Levitt v. Iasis Healthcare Holdings Inc. , 442 P.3d 1211 ( 2019 )

2019 UT App 68THE UTAH COURT OF APPEALS
JODIE K. LEVITT,
Appellant,
v.
IASIS HEALTHCARE HOLDINGS INC., SALT LAKE REGIONAL MEDICAL
CENTER LP, ALAN DAVIS, AND WANDA UPDIKE,
Appellees.
Opinion
No. 20180260-CA
Filed May 2, 2019
Third District Court, Salt Lake Department
The Honorable Andrew H. Stone
No. 160900952
Cecil R. Hedger and John Robinson Jr., Attorneys
for Appellant
Jonathan A. Dibble, Elaina M. Maragakis, and Erin
M. Adams, Attorneys for Appellees
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.
APPLEBY, Judge:
¶1 Jodie K. Levitt is a neurosurgeon with a medical staff
appointment and privileges at Salt Lake Regional Medical
Center (SLRMC). After Levitt’s privileges at SLRMC were
temporarily suspended, she sued Salt Lake Regional Medical
Center LP, Iasis Healthcare Holdings Inc., Alan Davis, and
Wanda Updike (collectively, Defendants). Following discovery,
the district court entered summary judgment in favor of
Defendants. Specifically, the court concluded that Utah’s
statutory care review immunity protects them from Levitt’s
lawsuit absent a showing of bad faith or malice and concluded
that Levitt had failed to produce evidence of bad faith or malice.
Levitt v. Iasis Healthcare Holdings Inc.
Levitt appeals, arguing that summary judgment was
inappropriate because there were genuine disputes of material
fact as to whether Defendants acted in good faith and without
malice. We affirm.
BACKGROUND
¶2 In 2011, Levitt applied for a two-year renewal of her
medical staff appointment and privileges at SLRMC. 1 Around
December 29, 2011, she received a letter dated November 23,
2011, (the November 23 Letter) from SLRMC’s chief executive
officer (CEO) granting her a “six-month conditional
reappointment.” The November 23 Letter explained that Levitt’s
reappointment was “conditional” because she had “several peer
reviews pending.” That is, SLRMC had asked independent
“neurosurgeons with fellowships in spinal surgery” to review
several of Levitt’s medical cases that SLRMC thought were
potentially problematic.
¶3 After receiving the November 23 Letter, Levitt requested
further information about why her reinstatement was
conditional. Various SLRMC representatives “informed her that
[they] could not talk with her about her cases that were being
peer reviewed.” These individuals generally denied Levitt’s
requests for information because they believed it was “a
requirement to protect the peer review privilege.” On two
occasions, however, SLRMC provided Levitt with a list of her
cases that had been sent for peer review.
1. “Because this matter was decided on summary judgment, we
recite the facts and inferences in the light most favorable to the
nonmoving party,” Bahnmaier v. Northern Utah Healthcare Corp.,
2017 UT App 105, ¶ 2 n.1, 402 P.3d 796 (quotation simplified),
which in this case is Levitt.
20180260-CA 2 2019 UT App 68Levitt v. Iasis Healthcare Holdings Inc.
¶4 Around February 10, 2012, Levitt received a letter dated
January 30, 2012 (the January 30 Letter) from SLRMC’s
Credentials Committee informing her that the Committee had
reviewed six of her peer reviewed cases as well as “two other
recent occurrences that [were] pending review.” The January 30
Letter identified two issues of concern from Levitt’s cases. First,
several of her patients had experienced “CSF leaks.” 2 To address
this, the Committee requested that Levitt submit “a written
protocol for handling CSF leaks in the future.” Second, Levitt
had performed “three wrong-site surgeries.” 3 The letter said that
wrong-site surgeries “are serious events and if another
wrong-site occurrence happens, the Committee [would] discuss
further action which could include termination of privileges.” To
address this issue, the Committee requested that Levitt submit
“a written protocol as to how [she would] establish confirmation
of correct site surgery in the operating room.” The January 30
2. “CSF” means cerebrospinal fluid, which is “a watery fluid that
circulates through the brain’s ventricles (cavities or hollow
spaces) and around the surface of the brain and spinal cord.”
Cerebrospinal Fluid (CSF) Leak, What is a cerebrospinal fluid (CSF)
leak?, Johns Hopkins Medicine, https://www.hopkinsmedicine.or
g/neurology_neurosurgery/centers_clinics/brain_tumor/center/s
kull-base/types/csf-leak.html [https://perma.cc/YAC5-RJLE]. “A
CSF leak is a condition that occurs when the CSF leaks through a
defect in the dura or the skull and out through the nose or ear.”
Id.
3. Wrong-site surgeries are “operations conducted on a different
organ or body part than intended by the surgeon and patient.”
Peter J. Pronovost & Bryan Sexton, Rx for Wrong-Site Surgery:
Two Minutes of Conversation, Johns Hopkins Medicine, https://w
ww.hopkinsmedicine.org/news/media/releases/rx_for_wrong_sit
e_surgery_two_minutes_of_conversation [https://perma.cc/WR2
D-CKK2].
20180260-CA 3 2019 UT App 68Levitt v. Iasis Healthcare Holdings Inc.
Letter informed Levitt that if she submitted the requested
written protocols by March 1, 2012, she would receive “a three-
month conditional reappointment.” But it noted that the
Credentials Committee would continue to review her cases “in a
concurrent fashion.”
¶5 On February 14, 2012, Levitt submitted the requested
written protocols. That same day, CEO, Davis, and Updike 4 met
with Levitt to discuss their concerns about a recent incident that
“required immediate action.” During the meeting, CEO, Davis,
and Updike issued a twenty-eight day suspension of Levitt’s
surgical and medical privileges.
¶6 The following day, SLRMC sent Levitt a letter
summarizing the suspension “per the [February 14] meeting.” It
said the suspension would last “at least 14 days,” but that
Levitt’s privileges would be reinstated if she completed certain
“criteria,” including a “proctorship.” That is, Levitt was to
submit a plan for proctoring by a neurosurgeon of “one lumbar
case,” “one cervical case,” and “four other cases to be proposed
by [Levitt] and approved by the Chief of Staff that would pertain
to the areas of clinical or procedural concern as discussed with
[Levitt] in the meeting.”
¶7 Levitt requested a hearing on her temporary suspension.
Davis responded by email and informed her that a hearing
would “not be done on an emergent basis.” Instead, he told
Levitt that she needed to request a hearing “within the 30-day
window described in [the] bylaws,” and it “would be scheduled
for some time in the future.” The email also said that, if Levitt
completed her six proctored cases during the twenty-eight day
4. At this time, Davis was the chair of SLRMC’s Medical
Executive Committee and Updike was a member of that
committee.
20180260-CA 4 2019 UT App 68Levitt v. Iasis Healthcare Holdings Inc.
suspension, she would “not be reported to the National
Practitioner Data Bank [(the NPDB) 5] as having been
suspended.” Davis cautioned her that “proceeding with the
hearing process would probably postpone a decision on her
privileges beyond 30 days, which would then make her
summary suspension reportable.” Levitt did not respond to
Davis’s email or make any further request for a hearing. Instead,
she “successfully completed the proctorship,” and her medical
staff appointment and privileges were reinstated.
¶8 In 2016, Levitt sued Defendants for breach of contract,
breach of the implied covenant of good faith and fair dealing,
tortious interference with economic relations, and civil
conspiracy. She alleged that Defendants’ actions against her
“were taken to accomplish the objective of destroying [her]
reputation and of the wrongful goal of terminating [her] active
staff membership at SLRMC and removing her from the hospital
and marketplace.”
¶9 After discovery, Defendants filed a motion for summary
judgment. They asserted that they were immune from Levitt’s
claims under Utah’s Health Care Providers Immunity from
Liability Act, which protects health care providers from liability
regarding decisions made about physician licensing and care
review absent “clear and convincing evidence” of “bad faith” or
“malice.” (Citing Utah Code section 58-13-4.) And they argued
that “the undisputed evidence show[ed] that [their] primary and
sole purpose was to restrict incompetent behavior and protect
patients.”
5. The NPDB “is a web-based repository of reports . . . that
prevents practitioners from moving state to state without
disclosure or discovery of previous damaging performance.”
About Us, National Practitioner Data Bank, https://www.npdb.hr
sa.gov/topNavigation/aboutUs.jsp [https://perma.cc/94DY-6GJT].
20180260-CA 5 2019 UT App 68Levitt v. Iasis Healthcare Holdings Inc.
¶10 In her opposition to the motion for summary judgment,
Levitt argued that there were genuine disputes of fact regarding
whether Defendants acted in bad faith and with malice. To
support her argument, she asserted that she was suspended
“without prior notice” or “any explanation as to the reason,” that
she was denied a fair hearing under the medical staff bylaws,
and that she was “forced to perform [the proctorship] within an
arbitrarily restricted time frame in order to mitigate the damage
done . . . to her professional reputation.”
¶11 The district court granted Defendants’ motion for
summary judgment, concluding that they were “immune from
[Levitt’s] claims.” Specifically, the court determined there was
“no evidence that [Defendants] acted from any motive other
than healthcare quality improvement and concern for patient
care.” Thus, Levitt “failed to rebut the presumption of good faith
and lack of malice under Utah Code Ann. § 58-13-4.”
¶12 Levitt appeals.
ISSUE AND STANDARD OF REVIEW
¶13 Levitt argues that the district court erred in granting
summary judgment in favor of Defendants because “there were
genuine disputed issues of material fact.” Specifically, she
asserts that, based on the evidence presented, “a reasonable jury
could decide that there was clear and convincing evidence of
[SLRMC’s] bad faith and malice.” 6
6. Levitt’s reply brief argues that the district court erred when it
determined that certain documents were privileged and
therefore not subject to discovery. Because Levitt did not raise
this issue in her opening brief, we do not consider it on appeal.
See Brown v. Glover, 2000 UT 89, ¶ 23, 16 P.3d 540 (“Generally,
(continued…)
20180260-CA 6 2019 UT App 68Levitt v. Iasis Healthcare Holdings Inc.
¶14 We review a district court’s decision to grant summary
judgment “for correctness, viewing the facts and all reasonable
inferences drawn therefrom in the light most favorable to the
nonmoving party.” Nelson v. Target Corp., 2014 UT App 205, ¶ 11,
334 P.3d 1010 (quotation simplified). Summary judgment is
appropriate when “there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a
matter of law.” Utah R. Civ. P. 56(a). “In assessing whether [a
party] has made a sufficient showing to withstand summary
judgment, we take into account the substantive evidentiary
standard of proof that would apply at a trial on the merits . . . .”
Christiansen v. Union Pac. R.R., 2006 UT App 180, ¶ 6, 136 P.3d
1266 (quotation simplified). We will reverse a district court’s
decision to grant summary judgment “if we conclude that a
fair-minded jury could return a verdict for [the non-moving
party] on the evidence presented.” Id. (quotation simplified).
ANALYSIS
¶15 Under Utah Code section 58-13-4, health care providers
serving in certain capacities, and the organizations or entities
sponsoring them, are entitled to qualified immunity. Utah Code
Ann. § 58-13-4(2) (LexisNexis 2016). For example, while “serving
on committees . . . established to evaluate and improve the
quality of health care,” id. § 58-13-4(2)(a)(ii), health care
providers “are immune from liability with respect to
deliberations, decisions, or determinations made . . . in good faith
and without malice,” id. § 58-13-4(2) (emphasis added). Further,
“[h]ealth care providers serving on committees . . . described in
(…continued)
issues raised by an appellant in the reply brief that were not
presented in the opening brief are considered waived and will
not be considered by the appellate court.”).
20180260-CA 7 2019 UT App 68Levitt v. Iasis Healthcare Holdings Inc.
[section 58-13-4] are presumed to have acted in good faith and
without malice, absent clear and convincing evidence to the
contrary.” Id. § 58-13-4(4) (emphasis added).
¶16 Levitt acknowledges that Defendants are entitled to a
presumption of immunity under Utah Code section 58-13-4. And
she attempts to rebut that presumption by arguing there is clear
and convincing evidence of their bad faith and malice.
Specifically, Levitt asserts that sufficient “bad faith [and malice]
can be inferred from the totality of the circumstances regarding
the conduct of the Defendants toward her.” As discussed below,
we conclude that Levitt has failed to produce sufficient evidence
of bad faith and malice, and that Defendants are therefore
immune from her claims as a matter of law. See id.; see also
Andalex Res., Inc. v. Myers, 871 P.2d 1041, 1047 (Utah Ct. App.
1994) (explaining that “a party must prove a claim with clear and
convincing evidence at the summary judgment stage if that is the
burden required at trial”).
¶17 Levitt makes various arguments attempting to show
Defendants’ bad faith or malice. We discuss each in turn.
¶18 First, she asserts that Defendants “refused to provide
[her] with the reasons for [their] decisions . . . and refused to
provide any justification for such refusal.” She argues that a jury
could infer bad faith from this “conspiracy of silence.” We reject
this argument because the record does not support it. The
undisputed evidence shows that Defendants informed Levitt of
the reasons supporting each of their decisions and actions. For
example, the November 23 Letter said that Levitt’s six-month
reinstatement was “conditional” because several of her cases had
been sent for peer review. The January 30 Letter explained
further that Levitt’s peer reviewed cases revealed “several CSF
leaks” as well as “three wrong-site surgeries.” Levitt even
acknowledges that, on two occasions, Defendants provided her
with lists of her potentially problematic cases that had been sent
20180260-CA 8 2019 UT App 68Levitt v. Iasis Healthcare Holdings Inc.
for peer review. And CEO, Davis, and Updike each testified in
sworn declarations that, prior to issuing Levitt’s temporary
suspension, they discussed with her the issues from her peer
reviewed cases as well as a more recent incident that “required
immediate action.”
¶19 Granted, Defendants acknowledge that, on occasion, they
“informed [Levitt] that [they] could not talk with her about her
cases that were being peer reviewed.” But this fact, without
more, does not support an inference of bad faith or malice. See
Everett v. St. Ansgar Hosp., 974 F.2d 77, 80 (8th Cir. 1992)
(declining to adopt the plaintiff’s argument “that because the
third-party review was conducted in secret, without his input as
to who the reviewers should be, there is a necessary inference of
malice”). Defendants presented undisputed evidence that “the
lack of response to Levitt’s inquiries for peer review information
was to protect the peer review privilege.”
¶20 On appeal, Levitt claims the peer review privilege “is a
post hoc justification, not the reason for [Defendants’] secrecy.”
The problem with this theory is that Levitt has produced no
evidence of an ulterior motive. Instead, she simply alleges that
the “conspiracy of silence” was intended “to vex and frustrate
[her] professional aspirations and damage [her] professional
reputation.” Such “bare allegations” are insufficient to support a
reasonable inference of bad faith or malice. See Nelson v. Target
Corp., 2014 UT App 205, ¶ 25, 334 P.3d 1010. “[A] plaintiff cannot
avoid summary judgment based on doubtful, vague, speculative
or inconclusive evidence.” Id. (quotation simplified).
¶21 Levitt also identifies “missteps” in communication,
asserting that “Defendants made adverse decisions concerning
[her] hospital privileges and repeatedly delayed sending notice
of these decisions.” That is, Levitt argues she “is entitled to an
inference of bad faith” because she did not receive the
November 23 Letter until late December and she received the
20180260-CA 9 2019 UT App 68Levitt v. Iasis Healthcare Holdings Inc.
January 30 Letter around February 10. These “delays in
communication” lend little support to Levitt’s position. As
Defendants note on appeal, “there is no evidence in the record
showing the reason for these delays.” Instead, Levitt simply
asserts that Defendants delayed notifying her of their decisions
as part of the alleged “conspiracy” against her. This argument is
speculative at best, and we are not convinced that it supports
even an inference of bad faith or malice. See Kranendonk v.
Gregory & Swapp, PLLC, 2014 UT App 36, ¶ 15, 320 P.3d 689 (“A
reasonable inference exists when there is at least a foundation in
the evidence upon which the ultimate conclusion is based . . . .”
(quotation simplified)). But even granting Levitt every favorable
inference, any “delayed communication” does little to help
Levitt meet her burden of establishing bad faith and malice by
clear and convincing evidence.
¶22 Next, Levitt argues that a jury could infer bad faith from
the “outright denial of her request for the fair hearing required
in the bylaws.” Again, the record does not support this
argument. The evidence shows that, after Levitt was suspended,
she requested an immediate hearing. In response, Davis
informed her by email that a hearing “would not be done on an
emergent basis.” He explained that Levitt had “to request a fair
hearing . . . within the 30-day window described in the bylaws,”
which would “be scheduled for some time in the future.” It is
undisputed that Levitt did not respond to Davis’s email or make
any further request for a hearing. Instead, she proceeded to
“successfully complete the proctorship,” which allowed her to
regain her privileges at SLRMC and avoid having her
suspension reported to the NPDB. Thus, the evidence seems to
show that Levitt decided against a hearing, and we see no
support for her allegation that her request for a hearing “was
summarily, and maliciously denied by [Davis].”
¶23 Finally, we reject as unsupported by the evidence Levitt’s
argument that Defendants “maliciously” and “wrongfully”
20180260-CA 10 2019 UT App 68Levitt v. Iasis Healthcare Holdings Inc.
issued the conditional reappointment and the temporary
suspension. The November 23 Letter shows that Levitt’s
reappointment was “conditional” because several of her cases
had been sent for peer review. The January 30 Letter shows that
those peer reviewed cases revealed “several CSF leaks” as well
as “three wrong-site surgeries.” Further, the undisputed
evidence shows that Levitt’s temporary suspension resulted
from yet another incident that “required immediate action.” And
the proctorship requirement was designed to address “the areas
of clinical and procedural concern” that Defendants had
identified and discussed with Levitt. Given this uncontroverted
evidence, the only reasonable conclusion is that Defendants
acted for the purpose of improving the quality of healthcare at
SLRMC.
¶24 In short, no “fair minded jury,” Christiansen v. Union Pac.
R.R., 2006 UT App 180, ¶ 6, 136 P.3d 1266 (quotation simplified),
could conclude there is “clear and convincing evidence” that
Defendants acted in bad faith or with malice, Utah Code Ann.
§ 58-13-4(4) (LexisNexis 2016). Accordingly, under Utah Code
section 58-13-4, Defendants are immune from Levitt’s claims.
CONCLUSION
¶25 The district court did not err in entering summary
judgment in favor of Defendants. Under Utah Code section
58-13-4, Defendants are immune from Levitt’s claims because
Levitt failed to produce sufficient evidence of bad faith or
malice. We affirm.
20180260-CA 11 2019 UT App 68