Fontanetta v. Doe

• Decision Date: 30 March 2010
• Citation: 898 N.Y.S.2d 569,73 A.D.3d 78
• Parties: A. Philip FONTANETTA, etc., et al., respondents, v. John DOE 1, et al., defendants, Frank DiMaio, etc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

898 N.Y.S.2d 569

73 A.D.3d 78

A. Philip FONTANETTA, etc., et al., respondents,

v. John DOE 1, et al., defendants,Frank DiMaio, etc., et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

March 30, 2010.

APPEAL by the defendants Frank DiMaio, Glenn Teplitz, and Winthrop Orthopaedic Associates, P.C., as limited by their brief, in an action, inter alia, to recover damages for unfair competition, tortious interference with contract, tortious interference with business relations, and defamation, from so much of an order of the Supreme Court (Stephen A. Bucaria, J.), entered April 2, 2008, in Nassau County, as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1).

Rivkin Radler LLP, Uniondale, N.Y. (William M. Savino, Stephen J. Smirti, Jr., and Robert J. Aurigema of counsel), for appellants.

Ruskin Moscou Faltischek, P.C., Uniondale, N.Y. (Mark S. Mulholland and Matthew F. Didora of counsel), for respondents.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, ANITA R. FLORIO, and THOMAS A. DICKERSON, JJ.

FLORIO J.

This is a matter involving the termination of the hospital privileges of the plaintiff A. Philip Fontanetta (hereinafter the plaintiff),¹ AT NONPARTY WINthrop universIty hospiTal (hereInafter the hospital). The defendants Frank DiMaio (hereinafter Dr. DiMaio), Glenn Teplitz (hereianfter Dr. Teplitz), and Winthrop Orthopaedic Associates, P.C. (hereinafter collectively the defendants), claim that the plaintiff's privileges were terminated following a peer review process within the meaning of the United States Health Care Quality Improvement Act of 1986 ( 42 USC § 11101 et seq.) (hereinafter HCQIA), which immunizes health-care participants from civil liability for their actions in that process. The defendants assert that the substanceof this lawsuit is to recover damages from them for their actions in the course of that peer review process. They contend that the action should be dismissed because the "documentary evidence" they submitted in support of that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) shows that, as a matter of law, such a peer review process took place.

Inasmuch as we find that the defendants' submissions, with the possibility of one inconsequential exception, do not qualify as "documentary evidence" within the intendment of CPLR 3211(a)(1), we affirm the Supreme Court's determination denying that branch of the motion.

Background

The plaintiff is a board-certified orthopaedic surgeon who has practiced in and around Nassau County for more than 30 years. From 1980 to 2005, he had continuous and unrestricted admitting privileges at the Hospital.

Dr. DiMaio is Chairman of the Department of Orthopaedic Surgery at the Hospital (hereinafter the Department). Dr. Teplitz is a member of the Hospital's Department of Orthopaedic Surgery and served on the Department's Continuous Quality Improvement Committee (hereinafter the CQI Committee). Both individual defendants are shareholders of the defendant corporation, Winthrop Orthopaedic Associates, P.C.

Beginning in December 2004, after the plaintiff handled several cases with adverse results, the Hospital's Risk Management Department referred five of the plaintiff's cases to the CQI Committee. These cases were discussed during four CQI Committee meetings held on February 18, 2005, March 25, 2005, May 20, 2005, and June 17, 2005. The plaintiff attended only the May 20, 2005, meeting. Following each meeting, minutes which included a discussion of the plaintiff's cases and recommendations of the CQI Committee were generated and printed. The minutes were then individually submitted to Dr. DiMaio, as Chair of the Department, for review.

Upon completion of the CQI Committee process, Dr. DiMaio and the Hospital administration contended that they took various measures to bring the plaintiff into compliance with Hospital procedures, including: sending a letter to the plaintiff from Dr. DiMaio, dated April 15, 2005, regarding his alleged failure to abide by hospital protocol for site verification; sending a letter to the plaintiff from the Hospital dated June 17, 2005, informing him that his charts would be subject to random reviews for the following three months; and conducting meetings between the Hospital and Dr. DiMaio, which resulted in the implementation of a proposed proctorship whereby the plaintiff was required to be supervised by a credentialed spine surgeon for a minimum of 10 surgeries.

In August 2005, the plaintiff met twice with Dr. DiMaio and Hospital administration personnel, who gave him an opportunityto respond to these issues and to address the Hospital's concerns. At the second meeting, the plaintiff admitted that he was unwilling to comply with the Hospital's suggestions. It also appears that a suspension was discussed.

By letter dated August 26, 2005, the Hospital notified the plaintiff of its decision to suspend his admitting privileges. It also informed him of his right to request a hearing before an Ad Hoc Committee, which he did on September 1, 2005.

By Notice of Hearing dated October 3, 2005, the Hospital informed the plaintiff that its decision to summarily suspend him and its recommendation for nonrenewal of his privileges were based on: (a) the fivecases reviewed by the CQI Committee; (b) his deliberate refusal to follow Hospital protocol for site verification; (c) his inadequate compliance with conditions imposed requiring proctoring of spinal surgeries; and (d) his failure to properly document medical records. In addition, the Notice of Hearing also set forth the plaintiff's rights with regard to the hearing, including his right to: (a) be accompanied and/or represented by an attorney or another person of the plaintiff's choice; (b) call, examine, and cross-examine witnesses; (c) present evidence determined to be relevant by the hearing panel, regardless of its admissibility in a court of law; (d) challenge any witnesses, and rebut any evidence; and (e) submit a written statement at the close of the hearing.

The Ad Hoc Committee consisted of five physicians and met a total of seven times from May 23, 2006, through February 21, 2007.

Although not unanimous in its decision, in a letter dated May 14, 2007, the Ad Hoc Committee recommended that the plaintiff's privileges be reinstated. Two additional levels of review followed, first, one by the Executive Committee of the Medical Staff (hereinafter the Executive Committee) and then, a second by the Appellate Review Committee (a committee appointed by the Hospital's Board of Directors). Both the plaintiff and the Hospital submitted briefs in support of their positions and, at the Appellate Review Committee level, they both presented oral arguments.

The Executive Committee upheld the Hospital's original suspension of the plaintiff and its refusal to renew the plaintiff's privileges, rejected the Ad Hoc Committee's recommendation, and instead recommended that "his non-reappointment stand." That determination of the Executive Committee was later upheld by the Hospital's Appellate Review Committee. In a meetingon September 11, 2007, the Hospital's Board of Directors adopted the recommendation to terminate the plaintiff's privileges.

This Action

The complaint asserts six causes of action. The first, sounding in common-law unfair competition, alleged that the defendants abused their full-time privileges at the Hospital by hoarding Hospital resources and filing false reports in order to malign and defame the plaintiff. The second cause of action alleged tortious interference with contract and asserted that the plaintiff's admitting privileges constituted a contract between the plaintiff and the Hospital, and that the plaintiff's contractual privileges were wrongfully suspended due to the defendants' illegal acts, false and defamatory reports, and wanton abuse of authority, position, and power. The third cause of action alleged tortious interference with a business advantage, averring that the defendants knowingly and intentionally interfered with the business relationship between the plaintiff and the Hospital. The fourth and fifth causes of action were to impose a constructive trust and to recover damages for unjust enrichment, respectively. The plaintiff claimed that the defendants had a fiduciary relationship with the Hospital and the plaintiff based on a "position of trust" held by the defendants at the Hospital, and that the defendants abused this fiduciary relationship. The sixth cause of action to recover damages for defamation alleged that the defendants caused false statements about the plaintiff to be published in the National Practitioner Data Bank.

It appears that all six causes of action encompass more than claims that are based solely on the peer review process. Those allegations, broadly construed in favor of the plaintiff, as they should be on amotion to dismiss, appear to allege a malevolent conspiracy as well as actions outside of the peer review process directed at the plaintiff.

On November 30, 2007, the defendants moved, inter alia, to dismiss the complaint pursuant to CPLR 3211(a)(1) based on "documentary evidence." They argued, among other things, that the plaintiff's privileges were terminated after he "engaged in a dangerous trend of substandard patient care," and that they were immunized from liability by the HCQIA and New York State Public Health Law § 2805-m(3) because the Hospital's decision to terminate the plaintiff's privileges "was reasonable and in furtherance of quality health care." In supportof their motion, the defendants submitted the following items, asserting that they constituted "documentary evidence" within the intendment of CPLR 3211(a)(1): a completely redacted Quality Improvement Morbidity Report (written conclusions of the CQI Committee reviews); a memorandum from Monica Santoro of the Hospital's Risk Management Department to Barbara Kohart-Kleine,...