STEPHENS, Judge.
This matter arises from the suspension and then revocation of the medical staff privileges of Plaintiff Sherif A. Philips, M.D., by Defendant Pitt County Memorial Hospital ("the hospital"). During 2003 and 2004, the Risk Management Department of the hospital
Charles Barrier, M.D., then chief of staff at the hospital, notified Plaintiff in writing that the request for investigation would be presented to the hospital's medical executive committee ("the executive committee") on 20 September 2004, that he had the right to be present, and of his obligations under the bylaws. The executive committee determined that the allegations in the request for investigation, if confirmed, could warrant action regarding Plaintiff's privileges, and as a result, it directed Whatley to form an ad hoc committee ("the first ad hoc committee") to investigate four issues further: (1) documentation of Plaintiff's physical examinations of four patients, (2) billing related to those four patients, (3) the consent order entered into with the NCMB, and (4) termination of Plaintiff's privileges at another hospital. Whatley appointed the first ad hoc committee, which held multiple investigatory hearings. The first ad hoc committee presented its final written report to the executive committee on 15 November 2004. Plaintiff was again given notice of his right to attend the presentation, make a statement, ask questions, and present evidence. Plaintiff met with the executive committee on 15 November 2004, after which the executive committee issued a report recommending a letter of reprimand and a six-month suspension of Plaintiff's privileges, the latter to be "suspended."
On 17 November 2004, the executive committee notified Plaintiff that it had taken action on the recommendation of the first ad hoc committee, and advised Plaintiff of his appeal rights. When Plaintiff appealed pursuant to the bylaws, a fair hearing committee was appointed, and multiple hearings were held over the next several months. Whatley and Defendant Paul Bolin, M.D., another physician with medical staff privileges at the hospital, provided testimony during the hearings. The hearing committee issued a written report recommending a corrective action (but not a suspension of Plaintiff's privileges) which was presented to the executive committee on 4 April 2005. The executive committee took action on the same date and accepted the fair hearing panel's recommendation.
Plaintiff elected not to appeal the executive committee's decision to the Board of Trustees, which under the bylaws, retained the power to make final decisions in any corrective action proceedings. However, because it declined to accept the recommendation of the executive committee, as directed by the bylaws, the Board of Trustees then referred the matter to the chief of staff, chief of staff — elect, secretary, and chairman of the Credentials Committee ("the committee of four") for a recommendation.
Subsequently, the hospital learned that Plaintiff had failed to adhere to a call schedule, one of the conditions of the renewal of his privileges. Specifically, a private investigator hired by the hospital discovered that Plaintiff was out of the county several times when he was scheduled to be on call for the hospital, and that on at least three occasions, the physician purportedly providing call coverage for Plaintiff was also outside the county. Based on this failure to comply with the conditions of renewal, another request for investigation was submitted. In addition, as provided in the bylaws,
A second ad hoc committee was appointed to investigate Plaintiff's noncompliance with the conditions of renewal. The second ad hoc committee submitted a written report and recommendation to the executive committee, which took action on the recommendation to invoke the remaining 59 days of Plaintiff's previous suspension. Plaintiff again appealed, leading to the appointment of a second hearing committee, which again held multiple hearings on the matter. The second hearing committee reported to the executive committee which took action on 19 December 2006. Plaintiff appealed to the Board of Trustees, which upheld the recommendation of the executive committee and permanently revoked Plaintiff's medical staff privileges.
Plaintiff has previously filed two lawsuits against Defendants
Plaintiff brings forward two arguments on appeal: that the trial court erred in (1) dismissing his claims for fraud and tortious interference with contract pursuant to Rule 12(b)(6), and (2) granting summary judgment for Defendants on Plaintiff's claims for breach of contract, defamation, punitive damages, and injunctive relief because there existed disputed issues of material fact. As discussed below, we affirm.
Pursuant to Rule 12(b)(6),
Burgin v. Owen, 181 N.C. App. 511, 512, 640 S.E.2d 427, 428-29 (citations and quotation marks omitted), appeal dismissed and disc. review denied, 361 N.C. 425, 647 S.E.2d 98, cert. denied, 361 N.C. 690, 652 S.E.2d 257 (2007).
In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citations and quotation marks omitted). Further,
McKeel v. Armstrong, 96 N.C. App. 401, 406-07, 386 S.E.2d 60, 63 (1989). Finally, if a trial court's grant of summary judgment can be sustained on any grounds, we must affirm it on appeal. Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989). "If the correct result has been reached, the judgment will not be disturbed even though the trial court may not have assigned the correct reason for the judgment entered." Id.
On 5 May 2010, Defendants moved for a protective order pursuant to section 131E-95(b) of the Hospital Licensure Act:
Plaintiff argues that the trial court erred in dismissing his claims for tortious interference with existing contractual relationships against all Defendants and for fraud against the hospital pursuant to Rule 12(b)(6). We disagree.
As noted supra, pursuant to section 131E-95(b), the trial court entered a protective order barring discovery of "documents reflecting the proceedings of any of [all relevant medical review] committees; records and materials produced by any of these committees; or materials considered by any of these committees[.]" Further, section 131E-95(b) specifically provides that "a person who testifies before the committee may testify in a civil action but cannot be asked about the person's testimony before the committee." Thus, Plaintiff cannot produce any evidence regarding the sole factual allegation that forms the basis for his tortious interference claim against Bolin, to wit, "[a]s a direct consequence of testimony provided by Whatley and Bolin at the Fair Hearing, findings and recommendations were made by the hearing panel, and corrective action that suspended and then terminated [Plaintiff's] medical staff privileges was taken." Because Plaintiff's "complaint discloses [a] fact that necessarily defeats the [] claim[,]" dismissal was proper. Burgin, 181 N.C.App. at 512, 640 S.E.2d at 429. Likewise, to the extent Plaintiff's tortious interference claim against Whatley is based upon Whatley's testimony before the medical review committees, dismissal of that claim was proper.
Plaintiff's tortious interference claim against Whatley is also based upon the allegation that "Whatley contacted one of [Plaintiff's] patients (Patient C) and told the patient that he should look for another physician because [Plaintiff] was not available to his patients." In their motion to dismiss, Defendants asserted the three-year statute of limitations on tort actions in this State as a defense. See N.C. Gen.Stat. § 1-52(1) (2011). "Once a defendant raises a statute of limitations defense, the burden of showing that the action was instituted within the prescribed period is on the plaintiff." Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 136, 472 S.E.2d 778, 780 (1996) (citation omitted).
The record on appeal reveals an affidavit by Vivian Weston, the wife of one of Plaintiff's dialysis patients, stating that Whatley called her "[i]n or around April 2005" and suggested she find her husband another doctor because Plaintiff had "a problem" at the hospital.
Plaintiff's tortious interference claims against the hospital are based upon allegations that the hospital (1) "initiated an investigation of [Plaintiff], which resulted in subsequent corrective action that suspended and then terminated" Plaintiff's medical staff privileges, and that the hospital (2) "was not justified in taking [the] corrective action[.]" In addition, Plaintiff alleges that the hospital's conduct "was intended to induce patients not to continue seeking medical care... from [Plaintiff] and ... to deprive [Plaintiff] of his ability to provide medical care ... to his patients."
"When the right of a party is once violated, even in ever so small a degree, the injury ... at once springs into existence and the cause of action is complete." Stewart v. Se. Reg'l Med. Ctr., 142 N.C. App. 456, 461, 543 S.E.2d 517, 520 (2001) (citation and quotation marks omitted). As noted, supra, Plaintiff did not assert these claims until August 2009. Accordingly, to the extent that Plaintiff's claim against the hospital is based on the initiation of the investigation in September 2004, it is barred by the statute of limitations. N.C. Gen.Stat. § 1-52.
As to any claim based on the allegation that the corrective actions taken by the hospital (through its Board of Trustees) was not justified, Plaintiff cannot forecast any evidence to support that claim. The elements of tortious interference with contract are:
United Lab., Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988) (citation omitted). The Board of Trustees' decisions regarding corrective action were based upon the findings and recommendations of the medical review committees, the proceedings and records of which are privileged by the protective order as discussed supra. Without the ability to discover those materials or present them at trial, Plaintiff cannot show that any recommendations produced by the medical review committees were unjustified, and without being able to show fault in those recommendations, Plaintiff cannot show that the Board of Trustees acted without justification in relying upon those recommendations in suspending and then terminating his medical staff privileges. Accordingly, this argument is overruled, and the trial court's dismissal of Plaintiff's tortious interference with contract claims is affirmed.
Plaintiff also contends that the trial court erred in dismissing his claim for fraud against the hospital. In his complaint, Plaintiff asserted that the hospital "upcoded" the records of two of Plaintiff's patients, such that they were charged for treatments and procedures which were not actually performed. According to Plaintiff's complaint, these upcodings later served as a material part of the allegations against him for making false entries in patient medical records during the medical review process. However, in his deposition, Plaintiff stated that these instances of upcoding occurred in 2004 and earlier, more than three years prior to the filing of his complaint in August 2009. In
Plaintiff contends that any claims dismissed as violating the statute of limitations are saved by the exhaustion of administrative remedies doctrine. Plaintiff asserts that the statute of limitations was tolled under the doctrine until the final decision to terminate Plaintiff's medical staff privileges was made by the Board of Trustees on or about 29 December 2006. We are not persuaded.
Under the doctrine, "[w]hen an effective administrative remedy exists, that remedy is exclusive. However, when the relief sought differs from the statutory remedy provided, the administrative remedy will not bar a claimant from pursuing an adequate remedy in civil court." Johnson v. First Union Corp., 128 N.C. App. 450, 456, 496 S.E.2d 1, 5 (1998) (citation and quotation marks omitted). Specifically, the doctrine does not apply where a plaintiff seeks damages and the administrative remedies are non-monetary in nature. White v. Trew, ___ N.C.App. ___, ___, 720 S.E.2d 713, 719 (2011).
Here, Plaintiff sought monetary damages for his claims of tortious interference with contract and fraud. However, the hospital's bylaws, which govern the administrative review and appeals process at issue, do not provide for monetary damages. Accordingly, the doctrine of the exhaustion of administrative remedies is inapplicable.
Plaintiff also argues that the trial court erred in granting summary judgment to Defendants on Plaintiff's claims for breach of contract against the hospital; defamation against Whatley, Bolin, and the hospital; injunctive relief against the hospital; and punitive damages against Whatley, Bolin, and the hospital.
Plaintiff contends the hospital breached its contract with him by failing to comply with the bylaws in conducting the medical review of his medical staff privileges. After careful review, we reject Plaintiff's arguments.
Lohrmann v. Iredell Mem'l Hosp., Inc., 174 N.C. App. 63, 77, 620 S.E.2d 258, 266 (2005) (citations and quotation marks omitted), disc. review denied, 360 N.C. 364, 629 S.E.2d 853 (2006). Accordingly, summary judgment is proper where a hospital substantially complies with its bylaws in conducting a medical review process which leads to corrective action against a physician. Id. at 73, 620 S.E.2d at 263. Our review indicates that the hospital substantially complied with its bylaws in conducting the investigation of and applying a corrective action to Plaintiff.
Plaintiff asserts breach in that, as part of its investigations, the hospital allowed nurses to shadow him and report back to the medical review committees, hired a private investigator to report on Plaintiff's whereabouts during scheduled on-call periods, and did not interview certain patients or their spouses. Our review of the bylaws reveals no provisions relating to any of these assertions. Plaintiff also asserts that the hospital unilaterally cut short his term of appointment, so as to cause him to come up for renewal of privileges in 2005 rather than 2006. However, the evidence in the record is undisputed that the hospital reappointed all physicians in 2001, and then subjected all physicians (including Plaintiff) to the reappointment process every two years thereafter, including in 2003. Accordingly, Plaintiff, along with every other physician on the hospital's medical staff, was due for biennial renewal of privileges in 2005.
Plaintiff contends that the hospital prevented him from appealing when it notified him that a decision on his reappointment could be delayed if he appealed the executive committee's decision. However, a letter dated 16 May 2005 from Plaintiff's then-counsel to the hospital's counsel thanks the hospital for "its insights concerning" possible scheduling conflicts between the committee meetings for the appeal and the reappointment process, and notifies the hospital that Plaintiff has elected not to appeal. Nothing in the record suggests that the hospital attempted to prevent Plaintiff from pursuing an appeal, and nothing in the bylaws requires any different appeal process in the event that proceedings related to a corrective action coincidentally fall at the same time a physician is up for renewal of privileges.
Plaintiff also asserts breach in the Board of Trustees' decision to impose a harsher sanction than that recommended by the first fair hearing panel and accepted by the first medical review committee. However, nothing in the bylaws requires the Board of Trustees to accept such recommendations, and the bylaws explicitly give the Board of Trustees the final decision-making power in corrective actions.
Plaintiff next asserts breach by the hospital in its imposition of a 90-day suspension of his medical staff privileges with a 31-day active suspension and its later invocation of the remaining 59 days of suspension. Plaintiff also explicitly asserts that the 22 June 2005 reappointment letter containing conditions for renewal of his privileges formed a binding contract with the hospital. However, among the conditions Plaintiff explicitly agreed to were imposition of a 90-day suspension of his medical staff privileges with a 31-day active suspension and the right to invoke the remaining 59 days of suspension if Plaintiff failed to comply with the conditions of renewal. Accordingly, imposition of these two terms of the contract is not a breach. In addition, Plaintiff is estopped from challenging terms of the contract. See B & F Slosman v. Sonopress, Inc., 148 N.C. App. 81, 88, 557 S.E.2d 176, 181 (2001) (holding that the theory of quasi-estoppel prevents a party from accepting benefits from a contract while simultaneously denying the effect of other terms of the same agreement).
Finally, section 131E-95 provides that "[a] member of a duly appointed medical review committee who acts without malice or fraud shall not be subject to liability for damages in any civil action on account of any act, statement or proceeding undertaken, made, or performed within the scope of the functions of the committee." N.C. Gen.Stat. § 131E-95(a) (emphasis added). In determining whether a plaintiff has adequately alleged malice or fraud under the statute, this Court has noted:
McKeel, 96 N.C.App. at 406, 386 S.E.2d at 63. In McKeel, the plaintiff alleged malice and fraud by a hospital and others, alleging that a medical review process had been unfair and that his economic competitors had been allowed to serve on the medical review committee. Id. at 407-08, 386 S.E.2d at 63-64. In affirming summary judgment for all defendants, we noted that
Id. at 408, 386 S.E.2d at 64.
Similarly, Plaintiff's contentions of malice and fraud are largely based on allegations that Whatley, Bolin, and other medical staff who served on or testified to the various committees were economic competitors and/or biased against him. However, Plaintiff presents no evidence that any person was motivated by malicious intent. Further, many of the purported actions or omissions of Whatley, Bolin, and others concern their participation with the committees involved in the investigations of and corrective actions against Plaintiff. As such, under the terms of the protective order, Plaintiff cannot discover or present evidence as to any of these allegations. Thus, Plaintiff cannot meet his "responsibility to come forward with facts, as distinguished from allegations, sufficient to indicate that he will be able to sustain his claim[s] at trial." Id. at 407, 386 S.E.2d at 63.
Plaintiff also alleged defamation by Bolin and Whatley in their testimony before the committees and by Whatley in a statement made to one of Plaintiff's patients. "To be actionable, a defamatory statement must be false and must be communicated to a person or persons other than the person defamed." Andrews v. Elliot, 109 N.C. App. 271, 274, 426 S.E.2d 430, 432 (1993). In addition, "[t]o escape the bar of the statute of limitations, an action for libel or slander must be commenced within one year from the time the action accrues, ... and the action accrues at the date of the publication of the defamatory words, regardless of the [date of discovery by the plaintiff]." Gibson v. Mut. Life Ins. Co. of N.Y., 121 N.C. App. 284, 287, 465 S.E.2d 56, 58 (1996) (citations and quotation marks omitted).
As noted supra, any testimony by Bolin and Whatley before the medical review committees is privileged and covered by the trial court's protective order. See N.C. Gen.Stat. § 131E-95(b) ("[A] person who testifies before the committee may testify in a civil action but cannot be asked about the person's testimony before the committee."). Without the ability to introduce the allegedly defamatory statements at trial, Plaintiff patently cannot "sustain his claim[s] at trial." McKeel, 96 N.C.App. at 407, 386 S.E.2d at 63.
Plaintiff also alleged a single incident of defamation outside the proceedings of the medical review committees, to wit, the allegedly defamatory statement by Whatley to Patient C in April 2005. Plaintiff contends that he did not discover this alleged tort until at least 8 May 2006 and notes this defamation claim was first asserted in his second federal lawsuit in March 2007. Plaintiff cites no authority for his assertion that "[d]efamation claims against individuals are not barred by the one [-] year statute of limitations for defamation [N.C. Gen.Stat. § 1-54(3),]" and
Plaintiff's assertion that his claim is saved by the doctrine of the exhaustion of administrative remedies is likewise unavailing, as the appeals process provided for in the bylaws concerned Plaintiff's medical staff privileges, and the alleged statement was not part of that process. Further, Plaintiff's invocation of the doctrine also fails in that Plaintiff sought monetary damages from Whatley for the purported defamation, a remedy not available under the bylaws. See Johnson, 128 N.C.App. at 456, 496 S.E.2d at 5 ("[W]hen the relief sought differs from the statutory remedy provided, the administrative remedy will not bar a claimant from pursuing an adequate remedy in civil court."). In addition, we reject Plaintiff's assertion that this claim is saved by the "continuing wrong doctrine," as that doctrine applies only where the unlawful acts continue, not where, as here, there are purported continual bad effects arising from a single, discrete act alleged to have been unlawful. See, e.g., Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170, 179, 581 S.E.2d 415, 423 (2003). Accordingly, the court did not err in granting summary judgment to Bolin and Whatley on Plaintiff's defamation claims.
Plaintiff's defamation claim against the hospital is based on his allegation that the hospital's reports regarding suspension of his medical staff privileges to the NPDB and the NCMB were false. Because Plaintiff cannot forecast evidence to prevail on this claim, the trial court's grant of summary judgment was proper.
Under HCQIA, the hospital was required to report to the NPDB any professional review action adversely affecting the medical staff privileges of a physician for more than 30 days. 42 U.S.C. § 11133(a)(1)(A) (2011). The information reported includes the name of the physician, the action taken, and the reasons for the action. Id. § 11133(a)(3). A hospital complying with this requirement cannot be "held liable in any civil action with respect to any report made under [42 U.S.C. §§ 11131 et seq.] ... without knowledge of the falsity of the information contained in the report." Id. § 11137(c) (2011). In addition, under N.C. Gen.Stat. § 90-14.13(a)(2) (2011), hospitals must report any suspension or revocation of medical staff privileges to the NCMB.
Here, Plaintiff does not argue that the reports were false in stating that he was suspended for more than 30 days or that the reports incorrectly stated the basis for his suspension as determined during the corrective action process. Rather, he alleges that he demonstrated "during the peer review proceedings" that various allegations against him which led to the eventual corrective actions were false. As discussed supra, Plaintiff is barred from presenting any evidence of the proceedings or evidence before the medical review committees, and as such, he cannot establish the falsity of the decision of the committees. See Andrews, 109 N.C.App. at 274, 426 S.E.2d at 432. Accordingly, the trial court did not err in granting summary judgment to the hospital on this claim.
In light of our affirmance of the court's grant of summary judgment to Defendants on Plaintiff's claims for breach of contract and defamation, we likewise affirm summary judgment on Plaintiff's request for injunctive relief and punitive damages.
AFFIRMED.
Judges BRYANT and THIGPEN concur.
