Babb v. Clinic (In re Appeal of Clinic), J-A16036-19

• Decision Date: 17 October 2019
• Docket Number: No. 1314 MDA 2018,J-A16036-19,No. 1229 MDA 2018,1229 MDA 2018,1314 MDA 2018
• Parties: TERRENCE E. BABB, M.D. v. GEISINGER CLINIC; PENN STATE GEISINGER HEALTH SYSTEM; ROBIN E. OLIVER, M.D.; AND MICHAEL CHMIELEWSKI, M.D. APPEAL OF: GEISINGER CLINIC TERRENCE E. BABB, M.D. Appellant v. GEISINGER CLINIC; GEISINGER HEALTH SYSTEM
• Court: Superior Court of Pennsylvania

TERRENCE E. BABB, M.D.
v.
GEISINGER CLINIC; PENN STATE GEISINGER HEALTH SYSTEM;
ROBIN E. OLIVER, M.D.; AND MICHAEL CHMIELEWSKI, M.D.

APPEAL OF: GEISINGER CLINIC

TERRENCE E. BABB, M.D. Appellant
v.
GEISINGER CLINIC; GEISINGER HEALTH SYSTEM

J-A16036-19
No. 1229 MDA 2018
No. 1314 MDA 2018

SUPERIOR COURT OF PENNSYLVANIA

OCTOBER 17, 2019

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment Entered October 3, 2018
In the Court of Common Pleas of Centre County Civil Division at No(s): 98-1195

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS^*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:

Geisinger Clinic ("Geisinger") appeals from the order entered by the Court of Common Pleas of Centre County after a jury found in favor of Terrence E. Babb, M.D., on his breach of contract claim and awarded Dr. Babb

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$5.5 million in damages. Dr. Babb filed this cross-appeal, challenging the trial court's denial of his claim for pre-judgment interest. We affirm.

Our Court has reviewed this case on two occasions in its long procedural history that spans more than two decades. See Babb v. Geisinger Clinic, et al., 981 MDA 2014 (Pa.Super. 2015) (unpublished memorandum) ("Babb II"); Babb v. Centre Community Hospital, 47 A.3d 1214 (Pa.Super. 2012) ("Babb I"). While our prior decisions provide detailed recitations of the background of this case, for the sake of simplicity, we set forth only the facts and procedural history that are necessary to resolve the instant appeal:

In June 1995, Geisinger offered, and Dr. Babb accepted, employment as a staff physician for their OB/GYN Clinic in State College. Dr. Babb commenced his employment on September 1, 1995. At around the same time, Dr. Oliver was also hired as a staff physician for the OB/GYN Clinic. In July 1996, Geisinger hired Dr. Chmielewski as a third staff physician at the Clinic. Over time, the working relationship between Dr. Babb and his two colleagues deteriorated. Dr. Babb made professional complaints against Dr. Chmielewski. Subsequently, Dr. Oliver, Dr. Chmielewski and others made professional complaints against Dr. Babb. Pursuant to a routine annual performance review process, Dr. Babb was recommended for reappointment. However, the discord and additional targeted performance reviews culminated in Geisinger's decision to terminate Dr. Babb's employment.

To that end, on or about May 16, 1997, Dr. Charles Maxin, Senior Vice President for Clinical Operations, and Dr. David Wolfe, Medical Director for Geisinger Medical Group, met with Dr. Babb and requested his resignation. Dr. Babb refused to resign and he was fired that same day. The termination was confirmed by letter dated May 19, 1997.¹

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***During his employment with Geisinger, Dr. Babb enjoyed clinical privileges with [Centre Community Hospital (CCH)]. Upon his termination by Geisinger, those privileges were withdrawn because Dr. Babb no longer had malpractice insurance coverage. Dr. Babb subsequently obtained employment in Clearfield County.

On May 1, 1998, Dr. Babb initiated the instant action in the Court of Common Pleas of Centre County by filing a writ of summons against Geisinger, Dr. Oliver, and Dr. Chmielewski (Geisinger Defendants). [] On November 4, 1999, Dr. Babb filed a complaint in United States District Court for the Middle District of Pennsylvania against Geisinger, CCH, and others, alleging, inter alia, discrimination, antitrust violations, breach of contract, civil conspiracy to deny privileges, and interference with contract.
***On September 14, 2001, the District Court, with Judge Muir presiding, granted defendants' motions for summary judgment, terminating all federal claims but declining to address Dr. Babb's state claims.
***[O]n October 31, 2001, Dr. Babb filed a seven-count complaint in the still pending instant action against the Geisinger Defendants. On January 25, 2002, Dr. Babb filed an amended six-count complaint, adding CCH as a party and alleging the following causes of action. As against Geisinger, Dr. Babb sought monetary damages, alleging breach of contract (Count I), and illegal retaliation in violation the Pennsylvania Human Relations Act

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(Count VI). As against all defendants, Dr. Babb sought monetary damages, alleging defamation (Count II), intentional interference with contractual relations (Count IV), and civil conspiracy (Count V). In Count III, Dr. Babb also sought injunctive relief against Geisinger and CCH relative to the alleged defamation. See Dr. Babb's Amended Complaint, 1/25/02.
***On December 10, 2010, the Geisinger Defendants and CCH each filed a motion for summary judgment. The Geisinger Defendants and CCH sought summary judgment or partial summary judgment on [several] grounds[, including inter alia, ... their claim] that they are covered by the [federal Health Care Quality Improvement Act (HCQIA), 42 U.S.C.A. § 11101, et seq.] and Pennsylvania's Peer Review Protection Act [(PRPA) immunity pursuant to 63 P.S. §§ 425.1-425.4, relative to Dr. Babb's claim for monetary damages in Counts I, II, IV, V, and VI. In addition,] [r]elative to Dr. Babb's Count III request for injunctive relief, the Geisinger Defendants and CCH allege the relief requested is unavailable as a matter of law because the Data Bank Report at issue was justified, privileged and mandated and an adequate remedy exists at law.

On May 12, 2011, the trial court issued an opinion and order granting summary judgment in favor of all defendants as to all counts and dismissed all claims with prejudice. The trial court based its grant of summary judgment for the counts seeking damages on the Geisinger Defendants' and CCH's claims of HCQIA immunity. [The trial court also found that injunctive relief was unavailable.]
***On June 9, 2011, Dr. Babb filed a timely notice of appeal.

On appeal, [in Babb I,] a panel of this Court affirmed in part and reversed in part the trial court's order. [In a published opinion authored by then-Judge (now Justice) Sallie Updike Mundy,² the] panel affirmed the trial court's grant of summary judgment in favor of Dr. Oliver, Dr. Chmielewski, and CCH on the basis of HCQIA immunity []. The panel, however, reversed the trial court's grant of summary judgment in favor of Geisinger on the basis of HCQIA immunity because there existed an issue of material fact regarding Geisinger's compliance with 42 U.S.C.A. § 11112(a).

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The panel also declined to review additional issues relating to Geisinger's summary judgment motion that were not addressed by the trial court [] and remanded the case for further proceedings.

On remand, the trial court ordered Geisinger to file another summary judgment motion and brief relating only to issues that the trial court did not address in its May 12, 2011 order. [] On November 4, 2013, Geisinger filed its motion for summary judgment, [raising numerous additional claims, which included, inter alia, its argument that it] was entitled to summary judgment as a matter of law, because Section 425.3(a) of the PRPA, 63 P.S. § 425.3(a), rendered Geisinger immune from liability. [Further,] Geisinger argued that Dr. Babb's breach of contract claim failed as a matter of law, because Dr. Babb was an at-will employee who could be terminated with or without cause.
***On February 24, 2014, the trial court issued an opinion and order, granting summary judgment in favor of Geisinger.
***Regarding the peer review immunity under PRPA, the trial court determined Geisinger was immune from liability for money damages under Section 425.3(a). With respect to Dr. Babb's breach of contract claim, the trial court concluded that he was an at-will employee who was terminated for cause and that Geisinger followed proper post-termination procedures as outlined in Dr. Babb's practice agreement.

Babb II, 981 MDA 2014, at *1-7 (footnotes and some citations omitted).

In Babb II, this Court filed an unpublished decision authored by the Honorable Victor Stabile, affirming the trial court's grant of summary judgment in most respects, including its decision to grant Geisinger immunity under Section 425.3(a) of the PRPA, which provides protection for "providing relevant and truthful information to peer review committees." Cooper v. Delaware Valley Med. Ctr., 539 Pa. 620, 632, 654 A.2d 547, 553 (1995).

However, this Court reversed the trial court's decision to grant summary judgment on Appellant's breach of contract claim, finding that "a material

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issue of fact exists as to whether (1) Dr. Babb was an at-will employee, (2) Geisinger afforded Dr. Babb [] an opportunity to review the underlying grievances prior to termination and (3) Geisinger had any contractual obligations to Dr. Babb that Geisinger failed to honor during the course of Dr. Babb's employment with Geisinger." Babb II, 981 MDA 2014, at *18. As a result, this Court remanded the case for resolution of these issues.

Before the commencement of opening statements at trial, Geisinger formally withdrew its immunity defense under the HCQIA. Thereafter, the parties disagreed on whether evidence of post-termination hearings and Geisinger's compliance with HCQIA standards could be admitted at trial. The trial court ruled that the parties should not discuss the post-termination hearings or the NPDB Report. Notes of Testimony (N.T.), Trial, 3/5/18, at 9.

At the conclusion of the evidence, Geisinger moved for a directed verdict, which the trial court denied. Thereafter, the jury found Geisinger breached its contract and awarded Dr. Babb $5.5 million in damages. Geisinger filed a post-trial motion, seeking judgment notwithstanding the verdict (JNOV) or a new trial. Dr. Babb filed a post-trial motion, asking for an award of pre-judgment interest. On June 29, 2018, the trial court denied both parties' post-trial motions. Both parties appealed.³

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Geisinger raises the following issues on appeal:

A. Whether the trial court erred when it failed to find the prior immunity determination necessitated entry of judgment in Geisinger's

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