The opinion
YI-ZARN WANG * NO. 2020-CA-0249
VERSUS *
COURT OF APPEAL
J. PHILLIP BOUDREAUX, *
M.D.; OCHSNER MEDICAL FOURTH CIRCUIT
CENTER - KENNER, L.L.C.; *
OCHSNER CLINIC STATE OF LOUISIANA
FOUNDATION; AND *******
OCHSNER HEALTH SYSTEM
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2017-11867, DIVISION “N-8”
Honorable Ethel Simms Julien, Judge
******
Judge Edwin A. Lombard
******
(Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge
Tiffany G. Chase)
Michael Patrick Doyle
Patrick Dennis
Jeff Avery
DOYLE LLP
3401 Allen Pkwy, Suite 100
Houston, TX 77019
Paul M. Sterbcow
Ian F. Taylor
LEWIS, KULLMAN, STERBCOW & ABRAMSON, LLC
601 Poydras St., Suite 2615
New Orleans, LA 70130
COUNSEL FOR PLAINTIFF/APPELLANT
Jeff Landry
Attorney General
Kelli M. Khalaf
J. Marc Vezina
Special Assistants
Attorney General
VEZINA AND GATTUSO, L.L.C.
401 Weyer St., P. O. Box 461
Gretna, LA 70054
Pauline F. Hardin
Tyler J. Rench
JONES WALKER LLP
201 St. Charles Avenue, 49th Floor
New Orleans, LA 70170
Judith W. Giorlando
BREAZEALE, SACHSE & WILSON, L.L.P.
301 Main St., Suite 2300
One American Place
Baton Rouge, LA 70801
COUNSEL FOR DEFENDANTS/APPELLEES
AFFIRMED
JANUARY 15, 2020
EAL
RML
TGC
By devolutive appeal, Yi-Zarn Wang, M.D. (the plaintiff), challenges the
district court judgments in favor of the defendants, Ochsner Medical Center-
Kenner, L.L.C., Ochsner Clinic Foundation, Ochsner Health System (hereinafter
“Ochsner”), and Dr. J. Philip Boudreaux, dismissing all of Dr. Yang’s claims with
prejudice. After de novo review of the record in light of the applicable law and
arguments of the parties, we affirm the district court judgments.
Relevant Facts and Procedural History
In 2005, Dr. Wang was hired by Louisiana State University Health Sciences
Center New Orleans (“LSU”) as a faculty member; concomitantly, Dr. Wang
applied for and received clinical privileges at Ochsner as non-employed (by
Ochsner) medical staff. As required by Ochsner, Dr. Wang re-applied every two
years to maintain his privileges at Ochsner. By letter of June 30, 2015, Dr. Wang’s
most recent appointment to the active Ochsner Medical Staff (for the term
7/31/2015-7/31/2017) was confirmed; the confirmation letter included a copy of
the current Ochsner Code of Conduct (“Policy 13”) and Dr. Wang was advised that
1
the current Ochsner Bylaws (pertaining to clinical privileges as implemented by
the Ochsner Medical Executive Committee (“MEC”)) were available for his
review in the Medical Staff office. It is undisputed that these documents constitute
the contract between the parties.
In November 2015, an Ochsner patient1 diagnosed with appendicitis
expressed concern about Dr. Wang’s non-surgical medical management of his
appendicitis and requested a second opinion. Subsequently, Dr. Wang received a
letter (dated December 18, 2015) from the Ochsner Medical Leadership Council
(“MLC”) informing him that: (1) the patient’s complaint about Dr. Wang’s course
of treatment had been reviewed; (2) non-surgical medical management was neither
recognized nor authorized treatment by Ochsner for patients clinically diagnoed
with appendicitis; and (3) the matter had been referred to the MEC for further
review.
In February 2016, Dr. Wang received a letter from the MEC confirming its
review and advising Dr. Wang in clear terms “non-surgical medical management
of patients with appendicitis is not a privilege/practice available to Ochsner
Medical Staff.” (Emphasis added). In April 2016, Dr. Wang treated another
Ochsner patient diagnosed with appendicitis in the Emergency Room (“ER”) and
transferred to general surgery. Dr. Wang confirmed the diagnosis but, contrary to
the explicit instructions received from the MEC and MLC, made the following
entry into the patient’s record on April 20, 2016:
.1 The medical records in this matter are sealed.
2
. . . I have [sic] a long discussion with the patient about the treatment
option evolution in the last 20 years. I have [sic] told her about my
view and the literatures [sic] that back up my evidences based practice
and the position of the hospital committee I also advised her she can
request for [sic] another surgeon to provide care if she prefers. She
said she likes my view and [sic] willing to address her problem with
abx as the first line tx.
The patient, discharged from Ochsner on April 22, 2016, underwent an
emergency appendectomy surgery that same day at Touro Infirmary.
On May 27, 2016, Dr. Wang received a hand-delivered letter from the MEC
informing him that his non-surgical treatment of the April 2016 Ochsner
appendicitis patient was in direct violation of its instructions to Dr. Wang to
discontinue all non-surgical medical management of patients with appendicitis. In
addition, the MEC found Dr. Wang’s medical entry regarding his disagreement
with the Ochsner policy regarding appendicitis care to be derogatory, impugning
the Ochsner quality of care and inappropriately disclosing confidential peer review
information in violation of the Ochsner Code of Conduct. Accordingly, Dr. Wang
was informed that: (1) his clinical privileges were suspended for a five day period,
May 27-June 1, 2016; and (2) to maintain his clinical privileges Dr. Wang was
required to return a signed copy of the letter to signify his agreement to the
personal professional conduct plan put forth in the letter requiring him to comply
with MEC policy directives and refrain from making derogatory comments about
the Ochsner quality of care or disclosing information pertaining to the Ochsner
confidential peer review process; and (3) his failure to provide this signed copy of
the letter to the Medical Staff office by the allotted time would constitute “a
voluntary resignation of your OMC-K Medical Staff membership and clinical
privileges.” (Emphasis in original).
3
Dr. Wang signed the receipt verifying he received the letter dated May 27,
2016, on that same date. Nonetheless, he failed to timely return the requisite
signed copy of the letter acknowledging his acceptance and agreement to the
proposed professional conduct plan. As forewarned, Dr. Wang’s clinical privileges
were relinquished as of May 31, 2016.
Rather than re-apply for clinical privileges (the appropriate course of action
as advised by both Ochsner and Dr. Wang’s supervisor on the LSU faculty2), Dr.
Wang filed a federal lawsuit against Ochsner and his Ochsner/LSU colleague, Dr.
J. Philip Boudreaux, alleging that they conspired against him in violation of the
federal Racketeer Influenced and Corrupt Organizations Act of 1970 (“RICO”).
The federal district court dismissed Dr. Wang’s RICO claims with prejudice.3
Wang v. Ochsner Med. Ctr-Kenner, LLC, 17-5134 (E.D. La. 12/7/2017), 2017 WL
10065713.
Shortly thereafter, Dr. Wang filed this lawsuit in state court, again naming
Ochsner and Dr. Boudreaux4 as defendants and alleging that Ochsner and Dr.
Boudreaux, their agents, employees, and “other third parties”5 acted in concert in a
civil conspiracy to defraud him and other illegal and wrongful activities by
diverting his patients to Dr. Boudreaux. More specifically, Dr. Wang asserted
claims for (1) breach of contract; (2) negligent misrepresentation; (3) tortious
2
Notably, when a practitioner voluntarily relinquishes privileges, as in this case, the practitioner
can immediately submit a new application of reinstatement of membership or clinical privilege. If
the practitioner’s re-application is denied, then the right to a hearing attaches, pursuant to Article
8.1 of the Bylaws. Accordingly, to maintain his privileges at Ochsner or, alternatively, receive a
hearing on the matter, Dr. Wang should have filed a reapplication for clinical privileges as advised
by both Ochsner and LSU supervisors.
3
Dr. Wang’s state claims were dismissed without prejudice.
4
Although the acts took place in in Jefferson Parish, Dr. Wang filed the claim in Orleans Parish
because Dr. Boudreaux is a resident of Orleans Parish,
5
Dr. Wang specifically names the MEC, another Ochsner doctor and an Ochsner employee as
co-conspirators.
4
interference with Dr. Wang’s relationships in the medical community; and (4)
violation of the Louisiana Unfair Trade Practices and Consumer Protection Law
(LUPTA) La. Rev. Stat. 51:4101, et seq. Pursuant to La. Code Civ. Proc. art.
3601, Dr. Wang also sought injunctive and declaratory relief with respect to his
suspension from practice and loss of hospital privileges.
On April 15, 2019, Dr. Wang filed a motion for partial summary judgment
on his breach of contract claim; on May 22, 2019, Ochsner filed a cross-motion for
partial summary judgment on Dr. Wang’s breach of contract claim, pointing out
that its action fully complied with the contract between the parties. After a
hearing on June 21, 2019, the district court entered judgment on July 18, 2019,
granting Ochsner’s cross-motion for partial summary judgment, denying Dr.
Wang’s motion for partial summary judgment, and dismissing Dr. Wang’s breach
of contract claim with prejudice.
Subsequently, both Ochsner and Dr. Boudreaux filed motions for summary
judgment on Dr. Wang’s remaining claims: Ochsner pointed out that as part of his
2015 reapplication for clinical privileges Dr. Wang granted broad immunity to
Ochsner and agreed not to sue for any actions taken by Ochsner towards him; Dr.
Boudreaux pointed out that Dr. Wang cannot satisfy his burden of proof at trial on
his claims made against Dr. Boudreaux. The district court agreed and, on February
3, 2020, granted summary judgment in favor of Ochsner and Dr. Boudreaux and
dismissed Dr. Wang’s lawsuit with prejudice.
Dr. Wang timely filed this appeal challenging the district court judgments.
Standard of Review
A district court's ruling on summary judgment is reviewed de novo, using
the same criteria that governs the district court's consideration of whether summary
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judgment is appropriate, i.e., whether there is any genuine issue of material fact
and whether the movant is entitled to summary judgment as a matter of law.
Wright v. Louisiana Power & Light, 2006-1181, p. 17 (La. 3/9/07), 951 So.2d
1058, 1070.
Summary Judgment
A motion for summary judgment is a procedural device used when there is
no genuine issue of material fact for all or part of the relief prayed for by a litigant.
Beer Indus. League of Louisiana v. City of New Orleans, 2018-0280, p. 7 (La.
6/27/18), 251 So. 3d 380, 385-86. Summary judgment, designed to secure the just,
speedy, and inexpensive determination of civil actions (with the exception of
certain domestic matters), is favored under Louisiana law. La. Code Civ. Proc. art.
966(A)(2). Accordingly, “[a]fter an opportunity for adequate discovery, a motion
for summary judgment shall be granted if the motion, memorandum, and
supporting documents show that there is no genuine issue of material fact and that
the mover is entitled to judgment as a matter of law.” La. Code Civ. Proc. art.
966(A)(3).
Burden of Proof
On motion for summary judgment, the burden of proof remains with the
movant. La. Code Crim. Proc. art. 966(D)(1). However, when a moving party will
not bear the burden of proof at trial and points out there is an absence of factual
support for one or more elements essential to the adverse party’s claim, action, or
defense, then the burden is on the non-moving party to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary burden of proof
at trial. Id.
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Dr. Wang’s Claims against Ochsner
Dr. Wang argues that the district court erred in denying his Motion for
Partial Summary Judgment on his breach of contract claim, granting Ochsner’s
Cross-Motion for Summary Judgment on Dr. Wang’s breach of contract claim, and
granting Ochsner’s Motion for Summary Judgment on the remaining claims
against Ochsner.
Applicable law
The essential elements of a breach of contract claim are: (1) the existence of
a contract; (2) the party’s breach thereof; and (3) resulting damages. Padian v.
Algiers Charter School Association, Inc., 2019-0201, p. 3 (La. App. 4 Cir.
6/19/19), 274 So.3d 1266, 1268 (citation omitted). When the words of a contract
are clear and explicit and lead to no absurd consequences, no further interpretation
may be made in search of the parties' intent. La. Civ. Code art. 2046.
Discussion
In his motion for partial summary judgment, Dr. Wang asserts that (1) a
contract existed based on his application to Ochsner for privileges and the parties’
mutual agreement to Ochsner’s Bylaws, and (2) Ochsner breached this contract
when it revoked Dr. Wang’s privileges without following the hearing procedures
as required in the Bylaws.
In its response and cross-motion, Ochsner points out that its course of action
fully complied with Ochsner policies and procedures and, hence, the contract
between the parties. In support of its motion, Ochsner submits copies of the
documents creating the contract, specifically, Dr. Wang’s most recent (2015) re-
application (entitled Conditions of Reappointment Application-Release and
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Immunity), the Ochsner Bylaws of the Medical Staff,6 including Medical Staff
Policies and, most particularly, Policy 13 - the Ochsner Code of Conduct. By
signing his 2015 re-application, Dr. Wang confirmed that he read the Bylaws and
related documents and was bound by them. Thus, by the terms of the contract
between the parties, Dr. Wang acknowledged and agreed to the following in return
for clinical privileges at Ochsner:
1) He would abide by the Bylaws and Policies, and other requirements
of the Medical Staff and the Hospital. Bylaws art. 3.4(D).
2) He would participate in peer review, performance improvement,
risk management, case management, and other review and
improvement activities as requested. Bylaws art. 3.4(G).
3) He was subject to review by the Medical Staff and his performance
could be evaluated whenever the MEC deemed it necessary. Bylaws
art. 3.4(J).
4) He was subject to Ochsner’s peer review process, a procedure
specifically designed to address issues related to an individual’s
clinical practice and/or professional conduct and to resolve in a
collegial manner all questions raised through the voluntary and
responsive action of the individual involved. Bylaws art. 7.1.
5) Intervention efforts by the MLC were part of Ochsner’s
professional and peer review activities. Bylaws art. 7.1 (A).
6) Most specifically, Ochsner intervention efforts were designed to
review and follow up on questions raised about the clinical practice
and/or conduct of its staff members through peer counseling,
education and related steps such as advising colleagues of all
applicable policies regarding appropriate behavior through peer
review, monitoring, and letters of guidance to share and provide
relevant information, including any variations from clinical protocols
or guidelines, in order to assist individuals to conform their practice to
appropriate norms. Bylaws art. 7.1(B).
7) Determination of applicable intervention efforts were within the
6
Bylaws of the Medical Staff, Section 3.4 entitled “General Obligations and Conditions for
Medical Staff Appointment/Reappointment” clearly states that “By submitting an application of
reapplication for Staff membership, the applicant signifies agreement to fulfill the following
obligations and conditions”: . . . (D) Abide by these Bylaws and the Policies, and other
requirements of the Medical Staff and the Hospital.”
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discretion of the MLC.
8) The determination as to whether a matter was handled in
accordance with a Policy, such as the Policy on Physician Health or
the Code of Conduct and whether to conduct further review and
determination under the Bylaws was within the discretion of the
MLC. Bylaws art. 7.1 (E).
9) When a serious matter was raised or collegial efforts did not
resolve an issue involving the clinical practice (including the care,
treatment, or management of a patient or patients) of a member of the
Medical Staff, the matter would referred to the MEC to make a
sufficient inquiry as to the credibility of the question. Bylaws art. 7.2.
10) The MEC determined the course of action to follow in matters
involving questions concerning clinical competence and professional
conduct. Bylaws art. 7.3(A).
11) Derogatory comments and inappropriate medical entries
impugning the quality of care being provided at Ochsner, as well as
the refusal to abide by Medical Staff requirements delineated in the
Bylaws and Policies and an unwillingness to work cooperatively and
harmoniously are specific examples of inappropriate conduct subject
to review under Policy 13, the Code of Conduct. Policy 13.2(E), (F),
& (H).
12) Once the MLC determined that an incident of inappropriate
conduct has occurred, its options included (but were not limited to)
sending the practitioner a letter of guidance about the incident and/or
a letter of warning or reprimand, particularly if there have been prior
incidents and a pattern may be developing. Policy 13.5(B)(2) & (4).
13) It was within the discretion of the MLC to continue to utilize the
steps outlined in Policy 13 if there was a reasonable likelihood that
such action would resolve the concerns but at any point the MLC
could refer the matter to the MEC. Policy 13.5(E) & 13.6(A).
14) It was within the discretion of the MEC to issue a letter of
warning or reprimand; require a behavior modification course; impose
a “personal” code of conduct on the practitioner making continued
appointment and clinical privileges contingent on the practitioner’s
adherence to the prescribed code of conduct; and to suspend the
practitioner’s clinical privileges for less than 30 days. The imposition
of any of these actions does not entitle the practitioner to a hearing or
an appeal. Policy 13.6(B)(3), (4), (5), & (6).
15) Finally, the Conditions of Reappointment Application signed by
Dr. Wang in submitting his 2015 re-application clearly states that by
re-applying for clinical privileges, he extended absolute immunity to
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Ochsner, agreed not to sue, and released from any and all liability
Ochsner, its medical staff, and appropriate third parties for actions
taken towards him. Conditions of Reappointment Application Section
B(1).
In his reply brief and response to Ochsner’s cross-motion, Dr. Wang
acknowledges his contract with Ochsner consists of the documents related to his
re-application, namely the Bylaws and Policy 13. Inexplicably, however, he
continues to insist that Ochsner lacked a factual basis for its actions and that a
hearing was required. As the above summary of the pertinent contract provisions
indicates, Dr. Wang’s clinical privileges at Ochsner were just that, privileges
granted subject to his adherence to Ochsner rules and policies, not a protected
entitlement subject to constitutional due process rights.
Dr. Wang does not dispute that he advocated non-surgical treatment of
appendicitis for an Ochsner patient, that the patient complained and sought a
second opinion, that he was advised by the MEC and MLC that non-surgical
treatment of appendicitis was not acceptable at Ochsner, that he continued to
pursue non-surgical treatment with a subsequent Ochsner patient despite specific
instructions that this was contrary to Ochsner policy, that he received the letter
advising him of imposition of a 5-day suspension with a personal professional
conduct plan and a deadline to return a signed copy of the letter as
acknowledgment of his agreement to the conduct plan for maintenance of his
clinical privileges, and that he failed to timely comply with this mandate. Viewing
these undisputed facts in light of the contract between the parties, Ochsner is
entitled to summary judgment on Dr. Wang’s breach of contract claim as a matter
of law. Accordingly, the district court did not err in denying Dr. Wang’s motion
and granting summary judgment in favor of Ochsner on the breach of contract
10
claim.
The remaining claims in Dr. Wang’s petition against Ochsner are as follows:
Ochsner negligently misrepresented that it was authorized to terminate his
privileges; Ochsner tortuously interfered with Dr. Wang’s business relations by
terminating his clinical privileges; Ochsner violated LUTPA by misrepresenting to
his patients how he lost his privileges (Ochsner purportedly told Dr. Wang’s
patients that he retired rather than that his privileges were terminated for failing to
adhere to Ochsner rules and policies; Dr. Wang claims this is actionable because
he did not retire); and Ochsner should be compelled to remove the suspension and
revocation of Dr. Wang’s privileges from its files. All of these claims flow from
Dr. Wang’s breach of contract claim and are within the broad immunity granted by
Dr. Wang to Ochsner. In his motion for partial summary judgment on the breach
of contract claim, Dr. Wang argued that Ochsner’s contractual-waiver defense was
invalid because Ochsner maliciously breached its contract with him. In its cross-
motion for partial summary judgment on the breach of contract claim, Ochsner
addressed the substantive issue – its compliance with the contract between the
parties – and the district court granted summary judgment in favor of Ochsner on
that issue, denying Dr. Wang’s motion on the breach of contract claim, as well as
his motion on Ochsner’s affirmative contractual-defense. Because there was no
breach of contract by Ochsner, much less a vicious one, the broad contractual
immunity granted by Dr. Wang to Ochsner is valid.
Accordingly, after de novo review of the motions for summary judgment
between Ochsner and Dr. Wang, we find no genuine issue of material fact exists
between the parties and Ochsner is entitled to summary judgment and dismissal of
Dr. Wang’s claims as a matter of law.
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Dr. Wang’s Claims against Dr. Boudreaux
In his petition for damages, Dr. Wang also named his colleague, Dr.
Boudreaux, as a defendant, alleging that Dr. Boudreaux acted fraudulently in
concert with others to divert his patients by misrepresenting his availability and in
violation of LUPTA. Specifically, Dr. Wang alleges that Dr. Boudreaux, with the
aid of a Ochsner staff member, was responsible for steering patients from Dr.
Wang to himself and this resulted in a decrease in the number of patients Dr. Wang
treated and, concomitantly, in his income.
Applicable Law
“Fraud is a misrepresentation or a suppression of the truth made with the
intention to either obtain an unjust advantage for one party or to cause a loss or
inconvenience to the other.” La. Civ. Code art. 1953. “The two essential elements
of fraud are the intent to defraud or gain and unfair advantage and actual or
probable damage.” Dutton & Vaughan, Inc. Spurney, (La. App. 4th Cir. 1992),
600 2d 1992, 698. Fraud cannot be predicated on negligence, no matter how gross;
fraudulent intent, which constitutes the intent to deceive, is a necessary element of
fraud. Whitehead v. American Coachworks, Inc. 2002-0027, p. 6 (La. App. 1 Cir.
12/20/02), 837 So.2d 678, 682.
LUTPA makes “unfair methods of competition and unfair or deceptive acts
or practices in the conduct of any trade or commerce” unlawful. La. Rev. Stat.
51:1405. “A practice is unfair when it offends established public policy and when
the practice is unethical, oppressive, unscrupulous or substantially injurious.”
NOLA 180 v. Treasure Chest Casino, LLC, 2011-853, p. 5 (La. App. 5 Cir.
3/27/12), 91 So.3d 446, 457 (citations and internal quotations omitted).
Traditionally, causes of action under LUPTA are limited to consumers and
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business competitors. Id., “[C]ourts have repeatedly held that, under this statute,
the plaintiff must show the alleged conduct offends established public policy and . .
. is immoral, unethical, oppressive, unscrupulous, or substantially injurious.”
Cheramie Services, Inc. v. Shell Deepwater Production, Inc., 2009-1633, p. 10 (La.
4/23/10), 35 So.3d 1053, 1059 (citation and internal quotations omitted).
Discussion
It is undisputed that Dr. Wang and Dr. Boudreaux were both neuroendocrine
cancer specialists on the LSU faculty with clinical privileges at Ochsner. Prior to
2013, Dr. Wang’s compensation was based on seniority and the number of
surgeries (“RVUs”) he performed but, in 2013, he entered into a revenue sharing
agreement with Dr. Boudreaux wherein they shared all surgical fees, as well as
clinical call and evaluation fees.
In his motion for summary judgment, Dr. Boudreaux points out that Dr.
Wang will be unable to produce evidence at trial to support his allegations of fraud
or of any effort to steer his patients towards Dr. Boudreaux. In support of his
motion for summary judgment, Dr. Boudreaux submits, in pertinent part, the
following deposition testimony:
1) Dr. Wang conceded that Dr. Boudreaux did not want Dr. Wang to
leave because “[w]e only have two surgeons on the service” and, if
one left, the other would be on call every day and night; in addition,
Dr. Wang conceded this operational strategy prevented internal
competition and there was no benefit to Dr. Boudreaux to have more
patients than Dr. Wang.
2) Dr. Wang conceded he only scheduled one half day per week to see
patients at the clinic; Dr. Boudreaux had four clinic days per week for
seeing patients. Dr. Wang did not schedule surgeries before 9:30 am;
Dr. Boudreaux began his surgery schedule at 7:30 am.
2) Dr. Wang stated that in the 2014-2016 period, his RVUs dropped
(Dr. Wang performed 87, 86, and 25 surgical procedures; Dr.
Boudreaux performed 255, 22, and 206 in the same period but,
13
because of the agreement with Dr. Boudreaux, their incomes remained
comparable (Dr. Wang’s compensation from July 1, 2015 to June 30,
2016, was $362,010; Dr. Boudreaux’s was $362,677).
(3) Dr. Wang stated that his 2016 employment contract with LSU
required clinical privileges at Ochsner, Touro Infirmary, or University
Medical Center and that he retired from LSU in December 2016; he
did not have clinical privileges at any of these hospitals between
losing his privileges at Ochsner and retiring from LSU. Dr. Wang
testified that he began working for Baylor on January 8, 2018, and
received over $400,000 in compensation for that year.
4) Dr. Wang conceded that it was the policy of the Neuroendocrine
Clinic that patients were first seen by the Director of the clinic or
another doctor and then assigned to a surgeon; Dr. Boudreaux was not
involved in the process.
5) Dr. Wang’s witness, Ann Porter (a nurse at the Neuroendocrine
Clinic) testified by deposition that the new patient protocol required
initial screening and then assignment to a surgeon on a rotational
basis; no changes were made to the surgical schedule once it was
made.
6) Although Dr. Wang alleged that his patients were steered to Dr.
Boudreaux by providing misleading information about his retirement
from LSU, he was unable to provide specific information, stating that
he thought one of his patients was told in the “late part of – of 2016, I
believe” that he had retired from LSU; Dr. Wang retired in December
2016.
In response, Dr. Wang argues that he has provided sufficient evidence of
loss to support his LUPTA claim. However, Dr. Wang’s only evidence submitted
in support of this is to point to Dr. Boudreaux’s deposition testimony wherein Dr.
Boudreaux concedes that his income increased after Dr. Wang left Ochsner. Dr.
Wang also alleges that Dr. Boudreaux had an inappropriate relationship with an
Ochsner nurse who, based on this relationship, misled Dr. Wang’s patients as to his
availability after Dr. Wang left Ochsner. As evidence of this, Dr. Wang points to
emails from the staff member who, in response to a query from the Ochsner CEO,
states that after Dr. Wang left Ochsner her staff had been instructed to inform
patients that Dr. Wang was not available and, if patients “pushed” the issue, they
14
were advised to tell them that “we do not know” of his availability and, ultimately,
to offer them the opportunity to see other physicians. Dr. Wang points out in his
brief, however, that the staff member “further confirmed that this misleading
message to patients [the claims that Dr. Wang was not available] came from the
administration.”
Thus, the only evidence Dr. Wang offers to support his contentions of Dr.
Boudreaux’s purported fraud and LUPTA violation are that Dr. Boudreaux’s
income increased once he became the only endocrine surgical specialist at the
clinic after Dr. Wang lost his Ochsner clinical privileges (thereby invalidating the
revenue sharing agreement that Dr. Boudreaux had entered into so that he was not
constantly on call); and that the Ochsner administration instructed its staff to
characterize Dr. Wang’s absence as being unavailable rather than, presumably,
explaining the circumstances of Dr. Wang’s loss of clinical privileges. Notably,
when asked for specifics as to his allegations that Ochsner misrepresented his
availability, Dr. Wang could only reference a wife of a patient who he thought had
been told he retired in December 2016.
Dr. Wang did, in fact, retire from LSU in December 2016. Dr. Wang does
not present any evidence that he was “available” to his patients after he left
Ochsner or that he provided the particulars of his availability to Ochsner for
disbursement. Moreover, in light of his lack of clinical privileges in the interim
between leaving Ochsner and retiring from LSU (his application for privileges at
UMC and Touro were withdrawn when he retired from LSU, indicating that
neither application had been accepted), it is difficult to imagine a scenario in which
Dr. Wang was “available” in any practical sense to patients. Finally, Dr. Wang has
failed to show any economic damages to support his LUPTA claims; while he had
15
clinical privileges at Ochsner, his income was comparable to that of Dr.
Boudreaux; his loss of income due to the lack of clinical privileges (presumably
required for any kind of surgery) is due to his own actions and not attributable to
Dr. Boudreaux; and by his own admission, his income increased with his new
position at Baylor which, presumably, was accompanied with the necessary
clinical privileges.
Accordingly, after de novo review of Dr. Boudreaux’s motion for summary
judgment, we find that, as Dr. Boudreaux points out, Dr. Wang cannot meet his
burden of proof at trial. As previously discussed, Dr. Wang’s loss of clinical
privileges at Ochsner was based on his own decisions and not attributable to Dr.
Boudreaux. As Dr. Wang conceded, there was no benefit in Dr. Boudreaux
gaining more patients than Dr. Wang as the income remained evenly divided
whether or not the surgeries were equitably distributed. Similarly, Dr. Wang
submits evidence clearly indicating that the Ochsner staff responses to Dr. Wang’s
patients regarding Dr. Wang’s availability are not attributable to Dr. Boudreaux.
Accordingly, Dr. Boudreaux is entitled to summary judgment as a matter of law.
Conclusion
The judgments of the district court are affirmed.
AFFIRMED
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