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DiTrolio v. Antiles

Decided: September 27, 1994.

JOSEPH V. DITROLIO, PLAINTIFF-APPELLANT,
v.
LEONARD ANTILES, PETER BOORJIAN, DOMENIC FALCONE, OLEH BACHYNSKY, AND THE MONTCLAIR UROLOGICAL GROUP, P.A., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court, Law Division, Essex County.

Before Judges Michels, Skillman and Kestin.

Kestin

The opinion of the court was delivered by KESTIN, J.A.D.

Plaintiff's complaint was dismissed by the trial court on entire controversy grounds, R. 4:30A, by reason of his failure to have joined the defendants as parties in an earlier lawsuit. The trial court also based its dismissal on plaintiff'S failure to comply with R. 4:5-1(b)(2). Other grounds for dismissing plaintiff's suit raised in defendants' motion for summary judgment were not addressed by the trial court.

In 1984, plaintiff was admitted to the medical staff of Mountainside Hospital (Hospital) as a provisional staff member in the Department of Urology (Department), i.e., subject to supervision and observation by active staff members. The Hospital's bylaws provided that such an appointment was for a two-year term, whereupon the individual could either be promoted to the position of active staff member in the rank of associate attending physician, with no supervision, or reappointed for a single additional term as a provisional staff member with supervision. In due course, in 1986, plaintiff applied for appointment as an active staff member.

At that time, the individual defendants in this action comprised both the Department and its Credentials Committee. Three of them, defendants Antiles, Boorjian and Falcone, practiced together as shareholders of defendant Montclair Urological Group (Group). Defendant Bachynsky practiced at the same address, but not as a member of the Group.

When plaintiff's 1986 application for appointment to the active staff came before the Hospital's Staff Membership and Credentials Committee (M&C Committee), the Department recommended

against appointment as an active staff member and for continued appointment as a provisional staff member under supervision and observation. In their review of plaintiff's record, the members of the Department determined "that Dr. DiTrolio has not done a sufficient number of cases to have supervision and observation removed. Therefore, he is not eligible to be promoted to Associate Attending." The Department, however, also recommended that plaintiff be permitted to perform four specified procedures without supervision or observation. The M&C Committee accepted these recommendations.

The following year, on August 20, 1987, plaintiff once again requested promotion from provisional to associate attending status; and, once again, the Department recommended against the promotion, citing seven cases that "typified Dr. DiTrolio's inability to perform up to the standards of the Mountainside Urology Department." The M&C Committee, of which defendant Antiles was a member, on February 16, 1988, accepted the Department's recommendation that plaintiff "not be reappointed to the [Hospital] medical staff because of his inability to maintain adequacy of medical care in the [Department]." The committee further recommended that plaintiff "however continue with his current privileges until due process is completed."

In a letter dated February 17, 1988, plaintiff's attorney requested a hearing pursuant to the Hospital's bylaws regarding plaintiff's "application for promotion to associate attending status . . . and removal of all departmental observation and supervision," asserting "that the Membership and Credentials Committee has failed to submit to the Medical Board a recommendation regarding Dr. DiTrolio's application for promotion from provisional to associate attending status." Based on this request, an ad hoc committee of the Hospital's medical staff (Ad Hoc Committee) was constituted. It conducted hearings on nine days between May 18 and July 5, 1988, focusing

primarily on seven cases presented by the Membership and Credentials Committee to support its recommendation. However, extensive material was also presented, and considered by the Committee, relating to the supervision of Dr. DiTrolio since

his admission to the Staff, as well as the functioning of the Department of Urology and the review process carried out by the Membership and Credentials Committee.

The Ad Hoc Committee found that the care provided by plaintiff in the seven reviewed cases "was generally acceptable and does not justify a recommendation for non-reappointment." This Committee also determined, because plaintiff had not had an opportunity to demonstrate competence at the Hospital in three areas of complex urological surgery, that before unsupervised surgical privileges be granted with respect to radical nephrectomy, open ureteral procedures, and total cystectomy, plaintiff

present evidence, such as two or three cases in each category, done at another hospital for review of adequacy by an Ad Hoc Committee. This Committee should include at least one urological consultant from another hospital. In the event that this material is not available, an outside urologist should be hired by the hospital to supervise these cases done at Mountainside Hospital. This consultant should report directly to the Medical Staff President.

In its review of the seven cases presented, the Ad Hoc Committee heard medical testimony on behalf of the M&C Committee from the four individual defendants. Plaintiff testified on his own behalf and also presented the testimony of Drs. Selwyn Freed and Joseph J. Seebode. The Ad Hoc Committee summarized its review of each of the seven cases and concluded, with respect to all, that plaintiff's overall management of the cases had been acceptable.

The Ad Hoc Committee also stated some concerns about "the procedures followed by the Department of Urology and the Membership and Credentials Committee in this case," but noted that "the [Ad Hoc] Committee cannot conclude that there was intentional wrongdoing." The specific concerns were:

1. Department of Urology meetings were held in the Chairman's office, rather than in the hospital. Because departmental meetings are official hospital business, they should be conducted on the hospital premises.

2. Assigning supervision has apparently been at the sole discretion of the Chairman. A specific procedure for assigning supervision should be included in the Department rules, and all active members of the Department should be included to provide broadened assessment of competence.

3. The Committee is concerned that Dr. DiTrolio was not adequately informed and properly counseled at the time criticisms of his work apparently arose. It

is extremely important that if alleged deficiencies exist, they be discussed openly and constructively with the physician under supervision at the time they occur, not only in fairness to the physician, but in order to maintain and improve patient care in an ongoing basis.

4 The Committee is concerned that specific criteria for advancing a physician from the provisional Staff or removing supervision and observation do not exist. Each Department should establish such criteria, which should be included in Department Rules and Regulations and which should include a reasonable number of cases, by category, to be reviewed, particularly in departments doing technical procedures. The total period of supervision and observation should not be inordinately long and generally should be completed well before initial application for promotion to the active Staff.

5. Supervision should only be reinstituted in accordance with the due process in our Bylaws.

6. To foster professional and administrative vitality within each department, directors should not serve more than two consecutive 2-year terms during any 8-year period.

7. To promote impartiality, the Membership and Credentials Committee should not consist of Department Directors. The Chairman should be an At-Large member of the Medical Board and other members appointed by the President of the Medical Staff or elected by the Medical Staff as a whole.

8. The Committee is concerned about the process which was followed in the Membership and Credentials Committee. Since serious criticism of a physician could affect his or her hospital privileges, it is imperative that the basis of that criticism be meticulously explored. Written procedures for this process should be established, which should include a factfinding committee which would be empowered to perform a complete investigation and make recommendations to the full Committee.

9. The hearing process in our By-laws should be reviewed and revised.

10. A member's file should be available to him.

The Hospital's Medical Board then reviewed the matter based upon the reports of the M&C Committee and the Ad Hoc Committee, as well as statements from plaintiff, defendant Antiles, and a Dr. Holtz. The Medical Board concluded that plaintiff "should be appointed as an Associate Attending at Mountainside Hospital." It differed with the Conclusions of the Ad Hoc Committee in respect of the seven cases that had been reviewed, however, determining

that in two cases . . . Dr. DiTrolio deviated from the standard of good urological treatment and that the remaining five cases were not clear deviations from accepted urological standards. It was further felt by the Medical Board that these

two cases over a period of four years do not represent sufficient deviation from good standard of care to justify non-appointment to the Active Staff. . . .

The Medical Board concluded further:

Since Dr. DiTrolio has not done any major intra-abdominal or retroperitoneal cases during the four years of his staff appointment at Mountainside Hospital, he should be supervised on each of these major cases as he does them in the near future. Provided they are properly managed, three cases each of trans-abdominal renal surgery, ureteral surgery and bladder surgery should be adequate for evaluation of Dr. DiTrolio's abilities in such cases.

The supervision of Dr. DiTrolio for trans-abdominal renal surgery, utereral surgery and bladder surgery should be performed by a member of the Mountainside Hospital Department of Urology.

Dr. DiTrolio shall be permitted to do all other urological procedures without supervision.

It is important to provide supervision within the department in this manner so that there is a continuum of responsibility within the Department of Urology at Mountainside Hospital. Quality assurance is a function of the department in which a physician works. Dr. DiTrolio must be brought into the department as a responsible and responsive member so that the Department of Urology can continue to be a strong, viable specialty at Mountainside Hospital.

Plaintiff then, pursuant to the Hospital's bylaws, requested "appellate review by the [Hospital's] Board of Trustees" of the Medical Board's decision that the continuing supervision of plaintiff's performance in the specified procedures be performed by the Department of Urology. The Board of Trustees appointed an Appellate Review Committee which reported on February 2, 1989.

The Appellate Review Committee rejected as inadequate or immaterial some new evidence proferred on behalf of the M&C Committee focusing on a factual element of one of the seven review cases, as well as some allegations raised by plaintiff "that certain individuals on the Medical Staff attempted to bring pressure on . . . a member of [the Appellate Review] Committee." The Appellate Review Committee saw itself as confronted with "two substantive issues . . . 1) Whether it should accept the finding of the Ad Hoc Hearing Committee and the Medical Board that Dr. DiTrolio be appointed as an Associate Attending; and 2) what terms of supervision, if any, should be imposed on Dr. DiTrolio if he is reappointed." As to the first issue, the committee concluded that plaintiff "should be reappointed to the Medical

Staff with the rank of Associate Attending in the Department of Urology."

With respect to the second issue, the Appellate Review Committee, notwithstanding its awareness of periodic disagreements between plaintiff and his supervisors within the Department, recognized, as had the Medical Board, "the benefits to the patients that have resulted from the supervision provided by the members of the Department." The Committee went on to note that

the Department of Urology is responsible, in the first instance, for reviewing the quality of care of its members and for making recommendations to the Board of Trustees, through the appropriate Medical Staff committees, concerning the privileges and rank of its members. While it is true that there have been some conflicts between Dr. DiTrolio and his supervisors, the Committee expects that both Dr. DiTrolio and the Department members who act as supervisors will act professionally and responsibly to assure the quality of patient care in the Hospital. The Committee expects that supervision of Dr. DiTrolio can and will be carried out in the future appropriately in accordance with the regular procedures of the Department and the Rules and Regulations of the Medical staff.

The Appellate Review Committee concluded in this connection that

supervision for Dr. DiTrolio should be continued for the following classes of cases: a) trans-abdominal renal surgery, b) ureteral surgery, and c) bladder surgery.

Supervision should be provided by the Department of Urology in accordance with the regular procedures of the Department and the Rules and Regulations of the Medical Staff. Such supervision should include observation, as that term is defined in the Medical Staff By-laws.

Supervision for three cases in each class should be adequate for evaluation. Dr. DiTrolio should be permitted to do all other urological procedures without supervision.

On February 13, 1989, the Board of Trustees adopted the findings and Conclusions of its Appellate Review Committee.

Plaintiff then filed suit against the Hospital and its Board of Trustees in the Chancery Division alleging the foregoing facts and seeking purely equitable relief. Few personal references to any of the defendants in this action are to be found in the first complaint. That complaint sought a review of the Hospital's procedures as they had been applied to plaintiff and an order embodying the essential terms of the Ad Hoc Committee's recommendations concerning continuing supervision in the three classes of cases at

issue. Plaintiff alleged, inter alia, that he had been subjected to an unfair procedure; that he had been denied his "right to due process under the Bylaws and New Jersey case law"; and that the basis of the Medical Board's decision was inadequate, rendering its "actions, findings and recommendations . . . arbitrary, unreasonable and capricious."

After almost a year, during which depositions were taken of the four individual defendants in this action, plaintiff agreed to dismiss the then pending action without prejudice; and also agreed not to institute any new action against the Hospital and its Board of Trustees based upon the foregoing allegations or any conduct of those defendants ...


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