Khan v. St. Mary Hospital

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

)

NAZIR KHAN

)

)

Plaintiff,

)

) No. 20 C 3819

v.

)

) Judge Virginia M. Kendall

PRESENCE ST. MARY AND ST.

)

ELIZABETH HOSPITALS, et al.,

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Defendants Presence Chicago Hospitals Network d/b/a Presence Saints Mary and Elizabeth

Medical Center (“Presence” or the “Hospital”), Laura Concannon, MD, Nora Byrne, JD, Norma

Thornton, Thomas Malvar, MD, David Hines, MD, Ada Arias, MD, Raghu Ramadurai, MD,

Ernesto Cabrera, MD, Olga Saavedra, MD, Michael Maghrabi, DPM, Alejandra Ditryk, RN, and

the Board of Directors for Presence Saints Mary and Elizabeth Medical Center have filed a Motion

to Dismiss Plaintiff’s Amended Complaint. [Dkt. 50]. Defendants argue that this Court does not

have subject matter jurisdiction and Plaintiff has failed to state a claim. Certain Defendants also

argue that proper service has not been effected. For the reasons discussed below, the Court grants

Defendants’ Motion to Dismiss.

BACKGROUND

On a motion to dismiss under Rule 12(b)(6), the Court accepts the Complaint’s well-

pleaded factual allegations and draws all reasonable inferences in the non-moving party’s favor,

but not its legal conclusions. See Smoke Shop, LLC v. United States, 761 F.3d 779, 785 (7th Cir.

2014). The facts below come from Plaintiff’s Amended Complaint (Dkt. 35) and the Court accepts

them as true for purposes of reviewing this Motion. See Vinson v. Vermillion Cty., Ill., 776 F.3d

924, 925 (7th Cir. 2015).

Plaintiff has practiced cardiovascular and thoracic surgery since 1983. (Doc. 35 at 2).

Plaintiff is a highly skilled and competent surgeon who can perform complicated cardiovascular

and thoracic surgeries. (Id. at 2–3). In 1998, Plaintiff became a member of the medical staff at

Saint Elizabeth’s Hospital which later joined St. Mary Hospital as Presence Saints Mary and

Elizabeth’s Hospital in 2005 (“the Hospital”). (Id. at 3). In November of 2017, Dr. Khan alleges

that Martin Judd, the CEO of the Hospital and Laura Concannon, M.D., Chief Medical Officer of

the Hospital, formed a conspiracy to coerce him into taking a leave of absence from the Hospital.

(Id. at 4, 8–9). Defendants Judd and Dr. Concannon acted in concert with two presidents of the

medical staff, Dr. Ada Arias and Dr. Raghu Ramadurai, and the hospital attorney to remove

Plaintiff. (Id. at 4). The intent of the conspiracy was to remove the Plaintiff from the medical staff

so that the hospital could use its own radiologists to perform and charge for these endovascular

procedures that Plaintiff was performing, therein removing competition from the other

cardiovascular and thoracic surgeons on staff. (Id.).

On November 3, 2017, Judd and Dr. Concannon called Plaintiff into a meeting where Judd

explicitly asked Plaintiff to resign from the medical staff. (Id. at 7). Plaintiff asked why he was

being asked to resign and was told there was a “pattern,” but without any specific details as to what

the pattern was. (Id.). Judd and Dr. Concannon told Plaintiff to immediately sign a Leave of

Absence letter, which Plaintiff did under duress. (Id.). The Leave of Absence was effective

November 4, 2017. (Id.). Plaintiff alleges the Leave of Absence letter violated hospital bylaws

because it did not state the approximate duration of the leave of absence. (Id. at 8). Additionally,

pursuant to the alleged conspiracy, on November 17, 2017, the Medical Executive Committee

(MEC) appointed an Investigative Committee pursuant to the hospital bylaws to address the quality

concerns related to Dr. Khan’s practice at the Hospital. (Id. at 7–8, 12). The Presence Quality

Assurance Committee identified four surgical cases performed by Dr. Khan that raised clinical

concerns, and identified clinical concerns related to a high infection rate, responsiveness to calls

and pages, and case management trends. (Id. at 10–11). The MEC notified Plaintiff that he was

required to get a neuro-psychological and a physical exam to address the clinical concerns from

the Investigative Committee, which Dr. Khan refused to undergo, arguing there was no justifiable

reason for him to proceed with the testing. (Id. at 12, 23). On December 7th, 2017, Plaintiff sent

a letter asking that his six-month log of surgical cases be sent to an outside reviewer with respect

to the evaluation of outcomes of surgery and infection rate. (Id. at 11). Dr. Khan’s request for

outside review was ignored. (Id.). Dr. Khan’s privileges were voluntarily terminated on June 18,

2018. (Id. at 24).

Dr. Khan brings claims of Violation of Hospital Bylaws, Fraudulent Actions and Wrongful

Termination of Plaintiff’s Hospital Privileges, Violation of the Health Care Quality Improvement

Act, Breach of Contract, Violation of the Federal Antitrust Laws, Violation of the Civil Rights Act

of 1991, Defamation, and Mental Distress.

LEGAL STANDARD

A motion to dismiss for failure to state a claim challenges the sufficiency of the complaint.

Berger v. National Collegiate Athletic Association, 843 F.3d 285, 289–90 (7th Cir. 2016). When

considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must

construe the complaint in the light most favorable to the non-moving party, accept well-pleaded

facts as true, and draw all inferences in the non-moving party’s favor. Bell v. City of Chicago, 835

F.3d 736, 1146 (7th Cir. 2016). The complaint must contain a “short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A party need not plead

“detailed factual allegations,” but “labels and conclusions” or a “formulaic recitation of the

elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555

(2007). A complaint must contain sufficient factual matter that when “accepted as true . . . ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Twombly, 550 U.S. 570). In assessing the sufficiency of the complaint, the "reviewing court [must]

draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. When there are well-

pleaded factual allegations, the Court assumes their veracity and then determines whether they

plausibly give rise to an entitlement to relief. Id.

Rule 12(b)(5) provides that a defendant may seek dismissal for “insufficient service of

process.” Fed.R.Civ.P. 12(b)(5). When a defendant challenges the sufficiency of service, the

plaintiff bears the burden of demonstrating that proper service occurred. See Cardenas v. City of

Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011); Homer v. Jones–Bey, 415 F.3d 748, 754 (7th Cir.

2005). The Court may consider affidavits, other documentary evidence, depositions, and oral

testimony when considering whether summons was properly served. Dumas v. Decker, 10 C

7684, 2012 WL 1755674, *2 (N.D. Ill. May 16, 2012) (citing Falconer v. Gibsons Rest. Grp., LLC,

2011 WL 43023, at *1 (N.D. Ill. Jan.6, 2011 WL 43023); 5B Wright & Miller, Federal Practice

and Procedure § 1353, at 344–45 (3d ed. 2004). Neither party requested an evidentiary hearing,

so the motion will be resolved based on the parties’ briefs and attached evidentiary materials.

DISCUSSION

I. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

Plaintiff has filed four complaints – his original complaint and three amended complaints.

The Court granted his first amendment and the Complaint at issue was filed on August 24, 2020.

In spite of warning that Court would not accept other amendments without leave of Court, Plaintiff

filed two more amended complaints. Defendants argue that the only claims that may trigger the

Court’s Federal Question jurisdiction are the alleged violations of the federal antitrust laws,

violations of HCQIA and the citation to the Civil Rights Act of 1981, but that Plaintiff has failed

to state a claim under each statute. Defendants assert that since Plaintiff has not brought a federal

claim, the remaining state law claims should be dismissed. The Court views Plaintiff’s pro se

pleadings liberally. See Taylor v. JPMorgan Chase Bank, N.A., 958 F.3d 556, 562 (7th Cir. 2020);

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (a “document filed pro se is to be liberally construed,

and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than

formal pleadings drafted by lawyers.”) The Court has had experience with Kahn in a previous

matter where he was sanctioned for his litigation conduct. See Khan et al. v. Hemosphere Inc., et

al., No. 18-5368. Even viewing Plaintiff’s claims liberally, his antitrust, HCQIA, and Civil Rights

claims must be dismissed. The Court declines to exercise supplemental jurisdiction over Plaintiff’s

remaining state law claims.

A. Antitrust Claims

Plaintiff brings claims under Section 1 and Section 2 of the Sherman Antitrust Act for the

loss of his clinical privileges at the Hospital.1 There are three elements to a § 1 claim: “‘(1) a

contract, combination, or conspiracy; (2) a resultant unreasonable restraint of trade in the relevant

market; and (3) an accompanying injury.’” Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d

328, 335 (7th Cir. 2012) (quoting Denny's Marina, Inc. v. Renfro Prods., Inc., 8 F.3d 1217, 1220

(7th Cir. 1993)). To satisfy the injury requirement, Plaintiff must allege that his “claimed injuries

1 Plaintiff also brings a claim under the Federal Trade Commission Act of 1914, which created the FTC. Plaintiff

does not explain under which provision of the Act he seeks to bring his claim. The Court assumes Plaintiff intends

to bring antitrust claims generally, for which the Sherman Act provides the remedy he seeks.

are ‘of the type the antitrust laws were intended to prevent’ and ‘reflect the anticompetitive effect

of either the violation or of anticompetitive acts made possible by the violation.’” Tri-Gen Inc. v.

Int'l Union of Operating Eng'rs, Local 150, 433 F.3d 1024, 1031 (7th Cir. 2006) (quoting

Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)).

Plaintiff alleges that the loss of his clinical privileges are cognizable injuries under the

Sherman Antitrust act, yet this conclusory assertion is insufficient to state an antitrust injury. Of

the many deficiencies in Plaintiff’s Complaint, the most salient is that Plaintiff has only pled that

his injury is the loss of his clinical privileges and does not plead any effect on any market. The

Seventh Circuit has stated explicitly that “the staffing decision at a single hospital [is] not a

violation of Section 1 of the Sherman Act.” Kochert v. Greater Lafayette Health Services, 463

F.3d 710, 718 (7th Cir. 2006) (citing BCB Anesthesia Care Ltd. v. Passavant Memorial Area

Hospital, 36 F.3d 664, 668 (7th Cir. 1994)). Additionally, Plaintiff has not pled the relevant

market nor facts to establish the market control of the Hospital, both of which are required under

Sections 1 and 2 of the Sherman Act. See Right Field Rooftops, LLC v. Chi. Baseball Holdings,

LLC, 87 F. Supp. 3d 874, 886 (N.D. Ill. 2015) (citing Republic Tobacco Co. v. N. Atl. Trading Co.,

381 F.3d 717, 738 (7th Cir. 2004)). The failure to allege the existence of a relevant commercial

market is fatal to a Sherman Act claim, regardless of whether the Court applies a per se analysis,

quick-look review, or rule-of-reason analysis. Reapers Hockey Ass’n, Inc. v. Amateur Hockey

Ass’n Ill., Inc., 412 F. Supp. 3d 941, 952 (N.D. Ill. 2019) (citing Agnew v. Nat’l Collegiate Athletic

Ass’n, 683 F.3d 328, 337 (7th Cir. 2012) (“It is the existence of a commercial market that

implicates the Sherman Act in the first instance.”)). Because Plaintiff does not plead a cognizable

antitrust injury and has failed to plead a commercial market, Plaintiff cannot make out an antitrust

claim.

B. Health Care Quality Improvement Act Claims

Plaintiff pleads an injury under the Health Care Quality Improvement Act of 1986

(“HCQIA”), 42 U.S.C. § 1110. It is well-settled that the HCQIA does not provide a private cause

of action to aggrieved physicians. See e.g. Rosenberg v. Advocate Health & Hospitals Corp., No.

11 C 2493, 2011 WL 1548391, *3 (N.D. Ill. Apr. 22, 2011). In fact, “it appears that every court

to address the question of whether the HCQIA provides a private cause of action has come to the

same conclusion: it does not.” Id. (citing Westmoreland v. Pleasant Valley Hosp., Inc., No. 3:08–

1444, 2009 WL 1659835, at *3 (S.D. W.Va. Jun.12, 2009) and collecting cases). Because the

HCQIA does not provide a private cause of action such that Plaintiff may avail himself of the

statute, the Court need not linger on this claim. Plaintiff’s HCQIA claim is dismissed with

prejudice. See Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015) (“District courts ...

have broad discretion to deny leave to amend ... where the amendment would be futile.”).

C. Civil Rights claims

Plaintiff brings a claim under the “Civil Rights Act of 1991,” which does not exist. The

Court will construe this as intending to refer to 42 U.S.C. § 1981. In order to bring a Title VII

claim in federal court, a plaintiff must present the claim in an EEOC charge and have obtained a

right-to-sue letter. Conner v. Illinois Dept. of Natural Resources, 413 F.3d 675, 680 (7th Cir.

2005) (stating that “[a] plaintiff must file a charge with the EEOC detailing the alleged

discriminatory conduct within the time allowed by statute, and the EEOC must issue a right-to-sue

letter”); Ballard v. Sercon Corp., 846 F.2d 463, 468 (7th Cir. 1988) (“Title VII’s requirement that

the plaintiff exhaust the administrative remedies provided by the statute is jurisdictional; that is, a

court is obligated to enforce the requirement even if the defendant has overlooked it.”) In Illinois,

a plaintiff has a 300-day window to file an EEOC charge concerning an alleged unlawful

employment practice for a Title VII claim based on those practices to be actionable. Bass v. Joliet

Pub. Sch. Dist. No. 86, 746 F.3d 835, 839 (7th Cir. 2014) (“If a plaintiff does not file a charge

concerning a discrete act within the 300-day window, [his] claim is time-barred and [he] may not

recover.”); Roney v. Ill. Dep't of Transp., 474 F.3d 455, 460 (7th Cir. 2007) (“A charge of

employment discrimination must be filed with EEOC within 300 days of the alleged unlawful

employment practice.”). Here, Plaintiff does not allege that he filed a discrimination charge with

the EEOC within the 300-day window nor does he allege anything that could lead the Court to

believe that he has exhausted his administrative remedies. Because Plaintiff does not allege he has

filed a charge with the EEOC or exhausted his administrative remedies, Plaintiff’s Title VII claim

is dismissed.

II. Rule 12(b)(5) Motion to Dismiss for Insufficient Service of Process

The docket indicates that Thomas Mulvar (Dkt. 13-1), David Hines (Dkt. 13-1), Ernesto

Cabrera (Dkt. 14), Nora Byrne (Dkt. 16), Raghu Ramadurai (Dkt. 17), Ada Arias (Dkt. 17-1) and

Michael Maghrabi (Dkt. 17-2) were all served by certified mail. The Defendants move to dismiss

pursuant to Rule 12(b)(5). Rule 4(e) provides that an individual defendant may be served by

following state law, in this case Illinois law, or by delivering a copy of the summons and the

complaint to the individual personally, leaving a copy of each at the individual's dwelling or usual

place of abode with someone of suitable age and discretion who resides there, or by delivering a

copy of each to an agent authorized by appointment or by law to receive service of process. Fed.

R. Civ. P. 4(e).

Illinois law provides that an individual defendant may be served by leaving a copy of the

summons with the defendant personally, or:

(2) by leaving a copy at the defendant's usual place of abode, with some person of the

family or a person residing there, of the age of 13 years or upwards, and informing that

person of the contents of the summons, provided the officer or other person making

service shall also send a copy of the summons in a sealed envelope with postage fully

prepaid, addressed to the defendant at his or her usual place of abode.

735 ILCS 5/2-203(a). In Illinois, service on individual defendants through the United States Postal

Service by certified mail is not permitted under the statute. Thompson v. Brown, No. 20 C 133,

2020 WL 6149580, *1 (N.D. Ill. Oct. 20, 2020) (finding service improper where individual

defendants served through certified mail); Lee v. Howse, No. 19-cv-30, 2020 WL 2468133, *4

(N.D. Ill. May 13, 2020) (citing Walton v. Lyons, 962 F. Supp. 126, 128 (C.D. Ill. 1997) (“The

Federal Rules of Civil Procedure do not permit service of the summons and complaint by first

class, or even certified, mail.”)). Plaintiff does not provide any good cause that would allow the

Court to extend the time for service. The Court “must dismiss” the complaint if plaintiff fails to

properly serve the Defendants within 90 days after filing the Complaint. Fed. R. Civ. P. 4(m).

Such a dismissal may be with prejudice “if the plaintiff’s delay in obtaining service is so long that

it signifies failure to prosecute.” Williams v. Illinois, 737 F.3d 473, 476 (7th Cir. 2013).

This is not Plaintiff’s first case before the Court. In 2018, Kahn sued over 300 defendants

for patent infringement and sent them all waivers of service. Repeatedly, at numerous status

hearings, the Court warned Kahn that this type of service was an alternative form of service and

that defendants were not required to waive service. In spite of these repeated warnings, Kahn

refused to alter his service. With very limited exceptions, Kahn failed to serve the defendants in

that matter and insisted on serving defendants by mailing the summons and complaint to them. He

further refused to obtain an attorney and refused to listen to the Court’s recitation of binding law

– all offered to help him with his case. Rather than accept any of these warnings, Kahn plunged

ahead with his suit, requiring dozens of lawyers to appear and challenge venue and service. In the

end, the case was dismissed and the Court sanctioned Kahn for his abuse of the judicial process

and he was required to pay for the attorney fees of opposing counsel. In this Court’s previous

memorandum opinion and order the Court stated:

Plaintiffs also failed to comply with the timeliness requirements of Rule

4(m). Still, more than 250 days after Plaintiffs filed their Complaint,

nearly all of the Defendants have still not been properly served. The

Plaintiffs provide no justification for this extreme delay besides their tired

refrain that service was completed by U.S. Mail. By maintaining this

contention, in the face of directly contrary instruction from the Court,

Plaintiffs have failed to comply with the necessary procedural rules for

litigating their case. Therefore, due to insufficient and untimely service,

Plaintiffs’ Complaint is dismissed for want of prosecution.

Khan et al. v. Hemosphere Inc., et al., No. 18-5368, Dkt. 135 at 6. Under these circumstances, the

Court will not give Kahn another opportunity than the two he has already had. He cannot claim

that he was unaware of how to serve his Complaint nor can he claim he is unaware of the serious

consequences of failure to serve properly. Defendants Mulbar, Cabrera, Ramadurai, Byrne and

Maghrabi are dismissed for Plaintiff’s failure to prosecute.

III. Remaining State Law Claims

This leaves only state law claims for Violation of Hospital Bylaws, Fraudulent Actions and

Wrongful Termination of Plaintiff’s Hospital Privileges, Breach of Contract, Defamation, and

Mental Distress. Having dismissed the only federal claims in this action, the Court declines to

exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c)(3);

see also Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 631 (7th Cir. 2016) (explaining the

Court may decline to exercise jurisdiction over state law claims when federal claims are deficient).

CONCLUSION

For the foregoing reasons, Plaintiff's discrimination claim is dismissed without prejudice;

his antitrust claim is dismissed with prejudice; and because the HCQIA does not provide for a

private right of action, this claim is dismissed with prejudice. Plaintiff’s claims as to certain

Defendants are dismissed for failure to properly effect service and for failure to prosecute. The

case 1s therefore dismissed. If Kahn exhausts his administrative remedies with the EEOC, he may

refile his discrimination claim.

i i a

A ppawiin\ Henthatl

Ahi M. Kbrfdall ~ “\

Jited States District Judge

Date: November 17, 2020

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