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Sharma v. Providence Health & Services-Oregon

Court of Appeals of Oregon

January 4, 2018

Sanjeev SHARMA, Plaintiff-Appellant,
v.
PROVIDENCE HEALTH & SERVICES-OREGON, dba Providence Medical Group-South; Thomas S. Hanenburg; Anesthesia Associates of Medford, P.C.; Steven G. Cannon; Lindy S. Deatherage; James D. Faraoni; Brian E. Hall; Thomas J. Hammond; Daniel A. Kahn; Robert J. Trujillo, Defendants-Respondents.

          Argued and Submitted May 9, 2016

         Jackson County Circuit Court 125001L2; Benjamin M. Bloom, Judge.

          Gordon T. Carey, Jr., argued the cause and fled the briefs for appellant.

          Bradley F. Piscadlo argued the cause for respondents Anesthesia Associates of Medford, P. C., Steven G. Cannon, Lindy S. Deatherage, Brian E. Hall, and Thomas J. Hammond. With him on the brief were Martha J. Hodgkinson and Hodgkinson Street Mepham, LLC.

          Janine C. Blatt argued the cause for respondents Providence Health & Services-Oregon and Thomas S. Hanenburg. With her on the brief were Jeffrey J. Druckman and Druckman & Blatt, P. C.

          No appearance for respondents James D. Faraoni, Daniel A. Kahn, and Robert J. Trujillo.

          Before Armstrong, Presiding Judge, and Egan, Chief Judge, and Shorr, Judge.

         [289 Or.App. 645] Case Summary:

         Plaintiff appeals a general judgment dismissing all of his claims against defendants. In several assignments of error, plaintiff argues that the trial court erred in granting summary judgment because he raised genuine issues of material fact with respect to each element of his claims, which were for breach of contract, wrongful discharge, intentional misrepresentation, violations of ORS 659.815, intentional interference with economic relations, and intentional interference with prospective advantage. Held: The trial court did not err in granting summary judgment to defendants on all of plaintiff's claims because plaintiff failed to produce evidence raising a genuine issue of material fact on at least one challenged element of each of his claims.

         Affirmed.

          [289 Or.App. 646] EGAN, C.J.

         Plaintiff appeals a general judgment dismissing all of his claims against defendants Providence Health & Services-Oregon (Providence), Thomas Hanenburg, Anesthesia Associates of Medford, PC. (AAM), and AAM anesthesiologists Steven Cannon, Lindy Deatherage, Brian Hall, and Thomas Hammond (defendant anesthesiologists). On appeal, plaintiff raises 13 assignments of error. We reject plaintiffs assignments of error 1, 2, 11, 12, and 13 without discussion. In assignments of error 3 through 10, plaintiff argues that the trial court erred in granting summary judgment to defendants on plaintiffs claims for breach of contract, wrongful discharge, intentional misrepresentation, violations of ORS 659.815, intentional interference with economic relations, and intentional interference with prospective advantage. With respect to those assignments, we conclude that the trial court did not err in granting summary judgment to defendants on all of plaintiffs claims, and we affirm.

         I. FACTS

         In reviewing a motion for summary judgment, we state the facts in the light most favorable to the nonmoving party, here plaintiff, and draw all reasonable inferences in plaintiffs favor. ORCP 47 C; Harper v. Mt. Hood Community College, 283 Or.App. 207, 208, 388 P.3d 1170 (2016). "[W]here the record could reasonably support either party's version of events, we state the facts as described by plaintiff." Huber v. Dept. of Education, 235 Or.App. 230, 232, 230 P.3d 937 (2010).

         Plaintiffs claims pertain to his business relationship with Providence Medical Group-South (PMG), Providence Medford Medical Center (the Providence hospital), and AAM. PMG and the Providence hospital both operate in the Medford area and are owned and operated by Providence. Through PMG, Providence employs physicians who are granted privileges to work at the Providence hospital.[1] AAM [289 Or.App. 647] is a medical group operating in the Medford area, which provides anesthesiology services to the Providence hospital.

         In late 2009, Providence advertised a cardiovascular surgery position in Medford. Plaintiff, a board-certified cardiothoracic surgeon then employed at Case Western Reserve University, applied for the position and, in February and March 2010, Providence invited plaintiff to visit the Providence hospital for interviews. During those interviews, plaintiff met defendant Hanenburg, the chief executive officer of the Providence hospital; Jackson, the chief executive officer of PMG; several other PMG and Providence hospital personnel; and defendants Hall and Cannon, two of AAM's anesthesiologists. Pertinent to plaintiff's claims are representations that Providence personnel made to plaintiff regarding the cardiovascular surgery position. Those representations include the following:

• The Providence hospital "had had a [cardiovascular surgery] program that had been sort of up and down over the last four years. They had a [cardiac] surgeon that had been there, *** consistently for a year and a half, two years * * * and that since he had left, [the hospital] had incorporated surgeons [who] would" fill in temporarily.
• There was an established cardiovascular surgery program at the other hospital in Medford, Rogue Valley Medical Center (Rogue Valley). For a number of years, Providence physicians had been referring patients to Rogue Valley for surgeries and were "comfortable" doing so. The AAM anesthesiologists also provided anesthesiology for Rogue Valley's cardiovascular surgeries, but Hall and Cannon "seemed really supportive" of the Providence hospital's program and were planning to provide a core group of six anesthesiologists.
[289 Or.App. 648] • "Providence wanted to have a competitive program to compete against Rogue Valley Medical Center; to offer all the services for cardiac and general thoracic surgery."
• Providence was hopeful that, if the Providence hospital was able to get another on-call interventionist cardiologist and a cardiothoracic surgeon, the hospital would be able to participate as a receiving facility in the community-wide emergency medical services (EMS) STEMI[2] network, which was a system within the county to rapidly transport STEMI patients to the nearest facility for treatment.
• It was very important to Providence that the cardiovascular surgery program have a sustained record of good outcomes on patient mortality rates.
• Plaintiff's expressed vision of the cardiovascular surgery program consisted of, among other things, the Providence hospital providing "24/7 services for both cardiac surgery and cardiology, " a dedicated operating room used solely for cardiothoracic surgeries, and a supportive anesthesia group. From Hanenburg's representations, plaintiff understood that the Providence hospital would provide those conditions.

         On behalf of Providence, Hanenburg offered, and plaintiff accepted, the cardiovascular surgery position. PMG's chief executive, Jackson, and plaintiff signed a "Physician Employment Agreement" in March 2010, which provided that plaintiff would receive an annual salary of $416, 000, be eligible for additional compensation based on worked "RVUs, " and receive potential bonuses for achieving certain "quality metrics, " including, among other things, an "observed to expected risk-adjusted ratio of 0.97 or less for" specified surgical procedures, and the hospital becoming a participant as a primary "PCI" center in the EMS STEMI network.

         [289 Or.App. 649] Under the agreement, plaintiff was required to maintain privileges at Providence, abide by Providence's policies and regulations, meet patient care responsibilities, such as charting and phone calls, and meet "productivity and performance standards as established by Providence." The failure to satisfy those requirements could result in "a corrective action plan" or "non-renewal or termination of Physician's Employment Agreement." The employment agreement also included a noncompete provision, under which plaintiff agreed, among other things, that he would not practice cardiac or cardiovascular surgery in Jackson or Josephine counties for a period of 18 months after a termination of employment occurring within the first three-year employment period.

         Under the agreement, PMG promised to "provide the facilities, equipment, supplies, inventory, utilities [, ] and other services necessary or appropriate to support [plaintiff's] practice of medicine" and to compensate plaintiff according to the terms of the agreement. The contract also provided in section 8.2 that, "[i]n the performance of Physician's medical duties under this Agreement, Physician will exercise his or her independent professional judgment in a manner consistent with currently approved methods and practices of the profession and in the best interests of the patient."

         When plaintiff began his employment in June 2010 he learned that the hospital would not be supplying him with the conditions that he considered necessary for a competitive, comprehensive cardiovascular program. There would be no operating room dedicated solely to cardiac surgeries; instead, plaintiff would be performing surgeries in a room in which other surgeries were also performed. Plaintiff also learned that, under AAM's contract with the Providence hospital, the only scheduled times for cardiothoracic anesthesiology services were Tuesdays and Thursdays, from 7:30 a.m. to 12:00 p.m. The anesthesiologists were, however, available on call for 24 hours each day for urgent or emergent cardiac surgeries. In February 2011, the anesthesiologists' scheduled time increased to three days a week, from 7:30 a.m. to 4:00 p.m.

         [289 Or.App. 650] Plaintiff's problems with the anesthesiologists were not limited to the lack of surgery hours. Plaintiff complained to Hanenburg that the anesthesiologists were unsupportive of him. The anesthesiologists argued with plaintiff, and plaintiff interpreted their behavior as wanting to "control, really, my work for their convenience." Plaintiff also complained about the anesthesiologists' practices, including that some of them would not wear masks during a surgery, used bare hands to put in a line, and at least one of the anesthesiologists would make cell phone calls while in the operating room. Plaintiff began expressing his displeasure with these circumstances to Hanenburg early on in his employment.

         Plaintiff was not the first surgeon at the Providence hospital to complain to Hanenburg about the anesthesiologists. The Providence hospital's previous cardiovascular surgeon had also complained to Hanenburg that the anesthesiologists were unsupportive of the new cardiovascular surgery program. Other hospital staff at that time also told Hanenburg that the anesthesiologists were not supportive of the program, and a 2007 email from Cannon to the other AAM anesthesiologists confirmed that sentiment, including his wish that "this whole program would simply go away."

         Despite the difficult conditions under which plaintiff felt he was working, he performed surgeries not only during the scheduled block times, but also on evenings and weekends. Within the 10 months that plaintiff was employed by Providence, plaintiff performed 161 surgeries, which was higher than the 125 to 150 annual surgeries that plaintiff believes a cardiovascular surgery program needs to thrive. Although plaintiff testified that there were sometimes delays to his surgeries, he also testified that he never had to decline a surgery because of the lack of the availability of the operating room or an anesthesiologist and that the delays did not affect the outcome of his surgeries.

         Sometime in September 2010, Hanenburg became concerned about the mortality rates among plaintiff's patients. Hanenburg and plaintiff had a conference call with a few other staff, during which plaintiff agreed to a set of guidelines for surgery scheduling and preoperative consultations with Dr. Swanson at Providence St. Vincent Heart and [289 Or.App. 651] Vascular Institute in Portland (Providence St. Vincent) on all open heart and cardiovascular cases. Plaintiff believed that the guidelines were a way of relationship building with the anesthesiologists to accommodate their concerns and requests because they "were working fairly hard on the cardiac surgery service, weekends, evenings."

         The agreed-to guidelines were formalized into a policy statement, dated September 29, 2010, entitled "CV Surgery Program Development, " with which plaintiff also agreed and signed (the September guidelines). The September guidelines required, among other things, the following during the first year of the cardiovascular surgery program: (1) no more than one elective open heart surgery would be scheduled per day; (2) no weekend surgical cases would be scheduled unless the case was an emergent surgical case as defined in the guidelines; (3) plaintiff was to consult with a cardiothoracic surgeon at Providence St. Vincent before performing any elective surgery; (4) plaintiff could not perform an elective surgery without the consensus of the Providence St. Vincent cardiothoracic surgeon, the Providence hospital's cardiothoracic surgeon, and the director of the Providence hospital's heart and vascular program; and (5) in any conflict regarding case selection, support staff availability, or case scheduling, the Providence hospital's administrator on call, in consultation with the appropriate heart and vascular staff, would make the final decision. Plaintiff testified that the September guidelines never prevented him from doing a surgery that he wanted to do.

         Not long after the September guidelines took effect, defendant anesthesiologists asked Grant, president of AAM and a member of the Providence hospital's medical executive committee (MEC), to meet them at the Providence hospital on a Sunday to review records of seven cardiac surgeries performed by plaintiff and for which AAM had provided anesthesiology services. Defendant anesthesiologists considered those seven surgeries to have had "bad outcomes." At that meeting, defendant anesthesiologists presented the seven cases to Grant and gave him notes on each of the seven cases. Those notes focused on plaintiff's actions and patient care and highlighted defendant anesthesiologists' concerns [289 Or.App. 652] about plaintiff with respect to each surgery. Those concerns included questioning whether plaintiff was authorized to perform a procedure and whether certain procedures had been appropriate for the new program, and accusations that plaintiff was dismissing or ignoring anesthesiologists' findings during procedures and was falsifying findings in operative reports.

         After the meeting, Grant called Hanenburg and asked for a Monday morning meeting because he had serious concerns regarding plaintiff that he had already shared with Kuhl, who was the president of Medical Staff and chair of the MEC. At that meeting, Grant gave Hanenburg the defendant anesthesiologists' notes, reviewed them with him, and told Hanenburg that the AAM anesthesiologists had significant concerns about plaintiff's care that is "putting the community and our patients at risk." Grant also told Hanenburg that, given the concerns about falsifying information, AAM was evaluating whether it needed to report those concerns to the Oregon Medical Board.

         Following that meeting, Hanenburg consulted Sternenberg, the chair of surgery, and Kuhl. They decided that a focused peer review of the seven cases was warranted. Swanson, the surgeon with whom plaintiff was required to consult at Providence St. Vincent, and Kelly, an anesthesiologist at Providence St. Vincent, conducted that review. Swanson and Kelly reported that the "appropriateness of care" in three of the seven cases was unacceptable. Upon receiving that review, the MEC formed a subcommittee to further review the seven cases. Plaintiff agreed to voluntarily refrain from performing surgeries for seven days pending the outcome of the MEC review. At the end ...


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