Andrew v. Hamilton Cnty. Pub. Hosp.

• Decision Date: 30 August 2018
• Docket Number: No. C 17-3053-MWB,C 17-3053-MWB
• Parties: MARK H. ANDREW, M.D., Plaintiff, v. HAMILTON COUNTY PUBLIC HOSPITAL, d/b/a VAN DIEST MEDICAL CENTER, and LORI RATHBUN, Defendants.
• Court: U.S. District Court — Northern District of Iowa

MARK H. ANDREW, M.D., Plaintiff, v. HAMILTON COUNTY PUBLIC HOSPITAL, d/b/a VAN DIEST MEDICAL CENTER,and LORI RATHBUN, Defendants.

No. C 17-3053-MWB

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA CENTRAL DIVISION

August 30, 2018

OPINION AND ORDER REGARDING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

TABLE OF CONTENTS

I. INTRODUCTION ........................................................................... 2

A. Factual Background ............................................................... 2

1. The parties ................................................................... 2

2. Dr. Andrew's employment agreement and amendments ............ 3

3. Dr. Andrew's employment ................................................ 5

4. Concerns and investigations .............................................. 7

5. The termination and aftermath ........................................ 12

B. Procedural Background ......................................................... 14

II. LEGAL ANALYSIS ...................................................................... 16

A. Summary Judgment Standards ................................................. 16

B. The Age Discrimination Claims ................................................ 17

1. Arguments of the parties ................................................ 18

2. Analysis .................................................................... 21

a. Applicable standards ............................................ 21

b. Application of the standards ................................... 23

C. Retention Of Jurisdiction ....................................................... 28

III. CONCLUSION ............................................................................ 31

A general surgeon who was employed by a rural county hospital brought this lawsuit against the hospital and its chief executive officer asserting that his termination, allegedly arising from concerns about his prescribing practices and patient care issues, was in breach of contract, a breach of fiduciary duty, and a violation of state and federal age discrimination laws, and that reports of his allegedly improper prescribing practices to the state board of medicine and the National Practitioner Data Bank were defamatory and libelous per se. The defendants have moved for summary judgment on parts of the surgeon's claim of breach of contract and on his other claims in their entirety. I must decide if the surgeon has generated genuine issues of material fact on the challenged claims.

I. INTRODUCTION

A. Factual Background

This statement of the factual background does not necessarily set out all the parties' factual allegations in support of and resistance to the defendants' Motion For Partial Summary Judgment. Rather, it focuses on the key facts to put in context the parties' disputes. Unless otherwise indicated, the following facts are undisputed, at least for purposes of summary judgment.

1. The parties

Plaintiff Dr. Mark Andrew was employed as a general surgeon by defendant Hamilton County Public Hospital, doing business as Van Diest Medical Center (VDMC), in Webster City, Iowa, from 2008 until he was terminated on December 15, 2016. For much of Dr. Andrew's employment with VDMC, he also served on the hospital's medical executive committee.

Defendant Lori Rathbun was the Chief Executive Officer (CEO) of VDMC from January 2014 through June 2017, when she resigned for health reasons. As CEO, Ms. Rathbun's duties included managing VDMC, hiring physicians, promoting patient safety and quality of care, negotiating employment contracts, and terminating VDMC employees. Although she was not a physician, Ms. Rathbun frequently made decisions that involved medical issues. She relied on advice from the President of VDMC's Medical Executive Committee, VDMC's Chief Nursing Officer, and her medical staff consultant, who were Dr. Nicole Ehn, Lisa Ridge, and Dr. Scott Altman, respectively, at the pertinent time. Ms. Rathbun passed away on February 21, 2018. Lisa Ridge, who had been VDMC's Chief Nursing Officer, is now the CEO of VDMC.

2. Dr. Andrew's employment agreement and amendments

At times relevant, here, Dr. Andrew's employment with VDMC was governed by a contract (Agreement), executed on August 11, 2014, by Dr. Andrew and Ms. Rathbun. The Agreement was for an initial three-year term and would automatically renew for an additional three years, unless either party gave ninety days' notice of intent not to renew. Defendants' Appendix at 99 (Agreement, § 9, "Term and Termination"). The parties agree that the most relevant terms of the Agreement are the following ones, which pertain to termination:

This Agreement may be terminated prior to the expiration of any Term as follows:

a. Without Cause. Either party may unilaterally terminate this Agreement without cause at any time by notifying the other party in writing of its intention to terminate at least 90 days prior to termination. In the event Hospital terminates this Agreement pursuant to this Section 9(a) Hospital may, at its option, relieve Physician of his duties under the Agreement during the notice period. If Hospital elects this option, Physician will continue to be eligible for employee benefit plans and will receive his compensationpayments in accordance with Exhibit B during the notice period. Any bonuses owed to Physician pursuant to this Agreement will be determined and pro-rated based on the date Physician is relieved of his duties.

* * *

d. Immediate Termination By Hospital. This Agreement shall terminate immediately in the event Physician fails to meet any of the qualifications provided in Section 3 of this Agreement or if Hospital determines in good faith that:

(i) Physician is not providing adequate patient care or the safety of patients is jeopardized[.]

Defendants' Appendix at 99-100. The Agreement also includes, inter alia, other grounds for immediate termination not at issue here, id. at 100 (Agreement, § 9(d)(ii)-(ix)), as well as a provision concerning "For Cause Termination," upon thirty days' notice, and a provision concerning termination for "Insolvency" of VDMC. Id. (Agreement, § 9(e)-(f)).

In a provision regarding "Effect of Termination," the Agreement also states,

Termination of Physician's employment shall be governed solely by this Agreement and shall not be subject to the corrective action, termination or grievance procedures applicable to other employees of Hospital or to the hearing and appeal procedures set forth in the medical staff bylaws.

Defendants' Appendix at 101 (Agreement, § 9(h), last sentence). Dr. Altman testified in deposition that "a system evolved where there's medical leadership and there's hospital leadership, and they have sort of a co-equal relationship. And the medical leadership's job is to ensure quality of care and the administrative leader's role is to ensure the delivery of care." The defendants admit that there was a peer review procedure, pursuant to hospital staff bylaws, and that the peer review procedure had been used several timesprior to December of 2016, but they deny that the peer review procedure was applicable to Dr. Andrew because of the last sentence of § 9(h) of his Agreement.

The Agreement was amended twice, once by an amendment executed on December 15, 2015, and again by an amendment executed on October 24, 2016. Both amendments reduced Dr. Andrew's compensation, but did not change the provisions quoted, just above, or change the three-year term of the Agreement.

3. Dr. Andrew's employment

The parties agree that Dr. Andrew was a highly-paid member of the VDMC staff, which Dr. Andrew contends was appropriate in light of his education and training as a general surgeon, his thirty-one years of experience in the field, and his countless hours on call. Dr. Andrew had discussed with Ms. Rathbun his plan to retire at age 65, at the end of 2019. Dr. Andrew alleges that, from the beginning of Ms. Rathbun's employment, she made clear that she thought he was overpaid, but the defendants admit only that Ms. Rathbun informed Dr. Andrew that his productivity did not meet hospital standards for what he was being paid. Ms. Rathbun's concerns with Dr. Andrew's productivity prompted the two amendments to Dr. Andrew's employment Agreement in December 2015 and October 2016. The parties dispute whether Dr. Andrew agreed, at the time, that the reductions were justified on the basis of low productivity. Dr. Andrew contends that several years of administrative actions at VDMC led to low referrals from area physicians to VDMC. Nevertheless, Dr. Andrew estimates that, over the course of his career, he performed over 7,000 procedures, and from 2012 to 2016, Dr. Ehn personally referred 30 to 50 cases to him.

In the summer of 2012, Dr. Andrew began providing backup call coverage at Hanson Family Hospital in Iowa Falls, Iowa. In 2014, Dr. Andrew was contracted to cover call on alternating weekends at Hanson Family Hospital, which gradually morphed into clinic days and then developed into a supplemental contract for shared services withIowa Falls. In late 2015, Ms. Rathbun leased Dr. Andrew's surgical services to Hansen Family Hospital. Dr. Andrew remained employed by VDMC, and Hansen Family Hospital reimbursed VDMC for Dr. Andrew's surgical services. Under the lease arrangement, Dr. Andrew spent approximately 50% of his time providing services at Hansen Family Hospital. The defendants contend that leasing Dr. Andrew's services to Hansen Family Hospital was an effort to improve his productivity, which Dr. Andrew denies. The parties agree that Ms. Rathbun planned to continue to lease Dr. Andrew's services to Hansen Family Hospital throughout the duration of his contract because it was a good source of revenue for the hospital.

In the summer of 2016, after Ms. Rathbun had agreed to lease Dr. Andrew's services to Hansen Family Hospital, she hired Dr. Gayette Grimm, a general surgeon, on a part-time basis to provide general surgery services...