because of a perceived conflict of interest since a centerpiece of the hearing would be the ASA Report. He agreed. Likewise, three other ASA officers or peer review committee members turned plaintiff down. We see no transgressions there. Indeed, as we have remarked before, given plaintiff's proclivity for ascribing base motives to those who do not entirely share her views, an ASA officer who did not fully support plaintiff's perceptions of her own quality of care would have done so at his peril. Available to plaintiff as experts was the whole universe of anesthesiologists other than that small group. Plaintiff enlisted the services of Dr. Heller months before he was to testify.
Dr. Wender was at SCH only two days and Dr. Blancato only a day and-a-half They had, however, considerable material to review before they arrived and they had additional material supplied to them after they left. Plaintiff talked to Dr. Wender for one and-a-half to two hours and she later supplied him with numerous records pertaining to the other anesthesiologists. She is correct that the ASA review was not a full review of all the anesthesiologists in the sense that the reviewers considered substantially the same number of records for each anesthesiologist. The hospital, after all, had asked for recommendations about certain anesthesiologists, including plaintiff. Still, they did some comparative reviewing, although whether or not they had access to all the questionable cases of the others is in dispute. Plaintiff certainly tried to make those records available to them.
More importantly, however, is that the hearing was about plaintiff's quality of care. The committee was entitled to focus on that, and it did so. And in doing so we see no substantial violations of the bylaws and no unfairness. We grant summary judgment for the hospital and against plaintiff, on the state law medical staff bylaw claims relating to the suspension.
That leaves state law claims relating to events preceding the suspension. Plaintiff complains that she was twice passed over for appointment as chair, that she was "forced" to restrict her work to part-time, that she was taken off rotation in July 1988, that she was denied return to full-time status, and that she was classified as a junior when Dr. Loeber created the "senior-junior" status. Although she claims that she continued to handle many complicated cases, at least up to going off rotation in 1988, she claims that her income was adversely affected by a reduction in cases and change in her mix of cases.
Plaintiff bases these claims on alleged violations of the medical staff bylaws, viewed as a contract between her and the hospital. Fahey v. Holy Family Hospital, 32 Ill. App. 3d 537, 336 N.E.2d 309 (Ill.App.1st 1975), cert. denied, 426 U.S. 936, 49 L. Ed. 2d 387, 96 S. Ct. 2650 (1976). She cannot base her claims upon some specific contract between her and the hospital, as there was none. Indeed, the contract between Dr. Loeber and the hospital granted her the authority to make case assignments, and it is case assignments that are the core of these claims by plaintiff. But can these claims be viewed as possible medical staff bylaws violations? Failures to appoint plaintiff as chair possibly can be viewed as such, although she did not ask for a hearing on those claims, and they have long since been waived. That is also true of her other claims, with the possible exception of her removal from rotation and failure to return her to full-time status in 1988 -- and maybe the "senior-junior" classification.
SCH insists that plaintiff was not returned to full-time status in 1988 because there was not enough work for the anesthesiologists if plaintiff was given more cases -- or so Dr. Loeber believed. Quite possibly this is so, but plaintiff disputes that, and we cannot, on the present record, conclude that the hospital is indisputably correct. By then the quality-of-care issue had long since surfaced and the "senior-junior" classification was in place. The ASA Report clearly concludes that the "senior-junior" classification implicates the medical staff bylaws.
Still, we are mindful that there is a significant difference between privileges and employment. Bryant v. Glen Oaks Medical Center, 272 Ill. App. 3d 640, 650 N.E.2d 622, 208 Ill. Dec. 928 (Ill.App.1st 1995). Privileges relate to qualifications, while employment is a matter of contract, Faucher v. Rodziewicz, 891 F.2d 864 (11th Cir. 1990); Collins v. Associated Pathologists, Ltd., 844 F.2d 473 (7th Cir. 1988). That there may have been a practice of equalizing assignments does not create an employment obligation, Knapp v. Palos Community Hospital, 125 Ill. App. 3d 244, 465 N.E.2d 554, 80 Ill. Dec. 442 (Ill.App.1st 1984), app. after remand, 176 Ill. App. 3d 1012, 531 N.E.2d 989, 126 Ill. Dec. 362 (Ill.App.1st 1988), app. denied, 125 Ill. 2d 566, 130 Ill. Dec. 481, 537 N.E.2d 810 (Ill. 1989), Dr. Paulissian, testifying for plaintiff, recognized that Dr. Loeber could make assignments based on perceptions of relative competency and Dr. Heller agreed that assignment by a department head on that basis was a common and accepted practice.
Even if we assume, however, that the "senior-junior" classification was a violation of bylaws, plaintiff still does not prevail. We have already noted the reluctance of the Illinois courts to intervene in disputes relating to hospital staffing judgments and that even when the issue is reduction of privileges the sole remedy is another hearing. Judicial review of assignment practices is even more intrusive, and plaintiff points to no Illinois case that provides support for the view that restrictions upon a physician's practice, short of the suspension of privileges, triggers judicial review. The only possible exception is Fahey, supra, but there the hospital conceded that a rule implicated the bylaws and the court held that the rule was permissible even absent a hearing.
If we were to direct that a hearing be held that related to case assignments prior to the suspension, we would, in effect, be requiring the hospital to reconsider its assignment practices several years ago, without any possible economic benefit to plaintiff. We are not aware of any Illinois law so requiring, and, as a federal court sitting in diversity, we should not be creating remedies not sanctioned, with reasonable clarity, by that controlling law. Indeed, the most analogous Illinois Supreme Court case. Adkins, supra, strongly suggests by implication that the upholding of a suspension wipes away any claims peripheral to the suspension claim. We grant summary judgment for the hospital and against plaintiff on Count IV.
This case began with a suspicion arising from the separation of all three of the Asian women anesthesiologists from the hospital. Despite massive discovery the discrimination claim has never advanced beyond suspicion, and it was that claim that has been the core of this lawsuit. If a plaintiff can prove the articulated cause of privileges suspension, concerns about quality of care, is a pretext, the trier of fact has some latitude in inferring that the real motive was discriminatory, Anderson v. Baxter Healthcare Corp., supra. But here plaintiff has not come up with evidence that would permit a reasonable trier of fact to conclude that the articulated cause was a pretext. We cannot know with certainty what various people may have thought. It is not enough, however, to raise the possibility that the suspension of privileges may have been the result of base motives when the evidence corroborates the reasons given. Plaintiff has the burden of proving her case by a preponderance of the evidence, and that means something beyond "maybe" and "perhaps." We grant summary judgment for the defendants and against plaintiff on the remaining counts of the complaint. We deny plaintiff's motion for partial summary judgment.
JAMES B. MORAN
Senior Judge, U.S. District Court
November 18, 1997.
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the court enters summary judgment in favor of the defendants, SWEDISH COVENANT HOSPITAL ET AL. and against the plaintiff, USHA VAKHARIA, M.D.
November 18, 1997