Mehlman v. Cincinnati Children's Hosp. Med. Ctr.

Decision Date11 August 2021
Docket Number1:20-cv-813
CourtU.S. District Court — Southern District of Ohio

Dlott J.


Karen L. Litkovitz, United States Magistrate Judge.

This matter is before the Court on the motion to dismiss (Doc. 8) filed by defendants Cincinnati Children's Hospital Medical Center (CCHMC), Richard M. Ruddy, [1] M.D., and Daniel von Allmen, M.D. (collectively, defendants). Plaintiff Charles T. Mehlman filed a response (Doc. 13) to which defendants have replied (Doc. 14). Both parties have requested oral argument. Pursuant to S.D. Ohio Civ. R. 7.1 the Court finds that oral argument is not “essential to the fair resolution” of this case and denies the requests for oral argument. The Court recommends that defendants' motion be granted in part and denied in part. I.Background[2] Plaintiff is a pediatric orthopedic surgeon who has been licensed to practice medicine in Ohio since 1990 and employed by CCHMC since 1996. CCHMC and plaintiff entered into an employment agreement on March 1, 2002. (See Doc. 1-2). Since 2015, defendant Richard Ruddy, M.D., has occupied several administrative positions at CCHMC, including chairman of the Professional Practice Evaluations Committee (PPEC), president of the Medical Executive Committee (MEC), and clinical director of CCHMC Liberty Campus (a satellite CCHMC location). Since 2012, defendant Daniel von Allmen, M.D., has occupied several administrative positions at CCHMC, including member of the PPEC, member of the MEC, and Surgeon-In-Chief. Plaintiff's tenure with CCHMC coincided with that of Abubakar Atiq Durrani (Durrani). Durrani completed a fellowship at and was later employed by CCHMC in the department of pediatric orthopedic surgery until his resignation in 2008. During that time, Durrani was a top biller and generated significant revenue for CCHMC. Eventually, however, hundreds of medical malpractice lawsuits were filed against Durrani, many of which also named CCHMC as a defendant. Durrani was also criminally investigated and indicted. In December 2013, Durrani absconded to Pakistan.

Beginning in 2006, plaintiff grew concerned about Durrani's medical treatment and care, based in part on two patients who experienced unusual spinal cord complications that required follow-up surgery. Plaintiff began reporting his concerns to CCHMC administrators and other employees. Eventually plaintiff brought his concerns to CCHMC peer review meetings and the Division Director for Orthopedics. His concerns did not lead to action regarding Durrani. Aside from Durrani plaintiff also raised quality of care, negative customer service reports, and deficient surgery support issues with CCHMC executives.

A patient first filed a lawsuit against Durrani and CCHMC in 2008. In 2009 and 2011, two other Durrani patients filed lawsuits and each sought plaintiff's deposition in October 2011 and November 2012. In the midst of these lawsuits, in October 2012, the PPEC raised concerns about plaintiff's behavior relative to operating room personnel-plaintiff's first ever issue with the PPEC during his tenure with CCHMC. As a result, plaintiff agreed to undergo counseling with a psychologist.

In May 2013, federal agents interviewed plaintiff relative to their criminal investigation of Durrani, culminating in Durrani's August 9, 2013 indictment. In the days and weeks following the indictment, CCHMC administrators and PPEC members met with plaintiff regarding what they characterized as “abusive conversations, demeaning comments, and insulting comments” with and to surgery staff in the orthopedic and urology departments. (Doc. 1, PAGEID 14 at ¶ 60).

Between late 2013 and 2015, many former Durrani patients filed lawsuits (more than 80 of which also naming CCHMC as a defendant) and requested to depose plaintiff through CCHMC's counsel. CCHMC's counsel did not notify plaintiff of these requests. During this time period, plaintiff's PPEC reprimands increased significantly.

On February 22, 2018, attorney Frederick Johnson moved to compel plaintiff's deposition in “all [CCHMC] cases on the issue of [CCHMC's] liability.” (Id., PAGEID 16 at ¶ 71). Around the same time, plaintiff met with CCHMC's counsel and secured his own counsel. On March 23, 2018, the PPEC placed plaintiff on a performance improvement plan, warning that plaintiff would be referred to the MEC absent his cooperation. Believing this discipline to be in retaliation for his voiced concerns regarding Durrani and subsequent cooperation with the Durrani civil litigation and criminal investigation, plaintiff notified CCHMC of the same through counsel on March 28, 2018.

On June 15, 2018, plaintiff testified by deposition under subpoena against CCHMC. Less than two weeks later, Dr. Ruddy notified plaintiff that CCHMC would extend plaintiff's full, unrestricted clinical privilege for only six months as opposed the prior norm of two years. On December 18, 2018, plaintiff testified under subpoena in another Durrani-related lawsuit naming CCHMC. On December 19, 2018, a jury awarded over two million dollars to the plaintiff in that case. On December 20, 2018, the PPEC met with plaintiff and instructed him to continue job coaching and raised a new issue regarding a surgery consult (plaintiff allegedly disagreed in an argumentative way with the treatment recommendation from the pediatric neurosurgery department).

In September 2020, plaintiff raised concerns over patient safety-acknowledging in retrospect that he “could have used more polite language.” (Doc. 1, PAGEID 19 at ¶ 84). This resulted in plaintiff agreeing to periodic counseling. Notwithstanding the fact that this discipline was already in place, on September 18, 2020, [3] CCHMC suspended plaintiff for two weeks. This suspension caused plaintiff to reschedule surgeries, left a permanent mark on plaintiff's record with the State of Ohio Medical Board, and prevented plaintiff from accepting certain referrals. Plaintiff filed this lawsuit on October 16, 2020, alleging claims of retaliation under the False Claims Act (FCA), 31 U.S.C. § 3730(h) (Count I), wrongful disciplinary action in violation of Ohio's public policy (Counts II-IV), breach of contract and the duty of fair dealing (Count V), tortious interference with business relationship (Count VI), intentional infliction of emotional distress (Count VII), and negligent infliction of emotional distress (Count VIII).

II. Standard of Review

In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations as true and make reasonable inferences in favor of the non-moving party. Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012) (citing Harbin-Bey v. Rutter, 420 F.3d 571, 575 (6th Cir. 2005)). Only “a short and plain statement of the claim showing that the pleader is entitled to relief” is required. Id. (quoting Fed.R.Civ.P. 8(a)(2)). [T]he statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Id. (internal quotation marks omitted) (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)). Although the plaintiff need not plead specific facts, the [f]actual allegations must be enough to raise a right to relief above the speculative level” and to “state a claim to relief that is plausible on its face.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). “A plaintiff must ‘plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

III. Analysis

A. Immunity

Defendants argue that, as a threshold matter, they are immune from plaintiff's claims under both federal and Ohio laws regarding professional peer review. Relatedly, they argue that plaintiff's allegations admit that he was disciplined in the context of peer review (i.e., the PPEC and MEC committees). Plaintiff argues in response that federal law sets forth only immunity from damages, not suit. With respect to Ohio law, plaintiff argues that his complaint alleges actual malice that overcomes any presumption of immunity.

1. Health Care Quality Improvement Act (HCQIA), 42 U.S.C. § 11101 et seq.

The HCQIA was enacted to improve a perceived declining quality of medical care through effective professional peer review. Reyes v. Wilson Mem'l Hosp., 102 F.Supp.2d 798, 808 (S.D. Ohio 1998). Under the statute, persons participating in a professional review action[4] “shall not be liable in damages under any law of the United States or of any State (or political subdivision thereof) with respect to the action” if the action is taken:

(1) in the reasonable belief that the action was in the furtherance of quality health care,
(2) after a reasonable effort to obtain the facts of the matter,
(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and
(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).
A professional review action shall be presumed to have met the preceding standards necessary for the protection set out in section 11111(a) of this title unless the presumption is rebutted by a preponderance of the evidence.

Id. at §§ 11111(a), 11112(a).[5] In effect, plaintiff bears the burden of proving that a peer review process was not reasonable.” Moore v. Rubin, No 2001-T-0150, 2004 WL 2803237, at *4 (Ohio Ct. App. 2004) (quoting Bryan v. James E. Holmes Reg'l Med. Ctr., 33 F.3d 1318, 1333 (...

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