Lo v. Provena Covenant Medical Center

• Decision Date: 31 July 2003
• Docket Number: No. 4-03-0175.,4-03-0175.
• Citation: 342 Ill. App.3d 975,796 N.E.2d 607,277 Ill.Dec. 521
• Parties: Adolf LO, M.D., Plaintiff-Appellee, v. PROVENA COVENANT MEDICAL CENTER, a Corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

796 N.E.2d 607

342 Ill. App.3d 975

277 Ill.Dec. 521

Adolf LO, M.D., Plaintiff-Appellee, v. PROVENA COVENANT MEDICAL CENTER, a Corporation, Defendant-Appellant.

No. 4-03-0175.

Appellate Court of Illinois, Fourth District.

Argued June 19, 2003.

Decided July 31, 2003.

As Modified Upon Denial of Rehearing September 19, 2003.

Stephen R. Swofford, Nancy G. Lischer (argued), Peter G. Panno, Daniel P. Slayden, Hinshaw & Culbertson, Chicago, for Provena Covenant Medical Center.

Thomas J. Pliura (argued), LeRoy, Michael W. Rathsack, Chicago, for Adolf Lo, M.D.

Saul J. Morse, Robert John Kane, Illinois State Medical Society, Springfield, for Amicus Curiae, Illinois State Medical Society.

MODIFIED UPON DENIAL OF REHEARING

Justice APPLETON delivered the opinion of the court:

Plaintiff, Adolf Lo, is a physician and a member of the medical staff of defendant, Provena Covenant Medical Center, a licensed hospital. Defendant summarily suspended plaintiff's clinical privilege to perform open-heart surgery, allegedly because an independent peer review had identified problems in his open-heart surgeries and he had expressed an intention to perform more such surgeries without the precautionary measure on which defendant had insisted: direct supervision by another cardiac surgeon. Plaintiff sued defendant for breach of contract, and the trial court entered an order temporarily restraining defendant from suspending any of plaintiff's clinical privileges.

Defendant appeals on three grounds: (1) defendant's decision to summarily suspend plaintiff's clinical privilege violated no bylaw and, therefore, the trial court lacked authority to review the decision; (2) under federal and state law and defendant's bylaws, defendant had ultimate authority over its medical staff, including the authority, on its own initiative, to suspend clinical privileges of a physician who posed an imminent risk of harm to patients; and (3) plaintiff failed to establish the requisites for a temporary restraining order. Because the summary suspension violated no bylaw, we reverse the trial court's judgment.

I. BACKGROUND

Defendant's owner, Provena Hospitals, has adopted the "Bylaws of Provena Covenant Medical Center Local Governing Board[,] Urbana, Illinois" (hospital board's bylaws), which provide as follows:

"Section 1.1—Authorization. The board of directors of PROVENA HOSPITALS has authorized the establishment of a Local Governing Board (`Hospital Board') to have such authority and responsibilities with respect to the governance of the day to day business and affairs of Provena Covenant Medical Center (`Hospital') as are set forth in these bylaws and as the PROVENA HOSPITALS Board may from time to time delegate. * * *

* * *

Section 4.1—Delegated Authority. The Hospital Board has been delegated authority and responsibility by the PROVENA HOSPITALS Board, for the following functions * * *:

* * *

(h) To serve as the official governance mechanism of the Hospital to its Medical Staff and to act on recommendations from the Hospital's Medical Staff, to include but not limited to * * * clinical privileges * * *.

(i) To maintain a liaison with the Hospital's Medical Staff by including the president of the Medical Staff as an ex-officio director of the Hospital Board in order to promote favorable working relationships and exchange information for the improvement of patient care.

* * *

Section 8.1—Medical/Dental Staff Responsibilities. The Hospital Board shall, in the exercise of its discretion, delegate to the Medical/Dental Staff the responsibility for providing appropriate professional care to all patients of the Hospital, as well as the authority to carry out the designated responsibilities.

The Medical/Dental Staff of the Hospital shall make recommendations to the Hospital Board concerning all matters set forth in the Medical/Dental Staff bylaws and all additional matters referred to it by the Hospital Board.

Section 8.2—Medical/Dental Staff Bylaws. There shall be bylaws * * * for the Medical/Dental Staff setting forth its organization and governance. Proposed bylaws * * * may be recommended by the Medical/Dental Staff, which shall only become effective upon the adoption thereof by the Hospital Board.

Section 8.3—Quality of Care Monitoring. The Hospital Board shall require the Medical/Dental Staff to implement activities and mechanisms for monitoring and evaluating the quality of patient care, for identifying opportunities to improve patient care, and for identifying and resolving problems or deficiencies, and shall regularly report to the Hospital Board on these matters.

* * *

Section 8.5—Delegated Powers. * * * In all applicable matters, this Article is subject to the policies of PROVENA HOSPITALS, including, but not limited to, ensuring compliance with State of Illinois license requirements[ ][and] Joint Commission on Accreditation of Health Care Organizations * * *."

Pursuant to section 8.2 of the hospital board's bylaws, the medical staff recommended bylaws, which the hospital board adopted. The medical staff's bylaws provide:

"[I]t is recognized that the medical staff is responsible for the quality of medical care and must accept and discharge this responsibility, subject to the ultimate authority of the medical center board of directors * * *. * * *

* * *

ARTICLE 3.

PURPOSES

The purposes of this organization [(the medical staff)] are:

* * *

3.3 to serve as the primary means for accountability to the [defendant's] Board of Directors for the appropriateness of the professional performance * * * of its members * * * and to strive towards the continual improvement of the quality and efficiency of patient care delivered in the Medical Center * * *.

3.4 to provide a means through which the Medical Staff may participate in the policymaking and planning processes of the Medical Center * * *.

* * *

ARTICLE 8.

CORRECTIVE ACTION

8.1 Procedure

8.1.1 Any person may provide information to the medical staff about the conduct, performance, or competence of its members. Whenever reliable information indicates that the activity or professional conduct of any member of the Medical Staff is considered to be lower than the standards of the Medical Staff, detrimental to public safety or disruptive to the delivery of quality patient care, corrective action against such practitioner may be requested by any officer of the Medical Staff, by the chair of any clinical department, by the chair of any standing committee of the Medical Staff, by the Chief Executive Officer, or by the Board of Directors. All requests for corrective action shall be made to the Executive Committee in writing, and shall be supported by reference to the specific activities or conduct which constitute the grounds for the request.

* * *

8.2 Summary Suspension

8.2.1 Whenever action must be taken immediately to prevent imminent danger to an individual, the chair of a department, the President of the Medical Staff, an officer of the Medical Staff, or the Chief Executive Officer upon the recommendation of any one of those aforementioned, is authorized to summarily suspend the Medical Staff membership status or all, or any portion, of the clinical privileges of a practitioner. * * *

8.2.2 A practitioner whose clinical privileges have been summarily suspended shall be entitled to the procedural rights set forth in Article 9 of these Bylaws * * *."

The parties agree that the above-quoted bylaws of the hospital board and medical staff were in force when defendant summarily suspended plaintiff's clinical privilege to perform open-heart surgery.

Defendant first became concerned about its cardiovascular-surgery program when reviewing patients' statistics from January 2000 to May 2001. Plaintiff was one of two cardiovascular surgeons on the medical staff. For the cardiovascular-surgery program as a whole (that is to say, for the two surgeons' combined efforts), the mortality rate was 7%, the rate of return to surgery after cardiovascular surgery was 13.1%, and the rate of readmission into the hospital within 30 days after cardiovascular surgery was 19.3%. The mortality rate of plaintiff's patients was 5.3% for 2000, 5% for 2001, and 5% for 2002. By contrast, during the same period, the national rate of mortality for open-heart surgery was 3% for 2000 and 2.3% for 2001.

Because of the allegedly high rates of mortality and complications, defendant contracted with a team of independent consultants to review defendant's cardiovascular-surgery program and report their findings. In its report, the "peer-review team" identified problems with plaintiff's cardiovascular surgeries. According to a letter to plaintiff from the chairperson of defendant's board of directors, "the report raised grave concerns about quality, far more concerns than any of us had anticipated."

Defendant began a dialogue with plaintiff to come up with mutually acceptable remedial measures. (Plaintiff disputed the validity and significance of the statistics or that there was any problem with his cardiovascular surgeries.) Defendant asked plaintiff to come up with an action plan, and plaintiff delayed doing so. For several months, the parties wrangled over an "action plan." Finally, plaintiff consented to perform cardiovascular surgery only under the direct supervision of either of two named cardiac surgeons affiliated with Carle Clinic. He thereafter performed some cardiovascular surgeries under supervision. Later, he withdrew his consent to supervision, because he thought defendant was imposing "inappropriate and stringent requirements" on the cardiac surgeon supervising his surgeries, namely, that the supervisor must see the patient before surgery, remain throughout surgery, and see the patient after surgery. Plaintiff notified defendant that he had scheduled an open-heart surgery and would perform it without supervision.

Alarmed by that announcement, defendant's president and chief executive officer, Diane Friedman, sought a...