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Hospital suspends medical staff privileges: Dr. failed to exhaust remedies: case on point: Lowrey v. Fairfield Medical Center, 2009-ohio-34470 (8/28/2009)-OH.

ISSUE: Must physicians, whose hospital medical staff privileges, are suspended or revoked exhaust their administrative remedies at the hospital level before filing suit in court?

CASE FACTS: After a series of incidents, Dr. Charles Lowrey, who had medical privileges at Fairfield Medical Center, was notified that because the incidents involved his conduct at the hospital, the Hospital's Board or Directors (Board) recommended that his medical staff privilege be suspended. The hospital and Dr. Lowrey entered into a January 8, 2003, Settlement Agreement which provided, inter alia, that Dr. Lowrey could reapply for staff privileges and that his application "will be evaluated on the same basis as any other physician applying for Medical Staff Appointment and Clinical Privileges." On December 17, 2004, Dr. Lowrey filed suit against the hospital alleging, inter alia, breaches of the Settlement Agreement by the hospital. Through amending his complaint, Dr. Lowery eventually alleged eleven counts against the hospital. All but two of the counts were eliminated via voluntary dismissal by Dr, Lowrey, summary judgment, or both. This left only Counts one and Six. In Count One, Dr. Lowrey alleged that the hospital breached several paragraphs of the Settlement Agreement by "failing to supply [his] patients with appropriate contact information and by failing to inform [him] of patient requests." In Count Six, he alleged that the hospital breached Paragraph Two of the Settlement Agreement by failing to consider his application for medical staff appointment and clinical privileges at the hospital "on the same basis as any other physician applying for.... privileges." On September 26, 2003, Dr. Lowrey signed a Consent and Release of Applicant and reapplied for Medical Staff privileges on October 2, 2003. Oil March 3, 2004, Dr. Dominguez advised Dr. Lowrey that "the Credentials Committee has completed its review for appointment and privileges and has forwarded a recommendation to the Medical Executive Committee not recommending employment and privileges." On March 18, 2004, Dr Lowrey was sent a Notice of Adverse Recommendation. On March 23, 2004, Dr. Lowrey's attorney questioned the basis of the Credentials Committee's recommendation to not grant privileges to Dr. Lowrey and on April 12, 2004, Dr. Lowrey requested a hearing to take place after June 12, 2004, relating to the Credential Committee's recommendation to not grant medical staff privileges. Dr. Lowrey cancelled the hearing, withdrew his application for privileges and filed your separate suits against hospital. The trial court sustained the hospital's motion for summary judgment. Dr. Lowrey appealed.

COURT'S OPINION: The Court of Appeals of Ohio affirmed the order of the lower court, which granted summary judgment to the hospital. The court held, inter alia, that before Dr. Lowrey could file suit he first had to exhaust his administrative remedies tinder the hospital medical staff bylaws. Since he failed to exhaust his remedies by failing to follow through on his right to appeal,, he had no standing to sue. In virtually all instances a physician whose medical staff privileges are subjected to disciplinary action, whether by suspension or revocation, must exhaust his remedies under hospital medical staff bylaws before he can file suit against a hospital. It is a sine qua non!

LEGAL COMMENTARY: The court concluded, ipso facto, that since Dr. Lowrey failed to exhaust his administrative remedies, he could not initiate court action. This is not exclusive to physicians. It is virtually universal whenever any party has failed to exhaust his administrative remedies. Be he doctor, lawyer, or indian chief, he has no standing to file suit until all administrative remedies (including all administrative appeals to which he is entitled) have been exhausted. Not only was a dissenting opinion filed, but a concurring opinion was also filed. The dissenting opinion was in agreement with the majority opinion that Dr. Lowrey had failed to exhaust his administrative rights and that he was required to do so before he could sue. However, the dissenting opinion departed from the majority opinion, insofar as the dissenting opinion focused on the fact that Dr. Lowrey's allegations in Count One of his complaint was, in fact, a claim for breach of the contract he and the hospital entered into in which, the hospital agreed to keep his patients informed of where they could contact him. The dissenting opinion found that this was not related to the subject matter of the disciplinary action taken by the hospital. The dissenting opinion concluded that this had made with him to keep his patients informed of where they could contact him. This, the dissenting opinion stressed was strictly the subject matter of a separate contract between the doctor and the hospital. Thus, there were no administrative remedies to be exhausted in Dr. Lowrey claim that the hospital had breached the contract made with him. The concurring opinion also expressed agreement that Dr. Lowrey had to exhaust his administrative remedies before initiating suit. That opinion was consistent with the dissenting opinion as to the breach of contract claim not requiring any exhaustion of remedies. However, the opinion expressed the fact that Dr. Lowrey had waived his right to argue that because he failed to either raise or argue that issue at the appropriate time!

A. David Tammelleo JD Editor & Publisher

Meet the Editor & Publisher: A. David Tammelleo, JD. is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as all attorney and lecturer, have won him recognition in Martindale Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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Title Annotation:Legal Focus on Hospital Law Issues
Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Article Type:Case overview
Date:Nov 1, 2009
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