W.S.K. v. M.H.S.B.

Decision Date10 March 2010
Docket NumberNo. 71A03-0903-CV-106.,71A03-0903-CV-106.
Citation922 N.E.2d 671
PartiesW.S.K., Appellant-Plaintiff, v. M.H.S.B., Appellee-Defendant.
CourtIndiana Appellate Court

Patrick F. Mastrian III, Brown, Tompkins, Lory & Mastrian, Indianapolis, IN, Attorney for Appellant.

N. Kent Smith, Christopher C. Eades, Kimberly A. Emil, Hall, Render, Killian, Heath & Lyman, Indianapolis, IN, Attorney for Appellee.

OPINION

FRIEDLANDER, Judge.

W.S.K. appeals a grant of summary judgment in favor of M.H.S.B. in a multi-count complaint against M.H.S.B. stemming from that facility's denial of his application to join its medical staff.1 In his complaint, W.S.K. sought recovery under seven separate theories and did not prevail on any of them, as the trial court entered summary judgment against him on all counts. Upon appeal, W.S.K. challenges the trial court's ruling with respect to only three of those theories, including discrimination, defamation, and breach of contract. W.S.K. presents the following restated issues for review2:

1. Did the trial court err in entering summary judgment against W.S.K. on his claim for race discrimination?

2. Did the trial court err in concluding that federal and state statutes confer immunity upon M.H.S.B. from W.S.K.'s claims and did M.H.S.B. accord W.S.K. due process in reviewing his application?

3. Did the trial court err in entering summary judgment against W.S.K. with respect to his claim of defamation?

4. Did the trial court err in entering summary judgment against W.S.K. with respect to his breach-of-contract claim?

5. Did the trial court err in granting in part and denying in part M.H.S.B.'s motion to strike certain materials designated by W.S.K. in opposition to summary judgment, including a deposition statement made by Dr. Rafat Ansari, deposition statements and an affidavit submitted by Dr. Maureen Ziboh, and in granting W.S.K.'s motion to strike an affidavit submitted by Carolyn Nemes?

We affirm.

The facts and procedural history in this case are lengthy. We will set them out in detail, as they are critical to the issues presented. W.S.K. is an oncologist/hematologist. In July 1999, he commenced employment with Elkhart Memorial Clinic (Elkhart Clinic) and in August 1999, he obtained hospital privileges at Elkhart General Hospital (EGH). W.S.K. became a member of Elkhart Clinic "two or three years" later. Appellant's Appendix at 1048. EGH's Medical Staff Quality Improvement Committee (the Quality Committee) documented the following complaints or incidents involving W.S.K. in 2000:

April 19—Failure to assess critical pt admitted from ED at 0830 with Hgb of 5.4. Did not arrive until 1500.

July 12—Late to established family meetings or didn't show up at all.

July 25—Failure to respond to pages in a pt with neutropenic fever[.]

August 2—Ordered bone marrow biopsy for 1600, lab present and waiting. Arrived at 1730-pt transfer to nursing home delayed due to time of day, an additional 1 day LOS.

August 3—Left Oncology unit without ordered [sic] pain meds for a pt and the [sic] did not return pages from the nurse; left floor without ordering x-rays for a pt for whom [sic] he told he would order it.

September 5—Dr. Pletcher wrote an order that Dr. W.S.K. was to follow his patients until 9/5. There were no orders on the chart for those three days and no visits documented in the progress notes since Sept. 2nd.

September 6—D. W.S.K. was primary physician on case—last documented visit was 9/3.

September 7—generalized [sic] complaints about a delayed discharge and family/pt perceptions.

September 8—Hospice Coordinator and Manager both upset with behavior of physician toward staff and treatment of patient.

September 18—From Lab to Nursing Director—having problems with meeting the needs of Dr. W.S.K. in the assisting of bone marrows. Schedules with the lab and then doesn't arrive until hour(s) later, or reschedules them and the same thing happens.

September 21—Confrontation on the Oncology unit between Dr. Pletcher and Dr. W.S.K. regarding confusion on who was covering patients on the unit. Dr. Pletcher stated the on-call physician covers the ED patients, but they are each supposed to cover their inpatients.

September 21—It is "noticed" that other physicians are increasingly frustrated with Dr. W.S.K.

September 25—Issues with bone marrow biopsies again—orders delayed by several hours due to non-response to pages (1830 to 2300).

October 2—Oncology Nurse approached Nursing Director very upset with concerns that she had several bad experiences with physician not listening to her.

Id. at 419-20.

The same report noted that on December 1, 2000, a letter was sent to W.S.K. inviting him to attend the next Quality Committee meeting to discuss the issues of timely responses to pages, meetings with patients and families, and attitude toward the staff. Another complaint against W.S.K. was documented on December 13, 2000, this one stating, "case management staff frustrated with families being upset about interactions with Dr. W.S.K." Id. at 420. The following notation appeared, dated December 19, 2000: "Appeared at MSQIC meeting. Encouraged to increase teamwork, emphasize a team approach on the unit, and improve communication. Physician agreed that he would try to respond more timely, and consider having a Physician Extender help him." Id.

In 2001, the Quality Committee documented at least six additional complaints lodged against W.S.K. concerning the issues of failing to respond to pages and a lack of diligence in keeping scheduled appointments or fulfilling obligations in a timely manner. There were three documented entries in 2002 involving W.S.K.'s failure to respond to pages. In 2003, the Quality Committee documented the following entries:

February 3—Using abbreviations not approved. Referred to Medical Record Committee.

February 11—MSQIC form[3] completed—W.S.K. paged numerous times without response.

March 24—Incident report and MSQIC form completed by ED. Patient needed to be admitted, but W.S.K. had not called in orders yet. Patient eventually signed out AMA.

June 4—W.S.K. gave a telephone order for intrathecal chemotherapy. Oncology Policy states verbal orders are not acceptable for cytotoxic agents.

June 27—MSQIC form completed— rudeness to staff nurse in front of patients—demeaning and belittling her, then refusing to acknowledge her presence in room.

August 16—MSQIC form completed by Outpatient Surgery. W.S.K. scheduled 0730 case with Dr. Kibiloski for iliac access for bone marrow. Tried to page W.S.K. 7 times ("911) [sic] from 0720 to 742. Finally returned call at 0752. Case cancelled. Patient very upset. Dr. Kibiloski very upset. Physician stated he "forgot".

September 9—Incident report completed by Surgical Services for unresponsiveness to pages from Dr. M. Thomas. Paged several times until returned call 30 minutes later. Surgical case delayed, then cancelled.

Id. at 417 (footnote supplied).

On July 1, 2003, Terri Hilyard, the vice president of nursing, met with W.S.K. to discuss "growing concerns with the relationship between the nursing staff on the oncology unit and him and specifically regarding his interactions involving one nurse." Id. On July 10, 2003, Hilyard met with W.S.K. again after attending a July 3 meeting at which "the staff, without exception, all felt vehemently that they were very frustrated with him" especially with respect to his treatment of the nurse mentioned by Hilyard at the July 1 meeting. Id. W.S.K. indicated to Hilyard that he was willing to work on a plan to improve his communication and interaction with the nurses. According to the report, however, "after multiple calls by [name blanked out] to set this up, he either was not available, or didn't prefer to have the subsequent meetings." Id. at 418.

Moving forward to 2004, the Quality Committee documented three more incidents where an MSQIC form was completed because W.S.K. failed to respond to pages, one of which involved a 911 page. On March 24, an MSQIC form was completed upon the following grounds: "[P]atient's daughter noticed a `No Code' sticker at bedside and stated they had not agreed to that. [S]he wanted to be a full code. Nurse notified Dr. W.S.K. who stated to tell the patient she would be a `no code' tonight and can talk to him in the morning." Id. at 416. On June 5 and 6, the Quality Committee documented the following:

Alleged falsification of records. Physician did not round on patients all day on Saturday, 6/5 (did do "telephone" rounds with nurses), nor on Sunday, 6/6 until approximately 7:40 pm. Dr. Mellin had spoken with Dr. W.S.K. on Saturday morning and clarified that [W.S.K.] would see his patients on Saturday. Subsequently, Dr. Mellin personally checked the charts the next morning (Sunday) for physician orders or progress notes—neither of which were [sic] found. On Monday morning, 6/7, upon inspection of the charts, progress notes were found to be dated for 6/5, including physician assessment findings. There was no indication of a late entry or phone assessment.

Id.

On April 20, 2004, the Quality Committee sent a written notification to W.S.K. asking him to review the two most recently filed MSQIC forms, i.e., the failure to respond to a 911 page and the "no code" incident mentioned above, and to file a written response thereto. Quality Committee records indicate that the chairman of the committee spoke with W.S.K. on May 18 and reminded him of the need to file a written response to the April 20 request. W.S.K. still had not filed a written response as of May 25, by which time another MSQIC form had been filed reporting that W.S.K. had failed to respond to a 911 page. Thus, on May 25, 2004, the Quality Committee sent a letter to W.S.K. asking him to appear at a June 15 Quality Committee meeting "due to no response." Id.

Minutes of the June 15 meeting reflect that W.S.K. had filed a written response on June 14 and appeared at the meeting. With respect to the availability issue, W.S.K. "stated that he is...

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