Garrison v. Herbert J. Thomas Memorial Hosp. Ass'n

• Court: West Virginia Supreme Court
• Writing for the Court: McHUGH
• Citation: Garrison v. Herbert J. Thomas Memorial Hosp. Ass'n, 438 S.E.2d 6, 190 W.Va. 214 (W. Va. 1993)
• Decision Date: 23 November 1993
• Docket Number: No. 21359,21359
• Parties: Richard L. GARRISON, M.D., Plaintiff Below, Appellant, v. HERBERT J. THOMAS MEMORIAL HOSPITAL ASSOCIATION, a West Virginia Corporation, Defendant Below, Appellee.

Page 6

438 S.E.2d 6

190 W.Va. 214

Richard L. GARRISON, M.D., Plaintiff Below, Appellant, v. HERBERT J. THOMAS MEMORIAL HOSPITAL ASSOCIATION, a West Virginia Corporation, Defendant Below, Appellee.

No. 21359.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 22, 1993.

Decided Nov. 23, 1993.

Syllabus by the Court

1. Under W.Va.Code, 30-3C-2(a) [1980], individuals providing information to any review organization may not be shielded from civil liability when they provide information that is: (1) unrelated to the performance of the duties and functions of such review organization; and (2) false, and the person providing such information knew, or had reason to believe, that such information was false. Thus, individuals conducting health care peer review must act in good faith in order to be statutorily immunized from civil liability under W.Va.Code, 30-3C-2 [1980].

2. " 'The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Syl., Flowers v. City of Morgantown, W.Va. , 272 S.E.2d 663 (1980)." Syl. pt. 2, Sticklen v. Kittle, 168 W.Va. 147, 287 S.E.2d 148 (1981).

3. The public policy in favor of full disclosure encourages individuals to provide "good-faith health care peer review." Mahmoodian v. United Hospital Center, Inc., 185 W.Va. 59, 65, 404 S.E.2d 750, 756, cert. denied, 502 U.S. 863, 112 S.Ct. 185, 116 L.Ed.2d 146 (1991). Thus, an agreement wherein a hospital agrees not to fully disclose truthful and pertinent information about a physician to a peer review organization would violate the public policy in favor of full disclosure. Conversely, an agreement by a hospital not to disclose information about a physician which is known to be false would not violate the public policy in favor of full disclosure.

4. "To establish prima facie proof of tortious interference, a plaintiff must show: (1) existence of a contractual or business relationship or expectancy; (2) an intentional act of interference by a party outside that relationship or expectancy; (3) proof that the interference caused the harm sustained; and (4) damages. If a plaintiff makes a prima facie case, a defendant may prove justification or privilege, affirmative defenses. Defendants are not liable for interference that is negligent rather than intentional, or if they show defenses of legitimate competition between plaintiff and themselves, their financial interest in the induced party's business, their responsibility for another's welfare, their intention to influence another's business policies in which they have an interest, their giving of honest, truthful requested advice, or other factors that show the interference was proper." Syl. pt. 2, Torbett v. Wheeling Dollar Savings & Trust Co., 173 W.Va. 210, 314 S.E.2d 166 (1983).

5. "The essential elements for a successful defamation action by a private individual are (1) defamatory statements; (2) a nonprivileged communication to a third party; (3) falsity; (4) reference to the plaintiff; (5) at least negligence on the part of the publisher; and (6) resulting injury." Syl. pt. 1, Crump v. Beckley Newspapers, Inc., 173 W.Va. 699, 320 S.E.2d 70 (1983).

6. An individual's right to conduct a business or pursue an occupation is a property right. The type of injury alleged in an action for tortious interference with business relationship is damage to one's business or occupation. Therefore, the two-year statute of limitations governing actions for damage to property, set forth under W.Va.Code, 55-2-12 [1959], applies to an action for tortious interference with business relationship.

Chauncey H. Browning, Charleston, for appellant.

Thomas J. Hurney, Jr., Anthony J. Majestro, Jackson & Kelly, Charleston, for appellee.

McHUGH, Justice:

Richard L. Garrison, M.D. appeals the final order of the Circuit Court of Kanawha County which dismissed with prejudice his complaint against Herbert J. Thomas Memorial Hospital Association (hereinafter "Thomas Hospital"). Upon review of this case, we reverse.

I

Dr. Garrison graduated from the West Virginia University School of Medicine in 1979, and fulfilled his internship and residency requirements at Charleston Area Medical Center and Thomas Hospital. In September of 1982, Dr. Garrison was granted temporary hospital privileges in family practice, pediatrics and obstetrics at Thomas Hospital. He was subsequently granted annual staff privileges for 1983, and his applications for reappointment to Thomas Hospital's associate medical staff were approved for 1984 and 1985.

In August of 1985, Thomas Hospital's medical executive committee requested that the OB-Perinatal-Mortality Committee review Dr. Garrison's obstetrical cases, retrospectively and for a period of one year. The purpose of the review was to consider Dr. Garrison's management of his cases.

The OB-Perinatal-Mortality Committee held a special meeting on September 9, 1985, to disclose the findings of its review. At the meeting, which Dr. Garrison attended, the OB-Perinatal-Mortality Committee recommended to the medical executive committee that Dr. Garrison's obstetrical privileges be suspended. According to the record of the special meeting, the committee believed that Dr. Garrison "does not recognize when he has a high risk patient and is unable to realize when he needs to obtain a formal consultation." The committee's recommendation was summarized on the medical staff committee report as follows:

The OB-Perinatal-Mortality Committee recommends to the Medical Executive Committee that [Dr. Garrison's] obstetrical privileges be suspended at this time; he needs further training in obstetrics; when he has documentation of further training in an approved obstetrical program and documentation of adequate knowledge of the proper standards of care in obstetrics, his privileges be reevaluated at that time.

The medical executive committee then instructed the director of the medical staff, Dr. Rodney Dean, to request that the credentials committee investigate Dr. Garrison's management of those obstetrical cases for which he was summarily suspended. The medical executive committee also directed Dr. Dean to notify Dr. Garrison of the suspension of his obstetrical privileges pending the investigation by the credentials committee. Dr. Garrison was apparently notified of his suspension on September 17, 1985.

Following its investigation, the credentials committee did not concur with the recommendation of the OB-Perinatal-Mortality Committee. The medical executive committee, however, rejected the findings of the credentials committee, and instead recommended that Dr. Garrison's obstetrical privileges be removed. Dr. Garrison was notified in writing by James W. Hubbell, President and Chief Executive Officer of Thomas Hospital, of the medical executive committee's action.

Upon receiving notification of the executive committee's action, Dr. Garrison appealed the committee's decision and requested that a hearing be held. Thereafter, Mr. Hubbell advised Dr. Garrison in writing that his suspension was based upon the medical executive committee's opinion that his practice in the field of obstetrics did not meet the standard of care required of physicians in this area of medicine. He further informed Dr. Garrison that a hearing would be held on November 13, 1985.

A preliminary hearing on Dr. Garrison's appeal was held on November 20, 1985. Dr. Garrison and Thomas Hospital agreed at the preliminary hearing that the evidentiary hearings would begin on December 16, 1985.

In November of 1985, Thomas Hospital requested that John W. Traubert, M.D., professor and chairman of family practice at West Virginia University, "conduct an independent review of the quality of obstetrical care rendered by Dr. Garrison[.]" Dr. Traubert, in a report dated August 15, 1988, ¹ found that Dr. Garrison's "care was above reproach in all respects."

Dr. Garrison asserts that on December 4, 1985, he met with Mr. Hubbell to discuss the upcoming evidentiary hearings and the lawsuit he was considering initiating against Thomas Hospital as a result of his suspension. Dr. Garrison contends that Mr. Hubbell agreed that if Dr. Garrison would not initiate legal proceedings against the hospital, then Thomas Hospital would: (1) reinstate his obstetrical privileges; (2) expunge the record of his suspension; and (3) not report the suspension to either the West Virginia Medical Licensing Board or any other source inquiring about the suspension. Dr. Garrison represents that, based upon this agreement, he resigned from the medical staff of Thomas Hospital on December 13, 1985.

A few years later, Dr. Garrison applied for appointment to the medical staff at Memorial Hospital in Cheyenne, Wyoming. In response to a question on the application as to whether he had ever been suspended, Dr. Garrison answered "no." Garrison v. Board of Trustees of Memorial Hospital, 795 P.2d 190, 191 (Wyo.1990). As part of its consideration of Dr. Garrison's application, Memorial Hospital requested information from Thomas Hospital concerning Dr. Garrison. In a letter dated July 27, 1988, George W. Hogshead, M.D., medical director of Thomas Hospital, advised the president of the medical staff at Memorial Hospital that

[c]oncerns over his obstetrical practice promoted a summary suspension of his obstetrical privileges effective on September 16, 1985. Doctor Garrison then requested that his obstetrical privileges be deleted from his clinical privileges. In view of this request, Doctor Garrison was notified by letter dated December 6, 1985, that the summary suspension had been lifted.

By letter dated August 23, 1988, the executive committee and the credentials committee of Memorial Hospital advised Dr. Garrison that it was recommending to the trustees that his application be...