Amir Kaki Md v. Tenet Healthcare Corporation

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

AMIR KAKI, M.D., UNPUBLISHED

May 30, 2024

Plaintiff/Counterdefendant-Appellee,

v No. 364976

Wayne Circuit Court

TENET HEALTHCARE CORPORATION, VHS, LC No. 22-012640-CZ

INC., VHS OF MICHIGAN, INC., VHS HARPER-

HUTZEL HOSPITAL, INC., VHS SINAI-GRACE

HOSPITAL, INC., VHS DETROIT RECEIVING

HOSPITAL, INC., ANTHONY TEDESCHI, SCOTT

STEINER, ERIC EVANS, CONRAD MALLET,

JOHN LEVY, JOHN HAAPANIEMI, MEHMET

BAYRAM, SHAWN LEVITT, FRANK TORRE,

RUDOLPH P. VALENTINI, ERICA WARD

GERSON, ALAN WOODLIFF, and KEITH PITTS,

Defendants/Counterplaintiffs-

Appellants.

Before: FEENEY, P.J., and M. J. KELLY and RICK, JJ.

PER CURIAM.

Defendants/counterplaintiffs, hereafter defendants, appeal as of right the trial court’s order

granting the motion of plaintiff/counterdefendant, hereafter plaintiff, to confirm the arbitration

award. We affirm.

I. FACTUAL HISTORY

Defendant Tenet Healthcare Corporation (Tenet), through its subsidiaries, operates

hospitals nationally, including in southeast Michigan. Defendant VHS of Michigan, Inc., is a

wholly owned subsidiary of defendant Tenet, doing business in Michigan as the Detroit Medical

Center (DMC). Defendants VHS Harper-Hutzel Hospital, Inc. (Harper-Hutzel), VHS Sinai-Grace

Hospital, Inc. (Sinai-Grace), and VHS Detroit Receiving Hospital, Inc., are hospitals within the

DMC health system and wholly owned subsidiaries of defendant Tenet. Defendant VHS, Inc., is

-1-

also a subsidiary of defendant Tenet.1 Plaintiff is a prominent cardiologist who was previously

employed by defendant Tenet to serve at various DMC hospitals.

This case arises out of the termination of plaintiff’s directorship agreement with the DMC

and the posttermination denial of his membership and medical staff privileges, which plaintiff

claims were taken in retaliation for voicing complaints regarding compromises to patient safety

and fraudulent billing by defendants. Plaintiff was recruited by the previous DMC president to

serve as director of the DMC cardiac catherization services unit in 2012 and the underlying

directorship agreement was repeatedly renewed, with the last agreement dated July 6, 2018;

plaintiff was also provided with membership and privileges, which were routinely renewed until

2019. Plaintiff regularly voiced complaints regarding the lack of quality care at defendant Sinai

Grace’s hospital and the failure of its peer review process to address underperforming physicians,

in addition to unsterile medical equipment and physician suspensions without notice. Defendant

Eric Evans, president of defendant Tenet’s hospital operations, subsequently expressed his

displeasure with plaintiff for raising the aforementioned concerns in a group setting. In March

2018, defendant Evans and defendant Anthony Tedeschi, the DMC Chief Executive Officer

(CEO), determined that the termination of plaintiff’s directorship was necessary and they engaged

Latham & Watkins, LLP (Latham Watkins), to investigate the cardiology department. Latham

Watkins issued its investigative report on September 27, 2018, contending plaintiff repeatedly

violated his directorship agreement, defendant Tenet’s standards of conducts, and the DMC

“disruptor provider” policy2 by yelling at DMC staff and fellow physicians, using obscenities, and

behaving in a physically threating way; the allegations were supported by questionable witness

reports that lacked attribution and detail, or review forms that were never previously shared with

plaintiff.

Plaintiff was never subject to any formal discipline by the DMC until his directorship

agreement was terminated on October 1, 2018, due to anonymous complaints contending plaintiff

suffered from behavioral issues and failed to properly supervise his fellows; the complaints were

subsequently found to be unsubstantiated. While plaintiff continued to have membership and

privileges at the DMC, he was barred from participating in the on-call schedule, training fellows,

teaching at the affiliated medical schools, and he was provided only two days to vacate his DMC

office. Plaintiff applied for the renewal of his membership and medical staff privileges at the DMC

in 2019; the DMC internal medicine department recommended the aforementioned renewal with

significant conditions attached, which the DMC credentials committee agreed with. The DMC

1

We will refer to defendant Tenet and its aforementioned defendant-subsidiaries as “hospital

defendants,” the individual defendants, who are members of the DMC governing body, internal

review committees, or leadership, as “individual defendants,” and all defendants collectively as

“defendants.”

2

The DMC disruptive provider policy is an internal human resources policy used to remediate

problematic physician behavior that may compromise patient safety; the aforementioned policy

defines “disruptive behavior” as “ ‘ [i]nappropriate displays of anger or resentment (examples

include but are not limited to verbal outbursts, condescending language or voice intonation;

abusive language, impatience with questions . . . threats of violence . . . [or] [i]nappropriate words

or actions directed toward another person . . . .’ ”

-2-

medical executive committee (MEC) additionally endorsed the renewal of plaintiff’s privileges

and membership, however, it would be for a one-year period with several stipulations. The MEC’s

recommendation was provided to the DMC governing body; the governing body maintained the

final decision-making authority regarding the application for membership and privileges at DMC

facilities.

The DMC governing body voted to deny membership and privileges to plaintiff on April

26, 2019; plaintiff received a letter conveying the adverse recommendation on April 29, 2019,

detailing the denial was based on concerns regarding quality of care, medical necessity, and patient

safety. The letter also detailed issues previously undisclosed to plaintiff and matters that were

never the subject of any DMC peer review, disciplinary, or remedial measures. Plaintiff

subsequently appealed the DMC governing body’s decision; the appeals process was directed by

the medical review committee hearing (“fair hearing”) panel. Plaintiff’s fair hearing proceedings

occurred on August 21, 2019 through August 22, 2019, and featured the testimony of several

witnesses and the presentation of evidence. The hearing panel included four physicians

uninvolved with plaintiff or his practice who found that the DMC governing body’s denial of

plaintiff’s membership and medical staff privileges was “ ‘incorrect, unjustified, unreasonable,

[sic] not substantiated by the evidence and unfounded.’ ” The fair hearing panel recommended

plaintiff’s membership and privileges be reinstated without conditions.

The relevant bylaws required plaintiff’s matter be returned to the MEC after the fair

hearing, and while this occurred on October 21, 2019, the matter was only reviewed for

“informational purposes” and there was no vote. Rather, the MEC issued its previous

recommendation and it notified plaintiff accordingly on October 24, 2019. Plaintiff was entitled

to an ad-hoc appeal committee review before the case returned to the DMC governing body for a

final vote. The DMC governing body convened on April 24, 2020, and it opted to deny

membership and medical staff privileges to plaintiff for the second time, contending the decision

was “ ‘primarily based on concerns about [his] disruptive behavior as well as on concerns about

quality and aggressive use of invasive procedures, lack of appropriate supervision, and conflicts

of interest that were not adequately disclosed if at all.’ ”

II. PROCEDURAL HISTORY

Plaintiff subsequently filed a complaint in the United States District Court for the Eastern

District of Michigan and the Wayne Circuit Court contesting the defendants’ termination of his

directorship, membership, and medical staff privileges under the False Claims Act (FCA), 31 USC

3730 et seq., and various state laws. The matters were subsequently dismissed because the parties

stipulated that all claims would be adjudicated per the arbitration provision in plaintiff’s

directorship agreement which required any issues arising out of, or related to, the aforementioned

agreement to be resolved by the Judicial Arbitration and Mediation Services (JAMS) and for

Michigan law to apply. The underlying arbitration occurred at the JAMS Detroit Resolution

Center for 18 days in September 2020 through October 2020. On December 18, 2020, the

arbitrator issued the final arbitration award, determining plaintiff was successful regarding several

claims and mandating defendants reinstate plaintiff’s DMC membership and medical staff

privileges, in addition to providing monetary damages.

-3-

On November 2, 2022, plaintiff filed a motion to confirm the arbitration award in the

Wayne Circuit Court requesting that the trial court both enter an order confirming the award, and

enter a judgment against defendants consistent with the monetary damages awarded, pursuant to

the Federal Arbitration Act (FAA), 9 USC 1 et seq., and the Michigan Uniform Arbitration Act

(MUAA), MCL 691.1681 et seq. On November 28, 2022, defendants filed a motion to vacate the

arbitration award contending (1) the arbitrator manifestly disregarded the law when she determined

a liability release provision signed by plaintiff was unenforceable regarding claims against certain

defendants, (2) the arbitrator improperly stripped the DMC governing body of the statutory

immunity it was entitled to under the Healthcare Quality Improvement Act of 1986 (HCQIA), 42

USC 11101 et seq., and (3) the arbitrator violated established Michigan law when she issued

duplicative awards of front pay damages and reinstatement regarding plaintiff’s membership and

medical staff privileges.

On January 19, 2023, the trial court held a motion hearing to address the parties’ cross-

motions regarding the arbitration award and it determined defendants failed to demonstrate that

the arbitrator engaged in a manifest disregard of the law, or otherwise exceeded the scope of her

authority, as to warrant vacatur of the arbitration award. On January 24, 2023, the trial court

entered an order denying defendants’ motion to vacate the arbitration award. On January 26, 2023,

the trial court entered an order granting plaintiff’s motion to confirm the arbitration award. This

appeal ensued.

III. LIABILITY RELEASE PROVISION

Defendants argue that the trial court erred when it granted plaintiff’s motion to confirm the

arbitration award because the arbitrator’s contradictory rulings regarding whether the liability

release signed by plaintiff was effective constituted a material and substantial error of law. We

disagree.

Generally, courts have a limited role in reviewing arbitration awards. This Court reviews

de novo a trial court’s decision whether to enforce, vacate, or modify an arbitration award. Ann

Arbor v American Federation of State, Co, & Muni Employees (AFSCME) Local 369, 284 Mich

App 126, 144; 771 NW2d 843 (2009). “A court may not review an arbitrator’s factual findings or

decision on the merits.” Id. Rather, a court may only review an arbitrator’s decision for errors of

law. TSP Servs, Inc v Nat’l-Standard, LLC, 329 Mich App 615, 620; 944 NW2d 148 (2019).

Not every error of law by an arbitrator, however, mandates subsequent court intervention.

[W]here it clearly appears on the face of the award or the reasons for the decision

as stated, being substantially a part of the award, that the arbitrators through an error

in law have been led to a wrong conclusion, and that, but for such error, a

substantially different award must have been made, the award and decision will be

set aside. [Id. (quotation marks and citation omitted).]

Moreover, in evaluating whether there is legal error, a court cannot engage in a review of an

arbitrator’s mental process, but instead must review “the face of the award itself.” Hope-Jackson

v Washington, 311 Mich App 602, 613; 877 NW2d 736 (2015). Furthermore, the legal error must

be so egregious as to materially affect the outcome of the arbitration and plainly “demonstrate a

-4-

disregard of principles fundamental to a fair resolution of the dispute,” or “ unequivocally generate

a legally unsustainable result, [such] that [the erroneous legal conclusion] cannot be said to be

within the parties’ agreement to arbitrate or the arbitrator’s authority.” Id. (quotation marks and

citation omitted).

The liability release provision detailed in plaintiff’s application for DMC membership and

medical staff privileges dictated the following:

I release from liability the hospital(s) and all third parties from any statements made

or any action taken in good faith and without malice in connection with this

application or any other applications made simultaneously herewith, and in

connection with any proceedings for reappointment, and/or clinical privileges

(including the granting, extension, reduction, suspension or termination thereof) or

in connection with a transfer to any other department or section of the medical

staffs, or in connection with any other form of review of my qualifications and

competence or of my professional practices in the hospital(s) conducted in

accordance with the medical staff bylaws.

The trial court did not err when it granted plaintiff’s motion to confirm the arbitration

award. The arbitrator did not violate any fundamental legal principles or generate a legally

unsustainable result when she determined that multiple defendants acted with malice in connection

with plaintiff’s application for membership and medical staff privileges. Thus the liability release

provision was inapplicable to defendant Tedeschi, defendant Evans, defendant Scott Steiner, who

was the DMC president, and hospital defendants. As a preliminary matter, the parties’ liability

release provision is a contract, and this Court is barred from reviewing the arbitrator’s

interpretation of the release or her factual findings. See AFSCME, 284 Mich App at 144 (stating,

“a reviewing court cannot engage in contract interpretation, which is an issue for the arbitrator to

determine”). Accordingly, “as long as the arbitrator is even arguably construing or applying the

contract and acting within the scope of his authority, a court may not overturn the decision even if

convinced that the arbitrator committed a serious error.” Id. at 144-145 (quotation marks and

citation omitted).

The arbitrator properly examined whether the liability release provision delineated in

plaintiff’s application for DMC membership and privileges was applicable to defendants, which

required that any relevant action be taken “in good faith and without malice.” The arbitrator cited

the “malice” standard provided in Feyz v Mercy Mem Hosp, 475 Mich 663, 687; 719 NW2d 1

(2006), and she further dictated “ ‘plaintiff must establish that defendant’s [sic] denial of his

reappointment was made with a dishonest belief, purpose of motive, and with a desire to cause

plaintiff pain, injury or distress[,]’ ” which mimics the definition of “good faith” and “malice” as

provided in Black Law’s Dictionary and Merriam-Webster’s Collegiate Dictionary.3 See Auto

3

“Good faith” is defined in Black’s Law Dictionary (11th ed), in part, as “(1) a state of mind

consisting in honesty in belief or purpose, (2) faithfulness to one’s duty or obligation.” “Bad faith”

is defined in Black’s Law Dictionary (11th ed) as “dishonesty of belief, purpose, or motive.”

“Malice” is demarcated in Black’s Law Dictionary (11th ed) as “the intent, without justification or

-5-

Owners Ins Co v Seils, 310 Mich App 132, 145; 871 NW2d 530 (2015) (providing, “A dictionary

may be consulted to ascertain the plain and ordinary meaning of words or phrases used in the

contract”). Based on the arbitrator’s determination that the decision to deny plaintiff’s

membership and privileges was made in retaliation for protected activity pursuant to the FCA, the

arbitrator further resolved that the underlying evidence also precluded the application of the

liability release provision to hospital defendants, in addition to defendants Evans, Tedeschi, and

Steiner. The arbitrator found the aforementioned defendants desired to cease plaintiff’s patient

safety advocacy, which included contentions that defendants billed improper procedures to

Medicare and Medicaid and various Sinai Grace physicians were involved in fraudulent activity.

The arbitrator cited Michigan caselaw to justify her legal conclusions and she extensively detailed

defendants’ conduct throughout the underlying investigative proceedings that was indicative of

malice or bad faith.

Defendants also contend that the arbitrator issued an inconsistent award because she

advanced that the DMC governing body acted with the “reasonable belief” that denying

membership to plaintiff was necessary to promote patient care and safety, but the DMC governing

body also rendered its privilege decision with malice, dishonest belief, and a desire to cause

plaintiff pain, injury, or distress— an inherently inconsistent premise. Defendants conflate,

however, the statutory frameworks relevant to the enforceability of the liability release provision,

which is a matter of contract interpretation, and whether defendants were entitled to immunity

regarding the denial of plaintiff’s membership and medical staff privileges, which is governed by

HCQIA. The statutory language of the HCQIA, particularly 42 USC 11112(a), does not mention

the terms “malice” or “good faith;” rather, it determines whether a governing body’s actions were

“reasonable.” Defendants additionally assert that plaintiff attributes the DMC governing body’s

denial of plaintiff’s membership and medical staff privileges to the malicious acts of defendant

Tedeschi, defendant Evans, and defendant Steiner. Plaintiff then argues the arbitrator appropriately

concluded the DMC governing body thus acted with malice. The evidentiary record fails to support

these contentions, however. Defendants advance that the aforementioned defendants were not

members of the DMC governing body and their malicious acts thus could not be ascribed to the

governing body, plus the arbitrator never concluded that the remaining governing body members

were simply “dupes.”

Defendants, again, distort the arbitrator’s factual findings and legal analysis regarding the

conduct of the DMC governing body, the individual defendants, and the hospital defendants under

the FCA and contract interpretation doctrines, as opposed to the HCQIA, in addition to

misconceiving plaintiff’s argument. The arbitrator determined that defendants Tedeschi, Evans,

and Steiner preordained the termination decision and they purposefully launched the questionable

Latham Watkins investigation against plaintiff in order to deny plaintiff medical staff privileges,

and the DMC governing body merely “rubberstamped” the aforementioned defendants’ malicious

conclusion regarding plaintiff’s removal. The DMC governing body heavily relied on the results

from the questionable Latham Watkins investigation in its decision regarding plaintiff, and it

deliberated for a short period of time before determining the denial of plaintiff’s membership and

excuse, to commit a wrongful act,” and in Merriam-Webster’s Collegiate Dictionary (11th ed) as

a “desire to cause pain, injury, or distress to another.”

-6-

privileges was appropriate, despite all the internal review committees recommending a contrary

conclusion. The arbitrator concluded that the conduct of defendant Tedeschi, defendant Evans,

and defendant Steiner were the “but for” cause of the DMC governing body’s decision to deny the

renewal of plaintiff’s medical staff privileges.

The arbitrator also noted there was insufficient evidence that defendant John Levy, the

chairman of the DMC governing body, acted with malice but he acted in careless disregard of the

truth; the remaining individual defendants, while not liable for the retaliation claims based on the

FCA’s inapplicability to nonemployer defendants, were released from liability based on the

contested release provision. The arbitrator did not conclude that the DMC governing body, itself,

acted with malice because that is not the appropriate inquiry under the HCQIA, as previously

detailed. Rather, it imputed the malicious conduct of defendants Tedeschi, Evans, and Steiner onto

hospital defendants for purposes of the FCA, as it constituted retaliation for protected activity.

Because defendants failed to establish that the arbitrator unreasonably construed the liability

release provision, exceeded the scope of her authority, or otherwise committed an egregious error

evident on the face of the award, the trial court properly granted plaintiff’s motion to confirm the

arbitration award.

IV. HEALTHCARE QUALITY IMPROVEMENT ACT

Defendants also argue that the trial court erred when it granted plaintiff’s motion to confirm

the arbitration award because the arbitrator committed a material and substantial error of law as

she failed to recognize that defendants were entitled to statutory immunity under the HCQIA. We

disagree, noting the arbitrator devoted 25 pages of her 84-page opinion to a discussion of the

HCQIA.

In 1986, the United States Congress (Congress) passed the HCQIA due to the “national

need to restrict the ability of incompetent physicians to move from State to State without disclosure

or discovery of the physician’s previous damaging or incompetent performance.” 42 USC

11101(2). Congress further determined that the aforementioned matter may be “remedied through

effective professional peer review,” but the “[t]hreat of private money damage liability . . .

unreasonably discourage[d] physicians from participating in effective professional peer review.”

42 USC 11101(3)-(4). Recognizing the “overriding national need to provide incentive and

protection for physicians engaging in effective professional peer review,” 42 USC 11101(5),

Congress enacted the HCQIA to immunize from liability for damages any professional review

body that performs, in compliance with the relative statutory requirements, a professional review

action. 42 USC 11111(a)(1). HCQIA immunity extends to “any person acting as a member or

staff to the [professional review] body,” “any person under a contract or other formal agreement

with the body,” and “any person who participates with or assists the body with respect to the

action.” 42 USC 11111(a)(1)(B)-(D).

The HCQIA mandates that a professional review action satisfies four conditions for the

professional review body to acquire immunity from liability in damages under the HCQIA. 42

USC 11112(a). The action must be taken (1) “in the reasonable belief that the action was in the

furtherance of quality health care,” (2) “after a reasonable effort to obtain the facts of the matter,”

(3) “after adequate notice and hearing procedures are afforded to the physician involved or after

such other procedures as are fair to the physician under the circumstances,” and (4) “in the

-7-

reasonable belief that the action was warranted by the facts known after such reasonable effort to

obtain facts and after meeting the requirement of paragraph (3).” 42 USC 11112(a)(1)-(4). The

parties do not contest the arbitrator’s findings regarding the first HCQIA factor, 42 USC

11112(a)(1).

Turning to the second factor, defendants identify as a “legal error” a trivial misquotation

from a case which considered this factor. Defendants argue that the arbitrator applied the incorrect

legal standard in determining the DMC governing body did not make a reasonable effort to obtain

the facts of the matter pursuant to the second HCQIA factor, 42 USC 11112(a)(2). Defendants

contend that, as opposed to examining whether the totality of the process leading up to the

professional review action evinced a reasonable effort to acquire the relevant facts, the arbitrator

considered whether the facts presented by the governing body were sufficient, thereby

inappropriately substituting her judgment for that of the decisionmaker. We disagree.

The arbitrator considered whether the DMC governing body advanced a reasonable effort

to obtain the facts of the matter under 42 USC 11112(a)(2), which was satisfied if “ ‘the totality of

the facts leading up to the professional review action evidences a reasonable effort to obtain the

facts.’ ” While the arbitrator initially misquoted the standard, as provided in Meyers v

Columbia/HCA Healthcare Corp, 341 F3d 461, 469 (CA 6, 2003), it is axiomatic that the “totality

of the process” includes the facts of what transpired and the arbitrator was entitled to discern

whether each step of process indicated a reasonable effort to acquire the facts on defendants’ part.

More importantly, the arbitrator recognized that statutory immunity was presumed under

the HCQIA unless plaintiff demonstrated by a preponderance of the evidence that at least one of

the four requirements was not established such that it would be unreasonable for any person to

make the decision made by the DMC governing body in April 2020 to deny membership and

privileges to plaintiff. Other than the trivial misquotation, defendants merely attempt to bootstrap

their belief that the arbitrator made a factual error in her conclusion that led to a legal error. In

essence, defendants are inviting us to review the correctness of the arbitrator’s conclusion.

Because that is not a court’s proper role in reviewing an arbitration decision, we decline the

invitation.

Specifically, the arbitrator concluded that plaintiff sustained his burden of demonstrating

by a preponderance of the evidence that defendants failed to make a reasonable effort to acquire

the facts before its decision to deny membership and privileges, and she opined:

To summarize, the facts [sic] that [defendants] did not utilize their own policies

such as DMC peer review to investigate allegations concerning the behavior and

other issues of [plaintiff], or the Disruptor Provider Policy so [plaintiff was] on

notice of the specific conduct at issue, the fact that [plaintiff was] not told of the

bases of the first denial of membership decision until [he] received the letter from

Levy, that is [he was] not offered the opportunity to provide information from [his]

perspective, such as any complaints [he was] aware of were not substantiated, [he]

did not know of the quality reviews until advised by Latham in the context of a

negotiation to relinquish [his] membership, and even then [was] not told what cases

were being reviewed so [he] could offer [his] perspective, and that the Board did

not consider the facts adduced at the Fair Hearing, that the MEC did not apply its

-8-

revised policies to [plaintiff] when the matter returned to the MEC, per the Bylaws

after the Fair Hearing, and the fact that the Board did not articulate any objective

bases to reject the recommendations provided [to] them, all demonstrate that any

reasonable person would find a lack on the part of [defendants] to use reasonable

efforts to obtain the facts of the matter before the [DMC Governing Body’s] 2020

vote.

The arbitrator extensively considered the various processes underlying defendants’ purported

efforts to obtain the facts of the matter, and she opined that “any reasonable person” would find

defendants failed to do so under the second HCQIA factor, 42 USC 11112(a)(2). Because

defendants fail to cite any controlling legal principle the arbitrator breached in her examination, or

the arbitrator otherwise exceeded her authority, the trial court did not err in granting plaintiff’s

motion to confirm the arbitration award.

Because plaintiff only needed to establish that one of the four requirements was not met in

order to deny defendants immunity,4 42 USC 11112(a), and the arbitrator determined that plaintiff

did so on this factor, we need not consider defendants’ challenges to the remaining factors.

Accordingly, we decline to set aside the arbitrator award based upon defendants’ arguments under

the HCQIA.

V. DOUBLE RECOVERY

Defendants also argue that the trial court erred when it granted plaintiff’s motion to confirm

the arbitration award because the arbitrator exceeded her authority by neglecting to abide the

recognized rule that successful plaintiffs cannot be awarded the double recovery of both front pay

damages and reinstatement. We disagree.

The arbitration clause in plaintiff’s directorship agreement provides the following:

9. ARBITRATION. Any dispute or controversy arising under, out of or in

connection with, or in relation to this Agreement, or any amendment hereof, or the

breach hereof shall be determined and settled by final and binding arbitration in the

county in which the Hospital is located in accordance with the Commercial Rules

of Arbitration (“Rules”) of the Judicial Arbitration and Mediation Services

(“JAMS”) before one arbitrator applying the laws of the State. The parties shall

attempt to mutually select the arbitrator. In the event they are unable to mutually

agree the arbitrator shall be selected by the procedures prescribed by the JAMS

Rules. Any award rendered by the arbitrator shall be final and binding upon each

4

See Brown v Presbyterian Healthcare Services, 101 F3d 1324 (CA 10, 1996) (“if a plaintiff

challenging a peer review action proves, by a preponderance of the evidence, any one of the four

requirements was not satisfied, the peer review body is no longer afforded immunity from damages

under the Health Care Quality Improvement Act.”). See also Gilbert v Kent County Memorial

Hosp, 64 F4th 44, 51 (CA 1, 2023) (“The HCQIA requires that a professional review action meet

four conditions for the professional review body to obtain immunity from liability in damages

under the HCQIA.”).

-9-

of the parties, and judgment thereof may be entered in any court having jurisdiction

thereof. The costs shall be borne equally by both parties.

JAMS Rule 24(c), in turn, dictates that “The Arbitrator may grant any remedy or relief that is just

and equitable and within the scope of the Parties’ Agreement, including, but not limited to, specific

performance of a contract or any other equitable or legal remedy.”

The arbitrator scrutinized the appropriate damages to award plaintiff pursuant to the

aforementioned arbitration provision and the FCA, which entitled successful claimants to the relief

necessary to make them whole. The arbitrator first provided, with respect to plaintiff’s directorship

agreement, that reinstatement was unavailable as a remedy because it would displace innocent

parties already bound by contractual relationships. While defendants advanced there was no

authority authorizing the reinstatement of plaintiff’s medical staff privileges, the aforementioned

contention is incorrect as the arbitrator deduced that previous FCA plaintiffs were awarded

reinstatement of their privileges and membership at the DMC. Furthermore, the equitable remedy

was within the arbitrator’s power as, apart from the parties’ adoption of the JAMS rules, the

directorship agreement is silent as to particular remedies or limitations on the arbitrator’s authority.

See Mich Dept of State Police v Mich State Police Troopers Ass’n, ___ Mich App ___, ____; ___

NW2d ___ (2023) (Docket No. 363241); slip op at 9 (providing, “A reviewing court necessarily

substitutes its own judgment for that of the arbitrator when it vacates or modifies an award that

was properly granted under the scope of the arbitrator’s authority”).

The arbitrator determined that a one-year reinstatement of plaintiff’s membership, without

any conditions, was appropriate, with a start date of February 1, 2021; any subsequent renewals of

plaintiff’s privileges were subject to the new MEC procedures. Concerning monetary damages,

the FCA dictated claimants were entitled to an award of their back pay, doubled, and reasonable

front pay per 31 USC 3730(h)(2). The arbitrator relied on the damages chart plaintiff’s expert

presented and she determined that backpay in the amount of $2,352,718.00 and front pay in the

amount of $1,034,892.00 was proper in light of plaintiff’s ability to “mitigate somewhat

successfully” and his shorter career at the DMC. See Landin v Healthsource Saginaw, Inc, 305

Mich App 519, 539; 854 NW2d 152 (2014) (noting, “The question whether the plaintiff’s efforts

to mitigate damages were reasonable under the circumstances is one for the trier of fact”). The

arbitrator further awarded $1 million in exemplary damages due to the emotional distress,

humiliation, and reputational harm plaintiff suffered. While the law purportedly treats

reinstatement and front pay as alternative remedies, the arbitrator solely granted plaintiff partial

reinstatement, as his membership and medical staff privileges were reinstituted for a one-year

period but his directorship was not. Furthermore, the FCA provides the following regarding the

appropriate relief from retaliatory actions, in pertinent part:

(h) Relief From Retaliatory Actions.—

(1) In general.—

Any employee, contractor, or agent shall be entitled to all relief necessary to make

that employee, contractor, or agent whole, if that employee, contractor, or agent is

discharged, demoted, suspended, threatened, harassed, or in any other manner

discriminated against in the terms and conditions of employment because of lawful

-10-

acts done by the employee, contractor, agent or associated others in furtherance of

an action under this section or other efforts to stop 1 or more violations of this

subchapter.

(2) Relief.—

Relief under paragraph (1) shall include reinstatement with the same seniority status

that employee, contractor, or agent would have had but for the discrimination, 2

times the amount of back pay, interest on the back pay, and compensation for any

special damages sustained as a result of the discrimination, including litigation

costs and reasonable attorneys’ fees. An action under this subsection may be

brought in the appropriate district court of the United States for the relief provided

in this subsection. [31 USC 3730(h)(1)-(2).]

Under the aforementioned antiretaliation provision, plaintiff was entitled to recover all the

relief necessary to make him whole; accordingly, the arbitrator was required to reinstate plaintiff’s

seniority status to the extent feasible. Defendants engaged in two discrete retaliatory acts resulted

in (1) the termination of plaintiff’s directorship and associated agreements and (2) the subsequent

denial of plaintiff’s membership and medical staff privileges. Consequently, plaintiff suffered the

loss of multiple distinct types of income and opportunities for income, neither of which were

amenable to a sum certain dollar amount due to the status afforded to the directorship position per

the arbitrator’s factual findings. The arbitrator noted that plaintiff was barred from participating

in the on-call schedule, training fellows, and teaching at the affiliated medical schools, and he was

provided only two days to vacate his DMC office after his directorship position was terminated.

Moreover, the renewal of plaintiff’s privileges for a period of one year, after a near one-year

absence at the DMC, did not reflect the damages of plaintiff’s reputation and his efforts to rebuild

his patient base. Accordingly, the award of front pay mitigated the disparity created by the partial

reinstatement of plaintiff’s previously held positions, and it was neither duplicative nor a breach

of the arbitrator’s authority under the directorship agreement or the FCA. Because defendants

have failed to establish any error on the face of the award warranting vacatur, the trial court did

not err when it granted plaintiff’s motion to confirm the arbitration award.

Affirmed.

/s/ Kathleen A. Feeney

/s/ Michael J. Kelly

/s/ Michelle M. Rick

-11-