Bertram A. Graves, M.D. v. Indiana University Health, f/k/a Clarian Health Partners, Inc., Richard Kovacs, M.D., and Edward Ross, M.D.

Jun 05 2015, 8:44 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Adam Lenkowsky L. Alan Whaley
Roberts & Bishop Stephen E. Reynolds
Indianapolis, Indiana Ice Miller LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Bertram A. Graves, M.D., June 5, 2015
Appellant-Plaintiff, Court of Appeals Case No.
49A05-1412-PL-560
v. Appeal from the Marion Superior
Court
The Honorable Heather A. Welch,
Indiana University Health, f/k/a Judge
Clarian Health Partners, Inc.,
Richard Kovacs, M.D., and Trial Court Cause No. 49D12-1009-
PL-39308-001
Edward Ross, M.D.,
Appellees-Defendants
Bradford, Judge.
Case Summary
[1] On March 7, 2012, Appellant-Plaintiff Dr. Bertram A. Graves, M.D. filed a
second amended complaint against Appellees-Defendants Indiana University
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Health, f/k/a Clarian Health Partners, Inc., Dr. Richard Kovacs, M.D., and
Dr. Edward Ross, M.D. (collectively, “the Appellees”). In the second amended
complaint, Dr. Graves raised claims of breach of contract, violation of his civil
rights, and intentional infliction of emotional distress. The Appellees
subsequently filed for summary judgment. Dr. Graves then filed a motion
requesting the trial court to compel the Appellees to respond to certain
discovery requests. He also filed an amended affidavit which stated his
opposition to the Appellees’ motions for summary judgment. The Appellees
subsequently sought to strike certain portions of Dr. Graves’s amended
affidavit.
[2] On September 30, 2014, the trial court denied Dr. Graves’s motion to compel.
The trial court also subsequently denied Dr. Graves’s motion to reconsider the
denial of his motion to compel. On November 10, 2014, the trial court granted
the Appellees’ motion to strike and their motion for summary judgment.
[3] On appeal, Dr. Graves contends that the trial court abused its discretion in
denying his motion to compel the IU Health to comply with certain discovery
requests and in granting IU Health’s motion to strike portions of Dr. Graves’s
amended affidavit. Dr. Graves also contends that the trial court erred in
granting summary judgment in favor of the Appellees. Finding no abuse of
discretion or error by the trial court, we affirm.
Facts and Procedural History
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[4] Initially, we note that this is the second time that the instant matter comes
before this court on appeal. The underlying facts, as set-forth in our opinion on
the parties’ first appeal, are as follows:
Dr. Graves is a cardiologist who worked for Clarian Health Partners
(“Clarian”), which later became known as Indiana University Health
(“IU Health”), from 1992 through August 1, 2009.[1] On that date, [IU
Health] revoked his cardiology privileges. Dr. Graves contends that
Drs. Kovacs and Ross played a role in the revocation of his privileges,
by providing false information to peer review committees and
improperly reviewing allegations against Dr. Graves.
On September 7, 2010, Indianapolis MOB, LLC (“MOB”), which is a
corporate landlord, sued Dr. Graves for breaching his lease of office
space by failing to pay rent. Dr. Graves, in turn, filed a third-party
complaint against [IU Health] on November 30, 2010, alleging breach
of contract when it did not renew his cardiology privileges, and
alleging a substantial loss of income and the inability to pay his rent to
MOB. Dr. Graves filed his first amended third-party complaint on
December 27, 2010, to attach a copy of his contract with [IU Health].
On January 27, 2011, the trial court granted MOB’s motion to sever
the third-party complaint from its lawsuit against Dr. Graves. After
over a year of delay regarding how the parties would proceed, on
March 7, 2012, Dr. Graves filed a “Second Amended Complaint”
against Clarian/IU Health under a separate cause number from the
original MOB lawsuit. App. p. 116. This complaint for the first time
named Drs. Kovacs and Ross as defendants. Under a caption heading
that Dr. Graves labeled as “Breach of Contract,” he alleged that his
employment by [IU Health] was governed by certain bylaws, a code of
conduct policy, a peer review policy, and a corrective action policy.
Id. at 117. Dr. Graves further alleged that, in 1995, his cardiology
privileges were “summarily suspended” under the orchestration of Dr.
Ross, using false allegations against Dr. Graves. Id. Dr. Graves also
1
Throughout this memorandum decision, we will refer to Indiana University Health, f/k/a
Clarian Health Partners as IU Health.
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alleged that, in 2006 or 2007, Dr. Ross refused to assist Dr. Graves in
having his privileges restored. As for Dr. Kovacs, Dr. Graves alleged
that he “maliciously and in bad faith” reviewed allegations made
against Dr. Graves during peer reviews of Dr. Graves and that he was
“instrumental in the elimination” of Dr. Graves’s privileges. Id. at
118. Finally, Dr. Graves alleged [IU Health] breached its contract
with him by eliminating his privileges without cause and without
adequate notice, and also that it breached various policies related to
termination of his privileges.
On September 6, 2012, Drs. Kovacs and Ross filed a motion for
judgment on the pleadings. The sole argument in the motion was that
Dr. Graves had failed to state any claim against them for breach of
contract because they were not party to any contract with Dr. Graves.
In response, Dr. Graves asserted that the facts alleged in the second
amended complaint sufficiently stated a cause of action against Drs.
Kovacs and Ross for tortious interference with a contract, namely
between Dr. Graves and [IU Health]. On November 5, 2012, Drs.
Kovacs and Ross filed a response to this assertion, arguing that any
claim for tortious interference with a contract was barred by the two-
year statute of limitations for such a claim. Dr. Graves did not have a
chance to respond to this statute of limitations argument because the
trial court granted the motion for judgment on the pleadings on the
same day that it was filed, November 5, 2012. The trial court’s order
mentioned only Dr. Graves’s alleged failure to state a claim and not
the statute of limitations argument. On December 6, 2012, the trial
court denied Dr. Graves’s motion to correct error. It also denied Dr.
Graves’s motion to amend his complaint to more clearly state a claim
against Drs. Kovacs and Ross for tortious interference with a contract.
Graves v. Kovacs, 990 N.E.2d 972, 974-75 (Ind. Ct. App. 2013) (footnote omitted).
On appeal, we concluded that Dr. Graves was not given an adequate opportunity
before the trial court to address the statute of limitations issue. Id. at 978. We
therefore reversed the trial court’s order granting judgment on the pleadings in
favor of Drs. Kovacs and Ross without offering an opinion on the merits of the
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statute of limitations issue, and remanded the matter to the trial court for further
proceedings. Id.
[5] On remand, the Appellees filed for summary judgment. On September 12,
2014, Dr. Graves filed a motion to compel the Appellees to respond to certain
discovery requests. On September 26, 2014, Dr. Graves submitted an amended
affidavit in opposition to the Appellees’ motions for summary judgment. The
Appellees subsequently sought to strike certain portions of Dr. Graves’s
amended affidavit.
[6] On September 30, 2014, the trial court denied Dr. Graves’s motion to compel.
The trial court also subsequently denied Dr. Graves’s motion to reconsider the
denial of his motion to compel. On November 10, 2014, the trial court granted
the Appellees’ motion to strike and their motion for summary judgment.
Specifically, the trial court determined that the Appellees were protected by
peer-review immunity, Dr. Graves had not established discrimination, and the
claims against Drs. Ross and Kovacs were time-barred. This appeal follows.
Discussion and Decision
[7] On appeal, Dr. Graves contends that the trial court abused its discretion in
denying his motion to compel IU Health to comply with certain discovery
requests, abused its discretion in granting IU Health’s motion to strike portions
of Dr. Graves’s amended affidavit, and erred in granting summary judgment in
favor of the Appellees.
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I. Denial of Dr. Graves’s Motion to Compel
[8] Dr. Graves contends that the trial court abused its discretion in denying his
motion to compel IU Health to comply with certain discovery requests. Upon
review, we review a challenge to a trial court’s discovery order for an abuse of
discretion. See State v. Int’l Bus. Machines Corp., 964 N.E.2d 206, 209 (Ind.
2012). “An abuse of discretion has occurred if the trial court’s decision is
clearly against the logic and effect of the facts and circumstances before the
court, or if the court has misinterpreted the law.” Smith v. Ind. Dep’t of
Correction, 871 N.E.2d 975, 987 (Ind. Ct. App. 2007) (citing McCullough v.
Archbold Ladder Co., 605 N.E.2d 175, 180 (Ind. 1993)), trans. denied.
[9] In September of 2014, Dr. Graves filed a motion requesting the trial court to
compel IU Health to respond to certain discovery requests. Specifically, Dr.
Graves requested that the trial court order IU Health to “provide
documentation that is non-redacted in response to the discovery request.”
Appellant’s App. p. 323. In making this request, Dr. Graves asserted that he
could not properly respond to IU Health’s motion for summary judgment
without “the proper completion of discovery.” Appellant’s App. p. 324.
[10] IU Health subsequently filed a response in opposition to Dr. Graves’s motion to
compel. In this response, IU Health outlined the history of the parties’
discovery dispute, with the relevant portions reading as follows:
INTRODUCTION
After having done nothing to advance his discrimination case
against Defendants for nearly a year, Plaintiff has filed a Motion to
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Compel raising issues with discovery in a transparent attempt to delay
summary judgment. However, the majority of the documents Plaintiff
requests have already been produced to him. Defendants have
produced over 2,000 pages of documents including medical staff
policies, exhibits and transcripts from the Health Care Provider Peer
Review proceedings, Plaintiff’s medical staff file, Cardiovascular On
Call Schedules, documents listing On-Call ECHO Readers, and Heart
Station Weekly Reading Schedules for the heart lab that Plaintiff
worked in. The remainder of the documents Plaintiff seeks are not
relevant nor reasonably calculated to lead to the discovery of
admissible evidence, and Defendants properly objected to these
requests over a year ago. Plaintiff’s Motion to Compel should be
denied.
HISTORY OF DISCOVERY REQUESTS AT-ISSUE
Plaintiff paints an unclear and incomplete picture of the
exchanges between the parties concerning Plaintiff’s discovery requests
and Defendants’ responses. Defendants initially responded to
Plaintiff’s discovery requests in August 2013 — producing hundreds of
pages of documents while objecting to certain requests in seeking “all
records” of some doctors for a 17-year period as overly broad, unduly
burdensome, vague, and not relevant. After a brief discussion of the
discovery dispute in November 2013, Defendants heard nothing from
Plaintiff until after filing their Motion for Summary Judgment on the
July 15, 2014 deadline for dispositive motions. Following Plaintiff’s
renewed interest in discovery in late August 2014, Defendants have
expeditiously responded to Plaintiff’s letters requesting documents,
producing over 2,000 pages of documents within 16 days, including
documents that had already been produced to Plaintiff’s counsel before
his withdraw. The following is a chronology of the discovery activity
in this case.
On June 21, 2013, Plaintiff served his First Request for
Production of Documents. (Ex. A, Plaintiff’s First Request for
Production of Documents.) After Plaintiff, through counsel, agreed to
an initial extension, Defendants responded on August 23, 2013,
producing several pages of documents, stating additional documents
would be produced upon entry of a protective order, and objecting to
some of the requests in their entirety. (Ex. B, Letter from Stephen E.
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Reynolds to Adam Lenkowsky, dated July 17, 2013; Ex. C, Letter
from Stephen E. Reynolds to Adam Lenkowsky, dated August 23,
2013; Ex. D, Defendants’ Response to Plaintiff’s First Request for
Production of Documents.) After the Court’s entry of the Agreed
Protective Order, on September 12, 2013, Defendants produced 679
additional pages of documents responsive to Plaintiff’s discovery
requests. (Ex. E, Letter from Stephen E. Reynolds to Adam
Lenkowsky, dated September 12, 2013.)
On November 1, 2013, Plaintiff’s counsel sent a Rule 26(F)
letter seeking the following: (a) the identities of doctors whose names
were redacted from medical records; and (b) documents responsive to
Plaintiff’s Request Nos. 15-19, which sought “all records” including
work schedules of physicians assigned to the ECHO schedule,
emergency room, catheter lab, and cardiology consult call between
1992 and 2009. (Ex. F, Letter from Adam Lenkowsky to L. Alan
Whaley and Stephen Reynolds, dated November 1, 2013.) In response
to the letter, Defendants’ counsel called Plaintiff’s counsel on
November 11, 2013 to obtain clarification as to which unredacted
physicians’ names were being sought. (Ex. G, Affidavit of Reynolds
¶¶ 3 & 4.) Plaintiff’s counsel believed his client was only seeking the
names of doctors on the peer review committees — not the treating
physicians — but stated he would confirm with his client and confirm
that with Defendants. (Ex. G, Affidavit of Reynolds ¶ 5.) After that,
Defendants heard nothing from Plaintiff or his then-counsel regarding
discovery until just recently. (Ex. G, Affidavit of Reynolds ¶[¶] 6 & 7.)
On August 27, 2014, after being granted an extension of time to
respond to Defendants’ Motion for Summary Judgment, Defendants’
counsel received a letter from Plaintiff, dated August 25, 2014, seeking
supplementation of Defendants’ discovery responses served over one
year ago. (Ex. H, Affidavit of Whaley ¶ 3; Ex. I, Letter from Bertram
Graves, M.D. to L. Allen Whaley dated August 25, 2014). That same
day, Defendants’ counsel responded to Plaintiff, seeking clarification
as to the supplemental documents he was seeking and stating that
Defendants would respond to his other supplementation requests as
quickly as reasonably possible. (Ex. J, Letter from L. Allen Whaley to
Bertram Graves, M.D., dated August 27, 2014.) As promised, just a
few days later, on September 3, 2014, Defendants’ counsel sent a
follow-up letter via hand-delivery to Plaintiff addressing his specific
discovery requests, offer to deliver or make the additional documents
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available for pickup at Ice Miller’s offices given that most of the
documents are sensitive and confidential, and asking that Plaintiff
provide his email address and telephone number to facilitate quicker
communication. (Ex. K, Letter from L. Allen Whaley to Bertram
Graves, M.D., dated September 3, 2014.) Having received no
response from Plaintiff, on September 5[, 2014,] Defendants’ counsel
mailed Plaintiff another letter advising him that the additional
documents were now ready to be delivered to him or picked up by
him. (Ex. L, Letter from L. Allen Whaley to Bertram Graves, M.D.,
dated September 5, 2014.)
On September 10, [2014,] Defendants received a letter from
Plaintiff with a long recitation of his position regarding various
discovery issues and finally providing his email address and telephone
number. (Ex. H, Affidavit of Whaley ¶ 5; Ex. M, Letter from Bertram
Graves, M.D. to L. Allen Whaley, dated September 5, 2010.) On
September 12, [2014,] Defendants’ counsel called Plaintiff’s office and
sent him an email, asking Plaintiff to contact Defendants’ counsel to
arrange for delivery of the documents. (Ex. H, Affidavit of Whaley ¶
6; Ex. N, Email from L. Allen Whaley to Bertram Graves, M.D.,
Dated September 12, 2014.) Plaintiff did not respond to either of these
messages, so Defendants’ counsel, on his own initiative, hand-
delivered the documents to Plaintiff’s office, where they were accepted
and signed for by the receptionist. (Ex. H, Affidavit of Whaley ¶ 7;
Ex. O, Letter from L. Allen Whaley to Bertram Graves, M.D., dated
September 12, 2014; Ex. P, Receipt of Rhonda Graves, dated
September 12, 2014.) Despite having received these documents,
Plaintiff filed his Motion to Compel on that same date.
Appellant’s App. pp. 330-34 (emphases in original, footnotes omitted).
A. “Complete Medical Records”
[11] In support of his contention that the trial court abused its discretion in denying
his motion to compel, Dr. Graves argues that he was entitled to receive the
complete medical records upon which any disciplinary actions were based, but
that IU Health “simply produced the relevant portions of medical records that
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were used in peer review proceedings.” Appellant’s Br. p. 16. Dr. Graves
argues that his request was for “‘complete medical records’ of the treatment of
those patients, not just documents used in peer review proceedings.”
Appellant’s Br. p. 16. Dr. Graves alleges that these documents, which he
claims were “clearly relevant,” were never produced. Appellant’s App. p. 16.
[12] In response, IU Health argues that the trial court acted within is discretion in
denying Dr. Graves’s motion to compel because Dr. Graves had an opportunity
to, and did, obtain and use whatever portions of the medical records that he
thought were important while he was responding to the peer review
committees’ concerns. At that time, as a member of the IU Health medical
staff, he had access to the complete medical records of each patient case, and he
could, and did, use any or all of those records in his responses to the peer
review committees. Later, upon exercising his internal appeal rights, Dr.
Graves received whatever medical records that he and IU Health thought were
relevant to the hearing. As such, IU Health argues that the trial court correctly
determined that IU Health should not be compelled to produce copies of
documents, i.e., the complete medical records, which have “already been
produced.” Appellees’ Br. p. 10. IU Health also argues that the trial court
correctly determined that it should not be compelled to produce the complete
medical records because Dr. Graves “did not demonstrate the relevance of or
the need for the portions of the medical records that no one had relied on
during the peer review proceedings.” Appellees’ Br. p. 10.
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[13] Upon review, we cannot say that the trial court’s denial of Dr. Graves’s motion
to compel IU Health to produce the complete medical records amounted to an
abuse of the trial court’s discretion. As such, we conclude that the trial court
did not abuse its discretion in this regard.
B. Redacted Names
[14] Dr. Graves also argues that the trial court abused its discretion in denying his
request for the trial court to compel IU Health to produce copies of the medical
records that did not redact the physicians’ names. In making this argument,
Dr. Graves asserts that the physicians listed were not entitled to immunity
under Indiana Code section 34-30-15-32 because the medical records in question
were not documents created for the purpose of the peer review proceedings, but
rather were documents created during the ordinary course of treatment of the
patients. Dr. Graves also cites to our prior opinion in Ray v. St. John’s Health
Care Corp., 582 N.E.2d 464, 473 (Ind. Ct. App. 1991). In Ray, we concluded
that the hospital’s claim of privilege was not sufficient to sustain the broad
finding that all the documents in question were privileged because it was
unclear whether the hospital was motivated primarily by economic or
professional service considerations. Id.
2
Indiana Code section 34-30-15-3(a) provides that “Information that is otherwise discoverable
or admissible from original sources is not immune from discovery or use in any [health care
provider peer review committee] proceeding merely because it was presented during
proceedings before a peer review committee.”
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[15] For its part, IU Health argued that Dr. Graves “demonstrated no reason” why
the names of the other physicians named in the medical records should have
been left unredacted. Appellees’ Br. p. 10. In making this argument, IU Health
asserted that the trial court acted within its discretion in denying Dr. Graves’s
motion to compel because (1) it was appropriate to redact the physicians’ names
to preserve the physicians’ confidentiality interests; (2) the medical records were
the records of Dr. Graves’s patients, and the names of the other physicians
would have been known to Dr. Graves because they would have participated in
the patients’ care with Dr. Graves; and (3) the identities of the other physicians
who also treated Dr. Graves’s patients had nothing to do with the concerns
about the quality of care provided by Dr. Graves that were at issue before the
peer review committees. Further, IU Health asserts that to the extent that Dr.
Graves claims that he should have received more information because he
alleged in his complaint that Dr. Ross “initiated the whole process,” Graves has
presented no evidence that suggests that the peer review committees had any
improper motivation and an unsupported allegation of improper motives does
not justify the discovery of irrelevant information. Appellees’ Br. p. 11.
[16] Upon review, we cannot say that the trial court’s denial of Dr. Graves’s motion
to compel IU Health to produce unredacted copies of the medical records
amounted to an abuse of the trial court’s discretion. As was the case in
Subsection A, Dr. Graves has failed to establish that the trial court’s decision in
this regard is clearly against the logic and effect of the facts and circumstances
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before the trial court. As such, we conclude that the trial court did not abuse its
discretion in this regard.
II. IU Health’s Motion to Strike
[17] Dr. Graves also contends that the trial court abused its discretion in granting
the Appellees’ motion to strike certain portions of his amended affidavit.
The trial court has broad discretion in ruling on the admissibility of
evidence. Heritage Dev. of Ind., Inc. v. Opportunity Options, Inc., 773
N.E.2d 881, 886 (Ind. Ct. App. 2002). This discretion extends to
rulings on motions to strike affidavits on the grounds that they fail to
comply with the summary judgment rules. Id.
Indiana Trial Rule 56(E) provides in relevant part that affidavits
submitted in support of or in opposition to a summary judgment
motion “shall be made on personal knowledge, shall set forth such
facts as would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated therein.”
Further, “[s]worn or certified copies not previously self-authenticated
of all papers or parts thereof referred to in an affidavit shall be attached
thereto or served therewith.” Id. “The requirements of T.R. 56(E) are
mandatory—therefore, a court considering a motion for summary
judgment should disregard inadmissible information contained in
supporting or opposing affidavits.” Interstate Auction, Inc. v. Cent. Nat’l
Ins. Group, Inc., 448 N.E.2d 1094, 1101 (Ind. Ct. App. 1983).
Price v. Freeland, 832 N.E.2d 1036, 1039 (Ind. Ct. App. 2005).
[18] The trial court issued an order striking several paragraphs of Dr. Graves’s
amended affidavit, finding that the paragraphs in question contained
inadmissible hearsay. In reaching this finding, the trial court determined that
the statements contained in the paragraphs in question were not based on Dr.
Graves’s personal knowledge but rather were statements not made by
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declarants other than Dr. Graves, i.e., comments made by other individuals
either to or in front on Dr. Graves, which were offered by Dr. Graves for the
purpose of proving the truth of the matter asserted.
[19] Dr. Graves argues that the trial court abused its discretion in striking certain
portions of his affidavit on hearsay grounds. In support, Dr. Graves cites to the
Indiana Supreme Court’s opinion in Reeder v. Harper, 788 N.E.2d 1236 (Ind.
2003), claiming that the case provides that any affidavit containing hearsay
evidence should be considered during summary judgment proceedings so long
as the evidence could be presented in an admissible manner at trial. We believe
this to be an over-broad reading of the Indiana Supreme Court’s holding.
[20] In Reeder, the affidavit in question was an affidavit that was made by a witness
who died after creating the affidavit but prior to the summary judgment
hearing. The statements contained in the affidavit were based on the now-
deceased witness’s personal knowledge. In determining that the deceased
witness’s affidavit could be considered by the trial court during the summary
judgment proceedings, the Indiana Supreme Court held as follows:
In essence, an affidavit speaks from the time it is made. Hence, an
affidavit that would be inadmissible at trial may be considered at the
summary judgment stage of the proceedings if the substance of the
affidavit would be admissible in another form at trial. To hold
otherwise and embrace the view that the death of an affiant renders an
affidavit a nullity would result in summary judgment where the
opposing party had the misfortune to select the one short-lived witness
from among the many who may be able to testify to the same thing.
We do not believe that Indiana Trial Rule 56(E) should be read so
narrowly. As Moore’s Federal Practice points out in addressing the
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identically worded federal rule, Rule 56(e) requires that the affidavit be
based on personal knowledge and “set forth facts as would be
admissible at trial[.]” 11 James Wm. Moore et al., Moore’s Federal
Practice § 56.14[1][e][i] (3d ed.1997) (emphasis added). The rule does
not require that the affidavit itself be admissible. Id.
Id. at 1241-42 (footnote omitted).
[21] A plain reading of Reeder would seem to suggest that the Indiana Supreme
Court’s holding did not change the fact that affidavits submitted either in
support of or opposition to a motion for summary judgment must be based on
personal knowledge. Rather, the Indiana Supreme Court’s holding seems to
indicate that affidavits must both (1) be based on personal knowledge and (2) set
forth facts that would be admissible in some form at trial. This reading of
Reeder is consistent with the mandatory requirements of Indiana Trial Rule
56(E) which explicitly states that “[s]upporting and opposing affidavits shall be
made on personal knowledge, shall set forth such facts as would be admissible
in evidence, and shall show affirmatively that the affiant is competent to testify
to the matters stated therein. (Emphases added). Again, because the
requirements of Trial Rule 56(E) are mandatory, “a court considering a motion
for summary judgment should disregard inadmissible information contained in
supporting or opposing affidavits.” Price, 832 N.E.2d at 1039 (citing Interstate
Auction, 448 N.E.2d at 1101).
[22] Upon review, we determine that Dr. Graves’s affidavit is easily distinguishable
from the affidavit of the deceased witness that was presented in Reeder. Dr.
Graves presented his own affidavit in opposition to the Appellees’ motion for
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summary judgment. In this affidavit, certain paragraphs presented statements
which were derived from various documents or were allegedly made by other
individuals either to or in front of Dr. Graves. Dr. Graves then presented these
statements in his affidavit for the truth of the matter asserted. Unlike the
deceased witness in Reeder, Dr. Graves did not have personal knowledge of the
truth of the challenged statements. As such, although these statements might
have been admissible at trial in some other form, the trial court could not
consider them as part of Dr. Graves’s affidavit during the summary judgment
proceedings because Dr. Graves did not, himself, have personal knowledge of
the truth of the matters asserted. We therefore conclude that the trial court did
not abuse its discretion in striking the challenged paragraphs of Dr. Graves’s
affidavit.
[23] The trial court also found that certain other paragraphs should be struck from
Dr. Graves’s amended affidavit because the paragraphs in question contained
statements that were either irrelevant to Dr. Graves’s claims or were
inappropriate for consideration because the actions referred to therein occurred
outside of the applicable statute of limitations. Dr. Graves claims that the trial
court abused its discretion in striking certain paragraphs, the contents of which
he claims were simply biographical, involved continuing conduct, or
demonstrated that he was being treated differently from other IU Health
employees. Upon review, we cannot say that the trial court’s decision to strike
the challenged statements was clearly against the logic and effect of the facts
and circumstances before the trial court. Our review of the statements at issue
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shows that many of these statements were either previously struck for
containing inadmissible hearsay, irrelevant to the claims levied against the
Appellees, or allegedly occurred outside of the relevant time frame.
[24] Further, to the extent that some of the stricken paragraphs may have contained
statements that could potentially be relevant to Dr. Graves’s discrimination
claim, one of these statements was properly struck for containing inadmissible
hearsay, and the remaining statements reflect only generalized statements
regarding the ways in which Dr. Graves believed he was treated differently than
other physicians. These generalized statements do not appear to set forth any
specific facts as to how his treatment allegedly differed from that of other
physicians. Furthermore, to the extent the statements could be characterized as
setting forth specific facts in support of his discrimination claim, the statements
at issue do not include any indication as to why Dr. Graves was allegedly
treated differently from other physicians. Again, upon review, we cannot say
that the trial court’s decision to strike the challenged statements was clearly
against the logic and effect of the facts and circumstances before the trial court.
Accordingly, we conclude that the trial court did not abuse its discretion in this
regard.
III. Summary Judgment
[25] Dr. Graves last contends that the trial court erred in granting summary
judgment in favor of the Appellees. In raising this contention, Dr. Graves
argues that the trial court (1) incorrectly found that the Appellees were entitled
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to immunity on the breach of contract, contractual interference, and emotional
distress claims; (2) improperly granted summary judgment on the
discrimination claim; and (3) improperly found that the claims levied against
Drs. Kovacs and Ross were barred by the statute of limitations. For their part,
the Appellees contend that the trial court properly granted their motion for
summary judgment.
[26] Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary
judgment is appropriate when there are no genuine issues of material fact and
when the moving party is entitled to judgment as a matter of law. Heritage Dev.,
773 N.E.2d at 887.
“On appeal from the denial of a motion for summary judgment, we
apply the same standard applicable in the trial court. Summary
judgment is appropriate only if there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter
of law. Ind. Trial Rule 56(C). We therefore must determine whether
the record reveals a genuine issue of material fact and whether the trial
court correctly applied the law. A genuine issue of material fact exists
where facts concerning an issue, which would dispose of the litigation
are in dispute, or where the undisputed material facts are capable of
supporting conflicting inferences on such an issue. If the material facts
are not in dispute, our review is limited to determining whether the
trial court correctly applied the law to the undisputed facts. When
there are no disputed facts with regard to a motion for summary
judgment and the question presented is a pure question of law, we
review the matter de novo.”
Clary v. Lite Machines Corp., 850 N.E.2d 423, 430 (Ind. Ct. App. 2006) (quoting
Bd. of Tr. of Ball State Univ. v. Strain, 771 N.E.2d 78, 81-82 (Ind. Ct. App. 2002)
(internal quotation marks and some citations omitted)).
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A party seeking summary judgment bears the burden to make a prima
facie showing that there are no genuine issues of material fact and that
the party is entitled to judgment as a matter of law. American
Management, Inc. v. MIF Realty, L.P., 666 N.E.2d 424, 428 (Ind. Ct.
App. 1996). Once the moving party satisfies this burden through
evidence designated to the trial court pursuant to Trial Rule 56, the
non-moving party may not rest on its pleadings, but must designate
specific facts demonstrating the existence of a genuine issue for trial.
Id.
Heritage Dev., 773 N.E.2d at 888 (emphasis added). “On appeal, the trial court’s
order granting or denying a motion for summary judgment is cloaked with a
presumption of validity.” Van Kirk v. Miller, 869 N.E.2d 534, 540 (Ind. Ct.
App. 2007), trans. denied. However, we are not limited to reviewing the trial
court’s reasons for granting or denying summary judgment but rather may
affirm the trial court’s ruling if it is sustainable on any theory found in the
evidence designated to the trial court. See Alva Elec., Inc. v. Evansville-
Vanderburgh Sch. Corp., 7 N.E.3d 263, 267 (Ind. 2014) (citing Wagner v. Yates,
912 N.E.2d 805, 811 (Ind. 2009)).
A. Immunity
[27] In challenging the trial court’s award of summary judgment in favor of the
Appellees, Dr. Graves argues that the trial court erred in determining that the
Appellees were entitled to immunity from his breach of contract, contractual
interference, and emotional distress claims. For their part, the Appellees argue
the following:
To summarize: defendant IU Health is a professional review body
under [the Health Care Quality Improvement Act (“HCQIA”)],
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conducting peer review activity through committees of its medical
staff, and is entitled to immunity under that statute if certain statutory
prerequisites are met. Drs. Kovacs and Ross are also immune because
they were persons participating with the professional review body in
the professional review action that affected Dr. Graves, as outlined in
42 U.S.C. §§ 11111(a)(1) and 11112(a).
Appellee’s Br. p. 16. The Appellees argue that because the pertinent statutory
prerequisites were met, the Appellees were immune from liability from Dr.
Graves’s breach of contract, contractual interference, and emotional distress
claims. We agree with the Appellees.
1. The Health Care Quality Improvement Act (“HCQIA”)
[28] The question of whether the Appellees were entitled to immunity is governed
by the HCQIA which is codified at 42 U.S.C. sections 11101 through 11152.3
“Pursuant to 42 U.S.C. § 11111, except with respect to civil rights actions, a
professional review body ‘shall not be liable in damages under any law of the
United States or of any State (or political subdivision thereof) with respect to’
‘professional review actions.’” W.S.K. v. M.H.S.B., 922 N.E.2d 671, 689 (Ind.
Ct. App. 2010). The immunity further extends not only to the professional
review body, but also to (1) any person acting as a member or staff to the body,
(2) any person under a contract or other formal agreement with the body, and
3
Indiana’s version of the HCQIA, the Indiana Peer Review Act, is codified at Indiana Code
sections 34-30-15-1 through 34-30-15-23. However, our review will be limited to the federal
version because Dr. Graves only raises a challenge to the trial court’s order based off its
application of the federal version of HCQIA, which undisputedly applies in Indiana.
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(3) any person who participates with or assists the body with respect to the
action. 42 U.S.C.A. § 11111(a)(1).
[29] A “professional review action” is defined as follows:
[A]n action or recommendation of a professional review body which is
taken or made in the conduct of professional review activity, which is
based on the competence or professional conduct of an individual
physician (which conduct affects or could affect adversely the health or
welfare of a patient or patients), and which affects (or may affect)
adversely the clinical privileges, or membership in a professional
society, of the physician. Such term includes a formal decision of a
professional review body not to take an action or make a
recommendation described in the previous sentence and also includes
professional review activities relating to a professional review action.
42 U.S.C.A. § 11151(9). Immunity attaches under the HCQIA when the review
action was taken:
(1) in the reasonable belief that the action was in the furtherance of
quality health care,
(2) after a reasonable effort to obtain the facts of the matter,
(3) after adequate notice and hearing procedures are afforded to the
physician involved or after such other procedures as are fair to the
physician under the circumstances, and
(4) in the reasonable belief that the action was warranted by the facts
known after such reasonable effort to obtain facts and after meeting the
requirement of paragraph (3).
42 U.S.C.A. § 11112(a). “A professional review action shall be presumed to
have met the preceding standards necessary for the protection set out in section
11111(a) of this title unless the presumption is rebutted by a preponderance of
the evidence.” Id. Accordingly, in this case, the burden fell upon Dr. Graves to
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show that the Appellees failed to comply with the requirements and are thereby
were not entitled to immunity.
2. Application of the HCQIA to the Instant Matter
[30] In awarding summary judgment in favor of the Appellees, the trial court found
as follows:
10. Under the HCQIA, this Court finds that the [Appellees] are
immune from [Dr. Graves’s] breach of contract, tortious interference
with a contract, and emotional distress claims if IU Health’s peer
review actions were taken in the reasonable belief that they furthered
quality health care, and were based on reasonable investigation and on
fair and adequate notice and hearing procedures. There is a statutory
presumption that IU Health’s peer review actions have met these
standards, which [Dr. Graves] must overcome if he is to avoid
summary judgment. [W.S.K., 92 N.E.2d at 690].
11. Based on the designated evidence, there is no doubt that the peer
review actions of IU Health, Dr. Kovacs and Dr. Ross fully satisfy the
HCQIA’s immunity standards. First, the actions were meant to
further quality health care. The designation of evidence,
recommendations to the Credentials Committee and the Medical Staff
Executive Committee, the deliberations of those committees and their
meeting minutes, the notice letters to [Dr. Graves] which describe the
committees’ concerns, the committees’ recommendations, and the IU
Health board’s decisions were all based on quality issues and a concern
for patient safety.
12. The designated evidence demonstrates that the [Appellees]
satisfied the second requirement of the HCQIA immunity standards
that there be a reasonable effort to obtain facts. The evidence shows
that the IU Health peer committees did not rush to judgment, but
thoroughly investigated the incidents and complaints when they arose,
sought input from [Dr. Graves’s] co-chief, requested [Dr. Graves’s]
written response, and even extended [Dr. Graves’s] provisional
privileges while they investigated and evaluated the facts. (See
Exhibits 6, 9, 10, 12, 15, 17, 20, 21, 22, and 23).
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13. The third requirement that “adequate notice and hearing
procedures” be provided has been satisfied. [Dr. Graves] was first put
on notice in December of 2008 when he was informed of his
conditional six-month renewal. (See Exhibit 6). [Dr. Graves] received
ample and detailed notice of the concerns about his manner of
practicing and its negative effect on patient safety, he was given a fair
and reasonable opportunity to respond to those concerns (including an
extension of his conditional staff privileges); and was provided much
more than adequate time to prepare for and participate in the IU
Health internal appeal process.
14. Finally, the fourth element requires that the peer review action be
taken “in the reasonable belief that the action was warranted by the
facts know[n] after such reasonable effort to obtain facts and after
meeting the requirement of paragraph 3”. The designated evidence[]
demonstrates that the participants in the peer review process
reasonably thought their action was warranted and that their concerns
about patient safety and quality of care issues were evidence[d] from
the beginning when [Dr. Graves’s] staff privileges were conditionally
issued for only six months.
15. Because [Dr. Graves] has failed to rebut the presumption that the
professional review action meets the preceding standards by a
preponderance of the evidence, this Court finds that [the Appellees]
are immune from [Dr. Graves’s] breach of contract, tortious
interference with contract, and emotional distress claims as all the
requirements of the HCQIA have been satisfied. Thus, the immunity
provisions of § 11112(a) therefore apply to [Dr. Graves’s] breach of
contract, tortious interference with contract and emotional distress
claims. In addition, the immunity analysis under the Indiana Peer
Review Act, I.C. § 34-30-15-1 to 34-30-15-23 is essentially the same as
that under the HCQIA. [W.S.K., 922 N.E.2d at 690]. Thus, this
Court finds that the [Appellees] are entitled to immunity under the
Indiana statute also.
Appellant’s App. pp. 18-19A (brackets added).
[31] Dr. Graves raises two procedural reasons on appeal outlining why he believes
that the trial court erred in finding that the Appellees were entitled to immunity
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under the HCQIA. First, Dr. Graves argues that he did not receive a full
opportunity to call, examine, or cross-examine witnesses because his hearing
ran late. Specifically, Dr. Graves argues that he did not have an opportunity to
present all of the witnesses that he wanted to. The designated evidence
demonstrates that Dr. Graves did not raise any procedural objections to the
hearing process or allege at the time of the hearing that the process was unfair.
Further, Dr. Graves does not specify which witnesses that he was unable but
intended to call, but rather merely claims that the witnesses had gone home.
Dr. Graves has presented no designated evidence indicating that he requested a
continuance for the purpose of presenting additional witness testimony on his
behalf or that he made any other procedural objections at the time of the review
hearing. As such, in light of the general rule that a party is responsible for
securing his own witnesses and preserving any procedural objections, see
generally Bledsoe v. State, 263 Ind. 265, 268-270, 329 N.E.2d 592, 594-95 (1975)
(providing that the absence of a defense witness did not entitled the defendant
to relief where there was no showing of reasonable diligence in procuring the
witness at trial and no request for a continuance was made), we conclude that
the trial court correctly determined that Dr. Graves failed to rebut the
presumption that he received a fair hearing by a preponderance of the evidence.
[32] Dr. Graves also argues that he did not receive a fair hearing because Dr.
Kovacs responded to the review committees’ questions after only reviewing the
relevant medical records but without discussing the relevant cases with Dr.
Graves himself. Dr. Graves essentially argues that Dr. Kovacs could not
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therefore present an informed opinion because the medical records presented a
version of events that differed from Dr. Graves’s version of the events in
question. Dr. Graves, however, cites to no authority which suggests that Dr.
Kovacs was required to discuss the matter with Dr. Graves personally, that the
normal course of action in similar circumstances would include discussing the
allegations with someone in Dr. Graves’s position, or that it was improper for
Dr. Kovacs to base his opinion on his review of the relevant medical records.
The designated evidence indicates that Dr. Graves had the opportunity to cross-
examine all witnesses who spoke before the review committees. Dr. Graves
fails to explain how he was harmed by Dr. Kovacs’s alleged failure to discuss
the relevant cases with Dr. Graves ahead of time, given that he had the
opportunity to explore whether Dr. Kovacs’s opinions would have changed
based on any potential information shared by Dr. Graves during his cross-
examination of Dr. Kovacs. Upon review, we again conclude that the trial
court correctly determined that Dr. Graves failed to rebut the presumption that
he received a fair hearing by a preponderance of the evidence. 4
4
Furthermore, to the extent that Dr. Graves argues that the trial court erred in granting
summary judgment in favor of the Appellees because it failed to specifically address the merits
of his breach of contract and contractual interference claims, we find no merit in this argument
because the trial court properly found that the Appellees were immune from liability from these
claims and Dr. Graves has provided no authority indicating that these claims would supersede
the provisions of the HCQIA.
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B. Dr. Graves’s Discrimination Claim
[33] In challenging the trial court’s award of summary judgment in favor of the
Appellees, Dr. Graves argues that the trial court erred in determining that he
failed to present a prima facie case of discrimination.
In order to establish a prima facie case of discrimination, [Dr. Graves]
must present by a preponderance of the evidence that: (1) he was a
member of a protected class; (2) he was qualified for the job in
question; (3) he suffered an adverse employment action; and (4) the
defendant treated other similarly-situated employees who were not
members of the class more favorably. [McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802, 93 S. Ct. 1817 (1973)]; [Gonzalez v. Ingersoll
Milling Machine Co., 133 F.3d 1025, 1032 (7th Cir. 1998)]. If a prima
facie case is established, the burden shifts to the defendant to produce
evidence of a legitimate, non-discriminatory reason for its decision. Id.
If the defendant produces such a reason, the plaintiff has an
opportunity to show that the articulated explanation was in fact
pretext. McDonnell Douglas, 411 U.S. at 804, 93 S. Ct. 1817; Gonzalez,
133 F.3d at 1032. A pretext is a “lie, specifically a phony reason for
some action.” Jackson v. E.J. Brach Corp., 176 F.3d 971, 983 (7th
Cir.1999).
Paul v. Theda Med. Ctr., Inc., 465 F.3d 790, 794 (7th Cir. 2006) (emphasis in
original).
[34] In determining that the Appellees were entitled to summary judgment on Dr.
Graves’s discrimination claim, the trial court found as follows:
17. Here, [the Appellees] have produce[d] multiple exhibits providing
legitimate, non-discriminatory reasons for its decisions. One example,
Exhibit 21, a Quality and Performance Review Committee review of a
previous meeting’s minutes, list its legitimate, non-discriminatory
reasons for recommending denial of Dr. Graves[’s] staff privileges as
including but not limited to: lack of responsiveness and appreciation
for the need to quickly and accurately resolve immediate and urgent
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patient care needs, persistent pattern of unprofessional behavior,
failure to remedy concerns over lack of responsiveness, and potential
for patient safety concerns. Because [Dr. Graves] has failed to provide
evidence that the [Appellee’s] explanation was pretext, this Court
grants summary judgment for [the Appellees] on [Dr. Graves’s] 42
U.S.C. § 1981 claims.
Appellant’s App. pp. 19A-19B (brackets added).
[35] The appellate record indicates that, in addition to Exhibit 21, the Appellees
designated a substantial amount of evidence outlining legitimate, patient-care
related, reasons in support of the recommendation that IU Health not renew
Dr. Graves’s staff privileges. In response to this overwhelming amount of
designated evidence, Dr. Graves did not present any specific information
relating to his claim that the stated reasons for recommending the nonrenewal
of his staff privileges were pretext. Dr. Graves merely presented sweeping,
unsubstantiated, and unsupported allegations which he claims created a prima
facie showing that he was treated differently than his counterparts. However, as
we stated above, these statements were so generalized in nature that they failed
to indicate specifically how or why he was allegedly treated differently than
other physicians. Upon review, we conclude that Dr. Graves failed to designate
any evidence which would raise a genuine issue of material fact as to whether
the reasons proffered by the Appellees for the recommendation that IU Health
not renew Dr. Graves’s staff privileges were pretext.
C. Statute of Limitations
[36] Dr. Graves also argues that the trial court erred in finding that an award of
summary judgment was appropriate for Drs. Kovacs and Ross because, with
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respect to Drs. Kovacs and Ross, the tortious interference with a contract claim
levied by Dr. Graves was barred by the applicable statute of limitations.
Initially, we note that it seems unnecessary to address Dr. Graves’s challenge to
summary judgment on the statute of limitations grounds in light of our
conclusion that Drs. Kovacs and Ross were entitled to statutory immunity from
Dr. Graves’s tortious interference with a contract claim. However, to the extent
it is necessary to address the merits of this challenge, we will now do so.
[37] It has long been established that “[t]he claimant bears the burden to bring suit
against the proper party within the statute of limitations.” Wathen v. Greencastle
Skate Place, Inc., 606 N.E.2d 887, 894 (Ind. Ct. App. 1993). We noted in our
prior opinion relating to the parties that Dr. Graves did not dispute that his
claim for tortious interference with a contract was governed by a two-year
statute of limitations. Graves, 990 N.E.2d at 978.
[38] In determining that Drs. Kovacs and Ross were entitled to an award of
summary judgment in this regard, the trial court found as follows:
18. Last, [Appellees] assert that Richard Kovacs, M.D. and Edward
Ross, M.D. are specifically entitled to summary judgment on [Dr.
Graves’s] tortious interference with [a] contract claim because the
applicable statute of limitations has expired. This tortious interference
claim has a two-year statute of limitations. C&E Corp. v. Ramco
Industries, Inc., 717 N.E.2d 642, 643-56 (Ind. Ct. App. 1999).
19. [Dr. Graves’s] tortious interference with [a] contract claim is
barred by the two-year statute of limitations because the claim was
brought on March 7, 2012, and Drs. Kovacs[’s] and Ross[’s]
involvement with the contract ended on March 2, 2010, and the claim
does not relate back to the claims against [IU Health].
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20. Under Indiana law, “[t]he claimant bears the burden to bring suit
against the proper party within the statute of limitations.” [Wathen,
606 N.E.2d at 894]. In Seach v. Armbruster, 725 N.E.2d 875, 877 (Ind.
Ct. App. 2000), as a result of injuries from a child birth on May 10,
1995, the plaintiffs filed their initial complaint on April 29, 1997[,]
alleging negligence against a hospital, several doctors, a nurse
identified as Deanna Floyd, and “currently unidentified attending
nurses Jane Does numbers one and two. A little over a month later,
on June 3, 1997, the plaintiffs amend[ed] their claim to name labor
and delivery nurse Deborah Armbruster as a defendant for the first
time. Id. Nurse Armbruster moved for summary judgment, arguing
that the action against her was barred by the statute of limitations
because she was not notified within two years of the date the alleged
injury occurred. Id. The Court [of] Appeals affirmed the trial court’s
granting of summary judgment for the Nurse finding that actions
against the nurse did not relate back to the filing of the complaint
against the hospital. Id. at 878-879. Similarly, in Conrad v. Waugh, 474
N.E.2d 130 (Ind. Ct. App. 1985), the Court of Appeals reversed the
trial court’s denial of summary judgment to a doctor who was
belatedly added as a defendant to a complaint against a hospital.
21. As in Seach and Conrad, in this case, Dr. Graves’[s] second
amended complaint does not relate back to his earlier complaint
against IU Health. Thus, this Court finds that [Dr. Graves] failed to
timely file his complaint within the two year statute of limitations
against Dr. Kovacs and Dr. Ross. Drs. Kovacs[’s] and Ross[’s] last
involvement with the contract at issue ended on March 2, 2010[,] and
the Plaintiff did not file his Amended Complaint adding Drs. Kovacs
and Ross to the complaint until March 7, 2012. Thus, this Court finds
that [] Drs. Kovacs and Ross are specifically entitled to summary
judgment on [Dr. Graves’s] tortious interference with [a] contract
claim because [the claim was] not filed within the statute of limitations
period.
Appellant’s App. pp. 19B-19C (all but the ninth set of brackets added).
[39] With respect to whether an amended complaint relates back to an original
complaint, Indiana Trial Rule 15(C) provides that “[w]henever the claim or
defense asserted in the amended pleading arose out of the conduct, transaction,
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or occurrence set forth or attempted to be set forth in the original pleading, the
amendment relates back to the date of the original pleading.” However, Trial
Rule 15(C) goes on to provide the following:
An amendment changing the party against whom a claim is asserted
relates back if the foregoing provision is satisfied and, within one
hundred and twenty (120) days of commencement of the action, the
party to be brought in by amendment:
(1) has received such notice of the institution of the action that he will
not be prejudiced in maintaining his defense on the merits; and
(2) knew or should have known that but for a mistake concerning the
identity of the proper party, the action would have been brought against
him.
(Emphasis added). In the instant matter, there is no allegation that Dr. Graves
was mistaken as to the identity of the proper party, i.e., the identity of Drs.
Kovacs and Ross. As such, we conclude that the trial court properly
determined that Dr. Graves’s Second Amended Complaint, which was filed
after the expiration of the applicable two-year statute of limitation, did not
relate back to Dr. Graves’s original complaint against IU Health. We therefore
further conclude that the trial court did not err in determining that Drs. Kovacs
and Ross were entitled to an award of summary judgment with respect to Dr.
Graves’s tortious interference of a contract claim.
Conclusion
[40] In sum, we conclude that the trial court acted within its discretion in denying
Dr. Graves’s motion to compel and in striking certain paragraphs from Dr.
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Graves’s affidavit. We also conclude that the trial court did not err in granting
summary judgment in favor of the Appellees. Accordingly, we affirm the
judgment of the trial court.
[41] The judgment of the trial court is affirmed.
Vaidik, C.J., and Kirsch, J., concur.
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