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Levitin v. Northwest Community Hospital

United States District Court, N.D. Illinois, Eastern Division

September 28, 2016

YELENA LEVITIN and CHICAGO SURGICAL CLINIC, Plaintiffs,
v.
NORTHWEST COMMUNITY HOSPITAL, ADVANCED SURGICAL ASSOCIATES, ALAN LOREN, WILLIAM SOPER, and DANIEL CONWAY, Defendants.

          MEMORANDUM OPINION AND ORDER

          Gary Feinerman, Judge.

         Yelena Levitin and Chicago Surgical Center, Ltd. (“CSC”) filed this suit against Northwest Community Hospital (“NCH”), Advanced Surgical Associates (“ASA”), Alan Loren, William Soper, and Daniel Conway, bringing federal antitrust claims, a hostile work environment claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and state law claims for breach of contract, tortious interference with existing and prospective business relations, defamation, false light, deceptive business practices, and negligent misrepresentation. Doc. 1. The court dismissed the antitrust claims under Federal Rule of Civil Procedure 12(b)(6) but allowed the Title VII and state law claims to proceed. Docs. 37-38 (reported at 64 F.Supp.3d 1107 (N.D. Ill. 2014)). The court then denied Defendants' Rule 12(c) motion for judgment on the Title VII claim on statute of limitations grounds. Docs. 120-121 (reported at 2015 WL 3663688 (N.D. Ill. June 12, 2015)). A two-week jury trial is set for October 24, 2016. Doc. 139.

         Now before the court are Defendants' summary judgment motion, Doc. 165, and Plaintiffs' motion for partial summary judgment on the question whether Defendants are entitled to immunity under the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. § 11101 et seq., and the Illinois Hospital Licensing Act (“IHLA”), 210 ILCS 85/1 et seq., from liability on the state law claims, Doc. 236. Related to the summary judgment motions are Plaintiffs' two motions to strike, Docs. 237, 301; Defendants' motion to strike, Doc. 281; and Defendants' motions in limine to disqualify Plaintiffs' experts, Docs. 142, 145. For the following reasons, Defendants' summary judgment motion is granted in part as to the Title VII claim and denied as moot in part as to the state law claims; Plaintiffs' summary judgment motion is denied as moot; Plaintiffs' motions to strike are denied in part and denied as moot in part; and Defendants' motion to strike and motions in limine are denied as moot. Moreover, with the sole remaining federal claim resolved, the court relinquishes its jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(c)(3).

         Background

         As the court reaches the merits only of Defendants' summary judgment motion, the following facts are set forth as favorably to Plaintiffs as the record and Local Rule 56.1 permit. See Great W. Cas. Ins. Co. v. Robbins, __ F.3d __, 2016 WL 4366769, at *2 (7th Cir. Aug. 16, 2016); Hanners v. Trent, 674 F.3d 683, 691 (7th Cir. 2012). On summary judgment, the court must assume the truth of those facts, but does not vouch for them. See Arroyo v. Volvo Grp. N. Am., 805 F.3d 278, 281 (7th Cir. 2015). Because Plaintiffs incorporate much of their Local Rule 56.1(a)(3) statement in support of their summary judgment motion, Doc. 211 at 2-19, into their Local Rule 56.1(b)(3)(C) statement in opposition to Defendants' summary judgment motion, Doc. 241, and into their summary judgment opposition brief, Doc. 243, the Local Rule 56.1(a)(3) statement (and Defendants' responses) will be considered part of the summary judgment record.

         With leave of court, Plaintiffs twice made corrections to their motion for partial summary judgment, in which their Local Rule 56.1(a)(3) statement was embedded. Docs. 208-211, 227, 235-36. Plaintiffs represented to the court that the second correction, Doc. 236, which was filed after Defendants had already filed their Local Rule 56.1(b)(3)(B) response to Plaintiffs' Local Rule 56.1(a)(3) statement, Doc. 232, would change only two typographical errors, both within the argument section of the brief; Plaintiffs did not seek leave to make any changes to the Local Rule 56.1(a)(3) statement. Doc. 227 at 9-10. The second corrected motion nevertheless makes several changes to the Local Rule 56.1(a)(3) statement. Compare Doc. 211 at ¶¶ 36, 45, 48, 58, with Doc. 236 at ¶¶ 36, 45, 48 (adding names), and Id. at ¶ 58 (changing a date). Although none of those changes are relevant to the court's resolution of the summary judgment motions, the court will treat the Local Rule 56.1(a)(3) statement in Plaintiffs' first corrected motion, Doc. 211 at 2-19, as the operative version for purposes of this opinion.

         A. Factual Background

         1. The Parties

         Levitin is a female, Jewish physician of Russian descent licensed to practice medicine in Illinois. Doc. 232 at ¶ 1; Doc. 240 at ¶ 1. She is employed by CSC, a private medical practice, which she owns and operates. Doc. 240 at ¶¶ 1, 6.

         NCH is a hospital licensed to operate under Illinois law. Id. at ¶ 2. ASA is a medical practice comprised of general surgeons, including Soper, Conway, and Loren. Doc. 232 at ¶ 3; Doc. 240 at ¶ 4. ASA's principal place of business is located within the NCH facilities. Doc. 240 at ¶ 3. Soper served as the chair of NCH's Department of Surgery in 2010, and was a member of NCH's Board of Directors from 2011 to 2013, NCH's Quality Committee in 2012, and NCH's Medical Executive Committee (“MEC”) from 2011 to 2013. Doc. 232 at ¶ 4. The MEC is a standing committee responsible for surveilling the quality of medical care and the ethical conduct of NCH's medical staff. Id. at ¶ 12; Doc. 218-2 at 10. Loren was an MEC member and the Department of Surgery chair and vice chair at various points between 2005 and 2012. Doc. 232 at ¶ 6. Conway served as the chair of the Surgical Audit Committee (“SAC”), a peer review committee within NHC's Department of Surgery, from 2004 to 2010. Id. at ¶¶ 5, 14; Doc. 221-4 at 9, pp. 40-41.

         2. Termination of Levitin's NCH Staff Privileges

         From 2000 through January 2013, Levitin maintained credentials and clinical privileges at NCH. Doc. 240 at ¶ 73; Doc. 283 at ¶ 2. Starting in 2008, over the course of several confrontations, Conway insulted and ridiculed Levitin's medical judgment and surgical skills in front of her colleagues and patients. Doc. 283 at ¶ 31; Doc. 317 at ¶¶ 6-16. On one occasion, Conway entered the operating room without Levitin's permission and made her uncomfortable by questioning her surgical findings. Doc. 317 at ¶ 7. Levitin complained about Conway, who was reprimanded and instructed to leave Levitin alone. Doc. 283 at ¶¶ 32, 34.

         In late 2009, Soper, who at the time was the chair of the Department of Surgery, received a complaint against Levitin from Allan Malmed, a radiologist at NCH. Doc. 179 at ¶ 3; Doc. 192 at 3-4, pp. 163-65; Doc. 283 at ¶ 37. Malmed expressed concern over Levitin's competence and judgment, asserting his view that some of her work was inconsistent with sound medical practice. Doc. 192 at 4, p.165; Doc. 240 at ¶ 22; Doc. 240-6 at ¶¶ 8-9. More specifically, Malmed complained that Levitin was conducting procedures that were not indicated by a patient's diagnostic findings. Doc. 192 at 4, p. 165; Doc. 240-6 at ¶¶ 8-9.

         Soper previously had received complaints about Levitin from two other general surgeons, Bob Glass and John Peters. Doc. 192 at 7, p. 184; Doc. 240 at ¶ 22. Glass refused to work with Levitin because he believed she was incompetent and felt uncomfortable performing surgeries with her. Doc. 192 at 9, pp. 197-98. Peters felt similarly, although he stated only a preference not to operate with Levitin. Id. at 9, p. 199. A doctor named Milano, who at the time was the head of pathology, also had complained to Soper that Levitin was requesting inappropriate procedures. Id. at 11, pp. 213-14.

         After receiving those complaints, Soper conducted a retrospective review of Levitin's cases back to 2004. Doc. 283 at ¶ 37. Soper informed Levitin that some of her colleagues had complained about her work and that, as a result, he would be proactively reviewing her cases. Doc. 317 at ¶ 23. Soper memorialized his conversation with Levitin in a contemporaneous memorandum:

I had a phone discussion with Dr. Levitin today in regards to concerns of mine and multiple other medical people who have brought to my attention some concerns regarding some of her cases and cases of her partners with either complications that occurred during procedures or concerns for potential complications. I expressed my concerns that some of the potential problems might be avoidable and may reflect some issues with judgment and some of the issues may reflect some technical ability and technical judgment during procedures. I offered my assistance to be a resource person to bounce questions off of and also expressed my concerns that major problems would certainly have a bad impact on her practice as well as would be bad for the hospital and also reflect poorly on the rest of the department of surgery. I stated that I would be reviewing her activities and her partner's activities proactively with the hopes to prevent major problems in the future and encouraged her to evaluate her and her group's surgical activities based on their clinical experience and judgment and to hopefully avoid episodes that could evolve into major problems. She expressed a willingness to use me as a resource if needed and also that she would like to discuss any specific issues with me when the need arises. She also offered to send me some copies of articles in regard to some of the clinical judgment and activities that have involved their cases.

Doc. 320-31 at 4.

         Levitin does not recall Soper offering his assistance in this way. Doc. 317 at ¶ 23. Plaintiffs assert that, as part of his review, Soper intended to cancel any surgeries that Levitin had scheduled that he deemed inappropriate. Doc. 283 at ¶ 37. That assertion is not supported by the cited evidence; rather, Soper testified that he would review Levitin's work and, if he noticed anything unusual, he would bring it to her attention for reconsideration. Ibid.; Doc. 320-29 at 18, p. 260. So that assertion by Plaintiffs is disregarded.

         In January 2010, acting on Malmed's advice, Soper asked the MEC to review Levitin's cases. Doc. 179 at ¶ 10; Doc. 213-2 at 2. The request stated: “Over the past five years or so there has been some concerns raised about her practice of surgery by multiple different people here at Northwest Community. As Chairman of the Department of Surgery, I have received complaints from nursing, anesthesia, and other surgical colleagues in regards to her practices.” Ibid. Soper's request set off a series of events, described immediately below, that culminated in NCH's Board of Directors revoking Levitin's medical staff membership and clinical privileges. Doc. 240 at ¶ 70.

         After receiving Soper's request, the MEC convened an investigative committee, which concluded that Levitin had deviated from the standard of care in four out of the thirty-one cases it reviewed. Doc. 213-9 at 8; Doc. 232 at ¶ 22; Doc. 240 at ¶ 27. The investigative committee recommended that corrective action not be taken against Levitin, but it did recommend that her cases be subject to quarterly retrospective reviews. Doc. 213-9 at 8; Doc. 232 at ¶ 22; Doc. 240 at ¶ 27. The MEC largely adopted the investigative committee's findings. Doc. 232 at ¶ 23.

         But in 2011, following an incident where Levitin's patient suffered a laryngospasm during an endoscopy, the MEC reconvened the investigative committee. Doc. 214-8 at 3; Doc. 232 at ¶¶ 27, 31; Doc. 240 at ¶ 33; Doc. 283 at ¶ 41. This time, the investigative committee recommended corrective action. Doc. 232 at ¶ 33; Doc. 240 at ¶ 36; Doc. 283 at ¶ 43. Based on that recommendation, the MEC terminated Levitin's medical staff privileges. Doc. 232 at ¶ 36; Doc. 283 at ¶ 43. Levitin requested a hearing before the Judicial Review Committee (“JRC”), which concluded that the termination of her privileges was unwarranted. Doc. 171 at 24-26; Doc. 232 at ¶¶ 38-39; Doc. 240 at ¶¶ 41, 46; Doc. 280 at ¶ 46. The Quality Committee conducted another layer of review, overturning the JRC and reviving the MEC's termination recommendation. Doc. 232 at ¶ 43; Doc. 240 at ¶ 56. The final call belonged to the NCH Board, which adopted the Quality Committee's conclusions and determined that Levitin's staff privileges should be terminated. Doc. 240 at ¶ 60.

         3. Levitin's Compensation and Benefits

         The parties disagree as to how Levitin was compensated. According to Defendants, Levitin did not receive compensation from NCH; rather, she billed her patients directly, collecting her fees from them and from third-party payors. Doc. 168 at ¶ 21. On this point, Levitin testified as follows:

Q. The billing of your services was done by who, Doctor?
A. The billing for my services?
Q. Yes. Your services as a surgeon.
A. Is done through the-through the billing software, which is a part of the Chicago Surgical Clinic operations.
Q. And you and Chicago Surgical Clinic collect fees directly from payors, correct?
A. For the most part.
Q. Patients as well?
A. Patients as well, yes.

Doc. 319-18 at 11, p. 269. Plaintiffs dispute Defendants' assertion, but they do so only by identifying other payments that Levitin received, which are described in the next two paragraphs. Plaintiffs identify nothing in the record that contradicts Levitin's testimony about the manner in which she billed her patients.

         Plaintiffs assert that NCH compensated Levitin in two ways. Doc. 243 at 22. First, they maintain that Levitin received payments from NCH PHO, a limited liability corporation created for NCH's physician hospital organization (“PHO”). Ibid.; Doc. 241 at ¶ 5. A physician could become a member of NCH PHO only if she was on NCH's medical staff and then separately credentialed by the PHO. Doc. 283 at ¶ 5. The PHO had an HMO agreement with BlueCross/ BlueShield, and patients who subscribed to a specific insurance plan could see physicians at NCH under the terms of that agreement. Doc. 320-17 at 19, pp. 82-85. Non-NCH doctors were considered “out of network, ” and plan participants treated by such doctors would bear the financial costs of those visits. Id. at 19, p. 85. Levitin “applied for years and years and years, and then finally … was granted the permission to participate in the [PHO] program.” Doc. 319-18 at 11, p. 271.

         In Levitin's words, if arrangements are “through the physician health organization, then you get paid by the physician health organization. You participate with the insurers through that health organization.” Id. at 11, p. 270. As evidence of these payments, Plaintiffs provide two Form 1099-MISCs listing $4, 141.58 and $3, 948.74 in income, with CSC identified as the recipient on both, NCH as the payor on the former, and “Northwest Community Health Partners” as the payor on the latter. Doc. 241 at ¶ 5; Doc. 317-6 at 6, 8. Viewed in the light most favorable to Levitin, this is evidence that she derived some income from her participation in the PHO, which existed to provide in-network insurance benefits and was a corporate entity distinct from NCH; it is not evidence that the PHO was a significant source of income or that NCH compensated her directly other than on behalf of the PHO, and it does not contradict Levitin's own testimony that she generally billed patients directly.

         Second, Plaintiffs maintain that NCH compensated Levitin through her participation in NPC-Cyberknife, a joint venture between NCH and certain physicians that leased medical equipment to NCH. Doc. 241 at ¶ 4; Doc. 320-17 at 20, pp. 88-89. The profits earned by the venture were distributed on a pro rata basis to the hospital and the physicians, based on ownership shares. Id. at 21, pp. 90-91. This, too, describes an additional income stream that Levitin enjoyed; it does not contradict her testimony about her billing practices. Thus, the undisputed facts are that Levitin billed her patients or their insurers directly, and that she also derived limited income from participation in NCH PHO and NPC-Cyberknife.

         The parties also disagree about whether NCH provided employment benefits to Levitin. Defendants assert that NCH did not provide Levitin with any such benefits, including health insurance, paid vacation, or private office space. Doc. 168 at ¶ 20. Defendants further assert that they did not pay income or Social Security tax; issue any W-2 tax forms; pay for Levitin's worker's compensation or malpractice insurance; or cover her professional organization dues or licensing fees. Ibid.

         Levitin disputes Defendants' assertions, citing to the portion of her Local Rule 56.1(b)(3)(C) statement concerning the payments she received from NCH PHO and NPC-Cyberknife. Doc. 240 at ¶ 20 (citing Doc. 241 at ¶¶ 4-5). But that portion of her Local Rule 56.1(b)(3)(C) statement does not specifically address whether Levitin received the above-referenced employment benefits, and so her ...


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