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Kellerman v. Virtua West Jersey Hospital

August 4, 2009

ALAN KELLERMAN, M.D., PLAINTIFF-APPELLANT,
v.
VIRTUA WEST JERSEY HOSPITAL, A MEMBER OF THE VIRTUA WEST JERSEY HEALTH SYSTEM, INC.; VIRTUA WEST JERSEY HEALTH SYSTEM, INC.; VIRTUA HEALTH, INC.; PHILIP ARONOW, M.D.; GREG BUSH, V.P. OF MEDICAL AFFAIRS/MEDICAL DIRECTOR; CHRIS CHEKOURAS, C.E.O.; ROBERT DIRENZO, M.D.; JAMES P. DWYER, M.D.; STEPHEN GADOMSKI, M.D.; WILLIAM MOROWITZ, M.D.; RICHARD MILLER, C.E.O.; DONALD ORTH, M.D.; BRADFORD J. PORTER, D.D.S.; JOSEPH REICHMAN, M.D.; ALLEN SALAM, M.D.; HOWARD WINTER, M.D.; HELEN ORTIZ, R.N.; CATHY HUGHES, R.N.; AND CATHY SALVATI, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1252-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 30, 2009

Before Judges Lisa, Sapp-Peterson and Alvarez.

In this appeal, plaintiff, Alan Kellerman, M.D., appeals from the June 23, 2008 order granting summary judgment in favor of defendants: Virtua West Jersey Hospital, a member of the Virtua West Jersey Health System, Inc.; Virtua West Jersey Health System, Inc.; Virtua Health, Inc.; Philip Aronow, M.D.; Greg Bush, Vice President of Medical Affairs/Medical Director; Chris Chekouras, C.E.O.; Robert DiRenzo, M.D.; James P. Dwyer, M.D.; Stephen Gadomski, M.D.; William Morowitz, M.D.; Richard Miller, C.E.O.; Donald Orth, M.D.; Bradford J. Porter, D.D.S.; Joseph Reichman, M.D.; Allen Salam, M.D.; Howard Winter, M.D.; Helen Ortiz, R.N.; Cathy Hughes, R.N.; and Cathy Salvati. We affirm.

Plaintiff, a board-certified internist and a fellow of the American College of Physicians, has been practicing medicine for more than thirty-seven years. Until December 18, 2007, he held a medical staff membership and clinical privileges at Virtua West Jersey Hospital. On June 2, 2000, the Vice President of Medical Affairs at the hospital, defendant Joseph H. Reichman, M.D., informed plaintiff that "a pattern of disruptive behavior [had] been identified" and that plaintiff would be suspended if he did not "behave in a professional and cooperative manner." Plaintiff was summarily suspended on November 11, 2002, for thirteen days due to unprofessional conduct. Over the next four years, Dr. Reichman continued to receive complaints related to plaintiff's clinical practice and behavior at the clinic. Because of the number of complaints Dr. Reichman received from both staff and patients, on July 17, 2006, he informed plaintiff by letter that plaintiff must enroll in and be evaluated by the Professional Assistance Program of New Jersey by August 1, 2006, and that his failure to enroll in the program would result in summary suspension. Plaintiff did not enroll in the program but offered to explain his practices before the Medical Executive Committee (MEC), which declined plaintiff's offer.

On September 22, 2006, Dr. Reichman requested the MEC's permission to conduct a formal investigation regarding plaintiff's "clinical practice and behavior at the hospital." The MEC authorized Dr. Reichman and defendant, Bradford Porter, D.D.S., to conduct an investigation, which they completed on October 25. They recommended that plaintiff's medical staff membership and clinical privileges be terminated. The MEC unanimously approved the recommendation on October 26.

By letter dated October 30, 2006, Dr. Reichman notified plaintiff of the MEC's decision and informed him that pursuant to Article IV of the Policy on Appointment, Reappointment and Clinical Privileges of the Virtua - West Jersey Health System, Inc. (the Bylaws), he had thirty days to request a hearing. On November 22, 2006, through counsel, plaintiff requested a hearing, which was adjourned a number of times at the request of both plaintiff's and defendants' counsel.

The hearing was ultimately rescheduled for November 29, 2007, because plaintiff's counsel could not appear on October 25, 2007. On November 28, however, plaintiff's counsel informed defendants' counsel that because the hearing was being held more than forty-five days after the date of plaintiff's request for a hearing, in violation of the Bylaws, plaintiff would not attend the hearing. Plaintiff's counsel concluded, "[I]t is apparent that [plaintiff] is being railroaded."

The following day, defendants' counsel responded that pursuant to Article IV, Section B.3 of the Bylaws, a hearing need not be scheduled within forty-five days of the practitioner's request and that the Bylaws merely require that a hearing be scheduled no earlier than thirty days after notice of the hearing is sent. Counsel warned that under the Bylaws, plaintiff's failure to attend the hearing would be deemed to constitute voluntary acceptance of the MEC's recommendation. Plaintiff did not attend the hearing, and on December 18, 2007, the Board of Trustees unanimously approved the MEC's recommendation that plaintiff's medical staff membership and clinical privileges be terminated, effective immediately.

On January 9, 2008, plaintiff sent a letter to Gregory Busch, D.O., the Vice President of Medical Affairs at Virtua West Jersey Hospital, and James Dwyer, D.O., Virtua's Executive Vice President, intending that it serve as notice of his appeal from the Board of Trustees' decision. He claimed that he had "good cause" not to attend the hearing, which, pursuant to the Bylaws, would negate the proposition that he had voluntarily accepted the MEC's recommendation. The purported good cause was that he had been "continuously denied due process of law beginning on July 5, 2006[,] when the [EMC] ignored the requirements of the By[]laws and recommended that he be evaluated by the Professional Assistance Program."

In the letter, plaintiff referred specifically to several actions by the hospital that had violated his due process rights. He claimed that when notifying plaintiff that he would be summarily suspended if he did not enroll in the Professional Assistance Program, Dr. Reichman did not follow the process outlined in the Bylaws, including documentation of the complaint, an initial review, and an investigation. He asserted that Dr. Reichman also failed to follow the eight-step process delineated in the Policy Regarding Disruptive Conduct when he informed plaintiff that the MEC had recommended his termination due to "disruptive behavior." He then claimed that the MEC attempted to circumvent the eight-step process by re-labeling his conduct as "inappropriate patient care" and "unprofessional conduct" in the hearing notice and statement of reasons.

In a January 15, 2008 letter from Virtua Vice President and General Counsel Mary P. Hugues, plaintiff was advised that he did not have a right to appeal and reiterated that plaintiff's failure to attend the hearing constituted voluntary acceptance of the MEC's recommendation. Additionally, Hugues advised that the Bylaws only provide for an appeal of a hearing panel's recommendation, and that the recommendation of the MEC, as implemented by the Board of Trustees, is final.

On February 28, 2008, plaintiff filed a verified complaint and order to show cause in the Chancery Division, alleging breach of contract, breach of the covenant of good faith and fair dealing, tortious interference with prospective economic advantage, violation of due process, defamation and conspiracy. Plaintiff sought reinstatement and damages. The matter was transferred to the Law Division where defendants moved for summary judgment, urging that plaintiff had failed to exhaust administrative remedies. In an oral decision rendered from the bench, the court rejected plaintiff's contention that his appearance at a hearing would have been futile, noting that the hearing would have afforded plaintiff the opportunity: to have been heard and to have made arguments concerning what he perceived to be procedural defects. In other words, he would have had the opportunity at such a hearing to argue that to the extent that his behavior, based on these detailed allegations, really represented disruptive behavior or alternatively to the ...


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