Opinion
J-A18029-17 No. 1862 WDA 2016
12-06-2017
VICTOR F. NOVAK, II, M.D., F.A.C. Appellant v. SOMERSET HOSPITAL: MICHAEL J. FARRELL: JAVAD SAADAT M.D.: AND PETER T. GO, M.D. Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered November 9, 2016
In the Court of Common Pleas of Somerset County
Civil Division at No(s): 653 Civil 2014 BEFORE: BOWES, J., LAZARUS, J., and OTT, J. MEMORANDUM BY LAZARUS, J.:
Victor F. Novak, II, M.D., F.A.C., appeals from the order, entered in the Court of Common Pleas of Somerset County, granting summary judgment in favor of Somerset Hospital ("Somerset"). After careful review, we affirm based on the well-reasoned opinion of the Honorable Scott P. Bittner.
On August 18, 2017, Doctor Novak filed a petition for withdrawal of appearance of Katherine J. McLay, Esq., as counsel of record in this appeal. See Pa.R.C.P. 1012(b) ("[A]n attorney may not withdraw his or her appearance without leave of court."). Manning J. O'Connor, Esq., who has entered his appearance before this Court, will remain counsel to Dr. Novak in this appeal. Attorney McLay's withdrawal as attorney of record will neither delay this proceeding nor prejudice Dr. Novak's representation. Accordingly, we grant Attorney McLay's petition for withdrawal of appearance.
Doctor Novak is a board certified general surgeon who practiced at Somerset Hospital from 1993 until 2005. In 2005, two patients approached Dr. Novak and asked him to perform surgery to replace implantable cardioverter defibrillator ("ICD") generators. Doctor Novak did not have hospital privileges to implant or change ICD devices, however, he agreed to perform these surgeries. When Dr. Novak was about to begin surgery, operating room staff contacted Jonathan Kates, M.D., the Chair of Somerset's Credentials Committee. Doctor Kates approved the procedure, but Dr. Novak was not aware of Dr. Kates' approval at the time he performed the surgeries. The surgeries were successful and no patients suffered any sequela as a result of the procedures performed.
Michael Farrell, Somerset's Chief Executive Officer, assembled a task force of administrators to investigate the circumstances of the surgeries; M. Javad Saadat, M.D., then-president of Somerset's medical team, joined the task force after its initial conception. The task force never informed Dr. Novak of its investigation in writing, nor did it recommend discipline against Dr. Novak. However, upon completion of the task force investigation, Farrell referred the matter to the Medical Executive Committee ("MEC").
The MEC held four meetings on this matter, of which Dr. Novak and his attorney attended at least one. On November 7, 2005, the MEC issued a confidential memorandum to Somerset's Board of Directors ("the Board") and deferred judgment on the matter to the Board; the MEC did not recommend a specific sanction in its report. After a lengthy review, the Board ultimately revoked Dr. Novak's clinical privileges and staff appointments. The Board upheld this decision following Dr. Novak's appeal to Somerset's Fair Hearing Panel ("Panel"), despite the Panel's recommendation that the Board's initial decision be reconsidered.
The Board met on November 14 and 21, 2005, to consider the MEC's report, solicited outside opinions and heard from several physicians in support of Dr. Novak.
Doctor Novak initially brought suit against Somerset in 2007, alleging, among other claims, tortious interference with prospective contractual relations and breach of contract stemming from the revocation of his clinical privileges and staff appointments. We adopt the trial court's recitation of the lengthy and complicated procedural history of this case. See Trial Court Opinion, 11/9/2016, at 1-2.
On appeal, Dr. Novak raises the following issues for our review:
1. Whether Dr. Novak provided sufficient specificity regarding the prospective contracts at issue in his claim for tortious interference with contract such that summary judgment was improperly granted in favor of Somerset Hospital and Hospital Parties.Brief of Appellant, at 3.
2. Whether Somerset Hospital's investigation of Dr. Novak lacked the requisite objectivity to be considered a "professional review action" as defined by the Healthcare Quality Improvement Act[] [("HCQIA")] and to earn the Hospital pecuniary immunity in light of evidence of motive and misconduct of the examining individuals and entities.
Both of Dr. Novak's issues present arguments in support of his contention that the trial court erred in granting summary judgment in favor of Somerset. In reviewing the trial court's grant of summary judgment, we are guided by the following scope and standard of review:
A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.Shepard v. Temple University , 948 A.2d 852, 856 (Pa. Super. 2008). Accordingly, we must "determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder." Reeser v. NGK North America , Inc., 14 A.3d 896, 898 (Pa. Super. 2011) (quoting Jones v. Levin , 940 A.2d 451, 452-54 (Pa. Super. 2007)) (internal citations omitted).
In evaluating the trial court's decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Where the non[-]moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Lastly, we will review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.
Instantly, Somerset claims immunity under the HCQIA. Consequently, our review of the trial court's grant of summary judgment must account for the presumption of immunity imposed by the HCQIA:
The general purpose of the HCQIA is aptly summarized in Babb v. Centre Community Hosp., 47 A.3d 1214 (Pa. Super. 2012).
A synthesis of our summary judgment law and the HCQIA reveals that a plaintiff bears the burden of proof in rebutting the presumption that a defendant acted in compliance with § 11112(a). Thus, the entry of summary judgment against a plaintiff will be reversed only if he can establish that there is either a genuine dispute about a material fact or that he has adduced sufficient evidence so that a jury, examining the totality of the circumstances, could conclude that the plaintiff had rebutted the presumption.Babb v. Centre Community Hosp., 47 A.3d 1214, 1224-25 (Pa. Super. 2012) (quoting Manzetti v. Mercy Hosp. of Pittsburgh , 776 A.2d 938, 946 (Pa. 2001)).
In considering the defendant's motions for summary judgment based on HCQIA immunity, we ask the following: might a reasonable jury, viewing the facts in the best light for [plaintiff], conclude that he has shown, by a preponderance of the evidence, that the defendants' actions are outside the scope of § 11112(a)? Therefore, plaintiff can overcome HCQIA immunity at the summary judgment stage only if he demonstrates that a reasonable jury could find that defendants did not conduct the relevant peer review actions in accordance with one of the HCQIA standards.Id. at 1225 (quoting Singh v. Blue Cross/Blue Shield of Mass. Inc., 308 F.3d 25, 32 (1st Cir. 2002)) (quotations and brackets omitted).
It is true, as our formulation here of the summary judgment question suggests (asking whether a reasonable jury could find that a defendant did not meet one of the standards for HCQIA immunity), that the statutory scheme contemplates a role for the jury, in an appropriate case, in deciding whether a defendant is entitled to HCQIA immunity. The weight of authority from our sister circuits reflects this proposition.Id. (quoting Singh , 308 F.3d at 33).
Doctor Novak first avers that the trial court erred in granting summary judgment in favor of Somerset Hospital because he provided sufficient evidence showing he was deprived of prospective contracts and future earnings.
Although the HCQIA provides immunity to hospitals, and others, against claims arising out of a peer review process, which arguably includes claims for tortious interference with contracts, Somerset has not pursued this argument. Rather, Somerset argues Dr. Novak presented no evidence of existing or prospective contracts that allegedly were interfered with by Somerset. Accordingly, the trial court did not reach the issue of whether the HCQIA applies to Dr. Novak's tort claim, and resolved it on other grounds raised by Somerset.
The requisite elements of a cause of action for interference with prospective contractual relations are as follows: (1) a prospective contractual relationship [exists]; (2) the purpose or intent to harm the plaintiff by preventing the relationship from happening; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual damage resulting from the defendant's conduct. Foster v. UPMC South Side Hosp., 2 A.3d 655, 665 (quoting Restatement (Second) of Torts § 766(b) (1979)). A plaintiff must show that there is a reasonable likelihood or probability that a prospective contract exists. See Phillips v. Selig , 959 A.2d 420, 428 (Pa. Super. 2008). This reasonable likelihood "must be something more than a mere hope or the innate optimism of the salesman." Id. (citing Glenn v. Point Park College , 272 A.2d 895, 899 (Pa. 1971)).
We note, initially, that Dr. Novak concedes that he had no existing contractual relationships that were interfered with by the revocation of his admission privileges at Somerset Hospital. Furthermore, the trial court determined that Dr. Novak failed to adduce any evidence of the existence of any prospective contractual relations that he claimed Somerset interfered with. See Trial Court Opinion, 11/9/16, at 11. See Phillips , 959 A.2d at 428-29 (in determining whether reasonable likelihood or probability of prospective contractual relationship exists, Pennsylvania courts have consistently required more evidence than existence of current business or contractual relationship). Therefore, Dr. Novak's claim is meritless.
Dr. Novak next claims that Somerset's investigation was not a professional review action pursuant to the HCQIA, and thus it is not immune from monetary damages. Specifically, Dr. Novak alleges he was subject to unfavorable treatment based on matters not relating to his competence or professional conduct (i.e., personal animus and/or anticompetitive concerns).
Congress passed the HCQIA to improve the quality of medical care by encouraging the identification and discipline of incompetent or unprofessional physicians by granting limited immunity from suits for money damages to participants in professional peer review actions. Mathews v. Lancaster Gen Hosp., 87 F.3d 624, 632 (3d Cir. 1996) (citations omitted). Only a "professional review action" is qualified for immunity under the HCQIA. A professional review action is defined as an action taken by a review body when review is based on the competence or professional conduct of an individual physician and which affects the clinical privileges of the physician. 42 U.S.C. § 11151(9). Only the final decision by the peer review body and any action that results from it constitutes professional review action. Mathews , 87 F. 3d at 634. Further, a professional review action can be taken against unprofessional conduct which could adversely affect the health or welfare of a patient. Gordon v. Lewistown Hosp., 423 F.3d 184, 203 (3d Cir. 2005).
While Dr. Novak's surgery did not result in the injury of any patients, Somerset had not granted him privileges to perform these surgeries. Therefore, these surgeries were unprofessional conduct that could have resulted in injury; thus, the action taken against Dr. Novak constituted a professional review action.
In order to be protected from damages, professional review action must be taken:
1. in the reasonable belief that the action was in the 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, and42 U.S.C. § 11112 (a)(1-4). Under the HCQIA, Dr. Novak "bears the burden of proving that the professional review process was not reasonable and thus did not meet the standard for immunity." Mathews , 87 F. 3d at 633.
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). A professional review action shall be presumed to have met the preceding standards necessary for the protection set out in section 411(a) [42 U.S.C. § 11111(a)] unless the presumption is rebutted by a preponderance of the evidence.
Here, the trial court determined that Dr. Novak failed to carry his burden as to each of the four required elements of the HCQIA, and, therefore, Somerset had complied with the HCQIA as to receive immunity for its having revoked Dr. Novak's privileges. See Gordon v. Lewistown Hosp., 423 F.3d 184, 192-94 (3d Cir. 2005) (plaintiff bears burden of proving disputed professional review process was not reasonable and thus did not meet standard for immunity under HCQIA).
Even if Somerset's rationale for commencing a professional review action was, as Dr. Novak alleges, shaded by animus or flawed, if the facts are indisputable and support the Board's decision revoking his clinical privileges and staff appointments, Dr. Novak has not carried his burden of proving the professional review action was unreasonable. See Gordon , supra. --------
After reviewing the parties' briefs, the record and the relevant case law, we conclude that Judge Bittner's well-reasoned opinion thoroughly and properly disposes of the question of whether Somerset is entitled to summary judgment as a matter of law. Accordingly, we affirm on the basis of the trial court's opinion, which counsel should attach in the event of further proceedings.
Order affirmed. Petition for withdrawal of appearance granted. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/6/17
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