Rees v. Intermountain Health Care, Inc., 890170
| Decision Date | 26 March 1991 |
| Docket Number | No. 890170,890170 |
| Citation | 808 P.2d 1069 |
| Parties | J. Richard REES, M.D., Plaintiff and Appellee, v. INTERMOUNTAIN HEALTH CARE, INC., dba McKay-Dee Hospital, Defendant and Appellant. |
| Court | Utah Supreme Court |
Charles W. Dahlquist, II, Merrill F. Nelson, Salt Lake City, for defendant and appellant.
Ronald E. Nehring, Thomas J. Erbin, Salt Lake City, for plaintiff and appellee.
Defendant Intermountain Health Care ("IHC") appeals a jury verdict in favor of plaintiff for breach of contract by termination of elective heart surgery privileges at McKay-Dee Hospital, one of defendant's facilities in Ogden, Utah. Defendant claims that plaintiff voluntarily waived his elective surgery privileges at an informal peer review meeting and that the jury verdict is not supported by the evidence.
Plaintiff J. Richard Rees, M.D., was granted privileges to perform both emergency and elective cardiac surgery at McKay-Dee Hospital ("McKay-Dee") in 1971. In 1975, Dr. Rees was a member of an ad hoc committee formed for the purpose of conducting a long-term review of the quality of the heart surgery program at the hospital. The committee concluded that two of the three heart surgeons, Dr. Rees and one other surgeon, had excessive complication and mortality rates compared with national standards.
As a result of the review, the hospital imposed a temporary moratorium on heart surgery in 1980, and Dr. Rees agreed to obtain further training at another hospital. Upon completion of the additional training, Dr. Rees returned to McKay-Dee and resumed emergency and elective heart surgery.
In 1982, the ad hoc committee again became concerned with Dr. Rees's high complication and mortality rates for cardiac surgery. Statistics showed that between 1976 and 1981, among Dr. Rees's patients, nineteen out of sixty-three died, resulting in a 30.16 mortality rate. Consequently, the hospital was notified that its only certified perfusionist and the anesthesiologists would no longer work with Dr. Rees.
On September 8, 1982, the hospital's internal affairs committee met at Dr. Rees's request to review his position with regard to elective heart surgery at the hospital. The committee presented a number of alternatives to Dr. Rees, including his temporarily assisting another cardiac surgeon. Dr. Rees, with counsel present, stated that he would consider the alternatives.
No further action was taken until February 10, 1983, when the ad hoc heart review committee met to discuss the risk-based statistics. Dr. Rees was present with counsel when his record was reviewed and he was presented with an ultimatum to terminate his elective cardiac surgery informally or it would be done formally through due process procedures contained in the hospital bylaws. Dr. Rees was given one week to submit his written decision.
Dr. Rees did not respond within the prescribed one-week period, but the matter was not pursued until the middle of April, when Dr. Rees's counsel phoned the hospital administrator, requested a meeting, and stated that he was ready to "work something out" informally. The apparent reason for the delay in responding to the ultimatum was that Dr. Rees was pursuing a job opportunity in Lander, Wyoming, and did not want to disclose his loss of elective surgery privileges in the application process.
On April 27, 1983, the requested meeting was held. Those present included Dr. Rees; H. Gary Pehrson, hospital administrator; Richard White, M.D., president of the medical staff; William Daines, M.D., medical director; and Richard Alder, M.D., chief of the surgery department. The purpose of the meeting was to specify the types of surgery Dr. Rees would be allowed to perform. He was informed that he could continue to perform emergency cardiac surgery and procedures involving the great vessels of the chest but that he was not to perform elective cardiac surgery.
Dr. Rees apparently neither verbally agreed nor objected to the limitation of his practice at the meeting. IHC offered evidence at trial that all four of its representatives assumed or were under the impression that Dr. Rees's elective cardiac surgery privileges had been voluntarily relinquished.
Dr. Rees did not dispute his limitation of privileges until June 23, 1983, almost two months after the meeting, apparently after the job opportunity in Lander, Wyoming, did not materialize. When he asserted the right to perform elective surgeries, he was informed that those privileges had been relinquished.
Dr. Rees subsequently commenced this action, claiming that his right to perform elective cardiac surgery was revoked without due process. He filed a motion for preliminary injunction to enjoin the hospital from refusing his exercise of elective surgery privileges. McKay-Dee filed two separate motions for summary judgment: first, claiming immunity from civil suit arising out of the peer review process under the bylaws of the corporation and under the doctrine of equitable estoppel, and second, claiming immunity based solely upon statute. All motions were denied, and the matter went to trial.
On January 31, 1989, a jury trial began wherein the jury rendered a special verdict in favor of Dr. Rees. The jury found that he did not voluntarily relinquish his elective surgery privileges and that he was damaged in the amount of $150,000. The trial court entered judgment on the verdict and ordered that Dr. Rees be reinstated to his former full privilege status.
McKay-Dee presents four issues on appeal: (1) whether the jury verdict in favor of Dr. Rees is supported by the evidence; (2) whether the trial court erred in ruling that Dr. Rees is not equitably estopped to deny that he voluntarily relinquished his elective heart surgery privileges; (3) whether the trial court erred in ruling that McKay-Dee is not immune from liability arising out of the peer review process; and (4) whether the jury award of $150,000 is supported by the law and the evidence.
IHC first claims that the jury verdict was not supported by the evidence. When reviewing jury verdicts, we view the evidence in a light most favorable to the findings of the jury and uphold the verdict so long as there is competent evidence to sustain it. 1
In the instant case, the facts are essentially undisputed. The focal point is the April 27, 1983 meeting. IHC claims that Dr. Rees voluntarily terminated his elective cardiac surgery privileges at the meeting. In contrast, Dr. Rees claims that the sole purpose for the meeting was to ascertain which surgical procedures he could undertake without provoking the hospital administration, not to voluntarily terminate his privileges or waive his due process rights. The jury verdict, in essence, came down to a question of credibility.
It is apparent from the record that IHC's representatives assumed or were under the impression that Dr. Rees had voluntarily terminated his elective cardiac surgery privileges. Affidavits and answers to interrogatories filed before trial unequivocally stated that Dr. Rees had voluntary terminated his privileges. At trial, however, the testimony of the IHC representatives was much more guarded.
Mr. Pehrson testified as follows:
Q Now, Doctor, in March of 1986, I took your deposition. And when I took your deposition, sir, you testified at that point that neither you nor Dr. White nor Dr. Alder ever heard Dr. Rees say that he was giving up his privileges at that meeting, isn't that right?
A Yes.
....
Q So at some point all of you at the meeting knew that you were operating under what was at most an assumption that Dr. Rees had given up his privileges, right?
A Right.
Q And despite having changed the position from one of certainty to assumption, you still didn't offer him a fair hearing, did you?
A No.
Dr. White testified as follows:
Q Now, Doctor, the issue of voluntary relinquishment never came up at the April 27th meeting, did it?
A I suspect these words weren't used, no.
Q No, they weren't used. And you assumed that despite the fact it wasn't talked about, and despite the fact that Dr. Rees didn't say he was giving up his privileges, that you nevertheless could assume it, right?
A Yes, because we presented him with what privileges we felt he should be allowed to continue.
Throughout the preliminary discovery and hearings, Dr. Rees consistently maintained that he did not voluntarily relinquish his elective cardiac surgery privileges. He does not dispute the fact, however, that he remained silent during the April 27 meeting despite the fact that the hospital intended to limit his privileges. He maintains that the conclusion of the group was that he would give notice to the hospital if he intended to schedule elective cardiac surgery.
Viewing the evidence in a light most favorable to the jury verdict, 2 we conclude that there is competent evidence to sustain the jury verdict that Dr. Rees did not acquiesce in the limitation of his cardiac surgery privileges and that he was denied due process in contravention of the bylaws of the hospital. 3
IHC's next claim is that Dr. Rees voluntarily waived his right to due process and is therefore estopped to assert those rights.
A. Waiver
We have stated that "[a] waiver is the intentional relinquishment of a known right" 4 and that "[m]ere silence is not a waiver unless there is some duty or obligation to speak." 5 The questions, then, are whether Dr. Rees's actions at the April 27 meeting and thereafter were consistent with waiver and whether he had a duty or obligation to speak or defend himself at the meeting.
Dr. Rees was aware, at the April 27 meeting, that the hospital intended to limit his elective cardiac surgery privileges. 6 He testified as follows:
Q You listened to the proposals of the hospital people in the meeting?
A Yes.
Q Did you understand their proposals to have been made in the context of voluntary relinquishment of your privileges?
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