Blake Putman Md v. Hills and Dales General Hospital ( 2024 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
BLAKE PUTMAN, M.D., UNPUBLISHED
August 15, 2024
Plaintiff-Appellant,
v No. 365711
Tuscola Circuit Court
HILLS AND DALES GENERAL HOSPITAL, LC No. 2022-031670-NZ
Defendant-Appellee.
Before: O’BRIEN, P.J., and CAVANAGH and SHAPIRO*, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor of
defendant under MCR 2.116(C)(10). We affirm.
I. BACKGROUND
In September 2018, plaintiff, who is a doctor, and defendant entered into a hospitalist
agreement and an employment agreement. The parties agreed that plaintiff would treat patients at
defendant’s facilities in Tuscola County in exchange for a certain income. In April 2020, the
parties renegotiated the employment agreement, which permitted termination of plaintiff’s
employment without cause with 90 days’ notice. The 2020 employment agreement also provided
for immediate termination of plaintiff’s employment under certain circumstances.
In December 2020, after defendant learned that plaintiff planned to open his own medical
practice, defendant terminated plaintiff’s employment. Defendant initially gave plaintiff 90 days’
notice, which was contemplated under the terms of both contracts. However, in January 2021,
defendant immediately terminated plaintiff’s employment after defendant learned that plaintiff
was passing out business cards to patients while working at defendant’s facilities. Defendant still
paid plaintiff his salary for the duration of the 90-day-notice period.
Plaintiff began operating his own medical practice at some point. According to plaintiff,
defendant’s employees and agents engaged in a myriad of anticompetitive activities, which led
plaintiff to file the instant action. Plaintiff’s complaint alleged: (1) violation of the Michigan
*Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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Antitrust Reform Act (MARA), MCL 445.785 et seq., specifically MCL 445.7731; (2) breach of
the 2020 employment agreement and the hospitalist agreement; (3) tortious interference with a
business relationship; and (4) appropriation of plaintiff’s name and likeness for commercial gain.
Defendant answered the complaint and generally denied liability.
After the close of discovery, defendant moved for summary disposition under MCR
2.116(C)(10), and plaintiff opposed the motion.2 After a hearing, the trial court issued a written
opinion and order granting defendant’s motion for summary disposition. This appeal followed.
II. STANDARD OF REVIEW
This Court also reviews “de novo a trial court’s decision on a motion for summary
disposition.” Bailey v Antrim Co, 341 Mich App 411, 421; 990 NW2d 372 (2022) (quotation
marks and citation omitted). As explained by our Supreme Court:
A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a
claim. When considering such a motion, a trial court must consider all evidence
submitted by the parties in the light most favorable to the party opposing the
motion. A motion under MCR 2.116(C)(10) may only be granted when there is no
genuine issue of material fact. A genuine issue of material fact exists when the
record leaves open an issue upon which reasonable minds might differ. [El-Khalil
v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019) (emphasis,
quotation marks, and citations omitted).]
III. ANTITRUST
Plaintiff argues that the trial court erred by granting summary disposition in favor of
defendant on the MARA claim. We disagree.
“The antitrust laws . . . were enacted for the protection of competition, not competitors.”
Brunswick Corp v Pueblo Bowl-O-Mat, Inc, 429 US 477, 488; 97 S Ct 690; 50 L Ed 2d 701 (1977)
(quotation marks and citation omitted).3 “The essence of all antitrust claims is harm to competition
1
Plaintiff’s complaint also cited MCL 445.772, but plaintiff concedes on appeal that, in response
to defendant’s dispositive motion, plaintiff did not advance a theory under MCL 445.772. By so
doing, plaintiff effectively abandoned the claim under MCL 445.772.
2
Plaintiff’s response to defendant’s motion for summary disposition does not appear in the lower
court record, nor does it appear in the register of actions. It is nevertheless apparent from the
record that plaintiff’s response was provided to defendant and reviewed by the trial court before it
ruled on defendant’s motion. Plaintiff attached his response to his brief on appeal, and it has been
reviewed by this Court.
3
“The Michigan antitrust laws were patterned after the Sherman Anti-Trust Act,” 15 USC 1 et
seq. ETT Ambulance Serv Corp v Rockford Ambulance, Inc, 204 Mich App 392, 397; 516 NW2d
498 (1994). The Legislature has directed courts to “give due deference to interpretations given by
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over the relevant product [or service] in the relevant geographic market to the detriment of the
public.” American Key Corp v Cole Nat’l Corp, 762 F2d 1569, 1579 n 8 (CA 11, 1985). “Each
situation must be measured by the rule of reason[,] [a]nd a fundamental test is injury to the public.”
Attorney General ex rel State Banking Comm’r v Mich Nat’l Bank, 377 Mich 481, 492; 141 NW2d
73 (1966).
Plaintiff argues that defendant unlawfully attempted to create a monopoly in violation of
MCL 445.773. MCL 445.773 states, “The establishment, maintenance, or use of a monopoly, or
any attempt to establish a monopoly, of trade or commerce in a relevant market by any person, for
the purpose of excluding or limiting competition or controlling, fixing, or maintaining prices, is
unlawful.” The term “trade or commerce” is defined in relevant part as “the conduct of a business
for profit or not for profit producing or providing goods, commodities, property, or services . . . .”
MCL 445.771(c). The term “person” is defined as “an individual, corporation, business trust,
partnership, association, or any other legal entity.” MCL 445.771(a).
Our Supreme Court has adopted the following definition of the term “monopoly”:
A monopoly, in the modern sense, is created when, as a result of efforts to
that end, previously competing businesses are so concentrated in the hands of a
single person or corporation, or a few persons or corporations acting together, that
they have power to practically control the prices of commodities and thus to
practically suppress competition.
* * *
Monopoly may be said to be the result of the practical elimination of
effective business competition which thereby creates a power to control prices to
the harm of the public. [Attorney General, ex rel State Banking Comm’r v Mich
Nat’l Bank, 377 Mich 481, 488-489; 141 NW2d 73 (1966) (quotation marks and
citation omitted).]
“Monopoly power is the power to control prices or exclude competition.” The laws are “directed
against enhancement of price or throttling of competition . . . .” United States v E I du Pont De
Nemours & Co, 351 US 377, 391; 76 S Ct 994; 100 L Ed 2d 1264 (1956). The existence of
monopoly power can be established by either (1) presenting direct evidence of a defendant’s
exercise of control over prices or the actual exclusion of competitors; or (2) showing that a
defendant has a high market share in a defined market through circumstantial evidence. Re/Max
International, Inc v Realty One, Inc, 173 F3d 995, 1016 (CA 6, 1999).
To support “actual exclusion” in the market, plaintiff argued that defendant could destroy
competition by not permitting physicians, such as plaintiff, to use its “hospital facilities.”
However, evidence does not support that plaintiff was actually excluded from performing
the federal courts to comparable antitrust statutes. . . .” MCL 445.784(2). Federal court decisions
applying the Sherman Antitrust Act are thus considered persuasive authority when interpreting the
MARA.
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procedures at defendant’s hospital. Plaintiff testified only that he made “an assumption” that he
“wasn’t allowed basically in the hospital” after he received letters terminating his employment.
“[P]arties opposing a motion for summary disposition must present more than conjecture and
speculation to meet their burden of providing evidentiary proof establishing a genuine issue of
material fact.” Bennett v Detroit Police Chief, 274 Mich App 307, 319; 732 NW2d 164 (2006).
While plaintiff testified that Jean Anthony, defendant’s former president and Chief Executive
Officer, stated that she would “take care of it” when plaintiff expressed concern about patients
who he had scheduled procedures with, plaintiff’s ability to perform surgical procedures at
defendant’s hospital was not contingent upon plaintiff being employed by defendant. Anthony
testified that plaintiff maintained hospital privileges after termination of his employment, and
plaintiff acknowledged that he retained privileges under the “Medical Staff Bylaws.” Anthony
added that, to the extent any procedures were cancelled, it was not through any fault of defendant.
Additionally, there is no evidence that defendant had the ability to prevent plaintiff from
practicing medicine or performing procedures at other nearby medical facilities or hospitals.
Plaintiff maintained privileges at Scheurer Hospital in Caro, Michigan, and was not prevented
from opening and operating his own practice in Caro. Indeed, plaintiff began operating his own
practice in February 2021. Importantly, plaintiff did not allege or offer any proof that defendant
had any ability to control, fix, or maintain prices. This is important because “[t]he essence of all
antitrust claims is harm to competition over the relevant product [or service] in the relevant
geographic market to the detriment of the public.” American Key Corp, 762 F2d at 1579 n 8.
“Each situation must be measured by the rule of reason[,] [a]nd a fundamental test is injury to the
public.” Attorney General ex rel State Banking Comm’r, 377 Mich at 492. The heart of plaintiff’s
claim is that defendant prevented plaintiff from making money—not that defendant harmed the
general public by restricting competition.
In sum, plaintiff neither alleged nor produced any evidence that defendant harmed any
competition in the medical field in any relevant market. The trial court did not err by concluding
that plaintiff failed to create a genuine issue of material fact as to whether defendant had monopoly
power, and thus properly granted summary disposition in favor of defendant on this claim.
IV. BREACH OF CONTRACT
Plaintiff argues that the trial court erred by granting summary disposition on his breach-of-
contract claim. We disagree.
A claim for breach of contract requires a plaintiff to establish the following: (1) a contract
existed, (2) that contract was breached, and (3) the breach damaged the non-breaching party. Bank
of America, NA v First American Title Ins Co, 499 Mich 74, 100; 878 NW2d 816 (2016). “The
measure of damages in relation to a breach of contract is the pecuniary value of the benefits the
aggrieved party would have received if the contract had not been breached.” Doe v Henry Ford
Health Sys, 308 Mich App 592, 601; 865 NW2d 915 (2014) (quotation marks and citation omitted).
“The party asserting a breach of contract has the burden of proving its damages with reasonable
certainty, and may recover only those damages that are the direct, natural, and proximate result of
the breach.” Alan Custom Homes, Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379 (2003).
“[D]amages must not be conjectural or speculative in their nature, or dependent upon the chances
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of business or other contingencies . . . .” Van Buren Charter Twp v Visteon Corp, 319 Mich App
538, 551; 904 NW2d 192 (2017) (quotation marks and citation omitted; alterations in original).
“Lost profits, if properly proven, are an appropriate element of damages.” Body
Rustproofing, Inc v Mich Bell Tel Co, 149 Mich App 385, 390; 385 NW2d 797 (1986). “Before
lost profits are recoverable, they must be proven with a reasonable degree of certainty as opposed
to being based on mere conjecture or speculation.” Id. The First Restatement of Contracts explains
the degree of certainty required to establish lost profits:
(1) Damages are recoverable for losses caused or for profits and other gains
prevented by the breach only to the extent that the evidence affords a sufficient
basis for estimating their amount in money with reasonable certainty. [Restatement
of Contracts 1st, § 331.]
Plaintiff argues that he was damaged by defendant immediately terminating his
employment. Although plaintiff acknowledges that he was paid his agreed-upon salary during the
90-day-notice period, plaintiff argues that he lost income because he was (1) not able to “pick up”
other hospitalists’ shifts and (2) unable to earn bonuses because the bonuses were conditioned on
the number of procedures performed. In other words, plaintiff argues that if he would have been
permitted to work the full 90-day-notice period, then he could have potentially earned additional
income. This alleged loss is essentially a claim for “lost profits,” and is a cognizable form of
damages. See Body Rustproofing, 149 Mich App at 390.
Defendant does not challenge the fact that plaintiff theoretically lost income during the
period he was not permitted to work between January 2021 and March 2021. Instead, defendant
argues, and the trial court agreed, that plaintiff’s damages were speculative. Other than stating he
lost profits, plaintiff did not purport to explain, rationalize, or prove the amount of profits he
potentially lost. Indeed, the lost profits were contingent on patients requiring procedures or other
hospitalists wanting to give their shifts away to plaintiff (and plaintiff accepting). Plaintiff only
offered calculations that concerned profits lost because patients did not transfer from defendant to
plaintiff’s new practice. Plaintiff did not offer any evidence to explain, on average, how much he
earned in bonuses or how often he covered the rotation of another hospitalist during the term of
his employment with defendant. If he had done so, or was able to do so, this evidence could have
been used to calculate damages. But because the evidence does not afford a sufficient basis for
estimating the amount of lost profits with reasonable certainty, the alleged damages are
impermissibly speculative. Summary disposition was thus properly granted in favor of defendant
on the breach-of-contract claim.
V. TORTIOUS INTERFERENCE WITH A BUSINESS RELATIONSHIP
Plaintiff argues that the trial court erred by granting summary disposition in favor of
defendant on plaintiff’s claim for tortious interference with a business relationship. We disagree.
The elements of tortious interference with a business relationship or
expectancy are (1) the existence of a valid business relationship or expectancy that
is not necessarily predicated on an enforceable contract, (2) knowledge of the
relationship or expectancy on the part of the defendant interferer, (3) an intentional
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interference by the defendant inducing or causing a breach or termination of the
relationship or expectancy, and (4) resulting damage to the party whose relationship
or expectancy was disrupted. [Health Call of Detroit v Atrium Home & Health
Care Servs, Inc, 268 Mich App 83, 890; 706 NW2d 843 (2005).]
When determining whether a valid business relationship or expectancy existed, “[t]he
expectancy must be a reasonable likelihood or probability, not mere wishful thinking.” Cedroni
Assocs, Inc v Tomblinson, Harburn Assocs, Architects & Planners, Inc, 492 Mich 40, 47; 821
NW2d 1 (2012) (quotation marks and citation omitted; alteration in original). Plaintiff argues that
his ethical duties to his patients did not end upon termination of his contracts with defendant.
While true, the relevant question is whether “a valid business relationship or expectancy” exists,
Health Call of Detroit, 268 Mich App at 90, not whether plaintiff had a doctor-patient relationship
with his former patients or an ethical obligation to his former patients.
Plaintiff did not present evidence of a binding agreement between him and his former
patients, and evidence supports that the patients were free to seek medical care wherever they
decided to do so. Indeed, it is axiomatic that choosing a medical provider is a highly personal
decision, making it even more difficult for plaintiff to prove that he had a valid expectancy of
doing business with former patients. Accord Cedroni Assocs, Inc, 492 Mich at 50-51 (“Where the
ultimate decision to enter into a business relationship is a highly discretionary decision reposed
within the structure of a governmental entity, it becomes more difficult for a plaintiff to prove that
it had an expectancy of doing business with the governmental body.”). Plaintiff even
acknowledged that, when he started his independent practice, “every patient was new because it
was a brand new practice.”
On this record, there is insufficient evidence to conclude that “a valid business relationship
or expectancy” existed.4 Rather, as stated by the trial court, plaintiff merely hoped that patients he
treated while he worked for defendant would seek treatment from him at his new practice. Accord
Upper Peninsula Power Co v Village of L’Anse, 334 Mich App 581, 602; 965 NW2d 658 (2020)
(holding, in relation to a tortious interference claim, that “the only reasonable expectation” the
plaintiff had after a utility contract expired “was that it might be able to continue to provide electric
service, but that ability was wholly dependent upon the [defendant] acquiescing to the continued
service”). The trial court therefore properly granted summary disposition to defendant.
4
Plaintiff contends that he can “establish, as a matter of law, that he had business relationships
with each and every patient he treated” because he can show that (1) he treated those patients in a
physician-patient capacity and (2) those patients paid for the treatment. Plaintiff omits the fact
that those patients paid defendant for the services received, and defendant paid plaintiff for the
services performed. Plaintiff plainly had a physician-patient relationship with his patients, but the
business side of that relationship was handled wholly by defendant. That said, we leave open the
possibility that a physician-patient relationship could give rise to a valid business relationship or
expectancy under different facts.
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VI. APPROPRIATION
Plaintiff argues that the trial court erred by granting summary disposition in favor of
defendant on the appropriation claim. We disagree.
Our Supreme Court “has recognized the right of privacy and that tort claims can be brought
for invasions of that right under” the following theories:
1. Intrusion upon the plaintiff’s seclusion or solitude, or into his private
affairs.
2. Public disclosure of embarrassing private facts about the plaintiff.
3. Publicity which places the plaintiff in a false light in the public eye.
4. Appropriation, for the defendant’s advantage, of the plaintiff’s name or
likeness. [Battaglieri v Mackinac Ctr for Pub Policy, 261 Mich App 296, 300; 680
NW2d 915 (2004) (emphasis, quotation marks, and citation omitted).]
Plaintiff alleged that defendant appropriated his name and likeness after plaintiff’s
employment with defendant was terminated. Plaintiff further alleged that defendant did so for its
own commercial gain, i.e., so defendant could retain patients. As our Supreme Court explained:
The invasion of privacy cause of action for appropriation is founded upon
the interest of the individual in the exclusive use of his own identity, in so far as it
is represented by his name or likeness, and in so far as the use may be of benefit to
him or to others. The right protected by the tort is in the nature of a property right,
which the tort recognizes as being violated whenever the defendant makes use of
the plaintiff’s name or likeness for his own purposes and benefit. . . . Thus, in
contrast to the other forms of invasion of privacy, there need be no allegation that
a statement about a plaintiff was an intrusion upon seclusion or private matters or
that it was in any way false. Instead, any unauthorized use of a plaintiff’s name or
likeness, however inoffensive in itself, is actionable if that use results in a benefit
to another. [Id. at 300-301 (alteration in original; quotation marks and citations
omitted).]
In the Sixth Circuit, appropriation “has become known as the right of publicity.” Carson
v Here’s Johnny Portable Toilets, Inc, 698 F2d 831, 834 (CA 6, 1983). See also Hauf v Life
Extension Foundation, 547 F Supp 2d 771, 777-778 (WD Mich, 2008). Whereas the other theories
of invasion of privacy protect a plaintiff’s right “to be let alone,” Zacchini v Scripps-Howard
Broadcasting Co, 433 US 562, 571 n 7; 97 S Ct 2849; 53 L Ed 2d 965 (1977), the “right of
publicity” protects a plaintiff’s “pecuniary interest in the commercial exploitation of his identity,”
Carson, 698 F2d at 834. By tying appropriation to the right of publicity, a plaintiff must prove (1)
he “has a pecuniary interest in his identity,” and (2) “his identity has been commercially exploited
by a defendant.” Hauf, 547 F Supp 2d at 778. As the United States Supreme Court has explained:
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The rationale (for protecting the right of publicity) is the straightforward
one of preventing unjust enrichment by the theft of good will. No social purpose
is served by having the defendant get free some aspect of the plaintiff that would
have market value and for which he would normally pay. [Zacchini v Scripps-
Howard Broadcasting Co, 433 US 562, 576; 97 S Ct 2849; 53 L Ed 2d 965 (1977)
(alteration, quotation marks, and citation omitted).]
With respect to whether defendant benefited from the use of plaintiff’s name and likeness,
affidavits presented by plaintiff support certain patients continued to receive care from plaintiff
despite defendant’s alleged efforts to retain them as patients through the use of plaintiff’s name
and likeness. Additionally, as noted by defendant, evidence supports that defendant’s employees
or agents tried to remove plaintiff from its website and search engines. Defendant also informed
patients that they could continue to receive medical treatment and care from plaintiff, and it is clear
that some patients did. Plaintiff did not present any meaningful evidence to support his contention
that defendant retained patients by defendant’s brief use of plaintiff’s name or likeness. Indeed,
plaintiff’s employment was terminated in January 2021, and he testified that the issue with his
name being on defendant’s voicemail only “went into February” 2021. It also appears that the
issue with plaintiff’s name and image being associated with defendant on Google was resolved
around the same time. Plaintiff merely offered conjecture and speculation to support that
defendant retained a certain number of patients, which is insufficient to establish a genuine issue
of material fact. Estate of Trueblood v P&G Apartments, LLC, 327 Mich App 275, 289; 933
NW2d 732 (2019). The trial court thus did not err when it granted defendant’s motion for summary
disposition on plaintiff’s appropriation claim.
Affirmed.
/s/ Colleen A. O’Brien
/s/ Mark J. Cavanagh
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