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Botvinick v. Rush University Medical Center

July 24, 2009


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:06-cv-02054-Ronald A. Guzmán, Judge.

The opinion of the court was delivered by: Tinder, Circuit Judge


Before BAUER, SYKES, and TINDER, Circuit Judges.

After Bradley Botvinick completed his residency in anesthesiology at Rush University Medical Center ("Rush"), he obtained employment with Anesthesiology Associates of Dunedin ("AAD"), a Florida doctors' association. Botvinick lost that job, however, when the hospital where AAD doctors practice denied Botvinick's application for clinical privileges. Believing that Rush sabotaged his application by feeding the hospital false, petty information about his reputation, Botvinick sued Rush and several of its doctors for tortious interference with his expectation of employment. The district court granted the defendants' motion for sum-mary judgment, concluding that Botvinick lacked evidence that the defendants interfered with his application for privileges. We agree with the district court that Botvinick failed to create a genuine issue of material fact on his tortious interference claim and, accordingly, affirm.

I. Background

Botvinick was a resident in Rush's anesthesiology department from 2004 to 2005. Although Botvinck's clinical skills were solid, his professional reputation came under fire amid a departmental scandal involving sex, lies, and possibly identity theft. In December 2004, Dr. Heather Nath, an attending physician at Rush, received an uninvited delivery of sexually explicit items from the "Lover's Lane" company. Nath, unamused by this sophomoric prank, complained to the department head and decided to do a little investigating of her own. Nath's first clue as to the prankster's identity was the Lover's Lane delivery invoice, which conspicuously identified "Brad Botvinick" as the purchaser.

Botvinick countered with evidence that he was framed. Rush's data processing department had tracked down the computer used to place the Lover's Lane order, and Botvinick claimed that he was nowhere near that computer, or even in the same building, at the time of the order. Botvinick deduced that the real culprit stole his credit card and used it to go on a Lover's Lane online spending spree. Rush apparently either accepted this explanation or simply dropped the matter, as Rush never took formal disciplinary action against Botvinick in connection with this sex-toy scandal.

Near the end of his residency, Botvinick entered into an employment contract with AAD, an association of doctors who practice at two Florida hospitals connected to Morton Plant Mease Health Care ("Morton"). Since AAD doctors work at Morton, Botvinck's employment at AAD depended on receiving clinical privileges to practice at Morton. In April 2005, Morton gave Botvinick temporary privileges in connection with his new job at AAD, and Botvinick began Morton's application process for permanent privileges. Among the references that Botvinick provided to Morton's credential committee were Drs. David Rothenberg and Kenneth Tuman, attending physicians at Rush. Botvinick assumed that Morton, in turn, sent Rothenberg and Tuman evaluation forms to complete. Dr. Anthony Ivankovich, Botvinick's supervisor at Rush, also sent Morton a letter regarding Botvinick's qualifications.

After completing Rush's residency program in June 2005, Botvinick was set to move out to Florida for his job with AAD. Morton's credential committee, however, would soon upset Botvinick's career plans. On August 1, Botvinick received a phone call from Dr. Bruce Fagan, the head of AAD's anesthesiology department, who said that Morton had received negative evaluations on Botvinick. The next day, Botvinick received another phone call from Dr. Bernard Macik, a member of Morton's credential committee, who also referred to negative evaluations and informed Botvinick that Morton was suspending his temporary privileges. Botvinick testified that he assumed that these negative evaluations came from Rothenberg and Tuman, although he acknowledged that Macik did not identify the source of the negative information.

At that point, Botvinick's prospects for privileges at Morton were looking grim, but Morton had not yet completed its evaluation. Dr. Richard Shea, also a member of Morton's credential committee, requested to speak with Ivankovich about Botvinick. On August 15, Shea faxed Ivankovich a "Release and Immunity" that Botvinick signed in connection with his application to Morton. That release extended "absolute immunity" to third parties like Ivankovich who provided information regarding Botvinick's professional competence and character. Confident with the release's assurance that Botvinick had "agree[d] not to sue" him for statements made to Morton, Ivankovich had a phone conversation with Shea about Botvinick's application. Whatever Ivankovich said was apparently insufficient to convince Shea that Botvinick was Morton material, for Morton soon sent Botvinick a letter stating that it was not inclined to grant his application for permanent privileges. Botvinick then withdrew his application, fearing that a formal denial would appear in a national database and permanently taint his professional reputation.

On March 3, 2006, Botvinick filed a complaint in Illinois state court against Rush, Ivankovich, Rosenberg, Tuman, Nath, and Dr. Wayne Soong, another physician at Rush, alleging that the defendants tortiously interfered with his expectation of employment at AAD. Botvinick theorized that the defendants induced Morton to deny his application for privileges by telling Morton about his involvement in the 2004 sex-toy scandal. After removing the case to federal court based on diversity jurisdiction, the defendants moved to dismiss on a number of grounds, including the Illinois Medical Studies Act ("IMSA"). The IMSA makes privileged any information regarding "a health care practitioner's professional competence" used by a hospital credential committee "in the course of internal quality control." 735 ILCS 5/8-2101. According to the defendants, the IMSA prevented Botvinick from using any communications between Rush physicians and Morton's credential committee as the basis for a tort action. The court denied the motion to dismiss but, relying on the IMSA, entered a protective order preventing Botvinick from discovering "the oral and/or written communications between Drs. Ivankovich, Rothenberg, Tuman or any other Rush physician and the Morton Plant Mease Health Care facility's Credentials Committee or any of its authorized representatives." In a motion to clarify the protective order, Botvinick requested that the court direct the defendants to answer all deposition questions regarding their communications with Morton and, after examining their responses, determine which communications were inadmissible under the IMSA. The court denied the motion. At a subsequent motions hearing, the court also declined to rule in the abstract on which particular communications between Rush and Morton were privileged. Instead, the court directed the parties to document any questionable assertions of privilege made during depositions and follow up with a motion to compel a response. Ivankovich did interpose privilege objections during his deposition, but, perhaps foreshadowing the beginning of the end for Botvinick, no motion to compel followed.

After the taking of depositions, the defendants moved for summary judgment on Botvinick's tortious interference claim. Accompanying the defendants' motion were affidavits submitted by Drs. Rothenberg, Tuman, Nath, and Soong stating that they did not provide any written or oral evaluations about Botvinick to Morton's credential committee. The district court granted the defendants' summary judgment motion. The court reasoned that all of the defendants except Ivankovich could not have tortiously interfered with Botvinick's application for privileges because they never provided any evaluations to Morton. Ivankovich was also entitled to summary judgment, the court concluded, because Botvinick lacked evidence that any information provided by Ivankovich caused Morton to terminate Botvinick's privileges. Botvinick appeals.

II. Analysis

We review de novo the district court's grant of sum-mary judgment in favor of the defendants. Ali v. Shaw, 481 F.3d 942, 944 (7th Cir. 2007). Summary judgment is proper if the record shows no genuine issue of material fact on Botvinick's claim of tortious interference with a business expectancy. See id. (citing Fed. R. Civ. P. 56(c)). Under Illinois law, the elements of that claim are "(1) [the plaintiff's] reasonable expectation of entering into a valid business relationship; (2) the defendant's knowledge of the plaintiff's expectancy; (3) purposeful interference by the defendant that prevents the plaintiff's legitimate expectancy from ripening into a valid business relationship; and (4) damages to the plaintiff resulting from such ...

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