Paul G. Kinnard, M.D. v. United Regional Health Care System and Sumi King, M.D.

COURT

OF APPEALS

SECOND

DISTRICT OF TEXAS

FORT

WORTH

NO.

2-05-128-CV

PAUL G. KINNARD, M.D. APPELLANT

V.

UNITED REGIONAL HEALTH CARE SYSTEM APPELLEES

AND SUMI KING, M.D.

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FROM THE 78TH

DISTRICT COURT OF WICHITA COUNTY

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OPINION

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Introduction

Paul G. Kinnard, M.D. appeals from the trial

court = s order

granting a take nothing summary judgment on his defamation and tortious

interference claims against United Regional Health Care System and Sumi King,

M.D. (appellees). We affirm.

Background

Dr. Paul Kinnard was a medical practitioner of

obstetrics and gynecology and a member of the medical staff of United Regional

from 1979 through February 2000. He

retired at the age of seventy-one and voluntarily resigned his staff privileges

in late February 2000. More than two

years later, he reapplied for staff privileges at United Regional, but his

reapplication was denied based on his failure to demonstrate that he currently

possessed the clinical competence required of medical staff members under United

Regional = s

medical staff bylaws.

Dr. Kinnard requested that the denial of his

reapplication be reviewed by a peer review committee. At the peer review hearing, a number of

witnesses testified in support of United Regional = s

adverse recommendation, including Dr. Sumi King, who was then chair of United

Regional = s

Obstetrics Department. During the hearing, Dr. King testified that prior to Dr. Kinnard = s

retirement, he did not have current clinical competence; that patient care

would suffer if he were granted privileges at the hospital; that he did not

have sufficient intellectual or judgment skills for practicing obstetrics and

gynecology; and that he did not have sufficient physical or motor skills to

practice safely.

Based on Dr. King = s

testimony, the committee affirmed the denial of privileges to Dr. Kinnard. An appellate review committee affirmed the

denial of his privileges, and on April 28, 2003, a final, unappealable decision

denying his application for privileges was issued.

Dr. Kinnard filed this lawsuit against appellees

in September 2003, alleging that appellees defamed him and tortiously

interfered with existing contracts and prospective business relationships with

his patients and various insurance companies.

After the trial court-ordered discovery period expired, appellees filed

a motion for summary judgment on the following traditional and no-evidence

grounds: (1) Dr. Kinnard = s claims for defamation and

tortious interference seek recovery for losses resulting from the denial of Dr.

Kinnard = s staff

privileges, for which he cannot recover under Texas law; (2) Dr. Kinnard = s

defamation claims are barred by statutory immunity; and (3) Dr. Kinnard

presented no evidence to support the malice element of defamation and tortious

interference claims. The trial court

granted appellees = motion for summary judgment

without specifying the grounds for its ruling.

Standards of Review

Although when both no-evidence and traditional

motions for summary judgment are filed we usually address the no-evidence

motion first, [1]

here we will address the propriety of granting the traditional motion first

because it is dispositive of Dr. Kinnard = s

claims. When reviewing a summary

judgment, we take as true all evidence favorable to the nonmovant, and we

indulge every reasonable inference and resolve any doubts in the nonmovant's

favor. [2]

Evidence that favors the movant = s

position will not be considered unless it is uncontradicted. [3]

Summary judgment will be affirmed only if the

record establishes that the movant has conclusively proved all essential

elements of the movant = s cause of action or defense as

a matter of law. [4] Once the defendant produces sufficient

evidence to establish the right to summary judgment, the burden shifts to the

plaintiff to come forward with competent controverting evidence raising a

genuine issue of material fact with regard to the element challenged by the

defendant. [5]

Where, as here, the trial court = s order

granting summary judgment does not specify the ground or grounds relied on for

its ruling, the summary judgment will be affirmed on appeal if any of the

grounds stated in the motion is meritorious. [6]

Immunity

Assuming without deciding that Dr. Kinnard has

alleged valid claims for defamation and tortious business interference against

appellees, [7]

the claims are barred by qualified immunity.

Section 160.010 of the Texas Occupations Code states, in pertinent part:

(b) A

cause of action does not accrue against a member, agent, or employee of a

medical peer review committee or against a health care entity from any act,

statement, determination or recommendation made, or act reported, without

malice, in the course of medical peer review (emphasis supplied).

(c) A

person, medical peer review committee, or health care entity that, without

malice , participates in the medical peer review or furnishes records,

information, or assistance to a medical peer review committee or the board is

immune from any civil liability arising from that act (emphasis supplied). [8]

These statutory immunity provisions protect both actions or statements

taken in the course of peer review and the impact or effect of those actions. [9]

In this case, appellees were engaged in a

credentialing process, which A inherently

requires peer review. @ [10] As a

result, under section 160.010 of the code, appellees are immune from liability

for any cause of action arising from such activity so long as they acted

without malice.

A Malice @ has

been defined as A a specific intent . . . to cause

substantial injury or harm to the claimant. @ [11] Thus, to affirm summary judgment, we must

determine that appellees had no specific intent to cause Dr. Kinnard

substantial harm by their conduct as a matter of law.

To support their qualified immunity defense,

appellees submitted affidavits from members of United Regional = s Board

of Directors, the peer review committee, and the appellate review

committee. Each affidavit states, among

other things, that

$

no information was ever exchanged during the peer review process that

was known to be false,

$

each participant in the peer review process believed, in good faith,

that the information provided by him or her was true,

$

each peer review action was taken in the reasonable belief that it was

in furtherance of quality health care,

$

each peer review action taken with regard to Dr. Kinnard was warranted

by the facts known about him, after reasonable efforts to obtain such facts,

$

no actions were taken during the peer review process with the specific

intent to harm Dr. Kinnard, and

no actions were taken

during the peer review process with actual awareness of an extreme degree of

risk to Dr. Kinnard or a conscious indifference with Dr. Kinnard = s welfare.

These facts are uncontroverted and establish that appellees = actions

and determinations made during the medical peer review process were made

without malice. [12]

Nevertheless, Dr. Kinnard asserts a fact issue

exists on the issue of malice because he presented evidence that his

application was not reviewed by anyone other than Dr. King, that Dr. King

admitted she had not worked with Dr. Kinnard or watched him perform surgery,

and that Dr. King had never reviewed Dr. Kinnard = s

patient files or spoken to any of his patients.

According to Dr. Kinnard, this evidence proves that appellees acted with

malice because they did not conduct an adequate investigation and had ulterior

motives for denying his privileges. We

disagree. To controvert appellees

affidavits and raise a fact question on the issue of malice, Dr. Kinnard was

required to present evidence that appellees had a specific intent to cause

substantial injury or harm to him. Mere

evidence that appellees did not conduct an adequate investigation and had

ulterior motives is not sufficient to establish such an intent. [13]

Because appellees =

affidavits conclusively prove that they acted without malice, Dr. Kinnard = s claims

are barred by qualified immunity as a matter of law.

Conclusion

For the foregoing reasons, we hold that the trial

court did not err by granting appellees =

traditional motion for summary judgment.

We overrule Dr. Kinnard = s issue

and affirm the trial court = s

judgment.

JOHN CAYCE

CHIEF JUSTICE

PANEL A: CAYCE,

C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED:

May 11, 2006

[1] See Ford Motor Co. v.

Ridgway, 135

S.W.3d 598, 600 (Tex. 2004).

[2] Valence Operating Co. v.

Dorsett ,

164 S.W.3d 656, 661 (Tex. 2005).

[3] Great Am. Reserve Ins.

Co. v. San Antonio Plumbing Supply Co. , 391 S.W.2d 41, 47 (Tex. 1965).

[4] City of Houston v. Clear

Creek Basin Auth. , 589 S.W.2d 671, 678 (Tex. 1979).

[5] Centeq Realty, Inc. v.

Siegler ,

899 S.W.2d 195, 197 (Tex. 1995).

[6] Provident Life &

Accident Ins. Co. v. Knott , 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe ,

915 S.W.2d 471, 473 (Tex. 1995); Harwell v. State Farm Mut. Auto. Ins. Co.,

896 S.W.2d 170, 173 (Tex. 1995).

[7] Under Texas law, a

physician is not entitled to recover against a private hospital or its staff

for denying or terminating the physician = s staff privileges. Winston v. Am. Med. Int = l, Inc. , 930 S.W.2d 945, 956

(Tex. App. C Houston [1st Dist.] 1996,

writ denied); see also Dallas County Med. Soc = y v. Ubinas-Brache , 68 S.W.3d 31, 42 (Tex.

App. C Dallas 2001, pet.

denied), cert. denied , 535 U.S. 970 (2002); Hodges v. Arlington

Neuropsychiatric Ctr., Inc. , 628 S.W.2d 536, 538 (Tex. App. C Fort Worth 1982, writ ref = d n.r.e.); Charter

Med. Corp. v. Miller , 605 S.W.2d 943, 951-52 (Tex. App. C Dallas 1980, writ ref = d n.r.e.) (all

recognizing that a doctor has no cause of action against a private hospital for

the denial or termination of staff privileges).

Courts have repeatedly refused to allow claims for the loss of staff privileges

labeled as a defamation, breach of contract claim, or other common law torts . See, e.g., Hodges , 628 S.W.2d at 537-38

(rejecting all of doctor = s claims arising from the

wrongful termination of his staff privileges); Charter Med. Corp. , 605

S.W.2d at 951-52 (rejecting doctor = s claims for conspiracy, slander, libel,

violation of due process, and deceptive trade practices). But see Poliner v. Tex. Health Sys. ,

No. 3-CV-1007-P, 2003 WL 22255677 , at *16-17 (N.D. Tex. Sept. 30, 2003) (mem.

op.) (denying a hospital = s summary judgment motion

as to a doctor = s defamation claim);

Stephan v. Baylor Med. Ctr. , 20 S.W.3d 880, 886-87 (Tex. App. C Dallas 2000, no pet.)

(reversing a summary judgment granted in favor of a hospital on the doctor = s defamation

claims). Although Dr. Kinnard has

labeled his causes of action as defamation and tortious interference, they all

appear to stem from the denial of his physician staff privileges. However, we do not reach this question

because of our holding that appellees are protected by qualified immunity.

[8] Tex.

Occ. Code Ann. ' 160.010 ( Vernon Supp. 2005)

(emphasis supplied).

[9] St. Luke = s Episcopal Hosp. v.

Agbor ,

952 S.W.2d 503, 505 (Tex. 1997); Ubinas-Brache , 68 S.W.3d at 40 .

[10] See Ubinas-Brache , 68 S.W.3d at 40 .

[11] See Romero v. KPH

Consolidation, Inc. , 166 S.W.3d 212 , 214 n.2 (Tex. 2005) (citing Tex. Civ. Prac. & Rem. Code Ann. ' 41.001(7) (Vernon

2004-05) and the revised A malice @ definition, which

applies to all actions seeking recovery of A damages @ ).

[12] See Roe v. Walls Regional

Hosp., Inc. ,

21 S.W.3d 647, 654 (Tex. App. C Waco 2000, no pet.) (holding affidavits

containing such language were sufficient, if uncontroverted, to establish that

a hospital acted without malice); see also Maewal v. Adventist Health

Sys./Sunbelt, Inc. , 868 S.W.2d 886, 893 (Tex. App. C Fort Worth 1993, writ

denied) (noting that a presumption of absence of malice in the context of

medical peer review committee actions is sufficient to sustain summary judgment

in the absence of contrary evidence).

[13] See Romero , 166 S.W.3d at 214 n.2

(stating what is required to prove malice); see also Poliner, 2003 WL

22255677 , at *15 (stating that evidence of inadequate investigation coupled

with ulterior motives is sufficient to raise a fact issue on whether a

qualified privilege exists) (citing Duffy v. Leading Edge Prod., Inc .,

44 F.3d 308, 315 (5th Cir. 1995)).