Irwin Harris, M.D. v. Bellin Memorial Hospital and Confidential Peer Review, Ltd.

13 F.3d 1082, 1994 U.S. App. LEXIS 269, 1994 WL 3791
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 7, 1994
Docket92-2785, 92-2942
StatusPublished
Cited by32 cases

This text of 13 F.3d 1082 (Irwin Harris, M.D. v. Bellin Memorial Hospital and Confidential Peer Review, Ltd.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Irwin Harris, M.D. v. Bellin Memorial Hospital and Confidential Peer Review, Ltd., 13 F.3d 1082, 1994 U.S. App. LEXIS 269, 1994 WL 3791 (7th Cir. 1994).

Opinions

CUMMINGS, Circuit Judge.

This is an appeal from summary judgment granted in favor of the defendants Beilin Memorial Hospital (“Beilin”) and Confidential Peer Review, Ltd. (“CPR”) in a diversity action,. 28 U.S.C. § 1332. The Court has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.

Plaintiff filed his notice of appeal on July 24, 1992, which was assigned docket number 92-2785 in this Court. Judgment was entered on the district court’s orders on July 27, 1992. The appeal was therefore filed three days prematurely because there was not yet a final judgment under Fed.R.Civ.P. 58. This defect was cured, however, when the final judgment was entered. Fed.R.App.P. 4(a)(2); Metropolitan Life Ins. Co. v. Estate of Common, 929 F.2d 1220 (7th Cir.1991). Plaintiffs second notice of appeal, filed on August 10, 1992 and assigned docket number 92-2942, is therefore duplicative of the earlier appeal. It is accordingly dismissed.

A grant of summary judgment is reviewed de novo. Lister v. Stark, 942 F.2d 1183, 1187 (7th Cir.1991). If, after viewing the facts and the reasonable inferences therefrom in the light most favorable to the non-moving party, it is clear that no reasonable jury could return a verdict in its favor, then summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 255, 106 S.Ct. 2505, 2510, 2513, 91 L.Ed.2d 202. In this case, because no reasonable jury correctly applying substantive law could find in favor of plaintiff, the grant of summary judgment for defendants is affirmed.

Background

Plaintiff, now a citizen of Cincinnati, Ohio, is a cardiologist and cardiac surgeon who was associated with defendant Beilin between November 1972 and April 1989. Beilin is located in Green Bay, Wisconsin. Dr. Harris was a, member of Beilin’s staff and held cardiac, vascular, and thoracic privileges. His practice consisted in large part of “high-risk” cardiac surgeries, that is, operations on patients who presented a higher risk of complications or death than the general pool of cardiac patients. By 1988 most of plaintiff’s referrals were from another doctor on Bei-lin’s staff, Dr. Peter Fergus, who apparently was more willing, than other doctors in Green Bay to refer high-risk cardiac patients for surgery. Because other cardiac surgeons at Beilin often refused to operate on these high-risk patients, Dr. Fergus in turn relied on Dr. Harris to operate.on them. R. 45, Exhibit C at ¶ 5.

Due in part to the high level of mortality and complications among plaintiffs patients and in part to complaints by the nursing staff concerning Dr. Harris’ erratic behavior during surgery, the hospital undertook several reviews of his surgeries. In October 1988 Dr. Stewart Gifford, Chairman of the Department of Surgery but not himself a cardiologist, reviewed eight of plaintiffs surgical mortalities and concluded that there was no [1084]*1084evidence that plaintiffs treatment of these patients was anything but excellent. By March of 1989, however, Dr. Harris’ mortality rates were even higher than they had been in 1988. An internal ad hoc committee was formed to investigate his practice. The committee concluded that the mortality and infection rates for Dr. Harris’ patients were unusually high and recommended that an outside investigative team review his cases. In addition, the committee requested that Dr. Harris refrain from operating on high-risk cardiac patients until the conclusion of the outside review. As a result, Dr. John Martin, President of Beilin’s Medical Staff, met with Dr. Harris and told him that unless he agreed to refrain from operating on high-risk patients (to be determined by Dr. Fergus, the referring physician) his surgical privileges would be temporarily suspended. Dr. Harris agreed not to operate on high-risk patients except in emergencies.

In April 1989 Beilin retained CPR, which has its principal place of business in Ke-nosha, Wisconsin, to review Dr. Hams’ performance. CPR, an organization comprised of physicians with academic and medical credentials, reviews the performance of health care providers throughout the United States. A CPR review consists of four phases: determining the case mix and time frame to be reviewed; reviewing administrative records; on-site inspection of medical records selected by the team; and preparing a final report that includes findings, conclusions, and recommendations. Consistent with this procedure, CPR first decided to review all of plaintiffs 1988 surgeries. In its on-site inspection CPR ranked Dr. Harris’ surgeries on a scale of one to five, with a one indicating care of good quality and a three or higher representing substandard care. Plaintiff received a one or two for forty-eight of the surgeries reviewed by CPR, and a three or higher for the remaining nineteen. In eleven cases the team questioned plaintiffs use of an intra-aortic balloon pump. It concluded that out of the sixty-seven cases reviewed, Dr. Harris displayed a questionable technique in fourteen of his operations and an inappropriate technique in nine others. Sixteen of the operations resulted in death.

CPR’s fourth review phase was the preparation of a written report. Although it ordinarily did not make recommendations prior to the completion of the report, in this case the review team immediately recommended that Dr. Harris’ surgical privileges at Beilin be suspended because the care rendered to his cardiac patients was unsafe. Consistent with this recommendation, the very next day Beilin’s President, Mr. Thomas Arndt, told Dr. Harris that if he did not immediately resign all of his surgical privileges, thoracic and vascular as well as cardiac, they would be summarily suspended. Dr. Harris signed a letter in which he purported to resign these privileges voluntarily.

CPR’s final report, made in June 1989, was consistent with the oral recommendations of the investigative team. It concluded that Dr. Harris was not providing patients under his care with an adequate level of judgment and technical ability. His surgical technique was different from those most commonly used, probably causing complications in several patients. His patients experienced excessive bleeding, and more than 76% of them experienced post-operative complications. Its final recommendation was that Beilin revoke Dr. Harris’ cardiac privileges.

Dr. Harris was subsequently offered opportunities to meet with both the ad hoc committee and the CPR review team to discuss the final report, and was informed that he was entitled by the hospital’s bylaws to a formal hearing. He declined the formal hearing but did meet with Mr. Hohol, Beilin’s Vice President of Medical Staff Services, Mr. Arndt and two members of the CPR team, accompanied by both his attorney and Dr. Fergus. After a full-day meeting CPR issued a follow-up report that concluded that Dr. Harris was incapable of performing cardiac surgery safely.

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Bluebook (online)
13 F.3d 1082, 1994 U.S. App. LEXIS 269, 1994 WL 3791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/irwin-harris-md-v-bellin-memorial-hospital-and-confidential-peer-ca7-1994.