Long v. Mount Carmel Health Sys.

• Decision Date: 27 June 2017
• Docket Number: No. 16AP–511,16AP–511
• Citation: 2017 Ohio 5522,93 N.E.3d 436
• Parties: Joseph LONG, M.D., Plaintiff–Appellant, v. MOUNT CARMEL HEALTH SYSTEM, Defendant–Appellee.
• Court: Ohio Court of Appeals

93 N.E.3d 436

2017 Ohio 5522

Joseph LONG, M.D., Plaintiff–Appellant,

v.MOUNT CARMEL HEALTH SYSTEM, Defendant–Appellee.

No. 16AP–511

Court of Appeals of Ohio, Tenth District, Franklin County.

Rendered on June 27, 2017

On brief: Hammond Law Office, Gary W. Hammond ; Butler Cincione & DiCuccio, and N. Gerald DiCuccio, Columbus, for appellant. Argued: Gary W. Hammond.

On brief: Ice Miller LLP, Kris M. Dawley, and Robert J. Cochran, Columbus, for appellee. Argued: Kris M. Dawley.

DECISION

LUPER SCHUSTER, J.

{¶ 1} Plaintiff-appellant, Joseph Long, M.D., appeals from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Mount Carmel Health System ("Mount Carmel"). For the following reasons, we affirm.

I. Factual and Procedural History

{¶ 2} Mount Carmel owns and operates multiple hospitals in the Columbus area, including Mount Carmel West. On February 1, 2012, Mount Carmel contracted with Consultant Anesthesiologists, Inc. ("CAI"), a medical practice group, to provide professional anesthesiology services at Mount Carmel West (hereinafter the "Services Agreement"). The Services Agreement stated that all the anesthesiologists CAI selected to practice at Mount Carmel West would be subject to Mount Carmel's approval, and that Mount Carmel approved all of the CAI anesthesiologists currently practicing at Mount Carmel West. Among those approved physicians was Long, an anesthesiologist who CAI employed under a contract. Long was a member of the Mount Carmel West medical staff and had privileges at Mount Carmel West. After Mount Carmel and CAI executed the Services Agreement, Long practiced anesthesiology at Mount Carmel West pursuant to that contract.

{¶ 3} In early April 2012, Mount Carmel removed Long from the Mount Carmel West campus. Melissa W. Fleming, assistant general counsel at Mount Carmel, explained Mount Carmel's reasons for removing Long in an April 5, 2012 letter to Brandi Kondracke, CAI's chief executive officer. Fleming stated:

Sometime during the month of March 2012, Dr. Long took photographs on his cell phone of a Mount Carmel nursing employee, [A.M.],¹ in the OR while [A.M.] was bending over a patient on the OR table. Dr. Long then proceeded to send the photographs via text messaging to other members of your practice as well as show other Mount Carmel staff the photographs on his phone.

In mid-March, * * * [another CAI anesthesiologist] showed [A.M. and another nurse] another picture of [A.M.] that had been texted to him by Dr. Long and this photograph showed [A.M.'s] side exposed as she reached over a patient.

Both physicians were instructed by the Chairman of the Anesthesia Department as well as the Anesthesia Medical Director earlier this week to cease the behavior and have no further communications with [A.M.].

* * *

In addition, Dr. Long has been reported to have walked into an OR on April 3rd, and in front of everyone in the room, stated that he would have had a bad day if he had been assigned in the next OR because, "that bitch" (referring to [A.M.] ) is in the other room. * * * [T]his retaliation creates an uncomfortable work environment for all of the staff in the OR which leads to potential compromise in patient safety; therefore, Mount Carmel is removing Dr. Long effective immediately pending further investigation.

(Apr. 5, 2012 letter from Fleming to Kondracke, attached to Compl.)

{¶ 4} Fleming also informed Kondracke that Mount Carmel had not yet completed its investigation into Long's actions. Fleming requested a meeting with Kondracke to discuss the situation, and she promised to provide Kondracke with the results of Mount Carmel's investigation prior to the meeting.

{¶ 5} Melissa Stacy–Cull, the director of surgical services at Mount Carmel West, investigated Long's conduct. Stacy–Cull interviewed A.M., as well as other members of the nursing staff. Stacy–Cull neither viewed the photographs at issue nor spoke with Long or the physician who received the photographs from Long. At the conclusion of her investigation, Stacy–Cull drafted a report, dated April 11, 2012, that generally confirmed the conduct described in the April 5, 2012 letter. Mount Carmel sent a copy of the report to Kondracke.

{¶ 6} Mount Carmel representatives met with CAI representatives on April 13, 2012 to discuss Long. Prior to the meeting, Sean McKibben, president and chief operating officer of Mount Carmel West, and Larry Swanner, vice president of medical affairs at Mount Carmel West, had decided to permanently bar Long from practicing at Mount Carmel West. McKibben announced Mount Carmel's decision at the meeting. Thomas Englehart, CAI's then president, asked the Mount Carmel representatives to consider giving Long a second chance given the long length and high quality of Long's service at Mount Carmel West. Mount Carmel declined.

{¶ 7} Pursuant to Long's employment contract with CAI, Long was required to "devote his * * * full time and attention to the performance of professional services for" CAI and "be responsible for providing on call coverage." (July 21, 2009 Employment Agreement at Section 3, attached to the Compl.) Once Mount Carmel removed Long from Mount Carmel West, he could no longer perform those contractual duties. Consequently, CAI terminated Long's employment agreement.

{¶ 8} On October 24, 2013, Long filed suit against Mount Carmel, alleging claims for breach of contract and tortious interference with contract, and seeking a declaratory judgment. In his complaint and amended complaint, Long asserted that Mount Carmel failed to follow the process set forth in the Services Agreement regarding CAI physicians with alleged performance or behavior issues. Section 4.2 of the Services Contract provided:

(i) Should issues of performance or behavior with any of the Providers arise which, at the reasonable discretion of [Mount Carmel], affects the immediate safety of patients, staff or members of the Hospital's Medical Staff, or otherwise gives rise to a summary suspension action under the Medical Staff Bylaws, [Mount Carmel] shall immediately remove Provider from Hospital and provide written notice of such issues to Contractor and the affected Provider as set forth below in (iii) within twenty-four (24) hours of the removal (a "Provider Adverse Act").

* * *

(iii) If [Mount Carmel] believes a Provider Adverse Act has occurred, [Mount Carmel] shall provide Contractor and Provider with a written notice describing Hospitals' concerns in sufficient enough detail to enable Contractor and Provider to assess the gravity of the situation (the "Notice"). Such Notice shall be given within two (2) business days (within 24 hours if the Adverse Act arises under subsection (i)) of the day when the Hospital learns of the Provider Adverse Act. Within two (2) business days of the Notice [Mount Carmel], Contractor and Provider (should Provider desire to do so) shall meet to review the pertinent information and discuss a resolution of [Mount Carmel]' s concerns (the "Meeting"). Prior to such Meeting, [Mount Carmel] shall provide Contractor and Provider with all reasonable information requested by such parties related to the alleged Provider Adverse Act. Within 3 business days from the Meeting, Contractor's President, or his/her designee, a senior executive of [Mount Carmel] designated by [Mount Carmel] and Provider shall work to mutually resolve the issues caused by the Provider Adverse Act. In the event the parties are unable to resolve the issues to the satisfaction of [Mount Carmel] within this time period, Contractor shall remove such Provider from providing the Services during further investigation which in all events shall be concluded within 30 days of the Meeting. If at the end of the 30 days from the Meeting the issue is not resolved by mutual agreement, [Mount Carmel] will issue to Contractor a decision on whether or not the Provider may return to Hospital(s) to provide Services.

(Feb. 1, 2012 Agreement for Anesthesia Services, attached to Mount Carmel's Mot. for Summ. Jgmt.) Long alleged that Mount Carmel breached Section 4.2 when it failed to: (1) provide him with any notice, (2) include him in the April 13 meeting, and (3) work with him to mutually resolve the issues caused by his alleged misconduct.

{¶ 9} Long also asserted in his complaint that Mount Carmel's actions breached the Medical Staff Bylaws, which are the rules, policies, and procedures governing the medical staff of Mount Carmel West. Long alleged that the Medical Staff Bylaws entitled him to certain protections, including notice and a hearing, which Mount Carmel denied him. Finally, with regard to his claim for tortious interference with contract, Long claimed that Mount Carmel's refusal to allow him to practice at Mount Carmel West improperly interfered with his employment contract with CAI. Long contended that, due to Mount Carmel's decision to bar him from Mount Carmel West, he could not perform his duties under the employment contract and CAI terminated the contract.

{¶ 10} After conducting discovery, both parties moved for summary judgment. In a judgment dated June 17, 2016, the trial court granted Mount Carmel's motion and denied Long's motion. Long timely appeals.

II. Assignments of Error

{¶ 11} Long assigns the following errors for our review:

[1.] The trial court erred in finding Dr. Long was not an intended third-party beneficiary of the Agreement for Anesthesia Services between CAI and [Mount Carmel].

[2.] The trial court erred in finding [Mount Carmel] did not breach the services agreement between CAI and [Mount Carmel].

[3.] The trial court erred in finding [Mount Carmel] did not violate Dr. Long's rights under the Bylaws (Ex[.] 9) by violating his rights under Ex[.] 2 (contract) and Ex[.] 10–5, HR procedures.

[4.] The trial court erred in finding [Mount Carmel] is entitled to Summary Judgment on Plaintiff's tortious interference with contract claim and in denying Plaintiff's Motion for Summary Judgment.

[5.]

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