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Garibaldi v. Applebaum

November 12, 1998

DR ABEL GARIBALDI, PLAINTIFF-APPELLANT,
v.
DR ROBERT APPLEBAUM; DR TAMMO HOEKSEMA; DR DOMINIC ALLOCCO; CARDIOVASCULAR MEDICAL CONSULTANTS, P.C., AN ILLINOIS PROFESSIONAL CORPORATION; AND SSM HEALTH CARE, D/B/A ST. FRANCIS HOSPITAL AND HEALTH CENTER, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Cahill

Appeal from the Circuit Court of Cook County

No. 93 CH 0064 and 96 CH 00661

Honorable Kathy Flannagan and Arthur L. Dunne, Judges Presiding.

We consider for the second time a dispute between a hospital and a doctor on its staff. The hospital had signed a contract in 1992 with a group of doctors, granting the group an exclusive right to perform heart surgery at the hospital. Plaintiff, a heart surgeon on the hospital staff, was not a member of the group. Although the exclusive contract prevented plaintiff from using his clinical privileges, the hospital never gave him written notice that his clinical privileges were revoked.

Plaintiff filed a three-count complaint against the hospital and the group of doctors. In count I he sought to enjoin the hospital from revoking his clinical privileges to perform heart surgery without notice and a hearing under its bylaws, despite the exclusive contract. Counts II and III were based on breach of and tortious interference with contract and sought damages. A chancellor granted the hospital summary judgment on count I, entered a finding under Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)), and transferred the contract counts to the law division.

On appeal from the ruling on count I, we reversed summary judgment for the hospital, finding that the doctor was entitled to a hearing under the hospital bylaws before the doctor's clinical privileges could be revoked. See Garibaldi v. Applebaum, 273 Ill. App. 3d 536, 653 N.E.2d 42 (1995) (Garibaldi I).

Here the matter took a twist and turn. While the appeal was pending, the legislature amended the Illinois Hospital Licensing Act. See Pub. Act 88-654, eff. January 1, 1995 (amending 210 ILCS 85/10.4 (West 1994)). The amendment directs hospitals that contemplate exclusive contracts to adopt a bylaw that specifically provides for a hearing and notice procedures to a practitioner whose privileges are affected by an exclusive contract. 210 ILCS 85/10.4 (West 1996). The amendment reads in part:

"(b)All hospitals licensed under this Act, except county hospitals *** shall comply with, and the medical staff bylaws of these hospitals shall include rules consistent with, the provisions of this Section in granting, limiting, renewing, or denying medical staff membership and clinic staff privileges.

***

(2)Minimum procedures with respect to medical staff and clinical privilege determinations concerning current members of the medical staff shall include the following:

(A)A written notice of an adverse decision by the hospital governing board.

(B)An explanation of the reasons for an adverse decision including all reasons based on the quality of medical care or any other basis, including economic factors.

(C)A statement of the medical staff member's right to request a fair hearing on the adverse decision before a hearing panel whose membership is mutually agreed upon by the medical staff and the hospital governing board. *** ***

(iii)If a hospital exercises its option to enter into an exclusive contract and that contract results in the total or partial termination or reduction of medical staff membership or clinical privileges of a current medical staff member, the hospital shall provide the affected medical staff member 60 days prior notice of the effect on his or her medical staff membership or privileges. An affected medical staff member desiring a hearing under subparagraph (C) of this paragraph (2) must request the hearing within 14 days after the date he or she is so notified. ***

(D)A statement of the member's right to inspect all pertinent information in the hospital possession with respect to the decision.

(E)A statement of the member's right to present witnesses and other evidence at the hearing on the decision.

(F)A written notice and written explanation of the decision resulting from the hearing.

(G)Notice given 15 days before implementation of an adverse medical staff membership or clinical privileges decision based substantially on economic ...


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