Tommie M. GRANGER, M.D. v. CHRISTUS HEALTH CENTRAL LOUISIANA, et al., 97 So. 3d 604

PETERS, J. |! Both the plaintiff, Dr. Tommie M. Granger, and the defendant, Christus Health Central Louisiana, appeal a trial court judgment based on a jury damage award of $8,900,000.00 to Dr. Granger. For the following reasons, we amend the trial court judgment to reverse the jury’s finding of a violation of the Louisiana Unfair Trade Practices and Consumer Protection Act, amend the general damages award by reducing it to $100,000.00, and amend the special damage award by reducing it to $2,894,000.00. We affirm the trial court judgment in all other respects.

DISCUSSION OF THE RECORD Pre-Incident History Resolution of the issues raised in the appeal now before this court involves an analysis of the professional relationship existing between a hospital and one of its staff physicians. This particular case is fact-intensive and involves the

interpretation of the hospital’s written procedures versus the procedure actually used to discipline Dr. Granger. In large part, it involves a determination of the due process rights owed a physician when the hospital chooses to effect its discipline procedure against that physician. Christus Health Central Louisiana is a public health provider doing business as Christus St. Frances Cabrini Hospital in Alexandria, Louisiana. For the purpose of clarity in this opinion, we will refer to the defendant, hereinafter, as Cabrini Hospital.

The rights, privileges, and responsibilities of the physicians associated with Cabrini Hospital are governed by a set of written rules, entitled “BYLAWS OF THE MEDICAL STAFF” (Bylaws), containing seventeen articles, with sections and subsections to each article. Unless otherwise specifically stated, reference herein to an “Article” will be a reference to an

article in the Bylaws. laThe general

definitions applicable to the hospital/physician relationship are found in

Article I.

Article I,

Section 2 defines the medical staff of the hospital as including “all medical, osteopathic, dental, oral surgery and podiatric physicians holding unlimited licenses from the appropriate Louisiana State licensure board who are privileged to attend patients in the Hospital.”

Article I,

Section 3 recognizes the governing board of the hospital as the ultimate authority in hospital/physician issues. In the case of Cabrini Hospital, this governing board is its Board of Directors.

Article II establishes five categories of medical staff membership at Cabrini Hospital: active, associate, courtesy, honorary, and affiliate. One of the permanent committees created by

Article XI, Section 5(1), and recognized in

Article I,

Section 4 as the executive committee of the medical staff, is the Medical Executive Committee. The actions of this Medical Executive Committee in relation to this litigation are critical to the analysis herein. Articles II through VI provide a detailed process whereby a physician receives hospital privileges as a member of the medical staff so that he or she may treat patients at the hospital.

Article VI provides that reappointment to the medical staff is not automatic and that reappointment is for a maximum period of two years. Furthermore,

Article VII provides a detailed process by which a physician’s hospital privileges can be suspended or terminated. The plaintiff in this litigation, Dr. Gran-ger, is an Alexandria, Louisiana cardiovascular surgeon who had originally acquired hospital privileges as a member of the active Medical Staff at Cabrini Hospital in 1996. He renewed his hospital privileges at Cabrini Hospital without any difficulty each time it was necessary between 1996 and the December 2002 incident giving rise to this | «litigation.

In December of 2002, he was in good standing with Cabrini Hospital, and his hospital privileges were not subject to renewal until July 80, 2008. From a personality standpoint, Dr. Granger could best be described as an intense individual who was sometimes difficult to work with. According to Dr. John Simoneaux, a Pineville, Louisiana psychologist who examined Dr. Granger on March 7, 2000, in relation to a child custody matter and was one of the many professionals who testified at trial, Dr. Granger is a passive-aggressive individual who has a tendency to be irritable, sullen, argumentative, and obnoxious.

When he first acquired Cabrini Hospital privileges, Dr. Granger was associated with MacArthur Surgical Clinic (Surgical Clinic) in Alexandria and remained so until he left the Surgical Clinic in mid-2002. According to Dr. James Driscoll Knoepp, a cardiovascular surgeon associated with the Surgical Clinic during the same time period as Dr. Granger, there were moments of friction between Dr. Granger and the other physicians with whom he worked. Dr. Knoepp testified that in June of 2001, the Surgical Clinic partners caused Dr.

Granger to undergo a psychological evaluation based on complaints from some of the clinic’s professional staff. Dr. Knoepp also testified that a November 16, 2001 incident at Rapides Regional Medical Center (Rapides Regional), another health care provider in Alexandria, resulted in Dr. Granger taking a voluntary leave of absence from that hospital and undergoing a physical examination, a neurological examination, and a psychiatric examination. The Surgical Clinic suspended Dr. Gran-ger’s privileges during the leave of absence, then reinstated them when he returned to Rapides Regional. Dr.

Knoepp also testified that on May 9, 2002, the physicians at the Surgical Clinic caused a letter to be sent to Dr. Granger instructing him to enroll for a | .(Comprehensive assessment with the Physicians’ Health Foundation of Louisiana (Physicians’ Health Foundation). Dr. Knoepp explained that this action was precipitated in part by an internal dispute concerning the finances of the Surgical Clinic and Dr. Granger’s unwillingness to cooperate with the other physicians in addressing this dispute. Dr. Granger refused to undergo a fourth psychological evaluation in just over two years and left the Surgical Center.

Still, Dr. Knoepp testified that he was personally satisfied with the outcome of the June 2001 mandated psychological evaluation and, given his close personal relationship with Dr. Gran-ger, he took no

part in the investigations ultimately giving rise to this litigation. Dr. Granger did not necessarily disagree with Dr. Simoneaux’s description of his intense nature. He testified at trial that the June 2001 referral arose because, at that time, he was involved in a heated divorce and custody matter. He complied with his former partners’ mandate because he understood that they were concerned his marital difficulties were subjecting him to excess stress that might impact his practice. According to Dr.

Granger, he underwent a two-day evaluation and the psychologist found him to be free of any psychiatric, substance abuse, or personality problems. With regard to the incident at Rapides Regional referred to by Dr. Knoepp, Dr. Granger testified that he agreed to obtain a general physical examination and to be examined by a neurologist and a psychiatrist of the hospital’s choice.

Again, the subsequent tests revealed no problems that would affect his ability to perform his professional duties. | ¡Although he had no difficulty in renewing his hospital privileges at Cabrini Hospital between 1996 and December of 2002, Dr. Granger’s intense personality caused his relationship with Cabrini Hospital during that period to sometimes be less than smooth. According to Dr. Michael Finley, Cabrini Hospital’s Chief Medical Officer from May of 2001 through May of 2003, Dr.

Granger was constantly critical of the Cabrini Hospital nursing staff and equipment and often made unsolicited suggestions concerning the improvement of patient care. Dr. Granger confirmed Dr. Finley’s assertions on this point and acknowledged that he had difficulties over the years with Cabrini Hospital’s equipment as well as the personnel assigned to his patients. In mid-2002, and while still maintaining privileges at Cabrini Hospital, Dr. Granger accepted the position of Medical Director for Cardiovascular Services at Rapides Regional. Even before assuming this position at Rapides Regional, Dr.

Granger had begun referring his high-risk patients to that facility for surgical procedures and treatment. Dr. Finley testified that Dr. Granger’s activities in referring potential Cabrini Hospital patients to any other hospital was not only unacceptable to him, but that Stephen Frances Wright, Cabrini Hospital’s Chief Executive Officer, had expressed his frustration to Dr. Finley concerning Cabrini Hospital’s loss of patients by Dr. Granger’s referral elsewhere. Incident History With that general background, we turn to the incident that gave rise to this litigation. On December 18, 2002, one of Dr.

Granger’s patients at Cabrini |fiHospital, an almost ninety-year-old male, had undergone a carotid endarterectomy and was awaiting open-heart surgery involving a bypass procedure that was scheduled for the next day. Shortly before 4:00 a.m. on December 18, Amy McKithen, one of the nurses at the hospital, telephoned Dr. Granger and reported that the patient was having difficulty urinating and that there was drainage at the site of the surgical intervention in the neck. Dr.

Granger testified that he authorized the nurse to insert a Foley catheter to resolve the urinary problem, instructed her to let the incision site drain, and instructed her to call him if the patient began experiencing any respiratory problems. Kimberly Renee Fannin Trissler, another nurse-employee of Cabrini Hospital, relieved Ms. McKithen at 7:00 a.m. on December 18. She testified at trial that Ms. McKithen related her conversation with Dr. Granger to her before leaving work. When Ms.

Trissler reviewed the patient’s chart at 7:30 a.m., she found no notation of respiratory distress, and the only notation concerning the incision site in the neck was that it was swollen and bruised. In fact, the patient’s chart contained no indication that there had been drainage from that incision during the night. Ms. Trissler observed no additional swelling in the patient’s neck area from 10:00 a.m. until 1:00 p.m. and, when she removed the dressing to clean and air the wound at 1:00 p.m., there was still no evidence of distress. However, according to Ms.

Trissler, things took a turn for the worse at 2:00 p.m., when the patient began to complain of shortness of breath despite an oxygen level that appeared to be within normal limits. 17At approximately 2:30 p.m., Ms. Tris-sler decided to call Dr. Granger and report the respiratory problem. However, before she made the telephone call, she observed Dr. Robert Freedman, an Alexandria, Louisiana cardiologist, standing at the nurses’ station. Instead of telephoning Dr. Gran-ger, she asked him to examine the patient. Dr. Freedman was the patient’s cardiologist and had referred him to Dr. Granger for surgery.

When he examined the patient, Dr. Freedman observed that the patient had developed a large hematoma at the incision point in his neck but was not in respiratory distress. Concluding that there existed a potential for significant complications if the patient’s problems were not addressed immediately, Dr. Freedman instructed Ms. Trissler to telephone Dr. Granger. When Ms. Trissler expressed concern over Dr. Granger’s reaction if she were to telephone him, Dr. Freedman volunteered to make the call. Dr. Freedman testified that when he telephoned Dr. Granger and informed him of the developments with the patient, Dr.

Granger responded by stating that he would come to Cabrini Hospital immediately. Dr. Granger testified that when he received Dr. Freedman’s telephone call, he had just completed one coronary bypass surgical procedure at Rapides Regional and was in the final steps of scrubbing up to begin a second surgical procedure on another patient who was already under anesthesia. Initially, after receiving Dr. Freedman’s call, Dr.

Granger telephoned Cabrini Hospital to see if anyone was available in the operating room to take care of the problem, but when he found no one available, he left his already-anaesthe-tized patient and drove to Cabrini Hospital. |sMs. Trissler testified that after Dr. Freedman made the telephone call to Dr. Granger, he instructed the nurses to make sure the documentation was in order before Dr. Granger’s arrival because otherwise, “it won’t be pretty.” She testified that Dr. Granger walked onto the hall as she walked out of the patient’s room, and she heard him slam the door from the stairway.

She asserted that Dr. Granger was angry — “bitching” and “complaining and griping and cussing.” According to Ms. Trissler, Dr. Granger commented about the patient he had waiting at Rap-ides Regional and suggested that the nurses at Cabrini Hospital were “incompetent and stupid.” She then left to retrieve a surgical tray for the doctor. When Ms. Trissler returned to the patient’s room, Dr. Granger was already in the process of removing a blood clot from the patient’s neck with his fingers. She suggested that Dr.

Granger was still complaining of incompetent nursing care, but she “toned him out.” She did observe that the patient was awake and alert during the procedure. According to Ms. Trissler, the patient’s incision was still oozing blood when she assisted in moving him to the Intensive Care Unit (ICU) of the hospital. Ms. Trissler acknowledged at trial that this was the only unprofessional encounter she ever experienced with Dr. Granger. Evelyn Lacombe was another nurse working the floor on the afternoon of December 18, 2002. She was not assigned to monitor Dr.

Granger’s patient, but had seen him at mid-morning and observed no distress. She testified that while she would have had no problem placing the telephone call to Dr. Granger pursuant to Dr. Freedman’s instruction, she was aware that Dr. Granger had a propensity to interact angrily with people. She also noted in her testimony that Dr. Freedman admonished the staff to make sure the patient’s file was properly documented before Dr. Granger’s arrival. li)Ms. Lacombe testified that Dr.

Gran-ger arrived at the hospital in an angry mood: raging at the staff, using profanity, and condemning all Cabrini Hospital nurses as incompetent. In fact, according to Ms. Lacombe, he demanded the presence of Dr. Finley and Barbara Griffin, Cabrini Hospital’s Divisional Nursing Director, even before he entered the patient’s room. While criticizing Dr. Granger’s demeanor, Ms. Lacombe also acknowledged that Dr. Granger had a right to be concerned about the care given to his patient. Dr.

Granger testified that he found his patient at Cabrini Hospital unattended, suffering from a large hematoma in his neck, and in severe respiratory distress. He also acknowledged his anger given the situation he found, and, before attempting to treat his patient, he summoned Dr. Finley and Ms. Griffin to the room so they could observe the patient’s condition. He then cut the sutures at the incision site, and the blood that had accumulated in the wound spurted out. Given the amount of blood, he concluded that it had accumulated, over a significant period of time.

After treating the wound and finding no active bleeding, Dr. Granger packed the wound and ordered that his patient be transferred to ICU. According to Dr. Granger, he took this step because he wanted his patient monitored more closely. He fully expected the staff to telephone him if new problems arose and, absent any further emergencies, he intended to return to Cabrini Hospital that evening to explore the wound, find the source of bleeding, and repair that defect. Before leaving the hospital, he telephoned the Cabrini Hospital operating theater to reserve a room that evening to make the necessary repairs. Dr.

Granger testified that this telephone conversation occurred at approximately 3:07 p.m. Dr. Finley testified that when he arrived on the patient’s floor, Dr. Granger met him in the hall and told him that he wanted Dr. Finley to see the condition of|10the patient. When they entered the patient’s room, Dr. Finley observed that the patient was having trouble breathing. He also recognized that Dr. Granger was angry, but he did not hear Dr. Granger speak to the nurses and did not hear him use any offensive or inappropriate language. At trial, Dr.

Finley testified that his only concern at the time of the incident was his discomfort in hearing Dr. Granger speak ill of the nurses in the presence of the patient. Specifically, Dr. Finley heard Dr. Granger complain, in the patient’s presence, about the failure of the nursing staff to call him earlier. Ms. Griffin testified that when she arrived at the patient’s room, she observed that the patient had edema, or swelling, in the neck from the jaw line to the clavicle, both above and below the bandage. She also recognized that Dr. Granger was clearly upset. Ms.

Griffin testified that despite his obvious irritation at the situation, Dr. Granger was not unprofessional in his comments or actions directed toward her or Ms. Trissler, the only other nurse present at the time. Instead, he focused on the care of his patient. In listening to Dr. Granger’s complaints, Ms. Griffin assumed that Ms. Trissler was the individual who failed to timely call Dr. Granger and began to question her concerning this failure. Ms. Trissler responded that the staff did call the doctor, but Dr.

Granger then suggested that the telephone call from Ms.- McKithen related only to the patient’s need to urinate, not swelling at the incision site. With this misunderstanding in mind, Ms. Griffin reviewed the patient’s medical chart and found a notation that at 2:00 a.m. that morning there was a small amount of bloody drainage seeping from the incision point in the patient’s neck. The patient’s medical chart also contained an entry wherein Ms. McKithen noted that she notified Dr. Granger that the patient’s bladder was distended and there was |n drainage from the right neck incision.

The 4:00 a.m. entry suggested that there was a significant decrease in the drainage to the wound, and the remaining entries made by Ms. Trissler, after she came on duty and through 2:00 p.m., reflected no cause for alarm. Thus, Ms. Griffin saw no reason for anyone to contact Dr. Granger before that time. However, according to Ms. Griffin, the 2:15 p.m. notation in the patient’s medical chart was clearly cause for alarm. In that entry, Ms. Trissler documented her request to Dr. Freedman, noting that the patient was suffering from nausea, vomiting, and shortness of breath. Ms.

Griffin testified that any swelling of the incision site would have been a cause for alarm and would have mandated a telephone call to Dr. Granger. However, there was no evidence of such an event before Dr. Freedman’s examination. Additionally, she stated that in her experience a hematoma could manifest itself in a short period of time, especially if it is arterial in nature. Ms. Griffin testified that she assisted Dr. Granger in evacuating the patient’s hematoma and in packing the wound. She was present when Dr. Granger ordered that the patient be transferred to ICU and observed Dr.

Granger’s exit from the floor immediately thereafter. According to Ms. Griffin, almost immediately after the patient was placed in ICU, the nurse on duty summoned Dr. Finley to the unit because of blood flowing from the repaired hematoma site. Although the patient’s medical chart contained the entry that the plaintiffs blood was “oozing” from the wound, Dr. Finley testified that he found the patient bleeding profusely. He | ^testified that he immediately telephoned Dr. Granger, who was in the process of performing surgery on his Rapides Regional patient. Dr.

Granger deviated from his surgery long enough to contact Dr. Philip Lindsay, an Alexandria, Louisiana trauma surgeon and critical care specialist, who was present at Rapides Regional. Dr. Lindsay agreed to address the apparently emergency situation at Cabrini Hospital for Dr. Granger and immediately traveled from Rapides Regional to Cabrini Hospital, arriving at 4:05 p.m. Dr.

Lindsay testified that after observing the condition of the hematoma and the patient’s respiratory difficulty, he transferred the patient to an operating room, found a small bleeding point in the area of the hematoma, repaired it, and closed the incision. The coronary bypass surgery scheduled for the following morning did not take place. After completing his surgical duties at Rapides Regional on the afternoon of December 18, Dr. Granger returned to Cabrini Hospital to learn that Dr. Joseph Patton, the anesthesiologist scheduled to assist in the next day’s surgery, had can-celled the procedure. Dr.

Granger immediately replaced the patient on the next day’s surgical roster. The next morning, Dr. Granger was informed that his patient had again been removed from the surgery roster without anyone consulting with him. He was unable to contact Dr. Patton, but had a heated telephone conversation with Dr. Patton’s partner, Dr. Francis Robichaux, concerning the situation. During the conversation, both doctors expressed anger and frustration over the situation. Dr.

Robichaux explained at trial that he refused to participate in the surgery as it was his opinion the patient was not in an “optimal condition” to undergo the procedure. Dr. Patton testified that he found it necessary to cancel this “elective” surgery until the patient stabilized. 1 ^Notwithstanding the opinions of Dr. Robichaux and Dr. Patton, Dr. Freedman saw the patient again on the morning of December 19, 2002, and found that his cardiac symptoms were stable, although he still suffered from respiratory problems. Based on his overall findings, Dr.

Freedman concluded that the patient’s heart was sufficiently stable to reschedule the bypass surgery. Three days later, the window of opportunity to perform the surgery closed as the patient’s kidneys failed. After developing coronary spasms and other organ failures, he died. Post Incident History Dr. Finley chose not to discuss with Dr. Granger his concern about Dr. Granger’s criticism of the nurses in front of the patient. Instead, he decided to consult with Dr. David Carlton, Jr., who at that time was the President of the Medical Staff and Chairperson of the Medical Executive Committee.

He did so in a person-to-person meeting shortly before noon on December 19. Neither Dr. Finley nor Dr. Carlton testified at length concerning the content of their December 19 conversation, and we are left only with speculation concerning the overall content. It was sufficiently alarming, however, to cause Dr. Carlton to suggest to Dr. Finley that he bring the subject to the attention of the Medical Executive Committee, which was to have its regular monthly meeting that same afternoon. Without explaining why he was prompted to do so, on the morning of December 19, and before he met with Dr. Carlton, Dr.

Finley interviewed Ms. Trissler and Ms. Lacombe to ascertain if anything might have occurred out of his sight or hearing the day before. His notes of these interviews reflect that these two nurses informed him that Dr. Granger “was a raging bull, that he used profanity, 114and that he was rough with the patient.” Although Dr. Finley also spoke with Ms. Griffin that morning, he did not take notes of his interview with her. Dr. Finley did not give his notes to the Medical Executive Committee, but he did use his notes while addressing the committee.

Article XI,

Section 5(l)(

a) provides that the Medical Executive Committee is comprised of eight voting members, most of whom also serve as officers of the medical staff, and four ex officio non-voting members, all being a part of the administrative staff of the hospital. According to

Article XI,

Section 5(l)(b)(v), one of its many duties “shall be ... to pursue corrective action to necessary conclusions in accordance with

Article VII.” As previously stated,

Article VII addresses the grounds for, and procedure to be applied in, investigating medical staff physicians. However, it also makes it clear that the Medical Executive Committee is an investigatory committee only and that its power is limited to a recommendation that others up the chain of command take one or a combination of any of the eleven actions set forth in

Article VII,

Section 8(a). Under the structure of

Article VII, the investigative process begins when the Medical Executive Committee receives a written request for an investigation from any one of a number of hospital officials stating that he or she has received information that might cause one to call into question the actions of a medical staff appointee. The very explicit language setting forth the particulars of how the written request should originate is set forth in

Section 1 of

Article VII as follows: GROUNDS FOR ACTION Whenever, on the basis of information, written, oral or observed, and belief, the President of the Medical Staff, the Chief Medical Executive, or the Chief of a clinical Section, and the Chairperson of the Board or the Chief Executive Officer or designee in conjunction with one of these physicians has cause to question: | iS(

a) the clinical competence of any Medical Staff appointee; (

b) the cure or treatment of a patient or management of a case by any Medical Staff appointee; (

c) the known or suspected violation by any Medical Staff appointee of applicable ethical standards or the Bylaws, policies, rules or regulations of the Hospital or its Board or Medical Staff, including, but not limited to the Hospital’s quality assessment and risk management programs; or (

d) behavior or conduct on the part of any Medical Staff appointee that is considered lower than the standards of the Medical Staff or Hospital or disruptive of the orderly operation of the Hospital or its Medical Staff, including the inability of the appointee to work harmoniously with others; a written request for an investigation of the matter shall be addressed to the Medical Executive Committee, making specific reference to the activity or conduct which gave rise to the request The Medical Executive Committee shall keep the Chief Executive Officer or designee fully informed of all action taken in connection therewith. (Emphasis added.) The obvious flaw in Dr.

Finley’s acceptance of Dr. Carlton’s invitation to personally appear before the Medical Executive Committee rests in his failure to reduce his request for an investigation to writing. Without compliance with

Section 1(

d) of

Article VII, there is no written record “of the activity or conduct which gave rise to the request” for an investigation. The need for compliance with the written request requirement is made clear by what occurred when the eleven members of the Medical Executive Committee met on the afternoon of December 19. Dr. Finley’s oral presentation was not recorded, but his trial testimony establishes that he related much more information than his solitary complaint that Dr. Granger spoke ill of the nursing staff in the presence of his patient.

He suggested to the Medical Executive Committee that Dr. |1ñGranger had improperly evacuated the hematoma in the patient’s room, as opposed to the sterile environment of the operating room; yelled profanities at the nurses; behaved in an extremely angry and agitated manner; and left a profusely-bleeding patient without any orders. He also reported to the committee members his understanding of the situation involving Dr. Granger’s disagreement with the two anesthesiologists concerning whether to proceed with the bypass surgery.

In fact, the one thing he appears not to have said to the Medical Executive Committee was his complaint concerning Dr. Granger making negative comments about the nurses in front of the patient. All of that which he related to the Medical Executive Committee was hearsay obtained from two of the three individuals he had interviewed that morning. There exists no evidence to suggest that he initially related anything concerning his discussion "with Ms. Griffith that morning, and either he did not talk to Dr. Freedman and Dr.

Lindsay before making his accusations or he failed to mention their opinions in his presentation. Additionally, although the patient’s medical chart was readily available, Dr. Finley apparently did not examine the entries therein and, at trial, offered no explanation concerning why he did not make it available to the Medical Executive Committee. The minutes of the December 19, 2002 meeting read, in pertinent part, as follows: Conclusions: A recent patient care event was discussed.

A post-surgical patient developed critical complications and there was question regarding the timely and appropriate management of this complication. Committee members discussed the issues of breach of patient care standards/abandonment of the patient, whether to treat this as a Sentinel Event, or suspend the physician pursuant to the referenced Bylaws

Article 7.2 — Investigative Procedure, 7.4 — Suspension of Privileges, and 7.5 Grounds for

Summary Suspension. The members voted in favor of

summary suspension of the physician. The physician’s patients will be reassigned upon notification of suspension. |17A sub-committee of MEC was recommended to investigate the matter during the suspension, composed of Drs. Bennett, McCoy and Carlton, Jr. Recommendations/Action/Follow Up: After discussion, and upon a motion duly made and seconded, the MEC committee voted in favor of

summary suspension. The investigation will follow the procedure noted in

Article 7 of the Medical Staff Bylaws. In this second phase of the investigative process, the Medical Executive Committee also chose not to follow the letter of its Bylaws. As set forth in

Article VII,

Section 5(a), the only ground for

summary suspension is “whenever failure to take such action may result in an imminent danger to the health and/or safety of any individual.” Thus,

summary suspension cannot be used to punish a physician for a personality or professional issue not directly related to the situation covered by

Article VII,

Section 5(a). Furthermore, in order to impose immediate

summary suspension, the Medical Executive Committee had to have found that such danger existed. That would have been an appropriate action under

Article VII,

Section 2(a) “[i]f the request for an investigation contains sufficient information to warrant a recommendation.” In other words, having made that finding, the investigation of this incident should have ended. It is only when the investigative request does not contain sufficient information that the Medical Executive Committee “shall immediately investigate the matter, appoint a subcommittee to do so, or appoint an ad-hoc investigating committee consisting of up to three persons.”

Article VII,

Section 2(b). In Dr. Granger’s case, the Medical Executive Committee made a recommendation of punishment while, at the same time, establishing an ad hoc committee to determine whether the punishment it imposed was appropriate. This misstep could have been avoided had Dr. Finley chosen to use the authority available to him and not go immediately to the Medical Executive |18Committee. Although an investigation of questions raised concerning medical staff appointees falls clearly within the duties of the Medical Executive Committee under the structure of

Article VII, Dr. Finley, as the Chief Medical Executive of the hospital, also had the authority to summarily suspend Dr. Granger.

Article VII,

Section 5(

a) states that various people, including the Chief Medical Executive, “shall each have the authority to summarily suspend all or any portion of the clinical privileges of a Medical Staff appointee or other individual whenever failure to take such action may result in an imminent danger to the health and/or safety of any individual. Such suspension shall not imply any final finding of responsibility for the situation that caused the suspension.” For reasons not set forth in the evidentiary record, Dr. Finley chose not to use this authority. Had Dr. Finley summarily suspended Dr. Granger,

Article VII,

Section 6(

a) requires that he report that action immediately to the Medical Executive Committee, which would then investigate the matter threatening the health and/or safety of a particular individual, then take any further action needed under

Article VII, Sections 2 and 3. In other words, in that situation, the Medical Executive Committee would represent a procedural safeguard by investigating whether Dr. Finley’s act was supported by the facts. Thus, the Medical Executive Committee, based on a procedurally flawed oral investigation request and an incomplete investigative report from Dr. Finley, and without allowing Dr. Granger the courtesy of a personal interview, voted to recommend that Dr. Carlton summarily suspend Dr. Granger’s medical privileges at Cabrini Hospital.

At the same time, the Medical Executive Committee voted to form an ad hoc subcommittee to investigate whether the evidence available to it supported its own decision. | uiThe notification requirements of recommendations by the Medical Executive Committee are different depending on whether the physician at issue is entitled to a hearing on its recommendation. If its action does not entitle the physician to a hearing,

Article VII,

Section 3(

c) requires that the Medical Executive Committee forward the report of its recommendation to the Board of Directors through the Chief Executive Officer. However, it is silent concerning who notifies the physician of the adverse recommendation. Should the action entitle the physician to a hearing, the Chief Executive Officer is still the vehicle through which the Medical Executive Committee reports. In that case, however,

Article VII,

Section 3(

d) provides that the Chief Executive Officer does not immediately notify the Board of Directors. Instead, he or she notifies the affected physician in writing of the action, and delays notification to the Board of Directors pending either the outcome of a hearing or a determination that the physician has waived his hearing and/or appeal rights. Nothing in

Article VII requires that the Medical Executive Committee notify Dr. Granger that he was being investigated for anything. However,

Article VII,

Section 3(

b) allows the Medical Executive Committee to notify Dr. Granger that it was considering recommending one or more of the disciplinary actions available to it under

Article VII,

Section 3(a), and invite him to participate in a pre-recommendation hearing. If such a hearing were to have occurred, Dr. Granger would have no appeal rights pursuant to that Section. However,

Section A.l(a)(8) of Appendix A to the Bylaws specifically granted Dr. Granger the right to a hearing once the Medical Executive Committee recommended

summary suspension. That

Section states that “[a]n ... individual holding a Medical Staff appointment shall be entitled to request a hearing whenever an unfavorable | ¡^recommendation has been made by the Medical Executive Committee or the Board regarding ... suspension of total clinical privileges.” (Emphasis added.) When the Medical Executive Committee makes a disciplinary recommendation other than

summary suspension,

Article VII is silent concerning any notification requirement to the physician at issue. However, a recommendation to impose

summary suspension imposes a specific notification requirement, not on the Medical Executive Committee, but on the person to whom the recommendation is directed. In this ease, the Medical Executive Committee directed Dr. Carlton, then President of the Medical Staff and its Chairperson, to effect or reject the recommendation. Once he decided to accept the recommendation, Dr. Carlton was obligated, pursuant to

Article VII,

Section 5(a), to notify a number of the administrative personnel in writing. One of those entitled to written notice, the Chief Executive Officer or his designee, was then obligated to notify Dr. Granger by letter of his

summary suspension. See

Article VII,

Section 5(c). Again, the procedure set forth in the Bylaws was not followed. Instead of Mr. Wright, in his capacity as the Chief Executive Officer of Cabrini Hospital, notifying Dr. Granger of his suspension, Dr. Carlton performed that task. By letter dated the same day as the Medical Executive Committee meeting, Dr. Carlton notified Dr. Granger that his clinical privileges at Cabrini Hospital were summarily suspended. The letter reads in pertinent part as follows: At a meeting held December 19, 2002, the Medical Executive Committee was asked to investigate the management of one of your hospitalized patients.

After reviewing the events surrounding the management of this case, the Medical Executive Committee has recommended that I summarily suspend your clinical privileges. 121 Therefore, your clinical privileges at CHRISTUS St. Frances Cabrini Hospital are summarily suspended. Grounds for such suspension are outlined in

Article 7.5 of the Medical Staff Bylaws. I will immediately assign another Medical Staff appointee to care for your hospitalized patients, as directed in

Article 7.4(a). Pursuant to the Bylaws, such suspension shall become effective immediately upon imposition. The Medical Executive Committee will investigate the matter resulting in suspension and follow the protocol for an investigative procedure. The

summary suspension shall remain in force until the matter is resolved. Attached to this letter are copies of the above referenced Articles of the Medical Staff Bylaws. In addition to being authored by the wrong person, the letter failed to contain the notification to Dr. Granger required by

Section B.l(a)(2) of Appendix A that he had “the right to request a hearing on the recommendation within 80 days of receipt” of the notice, nor did it contain a copy of Appendix A as required by

Section B.l(a)(3). That same evening, as he completed another surgical procedure at Rapides Regional, and even before he received Dr. Carlton’s letter, Dr. Granger received a note asking that he telephone Dr. Finley. In the ensuing telephone conversation, Dr. Finley informed Dr. Granger of the

summary suspension and told him that he was not to see his patient again or contact the patient’s family. Concerning the issue giving rise to the suspension, Dr. Finley informed Dr. Granger that the Medical Executive Committee was of the opinion that Dr. Granger had abandoned his patient. Dr. Finley made no mention of the purported underlying personality issues he had brought to the attention of the Medical Executive Committee. Dr. Granger testified that the

summary suspension came as a complete surprise to him as he had thought if anyone would be investigated for lack of care to the patient, it would be the nurses. Thus, at this point, the only information provided Dr. Granger was that the sole reason the Medical Executive Committee |22recommended

summary suspension was the medical complication arising from the patient’s physical condition and the “question regarding the timely and appropriate management of this complication.” Had the procedural aspects of the Bylaws been followed, and had the

summary suspension investigation been limited to the possible “imminent danger” to Dr. Granger’s patient as specified in

Article VII,

Section 5(a), perhaps this litigation would not have evolved to the status it now occupies. Dr. Carlton testified that the members of the Medical Executive Committee discussed the possibility of tying the clinical care issue to behavior issues at the December 19 meeting, but correctly noted that the only evidence supporting a behavioral issue regarding Dr. Granger was of a hearsay nature. Additionally, although the minutes are silent on this point, Dr. Carlton testified that the Medical Executive Committee also delegated the administration of the investigation to Dr. Finley.

Whether intentional or otherwise, this delegation resulted in two parallel investigations occurring at the same time, because, instead of acting as the administrator of the ad hoc subcommittee’s investigation, Dr. Finley renewed his investigation of the behavioral issues he had divulged to the Medical Executive Committee. Thus, the ad hoc subcommittee focused on the clinical care provided to the patient and Dr. Finley focused on the behavioral issues. On January 1, 2003, Dr. Roben Bennett, an Alexandria, Louisiana internal-medicine physician who specializes in kidney diseases, replaced Dr.

Carlton as the president of the medical staff and chairman of the Medical Executive Committee. The Medical Executive Committee received reports concerning the parallel investigations on January 9, 2009. Dr. Finley’s report began to take shape within two to three days after the Medical Executive Committee meeting on December 19, | ¾¾2002, when he continued his personal investigation by interviewing some of the nurses a second time and by interviewing others for the first time. In some of the interviews he took notes and in others he did not. According to Dr. Finley, Ms.

McKithen told him that she changed the patient’s dressing several times on her night shift, and that she had attempted to inform Dr. Granger of the bleeding problem, but that he hung up on her when she telephoned him. Additionally, he testified that other nurses informed him that they had issues with attempting to communicate with Dr. Granger because he would berate and intimidate them and make them feel inferior. Dr. Finley also interviewed Ms. Griffin for a second time, but for some unexplained reason, still did not make any notes of this conversation. At trial, he testified that Ms.

Griffin informed him of the procedure in treating the hematoma and told him that after assisting Dr. Gran-ger in opening the neck wound, cleaning out the blood clots with his finders, and placing some gauze bandages on the site, she asked Dr. Granger “[D]ude, what are you going to do about this? It’s bleeding.” According to Dr. Finley, Ms. Griffin told him that Dr. Granger responded by saying, “I have a patient on the table at Rapides. Send him to ICU.” and left the hospital. Dr. Finley either did not question Ms. Griffin concerning her opinion of Dr.

Granger’s professional demeanor at the time of the incident, or omitted that part of the interview in his testimony. Additionally, none of the nurses he interviewed in his follow-up investigation testified before the Medical Executive Committee at its January 9, 2003 meeting. The Medical Executive Committee was provided only with Dr. Finley’s notes and his personal

interpretation of his notes. | g4The ad hoc subcommittee took no steps in its investigative obligation until the day before the January 9, 2003 Medical Executive Committee meeting, when it interviewed Dr. Lindsay, Dr. Freedman, Dr. Patton, Dr. Finley, and Dr. Granger. Dr. Lindsay testified that he informed the subcommittee members that he believed Dr. Granger’s conduct with the patient was appropriate. Dr. Freedman testified that he would not have left the patient had his patient been in distress or until he found the source of the bleeding. However, he also testified that at the time he saw Dr.

Granger’s patient, the respiratory distress was not severe. As previously stated, with regard to cancelling the surgery, Dr. Patton suggested that he felt it appropriate to cancel “the elective bypass surgery” until the patient stabilized.

Article VII,

Section 2(

d) requires that the ad hoc subcommittee provide Dr. Granger an opportunity to meet with it before it makes the report to the Medical Executive Committee. It further provides that “[a]t this meeting ... the individual shall be informed of the general nature of the evidence supporting the question being investigated and shall be invited to discuss, explain or refute it.” Dr.

Granger testified that when he met with the ad hoc subcommittee, the discussion involved only the medical aspects of the case, and the questions directed to him primarily addressed why he left Cabrini Hospital after repairing the incision, and the status of the patient he left at Rapides Regional — in other words, only the medical care issues relating to his patient. Dr. Granger testified that when he met with the three doctors on January 8, he had no knowledge and was not informed that there was an ongoing parallel investigation of his behavior.

Nothing in the Bylaws requires the investigating body to file a written report with the Medical Executive Committee, although

Article VII,

Section 2(

d) requires that “[a]

summary of such interview shall be made by the investigating committee l^and included with its report to the Medical Executive Committee.” No written report was provided in this case. Instead, the minutes of the January 9, 2003 Medical Executive Committee meeting contain the notation that “[i]t was asked if consideration of the overall behavior/attitude of the physician entered into the focused review by the subcommittee since from the documentation it appears that Dr.

Granger began the initial patient encounter on a ‘negative note.’ ” The identity of the person to whom this question was addressed is not provided in the minutes, and the response recorded in the minutes does not contain an answer to the question. Instead, the minutes simply report that “[t]here was some discussion related to reports that nursing staff is reluctant to call Dr. Gran-ger due to his tendency to be abrupt. The potential for an event such as this happening again with relation to Dr.

Granger was discussed.” It is unclear from the minutes whether the “reports” mentioned in the minute entry came from an unreported portion of the ad hoc subcommittee’s investigation or from other sources, including Dr. Finley’s report. With the focus of the investigation now clearly tilted more toward behavioral issues than medical care issues, the Medical Executive Committee made a new recommendation. It recommended that, with regard to Dr.

Granger’s medical staff membership and clinical privileges, he be placed on a six-month probationary period “which will be defined to encompass both behavior and quality of patient care issues as imposed by the Medical Staff Bylaws and Rules & Regulations.” The Medical Executive Committee further recommended that, as a part of the probation requirements, “any further events during the six month period would be considered grounds for

summary suspension of privileges and could result in permanent suspension from the Medical Staff’ and that his professional 12r,activities at the hospital would be subject to “100% chart review ... conducted on all of [his] cases for the duration of the stipulated probationary period.” The minutes of that day’s meeting also include a brief

section on “Follow Up,” which states: Clarification with regard to the approach to be taken with regard to defining the terms of the recommended probationary period will be sought from hospital legal counsel. Chart review will be the responsibility of the Chief Medical Executive and a recommendation for a probationary status for Dr. T. Mack Granger’s Medical Staff membership and clinical privileges will be forwarded to the local Governing Board at such time the terms of the probation have be [sic] clearly defined.

This minute entry suggests that the Medical Executive Committee treated its latest recommendation as having already been accepted. Additionally, this reference to “[c]hart review” marked the first time anyone even suggested that it might be helpful in the investigation to examine the patient’s chart. However, the Medical Executive Committee left this task to Dr. Finley, the individual who had access to this source of information from the beginning. Additionally, nothing in the record suggests that the chart of the patient at issue in this litigation ever became a part of the subsequent investigative events.

While nothing in the minutes suggests to what entity the Medical Executive Committee intended to direct its recommendations,

Article 11,

Section 5(l)(b)(iv) states that one of its duties is to make recommendations to the Board of Directors “concerning matters relating to ... Medical Staff’ as well as other enumerated duties, including pursuing “corrective action to necessary conclusions in accordance with

Article VIL”

Article II,

Section 5(l)(b)(v). However, the Medical Executive Committee did not initially notify the Board of Directors of its actions with regard to Dr. Granger. Instead, immediately after the January 9, 2003 meeting, Dr. Finley sent Dr. Granger a letter stating that the Medical Executive | ^Committee had “met and made a recommendation for further action to the Governing Board.” However, the letter did not state the particulars of the recommendation. Instead, the letter stated in pertinent part: At this time: 1. The

Summary Suspension was appropriate; 2. The

summary suspension has expired and your clinical privileges are restored effective January 10, 2003. 3. Under

Article 7.3(

c) and Appendix A of the Medical Staff ByLaws, this is not an appealable ruling; 4. This action is effective immediately; 5. This action is not reportable to the National Practitioner’s Data Bank; 6. Following Governing Board action, you will receive further communication regarding their decision about the recommendation made by the Medical Executive Committee. This action is taken because of the committee’s conclusion that you committed a serious error in judgment in your management of your patient on December 18, 2002.

Although your initial response to the bleeding complication was appropriate in that you examined the patient, opened the wound, evacuated a large hematoma and attempted to control bleeding by packing the wound, leaving this patient, whom you knew to be anti-coagulated and who had bled approximately 500 cc prior to your care without any significant period of observation by you, put the patient at significant risk for additional bleeding.

In addition, simply ordering him transferred to the ICU without orders to the nursing staff and without arranging for any back up coverage when you knew that you would be in surgery at another hospital and, thus, unavailable for several hours, is below the standards of practice that CHRISTUS St. Frances Cabrini Hospital expects of its medical staff members. This January 9, 2003 letter concluded with the statement “[t]his letter will become a part of your file and will be reviewed in connection with any future events.” Not only did this letter erroneously inform Dr.

Granger that he was not entitled to a hearing on the

summary suspension recommendation, but it made no mention of the most recent recommendation concerning probation. Additionally, l^while the content of this letter may have been discussed in the Medical Executive Committee meeting, nothing in the minutes suggests the action was based on such a fact-specific scenario. Again, despite the obvious involvement of personality issues in the process, Dr. Granger was informed of only the professional care complaint. Despite being the author of the January 9, 2003 letter, Dr. Finley was unable at trial to explain why it did not mention Dr.

Granger’s behavioral and attitude problems, and the evidentiary record establishes through later testimony that the comment “Summary Suspension was appropriate” was not authorized by the Medical Executive Committee. The action by Dr. Finley, acting for the Medical Executive Committee and Cabrini Hospital, of making this letter of reprimand a part of Dr. Granger’s files at Cabrini Hospital entered a permanent censure in those files. As was the case with the minute notations of the January 9, 2003 meeting, this letter appears to attempt the imposition of a disciplinary action rather than a recommendation. Dr.

Granger had requested the presence of an attorney at the January 8 interview, and that request was denied. By a letter dated January 17, 2003, Dr. Gran-ger’s attorney requested that Cabrini Hospital give the doctor a hearing on the propriety of the

summary suspension, or, alternatively, remove from the January 9, 2003 letter of reprimand the statement that the

summary suspension was appropriate. Cabrini Hospital responded through its attorney that Dr. Granger would not be afforded a hearing on the issue. Specifically, the letter denying Dr. Granger a hearing based that denial on the fact that the matter was still at the recommendation stage from the Medical Executive Committee and had not yet been acted on by the Board of Directors. It also suggested that Dr. Finley’s January 9, 2003 letter was nothing more than a letter of reprimand, which is not _[a,grounds for a hearing.

Either Cabrini Hospital’s attorney was unaware of the complete January 9, 2003 recommendation of the Medical Executive Committee, or chose not to inform Dr. Granger of its content. Had the Medical Executive Committee recognized that

Section A(l)(

a) of the Appendix granted Dr. Granger a hearing in the case of either the first or second recommendation, its additional duty was to forward the recommendation to the Chief Executive Officer, in this case, Mr. Wright. As we previously stated,

Section B.l(

a) of Appendix A requires that, upon receipt of that recommendation, the Chief Executive Officer is required to promptly notify the affected individual in writing, by “certified mail, return receipt requested, or hand delivery.” The notification must contain “(1) a statement of the recommendation made and the general reasons for it; (2) notice that the individual has the right to request a hearing on the recommendation within 30 days of receipt of this notice; and (3) a copy of this Appendix A.” Once the notice is forwarded to the physician at issue, “[t]he Chief Executive Officer or designee shall then hold the recommendation until after the individual has exercised or has waived the procedural rights as provided in the Hearing and Appeal Procedure in Appendix A.”

Article VII,

Section B(d). There exists no evidence in the eviden-tiary record to suggest that Mr. Wright ever forwarded the appropriate notice to Dr. Granger. Instead, on January 29, 2003, the dispute was basically transferred from the Medical Executive Committee to the Cabrini Hospital Board of Directors. On that day, the Board of Directors met and was apprised of the Medical Executive Committee’s January 9, 2003 recommendations. The minutes of that meeting reflect that Dr.

Carlton appeared and summarized “the specifics of the ease, the issues and the investigative process ^conducted by the Executive Committee of the Medical Staff” and that Dr. Bennett “filled in any unaddressed issues.” Dr. Finley was also present at the meeting and testified at trial that the Board of Directors focused on the same issue focused on by the Medical Executive Committee: Dr. Granger’s behavioral misconduct (which Dr. Finley’s January 9, 2003 letter does not mention).

The minutes from this January 29, 2003 meeting state that the Board of Directors did not accept the Medical Executive Committee’s recommendation.

Instead, it asked the Medical Executive Committee to “investigate further into this matter by interviewing all nurses involved, consider the unprofessional conduct and behavior as a key issue, and make a final recommendation back to the Executive Committee of the CHRISTUS Central Louisiana Board for final action.” (Emphasis added.) With the matter being returned to the Medical Executive Committee, and still struggling with his inability to obtain a forum wherein he could determine the specific charges against him and to adequately respond, on February 6, 2003, Dr.

Granger filed this suit against Cabrini Hospital seeking injunctive relief. Specifically, Dr. Granger asked for “a formal declaration by the [trial] Court as to whether he is entitled under [Cabrini Hospital] Bylaws to a hearing (and in due course, to an appeal)” from Dr. Finley’s January 9, 2003 letter stating that the

summary suspension was proper. The Medical Executive Committee next considered the continuing investigative process in its February 27, 2003 meeting. The minutes of that meeting note that Mr.

Wright spoke to the Medical Executive Committee at this meeting, informing them of the Board of Director’s concerns and informing the members present that the Board of Directors had also recommended that a formal |sirequest be sent to Rapides Regional for information on “reports of disruptive behavior and any associated disciplinary action for this physician.” This very specific directive from the Board of Directors did not make its way into the minutes of the January 29, 2003 meeting. Dr.

Finley testified at trial that he did not know if a request was ever submitted to Rapides Regional, and he was not personally aware of the facts surrounding the alleged suspension. Dr. Finley testified that when the Board of Directors sent the matter back to the Medical Executive Committee, Betty Bold, Cabrini Hospital’s chief operating officer, conducted the investigation on the behavioral issues pursuant to the Board of Directors’ instructions. According to Dr. Finley, he knew of no written records of Ms. Bold’s investigation, and the Medical Executive Committee was provided only with summaries of Ms.

Bold’s interviews. It appears that Ms. Bold interviewed only the nurses, now for a third time. Additionally, it is unclear whether Ms. Bold’s investigation occurred before or after the Medical Executive Committee’s February 27, 2003 meeting. The minutes of the February 27 meeting suggest that even before receiving the results of Ms. Bold’s investigation, the Medical Executive Committee added to its prior recommendation by recommending that Dr. Granger “be requested to self-refer to the Physician’s Health Foundation of Louisiana within 10 days for evaluation. It was furthér recommended that Dr.

Granger be placed on probation for a period of six months.” Such a recommendation would fall within those actions allowing Dr. Gran-ger a hearing pursuant to

Section 1(a)(9) of Appendix A, being an “imposition of [a] mandatory concurring consultation requirement.” There is no record of notice to Dr. Gran-ger of this latest addition to the Medical Executive .Committee’s recommendation, but with this recommendation, 132the matter returned to the Board of Directors, which, in turn, assigned the evaluation of the Medical Executive Committee recommendation to its Executive Committee. At its March 10, 2003 meeting, the Board Executive Committee voted to accept the Medical Executive Committee’s recommendation with one substantive change: that Dr.

Granger would have thirty days, rather than ten days, to effect the self-referral to the Physician’s Health Foundation. The minutes of the meeting assert that the “[discussions centered around the nurses’ interviews that addressed Dr. Granger’s behavioral problems and on the quality of care given to his patient.” The resolution itself reads as follows: RESOLVED, as recommended by the Medical Executive Committee, that Dr. T. Mack Granger be requested to self-refer to the Physician’s Health Foundation of Louisiana within 30 days for evaluation, or risk consideration of further action; and, that Dr.

Granger be placed on probation for a period of six months, is hereby ratified and approved by the members of the CHRISTUS Health Central Louisiana Executive Committee of the Board. No notice was provided to Dr. Granger until almost a month later, on April 7, 2003, when Ms. Stich and Dr. Bennett signed a letter addressed to Dr.

Granger wherein they informed him of the Board Executive Committee’s action at the March 10, 2003 meeting and informed him that “both the Board and the [Medical Executive Committee] felt that your unprofessional behavior exhibited in the interactions with the staff was a contributing factor adversely affecting the care provided to this patient.” However, the authors of the letter took the further step of l-ainforming Dr. Granger that the Board Executive Committee did not approve the January 9, 2003 letter of reprimand. This April 7 letter also stated that a resolution was approved.

However, the resolution set out in the April 7 letter differs from the one in the Board Executive Committee’s minutes. The letter states that the Board Executive Committee approved the following resolution: RESOLVED, as recommended by the Medical Executive Committee, that Dr. T. Mack Granger be requested to self-refer to the Physician’s Health Foundation of Louisiana within 30 days for evaluation and treatment for anger management. Additionally, Dr. Granger will be expected to comply fully with any recommendations proposed by the Program, or risk consideration of further action; and, that Dr.

Granger be placed on probation for a period of six months. (Emphasis added.) Thus, the authors of the April 7, 2003 letter added the requirements that Dr. Granger be treated for anger management and that he fully comply with any recommendations that the Physician’s Health Foundation for Louisiana would make. The Board of Directors did not address the latest investigation findings or the content of the April 7, 2003 letter until some twenty-three days later, in its April 30, 2003 meeting.

After considering the report of the Medical Executive Committee, the Board Executive Committee’s minutes, and the content of the April 7, 2003 letter, the Board of Directors adopted the Medical Executive Committee’s recommendation and the recommendation of the Board Executive Committee, “as stated in the March 10, 2003 minutes of the Executive Committee of the CHRISTUS Health Louisiana Board of Directors.” It appears from these minutes that the Board of Directors adopted the resolution approved by the Board ^Executive Committee in its minutes, not the one set out in the April 7, 2003 letter to Dr. Granger.

However, there is no indication that Dr. Granger was ever informed that the Board of Directors adopted a resolution different than the one set out in the April 7, 2003 letter. By the time the Medical Executive Committee next met on May 29, 2003, Dr. Finley had left Cabrini Hospital, and Dr. Granger had not referred himself to the Physicians’ Health Foundation. It is not clear from the record why the Medical Executive Committee discussed the matter again, but the minutes from that meeting state that Dr. Bennett reported he had spoken to Dr.

Granger “and advised him to resign or do the referral, but to no avail.” Additionally, there is nothing to suggest how Dr. Bennett acquired the authority to give Dr. Granger the ultimatum. According to the minutes of the May 29 meeting, and despite the fact that its authority consisted of making recommendations, the Medical Executive Committee voted to send “a notice requiring him to submit a self-referral to [Physicians’ Health Foundation of Louisiana] within seven (7) days.

If after seven days the self-referral had not been done, then there would be an automatic termination of his privileges.” (Emphasis added.) On June 6, 2003, the Board Executive Committee adopted a similar resolution, stating that if Dr. Granger did not self-refer within seven days “his medical staff membership and privileges shall, be revoked.” (Emphasis added.) The June 6, 2003 minutes note that Mr. Wright reported that Cabrini Hospital’s attorney had stated that “it was acceptable for the Board to concur with the decision of the Medical Executive Committee prior to the actual due-process hearing. Dr.

Granger would not technically be in a position to request a hearing until he has received the formal letter, which restricts his privileges.” | ^Despite the clear language of both of these resolutions, Mr. Wright never forwarded Dr. Granger the notice required by

Section B(l)(

a) of Appendix A. Instead, Ms. Stich and Dr. Bennett sent Dr. Gran-ger another letter, dated June 16, 2003, which contains language different from the resolutions, of both committees and did not warn Dr. Granger that failure to self-refer would result in an automatic termination of his privileges. The letter stated, instead, that “Should enrollment in this program not occur, the MEC will recommend revocation of your medical staff membership and privileges.

Should such an action occur you will be notified in writing of the recommendation and your rights to invoke the Hearing and Appeal Procedures under Appendix A of the bylaws.” (Emphasis added.) At trial, Ms. Stich testified that she did not know why the June 16 letter differed from the resolution passed at the June 6 meeting. On June 24, 2003, Dr.

Granger amended his petition to assert that Cabrini Hospital had committed a bad faith breach of its Bylaws, had constructively revoked his clinical privileges, had defamed him, and had engaged in unfair and deceptive trade practices under the Louisiana Unfair Trade Practices Act (LUTPA), La.R.S. 51:1401, et seq. In addition to his prior request for injunctive relief, for the first time in the litigation, Dr. Granger sought a general damage award, damages for lost earnings, and an award of reasonable attorney fees and costs pursuant to La.R.S. 51:1409.

At its July 30, 2003 Board of Directors meeting, the issue of Dr. Granger’s activities continued to be debated. The minutes of that meeting affirmatively assert that Dr. Granger had received the letter dated June 16, 2003, but that Dr. Granger had not self-referred. The minutes also noted that Dr. Granger’s hospital privileges would automatically terminate that day— July 30, 2003 — absent a new ^application from Dr. Granger, and that Dr. Granger had not applied for renewal of his privileges.

The minutes also reference a scheduled future court hearing and, in that regard, note that: Our attorney has recommended that no further action should be taken by the Board or the Medical Executive Committee until the preliminary hearing on August 12th. As Dr. Granger has not re-applied, we have asked the hospital attorneys if we can stop action and what information, if any, would need to be presented to the National Data Bank. [Ms. Stitch] asked the Board to ratify the recommendations of the Medical Executive Committee and the CHRISTUS Health Central Louisiana Executive Committee.

The Board of Directors then voted to adopt the Medical Executive Committee’s and the Board Executive Committee’s recommendations. In enacting this resolution, the Board of Directors made no mention of the discrepancy between the recommendation of the Board Executive Committee and the notice provided to Dr. Granger. On August 12, 2003, the parties entered into an agreement that the trial court approved and entered into the record of these proceedings on December 1, 2003. The agreement reads in pertinent part as follows: 1) CHRISTUS St.

Frances Cabrini Hospital will not distribute or disseminate the letters of April 7 and June 16, 2003, to any healthcare organization, entity, or insurer. 2) CHRISTUS St. Frances Cabrini Hospital will not take any further adverse action regarding Dr. Granger’s former privileges at CHRISTUS St. Frances Cabrini Hospital. Dr. Granger will not reapply for medical staff privileges during the pendency of this action. 3) If questioned by any licensing or credentialing entity concerning the

summary suspension of December 19, 2002 to January 10, 2003, CHRISTUS St. Frances Cabrini Hospital shall reply: “Dr. Granger was summarily suspended on December 19, 2002. An ad hoc committee investigated the incident. Dr. Granger was restored to full medical staff privileges on January 10, 2003.” 4) If questioned by any licensing or credentialing entity concerning Dr. Granger’s medical staff status, CHRIS-TUS St. Frances Cabrini Hospital will reply: “Members of the medical staff are [ ^appointed for two-year terms. Dr. Granger’s last appointment expired July 31, 2003. He did not apply for renewal of his former privileges in the

Section of Surgery.” The litigation moved through the trial court system in the ensuing years and, following a September 10, 2007 hearing, the trial court granted a partial

summary judgment, finding that the Health Care Quality Immunity Act (HCQIA), 42 U.S.C.A. 11112, et seq., provided Cabrini Hospital immunity from any damage claims arising from the

summary suspension of December 19, 2002. Although Cabrini Hospital had asked the trial court to dismiss Dr. Granger’s other claims against it on the basis of HCQIA immunity, the trial court denied those motions for

summary judgment. On October 28, 2008, in an unpublished opinion, a panel of this court rejected Dr. Granger's application for a supervisory writ on the

summary suspension-immunity issue, finding that the trial court ruling on the partial

summary judgment was not a final and appeal-able judgment. Granger v. Christus Health Cent. La., 08-1272 (La.App. 3 Cir. 10/29/08). On June 8, 2010, Dr. Granger amended his petition again and added claims of negligent misrepresentation, fraud, and tor-tious interference with a contract. In the pleadings setting forth the new causes of action, Dr. Granger asserted that he had only recently learned of the automatic suspension recommendations acted upon in the May 29, 2003 Medical Executive Committee meeting and the June 6, 2003 Board Executive Committee meeting.

The matter went to a jury trial beginning June 22, 2010. However, after both parties had rested, the trial court sua sponte dismissed Dr. Granger’s claims for defamation and fraud. In reaching its judgment in favor of Dr. Granger, the jury answered the applicable interrogatories and concluded that

(1) Cabrini Hospital took the peer preview action at issue in the litigation with malice and without a reasonable belief that the action was warranted by the known facts;

(2) Cabrini Hospital’s peer review action was not taken in the reasonable belief that the action was in the furtherance of quality health care;

(3) Cabrini Hospital failed to substantially comply with the hospital’s bylaws in the peer review proceeding;

(4) Cabrini Hospital’s conduct caused revocation of Dr. Granger’s privileges at Cabrini Hospital; (5) in its peer review activities, Cabrini Hospital engaged in unfair or deceptive trade practices against Dr. Gran-ger; (6) and that Dr. Granger was harmed by the actions of Cabrini Hospital. The jury went on to find that Cabrini Hospital made negligent misrepresentations concerning Dr. Granger in its peer review action and that the negligent misrepresentations also caused Dr. Granger harm. With regal'd to the issue of damages, the jury concluded that Dr.

Granger had suffered $2,900,000.00 in lost past income and $1,000,000.00 in general damages. The jury rejected Dr. Granger’s claim for loss of future income. ASSIGNMENTS OF ERROR Cabrini Hospital has five assignments of error, with various sub-issues included within them: 1. Whether the District Court committed prejudicial legal error when it denied, in part, Cabrini’s Motion for

Summary Judgment, and it otherwise refused to apply HCQIA and Louisiana state law immunity to bar all of the claims of Dr. Granger for monetary damages for the peer review investigation into his conduct and behavior in the treatment of a patient at Cabrini. a. Whether the District Court committed prejudicial legal error when it refused to apply HCQIA and state law immunity to the claims of Dr. Granger despite the fact that no adverse action was taken by Cabrini against Dr. Granger in the peer review process. b.

Whether the District Court committed prejudicial legal error when it refused to apply HCQIA and state law immunity to the claims of Dr. Granger despite the fact that |3i)Cabrini’s decisions made in the peer review to investigate his conduct and behavior were objectively reasonable at the time they were made to protect patient safety and the quality of medical care at the hospital. c. Whether it was clearly erroneous and prejudicial error for the jury to find that Cabrini did not act without malice and without a reasonable belief that the peer review of Dr.

Granger was in the furtherance of quality health care, in the absence of any such evidence in the record. d. Whether the District Court abused its discretion and committed prejudicial error when it denied Cabrini’s Motion in Limine to excluded [sic] the testimony of Dr. Huntoon at trial and subsequently permitted Dr. Huntoon to testify, over Cabrini’s objection, as an expert in the field of peer review and sham peer review. e. Whether the District Court abused its discretion and committed prejudicial legal error when it allowed damage claims and testimony concerning the

summary suspension to go to the jury. 2. Whether the District Court committed prejudicial legal error when it denied Cabrini’s Motion for

Summary Judgment and otherwise allowed Dr. Granger to present claims to the jury for a violation of the LUTPA despite the fact that he had no standing to assert those claims and whether it was clearly erroneous and prejudicial for the jury to find that Cabrini had engaged in unfair or deceptive trade practices and that such conduct had harmed Dr. Granger, in the absence of such evidence in the record. 3. Whether the District Court committed prejudicial legal error when it denied Cabrini’s Motion for

Summary Judgment to dismiss Dr. Granger’s breach of contact claim, or whether it otherwise abused its discretion, when it instructed the jury that a contract existed between Dr. Granger and Cabrini and whether it was clearly erroneous and prejudicial error for the jury to find that Cabrini had failed to substantially comply with the alleged contract and that such alleged failure caused the revocation of Dr. Granger’s privileges at Cabrini, in the absence of such evidence in the record. 4. Whether the District Court committed prejudicial legal error when it denied Cabrini’s Motion for

Summary Judgment to dismiss Dr. Granger’s negligent misrepresentation claim, or whether it otherwise abused its discretion, in instructing the jury on the issue of negligent misrepresentation and whether it was clearly erroneous and prejudicial error for the jury to find Cabrini liable for negligent misrepresentation, in the absence of such evidence in the record. 5. Whether it was clearly erroneous and prejudicial error for the jury to find that Dr.

Granger had proved that he had been personally damaged by any actions of Cabrini, or that he had been damaged at all, much less in the amount of $3.9 million, or that he was entitled to any recovery of general damages, in the absence of any such evidence in the record. a. Whether, because the jury failed to segregate damages between the

summary suspension and the remainder of Cabrini’s peer review activities (or amongst any of Dr. Gran-ger’s claims presented to the jury), the verdict must be set aside or, alternatively, remanded to the District Court for a new trial on damages. Dr. Granger answered the appeal, with two assignments of error: A. The trial court erroneously granted the Partial

Summary Judgment based on the Health Care Quality Immunity Act (“HCQIA”), 42 U.S.C. 11112, for Defendant’s actions in causing the wrongful

Summary Suspension of Plaintiffs hospital privileges, B. The trial court erroneously dismissed, ex proprio motu, the Plaintiffs claims for defamation and fraud at the close of the jury trial on the merits. STANDARD OF REVIEW The standard of review differs as we examine the various issues that the parties raise. This court reviews

summary judgments de novo. Guilbeaux v. Times of Acadiana, Inc., 96-360 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, writ denied, 97-1840 (La.10/17/97), 701 So.2d 1327. We also review statutory

interpretations de novo. Stewart v. Estate of Stewart, 07-333 (La.App. 3 Cir. 10/3/07), 966 So.2d 1241. Where the trial court’s decision is based on an error of law, our standard of review is de novo. Hooper v. Hooper, 06-825 (La.App. 3 Cir. 11/2/06), 941 So.2d 726, writ denied, 06-2823 (La.1/26/07), 948 So.2d 177. However, we review a jury’s factual findings for manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Thus, “where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon 141 review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.” Id. at 844 (citations omitted). OPINION

Summary Judgment Issues Raised by Both Parties Both Cabrini Hospital and Dr. Granger raise questions concerning the trial court’s grant of a partial

summary judgment in favor of Cabrini Hospital, finding it immune from damage claims arising from the

summary suspension of December 19, 2002, based on the provisions of HCQIA but not dismissing the remainder of Dr. Granger’s causes of action. Cabrini Hospital asserts on appeal that the trial court erred in not granting it full immunity and dismissing the litigation in its entirety based on HCQIA. Dr. Granger asserts that the trial court erred in granting the partial

summary judgment. The motion for

summary judgment is a procedural device whose purpose is to avoid a full-scale trial when there is no genuine issue of material fact. Melder v. State Farm Mut. Auto. Ins. Co., 11-98 (La.App. 3 Cir. 6/1/11), 66 So.3d 603.

Summary judgment procedure is “designed to secure the just, speedy, and inexpensive determination of every action,” except in certain domestic actions; the “procedure is favored and shall be construed to accomplish those ends.” La.Code Civ.P. art. 966(A)(2); Racine v. Moon’s Towing, 01-2837 (La.5/14/02), 817 So.2d 21. The burden of proof on the motion for

summary judgment remains with the movant. La.Code Civ.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for

summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or | ^defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La.Code Civ.P. art. 966(C)(2). The motion for

summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). As has already been established by the review of the evidentiary record and as will be further established by the review of the remaining assignments of error, the issue concerning the application of HCQIA addressed by the trial court in considering the motion for

summary judgment is fact-intensive, and there were obvious genuine issues of material fact present in the litigation at that time. We find no error in the trial court’s refusal to grant Cabrini Hospital’s motion for

summary judgment on Dr. Granger’s claims arising from the post-summary suspension actions. For the same reasons, we find that the trial court erred in granting the partial

summary judgment dismissing Dr. Granger’s claim for damages based on the actions associated with the initial

summary suspension. This reversal requires no remand because the record is complete on this issue. HCQIA and Louisiana State Law Immunity Issues The United States Congress enacted HCQIA in 1986. Its purpose is to provide protections for peer review of physicians’ actions, in an effort to reduce medical malpractice, to improve the quality of medical care, and to prevent incompetent physicians’ movements from state to state without disclosure of previous incompetent performance. 42 U.S.C.A.

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