Wojewski v. Rapid City Regional Hosp.

• Citation: 2007 SD 33,730 N.W.2d 626
• Decision Date: 28 March 2007
• Docket Number: No. 23954.,23954.
• Parties: Paul A. WOJEWSKI, M.D., Plaintiff and Appellant, v. RAPID CITY REGIONAL HOSPITAL, INC., Charles Hart, M.D., and Robert Glenn Allen, Jr., M.D., Defendants and Appellees.
• Court: Supreme Court of South Dakota

730 N.W.2d 626

2007 SD 33

Paul A. WOJEWSKI, M.D., Plaintiff and Appellant, v. RAPID CITY REGIONAL HOSPITAL, INC., Charles Hart, M.D., and Robert Glenn Allen, Jr., M.D., Defendants and Appellees.

No. 23954.

Supreme Court of South Dakota.

Argued January 9, 2007.

Decided March 28, 2007.

Michael P. Reynolds of Barker Reynolds Law Firm L.L.C., Rapid City, South Dakota, and Kenneth E. Barker of Barker Reynolds Law Firm L.L.C., Belle Fourche, South Dakota, Attorneys for appellant, Sara Wojewski, Special Administrator for Estate.

Daniel G. Wilczek, Daniel M. Lovejoy of Faegre & Benson L.L.P., Minneapolis, Minnesota, and Marvin D. Truhe, Rapid City, South Dakota, Attorneys for appellees.

SABERS, Justice.

[¶ 1.] After Rapid City Regional Hospital (RCRH) removed Dr. Paul Wojewski's (Wojewski) clinical privileges, Wojewski¹ sued on a variety of theories.² The circuit court granted RCRH's³ motions to dismiss on one claim and its motion for summary judgment on the rest of the claims. Wojewski appealed. We affirm.

FACTS

[¶ 2.] Wojewski was a cardiothoracic surgeon who joined the medical staff of RCRH in 1988. In the summer of 1996, Wojewski started to exhibit unusual behavior. He suffered a manic episode in July of 1996, where he was arrested and underwent inpatient psychiatric treatment. Two months later, he suffered another manic episode.

[¶ 3.] He was diagnosed with bipolar disorder, and in September of 1996, took a leave of absence from RCRH. That same month he requested reinstatement to the RCRH medical staff. RCRH reinstated Wojewski, with conditions, after reviewing four psychiatric reports. Wojewski met all the conditions of his reinstatement and all conditions were removed in January 1999.

[¶ 4.] In June 2003, Wojewski had another manic episode. According to RCRH, Wojewski did not inform it of his manic episode. Instead, he took a voluntary leave of absence in July 2003, after informing the hospital of "his difficulties."

[¶ 5.] Wojewski returned to RCRH on August 12, 2003. His privileges were subject to conditions, including a requirement that he inform RCRH of any changes in his mental health. Dr. James Oury was appointed to monitor Wojewski.

[¶ 6.] When Wojewski returned to RCRH, several individuals noticed he was acting strangely. As a result, a meeting was held the morning of August 19, 2003 to determine if Wojewski should be suspended or be allowed to continue with his surgery privileges. Wojewski had a surgery scheduled for that morning. The individuals involved in the meeting were Dr. Oury, Dr. Charles Hart, Dr. Robert Glenn Allen, Jr. and Dr. Dennis Nesbit. Prior to the meeting Wojewski's psychiatrist, Dr. Steven Manlove, told Dr. Hart that Wojewski was not manic. Dr. Oury told the group he thought Wojewski could perform the scheduled surgery, based on his observations.⁴ The group concluded that Wojewski could perform the scheduled surgery and did not suspend him.

[¶ 7.] Unfortunately, Wojewski suffered a manic episode during the surgery. He refused to continue working on the patient and refused to allow anyone to help the patient. Wojewski was escorted from the operating room by security and Dr. Oury completed the surgery. Wojewski's hospital privileges were subsequently suspended.

[¶ 8.] Wojewski requested a hearing and a Fair Hearing Panel was assembled. The Panel conducted a four-day hearing, where Wojewski was represented by counsel. At the conclusion of the hearing, the Panel determined Wojewski's privileges should not be reinstated because of the threat of unpredictable future relapses due to his bipolar disease. The Panel's decision was reviewed and upheld by an Appellate Review Committee and RCRH's Board of Trustees.

[¶ 9.] Wojewski sued RCRH, Dr. Hart and Dr. Allen Jr. alleging six different counts: breach of contract, tortious interference with prospective business advantage, breach of fiduciary duty, aiding and abetting a breach of fiduciary duty, negligent infliction of emotional distress and intentional infliction of emotional distress. RCRH filed a motion to dismiss or, in the alternative, for summary judgment. The circuit court granted RCRH's motion to dismiss on the basis of immunity. It also granted, as an alternative ground, the summary judgment motion on the state tort claims.

[¶ 10.] Wojewski appeals and raises the following issues:

1. Whether the Health Care Quality Improvement Act affords immunity to defendants for allowing Wojewski to perform surgery on August 19, 2003.

2. Whether the Impaired Physician Policy Statement is a contract.

3. Whether a tortious interference with prospective business advantage claim can stand when a party fails to act, rather than affirmatively acts.

4. Whether a fiduciary duty is created when a party purposely exercises complete control over a person's body and actions.

5. Whether the court erred in granting summary judgment on the negligent infliction of emotional distress claim.

6. Whether the court erred in granting summary judgment on the intentional infliction of emotional distress claim.

STANDARD OF REVIEW

[¶ 11.] "It is well settled that `[a] motion to dismiss under Rule 12(b)(5) tests the law of a plaintiff's claim, not the facts which support it.'" Osloond v. Farrier, 2003 SD 28, ¶ 4, 659 N.W.2d 20, 22 (quoting Thompson v. Summers, 1997 SD 103, ¶ 5, 567 N.W.2d 387, 390 (additional citations omitted)). The circuit court,

consider[s] the complaint's allegations and any exhibits which are attached. The court accepts the pleader's description of what happened along with any conclusions reasonably drawn therefrom. . . . "In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." The question is whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief. The court must go beyond the allegations for relief and "examine the complaint to determine if the allegations provide for relief on any possible theory."

Id. (internal citations omitted). "An appeal of a motion to dismiss presents a question of law and our standard of `review is de novo, with no deference given to the trial court's legal conclusions.'" Id. (quoting City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

[¶ 12.] Our review of a summary judgment is well settled.

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Read v. McKennan Hosp., 2000 SD 66, ¶ 8, 610 N.W.2d 782, 784 (quoting Coffee Cup Fuel Stops & Convenience Stores, Inc., v. Donnelly, 1999 SD 46, ¶ 17, 592 N.W.2d 924, 926) (additional citations omitted).

[¶ 13.] Whether the HCQIA affords immunity to RCRH for its August 19, 2003 meeting and its decision to allow Wojewski to perform surgery that day.

[¶ 14.] The Health Care Quality Improvement Act (HCQIA), 42 U.S.C. section 11101 et seq., was passed "`to improve the quality of medical care by encouraging physicians to identify and discipline physicians who are incompetent or who engage in unprofessional behavior.'" Sugarbaker v. SSM Health Care, 190 F.3d 905, 911 (8th Cir.1999) (quoting Mathews v. Lancaster Gen. Hosp., 87 F.3d 624, 632 (3d Cir.1996) (quoting H.R.Rep. No. 903, 99th Cong., 2d Sess. 2 (1986))). Congress gave immunity to participants engaged in professional peer review actions in order to advance effective peer review. Id. (citing 42 U.S.C. §§ 11101(5), 11111(a)).

[¶ 15.] For immunity to apply, the action must come within the statutory meaning of "professional review action." Read, 2000 SD 66, ¶ 18, 610 N.W.2d at 785 (quoting 42 U.S.C. § 11151(9)). "Professional review action" is defined as,

an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician. Such term includes a formal decision of a professional review body not to take an action or make a recommendation described in the previous sentence and also includes professional review activities relating to a professional review action.

42 U.S.C.A. § 11151(9) (emphasis supplied). "Professional review activity" is also covered by immunity and is defined as,

an activity of a health care entity with respect to an individual physician—(A) to determine whether the physician may have clinical privileges with respect to, or membership in, the entity, (B) to determine the scope or conditions of such privileges or membership, or (C) to change or modify such privileges or membership.

42 U.S.C.A. § 11151(10) (emphasis supplied).

[¶ 16.] Wojewski concedes the actions taken by RCRH after the August 19 surgery incident are immune from damages under the HCQIA. His sole contention is the August 19 morning meeting to discuss revoking Wojewski's privileges and the subsequent decision to allow him to continue with...