Taiwo Okusami, M.D. v. Psychiatric Institute of Washington, Inc.

satisfy trict court finds that HHS failed to duty Langon’s

its Ms. accommodate

handicap, the court should take this into formulating remedy

account in for the Langon

harm caused that failure. Ms. not, however, establish,

will be able to solely upon

based either denial of her

promotion or the termination of her em-

ployment, employment adverse HHS’s separately

actions violated the Rehabilita-

tion Act. We affirm the therefore district entry summary judgment

court’s on Ms.

Langon’s and failure-to-pro- termination

mote claims.

Accordingly, judgment of the district part

court is reversed affirmed in

part, and the case is remanded for further

proceedings in connection with Ms. Lan-

gon’s failure-to-accommodate claim.

959 F.2d 1062 OKUSAMI, M.D., Appellant,

Taiwo

v.

PSYCHIATRIC INSTITUTE OF

WASHINGTON, INC., al., et

Appellees.

No. 91-7078. Appeals,

United Court of States

District of Columbia Circuit. 7,

Argued Feb. 1992.

Decided March GINSBURG, Judge: Circuit

D.H. brought this suit in Dr. Taiwo Okusami Psychiatric (the against hospital a diversity PIW), Washington, or Inc. its of Institute Hoffman), (Dr. Howard medical director their corporations over affiliated and two admitting for application of handling his at, medi- to the privileges appointment of, The district hospital. cal staff the court, the having repeatedly allowed after complaint, ultimately plaintiff to amend his case, fail- for prejudice, the with dismissed could upon to a which relief ure state claim granted. be complaint Taking alleged the in the facts Gibson, true, 355 U.S. Conley see v. as 45-46, 99, 101-02, 2 L.Ed.2d 80 78 S.Ct. of the dis- (1957), judgment affirm the we alleg- respect to the counts trict court with laws, inten- ing the violations of antitrust distress, denial infliction of emotional tional conspiracy. “statutory process,” due of counts, remaining alleging remand the We with negligence and tortious interference relationships, to the plaintiff’s the business proceedings. court for further district Complaint Allegations in the I. The medi- practice to Dr. is certified Okusami of The PIW cine in the District Columbia. hospital located the Dis- psychiatric is a trict; president Hoffman is the defendant PIW, and the director of the and medical each corporate defendants are two other of PIW.” parent company said to be “the plaintiff applied for February In 1987the membership” “admitting privileges and routinely granted the and was with PIW temporary a basis those emoluments on being reviewed application “while his was August 1987 act- In the Chandler, and considered.” T. with whom William James the brief, ing medical director of the PIW notified appellant. the for Underwood was on questions of raised plaintiff that because Guidoboni, appellees. for Thomas A. patients and because his care of two about questions his concern- refusal to answer GINSBURG, BUCKLEY, D.H. Before temporary admitting ing patient, a his third Judges. SENTELLE, Circuit only under privileges could be continued supervision. “[pjlaintiff protested The Court filed Circuit Opinion the alia, conclusion, he stating, that had inter Judge D.H. GINSBURG. peer standard re- subject not been the process have his case Judge being able to opinion by Circuit view Separate filed before committee presented and reviewed SENTELLE. peers____” rejected of his The defendants A. The Antitrust Claims plaintiffs request they proceed basis Upon foregoing of the factual pursuant peer “the established review moré, allegations, plaintiff without process immediately ... and revoked [the charges the defendants with “Violation of pjlaintiff’s temporary privileges.” As a re- Antitrust in Restraint of Laws Trade” and sult, “[p]laintiff’s employment phy- the as a to “Conspiracy Violate the Federal Anti- organiza- sician with health maintenance [a The trust Laws.” defendants counter that terminated, causing was him finan- tion]” the antitrust counts do not state a claim for cial, physical, and distress. emotional complaint allege relief the fails to because (1) is, injury,” injury an “antitrust that an him, taking steps against In these the (2) by lessening competition; caused a of “neglected the appropri- defendants to use commerce; (3) an effect interstate and on a mandatory procedures” “by ate and set out cognizable conspiracy. point The last is rules, regulations.” bylaws, PIW’s own and strength Copperweld Corp. made on the of “applied peer The defendants the review 752, Independence Corp., v. Tube 467 U.S. process discriminatorily” plaintiff, the in to 777, 2731, 2744, 104 81 S.Ct. L.Ed.2d 628 predecessor, contrast to his and did so “in (1984), Supreme in which the Court over- punish order to him prior for his refusal to prior approving ruled cases the “bathtub hospital generate use resources that would conspiracy” theory liability, of antitrust profits additional and for revenues the hos- corporation and a wholly held that “and its pital, though hospital even use these of subsidiary incapable owned ... are of con- resources had no direct contribution to spiring each purposes with other for of 1§ proper patient care him.” under 769, of the Sherman Act.” also See id. at (“officers Finally, August 104 2741 or plaintiff employees 1988 the in- S.Ct. at of quired Hoffman, provide the same firm do not the plurality of the defendant Dr. the director, of imperative actors for a 1 conspiracy”) PIW’s medical the about status of § 15, and at 770 n. 104 at his S.Ct. 2741 n. 15 application admitting privi- 1987 (“corporations leges conspire cannot with their membership and at the PIW. After officers”). own position initially taking plain- the the that tiff application, would have to file a new argues plaintiff The on brief that his agreed Dr. original appli- Hoffman that the because, complaint is sufficient under by cation would be the — reviewed PIW’s Health, Pinhas, Summit Ltd. v. U.S. 1989, April Executive Committee. In that -, 1842, 111 S.Ct. 114 L.Ed.2d 366 plain- Committee recommended the that (1991), alleged “an on provi- restraint his application approved subject tiff’s be to the psychiatric accomplished sion of services condition that each of closely his cases “be alleged congressionally an misuse of a reviewed members of Pa- [the PIW’s] regulated peer process” review establishes tient Care Evaluation Committee.” The (1) lessening competition (2) both the of plaintiff protested irreg- “unusual the interstate commerce elements of a requirement” ular “requested a ‘fair cause of action under 1 of the Sherman § hearing’ provided as under the Fair Hear- Calkins, Stephen Act. But The see 1990-91 ing bylaws.” Plan of the PIW The defen- Supreme Court Term and Antitrust: To- grant hearing dants declined to such a but ward Certainty, Greater 60 Antitrust L.J. approved in June 1989 nonetheless the (1992)(“Summit majority Health plaintiff's application disputed without the opinion subject conflicting interpreta- is to condition. tions, to and failed resolve the tensions and misunderstandings

correct the that under- requirement”). lie the interstate commerce Analysis II. regard conspiracy With to the ele clarity exposition, group cause, For of we the of a preliminary ment the we note as plaintiff’s categories: into complaint claims two anti- matter that the does not on its allege any agreement among trust and tort. face the de- is, they to be diverge, are attributing that By form and inten- terests fendants. independent who figures actors regarded tion the indistinct discernible in law as fog complaint, one through capable conspiring. that is are imagination might particularly with a vivid are, need Interesting as these issues we conspiracy portrayed he there a think sees today. as- any them Even not resolve PIW, its among the defendants —the two may in suming hospital and its staff Hoffman, corporate parents, Dr. “the conspire under some circumstances Director for The President and Medical Act, upon no which we have basis Sherman agreement if an be Even such [PIW].” medical staff say hospital that a and its assumed, however, Copperweld, which rea- interests, divergent nor do necessarily have (whether corpora- a sons that two entities say as any read of the relevant cases to we corporations) tion and an individual or two Failing that, the have searched much. we 1 of Sherman conspire cannot under the § allegation complaint any in vain what- for they complete unity a of inter- Act if “have Dr. soever to the effect that Hoffman’s est,” 2741, 771, at 467 U.S. at 104 S.Ct. particular from those of interests in differ finding clearly preclude seem a would to corporate There is no the co-defendants. conspiracy among group. allegation practices medi- that he himself upon prop the plaintiff The stakes his all all, any has eco- at or indeed that he cine that, notwithstanding Copperweld, osition of the independent interest of that nomic hospital “a the of staff are and members that, simply hardly We can assume PIW. capable conspiring one ... of with anoth “doctor,” because he is entitled to be called Compare er” under the Sherman Act. diverge those his interests somehow from Center, Hosp. 851 Bolt v. Medical Halifax president he is corporation of the of which 1273, 1280(11th Cir.1988)(“A hospital F.2d other, align unspecified doc- him with and staff, in and the of its medical members plain- conspiracy suppress in a to the tors corporation agents, to and its contrast a provision psychi- of competition in the tiff’s entities, legally separate are and conse allegation anything, If the atric services. danger no quently there is similar that “to the were motivated that defendants activity is in fact will be what unilateral prior for to punish plaintiff] his refusal [the ”) bootstrapped ‘conspiracy’ into a and surely hospital resources” use [additional] Hosp., 861 Community Oltz v. St. Peter’s suggests that Dr. Hoffman’s interests 1440, (9th Cir.1988) (finding the F.2d 1450 harmony corpo- in of with those the were hospital of in interests the doctors and (The plaintiff might have defendants. rate “sufficiently independent volved to be so argued unity that the of economic interest the conduct that collaborated between Hoffman the is an between Dr. and PIW power previous coalesced economic [them] defense, need an- which not be affirmative ly disparate goals”) with directed at Weiss ticipated complaint. plaintiff in the The 786, (3d Hosp., v. 745 F.2d 814-15 York however, argument, no and we made such Cir.1984) (“We agree ... ... that the hos the case as find it—with the issues take we pital legally conspire its cannot with medi staff”) parties.) as framed the cal v. and Potters Medical Center 568, Ass’n, (6th Hosp. F.2d 573 City 800 complicity, Without Dr. Hoffman’s Cir.1986)(“Because defendant doctors] [the all, moreover, conspiracy no there can be at agents are and of defendant officers [the parent corporate de subsidiary the as capacity thus to hospital], they lack the conspir a fendants cannot alone constitute hospital]”). conspire with defendant [the Accordingly, acy light of Copperweld. plaintiff’s theory, ap The the as whole of claims, plaintiff’s lacking the us, the antitrust plied the that to defendants before is agreement, of an were essential element “may the although Dr. Hoffman have been a properly dismissed for failure state pur some ag-.nt for Defendant PIW for upon be granted. which relief could not wed the claim poses, their interests are as as claim, statutory process corporation too his due ties and its officers So between argu- appellant in- conceded at oral employees”; or because their economic which the 62 upon entirely viability give the fair notice depends

ment the sufficient “to defendant grounds plaintiff’s the claims. the claim the antitrust upon rests.” v. which it Sinclair Klein- appellant argues even The also that dienst, (D.C.Cir.1983). 293 F.2d properly if the antitrust claims were dis missed, they should not dis have been The district Tortious interference. prejudice: with based missed Dismissal court also dismissed the claim “tortious 8(a)(2) 41(b), out, upon points Rules he busi plaintiff-physician’s interference with is “a harsh sanction which should be resort relationship patients,” pursu ness with his only ed to in extreme cases.” But the 12(b)(6),again specify to Rule ant without court district dismissed for “fail[ure] ing support the deficiency. The defendants upon state a claim which can relief be ground district decision the court’s on granted.” pur A ground, on that dismissal plaintiff did allege not intent “[a]n 12(b)(6), suant to Rule is a on the resolution to interfere defendant.” Not so. See ordinarily prejudicial. merits is The (“Defendants paragraph purposefully otherwise; appellant argue does not he applied peer process review discrimina merely misreads the as hav district court torily to him to interfere his function with ing proceeded under the earlier-cited rules. physician”); paragraph a see as also 30 Proceeding as it does from an erroneous (“Defendants’ failure to afford him the premise, argument against prejudice his at encompassed process protections and in its taching point. is beside the bylaws capricious, to arbitrary, amounted and otherwise discriminatory conduct ... B. The Tort Claims. against physician, him as thus a and tor Negligence. plaintiffs The claim tiously interfered with Plaintiff’s business negligence upon for depends proposi the relationship patients”). with his We there impose tion the bylaws upon that PIW the hold fore that the claim for tortious inter a duty defendants to afford him certain ference, negligence, like the claim for is procedural rights. The dis district court adequately pled. missed this count for failure a to state conspiracy. complaint Civil The upon granted, claim which can relief be but alleges engaged that the defendants in a specifically identify did not the deficiency to conspiracy negligently. civil act pleading. in the The defendants assert “[I]n conspiracy the District of Columbia a re plaintiff plead “failed either to or to quires: agreement an to do an unlawful act incorporate bylaws” those into his com manner; or lawful in an a act unlawful an plaint, identify and thus to what “fail[ed] agreement act in overt furtherance of breached, the duty and was ... how the it; participating someone in breach, injury and any, if injured” him. Welch, caused the act.” v. Halberstam part company We with the defendants at 472, (D.C.Cir.1983). Thus, F.2d 705 487 in argument; the of in threshold our view action, plain order to state a cause of the bylaws adequately incorporated the are allege, need in only negli tiff to addition complaint. into complaint the The itself is gence, agreement part an to take in the See, replete e.g., with references them. negligent conduct. (“Defendants’ bylaws, paragraphs 10 own regulations”), (specific descrip- rules and 16 As we in noted connection the with anti- (defen- claims, however, peer process), complaint tion of and alleg- review 18 trust the “neglected agreement dants appropriate any to use the es no of Assuming kind. mandatory procedures agreement and outlined the that an could be inferred from II, bylaws”), Appendix alleged, moreover, and facts which consists the that are the of bylaws plaintiff explain single of a section the entitled “Fair does not a enti- how Although PIW, officers, Hearing origin Plan.” the of the ty—the one of its and two identified, Appendix parent corporations—may was not the defen- be liable for civil recognize hardly conspiracy. See, e.g., Jenkins, dants could failed to have v. Michelin Hence, (“there bylaws. 1, (D.D.C.1989) complaint F.Supp. their own the is 704 4 can

63 Procedure, conspiracy the District of Miller, be no between Practice Federal filed this ac- 1356, Plaintiff at 296-98. its offi- of § Columbia Board Education 6, April on tion in the District Court ..., comprise a these defendants cials since for lack moved to dismiss The defendants capable entering into single entity, not of a for fail- jurisdiction and subject matter Copperweld, U.S. at conspiracy”); 467 cf. upon relief could a claim which ure to state 777, (corporation and at 2744 S.Ct. granted. filed amended Dr. Okusami an be conspire subsidiary wholly owned cannot origi- virtually complaint, identical Act). The 1 of Sherman dis- under § nal, again 5, 1990. Defendants on June is there- conspiracy of the civil claim missal of jurisdiction dismiss lack moved to fore affirmed. 21, a claim. On June and failure to state plaintiff The Intentional distress. 1990, “Second Amend- Dr. Okusami filed a intention also asserts that the defendants to add a Complaint” purported ed which emotional, mental, physi ally inflicted apparently drop party, a intend- party upon In the absence of cal distress him. diversity. ing a Defendants to cure lack outrageous” physical injury, “extreme and again on same moved to dismiss this tort. necessary conduct is a element of addition, grounds. In the defendants Airlines, Inc., New See Abourezk v. York plaintiff because had sought dismissal 1456, (D.C.Cir.1990). Be 895 F.2d court to file this failed to obtain leave of alleged, no such conduct has been we cause complaint. Okusami Dr. second amended of this claim. affirm the court’s dismissal to file a for leave sec- then filed motion complaint. ond On October amended 1990, Memo- III. Court entered a the District Conclusion stating, and inter alia: randum Order reasons, judgment foregoing the For the stating at Despite attempts a three part is in and of the district court affirmed plaintiff has ten- viable claim for relief— part. The plaintiff’s in claims for reversed complaint” for dered a “second amended for negligence and tortious interference theories of filing multiple the re- —and relationships remand- with his business are advances, yet allege he he has to covery proceedings. ed for further to that court tending hospi- to the show that any facts ordered. So rights in entirely its tal was not within supervision patient of insisting upon his SENTELLE, concurring Judge, in Circuit peer care, refusing any in him formal dissenting part part: in and super- precedent to as a condition review my colleagues’ I in affirmance of concur vision, terminating temporary his and in alleging of the viola- the dismissal counts privileges he admitting refused to when laws, in- of the antitrust intentional tions supervision. any such to Absent submit distress, of emotional denial of fact, fliction general allegations of his concluso- process,” conspiracy. I “statutory due and ry allegations wrongdoing of are insuffi- of the my colleagues’ from reversal dissent require a of to defen- cient as matter law negligence of counts of dismissal the to a defense to them---- dants make tortious interference. Nonetheless, granted plaintiff the Court outset, I set a com- attempt comply wish to forth file to

At the to one more leave 8(a). at the plete procedural history of the case Failure to so com- with Fed.R.Civ.P. allay preju- the any level in order fear in dismissal with ply to would result district might point Court I remind the harbor that the District dice. At this would reader 8(a) requires provide the Fed.R.Civ.P. that plaintiff to the with lib- reader that failed contemplated pleading “a sets forth a claim for of construction which eral standard Wright contain a short and ... shall ... by Rules.1 5A & relief the Federal See proceeding complete in below” compilation procedural docket entries the of vant 1. The this 30(a), Fed.R.App.P. any by of required nor the history hampered the woeful- was somewhat attempt pleadings preceding at fifth the ly incomplete appendix appellant in the filed complaint. appendix the "rele- The contains neither Court. 64 8,” of

plain showing statement the claim that “Exhibit referenced nowhere the relief____” pleader the is entitled to complaint, any Again, has I relevance. thought 12(b)(6) it axiomatic that Rule tests 31, 1990, plaintiff October filed On his sufficiency complaint, the of the without “Court-Granted Second Amended Com- See, to e.g., reference evidence. v. Scheuer plaint.” Defendants dismiss moved to for Rhodes, 232, 235, 1683, 416 U.S. 94 S.Ct. 26, April 1991, failure state a claim. On 1686, (1973). nothing I 40 L.Ed.2d 90 find District the the Court entered order of complaint in Dr. me Okusami’s that tells ap- dismissal from Dr. which Okusami now part that this exhibit is of the defendants’ peals. by-laws, applies part it to him that if it is of may In order that the reader make an by-laws, the or that defendants should rec- personal to the compli- informed decision as ognize as it such. attempt of Dr. ance Okusami’s fifth at a meeting complaint requirements the of I, therefore, would the affirm dismissal. 8(a), 12(b)(6), Rule Rule Court’s order, copy I attach of entire that com- Tortious Interference plaint along eleven apparently with exhibits it, though with only filed four of them I also would affirm the Court’s District appear to be referenced therein. At this IX, of dismissal Counts each of VIII point suggest I peruse reader those purports allege which Inter- “Tortious documents. Plaintiff-Physician’s ference With Business tempted point IWhile am at this to rest Relationship With His Patients.” Second upon Dr. pleadings, pro- Okusami’s I will Complaint Amended at 12. Count VIII with a my ceed short further discussion of single “repeats, in a realleges sentence believing reasons that the District incorporates by paragraphs reference negligence Court’s dismissal and tor- through complaint.” IX Count [the] tious interference claims was correct. is except identical it realleges and incorporates “paragraphs 1 through 30.” Negligence The Actions Id. I II of Counts and the Second Amended of gov- The law the District of Columbia Complaint purport to set forth claims for diversity erns this action. Erie Railroad negligence. I thought had it axiomatic Tompkins, 64, 817, Co. v. 304 U.S. 58 S.Ct. negligence requires duty that a on part the (1938); Gray 82 L.Ed. 1188 v. American running of the plain- defendant toward the 10, Express, (D.C.Cir.1984). 743 F.2d 16-17 tiff to conform to a certain standard of plaintiff The stating offered us no law the protect plaintiff against conduct to the un- circumstances under which the District of risks, plaintiff reasonable and the that recognizes Columbia a tort for interference plead further prove must a failure on relationships. However, with business in part the of the defendant to conform to the cases, at least district two our courts have conduct, standard of and that the failure had to apply occasion District of Columbia proximately caused an loss or actual dam- subject. law on this Page Keeton, age plaintiff. to the W. et In al., Prosser Equipment Business Center Ltd. v. and Keeton the Law on of (5th 1984), 30 ed. and authorities Amsco Corp., F.Supp. § DeJur 465 775 Torts (D.D.C.1978), collected I nothing Judge therein. find in the Gasch noted that “[in- complaint that forth any duty sets on with the terference business relations ais tort of part the defendants running toward that in Dr. can arise two situations.” Id. at Okusami; any failure (1) the defendants He described these as where the of contemplated meet standard conduct with a “there is interference contract be- any duty; damages that or proximately plaintiff party,” tween the and some third thereby. I at point (2) caused would note the defendant where interferes with I do majority’s that not share the “plaintiff’s prospective ease in the business advan- determining 2, Appendix the tage.” that untitled Id.

65 allega- v. Lab- Systems Corp. only well-pleaded In Abbott accept Genetic must court (D.D.C.1988), oratories, F.Supp. 407 “accept ‘legal fact, of it need not tions ” Judge Joyce Hens Green stated: Wright Miller, Fed- 5A & conclusions.’ establish a claim for tortious interfer- 1357, To Procedure, § at eral Practice prospective economic advan- ence with I 315, therein. and authorities collected (1) plaintiff ordinarily plead must tage, a paragraph of the com- cryptic in this see of a valid business relation- the existence of plaint at a conclusion law. most (2) knowledge of the ship expectancy, or relationship expectancy part or on the (3) interferer, intentional interference Conclusion inducing causing a breach or termi- or remedy, is an While dismissal extreme relationship expectancy, or nation of the repeated attempts a claim for to state when (4) damage. resultant so, appear fail to do it does not to me relief at Id. 422-23. improper Shroyer, one. Maddox v. an Nothing complaint alleges I see (D.C.Cir.1962)(affirming dismissal F.2d 903 recognize predicate. I that such a factual repeated attempts state claim after a the “Defen- paragraph 19 does state that Rules complying the Federal of Civil with peer purposefully applied the review dants failed). appropri- it is an Procedure Unless to him to interfere

process discriminatorily remedy inadequate pleading, for such ate physician, as his function as a not with 12(b)(6) Rule perceive I no office that then 14, August they in the PIW letter stated view, my perform. In District can paragraph. 2nd Ex- {See Plaintiffs an correctly appropri- held this to be 2).” Court However, my is it under- hibit I standing 12(b)(6) practice remedy. case for that would affirm. of Rule ate / n /'/ AMENDED COMPLAINT COURT-GRANTED SECOND RELIEF, FOR DAMAGES AND FOR INJUNCTIVE TRIAL_ AND DEMAND FOR JURY through counsel, his M.D, Olcusami, Plaintiff Taiwo for Charles Jerome the Defendants against for Ware, P-A, his Complaint damages and injunctive alleges: action, relief in

PacfeajMtdJurwft^ a citizen of is M.D, 1. Okusami, The Taiwo Plaintiff certified Nigeria and a the State and a resident of of Maryland physician medicine of in the District Columbia. practice Washington, of

2. The Institute Defendant, The Psychiatric of of District ("PIW"), D.G a laws organized is under the corporation Columbia, of District and has of business in the Columbia, its principal place providing whose is serve as hospital self-expressed psychiatric purpose care, education and research. patient a citizen is Hoffman, M.D, A Defendant,

3. The Howard is Columbia, and of of the a resident of the District States, United Institute as the and Medical Director for The President Psychiatric employed Washington, ("PIW"). of DC. Inc, America, Institutes Defendant, The Psychiatric business its Virginia,

is in has Delaware place principal incorporated The in of defendant Columbia, Psychiatric the District of is, parent District is ("PIW"), which also located Washington, Institute of DG of Columbia.

-2- 5. Defendant, The National Medical Inc. Enterprises, ("NME”), organized is a under of the State of Nevada; the laws corporation and has Angeles, California, its of business in Los and is the principal place of PIW. parent company

6. The wrongful alleged acts occurred in the herein District of Columbia.

7. The amount in exceeds in $50,000.00 controversy damages amount of sought is million. $5 8. jurisdiction 1332, The Court has 28 U.S.C. Section under diversity citizenship. alia,

9. 1391, Venue is inter based, on 28 U.S.C. Section in that The Washington, Institute of D.C maintains its Psychiatric principal of business the Washington, judicial D.C district place (i) Plaintiff, The Taiwo seeks Okusami, M.D., (ii) damages injunctive against relief compensatory punitive failing Defendants denying him privileges; medical staff unlawfully afford or him with provide encompassed process protections 32-1308, regulatory District of Columbia 32-502, 32-503, codes 32- 32-1307, failing with the afford or him due equal provide process sk (see law 30. infra 1: the Joint Federal protection encompassed by para. (JCAH) guidelines:

Commission Accreditation for assurance Hospitals quality District regulations; law; Columbia Defendants' own rules and bylaws, and otherwise Defendants arbitrary, conduct capricious, discriminatoiy against the Plaintiff; defamation of his character and in referenced orally

-3-

69 business; Plaintiff's documentation; written tortious interference with right or negligence; civil to Plaintiff wrongfully conspiracy deny of violation as a his practice psychiatrist; opportunity profession (The Sherman ActV. IS U.S.C. antitrust Federal laws in of trade restraint Injunction, Act, IS (1982); of the 1 to Section 16 Section Clayton pursuant 4 of the to Section (1982); Damages, Section Treble U.S.G 25 and pursuant Federal violate (1982) ); Act, IS US.G IS Gayton conspiracy mental, of laws; Antitrust and tort of intentional infliction defamation; emotional distress. physical - Negligence

COUNT I reference realleges and by Plaintiff incorporates repeats, 1987, paragraph through On or about February of this Complaint. admitting privileges Okusami, Taiwo M.D., made plaintiff application (hereinafter D.G Washington, with The Institute membership Psychiatric "PIW"). (See Plaintiffs Exhibit 1. 13, 1987, Application Physician February Staff). For to the Medical Appointment granted membership

Plaintiff was routinely temporary considered. admitting being while was privileges his reviewed application meeting called at a August 14, 1987, 12. On about or PIW, Brain, M.D., director and held at acting Lawrence plaintiff medical of his two to his was Dr. Brain that Okusami, informed patient surprise, regarding his were patient cases had been reviewed and that raised questions Committee Care Greenberg care; a Dr. of the Patient Evaluation that Greenberg's to answer alleged PIW, had had refused questions plaintiff -4-

about another as Greenberg that had a result reviewed; that, of patient alleged these raised, concerns that PIW officials believed of supervision Plaintiff was needed in order to maintain Plaintiffs temporary membership admitting privileges. stating,

13. inter alia, Plaintiff that conclusion, this protested subject being he had not been to the able standard review of peer process to have his case and reviewed a before committee of his presented peers, 5J law, law, Federal the Defendants’ District of Columbia required by by-laws. rules, aL;

JCAH and that he' that requested implementation & in this case. mandatory process Stating

14. that Plaintiff was temporary with physician privileges whatever right Defendants asserted to their only. impose using more as a restraints on him believed supervision they necessary, guidelines. but without punishment willingly would

13. Plaintiff he accept responded to PIWs he was afforded the supervision provided opportunity respond concerns of the established review by way peer process. rejected this Defendants, individually collectively, privileges Plaintiff, and Plaintiffs revoked immediately temporary

request case his giving or without him required mandatory opportunity present before a committee of his peers. aof reviews

The review that when peer process requires - aat is the affected physician's performance physician unsatisfactory, — legal right' minimum has a materials the review to all of

-5- to such raised concerns opifijtunity respond unsatifactory peer before or of committee conclusion form review any censorship any discipline, and is This or forced upon physician. type important mandatoty peer what and was rightfully wrongfully is Dr. Okusami review process requested jnfca: (See, 30- strong including Balkinsdh denied. cases par. support, 1989). (D.C. Hill v. 558A2d 304 Capital Hospital. App. As a direct of Defendants' unlawful and result proximate admitting fí¡ and

revocation of Plaintiffs membership temporary a with Health privileges. Plaintiffs as the Group employment physician causing revoked terminated ("GHA") well, was as and Association plaintiff financial, distress, economic, mental, and Okusami severe emotional physical as of his character a and overall defamation piofessional professional, of due to this revocation of his lack embarrassment, because of employment privileges. against actions, and

18. Defendants' collectively, individually as negligent in that their own Plamtiff were merely procedures they adopted use the neglected mandatory appropriate punishment were and defendants" actions outlined in the arbitrary, bylaws; procedures due did Plaintiff not afford process discriminatory, capricious or as hearings committee reviews and through the required necessary or mandated regulations; as (i) own rules and mandated PIWs bylaws, authorities, the Distria (ii) licensing including PIWs required by 32-503, 32-502, regulatory Columbia, to District Columbia codes pursuant -6- (iü) as required by guidelines; (iv) and quality assurance as JCAH

Sl at: required by (See par. infra). Federal law Further, applied purposefully peer

19. Defendants process review discriminatorily to him to interfere with his function as a 14, 1987, physician, they as August stated in the PIW lener of 2nd not paragraph. (See Plaintiff's Exhibit 21

20. supra, The evidence for is that could obvious in PIW 19. not be doing the routinely and not have review discovered Dr. Cavender, plaintiff OkusamPs predecessor, did have a submitted nfil application necessary on requirement any physician board: before could granted be temporary privileges. Further, (dated

21. about Defendants wrote a letter on or 14, August 1987) to Dr. requesting application. Cavender that he submit an This letter to only plaintiff Dr. Cavender was after from PIW written Okusami had questioned meeting the basis such at the for reviews of him 14, held the morning August on submitted the 1987. Dr. Cavender never completed application forms. urges

22. Plaintiff Okusami the Court to review in toto all case, of the To And including Opposition submitted documents in this Answer To Defendants' Proposed Motion To Dismiss Second Amended Complaint (filed July 1990), support on of his assertion that the sole purpose discriminatory for Defendants' him punish treatment of him was for his prior refusal to use additional hospital generate resources that would

-7- use of hospital, though hospital even these profits revenues care under proper patient him. resources direct contribution had no - Negligence COUNT 11 incorporates reference realleges and repeats, Plaintiff 1988, 22, August through On or about paragraphs Complaint. 1 22 of Hoffman, M.D., medical plaintiff of inquired Okusami PIWs Howard 13, director, application to PIW February as 1987 to the status of Plaintiffs (See Plaintiffs Exhibit 4 letter of admitting membership. for privileges and (etfcer- rej»vJi^ of SeptsrvJxicfi, 1988, Okusami, M.D., Hoffman). 22, to Howard August from Taiwo Okusami that Plaintiff responded 24. Defendant Hoffman admitting privileges, since membership a application should file new revoked, had admitting privileges temporary Plaintiffs been membership regarding the initial made had been though approval even or denial no application filed Plaintiff. Hoffman PIWs to Defendant

25. Plaintiff countered rules, rules, law, of Columbia and District bylaws JCAH Federal 32-502, 32-503, aL, <y be a action to taken required formal regulatory codes specifically the PIW and that application, February on his previous decision-making body to rule on the proper Executive Committee was in fact had not Executive Committee Plaintiffs and that the PIW application; required by rules and yet as as application ruled on Plaintiffs n procedures; why application? have to submit new so should Plaintiff then stated that

26. Defendant Hoffman 'old plaintiffs the Executive Committee. would be reviewed by application’ 1989, the on or about PIW April Subsequently, 18» (See Executive Committee recommended of Plaintiff's application. approval Exhibit 9. PIW administrator A1 18, 1989, Plaintiffs from letter April Okusami) Committee also the Executive However, Smith to Dr. Taiwo irregular instituted the arbitraiy, discriminatory, capricious unusual be reviewed (Dr. cases will that ’-.each of closely requirement OkusamPs] Committee,* but did not state (PIW*s] members Care Evaluation Patient justify to the use the was able established criteria for this nor requirement, of this on other Plaintiff, on but not requirement any physician. irregular and this unusual

28. Plaintiff protested then and Plaintiff and was requirement discriminatory, arbitrary capricious; of the Hearing Plan hearing" as under the Fair a "fair requested provided PIW bylaws. hearing", "fair PlaintifTs

29. Defendants denied request of Directors basis, with no Board eventually approved real and PIW since, has and Plaintiff, time 21, Plaintiffs 1989. on June application distress, and economic, emotional suffered severe physical mental financial to his due lack of embarrassment, a"d from his employment professional unlawful result of these as a privileges, revocation of direct proximate actions of Defendants. to failure alleges that the Defendants’ Okusami Plaintiff amounted

afford its him the in encompassed bylaws process protections -9-

75 and othctwise conduct arbitrary, capricious, discriminatory hospital, against as a PIW, the other Defendants him and thus physician, interfered with business with his tortiously Plaintiff's relationship patients, among other wrongdoing. allegations These Okusami are by plaintiff - and given relief as a must to him, matter of law be supported pursuant inter of the Distrio of Columbia Court of alia) opinions, Appeals (Gallagher. Judge) Senior v. in Hill 558 Balkissoon A.2d Capitol Hospital (D.C 304 1989); the United Fourth Circuit US. Court of App. Appeals v. States (1963); Newcomb v. 192 A.2d 817 Eaton Grubbs. 329 F.2d Hospital. (CA4. 1964); Suckle v. Madison General 326 F. Hospital. Supp.

affirmed, 1974); Managers (CA7, F.2d 136 Sosa v. Board of of the Val (CA5, 1971); Verde Memorial Garrow v. Elizabeth 432 F.2d 173 Hospital. (1978);

General Anton San Antonio 382 A.2d 393 v. Hospital.

Community (Cab 1977). 567 P.2d 1162 Hospital App.

COUNT HI Wrongfully to Civil Deny Conspiracy Right Plaintiff or Okusami Opportunity Psychiatrist His Profession as a to Practice gl) (Pursuant (1); Common-Law; 15 ACJS. Conspiracy el realleges and reference 31. Plaintiff incorporates repeats, paragraphs through I this 30 of Complaint.

10-

76 IV

COUNT. Antitrust Laws in Restraint oí Traite Violation of incorporates by realleges and reference repeats, 32. Plaintiff Complaint. through of this paragraphs 1 22

COUNT V Violation of Antitrust Lam in Restraint of Trade incorporates reference realleges repeats, 33. Plaintiff paragraphs through Complaint. 1 30 of this

COUNT VI Antitrust Law» Conspiracy the Federal to Violate by reference incorporates realleges repeats, 34. Plaintiff through Complaint. paragraphs 1 22 of

COUNT VII Laws Violate the Federal Antitrust Conspiracy by reference incorporates realleges and repeats, Plaintiff Complaint. paragraphs through of this

COUNT VIH Plaintiff-Physician's With Interference Tortious Patients Relationship With His Business by reference incorporates realleges repeats, 36. Plaintiff Complaint. paragraphs through 1 22 of this - 11

-

77 COUNT DC Plaintiff-Physician’s Interference With Tortious

_Business His Patients With Relationship incorporates by realleges reference repeats, 37. Plaintiff paragraphs through Complaint. 30 of this -

COUNT X Defamation incorporates reference repeats, realleges and 38. Plaintiff paragraphs through Complaint. 37 of this

COUNT XI The Tort of Intentional Infliction of Emotional and Distress Physical Rental by reference incorporates repeats; realleges and 39. Plaintiff through Complaint paragraphs 1 38 of

COUNT XII The Tort of Intentional Infliction Physical Distress MentaL Emotional and incorporates reference realleges repeats, Plaintiff through Complaint 39 of this paragraphs 1

WHEREFORE, as follows: judgment Plaintiff demands suspending revoking or (1) That Defendants’ action in aside, enjoined privileges or set staff be Plaintiffs medical maintaining any references and/or enjoined from Defendants be written, documentation, suspension or such revocation oral and/or privileges; Plaintiffs

- 12- and compensatory Plaintiff That award (2) the Court Defendants, severally, in the jointly damages against aD of punitive million; $5of amount attorneys’ costs and his

(3) award Plaintiff That the Court action, just as is relief grant such and further other fees proper.

- 13-

CEBTinCATC..OF SERVICE originally-signed I that a HEREBY CERTIFY truc and correct copy Complaint foregoing Amended was Court-Granted Second 3<Ay October, 1990, first-class, to: mailed postage prepaid

Case Details

Case Name: Taiwo Okusami, M.D. v. Psychiatric Institute of Washington, Inc.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Mar 31, 1992

Citation: 959 F.2d 1062

Docket Number: 91-7078

Court Abbreviation: D.C. Cir.