Clinch v. Heartland Health

• Decision Date: 17 January 2006
• Docket Number: No. WD 64853.,WD 64853.
• Citation: 187 S.W.3d 10
• Parties: Steven L. CLINCH, Appellant, v. HEARTLAND HEALTH, Heartland Midwestern Health Management, Inc., Lowell C. Kruse, and Michael E. Nellestein, Respondents.
• Court: Missouri Court of Appeals

187 S.W.3d 10

Steven L. CLINCH, Appellant, v. HEARTLAND HEALTH, Heartland Midwestern Health Management, Inc., Lowell C. Kruse, and Michael E. Nellestein, Respondents.

No. WD 64853.

Missouri Court of Appeals, Western District.

January 17, 2006.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 28, 2006.

Application for Transfer Denied April 11, 2006.

John Kent Thomas, St. Joseph, for Appellant.

George Edward Leonard, Kansas City, Todd Henry Bartels, St. Joseph, for Respondent.

PAUL M. SPINDEN, Judge.

Steven L. Clinch, a heart surgeon, has sued fellow surgeon, Michael E. Nellestein, charging him with tortious interference with one of Clinch's business relationships. Clinch accuses Nellestein of being the prime cause for his losing his position as a medical director at Heartland Regional Medical Center in St. Joseph. Clinch also sued his former employer, Midwestern Health Management, Inc., Heartland Health, Heartland Regional Medical Center, and Heartland Regional's president and chief executive officer, Lowell C. Kruse, for conspiring to restrain his trade as a surgeon by keeping him from practicing on the hospital staff. Midwestern Health Management contracted with Heartland Regional to provide Clinch's services to the hospital. Both firms were wholly owned subsidiaries of Heartland Health.

The circuit court granted summary judgment for defendants on both causes of action. We affirm summary judgment of Clinch's antitrust claims but reverse summary judgment of his tortious interference claim and remand for further proceedings.

The basis for this dispute apparently began fomenting during 1999 when Nellestein was director of Heartland Regional's vascular surgery and expressed concern that the hospital's heart program was not "moving forward effectively." Clinch was the hospital's medical director of cardiac surgery. Nellestein mentioned some of his concerns to Curtis Kretzinger, the hospital's chief operating officer, and to Steven McCamy, administrator of the hospital's medical group. When Nellestein met with Kruse during spring 1999 to discuss his pay, he presented data comparing his production with Clinch's. He met with Kruse again, sometime during late 1999 or early 2000, to discuss extending his contract and removing Scott Koellicker, an administrator who supervised the hospital's cardiac surgery, from Nellestein's chain of command.

During June 2000, while Nellestein was on leave, Clinch performed 17 surgeries. When Nellestein returned, someone told him that complications had beset Clinch's surgeries. Nellestein reviewed records of Clinch's surgeries, but he did not try to determine the complications' causes. At some point, apparently after November 2000, Nellestein recorded that the surgeries had a "35% major complication rate."

Charles Mullican, the hospital's chief medical officer, became aware of complications with Clinch's surgeries. Nellestein acknowledged that he may have told Mullican of the complications, but he did not give Mullican a written analysis or complain about Clinch's performance.

Sometime during July or August 2000, Nellestein told Kretzinger during a hallway conversation that he was not content at Heartland Regional and was considering leaving the hospital's staff. Nellestein's discontentment surprised Kretzinger. He later summoned Nellestein to his office where Nellestein expressed concerns that the hospital's heart program was "not moving forward effectively" and noted problems with infection rates, referrals, volume, and results. He expressed specific concerns about Clinch's performance, which Kretzinger characterized in sworn testimony as "vague" and part of Nellestein's general critique of the heart program.

Kretzinger told Heartland Health's Clinical Business Strategy Group that Nellestein had threatened to leave and that he was discussing a list of issues with Nellestein. Asked whether or not Nellestein had conditioned his staying at Heartland Regional on Clinch's removal, Kretzinger responded, "Absolutely not."

On August 9, 2000, Kruse, Kretzinger, and Nellestein had a dinner meeting during which Nellestein accepted Kruse's and Kretzinger's offer of Clinch's position as medical director of cardiac surgery. They discussed Clinch's future with the hospital, but whether or not Kruse and Kretzinger decided to remove staff privileges from Clinch entirely at that meeting is disputed.

During August and September 2000, Kretzinger initiated a review of Heartland Regional's cardiac program. He ordered Cindy McCoy, a former infectious disease nurse manager at the hospital, specifically to prepare a report of Clinch's infection rates. McCoy testified that Kretzinger told her that "Heartland wanted to terminate the contract of Dr. Steven Clinch and use his high infection rates as a reason," but Kretzinger denied it in his testimony. From McCoy's review, Kretzinger found no problems with Nellestein's or Clinch's morbidity, mortality, or infection rates.

Nellestein signed new contracts with Heartland Regional on October 4, 2000. One made him medical director of the hospital's cardiac surgery, and the other was an employment agreement. Midwestern Health Management terminated its contract with Clinch during the next day. McCamy later told Clinch that his contract had been terminated "without cause." Although Heartland Regional administrators expressed willingness for Clinch to continue his staff membership and clinical privileges, Midwestern Health Management refused to release Clinch from a covenant not to compete. On October 6, Heartland Regional contracted with another cardiac surgeon, Jane Schwabe, and hospital administrators removed Koelliker from the heart program chain of command, as Nellestein had requested.

During Spring 2001, Heartland Regional's administrators realized that, because Clinch's privileges extended beyond expiration of his covenant not to compete, he would be eligible to return to Heartland Regional as a staff surgeon at the end of the year. Administrators asked an attorney to develop an exclusive contract arrangement for cardiac surgery at Heartland Regional that would prevent Clinch from returning after his non-compete covenant expired.

During July 2001, Clinch notified Heartland Regional that he intended to return to an independent practice at Heartland Regional after his non-compete covenant expired. Mullican informed him that the hospital's board was considering an exclusive arrangement with its current cardiac surgeons. During September, the board decided to exclude, temporarily, non-employed physicians from providing cardiovascular services at the hospital, and the board made the exclusion permanent during March 2002. The exclusion prohibited Clinch from performing services at the hospital.

Clinch sued the defendants for various antitrust violations and several common law claims, including a claim against Nellestein for tortious interference. The circuit court granted defendants' motion for summary judgment on all counts, and Clinch appeals. Clinch did not appeal the circuit court's order granting summary judgment on his claims for promissory estoppel, fraudulent misrepresentation, and negligent misrepresentation.

Before considering the merits of Clinch's assertion that the circuit court erred in granting summary judgment on his claim for tortious interference, we address Nellestein's argument that Clinch is raising a new issue on appeal. Nellestein complains that Clinch averred to the circuit court that Nellestein interfered with his contract, but now, on appeal, he asserts that Nellestein interfered with his business relationship.

Clinch labeled his cause of action against Nellestein as "tortious interference with contract" in both his petition and responses to defendants' motion for summary judgment. The circuit court also labeled Clinch's cause of action as "tortious interference with contract." Clinch's suggestions in opposition to defendants' motion for summary judgment mentioned interference with Clinch's employment relationship. On appeal, Clinch argues that Nellestein tortiously interfered with his business relationship with Midwestern Health Management and Heartland Regional.

Appellants cannot raise new issues on appeal, but Clinch is not raising a new issue. The relationship protected by the tort of interference with a business relationship can take several forms including, most obviously, a contractual one. Indeed, the Supreme Court has noted that the protected relationship can be a "contract or a valid business relationship or expectancy." Fischer, Spuhl, Herzwurm and Associates, Inc. v. Forrest T. Jones and Company, 586 S.W.2d 310, 315 (Mo. banc 1979) (emphasis omitted). When Clinch referred on appeal to his business relationship with Midwestern Health Management, he obviously was referring to the same relationship that he described during circuit court proceedings as a contractual relationship.

We turn to the merits of Clinch's contention that the circuit court erred in issuing summary judgment for Nellestein. Our review of the circuit court's summary judgment is essentially de novo. ITT Commercial Finance Corporation v. Mid-America Marine Supply Corporation, 854 S.W.2d 371, 376 (Mo. banc 1993). To enter summary judgment, the circuit court had to determine that the parties were not disputing any material factual issue and that the party seeking summary judgment was entitled to judgment as a matter of law. Rule 74.04(c)(6); ITT, 854 S.W.2d at 377.

[A] "defending party" may establish a right to judgment by showing (1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to...