Bender v. Suburban Hospital, 2000

Decision Date07 September 2000
Docket NumberNo. 2000,2000
PartiesCarol L. BENDER v. SUBURBAN HOSPITAL, INC. et al.
CourtCourt of Special Appeals of Maryland

Melvin J. Sykes, Baltimore, for Appellant.

Jonathan B. Sprague (A. James Johnston, Adrian R. King, Jr., Philadelphia, PA and S. Allan Adelman, Rockville, on the brief), for Appellees.

Jerome G. Geraghty, Teresa M. Kelly, and Blades & Rosenfeld, P.A., Baltimore, for Amicus Curiae, Suburban Hosp., Inc. in support of Appellee.

Joseph A. Schwartz, III, Pamela Metz Kasemeyer and Schwartz & Metz, P.A., Baltimore, for amicus curiae, the Medical and Chirurgical Faculty of Maryland.

Argued before MOYLAN, DAVIS and THIEME, JJ.

THIEME, Judge.

This is an appeal from a summary judgment in favor of appellees, Suburban Hospital, Inc., and William Minogue, M.D., Suburban's Senior Vice President for Medical Affairs. Appellant Dr. Bender's complaint alleged that Suburban breached a contract of employment by terminating her clinical privileges and that both defendants defamed her and intentionally interfered with contractual relations and prospective advantage. The complaint prayed for injunctive relief and damages. The trial court first granted partial summary judgment for Suburban on the breach of contract count. It found that Suburban's Medical Staff Bylaws, which guarantee that "[m]edical staff membership status and clinical privileges shall be granted or denied without regard to sex," did not create an enforceable obligation.

The court later disposed of the other counts on final summary judgment, finding that the Health Care Quality Improvement Act ("HCQIA"), 42 U.S.C. § 11111 et seq. (1994), renders appellees immune from suit. It entered final judgment in favor of appellees on all counts on September 10, 1999, and this appeal duly followed. Dr. Bender asks:

1. Did the court below err in granting summary judgment for defendants, even though the HCQIA affords qualified immunity only from liability for damages, and Dr. Bender also sought injunctive relief? 1

2. Did the court below err in finding that the HCQIA bars Dr. Bender's damage claims on the ground that the evidence failed to raise a jury question as to whether

a. Suburban made "a reasonable effort to obtain the facts of the matter," as required by 42 U.S.C. § 11112(a)(2);
b. The action against Dr. Bender was taken in the reasonable belief that it was "in furtherance of quality health care," as required by 42 U.S.C. § 11112(a)(1); and
c. The action against Dr. Bender was taken in the reasonable belief that it was "warranted by the facts known after ... reasonable effort to obtain [the] facts," as required by 42 U.S.C. § 11112(a)(4)?

3. Did the trial court err in holding that Article II, Section C of Suburban's Medical Staff Bylaws did not create an enforceable contractual obligation?

We answer "no" to these questions and explain.


Dr. Carol Bender held clinical privileges continuously at Suburban Hospital from 1977, when she first started practicing internal medicine, until February 21, 1996. Appellees concede her clinical competence, and no patient has ever complained about the quality of her care. Despite the present controversy, many fellow health care providers attest that they hold Dr. Bender in high regard. She retains privileges at Shady Grove Adventist Hospital in Gaithersburg and teaches at the George Washington School of Medicine. She has held leadership positions in the Montgomery County Medical Society and the Montgomery delegation to the Medical and Chirurgical Faculty of Maryland, which she represents on the State Board of Physician Quality Assurance. This board, we note, examines, licenses, supervises, and disciplines Maryland's physicians.

Despite her excellent professional reputation, Dr. Bender's relationships with fellow health care providers at Suburban have been troubled. Appellees cite reports dating from the early 1980's documenting Dr. Bender's rough language and obstreperous behavior and official warnings that had been issued. Despite these incident reports, the hospital reappointed Dr. Bender, with caveats about her behavior, for 1989 and 1990.2 In November 1990, however, she was reappointed without caveats for 1991 and 1992. On June 17, 1992, Dr. Bender applied for reappointment for 1993 and 1994. Both Dr. James Wilson, the chairman of internal medicine, and Dr. Harris Kenner, the chairman of the Department of Medicine, recommended Dr. Bender's reappointment.

A short time later, Dr. Bender was summoned to a meeting with Doctors Kenner; John Saia, chairman of the Medical Staff; Ira Miller, chairman-elect of the Medical Staff; and Frederick Caldwell, Senior Vice President for Medical Affairs. All four physicians were members of the Medical Staff Executive Committee ("MEC") and, as a group, they constituted, according to testimony, an informal credentialing subcommittee that convened on infrequent occasions. Before the meeting, Dr. Kenner told Dr. Bender that a "serious" threat to her hospital privileges existed.

At the meeting, which took place on October 22, 1992, the committee presented Dr. Bender with a long list of the incident reports lodged in her quality assurance ("QA") file. Testimony showed that several of these reports may have been trivial or retaliatory in nature.3 We also note that all incidents before November 1990 (the most recent of which occurred in March 1988) had been reviewed by the hospital when Dr. Bender renewed her privileges for 1991 and 1992, and, at that time, they presented no problem.

The incidents for 1991 include an "altercation" with a member of the nursing staff. The report reveals, however, no accusations of abusive, vulgar or hostile words on Dr. Bender's part, and, in fact, the handwritten transmittal note shows intent on the part of the Administrator of Nursing to diminish Dr. Bender's reputation.4 Dr. Bender received no notice of this report until the October 22 meeting. Reviewing physicians, including Doctors Kenner and Wilson, found that the incident raised no major quality assurance issues.

The second incident after 1988 occurred in August 1992, when a teenage girl of whose condition Dr. Bender had been informed was held in the Emergency Room for several hours. Without notifying Dr. Bender that the girl had arrived, emergency personnel subjected her to several procedures, including tests for HIV and sickle cell anemia, a CT scan, and a lumbar puncture. When Dr. Bender reached the hospital, she correctly diagnosed the girl's condition to be tonsillitis and strep throat. From some reports, Dr. Bender was visibly angry about what had happened, although no one testified that she had been abusive. As she had done before, she requested a QA review, which found that the Emergency Room had violated several applicable standards. Shortly after the incident, Dr. Paul Rothstein, chairman of the Emergency Department, wrote a bitterly worded letter to Dr. Caldwell stating:

I find Dr. Bender's behavior to be offensive, unprofessional, and personally demeaning. Unfortunately, this is characteristic behavior for her.
I am writing this letter to seek your advice and counsel in how to proceed or if to proceed any further. In my experience in dealing with attendings from all services in this hospital for nearly six years now, I find that Dr. Bender's behavior is far beyond the norm. While I cannot comment, specifically, on her medical abilities, her personal interactions are nearly uniformly found to be inappropriate. Is this the type of physician we need or want on our medical staff?

The last report involved a conversation in October 1992, between Dr. Bender and QA coordinator Mary Freeman, held in the Medical Records Department, an area of the hospital that is off-limits to patients and their families. Dr. Bender showed Freeman a patient chart and said, "You have to review this patient; her care was all fucked up." She then reviewed the patient's chart with Freeman, "using occasional expletives." Dr. Saia later asked Freeman to submit a complaint for Dr. Bender's QA file. We note, however, that several physicians, including Dr. Bender's accusers, admitted in testimony or depositions that the use of foul language, even in the presence of patients, was almost a way of life for some male physicians at Suburban.

Dr. Bender assured the ad hoc credentials subcommittee that she would work harder to respect the sensibilities of others and improve the way in which she communicated her concerns about patient care. The group concluded:

In view of the three year hiatus following a previous counseling and her stated willingness to improve her behavior, the group was willing to accept her promise and hope for a permanent improved outcome.

The rapprochement between Dr. Bender and the subcommittee, however, was fugacious. One of Suburban's surgeons, "Dr. Johnson,"5 who was well-known for his short temper, performed emergency surgery for peritonitis, a life-threatening condition, on one of Dr. Bender's patients on October 23, 1992. The patient later wrote in a letter to the hospital that, on October 25, Dr. Johnson completely lost control, "storm[ing] into [her] room screaming at the top of his lungs" that she "would have to choose between him and Dr. Bender" as her attending physician. He also verbally assaulted the attending nurse, shouting at her within the hearing of other staff about her "confrontational manner" and "lecturing" her that "I do not work for you. I am the doctor and you work for the hospital and me and I do not want you on any of my cases." The next day, after seeing Dr. Bender writing notes at the nurses' station, Dr. Johnson again raged into the patient's room and yelled at her. He "rip[ped] the dressing off [her] abdomen" with such force that she was sure he would tear the skin and the surgical staples holding her incision together.

From the nurses' station, Dr. Bender witnessed Dr. Johnson's outburst. A fellow...

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