Oral Argument May 1, 2014.
[Copyrighted Material Omitted]
Appeal from Benton Superior Court. Docket No: 08-2-01534-1. Judge signing: Honorable Robert G Swisher. Judgment or order under review. Date filed: 08/01/2013.
Michael E. de Grasse, for appellant.
David B. Robbins and Renee M. Howard (of Perkins Coie LLP ), for respondent.
Authored by Laurel H. Siddoway. Concurring: George B. Fearing, Kevin M. Korsmo.
[184 Wn.App. 570] ¶ 1 Dr. Venkataraman Sambasivan appeals a second summary judgment dismissal of his claims that Kadlec Medical Center retaliated against him [184 Wn.App. 571] for a discrimination lawsuit he filed against the hospital in June 2008. In this court's opinion in Sambasivan v. Kadlec Medical Center, noted at 171 Wn.App. 1013, 2012 WL 5208657, at *5, we reversed the trial court's first dismissal of the claims, concluding that " both parties have presented competing evidence and inferences to be drawn" from evidence bearing on a causal link between Dr. Sambasivan's lawsuit and Kadlec's adoption and retroactive application of a proficiency standard that rendered him ineligible for renewal of his interventional cardiology privileges. We held that it was " appropriate for the trier of fact to resolve the issue." 2012 WL
5208657, at *5.
¶ 2 Following remand, Kadlec moved for summary judgment on a basis that had been urged in part in its first motion. It argued that Dr. Sambasivan had not identified a contract or employment relationship that would support a retaliation claim and, even if he had, he could not show interference with the relationship. The trial court granted the motion and again dismissed Dr. Sambasivan's retaliation claims.
¶ 3 Central to Kadlec's argument in support of the second dismissal is the fact that it retained total discretion to delineate physician privileges. But even if Kadlec has legitimately taken care to reserve its right to exercise discretion for a good reason, a bad reason, or no reason, the harm it is alleged to have caused for an illicit reason falls within the broad scope of 42 U.S.C. § 1981 and RCW 49.60.210(1). We once again reverse and remand the claims for trial.
FACTS AND PROCEDURAL BACKGROUND
¶ 4 Facts relevant to this second appeal are largely drawn from our opinion in the first. Venkataraman Sambasivan, a native of India, is a board certified interventional cardiologist with a private practice in the Tri-Cities. Kadlec, which [184 Wn.App. 572] operates a hospital in Richland, granted staff privileges to Dr. Sambasivan in 2001.
¶ 5 In 2008, Dr. Sambasivan's clinical privileges were up for renewal. In anticipation of its decision on renewal, the hospital--which had suspended Dr. Sambasivan's privileges and proctored him over concerns in the past--hired an outside professional to review cases of the four interventional cardiologists then on staff. During this process Dr. Sambasivan began to suspect he was being treated differently by the hospital than the other three interventional cardiologists. For that reason, and because he alone among the interventional cardiologists had not been paid to provide call coverage, he sued Kadlec in June 2008, alleging national origin discrimination and five other claims.
¶ 6 Kadlec's board of directors met on August 14, 2008. At that meeting, the board discussed the fact that Dr. Sambasivan had filed the lawsuit. The board also discussed a recommendation made by Kadlec's Medical Executive Committee (MEC) that Dr. Sambasivan be reinstated but that his acute and emergent surgical procedures be restricted. The board rejected the recommendation and voted to reinstate Dr. Sambasivan without the restrictions.
¶ 7 The board also acted at the meeting on a recommendation that all interventional cardiologists perform a minimum of 150 interventional procedures every two years as a condition to retaining or obtaining interventional cardiology hospital privileges. The volume-based proficiency standard is approved
by the American College of Cardiologists and the American Heart Association. Kadlec's Medical Staff Quality Committee and its MEC both recommended that physicians with existing privileges be given a year to come into compliance with the new proficiency standard. The [184 Wn.App. 573] board instead chose to give the proficiency standard immediate effect and applied it retroactively.
¶ 8 Dr. Sambasivan was the only interventional cardiologist on staff who failed to meet the standard as retroactively applied. He was ineligible for renewal of his interventional cardiology privileges as a result. Dr. Sambasivan remained on Kadlec's medical staff with privileges to practice noninterventional cardiology.
¶ 9 In 2009, Dr. Sambasivan amended his complaint, dropping his discrimination claim and adding federal and state claims of retaliation. In support of his retaliation claims, he alleged that he had brought an action for damages, including on grounds of unlawful discrimination, and
32. In retaliation against the plaintiff for his complaint of unlawful discrimination, the defendant stripped him of his privileges to practice interventional cardiology at the defendant's medical facilities in Richland, Washington. This unlawful and retaliatory action occurred on August 14, 2008.
33. By its unlawful, retaliatory action described above, the defendant has violated state and federal law prohibiting retaliation of the sort alleged above.
34. As a direct and proximate result of the defendant's retaliation alleged above, the plaintiff has been injured and has sustained economic and noneconomic damages.
Clerk's Papers (CP) at 6.
¶ 10 In 2010, Kadlec moved for summary judgment dismissal of all of Dr. Sambasivan's claims. The trial court granted the motion as to all of the doctor's claims except his restitution claim for uncompensated call coverage. The restitution claim proceeded to a bench trial at which Dr. Sambasivan prevailed and was awarded damages and his attorney fees related to that claim. The hospital was [184 Wn.App. 574] awarded attorney fees on other claims that it had succeeded in having dismissed.
¶ 11 Both parties appealed. In this court's October 2012 opinion, we reversed the trial court's dismissal of Dr. Sambasivan's federal and state retaliation claims and affirmed the trial court in all other respects. In reversing dismissal of the retaliation claims we focused, as the trial court had, on whether Dr. Sambasivan had presented evidence from which a reasonable jury could find a causal connection between his discrimination lawsuit and the decision of the Kadlec board to adopt and retroactively apply a proficiency standard that would render him ineligible for renewal of his interventional cardiology privileges. Concluding that he had, we remanded the retaliation claim for trial.
¶ 12 Following remand, the trial court conducted a telephonic status conference and invited any further dispositive motions from the parties. Kadlec responded by moving for summary judgment dismissal of Dr. Sambasivan's retaliation claims " because he has not and cannot identify any contract or employment relationship between himself and Kadlec that gives rise to a retaliation claim under federal or state law and, even if he could, he cannot show any interference with such a relationship." CP at 181. Following briefing and argument, the trial court granted Kadlec's motion. Dr. Sambasivan again appeals.
¶ 13 Dr. Sambasivan's complaint alleges that Kadlec's actions " violated state and federal law prohibiting retaliation." CP at 6. In moving for summary judgment, Kadlec recognized that the doctor asserted a federal law retaliation claim under 42 U.S.C. § 1981 and a state law claim under Washington's Law Against Discrimination, chapter 49.60 RCW.
¶ 14 Kadlec persuaded the trial court that to assert a federal retaliation claim, Dr. Sambasivan must identify an [184 Wn.App. 575] impaired contractual
relationship under which he has rights, that Dr. Sambasivan " relies on the [medical staff] Bylaws to provide the contractual nexus," and that the bylaws " cannot provide that nexus because (i) the Bylaws are not contractual and (ii) even if they were, Kadlec has not interfered with or impaired the Bylaws." CP at 188. It argued that to assert a state retaliation claim, Dr. Sambasivan must show that retaliatory action was " taken in the context of either an employment relationship or ... an independent contractor relationship by which the plaintiff performed personal services for the defendant," that Dr. Sambasivan had neither relationship to ...