Motions, Pleadings and Filings

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United States District Court,

N.D. Texas, Dallas Division.

Lawrence R. POLINER, M.D. and Lawrence R. Poliner, M.D., P.A., Plaintiffs,

v.

TEXAS HEALTH SYSTEMS, a Texas non-profit corporation, d/b/a Presbyterian

Hospital of Dallas, and James Knochel, M.D., Defendants.

No. Civ.A.3:00-CV-1007-P.

March 27, 2006.

 Michael A. Logan, Boyd A. Mouse, Jeffrey Scot Seeburger, Karin Marshall Zaner, Kane Russell Coleman & Logan, Deborah G. Hankinson, Law Office of Deborah Hankinson, Edward Jason Dennis, Michael P. Lynn, Richard A. Smith, Lynn Tillotson & Pinker, Dallas, TX, for Plaintiffs.

 Lea F. Courington, Russell Hendrix Roden, Gwinn & Roby, Thomas S. Leatherbury, Vinson & Elkins, Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

 SOLIS, J.

 *1 Now before the Court are five post-trial motions: (1) Plaintiffs' Motion for Judgment, filed September 16, 2005; (2) Defendants' Renewed Motion for Judgment as a Matter of Law, filed October 3, 2005; (3) Defendant's Request for Oral Argument, filed September 16, 2005; (4) Defendants' Motion for a New Trial, filed September 16, 2005; and (5) Plaintiffs' Post-Trial Petition for Attorneys' Fees, Expenses, and Costs, filed August 23, 2005.

 After careful consideration of the Parties' briefing, the evidence, and the applicable law, the Court hereby GRANTS Plaintiffs' Motion for Judgment; DENIES Defendants' Renewed Motion for Judgment; DENIES as MOOT Defendant's Request for Oral Argument, DENIES in PART Defendants' Motion for a New Trial; and DENIES as MOOT Plaintiffs' Post-Trial Petition for Attorneys' Fees, Expenses, and Costs. The Court will resolve Defendants' Motion for Entry of a Take-Nothing Judgment on Claims that Were the Subject of Summary Judgment in a subsequent order.

BACKGROUND

 This case arose out of Dr. Lawrence R. Poliner's ("Dr.Poliner") and Lawrence R. Poliner, M.D., P.A.'s (the "Professional Association") (collectively, "Plaintiffs") claims that Defendants Dr. James Knochel, Dr. Charles Levin, Dr. John Harper and Presbyterian Hospital of Dallas (the "Hospital") (collectively, "Defendants") improperly and maliciously used the peer-review process to summarily suspend Dr. Poliner's privileges, thereby causing damage to his interventional cardiology practice. An overview of the relevant facts of this case has been set forth in the Court's summary judgment order of September 30, 2003 and can be found at Poliner v. Tex. Health Sys. et al., Civ. Action No. 3:00-CV-1007-P, 2003 WL 22255677 (N.D.Tex. Sept.30, 2003).

 Plaintiffs filed this lawsuit in May 2000 against the Hospital, Drs. Knochel, Levin, and Harper, and other cardiologists on various Hospital peer-review committees for damages arising out of an alleged unlawful peer review process. Plaintiffs included claims for antitrust violations under federal and state law, breach of contract, defamation, business disparagement, tortious interference with a contract, violation of the DTPA, and intentional infliction of emotional distress. Plaintiffs also moved for a declaratory judgment that Defendants' actions were not entitled to peer-review immunity under the federal Health Care Quality Improvement Act or the Texas Occupations Code.

 In September 2003, the Court granted in part and denied in part Defendants' motion for summary judgment on all of Plaintiffs' claims. The Court granted summary judgment for all defendants on Plaintiffs' DTPA and antitrust claims. The Court granted summary judgment for the other cardiologists on the various peer-review committees on all claims, finding them entitled to peer review immunity under the state and federal statutes. The Court also determined that fact issues existed as to whether Defendants acted with actual malice with respect to the May 14, 1998 peer-review action, and permitted the remaining claims against them to be tried to a jury. (See Court's Order of Sept. 30, 2003; Poliner, 2003 WL 22255677.) In a subsequent order, the Court articulated that Plaintiffs were precluded from seeking damages resulting from the June 12, 1998 suspension imposed on Dr. Poliner. (See Court's Order of July 7, 2004; Poliner, Civ. Action No. 3:00-CV-1007-P, 2004 WL 1542164, at *3 (N.D.Tex. July 7, 2004).)

 *2 Trial of this case commenced on August 12, 2004 against Defendants and an eight-person jury returned a unanimous verdict against all Defendants on August 27, 2004. The jury first found that Defendants' actions were not immune from civil liability under the federal or state peer review statutes. The jury also found in favor of Plaintiffs on all of their claims, including breach of contract, defamation, business disparagement, tortious interference with a contract, and intentional infliction of emotional distress. The jury further found that Defendants had acted maliciously and without justification or privilege. The jury awarded compensatory and exemplary damages against Defendants in the total amount of $366,211,159.30. Dr. Poliner has since settled with Drs. Levin and Harper, both of whom have been dismissed from this lawsuit.

 After receiving the jury's verdict, the Court established a post-trial briefing schedule and ordered the Parties to participate in mediation. The Parties mediated on June 1, 2005 before the Honorable David Keltner, but were unable to reach a settlement. Judge Keltner declared an impasse on August 17, 2005 and officially closed the mediation.

 Plaintiffs now move for entry of judgment on the jury's verdict. Plaintiffs elect to recover the actual damages for injury to career/reputation and mental anguish that the jury found were proximately caused by Defendants' defamatory statements, as set forth in Jury Question No. 11. They also seek to recover for loss of earnings against the Hospital for breach of contract, plus reasonable and necessary attorneys' fees. Additionally, Plaintiffs seek to recover the full amount of exemplary damages awarded by they jury against Dr. Knochel and the Hospital in Jury Question No. 21. Finally, Dr. Poliner seeks recovery of prejudgment and postjudgment interest, as well as costs.

 Meanwhile, Defendants have renewed their motion for judgment as a matter of law, asking the Court to enter judgment in Defendants' favor on all Plaintiffs' claims.

DISCUSSION

 I. WAIVER.

 Before reaching the merits of this case, the Court must address a procedural issue. Plaintiffs contend that many of Defendants' grounds for judgment in their favor, as presented in Defendants' renewed motion for judgment, are waived because they were not raised in Defendants' original motion for judgment as a matter of law. (Pls.' Resp. at 2-5.)

 A renewed motion for judgment as a matter of law under Rule 50(b), [FN1] like the motion for judgment as a matter of law under Rule 50(a), [FN2] must state the grounds on which it is made. Since the Rule 50(b) motion, which is made after submission of the case to the jury, is nothing more than a renewal of the earlier motion made at the close of the presentation of the evidence, it cannot assert a ground that was not included in the earlier motion. See Morante v. Am. Gen. Fin. Ctr., 157 F.3d 1006, 1010 (5th Cir.1998); Allied Bank-West, N.A. v. Stein, 996 F.2d 111, 115 (5th Cir.1993); C. Wright and A. Miller, 9A Federal Practice and Procedure §  2537 (2d ed.1994). The purpose of the rule is to ensure that the court and the plaintiff are alerted to the grounds on which the defendant contends the evidence is insufficient prior to the submission of the case to the jury. See Greenwood v. Societe Francaise De, 111 F.3d 1239, 1245 (5th Cir.1997). In other words, the rule is intended to prevent a party from raising a new argument after the jury has reached a verdict. See Charbonnet v. Lee, 951 F.2d 638, 642 n. 20 (5th Cir.1992).

FN1. Formerly known as a motion for judgment notwithstanding with verdict. See Armstrong v. City of Dallas, 997 F.2d 62, 66 n. 9 (5th Cir.1993).

FN2. Formerly known as a motion for directed verdict. See Armstrong, 997 F.2d at 66 n. 9.

 *3 While a renewed motion for judgment as a matter of law may not enlarge or assert new matters not presented in the motion for judgment, "technical precision is not necessary in stating the grounds for the motion [for judgment as a matter of law] so long as the trial court is aware of the movant's position." See Dimmitt Agri Indus., Inc. v. CPC Intern. Inc., 679 F.2d 516, 521 (5th Cir.1982). This circuit has excused a defendant's technical noncompliance caused by a failure to move for judgment under Rule 50(a) where the purpose of the rule has been satisfied. See Villanueva v. McInnis, 723 F.2d 414, 416-17 (5th Cir.1984). For instance, courts will allow an objection or combination of objections to the charge to serve as the functional equivalent of a formal Rule 50(a) motion as long as the court and the plaintiff had notice of the grounds on which the defendant contended the evidence was insufficient before the case was submitted to the jury. See Greenwood, 111 F.3d at 1245 n. 4.

 Plaintiffs identify twenty-six specific arguments made by Defendants in their renewed motion that Plaintiffs contend were not raised in the original motion for judgment as a matter of law and are therefore waived. (Pls.' Resp. at 3-5.) In response, Defendants make a general argument that the issues raised in their renewed motion are sufficiently similar to those raised in the motion for directed verdict, and therefore have not been waived.

 Defendants do respond specifically to two of Plaintiffs' waiver arguments. First, they contend that their defenses of consent (i.e. agreement) and estoppel relating to Dr. Poliner's signing of the abeyance were not waived because they were extensively discussed at the charge conference, which serves as the functional equivalent of a formal motion addressing these issues. (Defs.' Reply at 3.) Defendants refer to an exchange at the charge conference during which counsel and the Court discussed in detail the effect of a jury finding that Dr. Poliner agreed to the abeyance. (See Defs.' Reply App. at 413- 23.) In that exchange, the Court and counsel discussed whether Dr. Poliner's claims against Defendants should be barred if Dr. Poliner was found to have voluntarily agreed to the abeyance. (Id.) The Court and counsel agreed that the effect of such a finding would be dealt with post-verdict. (Id. at 418- 20.) Because the Court and counsel were adequately informed of these issues, the Court concludes that it is not precluded from reexamining the defenses of consent and estoppel with respect to the abeyance, and a judgment in Defendants' favor may be entered thereon.

 Second, Defendants contend that their argument that Plaintiffs failed to segregate the damages caused exclusively by the abeyance was not waived because Defendants and the Court have repeatedly emphasized that Plaintiffs must present sufficient evidence of damages incurred during the abeyance period. Defendants note that the need for Plaintiffs to segregate their damages was raised in the Court's July 7, 2004 Order, at the pretrial conference, during the charge conference, and again during trial. Because the Court and counsel were adequately informed of this issue, the Court concludes that it is not precluded from reexamining the issue of whether there was sufficient evidence that damages arose solely from the abeyance, and judgment in Defendants' favor may be entered thereon.

 *4 With respect to the remaining twenty-four issues raised by Plaintiffs, Defendants are required to either identify those portions of their Rule 50(a) motion that encompass the issues raised in their renewed motion or identify the objections made that serve as the functional equivalent of a formal motion. Defendants' general and conclusory statement that their Rule 50(b) arguments are "nuances, shades, or phases" of arguments raised in their motion for directed verdict does not satisfy this requirement. (Defs.' Reply at 3.) Therefore, the remaining issues are hereby WAIVED and will not be considered by the Court for judgment as a matter of law.

 II. IMMUNITY.

 The jury found in Jury Questions Nos. 3 and 4 that Defendants were not entitled to the immunity afforded to peer review participants under the federal and state peer review statutes. Defendants challenge those findings on several bases.

 A. Federal Peer Review Immunity.

 1. Abeyance is Immune as a Professional Review Activity.

 Defendants argue that the abeyance and the subsequent extension are not professional review actions, but instead are professional review activities that are not subject to the strictures of 42 U.S.C. §  11112(a). (Defs.' Mot. at 10.) Because this argument was not raised in the previous motion for judgment as a matter of law, this issue has been waived.

 2. No Evidence That Abeyance Did Not Meet HCQIA Requirements.

 Defendants also contend there was no evidence to support the jury's findings that Defendants were not entitled to HCQIA immunity. (Defs.' Mot. at 16.)  [FN3] First, Defendants challenge the jury's finding that Defendants' suspension of Dr. Poliner's cardiac catheritization lab privileges was not undertaken in the reasonable belief that the action furthered quality health care (Defs.' Mot. at 13; Jury Question No. 3(1).) Defendants also argue there was no evidence to support the jury's finding that the suspension was not undertaken after a reasonable effort to obtain the facts of the matter. (Defs.' Mot. at 14; Jury Question No. 3(2).) Defendants further contend there was no evidence to support the jury's finding that the suspension was not undertaken after adequate notice and hearing procedures were afforded Dr. Poliner. (Defs.' Mot. at 15; Jury Question No. 3(3).) Finally, Defendants argue there was no evidence to support the jury's finding that the suspension was not undertaken in the reasonable belief that the suspension was warranted by the facts known. (Defs.' Mot. at 15-16; Jury Question No. 3(4).)

FN3. Defendants have employed an exhausting and questionable post-trial briefing strategy whereby they make no-evidence arguments for virtually every element of every claim presented to the jury. Rather than spend their resources briefing what few credible arguments they may have had, Defendants chose to bombard the Court with dozens of untenable ones. This has caused the Court to expend valuable resources researching, analyzing, and rejecting those non-viable positions.

 At trial, the jury heard Dr. Knochel testify that he did not have enough information to assess whether Dr. Poliner posed a present danger to his patients at the time he asked Dr. Poliner to agree to the abeyance. (Pls.' App. at 74, 78.) He threatened Dr. Poliner with suspension of his privileges if Dr. Poliner refused to sign the abeyance letter, even though "[w]e didn't determine that [Dr. Poliner was a present threat to his patients at that particular point. That is why we asked for an abeyance to investigate it to see if he was in fact dangerous to his patients." (Pls.' App. at 74.) Dr. Knochel was prepared to suspend Dr. Poliner's privileges despite the fact that he did not know whether Dr. Poliner posed a present danger to his patients. Clearly, this evidence supports the jury's finding that the suspension was not undertaken in the reasonable belief that Dr. Poliner posed a present danger to the health of his patients. Additionally, Dr. Poliner's medical experts testified that no reasonable hospital could have taken the action it did against Dr. Poliner except by knowingly or recklessly disregarding the medical evidence. (Pls.' App. at 99, 106, 137, 203, 208A.) The jury also heard Dr. Knochel testify that he informed Dr. Poliner that Dr. Poliner must agree to an abeyance of his cath lab privileges or Dr. Knochel would terminate all his hospital privileges immediately. (Pls.' App. at 74-77, 179.) Dr. Knochel did not offer Dr. Poliner any other options that may have been less severe. (Pls.' App. at 77.) There was also evidence that Dr. Knochel told Dr. Poliner that he was not permitted to consult an attorney. (Pls.' App. at 180.) Furthermore, there was evidence at trial that Defendants would not discuss the patient cases with Dr. Poliner prior to his summary suspension and did not provide Dr. Poliner with any opportunity to be heard or any hearing of any kind prior to his summary suspension. (Pls.' App. at 95, 107, 125, 210.)

 *5 Defendants' unwillingness to hear from Dr. Poliner with respect to his patients and his medical treatment of them could have reasonably led a jury to conclude that Defendants did not have a reasonable belief that the action furthered quality health care and that the suspension was not undertaken after a reasonable effort to obtain the facts of the matter. Likewise, Defendants' unwillingness to afford Dr. Poliner an opportunity to be heard or to consult with an attorney supports the jury's finding that the suspension was not undertaken after adequate notice and hearing procedures were afforded Dr. Poliner. Finally, Dr. Knochel's own testimony that he did not have enough information to determine whether Dr. Poliner posed an imminent danger at the time of the abeyance/summary suspension supports the jury's finding that the suspension was not undertaken in the reasonable belief that the suspension was warranted by the facts known. This evidence is sufficient to support the jury's findings in Jury Question No. 3 regarding the elements of HCQIA immunity.  [FN4]

FN4. 42 U.S.C. §  11112(c)(1)(B) states that notice and hearing are not required "in the case of a suspension or restriction of clinical privileges, for a period of not longer than 14 days, during which an investigation is being conducted to determine the need for a professional review action ..." Defendants argue that this section obviated their need to provide Dr. Poliner with notice and a hearing before asking for the abeyance because the restriction of his privileges was not for a period longer than 14 days. (Defs.' Mot. at 15.) Even if this requirement is eliminated as one of the elements necessary for granting immunity, the jury found that of the remaining three elements, none were met, and therefore immunity could not be afforded.

 B. State Peer Review Immunity.

 State law provides greater immunity than HCQIA by immunizing any participant in health care peer review who acts without malice and in the reasonable belief that the action or recommendation is warranted by the facts shown. See Tex. Occ.Code Ann. §  160.010(a)(2). Defendants argue they are entitled to state peer review immunity as a matter of law because there was no evidence of malice. (Defs.' Mot. at 18-21.) However, the evidence supporting the jury's finding of malice under the Texas peer review statute is the same evidence used to defeat contractual and HCQIA immunities.

 At trial, the jury heard Dr. Knochel testify that he did not have enough information to assess whether Dr. Poliner posed a present danger to his patients at the time he asked Dr. Poliner to agree to the abeyance. (Pls.' App. at 74, 78.) The Hospital president also testified that he did not know all of the facts surrounding the abeyance/summary suspension at the time. (Pls.' App. at 56.) Dr. Knochel threatened Dr. Poliner with suspension of his privileges if Dr. Poliner refused to sign the abeyance letter, even though "[w]e didn't determine that [Dr. Poliner was a present threat to his patients at that particular point. That is why we asked for an abeyance to investigate it to see if he was in fact dangerous to his patients." (Pls.' App. at 74.) Dr. Knochel was prepared to suspend Dr. Poliner's privileges despite the fact that he did not know whether Dr. Poliner posed a present danger to his patients. Clearly, this evidence supports the jury's finding that the suspension was not undertaken in the reasonable belief that Dr. Poliner posed a present danger to the health of his patients. The jury also heard Dr. Knochel testify that he informed Dr. Poliner that Dr. Poliner must agree to an abeyance of his cath lab privileges or Dr. Knochel would terminate all his hospital privileges immediately. (Pls.' App. at 74-77, 179.) Dr. Knochel did not offer Dr. Poliner any other options that may have been less severe. (Pls.' App. at 77.) There was also evidence that Dr. Knochel told Dr. Poliner that he was not permitted to consult an attorney. (Pls.' App. at 180.) Additionally, Dr. Poliner's medical experts testified that no reasonable hospital could have taken the action it did against Dr. Poliner except by knowingly or recklessly disregarding the medical evidence. (Pls.' App. at 99, 106, 137, 203, 208A.) Furthermore, there was evidence at trial that none of the Defendants would discuss the patient cases with Dr. Poliner prior to his summary suspension and that they did not provide Dr. Poliner with an opportunity to be heard or any hearing of any kind prior to his summary suspension. (Pls.' App. at 95, 107, 125, 210.) This evidence is sufficient to support the jury's finding in Jury Question No. 4 that Defendants invoked the summary suspension with malice and not in the reasonable belief that the action was warranted by the facts known to them.

 III. THE ONE-SATISFACTION RULE.

 *6 Another issue the Court must resolve before addressing the merits of Plaintiffs' claims is which of Plaintiffs' claims entitle Plaintiffs to recover damages. A party is generally entitled to sue and to seek damages on alternative theories. See Waite Hill Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex.1998). A party is not, however, entitled to a double recovery, which exists when a plaintiff obtains more than one recovery for the same injury. See Tompkins v. Cyr, 202 F.3d 770, 785 (5th Cir.2000). Under the one-satisfaction rule, a plaintiff is entitled to only one recovery for any damages suffered. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex.2000); Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex.1991); see also Bradshaw v. Baylor Univ., 126 Tex. 99, 84 S.W.2d 703, 705 (Tex.1935). This rule applies when multiple defendants commit the same act as well as when defendants commit technically different acts that result in a single injury. See Crown Life Ins. Co., 22 S.W.3d at 390. Thus, notwithstanding an alternative theory of liability, a double recovery will result if multiple damage awards are the result of one injury. See Birchfield v. Texarkana Mem'l Hosp., 747 S.W.2d 361, 367 (Tex.1987). When the prevailing party fails to elect between alternative measures of damages, the court should render the judgment affording the greatest recovery. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 441 (Tex.1995).

 Defendants contend that Plaintiffs are entitled to one recovery because they suffered a singular injury and because Defendants did not engage in separate, independent acts giving rise to liability. (Defs.' Mot. at 41-42.) Plaintiffs concede they are entitled to one satisfaction with respect to their tort claims, but argue they are entitled to a separate recovery for their breach of contract claim because it involves a separate wrong. (Pls.' Resp. at 44.) Plaintiffs explain that their breach of contract claim is premised on the Hospital's failure to comply with the procedural safeguards provided to Dr. Poliner under the Hospital/Medical Staff Bylaws, whereas the tort claims are premised on Defendants' false representation and publication that Dr. Poliner was a dangerous doctor.

 In this case, Dr. Poliner asserted a breach of contract claim against the Hospital for failing to comply with the safeguards provided in the Medical Staff and Hospital Bylaws in connection with the summary suspension of May 14, 1998. The Hospital Bylaws specifically incorporate the Medical Staff Bylaws' provisions for withdrawing staff privileges with due process. (Pls.' App. at 396.) The Medical Staff Bylaws effectively limit the powers of the Hospital by restricting the Hospital's ability to invoke a summary suspension to those cases involving present danger. (Defs.' App. at 352.) Because the Medical Staff Bylaws limit the powers of the Hospital, the provision may be enforced against the Hospital. See Stephan v. Baylor Med. Ctr., 20 S.W.3d 880, 888 (Tex.App.--Dallas 2000, no pet.).

 *7 The evidence established that Defendants breached the Medical Staff Bylaws by not having a reasonable belief that Dr. Poliner posed a present danger to the health of his patients and by failing to get Dr. Poliner's voluntary consent to the abeyance. Defendants were also found liable for breaching the Hospital Bylaws by failing to provide Dr. Poliner with adequate notice and hearing procedures.

 The jury also separately considered and found Defendants liable for defamation arising from the statement implicit in the suspension that Dr. Poliner posed a present danger to this health of his patients and for tortiously interfering with Plaintiffs' patient contracts.

 However, the evidence at trial reflected a single injury for Plaintiffs' loss of earnings and a single injury for mental anguish and injury to career/reputation. There was no evidence that the contract breach caused Dr. Poliner to suffer an injury to reputation/career or mental anguish separate and distinct from those caused by the tortious conduct. Because the breach of contract and the tortious conduct resulted in the same injuries, only one recovery is permissible. Additionally, because the acts of the multiple defendants resulted in the same injuries, only one recovery is allowed against Defendants. Finally, because both Plaintiffs suffered the same injuries together, Plaintiffs are entitled to one recovery for both of their injuries. Although the jury imposed different liability amounts for each of the different defendants and awarded different damage awards for each of the different causes of action, the evidence at trial indicated that Plaintiffs suffered one injury. Consequently, Plaintiffs may recover only once for any proven damages that were suffered as a result of this singular injury.

 IV. DR. POLINER'S BREACH OF CONTRACT CLAIM.

 Dr. Poliner seeks entry of judgment on the jury's breach of contract award against the Hospital. Although the jury found the Hospital liable in the amount of $30,000,000 (Jury Question No. 6.), Dr. Poliner seeks recovery in the amount of $10,526.55, the amount of direct economic damages caused by the breach of contract and allegedly sustained by Dr. Poliner during the abeyance period. (Pls.' Mot. at 26-28.)

 Defendants argue they are entitled to judgment as a matter of law on Dr. Poliner's breach of contract claim because (1) the Medical Staff Bylaws do not create a contract between the Hospital and Dr. Poliner; (2) the Jury Charge failed to submit breach of the Hospital Bylaws; (3) Dr. Poliner failed to establish the essential elements of his breach of contract claim; and (4) Dr. Poliner consented to the abeyance.

 A. Existence of a Contract.

 Defendants argue that the Court erred in finding at the summary judgment stage that a contract existed because the Hospital Bylaws were not limited or curtailed in any way by the Medical Staff Bylaws and because the Hospital Bylaws' reference to due process was indefinite and vague. (Defs.' Mot. at 2, 4 n. 2; Defs.' Reply at 7.)

 *8 The Hospital Bylaws specifically incorporate the Medical Staff Bylaws' provisions for withdrawing staff privileges with due process. (Defs.' App. at 396.) In turn, the Medical Staff Bylaws specifically provide, with respect to summary suspensions specifically, that Hospital representatives may summarily suspend the privileges of a physician only when the acts of the physician constitute a "present danger" to the health of his patients. (Defs.' App. at 352.) Thus, the Medical Staff By laws effectively limit the powers of the Hospital by restricting the Hospital's ability to invoke a summary suspension to those cases involving present danger. Because this Medical Staff Bylaws' provision does attempt to limit the powers of the Hospital, the provision may be enforced against the Hospital. See Stephan v. Baylor Med. Ctr., 20 S.W.3d 880, 888 (Tex.App.-Dallas 2000, no pet.) (citing Weary v. Baylor Univ. Hosp., 360 S.W.2d 895, 897 (Tex.Civ.App.-Waco 1962, writ ref'd n.r.e.) (bylaws that do not attempt to limit the power of a hospital as it acts through its governing board do not create contractual obligations for the hospital).

 The Stephan case relied on by Defendants is distinguishable from this case in several key respects. First, Dr. Stephan was a physician applying for staff privileges at the hospital, whereas Dr. Poliner was a staff physician whose privileges were being taken away. In Stephan, neither common law, statutory law, nor the applicable hospital or medical staff bylaws provided any standard for denying hospital privileges to a physician, whereas in this case, the Medical Staff Bylaws do provide a standard for invoking a summary suspension-- that the physician must constitute a present danger to the health of his patients. See Stephan, 20 S.W.3d at 886. Dr. Poliner, as well as all other physicians with staff privileges, had a reasonable expectation that they would not be summarily suspended unless found to be a present danger. This expectation bolsters the argument for the existence of a contract. Furthermore, unlike this case, the Stephan court found nothing in the medical staff by laws that attempted to limit the hospital's power to act with respect to Dr. Stephan.

 Additionally, the Hospital Bylaws' reference to due process is not so indefinite or vague as to render a contract unenforceable. At a minimum, due process requires notice and an opportunity to be heard--neither of which was provided to Dr. Poliner at the summary suspension stage.

 For these reasons, the Court rejects Defendants' arguments and affirms its earlier ruling that a contract existed between Dr. Poliner and the Hospital.

 B. Lack of Consideration.

 Defendants also argue that the Medical Staff Bylaws are unenforceable because there was no consideration to support the agreement. (Defs.' Mot. at 4.) Because this argument was not raised in Defendants' original motion for judgment as a matter of law, the issue has been waived.

 C. No Evidence of Breach.

 *9 Plaintiffs alleged--and the jury found--that Defendants breached the Medical Staff Bylaws, and hence the Hospital Bylaws, in three ways. First, the Medical Staff Bylaws allow the Hospital to hold a physician's hospital privileges in abeyance only if the physician agrees to the abeyance. (Pls.' App. at 352.) The jury concluded that Defendants breached this provision of the Medical Staff Bylaws because, it found, Dr. Poliner did not voluntarily agree to the abeyance. (Jury Question No. 2.) Defendants challenge this finding and contend that the evidence demonstrated that Dr. Poliner did in fact consent to the abeyance, that his consent to the abeyance was not caused by duress, and that the jury's verdict was without sufficient evidence. (Defs.' Mot. at 5, 7.)

 At trial, Dr. Knochel testified that he informed Dr. Poliner that Dr. Poliner must agree to an abeyance of his cath lab privileges or Dr. Knochel would terminate all of Dr. Poliner's hospital privileges immediately. (Pls.' App. at 74-77, 179.) Dr. Knochel did not offer Dr. Poliner any other options that may have been less severe. (Pls.' App. at 77.) There was evidence at trial that Dr. Knochel told Dr. Poliner that he was not permitted to consult an attorney. (Pls.' App. at 180.) This was sufficient evidence to cause the jury to find that Dr. Poliner was forced to agree to the abeyance under duress. [FN5]

FN5. Defendants argue that even if the abeyance was procured by duress, it should be enforced because Dr. Poliner ratified/did not repudiate the abeyance. (Defs.' Mot. at 8.) Because this ratification/repudiation argument was not raised in Defendants' original motion for judgment as a matter of law, the