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1. Hospitals and Other Medical Facilities_bylaws_contract with doctor
There was no issue of fact as to whether defendant-hospital's bylaws constituted a contract with a doctor whose staff privileges were suspended.
2. Hospitals and Other Medical Facilities_suspension of medical privileges_bylaws not
There was no genuine issue of material fact on the question of whether defendant-hospital breached its bylaws in suspending plaintiff's medical privileges, and summary judgment was properly granted for defendant. Although plaintiff contended that handwritten notes from nurses did not properly request corrective action under the bylaws, the person requesting the correction was the CEO, who addressed the Executive Committee with the notes from the nurses in hand. These complaints referred to the specific activities which constituted the grounds for the request. The CEO's request, though not in writing, was supported by the written complaints of nurses that referred to specific activities or conduct.
3. Hospitals and Other Medical Facilities_suspension of medical privileges--bylaws not
breached_applicable to formal hearing
A hospital complied with its bylaws in suspending a doctor's staff privileges where the doctor contended that he had not been given copies of nurses's complaints and notice of an executive committee meeting at which those complaints were considered. The bylaw provision cited by the doctor does not apply to the process of investigating physician conduct, but to the formal hearing and appellate review subsequent to an adverse Executive Committee recommendation. Moreover, as to the hearing, none of the investigatory steps provided by the bylaws were omitted.
4. Physicians and Surgeons_suspension of staff privileges_notice of charges
A doctor whose staff privileges were suspended by a hospital had sufficient notice of the charges against him to be able to present facts and defend his conduct at a hearing before a panel of medical staff members. Although he argued that he had not received notice that his conduct was disruptive, the issues regarding his care of patients were the same throughout the proceedings, whatever the label.
5. Civil Procedure_findings made during preliminary injunction_not binding at trial
The findings of fact made during a preliminary injunction proceeding are not binding at a trial on the merits, and the trial court here did not err by determining that there was no genuine issue of material fact and awarding summary judgment for defendant.
6. Hospitals and Other Medical Facilities_suspension of medical privileges_grounds
N.C.G.S. § 131E-85 provides that a hospital may take into account the judgment andcharacter of a physician, as well as the reasonable objectives and regulations of the hospital, in suspending a physician's privileges. In this case although plaintiff contended that his privileges were suspended solely for violating patients' rights concerning living wills and control of decisions, other factors were clearly at issue throughout the corrective proceedings.
7. Hospitals and Other Medical Facilities_suspension of doctor's privileges_not
unreasonable or unfair
A hospital's decision to suspend a doctor's staff privileges was not arbitrary and capricious or based on irrelevant considerations, and was based upon the reasonable objectives and regulations of the hospital.
Smith Moore LLP, by Samuel O. Southern and Harriett Twiggs
Smalls; and Eisele, Ashburn, Greene & Chapman, P.A., by
Douglas G. Eisele for plaintiff-appellant.
Womble Carlyle Sandridge & Rice, PLLC, by Anthony H. Brett and Donald R. Esposito, for defendant-appellee.
Wolfgang Lohrmann, M.D. (Dr. Lohrmann) filed suit against Iredell Memorial Hospital, Incorporated (Memorial Hospital) when Memorial Hospital's governing body suspended Dr. Lohrmann's medical staff privileges in early 2003. Dr. Lohrmann alleged breach of contract, failure to comply with N.C. Gen. Stat. § 131E-85, and violation of his rights to substantive and procedural due process of law.
Dr. Lohrmann was a medical doctor practicing in Iredell County in the speciality of nephrology, dealing with diseases of the kidney. Memorial Hospital was a nonprofit organization located in Statesville, North Carolina, licensed to conduct business as ahospital for the general public. Dr. Lohrmann was a member of the medical staff at Memorial Hospital and exercised medical staff privileges in nephrology. Memorial Hospital's corporate bylaws and medical staff bylaws permitted Memorial Hospital to take corrective action against members of its medical staff. The bylaws stated that corrective action could include suspension of medical staff privileges.
In February and March 2002, Dr. Lohrmann provided care and treatment to Ms. S and Mr. W, two Memorial Hospital patients. Ms. S was an eighty-year-old patient admitted to Memorial Hospital on 14 February 2002, with a diagnosis of gangrene of the left foot. Mr. W was a seventy-five-year-old patient who was admitted through Memorial Hospital's emergency room on 16 March 2002, with shortness of breath and low blood pressure. Both patients later died while being treated at Memorial Hospital.
At a meeting of Memorial Hospital's Medical Executive Committee (Executive Committee) on 22 April 2002, Arnold Nunnery, Chief Executive Officer (CEO) of Memorial Hospital, presented handwritten complaints by Nurse Traci Jenkins and Nurse Gail Roberts regarding Dr. Lohrmann's care of Ms. S and Mr. W. Nurse Jenkins, who was also the granddaughter of Ms. S, reported that Dr. Lohrmann made arrangements for a surgical consultation to amputate Ms. S's leg, despite Ms. S's living will and despite discussion with family members that Ms. S's leg should not be amputated. Nurse Jenkins also reported that Dr. Lohrmann was unwilling to speak with Ms. S and confirm Ms. S's consent to the amputation inthe presence of Nurse Jenkins.
Nurse Roberts reported concerns about Dr. Lohrmann's changes to Mr. W's code status, the set of instructions for medical personnel should Mr. W. experience cardiac arrest or respiratory failure. Nurse Roberts reported that Dr. Lohrmann changed Mr. W's code status twice without discussing the changes with Mr. W's primary physician and that Dr. Lohrmann's instructions were too confusing for the nurses to follow.
After reviewing the written complaints of Nurse Jenkins and Nurse Roberts, the Executive Committee authorized a review of both cases by an outside physician. The two cases were reviewed by Dr. Ronald Falk (Dr. Falk), Chief of the Division of Nephrology & Hypertension at the UNC School of Medicine. Dr. Falk submitted his report to the CEO of Memorial Hospital in a letter dated 5 July 2002. The Executive Committee reviewed Dr. Falk's report on 26 August 2002 and, in accordance with the medical staff bylaws, decided that the Chair of the Department of Medicine at Memorial Hospital would discuss voluntary suspension with Dr. Lohrmann. Dr. Lohrmann refused the Chair's suggested thirty-one-day suspension. Thereafter, in accordance with the medical staff bylaws, a departmental ad hoc investigating committee (the investigating committee) was appointed to consider the accusations against Dr. Lohrmann. Memorial Hospital's CEO informed Dr. Lohrmann of the appointment of the investigating committee in a letter dated 28 August 2002.
The CEO and Byron E. Dunaway, M.D., president of the medicalstaff of Memorial Hospital, provided Dr. Lohrmann with a statement of the charges against Dr. Lohrmann in a letter dated 18 September 2002. The letter stated that the Executive Committee had reviewed Dr. Falk's report and had concluded that Dr. Lohrmann's performance in treating Ms. S and Mr. W was "lower than the standards of [Memorial Hospital's] Medical Staff[.]" The letter detailed the following specific conduct that the Executive Committee stated failed to meet medical staff standards: (1) violation of Ms. S's rights "by not honoring [her] wishes as discussed in her Living Will and as per her family's wishes"; and (2) violation of Mr. W's rights "in relation to whether or not he should be resuscitated as provided by physician's order . . . [which] was written on the basis of prior discussion with [Mr. W] and [his] family."
The investigating committee interviewed a number of individuals, including Dr. Lohrmann, between 20 and 23 September 2002. The written summary of the investigating committee indicated the issues concerning Dr. Lohrmann were patient rights, as well as "communication with the patient/family/nursing/consulting physician attending." The investigating committee made the following pertinent findings: (1) there was poor communication and handling of disagreements with family members; and (2) it was not clear from the record that Mr. W's code status had been discussed with the attending physician prior to the change made by Dr. Lohrmann.
The Executive Committee met on 23 September 2002 to review the investigating committee's summary. Pursuant to medical staff bylaws, Dr. Lohrmann and his attorney were present for the meetingof the Executive Committee and were permitted to make statements and answer questions. After the Executive Committee met with Dr. Lohrmann and considered the investigating committee's summary, the Executive Committee voted to suspend Dr. Lohrmann for seven days and to require him to complete a patient-oriented medical ethics course.
Pursuant to Article VII, Section 2 of the medical staff bylaws, the CEO notified Dr. Lohrmann of the Executive Committee's recommendation in a letter dated 24 September 2002. The letter stated:
The reason for the adverse recommendation by [the Executive Committee] is that your actions taken in managing the professional services for the patients [Ms. S and Mr. W] were below the acceptable standards for members of the Medical Staff. Your determination that [Ms. S] was capable of consenting for the amputation of a limb was inconsistent with her medical condition and her Living Will; also it required close coordination with involved family members and physicians, which did not effectively occur. Your alteration of the DNR status of [Mr. W] without first obtaining the concurrence of the primary physician was inappropriate, and you entered an inappropriate order to effect the change.
Pursuant to Article VI, Section 1(f) of the medical staff bylaws, the Executive Committee's recommendation for suspension entitled Dr. Lohrmann to exercise procedural rights to a hearing before a panel of medical staff members appointed by the president of the medical staff. Dr. Lohrmann made a timely request for a hearing before a panel (the panel) which was granted. At the panel's hearing on 13 and 14 January 2003, Dr. Lohrmann was present and represented by counsel who called, examined, and cross-examinedwitnesses. The panel prepared a written report dated 18 February 2003 in which it concluded that a corrective action by the Executive Committee was an appropriate response to Dr. Lohrmann's conduct, but recommended alternatives to suspension. In its report, the panel also noted that it "[took] exception to [the Executive Committee's] conclusion that patients' rights were violated. Nonetheless, principles of medical ethics [were] brought into question by Dr. L[ohrmann]'s conduct." The Executive Committee convened on 24 February 2003 to consider the findings of the panel. The Executive Committee reinstated the recommendation for a seven-day suspension and also imposed the alternatives to suspension recommended by the panel. The Executive Committee further decided that if Dr. Lohrmann failed to complete the alternatives, then he would be suspended for a total of thirty-one days.
Pursuant to the medical staff bylaws, Dr. Lohrmann appealed the Executive Committee's recommendation to the governing body of Memorial Hospital. The governing body heard Dr. Lohrmann's appeal and affirmed the recommendation of the Executive Committee on 3 April 2003.
Dr. Lohrmann filed a verified complaint and motion for a temporary restraining order and preliminary injunction on 4 April 2003. Judge Christopher M. Collier (Judge Collier) granted Dr. Lohrmann's motion for a temporary restraining order (TRO) and prohibited Memorial Hospital from revoking, suspending, curtailing or placing any other restriction on Dr. Lohrmann's medical staffprivileges until the hearing on the motion for preliminary injunction. The TRO also prohibited Memorial Hospital from reporting its corrective action to the North Carolina Medical Board (the Medical Board) until: (1) the entry of an order dismissing the TRO or denying a preliminary injunction; or (2) the determination of the case on its merits, whichever occurred first. By order dated 24 April 2003, Judge Larry G. Ford (Judge Ford) allowed Dr. Lohrmann's motion for preliminary injunction and enjoined Memorial Hospital from suspending Dr. Lohrmann's medical staff privileges and from reporting its action to the Medical Board. Dr. Lohrmann filed a verified first amended complaint on 25 April 2003. Dr. Lohrmann filed and served a motion for summary judgment on 18 March 2004 seeking to obtain permanent injunctive relief. Memorial Hospital filed and served its own motion for summary judgment on 20 May 2004.
Judge Mark E. Klass (Judge Klass) denied Dr. Lohrmann's motion for summary judgment and entered summary judgment in favor of Memorial Hospital on 21 June 2004. Judge Klass ordered that the preliminary injunction entered by Judge Ford be dissolved, but stayed dissolution until 1 July 2004 to allow Dr. Lohrmann time to appeal to this Court. We entered an order on 1 July 2004 staying Judge Klass's order pending our ruling on Dr. Lohrmann's petition for writ of supersedeas. This Court then granted Dr. Lohrmann's petition on 13 July 2004 and stayed Judge Klass's order pending the outcome of the appeal.
Dr. Lohrmann argues four grounds on which the trial courterred in granting summary judgment for Memorial Hospital: (I) Memorial Hospital's bylaws constituted a contract between Dr. Lohrmann and Memorial Hospital; (II) there were genuine issues of material fact as to whether Memorial Hospital breached its bylaws; (III) findings of fact in the preliminary injunction were supported by the record and gave rise to genuine issues of material fact; and (IV) Memorial Hospital's efforts to suspend Dr. Lohrmann were in violation of N.C. Gen. Stat. § 131E-85.
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). The burden is on the moving party to establish the lack of a triable issue of fact. McKeel v. Armstrong, 96 N.C. App. 401, 406, 386 S.E.2d 60, 63 (1989). To meet its burden, the movant is required to present a forecast of the evidence available at trial that shows there is no material issue of fact concerning an essential element of the non-movant's claim and that the element could not be proved by the non-movant through the presentation of further evidence. Id. Once the movant has supported its motion for summary judgment, the burden shifts to the other party "to introduce evidence in opposition to the motion setting forth 'specific facts showing that there is a genuine issue for trial.'" Metal Works, Inc. V Heritage, Inc., 43 N.C. App. 27, 31, 258 S.E.2d 77, 80 (1979). Appellate review of entry of summary judgmentrequires a two-part analysis of whether, "(1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law." Charlotte Eastland Mall, LLC v. Sole Survivor, Inc., 166 N.C. App. 659, 661, 608 S.E.2d 70, 72 (2004) (citations and internal quotation marks omitted).
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