Plummer v. Community General Hosp.

• Decision Date: 31 December 2002
• Docket Number: No. COA97-191.,COA97-191.
• Citation: 573 S.E.2d 596,155 NC App. 574
• Court: North Carolina Court of Appeals
• Parties: Charles W. PLUMMER, M.D., Plaintiff v. COMMUNITY GENERAL HOSPITAL OF THOMASVILLE, INC., Allegiant Physician Services, Inc., and Premiere Anesthesia, Inc., Defendants.

573 S.E.2d 596

155 NC App. 574

Charles W. PLUMMER, M.D., Plaintiff v. COMMUNITY GENERAL HOSPITAL OF THOMASVILLE, INC., Allegiant Physician Services, Inc., and Premiere Anesthesia, Inc., Defendants.

No. COA97-191.

Court of Appeals of North Carolina.

December 31, 2002.

Ronald Barbee, Greensboro, for plaintiff-appellant.

Horton and Gsteiger, P.L.L.C. by Elizabeth Horton, Winston-Salem, for defendant-appellee Community General Hospital of Thomasville, Inc.

EAGLES, Chief Judge.

Charles W. Plummer, M.D. ("Dr. Plummer") appeals from order granting Community General Hospital of Thomasville, Inc.'s ("Hospital") motion to dismiss for failure to state a claim and expiration of the statute of limitations. After careful consideration of the briefs and record, we affirm.

The Hospital granted Dr. Plummer medical staff privileges in anesthesiology in 1983. The Hospital "reappointed [Dr. Plummer] to the medical staff" in 1984, 1986, 1988, 1990, and 1992 "with full medical staff privileges in anesthesiology." In December 1990, the "Hospital entered into a three year contract with Triad Anesthesia Associates, P.A. [("Triad")], to provide anesthesiology services to the patients at [the Hospital]." The contract could be terminated by either party upon ninety days notice. Dr. Plummer had formed Triad and was its sole shareholder. Triad employed Dr. Plummer as an anesthesiologist.

On or about 23 March 1993, the Hospital gave Triad notice that the contract would be terminated effective 23 June 1993. Dr. Plummer stated in his pleadings that "[w]hile the contract with [Triad] was terminated by Defendant Hospital, [Dr. Plummer] still continued to have full medical staff privileges at the said Hospital with full privileges in anesthesiology."

The Hospital then contracted with Premiere Anesthesia, Inc. ("Premiere") (subsequently d/b/a Allegiant Physician Services, Inc. ("Allegiant")) for Premiere exclusively to provide anesthesiology services to the Hospital. Premiere hired one of Triad's former anesthesiologists but did not offer employment to Dr. Plummer.

On 16 July 1993, Dr. Plummer requested a hearing before the Hospital's Executive Committee of the medical staff which was denied. Dr. Plummer requested a hearing from the Hospital's Board of Directors on 17 August 1993 which was also denied.

On 20 June 1996, Dr. Plummer commenced this action against the Hospital, Allegiant and Premiere. Dr. Plummer alleged breach of contract, misrepresentation, and negligence against the Hospital and intentional interference of contract against Allegiant and Premiere.

On 8 August 1996, the Hospital moved to dismiss pursuant to Rule 12(b)(6) alleging Dr. Plummer's failure to state a claim and expiration of the statute of limitations. On 27 September 1996, Allegiant and Premiere filed a Rule 12(b)(6) motion to dismiss for failure to state a claim. The motions were heard before Judge H.W. Zimmerman, Jr. at the 21 October 1996 Civil Session of Davidson County Superior Court. The trial court granted the Hospital's Rule 12(b)(6) motion to dismiss for failure to state a claim and expiration of the statute of limitations. By separate order filed 21 October 1996, the trial court granted Allegiant and Premiere's Rule 12(b)(6) motion to dismiss. Plaintiff appealed from both orders on 28 October 1996.

On or about 29 October 1996, Allegiant filed a petition in bankruptcy under Chapter 11 of the United States Bankruptcy Code in the Northern District of Georgia. The bankruptcy court issued an automatic stay of all proceedings against Allegiant. Subsequently, this Court entered a stay of the appeal based on the pending Chapter 11 proceeding. Based on documents before this Court, it appeared that the bankruptcy proceedings concluded and by order dated 21 February 2002, this Court lifted its stay.

On appeal, Dr. Plummer contends that the trial court erred in granting the Hospital's Rule 12(b)(6) motion to dismiss for failure to state a claim and expiration of the statute of limitations. The Hospital cross-assigned error to the trial court's refusal to admit in evidence the Hospital's Bylaws at the hearing on the Rule 12(b)(6) motion. After careful consideration, we affirm.

First, Dr. Plummer argues that the trial court erred in allowing defendant's Rule 12(b)(6) motion to dismiss for failure to state a claim. Plaintiff argues that the Hospital's Bylaws became a part of his contract with the Hospital pursuant to Virmani v. Presbyterian Health Services Corp., 127 N.C.App. 71, 488 S.E.2d 284, disc. review denied, 347 N.C. 141, 492 S.E.2d 38 (1997). Dr. Plummer argues that the Hospital's exclusive contract with Premiere to provide anesthesiology services "adversely affected [his] right as an active medical staff member ... to have clinical privileges at the Hospital in the field of anesthesiology." Dr. Plummer argues that because it effectively terminated his medical staff privileges, he was entitled to notice and a hearing as provided by the Hospital's Bylaws. We disagree.

To determine whether a complaint is sufficient to survive a Rule 12(b)(6) motion to dismiss, the court must ascertain "`whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.'" Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C.App. 217, 225, 517 S.E.2d 406, 413 (1999) (citations omitted). Pursuant to Rule 12(b)(6), a complaint should be dismissed "`if no law exists to support the claim made, if sufficient facts to make out a good claim are absent, or if facts are disclosed which will necessarily defeat the claim.'" Id. (citations omitted).

Although we have not located any North Carolina decision addressing this issue, there are several relevant cases from other jurisdictions. In Garibaldi v. Applebaum, 194 Ill.2d 438, 252 Ill.Dec. 29, 742 N.E.2d 279, 280 (2000), the Illinois Supreme Court addressed "what procedural rights, if any, a physician has under hospital bylaws when a hospital enters into an exclusive contract with a competing group of physicians for the performance of the same work as the physician performs." There, at the time of the hospital's entry into the exclusive contract, the bylaws stated in pertinent part that:

Actions which limit, reduce, suspend or revoke membership or clinical privileges of a practitioner on the staff of the Hospital or revoke staff membership shall be deemed to be adverse to the practitioner and shall entitle the practitioner to notice and the hearing and appeal procedures as provided in Article VIII. These actions include:

* * *

(2) Reduction, suspension or revocation of clinical privileges and/or admitting privileges;

* * *

(4) Suspension or revocation of specific clinical privileges or Staff membership;

(5) Other similar actions.

Such actions constitute a recommendation by the Executive Committee to the Governing Body.

Id. at 281. The court stated that "[a]lthough the practical effect of that decision may be to curtail or even eliminate a practitioner's ability to exercise his or her privileges at the particular facility, the hospital's decision does not also signify that it has reduced or terminated the practitioner's privileges under its bylaws." Id. at 285. The court noted that the plaintiff failed "to distinguish between his privileges and his ability to exercise those privileges in a `closed' environment." Id.

In Holt v. Good Samaritan Hospital & Health Center, 69 Ohio App.3d 439, 590 N.E.2d 1318, 1319 (1990), the plaintiff alleged that his medical staff privileges were revoked without the benefit of a hearing when the hospital did not renew his company's contract to provide emergency room services and entered into an exclusive contract with another health care provider to provide those services. The Ohio Court of Appeals in Holt held that the physician was not...