Zipper v. Health Midwest, WD

Decision Date04 August 1998
Docket NumberNo. WD,WD
Citation978 S.W.2d 398
PartiesRonald ZIPPER, D.O., et al., Appellant, v. HEALTH MIDWEST, et al., Respondents, Medical Center of Independence, Respondent. 51357.
CourtMissouri Court of Appeals

Charles J. McPheeters, Jefferson City, for respondent, Medical Center of Independence.

R. Dan Boulware, St. Joseph, for respondent Health Midwest.


ULRICH, Chief Judge, Presiding Judge.

Dr. Ronald Zipper and Independent Orthopedics and Sports Medicine, P.C. ("Appellants"), appeal from the trial court's order granting summary judgment in favor of the Medical Center of Independence, Inc. ("MCI"), Medical Center Park, Inc. ("MCP"), Health Midwest, Orthopedic Associates of Kansas City, Inc., and twenty-four individually named defendants 1 ("Respondents"). Appellants brought an action for breach of contract, civil conspiracy to violate Missouri antitrust laws, promissory estoppel and civil conspiracy to commit the tort of fraudulent misrepresentation after MCI breached an alleged agreement to sell Dr. Zipper an office building and then terminated Dr. Zipper's staff privileges at MCI. The trial court entered summary judgment against Appellants on all of their claims. Appellants raise three issues of trial court error. They contend that the trial court erred in granting summary judgment in favor of Respondents where (1) Dr. Zipper's failure to file a counterclaim in prior federal proceedings between the parties did not bar Appellant's claims resulting from MCI's breach of an agreement to sell Dr. Zipper an office building; (2) genuine issues of material fact exist as to whether MCI breached a contractual duty to Dr. Zipper by failing to follow MCI bylaws when it revoked Dr. Zipper's medical staff privileges; and (3) the petition stated a claim for civil conspiracy by asserting that Respondents conspired to unlawfully revoke Dr. Zippers's staff privileges at MCI. The summary judgment of the trial court on Counts I, II, and IV is affirmed. The summary judgment of the trial court with respect to Count III is affirmed as to the MCI Board members and Mr. Kaseff, but is reversed as to MCI and MCP on the theory of unjust enrichment, and the case is remanded for further proceedings consistent with this opinion.


Dr. Ronald Zipper is an orthopedic surgeon who has practiced medicine in Kansas City and Independence for over fifteen years. Dr. Zipper specializes in hand surgery and knee and shoulder arthroscopy. 2 For a period of time, Dr. Zipper practiced medicine through a professional corporation under the name of Independence Orthopaedics & Sports Medicine, P.C., which is the predecessor corporation to Appellant Independent Orthopedics & Sports Medicine, P.C.

Dr. Zipper successfully applied for staff privileges at MCI in 1987 and exercised the privileges until 1992. The MCI Surgical Executive Committee ("SEC") commenced a peer review of Dr. Zipper's performance as a surgeon in 1989 after questions were raised concerning the number and timing of repeat surgeries. As a member of SEC, Dr. Zipper attended its meetings and was aware his charts were being questioned. Dr. Zipper was resistive to the suggestion that his indications for surgery were questionable, and he disputed the need for indication criteria for arthroscopic surgery.

The SEC recommended to the MEC in April 1990, that an outside consultant be retained to review the knee surgeries of all orthopedic surgeons. The Medical Executive Committee ("MEC") reviewed summary statistics of all orthopedic surgeons without identifying individual physicians. As a result of the review, the MEC hired Dr. Kenneth Wertzberger, an instructor in the Department of Surgery, Division of Sports Medicine at the University of Kansas School of Medicine, to conduct a blind review of all arthroscopic surgeries in 1989 by the twelve doctors performing such surgeries at MCI. The orthopedic surgeons under review were notified of the outside review by a memorandum dated June 7, 1990.

Dr. Wertzberger was provided a statistical overview of all arthroscopic surgeries performed in 1989 and the first six months of 1990 and pertinent medical records of all the repeat arthroscopic surgeries which occurred within sixty days of the original surgery. Dr. Wertzberger's report identified "worrisome aspects" about Dr. Zipper's statistics due to the inordinate number of plica resections, 3 the number of repeat surgeries and the timing between surgeries. Dr. Wertzberger concluded that Dr. Zipper's care in repeat cases was "sub-par with regard to the current state of the art of arthroscopy and knee treatment."

Following the receipt of Dr. Wertzberger's report in June, 1990, Dr. Lentz, President of the Medical Staff, Dr. Mangum, Chair of the Department of Surgery, Mr. Christiansen, MCI's new CEO, and Ms. Resch, an officer with the risk management division of the hospital, met to discuss the potential for a full peer review of Dr. Zipper's practice at MCI. Dr. Mangum requested MEC undertake further investigation or corrective action. MEC held a meeting on August 27, 1990, to discuss Dr. Wertzberger's report and the request for further investigation or corrective action. MEC discussed the need to review all laminectomies 4 due to a high incidence of dural tears, most of which were sustained by Dr. Zipper's patients. At the conclusion of the meeting, MEC formed an ad hoc committee to conduct a full investigation of Dr. Zipper's medical staff and clinic activities at MCI and to investigate Dr. Zipper's professional relationships with co-workers. Dr. Zipper was given notice of the impending internal investigation on August 30, 1990. Dr. Zipper retained legal counsel to respond to the committee's actions in the investigation.

The ad hoc committee formed by MEC at the August 27, 1990, meeting reevaluated the arthroscopy materials and records reviewed by Dr. Wertzberger. The ad hoc committee considered the complications in laminectomy surgeries, such as dural tears and inadvertent laminectomies, as well as the number and indications for multi-level laminectomies. The ad hoc committee asked a neurosurgeon on the medical staff to review the laminectomy procedures; the neurosurgeon recommended a formal peer review by the orthopedic surgeons performing spine surgery. At MEC's next meeting, the ad hoc committee reported to MEC that while some hospital employees and physicians found Dr. Zipper easy to work with and cordial, others found him to be demeaning, belittling and rude and were very fearful of retaliation. The ad hoc committee reported that it was not able to complete its investigation without additional information. MEC, thus, determined to request information from Dr. Zipper. MEC sent Dr. Zipper a letter on October 3, 1990, notifying Dr. Zipper of the ongoing investigation; informing Dr. Zipper that MEC was "gravely concerned" about his practice at MCI; and requesting information from Dr. Zipper regarding certain arthroscopy and laminectomy surgeries performed at MCI, his physical and mental health, and any additional information Dr. Zipper believed relevant to the investigation.

In response to the October 3, 1990, letter, Dr. Zipper requested numerous documents and copies of correspondence, reports and medical records from MEC and SEC. MEC and SEC sent Dr. Zipper the requested information in October 1990. Dr. Zipper was granted until January 7, 1991, to respond to MEC's request for information. During this time, Dr. Zipper refused to submit to a confidential psychiatric exam and limited MEC's access to the mental health information it requested. The ad hoc committee suspended all quality assurance and peer review activities with respect to cases outside the investigation due to Dr. Zipper's disruptive and uncooperative behavior. The ad hoc committee submitted a report to MEC stating it was in "general agreement" with the findings of Dr. Wertzberger.

Dr. Michael Gross, an independent reviewer retained by Dr. Zipper generally agreed with the analysis of Dr. Wertzberger and the ad hoc committee concerning Dr. Zipper's arthroscopic procedures. Dr. Gross concluded that Dr. Zipper's practice of diagnostically arthroscoping a patient's knee and then later performing surgery to repair the problem discovered by the arthroscopy resulted in unnecessary surgeries. Dr. Gross believed that Dr. Zipper's incidence of plica resection was high, but due to the lack of follow-up information, Dr. Gross could not determine if the patients benefitted from the procedures.

Based on the report from the ad hoc committee, MEC elected to interview Dr. Zipper at the next MEC meeting in order to obtain necessary information to formulate a recommendation to the MCI Board of Directors. Dr. Zipper read a prepared statement at the March 4, 1991, MEC meeting. The MEC recommended that substantial restrictions be imposed on Dr. Zipper's practice at MCI. Dr. Zipper timely submitted a request for a hearing pursuant to the "Medical Staff Fair Hearing Plan." Under section V.H. of the Medical Staff Fair Hearing Plan, Dr. Zipper bore the burden of proving "by clear and convincing evidence either that the proposed adverse recommendation or action lacks substantial factual basis or was arbitrary, capricious or unreasonable."

Pursuant to the procedures contained in the Medical Staff Fair Hearing Plan, the hearing committee met on July 17, 1991, to review MCI's recommendation regarding Dr. Zipper. Both MCI and Dr. Zipper presented extensive testimony and evidence regarding Dr. Zipper's patient care at MCI, his mental health status, and his relations with other hospital employees and physicians. MEC presented expert testimony on arthroscopic surgery by Dr. Jelley, an orthopedic surgeon on MCI's medical staff and a member of the ad hoc committee of the ...

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