United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, District Judge.
This is an action by Dr. Raymond Winger against his former employer, Meade District Hospital, under 42 U.S.C. § 1983, alleging that the Hospital deprived him of due process when it terminated his employment. The Hospital has moved for summary judgment, arguing that Dr. Winger received explicitly limited "temporary privileges" at the hospital, that he was properly terminated following reports of deviations from the standard of care, and that he did not have a right to any particular procedural rights under the terms of the Employment Agreement and Hospital Bylaws. For the reasons provided herein, the court grants the motion.
Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).
In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita ). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
Findings of Fact
The Hospital hired Winger on May 6, 2013, under a Physician Employment Agreement. Under the Agreement, Winger agreed to
maintain, throughout the term of this Agreement, status as a member of the Active Medical Staff of the Hospital in accordance with the bylaws, rules, regulations and protocols of the Hospital and its Medical Staff. Failure to maintain membership as an Active Medical Staff shall constitute a breach of this Agreement by the Physician. While a member, the Physician shall comply with all provisions of the Medical Staff Bylaws, as well as any other Hospital bylaws, rules, regulations and protocols and shall participate in the quality assessment review, utilization reviews, and risk management functions in the Hospital.
The Agreement could be terminated for "failure of the Physician to practice his profession at a standard that is consistent with the standards of care required of physicians in the community." In addition, the Agreement could be terminated through "default by the Physician in the performance of any term, condition, provision or requirement of this Agreement." In his deposition, Winger explicitly acknowledged that, when he was hired, he was given "temporary privileges based on [the Hospital's CEO's] own personal power."
The plaintiff's Response to the Motion for Summary Judgment attempts to minimize this admission by citing a subsequent passage in his deposition, wherein Winger asserts he was appointed "on a provisional basis" under Section F of the Bylaws.
But Winger's earlier testimony, and the documentary evidence, is not ambiguous. Winger agreed he could only receive temporary privileges because the necessary "particular paperwork... to be done by another institution" had not been completed "because they didn't have the personnel to do that at Meade." Thus, the Hospital's CEO "said that he was granting me temporary privileges based on his own personal power." As a result, given the absence of necessary approval by the Medical Staff Committee, Winger was "operating under those temporary privileges" authorized by the CEO's "own personal power." Winger admits that the CEO did not tell him he would be brought on in a provisional status for a period of time, and later become an active physician with full privileges.
The passage of the Bylaws cited by Winger recognizes a limited, provisional status for physicians given initial privileges, but otherwise does nothing to no modify the explicit May 9, 2013, " TEMPORARY PRIVILEGES" agreement (emphasis in original), signed by the CEO and Hospital Chief of Staff, stating that "[w]e hereby grant a temporary privilege to Raymond Winger, MD. This privilege shall endure until the Medical Staff Credentialing Committee can act upon the initial application."
In further response, the plaintiff stresses that Section G of the Employment Agreement indicates that the was "a member of the active staff at the hospital." (Dkt. 26, at 3). This portion of the Agreement provides that "[t]he Physician will maintain, throughout the term of this Agreement, status as a member of the Active Medical Staff of the Hospital in accordance with the bylaws, rules, regulations and protocols of the Hospital and its Medical Staff." But this provision does not somehow negate the explicit recognition in the By-Laws of some staff members as "temporary" staff without due process rights, and the equally explicit designation of Winger as precisely such a "temporary" staff member. Read in full and in context, the Employment Agreement and Hospital Bylaws provide that "provisional" status, with attendant due process rights, takes effect only after an application has been approved by the Medical Staff Committee; it is uncontroverted that the Committee never approved Winger's application. As Winger testified, he knew during this time that he "would be operating under those temporary privileges."
Article III, Paragraph P of the By-Laws expressly provide that the CEO "may, at any time, upon the recommendation of the Chief of Staff, terminate an applicant's or Staff Member's temporary privileges without hearing or appeal." And Article VI, Paragraph D provides:
Temporary clinical privileges are those privileges granted on a case-by-case basis when there is an important patient care need that warrants an immediate authorization to practice for a limited period of time while the full credentials information is being approved. Temporary privileges may be granted by the CEO with recommendations from the Chief of Staff and only after appropriate license, adequate liability coverage and clinical competence has been established along with the National Practitioner Data Bank having been queried... The CEO or Governing Board Chairman may terminate temporary privileges at any time without eligibility for the procedural rights outlined in Article VIII.
Because his appointment was expressly "interim" or "temporary, " Winger was not entitled to the panoply of due process rights which existed for physicians who did not fall into these categories.
It is uncontroverted that several members of the nursing staff reported that Winger's June 9, 2013 treatment of two patients was substandard. The Hospital's Risk Management Committee called a special meeting the following day and decided to have the treatments reviewed by a third-party peer review organization, Docs Who Care (DWC).
On June 15, 2013, DWC reported to the Hospital a level 2 deviation from the standard of care with one patient, and a level 3 deviation from the ...