Clough v. Adventist Health Systems, Inc.
| Decision Date | 05 September 1989 |
| Docket Number | No. 18056,18056 |
| Citation | 1989 NMSC 56,780 P.2d 627,108 N.M. 801 |
| Parties | , 87 A.L.R.4th 831, 1989-2 Trade Cases P 68,836 John CLOUGH, M.D., and Jeanne Clough, Plaintiffs-Appellants, v. ADVENTIST HEALTH SYSTEMS, INC., d/b/a Sierra Vista Hospital, Robert Trimble, Dominica Rush, Donald Clark, M.D., Mario Herrera, M.D., Reuben Marchisano, M.D., Pete Grenko, M.D., and James Hockenberry, M.D., all individual defendants sued in their individual capacities, and as officials of the hospital, Defendants-Appellees. |
| Court | New Mexico Supreme Court |
Glore & Venable Associates, Denise M. Glore, Albuquerque, for plaintiffs-appellants.
Montgomery & Andrews, John B. Pound, Santa Fe, for defendants-appellees.
This action arises from the limited suspension of Dr. Clough's privileges at Sierra Vista Hospital (SVH) in Truth or Consequences, New Mexico. Dr. Clough and his wife sued five physicians who were on the medical staff of SVH during the time of suspension (Drs. Marchisano, Clark, Herrera, Grenko, and Hockenberry). Dr. Clough also sued the SVH President (Dee Rush), the SVH Chairman of the Board of Directors and Vice-President of Adventist Health Systems, Inc. (Robert Trimble), and the Adventist Health Systems, Inc., a foreign corporation doing business in New Mexico as SVH, alleging antitrust, defamation, interference with business relations, breach of contract, wrongful termination, and intentional infliction of emotional distress claims. The last two counts were dismissed. All individual defendants were sued in their individual capacities and as officials of SVH. Subsequently, all defendants filed a summary judgment motion supported by a brief, affidavits, answers to interrogatories, hospital and medical staff bylaws, and a deposition. In response, Dr. Clough submitted a transcript from an administrative hearing, depositions, and a brief. On September 9, 1988, the district court granted defendants summary judgment dismissing all claims by plaintiffs against all defendants. Plaintiffs appeal. 1 We affirm.
Dr. Clough, a board certified surgeon, has practiced medicine in Truth or Consequences since April 1982. In March 1982, Dr. Clough applied for appointment to the medical staff of SVH as a general surgeon. On April 26, 1982, Dee Rush, SVH President, wrote a letter to Dr. Clough informing him that the SVH Board of Directors granted Dr. Clough active staff privileges on February 15, 1982. Subsequently, Dr. Clough's applications for reappointment to the medical staff and renewal of privileges for the years 1983 and 1984 were approved.
On December 5, 1984, Dr. Clough admitted Meda Lee Fettas, a 74-year-old patient, for a vaginal hysterectomy. The next day, Dr. Clough, with his assistant Dr. Hockenberry, performed the vaginal hysterectomy and made repairs to the bladder and rectum. During the evening of December 6, Dr. Clough learned from a nurse's report and observed that Meda Fettas had no urinary output. This lack of urinary output indicated that Dr. Clough had placed sutures too close to the ureters and blocked them during the operation. When an individual's ureters are blocked, kidney failure can result, a life-threatening condition. On the morning of December 7, 1984, Dr. Clough administered an intravenous pyelogram (IVP), an X-ray of the kidneys, ureters, and bladder with the aid of an intravenous injected dye. The IVP suggested blockage of both ureters. Dr. Clough then asked Dr. Leonard Becker to insert catheters into the ureters to identify the exact point of blockage. After insertion of the catheters, Dr. Becker could not identify the uretal openings. Dr. Clough also consulted with Dr. Musser, a urologist in Las Cruces, New Mexico, to obtain information on performing a second surgery. Dr. Clough, without any assistance, then reoperated on Meda Fettas to remove the sutures. During the second surgery, Dr. Clough removed the sutures and obtained an immediate flow of urine. Dr. Clough thought he relieved the blockage. Dr. Clough then got an X-ray on the operating table that indicated a faint visualization of both ureters. He resutured the area. Dr. Clough, however, did not administer an IVP again at any time following the second surgery. Meda Fettas was discharged on December 13, 1984.
On December 24, 1984, Meda Fettas was readmitted to SVH complaining of pain in her right lower abdomen. An IVP was administered that showed blockage of the right ureter. Dr. Clough then arranged for the transfer of Meda Fettas to Dr. Musser for treatment. Dr. Musser operated On January 14, 1985, Meda Fettas called Dee Rush, SVH President, threatening to file suit. Meda Fettas told Dee Rush that Dr. Musser had identified a suture in her ureter, and she complained of Dr. Clough's treatment. In her affidavit, Dee Rush stated that Meda Fettas and her daughter visited her on January 21, 1985, to discuss Dr. Clough's surgery. On January 22, 1985, Meda Fettas' daughter wrote Dee Rush a letter, complaining of Dr. Clough's treatment of her mother. Following these complaints, Dee Rush took an incident report she received from Ann Thomas, a registered nurse, to the executive committee for their review. This report related the lack of urinary output after the first surgery, Dr. Becker's unsuccessful catherization of the ureters, the occurrence of the second surgery, and the return of urinary output after the second surgery. On January 22, 1985, the executive committee, comprised of Drs. Clark and Herrera, met. The executive committee, who reviewed Meda Fettas' chart and the incident report, recommended the suspension of Dr. Clough's elective privileges and that Dr. Clough work under Dr. Hockenberry's direct supervision. A medical staff meeting was held on the same day. Our review of the physicians' affidavits, their depositions, and Dee Rush's deposition shows that Dr. Clark discussed the background of Meda Fettas, including the incident report and medical charts, Meda Fettas and her daughter's complaints, and Dr. Clough's failure to use an IVP after the second surgery at the meeting. The medical staff unanimously voted to suspend Dr. Clough's elective privileges, and placed Dr. Clough under the direct supervision of Dr. Hockenberry for emergencies. Dee Rush then wrote Dr. Clough a letter to inform him of the medical staff's decision and the referral of their action to the SVH Board of Directors within a ten-day period.
[108 NM 803] on Meda Fettas removing a suture from her right ureter.
On January 25, 1985, Dr. Clough wrote a letter to Dee Rush requesting the appointment of a hearing committee, pursuant to the medical staff bylaws, to consider the suspension of his clinical privileges. On January 28, 1985, the SVH Board of Directors met and modified the medical staff's decision. The Board voted to reinstate Dr. Clough's elective privileges and require only future supervision for surgical procedures. On February 9, 1985, Dr. Clough requested another hearing before a hearing committee to consider "the decrease in his privileges." After receipt of Dr. Clough's letter, Dee Rush, with Dr. Clough's approval, tried to assemble a panel of outside physicians who had not previously participated in the medical staff's decision. A panel of three physicians from Albuquerque were assembled to serve on the hearing panel. On April 3, 1985, the panel held its meeting and modified the board's decision. The panel believed that the requirement of supervision for surgical procedures was unnecessary. The hearing panel recommended that Dr. Clough be supervised in all vaginal surgeries. At an executive committee meeting held on April 30, 1985, and at a Board of Directors meeting, the members decided to remove the supervisory restrictions for surgical procedures. In May 1985, Dr. Clough resigned from the medical staff.
If the defendants make a prima facie showing of no genuine issue of material fact and that as a matter of law they were entitled to summary judgment, then the burden shifted to Dr. Clough to show at least a reasonable doubt as to whether a genuine issue for trial existed. Koenig v. Perez, 104 N.M. 664, 726 P.2d 341 (1986). Moreover, mere argument or bare contentions of the existence of a material issue of fact is insufficient. Spears v. Canon de Carnue Land Grant, 80 N.M. 766, 769, 461 P.2d 415, 418 (1969). The party opposing the summary judgment motion must adduce evidence to justify a trial on the issues. Id.
Dr. Clough's antitrust claim is that the physicians on the executive committee, the credentials committee, the SVH Board of Directors, and the hospital staff combined and conspired to affect his right to practice medicine at SVH by preventing him from receiving patient referrals, by forcing him to abide by an unreasonable condition placed on his practice, and by making him appear to be a less than fully qualified physician. Dr. Clough alleges the combination was an...
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