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finding further investigation should have been performed before summary suspension regarding the supposed negligent care over numerous patients
Summary of this case from Johnson v. SpohnOpinion
CIVIL ACTION NO. 3:00-CV-1007-P
September 30, 2003
MEMORANDUM OPINION AND ORDER
Now before the Court are the following:
1. Defendants' Motion for Summary Judgment, with brief in support and appendix, filed May 15, 2002;
2. Plaintiff's Response to Defendants' Motion for Summary Judgment, with brief in support and appendix, filed June 11, 2002;
3. Defendants' Reply to Plaintiffs Response to Defendants' Motion for Summary Judgment and Brief in Support, filed June 26, 2002;
4. Defendants' Objections to Plaintiff's Summary Judgment Evidence, filed June 26, 2002 and December 5, 2002;
5. Plaintiff s Motion for Leave to Supplement Response to Defendants' Motion for Summary Judgment and to Take Additional Depositions and Brief in Support, filed June 11, 2002;
6. Defendants' Response to Plaintiff's Motion for Leave to Supplement Response to Defendants' Motion for Summary Judgment and to Take Additional Depositions, Motion to Strike, Motion for Protective Order and Brief in Support, filed June 18, 2002;
7. Defendants' Response to Plaintiff's Motion for Leave to Supplement Response to Defendants' Motion for Summary Judgment and to Take Additional Depositions, Motion to Strike, Motion for Protective Order and Brief in Support, filed June 19, 2002;
8. Plaintiff's Reply to Defendants' Response to Motion for Leave to Supplement Response to Defendants' Motion for Summary Judgment and to Take Additional Depositions and Brief in Support, with appendix, filed July 3, 2002;
9. Plaintiff s Response to Defendants' Motion to Strike and for Protective Order and Brief in Support, filed July 8, 2002;
10. Defendants' Motion to Limit the Number of Experts Designated on the Same or Similar Topic and Brief in Support, filed June 17, 2002;
11. Plaintiff's Response to Defendants' Motion to Limit the Number of Experts Designated on the Same or Similar Topic, and Brief in Support, filed June 28, 2002;
12. Defendants' Motion to Quash and for Protective Order Regarding Plaintiff's Notice of Intention to Take Oral Deposition of Dr. Morton Kern and Brief in Support Thereof, filed June 19, 2002;
13. Plaintiff's Response to Defendants' Motion to Quash and for Protective Order Regarding Plaintiff's Notice of Intention to Take Oral Deposition of Dr. Morton Kern and Brief in Support, filed June 28, 2002;
14. Defendants' Reply to Plaintiff s Response to Defendants' Motion to Limit the Number of Experts Designated on the Same or Similar Topic and Defendants' Reply to Plaintiff's Response to Defendants' Motion to Quash and for Protective Order and Brief in Support, filed July 2, 2002.
15. Plaintiff's Supplemental Response to Defendants' Motion for Summary Judgment filed on November 20, 2002;
16. Defendants' reply to Supplemental Response filed on December 5, 2002, and;
17. Plaintiff's Motion to Amend Complaint filed on July 11, 2002;
18. Defendants' response to plaintiff's Motion to Amend Complaint filed on July 31, 2002;
19. Plaintiff's reply to defendant's response to plaintiff's Motion to Amend Complaint filed on August 15, 2002.
The Court notes that Defendants' Response and Motion to Strike and for Protective Order is a duplicate of Defendants' previous filing on June 18, 2002, listed above as item number 6. As such, the Court DENIES this motion as MOOT.
After a thorough review of the evidence, the pleadings, the parties' briefs, and the applicable law, for the reasons set forth below, the Court is of the opinion that (1) Defendant's Motion for Summary Judgment should be GRANTED in part, and DENIED in part; (2) Defendants' Objections to Plaintiff's Summary Judgment Evidence (Docket entries nos. 171 and 232) should be DENIED as MOOT, except where noted otherwise; (3) Plaintiff's Motion for Leave to Supplement Response and to Take Additional Depositions (Docket entry no. 147) should be DENIED; (4) Defendants' Motion to Strike and for Protective Order (Docket entries nos. 164 and 166) should be DENIED; (5) Defendants' Motion to Limit the Number of Experts Designated on the Same or Similar Topic (Docket entry no. 163) should be DENIED; (6) Defendants' Motion to Quash and for Protective Order Regarding Dr. Morton Kern (Docket entry no. 165) should be DENIED as MOOT; and (7) Plaintiff's Motion to Amend Complaint (Docket entry no. 198) is GRANTED.
INTRODUCTION
Plaintiff Lawrence R. Poliner, M.D., ("Dr. Poliner") filed this suit before the Court against Texas Health Systems d/b/a Presbyterian Hospital of Dallas (hereinafter "Hospital" or "PHD"), and Doctors James Knochel, Charles Harris, Anthony Das, Charles Levin, David Musselman, John Harper, Robert Brockie, Jorge Cherif, Steven Meyer, and Martin Berk (collectively "Defendants"), for claims arising out of a peer review which resulted in a suspension of Plaintiff s cardiac cath lab and echocardiography privileges at the Hospital for part of 1998. Specifically, Dr. Poliner alleges that the Defendants, by participating in the suspension of his privileges: (1) entered into a combination and conspiracy in violation of Sections 1 and 2 of the Sherman Act and Section 4 of the Clayton Act (all Defendants); (2) engaged in an unlawful combination and conspiracy in violation of the Texas Free Enterprise and Anti-Trust Act of 1983 (all Defendants); (3) breached his contractual due process rights created under the Hospital's Bylaws (Hospital only); (4) caused business disparagement, slander and libel (all Defendants); (5) caused tortious interference with business (all Defendants); (6) caused tortious interference with prospective advantage (all Defendants); (7) violated the Deceptive Trade Practices Act (all Defendants); and (8) caused intentional infliction of mental anguish and emotional distress (all Defendants). See generally Third Am. Compl. In his remaining counts, Plaintiff's other requested relief includes: (9) an application for temporary restraining order, temporary injunction and permanent injunction (Hospital only); (10) a request for declaratory relief that Defendants' actions are not entitled to immunity under either the Health Care Quality Improvement Act ("HCQIA") or the Texas Medical Practice Act (all Defendants); and (11) a request for declaratory relief that the HCQIA and the Texas Medical Practice Act are unconstitutional as enacted. See Id.
Meanwhile, Defendants have moved for summary judgment on each count on the grounds that: (a) Texas law does not recognize a cause of action for suspension of hospital privileges; (b) neither the Texas Medical Practice Act, nor HCQIA creates a private cause of action for temporary suspension of hospital privileges; (c) the HCQIA and the Texas Peer Review statutes immunize the peer review activity of Defendants from liability; (d) Plaintiff's antitrust allegations, even if taken as true, (i) preclude a finding of an unreasonable restraint of trade within the ambit of the antitrust laws, (ii) are barred by the intraenterprise immunity doctrine, (iii) there is no effect on interstate commerce as a matter of law, and (iv) Presbyterian does not possess the requisite market power within the relevant market to give rise to liability; (e) there is no evidence of any contract between Plaintiff and Defendants; (f) Plaintiff can produce no evidence of any prospective contracts between Plaintiff and third parties that were affected by the alleged interference; (g) Plaintiff's business disparagement, slander and libel claims are barred by the one-year statute of limitations and are based on statements protected by privilege; (h) Defendants are entitled to summary judgment on Plaintiff's claims for intentional infliction of mental anguish and emotional distress; (i) Defendants are entitled to summary judgment on Plaintiff's claims for alleged violation of Texas Deceptive Trade Practices Act; (j) Plaintiff's request for injunctive relief fails as a matter of law due to the existence of an adequate remedy at law; and (k) Plaintiff's request for declaratory judgment fails to plead a complaint that is remediable by declaratory judgment, and it merely encompasses previously pleaded claims in order to create a basis for an award of attorney's fees. See generally Defs.' Mot. Summ. J. at 3-4. Each of these arguments will be considered in turn.
BACKGROUND
Dr. Poliner received his medical degree from Cornell University School of Medicine in 1969, and completed his residency in Internal Medicine at the University of Colorado in 1972. He became board certified in internal medicine in 1972 and in cardiovascular diseases in 1977. Dr. Poliner first applied for privileges at PHD in May 1996. He was granted temporary privileges in June 1996, and formally appointed to the hospital staff in January 1997. The first year of Dr. Poliner's appointment to the medical staff at PHD was provisional, and in July 1997, Dr. Poliner applied for reappointment to the medical staff. He was granted reappointment at PHD in October 1997.
On September 29, 1997, a nurse in the Cardiac Catheterization Lab ("Cath Lab") filled out a Committee Event Report Form ("CERF") on Dr. Poliner with respect to patient no. 18. This patient died following a procedure on the patient by Dr. Poliner in the cam lab. The CERF was referred to the hospital's Clinical Risk Review Committee ("CRRC"). On October 29, 1997, another nurse in the cath lab filed a CERF on Dr. Poliner with respect to patient no. 9. Patient no. 9 suffered a stroke following a cath lab procedure by Dr. Poliner. The nurse's report indicated a concern that the patient developed chest pain and signs of a stroke after the cath lab procedure. Although he was informed of the patient's symptoms, Dr. Poliner did not go to see the patient until the following day. This report was also referred to the CRRC. On December 18, 1997, a nurse in the cath lab filled out a CERF on Dr. Poliner with respect to patient no. 3. The CERF concerned Dr. Poliner's alleged use of a contaminated sheath and was also referred to the CRRC. On January 12, 1998, the CRRC took up discussion of the referrals concerning patients nos. 3 and 18. Among the functions of the CRRC is to refer identified issues of patient care concerns to the appropriate department or committee. Following review of the cases involving patients nos. 3 and 18, the CRRC decided to refer both cases to the hospital's Internal Medicine Department for further review. The issues the CRRC identified with respect to patient no. 18 included whether the patient met the criteria for the procedure performed by Dr. Poliner, "evaluation of the cardiologist's procedural technique", and "evaluation of practitioner trends particularly with complications during interventional cardiac procedures." In the Internal Medicine Department, review of the cases was assigned to the Internal Medicine Advisory Committee ("IMAC"). IMAC was a PHD committee with responsibility for reviewing cases where quality of patient care concerns were raised involving doctors in the Internal Medicine Department. Cardiology was part of the Internal Medicine Department at PHD. The CERF report concerning patient no. 9 was taken up by the CRRC on April 13, 1998, and the CRRC subsequently decided to refer that case to the IMAC for further review. Issues identified by the CRRC with respect to patient no. 9 again included "evaluation of practitioner trends particularly complications with or following interventional cardiac procedures" and "evaluation of the overall medical management of the patient." IMAC review of the cases involving patients nos. 3, 9, and 18 was still pending when a case involving patient no. 36 was brought to the attention of Dr. John Harper by Dr. Charles Levin on May 13, 1998. Dr. Levin was director of the cath lab on May 12, 1998, and part of his duties involved occasional review of emergency cases. Dr. Poliner had performed an emergency angioplasty on patient no. 36 on May 12, and Dr. Levin reviewed the film of the procedure. Upon review of the film, Dr. Levin concluded that Dr. Poliner performed the angioplasty on the wrong artery and missed a totally occluded left anterior descending coronary artery. Dr. Levin considered this error potentially life threatening to the patient. Dr. Levin informed Dr. Harper, then Chief of Cardiology, on May 13, 1998 of his findings with respect to patient no. 36. Dr. Knochel, Chairman of the Department of Internal Medicine, was also informed about patient no. 36 on May 13, 1998. Dr. Knochel testified that in addition to the missed occluded artery, he had also received complaints from nurses who were concerned that Dr. Poliner had not paid adequate attention to the needs of patient no. 36 once the patient had been transferred to the floor from the cath lab. In light of the events concerning patient no. 36 and the other reports concerning Dr. Poliner which were then under review, Dr. Knochel spoke to Mark Merrill, President of PHD, Bruce Bougeno, Vice-President of Medical Staff Affairs, and George Pearson, in-house counsel for PHD. Dr. Knochel asked plaintiff to accept abeyance of all procedures in the cath lab until an ad hoc committee appointed by Knochel could review plaintiff's cath lab cases. Drs. Levin and Harper were present at the meeting between Knochel and plaintiff. According to plaintiff, he was given an abeyance letter after 2:00 p.m. on May 14, 1998 and told to sign and return it by 5:00 p.m. that day or his privileges would be immediately suspended. Plaintiff alleges he was not told about patient no. 36, was not given an opportunity to defend himself against the accusations, and was not told which of his patients were going to be reviewed by the ad hoc committee. Plaintiff was told not to consult an attorney before deciding whether to sign the abeyance letter. Plaintiff signed and returned the abeyance letter agreeing to an abeyance. The abeyance of plaintiff s cath lab privileges did not extend to plaintiff's admission and consultation privileges at the hospital. Dr. Knochel then appointed six doctors, all cardiologists at PHD, to the ad hoc committee ("AHC"): Dr. Robert Brockie, Dr. Jorge Cheirif, Dr. Anthony Das, Dr. Charles Harris, Dr. Steven Meyer, and Dr. William Reardon. All members of the ACH except Dr. Reardon are named defendants in this suit. The AHC met on May 20, 1998 and reviewed forty-four (44) of plaintiff s cases. All but two of the cases reviewed by the AHC were selected by the medical staff office at PHD or selected at random. Two of the cases selected for review by the AHC were selected because of concerns which had been raised regarding those patients. After reviewing the cases, the AHC concluded that substandard care was rendered in twenty-nine (29) of the cases. The IMAC then met on May 27, 1998 to consider the report of the AHC. The members of the IMAC were Dr. David Musselman, Dr. Steven Rinner, Dr. Lyle Kaliser, and Dr. William Harvey with Dr. Knochel serving as chairman. Dr. Musselman was the only cardiologist on the committee, and is the only member of the IMAC named by Dr. Poliner as a defendant in this case. The EVIAC recommended that additional reviews of echocardiograms be performed and that an outside reviewer be asked to review the cases. The IMAC further recommended extending the abeyance for two weeks to allow time for the echocadiogram reviews and for the outside review. By letter of May 29, 1998, plaintiff was asked, and he agreed, to extend the abeyance until June 12, 1998. Defendants assert that an outside reviewer could not be found who could perform the necessary reviews in time for the hearing. On June 8, 1998, Dr. Knochel sent plaintiff a letter advising him of an JJVIAC meeting on June 11, 1998 as part of the peer review process. The meeting was scheduled from 8:00 a.m. to 9:00 a.m. Plaintiff was provided a list of patients whose cases had been reviewed and informed that the records pertaining to those cases would be made available for plaintiff's review. On June 10, 1998, plaintiff sent Dr. Knochel a letter requesting a postponement of the IMAC hearing until June 12 or until the afternoon of June 11. Dr. Poliner stated he needed more time to review all of the material necessary. By letter of June 10, 1998, Dr. Knochel refused Dr. Poliner's request for a delay. The IMAC meeting proceeded as scheduled, and Dr. Poliner was given one hour to present his response to the concerns raised about his patient care. On June 12, 1998, the IMAC voted unanimously to recommend suspension of Dr. Poliner's privileges and identified the following specific concerns: (1) poor clinical judgment; (2) inadequate skills, including angiocardiography and echocardiography; (3) unsatisfactory documentation of medical records; and (4) substandard patient care. After obtaining the recommendations of the IMAC, Dr. Knochel summarily suspended Dr. Poliner's cath lab and echocardiography privileges and informed Dr. Poliner of his decision by letter dated June 12, 1998. Dr. Knochel's letter further advised Dr. Poliner that the suspension did not extend to admission and consultation privileges or to any privilege not performed in the Cardiac Cath Lab or echocardiograms at PHD. Dr. Poliner was also advised that he was entitled to an expedited hearing concerning his suspension in accordance with PHD's Medical Staff By-Laws. On July 10, 1998, Dr. Poliner wrote Mark Merrill, President of PHD, and requested a hearing concerning the suspension of his privileges. The letter did not request an expedited hearing. Mr. Merrill informed Dr. Poliner by letter of August 14, 1998, that a hearing before a Hearing Committee of PHD's Medical Staff was scheduled for September 14, 1998 at 6:00 p.m. The letter also identified the five members of the Hearing Committee. On August 19, 1998, plaintiff's counsel requested a continuance of the hearing due to a scheduling conflict of his co-counsel. By letter of October 5, 1998, Mr. Merrill informed Dr. Poliner that the hearing was continued until November 3, 1998 at 6:00 p.m. and on November 4, 1998. Dr. Poliner objected generally that the Hearing Committee did not include any cardiologists but did not object to any of the individual members of the committee. Dr. Poliner also acknowledges that he was not in direct competition with any of the members of the Hearing Committee. A hearing was held on November 3, 4, and 5, 1998. On November 9, 1998, the Hearing Committee issued its report. The Hearing Committee recommended unanimously that Dr. Poliner's privileges should be restored with conditions, and found unanimously that the summary suspension of Dr. Poliner's privileges was justified based on the evidence available at the time. On November 18, 1998, the hospital's Medical Board met and accepted the recommendation of the Hearing Committee. Dr. Poliner was informed of the Medical Board's decision by letter of November 20, 1998. By letter of January 15, 1999, Dr. Poliner advised Mr. Merrill that he wished to appeal to the hospital's Committee on Professional Affairs ("COPA") the summary suspension of his privileges on June 12, 1998. Dr. Poliner expressed concern that, although his privileges had been restored, the presence of the summary suspension on his record would continue to be harmful to him. Dr. Poliner was advised that, pursuant to the hospital's by-laws, his appeal was limited to a determination of whether Dr. Poliner had been substantially provided with the procedural due process provided in the by-laws. COPA met on March 2, 1999 to consider Dr. Poliner's appeal. COPA ultimately found that Dr. Poliner had been afforded procedural due process during the peer review process and that it did not have the authority to set aside the summary suspension of privileges. On June 7, 1999, the hospital's Board of Trustees upheld the decision of COPA. None of the individual defendants in this suit were on the hearing committee or COPA. Plaintiff then filed this suit on May 11, 2000.
DISCUSSION
I. Summary Judgment Standard
Summary judgment shall be rendered when the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All evidence and the reasonable inferences to be drawn therefrom must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The moving party bears the burden of informing the district court of the basis for its belief that there is an absence of a genuine issue for trial, and of identifying those portions of the record that demonstrate such an absence. Celotex, 477 U.S. at 323. Once the moving party has made an initial showing, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The party defending against the motion for summary judgment cannot defeat the motion unless he provides specific facts that show the case presents a genuine issue of material fact, such that a reasonable jury might return a verdict in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere assertions of a factual dispute unsupported by probative evidence will not prevent summary judgment. Id. at 248-50; Abbot v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir. 1993). In other words, conclusory statements, speculation and unsubstantiated assertions will not suffice to defeat a motion for summary judgment. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which he bears the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23. The Court will not, in the absence of any proof, assume that the nonmoving party could or would prove the essential facts necessary to support a judgment in favor of the nonmovant. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075-1076 (5th Cir. 1994).
Finally, the Court has no duty to search the record for triable issues. Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998). "The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which the evidence supports his or her claim." Id. A party may not rely upon "unsubstantiated assertions" as competent summary judgment evidence. Id.
II. The Antitrust Claim
Dr. Poliner alleges that by participating in the suspension of his privileges the Defendants: (1) entered into a combination and conspiracy in violation of Sections 1 and 2 of the Sherman Act and Section 4 of the Clayton Act; and (2) engaged in an unlawful combination and conspiracy in violation of the Texas Free Enterprise and Anti-Trust Act of 1983. The same elements are required to establish a violation of the Texas Free Enterprise and Anti-Trust Act and the comparable sections of the Sherman Act. Further the Texas statute is to be read in harmony with the Sherman Act. Thus, the Court will examine these claims together. See Nafrawi v. Hendrick Med. Ctr., 676 F. Supp. 770, 774 (N.D. Tex. 1987) (citing Tex. Bus. Com. Code Ann. § 15.05(a) (Vernon 1997)).
The Fifth Circuit has previously observed that the Sherman Act "does not purport to afford remedies for all torts committed by or against persons engaged in interstate commerce." Kiepfer, M.D. v. Beller, 944 F.2d 1213, 1221 (5th Cir. 1991) (citing Larry R. George Sales Co. v. Cool Attic Corp., 587 F.2d 266, 272 (5th Cir. 1979). "The limited scope of the antitrust laws results from the fact that they are intended to protect competition, not necessarily competitors." Id. Thus, as an initial matter, an antitrust plaintiff must show not just that the defendants' actions injured him, but that they unreasonably restrained competition. Id. ("[f]ederal courts have consistently held that Section 1 of the Sherman Act prohibits only unreasonable restraint of trade; in the ordinary case, alleged violations are judged by a `rule of reason'").
Section 1 of the Sherman Antitrust Act forbids contracts, combinations, or conspiracies in restraint of trade or commerce. 15 U.S.C. § 1. To prevail on a section 1 claim, plaintiff must show that the defendants (1) engaged in a conspiracy, (2) that produced some anti-competitive effect, (3) in the relevant market. Johnson, D.O. v. Hosp. Corp. of Am., 95 F.3d 383, 392 (5th Cir. 1996). Section 1 applies only to concerted action; unilateral conduct is excluded from its purview. Id.
The Court finds that Plaintiff has failed to establish that the suspension of his privileges was the result of anti-competitive concerted action on the part of the Defendants. Courts have cautioned that "[i]f the claim is one that simply makes no economic sense, respondents must come forward with more persuasive evidence to support their claim than otherwise would be necessary." Johnson, 95 F.3d at 393. Plaintiff contends that the AHC was made up of his competitors. Plaintiff asserts that over seventy percent of all cardiology procedures at PHD were performed by two groups, the North Texas Heart Center ("NTHC") and the Cardiology and Internal Medicine Association ("CEVIA"). Plaintiff maintains that these two groups made up the AHC and wanted to eliminate plaintiff as a competitor. However, three of the six doctors on the AHC were not members of either NTHC or CIMA. These three doctors were independent doctors as was plaintiff. Apart from his general assertions, plaintiff has not presented any evidence of concerted anti-competitive action by the cardiologists at PHD. Further plaintiff offers no explanation as to why the independent doctors on the AHC had any motive to eliminate plaintiff as a competitor. These doctors were in the same circumstances as plaintiff in that they were competing with the two large groups at PHD. Nor does plaintiff offer any explanation for why the two large cardiology groups did not turn their anticompetitive designs on these other independent doctors. The Court finds that there is no evidence that any of the individual doctor Defendants stood to benefit economically from the suspension of Plaintiff's privileges here. See Rea, M.D. v. Hosp. Corp. of Am., 892 F. Supp. 821, 825 (N.D. Tex. 1993). Monitoring the competence of physicians through peer review is clearly in the public interest, and revocation or suspension of a physician's privileges because of legitimate concerns about the quality of patient care that he rendered is obviously a lawful objective. Willman, M.D. v. Heartland Hosp. East, 34 F.3d 605, 610 (8th Cir. 1994). Thus, plaintiff has not shown any anti-competitive conspiracy.
Nevertheless, even assuming the established proof of a conspiracy to suspend his privileges plaintiff must still show harm to competition sufficient to demonstrate a Section 1 violation because of the suspension of his cardiac cath lab and echocardiography privileges at the Hospital for part of 1998. See Doctor's Hasp, of Jefferson, Inc. v. Southeast Med. Alliance, Inc., 123 F.3d 301 (5th Cir. 1997). To prove a Section 1 violation, plaintiff must show that defendants' activities caused an injury to competition. Id. at 307.
Dr. Poliner has not presented evidence that affiliation with the NTHC or CIMA was necessary to compete in the marketplace or that the suspension of his privileges somehow reflected injury to competition generally. Although the Court assumes for present purposes that Plaintiff was damaged as a result of his suspension and that Defendants intended to harm Dr. Poliner by suspending his privileges, Plaintiff cannot show that it rendered him unable to compete. At the time of his suspension, Plaintiff continued to have privileges at other hospitals in the area. The summary judgment evidence shows that plaintiff had full staff privileges at five other hospitals and courtesy privileges at two other hospitals at the time of his summary suspension. (Plf. App., Vol. 4, at 2428-29). Further, the number of providers available to the ultimate consumers was not reduced. Thus, the ability of purchasers to choose health care providers was unchanged as Dr. Poliner's services remained available to consumers at other health care facilities. Therefore, in the absence of any anticompetitive effect in any market, the Court holds that a jury could not properly find that Defendants' actions violated Section 1 of the Sherman Act.
Section 2 of the Sherman Act prohibits the monopolization or attempted monopolization of any part of interstate trade or commerce. 15 U.S.C. § 2. To prove monopolization, the plaintiff must demonstrate that the defendant had both the capacity and the intent to monopolize. Seidenstein, M.D. v. Nat'l Medical Enter., Inc., 769 F.2d 1100, 1105-1106 (5th Cir. 1985). In addition, to establish Section 2 violations premised on attempt and conspiracy to monopolize, a plaintiff must define the relevant market. Doctor's Hosp. of Jefferson, 123 F.3d at 311. "To define a market is to identify producers that provide customers of a defendant firm (or firms) with alternative sources for the defendant's product or services." Id. The relevant product and geographic markets must reflect the realities of competition. Id.
Defendants here urge that the relevant market urged by Dr. Poliner and his experts is too narrowly drawn as it consists only of Defendant Hospital. The Court agrees. Notably, "every court that has addressed this issue has held or suggested that, absent an allegation that the hospital is the only one serving a particular area or offers a unique set of services, a physician may not limit the relevant geographic market to a single hospital." Ginzberg, M.D. v. Memorial Healthcare Systems, Inc., 993 F. Supp. 998, 1013 (S.D. Tex. 1997). Defendants' expert opines that the relevant market is a seventeen county area around Dallas-Ft. Worth from which PHD attracted its cardiology patients. The court notes that all but two of the seventeen counties from which PHD drew its cardiology patients are north of Dallas. One county, Kaufman, is east and slightly southeast of Dallas, and the other, Henderson is southeast. (Def. App., Vol. 2, at 1065, 1076). Thus, an argument could be made that the realty of competition is that PHD draws its patients from Dallas County and areas to the north of Dallas County. The court finds that the relevant product market is, at least, the provision of inpatient invasive cardiology procedures. The relevant market is at least the City of Dallas north of Interstate 30, or north of downtown.
As noted above, Dr. Poliner had privileges at other hospitals after his privileges were suspended at PHD. Plaintiff's summary judgment evidence establishes that he was able to treat some of his patients at other hospitals following his suspension at PHD. In establishing a Section 2 violation, plaintiff must present evidence concerning where the ultimate consumers of the relevant medical services could go for alternative services. Doctor's Hospital of Jefferson v. Southeast Medical Alliance Inc., 123 F.3d at 311. Plaintiff has failed to produce any evidence that ultimate consumers of the relevant medical services could not turn to hospitals other than PHD to obtain the services. To the contrary, the evidence shows that consumers could and did utilize other hospitals after plaintiff lost his privileges at PHD. Although plaintiff's expert presents evidence that the two primary cardiology groups at PHD increased their share of business following plaintiff's suspension of privileges, plaintiff offers no evidence that PHD or the defendant doctors increased their business in the larger relevant market. Thus, because plaintiff's proposed relevant market is too narrow, evidence of what happened at PHD following plaintiff's suspension is not sufficient to establish that defendants had market power in the relevant market. That is, plaintiff has not shown that defendants had the ability or opportunity to dominate or to attempt to monopolize the larger relevant market outside PHD. Id. Therefore, plaintiff has failed to establish that a fact issue exists with respect to his Sherman Act, Section 2 claim.
The summary judgment evidence shows that PHD was the second largest provider of cardiology services in the Dallas-Ft. Worth area. (Def. App., Vol. 2 at 1067). Besides PHD, plaintiff had privileges at the third and eighth largest providers of cardiology services in the same area. (Plf. App., Vol. 4, at 2428-29).
Defendants' motion for summary judgment is granted with respect to all of plaintiff's antitrust claims.
III. Procedural Rights Under the Medical Bylaws
Under Texas law, an important distinction exists between (a) medical bylaws, which are bylaws created by the medical staff to control the governance of the medical professionals with privileges at the hospital, and (b) hospital bylaws, which are a set of bylaws created by the hospital itself and adopted by its governing board. See Gonzalez v. San Jacinto Methodist Hosp., 880 S.W.2d 436, 438 (Tex.Civ.App. — Texarkana 1994, writ denied). Under the former, it is generally understood that rights promulgated by medical staff bylaws are considered incapable of creating an enforceable contract between the hospital and its physicians. See Weary v. Baylor Univ. Hosp., 360 S.W.2d 895, 897-898 (Tex.Civ.App.-Waco 1962, writ ref'd n.r.e.); see also Stephen, M.D. v. Baylor Medical Ctr. at Garland, 20 S.W.3d 880, 887 (Tex.Civ.App.-Dallas 2000, no writ). However, under the latter, procedural rights prescribed under hospital bylaws may constitute contractual rights between the physicians and the adopting hospital. See Gonzalez, 880 S.W.2d at 438-39; see also Stephen, 20 S.W.3d at 887. Federal courts applying Texas law have adhered to this view. See Monroe v. AMI Hosp, of Tex., Inc., 877 F. Supp. 1022, 1029 n. 5 (S.D. Tex. 1994) ("This court notes, however, under Texas law, a hospital's medical staff bylaws do not constitute a contract between a hospital and its medical staff members").
PHD's bylaws provide that the "Medical/Dental Staffs' Bylaws shall provide a process for denying, withdrawing or qualifying staff privileges, which provides procedural due process for the member." PHD's Bylaws, Art. Eleven, § 11.04. In turn, the medical staffs' bylaws provide that summary suspension of privileges can be made when the conduct of the physician "constitutes a present danger to the health of his patients." Medical Staffs' Bylaws, Art. VIII-Part C: Section 2(a). PHD argues that because the Board of Trustees of the hospital retain the final authority with respect to suspensions, the medical staffs' bylaws do not create contractual rights for members of the staff. The court disagrees. The court finds that the hospital bylaws in this case are similar to the bylaws in Gonzalez v. San Jacinto Methodist Hospital, 880 S.W.2d 436 (Tex. — Texarkana 1994). In Gonzalez, the hospital bylaws provided that when a staff member's privileges were to be suspended or terminated the member was entitled to a hearing before the Medical Staff. The bylaws further provided that the hearing "shall be conducted formally under procedures adopted by the Board of Directors and contained in the Medical Staff Bylaws, Rules and Regulations to assure due process and afford full opportunity for the presentation of all pertinent information." In the present case, the hospital bylaws directed that the process for suspension of members' privileges was to by provided by the Medical Staffs' bylaws and were to provide for procedural due process for the member. As in Gonzalez, the bylaws of the PHD medical staff were subject to approval of the Board of Trustees of PHD and were to provide procedural due process for the staff members. PHD Bylaws, Art. Eleven, §§ 11.02 11.04. Thus, the court finds that the hospital bylaws in the present case provided contractual procedural due process rights. As discussed below, the court has determined that there are fact issues as to whether defendant PHD breached its contractual obligations to insure procedural due process for plaintiff. Hence, PHD's motion for summary judgment is denied with respect to plaintiff's breach of contract claim.
IV. State Law Claims
As described above, Dr. Polinar brings several state law claims against all of the defendants. The defendants assert they are entitled to summary judgment on all of plaintiff s state law claims based upon immunity under the Healthcare Quality Improvement Act ("HCQIA"), 42 U.S.C. § 11111 et seq., and the Texas Peer Review Immunity Statutes, Tex. Occ. Code Ann. § 160.001 et seq. These arguments will be addressed below.
A. The Healthcare Quality Improvement Act
The HCQIA was enacted to provide for effective peer review and interstate monitoring of incompetent physicians, and also to provide qualified immunity for peer review participants. Austin v. McNamara, M.D., 979 F.2d 728, 733 (9th Cir. 1992). In furtherance of the latter goal, the HCQIA states that if a "professional review action of a professional review body meets certain [specified] standards, then (A) the professional review body, (B) any person acting as a member or staff to the body, (C) any person under contract or other formal agreement with the body, and (D) any person who participates with or assists the body with respect to the action, shall not be liable in damages under any law of the United States or any State . . . with respect to the action." See 42 U.S.C. § 11111(a)(2001).
A "professional review action" means "an action or recommendation of a professional body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician. See 42 U.S.C. § 11151(9).
A "professional review body" means "an activity of a health care entity with respect to an individual physician —
(A) to determine whether the physician may have clinical privilege with respect to, or membership in, the entity;
(B) to determine the scope or condition of such privileges or membership; or
(C) to change or modify such privileges or membership.See 42 U.S.C. § 11151(10).
In order for immunity to apply under the HCQIA, the professional review action must be taken:
(1) in the reasonable belief that the action was in furtherance of quality health care,
(2) after a reasonable effort to obtain the facts of the matter,
(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and
(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3) [above].See 42 U.S.C. § 11112(a). The Act also includes a presumption that a professional review action meets each of the four prongs of Section 11112(a), unless the plaintiff can rebut the presumption by a preponderance of the evidence. See Id.; see also Brader v. Allegheny Gen. Hosp., 167 F.3d 832, 839 (3rd Cir. 1999).
The standard for reviewing summary judgment under the HCQIA is therefore unconventional: although the defendant is the moving party, the court must examine the record to determine whether the plaintiff has "satisfied his burden of producing evidence that would allow a reasonable jury to conclude that the peer disciplinary process failed to meet the standards of HCQIA." Brader, 167 F.3d at 839. With the purpose of the HCQIA and its burden allocations in mind, the Court shall now examine Plaintiff's specific arguments as to why immunity should not attach to Defendants for the peer review actions taken against him.
1. Reasonable Belief that the Action Furthered Quality Health Care
Dr. Poliner contends that he has raised material issues of fact as to whether Defendants were motivated by something other than a reasonable belief that their actions would further the care of the Hospital's patients. More specifically, Plaintiff alleges that the combination of the personal animosity toward him and the desire to eliminate an economic competitor resulted in a conspiracy to eliminate plaintiff from practicing at PHD. In making this examination, most courts have adopted an objective standard of reasonableness. See Brader, 167 F.3d at 839; see also Sugarbaker, M.D. v. SSM Health Care, 190 F.3d 905, 912-913 (8th Cir. 1999) cert. denied, 528 U.S. 1137 (2000); Mathews, M.D. v. Lancaster Gen. Hosp., 87 F.3d 624, 635 (3rd Cir. 1996); Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026, 1030 (4th Cir. 1994); Egan v. Athol Memorial Hosp., 971 F. Supp. 37, 42 (D. Mass 1997), affirmed 134 F.3d 361 (1st Cir. 1998). That is, the focus of this inquiry is not whether the defendants' initial concerns are ultimately proven to be medically sound. Rather, the objective inquiry focuses on whether the professional action taken against plaintiff was taken "in the reasonable belief that the action was in the furtherance of quality health care." See Sugarbaker, 190 F.3d at 913.
In this case, the court finds that the summary judgment evidence creates a fact issue as to whether Dr. Poliner was summarily suspended on May 14, 1998. Defendants maintain that plaintiff agreed to an abeyance as provided in the hospital by-laws. However, the hospital by-laws require that the physician must agree to the abeyance. Art. VIII, Part C: Section 3(a). Dr. Poliner maintains he was told by Dr. Knochel that if he did not agree to the abeyance, plaintiff's privileges would be summarily suspended. Dr. Knochel testified in his deposition that he told plaintiff that the only alternative to the abeyance was suspension. Thus, there is a fact issue as to whether plaintiff agreed to an abeyance or was instead summarily suspended. Assuming for summary judgment purposes that the abeyance was instead a summary suspension, the court must then determine whether that action was taken in accordance with the HCQIA. The HCQIA provides that the requirement of adequate notice and hearing procedures do not preclude immediate suspension of privileges subject to subsequent notice and hearing "where the failure to take such an action may result in an imminent danger to the health of any individual." 42 U.S.C. § 1112(c)(2). PHD's Medical Staff by-laws provide summary suspensions may be made when the acts of a physician "present a danger to the health of this patients. . . ." However, the HCQIA does require that summary suspensions be made only after a reasonable effort to obtain the facts of the matter. At the time he offered plaintiff the abeyance, Dr. Knochel knew of the ongoing investigations by the LMAC and of the incident in the cath lab on May 12, 1998. However, Dr. Knochel could not have made the decision to summarily suspend Dr. Poliner on the basis of the complaints then before the IMAC. Those complaints were initially made in September, October and December 1997 and were still under investigation in May 1998. Thus, those complaints could not have been considered by Defendants as "constituting an imminent danger to the health" of plaintiff s patients. Defendants also knew of the May 12 incident in the emergency room concerning patient no. 36. However, before suspending plaintiff, defendants had not received the report from the IMAC, did not talk to Dr. Poliner about any specific complaints, and did not offer plaintiff the opportunity to give his side of the story and to address the concerns defendants had about plaintiff's conduct. Thus, if plaintiff was summarily suspended on May 14, 1998, the court finds there are fact issues as to whether defendants Levin, Harper, Knochel, and PHD: (1) acted in the reasonable belief that their action was in furtherance of quality health care; (2) acted after a reasonable effort to obtain the facts of the matter after procedures that were fair to Dr. Poliner under the circumstances; (3) reasonably believed immediate suspension was necessary because failure to act may have resulted in an imminent danger to the health of any person; and (4) acted with actual malice. Thus, defendants' Knochel, Levin, Harper, and PHD's motion for summary judgment is denied on the basis of immunity under the HCQIA.
Defendants Charles Harris, Anthony Das, David Musselman, Robert Brockie, Jorge Cheirif, Steven Meyer, and Martin Berk were sued by plaintiff because of their roles on the AHC or IMAC committee or because they participated in reviewing plaintiff's care of his patients. The court finds these defendants are entitled to summary judgment on the basis of the immunity provided by the HCQIA and the Texas Peer Review Immunity Statutes. As set forth above, the evidence establishes that the first documented review of plaintiff occurred after a nurse in the cath lab filled out a CERF against Dr. Poliner on September 29, 1997. Three CERFs were filed against Dr. Poliner by nurses in the cath lab in September, October, and December 1997. By hospital policy, the CERFs were referred to the hospital's Clinical Risk Review Committee ("CRRC"). None of the defendants named in this suit were members of the CRRC. The CRRC reviewed two of the CERFs on January 12, 1998, identified several concerns with Dr. Poliner's patient care in the two cases, and referred the cases to the Internal Medicine Department for further review. The CRRC took up review of the CERF with respect to patient no. 9 on April 13, 1998, and that case was also referred to Internal Medicine Department. All three cases were then referred to the EVIAC, the committee charged with investigating patient care concerns within the Internal Medicine Department. The EVIAC was still reviewing the three cases involving Dr. Poliner when the May 12, 1998 incident involving patient no. 36 occurred. After obtaining the abeyance from plaintiff, Dr. Knochel appointed an Ad Hoc Committee ("AHC") composed of six cardiologists to review plaintiff's cath lab and echocardiogram privileges. The AHC was the hospital committee that performed the most thorough review of plaintiff's cases. Plaintiff asserts that the reviews were less than thorough and that the written reviews completed by the reviewing defendants were "so egregious that they are prima facie evidence of malice and intent to harm." (Plf's Brief in Resp. to Mot. For SJ. at 3). Plaintiff further argues that there is no evidence to establish that he was a danger to his patients at the time of his summary suspension on June 12, 1998. Plaintiff supports his argument with the testimony of several retained experts. After reviewing forty-four (44) of plaintiff's cases, the AHC concluded that plaintiff rendered substandard care in twenty-nine (29) of the cases. The JJVIAC then met to discuss the report of the AHC. The EVIAC was composed of several doctors only one of whom was a cardiologist. Thus, most of the members of the IMAC were not direct competitors of Dr. Poliner. The IMAC met and reviewed the report of the AHC and subsequently met and heard from Dr. Poliner. After hearing from the AHC and from Dr. Poliner, the EVIAC voted unanimously to recommend suspension of Dr. Poliner's privileges on June 12, 1998. Following plaintiff's appeal of his suspension, the Hearing Committee heard evidence over portions of three days. The Hearing Committee recommended restoration of Dr. Poliner's privileges, but also concluded that the suspension of Dr. Poliner's privileges was justified under the circumstances then existing. Dr. Poliner has agreed that the members of the hearing committee were not his competitors, In sum, the record establishes that the CRRC, the IMAC, and the hearing committee all had concerns with some of Dr. Poliner's practices. The overwhelming majority of the doctors on those committee were not competitors of Dr. Poliner. The recommendations of the AHC and the IMAC were made only after review of some of plaintiff's files and after hearing from plaintiff. The court cannot overlook this evidence in favor of plaintiff's personal beliefs and the opinions of hired experts. Moreover, there is no evidence in the record that any of the doctors on the CRRC, the IMAC or the hearing committee had any personal animosity towards plaintiff. Plaintiff's evidence of malice as to these defendants consists of instances where the defendants disagree with a finding or course of treatment followed by plaintiff after review of the patients' files. The court does not find this evidence sufficient to raise a fact issue of malice with respect to these defendants. These defendants were doing what is customary in peer review processes, and plaintiff has not presented sufficient evidence to overcome the immunity conferred by the HCQIA.
2. Reasonable Fact Gathering
In order to qualify for HCQIA immunity, Defendants must also have made a reasonable effort to obtain the relevant facts. See 42 U.S.C. § 11112(a)(2). In assessing this issue, the Court must consider whether the totality of the process leading up to plaintiff's summary suspension evidenced a reasonable effort to obtain the facts of the matter. See Matthews, 87 F.3d at 637; see also Brader, 167 F.3d at 831.
With respect to defendants Knochel, Harper, Levin and PHD, for the reasons stated above the court finds that their actions in summarily suspending plaintiff on May 14, 1998 were not made after a reasonable effort to obtain the facts in the case.
Plaintiff asserts here that the reviews conducted by the AHC were biased, incomplete, and filled with errors. Thus, plaintiff concludes those defendants did not make reasonable efforts to obtain the facts in this case. For reasons stated above, the court disagrees. Plaintiff's conclusion is drawn largely from the testimony of his experts. However, some of plaintiff's own experts acknowledged errors made by plaintiff. Additionally, plaintiff's arguments ignore that other doctors in the hospital, who were not direct competitors of plaintiff and who have not been shown to have had any ill will toward plaintiff, expressed concern with plaintiff's patient care. Plaintiff maintains that some of the personnel in the cath lab were upset with him because of the emergency nature of his practice, and because some believed that cases plaintiff treated as emergencies were not really emergencies. However, apart from this general speculation, plaintiff provides no evidence that the specific complaints made by the cath lab nurses were motivated by ill will. More importantly, there has been no showing that the CRRC's referrals to the IMAC of the three CERFs filed against plaintiff were motivated by ill will. The CRRC's referral of the complaints to the Internal Medicine Department indicates that legitimate concerns about patient care were involved. None of the members of the CRRC are defendants in this case. None of the doctors on the CRRC were direct competitors of plaintiff, and none have been shown to have had any animosity against plaintiff. Similarly, only one member of the IMAC could be seen as a direct competitor of plaintiff. There is no evidence that the other members of the IMAC had animosity against plaintiff. Yet these doctors, after reviewing the report from the AHC and after hearing from plaintiff, recommended unanimously that plaintiff's privileges be suspended. The same is true of the Hearing Committee that heard plaintiff's appeal of his suspension. Although the committee recommended that plaintiff's privileges be restored, the committee also found that the summary suspension of plaintiff's privileges was proper under the evidence known at the time.
On the record as a whole, the court finds that the actions taken by Defendants Harris, Das, Musselman, Brockie, Cheirif, Meyer, and Berk, were sufficient to constitute a "reasonable effort to obtain the facts."
3. Adequate Notice and Hearing
Plaintiff maintains that he was not afforded adequate notice and hearing procedures in accordance with the HCQIA. Plaintiff complains that he was given only one hour to review the cases with EVIAC, and that he was never given the opportunity to meet with the AHC who conducted the reviews. Plaintiff also complains that only one cardiologist was on the IMAC. However, plaintiff has not shown that the absence of cardiologists on the IMAC rendered the peer review process fundamentally unfair to him. Additionally, the court notes that there were no cardiologists on the Hearing Committee that recommended restoring plaintiff's privileges. The HCQIA requires that "adequate notice and hearing procedures" be afforded to the physician involved. 42 U.S.C. § 111112(a)(3). However, the HCQIA also provides that the notice and hearing requirements of the statute do not "preclude an immediate suspension or restriction of clinical privileges, subject to subsequent notice and hearing or other adequate procedures, where the failure to take such an action may result in an imminent danger to the health of any individual." 42 U.S.C. § 11112(c). Plaintiff, relying on his testimony and the testimony of his experts, asserts that the defendants cannot show that imminent danger to any of his patients existed at the time of his summary suspension. For the reasons stated above, the court finds there is a fact issue with respect to plaintiff's summary suspension on May 14 1998.
However, the court finds that the actions of the AHC and the IMAC were taken after adequate notice to plaintiff and after a hearing. Plaintiff complains that he was given insufficient time to respond to twenty-nine complex cases before the JJVIAC. However, prior to the hearing with the DVIAC, plaintiff was given a list of the cases with which the IMAC had concerns. Plaintiff was then provided access to all of the records pertaining to those cases. Additionally, the letter of abeyance given to plaintiff on May 14, 1998 identified concerns with plaintiff's treatment of patients nos. 3, 9, 18, and 36. The immediate danger to patient safety concerns resulted from Dr. Poliner's treatment of patient no. 36. Although the abeyance letter did not specify the concerns with those patients, plaintiff had notice of concerns with those cases for almost four weeks prior to the hearing before the JJVIAC. Dr. Steven Rinner, an internist on the IMAC, identified the case of patient no. 36 as the one that concerned him the most and the reason that Dr. Rinner considered plaintiff a danger to his patients. The court cannot find on the record of this case that the proceedings of the AHC and the IMAC were such that plaintiff was not given a meaningful opportunity to address the concerns raised against him. Dr. Poliner requested additional time from Dr. Knochel to respond to the issues raised, and Dr. Knochel denied the request. However, there is no evidence that plaintiff asked the IMAC for additional time to respond or informed the IMAC that he had been given insufficient time to respond to the concerns raised about his patient care. On the record as a whole, the court concludes that Plaintiff was afforded adequate notice and hearing as required under the HCQIA with respect to the actions of the AHC and the IMAC. Accordingly, the defendant doctors on those committees are entitled to immunity, and summary judgment is granted in favor of defendants Harris, Das, Musselman, Brockie, Cheirif, Meyer, and Berk as to all of plaintiff's state law claims against these defendants.
B. Texas Peer Review Immunity Statutes
In addition to the immunities granted by the HCQIA, the Act itself allows individual states to provide even further protection to medical peer review activities. See Roe v. Walls Regional Hosp., Inc., 21 S.W.3d 647, 652 (Tex.Civ.App.-Waco 2000). Specifically, the HCQIA provides that: "nothing in this subchapter shall be construed as changing the liabilities or immunities under law or as preempting or overriding any State law which provides incentives, immunities, or protection for those engaged in a professional review action that is in addition to or greater than that provided by this subchapter." 42 U.S.C. § 11115(a); see also St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 507 (Tex. 1997) ("even if the Federal Act does not apply . . . this provision specifically allows states to implement their own initiatives to provide greater immunities in professional review actions than those the Federal Act provides").
To this end, the Texas Legislature in 1987 enacted section 5.06 of the Texas Medical Practice Act ("TMPA"), which under section 5.06 provided:
( l) A cause of action does not accrue against the members, agents, or employees of a medical peer review committee or against the health-care entity from any act, statement, determination or recommendation made, or act reported, without malice, in the course of peer review as defined by this Act.
(m) A person, health-care entity, or medical peer review committee, that, without malice, participates in medical peer review actively or furnishes records, information, or assistance to a medical peer review committee or the board is immune from any civil liability arising from such an act.See Roe, 21 S.W.3d at 653 ( citing Tex. Rev. Civ. Stat. Ann. art. 4495b § 5.06( l), (m) (repealed)). Thereafter, in 1989, the Texas Legislature enacted sections 161.031-161.033 of the Health and Safety Code, extending peer review immunity to members of a "medical committee":
A member of a medical committee is not liable for damages to a person for an action taken or recommendation made within the scope of the functions of the committee if the committee member acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts known to the committee member.See Roe, 21 S.W.3d at 65 ( citing Tex. Health Safety Code Ann. § 161.033 (Vernon 1992).
Currently codified in the Texas Occupations Code, immunity from civil liability is provided to:
(1) a person who, in good faith, reports or furnishes information to a medical peer review committee or the board;
(2) a member, employee or agent of the board, a medical peer review committee, or a medical organization district or local intervenor, who takes an action or makes a recommendation within the scope of the functions of the board, committee, or intervenor program, if that member, employee, agent, or intervenor acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts known to that person; and
(3) a member or employee of the board or any person who assists the board in carrying out its duties or functions provided by law.
Tex. Occ. Code Ann. § 160.010(a) (Vernon 2001) (emphasis added). As such, Texas has clearly taken the additional step of providing for more protection to the activity of medical peer reviews than those which the HCQIA provides. See Roe, 21 S.W.3d at 653 (citing Agbor, 952 S.W.2d at 507). Thus, the qualified immunity from liability conferred by these statutes to defendants can be defeated only by a showing that they acted with actual malice. See Id. The court now turns to the issue of whether plaintiff has provided summary judgment evidence raising a genuine issue of material fact on the question of malice.
C. Malice
In the context of the Texas peer review immunity statutes, actual malice is the standard by which defendants' conduct is measured. Johnson v. Hospital Corp. of America, 95 F.3d 383, 395 (5th Cir. 1996). Actual malice means "the making of a statement with knowledge that it is false, or with reckless disregard of whether it is true." Duffy v. Leading Edge Products, Inc., 44 F.3d 308 at 313 (5th Cir. 1995) (internal citations and quotations omitted). "Reckless disregard" means that a statement is made with "a high degree of awareness of probable falsity." Id. When a qualified privilege is asserted as an affirmative defense, which the defendants have done, whether the statements are true is of no moment, unless there is clear evidence of actual malice. A plaintiff must show that the defendant acted with actual malice in order to overcome the affirmative defense of qualified privilege. ContiCommodity Services, Inc. v. Ragan, 63 F.3d 438, at 443 (5th Cir. 1995). If a fact question exists whether a statement or comment was made with actual malice, that statement automatically loses qualified privilege status, and summary judgment would be inappropriate. See Bozéé v. Branstetter, 912 F.2d 801, 807 (5th Cir. 1990). In the context of the summary judgment motion, plaintiff must raise a fact issue of actual malice rather than defendants prove the absence of malice. Duffy v. Leading Edge, 44 F.3d at 314. "Negligence, lack of investigation, or failure to act as a reasonably prudent person are insufficient to show actual malice." Id., at 313 (citing Shearson Lehman Hutton, Inc. v. Tucker, 806 S.W.2d 914, 924 (Tex.Civ.App.-Corpus Christi 1991, writ dismissed w.o.j.)). However, inadequate investigation coupled with the presence of ulterior motives may be sufficient to raise a fact issue as to actual malice. Id. at 315.
In the present case, there is not simply a claim of inadequate investigation, but a complete failure to investigate and to gather all of the facts from both sides before Dr. Knochel summarily suspended plaintiff's privileges by telling plaintiff to sign the abeyance letter or face immediate suspension. Viewing the summary judgment in light most favorable to plaintiff, there is evidence that defendants Knochel, Harper, Levin, and PHD violated their own bylaws as well as the HCQIA in summarily suspending Dr. Poliner's privileges. Additionally, plaintiff presents evidence that some of the defendants involved in the summary suspension of May 14 harbored animosity against plaintiff. Thus, the court finds that a fact issue exists with respect to whether defendants Knochel, Harper, Levin and PHD acted with actual malice. These defendants' motion for summary judgment on the basis of immunity conferred by the Texas peer review statutes is denied.
With respect to defendants Harris, Das, Musselman, Brockie, Cheirif, Meyer, and Berk, the court finds plaintiff has failed to raise an issue of malice, and summary judgment is granted in favor of these defendants as to all of plaintiff's state law claims against them.
VII. Interference with Contractual Relations
Plaintiff brings a related claim against all the Defendants for the wrongful and intentional interference with his business and contractual relationships with his existing and prospective patients. See PL's Third Amend. Compl. at ¶¶ 123-127. To recover for tortious interference with an existing contract, the plaintiff must prove: (1) the existence of a contract subject to interference, (2) the act of interference was willful and intentional, (3) such intentional act was a proximate cause of plaintiff's damage and (4) actual damage or loss occurred. See Johnson v. Hospital Corp. of America, 95 F.3d 383, 394 (5th Cir. 1996) ( citing Victoria Bank Trust Co. v. Brady, 811 S.W.2d 931, 939 (Tex. 1991). Having determined that fact issues exist with respect to whether defendants Knochel, Levin, Harper and PHD acted with malice, the court denies these defendants' motion on the grounds that their conduct was privileged or protected by the peer review immunity statutes. Additionally, there is a fact issue as to whether defendants wrongfully suspended plaintiff's privileges. If the jury finds that defendants wrongfully suspended plaintiff's privileges, this would satisfy the independent tort requirement of Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711 (Tex. 2001). Defendants Harris, Das, Musselman, Brockie, Cheirif, Meyer, and Berk's motion for summary judgment as to plaintiff s tortious interference with business claim is granted since plaintiff has not established a fact issue that these defendants acted with malice.
VIII. Defamation and Business Disparagement Claims
Defendants move for summary judgment on the grounds that the personal defamation claims are barred by the one year statute of limitations. With respect to the business disparagement claims, defendants assert that the allegedly defamatory statements were true and the statements were entitled to a qualified privilege. To sustain a claim involving statements that enjoy a qualified privilege, plaintiff must show that defendants' publication of the statements was motivated by actual malice at the times the statements were made.
Plaintiff concedes that the personal defamation claims are subject to a one year statute of limitations. However, Plaintiff maintains that each publication of the statements gives rise to a separate cause of action. Carr v. Mobile Video Tapes, Inc., 893 S.W.2d 613, 619 (Tex.App.-Corpus Christi 1995, no writ). Additionally, plaintiff alleges that he was forced to publish his suspension of privileges when he has applied or reapplied for privileges and to state agencies and to third party payors. Texas courts recognize the narrow category of cases of self-compelled defamation. Purcell v. Seguin State Bank and Trust Co. 999 F.2d 950, 959 (5th Cir. 1993). Plaintiff presents evidence of publication within one year of the filing of this suit. Defendants' Knochel, Levin, Harper and PHD's motion for summary judgment as to plaintiff s personal defamation claims is denied.
With respect to the business disparagement claims, the court has previously found that a fact issue exists as to whether defendants acted with actual malice. Thus, even if the statements enjoy a qualified privilege, the existence of a fact issue on the issue of actual malice precludes summary judgment for these defendants on this claim. Defendants also contend that the statements concerning Dr. Poliner's suspension were true. However, the court has determined that a fact issue exists as to whether defendants suspended plaintiff because of a belief of an imminent danger to plaintiff's patients or for other reasons. Hence, defendants' Knochel, Levin, Harper and PHD's motion for summary judgment with respect to plaintiff's business disparagement claims is denied. Summary judgment is granted in favor of defendants Harris, Das, Musselman, Brockie, Cheirif, Meyer, and Berk on plaintiff's personal defamation and business disparagement claims.
IX. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
To recover on a claim of Intentional Infliction of Emotional Distress, a plaintiff must establish that 1) the defendant acted intentionally or recklessly, 2) the conduct was "extreme and outrageous", 3) the actions of the defendant caused plaintiff emotional distress, and 4) the resulting emotional distress was severe. Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993). Whether a defendant's conduct is extreme and outrageous is a question of law. Brewerton v. Dalrymple, 997 S.W.2d 212, 216 (Tex. 1999). The fact that a defendant's conduct is tortious or otherwise wrongful does not, standing alone, necessarily render it extreme and outrageous, id. To be extreme and outrageous, a defendant's conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 611 (Tex. 1999).
Because the court has found that a fact issue exists as to whether defendants Knochel, Levin, Harper, and PHD acted with actual malice, summary judgment is denied as to these defendants on plaintiff s intentional infliction of emotional distress claim. However, summary judgment is granted in favor of defendants Harris, Das, Musselman, Brockie, Cheirif, Meyer, and Berk on this claim.
X. Deceptive Trade Practices Act Claims
Defendants move for summary judgment on plaintiff's Texas Deceptive Trade Practices Act claim on the grounds that plaintiff is not a consumer under the TDPA. A "consumer" under the TDPA is someone who sought or acquired, by purchase or lease, goods or services. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996). The summary judgment evidence does not establish that plaintiff is consumer of the hospital with respect to his privileges at the hospital. Clearly, plaintiff was not a consumer with respect to the individual defendants in this case. Summary judgment is granted in favor of all defendants on plaintiff's TDPA claim.
XI. Miscellaneous Motions
Plaintiff filed a motion to amend complaint on July 11, 2002 seeking to include as a plaintiff in this case Lawrence Poliner, M.D., P.A., a sub-chapter S corporation organized under the laws of the State of Texas wholly owned by Dr. Poliner. Defendants object to the amendment asserting the amendment is untimely and prejudicial to defendants. Federal Rule of Civil Procedure 15(a) provides for amendment by leave of court and requires that leave be freely granted when justice requires. Plaintiff's proposed amendment does not add new claims or theories of recovery. It appears that defendants have known of the existence of the P. A. for some time, and the court does not find that allowing the amendment will cause prejudice to defendant. Plaintiff's motion to amend complaint is GRANTED.
Defendants' objections to plaintiff's summary judgment evidence and plaintiff's supplemental summary judgment evidence are DENIED as moot except where the court finds it necessary to rule on a specific objection in deciding this motion for summary judgment. Defendants also filed a motion to limit the number of expert witnesses. In light of the court's rulings on this motion for summary judgment, the testimony of some of these experts may no longer be necessary. Accordingly, defendants' motion is DENIED at this time. The court, however, cautions the parties about presenting unnecessary, cumulative evidence. The court will revisit the issue of limiting the number of expert witnesses at the pretrial conference, or by motion, if raised by the parties. However, any ruling limiting the number of experts will not be on the basis of when depositions of the experts were taken.
So Ordered.