Rizvi v. St. Elizabeth Hosp. Med. Ctr.,

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

HIL RIZVI, M.D., )

) CASE NO. 00 CA 194

PLAINTIFF-APPELLANT, )

)

– VS – ) O P I N I O N

)

ST. ELIZABETH HOSPITAL )

MEDICAL CENTER, et al., )

)

DEFENDANTS-APPELLEES. )

CHARACTER OF PROCEEDINGS: Civil Appeal from Common Pleas

Court, Case No. 97CV1910.

JUDGMENT: Affirmed in part; Reversed in

part and Remanded.

APPEARANCES:

For Plaintiff-Appellant: Attorney Leonard Stauffenger

Attorney Michele Morris

159 South Main Street, 6^th Floor

Akron, Ohio 44308

For Defendants-Appellees: Attorney Ned Gold, Jr.

Attorney Lance Morrison

26 Market Street, Suite 1200

Youngstown, Ohio 44503

JUDGES:

Hon. Joseph J. Vukovich

Hon. Gene Donofrio

Hon. Cheryl L. Waite

Dated: September 24, 2001

VUKOVICH, P.J.

Plaintiff-appellant Hil Rizvi, M.D., appeals the decision of
the Mahoning County Common Pleas Court granting defendants-appellees St. Elizabeth Hospital Medical Center, et al’s, motion
for summary judgment on Dr. Rizvi’s multiple claims. For the
following reasons, the judgment of the trial court is affirmed in
part, reversed in part and this cause is remanded.

STATEMENT OF FACTS

On October 2, 1995, Dr. Rizvi signed a contract with St.
Elizabeth to be employed as a resident. His contract was not
renewed on December 31, 1995. In the early months of 1996, Dr.
Rizvi contacted Western Reserve Care System Pediatric Emergency
Center (WRCS) to get experience in pediatric care. Dr. Rizvi
informed WRCS that he was a resident at St. Elizabeth’s. Rizvi v.
State Medical Board of Ohio (July 25, 2000), Franklin App. No.
99AP-1136, unreported. An agent of St. Elizabeth’s reported the
misrepresentation to the State Medical Board of Ohio (Board). The
Board proposed denial of Dr. Rizvi’s application for a medical
license based upon four alleged violations. Id. The only charge
relevant to this appeal is based on the misrepresentation made by
Dr. Rizvi to WRCS. The Board did not grant Dr. Rizvi licensure
based on four violations. Id. The Franklin County Common Pleas
Court affirmed the order of the Board. Id. The Tenth District
Court of Appeals ruled that the common pleas court did not abuse
its discretion in affirming the decision of the Board. Id.
However, the tenth district reversed the decision to deny
licensure based on the Board’s noncompliance with procedural time
restrictions. Id.

Dr. Rizvi filed suit against appellees in Mahoning County
Common Pleas Court based on the report to the Board, a report to
the American Board of Internal Medicine (ABIM) and incidents that
occurred while Dr. Rizvi worked for St. Elizabeth. A timely
appeal followed the trial court’s order granting summary judgment
in favor of St. Elizabeth.

STANDARD OF REVIEW

An appellate court reviews a trial court’s decision to grant
summary judgment de novo. Grafton v. Ohio Edison Co. (1996), 77
Ohio St.3d 102. Summary judgment is properly granted when: 1) no
genuine issue as to any material fact exits; 2) the moving party
is entitled to judgment as a matter of law; and 3) reasonable
minds can only come to one conclusion and that conclusion is
adverse to the party against whom the motion for summary judgment
is made. Harless v. Willis Day Warehousing Co. (1976), 54 Ohio
St.2d 64, 66. The evidence must be viewed in the light most
favorable to the non moving party. Id.

Dr. Rizvi raises three assignments of error. Since the
second assignment of error could be dispositive of all other
issues, it will be addressed first.

Dr. Rizvi’s second assignment of error contends:

“THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT TO THE APPELLEES ON THE BASIS OF
CLAIM AND ISSUE PRECLUSION BECAUSE NEITHER
APPLY TO THE INSTANT CASE.”

Dr. Rizvi claims the trial court erred in deciding all of his
claims were precluded by the decision of the Board. He argues
that both issue and claim preclusion are not applicable in this
situation. We will address these arguments separately, first
dealing with claim preclusion.

The doctrine of claim preclusion generally bars relitigation
of a cause of action. Claim preclusion holds that “a valid, final
judgment rendered upon the merits bars all subsequent actions
based upon any claim arising out of the transaction or occurrence
that was the subject matter of the previous action.” Ft. Frye
Teachers Assn., OEA/NEA v. State Emp. Relations Bd. (1998), 81
Ohio St.3d 392, 395.

Here, the elements of claim preclusion are not satisfied.
Dr. Rizvi’s misrepresentation to WRCS occurred after the alleged
breach of contract. Therefore, the claim does not arise from the
same transaction or occurrence. Dr. Rizvi could not have raised
the breach of contract claim before the Board. Nor could he have
raised his defamation or interference with business relationship
claims because of the Board’s lack of jurisdiction to hear those
issues. The Board only has jurisdiction to refuse to grant a
certificate to a person if the Board finds that person has
committed fraud, misrepresentation or deception in applying for
any license issued by the Board. R.C. 4731.22(A).

While the trial court erred in granting summary judgment
based on claim preclusion, the issue of the falsity of the
application to the Board has already been litigated. As such,
issue preclusion bars relitigation of the issue of the
misrepresentation to WRCS. There are three elements to the
applicability of issue preclusion. It applies when “the fact or
issue (1) was actually and directly litigated in the prior action,
(2) was passed upon and determined by a court of competent
jurisdiction, and (3) when the party against whom collateral
estoppel is asserted was a party in privity with a party to the
prior action.” Thompson v. Wing (1994), 70 Ohio St.3d 176, 183.

St. Elizabeth is claiming that Dr. Rizvi is estopped from
claiming that St. Elizabeth’s defamed him by stating that he
misrepresented himself to WRCS. The Board found that Dr. Rizvi
falsely represented himself as a resident of St. Elizabeth’s based
on the testimony of four witnesses. Rizvi v. State Med. Bd. of
Ohio (2000), 138 Ohio App.3d 682. Therefore, element one is met.
Moreover, since Dr. Rizvi was a party in the prior suit by the
Board, element three is also met.

Element two involves the question of whether the
determination of the Board is considered a judgment from a court
of competent jurisdiction. This court finds that it is. Issue
preclusion applies to administrative proceedings of a judicial
nature in which the parties have had an ample opportunity to
litigate the contested issue(s). Superior’s Brand v. Lindley
(1980), 62 Ohio St.2d 133, syllabus. In order for an
administrative proceeding to be judicial or quasi-judicial, there
must be notice, a hearing, and an opportunity to introduce
evidence. M.J. Kelley Co. v. Cleveland (1972), 32 Ohio St.2d 150,
paragraph two of the syllabus. R.C. 4731.22(C) requires
disciplinary actions taken by the Board to comply with Chapter 119
of the Revised Code. R.C. 119.06 requires administrative agencies
to give an opportunity for a hearing, notice of the hearing date
if the hearing is requested, an opportunity to examine witnesses
and an opportunity to present evidence. Therefore, element two of
issue preclusion is met and Dr. Rizvi is precluded from asserting
a defamation case concerning St. Elizabeth’s statement that he
misrepresented himself to WRCS.

The Board’s finding, however, does not preclude Dr. Rizvi’s
other defamation actions. Nor does the Board’s findings have a
preclusive effect on the breach of contract claim or the
intentional interference with business relations claim. However,
it does not necessarily follow that the trial court did not
properly grant summary judgment to those issues. Accordingly, we
will now examine Dr. Rizvi’s remaining assignments of error.

Dr. Rizvi’s first assignment of error contends:

“THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT TO THE APPELLEES REGARDING
APPELLANT’S CLAIMS OF DEFAMATION AND
INTENTIONAL INTERFERENCE WITH PRESENT AND
FUTURE BUSINESS RELATIONSHIP BECAUSE MATERIAL
ISSUES OF FACT EXIST IN THE RECORD THEREBY
ENTITLING HIM TO A JURY TRIAL.”

Dr. Rizvi argues that issues of fact remain regarding his
defamation and interference with business relation claims. This
assertion is based on two separate occurrences. First, a report to
ABIM indicated Dr. Rizvi’s morals and ethics were unsatisfactory.
This occurred after the Board found that Dr. Rizvi misrepresented
himself as a resident of St. Elizabeth to WRCS. Second, Dr. Kim,
a teaching physician, allegedly called Rizvi “crazy.”

Both sides correctly identify that a privilege exists under
R.C. 2305.25, which protects professional review organizations.
In order for Dr. Rizvi to prevail on a claim of defamation where
a privilege exists, he must demonstrate actual malice. Jacobs v.
Frank (1991), 60 Ohio St.3d 111, paragraph two of the syllabus.
The same actual malice standard that applies to defamation also
applies to tortious interference with business relationships.
A&B-Abell Elevator Co. v. Columbus/Central Ohio Bldg. & Contr.
Trades Council (1995), 73 Ohio St.3d 1, 14. Actual malice is
defined as acting with knowledge that the statements are false or
acting with reckless disregard as to their truth or falsity.
Jacobs, 60 Ohio St.3d at 115. Actual malice implies more than
evidence of ill will, spite or ulterior motive. Id.

In the case sub judice, Dr. Wilkins wrote a recommendation
letter for Dr. Rizvi to the Utah Medical Board. A recommendation
alone is not enough to create a genuine issue of fact regarding
actual malice. Id. Dr. Rizvi also asserts Dr. Wilkins’ testimony
before the Board contradicts the information conveyed to ABIM. In
Dr. Rizvi’s view, this alleged contradiction indicated the
existence of actual malice. The report to ABIM indicated that Dr.
Rizvi was unsatisfactory in terms of ethics and honesty. ABIM’s
report included fraudulent activity as a deficiency in moral and
ethical behavior warranting an unsatisfactory response. (Wilkins
Depo.) As such, a report supported by a finding of an
administrative board does not reach the point of actual malice.
The trial court was correct that the report from Dr. Wilkins was
not defamatory and did not interfere with business relations.

The trial court was also correct in granting summary judgment
as to the statements made by Dr. Kim that Dr. Rizvi was “crazy.”
A statement that someone is “crazy” is an expression of opinion
that generally does not subject one to liability. Scott v. News
Herald (1986), 25 Ohio St.3d 243, 250. We have previously stated,
“people frequently use adjectives such as ‘stupid’ or ‘crazy’ to
express their feelings or opinions about an individual.” Paige v.
Youngstown Bd. of Ed. (Dec. 23, 1994), Mahoning App. No. 93CA212,
unreported. The statements made by Dr. Kim were an expression of
opinion and not subject to liability.

Dr. Rizvi’s third assignment of error contends:

“THE TRIAL COURT ERRED BY GRANTING SUMMARY
JUDGMENT TO THE APPELLEES REGARDING
APPELLANT’S CLAIM OF BREACH OF CONTRACT
BECAUSE MATERIAL ISSUES OF FACT EXIST IN THE
RECORD THEREBY ENTITLING HIM TO A JURY
TRIAL.”

Dr. Rizvi argues that St. Elizabeth breached an oral contract
that preceded a written resident appointment contract. Dr. Rizvi
also alleges that the written contract was breached.

The construction of a written contract is a matter of law.
Latina v. Woodpath Dev. Co. (1991), 57 Ohio St.3d 212, 214. The
parol evidence rule prevents a party to a written contract from
claiming an oral contract that preceded the written contract
alters the obligations of the written contract. Ed Schory &
Sons, Inc. v. Soc. Natl. Bank (1996), 75 Ohio St.3d 433, 440.

While Dr. Rizvi claims an oral contact for one year of
residency was created with St. Elizabeth, the written contract
does not echo that assertion. The written contract began on
September 1, 1995 and ended December 31, 1995. The contract
provided for St. Elizabeth to pay Dr. Rizvi $34,500 in 26 bi-weekly installments, however the contract was prorated annually.
This indicates that Dr. Rizvi would only receive payments from
September 1, 1995 to December 31, 1995. The trial court’s
decision to grant St. Elizabeth’s motion for summary judgment
concerning the breach of the resident’s contract is sustained.

However, the trial court was incorrect in determining summary
judgment was proper as to the resident handbook. Dr. Rizvi argues
that several procedural safeguards were not followed by St.
Elizabeth when his contract was not renewed. The main contention
is that he was not able to present witnesses at the “due process”
appeal panel.

The handbook specifically provides for procedural safeguards
in the “non-recontract decision” which includes allowing the
resident to present witnesses. (Handbook 16, 18). St. Elizabeth
contends that Dr. Rizvi could have presented witnesses in
accordance with the handbook and he was never told differently.
St. Elizabeth suggests that Dr. Rizvi could have called Dr.
Scoccia to testify on his behalf. Dr. Scoccia had a favorable
opinion of Dr. Rizvi and never witnessed Dr. Rizvi’s
“interpersonal problems.” (Scoccia Depo. at 13, 33-36). However,
Dr. Scoccia was never asked to testify on behalf of Dr. Rizvi nor
was he told that he could not testify on behalf of Dr. Rizvi.
(Scoccia Depo. at 14, 19). Dr. Rizvi combats this argument by
attaching an affidavit to his motion in opposition of summary
judgment and citing to his deposition that he was told by Dr.
Kennedy that he was not permitted to call any witnesses.

The movant has the initial burden of informing the trial
court of the basis for its summary judgment motion by identifying
supporting evidence. Dresher v. Burt (1996), 75 Ohio St.3d 280,
293. Once the burden is met, the burden shifts to the nonmovant
to set forth specific facts and supporting evidence showing that
there is a genuine issue as to a material fact. Id. Dr. Rizvi
has met his burden and a genuine issue as to material fact does
exist as to whether the procedures in the handbook were followed.
The trial court was incorrect in granting summary judgment as to
the handbook.

For the foregoing reasons, the order granting summary
judgment for St. Elizabeth’s as to the defamation and intentional
interference with business relations is affirmed. The summary
judgment order for the resident contract is also affirmed. The
order granting summary judgment on the issue of the resident
handbook is hereby reversed and this cause is remanded for further
proceedings according to law and consistent with this court’s
opinion.

Donofrio, J., concurs.

Waite, J., concurs.