Ginzburg v. Memorial Healthcare Systems, Inc.
| Decision Date | 24 December 1997 |
| Docket Number | Civil Action No. H-96-0907. |
| Citation | 993 F.Supp. 998 |
| Parties | Eugenia I. GINZBURG, M.D., et al. v. MEMORIAL HEALTHCARE SYSTEMS, INC., et al. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court is Defendants' motion for Summary Judgment (Instrument No. 89). Having reviewed the submissions of the parties and the applicable law, this Court determines that Defendants' motion should be GRANTED.
Plaintiff Dr. Eugenia Ginzburg ("Ginzburg") is a physician specializing in the practice of perinatal-neonatal medicine. Perinatal-neonatal medicine is a subspecialty of pediatrics which involves the treatment of infants in their first two to three months of life. Such treatment includes newborn surgery, the management of the infant's lung and heart conditions, the early detection or prevention of neurological and biochemical diseases and the diagnosis of congenital anomalies. Hospital care of newborns is allocated among three different levels of nurseries, Level I, Level II, and Level III. Defendant Memorial Hospital Southwest's ("Memorial") nurseries are equipped to provide care at each of these three levels.
Level I care consists of the "surveillance and care of all patients admitted to the obstetric service with an established triage system for identifying high-risk patients who should be transferred to a facility that provides level II or level III care" and the "evaluation of the condition of healthy neonates and continuing care of these neonates until their discharge." (Plaintiffs' Response to Defendants' Motion for Summary Judgment, Instrument No. 109, Ex. 7 at 4). Level II care entails the "management of high-risk mothers and fetuses" and the "management of small, sick neonates with a moderate degree of illness." Id. at 4. In addition, "level II care pertains to the neonatal expertise required to manage otherwise normal newborns weighing between 1,500-2,500 grams." Id. Seventeen hospitals in the greater Harris County area have level II nurseries.
Level III care involves the "provision of comprehensive perinatal care services for mothers and neonates of all risk categories." Id. at 4-5. Newborns weighing less than 1,500g or under 32 weeks of gestation and fetuses requiring immediate, sophisticated care are placed in Level III nurseries. Id. The neonatologist is usually requested to treat the Level II and Level III babies, as pediatricians, who are generally qualified to care for Level I patients, lack the requisite degree of training to provide proper medical attention for infants requiring more specialized treatment. (Plaintiffs' Response to Defendants' Motion for Summary Judgment, Instrument No. 109, Ex. 1, Ginzburg Aff. at 8). Moreover, Level III nurseries must have certain equipment and a nursing staff qualified to assist the neonatologist in providing the round-the-clock monitoring often necessary in treating such high risk infants. There are ten hospitals in Harris County with Level III nurseries. Ginzburg claims that seventy-five percent of her income in the last ten years can be attributed to her care of Level III infants.
In 1987, Ginzburg was both appointed to Memorial's medical staff and awarded staff privileges to treat patients in the Hospital's Pediatric Section. The award of such privileges at Memorial, however, merely allows a physician to practice medicine at the Hospital; it does not entitle that physician to compensation from the Hospital or a guarantee of patient referrals. (Appendix to Defendants' Motion for Summary Judgment, Instrument No. 91, Exhibit W, Eastham Aff. at 2). Neither is a physician appointed to Memorial's medical staff considered a Hospital employee. Id. Currently, Ginzburg has similar privileges at ten other Harris County hospitals.
A physician is appointed to the medical staff at Memorial for a term of only two years. At the expiration of such term, the physician is required to apply both for reappointment to the medical staff and for the renewal of clinical privileges. (Appendix to Defendants' Motion for Summary Judgment, Instrument No. 91, Exhibit W, Eastham Aff. at 2). In accordance with the hospital's by-laws, Memorial's Board of Trustees ("Board") ultimately decides whether to grant or deny a physician's application for reappointment. Id. Although without final authority over staff selections, the medical staff is, however, responsible for making recommendations to the Board regarding each candidate for reappointment and the delineation of that candidate's clinical privileges. (Appendix to Defendants' Motion for Summary Judgment, Instrument No. 90, Exhibit C, subexhibit 2 at 4-5). The medical staff is also responsible for performing "peer review, quality improvement, and utilization review for the Medical staff and Hospital." Id.
In 1993, Defendant Dr. Maurice Leibman ("Leibman"), Chief of the Medical Staff, received reports from the Nursing Administration regarding behavior engaged in by Ginzburg, which the Administration believed to constitute verbal abuse and harassment of the nursing staff. (Appendix to Defendants' Motion for Summary Judgment, Instrument No. 91, Exhibit W, subexhibit 1 at 139). Also at this time, Leibman was provided incident reports or complaints regarding Ginzburg's patient care. Id.; (Appendix to Defendants' Motion for Summary Judgment, Instrument No. 91, Exhibit W, subexhibit 22). In response to these reports, Leibman requested that the Pediatric Section conduct a review of Ginzburg's charts and more thoroughly investigate the patient care issues, if any, raised by such a review. (Appendix to Defendants' Motion for Summary Judgment, Instrument No. 90, Exhibit F, Leibman Aff. at 2). In addition, Leibman met with Ginzburg regarding the Nursing Administration's allegations, warning her that if such behavior existed and if it continued it would be grounds for disciplinary or corrective action under Memorial's Bylaws. (Appendix to Defendants' Motion for Summary Judgment, Instrument No. 91, Exhibit W, subexhibit 1 at 139).
Disciplinary action is defined under the bylaws as "action such as reprimands or probation without supervision which do not presently and substantively affect the member's privileges." (Appendix to Defendants' Motion for Summary Judgment, Instrument No. 90, Exhibit C, subexhibit 2 at 42). Corrective action includes Id. The bylaws further provide that "when a corrective action is taken against a member of the medical staff, that member is entitled to the procedural rights of review provided for in the Procedural Review plan," which entitles a practitioner to a hearing following an adverse action or recommendation. Id. On the other hand, "when discipline is taken against a medical staff member, that member is not automatically entitled to the procedural rights of review." Id.
On July 22, 1994, Defendant Dr. John Zerwas, who succeeded Leibman as Chief of Staff, placed Ginzburg on probation, without supervision, for a period of twelve months due to her continued disruptive conduct in the nurseries. (Appendix to Defendants' Motion for Summary Judgment, Instrument No. 90, Exhibit O, Zerwas Aff. at 2). Again Ginzburg was warned that disruptive conduct which in reasonable likelihood would adversely affect patient care or interfere with the proper operation of the Hospital was, according to Hospital bylaws, grounds for more serious corrective action. (Appendix to Defendants' Motion for Summary Judgment, Instrument No. 91, Exhibit W, subexhibit 1 at 139). Ginzburg was also offered an opportunity to participate in teamwork counseling sessions with the nursing staff in effort to improve the working relationships in the nurseries. (Appendix to Defendants' Motion for Summary Judgment, Instrument No. 91, Exhibit W, subexhibit 1 at 139). Ginzburg, however, declined to participate in any such counseling sessions. Id. Finally, three new nursery operating policies were enacted in attempt to clarify the obligations of the staff, including the physicians, and outlined a uniform method for handling disputes as they arise. Id.
In July of 1995, after Ginzburg's probationary period ended, Memorial's administration continued to receive reports that Ginzburg was neither complying with Hospital policy nor attempting to improve her allegedly disruptive behavior. Id. at 140-41. By November of 1995, six nurses in the Pediatric Section had either requested to be transferred out of the nursery in which Ginzburg worked or had terminated their employment with Memorial, citing their inability to work with Ginzburg as the reason for their request for change in staff status or their resignation. Id. at 142. In addition, Defendant Phillip Tucker ("Tucker"), a social worker employed by Memorial and assigned to the Maternal and Child Health Department, reported that he was verbally harassed by Ginzburg when he informed Ginzburg of a family's desire to transfer the care of their baby to another physician. Id. at 354. On November 22, 1995, Defendant James Eastham, Memorial's Vice President and Chief Executive Officer, notified Ginzburg in writing of the problems created by her disruptive behavior, warning her that "in the event of any further instance of disruptive conduct ... [her] medical staff privileges [would be] subject to emergency suspension." Id. at 355.
During this same year, Ginzburg was required, pursuant to the bylaws, to file a request for reappointment to the medical staff. Ginzburg's application was forwarded, in accordance with Hospital procedure, to Memorial's CEO, Eastham, who in turn, submitted the application to the Credentials Committee. Under the bylaws, the Credentials...
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