This is an action for damages brought by a physician against the chief administrator of Emanuel Hospital as well as another physician and two residents in training in radiology at the hospital, charging a successful conspiracy by the defendants to deprive plaintiff of his staff privileges in the hospital. Plaintiff appeals from a summary judgment for defendants.
Plaintiff is a radiologist and was a partner in a firm of radiologists, Lloyd Center X-ray. The partners were employed by the hospital as the sole persons doing the hospital's radiology work. As a member of the hospital staff, plaintiff was in charge of radiology education for interns and residents. Defendant Larson was the administrator of the hospital. Defendant English was a radiologist working at the hospital who was employed by the firm of which plaintiff was a partner. English was also a member of the hospital's medical staff. Defendants Seapy and Helm were radiology residents in training at the hospital who were employed by the hospital, and who were paid by Lloyd Center X-ray for some week-end work at the hospital.
On January 30, 1973, Larson, as chief executive of the hospital, summarily suspended plaintiff's hospital staff privileges "in the best interest of patient care." Pursuant to hospital bylaws and regulations, this action was temporary and subject to review by a hearing before the Medical Staff Executive Committee (executive committee) and subject to review and hearing before a review committee before final action by the Board of Directors (board) of the hospital. The executive committee sustained the suspension and continued it until a later date. The review committee held hearings and recommended to the executive committee that the suspension not be affirmed and be lifted. This recommendation was not accepted by the executive committee which then made the suspension permanent and the board affirmed the action of the executive committee on January 24, 1974. This action followed.
Plaintiff's cause of action rests upon the theory of the wrongful interference by defendants with plaintiff's business relationship with the hospital. Plaintiff being a member of the firm which had the contract
Before this court can decide whether, as plaintiff contends on appeal, the granting of the summary judgment was improper, because he had tendered a prima facie case entitling him to its submission to a jury,
In Top Service we decided that the defendant's improper intent, motive or purpose to interfere was a necessary element of the plaintiff's case, rather than a lack thereof being a matter of justification or privilege to be asserted as a defense by defendant. Thus, to be entitled to go to a jury, plaintiff must not only prove that defendant intentionally interfered with his business relationship but also that defendant had a duty of non-interference; i.e., that he interfered for an improper purpose rather than for a legitimate one, or that defendant used improper means which resulted in injury to plaintiff. Therefore, a case is made out which entitles plaintiff to go to a jury only "when interference resulting in injury to another is wrongful by some measure beyond the fact of the interference itself." 283 Or. at 209, 582 P.2d at 1371.
Plaintiff introduced in evidence the transcripts of testimony before the executive and review committees, which transcripts defendants contend may not be used as evidence in this case because the evidence has been proscribed by statute. A plaintiff makes a jury case by submitting evidence of the defendant's testimony in the original hearing (such as the hearing before either the executive committee or the review committee) to certain claimed facts which were detrimental to plaintiff and which are a basis for the action taken against him, and then testifying himself in his action for interference contrary to defendant's testimony in the original hearing. From this the jury can conclude that the defendant lied in his testimony about plaintiff which resulted in the action taken against him at the original hearing and infer therefrom an improper motive (to injure plaintiff) on defendant's part. As a result, plaintiff has it within his ability almost always to make out a case for submission to the jury. Realizing this, and
The executive and the review committees that held the hearings in this case were "medical staff committee[s] in connection with the * * * discipline of the medical staff of hospitals." It would therefore seem that subsections (1) and (2) of ORS 41.675 apply to the transcripts of testimony before those committees. Further, there is no reason to suppose that the "medical review committee" referred to in subsection (3) of ORS 41.675 applies to different kinds of committees from those described in subsection (1).
Plaintiff's answer to this reasoning is that despite the broad language of the statute, the legislature intended the statute to apply only to "tissue committees," which meet to discuss the treatment of patients. The discussions at such committee meetings, to be of any value, must be frank, even brutal, and if the discussions of the staff at such meetings were admissible in malpractice actions or other litigation, they would probably not be as frank.
Our examination of the legislative history shows that the chief emphasis was indeed on protecting the confidentiality of tissue committee discussions; however, the history does not explain why the legislature went on to add "other medical staff committees in connection with the professional training, supervision or discipline of the medical staff of hospitals * * *." (Emphasis added.) Had the legislature intended to protect only tissue committees, it need not have added the other language. Further, there is no indication in the legislative history that the statute was not intended to cover disciplinary committees such as those in this case.
Plaintiff also argues that subsection (3), even if applicable, should not apply to this case because the subsection was not adopted until after the committee hearings were held. Assuming that this is correct, the provisions of subsections (1) and (2) would appear to accomplish the same result
Plaintiff also argues that most evidentiary privileges are based on confidentiality; that the presence of third parties destroys the confidentiality and thus the privilege; and that the executive committee allowed third parties (a court reporter and plaintiff's attorney) to be present at the hearing. Plaintiff asserts that the committee thereby waived the privilege. However, the privilege in this case is based not on confidentiality but on the need to encourage frank communication. It is not to preserve the privacy of the communication but to prevent the participants from incurring legal liability for what they say. Thus, the presence of third parties at the hearing is irrelevant.
ORS 18.105(4) provides that affidavits presented to aid a decision on summary judgment "shall be made upon personal knowledge, shall set forth facts which would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Under the Federal Rules from which Oregon's summary judgment rule was adopted, depositions must set forth such facts as would be admissible in evidence and the deponent must have personal knowledge of that to which he testifies. Liberty Leasing Co. v. Hillsum Sales Corporation, 380 F.2d 1013 (5th Cir.1967). There seems to be no reason why the Oregon rule should be different.
Having established the ground rules for that which plaintiff must prove to present a prima facie case and the limitations upon the evidence that may be used to prove it, we proceed to the sixty-six depositions plus numerous affidavits that have been submitted for the purpose of determining whether plaintiff tenders a jury issue.
The radiology department at the hospital had been in turmoil for some time. The head of the department had been ill for a considerable length of time and finally resigned. Facilities were crowded and business was increasing. There had been some conflict between the head of the department and plaintiff. Upon resignation of the department head, plaintiff was the next senior individual who was principally engaged with Lloyd Center X-ray's hospital practice, but he was not appointed as department head. Rather, one of plaintiff's partners, Dr. Haugen, who was considerably junior to plaintiff, was appointed. Many technicians in the department were unhappy with plaintiff, and about 12 of them in a group called upon Larson to complain of plaintiff. There were complaints that plaintiff was habitually late for special procedures and that patients and hospital personnel were kept waiting. One of the technicians had been instructed to keep a record of plaintiff's tardiness. Plaintiff learned of this and had been unpleasant in his questioning of subordinates about it.
Defendants Seapy and Helm were dissatisfied with the training they were receiving as residents, contending it was inadequate and that others were being given preference in training by plaintiff to defendants' detriment. A report had been made to the medical association which indicated that Seapy may have practiced medicine without an Oregon license, and Seapy felt that plaintiff was responsible for this. He also complained to the over-all director of medical education that plaintiff had attempted to keep him from special education with the Air Force because he would not recommend him as being qualified. Plaintiff had been extremely angry at both Seapy and Helm and had reprimanded them because they took 45 minutes off and attended a fracture conference at the hospital. They felt their position at the hospital was continually threatened by plaintiff.
Larson and plaintiff had clashed over plans for the physical enlargement of the
Plaintiff testified that English, Seapy and Helm all had expressed an interest in becoming members of Lloyd Center X-ray and that they had been told by him that they were not acceptable. He claims that from this interest and their subsequent criticism of him it should be inferred that they desired to remove his staff privileges in order to prevent his continuing as a member of the partnership because he was a block to their ambitions. However, terminating plaintiff's staff privileges did not terminate his partnership position in Lloyd Center X-ray, which performed services for others as well as for the hospital. In addition, plaintiff also testified that after his suspension he asked Seapy and Helm, when together, if they would be interested in joining the Lloyd Center X-ray partnership. He testified that Helm said he was interested but that Seapy said he was not. This seems contrary to his avowed belief that they conspired to have his privileges suspended because they wanted to get rid of him to make room for themselves. When asked about the reason for this latter conversation, he indicated he was just testing them.
There is no testimony that English complained to Larson about plaintiff and, therefore, there is no proof that he caused plaintiff's summary temporary suspension by Larson. There was evidence that English complained to others about plaintiff's actions and that Larson was aware of the problems between plaintiff and the radiologists and residents in the department, but no evidence that this information came to Larson as the result of English's complaints. As previously stated, English's testimony before the hospital committees may not be used to show he caused the permanent suspension.
Neither is there any admissible evidence from which it can be inferred that Helm caused Larson to suspend plaintiff. While Helm complained, there is no evidence that he ever complained to Larson about plaintiff prior to the summary suspension. Larson testified that he knew of the residents' complaints because he "heard the problem from the residents." However, there were other residents than Helm and there was testimony that Seapy had complained to Larson. Without further testimony, it cannot be inferred that Helm's complaints caused Larson to summarily suspend plaintiff. Again, his testimony before the hospital committees may not be used in an action against him.
There is evidence, other than from the hospital hearings, that Seapy complained directly to Larson about plaintiff's deleterious effect upon patient care and that he related to Larson an occurrence in which Seapy claimed plaintiff deliberately delayed another doctor from using the hospital facilities for the benefit of a critically ill patient. Plaintiff denied that he intentionally delayed the other doctor's treatment of his patient. Seapy did not make this complaint until 14 months after the occurrence. In the interim there had occurred, by his own testimony, many things from which a jury could find he developed an intense dislike of plaintiff. It is our conclusion that from this evidence a jury could find that Seapy's complaints were a cause of Larson's summary suspension of plaintiff, that they were motivated by a desire to "get even" with plaintiff because of plaintiff's past mistreatment of him, and that there was no basis for a claim that plaintiff had intentionally
As indicated, the rule requires that a defendant intentionally interfere with a plaintiff's contract. In the present case it has not been shown that Seapy specifically intended to have plaintiff's staff privileges taken from him or that he even knew such a proceeding was possible. However, it could be concluded that he intended to have plaintiff disciplined; had he intended otherwise, there would have been no object in going to Larson for the specific purpose of making a complaint. It would not seem, in order to have a cause of action, that it should be necessary for Seapy to have contemplated or to have had knowledge of the particular kind of discipline that was within Larson's power to inflict.
There is evidence, other than from the hospital hearings, that Larson and plaintiff had previously clashed over the physical restructuring of the x-ray department's quarters and that Larson told others at the time of plaintiff's suspension that one of the principal reasons he suspended plaintiff was because a considerable number of the technicians indicated, at the time the group called upon him, that they were going to quit if plaintiff continued to work in the department. There was also evidence, other than the record of the hospital hearings, from which it could be determined that, in fact, no technician had so indicated to Larson. Therefore, a jury could find that Larson lied about one of the principal reasons he gave for summarily suspending plaintiff and could infer therefrom that he had an improper purpose or he would not have lied concerning it. We suggest not that the evidence compels such inferences but only that it suffices to present an issue of fact for a jury.
Both Larson and Seapy contend that plaintiff's evidence does not overcome their defense of justification or privilege because of (1) their right to interfere in the interest of the hospital and (2) their right to interfere in the public interest. They point out that they are employees of the hospital and owe a duty to take action if the hospital's interest in patient care is thwarted. In Wampler v. Palmerton, supra, we said, as follows:
The issue is whether the evidence demonstrates that the actions of Larson and Seapy were taken for the benefit of the hospital or whether they were taken to satisfy private grudges. We believe that the evidence previously discussed creates a question of fact on this issue, and there is no basis for justification or privilege as a matter of law unless there is an absolute privilege.
Defendants contend there is such an absolute privilege because the hearing was quasi-judicial, citing two libel cases,
All of the many modern cases cited in Ramstead were complaints made to or hearings before governmental or quasi-governmental bodies which had authority to investigate and take some action which would cause governmentally authorized action, as, for example, the revocation or granting of governmentally authorized licenses as in Ramstead and Moore. In dictate in Ramstead the court pointed out four cases, the most recent of which is now one hundred years old, which indicated that an absolute privilege might exist in communications made to private organizations. However, it is our conclusion that usually there should not be an absolute privilege granted to any employee of a private employer concerning action taken for private improper motives, as is claimed in the situation of Larson; nor should there be absolute privilege for an intentionally untrue statement made about a third party by an employee for his own purposes to his private employer, as is claimed in the situation of Seapy. It is true that care of patients in hospitals is of great importance and of vital concern to everyone. However, private businesses of many kinds, such as processors of food and manufacturers of drugs, automobiles and other potentially dangerous contrivances, similarly have public importance to general welfare and are of public concern or interest. There are no logical terminal facilities for the application of absolute privilege if applied as defendants suggest.
Defendants urge that there is a qualified privilege. The rule we have applied, which denies an action for interference when made in good faith for a proper purpose, amounts to the application of a qualified privilege, with the burden of negating this qualified privilege placed upon plaintiff as part of his affirmative case.
The next issue is whether plaintiff made a sufficient showing of conspiracy to allow the two other defendants to be held liable for Larson's and Seapy's acts. We conclude that he did not. Plaintiff's discussion of this matter consists of a series of citations for the proposition, which we do not contest, that conspiracy is very difficult to prove. His discussion of the evidence does not persuade us that there is an issue of fact on the conspiracy allegation. Some of the evidence on which he relies is inadmissible under ORS 41.675. Some of it, such as the conclusions by members of the executive committee that there was a possibility of a conspiracy or that some of the technicians (not defendants) testified "as if by script," are either inadmissible as conclusions unsupported by any first-hand knowledge
Defendants call to our attention that subsequent to the granting of the summary judgments in favor of defendants in this case and during the pendency of this appeal, the trial judge in the companion case of Straube v. Emanuel Lutheran Charity Board, a Corporation, dba Emanuel Hospital, 287 Or. 375, 600 P.2d 381, 1979, held that there were adequate grounds for the suspension of plaintiff and that the hospital was not responsible to plaintiff because of the suspensions. While defendants do not specifically say so, in effect, what they are suggesting is a form of collateral estoppel. They claim the hospital can only be responsible for the suspension of plaintiff as the result of the actions of Larson, and that there can be no question but that in temporarily suspending plaintiff Larson was acting in the course of his employment. Therefore, they reason that the subsequent finding that the hospital had adequate grounds for the suspension of plaintiff is the equivalent of a finding that Larson had adequate grounds, and this finding cures any prior error that may have been committed by the trial judge in granting defendants summary judgments in this case.
A difficulty with defendants' position is that the decision in the other case upon which the claim of an estoppel is based did not occur until after the summary judgments in this case were granted at the trial level and therefore cannot be considered here. In Lantis v. Lantis, 239 Or. 126, 396 P.2d 755 (1964), it was contended that a Nevada divorce decree worked an estoppel against plaintiff on an appeal from a decree enforcing a property settlement, even though the Nevada divorce decree was entered subsequent to the decree enforcing the property settlement. We said:
This case is being sent back for further proceedings as to Larson and Seapy. If an estoppel has occurred, it can be asserted at the trial level by a supplemental pleading prior to trial.
On cross-appeal, defendants contend that the trial court erred in refusing to award them costs for taking depositions. ORS 20.020 provides:
See also American Sanitary Service v. Walker, 276 Or. 389, 395, 554 P.2d 1010 (1976); Baumbach v. Poole, 266 Or. 154, 161, 511 P.2d 1219 (1973). ORS 20.020 was passed before the summary judgment statute, and the latter contains no guide for the cost problem. It may certainly be argued that in the context of summary judgments, depositions are necessary, being the basis for the judge's decision in many cases. However, Kendall emphasizes that ORS 20.020 is intended to allow expenses of depositions that are used or intended to be used at trial. Kendall also states that allowing recovery for discovery depositions would increase counsel's tendency to take too many depositions (in this case there were 66 depositions for the court's use on summary judgment). Since all depositions are potentially relevant in the trial court's determination of whether to grant summary judgment — see ORS 18.105(3) — allowing recovery in this context would encourage the multiplication of depositions that Kendall sought to avoid. We hold that the trial judge did not err in refusing to award costs for the taking of depositions.
The decision of the trial court is affirmed in part, reversed in part, and remanded for trial against defendants Larson and Seapy.