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Knapp v. Palos Community Hospital





Appeal from the Circuit Court of Cook County; the Hon. Richard L. Curry, Judge, presiding.


On January 27, 1982, the plaintiffs, William B. Knapp, M.D.; Francisco Lopez, M.D.; Hugh Savage, M.D.; and Dr. William B. Knapp & Associates brought this action for injunctive relief alleging wrongful curtailment of medical staff privileges against the defendants, Palos Community Hospital; the St. George Corporation; Sister Margaret Wright; Thomas Lavery; Carlo Fioretti, M.D.; Terrance Moisan, M.D.; and Dr. Adams. On July 15, 1982, the trial court entered a temporary restraining order enjoining the defendants from denying the plaintiffs reappointment to the medical staff. On July 20, 1982, the plaintiffs amended the complaint to allege that Palos had violated its bylaws in denying reappointment. The amended complaint also joined Kenneth Wilcox, M.D.; S. Katapodis, M.D.; Y. Normanboy, M.D.; Z. Risvi, M.D.; T. Arvyoa, M.D.; John Kline, M.D.; N. Henry Coleman, M.D.; Roland Winterfield, M.D.; David Scheiner, M.D.; and S. Caliendo, M.D., as additional defendants. On July 30, 1982, following a five-day hearing, the trial court dissolved the temporary restraining order of July 15, 1982, and entered a preliminary injunction reinstating the plaintiffs to the medical staff with full privileges. The St. George Corporation, d/b/a Palos Community Hospital (Palos), brought this interlocutory appeal. The issues presented for review are whether the trial court abused its discretion in entering the preliminary injunction and whether the hospital violated its bylaws in not reappointing the plaintiffs to the medical staff.

The plaintiffs, specialists in internal medicine, practice as a group at Palos. Dr. Knapp joined the Palos staff in 1972, Dr. Lopez in 1975 and Dr. Savage in 1977. Each plaintiff also enjoys staff privileges at Mercy Hospital and Medical Center in Chicago, Little Company of Mary Hospital in Evergreen Park and Suburban Hospital and Sanitarium of Cook County in Hinsdale. The plaintiffs have an office in Evergreen Park.

Palos is a private hospital located in Palos Heights, Illinois. It is owned and operated by the St. George Corporation, a not-for-profit organization. Sister Wright, the president and chief executive officer of Palos, reports directly to the St. George Corporation Board of Directors (Board).

The Joint Commission on the Accreditation of Hospitals requires quarterly audits of the hospital's respiratory care services. Accordingly, among the four audits conducted at Palos in 1981 was an ancillary services audit of ventilatory care by Dr. Moisan, Palos' director of respiratory therapy, and Dr. Adams (the Moisan audit). Ventilatory care deals with the circulation and exchange of gases in the lungs that is basic to respiration. The Moisan audit reviewed the medical records of patients who had received ventilatory care treatment from 11 physicians from January through June 1981. Of 33 deficiencies found, 17 were in the charts of the plaintiffs' patients.

On November 16, 1981, Palos' intensive care committee reviewed the Moisan audit results and voted to recommend that ventilatory privileges be separately delineated on a privilege card for each physician on the staff. Dr. Savage participated in the meeting.

On November 18, 1981, the Moisan audit results were presented at a department of medicine meeting which the three plaintiffs attended. The department of medicine voted to approve the recommendation of the intensive care committee.

On November 19, 1981, the quality assurance committee (also known as the utilization review committee) voted to accept the Moisan audit. The committee adopted a motion recommending that Dr. Fioretti, Chairman, notify the physician with the greatest number of deficiencies that all orders for mechanical ventilation would be concurrently reviewed by Dr. Moisan or Dr. Adams.

There is conflicting testimony as to what happened at this meeting. According to Dr. Knapp, he protested upon learning of the Moisan audit and demanded to know the numbers of the charts, the names of the patients, and the deficiencies and their relations to the charts. He testified that he did not discover the chart numbers at issue until February 15, 1982. Dr. Moisan countered that Dr. Knapp did not request identification of the chart numbers included in the audit at the meeting, but that if he had, Dr. Moisan would have furnished the numbers. Dr. Moisan also testified that he had volunteered to give the charts or chart numbers to the plaintiffs. The five charts in question were on the table during the meeting.

The medical executive committee met on November 24, 1981, and approved the intensive care committee's recommendation to list ventilatory privileges on the privilege cards. It was noted that since these privileges have never been assigned in the past, "one cannot consider that they are being denied to anyone at this time."

On December 11, 1981, the recommendation of the quality assurance committee regarding review of ventilation orders was incorporated in a letter to Dr. Knapp. The letter stated, in relevant part, as follows:

"It was moved and carried that a letter be forwarded to your attention informing you that your group's charts had the greatest number of deficiencies, and in view of the findings of this audit all orders for mechanical ventilation will be concurrently reviewed by Dr. Moisan or Dr. Adams.

In as much [sic] as Dr. Moisan has a contractual [sic] relationship with the hospital, he has the authority to change any orders that are inappropriate. Dr. Moisan has been instructed to intervene on behalf of any patient on any mechanical ventilation in situations where management is inappropriate, deficient or dangerous. Should there be a need to intervene, you will be informed. Should there be a conflict, it will be resolved by Administration and the Department of Medicine."

At the next meeting of the medical executive committee on December 22, 1981, Dr. Murphy read a letter from Dr. Knapp protesting the quality assurance committee's decision to have his ventilatory orders monitored. He asserted that he had never been notified of the deficiencies in his patients' charts prior to the monitoring and that his right to due process had been violated. It was noted that members of Dr. Knapp's group attended the meetings of the quality assurance committee and department of medicine when the audit was presented. Following discussion, the committee decided to advise Dr. Knapp that it was the opinion of the executive committee that the audit was appropriately reviewed and approved, that no privileges of any physician were restricted, and that ventilatory privileges would be added to the privilege card and would be reviewed for the first time during the annual reappointment process.

Dr. Savage, Dr. Moisan, medical affairs vice-president Thomas Lavery, and medical staff president Dr. Rodolfo Mejicano met on December 23, 1981, to resolve any problems with the parties involved and to institute a mechanism for the review of the plaintiffs' ventilatory orders. Dr. Moisan testified that he brought the charts in question to the meeting and offered them to Dr. Savage. Dr. Savage declined to review them and said he was not interested at that time in going over them. Dr. Moisan further testified that Dr. Savage said he understood Dr. Moisan's observations of the audit, and realized there would be no interference with his ability to write ventilatory orders. According to Dr. Mejicano's testimony, Dr. Savage agreed that any conflict between one of the plaintiffs and the lung therapist would be resolved by Dr. Moisan or Dr. Mejicano. Dr. Knapp testified that Dr. Savage was acting on behalf of the three plaintiffs at this meeting. The arrangements made at the meeting were confirmed by Lavery and Dr. Savage on December 28, 1981.

Palos' bylaws authorize a peer review system to evaluate quality of medical care and to annually reappoint the members of its medical staff, subject to the ultimate authority of the Board. The reappointment procedure begins with the medical staff which, through appropriate committees, considers each application for reappointment and transmits its findings to the Board. The criteria used for the evaluation of each physician include, inter alia, direct observation of care provided by review of patients' records and medical staff records; determination to adhere strictly to professional ethics, to work cooperatively with others and to be willing to participate in the discharge of staff responsibilities; provision of quality medical care to patients; and participation in the patient care audit, utilization review and other medical quality maintenance activities.

The bylaws require an initial review of all pertinent information available on each practitioner by the privilege evaluation committee of each department. The privilege evaluation committee makes recommendations as to reappointment, promotion and granting of clinical privileges of each practitioner to the department chairman. The members of the department review the recommendations and by majority vote approve or disapprove them. The chairman then submits the privilege evaluation committee recommendations and the department conclusions to the medical executive committee.

Following review of those recommendations and conclusions, the medical executive committee makes findings, which findings if favorable to the practitioner, are forwarded to the Board. If the findings are adverse to the practitioner with respect to reappointment, classification or clinical privileges, the affected practitioner is entitled to notice and a hearing as provided by article IX of the bylaws.

Article IX of the bylaws allows a practitioner to request a hearing within 30 days after receipt of notice of any initial adverse decision. The hearing is held before an ad hoc hearing panel of five persons, three of whom must be practitioners. Within 14 days after receipt of a written request for a hearing, the medical executive committee schedules the hearing for not less than 21 nor more than 42 days from the receipt of the request. The president notifies the practitioner of the time, date and place of the hearing, as well as the acts or omissions with which he is being charged, a list of specific or representative charts being questioned, and/or other reasons or subject matter that were considered in making the adverse decision.

The bylaws grant participants the rights to present and examine witnesses, question witnesses presented by others on relevant matters, and introduce oral and documentary evidence. The hearing committee may actively participate in the proceedings and shall deliberate outside the presence of the other participants. Within 14 days of the hearing, the hearing committee shall report in writing its decision and findings to the medical executive committee or to the Board and to the affected practitioner. The report shall include the recommendations of the hearing committee to affirm, modify or reject the initial adverse decision, with supporting documentation.

If the hearing committee's decision is adverse to the practitioner, he may request in writing an appellate review within 14 days of receipt of notice of the decision. This review is conducted by at least five disinterested persons appointed by the chairman of the Board. The practitioner has access to reports and all material considered by the hearing committee. He may also submit a written statement on his own behalf which shall specify the areas of disagreement and the practitioner's reasons. The appellate review committee has the responsibility to determine whether the adverse decision against the practitioner was justified. Within 14 days after the completion of the review, the committee shall report in writing to the Board its recommendation to affirm, modify or reverse the adverse decision, the basis for such recommendation, and supporting documentation. Within 21 days of the appellate review, the Board takes final action on the matter and notice thereof shall be sent to the practitioner.

On January 27, 1982, the department of medicine privilege evaluation committee began the annual review process by considering the plaintiffs' applications for reappointment to the medical staff. The privilege evaluation committee approved the applications except as to ventilation therapy privileges. The privilege evaluation committee voted to recommend the reappointments and deferred discussion of the ventilation question and the Moisan audit to its next meeting.

Also on January 27, 1982, the plaintiffs filed a complaint in the circuit court of Cook County against Palos, the St. George Corporation, Sister Margaret Wright, Thomas Lavery, Dr. Fioretti, Dr. Moisan and Dr. Adams. The complaint alleged that the plaintiffs' privileges to write ventilation orders were curtailed by the action of the quality assurance committee, that the action taken violated Palos' bylaws, and that the defendants' action was wrongful.

The next privilege evaluation committee meeting took place on February 10, 1982. As a result of a motion made, seconded and carried, Dr. Lopez was not permitted to tape record the meeting. Dr. Moisan announced that since the plaintiffs had filed a lawsuit, he would be unable to discuss their ventilation privileges. Sister Wright described the complaint filed in the circuit court by the plaintiffs and announced that, in the interest of impartiality, Palos had sought external review of the medical care rendered by the plaintiffs. She reported that Dr. David L. Scheiner of Michael Reese Hospital and Pritzker School of Medicine, hired as a consultant, had reviewed various charts of the plaintiffs' group and reported that their practice had fallen sharply below ...

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