Wood v. Archbold Medical Center, Inc. (738 F. Supp. 2d 1298, 2010)

ORDER

HUGH LAWSON, Senior District Judge.

This case is before the Court on the following motions:

1. Motion for Summary Judgment filed by Defendants Archbold Medical Center, Inc., John D. Archbold Memorial Hospital, Inc., James L. Story Jr., M.D., and Mel Hartsfield, M.D. (the “Hospital Defendants”) (Doc. 462);

2. Motion for Summary Judgment filed by Defendants Marshall Dunaway, M.D., Merrill Hicks, M.D., Raul G. Santos, M.D., Victor M. McMillan, M.D., Edward Hall, M.D., Nicholas Quinif, M.D., Rudolf Hehn, M.D., James Falconer, M.D., and Bryan R. Grieme, M.D. (the “Physician Defendants”) (Doc. 464);

3. Motion for Summary Judgment filed by Defendant Wesley W. Simms, M.D. (Doc. 466);

4. Motion for Summary Judgment on Defendants’ Affirmative Defenses Claiming Immunity and Release (Doc. 468) filed by Plaintiff Mark G. Wood, M.D.;

5. Amended Motion for Summary Judgment on Defendants’ Affirmative Defenses Claiming Immunity and Release and Hospital Defendants’ Counterclaims I-IV (Doc. 500) filed by Plaintiff Mark G. Wood, M.D.; and

6. Motion for Summary Judgment filed by Defendant Ken B. Beverly (Doc. 472).

After considering the briefs, oral arguments, and evidence presented by the parties, the Court rules as follows: (1) the Hospital Defendants’ Motion for Summary Judgment (Doc. 462) is granted; (2) the Physician Defendants’ Motion for Summary Judgment (Doc. 464) is granted; (3) Defendant Simms’ Motion for Summary Judgment (Doc. 466) is granted; (4) Plaintiffs Motion for Summary Judgment (Doc. 468) is denied; (5) Plaintiffs Amended Motion for Summary Judgment (Doc. 500) is granted, in part, and denied, in part; and (6) Defendant Beverly’s Motion for Summary Judgment (Doc. 472) is granted.

I. FACTS AND BACKGROUND

A. Parties

Defendant John D. Archbold Memorial Hospital, Inc. (the “Hospital”) owns and operates a general acute care hospital in Thomasville, Georgia. (Doc. 463, ¶ 4). Defendant Archbold Medical Center, Inc. (the “Medical Center”) is the sole corporate member of the Hospital. (Doc. 463, ¶ 3). The Hospital is governed by a Board of Trustees (the “Board”). The Board is responsible for the Hospital’s property, business pursuant to the Georgia Nonprofit Corporation Law, the hospital licensing regulations of the Georgia Department of Human Resources, and the Bylaws of the Hospital. (Doc. 463, ¶ 18). The Board’s responsibilities also include appointing physicians to the medical staff of the Hospital, delineating clinical privileges for the physicians, and periodically determining whether the appointment and clinical privileges of those physicians should continue. (Doc. 463, ¶ 19).

The Hospital’s medical staff is composed of physicians and other health care praetitioners who have been appointed to the medical staff and granted clinical privileges by the Board. (Doc. 463, ¶ 20). Medical staff appointments and clinical privileges are granted by the Board after receiving recommendations from the medical staff. Medical staff appointments and clinical privileges are subject to reevaluation and may be renewed by the Board after receiving recommendations from the medical staff every two years, and may also be terminated by the Board. (Doc. 463, ¶ 23).

The medical staff is organized under Medical Staff Bylaws adopted by the medical staff and approved by the Board. The medical staff is supposed to function pursuant to those Bylaws. (Doc. 463, ¶ 24).

The Medical Executive Committee (the “MEC”) is a committee of the medical staff composed of the officers of the medical staff and the chairpersons of certain medical staff departments. The MEC’s duties include recommending to the Board all matters relating to medical staff appointments, reappointments, clinical privileges, and corrective actions. (Doc. 463, ¶ 25).

Plaintiff is a nephrologist. He is board certified in internal medicine. (Doc. 463-119). He currently serves as the medical director of the Fresenius dialysis centers in Thomasville and Bainbridge, as well as the DaVita dialysis center in Moultrie. He also has a private nephrology practice. (Doc. 463-131). He became a member of the medical staff at the Hospital in 1983, and served as the medical director of the inpatient and outpatient dialysis units at the Hospital from 1983-1994. (Doc. 469, ¶¶ 4-5).

Defendant Nicolas Quinif, M.D., is a urologist. (Doc. 463-15, p. 2). Defendant Rudolf Hehn, M.D., practices in the area of family medicine. (Doc. 463-16, p. 2). Defendant James Falconer practices in the area of internal medicine. (Doc. 463-17, p. 2). Defendant Victor McMillan, M.D., is a rheumatologist. (Doc. 463-18, p. 2). Defendant Edward Hall, M.D., is a general surgeon. (Doc. 463-19, p. 2). Defendant Bryan Grieme, M.D., is a radiologist. (Doc. 463-21, p. 3). Defendant Marshall Dunaway, M.D., practices in the area of internal medicine. (Doc. 463-22, p. 2). Defendant Wesley W. Simms is a pathologist. (Doc. 467-2).

Defendant Raul Santos, M.D., is a nephrologist. (Doc. 463-142, p. 2). Defendant Merrill Hicks is also a nephrologist. (Doc. 463-138, p. 2). Defendants Hicks and Santos own and operate a nephrology practice located in Thomasville, which is incorporated as Nephrology Consultants, Inc. (“NCI”). (Doc. 469, ¶49). Defendants Hicks and Santos are currently and have been since at least January 1995 and February 1996, respectively, under contract with the Hospital to serve as medical directors of the Hospital’s inpatient dialysis unit and the Hospital’s five outpatient dialysis facilities. (Doe. 469, ¶ 50).

Defendant James Story, M.D., was the Vice President of Medical Affairs for the Hospital from March 1997 to October 2000, and was President and CEO of the Hospital from October 2000 to April 2007. (Doc. 469, ¶¶ 34, 36). Defendant Mel Hartsfield, M.D., was the Vice President of Medical Affairs from March 2001 to December 2006. Prior to that time, he served as an emergency room physician at the Hospital. (Doc. 463-14). Defendant Ken B. Beverly served as the Chief Executive Officer and President of the Medical Center from April 1992 to February 2008. (Doc. 469, ¶ 19). He was employed by and served as the CEO and President of the Hospital from 1985 to 1992. (Doc. 469, ¶ 21). Defendant Beverly was also a member of the Board from 1994 through February 2008. (Doc. 469, ¶ 24).

B. Pre-1998 Evaluation Events

In 1994, Plaintiff advised the Hospital that he would be setting up a competing outpatient dialysis facility. (Doc. 469, ¶ 131). The decision to do so was based on several reasons, including Plaintiffs belief that the Hospital refused to upgrade its dialysis equipment and facilities, as well as the fact that many hospitals were divesting their dialysis facilities. (Docs. 463-88, p. 23; 520-29). Plaintiff resigned as medical director of the Hospital’s outpatient facility in late 1994. (Doc. 469, ¶ 132).

In May of 1995, Plaintiff and others incorporated South Georgia Dialysis Services, LLC (“SGDS”) for the purpose of owning and operating dialysis clinics. (Doc. 463-119). Plaintiff owned a minority interest in SGDS. SGDS opened a dialysis center in Thomasville in December of 1995. It opened its hemodialysis centers in Thomasville and Camilla sometime between October and December of 1996. (Docs. 463-124; 463-125). In early 1997, SGDS opened two additional hemodialysis clinics, one in Quitman, and the other in Bainbridge. (Docs. 463-124; 463-125). Part of SGDS’s business plan was to take virtually all of Plaintiffs dialysis patients away from the Hospital’s outpatient facilities. (Doc. 520-11). It is admitted that Defendant Beverly did not like the fact that SGDS set up competing dialysis facilities, and had discussions with Plaintiff “about the fact that there are a lot of economic financial opportunities for us to do business together, because dialysis was-is a big business ... in Thomasville ... and the state and the nation, and it was only going to get bigger, and there were a lot of economic opportunities for us to work together.” (Doc. 469, ¶ 137). Defendants Beverly and Hicks raised concerns about the “local competition” with Austin Trigg, a consultant with Renal Care Group, Inc. (“RCG”), asked for strategies for dealing with the competition, and inquired about whistle blower immunity. (Doc. 469, ¶¶ 136,140).

When SGDS opened its competing facilities, the Hospital, including Defendant Beverly, implemented a policy whereby Hospital employees would not be eligible for re-hire if they went to work for Plaintiff at the outpatient clinics. (Doc. 469, ¶ 143). Nevertheless, when the SGDS facilities were opened, approximately 30 nurses left the Hospital to go work for SGDS. (Doc. 463-88, p. 22). Part of SGDS’s business plan was to hire as many nurses as it could from the Hospital. (Doc. 520-11).

Fran Milberg, the head of the SGDS outpatient dialysis facilities, testified that after the facilities were opened she “bumped into Defendant Beverly once and he said you’re working for the enemy, huh, or something like that, I mean, in jest, off the cuff,” though she thought maybe he meant what he said. (Doc. 521-16, p. 3). In 1995, Martha Heath, who worked in the renal unit at the Hospital, was told by someone with the Hospital (not an individual Defendant) that Plaintiffs nurses were not to be allowed to come visit Plaintiffs patients while they were hospitalized. This was not a formal written Hospital policy, and Ms. Heath never asked any of Plaintiffs nurses to leave the Hospital if they did come visit patients. (Doc. 521-8). Sometime during this same time period, the Hospital declined to install a Telex machine in Plaintiffs office for the receipt of lab information, and also cancelled a written contract with Plaintiff relating to the processing of renal biopsies. (Doc. 469, ¶ 160).

Also prior to 1998, the Hospital did not make blood available from the Hospital’s blood bank to the SGDS outpatient dialysis facilities. However, the Hospital did not provide blood to any facilities not affiliated with the Hospital because of possible regulatory and patient care problems. (Doc. 521-17). While SGDS was able to obtain blood from the Southeastern Community Blood Center in Tallahassee, Florida, Ms. Milberg believes the director of that blood bank told her that she, the director, would have to talk to Defendant Beverly before delivering blood to the SGDS facilities. (Doc. 521-16). During the same time period, the Hospital distributed a Community Resource Sheet to hospitalized dialysis patients upon discharge which did not include the SGDS outpatient facilities as resources. (Doc. 469, ¶ 167). Plaintiff and one of his former employees, Dr. Stephanie Woollen, also testified that the Hospital did not rotate or assign any unassigned emergency room patients to them after the SGDS facilities were opened, but Plaintiff was listed on the emergency room referral lists for 2003 through 2008, along with other specialists on staff. (Docs. 474-11; 474-56).

In 1997, Defendant Beverly told another physician on the medical staff that he wanted his patients back from Plaintiff and SGDS. (Doc. 469, ¶ 179). Also in 1997, the Hospital offered Dr. Woollen a salary of $350,000 to join NCI, in part so she would not leave Thomasville, as she had already. expressed her intent to leave the community. Dr. Woollen declined the offer and eventually left Thomasville for a number of reasons, including what she called the Hospital’s anti-competitive conduct, but also because she had a good business opportunity elsewhere, because Thomasville was far from home, because Plaintiffs office was not a warm and conducive place to practice, and because Plaintiff was passive aggressive in not completing his medical records in order to retaliate against the Hospital, which led to problems for her. (Doc. 521-4).

In the fall of 1997, efforts to sell the clinics owned by SGDS began. In March of 1998, SGDS sold its four dialysis service centers to Renex for $4.5 million. (Doc. 463-119). After the sale to Renex, Plaintiff no longer had an ownership interest in the dialysis centers. (Doc. 463-125).

C. 1998 Evaluation

On October 25, 1995, Gerald Muller, M.D., Chairman of the Hospital’s Medical Records Quality Assurance Subcommittee, wrote a memorandum to Plaintiff notifying Plaintiff that he continued to have histories and physicals (“H & Ps”) not dictated within 24 hours of admission as required under standards propounded by the Joint Commission on Accreditation of Healthcare Organizations (“JCAHO”). (Doc. 463-34). On November 21, 1995, W. Henry Gainey, M.D., Chairman of the MEC, wrote Plaintiff a letter notifying him of action taken by the MEC following its meeting with Plaintiff on November 20, 1995. Dr. Gainey stated that Plaintiffs high volume of delinquent H & Ps had adversely affected the percentages for timely completion for H & Ps for the entire staff, resulting in non-compliance with JCAHO standards. Plaintiff was notified that his H & Ps would be monitored daily, and if any H & Ps were not dictated within 24 hours of admission, Plaintiffs admission privileges would be immediately suspended. (Doc. 463-35). On January 24, 1996, James A. Thomas Jr., M.D., Chief of Staff, notified Plaintiff that he had two additional H & P deficiencies. Dr. Thomas directed Plaintiff to attend the next MEC meeting. (Doc. 463-36).

On June 6, 1996, Dr. Muller, Chairman of the Medical Records Quality Assurance Subcommittee, wrote Plaintiff a memo informing him that he had one outlier, or delinquent record, for the H & P review period, and that a trend had been noted for two consecutive months. Dr. Muller asked Plaintiff to comply with the standard for H & Ps. (Doc. 463-37). On September 5, 1996, the Medical Records Quality Assurance Subcommittee wrote Plaintiff a memorandum informing him that he had a five-month trend of not dictating his H & Ps within 24 hours after admission. Plaintiff was notified that the committee would monitor his H & Ps until September 24, 1996. (Doc. 463-38). On September 19, 1996, Dr. Thomas, Chairman of the MEC, wrote Plaintiff a letter notifying him of action taken by the MEC. Plaintiffs H & Ps would be monitored daily by the medical record department for a three month period, and if any H & Ps were not dictated within 24 hours following admission, Plaintiffs admission privileges would be suspended immediately. (Doc. 463-39).

On January 9, 1997, Plaintiff wrote a letter to Defendant Hehn, Chief of Staff, complaining that Dr. Woollen had not been included in the Hospital’s latest news report, whereas Defendant Santos had been given a write up. Plaintiff stated that “[t]his may just be a ‘small matter’ but it certainly reflects the double standards that exist at this hospital. Archbold Hospital goes out of its way to assure that all referrals make their way to Dr. Hicks and Dr. Santos,” that his patients “have been exceedingly intimidated at the Archbold dialysis facilities,” that the Hospital had “pulled out every stop to compete in a less than ethical manner,” and that the guarantees given Defendants Hicks and Santos “certainly could fall under the rubric of anti-trust.” (Doc. 463-126).

On January 27, 1997, Robert D. Webb, M.D., Chief of Staff, wrote Plaintiff a letter notifying him that his admitting privileges were suspended as of January 27, 1997. At that time, Plaintiff had thirteen delinquent discharge summaries, and under the Medical Staff Rules, staff members were only allowed ten delinquent discharge summaries for the entire year. (Doc. 463-40). While Plaintiffs admitting privileges were suspended, he admitted three patients to the Hospital. On February 3, 1997, the MEC, which included Defendant Hehn, recommended that a letter be sent to Plaintiff informing him that the fact he admitted patients while on suspension for medical record deficiencies would be documented in his credentials file and forwarded to the Medical Affairs Committee (“MAC”) in accordance with the Medical Staff Bylaws. (Doc. 463-41).

In light of Plaintiffs failure to abide by the Medical Staff Rules, an Ad Hoc Study Group (the “1997-1998 Study Group”) was appointed by the MEC. The 1997-1998 Study Group, which included Defendants Grieme, Hehn, and Story, met on March 12, 1997, and reviewed the facts regarding Plaintiffs non-compliance with rules. Plaintiff was given the opportunity to speak, and stated that the three patients should have been admitted to his partner, Dr. Woollen. He stated that the Admitting Office should not have allowed him to admit. He also recommended that a space for physicians to dictate their records without interruption be provided. Plaintiff suggested that this could fix the dictation problem. The 1997-1998 Study Group informed Plaintiff that it was his responsibility to make arrangements when admitting privileges have been suspended, and it was noted that guidelines previously set out by the MEC stated that it was not the admitting officer’s job to enforce suspensions of admitting privileges. Plaintiff stated that he would try to comply with the rules. The 1997-1998 Study Group unanimously voted to recommend to the MEC a 72-hour suspension of Plaintiffs admitting privileges for non-compliance with the Medical Staff Rules. (Doc. 512-3).

On March 17, 1997, the MEC, including Defendants Hehn, Grieme, and Quinif, met and voted to accept the 1997-1989 Study Group’s recommendation, with referral to the Board. (Doc. 463-42). On March 25, 1997, the Board voted to impose a 72-hour suspension of Plaintiffs admitting privileges. Defendants Beverly and Hehn were members of the Board and were present at the meeting. Defendant Dunaway was a member of the Board, but was absent from the meeting. (Doc. 463-7) On March 31,1997, Jason H. Moore, President of the Hospital, wrote Plaintiff a letter notifying him that after consideration of the recommendations of the 1997-1998 Study Group, MEC, and MAC, the Board had voted to impose a 72-hour suspension of Plaintiffs admitting privileges as of April 2,1997. (Doc. 463-43).

On May 8, 1997, Defendant Hehn, Chief of Staff, wrote Plaintiff a letter notifying him that his admitting privileges were suspended as of May 9, 1997. Plaintiff had fourteen total delinquent discharge summaries at that time in violation of the Medical Staff Rules. (Doc. 463^14). On June 2, 1997, Defendant Hehn, Chief of Staff, wrote Plaintiff a letter notifying him that his admitting privileges were suspended as of June 3, 1997, as he had sixteen total delinquent discharge summaries. (Doc. 463-45). On October 17, 1997, Defendant Hehn, Chief of Staff, wrote Plaintiff a letter notifying him that his admitting privileges were suspended from October 18 to October 19, 1997 because of a delinquent discharge summary. (Doc. 463-46). On October 31, 1997, Defendant Hehn, Chief of Staff, wrote Plaintiff a letter notifying him that his admitting privileges were yet again suspended from November 1 to November 2, 1997 because of delinquent discharge summaries. (Doc. 463-47).

On January 21, 1998, Defendant Hehn, Chief of Staff, wrote Plaintiff a letter setting out the MEC’s expectations for the future. Specifically, the MEC expected Plaintiff to comply with the medical record timeliness guidelines, to meet continuing education guidelines, to have 50% meeting attendance, to follow the accepted procedure for submitting forms, and to do his best in following the standards of care expected from the medical staff and following rules. Plaintiff was warned that any future problems would be dealt with according to Section V of the Medical Staff Bylaws, “Question of Marginal Practice, Disruptive Behavior, Disregard for Rules, Physical or Mental Impairment or Unethical Conduct.” (Doc. 463-48). Nevertheless, on January 27, 1998, Defendant Hehn, Chief of Staff, again had to notify Plaintiff by letter that his admitting privileges were suspended from January 27 to January 28, 1998. Plaintiff had thirteen delinquent discharge summaries at that time. (Doc. 463-49).

The 1997-1998 Study Group, which included Defendants Hehn, Story, and Grieme, was reconvened and met on February 11, 1998. Plaintiff, though notified of the meeting, did not attend. After reviewing Plaintiffs medical record timeliness, patient volume, and meeting attendance, the 1997-1998 Study Group voted to impose a three-day suspension of Plaintiffs admitting privileges for the next breach of the medical records standard, and a seven-day suspension for any subsequent breach. The 1997-1998 Study Group specifically stated that it did not feel it necessary to refer Plaintiff to the Physician Well Being Committee (“PWBC”) at that time. (Doc. 463-50). The recommendation was forwarded to the MEC, and on February 16, 1998, the MEC, including Defendants Hehn, Grieme, and Quinif, voted to accept the 1997-1998 Study Group’s plan of action for future disregard of rules by Plaintiff. (Doc. 463-51). The Board, including Defendants Beverly, Dunaway, and Hehn, met on February 24, 1998, and considered the recommendation. The Board discussed Plaintiffs repeated non-compliance with the Medical Staff Rules and the fact that subsequent to the last meeting, Plaintiff had twenty additional delinquencies. Based on these circumstances, the Board voted to instruct the administration to notify Plaintiff, in writing, of a seven-day suspension of his admitting privileges, effective March 2, 1998, and to request that Plaintiff provide a written plan of caring for his patients requiring admission during the suspension period. The Board also voted to reappoint Plaintiff to the medical staff for a six-month probationary period. (Doc. 463-8). On February 24, 1998, Mr. Moore, President of the Hospital, wrote a letter to Plaintiff notifying him of the seven-day suspension. (Doc. 463-52).

On June 8, 1998, John Mansberger, M.D., Chief of Staff, wrote Plaintiff a letter notifying him that his admitting privileges were suspended for 24 hours starting on June 9, 1998. Plaintiff had five delinquent discharge summaries at that time. (Doc. 463-76, p. 63). The 1997-1998 Study Group, including Defendants Hehn, Grieme, and Story, met again on June 19, 1998. Plaintiff was notified of the meeting but declined to attend. After reviewing Plaintiffs medical record non-compliance and a statement from Plaintiff that he had no other excuse than he was involved in a divorce and had a lot on his mind, and after discussing concerns with patient care, the morale of the nursing staff involved with Plaintiff, and Plaintiffs personal problems that might have interfered with his ability to practice medicine competently, the 1997-1998 Study Group voted to suspend Plaintiffs admitting, consulting, and emergency room privileges for seven days, and voted to refer Plaintiff to the PWBC for an evaluation. These recommendations were forwarded to the MEC. (Doc. 463-53). On June 19, 1998, the MEC, including Defendants Hehn, Quinif, and Story, voted to accept the 1997-1998 Study Group’s recommendations. (Doc. 463-54). The Board, including Defendants Beverly and Dunaway, met on June 23, 1998. The Board voted to impose a seven-day suspension of Plaintiffs admitting, consulting, and emergency room privileges. The Board also voted to require Plaintiff to provide a written plan for his patients requiring admission to the Hospital during the suspension period. Finally, the Board voted to refer Plaintiff to the PWBC. (Doc. 463-9). Plaintiff was notified of the Board’s decision by letter dated June 24, 1998 from Mr. Moore, President of the Hospital. The suspension was to begin on June 29, 1998. (Doc. 463-76, p. 64).

On June 30, 1998, Defendant Hehn, Chairman of the MEC, wrote a letter to the PWBC referring Plaintiff to the Committee for evaluation. Defendant Hehn stated in the letter that the 1997-1998 Study Group was organized because Plaintiff was having “repeated difficulties with medical record violations, documentation of his continuing medical education, and relationships with nursing staff. Over the past years the problem has continued, and there have been clinical care concerns as well.” Defendant Hehn specifically asked that the PWBC determine whether Plaintiff had any impairment in his ability to adequately perform his duties as a staff physician at the Hospital. (Doc. 463-54).

In July 1998, Defendant Hicks informed Austin Trigg of RCG that he was meeting with the Hospital administration to tell them he was leaving unless some changes were made in the Hospital’s policy toward the medical staff and in the dialysis program. According to a memorandum prepared by Mr. Trigg, Defendant Hicks told him that the chances were 50-50 that he would leave to go to Tupelo to join a new practice, and it was a quality of life decision for his family. Defendant Santos also apparently expressed some interest in moving away from Thomasville. (Wood Group Exhibit 22, RCG WOOD 0000812).

On July 30, 1998, the PWBC met to discuss Plaintiff. The PWBC was made up of Defendants Dunaway, Hehn, and Story, Keith Bryson, M.D., Michael Gee, M.D., and John Mansberger, M.D. The members discussed Plaintiffs history and past issues. It was noted that quality assurance evaluations had raised several concerns about Plaintiffs clinical judgment, there was a concern about a lack of adequate after hours availability by Plaintiff, the nursing staff was hesitant to contact Plaintiff because he was argumentative, Plaintiffs work habits had changed, and his physical appearance had deteriorated. The PWBC voted that Defendant Story and Dr. Mansberger would meet with Plaintiff and inform him that he had been addressed by PWBC, and that a decision had been reached to require him to be evaluated. Plaintiff was to be given a list of institutions outside of Thomasville recommended by the Medical Association of Georgia, and he was to have one week to make arrangements for the evaluation. If he refused to be evaluated, Plaintiff would be summarily suspended. (Doc. 463-55). On August 3, 1998, Defendant Story and Dr. Mansberger met with Plaintiff to inform him of the PWBC’s recommendation. (Doc. 463-56). Plaintiff was asked to undergo a urine screening test, which was negative. (Doc. 469, ¶ 194). Plaintiff stated that he would have to talk with his personal psychiatrist before he would decide whether to agree to the evaluation. (Doc. 463-56). According to the notes from Plaintiffs psychiatrist, Plaintiff was told the reasons for the evaluation recommendation were questionable clinical competence, lack of cooperation with colleagues, poor meeting attendance, and late medical records. (Doc. 520-18).

In response to the PWBC’s decision, A. Kenneth Fuller, M.D., Plaintiffs psychiatrist, wrote a letter to Defendant Story on August 5, 1998 stating his belief that there was no need for an evaluation. Dr. Fuller requested a meeting with the PWBC. Dr. Fuller ended his letter by stating that “Mazing and harassment have no place in the disciplining of physicians.” (Doc. 463-57). Dr. Fuller met with Defendant Story and Dr. Mansberger, and afterwards sent another letter to Defendant Story, this one on August 7, 1998, again stating his belief that an evaluation was not necessary. Dr. Fuller proposed meeting with the PWBC and Plaintiff on a monthly basis. (Doc. 463-58). On August 8, 1998, Plaintiff wrote a letter to Defendant Story declining the PWBC’s recommendation that he undergo an evaluation. (Doc. 463-59).

Notwithstanding the letters from Dr. Fuller and Plaintiff, the PWBC, including Defendants Dunaway, Hehn, and Story, decided at their meeting on August 28, 1998 that Plaintiff should be evaluated at an out-of-town institution. (Doc. 463-60). On August 28, 1998, Defendant Dunaway, Acting Chairman of the PWBC, wrote Plaintiff a letter notifying him of the PWBC’s recommendation that he undergo an evaluation, and that failure to cooperate with the recommendation would be grounds for suspension of his medical staff privileges. (Doc. 463-61). According to Plaintiff, he was told by Defendant Story that he had to have the evaluation or would be kicked off the medical staff. Plaintiff felt coerced to go for the evaluation. (Doc. 512-22).

On September 23, 1998, Mr. Moore, President of the Hospital, wrote Plaintiff a letter notifying him that the Board approved the MEC’s recommendation for Plaintiffs conditional reappointment to the medical staff. The reappointment was contingent on Plaintiff undergoing the evaluation. (Doc. 463-62).

On September 26, 1998, Plaintiff wrote to one of the investors in SGDS, Marguerite Williams. He alleges in the letter that he had problems with the Hospital since he decided to offer a competing dialysis services. Plaintiff stated that the Hospital ran off his former partner, showed “abject favoritism” to the competing nephrology group, that the Hospital abused the peer review process, and generally treated him unfairly. (Doc. 463-149).

Plaintiff underwent a 96-hour evaluation from October 11 through October 14, 1998 at the Ridgeview Institute in Smyrna, Georgia, Georgia (the “1998 Evaluation”). Paul Earley, M.D., of Earley Associates, PC, was the medical director of the Impaired Physicians Program at Ridgeview. (Doc. 463-125). Plaintiff was strip searched upon arrival and was under constant watch for the entire 96 hours. (Doc. 469, ¶ 203). Around the time Plaintiff underwent the 1998 Evaluation, a number of doctors and nurses on staff at the Hospital, as well as other members of the community, wrote to Dr. Earley on Plaintiffs behalf, some of which stated beliefs that the Hospital was angry about the competition from the SGDS facilities. (Doc. 469, ¶¶ 204-207).

In the evaluation report, Dr. Earley found that Plaintiff tended to be a conflict avoider, had a tendency to reinforce negative perceptions of those he has a conflict with, i.e., the Hospital, and could be passive-aggressive. Dr. Earley determined that Plaintiff did not suffer from substance abuse, that while previously diagnosed as being depressed, Plaintiffs depression did not impair his ability to practice medicine, and that he had a number of current life stressors. Dr. Earley made several recommendations for both Plaintiff and the Hospital, including:

1. Dr. Wood should, with due haste, move from being a physician who is delinquent on medical records towards one who completes medical records in an exemplary fashion.... As he moves forward over the next six months to one year, he must maintain an excellent completion rate of his medical records. In addition, the hospital should discontinue having his medical records on the ward. Dr. Wood should go to medical records himself — the hospital should not make special accommodations for Dr. Wood’s delinquency in medical records now or at any time in the future. This first action is a sentinel action — it informs Archbold Hospital he (Dr. Wood) is changing and the situation is not hopeless.

2. Dr. Wood should attend all medical staff meetings.... In addition, Dr. Wood should join the appropriate committees on the medical staff. Our long term goal with Dr. Wood is that once attitudes about his behavior change and he becomes a team player within the Archbold system, that he himself become a member of the Physician Wellness Committee.

3. Dr. Wood, with the hospital’s assistance, should discuss a cross coverage between himself and the other nephrology practice. We must acknowledge that this will be a difficult thing for Dr. Wood to do. With the assistance of Dr. Story or Dr. Dunaway or any other hospital representative, we suggest a meeting with Dr. Wood regarding cross coverage. This will free up Dr. Wood so he may complete his medical records, so he is not continually on call and will decrease the probability of burnout. Dr. Wood has strong feelings about the other nephrology practice and the hospital needs to be aware that these feelings will take time to mend. In this endeav- or, we recommend that the hospital become an ally with Dr. Wood....

6. We strongly recommend that Dr. Wood and the hospital not use attorneys to communicate. Attorneys are helpful in delineating legal situations, in this case however, direct contact between Dr. Wood through phone conversation and face to face meetings will decrease the level of hostility and conflict. In fact, we suggest one or two representatives of the hospital meet face to face in a non-threatening environment with Dr. Wood. One good suggestion would be to go out to dinner every other week for a period of several weeks. If this proves fruitful, continue this. If this does not prove fruitful, contact us to discuss why it is not helpful for either party.

(Doc. 463-63).

On October 29, 1998, Mr. Moore, President of the Hospital, wrote Plaintiff a letter conditionally approving a one-month reappointment to the medical staff subject to the following conditions:

(1) Cooperate with all hospital staff and physicians to insure the provision of quality patient care;

(2) Continue evaluation as recommended by the physician group at Ridgeview Institute in Smyrna, Georgia and the Archbold Medical Staffs Physician Well Being Committee;

(3) No delinquent medical records as defined in the Medical Staff Rules & Regulations;

(4) Attend all scheduled medical staff meetings and department of medicine meetings unless there is an emergency, and in that case, communicate the reason for absence with the department chairman;

(5) Attend any scheduled Acute Dialysis Committee meetings unless there is an emergency, and in that case, communicate the reason for absence with the department chairman;

(6) Provide appropriate coverage for patients, including arranging for patient care in case of absence or illness and;

(7) Comply with all Medical Staff Bylaws and Rules & Regulations.

(Doc. 463-75, p. 19).

On November 17, 1998, Plaintiff, Dr. Earley, and the PWBC, including Defendants Dunaway, Hehn, and Story, participated in a conference call. (Doc. 463-64). On December 7, 1998, the PWBC, including Defendants Dunaway, Hehn, and Story, discussed Dr. Earley’s recommendations, which included that medical record, staff meeting, and continuing education requirements should be strictly adhered to, that Plaintiff should participate in hospital committees more, and that Plaintiff should have better interaction with nurses and the medical staff. The PWBC also noted that quarterly updates were expected from Dr. Earley. (Doc. 463-65).

With regard to the recommendations for the Hospital, Defendant Dunaway testified that Plaintiff was not put on a medical staff committee because the PWBC did not want to overburden Plaintiff with additional meetings to attend. Also, no meal between Plaintiff and anyone with the Hospital was planned because the PWBC did not think that was an appropriate suggestion. Finally, the PWBC did not attempt to facilitate cross coverage for Plaintiff because Plaintiff was in discussions with another nephrology group to merge their practices. (Doc. 512^1).

On December 15, 1998, Michael McHugh, a Licensed Clinical Social Worker who works with Dr. Earley, wrote a letter to Defendant Story regarding a meeting members of Earley Associates had with the PWBC. The letter noted that Plaintiff was determined to be in compliance with all previously made recommendations, including completing medical records in a timely fashion, attending medical staff meetings, and maintaining continuing education requirements. Additional recommendations were discussed at the meeting, including meeting with the new Director of the Dialysis Unit, joining a committee, developing a positive communication with staff, and maintaining an open communication process to allow the PWBC to receive quarterly reports on the progress of the recommendations. (Doc. 463-75, pp. 16-17).

Plaintiff and his now ex-wife, Susan, divorced in December of 1998. Their divorce decree contained a provision that if Plaintiff instituted a lawsuit against the Hospital or any of its affiliates, directors, or Board members and recovered any money, Ms. Wood was to receive one-half of the net recovery settlement or judgment. (Doc. 463-125). Plaintiff contends that even though this provision was included, he had no intention to sue the Hospital at that time. (Doc. 463-125).

At its February 1, 1999 meeting, the PWBC, including Defendants Dunaway, Hehn, and Story, noted that Plaintiff had been 100% compliant with all of Dr. Earley’s recommendations. The PWBC voted to recommend to the MEC that Plaintiff be reappointed to the medical staff for one year. (Doc. 463-66). On February 2, 1999, Defendant Dunaway, Chairman of the PWBC, wrote a letter to Defendant Hehn, Chairman of the MEC, and recommended the one-year appointment. (Doc. 463-67). On February 23, 1999, Mr. Moore, President of the Hospital, wrote Plaintiff a letter notifying him of his reappointment to the medical staff for one year. (Doc. 463-68).

On October 5, 1999, Plaintiffs medical records had been 100% completed. (Doc. 469, ¶ 217). On December 7, 1999, Dr. Earley sent a letter to Dr. Story stating that Plaintiff had been in written and telephone correspondence with Dr. Earley, and they discussed his relationship with the Hospital and his ability to work within the hospital setting, among other things. Dr. Earley noted that Plaintiff was functioning at or about his meaningful baseline, as Plaintiff described an improvement in his attitude and an increased ability to work with others. Dr. Earley stated, however, that this did not mean that Plaintiff did not struggle with authority figures or working within hospital systems. He noted that some conflicts may continue to exist between Plaintiff and the Hospital, but that it was apparent that his involvement with the case was coming to a close. (Doc. 463-155, p. 4).

At its December 9, 1999 meeting, the PWBC, including Defendants Dunaway, Story, and Quinif, noted that Plaintiff had met his requirements for medical records, his attendance at meetings had been acceptable, and that his attitude had improved. The PWBC voted to recommend to the MEC that Plaintiff be given full medical staff privileges for one year and that Plaintiff and Dr. Earley maintain some type of relationship for at least one more year, with twice yearly reports from Dr. Earley. (Doc. 463-69).

On January 10, 2000, Defendant Dunaway, Chairman of the PWBC, wrote Plaintiff a letter stating that the PWBC had received reports from Dr. Earley and Plaintiff had been doing well complying with the various requirements. Plaintiff was notified that the PWBC was recommending to the MEC that he be given staff privileges for one year. Defendant Dunaway also recommended that some type of “loose relationship” be maintained with Dr. Earley for at least one more year, possibly two, and that Dr. Earley provide twice yearly reports to the PWBC. (Doc. 463-75, p. 21). Plaintiff subsequently wrote Dr. Earley a letter dated February 9, 2000, in which Plaintiff notified Dr. Earley of the PWBC’s recommendation that Plaintiff and Dr. Earley maintain a loose relationship every six months, for another year or so. (Doc. 463-155, p. 7).

On August 10, 2000, Melissa Butler, a radiology tech at the Hospital, submitted a note regarding Plaintiff. When Ms. Butler called Plaintiff to ask him a question about his patient, Plaintiff “responded in his usual sarcastic tone,” commented that she was not using her common sense, and hung up on her. Also written on Ms. Butler’s note was a handwritten note from John Leile, head of the Hospital’s C.T. Department, which read, “This is all too common an experience with Dr. Wood. I doubt there is a C.T. Tech that has not had multiple unpleasant experiences trying to communicate with Dr. Wood. His attitude is certainly not professional nor in the best interest of the patient.” (Doc. 463-75, p. 32).

The PWBC, including Defendants Dunaway, Hehn, and Story, met on September 5, 2000, and reviewed Plaintiffs credentials file and the conditions of his reappointment to the medical staff in 1998. The PWBC noted that Plaintiff had not attended any of the seven Acute Dialysis Committee meetings from November 1999 to August 2000, he attended four out of seven meetings of the Department of Medicine, and zero Infection Control Committee meetings. His reappointment in 1998 was conditioned on him attending all scheduled medical staff, Department of Medicine, and Acute Dialysis Committee meetings unless there was an emergency, and in that case, he was to communicate personally the reason for absence to the department chairperson. The PWBC voted that Plaintiff had not fulfilled his obligations as outlined in the October 29, 1998 reappointment letter. The PWBC voted to recommend to the MEC that Plaintiff be put on probation for the next quarter, and if meetings were not attended, the PWBC would recommend that Plaintiff lose his privileges for an extended period of time. (Doc. 463-75, pp. 23-24).

On October 3, 2000, Defendant Story, Acting President of the Hospital, wrote Plaintiff a letter stating that Plaintiff had failed to attend meetings as required by the reappointment letter of October 29, 1998. Plaintiff was notified that the Board had approved the MEC’s recommendation to place him on probation for three months, that his meeting attendance would be monitored, and if his attendance was not satisfactory, disciplinary action would be taken, including possible limitation of privileges. (Doc. 463-75, p. 26).

Also in 2000, the Hospital implemented a policy for the dialysis unit providing that third shift dialysis patients were to be dialyzed for only three hours at a time. The policy was necessary, in part, due to the understaffed status of the dialysis unit. (Doc. 463-76, pp. 2-14). Plaintiff openly criticized the three-hour rule as compromising patient care. (Doc. 463-76, p. 28).

D. 2001 Action

On February 7, 2001, Carole Edwards, a Registered Nurse at the Hospital, and Head Nurse for the Hospital’s Renal Unit, wrote a letter to Defendant Story regarding Plaintiff. Ms. Edwards stated that she had attempted to reach out and talk to Plaintiff and include him in meetings and decisions, but had been met with “negative comments and criticisms.” Ms. Edwards stated that Plaintiff refused to follow the Renal Unit’s policies, and had been misstating the urgency of the treatments he ordered, which in turn misled the staff. She also discussed problems with Patients SS and LC. Ms. Edwards concluded the letter by stating that she had “received insults and verbal abuse” from Plaintiff, and that the Renal Unit was “spending time reacting to Dr. Wood’s moods and we are not making progress.” (Doc. 463-75, p. 28-30).

On February 8, 2001, the PWBC, including Defendants Dunaway, Hehn, and Story met and heard from Defendant Hicks, who was the Hospital’s Dialysis Medical Director. Defendant Hicks reported several concerns about Plaintiff:

1. Dr. Wood is not a team player.

The dialysis hours of operation are 7:00 a.m. to 7:00 p.m. Dr. Wood does not come in to see patients early therefore treatment is delayed, forcing dialysis nurses to work late. (Dr. Wood’s orders are usually four-hour treatments.)

The nighttime is reserved for true emergencies — Dr. Wood tells the nurses it is an emergency but does not come in. Current policy is that the attending physician will be in attendance to insert a catheter or provide management of patient.

2. Dr. Wood is abusive to nurses as well as his colleagues. He discredits staff and makes them feel responsible for patients’ demise.

Dr. Hicks has witnessed disruptive behavior on Dr. Wood’s part on numerous occasions.

3. Quality Issues:

Dr. Hicks stated that he does not review Dr. Wood’s charts, therefore he could not attest to any particular quality issues. Dr. Hicks, however, relayed several recent cases of misrepresentation on Dr. Wood’s part, where he demanded that the patient was an emergency but did not come in to place the catheter for up to 24-36 hours later.

Dr. Wood’s length of stay is longer than the other nephrologist.

(Doc. 463-75, pp. 34-35).

The letter from Ms. Edwards was presented, and the PWBC also reviewed Plaintiffs medical record and meeting attendance compliance. The PWBC recommended terminating Plaintiffs privileges or taking other serious disciplinary action for Plaintiffs inability to meet his meeting attendance requirements, for his repeated medical record deficiencies over a three-year period, for his repeated episodes of disruptive behavior after prolonged counseling, and for his failure to comply with the PWBC’s recommendation to keep in contact with Dr. Earley, as no report had been received for two six-month periods. The PWBC referred the recommendation to the MEC. (Doc. 463-75, pp. 34-36).

On February 19, 2001, the MEC voted to appoint a formal study group relating to Plaintiff (the “2001 Study Group”). Keith Beverly, M.D., was to inform Plaintiff of the existence of the group and invite him to attend. (Doc. 463-79).

The 2001 Study Group met on February 26, 2001. No individual Defendants were members of the 2001 Study Group. Plaintiff attended the meeting. At the meeting, Plaintiff informed the 2001 Study Group that his son was his priority and usurped any meetings or medical records timeliness standards. Plaintiff told the 2001 Study Group that he could not attend the morning dialysis meetings because he took his son to school at that time. Plaintiff stated that he did not miss meetings or have delinquent medical records on purpose, that he had communicated with Dr. Earley, and that he did not have a problem with any of the nurses in the Hospital. Finally, Plaintiff told the 2001 Study Group that he believed his attitude was much better. After Plaintiff was excused, the 2001 Study Group voted that Plaintiff should be required to sign an agreement stating that he would abide by the Medical Staff Rules, attend 50% of all medical staff and committee meetings, comply with the rules for medical record completion, and work with his peers and have no incident reports or complaints from the staff or disruptive behavior. The 2001 Study Group voted to recommend that failure to do so would mean voluntary relinquishment of medical staff privileges, and that Plaintiff would be asked to sign the agreement, but if he did not, he would be suspended for 30 days. These recommendations were referred to the MEC. (Doc. 463-75, pp. 47-48).

On March 16, 2001, Dr. Earley wrote a letter to Defendant Dunaway, in which he stated that he had three telephone sessions with Plaintiff in December 1999, June 2000, and February 2001. Dr. Earley noted that Plaintiffs conversations were focused on difficulties in his relationship to the Hospital. “Of note is on the last telephone conversation is a sense that the hospital continues to misunderstand him, and to not provide him with the best possible environment to practice the best possible medicine.... [H]is belief system is that there are more difficulties in relating to the hospital recently.” (Doc. 463-75, p. 38).

The MEC met on March 19, 2001. It was presented to the MEC that Defendant Dunaway communicated with Dr. Earley and that Dr. Earley stated that he had had three phone conversations with Plaintiff. (Doc. 469, ¶ 305). The MEC, including Defendant Quinif, voted that Plaintiff should sign the agreement proposed by the Study Group, and that if Plaintiff refused to do so, he would voluntarily relinquish his medical staff privileges. The MEC voted to recommend to the Board that Plaintiff be reappointed for one month if he signed the agreement. (Doc. 463-80). On or about March 27, 2001, the Board approved another one-month reappointment for Plaintiff. (Doc. 469, ¶ 306).

On April 13, 2001, Defendant Story, President of the Hospital, wrote a letter to Plaintiff stating that the MAC had reviewed the findings of the MEC and the Study Group, and that the MAC would make a recommendation to the Board to approve Plaintiffs reappointment to the medical staff, subject to his signing the written agreement. Plaintiff was notified that the agreement would contain language stating that he agreed that failure to comply with the terms of the agreement would yield immediate, voluntary termination of his medical staff privileges. (Doc. 463-75, p. 42).

Plaintiff signed the agreement containing the voluntary termination language on April 17, 2001 (the “April 17, 2001 Agreement”). Plaintiff specifically agreed to the following:

1. I will comply with the rules of the medical staff.

a. I will attend 50% of the combined total regular and special meetings, of the department assigned, and of the committees assigned. In addition, I will attend the annual meeting of the Archbold Division medical staff....

b. I will complete medical records as outlined in the Rules and Regulations of the Medical Staff.

2. I will demonstrate, to the satisfaction of the Peer Review Committee of the Division to which I am assigned, to the Medical Executive Committee, and to the Board, a willingness and capability based on current attitude and evidence of performance to work with and relate to other staff members, members of other health disciplines, ARHS management and employees, patients, and the community in general, in a cooperative, professional manner that is essential for maintaining a hospital environment appropriate to quality and efficient patient care.

There must be no documented and substantiated incident reports or staff complaints of episodes of disruptive behavior. In this connection, I understand that I must maintain a therapeutic relationship with Dr. Earley and that the Physician Well-Being Committee will receive at least 2 written reports per year from Dr. Earley with his recommendations as appropriate.

I understand and agree that failure to comply with this agreement will yield immediate, voluntary termination of my medical staff privileges and membership of the medical staff of John D. Archbold Memorial Hospital, Inc., Grady General Hospital and Brooks County Hospital.

(Doc. 463-75, p. 43).

On April 24, 2001, Defendant Story, President of the Hospital, wrote Plaintiff a letter notifying him the Board approved Plaintiffs reappointment to the medical staff, subject to the provisions of the April 17, 2001 Agreement. (Doc. 463-75, p. 45).

In May 2001, Robert Qualheim, M.D., another nephrologist, joined Plaintiffs practice. (Doc. 469, ¶ 311).

On June 6, 2001, Ms. Edwards submitted a Quality Improvement Program Report (“QUIP Report”) in which she stated that Plaintiff positioned a patient’s catheter improperly. (Doc. 463-76, p. 40). On June 10, 2001, Evelyn Considine, Assistant Head Nurse of the Renal Unit, wrote a memo regarding Plaintiff and his patients, HA and DH. Ms. Considine stated that Plaintiff was rude to her and two other nurses, and concluded by stating that Plaintiff “needs to be more considerate of other people’s feelings. It’s bad enough when the work load is heavy without enough help. Crushing your spirit on days like last Saturday just made the day much harder and added more stress in an already stressful situation.” (Doc. 463-75, pp. 63-64).

On June 12, 2001, the MEC voted to reconvene the 2001 Study Group to determine if the recent reports of disruptive behavior on Plaintiffs part was a violation of the April 17, 2001 Agreement. (Doc. 463-81).

On June 15, 2001, Ms. Edwards submitted another QUIP Report in which she stated that Plaintiff had improperly ordered staff to dialyze a patient who was too unstable, as the patient had no pulse for a long period of time. (Doc. 463-76, p. 42). On June 16, 2001, Defendant Hicks wrote a letter to James E. Smith, M.D., Chief of Staff. In the letter, Defendant Hicks discussed Patient FB, one of Plaintiffs patients. Defendant Hicks stated that Plaintiff improperly ordered dialysis on FB, even though she had no pulse for an extended period of time. Defendant Hicks stated that Plaintiff had a number of recurring problems, including blaming nurses when he did not get his way, demanding dialysis without regard to nursing availability or the patient’s need, and a lack of accountability. (Doc. 463-76, p. 38).

Ms. Edwards submitted another QUIP Report on June 27, 2001. In that Report, she stated that Plaintiff made derogatory comments about care being given by Hospital staff, was trying to circumvent rules, was blaming the dialysis unit for problems they did not create, and was not following rules about scheduling patients. (Doc. 463-76, p. 44).

The 2001 Study Group met again on June 27, 2001. Plaintiff was on vacation and was not informed about the meeting. Ms. Edwards and Defendant Santos presented several incidents about Plaintiff and his disregard for the rules on the Renal Unit. Incident reports were presented relating to Plaintiffs general attitude and comments to the nursing staff, patients, and family members. The 2001 Study Group voted unanimously that:

Upon review of the documentation presented, and with referral to the CEO of Archbold Hospital, a Motion was made, seconded and carried that Dr. Wood had in fact exhibited disruptive behavior, been the recipient of many complaints from staff and failed to relate to other staff members, and employees in a cooperative, professional manner as required by the Agreement.

The recommendation was to be referred to the MEC and to the CEO of the Hospital. The 2001 Study Group decided there was no need to inform Plaintiff of the recommendation at that time. (Doc. 463-75, pp. 50-51).

The MEC met on July 12, 2001. No individual Defendants were members of the MEC. The MEC reviewed background information pertaining to Plaintiff, as well as the findings and recommendation of the 2001 Study Group. The MEC concluded that Plaintiff breached the April 17, 2001 Agreement. The MEC noted that since Plaintiff signed the April 17, 2001 Agreement, documentation had been presented of his continued disruptive behavior and general disregard for rules. The MEC specifically noted the following:

1. Many of the nursing staff are fearful and intimidated of contacting Dr. Wood for fear of verbal insult and intimidation. This often results in delayed treatment of patients and delayed administration of interventions to address patients [sic] immediate concerns.

2. Dr. Wood’s disruptive conduct has an adverse impact on staff morale and threatens the functioning of the dialysis unit. His conduct also adds undo [sic] stress to the working environment of the dialysis staff and physician colleagues, and as a consequence, impairs the hospital’s ability to recruit and retain adequate staff to meet the dialysis needs of its patients.

3. Dr. Wood has on several occasions ordered “emergency” dialysis on non-emergent patients during non-business hours in direct conflict with approved written dialysis procedures. In one instance, he ordered “emergency” dialysis on a Sunday after providing a pass for the patient to leave the hospital to check her home on Saturday — -hardly indicative of a patient needing emergency dialysis. Another physician examined the patient on Sunday and determined there was no need for emergency dialysis. On yet another occasion he delayed dialysis during regular hours on a critically elderly patient necessitating after hours dialysis on Sunday yet another example of failure to consider staff needs in making dialysis decisions.

4. Dr. Wood has made derogatory remarks to the critical care unit staff about the dialysis staff, some of which were repeated to patient family members.

5. Some of these incidents of unprofessional conduct also raise quality of care concerns, such as Dr. Wood’s ordering nurses to continue dialysis on a patient who had recently coded with a long period of exhibiting no pulse. In another case, Dr. Wood ordered a patient to undergo dialysis after being informed the patient’s catheter was improperly positioned for such a procedure.

(Doc. 463-75, p. 55).

As a result of the violations of protocol and demonstrated disruptive behavior that negatively impacted patient care, the MEC accepted Plaintiffs voluntary resignation, which was required by the April 17, 2001 Agreement, but decided to allow Plaintiff to appeal the decision. The MEC recommended that Plaintiff be summarily suspended if he contested the voluntary resignation. Patricia Patterson, M.D., abstained from the vote on Plaintiff. (Doc. 463-75, pp. 53-56). Dr. Patterson abstained from the vote because she “had concerns about the issues, whether they really involved patient care or other interactions that were not directly related to patient care.” She recalled the problem seemed to be more of a “behavioral conflict than adverse patient care.” (Doc. 463-88, p. 7).

On July 18, 2001, Defendant Story, President of the Hospital, wrote Plaintiff a letter notifying him that the MEC determined he violated the April 17, 2001 Agreement and of the MEC’s decision to accept his voluntary resignation. Defendant Story notified Plaintiff that he would be allowed to appeal and told him that he would be summarily suspended if he contested the resignation. (Doc. 463-75, pp. 58-60). A memo was sent from James E. Smith, M.D., Chief of Staff, to the Admitting Office, Emergency Department, Medical Records Department, and Nursing Department notifying them that Plaintiff had resigned from the medical staff and had no admitting privileges effective July 18, 2001. (Doc. 463-155, p. 16). Also on July 18, 2001, Dr. Qualheim sent a memo to the medical staff stating that Plaintiff had not voluntarily resigned. (Doc. 463-155). Plaintiff decided to appeal the voluntary resignation.

On September 28, 2001, Defendant Story, President of the Hospital, sent Plaintiff a notice of hearing regarding his appeal of the voluntary resignation. Defendant Story provided Plaintiff with the names of the hearing officer and the hearing panel, the MEC’s proposed witnesses, and the reasons Plaintiff was deemed to have breached the April 17, 2001 Agreement, including failing to maintain a therapeutic relationship with Dr. Earley. The letter also stated that concerns had been raised about Plaintiffs treatment of seven patients, and the patient numbers were provided. Plaintiff was notified that he could be represented by counsel, call witnesses, cross-examine witnesses, and present evidence. (Doc. 463-76, pp. 47-49).

On November 20, 2001, Dr. Earley wrote a letter to Defendant Dunaway and the PWBC, and stated that no therapeutic relationship was ever established with Plaintiff. Instead, he was working to improve the relationship between Plaintiff and the Hospital. (Doc. 463-75, p. 40).

On November 21, 2001, counsel for the Hospital wrote Plaintiffs counsel to notify her of changes in the Hospital’s witnesses for the upcoming appeal hearing. (Doc. 512-6).

An appeal hearing on what the MEC deemed Plaintiffs voluntary resignation, and what Plaintiff considered to be a summary suspension, was held from November 28 through November 30, 2001 (the “2001 Appeal Hearing”). Plaintiff was represented by counsel at the 2001 Appeal Hearing, was allowed to present witnesses and evidence, and was allowed to cross-examine witnesses. (Docs. 463-70-463-74). The 2001 Appeal Hearing Panel consisted of Thomas C. Perry, Powell Jones, and Defendant McMillan. None of the Panel members were nephrologists; in fact, Messrs. Perry and Jones were not physicians. (Doc. 463, ¶ 92).

Together, the parties offered approximately 80 exhibits. (Doe. 463, ¶ 97). The MEC offered the testimony of seven witnesses in support of its recommendation, all of whom were cross-examined by Plaintiffs attorneys. (Doc. 463, ¶ 98).

Plaintiff testified, and also offered the testimony of 36 witnesses on his behalf. (Doc. 463, ¶ 99). For instance, Gregory Knowlton, a nephrologist, provided expert testimony in support of Plaintiff. (Doc. 469, ¶ 359). Dr. Knowlton testified that he could not imagine permitting the suspension of a physician for patient care concerns premised solely upon the input of a direct competitor on staff at the hospital. (Doc. 469, ¶ 360). He stated that in that situation, he woul