Freilich v. Upper Chesapeake Health Sys., Inc.

• Decision Date: 19 December 2011
• Docket Number: 2011.,No. 4,Sept. Term,4
• Citation: 33 A.3d 932,33 IER Cases 910,423 Md. 690
• Parties: Linda FREILICH, et al. v. UPPER CHESAPEAKE HEALTH SYSTEMS, INC., et al.
• Court: Maryland Court of Appeals

33 A.3d 932

33 IER Cases 910

423 Md. 690

Linda FREILICH, et al.

v.UPPER CHESAPEAKE HEALTH SYSTEMS, INC., et al.

No. 4

Sept. Term

2011.

Court of Appeals of Maryland.

Dec. 19, 2011.

Paul S. Blumenthal (Law Office of Paul S. Blumenthal, P.A., Annapolis, MD), on brief, for Petitioners.

Jonathan B. Sprague (Kathleen M. Chancler of Post & Schell, P.C., Philadelphia, PA; Craig B. Merkle and K. Nicole Nesbitt of Goodell, Devries, Leech & Dann, LLP, Baltimore, MD), on brief, for Respondents.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ^* MURPHY, ADKINS and BARBERA, JJ.

ADKINS, J.

In this case we must determine the relevance of, and how to prove, a hospital's alleged retaliatory animus in refusing to renew a physician's privileges on the defendants' motion for summary judgment based on the Health Care Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C. §§ 11101–11152 (1994). After Harford Memorial Hospital (“Harford”) declined to renew the privileges of Dr. Linda Freilich,¹ she sued for damages. Harford claimed immunity under HCQIA.² The Circuit Court for Harford County granted summary judgment to Harford, and the Court of Special Appeals affirmed. We granted certiorari, Freilich v. Upper Chesapeake Health Sys., Inc., 418 Md. 586, 16 A.3d 977 (2011), to answer the following question as phrased in the petition:

In the context of a summary judgment proceeding is the presumption of HCQIA immunity rebutted upon the showing of material facts in dispute regarding the physician's reporting of substandard medical care and attempts to improve the quality of care in the hospital system?

We shall affirm the Court of Special Appeals. Although we hold that evidence of retaliatory motive on the part of a disciplinary body is relevant when offered to rebut the presumption of HCQIA immunity, special standards must be met in order for such evidence to defeat summary judgment. Evidence of retaliation will not prevent summary judgment on HCQIA immunity unless it can permit a rational trier of fact to conclude that (1) the defendant failed to comply with the standards for immunity set forth in 42 U.S.C. § 11112(a) or (2) the action was not a “professional review action” under 42 U.S.C. § 11151(9). We explain this below as we discuss these sections of HCQIA.

FACTS AND LEGAL PROCEEDINGS

Between 1982 and 1997, Petitioner Dr. Freilich practiced medicine at two hospitals in Harford County: Harford Memorial Hospital (“Harford”) and Fallston General Hospital (“Fallston”). The hospitals were operated by Upper Chesapeake Health System (“Upper Chesapeake”), a nonprofit corporation. ³ She specialized in internal medicine and nephrology.

During her time at the hospitals, Dr. Freilich was the subject of numerous complaints. Although some of the complaints addressed her competence as a physician, most of them alleged unprofessional behavior and violations of ethics rules. At least 35 complaints were filed against Dr. Freilich by doctors and members of the hospital staff, and at least 33 complaints were filed by patients.

Dr. Freilich argues generally that the complaints against her were made in retaliation for her legitimate reporting of substandard medical care and efforts to improve the hospitals. But she offers no evidence of retaliatory motive “in detail and with precision,” as required to fend off summary judgment,⁴ with regard to any of the following complaints alleged about her:

• Dr. Freilich “told [a] patient he was just fat and go on a diet.”

• She told a nurse, “We don't want you here. Get out. I can make life miserable for you.”

• Dr. Freilich told a hospital employee, “Every time I am written up, I will write you up ten times.”

• When a nurse wanted to give pain medication to an alcoholic with pancreatitis, Dr. Freilich allegedly said, “I want him to be miserable. He did this to himself.”

• She told a patient who smokes, “I hate people who smoke.”

• She told a patient, “You are a three-time loser and you will be back.”

• She publicly humiliated a patient and then told another patient who had observed the incident that “she could avoid that embarrassment if the patient would stop coming to the emergency room in a drunken stupor.”

• She was uncooperative with patients' requests for transfer.

• She was “uncooperative numerous times in notifying families of patient deaths.”

• In 1997, patients were surveyed about their satisfaction with their attending emergency room doctor. No other physician had more than one person choose “dissatisfied” or “somewhat dissatisfied,” but Dr. Freilich had nine people (out of 22) choose that option.

• Thirty-three patients independently complained to the hospital about Dr. Freilich.

• After losing privileges at Fallston, she told a patient at Harford, in a semi-public room, “It's a good thing you are in here because too many people go out of Fallston in boxes.” The patient was “horrified.”

• She told a patient's daughter “in essence that ICU physicians were trying to kill her mother and that she needed to get to the hospital immediately.” This was apparently because of a disagreement between Dr. Freilich and another doctor about how a certain patient should be treated. The daughter reported this incident to three different people at the hospital.

• Dr. Freilich “violated the privacy of a 17 year old admitted to the BHU” by releasing information regarding his admission and positive test results to his parents without first discussing it with the attending psychiatrist. (The MEC Subcommittee believed that she may not have been aware of a law regarding the privacy of emancipated minors and mental health records.)

• She failed to comply with MEC's recommendation that she seek counseling and follow a treatment plan (if needed) in 1996, resulting in revocation of her privileges in 1997.

• She refused to meet about the concerns and complaints against her.

• On the application for renewal of privileges at Harford, she made misrepresentations about her loss of privileges at Fallston. She incorrectly stated that there “were never any quality concerns” with her work, “no witnesses or corroboration of any unprofessional behavior” on her part and “in fact, the only witness, a patient of [hers], completely supported [her] testimony.” Her excuse for making the misstatement about the witnesses was that she “thought witness means something like the witnesses who sign in a will.”

• She documented that she had examined patients and put the documentation in their medical records, but patients denied that she had examined them.

• She gave “untruthful testimony” before the hearing committee. In particular:

• She prepared a binder full of “thousands” of signatures on a petition for her to keep her privileges. She represented to the hearing committee that the signatures were of her patients when, in fact, she had found people who were not her patients and asked them to sign.

• Even though she had met numerous times with the committee at both hospitals to discuss her behavior, she testified under oath, “I was never told my behavior was inappropriate.”

• She later admitted to having been told that she had behavioral problems at other institutions where she worked, and when the examiner asked her where exactly, she responded, “I really wasn't thinking of any other institutions.” When pressed about her previous statement, she said, “I didn't say that.”

There were fewer instances, according to evidence from Dr. Freilich, in which complaints were made by persons with a retaliatory motive:

• Dr. Freilich refused to allow a patient to die because she believed he was no longer terminal, and she followed the statutory procedure for transfer to another doctor. The result, she says, was that she was written up for “not being cooperative.”

• Dr. Freilich complained that the Social Service Department was inefficient and was not performing its job properly. The retaliation, she says, was a complaint filed against her regarding her interaction with a family on the telephone.

• A patient who was abusing diuretics and laxatives, which Dr. Freilich said can be consistent with suicidal intentions, was admitted 30 times to Harford without being referred to a psychiatrist. Dr. Freilich discovered this oversight and immediately transferred her to Fallston for a psychiatric evaluation. The ER personnel were not prepared to receive the patient, and the MEC accused Dr. Freilich of having abandoned the patient.

• She complained to Pam Aitken, Program Administrator of the Transitional Care Unit (“TCU”) at Harford,⁵ regarding a patient with skin problems. According to Dr. Freilich, Aitken wrote a retaliatory letter to the Medical Director of the TCU, Dr. Suresh Dhanjani, setting forth four complaints against Dr. Freilich:

• (1) She failed to provide proper treatment to a patient with a necrotic ulcer because she didn't know it was necrotic, even though there was documentation in the patient's record showing that she was indeed aware of the condition.

• (2) She told the wife of another doctor's patient that “her husband was dying,” that the Transitional Care Unit was an inappropriate place for him, and that he needed to be placed in long-term care. She said the same thing to other staff members in the nurse's station, a “very public place ... accessible by family, patients and other staff, resulting in a violation of confidentiality.” This incident led to a “long conversation with the patient's wife to ‘calm her down,’ and, indeed it appears that arrangements were already in the works to have the patient go home with appropriate home care.”

• (3) She performed a consult on a patient before the order for a consult was obtained from the attending physician.

• (4) She spoke about patients while in open areas in which staff and patients could hear, including saying that a certain patient was not an appropriate admission to the rehabilitation unit and would not get better or benefit from being there.

• An ongoing conflict existed...