Egan v. St. Anthony's Medical Center

• Decision Date: 09 June 2009
• Docket Number: No. ED 92207.,ED 92207.
• Citation: 291 S.W.3d 751
• Parties: Robert C. EGAN, M.D., Appellant, v. ST. ANTHONY'S MEDICAL CENTER, Respondent.
• Court: Missouri Court of Appeals

291 S.W.3d 751

Robert C. EGAN, M.D., Appellant, v. ST. ANTHONY'S MEDICAL CENTER, Respondent.

No. ED 92207.

Missouri Court of Appeals, Eastern District, Division One.

June 9, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 3, 2009.

Application for Transfer Denied October 6, 2009.

Alan G. Kimbrell, Ballwin, MO, for appellant.

Neal F. Perryman, St. Louis, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Dr. Robert C. Egan appeals from the judgment of the Circuit Court of St. Louis County denying his request for injunctive relief against St. Anthony's Medical Center. Following St. Anthony's decision to permanently suspend his medical staff privileges, Dr. Egan filed suit to obtain an order requiring St. Anthony's to hold a new hearing regarding the suspension of his privileges, and to recall mandatory reports St. Anthony's submitted to the Missouri State Board for the Healing Arts and the National Data Bank regarding the revocation of his privileges. The trial court denied Dr. Egan's requested relief after determining that "St. Anthony's substantially complied with its own Bylaws before Dr. Egan's privileges were permanently revoked." On appeal, Dr. Egan raises six points, all of which challenge the trial court's conclusion that St. Anthony's "substantially complied" with its Bylaws. We affirm.

Background and Procedural History

Dr. Egan has been a Board-certified general and vascular surgeon in Missouri for the past forty-two years. Prior to 2005, Dr. Egan was a member of the medical staff at St. Anthony's Medical Center for over twenty years where he performed an average of two hundred surgical procedures per year.

Like every physician on the medical staff at St. Anthony's, Dr. Egan was subject to continuous peer review. During 2003, a review committee identified a pattern of clinical occurrences by Dr. Egan which it considered to "fail to meet community standards of medical care." Subsequently, several internal committees conducted a comprehensive review of Dr. Egan's clinical practice at St. Anthony's, and, thereafter, submitted their reports to the Medical Executive Committee (MEC). Under St. Anthony's Bylaws,¹ the MEC is charged with the duty of "receiv[ing] reports from the standing and special committees and tak[ing] appropriate action upon them." In the fall of 2004, after reviewing the reports regarding Dr. Egan, the MEC imposed a "corrective action plan" which required that Dr. Egan permit concurrent proctoring of all cases and complete a behavioral health evaluation. Following the imposition of the corrective action plan, Dr. Egan's proctor prepared a report regarding Dr. Egan's questionable judgment during a surgery performed on June 13, 2005. Additionally, Dr. Egan's behavioral health evaluation, which was performed by Dr. Michael V. Oliveri, indicated findings of early, abnormal mental decline. After receiving these negative reports, on June 22, 2005, the President of the Medical Staff, the Surgery Department Director, and the CEO of St. Anthony's concurred in a decision to summarily suspend Dr. Egan's medical staff privileges.

A. Notice

Pursuant to the Bylaws, which require "prompt written notice" of an "adverse recommendation or action", on June 22, 2005, the President of St. Anthony's Medical Staff hand-delivered a letter to Dr. Egan notifying him that his medical staff privileges had been "summarily suspended" in order to "avoid imminent threats" to St. Anthony's patients.² The letter explained that the "summary suspension [was] necessitated by the report of Michael V. Oliveri, Ph.D., ABPP, who found `mild, relatively nonspecific neurocognitive abnormality classified as suggestive of early abnormal decline'" and because, on June 13, 2005, Dr. Egan "performed a right colectomy on an 81-year old female patient" without first consulting the patient's gastroenterologist who later indicated that surgery was not necessary.

Enclosed with the letter was a "Summary of Hearing Rights" informing Dr. Egan that under the Bylaws he was entitled to request a hearing and, upon such a request, would receive written notice "[d]etailing the reasons for the Adverse Action, including the acts or omissions with which [he was] charged." On July 18, 2005, Dr. Egan submitted a written request for a hearing and, in it, asked that he be further advised of the "acts or omissions" with which he was charged. Subsequently, on July 26, 2005, St. Anthony's sent Dr. Egan further written notice that reiterated Dr. Oliveri's behavioral health evaluation and the unnecessary colectomy Dr. Egan performed on June 13, 2005. Additionally, the notice stated that "[a]t the hearing, the Medical Executive Committee designees will present evidence on the cases described in Exhibit 1." Exhibit 1, which was attached to the notice, listed ten of Dr. Egan's cases and described the patients' general information, procedures performed, dates of treatment, comments, and the relevant concerns with Dr. Egan's performance in each case.

B. The Hearing

On September 12, October 24, and December 12, 2005, Dr. Egan and the MEC, both represented by counsel, appeared before a Hearing Committee and presented evidence, including sworn testimony and exhibits. Specifically, the MEC, which under the Bylaws had the initial burden of justifying the summary suspension of Dr. Egan's staff privileges, introduced evidence regarding six of the ten cases listed in the July 26, 2005 notice. Next, Dr. Egan presented evidence defending his professional judgment in the cases raised by the MEC, as well as medical evidence rebutting Dr. Oliveri's report regarding his "abnormal mental decline." After the hearing closed, both the MEC and Dr. Egan submitted written statements and recommendations to the Hearing Committee.

Thereafter, on January 31, 2006, the Hearing Committee issued its findings and recommendation that St. Anthony's permanently suspend Dr. Egan's staff privileges. The Hearing Committee rendered no findings regarding the MEC's claim of Dr. Egan's abnormal mental decline. Rather, the Hearing Committee based its recommendation solely on two of the six cases presented by the MEC at the hearing.

The first case, as described in the Hearing Committee's findings, involved Dr. Egan performing a diverting colostomy on D.P. Specifically, the findings stated that Dr. Egan had "diverted the wrong limb of the bowel to the surface, resulting in a complete colonic obstruction." After realizing his mistake, Dr. Egan performed a second surgery on D.P. which "revised the colostomy." While the Hearing Committee acknowledged that "diverting the wrong limb of the bowel to the surface is a rare, but known mistake", the Committee faulted Dr. Egan for "fail[ing] to accurately document what actually occurred during the first surgery anywhere in the patient's medical record (specifically, his operative report), and fail[ing] to inform the patient or her family of his mistake." The findings further stated that "[Dr. Egan's] failure to disclose the mistake to the patient and her family or to acknowledge that disclosure was required does not comport with the standard of care at this hospital, and subjected the other members of the treatment team to increased liability" * * * "In [the case with D.P.], Dr. Egan violated the law and/or principles of medical ethics".

The second case involved the June 13, 2005 surgery described in the first notice given to Dr. Egan where he had performed an unnecessary colectomy on 81-year-old H.S. In its findings, the Hearing Committee described how Dr. Egan performed the colectomy to remove a tumor without first consulting with H.S.'s gastroenterologist, Dr. Bhat, who had already successfully removed the tumor two months earlier. The Hearing Committee concluded that "there were no indications for the colectomy performed on [H.S.]" and "[t]here [was] no justification for Dr. Egan's failure to consult with Dr. Bhat" prior to performing the colectomy. The Hearing Committee further opined that Dr. Egan's "attempt to place the blame for his mistake on the patient or her other physician is unprofessional and unacceptable; demonstrating to the Hearing Committee that Dr. Egan has not accepted full responsibility for his actions and therefore is likely to repeat his mistakes."

C. Appeal

Following the Hearing Committee's decision, Dr. Egan timely requested appellate review. Under the Bylaws, an "affected practitioner" may seek review by a six-member Appellate Review Committee comprised of three members of St. Anthony's Board of Directors and three Medical Staff members selected by the affected practitioner. The Appellate Review Committee may review the record made at the previous hearing, the Hearing Committee's report, and written statements submitted by the MEC and the affected practitioner. The Appellate Review Committee, however, may not accept new oral or written evidence unless "such evidence could not have been made available to the Hearing Committee in the exercise of due diligence[.]" Additionally, the affected practitioner and MEC members are not permitted to be present during the Appellate Review Committee's review and deliberations.

In accordance with the above mentioned Bylaws, an Appellate Review Committee was formed and reviewed the Hearing Committee's findings and recommendation. During the Appellate Review Committee's deliberations, three directors and two physicians selected by Dr. Egan were in attendance.³ Following its review, the Appellate Review Committee voted 4-to-1 to affirm the Hearing Committee's recommendation to permanently suspend Dr. Egan's staff privileges. The sole dissenter, Dr. Bruce Schlafly, submitted a written statement to St. Anthony's Board of Directors recommending that Dr. Egan's privileges be restored. In his statement, Dr. Schlafly claimed that a second appellate review of the Hearing Committee's recommendation was necessary because one of the Appellate Review Committee ...