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Hussain v. Ascension Sacred Heart --St. Mary's Hospitals, Inc.

United States District Court, W.D. Wisconsin

October 21, 2019



          WILLIAM M. CONLEY District Judge.

         Plaintiff Mohammed A. Hussain asserts defamation and negligence claims against defendant Ascension Sacred Heart -- St. Mary's Hospital, Inc. (“the Hospital”), over a negative performance evaluation letter. The Hospital counterclaimed, alleging that Hussain had entered into a contract when he applied to work at the Hospital and breached this contract when he brought this lawsuit and refused to execute a release of claims. Presently before the court are parties' cross-motions for summary judgment.[1] (Dkts. ##35, 42.) For the reasons discussed below, the court concludes that plaintiff has failed to produce sufficient evidence for a reasonable jury to find in his favor on his defamation and negligence claims. The court further concludes that defendant has demonstrated that no reasonable jury could find against its counterclaims for breach of contract. Accordingly, the court will deny plaintiff's motion and grant summary judgment in favor of defendant. The only issue that remains is what relief, if any, is warranted for plaintiff's breach of contract, which the court will consider in further proceedings as set forth in the order below.


         Plaintiff Mohammed A. Hussain is a radiation oncologist and medical doctor. Defendant Ascension Sacred Heart -- St. Mary's Hospital, Inc., hired Hussain to work as a “locum tenens” radiation oncologist for three short periods in 2011 and 2013. Locum tenens are physicians hired on a temporary, as-needed basis. Prior to providing services at the Hospital, Hussain signed a Statement of Application (“the Application”), which provided in relevant part:

I understand that the hospitals and Medical Staffs where I have applied may receive requests from other hospitals, medical societies, and other legitimately interested organizations and institutions, for information pertaining to my qualifications and performance as an applicant and/or member of the Medical Staff. . . . I also recognize that in seeking and exchanging information, as well as in the peer review and evaluation process, candid evaluations may give rise to statements that may be critical or otherwise arguably defamatory of me.
I specifically agree and consent to the following: . . . To release from liability, to the fullest extent permitted by law, the hospitals and all hospital representatives for their acts in connection with evaluating me, this application and my credentials, qualifications and experience; . . .

(Hussain Dep., Ex. 2 (dkt. #39-2).)

The Application also expressly incorporated the terms of the Medical Staff Bylaws (“the Bylaws”) as follows:

I pledge . . . to acknowledge and abide by any Medical Staff Bylaws requirement for release and immunity from civil liability.
I specifically agree and consent to the following: . . . To abide by the terms of the Medical Staff and hospital Bylaws in all matters relating to the consideration of this application . . . . In this regard, I acknowledge that I have received and had the opportunity to review the Medical Staff Bylaws, Rules and Regulations, and any Hospital Bylaws or rules and policies that may pertain.

(Hussain Dep., Ex. 2 (dkt. #39-2).)

         Finally, the Bylaws included a section titled “Immunity from Liability, ” which provided in relevant part:

The following shall be conditions to any individual's application for Medical Staff membership or exercise of clinical privileges at the Hospital:
(a) any act, communication, report, recommendation or disclosure, with respect to any individual performed or made at the request of an authorized representative of this or any other health care facility, for the purpose of achieving and maintaining quality patient care in this or any other health care facility, shall be privileged to the fullest extent permitted by law;
(b) such privileges shall extend to members of the Medical Staff and Governing Body, the President and designated representatives and to third parties who supply information to any of the foregoing authorized to receive, release, or act upon the same. For the purposes of this Section, the term “third parties” means both individuals and organizations who have supplied information to or received information from an authorized representative of the Governing Body or of the Medical Staff;
(c) there shall, to the fullest extent permitted by law, be absolute immunity from civil liability arising from such act, communication, report, recommendation, or disclosure, even where the information involved would otherwise be deemed privileged;
(d) such immunity shall apply to all acts, communications, reports, recommendations, or disclosures performed or made in connection with this or any other health care institution's activities related but not limited to:
(1) applications for appointment or clinical privileges;
(5) medical care evaluations;
(e) the acts, communications, reports, recommendations and disclosures referred to in this Section may relate to an individual's professional qualifications, clinical competency, character, ethics, or any other matter that might directly or indirectly have an effect on patient care;
(f) in furtherance of the foregoing, each individual shall, upon request of the Hospital, execute releases in accordance with the tenor and import of this Section in favor of the individuals and organizations specified in Section 7.1(b), subject to such requirement, including the exercise of a reasonable effort to ascertain truthfulness, as may be applicable under the laws of this state. Execution of such releases is not a prerequisite to the effectiveness of this Section; . . . .

(Banas Decl., Ex. 1 (dkt. #40-1) 34-35.)

         Hussain did not read the Bylaws prior to signing the Application, and he does not recall reading the Application itself prior to signing it. Hussain further testified that there was a “rush” to complete the Application. (Hussain Dep. (dkt. #39) 46.) He did not ask any questions about the Application or Bylaws, nor ask if he could modify them. When Hussain signed the Application in 2011, he had other options for locum tenens placements available to him.

         Hussain was assigned to the Hospital for a total of twelve days, working three, four-day stints in June 2011, July 2011, and March 2013. During each of the periods that Hussain worked at the Hospital, Kimberly Hetland was the manager of the Radiation Oncology Department, functioning as a dosimetrist -- a medical professional, though not a physician, who works with radiation oncologists to come up with treatment plans for patients. During and after Hussain's assignments, other members of the radiation oncology team raised a number of concerns with Hetland in her capacity as manager about Hussain and his work. After Hussain's third assignment in 2013, therefore, Hetland requested that Hussain's next scheduled assignment with the Hospital be cancelled.

         In January 2015, Hetland completed a form -- which the parties refer to as a “forever letter” -- that included a “professional/peer evaluation” of Hussain. (Pl.'s Resp. to DPFOF, Ex. 2 (dkt. #53-2).) The forever letter included a “check-the-box” portion where Hetland mostly ranked Hussain as “below average” on skills such as medical knowledge, patient care outcomes and professional demeanor. The letter also included a narrative portion where Hetland wrote in part that she “would not have [Hussain] come back even if we were in dire need.” (Id. (emphasis in original).) This letter was provided to at least two medical doctors who worked outside of the Hospital.[3]

         On July 11, 2018, Hussain sued the Hospital over this forever letter, claiming that its issuance constitutes actionable defamation and negligence. On September 14, 2018, the Hospital requested that Hussain execute a release of claims against the Hospital. When Hussain did not do so within ten days, the Hospital filed two breach of contract counterclaims against him, claiming that he breached the terms of his Application and incorporated Bylaws in both filing suit and refusing to execute the release agreement.


         Now before the court are the parties' cross-motions for summary judgment.

         Defendant has moved for summary judgment on plaintiff's defamation and negligence claims, as well as on its own breach of contract counterclaims. Plaintiff seeks ...

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