Adem v. Jefferson Memorial Hospital Association et al

Filing 46

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Jefferson Memorial Hospital Association d/b/a Jefferson Regional Medical Center and Warren Mark Breite, M.D.'s Motion to Dismiss Plaintiff's Amended Complaint for Failure to State a Claim Upon Which Relief can be Granted and for Lack of Subject Matter Jurisdiction 17 is GRANTED. Count III of the First Amended Complaint is dismissed, with prejudice, for failure to state a claim. Because this Court declines to exercise supplem ental jurisdiction over Plaintiff's remaining state law claims, Counts I, II, IV and V are dismissed without prejudice to be refiled in state court. IT IS FURTHER ORDERED that Plaintiff Antoine Adem M.D.'s Motion for Partial Summary Judgment 33 is DENIED as moot. Signed by District Judge John A. Ross on 11/13/12. (LAH)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANTOINE ADEM, M.D.,
Plaintiff,
v.
JEFFERSON MEMORIAL HOSPITAL
ASSOCIATION, d/b/a/ JEFFERSON
REGIONAL MEDICAL CENTER, et al.,
Defendants.

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No. 4:11-CV-2102-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendants Jefferson Memorial Hospital Association
d/b/a Jefferson Regional Medical Center and Warren Mark Breite, M.D.’s Motion to Dismiss
Plaintiff’s Amended Complaint for Failure to State a Claim Upon Which Relief can be Granted
and for Lack of Subject Matter Jurisdiction [ECF No. 17] and Plaintiff Antoine Adem M.D.’s
Motion for Partial Summary Judgment [ECF No. 33]. The motions are fully briefed and ready
for disposition. The Court will first address Defendants’ motion to dismiss, as the granting of
that motion would render Plaintiff’s motion for summary judgment moot.
Background1
This action arises out of the termination of Plaintiff Antoine Adem, M.D. (“Dr. Adem”)’s
medical staff privileges at Defendant Jefferson Memorial Hospital Association, d/b/a Jefferson
Regional Medical Center (“JRMC”). Defendant Warren Mark Breite, M.D. (“Dr. Breite”) is

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The factual background is taken from Dr. Adem’s First Amended Complaint, as well as
from JRMC’s recitation of the chronology of events in the peer review process taken from its
Memorandum in Support of Motion to Dismiss (Doc. No. 18). Dr. Adem adopts JRMC’s
recitation in his Motion for Partial Summary Judgment. (Doc. No. 33, ¶ 3)

JRMC’s Vice President of Medical Affairs and a member of the JRMC Medical Executive
Committee (“MEC”).
Dr. Adem, an invasive/interventional cardiologist, was granted staff membership and
privileges by JRMC in 2002. In 2008, an investigation pursuant to Article 6 of JRMC’s Medical
Staff Bylaws (“the Bylaws”) was opened in response to a complaint made about Dr. Adem. The
Medical Care Appraisal Committee (“MCAC”) recommended Dr. Adem’s privileges be
terminated as a result of unethical conduct and upon a finding that he had performed unnecessary
medical procedures. On February 9, 2010, Dr. Adem was notified by JRMC of its summary
suspension of his invasive/interventional cardiology privileges. On April 26, 2012, the MEC
notified Dr. Adem that it was recommending to the JRMC Board of Directors (“the Board”) that
his privileges and medical staff membership be terminated. Dr. Adem then requested a hearing
before a Hearing Review Committee (“HRC”). Under the Bylaws, the HRC acts as a fact-finding
tribunal. On June 7, 2011, following six evidentiary hearings comprising over forty hours of
testimony from fact and expert witnesses, the HRC concluded that JRMC did not provide
conclusive evidence that Dr. Adem’s medical procedures were unnecessary or harmful.
However, the HRC agreed with the previous findings of both the MCAC and MEC that Dr.
Adem had engaged in unethical conduct by submitting a false letter in an attempt to influence
decisions regarding his privileges. The HRC recommended, by a vote of 2 to 1, that Dr. Adem’s
privileges be reinstated.
On June 23, 2011, the MEC met to review the HRC’s decision and issued its final
recommendation to the Board that Dr. Adem’s privileges be suspended for fourteen days, a
suspension he had already served, and that his medical staff membership and privileges be

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terminated as discipline for the ethical issue. As a result of its decision on the ethical issue, its
recommendation on the medical issues was rendered moot.
Dr. Adem appealed under Section 7.5-2(b) of the Bylaws. An Appeal Board comprised of
eight Board members heard arguments and reviewed written briefs. On September 1, 2011, the
Appeal Board issued its decision and findings of fact and conclusions of law affirming the
MEC’s final recommendation, and terminating Dr. Adem’s privileges.
Dr. Adem alleges that prior to the Board’s decision, he had a thriving cardiology practice
at JRMC predicated on his ability to admit patients to JRMC, utilize JRMC facilities and staff to
test, diagnose and treat his patients, and accept referrals of prospective patients from other
members of the JRMC medical staff, all of which has been substantially impaired by the
termination of his privileges.
In this action, Dr. Adem seeks a declaratory judgment that JRMC’s Bylaws are invalid
because they failed to afford him a fair hearing procedure and that Defendants violated his legal
rights by conducting a hearing that was unfair, unlawful and racially motivated. Dr. Adem also
seeks injunctive relief and damages for alleged tortious interference with business expectancy
and breach of contract as well as for violations of 42 U.S.C. § 1981, all based on the revocation
of his medical staff privileges at JRMC. Jurisdiction in this Court relies on the claim raised in
Count III for violations of 42 U.S.C. § 1981.
Legal Standard
Motion to Dismiss
In ruling on a motion to dismiss, the Court must view the allegations in the complaint
liberally in the light most favorable to the plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806

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(8th Cir.2008) (citing Luney v. SGS Auto Servs., 432 F.3d 866, 867 (8th Cir.2005)).
Additionally, the Court “must accept the allegations contained in the complaint as true and draw
all reasonable inferences in favor of the nonmoving party.” Coons v. Mineta, 410 F.3d 1036,
1039 (8th Cir.2005) (citation omitted). To survive a motion to dismiss, a complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007) (abrogating the “no set of facts” standard for Fed.R.Civ.P. 12(b)(6)
found in Conley v. Gibson, 355 U.S. 41, 45–46 (1957)). Thus, as a practical matter, a dismissal
under Rule 12(b)(6) should be granted “only in the unusual case in which a plaintiff includes
allegations that show, on the face of the complaint, that there is some insuperable bar to relief.”
Strand v. Diversified Collection Serv., Inc., 380 F.3d 316, 317 (8th Cir.2004). The issue on a
motion to dismiss is not whether the plaintiff will ultimately prevail, but whether the plaintiff is
entitled to present evidence in support of his or her claim. Rosenberg v. Crandell, 56 F.3d 35, 37
(8th Cir.1995).
Count III - 42 U.S.C. § 1981
Because Count III is the basis for Dr. Adem’s assertion that jurisdiction is proper in this
Court, the Court will address Defendants’ motion to dismiss with respect to this claim first.
Dr. Adem alleges a claim of racial discrimination under 42 U.S.C. § 1981, specifically, that
Defendants were motivated by racial animus towards him, a person of Arabic race and Lebanese
national origin, in pursuing the charges against him, and that the Board’s decision to revoke his
medical staff privileges “was precipitated, in substantial part, by racial animus” towards him.
(First Amended Complaint (“FAC”), ¶ 33)
To establish a prima facie case of discrimination, a § 1981 plaintiff must show (1)

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membership in a protected class, (2) discriminatory intent on the part of the defendant, (3)
engagement in a protected activity; and (4) interference with that activity by the defendant.
Gregory v. Dillard’s, Inc., 565 F.3d 464, 469 (8th Cir. 2009) (citing Green v. Dillard's, Inc., 483
F.3d 533, 538 (8th Cir. 2007); Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir.2004)).
Section 1981 prohibits racial discrimination in “all phases and incidents” of a contractual
relationship, but “does not provide a general cause of action for race discrimination.” Gregory,
565 F.3d at 468 (citing Youngblood v. Hy-Vee Food Stores, Inc., 266 F.3d 851, 855 (8th
Cir.2001). Therefore, a claim brought under § 1981 must initially identify a protected contractual
relationship or interest under which the plaintiff has rights. Id. (citing Domino’s Pizza, Inc. v.
McDonald, 546 U.S. 470, 477 (2006)). Defendants urge dismissal of Dr. Adem’s claim because
he has not identified a contractual relationship that could form the basis of a § 1981 claim.
Arguments of the Parties
In support of their motion, Defendants state that under Missouri law, medical staff
bylaws do not create contracts between physicians and hospitals because there is no
consideration. See Egan v. St. Anthony’s Medical Center, 244 S.W.3d 169 (Mo.banc 2008) and
Zipper, D.O. v. Health Midwest, 978 S.W.2d 398 (Mo.Ct.App. 1998). (Memorandum in Support
of Motion to Dismiss, Doc. No. 18, pp. 4-5) With respect to Dr. Adem’s allegations that
contractual relationships with patients and business opportunities with colleagues form the basis
of his claim, Defendants argue the termination of Dr. Adem’s staff privileges does not interfere
with his ability to contract; rather, it is his ability to treat patients at JRMC, a benefit of his
privileges, that has been affected. (Id., pp. 6-7) Moreover, Dr. Adem has failed to identify any
contract he attempted to enter or maintain that has been interfered with by the Board’s decision.

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(Id., p. 7) Finally, Defendants argue that even if Dr. Adem could demonstrate a contractual
relationship in which he has rights, he has not pled facts sufficient to demonstrate discriminatory
intent. (Id., pp. 9-10)
In response, Dr. Adem argues that JRMC made the Bylaws a binding contract through its
acceptance of his application for membership on the medical staff. (Memorandum in Opposition,
Doc. No. 24, p. 6) By virtue of paying annual dues pursuant to section 2.6 of the Bylaws, Dr.
Adem contends he entered into a bargained for exchange of consideration with JRMC, whereby
JRMC obligated itself to act in accordance with the Bylaws. He cites Ennix v. Stanten, 556
F.Supp.2d 1073 (N.D. Cal. 2008), in support of his claim. In Ennix, an African-American
cardiac surgeon sued a hospital and physicians under § 1981, claiming racial discrimination in
connection with a medical peer review that resulted in a temporary loss of hospital privileges.
The Northern District of California, at summary judgment, held there was a genuine issue of
material fact as to whether or not a contractual relationship existed between the surgeon and the
hospital. Dr. Adem also alleges Defendants’ discrimination has impaired his “quasi-contractual”
obligation to care for his existing patients by virtue of his inability to treat them at JRMC, and
precluded him from consummating such contractual relationships with potential patients who
want to or must be treated at JRMC. (Id., p. 5)
In reply, Defendants reiterate their position that under Missouri law, medical staff bylaws
cannot be considered a contract, and that if a hospital wants to impose duties and incur
obligations with its employees, it must do so in a separate document that is not the bylaws. See
Zipper, 978 S.W.2d at 417. (Defendants’ Reply to Plaintiff’s Memorandum in Opposition, Doc.
No. 27, p. 6) Dr. Adem has not pled the existence of such a document. Furthermore, the Bylaws

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themselves specifically state in section 7.6-5 that “nothing set forth in these Bylaws shall be
deemed to establish any contractual rights...” (Id., p. 5)
Discussion
Dr. Adem advances two theories as to why the termination of his medical staff privileges
violated rights protected under § 1981. First, he contends the termination of his privileges
violated his contractual relationship with JRMC. Second, Dr. Adem contends the termination of
his privileges impaired his contractual relationships with patients and business opportunities with
colleagues.
With respect to Dr. Adem’s alleged contractual relationship with JRMC, the Bylaws
provide that “nothing set forth in these Bylaws shall be deemed to establish any contractual
rights...” Section 7.6-5. Where medical staff bylaws specifically state that they do not constitute
a contract, courts have held they confer no contractual rights. See Grain v. Trinity Health, 431
Fed.Appx. 434 (6th Cir. 2011), holding that medical staff bylaws did not constitute a contract
given unambiguous language stating they “shall not constitute a contract between the medical
staff and the hospital.” Id. at 450. See also, Jimenez v. Wellstar Health System, 596 F.3d 1304,
1309 (11th Cir. 2010), holding that, for purposes of a § 1981 claim, medical staff bylaws created
no contract between a hospital and a doctor where the bylaws stated, “[m]embership on the
Medical Staff does not create a contractual relationship between WellStar or any Medical Staff
and the Medical Staff Member.”
In addition to the plain language of the Bylaws, the law in Missouri is clear that medical
staff bylaws do not constitute a contract between doctors and hospitals. For this reason, Dr.
Adem’s reliance on Ennix is misplaced. In Missouri, the essential elements of a contract are: (1)

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competency of the parties to contract; (2) subject matter; (3) legal consideration; (4) mutuality of
agreement; and (5) mutuality of obligation. Zipper, 978 S.W.2d at 416 (citations omitted). A
valid contract must include an offer, an acceptance and consideration. Id. (citing Johnson v.
McDonnell Douglas Corp., 745 S.W.2d 661, 662 (Mo. banc 1988)). Hospital bylaws cannot be
considered a contract under Missouri law because there is no consideration. By state board of
health regulation, Missouri hospitals are required to adopt bylaws governing their professional
activities. Zipper, 978 S.W.2d at 416 (internal quotation omitted). “[A] promise to do that which
one is already legally obligated to do cannot serve as consideration for a contract.” Id.
“Additionally, there is no bargained for exchange as to the procedures adopted in hospital
bylaws as required to have an enforceable contract.” Id. This is because the hospital has the right
to change the bylaws unilaterally and impose those bylaws on its medical staff. Id. See also
Egan, 244 S.W.3d at 174 (“A hospital’s duty to adopt and conform its actions to medical staff
bylaws as required by the regulation is a preexisting duty, and a preexisting duty cannot furnish
consideration for a contract. A hospital’s obligation to act in accordance with its bylaws, in other
words, is independent of any contractual obligation the hospital may have to the doctor.”)
In further support of his alleged contractual relationship with JRMC, Dr. Adem contends
that by accepting his application for staff membership “on terms and conditions that JRMC set
forth in its application form,” JRMC has made the Bylaws a binding contract. (Plaintiff’s
Memorandum in Opposition, Doc. No. 24, p. 6 (citing FAC, ¶¶ 4, 7)) He also asserts that his
payment of annual dues to JRMC is “consideration” for JRMC’s continuing extension of
privileges and staff membership to him. The Eighth Circuit recognizes that under Missouri law, a
hospital can be subjected to contractual enforcement of its medical staff bylaws if a contractual

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relationship is established in a separate document. See Madsen v. Audrain Health Care, Inc., 297
F.3d 694, 699 (8th Cir. 2002) (citing Zipper, 978 S.W.2d at 417). Dr. Adem has not, however,
identified any document in which JRMC separately sets forth its obligations under the Bylaws.
He has not alleged that the Bylaws were incorporated into his membership application, and he
has not attached a copy of the application to his complaint. Again, if a hospital wants to impose
duties and incur obligations with its employees, it must do so in a separate document that is not
the bylaws. See Zipper, 978 S.W.2d at 417. Because the Bylaws are not considered a contract
under Missouri law, and because Dr. Adem does not allege that JRMC separately obligated itself
to comply with any other set of standards, his allegations regarding his payment of dues or the
acceptance of his membership application are insufficient to form the basis of a separate
contractual relationship.
Thus, in light of the well established law in Missouri, and the Bylaws’ unambiguous
language repudiating the existence of a contract, the Court finds JRMC’s medical staff bylaws
do not constitute a contract between Dr. Adem and JRMC.
In addition to claiming a contractual relationship with JRMC as a basis for his § 1981
claim, Dr. Adem alleges Defendants’ conduct has impaired his contractual opportunities with
patients and colleagues. Specifically, he contends that Defendants have interfered with his
“quasi-contractual” obligation to care for his existing patients by virtue of his inability to treat
them at JRMC, and precluded him from consummating such contractual relationships with
potential patients who want to, or must be, treated or hospitalized at JRMC. (Plaintiff’s
Memorandum in Opposition, Doc. No. 24, p. 5) The Eleventh Circuit rejected a similar argument
in Jimenez, 596 F.3d 1304.

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In Jimenez, the plaintiff doctor filed an EEOC charge claiming his medical privileges
were suspended because of his race. The court found the suspension of these privileges did not
implicate any right protected by § 1981 because the doctor did not have any contractual or
property interest in maintaining his medical staff privileges at the hospital. Id. at 1310-11. The
doctor also argued the suspension interfered with his right to contract with patients and thirdparty payors. Id. at 1310. The court ruled that the doctor’s relationship with the patients he
treated at the hospital was a benefit of the medical staff privileges to which he was no longer
entitled. Moreover, future contracts he might have formed with patients admitted after his
suspension were too speculative to form the basis of a §1981 claim. Id.
As in Jiminez, Dr. Adem’s relationships with patients and colleagues at JRMC was a
benefit of having privileges there. As discussed above, his privileges were not contractual.
Therefore, the effect of having those privileges terminated cannot be contractual and cannot form
the basis of a §1981 claim. The same conclusion precludes Dr. Adem’s claim regarding potential
“business opportunities” with colleagues at JRMC. Jiminez, 596 F.3d at 1310. Accordingly,
Defendants’ motion to dismiss Count III will be granted.
Defendants have asked the Court not to exercise supplemental jurisdiction over Dr.
Adem’s remaining claims, and Dr. Adem has not objected or otherwise responded to their
request. (Memorandum in Support, Doc. No. 18, p. 15) District courts “may decline to exercise
supplemental jurisdiction over” a state law claim if “the district court has dismissed all claims
over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Count III is the only count over
which this Court has original jurisdiction. Because Defendants’ motion to dismiss is granted as
to Dr. Adem’s federal law claim, there are no claims remaining over which the Court has

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original jurisdiction. Thus, the Court may decline to exercise supplemental jurisdiction to hear
the remaining claims. Because the Court sees no reason why the parties should not adjudicate
this dispute in state court, the Court declines to exercise supplemental jurisdiction over the
remaining claims and will dismiss those claims without prejudice.
Accordingly,
IT IS HEREBY ORDERED that Defendants Jefferson Memorial Hospital Association
d/b/a Jefferson Regional Medical Center and Warren Mark Breite, M.D.’s Motion to Dismiss
Plaintiff’s Amended Complaint for Failure to State a Claim Upon Which Relief can be Granted
and for Lack of Subject Matter Jurisdiction [17] is GRANTED. Count III of the First Amended
Complaint is dismissed, with prejudice, for failure to state a claim. Because this Court declines
to exercise supplemental jurisdiction over Plaintiff’s remaining state law claims, Counts I, II, IV
and V are dismissed without prejudice to be refiled in state court.
IT IS FURTHER ORDERED that Plaintiff Antoine Adem M.D.’s Motion for Partial
Summary Judgment [33] is DENIED as moot.
A separate order of dismissal will accompany this Memorandum and Order.

Dated this 13th day of November, 2012.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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