Khan v. St. Mary

NAZIR KHAN Plaintiff, v. PRESENCE ST. MARY AND ST. ELIZABETH HOSPITALS, et al., Defendants.

No. 20 C 3819

NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

November 17, 2020

Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Defendants Presence Chicago Hospitals Network d/b/a Presence Saints Mary and Elizabeth Medical Center ("Presence" or the "Hospital"), Laura Concannon, MD, Nora Byrne, JD, Norma Thornton, Thomas Malvar, MD, David Hines, MD, Ada Arias, MD, Raghu Ramadurai, MD, Ernesto Cabrera, MD, Olga Saavedra, MD, Michael Maghrabi, DPM, Alejandra Ditryk, RN, and the Board of Directors for Presence Saints Mary and Elizabeth Medical Center have filed a Motion to Dismiss Plaintiff's Amended Complaint. [Dkt. 50]. Defendants argue that this Court does not have subject matter jurisdiction and Plaintiff has failed to state a claim. Certain Defendants also argue that proper service has not been effected. For the reasons discussed below, the Court grants Defendants' Motion to Dismiss.

BACKGROUND

On a motion to dismiss under Rule 12(b)(6), the Court accepts the Complaint's well-pleaded factual allegations and draws all reasonable inferences in the non-moving party's favor, but not its legal conclusions. See Smoke Shop, LLC v. United States, 761 F.3d 779, 785 (7th Cir. 2014). The facts below come from Plaintiff's Amended Complaint (Dkt. 35) and the Court accepts them as true for purposes of reviewing this Motion. See Vinson v. Vermillion Cty., Ill., 776 F.3d 924, 925 (7th Cir. 2015).

Plaintiff has practiced cardiovascular and thoracic surgery since 1983. (Doc. 35 at 2). Plaintiff is a highly skilled and competent surgeon who can perform complicated cardiovascular and thoracic surgeries. (Id. at 2-3). In 1998, Plaintiff became a member of the medical staff at Saint Elizabeth's Hospital which later joined St. Mary Hospital as Presence Saints Mary and Elizabeth's Hospital in 2005 ("the Hospital"). (Id. at 3). In November of 2017, Dr. Khan alleges that Martin Judd, the CEO of the Hospital and Laura Concannon, M.D., Chief Medical Officer of the Hospital, formed a conspiracy to coerce him into taking a leave of absence from the Hospital. (Id. at 4, 8-9). Defendants Judd and Dr. Concannon acted in concert with two presidents of the medical staff, Dr. Ada Arias and Dr. Raghu Ramadurai, and the hospital attorney to remove Plaintiff. (Id. at 4). The intent of the conspiracy was to remove the Plaintiff from the medical staff so that the hospital could use its own radiologists to perform and charge for these endovascular procedures that Plaintiff was performing, therein removing competition from the other cardiovascular and thoracic surgeons on staff. (Id.).

On November 3, 2017, Judd and Dr. Concannon called Plaintiff into a meeting where Judd explicitly asked Plaintiff to resign from the medical staff. (Id. at 7). Plaintiff asked why he was being asked to resign and was told there was a "pattern," but without any specific details as to what the pattern was. (Id.). Judd and Dr. Concannon told Plaintiff to immediately sign a Leave of Absence letter, which Plaintiff did under duress. (Id.). The Leave of Absence was effective November 4, 2017. (Id.). Plaintiff alleges the Leave of Absence letter violated hospital bylaws because it did not state the approximate duration of the leave of absence. (Id. at 8). Additionally, pursuant to the alleged conspiracy, on November 17, 2017, the Medical Executive Committee(MEC) appointed an Investigative Committee pursuant to the hospital bylaws to address the quality concerns related to Dr. Khan's practice at the Hospital. (Id. at 7-8, 12). The Presence Quality Assurance Committee identified four surgical cases performed by Dr. Khan that raised clinical concerns, and identified clinical concerns related to a high infection rate, responsiveness to calls and pages, and case management trends. (Id. at 10-11). The MEC notified Plaintiff that he was required to get a neuro-psychological and a physical exam to address the clinical concerns from the Investigative Committee, which Dr. Khan refused to undergo, arguing there was no justifiable reason for him to proceed with the testing. (Id. at 12, 23). On December 7th, 2017, Plaintiff sent a letter asking that his six-month log of surgical cases be sent to an outside reviewer with respect to the evaluation of outcomes of surgery and infection rate. (Id. at 11). Dr. Khan's request for outside review was ignored. (Id.). Dr. Khan's privileges were voluntarily terminated on June 18, 2018. (Id. at 24).

Dr. Khan brings claims of Violation of Hospital Bylaws, Fraudulent Actions and Wrongful Termination of Plaintiff's Hospital Privileges, Violation of the Health Care Quality Improvement Act, Breach of Contract, Violation of the Federal Antitrust Laws, Violation of the Civil Rights Act of 1991, Defamation, and Mental Distress.

LEGAL STANDARD

A motion to dismiss for failure to state a claim challenges the sufficiency of the complaint. Berger v. National Collegiate Athletic Association, 843 F.3d 285, 289-90 (7th Cir. 2016). When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must construe the complaint in the light most favorable to the non-moving party, accept well-pleaded facts as true, and draw all inferences in the non-moving party's favor. Bell v. City of Chicago, 835 F.3d 736, 1146 (7th Cir. 2016). The complaint must contain a "short and plain statement of theclaim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A party need not plead "detailed factual allegations," but "labels and conclusions" or a "formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain sufficient factual matter that when "accepted as true . . . 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. 570). In assessing the sufficiency of the complaint, the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines whether they plausibly give rise to an entitlement to relief. Id.

Rule 12(b)(5) provides that a defendant may seek dismissal for "insufficient service of process." Fed.R.Civ.P. 12(b)(5). When a defendant challenges the sufficiency of service, the plaintiff bears the burden of demonstrating that proper service occurred. See Cardenas v. City of Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011); Homer v. Jones-Bey, 415 F.3d 748, 754 (7th Cir. 2005). The Court may consider affidavits, other documentary evidence, depositions, and oral testimony when considering whether summons was properly served. Dumas v. Decker, 10 C 7684, 2012 WL 1755674, *2 (N.D. Ill. May 16, 2012) (citing Falconer v. Gibsons Rest. Grp., LLC, 2011 WL 43023, at *1 (N.D. Ill. Jan.6, 2011 WL 43023); 5B Wright & Miller, Federal Practice and Procedure § 1353, at 344-45 (3d ed. 2004). Neither party requested an evidentiary hearing, so the motion will be resolved based on the parties' briefs and attached evidentiary materials.

DISCUSSION

I. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

Plaintiff has filed four complaints - his original complaint and three amended complaints. The Court granted his first amendment and the Complaint at issue was filed on August 24, 2020.In spite of warning that Court would not accept other amendments without leave of Court, Plaintiff filed two more amended complaints. Defendants argue that the only claims that may trigger the Court's Federal Question jurisdiction are the alleged violations of the federal antitrust laws, violations of HCQIA and the citation to the Civil Rights Act of 1981, but that Plaintiff has failed to state a claim under each statute. Defendants assert that since Plaintiff has not brought a federal claim, the remaining state law claims should be dismissed. The Court views Plaintiff's pro se pleadings liberally. See Taylor v. JPMorgan Chase Bank, N.A., 958 F.3d 556, 562 (7th Cir. 2020); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (a "document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") The Court has had experience with Kahn in a previous matter where he was sanctioned for his litigation conduct. See Khan et al. v. Hemosphere Inc., et al., No. 18-5368. Even viewing Plaintiff's claims liberally, his antitrust, HCQIA, and Civil Rights claims must be dismissed. The Court declines to exercise supplemental jurisdiction over Plaintiff's remaining state law claims.

A. Antitrust Claims

Plaintiff brings claims under Section 1 and Section 2 of the Sherman Antitrust Act for the loss of his clinical privileges at the Hospital.¹ There are three elements to a § 1 claim: "'(1) a contract, combination, or conspiracy; (2) a resultant unreasonable restraint of trade in the relevant market; and (3) an accompanying injury.'" Agnew v. Nat'l Collegiate Athletic Ass'n, 683 F.3d 328, 335 (7th Cir. 2012) (quoting Denny's Marina, Inc. v. Renfro Prods., Inc., 8 F.3d 1217, 1220 (7th Cir. 1993)). To satisfy the injury requirement, Plaintiff must allege that his "claimed injuriesare 'of the type the antitrust laws were intended to prevent' and 'reflect the anticompetitive effect of either the violation or of anticompetitive acts made possible by the violation.'" Tri-Gen Inc. v. Int'l Union of Operating Eng'rs, Local 150, 433 F.3d 1024, 1031 (7th Cir. 2006) (quoting Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)).

Plaintiff alleges that the loss of his clinical privileges are cognizable injuries under the Sherman Antitrust act, yet this conclusory assertion is insufficient to state an antitrust injury. Of the many deficiencies in Plaintiff's Complaint, the most...