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VAKHARIA v. SWEDISH COVENANT HOSP.

June 8, 1993

USHA VAKHARIA, M.D., Plaintiff,
v.
SWEDISH COVENANT HOSPITAL, et al., Defendants.


MORAN


The opinion of the court was delivered by: JAMES B. MORAN

Before us now are three motions by plaintiff. In her first motion she asks the court to reconsider its ruling dismissing her discrimination claims against several defendants named for the first time in her amended complaints (detailed in count V of her second amended complaint). In her second motion she asks the court to reconsider its dismissal of portions of her antitrust claim (detailed in count VI). In her third motion, submitted pursuant to Fed.R.Civ.P. 56(f), plaintiff asks for leave to conduct depositions of certain individuals prior to responding to defendants' motion for summary judgment. Her first and third motions are granted in part and denied in part. Her second motion is denied.

 DISCUSSION

 Count V

 This court has dismissed plaintiff's Title VII claims against several defendants because plaintiff failed to charge them within the applicable limitations period. See Vakharia v. Swedish Covenant Hospital, 90 C 6548, slip op. at 6 (N.D.Ill. March 31, 1993). Invoking the doctrine of equitable tolling, plaintiff argues that she should not be barred from suing the dismissed defendants because they participated in various administrative proceedings at the hospital and thereby misled her into thinking that her medical staff privileges might be restored. Her argument is unpersuasive. Although, as a general rule, the doctrine of equitable tolling is applicable to Title VII cases, Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 71 L. Ed. 2d 234, 102 S. Ct. 1127 (1982), the decision by potential adversaries in a Title VII case to participate in administrative proceedings does not trigger it. International Union of Electrical, Radio & Machine Workers, AFL-Cio Local 790 v. Robbins & Myers, Inc., 429 U.S. 229, 236 (1976); Lever v. Northwestern University, 979 F.2d. 552, 556 (7th Cir. 1992), pet. for cert. filed, 61 USLW 3732 (April 8, 1993).

 In its order of March 31, 1993, this court noted that plaintiff's amended complaints were filed within the applicable limitations period to the extent that they alleged a claim under 42 U.S.C. § 1981 against members of the hospital's board of directors for impeding plaintiff's efforts to form new contracts with patients. Vakharia, 90 C 6548, slip op. Plaintiff now indicates that two defendants who were named in the amended complaints, Arthur Peterson and Edward Cucci, were dismissed erroneously from count V because she neglected to identify them as board members. Because defendants do not deny that Peterson and Cucci were board members, and because both have received adequate notice of the § 1981 claims against them, plaintiff's motion to reconsider must be granted with respect to them. However, plaintiff may proceed under count V against them only to the extent that they may be liable under § 1981, along with other named members of the board of directors, for impeding her efforts to form new contracts with patients.

 Count VI

 In the same memorandum and order this court held that plaintiff could proceed with part of her antitrust claim under section 1 of the Sherman Act. Several distinctions were drawn, however, that significantly restricted the scope of her surviving claim. Id. at 17-20. Most of the defendants were dismissed from count VI because they could not be considered co-conspirators, and plaintiff's claim was a conspiracy claim. And, while the portion of the claim based on the hospital's decision to terminate plaintiff was spared, the portions of her claim based on the hospital's other acts, including its establishment of a "multi-tiered" system for assigning patients, were dismissed. Now plaintiff asks the court to allow her to pursue her antitrust claim against all defendants named in the second amended complaint and, in addition, she tentatively seeks permission to pursue an independent antitrust claim based on the multi-tiered system for assigning cases. As this court has indicated, the results plaintiff desires are foreclosed by several supreme Court and Seventh Circuit decisions (cited in the March 31, 1993 order). Intra-corporate dealings of the sort alleged cannot constitute conspiracies, and claims premised on the restriction of competition within a single hospital are not cognizable under the federal antitrust laws.

 Perhaps the hospital's establishment of a multi-tiered system of assigning cases was, as plaintiff says, a "step in the process that culminated in Dr. Vakharia's total loss of privileges." Even if true, however, that fact cannot justify granting plaintiff's motion to reconsider the partial dismissal of count VI, although it might constitute probative evidence concerning her antitrust claim based on the hospital's hindering her efforts to find placement elsewhere. Because trial is a long way away, the court need not resolve that evidentiary issue at this time.

 Motion Pursuant to Fed.R.Civ.P. 56(f)

 Defendants have filed a motion for summary judgment on the first four counts. That motion is supported by three affidavits, from Dr. James B. McCormick, president of the hospital; Dr. Nancy Loeber, former chairman of the anesthesia department; and Dr. Alan Rogin, chairman of the ad hoc hearing committee. The thrust of that motion is that Dr. Loeber was brought in because of concerns about the quality of anesthesiological services, that she performed a performance audit of plaintiff and had concerns about a number of cases, that those concerns were not satisfactorily resolved but in the meantime plaintiff chose to go on part-time status, that thereafter the department was reorganized so as to have senior anesthesiologists for the more serious cases and junior anesthesiologists for the less serious cases, that (apparently) plaintiff was classified by Dr. Loeber as a junior anesthesiologist, that thereafter plaintiff sought to return to full-time status as a senior anesthesiologist, that Dr. Loeber then determined that the caseload would not support another full-time anesthesiologist in either classification and that plaintiff had not demonstrated sufficient proficiency for "senior" cases, that plaintiff objected, and that led to a review of the performance of Dr. Vakharia and ultimately of the entire department. That review began with Dr. Loeber, who came up with approximately 66 cases of plaintiff's in which Dr. Loeber believed the total care had been in one way or another inadequate. Plaintiff then requested the Medical Executive Committee (MEC) for return to full-time status. The MEC appointed a committee which considered the situation and reported to the MEC. The MEC concluded that another full-time position was not justified, but did not take a position on the quality-of-care issues. It decided, rather, to retain an independent consultant to evaluate plaintiff's work, and later that review was expanded to include the entire department. It was performed by two doctors selected by the ASA and under the auspices of that organization. The review, as it pertained to plaintiff, included 43 cases involving major complications and 24 randomly selected cases, material submitted by plaintiff, and various interviews at the hospital, including extensive interviews of plaintiff. The report, issued in June 1989, included the recommendation that the medical staff privileges of Dr. Vakharia, as well as those of two other anesthesiologists, should not be renewed.

 The hospital then gave plaintiff the option of resignation or summary suspension. Since plaintiff did not resign she was summarily suspended, and that triggered a hearing before an ad hoc committee of the MEC consisting of five physicians and a hearing officer. Attorneys were involved, for the most part, only in an advisory capacity. The hearings spanned 17 days and generated 3130 pages of testimony and argument, 38 exhibits from the hospital and over 200 from plaintiff. Dr. McCormick, Dr. Loeber, Janice Anderson and Dr. Wender (one of the ASA reviewers) testified at length, and plaintiff had 21 witnesses. The committee upheld the suspension and the MEC adopted the recommendation on May 9, 1990. That decision was appealed to the hospital's board, which appointed a review committee. That committee reviewed the lengthy submissions and the record and, on September 7, 1990, issued a 21-page report recommending that the MEC decision be adopted by the board, and it did so on September 12, 1990.

 We recite the defendants' summary judgment contentions at some length because they have a bearing on the pending motion. Plaintiff wants to take the depositions of at least 19 persons prior to responding to the motion. Defendants do not see why any are necessary but, in any event, they should not extend beyond the three affiants. We begin by noting that plaintiff is entitled to a reasonable opportunity to conduct necessary discovery on her claims prior to responding to the summary judgment motion. At the same time, we note that this court has the obligation, pursuant to Rule 26, to control discovery so that it is not unduly burdensome and expensive. That obligation has been increasingly emphasized of late and concerns about discovery abuse underlie both the Civil Justice Reform Act direction that district courts adopt plans and the proposed amendments to the Federal Rules of Civil Procedure. Those proposed amendments, specifically Rule 30, would establish a maximum of ten depositions by a party as the norm for civil cases and that a witness once deposed should not normally be deposed again. Here the plaintiff seeks 19 depositions just for starters, including depositions of witnesses who were questioned at length in the ad hoc committee hearing. It is an ambitious program to depose virtually everyone who had or may have had some relationship to the process during which plaintiff's practice was curtailed and (considerably more significant in terms of the amount in controversy) thereafter suspended. And it goes too far in light of the position advanced by the defendants and the rather weak justifications advanced by plaintiff.

 The motion relates primarily to the employment discrimination claims. Defendants say that plaintiff's troubles up to the suspension time stem from decisions made by Dr. Loeber. Janice Anderson was, it appears conceded, involved in securing information leading up to some of those decisions. Dr. McCormick was also knowledgeable about that period. Dr. Loeber and Dr. McCormick are affiants and plaintiff may depose them, but with due regard for the fact that they previously testified before the ad hoc hearing committee. Janice Anderson also testified there and plaintiff has presented no substantial reason why she must be questioned again. Plaintiff has presented no substantial reason to question that Dr. Loeber was the ultimate decisionmaker during that period or that others tainted the information upon which Dr. Loeber claimed she replied. We therefore see no reason to depose Karen Filopowski at this time. Dr. McCormick was familiar with hospital needs during that period. Judith Borenstein participated in the May 7, 1988 discussion of needs and assisted in providing information for the ASA review. We think ...


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