State Com'n on Human Relations v. Suburban Hosp., Inc., 424

• Decision Date: 01 September 1996
• Docket Number: No. 424,424
• Citation: 686 A.2d 706,113 Md.App. 62
• Parties: STATE of Maryland COMMISSION ON HUMAN RELATIONS, v. SUBURBAN HOSPITAL, INC. ,
• Court: Court of Special Appeals of Maryland

Page 62

113 Md.App. 62

686 A.2d 706

STATE of Maryland COMMISSION ON HUMAN RELATIONS, v. SUBURBAN HOSPITAL, INC.

No. 424, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Dec. 26, 1996.

Lee D. Hoshall, Assistant General Counsel (Glendora C. Hughes, General Counsel, on the brief), Baltimore, for appellant.

Pamela J. Moore, Morristown (Littler, Mendelson, Fastiff, Tichy & Mathiason, Morristown, S. Allan Adelman and Godard, West & Adelman, Rockville, on the brief), for appellee.

Argued before CATHELL, DAVIS, and EYLER, JJ.

DAVIS, Judge.

The Maryland Commission on Human Relations (Commission) filed a complaint for injunctive relief pursuant to Maryland Code (1957, 1994 Repl. Vol), Article 49B, § 4. The Commission sought to prohibit appellee Suburban Hospital (Suburban) from voting to revoke the hospital staff privileges of Dr. Carol Bender, and from taking "any further actions to terminate, suspend or restrict" her privileges, until a hearing on the merits of an interlocutory injunction or until the conclusion of administrative proceedings pertaining to Dr. Bender's charge of unlawful sex discrimination under the Maryland Fair Employment Practices Act (FEPA), Article 49B, §§ 14 et seq. The administrative charges are currently pending before the State Office of Administrative Hearings. The circuit court denied the request without a hearing by its

order of February 21, 1996. That same day, the Commission noted its appeal. On appeal, the parties present the following questions for our review:

I. Is the issue of the denial of ex parte relief moot?

II. Is review of the interlocutory relief issue moot?

III. Did the circuit court abuse its discretion in refusing to issue an ex parte injunction?

IV. Should the Commission's request for review of a denial of interlocutory injunctive relief be denied because the circuit court did not rule on a request for interlocutory relief?

V. Did the circuit court abuse its discretion in refusing to issue an interlocutory injunction? ¹

We answer the first and fourth questions in the affirmative, and the second in the negative. We address the fifth question in order to avoid a second appeal to this Court, and do not reach the third question. Accordingly, we dismiss the appeal.

FACTS

Beginning in 1977, Dr. Carol Bender has practiced general internal medicine in Rockville. For most of this period, she has held medical staff privileges at Suburban Hospital, enabling her to admit patients and to provide medical treatment while they are hospitalized. She has also provided coverage for other physicians with privileges at Suburban. As a result of the circumstances surrounding the controversy before us, Dr. Bender no longer holds staff privileges at the hospital. She still maintains a separate office practice and admitting privileges at Shady Grove Hospital.

Suburban follows the unusual practice of encouraging patients and staff at the hospital to complete reports on any negative incident involving a staff member. Reports on a particular individual's behavior are placed in his or her permanent Dr. Bender has accumulated what no one disputes is a rather thick file of these "incident reports," dating from 1981. An exhaustive list of the reports is unnecessary here, but most of them concern Dr. Bender's interpersonal interaction with other doctors, nurses, other medical personnel, and patients, rather than her clinical performance or skills as a physician. Specifically, most of the reports accused her, inter alia, of making rounds in casual attire and bringing her children to work, of engaging in rude, profane, and abusive behavior toward other doctors, nurses, and patients, and of openly criticizing, in an abusive manner, the care provided to her patients by other doctors or staff. Following discussions with hospital administrative personnel about some of these incidents, Dr. Bender accumulated no more reports in her file for three years after 1988. Three reported incidents in 1991 and 1992, however, provoked the Suburban Hospital Credentials Committee to review her application for reappointment to the active staff of the hospital for the years 1993-94.

file. Affidavits submitted to the circuit court reveal that this practice is highly unusual, even unique, among area hospitals.

At the center of the dispute on the merits, aside from the issues central to this appeal, is the motive for Suburban's actions taken in response to the incident reports. The Credentials Committee, in a meeting held January 28, 1993, voted to require Dr. Bender to undergo a psychiatric evaluation at the hospital's expense, by a psychiatrist of the hospital's choice, as a condition precedent to reappointment. Dr. Bender agreed to an examination, and the examining psychiatrist, Dr. William E. Flynn, submitted his report on March 10, 1993. In the report, Dr. Flynn diagnosed no psychiatric illness, but concluded that Dr. Bender was "a person who has not developed a sensitivity to the reactions of her coworkers and therefore does not attempt to control her own responses to frustration." Dr. Flynn recommended that the Credentials Committee require Dr. Bender to undergo psychotherapy "aimed at insight and behavior change," at her own expense. A consultant should evaluate Dr. Bender's progress Dr. Bender refused to undergo the counseling and therapy. Instead, she filed a charge of sex discrimination with the Commission, claiming the hospital was singling her out because of her gender. The foundation for her allegations consisted of the alleged triviality of the incidents reported, as well as reports of disruptive behavior on the part of male doctors among the staff at Suburban which had gone, Dr. Bender asserted, largely ignored and unpunished. In support of her arguments, Dr. Bender produced affidavits in the circuit court from several witnesses attesting that several male doctors have been extremely rude and abrasive to patients and staff, have used foul language, and have dressed casually and brought their children to the hospital with them on their rounds, all without serious consequences to the doctors. One of the affidavits came from one such male doctor. Another affidavit came from a nurse at Suburban.

                semi-annually, and should Dr. Bender refuse treatment or should therapy not produce favorable results, Dr. Flynn concluded, the Credentials Committee should impose sanctions. 2  After a personal interview with Dr. Bender in a special meeting held on April 15, 1993, the Credentials Committee submitted its recommendation to the Executive Committee.  It adopted Dr. Flynn's advice that Dr. Bender should be reappointed provided she undergo behavioral counseling and therapy aimed at improving her interpersonal interactions.  Suburban's Medical Staff Executive Committee adopted the recommendation of the Credentials Committee on May 4, 1993
                

Simultaneously, Dr. Bender sought review of Dr. Flynn's recommendation through the peer review process contained in the Medical Staff By-Laws for Suburban. Because of scheduling difficulties, the peer review hearings did not begin until January 1994. The peer review Hearing Committee, after eight days of testimony spaced over seven months, affirmed the recommendation of the Executive Committee on January In the intervening two years between the Executive Committee's recommendation (based upon Dr. Flynn's psychiatric evaluation) and the decision of the Hearing Committee, there were no reports of behavioral problems on the part of Dr. Bender. Based upon this development, the Executive Committee recommended on April 7, 1995 that Dr. Bender be reappointed without the requirement of behavioral counseling, provided that she agreed to release Suburban and everyone associated with Suburban from "any claims she might have, including claims relating to sex discrimination, as [a] result of any events which have transpired to date." Dr. Bender agreed to this condition at first, but for reasons both unclear and irrelevant, later changed her mind. She informed the Executive Committee, through her attorney, that "as a result of the fact that she has no executed agreement, [Dr. Bender] hereby withdraws her previous settlement offer."

26, 1995, recommending, however, that Dr. Bender merely undergo "behavioral counseling" rather than therapy.

Based on this new position, the Suburban Medical Staff Executive Committee reconsidered its earlier reappointment recommendation. Finding its earlier recommendation of behavioral counseling "reasonable and appropriate," it concluded that further efforts by the hospital to resolve the situation would prove unproductive. On May 4, 1995, the Executive Committee recommended, by a vote of twelve to four, that the Board of Trustees not reappoint Dr. Bender to the Medical Staff. An agreement authorizing the Commission to conduct an investigation into the matter forestalled further action, however. It also gave Suburban an opportunity to respond to Dr. Bender's challenge of sex discrimination, in exchange for Suburban's agreement to maintain Dr. Bender's staff privileges until the Commission's investigation had concluded.

Pursuant to its agreement, the Board of Trustees of Suburban issued a temporary extension of Dr. Bender's privileges, which would expire on February 29, 1996. On November 15, 1995, after an investigation into the matter, the Commission issued a finding of probable cause that sex discrimination had occurred. In its written findings, the Commission determined On February 19, 1996, two days before the Board of Trustees was to vote on Dr. Bender's application for reappointment, the Commission filed a Complaint for Ex Parte and Interlocutory Injunctive Relief in the circuit court, along with a proposed order, which was denied on February 21, 1996. On that day, the Board met as scheduled and denied Dr. Bender's application for reappointment. As of February 26, 1996, Dr. Bender has not been affiliated with Suburban.

                that male

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