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CHAWLA v. KLAPPER

July 2, 1990

JAG M. CHAWLA, D.D.S., Plaintiff,
v.
LEWIS KLAPPER, D.D.S., LOYOLA UNIVERSITY OF CHICAGO, a not-for-profit corporation, and the LOYOLA DENTAL SCHOOL, it division, Defendants



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE

 Before the court is the motion of defendants, pursuant to Fed. R. Civ. 12(b)(1) and 12(b)(6), for judgment on the pleadings with respect Counts II, IV, V and VI of the Complaint of plaintiff, Dr. Jag Chawla.

 This motion for judgment on the pleadings, which does not rely upon matters outside the pleadings, see Fed. R. Civ. P. 12(c), is treated as a motion to dismiss. On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Id. The complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Development Co., 758 F.2d 203, 207 (7th Cir. 1985). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transport Services, Inc., 795 F.2d 591, 594 (7th Cir. 1986).

 Dr. Chawla, a male East Indian and a licensed dentist, was hired by Loyola University of Chicago in November 1982 as an Assistant Professor of Orthodontics in Loyola's School of Dentistry. Complaint para. 3. Dr. Chawla's appointment as an Assistant Professor was renewed by a series of one year contracts for the academic years 1983-84 through 1988-89. Complaint para. 12. The Loyola School of Dentistry is a division of Loyola University of Chicago and is part of the Loyola Medical Center. Complaint para. 4. A substantial portion of Dr. Chawla's responsibility at Loyola involved the proper delivery of dental treatment and care to patients at the Loyola Dental Clinic. Complaint paras. 21, 25.

 Dr. Klapper is, and at the time of Dr. Chawla's hiring was, the Chairman of the Department of Orthodontics at Loyola's School of Dentistry. He was Dr. Chawla's immediate supervisor. Complaint para. 5. As the department chairman, Dr. Klapper was initially responsible for the performance evaluations and recommendations as to promotion, tenure, and termination for Dr. Chawla and the other doctors within the department. Complaint para. 14. Dr. Klapper's evaluations and recommendations were provided to the Dean of the School of Dentistry, the Committee on Faculty Appointments and to the Provost of the Medical Center as the initial step in the process employed to render decisions on promotion, tenure, and termination of faculty. Complaint para. 14. Dr. Klapper gave the Dean, the Committee on Faculty Appointments and the Provost unfavorable reviews of Dr. Chawla's performance as an assistant professor and progress towards an advanced degree. Complaint paras. 18-27. As a result of the information and evaluations obtained in the process utilized by Loyola, the Committee on Faculty Appointments informed Dr. Chawla that his employment would be terminated as of June 30, 1989, the end of the 1988-89 academic year. Complaint paras. 29, 31.

 Plaintiff filed his complaint in 1989 alleging federal law and pendent Illinois state law claims for: (i) violation of the Equal Pay Act, 29 U.S.C. § 206(d)(1); (ii) race discrimination in violation of 42 U.S.C. § 1981; (iii) breach of contract; (iv) tortious interference with professional and contractual relationship; (v) tortious interference with prospective economic advantage; and (vi) defamation. *fn1"

 In Counts IV through VI, which are the subject of this motion, plaintiff alleges that, between March, 1986 and October, 1988, Dr. Klapper made actionable oral and written statements which caused plaintiff to suffer damages. Defendants assert that, as a matter of law, any statements Dr. Klapper made are privileged under Illinois law, and consequently cannot constitute the basis for any tort action. *fn2" Defendants also assert that Dr. Chawla cannot maintain his race discrimination action under 42 U.S.C. § 1981, given the United States Supreme Court's recent decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989). The court will address these issues seriatim.

 Counts IV through VI -- Privilege or Immunity Under Illinois Law

 The first issue before the court is whether, under Illinois law, statements made by a dentist to a peer review committee *fn3" of a dental school for the purposes of evaluating an individual's performance as an instructor in the dental school and progress towards an advanced degree are privileged. *fn4"

 Dr. Klapper claims that the statements he made are privileged under the Illinois Medical Study Act, Ill. Rev. Stat. ch. 110, paras. 8-201, 2102 and that, in the alternative, to allow liability, under Counts IV through VI, to be founded upon the statements would be contrary to Illinois public policy of encouraging peer review by health care providers, as enunciated in the Illinois Medical Practice Act, Ill. Rev. Stat. ch. 111-1/2, para. 151.2. Dr. Chawla counters (1) that the Illinois Dental Practice Act, Ill. Rev. Stat. ch. 111, para. 2354, applies to dentists, and does not exempt Dr. Klapper from liability under these circumstances; and (2) that neither the Illinois Medical Study Act nor the Illinois Medical Practice Act apply either to dentists or to Loyola University of Chicago. *fn5"

 Because this case involves statements made by a dentist in the course of the peer review of a dentist, the starting point in our inquiry will be the act with obvious applicability -- the Illinois Dental Practice Act. The pertinent portions of the Illinois Dental Practice Act provide as follows:

 
2354. Exemption from civil liability for peer review committees
 
§ 2354. Exemption from Civil Liability for Peer Review Committees. While serving upon any Peer Review Committee, any dentist shall not be liable for civil damages as a result of his or her decisions, findings or recommendations in connection with his or her duties on such committee, except decisions, findings or recommendations involving his or her wilful or wanton misconduct. Furthermore any professional organization, association or society of dentists, or component thereof, which sponsors, sanctions or otherwise operates or participates in peer review activities is hereby afforded the same privileges and immunities afforded to any member of the peer review committee.

 Ill.Rev.Stat. ch. 111, para. 2354 (eff. Jan. 1, 1988). Dr. Chawla contends that the Illinois Dental Practice Act governs, and that it does not exempt Dr. Klapper from liability because he was not "serving upon any Peer Review Committee" and because the Dental Practice Act does not grant a ...


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