Opinion
No. HHB CV 02-0516962-S
August 20, 2007
RULING ON POST-VERDICT MOTIONS
I. PLAINTIFF'S MOTION FOR INJUNCTIVE RELIEF
In his complaint, the plaintiff, Stephen Harris, M.D., requests monetary and injunctive relief against the defendant, Bradley Memorial Hospital and Health Center, Inc., arising out of its summary suspension, on February 13, 2001, of his privileges to admit patients for surgery. After a trial, the jury, having heard the legal and monetary claims, returned a verdict in the plaintiff's favor in the amount of $250,000 plus punitive damages in an amount to be determined by the court.
The permanent injunction claim was tried to the court concurrently. The prayer for injunctive relief seeks a permanent injunction requiring the defendant to cease and desist the termination of the plaintiff's medical privileges and any interference with the plaintiff's patient relationships. For the reasons stated below, the court denies the request for a permanent injunction.
The plaintiff withdrew a request for a temporary injunction. The federal Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq., which the defendant raised as an immunity defense to the claims for damages, does not provide immunity from requests for injunctive relief. See Sugarbaker v. SSM Health Care, 190 F.3d 905, 918 (8th Cir. 1999), cert. denied, 528 U.S. 1137, 120 S.Ct. 980, 145 L.Ed.2d 931 (2000).
I
At the outset, the defendant suggests that the request for a permanent injunction is moot. On June 28, 2005, the plaintiff entered into a consent order with the state department of public health in which the plaintiff did not contest an order prohibiting him from performing "any surgical procedure in any setting unless and until the Department has approved an application from [the plaintiff] to resume surgical practice." (Ex. 22.) The plaintiff testified in a deposition that he has no plans to practice as a surgeon again. Thus, the defendant's actions in suspending the plaintiff's surgical privileges are not the present cause of his inability to practice in this specialty. Based on that theory, the plaintiff would not be not entitled to injunctive relief concerning his surgical practice. See Wallingford v. Werbiski, 274 Conn. 483, 494, 877 A.2d 749 (2005).
The plaintiff also relies on the fact that the defendant sent a report of the 2001 summary suspension to the National Practitioner Data Bank and that this report allegedly continues to harm his ability to affiliate with other hospitals or receive referrals of patients in his new practice of rehabilitative medicine. The defendant does not document whether it sent a report to the data bank of the plaintiff's permanent suspension in 2002 which, as explained below, the plaintiff has not challenged in this case. In the absence of such documentation, the court cannot say that the 2001 report could not damage the plaintiff in the ways alleged. Accordingly, the court finds that the matter is not moot.
II A
The court nonetheless denies the request for injunctive relief on the merits. The court is mindful that the jury found the defendant to have breached its contract with the plaintiff, violated the covenant of good faith and fair dealing, tortiously interfered with his business expectancies, and acted with the intent to injure or in reckless disregard of the plaintiff's rights. However, on this request for injunctive relief, the court is the finder of fact, and the court views the evidence differently. See Practice Book § 16-11 ("A case presenting issues both in equity and law may be claimed for the jury list, but, unless the judicial authority otherwise orders, only the issues at law shall be assigned for trial by the jury").
As detailed later, the court sees no evidence to support the finding that the defendant acted with the intent to injure or in reckless disregard of the plaintiff's rights.
On the breach of contract count, which is based on a violation of the hospital's bylaws, the court does not review the alleged breach de novo. Rather, pursuant to Owens v. New Britain General Hospital, 229 Conn. 592, 643 A.2d 233 (1994), the court must determine whether the hospital was in "substantial compliance" with the bylaws. Id., 602-08. Under the substantial compliance test, the "exercise of . . . discretion [by the hospital's staff and administration] should be subject only to limited judicial surveillance . . ." Id., 606. "Courts are generally unwilling to substitute their judgment on the merits for the professional judgment of medical and hospital officials with superior qualifications to make such decisions." (Internal quotation marks omitted.) Id. The "prevailing standard for judicial review of the findings of a private hospital in decisions affecting medical staff privileges is also consistent with the level of evidence necessary upon judicial review to support a decision by an administrative agency." Id., 607, n. 27. In this context, the Owens court cited Straube v. Emanuel Lutheran Charity Board, 287 Ore. 375, 384, 600 P.2d 381 (1979), cert. denied, 445 U.S. 966, 100 S.Ct. 1657, 64 L.Ed.2d 242 (1980), for the proposition that a "court must uphold [a] hospital board's decision to discipline [a] physician so long as reasonable procedures were followed and evidence exists from which the hospital board could have found that [the] physician's conduct posed [a] threat to patient's care." Owens v. New Britain General Hospital, supra, 607-08 n. 27.
Although the plaintiff has claimed that the defendant violated the bylaws by summarily suspending his privileges without affording him fair procedures, there are no bylaws that require any particular procedure prior to a summary suspension. Nevertheless, despite the lack of any requirement to do so, the defendant informed the plaintiff in the fall, 2000, that an independent peer review of his performance would take place. The defendant notified the plaintiff in December 2000, that the review was negative and provided him a copy of Dr. Randolph Reinhold's preliminary report. The hospital advised the plaintiff that it would then assemble an ad hoc peer review panel of three surgeons to look at a greater number of cases. The hospital provided the plaintiff short notice of the meeting of this ad hoc panel on January 29, 2001, and heard him address their concerns for several hours at that meeting. (Ex. C, p. 5; testimony of plaintiff, Dr. Scoppetta.) Thus, the defendant gave the plaintiff far more process than he was due.
The plaintiff did not present any evidence that the contract between the plaintiff and the defendant included any rules or guidelines for summary suspension beside those in the bylaws.
The plaintiff repeatedly alleged and argued that the defendant denied the plaintiff a due process right to notice and an opportunity to be heard. The due process clause, however, does not apply to the actions of a private hospital such as the defendant. See Owens v. New Britain General Hospital, supra, 229 Conn. 602 n. 24. Indeed, even in publicly-owned hospitals, a physician has no due process right to notice and an opportunity to be heard before a temporary suspension based on the need to protect patient safety. See Braswell v. Haywood Regional Medical Center, 2007 WL 1227464 (4th Cir. 2007); Patel v. Midland Memorial Hospital Medical Center, 298 F.3d 333, 339-41 (5th Cir. 2002). The plaintiff also made these claims under the misguided belief that he had a cause of action under the Health Care Quality Improvement Act (the federal act), 42 U.S.C. § 11111 et seq. The uniform decision of the courts, however, is that the federal act creates a form of qualified immunity for hospitals if they follow certain procedures, particularly in non-summary hearings, but does not create a right of action for physicians challenging the hospital's professional review action. See, e.g., Hancock v. Blue Cross-Blue Shield of Kansas, Inc., 21 F.3d 373, 374-75 (10th Cir. 1994); Untracht v. Fikri, 454 F.Sup.2d 289, 327 (W.D.Pa. 2006). Further, the provisions of the federal act regarding summary suspension require only subsequent, rather than prior, notice and hearing. 42 U.S.C. § 11112[c](2). The defendant contributed to the confusion by failing to move to strike or for summary judgment on the plaintiff's affirmative claims under the federal act until the eve of trial.
The only bylaw provision applicable to the summary suspension in this case is Article V, section I.A, which provides that "[t]he Executive Committee of either the Medical Staff or the Governing Body shall have the right to summarily suspend the admitting and/or clinical privileges of a practitioner, upon a determination that action must be taken immediately in the best interest of patient care in the hospital or when there is a potential immediate risk to the well being of patients, employees or visitors." (Ex. 17, p. 8.) In this case, the defendant summarily suspended the plaintiff's privileges as a result of a decision by the defendant's medical executive committee. The minutes of the February 13 medical executive committee meeting (Ex. 25), as well as a letter sent to the plaintiff notifying him of the suspension (Ex. 21), reveal that the decision of the committee rested on reports by Dr. Randolph Reinhold (Ex. A) and the ad hoc peer review committee report written by Drs. Jack Huse, John Russell, and Daniel Scoppetta (Ex. D).
B
The court credits the following facts, which were the subject of much dispute at trial. The November 7, 2000 report of Dr. Reinhold, who was chairman of the department of surgery at Saint Raphael Hospital in New Haven and a clinical professor of surgery at Yale Medical School, reviewed twenty of the plaintiff's cases from January 13, 1998 to September 6, 2000. Dr. Reinhold found that twelve of the twenty cases demonstrated "evidence of error in surgical technique and/or management," nine of which led to "significant adverse outcome including death." Dr. Reinhold concluded: "If this sample is representative of the surgeon's clinical practice, I would conclude this pattern of surgical errors and complications is widely deviant from accepted standards of surgical care." (Ex. A.)
The ad hoc peer review committee consisted of Dr. Huse, a former chairman of the Department of Surgery at the Midstate Medical Center, Dr. Russell, Chief of Surgery at New Britain General Hospital, and Dr. Scoppetta, chief of staff at Bristol Hospital. The committee reviewed thirty-three pre-selected cases, which included the cases in which Dr. Reinhold found complications. The committee concluded that twenty-six of these cases were "problematic."
The following are examples of the committee's findings in individual cases:
"The Committee was concerned that there was nothing on this patient's inpatient chart providing objective evidence of appendicitis, and thus an indication to perform an appendectomy." (Ex. D, p. 5.) "This is a case of delayed diagnosis. When no anatomy could be defined on the initial [surgery] there was no attempt by Dr. Harris to proceed at that time with either a percutaneous trans-hepatic choliangiogram or an intraoperative evaluation." (Ex. D., p. 6.) "The patient's postoperative death [after a standard Whipple type procedure] on day 12 appeared to be a direct result of Dr. Harris' surgical procedure and poor surgical care." (Ex. D, p. 14.) [Despite a pathology report on an operating room specimen from the spleen,] "[t]here is nothing in the operative note to suggest any injury to the spleen, or that a splenectomy was performed . . . Dr. Harris stated that the omission of the splenectomy from his operative note was an inadvertent oversight." (Emphasis in original.) (Ex. D, p. 8.)
The ad hoc committee's ultimate findings were as follows: "Intraoperative decision-making and postoperative management by Dr. Harris seemed to be suspect in a wide range of cases. The progress notes did not correlate with the patient's course, as reflected by notes from other observers, such as consultants involved in the patient's care, objective data such as abnormal laboratory studies, or subsequent patient events. Even in cases where patients were clearly deteriorating, the progress notes reflected that the [patients] were unchanged or perhaps improving until a very catastrophic event occurred. When Dr. Harris' progress notes indicated that the patient may not be doing well, there often did not seem to be adequate recognition of the severity of the patient's problems, development of an appropriate differential diagnosis for the cause of the problems, or initiation of a timely plan to diagnose and manage these problems.
"These global deficits are not readily correctable by targeted educational interventions, restriction of privileges, or direct supervision of his practice. The problem cases included major and minor surgical cases, and spanned a wide range of general surgical practice such as pancreatico-biliary disease (benign and malignant), colon disease, hernias, and lymph node biopsies, and amputations. Both open and laparoscopic surgical procedures were involved. All facets of surgical care, including preoperative assessment, the timing of surgery, intraoperative decision-making and technique, and postoperative care had identified instances of significant deficiency. Remediation would require either prolonged direct supervision of all phases of his surgical practice at Bradley Memorial Hospital (including intra-operative and postoperative care), or additional senior-resident training in an approved academic general surgical residence program." (Emphasis in original.) (Ex. D, pp. 24-25.)
The ad hoc committee reached the following conclusion: "Based on this chart review, the committee felt that the overall surgical care provided by Dr. Stephen Harris during the period of time reviewed did not meet the standard of care expected of a board certified general surgeon. The committee questions the ability of Dr. Harris to safely function independently as a general surgeon at Bradley Memorial Hospital at this time." (Ex. D, pp. 25-26.)
Based on the reports of Dr. Reinhold and the ad hoc committee, the medical executive committee of the hospital, consisting of some seventeen physicians, approved a motion on February 13, 2001 to summarily suspend the plaintiff's privileges. (Ex. 25.)
C
The plaintiff claims in his post-trial brief that the approximately four-month time period from the time of Dr. Reinhold's review to the February 13 action establishes that there was no emergency that would justify summary suspension. Ironically, at trial, the plaintiff challenged the completeness of the information relied upon by the ad hoc committee and suggested, at least implicitly, that the committee should have taken more time to review additional cases or materials. The plaintiff's position that the committee's delay belies a finding of imminent danger is, of course, fundamentally inconsistent with his contention that the committee should have conducted a more thorough investigation. The court finds that the time lapse was simply the product of thorough and careful review by the hospital. See Lee v. Trinity Lutheran Hospital, 408 F.3d 1064, 1066-68 (8th Cir. 2005) (summary suspension after investigation lasting more than one year).
The ad hoc committee relied on the fact that the plaintiff had performed 166 major surgery procedures over the period from 1998 through 2000 as well as 147 minor surgeries from October 1999 to December 2000. The plaintiff presented information at trial showing that the plaintiff had performed a total of 551 procedures in 1997 and 1998. These figures are hard to compare because they cover different time periods. But even if the plaintiff were correct in suggesting that he performed well over 500 surgeries between 1998 and 2000, the committee's finding that twenty-six of these surgeries were problematic during that period reveals a high rate of error based on a denominator of three years. Moreover, these problem cases were not confined to one type of procedure, but rather "included major and minor surgical cases[,] . . . spanned a wide range of general surgical practice . . . [and involved] [b]oth open and laparoscopic surgical procedures . . . [and] [a]ll facets of surgical care . . ." (Ex. D, p. 25.)
Although the plaintiff claimed at trial that the committee should also have considered the minutes of the department of surgery's morbidity and mortality meetings, in which they discussed some of the plaintiff's cases, the testimony established that these discussions served primarily an educational purpose, and the committee observed that: "[the plaintiff's] global deficits are not readily correctable by targeted educational interventions, restriction of privileges, or direct supervision of his practice." (Ex. D, p. 25.)
Further, the committee needed only enough evidence to support a summary suspension, which equates to a temporary suspension pending a full hearing, rather than a permanent suspension. There was certainly enough concern stemming from twenty-six problematic surgeries in three years to support the defendant's decision to suspend the plaintiff's privileges temporarily and then conduct a full investigation of the matter. The sole issue in reviewing that decision is whether the hospital substantially complied with the bylaw provision requiring a finding that it make a "determination that action must be taken immediately in the best interest of patient care in the hospital or when there is a potential immediate risk to the well being of patients, employees or visitors." (Ex. 17, p. 8.) The hospital made that determination, particularly insofar as it relied on the ad hoc peer review committee's finding that questioned "the ability of Dr. Harris to safely function independently as a general surgeon at Bradley Memorial Hospital at this time." (Ex. D, p. 26.) Because the only bylaw at issue was essentially a substantive one that related to the quality of care rendered by the plaintiff, it is especially appropriate for this court to defer to "the professional judgment of medical and hospital officials with superior qualifications to make such decisions." (Internal quotation marks omitted.) Owens v. New Britain General Hospital, supra, 229 Conn. 606.
Prior to trial, the court accepted the plaintiff's characterization of this case as one focusing on procedural rights. While it is true that this case is not a malpractice action, the trial revealed that the plaintiff has otherwise mischaracterized the case. In reality, this case is not about procedural aspects of the summary suspension proceedings because, as discussed above, there are no procedural rules applicable to summary suspensions by the defendant. Rather, the unacknowledged purpose of the plaintiff's trial strategy was to show that the medical executive committee did not have a complete, reliable, or fair basis to conclude under the bylaws that suspension "must be taken immediately in the best interest of patient care in the hospital." (Ex. 17, p. 8.) This standard is entirely one addressing the quality of care rendered by the plaintiff rather than any procedural concerns. Thus, much deference is due the findings of the medical professionals who reached a substantive, medical determination that the defendant should summarily suspend the plaintiff's surgical privileges.
D
The plaintiff asked for and received a full review hearing. While this review hearing process was not the exact equivalent of litigating a case in Superior Court — a fortunate result insofar as this case is now five years old — the review panel met on five occasions over a five-month period. The panel consisted of a pathologist, a radiologist, and a board member from the defendant. Both sides were represented by counsel, the proceedings were recorded, both sides presented opening statements, exhibits, and testimony under oath, including that of the plaintiff and his expert witness, and both sides submitted post-hearing memoranda.
Although the plaintiff, as discussed infra, did not seek in this case to overturn the results of the review hearing, the plaintiff did present evidence at trial that he did not have a full opportunity at the review hearing to subpoena or examine several witnesses or to submit additional records of his cases. The plaintiff, however, did not object on these grounds at the review hearing. Indeed, at the review hearing the plaintiff presented an expert witness, Dr. Vincent Donnelly, president of the medical staff and chief of surgery at St. Vincent's Hospital in Bridgeport, who later testified at the trial that he had sufficient information at the review hearing to form an opinion based on the charts that the summary suspension committee considered and that he did not want to be "biased" by looking at some of the very materials the plaintiff now states the committee should have seen. (Cross-examination of Dr. Donnelly.) As the review panel noted, "the hearings before the [review] Hearing Panel have afforded Dr. Harris ample opportunity to refute the concerns expressed in every case considered by the outside reviewers and the Medical Executive Committee." (Ex. C, p. 8.)
The review panel submitted a twelve-page report on or about January 30, 2002, which the president of the hospital accepted on February 27, 2002. The review panel described its task as determining "whether or not the summary suspension of Dr. Harris's surgical privileges was unreasonable, not sustained by the evidence or otherwise unfounded." (Ex. C, pp. 6-7.) The panel found that "in a number of cases, patients in relatively stable health would be admitted to Bradley Memorial [Hospital] for surgical procedures to be performed by Dr. Harris, only to experience significant intraoperative and postoperative complications that were, in many instances, life threatening or fatal." (Ex. C, p. 9.) The panel "noted a trend of documentation deficiencies relating to a failure to adequately document the reasons justifying the need for extensive surgery in some patients and inadequacies in explaining the surgical plan for some patients or the need to go beyond the surgery originally planned." (Ex. C, p. 10.) The panel was "most concerned by the testimony of Dr. Harris himself, in which he stated that he disagreed with all of the criticisms and concerns with regard to his standard of care . . . Dr. Harris's categorical denial of any problems in that regard demonstrates a lack of insight into the seriousness of the concerns that were raised." (Ex. C, p. 11.) On the basis of these and other findings, the panel concluded that "the summary suspension of Dr. Harris's surgical privileges was reasonable, sustained by the evidence and properly supported." (Ex. C, p. 11 .)
The plaintiff then appealed to the board of directors, which rejected the appeal on or about September 30, 2002.
The panel did note that "Bradley Memorial and the medical staff could have taken steps to communicate more clearly with Dr. Harris regarding the quality of his performance prior to the commencement of formal Bylaw proceedings." (Ex. C, p. 8.)
The plaintiff has not challenged the result of this subsequent review hearing. As Judge Burke found in granting the defendant's first summary judgment motion as to the subsequent review proceedings, the plaintiff "does not make any specific allegations of procedural deficiencies during the later proceedings" and "the plaintiff did not present specific evidence demonstrating that [the professional review actions subsequent to the summary suspension] failed to satisfy the statutory criteria [under the federal Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq.]." (Ruling on Motion for Summary Judgment, May 19, 2005, pp. 10, 13.) While the plaintiff questioned Judge Burke's ruling during and after the trial, this court's review of the file confirms its validity. Further, Judge Burke's ruling is the law of the case. See Johnson v. Atkinson, 283 Conn. 243, 249-50, 926 A.2d 656 (2007).
The defendant's review of the summary suspension, which considered whether the summary suspension was reasonable, sustained by the evidence, and properly supported, is indistinguishable from the review that the court must make under the substantial compliance standard. Cf. Owens v. New Britain General Hospital, supra, 229 Conn. 607-08 n. 27 (citing Straube v. Emanuel Lutheran Charity Board, supra, 287 Ore. 384, for the proposition that a "court must uphold hospital board's decision to discipline physician so long as reasonable procedures were followed and evidence exists from which the hospital board could have found that physician's conduct posed threat to patient's care"). Given that the review panel approved the summary suspension after reviewing essentially the same evidence and applying the same standards as would the court, and that the plaintiff has not challenged the review panel's conclusion here, it would be highly inappropriate for this court to reach a different decision. For this court to do so would amount to substitution of its own judgment on the merits for the professional judgment of medical and hospital officials with superior qualifications to make such decisions, contrary to the rule in Owens. Id., 606. Accordingly, as trier of fact, the court finds that the plaintiff has not proven a breach of contract for purposes of obtaining injunctive relief.
III
Because the defendant did not breach the contract, there can be no valid cause of action for breach of the implied covenant of good faith, as alleged in count two. See Landry v. Spitz, 102 Conn.App. 34, 47, 925 A.2d 334 (2007). Similarly, because the defendant acted in compliance with the bylaws in summarily suspending the plaintiff's privileges, there was ample justification for its actions in interfering with the plaintiff's patient relationships. Thus, the plaintiff is not entitled to any additional relief under count three, alleging tortious interference with business expectancies. See Daley v. Aetna Life Casualty Co., 249 Conn. 766, 805-06, 734 A.2d 112 (1999). Accordingly, the plaintiff's request for injunctive relief is denied.
In view of this decision, the court does not reach the other grounds for denial of injunctive relief asserted by the defendant.
II. PLAINTIFF'S MOTION FOR PUNITIVE DAMAGES
The jury awarded attorneys fees and costs to the plaintiff on the third count of intentional interference with business expectations. The court ruled at trial, based on the plaintiff's request, that it would determine the amount of any attorneys fees awarded by the jury. The plaintiff seeks an award of $456,678.74 in attorneys fees and $53,068.03 in costs.
The defendant raises a number of challenges to the plaintiff's request. Among them is the claim that there was insufficient evidence to support the finding that the defendant acted with the intent to injure, or in reckless disregard of the plaintiff's rights. The court resolves this claim in favor of the defendant in response to the defendant's motion for judgment notwithstanding the verdict. Because, for the reasons stated in that portion of this opinion, there is insufficient evidence to support the jury's finding that the plaintiff is entitled to punitive damages, the court denies the plaintiff's motion for punitive damages. In addition, the court, for the reasons also explained below, grants the defendant's motion for judgment notwithstanding the verdict in its entirety based on the favorable termination doctrine. In view of this decision, there is no need to reach the other grounds for denial of the motion for punitive damages asserted by the defendant.
In sum, the other grounds are: 1) the plaintiff's motion is procedurally improper because he did not present evidence of his expenses at trial; 2) plaintiff has failed to prove which of his expenses are related to the summary suspension as opposed to other proceedings involving the parties; 3) the amount of fees and expenses demanded is unreasonable; and 4) plaintiff has failed to prove that he actually incurred the expenses claimed and billed. The court will comment only on the first of these additional grounds. The court rejects the defendant's claim that the plaintiff should have submitted evidence of its litigation expenses to the jury. As stated above based on the plaintiff's request the court ruled that, while plaintiff's entitlement to punitive damages should be determined by the jury, the amount of any punitive damages should be determined by the court.
III. DEFENDANT'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
At the conclusion of the plaintiff's case, the defendant moved for a directed verdict. The court granted the motion with respect to count four, which alleged violations of the Connecticut Unfair Trade Practice Act; General Statutes § 42-110a et seq.; and reserved decision on the remainder of the motion. In this situation, the "judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion." Practice Book § 16-37.
The defendant now renews these claims by way of a motion for judgment notwithstanding the verdict. The applicable standard is the same as the standard for directed verdicts. See Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416 (2001). "A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict." (Internal quotation marks omitted.) Wilson v. Jefferson, 98 Conn.App. 147, 153, 908 A.2d 13 (2006).
The defendant raises five grounds for its motion: 1) the defendant is immune under the summary suspension provisions of the federal act; 2) the plaintiff's action is barred by the favorable termination doctrine; 3) the plaintiff's entry into a consent order with the department of public health acts as a collateral estoppel bar to this action; 4) there was insufficient evidence that the defendant did not substantially comply with the bylaws applicable to summary suspension; and 5) there was insufficient evidence that the defendant tortiously interfered with the plaintiff's business expectancies or acted with the intentional design to injure the plaintiff or with reckless indifference as to whether it would injure him. The court grants the motion based on the favorable termination doctrine. In addition, the court finds that, while there was sufficient evidence that the defendant tortiously interfered with the plaintiff's business expectancies, there was insufficient evidence to support the jury's finding that the defendant acted in intentional or reckless disregard of the plaintiff's rights. In view of these conclusions, there is no need to address the other claims raised by the defendant, except as noted below.
42 U.S.C. § 11112[c](2) ("[N]othing in this section shall be construed as — precluding an immediate suspension or restriction of clinical privileges, subject to subsequent notice and hearing or other adequate procedures, where the failure to take such action may result in an imminent danger to the health of any individual.") See note 4 supra. The defendant contends that the court should determine as a matter of law whether the defendant reasonably believed that it was in compliance with this section. See, e.g., Gureasko v. Bethesda Hospital, 116 Ohio.App.3d 724, 732, 689 N.E.2d 76 (1996), cert. denied, 78 Ohio St.3d 1467, 678 N.E.2d 223 (1997). This issue is admittedly a difficult one. The court does not reach it for the reasons stated above.
The defendant first raised the favorable termination claim in a motion in limine and a motion for summary judgment filed on the eve of trial. The court denied both motions on procedural grounds. The defendant renewed the claim in its motion for directed verdict filed at the close of the plaintiff's case. In view of the decision reached today, it is regrettable that the defendant did not raise this issue earlier in the five-year history of this case.
The court granted the plaintiff's motion for a directed verdict on the collateral estoppel defense at trial and it reaffirms that decision now. The plaintiff essentially pleaded no contest to the department's charges, and thus did not actually litigate the matter. See CT Page 14622 Rawling v. New Haven, 206 Conn. 100, 111, 537 A.2d 439 (1988). Further, the department considered only the cases of twelve patients, thus negating the identity of the issues with those in this trial. See Alexandru v. Strong, 81 Conn.App. 68, 76, 837 A.2d 875, cert. denied, 268 Conn. 906, 845 A.2d 406 (2004). For those reasons, collateral estoppel does not apply in the manner argued by the defendant. The defendant does not raise the claim that the now uncontested 2002 hospital review board decision, which followed a full and fair administrative hearing involving the same parties and issues as in the case at bar, acted as a collateral estoppel bar to this trial. See Carothers v. Capozziello, 215 Conn. 82, 94-95, 574 A.2d 1268 (1990) (collateral estoppel applies to administrative proceedings); Owens v. New Britain General Hospital, supra, 229 Conn. 607-08 n. 27 (hospital peer review proceedings are analogous to administrative hearings).
I A
In its original form, the favorable termination doctrine required the plaintiff in a malicious prosecution or vexatious litigation suit to allege and prove that "[an] original action, whether civil or criminal, was instituted without probable cause, with malice, and that it terminated in [the plaintiff's] favor." (Internal quotation marks omitted.) Norse Systems, Inc. v. Tingley Systems, Inc., 49 Conn.App. 582, 600, 715 A.2d 807 (1998). "A vexatious suit is a type of malicious prosecution action, differing principally in that it is based upon a prior civil action, whereas a malicious prosecution suit ordinarily implies a prior criminal complaint." (Internal quotation marks omitted.) Hebrew Home Hospital, Inc. v. Brewer, 92 Conn.App. 762, 766, 886 A.2d 1248 (2005).
Two concerns underlie the traditional requirement of "successful" or "favorable termination." "The first is the danger of inconsistent judgments if defendants use a vexatious suit or malicious prosecution action as a means of making a collateral attack on the judgment against them or as a counterattack to an ongoing proceeding . . . The second is the unspoken distaste for rewarding a convicted felon or otherwise `guilty' party with damages in the event that the party who instituted the proceeding did not at that time have probable cause to do so . . . Thus, an underlying conviction is recognized in this state as conclusive proof that there was probable cause for the charges unless it is proven that the conviction was obtained through fraud, duress or other unlawful means." (Emphasis in original; internal citations omitted.) DeLaurentis v. New Haven, 220 Conn. 225, 251-52, 597 A.2d 807 (1991).
Our appellate courts have now applied the favorable termination doctrine not only in malicious prosecution and vexatious litigation cases, but also in a variety of situations involving prior judicial and quasi-judicial proceedings against the plaintiff. In Blake v. Levy, 191 Conn. 257, 260-66, 464 A.2d 52 (1983), our Supreme Court held that the favorable termination requirement bars a plaintiff from maintaining a suit for tortious interference with business relations premised on the defendant's initiation of a prior lawsuit against a company primarily owned by the plaintiff, which suit resulted in a settlement. The court explained that its conclusion "recognizes that the law favors settlements, which conserve scarce judicial resources and minimize the parties' transaction costs, and avoids burdening such settlements with the threat of future litigation." Id., 264. See also Clewey v. Brown Thomson, Inc., 120 Conn. 440, 181 A. 531 (1935) (favorable termination rule applies to false imprisonment actions); Ancona v. Manafort Bros., Inc., 56 Conn.App. 701, 705-08, 714-15, 784 A.2d 184, cert. denied, 252 Conn. 953, 749 A.2d 1202 (2000) (underlying breach of contract suit against plaintiff had terminated favorably to plaintiff, but court concluded that plaintiff could not prove violation of Connecticut Unfair Trade Practices Act (CUTPA); General Statutes § 42-110a et seq.; because there was probable cause for underlying suit).
In DeLaurentis v. New Haven, supra, 220 Conn. 225, the plaintiff was chairman of the New Haven parking authority when the city's mayor attempted to remove him from his position, an action that, under the city charter, could take place only for cause and after a public hearing. Id., 228. The mayor nevertheless abandoned the removal proceedings prior to their conclusion and the plaintiff served out the remainder of his term. Id., 236. The Supreme Court initially decided that a plaintiff can base a claim for vexatious litigation not only on a prior civil action but also on the "initiation, continuation or procurement of civil proceedings against another before an administrative board that has power to take action adversely affecting the legally protected interests of the other." (Internal quotation marks omitted.) Id., 248. The court then applied the favorable termination rule to the claim for vexatious litigation and concluded that the rule permits a vexatious suit action "whenever the underlying proceeding was abandoned or withdrawn without consideration, that is, withdrawn without either a plea bargain or a settlement favoring the party originating the action." Id., 250. Because the mayor had abandoned the administrative removal proceedings without any negotiation with the plaintiff, the court concluded that the plaintiff had satisfied the favorable termination requirement. Id., 252. Thus, DeLaurentis stands for the proposition that, although a party can maintain a vexatious litigation suit based on the results of an administrative proceeding, the favorable termination rule still applies. See also Rioux v. Barry, 283 Conn. 338 (2007) (vexatious litigation action can be brought as a result of police internal affairs proceeding but plaintiff must prove favorable termination); Zeller v. Consolini, 235 Conn. 417, 421-25, 666 A.2d 64 (1995) (favorable termination rule applies to vexatious litigation and tortious interference suit premised on zoning case and administrative appeal).
Our appellate courts have not yet addressed the question of whether the favorable termination rule applies to private hospital corrective action. In Owens, however, our Supreme Court stated that private hospital professional review actions are analogous to administrative agency proceedings, to which the rule, as discussed, clearly does apply. See Owens v. New Britain General Hospital, supra, 229 Conn. 607-08 n. 27. While private hospitals are not subject to the Uniform Administrative Procedure Act; General Statutes § 4-166 et seq.; they are required by state regulation to adopt bylaws addressing the "procedure for . . . hearing complaints regarding the conduct of members and referring the same, with recommendations, to the governing board." Regs., Conn. State Agencies § 19-13-D3(c)(2)(F). Private hospitals may also be subject to Joint Commission on Accreditation of Hospitals rules requiring bylaws "which provide for fair-hearing and appellate review mechanisms prior to the termination of a doctor's privileges." (Internal quotation marks omitted.) Gianetti v. Norwalk Hospital, 211 Conn. 51, 60 n. 8, 557 A.2d 1249 (1989). Further, in order to obtain immunity from liability for money damages, hospitals must insure that their review actions meet a number of significant standards in the federal act. Thus, the fairness of private hospital disciplinary proceedings is more analogous to that of regulated public administrative agency hearings than to that of procedures employed by private industry.
Under these standards, "a 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)."
42 U.S.C. § 11112(a).
In the present case, the defendant enacted bylaws for review hearings with provisions regarding notice, witness lists, composition of the hearing panel, representation by counsel, burden of proof and evidentiary rules. See Ex. 17, Article VI, section 3. The review panel does not simply conduct a record review but rather acts in an essentially de novo manner based on oral testimony, memoranda of points and authorities, and any other admitted evidence. See Ex. 17, Article VI, section 3G. As mentioned above, in this case, both sides were represented by counsel, the proceedings were recorded, both sides presented opening statements, exhibits, and testimony under oath, including that of the plaintiff and his expert witness, and both sides submitted post-hearing memoranda. See also note 7 supra. Judge Burke found that there was no dispute that the review proceedings employed the procedural safeguards of the federal act. Clearly, the hospital's professional review proceedings in this case, while not equivalent to a full-blown trial, were as fair as the parking authority, police internal affairs division, and zoning committee hearings to which our Supreme Court has already applied the favorable termination rule.
The California Supreme Court is apparently the only appellate court explicitly to have addressed the question of whether the favorable termination rule should apply in the private hospital context. In Westlake Community Hospital v. Superior Court of Los Angeles County, 17 Cal.3d 465, 551 P.2d 410 (1976), the principal issue was what procedural requisites, if any, a doctor whose privileges have been terminated by a private hospital must fulfill before she could institute a tort action for damages. The California court concluded that the plaintiff must first succeed in overturning the hospital action through a mandamus action before pursuing her tort claim against the defendants. Id., 483-84. In doing so, the court held that "the general policy underlying the `favorable termination' requirement in malicious prosecution actions applies in the present context." Id., 483-84. The court reasoned: "As in a malicious prosecution action, plaintiff's position rests on a contention that defendant's intentionally and maliciously misused a quasi-judicial procedure in order to injure her; such a claim is necessarily premised on an assertion that the hospital's decision to revoke plaintiff's privileges was itself erroneous and unjustified. Although a quasi-judicial decision reached by a tribunal of a private association may not be entitled to exactly the same measure of respect as a similar decision of a duly constituted public agency . . . we believe that so long as such a quasi-judicial decision is not set aside through appropriate review procedures the decision has the effect of establishing the propriety of the hospital's action." (Citations omitted.) Id., 484.
For all these reasons, the court concludes that the favorable termination rule should apply to the private hospital professional review hearings in this case.
B
The court recognizes that Westlake does not fully square with Connecticut law. In Gianetti v. Norwalk Hospital, supra, 211 Conn. 51, our Supreme Court held that a physician could maintain a breach of contract and antitrust action against a hospital that had denied the physician reappointment to the medical staff allegedly in violation of the hospital bylaws. In Owens v. New Britain General Hospital, supra, 229 Conn. 602-08, which involved an action by a physician for damages and injunctive relief challenging the hospital's termination of his medical staff privileges, the Court decided that the "substantial compliance" standard applies to review of the hospital's decision in such suits. Thus, under Connecticut law, a physician or other medical staff member can challenge an unfavorable termination of hospital administrative proceedings and seek resulting damages by way of a direct right of action in court. There is no requirement in Connecticut, as there is in California, that the physician first prevail in a mandamus action against the hospital and obtain a ruling that hospital proceedings should have terminated favorably to the physician.
The present case nonetheless calls for the application of the favorable termination rule because, as discussed, the plaintiff has failed to challenge the termination of hospital administrative proceedings in favor of the hospital. As the case now stands, the plaintiff has attacked the summary suspension that constituted the initial stage of the proceedings, but has not contested the termination of proceedings in favor of the hospital.
There is no valid argument that these proceedings are separate for purposes of the favorable termination rule. One court has aptly described the process of summary suspension followed by a full hearing as a "continuum." Gureasko v. Bethesda Hospital, supra, 116 Ohio.App.3d 734. See also Burney v. East Alabama Medical Center, 939 F.Sup. 1514, 1524-25 (M.D.Ala. 1996) (presuspension investigation is part of ultimate decision to suspend). In this case, the hospital's bylaws provide that a physician subject to a summary suspension has a right to a subsequent hearing to determine whether "the recommendation which prompted the hearing was unreasonable, not sustained by the evidence, or otherwise unfounded." (Ex. 17, pp. 8-10, 15.) In accordance with this bylaw, as stated earlier, the review committee explicitly described its task as determining "whether or not the summary suspension of Dr. Harris's surgical privileges was unreasonable, not sustained by the evidence or otherwise unfounded." (Ex. C, pp. 6-7.) The panel concluded that the "summary suspension of Dr. Harris's surgical privileges was reasonable, sustained by the evidence and properly supported." (Ex. C, p. 11.) Thus, the review panel literally reviewed the decision of the medical executive committee to summarily suspend the plaintiff's privileges rather than undertook an independent, unrelated investigation.
The plaintiff's position is logically inconsistent. The plaintiff cannot logically argue that the initial summary suspension was invalid but concede the validity of the review hearing panel's decision that the summary suspension was in fact valid. On the contrary, the review panel's uncontested decision to affirm the summary suspension conclusively establishes that the summary suspension was substantially correct and that it was proper for the hospital to institute proceedings in the first place. See Frisbie v. Morris, 75 Conn. 637, 639-40, 55 A.9 (1903); see also Peyton v. Johnson City Medical Center, 101 S.W.3d 76, 88 (Tenn.App. 2002) (conclusion that permanent suspension satisfied the federal act necessarily means that summary suspension complied).
The situation here invokes all of the policy concerns behind the favorable termination rule. See DeLaurentis v. New Haven, supra, 220 Conn. 251-52. The first concern focuses on inconsistent decisions. The court is now left with an uncontested hospital review panel decision approving the suspension of the plaintiff's privileges and, because of the jury's verdict, a ruling awarding the plaintiff damages based on the hospital's allegedly wrongful initial suspension of those privileges. Such an inconsistent result compromises the finality of administrative decisions, encourages unnecessary litigation, and negates the deference that should be shown to hospital officials who must make decisions in the interest of patient safety. See Owens v. New Britain General Hospital, supra, 229 Conn. 606. The second concern is the windfall to the plaintiff. A doctor who does not challenge the hospital's final decision to suspend him permanently should not receive damages because the hospital suspended him summarily at the outset. Just as a judgment of a court on the merits conclusively establishes that there was probable cause to file the suit, the unchallenged decision of the hospital to affirm the summary suspension necessarily establishes that the hospital acted correctly in bringing the summary suspension proceedings in the first place. See Ritter v. Board of Commissioners, 96 Wash.2d 503, 637 P.2d 940 (1981) (physician who showed that summary suspension was improper but who failed to show that permanent suspension was improper not entitled to reinstatement or expunging of his records).
Accordingly, because the plaintiff failed to prove that the hospital proceedings terminated favorably to him, the court grants the motion for judgment notwithstanding the verdict in its entirety.
II
The court also finds that, while there was sufficient evidence of tortious interference with business expectancies, there was insufficient evidence that the defendant acted with the intent to injure or in reckless disregard of the plaintiff's rights. This finding supplies an additional basis for the denial of plaintiff's motion for punitive damages.
When the defendant raises a claim of insufficient evidence on a motion for judgment notwithstanding the verdict, the court "must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial." Craine v. Trinity College, 259 Conn. 625, 635, 791 A.2d 518 (2002). "Judgment notwithstanding the verdict should be granted only if [the court finds] that the jurors could not reasonably and legally have reached the conclusion that they did reach . . . If the jury, however, without conjecture could not have found established an element of the claim, the verdict on the claim cannot withstand a motion for judgment notwithstanding the verdict . . ." Consequently, the plaintiff must produce sufficient evidence to remove the jury's function from the realm of speculation. (Internal citations omitted.) Id., 636.
Viewing the evidence in a light most favorable to the plaintiff, the jury was legally free to overlook, disregard, or discredit the various peer review reports and conclude that there was no basis or an insufficient basis for summary suspension. In that event, there would have been no justification for the defendant's interference with the plaintiff's surgical business and there would have been sufficient evidence of tortious interference with the plaintiff's business expectancies. See Daley v. Aetna Lfe Casualty Co., supra, 249 Conn. 805-06.
Of course, as stated above, the verdict on tortious interference cannot stand because of the favorable termination doctrine.
In contrast, it was the plaintiff's obligation, in order to support the punitive damages award, affirmatively to produce evidence to prove that the defendant intentionally sought to injure the plaintiff's rights or acted in reckless disregard of his rights. See Gargano v. Heyman, 203 Conn. 616, 622, 525 A.2d 1343 (1987). There was no such evidence.
As stated, the plaintiff did not have the right to notice and an opportunity to be heard before the summary suspension. Thus, any claim that the process leading up to the summary suspension intentionally excluded him or was otherwise unfair is not legally sound. In fact, as also stated, the plaintiff received more process than he was due.
Further, there was no evidence of any statement by any relevant actor that revealed any animus towards the plaintiff. The evidence, on the contrary, revealed that he was well-liked. The plaintiff himself testified at trial that he did not question the motive of the physicians on the medical executive committee.
Although Dr. Morowitz was an economic competitor of the plaintiffs, there is no evidence that any of his actions in gathering cases, making a presentation to the peer review committee, or voting along with the other sixteen members of the medical executive committee was done for economic or ulterior motives. Dr. Morowitz was involved not because he was a competitor, but because he was chairman of the surgery department. Indeed, the process of peer review necessarily involves peers, some of whom will inevitably practice in the same specialty and geographical location.
Finally, the subsequent hospital review process, which concluded in 2002 that the summary suspension of Dr. Harris's surgical privileges was "reasonable, sustained by the evidence and properly supported," necessarily establishes the good faith of the summary suspension. The plaintiff as discussed, had a full and fair opportunity to litigate the issues in the review hearings and now does not challenge the results. He cannot consistently concede that the review panel reached the correct result in affirming the summary suspension and, at the same time, maintain that the summary suspension was infected by bad faith. For all these reasons, there was insufficient evidence to support the jury's award of punitive damages on the third count alleging tortious interference with business expectancies. Therefore, the court grants the motion for judgment notwithstanding the verdict as to this aspect of the verdict, thus supplying an additional ground for the denial of plaintiff's motion for punitive damages.
IV. DEFENDANT'S MOTION FOR REMITTITUR
The defendant moves for a remittitur concerning the jury's award of $200,000 to the plaintiff for emotional distress and damage to reputation. Although it is technically unnecessary to address the defendant's motion for remittitur in view of the court's decision to grant judgment notwithstanding the verdict, the court does so because it is a discretionary matter for the trial court, rather than a pure question of law that an appellate court could just as easily decide.
"[T]he amount of damages awarded is a matter peculiarly within the province of the jury . . . [I]t is the jury's right to accept some, none or all of the evidence presented . . . The court's broad power to order a remittitur should be exercised only when it is manifest that the jury have included items of damage which are contrary to law, not supported by proof, or contrary to the court's explicit and unchallenged instructions." (Citations omitted; internal quotation marks omitted.) Fontana v. Zymol Enterprises, Inc., 95 Conn.App. 606, 611, 897 A.2d 694 (2006). In this case, the only evidence of emotional distress came from the plaintiff's own testimony in which he stated that he felt humiliated by his suspension and that he has continued to suffer emotional distress from his present inability to satisfy his lifelong desire to be a surgeon. There was no specific testimony regarding the damage to the plaintiff's professional reputation.
Having found that the defendant tortiously interfered with the plaintiff's business relations, the jury was entitled, based on the plaintiff's testimony, to award him some non-economic damages for resulting emotional distress and, in theory, damage to reputation. In this case, however, the amount of $200,000 is grossly disproportionate to the actual harm. This case was not one involving physical injury to or death of the plaintiff or a family member, an improper arrest, an act of bigotry, or anything similar that might well justify a high award for emotional distress alone. Indeed, there was no evidence that the plaintiff suffered any physical manifestations, such as depression, sleeplessness, or sickness, as a result of his emotional distress. Further, any emotional injury from the hospital's summary suspension was of limited duration, as the plaintiff did not challenge his permanent suspension of hospital privileges in 2002 and his loss of his state surgical license in 2005.
There was no proof of any damage to reputation. Any theoretical damage to the plaintiff's reputation from his summary suspension in 2001 would also have resulted from the hospital and state actions in 2002 and 2005 that the plaintiff did not contest. Further, an overview of the plaintiff's professional income reveals that he has actually benefitted financially from his shift from surgery to his new specialty, rehabilitative medicine. While the plaintiff at most earned approximately $109,000 as a surgeon before his 2001 suspension, the plaintiff earned approximately $212,000 and $243,000 in 2004 and 2005, respectively, in rehabilitative medicine.
The jury, of course, found that the plaintiff lost $50,000 in income as a result of the summary suspension and awarded the plaintiff economic damages in that amount.
The plaintiff's income before 1998 was not available. The plaintiff had failed to pay federal income tax from 1995 or 1996 to 2007 and had failed to file federal income tax returns from 1998 to 2007.
Under these circumstances, an award of $100,000, rather than the original award of $200,000, seems more than adequate to balance the appropriate deference due the jury's fact-finding role with the negligible proof of emotional injury and the complete absence of any proof of damage to reputation. Accordingly, the court grants the motion for a remittitur in the amount of $100,000, thus reducing the $200,000 non-economic damages award to $100,000.
V. DEFENDANT'S MOTION TO SET ASIDE THE VERDICT
The defendant moves to set aside the verdict based on claimed errors in the jury instructions as well as the grounds asserted in the motion for judgment notwithstanding the verdict. For the reasons stated at the time of the jury instructions, the court rejects the defendant's claims of instructional error. There is no need to address the remaining claims in the motion to set aside because the court has already resolved them to the extent necessary in granting the motion for judgment notwithstanding the verdict. Accordingly, the motion to set aside the verdict is denied as to the claimed instructional errors and denied as moot as to the remaining claims.
VI. CONCLUSION
For the foregoing reasons, the court denies the plaintiff's motion for injunctive relief, denies the plaintiff's motion for punitive damages, grants the defendant's motion for judgment notwithstanding the verdict, grants the defendant's motion for a remittitur in the amount of $100,000, and denies the defendant's motion to set aside the verdict. Judgment shall accordingly enter for the defendant.
It is so ordered.