{ "id": 11792139, "name": "A. RON VIRMANI, M.D., Plaintiff v. PRESBYTERIAN HEALTH SERVICES CORP., Defendant", "name_abbreviation": "Virmani v. Presbyterian Health Services Corp.", "decision_date": "1997-08-05", "docket_number": "No. COA96-1263", "first_page": "71", "last_page": "79", "citations": [ { "type": "official", "cite": "127 N.C. App. 71" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "42 U.S.C. \u00a7 11101-11152", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "315 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714275, 4718790, 4717073, 4719672, 4715545 ], "year": 1986, "pin_cites": [ { "page": "341" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0597-02", "/nc/315/0597-01", "/nc/315/0597-03", "/nc/315/0597-04", "/nc/315/0597-05" ] }, { "cite": "335 S.E.2d 79", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "83-84" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521759 ], "year": 1985, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0253-01" ] }, { "cite": "131 L. Ed. 2d 287", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1994, "opinion_index": 0 }, { "cite": "31 F.3d 1478", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10534340 ], "pin_cites": [ { "page": "1487" } ], "opinion_index": 0, "case_paths": [ "/f3d/31/1478-01" ] }, { "cite": "72 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "53" } ], "opinion_index": 0 }, { "cite": "236 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622299 ], "year": 1952, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0059-01" ] }, { "cite": "245 N.W.2d 472", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10692787, 4746628 ], "year": 1976, "pin_cites": [ { "page": "475", "parenthetical": "medical staff bylaws are an enforceable part of the contract between physician and hospital" } ], "opinion_index": 0, "case_paths": [ "/nw2d/245/0472-01", "/sd/90/0674-01" ] }, { "cite": "497 So. 2d. 1261", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7608246, 7608303 ], "year": 1986, "pin_cites": [ { "page": "1264", "parenthetical": "hospital bylaws binding and enforceable contract between hospital and physicians privileged to practice in hospital" } ], "opinion_index": 0, "case_paths": [ "/so2d/497/1261-01", "/so2d/497/1261-02" ] }, { "cite": "805 S.W.2d 756", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10007103 ], "year": 1991, "pin_cites": [ { "page": "761", "parenthetical": "medical staff member has a \"contractual right to insist that the Hospital follow its bylaws\"" } ], "opinion_index": 0, "case_paths": [ "/sw2d/805/0756-01" ] }, { "cite": "401 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "806" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523084 ], "year": 1991, "pin_cites": [ { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0222-01" ] }, { "cite": "42 U.S.C. \u00a7 11113", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 808, "char_count": 19913, "ocr_confidence": 0.763, "pagerank": { "raw": 3.629147924028606e-07, "percentile": 0.8890387045731237 }, "sha256": "bacc860043e9a3e58ebc26a53e11d0db453fc938be552be0a886227e378afd4d", "simhash": "1:1fadff22b47c7bf7", "word_count": 3149 }, "last_updated": "2023-07-14T19:43:16.540119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHN and WALKER concur." ], "parties": [ "A. RON VIRMANI, M.D., Plaintiff v. PRESBYTERIAN HEALTH SERVICES CORP., Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nPresbyterian Health Services Corp. (Presbyterian) appeals an order granting A. Ron Virmani\u2019s, M.D., (Virmani) request for an injunction directing compliance with certain Medical Staff Bylaws (Bylaws).\nVirmani filed suit against Presbyterian (which operates two hospitals in the Charlotte area) claiming a breach of contract when his medical staff privileges (in those hospitals operated by Presbyterian) were suspended without the benefit of an opportunity to respond (at an early stage of the investigation) to allegations regarding his competence to practice medicine in hospitals operated by Presbyterian. Specifically Virmani claims the investigation was conducted pursuant to section 8.0-2 of the Bylaws and that section (entitled Peer Review Referral) requires that he, prior to any action by the Committee, be given notice of allegations and an opportunity to be heard before the Committee. Virmani seeks actual and consequential damages, attorneys\u2019 fees, and an injunction to prevent Presbyterian from suspending his privileges except in accordance with the Bylaws.\nThe matter came on for hearing before the trial court pursuant to competing motions for summary judgment. The evidence presented at the hearings on these motions reveals that Virmani was board-certified in obstetrics and gynecology and maintained a solo practice in Matthews, North Carolina, at the time he applied for and was granted staff privileges at one of the hospitals operated by Presbyterian. The Bylaws, a copy of which he received upon his application for privileges, provide that the granting of privileges is conditioned upon the applicant\u2019s agreement to be bound by the terms of the Bylaws. Bylaws \u00a7 6.2-2(a). As a member of the medical staff Virmani is granted the privilege to \u201cformulate . . . and recommend\u201d amendments to the Bylaws. Bylaws \u00a7 16.1.\nFourteen months after receiving his privileges Virmani, while performing a pelvic laparoscopy in the hospital, punctured a patient\u2019s iliac artery. Two weeks later, Simon V. Ward, M.D., (Ward), the Chairman of the OB/GYN Department, met with Virmani and informed him that Paul F. Betzold, (Betzold) President and CEO of Presbyterian, requested that an inquiry of the incident be conducted. Ward sought the assistance of the standing OB/GYN Peer Review Committee (Committee) to conduct the inquiry. During the next five months the Committee examined 102 of Virmani\u2019s cases and found 24 of them to be problematic in one of three areas: procedures performed without indication, documentation discrepancies, and medical management issues. At no time during the inquiry was Virmani questioned or given an opportunity to respond with regard to his treatment of the 102 cases investigated by the Committee. The' Committee, upon completion of its investigation, made its report to Ronald L. Brown, M.D., (Brown) the new OB/GYN chairman. Several months later Betzold notified Virmani that after reviewing the Committee\u2019s report he was suspending his \u201cclinical privileges ... at the Presbyterian Hospitals,\u201d pending review by the Medical Board. Virmani received permission to address the Medical Board to present reasons why his privileges should not be suspended. The Medical Board upheld Virmani\u2019s summary suspension. Virmani then made a timely request for a de novo hearing before a three-person Hearing Committee as provided by Article IX of the Bylaws. Three months later the de novo hearing was conducted at which time Virmani was given full due process rights, including the right to be present, the right to call and examine witnesses, and to cross examine witnesses. The Hearing Committee voted to affirm the suspension.\nUpon review of the Hearing Committee\u2019s report, the Medical Board unanimously voted to terminate Virmani\u2019s staff privileges and submitted its decision to the Board of Trustees of the Hospital for approval. Virmani requested an appeal before the Board of Trustees which was granted. The Board of Trustees unanimously upheld the decision to terminate Virmani\u2019s physician privileges.\nThe trial court granted Presbyterian\u2019s motion for summary judgment on Virmani\u2019s claim for monetary damages and granted Virmani\u2019s motion for summary judgment seeking injunctive relief. The order directed Presbyterian to conduct a new Peer Review hearing allowing Virmani to respond to written queries from the Committee, prior to its recommendation to the department chairman. The order further provided that the \u201cmembers of the ... Committee are to be different from the prior physicians who served on that Committee, and they are not to be OB-GYN physicians who maintain an office within the town limits of Matthews, North Carolina, or part of a medical group that maintains such an office.\u201d The order directed that there must be a \u201csubstitute\u201d selected to act as chairman of the OB/GYN department for the purposes of receiving and acting on the recommendations of the Committee. The trial court denied Presbyterian\u2019s claim that it should be awarded attorney\u2019s fees under the Health Care Quality Improvement Act (Act), 42 U.S.C. \u00a7 11113.\nThe issues are (I) whether the termination of Virmani\u2019s privileges was conducted pursuant to section 8.0-2 of the Bylaws; and if so, (II) whether the provisions of section 8.0-2 were violated; and if so, (III) whether a breach of the Bylaws gives rise to a claim for breach of contract; and if so, (IV) whether the Bylaws provide Presbyterian immunity from damages and injunctive relief; and if not, (V) whether the trial court can style injunctive relief so as to set the membership of the Committee; and (VI) whether Presbyterian is entitled to attorneys\u2019 fees.\nI\nPresbyterian argues that Virmani\u2019s privileges were not suspended pursuant to section 8.0-2 of the Bylaws but instead pursuant to section 8.2 and the latter section allows for summary suspension without the benefit of any prior notice or hearing. We disagree. Although it does appear (an issue we need not decide in this case) that section 8.2 allows for the summary suspension of the privileges of any physician whose conduct \u201crequires that immediate action be taken to protect the life of any patient(s),\u201d in this case the issue of Virmani\u2019s suspension was directed to the Committee which was asked to make a recommendation to the department chair. Thus, although the suspension may have qualified for a summary suspension under section 8.2-1, it was not handled in that manner and instead was treated as a peer review referral under section 8.0-2, with the Committee making a recommendation to the department chair who in turn submitted the recommendation to the President, who then suspended Virmani.\nII\nPresbyterian makes no argument that a section 8.0-2 hearing does not require a written query from the Committee to Virmani, prior to making a recommendation to the department chair. Indeed section 8.0-2 is specific in permitting referrals to the department chair only after providing the physician under investigation an opportunity to respond to written queries from the Committee.\nIll\nPresbyterian argues that even if the Bylaws were not followed there does not arise any claim by Virmani for breach of contract. Specifically it argues that because it is required by statute to have bylaws governing the suspension and termination of a physician\u2019s privilege to practice in hospitals, see N.C.G.S. \u00a7 131E-85(a) (1994), and because Virmani was required by statute to comply with the Bylaws, N.C.G.S. \u00a7 131E-85(d), \u201cthere was no mutual exchange of consideration\u201d and therefore no contract.\nWe acknowledge the general rule that the promise to perform an act which the promisor is already bound to perform cannot constitute consideration to support an enforceable contract. Warzynski v. Empire Comfort Sys., 102 N.C. App. 222, 231, 401 S.E.2d 801, 806 (1991). Thus the mere enactment of a set of bylaws pursuant to the statute is a preexisting duty and cannot itself constitute consideration for the formation of a contract. When, however, a hospital offers to extend a particular physician the privilege to practice medicine in that hospital it goes beyond its statutory obligation. See N.C.G.S. \u00a7 131E-85(a) (granting of privilege to physician not mandated and to be determined by hospital on a \u201cnon-discriminatory basis\u201d). If the offer is accepted by the physician, the physician receives the benefit of being able to treat his patients in the hospital and the hospital receives the benefit of providing care to the physician\u2019s patients. If the privilege is offered and accepted, each confers a benefit on the other and these benefits constitute sufficient and legal consideration for the performance of the agreement. See 17A Am. Jur. 2d Contracts \u00a7 113, at 129 (1991) (consideration defined to include any \u201cbenefit accruing to one party\u201d). If the offer includes a condition that the physician be bound by certain bylaws promulgated by the hospital and the physician accepts the offer, those bylaws become a part of the contract, as there is mutual assent to be bound by the bylaws. See 17A Am. Jur. 2d Contracts \u00a7 26, at 54 (mutual assent necessary for formation of contract); see also Lewisburg Community Hosp., Inc. v. Alfredson, 805 S.W.2d 756, 761 (Tenn. 1991) (medical staff member has a \u201ccontractual right to insist that the Hospital follow its bylaws\u201d); Lawler v. Eugene Wuesthoff Mem\u2019l Hosp., 497 So. 2d. 1261, 1264 (Fla. Dist. Ct. App. 1986) (hospital bylaws binding and enforceable contract between hospital and physicians privileged to practice in hospital); St. John\u2019s Hosp. Med. Staff v. St. John Reg\u2019l Med. Ctr., 245 N.W.2d 472, 475 (S.D. 1976) (medical staff bylaws are an enforceable part of the contract between physician and hospital).\nIn this case Virmani applied for and was granted the privilege to practice medicine in the hospitals operated by Presbyterian. The application process was in accordance with the Bylaws as adopted by Presbyterian and Virmani agreed \u201cto be bound by the terms\u201d of the Bylaws in the event he was granted hospital privileges. Bylaws \u00a7 6.2-2(a). Pursuant to this agreement Virmani became a member of the medical staff at Presbyterian and treated his patients in its hospital. This evidence about which there is no genuine issue supports the determination that a valid and enforceable contract existed between Presbyterian and Virmani and that the Bylaws were an integral part of that contract.\nIV\nPresbyterian argues that even if Virmani is entitled to proceed on his breach of contract claim, that claim must nonetheless be dismissed because its Bylaws provide it immunity from this claim. We disagree. Section 14.4-1 of the Bylaws, the section relied on by Presbyterian, provides:\nNo representative of the Hospital or its Staff shall be liable to a Health Practitioner for damages or other relief for any action taken or statement or recommendation made within the scope of his/her duties as a representative, if such representative acts in good faith and without malice after a reasonable effort under the circumstances to ascertain the truthfulness of the facts and in the reasonable belief that the action, statement, or recommendation is warranted by such facts.\n(Emphasis added). This Bylaw does not provide any immunity to Presbyterian. The plain and unambiguous language of the Bylaw provides immunity only to \u201crepresentative [s]\u201d or \u201cStaff\u2019 of the hospitals operated by Presbyterian. Thus Presbyterian is not entitled to any immunity under the provisions of section 14.4-1.\nV\nPresbyterian argues that even if it is not immune from injunctive relief the particular relief fashioned by the trial court in this case is beyond its authority. It argues that requiring it to conduct a new peer review process utilizing personnel different from that called for in the Bylaws was error. We agree. \u201cA court of equity cannot make a new contract for the parties . . . but must enforce the contract according to its terms or not at all.\u201d 71 Am. Jur. 2d Specific Performance \u00a7 211, at 270; see McLean v. Keith, 236 N.C. 59, 71, 72 S.E.2d 44, 53 (1952). In this case the Bylaws are designed to provide for internal peer review, see Bylaws \u00a7 8.0, and the order of the trial court interfered with that process. Accordingly this portion of the order of the trial court must be reversed and on remand the new peer review process is to be conducted in accordance with the Bylaws and the personnel selected in a manner as determined by the medical staff of the hospital not inconsistent with the Bylaws.\nVI\nThe Act provides for the payment of attorneys\u2019 fees in defense of a frivolous or unreasonable suit brought against a defendant under the Act. 42 U.S.C. \u00a7 11113. The purpose of providing the costs of legal representation is to encourage professional peer review by limiting the possibility of unreasonable litigation expenses. Smith v. Ricks, 31 F.3d 1478, 1487 (9th Cir.), cert. denied, 514 U.S. \u2014, 131 L. Ed. 2d 287 (1994).\nVirmani has neither alleged nor tried to prove that Presbyterian violated the provisions of the Act. As such, Presbyterian\u2019s claim that it should be awarded attorneys\u2019 fees under the Act is unfounded. The trial court was correct, therefore, in ordering each party to pay its own costs, including attorneys\u2019 fees.\nAffirmed in part, reversed in part and remanded.\nJudges JOHN and WALKER concur.\n. \u00a7 8.0-2 Peer Review Referral: Whenever a substantial question regarding quality of patient care, ethics or other definable Medical Staff responsibility is raised concerning an individual Staff member, and the peer review member(s) is unsatisfied with the individual\u2019s response to their written query, a referral of the issues shall be made in writing, to the chairperson of the department in which the Staff member serves.\n. \u00a7 8.2 Summary Suspension:\n8.2-1 Criteria and Initiation: Whenever a physician\u2019s/oral surgeon\u2019s conduct requires that immediate action be taken to protect the life of any patient(s) or to reduce the substantial likelihood of immediate injury or damage to the health or safety of any patient, employee or other person present in the Hospital, either the (1) chair of department or his/her designee, (2) the President, or (3) the chief of Staff shall have the authority to summarily suspend the Staff membership status or all or any portion of the clinical privileges of such physician/oral surgeon.\nSuch summary suspension shall become effective immediately upon imposition, and the Hospital President shall promptly give special notice of the suspension to the physician/oral surgeon. In the event of any such suspension, the physician/oral surgeon\u2019s patients then in the Hospital whose treatment by such physician/oral surgeon is terminated by the summary suspension shall be assigned to another physician/oral surgeon by the department chairperson. The wishes of the patient shall be considered, where feasible, in choosing a substitute physician/oral surgeon.\n8.2-2 Medical Board Action: As soon as possible after such summary suspension, a meeting of the Medical Board shall be convened to review and consider the action taken. The Medical Board may modify, continue or terminate the terms of the summary suspension.\n8.2-3 Procedural Rights: Unless the Medical Board immediately terminates the suspension and ceases all further corrective action, the physician/oral surgeon shall be entitled to the procedural rights as provided in Article IX, and the matter shall be processed in accordance with the provisions of the Fair Hearing Plan.\n.\n\u201cEach application for appointment to the Staff shall be in writing, submitted on the prescribed form, and signed by the applicant. When a physician or oral surgeon requests an application form, he/she shall be given a copy of, or access to a copy of, these Bylaws, the Staff Rules & Regulations, the Hospital corporate Bylaws and summaries of other Hospital and Staff policies relating to clinical practice in the Hospital.\u201d Bylaws \u00a7 6.2-1.\n. The preamble to the Bylaws indicates that the Bylaws were adopted by the Board of Trustees of Presbyterian. Any amendments to the Bylaws must be approved by the Board of Trustees. Bylaws \u00a7 16.1.\n. The issue of whether hospital bylaws are enforceable by a physician given hospital privileges is similar to the issue of whether employment manuals or policies are an enforceable part of an employment contract. \u201c[UJnilaterally promulgated employment manuals or policies do not become part of the employment contract unless expressly included in it.\u201d Walker v. Westinghouse Electric Corp., 77 N.C. App. 253, 259, 335 S.E.2d 79, 83-84 (1985), disc. rev. denied, 315 N.C. 597, 341, S.E.2d 39 (1986). In this case the Bylaws were not unilateral (medical staff had responsibility to \u201cformulate . .. and recommend\u201d Bylaws) and they were expressly included in the agreement to grant the privilege (physician had to agree to be bound by Bylaws as condition of receiving privilege).\n. We note that the trial court did grant Presbyterian\u2019s motion for summary judgment on Virmani\u2019s claim for monetary damages on the grounds that federal (42 U.S.C. \u00a7 11101-11152) and state statutes (N.C. Gen. Stat. 131E-95) immunized Presbyterian from monetary damages. Neither party has appealed from this ruling and therefore its correctness is not addressed.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Underwood, Kinsey, Warren & Tucker, by William L. Sitton, Jr.,, for plaintiff-appellee.", "Johnston, Taylor, Allison & Hord, by Patrick E. Kelly, and Greg C. Ahlum, for defendant-appellant." ], "corrections": "", "head_matter": "A. RON VIRMANI, M.D., Plaintiff v. PRESBYTERIAN HEALTH SERVICES CORP., Defendant\nNo. COA96-1263\n(Filed 5 August 1997)\n1. Hospitals and Medical Facilities or Institutions \u00a7 39 (NCI4th)\u2014 physician\u2019s staff privileges \u2014 bylaws as part of contract\nHospital bylaws governing the suspension and termination of a physician\u2019s staff privileges were an integral part of the physician\u2019s contract with the hospital, even though the hospital was required by statute to have such bylaws and the physician was required by statute to comply with the bylaws, where the physician agreed to be bound by the bylaws as a condition of receiving staff privileges, and pursuant to this agreement the physician became a member of the medical staff at the hospital and treated his patients in the hospital.\n2. Hospitals and Medical Facilities or Institutions \u00a7 39 (NCI4th)\u2014 physician\u2019s staff privileges \u2014 termination\u2014failure to follow bylaws \u2014 hospital not immune under bylaws\nA hospital bylaw providing that no representative of the hospital or its staff will be liable for damages or any other relief for any action, statement or recommendation within the scope of his or her peer review duties did not grant immunity to the hospital for breach of contract by failing to follow its bylaws in terminating a physician\u2019s hospital staff privileges.\n3. Hospitals and Medical Facilities or Institutions \u00a7 39 (NCI4th)\u2014 physician\u2019s staff privileges \u2014 termination\u2014failure to follow bylaws \u2014 different peer review personnel \u2014 no authority by court\nWhere the trial court found that defendant hospital did not follow the peer review procedure provided by its bylaws in terminating plaintiff physician\u2019s staff privileges, the court did not have the authority to require the hospital to conduct a new peer review process utilizing personnel different from that called for in the bylaws.\n4. Hospitals and Medical Facilities or Institutions \u00a7 39 (NCI4th)\u2014 termination of staff privileges \u2014 federal statute \u2014 attorney fees not warranted\nDefendant hospital was not entitled to attorney fees under the Health Care Quality Improvement Act in an action arising from the termination of plaintiff physician\u2019s hospital staff privileges where plaintiff neither alleged nor tried to prove that the hospital violated any provisions of the Act.\nAppeal by defendant from order dated 30 July 1996 by Judge Marcus L. Johnson in Mecklenburg County Superior Court. Heard in the Court of Appeals 21 May 1997.\nUnderwood, Kinsey, Warren & Tucker, by William L. Sitton, Jr.,, for plaintiff-appellee.\nJohnston, Taylor, Allison & Hord, by Patrick E. Kelly, and Greg C. Ahlum, for defendant-appellant." }, "file_name": "0071-01", "first_page_order": 107, "last_page_order": 115 }