12 Samuel v. Herrick Memorial

Hosp., et al.

No. 99-1462

Obstetricians and Gynecologists concluded that plaintiff hadexercised "poor judgment" and had failed to "demonstrateforesight to anticipate complications of care." Id. TheAmerican College of Obstetricians and Gynecologists reportalso stated that plaintiff's "failure to recognize critical signs offetal and maternal compromise prevents him fromrecognizing the need to seek assistance of from providingoptimal obstetric care based on recognized, publishedstandards of care." Id. Finally, the American College ofObstetricians and Gynecologists concluded that "[a]ttempts torehabilitate [plaintiff] within Herrick Memorial Hospital cannot succeed due to lack of patient volume, acuity of care, andpersonal-social relationships previously established at thishospital." Id. Based on this report, we believe that anydamage that may be done to plaintiff's professional reputationis substantially outweighed by the harm that defendants andthe public would suffer if plaintiff continues to practicemedicine without additional training. Because the balance ofharms weighs against granting the preliminary injunction, andbecause plaintiff is not likely to prevail on the merits, weconclude that the district court abused its discretion when itgranted the preliminary injunction in this case. 

We have interlocutory appellate jurisdiction in this case

only to review the propriety of the injunction under 28 U.S.C.§ 1292(a)(1), not to review on an interlocutory basis thedenial of defendants' motion for summary judgment.Accordingly, the preliminary injunction is dissolved.

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

DONALD R.

SAMUEL, M.D.,

Plaintiff-Appellee,

v.

HERRICK 

MEMORIAL

HOSPITAL, LENAWEE 

HEALTH

ALLIANCE, D

R. LAURIE

BARKWAY, DAVID 

HICKMAN,

D

R. MICHAEL 

SAMMARCO,

MICHAEL 

MIHORA, JOHN

ROBERTSTAD, HAROLDEASTON and LINDA 

YIELDING, 

Defendants-Appellants.

Appeal from the United St

for the Eastern District of Mi

No. 99-60140—George C. S

Argued: June 9

Decided and Filed: Jan

Before: MERRITT, DAUGHTRE

Judges. 
2 Samuel v. Herrick Memorial

Hosp., et al.

No. 99-1462

_________________

COUNSEL

ARGUED: David A. French, MILLER, CANFIELD,PADDOCK & STONE, Ann Arbor, Michigan, forAppellants. Robert A. Maxwell, DENISON & MAXWELL,Bloomfield Hills, Michigan, for Appellee. 

_________________

OPINION

_________________

MERRITT, Circuit Judge. This appeal from a grant of a

preliminary injunction concerns the suspension of staffprivileges to plaintiff, Donald Samuel, M.D., anobstetrician/gynecologist, by defendant Herrick MemorialHospital. After Herrick Memorial suspended plaintiff's staffprivileges, he moved the district court for a preliminaryinjunction enjoining the suspension. The district courtgranted the injunction, thereby reinstating plaintiff's privilegeswith certain conditions. Defendants appealed the grant of theinjunction to this Court. This Court stayed enforcement of theinjunction by order dated May 14, 1999. The case comes toour panel from the motions docket and we heard oralargument on the motion to stay. For the reasons that follow,we now vacate the injunction and remand the case to thedistrict court for further proceedings.

I.

Plaintiff is an African-American physician with a private

practice in Tecumseh, a small community between Toledo,Ann Arbor and Detroit. He attended medical school inToledo and completed his residency in obstetrics andgynecology at a hospital in Michigan. He set up a practice inTexas and, in 1990, he was recruited by Herrick Memorial tobe its staff OB/GYN because Tecumseh did not have one inthe community. In 1992, plaintiff set up a private practice,

No. 99-1462 Samuel 

interfere with plaintiff's business reabove, we do not believe plaintiff success on the merits of the underbases for his conspiracy claim. Nspecifics as to how defendants Basically, plaintiff has alleged thadrive him out of business either bbecause they did not want any comand gynecology area. Plaintiff osupport for these conspiracy theoriSammarco and the results of the explained above, thus far plaintiff demonstrating an improper motiTherefore, we do not find that plalikelihood of success on the munderlying any of these claims. 

We also believe that the dist

determined that the balance of harfavor of granting the preliminary court granted the preliminary injuncthat the sanctions imposed by tirreparable harm to the plaintiff's the community. See Order Granti

at 7 ("[P]laintiff is facing not insolvency if injunctive relief destruction of his professional repuof any chance to rebuild his npractice.") In reaching its decision, failed to give sufficient weight to and the public would suffer if thcontinue to practice obstetrics and receiving further medical training.

Indeed, the results of the on-site 

by the American College of Obsteshow that plaintiff's poor judgmenhave endangered his patients on seSite Visit at 30. In its report, t
10 Samuel v. Herrick Memorial

Hosp., et al.

No. 99-1462

Gen. Hosp., 229 Conn. 592, 643 A.2d 233 (1994); LewisburgComm. Hosp., Inc. v. Alfredson, 805 S.W.2d 756 (Tenn.1991); Wong v. Garden Park Comm. Hosp., Inc., 565 So. 2d550 (Miss. 1990); Bouquett v. St. Elizabeth Corp., 43 Ohio St.3d 50, 558 N.E.2d 113 (1989); Bock v. John C. LincolnHosp., 145 Ariz. 432, 702 P.2d 253 (Ariz. Ct. of App. 1985);Spencer v. Community Hosp. of Evanston, 87 Ill. App. 3d214, 408 N.E.2d 981 (1980); Margolin v. Morton F. PlantHosp. Ass'n, Inc., 348 So. 2d 57 (Fla. App. 1977). Michigan

follows an even more stringent rule that does not allow anyreview, even to ensure that the methods put forth by hospitalfor peer review are followed. See, e.g., Sarin v. SamaritanHealth Center, 176 Mich. App. 790, 795, 440 N.W.2d 80(1989); accord Zipper v. Health Midwest, 978 S.W.2d 398

(Mo. App. 1998); Winston v. American Med. Int'l, Inc., 930

S.W.2d 945 (Tex. Civ. App. – Houston 1997). The thirdoption, followed by a small but apparently growing numberof states, allows judicial review to ensure that the hospital'sdecision was not arbitrary and capricious or otherwiseunreasonable. The laws in these jurisdictions require that thehospital's decision to suspend or otherwise limit a physician'saccess to the hospital facilities be supported by "some"evidence or allow some further analysis beyond review onlyof adherence by the hospital to its procedures. See, e.g.,Cooper v. Delaware Valley Med. Center, 539 Pa. 620, 654A.2d 547 (1995); Zoneraich v. Overlook Hosp., 212 N.J.Super. 83, 514 A.2d 53 (1986).

In light of Michigan's flat rule against judicial intervention,

we conclude that the district court erred in finding alikelihood of success on the merits on the tortious interferencewith contractual relations and business relationships claim.

4. Conspiracy ClaimPlaintiff's conspiracy claim includes allegations of a

conspiracy to unreasonably restrain plaintiff from practicingmedicine in the community, a conspiracy to discriminateagainst plaintiff based on his race and a conspiracy to

No. 99-1462 Samuel 

with financial backing by Herricextended staff privileges at Herribecame Chief of Staff at the hospi

In 1996, defendant Lenawee H

Herrick Memorial and nearby Hospital, the only two hospitals in under a joint operating agreementopponent of this joint venture and cbeen trying to drive him out ever Lenawee Health Alliance startOB/GYN, despite plaintiff's protesupport another OB/GYN. Over tSammarco, who is white, was hireHerrick Memorial. 

In October 1998 one of plain

hemorrhaging after a caesarean dplaintiff's first maternal death in 1the death, the hospital required hiphysician, in this case Dr. Sammarcat Herrick Memorial, upon admittiThis monitoring arrangement went the pendency of the hearing procesbylaws, and continued until this Cothe injunction and reimposed the sMay at the request of defendants. 

The hospital's Ad Hoc Hearing 

on January 27, 1999, at which two plaintiff's competence and stated blame for the death. On FebruaHearing Committee recommended Committee that the monitoring be results of an external review to be cCollege of Obstetricians and GyExecutive Committee rejected trecommendation and the monitori
4 Samuel v. Herrick Memorial

Hosp., et al.

No. 99-1462

In February 1999, three reviewers from the American

College of Obstetricians and Gynecologists conducted an onsite review of Herrick Memorial's obstetrics unit, at thehospital's request. One reviewer was the Director of MedicalEducation in the Department of Obstetrics and Gynecology atChildren's Hospital in Buffalo, New York, and another, anAfrican-American, was from the Department of Obstetricsand Gynecology at the University of Chicago. The thirdreviewer was a medical writer and computer specialist. Thereview included interviews with staff members and a reviewof some of plaintiff's case charts, although the reviewers knewplaintiff only as "Physician A." 

At the exit interview with hospital staff, the independent

reviewers issued a preliminary report recommending thatplaintiff undergo a six-month, intensive training program atthe residency level before he be allowed to continue thepractice of medicine. On March 4, 1999, based on thereviewers' preliminary report given at the exit interview, theExecutive Committee recommended suspension of plaintiff'sprivileges pending his completion of a six-month remedialcourse in obstetrics/gynecology in a program approved by theExecutive Committee. Plaintiff had thirty days to apply forsuch a program. Failure to comply with these conditionswould result in termination of his privileges. 

The next day, March 5, 1999, plaintiff filed a complaint

alleging discrimination on the basis of race, antitrustviolations and state law tort and contract claims. Plaintiffalso moved for a preliminary injunction to lift the suspension,which was granted in part by the district court withinstructions to defendants to institute monitoring proceduresfor plaintiff instead of suspending his privileges. Specifically,the complaint alleges (1) violations of 42 U.S.C. § 1981 basedon defendants' interference with Samuel's business contractsand expectancies based on race (Count I), (2) that defendantsacted in concert to revoke his staff privileges and eliminate

OB/GYN competition within Lenawee County in violation ofthe Sherman Antitrust Act, 15 U.S.C. §§ 1 et seq. (Count II),

No. 99-1462 Samuel 

1Florida has eliminated the distinct

hospitals for purposes of judicial reviehospital must promulgate bylaws and tcontract between the physician and the hbreached its contract with him aspecific review of whether the hprocedures in suspending him, he intervention into the decision of a phis staff privileges. A decision omatter for judicial intervention and would make a "mockery of the rreview of such decisions by private N.W.2d at 83.

The judicial reviewability of med

been debated and continues to bMost physicians are not employed are independent contractors who ara hospital, including its staff and procedures for granting or renestandards by which a doctor membodied in the hospital's bylaws

Most jurisdictions distinguish b

hospitals, with the staffing decisubject to the due process and equunder the United States Constdecisions of private hospitals gsubject to very limited judicial reviof judicial review may differ beprivileges as an initial matter asuspend existing privileges. 

The rule generally forbidding j

decisions by private hospitals appein the United States, although limited judicial review to ensurfollowed its own procedures. See, 
8 Samuel v. Herrick Memorial

Hosp., et al.

No. 99-1462

alleged, plaintiff is complaining of nothing more than adecrease or potential decrease in patients from competition.Based on the facts in the record at this time, we do not see alikelihood on the merits of the antitrust claim. 

3. Tortious Interference with Contractual Relations and

Business Relationships Claim

As to the tortious interference claim, the claim on which the

district court found the most chance of success by plaintiff,Michigan law is very clear that claims arising from the peerreview process are not judicially reviewable. The districtcourt therefore did not have jurisdiction to review this claim.Under Michigan law, a private hospital is empowered toappoint and remove its members at will without judicialintervention and has the right to exclude any doctor frompracticing therein. Muzquiz v. W.A. Foote Mem. Hosp., Inc.,

70 F.3d 422, 430 (6th Cir. 1995); Long v. Chelsea CommunityHosp., 219 Mich. App. 578, 586, 557 N.W.2d 157, 161(1996); Sarin v. Samaritan Health Center, 176 Mich. App.790, 795, 440 N.W.2d 80 (1989); Veldhus v. Central Mich.Community Hosp., 142 Mich. App. 243, 246, 369 N.W.2d478, 479-80 (1985); Hoffman v. Garden City Hosp.-Osteopathic, 115 Mich. App. 773, 778-79, 321 N.W.2d 810(1982). 

The only exception to this nonreviewability rule arises

when defendants have been accused of violating state orfederal law, such as state or federal discrimination laws. Thedistrict court was free to review the federal antitrust anddiscrimination claims, as we did above, but it was withoutjurisdiction to review plaintiff's claim of tortious interferencewith contractual relations and business relationships, as arewe, because it would necessarily involve a review of thedecision to suspend plaintiff and the methods or reasonsbehind that action, which is clearly prohibited under Michiganlaw as improper interference with the hospital's decisions andthe peer review process. See Sarin at 791-92, 440 N.W.2d

at 80. Although plaintiff does not allege that the hospital

No. 99-1462 Samuel 

(3) a state law claim of tortious iexpectancy and relationships (Coucivil conspiracy among defendarestrain plaintiff from practicing mcontracts with patients and (c) d(Count IV), (5) defamation regplaintiff's ability to practice medic(Count V), (6) a violation of threasonable notice and a hearing priproperty interest to practice medic

After a hearing held March 8, th

preliminary injunction in part and omonitoring process. On March 15for dismissal of the complaint or hearing held March 16, the district of the monitoring process. 

On April 14, 1999, the court 

(Count V) and due process (CouRule 12(b)(6), but refused to dismgrant defendants' motion for summit believed the state law claim for the strongest claim. In a separate the district court granted the prelibecause (1) it found that plaintifsucceeding on the merits with interference with business expectathat plaintiff would be irreparabcareer by the suspension. The dismonitoring remain in place to community. On April 26, 1999, stay of the injunction pending apconference, the district court apprproposed by plaintiff, which calltelephonically with several doctors admission. Defendants did not oregarding monitoring and maintain
6 Samuel v. Herrick Memorial

Hosp., et al.

No. 99-1462

unsatisfactory and unethical in light of the magnitude ofplaintiff's alleged deficiencies.

Defendants appealed the denial of the stay of the injunction

pending appeal and filed an interlocutory appeal of the denialof their summary judgment motion. This Court stayedenforcement of the injunction, thereby reimposing thesuspension of plaintiff's staff privileges at the hospital, butalso set the appeal on an expedited basis.

II.

When ruling on a motion for preliminary injunction, the

district court considers four factors: (1) whether the movantis likely to prevail on the merits; (2) whether the movantwould suffer irreparable injury if the court does not grant theinjunction; (3) whether a preliminary injunction would causesubstantial harm to others and (4) whether a preliminaryinjunction would be in the public interest. Glover v. Johnson,

855 F.2d 277, 282 (6th Cir. 1988). We review the districtcourt's determination under an abuse of discretion of standard.Id.

Likelihood of Success on the Merits

We agree with the district court that there is minimal

evidence in the record to demonstrate a likelihood of success

on the merits of plaintiff's claims. Order Granting PreliminaryInjunction at 13 n.2 ("Plaintiff has not argued, at least notwith any serious conviction, that any of his other claims[other than the tortious interference claim] are likely tosucceed on the merits."). The facts alleged in the complaintare barely adequate to survive a motion to dismiss on thefederal discrimination and antitrust claims, although aftermore discovery it may be possible for plaintiff to adducefurther evidence on these claims. 

No. 99-1462 Samuel 

1. Racial DiscriminationPlaintiff alleges that Herrick 

against him based on race in violaHowever, no specific examples against him are recited in his compconcerning possible racial disMemorial against a third party whhospital, but offers neither actual nregarding conduct against him. Tcited to support his claim are thSammarco, who is white, and his breviewed and suspended after nonminority doctors were treated circumstances. Based on these facsee a likelihood of success on the 

2. Antitrust ClaimAs to the antitrust claim, plaintif

wishes to drive him out of businesgreater revenue from patients seeinstaff physician, instead of plaintifand has hospital privileges. In othhired Dr. Sammarco and then useimproperly to restrain access to thgynecological services. First, defendants may be immune from properly conducted peer review pQuality improvement Act of 198seq., provides antitrust immunity fconducted peer review processes. St. Joseph Hosp. of Mt. Clemens, (6th Cir. 1992). Second, plaintiff hthat demonstrate that there was anbehind the hiring of Dr. SammarcThe allegations are based only motivation behind these actions. about the motives behind the c