Harris v. Bradley Mem'l Hosp. And Health Ctr. Inc

• Decision Date: 18 May 2010
• Docket Number: No. 18068.,18068.
• Citation: 296 Conn. 315,994 A.2d 153
• Court: Connecticut Supreme Court
• Parties: Stephen HARRISv.BRADLEY MEMORIAL HOSPITAL AND HEALTH CENTER, INC.

296 Conn. 315

994 A.2d 153

Stephen HARRISv.BRADLEY MEMORIAL HOSPITAL AND HEALTH CENTER, INC.

No. 18068.

Supreme Court of Connecticut.

Argued Oct. 27, 2009.

Decided May 18, 2010.

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Jo Anne Burgh, for the appellant (plaintiff).

Michael G. Rigg, with whom, on the brief, was Roland F. Young III, Hartford, for the appellee (defendant).

KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.

McLACHLAN, J.

This appeal arises from the summary suspension of the medical privileges of the plaintiff, Stephen Harris, a physician, by the defendant, Bradley Memorial Hospital and Health Center, Inc. The plaintiff appeals from the judgment of the trial court in favor of the defendant, rendered following the court's grant of the defendant's motion for judgment notwithstanding the verdict and for remittitur, following a jury verdict in favor of the plaintiff. ¹ The plaintiff claims that the trial court improperly: (1) concluded that the favorable termination doctrine applies in the context of an action brought by a physician seeking damages in connection with a hospital's suspension or termination of that physician's privileges; (2) reached the merits of the defendant's motion for remittitur despite the fact that it had rendered judgment in favor of the defendant on the basis of the favorable termination doctrine; (3) granted the defendant's motion for remittitur; (4) declined to award the plaintiff punitive damages; and (5) granted the defendant's motion for a directed verdict as to the plaintiff's claim pursuant to the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., concluding that the defendant's summary suspension of the plaintiff's privileges was not a commercial decision covered by CUTPA. The defendant claims that the judgment of the trial court may be affirmed on the basis of one or all of the following alternate grounds: (1) the trial court properly concluded that the defendant substantially had complied with its bylaws when it suspended the plaintiff's surgical privileges; (2) the plaintiff failed to rebut the statutory presumption that the defendant was immune from monetary liability under the federal Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq.; and (3) the plaintiff was collaterally estopped from bringing this action by virtue of a consent order into which he and the department of public health had entered. Because we agree with the plaintiff that the court improperly applied the favorable termination doctrine, and disagree with the defendant that the judgment of the trial court may be affirmed on the basis of the alternate grounds raised, we reverse the judgment of the trial court granting judgment notwithstanding the verdict. Additionally, we reverse the court's grant of judgment notwithstanding the verdict with respect to the jury's award of punitive damages to the plaintiff. We affirm the judgment of the trial court, however, granting the defendant's motion for directed verdict as to the plaintiff's CUTPA claim and granting the defendant's motion for remittitur.

The jury could have found the following relevant facts. The plaintiff, a general surgeon, was admitted to the defendant's medical staff and granted privileges in 1993. His privileges most recently had been renewed in 1999. Beginning in 1997, the plaintiff also held privileges at New Britain General Hospital. The plaintiff's practice was busy, averaging about twenty-five to forty cases a month and requiring him to be in the operating room three to four times a week. In addition to serving as the primary surgeon for his own cases, he assisted other general surgeons in the operating room, primarily Ambrose Alfonsi, the chairman of the defendant's surgery department, and Joshua Morowitz, the vice-chairman of the defendant's surgery department. The defendant's medical staff reappointment summary of 1999 reported that in the two years preceding the plaintiff's reappointment, he had 495 hospital admissions, 551 surgical procedures, 136 consultations, two suspensions for medical records violations, a mortality rate of two out of 495, an average length of stay of 6.6 days and a complication rate of zero.

In December, 1999, a patient on whom the plaintiff had performed a laparoscopic cholecystectomy returned twenty-four hours following the procedure with right upper quadrant pain and elevated liver enzymes. The patient was transferred to Hartford Hospital and treated for an injury she had sustained to her common duct during the laparoscopic procedure. The case was reviewed the following month during a morbidity and mortality meeting. ² Subsequent to that review, Alfonsi proposed a six month period of observation, during which Alfonsi would assist and observe the plaintiff in his laparoscopic surgery cases.³ The plaintiff agreed and in June, 2000, at the end of the proposed supervision period, Alfonsi expressed satisfaction with the plaintiff's performance and removed the restriction on his practice.

In September, 2000, Alfonsi retired as chairman of the department of surgery and Morowitz became chairman in his place. Sometime in early to mid-November, 2000, Clarence Silvia, the defendant's president and chief executive officer, called the plaintiff to a meeting with Silvia, Morowitz and Letterio Asciuto, the president of the medical staff. During the meeting, they informed the plaintiff that because they had concerns about his clinical capabilities, they were going to contact an outside reviewer to analyze his cases.

Although the plaintiff was unaware of it at the time of the November meeting, the proposed external review had, in fact, already been conducted by Randolph Reinhold, a general surgeon and the chairman of the department of surgery at the Hospital of Saint Raphael in New Haven. Silvia and Morowitz had decided to seek external review of the plaintiff's cases in October in response to concerns expressed by nurses who worked in case management quality assurance. Silvia had instructed Elaine Greene, the defendant's director of nursing and chief operating officer, to select a representative sample of the plaintiff's cases to be sent to Reinhold. Greene sent twenty patient charts to Reinhold, selecting only those that had been presented for peer review at morbidity and mortality meetings. When Reinhold completed his review of the charts, he found that: (1) twelve out of the twenty cases demonstrated evidence of error in surgical technique or management; (2) of those twelve errors, nine led to significant adverse outcomes including death; and (3) only six out of the twenty cases were free of complications. Reinhold concluded, on the basis of those findings, that if the sample was representative of the plaintiff's practice, the pattern of errors and complications was widely deviant from accepted standards of surgical care. There was no evidence that Reinhold had been informed that the sample was not random.

In December, 2000, the plaintiff was informed that the report had been returned and, because the report was unfavorable, the defendant's medical executive committee had decided to form a peer review panel for the purpose of conducting further review of his cases. He was not informed, however, who would be on the peer review panel, when the panel would be formed and begin work, or what, precisely, the panel would review. Nor was he informed that the medical executive committee's decision was based on the recommendation of Morowitz, who had requested and been given the authority to convene the peer review panel.

In addition to the twenty charts reviewed by Reinhold, Morowitz, who admitted that he was the plaintiff's direct economic competitor, selected thirteen additional charts for review by the peer review panel ⁴ by reviewing more than 200 of the plaintiff's cases from the years 1998 through 2000, and weeding out any charts that did not present a question of the plaintiff's clinical competence. He acknowledged that he intentionally did not select a random sample and that he had never applied this methodology of selection in any prior review of a physician's patient care. He also stated, however, that he explained to the peer review panel members the methodology he had employed in selecting the thirteen charts.

Morowitz also supplied the peer review panel members with a statistical summary he had prepared on the basis of his review of the plaintiff's cases, but he did not give the panel members the medical staff reappointment summary of 1999 that had summarized the plaintiff's cases for the two years prior to the plaintiff's renewal of privileges, nor did he review that information in compiling his statistical summary of the plaintiff's practice. Morowitz did not check to see if any of the cases that he selected had been screened at the morbidity and mortality meetings, and he did not make any information from those meetings available to the peer review panel members. His statistical summary reported that during the three year period covered by the review, the plaintiff performed a total of 313 procedures, and calculated a rate of error of 13 percent for major procedures and 3 percent for minor procedures, with a combined rate of error of 8 percent.

The plaintiff's first notice that the peer review panel had been formed was on January 29, 2001, when he was summoned before it. The peer review panel, comprised of John Russell, a general surgeon who served at the time as chairman of surgery at New Britain General Hospital, Daniel Scoppetta, a general surgeon and chief of staff at Bristol Hospital, and Jack Huse, a general surgeon and former chairman of the department of surgery at the Midstate Medical Center, had held its first meeting on January 15, 2001, at which time they began their review of the thirty-three charts that Morowitz had provided to them. The peer review panel's second meeting, on January 29, 2001, was already underway when the members summoned ...