Catipay v. Humility of Mary Health Partners

[Cite as Catipay v. Humility of Mary Health Partners, 2006-Ohio-1700.]

THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

– vs –

Plaintiff-Appellant,

Defendants-Appellees.

O P I N I O N

CASE NO. 2005-T-0030

ANTHONY C. CATIPAY, M.D.,

HUMILITY OF MARY HEALTH
PARTNERS, et al.,

Civil Appeal from the Court of Common Pleas, Case No. 03 CV 392.

Judgment: Affirmed.

Anthony C. Catipay, M.D., pro se, 701 Summit Avenue, #96, Niles, OH 44446
(Plaintiff-Appellant).

John N. Childs and Joseph A. Shoaff, 75 East Market Street, Akron, OH 44308 (For
Defendants-Appellees).

PER CURIAM

{¶1} Anthony C. Catipay, M.D., appeals from the judgment of the Trumbull

County Court of Common Pleas, which granted summary judgment to appellees on

appellant’s claims for breach of contract, violation of due process, interference with

business relationships, defamation, and deceptive and unfair trade practices. We

affirm.

{¶2} Appellant received staff privileges to practice at appellee St. Joseph

Health Center in 1984. In 1999 appellant began to exhibit troubling behavior. This

behavior included such things as posting the “Kama Sutra Indian Sex Guide” on a

hospital bulletin board, posting an article titled “Police say man kills wife at work” in the

labor and delivery unit, with appellant’s hand-written comments stating, “This happens

when wives talk too much. They never learn, they never stop. Why?” Appellant posted

this article shortly after a heated argument with a nurse, and it was viewed as a threat.

While on vacation, appellant sent a postcard containing pictures of naked men’s

ocks to the nurses’ station with his name or the name of an actor written on each

man’s ocks. Appellant also sent other inappropriate postcards to hospital staff.

Appellant posted an article titled, “Cohabitation, Contraception, and Sperm Exposure”

on a bulletin board with a bulleted item referring to oral sex. A nurse also completed an

incident report wherein she described appellant discussing with her why men enjoy

performing oral sex on women and the taste of female ejaculation.

{¶3} On March 28, 2000, Dr. Kenneth Heaps, Vice President of Medical Affairs,

and Dr. Charles Curtiss, President of the Medical Staff, met with appellant to discuss his

behavior. As a result of that meeting, appellant signed a letter wherein he agreed to

refrain from such conduct. However, appellant continued to engage in inappropriate

behavior.

{¶4}

In November, 2001, appellant sent Dr. Heaps a letter that referenced the

movie “The God Father” and made other bizarre comments. Dr. Heaps contacted a

psychiatrist who reviewed the letter. The psychiatrist concluded appellant’s conduct

was disturbing and recommended the hospital require appellant to undergo a

psychiatric evaluation to ensure appellant did not pose a risk of harm to others.

{¶5} Appellant continued to harass pediatricians for what he perceived to be

inadequate neonatal resuscitation coverage. Appellant subsequently apologized for this

criticism and promised to stop such attacks; however, he failed to do so.

{¶6} Further, appellant failed to notify St. Joseph that his medical privileges had

been revoked by Trumbull Memorial Hospital. St. Joseph’s by-law required appellant to

provide such notice in a “timely manner.”

{¶7} Subsequently, St. Joseph’s Medical Executive Committee requested

appellant undergo a psychiatric evaluation by Dr. Phillip Resnick. Appellant refused to

participate in the evaluation. The Medical Executive Committee suspended appellant’s

medical privileges. As grounds for this suspension, the committee cited appellant’s

inappropriate conduct toward hospital staff, inappropriate communications with Dr.

Heaps, failure to inform St. Joseph of his loss of privileges at Trumbull Memorial

Hospital, and refusal to participate in a psychiatric evaluation. The committee’s letter of

suspension informed appellant of his right to a hearing.

{¶8} Appellant subsequently requested a hearing and St. Joseph granted this

request in spite of the fact the request was made after the expiration of the time limit

within which appellant was required to demand a hearing.

{¶9} A hearing on appellant’s suspension was held and the hearing panel

unanimously recommended that the suspension be upheld. Appellant appealed this

decision to the hospital’s board of directors, which upheld the hearing panel’s

recommendation.

{¶10} Appellant subsequently filed the instant action against appellees alleging

claims of breach of contract, violation of due process, interference with business

relationships, defamation, and deceptive and unfair trade practices. Appellees moved

for summary judgment arguing they were entitled to immunity under the Health Care

Quality Improvement Act, (“HCQIA”), 42 U.S.C. §11111 et seq. The trial court granted

appellees’ motion. Appellant filed a timely appeal, raising three assignments of error:

{¶11} “[1.] The trial court erred in granting summary judgment because the

record contained evidence sufficient to create genuine issues of material fact regarding

(1) breach of contract, (2) interference with business relations, (3) defamation, and (4)

unfair and deceptive trade practices.”

{¶12} “[2.] The trial court erred by granting summary judgment based on

Defendants-Appellees being entitled to immunity under [42 U.S.C. §11111 et seq.] and

[R.C.] 2305.251.”

{¶13} “[3.] The trial court erred by granting immunity to Defendants-Appellees

because this action violates public policy and allows Defendants-Appellees to shield

themselves [from] liability.”

{¶14} For ease of discussion, we address appellant’s assignments of error out of

order.

{¶15} In his third assignment of error, appellant argues HCQIA violates public

policy. This argument is unpersuasive.

{¶16} First, appellant cites no authority to support this argument. Second, as we

discuss below, HCQIA clearly reflects a public policy decision to shield peer review

committees from liability when performing their peer review functions. It is not our role

to second-guess a legislative body’s determination of which public policy position to

favor when enacting legislation. Appellant’s third assignment of error is without merit.

{¶17} In his second assignment of error, appellant argues the trial court erred in

finding appellees were entitled to immunity under HCQIA. We disagree.

{¶18} We review a grant of summary judgment de novo, Grafton v. Ohio Edison

Co. (1996), 77 Ohio St.3d 102, 105, 1996-Ohio-336, i.e., independently and without

deference to the trial court’s determination. Lexford Prop. Mgmt., L.L.C. v. Lexford

Prop. Mgmt., Inc. (2001), 147 Ohio App.3d 312, 315-316.

{¶19} Summary judgment is proper when: (1) no genuine issue as to any

material fact remains to be litigated; (2) the moving party is entitled to judgment as a

matter of law; and (3) it appears from the evidence that reasonable minds can come to

but one conclusion, and viewing such evidence most strongly in favor of the party

against whom the motion is made, that conclusion is adverse to that party. Harless v.

Willis Day Warehousing, Inc. (1978), 54 Ohio St.2d 64, 66.

{¶20} “[A] party seeking summary judgment, on the ground that the nonmoving

party cannot prove its case, bears the initial burden of informing the trial court of the

basis of the motion, and identifying those portions of the record that demonstrate the

absence of a genuine issue of material fact on the essential element(s) of the

nonmoving party’s claims.” Dresher v. Burt (1996), 75 Ohio St.3d 280, 293.

{¶21} If the moving party has satisfied this initial burden, the nonmoving party

has a reciprocal burden under Civ.R. 56(E) to set forth facts showing there is a genuine

issue for trial. Id. at 293; see also, Meyers v .Columbia/HCA Healthcare Corp. (6 C.A.

2003), 341 F.3d 461, 466.

{¶22} Congress intended HCQIA to provide effective peer review and interstate

monitoring of incompetent physicians. Austin v. McNamara (9 C.A. 1992), 979 F.2d

728, 733. HCQIA also provides limited immunity to those who participate in the peer

review process. Id. To this end, HQCIA provides:

{¶23} “If a professional review action *** of a professional review body meets all

the standards specified in [42 U.S.C. §11112(a)], except as provided in subsection (b) –

–

and

{¶24} “(A) the professional review body,

{¶25} “(B) any person acting as a member or staff to the body,

{¶26} “(C) any person under a contract or other formal agreement with the body,

{¶27} “(D) any person who participates with or assists the body with respect to

the action,

{¶28} “shall not be liable in damages under any law of the United States or of

any State *** with respect to the action.” 42 U.S.C. §11111(a)(1).

{¶29} 42 U.S.C. §11112(a) sets forth the standards for professional review

actions. This section states:

{¶30} “For purposes of the protection set forth in [42 U.S.C. §11111(a)], a

professional review action must be taken – –

{¶31} “(1) in the reasonable belief that the action was in furtherance of quality

health care,

{¶32} “(2) after a reasonable effort to obtain the facts of the matter,

{¶33} “(3) after adequate notice and hearing procedures are afforded to the

physician involved or after such other procedures as are fair to the physician under the

circumstances, and

{¶34} “(4) in the reasonable belief that the action was warranted by the facts

known after such reasonable effort to obtain facts and after meeting the requirement of

paragraph (3). A professional review action shall be presumed to have met the

preceding standards necessary for the protection set out in [42 U.S.C. §11111(a)]

unless the presumption is reed by a preponderance of the evidence.” 42 U.S.C.

§11112(a).

{¶35} Because of

the reable presumption established by 42 U.S.C.

§11112(a)(3) the question we ask in this summary judgment exercise is: “Might a

reasonable jury, viewing the facts in the best light for [appellant], conclude that he has

shown, by a preponderance of the evidence, that the defendants’ actions are outside

the scope of §11112(a)?” Austin, supra at 734.

{¶36} The record shows appellees established they were entitled to immunity

under HCQIA. Appellees presented evidence to establish appellant’s privileges were

suspended with the reasonable belief that the action was in furtherance of quality health

care. Appellees established appellant had engaged in inappropriate and disruptive

behavior toward hospital staff, including making what were perceived as threats;

appellant’s privileges had been revoked by another hospital for similar behavior;

appellant had verbally abused other physicians, and appellant had refused to seek a

psychiatric evaluation. Appellees were only required to show the suspension occurred

with the reasonable belief the action furthered quality health care. They were not

required to show appellant’s conduct had actually injured in a patient. Rooney v.

Medical Ctr. Hosp. (U.S. Dist. S.D. Ohio, March 30, 1994), 1994 U.S. Dist. LEXIS 7420,

10. Courts have held that the suspension of privileges for inappropriate or disruptive

behavior can be in the furtherance of quality health care. See, id. at 8; Bryan v. James

E. Holmes Regional Medical Ctr. (11 C.A. 1994), 33 F.3d 1318, 1335 (stating, “The

record in this case reveals that the revocation of Bryan’s privileges was prompted by the

reasonable belief that doing so would promote quality health care. Bryan had exhibited

a pattern of unprofessional conduct over a period of many years, and he was given a

series of opportunities to remedy his difficulties in interacting with other staff members.”)

{¶37} Appellees made a reasonable effort to ascertain the facts. They met with

appellant to discuss his behavior, consulted with a psychiatrist about the problem,

asked appellant to be evaluated by a psychiatrist, and conducted a hearing on the

suspension.

{¶38} Appellees revoked appellant’s privileges after adequate notice and

hearing procedures or after such other procedures as were fair to appellant under the

circumstances.

Before suspending appellant’s privileges, appellees requested

appellant submit to a psychiatric examination. Only after appellant refused to do so did

appellees suspend appellant’s privileges. Appellees warned appellant that such action

might be taken if appellant refused to cooperate. After appellees suspended appellant’s

privileges, appellant was afforded a hearing where he had the opportunity to present

evidence and cross-exam witnesses. Appellant was represented by counsel at this

hearing. After the hearing panel upheld the suspension, appellant was afforded a right

of appeal.

{¶39} Finally, appellees established appellant was suspended in the reasonable

belief that the action was warranted by the facts known after such reasonable effort to

obtain facts and after affording appellant notice and a hearing.

{¶40} After appellees met their burden, the burden shifted to appellant to rebut

the presumption of immunity. Appellant failed to present evidence to establish a

genuine issue of material fact as to whether appellees’ actions were outside the scope

of §11112(a). Austin, supra at 734. Thus, appellees were entitled to immunity from

appellant’s claims and the trial court properly granted appellees’ motion for summary

judgment.

{¶41} Appellant’s second assignment of error is without merit.

{¶42} Our resolution of appellant’s second assignment of error determines the

resolution of appellant’s first assignment of error. Appellees were entitled to immunity

on all of appellant’s claims under 42 U.S.C. §11111(a)(1); therefore, the trial court

properly granted appellees summary judgment on appellant’s claims for breach of

contract, violation of due process, interference with business relationships, defamation,

and deceptive and unfair trade practices.

{¶43} For the foregoing reasons, appellant’s assignments of error are without

merit, and the judgment of the Trumbull County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J., CYNTHIA WESCOTT RICE, J., COLLEEN M. O’TOOLE, J.,

concur.