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Levitt v. Iasis Healthcare Holdings Inc.

Court of Appeals of Utah

May 2, 2019

Jodie K. Levitt, Appellant,
v.
Iasis Healthcare Holdings Inc., Salt Lake Regional Medical Center LP, Alan Davis, and Wanda Updike, Appellees.

          Third District Court, Salt Lake Department The Honorable Andrew H. Stone No. 160900952

          Cecil R. Hedger and John Robinson Jr., Attorneys for Appellant

          Jonathan A. Dibble, Elaina M. Maragakis, and Erin M. Adams, Attorneys for Appellees

          Judge Kate Appleby authored this Opinion, in which Judges Ryan M. Harris and Diana Hagen concurred.

          OPINION

          APPLEBY, Judge

         ¶1 Jodie K. Levitt is a neurosurgeon with a medical staff appointment and privileges at Salt Lake Regional Medical Center (SLRMC). After Levitt's privileges at SLRMC were temporarily suspended, she sued Salt Lake Regional Medical Center LP, Iasis Healthcare Holdings Inc., Alan Davis, and Wanda Updike (collectively, Defendants). Following discovery, the district court entered summary judgment in favor of Defendants. Specifically, the court concluded that Utah's statutory care review immunity protects them from Levitt's lawsuit absent a showing of bad faith or malice and concluded that Levitt had failed to produce evidence of bad faith or malice. Levitt appeals, arguing that summary judgment was inappropriate because there were genuine disputes of material fact as to whether Defendants acted in good faith and without malice. We affirm.

         BACKGROUND

         ¶2 In 2011, Levitt applied for a two-year renewal of her medical staff appointment and privileges at SLRMC.[1] Around December 29, 2011, she received a letter dated November 23, 2011, (the November 23 Letter) from SLRMC's chief executive officer (CEO) granting her a "six-month conditional reappointment." The November 23 Letter explained that Levitt's reappointment was "conditional" because she had "several peer reviews pending." That is, SLRMC had asked independent "neurosurgeons with fellowships in spinal surgery" to review several of Levitt's medical cases that SLRMC thought were potentially problematic.

         ¶3 After receiving the November 23 Letter, Levitt requested further information about why her reinstatement was conditional. Various SLRMC representatives "informed her that [they] could not talk with her about her cases that were being peer reviewed." These individuals generally denied Levitt's requests for information because they believed it was "a requirement to protect the peer review privilege." On two occasions, however, SLRMC provided Levitt with a list of her cases that had been sent for peer review.

          ¶4 Around February 10, 2012, Levitt received a letter dated January 30, 2012 (the January 30 Letter) from SLRMC's Credentials Committee informing her that the Committee had reviewed six of her peer reviewed cases as well as "two other recent occurrences that [were] pending review." The January 30 Letter identified two issues of concern from Levitt's cases. First, several of her patients had experienced "CSF leaks."[2] To address this, the Committee requested that Levitt submit "a written protocol for handling CSF leaks in the future." Second, Levitt had performed "three wrong-site surgeries."[3] The letter said that wrong-site surgeries "are serious events and if another wrong-site occurrence happens, the Committee [would] discuss further action which could include termination of privileges." To address this issue, the Committee requested that Levitt submit "a written protocol as to how [she would] establish confirmation of correct site surgery in the operating room." The January 30 Letter informed Levitt that if she submitted the requested written protocols by March 1, 2012, she would receive "a three-month conditional reappointment." But it noted that the Credentials Committee would continue to review her cases "in a concurrent fashion."

         ¶5 On February 14, 2012, Levitt submitted the requested written protocols. That same day, CEO, Davis, and Updike[4] met with Levitt to discuss their concerns about a recent incident that "required immediate action." During the meeting, CEO, Davis, and Updike issued a twenty-eight day suspension of Levitt's surgical and medical privileges.

         ¶6 The following day, SLRMC sent Levitt a letter summarizing the suspension "per the [February 14] meeting." It said the suspension would last "at least 14 days," but that Levitt's privileges would be reinstated if she completed certain "criteria," including a "proctorship." That is, Levitt was to submit a plan for proctoring by a neurosurgeon of "one lumbar case," "one cervical case," and "four other cases to be proposed by [Levitt] and approved by the Chief of Staff that would pertain to the areas of clinical or procedural concern as discussed with [Levitt] in the meeting."

         ¶7 Levitt requested a hearing on her temporary suspension. Davis responded by email and informed her that a hearing would "not be done on an emergent basis." Instead, he told Levitt that she needed to request a hearing "within the 30-day window described in [the] bylaws," and it "would be scheduled for some time in the future." The email also said that, if Levitt completed her six proctored cases during the twenty-eight day suspension, she would "not be reported to the National Practitioner Data Bank [(the NPDB)[5] as having been suspended." Davis cautioned her that "proceeding with the hearing process would probably postpone a decision on her privileges beyond 30 days, which would then make her summary suspension reportable." Levitt did not respond to Davis's email or make any further request for a hearing. Instead, she "successfully completed the proctorship," and her medical staff appointment and privileges were reinstated.

         ¶8 In 2016, Levitt sued Defendants for breach of contract, breach of the implied covenant of good faith and fair dealing, tortious interference with economic relations, and civil conspiracy. She alleged that Defendants' actions against her "were taken to accomplish the objective of destroying [her] reputation and of the wrongful goal of ...


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