Goldberg v. Rush University Medical Center

SECOND DIVISION
FILED: February 20, 2007

No. 1-06-1005

ROBERT S. GOLDBERG, M.D., ) APPEAL FROM THE CIRCUIT
) COURT OF COOK COUNTY, ILLINOIS
Plaintiff-Appellant, )
)
v. )
)
RUSH UNIVERSITY MEDICAL )
CENTER, f/k/a RUSH PRESBYTERIAN- )
ST. LUKE’S MEDICAL CENTER, an ) No. 04 L 12403
Illinois not-for-profit corporation; )
MIDWEST ORTHOPEDICS AT RUSH, )
L.L.C., an Illinois limited liability company, )
as successor to Midwest Orthopaedics, a )
dissolved or in-dissolution Illinois general )
partnership; GUNNAR B. ANDERSSON, )
M.D., MARK S. COHEN, M.D., and DOES )
I-XXV, ) HONORABLE
) ALLEN S. GOLDBERG,
Defendants-Appellees. ) JUDGE PRESIDING.

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Robert S. Goldberg, M.D., appeals the dismissal of his action against the

defendants, Rush University Medical Center (Rush), Midwest Orthopedics At Rush, L.L.C.,

(Midwest), Gunnar B. Andersson, M.D., Mark S. Cohen, M.D., and other unknown former partners

in Midwest, pursuant to section 2-619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-619

(West 2004)). For the reasons that follow, we affirm.

Goldberg brought this action seeking damages from the defendants based on his claims for

tortious interference with contractual relations, tortious interference with prospective economic

advantage, and breach of contract. He also sought injunctive relief. The allegations contained in the
No. 1-06-1005

second amended complaint and attached exhibits reveal the following factual scenario. Since 1995,

Goldberg, an orthopedic surgeon, has been a member of the medical staff at Rush, a private, not-for-

profit hospital. He also practices at other private hospitals and medical clinics in the Chicago area.

At Rush, Goldberg works with Andersson, the Chairman of the Department of Orthopedic Surgery,

and with Cohen, another orthopedic surgeon on Rush’s medical staff. Andersson and Cohen are both

partners in Midwest, a limited-liability company that operates an orthopedic surgery practice at Rush

and other private hospitals and clinics.

As a member of the medical staff, Goldberg’s affiliation with Rush is governed by the Bylaws

of the Medical Staff of Rush (bylaws). The bylaws set forth a grievance procedure under which

medical staff members may challenge certain conduct that affects the member’s medical practice and

is inconsistent with the clinical and academic mission of the member’s department, the medical staff,

or the medical center. The conduct that may be the subject of a grievance includes (1) unreasonable

denial of, or restriction of access to, the available resources of the member’s department, (2)

unreasonable actions or practices by the department, the medical staff, or the medical center, and (3)

the executive committee’s failure to act in a situation where the bylaws or the rules and regulations

of the medical staff have not been followed. Each grievance must be filed in writing within 30 days

of the event on which the grievance is based, and if informal resolution of the grievance cannot be

accomplished, the physician may request a hearing before an ad hoc committee.

Beginning in December 1995, Goldberg repeatedly voiced complaints to Andersson, Cohen

and other personnel at Rush about his assignments and treatment as a member of the medical staff.

In particular, Goldberg complained that he had not been assigned an equitable share of the emergency

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room hand-trauma call, he did not have access to orthopedic surgery residents in his surgeries or

office clinics, he had not been given the opportunity to perform teaching duties in the Department of

Orthopedic Surgery, and he had not been allowed to participate in developing proposed revisions to

the Department of Orthopedic Surgery Rules of Governance.

In 2003, Goldberg initiated a formal grievance under Rush’s bylaws, raising numerous issues,

including those set forth above. A five-member grievance committee was appointed, with two of

those members selected by Goldberg. Several of Goldberg’s complaints were dismissed by the

committee because they were not alleged to have affected his practice or because they had not been

grieved within 30 days as required by the bylaws. Goldberg ultimately withdrew his grievance on the

remaining issues after expressing dissatisfaction with the delay in the proceedings and with the

committee’s prehearing rulings regarding document production and the grievable issues.

Shortly after withdrawing his grievance, Goldberg filed this action, seeking damages for

tortious interference with contractual relations, tortious interference with prospective economic

advantage, and breach of contract. Specifically, Goldberg alleged that, as a result of the defendants’

conduct, he was denied (1) an equitable share of the Rush emergency room hand trauma call, (2)

access to orthopedic surgery residents in Rush operating rooms, (3) appropriate teaching duties in

the Rush Department of Orthopedic Surgery, and (4) participation in developing proposed revisions

to the Rush Department of Orthopedic Surgery Rules of Governance. Goldberg also claimed that

emergency room cases involving hand traumas were improperly diverted to Cohen on Goldberg’s

assigned hand-trauma call days, that Goldberg’s advancement from Adjunct Attending Physician to

Assistant Attending Physician had been delayed by more than six years, that surgeons who were

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No. 1-06-1005

members of Midwest received improper subsidies of equipment and other resources from Rush, and

that the renewal of Goldberg’s lease on his office space was improperly delayed. Goldberg also

sought injunctive relief in the event that his damages claims were dismissed.

The defendants moved to dismiss the action, asserting, inter alia, that the conduct underlying

Goldberg’s claims was not subject to judicial review and that Goldberg had failed to exhaust his

administrative remedy within the medical institution because he withdrew his grievance before the

matter was heard by the grievance committee. Initially, the circuit court rejected the defendants’

argument that the conduct underlying Goldberg’s claims was not subject to judicial review, but

dismissed the second amended complaint because Goldberg had failed to exhaust the remedies

available to him under the grievance procedure specified in the bylaws. On Goldberg’s motion for

reconsideration, the court reversed its ruling on both grounds. In its final order, the circuit court

determined that Goldberg was not required to exhaust his remedies under the grievance procedure,

but his action must be dismissed because the conduct underlying his claims was not subject to judicial

review.1 This appeal followed.

In reviewing the circuit court’s dismissal under section 2-619 of the Code, this court accepts

as true all well-pled facts in the plaintiff’s complaint and draws from those facts all reasonable

1
The defendants styled their motions as brought pursuant to section 2-615 of the Code.
We observe that the defendants’ motions were actually hybrid motions, asserting certain grounds
for dismissal which were proper under section 2-615 and other grounds which were proper under
section 2-619. In ruling that Goldberg’s action must be dismissed because the conduct underlying
his claims was not subject to judicial review, the circuit court treated the motions as filed under
section 2-619. On appeal, Goldberg has not alleged any prejudice based on the mislabeling of the
defendants’ motions or the circuit court’s decision to dismiss under section
2-619. See Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 758,
810 N.E.2d 500 (2004).

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No. 1-06-1005

inferences which are favorable to the plaintiff. Borowiec v. Gateway 2000, Inc., 209 Ill. 2d 376, 413,

808 N.E.2d 957 (2004); Zych v. Tucker, 363 Ill. App. 3d 831, 833, 844 N.E.2d 1004 (2006). We

do not, however, accept as true conclusions of law or fact that are unsupported by allegations of

specific fact. Merritt v. Randall Painting Co., 314 Ill. App. 3d 556, 559, 732 N.E.2d 116 (2000).

An action will be dismissed under section 2-619 of the Code if, after construing the pleadings

and supporting documents in the light most favorable to the nonmoving party, the trial court finds

that no set of facts can be proved upon which relief could be granted. Webb v. Damisch, 362 Ill.

App. 3d 1032, 1037, 842 N.E.2d 140 (2005). A section 2-619 motion to dismiss admits the legal

sufficiency of the complaint and raises defects, defenses, or other affirmative matters that defeat the

claim. Cohen v. McDonald’s Corp., 347 Ill. App. 3d 627, 632, 808 N.E.2d 1 (2004). In reviewing

an appeal from a dismissal under section 2-619, the relevant question is whether there exists a genuine

issue of material fact precluding dismissal, or absent an issue of material fact, whether dismissal is

proper as a matter of law. Lykowski v. Bergman, 299 Ill. App. 3d 157, 164, 700 N.E.2d 1064

(1998). Review of such a dismissal is de novo. Martin v. Illinois Farmers Insurance, 318 Ill. App.

3d 751, 757, 742 N.E.2d 848 (2000).

On appeal, Goldberg argues that the circuit court erred in dismissing his action based on the

determination that the conduct underlying his claims was not subject to judicial review. Goldberg’s

argument is premised on his assertion that the “rule of nonreview,” which formed the basis for the

court’s ruling, is inapplicable in this case.

Illinois has long adhered to the judicially created doctrine of “nonreview.” See Garibaldi v.

Applebaum, 194 Ill. 2d 438, 451-52, 742 N.E.2d 279 (2000); Adkins v. Sarah Bush Lincoln Health

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No. 1-06-1005

Center, 129 Ill. 2d 497, 506-07, 544 N.E.2d 733 (1989); Barrows v. Northwestern Memorial

Hospital, 123 Ill. 2d 49, 52, 525 N.E.2d 50 (1988). Under this doctrine, as a matter of public policy,

internal staffing decisions of private hospitals are not subject to judicial review. Garibaldi, 194 Ill.

2d at 451; Adkins, 129 Ill. 2d at 506; Barrows, 123 Ill. 2d at 51-52. The judicial reluctance to review

these internal staff decisions reflects the unwillingness of courts to substitute their judgment for that

of hospital officials with superior qualifications to consider and decide such issues. Garibaldi, 194

Ill. 2d at 452; quoting Adkins, 129 Ill. 2d at 507.

An exception to this rule has developed where a physician’s existing staff privileges are

revoked, suspended, or reduced. Garibaldi, 194 Ill. 2d at 451-52; Adkins, 129 Ill. 2d at 506-07; Lo

v. Provena Covenant Medical Center, 356 Ill. App. 3d 538, 542, 826 N.E.2d 592 (2005); Knapp v.

Palos Community Hospital, 176 Ill. App. 3d 1012, 1018, 531 N.E.2d 989 (1988); Jain v. Northwest

Community Hospital, 67 Ill. App. 3d 420, 425, 385 N.E.2d 108 (1978). In such circumstances, the

court will engage in limited review to determine whether the hospital complied with its bylaws in

rendering the decision. Garibaldi, 194 Ill. 2d at 451-52; Adkins, 129 Ill. 2d at 506-07; Lo, 356 Ill.

App. 3d at 542; Knapp, 176 Ill. App. 3d at 1018; Jain, 67 Ill. App. 3d at 425. Where a hospital’s

decision does not result in a revocation, suspension, or reduction of existing privileges, Illinois courts

will not consider the merits of a private hospital’s staffing decision. Garibaldi, 194 Ill. 2d at 452.

Goldberg does not argue that the defendants’ conduct resulted in a revocation, suspension,

or reduction of his staff privileges; he concedes that his privileges have not been adversely affected.

Instead, Goldberg asserts that the circuit court erred in applying the doctrine of “nonreview” to

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dismiss his action because the rule is inapplicable in this context. According to Goldberg, the doctrine

applies solely to staffing decisions involving hospital appointments and privileging. We disagree.

Contrary to Goldberg’s assertion, the doctrine of “nonreview” is not exclusively restricted to

cases involving a question of whether a particular doctor’s privileges should be granted, denied, or

disciplined. In Garibaldi v. Applebaum, 194 Ill. 2d 438, 451-52, 742 N.E.2d 279 (2000), the hospital

entered into an exclusive contract for the performance of open-heart surgery with a physicians’ group,

of which the plaintiff was not a member. Garibaldi, 194 Ill. 2d at 441. The plaintiff argued that the

exclusive contract effectively revoked his right to perform open-heart surgery. Garibaldi, 194 Ill. 2d

at 448. The court rejected this argument and distinguished the plaintiff’s privileges from his ability

to exercise those privileges. Garibaldi, 194 Ill. 2d at 449-50. In making this distinction, the court

stated that the grant of medical privileges, signifying that a doctor is qualified to practice at the

hospital, is separate and distinct from the right to exercise those privileges, which may be affected by

a host of hospital administrative decisions that are wholly unrelated to a physician’s competence or

ethics. Garibaldi, 194 Ill. 2d at 448-49. The court determined that, although the plaintiff’s ability to

exercise his privileges at the hospital might be curtailed, or even eliminated, by the exclusive contract,

the plaintiff had not suffered a revocation, suspension, or reduction of his privileges. Garibaldi, 194

Ill. 2d at 449. Because the plaintiff had not suffered a revocation, reduction, or suspension of his

privileges, the supreme court refused to review the hospital’s staffing decision to enter into the

exclusive contract. Garibaldi, 194 Ill. 2d at 452.

Thus, although Garibaldi did not involve the grant, denial, or discipline of the plaintiff’s

medical privileges, the supreme court applied the doctrine of “nonreview” to the hospital’s

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administrative decision to enter into the exclusive contract for open-heart surgeries. Garibaldi, 194

Ill. 2d at 452. Implicit in the court’s decision was the recognition that hospital staffing decisions

include determinations regarding the assignment of particular tasks and responsibilities. In Garibaldi,

the relevant staffing decision centered on the question of which doctors were assigned to perform

open-heart surgeries. In this case, Goldberg’s claims were also premised on staffing decisions which

focused on which doctors were assigned to the emergency room hand-trauma call, to engage in

teaching responsibilities, to have residents assist them in their surgeries, and to participate in the

revision of departmental regulations. Goldberg asserted that the above assignments were not fairly

distributed by the Rush administrators. However, like the plaintiff in Garibaldi, Goldberg has failed

to distinguish between his medical privileges and his ability to exercise those privileges.

The doctrine of “nonreview” is grounded on the idea that courts are not well equipped to

review the action of hospital authorities in rendering medical staffing decisions because those

decisions involve specialized medical and business considerations that are uniquely within the

province of the medical community and hospital administrators. See Tabora v. Gottlieb Memorial

Hospital, 279 Ill. App. 3d 108, 116, 664 N.E.2d 267 (1996); Knapp, 176 Ill. App. 3d at 1020. This

principle recognizes that hospital administrators should be free to make management and personnel

decisions that impact on patient care, allocation of resources, and potential liability without judicial

intervention. See Barrows, 123 Ill. 2d at 58. The power to manage the affairs of a private hospital

necessarily must include the discretion to make routine clinical staffing assignments and allocation

of resources and personnel. The doctrine of “nonreview” serves both judicial economy and the

medical and commercial interests of private corporations operating a hospital or medical center.

Consequently, hospital staffing decisions are entitled to deference from the courts. See Adkins, 129

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Ill. 2d at 506-07. We hold that the circuit court acted properly in applying the doctrine to dismiss

Goldberg’s action.

Finally, we observe that although Goldberg’s notice of appeal reflects an intent to appeal the

circuit court’s denial of leave to file a third amended complaint, his brief does not include any

argument or citation to relevant authorities to support this challenge. Accordingly, this argument has

been forfeited on appeal. See Official Reports Advance Sheet No. 12 (June 7, 2006), R. 341(h)(7),

eff. September 1, 2006 (argument portion of brief shall contain the contentions of the appellant and

the reasons therefore, with citation of the authorities and the pages of the record relied on, and points

not argued are waived); People v. Lantz, 186 Ill. 2d 243, 261-62, 712 N.E.2d 314 (1999).

Moreover, even if this issue had been preserved for review, we find no reversible error in the

circuit court’s denial of leave to file a third amended complaint. The circuit court has broad

discretion in determining whether to allow an amendment to a complaint, and its ruling on the

plaintiff’s request will not be disturbed on appeal absent a manifest abuse of that discretion. Loyola

Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273-74, 586 N.E.2d 1211 (1992);

Keefe-Shea Joint Venture v. City of Evanston, 364 Ill. App. 3d 48, 61, 845 N.E.2d 689 (2005). In

order to determine whether the circuit court abused its discretion in denying a motion to file an

amended complaint, the court considers four factors: (1) whether the proposed amendment would

cure the defective pleading; (2) whether the parties would sustain prejudice or surprise by virtue of

the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous

opportunities to amend the pleading could be identified. Keefe-Shea Joint Venture, 364 Ill. App. 3d

at 62.

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Here, Goldberg requested leave to add two new claims for declaratory relief. In the first of

these claims, set forth in proposed Count 5, Goldberg sought a declaratory judgment that the

defendants were violating or improperly failing to enforce the grievance procedures and other

mandates in the bylaws. Leave to file this claim was properly denied because it was premised on the

same conduct underlying the four counts in the second amended complaint and was precluded by the

doctrine of “nonreview.” Therefore, this proposed amendment did not cure the defective pleading.

See Keefe-Shea Joint Venture, 364 Ill. App. 3d at 62.

In the second new claim, contained in proposed Count 6, Goldberg requested a declaration

that he had not defamed Midwest or Rush in the grievance and circuit court proceedings. Leave to

file this claim was properly denied because a declaration of nonliability for past conduct is not a

function of the declaratory judgment statute. Howlett v. Scott, 69 Ill. 2d 135, 143, 370 N.E.2d 1036

(1977); Werst v. Three Fires Council of Boy Scouts of America, 346 Ill. App. 3d 706, 714, 805

N.E.2d 709 (2004); AEH Const., Inc. v. State, Dept. of Labor, 318 Ill. App. 3d 1158, 1161, 743

N.E.2d 1102 (2001). In light of these considerations, we hold that the circuit court did not abuse its

discretion in denying Goldberg leave to file a third amended complaint.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

WOLFSON, P.J., and HALL, J., concur.

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