Mitchell v. Mid-Ohio Emergency Services

[Cite as Mitchell v. Mid-Ohio Emergency Services, L.L.C., 2004-Ohio-5264.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

Geoffrey C. Mitchell, M.D.,

Plaintiff-Appellant,

Mid-Ohio Emergency

Services, L.L.C. et al.,

Defendants-Appellees.

O P I N I O N

Rendered on September 30, 2004

No. 03AP-981

(C.P.C. No. 90CVH03-2427)

(REGULAR CALENDAR)

Mike Moore, for appellant/cross-appellee Geoffrey C. Mitchell.

Roetzel & Andress, Stephen D. Jones and Eric Bravo, for
appellees/conditional
Grant/Riverside
cross-appellant
Methodist Hospitals and Suzanne DeWoody.

Wickens, Herzer, Panza, Cook & Batista, Matthew W. Nakon
and Rachelle Kuznicki Zidar, for appellees/conditional cross-
appellants Mid-Ohio Emergency Services, L.L.C., John
Drstvensek, M.D., InPhyNet Hospital Services, Inc. and Acute
Care Specialists, Inc.

Steve J. Edwards and David J. Millstein, for Amici American
Academy of Emergency Medicine.

APPEAL from the Franklin County Court of Common Pleas.

WATSON, J.

No. 03AP-981

{¶1}

Plaintiff-appellant, Geoffrey C. Mitchell (“Mitchell”), appeals from the

decision of the Franklin County Court of Common Pleas granting defendants-appellees’

motions for summary judgment. For the following reasons, we affirm.

{¶2} Mitchell is an emergency physician licensed to practice medicine in the

state of Ohio. Mid-Ohio Emergency Services, L.L.C. (“Mid-Ohio”) employed Mitchell for

the three months prior to his termination, September 1, 1998 through November 30,

1998. Prior to Mid-Ohio, Olentangy Emergency Physicians (“OEP”) employed Mitchell.

OEP operated the emergency department at Riverside Methodist Hospital (“ED”) until

August 31, 1998.1 RMH entered into an exclusive contract with Mid-Ohio for the provision

of medical services at ED. Under the contract, only a physician employed by Mid-Ohio

could perform services in the ED. As part of Mid-Ohio’s operating agreement, ownership

of Mid-Ohio was divided 50% to InPhyNet and 50% among the member physicians.

{¶3} Mid-Ohio selected Dr. John Drstvensek to serve as its medical director over

both the Grant and RMH campuses. Dr. Drstvensek maintains the same interest in Mid-

Ohio as the other member physicians. Dr. Gregory Decker is President of Mid-Ohio.

Mitchell was hired by Mid-Ohio as a part-time emergency physician. Mitchell received his

paycheck from Mid-Ohio and Mid-Ohio scheduled his shifts at ED. Mitchell was given the

additional title of Medical Education Coordinator (“MEC”).2 At that time, Mitchell signed a

contract with Dr. Decker to become a part-time employee as well as serve as Mid-Ohio’s

1 Riverside Methodist Hospital (“RMH”) and Grant Hospital (“Grant”) were merged into a single hospital in
1995. Riverside’s emergency department was previously serviced by OEP. Acute Care serviced Grant
Hospital’s emergency department. After the merger, InPhyNet Medical Management, Inc. (“InPhyNet”)
assumed all the emergency duties. Mid-Ohio was eventually formed, in which InPhyNet became a
shareholder and was responsible for the management of the new physician group.

2 Mid-Ohio maintains it was hesitant to initially offer Mitchell any position because of his reputation as a
disruptive force in the ED, did not work as a team player, and violated hospital policy by taking home patient
charts for dictation.

No. 03AP-981

MEC for an additional salary of $20,000. As MEC, Mitchell reported to Pam Boyers,

Ph.D., Director of Medical Education at RMH.

{¶4}

In 1998, Grant/RMH implemented the stable admit policy to reduce

overcrowding in the RMH ED. The protocol required stable patients being admitted to the

hospital to be moved to regular hospital beds to free up ED beds and ED examination

rooms. Mitchell opposed the policy stating it conflicted with the teaching nature of RMH

because the resident physician would not have the chance to see and examine the

patient in the ED with the guidance of the ED physician.

{¶5}

The situation at Grant/RMH came to a head on November 9, 1998. A

patient came to the RMH ED with chest pains and was initially assessed as being low risk

for cardiac arrest. The patient was put in a bed in the hallway. However, while the

patient was waiting, she collapsed and suffered cardiac arrest. Dr. Ron Taylor was the

ED physician on duty at the time of the incident and Mitchell spoke with him about it the

following day. Although the patient ultimately lived, Mitchell decided to write a letter to Dr.

Richard Shonk, Vice President of Medical Affairs for RMH (“Shonk letter”), regarding the

incident. The letter indicates it is a Clinical Process Improvement Team (“CPIT”) referral.

It further states:

Dear Dr. Shonk:

I believe you are the appropriate individual to review this
case. I understand that you are the ultimate agent of quality
medical care and chair of the hospital wide CPIT committee.

Mrs. XXXXX is another unfortunate victim of the gross
overcrowding of our department. It is my contention that this
is a significant quality of care issue.

Mrs. XXXXX presented to our ED in the early afternoon.
Because the ED was in its usual * overcrowded state, she

No. 03AP-981

was triaged to a hallway bed. It (sic) spite of the fact that she
had complained of chest pain, no EKG was done because
she was in the hallway. It was not until she dropped dead (V-
Fib = “cardiac sudden death”) that she was moved into a
room. There she was vigorously resuscitated by 4 or 5
physicians * * * .

* * * Any good physician knows that it is a good idea to obtain
an EKG on a middle-aged patient with chest pain. We
already have written chest pain policies which stipulate that a
physician should have had Mrs. XXXXX’s EKG in his hand
within 5 minutes of her arrival. Unfortunately this protocol
didn’t do her any good.

* * *

Believe me, I am well aware that bad things happen in the
ED. I have spent 17 years there. I do understand. I think I
also understand the role of QA/QRM/CQI/TQM etc. I believe
your goal should be to prevent unnecessary deaths. This is
the ultimate function of any QA committee, whatever its new
name. This sort of review activity has a long and honorable
role in American medicine. For generations it was called
M&M. It has been repeatedly emphasized that modern QA
committees want
to address “systems”
issues.
The
perpetuance of “hallway medicine” in the RMH ED is a
“systems” monster of the highest order. * * *

I realize I’m not making friends by lobbying to spend more
money in the current environment. I’m all in favor of saving
money and improving medical care. As you know, I have
invested thousands of hours of my own time to develop
workable ways to do so. I am also aware that we are
spending $150 million to purchase two more hospitals. I
suspect that these two hospitals are fraught with problems or
they would not be for sale. The assumption of a huge debt
burden and
the responsibility of reforming problematic
hospitals virtually guarantee that the quality of care in our ED
will decline further. Until we expand our facility and eliminate
the practice of “hallway medicine” this nightmare in the ED is
destined to continue.

* * *

No. 03AP-981

{¶6} Dr. Shonk was a member of RMH’s CPIT, a quality assurance committee.

Mitchell also gave a copy of the Shonk letter to the following: (1) Dr. Taylor, the ED

physician on duty at the time of the incident; (2) Dr. Larry Lilly, a member of the board of

trustees; and (3) Dr. Steve Yakubov, cardiologist and chair of the department of internal

medicine. Dr. Shonk gave the letter to Suzanne DeWoody, a member of the CPIT, for

investigation. Ms. DeWoody is also the Vice-President of Grant/RMH and primary

administrator of the ED. Ms. DeWoody determined that the Shonk letter primarily dealt

with the size of the ED and did not address quality assurance issues. Therefore, Ms.

DeWoody did not turn the Shonk letter over the CPIT committee for further review. A few

days later, Mitchell wrote a second letter to Dr. Yakubov (“Yakubov letter”). This letter

addressed concerns about procedures for evaluation of patients with chest pain in the

ED. He distributed the Yakubov letter to Dr. Drstvensek, Dr. Lee Davis, Dr. Decker, Dr.

Mike Hindeman, and nurse Lee Underman.

{¶7} On November 18, 1998, a few days after the two letters were written, Mid-

Ohio held its scheduled board meeting. The Shonk and Yakubov letters were distributed

to all present. Dr. Decker testified that he had concerns with the Shonk letter. He stated

that it could expose Mid-Ohio to liability for violating patient confidentiality because

Mitchell used patient identifying information and dispersed it to individuals outside the

quality assurance chain, namely Dr. Taylor, Dr. Lilly, and Dr. Yakubov. At the end of the

board meeting, the board unanimously voted to terminate Mitchell’s position as the MEC.

The board reserved its decision as to whether Mitchell’s employment as a physician was

terminated until the next board meeting. However, on November 30, 1998, the board

decided to terminate Mitchell. During the seven years Mitchell provided services at RMH,

No. 03AP-981

he expressed his opinions regarding issues in the ED on several occasions without being

subjected to any adverse employment action.3

{¶8} Mitchell

filed a complaint against Mid-Ohio,

InPhyNet, Acute Care

Specialists, Inc., Dr. Drstvensek, Grant/RMH, and Ms. DeWoody, alleging: (1) wrongful

termination in violation of public policy as to his position of MEC as well as ED physician;

(2) violation of due process for being terminated without a hearing; (3) tortious

interference of contract; (4) civil conspiracy; (5) negligent retention; and (6) breach of

contract. The trial court did find a clear public policy articulated in Ohio’s peer review

statutes in support of Mitchell’s wrongful termination claim. However, the trial court found

that Mitchell’s own actions in violating patient confidentiality and the peer review process

eliminated the jeopardy element. Therefore, the trial court granted summary judgment on

all claims. Mitchell filed the instant appeal.

{¶9} Mitchell asserts the following assignments of error:

[1.]
IN FAILING TO
THE TRIAL COURT ERRED
RECOGNIZE DR. MITCHELL’S OBJECTIONS TO UNSAFE
EMERGENCY DEPARTMENT PROCEDURES AS A BASIS
FOR WRONGFUL TERMINATION AND IN GRANTING
SUMMARY JUDGMENT TO APPELLEES ON HIS
WRONGFUL TERMINATION CLAIM

[2.] THE TRIAL COURT ERRED IN HOLDING THAT
“EQUITABLE MAXIMS” PRECLUDE DR. MITCHELL FROM
PURSUING HIS WRONGFUL TERMINATION CLAIMS AND
THUS, IN GRANTING PARTIAL SUMMARY JUDGMENT ON
APPELLANT’S WRONGFUL TERMINATION CLAIM

[3.] THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT
GRANT/RIVERSIDE
APPELLEE
TO
METHODIST HOSPITALS ON APPELLANT’S DUE
PROCESS CLAIM

3 For example, a letter dated April 3, 1997, addressed the need for a larger ED so patients were not
serviced in the hallways. Mitchell analogized the ED to the type of medicine practiced in third world
countries. Mitchell wrote the letter to Dr. Bruce Wall, predecessor to Dr. Shonk.

No. 03AP-981

[4.] THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT ON APPELLANT’S SUMMARY JUDGMENT TO
GRANT/RIVERSIDE METHODIST HOSPITALS ON
APPELLANT’S BREACH OF CONTRACT CLAIM

[5.] THE TRIAL COURT ERRED IN DISMISSING THE
SIXTH CLAIM: CONSPIRACY

[6.] THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT TO THE INDIVIDUAL APPELLEES SUSAN
DEWOODY AND JOHN DRSTVENSEK

[7.] THE TRIAL COURT ERRED IN GRANTING SUMMARY
JUDGMENT ON THE
ISSUE OF GRANT/RIVERSIDE
METHODIST HOSPITAL’S (SIC) STATUS AS PLAINTIFF’S
EMPLOYER FOR PURPOSES OF THE MEDED
COORDINATOR POSITION

[8.] THE TRIAL COURT ERRED IN HOLDING THAT DR.
MITCHELL’S
FOURTH
CLAIM
FOR
TORTIOUS
INTERFERENCE WAS PRECLUDED BY HIS “AT-WILL”
EMPLOYMENT AND THUS IN GRANTING SUMMARY
JUDGMENT TO DEFENDANTS SUSAN DEWOODY, JOHN
DRSTVENSEK, INPHYNET HOSPITAL SERVICES, INC.,
AND GRANT/RIVERSIDE METHODIST HOSPITAL[S] ON
THAT CLAIM

{¶10} Mid-Ohio, Dr. Drstvensek, InPhyNet, and Acute Care also filed a cross-

appeal asserting the following error:

1. The trial court erred in determining that appellant satisfied
the “clarity” element of his claim for wrongful discharge in
violation of public policy.

{¶11} Grant/RMH and Ms. DeWoody have also filed a cross-appeal asserting the

following assignment of error:

1. The trial court erred in finding Mitchell’s claim for wrongful
discharge in violation of public policy to have satisfied the
“clarity” element of a public policy wrongful discharge claim.

No. 03AP-981

{¶12} Appellate review of summary judgment motions is de novo. Helton v.

Scioto Cty. Bd. Of Commrs. (1997), 123 Ohio App.3d 158, 162. “When reviewing a trial

court’s ruling on summary judgment, the court of appeals conducts an independent

review of the record and stands in the shoes of the trial court.” Mergenthal v. Star Banc

Corp. (1997), 122 Ohio App.3d 100, 103. Civ.R. 56(C) provides that summary judgment

may be granted when the moving party demonstrates the following: (1) there is no

genuine issue of material fact; (2) the moving party is entitled to judgment as a matter of

law; and (3) reasonable minds can come to but one conclusion and that conclusion is

adverse to the party against whom the motion for summary judgment is made. State

ex rel. Grady v. State Emp. Relations Bd. (1997), 78 Ohio St.3d 181, 183. In the

summary judgment context, a “material” fact is one that might affect the outcome of the

suit under the applicable substantive law. Turner v. Turner (1993), 67 Ohio St.3d 337,

340. When determining what is a “genuine issue,” the court decides if the evidence

presents a sufficient disagreement between the parties’ positions. Id.

{¶13} In Dresher, the Supreme Court of Ohio held that a party seeking summary

judgment on the ground that the nonmoving party cannot prove its case bears the initial

burden to inform the trial court of the basis for the motion and identifying the portions of

the record demonstrating an absence of a genuine issue of material fact. Dresher v. Burt

(1996), 75 Ohio St.3d 280. The moving party does not discharge its burden simply by

making a conclusory assertion that the nonmoving party has no evidence to prove its

case. Id. Rather, the moving party must specifically point to evidence of the type listed in

Civ.R. 56(C) that affirmatively demonstrates the nonmoving party has no evidence to

support its claims. Id. Further, when a motion for summary judgment has been

No. 03AP-981

supported by proper evidence, the nonmoving party may not rest on the mere allegations

of the pleading, but must set forth specific facts, by affidavit or otherwise, demonstrating

that there is a genuine triable issue. Jackson v. Alert Fire & Safety Equip., Inc. (1991),

58 Ohio St.3d 48, 52. If the nonmoving party does not demonstrate a genuine triable

issue, summary judgment shall be entered against that party. Civ.R. 56(E).

{¶14} In the first assignment of error, Mitchell argues the trial court erred in its

determination of his wrongful termination claim against all appellees. In the second

assignment of error, Mitchell asserts the trial court erred in finding that Mitchell’s own

conduct precluded him from recovering on the wrongful termination claim. These two

assignments of error are interrelated and will be discussed together.

{¶15} Generally, absent an employment contract,

the employer/employee

relationship is considered at-will. Greely v. Miami Valley Maintenance Contrs., Inc.

(1990), 49 Ohio St.3d 228. Thus, the employer may terminate the employee for any

lawful reason and the employee may leave the relationship for any reason. Id. There are

exceptions to the general rule. In Greely, the Supreme Court of Ohio held an exception to

the traditional at-will employment rule exists where an employee is terminated wrongfully

in violation of public policy. Id. at 235. Public policy is generally discerned from the

United States and Ohio Constitutions, statutes, administrative rules and regulations, and

common law. Painter v. Graley (1994), 70 Ohio St.3d 377, 384. However, the public

policy must be “of equally serious import as the violation of a statute.” Id. at 384.

{¶16} To state a claim of wrongful termination in violation of public policy, a

plaintiff must satisfy the following elements: (1) a clear public policy existed and was

manifested in the federal or state constitution, statute, administrative regulation, or

No. 03AP-981

common law; (2) terminating employees under circumstances such as those involved in

the plaintiff’s termination would jeopardize the public policy; (3) plaintiff’s dismissal was

motivated by conduct related to the public policy; and (4) the employer lacked overriding

legitimate business justification for the dismissal. Collins v. Rizkana (1995), 73 Ohio

St.3d 65, 69-70. The first two prongs are questions of law for the court while the latter

two prongs are questions for the trier of fact. Id.

{¶17} For example, in Kulch, the plaintiff was discharged after filing complaints

with the Occupational Safety and Health Administration (“OSHA”). Kulch v. Structural

Fibers, Inc. (1997), 78 Ohio St.3d 134. The plaintiff brought a claim for wrongful

discharge in violation of public policy. The court recognized the numerous statutes and

constitutional provisions that support workplace safety, in keeping with the important

objectives of OSHA. Id. The court held that retaliation against employees who filed

complaints relating to workplace safety clearly contravened the public policy of Ohio. Id.

Similarly, in Collins, supra, a discharged employee could maintain a wrongful termination

claim based on sexual harassment and discrimination. The clear public policy against

sexual harassment was expressed in statutory law and the statute’s remedies were not

available to the employee because her employer did not employ four or more persons.

Anders v. Specialty Chem. Resources, Inc. (1997), 121 Ohio App.3d 348 (stating claim

for violation of public policy in terminating employee for refusing to engage in insurance

fraud); Trader v. People Working Cooperatively, Inc. (1994), 104 Ohio App.3d 690, app.

dism. (1996), 74 Ohio St.3d 1286 (stating claim where employee was terminated for

reporting illegal drug use). Accordingly, the first issue we address is whether a clear

public policy exists to support Mitchell’s claim.

No. 03AP-981

{¶18} Mitchell argues that R.C. 2305.24, R.C. 2305.251, and R.C. 2305.252

reflect the important public policy of encouraging physicians to report substandard patient

care issues without retaliation to a quality assurance committee or a member thereof, and

as such, protects Mitchell’s actions in this case. R.C. 2305.24 provides in part:

Any information, data, reports, or records made available to a
quality assurance committee or utilization committee of a
hospital * * * are confidential and shall be used by the
committee and the committee members only in the exercise
of the proper functions of the committee. * * * A right of action
similar to that a patient may have against an attending
physician for misuse of information, data, reports, or records
arising out of the physician-patient relationship shall accrue
against a member of a quality assurance committee or
utilization committee for misuse of any information, data,
reports, or records furnished to the committee by an attending
physician. No physician, * * * shall, by reason of the
furnishing, be deemed liable in damages to any person, or be
held to answer for betrayal of a professional confidence * * *.
Information, data, or reports
to a utilization
furnished
committee of a state or local medical society shall contain no
name of any person involved therein.

* * *

{¶19} R.C. 2305.251 provides immunity to health care entities for any acts,

omissions, decisions, or other conduct within the scope of the functions of a peer review

committee. R.C. 2305.252 provides for confidentiality of peer review committee

proceedings and records. There is no question that R.C. 2305.24 protects physicians

from personal liability if he or she provides information to a quality assurance committee

in accordance with the statute. However, the case at bar is not so simple. Mitchell is

asking us to find a clear public policy that employers cannot discharge employees who

complain about patient care outside the quality assurance chain. We decline to extend

the narrow public policy exception to the employment at-will doctrine this far.

No. 03AP-981

{¶20} Mitchell stated that the Shonk letter and the Yakubov letter were quality

assurance documents. Appellees argue the Shonk and/or Yakubov letters were never a

part of the quality assurance process. Whether or not the letters were quality assurance

documents is of no relevance to resolving the question as to whether Mitchell’s actions

are protected by public policy.

{¶21} We have a situation where the physician, Mitchell, distributed the letters to a

number of different individuals. Several of those individuals were not members of the

quality assurance committee. To afford protection to Mitchell’s actions would destroy the

entire purpose behind the creation and protection of quality assurance committees and

proceedings. Any physician could document a complaint about an issue, call it a quality

assurance document, distribute it to whomever he or she pleased, and be protected from

termination even though the physician may have breached patient confidentiality,

exposed the health care entity to potential liability, or violated hospital policy. Therefore,

we find there is no clear public policy evidenced in the above-mentioned statutes or case

law to protect Mitchell in this case.

{¶22} To the extent Mitchell suggests an even broader public policy by arguing

that anyone who complains about patient care to anyone is protected from discharge, we

cannot extend the exception this far. While the cases cited by Mitchell note the

importance of patient care, they do not clearly define a public policy that would be

applicable to this case. If Mitchell’s argument were accepted, any physician or health

care worker who complained to anyone about patient care issues at any time during their

employment who is later discharged, could file an action for wrongful termination in

violation of public policy. Ohio law does not support such a sweeping interpretation of the

No. 03AP-981

public policy exception to employment at-will. If we were to hold otherwise, Ohio’s long-

standing and predominate rule that employees are terminable at-will would disappear.

{¶23} Further, Mitchell’s argument that his opposition to the stable admit policy

should be protected under this doctrine is without merit. Greeley, supra; Collins, supra.

For the reasons stated above, Ohio law does not extend the public policy exception to

protect Mitchell from discharge. Greeley, supra; Collins, supra. We are simply not willing

to extend public policy this far.4 Accordingly, Mitchell’s first and second assignments of

error are overruled and summary judgment is appropriate on Mitchell’s wrongful

termination in violation of public policy claim against appellees.5 Mid-Ohio’s and

Grant/RMH’s cross-assignment of error are also sustained.

{¶24} In the third assignment of error, the trial court erred in granting summary

judgment to appellee Grant/RMH on Mitchell’s due process claim. Mitchell argues that

upon being terminated from Mid-Ohio, he was entitled to a due process hearing based on

Grant/RMH’s by-laws. Mitchell relies on provision 12.1(a) of the by-laws:

4 Mitchell also argues that his termination violated his First Amendment protections under the Ohio and
United States Constitutions. However, these constitutional provisions do not apply to private actors.
Stephenson v. Yellow Freight Sys., Inc. (Oct. 26, 1999), Franklin App. No. 99AP-77), discretionary appeal
not allowed (2000), 88 Ohio St.3d 1432; Petrovski v. Fed. Express Corp. (N.D.Ohio 2002), 210
F.Supp.2d 943, 947 (holding plaintiff’s wrongful discharge claim in violation of public policy based on
freedom of speech is without merit “as the prohibitions contained therein apply only to state action, not the
actions of a private citizen or employer.” (Citation omitted.)

5 To the extent Mitchell argues that his own conduct should not preclude recovery on his public policy claim
based on Pytlinski v. Brocar Products, Inc. (2002), 94 Ohio St.3d 77 and/or Himmel v. Ford Motor Co.
(C.A.6, 2003), 342 F.3d 593, the argument is without merit. In Pytlinski, the Supreme Court of Ohio stated
in a footnote that the specific requirements for filing a complaint set forth in a statute need not be met so
long as the discharge is “related to the public policy.” Id. at 80, fn. 3. The case at bar is completely
distinguishable from Pytlinski. Here, the public policy identified in the statute would be defeated if
complaints were not kept confidential. Similarly, in Himmel, the plaintiff reported his employer’s illegal
activities. The plaintiff necessarily engaged in some of those activities. The Sixth Circuit held the plaintiff’s
own conduct did not defeat his wrongful termination claim as plaintiff’s conduct fell within the scope of the
policy and was necessary to further the policy manifested in the labor laws. Himmel, supra. Again, in the
case at bar, Mitchell’s actions do not further the policy manifested in the peer review and quality assurance
statutes. To the contrary, his actions defeat that policy by not following the procedures set forth in the
statutes, namely distributing both letters to individuals outside the CPIT.

No. 03AP-981

Except as otherwise provided for herein, any Practitioner
whose appointment or reappointment to the Medical staff or
advancement in Medical staff membership has been denied
or any Practitioner whose Clinical Privileges have been
curtailed, suspended, revoked or denied, or any Practitioner
who has received any adverse recommendation from the
Medical Executive Committee, Medical Staff or Governing
Body, relative to a matter of Medical Staff appointment or
Clinical Privileges (“adverse action”) will have the right to a
formal hearing by a panel of individuals or a hearing officer
appointed by the Governing Body, or its designee.

* * *

(Emphasis added.)

{¶25} We agree with the trial court that Mitchell’s due process claim against

Grant/RMH fails for the reason that it never took any action against Mitchell. Grant/RMH

did not curtail, suspend, revoke, or deny Mitchell any privileges at the hospital. The letter

of termination from Mid-Ohio sufficiently illustrates this fact. It states: “[y]our employment

as an emergency department physician at Grant/[RMH] shall continue until you are

otherwise notified.” Grant/RMH simply did not take adverse action against Mitchell. Holt

v. Good Samaritan Hosp. and Health Ctr. (1990), 69 Ohio App.3d 439; Collins v.

Associated Pathologists, Ltd. (C.A.7, 1988), 844 F.2d 473; Plummer v. Community Gen.

Hosp. of Thomasville, Inc. (2002), 155 N.C.App. 574 (the right to exercise medical

privileges is separate and distinct from the granting or revoking of those privileges and a

physician is not guaranteed employment to exercise those privileges). The Collins court

succinctly stated:

Dr. Collins also asserts that St. John’s [Hospital] wrongfully
removed or reduced his staff privileges in violation of the by-
laws of the hospital. However, the record reflects that St.
Johns has neither removed nor reduced Dr. Collins’ staff
privileges. * * * Staff privileges reflect the hospital’s decision
that a physician is qualified to practice in the facility, but do

No. 03AP-981

not in and of themselves confer employment. Employment as
a pathologist at St. John’s was determined by the legal
contract between St. John’s and APL
[the exclusive
contractor]. * * * Although without concurrent employment by
St. John’s as a pathologist these staff privileges may be of
little or no value to Dr. Collins, the fact remains that the
privileges were neither removed nor reduced. * * *

Collins, supra, at 481. (Citation omitted; emphasis added.)

The fact that Grant/RMH did not curtail, suspend, or revoke Mitchell’s privileges

defeats his due process claim based on the by-laws as well as a common law due

process claim. Accordingly, Mitchell’s third assignment of error is overruled.

{¶26} In the fourth assignment of error, Mitchell claims the trial court erred in

granting summary judgment to Grant/RMH on appellant’s breach of contract claim.

Mitchell argues Grant/RMH breached its contract with him by denying him due process

upon his termination from Mid-Ohio. He maintains that Grant/RMH promised that if he

was denied the opportunity to practice, he would have access to a grievance process to

determine if the denial was justified.

{¶27} In Munoz, the court discussed whether hospital by-laws contractually bind

the hospital. Munoz v. Flower Hosp. (1985), 30 Ohio App.3d 162. The court mentioned

cases that hold a hospital is bound by the by-laws otherwise the by-laws are

meaningless, while other cases find the hospital is not bound because there is no

consideration or mutuality of obligation between the parties. Id. (Citations omitted.) The

court concluded the “most enlightened reasoning seems to be that staff bylaws can form

a binding contract between the doctors and hospital but only where there can be found in

the bylaws an intent by both parties to be bound.” Id. at 166; Wolf v. McCullough-Hyde

Mem. Hosp., Inc. (1990), 67 Ohio App.3d 349.

No. 03AP-981

{¶28} However, we do not resolve the issue of whether the parties intended to be

bound by the by-laws. Mitchell maintains his staff privileges at Grant/RMH. As with

Mitchell’s due process claim, his breach of contract claim against Grant/RMH fails

because Grant/RMH has not taken any adverse action against him. It has not curtailed,

suspended, denied, or revoked his privileges. The hospital is under no obligation by

virtue of the by-laws to insure that Mitchell is provided work at the hospital. Khosla v.

Magruder Mem. Hosp. (June 30, 1993), Ottawa App. No. 92OT053 (whether or not

hospital by-laws constitute a contract is a non-issue where the plaintiff anesthesiologist

retained staff privileges at the hospital. “The hospital has no obligation under the bylaws

to insure that [plaintiff doctor] is provided work at the hospital.”) Thus, Mitchell’s breach of

contract claim fails. Accordingly, the fourth assignment of error is overruled.

{¶29} We now turn to Mitchell’s eighth assignment of error. Mitchell claims the

trial court erred in finding that his employment at-will status precluded recovery for

tortious interference with contract. Mitchell asserts this claim against Mid-Ohio, InPhyNet,

Acute Care, and Dr. Drstvensek. To prevail on a claim of tortious interference with

contract, Mitchell must show: (1) the existence of a contract; (2) the wrongdoer’s

knowledge of the contract; (3) the wrongdoer’s intentional procurement of the contract’s

breach; (4) lack of justification for the interference; and (5) resulting damages. Fred

Siegel Co., L.P.A. v. Arter & Hadden (1999), 85 Ohio St.3d 171, paragraph 1, syllabus.

“Tortious interference with contract requires an actor to improperly interfere with the

performance of a contract between two other persons.” Emergency Preemption, Inc. v.

Emergency Preemption Sys., Inc. (Aug. 14, 1997), Cuyahoga App. No. 71350. The trial

court held there could be no interference with contractual relations if the contract is

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terminable at-will. We agree. If an employee is at-will, tortious interference with contract

is not a viable cause of action. Emergency Preemption, Inc., supra; Hoyt, Inc. v. Gordon

& Assocs., Inc. (1995), 104 Ohio App.3d 598. In this case, Mitchell was an at-will

employee. Therefore, his claim for tortious interference with contract must fail.

{¶30} Mitchell argues on appeal that he alleged tortious interference with

employment relations in addition to or instead of tortious interference with contract. Ohio

law recognizes both torts as independent of one another. Dryden v. Cincinnati Bell Tel.

Co. (1999), 135 Ohio App.3d 394. “Tortious interference with contractual or business

relations does not require a showing of malice, and is largely an adaptation of the

Restatement of the Law * * * .” Dryden, supra, at 400. On the other hand, the tort of

wrongful interference with employment relations requires a showing of “either wanton or

malicious behavior” when the tort is asserted against an “outsider,” meaning an individual

not worthy of a qualified privilege.

Id., citing Contadino v. Tilow

(1990),

68 Ohio App.3d 463, 467. Both torts recognize the applicability of a qualified privilege.

Smith v. Ameriflora 1992, Inc. (1994), 96 Ohio App.3d 179, 187; Emergency Preemption,

Inc., supra. In order to overcome the defense of qualified privilege the claimant must

demonstrate that the interferer(s) acted with actual malice. Ameriflora, supra.6

{¶31} With respect to tortious interference with employment relations, “[t]he

general rule in Ohio is that an employee earning a living has a right to pursue such

6 We would point out that courts do not always distinguish between the two torts when an employee is
terminated and is the plaintiff. However, if tortious interference with contract or business relations is not
available because the employee is at-will and tortious interference with employment relations is available,
the distinction must be recognized as the court did in the Dryden case. Further, we find the malice or
wanton requirement necessary to ensure the employment at-will doctrine is not destroyed by employees
who are discharged and later bring an action against an outsider who did something the employee did not
like. Wilson v. Procter & Gamble (Nov. 6, 1998), Hamilton App. No. C-970778, citing Anderson v. Minter
(1972), 32 Ohio St.2d 207 (“a cause of action may be recognized against an outsider for malicious
interference, but the court cautioned that liability must be predicated on a finding of malicious conduct”).

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employment free from unwarranted interference by third persons * * * . Moreover, it has

been held that this right of noninterference extends even to an at-will employee.”

Contadino, supra, at 467. However, the right of noninterference is limited by the

applicability of a qualified privilege. Id. For example, a person in a supervisory capacity

or other position of authority over the employee cannot be held liable for interfering if it is

that person’s duty to monitor, supervise, or enforce. Id. (Holding that director of crisis

intervention did not maliciously interfere with employment even though director advocated

employee’s dismissal where director owed a duty to the program to advocate the

dismissal if it was in the program’s best interest); Emergency Preemption, supra (a

corporate officer cannot interfere with contract in the capacity as corporate officer if the

officer or person is legitimately asserting a legally protected interest); Smiddy v. Kinko’s,

Inc., Hamilton App. No. C-020222, 2003-Ohio-446; Hall v. United Labs,

Inc.

(N.D.Ohio 1998), 31 F.Supp.2d 1039 (doctor and laboratory hired by the employer to

analyze employee drug tests were privileged to intervene in employment relationship and

not liable for tortious interference).

{¶32} Mitchell titled the pertinent cause of action tortious interference with contract

and alleged the following: “Defendants Grant/[RMH], DeWoody, Shonk and/or IMMI

tortiously interfered with Plaintiff’s agreement with Mid-Ohio, causing Mid-Ohio to sever its

relationship with him, and to breach its agreement to convey upon Plaintiff and (sic)

ownership interest.” (Dec. 27, 2000, Amended Complaint, at ¶33.) We find these

allegations insufficient to state a claim for tortious interference with employment relations.

As stated above, this tort requires a showing of malicious interference or wanton

behavior. Robinson v. Springfield Local School Dist. Bd. of Edn., Summit App.

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No. 20606, 2002-Ohio-1382 (an employee’s interference may be justified and not

actionable when it comes within the scope of one’s duties and is not malicious);

Contandino, supra. Accordingly, Mitchell’s claim for tortious interference with contractual

or business relations and/or tortious interference with employment relations fails. The

eighth assignment of error is overruled.

{¶33} In the fifth assignment of error, Mitchell contends the trial court erred in

granting summary judgment on his civil conspiracy claim. To state a claim for civil

conspiracy, Mitchell must establish four elements. Those elements include: (1) a

malicious combination; (2) of two or more persons; (3) resulting in injury to person or

property; and (4) the existence of an unlawful act independent of the actual conspiracy.

Davidson v. BP Am., Inc. (1997), 125 Ohio App.3d 643. A civil action for conspiracy

cannot be maintained unless something is done which without the conspiracy, would give

rise

to a cause of action.

Khosla, supra, quoting Minarik v. Nagy (1963),

8 Ohio App.2d 194, 195. In other words, there must be a viable claim distinct from the

conspiracy in order for the conspiracy claim to survive. In this case, there are no

surviving claims. Therefore, Mitchell’s fifth assignment of error is overruled.

{¶34} In the sixth assignment of error, Mitchell claims the trial court erred in

granting

summary

judgment

to Ms. DeWoody

and Dr. Drstvensek.

For all of the reasons stated above, Mitchell asserts no viable claims. Accordingly,

Mitchell’s sixth assignment of error is overruled.

{¶35} In the seventh assignment of error, Mitchell argues the trial court erred in

granting summary judgment on the issue of Grant/RMH’s status as plaintiff’s employer for

purposes of the MEC position. Because Mitchell was not employed by Grant/RMH, he

No. 03AP-981

cannot succeed on any of his claims against any appellees, and it is unnecessary to

address this issue. Accordingly, Mitchell’s seventh assignment of error is overruled.

{¶36} Based on the foregoing, the trial court properly granted summary judgment

to Mid-Ohio, InPhyNet, Acute Care, Grant/RMH, Ms. DeWoody, and Dr. Drstvensek.

There is no clear public policy to protect Mitchell from discharge in this case. Mitchell

destroyed the purpose of the statutes he seeks to use as a shield by deciding to take it

upon himself to disperse the so-called quality assurance letters to individuals outside the

quality assurance chain.

{¶37} Grant/RMH owed Mitchell no due process. Moreover, for the same reason,

Grant/RMH did not breach its contract with Mitchell by virtue of any violation of the by-

laws as it never sought to curtail, suspend, or revoke Mitchell’s privileges. Mitchell’s claim

for tortious interference with contract fails since Mitchell was an employee at-will. Further,

Mitchell did not sufficiently plead a claim for tortious interference with employment

relations as he failed to plead malicious or wanton behavior. Mitchell’s civil conspiracy

claim fails because no underlying tort remains viable. Finally, we do not reach the issue

of whether Grant/RMH was Mitchell’s employer for purposes of the MEC position.

{¶38} Based on the foregoing, Mitchell’s first, second, third, fourth, fifth, sixth,

seventh, and eighth assignments of error are overruled. The sole error on cross-appeal is

sustained. Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

BRYANT and KLATT, JJ., concur.