DiMarco v. Rome Hosp. and Murphy Memorial Hosp.
| Decision Date | 02 January 1992 |
| Docket Number | 502 and 637,D,Nos. 500,501,s. 500 |
| Citation | 952 F.2d 661 |
| Parties | Antonino T. DiMARCO, M.D., Plaintiff-Appellee, Cross-Appellant, v. ROME HOSPITAL AND MURPHY MEMORIAL HOSPITAL, the Board of Managers of Rome Hospital and Murphy Memorial Hospital, Kirk B. Hinman, Henry A. Sparks, M.D., Medical Director of Rome Hospital and Murphy Memorial Hospital, John A. Gorman, Chief Executive Officer of Rome Hospital and Murphy Memorial Hospital, HCA Management Company, Incorporated, Charles M. Brown, M.D., James D. Dunda, M.D., Neville W. Harper, M.D., Lawrence Burgreen, M.D., and Herb Skogland, M.D., Defendants-Appellants, Cross-Appellees. ockets 91-7725, 91-7747, 91-7777 and 91-7779. |
| Court | U.S. Court of Appeals — Second Circuit |
Leonard M. Rosenberg, Great Neck, N.Y. (Marialana M. Gravano, Garfunkel, Wild & Travis, P.C., of counsel), for defendants-appellants, cross-appellees Rome Hosp. and Murphy Memorial Hosp., Bd. of Managers of Rome Hosp. and Murphy Memorial Hosp., Kirk B. Hinman, and Henry A. Sparks, M.D.
James O'Shea, Syracuse, N.Y. (Michael P. Ringwood, Smith, Sovik, Kendrick, Schwarzer & Sugnet, P.C., of counsel), for defendants-appellants, cross-appellees Charles M. Brown, M.D., James D. Dunda, M.D., Neville W. Harper, M.D., Lawrence Burgreen, M.D., and Herb Skogland, M.D.
Michael J. Hutter, Albany, N.Y. (Barry A. Gold, Dominique A. Pollara, Thuillez, Ford, Gold & Conolly, of counsel), for defendants-appellants, cross-appellees John A. Gorman and HCA Management Co., Inc.
Jules L. Smith, Rochester, N.Y. (Steven V. Modica, Blitman & King, of counsel), for plaintiff-appellee, cross-appellant Antonino T. DiMarco, M.D.
Before PRATT, MAHONEY and McLAUGHLIN, Circuit Judges.
The defendants, a hospital and its various managers and administrators, appeal from the denial of their motion for summary judgment based on the defense of qualified immunity. All parties ask us to invoke our pendent appellate jurisdiction, see, e.g., San Filippo v. U.S. Trust Co. of New York, 737 F.2d 246, 255 (2d Cir.1984), cert. denied, 470 U.S. 1035, 105 S.Ct. 1408, 84 L.Ed.2d 797 (1985), in order to reach other claims. Because we conclude that resolution of the qualified immunity defense involves questions of both law and fact, we dismiss the appeal. We decline to exercise pendent appellate jurisdiction over the other issues advanced on defendants' appeal, and we dismiss the cross-appeal as well.
Dr. Antonino DiMarco joined the active medical staff of Rome Hospital and Murphy Memorial Hospital (which, despite its name, is one hospital) in 1978, and was granted certain medical privileges. One of these privileges was "esophageal dilation", a procedure in which a flexible tube is inserted through the mouth in order to expand the esophagus. This procedure allows the insertion of a medical instrument, and may also be used to relieve excessive closure or restriction. This procedure is not performed very often (26 times by all doctors at the hospital in 1990), although DiMarco himself has performed esophageal dilation over 20 times in a seven-year period.
From 1979 to 1985, all of DiMarco's privileges were routinely reviewed, and he was "recredentialed" each year without any restrictions. In 1985, DiMarco shared some of his concerns regarding patient care with the New York State Department of Health (DOH). After a comprehensive investigation into the hospital's operations, the DOH found the hospital deficient in a number of areas, confirming many of the problems that DiMarco had identified. In response to the DOH findings, the hospital promulgated a "Plan of Correction", which included an agreement to review and reevaluate the credentials of its professional staff.
In 1986, DiMarco once again applied to have his privileges renewed and to be reappointed to the medical staff of the hospital. The hospital's credentials committee met (belatedly, it appears) on March 23, 1987, and renewed all of DiMarco's clinical privileges, except the privilege to perform esophageal dilation. The hospital claims that the endoscopy committee met in January 1987, and determined that esophageal dilation privileges would be limited to those physicians who had reached the highest level of privileges in gastroenterology (simultaneously implying that DiMarco had simply not attained this level of expertise). DiMarco, on the other hand, claims that the denial of this privilege was part of the hospital's retaliation against him for "blowing the whistle" to DOH. The credentials committee's minutes reflect only that the privilege was "withheld on advice from Dr. Roy."
The credentials committee reassembled on April 20, 1987, in order to review eight "incidents" (defined by the hospital as "any happening which is not consistent with the routine operation of the hospital or the routine care of a particular patient", including "an accident or a situation which may result in an accident") involving DiMarco. After reviewing these incidents, the credentials committee voted to continue DiMarco's privileges (with the continued exception of esophageal dilation privileges). The following chart briefly recounts these incidents, as summarized by the credentials committee's chart:
Date Incident Conclusion Action taken
11/27/84 Improper transfer of Poor judgment Letter of admonition
patient to ICU
12/2/84 Disagreement between Lack of Letter of admonition
DiMarco and nurse professional
performance
3/10/86 Disagreement between Lack of Letter to Executive
DiMarco and nurse professional Committee
performance
5/29/86 Breach of patient Refused to respond Reported to Executive
confidentiality to chairman of Committee, no
medical corrective action
department
7/23/86 Streptokinase therapy Poor judgment Letter to file
9/17/86 Disruption of medical Meeting cancelled; Reported to Executive
department meeting later reconvened Committee, no
corrective action
1/17/87 Delay in responding to Delay occurred Monitor consultations
consultation request
3/10/87 Inadequate orders for ICU Unprofessional Letter of admonition
patient behavior
----------
DiMarco, not surprisingly, draws different conclusions regarding his behavior at the time of these incidents, construing most of them as necessary to further the interests of patient care. He points out that the DOH, through its office of Professional Medical Conduct (OPMC), investigated all of these incidents (with the exception of the meeting interruption). Following each investigation, OPMC concluded that DiMarco had not engaged in any misconduct. DiMarco further submitted a signed statement from Rita Hoffman (the nurse involved in the March 10, 1986 incident), which stated that DiMarco's conduct on that occasion was justified by the situation, and that DiMarco's conduct in her presence had been "fine" otherwise.
On November 20, 1987, DiMarco was notified that the Board of Managers had accepted the executive committee's recommendation that he be reappointed to the medical staff--but again with strings attached. DiMarco was informed that his professional mien would be monitored for a probationary period "with respect to [his] obligation to work in a cooperative supportive manner with members of the medical By letter dated August 31, 1989, the hospital informed DiMarco that his hospital privileges were suspended for 90 days. Also, "effective immediately, [DiMarco's] professional demeanor and behavior should be monitored on a weekly basis with weekly meetings with [DiMarco, the hospital's CEO], the director of nursing, medical director and the chairman of the Department of Medicine." DiMarco's hospital activities were to be monitored and monthly reports sent to the executive committee. The suspension, according to the letter, was "based on a determination by the Executive Committee that you have repeatedly violated the terms of your probation, and in particular, your unprofessional demeanor and continuing course of inappropriate and disruptive behavior."
and nursing staff." Later, this monitoring period was extended for an additional year. Although his esophageal dilation privileges had originally been denied in 1987, DiMarco was first informed of this development in April 1988
DiMarco exercised his right (conferred by the hospital bylaws) to a hearing, and on December 22, 1989, the hospital's "Fair Hearing Committee" reached the following decisions:
1. On the basis of information provided the Committee during the Hearing regarding the Emergency Room incident on 12-28-88, [DiMarco] was found in violation of [the Medical Staff Bylaws].
2. Resultant from violations of the Bylaws punition is warranted.
3. This punition shall be recommended as follows:
Implementation of suspension of [DiMarco] be imposed contingent upon his non-compliance with the stipulations noted below (the duration of the suspension, if any required, is to be determined in a subsequent report):
a. [DiMarco] must submit a written statement of his willingness to comply with all Medical Staff Bylaws, particularly with those articles of previous non-compliance.
b. [DiMarco] undergo psychiatric evaluation by an impartial source, with a report of the findings being sent to the Executive Committee of the Medical Staff.
c. [DiMarco's] probationary status be continued.
By decision of March 29, 1990, the hospital's appellate review committee agreed with the Fair Hearing...
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