APPEAL by the defendants Frank DiMaio, Glenn Teplitz, and Winthrop Orthopaedic Associates, P.C., as limited by their brief, in an action, inter alia, to recover damages for unfair competition, tortuous interference with contract, tortious interference with business relations, and defamation, from so much of an order of the Supreme Court (Stephen A. Bucaria, J.), entered April 2, 2008, in Nassau County, as denied that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1).
The opinion of the court was delivered by: Florio J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
STEVEN W. FISHER, J.P., JOSEPH COVELLO, ANITA R. FLORIO and THOMAS A. DICKERSON, JJ.
This is a matter involving the termination of the hospital privileges of the plaintiff A. Philip Fontanetta (hereinafter the plaintiff),*fn1 at nonparty Winthrop University Hospital (hereinafter the Hospital). The defendants Frank DiMaio (hereinafter Dr. DiMaio), Glenn Teplitz (hereianfter Dr. Teplitz), and Winthrop Orthopaedic Associates, P.C. (hereinafter collectively the defendants), claim that the plaintiff's privileges were terminated following a peer review process within the meaning of the United States Health Care Quality Improvement Act of 1986 (42 USC § 11101 et seq.) (hereinafter HCQIA), which immunizes health-care participants from civil liability for their actions in that process. The defendants assert that the substance of this lawsuit is to recover damages from them for their actions in the course of that peer review process. They contend that the action should be dismissed because the "documentary evidence" they submitted in support of that branch of their motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) shows that, as a matter of law, such a peer review process took place. Inasmuch as we find that the defendants' submissions, with the possibility of one inconsequential exception, do not qualify as "documentary evidence" within the intendment of CPLR 3211(a)(1), we affirm the Supreme Court's determination denying that branch of the motion.
The plaintiff is a board-certified orthopaedic surgeon who has practiced in and around Nassau County for more than 30 years. From 1980 to 2005, he had continuous and unrestricted admitting privileges at the Hospital.
Dr. DiMaio is Chairman of the Department of Orthopaedic Surgery at the Hospital (hereinafter the Department). Dr. Teplitz is a member of the Hospital's Department of Orthopaedic Surgery and served on the Department's Continuous Quality Improvement Committee (hereinafter the CQI Committee). Both individual defendants are shareholders of the defendant corporation, Winthrop Orthopaedic Associates, P.C.
Beginning in December 2004, after the plaintiff handled several cases with adverse results, the Hospital's Risk Management Department referred five of the plaintiff's cases to the CQI Committee. These cases were discussed during four CQI Committee meetings held on February 18, 2005, March 25, 2005, May 20, 2005, and June 17, 2005. The plaintiff attended only the May 20, 2005, meeting. Following each meeting, minutes which included a discussion of the plaintiff's cases and recommendations of the CQI Committee were generated and printed. The minutes were then individually submitted to Dr. DiMaio, as Chair of the Department, for review.
Upon completion of the CQI Committee process, Dr. DiMaio and the Hospital administration contended that they took various measures to bring the plaintiff into compliance with Hospital procedures, including: sending a letter to the plaintiff from Dr. DiMaio, dated April 15, 2005, regarding his alleged failure to abide by hospital protocol for site verification; sending a letter to the plaintiff from the Hospital dated June 17, 2005, informing him that his charts would be subject to random reviews for the following three months; and conducting meetings between the Hospital and Dr. DiMaio, which resulted in the implementation of a proposed proctorship whereby the plaintiff was required to be supervised by a credentialed spine surgeon for a minimum of 10 surgeries.
In August 2005, the plaintiff met twice with Dr. DiMaio and Hospital administration personnel, who gave him an opportunity to respond to these issues and to address the Hospital's concerns. At the second meeting, the plaintiff admitted that he was unwilling to comply with the Hospital's suggestions. It also appears that a suspension was discussed.
By letter dated August 26, 2005, the Hospital notified the plaintiff of its decision to suspend his admitting privileges. It also informed him of his right to request a hearing before an Ad ...