Feyz v. MERCY MEM. HOSP.

• Decision Date: 16 February 2005
• Docket Number: Docket No. 246259.
• Citation: 692 N.W.2d 416,264 Mich. App. 699
• Parties: Bruce B. FEYZ, Plaintiff-Appellant/Cross-Appellee, v. MERCY MEMORIAL HOSPITAL, Richard Hiltz, James Miller, D.O., John Kalenkiewicz, M.D., J. Marshall Newbern, D.O., and Anthony Songco, M.D., Defendants-Appellees/Cross-Appellants, and Medical Staff of Mercy Memorial Hospital, Defendant.
• Court: Court of Appeal of Michigan — District of US

692 N.W.2d 416

264 Mich. App. 699

Bruce B. FEYZ, Plaintiff-Appellant/Cross-Appellee, v. MERCY MEMORIAL HOSPITAL, Richard Hiltz, James Miller, D.O., John Kalenkiewicz, M.D., J. Marshall Newbern, D.O., and Anthony Songco, M.D., Defendants-Appellees/Cross-Appellants, and Medical Staff of Mercy Memorial Hospital, Defendant.

Docket No. 246259.

Court of Appeals of Michigan.

Submitted December 14, 2004, at Detroit.

Decided January 13, 2005, at 9:00 a.m.

Released for Publication February 16, 2005.

Jeffrey L. Herroni, Ann Arbor, for the plaintiff.

Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman and Karen B. Berkery), Detroit, for the defendants.

Before: MURRAY, P.J., and SAWYER and SMOLENSKI, JJ.

SAWYER, J.

We are asked in this case to determine whether the doctrine that staffing decisions of private hospitals are not subject to judicial review precludes all such review, including claims brought under statutes such as the Civil Rights Act. We hold that the doctrine does not preclude such claims and reverse in part the trial court's grant of summary disposition dismissing all the plaintiff's various claims against defendant.

Plaintiff is a physician with staff privileges at defendant hospital. The individual defendants hold various administrative posts as the hospital. This action has its roots in a dispute between plaintiff and the hospital administration regarding various standing orders that plaintiff wrote with respect to his patients. Specifically, plaintiff directed the nursing staff, as part of the admissions process, to inquire of patients which medications they were taking at home and how they were taking those medications. Plaintiff explains that, in his experience, patients often do not take medications according to the instructions of the prescribing physician. He indicated that he believed he needed to know how the medications were actually being used by the patients, not merely how the patients were supposed to be taking the medications.

The hospital administration reacted unfavorably to these standing orders. In fact, the nursing staff was directed to ignore the instructions. It was suggested to plaintiff that he raise the issue administratively, apparently with the end purpose of a uniform policy being adopted if merit was found in plaintiff's request. Although plaintiff pursued this route, it did not result in the adoption of a policy incorporating plaintiff's standing orders. The dispute was renewed. Ultimately, plaintiff was placed on indefinite probation, as well as a referral being made for a psychological examination of plaintiff (which plaintiff reports did not result in the diagnosis of a mental illness). Plaintiff thereafter instituted this action, filing multiple claims against defendants.

The trial court granted summary disposition for the defendants, citing the doctrine of judicial nonreviewability of the staffing decisions of private hospitals, as well as statutory immunity arising from the referral of a physician for medical evaluation. Specifically, the trial court opined as follows:

Each of Plaintiff's claims arise out of activity involving a peer/professional review committee. Defendant asserts MCL 331.531 as a basis for immunity from liability. MCL 331.531 grants immunity to hospitals such as Defendant, which act within their scope as a review entity, as did the Defendants in this case.

Plaintiff is correct that the immunity granted under the statute is "qualified" immunity, that is, immunity only where no malice has occurred, not "complete" immunity as asserted by the Defendants. However, no clear and convincing proof of malice can be found in Plaintiff's brief. Furthermore, according to both Regualos v. Community Hos., 364 N.W.2d 723, 726 [140 Mich.App. 455 (1985)], and Hoffman v. Garden City Hospital — Osteopathic, 321 N.W.2d 810 [115 Mich.App. 773 (1982)], decisions of governing bodies of private hospitals cannot be subjected to judicial review. Therefore, Summary Disposition should be granted pursuant to MCR 2.116(C)(8) upon the basis of the "Michigan Peer Review Statute" (MCL 331.531).

It is clear that all causes of action in this case arise from the activity of the Defendants' peer review board and thereby subjected to the said Peer Review Statute. Therefore, all other issues regarding Summary Disposition of this case need not be addressed.

Because the trial court placed the greater emphasis on the peer review statute, we shall begin our analysis there. MCL 331.531 provides in pertinent part as follows:

(1) A person, organization, or entity may provide to a review entity information or data relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health care provider.

(2) As used in this section, "review entity" means 1 of the following:

(a) A duly appointed peer review committee of 1 of the following:

* * *

(iii) A health facility or agency licensed under article 17 of the public health code, 1978 PA 368, MCL 333.20101 to 333.22260.

* * *

(3) A person, organization, or entity is not civilly or criminally liable:

(a) For providing information or data pursuant to subsection (1).

(b) For an act or communication within its scope as a review entity.

(c) For releasing or publishing a record of the proceedings, or of the reports, findings, or conclusions of a review entity, subject to sections 2 and 3.

(4) The immunity from liability provided under subsection (3) does not apply to a person, organization, or entity that acts with malice.

We turn first to plaintiff's allegations regarding violations of various civil rights acts. Plaintiff's complaint included counts alleging violations of the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq., the Americans With Disabilities Act, 42 USC 12101 et seq., the federal civil rights act, specifically 42 USC 1983 and 1985, and the Vocational Rehabilitation Act, specifically 29 USC 794. Even if the trial court is correct that all of plaintiff's claims arise out of the actions of a peer review committee, the peer review statute does not grant immunity for those actions that violate a civil rights act.

We base this determination on two reasons. First, the peer review statute only grants immunity for "an act or communication within [the peer review committee's] scope as a review entity." MCL 331.531(3)(b). It is not within the scope of a peer review committee to violate someone's civil rights. There is no indication in the various civil rights acts at issue here that peer review committees were excluded from the scope of those acts, nor is there any indication that the peer review statute intended to exclude peer review committees from compliance with the various civil rights acts. Indeed, the fact that immunity under the peer review statute is not absolute is reflected by the fact that § 4 denies immunity to a person, organization, or entity that acts with malice.

Which brings us to the second reason, namely, that we view a violation of a civil rights act as being a malicious act. The following portion of the definition of "malice" from Black's Law Dictionary (5th ed) is particularly apt in this situation: "Malice in law is not necessarily personal hate or ill will, but it is that state of mind which is reckless of law and of the legal rights of the citizen." The various civil rights acts adopted by the state Legislature and the United States Congress establish the legal rights of the citizens, including plaintiff. If defendants acted in disregard of those rights, doing so represents a malicious act and, therefore, is outside the scope of immunity granted by the peer review statute.

We pause here to address an obvious flaw that permeates defendants' brief on appeal and, to a lesser extent, the trial court's opinion. That flaw is the argument raised that plaintiff is unable to factually support his claims. This is demonstrated by the following passage from defendants' brief on appeal discussing the malice issue: "After reviewing the facts and record before it, the trial court then concluded that `no clear and convincing proof of malice can be found in Plaintiff's brief.'" (Emphasis supplied by defendants.) But summary disposition was granted under MCR 2.116(C)(8) (failure to state a claim), not C(10) (no genuine issue of material fact). Furthermore, the trial court's analysis was even more narrow in that it did not even determine if plaintiff had adequately pleaded violations of the various civil rights acts. Rather, the trial court limited its decision to whether plaintiff had adequately pleaded in avoidance of the immunity granted by the peer review statute and in avoidance of the doctrine of judicial nonreviewability of staffing decisions by private hospitals. Therefore, the question whether plaintiff can factually support his claims of civil rights violations is not before us, nor, for that matter, is the question whether plaintiff even adequately plead those causes of action.

The only question before us in this appeal, with respect to the counts of the complaint that allege the statutory civil rights violations, is whether a claim of such a violation falls outside the scope of immunity granted by MCL 331.531. For the reasons stated above, we conclude that it does. Accordingly, the trial court erred in granting summary disposition under MCR 2.116(C)(8) with respect to counts I through IV of plaintiff's complaint on the basis of the immunity granted by MCL 331.531.

Additionally, plaintiff's complaint contains allegations of invasion of privacy (count V), breach of fiduciary and public duties (count VI), and breach of contract (count VII). The invasion of privacy count is based on plaintiff's allegations that the hospital's Executive Committee, acting on recommendations by the ad hoc investigating committee, referred plaintiff to the state's Health...