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Cull v. St. Clare Hospital

April 28, 1997


Appeal from Superior Court of Pierce County;. Docket No: 92-2-06871-6. Date filed: 11/04/94. Judge signing: Hon. Thomas R. Sauriol.

Authored by Ann L. Ellington. Concurring: H. Joseph Coleman, Susan R. Agid.

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- Dr. Michael Cull brought suit against St. Clare Hospital and Drs. Carlo Manetti, Antonio Zantua, and Mary Sullivan, contending that the defendants defamed him and interfered with his business in an attempt to frustrate his exclusive anesthesia services contract with the hospital. Cull also contends that St. Clare did not act in good faith in performing this contract and that Zantua violated his duty of loyalty to Cull in performing an employee contract. At a series of hearings on the motions of the various defendants, the trial court dismissed Cull's claims on summary judgment. The court also granted summary judgment for Zantua on his claim against Cull for withholding wages. We affirm these rulings, excepting the summary judgment ruling entered for Sullivan, which we reverse.

Zantua and St. Clare requested fees, which they were entitled to under their contracts. The court awarded fees, but in amounts significantly less than requested. Because the court did not articulate its reasoning, we cannot evaluate whether the resulting awards constituted an abuse of discretion. We therefore remand this issue.


Discussion of the issues requires a somewhat extensive recitation of the facts, which are complicated. *fn1 Before 1990, St. Clare Hospital did not have a stable group of anesthesiologists. The hospital needed three full-time anesthesiologists. Consequently, it searched for an individual who would form a dependable department. Manetti, who had worked as an anesthesiologist for the hospital for approximately 20 years, was not interested in heading such a department. Cull, who began working at St. Clare in January 1991, offered to head the department and informed St. Clare he could have three full-time anesthesiologists and two nurse anesthetists in place by February 1991.

While the hospital and Cull were negotiating the details of an exclusive anesthesia services contract, Catherine Nugent, St. Clare's senior vice president of operations, asked Sullivan, an anesthesiologist who performed freelance work at the hospital, to review Cull's treatment of a patient. Nugent told Sullivan that this type of review was obligatory because the patient had died in the hospital's care. Sullivan was chosen to conduct the review because Nugent believed that Sullivan was not "associated" with Cull. Sullivan did not make any specific findings or Conclusions regarding Cull's care. She did, however, recommend that the recording charts be revised to include spaces for oximeter and CO2 readings and for an indication that the anesthesiologist had checked the equipment before administering anesthesia. She also recommended a comprehensive review of policies and procedures including the quality and availability of anesthesia services in the Department of Anesthesiology. A document from the Department of Surgery and Anesthesia noted that Cull, as Director of Anesthesia Services, would comply with Sullivan's recommendations.

On March 19, 1991, Cull and St. Clare finalized the exclusive anesthesiologist services contract, which became effective on April 1, 1991, and provided Cull with the sole responsibility for staffing the department. Cull recruited Zantua, who moved to Tacoma from Iowa to practice with Cull in February 1991 and signed an employment contract with Cull in June 1991. *fn2 Cull drafted this contract, which provided that Zantua would be compensated based on the number and type of anesthesiologist services he provided. The contract also stated that any changes to the contract would be in writing and that Zantua would not engage in any practices that were adverse to Lakewood Anesthesia. Manetti refused to sign a similar contract, stating that the terms were unfair.

Beginning in October 1991, the diary entries of Richard Vanberg, St. Clare's Chief Executive Officer, reflect that the hospital had growing concerns about the stability of the anesthesiology department. The entries indicate that Vanberg was concerned that Cull lacked organizational skills and did not handle stress well, and had heard rumors Zantua was looking elsewhere.

In November 1991, Manetti informed the hospital he intended to retire effective December 1991, and would thereafter practice only on a part-time basis. At that time, Vanberg and Sullivan discussed the possibility of her replacing Cull as director of the department. When they had this Discussion, both parties believed Cull's exclusive contract was expiring on December 31, 1991. When Vanberg learned that was not the case, he informed Sullivan the hospital had no intention of changing the contract.

Two weeks later, Sullivan submitted to the hospital a four-page criticism of Cull's credentials and quality of care. Portions of this critique imply that Cull lied about his medical training. For example, Sullivan suggested that Cull quickly left the room after she purportedly caught him mischaracterizing his background:

When I asked Dr. Cull where he took his anesthesia training[,] he said "Stanford"[.] I then told him I had taken my residency at Stanford and had been active there, but I had missed him. He said he was at the Valley most of the time.

FACTS: If you are a Stanford resident you may be assigned to the Valley for three months only.

Dr. Cull left the lounge immediately after the above conversation[.] Cull maintains this conversation never occurred. Instead, he testified he told Sullivan his training at Stanford was in psychiatry.

Sullivan's critique also brought Cull's competence into question by alleging that colleagues at a hospital where he once worked implied he was incompetent:

Queries to nurses and physicians in Manteca [California] have disclosed a history of many problems including deaths with patients and hostility toward Q.A. nurses[.] There were claims of malpractice suits, details of which I did not try to obtain.

According to Joan Ballard, one of the nurses that Sullivan contacted, Sullivan stated she had been "asked to look into [Cull's background, to] investigate him." Ballard could not recall whether Sullivan said the hospital or the State asked her to conduct this investigation. Because he had asked her not to do so, Vanberg became very angry when he learned Sullivan had contacted Cull's colleagues in California. In her deposition, Sullivan acknowledged the hospital did not authorize this review, that she did it "on her own" because she was concerned with the quality of care Cull was providing. She had never, however, practiced with Cull and had only observed his demeanor for "several minutes" through a hallway.

The hospital placed Sullivan's critique in Cull's quality assurance file. Sullivan also informed Dr. Dale Hirz of her concerns regarding Cull's credentials. Hirz, a prominent surgeon at the hospital, was already concerned that Cull's exclusive contract was forcing Manetti to retire. Hirz therefore raised the questions of Cull's credentials to Vanberg. Although the hospital had previously verified Cull's credentials, Vanberg authorized a second review.

On the same day Sullivan submitted her critique to the hospital, Dr. Douglas Jennings mailed his resume to Dr. Billingsley, who is in charge of physician recruiting for Franciscan Health Care Systems, the entity that owns and operates the hospital. Billingsley had apparently received several similar resumes in response to an advertisement for anesthesiologists placed in a professional journal by the hospital sometime in late 1991. *fn3 Although Cull had requested Billingsley's assistance in recruiting anesthesiologists, Billingsley never forwarded these resumes to Cull. *fn4 Jennings realized this was the case when he tried confirm an interview time with Cull. The date on which Jennings attempted this confirmation is not in the record. Because he was scheduling interviews for the first two weeks of February, however, Jennings likely made this confirmation sometime in December or January.

On January 9, 1992, Nugent wrote a letter to Cull stating that it had "come to [her] attention" that he was not "board eligible according to the American Board of Anesthesiology." She therefore requested Cull to advise her of any information to the contrary. Cull, who received his anesthesiology training in Britain, apparently supplied satisfactory information because approximately one week later the hospital approved Cull's credentials, finding them equivalent to U.S. board certification. In fact, Jack Gamble, the Chair of the hospital's Board of Trustees, stated that concerns over Cull's credentials "went away" after the hospital determined what the facts were.

Notwithstanding the approval of his credentials, the Executive Committee of the Professional Staff voted on January 22, 1992, that it would not oppose the termination of Cull's exclusive contract. The Staff Committee made this decision after Vanberg "presented information on Management's concerns regarding management of the Anesthesia Department." The record also reflects that Sullivan and Hirz made a presentation that raised questions about Cull's training, his anesthetic abilities, and his ability to cope with stress. *fn5 The Staff Committee's decision was then relayed to the Executive Committee of the Board of Trustees, which met with Cull on February 6 to discuss possible termination of the contract. According to Zantua, Nugent stated two days before this meeting that the hospital was "kind of leery to renew the contract of Dr. Cull because there was a question[] with his credentials[.]" Cull declared that before this meeting, he had been unaware that "others" had been questioning his credentials.

The minutes of the Board Committee meeting state that "Management's concerns regarding meeting the expectations of surgery department staff and the number of anesthesiologists available to care for patients (the lack of a group being formed) were discussed with Michael Cull." After this Discussion, Vanberg ultimately terminated the contract, believing that Cull "doesn't look at problems with an idea of what he can do about them but blames others." St. Clare provided Cull with written notice of this decision on February 11, 1992. Because the contract provided 90 days notice, the effective termination date was May 10, 1992. *fn6 Jennings, the candidate who had submitted his resume in December, met with Billingsley o n the same day the hospital provided Cull the written notice. In his interview, Billingsley told Jennings the hospital had canceled Cull's contract because of his inability to form a stable practice group.

In March 1992, Billingsley asked Zantua if he would like to head a new anesthesiology group and handed Zantua the resumes received in response to the advertisement. Zantua contemplated forming a new group with Cull, Manetti, and Sullivan. This group was never formed, however, in part because the hospital declined to indemnify Cull as the other anesthesiologists desired, and in part because Cull did not wish to work with Sullivan, who would be heading the group.

Also in March of 1992, Nugent asked Sullivan to review two more of Cull's cases. Sullivan testified that doing so heightened her concerns about Cull's competency. Zantua also became involved with one of these reviews. He had concerns about Cull's documentation and about a dilutional coagulopathy. Cull conceded that Zantua's concerns over the documentation were valid, and eventually updated the chart in question.

In April 1992, Sullivan communicated her concerns about Cull's competency to the Washington State Disciplinary Board. Zantua and Manetti voiced similar concerns. The State Board was already investigating a malpractice claim against Cull. The State investigator noted that the case was charged with political overtones and asked Sullivan, Zantua, and Manetti to put their concerns in writing. ...

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