Hildyard v. Citizens Med. Ctr., Non–Profit Corp.

• Decision Date: 05 October 2012
• Docket Number: No. 105,468.,105,468.
• Citation: 286 P.3d 239
• Parties: Victor HILDYARD, II, M.D., Appellant, v. CITIZENS MEDICAL CENTER, a Kansas Non–Profit Corporation, Appellee.
• Court: Kansas Court of Appeals

286 P.3d 239

Victor HILDYARD, II, M.D., Appellant,
v.
CITIZENS MEDICAL CENTER, a Kansas Non–Profit Corporation, Appellee.

No. 105,468.

Court of Appeals of Kansas.

Oct. 5, 2012.

Appeal from Thomas District Court; Jack L. Burr, Senior Judge, assigned.
Shannon L. Holmberg and Michael R. O'Neal, of Gilliland & Hayes, P.A. of Hutchinson, for appellant.

Harold S. Youngentob and Mary E. Christopher, of Goodell Stratton Edmonds & Palmer, LLP, of Topeka, for appellee.

Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.

MEMORANDUM OPINION
PER CURIAM.

Victor Hildyard, II, M.D., appeals an entry of summary judgment for Citizens Medical Center, Inc. (CMC). This litigation concerns CMC's termination of the doctor's privileges to practice medicine at CMC. The district court held that CMC had immunity from damages, had not entered into a contract with Dr. Hildyard, and was not liable under antitrust laws. We affirm the district court's judgment.

Factual and Procedural Background

Preliminarily, the district court found the facts were uncontroverted. At the summary judgment hearing, counsel agreed the facts were essentially uncontroverted. As a result, we summarize the case from the parties' uncontroverted facts.

CMC operates three medical facilities in Colby—a primary care clinic, a senior living center, and a hospital. The hospital's medical staff practices under “Medical Staff Bylaws.” These bylaws provide a hearing whenever privileges of a medical staff member are suspended or terminated.

CMC also has its own bylaws. The CMC bylaws establish a board of trustees with the duty, among others, of selecting “a medical staff which shall consist of the physicians and dentists entitled to practice in the Facilities of [CMC] under Medical Staff Bylaws approved by the Board of Trustees.” The CMC bylaws also state: “The power of the Board of Trustees to adopt or amend Medical Staff Bylaws ... shall not be dependent upon ratification by the Medical Staff. In no event shall such Medical Staff Bylaws be considered a contract or to give rise to any contractual rights.” The medical staff bylaws do not contain this language excluding contractual rights.

The hospital also has a hostile work environment policy. Under that policy, any employee of the hospital may complain of disruptive conduct. A complaint initiates a disciplinary process with increasingly formal proceedings.

On April 25, 2002, a registered nurse employed in a supervisory position at the hospital made an oral complaint against Dr. Hildyard. The nurse then submitted a written and notarized complaint “concerning Dr. Hildyard's offensive language and disruptive conduct in the hospital.” On the same day, CMC's chief executive officer (CEO) summarily suspended Dr. Hildyard's privileges and initiated an investigation under the hostile work environment policy.

On April 27–28, 2002, the nurse complainant began writing a suicide note but then went to the hospital's emergency room. She later retracted her complaint both orally and in writing. Subsequently, the district court set aside the summary suspension of Dr. Hildyard's privileges in Case No. 02–C–67, and Dr. Hildyard returned to the medical staff. Nevertheless, CMC retained the services of Paula Roberts Buchele, “an independent human resources consultant,” to investigate the nurse's complaint.

Eventually, the nurse repudiated her retraction in a letter to Buchele. The nurse now said her initial complaint was “true.” On July 8, 2002, Buchele submitted a letter summarizing her investigation. Buchele disregarded four of the registered nurse's allegations because they concerned patient care, which was beyond Buchele's charge. Buchele found seven of the remaining allegations were substantiated, three were inconclusive, and three were unsubstantiated.

In her report, Buchele stated among other things that Dr. Hildyard “acknowledges calling female staff” certain names which she specifically identified. For purposes of this opinion, suffice it to say these names are noteworthy for their inflammatory and highly derogatory characterizations of women. Buchele also substantiated that employees had heard Dr. Hildyard call coworkers names disparaging their intelligence in highly offensive ways. She substantiated that Dr. Hildyard “jokes with female employees in a manner that can be construed as sexual connotations” and that he pinches employees, puts them in headlocks, and gives bear hugs. She reported that “[s]ome employees, both male and female, find Dr. Hildyard's touching, joking and teasing offensive and unwanted.”

CMC also consulted with three physicians regarding Dr. Hildyard's behavior: a family practitioner from Topeka, a retired surgeon from Wichita, and a retired family practitioner from Dodge City. “All three physicians concurred that Dr. Hildyard's behavior ... was unacceptable in and disruptive to the hospital setting. The consulting physicians also concurred that Dr. Hildyard should receive comprehensive medical and neuropsychiatric examinations and should be required to participate in the Colorado Personalized Education for Physicians Program.”

On September 3, 2002, CMC officials and the consulting physicians met with Dr. Hildyard. Dr. Hildyard was asked “to commit to seeking assistance with correcting his behavior and language that continued to threaten the hospital's operations and quality of patient care.” Dr. Hildyard's counsel responded by letter calling the proposal “ ‘totally unacceptable’ “ and announcing his intent to pursue the doctor's “rights to a hearing and appeal.” The hearing and appeal are described below in the analysis section.

On April 10, 2003, CMC terminated Dr. Hildyard's privileges. Over 3 years later, on August 14, 2006, the Kansas Board of Healing Arts (Board) revoked Dr. Hildyard's license to practice medicine. The Board found Dr. Hildyard “ ‘does not dispute and does not challenge the Presiding Officer's findings that he used vulgar and inappropriate language, inappropriate sexual gestures, inappropriate touching, sudden and inappropriate outbursts of anger, and abusive and profane language in front of subordinates and patients, on multiple occasions.’ “

Dr. Hildyard appealed the Board's suspension of his license to the district court, but it affirmed the Board's action. Dr. Hildyard appealed to this court, but he agreed to dismiss the appeal under a consent order. The consent order required in part that Dr. Hildyard would “ ‘complete an educational course on disruptive behavior offered by an organization approved by the Board.’ “ Based on this requirement and restrictions placed on Dr. Hildyard's practice, the Board stayed the revocation of his license.

In the meantime, Dr. Hildyard filed the present lawsuit. In Count I, he alleged that by “failing to afford [him] his due process rights as guaranteed by [CMC's] [b]ylaws and [m]edical [s]taff [b]ylaws, [CMC] breached its contract.” Dr. Hildyard alleged he had “suffered economic damages including, but not limited to, loss of income from his medical practice, disruption of patient care, legal defense costs, and loss of economic opportunity.”

In Count II, Dr. Hildyard made a claim under the Kansas Restraint of Trade Act (KRTA), K.S.A. 50–101 et seq. He pled in conclusory fashion that CMC's violation of the KRTA “caused damages ... including, but limited to, ... lost income of his medical practice, disruption of patient care, legal defense costs, and loss of economic opportunity.”

Subsequently, CMC moved for summary judgment. CMC's statement of uncontroverted facts clarified the doctor's KRTA claim. Dr. Hildyard was a partner in the Colby Medical & Surgical Center and part-owner of Medical Arts, Inc. Dr. Hildyard had alleged in discovery that CMC used the peer review process to “ ‘shift volume’ “ from one of these entities and that CMC had cancelled a contract with the other entity.

In response, CMC claimed immunity under K.S.A. 65–442 and the Health Care Quality Improvement Act (HCQIA), 42 U.S.C. § 11101 (2006)et seq. CMC also argued: “The underlying basis for [Dr. Hildyard's] contract claim is the supposition that medical staff bylaws gave rise to a contract. They explicitly state, however, that the medical staff bylaws ‘are not a contract and do not give rise to any contractual right.’ “ In fact, this provision is found in the CMC bylaws, not the medical staff bylaws.

The district court held that CMC was immune under K.S.A. 65–442. The district court also determined that CMC was immune from money damages under the HCQIA. The district court then addressed the contract claim:

“The premise outlined by the doctor is based on the opinion that medical staff bylaws constitute a contract between the doctor and hospital. The argument of the doctor however requires him to overcome the hurdle that is presented by the bylaws themselves which state that they ‘are not a contract and do not give rise to any contractual right.’ The bylaws in this case would indicate no ambiguity and it is difficult to imagine how they can be interpreted to give rise to a contractual right.”

Finally, the district court addressed the KRTA claim, holding that the antitrust claim was barred by the HCQIA. Dr. Hildyard filed a timely appeal.

After appellate oral arguments, on July 11, 2012, CMC filed a suggestion of death upon the record advising of the death of Dr. Hildyard on July 3, 2012. See K.S.A.2011 Supp. 60–225(a)(1). On September 20, 2012, the Estate of Victor H. Hildyard, II, by and through Brenda K. Hildyard, Administrator for the Estate of Victor H. Hildyard, II, filed a motion to substitute the estate as a party to this appeal. CMC did not object. The motion was granted.

Immunity

Dr. Hildyard contends CMC was not immune under K.S.A. 65–442 and the HCQIA. Our standard of review of summary judgment is well established:

“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that...