Jackson v. Radcliffe, Civ. A. No. H-86-4721.

• Decision Date: 13 April 1992
• Docket Number: Civ. A. No. H-86-4721.
• Citation: 795 F. Supp. 197
• Parties: Dr. Tom JACKSON, Plaintiff, v. Dr. RADCLIFFE, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

795 F. Supp. 197

Dr. Tom JACKSON, Plaintiff, v. Dr. RADCLIFFE, et al., Defendants.

Civ. A. No. H-86-4721.

United States District Court, S.D. Texas, Houston Division.

April 13, 1992.

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Kenneth G. Norman, Houston, Tex., for plaintiff.

Daniel M. McClure, Stephen R. Kirklin, Mitchell J. Buchman, Jeffrey R. Parsons, Houston, Tex., Richard L. Tate, Richmond, Tex., Kenneth C. Curry, Hurst, Tex., for defendants.

MEMORANDUM AND ORDER

HARMON, District Judge.

Pending before the Court are the following motions:

(1) Motion for Summary Judgment of defendants Parkway Hospital ("Parkway"), American Medical International, Inc. ("AMI"), Ben Tobias ("Tobias") and Dr. Nicola Perone ("Perone") (# 41);

(2) Motion for Summary Judgment of defendants Dr. Arthur Kirkland, Dr. Victor A. Mendiola and Dr. James K. McNatt (# 37);

(3) Motion for Summary Judgment of defendant Dr. Mohammed Athari (# 40);

(4) Motion to Dismiss of defendants Dr. Arthur Kirkland, Dr. Victor A. Mendiola and Dr. James K. McNatt (# 182);

(5) Motion to Dismiss of defendants Parkway Hospital, American Medical International, Inc., Ben Tobias and Dr. Nicola Perone (# 179).

The motions to dismiss essentially reurge the motions for summary judgment. The motions for summary judgment are brought on essentially the same grounds. Indeed, plaintiff's Memorandum of Points and Authorities (# 58) in response addresses the issues raised by all three motions for summary judgment. Accordingly, the Court consolidates all the motions for summary judgment and to dismiss into a single disposition.

I. STATEMENT OF FACTS

The instant litigation is the product of a series of events which culminated in the termination of plaintiff's radiology contract with Parkway in 1985. Essentially, the factual background of the suit is as follows.¹ Parkway is owned by AMI. Defendant Tobias was Executive Director of Parkway and a member of its Radiology Subcommittee at times pertinent to this lawsuit. Defendant Perone was the Chief of Staff of Parkway's Medical Staff. The other defendants² are physicians who practiced medicine at Parkway.

Plaintiff had been associated with Parkway since its opening in 1967. He was in charge of the Radiology Department from that time until August, 1981, when he underwent heart surgery. Following plaintiff's recovery, Parkway's Medical Executive Committee ("MEC") voted that he should continue as Director of Radiology. A Radiology Agreement between Parkway and plaintiff was drawn and signed in early 1983. The agreement provided that plaintiff would administer Parkway's Department of Radiology, and would provide specialists sufficient to provide adequate radiological services to the hospital staff. Parkway retained the right to approve plaintiff's associates. The agreement further provided that staff membership and privileges of all specialists would terminate upon termination of the contract. Plaintiff hired three associates for the Radiology Department, including defendant Dr. Radcliffe.

In late 1984 or early 1985, Dr. P.B. Patil, who had recently joined Parkway's staff, organized a management group at Parkway comprised of thirty to forty doctors, most of whom were on the active staff at Parkway. The management group included defendant Drs. Kirkland, Mendiola, McNatt and Athari. The management group was organized for the purpose of forming an "HMO."

A number of problems developed between plaintiff, Parkway and several other doctors within the hospital. These problems need not be recounted here in chapter and verse, except to note that several doctors complained of plaintiff's mismanagement of the Radiology Department and that there were at least two votes of "no confidence" taken, both of which plaintiff survived. Plaintiff, however, would later be terminated.

Plaintiff was a partner in Parker Road Investors ("PRI"), a partnership which owned a professional building, Parkway Towers, adjacent to Parkway Hospital. The partnership included Dr. Patil. Plaintiff alleges that the management group, in an attempt to form the HMO and gain control over Parkway and Parkway Towers, sought to purchase Parkway Towers from PRI for 50% of its appraised value. Plaintiff replied that he would be interested only if AMI subsidized the other 50% of Parkway Towers' appraised value. Plaintiff also alleges that the management group wanted him to pay it 30% of his professional fees in exchange for patient referrals.

AMI refused plaintiff's subsidization proposal. Accordingly, Tobias told the management group that Parkway would not go along with the HMO proposal. The management group then sought to acquire Parkway's ancillary services from AMI, and allegedly threatened Tobias with a physician boycott of Parkway unless AMI complied. The management group allegedly further threatened to have plaintiff's contract terminated if he did not go along with their "kickback scheme."

April, 1985, was a vexing month for the physicians at Parkway. The MEC Radiology Subcommittee terminated Dr. Radcliffe's hospital privileges and directed plaintiff to fire Dr. Radcliffe without cause. Plaintiff complied. On or about April 23, 1985, there was held a medical staff meeting as part of a social function. One physician, Dr. Mendoza, complained that the MEC was making secret decisions regarding the Radiology Department, namely the termination of Dr. Radcliffe, behind the medical staff's back and without providing reasons for the termination. A heated discussion regarding the termination of Dr. Radcliffe ensued. Dr. Mendoza moved to reinstate Dr. Radcliffe until a special meeting of the staff could be held, which motion carried, even though Dr. Radcliffe was contractually ineligible for reinstatement due to contract restraints with plaintiff.³

At that same meeting, defendant Dr. Mendiola then submitted a motion to terminate plaintiff's contract and give temporary privileges to Drs. Lee and Radcliffe until a search committee could recommend a new radiology group, raising the issue under "other business." The staff voted thirty-seven to zero to terminate plaintiff's Radiology Agreement. On May 14, 1985, Tobias delivered a letter to plaintiff, officially terminating his Radiology Agreement with Parkway and giving ninety days' notice. As reasons for the termination, Tobias cited inadequate service, disharmony within the department, not appointing a department director, not forming a partnership, not being personally present often enough, not performing enough exams, not reading enough films and terminating Dr. Radcliffe. Plaintiff alleges that the minutes of the Radiology Subcommittee regarding Dr. Radcliffe's termination were deliberately withheld from the MEC, the Board of Directors and the medical staff prior to his official termination.

A search committee of seven members, four of whom were members of the management group, was formed to find a new radiology group. In order to allow the other members of his radiology partnership to pursue the new radiology contract at Parkway, plaintiff entered into a Financial Agreement with Drs. Wood, Guerra-Paz, Gomez and Lee (the "Wood Group") which released them from the restrictive covenant contained in their Partnership Agreement with plaintiff ("Release") and provided for payment of $525,000.00 to plaintiff. The Wood Group was one of three radiology groups considered. One group was disqualified, leaving only the Wood Group and the "Abdo Group." The Wood Group and the Abdo Group were to address the medical staff at its July 23, 1985, meeting.

On July 15, 1985, however, the search committee disqualified the Wood Group. The Wood Group had been instructed to deliver the Release before a July 15, 1985, meeting of the search committee to convene at 4:30 p.m. The Release letter was allegedly delivered at 2:00 p.m., but the Wood Group representative was told that the Wood Group had been disqualified because the meeting had been moved up to 1:30 p.m., and that, therefore, the Release was not delivered on time. Therefore, on July 22, 1985, the Board of Directors of Parkway met with the MEC and unanimously approved the Abdo Group. Plaintiff alleges that this deprived him of the opportunity to sell his practice for $525,000.00.

Plaintiff further alleges that between May and August, 1985, after his termination, but before it took effect, Drs. Patil, Athari and McNatt, on behalf of the management group, sought to force him to sell his practice to them. He further alleges that they threatened him with a boycott and threatened to install a CAT scan operation and run him out of business if he did not sell. A CAT scan operation was installed in Parkway Towers prior to the effective date of plaintiff's termination, allegedly in violation of plaintiff's exclusive agreement to practice radiology there. Allegedly again threatened with boycott, plaintiff was forced to sell his practice for $65,000.00, which he claims was well under its value.

All of these events, plaintiff asserts, amount to a conspiracy on the part of the defendants to take control of Parkway, Parkway Towers and the affiliated medical services, and to oust plaintiff from his practice because he would not go along with the threats of boycott and the "kickback scheme." Plaintiff has asserted a number of causes of action in his First Amended Complaint:

(1) Denial of procedural and substantive due process;

(2) Tortious interference;

(3) Breach of contract as to defendant Dr. Radcliffe (4) Violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.A. §§ 1961-68 (West 1984 & Supp.1991);

(4) Civil conspiracy;

(5) Violation of federal and state antitrust laws; and

(6) Breaches of fiduciary duty.

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Rule 56(c) provides that "summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show...