PARTIN v. BAPTIST HEALTHCARE SYSTEM, INC. d/b/a BAPTIST HEALTH FLOYD

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA

NEW ALBANY DIVISION

WILLIAM R. PARTIN, M.D., )

)

Plaintiff, )

)

v. ) No. 4:20-cv-00185-SEB-DML

)

BAPTIST HEALTHCARE SYSTEM, INC. d/b/a )

BAPTIST HEALTH FLOYD, )

DANIEL J. EICHENBERGER, M.D., )

)

Defendants. )

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

After a history of staff complaints culminating in a disagreement between an

emergency room doctor and his staff about appropriate treatment procedures for a

suicidal patient who was refusing the specific forms of treatment, i.e., an IV line and a

rectal temperature test, the hospital administrators concluded the physician should no

longer be permitted to see patients in their emergency room. They requested that the

physician's direct employer, to wit, a group of emergency physicians who had contracted

with the hospital to provide emergency room physician support, remove the physician

from further engagement in their facility. The doctor ultimately resigned, and then sued

the hospital and the hospital's president for whistleblower retaliation under the

Emergency Medical Treatment and Labor Act ("EMTALA"), as well as for a host of state

law contract and tort claims. Defendants moved for summary judgment on all claims,

which we now address.

I. SUMMARY JUDGMENT STANDARD

Parties in a civil dispute may move for summary judgment, which is a way of

resolving a case short of a trial. See Fed. R. Civ. P. 56(a). However, "[s]ummary

judgment is appropriate only if 'the movant shows that there is no genuine issue as to any

material fact and the movant is entitled to judgment as a matter of law.'" Tolan v. Cotton,

572 U.S. 650, 656−57 (2014) (quoting Fed. R. Civ. P. 56(a)). "By its very terms, this

standard provides that the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment;

the requirement is that there be no genuine issue of material fact." Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247−48 (1986). "Material facts" are those that "might affect

the outcome of the suit," and a "genuine dispute" exists when "a reasonable jury could

return a verdict for the nonmoving party." Id. at 248.

When ruling on a motion for summary judgment, the court views the record and

draws all reasonable inferences from it in the light most favorable to the nonmoving

party. Khungar v. Access Cmty. Health Network, 985 F.3d 565, 572−73 (7th Cir. 2021).

However, the non-moving party "may not rest on its pleadings, but must affirmatively

demonstrate, by specific factual allegations, that there is a genuine issue of material fact

that requires trial." Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (2007). We

are required to consider only the submissions relied upon by the parties, Fed. R. Civ. P.

56(c)(3), and we are not required to "scour every inch of the record" for evidence that is

potentially relevant, Grant v. Tr. of Ind. Univ., 870 F.3d 562, 573-74 (7th Cir. 2017).

II. MOTIONS TO STRIKE AND LIMIT EXPERT TESTIMONY

After the summary judgment motion before us was fully briefed, both parties moved

to exclude and/or limit expert testimony. Specifically, Defendants moved to exclude the

following opinions of three of Plaintiff Dr. William Partin's expert witnesses: (1) Dr.

Robert McNamara's opinion testimony regarding the interpretation of the contract

between FEMA and the Hospital, (2) Bill Kottman's opinion testimony regarding the

"common practice" of hospitals in deciding to utilize the contract right of removal of

physicians, and (3) William T. Baldwin's opinion testimony related to the trends as to the

salaries and hours worked for emergency medicine physicians. See Docket No. 53, at 1.

Because we do not rely on the opinions of these experts in reaching our decision on

summary judgment, we do not address the parties' substantive arguments regarding the

admissibility of this evidence. However, we note that "expert testimony as to legal

conclusions that will determine the outcome of the case is inadmissible," Good Shepard

Manor Found., Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) (citing United

States v. Sinclair, 74 F.3d 753, 757 n. 1 (7th Cir. 1996)), and "[a]rgument about the

meaning of . . . contracts . . . belongs in briefs, not in 'experts' reports." RLJCS Enters.,

Inc. v. Pro. Benefit Tr. Multiple Emp. Welfare Benefit Plan & Tr., 487 F.3d 494, 498 (7th

Cir. 2007). "Legal arguments are costly enough without being the subjects of 'experts'

depositions and extensive debates in discovery, in addition to presentations made directly

to the judge." Id.

Dr. Partin seeks to exclude the following testimony from Defendants' witnesses: (1)

any legal conclusions from Melanie Heniff or others regarding whether an EMTALA

violation occurred, (2) opinions of Melanie Heniff or others regarding whether Dr. Partin

complied with professional standards of care, (3) opinions of John Charles Hyde

regarding the legal interpretation of the FEMA contract, and (4) opinions regarding the

interpretation and meaning of the Indiana Emergency Detention Order statutes. See

Docket No. 55. We again do not address the parties' substantive arguments regarding the

admissibility of this evidence for the same reasons outlined above.

However, Dr. Partin also seeks to exclude the opinions of nursing staff regarding

treatment necessary for medical screening and stabilization of the patient under the

Hospital's EMTALA policy. See Docket No. 55. Dr. Partin argues that "[n]one of this

testimony is admissible as expert opinion, because the witnesses are not qualified to offer

such opinions." Docket No. 56, at 3. Because physicians, not nurses, make the ultimate

decisions under the Hospital's EMTALA policy, Dr. Partin contends nursing staff are

"not qualified to offer any opinions regarding whether [the patient] needed certain

treatment in order to satisfy Baptist's EMTALA policy." He points out that expert opinion

under Federal Rule of Evidence 702 may be offered only by a "witness who is qualified

as an expert by knowledge, skill, experience, training, or education," and the nurses

disclosed as expert witnesses here "are not." Id. at 4. Contrary to Dr. Partin's contentions,

we look to the Federal Rules of Evidence and federal case law in determining whether the

nurses' opinions are admissible, not the Hospital's EMTALA policy.

Defendants disclosed Nurses Laura Proctor, Megan Salisbury, and Derek Brown as

expert witnesses pursuant to Rule 26(a)(2)(C), which typically encompasses the expert

testimony of non-retained treating physicians, whose testimony is limited "to opinions

that are within the scope of his own observation," Martin v. Stoops Buick, Inc., 2016 WL

4088132, at *4 (S.D. Ind. July 28, 2016), and "to the determinations made in the course

of providing treatment." Hambach v. Builders Transp. Co., 2016 WL 5847045, at *2

(S.D. Ill. Oct. 6, 2016). We do not agree with Dr. Partin that these nurses are not qualified

to testify as experts under Rule 26(a)(2)(c). The committee notes to Rule 26(a)(2)(c)

"explain that common examples of experts required to submit summary disclosures

include physicians or other health care professionals." Washington v. Tovo, 2018 WL

2126941, at *4 (N.D. Ind. May 9, 2018) (citing Fed. R. Civ. P. 26, cmt. 2010

Amendments, subdivision (a)(2)(c)). And, in Musser v. Gentiva Health Services, the

Seventh Circuit "agree[d] with the district court that even treating physicians and treating

nurses must be designated as experts if they are to provide expert testimony." 356 F.3d

751, 758 (7th Cir. 2004) (emphasis added). Moreover, none of these nurses were called to

testify as to anything regarding EMTALA; rather, their testimony relates only to their

treatment of the specific patient whose care was at issue, her lack of consent, and their

disagreement with Dr. Partin's handling of the situation. Thus, in ruling on the instant

summary judgment motion, we shall conclude the nurses' deposition testimony so long as

their testimony is otherwise admissible under the Federal Rules of Evidence.

III. FACTUAL BACKGROUND

In June of 2019, Defendant Baptist Healthcare System, Inc. d/b/a Baptist Health

Floyd (hereinafter, "the Hospital") entered into a contract with Floyd Emergency

Medicine Associates ("FEMA") that made FEMA the exclusive provider of emergency

medicine providers for the Hospital's Emergency Department. Defendant Dr. Daniel J.

Eichenberger, M.D., was the Hospital's President during the time period applicable to this

case. FEMA had served as the exclusive provider for at least thirty-five years pursuant to

a series of sequential contracts. The Hospital and FEMA were the only parties to the 2019

contract. See Docket 40-1, at 1.1 The 2019 contract gave FEMA multiple rights and

imposed various obligations regarding staffing decisions for the Hospital's Emergency

Department. The contract also set out multiple ways either party could terminate the

contract, including a simple ninety-day written notice. Id. at 2. FEMA agreed to

"immediately remove from providing services under [the contract] any physician" who,

among other enumerated reasons, "fails to comply with any of the terms and conditions

of [the contract], the written policies and procedures of [the] Hospital, or the bylaws of

[the] Hospital medical staff as may be in effect from time to time, after being given

notice of his failure to comply." Id. at 2−3.

From 2001 until his resignation at the end of 2019, Dr. Partin was one of the

emergency room physicians FEMA had engaged to staff the Hospital's Emergency

Department. He was an employee of FEMA as well as a director and shareholder in

FEMA, and subject to a separate employment contract with FEMA that was terminable

upon sixty days' notice by Dr. Partin to FEMA of his intended resignation. As a member

of the Hospital's medical staff, Dr. Partin's rights and duties were governed by the

Medical Staff Bylaws and Rules and Regulations, which "[u]nder no circumstances" were

1 Citation pin cites refer to the parties' ECF Filing PDF pagination numbers, not the page

numbers associated with the internal documents.

to "be construed to create a contractual relationship of any kind between or among the

Board of Trustees or Hospital and Medical Staff, and any of its members." Docket No.

40-6, at 10. The Bylaws made all medical staff members subject to the "hospital and

medical staff policies and departmental bylaws, rules and regulations, and policies,"

which required the medical staff to "demonstrate the ability to work cooperatively and

professionally with the Hospital, its professional staff and Medical Staff, and refrain from

disruptive behavior, which has or could interfere with patient care, or the smooth

operation of the Hospital and its Medical Staff." Id. at 12, 15. "Any disruptive patterns or

trends will be subject to the hospital's Code of Conduct policy," which establishes a zero-

tolerance policy as to disruptive conduct. Id.; Docket No. 40-8, at 2. One of the examples

of disruptive conduct specified in the Code of Conduct is "an unwillingness to work

cooperatively and harmoniously with other members of the medical and hospital staff."

Docket No. 40-8, at 3. The Code of Conduct also requires that all hospital and medical

staff treat "all individuals within its facilities . . . courteously, respectfully, and with

dignity," and prohibited staff from engaging in any "behavior which interferes with

quality care and the safety of all concerned." Id. at 1, 4.

Under the Bylaws, medical staff members "have delineated clinical privileges that

define the scope of patient care services they may provide." Id. at 11. Dr. Partin had been

given clinical privileges to provide emergency care at the Hospital. The Hospital's Rules

and Regulations, adopted to "implement more specifically the general principles found

within the Bylaws," provided that "[p]atients who are suspected to be suicidal,

emotionally ill, become emotionally ill while in the hospital, or who suffer the results of

alcoholism or substance abuse, will be medically stabilized, and then transferred, if

necessary, to an appropriate facility as determined by the attending physician." Docket

43-6, at 1. The Rules and Regulations incorporate the Hospital's obligations under

EMTALA: (1) every patient coming into the Emergency Department must receive a

medical screening by the medical staff, and (2) if such screening determines the existence

of an emergency medical condition, the Emergency Department must "stabilize the

emergency medical condition of the individual within the capabilities of the staff and

facilities available at the hospital, prior to discharge or transfer." Id. at 13−14. The

Hospital's EMTALA Policy further provided that "[i]f the medical screening examination

does reveal an emergency condition and the individual is admitted in good faith as an

inpatient in order to stabilize the emergency medical condition, the hospital has no further

obligation toward the individual under EMTALA but shall proceed to provide the

individual with care and treatment governed by the Medicare Conditions of

Participation." Docket 43-7, at 13−14.

Dr. Partin's tenure as a member of the medical staff at the Hospital began in 2001. By

early in 2002, a long list of complaints began to be filed against him by staff and patients,

including a nursing complaint that he "demand[s] rectal temperatures on [the] majority of

his patients." Docket No. 40-14, at 7. On October 25, 2013, the Medical Executive

Committee convened, based on a referral by Dr. Eichenberger who was then the Chief

Medical Officer, to "evaluate the multitude of complaints and disruptive behaviors by Dr.

Randy Partin as well as some clinical care decisions."2 Docket No. 40-15, at 1. During

that meeting, several concerns were discussed, including: concern over "nipple twisting";

disruptive and uncooperative behavior; retaliatory behavior; inappropriate comments to

patients; and inadequate documentation. Id. Thereafter, the Medical Executive

Committee scheduled a meeting with Dr. Partin to discuss their concerns and provide him

with an opportunity to respond. Following the meeting with Dr. Partin, the Committee

documented its findings:

Dr. Partin remained reluctant to admit and acknowledge the personal

responsibility of the issues brought up. Dr. Partin continued to make excuses

and rationalize the events stating he was always interested in patient care. He

continually made reference to the hospital not addressing appropriately the

multitude of complaints he and his group has made. He challenged the

appropriateness of "nipple twisting" as well as some of his other clinical

decisions (i.e. Labs for psych, opening the chest, comments related to pelvic

exams, etc.)

Docket No. 40-13, at 2. Following the meeting, Dr. Partin was referred by the Committee

to the Indiana State Medical Association Physician Assistance program based on the

allegations of disruptive practitioner evaluation and assistance and was "placed on a six-

month review going forward to document any further disruptive behaviors." Id. at 3.

In January of 2015, the Medical Executive Committee sent Dr. Partin a letter

informing him that the Credentials Committee and the Medical Executive Committee had

"[become] aware [of] and reviewed two other recent complaints from the Emergency

Department." Docket No. 40-14, at 1. The Committee members noted "that there are

numerous, documented issues regarding [Dr. Partin's] disruptive behavior [] in [his]

2 Plaintiff was known as and used the nickname Randy in various settings.

credential file," so they "formally request[ed] that [Dr. Partin] make arrangements to

complete [an] on-line disruptive behavior course." Id. Dr. Partin responded to the letter in

writing, requesting further information about the complaints and seeking an opportunity

to respond. Id. at 2−3. Dr. Partin completed the required disruptive behavior course; no

further information about his conduct thereafter has been provided to the court. In fact, no

record of documented complaints from 2015 through 2019, when Dr. Partin resigned

from FEMA, has been submitted to the court.

Existing procedures provide that medical staff at the Hospital are to be reviewed for

reappointment every two years, and in both of the reappointment review processes

applicable to Dr. Partin—in June of 2016 and June of 2018—the Credentials Committee

and the Medical Executive Committee recommended that he be reappointed. In both

reappointment letters, performance and evaluative scorecards were included, and Dr.

Partin received satisfactory marks on all factors, including in "[c]ooperation with hospital

associates," "[r]elationship with peers," and "[g]eneral attitude toward practice, patients,

hospital and public." Docket No. 43-16; Docket No. 43-17. However, as Dr.

Eichenberger testified, "there were always issues with Dr. Partin," and, while they

"weren't always written up, they weren't always put in his credential files, . . . there were

always ongoing behavioral type of issues that were verbally reported through different

mechanisms." Docket No. 12, at 8. The Emergency Department Director, Linda Minton,

testified that problems with Dr. Partin continued after 2015 and were always "the same."

Docket No. 40-17, at 2. Specifically, she testified that:

[S]ome of the specific treatments [Dr. Partin ordered] that were concerning

to the staff were things like nipple twisting when you were trying to get a

response from an overdosed patient or a nonresponsive patient. I never knew

him to do that on a male. But the nipple twist was what he used for females

to try and get a response . . . Things like bimanual exams of women, I didn't

know another physician in the emergency department to do a bimanual,

which means you put a finger in the vagina and you put a finger in the rectum

at the same time. Most physicians that I am aware of do a vaginal exam and

then they do a rectal exam. But Randy preferred to do the bimanual. The

rectal temps were, in his estimation, the more accurate way of taking a

temperature. But in the opinion of the caregivers was done when it wasn't

really indicated when we had someone that didn't require a rectal temp. So

those were the kind of things that were of concern to the caregivers. But any

challenges to those treatments would pit you against him in the fact that

you're a nurse, he's a doctor and you have no right to question his medical

judgment.

Id. at 3. Director Minton further testified that certain types of patients caused more

"aggravation or potential for problems" for Dr. Partin:

Females in particular, if you were overweight, if you were unkempt, if you

were psych, if you complained or you screamed or hollered during an exam,

if you questioned what he wanted to do as far as your plan of care, it was

typically more female than it was male that seemed to -- to stir his ire I guess.

He had far less tolerance of them than he did male patients.

Id. at 4. In addition to suicidal patients, Director Minton testified that certain other patient

behaviors would create issues for Dr. Partin: "If you smoked; if you drank alcohol, if you

were intoxicated; if you used drugs; all of those what we consider bad behavior for

patients and their health, would -- yeah, you either got a lecture or you were talked to

differently. Those things bothered him a great deal." Id.

Dr. Kevin Wurst, the Medical Director of FEMA, testified that Dr. Partin was the only

FEMA partner who was: (1) subject to a Medical Executive Committee review, (2)

referred to the Indiana State Medical Association Physician Assistance program for

disruptive practitioner evaluation and assistance, and (3) directed by the Medical

Executive Committee to take a disruptive physician behavior course. Docket No. 40-2, at

2−4. Dr. Wurst also testified regarding the receipt of staff complaints concerning Dr.

Partin's behavior in the emergency room throughout his tenure, and that there were still

unresolved concerns when Dr. Partin finally left his position at the Hospital. Id. at 4−5.

An incident involving Dr. Partin's care of a patient on September 3, 2019, led to his

departure from his position with FEMA. At 3:51 p.m. that day, a patient was brought into

the Emergency Room via ambulance after she had twice attempted to commit suicide that

day. The first suicide attempt was from a methamphetamine overdose, following which

she had been transported to another hospital, where she self-discharged against medical

advice. She was later found by police walking in the middle of a highway, attempting to

commit suicide by traffic accident. Dr. Partin was assigned as the patient's attending

physician upon her arrival in the Emergency Room, and he "put her immediately 'on

medical hold' . . . which refers to immediate detention under [Indiana Code § 12-26-4-4]

when 'a physician determines emergency treatment is necessary to preserve the health and

safety of the individual.'" Docket No. 43, at 10 (citing Docket No. 43-29). The patient

was also subjected to an Emergency Detention Order by a judge who had approved Dr.

Partin's request for such.

The patient was initially combative, attempting to leave the Emergency Room; after

being restrained by security, she refused to consent to Dr. Partin's treatment, cursed at

him, and resisted his help. Dr. Partin placed several orders to the nurses for treatment of

the patient, including the insertion of an IV line for fluids and the taking of her rectal

temperature. Staff succeeded in talking to her and securing her consent to provide a urine

sample and a blood draw, but she refused the IV and rectal temperature test. The patient

also agreed to cooperate by drinking water but continued to refuse the rectal temperature

test, regarding it as unnecessarily invasive. One hospital staff member testified that taking

rectal temperature is a procedure objected to by most patients, and Dr. Partin was the

only Emergency Room doctor to regularly order it. Four Emergency Room staff members

documented that eventually the previously suicidal patient became cooperative, alert, and

oriented, with normal temperatures, and her heart rate and blood pressure trending down.

The staff disagreed with Dr. Partin as to whether the patient has a right to refuse the

ordered care. At 4:40 p.m., Nurse Megan Wolfe noted in the patient's chart that the nurses

were awaiting a call back from the Emergency Room Manager, Scott White, whom the

nurse had requested review the case and determine if they "are able to forcibly give [the

patient an] IV and fluids since she was cooperative with giving blood and urine." Docket

No. 40-19, at 38. At 5:10, Nurse Wolfe entered another note in the patient record stating

that Scott White had contacted risk management and Dr. Eichenberger to review the

matter and was awaiting calls back.

Around this same time, Dr. Partin contacted Dr. Eichenberger to inform him that the

patient was acutely psychotic and would be in serious danger if the staff did not perform

the requested medical care. According to Dr. Partin, she faced the potential of dying

because the nursing staff was refusing to carry out his orders. Dr. Partin did not inform

Dr. Eichenberger of the reasons for the staff's refusals. Dr. Eichenberger told Dr. Partin

that the treatment decisions were his responsibility because he was the physician on duty

in the Emergency Department, and that if he believed strongly that she was psychotic and

in need of treatment, he should proceed. At 5:30 p.m., Nurse Wolfe noted that, per Dr.

Eichenberger, the patient cannot refuse the IV and the IV fluids, and the nurses must start

the IV even though the patient was refusing them. At 5:40 p.m., Nurse Wolfe noted that

she tried to coax the patient into consenting to the IV so that the nurses did not have to

proceed against her wishes and restrain her, but the patient continued to refuse. At 5:41

p.m., Nurse Wolfe, noting the patient's continued refusal, Dr. Partin and Mr. White

nonetheless had instructed the nurses to "treat" the patient. Id. at 39. Dr. Partin attempted

to persuade the patient to cooperate, but she persisted in her refusal.

At 6:05 p.m., Nurse Laura Procter noted in the medical record Mr. White's

communication to the nurses that the Hospital's legal department had confirmed that the

patient can be ordered to receive this medical treatment against her will. Nurse Procter

again assessed the patient, noting she continued to refuse IV access because she was

drinking fluids without difficulty, and was "alert, oriented and cooperative at [the] time of

assessment." Id. at 40. Nurse Derek Brown noted in patient's chart that the patient was

able to state her full name, the time, month, date, and current president; there was "no

evidence of psychosis at this time," and the patient was calm and cooperative. Id. At 6:10

p.m., Nurse Wolfe recorded that the patient was physically restrained by security

personnel and administered ketamine per Dr. Partin's and Dr. Eichenberger's orders. The

IV and rectal temperature test were then administered, causing the patient to be

animatedly indignant, repeatedly comparing the procedures to rape. At 6:20 p.m., a

psychological evaluator from Clark Behavioral Health arrived to assess the patient's

mental state, but when the Hospital staff informed the evaluator that the patient was

sedated, she was unable to be evaluated at the time. At 9:00 p.m., Dr. Partin noted in the

patient's medical record his "concern[] about [a] possible EMTALA violation . . . for not

providing stabilizing care for an emergency condition and [that he had] notified hospital

administration/Scott as well as Twana" from risk management.3 Docket No. 40-19, at 35.

3 The arrival of the Clark Behavioral Health evaluator was the only evidence in the record

relating in any fashion to the possible transfer of the patient, and no steps were undertaken

because the patient had been sedated per Dr. Partin's order. In support of his EMTALA claim,

Dr. Partin cites that risk management employees Angie Mead and Tawana Shaffer "claimed the

patient could leave against medical advice despite being suicidal." Docket No. 43, at 12.

However, the statement of Angie Mead is inadmissible hearsay. In addition, his own note in the

patient's medical records that Tawana recommended trying to contact family or emergency

contacts to obtain patient's consent is inadmissible hearsay as well. Docket No. 40-19, at 35; see

Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009) ("A party may not rely upon inadmissible

hearsay to oppose a motion for summary judgment.").

Dr. Partin has submitted no admissible evidence to support his allegation that these risk

management employees had claimed the patient could leave the hospital. Dr. Partin cites his own

deposition testimony to argue that Nurse Laura Procter asked Dr. Partin to evaluate the patient

when she was initially brought in to see if she could leave; in his experience, he argues, "when a

staff member asks him this question, it means the staff wants to let the patient leave." Docket No.

43, at 9. Although self-serving deposition testimony may satisfy a party's evidentiary burden on

summary judgment, Whitlock v. Brown, 596 F.3d 406, 411 (7th Cir. 2010), it must be sufficiently

based on reasonable inferences which are "grounded in observation or other first-hand personal

experience [and] [t]hey must not be flights of fancy, speculations, hunches, intuitions, or rumors

about matters remote from that experience," Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655,

659 (7th Cir. 1991). Dr. Partin's deposition testimony is insufficient proof of anything other than

that Nurse Proctor asked him to evaluate the patient who wanted to leave.

Dr. Partin also claims that another staff member told the patient she could leave when she was

first brought to the Emergency Room. Relying solely on the Emergency Medical Services report,

about which the court has additional hearsay concerns, Dr. Partin maintains that the first staff

member of the Hospital the patient had encountered told the patient she could leave. The written

report, however, states: "the CNA" informed the patient she could not hold her there if she did

not want to be there, and the emergency responder stopped the patient from leaving because the

patient "was still in [his] care and [he] felt that she was a danger to her self and others." Docket

No. 40-19, at 145. Assuming, without deciding, that this report is admissible based on a hearsay

exception, i.e., what "the CNA" purportedly told the patient, Dr. Partin impermissibly attempts to

However, Dr. Partin testified that at the time he never reported any EMTALA violation

regarding this incident to any regulatory agency or state licensing group. Docket No. 40-

7, at 32−34 The patient was admitted to the hospital around midnight, and the following

day, following a psychiatric evaluation when she was determined to no longer be a

suicide risk, she voluntarily departed the hospital against medical advice.

The morning following the incident, (September 4, 2019), Dr. Eichenberger reviewed

the patient's chart and determined that the information recorded there did not support Dr.

Partin's opinion that the patient was incapable of making her own medical decisions, and

further that it failed to establish that she was medically unstable or in a life-threatening

situation. Dr. Eichenberger concluded that what Dr. Partin had told him on the phone had

not been the entire story. Dr. Eichenberger testified that based on the information

conveyed by Dr. Partin to him in the phone call, Dr. Eichenberger had understood that

Dr. Partin was attempting to stabilize the patient. However, after reviewing the patient's

medical records, Dr. Eichenberger discovered that the patient had already been stabilized

and that the dispute between Dr. Partin and the staff related to the clinical decision of

further treatment not to stabilize her because she was already stable.

introduce it "to prove the truth of the matter asserted." Fed. R Evid. 801(c). In response to Dr.

Eichenberger's testimony explaining the unreliability of this account because the Hospital does

not refer to any staff as CNAs, Dr. Partin has not identified "the CNA" mentioned by the report

beyond his speculation that it was "probably an ER tech such as Chelsea Reyling." Docket No.

43, at 9 n.5. Even if this hearsay was admissible evidence, it falls short of establishing an

EMTALA violation since it relates only to the turning away of a patient before screening for an

emergency condition. At most, it suggests the potential for an EMTALA violation, particularly

since, as Dr. Partin agrees, the patient was stabilized under his care, and ultimately admitted.

Also on September 4th, 2019, Emergency Department Director Grace Marksbury

phoned the Vice President of Nursing to report that there had been a major incident in the

Emergency Department the day before involving Dr. Partin that had upset many of the

nurses. The Hospital thereupon undertook an investigation, collecting and reviewing the

written statements by the involved nurses and staff. Sometime prior September 10, 2019,

Dr. Eichenberger proposed that Director Marksbury, in consultation with FEMA's

medical director, Dr. Wurst, determine whether it was possible at this juncture for the

nurses and Dr. Partin to continue to work together or whether the culture had been

damaged to a point where it was necessary to require Dr. Partin to leave his position as

staff physician in the Emergency Department. Director Marksbury's opinion was that

reconciliation was not possible, specifically stating that:

Based on the information I have heard from previous situations with Dr.

Partin, I do not think I can convince the ED staff to continue supporting him.

I believe that risk, myself, and Dr. Eichenberger will continue to be pulled

into situations due to the lack in confidence the ED staff has for his

judgement [sic]. Based on my conversation with Dr. Wurst, I do not think

there is a viable action plan to mend the situation with FEMA. Dr. Wurst

provided no feedback on how we could get Dr. Partin and the ED staff to

work collaboratively. Finally, the nurses involved in the situation on

9/3/2019 are three of my highest preforming [sic] nurses. I stand by their

conviction to advocate for their patient and that Dr. Partin's documentation

did not reflect the truth.

Docket No. 40-33, at 1. On September 19, 2019, Dr. Eichenberger sent a letter to Dr.

Wurst requesting Dr. Partin's termination. There is no evidence indicating that the letter

was disclosed or communicated to anyone outside of FEMA and the Hospital. The letter

stated as follows:

The Hospital expects its staff and providers to render quality, compassionate

care to its patients while demonstrating a high degree of professionalism and

respectful behavior. As you know, beginning in at least 2010, the Hospital,

through its administration and staff have observed and attempted to address

disruptive behavior by Dr. Partin. Regretfully, this disruptive behavior

persists. Despite repeated opportunities for correction, Dr. Partin continues

to undermine a culture of patient safety and cooperation amongst leadership

and staff within the emergency department, creating tension, hostility and an

inappropriate environment. Dr. Partin continues to behave contrary to the

Hospital's policies, including, by way of most recent examples, refusing to

accept appropriate transfers and treatment and care for and on behalf of

patients who are placed on a 72 hour hold. Consequently, this letter shall

serve as [the] Hospital's formal request pursuant to Sections 1.e. and 22 of

the Agreement for FEMA to immediately remove Dr. Partin from rendering

emergency services at [the] Hospital.

Baptist Health Floyd desires to have a successful partnership with Floyd

Emergency Medicine Associates, P.C. and its providers. More importantly,

Baptist Health Floyd desires and expects its providers to deliver high quality

care in a compassionate, professional and respectful manner and

environment. The behaviors demonstrated by Dr. Partin are inconsistent with

this goal and must be immediately remedied through the removal of Dr.

Partin as a provider at the Hospital.

To the extent that Dr. Partin is not immediately removed from rendering

services at the Hospital, Baptist Health Floyd will have no choice but to issue

FEMA a ninety-day written notice of termination of the Agreement, pursuant

to Section 1.d.

Docket No. 1-2, at 1−2. The relevant portion of Section 1.e of the FEMA Agreement

provides that FEMA agrees to immediately remove any physician from providing

services if the physician "fails to comply with any of the terms and conditions of this

Agreement, the written policies and procedures of the Hospital, or the bylaws of [the]

Hospital medical staff as may be in effect from time to time, after being given notice of

his failure to comply." Docket No. 40-1, at 2−3.

On October 1, 2019, Dr. Partin resigned from FEMA and provided the required sixty-

day advance notice of his intended departure. See Docket No. 40-34. Four months later,

on January 31, 2020, the Hospital wrote to Dr. Partin to advise him that it had accepted

his voluntary resignation from the medical staff membership as well as his clinical

privileges. Dr. Partin did not exercise any clinical privileges at the Hospital after

November 30, 2019. He was hired as a physician by another group of emergency room

physicians as a physician but was not made a partner of that group since they were

allegedly looking for someone younger who was just out of residency. Dr. Partin

thereafter took a position with another hospital.

Dr. Partin brought the instant suit against Defendants for this alleged retaliation

against him in violation of the Emergency Medical Treatment and Active Labor Act

("EMTALA") and to assert various state law causes of action, specifically: (1) Breach of

Contract as to the Bylaws, (2) Breach of Implied Covenant of Good Faith and Fair

Dealing, (3) Breach of Contract as to the FEMA-Hospital Contract, (4) Tortious

Interference with Contractual Relationships, (5) Tortious Interference with Business

Relations, and (6) Defamation. Defendants have moved for summary judgment on all

claims in his complaint, in response to which motion Dr. Partin has filed a responsive

brief. We address below the issues raised in the parties' briefs.

IV. DISCUSSION AND DECISION

A. EMTALA WHISTLEBLOWER

Dr. Partin specifically invokes the whistleblower protections provision of EMTALA,

which protect from retaliation a physician who "refuses to authorize the transfer of an

individual with an emergency medical condition that has not been stabilized," and any

hospital employee who "reports a violation of a requirement of this section" from being

retaliated against. 42 U.S.C. § 1395dd(i). However, Dr. Partin "does not argue that he

reported an EMTALA violation that had actually occurred." Docket No. 43, at 23.

Instead, "[h]e argues he refused to engage in and therefore prevented an EMTALA

violation by the hospital," and was retaliated against for his refusal. Id. In Dr. Partin's

view, the Hospital was going to "violate EMTALA because its staff refused to complete

[the patient's] medical screening and refused to stabilize the patient." Id. Citing Dr.

Eichenberger's letter to FEMA requesting his removal from the staff, which Dr. Partin

characterizes as a termination letter even though he actually had resigned, Dr. Partin

claims that it was sent in retaliation for his refusal to engage in an EMTALA violation.

EMTALA was enacted to combat the incentive structure posed by modern access to

medical care realities that "patients without the ability to pay sometimes rely on hospital

emergency rooms not just for emergencies but to treat their routine and chronic medical

problems." Genova v. Banner Health, 734 F.3d 1095, 1097 (10th Cir. 2013); see also 42

U.S.C. § 1395dd. "Meeting this demand can pose even the most altruistic hospital with a

grave financial challenge," and hospitals face the "alluring temptation to shift these

patients—and the losses they represent—onto nearby rivals." Id. "Sometimes hospitals

succumb to this temptation, sometimes going so far as to 'dump' patients with genuine

emergency conditions before they can be examined and stabilized." Id. Thus, "EMTALA

imposes certain mandates on hospitals regardless of whether a patient who presents to an

emergency room has the ability to pay for treatment." Gillispie v. RegionalCare Hosp.

Partners Inc., 892 F.3d 585, 589 (3d Cir. 2018).

Under the Act, "[f]irst, a hospital must examine everyone who arrives in its

emergency room seeking treatment, regardless of their ability to pay." Genova, 734 F.3d

at 1097 (citing 42 U.S.C. § 1395dd(a)). "Second, if the examination reveals the patient is

suffering from an emergency medical condition, the hospital usually must stabilize the

patient before getting into the business of trying to transfer him elsewhere." Id. (citing 42

§ U.S.C. 1395dd(a)). "Of course, the statute recognizes that sometimes a hospital simply

cannot provide the treatment a patient needs: in those circumstances, the hospital must

transfer the patient." Id. (citing 42 U.S.C. § 1395dd(b)(1)(B)). "But the basic statutory

point is plain: a patient requiring emergency care may not be dumped on another hospital

when there is no medical justification for doing so." Id. (citing 42 U.S.C. §

1395dd(c)(1)(A)).

"To help give bite to its policy objectives, EMTALA contains a pair of provisions

allowing private persons the right to sue for damages." Id. It allows suits by '[a]ny

individual who suffers personal harm as a direct result of a participating hospital's

violation of a requirement of this section." 42 U.S.C. § 1395dd(d)(2)(A). It adds with

respect to whistleblowers the following:

A participating hospital may not penalize or take adverse action [1] against

a qualified medical person ... or a physician because the person or physician

refuses to authorize the transfer of an individual with an emergency medical

condition that has not been stabilized or [2] against any hospital employee

because the employee reports a violation of a requirement of this section.

42 U.S.C. § 1395dd(i). "In the absence of direct evidence of retaliation, courts [have

applied] the McDonnell Douglas burden-shifting framework to ... [whistleblower

claims]" under EMTALA. Elkharwily v. Mayo Holding Co., 823 F.3d 462, 470 (8th Cir.

2016) (collecting cases). "That familiar approach was developed for claims brought under

Title VII of the Civil Rights Act of 1964." Gillispie, 892 F.3d at 592 (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 (1973)). Under this approach, a plaintiff must

first make a prima facie showing that: (1) the plaintiff engaged in the protected activity,

(2) adverse employment action, and (3) a causal connection between the two. Id. at 593.

We begin by noting that the provision under which Dr. Partin claims protection—a

physician who "refuses to authorize the transfer of an individual with an emergency

medical condition that has not been stabilized"—is actually inapplicable here. There is

absolutely no evidence that Hospital staff were seeking to have the patient transferred

either before or after before she was stabilized and that Dr. Partin refused to do so.

Instead, Dr. Partin claims that he was "refus[ing] to engage in and therefore prevented an

EMTALA violation by the hospital." Docket No. 43, at 23. In framing his claim this way,

he has pled himself out of court because such a refusal to engage in treatment protocols

that might or might not lead to a prohibited transfer of the patient is not protected

behavior under the terms of EMTALA. EMTALA's whistleblower protections extend to

refusals to transfer, or reporting a violation, which Dr. Partin has conceded he did not do.

See 42 U.S.C. § 1395dd(i). EMTALA defines the term "stabilized" in the following way:

"with respect to an emergency medical condition, . . . that no material deterioration of the

condition is likely, within reasonable medical probability, to result from the transfer of

the individual from a facility." 42 U.S.C. § 1395dd(e)(3)(B). "[I]n determining whether

an individual was properly stabilized, a court examines 'the patient's condition at the time

of the transfer or discharge." Bergwall v. MGH Health Servs., 243 F. Supp. 2d 364,

374−75 (D. Md. 2002) (internal quotation marks omitted); see also Thomas v. Christ

Hosp. and Medical Ctr., 328 F.3d 890, 895 (7th Cir. 2003) (concluding that "at the time

of discharge" was the relevant time period for whether a patient was stabilized for

purposes of EMTALA).

Dr. Partin's legal theory broadens the narrow focus of the statute beyond the point of

transfer to a review of the quality of care preceding a transfer. The quality and scope of

treatment provided to the patient are not addressed by this statute. The Seventh Circuit

held in Nartey v. Franciscan Health Hospital that "EMTALA is not a malpractice suit

covering treatment after an emergency patient is screened and admitted. We therefore

join the chorus of circuits that have concluded the EMTALA cannot be used to challenge

the quality of medical care." 2 F.4.th 1020, 1025 (7th Cir. 2021) (collecting cases). In one

of these cases relied upon by the Seventh Circuit, the Eleventh Circuit explained that by

"prescribing minimal standards for screening and transferring patients, but not for patient

care outside of these two narrowly defined contexts, Congress confined [EMTALA]

solely to address its concerns and, at the same time, avoided supplanting available state

malpractice and tort remedies." Smith v. Crisp Reg'l Hosp., Inc., 985 F.3d 1306, 1308

(11th Cir. 2021) (quoting Harry v. Marchant, 291 F.3d 767, 774 (11th Cir. 2002)).

EMTALA was not intended to "be a federal malpractice statute" nor was it intended to

"establish guidelines for patient care." Id. (quoting Harry, 291 F.3d at 773).

Here, the undisputed evidence shows that at the patient's time of discharge, she no

longer presented with an emergency medical condition and had long before been

medically stabilized. Dr. Partin thus cannot claim the protections of EMTALA to

challenge his termination by referencing his care leading up to this point. There simply

was no transfer of the patient ever contemplated. His remaining arguments about whether

the patient had the right to refuse care are not relevant, and "[f]actual disputes that are

irrelevant or unnecessary will not be counted" against an "otherwise properly supported

motion for summary judgment." Anderson, 477 U.S. at 247−48. Dr. Partin has not

presented a prima facie case of an EMTALA violation, and as such, summary judgment

must be granted in favor of Defendants on this claim.

B. BREACH OF BYLAWS CONTRACT

Dr. Partin has alleged two breach of contract claims against the Hospital, both based

on the Bylaws. He claims that the Bylaws, "constitute a binding contract between Dr.

Partin and the Hospital, [and] prescribe a review process for evaluating quality of care

issues and for terminating medical staff privileges." Docket No. 63, at 9. He contends

further that the Hospital "materially breached its duties under the Bylaws by terminating

Dr. Partin's medical staff privileges without adhering to any of the Bylaws' prescribed

processes for doing so." Id. According to Dr. Partin, the Hospital's breach of the Bylaws

deprived him of "access to his patients and destroyed his ability to sustain his livelihood,

thereby causing him substantial financial harm." Id. Dr. Partin's claim of breach of

contract of the Bylaws is a nonstarter, beginning with the fact that the Bylaws themselves

expressly state that they do not create a binding contract between the Hospital and any

staff member. In addition, the undisputed evidence discloses that the Hospital itself never

took any adverse action related to his clinical privileges which would entitle Dr. Partin to

a hearing or an appeal under the Bylaws.

"Under Indiana law, the elements of a breach of contract action are the existence of a

contract, the defendant's breach thereof, and damages." Bible v. U.S. Aid Funds, Inc., 799

F.3d 633, 644 (7th Cir. 2015) (quoting U.S. Valves, Inc. v. Dray, 190 F.3d 811, 814 (7th

Cir. 1999)). "The existence of a valid contract depends upon mutuality of obligation, i.e.,

there can be no contract unless both parties are bound." Marksill Specialties, Inc. v.

Barger, 428 N.E.2d 65, 69 (Ind. Ct. App. 1981) (citing Davis v. Davis, 151 N.E. 134

(Ind. 1926)). In certain circumstances, Indiana courts have determined that "hospital staff

bylaws can constitute a contract between the hospital and its staff." Pepple v. Parkview

Mem'l Hosp., Inc., 536 N.E.2d 274, 276 (Ind. 1989) (citing Terre Haute Reg. Hosp., Inc.

v. El-Issa, 470 N.E.2d 1371, 1377 (Ind. Ct. App. 1984). For example, in Terre Haute

Regional Hospital, Inc. v. El-Issa, the Indiana Court of Appeals found an enforceable

contract where the bylaws expressly provided that they were to be "equally binding" on

the hospital and the medical staff. 470 N.E.2d at 1377. The court concluded there were

mutual obligations under these bylaws, such that it must be treated as an enforceable

contract. Id. In contrast, in W.S.K. v. M.H.S.B., the Indiana Court of Appeals concluded

that a hospital's bylaws did not constitute an enforceable contract because the bylaws

expressly provided that they were not to be deemed a contract of any kind between the

hospital and its medical staff, and there was no such mutuality of obligation as required

for an enforceable contract in Indiana. 922 N.E.2d 671, 695 (Ind. Ct. App. 2010).

Here, the Bylaws not only fail to evince an intent of behalf of the Hospital to be

bound, such that the Bylaws can be enforced as a valid contract in Indiana, they

specifically provide to the contrary, stating that nothing contained within the Bylaws

"shall preclude the Board of Trustees from exercising its authority, when required to meet

its responsibility for the conduct of the Hospital." Docket No. 40-6, at 48. The Bylaws

further expressly provide that in the case of a conflict between the Bylaws of the Board of

Trustees and the Bylaws applicable to the medical staff, the Board of Trustees' Bylaws

will control. Id. As was the case in W.S.K., the Bylaws at issue here plainly state that

"[u]nder no circumstances shall [the] Bylaws be construed to create a contractual

relationship of any kind between or among the Board of Trustees or Hospital and Medical

Staff, [or] any of its members." Id. at 10. "If both parties to the agreement are not bound,

neither is bound." El-Issa, 470 N.E.2d at 1377. Here, the Hospital is not bound by the

medical staff Bylaws; thus, the Bylaws lack the mutuality of obligation necessary for

them to constitute a valid, enforceable contract capable of giving rise to a breach of

contract claim. Accordingly, Defendants are entitled to summary judgment on this claim.

C. BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING

Dr. Partin's second claim against the Hospital is again based on the Bylaws, which (he

says again) "constitute a binding contract between [himself] and the Hospital, [and]

contain an implied covenant of good faith and fair dealing." Docket No. 61, at 10. The

Bylaws, which prescribe a review process for evaluating quality of care issues and for

terminating medical staff privileges, were violated, according to Dr. Partin, who contends

that the Hospital and Eichenberger "evaded this review process in bad faith and through

improper and unlawful attempts to use the Exclusive Provider Agreement to terminate

Dr. Partin from the medical staff." Id. In doing so, he says, "the Hospital and

Eichenberger deprived [him] of the benefits of a contract to which he is a party." Id.

We have previously explained that the Bylaws did not create a contractual agreement

between Dr. Partin and the Hospital. In the absence a valid contract with the Hospital,

Defendants maintain that Dr. Partin cannot successfully state a claim for breach of a

covenant for good faith and fair dealing. We agree. "A party violates the implied duty of

good faith and fair dealing when, though not breaching the express terms of the contract,

he nonetheless behaves unreasonably or unfairly." Jackson v. J.P. Morgan Chase Bank,

N.A., 845 F.3d 852, 856 (7th Cir. 2017) (citing Old Nat'l Bank v. Kelly, 31 N.E.3d 522,

531 (Ind. Ct. App. 2015)). However, "Indiana does not recognize an implied duty of good

faith and fair dealing in every contractual setting." Id. Rather, courts will impose such a

duty of good faith and fair dealing only "if the contract is ambiguous or expressly

imposes such a duty on the parties." Old Nat'l Bank, 31 N.E.3d at 531 (citing First Fed.

Sav. Bank of Ind. v. Key Mkts., Inc., 559 N.E.2d 600, 604 (Ind. 1990)). Because the

Bylaws do not create or otherwise constitute a valid contract between the Hospital and

Dr. Partin, we need not address whether they are ambiguous or impose such a duty of

good faith. Accordingly, summary judgment in favor of Defendants will be entered on

this claim.

D. BREACH OF FEMA CONTRACT

Dr. Partin has framed a breach of contract claim based on the Hospital's contract with

FEMA as well, asserting that "FEMA had an Exclusive Provider Agreement with

Hospital of which Dr. Partin was an intended beneficiary." Docket No. 61, at 11. The

Hospital, Dr. Partin argues, "materially breached the Agreement by purporting to remove

Dr. Partin from the emergency department service in violation of the Agreement," that is,

without notice of his violations of the Hospital's policies, and that he has been "damaged

as a result of the Hospital's actions." Id. Defendants point out that the contract does not

include any expression of intent on the part of the Hospital to assume any direct

obligations to Dr. Partin; indeed, the contract details the respective duties that it imposes

on the Hospital and upon FEMA. Nowhere in the contract are obligations imposed on or

assumed by the Hospital relating to individual doctors or nurses supplied by FEMA.

Docket No. 40, at 43.

A party claiming to be a third-party beneficiary filing a breach of contract action must

be able to show: "(1) A clear intent by the actual parties to the contract to benefit the third

party; (2) a duty imposed on one of the contracting parties in favor of the third party; and

(3) performance of the contract terms is necessary to render the third party a direct

benefit intended by the parties to the contract." Eckman v. Green, 869 N.E.2d 493, 496

(Ind. Ct. App. 2007). "Among these three factors, the intent of the contracting parties to

benefit the third-party is controlling." Alexander v. Linkmeter Dev. II, LLC, 119 N.E.3d

603, 613 (Ind. Ct. App. 2019) (internal quotation omitted). To demonstrate intent, "[a]

third party must show that it will derive more than an incidental benefit from the

performance of the promisor." Id. (internal quotation omitted). "[I]t must clearly appear

that it was the purpose or a purpose of the contract to impose an obligation on one of

the contracting parties in favor of the third party. It is not enough that performance of

the contract would be of benefit to the third party." Cain v. Griffin, 849 N.E.2d 507, 514

(Ind. 2006) (internal quotation omitted). Such intent to "bestow rights upon a third party

must affirmatively appear from the language of the instrument when properly interpreted

and construed." Id. (internal quotation omitted). The plain language of the contract

read in context controls. "[W]henever possible," it must be construed "so as to render

each word, phrase, and term meaningful, unambiguous, and harmonious with the

whole." Citimortgage, Inc. v. Barabas, 975 N.E.2d 805, 813 (Ind. 2012). Where there is

a contract provision "expressly stating that nothing within the contract should be

construed as creating any third-party beneficiaries, this is enough to defeat a third-

party beneficiary claim." Penrod v. Quality Corr. Care LLC, 2020 WL 564163, at *3

(N.D. Ind. Feb. 5, 2020) (citing Adv. Ground Sys. Eng'g, Inc. v. RTW Indus., Inc., 388

F.3d 1036, 1043 (7th Cir. 2004).

The Hospital points to the following clauses of its Agreement with FEMA:

6. RELATIONSHIP OF COMPANY AND HOSPITAL.

a. [FEMA] is and all times shall be an independent contractor supplying

the services hereunder. As an independent contractor, neither [FEMA]

nor any physician nor any physician extender supplied by [FEMA] are

entitled to wages or to participate in other Hospital employee benefit

programs such as medical insurance and workers' compensation.

Hospital shall have no responsibility with respect to withholding any

taxes of any nature from the amounts to be paid by Hospital to

[FEMA] hereunder, nor for the acquisition of workers' compensation

insurance or any other insurance with respect to [FEMA] or any

physicians or physician extenders supplied by [FEMA], nor for the

payment of any items commonly referred to as "payroll taxes"

including, without limitation, unemployment compensation taxes,

F.I.C.A. taxes, etc. [FEMA] specifically warrants and represents that

all such items are [FEMA]'s responsibility as an independent

contractor rendering services hereunder.

. . .

10. FINANCIAL PROVISIONS.

a. As an independent contractor, [FEMA] agrees to be responsible for

payment of all taxes and withholdings on amounts received from

Hospital. Each physician and physician extender rendering services

hereunder shall be considered an independent contractor of Hospital.

[FEMA] shall be exclusively responsible for any and all compensation

to be paid to physicians and physician extenders rendering services

hereunder, which compensation shall at all times be fair market value

and commercially reasonable for the services performed. Physicians

and Physician Extenders shall not be entitled to any benefits that

Hospital may offer to Hospital's employees from time to time.

Docket No. 40-1, at 7, 13 (emphasis added). The Agreement's repeated use of the phrase,

"independent contractor," in addition to the provisions disclaiming any direct benefits

from the Hospital to FEMA's provided medical personnel, supports the view that the

Agreement lacks the requisite intent language necessary to create an obligation in favor

of a third-party, such as Dr. Partin.

Defendants also cite the HIPPA Business Associate Agreement that was attached to

and made a part of the Hospital's agreement with FEMA, which provides that:

No Third Party Beneficiaries. Nothing in this Attachment shall confer upon

any person other than the parties and their respective successors or assigns,

any rights, remedies, obligations, or liability whatsoever.

Docket No. 40-1, at 38. A contract provision that "expressly stat[es] that nothing within

the contract should be construed as creating any third-party beneficiaries [] is enough to

defeat a third-party beneficiary claim." Penrod, 2020 WL 564163, at *3 (citing RTW

Indus., Inc., 388 F.3d at 1043). We acknowledge that this HIPPA Business Associate

Agreement provision was not included in the main Agreement, only that it was "made a

part of" the Agreement by virtue of the attachment. Docket No. 40-1, at 29. However,

this clause clearly reinforces the absence of any intent by the Hospital or FEMA to

obligate themselves for the benefit of any third-party, especially given that the attachment

is the only contractual agreement provision that explicitly references the Hospital and the

"contractors," i.e., FEMA's employees. Id.

Dr. Partin maintains that the Hospital "agreed not to remove a physician from his job

except in specific enumerated circumstances – a clause that is plainly intended to protect

and benefit the individual physicians." Docket No. 43, at 32. This provision provides Dr.

Partin's basis for asserting third party beneficiary rights under the contract. However, a

careful reading of that language makes clear that FEMA agreed to remove physicians

upon the occurrence of one of the specific enumerated circumstances, which included

when a physician failed to comply with the Hospital's rules "after being given notice of

his failure to comply." Docket No. 43, at 32; Docket No. 40-1, at 3−4. Contrary to Dr.

Partin's argument, this clause obligates FEMA to immediately remove a physician only if

after being notified, the physician does not comply with the Hospital's rules; it does not

obligate the Hospital to give notice to a FEMA physician before requesting his/her

termination, nor does it obligate FEMA to terminate an employee only upon the

occurrence of one of the enumerated circumstances. This clause imposes an obligation on

FEMA towards the Hospital to always, and immediately, remove a physician upon the

occurrence of one or more of the enumerated circumstances; it imposes no reciprocal

obligation on the Hospital, nor does it place an obligation on FEMA to terminate its own

employees.

Dr. Partin's other arguments are similarly unavailing; for example, he contends that

FEMA physicians are the intended beneficiaries of FEMA's contract with the Hospital

because, in exchange for FEMA's agreement to staff the Hospital, the Hospital "agreed to

subsidize the group specifically for the purpose of ensuring that the individual physicians

have jobs in which they receive reasonable compensation." Docket No. 43, at 32 (citing

Docket No. 40-1, at 13). The specific language on which Dr. Partin bases this claim states

that the Hospital "acknowledges and agrees that in order for [FEMA] to fulfill its staffing

obligations for physicians and physician extenders required pursuant to this Agreement,

[FEMA's] level of revenue from the provision of professional services performed by the

providers must be of a sufficient level . . . so that [FEMA] is able to provide reasonable

and competitive salaries and benefits to its physicians and physician extenders." Docket

No. 40-1, at 13. Further, FEMA "acknowledges and agrees that [the] Hospital must

provide a revenue guarantee that is commercially reasonable and consistent with fair

market value." Id. In other words, the Hospital agreed to provide a revenue guarantee to

FEMA to ensure that FEMA "is able to adequately compensate the physicians and/or

physician extenders and as necessary for [FEMA] to render emergency department

services at [the] Hospital," but this provision does not obligate FEMA to pay competitive

salaries to its doctors or that the Hospital assumes that role directly towards the

physicians. Id. Considering the overall relationship between FEMA and the Hospital per

their Agreement to supply medical personnel to the Hospital, we cannot say that the

revenue guarantee by the Hospital to FEMA obligates FEMA (or the Hospital) to

guarantee compensation to its FEMA-provided doctors at specific levels. At most, the

agreement between FEMA and the Hospital creates nothing more than an "incidental

benefit" to Dr. Partin. Alexander, 119 N.E.3d at 613.

According to Dr. Partin, "FEMA physicians believe that the contract is intended to

benefit not just FEMA but its individual physicians." Docket No. 43, at 32. Even if true

and relevant to a resolution of the dispute before us, this claim fails because, insofar as

Dr. Partin's alleged entitlement is concerned, "[i]t is not enough that performance of

the contract would [simply] be of benefit to the third party." Cain, 849 N.E.2d at 514

(internal quotation omitted). The controlling issue is whether the contract's purpose was

to "impose an obligation on one of the contracting parties in favor of the third party." Id.

(emphasis added). Dr. Partin has failed to identify any such purpose or obligation in his

favor. Accordingly, Defendants are entitled to summary judgment on this claim as well.

E. TORTIOUS INTERFERENCE WITH CONTRACTUAL

RELATIONSHIPS

Dr. Partin next contends that Defendants tortiously interfered with his Employment

Agreement with FEMA, which was a valid and enforceable contract. Docket No. 61, at

11. He argues that Dr. Eichenberger and the Hospital induced the termination of his

contract with FEMA through "undue economic coercion and threats of financial ruin

against FEMA," "defamatory statements about Dr. Partin in the Termination Letter," and

"retaliatory acts in violation of EMTALA and Indiana law." Id. All of these actions, he

asserts, were: "without legal or factual grounds under the Exclusive Provider

Agreement," made "in bad faith to avoid the process in the medical staff bylaw," and

"based on ill will and malice against Dr. Partin." Id. In response, Defendants argue that

they had a "legitimate reason and contractual right to request that [Dr. Partin] no longer

provide emergency medicine services at [the Hospital]," Docket No. 40 at 45, and the

actions it took were pursuant to those reasons and rights.

Under Indiana law, the elements of an action for interference with a contract are: (1)

the existence of a valid and enforceable contract; (2) defendants' knowledge of the

contract's existence; (3) defendants' intentional inducement of the breach of the contract;

(4) the absence of justification; and (5) damages resulting therefrom. Furno v. Citizens

Ins. Co. of Am., 590 N.E.2d 1137, 1140 (Ind. Ct. App. 1992). The critical element at issue

here is whether Defendants' actions were justifiable, in which case any "interference"

would not be tortious. Flintridge Station Assoc. v. Am. Fletcher Mortg. Co., 761 F.2d

434, 441 (7th Cir. 1985). "A plaintiff must state more than a mere assertion that the

defendant's conduct was unjustified." Morgan Asset Holding Corp. v. CoBank, ACB, 736

N.E.2d 1268, 1272 (Ind. Ct. App. 2000). Instead, "'absence of justification' requires proof

that the 'interferer acted intentionally, without a legitimate business purpose, and the

breach is malicious and exclusively directed to the injury and damage of another.'" Am.

Commercial Lines LLC v. Lubrizol, 2015 WL 5295128, at *4 (S.D. Ind. Sept. 10, 2015)

(quoting Miller v. Central Ind. Commty. Found., Inc., 11 N.E.3d 944, 961 (Ind. Ct. App.

2014)); see also Flintridge, 761 F.2d at 441 (defining unjustified as "disinterested

malevolence"; "a malicious [conduct] unmixed with any other and exclusively directed to

injury and damage of another"). The "existence of a legitimate reason for the defendant's

actions provides the necessary justification to avoid liability." CoBank, 736 N.E.2d at

1272 (citing Wrinkler, 619 N.E.2d at 600−01).

Dr. Partin does not contest that Defendants had a legitimate reason for requesting that

FEMA terminate him. The closest Dr. Partin comes to addressing this argument that the

Hospital had a legitimate reason to seek termination of his employment is his colorful

argument that, "[c]ontrary to Defendants' portrayal of the law, [his claim] does not fail if

the Court finds one particle of proper motivation floating in a sea of Defendants' bad

conduct." Docket No. 43, at 33. He suggests that the "facts of this case fall neatly" into a

"classic form of improper tortious conduct through the exertion of undue 'economic

pressure,'" arguing that "courts have found specifically that a threat by A to terminate its

contract with B unless B takes action against C may constitute tortious interference." Id.

For support, Dr. Partin cites a Connecticut case. Id. (citing FB Const. Mgmt. of Trumbull,

Inc. v. Herbst, 2013 WL 6989510, at *4 (Conn. Super. Ct. Dec. 18, 2013)). Moreover, he

says that "threatening to terminate a contract with an employer unless it fires a specific

employee is a clear example" of such undue economic pressure, support for which, this

time, he cites an Arizona case. Id. (citing Riley v. City of Prescott, Ariz., 2014 WL

641632, at *14 (D. Ariz. Feb. 19, 2014)).

We rely on Indiana law, and Indiana law directs Dr. Partin to show, if he can, that

Defendants "acted with malicious intent 'unmixed with any other [intent] and exclusively

directed to the injury and damage of another.'" Lubrizol, 2015 WL 5295128, at *6

(quoting Flintridge, 761 F.2d at 441). Dr. Partin's claims and arguments fall well short of

satisfying this requisite showing. Here, the evidence reveals multiple, legitimate reasons

in support of Defendants' conclusion that to have Dr. Partin was no longer welcome as a

physician caring for patients within their facility: "failing to treat a patient with dignity,

failing to honor a patient’s expressed refusal of care, failing to work collaboratively and

collegially with nursing staff and misrepresenting and omitting material facts to the

[Hospital's] President," each of which incidents violated the Hospital's rules and policies.

Docket No. 40, at 48. Even if Dr. Partin was "fired" due to the Hospital's and Dr.

Eichenberger's actions (the uncontested facts show that Dr. Partin actually resigned), no

reasonable jury could find that the Defendants' exclusive justification for its actions was

either malicious or unconnected to any legitimate business purpose or that it was based

solely on the goal of inducing FEMA to breach its contract with Dr. Partin. Accordingly,

Defendants are once again entitled to summary judgment, this time on Dr. Partin's

tortious interference with contract claim.

F. TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS

Dr. Partin also claims that the Hospital and Dr. Eichenberger intentionally interfered

with the business relationships between himself and his patients "by acting to remove Dr.

Partin from performing emergency medical services at the Hospital, thereby cutting off

Dr. Partin's ability to treat patients." Docket No. 61, at 12. The interference was

unjustified, he maintains, because "it was accomplished through undue economic

coercion and threats of financial ruin against FEMA; through defamatory statements

about Dr. Partin in the Termination Letter; through retaliatory acts in violation of

EMTALA and Indiana law; without legal or factual grounds under the Exclusive Provider

Agreement; in bad faith to avoid the process in the medical staff bylaw; and based on ill

will and malice against Dr. Partin." Id. Dr. Partin claims these actions by Defendants

caused him to incur damage for which Defendants should compensate him. Defendants

rejoin that Dr. Partin is unable to prove the essential element requiring some independent

illegal conduct. Because his EMTALA allegation is the only claim that arguably could

satisfy the illegal conduct element, and because his EMTALA claim has not survived our

judicial review, his interference with business relationships claim fails as well. Docket

No. 40, at 51−52.

To prevail on a claim for tortious interference with business relationships, Dr. Partin

must prove: (1) the existence of a valid relationship, (2) Defendants' knowledge of the

existence of the relationship, (3) Defendants' intentional interference with that

relationship, (4) the absence of justification, and (5) damages resulting from the

Defendants' wrongful interference with the relationship. Gov't Payment Serv. v. Ace Bail

Bonds, 854 N.E.2d 1205, 1209 (Ind. Ct. App. 2006) (citing Felsher v. Univ. of Evansville,

755 N.E.2d 589, 598 n. 21 (Ind. 2001)). As Defendants have noted, a claim of tortious

interference with a business relationship "requires some independent illegal action." Id.

(citing Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 291 (Ind.

Ct. App. 1999)). "Indiana law appears settled that neither defamation nor breach of

contract satisfies the 'illegal action' requirement." Nikkish Software Corp. v. Manatron,

Inc., 801 F. Supp. 2d 791, 797 (S.D. Ind. 2011). We also agree with Defendants that Dr.

Partin's allegation of illegal EMTALA retaliation is the only allegation that could

possibly support a tortious interference with business relationships claim, but since we

have dismissed his EMTALA claim, this interference with business relationships claim

likewise collapses. Accordingly, summary judgment in favor of the Defendants on this

claim is required.

G. DEFAMATION CLAIMS

Dr. Partin includes in his prolix complaint two claims of defamation: first, Dr.

Eichenberger's letter to FEMA, requesting Dr. Partin's removal from the Hospital's

Emergency Department; and second, an email from Director Marksbury sent to her

supervisor, Kelly McMinoway, who was a Hospital administrator as well, which Ms.

McMinoway forwarded to Dr. Eichenberger.4 Dr. Partin has alleged that the

Eichenberger letter was published to FEMA and "others within the Hospital," and that

Marksbury's email was published to Hospital administrators, including Dr. Eichenberger.

Docket No. 61, at 13. Defendants attack these allegedly defamatory actions based on the

lack of any publication: regarding the letter, Defendants maintain that their contractual

4 The Court granted Dr. Partin leave to amend his complaint after Defendants moved for

summary judgment to allow him to add this second defamation claim against Defendants

because he had not learned of the Marksbury email until discovery was well underway. The

Court allowed Defendants an additional fourteen days to supplement its reply brief in support of

their motion for summary judgment to include additional arguments regarding the email. Thus,

we consider here on summary judgment both instances of alleged defamation.

rights and duties not only justified, but required the communications of their concerns to

FEMA. (Dr. Partin has produced no evidence showing that the letter was distributed to

anyone else within the Hospital). As for Marksbury's email, Defendants argue it was

protected by Indiana's qualified privilege for intracorporate communications because it

was made in good faith pursuant to the duty privately imposed on her by her supervisors

and was made to a person with a corresponding duty or interest in the information

conveyed. In response, Dr. Partin maintains that neither act of defamation was protected

by Indiana's qualified privilege because Defendants lost the benefit of any such privilege

when they made statements "without belief or grounds for belief in its truth." Docket No.

43, at 35 (quoting Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind. 1992).

To maintain an action for defamation under Indiana law, Dr. Partin must be able to

demonstrate: "(1) a communication with defamatory imputation; (2) malice; (3)

publication; and (4) damages." Kelley v. Tanoos, 865 N.E.2d 593, 597 (Ind. 2007) (citing

Schrader v. Eli Lilly and Co., 639 N.E.2d 258, 261 (Ind. 1994). "Defamation is not

actionable unless there is a 'publication.'" Delal v. PPG Indus., Inc., 590 N.E.2d 1078,

1080-81 (Ind. Ct. App. 1992) (citing Brockman v. Detroit Diesel Allison Div. Etc., 366

N.E.2d 1201 (Ind. 1977)). "Without communication of defamatory matter to a third party,

it is of no consequence whether the communication is actionable per se, privileged, or

uttered with malice." Id.

Indiana law affords a qualified privilege defense to a defamation claim for

"communications made in good faith on any subject matter in which the party making the

communication has an interest or in reference to which he has a duty, either public or

private, either legal, moral, or social, if made to a person having a corresponding interest

or duty." Kelley, 865 N.E.2d at 597 (citing Bals v. Verduzco, 600 N.E.2d 1353, 1356 (Ind.

1992)). The privilege is intended to foster "full and unrestricted communication on

matters in which the parties have a common interest or duty." Schrader, 639 N.E.2d at

262. "In the absence of a factual dispute, the applicability of the privilege is a question of

law to be determined by the court." Kelley, 865 N.E.2d at 597.

Even when the privilege applies, "[t]here is a limit to the scope of protection available

under the qualified privilege doctrine." Id. at 598. "A communication otherwise protected

by a qualified privilege may lose its protection if it is shown that: '(1) the communicator

was primarily motivated by ill will in making the statement; (2) there was excessive

publication of the defamatory statements; or (3) the statement was made without belief or

grounds for belief in its truth.'" Id. (quoting Bals, 600 N.E.2d at 1356). "And although the

term 'malice' is frequently applied in viewing such acts, it appears 'the essence of the

concept is not the speaker's spite but his abuse of the privileged occasion by going

beyond the scope of the purposes for which privilege exists.'" Id. "Once the

communication is established as qualifiedly privileged, the plaintiff then has the burden

of overcoming that privilege by showing that it has been abused." Schrader, 639 N.E.2d

at 262. "The essential elements of the defense of qualified privilege are good faith, an

interest to be upheld, a statement limited in its scope to this purpose, a proper occasion,

and publication in a proper manner to the appropriate parties only." Id.

1. DR. EICHENBERGER'S LETTER TO FEMA

We begin by holding that Dr. Eichenberger's letter to FEMA does not constitute

actionable defamation because it was not published to any third-party; the evidence

shows that it was sent only to FEMA, a recipient with whom Defendants had a

contractual obligation to communicate regarding the conduct of any of FEMA's

physicians. Indeed, the Agreement specifically provided that the Hospital "shall inform"

FEMA of "any conduct or activities of any [FEMA]-supplied physician or physician

extender which impairs [FEMA]'s ability to perform services at Hospital or which may

adversely reflect upon the physician's or physician extender's professional competence."

Docket No. 40-1, at 5. FEMA has a reciprocal obligation under the contract with the

Hospital to "confer" with the Hospital "on an as needed basis" regarding any physician

conduct issues. Id. at 11. Dr. Partin does not dispute that Defendants had such a

contractual obligation to communicate this material, nor does he argue on summary

judgment that the letter was distributed to anyone else. Instead, Dr. Partin challenges

Defendants' alternative argument that the letter is covered by Indiana's qualified

privilege; specifically, he argues that Dr. Eichenberger had no factual basis for the false

statements set out in his letter.

Even if Dr. Eichenberger's letter were construed as a communication to a third-party,

the qualified privilege protects the letter against a defamation claim, given that both

FEMA and the Hospital had a common interest and duty to secure and enhance the safety

of the staff and patients within the Emergency Department by engaging physicians who

met all the required performance standards.

2. DIRECTOR MARKSBURY'S EMAIL

Dr. Partin also contends that Defendants forfeited their qualified privilege for Director

Marksbury's intracompany email communications when she wrote these messages

"without belief or grounds for belief in [their] truth." Bals, 600 N.E.2d at 1356.

Defendants rejoin that Director Marksbury did not abuse the privilege in any respect

since she was reporting information and opinions to her supervisors as she was duty-

bound to do, informing them: that she did not think she could convince the Emergency

Department staff to continue supporting Dr. Partin, that administrators would continue to

be pulled into situations due to the lack in confidence in Dr. Partin's judgment, and that,

based on her conversation with Dr. Wurst, she did not think there was a viable action plan

to repair the situation within FEMA because Dr. Wurst provided no feedback on ways to

get Dr. Partin and the Emergency Department staff to work collaboratively. Docket No.

40-33, at 1. Moreover, Director Marksbury wrote in her email that the nurses involved in

this situation were some of her highest-performing nurses, and that she stood by their

conviction to advocate for their patient, and their judgment that Dr. Partin's

documentation did not reflect the truth. Id.

"Intracompany communications regarding the fitness of an employee are protected by

the qualified privilege, in order to accommodate the important role of free and open

intracompany communications and legitimate human resource management needs."

Schrader, 639 N.E.2d at 262. "The privilege protects personnel evaluation information

communicated in good faith." Id. "The essential elements of the defense of qualified

privilege are good faith, an interest to be upheld, a statement limited in its scope to this

purpose, a proper occasion, and publication in a proper manner to the appropriate parties

only." Id.

Here, the evidence indisputably establishes that the purpose of Director Marksbury's

email was to report the kind of information to her supervisor, that she was required to

convey. She communicated her opinions, based on information she had obtained from

conferring with staff, and her concerns were legitimate concerns, arising from her own

investigation of the incident. Moreover, her email was limited to its (important) business

purpose and was published only to her supervisors. There is no evidence that the email

was ever improperly communicated to any outside parties. Accordingly, the

uncontroverted evidence establishes that Dr. Marksbury is entitled to the protections of a

qualified privilege.

"Once the communication is established as qualifiedly privileged, the plaintiff then

has the burden of overcoming that privilege by showing that it has been abused." Id. Dr.

Partin has not met his burden of overcoming the privilege; he points merely to Director

Marksbury's deposition testimony wherein she states that she did not personally

determine that Dr. Partin's documentation did not reflect the truth, since she was not

present at the time, but that, even so, she stood by her nurses' conviction that Dr. Partin's

documentation did not reflect the truth. Docket No. 69-1, at 5. No reasonable jury could

find that Defendants' communications leading up to Dr. Partin's resignation were

improper, much less defamatory; accordingly, summary judgment favors Defendants on

both defamation claims.

V. CONCLUSION

Accordingly, as explained above, Defendants’ Motion for Summary Judgment

[Docket No. 38] is GRANTED as to all claims. All other pending motions are denied as

moot. Final judgment shall be issued accordingly.

IT ISSO ORDERED.

Date: 10/17/2022 Sud, Bins Biker

SARAH EVANS BARKER, JUDGE

United States District Court

Southern District of Indiana

Distribution:

John Robert Hofmann

WATERS TYLER HOFMANN & SCOTT, LLC

jhofmann@wthslaw.com

Michael C. Merrick

KAPLAN JOHNSON ABATE & BIRD LLP

mmerrick@kaplanjohnsonlaw.com

Rodney Lee Scott

WATERS, TYLER, HOFMANN & SCOTT, LLC

rscott@wthslaw.com

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