KENTUCKYONE HEALTH, INC. APPELLANT
BENJAMIN REID, -JR., M.D. APPELLEE
REVIEW FROM COURT OF APPEALS CASE NO. 2015-CA-000092-MR
JEFFERSON CIRCUIT COURT NO. 14-CI-000590
COUNSEL FOR APPELLANT: Katherine Ann Quesenberry Bradley A.
Case Jeffrey Kaplan Jr. DINSMORE 85 SHOHL LLP.
COUNSEL FOR APPELLEE: Larry B. Franklin Kelly Jo Brownfield
Patrick John Smith FRANKLIN LAW GROUP.
COUNSEL FOR AMICUS CURIAE: Wesley Reed Butler Holly Iaccarino
BARNETT BENVENUTI & BUTLER PLLC.
OPINION OF THE COURT BY JUSTICE VANMETER VACATING AND
12.03, a judgment based on a motion for judgment on the
pleadings is reserved for those cases in which the pleadings
demonstrate that one party is conclusively entitled to
judgment. In this case, we must determine whether the Court
of Appeals erred in reversing the Jefferson Circuit
Court's judgment that KentuckyOne Health,
was entitled to a judgment on the pleadings with respect to
Dr. Benjamin Reid's complaint alleging various claims
arising from the Hospital's review of Reid's surgical
privileges at the Hospital. Because we hold that the circuit
court erred in granting the Hospital's motion for
judgment on the pleadings and that the Court of Appeals erred
as well in holding that the Hospital had taken .a
"professional review action" against Reid, we
vacate both decisions and remand to the Jefferson Circuit
Court for further proceedings.
Factual and Procedural Background.
a general surgeon licensed to practice medicine in the
Commonwealth of Kentucky. He was a member of the medical
staff at the Hospital for over forty years. The foregoing
facts appear from complaint and answer in this matter. The
following "facts" are gleaned from the parties'
memoranda or briefs in support of their respective positions
in this matter.
February 4, 2013, Reid received a letter advising that all of
his cases, starting January 31, 2013, and continuing through
June 30, 2013, would be subject to a focus review. Reid
claims that during an impromptu meeting on February 27, 2013,
Dr. William James Monarch, Chair of the Hospital's
Medical Executive Committee, informed him that the Committee
had voted to cancel Reid's surgical and endoscopy
privileges and that he could no longer perform any further
surgical procedures unless he was accompanied by an actively
practicing and board certified general surgeon or
endoscopist. The same day, Reid's assistant received a
phone call from the surgical nurse supervisor letting her
know that Reid would not be permitted to perform a previously
scheduled surgery the following day without the assistance of
another surgeon. Reid was able to find another surgeon to
accompany him during the February 28, 2013, surgery. The
following week, Reid received a formal letter from the
Committee stating that in the interest of patient safety, the
Committee was recommending "that a Board Certified
Surgeon/ Board Certified Gastroenterologist accompany you
into [the] operating room for all future procedures."
Reid did not perform any additional surgeries at the Hospital
after February 2013.
August 5, 2013, Reid received a second letter from the
Committee informing him that the focus review had ended
without any finding of quality concerns. Reid was granted a
conditional reappointment to the medical staff for six
months, which permitted him to practice at the hospital as
long as he met certain conditions. Reid did not exercise his
privileges during the six-month period and his medical staff
membership expired on August 26, 2014. Reid took no further
action to renew his membership and as a result, his
privileges to practice at the Hospital have lapsed.
January 31, 2014, Reid filed a complaint in the Jefferson
Circuit Court against the Hospital seeking compensatory and
punitive damages for breach of contract, intentional
infliction of emotional distress, tortious interference with
business and contractual relations, and slander. The Hospital
answered generally, denying Reid's substantive counts
and, six months later, filed a motion for judgment on the
pleadings pursuant to CR 12.03.
the Hospital claimed entitlement to immunity under the Health
Care Quality Improvement Act of 1986, 42 U.S.C. §§
11101 et seq. (the "Act"), because the
Hospital's conduct with respect to Reid was related to
its professional review activities. The Hospital further
argued that, notwithstanding immunity, all of Reid's
asserted claims failed as a matter of law. Following
Reid's response and a hearing on the motion, the trial
court entered an opinion and order granting the
Hospital's motion and dismissing all of Reid's
claims. Therein, the trial court noted,
Here,, it is clear from the facts that Reid has proffered
that a mandate or recommendation that another surgeon observe
his professional activities in the operating room constituted
a professional review activity. He knew [the Hospital] had
concerns about his competence. Reid did not permit [the
Hospital] to conduct this review of his professional actions.
[The Hospital] took no corrective, adverse action against
him. Reid did not allege any facts in his Complaint or his
response to [the Hospital's] motion that would evidence
[the Hospital] acted outside the scope of its immunity.
Accordingly, he has not rebutted the presumption that [the
Hospital] is immune, and [the Hospital] is entitled to
judgment on the pleadings.
thereafter appealed to the Court of Appeals, arguing that the
trial court had erred in concluding he could not overcome the
rebuttable presumption that the Hospital was entitled to
immunity. His reasoning was that professional review actions
are afforded a rebuttable presumption of immunity only if
certain conditions occur, including notice and hearing, and
that the Hospital had not complied with these conditions.
Court of Appeals undertook a review of the Act and the
distinction it makes between a health care entity's
"professional review action" or "professional