Martinedk v. U.S, No. C-3-00-252.

• Decision Date: 07 January 2003
• Docket Number: No. C-3-00-252.
• Parties: Edward MARTINEK, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Ohio

254 F.Supp.2d 777

Edward MARTINEK, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. C-3-00-252.

United States District Court, S.D. Ohio, Western Division.

January 7, 2003.

Carla J. Morman, David Carr Greer, Bieser, Greer & Landis, Dayton, OH, for Plaintiffs.

Pamela M. Stanek, United States Attorney's Office, Dayton, OH, for Defendant.

EXPANDED OPINION SETTING FORTH THE REASONING AND CITATIONS OF AUTHORITY FOR SUSTAINING THE MOTION OF THE UNITED STATES TO DISMISS, PURSUANT TO FED. R. CIV. P. 12(B)(1), FOR LACK OF SUBJECT MATTER JURISDICTION (DOC. # 19); JUDGMENT TO BE ENTERED IN FAVOR OF DEFENDANT AND AGAINST PLAINTIFFS; TERMINATION ENTRY

RICE, Chief District Judge.

This litigation arises out of the limitation of Major Edward Martinek's medical privileges at the Wright Patterson Medical Center ("WPMC"), and the sending of correspondence to the Ohio State Medical Board, which reported that Dr. Ann Marie Martinek had improperly performed an invasive medical procedure at WPMC.¹ At the time of the events underlying this lawsuit, Plaintiff Edward Martinek, M.D., was a Major in the United States Air Force, assigned to WPMC at Wright Patterson Air Force Base.² Major Martinek specializes in radiology. His wife, Plaintiff Ann Marie Martinek, M.D., is also a medical doctor, who specializes in ophthalmology; she is not, and has never been, a member of the armed services.

On July 19, 1998, Major Martinek performed a percutaneous transepatic cholangiogram and attempted to perform a percutaneous transepatic biliary drainage procedure at WPMC. Dr. Ann Marie Martinek was present during the procedure, and she participated to a minor extent.³ No adverse outcome resulted from Dr. Martinek's assistance. While investigating unrelated allegations of improper fraternization, Major Martinek's supervisor, Colonel Kevin Voss, M.D., the Medical Director of Diagnostic Imaging Flight, became aware of Dr. Martinek's participation in the July 19, 1998, procedure, and he began an investigation of that incident. On August 11, 1998, Colonel Voss spoke with and typed a witness statement for Sergeant James K. Thompson, the radiology technologist who was present during the biliary drainage procedure. After he was asked to provide more details, a revised statement, dated August 12, 1998, was typed for Sergeant Thompson. Colonel Voss subsequently took administrative action to remove Major Martinek from the interventional radiology suite.

After obtaining the witness statements from Sergeant Thompson, Colonel Voss contacted Colonel Kathleen S. Bohanon, M.D., the Chief of the Medical Staff, regarding the situation. Colonel Bohanon discussed the situation with Brigadier General Joseph E. Kelley, the Medical Facility Commander ("MFC") of WPMC (Bohanon Depo. at 50-52), who, in turn, discussed it with Lieutenant General Raggio, the Aeronautical Systems Center ("ASC") Commander. Because General Raggio wanted to court martial Major Martinek for his conduct (Bohanon Depo. at 51), they decided to refer the matter to the Air Force Office of Special Investigations ("OSI"), as a criminal matter for dereliction of duty (id. at 51, 55). Ultimately, Major Martinek received an Article 15 non-judicial punishment in lieu of court-martial for that incident.

On August 20, 1998, Colonel Bohanon notified Major Martinek that his clinical privileges were being held in abeyance, and that he would be restricted from performing vascular and interventional radiology. In addition, as Chairperson of the Credentials Function Committee, she called a meeting of that committee to review Major Martinek's privileges at the hospital. On October 2, 1998, the Credentials Function Committee met, attended by Colonel Bohanon, Colonel Voss, Colonel Thomas O'Donnell, Lieutenant Colonel Steven L. Chambers, Captain John Soave (Medical Law Consultant), and Ms. Jackie Walker (Credentials Manager). Because Lieutenant Colonel Chambers and Colonel O'Donnell had not heard about the situation, Colonel Bohanon described what had occurred on July 19, 1998. The only information that she had concerning the incident was the OSI witness statements and Sergeant Thompson's statements. Colonel Bohanon indicated that the committee was not questioning Major Martinek's technical competence. Rather, only his professional behavior and "competence to follow the rules of the hospital that were maintained to establish safe patient care" were at issue. Colonel Voss participated in the Credentials Committee's review of Major Martinek's conduct. He told members of the committee that, regardless of whether they took any privileging action, he was going to see to it administratively that Major Martinek did not get back into interventional radiology at the WPMC (Voss Depo. at 147-48). He stated that he "had" Major Martinek and he was going to keep him out of his specialty until he got out of the Air Force {id. at 152), despite the fact that Voss agreed that Major Martinek was technically competent. The Committee voted to require that Major Martinek have supervision by another privileged radiologist for certain procedures.

On October 16, 1998, Major Martinek was notified by Colonel Bohanon that his clinical privileges would be automatically suspended. Colonel Bohanon further submitted letters to Riverside Hospital in Columbus, Ohio, and the Veterans Administration Medical Center in Dayton, Ohio, notifying them that Major Martinek's privileges had been limited. Plaintiff appealed the suspension, and on November 6, 1998, Major Martinek was notified that the Credentials Hearing Committee would conduct a hearing on his permitting his wife to participate in an invasive clinical procedure, and on other occasions of alleged unprofessional conduct. In February of 1999, that Committee recommended that, due to Major Martinek's errors in judgment, his privileges should be limited by requiring that all interventional procedures be supervised by another privileged radiologist.

Major Martinek was honorably discharged from the Air Force on June 29, 1999, after completing four years of military service (Doc. # 30, Ex. C). On November 15, 1999, the limitation of Major Martinek's privileges was overturned on appeal by the Air Force Medical Operations Agency ("AFMOA"). Because Major Martinek had already separated from the Air Force, his privileges were not reinstated. Major Martinek petitioned the Air Force Board for Correction of Military Records, requesting that any indication that he had his privileges restricted be deleted, that his non-judicial punishment be set aside, and that his Officer Performance Report for the period June 3, 1998, through June 2, 1999, be declared void. On July 19, 2002, the Board granted his request in its entirety, reasoning that Colonel Voss had a personal vendetta against Major Martinek and that Colonel Voss' bias impacted the non-judicial punishment and the Officer Performance Report (Doc. # 30, Ex. C).

With regard to Ann Marie Martinek, Colonel Bohanon sent a letter to the State Medical Board of Ohio, accusing her of practicing invasive radiology during a procedure at WPMC. After an investigation, the Medical Board took no action against her.

On April 18, 2000, the Martineks filed suit against Colonels Voss and Bohanon in the Montgomery County Court of Common Pleas, setting forth claims of tortious interference with their professional relationships (Counts One and Three) and loss of consortium (Counts Two and Four) (Doc. # 1). The United States Attorney subsequently certified that Colonels Voss and Bohanon were acting within the course of their employment with regard to the conduct alleged in the Complaint (id.). On May 17, 2000, the United States removed the litigation to this Court.

Pending before the Court is the Motion of the United States to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), or, in the alternative, for Summary Judgment (Doc. # 19). In its Motion, the government has asserted numerous grounds for dismissal of each claim. With regard to Edward Martinek's tortious interference with business relations claim (Count One), it argues that the claim is barred, due to (1) the intra-military immunity doctrine, (2) the Feres doctrine, and (3) the intentional tort exception for interference with contract rights. The government argues that Ann Marie Martinek's claim must be dismissed (Count Three), due to (1) the intentional tort exception for interference with contract rights; (2) the discretionary function exception; and (3) Ohio Rev.Code § 4731.22(f)(1). In addition, the government asserts that both Plaintiffs' loss of consortium claims (Counts Two and Four) must be dismissed, because their underlying claims are not viable.

In response to the Motion of the United States, the Martineks have argued that the government was improperly substituted for Colonels Voss and Bohanon as Defendant, because those individuals were not acting within the scope of their employment. Plaintiffs argue that the Feres doctrine applies only to claims under the Federal Torts Claims Act ("FTCA") and, therefore, it is not applicable to the state law claims against Voss and Bohanon individually. Dr. Ann Marie Martinek further asserts that Ohio Rev.Code § 4731.22(f)(1) does not shield Colonel Bohanon from liability, because she failed to conduct a good faith investigation into the incident. In addition, both Plaintiffs assert that, because their state law claims against Colonels Voss and Bohanon survive, their loss of consortium claims also remain.

On September 24, 2001, the Court issued an Opinion, sustaining Defendant's Motion, treated in part as a Motion to Dismiss for want of this Court's subject matter jurisdiction, under Fed.R.Civ.P. 12(b)(1), and in part as one for summary judgment. In this Expanded Opinion, the Court will set forth the reasoning and citations of authority for the dismissal of this action. Upon review of the relevant case law, the Court now concludes that Plaintif...