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STEPHEN HARRIS v. BRADLEY MEMORIAL
HOSPITAL AND HEALTH
CENTER, INC.
(SC 18068)
Katz, Palmer, Vertefeuille, Zarella and McLachlan, Js.
Argued October 27, 2009—officially released May 18, 2010
Jo Anne Burgh, for the appellant (plaintiff).
Michael G. Rigg, with whom, on the brief, was Roland
F. Young III, for the appellee (defendant).
Opinion
McLACHLAN, J. This appeal arises from the summary
suspension of the medical privileges of the plaintiff,
Stephen Harris, a physician, by the defendant, Bradley
Memorial Hospital and Health Center, Inc. The plaintiff
appeals from the judgment of the trial court in favor
of the defendant, rendered following the court’s
grant
of the defendant’s motion for judgment notwithstanding
the verdict and for remittitur, following a jury verdict
in favor of the plaintiff.1 The plaintiff claims that
the
trial court improperly: (1) concluded that the favorable
termination doctrine applies in the context of an action
brought by a physician seeking damages in connection
with a hospital’s suspension or termination of
that physician’s
privileges; (2) reached the merits of the defendant’s
motion for remittitur despite the fact that it had
rendered judgment in favor of the defendant on the
basis of the favorable termination doctrine; (3) granted
the defendant’s motion for remittitur; (4) declined
to
award the plaintiff punitive damages; and (5) granted
the defendant’s motion for a directed verdict as
to the
plaintiff’s claim pursuant to the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq., concluding that the defendant’s summary
suspension of the plaintiff’s privileges was not
a commercial
decision covered by CUTPA. The defendant
claims that the judgment of the trial court may be
affirmed on the basis of one or all of the following
alternate grounds: (1) the trial court properly concluded
that the defendant substantially had complied with its
bylaws when it suspended the plaintiff’s surgical
privileges;
(2) the plaintiff failed to rebut the statutory presumption
that the defendant was immune from
monetary liability under the federal Health Care Quality
Improvement Act of 1986, 42 U.S.C. § 11101 et seq.; and
(3) the plaintiff was collaterally estopped from bringing
this action by virtue of a consent order into which
he and the department of public health had entered.
Because we agree with the plaintiff that the court
improperly applied the favorable termination doctrine,
and disagree with the defendant that the judgment of
the trial court may be affirmed on the basis of the
alternate grounds raised, we reverse the judgment of
the trial court granting judgment notwithstanding the
verdict. Additionally, we reverse the court’s grant
of
judgment notwithstanding the verdict with respect to
the jury’s award of punitive damages to the plaintiff.
We affirm the judgment of the trial court, however,
granting the defendant’s motion for directed verdict
as
to the plaintiff’s CUTPA claim and granting the
defendant’s
motion for remittitur.
The jury could have found the following relevant
facts. The plaintiff, a general surgeon, was admitted
to
the defendant’s medical staff and granted privileges
in
1993. His privileges most recently had been renewed
in 1999. Beginning in 1997, the plaintiff also held privileges
at New Britain General Hospital. The plaintiff’s
practice was busy, averaging about twenty-five to forty
cases a month and requiring him to be in the operating
room three to four times a week. In addition to serving
as the primary surgeon for his own cases, he assisted
other general surgeons in the operating room, primarily
Ambrose Alfonsi, the chairman of the defendant’s
surgery
department, and Joshua Morowitz, the vice-chairman
of the defendant’s surgery department. The
defendant’s medical staff reappointment summary
of
1999 reported that in the two years preceding the plaintiff’s
reappointment, he had 495 hospital admissions,
551 surgical procedures, 136 consultations, two suspensions
for medical records violations, a mortality rate of
two out of 495, an average length of stay of 6.6 days
and a complication rate of zero.
In December, 1999, a patient on whom the plaintiff
had performed a laparoscopic cholecystectomy
returned twenty-four hours following the procedure
with right upper quadrant pain and elevated liver
enzymes. The patient was transferred to Hartford Hospital
and treated for an injury she had sustained to her
common duct during the laparoscopic procedure. The
case was reviewed the following month during a morbidity
and mortality meeting.2 Subsequent to that
review, Alfonsi proposed a six month period of observation,
during which Alfonsi would assist and observe the
plaintiff in his laparoscopic surgery cases.3 The plaintiff
agreed and in June, 2000, at the end of the proposed
supervision period, Alfonsi expressed satisfaction with
the plaintiff’s performance and removed the restriction
on his practice.
In September, 2000, Alfonsi retired as chairman of
the department of surgery and Morowitz became chairman
in his place. Sometime in early to mid-November,
2000, Clarence Silvia, the defendant’s president
and
chief executive officer, called the plaintiff to a meeting
with Silvia, Morowitz and Letterio Asciuto, the president
of the medical staff. During the meeting, they
informed the plaintiff that because they had concerns
about his clinical capabilities, they were going to contact
an outside reviewer to analyze his cases.
Although the plaintiff was unaware of it at the time
of the November meeting, the proposed external review
had, in fact, already been conducted by Randolph Reinhold,
a general surgeon and the chairman of the department
of surgery at the Hospital of Saint Raphael in
New Haven. Silvia and Morowitz had decided to seek
external review of the plaintiff’s cases in October
in
response to concerns expressed by nurses who worked
in case management quality assurance. Silvia had
instructed Elaine Greene, the defendant’s director
of
nursing and chief operating officer, to select a representative
sample of the plaintiff’s cases to be sent to Reinhold.
Greene sent twenty patient charts to Reinhold,
selecting only those that had been presented for peer
review at morbidity and mortality meetings. When Reinhold
completed his review of the charts, he found that:
(1) twelve out of the twenty cases demonstrated evidence
of error in surgical technique or management;
(2) of those twelve errors, nine led to significant adverse
outcomes including death; and (3) only six out of the
twenty cases were free of complications. Reinhold concluded,
on the basis of those findings, that if the sample
was representative of the plaintiff’s practice,
the pattern
of errors and complications was widely deviant from
accepted standards of surgical care. There was no evidence
that Reinhold had been informed that the sample
was not random.
In December, 2000, the plaintiff was informed that
the report had been returned and, because the report
was unfavorable, the defendant’s medical executive
committee had decided to form a peer review panel for
the purpose of conducting further review of his cases.
He was not informed, however, who would be on the
peer review panel, when the panel would be formed
and begin work, or what, precisely, the panel would
review. Nor was he informed that the medical executive
committee’s decision was based on the recommendation
of Morowitz, who had requested and been given
the authority to convene the peer review panel.
In addition to the twenty charts reviewed by Reinhold,
Morowitz, who admitted that he was the plaintiff’s
direct economic competitor, selected thirteen additional
charts for review by the peer review panel4 by
reviewing more than 200 of the plaintiff’s cases
from
the years 1998 through 2000, and weeding out any charts
that did not present a question of the plaintiff’s
clinical
competence. He acknowledged that he intentionally did
not select a random sample and that he had never
applied this methodology of selection in any prior
review of a physician’s patient care. He also stated,
however, that he explained to the peer review panel
members the methodology he had employed in selecting
the thirteen charts.
Morowitz also supplied the peer review panel members
with a statistical summary he had prepared on the
basis of his review of the plaintiff’s cases, but
he did not
give the panel members the medical staff reappointment
summary of 1999 that had summarized the plaintiff’s
cases for the two years prior to the plaintiff’s
renewal
of privileges, nor did he review that information in
compiling
his statistical summary of the plaintiff’s practice.
Morowitz did not check to see if any of the cases that
he selected had been screened at the morbidity and
mortality meetings, and he did not make any information
from those meetings available to the peer review
panel members. His statistical summary reported that
during the three year period covered by the review,
the plaintiff performed a total of 313 procedures, and
calculated a rate of error of 13 percent for major procedures
and 3 percent for minor procedures, with a combined
rate of error of 8 percent.
The plaintiff’s first notice that the peer review
panel
had been formed was on January 29, 2001, when he
was summoned before it. The peer review panel, comprised
of John Russell, a general surgeon who served at
the time as chairman of surgery at New Britain General
Hospital, Daniel Scoppetta, a general surgeon and chief
of staff at Bristol Hospital, and Jack Huse, a general
surgeon and former chairman of the department of surgery
at the Midstate Medical Center, had held its first
meeting on January 15, 2001, at which time they began
their review of the thirty-three charts that Morowitz
had provided to them. The peer review panel’s second
meeting, on January 29, 2001, was already underway
when the members summoned the plaintiff so that he
could respond to their questions about the cases. When
he arrived at the meeting, Silvia and Morowitz were
present, along with the three peer review panel members.
During the meeting, when the peer review panel
members had questions about a patient chart, Morowitz
placed that chart in front of the plaintiff and the panel
members questioned the plaintiff about the case. The
plaintiff had been given no prior notice of the meeting,
no opportunity to review the charts beforehand to
refresh his memory of the cases, and although there
was information in his office records that would have
been relevant during the peer review process, the plaintiff
was given no opportunity to consult those records
prior to or during the course of the meeting. The plaintiff
conceded that he did not request to be excused so that
he could have time to prepare for questioning.
Following the January 29, 2001 meeting, the peer
review panel prepared a report summarizing their findings.
On the basis of their review, and in light of the
statistical summary provided by Morowitz, which was
appended to the report, the peer review panel concluded
that the overall surgical care provided by the
plaintiff during the period of time reviewed did not
meet the standard of care expected of a board certified
general surgeon. That report was submitted to Silvia
on February 7, 2001. The reports of both the peer review
panel and Reinhold were presented at the February
13, 2001 meeting of the medical executive committee,
which summarily suspended the plaintiff’s privileges
effective that day and limited his privileges to first
assist
only in the operating room.
After the plaintiff sought review of the medical executive
committee’s action pursuant to the defendant’s
medical staff bylaws,5 a hearing panel was convened
to hear the plaintiff’s appeal. Following six days
of
hearings, during which the hearing panel heard testimony
from the plaintiff and witnesses for the defendant,
the hearing panel found that the plaintiff had not met
his burden of proving that the medical executive committee’s
decision suspending his privileges was unreasonable,
not sustained by the evidence or otherwise
unfounded. On the basis of its findings, the hearing
panel also recommended that the summary suspension
be continued. The defendant’s board of directors
(hospital
board) rejected the plaintiff’s appeal from the
decision
of the hearing panel on September 30, 2002.
The plaintiff subsequently brought the present action,
alleging breach of contract, breach of the covenant of
good faith and fair dealing, tortious interference with
business expectancies and a violation of CUTPA, seeking
both damages and injunctive relief. Some time after
the plaintiff instituted this action, the department
of
public health (department), through an independent
consultant, reviewed twelve of the plaintiff’s
surgical
patient charts. The consultant concluded that the plaintiff’s
care for the reviewed patients failed to meet the
applicable standard of care. Rather than contest the
findings, the plaintiff agreed to enter into a consent
order with the department, pursuant to which the plaintiff
agreed to a restriction in his medical license barring
him from performing any surgical procedure in any
setting. The order further provided that the restriction
would remain in effect until and unless the department
and the state medical examining board were to approve
an application by the plaintiff to resume his surgical
practice. The order expressly stated that the plaintiff
did
not concede the truth of the findings of the department’s
independent consultant, and referred to the present
action challenging the defendant’s termination
of the
plaintiff’s privileges. For purposes of any proceedings
before the state medical examining board, however, the
consent order was to have preclusive effect as though
all of the allegations therein had been proven.6
The defendant filed two motions for summary judgment
prior to trial.7 In its first motion for summary
judgment, the defendant argued that it was immune
from liability pursuant to the Health Care Quality
Improvement Act of 1986 (act), 42 U.S.C. § 11101 et seq.8
Because the court, Burke, J., found that the plaintiff
had presented no evidence challenging the defendant’s
compliance with the statutory criteria of the act in
connection
with proceedings subsequent to the February
13, 2001 summary suspension of the plaintiff’s
privileges,
the court granted the defendant’s motion for summary
judgment as to the plaintiff’s claims for damages
arising from proceedings after that date.9 The court
denied the motion with respect to the plaintiff’s
claim
for damages sought in connection with events leading
up to and including the summary suspension. The court
also denied the defendant’s motion with respect
to the
plaintiff’s claim for injunctive relief because
the act
provides immunity only with respect to damages. See
footnote 8 of this opinion.
In its second motion for summary judgment, the
defendant argued that it was immune from liability for
damages with respect to proceedings prior to and
including the February 13, 2001 summary suspension
of the plaintiff’s clinical privileges on the basis
of the
emergency provision of the act as set forth in 42 U.S.C.
§ 11112 (c).10 The defendant also argued that the consent
order entered into by the department and the plaintiff
collaterally estopped the plaintiff from litigating the
issue of whether his surgical care fell below the applicable
standard of care, and therefore justified a grant of
summary judgment both as to the plaintiff’s claims
for
damages and injunctive relief. The court, Shaban, J.,
denied the motion.
The plaintiff’s remaining claims for damages went
to
trial, with the claim for injunctive relief to be tried
concurrently and decided by the court following the
jury’s verdict. After the plaintiff had presented
his case,
the court granted the defendant’s motion for a
directed
verdict as to count four of the complaint, which alleged
a CUTPA violation. The court reserved decision on the
remainder of the motion. The jury returned a verdict
in favor of the plaintiff, awarding $250,000 in economic
and noneconomic damages, plus punitive damages to
be determined by the trial court. Following the return
of the jury’s verdict, the court denied the plaintiff’s
request for a permanent injunction requiring the defendant
to cease and desist both the termination of the
plaintiff’s medical privileges and any interference
with
the plaintiff’s patient relationships. The court
recognized
that the plaintiff sought injunctive relief on the
same bases on which the jury had arrived at its verdict
in favor of the plaintiff, namely the counts alleging
breach of contract and breach of the implied covenant
of good faith. For purposes of the claim for injunctive
relief, however, the court noted that it, not the jury,
was the finder of fact. See Practice Book § 16-11 (‘‘[a]
case presenting issues both in equity and law may be
claimed for the jury list, but, unless the judicial authority
otherwise orders, only the issues at law shall be
assigned for trial by the jury’’).
The court began by articulating the applicable standard
for review of a hospital’s decision to discipline
a
physician. This court had explained in Owens v. New
Britain General Hospital, 229 Conn. 592, 606–607, 643
A.2d 233 (1994), that judicial review of a hospital’s
exercise
of its discretion concerning whether and to what
extent a physician is entitled to staff privileges is
limited
to a determination of whether ‘‘the hospital
substantially
complied with its applicable bylaw procedures.’’
Applying that standard, the trial court stated that none
of the defendant’s bylaws required any particular
procedure
in connection with the summary suspension of a
physician’s privileges. The only applicable bylaw
is article
V, § 1, A, which provides in relevant part that ‘‘[t]he
[e]xecutive [c]ommittee of either the [m]edical [s]taff
or
the [g]overning [b]ody shall have the right to summarily
suspend the admitting and/or clinical privileges of a
practitioner, upon a determination that action must be
taken immediately in the best interest of patient care
in the hospital or when there is a potential immediate
risk to the well being of patients, employees or visitors.
. . .’’ The court then detailed the process
that the defendant
provided to the plaintiff in connection with his
summary suspension—namely, that it informed the
plaintiff of the external review by Reinhold, that Reinhold’s
report was unfavorable, and that it provided to
the plaintiff a copy of that report and a second peer
review, with the opportunity for the plaintiff to respond
to questions by the peer review panel members during
their second meeting. Because none of these procedures
specifically were required by the bylaws, the
court concluded that the plaintiff had been provided
with more process than was required by the bylaws
and had failed to satisfy his burden of showing that
the
summary suspension was not in substantial compliance
with the bylaws.
As to the postverdict motions of the parties, the court
granted the defendant’s motion for judgment notwithstanding
the verdict on the ground that the plaintiff’s
claim was barred by the favorable termination doctrine.
With respect to the plaintiff’s motion for punitive
damages,
which the jury had awarded in connection with
count three of the complaint, alleging tortious interference
with business expectancies, the court concluded
that although there was sufficient evidence of tortious
interference with business expectancies, there was
insufficient evidence that the defendant had acted with
an intent to injure or with reckless disregard of the
plaintiff’s rights. On that basis, and because
it had found
that the plaintiff failed to show that the underlying
action had terminated in his favor, the court denied
the
plaintiff’s motion for punitive damages. Although
the
court recognized that it was ‘‘technically
unnecessary’’
for it to reach the merits of the defendant’s motion
for
remittitur, it did so because it presented a discretionary
matter for the trial court, rather than a pure question
of law. The court granted the motion and reduced the
award of noneconomic damages from $200,000 to
$100,000.11
This appeal followed.
I
We first address the plaintiff’s claim that the
trial
court improperly concluded that the favorable termination
doctrine applies to a physician’s action seeking
damages in connection with a hospital’s decision
suspending
or terminating that physician’s privileges. The
plaintiff argues that the favorable termination doctrine
is inapplicable in this context and that the proper test
is the test articulated in Owens. We agree.
To establish a cause of action for either vexatious
litigation or malicious prosecution, a plaintiff must
‘‘prove want of probable cause, malice and
a termination
of suit in the plaintiff’s favor.’’
Vandersluis v. Weil,
176 Conn. 353, 356, 407 A.2d 982 (1978). ‘‘[W]e
have
always viewed the issue of whether the prior outcome
was ‘favorable’ to the plaintiff as relevant
to the issue
of probable cause.’’ DeLaurentis v. New Haven,
220
Conn. 225, 251, 597 A.2d 807 (1991). We have stated that
the doctrine applies even when the prior proceeding on
which the subsequent claim is based is an administrative
proceeding. Id., 248–49. We have articulated two
public policy concerns underlying the application of
the favorable termination doctrine. ‘‘The
first is the
danger of inconsistent judgments if defendants use a
vexatious suit or malicious prosecution action as a
means of making a collateral attack on the judgment
against them or as a counterattack to an ongoing proceeding.
. . . The second is the unspoken distaste for
rewarding a convicted felon or otherwise ‘guilty’
party
with damages in the event that the party who instituted
the proceeding did not at that time have probable cause
to do so. . . . Thus, an underlying conviction is recognized
in this state as conclusive proof that there was
probable cause for the charges unless it is proven that
the conviction was obtained through fraud, duress or
other unlawful means.’’ (Citations omitted.)
Id., 251–52.
The trial court concluded that the policy reasons
underlying the favorable termination doctrine supported
its extension to this particular context, that is, an
action seeking damages in connection with a hospital’s
adverse privileging decision. The court reasoned that
the jury’s verdict finding that the plaintiff had
proven
that, in summarily suspending the plaintiff’s privileges,
the defendant had breached its contract with the plaintiff,
breached the covenant of good faith and fair dealing
and tortiously interfered with the plaintiff’s
business
relations was inconsistent with the defendant’s
final
decision, through the hospital board, affirming the hearing
panel’s conclusion that the medical executive committee
had acted reasonably in summarily suspending
the plaintiff’s privileges. The court also reasoned
that
the jury’s verdict provided a windfall to the plaintiff,
allowing him to recover damages for the summary suspension
despite the unchallenged final termination of
the plaintiff’s privileges by the hospital board.
The trial court acknowledged that the extension of
the favorable termination doctrine in this context ‘‘does
not fully square with Connecticut law.’’
In concluding
that the doctrine should nonetheless be extended to
this context, the court relied on Westlake Community
Hospital v. Superior Court of Los Angeles County,
17
Cal. 3d 465, 469, 551 P.2d 410, 131 Cal. Rptr. 90 (1976),
in which the Supreme Court of California held that
before a physician could bring a tort action for damages
in connection with a hospital’s adverse privileging
decision,
the physician ‘‘must first succeed in setting
aside
the quasi-judicial decision in a mandamus action
. . . .’’ This rule, the court reasoned,
was consistent
with California’s established, statutory procedure
directing that judicial review of administrative decisions
be sought by filing a writ of mandamus. Id., 484;
see also Cal. Civ. Proc. Code § 1094.5 (Deering 2010).
The court also reasoned that the rule guaranteed a
‘‘uniform practice of judicial, rather than
jury, review
of quasi-judicial administrative decisions.’’
Westlake
Community Hospital v. Superior Court of Los Angeles
County,
supra, 484. Finally, the court observed that the
rule would protect those who are charged with engaging
in peer review. Id.
In considering whether to adopt a new rule, we weigh
the various public policy reasons for and against the
proposed new rule. See, e.g., State v. Wright, 273
Conn.
418, 426, 870 A.2d 1039 (2005) (rejecting defendant’s
invitation to adopt new rule allowing defendants to
collaterally attack validity of criminal protective order
because collateral bar rule ‘‘advances important
societal
interests in an orderly system of government,
respect for the judicial process and the rule of law,
and
the preservation of civil order’’); State v. Brocuglio, 264
Conn. 778, 788–89, 826 A.2d 145 (2003) (adopting
new
crime exception to exclusionary rule because public
policies advanced by exclusionary rule not advanced
by applying doctrine to new crimes, and extension of
rule to new crimes would risk encouraging violent
response to unlawful police conduct); Grayson v. Wofsey,
Rosen, Kweskin & Kuriansky, 231 Conn. 168, 174–
75, 646 A.2d 195 (1994) (declining to adopt rule excusing
attorneys from liability for negligently advising client
to enter into settlement agreement; public policy of
encouraging pretrial settlement of claims outweighed
by more important public policy interest of requiring
diligent exercise of skill and learning by attorneys
in
advising clients). Accordingly, it is helpful first to
review
our existing rule, and the public policy interests served
by it. In Gianetti v. Norwalk Hospital,
211 Conn. 51,
557 A.2d 1249 (1989), this court concluded that ‘‘administrative
decisions by [a] hospital affecting [a] plaintiff’s
rights as a medical staff member under the bylaws [are]
. . . subject to judicial review.’’ Owens v. New
Britain
General Hospital, supra, 229 Conn. 602–603, citing Gianetti
v. Norwalk
Hospital, supra, 59, 62. In Owens, we
explained the public policy concerns underlying the
imposition of a legal obligation on hospitals to adhere
to the bylaws: ‘‘The privilege to admit and
treat patients
at a hospital can be critical to a doctor’s ability
to
practice his [or her] profession and to treat patients.
Both doctors and patients can suffer if otherwise qualified
doctors are wrongly denied staff privileges. . . .
Consequently, hospitals must treat physicians fairly
in
making decisions about their privileges because
patients need physicians and they, in turn, need hospital
privileges to serve their patients. Therefore, in establishing
standards for granting or maintaining staff appointment
or clinical privileges, hospitals must ensure that
these standards are rationally related to the delivery
of
quality health care to patients. . . . The public has
an
interest that staff decisions are not made arbitrarily.
By requiring hospitals to adhere to their bylaws, the
risk
of arbitrary decisions is reduced.’’ (Citations
omitted;
internal quotation marks omitted.) Owens v. New Britain
General Hospital, supra, 605–606.
The same overarching public policy concern that justifies
requiring hospitals to adhere to their bylaws in
making privileging decisions—namely, ensuring ‘‘the
provision of quality medical care to the surrounding
public community’’—also requires that
our review of a
hospital’s privileging decision must be highly
deferential
and narrow in scope. Id., 604. Judicial review of
such decisions is limited to a determination of whether
‘‘the hospital substantially complied with
its applicable
bylaw procedures.’’ Id., 606–607. It
would be contrary
to the public policy of ensuring that hospitals provide
quality healthcare if members of the judiciary were to
‘‘substitute their judgment on the merits
for the professional
judgment of medical and hospital officials with
superior qualifications to make such decisions.’’
(Internal
quotation marks omitted.) Id., 606. Simply put, our
deferential standard of review recognizes that quality
health care is best ensured by leaving such decisions
to the discretion of those who have the necessary expertise
to make them.
In concluding that the favorable termination rule
should be adopted, the trial court relied on the public
policies that would be served by applying the doctrine
in
this context—namely, avoiding inconsistent judgments
and preventing a ‘‘guilty party’’
from receiving a windfall.
We recognize that these two public policies are
significant, and that requiring a physician, consistent
with the favorable termination doctrine, successfully
to seek injunctive relief setting aside the decision
of a
hospital board before pursuing a claim for damages
would also serve the interests of judicial economy by
preventing the waste of judicial resources evidenced
by the present case, in which a jury was impaneled,
heard evidence over a period of weeks, and deliberated,
only to have the court render judgment for the defendant
notwithstanding the verdict.12 Those interests,
however, are outweighed by the more important public
policy of ensuring that hospital decision makers are
guided only by a concern for ensuring quality health
care. That public policy, which is furthered by our current,
deferential level of review of hospital privileging
decisions, would be seriously undermined by the application
of the favorable termination doctrine in this context.
We emphasize that it is not a hospital board’s
nature as an administrative type decision maker that
presents a policy problem. See DeLaurentis v. New
Haven,
supra, 220 Conn. 248–49. Rather, it is a hospital
board’s position as an extension of the hospital
that
renders the favorable termination doctrine inapplicable
due to policy concerns. In fact, the key distinction
between a hospital board hearing a physician’s
appeal
from an adverse privileging decision and an administrative
agency deciding a claim presented to it is that the
hospital board is, in a sense, the hospital. A physician
appealing to a hospital board essentially asks the hospital
to rule that it acted wrongfully in its initial adverse
decision. For the same reasons that we concluded in
Gianetti that
hospitals are legally obligated to abide
by their medical staff bylaws, hospital boards must be
permitted to remain neutral in hearing such appeals
and to act only in the interest of ensuring quality health
care. If a hospital board’s reversal of a peer
review
panel’s recommendation to suspend or terminate
a physician’s
privileges subsequently could be used against
the hospital as evidence on the issue of favorable termination,
the hospital board’s objectivity would be compromised.
By way of illustration, if a hospital board
were to agree with a physician that the challenged peer
review determination was not reasonable, it would subject
the hospital to liability. Application of the favorable
termination rule in this context, therefore, would not
further the public policy interest of ensuring that the
only principle guiding a hospital board’s resolution
of
a challenge to a peer review determination is the provision
of quality health care to the community and, consequently,
would be inconsistent with the public policy
goals that have guided our decisions governing review
of hospital privileging decisions. Accordingly, we conclude
that the trial court improperly extended the doctrine
to this context, and, as a result, improperly granted
the defendant’s motion for judgment notwithstanding
the verdict on that ground.
II
We next address the question of whether the trial
court’s judgment may be affirmed on the first alternate
ground for affirmance raised by the defendant, namely,
that the trial court properly could have concluded that
no reasonable jury could have found that the plaintiff
satisfied his burden of showing that the defendant did
not substantially comply with its bylaws in the summary
suspension process. We disagree.
We have stated that directed verdicts are disfavored
because ‘‘[l]itigants have a constitutional
right to have
factual issues resolved by the jury.’’ Mather v. Griffin
Hospital,
207 Conn. 125, 138, 540 A.2d 666 (1988).
Accordingly, ‘‘[o]ur review of a trial court’s
[decision]
to direct a verdict or to render a judgment notwithstanding
the verdict takes place within carefully defined
parameters. [In determining whether the trial court has
correctly set aside the verdict, we] must consider the
evidence, including reasonable inferences which may
be drawn therefrom, in the light most favorable to the
parties who were successful at trial . . . . [We will
uphold a trial court’s decision to set aside the
verdict
and direct judgment] only if we find that the jury could
not reasonably and legally have reached their conclusion.’’
(Citation omitted; internal quotation marks omitted.)
Mulligan v. Rioux, 229 Conn. 716, 726,
643 A.2d
1226 (1994).
As we explained in part I of this opinion, we accord
highly deferential review to a hospital board’s
decisions
regarding medical staff privileges. See Owens v. New
Britain General Hospital, supra, 229 Conn. 606–607.
The question is whether a hospital substantially complied
with its bylaws. Id. Consistent with substantial
compliance review under Owens and our established
standard of review of a trial court’s decision
to render
judgment notwithstanding the verdict, our inquiry in
the present case examines the evidence in the light
most favorable to sustaining the verdict to determine
whether the jury reasonably could have concluded that
the plaintiff established that the defendant did not
substantially
comply with its bylaws.
In assessing whether a hospital substantially complied
with its bylaws, we must be mindful of ‘‘the
overarching
function that medical staff bylaws are designed
to serve—the provision of quality medical care
to the
surrounding public community. . . . Medical staff
bylaws reflect what the medical community considers
to be crucial to the effective administration of the
hospital
and the provision of quality medical care by physicians
whose performance has earned them privileges.
At the same time, the procedural protocol of the bylaws
provide[s], outside of the judicial system, a fair method
for making decisions concerning staff privileges.’’
(Citation
omitted; internal quotation marks omitted.) Id.,
604. ‘‘[T]he obligation to follow medical
staff bylaws is
paramount and . . . a hospital must afford its medical
staff all the process and protections encompassed by
its bylaws, because that obligation can stem from a
contractual relationship between the hospital and the
physician, a preexisting legal duty imposed by our state
department of health regulations, and the public’s
substantial
interest in the operation of hospitals, public or
private. . . . [T]he public has an interest that staff
decisions
are not made arbitrarily. By requiring hospitals
to adhere to their bylaws, the risk of arbitrary decisions
is reduced.’’ (Citation omitted; internal
quotation marks
omitted.) Ramirez v. Health Net of the Northeast, Inc.,
285 Conn. 1, 20, 938 A.2d 576 (2008). Thus, although
medical decisions are not for courts to assess, the question
of whether a hospital has substantially complied
with its practices and procedures is proper grist for
the
jury mill.13
In the present case, the only bylaw applicable to the
summary suspension process is article V, § 1, A, which
provides in relevant part that ‘‘[t]he [e]xecutive
[c]ommittee
of either the [m]edical [s]taff or the [g]overning
[b]ody shall have the right to summarily suspend the
admitting and/or clinical privileges of a practitioner,
upon a determination that action must be taken immediately
in the best interest of patient care in the hospital
or when there is a potential immediate risk to
the well being of patients, employees or visitors. In
instances where convening the entire committee may
be practically impossible, and in the interest of time
and immediate action, this right to summarily suspend
may be delegated by either such committee to an individual
member or representative of such committee.
. . .’’14 (Emphasis added.) Although the trial
court technically
was correct in concluding that the bylaws do
not require any particular procedures in connection
with a summary suspension, article V, § 1, A of the
bylaws, imposes a substantive requirement before the
defendant may summarily suspend a physician’s privileges.
Specifically, the defendant may summarily suspend
a physician’s privileges only if a determination
has been made that action must be taken immediately
in the best interest of patient care or if there is potential
immediate risk to the well-being of patients, employees
or visitors. Either of these prerequisite circumstances
requires ‘‘immediate’’ action.
In the past, this court has
turned to the dictionary for guidance when defining the
term ‘‘immediate.’’ See Teresa T. v. Ragaglia, 272 Conn.
734, 749 n.9, 865 A.2d 428 (2005), citing Black’s
Law
Dictionary (6th Ed. 1990) (defining ‘‘immediate’’
as
‘‘[p]resent; at once; without delay . . .
denot[ing] that
action is or must be taken either instantly or without
any considerable loss of time’’). Although
this period
cannot be precisely defined and will vary according to
the circumstances of a particular case, in view of the
nature of the risk in failing to act, and the rights
and
interests of the patients whose well-being is at stake,
the
term reflects that there must be a finding of a sufficient
emergency to warrant summary intervention.
In support of his claim that the defendant did not
perceive the plaintiff’s position on the medical
staff as
posing a potential immediate risk to patients, employees
or visitors, or make a finding to that effect, and,
therefore, did not substantially comply with the requirement
of article V, § 1, A, of the bylaws, the plaintiff
presented the following evidence. The defendant
received Reinhold’s unfavorable report by letter
dated
November 7, 2000. In response, the defendant commissioned
the peer review panel to engage in a second,
more comprehensive review of the plaintiff’s cases.
According to Scoppetta’s testimony, after the peer
review panel held its first meeting to review the plaintiff’s
cases on January 15, 2001, there had been no rush
even to schedule the follow-up meeting with the plaintiff,
which did not occur until two weeks later. On the
contrary, Scoppetta testified that he expected that the
meeting would be scheduled and he did not express
any concerns about immediate harm or imminent
threat. Nor did Morowitz, with whom the plaintiff had
been scrubbing in, nor Asciuto, who continued to refer
patients to the plaintiff, express concern that the plaintiff
was posing an imminent threat of harm to his
patients. On February 7, 2001, nine days after the second
meeting on January 29, 2001, the peer review panel
submitted its report to Silvia, concluding that the overall
surgical care provided by the plaintiff during the time
periods reviewed did not meet the standard of care
expected of a board certified general surgeon. Upon
receiving the report, Silvia did not immediately schedule
a meeting of the medical executive committee to
summarily suspend the plaintiff’s privileges, nor
did he
seek to have the authority to do so delegated to an
individual member of the medical executive committee
or a representative of that committee as is permitted
under the bylaws. He did not discuss the report with
the plaintiff, nor did he request that any member of
the
medical executive committee do so.
The report was presented to the medical executive
committee on February 13, 2001, almost one month
after the peer review panel’s first meeting, and
slightly
more than three months after the defendant received
Reinhold’s unfavorable report. There was no evidence
presented that the February 13, 2001 meeting of the
medical executive committee had been called specifically
to address the question of the plaintiff’s privileges,
and Silvia testified that the meeting was most likely
the regularly scheduled monthly meeting. There is no
indication in the minutes of the February 13, 2001 meeting,
which were introduced into evidence, that the meeting
was anything other than the regularly scheduled
meeting. Moreover—and significantly—the minutes
of
the February 13, 2001 meeting of the medical executive
committee reveal that, although the summary suspension
was immediately effective, the committee did not
make an express finding that the suspension was immediately
necessary in the interest of patient care. Nothing
in the letter that Silvia subsequently sent to the plaintiff
advising him of the substance and basis of the medical
executive committee’s decision suggests that the
committee
made such a finding.
It is apparent, based on our review of the evidence
offered by the plaintiff, that the jury reasonably could
have found that the defendant did not comply with the
requirement in article V, § 1, A of the bylaws, that
the
defendant could summarily suspend a physician’s
privileges
only upon a finding that immediate action in the
interest of patient care was required or if there was
a
potential immediate risk to the well-being of patients,
employees or visitors. Although the requirement that
a
summary suspension must be justified by a sense of
urgency need not be interpreted to mean that a hospital
must take instantaneous action, it does require that
the defendant act with reasonable urgency under the
circumstances. This case presents more than a mere
technical breach of this requirement. Based on the
extended time period over which the various protracted
reviews took place, the way they were conducted, the
admitted lack of any concerns about immediate harm
or imminent threat by the members of the peer review
panel and the failure of the medical executive committee
to react to the peer review panel’s findings other
than as part of a regularly scheduled monthly meeting
of the medical executive committee, and in the absence
of any express finding by the committee that immediate
action was necessary to protect patients, employees or
visitors, the jury’s finding that the defendant
had not
substantially complied with article V, § 1, A of the
bylaws was amply supported by the evidence.15
III
The defendant also argues that the judgment of the
trial court may be affirmed on the alternate ground that
the plaintiff failed to rebut the statutory presumption
that the defendant was immune from monetary liability
under the Health Care Quality Improvement Act of 1986
(act), 42 U.S.C. § 11101 et seq. See footnotes 8, 9 and
10 of this opinion. The plaintiff responds that there
was
sufficient evidence to support the jury’s finding
that the
defendant had failed to prove its special defense of
immunity under the act by a preponderance of the evidence.
Because the defendant has not challenged on
appeal either the court’s instructions to the jury
regarding
the defendant’s special defense of immunity or
the
submission of the interrogatory to the jury on the defendant’s
special defense, we conclude that the defendant
has failed to preserve its claim that the jury’s
finding
that it was not entitled to immunity was not supported
by the evidence.
Congress enacted the act in light of its findings that
improving the quality of medical care is a national problem
and that effective peer review, which is an
important tool in ensuring quality medical care, is
unreasonably discouraged by the threat of private
money damage liability. Therefore, ‘‘[t]here
is an overriding
national need to provide incentive and protection
for physicians engaging in effective professional peer
review.’’ 42 U.S.C. § 11101 (5). Accordingly,
the act
grants immunity from damages for those participating
in a ‘‘professional review action’’
if the action was
undertaken ‘‘(1) in the reasonable belief
that the action
was in the furtherance of quality health care, (2) after
a reasonable effort to obtain the facts of the matter,
(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 (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).’’ 42 U.S.C. § 11112 (a).
Moreover, the
act incorporates a presumption, rebuttable by a preponderance
of the evidence, that a professional review
action has met the preceding standards. 42 U.S.C.
§ 11112 (a) (professional review action ‘‘shall
be presumed
to have met the preceding standards . . .
unless the presumption is rebutted by a preponderance
of the evidence’’). Put simply, a plaintiff
attempting to
overcome the immunity protection of the act bears the
burden of proving by a preponderance of the evidence
that the professional review action was not undertaken
in a reasonable manner. Title 42 of the United States
Code, § 11112 (c) (2), further provides that, ‘‘where
the
failure to take such [a professional review] action may
result in imminent danger to the health of any individual,’’
the professional review action need not comply—
at least initially—with the adequate notice and
hearing
requirement of 42 U.S.C. § 11112 (a) (3).16
The defendant consistently has claimed both at trial
and before this court that it was entitled to immunity
pursuant to 42 U.S.C. § 11112 (c) (2).17 The defendant
also consistently has asserted that it was entitled to
the
presumption of immunity set forth in 42 U.S.C. § 11112
(a), even if its immunity was grounded on 42 U.S.C.
§ 11112 (c) (2). The defendant raised this issue before
the trial court, but the court disagreed, concluding
that
the presumption of reasonableness in 42 U.S.C. § 11112
(a)—applicable to the requirements set forth in
42
U.S.C. § 11112 (a) (1) through (4)—did not have
any
bearing on whether the defendant was entitled to a
presumption under 42 U.S.C. § 11112 (c) (2) that the
imminent harm showing had been met. Consistent with
its conclusion, the court instructed the jury that the
defendant bore the burden of proving its immunity
defense by a preponderance of the evidence. Additionally,
the interrogatories submitted to the jury included
the following: ‘‘Did the defendant prove
by a preponderance
of the evidence its special defense of immunity
under federal law?’’ The jury answered ‘‘[n]o’’
to the
interrogatory. The defendant took an exception to the
charge on the ground that it did not state that the defendant
was entitled to a presumption of immunity, but
did not object to the submission of this interrogatory
to the jury. On appeal, however, the defendant has not
claimed that the jury charge was improper, and does
not claim that the interrogatory was submitted improperly
to the jury.
The defendant’s failure to challenge the jury charge
and the submission of the interrogatory in this appeal,
despite its claim that it was entitled to immunity under
42 U.S.C. § 11112 (c) (2) and that this court, in considering
the defendant’s claim, should assume that the defendant
was entitled to the presumption in 42 U.S.C.
§ 11112 (a), is problematic. The defendant asks us to
conclude that the trial court properly could have
granted the motion for judgment notwithstanding the
jury’s verdict on this basis, yet does not claim
that the
jury was misled by an improper charge or interrogatory.
The defendant asks us to decide the issue, therefore,
under a standard that was never submitted to the jury
for its consideration. Put another way, the defendant’s
argument appears to ask us to assume that, if the jury
had been instructed in accordance with the defendant’s
interpretation of the act, placing the burden on the
plaintiff to rebut the presumption that the defendant
was entitled to immunity under 42 U.S.C. § 11112 (c)
(2), the jury could not reasonably have concluded that
the defendant was not entitled to immunity. That we
cannot do—we cannot usurp the plaintiff’s
right to have
the issues decided by the jury. The defendant cannot
circumvent that right by asking us to decide a question
that was never presented to the jury, in the absence
of a claim that the jury was misled by an improper
instruction or interrogatory. The defendant’s claim
is
unpreserved and we do not review it.
IV
We next address the plaintiff’s claim that the
trial
court improperly denied the plaintiff’s motion
for punitive
damages on the ground that, although there was
sufficient evidence of tortious interference with business
expectancies, there was insufficient evidence that
the defendant had acted with the intent to injure or
in
reckless disregard of the plaintiff’s rights. The
plaintiff
contends that the two conclusions are fundamentally
inconsistent, that the trial court improperly substituted
its own findings for that of the jury and that there
was
sufficient evidence to support the jury’s finding
that the
defendant had the requisite intent necessary to justify
the award of punitive damages. We agree with the plaintiff
that there was sufficient evidence to support the
jury’s finding that the plaintiff was entitled
to punitive
damages.18
In order to establish that he was entitled to punitive
damages, the plaintiff was required to show that the
defendant’s behavior evidenced ‘‘a
reckless indifference
to the rights of others or an intentional and wanton
violation of those rights.’’ (Internal quotation
marks
omitted.) Bhatia v. Debek, 287 Conn. 397,
420, 948 A.2d
1009 (2008). Once again, we are mindful that in
reviewing the trial court’s decision to render
judgment
notwithstanding the verdict, we may affirm that decision
‘‘only if we find that the jury could not
reasonably
and legally have reached their conclusion.’’
(Internal
quotation marks omitted.) Mulligan v. Rioux,
supra,
229 Conn. 726. The question is not whether we would
have arrived at the same verdict, but whether, when
viewed in the light most favorable to sustaining the
verdict, the evidence supports the jury’s determination.
See id.
The plaintiff presented the following evidence at trial
in support of his claim that the defendant’s conduct
evidenced a reckless indifference to the plaintiff’s
rights
or an intentional and wanton violation of those rights.
Prior to the peer review investigation of the plaintiff’s
practice, his privileges had been renewed very recently,
in 1999, with no stated concerns regarding the plaintiff’s
performance. Subsequent to the renewal of his privileges,
when a concern did arise in connection with his
performance of a laparoscopic procedure, the issue was
resolved by Alfonsi’s six month period of observation
of the plaintiff’s laparoscopic procedures, and
at the end
of that period, Alfonsi was satisfied with the plaintiff’s
performance and removed the restriction from his practice.
It was only when Alfonsi retired as chairman of
the surgery department and Morowitz, who testified
that the direct economic competition between the plaintiff
and himself was ‘‘significant,’’
became chairman in
his place that the peer review investigations that
resulted in the plaintiff’s summary suspension
were
initiated. Morowitz, Silvia and Asciuto first informed
the plaintiff in November, 2000, that the first review,
by Reinhold, was going to commence. By the time they
informed the plaintiff that the review was pending, however,
it had, in fact, already been completed. The charts
that had been sent to Reinhold for review were not a
representative sample of the plaintiff’s practice,
but
represented only problem cases. The evidence suggested
that Reinhold was unaware of that fact, and his
letter setting forth his findings expressly stated that
his
conclusion was premised on the assumption that the
sample was representative. The second peer review was
commenced at the recommendation of Morowitz, who
not only selected thirteen charts in addition to the
twenty already reviewed by Reinhold—once again
selecting only problematic cases—but also prepared
his own ‘‘statistical summary’’
of the plaintiff’s cases.
Although not a member of the peer review panel, Morowitz
attended both meetings, and was present when
the plaintiff was called before the peer review panel
with only two hours notice. The plaintiff was required
to answer the peer review panel members’ questions
without an opportunity to reference his own files or
to
review charts beforehand. The peer review panel’s
final
report relied in part on the statistical summary that
had
been prepared by Morowitz.
The plaintiff had the right to expect that any summary
suspension of his privileges would adhere to the requirement
of article V, § 1, A, of the defendant’s bylaws,
that
such suspension would be grounded ‘‘upon
a determination
that action must be taken immediately in the best
interest of patient care in the hospital or when there
is
a potential immediate risk to the well being of patients,
employees or visitors.’’ As we already have
noted in
this opinion, the defendant never made the required
determination. Even the preceding, brief summary of
the evidence presented by the plaintiff is sufficient
to
support an inference that the defendant’s investigation
was contaminated by bias. Again, the question is not
whether we would have drawn that inference. Once
drawn by the jury, however, that inference is more than
sufficient to support a finding that the defendant acted
in reckless indifference of the plaintiff’s rights.
Thus,
we agree with the plaintiff that the trial court improperly
denied his motion for punitive damages.
V
The plaintiff claims that the trial court improperly
reached the merits of the defendant’s motion for
remittitur
and granted the motion, reducing the award of
$200,000 for noneconomic damages to $100,000. The
plaintiff argues that the court’s grant of the
motion for
remittitur rested on factual findings that contradicted
the factual findings underlying its grant of judgment
notwithstanding the verdict. The plaintiff also contends
that, because the court’s ruling granting the motion
for
judgment notwithstanding the verdict eliminated the
jury’s award of damages to the plaintiff, there
were
no damages at issue for purposes of the motion for
remittitur and the court’s decision granting remittitur
was an impermissible advisory opinion. The defendant
does not offer any argument in response to this contention
and merely argues that the court’s decision
granting remittitur was substantively correct. We affirm
the judgment of the trial court.
‘‘The trial court may order a remittitur
if it concludes,
as a matter of law, that the verdict is excessive. General
Statutes § 52-216a . . . .’’19 (Citation omitted.) Presidential
Capital Corp. v. Reale, 231 Conn. 500, 510,
652
A.2d 489 (1994). It is true that when the court ordered
the remittitur, it already had vacated the jury verdict
award of damages. The court acknowledged that it was
‘‘technically unnecessary’’ for
it to reach the question
of remittitur. That the court did so because it recognized
the possibility that its decision might be reversed is
evident from its explanation of why it reached the issue
of remittitur: ‘‘the court does so because
it is a discretionary
matter for the trial court, rather than a pure
question of law that an appellate court could just as
easily decide.’’ Principles of judicial economy
persuade
us that the trial court had the authority to address
the
defendant’s motion for remittitur. Moreover, the
court
did not abuse its discretion in granting the motion.
In
concluding that the award was excessive, the court
relied on the evidence presented of the plaintiff’s
injuries.
Specifically, the court relied on the absence of any
proof that the plaintiff had suffered any damage to his
reputation, and, with respect to his emotional distress,
the limited duration of any such distress from his summary
suspension, as well as the absence of any physical
manifestations suffered as a result of emotional
distress.
VI
Finally, we address the plaintiff’s claim that
the trial
court improperly directed a verdict for the defendant
on the plaintiff’s claim alleging a violation of
CUTPA.
The plaintiff argues that the trial court improperly
granted the defendant’s motion for directed verdict
on
the ground that the defendant’s decision was not
subject
to CUTPA because: (1) it was an employment decision;
(2) it was a medical decision; and (3) it was not a
competitive economic decision. Because we agree that
the defendant’s decision was a medical decision,
we
affirm the judgment of the trial court.20
‘‘[General Statutes §] 42-110b (a) provides
that [n]o
person shall engage in unfair methods of competition
and unfair or deceptive acts or practices in the conduct
of any trade or commerce. It is well settled that in
determining whether a practice violates CUTPA we
have adopted the criteria set out in the cigarette rule
by the federal trade commission for determining when
a practice is unfair: (1) [W]hether the practice, without
necessarily having been previously considered unlawful,
offends public policy as it has been established
by statutes, the common law, or otherwise—in other
words, it is within at least the penumbra of some common
law, statutory, or other established concept of
unfairness; (2) whether it is immoral, unethical, oppressive,
or unscrupulous; (3) whether it causes substantial
injury to consumers, [competitors or other businesspersons].
. . . All three criteria do not need to be satisfied
to support a finding of unfairness. A practice may be
unfair because of the degree to which it meets one of
the criteria or because to a lesser extent it meets all
three. . . . Thus a violation of CUTPA may be established
by showing either an actual deceptive practice
. . . or a practice amounting to a violation of public
policy. . . . In order to enforce this prohibition,
CUTPA provides a private cause of action to [a]ny person
who suffers any ascertainable loss of money or
property, real or personal, as a result of the use or
employment of a [prohibited] method, act or practice
. . . .’’ (Citations omitted; internal quotation
marks
omitted.) Ramirez v. Health Net of the Northeast, Inc.,
supra, 285 Conn. 18–19.
In Haynes
v. Yale-New Haven Hospital, 243 Conn.
17, 38, 699 A.2d 964 (1997), we stated that ‘‘the
touchstone
for a legally sufficient CUTPA claim against a
health care provider is an allegation that an entrepreneurial
or business aspect of the provision of services
is implicated, aside from medical competence or aside
from medical malpractice based on the adequacy of
staffing, training, equipment or support personnel.’’
The
challenged decision in the present case was one made
by the defendant and was one directly related to ‘‘medical
competence . . . .’’21 Id. The purpose of the
peer
review process is to ensure that only physicians who
are
professionally competent enjoy privileges at hospitals.
See Owens v. New Britain General Hospital,
supra, 229
Conn. 606 (characterizing hospital decisions regarding
privileges as ‘‘determinations of the professional
competence
and capability of a physician to practice medicine
in a hospital setting’’). Such decisions
do not fall
within the ambit of CUTPA.
The judgment is reversed as to the grant of the motion
for judgment notwithstanding the verdict and as to the
denial of the motion for punitive damages, and the case
is remanded for further proceedings according to law;
the judgment is affirmed in all other respects.
In this opinion the other justices concurred.
1 The
plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant
to General
Statutes § 51-199 (c) and Practice Book § 65-1.
2 As
part of the hospital’s quality assurance peer review process, morbidity
and mortality meetings provided an opportunity for the
department of surgery
to review both general monthly statistics regarding outcomes,
lengths
of stay, complications, infections, and other matters,
and individual cases
selected each month by quality assurance nurses. The
attending surgeon
for each individual case being reviewed presented a synopsis
of the case.
Following a discussion, the attending members ordinarily
reached a consensus
regarding whether further action was warranted, including,
but not
limited to, further investigation or a reprimand of the
physician in question.
3 John
Russell, a general surgeon who served at the time as chairman of
surgery at New Britain General Hospital, had agreed to
be available as
backup for Alfonsi during that period, but his services
were never needed.
4 The
plaintiff claims in his reply brief that Morowitz selected only sixteen
of the charts that Reinhold reviewed, and selected an
additional seventeen
charts. In support of that claim, the plaintiff supplies
a chart that he created
for purposes of appeal. We rely instead on testimony
presented at trial that
Morowitz used the twenty cases that had been reviewed
by Reinhold and
selected thirteen additional charts.
5 The
plaintiff sought review pursuant to article VI of the defendant’s
medical staff bylaws, entitled Hearings and Appeals,
which provides: ‘‘Section
1. When a Hearing May Be Requested
‘‘A. Initiation of Hearing
‘‘Recommendations or Actions. The following
recommendations or
actions shall, if deemed adverse pursuant to paragraph
B., entitle the practitioner
affected thereby to a hearing . . .
‘‘10. Suspension of clinical privileges .
. . .’’
6 Because
the scope and effect of the consent order are expressly limited
to proceedings before the state medical examining board,
and because the
order expressly acknowledges both that by entering into
the consent order
the plaintiff was not admitting any wrongdoing with respect
to his care of
surgical patients and that the plaintiff had challenged
the revocation of his
privileges in the present action, the defendant’s
claim that the plaintiff was
collaterally estopped from bringing this action by virtue
of his having entered
into the consent order has no merit.
7 The
defendant had filed a third motion for summary judgment on May
17, 2007, but the trial court declined to consider that
motion because it had
been filed in violation of the court’s scheduling
order and without the
permission of the court.
8 Title
42 of the United States Code, § 11111 (a) (1), provides in relevant
part that if a ‘‘professional review action’’
by a ‘‘professional review body’’
meets certain statutory prerequisites, the professional
review body and any
persons who act as members or staff of the body, under
contract or other
formal agreement with the body, or who participate with
or assist the body
with respect to the action, ‘‘shall not be liable in damages under any law
of the United States or of any State (or political subdivision
thereof) with
respect to the action. . . .’’ (Emphasis
added.)
9 Title
42 of the United States Code, § 11112 (a), provides in relevant part
that, for immunity to attach pursuant to the act, the
professional review
action must be taken ‘‘(1) in the reasonable
belief that the action was in
the furtherance of quality health care,
‘‘(2) after a reasonable effort to obtain
the facts of the matter,
‘‘(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
‘‘(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 rebutted by a preponderance
of the evidence.’’
10 Title
42 of the United States Code, § 11112 (c), provides: ‘‘Adequate
procedures in investigations or health emergencies
‘‘For purposes of section 11111 (a) of this
title, nothing in this section
shall be construed as—
‘‘(1) requiring the procedures referred to
in subsection (a) (3) of this
section—
‘‘(A) where there is no adverse professional
review action taken, or
‘‘(B) 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; or
‘‘(2) precluding an immediate suspension
or restriction of clinical privileges,
subject to subsequent notice and hearing or other adequate
procedures,
where the failure to take such an action may result in
an imminent
danger to the health of any individual.’’
11 The
court denied as moot the defendant’s motion to set aside the verdict.
12 There
is no evidence in the record that the defendant ever sought to
have the plaintiff’s claim for injunctive relief
tried to the court prior to the
trial to the jury. Although the trial court had discretion
to order the claim
for injunctive relief tried first, no such order ever
issued.
13 Indeed,
the trial court’s instructions to the jury made this very clear.
‘‘In order to prevail on this first count,
the plaintiff must prove by a preponderance
of the evidence that the defendant failed to substantially
comply with
these bylaw provisions. Under the substantial compliance
standard, merely
technical or minor violations in the procedures employed
that do not result
in material harm to the physician or otherwise undermine
the result reached
by the hospital will not rise to the level of breaches
of the bylaws. Although
a hospital is bound by its bylaws, your review of the
defendant[’s] . . .
decision to suspend the plaintiff[’s] . . . privileges
should focus on the
reasonableness of the action taken in relation to the
interest of the plaintiff,
the defendant and the public.
‘‘In determining whether the [defendant]
breached the substantial compliance
standard, you are not allowed to substitute your judgment
for that of
the [defendant] . . . . You may consider whether it is
appropriate to take
into account the 2002 hospital proceedings concerning
the plaintiff’s hospital
privileges. You are not, however, allowed to rely on
your own personal
opinion of [the plaintiff’s] abilities. Instead,
you must carefully consider
whether the [defendant] . . . in summarily suspending
the plaintiff’s privileges,
substantially complied with the applicable hospital bylaw
requirements
set forth in article V, § 1, A. In that regard, exhibit
C, which you’ll
have concerning the 2002 proceedings, can be considered
by you to explain
the process used by the [defendant] but not to form your
own opinion
concerning the plaintiff’s clinical skills or the
quality of care that he rendered
to patients.’’
14 The
plaintiff does not challenge the reasonableness or adequacy of
the bylaws.
15 The
defendant also argues that the plaintiff did not suffer material
prejudice due to any defect in the summary suspension.
The defendant
contends that the hearing panel’s subsequent determination
‘‘confirmed that
the plaintiff did not conform to the standard of care
expected of a general
surgeon,’’ and argues that the hearing panel’s
determination vitiated any
possible taint. We reject this claim. First, the defendant’s
argument misconstrues
the applicable standard in the summary suspension process.
A determination
by the hearing panel that the plaintiff failed to conform
to the
applicable standard of care would not necessarily provide
support for the
medical executive committee’s summary suspension
of the plaintiff, which
had to comply with the ‘‘potential immediate
risk’’ requirement of article
V, § 1, A, of the bylaws. Second, as we have concluded,
the defendant’s
suspension of the plaintiff was not in substantial compliance
with its bylaws,
and cannot be cured by subsequent proceedings that conformed
to the
bylaws because such a result would render meaningless
the substantive
rights to be afforded to a physician in connection with
a summary suspension.
Finally, in deciding Owens v. New Britain General Hospital, supra, 229
Conn. 592, we did not address or adopt the ‘‘material
prejudice’’ analysis
of the Appellate Court. See Owens v. New Britain General Hospital, 32
Conn. App. 56, 69, 627 A.2d 1373 (1993). The parties
in the present case did
not brief the issue of whether the Appellate Court’s
material prejudice
analysis is or should be a part of the substantial compliance
analysis that
we set forth in Owens and we decline to address the issue.
This case was
litigated under that standard, however, and the jury
was so instructed. See
footnote 13 of this opinion. That instruction has not been challenged.
16 See
footnote 10 of this opinion.
17 Although
the defendant also claims on appeal that it is entitled to immunity
because it has met the four requirements of 42 U.S.C.
§ 11112 (a), the
defendant conceded in its motion for judgment notwithstanding
the verdict
that ‘‘the summary suspension preceded the
notice and hearing procedures
required by [42 U.S.C.] § 11112 (a) (3).’’
The defendant therefore has waived
any claim to immunity on this basis.
18 Because
we agree with the plaintiff that there was sufficient evidence
to support the jury’s finding that the plaintiff
was entitled to punitive damages,
we need not address his remaining arguments, namely,
that the two
conclusions are inconsistent and that the trial court
improperly substituted
its own findings for that of the jury.
19 General
Statutes § 52-216a provides in relevant part: ‘‘If the court at the
conclusion of the trial concludes that the verdict is
excessive as a matter
of law, it shall order a remittitur and, upon failure
of the party so ordered
to remit the amount ordered by the court, it shall set
aside the verdict and
order a new trial. . . .’’
20 Because
we conclude that the defendant’s decision was a medical one
that was not subject to CUTPA, we do not reach the question
of whether
the decision was also an employment decision or a competitive
economic
decision.
21 Although
the jury could have found that a possible bias or improper
motive by Morowitz contaminated the peer review process,
the trial court
properly found that the defendant based its decision on medical
competence.
