Andrew v. Hamilton Cnty. Pub. Hosp.

960 N.W.2d 481

Mark H. ANDREW, Appellee,

v.HAMILTON COUNTY PUBLIC HOSPITAL d/b/a Van Diest Medical Center, Appellant.

No. 20-0023

Supreme Court of Iowa.

Submitted April 14, 2021

Filed June 4, 2021

David Bower (argued) and Frances M. Haas of Nyemaster Goode, P.C., Des Moines, for appellant.

Mark W. Thomas (argued) and Laura N. Martino of Grefe & Sidney, P.L.C., Des Moines, for appellee.

Oxley, J., delivered the opinion of the court, in which all justices joined.

OXLEY, Justice.

Hamilton County Public Hospital brings this application for interlocutory appeal from the district court's denial of its motion for partial summary judgment concerning Dr. Mark Andrew's defamation claim and his Iowa Wage Payment Collection Law claim. We granted the hospital's application to address the defamation claim in the context of reports the hospital made to the Iowa Board of Medicine and the National Practitioner Data Bank. As explained below, Dr. Andrew's defamation claim fails because the challenged portions of the reports are nonactionable opinions. His statutory wage claim fails because he did not perform work for which he was not paid. We reverse the district court and remand for entry of judgment for the hospital on both claims.

I. Background Facts and Proceedings.

Prior to the events leading to this litigation, Dr. Mark Andrew, a general surgeon, was employed by Hamilton County Public Hospital, operating as Van Diest Medical Center (VDMC). Dr. Andrew was hired in 2008 and had a contract with the hospital with three-year renewable terms. Despite the three-year-term provision, the contract could be terminated without cause upon ninety days’ notice and in some circumstances of cause, immediately. By 2016, then-CEO Lori Rathbun had been frustrated for some time with what she considered to be Dr. Andrew's overcompensation and underperformance. The hospital leased Dr. Andrew's services to another hospital, where he spent about fifty percent of his time. In the year before the concerns leading to this litigation were raised, Ms. Rathbun had also reduced Dr. Andrew's compensation twice because of low productivity, once in December 2015, and again in October 2016.

In November 2016, a pharmacy contacted VDMC's quality officer to express concerns about Vicodin (hydrocodone ) prescriptions one of Dr. Andrew's patients, T.C., was having filled. The pharmacy had attempted to contact Dr. Andrew multiple times, and he failed to return its messages. When a pharmacist was finally able to speak to him, the pharmacist was dissatisfied with his responses and contacted the hospital. The pharmacy was concerned by the large quantities prescribed and the frequency of refills. The patient's Prescription Monitoring Program (PMP)¹ report revealed dosage changes, switches between insurance payments and cash payments, different home addresses being used on prescriptions, and the patient's use of four different pharmacies to fill the prescriptions. Each of these factors raised red flags for the pharmacy and, upon its own investigation, for the hospital. The hospital discovered that other pharmacies had similar concerns about T.C.’s attempts to fill prescriptions and that one of the pharmacies listed T.C. on the Iowa Board of Pharmacy website. The hospital initially suspected T.C. had forged prescriptions, but a review of T.C.’s medical file revealed Dr. Andrew had prescribed the large quantity of pills.

Dr. Andrew treated T.C. over a four-year period, ultimately performing a bilateral orchiectomy (surgical removal of the testicles) in separate surgeries. The first was in September 2012, and the second was in October 2016, after T.C. rescheduled the surgery multiple times. Although chronic pain management is not generally part of a general surgeon's practice, Dr. Andrew prescribed approximately 11,940 Vicodin pills to T.C., who saw Dr. Andrew every two to four weeks for a total of ninety-seven documented visits over the four-year period. Despite T.C. having a separate primary care physician and receiving hip replacement and back surgery at other hospitals during this period, Dr. Andrew continued to prescribe pain medication to him.

As part of the hospital's internal investigation into the concerns raised by the pharmacy, Lisa Ridge, the hospital's chief nursing officer; Dr. Nicole Ehn, the hospital's medical director; and Dr. Scott Altman, an outside consultant previously hired by the hospital to help with personnel issues and creation of a peer review process, met with Dr. Andrew on December 8, 2016. At the meeting, Dr. Andrew admitted T.C.’s conduct related to filling his prescriptions was concerning, and he stated he discharged T.C. as a patient when he recently became aware of T.C.’s conduct the previous month. However, the notes from Dr. Andrew's November meeting with T.C. did not indicate he had discharged T.C. at that time. Dr. Andrew also admitted he did not use any type of pain management plan with T.C., nor did he refer T.C. to the on-site pain management specialist. When asked whether, in hindsight, he would have done anything differently, Dr. Andrew admitted he would have been more skeptical about T.C.’s rescheduling of surgery and would probably have used a PMP.

Following the December 8 meeting, Dr. Ehn wrote a report noting she had remaining concerns about Dr. Andrew's treatment of T.C., including the amount of narcotics prescribed, the length of time the prescriptions covered, and Dr. Andrew's failure to monitor the prescriptions. She further expressed concern over Dr. Andrew's decision to remove T.C.’s second testicle without seeking a second opinion. Finally, she noted the presence of "duplicate or multiple prescriptions" gave rise to the possibility that T.C. was "fraudulently manipulating prescriptions" or that "the physician was providing multiple, large quantity prescriptions."

Through the investigation related to T.C., the hospital discovered opioid prescriptions Dr. Andrew provided to another patient, L.H., over a two-year period that also raised concerns. Dr. Andrew performed multiple removals of a recurring cyst on L.H.’s leg between January 2014 and June 2015. Dr. Andrew continued prescribing pain medication through June 2016. However, L.H. did not engage in the same questionable conduct as T.C., who remained the hospital's primary concern.

On December 15, after the hospital's investigation was completed, Ms. Rathbun terminated Dr. Andrew's employment through the for-cause provision in his contract. Specifically, Ms. Rathbun identified concerns raised about the care Dr. Andrew provided to his patients as the reason for his termination. Ms. Rathbun maintained Dr. Andrew's termination was an administrative decision, and the parties agree Dr. Andrew never underwent a peer review process. Dr. Altman encouraged Ms. Rathbun to subject Dr. Andrew's treatment of T.C. to peer review, but Ms. Rathbun preferred to terminate Dr. Andrew's employment as an administrative termination.

As a result of what he learned from the investigation, Dr. Altman filed a report with the Iowa Board of Medicine (IBM). The report included a recitation of facts surrounding the investigation of T.C.’s prescriptions, the accuracy of which Dr. Andrew does not dispute. The report also included responses to a number of predefined questions, and it is Dr. Altman's answers that form the basis of Dr. Andrew's defamation claim.

One question asked, "What would you like the Iowa Board of Medicine to do about your complaint?" Dr. Altman stated, in relevant part, under the header "The Physician":

Volume of narcotic prescribing appears to be well beyond acceptable under any circumstances. It raises questions of marked naiveté, gross incompetence, and/or collusion with the patient for self-use, dealing, and/or distribution. Under any of those circumstances, should this physician's prescribing authority be reconsidered?

Could this be an impaired physician who needs intervention and help?

Non-emergent bilateral orchiectomy is generally not an endeavor to be taken without significant counsel and forethought. This case appears to vary significantly from standard of care and raises questions of clinical competency. Once again, is this a one-off, or fit a pattern. His surgical competency should be reviewed. Should this physician's surgical privileges be limited by the State?

Under the header "Other Potential Patients," Dr. Altman noted,

Is it possible for the Board of Medicine to query the Iowa (and potentially other State's) PMP by provider to see if this situation is a one-off – or a pattern of narcotic overprescribing? If other potentially at risk patients are identified[,] the hospital would like to know so medical and pain management services can be provided to those patients.

Dr. Altman filed a second report with the IBM related to L.H., reiterating his concerns that a pattern may exist and requesting the board assess Dr. Andrew. On April 20, 2018, the IBM released a confidential letter finding the complaints filed by Dr. Altman did not warrant disciplinary action.

Following Dr. Andrew's termination, Lisa Ridge filed a report with the National Practitioner Data Bank (NPDB), a national repository for certain information required to be reported about health care practitioners. The hospital believed it was required to report Dr. Andrew's for-cause termination. The contents of that report include only a factual recitation of Dr. Andrew's treatment of T.C., and Dr. Andrew does not dispute its accuracy. The NPDB report does not include any of the questions raised by Dr. Altman in his report to the IBM.

Dr. Andrew sued the hospital for wrongful termination, breach of fiduciary duty, and age discrimination, alongside defamation and libel. The hospital removed the case to federal court, where the court granted summary judgment in favor of the hospital on the age discrimination claim and remanded the remaining state law claims. Dr. Andrew amended his complaint once it was back in state court to add a...