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Murphy v. Advocate Health and Hospitals Corporation

Court of Appeals of Illinois, Fourth District

March 7, 2017

PATRICK B. MURPHY, M.D., Plaintiff-Appellant,
ADVOCATE HEALTH AND HOSPITALS CORPORATION, d/b/a Advocate BroMenn Medical Center, Defendant-Appellee.

         Appeal from Circuit Court of McLean County No. 16CH122 Honorable Mark A. Fellheimer, Judge Presiding.

          STEIGMANN JUSTICE delivered the judgment of the court, with opinion, Justice Appleton concurred in the judgment and opinion, Justice Harris dissented, with opinion.



         ¶ 1 In May 2016, the vice president for medical management of defendant, Advocate Health and Hospitals Corporation, d/b/a Advocate BroMenn Medical Center (BroMenn), told plaintiff, Patrick B. Murphy, M.D., that his clinical privileges had been summarily suspended, which effectively ended Murphy's authorization to practice medicine at BroMenn. Shortly thereafter, BroMenn reinstated Murphy's privileges based on a mutual agreement that Murphy would refrain from using those credentials during BroMenn's further inquiry into the matter.

         ¶ 2 In June 2016-after Murphy alleged that BroMenn failed to comply with various medical staff bylaws when summarily suspending his privileges-BroMenn's medical staff executive committee voted to reinstate Murphy's summary suspension. Later that month, in response to Murphy's request, an "intraprofessional conference" comprised of a hearing officer and a panel of five medical professionals considered whether Murphy's summary suspension was warranted. The conference panel later recommended that BroMenn's governing council maintain the summary suspension of Murphy's privileges, which the council accepted.

         ¶ 3 Thereafter, Murphy filed a motion requesting an emergency temporary restraining order and preliminary injunction against BroMenn. In his prayer for relief, Murphy sought (1) a declaratory finding that the May 2016 summary suspension of his privileges "violated state law and is null and void" and (2) a temporary, preliminary, and permanent injunction prohibiting BroMenn from enforcing or reporting the summary suspension of his privileges. Following a July 2016 hearing, the trial court denied Murphy's motion for declaratory and injunctive relief.

         ¶ 4 Murphy appeals, arguing that the trial court erred by denying his motion for declaratory and injunctive relief. Pertinent to this appeal is Murphy's contention that BroMenn failed to follow the proper procedure provided by its medical staff bylaws when summarily suspending his privileges. For the reasons that follow, we reverse.

         ¶ 5 I. BACKGROUND

         ¶ 6 A. The Pertinent Provisions of BroMenn's Medical Staff Bylaws

         ¶ 7 As noted, the pertinent issue on appeal concerns the proper procedure for summarily suspending a physician's privileges, which Murphy alleges BroMenn violated by not following its medical staff bylaws. Thus, in addition to tailoring our ensuing discussion regarding the pertinent circumstances of Murphy's claim, we quote the following pertinent provisions of BroMenn's medical staff bylaws to provide context.

         ¶ 8 Article VIII, section II, titled "Summary Suspension, " provides, in part, as follows:

"Any two or more of the following individuals, acting together, shall be deemed to be a duly recognized Emergency Action Sub-Committee of the Executive Committee or the Governing Council: the Medical Staff President, the Chair of a clinical Department, [or] the President of [BroMenn's] Medical Center. The Emergency Action Sub-committee has the authority to summarily suspend, based on documentation or other reliable information, the Medical Staff membership status or all or any portion of the clinical privileges of a member or privileges holder whose conduct or continuation of Practice presents an immediate danger to the public ***. The summary suspension is effective immediately upon imposition.
A. REVIEW OF SUMMARY SUSPENSION. As soon as reasonably possible, the Executive Committee shall meet to review the documentation upon which the summary suspension is based, and recommend whether it should be affirmed, lifted, expunged, or modified. If the Executive Committee recommends that the summary suspension be lifted, expunged[, ] or modified, that recommendation must be reviewed by the Governing Council, or a committee of the governing Council, on an expedited basis.
After summary suspension is imposed, the affected practitioner summarily suspended shall be entitled to written notification thereof which shall be deposited in the U.S. mail addressed to his or her last known address. The affected practitioner shall be entitled to request an Intraprofessional Conference under Article IX to contest the suspension. *** The Intraprofessional Conference, if requested, will be conducted within *** (15) days from the effective date of the summary suspension unless otherwise determined by mutual agreement of the parties."

         ¶ 9 Article IX, section I, titled "Right of Intraprofessional Conference, " provides, as follows:

"A. The Hospital President shall give an effected [sic] member or, in circumstances that could result in a National Practitioner Data Bank report, an applicant, written notice of any adverse action, defined in Section II of this Article. The notice shall also state the reasons for the adverse action, including any and all economic factors therefore, the right of the affected individual to request an Intraprofessional Conference as described in these Bylaws, the [30-]day deadline within which the Intraprofessional Conference must be requested, and the rights available in the Intraprofessional Conference."

         Article IX, section II A, classifies the reduction, suspension, or revocation of clinical privileges as an adverse action.

         ¶ 10 Article IX, section IV, titled "Initiation of Conference Process, " provides, in pertinent part, as follows:

"A. As soon as is reasonably practicable after receipt of such request, the Hospital President shall schedule the Conference and shall notify the affected individual in writing, return receipt requested, of the date and time the Conference is to take place, as well as its location along with a list of witnesses expected to testify. In no event other than summary suspension[ ] [s]hould the date for the Conference be set less than *** (30) days nor more than *** (50) days from receipt of request for such Conference unless otherwise agreed to by the parties.
B. The affected individual is entitled, upon timely and advanced written request, to inspect all pertinent and non-privileged information in the Hospital's possession prior to the Intraprofessional Conference. ***
D. The affected individual shall be entitled to representation by legal counsel or by any individual of the subject's choice in any phase of the hearing and shall receive notice of the right to obtain such representation. The medical executive committee shall appoint a representative to present its action or recommendation, the materials in support thereof, examine witnesses, and respond to appropriate questions, and may be represented by legal counsel in place of or in addition to such representation."

         ¶ 11 Article IX, section VI(C), which appears under the title "Rules of Procedure, " provides that "[t]he Committee and the affected individuals both have the right to call and cross-examine witnesses during the Conference."

         ¶ 12 B. BroMenn's Initial Notice to Murphy Regarding the Summary Suspension of His Privileges

         ¶ 13 On the evening of Friday, May 20, 2016, Dr. James Nevin, Jr., BroMenn's vice president for medical management, verbally informed Murphy, a board-certified physician in cardiology and interventional cardiology, that his privileges-through which Murphy had practiced medicine at BroMenn since 1994-had been summarily suspended. Nevin's decision originated from a meeting conducted earlier that day, during which he and three other physicians discussed the medical care Murphy provided to E.W. from May 11, 2016, to May 14, 2016, when E.W. died of cardiogenic shock. In a May 23, 2016, letter, the president of BroMenn's medical staff, Dr. Mark J. Hanson, provided Murphy the following notice: "This letter is to notify you that, upon review of a quality concern, it has been determined that a summary suspension be imposed effective May 20, 2016. If you have any questions, please contact me."

         ¶ 14 C. The Special Meeting of BroMenn's Executive Committee and the Governing Council's Subsequent Approval

         ¶ 15 (The following synopsis was gleaned from minutes documenting a special meeting of BroMenn's executive committee.)

         ¶ 16 The same day that Hanson sent his letter to Murphy, Hanson chaired a special meeting of BroMenn's executive committee to determine whether to "affirm, lift, expunge, or modify" the summary suspension of Murphy's privileges. The chair of medicine for BroMenn's medical staff, Dr. Chae Chu-who was present at the May 20, 2016, meeting-provided the executive committee a technical summary of the medical care Murphy administered to E.W. from May 11, 2016, to May 14, 2016. Following that summation, Chu noted the following deficiencies: (1) the absence of any documentation concerning the May 12, 2016, cardiac catheterization procedure Murphy performed on E.W.; (2) a delay in the bedside evaluation of E.W.'s status; (3) an inappropriate response to clinical findings; and (4) Murphy's refusal to consult with an intensive care unit (ICU) physician who had requested to confer with Murphy about the management of E.W.'s care.

         ¶ 17 Under the "Discussion" heading that documented the executive committee meeting was the following notation:

"Of note, there were two quality cases reviewed in 2015, one determined to be [an opportunity for improvement]. There are two other cases currently in the peer review process and another case (aside from this one) which will be submitted for review. Summaries of [eight] Incident reports from [December 10, 2015, to] Friday's event were included in the information provided to the [executive] committee."

(The term "Friday's event, " may refer to Friday, May 13, 2016, the last day Murphy provided E.W. medical care, or Friday, May 20, 2016, the day Nevin told Murphy that his privileges had been summarily suspended.)

         ¶ 18 The executive committee also discussed the possibility that "the recent number of quality events, after 20 years of practice, could be indicative of an issue in *** Murphy's personal life." An executive committee member added that because the lack of medical documentation was a historical critique of BroMenn's cardiology department, the executive committee should not affirm Murphy's summary suspension on that basis. Thereafter, the executive committee decided to (1) "lift the suspension imposed on Friday, May 20[, 2016], " and (2) refer the matter to the "productive interaction process." In so doing, the executive committee planned to seek Murphy's voluntary commitment to refrain from using his privileges until completion of the productive interaction. (As described in Article III, section V(B), of BroMenn's medical staff bylaws, a "productive interaction" may be utilized as a means of resolving behavioral, clinical, or administrative issues, which does not involve an investigation or hearing that implicates procedural rights.)

         ¶ 19 On May 24, 2016, BroMenn's governing council reviewed and approved the executive committee's determination to reinstate Murphy's privileges, which remained contingent on Murphy's commitment to refrain from using those credentials until completion of the productive interaction.

         ¶ 20 D. BroMenn's Notification

         ¶ 21 On May 25, 2016, Murphy met with Chu and agreed verbally that he would not use his privileges during the pendency of the productive interaction. That same day, Hanson sent Murphy a letter, stating as follows:

"As *** previously notified verbally on *** May 20, 2016[, ] and followed by my letter dated May 23, 2016, your *** privileges were summarily suspended at *** BroMenn ***. Pursuant to the Medical Staff Bylaws, this action was reviewed by the *** Executive Committee *** and the Governing Counsel of BroMenn.
The [Executive Committee] recommended and the Governing Council concurred that the summary suspension should be lifted. Therefore, your *** privileges are no longer suspended. However, the Governing Counsel requested, and you have agreed, that you will voluntarily not exercise your *** privileges pending a peer review investigation by BroMenn related to clinical concerns that have been raised. In addition, the Productive Interaction Process will be initiated.
At this time[, ] no events have occurred that entitle you to a fair hearing pursuant to the Medical Staff Bylaw. I understand a copy of the Bylaws was provided to you via email this morning."

         ¶ 22 E. The Executive Committee's Subsequent Summary Suspension of Murphy's Privileges

         ¶ 23 1. Murphy's Expressed Intent to Exercise His Privileges

         ¶ 24 Shortly thereafter, Murphy retained counsel. (Unless otherwise noted, all further references to Murphy should be considered actions taken on his behalf by his retained counsel.) On May 31, 2016, Murphy sent Hanson a letter, stating that he would not voluntarily relinquish his privileges. Murphy based his decision on BroMenn's alleged failure to establish that an immediate danger existed as required by section 10.4 of the Hospital Licensing Act, which provides that "[a] summary suspension may not be implemented unless there is actual documentation or other reliable information that an immediate danger exists." 210 ILCS 85/10.4(b)(2)(C)(i) (West 2014).

         ¶ 25 In a separate correspondence, which was also dated May 31, 2016, Murphy demanded that BroMenn immediately expunge any reference to the summary suspension from his medical staff record, emphasizing the following alleged deficiencies:

"To date, BroMenn has provided no written notice *** of an actual documented immediate danger necessitating the summary suspension, any written notice of the alleged reason(s) for the summary suspension, or [Murphy 's] right to request a hearing on the summary suspension in violation of the Bylaws and [Act]." (Emphasis in original.)

         Murphy added that BroMenn's documentation concerns could not substantiate an immediate danger.

         ¶ 26 2. The Executive Committee's Response to Murphy's Expressed Intent to Exercise His Privileges

         ¶ 27 On June 1, 2016, Hanson informed Murphy by letter that the executive committee had convened earlier that day and voted to summarily suspend Murphy's privileges effective immediately. The executive committee found that the care Murphy provided to E.W. during May 13-14, 2016, "raises such significant concerns regarding your medical judgment and ability to practice medicine, that it has been determined that continued medical practice by you at [BroMenn] poses an immediate danger to its patients." In support of its decision, the executive committee listed the following deficiencies: (1) the absence of documentation of cardiac catheterization images or reports of cardiac catheterization intervention; (2) inappropriate treatment for cardiogenic shock; (3) delay in bedside evaluation of a critically ill patient; (4) inappropriate response (E.W. was hypotensive for over 17 hours without effective treatment) and an inadequate conclusion of the cause of E.W.'s cardiac arrhythmias (Murphy allegedly told an attending nurse that E.W.'s death was caused by the administration of Benadryl and Xanax); (5) refusal to consult with an ICU physician about E.W.'s medical management and, instead, instructing the nurse to call Murphy only for orders regarding E.W.'s care; (6) lack of medical knowledge and decision; (7) poor judgment and management of critical labs and medical condition; and (8) improper administration of a specific medication. The executive committee noted that "in addition[, ] in the past 18 months, *** Murphy has had [4] peer review cases and [10] other reports for inadequate documentation and/or management."

         ¶ 28 F. The Request and Response for an Intraprofessional Conference

         ¶ 29 1. Murphy's Request for an Intraprofessional Conference and Relevant Information

         ¶ 30 On June 2, 2016, Murphy sent a letter addressed to Hanson in which he requested an intraprofessional conference on BroMenn's decision to summarily suspend his privileges. In making that request, Murphy stated the following:

"Please be advised that this request for [intraprofessional] [c]onference assumes that all documentation on which the summary suspension is based has been provided to *** Murphy *** expeditiously. *** The [c]onference will be rendered useless if *** Murphy is not provided with all the documentation on which the summary suspension was based and given an opportunity to review said documentation in advance of the [c]onference. A written request for said documentation has been submitted to [BroMenn's] Associate General Counsel *** today."

         ¶ 31 On June 6, 2016, Murphy sent a written request addressed to BroMenn's retained counsel and BroMenn's associate general counsel requesting the following documentation:

"1. All minutes of all medical staff and/or hospital meetings at which *** Murphy and/or his medical staff membership and/or [his] clinical privileges have been discussed since he joined the medical staff at *** BroMenn ***;
2 *** Murphy's credential/personnel file at *** BroMenn ***;
3.All internal or external reviews of any of *** Murphy's medical charts or patient care rendered by *** Murphy;
4.All internal and external medical staff or hospital communications about *** Murphy;
5.All witness statements gathered during any investigation of *** Murphy;
6.A copy of any report(s) of any autopsies performed on *** E.W. and if none exists, a description of the cause of death *** and/or the *** [e]xecutive committee's conclusion as to the suspected cause of death of *** E.W.;
7. The names of the members of the 'Emergency Action Sub-Committee' that initiated the summary suspension under Article VIII, Section II of the [m]edical [s]taff [b]ylaws and any reports, communications, memorandums[, ] or other documents prepared by said committee to the summary suspension; and
8.A list of any and all witnesses that the *** [e]xecutive [c]ommittee intends to present and all documents that will be introduced at the [i]ntraprofessional [c]onference."

         ¶ 32 2. BroMenn's Response to Murphy's Request for an Intraprofessional Conference

         ¶ 33 On June 7, 2016, BroMenn's medical center president, Colleen Kannaday, informed Murphy by letter that BroMenn had scheduled a June 10, 2016, intraprofessional conference to either confirm or overturn the executive committee's summary suspension of Murphy's privileges. In her letter, Kannaday identified, by name, (1) the intraprofessional conference panel members and (2) seven witnesses BroMenn expected to solicit testimony from at the conference. Although Kannaday's correspondence mentioned that Murphy had the right to "[i]nspect all pertinent and non-privileged information in [BroMenn's] possession *** with respect to the decision which is the subject of the [conference], " Kannaday's letter did not otherwise acknowledge Murphy's June 6, 2016, letter requesting the aforementioned documentation.

         ¶ 34 3. BroMenn's Disclosures

         ¶ 35 On June 9, 2016, BroMenn identified 13 exhibits it intended to introduce at the intraprofessional conference. Exhibits 1 to 9 concerned primarily the aforementioned correspondences exchanged between Murphy and BroMenn between May 23, 2016, and June 7, 2016. The minutes of the May 23, 2016, special meeting of BroMenn's executive committee were also included in the nine exhibits. The remainder of BroMenn's exhibits were as follows: (1) exhibit 10 contained E.W.'s medical records; (2) exhibit 11 showed "peer review worksheet[s]" for two unidentified patients, which summarized the care provided to each patient in December 2014 and April 2015, respectively; (3) exhibit 12 disclosed eight "Midas" reports (the Midas reports appear to be brief excerpts extracted from medical charts, summarizing the care provided to unidentified patients from December 2015 to May 2016); and (4) exhibit 13 included medical records of a patient identified as M.A. In a June 2016 affidavit, Mary S. Matthews, BroMenn's associate general counsel, averred that BroMenn provided Murphy (1) E.W.'s medical records on June 2, 2016, (2) exhibits 12 and 13 on June 7, 2013, and (3) exhibit 11 on June 9, 2016. (We note that 2 of the 4 peer review cases and 2 of the 10 Midas reports that BroMenn relied upon in summarily suspending Murphy's privileges were not provided to Murphy and not included in the record on appeal.)

         ¶ 36 a. The Peer Review Worksheets

         ¶ 37 We note that the peer review reports at issue do not provide the identities of the respective personnel involved. However, as disclosed by BroMenn in its brief to this court, exhibit 13, which contained the medical file of a patient identified as M.A., is the ...

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