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12/08/89 Northwest Community v. Northwest Community

December 8, 1989

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION IRWIN K. CARSON, PLAINTIFF-APPELLANT

v.

NORTHWEST COMMUNITY HOSPITAL ET AL., DEFENDANTS-APPELLEES



548 N.E.2d 579, 192 Ill. App. 3d 118, 139 Ill. Dec. 194 1989.IL.1919

Appeal from the Circuit Court of Cook County; the Hon. Charles E. Freeman, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ and COCCIA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

Plaintiff, Irwin K. Carson, appeals from the dismissal of his complaint against defendants Northwest Community Hospital, Rollo Nesset, James Cox, Ralph Lidge, Robert Alfini, David Bakken, Wilton Bunch, Kris Howard, Joseph Vavra, John Woods, Edwin Bruning, Don Torisky, Mark Beaubien, Thomas Kim, Miles Lynch, Blaine Yarrington, Robert H. Bukowski, Dennis Brown, Malcolm MacCoun, Burton Chotiner and Charles Kennedy, following the summary suspension of his hospital staff privileges.

In his four-count complaint plaintiff sought a mandatory injunction that he be reinstated to full staff privileges at the hospital and damages for breach of contract, tortious interference with contractual relations and violation of the Antitrust Act (Ill. Rev. Stat. 1985, ch. 38, par. 60-1 et seq.). The issue presented on appeal is whether the trial court improperly dismissed plaintiff's complaint.

Plaintiff's complaint alleged that he was a physician and board-certified specialist in orthopedics when he became a full staff member of the hospital in 1976. In August 1984, the secretary of the medical executive committee notified plaintiff that a request for corrective action had been filed against him with regard to a "'series of surgical cases.'" The following month, the committee informally interviewed plaintiff. Afterwards, it issued recommendations that he be placed in a two-year probation; that his cases be reviewed; that he obtain consultation before performing further surgery; and that his surgical cases be monitored pending a hearing on the charges against him.

The complaint further alleged that on October 9, 1984, during a telephone conversation with the chief administrator of the hospital, plaintiff was advised that his surgical privileges had been summarily suspended and that the suspension was immediately effective. The disciplinary action was taken because plaintiff had failed to obtain consultants on surgical patients and the hospital had questions regarding a patient upon whom plaintiff had performed surgery. On October 10, 1984, plaintiff submitted a written request to the secretary of the medical staff for a hearing. The following day, plaintiff filed his initial complaint seeking injunctive and other relief. After the court dismissed that portion of the complaint seeking injunctive relief, plaintiff amended his complaint.

Plaintiff further alleged that he requested a hearing before the medical executive committee on his summary suspension. Two days after he met with the committee, the latter issued a decision sustaining plaintiff's summary suspension on the basis that he had exhibited inadequate preoperative decision making and provided inadequate post-operative care and "'problems relating to a recent patient who suffered a multiple fracture and degloving injury.'" The committee indicated that the suspension "'was taken in the interest of protecting the life and well being of patients'" at the hospital.

According to plaintiff's complaint, he requested a hearing to refute the decision. A panel composed of five physicians who were plaintiff's peers convened nine times over six months to hear plaintiff's case. Over plaintiff's objection, counsel for the hospital provided legal assistance to the panel. Plaintiff was also represented by counsel. The committee entered a decision which found that the summary suspension had been properly entered but that it would be lifted conditioned upon plaintiff's completion of a continuing education course on management of orthopedic infection and submission to supervision, review, consultation and assistance of his surgical procedures for one year, at which time another hearing panel would review his performance and make recommendations to the medical executive committee. Thereafter, the attorney for the hospital issued a summary of the evidence heard by the panel and its decision. When the board of directors of the hospital met in executive session, it rejected the recommendation of the panel and reinstated plaintiff's summary suspension.

We shall now consider plaintiff's contention that the trial court improperly dismissed the first count of his complaint on the ground that the claim was barred by other affirmative matters. Plaintiff had sought a mandatory injunction reinstating him to full staff privileges. We first observe that section 2-619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-619(a)(q)) provides for the dismissal of an action on the ground that the claim is barred by "other affirmative matter avoiding the legal effect of or defeating the claim." The affirmative matter must be more than evidence to dispute a material issue of fact. It must completely dispose of the cause of action or rebut crucial Conclusions of law or Conclusions of material fact unsupported by allegations of specific facts contained or inferred from the complaint. (Downers Grove Associates v. Red Robin International, Inc. (1987), 151 Ill. App. 3d 310, 315, 502 N.E.2d 1053.) The scope of judicial review is limited in a case where a physician whose staff privileges at a private hospital have been revoked and he seeks reinstatement. The court may only determine whether the hospital has complied with its bylaws in taking the disciplinary action. (Jain v. Northwest Community Hospital (1978), 67 Ill. App. 3d 420, 424, 385 N.E.2d 108.) Further, the revocation of staff privileges made pursuant to hospital bylaws will only be reviewed and set aside if arbitrary, capricious or unreasonable. Lapidot v. Memorial Medical Center (1986), 144 Ill. App. 3d 141, 146, 494 N.E.2d 838.

Here, the trial court found that plaintiff was accorded procedural due process, in that he was given notice, an opportunity to be heard, and representation by counsel at his disciplinary hearing. The trial court also concluded that the hospital substantially complied with its bylaws in suspending plaintiff. As we have indicated, the scope of judicial review in the case herein is strictly limited to ascertaining whether the hospital complied with its bylaws in rendering its decision. Where the court finds noncompliance its sole available remedy is to order compliance and not reinstatement of plaintiff. Under the circumstances, we believe that the trial court's order was proper.

Plaintiff also asserts that the trial court erroneously dismissed counts II and IV of his complaint which sought damages for tortious

"All information, interviews, reports, statements, memoranda or other data of . . . committees of licensed or accredited hospitals or their medical staffs . . . used in the course of internal quality control or of medical study for the purpose of reducing morbidity or mortality, or for improving patient care, shall be privileged, strictly confidential and shall be used only for medical research, the evaluation and improvement of quality care, or granting, limiting or revoking staff privileges, except that in any hospital proceeding to decide upon a physician's staff privileges, or in any judicial review thereof, the claim of ...


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