Khan v. St. Mary Hospital et al

Filing 68

MEMORANDUM Opinion and Order signed by the Honorable Virginia M. Kendall on 11/17/2020. The Court grants Defendants' Motion to Dismiss 50 . Plaintiff's discrimination claim is dismissed without prejudice; his antitrust claim is dismissed w ith prejudice; and because the HCQIA does not provide for a private right of action, this claim is dismissed with prejudice. Plaintiff's claims as to certain Defendants are dismissed for failure to properly effect service and for failure to prosecute. The case is therefore dismissed. If Kahn exhausts his administrative remedies with the EEOC, he may refile his discrimination claim. See Opinion for further details. Mailed notice(lk, )

Case: 1:20-cv-03819 Document #: 68 Filed: 11/17/20 Page 1 of 11 PageID #:454

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

NAZIR KHAN
Plaintiff,
v.
PRESENCE ST. MARY AND ST.
ELIZABETH HOSPITALS, et al.,
Defendants.

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No. 20 C 3819
Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER
Defendants Presence Chicago Hospitals Network d/b/a Presence Saints Mary and Elizabeth
Medical Center (“Presence” or the “Hospital”), Laura Concannon, MD, Nora Byrne, JD, Norma
Thornton, Thomas Malvar, MD, David Hines, MD, Ada Arias, MD, Raghu Ramadurai, MD,
Ernesto Cabrera, MD, Olga Saavedra, MD, Michael Maghrabi, DPM, Alejandra Ditryk, RN, and
the Board of Directors for Presence Saints Mary and Elizabeth Medical Center have filed a Motion
to Dismiss Plaintiff’s Amended Complaint. [Dkt. 50]. Defendants argue that this Court does not
have subject matter jurisdiction and Plaintiff has failed to state a claim. Certain Defendants also
argue that proper service has not been effected. For the reasons discussed below, the Court grants
Defendants’ Motion to Dismiss.
BACKGROUND
On a motion to dismiss under Rule 12(b)(6), the Court accepts the Complaint’s wellpleaded factual allegations and draws all reasonable inferences in the non-moving party’s favor,
but not its legal conclusions. See Smoke Shop, LLC v. United States, 761 F.3d 779, 785 (7th Cir.
2014). The facts below come from Plaintiff’s Amended Complaint (Dkt. 35) and the Court accepts

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them as true for purposes of reviewing this Motion. See Vinson v. Vermillion Cty., Ill., 776 F.3d
924, 925 (7th Cir. 2015).
Plaintiff has practiced cardiovascular and thoracic surgery since 1983. (Doc. 35 at 2).
Plaintiff is a highly skilled and competent surgeon who can perform complicated cardiovascular
and thoracic surgeries. (Id. at 2–3). In 1998, Plaintiff became a member of the medical staff at
Saint Elizabeth’s Hospital which later joined St. Mary Hospital as Presence Saints Mary and
Elizabeth’s Hospital in 2005 (“the Hospital”). (Id. at 3). In November of 2017, Dr. Khan alleges
that Martin Judd, the CEO of the Hospital and Laura Concannon, M.D., Chief Medical Officer of
the Hospital, formed a conspiracy to coerce him into taking a leave of absence from the Hospital.
(Id. at 4, 8–9). Defendants Judd and Dr. Concannon acted in concert with two presidents of the
medical staff, Dr. Ada Arias and Dr. Raghu Ramadurai, and the hospital attorney to remove
Plaintiff. (Id. at 4). The intent of the conspiracy was to remove the Plaintiff from the medical staff
so that the hospital could use its own radiologists to perform and charge for these endovascular
procedures that Plaintiff was performing, therein removing competition from the other
cardiovascular and thoracic surgeons on staff. (Id.).
On November 3, 2017, Judd and Dr. Concannon called Plaintiff into a meeting where Judd
explicitly asked Plaintiff to resign from the medical staff. (Id. at 7). Plaintiff asked why he was
being asked to resign and was told there was a “pattern,” but without any specific details as to what
the pattern was. (Id.). Judd and Dr. Concannon told Plaintiff to immediately sign a Leave of
Absence letter, which Plaintiff did under duress. (Id.). The Leave of Absence was effective
November 4, 2017. (Id.). Plaintiff alleges the Leave of Absence letter violated hospital bylaws
because it did not state the approximate duration of the leave of absence. (Id. at 8). Additionally,
pursuant to the alleged conspiracy, on November 17, 2017, the Medical Executive Committee

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(MEC) appointed an Investigative Committee pursuant to the hospital bylaws to address the quality
concerns related to Dr. Khan’s practice at the Hospital. (Id. at 7–8, 12). The Presence Quality
Assurance Committee identified four surgical cases performed by Dr. Khan that raised clinical
concerns, and identified clinical concerns related to a high infection rate, responsiveness to calls
and pages, and case management trends. (Id. at 10–11). The MEC notified Plaintiff that he was
required to get a neuro-psychological and a physical exam to address the clinical concerns from
the Investigative Committee, which Dr. Khan refused to undergo, arguing there was no justifiable
reason for him to proceed with the testing. (Id. at 12, 23). On December 7th, 2017, Plaintiff sent
a letter asking that his six-month log of surgical cases be sent to an outside reviewer with respect
to the evaluation of outcomes of surgery and infection rate. (Id. at 11). Dr. Khan’s request for
outside review was ignored. (Id.). Dr. Khan’s privileges were voluntarily terminated on June 18,
2018. (Id. at 24).
Dr. Khan brings claims of Violation of Hospital Bylaws, Fraudulent Actions and Wrongful
Termination of Plaintiff’s Hospital Privileges, Violation of the Health Care Quality Improvement
Act, Breach of Contract, Violation of the Federal Antitrust Laws, Violation of the Civil Rights Act
of 1991, Defamation, and Mental Distress.
LEGAL STANDARD
A motion to dismiss for failure to state a claim challenges the sufficiency of the complaint.
Berger v. National Collegiate Athletic Association, 843 F.3d 285, 289–90 (7th Cir. 2016). When
considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must
construe the complaint in the light most favorable to the non-moving party, accept well-pleaded
facts as true, and draw all inferences in the non-moving party’s favor. Bell v. City of Chicago, 835
F.3d 736, 1146 (7th Cir. 2016). The complaint must contain a “short and plain statement of the

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claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A party need not plead
“detailed factual allegations,” but “labels and conclusions” or a “formulaic recitation of the
elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). A complaint must contain sufficient factual matter that when “accepted as true . . . ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. 570). In assessing the sufficiency of the complaint, the "reviewing court [must]
draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. When there are wellpleaded factual allegations, the Court assumes their veracity and then determines whether they
plausibly give rise to an entitlement to relief. Id.
Rule 12(b)(5) provides that a defendant may seek dismissal for “insufficient service of
process.” Fed.R.Civ.P. 12(b)(5). When a defendant challenges the sufficiency of service, the
plaintiff bears the burden of demonstrating that proper service occurred. See Cardenas v. City of
Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011); Homer v. Jones–Bey, 415 F.3d 748, 754 (7th Cir.
2005). The Court may consider affidavits, other documentary evidence, depositions, and oral
testimony when considering whether summons was properly served.

Dumas v. Decker, 10 C

7684, 2012 WL 1755674, *2 (N.D. Ill. May 16, 2012) (citing Falconer v. Gibsons Rest. Grp., LLC,
2011 WL 43023, at *1 (N.D. Ill. Jan.6, 2011 WL 43023); 5B Wright & Miller, Federal Practice
and Procedure § 1353, at 344–45 (3d ed. 2004). Neither party requested an evidentiary hearing,
so the motion will be resolved based on the parties’ briefs and attached evidentiary materials.
DISCUSSION
I.

Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

Plaintiff has filed four complaints – his original complaint and three amended complaints.
The Court granted his first amendment and the Complaint at issue was filed on August 24, 2020.

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In spite of warning that Court would not accept other amendments without leave of Court, Plaintiff
filed two more amended complaints. Defendants argue that the only claims that may trigger the
Court’s Federal Question jurisdiction are the alleged violations of the federal antitrust laws,
violations of HCQIA and the citation to the Civil Rights Act of 1981, but that Plaintiff has failed
to state a claim under each statute. Defendants assert that since Plaintiff has not brought a federal
claim, the remaining state law claims should be dismissed. The Court views Plaintiff’s pro se
pleadings liberally. See Taylor v. JPMorgan Chase Bank, N.A., 958 F.3d 556, 562 (7th Cir. 2020);
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (a “document filed pro se is to be liberally construed,
and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.”) The Court has had experience with Kahn in a previous
matter where he was sanctioned for his litigation conduct. See Khan et al. v. Hemosphere Inc., et
al., No. 18-5368. Even viewing Plaintiff’s claims liberally, his antitrust, HCQIA, and Civil Rights
claims must be dismissed. The Court declines to exercise supplemental jurisdiction over Plaintiff’s
remaining state law claims.
A.

Antitrust Claims

Plaintiff brings claims under Section 1 and Section 2 of the Sherman Antitrust Act for the
loss of his clinical privileges at the Hospital. 1 There are three elements to a § 1 claim: “‘(1) a
contract, combination, or conspiracy; (2) a resultant unreasonable restraint of trade in the relevant
market; and (3) an accompanying injury.’” Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d
328, 335 (7th Cir. 2012) (quoting Denny's Marina, Inc. v. Renfro Prods., Inc., 8 F.3d 1217, 1220
(7th Cir. 1993)). To satisfy the injury requirement, Plaintiff must allege that his “claimed injuries

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Plaintiff also brings a claim under the Federal Trade Commission Act of 1914, which created the FTC. Plaintiff
does not explain under which provision of the Act he seeks to bring his claim. The Court assumes Plaintiff intends
to bring antitrust claims generally, for which the Sherman Act provides the remedy he seeks.

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are ‘of the type the antitrust laws were intended to prevent’ and ‘reflect the anticompetitive effect
of either the violation or of anticompetitive acts made possible by the violation.’” Tri-Gen Inc. v.
Int'l Union of Operating Eng'rs, Local 150, 433 F.3d 1024, 1031 (7th Cir. 2006) (quoting
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 489 (1977)).
Plaintiff alleges that the loss of his clinical privileges are cognizable injuries under the
Sherman Antitrust act, yet this conclusory assertion is insufficient to state an antitrust injury. Of
the many deficiencies in Plaintiff’s Complaint, the most salient is that Plaintiff has only pled that
his injury is the loss of his clinical privileges and does not plead any effect on any market. The
Seventh Circuit has stated explicitly that “the staffing decision at a single hospital [is] not a
violation of Section 1 of the Sherman Act.” Kochert v. Greater Lafayette Health Services, 463
F.3d 710, 718 (7th Cir. 2006) (citing BCB Anesthesia Care Ltd. v. Passavant Memorial Area
Hospital, 36 F.3d 664, 668 (7th Cir. 1994)).

Additionally, Plaintiff has not pled the relevant

market nor facts to establish the market control of the Hospital, both of which are required under
Sections 1 and 2 of the Sherman Act. See Right Field Rooftops, LLC v. Chi. Baseball Holdings,
LLC, 87 F. Supp. 3d 874, 886 (N.D. Ill. 2015) (citing Republic Tobacco Co. v. N. Atl. Trading Co.,
381 F.3d 717, 738 (7th Cir. 2004)). The failure to allege the existence of a relevant commercial
market is fatal to a Sherman Act claim, regardless of whether the Court applies a per se analysis,
quick-look review, or rule-of-reason analysis. Reapers Hockey Ass’n, Inc. v. Amateur Hockey
Ass’n Ill., Inc., 412 F. Supp. 3d 941, 952 (N.D. Ill. 2019) (citing Agnew v. Nat’l Collegiate Athletic
Ass’n, 683 F.3d 328, 337 (7th Cir. 2012) (“It is the existence of a commercial market that
implicates the Sherman Act in the first instance.”)). Because Plaintiff does not plead a cognizable
antitrust injury and has failed to plead a commercial market, Plaintiff cannot make out an antitrust
claim.

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B.

Health Care Quality Improvement Act Claims

Plaintiff pleads an injury under the Health Care Quality Improvement Act of 1986
(“HCQIA”), 42 U.S.C. § 1110. It is well-settled that the HCQIA does not provide a private cause
of action to aggrieved physicians. See e.g. Rosenberg v. Advocate Health & Hospitals Corp., No.
11 C 2493, 2011 WL 1548391, *3 (N.D. Ill. Apr. 22, 2011). In fact, “it appears that every court
to address the question of whether the HCQIA provides a private cause of action has come to the
same conclusion: it does not.” Id. (citing Westmoreland v. Pleasant Valley Hosp., Inc., No. 3:08–
1444, 2009 WL 1659835, at *3 (S.D. W.Va. Jun.12, 2009) and collecting cases). Because the
HCQIA does not provide a private cause of action such that Plaintiff may avail himself of the
statute, the Court need not linger on this claim. Plaintiff’s HCQIA claim is dismissed with
prejudice. See Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th Cir. 2015) (“District courts ...
have broad discretion to deny leave to amend ... where the amendment would be futile.”).
C.

Civil Rights claims

Plaintiff brings a claim under the “Civil Rights Act of 1991,” which does not exist. The
Court will construe this as intending to refer to 42 U.S.C. § 1981. In order to bring a Title VII
claim in federal court, a plaintiff must present the claim in an EEOC charge and have obtained a
right-to-sue letter. Conner v. Illinois Dept. of Natural Resources, 413 F.3d 675, 680 (7th Cir.
2005) (stating that “[a] plaintiff must file a charge with the EEOC detailing the alleged
discriminatory conduct within the time allowed by statute, and the EEOC must issue a right-to-sue
letter”); Ballard v. Sercon Corp., 846 F.2d 463, 468 (7th Cir. 1988) (“Title VII’s requirement that
the plaintiff exhaust the administrative remedies provided by the statute is jurisdictional; that is, a
court is obligated to enforce the requirement even if the defendant has overlooked it.”) In Illinois,
a plaintiff has a 300-day window to file an EEOC charge concerning an alleged unlawful

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employment practice for a Title VII claim based on those practices to be actionable. Bass v. Joliet
Pub. Sch. Dist. No. 86, 746 F.3d 835, 839 (7th Cir. 2014) (“If a plaintiff does not file a charge
concerning a discrete act within the 300-day window, [his] claim is time-barred and [he] may not
recover.”); Roney v. Ill. Dep't of Transp., 474 F.3d 455, 460 (7th Cir. 2007) (“A charge of
employment discrimination must be filed with EEOC within 300 days of the alleged unlawful
employment practice.”). Here, Plaintiff does not allege that he filed a discrimination charge with
the EEOC within the 300-day window nor does he allege anything that could lead the Court to
believe that he has exhausted his administrative remedies. Because Plaintiff does not allege he has
filed a charge with the EEOC or exhausted his administrative remedies, Plaintiff’s Title VII claim
is dismissed.
II.

Rule 12(b)(5) Motion to Dismiss for Insufficient Service of Process

The docket indicates that Thomas Mulvar (Dkt. 13-1), David Hines (Dkt. 13-1), Ernesto
Cabrera (Dkt. 14), Nora Byrne (Dkt. 16), Raghu Ramadurai (Dkt. 17), Ada Arias (Dkt. 17-1) and
Michael Maghrabi (Dkt. 17-2) were all served by certified mail. The Defendants move to dismiss
pursuant to Rule 12(b)(5). Rule 4(e) provides that an individual defendant may be served by
following state law, in this case Illinois law, or by delivering a copy of the summons and the
complaint to the individual personally, leaving a copy of each at the individual's dwelling or usual
place of abode with someone of suitable age and discretion who resides there, or by delivering a
copy of each to an agent authorized by appointment or by law to receive service of process. Fed.
R. Civ. P. 4(e).
Illinois law provides that an individual defendant may be served by leaving a copy of the
summons with the defendant personally, or:
(2) by leaving a copy at the defendant's usual place of abode, with some person of the
family or a person residing there, of the age of 13 years or upwards, and informing that
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person of the contents of the summons, provided the officer or other person making
service shall also send a copy of the summons in a sealed envelope with postage fully
prepaid, addressed to the defendant at his or her usual place of abode.
735 ILCS 5/2-203(a). In Illinois, service on individual defendants through the United States Postal
Service by certified mail is not permitted under the statute. Thompson v. Brown, No. 20 C 133,
2020 WL 6149580, *1 (N.D. Ill. Oct. 20, 2020) (finding service improper where individual
defendants served through certified mail); Lee v. Howse, No. 19-cv-30, 2020 WL 2468133, *4
(N.D. Ill. May 13, 2020) (citing Walton v. Lyons, 962 F. Supp. 126, 128 (C.D. Ill. 1997) (“The
Federal Rules of Civil Procedure do not permit service of the summons and complaint by first
class, or even certified, mail.”)). Plaintiff does not provide any good cause that would allow the
Court to extend the time for service. The Court “must dismiss” the complaint if plaintiff fails to
properly serve the Defendants within 90 days after filing the Complaint. Fed. R. Civ. P. 4(m).
Such a dismissal may be with prejudice “if the plaintiff’s delay in obtaining service is so long that
it signifies failure to prosecute.” Williams v. Illinois, 737 F.3d 473, 476 (7th Cir. 2013).
This is not Plaintiff’s first case before the Court. In 2018, Kahn sued over 300 defendants
for patent infringement and sent them all waivers of service. Repeatedly, at numerous status
hearings, the Court warned Kahn that this type of service was an alternative form of service and
that defendants were not required to waive service. In spite of these repeated warnings, Kahn
refused to alter his service. With very limited exceptions, Kahn failed to serve the defendants in
that matter and insisted on serving defendants by mailing the summons and complaint to them. He
further refused to obtain an attorney and refused to listen to the Court’s recitation of binding law
– all offered to help him with his case. Rather than accept any of these warnings, Kahn plunged
ahead with his suit, requiring dozens of lawyers to appear and challenge venue and service. In the
end, the case was dismissed and the Court sanctioned Kahn for his abuse of the judicial process

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and he was required to pay for the attorney fees of opposing counsel. In this Court’s previous
memorandum opinion and order the Court stated:
Plaintiffs also failed to comply with the timeliness requirements of Rule
4(m). Still, more than 250 days after Plaintiffs filed their Complaint,
nearly all of the Defendants have still not been properly served. The
Plaintiffs provide no justification for this extreme delay besides their tired
refrain that service was completed by U.S. Mail. By maintaining this
contention, in the face of directly contrary instruction from the Court,
Plaintiffs have failed to comply with the necessary procedural rules for
litigating their case. Therefore, due to insufficient and untimely service,
Plaintiffs’ Complaint is dismissed for want of prosecution.
Khan et al. v. Hemosphere Inc., et al., No. 18-5368, Dkt. 135 at 6. Under these circumstances, the
Court will not give Kahn another opportunity than the two he has already had. He cannot claim
that he was unaware of how to serve his Complaint nor can he claim he is unaware of the serious
consequences of failure to serve properly. Defendants Mulbar, Cabrera, Ramadurai, Byrne and
Maghrabi are dismissed for Plaintiff’s failure to prosecute.
III.

Remaining State Law Claims

This leaves only state law claims for Violation of Hospital Bylaws, Fraudulent Actions and
Wrongful Termination of Plaintiff’s Hospital Privileges, Breach of Contract, Defamation, and
Mental Distress. Having dismissed the only federal claims in this action, the Court declines to
exercise supplemental jurisdiction over the remaining state law claims. 28 U.S.C. § 1367(c)(3);
see also Dietchweiler by Dietchweiler v. Lucas, 827 F.3d 622, 631 (7th Cir. 2016) (explaining the
Court may decline to exercise jurisdiction over state law claims when federal claims are deficient).

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CONCLUSION
For the foregoing reasons, Plaintiff’s discrimination claim is dismissed without prejudice;
his antitrust claim is dismissed with prejudice; and because the HCQIA does not provide for a
private right of action, this claim is dismissed with prejudice. Plaintiff’s claims as to certain
Defendants are dismissed for failure to properly effect service and for failure to prosecute. The
case is therefore dismissed. If Kahn exhausts his administrative remedies with the EEOC, he may
refile his discrimination claim.

____________________________________
Virginia M. Kendall
United States District Judge
Date: November 17, 2020

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