Shahbabian v. Trihealth, Inc.
| Decision Date | 22 July 2021 |
| Docket Number | 1:18-cv-790 |
| Court | U.S. District Court — Southern District of Ohio |
| Parties | SET SHAHBABIAN, M.D., Plaintiff, v. TRIHEALTH, INC., et al., Defendants. |
The parties to this lawsuit are all medical entities. Plaintiff Set Shahbabian, M.D., is a neurosurgeon. Defendants TriHealth, Inc., and TriHealth G, LLC, d/b/a TriHealth Physician Partners (collectively, TriHealth) are part of a health system based in Cincinnati, Ohio. Defendant Mayfield Clinic, Inc., is a physician group that provides brain and spine care at most Cincinnati hospitals, including ones that are affiliated with TriHealth. These parties have each filed a motion for summary judgment (Docs. 136, 137, and 138). Their three motions have been fully briefed and are now ripe for the Court's review.
Dr Shahbabian set up an independent solo practice in 1985. (Shahbabian Dep. 14, Doc. 181 at Pg. ID 13148.) For many years, he primarily exercised surgical privileges at Good Samaritan Hospital. Good Samaritan is a TriHealth facility. (Oliphant Dep. 50, Doc. 165 at Pg. ID 10988.) By one account he performed half of the neurosurgical cases at that hospital. (Kerlakian Dep. 33, Doc. 175 at Pg. ID 12526.)
TriHealth and Mayfield had an agreement to work together to oversee the quality of TriHealth's neuroscience program. Under that agreement, Mayfield physicians served on TriHealth's quality assurance and peer review programs. (PI. Ex. 20, Doc. 153-13 at Pg. ID 9024, 9051.) It also established a panel of physicians who would work at certain hospitals, like Good Samaritan. (Farrington Dep. 100, Doc. 153 at Pg. ID 8842.) One of those physicians, Andrew Ringer, M.D., a Mayfield doctor, served as the section chief of neurosurgery and chief of neurosciences at Good Samaritan. (Ringer Dep. 10-11, Doc. 171 at Pg. ID 11594-95.)
Good Samaritan used its quality review process to review, among other things, complications that arose during surgery. That process works like this: A nurse Clinical Quality Specialist reviews patient records according to pre-established criteria. The nurse flags quality of care concerns, like unexpected complications or excessive blood loss. After the nurse's review, the Section Chief and Department Head reviews the patient's chart. That person might close the case, or send a Letter of Inquiry to the physician, asking questions about the quality of care provided. The physician's responses become part of the file. If the review process continues, the Quality Assurance Committee ("QAC" or "Quality Committee") reviews the matter. Each department has its own QAC. And each QAC has a head. The heads of all the QACs comprise the Patient Care Committee ("PCC"). After review by the QAC, the PCC oversees and either affirms or rejects the results of the departmental QACs recommendations. (Koselka Dep. 71, Doc. 173 at Pg. ID 12232.) The Quality Review process either results in a closed case or the assignment of a Case Weight (or Case Level) of 1, 2, or 3. Case Weight 1 is an "improvement opportunity." Case Weight 2 is "at risk behavior." And Case Weight 3 is "reckless behavior or recurrent at-risk behavior." (Doc. 137 at 3 fn. 7.) A physician may appeal a negative Case Weight. (Shahbabian Dep. 127, Doc. 181 at Pg. ID 13261.)
Dr. Shahbabian's surgical outcomes triggered recurring quality review-investigations. For instance, in December 2009, a patient was scheduled for operation on the C5-C6 level of the spine. But Dr. Shahbabian operated on the C6-C7 level. Afterwards, he proceeded to operate on the scheduled level. This resulted in a Case Weight 1. (Shahbabian Dep. 119, Doc. 181 at Pg. ID 13253; Def. Ex. 40, Doc. 164-2 at Pg. ID 10715-18.) On another occasion, after a November 2011 surgery, Dr. Shahbabian's patient suffered paralysis and later died. The PCC assigned a Case Weight 3. (Shahbabian Dep. 130, Doc. 181 at Pg. ID 13264; Def. Ex. 46, Doc. 164-3 at Pg. ID 10719-27.) And, in January 2013, Dr. Shahbabian received a Case Weight 2 for a patient's excessive blood loss. (Shahbabian Dep. 133, Doc. 181 at Pg. ID 13267; Def. Ex. 48, Doc. 164-4 at Pg. ID 10728-33.)
The "demands of the business end of things were getting to him," according to Dr. George Kerlakian, based on conversations he had with the doctor. (Kerlakian Dep. 44, Doc. 175 at Page ID 12537.) Throughout his career, Dr. Shahbabian operated on four hours of sleep. (Shahbabian Dep. 220-21, Doc. 181-1 at Page ID 13354-55.) Once, in January 2014, he fainted in the operating room. (Id. at 143, Doc. 164-1 at Pg. ID 10676.) His annual salary had been declining. (Id. at 52, Doc. 181 at Pg. ID 13186.) His patients worried about who would see them after he retired. (Id. at 250, Doc. 181-1 at Pg. ID 13384.) He attempted to persuade younger doctors to join him as solo practitioners to divide office expenses. No. one did. (Id. at 33, Pg. ID 13167-72; 13175-76.)
So, at 70 years old, he began negotiating an employment contract with TriHealth. (Id. at 195, Pg. ID 13329.) The employment agreement ("the Agreement") they eventually agreed upon provided for a five-year term, beginning on May 1, 2014, Neither party had any obligation to the other after five years. (Id. at 55, Pg. ID 13188-89.) In addition to securing his employment, TriHealth bought his solo practice and assumed all of its obligations, including personnel, invoicing, and facility maintenance. (Id., at 48, Page ID 13182; Def. Ex. 3, Doc. 181-2 at Page ID 13523; Doc. 186-10.)
The Agreement provided Dr. Shahbabian with an annual income of $968, 000 for completing a baseline production of 24, 207 work Relative Value Units, or wRVUs. (Shahbabian Dep. 59, 285, Doc. 181-1 at Pg. ID 13193, 13419; Doc. 181-2 at Pg. ID 13663.) wRVUs measure the value of the procedures that physicians perform. (Ringer Dep. 57, Doc. 171 at 11641.) The Agreement also gave him a three-year period of income protection, up to April 30, 2017. That meant that, even if he did not meet his wRVU standard, his salary was protected. After that three-year period, if he failed to meet his wRVU production requirement, he would be paid according to the wRVUs he generated. (Oliphant Dep 51-52, Doc. 165 at Page ID 10989-90.)
Quality of care concerns continued after he started working for TriHealth. In the spring of 2015, he received three separate Case Weight 3s for "reckless behavior." The Quality Committee defines "reckless behavior" as "a behavioral choice to consciously disregard a substantial or unjustifiable risk that breaches the practitioner's duty to the patient." (E.g., Doc. 164-6 at Page ID 10792.) The first Case Weight 3 was for his repeated use of an improper antibiotic. (Def. Ex. 55, Doc. 164-6, Page ID 10740-46; 164-12 at Page ID 10875.) The second was for failing to seek additional physician assistance when complications arose and for failing to use a microscope. (Def. Ex. 56, Doc. 164-6 at Page ID 10766.) The third was related to the absence of securing lumbar drain placement before the patient's operation. (Def. Ex. 57, Doc. 164-6 at Page ID 10792.) He had the right to appeal these decisions under applicable bylaws, but he did not do so. (Shahbabian Dep. 148, Doc. 181 at Page ID 13282.)
Based on the Quality Committee's findings, Dr. Shahbabian received a formal plan of correction. The correction plan changed certain areas of his surgical practice. It limited his daily surgical block to six hours. The Neurosurgery Section Chair would conduct preoperative reviews of his intra-cranial cases. He would no longer perform spinal decompression cases exceeding three levels, multi-level fusions, or revisions. And, when issues arose during an operation, he would have to consult an associate neurosurgeon. (Id. at 63, Pg. ID 13198; Def. Ex. 17, Doc. 181-2 at Page ID 13670.) This formal correction plan went into his peer review file. (See handwritten note at id.)
Shortly after he received the correction plan, Dr. Shahbabian negotiated an amended employment agreement ("Amended Agreement") with TriHealth. (Shahbabian Dep. 63, Doc. 181 at Pg. ID 13197.) The Amended Agreement took the correction plan's restrictions into account. (Id.) He signed it in July 2015. (Def. Ex. 17, Doc. 181-2 at Pg. ID 13668.) His required wRVU production rate decreased to 11, 700, but his salary remained the same. (Def. Ex. 18, Doc. 181-2 at Pg. ID 13673; Def. Ex. 19, Doc. 181-2 at Page ID 13677; Shahbabian Dep. 63, Doc. 181 at Pg. ID 13197.)
By Fall 2016, TriHealth was anticipating that a succession plan for Dr. Shahbabian's patients might be necessary. Dr. Zachary Tempel was identified as a possible replacement for some of Dr. Shahbabian's patients. (PL Ex. 223, Doc. 152-45, Pg. ID 8412; PL Ex. 62, Doc. 153-29, Pg. ID 9119.) During a conversation (which he recorded) with Dr. Robert Collins and Dr. Kerlakian on October 31, 2016, Dr. Shahbabian advised that he had "more than enough" surgical cases. (Doc. 181-3 at Page ID 13831; Shahbabian Dep. 245, Doc. 181-1 at Page ID 13379.) He said that, after May 2017, he would "slow down" and" [Mayfield] can take over at that point." (Doc. 181-3 at Pg. ID 13833; Shahbabian Dep. 247, Doc. 181-1 at Pg. ID 13381.) They asked if he wanted to "start a process where we actually decrease your operative experience," with Dr. Shahbabian staying on to help with other tasks such as teaching residents. (Doc. 181-3 at Pg. ID 13833; Shahbabian Dep. 247, Doc. 181-1 at Pg. ID 13381.) He liked the prospect of teaching residents, but noted that things were more complicated with his office - he would have to gradually work until May 2019. (Doc. 181-3 at Pg. ID 13833.)
Not long after that meeting, Dr. Shahbabian's treatment of a...
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