Whitby v. Dr. John Warner Hospital et al
Filing
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OPINION entered by Judge Sue E. Myerscough on 4/29/2011. Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (d/e 2 and d/e 3) is DENIED. (MAS, ilcd)
E-FILED
Friday, 29 April, 2011 04:37:28 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
COLETTE R. WHITBY, M.D.,
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Plaintiff,
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v.
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DR. JOHN WARNER HOSPITAL (“DJWH”),
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a municipal hospital; EARL N. SHEEHY,
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individually and as CEO of DJWH; JULIE
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NORTH, individually and as President of the
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Board of DJWH; CINDY SAYLORS, individually )
and as Director of DJWH; HERALD WEINBERG,)
individually and as Director of DJWH; RANDY )
WORKMAN, individually and as Director of
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DJWH; PATRICK E. PETERSON, individually
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and as Director of DJWH; DEB TILLEY,
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individually and as Director of DJWH; BETTY
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ANN NELSON, individually and as Director of
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DJWH; CITY OF CLINTON (“Clinton”), an
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Illinois Municipality; TOM EDMUNDS;
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individually, as Commissioner and Acting Mayor )
of Clinton; BRYAN HICKMAN, individually and )
as Commissioner of Clinton; JOHN WISE,
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individually and as Commissioner of Clinton;
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and JERRY MILTON, individually and as
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Commissioner of Clinton,
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Defendants.
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No. 11-3112
OPINION
SUE E. MYERSCOUGH, United States District Judge.
This cause is before the Court on the Motion for a Temporary
Restraining Order and Preliminary Injunction (d/e 2 and d/e 3) filed by
Plaintiff Colette R. Whitby, M.D. Defendants have filed a response.
For the reasons that follow, this Court finds that a hearing is not
necessary and the Motion for Temporary Restraining Order and
Preliminary Injunction is DENIED.
I. COMPLAINT AND MOTION FOR PRELIMINARY INJUNCTION
In her Complaint, Plaintiff alleges that in November 2009, she
entered into a three-year written contract of employment (Agreement)
with Dr. John Warner Hospital (Hospital), a municipal hospital
organized and operating in Clinton, Illinois. The Agreement provided
that the Hospital agreed to employ Plaintiff to render medical services to
the Hospital’s patients who were assigned to Plaintiff by the Hospital.
Plaintiff’s employment commenced on February 1, 2010. In
February 2011, Defendant Earl Sheehy, the chief executive officer of the
Hospital and a member of the Hospital’s Board of Directors, told the
Plaintiff he was likely not going to include her services in the hospital
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budget for fiscal year 2011-2012. On March 1, 2011, Defendant Sheehy
informed Plaintiff in writing that the existing contract did not allow
Plaintiff’s surgical practice to be sustainable and that unless she agreed to
numerous changes in her agreement, no funds would be allocated in fiscal
year 2012 for a surgical practice. On April 20, 2011, Defendant Sheehy
notified Plaintiff in writing that the City of Clinton had not approved her
contract for the budget year and her last day of work would be April 29,
2011.
On April 27, 2011, Plaintiff filed suit pursuant to 42 U.S.C. §§
1981, 1983, and 1985 alleging (1) she was denied due process (Count I);
(2) the members of the Hospital Board conspired to deprive Plaintiff of
her due process (Count II), and (3) the commissioners of the City
Council conspired to deprive Plaintiff of her due-process rights (Count
III). She also brought two pendent state claims, one for breach of
contract (Count IV) and one for retaliatory discharge (Count V).
On April 27, 2011, Plaintiff filed her Motion for a Temporary
Restraining Order and Preliminary Injunction. Plaintiff requests this
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Court stay her termination of employment at the Hospital for the
duration of this case or, in the alternative, stay her termination for 90
days with the provision that the Hospital assist Plaintiff in the global
follow-up care for her patients and disseminating the appropriate notices
to her patients before the cessation of her medical care services.
II. ANALYSIS
Defendants first assert this Court should dismiss the case for lack of
jurisdiction because the Agreement contains a forum selection clause
providing that all claims arising from the Agreement are to be brought in
DeWitt County, Illinois. However, a forum selection clause raises a
question of venue, not subject-matter jurisdiction. Mitchell Health
Technologies, Inc. v. Naturewell, Inc., 2002 WL 32362650, at *2 (W.D.
Wis. 2002), citing Freitsch v. Refco, Inc., 56 F.3d 825, 830 (7th Cir.
1995).
A.
Standard of Review
A party seeking a preliminary injunction must initially demonstrate
(1) some likelihood of succeeding on the merits; (2) no adequate remedy
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at law exists; and (3) irreparable harm if preliminary relief is denied.
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United States
of America, Inc., 549 F.3d 1079, 1086 (2008). If the moving party does
not demonstrate any one of the three initial requirements, the request for
a preliminary injunction must be denied. Id. If, however, the party has
met the initial threshold, the Court then “weighs the irreparable harm
that the moving party would endure without the protection of the
preliminary injunction against any irreparable harm the nonmoving party
would suffer if the court were to grant the requested relief.” Id.
In
balancing the harm to each party, the Court should also consider the
public interest. Judge v. Quinn, 612 F.3d 537, 546 (7th Cir. 2010).
B.
Plaintiff Has Failed to Show Likelihood of Success on the Merits,
No Adequate Remedy at Law, or Irreparable Harm
To establish a likelihood of success on the merits, Plaintiff must
demonstrate that she has “some prospect of prevailing on the merits.”
Hoosier Energy Rural Elec. Co-Op., Inc. v. John Hancock Life Ins. Co.,
582 F.3d 721, 730 (7th Cir. 2009). The Agreement, which is attached to
Plaintiff’s Affidavit, provides that Plaintiff’s employment could be
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terminated for a variety of reasons, including the following:
In the event that no funds or insufficient funds are
appropriated or budgeted by the City of Clinton in
any fiscal period for payments due under this
Agreement, the Employer will immediately notify
Physician of such occurrence and this Agreement
shall terminate on the last day of the fiscal period
for which appropriations were received without
penalty or expense to Employer of any kind
whatsoever. Notwithstanding the foregoing, if this
Agreement is terminated for cause pursuant to this
Section[,] the provisions of Section 5.2(d) shall
apply.
Plaintiff’s pleadings show she was forewarned in February 2011 that her
services were likely not going to be included in the hospital budget for
fiscal year 2011-2012. In March 2011, she was notified in writing that
unless she agreed to numerous changes in her Agreement, no funds would
be allocated in fiscal year 2012 for a surgical practice. Finally, on April
20, 2011, she was told that the City Council did not appropriate funds
for her salary on April 20, 2011. Plaintiff has not shown a likelihood of
success on the merits of her claim that her termination violated due
process.
Moreover, Plaintiff has failed to demonstrate she has no adequate
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remedy at law or would suffer irreparable harm. Plaintiff asserts she has
no adequate remedy at law because money damages will not provide her
relief for the injury to her practice, her reputation, or the relief to which
she is entitled, which she identifies as “the continuum of her surgical
practice while this case is heard on the merits.” Plaintiff has not shown
she has no adequate remedy at law.
“The Supreme Court set a high standard for obtaining preliminary
injunctions restraining termination of employment in Sampson v.
Murray, 415 U.S. 61 (1974).” Bedrossian v. Northwestern Memorial
Hospital, 409 F.3d 840, 845 (2005). (finding district court did not abuse
its discretion in finding the plaintiff failed to show irreparable harm
where the plaintiff alleged lost income and damaged reputation); see also,
e.g., Roudachevski v. All-American Care Centers, Inc., 2011 WL
1213087, at *6 (E.D. Ark. 2011) (even assuming the doctor’s reputation
would be harmed by the termination of his privileges at the facility, such
injury could be remedied by a favorable judgment and money damages).
Moreover, Plaintiff has not shown irreparable harm. Plaintiff
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asserts irreparable harm will result because (1) she could potentially be
subject to a charge under 225 ILCS 60/22(A)(16) for willfully
abandoning her patients; and (2) a health-care practitioner leaving her
practice must provide the public with 30 days notice (735 ILCS 5/82001(f)), and the failure to do so could subject her to a disciplinary
charge under 225 ILCS 60/22(A)(37). See Ramirez v. Smart Corp., 371
Ill. App. 3d 797 (2007) (holding that the purpose of 735 ILCS 5/8-2001
is to allow patients access to their medical records in a timely manner).
While the Department of Professional Regulation may discipline a
physician who willfully abandons her patients or fails to provide copies of
medical records as required by law (see 225 ILCS 60/22(16), (37))
whether Plaintiff would be so disciplined is merely speculative. More
than speculation of irreparable harm is necessary to afford a party
preliminary injunctive relief. See Matta-Ballesteros ex rel. Stolar v.
Henman , 697 F.Supp. 1036, 1038 (S.D. Ill. 1988); see also, e.g.,
Roudachevski v. 2011 WL 1213087, at *6 (finding the doctor failed to
show a threat of irreparable harm; the court rejected testimony that
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termination exposed the doctor to the possibility of disciplinary measures
for abandoning his patients where the doctor acknowledged he had not
been sued or had grievances filed against him). Further, the Hospital
remains operating and will presumably be available to provide the
medical records to the patients and provide medical care. Although
Plaintiff, in her Affidavit, asserts she asked Defendants whether the
Hospital would have a trained surgeon employed upon her departure to
follow-up with her patients. She alleges only that she received no
assurances. This is insufficient to show irreparable harm.
III. CONCLUSION
For these reasons, Plaintiff’s Motion for Temporary Restraining
Order and Preliminary Injunction (d/e 2 and d/e 3 ) is DENIED.
Dated:
April 29, 2011
s/Sue E. Myerscough
SUE E. MYERSCOUGH
United States District Judge
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