Feller v. Miriam Hospital

Decision Date30 October 2009
Docket NumberC.A. PB 07-5603
PartiesJOSEPH FELLER, M.D. v. THE MIRIAM HOSPITAL and HARRY SAX, M.D., individually and in his capacity as Surgeon in Chief, and KATHLEEN HITTNER, M.D., individually and in her Capacity as President and CEO of THE MIRIAM HOSPITAL
CourtRhode Island Superior Court

JOSEPH FELLER, M.D.
v.
THE MIRIAM HOSPITAL and HARRY SAX, M.D., individually and in his capacity as Surgeon in Chief, and KATHLEEN HITTNER, M.D., individually and in her Capacity as President and CEO of THE MIRIAM HOSPITAL

C.A. No. PB 07-5603

Superior Court of Rhode Island

October 30, 2009


DECISION

SILVERSTEIN, J.

Before this Court is a Sup. R. Civ. P. 56 motion for summary judgment brought by The Miriam Hospital ("Miriam"), Kathleen Hittner, M.D., and Harry Sax, M.D. (collectively, "Defendants"). They claim they are entitled to summary judgment as to Counts One through Seven because (1) they are entitled to immunity from liability under the Health Care Quality Improvement Act ("HCQIA or Act");[1] (2) the allegedly defamatory statements made by Dr. Sax were qualifiedly privileged and not a result of an improper motive; and (3) Plaintiff has not met his burden of proof under the Rhode Island Civil Rights Act ("RICRA").

I

Facts and Travel

Plaintiff is a Rhode Island licensed physician who has had clinical privileges at Miriam since October 1, 1984. While at Miriam, Plaintiff had a history of complaints from 1987 to 2002. Two particular complaints in 2002 escalated into disciplinary action by Miriam. On February 7, 2002, a complaint was made against Dr. Feller that he took inappropriate photographs of a patient following a colonoscopy procedure. Dr. Feller admitted the conduct, explaining that it was discussed with the patient in advance and was to be done as a joke. (Pl. Aff. ¶ 7). As a result of this conduct, the Plaintiff's privileges at Miriam were immediately suspended, and an ad hoc committee convened to review the matter. (Defs. Ex. 25). The committee, which reported to the Miriam Executive Committee ("MEC") in accordance with Miriam Hospital Medical Staff Association Bylaws ("Miriam Bylaws"), recommended that Dr. Feller be suspended for two weeks and that "any future incidents regarding Dr. Feller's behavior will be subject to more stringent disciplinary actions." (Defs. Ex. 28). The MEC endorsed these recommendations and notified Dr. Feller on March 13, 2002.

Another complaint was filed against the Plaintiff on November 27, 2002, by a fellow Miriam physician for unprofessional conduct. This complaint resulted in a three month suspension of Dr. Feller's privileges by the MEC. However, pursuant to Miriam Bylaws, Dr. Feller requested an appeal of the pertinent MEC decision. On July 1, 2003, before the appeal hearing actually occurred, the parties entered into a Consent Agreement,[2] which obviated the need for such hearing. (Defs. Ex. 36; Pl. Ex. B). Pursuant to the Consent Agreement, Plaintiff agreed to a twenty-eight day suspension. In addition, Plaintiff and Miriam agreed that any future complaints against Dr. Feller would be reviewed by a panel consisting of three members: Dr. Kathleen Hittner, then President and Chief Executive Officer of Miriam; Dr. Boyd King, Senior Vice President of Medical Affairs for Lifespan Corp.; and Dr. James Myers, Miriam Hospital Staff Association member. The Consent Agreement provided that the panel was to make a determination as to whether any new complaint requires termination of Dr. Feller's clinical privileges. Furthermore, Dr. Feller waived his right to an appeal of the panel's determination through any process outlined in the Miriam Bylaws, but retained his right to proceed in a court of appropriate jurisdiction.

In June of 2005, Dr. Harry Sax became Surgeon-in-Chief at Miriam. On May 17, 2007, Dr. Sax sent a complaint to Dr. Hittner concerning Dr. Feller's treatment of a patient as well as alleging that he backdated an entry in that patient's record. Acting pursuant to the Consent Agreement, the panel reviewed the complaint and conducted an investigation. The panel conducted an investigative interview of Dr. Feller, with counsel present, concerning Dr. Sax's complaint. On July 23, 2007, the panel informed Plaintiff that after consideration of the complaint and the history of complaints and disciplinary actions relating to him, it unanimously decided to terminate his privileges and association with Miriam. (Defs. Ex. 53). Plaintiff proceeded to file the instant action.

II

Standard of Review

Summary judgment is proper when, after reviewing the admissible evidence in the light most favorable to the non-moving party, "no genuine issue of material fact is evident from the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, and the motion justice finds that the moving party is entitled to prevail as a matter of law." Smiler v. Napolitano, 911 A.2d 1035, 1038 (R.I. 2006) (quoting Rule 56(c)). When considering a motion for summary judgment, "the court may not pass on the weight or credibility of the evidence but must consider the affidavits and other pleadings in a light most favorable to the party opposing the motion." Lennon v. MacGregor, 423 A.2d 820, 822 (R.I. 1980). During a summary judgment proceeding, "the justice's only function is to determine whether there are any issues involving material facts." Id. (quoting Steinberg v. State, 427 A.2d 338, 340 (R.I. 1981)). "Therefore, summary judgment should enter 'against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case * * *.'" Lavoie v. North East Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (construing the substantially similar federal rule)).

III

Discussion

A

Immunity

In Count One of the complaint, Plaintiff alleges violation of G.L. 1956 § 23-17-23, which provides the board of trustees of a hospital or other appropriate body with the authority to suspend deny, revoke, or curtail the privileges of any staff member for good cause. In addition, it provides immunity for any hospital, hospital board of trustees, or any hospital medical staff committee that takes these actions in accordance with hospital bylaws. Section 23-17-23(b). In their motion for summary judgment, Defendants have asserted an affirmative defense of immunity under the HCQIA, the analogous federal statute. 42 U.S.C. § 11111 (2000). In opposition, Plaintiff contends that Defendants' failure to raise immunity from liability in their answer as an affirmative defense constitutes a waiver of this defense; and further, that Defendants' termination of the Plaintiff pursuant to the Consent Agreement was in bad faith and therefore failed to meet the criteria necessary for immunity.

As a preliminary matter, the Plaintiff argues that Defendants have waived an affirmative defense of immunity under the HCQIA pursuant to Sup. R. Civ. P. 8(c). Rule 8(c) does in pertinent part read "a party shall set forth affirmatively . . . any . . . matter constituting an avoidance or affirmative defense." Sup. R. Civ. P. 8(c). In support of his argument, Plaintiff relies upon the holding in World-Wide Computer Resources, Inc v. Arthur Kaufman, that "the failure to raise an affirmative defense in a timely manner constitutes a waiver of that defense." 615 A.2d 122, 124 (R.I. 1992). However, the rationale behind this holding is that the special pleading of an affirmative defense protects a party from unfair surprise at trial. Id. In WorldWide Computer Resources, the defendants had waived an affirmative defense by failing to raise it for the first time until during the trial even though the case had been pending for more than four years. Id. at 123. Here, the Defendants filed their motion for summary judgment on March 25, 2009, asserting that the HCQIA granted them immunity from Plaintiff's claims. Subsequently, Plaintiff filed his response on May 15, 2009, with the hearing on summary judgment in this case not until June 2, 2009. Consequently, Plaintiff was fairly advised of the Defendants' reliance on an immunity defense two months before the hearing on summary judgment and was therefore protected from any unfair prejudice. See Hanley v. State, 837 A.2d 707, 710 (R.I. 2003) (plaintiffs received three months' notice of the state's specific reliance on immunity defense before the hearing on summary judgment motion and consequently did not waive the affirmative defense). After reviewing the record and mindful that the Rules of Civil Procedure should be liberally construed, the Court finds that the Defendants did not waive an immunity defense under the HCQIA.

A threshold issue then becomes the scope of immunity under the HCQIA and whether the Defendants qualify for such immunity under the Act. The HCQIA provides immunity to "the professional review body," "any person acting as a member or staff to the body," and "any person who participates with or assists the body with respect to that action." 42 U.S.C. § 11111(a) (2000). According to Plaintiff, Defendants are not entitled to immunity because the three-member review panel established by the Consent Agreement is not a professional review body as defined by the HCQIA. 42 U.S.C. § 11151(11) (2000). However, the plain language of the Act defines a "professional review body" as "any committee of a health care entity which conducts professional review activity." Id. Under the HCQIA, professional review activity "means investigative process during/or upon which professional review action, i.e., decision, is made." Fobbs v. Holy Cross Health System Corp., 789 F.Supp. 1054 (E.D. Cal. 1992), F.3d 1439, cert. denied 513 U.S. 1127 (1995).

The panel's decision to terminate Dr. Feller's privileges with Miriam was a "professional review action" by a "professional review body" within the meaning of the HCQIA. First, the Consent Agreement between the Miriam Hospital Staff Association and the Plaintiff established that a panel of three members—Dr. Kathleen Hittner, Dr. Boyd King, and Dr. James Myers ("panel or review panel")— would review any further complaints made against the Plaintiff. Additionally, the panel...

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