R. BROOKE JACKSON, District Judge.
This matter comes before the Court on defendants' motion for summary judgment [docket # 52]. In addition to considering the parties initial briefs, the Court heard oral argument and has permitted, received and considered supplemental briefs following argument.
Ron Genova, M.D. is an emergency medicine specialist. At times relevant to this lawsuit he was part of an emergency department practice group known as the North Colorado Emergency Physicians, P.C. ("NCEP"). NCEP contracted with defendant Banner Health ("Banner"), which does business as the North Colorado Medical Center ("the hospital") to serve as the sole emergency medicine physicians in the hospital's emergency department.
This lawsuit arises out of an incident that began on the night of January 21, 2010. Dr. Genova was an on-duty emergency room physician at the hospital that evening. He alleges that at approximately 10:30 p.m. he was informed by an administrative representative and a charge nurse that the hospital was facing a potentially serious overcrowding situation. Amended Complaint [# 23] at ¶ 41. The administrative representative indicated that all in-patient hospital beds and emergency department beds were full. Id. ¶ 42. The nurse indicated that there were four ambulances out on calls, and that the hospital and emergency department had no physical capacity to take another patient. Id. The nurse recommended that emergency department be place on "divert." Id. ¶ 45. This means that ambulances would be diverted to other hospitals.
Dr. Genova recommended that the administrative representative implement the hospital's plan named "Code Purple." Id. ¶ 46. This plan was designed to "maintain patient safety when the hospital population is at a critical level, and "[t]o provide a mechanism that will decompress patient volume...." Code Purple [# 55-4] at 1. Dr. Genova alleges that the administrative representative agreed this would be appropriate but refused to implement the plan because she believed that Banner's Chief Executive Officer, defendant Rick Sutton, would not divert ambulances. Amended Complaint ¶ 47. Dr. Genova then called Mr. Sutton and recommended that the plan be implemented. He alleges that Mr. Sutton ignored his concerns. Id. ¶ 50.
There is no dispute that the hospital was busy that night. However, the parties do dispute the nature of the phone conversation between Dr. Genova and Mr. Sutton, and they also dispute whether "Code Purple" was necessary. Mr. Sutton claims that Dr. Genova was frustrated and angry, and that he threatened to take actions that would jeopardize patient safety. He claims that Dr. Genova said that "we are going to go out. We're going to go on EMS divert. We're going to go tell people in the waiting room they need to go home. We are going to turn the lights off, lock the doors. We are going to close this down because we need to be on divert. I'm the captain of the ship." Sutton Depo. [# 52-3] at 45. Defendants also claim that Mr. Sutton called Dr. Campain, the medical director of NCEP, to assess the situation that night. Dr. Campain called another emergency department physician who was at the hospital, Dr. Hutchison, to find out what was happening. Dr. Hutchison replied, "[y]ou know, we're busy, but we're getting through it." Hutchison Depo. [#52-6] at 192. Dr. Campain told Mr. Sutton that neither ambulance divert nor ambulance advisory
Dr. Genova alleges that as a result of Dr. Genova's expressions of concern and recommendations to Mr. Sutton that evening, Banner forced NCEP to forbid him from taking any further emergency room shifts in the hospital. This effectively deprived him of his sole source of income. Id. ¶ 76. Dr. Genova filed this lawsuit, asserting three claims: (1) breach by Banner of its contract with NCEP; (2) tortious interference by both defendants with Dr. Genova's contract with NCEP; and (3) violation by both defendants of the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd.
The Court may grant summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party must "designate specific facts showing that there is a genuine issue for trial." Id. at 324, 106 S.Ct. 2548. A fact is material "if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The Court will examine the factual record and make reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Concrete Works of Colorado, Inc. v. City and County of Denver, 36 F.3d 1513, 1517 (10th Cir.1994).
Banner argues that it had no contract with Dr. Genova. Plaintiff responds that he can assert breach of the contract between Banner and NCEP because (1) NCEP acted as his agent; (2) his contract with NCEP makes him a party to the contract; and (3) he is a third party beneficiary of the Banner-NCEP contract. The Court need not address the first or second theory.
NCEP is a group of emergency room physicians who, like Dr. Genova, are either employed or retained by the group. Banner-NCEP contract [#52-2] at 14, ¶ 3.1. The group fulfills its obligations under the contract solely through the services of the "group physicians" and allied health professionals, collectively known as the "group practitioners." Id. In return, Banner's obligations are to the group. In the contract's recitals Banner expresses its desire to provide the group an exclusive arrangement. Id. This is intended to help the group realize economies resulting from Banner's general administrative expertise and to relieve the group from nonmedical demands place upon professional time. Id. The beneficiaries of the economies and saving of professional time are the group practitioners. Banner promises that the Group will receive compensation consistent with the fair market value of the services provided. Id. at 19, ¶ 5.6. The recipients of compensation are the group practitioners.
An individual may enforce a contractual obligation made for his benefit even though he was not a party to the contract if the obligation is "apparent from express provisions of the contract or some equivalent terms showing such obligation."
However, one must take the bad with the good. Paragraph 3.2 of the contract, headed "Qualifications of the Group Practitioners," provides among other things:
Id. at 15-16.
On February 4, 2010, CEO Sutton delivered a letter to NCEP's medical director, Dr. Campain, and NCEP's assistant medical director, Dr. Hutchison, invoking section 3.2 of the contract and requesting that the group immediately remove Dr. Genova from all duties at the hospital. [#52-15]. The letter expressed Banner's opinion that Dr. Genova had failed to meet the requirements of sections (k) and (m) of section 3.2 by (1) insisting on January 22, 2010 that the hospital be placed on divert status and that people in the waiting room be sent home if they were not seriously ill, notwithstanding that, according to Dr. Campain, the issues at the hospital were being addressed; (2) refusing to transfer patients to the McKee Medical Center (another Banner facility) on December 18, 2009 when the hospital was full, after which another physician agreed to transfer the patients; and (3) refusing to transfer patients to the McKee Medical Center on another occasion on grounds that the required paperwork took too much of his time. Id. The letter concluded that this conduct was unprofessional and inconsistent with the interests, reputation and goodwill of the hospital. Id.
Whether Dr. Genova's alleged conduct was unprofessional, and specifically, whether the three incidents or any of them were fairly and accurately portrayed, certainly would be matters of genuine factual dispute. However, such disputes are not material. Paragraph 3.2(m) of the contract effectively gives Banner carte blanche to request the removal of a physician whenever Banner determines that the physician has conducted himself in a manner that is contrary to Banner's interests.
During oral argument counsel for Dr. Genova did not dispute that the contract grants Banner broad authority to request that a physician be removed, with or without cause. Rather, plaintiff suggests that this provision should be declared void as
During the June 29, 2012 the Court questioned counsel about a different concept. Under Colorado law, "every contract contains an implied covenant of good faith and fair dealing." Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo.1995). The duty to act in good faith arises when the contract grants a party discretionary authority. The party may not exercise its discretion in a manner that defeats the reasonable expectations of the other party. Id. The implied covenant exists even when a contract states that there are no implied covenants. Id. at 499. Even where the plaintiff has not asserted an independent cause of action for breach of the implied covenant of good faith and fair dealing, the assertion of a breach of the contract and facts that could show a breach of the implied covenant states a claim. See Denny Const., Inc. v. City and County of Denver, 170 P.3d 733 (Colo.App.2007), rev'd on other grounds, 199 P.3d 742 (Colo.2009).
The Court is willing to assume that plaintiff's complaint implicitly, though certainly not expressly, asserts a breach of the implied covenant, i.e., that Banner could not exercise its discretion under section 3.2 of the contract in a manner that defeats Dr. Genova's reasonable expectations. For example, it might be that his reasonable expectation is that if he was at all times a competent emergency room physician (which is not disputed) and complied with all applicable professional standards (which is not disputed), then he could continue to practice at the hospital with the rest of the group absent some form of misconduct that in fact compromised the best interest of the hospital or its patients. As such, the claim would present genuinely disputed issues of material fact that would not be appropriate for summary disposition.
The problem is that even this construction of Dr. Genova's claim runs headfirst into the terms of another agreement. The Banner-NCEP contract [# 52-2] required that each group physician execute a "Joinder Agreement" in the form attached thereto as Exhibit F-1. Id. at 16, ¶ 3.3(a). Dr. Genova did execute a Joinder Agreement in the required form. [# 52-4]. Banner is expressly made a beneficiary of the Joinder Agreement. Id. ¶ 3.
The Joinder Agreement, subtitled "Release and Waiver," expressly required Dr. Genova to certify, "I currently meet, and that I shall continue to meet in the future, all of the applicable requirements set forth in Section 3.2 of the Agreement." Id. ¶ 1. It continues:
Id. ¶ 2.
In short, this is a very broad waiver of Dr. Genova's right to sue Banner for breach of the Banner-NCEP contract. The parties to the Joinder Agreement anticipated the possibility that his services could be discontinued at the hospital and provided that this would be deemed have been his resignation from the medical staff. He specifically released Banner and CEO Sutton from any claim connected with the termination of his medical staff membership.
Plaintiff argues that the waiver should not preclude his claim, because he did not lose his privileges at the hospital; he is still a member of the NCEP group; he has not received any medical or disciplinary action; and, in any event, the Joinder Agreement is void as a matter of public policy. Supplemental brief [# 76] at 3-4. The fact that his clinical privileges were not revoked (for his benefit, according to the defendants) does not detract from the fact that his services at the hospital were discontinued, that he was deemed (again, for his benefit, according to the defendants) to have resigned from the medical staff; and that his medical staff membership was terminated. He waived and released claims connected with that termination. The facts of his continued membership of the NCEP group and the absence of any disciplinary actions have no bearing on the enforceability of the waiver in the Joinder agreement.
Regarding public policy, Dr. Genova argues that his services were discontinued for "making recommendations he was required to make." Id. at 4. He analogizes this situation to cases holding that it is a violation of public policy to terminate an at will employee for refusing to perform an illegal act or for performing a public duty or exercising an important job-related right or privilege. See, e.g., Coors Brewing Co. v. Floyd, 978 P.2d 663, 666-67 (Colo.1999); Bonidy v. Vail Valley Ctr., P.C., 232 P.3d 277, 281 (Colo.App.2010). Although this is not an employment case as such, I am willing to assume that Banner could not require the group to remove Dr. Genova from the list for refusing to perform an illegal act or for performing an important public duty, and that if he was terminated on that basis, the waiver would be void as well.
However, plaintiff has presented no evidence that he was "terminated" for those reasons. I accept the fact that Dr. Genova believes that he had an obligation to patients to recommend that the hospital invoke the Code Purple plan on January 22, 2010. I will presume that he had reasonable grounds for making that recommendation. However, he has come forward with no evidence that Banner's demand that he be excluded from continuing to practice in its emergency department was motivated by his having refused to perform
Rather, the evidence in the record is that Banner's decision was motivated by Mr. Sutton's negative reaction to the manner in which Dr. Genova made his recommendation; the opinions of two other NCEP doctors that the hospital was keeping up with the demand; and Dr. Genova's refusal on other occasions to transfer patients to an affiliated hospital. Those reasons may or may not be good ones. However, to void a contract, including the waiver provision in the Joinder Agreement, that was entered into between sophisticated parties represented by counsel on public policy grounds, the jury would have to find, based upon direct or circumstantial evidence, that Banner effectively discharged Dr. Genova because he exercised his right as a physician to request that the Code Purple policy be invoked. I conclude that even construing the evidence in plaintiff's favor for summary judgment purposes, he has not shown that there is a genuine dispute of fact requiring a trial.
Therefore, the Court grants the motion and dismisses the claim based upon breach of the Banner-NECP contract. This is not necessarily a result that the Court likes. I recognize that he is a fine physician, that he was arguably poorly treated, and that he and his lawyer have put a great deal of time and effort into this lawsuit. I have at least tried to write this order in a way that explains to him why I have come to the conclusions I have. Essentially, a contract is a contract.
The elements of the tort of intentional interference with contractual obligations under Colorado law are that the defendant (1) is aware of a contract between the plaintiff and a third party, (2) intends that the third party breach the contract, and (3) induces the third party to breach of to make it impossible for the plaintiff to perform the contract. Krystkowiak v. W.O. Brisben Companies, Inc., 90 P.3d 859, 871 (Colo.2004). See Lutfi v. Brighton Community Hospital Association, 40 P.3d 51, 58 (Colo.App.2001); Comtrol, Inc. v. Mountain States Telephone and Telegraph Co., 32 Colo.App. 384, 513 P.2d 1082 (1973). Dr. Genova alleges that defendants "intentionally interfered with Plaintiff's agreement with his practice group by forcing Plaintiff's practice group to prohibit Plaintiff from providing any further emergency room services at NCMC (the hospital) or face termination of the group's entire agreement to provide services to NCMC. Amended Complaint [# 23] ¶ 97.
This claim fails for two reasons. First, plaintiff has not alleged, and certainly has not produced evidence showing, that NCEP was even in breach of any contractual obligation to him. NCEP had certain obligations to Dr. Genova under the terms of a Shareholder Employment Agreement. [#52-1]. Among other things, NCEP agreed to pay him $110 an hour for daytime hours and $125 an hour for evening hours for service provided to patients treated at the North Colorado Medical Center pursuant to NCEPs contract with Banner. Id. ¶ 4.1.1. There is no evidence that NCEP did not comply with that obligation or other obligations under this contract or under the Joinder Agreement between Dr. Genova and NCEP.
Second, as discussed above, by executing the Joinder Agreement Dr. Genova waived and released Banner and CEO Sutton from any claim connected with the termination of his medical staff membership.
Accordingly, the Court grants the motion and dismisses the Second Claim for Relief.
The Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd, was enacted to address the problem of "dumping" patients without health insurance who need medical care. Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 796 (10th Cir.2001). EMTALA requires participating hospitals, such as Banner, (1) to conduct an initial medical examination to determine if an emergency medical condition exists, and (2) if an emergency medical condition exists, to stabilize the patient before transporting him or her elsewhere. Id. "Congress enacted EMTALA in 1996, in the face of the increasing number of reports that hospital emergency rooms are refusing to accept or treat patients with emergency conditions if the patient does not have medical insurance." Reynolds v. MaineGeneral Health, 218 F.3d 78, 83 (1st Cir.2000) (internal quotations omitted). "Its core purpose is to get patients into the system who might otherwise go untreated and be left without a remedy because traditional medical malpractice law affords no claim for failure to treat." St. Anthony Hosp. v. U.S. Dept. of Health, 309 F.3d 680, 694 (10th Cir.2002) (quoting Bryan v. Rectors & Visitors, 95 F.3d 349, 351 (4th Cir.1996)).
The EMTALA contains two sections providing a private right of action to individuals: (1) a civil enforcement provision for "[a]ny individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of this section...." 42 U.S.C. § 1395dd(d)(2)(A); and (2) a whistleblower provision for physicians or hospital employees:
42 U.S.C. § 1395dd(i). Plaintiff's claim appears to be pursuant to this whistleblower provision, as he alleges that defendants retaliated against him for "disclosing, objecting to and/or refusing to participate in an activity, policy or practice which Plaintiff reasonably believed was in violation of the [EMTALA]." [# 23] ¶ 106. However, much of plaintiff's briefing and other portions of his complaint appear to encompass a larger argument.
If the Court correctly understands the factual allegations that Dr. Genova believes support an EMTALA claim, then included that Banner created dangerous conditions in its hospital by understaffing; Dr. Genova had complained about these conditions and inadequate patient care in the past; Dr. Genova complained about Banner's failure to follow its own internal policies; the emergency department physicians were frustrated with Banner and Mr. Sutton; the hospital was extremely busy the night in question; Dr. Genova felt that implementation of Code Purple and the diversion of ambulances, or at least advisory status, was necessary; Mr. Sutton refused because he did not want to lose the business; and as a result of Dr. Genova's attempts to divert ambulances and initiate the Code Purple plan, Mr. Sutton retaliated against him by removing him from future shifts. He appears to argue that those facts support two different EMTALA claims, one specific to the night in question, and the other a more general allegation that defendants retaliated against him as a cumulative result of his refusal to cooperate with practices he thought would violate the EMTALA.
No evidence has been presented, indeed no allegation has been made, that Banner, its emergency department, or any person employed by Banner, has ever refused to conduct an initial medical examination of any person appearing at the hospital to determine if an emergency medical condition exists. Likewise, there is no allegation or evidence that any person has not been stabilized before being transported to another hospital. There is no allegation that any adverse action was ever taken against Dr. Genova because he refused to authorize the transfer of an individual with an emergency medical condition who had not been stabilized. There is no allegation that any adverse action was ever taken against Dr. Genova because he reported a violation of the requirement that a patient receive an initial medical examination and, if appropriate, be stabilized before being transferred. In short, conduct that would violate the EMTALA and would support a cause of action has not been alleged in this case.
On the contrary, this case concerns two types of alleged misconduct: (1) the hospital's refusal to divert prospective patients on January 22, 2010; and (2) Dr. Genova's refusal to cooperate in the transfer of patients from this hospital to another Banner hospital on prior occasions. The refusal to divert (or go to advisory status) is the opposite of dumping patients. Penalizing Dr. Genova for refusing to transfer patients to the McKee Medical Center, or to any other hospital, could support an EMTALA claim if he refused because the patient had not been properly screened and stabilized. However, that is not what has been alleged in this case.
Plaintiff repeatedly argues that Banner failed to follow its own practices and procedures. Courts do consider whether a hospital adhered to its own procedures in considering a claim under the EMTALA. See, e.g., Repp v. Anadarko Municipal Hospital, 43 F.3d 519, 522-23 (10th Cir. 1994) (hospital provided "appropriate medical screening" within the meaning of EMTALA, 42 U.S.C. § 1395dd(a), when it followed its own screening procedures before discharging a patient); Parker v. Salina Regional Health Center, Inc., 463 F.Supp.2d 1263, 1269 (D.Kan.2006) (a court's duty in an EMTALA case is to determine whether the hospital adhered to its own screening procedures). The importance of those cases here, however, is that they emphasize that EMTALA concerns whether a hospital has appropriate procedures for screening individuals who appear at the hospital. That is not what the present case is about. EMTALA does not create a general cause of action for violation of any hospital procedure or for violating standard medical procedures. It is not a federal malpractice or negligence statute. Parker, 463 F.Supp.2d at 1267.
Plaintiff has sporadically cited regulations pertaining to hospitals that participate in Medicare and Medicaid, seemingly arguing that a hospital's failure to implement a particular regulation constitutes an EMTALA violation that Dr. Genova can enforce. See Response [# 55] at 3, 5, 35; Supplement [# 76] at 2-3. I mention this only to assure him that I have tried to determine whether any federal regulation creates a cause of action that is not apparent
