALS,
including,
but
not limited
to, ensuring
com-
pliance
with
State
of Illinois
license
re-
quirements[]
[and] Joint
Commission
on Ac-
creditation
of Health
Care
Organizations
***
. U
Pursuant
to section
8.2 of the hospital
board’s
bylaws,
the medical
staff
recommended
bylaws,
which
the hospital
board
adopted.
The medical
staff’s
bylaws
provide:
— 4
—
”lilt
is recognized
that
the medical
staff
is responsible
for the quality
of medi-
cal care
and must
accept
and discharge
this
responsibility,
subject
to the ultimate
au-
thority
of the medical
center
board
of direc-
tors
***.
***
ARTICLE
3.
PURPOSES
The purposes
of this organization
[(the
medical
staff)]
are:
3.3
to serve
as the primary
means
for ac-
countability
to the
[defendant’s]
Board
of
Directors
for the appropriateness
of the
professional
performance
*** of its members
*** and to strive
towards
the continual
im-
provement
of the quality
and efficiency
of
patient
care
delivered
in the Medical
Center
***.
3.4
to provide
a means
through
which
the
Medical
Staff
may participate
in the
policymaking
and planning
processes
of the
Medical
Center
***.
***
ARTICLE
8.
CORRECTIVE
ACTION
8.1
Procedure
8.1.1
Any person
may provide
information
to
the medical
staff
about
the conduct,
perfor-
mance,
or competence
of its members.
When-
ever
reliable
information
indicates
that
the
activity
or professional
conduct
of any mem-
ber
of the Medical
Staff
is considered
to be
lower
than
the standards
of the Medical
Staff,
detrimental
to public
safety
or dis-
ruptive
to the delivery
of quality
patient
care,
corrective
action
against
such practi-
tioner
may
be requested
by any officer
of the
Medical
Staff,
by the chair
of any clinical
department,
by the chair
of any standing
committee
of the Medical
Staff,
by the Chief
Executive
Officer,
or by the Board
of Direc-
tors.
All
requests
for corrective
action
shall
be made
to the Executive
Committee
in
writing,
and
shall
be supported
by reference
to the
specific
activities
or conduct
which
constitute
the grounds
for the request.
8.2
Summary
Suspension
8.2.1
Whenever
action
must
be taken
immedi-
ately
to prevent
imminent
danger
to an indi-
vidual,
the chair
of a department,
the Presi-
dent
of the Medical
Staff,
an officer
of the
– 6 –
Medical
Staff,
or the Chief
Executive
Officer
upon
the recommendation
of any one of those
aforementioned,
is authorized
to summarily
suspend
the Medical
Staff
membership
status
or all,
or any portion,
of the clinical
priv-
ileges
of a practitioner.
***
8.2.2
A practitioner
whose
clinical
privi-
leges
have
been
summarily
suspended
shall
be
entitled
to the procedural
rights
set forth
in Article
9 of these
Bylaws
***.”
The parties
agree
that
the above-quoted
bylaws
of the
hospital
board
and medical
staff
were
in force
when
defendant
summarily
suspended
plaintiff’s
clinical
privilege
to perform
open-heart
surgery.
Defendant
first
became
concerned
about
its
cardiovascular-surgery
program
when
reviewing
patients’
statis-
tics
from January
2000
to May 2001.
Plaintiff
was one of two
cardiovascular
surgeons
on the medical
staff.
For the
cardiovascular-surgery
program
as a whole
(that is to say,
for
the two
surgeons’
combined
efforts),
the mortality
rate
was 7%,
the
rate of return
to surgery
after
cardiovascular
surgery
was
13.1%,
and the rate
of readmission
into
the hospital
within
30
days
after
cardiovascular
surgery
was
19.3%.
The mortality
rate
of plaintiff’s
patients
was
5.3%
for 2000,
5% for 2001,
and
5%
for 2002.
By contrast,
during
the same period,
the national
rate
of mortality
for open-heart
surgery
was
3% for 2000 and
2.3%
for
2001.
_
Because
of the allegedly
high
rates
of mortality
and
complications,
defendant
contracted
with
a team of independent
consultants
to review
defendant’s
cardiovascular-surgery
program
and report
their
findings.
In its report,
the
“peer-review
team,
identified
problems
with plaintiff’s
cardiovascular
surgeries.
According
to a letter
to plaintiff
from
the chairperson
of
defendant’s
board
of directors,
“the report
raised
grave
concerns
about
quality,
far more
concerns
than
any of us had anticipated.,
Defendant
began
a dialogue
with
plaintiff
to come
up
with
mutually
acceptable
remedial
measures.
(Plaintiff
disputed
the validity
and significance
of the
statistics
or that
there
was
any problem
with
his cardiovascular
surgeries.)
Defendant
asked
plaintiff
to come
up with
an action
plan,
and plaintiff
delayed
doing
so.
For several
months,
the parties
wrangled
over
an
“action
plan.”
Finally,
plaintiff
consented
to perform
cardio-
vascular
surgery
only
under
the direct
supervision
of either
of
two named
cardiac
surgeons
affiliated
with
Carle
Clinic.
He
thereafter
performed
some cardiovascular
surgeries
under
supervi-
sion.
Later,
he withdrew
his
consent
to supervision,
because
he
thought
defendant
was
imposing
“inappropriate
and stringent
requirements”
on the cardiac
surgeon
supervising
his surgeries,
namely,
that
the supervisor
must
see
the patient
before
surgery,
remain
throughout
surgery,
and see the patient
after
surgery.
Plaintiff
notified
defendant
that
he had
scheduled
an open-heart
surgery
and
would
perform
it without
supervision.
Alarmed
by that
announcement,
defendant’s
president
and
chief
executive
officer,
Diane
Friedman,
sought
a recommendation
– 8 –
from
persons
on the medical
staff
that plaintiff’s
clinical
privilege
to perform
open-heart
surgery
should
be summarily
suspended
pursuant
to section
8.2.1
of the medical
staff’s
bylaws.
She
spoke
with
the president
of the medical
staff,
an
officer
of the medical
staff,
and a department
chairman.
Fried-
man
states
in an affidavit:
“I was told
by those
individuals
that
either
they
did not want
to get
involved
in
litigation
themselves
or,
in the case
of the
[p]resident
of the
[m]edical
[s]taff,
wanted
legal
advice
in this matter.
He was leaving
*** town
and asked
the
[s]ecretary-
It] reasurer
Of the
[m] edical
Is] taff
to get
involved.
The
Is] ecretary-
It] reasurer
then
obtained
legal
advice
and would
not agree
to
get
involved
***.”
Plaintiff
was
the chairman
of the department
of surgery.
After
Friedman
reached
a dead
end with
the medical
staff,
the
executive
committee
of defendant’s
board
of directors
held
a special
meeting.
In the minutes
of that
meeting,
they
found
that
“a cooperative
effort
is not being
undertaken
by the
medical
staff
so that
the medical
center
may properly
fulfill
its
obligations
to its patients”
and
“imminent
danger
to patients
exists
if
[plaintiff]
were
to perform
an open[-]heart
surgery
procedure
not under
the direct
supervision
of another
qualified
cardiac
surgeon.”
Therefore,
the committee
authorized
Friedman
to summarily
suspend
plaintiff’s
clinical
privilege
to perform
_
open-heart
surgery
if plaintiff
persisted
in his
rejection
of
supervision.
Citing
section
8.Z.1 of the medical
staff’s
bylaws
and the executive
committee’s
resolution,
Friedman
notified
plaintiff,
by letter,
that
she was summarily
suspending
his
clinical
privilege
to perform
open-heart
surgery.
She advised
him of his right
to a hearing
under
section
8.2.2
and article
9
of the medical
staff’s
bylaws.
Plaintiff
brought
this action
against
defendant,
alleging
that
the
summary
suspension
violated
the bylaws,
under
which
defendant
could
summarily
suspend
clinical
privileges
only
upon
the recommendation
of a member
of the medical
staff.
The
trial
court
entered
an order
.temporarily
restrain[ing]
[defen-
dant]
from
suspending
the medical
staff
membership
of all or any
portion
of the clinical
privileges
of plaintiff
until
such
time
as defendant
complies
with
section
8.2.1
of the medical
staff
bylaws.”
This
appeal
followed.
II. ANALYSIS
A. Standards
of Review
This
appeal
requires
us to apply
three
standards
of
review.
We will
ask whether
the temporary
restraining
order
was
an abuse
of discretion.
Ron
Smith
Truckinq,
Inc. v. Jackson,
196
Ill. App.
3d 59,
63, 552 N.E.2d
1271,
1275
(1990).
When
review-
ing the factual
findings
on which
the trial
court
based
its
temporary
restraining
order,
we will
ask whether
they
are against
the manifest
weight
of the evidence.
Ron Smith
Truckinu,
196
Ill. App.
3d at 63, 552 N.E.2d
at 1275.
Insomuch
as we must
– i0
interpret
bylaws,
regulations,
and statutes,
we will
interpret
them
de novo.
C.J.v.
Department
of Human
Services,
331 Ill.
App.
3d 871,
879,
771 N.E.2d
539, 547
(2002);
Butler
v. USA
V011evball,
285 Ill. App.
3d 578,
582, 673 N.E.2d
1063,
1066
(1996);
_.
Hanna,
332 Ill. App.
3d 527,
530,
773 N.E.2d
178,
180
(2002).
B. Violation
of a Bylaw
Courts
are
ill-qualified
to run a hospital,
but
they
can read
and
interpret
bylaws.
Therefore,
when
a physician
sues
over
the
suspension
of a clinical
privilege,
the court
will
ask
only
one question:
did
the suspension
violate
any bylaw?
Adkins
v. Sarah
Bush
Lincoln
Health
Center,
129 Ill.
2d 497,
506-507,
544 N.E.2d
733,
738
(1989).
If the suspension
violated
no bylaw,
the
court
will
defer
to the superior
qualifications
of the
hospital
officials
who made
the decision.
Adkins,
129 Ill.
2d at
507,
544 N.E.2d
at 738.
(Of course,
if a court
has
authority
to
review
the
suspension
of a clinical
privilege
for compliance
with
bylaws,
the mere
denomination
of the clinical
privilege
as a
,privilege”
rather
than
a .right”
does
not mean
that plaintiff
lacks
a remedy
for improper
suspension
of the privilege.)
Plaintiff
contended,
and the trial
court
agreed,
that
because
no one on the medical
staff
had recommended
the summary
suspension
of plaintiff’s
clinical
privilege
to perform
open-
heart
surgery,
defendant’s
imposition
of the suspension
violated
section
8.2.1
of the medical
staff’s
bylaws.
That
section
provides
that
when
necessary
to “prevent
imminent
danger
to an
individual,”
the chief
executive
officer
has
the authority
to
– ii
summarily
suspend
clinical
privileges
“uPon
the recommendation
of” _ department
chair,
the president
of the medical
staff,
or an
officer
of the medical
staff.
(Emphasis
added.)
Defendant
counters
that
to accept
plaintiff’s
argument,
one would
have
to regard
section
8.2.1
with
tunnel
vision,
ignoring
other
provisions
of the bylaws
as well
as federal
and
state
law.
The medical
staff’s
bylaws
state,
for example,
that
the medical
staff
is ,subject
to the ultimate
authority
of the
medical
center
board
of directors.”
Further,
according
to the
medical
staff’s
bylaws,
the medical
staff
is to ,,serve as the
primary
means
of accountability
to the
[b]oard
of
[d]irectors
for
the appropriateness
of the professional
performance
*** of its
members. “
Under
the hospital
board’s
bylaws,
the medical
staff
is
• subject
to the ultimate
authority”
of the hospital
board,
which
has the duty
to “assure
that
there
are *** practices
which
comply
with
the requirements
for *** quality
improvement,
particularly
emphasizing
the assessment
and continuous
improvement
of the
quality
of patient
care.”
The bylaws
echo the requirements
of state
and federal
law.
A hospital
must
have
an .effective
governing
body
legally
responsible
for the
conduct
of the hospital
as an institution.”
42 C.F.R.
§482.12
(2001).
The governing
body
“must
***
[e]nsure
that
the medical
staff
is accountable
to the governing
body
for
the quality
of care
provided
to patients.”
42 C.F.R.
§482.12(a)
(5) (2001);
see 42 C.F.R.
§482.22(b)
(2001);
210
ILCS
85/4.5(b)
(2) (West 2002)
(“a single
medical
staff
accountable
to
12 –
t
the board
of directors”).
“The
[governing]
board
shall
be
responsible
for the maintenance
of standards
of professional
work
in the hospital
and shall
require
that the medical
staff
function
competently.”
77 Ill. Adm.
Code
§250.210(f)
(Conway
Greene
CD-
ROM March
2002).
Defendant
reasons
that
because
the hospital
board
has
a
duty
to maintain
the quality
of medical
care
in the hospital
and
the medical
staff
is accountable
to the hospital
board
for the
quality
of care,
the chief
executive
officer
can summarily
suspend
clinical
privileges
upon
the resolution
of the hospital
hoard,
and not merely
upon
the recommendation
of members
of the
medical
staff,
when
necessary
to protect
patients
from
imminent
harm.
Defendant
finds
authority
for the
summary
suspension
in
section
10.4(b) (2) (C) (i) of the Hospital
Licensing
Act
(210 ILCS
85/i0.4(h)
(2) (C) (i) (West 2002)),
which
provides:
“Nothing
in this
subparagraph
(C) [(cre-
ating
a right
to a hearing
on summary
suspen-
sion)]
limits
a hospital’s
*** right
to sum-
marily
suspend,
without
a prior
hearing,
a
person’s
*** clinical
privileges
if the con-
tinuation
of practice
of a medical
staff
member
constitutes
an immediate
danger
to ***
patients
***.”
We agree
with
defendant’s
interpretation
of that
statute.
Section
10.4(b)
(2) (C) (i) plainly
presupposes
that
the hospital
has
an inherent
right
to summarily
suspend
the clinical
privi-
– 13
leges
of a physician
whose
continued
practice
poses
an immediate
danger
to patients.
That
right
necessarily
flows
from
the ultimate
respon-
sibility
that
federal
and state
law places
on the hospital
board
for the quality
of care.
The governing
body
of a hospital
“must
***
[e]nsure
that
the medical
staff
is accountable
to the govern-
ing body
for the quality
of care provided
to patients.”
(Empha-
sis added.)
42 C.F.R.
§482.12(a)
(5) (2001).
“The
[governing]
board
shall
be responsible
for the maintenance
of standards
of
professional
work
in the hospital
and shall
require
that
the
medical
staff
function
competently.”
(Emphasis
added.)
77 Ill.
Adm.
Code
§250.210(f)
(Conway
Greene
CD-ROM
March
2002).
“Accountability”
would
be an empty
word
without
the
means
of holding
someone
accountable.
“Responsibility”
would
be
an empty
word
without
the means
of fulfilling
that
responsibil-
ity.
If the medical
staff
had the power
to veto
any restrictions
the hospital
would
impose
on a physician’s
defective
practice–if
the hospital
could
stop
substandard
treatment
only
upon
the
medical
staff’s
recommendation
or approval–the
medical
staff
would
effectively
not be .accountable”
to the hospital
for the
quality
of care,
and the hospital
could
not
“require”
the medical
staff
to do anything
to eliminate
an imminent
danger
to patients.
If, without
the medical
staff’s
approval,
a hospital
could
not
summarily
suspend
the clinical
privilege
of a physician
whose
patients
have
a mortality
rate
twice
that
of the national
average,
the hospital
could
not do so if the mortality
rate
rose
to i0 times
that
of the national
average.
Until
the medical
– 14 –
staff
saw fit
to act,
the hospital
would
be at the mercy
of the
physician’s
incompetence.
“The hospital
may be liable
for a
physician’s
misconduct
on a resDondeat
superior
theory
when
an
employer-employee
or principal-agent
relationship
is present
or
for the violation
of an independent
duty
owed by the hospital
to
review
and supervise
medical
care
administered
to the patient..
Alford
v. PhiDDS,
169 Ill. App.
3d 845, 858,
523 N.E.2d
563,
571
(1988).
Under
plaintiff’s
interpretation
of the bylaws,
defen-
dant
would
have
to pay
the bill
for a staff
member’s
medical
malpractice
but
would
be powerless
(without
the medical
staff’s
recommendation)
to prevent
the malpractice
in the
first
place.
Defendant
could
only
stand
aside,
making
feeble
noises
of pro-
test,
while
its
“ox got gored.”
If a bylaw,
properly
interpreted,
put
a hospital
in
that untenable
position,
we would
strike
it down
as a violation
of public
policy.
Bylaws
are unenforceable
to the extent
that
they violate
statutes
or regulations.
Garibaldi
v. Applebaum,
301 Ill. App.
3d 849,
858,
704 N.E.2d
698,
705
(1998),
aff’d
in
part
! rev’d
in part
on other
qrounds,
194 Ill.
2d 438,
742
N.E.2d
279
(2000).
Federal
and state
regulations
place
ultimate
responsibility
for the quality
of medical
care
squarely
on the
governing
board’s
shoulders.
42 C.F.R.
§482.12(a)
(5)
(2001);
77
Ill. Adm.
Code
§250.210(f)
(Conway
Greene
CD-ROM
March
2002).
“Hospitals
have
an independent
duty
to provide
for the patient’s
health
and welfare.”
Berlin
v. Sarah
Bush Lincoln
Health
Center,
179 Ill. 2d 1, 19, 688 N.E.2d
106,
114
(1997).
“IT]he
hospital
may owe a duty,
independent
of any relationship
between
phTsician
– 15 –
and patient,
to review
and supervise
the medical
care
adminis-
tered
to a patient.”
(Emphasis
added.)
Gilbert
v. Sycamore
MuniciPal
HosPital,
156 Ill.
2d 511, 518,
622 N.E.2d
788,
792
(1993).
Any bylaw
that
effectively
prevented
the governing
board
from performing
that
duty
would
be void.
Just
as we should
interpret
contracts
in such
a way
that
they do not violate
public
policy
(if the contractual
language
reasonably
allows
such an interpretation)
(West Bend
Mutual
Insurance
Co. v. Mulli_an
Masonry
Co.,
337 Ill. App.
3d
698,
705,
786 N.E.2d
1078,
1084
(2003)),
we should
interpret
section
8.2.1
of the medical
staff’s
bylaws
in such
a way that
it
does
not violate
public
policy.
Section
8.2.1
says
that
the
chief
executive
officer
“is authorized”
to summarily
suspend
a
practitioner’s
clinical
privileges
“upon
the recommendation
of”
the chair
of a department,
the president
of the medical
staff,
or
an officer
of the medical
staff.
On its face,
section
8.2.1
does
not say that
the chief
executive
officer
can impose
the
summary
suspension
only
upon
their
recommendation.
The hospital
itself
has
inherent
authority
to summarily
suspend
clinical
privileges
to prevent
an imminent
danger
to patients.
210 ILCS
85/I0.4(b)
(2) (C) (i)
(West 2002).
To that end,
the
chief
execu-
tive
officer
can
impose
a summary
suspension
on the authority
of
the hospital
board.
By stating
that
the chief
executive
officer
may
suspend
clinical
privileges
upon
the recommendation
of members
of the
medical
staff,
section
8.2.1
merely
acknowledges
that
such
decisions
should
normally
be the result
of a collaboration
– 16
.I
between
the governing
body
and medical
staff.
The Joint
Commis-
sion on Accreditation
of Healthcare
Organizations
(Joint
Commis-
sion)
requires
that
the
,governing
body”
make
decisions
on
clinical
privileges
“based
on medical
staff
recommendations,
in
accordance
with
the bylaws
***.”
Joint
Commission