United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
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.
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.
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
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.
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.
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.
Termination of Levitin's NCH Staff Privileges
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.
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.
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.
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
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.
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.
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.
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.
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.
Levitin's Compensation and Benefits
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.
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,
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.
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
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.
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 ...