Brintley v. St. Mary Mercy Hospital (904 F. Supp. 2d 699, 2012)

OPINION AND ORDER REGARDING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

Plaintiff LaCesha Brintley, M.D. commenced this action on October 9, 2009 in this Court, asserting claims of race and gender discrimination under federal and state law, and state common law breach of contract and tort claims, against Defendants St. Mary Mercy Hospital (“SMMH”); Gilbert Roc, M.D., the Chair of SMMH’s Department of Surgery; Asit Gokli, M.D., SMMH’s Chief Medical Officer; Louis Hallal, M.D., Chair of SMMH’s Surgical Quality Improvement Committee; and Tallal Zeni, M.D., the Director of Minimally Invasive Bariatric Surgery at SMMH. Plaintiffs various claims in this action arise from restrictions placed upon, and the ultimate suspension of, her medical staff privileges at SMMH, decisions made by SMMH’s Medical Executive Committee and upheld by the St. Joseph Mercy Health System Board of Directors in August of 2009, following a lengthy peer review hearing and appeal process.

After an extended period of discovery, Defendants filed the instant Motion for Judgment on the Pleadings and/or Summary Judgment. Plaintiff has responded and Defendants have replied. Having thoroughly reviewed and considered the parties’ briefs and supporting documents and the entire record of this matter, the Court has determined that the pertinent allegations and legal arguments are sufficiently addressed in these materials and that oral argument would not assist in the resolution of this motion. Accordingly, the Court will decide Defendants’ motion “on the briefs.” See L.R. 7.1(f)(2). This Opinion and Order sets forth the Court’s ruling.

II. PERTINENT FACTS

Plaintiff LaCesha Brintley is an African-American medical doctor, board certified in general surgery. In October 2006, Dr. Brintley applied for medical staff privileges at St. Mary Mercy Hospital. During the application process, Dr. Asit Gokli, Vice President and Chief Medical Officer of SMMH, discovered that Foote Hospital in Jackson, where Dr. Brintley previously had privileges, had suspended her. He discovered that Dr. Brintley’s privileges had been suspended at Foote because “there were a few patients that had excessive bleeding, and there were cholecystectomies where there were leaks.” [See Gokli testimony, 1/22/09 Peer Review Hearing Transcript Vol. I, Plaintiffs’ Ex. 42, p. 66.] The Medical Executive Committee at Foote also had found that Dr. Brintley had communication issues, followup issues, and issues with working as a member of a surgical team. Id.

After discussing the matter with Dr. Roc, SMMH’s Chief of the Department of Surgery, and Dr. John Dirani, then the Chief of Staff, Dr. Gokli contacted Dr. Brintley to give her an opportunity to explain the situation herself.

Dr. Brintley thereafter met with Dr. Gokli, Dr. Roc, and Dr. Dirani. According to Dr. Gokli, at this meeting:

... [Dr. Brintley] admitted that she could have done things differently. She had learned her lesson about communicating with the patients properly, working as a team member, and she also kind of explained that the complications were not out of the ordinary but it was jealousy on the part of the other physicians at Foote Hospital that had led to the MEC acting arbitrarily and capriciously in suspending her.

Based on that, after the meeting occurred — and also Dr. Brintley had assured us that this would not happen again and she had learned her lesson— Dr. Roc, Dr. Dirani, and myself, we deliberated for a pretty long time, and decided she was a young, bright — she came across as a bright young lady. She was — -we thought she was very honest in communicating with us about what happened at Foote Hospital. She also mentioned to us that her salary there guarantee was way too high and when other surgeons found out what she was making there was professional jealousy that had led to all these things also.

So we decided that everybody deserves a second chance and based on the information, we would bring her into the hospital.

[1/22/09 Hrg. Tr. Vol. I, Plaintiffs’ Ex. 42, pp. 66-67].

Based on the information presented by Dr. Brintley and the recommendation of Drs. Roc, Dirani, and Gokli, Dr. Brintley’s application for medical staff privileges was approved by the SMMH Credentialing Committee, the Medical Executive Committee (“MEC”), and ultimately, the hospital Board.

PLAINTIFF’S QUALITY OF CARE ISSUES AT SMMH

Dr. Brintley’s first year of privileges at SMMH was relatively uneventful. Although Dr. Gokli, as Chief Medical Officer, testified that he had received some anecdotal complaints that Dr. Brintley’s patient care was not good, he did not initiate any action because these generally subjective complaints lacked specific information. Id. at 68-69. Concerns arose about Dr. Brintley’s practice, however, when, on January 24, 2008, she performed a laparoscopic appendectomy on an otherwise healthy 22-year-old woman who presented at SMMH’s emergency room the night before with acute appendicitis. Dr. Brintley was the surgeon taking emergency call that night.

Dr. Brintley commenced the appendectomy the next morning. She inserted a Verres needle and inflated the patient’s abdomen. Then, using the “blind” introduction technique, she introduced a bladed trocar into the abdomen. [See Brintley testimony, 3/14/09 Hrg. Tr., Plaintiffs Ex. 45, pp. 842^3.] However, she inserted the trocar in such a fashion that it severed two major blood vessels — the inferior vena cava and the iliac artery. Id. at 846, 849. The patient began to hemorrhage profusely. Dr. Brintley called for another surgeon to assist her. Fortunately, Dr. Jon lijas, a vascular surgeon, was prepping for a surgical procedure in a nearby operating room, and he came to assist. Id. at 845-46. Once the vascular injuries were located and the patient stabilized, Dr. lijas was able to repair the trauma. [See lijas Dep., Defendants’ Ex. 12, pp. 14-17.]

After the surgery was completed, however, the patient’s abdomen could not be immediately closed due to a risk of excessive swelling caused by the trauma. [3/14/09 Hrg. Tr., Plaintiffs Ex. 45, pp. 852-53.] She was taken to the Intensive Care Unit and her family was told that she would have to return to surgery to close the abdomen. Id. When informed of the events, the patient’s family refused to have Dr. Brintley continue to care for the patient. [1/22/09 Tr., Plaintiffs Ex. 42, pp. 70-71.] Dr. Roc, Chair of the Department of Surgery, took over the patient’s care.

CORRECTIVE ACTIONS

Dr. Roc subsequently met with Dr. Brintley to discuss the case and instructed her to stop using the Verres needle and the blind introduction of trocars for laparoscopic procedures. Id. at 247-48. He further requested that Dr. Brintley take herself off the emergency call list, which she did. Id. Then, on January 30, 2008, Dr. Roc met with Dr. Gokli and Dr. Roy Misirliyan, who was, at the time, the Chief of Staff and Vice-President of Medical Affairs. Though they viewed the January 24th surgical incident as an isolated event, because of the magnitude of the injury and other anecdotal concerns about Dr. Brintley’s quality of care, they considered whether additional corrective action was warranted. Dr. Gokli reiterated his position that subjective information should never be acted upon. 1/22/09 Hrg. Tr., p. 72. Therefore, before taking any further corrective action, they determined that they should ask the hospital’s Outcomes Department to conduct a comparison of Dr. Brintley’s surgical complication rates to that of other surgeons at SMHH. Id. at 72-73.

Accordingly, they asked SMMH’s Outcomes Department to conduct a comparison of complication rates of surgeons during the period of time that Dr. Brintley had been operating at SMMH, i.e., December 1, 2006 through January 31, 2008. Id.

Debbie Karabatakis, the manager of the Outcomes Department testified that she first needed to identify similar procedures to the appendectomy performed by Dr. Brintley to do the comparison. Because she is a statistician and not a doctor, she asked for clinical guidance from Dr. Gokli and from Dr. Mikkilineni, SMMH’s Medical Director of Quality to do so. See Karabatakis Dep., Plaintiffs Ex. 53, p. 9. The doctors instructed her to focus on primary surgeons who performed appendectomies or cholecystectomies. Id. This meant that she did not include cases in which a principal surgeon conducted a different procedure on a patient and then a second surgeon came in and performed the appendectomy. Id. She testified that, using the hospital’s ICD-9 procedure codes, she first identified all surgeons at SMMH who had performed an appendectomy or cholecystectomy during the period. Then, to have a statistically valid comparison, she compared Dr. Brintley’s 104 such procedures to the other surgeons at SMMH who had performed 30 or more appendectomies or cholecystectomies during the period. Id. at 15.

The comparison was done at two levels. Ms. Karabatakis testified that first, all of the procedures were screened using computer logic to cull out those procedures with additional codes indicating potential complications. Id. at 17-18. This computer screening identified procedures with the following complications: (1) a laceration; (2) the patient received greater than four units of blood; (3) the patient returned to surgery within 30 days; and (4) the patient was transferred to another facility. Id. Then, the medical records of those procedures with potential complications were sent to the Performance Improvement Committee (the “PIC” or “PI Committee”) for a full review and a clinical determination as to whether each complication was or was not avoidable. Id. at 31.

Drs. Gokli, Roc and Misirliyan preliminarily reviewed the cases identified by the Outcomes Department before they were reviewed by the PI Committee and noted that Dr. Brintley’s complication rate appeared to be significantly higher than that of the other surgeons. See Gokli testimony, 1/22/09 Hrg. Tr., pp. 73-74. Although normally, pursuant to the Medical Staff Bylaws, the next step would be for the hospital to summarily suspend Dr. Brintley’s privileges pending a full review, id. at 75, rather than suspend her which would result in a “reportable” action on her record, Drs. Gokli, Roc, and Misirliyan decided to offer Dr. Brintley the option to take a leave of absence until the review was completed. Id. Brintley took a leave of absence from February 12 to March 15, 2008. Id. at 76.

Meanwhile the PI Committee reviewed all of the procedures that had been computer screened for review as to whether or not the complications identified were probably or possibly avoidable. Id. Drs. Roc and Hallal thereafter also reviewed the cases to ensure the accuracy of the PIC review. Id. Roc testimony, pp. 261-62. The post-physician review findings were then submitted to Ms. Karabatakis for final statistical comparison. Karabatakis testimony, 3/12/09 Hrg. Tr., pp. 483-84.

The comparison showed that during the 14-month period of time that Dr. Brintley had been on staff, she had six cases that involved probably or possibly avoidable surgical complications. Of the other nine surgeons in the SMMH Department of Surgery, one had one such complication and the remainder of surgeons had none. Statistically, this translated into a complication rate of 5.77% for Dr. Brintley compared to 1.18% for the entire department. Id. at 487.

PLAINTIFF’S PROCTORSHIP AND THE ULTIMATE SUSPENSION OF HER PRIVILEGES AT SMMH

Dr. Roc reviewed the PI Committee’s findings, and on March 11, 2008, submitted his report, as Chair of the Department of Surgery, to the Medical Executive Committee (“MEC”) with his recommendations concerning Dr. Brintley’s privileges. See Defendants’ Ex. 17. Dr. Roc recommended that Dr. Brintley undergo proctor-ship for 10 laparoscopic and 10 open laparotomy surgeries, proctored by no more than three surgeons designated by the Chair of Surgery. Id.

The MEC considered Dr. Roc’s report and recommendations and made its own recommendation to the St. Joseph Mercy Hospital System Board. The MEC recommended that Dr. Brintley undergo proctor-ship for a minimum of 10 laparoscopies and 10 laparotomies, and that the proctor-ship end “if, and as appropriate, as determined by the MEC.” Defendants’ Ex. 18.

Dr. Brintley requested an appeal of the MEC decision under the Medical Staff Bylaws, but also requested that she be allowed to continue to perform surgeries, subject to the proctorship requirements. See 1/22/09 Hrg. Tr., Roc testimony, pp. 263-64. Although the MEC could have refused this request and required Dr. Brintley to complete the hearing and appeal process under the Medical Staff Bylaws before implementing the recommendations, the MEC accommodated Brintley’s request. Id. Dr. Brintley subsequently sought clarification of proctorship requirements which the MEC provided on May 14 and September 10, 2008.

On May 14, 2008, the MEC provided Plaintiff the following clarification of the proctorship requirements:

We also understand that you seek clarifications of certain aspects of the recommendation for restriction of your privileges. As you know, the restrictions specified in the March 14, 2008 correspondence involved, among other things, proctorship of a minimum of the first ten laparoscopic and first ten laparotomy surgeries. As indicated, the proctor-ship includes the selection of cases as well as supervision of the surgical procedures. As for selection of cases, you must review the case with (making the chart available to the proctor) and obtain the proctor’s prior approval for any laparoscopic or laparotomy procedure you propose to undertake. Without such prior approval, you cannot schedule or perform the procedure. As to performing the procedure, you must secure the proctor’s agreement to assist in the case. The proctor must be present during the procedure to assist in the same, and will have the authority to intervene and perform any aspect of the procedure at the proctor’s sole discretion. The proctor will complete an evaluation of each case, assessing your selection of procedures, your judgment, efficiency and skills.

The process will remain in place for a minimum of the first ten of each of types of procedures specified above, and will not end, if and as appropriate, as determined by the MEC. The responsibility to secure a proctor will be entirely yours. The MEC has approved three physicians who may act as a proctor for your cases: Dr. Gilbert Roc, Dr. Louis Hallal, and Dr. Tallal Zeni. If you are unable to secure one of these three physicians to proctor your selection and performance of a particular surgical procedure, you will not be able to undertake the same.

See Plaintiffs Ex. 14.

On September 10, 2008, the MEC reiterated the requirements:

As you know, a proctor by the very definition of the term, is a supervisor. Your attorney requested clarification of the degree of supervision involved in the recommended limitation, and Dr. Gokli provided the clarification directly to you in correspondence dated May 14, 2008. As mentioned in that correspondence, the proctor, among other things, has the authority to intervene in your performance of any case. You are not and will not be entitled to prevent any such intervention or to otherwise disregard the proctor’s directives or other supervision during the procedures.

The MEC adopted the proctorship requirements to protect and safeguard patient health and well-being in the hospital. Any failure by you to strictly abide by all of the requirements and terms specified by this and the hospital’s previous correspondence subjects you to possible summary suspension and other adverse action under the Medical Staff Bylaws.

[Defendants’ Ex. 21]

Despite these clear directives, Dr. Brintley refused to follow the direction of the proctors, and according to them, was arrogant and, at times, exhibited inappropriate conduct. See Defendants’ Ex. 19; see also Hallal Dep., Plaintiffs Ex. 47, p. 59. As recorded by Dr. Roc, there were at least three instances when Dr. Brintley failed to request a proctor prior to a procedure, as she was required to do. See Defendants’ Ex. 19. In a case proctored by Dr. Roc, Dr. Brintley challenged Roc’s request to dim the lights so that the video monitor would be clearer to the surgical team. Dr. Brintley responded, “I am the surgeon here, I want the OR lights bright.” See Defendants’ Ex. 28. In another incident, Dr. Brintley added an addendum to a patient’s medical record almost a month after the procedure, accusing the proctor, Dr. Hallal, of improperly handling the patient. In the addendum, she wrote that Dr. Hallal “manipulated the anastomosis, unsolicited in a way which I would not do and was not trained to do and I then asked Dr. Hallal to remove his hands away from the anastomosis.” See Hallal Dep., Plaintiffs’ Ex. 47, pp. 58-60.

Matters came to a head on August 2, 2008 when Dr. Zeni was proctoring a laparoscopic procedure. During the procedure, Dr. Zeni was required to intervene when Dr. Brintley failed to make a proper entry into the patient’s abdominal cavity and asked for a sharp trocar. See Defendants’ Ex. 19; see also 3/13/09 Hrg. Tr., Zeni testimony, pp. 579-84. According to Dr. Zeni, had he not intervened, Dr. Brintley would have performed a blind insertion of the trocar (in direct contravention of Dr. Roc’s February 2008 directive). See id. Dr. Zeni testified that Dr. Brintley defied his directions, became argumentative, and told him, “You are not here to tell me how to operate.” Id. Dr. Zeni was required to open the patient’s abdominal cavity so that the procedure could be properly performed. Id

The August 2, 2008 procedure was the subject of a PEERs report generated by the circulating nurse, Anita Bara Caeti. Ms. Caeti reported multiple concerns during the procedure including Dr. Brintley requesting a surgical instrument before the proctor arrived, her refusal to follow Dr. Zeni’s directive for her to wait for him to finish scrubbing before beginning the procedure, failing to observe the surgical time-out protocol, and her becoming argumentative toward Dr. Zeni during the procedure. See Defendants’ Ex. 25. Ms. Caeti stated that the events “caused tremendous stress on the surgical team” and “great concern for the well being and safety of the patient.” Id. Dr. Roc investigated the PEERs report and met with all of the members of the surgical team individually. 1/22/09 Hrg. Tr., Roc testimony, pp. 274-76. Each of the surgical team members corroborated Nurse Caeti’s report. Id.

After the August 2, 2008 incident, both Dr. Zeni and Dr. Hallal informed Dr. Roc that they were withdrawing from Dr. Brintley’s proctorship due to her clinical deficiencies and her refusal to comport with the requirements of the proctorship. Id. at p. 267.

Dr. Roc subsequently submitted a report to the MEC which detailed the issues that arose during Dr. Brintley’s proctoring. Based on his investigation and the detailed report of the problems and issues that arose during her proctoring, Dr. Roc recommended that Dr. Brintley’s clinical privileges at SMMH be suspended.

The MEC voted to summarily suspend Dr. Brintley’s privileges at its October 13, 2008 meeting. The MEC informed Dr. Brintley of its decision on October 14, 2008. See Defendants’ Ex. 27. Brintley requested a special meeting of the MEC to review the suspension, pursuant to the Bylaws, and a meeting was held pursuant to her request on October 24, 2008. See Defendants’ Ex. 25; see also 3/12/09 Hrg. Tr., pp. 292-93. Dr. Brintley attended the meeting and presented her own position statement to the MEC. See Defendants’ Ex. 28. Following this special meeting, the MEC upheld its decision to suspend Dr. Brintley’s privileges. Id.

PEER REVIEW HEARING

Pursuant to the SMMH Medical Staff Bylaws, Dr. Brintley requested, and was granted, a Peer Review Hearing to review the decision to require her to undergo proctoring and the ultimate suspension of her clinical privileges at SMMH. The Peer Review Hearing was held over four days— January 22, and March 12, 13, and 14, 2009. Dr. Brintley was represented by counsel, called witnesses on her own behalf, and cross-examined witnesses called on behalf of the MEC. The Peer Review panel was comprised of five physicians, none of whom were in direct competition with Brintley.

In addition to the SMMH doctors and staff members who testified as indicated above, Dr. Robert Jury, the Chair of the Department of General Surgery at William Beaumont Hospital, also testified at the hearing. Dr. Jury reviewed the identified cases of Dr. Brintley. He found that these cases raised serious quality concerns about Dr. Brintley’s patient care. He summarized his review as follows:

Following review of the aforementioned cases performed by Dr. LaCesha Brintley, I can fully support the actions of medical leadership in recommending remediation and quality improvement procedures. While many of the complications observed are minor and within the standards of practice, significant major complications occurred related to surgical judgment and techniques of surgery. Several minor complications are considered to be expected and acceptable as isolated events however a pattern of occurrence seems apparent. I believe the decision to restrict privileges to a proctored environment is reasonable and appropriate. Careful ongoing performance review is clearly warranted.

See Jury Report, Defendants’ Ex. 29 and testimony 3/12/09 Hrg. Tr., p. 435.

Dr. Brintley’s own expert, Dr. A.J. Tel-mos, who taught Dr. Brintley general surgery agreed with Dr. Jury:

I can’t disagree with that decision because I read Dr. Jury’s — who I have great respect for, his opinion, and my opinion as chief would be the same. If this was brought to me and there was a continuing pattern, let’s say, pattern of even minor injuries, certainly I wouldn’t be against proctoring that particular surgeon to make sure that they were following the standard guidelines.... I certainly thought there was a pattern developing here and I certainly do not disagree with his [Dr. Jury’s] opinion that to undergo a period of observation for this particular surgeon on a certain number of case was certainly warranted.

Q: ... So you agreed with his [Dr. Jury’s] judgment in that regard that proctorship would be warranted in this instance?

A: I did.

3/12/09 Hrg. Tr., pp. 731-32.

Dr. Telmos further testified that a physician being proctored should “bend over backwards” to comply with the directives of his or her proctor. Id. at 732-33.

After the conclusion of the Peer Review Hearing, the panel recommended that Dr. Brintley’s suspension be upheld. See Defendants’ Ex. 37. After an appeal to the St. Joseph Mercy Health System Board, on July 21, 2009, the Board voted to uphold the suspension (and the previous recommendation to restrict Brintley’s privileges). See Defendants’ Ex. 30.

Dr. Brintley thereafter filed an EEOC charge of race and sex discrimination and on the same day requested, and was issued, a Right to Sue letter. See Plaintiffs Ex. 1. On October 9, 2009, Dr. Brintley initiated this lawsuit.

In her 11-count Complaint, Dr. Brintley alleges claims of gender discrimination in violation of Title VII of the Civil Rights Act of 1964 (Count 1), 42 U.S.C. § 1981 (Count 2), and the Michigan ElliotL-Larsen Civil Rights Act (Count 7); race discrimination in violation of Title VII (Count 3), Section 1981 (Count 4) and the Elliott— Larsen Civil Rights Act (Count 6); civil conspiracy (Count 5); tortious interference with business relations (Count 8); breach of contract (Count 9); violation of public policy (Count 10) and negligence (Count 11). Defendants now seek entry of judgment on the pleadings pursuant to Fed. R.Civ.P. 12(c) and/or summary judgment pursuant to Rule 56 on all counts in Plaintiffs Complaint.

III. DISCUSSION

A. APPLICABLE STANDARDS

Because Defendants have presented matters outside the pleadings for the Court’s consideration, the Court will treat Defendants’ motion in its entirety as one for summary judgment. See Max Arnold & Sons, L.L.C. v. W.L. Hailey & Co., Inc., 452 F.3d 494, 503 (6th Cir.2006)

Summary judgment is proper if the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As the Supreme Court has explained, “the plain language of Rule 56[ ] mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

In deciding a motion brought under Rule 56, the Court must view the evidence in a light most favorable to the nonmoving party. Pack v. Damon Corp., 434 F.3d 810, 813 (6th Cir.2006). Yet, the nonmoving party may not rely on mere allegations or denials, but must “cit[e] to particular parts of materials in the record” as establishing that one or more material facts are “genuinely disputed.” Fed.R.Civ.P. 56(c)(1). But in so doing, the respondent must “do more than simply show that there is some metaphysical doubt as to the material facts.” Betkerur v. Aultman Hospital Association, 78 F.3d 1079, 1087 (6th Cir.1996) (citing Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir.1989) (footnotes with citations omitted)). The trial court has at least some discretion to determine whether the respondent’s claim is plausible. Id. Moreover, any supporting or opposing affidavits or declarations “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). Finally, “the mere existence of a scintilla of evidence that supports the non-moving party’s claims is insufficient to defeat summary judgment.” Pack, 434 F.3d at 814 (alteration, internal quotation marks, and citation omitted). “[Wjhere the record taken as a whole could not lead a rational trier of fact to find” for the respondent, the motion should be granted. Betkerur, supra. The Court will apply these standards in deciding Defendants’ Motion in this case.

B. PLAINTIFF HAS FAILED TO STATE A LEGALLY COGNIZABLE TITLE VII CLAIM

In Counts I and III of her Complaint, Plaintiff alleges that in restricting and subsequently terminating her medical staff privileges at SNNH, Defendants discriminated against her based on her sex and her race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Under Title VII, it is “an unlawful employment practice ... to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). It is well-settled, however, that to make out a claim for relief under Title VII, it must be shown that there existed an employer-employee relationship between the plaintiff and the defendant. See Shah v. Deaconess Hospital, 355 F.3d 496 (6th Cir.2004).

In Shah, the Sixth Circuit affirmed the dismissal of a physician’s Title VII and ADEA claims against a hospital that were predicated upon the hospital’s termination of his surgical privileges at the hospital, finding that the physician was not an employee of the hospital and, therefore, had no rights under the federal employment discrimination statutes. In reaching this conclusion, the Sixth Circuit applied the common law agency test to determine whether the doctor was an employee or an independent contractor, and explained:

[T]he common law agency analysis requires the consideration of numerous factors including:

the hiring party’s right to control the manner and means by which the product is accomplished; the skill required by the hired party; the duration of the relationship between the parties; the hiring party’s right to assign additional projects; the hired party’s discretion over when and how to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the hiring party’s regular business; the hired party’s employee benefits; and tax treatment of the hired party’s compensation.

355 F.3d at 499.

However, no one factor is decisive. Simpson v. Ernst & Young, 100 F.3d 436, 443 (6th Cir.1996).

Turning to this case, Dr. Brintley was never an employee of SMMH. She never had any kind of employment agreement or contract with SMMH. Indeed, she admitted that, during the period of time from 2006 through 2008, she was “self-employed.” See Brintley Dep., Defendants’ Ex. 4, pp. 18, 20, 23. Plaintiff never received any wages or any W-2 from SMMH. Id. at p. 25. At all times relevant to this action, she was a “private practice general surgeon” and the sole-proprietor of her own medical practice, “LaCesha Brintley, M.D., P.L.L.C.” Id. at pp. 6, 21. Dr. Brintley hired and paid her own employees. Id. at pp. 16, 19. She paid all of her own professional dues, licensing fees, and malpractice insurance premiums, and paid for her own health care insurance. Id. at 28-30. Her tax returns for years 2005 through 2008 indicate that she is self-employed. See Defendants’ Ex. 31. Brintley did her own billing and collection of payments for all of her professional services, including the services she provided at SMMH. Brintley Dep., pp. 27, 28.

Further, to the extent that Dr. Brintley relies upon the Medical Staff Bylaws to establish a contract of employment, Plaintiff unilaterally agreed to be bound by the Bylaws. See Defendants’ Ex. 33, Acknowledgment. There is no signature on behalf of the Hospital. Id. Further, nothing in the Bylaws themselves supports a claim that the Bylaws constitute a contract of employment with SMMH. Indeed, if that were the case, Article VI of the Bylaws which sets forth the various “Categories of the Medical Staff,” and the various provisions and rules differentiating between medical staff members who merely have clinical privileges, see Bylaws, Defendants’ Ex. 33, §§ 6.1-6.7, and those who are “Contractual Physicians,” i.e., those who have a “contract with the Hospital” or with an “entity that contracts with the Hospital,” see Bylaws § 6.8, would be superfluous. Moreover, there is no evidence extrinsic of the Bylaws to show an intent on the part of the Hospital to be contractually bound by the Bylaws. Contrast, Ritten v. Lapeer Regional Medical Center, 611 F.Supp.2d 696 (E.D.Mich.2009), where the Chair of the Hospital Board of Trustees testified that the Bylaws are binding on the Board and the medical staff alike. Id. at 735.

As explicitly stated in the Preamble, the Medical Staff Bylaws provide for the self-organization and self-governance of the Medical Staff:

WHEREAS, it is recognized that under the ultimate authority of the Board of Trustees, the Medical Staff is granted responsibility for the quality and appropriateness of care furnished in the Hospital; and

WHEREAS, the Medical Staff has the duty to recommend to the Board of Trustees those practitioners who should be appointed or reappointed to the Medical Staff, as well as those who should be granted initial or renewed clinical privileges,

THEREFORE, in order to discharge these duties and responsibilities, the physicians, dentists and podiatrists practicing in this Hospital are hereby organized into a Medical Staff in conformity with the following Bylaws, and the Bylaws of St. Mary Mercy Hospital.

See Defendants’ Ex. 33, Preamble, p. 4 (emphasis added). See also Article II, “Purposes”;

The purpose of this organization [the Medical Staff of St. Mary Mercy Hospital] shall be:

2.1 To provide patients in any of the facilities of the Hospital with quality care;

2.2 To make recommendations to the Board of Trustees regarding all requests for Medical Staff appointment and reappointment and initial and renewed clinical privileges;

2.3 To conduct and support appropriate continuing medical educational programs designed to advance professional competence, knowledge, and skills;

2.4 To initiate and enforce rules of self-governance of the Medical Staff in accordance with the Bylaws of the Hospital;

2.5 To provide a mechanism whereby issues of common interest may be discussed among the Medical Staff, the Administration and the Board of Trustees;

2.6 To evaluate the appropriateness of care, cost effectiveness, and the changing health care needs of the community, based on new or changing medical technology, and to devise and recommend to the Administration and the Board of Trustees strategies to fill these needs.

Defendants’ Ex. 33, p. 7.

As indicated, the Bylaws provide for the Medical Staff to make recommendations to the Hospital Board of Trustees regarding the continuation of clinical privileges. See Art. II, § 2.2; see also Art. VII, § 7.1.2.4.2 (after investigating a complaint/request for corrective action the Medical Executive Board may “recommend to the Board of Trustees reduction, limitation, suspension or revocation of clinical privileges ... [and] any other form of discipline ... such as requiring proctoring or consultation, with the consent of the proctor or consultant being required before patient care may be provided.”) As evident from the foregoing, nothing in the Bylaws requires or binds the Board of Trustees to take any action.

Dr. Brintley contends, however, that SMMH had the right to control her work, and that this “right to control” establishes an employer-employee relationship with the hospital. In support of this contention, she points to the SMMH Medical Staff Bylaws and the proctorship restrictions placed on her surgical practice at the hospital pursuant to the corrective action provisions of the Bylaws.

Courts that have considered this argument in the context of physicians and medical staff bylaws and rules have uniformly rejected it. See Cilecek v. Inova Health System Services, 115 F.3d 256 (4th Cir.1997), cert. denied, 522 U.S. 1049, 118 S.Ct. 694, 139 L.Ed.2d 639 (1998); Shah v. Deaconess Hospital, 355 F.3d 496 (6th Cir.2004); Wojewski v. Rapid City Regional Hosp., Inc., 450 F.3d 338, 341(8th Cir.2006); see also, Alexander v. Rush N. Shore Med. Ctr., 101 F.3d 487 (7th Cir.1996), cert. denied, 522 U.S. 811, 118 S.Ct. 54, 139 L.Ed.2d 19 (1997); Diggs v. Harris Hosp.—Methodist, Inc., 847 F.2d 270 (5th Cir.1988). Cf., Salamon v. Our Lady of Victory Hosp., 514 F.3d 217 (2d Cir.2008) (agreeing that hospital policies that merely reflect professional or governmental regulatory standards may not typically impose the kind of control that establishes an employer-employee relationship but finding that “a reasonable fact-finder could conclude from the present record that the quality assurance standards extended beyond mere health and safety concerns or ensuring Salamon’s qualifications” such that summary judgment was not proper on the issue of whether the plaintiff was a hospital employee or an independent contractor.)

For example, in Wojewski v. Rapid City Regional Hosp., the plaintiff, a doctor who had staff privileges at the defendant-hospital, took a leave of absence for treatment of a medical condition. The hospital subsequently conditionally reinstated the doctor’s privileges on a limited basis and subject to certain conditions, including the requirement that he meet periodically with a monitoring physician; meet with certain medical officers upon demand; limit the time he was on call; submit to mental, physical or medical competency examinations demanded of him; submit to review of 100% of his surgical cases for a period of six months from the date of reinstatement; and submit to a formal proctorship of his clinic and hospital practice. 450 F.3d at 343-44.

The doctor subsequently brought suit against the hospital arguing that in restricting his staff privileges, the hospital discriminated against him in violation of the Americans with Disabilities Act. The hospital moved for summary judgment arguing that the doctor had no standing to sue under the ADA because he was not a hospital employee. In opposing the defendant’s motion, the plaintiff argued that the hospital exercised a heightened level of control over Dr. Wojewski to such an extent that he was an employee for ADA purposes.

The district court rejected the plaintiffs argument, and the Eighth Circuit affirmed. In so doing, the appellate court relied on the Fourth Circuit’s decision in Cilecek v. Inova Health System Services, supra, in which the court similarly found insufficient indicia of control in the peer review and corrective action taken by the hospital pursuant to medical staff bylaws in the case of a doctor who had contracted with an corporation that agreed to staff emergency rooms at several Northern Virginia hospitals.

The plaintiff-doctor in Cilecek argued that the hospital where he was placed exercised control over the manner and means of his practice such that he should be treated as a hospital employee for purposes of his Title VII discrimination action. In support, he pointed to the medical staff bylaws which provided a mechanism for peer review and corrective action with respect to physicians whose practices did not meet the hospital’s standards.

In determining that Cilecek was an independent contractor and not a hospital employee, the Fourth Circuit explained:

At root, the distinction at common law between an employee and an independent contractor rests on the degree of control exercised by the hiring party. An employer controls the work and its instrumentalities and circumstances to a greater degree than does a hiring party in an independent contractor relationship. See Restatement (Second) of Agency §§ 2 & 220(2). But the degree of distinction between the two is related to the work itself and the industry in which it is performed. Thus, for example, the ultimate control of doctors performing work at hospitals results from a competition for control that is inherent in the duty of each to discharge properly its professional responsibility. A doctor must have direct control to make decisions for providing medical care, but the hospital must assert a degree of conflicting control over every doctor’s work— whether an employee, an independent contractor, or a doctor merely with privileges — to discharge its own professional responsibility to patients. Consequently, it is less productive to debate the control over the discharge of professional services in the medical context than it might be in other service relationships.

115 F.3d at 260 (some citations omitted and emphasis added).

The Cilecek court nonetheless examined the regulations and bylaws upon which the plaintiff relied as evidence of control and determined:

All of these regulations, however, relate to the professional standard for providing health care to patients for which both Emergency Physicians and the Inova hospitals had professional responsibility to their patients. While Cilecek certainly retained a professional independence in performing professional services, he also shared a professional responsibility to cooperate with the hospitals .to maintain standards of patient care, to keep appropriate records, and to follow established procedures. This shared control exists both for employee doctors and for doctors merely enjoying practice privileges at a facility. If the hospitals did not insist on such details in the performance of professional services by doctors at their facilities, they would be exposing themselves to recognized professional liability. Because of the overarching demands of the medical profession, the tension in professional control between doctors and hospitals for medical services rendered at hospitals is not, we believe, a reliable indicator of. whether the doctor is an employee or an independent contractor at the hospital.

Id. (Emphasis added).

These same principles persuaded the Sixth Circuit to reject the plaintiff-physician’s “employee” argument in Shah v. Deaconess Hospital, 355 F.3d 496 (6th Cir.2004), a case in which the plaintiff sought relief pursuant to Title VII, the ADEA and the Ohio civil rights statute.

The plaintiff in Shah was a surgeon with staff privileges at Deaconess Hospital in Cincinnati, Ohio, and as such, was subject to various written hospital rules, regulations, and bylaws, including provisions for peer review and corrective action. After the death of a patient following one of his surgical procedures, Shah was subjected to peer review proceedings which ultimately resulted in restrictions being placed on his surgical privileges: He was placed on a one-year monitoring and focus review of his hospital care and restricted from performing head and neck surgeries at Deaconess. Shah argued that his having been subjected to peer review and monitoring, and restrictions having been placed on his surgeries demonstrated that the hospital exercised control over his work such that he should be considered an employee of the hospital, and accordingly, entitled to pursue his federal and state employment discrimination claims.

The Sixth Circuit found insufficient indicia of employer control, and rejected Shah’s argument. The court explained:

There is no evidence that Deaconess has a right to control the manner and means of Shah’s performance. Although the hospital requires all physicians having surgical privileges to abide by the applicable standard of care, this requirement applies regardless of employment status and is enforced only after-the-fact, through the peer review process.

355 F.3d at 500 (emphasis added).

The court then proceeded to examine the record and observed:

By Shah’s own admission, he treats his own patients and contracts freely with other hospitals. There is no evidence that Shah must accept patients referred to him by the hospital, and as far as the record discloses, Deaconess does not dictate Shah’s hours or hire and pay Shah’s assistants. As Shah testified at his deposition, he receives no payment from Deaconess and is not treated as an employee for tax purposes. Thus, there is no proof of the existence of an employment relationship between Shah and Deaconess.

Id.

Similarly, in Savas v. William Beaumont Hospital 216 F.Supp.2d 660 (E.D.Mich.2002), aff'd, 102 Fed.Appx. 447 (6th Cir.2004), a physician’s clinical privileges at Beaumont Hospital were terminated following an extensive investigation and peer review proceedings. The physician thereafter filed suit claiming gender discrimination and retaliation in violation of Title VII and the Michigan Elliott-Larsen Civil Rights Act. The district court determined that the plaintiff was not an employee within the meaning of Title VII or the Elliott-Larsen Act, 216 F.Supp.2d at 667, and the Court of Appeals affirmed. 102 Fed.Appx. at 450. In so doing, the court considered the plaintiff-physician’s own testimony in which she stated that she was not an employee of the hospital and also noted that the physician was the sole director of her own medical practice, “Vicky Savas, M.D., P.C.”, that all of her revenue was derived directly from her patients and/or her patients’ health insurance. 216 F.Supp.2d at 663. She did not receive any paychecks or a W-2 form from Beaumont, and Beaumont did not pay her social security taxes, unemployment taxes or income taxes, nor did the hospital pay her professional licensing fees, dues, or insurance premiums. Id. The court placed no weight on the fact that the hospital had standards, peer review and regulations governing the performance of doctors or that it was following these procedures that Dr. Savas’s privileges were terminated. Savas, 102 Fed.Appx. at 449-50.

These same factors convince this Court that Plaintiff Brintley was not an employee of St. Mary Mercy Hospital. She never received any wages or any W-2 from SMMH. Further, Dr. Brintley admitted in her deposition that she was “self-employed,” and her tax returns for years 2005 through 2008 also indicate that she was self-employed. She was a “private practice general surgeon” and the sole-proprietor of her own medical practice, “LaCesha Brintley, M.D., P.L.L.C.” Dr. Brintley hired and paid her own employees, and she paid all of her own professional dues, licensing fees, and malpractice insurance premiums, and paid for her own health care insurance. Brintley did her own billing and collection of payments for all of her professional services, including the services she provided at SMMH. And, just as the courts in Savas, Shah, and Cilecek found, the fact that Brintley was subjected to corrective action, including proctoring, pursuant to the Medical Staff Bylaws does not alter the Court’s conclusion that Brintley was not an employee of SMMH. The Bylaws and the corrective action procedures thereunder are applicable to employee physicians (i.e., house physicians and contract physicians) as well as physicians, who like Plaintiff, merely enjoy practice privileges at SMMH. Therefore, being subjected to such corrective action procedures does not establish that Plaintiff was an employee of SMMH.

Having failed to establish that she was an employee of SMMH, Plaintiff cannot maintain an action under Title VII. Therefore, Defendants are entitled to summary judgment as a matter of law on Counts I and III of Plaintiffs Complaint.

C. PLAINTIFF’S CLAIM OF GENDER DISCRIMINATION IS NOT COGNIZABLE UNDER 12 U.S.C. § 1981

In Count II of her Complaint, Plaintiff alleges a claim of gender discrimination in violation of 42 U.S.C. § 1981. However, “[i]t is well-settled that § 1981 redresses only racial discrimination.” Ana Leon T. v. Fed. Res. Bank of Chicago, 823 F.2d 928, 931 (6th Cir.), cert. denied, 484 U.S. 945, 108 S.Ct. 333, 98 L.Ed.2d 360 (1987) (internal citations omitted); see also Jones v. Continental Corp, 789 F.2d 1225, 1231 (6th Cir.1986) (“[Fjederal law is quite clear that § 1981 prohibits only race discrimination, not sex discrimination.”) (citing Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976)). Plaintiffs claim of gender discrimination under § 1981, therefore, is not legally cognizable and Defendants are entitled to judgment as a matter of law on Count II.

D. PLAINTIFF DID NOT HAVE A CONTRACT WITH SMMH

Plaintiffs breach of contract claim in Count IX is based on alleged “expressed and/or implied contractual rights set forth within the SMMH Bylaws.” As with her claim of employment by the hospital, Plaintiff does not point to any “contract” per se with SMMH but instead here points to (1) the “Delineation of Privileges” form that she filled out on October 18, 2006, requesting surgical privileges for the procedures indicated on the form, which the Chairs of the Surgery Department, the Credentialing Committee, the MEC, the Physician Relations Committee, and the Executive Committee of SMMH’s Board of Trustees subsequently signed indicating their approval of her request for surgical privileges to perform the procedures Plaintiff requested [Defendants’ Ex. 32]; (2) a letter from the hospital administrator informing her that she had been granted full privileges at SMMH, subject to the Bylaws; and (3) the Medical Staff Bylaws themselves. See Brintley Dep., pp. 53-54.

First, the signatures of the various members of the medical staff on the Delineation of Privileges sheet merely are indicative of the staff members’ recommendation and the hospital’s approval for Plaintiff to use its facilities to admit her patients for the specific, delineated procedures that she requested. [See Defendants’ Ex. 32; see also Bylaws, Defendants’ Ex. 33, § 4.4.1.] There is nothing in this document indicative of any intent on the part of the hospital to create a contract with Plaintiff. As for the Bylaws, and the hospital administrator’s letter informing her that she had been granted privileges subject to the Bylaws, as set forth above, there is nothing in the Bylaws indicating any agreement on the part of SMMH to be contractually bound thereby.

No case in Michigan has held that the grant of hospital “privileges” creates a contractual relationship between a hospital and a physician. Moreover, Michigan statutes governing hospitals and other health care facilities use the disjunctive in statutes concerning physicians, separately identifying physicians who have a “contract” with a hospital and those who merely are granted “clinical privileges.” See e.g., M.C.L. § 333.20173a (“a covered facility shall not employ, independently contract with, or grant clinical privileges to an individual who ... provides direct services to patients or residents in the covered facility* * *if the individual ... has been convicted of [certain crimes].” If having clinical privileges were to mean the same thing as having a contract with the hospital, such disjunctive treatment in the statutes of “employ,” “contract” and “grant clinical privileges” would be unnecessary.

With respect to Plaintiffs reliance on the Medical Staff Bylaws to demonstrate a contractual relationship, as both parties acknowledge, there is a split of authority among the courts of other states on this question. See Janda v. Madera Community Hospital 16 F.Supp.2d 1181, 1184-1187 (E.D.Cal.1998) (discussing cases). However, as indicated above, Michigan courts and federal courts applying Michigan law have held, albeit in unpublished opinions, that medical staff bylaws do not constitute an enforceable contract. See Macomb Hospital Center Medical Staff v. Detroit-Macomb Hospital Corp., 1996 WL 33347517 at *1 (Mich.App. Dec. 20, 1996); Grain v. Trinity Health, 431 Fed.Appx. 434, 450 (6th Cir.2011) (applying Michigan law). Cf., Ritten v. Lapeer Regional Medical Center, supra, 611 F.Supp.2d at 735 (denying summary judgment on the plaintiffs breach of contract claim where the Chair of the Hospital Board of Trustees testified that the Bylaws are binding on the Board and the medical staff alike. Id. at 735.)

Furthermore, cases holding otherwise, mistakenly conflate medical staff bylaws with hospital bylaws. See e.g., Lewisburg Comm. Hosp. v. Alfredson, 805 S.W.2d 756, 759 (Tenn.1991); Anne Arundel General Hosp. v. O’Brien, 49 Md.App. 362, 432 A.2d 483, cert. denied, 291 Md. 772 (1981); St. John’s Hosp. Med. Staff v. St. John Regional Med. Center, 90 S.D. 674, 245 N.W.2d 472 (1976). These cases all hold that a hospital’s corporate bylaws are part of a medical staff member’s contract with the hospital, but the court in Islami v. Covenant Medical Center, Inc., 822 F.Supp. 1361 (N.D.Iowa 1992) (cited by and relied upon by the court in Ritten, supra, relied upon these cases for the proposition that medical staff bylaws constitute a contract). As succinctly explained by the court in Van v. Anderson, 199 F.Supp.2d 550 (N.D.Tex.2002), aff'd, 66 Fed.Appx. 524 (5th Cir.2003):

[A]n important distinction exists between (a) medical [staff] bylaws, which are created by the medical staff to control the governance of the medical professionals with privileges at the hospital and (b) hospital bylaws, which are a set of bylaws created by the hospital itself and adopted by its governing board. Under the former, it is generally understood that rights promulgated by medical staff bylaws are considered incapable of creating an enforceable contract between the hospital and its physicians. However, under the latter, procedural rights prescribed under hospital bylaws may constitute contractual rights between the physician and the adopting hospital.

Id. at 562-63 (discussing Texas law; emphasis in original and internal citations omitted).

Thus, where, as here, the Medical Staff Bylaws merely authorize that the Medical Staff to make recommendations to the Board of Trustees on the granting, suspension or revocation of clinical privileges, and the Board of Trustees is under no obligation to accept the Staff recommendations, see e.g., Bylaws, § 4.6.3.7; § 7.1.2., 4, the Medical Staff Bylaws do not constitute a binding contract. Van v. Anderson, supra, 199 F.Supp.2d at 563-64; see also Weary v. Baylor Univ. Hosp., 360 S.W.2d 895, 897 (Tex.Civ.App.1962) (concluding that medical staff bylaws did not constitute a binding contract because the bylaws only permitted the staff to recommend and advise on reappointments, and the governing body of the hospital was under no obligation to accept or reject the recommendations of the staff). For all of these reasons, the Court finds that Plaintiff has failed to state a claim of breach of contract. Accordingly, the Court will grant Defendants’ motion for summary judgment on Count IX of Plaintiffs Complaint.

E. BECAUSE PLAINTIFF HAS FAILED TO ESTABLISH THAT SHE HAD A CONTRACT WITH SMMH, SUMMARY JUDGMENT WILL ALSO BE GRANTED ON HER SECTION 1981 CLAIM

Count IV of Plaintiffs Complaint contains a second claim under 42 U.S.C. § 1981, to-wit, a claim that Defendants discriminated against her based on her race (African-American).

42 U.S.C. § 1981 provides:

(a) Statement of Equal Rights. All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as ■ is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) “Make and enforce contracts” defined. For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) Protection against impairment. The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1981.

Plaintiff here presents her claim under § 1981’s “right to make and enforce contract” provision. It is axiomatic that as a threshold matter, to establish a claim of denial of rights under this provision, the plaintiff must show the existence of a contract between himself and the defendant. Van v. Anderson, supra, 199 F.Supp.2d at 562; Ennix v. Stanten, 556 F.Supp.2d 1073, 1082 (N.D.Cal.2008). The Sixth Circuit has held that state law governs as to whether a contract exists between the parties under Section 1981. See Talwar v. Catholic Healthcare Partners, 258 Fed.Appx. 800, 803 (6th Cir.2007), cert. denied, 555 U.S. 1035, 129 S.Ct. 604, 172 L.Ed.2d 463 (2008). Inasmuch as the Court has concluded that the Bylaws fail to establish any cognizable contract between Plaintiff and SMMH under Michigan law, her § 1981 claim, like her breach of contract claim fails as a matter of law.

F. IF PLAINTIFF HAS DEMONSTRATED THAT A CONTRACT EXISTS, HER CLAIMS IN THIS ACTION ARE PRECLUDED BY THE WAIVER OF CLAIMS PROVISION IN THE BYLAWS

Assuming arguendo that the Bylaws constitute a cognizable contract, Plaintiff fares no better.

Article XV of the Bylaws sets forth a “Waiver of Claims.”

Article XV provides:

Each applicant to and member of the Medical Staff and each applicant for and holder of clinical privileges (included Allied Health Professionals and House Physicians):

Waives any claim, present or future, against the Hospital, the Medical Staff, and/or any of their representatives, relative to any good faith act, communication, or recommendation made or requested, concerning such practitioner’s qualifications and conduct and evaluation thereof....

Bylaws Article XV, § 15.1, Defendants’ Ex. 33, p. 63.

In Michigan, “the validity of a release turns on the intent of the parties. A release must be fairly and knowingly made to be valid. If the language of a release is clear and unambiguous, the intent of the parties is ascertained from the plain and ordinary meaning of the language.” Batshon v. Mar-Que Gen. Contractors, Inc., 463 Mich. 646, 650 n. 4, 624 N.W.2d 903 (2001).

The language of the release in the Waiver of Claims provision in the Medical Staff Bylaws is clear and unambiguous. Numerous courts have found such releases in medical staff bylaws binding on plaintiffs who, like Plaintiff Brintley, upon applying for clinical staff privileges, signed an acknowledgment agreeing to be bound by the terms and provisions of Bylaws. See e.g., Deming v. Jacksortr-Madison County General Hospital District, 553 F.Supp.2d 914, 936-38 (W.D.Tenn.2008) (plaintiff-physician’s claims of civil rights violations pursuant to 42 U.S.C. § 1983, antitrust claims under the Sherman Act, and state law claims for breach of contract, business disparagement, defamation, tortious interference with business relationships, intentional infliction of emotional distress, and violations of state statutes held waived by waiver provision in the medical staff bylaws); De Leon v. Saint Joseph Hospital, Inc., 871 F.2d 1229, 1234 (4th Cir.), cert. denied, 493 U.S. 825, 110 S.Ct. 87, 107 L.Ed.2d 52 (1989) (affirming district court’s determination that plaintiffs defamation claims were barred by release executed by him at the time of his application for admitting privileges); Sibley v. Lutheran Hospital of Maryland, Inc., 871 F.2d 479, 486 (4th Cir.1989) (claims of negligent and intentional withholding and termination of hospital privileges held barred by waiver provision in bylaws); Bhan v. Battle Creek Health System, 2012 WL 489161 (WD.Mich., Feb.14, 2012) (granting defendants’ motion to dismiss the plaintiff-physician’s breach of contract claim based on the release contained in the medical staff bylaws, explaining; “If Bhan states a valid breach of contract claim, then Counts 11, 12, 13 and quite likely others, are precluded by the release of liability. If the bylaws do not create a contract, then these counts would be dismissed [pursuant to Grain and Macomb Hospital ]. Thus, assuming, without deciding, that the medical staff bylaws constituted an enforceable contract, Bhan’s breach of contract claims will be dismissed as falling under the release from liability that Bhan entered into by applying for medical staff privileges.” Id. at **5-6).

As noted by the Court in Bhan, and as determined by the courts in Deming, De Leon and Sibley, the Waiver of Claims provision in the SMMH Medical Staff Bylaws precludes all of the claims Plaintiff asserts in this action. As the court in Deming found with respect to the plaintiffs claims in that case — including his Section 1983 constitutional claims' — the waiver provision clearly applies to any and all claims. “[TJhere is no broader classification than the word ‘all.’ In its ordinary and natural meaning, the word ‘all’ leaves no room for exceptions.” Skotak v. Vic Tanny Int’l, 203 Mich.App. 616, 619, 513 N.W.2d 428, app. denied, 447 Mich. 970, 523 N.W.2d 632 (1994). Such a waiver is valid if the surrounding facts and circumstances make .it clear that it was done voluntarily, knowingly, and intelligently. Deming, 553 F.Supp.2d at 938 (citations omitted). See also Skotak v. Vic Tanny Int’l, supra, 203 Mich.App. at 618, 513 N.W.2d 428 (contractual waivers of claims will be enforced where the waiver is fairly and knowingly made.)

The Sixth Circuit set forth the framework for assessing the voluntariness of releases of claims in Adams v. Philip Morris, 67 F.3d 580 (6th Cir.1995). Under that standard,

In evaluating whether a release has been knowingly and voluntarily executed, we look to (1) plaintiffs experience, background, and education; (2) the amount of time the plaintiff had to consider whether to sign the waiver, including whether the employee had an opportunity to consult with a lawyer; (3) the clarity of the waiver; (4) consideration for the waiver; as well as (5) the totality of the circumstances.

Id. at 583 (citations omitted).

Here, there is a clear, unambiguous waiver of “any cl