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ALEXANDER v. RUSH NORTH SHORE MED. CTR.

May 6, 1994

DR. MARK F. ALEXANDER, Plaintiff,
v.
RUSH NORTH SHORE MEDICAL CENTER, Defendant.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

The plaintiff, Dr. Mark Alexander, filed suit in this court alleging that the defendant, Rush North Shore Medical Center ("Rush" or "the hospital") violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII") by terminating his staff privileges at Rush. Rush moves this court for summary judgment, arguing that (1) Title VII does not protect Dr. Alexander because he is not an employee of defendant and (2) as a matter of law, Dr. Alexander cannot demonstrate that Rush considered Dr. Alexander's race, color, or religion when it revoked his staff privileges. For the reasons set forth below, this court grants Rush's motion in part and denies it in part.

 I. STATEMENT OF FACTS

 From 1976 to 1988, Dr. Alexander, an anesthesiologist, enjoyed staff privileges at Rush. (Plaintiff's Additional Facts Requiring Denial of Summary Judgment ("Pl.'s 12(n) Stmt.") at P 1) As part of the responsibilities of maintaining staff privileges at Rush, an anesthesiologist must spend a portion of his time "on-call." (Id. at P 4) If an emergency room doctor requests an on-call doctor to go to the hospital and to assist with a patient, the doctor must comply with the request as a condition of maintaining staff privileges. (Id.) Rush terminated Dr. Alexander's privileges because, Rush asserts, he failed to comply with such a request on February 20, 1988. (Mot. for Sum. J. at P 3)

 On February 20, 1988, an emergency room physician, Dr. Patricia Bitter, was treating a patient who suffered a head wound. (Stmt. of Undisputed Facts in Support of Defendant's Motion ("Def.'s 12(m) Stmt.") at P 13) Dr. Bitter was concerned that the patient's breathing would become obstructed. (Id. at P 14) She therefore attempted to secure an airway for the patient by performing an endotracheal intubation. (Id. at P 15) After her unsuccessful attempt to intubate, she contacted Dr. Alexander, who was the on-call anesthesiologist. (Id. at PP 17, 21) Dr. Bitter alleges that she requested Dr. Alexander to come to the hospital to assist, and he refused. (Id. at PP 24-26) Dr. Alexander has consistently contended that Dr. Bitter never requested his presence. (Pl.'s 12(n) Stmt. at P 10; Plaintiff's First Amended Complaint ("Compl.") at P 16)

 After this conversation, Dr. Bitter spoke with Dr. Upendranath Nimmagadda. (Def.'s 12(m) Stmt. at P 19) According to Dr. Nimmagadda, Dr. Bitter told him that the anesthesiologist refused to assist her after he had apprised her that Rush did not own a suitable fiber optic laryngoscope. (Id., Exhibit C, tab 11 (Dr. Nimmagadda's letter to the hospital describing the incident 3 days after its occurrence); deposition testimony of Nimmagadda at 60-61) Dr. Bitter expressed her exasperation at her inability to procure assistance for the patient by exclaiming "no body wants to come here to help." (Def.'s 12(m) Stmt., Ex. C, tab 11) Dr. Nimmagadda went to the hospital and performed a tracheotomy on the patient. (Id.)

 Meanwhile, Dr. Alexander had too contacted another medical professional associated with the hospital. Dr. Alexander contacted the respiratory therapist, Jake Strykowski. According to Strykowski, Dr. Alexander asked Strykowski whether the patient "really needed" Dr. Alexander's help. (Dep. of Strykowski at 45) Strykowski told him that the patient was becoming increasingly unresponsive and they called Dr. Alexander because of their inability to secure an airway through intubation. (Id. at 44, 76-77) Dr. Alexander advised Strykowski that he did not have experience with the type of flexible fiberoptic equipment that Rush used. (Def.'s 12(m) Stmt. at P 33) Strykowski contends that he then told Dr. Alexander that Rush did in fact have the equipment with which Dr. Alexander has experience, and the conversation terminated. (Dep. of Strykowski at PP 12, 46, 66) Dr. Alexander did not contact anyone else at the hospital that evening and did not go to the hospital to assist with the patient. (Def.'s 12(m) Stmt. at 27)

 The next day, Dr. Bitter spoke to Dr. Abraham Chervony and lodged a complaint about the incident. (Id. at PP 11, 25) The hospital, through Dr. Chervony, investigated the allegations. (Id. at P 30) The hospital gathered the statements of Drs. Bitter, Nimmagadda, Alexander, and Strykowski. (Id. at PP 30, 32, 39) Upon reviewing these written statements and listening to testimony, the Rush Medical Committee Board ("MCB") agreed with Dr. Bitter and concluded that she had requested Dr. Alexander's assistance. (Id. at P 44) Consequently, it voted to revoke Dr. Alexander's staff privileges. (Id. at P 46) The Medical Appeals Board at the hospital agreed with the MCB's factual findings, yet believed revocation of staff privileges to be too harsh of a disciplinary measure. (Id. at PP 51-52) The Board of Trustees, the final decisionmaker, reviewed the evidence and also concluded that Dr. Alexander failed to respond to a request for assistance. (Id. at PP 47, 54) It, however, agreed with the MCB as to the appropriate discipline and revoked his privileges. (Id.) Thus, approximately 32 people reviewed the evidence and concluded that Dr. Bitter summoned Dr. Alexander and Dr. Alexander refused. (Id. at P 43) Dr. Alexander filed suit pursuant to Title VII, alleging that the hospital did not terminate his privileges because it believed Dr. Bitter's version of the incident, but rather, because he is Egyptian, because he is a member of the Muslim faith, and/or because the color of his skin is brown. After discovery, Rush filed this motion for summary judgment.

 II. DISCUSSION

 A. Whether Title VII Protects Non-Employee Doctors against Discriminatory Decisions with Respect to Staff Privileges

 Rush first argues that because Dr. Alexander was not an employee of Rush, Title VII does not protect him from discrimination. Doctors, however, need not be employed by a hospital to merit protection under Title VII. Doe v. St. Joseph's Hosp., 788 F.2d 411, 422-25 (7th Cir. 1986); Vakharia v. Swedish Covenant Hosp., 765 F. Supp. 461, 463-69, (N.D. Ill. 1991); Ellerby v. Illinois Circuit Court, 46 Fair Emp. Prac. Cases (BNA) 524,526 (N.D. Ill. 1988); cf. Pelech v. Klaff-Joss, LP, 815 F. Supp. 260, 263 n.3 (N.D. Ill. 1993) (Judge Aspen noting that the Seventh Circuit in dicta has cast doubt as to the validity of Doe, but holding that District Courts are bound by Doe until the Seventh Circuit reexamines its position). A plaintiff-doctor merits Title VII protection if the hospital controlled the doctor's employment opportunities. E.g., St. Joseph's Hosp., 788 F.2d at 423-24. A hospital controls these opportunities through the bequest of staff privileges; without these privileges, a doctor cannot treat the hospital's patients. Vakharia, 765 F. Supp. at 466-68. Thus, a hospital incurs Title VII liability by revoking staff privileges for discriminatory reasons. Id. at 466, 469 (expressly holding that Title VII prohibits a hospital from revoking the staff privileges of an anesthesiologist). Title VII applies in this case because Rush revoked Dr. Alexander's staff privileges.

 Rush responds by arguing that Alexander has not alleged any actionable employment relationship and a plaintiff cannot rely on facts outside of the pleadings on a motion for summary judgment. (Def's Reply Br. at 5 (citing Samuels v. Wilder, 871 F.2d 1346, 1349-50 (7th Cir. 1989))) Dr. Alexander's complaint, however, does sufficiently plead an employment relationship with Rush's patients and subsequent interference with that relationship by Rush. See FED. R. CIV. P. 8(a) (requiring "short and plain statement"). Dr. Alexander alleges that he "worked exclusively for Rush patients." (Compl. at P 14) He further alleges that "Rush at all times had the ability to terminate [him]" and that Rush did in fact terminate his staff privileges. (Compl. at PP 14, 17, 19, 22) This language conveys an allegation that Rush interfered with Dr. Alexander's relationship with the Rush patients, for whom he worked exclusively, by revoking his privileges. Thus, Rush's motion is denied as to the grounds that Dr. Alexander did not adequately allege an employment relationship with Rush patients.

 B. Whether the Plaintiff Can Demonstrate that the Defendant Intentionally Discriminated Against Him Because it Terminated Him Without an Honest Belief as to His Misconduct

 Rush argues that it is entitled to judgment because, as a matter of law, Dr. Alexander cannot demonstrate that it intentionally discriminated against him. (Mot. for Sum. J. at P 3) In a Title VII case based on a theory of disparate treatment, a plaintiff can establish a prima facie case by demonstrating by a preponderance of the evidence that (1) the plaintiff was a member of a protected class, (2) the plaintiff was meeting the employer's legitimate expectations (3) but was nonetheless discharged, and (4) the employer sought a replacement. Hong v. ...


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