Samuel v. Herrick Memorial , 201 F.3d 830 ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
12 Samuel v. Herrick Memorial No. 99-1462 Pursuant to Sixth Circuit Rule 206
Hosp., et al. ELECTRONIC CITATION: 2000 FED App. 0026P (6th Cir.)
File Name: 00a0026p.06
Obstetricians and Gynecologists concluded that plaintiff had
exercised "poor judgment" and had failed to "demonstrate UNITED STATES COURT OF APPEALS
foresight to anticipate complications of care." Id. The
American College of Obstetricians and Gynecologists report FOR THE SIXTH CIRCUIT
also stated that plaintiff's "failure to recognize critical signs of _________________
fetal and maternal compromise prevents him from
recognizing the need to seek assistance of from providing
;
optimal obstetric care based on recognized, published

standards of care." Id. Finally, the American College of DONALD R. SAMUEL, M.D.,

Obstetricians and Gynecologists concluded that "[a]ttempts to Plaintiff-Appellee,

rehabilitate [plaintiff] within Herrick Memorial Hospital can

not succeed due to lack of patient volume, acuity of care, and No. 99-1462
v.

personal-social relationships previously established at this >

hospital." Id. Based on this report, we believe that any
HERRICK MEMORIAL
HOSPITAL, LENAWEE HEALTH 
damage that may be done to plaintiff's professional reputation

is substantially outweighed by the harm that defendants and

the public would suffer if plaintiff continues to practice ALLIANCE, DR. LAURIE

medicine without additional training. Because the balance of BARKWAY, DAVID HICKMAN,

harms weighs against granting the preliminary injunction, and DR. MICHAEL SAMMARCO,

because plaintiff is not likely to prevail on the merits, we
MICHAEL MIHORA, JOHN

conclude that the district court abused its discretion when it
EASTON and LINDA YIELDING, 
granted the preliminary injunction in this case. ROBERTSTAD, HAROLD

Defendants-Appellants. 
We have interlocutory appellate jurisdiction in this case

only to review the propriety of the injunction under 28 U.S.C.
1
§ 1292(a)(1), not to review on an interlocutory basis the
denial of defendants' motion for summary judgment.
Accordingly, the preliminary injunction is dissolved.
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 99-60140—George C. Steeh, District Judge.
Argued: June 9, 1999
Decided and Filed: January 18, 2000
Before: MERRITT, DAUGHTREY, and MOORE, Circuit
Judges.
1
2 Samuel v. Herrick Memorial No. 99-1462 No. 99-1462 Samuel v. Herrick Memorial 11
Hosp., et al. Hosp., et al.
_________________ interfere with plaintiff's business relationships. As explained
above, we do not believe plaintiff has shown a likelihood of
COUNSEL success on the merits of the underlying claims that form the
bases for his conspiracy claim. Nor has plaintiff stated any
ARGUED: David A. French, MILLER, CANFIELD, specifics as to how defendants conspired against him.
PADDOCK & STONE, Ann Arbor, Michigan, for Basically, plaintiff has alleged that defendants conspired to
Appellants. Robert A. Maxwell, DENISON & MAXWELL, drive him out of business either because of his race and/or
Bloomfield Hills, Michigan, for Appellee. because they did not want any competition in the obstetrics
and gynecology area. Plaintiff offers little in the way of
_________________ support for these conspiracy theories except the hiring of Dr.
Sammarco and the results of the peer review process. As
OPINION explained above, thus far plaintiff has not put forth any facts
_________________ demonstrating an improper motive behind these actions.
MERRITT, Circuit Judge. This appeal from a grant of a Therefore, we do not find that plaintiff has demonstrated a
preliminary injunction concerns the suspension of staff likelihood of success on the merits as to a conspiracy
privileges to plaintiff, Donald Samuel, M.D., an underlying any of these claims.
obstetrician/gynecologist, by defendant Herrick Memorial We also believe that the district court erred when it
Hospital. After Herrick Memorial suspended plaintiff's staff determined that the balance of harms in this case weighs in
privileges, he moved the district court for a preliminary favor of granting the preliminary injunction. The district
injunction enjoining the suspension. The district court court granted the preliminary injunction because it determined
granted the injunction, thereby reinstating plaintiff's privileges that the sanctions imposed by the hospital would cause
with certain conditions. Defendants appealed the grant of the irreparable harm to the plaintiff's professional reputation in
injunction to this Court. This Court stayed enforcement of the the community. See Order Granting Preliminary Injunction
injunction by order dated May 14, 1999. The case comes to at 7 ("[P]laintiff is facing not only financial ruin and
our panel from the motions docket and we heard oral insolvency if injunctive relief is not granted, but the
argument on the motion to stay. For the reasons that follow, destruction of his professional reputation and with it, the loss
we now vacate the injunction and remand the case to the of any chance to rebuild his now burgeoning medical
district court for further proceedings. practice.") In reaching its decision, however, the district court
I. failed to give sufficient weight to the harm that defendants
and the public would suffer if the plaintiff is allowed to
Plaintiff is an African-American physician with a private continue to practice obstetrics and gynecology without first
practice in Tecumseh, a small community between Toledo, receiving further medical training.
Ann Arbor and Detroit. He attended medical school in
Toledo and completed his residency in obstetrics and Indeed, the results of the on-site review that was performed
gynecology at a hospital in Michigan. He set up a practice in by the American College of Obstetricians and Gynecologists
Texas and, in 1990, he was recruited by Herrick Memorial to show that plaintiff's poor judgment and clinical deficiencies
be its staff OB/GYN because Tecumseh did not have one in have endangered his patients on several occasions. Report of
the community. In 1992, plaintiff set up a private practice, Site Visit at 30. In its report, the American College of
10 Samuel v. Herrick Memorial No. 99-1462 No. 99-1462 Samuel v. Herrick Memorial 3
Hosp., et al. Hosp., et al.
Gen. Hosp., 229 Conn. 592, 643 A.2d 233 (1994); Lewisburg with financial backing by Herrick Memorial, and he was
Comm. Hosp., Inc. v. Alfredson, 805 S.W.2d 756 (Tenn. extended staff privileges at Herrick Memorial. In 1996 he
1991); Wong v. Garden Park Comm. Hosp., Inc., 565 So. 2d became Chief of Staff at the hospital.
550 (Miss. 1990); Bouquett v. St. Elizabeth Corp., 43 Ohio St.
3d 50, 558 N.E.2d 113 (1989); Bock v. John C. Lincoln In 1996, defendant Lenawee Health Alliance purchased
Hosp., 145 Ariz. 432, 702 P.2d 253 (Ariz. Ct. of App. 1985); Herrick Memorial and nearby Emma Bixby Memorial
Spencer v. Community Hosp. of Evanston, 87 Ill. App. 3d Hospital, the only two hospitals in Tecumseh, and runs them
214, 408 N.E.2d 981 (1980); Margolin v. Morton F. Plant under a joint operating agreement. Plaintiff was a vigorous
Hosp. Ass'n, Inc., 348 So. 2d 57 (Fla. App. 1977). Michigan opponent of this joint venture and claims that the hospital has
follows an even more stringent rule that does not allow any been trying to drive him out ever since. After the purchase,
review, even to ensure that the methods put forth by hospital Lenawee Health Alliance started looking for another
for peer review are followed. See, e.g., Sarin v. Samaritan OB/GYN, despite plaintiff's protests that the area could not
Health Center, 176 Mich. App. 790, 795, 440 N.W.2d 80 support another OB/GYN. Over that protest, defendant Dr.
(1989); accord Zipper v. Health Midwest, 978 S.W.2d 398 Sammarco, who is white, was hired as the staff OB/GYN at
(Mo. App. 1998); Winston v. American Med. Int'l, Inc., 930 Herrick Memorial.
S.W.2d 945 (Tex. Civ. App. – Houston 1997). The third
option, followed by a small but apparently growing number In October 1998 one of plaintiff's patients died from
of states, allows judicial review to ensure that the hospital's hemorrhaging after a caesarean delivery. The death was
decision was not arbitrary and capricious or otherwise plaintiff's first maternal death in 10 years of practice. After
unreasonable. The laws in these jurisdictions require that the the death, the hospital required him to consult with another
hospital's decision to suspend or otherwise limit a physician's physician, in this case Dr. Sammarco, the only other OB/GYN
access to the hospital facilities be supported by "some" at Herrick Memorial, upon admitting a patient to the hospital.
evidence or allow some further analysis beyond review only This monitoring arrangement went on for four months, during
of adherence by the hospital to its procedures. See, e.g., the pendency of the hearing process required by the hospital's
Cooper v. Delaware Valley Med. Center, 539 Pa. 620, 654 bylaws, and continued until this Court stayed enforcement of
A.2d 547 (1995); Zoneraich v. Overlook Hosp., 212 N.J. the injunction and reimposed the suspension of privileges in
Super. 83, 514 A.2d 53 (1986). May at the request of defendants.
In light of Michigan's flat rule against judicial intervention, The hospital's Ad Hoc Hearing Committee held a hearing
we conclude that the district court erred in finding a on January 27, 1999, at which two physicians testified as to
likelihood of success on the merits on the tortious interference plaintiff's competence and stated that plaintiff was not to
with contractual relations and business relationships claim. blame for the death. On February 3, 1999, the Ad Hoc
Hearing Committee recommended to the Medical Executive
4. Conspiracy Claim Committee that the monitoring be discontinued pending the
results of an external review to be conducted by the American
Plaintiff's conspiracy claim includes allegations of a College of Obstetricians and Gynecologists. The Medical
conspiracy to unreasonably restrain plaintiff from practicing Executive Committee rejected the Ad Hoc Committee's
medicine in the community, a conspiracy to discriminate recommendation and the monitoring requirement continued.
against plaintiff based on his race and a conspiracy to
4 Samuel v. Herrick Memorial No. 99-1462 No. 99-1462 Samuel v. Herrick Memorial 9
Hosp., et al. Hosp., et al.
In February 1999, three reviewers from the American breached its contract with him and he is not asking for a
College of Obstetricians and Gynecologists conducted an on- specific review of whether the hospital followed its own
site review of Herrick Memorial's obstetrics unit, at the procedures in suspending him, he is actually seeking judicial
hospital's request. One reviewer was the Director of Medical intervention into the decision of a private hospital to suspend
Education in the Department of Obstetrics and Gynecology at his staff privileges. A decision of this nature is not proper
Children's Hospital in Buffalo, New York, and another, an matter for judicial intervention and consideration of his claim
African-American, was from the Department of Obstetrics would make a "mockery of the rule that prohibits judicial
and Gynecology at the University of Chicago. The third review of such decisions by private hospitals." Id. at 794, 440
reviewer was a medical writer and computer specialist. The N.W.2d at 83.
review included interviews with staff members and a review
of some of plaintiff's case charts, although the reviewers knew The judicial reviewability of medical staffing decisions has
plaintiff only as "Physician A." been debated and continues to be debated in most states.
Most physicians are not employed by a hospital but instead
At the exit interview with hospital staff, the independent are independent contractors who are granted privileges to use
reviewers issued a preliminary report recommending that a hospital, including its staff and equipment. A hospital's
plaintiff undergo a six-month, intensive training program at procedures for granting or renewing privileges and the
the residency level before he be allowed to continue the standards by which a doctor must abide are generally
practice of medicine. On March 4, 1999, based on the embodied in the hospital's bylaws.
reviewers' preliminary report given at the exit interview, the
Executive Committee recommended suspension of plaintiff's Most jurisdictions distinguish between private and public
privileges pending his completion of a six-month remedial hospitals, with the staffing decisions of public hospitals
course in obstetrics/gynecology in a program approved by the subject to the due process and equal protections guarantees
Executive Committee. Plaintiff had thirty days to apply for under the United States Constitution and the staffing
such a program. Failure to comply with these conditions decisions of private hospitals generally unreviewable or
would result in termination of his privileges. subject to very limited judicial review.1 In addition, the level
of judicial review may differ between decisions to grant
The next day, March 5, 1999, plaintiff filed a complaint privileges as an initial matter and decisions to limit or
alleging discrimination on the basis of race, antitrust suspend existing privileges.
violations and state law tort and contract claims. Plaintiff
also moved for a preliminary injunction to lift the suspension, The rule generally forbidding judicial review of staffing
which was granted in part by the district court with decisions by private hospitals appears to be the majority view
instructions to defendants to institute monitoring procedures in the United States, although some jurisdictions allow
for plaintiff instead of suspending his privileges. Specifically, limited judicial review to ensure only that the hospital
the complaint alleges (1) violations of 42 U.S.C. § 1981 based followed its own procedures. See, e.g., Owens v. New Britain
on defendants' interference with Samuel's business contracts
and expectancies based on race (Count I), (2) that defendants
acted in concert to revoke his staff privileges and eliminate 1
Florida has eliminated the distinction between private and public
OB/GYN competition within Lenawee County in violation of hospitals for purposes of judicial reviewability by legislating that a
the Sherman Antitrust Act, 15 U.S.C. §§ 1 et seq. (Count II), hospital must promulgate bylaws and those bylaws create a binding
contract between the physician and the hospital.
8 Samuel v. Herrick Memorial No. 99-1462 No. 99-1462 Samuel v. Herrick Memorial 5
Hosp., et al. Hosp., et al.
alleged, plaintiff is complaining of nothing more than a (3) a state law claim of tortious interference with business
decrease or potential decrease in patients from competition. expectancy and relationships (Count III), (4) existence of a
Based on the facts in the record at this time, we do not see a civil conspiracy among defendants to (a) unreasonably
likelihood on the merits of the antitrust claim. restrain plaintiff from practicing medicine, (b) interfere with
contracts with patients and (c) discriminate based on race
3. Tortious Interference with Contractual Relations and (Count IV), (5) defamation regarding statements about
Business Relationships Claim plaintiff's ability to practice medicine and his mental health
(Count V), (6) a violation of the due process rights of
As to the tortious interference claim, the claim on which the reasonable notice and a hearing prior to the deprivation of his
district court found the most chance of success by plaintiff, property interest to practice medicine (Count VI).
Michigan law is very clear that claims arising from the peer
review process are not judicially reviewable. The district After a hearing held March 8, the district court granted the
court therefore did not have jurisdiction to review this claim. preliminary injunction in part and ordered continuation of the
Under Michigan law, a private hospital is empowered to monitoring process. On March 15, defendants filed a motion
appoint and remove its members at will without judicial for dismissal of the complaint or summary judgment. At a
intervention and has the right to exclude any doctor from hearing held March 16, the district court ordered continuation
practicing therein. Muzquiz v. W.A. Foote Mem. Hosp., Inc., of the monitoring process.
70 F.3d 422, 430 (6th Cir. 1995); Long v. Chelsea Community
Hosp., 219 Mich. App. 578, 586, 557 N.W.2d 157, 161 On April 14, 1999, the court dismissed the defamation
(1996); Sarin v. Samaritan Health Center, 176 Mich. App. (Count V) and due process (Count VI) claims pursuant to
790, 795, 440 N.W.2d 80 (1989); Veldhus v. Central Mich. Rule 12(b)(6), but refused to dismiss the other claims or to
Community Hosp., 142 Mich. App. 243, 246, 369 N.W.2d grant defendants' motion for summary judgment, noting that
478, 479-80 (1985); Hoffman v. Garden City Hosp.- it believed the state law claim for tortious interference to be
Osteopathic, 115 Mich. App. 773, 778-79, 321 N.W.2d 810 the strongest claim. In a separate order issued the same day,
(1982). the district court granted the preliminary injunction in part,
because (1) it found that plaintiff had some possibility of
The only exception to this nonreviewability rule arises succeeding on the merits with regards to his tortious
when defendants have been accused of violating state or interference with business expectations claim and (2) it found
federal law, such as state or federal discrimination laws. The that plaintiff would be irreparably injured in his medical
district court was free to review the federal antitrust and career by the suspension. The district court ordered that the
discrimination claims, as we did above, but it was without monitoring remain in place to ensure the safety of the
jurisdiction to review plaintiff's claim of tortious interference community. On April 26, 1999, the district court denied a
with contractual relations and business relationships, as are stay of the injunction pending appeal. At a May 3 status
we, because it would necessarily involve a review of the conference, the district court approved the monitoring plan
decision to suspend plaintiff and the methods or reasons proposed by plaintiff, which called for plaintiff to confer
behind that action, which is clearly prohibited under Michigan telephonically with several doctors in other hospitals on each
law as improper interference with the hospital's decisions and admission. Defendants did not offer any counterproposal
the peer review process. See Sarin at 791-92, 440 N.W.2d regarding monitoring and maintained that any monitoring was
at 80. Although plaintiff does not allege that the hospital
6 Samuel v. Herrick Memorial No. 99-1462 No. 99-1462 Samuel v. Herrick Memorial 7
Hosp., et al. Hosp., et al.
unsatisfactory and unethical in light of the magnitude of 1. Racial Discrimination
plaintiff's alleged deficiencies.
Plaintiff alleges that Herrick Memorial discriminated
Defendants appealed the denial of the stay of the injunction against him based on race in violation of 42 U.S.C. § 1981.
pending appeal and filed an interlocutory appeal of the denial However, no specific examples relating to discrimination
of their summary judgment motion. This Court stayed against him are recited in his complaint. Plaintiff recites facts
enforcement of the injunction, thereby reimposing the concerning possible racial discrimination by Herrick
suspension of plaintiff's staff privileges at the hospital, but Memorial against a third party who applied for a job at the
also set the appeal on an expedited basis. hospital, but offers neither actual nor circumstantial evidence
regarding conduct against him. The only factual allegations
II. cited to support his claim are that the hospital hired Dr.
Sammarco, who is white, and his bare allegation that he was
When ruling on a motion for preliminary injunction, the reviewed and suspended after a patient death while
district court considers four factors: (1) whether the movant nonminority doctors were treated differently under similar
is likely to prevail on the merits; (2) whether the movant circumstances. Based on these factual allegations, we do not
would suffer irreparable injury if the court does not grant the see a likelihood of success on the merits.
injunction; (3) whether a preliminary injunction would cause
substantial harm to others and (4) whether a preliminary 2. Antitrust Claim
injunction would be in the public interest. Glover v. Johnson,
855 F.2d 277, 282 (6th Cir. 1988). We review the district As to the antitrust claim, plaintiff contends that the hospital
court's determination under an abuse of discretion of standard. wishes to drive him out of business because it would derive
Id. greater revenue from patients seeing Dr. Sammarco, who is a
staff physician, instead of plaintiff, who in private practice
Likelihood of Success on the Merits and has hospital privileges. In other words, the hospital first
hired Dr. Sammarco and then used the peer review process
We agree with the district court that there is minimal improperly to restrain access to the market for obstetric and
evidence in the record to demonstrate a likelihood of success gynecological services. First, at least the individual
on the merits of plaintiff's claims. Order Granting Preliminary defendants may be immune from antitrust liability for a
Injunction at 13 n.2 ("Plaintiff has not argued, at least not properly conducted peer review process. The Health Care
with any serious conviction, that any of his other claims Quality improvement Act of 1986, 42 U.S.C. §§ 11101 et
[other than the tortious interference claim] are likely to seq., provides antitrust immunity for participants in properly
succeed on the merits."). The facts alleged in the complaint conducted peer review processes. Id. § 11111; see also Lie v.
are barely adequate to survive a motion to dismiss on the St. Joseph Hosp. of Mt. Clemens, Mich., 964 F.2d 567, 570
federal discrimination and antitrust claims, although after (6th Cir. 1992). Second, plaintiff has related virtually no facts
more discovery it may be possible for plaintiff to adduce that demonstrate that there was any anticompetitive motive
further evidence on these claims. behind the hiring of Dr. Sammarco or plaintiff's suspension.
The allegations are based only on speculation of the
motivation behind these actions. Absent the assumptions
about the motives behind the conduct that plaintiff has