Long v. Chelsea Community Hospital

557 N.W.2d 157 (1996) 219 Mich. App. 578

Reuel S. LONG, M.D., and Judith A. Long, Plaintiffs-Appellants,
v.
CHELSEA COMMUNITY HOSPITAL, John R.C. Wheeler, Ph.D., Susan M. Cischke, Frank X. Colligan, M.D., C. Wendell Dunbar, William C. Emhiser, John W. Merkel, Charles A. Skelton, Sally A. Stommen, D.D.S., Willard H. Johnson, Michael W. Smith, M.D., and F.S. Van Reesema, M.D., Defendants-Appellees.

Docket No. 182219.

Court of Appeals of Michigan.

Submitted June 11, 1996, at Lansing. Decided October 25, 1996, at 9:15 a.m. Released for Publication January 2, 1997.

Goodman, Eden, Millender & Bedrosian by Richard A. Soble and Elizabeth A. Stafford, Detroit, for plaintiffs-appellants.

Kitch, Drutchas, Wagner & Kenney, P.C. by Susan Healy Zitterman and Brian R. Garves, Detroit, for defendants-appellees.

Before YOUNG, P.J., and CORRIGAN and M.J. CALLAHAN,^[*] JJ.

CORRIGAN, Judge.

In this action alleging that a private hospital revoked medical staff privileges with malice, plaintiffs appeal by right the order granting defendants' motion for summary disposition under MCR 2.116(C)(8) and (C)(10). This case raises an issue of first impression: whether M.C.L. § 331.531; M.S.A. § 14.57(21) creates a private cause of action for malice. Because no such cause of action exists, we affirm.

In 1979, plaintiff^[1] Reuel S. Long, M.D., accepted defendant Chelsea Community Hospital's offer to become the Director of Anesthesia and Operating Room Services, a staff position. Defendant hospital is a nonprofit Michigan corporation and a private hospital. After Long joined the staff, he related various accusations to the hospital board (the individual defendants comprise the hospital's board)^[2] about purported misconduct of defendant Willard H. Johnson, then the hospital's president. In response, Johnson allegedly sought to have Long removed from the staff by changing the anesthesia services at the hospital. The board ultimately voted to award an exclusive contract for anesthesia services to Anesthesia Associates of Ann Arbor. Plaintiff was not associated with the Ann Arbor anesthesiologists. Following that award, the board voted to terminate plaintiff's position in 1991.

Plaintiff then sued the hospital for, among other things, wrongful discharge and breach of contract. While that litigation was pending, the board voted to terminate plaintiff's staff privileges at the hospital. The hospital settled with plaintiff for $150,000; the settlement specifically excluded any claims arising from the termination of plaintiff's staff privileges.

Plaintiffs then filed a second action, alleging breach of contract, promissory estoppel, loss of consortium, and that defendants acted with malice under M.C.L. § 331.531; M.S.A. § 14.57(21) (hereinafter § 531). Defendants moved for summary disposition rather than answering plaintiff's complaint. The court determined that the statute upon which plaintiff relied did not give rise to a private cause of action for malice and noted that plaintiff had failed to support his allegation that defendants acted with malice. The court also declined to review plaintiff's breach of contract and promissory estoppel claims because it would interfere with the hospital's staffing decisions. The court granted defendants' motion and plaintiff appeals.

Defendants brought their motion in part under MCR 2.116(C)(8). A summary disposition motion under MCR 2.116(C)(8) tests a complaint's legal sufficiency on the pleadings alone. Simko v. Blake, 448 Mich. 648, 654, 532 N.W.2d 842 (1995). If no cause of action exists under the statute, then plaintiff has failed to state a claim for which relief may be granted, and summary disposition is appropriate because that count would be unenforceable as a matter of law and because no amount of factual development could possibly justify a right to recovery. Wade v. Dep't of Corrections, 439 Mich. 158, 163, 483 N.W.2d 26 (1992).

Plaintiff first asserts that defendants are not immune from liability because they acted with malice and contends that Michigan statutory law creates a private cause of action for malice under such circumstances. Whether a plaintiff has a cause of action under the statute presents a question of statutory interpretation. Grand Traverse Co. v. Michigan, 450 Mich. 457, 463-464, 538 N.W.2d 1 (1995). Statutory interpretation is a question of law, which we review de novo. DeKoning v. Dep't of Treasury, 211 Mich. App. 359, 361, 536 N.W.2d 231 (1995).

When courts construe statutes, their primary goal is to ascertain and give effect to legislative intent. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 212, 501 N.W.2d 76 (1993); State Treasurer v. Schuster, 215 Mich.App. 347, 351, 547 N.W.2d 332 (1996). This Court should first look at the specific statutory language to determine the intent of the Legislature. House Speaker v. State Administrative Bd., 441 Mich. 547, 567, 495 N.W.2d 539 (1993). The Legislature is presumed to intend the meaning plainly expressed in the statute. In re Austin Estate, 218 Mich.App. 72, 553 N.W.2d 632 (1996). Judicial construction of a statute is not permitted where the plain and ordinary meaning of the language is clear. Id.; Dep't of Treasury v. Comerica Bank, 201 Mich.App. 318, 322, 506 N.W.2d 283 (1993).

The statute at issue, M.C.L. § 331.531; M.S.A. § 14.57(21), provides:

(1) A person, organization, or entity may provide to a review entity information or data relating to the physical or psychological condition of a person, the necessity, appropriateness, or quality of health care rendered to a person, or the qualifications, competence, or performance of a health care provider.

(2) As used in this section, "review entity" means 1 of the following:

(a) A duly appointed peer review committee of the state, of a state or county association of health care professionals, of an officially constituted health care facility, or of a health care association.

* * * * * *

(3) A person, organization, or entity is not civilly or criminally liable;

(a) For providing information or data pursuant to subsection (1).

(b) For an act or communication within its scope as a review entity.

(c) For releasing or publishing a record of the proceedings, or the reports, findings, or conclusions of a review entity, subject to [M.C.L. § 331.532; M.S.A. § 14.57(22) and M.C.L. § 331.533; M.S.A. § 14.57(23).]

(4) The immunity from liability provided under subsection (3) does not apply to a person, organization, or entity that acts with malice.

Plaintiff argues that the statute creates a private right of action for malice under the present circumstances. The common law recognizes no cause of action for malice on these facts. If the common law provides no right to relief, and the right to such relief is instead provided by statute, then plaintiffs have no private cause of action for enforcement of the right unless: (1) the statute expressly creates a private cause of action or (2) a cause of action can be inferred from the fact that the statute provides no adequate means of enforcement of its provisions. Bell v. League Life Ins. Co., 149 Mich.App. 481, 482-483, 387 N.W.2d 154 (1986). It follows that courts must dismiss a private cause of action under a statute creating a new right unless the statute expressly created the private cause of action or the cause of action may be inferred because the statute does not provide adequate means to enforce its provisions. Forster v. Delton School Dist., 176 Mich.App. 582, 585, 440 N.W.2d 421 (1989).

The statute does not expressly create a private cause of action for malice. Accordingly, the second condition is in question here: whether a private cause of action may be inferred because the statute does not provide adequate means to enforce its provisions. As evidenced by the statutory language, § 531 provides immunity to entities unless they act with malice. The statute's implicit purpose is to protect the participants in the peer review process. Indeed, the statute offers immunity to entities for their actions involving peer review. The statute is not designed to provide a comprehensive scheme of enforcement of the rights and duties it creates for the simple reason that it creates no right of action for malice. The statute is designed to protect entities from liability, not to create a new right of a private cause of action for malice. Accordingly, whether the statute provides adequate means to enforce its provisions regarding malice is not at issue here.

Moreover, recognition of a private cause of action for malice under the statute would frustrate and undermine the legislative purpose of providing immunity. A court's decision regarding private rights of action must be consistent with legislative intent while furthering the Legislature's purpose in enacting the statute. Gardner v. Wood, 429 Mich. 290, 301, 414 N.W.2d 706 (1987). The Legislature plainly did not intend to create a private cause of action. Its intent to confer certain immunities would be frustrated if this Court distorted its careful choice of language by recognizing a private cause of action for malice. We decline to recognize such a private cause of action under the statute. Accordingly, plaintiff has no cause of action for malice and the circuit court correctly granted summary disposition to defendants.

Plaintiff next alleges that this Court previously has reviewed such malice claims, citing Veldhuis v. Allan, 164 Mich.App. 131, 416 N.W.2d 347 (1987), and Regualos v. Community Hosp., 140 Mich.App. 455, 364 N.W.2d 723 (1985). Plaintiff contends that those cases support the availability of private causes of action under § 531. Contrary to plaintiff's argument, neither case held that a private cause of action exists. In Veldhuis, this Court ruled that the plaintiff failed to present evidentiary support for the malice allegations. Veldhuis, supra at 137, 416 N.W.2d 347. Similarly, in Regualos, this Court found that the plaintiff had not provided clear and convincing proof needed to establish a genuine issue of material fact regarding actual malice. Regualos, supra at 462-463, 364 N.W.2d 723. The above rulings do not establish that the statute permits a private cause of action for malice. Accordingly, those cases do not constitute a basis for plaintiff's claim in this case. Plaintiff's reliance on B.F. Farnell Co. v. Monahan, 377 Mich. 552, 141 N.W.2d 58 (1966), is likewise misplaced. Farnell applies to statutes that set forth criminal penalties; the statute at issue here does not invoke criminal penalties.

Plaintiff next asserts that the court prematurely granted summary disposition to defendants under MCR 2.116(C)(10), contending that he was entitled to conduct discovery before the court granted the motion. Given the above reasoning, we need not address this issue.^[3]

Plaintiff next asserts that the court did not accept his factual allegations as true. A review of the circuit court's opinion, however, indicates that the court did accept plaintiff's allegations as true. Plaintiff's claim on this issue is thus without merit. Additionally, the court rule requires the moving party to substantiate its allegations. MCR 2.116(G). Therefore, the court correctly found that plaintiff's "bald assertion" that defendants' true motivation was to retaliate and to silence him was insufficient to survive defendants' motion for summary disposition.

Additionally, plaintiff states that defendants had a binding contractual obligation to hold a hearing and to find that plaintiff was incompetent before terminating his employment. In their motion for summary disposition, defendants produced the affidavit of defendant Johnson, who averred that the hospital is a private hospital. Courts may not review a private hospital's staffing decisions. Sarin v. Samaritan Health Center, 176 Mich.App. 790, 795, 440 N.W.2d 80 (1989); Regualos, supra at 461, 364 N.W.2d 723; Hoffman v. Garden City Hosp., 115 Mich.App. 773, 321 N.W.2d 810 (1982); Muzquiz v. W.A. Foote Memorial Hosp., Inc., 70 F.3d 422, 430 (C.A. 6, 1995). A private hospital is empowered to appoint and remove its members at will without judicial intervention. Sarin, supra at 792-793, 440 N.W.2d 80; Hoffman, supra at 778, 321 N.W.2d 810. A private hospital has the right to exclude any doctor from practicing within it. Hoffman, supra at 778-779, 321 N.W.2d 810.

The above law is limited to disputes that are contractual in nature. We decline to articulate a broad principle that a private hospital's staffing decisions may never be judicially reviewed. Indeed, in doing so, we reiterate the proposition from Sarin that, under some circumstances, a court may consider a hospital's decisions without violating the nonreviewability principle. Sarin, supra at 795, 440 N.W.2d 80. Private hospitals do not have carte blanche to violate the public policy of our state as contained in its laws. Had plaintiff in this case asserted that defendants violated state or federal law, we may have chosen to review his claim. In this case, however, plaintiff did not assert a violation of civil rights or a violation of a state statute. The same is true in some of the cited cases.^[4]

Further, previous decisions support this reasoning. In Hoffman, supra, this Court quoted with approval the proposition that hospital authorities may refuse to appoint a physician to its medical staff, may decline to renew an expired contract, and may exclude a physician from practicing in the hospital— all without judicial review of those decisions. Hoffman, supra at 779, 321 N.W.2d 810. That principle does not, however, permit hospital authorities to act contrary to state or federal law. Moreover, although the Hoffman Court refused to review the hospital's staffing decisions, the Court nonetheless examined the plaintiffs' claims of restraint of trade under M.C.L. § 445.762; M.S.A. § 28.62. Id. at 779, 321 N.W.2d 810. Likewise, in Muzquiz, the Court refused to review the plaintiff's breach of contract claim under the nonreviewability standard in Sarin, but separately reviewed his claims of discrimination contrary to state and federal law. Muzquiz, supra at 429-430.

Plaintiff further argues that his claim is not a constitutional due process argument, but rather is based on a breach of defendants' bylaws, and thus this Court should review it. Plaintiff's claim on this issue fails in light of Sarin. A breach of contract and breach of bylaws claim would necessarily invoke a review of the hospital's decision to terminate its employees. Sarin, supra at 794, 440 N.W.2d 80. This Court in Sarin determined that the review of such claims would intervene in a hospital's decisions and would interfere with the peer review process. Thus, this Court refused to review the claims of the Sarin plaintiff, reiterating that judicial review of a private hospital's decision to deny staff privileges to a physician was not available. Id. at 795, 440 N.W.2d 80.

Plaintiff next argues that his circumstances fall within the exception outlined in Sarin: "[T]here may be some situations where a court should be able to consider a hospital's action without violating the principle of nonreviewability...." Id. Because plaintiff failed to provide a copy of the bylaws required under MCR 2.113(F)(1), this Court has no way of reviewing whether the exception applies. This Court is limited to reviewing the record presented to the lower court. MCR 7.210(A); Amorello v. Monsanto Corp., 186 Mich.App. 324, 330, 463 N.W.2d 487 (1990).

Regarding plaintiff's promissory estoppel claim, a claim of promissory estoppel is akin to a contract claim. State Bank of Standish v. Curry, 442 Mich. 76, 83-84, 500 N.W.2d 104 (1993). Therefore, the rules from Sarin, supra, and Hoffman, supra, where this Court has expressed its reluctance to review a private hospital's staffing decisions, preclude review of this claim.

Plaintiff finally claims that the circuit court should not have dismissed Judith Long's loss of consortium claim. A derivative claim for loss of consortium stands or falls with the primary claims in the complaint. Moss v. Pacquing, 183 Mich.App. 574, 583, 455 N.W.2d 339 (1990). Because plaintiff's other claims failed, the loss of consortium claim must likewise fail.

Affirmed.

NOTES

[*] Circuit Judge, sitting on the Court of Appeals by assignment.

[1] Because plaintiff Judith Long's claims are derivative, "plaintiff" will refer to Reuel S. Long, M.D., only.

[2] Defendants are referred to collectively in this opinion unless otherwise noted.

[3] We note, however, that at oral argument, defendants' counsel conceded that defendants had made an agreement with plaintiff not to advance discovery until after the court heard their motion under MCR 2.116(C)(8). In view of the parties' agreement, plaintiff should not be faulted for not conducting discovery.

[4] For example, in Regualos, supra, the plaintiff asserted that the defendant hospital should not have terminated his staff privileges to interpret pulmonary function tests and argued that the hospital did not follow proper procedure in doing so. The plaintiff did not raise issues in addition to his contract claims. The Sarin plaintiff raised strictly breach of contract claims, alleging a violation of hospital bylaws, tortious interference with his contract, and tortious interference with advantageous business relationships. Sarin, supra at 791-792, 440 N.W.2d 80.