Robert Powell, M.D. v. Brownwood Regional Hospital, Inc. D/B/A Brownwood Regional Medical Center

11th Court of Appeals Eastland, Texas Memorandum Opinion Robert Powell, M.D. Appellant Vs. No. 11-03-00171-CV -- Appeal from Brown County Brownwood Regional Hospital, Inc. d/b/a Brownwood Regional Medical Center Appellee Robert Powell, M.D. filed suit against Brownwood Regional Hospital, Inc. d/b/a Brownwood Regional Medical Center (Hospital) alleging breach of contract and tortious interference with pro-spective relationships. The trial court entered an order granting the Hospital=s motion for summary judgment and dismissed all of Dr. Powell=s claims against the hospital. Dr. Powell appeals only from the trial court=s order granting the Hospital=s motion for summary judgment on his claim for breach of contract. We affirm. In 1996, Dr. Powell, a surgeon, began his practice in Brownwood and was granted Aprivileges@ at the Hospital. In February 1999, the Hospital=s chief of staff and the chairman of the surgery committee met with appellant concerning complaints from the nurses about appellant=s disruptive behavior. In February 1999, the Hospital=s surgery committee also began discussing Dr. Powell=s treatment of a 4-year-old hernia patient and reviewing the charts of other patients who Dr. Powell treated in which there seemed to be areas of concern. On August 10, 1999, the surgery committee met and considered the accusations against Dr. Powell. Dr. Powell was present at the meeting and was able to answer questions from the surgery committee. At the conclusion of the meeting, the surgery committee recommended that the matter be referred to the Medical Executive Committee (MEC) for appropriate action. The MEC met on September 21, 1999, and Dr. Powell was present at the meeting. The MEC considered the complaints against Dr. Powell including his treatment of certain patients and other behavioral concerns. On September 30, 1999, the MEC notified Dr. Powell of its decision to place him on probation. By letter, the MEC stated that Dr. Powell was placed on probation for two years and provided the following terms of probation: 1. The Surgery Committee will continue to perform their routine review of charts as well as variance reports. The Surgery Committee will report review and variance information relating to your activity to the Medical Executive Committee on a quarterly basis throughout the probation period. 2. You are to attend, at your own expense, the Professional Assessment Program. A Constructive Approach to a Disruptive Problem located at Abbott Northwest Hospital in Minneapolis, MN by March 31, 2000. A copy of the assessment report must be submitted to the Medical Executive Committee. The hospital is willing to pay one-half the cost of the course, $6950.00. All other related expenses will be your responsibility. 3. You must meet with an appropriate physician mentor as appointed by the MEC monthly to provide support and guidance on dealing with people and situations. MEC will require quarterly verification from your mentor that you are complying with this stipulation. The MEC further stated that, if Dr. Powell did not meet the conditions of probation, additional action could result in the restriction or loss of his privileges at the Hospital. Dr. Powell requested a fair hearing on the decision to place him on probation. The chief of staff responded that Dr. Powell was not entitled to a fair hearing because the probation was not an Aadverse action.@ On November 8, 1999, the Hospital=s chief of staff requested that the MEC appoint an investigative committee to consider corrective action against Dr. Powell. The chief of staff asked that the investigative committee consider the ongoing allegations against Dr. Powell along with new allegations of his failing to advise the parents of the 4-year-old hernia patient of complications which occurred during the procedure Dr. Powell performed. The investigative committee issued a report on December 13, 1999, in which it found that the majority of the allegations against Dr. Powell were Asubstantiated@ and recommended that the MEC suspend Dr. Powell=s privileges indefinitely. The MEC notified Dr. Powell by letter on January 12, 2000, of its recommendation that his medical staff membership and clinical privileges be suspended indefinitely. The MEC informed Dr. Powell of his right to request a fair hearing pursuant to the fair hearing plan of the Medical Staff Bylaws. A fair hearing was held in which Dr. Powell was able to present testimony and evidence. Each charge was discussed. The fair hearing committee found that several of the charges, including Aimproper charting@ and behaving in a disruptive manner, were not supported by a preponderance of the evidence. The fair hearing committee also specifically found that the allegation that Dr. Powell refused to comply with the terms of probation to be unsupported by the evidence. The fair hearing committee found the allegations dealing with the manner in which Dr. Powell communicated information to the parents of the 4-year-old hernia patient to be supported by a preponderance of the evidence. Finding that the Amost serious allegations@ brought against Dr. Powell were substantiated, the fair hearing committee recommended terminating Dr. Powell=s privileges at the Hospital. The Board of Trustees at the Hospital notified Dr. Powell that his staff membership and clinical privileges would be terminated effective July 1, 2000. Dr. Powell filed suit against the Hospital alleging that the Hospital breached its contract with him by not providing a fair hearing after placing him on probation as required by the Medical Staff Bylaws. The Hospital filed a motion for summary judgment arguing that the Medical Staff Bylaws did not create a contract between the Hospital and Dr. Powell; that, even if the Medical Staff Bylaws did create a contract, the Hospital did not breach the contract; and, that in the event of a breach of contract, Dr. Powell was not harmed by any such breach. In his sole issue on appeal, Dr. Powell argues that the trial court erred in granting the Hospital=s motion for summary judgment. When reviewing a traditional motion for summary judgment, the following standards apply: (1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non‑movant will be taken as true; and (3) every reasonable inference must be indulged in favor of the non‑movant and any doubts resolved in its favor. TEX.R.CIV.P. 166a; Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487, 491 (Tex.1988); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548‑49 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 676 (Tex.1979). In order for a defendant to be entitled to summary judgment, it must either disprove an element of each cause of action or establish an affirmative defense as a matter of law. American Tobacco Company, Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). When a trial court=s order granting summary judgment does not specify the ground or grounds relied upon for its ruling, summary judgment will be affirmed on appeal if any of the summary judgment grounds advanced by the movant are meritorious. Dow Chemical Company v. Francis, 46 S.W.3d 237, 242 (Tex.2001); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).[1] Dr. Powell argues that the Medical Staff Bylaws created a contract between himself and the Hospital and that the Hospital breached that contract by not providing him with a fair hearing when he was placed on probation. Procedural rights established in hospital bylaws can constitute contractual rights. Stephan v. Baylor Medical Center at Garland, 20 S.W.3d 880, 888 (Tex.App. - Dallas 2000, no pet=n); Gonzalez v. San Jacinto Methodist Hospital, 880 S.W.2d 436, 438 (Tex.App. - Texarkana 1994, writ den=d). However, rights created by medical staff bylaws are not necessarily binding on the hospital. Stephan v. Baylor Medical Center at Garland, supra; Gonzalez v. San Jacinto Methodist Hospital, supra; Weary v. Baylor University Hospital, 360 S.W.2d 895 (Tex.Civ. App. - Waco 1962, writ ref=d n.r.e.). Medical staff bylaws that do not attempt to define or limit a hospital=s power as it acts through its governing board do not create contractual obligations for a hospital. Stephan v. Baylor Medical Center at Garland, supra. This is true despite the fact that the board may have approved and adopted the medical staff bylaws. Stephan v. Baylor Medical Center at Garland, supra. The Medical Staff Bylaws of the Hospital state that they are established and approved by the Board. However, the Medical Staff Bylaws provide that Athe staff must cooperate with and is subject to the ultimate authority of the Board of Directors.@ Therefore, because the Medical Staff Bylaws do not attempt to define or limit the Hospital=s power to act through its Board, the Medical Staff Bylaws do not create contractual obligations for the Hospital. Stephan v. Baylor Medical Center at Garland, supra; see Weary v. Baylor University Hospital, supra. There is no evidence to support Dr. Powell=s claim for breach of contract. Moreover, assuming without agreeing that the Medical Staff Bylaws did create a contract which entitled Dr. Powell to a fair hearing after being placed on probation, Dr. Powell cannot show any harm resulting from a breach of that contract. The fair hearing committee found that the allegation that Dr. Powell failed to comply with the terms of his probation was not supported by a preponderance of the evidence. Dr. Powell=s privileges were terminated after a fair hearing in accordance with the Medical Staff Bylaws and the fair hearing plan. There is no evidence that Dr. Powell was harmed by the initial denial of a hearing after being placed on probation. The trial court did not err in granting the Hospital=s motion for summary judgment on Dr. Powell=s claim for breach of contract. The judgment of the trial court is affirmed. W. G. ARNOT, III CHIEF JUSTICE September 9, 2004 Not designated for publication. See TEX.R.APP.P. 47.2(a). Panel consists of: Arnot, C.J., and Wright, J., and McCall, J. [1]In a letter to the trial attorneys, the trial court states its reasons for granting the Hospital=s motion for summary judgment. However, the order granting the Hospital=s summary judgment does not specify the grounds relied upon for its ruling. Because the trial court=s order does not specify the grounds relied upon for its ruling, we will affirm if the Hospital is entitled to summary judgment on any ground asserted in its motion. See Strather v. Dolgencorp of Texas, Inc., 96 S.W.3d 420, 423 (Tex.App. ‑ Texarkana 2002, no pet=n).