BRUCE B FEYZ MD V MERCY MEMORIAL HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
BRUCE B. FEYZ, M.D.,
UNPUBLISHED
January 5, 2010
Plaintiff-Appellant,
v
No. 285880
Monroe Circuit Court
LC No. 02-014174-CZ
MERCY MEMORIAL HOSPITAL and
RICHARD HILTZ,
Defendant-Appellees,
and
JAMES MILLER, D.O., JOHN KALENKIEWICZ,
M.D., J. MARSHALL NEWBERN, D.O., and
ANTHONY SONGCO, M.D.,
Defendants.
BRUCE B. FEYZ, M.D.,
Plaintiff/Appellant/Cross-Appellee,
v
MERCY MEMORIAL HOSPITAL, RICHARD
HILTZ, JAMES MILLER, D.O., JOHN
KALENKIEWICZ, M.D., J. MARSHALL
NEWBERN, D.O., and ANTHONY SONGCO,
M.D.,
Defendants/Appellees/CrossAppellants.
Before: Murray, P.J., and Markey and Borrello, JJ.
PER CURIAM.
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No. 289226
Monroe Circuit Court
LC No. 02-014174-CZ
In Docket No. 285880, plaintiff appeals as of right an order granting defendants’ motion
for summary disposition of plaintiff’s breach of contract and retaliation claims. In Docket No.
289226, plaintiff appeals as of right, and defendants cross-appeal, an order awarding sanctions to
defendants under MCL 600.2591. For the reasons set forth in this opinion, we affirm.
I. Facts and Procedural History
Both this Court and our Supreme Court have previously issued published opinions in this
case. The relevant facts are gleaned from the Supreme Court’s opinion:
Plaintiff is a physician with staff privileges at defendant Mercy Memorial
Hospital. Plaintiff was dissatisfied with defendant hospital’s standard nursing
policy requiring nurses to document patients’ prescribed medications and dosages
by either copying the label on their prescription containers or copying a list of
medications carried by patients. As a consequence, plaintiff created his own
specialized orders[1] directing the nursing staff to obtain very specific information
from plaintiff’s incoming patients about their prescription drug use. Plaintiff’s
orders directed the nursing staff, as part of the admissions process for his patients,
to assume a far more aggressive investigative role regarding patient medication.
Defendants disapproved plaintiff’s standing orders, and instructed the
nursing staff to ignore them. In several cases where the nurses disregarded
plaintiff’s special orders and followed defendant hospital’s nursing directives,
plaintiff prepared “incident reports” referring such cases to peer review
committees for investigation of “potential medical errors.” Further, plaintiff
began making notations in patient records that his disregarded orders were
intended to “[p]revent serious medication errors in the past.”
1
These standing orders are also referred to as plaintiff’s orders A-D. These were specialized
orders that plaintiff wrote and sought to have the nursing staff follow for his patients in an effort
to reduce the possibility of medication errors for patients. According to plaintiff’s complaint, his
standing orders required nurses to:
A. Have the family bring in home medications.
B. Ask the patient (if alert) if the containers belong to the medications. If not,
send the container(s) to the pharmacy for identification.
C. Ask the patient to look at his/her medications inside the container and tell how
he/she has been taking them at home.
D. List the dose and frequency of medications taken on the nursing assessment
form as the patient is actually taking them at home.
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Defendants initiated peer review proceedings against plaintiff based on
plaintiff’s failure to complete medical records and his insistence that the nursing
staff follow his standing orders rather than comply with hospital policy. An ad
hoc investigatory committee reviewed plaintiff’s conduct and released its findings
to the executive committee of defendant medical staff. Relying on the ad hoc
committee’s report, the executive committee referred plaintiff to the Health
Professionals Recovery Program (HPRP) for a psychiatric examination. Plaintiff
was placed on temporary probation.
Plaintiff alleges that he ceased writing his standard orders because, in
compromise, defendant hospital gave plaintiff use of the pharmacy consult service
to implement plaintiff’s special orders. It appears that plaintiff’s orders regarding
patient medication overburdened the staff of the pharmacy consult service, so the
hospital eventually discontinued this arrangement. Thereafter, plaintiff resumed
placing his specialized orders in patients’ medical charts. As a consequence,
defendants took further action and placed plaintiff on indefinite probation.
Plaintiff continues to practice medicine and retains privileges at defendant
hospital, but is restricted from using defendant hospital’s pharmacy consult
service or insisting on compliance with his special orders. [Feyz v Mercy Mem
Hosp, 475 Mich 663, 667-669; 719 NW2d 1 (2006) (Feyz II) (footnotes omitted).]
On about January 30, 2002, plaintiff filed suit2 against defendants3 as a result of
disciplinary action (the above mentioned probation) taken against him in 1998 and in 2000
pursuant to peer review procedures.4 The complaint alleged that in August 1998, defendant Hiltz
wrote to defendant Dr. Miller requesting that the executive committee, of which Dr. Miller was
the chairman, commence a formal investigation into charges against plaintiff. Thereafter,
defendant Dr. Miller appointed defendant Dr. Kalenkiewicz to form an ad hoc committee to
investigate the allegations against plaintiff; defendants Drs. Newbern and Songco also served on
the ad hoc committee. Ultimately, plaintiff was disciplined in 1998 and 2000. In 1998, the
2
The trial court originally granted summary disposition for defendants based on “the doctrine of
judicial nonreviewability of the staffing decisions of private hospitals, as well as statutory
immunity arising from the referral of a physician for medical evaluation.” Feyz v Mercy Mem
Hosp, 264 Mich App 699, 702; 692 NW2d 416 (2005) (Murray, J., concurring in part and
dissenting in part) (Feyz I), vacated 475 Mich 663 (2006) (Feyz II). This Court affirmed in part,
reversed in part, and remanded. Feyz I, supra at 725. Our Supreme Court vacated this Court’s
opinion in Feyz I and remanded the case to the trial court. Feyz II, supra at 691. Plaintiff’s
current appeal stems from entirely different rulings made by the trial court on remand.
3
In addition to defendant hospital, the other defendants in this case include Drs. John
Kalenkiewicz, Anthony Songco and J. Marshall Newbern, who were all members of the ad hoc
committee formed as part of the peer review process in 1998, as well as Dr. James Miller, the
hospital’s chief of staff and chairman of the executive committee, and Richard Hiltz, the
hospital’s president.
4
Plaintiff claims these proceedings are properly characterized as disciplinary proceedings rather
than peer review proceedings or procedures.
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executive committee referred plaintiff to the Health Professional Recovery Program (HPRP)5; in
addition, plaintiff was placed on probation. In 2000, plaintiff was again placed on “continuous
and indefinite probation[.]”
Plaintiff’s complaint included claims for violations of the Persons with Disabilities Civil
Rights Act (PWDCRA), MCL 37.1101 et seq. (Count I), the Americans with Disabilities Act
(ADA), 42 USC 12101 et seq. (Count II) (against defendant hospital only), the Rehabilitation
Act of 1973, 29 USC 794 (Count III) (against defendant hospital only), and the federal civil
rights act, 42 USC 1983 and 42 USC 1985 (Count IV). The complaint also included claims of
invasion of privacy (Count V), breach of fiduciary and public duties (Count VI) (against
defendant hospital only), and breach of contract (Count VII).
Although plaintiff’s complaint contains multiple counts, the only claims that are relevant
to this appeal are his claims for retaliation based on his 2000 probation (which are encompassed
in his claims for violation of the PWDCRA, the ADA, and the Rehabilitation Act of 1973
(Counts I, II and III))6 and his claim for breach of contract. Plaintiff’s remaining claims were
dismissed on other grounds below and plaintiff is not appealing their dismissal. Plaintiff’s
breach of contract claim alleges that the medical staff bylaws constitute a contract and that
defendants repeatedly breached that contract by ignoring unspecified procedural requirements of
the bylaws and committing other unspecified violations of the bylaws. According to the
complaint, plaintiff was damaged by defendants’ breach of contract because his ability to provide
quality care to his patients has been compromised and his reputation has been damaged.
Plaintiff’s retaliation claims stem from plaintiff’s allegation that he was retaliated against
after counsel for plaintiff wrote and sent a letter to defendant Hiltz in which he protested the
violation of his civil and constitutional rights and stated his intent to assert his rights under the
Rehabilitation Act of 1973 and other statutes. According to plaintiff, shortly after he wrote the
letter threatening to assert his rights, defendants began to dismantle the pharmacy consult
process. Plaintiff alleges that, as instructed, he had been referring virtually all of his admitted
patients for a pharmacy consult and that he had been assured that after-hours pharmacy consults
would be available. He asserts that after the pharmacy consults became unavailable, he resumed
writing his orders A-D. According to plaintiff, defendants hospital and Hiltz “were deliberately
manipulating the Pharmacy Consult process in order to provoke a reaction by Plaintiff that would
serve as a pretext to retaliate against Plaintiff and begin additional disciplinary proceedings
against Plaintiff.” Plaintiff alleges that he was thereafter placed on continuing probation and was
banned from using the pharmacy consult; furthermore, if he writes orders A-D he is subject to
5
See MCL 333.16223.
6
The trial court noted in its memorandum of law accompanying its order granting defendants’
motion for partial summary disposition that plaintiff did not contest the dismissal of his claims
under Counts I, II and III on the basis that the underlying events occurred more than three years
before plaintiff filed his complaint. Thus, the trial court granted summary disposition of
plaintiff’s 1998 retaliation claims under MCR 2.116(C)(7), and the only issue on appeal
regarding Counts I, II and III is whether there was an issue of material fact regarding plaintiff’s
claims of retaliation in 2000.
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summary suspension or revocation of his hospital privileges. According to plaintiff, defendants
hospital and Hiltz further retaliated against him “by refusing to renew a contract to provide EKG
longstanding interpretive services at Mercy.”
In March 2008, defendants moved for summary disposition. In relevant part, defendants
moved for summary disposition under MCR 2.116(C)(10), arguing that there was no genuine
issue of material fact that plaintiff was not discriminated against under the PWDCRA, the ADA,
or the Rehabilitation Act of 1973. According to defendants, plaintiff sought special treatment in
that he wanted to be able to write orders that violated the hospital’s policies and that no other
medical staff member was permitted to write. Thus, defendants contend, plaintiff was not treated
any differently than any other members of the medical staff with regard to his ability to write
orders that are prohibited by hospital or nursing policies. Furthermore, defendants argued that
plaintiff was not disabled and that there was no genuine issue of material fact that none of the
defendants regarded plaintiff as disabled. Defendants also argued that there was no evidence that
plaintiff was retaliated against for asserting his civil rights. According to defendants, there was
no evidence of any causal connection between the letter from plaintiff’s counsel and any adverse
action. Rather, defendants contended, plaintiff was placed on probation in 2000 because he had
resumed writing orders that violated hospital policy.
Plaintiff submitted a brief in response to defendants’ motion for summary disposition. In
his brief, plaintiff noted his agreement with a separate motion for summary disposition filed by
defendants based on the statute of limitations and agreed that Counts IV, V, and VI of his
complaint should be dismissed on this basis. Furthermore, he conceded that with respect to his
claims under the PWDCRA, the ADA, and the Rehabilitation Act, acts or events occurring more
than three years prior to the filing of his complaint in January 2002 could not form the basis for
his claims under these statutes. He further acknowledged that the 1998 acts and events,
including the proceedings that resulted in his probation and the referral to HPRP, are time barred.
According to plaintiff, the crux of his claim after January 1999 (acts not barred by the statute of
limitations) is a claim that he was retaliated against after his attorney wrote the June 1999 letter
asserting plaintiff’s civil rights. Plaintiff asserted that he established a genuine issue of material
fact in this regard.
In a separate motion, defendants moved for summary disposition of plaintiff’s breach of
contract claim under MCR 2.116(C)(8) and/or (10). Defendants argued, in relevant part, that the
bylaws did not constitute an enforceable contract and that even if they did, defendants did not
breach the bylaws. Plaintiff argued that the bylaws did create an enforceable contract and that
the bylaws were breached in numerous specific respects.
The trial court addressed defendants’ motions for summary disposition of plaintiff’s
discrimination and contract claims in the same order and memorandum of law and granted both
motions. Regarding plaintiff’s discrimination claims, the trial court first observed that because
plaintiff agreed that claims based on events occurring more than three years before the filing of
his complaint were time barred and because plaintiff conceded that he had no evidence to
support any form of disability discrimination claim, the court was only considering whether
plaintiff’s retaliation claims under the PWDCRA, the ADA, and the Rehabilitation Act were
viable. Furthermore, the trial court ruled that in light of plaintiff’s concessions regarding the
statute of limitations, it would only consider plaintiff’s 2000 disciplinary proceedings regarding
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the retaliation claim.7 In granting summary disposition of plaintiff’s retaliation claims, the trial
court stated as follows:
The Plaintiff contends that the Defendants took adverse action against him for
asserting his civil rights in June of 1999. Specifically, the Plaintiff alleges that the
Defendants removed the “pharmacy consult process” to “provoke” him into
writing the notorious orders A-D, for which he had been disciplined in 1998. The
Court finds that no reasonable jury could find the removal of a costly hospital
service—i.e., the pharmacy consults—to have been calculated to provoke
Plaintiff. Unlike in Sumner v. Goodyear Tire & Rubber Co., 427 Mich 505
(1986) where the Court found substantial evidence to suggest that overt acts of
managerial discrimination were perpetrated to provoke the plaintiff into action for
which he could be disciplined, here the Plaintiff has failed to show any
discriminatory treatment.
Granted, the Plaintiff is alleged to have been the only physician utilizing
the pharmacy consult mechanism, but the Plaintiff bears the burden to show that
the removal of this mechanism somehow constituted a plan or course of
discriminatory treatment substantially contributing to his later discipline. The
Plaintiff simply can make no such showing. The Defendants state the change in
policy was driven by financial considerations involving pharmacy staffing; the
Court finds this position persuasive. Additionally, the Court finds it appalling that
the Plaintiff would even rely on a racial discrimination case in an attempt to
justify his continued defiance of hospital policy applicable to all physicians. The
fact is the Plaintiff’s claim has nothing to do with discriminatory treatment, but
rather the Defendants’ refusal to grant him special privileges, and in a sense, the
Defendants’ refusal to discriminate against the rest of the medical staff for his
benefit.
The Plaintiff also alleges that his ER referrals were reduced in retaliation
for his “civil rights” assertion. This is similarly devoid of merit because the
Plaintiff admitted in his deposition that his referrals were reduced in 1998, long
before the letter from counsel was sent. Additionally, the ER referrals are made
by individual ER doctors who are not alleged to have even been aware of his
letter from counsel, and any suggestion of a more wide ranging conspiracy is
simply without evidentiary support at this late, late date.
The trial court also granted summary disposition of plaintiff’s breach of contract claim.
In so doing, the trial court accepted plaintiff’s contention that the bylaws constituted an
7
In the same order granting summary disposition of plaintiff’s breach of contract and retaliation
claims, the trial court also granted summary disposition under MCR 2.116(C)(7) of plaintiff’s
retaliation claims under the PWDCRA, the ADA, and the Rehabilitation Act related to his 1998
probation, his civil rights claims, his invasion of privacy claims, and his breach of fiduciary
duties claims.
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enforceable contract. In granting summary disposition of this claim, the trial court did not make
a determination regarding each alleged violation of defendants’ bylaws. Rather, the trial court
assumed that defendants did violate the bylaws in the ways alleged by plaintiff in his brief
opposing summary disposition, concluding that “[p]laintiff is unable to demonstrate the harm he
has allegedly suffered” and that “even if the numerous procedural violations the Plaintiff
complains of had not occurred, the Plaintiff would have suffered the same exact fate, albeit
through a lengthier process.” The trial court’s ruling regarding plaintiff’s breach of contract
claim is as follows:
Regarding the Plaintiff’s 1998 probation, there is not a legitimate or any
serious dispute that the Plaintiff’s discipline was due to writing orders A-D and
related annoyances to the nursing staff. While the Plaintiff alleges that his end of
life care practices were also examined by the Executive Committee, there is
absolutely no indication that proper notice to the Plaintiff of all the charges
against him and a proper opportunity to respond would have, in any way, affected
the outcome. The Hospital’s exception to the Plaintiff’s insubordination and
continued refusal to follow protocol regarding orders A-D later resulted in his
receipt of lifetime probation in 2000; accordingly, the Court finds that even if the
Defendants had properly followed bylaw procedures, the Plaintiff’s 1998
punishment would not have changed. Additionally, even if this Court were to
assume that bylaw procedures would have led to a different result, unlike the
Plaintiff’s subsequent probation claim which is supposedly bolstered by pecuniary
loss due to the non-renewal of his 2001 EKG contract, the Plaintiff has not shown
any financial harm stemming from his 1998 probation.
Regarding the 2000 probation proceedings against the Plaintiff, again the
Court assumes the existence of procedural irregularities; however, proper bylaw
procedure would have resulted in the exact same punishment against the Plaintiff.
The Plaintiff’s problem is not that the hospital is refusing him a “fair shake”; his
problem is that he continually demands special treatment for his orders A-D. The
Plaintiff, in fact admitted in his deposition that if he were taken off probation
tomorrow he would begin writing orders A-D again; this spirit of defiance is what
has placed the Plaintiff in his current predicament, and though it is too bad he lost
his 2001 EKG contract due to his probationary status and that he must endure the
stigma of being a lifetime probationer, this Court will not change hospital policy
nor will it rewrite the “contract” the Plaintiff shares with the medical staff. In any
event, the Plaintiff cannot make out a prima facie case for breach of contract
because under these circumstances, the Court finds that he would have suffered
the exact same punishment even if the bylaw procedures had been followed.
After the trial court granted summary disposition and dismissed plaintiff’s discrimination
and contract claims, defendants moved for sanctions against plaintiff and his attorney based on
MCR 2.625 and MCL 600.2591. The trial court granted the motion. Plaintiff appeals from both
the order granting defendants’ motions for summary disposition and the order granting
defendants’ motion for sanctions, and defendants cross-appeal the order awarding them
sanctions.
II. Analysis
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A. Docket No. 285880
1. Breach of Contract
The trial court properly granted summary disposition of plaintiff’s breach of contract
claim under MCR 2.116(C)(8). This Court reviews de novo a trial court’s decision to grant or
deny a motion for summary disposition. Barrow v Pritchard, 235 Mich App 478, 480; 597
NW2d 853 (1999). When an action is based on a written contract, it is generally necessary to
attach a copy of the contract to the complaint. MCR 2.113(F); Laurel Woods Apts v Roumayah,
274 Mich App 631, 635; 734 NW2d 217 (2007). The written contract then becomes part of the
pleadings and can be considered for purposes of review under MCR 2.116(C)(8). Laurel Woods
Apts, supra at 635. When deciding a motion brought under MCR 2.116(C)(8), a court considers
only the pleadings. MCR 2.116(G)(5); Maiden v Rozwood, 461 Mich 109, 119-120; 597 NW2d
817 (1999). A motion under MCR 2.116(C)(8) “tests the legal sufficiency of the complaint. All
well-pleaded factual allegations are accepted as true and construed in a light most favorable to
the nonmovant.” Maiden, supra at 119. “A motion under MCR 2.116(C)(8) may be granted
only where the claims alleged are ‘so clearly unenforceable as a matter of law that no factual
development could possibly justify recovery.’” Id., quoting Wade v Dep’t of Corrections, 439
Mich 158, 163; 483 NW2d 26 (1992).
Plaintiff’s entire breach of contract claim8 consists of three paragraphs in his complaint:
Count VII – BREACH OF CONTRACT
155. The Medical Staff By-Laws are a contract under which members of the
Medical Staff exercise staff privileges at Mercy.
156. Defendants Mercy and the Medical Staff have repeatedly breach [sic] and
continue to breach that contract by ignoring procedural requirements and
otherwise violating the By-Laws.
157. Plaintiff has been and continues to be damaged by Defendants’ breach of
contract in that his ability to provide quality care to patients has been
compromised and his reputation has been damaged.
To establish a breach of contract, a plaintiff must establish both the elements of a contract
and a breach of the contract. See Pawlak v Redox Corp, 182 Mich App 758, 765; 453 NW2d
304 (1990). A valid contract requires parties competent to contract, a proper subject matter,
legal consideration, and mutuality of agreement and obligation. Thomas v Leja, 187 Mich App
418, 422; 468 NW2d 58 (1991). The plaintiff must then establish the breach of the contract and
8
In granting summary disposition of plaintiff’s breach of contract claim, the trial court assumed,
without deciding, that the medical staff bylaws constituted an enforceable contract. This opinion
similarly assumes, without deciding, that the medical staff bylaws constituted an enforceable
contract.
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damages resulting from the breach. Alan Custom Homes, Inc v Krol, 256 Mich App 505, 512;
667 NW2d 379 (2003).
In this case, plaintiff failed to adequately plead a breach of contract claim. Specifically,
he failed to sufficiently plead damages resulting from any alleged breach of the medical staff
bylaws.9 The party asserting a breach of contract has the burden of proving his damages with
reasonable certainty and may recover only those damages which are the direct, natural and
proximate result of the breach. Id. The only allegation plaintiff makes regarding damages in his
breach of contract claim is that “his ability to provide quality care to patients has been
compromised and his reputation has been damaged.” Such damages are not a direct, natural and
proximate result of any breach of defendants’ bylaws. Id. Furthermore, plaintiff’s complaint
acknowledges that plaintiff is still a member of defendant hospital’s medical staff
notwithstanding his placement “on continuous and indefinite probation.” Therefore, even
accepting as true plaintiff’s allegation that the care of his patients has been compromised and that
his reputation has been damaged, plaintiff is still employed as a physician at defendant hospital
and has therefore not adequately pleaded damages flowing from any alleged breach of contract.10
Plaintiff urges this Court to make findings regarding his specific allegations of breach.
We decline to do so based on our conclusion that summary disposition is proper under MCR
2.116(C)(8); only the pleadings are considered in determining the propriety of granting such a
9
While we have independently reviewed plaintiff’s breach of contract claim to determine
whether summary disposition was proper under 2.116(C)(8), we note that the panel in Feyz I
noted that it was “skeptical” regarding whether the “extremely vague” allegations in plaintiff’s
breach of contract claim could survive a motion for summary disposition under MCR
2.116(C)(8), id. at 708, and observed that “summary disposition of this count may ultimately
prove appropriate . . . .” Id. at 709.
10
Elsewhere in his complaint, plaintiff alleges that he suffered pecuniary harm in that defendants
failed to renew his interpretive EKG contract after he was placed on probation in 2000.
Specifically, the complaint alleges that defendants hospital and Hiltz “took further retaliatory
action against Plaintiff by refusing to renew a contract to provide EKG longstanding interpretive
services at Mercy.” However, the allegations in his complaint regarding the nonrenewal of the
EKG contract are made in the context of plaintiff’s retaliation claims against defendants. If
plaintiff had alleged the nonrenewal of his EKG contract as constituting damages resulting from
defendants’ alleged breach of the bylaws, his breach of contract count would have been
sufficient to withstand a (C)(8) motion, at least with respect to the damages element of a breach
of contract claim. However, plaintiff did not allege damages from the nonrenewal of his EKG
contract in his breach of contract claim. Furthermore, plaintiff did not incorporate the other
allegations in his complaint into his breach of contract claim. In his brief on appeal, plaintiff
does argue that he was damaged by defendants’ breach of the bylaws in that his EKG interpretive
contract with defendant hospital was not renewed for the year 2001. However, this does not
change the fact that plaintiff failed to allege damage based on the nonrenewal of the EKG in his
claim for breach of contract in his complaint. A motion based on MCR 2.116(C)(8) tests the
sufficiency of a complaint based on the pleadings alone. Maiden, supra at 119. Thus, plaintiff’s
reference to the nonrenewal of his EKG contract elsewhere in his thirty page complaint does not
save his breach of contract claim from dismissal based on MCR 2.116(C)(8).
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motion. Furthermore, the trial court did not decide or address plaintiff’s specific allegations
regarding defendants’ breach of the bylaws, and issues not addressed by the trial court are
generally not preserved for review. Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d
489 (1999).
2. Retaliation
The trial court also properly granted summary disposition of plaintiff’s retaliation claim
under the PWDCRA under MCR 2.116(C)(10). This Court’s review of a trial court’s grant of
summary disposition pursuant to MCR 2.116(C)(10) is as follows:
A motion brought under MCR 2.116(C)(10) tests the factual support for a claim.
Downey v Charlevoix Co Rd Comm’rs, 227 Mich App 621, 625; 576 NW2d 712
(1998). The pleadings, affidavits, depositions, admissions, and any other
documentary evidence submitted by the parties must be considered by the court
when ruling on a motion brought under MCR 2.116(C)(10). Downey, supra at
626; MCR 2.116(G)(5). When reviewing a decision on a motion for summary
disposition under MCR 2.116(C)(10), this Court “must consider the documentary
evidence presented to the trial court ‘in the light most favorable to the nonmoving
party.’” DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534,
539; 620 NW2d 836 (2001), quoting Harts v Farmers Ins Exchange, 461 Mich 1,
5; 597 NW2d 47 (1999). A trial court has properly granted a motion for summary
disposition under MCR 2.116(C)(10) “if the affidavits or other documentary
evidence show that there is no genuine issue in respect to any material fact, and
the moving party is entitled to judgment as a matter of law.” Quinto v Cross &
Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). [Clerc v Chippewa Co
War Mem Hosp, 267 Mich App 597, 601; 705 NW2d 703 (2005), remanded in
part 477 Mich 1067 (2007).]
Plaintiff’s briefing of this issue is woefully inadequate. Plaintiff brought his retaliation
claim under the PWDCRA, the ADA and the Rehabilitation Act. However, his brief on appeal
does not articulate the elements of a retaliation claim under any of those statutes. The only case
cited by plaintiff’s briefing of this issue is a case involving a violation of the HCRA, now the
PWDCRA. Therefore, our analysis of this issue will be limited to whether the trial court
properly dismissed plaintiff’s retaliation claim under the PWDCRA. Plaintiff has abandoned any
argument that the trial court erred in dismissing his retaliation claims under the ADA and the
Rehabilitation Act by failing to properly address the merits of his assertion of error. Peterson
Novelties, Inc v Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003). “An appellant may not
merely announce his position and leave it to this Court to discover and rationalize the basis for
his claims . . . .” Id.
The crux of plaintiff’s retaliation claims, regardless of the statute under which it is
asserted, is that defendants reduced the pharmacy consults, which only plaintiff was using, in an
effort to provoke plaintiff to resume writing his orders A-D so that they could discipline him.
Plaintiff contends that there are genuine issues of material fact regarding whether:
1) [defendants] improperly removed the pharmacy consults they had granted
Appellant to resolve home medication issue in 1998; 2) [defendants] did so in a
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fashion calculated to provoke Appellant to resume writing Orders A-D so that
further discipline could be imposed; 3) when [plaintiff] resumed writing the
orders [defendants] violated their by-laws and imposed discipline using
fundamentally unfair and ultra vires procedures; [4]) [defendants] imposed an
unreasonable disciplinary sentence of probation for life; [5]) [defendants] used the
probation as a pretext to not renew and [sic] EKG interpretation contract, costing
[plaintiff] well over $100,000 to date, and 6) [defendants] stopped referring
emergency room patients to [plaintiff] on the nights he was the designated on-call
physician.
The PWDCRA provides that a person shall not “[r]etaliate or discriminate against a
person because the person has opposed a violation of this act, or because the person has made a
charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or
hearing under this act.” MCL 37.1602(a). “The plaintiff bears the burden of proving a violation
of the PWDCRA.” Peden v Detroit, 470 Mich 195, 204; 680 NW2d 857 (2004). “To establish a
prima facie case of unlawful retaliation under § 602(a), a plaintiff must show: (1) that he
engaged in a protected activity, (2) that this was known by the defendant, (3) that the defendant
took an employment action adverse to the plaintiff, and (4) that there was a causal connection
between the protected activity and the adverse employment action.” Aho v Dep’t of Corrections,
263 Mich App 281, 288-289; 688 NW2d 104 (2004). “To establish a causal connection, a
plaintiff must demonstrate that his participation in the protected activity was a ‘significant factor’
in the employer’s adverse employment action, not merely that there was a causal link between
the two events.” Id. at 289. “[M]ere discriminatory or adverse action will not suffice as
evidence of retaliation unless the plaintiff demonstrates a clear nexus between such action and
the protected activity. Id. If the plaintiff establishes a prima facie case of purposeful
discrimination, “‘the burden shifts to the defendant to articulate a legitimate business reason for
discharge.’” Id., quoting Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 281; 608
NW2d 525 (2000). If the defendant articulates a legitimate business reason for discharging the
plaintiff, “the burden shifts back to the plaintiff ‘to prove that the legitimate reason offered by
the defendant was not the true reason, but was only a pretext for the discharge.’” Aho, supra at
289, quoting Roulston, supra at 281.
Summary disposition of plaintiff’s retaliation claim under the PWDCRA was proper
based on plaintiff’s inability to establish an issue of fact regarding causation. As noted by the
trial court, the alleged protected activity was counsel for plaintiff’s letter to defendant Hiltz
stating plaintiff’s intent to assert civil rights violations against defendants. This letter was dated
June 4, 1999, and stated, in relevant part: “Now that his probation has ended, Dr. Feyz intends to
pursue his claims against all involved in violating his civil rights. Be warned—any retaliation
against Dr. Feyz for asserting his federal and state protected civil rights will be met with vigor.”
Assuming that this was a protected activity, and also assuming that plaintiff satisfied the other
elements of his prima facie retaliation claim, there is no evidence that defendants’ conduct of
reducing the pharmacy consults, and the litany of adverse conduct that plaintiff alleges resulted
from reducing the pharmacy consults, was caused by plaintiff’s letter to defendant. To the
contrary, there was evidence that the pharmacy consults were reduced for financial and staffing
issues. It is apparent from a letter written by defendant hospital to plaintiff on August 31, 1998,
that the hospital made the pharmacy consults available to plaintiff in an attempt to resolve
plaintiff’s concerns that led to his issuance of orders A-D. The minutes of defendant hospital’s
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Pharmacy and Therapeutics Committee Meeting on March 30, 2000, indicate that “due to a
serious shortage of personnel, there was no choice but to decrease the hours of availability for
pharmacy consultations.” Furthermore, in a letter to plaintiff from defendant hospital’s vice
president of operations, the vice president wrote: “I am limiting pharmacist medication consults
to weekdays. Additional staff for clinical consultations are not currently available on weekends,
evenings, or holidays. The pharmacy department currently has three vacant full-time pharmacist
positions and must keep coverage of the main pharmacy at acceptable levels to maintain a safe
environment and provide necessary service to all patients.” These documents negate plaintiff’s
claim that there was an issue of material fact regarding whether the pharmacy consults were
reduced or eliminated to provoke plaintiff. The trial court properly concluded that “no
reasonable jury could find the removal of a costly hospital service—i.e., the pharmacy
consults—to have been calculated to provoke Plaintiff.”
Furthermore, plaintiff has failed to establish an issue of fact regarding whether his
counsel’s letter of June 4, 1999, to defendant Hiltz caused defendants to place him on lifetime or
permanent probation in 2000. Plaintiff acknowledges in his brief on appeal that the dispute over
his writing of orders A-D led to his discipline in 1998 and that his resumption of writing orders
A-D led to the imposition of lifetime probation in 2000. The fact that plaintiff was placed on
probation in 1998, before the 1999 letter was ever written, for the same conduct that he was
placed on probation for in 2000, refutes any claim that the letter was the cause of plaintiff’s
probation in 2000. Furthermore, plaintiff testified in his deposition that if he were removed from
probation, and a patient came in for treatment and there was not a pharmacy consult available, he
would write orders A-D for the patient. Thus, the imposition of lifetime probation was not
unreasonable, but rather was justified by plaintiff’s admission that he would resume writing
orders A-D if he were removed from probation.
Plaintiff further argues that the nonrenewal of his EKG interpretation contract in 2000
was retaliatory. As stated above, the letter was written on June 4, 1999, and plaintiff received a
letter dated December 26, 2000, informing him that defendant hospital did not plan to extend an
agreement to him as a regular participant in the hospital’s EKG interpretation panel during the
year 2001. However, there was evidence that in 1999, plaintiff’s EKG contract was renewed for
the year 2000, after the letter from plaintiff’s counsel was written. The fact that plaintiff’s EKG
contract was renewed at least one year after the letter is evidence that plaintiff’s letter was not
the cause of the nonrenewal of plaintiff’s EKG contract. Furthermore, when asked during his
deposition what evidence he had that his EKG contract was not renewed because of the letter
sent by his attorney in June of 1999, plaintiff stated that he did not have any evidence “at the
moment.” Thus, plaintiff did not establish an issue of fact regarding whether his EKG
interpretation contract nonrenewal was caused by the letter.
Finally, plaintiff argues that defendants retaliated against him because of the letter by not
referring emergency room patients to him on the nights he was on call. However, plaintiff
testified at his deposition that he stopped receiving ER referrals in 1998, which was even before
the letter was written and delivered to defendants in June 1999. According to plaintiff, his ER
referrals dropped to almost nothing in 1998 after he was on probation and then declined even
more in 2000, when he received virtually no ER referrals. The fact that plaintiff was receiving
decreased ER referrals before the letter negates any claim that any decline in or absence of ER
referrals was caused by the letter. Furthermore, the manner in which ER referrals are made also
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negates causation. According to plaintiff, the individual emergency room physicians made the
decision to refer ER patients without physicians to an on-call physician. Furthermore, plaintiff
admitted that he never asked any of the ER physicians why he was not receiving referrals when
he was on call.
Plaintiff asserted in his complaint that defendants “began to dismantle the pharmacy
consult process” “shortly after Plaintiff threatened to assert his rights under the law . . . .”
However, “a temporal relationship, standing alone, does not demonstrate a causal connection
between the protected activity and any adverse employment action.” West v Gen Motors Corp,
469 Mich 177, 186; 665 NW2d 468 (2003). “Something more than a temporal connection
between protected conduct and an adverse employment action is required to show causation
where discrimination-based retaliation is claimed.” Id. In this case, the letter was written in
June 1999, and the complained of conduct occurred in 2000. Plaintiff is unable to show anything
more than a coincidence in time between the allegedly protected activity and the allegedly
adverse employment action. The temporal connection alone does not establish a causal
connection, and, as explained above, plaintiff has failed to establish a genuine issue of fact
regarding causation for any of his claims of retaliatory conduct. In the absence of evidence that
the alleged retaliatory conduct was causally related to the letter, summary disposition of
plaintiff’s retaliation claim under the PWDCRA was proper.
Plaintiff’s reliance on Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d
368 (1986), rev’d Garg v Macomb Co Community Mental Health Services, 472 Mich 263
(2005), amended 473 Mich 1205 (2005), is unavailing because the case is both factually and
legally inapposite. The legal issue in Sumner involved periods of limitations under various
statutes and the application of the continuing violations doctrine. Furthermore, Sumner was a
racial discrimination case. The trial court rejected plaintiff’s reliance on Sumner, “find[ing] it
appalling that the Plaintiff would even rely on a racial discrimination case in an attempt to justify
his continued defiance of hospital policy applicable to all physicians.” We similarly conclude
that Sumner is factually and legally distinguishable from the present case.
In sum, the trial court properly granted summary disposition of plaintiff’s retaliation
claim under the PWDCRA based on MCR 2.116(C)(10) because plaintiff failed to establish a
genuine issue of material fact regarding causation.
3. Motion to Compel
Because we have concluded that the trial court properly granted summary disposition of
plaintiff’s breach of contract and retaliation claims, we need not address plaintiff’s arguments
regarding the trial court’s denial of his motion to compel the production of documents.
B. Docket No. 289226
The trial court did not err in awarding costs and sanctions to defendants under MCL
600.2591. Whether a claim is frivolous depends on the facts of the case; review of a trial court’s
finding of frivolity is for clear error. Kitchen v Kitchen, 465 Mich 654, 661-662; 641 NW2d 245
(2002).
-13-
After the trial court granted summary disposition and dismissed plaintiff’s retaliation and
breach of contract claims, defendants moved for sanctions against plaintiff and his attorney,
arguing that certain claims made by plaintiff were frivolous under MCR 2.625 and MCL
600.2591. Defendants contended that plaintiff’s discrimination claims arising from his 1998
probation, his federal civil rights act claims, and his invasion of privacy and breach of fiduciary
duty and public duties claims were barred by the statute of limitations and that plaintiff pursued
them and refused defense counsel’s request to voluntarily dismiss them. According to
defendants, plaintiff scheduled and conducted depositions, resulting in significant time and
expense for the defense, and then conceded during oral argument that his claims were timebarred and that he had no evidence to support any sort of disability discrimination because he
was not disabled, was not regarded as disabled, and could show no acts of discrimination. Thus,
defendants sought an order that the above-described claims were frivolous and imposing
sanctions. Plaintiff argued that none of his claims were frivolous and that an intervening change
in the law affected application of the statute of limitations and that once defendants raised the
statute of limitations argument, plaintiff withdrew all time-barred claims. Specifically, plaintiff
argued that once the Supreme Court invalidated the continuing violations doctrine, upon which
plaintiff’s discrimination claims depended, in Garg, supra, and defendants raised the issue,
plaintiff withdrew all time-barred claims. According to plaintiff, the depositions that he
scheduled and conducted were necessary for claims that were not barred by the statute of
limitations.
The trial court granted defendants’ motion. In so doing, the trial court ruled that
“[b]ecause there was no evidence to which the Plaintiff could base his discrimination claim,
there was no reason he should have assumed that the ‘continuing violations’ theory would be
applicable to his case. As this doctrine did not apply, the Plaintiff’s filing a suit based on it was
without arguable legal merit.” The trial court also rejected plaintiff’s argument that certain
depositions were necessary for his claims that were not time-barred:
While the Plaintiff continued to schedule and depose individuals after the
change in law had taken place, he alleges that the continued discovery was
important for the claims that were not barred by the statute of limitations. The
Defendants correctly point out, however, that the Plaintiff conceded Drs. Songco,
Kalenkiewicz, and Newbern were only involved in one of the time-barred claims,
yet their depositions were taken after the time the Plaintiff’s counsel indicted to
this Court that the claims were withdrawn. These depositions were unnecessarily
taken, at additional cost to the Defendants. Therefore, the Plaintiff is responsible
for all Defendants’ costs and fees associated with the depositions of Drs. Feyz,
Songco, and Newbern, and former hospital administrator Richard Hiltz.
In November 2008, the trial court entered a stipulated order regarding entry of costs. The
order awarded costs to defendants in the amount of $7,912.69. This amount includes $1,540.27
in revised taxable costs and $6,372.42 in costs and fees associated with the depositions of
defendants Hiltz and Drs. Newbern and Songco, who were both members of the ad hoc
committee. The order did not order payment of costs associated with Dr. Kalenkiewicz’s
deposition, although he was a member of the ad hoc committee as well.
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MCR 2.625(A)(2) provides that “[i]n an action filed on or after October 1, 1986, if the
court finds on motion of a party that an action or defense was frivolous, costs shall be awarded as
provided by MCL 600.2591.” MCL 600.2591 provides:
(1) Upon motion of any party, if a court finds that a civil action or defense
to a civil action was frivolous, the court that conducts the civil action shall award
to the prevailing party the costs and fees incurred by that party in connection with
the civil action by assessing the costs and fees against the nonprevailing party and
their attorney.
(2) The amount of costs and fees awarded under this section shall include
all reasonable costs actually incurred by the prevailing party and any costs
allowed by law or by court rule, including court costs and reasonable attorney
fees.
Under MCL 600.2591(3), an action is “frivolous” if at least one of the following
conditions is met:
(i) The party’s primary purpose in initiating the action or asserting the
defense was to harass, embarrass, or injure the prevailing party.
(ii) The party had no reasonable basis to believe that the facts underlying
that party’s legal position were in fact true.
(iii) The party’s legal position was devoid of arguable legal merit.
At the time plaintiff filed his lawsuit in 2002, he had a legal basis for asserting the
continuing violations doctrine to avoid the statute of limitations because the doctrine had not yet
been eliminated in Michigan. However, once our Supreme Court eliminated the doctrine of
continuing violations in Garg in 2005, plaintiff had no legal basis to continue to pursue his
claims that were barred by the statute of limitations.11 MCL 600.2591(3)(iii). Irrespective of the
reasonableness of plaintiff’s reliance on the continuing violations doctrine, however, plaintiff
had no evidence to establish causation for his retaliation claims. Therefore, on this basis,
plaintiff’s retaliation claims were frivolous under MCL 600.2591(3)(i) or (iii). The trial court
properly concluded that “[b]ecause there was no evidence to which the Plaintiff could base his
discrimination claim, there was no reason he should have assumed that the ‘continuing
violations’ theory would be applicable to his case.”
Plaintiff argues that the legal theories supporting his discrimination claims have arguable
legal merit. According to plaintiff, the legal theories supporting his discriminations claims
regarding the HPRP referral and the medical examination is that “it is an act of discrimination
11
Plaintiff concedes as much in his brief on appeal, stating: “The ad hoc committee members
were not involved in the subsequent 2000 disciplinary proceedings. Post-Garg there was no
longer a basis to assert the discrimination claims against the ad hoc committee members.”
-15-
under the Michigan statute for a place of public accommodation to require an unnecessary
medical examination or to make determinations regarding access to the public accommodation
on the basis of unnecessary medical examinations.” If this argument was raised before the trial
court, the trial court did not address it; therefore, it is not preserved for review. Fast Air, Inc,
supra at 549. In any event, this argument ignores the fact that the HPRP referral occurred in
1998 and that plaintiff has conceded and the trial court ruled that the 1998 discrimination claims
were barred by the statute of limitations. Thus, this argument is not persuasive.
Plaintiff does not dispute that even after the Supreme Court decided Garg, he continued
to schedule and conduct depositions of ad hoc committee members defendants Newbern, Songco
and Kalenkiewicz in April 2008. Plaintiff’s only claims against these defendants were
discrimination claims related to the 1998 peer review process and the resulting probation of
plaintiff in 1998, and these claims were clearly time-barred. Plaintiff does not dispute this, but
contends that the depositions of these defendants was necessary and appropriate because they
were vital witnesses regarding plaintiff’s breach of contract claim and their testimony was
required to ascertain whether the medical staff bylaws had been violated. This argument is not
persuasive. Plaintiff’s breach of contract claim was only asserted against defendant hospital and
defendant Hiltz, not against the ad hoc committee members. Furthermore, summary disposition
of this claim was proper under MCR 2.116(C)(8) because plaintiff’s pleading of this claim,
which only contained three paragraphs, was so deficient that summary disposition was proper
based on the pleadings alone. Thus, plaintiff’s pleading of his breach of contract claim was so
deficient that no amount of discovery could have saved it.
Once plaintiff became aware that his reliance on the continuing violations doctrine was
legally invalid, he should have immediately ceased any discovery involving the time-barred
claims. Instead, he scheduled and conducted depositions of ad hoc committee members Drs.
Songco, Newbern and Kalenkiewicz three years after Garg overturned the continuing violations
doctrine even though the only claim against these defendants involved the time-barred 1998 peer
review proceedings and resulting probation. We find that the purpose of conducting these
depositions was to harass, embarrass or injure defendants Drs. Songco, Newbern and
Kalenkiewicz when the only claim against them was for discrimination of a time-barred claim.
MCL 600.2591(3)(i). Thus, the trial court did not clearly err in concluding that plaintiff’s
conduct regarding the depositions was frivolous and in awarding sanctions to cover the cost of
these depositions.
Defendants argue on appeal that “it is clear from the record and the trial court’s opinion
that sanctions were warranted and intended to be granted by the court as to the depositions of
defendants Songco, Kalenkiewicz, Newbern and Miller, as the claims against these defendants
were time-barred and without any factual support.” The stipulated order awarded sanctions for
the costs of the depositions of Drs. Songco and Newborn and defendant Hiltz. Defendants assert
that the trial court actually intended to award sanctions for the costs and attorney fees associated
with the depositions of defendants Drs. Kalenkiewicz and Miller (in addition to defendants Drs.
Songco and Newbern). Thus, defendants suggest that the case should be remanded for the trial
court to recalculate the costs based on the cost of the depositions of the proper individuals.
It is true that it appears that the trial court intended to grant sanctions for costs associated
with the depositions of members of the ad hoc committee, since plaintiff conceded that his
claims against those individuals were time-barred. The ad hoc committee included Drs. Songco
-16-
and Newbern and Dr. Kalenkiewicz. The trial court stated in its memorandum of law “that the
Plaintiff conceded Drs. Songco, Kalenkiewicz, and Newbern were only involved in one of the
time-barred claims, yet their depositions were taken after the time the Plaintiff’s counsel
indicated to this Court that the claims were withdrawn. These depositions were unnecessarily
taken, at additional cost to the Defendants.” Thus, it does appear, as defendants suggest, that the
trial court intended to grant sanctions for the deposition of defendant Dr. Kalenkiewicz. What is
less clear, however, is defendants’ contention that the trial court intended to require plaintiff to
pay costs associated with the deposition of defendant Dr. Miller, the president of the hospital. In
fact, the trial court specifically stated in its memorandum of law that the cost associated with the
deposition of defendant Dr. Miller could not be taxed to plaintiff (although the trial court also
said this regarding the cost of the deposition of defendant Dr. Kalenkiewicz).
In any event, remand is not necessary because defendants stipulated to the order
regarding entry of costs. If defendants had any issues with the identity of the individuals for
whom deposition costs were to be paid, they should have raised those issues before the trial court
and clarified the proper parties for whom deposition costs were proper rather than stipulating to
the order. Any error regarding the proper individuals for whom deposition costs were due was
caused, at least in part, by defendants’ stipulation to the sanction order. A party cannot stipulate
to a matter and then complain on appeal that the resultant action was in error. Glen Lake-Crystal
River Watershed Riparians v Glen Lake Ass’n, 264 Mich App 523, 532; 695 NW2d 508 (2004).
Thus, we decline to remand based on this issue.
III. Conclusion
In sum, in Docket No. 285880, we conclude that the trial court properly granted summary
disposition of plaintiff’s breach of contract and retaliation claims. In light of our decision in this
regard, it is unnecessary for this Court to consider plaintiff’s argument regarding the trial court’s
denial of his motion to compel. In Docket No. 289226, we conclude that the trial court did not
err in awarding costs and sanctions to defendants under MCL 600.2591. Because remand is not
necessary, we do not address plaintiff’s argument regarding reassignment of the case to a
different trial judge.
Affirmed. Defendants, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Christopher M. Murray
/s/ Jane E. Markey
/s/ Stephen L. Borrello
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