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Tort/Negligence – Defamation – Tortious Interference with Contract – Physician – Hospital Privileges – Administrative Remedies

Tort/Negligence – Defamation – Tortious Interference with Contract – Physician – Hospital Privileges – Administrative Remedies

Philips v. Pitt County Memorial Hospital Inc. (Lawyers Weekly No. 12-07-0881, 30 pp.) (Linda Stephens, J.) Appealed from Pitt County Superior Court. (Richard L. Doughton, J.) N.C. App.

Holding: The statutes of limitations that apply to the plaintiff-doctor’s tort claims against the defendant-hospital and his fellow physicians were not tolled by administrative proceedings within the hospital because, in his tort action, plaintiff seeks monetary damages, which were not available in the hospital’s administrative proceedings.

We affirm the trial court’s grant of defendants’ motions to dismiss and for summary judgment.

The trial court entered a protective order pursuant to G.S. § 131E-95(b), ruling that materials considered or produced by the hospital’s medical review committees were privileged. Plaintiff did not appeal the protective order, so he cannot rely on materials from the administrative proceedings to support his claims.

Because of the protective order, plaintiff cannot produce any evidence regarding the sole factual allegation that forms the basis for his tortious interference claim against defendant Bolin: “As a direct consequence of testimony provided by Whatley and Bolin at the Fair Hearing, findings and recommendations were made by the hearing panel, and corrective action that suspended and then terminated [plaintiff’s] medical staff privileges was taken.” Because plaintiff’s complaint discloses a fact that necessarily defeats the claim, dismissal was proper. Likewise, to the extent plaintiff’s tortious interference claim against Whatley is based upon Whatley’s testimony  before the medical review committees, dismissal of that claim was proper.

Although plaintiff contends that Whatley told the wife of a dialysis patient to find her husband another doctor because plaintiff “had a problem” at the hospital, this remark was allegedly made in April of 2005. Since plaintiff’s complaint was not filed until August 12, 2009, plaintiff’s tortious interference with contract claim against Whatley is barred by the statute of limitations.

Plaintiff did not assert his tortious interference with contract claim against the hospital until August of 2009. To the extent the claim is based on the initiation of the investigation in September 2004, it is barred by the statute of limitations.

Furthermore, the hospital’s board of trustees’ decisions regarding corrective action were based upon the findings and recommendations of the medical review committees, the proceedings and records of which are privileged by the protective order. Without the ability to discover those materials or present them at trial, plaintiff cannot show that any recommendations produced by the medical review committees were unjustified, and without being able to show fault in those recommendations, plaintiff cannot show that the board of trustees acted without justification in relying upon those recommendations in suspending and then terminating his hospital privileges. Accordingly, the trial court’s dismissal of plaintiff’s tortious interference with contract claims is affirmed.

Even though plaintiff contends the hospital altered his patients’ records and then used the altered records against him in its administrative proceedings, the alterations allegedly occurred in 2004 and earlier, more than three years prior to the filing of plaintiff’s complaint in August 2009. In addition, the complaint alleges that plaintiff met with Whatley and others in July 2004 to discuss this issue, indicating that plaintiff was aware of the hospital’s allegedly fraudulent actions at that time. Plaintiff’s fraud claim is barred by the statute of limitations.

The doctrine of exhaustion of administrative remedies does not apply when a plaintiff seeks damages and the administrative remedies are non-monetary in nature. Plaintiff sought monetary damages for his claims of tortious interference with contract and fraud. However, the hospital’s bylaws, which govern the administrative review and appeals process at issue, do not provide for monetary damages. Accordingly, the doctrine of the exhaustion of administrative remedies is inapplicable.

G.S. § 131E-95 states, “A member of a duly appointed medical review committee who acts without malice or fraud shall not be subject to liability for damages in any civil action on account of any act, statement or proceeding undertaken, made, or performed within the scope of the functions of the committee.”

Plaintiff’s contentions of malice and fraud are largely based on allegations that defendants Whatley, Bolin, and other medical staff who served on or testified to the various committees were economic competitors and/or biased against him.

However, plaintiff presents no evidence that any person was motivated by malicious intent. Further, many of the purported actions or omissions of Whatley, Bolin, and others concern their participation with the committees involved in the investigations of and corrective actions against plaintiff. As such, under the terms of the protective order, plaintiff cannot discover or present evidence as to any of these allegations. Thus, plaintiff cannot meet his responsibility to come forward with facts, as distinguished from allegations, sufficient to indicate that he will be able to sustain his claims at trial.

Where the protective order bars plaintiff from presenting any evidence of the proceedings or evidence before the medical review committee, he cannot establish the falsity of the committees’ decisions. Accordingly, the hospital was entitled to summary judgment on plaintiff’s defamation claims related to the hospital’s statutorily required reports of the suspension of plaintiff’s hospital privileges.



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