SUDHIDEB MUKHERJEE, M.D. v. HOSPITAL CORPORATION OF KENTUCKY, INC., D/B/A COLUMBIA HOSPITAL GEORGETOWN
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RENDERED: OCTOBER 4, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-002098-MR
SUDHIDEB MUKHERJEE, M.D.
v.
APPELLANT
APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE WILLIAM TRUDE, JR., SPECIAL JUDGE
ACTION NO. 97-CI-00019
HOSPITAL CORPORATION OF KENTUCKY, INC.,
D/B/A COLUMBIA HOSPITAL GEORGETOWN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, HUDDLESTON AND JOHNSON, JUDGES.
JOHNSON, JUDGE:
Sudhideb Mukherjee, M.D., has appealed from an
order of the Scott Circuit Court entered on August 31, 2001,
which granted summary judgment to the appellee, Hospital
Corporation of Kentucky, Inc., d/b/a Columbia Hospital Georgetown
formerly d/b/a Scott General Hospital’s (hereinafter Hospital).
Having concluded that there was no genuine issue as to any
material fact and that the Hospital was entitled to judgment as a
matter of law,1 we affirm.
Dr. Mukherjee, a general surgeon, began working at the
Hospital in 1972.
During his next 23 years at the Hospital, Dr.
Mukherjee served as chief of the medical staff and as chief of
surgery; he also served on the Hospital’s Board of Trustees and
on various other committees.
In 1991 Dr. Mukherjee commenced
training to become qualified as a laparoscopic surgeon.2
After
Dr. Mukherjee received extensive training, the Hospital granted
him laparoscopic surgery privileges.
In June 1995 Ken Unger, the chief executive officer for
the Hospital, began to receive complaints from the staff
concerning Dr. Mukherjee’s laparoscopic surgeries.3
Specifically, the complaints alleged that Dr. Mukherjee was
experiencing an unusually high conversion rate, i.e., a high
number of his laparoscopic surgeries had to be “converted” during
the operation into conventional surgeries.
According to Dr.
Mukherjee, conversions could be the result of any number of
complications such as excess bleeding, equipment failure,
excessive disease, and in some cases, poor technique by the
1
Kentucky Rules of Civil Procedure (CR) 56.02.
2
Laparoscopic surgery is a procedure used for various types
of surgery within the abdominal cavity. One of its principal
benefits is that it allows for smaller incisions as compared to
conventional surgeries, and many times it is better for the
patient.
3
Unger told Dr. Mukherjee that an operating room nurse and
staff members from the medical records department had complained
to him regarding Dr. Mukherjee’s laparoscopic surgeries.
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surgeon.
When Unger approached Dr. Mukherjee regarding these
complaints, Dr. Mukherjee suggested that his charts be sent to
the University of Louisville School of Medicine for review.
Unger agreed and Dr. Mukherjee’s charts were in fact sent for
review.
Dr. Hiram Polk, a professor and chairman of the
Department of Surgery at the University of Louisville School of
Medicine, reviewed Dr. Mukherjee’s charts.
In a letter dated
July 3, 1995, Dr. Polk opined that the number of conversions for
a surgeon with Dr. Mukherjee’s experience was “reasonable.”
Dr.
Polk suggested that Dr. Mukherjee take additional laparoscopic
surgery courses and that he be supervised during at least his
next 10 laparoscopic surgeries.
Both Dr. Mukherjee and Unger had
doubts as to the thoroughness of Dr. Polk’s review.
In fact, Dr.
Mukherjee claims that Dr. Polk told him that he did not review
all of the charts that had been sent to him.
Dr. Mukherjee
subsequently requested that another investigation be conducted by
the Hospital’s Medical Executive Committee (MEC).
Unger agreed
that further investigation was warranted.
In a letter dated July 25, 1995, Unger asked that the
MEC “initiate an investigation of Dr. Sudhideb Mukherjee’s
laparoscopic surgery abilities and complications in order to
determine if any modification of his privileges is required.”
Unger stated that he was not requesting that Dr. Mukherjee’s
privileges be suspended.
He did state, however, that if Dr.
Mukherjee scheduled a laparoscopic surgery, he would request that
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his privileges be summarily suspended.
According to Dr.
Mukherjee, Unger asked him if he would voluntarily relinquish his
hospital privileges to perform laparoscopic surgeries until the
MEC’s investigation was complete.
Dr. Mukherjee stated that he
agreed to refrain from scheduling any laparoscopic surgeries
during this time period in order to avoid causing any potential
hardships to his patients.4
In addition, Dr. Mukherjee wanted to
avoid any blemishes on his permanent record which would have
occurred if his hospital privileges had been summarily
suspended.5
Following its investigation, the MEC voted on January
12, 1996, to recommend that “no sanctions or limitations of
privileges be rendered in regard to Dr. Mukherjee’s laparoscopic
surgery abilities or complications.”
On January 23, 1996, the
Hospital’s Board of Trustees adopted the MEC’s recommendations,
and Dr. Mukherjee was cleared to resume performing laparoscopic
surgeries.
Approximately one year later, on January 15, 1997, Dr.
Mukherjee filed his complaint in Scott Circuit Court.
In his
complaint Dr. Mukherjee alleged (1) that the Hospital violated a
covenant of good faith by arbitrarily suspending his hospital
4
Dr. Mukherjee stated that he did not want to schedule a
laparoscopic surgery and then be forced to cancel should his
hospital privileges be suspended.
5
If Dr. Mukherjee’s laparoscopic hospital privileges had
been suspended, his name would have been placed in the National
Practitioner Data Base, which is designed to prevent incompetent
doctors from moving from state-to-state in an attempt to conceal
past problems.
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privileges to perform laparoscopic surgeries; (2) that the
Hospital failed to act in good faith by sending medical reviewers
incomplete information regarding Dr. Mukherjee’s past
laparoscopic surgeries; (3) that by arbitrarily suspending his
hospital privileges, the Hospital improperly interfered with Dr.
Mukherjee’s existing and prospective contractual relationships;
and (4) that the Hospital breached an implied contract by failing
to follow its Bylaws.
In his complaint Dr. Mukherjee sought
damages to compensate him for, inter alia, loss of past and
future income, and harm to his reputation as a surgeon.
In its
answer the Hospital claimed that it was entitled to immunity
under both state and federal peer review statutes.
Subsequently, in early 1997, Dr. Mukherjee filed
several discovery requests, seeking both documents and other
information related to the peer review conducted by Dr. Polk and
the MEC.
On May 27, 1997, the Hospital filed a motion for a
protective order, claiming that pursuant to KRS6 311.377(2), the
information Dr. Mukherjee sought was protected from discovery by
the peer review privilege.
In addition, on August 13, 1997, the
Hospital filed a motion for summary judgment, and asserted that
it was immune from liability on Dr. Mukherjee’s damage claims
under both the Health Care Quality Improvement Act of 1986
(HCQIA)7 and KRS 311.377.8
6
In response Dr. Mukherjee argued that
Kentucky Revised Statutes.
7
See 42 U.S.C. § 11101, et seq. (2000). The HCQIA provides
immunity from damages for covered participants in a “professional
(continued...)
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KRS 311.377(2) was unconstitutional under § 28 and § 116 of the
Kentucky Constitution.
The trial court agreed with Dr. Mukherjee
that KRS 311.377 was unconstitutional and on November 19, 1997,
it entered an order denying both the Hospital’s motion for a
protective order and its motion for summary judgment.9
The Hospital then filed a petition for a writ of
prohibition10 and a writ of mandamus11 with this Court, seeking to
prohibit Judge Trude from requiring discovery of the information
related to the peer review of Dr. Mukherjee.
On March 19, 1998,
this Court denied the requested relief, holding that the Hospital
had “failed to demonstrate its entitlement to the extraordinary
relief of prohibition.”12
On February 18, 1999, the Supreme
Court of Kentucky reversed the decision of this Court and granted
the relief sought by the Hospital.
In so doing the Supreme Court
held that KRS 311.377(2) did not violate § 28 or § 116 of the
Kentucky Constitution, and it stated that the information sought
by Dr. Mukherjee fell “squarely within the privilege afforded by
7
(...continued)
review action” if certain conditions of the statute are met.
8
KRS 311.377(1) also provides immunity from damages for any
“good faith action” taken by covered participants in a peer
review procedure.
9
The Hon. William W. Trude, Special Judge, presided over
this case in Scott Circuit Court.
10
See CR 81.
11
Id.
12
Hospital Corp. of Kentucky, Inc. v. William W. Trude, Jr.,
No. 98-CA-0226-OA.
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KRS 311.377.”13
The Court declined to consider Dr. Mukherjee’s
arguments that the Hospital had either waived the privilege or
consented to discovery, since the trial court had not yet had an
opportunity to address those issues.
On remand to the trial court, both parties presented
arguments regarding the discoverability of the documents
pertaining to the peer review of Dr. Mukherjee.
On August 9,
2000, the trial court ruled that all of the documents sought by
Dr. Mukherjee were not discoverable and that the Hospital had not
waived its privilege.
Subsequently, on February 16, 2001, the
Hospital filed a renewed motion for summary judgment.
After
initially denying this motion, the trial court granted the
Hospital’s motion for summary judgment on August 31, 2001.14
This appeal followed.
Dr. Mukherjee raises three claims of error in his
appeal: (1) that genuine issues of material fact exist which
preclude a summary judgment on the Hospital’s claim of
entitlement to immunity under KRS 311.377; (2) that genuine
issues of material fact exist which preclude a summary judgment
on the Hospital’s claim of entitlement to immunity under the
HCQIA; and (3) that KRS 311.377 is unconstitutional under § 14
and § 54 of the Kentucky Constitution.
13
Case Nos. 98-SC-000321-MR and 98-SC-000389-MR.
14
In its order granting the Hospital’s motion for summary
judgment, the trial court did not state the grounds upon which
summary judgment was granted.
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In support of his argument that genuine issues of
material fact exist which preclude a summary judgment on the
Hospital’s claim of entitlement to immunity under KRS 311.377,
Dr. Mukherjee argues:
KRS 311.377 grants the Hospital immunity
from lawsuits when it conducts a physician’s
peer review if, and only if, the review is
conducted in good faith. The issue of “good
faith” is a material fact which must be
decided by a jury because it is an essential
element of the case.
In Steelvest, Inc. v. Scansteel Service Center, Inc.,15
our Supreme Court discussed the proper procedure for reviewing a
trial court’s granting of a motion for summary judgment:
The relevant Kentucky rule relating to
summary judgment, CR 56.03, authorizes such a
judgment "if the pleadings, depositions,
answers to interrogatories, stipulations, and
admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law."
The benchmark case of Paintsville
Hospital v. Rose,16 specifically held that
the proper function of summary judgment is to
terminate litigation when, as a matter of
law, it appears that it would be impossible
for the respondent to produce evidence at the
trial warranting a judgment in his favor
[emphasis added].
In the case at bar, we believe that it would be impossible for
Dr. Mukherjee to produce evidence at trial warranting a judgment
15
Ky., 807 S.W.2d 476, 480 (1991).
16
Ky., 683 S.W.2d 255 (1985).
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in his favor.
Thus, we hold that summary judgment in favor of
the Hospital was properly granted.
In its order entered on August 9, 2000, the trial court
ruled that pursuant to KRS 311.377(2), “none of the documents
requested by [Dr. Mukherjee] pertaining to the peer review of
[Dr. Mukherjee] are discoverable. . . .”
In this appeal, Dr.
Mukherjee has failed to challenge the trial court’s discovery
ruling.
Dr. Mukherjee argues that “[t]he primary issue of a
material fact is whether the Hospital conducted the peer review
of Dr. Mukherjee’s laparoscopic skills in good faith.”
Then, Dr.
Mukherjee identifies what he considers “are the facts which the
jury would consider to determine whether the Hospital acted in
‘good faith’[.]”
He lists four broad categories of alleged
factual issues:
(1) Dr. Mukherjee was summarily suspended
from doing laparoscopy surgeries contrary to
Medical Staff Bylaws . . . [which provide
that] a physician’s privileges “may be
summarily suspended or modified prior to or
during an investigation . . . if it
reasonably appears that failure to do so may
result in imminent danger to the health or
safety of any individual.”
(2) [N]o one ever made any finding that any
of Dr. Mukherjee’s patients were in “imminent
danger.” This is a necessary finding before
there can be a summary suspension.
(3) [T]he Hospital did not follow the time
limitations set out in the Medical Staff
Bylaws for when a physician is summarily
suspended.
(4) [T]he Hospital did not send the
Reviewers, Dr. Polk and Dr. Warshaw[,] all of
the medical records for them to review.
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We note that in arguing the evidence favorable to him
as to these issues of fact, Dr. Mukherjee relies almost
exclusively upon the documents which the trial court ruled were
privileged and not discoverable.
According to Dr. Mukherjee,
these documents show “bad faith” action on the part of the
Hospital.
However, we simply do not see how Dr. Mukherjee could
possibly “produce evidence at trial warranting a judgment in his
favor,” when the very evidence he relies upon to prove bad faith
action has been held to be non-discoverable, and hence,
inadmissible at trial.
Without these non-discoverable documents,
there is no genuine issue as to any material fact, and pursuant
to KRS 311.377, the Hospital was entitled to summary judgment as
a matter of law.
Dr. Mukherjee also argues that genuine issues of
material fact exist which preclude a summary judgment on the
Hospital’s claim of entitlement to immunity under the HCQIA.
However, in light of our previous holding, we need not address
the merits of this argument, since we have already determined
that the Hospital was entitled to summary judgment pursuant to
KRS 311.377.
Accordingly, this issue is moot and will not be
considered.17
17
See Benton v. Clay, 192 Ky. 497, 499, 233 S.W. 1041 (1921)
(holding that “it is a firmly settled rule in this and all other
courts that it will not assume jurisdiction to determine abstract
or moot questions and thereby consume and appropriate its time in
academic discussion, since courts are created for the purpose of
trying cases rather than questions”).
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Finally, Dr. Mukherjee argues that KRS 311.377 violates
both § 14 and § 54 of the Kentucky Constitution.
First, we note
that our review of the record shows that Dr. Mukherjee never
argued before the trial court that KRS 311.377 violates § 54 of
the Kentucky Constitution.
It is well-settled that arguments not
presented to the trial court cannot be argued for the first time
on appeal.18
Moreover, Dr. Mukherjee has presented no arguments
in support of this proposition, beyond his bare assertion that
KRS 311.377 violates § 54 of the Kentucky Constitution.
He
claims in one of the headings in his brief that § 54 has been
violated, but does not thereafter offer any basis for this
argument.
Accordingly, we decline to address this issue.
In addition, Dr. Mukherjee is precluded from arguing
that KRS 311.377 violates § 14 of the Kentucky Constitution under
the doctrine of res judicata.
In Burkett v. Board of
Education,19 this Court stated:
The record herein indicates that
appellee conducted a hearing in 1973 which
resulted in appellant's loss of employment
and Burkett appealed to the circuit court
which reversed the board because it was of
the opinion that the termination process was
a denial of due process. That judgment was
reversed by the Court on May 23, 1975.
Burkett pitches the present appeal upon
denial of due process occasioned by an
alleged actual bias of some board members
using as the basis for his argument the
evidence adduced upon voir dire examination
of the board prior to the hearing in 1973.
18
Hutchings v. Louisville Trust Co., Ky., 276 S.W.2d 461,
466 (1954).
19
Ky.App., 558 S.W.2d 626, 627-28 (1977).
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Since denial of due process is the issue in
both appeals and since the evidentiary
support for the contention was available
prior to the Court's opinion, we believe the
doctrine of res judicata prevents the
relitigation of the same issues in a
subsequent appeal and includes every matter
belonging to the subject of the litigation
which could have been, as well as those which
were, introduced in support of the contention
of the parties on the first appeal [emphasis
original].
In the case at bar, Dr. Mukherjee previously argued before the
trial court that KRS 311.377 violates § 28 and § 116 of the
Kentucky Constitution.
The issue was heard in an interlocutory
appeal by our Supreme Court, which disagreed with Dr. Mukherjee
and upheld the constitutionality of KRS 311.377.20
Subsequent to
this ruling from the Supreme Court, Dr. Mukherjee argued before
the trial court that KRS 311.377 violates § 14 of the Kentucky
Constitution.
This kind of piecemeal litigation is exactly what
the doctrine of res judicata is intended to prohibit.
Therefore,
Dr. Mukherjee’s current argument that KRS 311.377 violates § 14
of the Kentucky Constitution could have been raised and should
have been raised in his first argument before the trial court,
and thereafter in his prior appeal.
Accordingly, we decline to
address the merits of this argument on this appeal.
For the foregoing reasons, the summary judgment of the
Scott Circuit Court is affirmed.
ALL CONCUR.
20
Hospital Corporation of Kentucky, Inc. v. Trude, No. 98SC-0321-MR, 98-SC-0389-MR (February 18, 1999).
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BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Richard M. Rawdon, Jr.
Georgetown, Kentucky
Hiram Ely III
Andrew James Murray
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLEE:
Hiram Ely III
Louisville, Kentucky
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