Levy v. Clinton Mem. Hosp., 2007 Ohio 7077 (Ohio App. 12/28/2007)
| Decision Date | 28 December 2007 |
| Docket Number | No. CA2007-05-027.,CA2007-05-027. |
| Citation | 2007 Ohio 7077 |
| Parties | Richard L. Levy, M.D., et al., Plaintiffs-Appellants, v. Clinton Memorial Hospital, Defendant-Appellee. |
| Court | Ohio Court of Appeals |
Strauss & Troy, LPA, Richard S. Wayne, Lori A. Ross, John M. Levy, The Federal Reserve Building, 150 East Fourth Street, Cincinnati, OH 45202-4018, for plaintiffs-appellants.
Squire, Sanders & Dempsey L.L.P., Philomena M. Dane, 41 South High Street, Columbus, OH 43215-6197, for defendant-appellee.
{¶1} Appellants, Richard L. Levy, M.D., Peter R. Fried, M.D., and Marc R. Mosbacher, M.D., appeal a judgment by the Clinton County Court of Common Pleas granting declaratory relief in favor of appellee, Clinton Memorial Hospital, and denying their request for declaratory and injunctive relief.1 We affirm the decision of the trial court.
{¶2} In 2005, appellee's board of trustees hired a consultant to discuss the development of a cancer center to provide full-service cancer care to cancer patients in its service area. The board envisioned care that was integrated and collaborative between medical oncologists and radiation oncologists. Appellee determined that it wanted to operate the radiation oncology department in such a way as to have a radiation oncologist present at the hospital during all times when radiation therapy was being administered. Radiation therapy patients receive treatment five days per week for several weeks, so this required a radiation oncologist to be present at the hospital five days per week.
{¶3} Upon recommendation of the consultant, the board arranged for the purchase of a linear accelerator, which is a state-of-the-art piece of equipment used to deliver radiation therapy. Appellee's cobalt unit, another machine used to deliver radiation therapy to patients with cancer, was scheduled to be decommissioned in January of 2007. Appellee arranged for the construction of facilities to house the linear accelerator and office suites for professionals involved in the care of cancer patients, including among others the radiation and medical oncologists.
{¶4} Appellant Levy has been providing radiation oncology services to patients at Clinton Memorial Hospital ("the hospital") pursuant to his medical staff appointment and clinical privileges there for more than 20 years. Appellants Fried and Mosbacher have also been on the medical staff and exercising clinical privileges at the hospital for several years. Appellants are associated with a corporation that also employs medical oncologists. Appellee attempted to contract with this corporation for the purpose of securing the physician coverage it envisioned for the comprehensive cancer center, including both medical and radiation oncology. However, for business reasons, the corporation declined to contract with appellee under the proposed terms. The corporation determined that the volume of business in Wilmington did not warrant the presence of a radiation oncologist at the cancer center on a five-days-per-week basis.
{¶5} Appellee subsequently entered into an employment agreement with Dr. Stella Ling for the provision of radiation oncology services. By board resolution adopted on January 24, 2006, appellee determined that Ling would be the exclusive provider of radiation oncology services at the facilities that comprised the new cancer center. This resolution effectively provided Ling with the exclusive use of the new linear accelerator. Appellee contends that appellants are free to continue to treat patients at the rest of the hospital as they always have. However, because the cobalt unit has been decommissioned, without access to the linear accelerator appellants have no ability to deliver radiation therapy to their patients on the hospital campus.
{¶6} As a result of appellee's board resolution providing that Ling would have the exclusive right to use the linear accelerator, this suit ensued. Appellants requested a declaratory judgment that they are entitled to practice their medical specialty at the cancer center, including use of the linear accelerator. They requested a temporary restraining order, as well as temporary and permanent injunctions allowing them to exercise their privileges at the cancer center. The legal theory underlying their requests for equitable relief is that appellee was not permitted under law to enter into an exclusive arrangement, and that the medical staff bylaws and the privileges granted to appellants, separately or together, constitute contracts between appellants and appellee granting appellants the right to access and use the cancer center, including the linear accelerator.
{¶7} In a separate suit against the corporate entity that employs appellants, appellee requested a declaratory judgment that the exclusive arrangements for the provision of radiation and medical oncology at the cancer center by doctors who are employees of the hospital are valid and enforceable. Appellee also requested a declaratory judgment that it did not terminate the staff privileges of the doctors.
{¶8} The trial court found and declared that appellee has the lawful authority to pass a resolution granting exclusive privileges to practice medical specialties at the cancer center to appellee's employees to the exclusion of other credentialed specialists. The trial court found and declared that the conferring of staff privileges does not create a contract between appellee and appellants. The trial court denied appellants' requests for equitable relief.
{¶9} Appellants appeal raising four assignments of error.
{¶10} Appellants' first assignment of error states:
{¶11} "THE TRIAL COURT ERRED IN FINDING THAT DEFENDANT/APPELLEE HAS LAWFUL AUTHORITY TO PASS A RESOLUTION GRANTING EXCLUSIVE PRIVILEGES TO PRACTICE RADIOLOGY AND MEDICAL ONCOLOGY AT THE CMH CANCER CENTER TO RADIOLOGY AND MEDICAL ONCOLOGISTS WHO ARE EMPLOYED BY CMH UNDER A CONTRACT OF EMPLOYMENT TO THE EXCLUSION OF OTHER CREDENTIALED RADIOLOGY AND MEDICAL ONCOLOGISTS."
{¶12} In Khan v. Suburban Community Hosp. (1976), 45 Ohio St.2d 39, syllabus, the Supreme Court held:
{¶13} "Where the board of trustees of a private, nonprofit hospital adopts reasonable, nondiscriminatory criteria for the privilege of practicing major general surgery in the hospital, and procedural due process is followed in adopting and applying such criteria, * * * a court should not substitute its evaluation and judgment of such matters for those of the board of trustees * * *."
{¶14} Although Khan was decided in the context of physician competency decisions, the Ohio Supreme Court's language limiting review of hospital decisions has been specifically applied by Ohio Courts of Appeal in the context of hospital decisions limiting privileges in the adoption of closed-staff operations. See, e.g., Holt v. Good Samaritan Hospital and Health Center (1990), 69 Ohio App.3d 439, 442. The rule is limited where there is a contention that the hospital failed to conform to its own procedural requirements, or acted arbitrarily, capriciously, or contrary to public policy. See Khan at 45. However, in reviewing a hospital's actions, the trial court Khan at 44, quoting Sosa v. Board of Managers of Val Verde Memorial Hospital (C.A.5, 1971), 437 F.2d 173, 177.
{¶15} In Bouquett v. St. Elizabeth Corp. (1989), 43 Ohio St.3d 50, at paragraph one of the syllabus, the Ohio Supreme Court clarified the above standard, holding:
{¶16}
{¶17} While the decisions above applied to private hospitals, the rationale of the cases is equally applicable to public hospitals. Judicial review of hospital decisions has been likened to judicial review of agency decisions, and we find that analysis apropos. Courts that have permitted review of the decisions of hospitals have done so because a hospital's "actions substantially affect the public interest" such that a hospital, regardless of the type of entity, cannot be considered entirely private. Lewin v. St. Joseph Hospital of Orange (1978), 82 Cal. App.3d 368, 384. The power to determine staff membership has been called "a fiduciary power, which must be exercised reasonably and for the public good." Davidson v Youngstown Hospital Assoc. (1969), 19 Ohio App.2d 246, paragraph one of the syllabus. But the scope of review is limited in deference to the expertise of the governing board of the hospital in addition to the private nature of the entity. Lewin at 385. This rationale is compelling whether the hospital is public or private. See Kelkar v. Community Hospital of Bedford (1982), Cuyahoga App. No. 43641, 1982 WL 2339, at *9; Sosa v. Board of Managers of Val Verde Memorial Hospital, 437 F.2d 173 (5th Cir.1971).
{¶18} Appellants cite Kessel v. Monongalia County General Hospital Co. (2004), 215 W. Va. 609, 613, for the proposition that a physician who has conformed to the law and to all reasonable rules and regulations of a public hospital has a right to become a member of the medical staff. While this may be an accurate statement of the law of West Virginia, as applied in Ohio it appears to be inaccurate. Kessel cites to 40A Am.Jur.2d, Hospitals and Asylums Section...
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