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Rao v. St. Elizabeth's Hospital

OPINION FILED JANUARY 24, 1986.

MALLAVAROPU S. RAO, M.D., PLAINTIFF-APPELLANT,

v.

ST. ELIZABETH'S HOSPITAL OF THE HOSPITAL SISTERS OF THE THIRD ORDER OF ST. FRANCIS, DEFENDANT-APPELLEE



Appeal from the Circuit Court of St. Clair County; the Hon. Joseph F. Cunningham, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

The plaintiff, Mallavaropu S. Rao, M.D., brought suit against the defendant, St. Elizabeth's Hospital of the Hospital Sisters of the Third Order of St. Francis, seeking a temporary restraining order, preliminary injunction, and permanent injunction following the defendant's permanent suspension of the plaintiff from its medical staff. The plaintiff sought to enjoin the defendant's suspension of his privileges. The trial court issued a temporary restraining order but after a hearing denied the petition for preliminary injunction. Thereafter the trial court denied the plaintiff's motion to reconsider its order denying the preliminary injunction and still later granted the defendant's motion to dismiss the plaintiff's amended complaint for permanent injunction, for declaratory judgment, and for other relief. The plaintiff has appealed presenting several issues for review.

The facts are largely undisputed. On March 12, 1984, David Rose, M.D., chairman of the defendant's department of medicine and of the executive committee of the defendant's department of medicine, wrote a letter to the plaintiff stating that the executive committee of the department of medicine wished to inform him that as of that date he would not be allowed to admit any new patients to the defendant institution or to see any new consultations there and that once any patients he was seeing at the time were discharged, all medical privileges would be suspended. Further, all interpretations privileges in the heart station would cease according to the same schedule. The letter stated that the executive committee had reached this conclusion because of

"the following findings. After careful review of multiple patient records the following has been determined.

1. The number of glucose tolerance tests ordered is excessive and in many cases there is no appropriate indication for a glucose tolerance test;

2. There is serious question of the validity of interpretation of echo cardiograms.

3. The number and appropriateness of the diagnoses of angina pectoris, diabetes mellitus, and hypertension is not substantiated by the patients' records.

4. The number and appropriateness of multiple studies ordered from the Heart Station for each patient appears to be in error."

The letter advised the plaintiff that if he so requested, "pursuant to Article VII, Section 2, Subsection 2 of the Medical Staff Bylaws, you will have the opportunity to have an interview before an Ad Hoc Committee of the Medical Staff of St. Elizabeth's Hospital for review of your suspension." On March 15, 1984, at a special meeting the executive committee of the medical staff supported unanimously the summary suspension made by Dr. Rose.

On April 4, 1984, the ad hoc committee of the defendant's medical staff conducted a hearing in response to the plaintiff's request for one. A transcript of this hearing, which was entered into evidence at the hearing with regard to the preliminary injunction, is included in the record for review. The plaintiff was not represented by counsel at the hearing conducted by the ad hoc committee. Dr. Rose was not present at the hearing. In his absence the ad hoc committee entered his letter to the plaintiff of March 12, 1984, into the minutes. Early in the proceedings the plaintiff read a statement from a letter to the chief of defendant's medical staff, Dr. Santiago, in which the plaintiff said, inter alia, "`I regret commissions and omissions inadvertently carried out by me during stressful situations during this [apparently the past few months] while caring for my patients at St. Elizabeth's Hospital. I was rightfully disciplined by my peers of the Medical Staff. This happened in the past and I assure you this will never be repeated.'" He concluded the statement by saying, "`I only ask that I will be allowed to clear my name by being given another chance. Thank you for anything you might do in my behalf.'" Dr. Cagas, the chairman of the ad hoc committee, asked the plaintiff, "If this were a court of law and you would, you had been asked specifically, granting for the sake of argument that these are individually related charges, how would you — what's the word — plead to this charge? Are you innocent or guilty of any of these four?" The plaintiff responded, "As I mentioned earlier, charts and all, I might have in somebody elses' view maybe not an appropriate diagnosis. In other words, I might have erred in so many charts, under the situations. In other words, I'm not totally denying Dr. Rose's statement." Prior to the hearing, the committee had reviewed 57 charts. The plaintiff stated at the hearing that he had not gone through "all the charts." Dr. Cagas asked the plaintiff if he would like to be given more time to review the charts in question. The plaintiff answered that he would like that opportunity. Considerable discussion by the committee members and the plaintiff ensued about reconvening the meeting at another time some days later, for example, so that the plaintiff could have an opportunity to review the charts in question. At one point in the discussion the plaintiff stated, "and if I'm at your disposition, give me time to go through the charts. I'll answer your questions, whatever you suggest to me. I'm at your disposition. I'm here at your disposition." One of the five members of the committee suggested that the plaintiff review the charts during the meeting already in progress. When asked whether he could review the charts at the meeting already convened, the plaintiff answered, "If you have time. I don't want to hold you all up. If you have time, I will be able to. If not, give me time. I will go through. Like I said, this is up to your disposition of you members." Thereafter the following discussion was had:

"DR. CAGAS: The question, gentlemen, is shall we show the charts now and discuss those charts or shall we give him a chance to review and meet another time? Let us resolve that.

DR. ZENAROSA: What do you think, Dr. Rao?

DR. RAO: I'm at your disposition.

DR. CAGAS: He's leaving it to the committee. I need a motion from the committee.

DR. SOUTHWORTH: I move we discuss the notes tonight.

DR. SAKRAN: I favor.

DR. CAGAS: Those in favor?

(At this time, the motion was carried by a unanimous showing of hands.)"

The hearing thereupon continued with a discussion of the plaintiff's ordering of glucose tolerance tests. When asked whether the substance and the essence of items Nos. 3 and 4 of Dr. Rose's letter, concerning the diagnosis of angina pectoris, diabetes mellitus, and hypertension and the number of studies ordered from the heart station, were correct or incorrect, the plaintiff responded, "Substance is correct, yes." Of the 10 patients whose charts were mentioned during the hearing, about five were discussed at some length. In three of these five instances the plaintiff agreed that the criticisms advanced by the members of the committee were valid and that he had been in error. During the hearing one member of the committee asked the plaintiff, "And then you also said that your practice from here on will be different from what it has been. How different would it be, in what respects?" The plaintiff answered in part, "Accepted normal criteria, from the standard, it would not be — glucose tolerance test, you wouldn't see in every patient, and you wouldn't see the echocardiogram on most patients or EKGs. Any hospital has some standards. So the testing will be minimal. * * * History will be more thorough. And final summary will be more thorough. And anything that is unnecessary, tests will not be seen on the chart." At the conclusion of the hearing a member of the committee asked the plaintiff, "[D]o you feel that there is anything that the committee should do that we haven't done to shed more light on the subject, to gather more facts?" Do you feel that there's anything we should do that we haven't done?" The plaintiff responded:

"You have done the best way of asking me questions. All of you. I'm not trying to praise you all here. But — past two nights I couldn't sleep for what questions you're going to ask me. You asked me appropriately, and no intimidation from any angle, and made me comfortable, able to come here. No matter what you make a decision, but you have done very good questioning and make me feel comfortable. If you have anything from me, I'm open, anytime available, anyone of you call me."

On April 11, 1984, the ad hoc committee submitted its report concerning the plaintiff's suspension to Dr. Santiago. The ad hoc committee confirmed the allegations made in Dr. Rose's letter of March 12, 1984, and reported as a further finding,

"In addition, it [the committee] discovered a pattern of over and/or inappropriate utilization of laboratory procedures, particularly EKGs and glucose tolerance tests and examples of complaints of illnesses that were not substantially confirmed by subsequent hospital course, and instances of final diagnosis that did not jibe with or were not substantiated by history or laboratory data including serious additions (examples: diverticulitis, spastic colitis, thyrotoxicosis) and omissions (example: cholelithiasis). In the interpretations of glucose tolerance tests, he appeared to ignore existing guidelines."

The ad hoc committee made the following four recommendations:

"1. Dr. Rao be asked to take a leave of absence for one year;

2. After that time when he comes back to the Medical Staff, he should not be given privileges to read EKG's, echocardiogram and Holter monitor tests, invasive cardiac or endoscopic procedures;

3. He should be appropriately proctored for one year; and

4. If Dr. Rao does not accept the first three recommendations, the alternative recommendation would be suspension."

On May 7, 1984, the executive committee held a special meeting to hear the report of the ad hoc committee. At the special meeting the executive committee accepted the report of the ad hoc committee but did not accept its recommendations and, instead, voted to suspend the plaintiff permanently from the defendant's medical staff. The plaintiff was notified that the executive committee had voted to recommend the plaintiff's suspension from the medical staff to the defendant's board of directors. On May 11, 1984, the plaintiff requested an appellate review, pursuant to the bylaws, of his suspension. The appellate review committee met on June 7, 1984, affirmed the executive committee's recommendation of permanent suspension, and made a recommendation of permanent suspension of the plaintiff to the defendant's board of directors. On June 12, 1984, the defendant's board of directors notified the plaintiff of its decision, effective immediately, to suspend him permanently from the defendant's medical staff.

On June 19, 1984, the plaintiff brought suit, as we have said, for a temporary restraining order, a temporary injunction, and a permanent injunction, alleging the violation by defendant of his procedural and substantive due process rights and the violation by defendant of its own bylaws in the plaintiff's suspension. That same day the trial court granted a temporary restraining order enjoining the defendant from suspending the privileges of the plaintiff. That order was later extended until the hearing for preliminary injunction on July 2, 1984. On June 29, 1984, the defendant moved to dissolve "all injunctions" issued in the cause, asserting, inter alia, that the defendant's bylaws were followed with respect to the plaintiff's suspension.

At the hearing on the preliminary injunction the plaintiff was the only witness. He testified that he is on the staffs of Memorial Hospital in Belleville and of Centreville Township Hospital, that he has been on the staff of the defendant institution for 11 years, and that the defendant hospital is the primary one he uses in his practice. He stated that the morning after he received the letter of March 12, 1984, from Dr. Rose he requested a meeting with Dr. Rose asking for an "explanation, the details of the charges. What patients are you talking about and what did I do wrong. What specifics. He refused to meet with me." Thereafter, he said, he wrote a letter to the executive committee of the staff asking for a hearing pursuant to the bylaws. On March 15, 1984, he met with the executive committee for about 20 minutes. The result of that meeting was his continued suspension. The plaintiff then requested in writing a hearing before the ad hoc committee. When he received notice of that hearing, the notice made no reference to any specific charts or specific patients or to any "representative" charts to be discussed at the hearing to be held on April 4, 1984. Prior to the hearing, he said, he had no idea which of his patients would be discussed. He stated that no one from the executive committee was at the meeting of the ad hoc committee to present evidence against him or to be cross-examined by him. At the meeting of the ad hoc committee the members had "charts and some members even had some journal articles and prepared questions in front of them." He stated that he was unable to respond appropriately to specific questions that were asked of him by members of the ad hoc committee concerning specific charts

"[b]ecause I did not have at once [sic] notice of what charts they were going to ask about and they already have prepared material in front of them, prepared questions in front of them. On the spot I had some knowledge regarding these patients not in the charts, in the office files which would have supplemented had I had time to get the information from the office files supplement why a particular test was ordered, what was result of particular test and family history and other elements, the findings were in the office files. I did not have them and I was under a lot of pressure. Nervous in front of members. Never been before. Make me unable to answer questions as good as I could have."

He stated further, "I have lot of information in the office files. I could have gotten, obtained the information from them and answered some of the reasons why I ordered certain tests, why the diagnosis was like that." He said that this information was available to him, which he could have brought to the hearing had he known which patients were to be discussed. He testified that approximately eight or nine of the 57 charts were discussed. At the conclusion of this hearing, he said, he did not feel that he had been able to prepare and defend himself properly. Asked why he felt that way, he answered, "Because I respond to the charge of the questions from the committee who had already prepared and had no preparation, no prior knowledge."

On cross-examination the plaintiff testified that orally, prior to the ad hoc committee hearing, he had informed Dr. Harsin, the defendant's medical director, that he did not understand the nature of the charges against him. In the letter notifying plaintiff of the ad hoc committee's hearing on April 4, 1984, Gerald Harman, defendant's executive vice president, had advised him to contact Dr. Harsin if plaintiff had any questions or needed additional information. During cross-examination, the following questions were asked and answers given:

"Q. Isn't it true, sir, that on a number of occasions during the course of the Ad Hoc hearing that was conducted on April 4, 1984 the doctors that were present and comprised the committee indicated to you that either, one, a recess could be taken so that you could review patients' charts or, two, the committee could be adjourned and reconvened at a later date to give you an opportunity to review the patients' charts and your notes at the office? Isn't that correct?

A. Yes, sir.

Q. And that happened on a number of occasions during the course of ...


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