McLeay v. Bergan Mercy Health Systems Corp.
John F. McLeay, M.D., appellee, v.
Bergan Mercy Health Systems
Corp., doing business as
Bergan Mercy Medical Center, appellant.
McLeay v. Bergan Mercy Health Sys.
(not designated for permanent
publication)
Filed February 27, 2001. No. A-99-474.
Appeal from the District Court for Douglas County: Joseph
S. Troia, Judge. Reversed and vacated, and cause remanded for a new trial.
P. Shawn McCann and Joseph S. Daly, of Sodoro, Daly &
Sodoro, for appellant.
David S. Houghton and J.P. Sam King, of Leiben, Whitted,
Houghton, Slowiaczek & Cavanagh, P.C., for appellee.
Irwin, Chief Judge, and Sievers and Carlson, Judges.
Carlson, Judge.
INTRODUCTION
Bergan Mercy Health Systems Corp., doing business as
Bergan Mercy Medical Center (Bergan Mercy), appeals from a $451,000 judgment
entered against it pursuant to a jury verdict in this breach of contract action.
For the reasons set forth below, we vacate the jury’s verdict, reverse the
judgment of the district court, and remand the cause for a new trial.
BACKGROUND
John F. McLeay, M.D., is a general surgeon in Omaha, in
solo private practice since 1963. He has been a member of Bergan Mercy’s medical
staff since that date and, at all times relevant, had hospital privileges at
both Bergan Mercy and St. Joseph Hospital.
On or about October 19, 1992, McLeay received a letter
from Dr. Richard Feldhaus, then chief of the medical staff at Bergan Mercy and a
member of the hospital’s surgery advisory committee. In that letter, Feldhaus
advised McLeay that the committee had been authorized to undertake an
investigation of patient care provided by McLeay to unspecified patients at
Bergan Mercy. McLeay received no further communications from Bergan Mercy until
December 2, when he received a letter from Richard Hachten II, president of
Bergan Mercy, advising him that a monitoring requirement for surgeries had been
imposed upon him. Shortly after receiving this letter, McLeay had a personal
conversation with Feldhaus, complaining that he had not received any advance
notice about the monitoring requirement. On December 28, McLeay received a
telephone call from Dr. Dwaine Peetz, chairman of the hospital’s surgical
advisory committee. Peetz asked McLeay to meet with him and two other members of
an ad hoc committee to review some medical charts and to discuss the monitoring
requirement. McLeay met with Peetz and another member of the ad hoc committee,
Dr. Daniel McKinney, on the morning of December 29. At that time, McLeay was
told the names of eight patients whom he had treated over the past 15 months and
whose quality of care underlay the imposition of the monitoring requirement. No
files or charts regarding those patients were available for review at that
meeting. The discussion focused upon the committee’s decision to continue the
monitoring requirement. According to McLeay, the discussion resulted in an oral
agreement that (1) the monitoring requirement would remain in place for 6 to 12
months, (2) the monitoring requirement would be kept confidential, and (3) the
committee would provide McLeay with a “laundry list” of relatively minor
surgical procedures that could be performed without a monitor.
On January 8, 1993, McLeay met again with Peetz, Feldhaus,
and McKinney of the ad hoc committee. On that date, the eight cases were again
discussed. At the conclusion of that meeting, McLeay was presented with a copy
of the minutes of a previous meeting of the ad hoc committee held the previous
day without McLeay. Those minutes included the following:
Based on the information available to the Committee, the membersThe minutes also
decided on the following actions:
1. An imposition of a
restriction of Dr. John McLeay’s surgical privileges in which there is a
requirement that the physician must have an assistant for all surgery
performed. Dr. Anthony Pantano or a Board Certified surgeon may serve as the
assistant.
2. Dr. McLeay will be removed from the call
list for the Emergency Medicine department.
contained the following statement: “These minutes are privileged communications
and are not subject to disclosure or legal discovery proceedings under [Neb.
Rev. Stat. ??] 71.2046 to 2048.” McLeay signed the minutes, but later testified
that he understood from his meeting on January 8 that the monitoring requirement
would continue for 6 months to 1 year and that he would be provided with a
laundry list.
On January 12, 1993, McLeay was presented with a copy of
the minutes from a meeting of the ad hoc committee held the previous day. Those
minutes were stamped “confidential” at the top and again contained the
statement: “These minutes are privileged communications and are not subject to
disclosure or legal discovery proceedings under [Neb. Rev. Stat. ??] 71.2046 to
2048.” Those minutes stated, inter alia:
Following discussion, motion was made andMcLeay signed those minutes on
unanimously passed approving the restriction of Dr. John McLeay’s surgical
privileges as follows:
1. An imposition of . . . a
requirement that the physician must have an assistant for all surgery
performed. Dr. Anthony Pantano or a Board Certified surgeon may serve as the
assistant.
. . . .
4. The
following minor procedures were agreed upon as those which Dr. McLeay could
perform without an assistant:
1. removal of skin
lesions
2. carpal tunnel repair
3.
outpatient hernia repair defined as inguinal hernia including direct,
and
4. repair of lacerations.
5.
The surveillance of this restriction will be maintained through the normal
monitoring mechanisms.
This recommendation will be
forwarded to the Board of Directors and is effective January 11, 1993 subject
to subsequently [sic] Board approval.
a signature line which stated that those minutes were “accepted and agreed to.”
On or about February 11, 1993, McLeay received a letter
from Hachten advising McLeay that Bergan Mercy’s board of directors had approved
and accepted the recommendations outlined in the minutes signed by McLeay on
January 12. On February 18, McLeay wrote to Peetz asking that a laundry list be
provided and listing several suggested procedures he would like to have included
on that list. On or about February 26, McLeay received a letter from Hachten
advising him that the monitoring requirement had been reported to the National
Practitioner Data Bank (NPDB), a national information clearinghouse established
by the U.S. government pursuant to the Health Care Quality Improvement Act of
1986 (HCQIA), 42 U.S.C. ? 11101 et seq. (1994).
On March 12, 1993, McLeay received a letter from the NPDB
advising him of the information reported by Bergan Mercy and notifying him of
the procedures to correct any inaccurate information. McLeay responded to the
NPDB letter, asserting that the information was inaccurate; the record, however,
contains no indication as to the effect of this response. In a letter dated May
13, 1993, Hachten advised McLeay that the conditions set out in the January 12
minutes would not be modified in any manner.
On December 2, 1993, McLeay sent a letter to Peetz
requesting reinstatement of full surgical privileges without a monitoring
requirement. That request was denied by the board of directors, according to a
letter from Hachten dated June 1, 1994. In that letter, Hachten further stated
that “the Board of Directors did request the Medical Executive Committee and the
Surgery Ad Hoc Review Committee to develop criteria you may strive to meet in
order to have this requirement removed.”
McLeay then hired an attorney and had a petition of a
lawsuit drafted, and on September 9, 1994, he had a copy of that unfiled
petition delivered to Bergan Mercy’s lawyers. On December 9, Feldhaus called
McLeay to schedule a meeting with him. McLeay asked to have his attorney
accompany him, but Feldhaus said attorneys were not invited. McLeay refused to
attend without his attorney. Shortly after the conclusion of that telephone
call, Hachten telephoned McLeay and read him a letter advising McLeay that his
privileges at Bergan Mercy had been summarily suspended, ostensibly because of
information relating to a procedure performed by McLeay in 1991. McLeay received
that letter a few days later.
On or about December 13, 1994, Hachten sent McLeay a
letter advising him that the medical executive committee had voted to continue
his summary suspension pending a final decision by the board of directors. On or
about January 11, 1995, McLeay, through his attorney, requested a hearing before
the medical executive committee. A hearing was scheduled for March 9, but on or
about March 8, McLeay requested a postponement; the hearing was never held. The
NPDB was notified of the summary suspension, and on or about March 23, McLeay
received a copy of the NPDB report, which stated that he had been summarily
suspended because of incompetence, negligence, and malpractice.
On February 26, 1996, McLeay filed an amended petition in
Douglas County District Court alleging breach of contract and asserting that he
had suffered lost income, damage to his career and reputation, and unspecified
general damages. The case was tried to a jury beginning on November 9, 1998.
After Bergan Mercy rested, the jury was instructed that
McLeay’s action alleged two counts: breach of contract and breach of the
hospital bylaws. On November 16, the jury returned a verdict of $451,000 for
breach of agreement and $1 for breach of bylaws. Bergan Mercy’s subsequent
motions for judgment notwithstanding the verdict and for a new trial were
overruled on March 30, 1999. Bergan Mercy timely filed the instant notice of
appeal on April 29.
ASSIGNMENTS OF ERROR
Bergan Mercy’s broad attack upon the decision of the
district court consists of a fusillade of 23 asserted and assorted procedural,
evidentiary, and legal errors. All but lost in that assault is the first portion
of assignment of error No. 17, in which Bergan Mercy asserts that the trial
court erred by “admitting into evidence testimony concerning whether Bergan was
required to file a Data Bank Report.” As further explained below, we find that
particular assertion of error to be dispositive of this appeal. Accordingly, we
will not definitively address the remaining assignments of error.
STANDARD OF REVIEW
A civil verdict will not be set aside where evidence is in
conflict or where reasonable minds may reach different conclusions or
inferences, as it is within the jury’s province to decide issues of fact.
Ratigan v. K.D.L., Inc., 259 Neb. 283, 609 N.W.2d 376 (2000). A jury
verdict will not be set aside unless clearly wrong, and it is sufficient if any
competent evidence is presented to the jury upon which it could find for the
successful party. Id.
When reviewing a question of law, an appellate court
reaches a conclusion independent of the lower court’s ruling. Ethanair Corp.
v. Thompson, 252 Neb. 245, 561 N.W.2d 225 (1997).
The admissibility of evidence is reviewed for an abuse of
discretion where the Nebraska Evidence Rules commit the evidentiary question at
issue to the discretion of the trial court. State v. Allen, 252 Neb. 187,
560 N.W.2d 829 (1997). A trial court has the discretion to determine the
relevance and admissibility of evidence, and such determinations will not be
disturbed absent an abuse of that discretion. Blue Valley Co-op v. National
Farmers Org., 257 Neb. 751, 600 N.W.2d 786 (1999).
ANALYSIS
Dispositive Issue: Inappropriate Expert Testimony
Bergan Mercy asserts that the trial court erred in
permitting Kelly Clarke, an attorney called by McLeay as an expert witness, to
present his opinion as to whether Bergan Mercy was obligated by law to report
its peer review decision to the NPDB. Bergan Mercy had objected to that the
testimony on the ground, inter alia, that “it’s not proper use of expert
testimony.” We agree.
In Kaiser v. Western R/C Flyers, 239 Neb. 624, 477
N.W.2d 557 (1991), the trial court had been presented with the issue of whether
the relevant zoning ordinance precluded operation of a model airplane flying
field near the village of Springfield. Both parties had introduced expert
testimony in support of their respective interpretations of the Springfield
zoning ordinances. The Supreme Court held that this evidence was irrelevant,
explaining:
[E]xpert testimony is relevant and admissible only if it tends to(Citations
help the trier of fact understand the evidence or to determine a fact issue
and that expert testimony concerning the status of the law does not tend to
accomplish either of these goals. Expert testimony concerning a question of
law is generally not admissible in evidence. . . . The interpretation of a
zoning ordinance presents a question of law, and we decline to consider any
expert testimony as to what constitutes a “commercial” or a “private”
recreational use under the Springfield zoning ordinances.
omitted.) Id. at 628, 477 N.W.2d at 560. Similarly, in Sports Courts
of Omaha v. Brower, 248 Neb. 272, 534 N.W.2d 317 (1995), a law professor
testified, over objection, that the actions taken by an attorney serving as
monitor and agent of a corporation constituted a disposition of collateral under
provisions of Neb. U.C.C. ? 9-504 (Reissue 1980) and that appropriate notice was
not given. The Supreme Court held that the trial court erred in permitting the
professor to testify on what the Supreme Court deemed to be a matter of
statutory interpretation.
Clearly, by these standards, Clarke’s testimony, which had
the sole purpose of advising the court of the status of the law as it relates to
reporting to the NPDB, was irrelevant and inadmissible. It was accordingly an
abuse of discretion for the district court to admit it. A judicial abuse of
discretion exists when the reasons or rulings of a trial judge are clearly
untenable, unfairly depriving a litigant of a substantial right and a just
result. Westgate Rec. Assn. v. Papio-Missouri River NRD, 250 Neb. 10, 547
N.W.2d 484 (1996).
However, our conclusion that the trial court erred in
admitting Clarke’s testimony does not end our inquiry. To constitute reversible
error in a civil case, the admission or exclusion of evidence must unfairly
prejudice a substantial right of a litigant complaining about evidence admitted
or excluded. Sacco v. Carothers, 257 Neb. 672, 601 N.W.2d 493 (1999). We
believe such prejudice occurred in this case. “Proof in the trial of a jury case
should be confined to the issues made by the pleadings, and the admission of
testimony wrongfully received in a case tried to a jury is prejudicial error
where it may have influenced the verdict.” Witte v. Lisle, 184 Neb. 742,
746, 171 N.W.2d 781, 783 (1969). Obviously, permitting the jury to decide, as it
necessarily had to do under the evidence and instructions, whether Bergan Mercy
made its report because the law required it or because it freely chose to do so,
may well have influenced the verdict. As we suggest later herein, it appears
that the question of whether Bergan Mercy was required by law to report its
actions against McLeay is not a jury question. But examination of the jury
instructions reveals that the trial court submitted to the jury the fact of
Bergan Mercy’s filing of an adverse action report with the NPDB as part of what
McLeay needed to prove with respect to his claim that Bergan Mercy breached its
bylaws. In short, a matter upon which expert testimony was wrongfully received
was submitted to the jury, when as we later suggest the question is one of law
for the court. Nebraska case law makes it clear that unless it appears from the
record that evidence wrongfully admitted in a jury trial did not affect the
result of the trial unfavorably to the party against whom it was admitted, its
reception must be considered prejudicial error. Westgate Rec. Assn.,
supra; Singles v. Union P. R.R. Co., 174 Neb. 816, 119 N.W.2d 680
(1963); Fries v. Goldsby, 163 Neb. 424, 80 N.W.2d 171 (1956); Lane v.
Burt County Rural Public Power Dist., 163 Neb. 1, 77 N.W.2d 773 (1956).
Under these circumstances, we find the admission of Clarke’s expert testimony to
be prejudicial error which necessitates a new trial.
Remaining Assignments of Error
Our holding that a new trial is required makes it
undesirable and inefficient for us to attempt to decide Bergan Mercy’s remaining
assigned errors. We reach this conclusion because the majority of the other
assigned errors appear to stem from the fact that this case was seemingly tried
with little regard for the role that the HCQIA would play (including as a matter
of law) in a case centered around a hospital’s discipline of a staff physician.
The general rule is that an appellate court is not obligated to engage in
analysis not necessary to adjudicate the case and controversy before it.
Springer v. Bohling, 259 Neb. 71, 607 N.W.2d 836 (2000); Kelly v.
Kelly, 246 Neb. 55, 516 N.W.2d 612 (1994). However, it is also true that
even where a cause is remanded for new trial, other issues raised, but not
necessary for disposition of the instant case, should be addressed where doing
so would be in the interest of judicial economy. See, State v. Porter,
235 Neb. 476, 455 N.W.2d 787 (1990); Smith v. Kellerman, 4 Neb. App. 178,
541 N.W.2d 59 (1995). But, we conclude that attempting to decide the remaining
issues in view of the fact that a new trial is required would not be judicial
economy.
Many of the remaining issues raised on appeal, for example
exhaustion of remedies, the “primary jurisdiction doctrine,” the parol evidence
rule, and claims of statutory immunity or common-law privilege for actions
arising out of the peer review process, are matters that would have been better
addressed by various pretrial procedural avenues. We believe, although we do not
decide the matter, that the core facts of this case are such that the immunity
provisions of the HCQIA are likely implicated in a substantial way. For an
excellent discussion of the HCQIA, see Bryan v. James E. Holmes Regional
Medical Center, 33 F.3d 1318, 1337 (11th Cir. 1994), a case described by the
court as “a disciplined physician attempt[ing] to have a jury revisit the
adverse decision of his medical colleagues.” In Bryan, supra, on the
basis of immunity under the HCQIA, a $4.2 million judgment in favor of a
disciplined doctor against the hospital was reversed, including a state law
claim that the hospital had breached its bylaws upon which the jury had found in
the doctor’s favor and awarded millions of dollars in damages. The Bryan
court also said that the HCQIA immunity is a “question of law for the court to
decide and [the immunity] may be resolved whenever the record in a particular
case is sufficiently developed.” 33 F.3d at 1332.
It is of no small consequence that the HCQIA creates a
presumption favoring immunity which McLeay has the burden to overcome. Thus, in
the interest of judicial economy, we do not attempt to decide all assignments of
error, knowing that after this appeal a retrial is likely to be very different
from the first trial.
We recognize that the answer of Bergan Mercy does not
directly allege that its actions concerning McLeay are immunized under the
HCQIA. Nonetheless, the answer does allege that Bergan Mercy “properly filed”
notice of its adverse action and “was required to file the report by federal
law.” Finally, as said earlier, immunity under the HCQIA is a question of law
which Congress intended to be resolved at the early stages of litigation, such
as by a motion for summary judgment. Babcock v. Saint Francis Med. Ctr.,
4 Neb. App. 362, 543 N.W.2d 749 (1996).
We further note, though not raised by the parties in their
briefs, lurking issues of potential contractual construction. Bergan Mercy
appears to suggest that it should be excused from performance of any contractual
obligation of confidentiality because it could not legally meet that obligation
due to the reporting requirements of the HCQIA. Presuming, but not deciding,
that Bergan Mercy was so obligated, the obvious question then arises, whether by
using the term “confidentiality” the parties intended for Bergan Mercy to
totally suppress all communication about the consequences of the peer review
process, regardless of the HCQIA, or whether they intended that Bergan Mercy
would simply refrain from making any communications not statutorily required. In
this regard, we read the evidence (and McLeay’s contentions) to be that Bergan
Mercy made no disclosure except within the peer review process and to the NPDB.
If the parties intended that Bergan Mercy would break the law, then McLeay would
be precluded from seeking judicial enforcement of that portion of the contract,
since the courts will not aid either party to an illegal contract, Springer
v. Kuhns, 6 Neb. App. 115, 571 N.W.2d 323 (1997). These issues, again, would
appear to be prime candidates for early resolution upon our remand.
CONCLUSION
We conclude that the trial court committed prejudicial and
reversible error in permitting McLeay to introduce expert testimony relating to
the question of whether Bergan Mercy was obligated by law to report its peer
review process actions to the NPDB. We accordingly vacate the jury’s verdict,
reverse the judgment of the trial court, and remand the cause to the district
court for a new trial.
Reversed and vacated, and cause
remanded for a new
trial.