Deming v. Jackson-Madison County Gen. Hosp. Dist.

553 F.Supp.2d 914

Wood M. DEMING, M.D.; Regional Cardiology Consultants, P.C., Plaintiffs, v. JACKSON-MADISON COUNTY GENERAL HOSPITAL DISTRICT, et al., Defendants.

No. 05-1032-T/An.

United States District Court, W.D. Tennessee, Eastern Division.

March 26, 2008.

COPYRIGHT MATERIAL OMITTED

Ralph Bard, Bard & Associates, Tullahoma, TN, Jonathan P. Lakey, Pietrangelo Cook, Memphis, TN, for Plaintiffs.

Jerry D. Kizer, Jr., Patrick Wayne Rogers, Dale Conder, Jr., Rainey Kizer Reviere & Bell, Jackson, TN, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT

JAMES D. TODD, District Judge.

Plaintiffs Wood M. Deming, M.D. and Regional Cardiology Consultants, P.C. filed a complaint on February 8, 2005 against the Jackson-Madison County General Hospital District ("JMCGHD"); West Tennessee Healthcare, Inc. ("WTH"); James ("Jim") Moss, who was at that time the President and Chief Executive Officer of WTH; Currie Sanders, General Counsel for WTH; Dean Currie, M.D.; James Ellis, M.D.; John Matthews, M.D.; Shawn Isaeff, M.D.; John Baker, M.D.; Charles Hertz, M.D.; R. Paul Caudill, M.D.; the American Medico-Legal Foundation, Inc. ("AMF"); Christopher Cates, M.D.; Joseph Garasic, M.D.; and Khusrow A.K. Niazi, M.D. In his complaint, Plaintiff alleges civil rights violations pursuant to 42 U.S.C. § 1983; specifically, he alleges that the Defendants violated his constitutional rights under the Due Process Clause and the Equal Protection Clause of the United States Constitution. Plaintiff also asserts antitrust claims under the Sherman Act, 15 U.S.C. § 1 et seq., claims under Tennessee law for breach of contract, business disparagement and defamation, tortious interference with business relationships, violation of the Tennessee Consumer Protection Act, Tenn.Code Ann. § 47-18-101 et seq., intentional infliction of emotional distress, and civil conspiracy.

The Defendants have filed a motion to dismiss and/or for summary judgment. (Docket Entries #47-#48.) The Plaintiffs responded to the motion (D.E. # 84) and Defendants were permitted to file a reply. (D.E. # 101.) For the reasons set forth below, the Defendants' motion is GRANTED.

Motions for summary judgment are governed by Fed.R.Civ.P. 56. If no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Fed.R.Civ.P. 56(c). The moving party may support the motion for summary judgment with affidavits or other proof or by exposing the lack of evidence on an issue for which the nonmoving party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party may not rest upon the pleadings hut must go beyond the pleadings and "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548.

"If the defendant ... moves for summary judgment ... based on the lack of proof of a material fact, ... [t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, the Court's function is not to weigh the evidence, judge credibility, or in any way determine the truth of the matter but only to determine whether there is a genuine issue for trial. Id. at 249, 106 S.Ct. 2505. Rather, "[t]he inquiry on a summary judgment motion ... is ... `whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter of law.'" Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (quoting Liberty Lobby, 477 U.S. at 251-52, 106 S.Ct. 2505). Doubts as to the existence of a genuine issue for trial are resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

Plaintiff Deming is an interventional cardiologist and the sole owner of Plaintiff Regional Cardiology Consultants, a professional corporation. He contends that the Defendants wrongfully revoked his privileges to perform peripheral vascular studies/interventions ("PVI") at JMCGHD in order to protect their own economic interests. According to Deming, the Defendants contrived to conduct a sham peer review process during the course of which they accused him of performing unnecessary PVI procedures, thereby creating the false impression that he was a threat to patients.

The undisputed facts are as follows. In December 2000, as authorized by the JMCGHD Medical Staff Bylaws, JMCGHD's Medical Executive Committee ("MEC") created the PVI Subcommittee. The stated purpose of the PVI Subcommittee was to develop criteria for credentialing physicians to perform PVI procedures at JMCGHD.¹ The first meeting of the PVI Subcommittee was held on December 19, 2000, at which time its duties and responsibilities were approved; no cardiologist had yet been granted PVI privileges. One of the committee's objectives was to review the first twenty-five PVI cases of all physicians who were granted new PVI privileges. (Dr. Currie Aff. ¶¶ 4-6; Defs.' Ex. C, Mins. 12/19/00 Mtg.) On February 27, 2001, Deming's application for PVI privileges was approved. (Dr. Currie Aff. ¶ 7.)²

At a meeting of the PVI Subcommittee on April 26, 2002, Dr. John Shaw, who was then JMCGHD's Chief of Medical Staff, appointed Defendant Dr. Currie as Chairman and Defendant Dr. Ellis as Vice Chairman. Defendants Dr. Matthews, Dr. Isaeff, Dr. Baker, and Dr. Caudill were also members of the PVI Subcommittee.³ The Subcommittee discussed the procedure for reviewing the first twenty-five cases of new physicians granted PVI privileges, as well as the need to develop criteria for appropriateness of the PVI procedures, expected complications and other matters. (Dr. Currie Aff. ¶ 9; Defs.' Ex. E, Mins. 4/26/02 Mtg.) At a subsequent meeting on May 30, 2002, the PVI Subcommittee discussed that the credentialing criteria required not only review of a physician's first twenty-five PVI cases, but also periodic re-evaluation with closer review if the success rate was less than 85% or the complication rate greater than 5%. (Dr. Currie Aff. ¶ 10; Defs.' Ex. F, Mins. 5/30/02 Mtg.)

The PVI Subcommittee met again on August 27, 2002 and began discussing Plaintiffs⁴ first twenty-five PVI cases.⁵ The minutes of that meeting state, "[d]ocumentation is a problem in most of these cases so it is difficult to know exactly what was done and why. Over utilization appears to be a possibility." (Defs.' Ex. I, Mins. 8/27/02 Mtg.; Dr. Currie Aff. ¶ 13.) It was noted that documentation of indications for the PVI procedures and results was lacking in the majority of Plaintiffs cases; therefore, the PVI Subcommittee determined that a letter should be sent to Plaintiff expressing those concerns. Id.

On or about September 12, 2002, Plaintiff received a letter from Dr. Currie setting forth the PVI Subcommittee's concerns that, in thirteen of the twenty-five cases, there was "a lack of written documentation of clinical findings justifying the performance of the procedure, a lack of radiographic documentation of the findings, or both." (Defs.' Ex. J, letter from Dr. Currie; Dr. Currie Aff. ¶ 14.) Dr. Currie further advised Plaintiff that the Clinical Process Improvement ("CPI") team would review all vascular studies, not merely the first twenty-five for each physician for "appropriateness of procedure" and that if any "physician were found to fall outside the accepted indications for performing visceral or peripheral arteriogram or angioplasty, that physician would risk loss of [PVI] privileges." Id.

On September 20, 2002, the PVI Subcommittee met and recommended that Dr. Currie report to the MEC its concerns about the PVI procedures and ask the MEC to authorize an Investigative Committee. It was further recommended that the cases of the three physicians in the first group, including Plaintiff Deming, be sent for independent review "due to a high complication rate and poor judgment in patient selection for one physician reviewed and poor documentation and lack of indications for all physicians." (Defs.' Ex. K, Mins. 9/20/02 Mtg.; Dr. Currie Aff. ¶ 15.)

The MEC received the PVI Subcommittee's report at its October 14, 2002 meeting. Dr. Currie reported the concerns about the PVI cases reviewed by the PVI Subcommittee and recommended both an investigation and an independent, outside review of the cases. Dr. Shaw, the Chief of Staff, agreed with those recommendations. The MEC then passed a formal resolution authorizing the formation of an Ad Hoc Investigative Committee made up of three individuals⁶ and also authorizing that Investigative Committee to use outside consultants for an external review of the PVI cases. (Defs.' Ex. L, Mins. 10/14/02 Mtg.; Dr. Currie Aff. ¶ 16.) In executive session following the MEC's regular meeting on November 12, 2002, it was reaffirmed that the records of all three physicians in that first group to complete twenty-five PVI cases, which included Plaintiff, would be sent for external review. (Defs.' Ex. M, Mins. 11/12/02 Mtg.)

In accordance with the authorization by the MEC, Plaintiffs first twenty-five PVI cases were sent to Defendant AMF⁷ for an outside, independent peer review, as were the cases of the other two physicians in that first group. AMF is a consulting agency for hospital peer review that retains consultants to provide independent peer review evaluations. In this instance, AMF retained Defendants Dr. Cates, Dr. Garasic and Dr. Niazi, all interventional cardiologists, to perform the independent peer review of the PVI cases. (Dr. Currie Aff. ¶ 18.)

On October 30,...