Fine v. University of Utah ( 2024 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2024 UT 4IN THE
SUPREME COURT OF THE STATE OF UTAH
GABRIEL FINE, M.D.,
Appellant,
v.
UNIVERSITY OF UTAH SCHOOL OF MEDICINE,
Appellee.
No. 20220638
Heard October 18, 2023
Filed February 8, 2024
On Direct Appeal
Third District, Salt Lake County
The Honorable Amy J. Oliver
No. 200900022
Attorneys:
Peter R. Stirba, Shannon K. Zollinger, Salt Lake City, for appellant
Sean D. Reyes, Att’y Gen., Peggy E. Stone, Asst. Solic. Gen.,
Salt Lake City, for appellee
JUSTICE HAGEN authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE PETERSEN,
JUSTICE POHLMAN, and JUDGE LUTHY joined.
Having recused himself, CHIEF JUSTICE DURRANT does not
participate herein; COURT OF APPEALS JUDGE JOHN D. LUTHY sat.
JUSTICE HAGEN, opinion of the Court:
INTRODUCTION
¶1 Dr. Gabriel Fine is an interventional radiologist and has
worked for the University of Utah School of Medicine since 2016.
After concerns were raised in 2018 regarding his medical
FINE v. U OF U SCHOOL OF MEDICINE
Opinion of the Court
competence, Dr. Fine agreed to a suspension of his clinical
privileges so that the University could conduct an informal review.
Following the review, the University recommended that Dr. Fine
receive additional training at a separate institution before returning
to his interventional radiology practice at the University. Dr. Fine
later brought suit, alleging that the University deprived him of his
clinical privileges without following the procedures required by its
bylaws.
¶2 The University moved for summary judgment, arguing
that, per the bylaws, Dr. Fine had agreed not to sue “for any matter
relating to appointment, reappointment, clinical privileges, or the
individual’s qualifications for the same.” The district court agreed
that Dr. Fine had released his claims against the University, and it
granted summary judgment accordingly.
¶3 On appeal, Dr. Fine contends that the district court erred
in concluding that the release applied. He does not argue that the
release is unenforceable, but only that it is “inapplicable” to his
claims. As a matter of contract interpretation, we hold that Dr.
Fine’s claims against the University fall within the scope of the
release and therefore affirm.
BACKGROUND
¶4 The University hired Dr. Fine as an assistant professor of
radiology in February 2016. As part of his employment, Dr. Fine
received clinical privileges within the University of Utah Health
system, which permitted him to practice interventional radiology
subject to hospital bylaws. Most recently, Dr. Fine was reappointed
in July 2018, and his clinical privileges were renewed for a two-year
period.
¶5 During the months surrounding his reappointment, Dr.
Fine’s superiors received a number of complaints about his medical
care. In August 2018, Dr. Fine met with the hospital’s chief medical
officer (CMO), who informed him of the “swath of concerns from
staff.” The particulars of the meeting are somewhat disputed, but
Dr. Fine “admits that he agreed to a limited and temporary leave of
practice” so that the University could conduct an informal review
of his medical competence. Dr. Fine retained his academic
appointment during the review, and he was paid accordingly.
¶6 The informal review, which the bylaws call the “Collegial
Process,” exists to “address questions that arise regarding a [staff]
member’s clinical practice or behavior” and entails “voluntary,
responsive actions where there is a reasonable likelihood that such
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steps may correct a pattern/concern before it requires formal
investigation.” For instance, a staff member may be encouraged to
attend “counseling regarding appropriate behavior” or to obtain
“additional education” to remedy the issue.
¶7 The Collegial Process is “encouraged, but [is] not
mandatory,” and the bylaws separately provide that “[w]henever
a serious question has been raised, or where [the Collegial Process]
ha[s] not resolved an issue” regarding a staff member’s medical
competence, the matter may be subject to a formal review, which
the bylaws refer to as an “Investigation.” The bylaws set forth
extensive procedural requirements that the University must follow
when conducting a formal review. In contrast to the Collegial
Process, an adverse ruling following a formal review is reportable
to the National Practitioner Data Bank or licensing authorities.
Accordingly, Dr. Fine alleges that the CMO gave him “a Hobson’s
choice of either . . . agreeing [to the Collegial Process] or risking a
reportable action.”
¶8 Following Dr. Fine’s meeting with the CMO, the
University retained a third-party specialist to evaluate Dr. Fine’s
medical competence. After reviewing case files and meeting with
Dr. Fine, the specialist noted several concerns related to the care Dr.
Fine provided. At the specialist’s recommendation, the University
informed Dr. Fine that he would need to obtain an additional six to
twelve months of training at a separate institution; only then could
he return to his interventional radiology practice at the University.
Dr. Fine never obtained the recommended training, and, months
later, he tendered his resignation. Soon thereafter, Dr. Fine
accepted a position in the University’s nuclear medicine section,
where he remains today.
¶9 Dr. Fine filed suit in January 2020, raising claims for breach
of contract and breach of the implied covenant of good faith and
fair dealing. He alleged that the University breached its obligations
under the bylaws by, “among other things, prohibiting Dr. Fine
from providing clinical services to patients while denying his
contractual due-process rights.” In his view, the University coerced
him into giving up his clinical privileges when he was entitled to a
formal review and the attendant procedural protections. The
University disagreed, contending that requiring Dr. Fine to obtain
additional training before he could return to his interventional
radiology practice was an appropriate means of addressing the
matter under the bylaws. The University added that it remained
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Opinion of the Court
willing to restore Dr. Fine’s interventional radiology privileges
once he completed the additional training.
¶10 The University eventually moved for summary judgment.
Aside from arguing that it had sufficiently performed under the
bylaws, the University pointed to a provision where Dr. Fine had
“released [the University] from any and all liability” and “agree[d]
not to sue . . . for any matter relating to appointment,
reappointment, clinical privileges, or [his] qualifications for the
same.” On this point, Dr. Fine argued that the release did “not
apply to [his] claims on its face” and, if it did, the protections set
forth in the bylaws would amount to “an illusory promise.”
(Quoting Peirce v. Peirce, 2000 UT 7, ¶ 21, 994 P.2d 193 (cleaned up).)
¶11 The district court ruled that the release applied to Dr.
Fine’s claims and that the University had substantially complied
with its obligations under the bylaws. The court accordingly
granted summary judgment in favor of the University. Following
the court’s ruling, the University moved for attorney fees, which
the court also granted. Dr. Fine now appeals.
ISSUE AND STANDARD OF REVIEW
¶12 Dr. Fine appeals the district court’s grant of summary
judgment in favor of the University. In his view, the court
incorrectly concluded that the release applied and that the
University was entitled to judgment as a matter of law. 1 “We
review a district court’s grant of summary judgment for
correctness.” Patterson v. State, 2021 UT 52, ¶ 27, 504 P.3d 92.
Summary judgment is appropriate “only when, viewing all facts
and reasonable inferences therefrom in the light most favorable to
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1 The University also moved for summary judgment on the
ground that Dr. Fine’s claims were barred by the Health Care
Providers Immunity from Liability Act. See UTAH CODE §§ 58-13-1
to -5. The Act provides that certain individuals and entities are
“immune from liability arising from participation in a review of a
health care provider’s professional ethics, medical competence,
moral turpitude, or substance abuse.” Id. § 58-13-5(7). The district
court agreed with the University in this respect as well and granted
summary judgment on the alternative basis that the University had
statutory immunity. Dr. Fine also challenges that determination on
appeal. But because we affirm the court’s determination that Dr.
Fine’s claims are barred by the release, we need not address
whether his claims are also barred by statute.
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the nonmoving party, there is no genuine issue as to any material
fact and the moving party is entitled to a judgment as a matter of
law.” Id. (cleaned up); see also UTAH R. CIV. P. 56(a).
ANALYSIS
¶13 The district court concluded that the University was
entitled to judgment as a matter of law because Dr. Fine’s claims
were covered by the release. Dr. Fine contends that the court erred
in granting summary judgment on this basis because the release
“was inapplicable.” We conclude that Dr. Fine has not articulated
a reasoned basis for reversing the district court’s interpretation of
the release.
¶14 We interpret the release using our traditional tools of
contract interpretation. “The bylaws of the hospital are, in essence,
a contract between the hospital and the physician.” Rees v.
Intermountain Health Care, Inc., 808 P.2d 1069, 1076 (Utah 1991),
abrogated in part on other grounds by Soter’s, Inc. v. Deseret Fed. Sav. &
Loan Ass’n, 857 P.2d 935 (Utah 1993). As with any other contract,
we “look at the plain language . . . to determine the parties’
meaning and intent.” In re Western Ins. Co., 2022 UT 38, ¶ 35, 521
P.3d 851 (cleaned up). This approach not only “preserves the intent
of the parties” but also “protects the contract against judicial
revision.” Plateau Mining Co. v. Utah Div. of State Lands & Forestry,
802 P.2d 720, 725 (Utah 1990).
¶15 Article 1 of the University’s bylaws contains a release
provision that applies to applicants for “appointment,
reappointment, or clinical privileges” and is operative during both
“the processing and consideration of the application . . . and
throughout the term of any appointment or reappointment.” The
release provides as follows:
To the fullest extent permitted by law, the individual
releases from any and all liability, extends absolute
immunity to, and agrees not to sue the Hospital,
Hospital Board, the Medical Staff, their authorized
representatives, and appropriate third parties for any
matter relating to appointment, reappointment,
clinical privileges, or the individual’s qualifications
for the same. This includes any actions,
recommendations, reports, statements,
communications, or disclosures involving the
individual, which are made, taken, or received by the
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Hospital, its authorized agents, or appropriate third
parties.
¶16 In this lawsuit, Dr. Fine alleges a breach of contract claim
arising from the University’s actions “prohibiting Dr. Fine from
providing clinical services to patients.” On its face, that claim
pertains to “any matter relating to . . . clinical privileges,” as stated
in the release. The terms “any,” 2 “matter,” 3 and “relating to”4 are
exceptionally broad. And Dr. Fine has given us no reason to
question that the term “clinical privileges” encompasses the
permission to “provid[e] clinical services to patients” that he claims
the University unlawfully withheld.
¶17 Nevertheless, Dr. Fine contends that the release “is
inapplicable because [his] suit does not challenge his ‘appointment,
reappointment, clinical privileges or his qualifications for those
privileges’—i.e., the [formal] review process itself.” In other words,
Dr. Fine asserts that the release only applies to the formal review
process. Because his claims against the University arise from
actions taken during the informal process, he reasons that the
release does not bar his claims. But Dr. Fine never engages with the
contractual language to show how it supports his initial
assumption that the release only applies to actions taken in
connection with a formal review.
¶18 We see no textual justification for limiting the release’s
application to actions taken during the formal review process. The
release never mentions the review process—formal or informal—
or any of the other procedures for addressing competency
concerns, all of which are set forth in Article 5 of the bylaws. The
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2 Any, MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary /any (last visited Jan. 23, 2024) (“1. [O]ne
or some indiscriminately of whatever kind . . . .”).
3 Matter, BLACK’S LAW DICTIONARY (11th ed. 2019) (“1. A
subject under consideration, esp. involving a dispute or litigation;
. . . 2. Something that is to be tried or proved; an allegation forming
the basis of a claim or defense . . . 3. Any physical or tangible
expression of a thought.”).
4 Relate to, MERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/relate%20to (last visited Jan. 23, 2024) (4.
“[T]o be connected with . . . or to be about (someone or
something).”).
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release appears in Article 1, which addresses applications for
clinical privileges. And the language immediately preceding the
release states that it applies not only to the initial application
process, but also “throughout the term of any appointment or
reappointment.” This broad language, which makes the release
applicable at all stages of an individual’s appointment, refutes the
argument that the release applies only when that individual is
subject to a formal review.
¶19 Dr. Fine does not undertake any analysis of the contractual
language to explain how it supports his interpretation that the
release only covers actions taken during the formal review process.
When arguing that the district court misinterpreted a contract, an
appellant cannot “meet its burden of persuasion with general
arguments rather than an analysis of the key contractual language.”
2010-1 RADC/CADC Venture, LLC v. Dos Lagos, LLC, 2017 UT 29,
¶ 32, 408 P.3d 313. Here, Dr. Fine does not engage in any plain
language analysis of the release itself, nor does he direct us to any
other provision of the contract which, when read together, suggests
that the release is as limited as he asserts.
¶20 Rather than analyzing the contractual language at issue,
Dr. Fine directs us to Rees v. Intermountain Health Care, Inc., a similar
case in which a doctor sued a hospital, alleging that it had revoked
his elective surgery privileges without affording him the
procedural protections guaranteed by the hospital’s bylaws. 808
P.2d at 1071–72. After Dr. Rees prevailed at trial, the hospital
appealed, arguing that the district court should have granted its
motion for summary judgment because the release in its bylaws
barred Dr. Rees’s suit. Id. at 1072, 1076. We rejected that argument,
in part, because the revocation of Dr. Rees’s privileges had occurred
during a meeting that “was not a peer review hearing within the
description and designation contained in the bylaws.” Id. at 1077.
Dr. Fine asserts that “[l]ikewise, the suspension of [his] clinical
privileges extracted in the . . . meeting with [the CMO] was not a
peer review hearing.” 5 And because the release in Rees did not
apply to Dr. Rees’s claims, Dr. Fine argues that the release here is
similarly inapplicable to his claims.
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5 The term “peer review” is mentioned only once in the
bylaws—in the section describing the informal Collegial Process.
But we understand that by “peer review” Dr. Fine means the formal
review process identified in the bylaws as an “Investigation.”
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¶21 The district court rejected that argument because it
concluded that, unlike in Rees, “Dr. Fine was afforded peer review
via the collegial process and did not have any privileges revoked
without his consent.” The court also determined that “[t]he
University acted in good faith and in compliance with its Bylaws”
like the hospital in Don Houston, M.D., Inc. v. Intermountain Health
Care, Inc., 933 P.2d 403 (Utah Ct. App. 1997). 6 On appeal, Dr. Fine
asserts that the district court erred in both determinations.
¶22 We do not reach the question of whether this case is
distinguishable from Rees on the grounds articulated by the district
court because a more fundamental distinction is apparent from the
record. 7 The release in this case does not contain the same language
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6 The court cited Don Houston for the proposition that
“[w]here a hospital acts in good faith and substantially complies
with its bylaws, it is immune from suit under” the release. (Citing
933 P.2d 403, 406–08 (Utah Ct. App. 1997).) Both parties likewise
assume that Don Houston treated substantial compliance with the
bylaws as a prerequisite to the University invoking the release. This
is an incorrect reading of Don Houston. The Don Houston court
affirmed on two separate grounds: (1) the surgeon’s claims were
barred by a release in the hospital’s bylaws, see id. at 407–08; and
(2) based on the undisputed facts, the hospital had suspended the
surgeon’s privileges in substantial compliance with its bylaws, see
id. at 408–09. The court of appeals made clear that substantial
compliance was an alternative ground for affirmance that was
unnecessary to reach once the court determined that the suit was
barred by the release. See id. at 408 (“Although resolution of the
bylaw immunity issue technically resolves this appeal, we also
address the issue of whether [the hospital] complied with the
bylaws . . . .”). In other words, substantial compliance went to the
merits of the claim, not to whether the release barred the suit. Thus,
in determining whether Dr. Fine’s claims fell within the scope of
the release, there was no need for the district court to consider
whether the hospital substantially complied with its bylaws.
7 “It is well settled that an appellate court may affirm the
judgment appealed from if it is sustainable on any legal ground or
theory apparent on the record . . . .” Bailey v. Bayles, 2002 UT 58,
¶ 10, 52 P.3d 1158 (cleaned up). This is true “even though such
ground or theory differs from that stated by the trial court to be the
basis of its ruling or action,” and even if “such ground or theory is
(continued . . .)
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as the release in Rees. In Rees, we interpreted the release at issue to
mean that “the hospital and its personnel [were immune] from
defamation suits or suits arising from actions taken in the peer
review process itself.” 808 P.2d at 1076–77. Because the release only
barred those two types of claims and Dr. Rees’s suit was not a
defamation action, we proceeded to consider whether the suit arose
“from actions taken in the peer review process itself.” Id. at 1077.
And we concluded, based on the evidence at trial, that the meeting
at which Dr. Rees’s privileges were revoked “was not a peer review
hearing” and therefore the release did not apply. Id.
¶23 Rees does not stand for the proposition that all releases in
hospital bylaws—however worded—are limited to claims arising
from the peer review process. In holding that the release “in the
hospital bylaws did not prevent Dr. Rees’s suit for denial of due
process in contravention of the bylaws,” we were not stating a
generally applicable principle of law but interpreting the specific
contractual language before us. Id. As a result, that holding is of
limited precedential value unless a court is interpreting an identical
or substantively equivalent release. Here, because Dr. Fine has
undertaken no comparison of the two sets of bylaws, he has not
persuaded us that the holding in Rees is relevant, much less
controlling.
¶24 Finally, Dr. Fine asserts that the release “presupposes that
the University has, in fact, followed its contractual procedures
relating to any action taken with respect to clinical privileges.” To
support that argument, Dr. Fine directs us to a provision in the
same section as the release that states, “The individual agrees that
the hearing and appeal procedures set forth in [the bylaws] shall be
the sole and exclusive remedy with respect to any professional
review action taken by the [University].” But Dr. Fine does not
explain how that provision narrows the scope of the release.8
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not urged or argued on appeal by appellee, was not raised in the
lower court, and was not considered or passed on by the lower
court.” Id. (cleaned up).
8 Dr. Fine has not invoked the first breach rule, which might
turn on whether the contractual procedures and the release are
mutually dependent provisions. See Larson v. Stauffer, 2022 UT App
108, ¶ 26, 518 P.3d 175 (“The first breach rule provides that when
one party materially breaches a provision of a contract, the other
(continued . . .)
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Because, on its face, the release applies to Dr. Fine’s claims, we
affirm the district court’s ruling granting summary judgment for
the University.
CONCLUSION
¶25 Dr. Fine provides no basis for rejecting the district court’s
determination that his claims are barred by the terms of the release,
which prohibit suit for “any matter relating to appointment,
reappointment, clinical privileges, or [his] qualifications for the
same.” Dr. Fine, therefore, fails to show that the court erred in
granting summary judgment to the University. We affirm and
remand so that the district court can calculate an award of attorney
fees incurred on appeal. 9
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party’s subsequent failure to perform a specific obligation is
excused if the promises are mutually dependent.” (cleaned up)).
Nor has he advanced any other argument on appeal relating to the
enforceability of the release. Dr. Fine did argue below that if the
release was as broad as the University contended, the bylaws
would present an “illusory promise,” but he abandoned that
argument on appeal.
9 The University requests attorney fees on appeal because the
district court awarded them below under the reciprocal fee statute
and an attorney fee provision set forth in the bylaws. See UTAH
CODE § 78B-5-826. Dr. Fine contests this award only to the extent
the court erred in concluding that the University was entitled to
summary judgment and was, therefore, the prevailing party.
Because Dr. Fine has not established error, we agree that the
University is entitled to attorney fees incurred on appeal. See Jordan
Constr., Inc. v. Fed. Nat’l Mortg. Ass’n, 2017 UT 28, ¶ 71, 408 P.3d 296(“When a party is entitled to attorney fees below and prevails on
appeal, that party is also entitled to fees reasonably incurred on
appeal.” (cleaned up)).
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