Brian Dean Do v. St Mary's of Michigan

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

BRIAN DEAN, D.O., UNPUBLISHED

January 23, 2020

Plaintiff/Counterdefendant-

Appellant,

V Nos. 345213; 345374

Saginaw Circuit Court

ST. MARY’S OF MICHIGAN, LC No. 17-033584-CK

Defendant/Counterplaintiff-

Appellee.

Before: BOONSTRA, P.J., and TUKEL and LETICA, JJ.

PER CURIAM.

Plaintiff, a physician formerly employed by defendant hospital, appeals1as of right the

trial court’s orders granting summary disposition in favor of defendant and denying in part his

motion for reconsideration. We affirm.

I. FACTS

The trial court’s order granting summary disposition includes a summary of some of the

facts underlying this case:

Around January 14, 2016, Plaintiff was employed by Defendant as an

emergency room physician. During the course of Plaintiff’s employment,

Plaintiff notified Defendant of activities the Plaintiff believed to be alleged

malpractice and that he was not “liked” which he claimed exhibited an alleged

animosity towards him. On July 19, 2016, Plaintiff was notified of termination of

1

We note that defendant’s challenge to our jurisdiction is misplaced because whether plaintiff

raised an issue that was decided below bears on issue preservation and the applicable standard of

review, not on our appellate jurisdiction.

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his employment for cause. The termination letter stated Plaintiff violated Sections

2.6.3, 2.6.4, and 3.2.3 of his employment agreement with Defendant and that he

breached several of the bylaws, Plaintiff also alleges that defamatory letters

started after he refused to repay his “sign-on” bonus.

After the termination, Plaintiff states that Defendant continued to retaliate

against him by making defamatory statements to various potential employers.

Plaintiff also claims that Defendant falsely related information to two hospitals,

stated that Plaintiff violated federal and Michigan statutes, failed to abide by the

bylaws, rules, and regulations; and lastly, that Plaintiff failed to perform his duties

in accordance with the standard of care.

When defendant terminated plaintiff’s employment and staff privileges before expiration

of the contractual term, plaintiff commenced this action, claiming breach of contract, breach of

bylaws, defamation, and violation of public policy. Defendant filed a counterclaim for

repayment of plaintiff’s signing bonus, alleging breach of contract, unjust enrichment, claim and

delivery, and common-law and statutory conversion. After both parties filed cross-motions for

summary disposition, the trial court granted defendant’s motion and ordered plaintiff to repay his

full signing bonus. Plaintiff filed a motion for reconsideration that the trial court granted in part,

reducing the amount he was required to pay to defendant, but otherwise denied. This appeal

follows.

II. EVIDENTIARY ISSUES

Plaintiff argues that the trial court erred by denying his discovery request for certain

documents defendant resisted disclosing as peer-review materials and his request to submit an

additional deposition after the cross-motions for summary disposition were argued and decided.

We review a trial court’s evidentiary rulings for an abuse of discretion. Price v Long Realty, Inc,

199 Mich App 461, 466; 502 NW2d 337 (1993). “An abuse of discretion occurs when the trial

court’s decision is outside the range of reasonable and principled outcomes.” Smith v Khouri,

481 Mich 519, 526; 751 NW2d 472 (2008).

A. PEER-REVIEW MATERIALS

On appeal, plaintiff provides little information about the documents at issue. He asserts

that they were created after he was terminated and that all but one of the documents’ authors

“were not part of a peer review committee.” Plaintiff does, however, refer to his request for

production below, in which he described many documents and referred to an earlier request for

“all peer review materials related to Plaintiff.” In responding to the motion, defendant noted that

it had generally complied with plaintiff’s discovery requests, but not the one for peer-review

materials because those materials were absolutely privileged. The trial court reviewed the

documents at issue in camera and announced on the record its finding that they were peer-review

materials and thus privileged from disclosure.

We review “de novo as a question of law the applicability of a privilege.” Denhof v

Challa, 311 Mich App 499, 510; 876 NW2d 266 (2015) (quotation marks omitted). We review

any attendant factual findings for clear error. MCR 2.613(C).

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MCL 333.21513(d) requires the “owner, operator, and governing body” of a licensed

hospital to organize its “medical staff to enable an effective review of the professional practice in

the hospital for the purpose of reducing morbidity and mortality and improving the care provided

in the hospital for patients.” MCL 333.20175(8) states that “[t]he records, data, and knowledge

collected for or by individuals or committees assigned a professional review function in a health

facility or agency . . . are confidential, shall be used only for the purposes provided in this article,

are not public records, and are not subject to court subpoena.”

In Krusac v Covenant Med Ctr, 497 Mich 251, 257-263; 865 NW2d 908 (2015), our

Supreme Court recognized that the statutory privilege protecting peer-review materials extended

to administrative and criminal investigations, and overruled extant caselaw to extend coverage to

objective facts that may be presented within peer-review materials.

Plaintiff cites Krusac, 497 Mich at 260, for the proposition that only records that are

created by peer-review committees are protected. However, although much of the discussion in

Krusac is indeed directed toward “peer review committees,” the Supreme Court also clarified

that, for purposes of that case, it would “use ‘peer review committee’ to refer generally to

‘individuals or committees assigned a professional review function’ under MCL 333.20175(8)

and ‘individuals or committees assigned a review function’ under MCL 333.21515.” Krusac,

497 Mich at 257 n 1 (emphasis added). Thus, plaintiff’s argument, that some of the materials

sought might have been the work product other than of an actual peer-review committee, is

unavailing here.

Plaintiff also asserts that defendant did not apply its own statutorily required bylaws to

his situation and argues that this demonstrates that peer-review operations were not involved.

However, plaintiff does not explain why any given deviation from normal operational policy or

duty would undercut the status of peer-review materials. Further, our Supreme Court in Krusac

rejected any suggestion that any failure of the defendant’s duty “to publish certain information in

the medical record should be deemed a waiver,” on the ground that “deeming the peer review

privilege waived is not among the sanctions provided by the Legislature for violations of §

20175(1).” Id. at 262 n 9.

As noted, the trial court ruled against disclosure of these documents only after examining

them. This action complied with Krusac, in which the Supreme Court noted its approval of the

practice of having the trial court examine requested materials in camera to determine if they are

privileged. Id. at 254-255, 258. But the results of such off-the-record investigation and fact-

finding are not entirely present on the record.

We also decline plaintiff’s request for us to engage in our own in camera review of the

subject documents, as plaintiff’s legal arguments regarding the status of the privileged

documents are meritless. Thus, we affirm the trial court’s determination that the documentation

plaintiff sought here was not subject to disclosure because it was privileged peer-review material.

B. SUPPLEMENTAL EXHIBIT

The trial court entered a scheduling order setting a trial date and stating that motions for

summary disposition “shall be timely filed and heard before the Court no later than 60 days

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before trial.” The trial court heard the parties’ cross-motions for summary disposition four days

before that deadline. Two days later, plaintiff moved to file the transcript of the deposition of

plaintiff’s physician colleague as a supplemental exhibit. Plaintiff’s counsel stated that the

deposition was taken the same day that plaintiff filed his response to defendant’s motion for

summary disposition. Defendant’s counsel objected. The trial court determined that it would not

consider the deposition because “the motion for summary disposition was heard, and that all

documents were to be provided within a certain time period,” but “weren’t provided within a

certain time period.”

In his motion below, plaintiff cited MCR 2.116(G)(1)(a)(iv), which in turn states that “no

additional or supplemental briefs may be filed without leave of the court.” Plaintiff, perhaps

recognizing that this rule refers to briefs, not depositions or other late-offered evidence, cited this

authority for the proposition that courts have the inherent authority to limit and thus allow the

presentation of evidence. However, defendant does not dispute that the trial court had the

discretion to excuse the poor timing and accept the deposition; instead, defendant argues that the

court did not abuse its discretion in declining to do so in this instance. Further, plaintiff does not

suggest that the court was unaware of its ability to exercise its discretion in favor of accepting

the deposition. Even so, plaintiff notes that discovery was still open at the time the deposition

was taken. However, just as specific statutory provisions trump related general ones,2 the trial

court’s specific timing limitations relating to motions for summary disposition covered the

offering of evidence for that purpose, even if discovery remained open for other purposes.

Plaintiff otherwise points out that his counsel below “explained to the Circuit Court that the

transcript was not available at the time of filing of the response to the motion for summary

disposition.” Neither explanation suggests that counsel offered specific reasoning below why

plaintiff could not have timely offered a transcript of a deposition taken in response to a motion

filed 21 days before it was heard—or, at least, asked to delay the hearing for that reason—nor

offers to supply the lack of specific reasoning on appeal.

Plaintiff thus fails to demonstrate that the trial court misunderstood its prerogatives here

and that it misapplied the ordered scheduling particulars. Furthermore, plaintiff makes only

general assertions that the new deposition would have helped him oppose defendant’s motion for

summary disposition. He fails to specify in his motion and supporting brief below or in his

appellate brief, how that testimony would have served that purpose or explain why the trial court

should have regarded it as sufficiently compelling to justify excusing plaintiff’s untimeliness.

We conclude that this lack of argument abandons any claim of error. Houghton v Keller, 256

Mich App 336, 339-340; 662 NW2d 854 (2003) (“An appellant’s failure to properly address the

merits of his assertion of error constitutes abandonment of the issue.”). Alternatively, plaintiff

fails to demonstrate that any error affected the outcome here. Barnett v Hidalgo, 478 Mich 151,

172; 732 NW2d 472 (2007) (stating that reversal was not required over a preserved

nonconstitutional error where the appellant “failed to show that it was more probable than not

that the alleged error was outcome determinative”).

2

See Gebhardt v O’Rourke, 444 Mich 535, 542-543; 510 NW2d 900 (1994).

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For these reasons, we reject this claim of error.

III. PUBLIC-POLICY CLAIM

Plaintiff argues that the trial court erred by dismissing his public-policy claim as

preempted by the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq.

We review a trial court’s decision on a motion for summary disposition de novo. Ford

Credit Int’l, Inc v Dep’t of Treasury, 270 Mich App 530, 534; 716 NW2d 593 (2006). “A

motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim by

the pleadings alone. This Court reviews de novo a trial court’s decision regarding a motion for

summary disposition under MCR 2.116(C)(8) to determine whether the claim is so clearly

unenforceable as a matter of law that no factual development could establish the claim and

justify recovery.” Smith v Stolberg, 231 Mich App 256, 258; 586 NW2d 103 (1998). In

reviewing a trial court’s decision on a (C)(8) motion, we accept as true all factual allegations

supporting the claim and reasonable inferences that may be drawn from them. Id.

At-will employment relationships may generally be terminated at any time, with or

without cause, meaning for any reason or no reason. Suchodolski v Mich Consol Gas Co, 412

Mich 692, 694-695; 316 NW2d 710 (1982). “However, an exception has been recognized to that

rule, based on the principle that some grounds for discharging an employee are so contrary to

public policy as to be actionable.” Id. at 695. Our Supreme Court has noted that such public-

policy grounds for actionable wrongful termination are usually set forth in statutory prohibitions

of adverse employment actions against “employees who act in accordance with a statutory right

or duty,” but also recognized where the adverse action is in response to an employee’s “refusal to

violate a law in the course of employment,” or “exercise of a right conferred by a well-

established legislative enactment.” Id. at 695-696.

We have held that, in light of our Supreme Court’s reliance on legislative enactments in

recognizing public-policy bases for wrongful termination actions, “where a statute confers upon

a victim of retaliation the right to sue, that person may not also assert a claim of discharge in

violation of public policy . . . .” Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 485; 516

NW2d 102 (1994).

The WPA prohibits retaliatory employment action against an employee “because the

employee . . . reports or is about to report . . . a violation or a suspected violation of a law or

regulation or rule promulgated pursuant to law of this state, a political subdivision of this state,

or the United States to a public body, unless the employee knows that the report is false . . . .”

MCL 15.362. “It is the general rule in this state that when a statute creates a new right or

imposes a new duty having no counterpart in the common law, the remedies provided in the

statute for its violation are exclusive and not cumulative.” Shuttleworth v Riverside Osteopathic

Hosp, 191 Mich App 25, 27; 477 NW2d 453 (1991). “[N]o common-law counterpart existed

before passage of the WPA and . . . , therefore, the act is the exclusive remedy for an employee

whose employment is terminated in retaliation for reporting an employer’s violation of the law.

Id. (citation omitted).

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“The WPA protects an employee who reports or is about to report a violation or

suspected violation of a law or regulation to a public body.” Brown v Mayor of Detroit, 478

Mich 589, 594; 734 NW2d 514 (2007). For this purpose, MCL 15.361(d) broadly defines

“public body” to cover various officials or agencies of state or local government, with its

subparagraph (iv) adding “[a]ny other body which is created by state or local authority or which

is primarily funded by or through state or local authority, or any member or employee of that

body.”

Plaintiff did not invoke the WPA below, and maintains on appeal that he does not have

an actionable WPA claim because he does not assert that he reported misconduct to anyone other

than defendant itself. And, as defendant is a private hospital, it is not a public body for purposes

of authorizing a cause of action under the WPA. Instead, plaintiff specifically argues that WPA

preemption does not apply to the specific facts of his case. Defendant responds, not that it

constituted a public body for purposes of the WPA, but instead asserts that all public-policy

claims stemming from allegations of employer retaliation are preempted by the WPA, regardless

if the specific facts would give rise to a remedy under the WPA. Thus, the parties disagree on

whether the WPA preempts only those claims for which the WPA provides a cause of action, or

whether the WPA generally preempts all public-policy based employer retaliation claims,

including those for which the WPA offers no remedy. We agree with defendant.

In Wurtz v Beecher Metro Dist, 495 Mich 242, 248; 848 NW2d 121 (2014), our Supreme

Court noted that the trial court dismissed a public-policy claim on the ground that “the WPA

provided the exclusive avenue of relief,” then concluded that the plaintiff “could not satisfy all of

the WPA’s elements,” while implying no inconsistency in finding that the WPA provided the

exclusive remedy even where the facts did not trigger its applicability. The Court then affirmed

on the ground that “the WPA does not apply when an employer declines to renew a contract

employee’s contract.” Id. at 249. The Court did not suggest that the claim might remain

actionable on public-policy grounds despite the inapplicability of the WPA. Indeed, the Court

stated that “[t]he WPA’s language governs this case without any additional judicial

interpretation” and reiterated that the WPA did not apply to the plaintiff’s status as one seeking

renewal of an employment contract. Id. at 257. The Court’s recognition that the public-policy

claim below was dismissed for failing to trigger the WPA’s protections, coupled with its

assertion that the WPA still governed the matter, indicates that the WPA is the exclusive avenue

for redressing retaliatory employment actions. This is true whether or not the WPA provides a

remedy for the specific forms of, or reasons for, retaliation in a given case.

Accordingly, we affirm the trial court’s dismissal of plaintiff’s public-policy claim.

IV. CONTRACT CLAIM

Plaintiff argues that in granting defendant’s motion for summary disposition the trial

court erred by crediting defendant’s position that it terminated plaintiff for cause. “In reviewing

a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits,

and other relevant documentary evidence of record in the light most favorable to the nonmoving

party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh v

Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004).

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A written Physician Employment Agreement executed in January 2016 governed the

relationship between the parties. Section 3.2.3(a) of the agreement provided that defendant “may

immediately terminate this Agreement” if plaintiff “ceases to satisfy any requirement stated in

Section 2.6.” The latter included the following:

2.6.3 maintain membership in and abide by the bylaws, rules, and

regulations of the Medical Staff of St. Mary’s as are necessary for

performance of Physician’s services;

2.6.4 abide by all applicable state and federal statutes and regulations

and standards of accrediting and certifying bodies, and cannons of

professional ethics, as each may be amended . . . .

Section 3.3.2 provided that should the agreement be terminated, for any reason, “Physician’s

medical staff privileges shall automatically terminate without the right of appeal.”

Section 4.2 provided for a signing bonus:

Upon Physician becoming fully credentialed with St. Mary’s and St. Mary’s’

primary third party payors (as determined in the sole discretion of St. Mary’s) and

full execution of this Agreement, St. Mary’s shall pay Physician a signing bonus

of Thirty Thousand and 00/100 Dollars ($30,000.00) (“Signing Bonus”).

Physician agrees that should he or she fail to fulfill any of her obligations under

this Agreement, and St. Mary’s terminates this Agreement with cause pursuant to

Section 3.2.2 or Section 3.2.3 during the first twelve (12) months of this

Agreement, or Physician voluntarily terminates this Agreement without cause

during the first twelve (12) months of this Agreement, the Signing Bonus amounts

received by Physician shall be repaid to St. Mary’s in full within thirty (30) days

of terminating h[is] employment; provided, however, that 1/12th of the Signing

Bonus shall be deemed forgiven for each full month that Physician performs

duties and fulfills her obligations under this Agreement (e.g., if Physician is

employed by St. Mary’s for six months, one-half of the Signing Bonus repayment

obligation is forgiven). . . .

Paragraph 11 spelled out that the agreement “constitutes the entire agreement of the parties

concerning the subject matter hereof and supersedes all previous representations, understandings

and agreements of the parties, whether oral or written, concerning the same,” and “may only be

modified, altered, amended, revised or extended by a written document signed by the parties

herein.”

The trial court explained its decision on the contract claims as follows:

[T]he contract provided to Plaintiff . . . stated within that Defendant could

terminate Plaintiff for two reasons; first being without cause by providing

Plaintiff with 90 days advanced written notice or second, that Plaintiff could be

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terminated immediately if Plaintiff failed to satisfy any requirements stated in

Section 2.6 of the agreement.

Here, Plaintiff did not need 90 days’ notice because St. Mary’s had cause

to terminate without giving notice. The cause is justified from the multiple

employees and patients complaints and the treatment Plaintiff was providing to

the patients. Here, Plaintiff doesn’t even contest that multiple claims were filed

against him, that they were investigated and discussed with him. Therefore,

because Plaintiff did violate the contract, Defendant did have cause to terminate

him, even without the 90 days’ notice.

The trial court initially ordered that plaintiff repay the entire $30,000 signing bonus, but,

on plaintiff’s motion for reconsideration, reduced the obligation to $20,000. Plaintiff was thus

held to repay a prorated portion of that bonus. However, he implicitly argues that he should be

allowed to retain the entire bonus on the ground that defendant terminated him without cause.

In wrongful discharge cases, generally the trier of fact decides whether the employee was

discharged for cause. See Toussaint v Blue Cross & Blue Shield, 408 Mich 579, 620-624; 292

NW2d 880 (1980). But where a party moving for summary disposition supports the motion with

documentary evidence, the opposing party may not rest on mere allegations or denials in that

party’s pleadings, but must offer evidence to establish the existence of a genuine issue of

material fact. MCR 2.116(G)(4); see also Reed v Reed, 265 Mich App 131, 141; 693 NW2d 825

(2005). “Circumstantial evidence can be sufficient to establish a genuine issue of material fact,

but mere conjecture or speculation is insufficient.” McNeill-Marks v Midmichigan Med Ctr, 316

Mich App 1, 16; 891 NW2d 528 (2016).

In this case, defendant offered an affidavit from a nurse manager of its emergency

department, in which the latter attested to having personally observed plaintiff insulting and

threatening patients, reporting work he had not performed, and instructing staff without rationale

to send all waiting emergency-room patients home. According to this witness, plaintiff’s

improper interactions with patients twice resulted in the involvement of security personnel. This

witness additionally reported that he once referred plaintiff to a call from defendant’s pharmacy

concerning a patient with a documented allergy to a prescribed medication. Plaintiff “cursorily”

retorted that “he was ‘the doctor’ and did not care about the Pharmacy Department’s concern.”

Plaintiff then “hung the phone up without addressing the concern.”

The director of defendant’s emergency department attested in an affidavit that he had

received several complaints that plaintiff had spoken insultingly to staff and patients and refused

to examine or treat patients needing attention. This witness reported that, upon his personal

follow-up in one case, he concluded that plaintiff had documented conducting a full examination

in a situation where he had not offered an examination or treatment.

Plaintiff asserts that evidence in support of a (C)(10) motion must be substantively

admissible, 1300 LaFayette East Coop, Inc v Savoy, 284 Mich App 522, 525; 773 NW2d 57

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(2009), and that the latter witness offered hearsay. 3 However, we conclude that, to the extent

that defendant provided such information, it was not to prove the truth of the matters asserted,

but rather to explain why its official developed and further investigated concerns about plaintiff.

Moreover, we agree with defendant that the patients’ oral statements that the latter witness

entertained would be excepted from the rules against hearsay as “made for purposes of medical

treatment or medical diagnosis in connection with treatment,” MRE 803(4), and that any written

accounts may qualify as records “kept in the course of a regularly conducted business activity,”

MRE 803(6).

Plaintiff himself acknowledged in his deposition that defendant had to contend with

numerous complaints about him. Although plaintiff has consistently denied the factual bases of

those complaints, and attributed pernicious motives to some of his colleagues, he has offered

nothing beyond these conclusory denials and opinions to rebut defendant’s substantial evidence

implicating him in misconduct. And plaintiff’s opinions concerning his colleagues’ motives do

not rise above mere speculation, given that plaintiff does not suggest or offer any evidence that

defendant responded differently to other employees who had created similar concerns, or that

defendant otherwise did not generally undertake its disciplinary measures with reasonable

consistency.

For these reasons, plaintiff cannot demonstrate that the trial court erred by granting

defendant’s motion for summary disposition on its contract claim.

V. BYLAWS CLAIM

Plaintiff invoked defendant’s Medical Staff Bylaws to claim that defendant denied him

pretermination procedural rights in connection with the complaints against him.

Article VII of the bylaws is headed “CORRECTIVE ACTION,” and sets forth grounds

and procedures for addressing problems for a practitioner’s performance, including for

suspension and termination. Article VIII is headed “HEARING AND APPELLATE REVIEW

PROCEDURE,” and sets forth the avenues through which a practitioner facing adverse action

may respond, including a hearing and internal appellate review. Plaintiff asserts that defendant

failed to abide by the bylaws because it failed to provide him with notice of the particulars

deemed to require corrective action, failed to engage the Medical Executive Committee, failed to

involve an ad hoc committee, and failed to provide plaintiff with a hearing or appellate

opportunities.

Defendant does not assert that all of the procedures set forth in the bylaws were in fact

followed, but emphasizes that the bylaws disclaim their having any contractual significance. In

particular, ¶ 4.6.3 states that “[t]he effect of expiration or other termination of a contract upon a

Practitioner’s Medical Staff membership status and clinical privileges will be governed solely by

3

Hearsay, meaning testimony relating a person’s unsworn, out-of-court assertions offered to

prove the truth of the matter asserted, MRE 801(c), is generally inadmissible, MRE 802, subject

to several exemptions and exceptions as provided by the rules of evidence, MRE 801-805.

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the terms of the Practitioner’s contract with the Medical Center.” Paragraph 4.9 is headed

“BYLAWS NOT A CONTRACT,” and provides as follows:

These Bylaws shall not be deemed as a contract of any kind between the

Governing Body or the Medical Center and the Medical Staff or any individual

member thereof. Applications for, the conditions of, and the duration of

appointment to the Medical Staff or the granting of Clinical Privileges as a

Practitioner or Allied Health Professional shall not be deemed contractual in

nature since the continuance of any such privileges at this Medical Center is based

solely upon a Practitioner’s continued ability to justify the exercise of such

privileges. The Governing Body is obligated to use fundamental fairness in

dealing with Medical Staff members, Allied Health Professionals and applicants

for those positions and may fulfill that obligation by following the procedures

specified in these Bylaws and related documents or any other procedures which

are fair in the circumstances.

The trial court did not recognize any need to determine whether defendant failed to

follow any procedures set forth in its bylaws with regard to any part of plaintiff’s employment,

termination, or hospital privileges, on the ground that the bylaws gave rise to no enforceable

procedural rights. The court’s explanation of its decision to grant defendant summary

disposition of the bylaws claim pertinently stated:

Defendant’s main argument is that the bylaws specifically state within that

these bylaws are not a contract. The contract between Plaintiff and Defendant

was clear and unambiguous[;] . . . it stated that Plaintiff had no right of appeal.

Plaintiff even admits within his deposition that the bylaws specifically state they

are not a contract . . . . Even within the bylaws it states in section 4.9 Bylaws not

a contract . . . .

Also pursuant to the bylaws . . . the effect of the termination of a contract

is governed and subject to the “contract” with the medical center. . . .

. . . The contractual disclaimer at issue in this case . . . clearly evidences

and communicates the employer’s intent not to be bound by the handbook

provisions.

Here Plaintiff’s argument is that enforcing a contractual disclaimer would

be against public policy. . . . The bylaws simply stated that they were not a part of

the contract and Plaintiff acknowledged that.

Therefore, based on case law, this Court finds that the bylaws were not

considered a part of the contract (they defer to the terms of the employment

contract), and therefore Defendant’s motion is granted and Plaintiff’s motion is

denied.

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In reaching its decision, the trial court cited Lytle v Malady (On Rehearing), 458 Mich

153; 579 NW2d 906 (1998). In that case, our Supreme Court held that a “proper cause”

provision in an employee handbook did not overcome the presumption of at-will employment

where the handbook “provided that ‘[t]he contents of this booklet are not intended to establish

. . . any contract between . . . [the employer] and any employee,’ ” and thus “clearly

communicated to employees that the employer did not intend to be bound by the policies stated

in the handbook.” Lytle, 458 Mich at 166 (WEAVER, J., joined by BOYLE and TAYLOR, JJ.), 185-

186 (MALLETT, J., concurring in pertinent part).

Again, ¶ 4.9 of the bylaws states that they “shall not be deemed as a contract of any

kind,” and also that “[t]he Governing Body is obligated to use fundamental fairness . . . and may

fulfill that obligation by following the procedures specified in these Bylaws.” The bylaws’

disclaimer of contract status “of any kind” demonstrates that they have no legal status under any

theory, including incorporation, reliance, or mutuality. The statement that the Governing Body

“may fulfill” its obligation to be fair “by following the procedures specified” (emphasis added)

underscores that the bylaws constitute mere guidelines instead of any kind of mandatory

authority.

In arguing that operation of law grants the bylaws greater legal significance than their

disclaimers of contract status suggests, plaintiff relies on MCL 331.6(2), which states in pertinent

part:

The [hospital] board shall provide for a system of accounts to conform to a

uniform system required by law and for annual auditing of the accounts of the

treasurer by a certified public accountant. . . . The board shall adopt bylaws,

rules, and policies governing the operation and professional work of the hospital

and the eligibility and qualifications of its medical staff. Physicians, nurses,

attendants, employees, patients, and persons approaching or on the premises of

the hospital and furniture, equipment, and other articles used or brought on the

premises shall be subject to the bylaws, rules, and policies as the hospital board

may adopt or authorize to be adopted. The board may deny or revoke staff

membership, or suspend or reduce hospital privileges to a physician who violates

a provision of the medical staff bylaws, rules, and policies.

MCL 333.21513(d), which, as noted above, also requires the “owner, operator, and governing

body” of a licensed hospital to organize its “medical staff to enable an effective review of the

professional practice in the hospital for the purpose of reducing morbidity and mortality and

improving the care provided . . . .”

But plaintiff cites no authority for the proposition that this statutory mandate effectively

grants every person subject to such bylaws a cause of action for a hospital’s failure to strictly

abide by them. Indeed, the only remedy specified in MCL 331.6(2) is a hospital board’s

prerogative to take adverse administrative action against violators; there is no implication that

the referenced “[p]hysicians, nurses, attendants, employees, patients, and persons approaching or

on the premises of the hospital” have a cause of action, in contract or otherwise, if they are

aggrieved by a hospital’s failure to adhere to the bylaws.

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Even so, “[i]t is well settled under Michigan law that an employer’s statement of policy

contained in a manual or handbook can give rise to contractual obligations in certain

circumstances.” Bodnar v St John Providence, Inc, 327 Mich App 203, 213; 933 NW2d 363

(2019), lv pending. But as the Supreme Court stated in Lytle, 458 Mich at 166, the

circumstances bringing about such obligation must constitute the basis for a reasonable

expectation rising to the level of an enforceable promise and this outcome is averted by a

“contractual disclaimer” that “clearly evidences and communicates the employer’s intent not to

be bound by the handbook provisions,” id. at 170.

Plaintiff takes issue with the trial court’s reliance on Lytle, on the grounds that it neither

applied the same bylaws at issue in the present case, nor involved physicians with hospital staff

privileges. However, plaintiff fails to explain how these factual differences render Lytle inapt.

In Toussaint, 408 Mich at 598, our Supreme Court held that an employment contract may

take on a just-cause provision “by express agreement, oral or written, or as a result of an

employee’s legitimate expectations grounded in an employer’s policy statements.” But

Toussaint involved no written disclaimers concerning the legal enforceability of any such

statements or expectations. Plaintiff suggests that the policy statements here at issue should

create enforceable rights even despite such disclaimers, on the ground that the employer in

Toussaint voluntarily set forth the policies at issue. He also argues that the Supreme Court

attached significance to that employer’s expectation of deriving a benefit from doing so, see id.

at 619, in contrast to the legislative mandate at work in this case. But plaintiff presents a

distinction without a difference. Plaintiff offers us no reason to doubt that the Legislature

expected hospitals themselves to be among the beneficiaries of the requirement to set forth

bylaws and policies governing their operations, and, as noted, nothing in the legislation creating

a hospital’s bylaws suggests a private cause of action. See MCL 331.6(2) and 333.21513(d).

Thus, the caselaw establishes that the trial court here correctly determined that the written

statements of policy did not rise to the level of enforceable promises in light of the express

disclaimers of any contractual significance involved with these bylaws.4

VI. DEFAMATION CLAIM

Plaintiff next argues that the trial court erred in dismissing his defamation claim but he

fails to identify any specific document or other communication that he alleges was defamatory or

specify the exact words he takes issue with. The trial court’s rationale for rejecting plaintiff’s

defamation claim indicate that plaintiff complained of unfavorable performance reports that

defendant offered other prospective employers.

Defamation requires proof of “(1) a false and defamatory statement concerning the

plaintiff, (2) an unprivileged communication to a third party, (3) fault amounting at least to

4

Plaintiff cites two nonbinding cases from the Saginaw Circuit Court. We agree with the trial

court that available binding authority resolves this issue and thus consultation of nonbinding

authority is unwarranted.

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negligence on the part of the publisher, and (4) either actionability of the statement irrespective

of special harm (defamation per se) or the existence of special harm caused by publication.”

Mitan v Campbell, 474 Mich 21, 24; 706 NW2d 420 (2005).

In granting defendant summary disposition of plaintiff’s defamation claim, the trial court

did not address the truth of the subject communications or any attendant damages. Instead, the

court decided that defendant was exercising a well-established employer’s privilege in issuing

the relevant communications. The trial court first noted that plaintiff had admitted signing a

document allowing defendant to release information about his employment, which plaintiff does

not dispute.

The trial court then cited Gonyea v Motor Parts Fed Credit Union, 192 Mich App 74, 78-

79; 480 NW2d 297 (1991), in which we recognized that “[a]n employer has the qualified

privilege to defame an employee by making statements to other employees whose duties interest

them in the subject matter,” and recited the elements of the qualified privilege as “(1) good faith,

(2) an interest to be upheld, (3) a statement limited in scope to this purpose, (4) a proper

occasion, and (5) publication in a proper manner and to proper parties only.” The trial court

additionally cited MCL 333.20175(5), which requires “a health facility” to report certain adverse

actions taken against health professionals, and subsection (6), which provides:

Upon request by another health facility or agency seeking a reference for purposes

of changing or granting staff privileges, credentials, or employment, a health

facility or agency that employs, contracts with, or grants privileges to health

professionals licensed or registered under [the Public Health Code5] shall notify

the requesting health facility or agency of any disciplinary or other action

reportable under subsection (5) that it has taken against a health professional

licensed or registered under [the Public Health Code] and employed by, under

contract to, or granted privileges by the health facility or agency.

The trial court determined that, because plaintiff agreed in writing that defendant would

be free to provide information about him to prospective employers, “[t]he only way Plaintiff

could overcome this, is if Plaintiff shows that Defendant did this out of malice,” but that “there

was no showing of malice on the Defendant’s part.”

Plaintiff asserts that the trial court erred by failing to consider the evidence that defendant

did not follow its bylaws, that defendant relied on hearsay over plaintiff’s denials in deciding to

terminate him and providing damaging information to others, that the director of defendant’s

emergency department “made admissions that contradict the very statements Defendant had

made about Plaintiff,” and that defendant offered defamatory statements after plaintiff “refused

to submit to Defendant’s bribe letter.”

5

MCL 333.16101 et seq.

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Concerning the bylaws, as discussed earlier, they clearly disclaim their own contractual

significance while deferring to actual contracts. Accordingly, citing defendant’s election to act

against plaintiff as expeditiously as allowed by the employment agreement, as opposed to

through exercise of bylaws procedures, as evidence of bad faith on defendant’s part in reporting

negatively on plaintiff’s employment is speculative.

As to plaintiff’s assertion that defendant defamed him with hearsay that he denied,

plaintiff’s incomplete briefing of this issue specifies neither the alleged hearsay and attendant

denials, nor defendant’s emergency department director’s and defendant’s seemingly

contradictory statements. In any event, as explained earlier, plaintiff’s hearsay objections are

without merit. Further, that a medical employer would take note of second-hand information

concerning physician misconduct or dereliction of duty, while looking skeptically upon an

employee’s self-serving explanations in the matter, strikes us as unremarkable. This is likewise

the case if not all of an employer’s sources of information are entirely consistent about such

matters. This seems of particular significance, given that plaintiff’s amended complaint asserted

that his employment ended not because he was determined actually to have failed to comply with

applicable rules and regulations, but because of his “alleged” failure. Truth is an absolute

defense to a defamation claim. Porter v Royal Oak, 214 Mich App 478, 486; 542 NW2d 905

(1995). That there were such allegations is undisputed.

The trial court additionally stated that defendant “fails to provide any evidence that those

who authorized the letter to prospective employers were in anyway involved in the claims

asserted in this lawsuit.” Plaintiff does not suggest that the court erred in concluding that he

failed to show any linkage between defendant’s unfavorable reports about his performance and

any of defendant’s personnel who might have harbored animosity against him.

For these reasons, we reject plaintiff’s challenge to the trial court’s decision to grant

defendant summary disposition on his defamation claim.

VII. MOTION FOR RECONSIDERATION

In asserting that the trial court abused its discretion in partially denying his motion for

reconsideration,6 plaintiff offers only cursory argument, referring to what is “set forth more fully

in the proceeding [sic] discussions,” and also “in Plaintiff’s motion for reconsideration.”

Plaintiff thus asks us to search through his appellate brief for an argument supporting

reconsideration, or to treat his motion and supporting brief below as fully incorporated into his

appellate brief. But, pursuant to MCR 7.212(C)(7), which sets forth detailed requirements for

arguments presented in an appellant’s brief, an appellant cannot rely on the reader to discover

pertinent arguments from other parts of his brief or incorporate by reference his lower-court

advocacy. We therefore deem this issue abandoned for lack of clear argument, as required by the

6

See Kokx v Bylenga, 241 Mich App 655, 658-659; 617 NW2d 368 (2000) (stating that a court’s

decision on a motion for reconsideration is reviewed for an abuse of discretion).

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court rules. See Keller, 256 Mich App at 339-340; Rickner v Frederick, 459 Mich 371, 377 n 6;

590 NW2d 288 (1999).

Affirmed.

Defendant may tax costs under MCR 7.219(A).

/s/ Mark T. Boonstra

/s/ Jonathan Tukel

/s/ Anica Letica

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