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07/23/87 Lewis E. Adkins, v. Sarah Bush Lincoln Health

July 23, 1987

LEWIS E. ADKINS, PLAINTIFF-APPELLANT AND CROSS-APPELLEE

v.

SARAH BUSH LINCOLN HEALTH CENTER, DEFENDANT-APPELLEE AND CROSS-APPELLANT (G. D. WRIGHT ET AL., DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

511 N.E.2d 1267, 158 Ill. App. 3d 982, 110 Ill. Dec. 947 1987.IL.1045

Appeal from the Circuit Court of Coles County; the Hon. Rolland F. Tipsword, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., concurs. JUSTICE LUND, Dissenting in part and Concurring in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

On July 27, 1984, plaintiff, Lewis E. Adkins, M.D., filed suit in the circuit court of Coles County against defendants, Sarah Bush Lincoln Health Center, an Illinois hospital corporation (health center), and various physicians and surgeons who were alleged to be on the health center's executive committee, and Martin E. Tullis, the health center's executive director. The gist of the action was the contention that defendants had illegally denied plaintiff's application for renewal of obstetrical and surgical privileges at the health center and illegally imposed a second partial summary suspension on those privileges.

An amended complaint upon which judgment was entered consisted of three counts. Each count charged all of the defendants. The first count requested a declaration that the foregoing activities of defendants were invalid and a mandatory injunction upon the defendants to set those activities aside. The second count contended that the activities of the defendants were wilful and wanton and sought monetary damages for the injury allegedly imposed upon plaintiff. The last count alleged that the defendants, through their conduct in denying professional privileges to plaintiff, had conspired against him in violation of the Illinois Antitrust Act (Ill. Rev. Stat. 1983, ch. 38, par. 60-3(1)) and sought treble damages against each of the defendants.

By a final judgment entered November 6, 1986, the circuit court: (1) dismissed the second and third counts against all defendants for failure to state a cause of action; (2) dismissed the first count against all individual defendants on the basis that the declaratory and injunctive relief requested in that count could be granted, if at all, only against the entity, the health center, which had acted to impose the summary suspension and deny renewal of plaintiff's professional privileges; (3) granted summary judgment to the health center in regard to its action in imposing a second summary suspension; but (4) granted plaintiff a summary judgment declaring the action of the health center in denying renewal of plaintiff's obstetrical and surgical privileges to have been improper and mandatorily enjoining that defendant to nullify that action., Plaintiff has appealed and defendant health center has cross-appealed. We affirm in all respects.

We examine first the issues upon which summary judgments were granted. The general rule has developed that courts will not intervene in disputes over peer review procedures of medical staffs of hospitals unless unfairness to the person being reviewed is shown to have resulted from failure of the hospital to follow its constitution or bylaws or from partiality or bias on the part of the group performing the review. (Van Daele v. Vinci (1972), 51 Ill. 2d 389, 282 N.E.2d 728; Maimon v. Sisters of the Third Order of St. Francis (1983), 120 Ill. App. 3d 1090, 458 N.E.2d 1317; Jain v. Northwest Community Hospital (1978), 67 Ill. App. 3d 420, 385 N.E.2d 108.) Plaintiff's contention here is that the health center did not follow its own bylaws in performing the peer review.

The facts upon which the summary judgments were entered were undisputed. The health center bylaws required yearly application for membership and privileges. Plaintiff has been a member with surgical and obstetrical privileges since 1977, but on May 9, 1983, a partial summary suspension was imposed upon him. The propriety of that action is not in issue. Then, in the fall of 1983, plaintiff reapplied for staff membership and renewal of his surgical and obstetrical privileges. On December 15, 1983, the health center's medical staff executive committee recommended that plaintiff be reappointed to the hospital medical staff, but that plaintiff's obstetrical and surgical privileges be denied. This recommendation was adopted by the board of directors the same day. Also on that day, another committee, consisting of the medical staff president, the chief of family practice and the executive director, met and imposed a second partial summary suspension on plaintiff. On plaintiff's request, the executive committee met on February 17, 1984, and heard arguments on behalf of plaintiff but recommended denial of plaintiff's request for termination of his suspension and for renewal of privileges. On May 24, 1984, the board of directors of the health center adopted and upheld the February 17, 1984, decision of the executive committee.

Article VIII, section 4(c), of the health center's bylaws which are applicable to executive committee hearings in regard to proceedings for renewal of privileges states:

"When a hearing relates to an adverse recommendation of the executive committee, such hearing shall be conducted by an ad hoc hearing committee of not less than three (3) members of the medical staff appointed by the president of the medical staff in consultation with the executive committee, and one of the members so appointed shall be designated as chairman. No staff member who has actively participated in the consideration of the adverse recommendation shall be appointed a member of this hearing committee unless it is otherwise impossible to select a representative group due to the size of the medical staff." (Emphasis added.)

The record shows that plaintiff demanded the appointment of such an ad hoc committee but no such committee was appointed and the final determination as to plaintiff's privileges was made by a group including persons who had "actively participated in the recommendation" to deny privileges.

The health center does not deny the existence of the foregoing bylaw violation or that it would ordinarily vitiate the decision to deny privileges. However, the health center maintains that the issue of the propriety of the denial is moot here if the suspension is upheld. The suspension does prevent the plaintiff from exercise of his privileges during the existence of the suspension so that the practical advantage to the plaintiff of having privileges renewed while they are still suspended is of questionable value. However, a suspension is, by definition, a temporary rather than permanent status. Thus, for whatever advantage there is to plaintiff in having suspended privileges rather than none at all, he is entitled to such privileges. The summary judgment given plaintiff in this regard is affirmed.

In regard to the continuation of the summary suspension imposed upon plaintiff, he does not contend that the series of hearings to which he was entitled under the bylaws were not held. Rather, he maintains that the hearings were not properly conducted. Plaintiff's major complaint is that the persons who were responsible for conducting the various hearings in regard to the suspensions were generally the same people who previously or simultaneously ruled against him in regard to the question of his suspension or the closely related question of renewal of his hospital privileges. He conceded at oral argument that article VIII, section 4(c) of the bylaws providing for creation of an ad hoc committee consisting of persons who have not previously participated in the proceedings against him is not applicable to the suspension appeals procedure. Lacking a requirement that persons involved in the appeals process have not made prior rulings on the matter, we cannot conclude that the bylaws have been violated. Nor can we determine that the persons ruling necessarily have partiality or bias because of their previous contact with the matter. To the extent that a person sitting on the panel has previous contact with the case, the procedure is a request for that person to reconsider.

Plaintiff also complains that he was prejudiced at the February 17, 1984, executive committee hearing because article VIII, section 5(7) of the bylaws was not followed. That provision states:

"The executive committee, when it is responsible for the initiation of the proceedings, must appoint one of its members to represent it at the hearing, to present the facts in support of its adverse recommendation, and to examine witnesses. It shall be the obligation of such representative to present ...


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