Cramer v. Fairfield Med. Ctr. (Full Text)

[Cite as Cramer v. Fairfield Med. Ctr., 2009-Ohio-3338.]

COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT

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O P I N I O N

Plaintiff-Appellant

TIMOTHY CRAMER, M.D.

-vs-

FAIRFIELD MEDICAL CENTER, et al.,

Defendant-Appellee

CHARACTER OF PROCEEDING:

JUDGES:
W. Scott Gwin, P.J.
Sheila G. Farmer, J.
Julie A. Edwards, J.

Case No. 2007 CA 00057

Civil Appeal From Fairfield County Court Of
Common Pleas Case No. 05 CV 1142

Affirmed

June 30, 2009

For Defendant-Appellee

JEFFREY STILTNER
DAWN RAE GRAUEL
Hahn, Loeser & Parks, LLC
65 E. State Street
Suite 1400
Columbus, Ohio 43215

RICHARD S. LOVERING
DONALD R. KELLER
Bricker & Eckler, LLC
100 S. Third Street
Columbus, Ohio 43215

JUDGMENT:

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellant

PAIGE A. MARTIN
77 Outerbelt Street
Columbus, Ohio 43213

[Cite as Cramer v. Fairfield Med. Ctr., 2009-Ohio-3338.]

Edwards, J.

{¶1} Plaintiff-appellant, Timothy Cramer, M.D., appeals from the August 13,

2007, Entry of the Fairfield County Court of Common Pleas granting the Motions for

Summary Judgment filed by defendants-appellees Fairfield Medical Center, W illiam

Lister, Jennifer Black Spiller (aka: “Jennifer Black”), Vicki Sweeney, Jennifer Martin,

Fairfield Imaging Associates, Ronald Osgood, M.D., Gerald Smidebush, M.D., and

Susan Enlow, M.D.

STATEMENT OF THE FACTS AND CASE

{¶2} Appellant Timothy Cramer, M.D. began his employment as a radiologist

with appellee Fairfield Imaging Associates (“FIA”) in March of 2000. Appellees Susan

Enlow, M.D., Ronald Osgood, M.D. and Gerald Smidebush, M.D. are physicians with

appellee FIA. Gerald Smidebush, M.D. is also chairman of the radiology department at

appellee Fairfield Medical Center (“FMC”). While employed as a radiologist with

appellee FIA, appellant provided radiology services to appellee FMC in accordance with

an agreement between appellees FIA and FMC. Appellant’s Employment Agreement

with appellee FIA stated in Section 8, in relevant part, as follows:

{¶3}

“(a) In the event that Dr. Cramer at any time shall not be duly licensed or

otherwise legally authorized to render professional services as a radiologist in the State

of Ohio, or shall not be approved for and maintain a Medical Staff appointment at

Fairfield Medical Center or its successor in interest, then this Agreement shall

immediately and automatically terminate….”

{¶4}

In 2000, appellant, who was married, began a consensual relationship

with a nurse, Rebecca Flautt, who was in the radiology department of FMC. Jolene

Fairfield County App. Case No. 2007 CA 00057

Cramer, appellant’s then wife, called appellee Susan Enlow, M.D. a physician with

appellee FIA, and told her that appellant had physically injured her and had molested

their children. Appellee Enlow, M.D., during her deposition, testified that she thought

that she heard about the affair from a technologist and that she probably had discussed

the affair with her partners. She testified that she probably spoke with Gerald

Smidebush, M.D., who is chairman of appellee FMC’s radiology department, because

his office was next to hers.

{¶5} On or about March 21, 2001, appellant sent a letter to Howard Sniderman,

Vice President of Ancillary Services at appellee FMC, advising him that he was in the

process of getting a divorce and that the gossip in the Radiology Department about his

relationship with Rebecca Flautt “has lately become incessant and destructive”.

Appellant, in his letter, indicated that two technologists, appellees Vickie Sweeney and

Jennifer Black, were responsible for much of the gossip and asked that appellee FMC

take action to stop the gossip. Shortly thereafter, on March 29, 2001, appellee W illiam

Lister, the Radiology Department Manager, and Carol Cogossi, Head of Human

Resources, met with appellees Sweeney, Black and Martin and advised them of the

complaint made about their gossiping and advised them to avoid gossiping.

{¶6} Between March 29, 2001, and April 2, 2001, appellee Jennifer Black

alleged that appellant was harassing her and provided documentation of the alleged

harassment to appellee Lister. On July 6, 2001, appellant reported appellee Jennifer

Black and another technologist for allegedly leaving a patient unattended for at least an

hour, putting the patient, who was thought to have a blood clot in her lungs, at risk.

Appellant requested that the matter be investigated.

Fairfield County App. Case No. 2007 CA 00057

{¶7} Thereafter, on or about July 24, 2001, appellant sent a letter to appellee

Gerald Smidebush, M.D., Chairman of the Radiology Department at appellee FMC,

alleging that his working relationship with appellee Vickie Sweeney had deteriorated

over the past few months. Appellant, in his letter, indicated that, on July 19, 2001,

appellee Sweeney had, he believed, intentionally pulled the wire out of a patient having

an abdominal aortagram. Appellant, in his letter, requested that appellee Sweeney not

be assigned to “scrub” on cases with him in the future. According to appellant, appellee

Dr. Smidebush refused to investigate, telling appellant that he was the one causing the

problems. Appellee Gerald Smidebush, M.D., in a letter to appellant dated July 25,

2001, stated, in relevant part, as follows:

{¶8}

“You have accused her

[appellee Vicki Sweeney] of

intentionally

performing an act while assisting you which sabotaged the procedure and caused

added discomfort to the patient to re-establish arterial access. In your stated opinion,

an adversarial relationship has developed which placed patients at risk. You have

requested that Vicki not be assigned to ‘scrub’ on cases with you in the future.

{¶9}

“As you know, we currently have only three trained angio techs, of which

Vickie is the lead tech with the most experience. It is not possible for the department to

staff the angio suite in a manner that will ensure that Vickie does not assist you during

procedures.

{¶10} “As you have made it clear that a risk to patients exists because of your

adversarial relationship, I have a duty to honor your request. Effective immediately, I

am removing you from the angiography schedule in an attempt to assure patient safety.

Your assigned work schedule will be adjusted accordingly.”

Fairfield County App. Case No. 2007 CA 00057

{¶11} On or about July 27, 2001, appellee Gerald Smidebush, M.D., and

appellee Ronald Osgood, M.D., President of appellee FIA, sent a letter to appellant

asking the “exact basis” for his “current discontent.” The two, in their letter, indicated

that they could not reasonably investigate appellant’s claims until they knew who

appellant was upset with, what had been done to him or said about him that appellant

felt was unfair, when the events occurred, and what information appellant had in support

of his allegations. When appellant, on August 28, 2001, hand delivered his written

response, appellee Ronald Osgood, M.D., called the police and indicated that appellant

had threatened him.

{¶12} Thereafter, on August 31, 2001, Mina Ubbing, the President of appellee

FMC, notified appellant that he was being summarily suspended. The Chairman of

appellee FMC’s Board of Trustees, in an undated letter to appellant, stated, in relevant

part, as follows:

{¶13} “Due to the escalation of various incidents regarding your disruptive

behavior as a Medical Staff member at Fairfield Medical Center and in order to assure a

safe environment at Fairfield Medical Center, you have been provided with notice that

effective Friday, August 31st your clinical privileges and medical Staff appointment have

been summarily suspended pending further investigation by the Board of Trustees.

(This action is being taken pursuant to our authority and obligations under The code of

Regulations of Fairfield Medical Center, Section 5.04 – Summary Suspensions.) You

were notified in person of this summary suspension by the President of the Hospital,

Mina Ubbing, on Friday, August 31st, acting on my behalf as Chairman of the Board of

Trustees….

Fairfield County App. Case No. 2007 CA 00057

{¶14} “While other issues may or may not surface during the course of our

review, the issues of concern which have led to our action are as follows:

{¶15} “Disruption of the normal function of the department as evidenced by:

{¶16} “1) complaints from staff of harassment

{¶17} “2) numerous unscheduled prolonged meetings of the radiology group

during normal business hours and after hours to address your behavior and issues

raised by you

{¶18} “3) conflict with department management and failure to take issues

regarding staff through proper channels as requested

{¶19} “4) continued imposition of personal issues upon department staff during

business hours

{¶20} “5) ongoing concern regarding your perceived threatening demeanor and

cryptic remarks which raise concerns about staff safety

{¶21} “6) failure to alter behavior in spite of requests to do so both by Hospital

Administration and the radiology group

{¶22} “7) a direct threat made by you to one of the other radiologists”

{¶23} The Chairman, in a letter to appellant dated September 7, 2001, advised

appellant that the Board of Trustees, at a meeting held the same day, had unanimously

voted to continue the summary suspension “until such time as an investigation is

completed and a decision made as to the action, if any, which should be taken…”

{¶24} On September 21, 2001, appellee FIA terminated appellant’s Employment

Agreement based on the indefinite suspension of his privileges at appellee FMC. The

termination was pursuant to Section 8 of appellant’s Employment Agreement with

Fairfield County App. Case No. 2007 CA 00057

appellee FIA. Appellee FIA, in its September 21, 2001, letter to appellant, stated that it

was not renewing his Employment Agreement ending March 20, 2002.

{¶25} As memorialized in a letter to appellant from appellee FMC’s Chairman of

the Board of Trustees dated October 18, 2001, the Board voted to continue appellant’s

summary suspension.

{¶26} In October of 2001, appellant filed a lawsuit against appellee FMC in the

United States District Court for the Southern District of Ohio, Eastern Division. Appellant

sought an injunction against appellee FMC to prevent it from reporting him to the

National Database of Physicians. Appellant and appellee FMC entered into a

Settlement Agreement and Mutual Release which stated, in relevant part, as follows:

{¶27} “i. Save and except for the agreement and obligations set forth in this

agreement, Dr. Cramer hereby releases and forever discharges Fairfield from any and

all claims, controversies, actions, demands, causes of action, debts, obligations,

damages, liabilities, duties, agreements or contracts of every kind and description,

whether known or unknown, and whether at law or in equity, which Dr. Cramer now has,

has had, or hereafter may have against Fairfield arising out of any matter, cause or

thing from the beginning of the world to the date of this Settlement Agreement,

including, but not limited to, any and all claims, causes of action, liability or damages

arising out of the acts, transactions, contracts, agreements, bylaws, occurrences or

events alleged in the pleadings or which could have been alleged in the pleadings or

other papers filed in the litigation.”

Fairfield County App. Case No. 2007 CA 00057

{¶28} The Settlement Agreement and Mutual Release defined “Fairfield” as

meaning Fairfield Medical Center, its present and former officers, directors, employees,

agents, attorneys, representatives, successors, heirs and assigns.

{¶29} Appellant’s federal case was then voluntarily dismissed with prejudice on

December 26, 2002.

{¶30} On September 20, 2005, appellant and Rebecca Cramer (aka: Rebecca

Flautt) filed a complaint against appellees FIA, FMC, Dr. Gerald Smidebush, M.D., Dr.

Ronald Osgood, M.D., and Dr. Susan Enlow, M.D. The two, in their complaint, also

named appellees Vickie Sweeney, Jennifer Martin, Jennifer Black and W illiam Lister as

defendants. Appellant filed an amended complaint on February 14, 2006. In Count One

of the amended complaint, appellant alleged that appellee FIA had breached its contract

of employment with him and its duty of good faith and fair dealing. Appellant, in Count

Two, alleged that appellee FIA had wrongfully discharged him in violation of Ohio’s

policy that protects whistleblowers and in violation of Ohio’s Quality Assurance statutes

as well as the common law of assault. Appellant and Rebecca Cramer, in Count Three

of the amended complaint, alleged that appellees Lister, Black, Sweeney, Martin,

Enlow, Smidebush and Osgood conspired to defame their good name and reputation

and conspired to tortiously interfere with appellant’s staff privileges through their gossip

and defamatory statements.

{¶31} Rebecca Cramer, in Count Four of the amended complaint, set forth

sexual harassment claims against appellee FMC. She alleged that she experienced

unwelcome sexual harassment and was retaliated against. Appellant, in Count Five of

the amended complaint, alleged that appellees Smidebush, Osgood, Enlow, Sweeney

Fairfield County App. Case No. 2007 CA 00057

and Black tortiously interfered with his relationship with appellee FMC by providing false

and salacious information that was used by appellee FMC to suspend his hospital

privileges. Finally, appellant, in Count Six of the amended complaint, alleged, as

follows:

{¶32} “51. The Defendants, FMC, fraudulently manipulated the circumstances

surrounding Plaintiff, Dr. Cramer’s allegations of improper technician performance on

patients, to make it appear as if the hospital had summarily suspended his privileges. In

fact, his hospital privileges were never suspended; the hospital failed to follow any of

the procedures outlined in the Hospital Medical By-laws for removing a physician’s

privileges, and had no basis in fact to institute such proceedings.

{¶33} “52. Defendant, FMC, refused to provide Plaintiff, Dr. Cramer with any due

process, and never properly investigated the incidents of which he complained that

could have caused serious patient injury.

{¶34} “53. The Defendants, FMC created the false threat of suspended

privileges in order to induce the Plaintiff to sign a release which would prevent Plaintiff,

Dr. Cramer, from being paid for the damage they did to his career, his finances, and his

reputation.

{¶35} “54. The Plaintiff, Dr. Cramer, received no consideration for the promise

to forebear from any suits for damages as a result of the Defendants’ FMC, and

individuals’ behavior.”

{¶36} All of the appellees filed Motions for Summary Judgment. As memorialized

in an Entry filed on August 13, 2007, the trial court granted the Motions for Summary

Judgment with the exception that the trial court denied the Motion for Summary

Fairfield County App. Case No. 2007 CA 00057

Judgment filed by appellees FMC, Lister, Black, Sweeney and Martin regarding Count

Four of the amended complaint. A jury trial on such count commenced on September

11, 2007. As memorialized in an entry filed on September 17, 2007, the jury found in

favor of Rebecca Cramer and against appellee FMC on her hostile environment sexual

harassment claim and awarded Rebecca Cramer $146,840.00. The jury found in favor

of appellee FMC on Rebecca Cramer’s retaliation claim.

{¶37} Appellant now raises the following assignments of error on appeal:

{¶38} “I. WHETHER THE TRIAL COURT ERRED IN DISMISSING DR.

CRAMER’S BREACH OF CONTRACT CLAIM SINCE THE EVIDENCE SHOWS FIA

BREACHED ITS DUTY OF GOOD FAITH AND FAIR DEALING.

{¶39} “II. WHETHER THE TRIAL COURT ERRED IN DISMISSING DR.

CRAMER’S WRONGFUL DISCHARGE CLAIMS BASED ON A CLEAR VIOLATION OF

OHIO’S POLICY PROTECTING PATIENTS FROM ASSAULT AND EMPLOYEES

WHO REPORT WORKPLACE SAFETY VIOLATIONS.

{¶40} “III. WHETHER THE TRIAL COURT ERRED IN GRANTING IMMUNITY

TO FIA PHYSICIANS UNDER HCQIA WHEN THEY PARTICIPATED IN BAD FAITH

FRAUDULENT PEER REVIEW ACTIVITIES.

{¶41} “IV. WHETHER DR. CRAMER’S CLAIM

FOR

TORTIOUS

INTERFERENCE W ITH BUSINESS RELATIONS AGAINST FIA WAS TIMELY FILED

WITHIN FOUR YEARS OF WHEN HE DISCOVERED THE HARM CAUSED BY THE

INTERFERENCE.

Fairfield County App. Case No. 2007 CA 00057

{¶42} “V. WHETHER THE TRIAL COURT ERRED IN FAILING TO SET ASIDE

A RELEASE

FRAUDULENTLY OBTAINED

BASED UPON

ILLEGAL

CONSIDERATION.”

{¶43} Summary judgment proceedings present the appellate court with the

unique opportunity of reviewing the evidence in the same manner as the trial court.

Smiddy v. The Wedding Party, Inc. (1987), 30 Ohio St.3d 35, 36, 506 N.E.2d 212.

Therefore, we must refer to Civ.R. 56(C), which provides, in pertinent part: “Summary

judgment shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence in the pending

case, and written stipulations of fact, if any, timely filed in the action, show that there is

no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. * * * A summary judgment shall not be rendered unless it

appears from the evidence or stipulation, and only from the evidence or stipulation, that

reasonable minds can come to but one conclusion and that conclusion is adverse to the

party against whom the motion for summary judgment is made, that party being entitled

to have the evidence or stipulation construed most strongly in the party’s favor.”

{¶44} Pursuant to the above rule, a trial court may not enter summary judgment

if it appears that a material fact is genuinely disputed. The party moving for summary

judgment bears the initial burden of informing the trial court of the basis for its motion

and identifying those portions of the record that demonstrate the absence of a genuine

issue of material fact. The moving party may not make a conclusory assertion that the

nonmoving party has no evidence to prove its case. The moving party must specifically

point to some evidence which demonstrates that the nonmoving party cannot support its

Fairfield County App. Case No. 2007 CA 00057

claim. If the moving party satisfies this requirement, the burden shifts to the nonmoving

party to set forth specific facts demonstrating there is a genuine issue of material fact for

trial. Vahila v. Hall, 77 Ohio St.3d 421, 429, 1997-Ohio-259, 674 N.E.2d 1164, citing

Dresher v. Burt (1996), 75 Ohio St.3d 280, 293, 662 N.E.2d 264.

{¶45} It is based upon this standard that we review appellants’ assignments of

error.

{¶46} Appellant, in his first assignment of error, argues that the trial court erred

in dismissing his breach of contract claims against appellee FIA because appellees

Osgood, M.D., Enlow, M.D., and Smidebush, M.D., who are referred to as the “FIA

Physicians,” breached their duty of good faith and fair dealing. We disagree.

{¶47} As is stated above, after appellant’s privileges at appellee FMC were

suspended, appellant’s Employment Agreement with appellee FIA was terminated in

accordance with Section 8 of the same. Section 8 states, in relevant part, as follows:

{¶48} “(a) In the event that Dr. Cramer at any time shall not be duly licensed or

otherwise legally authorized to render professional services as a radiologist in the State

of Ohio, or shall not be approved for and maintain a Medical Staff appointment at

Fairfield Medical Center or its successor in interest, then this Agreement shall

immediately and automatically terminate.”

{¶49} Appellant, now contends

that “the radiologists

[appellees Osgood,

Smidebush and Enlow] at FIA participated in the gossip sessions with the technologists

once Dr. Cramer’s affair…came to light, and exploited the tension between the

technologists and Dr. Cramer to create circumstances that led to a sham peer review

Fairfield County App. Case No. 2007 CA 00057

process that stripped Dr. Cramer’s privileges to practice at FMC” leading to the

termination of his Agreement with appellee FIA.

{¶50} However, Ohio law does not recognize a good faith and fair dealing

requirement in employment-at-will relationships. Mers v. Dispatch Printing Co. (1985),

19 Ohio St.3d 100, 105, 483 N.E.2d 150, 155; Edelman v. Franklin Iron & Metal Corp.

(1993), 87 Ohio App.3d 406, 411, 622 N.E.2d 411, 414-415. Section 7 of appellant’s

contract with appellee FIA provides that either appellee FIA or appellant could

voluntarily terminate the contract at any time without cause. While appellant argues that

Section 8, cited above which is captioned “Termination of Employment for Cause”

removes the Employment Agreement “from the ‘at will’ clause in Section 7”, we do not

agree. Although the Employment Agreement states in Section 8 that appellant’s

employment with appellee FIA will terminate if appellant loses his medical staff

appointment at appellee FMC, nowhere does the Agreement state that appellant may

only be discharged with just cause. Nor does the Agreement state that appellant’s

Employment Agreement will remain in effect as long as appellant has privileges at

appellee FMC. We find that appellant was an at-will employee and that no duty of good

faith and fair dealing was owed to him.

{¶51} While appellant also contends that appellant’s employment was not at-will

because Section 7 of the Employment Agreement permitted either side to voluntarily

terminate the Agreement by giving four months prior written notice, we disagree. It has

been held that employment terminated on the giving of a specified notice is still

employment at-will, and not employment for a specified term. See La France Electrical

Construction & Supply Co. v. Interntl. Bhd. of Electrical Workers, Local No. 8 (1923),

Fairfield County App. Case No. 2007 CA 00057

108 Ohio St. 61, 88, 140 N.E. 899. Specifically, where an employment agreement

requires a written notice of the employee’s intention to terminate employment, such a

notice provision does not “establish a term for the duration of [a] contract, but merely a

period of convenient notice[,]” and the relationship between the employer and the

employee remains at-will. Id.

{¶52} Based on the foregoing, we find that the trial court did not err in granting

summary judgment on appellant’s breach of contract claim.

{¶53} Appellant’s first assignment of error is, therefore, overruled.

{¶54} Appellant, in his second assignment of error, argues that the trial court

erred in granting summary judgment on his claim that appellee FIA had wrongfully

discharged him in violation of Ohio’s policy “protecting patients from assault and

employees who report workplace safety violations.” Appellant maintains that he was

discharged for asking for investigations into two incidents where technologists allegedly

intentionally jeopardized patient care and argues that his discharge was in violation of

public policy.

{¶55} In essence, appellant argues that FIA wrongfully discharged him because

FMC suspended his privileges for trying to report employee actions which jeopardized

the physical safety of patients.

{¶56} Pursuant to Greeley v. Miami Valley Maintenance Contractors, Inc. (1990),

49 Ohio St.3d 228, 551 N.E.2d 981, a discharged employee has a private cause of

action sounding in tort for wrongful discharge where his or her discharge is in

contravention of a “sufficiently clear public policy.” Id. at 233, 551 N.E.2d 981 (Citation

Fairfield County App. Case No. 2007 CA 00057

omitted). In Greeley, the Ohio Supreme Court recognized public policy was “sufficiently

clear” where the General Assembly had adopted a specific statute forbidding an

employer from discharging or disciplining an employee on the basis of a particular

circumstance or occurrence. The Greeley Court noted other exceptions might be

recognized where the public policy could be deemed to be “of equally serious import as

the violation of a statute.” Id. at 235, 551 N.E.2d 981. “The existence of such a public

policy may be discerned by the Ohio judiciary based on sources such as the

Constitutions of Ohio and the United States, legislation, administrative rules and

regulations, and the common law.” Painter v. Graley (1994), 70 Ohio St.3d 377, 384,

639 N.E.2d 51.

{¶57} In order to establish a claim for wrongful termination in violation of Ohio

public policy, a plaintiff must demonstrate:

{¶58} “1. That clear public policy existed and was manifested in a state or

federal constitution, statute or administrative regulation, or in the common law (the

clarity element).

{¶59} “2. That dismissing employees under circumstances like those involved in

the plaintiff’s dismissal would jeopardize the public policy (the jeopardy element).

{¶60} “3. The plaintiff’s dismissal was motivated by conduct related to the public

policy (the causation element).

{¶61} “4. The employer lacked overriding legitimate business justification for the

dismissal (the overriding justification element).” Id. at 384, fn. 8, 639 N.E.2d 51.

(Emphasis added). See also Wiles v. Median Auto Parts, 96 Ohio St.3d 240, 773

N.E.2d 526, 2002-Ohio-3994 at paragraphs 7-10.

Fairfield County App. Case No. 2007 CA 00057

{¶62} The clarity and the jeopardy elements are questions of law and policy to

be determined by the court. Collins v. Rizkana (1995), 73 Ohio St.3d 65, 70, 652 N.E.2d

653. The causation and overriding justification elements are questions of fact to be

determined by the trier of fact. Id.

{¶63} The crucial issue for determination is whether appellee demonstrated that

a clear public policy existed that prevented his discharge (the “clarity element”). See

Wiles, supra. As an initial matter, we note that appellant, in his brief, concedes that he

failed to commence a civil action under R.C. 4113.52 within 180 days of his discharge

and that any whistleblower claim under such section is time-barred. R.C. 4113.52,

Ohio’s “Whistleblower Act,” states in pertinent part: “If an employee becomes aware in

the course of the employee’s employment of a violation of any state or federal statute or

any ordinance or regulation of a political subdivision that the employee’s employer has

authority to correct, and the employee reasonably believes that the violation is a

criminal offense that is likely to cause an imminent risk of physical harm to persons or a

hazard to public health or safety, a felony, or an improper solicitation for a contribution,

the employee orally shall notify the employee’s supervisor or other responsible officer of

the employee’s employer of the violation and subsequently shall file with that supervisor

or officer a written report that provides sufficient detail to identify and describe the

violation * * *.”

{¶64} Thus, appellant was required to identify a source of public policy separate

and apart from the public policy embodied in R.C. 4113.52. See Lesko v. Riverside

Methodist Hospital, Franklin App. No. 04AP-1130, 2005-Ohio-3142 at paragraph 34. “It

was appellant’s burden to indicate the specific public policy at issue and to establish

Fairfield County App. Case No. 2007 CA 00057

how that clear public policy was violated by his termination.” Poland Twp. Bd. Of

Trustees v. Swesey, Mahoning App. No. 02 CA 185, 2003-Ohio-6726 at paragraph 10.

We concur with the trial court that appellant failed to do so. Appellant failed to identify

an additional source of public policy separate from the public policy embodied in R.C.

4113.52. Appellant was terminated by appellee FIA pursuant to Section 8 of his

Employment Agreement after his privileges at appellee FMC were summarily

suspended. Appellant has failed to allege or even argue how Ohio’s public policy was

violated by his discharge. In short, we concur with appellees that appellant has failed to

allege any facts indicating why appellee FIA discharged him or how such discharge

contravened a clear public policy. While appellant argues that his discharge was in

violation of R.C. 5122.32, which concerns confidentiality of quality assurance records,

appellant failed to show or argue how his discharge was caused by a violation of such

section or other common law claims.

{¶65} Appellant cites R.C. 2903.11, the felonious assault statute, for the

proposition that Ohio has a clear public policy “that prohibits assault, or unprivileged and

unconsenting touching of a patient.” However, such statute does not support

appellant’s contention that a “clear public policy exists separate from the dictates of

R.C. 4113.52.” McNett v. Hardin Community Fed. Credit Union, Allen App. No. 1-04-46,

2004-Ohio-6957 at paragraph 23. See, also, Evans v. PHTG, Trumbull App. No. 2001-

T-0054, 2002-Ohio-3381 at paragraph 38 in which the court held, in relevant part, as

follows: “The essence of appellant’s claim is that the public policy of this state

encourages employees to report criminal conduct occurring in the workplace to their

Fairfield County App. Case No. 2007 CA 00057

employers. However,…this particular public policy upon which appellant relies is

specifically set out in the whistleblower statute.”

{¶66} Appellant’s second assignment of error is, therefore, overruled.

III, IV

{¶67} Appellant, in his third and fourth assignments of error, argues that the trial

court erred in granting summary judgment on Counts Three and Five of appellant’s

amended complaint. We disagree.

{¶68} As is stated above, appellant, in Count Three of the amended complaint,

alleged that appellees Lister, Black, Sweeney, Martin, Enlow, M.D., Smidebush, M.D.,

and Osgood, M.D., conspired to defame his good name and reputation and conspired to

tortiously interfere with appellant’s staff privileges through their gossip and defamatory

statements. Appellant, in Count Five of the amended complaint, alleged that appellees

Smidebush, M.D., Osgood, M.D., Enlow, Sweeney and Black tortiously interfered with

his relationship with appellee FMC by providing false and salacious information that was

used by appellee FMC to suspend his hospital privileges. The trial court, in its August

13, 2007 Entry, found that such claims were time barred.1

{¶69} As the court stated in Cully v. St. Augustine Manor (Apr. 20, 1995),

Cuyahoga App. No. 67601, 1995 WL 237129, unreported:”[A] claim for conspiracy

cannot be made subject of a civil action unless something is done which, in the absence

of the conspiracy allegations, would give rise to an independent cause of action. Katz v.

Banning (1992), 84 Ohio App.3d 543, 552, 617 N.E.2d 729; Palmer v. Westmeyer

1 We note that appellant, in his third assignment of error, argues that the trial court erred in granting
immunity to appellees Enlow, M.D., Sm idebush, M.D. and Osgood, M.D. under the Health Care Quality
Immunity Act (HCQIA). However, we note that the trial court held that such appellees were entitled to
immunity as an alternative reason for granting summary judgment on counts three and five.

Fairfield County App. Case No. 2007 CA 00057

(1988), 48 Ohio App.3d 296, 300, 549 N.E.2d 1201; and Stafford v. Greater Cleveland

Regional Transit Auth. (Dec. 23, 1993), Cuyahoga App. Nos. 63663 and 65530,

unreported. Thus, the applicable statute of limitations for the underlying cause of actions

applies to the civil conspiracy charge. (Emphasis added).” Id. at 4. R.C. 2305.11

requires that an action for libel or slander, which includes defamation be brought within

one year after the cause of action accrued. A cause of action for defamation accrues

upon the date of publication of the defamatory matter or at the time the words are

spoken. See Lewis v. Delaware County JVSD, 161 Ohio App.3d 71, 2005-Ohio-2550,

829 N.E.2d 697 and Altier v. Valentic, Geaga App. No. 2003-G-2521, 2004-Ohio-5641.

{¶70} In the case sub judice, the allegedly defamatory statements were made

prior to appellant’s summary suspension of privileges in 2001. Appellant did not file his

complaint in this matter until 2005. While appellant argues that appellant’s cause of

action for conspiracy to defame did not commence until he was reasonably aware of the

injury associated with the act, we note that this Court has rejected applying the

discovery rule to defamation claims2. See Lewis, supra, at paragraph 38 (“W ith regard

to appellant’s argument that the trial court should have applied the discovery rule, we

find that the date of publication and not the discovery thereof is the time for accrual of

such an action. Snell v. Drew (Nov. 1, 1985), Lucas App. No. L-85-074, at 4, 1985 WL

8216; Rainey v. Shaffer (1983), 8 Ohio App.3d 262, 8 OBR 354, 456 N.E.2d 1328;

Palmer v. Westmeyer (1988), 48 Ohio App.3d 296, 549 N.E.2d 1202.) We find,

2The discovery rule was developed in certain bodily injury and medical malpractice cases to ease “the
unconscionable result to innocent victims who by exercising even the highest degree of care could not
have discovered the cited wrong.” [Emphasis added]. Oliver v. Kaiser Community Health Found. (1983), 5
Ohio St.3d 111, 114, 449 N.E.2d 438.

Fairfield County App. Case No. 2007 CA 00057

therefore, that the trial court did not err in finding that appellant’s conspiracy to defame

claim was time barred and granting summary judgment on such claim.

{¶71} As is stated above, appellant, in Counts Three and Five, set forth claims of

tortious interference. The statute of limitations for a claim of tortious interference with

contract is four years pursuant to R.C. 2305.09(D). Appellant, in the case sub judice,

was advised verbally by Mina Ubbing, appellee FMC’s President, on August 30, 2001

that he was being summarily suspended. At such time, appellant was escorted by

security guards off of the premises. Appellant did not file his complaint until September

20, 2005, which is more than four years after such date. Appellant argues that his

“cause of action sounding in conspiracy, or in tortious interference with contract, or with

prospective relations cannot begin to run until he [appellant] understood the magnitude

of his injury” and that he did not understand the same until he was notified by appellee

FMC on October 18, 2001 that his privileges had been suspended indefinitely and on

December 4, 2001 when appellee FIA terminated his agreement. However, appellant

knew that he had suffered an injury when he was advised on August 30, 2001 of his

summary suspension. This Court is unaware of any case law, nor does appellant cite to

any, applying the discovery rule to claims of tortious interference.

{¶72} Based on the foregoing, we find that the trial court did not err in holding

that appellant’s tortious interference claims in Counts Three and Five of the amended

complaint were time-barred and granting summary judgment on such claims.

{¶73} Appellant’s third and fourth assignments of error are, therefore, overruled.

Fairfield County App. Case No. 2007 CA 00057

{¶74} Appellant, in his fifth assignment of error, contends that the trial court

erred in granting summary judgment on Count Six of appellant’s amended complaint.

Appellant, in Count Six, had sought to set aside the Settlement Agreement and Mutual

Release between appellant and appellee FMC regarding the federal case on the basis

that the same was fraudulently obtained. According to appellant, the release “is void,

predicated on a fraudulent ‘peer review’ procedure that violated [appellee FMC’s] By-

laws, denied [appellant] due process, and forced him to sign a contract of adhesion.”

{¶75} Appellant, in Count Six of his amended complaint, specifically alleged as

follows:

{¶76} “The Defendant’s FMC, fraudulently manipulated the circumstances

surrounding Plaintiff, Dr. Cramer’s allegations of improper technician performance on

patients, to make it appear as if the hospital had summarily suspended his privileges. In

fact, his hospital privileges were never suspended; the hospital failed to follow any of

the procedures outlined in the Hospital Medical By-laws for removing a physician’s

privileges, and had no basis in fact to institute such proceedings.

{¶77} “Defendants, FMC, refused to provide Plaintiff, Dr. Cramer with any due

process, and never properly investigated the incidents of which he complained that

could have caused serious patient injury.

{¶78} “The Defendants, FMC created the false threat of suspended privileges in

order to induce the Plaintiff to sign a release which would prevent Plaintiff, Dr. Cramer,

from being paid for the damage they did to his career, his finances, and his reputation.

Fairfield County App. Case No. 2007 CA 00057

{¶79} “The Plaintiff, Dr. Cramer, received no consideration for the promise to

forebear from any suits for damages as a result of the Defendants’ FMC, and

individuals’ behavior.”

{¶80} In sum, Count Six alleges that FMC made it appear that Dr. Cramer’s

privileges had been suspended when, in fact, the privileges had not been suspended

and could not have been suspended because Dr. Cramer had not received due process

in the peer review process.

{¶81} As is stated above, appellant, in October of 2001, filed a lawsuit against

appellee FMC in the United States District Court for the Southern District of Ohio,

Eastern Division seeking an injunction against appellee FMC to prevent it from reporting

him to the National Database of Physicians. Appellant and appellee FMC entered into a

Settlement Agreement and Mutual Release and, on December 26, 2002, appellant

voluntarily dismissed his complaint against appellee FMC with prejudice. Appellant

voluntarily dismissed all claims, known or unknown, that he had against appellee FMC.

{¶82} In the case sub judice, appellant attached an affidavit to his April 3, 2006,

brief in opposition to the Motion for Summary Judgment filed by appellee FMC with

respect to Count Six. The affidavit establishes that appellant was aware of the alleged

fraud prior to his voluntarily dismissal of the claims against appellee FMC on December

26, 2002 in the federal case. Appellant, in his affidavit, alleged, in relevant part, as

follows:

{¶83} “2. I first contacted Joe Vitale at the Cleveland Clinic Foundation looking

for new employment on September 20, 2001, by sending him my CV, and had my first

Fairfield County App. Case No. 2007 CA 00057

meeting with him on September 27, 2001. It was in December, 2001, when I learned

from him that FMC had not verified that my privileges had been suspended.

{¶84} “3. In fact, they informed him that I was Active Staff.

{¶85} “4. The undated letter from James Parker, M.D., is a true and accurate

copy of the letter I received after my August 31, 2001 meeting with Mina Ubbing, where

she told me that my privileges were suspended. I did not receive that letter until a few

days after the meeting with Ms. Ubbing.

{¶86} “5. The hospital kept telling me that I was going to be given an opportunity

to request a hearing. Meanwhile, Executive Committee of the Board of Trustees met on

September 7th, 2001, and continued the ‘suspension’ of my privileges. Present at that

meeting were Mina Ubbing, James Parker, Jerome Roche, Vincent Burgess and Sandy

Davis, along with two other attorneys for the hospital.

{¶87} “6. I was not informed prior to the meeting what the factual nature of the

allegations were that provided the basis for the suspension of my privileges; I was given

only 3 or 4 minutes to talk, and was then escorted from the meeting. I was told this was

not a hearing.

{¶88} “7. I was told by a physician on the staff at the hospital that the reason for

the suspension of my privileges was to help FIA get rid of me without having to buy out

my contract.

{¶89} “8. Bill Lister bragged at a technologist’s meeting in early September,

2001, that he had gotten rid of ‘half’ the problem (referring to my summary suspension).

{¶90} “9. The termination of my employment was not finalized until December,

2002.

Fairfield County App. Case No. 2007 CA 00057

{¶91} “10. I never received the hearing I requested from FMC.

{¶92} “11. No investigation was ever conducted into the evidence I gave to the

Executive Committee, including the list of witnesses I asked them to contact on my

behalf.”

{¶93} Appellant now contends that appellee FMC withheld information that he

needed to “assess the situation at the time the prior litigation was settled.” Appellant

further alleges in his brief that only after he filed the case sub judice did he find

evidence of “Bill Lister and Jennifer Black feeding distorted and false information on a

regular basis to Dr. Osgood, Smidebush, …” and others. However, as noted by

appellees, “as confirmed by the April 3, 2006, Affidavit of Dr. Cramer …, Plaintiff-

appellant had prior knowledge of the claims he knowingly released when he signed the

Settlement Agreement and Mutual Release and authorized his attorney to file a Notice

of Voluntary Dismissal with Prejudice on December 26, 2002.” Appellant discovered the

alleged fraud between September of 2001 and December of 2001. We find that the

release bars the claims alleged in Count Six.3

{¶94} Based on the foregoing, we find that appellant has failed to create a

genuine issue of material fact with respect to the allegations contained in Count Six.

Construing the evidence in appellant’s favor, we find that appellant has failed to

demonstrate

that

the

release was

fraudulently obtained based upon

illegal

consideration.

{¶95} Appellant also alleges that the release was an unconscionable contract of

adhesion which he signed because he had no meaningful choice. In other words,

3 We note that “[i]t is axiomatic that a settlement agreement is a contract designed to terminate a claim by
preventing or ending litigation and that such agreements are valid and enforceable by either party.” Spercel v.
Sperling (1972), 31 Ohio St.3d 36, 38, 285 N.E.2d 324.

Fairfield County App. Case No. 2007 CA 00057

appellant had to sign the release or a report would have been sent to the National

Physicians Data Base (NPDB) about appellant’s privileges being suspended and that

would prevent him from obtaining employment.

{¶96} Appellant provides little analysis of this issue. But, we find that it was not

an unconscionable contract of adhesion. The appellant had a meaningful choice. He

could have pursued his litigation, and if his rights were as blatantly violated as he

alleges, then he would have prevailed in obtaining an injunction to prohibit a report

being sent to the NPDB. He decided not to take any risk. This does not make the

settlement agreement an unconscionable contract of adhesion.

{¶97} Appellant’s fifth assignment of error is, therefore, overruled.

{¶98} Accordingly, the judgment of the Fairfield County Court of Common Pleas

is affirmed.

By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

JAE/0925

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JUDGES

Fairfield County App. Case No. 2007 CA 00057

[Cite as Cramer v. Fairfield Med. Ctr., 2009-Ohio-3338.]

IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO

FIFTH APPELLATE DISTRICT

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JUDGMENT ENTRY

CASE NO. 2007 CA 00057

Plaintiff-Appellant

TIMOTHY CRAMER, M.D.

-vs-

FAIRFIELD MEDICAL CENTER, et al.,

Defendant-Appellee

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Fairfield County Court of Common Pleas is affirmed. Costs assessed

to appellant.

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JUDGES