Wilkey v. Hull

• Decision Date: 03 February 2009
• Docket Number: Case No. 1:07-cv-160.
• Parties: Keith D. WILKEY, Plaintiff, v. Greg HULL, Esq. and Millikin & Fitton L.P.A., Defendants.
• Court: U.S. District Court — Southern District of Ohio

598 F.Supp.2d 823

Keith D. WILKEY, Plaintiff, v. Greg HULL, Esq. and Millikin & Fitton L.P.A., Defendants.

Case No. 1:07-cv-160.

United States District Court, S.D. Ohio, Western Division.

February 3, 2009.

COPYRIGHT MATERIAL OMITTED

Eric C. Deters, Attorney at Law, Independence, KY, F. Dennis Alerding, Covington, KY, for Plaintiff.

John William Hust, Michael Edward Maundrell, Cincinnati, OH, for Defendants.

ORDER

SANDRA S. BECKWITH, Senior District Judge.

Before the Court is Defendants' motion for summary judgment. (Doc. 67) Plaintiff opposes the motion (Doc. 70) and Defendants have replied. (Doc. 75)

Both parties filed voluminous pleadings along with a large number of exhibits.¹ The Court will not attempt to summarize all of the material in the record, but will discuss the facts and arguments presented as they are relevant to the dispositive issues raised in the motion.

FACTUAL BACKGROUND

Dr. Keith Wilkey is an orthopedic surgeon, formerly on the professional staff of the McCullough-Hyde Memorial Hospital in Oxford, Ohio. The hospital's Medical Executive Committee ("MEC") summarily suspended his staff privileges on February 5, 2003 based upon the recommendation of the Bylaws and Credentials Committee. The latter committee met on February 4 to discuss questions pertaining to two of Dr. Wilkey's recent surgeries. The committee sought an external physician's review of those cases, and noted concerns about Dr. Wilkey's surgical patient selection, and his "disruptive behavior involving reckless handling of equipment and extreme anger and frustration." (Exhibit G, Minutes of February 4 meeting.)² The committee recommended a summary suspension and further investigation, which the MEC imposed the next day. The hospital requested the external review on February 6, using a third-party referral source to locate a physician. (Exhibit M)

An Ad Hoc Fact-Finding committee of hospital physicians met with Wilkey on February 12. The summary of this meeting states that the main point of discussion was the tone and tempo in the operating room. (Exhibit N) The Ad Hoc committee recommended that the summary suspension be continued based upon the external reviewer's initial comments on the two surgical cases, staff perceptions about Wilkey's admitted problem in controlling his frustration, and concerns about his truthfulness. The initial external review of the two surgical cases was done by Dr. Seasons, who is not affiliated with the hospital.

In a subsequent meeting of the Ad Hoc Committee and Wilkey on February 26, Wilkey questioned Dr. Seasons' qualifications, wanting assurances that he was an active spine surgeon. Wilkey disagreed with Seasons' negative comments on his quality of care, and about his lack of chart documentation on the two cases. Seasons stated that the charts did not contain adequate documentation of important pre- and post-surgical care, some of which was apparently the result of Wilkey's practice of writing notes in his own office files, rather than including the material in the hospital's chart. (See Exhibit R) The group then discussed the ongoing concerns about Wilkey's behavior, concerns Wilkey also disputed.

The MEC met again on March 5, 2003 to consider Wilkey's suspension. According to the minutes, the committee chair expressed three concerns for consideration: Wilkey's lack of honesty, his patient treatment issues, and his disruptive behavior. Since Seasons' opinion was subject to dispute, the committee believed it would not be fair to Wilkey to base a suspension on Seasons' opinion. The committee was concerned, however, about Wilkey's failure to fully document his cases, and about his honesty concerning his previous experience and the extent of his privileges at another nearby hospital. The MEC recommended that Wilkey's suspension be continued for 60 days to permit additional investigation. (Exhibit S) The hospital apparently conducted interviews with a number of surgical and operating room staff in March 2003, and Wilkey procured his own external physician reviews to refute Seasons' report.

The Ad Hoc Committee met on April 9. They discounted the opinions of Wilkey's external reviewers, and noted that a similar lack of documentation described by Seasons existed in other charts for Wilkey's patients that the committee members had themselves reviewed. (Exhibit V) Wilkey met with the Ad Hoc Committee again on April 22. The minutes of that meeting state that the majority of the discussion was about Wilkey's lack of proper documentation in hospital charts, and about his inappropriate conduct with staff. Wilkey was aware of the fact that the hospital was obtaining a second external review from a Dr. Ricciardi; Wilkey was given a copy of Ricciardi's resume and told that his report was not yet complete. Wilkey also presented his own experts' reviews to the Ad Hoc committee. (Exhibit U) On April 29, the hospital sent Wilkey's office notes to Dr. Ricciardi. (Exhibit W)

On April 30, the Ad Hoc Committee made its final recommendation to the MEC, that Wilkey's privileges should be revoked. (Exhibit Y) Their written recommendation states that Dr. Ricciardi's report is not finished, but the committee believed it did not need that report in order to recommend revocation. The committee's own review of several of Wilkey's charts found the same lack of proper documentation that Seasons noted. Wilkey apparently believed it was permissible for him to record information in his office chart, and he disagreed with the hospital's charting policies.

The MEC met the same day (April 30) to review the Ad Hoc Committee's recommendation. Wilkey was present at this meeting with his lawyer. He specifically asked about Ricciardi's report, and was informed that it was not finished. The MEC minutes state that Wilkey's patient care techniques and inadequate documentation are of concern, but that the MEC considered Wilkey's behavior to be unacceptable. The MEC voted to revoke Wilkey's privileges, and informed him that he was required to request an appeal hearing within 40 days. (Exhibits Z, 4/30/03 Minutes, and Exhibit X, letter to Wilkey.)

Just before the April 30 meeting, attorney Greg Hull was retained to represent the MEC. Hull did not attend the April 30 meeting, but soon thereafter was actively involved in Wilkey's internal appeal of his suspension and of the recommended revocation.

It is fair to say that Wilkey and the hospital sharply disagreed about the hospital's reasons for suspending and then revoking Wilkey's privileges. Wilkey alleged that a competitor on the staff wanted him fired, and that the hospital resented his complaints about outdated operating room equipment and about improvements which had been promised but not performed, allegedly due to the hospital's budget problems. There were disagreements between the parties and their respective attorneys about scheduling hearings, the evidence that would be used at those hearings, and about the composition of the hearing panels. The record reflects that Wilkey's attorneys (primarily David Andrews) frequently talked and corresponded with Hull concerning these and other disagreements between their respective clients.

For instance, Wilkey demanded that a separate appeal hearing be held on the hospital's suspension decision. Only when that process was final would Wilkey agree to a second, separate hearing on the hospital's revocation decision. The hospital agreed to conduct two separate hearings, but would not agree to permit Wilkey to exhaust his internal appeal rights before considering his appeal of the revocation. (The final arbiter of such decisions is the hospital's Board of Directors.) Wilkey also insisted that the evidence for the suspension hearings be limited to that available to the MEC at the time the decision was made. Hearings on the suspension were finally held in September 2003, and the decision was apparently upheld by the hearing panel.

On November 20, 2003, Wilkey's attorney Andrew wrote to Hull in response to Hull's request for dates for the revocation hearing. In the letter, Wilkey objects to the chosen dates and to the composition of the hearing panel. He also requests the hospital to produce a list of the evidence that was used by the Ad Hoc Committee and by the MEC in reaching their decisions, including the identification of the charts that were sent to Dr. Ricciardi, along with his report and any correspondence with him. Wilkey also asked the hospital to identify staff members who had been interviewed, and for copies of transcripts of those interviews. (Exhibit EEE) Hull responded on November 21 rejecting most of Wilkey's requests. Regarding the charts sent to Dr. Ricciardi, Hull states that Wilkey has had copies of those charts for several months, as they were sent to his own external reviewers. Hull also stated: "However, as you well know, the (MEC)'s decision to recommend revocation of Dr. Wilkey's medical staff privileges and membership was not based upon those five cases, anyway." (Exhibit P)

In the meantime, the Board of Directors considered Wilkey's appeal of his suspension. The record is not entirely clear about the result. Wilkey alleged in a complaint filed in state court (which is discussed more fully below) that a Board Committee recommended that the suspension hearing be re-convened to allow Dr. Wilkey to present evidence and to examine witnesses who made negative statements about him. (Exhibit FFFF at § 20).³ In any event, the MEC was proceeding with the revocation appeal hearing, which was scheduled for March 8, 2004. A hearing referee, local attorney Patrick Garrettson, was appointed to preside over this hearing as he had over the suspension hearings. A few days before the hearing, Wilkey filed a complaint in state court, seeking an injunction to postpone the hearing. His pleadings cite the November 2003 exchange of letters between Andrew and Hull, and allege that both the hospital "and its counsel" refused to...