Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 C 6125 Samuel P. King, Judge. *fn1
Before BAUER, FLAUM, and KANNE, Circuit Judges.
DECIDED NOVEMBER 25, 1996
This appeal invites us to reconsider our divided decision in Doe v. St. Joseph's Hosp. of Fort Wayne, 788 F.2d 411 (7th Cir. 1986), concerning whether a self-employed physician with staff privileges at a hospital may bring a Title VII action alleging that the hospital's revocation of his privileges constituted unlawful discrimination. Finding Doe's holding -- that a physician may bring such an action even absent proof of an employment relationship with either the hospital or his patients -- to be irreconcilable with our later decisions in Knight v. United Farm Bureau Mut. Ins. Co., 950 F.2d 377 (7th Cir. 1991), and Ost v. West Suburban Travelers Limousine, Inc., 88 F.3d 435 (7th Cir. 1996), we overrule Doe and affirm the district court's judgment in favor of the hospital. *fn2
The plaintiff in this case is an Egyptian-born Muslim and a physician. He became affiliated with and was granted staff privileges as an anesthesiologist at Skokie Valley Hospital in 1974. Two years later Mohammed Faoud AbdAllah changed his name to Mark Alexander in what he testifies was an attempt to gain greater acceptance among the patients and staff at the hospital. In 1987, Skokie Valley Hospital merged with Rush-Presbyterian Hospital, and from then on it became known as Rush North Shore Medical Center (Rush North Shore).
After the merger, Dr. Alexander continued to have staff privileges as an anesthesiologist at Rush North Shore. As a condition of his privileges, Dr. Alexander was required to spend a specified amount of time per week "on call" to the hospital's emergency room. Rush North Shore's on-call policy, adopted in November 1985, requires a physician on call to be reachable by pager or by phone, to call the hospital within twenty minutes of being paged, to remain within forty-five minutes potential travel time to the hospital, and to come to the hospital if requested to do so by the emergency room physician on duty.
At 6:00 P.M. on February 20, 1988, a patient who had suffered a head injury rendering her comatose was brought into the Rush North Shore emergency room. The patient suffered from internal cranial bleeding and had vomited earlier, but she was breathing on her own. Shortly after her arrival at the emergency room, the patient vomited again. Dr. Patricia Bitter, the emergency room physician on duty, attempted several intubations (both through the mouth and with a fiberoptic scope through the nose) to prevent potential aspiration, but her attempts were unsuccessful. Dr. Bitter paged two on-call surgeons who could perform a tracheostomy (a surgical procedure for creating an airway through the throat). While awaiting the surgeons' responses, Dr. Bitter phoned Dr. Alexander for help.
Dr. Bitter claims that she asked Dr. Alexander to come in and assist with intubating the emergency room patient, but that he refused to report to the hospital. Dr. Alexander, on the other hand, maintains that Dr. Bitter never actually requested his presence. He contends that after Dr. Bitter called him and explained the situation, he informed her that in light of the bleeding and swelling in the patient's throat caused by her failed intubation attempts, any further efforts to intubate could prove fatal. Dr. Alexander states that he told Dr. Bitter that the patient was in need of a tracheostomy, a procedure that, as an anesthesiologist, he was not qualified to perform. He claims that he told Dr. Bitter he would remain available to come into the hospital if his particular skills were needed, but that she left him waiting on hold and never asked him to come in.
After speaking with Dr. Alexander, Dr. Bitter immediately received a call from Dr. Upendranath Nimmigadda, a surgeon whom she had paged earlier. Dr. Nimmigadda came into the hospital and performed a tracheostomy on the patient. Dr. Bitter told Dr. Nimmigadda that Dr. Alexander had refused to assist her after apprising her that Rush North Shore did not possess a suitable fiberoptic laryngoscope for nasal intubation.
Meanwhile, Dr. Alexander called the emergency room again and was put in touch with Jake Strykowski, a respiratory therapist at the hospital. Dr. Alexander asked if the emergency room patient "really needed" his help. Strykowski claims that he told Dr. Alexander that the patient was becoming increasingly unresponsive and that they had contacted Dr. Alexander because of their inability to intubate, but that Dr. Alexander claimed he did not have experience with Rush North Shore's flexible fiberoptic equipment. Strykowski states that he informed Dr. Alexander that the hospital did have the equipment that he was accustomed to, but that by that time Dr. Nimmigadda had been secured and the situation was under control.
The next day, Dr. Bitter filed a complaint concerning the incident. The hospital investigated her allegations, gathering the statements of Strykowski and Drs. Bitter, Alexander, and Nimmigadda. After consideration and deliberation by several panels of the hospital's hierarchical internal review structure, the board of trustees informed Dr. Alexander by letter that his staff privileges had been revoked for violation of the hospital's on-call policy.
Dr. Alexander filed a charge with the Illinois Department of Human Rights and with the Equal Employment Opportunity Commission, alleging that Rush North Shore had revoked his staff privileges not because he had violated the hospital's on-call policy, but because of his religion and national origin. Both the IDHR and the EEOC ...