Samuel v. Herrick Memorial Hospital, 99-1462

• Decision Date: 09 June 1999
• Docket Number: No. 99-1462,99-1462
• Parties: (6th Cir. 2000) Donald R. Samuel, M.D., Plaintiff-Appellee, v. Herrick Memorial Hospital, Lenawee Health Alliance, Dr. Laurie Barkway, David Hickman, Dr. Michael Sammarco, Michael Mihora, John Robertstad, Harold Easton and Linda Yielding, Defendants-Appellants. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 830

201 F.3d 830 (6th Cir. 2000)

Donald R. Samuel, M.D., Plaintiff-Appellee, v. Herrick Memorial Hospital, Lenawee Health Alliance, Dr. Laurie Barkway, David Hickman, Dr. Michael Sammarco, Michael Mihora, John Robertstad, Harold Easton and Linda Yielding, Defendants-Appellants.

No. 99-1462

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 9, 1999

Decided and Filed: January 18, 2000

Appeal from the United States District Court for the Eastern District of Michigan at Ann Arbor, No. 99-60140--George C. Steeh, District Judge.

John W. Schmieding, Bloomfield Hills, MI, Elaine A. Parson, Robert A. Maxwell, DENISON & MAXWELL, Bloomfield Hills, Michigan, for Appellee.

David A. French, MILLER, CANFIELD, PADDOCK & STONE, Ann Arbor, Michigan, for Appellants.

Before: MERRITT, DAUGHTREY, and MOORE, Circuit Judges.

OPINION

MERRITT, Circuit Judge.

This appeal from a grant of a preliminary injunction concerns the suspension of staff privileges to plaintiff, Donald Samuel, M.D., an obstetrician/gynecologist, by defendant Herrick Memorial Hospital. After Herrick Memorial suspended plaintiff's staff privileges, he moved the district court for a preliminary injunction enjoining the suspension. The district court granted the injunction, thereby reinstating plaintiff's privileges with certain conditions. Defendants appealed the grant of the injunction to this Court. This Court stayed enforcement of the injunction by order dated May 14, 1999. The case comes to our panel from the motions docket and we heard oral argument on the motion to stay. For the reasons that follow, we now vacate the injunction and remand the case to the district court for further proceedings.

I.

Plaintiff is an African-American physician with a private practice in Tecumseh, a small community between Toledo, Ann Arbor and Detroit. He attended medical school in Toledo and completed his residency in obstetrics and gynecology at a hospital in Michigan. He set up a practice in Texas and, in 1990, he was recruited by Herrick Memorial to be its staff OB/GYN because Tecumseh did not have one in the community. In 1992, plaintiff set up a private practice, with financial backing by Herrick Memorial, and he was extended staff privileges at Herrick Memorial. In 1996 he became Chief of Staff at the hospital.

In 1996, defendant Lenawee Health Alliance purchased Herrick Memorial and nearby Emma Bixby Memorial Hospital, the only two hospitals in Tecumseh, and runs them under a joint operating agreement. Plaintiff was a vigorous opponent of this joint venture and claims that the hospital has been trying to drive him out ever since. After the purchase, Lenawee Health Alliance started looking for another OB/GYN, despite plaintiff's protests that the area could not support another OB/GYN. Over that protest, defendant Dr. Sammarco, who is white, was hired as the staff OB/GYN at Herrick Memorial.

In October 1998 one of plaintiff's patients died from hemorrhaging after a caesarean delivery. The death was plaintiff's first maternal death in 10 years of practice. After the death, the hospital required him to consult with another physician, in this case Dr. Sammarco, the only other OB/GYN at Herrick Memorial, upon admitting a patient to the hospital. This monitoring arrangement went on for four months, during the pendency of the hearing process required by the hospital's bylaws, and continued until this Court stayed enforcement of the injunction and reimposed the suspension of privileges in May at the request of defendants.

The hospital's Ad Hoc Hearing Committee held a hearing on January 27, 1999, at which two physicians testified as to plaintiff's competence and stated that plaintiff was not to blame for the death. On February 3, 1999, the Ad Hoc Hearing Committee recommended to the Medical Executive Committee that the monitoring be discontinued pending the results of an external review to be conducted by the American College of Obstetricians and Gynecologists. The Medical Executive Committee rejected the Ad Hoc Committee's recommendation and the monitoring requirement continued.

In February 1999, three reviewers from the American College of Obstetricians and Gynecologists conducted an on-site review of Herrick Memorial's obstetrics unit, at the hospital's request. One reviewer was the Director of Medical Education in the Department of Obstetrics and Gynecology at Children's Hospital in Buffalo, New York, and another, an African-American, was from the Department of Obstetrics and Gynecology at the University of Chicago. The third reviewer was a medical writer and computer specialist. The review included interviews with staff members and a review of some of plaintiff's case charts, although the reviewers knew plaintiff only as "Physician A."

At the exit interview with hospital staff, the independent reviewers issued a preliminary report recommending that plaintiff undergo a six-month, intensive training program at the residency level before he be allowed to continue the practice of medicine. On March 4, 1999, based on the reviewers' preliminary report given at the exit interview, the Executive Committee recommended suspension of plaintiff's privileges pending his completion of a six-month remedial course in obstetrics/gynecology in a program approved by the Executive Committee. Plaintiff had thirty days to apply for such a program. Failure to comply with these conditions would result in termination of his privileges.

The next day, March 5, 1999, plaintiff filed a complaint alleging discrimination on the basis of race, antitrust violations and state law tort and contract claims. Plaintiff also moved for a preliminary injunction to lift the suspension, which was granted in part by the district court with instructions to defendants to institute monitoring procedures for plaintiff instead of suspending his privileges. Specifically, the complaint alleges (1) violations of 42 U.S.C. § 1981 based on defendants' interference with Samuel's business contracts and expectancies based on race (Count I), (2) that defendants acted in concert to revoke his staff privileges and eliminate OB/GYN competition within Lenawee County in violation of the Sherman Antitrust Act, 15 U.S.C. §§ 1 et seq. (Count II), (3) a state law claim of tortious interference with business expectancy and relationships (Count III), (4) existence of a civil conspiracy among defendants to (a) unreasonably restrain plaintiff from practicing medicine, (b) interfere with contracts with patients and (c) discriminate based on race (Count IV), (5) defamation regarding statements about plaintiff's ability to practice medicine and his mental health (Count V), (6) a violation of the due process rights of reasonable notice and a hearing prior to the deprivation of his property interest to practice medicine (Count VI).

After a hearing held March 8, the district court granted the preliminary injunction in part and ordered continuation of the monitoring process. On March 15, defendants filed a motion for dismissal of the complaint or summary judgment. At a hearing held March 16, the district court ordered continuation of the monitoring process.

On April 14, 1999, the court dismissed the defamation (Count V) and due process (Count VI) claims pursuant to Rule 12(b)(6), but refused to dismiss the other claims or to grant defendants' motion for summary judgment, noting that it believed the state law claim for tortious interference to be the strongest claim. In a separate order issued the same day, the district court granted the preliminary injunction in part, because (1) it found that plaintiff had some possibility of succeeding on the merits with regards to his tortious interference with business expectations claim and (2) it found that plaintiff would be irreparably injured in his medical career by the suspension. The district court ordered that the monitoring remain in place to ensure the safety of the community. On April 26, 1999, the district court denied a stay of the injunction pending appeal. At a May 3 status conference, the district court approved the monitoring plan proposed by plaintiff, which called for plaintiff to confer telephonically with several doctors in other hospitals on each admission. Defendants did not offer any counterproposal regarding monitoring and maintained that any monitoring was unsatisfactory and unethical in light of the magnitude of plaintiff's alleged deficiencies.

Defendants appealed the denial of the stay of the injunction pending appeal and filed an interlocutory appeal of the denial of their summary judgment motion. This Court stayed enforcement of the injunction, thereby reimposing the suspension of plaintiff's staff privileges at the hospital, but also set the appeal on an expedited basis.

II.

When ruling on a motion for preliminary injunction, the district court considers four factors: (1) whether the movant is likely to prevail on the merits; (2) whether the movant would suffer irreparable injury if the court does not grant the injunction; (3) whether a preliminary injunction would cause substantial harm to others and (4) whether a preliminary injunction would be in the public interest. Glover v. Johnson, 855 F.2d 277, 282 (6th Cir. 1988). We review the district court's determination under an abuse of discretion of standard. Id.

Likelihood of Success on the Merits

We agree with the district court that there is minimal evidence in the record to demonstrate a likelihood of success on the merits of plaintiff's claims. Order Granting Preliminary Injunction at 13 n.2 ("Plaintiff has not argued, at least not with any serious conviction, that any of his other claims [other than the tortious interference claim] are likely to succeed on the merits."). The facts alleged in the complaint are barely adequate to survive a motion to dismiss on the federal discrimination and antitrust claims, although after more discovery it may be possible for plaintiff to adduce...