Donald R. Samuel, M.d. v. Herrick Memorial Hospital, Lenawee Health Alliance , Dr. Laurie Barkway , David…

12 Samuel v. Herrick Memorial
Hosp., et al.
No. 99-1462
Obstetricians and Gynecologists concluded that plaintiff had
exercised "poor judgment" and had failed to "demonstrate
foresight to anticipate complications of care." Id. The
American College of Obstetricians and Gynecologists report
also stated that plaintiff's "failure to recognize critical signs of
fetal and maternal compromise prevents him from
recognizing the need to seek assistance of from providing
optimal obstetric care based on recognized, published
standards of care." Id. Finally, the American College of
Obstetricians and Gynecologists concluded that "[a]ttempts to
rehabilitate [plaintiff] within Herrick Memorial Hospital can
not succeed due to lack of patient volume, acuity of care, and
personal-social relationships previously established at this
hospital." Id. Based on this report, we believe that any
damage that may be done to plaintiff's professional reputation
is substantially outweighed by the harm that defendants and
the public would suffer if plaintiff continues to practice
medicine without additional training. Because the balance of
harms weighs against granting the preliminary injunction, and
because plaintiff is not likely to prevail on the merits, we
conclude that the district court abused its discretion when it
granted the preliminary injunction in this case.
We have interlocutory appellate jurisdiction in this case
only to review the propriety of the injunction under 28 U.S.C.
§ 1292(a)(1), not to review on an interlocutory basis the
denial of defendants' motion for summary judgment.
Accordingly, the preliminary injunction is dissolved.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0026P (6th Cir.)
File Name: 00a0026p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DONALD R. S AMUEL, M.D.,
Plaintiff-Appellee,
v.
HERRICK M EMORIAL
HOSPITAL, LENAWEE HEALTH
ALLIANCE , DR. LAURIE
BARKWAY , DAVID HICKMAN ,
DR. M ICHAEL S AMMARCO ,
M ICHAEL M IHORA , J OHN
R OBERTSTAD , HAROLD
EASTON and LINDA YIELDING ,
Defendants-Appellants.
;>

1
No. 99-1462
Appeal from the United States District Court
for the Eastern District of Michigan at Ann Arbor.
No. 99-60140—George C. Steeh, District Judge.
Argued: June 9, 1999
Decided and Filed: January 18, 2000
Before: MERRITT, DAUGHTREY, and MOORE, Circuit
Judges.

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2 Samuel v. Herrick Memorial
Hosp., et al.
No. 99-1462
_________________
COUNSEL
ARGUED: David A. French, MILLER, CANFIELD,
PADDOCK & STONE, Ann Arbor, Michigan, for
Appellants. Robert A. Maxwell, DENISON & MAXWELL,
Bloomfield Hills, Michigan, for Appellee.
_________________
OPINION
_________________
MERRITT, Circuit Judge. This appeal from a grant of a
preliminary injunction concerns the suspension of staff
privileges to plaintiff, Donald Samuel, M.D., an
obstetrician/gynecologist, by defendant Herrick Memorial
Hospital. After Herrick Memorial suspended plaintiff's staff
privileges, he moved the district court for a preliminary
injunction enjoining the suspension. The district court
granted the injunction, thereby reinstating plaintiff's privileges
with certain conditions. Defendants appealed the grant of the
injunction to this Court. This Court stayed enforcement of the
injunction by order dated May 14, 1999. The case comes to
our panel from the motions docket and we heard oral
argument on the motion to stay. For the reasons that follow,
we now vacate the injunction and remand the case to the
district court for further proceedings.
I.
Plaintiff is an African-American physician with a private
practice in Tecumseh, a small community between Toledo,
Ann Arbor and Detroit. He attended medical school in
Toledo and completed his residency in obstetrics and
gynecology at a hospital in Michigan. He set up a practice in
Texas and, in 1990, he was recruited by Herrick Memorial to
be its staff OB/GYN because Tecumseh did not have one in
the community. In 1992, plaintiff set up a private practice,
No. 99-1462 Samuel v. Herrick Memorial
Hosp., et al.
11
interfere with plaintiff's business relationships. As explained
above, we do not believe plaintiff has shown a likelihood of
success on the merits of the underlying claims that form the
bases for his conspiracy claim. Nor has plaintiff stated any
specifics as to how defendants conspired against him.
Basically, plaintiff has alleged that defendants conspired to
drive him out of business either because of his race and/or
because they did not want any competition in the obstetrics
and gynecology area. Plaintiff offers little in the way of
support for these conspiracy theories except the hiring of Dr.
Sammarco and the results of the peer review process. As
explained above, thus far plaintiff has not put forth any facts
demonstrating an improper motive behind these actions.
Therefore, we do not find that plaintiff has demonstrated a
likelihood of success on the merits as to a conspiracy
underlying any of these claims.
We also believe that the district court erred when it
determined that the balance of harms in this case weighs in
favor of granting the preliminary injunction. The district
court granted the preliminary injunction because it determined
that the sanctions imposed by the hospital would cause
irreparable harm to the plaintiff's professional reputation in
the community. See Order Granting Preliminary Injunction
at 7 ("[P]laintiff is facing not only financial ruin and
insolvency if injunctive relief is not granted, but the
destruction of his professional reputation and with it, the loss
of any chance to rebuild his now burgeoning medical
practice.") In reaching its decision, however, the district court
failed to give sufficient weight to the harm that defendants
and the public would suffer if the plaintiff is allowed to
continue to practice obstetrics and gynecology without first
receiving further medical training.
Indeed, the results of the on-site review that was performed
by the American College of Obstetricians and Gynecologists
show that plaintiff's poor judgment and clinical deficiencies
have endangered his patients on several occasions. Report of
Site Visit at 30. In its report, the American College of

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10 Samuel v. Herrick Memorial
Hosp., et al.
No. 99-1462
Gen. Hosp., 229 Conn. 592, 643 A.2d 233 (1994); Lewisburg
Comm. Hosp., Inc. v. Alfredson, 805 S.W.2d 756 (Tenn.
1991); Wong v. Garden Park Comm. Hosp., Inc., 565 So. 2d
550 (Miss. 1990); Bouquett v. St. Elizabeth Corp., 43 Ohio St.
3d 50, 558 N.E.2d 113 (1989); Bock v. John C. Lincoln
Hosp., 145 Ariz. 432, 702 P.2d 253 (Ariz. Ct. of App. 1985);
Spencer v. Community Hosp. of Evanston, 87 Ill. App. 3d
214, 408 N.E.2d 981 (1980); Margolin v. Morton F. Plant
Hosp. Ass'n, Inc., 348 So. 2d 57 (Fla. App. 1977). Michigan
follows an even more stringent rule that does not allow any
review, even to ensure that the methods put forth by hospital
for peer review are followed. See, e.g., Sarin v. Samaritan
Health Center, 176 Mich. App. 790, 795, 440 N.W.2d 80
(1989); accord Zipper v. Health Midwest, 978 S.W.2d 398
(Mo. App. 1998); Winston v. American Med. Int'l, Inc., 930
S.W.2d 945 (Tex. Civ. App. – Houston 1997). The third
option, followed by a small but apparently growing number
of states, allows judicial review to ensure that the hospital's
decision was not arbitrary and capricious or otherwise
unreasonable. The laws in these jurisdictions require that the
hospital's decision to suspend or otherwise limit a physician's
access to the hospital facilities be supported by "some"
evidence or allow some further analysis beyond review only
of adherence by the hospital to its procedures. See, e.g.,
Cooper v. Delaware Valley Med. Center, 539 Pa. 620, 654
A.2d 547 (1995); Zoneraich v. Overlook Hosp., 212 N.J.
Super. 83, 514 A.2d 53 (1986).
In light of Michigan's flat rule against judicial intervention,
we conclude that the district court erred in finding a
likelihood of success on the merits on the tortious interference
with contractual relations and business relationships claim.
4. Conspiracy Claim
Plaintiff's conspiracy claim includes allegations of a
conspiracy to unreasonably restrain plaintiff from practicing
medicine in the community, a conspiracy to discriminate
against plaintiff based on his race and a conspiracy to
No. 99-1462 Samuel v. Herrick Memorial
Hosp., et al.
3
with financial backing by Herrick Memorial, and he was
extended staff privileges at Herrick Memorial. In 1996 he
became Chief of Staff at the hospital.
In 1996, defendant Lenawee Health Alliance purchased
Herrick Memorial and nearby Emma Bixby Memorial
Hospital, the only two hospitals in Tecumseh, and runs them
under a joint operating agreement. Plaintiff was a vigorous
opponent of this joint venture and claims that the hospital has
been trying to drive him out ever since. After the purchase,
Lenawee Health Alliance started looking for another
OB/GYN, despite plaintiff's protests that the area could not
support another OB/GYN. Over that protest, defendant Dr.
Sammarco, who is white, was hired as the staff OB/GYN at
Herrick Memorial.
In October 1998 one of plaintiff's patients died from
hemorrhaging after a caesarean delivery. The death was
plaintiff's first maternal death in 10 years of practice. After
the death, the hospital required him to consult with another
physician, in this case Dr. Sammarco, the only other OB/GYN
at Herrick Memorial, upon admitting a patient to the hospital.
This monitoring arrangement went on for four months, during
the pendency of the hearing process required by the hospital's
bylaws, and continued until this Court stayed enforcement of
the injunction and reimposed the suspension of privileges in
May at the request of defendants.
The hospital's Ad Hoc Hearing Committee held a hearing
on January 27, 1999, at which two physicians testified as to
plaintiff's competence and stated that plaintiff was not to
blame for the death. On February 3, 1999, the Ad Hoc
Hearing Committee recommended to the Medical Executive
Committee that the monitoring be discontinued pending the
results of an external review to be conducted by the American
College of Obstetricians and Gynecologists. The Medical
Executive Committee rejected the Ad Hoc Committee's
recommendation and the monitoring requirement continued.

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4 Samuel v. Herrick Memorial
Hosp., et al.
No. 99-1462
In February 1999, three reviewers from the American
College of Obstetricians and Gynecologists conducted an on-
site review of Herrick Memorial's obstetrics unit, at the
hospital's request. One reviewer was the Director of Medical
Education in the Department of Obstetrics and Gynecology at
Children's Hospital in Buffalo, New York, and another, an
African-American, was from the Department of Obstetrics
and Gynecology at the University of Chicago. The third
reviewer was a medical writer and computer specialist. The
review included interviews with staff members and a review
of some of plaintiff's case charts, although the reviewers knew
plaintiff only as "Physician A."
At the exit interview with hospital staff, the independent
reviewers issued a preliminary report recommending that
plaintiff undergo a six-month, intensive training program at
the residency level before he be allowed to continue the
practice of medicine. On March 4, 1999, based on the
reviewers' preliminary report given at the exit interview, the
Executive Committee recommended suspension of plaintiff's
privileges pending his completion of a six-month remedial
course in obstetrics/gynecology in a program approved by the
Executive Committee. Plaintiff had thirty days to apply for
such a program. Failure to comply with these conditions
would result in termination of his privileges.
The next day, March 5, 1999, plaintiff filed a complaint
alleging discrimination on the basis of race, antitrust
violations and state law tort and contract claims. Plaintiff
also moved for a preliminary injunction to lift the suspension,
which was granted in part by the district court with
instructions to defendants to institute monitoring procedures
for plaintiff instead of suspending his privileges. Specifically,
the complaint alleges (1) violations of 42 U.S.C. § 1981 based
on defendants' interference with Samuel's business contracts
and expectancies based on race (Count I), (2) that defendants
acted in concert to revoke his staff privileges and eliminate
OB/GYN competition within Lenawee County in violation of
the Sherman Antitrust Act, 15 U.S.C. §§ 1 et seq. (Count II),
No. 99-1462 Samuel v. Herrick Memorial
Hosp., et al.
9
1Florida has eliminated the distinction between private and public
hospitals for purposes of judicial reviewability by legislating that a
hospital must promulgate bylaws and those bylaws create a binding
contract between the physician and the hospital.
breached its contract with him and he is not asking for a
specific review of whether the hospital followed its own
procedures in suspending him, he is actually seeking judicial
intervention into the decision of a private hospital to suspend
his staff privileges. A decision of this nature is not proper
matter for judicial intervention and consideration of his claim
would make a "mockery of the rule that prohibits judicial
review of such decisions by private hospitals." Id. at 794, 440
N.W.2d at 83.
The judicial reviewability of medical staffing decisions has
been debated and continues to be debated in most states.
Most physicians are not employed by a hospital but instead
are independent contractors who are granted privileges to use
a hospital, including its staff and equipment. A hospital's
procedures for granting or renewing privileges and the
standards by which a doctor must abide are generally
embodied in the hospital's bylaws.
Most jurisdictions distinguish between private and public
hospitals, with the staffing decisions of public hospitals
subject to the due process and equal protections guarantees
under the United States Constitution and the staffing
decisions of private hospitals generally unreviewable or
subject to very limited judicial review.1 In addition, the level
of judicial review may differ between decisions to grant
privileges as an initial matter and decisions to limit or
suspend existing privileges.
The rule generally forbidding judicial review of staffing
decisions by private hospitals appears to be the majority view
in the United States, although some jurisdictions allow
limited judicial review to ensure only that the hospital
followed its own procedures. See, e.g., Owens v. New Britain

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8 Samuel v. Herrick Memorial
Hosp., et al.
No. 99-1462
alleged, plaintiff is complaining of nothing more than a
decrease or potential decrease in patients from competition.
Based on the facts in the record at this time, we do not see a
likelihood on the merits of the antitrust claim.
3. Tortious Interference with Contractual Relations and
Business Relationships Claim
As to the tortious interference claim, the claim on which the
district court found the most chance of success by plaintiff,
Michigan law is very clear that claims arising from the peer
review process are not judicially reviewable. The district
court therefore did not have jurisdiction to review this claim.
Under Michigan law, a private hospital is empowered to
appoint and remove its members at will without judicial
intervention and has the right to exclude any doctor from
practicing therein. Muzquiz v. W.A. Foote Mem. Hosp., Inc.,
70 F.3d 422, 430 (6th Cir. 1995); Long v. Chelsea Community
Hosp., 219 Mich. App. 578, 586, 557 N.W.2d 157, 161
(1996); Sarin v. Samaritan Health Center, 176 Mich. App.
790, 795, 440 N.W.2d 80 (1989); Veldhus v. Central Mich.
Community Hosp., 142 Mich. App. 243, 246, 369 N.W.2d
478, 479-80 (1985); Hoffman v. Garden City Hosp.-
Osteopathic, 115 Mich. App. 773, 778-79, 321 N.W.2d 810
(1982).
The only exception to this nonreviewability rule arises
when defendants have been accused of violating state or
federal law, such as state or federal discrimination laws. The
district court was free to review the federal antitrust and
discrimination claims, as we did above, but it was without
jurisdiction to review plaintiff's claim of tortious interference
with contractual relations and business relationships, as are
we, because it would necessarily involve a review of the
decision to suspend plaintiff and the methods or reasons
behind that action, which is clearly prohibited under Michigan
law as improper interference with the hospital's decisions and
the peer review process. See Sarin at 791-92, 440 N.W.2d
at 80. Although plaintiff does not allege that the hospital
No. 99-1462 Samuel v. Herrick Memorial
Hosp., et al.
5
(3) a state law claim of tortious interference with business
expectancy and relationships (Count III), (4) existence of a
civil conspiracy among defendants to (a) unreasonably
restrain plaintiff from practicing medicine, (b) interfere with
contracts with patients and (c) discriminate based on race
(Count IV), (5) defamation regarding statements about
plaintiff's ability to practice medicine and his mental health
(Count V), (6) a violation of the due process rights of
reasonable notice and a hearing prior to the deprivation of his
property interest to practice medicine (Count VI).
After a hearing held March 8, the district court granted the
preliminary injunction in part and ordered continuation of the
monitoring process. On March 15, defendants filed a motion
for dismissal of the complaint or summary judgment. At a
hearing held March 16, the district court ordered continuation
of the monitoring process.
On April 14, 1999, the court dismissed the defamation
(Count V) and due process (Count VI) claims pursuant to
Rule 12(b)(6), but refused to dismiss the other claims or to
grant defendants' motion for summary judgment, noting that
it believed the state law claim for tortious interference to be
the strongest claim. In a separate order issued the same day,
the district court granted the preliminary injunction in part,
because (1) it found that plaintiff had some possibility of
succeeding on the merits with regards to his tortious
interference with business expectations claim and (2) it found
that plaintiff would be irreparably injured in his medical
career by the suspension. The district court ordered that the
monitoring remain in place to ensure the safety of the
community. On April 26, 1999, the district court denied a
stay of the injunction pending appeal. At a May 3 status
conference, the district court approved the monitoring plan
proposed by plaintiff, which called for plaintiff to confer
telephonically with several doctors in other hospitals on each
admission. Defendants did not offer any counterproposal
regarding monitoring and maintained that any monitoring was

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6 Samuel v. Herrick Memorial
Hosp., et al.
No. 99-1462
unsatisfactory and unethical in light of the magnitude of
plaintiff's alleged deficiencies.
Defendants appealed the denial of the stay of the injunction
pending appeal and filed an interlocutory appeal of the denial
of their summary judgment motion. This Court stayed
enforcement of the injunction, thereby reimposing the
suspension of plaintiff's staff privileges at the hospital, but
also set the appeal on an expedited basis.
II.
When ruling on a motion for preliminary injunction, the
district court considers four factors: (1) whether the movant
is likely to prevail on the merits; (2) whether the movant
would suffer irreparable injury if the court does not grant the
injunction; (3) whether a preliminary injunction would cause
substantial harm to others and (4) whether a preliminary
injunction would be in the public interest. Glover v. Johnson,
855 F.2d 277, 282 (6th Cir. 1988). We review the district
court's determination under an abuse of discretion of standard.
Id.
Likelihood of Success on the Merits
We agree with the district court that there is minimal
evidence in the record to demonstrate a likelihood of success
on the merits of plaintiff's claims. Order Granting Preliminary
Injunction at 13 n.2 ("Plaintiff has not argued, at least not
with any serious conviction, that any of his other claims
[other than the tortious interference claim] are likely to
succeed on the merits."). The facts alleged in the complaint
are barely adequate to survive a motion to dismiss on the
federal discrimination and antitrust claims, although after
more discovery it may be possible for plaintiff to adduce
further evidence on these claims.
No. 99-1462 Samuel v. Herrick Memorial
Hosp., et al.
7
1. Racial Discrimination
Plaintiff alleges that Herrick Memorial discriminated
against him based on race in violation of 42 U.S.C. § 1981.
However, no specific examples relating to discrimination
against him are recited in his complaint. Plaintiff recites facts
concerning possible racial discrimination by Herrick
Memorial against a third party who applied for a job at the
hospital, but offers neither actual nor circumstantial evidence
regarding conduct against him. The only factual allegations
cited to support his claim are that the hospital hired Dr.
Sammarco, who is white, and his bare allegation that he was
reviewed and suspended after a patient death while
nonminority doctors were treated differently under similar
circumstances. Based on these factual allegations, we do not
see a likelihood of success on the merits.
2. Antitrust Claim
As to the antitrust claim, plaintiff contends that the hospital
wishes to drive him out of business because it would derive
greater revenue from patients seeing Dr. Sammarco, who is a
staff physician, instead of plaintiff, who in private practice
and has hospital privileges. In other words, the hospital first
hired Dr. Sammarco and then used the peer review process
improperly to restrain access to the market for obstetric and
gynecological services. First, at least the individual
defendants may be immune from antitrust liability for a
properly conducted peer review process. The Health Care
Quality improvement Act of 1986, 42 U.S.C. §§ 11101 et
seq., provides antitrust immunity for participants in properly
conducted peer review processes. Id. § 11111; see also Lie v.
St. Joseph Hosp. of Mt. Clemens, Mich., 964 F.2d 567, 570
(6th Cir. 1992). Second, plaintiff has related virtually no facts
that demonstrate that there was any anticompetitive motive
behind the hiring of Dr. Sammarco or plaintiff's suspension.
The allegations are based only on speculation of the
motivation behind these actions. Absent the assumptions
about the motives behind the conduct that plaintiff has

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