Bradley Botvinick v. Rush University Medical Center ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1966
B RADLEY B OTVINICK,
Plaintiff-Appellant,
v.
R USH U NIVERSITY M EDICAL C ENTER, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cv-02054—Ronald A. Guzmán, Judge.
A RGUED A PRIL 6, 2009—D ECIDED JULY 24, 2009
Before B AUER, S YKES, and T INDER, Circuit Judges.
T INDER, Circuit Judge. After Bradley Botvinick com-
pleted his residency in anesthesiology at Rush University
Medical Center (“Rush”), he obtained employment with
Anesthesiology Associates of Dunedin (“AAD”), a Florida
doctors’ association. Botvinick lost that job, however,
when the hospital where AAD doctors practice denied
Botvinick’s application for clinical privileges. Believing
that Rush sabotaged his application by feeding the
2 No. 08-1966
hospital false, petty information about his reputation,
Botvinick sued Rush and several of its doctors for tortious
interference with his expectation of employment. The
district court granted the defendants’ motion for sum-
mary judgment, concluding that Botvinick lacked evi-
dence that the defendants interfered with his applica-
tion for privileges. We agree with the district court that
Botvinick failed to create a genuine issue of material fact
on his tortious interference claim and, accordingly, affirm.
I. Background
Botvinick was a resident in Rush’s anesthesiology
department from 2004 to 2005. Although Botvinck’s
clinical skills were solid, his professional reputation
came under fire amid a departmental scandal involving
sex, lies, and possibly identity theft. In December 2004,
Dr. Heather Nath, an attending physician at Rush, received
an uninvited delivery of sexually explicit items from
the “Lover’s Lane” company. Nath, unamused by this
sophomoric prank, complained to the department head
and decided to do a little investigating of her own. Nath’s
first clue as to the prankster’s identity was the Lover’s
Lane delivery invoice, which conspicuously identified
“Brad Botvinick” as the purchaser.
Botvinick countered with evidence that he was framed.
Rush’s data processing department had tracked down
the computer used to place the Lover’s Lane order, and
Botvinick claimed that he was nowhere near that com-
puter, or even in the same building, at the time of the
order. Botvinick deduced that the real culprit stole his
No. 08-1966 3
credit card and used it to go on a Lover’s Lane online
spending spree. Rush apparently either accepted this
explanation or simply dropped the matter, as Rush never
took formal disciplinary action against Botvinick in
connection with this sex-toy scandal.
Near the end of his residency, Botvinick entered into an
employment contract with AAD, an association of
doctors who practice at two Florida hospitals connected
to Morton Plant Mease Health Care (“Morton”). Since
AAD doctors work at Morton, Botvinck’s employment
at AAD depended on receiving clinical privileges to
practice at Morton. In April 2005, Morton gave Botvinick
temporary privileges in connection with his new job at
AAD, and Botvinick began Morton’s application process
for permanent privileges. Among the references that
Botvinick provided to Morton’s credential committee
were Drs. David Rothenberg and Kenneth Tuman, attend-
ing physicians at Rush. Botvinick assumed that Morton,
in turn, sent Rothenberg and Tuman evaluation forms
to complete. Dr. Anthony Ivankovich, Botvinick’s super-
visor at Rush, also sent Morton a letter regarding
Botvinick’s qualifications.
After completing Rush’s residency program in June 2005,
Botvinick was set to move out to Florida for his job
with AAD. Morton’s credential committee, however,
would soon upset Botvinick’s career plans. On August 1,
Botvinick received a phone call from Dr. Bruce Fagan, the
head of AAD’s anesthesiology department, who said that
Morton had received negative evaluations on Botvinick.
The next day, Botvinick received another phone call
4 No. 08-1966
from Dr. Bernard Macik, a member of Morton’s credential
committee, who also referred to negative evaluations and
informed Botvinick that Morton was suspending his
temporary privileges. Botvinick testified that he assumed
that these negative evaluations came from Rothenberg
and Tuman, although he acknowledged that Macik did not
identify the source of the negative information.
At that point, Botvinick’s prospects for privileges at
Morton were looking grim, but Morton had not yet com-
pleted its evaluation. Dr. Richard Shea, also a member of
Morton’s credential committee, requested to speak with
Ivankovich about Botvinick. On August 15, Shea faxed
Ivankovich a “Release and Immunity” that Botvinick
signed in connection with his application to Morton. That
release extended “absolute immunity” to third parties
like Ivankovich who provided information regarding
Botvinick’s professional competence and character. Confi-
dent with the release’s assurance that Botvinick had
“agree[d] not to sue” him for statements made to
Morton, Ivankovich had a phone conversation with Shea
about Botvinick’s application. Whatever Ivankovich
said was apparently insufficient to convince Shea that
Botvinick was Morton material, for Morton soon sent
Botvinick a letter stating that it was not inclined to
grant his application for permanent privileges. Botvinick
then withdrew his application, fearing that a formal
denial would appear in a national database and perma-
nently taint his professional reputation.
On March 3, 2006, Botvinick filed a complaint in Illinois
state court against Rush, Ivankovich, Rosenberg, Tuman,
No. 08-1966 5
Nath, and Dr. Wayne Soong, another physician at Rush,
alleging that the defendants tortiously interfered with
his expectation of employment at AAD. Botvinick theo-
rized that the defendants induced Morton to deny his
application for privileges by telling Morton about his
involvement in the 2004 sex-toy scandal. After removing
the case to federal court based on diversity jurisdiction,
the defendants moved to dismiss on a number of grounds,
including the Illinois Medical Studies Act (“IMSA”). The
IMSA makes privileged any information regarding “a
health care practitioner’s professional competence” used
by a hospital credential committee “in the course of
internal quality control.” 735 ILCS 5/8-2101. According
to the defendants, the IMSA prevented Botvinick from
using any communications between Rush physicians
and Morton’s credential committee as the basis for a tort
action. The court denied the motion to dismiss but, relying
on the IMSA, entered a protective order preventing
Botvinick from discovering “the oral and/or written
communications between Drs. Ivankovich, Rothenberg,
Tuman or any other Rush physician and the Morton
Plant Mease Health Care facility’s Credentials Committee
or any of its authorized representatives.” In a motion to
clarify the protective order, Botvinick requested that the
court direct the defendants to answer all deposition
questions regarding their communications with Morton
and, after examining their responses, determine which
communications were inadmissable under the IMSA. The
court denied the motion. At a subsequent motions
hearing, the court also declined to rule in the abstract on
which particular communications between Rush and
6 No. 08-1966
Morton were privileged. Instead, the court directed the
parties to document any questionable assertions of privi-
lege made during depositions and follow up with a
motion to compel a response. Ivankovich did interpose
privilege objections during his deposition, but, perhaps
foreshadowing the beginning of the end for Botvinick,
no motion to compel followed.
After the taking of depositions, the defendants moved
for summary judgment on Botvinick’s tortious interfer-
ence claim. Accompanying the defendants’ motion were
affidavits submitted by Drs. Rothenberg, Tuman, Nath,
and Soong stating that they did not provide any written
or oral evaluations about Botvinick to Morton’s credential
committee. The district court granted the defendants’
summary judgment motion. The court reasoned that all
of the defendants except Ivankovich could not have
tortiously interfered with Botvinick’s application for
privileges because they never provided any evaluations
to Morton. Ivankovich was also entitled to summary
judgment, the court concluded, because Botvinick lacked
evidence that any information provided by Ivankovich
caused Morton to terminate Botvinick’s privileges.
Botvinick appeals.
II. Analysis
We review de novo the district court’s grant of sum-
mary judgment in favor of the defendants. Ali v. Shaw,
481 F.3d 942, 944 (7th Cir. 2007). Summary judgment is
proper if the record shows no genuine issue of material
fact on Botvinick’s claim of tortious interference with
No. 08-1966 7
a business expectancy. See id. (citing Fed. R. Civ. P. 56(c)).
Under Illinois law, the elements of that claim are “(1) [the
plaintiff’s] reasonable expectation of entering into a
valid business relationship; (2) the defendant’s knowl-
edge of the plaintiff’s expectancy; (3) purposeful inter-
ference by the defendant that prevents the plaintiff’s
legitimate expectancy from ripening into a valid business
relationship; and (4) damages to the plaintiff resulting
from such interference.” Fellhauer v. City of Geneva, 568
N.E.2d 870, 878 (Ill. 1991). To avoid summary judgment,
Botvinick must present evidence creating a triable issue
of fact on each contested element.
We conclude that Botvinick has failed to create a triable
issue on element (3) because he has no evidence that
the defendants “prevented” him from obtaining clinical
privileges at Morton. Four of the five physician defen-
dants—Drs. Rosenberg, Tuman, Nath, and Soong—swore
that they never provided evaluations about Botvinick
to Morton’s credential committee. Although Botvinick
speculated at his deposition that Rosenberg and Tuman
provided the negative evaluations referenced by Morton,
he also acknowledged that he did not know the source
of those evaluations. Botvinick has not shown that these
four defendants took “action . . . directed towards the
party with whom the plaintiff expects to do business.”
Grund v. Donegan, 700 N.E.2d 157, 161 (Ill. App. Ct. 1998);
see also OnTap Premium Quality Waters, Inc. v. Bank of N. Ill.,
N.A., 634 N.E.2d 425, 432 (Ill. App. Ct. 1994) (dismissing
a complaint of tortious interference that was “devoid of
any allegation that defendant directed any action which
purposefully caused the [third party] not to enter into a
business relationship with plaintiff”).
8 No. 08-1966
As for the fifth physician defendant, Dr. Ivankovich,
although Ivankovich spoke with Dr. Shea about Botvinick,
Botvinick has no evidence that Morton relied on this
conversation in denying his application. Indeed, we have
no idea what information Morton relied on because
Botvinick failed to take any discovery from Morton.
Without evidence of why Morton terminated his
privileges, Botvinick cannot show that the communica-
tions of any particular defendant, including Ivankovich,
influenced Morton’s decision. See Ali, 481 F.3d at 945 (7th
Cir. 2007) (“[O]nly when the actions of a third party
cause an employer to decide to fire an . . . employee, the
third party might be liable in tort.”); Bus. Sys. Eng’g, Inc. v.
IBM Corp., 520 F. Supp. 2d 1012, 1022 (N.D. Ill. 2007)
(concluding that the plaintiff lacked evidence that the
defendant’s provision of computer services to a client
interfered with the plaintiff’s consulting relationship
with the client), aff’d, 547 F.3d 882 (7th Cir. 2008);
Otterbacher v. Northwestern Univ., 838 F. Supp. 1256, 1261
(N.D. Ill. 1993) (dismissing a discharged employee’s
tortious interference claim based on the failure to allege
that the defendant influenced the decisionmaker).
Botvinick has not created a triable issue on an essential
element of his tortious interference claim, and the
district court properly granted summary judgment in
favor of the defendants.
Botvinick argues that he would have developed more
evidence in support of his tortious interference claim
were it not for the district court’s protective order, which
prevented Botvinick from discovering any communica-
tions between the defendants and Morton’s credential
No. 08-1966 9
committee. Botvinick further argues that the order
was erroneous because it relied on an overly broad inter-
pretation of the Illinois Medical Studies Act. If, as
Botvinick suspects, Ivankovich told Shea that Botvinick
was involved in the 2004 sex-toy scandal, that information
is not privileged under the IMSA because it does not
relate to Botvinick’s “professional competence.” 735 ILCS
5/8-2101.
As the defendants point out, Botvinick may have for-
feited his challenge to the breadth of the district court’s
protective order by failing to pursue available discovery
remedies. At a hearing prior to the taking of depositions,
the court instructed Botvinick to document any ques-
tionable assertions of the IMSA privilege made by the
defendants. Heeding these instructions, after Ivankovich
refused to answer Botvinick’s question about his con-
versation with Shea, Botvinick certified the question on
the record. Yet Botvinick never returned to the district
court with a motion to compel Ivankovich’s response to
whether he told Shea about the sex-toy scandal. Because
Botvinick did not bring this specific communication to
the district court’s attention, he has probably forfeited
his argument on appeal that the communication falls
outside the IMSA privilege. See United States v. Roberts,
534 F.3d 560, 571-72 (7th Cir. 2008) (finding that the
defendant forfeited a claim that the government with-
held evidence by failing to file a specific discovery
request or ask for a hearing); Zayre Corp. v. S.M. & R. Co.,
882 F.2d 1145, 1149 (7th Cir. 1989) (concluding that the
defendant forfeited its argument against the introduc-
tion of summaries of expense records by failing to move
to compel discovery of the records).
10 No. 08-1966
Assuming, however, that Botvinick has preserved his
argument that the district court’s interpretation of
the IMSA privilege was too broad, we suspect that
Botvinick’s interpretation is too narrow. True, the IMSA
privilege covers only information relating to a physician’s
“professional competence.” 735 ILCS 5/8-2101. And
involvement in the type of sexual prank that occurred
here does not as obviously undermine a physician’s
“professional competence” as does his failure to
diagnose a life-threatening condition, see Anderson v.
Rush-Copley Med. Ctr., Inc., 894 N.E.2d 827, 830 (Ill. App.
Ct. 2008), negligence in performing surgery, see Stricklin
v. Becan, 689 N.E.2d 328, 329-30 (Ill. App. Ct. 1997), or
falsification of patient records, see Tabora v. Gottlieb
Mem’l Hosp., 664 N.E.2d 267, 269, 273-74 (Ill. App. Ct.
1996). Still, a hospital has a legitimate interest in informa-
tion about a prospective doctor’s ability to conduct
himself honestly and professionally and to refrain from
offensive behavior. Interpreting the IMSA privilege to
include such information seems consistent with the
Act’s purpose of encouraging physicians to provide
“frank evaluations of their colleagues.” Anderson, 894
N.E.2d at 834.
Ultimately, this case does not require us to determine
the precise contours of the IMSA privilege. Even if we
accepted Botvinick’s argument that the district court’s
interpretation of the privilege was overly broad, we
would still conclude that Botvinick’s tortious inter-
ference claim cannot survive summary judgment. As
discussed above, Botvinick has no evidence of why
Morton terminated his privileges, mainly due to his
No. 08-1966 11
failure to take discovery from Morton on this point. So
assuming that Botvinick could show that Ivankovich
told Shea about the sex-toy scandal, he would still lack
evidence that Morton relied on that information. Notably,
some evidence in the record suggests that anything
that Ivankovich may have said about the scandal was
inconsequential to Morton’s decision. It was early
August 2005, before Ivankovich spoke with Shea, when
Dr. Macik informed Botvinick that Morton was sus-
pending his temporary privileges. Botvinick also testi-
fied that he did not recall any mention of “sex toys” during
his conversation with Macik. Granted, Morton did not
make its final decision until after Ivankovich spoke
with Shea, making it at least possible that Ivankovich
derailed Botvinick’s application by telling Shea about the
sex-toy scandal. Still, what little evidence exists suggests
that the scandal did not influence Morton’s decision, and
Botvinick has not countered with evidence suggesting
that it did. See Compania Administradora de Recuperacion v.
Titan Int’l, Inc., 533 F.3d 555, 562 (7th Cir. 2008) (To avoid
summary judgment, “a party must point to specific
evidence that creates a genuine issue of material fact
for trial.”). Botvinick has failed to create a triable issue
on an essential element of his tortious interference claim,
whether the defendants’ communications with Morton
prevented him from realizing his employment at AAD.
See Fellhauer, 568 N.E.2d at 878. Based on this failure
alone, the district court’s grant of summary judgment
in favor of the defendants can be affirmed.
We finally note that, even if Botvinick had established
the essential elements of his tortious interference claim,
12 No. 08-1966
it is doubtful that this claim would survive the numerous
other defenses raised by the defendants. The strongest
of these is the “Release and Immunity” that Botvinick
signed in connection with his application for privileges
at Morton. That release authorized third parties to
provide Morton with any information “bearing on [Botvi-
nick’s] professional qualifications, credentials, clinical
competence, character, ability to perform safely and
competently, ethics, behavior, or any other matter rea-
sonably having a bearing on [his] qualifications for
initial and continued appointment to the medical staff.”
The release further provided that Botvinick would
“extend absolute immunity to, release from any and all
liability, and agree not to sue” either third parties or
Morton for any matter relating to his application for
privileges. It is difficult to see how this broad, explicit
language does not immunize the defendants from tort
liability for anything they may have told Morton about
Botvinick.
Botvinick argues that, in signing the release, he did not
intend to immunize the defendants for giving Morton
false information about his role in the sex-toy scandal.
However, under Illinois law, if a written release is clear
and unambiguous, the court determines the parties’
intent from the plain language of the document. Hampton
v. Ford Motor Co., 561 F.3d 709, 714 (7th Cir. 2009). The
clear intent of this broad release from “any and all”
liability is to protect Rush physicians who communicated
with Morton against the type of tort suit that Botvinick
brings here. See id. at 714-15. Of course, to the extent that
Botvinick alleges that the defendants knowingly lied by
No. 08-1966 13
telling Morton that Botvinick was behind the sex-toy
scandal, a release that purported to immunize such a
deliberate falsehood might be invalid as a matter of
public policy. See Sanjuan v. Am. Bd. of Psychiatry & Neurol-
ogy, Inc., 40 F.3d 247, 252 (7th Cir. 1994) (“Illinois does not
enforce contracts exculpating persons from the conse-
quences of their wilful and wanton acts.”). But Botvinick
does not challenge the release on this ground, and, as
discussed above, his tortious interference claim fails for
other reasons. We need not decide whether the defendants
would prevail in this case based solely on the release.
III. Conclusion
The grant of summary judgment in favor of the defen-
dants is A FFIRMED.
7-24-09