                          STATE OF MICHIGAN

                           COURT OF APPEALS



ALI A. EL-KHALIL,                                                  UNPUBLISHED
                                                                   November 14, 2019
              Plaintiff-Appellant,

v                                                                  No. 329986
                                                                   Wayne Circuit Court
OAKWOOD HEALTH CARE INC., OAKWOOD                                  LC No. 15-008259-CK
HOSPITAL SOUTHSHORE, OAKWOOD
HOSPITAL DEARBORN, DR. RODERICK
BOYES, M.D., and DR. IQBAL NASIR, M.D.,

              Defendant-Appellees.


                                        ON REMAND

Before: STEPHENS, P.J., and SERVITTO and SHAPIRO, JJ.


PER CURIAM.

       In this breach of contract and civil rights action, we twice previously affirmed the trial
court’s order granting summary disposition in defendants’ favor and dismissing plaintiff’s
complaint. El–Khalil v Oakwood Health Care Systems, Inc., unpublished per curiam opinion of
the Court of Appeals, issued April 4, 2017 (Docket No. 329986); El–Khalil v Oakwood Health
Care Systems, Inc., unpublished per curiam opinion of the Court of Appeals, issued April 17,
2018 (Docket No. 329986). In doing so, we reviewed the trial court’s summary disposition
decision under the standards set forth in MCL 2.116(C)(8) and (10). The Michigan Supreme
Court has now reversed our April 17, 2018 opinion, which affirmed the trial court’s decision
based upon MCR 2.116(C)(8), and remanded this case for consideration under MCR
2.116(C)(7). El-Khalil v Oakwood Health Care, Inc, __ Mich __; __ NW2d __ (2019). We
again affirm.

       In our prior opinions, we summarized the relevant facts as follows:

              Plaintiff, a podiatrist, began employment with defendant Oakwood
       Hospital Dearborn as a staff physician on May 27, 2008. He ended his staff
       employment in June 2011, at which time he entered into contracts, in the form of
       bylaws of medical staff, with the defendant medical facilities as an independent
       physician, obtaining staff privileges at Oakwood Annapolis Hospital, Oakwood
       Heritage Hospital, Oakwood Hospital and Medical Center, and Southshore
                                               -1-
      Medical Hospital. Every year plaintiff, like all other independent physicians, was
      required to request reappointment and be re-credentialed for the following year.
      Plaintiff worked without incident, obtaining reappointments and being re-
      credentialed over the next few years, building his practice.

              In 2014, plaintiff allegedly obtained information about certain physicians
      at Oakwood Hospital and Medical Center engaging in illegal activities (healthcare
      fraud and professional negligence). According to plaintiff, when he confronted
      them and reported the actions to proper authorities, defendants retaliated against
      him by initiating an administrative agency proceeding against him which resulted
      in plaintiff having to take anger management classes. In August 2014, plaintiff
      initiated legal action against the defendants for violation of the civil rights act
      (race discrimination) and for tortious interference with an advantageous business
      relationship, based upon the allegations that defendants had made against him and
      which had resulted in the administrative agency proceeding. These claims were
      dismissed on defendants' summary disposition motion, the trial court having
      found that defendants were statutorily immune from liability and that plaintiff
      failed to state a discrimination claim under the civil rights act. Plaintiff filed a
      delayed application for leave to appeal that decision with this Court, which we
      denied.1

              Plaintiff filed the instant action in June 2015, asserting that since the time
      he initially sued defendants, they have continued to engage in actions attempting
      to prevent plaintiff from practicing at Oakwood Dearborn and Oakwood
      Southshore. According to plaintiff, he in fact received correspondence from the
      Chiefs of Staff of those facilities, defendants Boyes and Nasir, indicating that his
      staff privileges at those locations would expire in June 2015 even though his
      privileges were not set to expire until November 2015. The correspondence
      further indicated that the medical executive committees of the facilities had
      recommended that plaintiff not be reappointed to the medical staffs. Plaintiff thus
      asserted claims of breach of contract and retaliation in violation of the civil rights
      act.

              Defendants moved for summary disposition pursuant to MCR 2.116(C)(7)
      and (8). They argued that plaintiff's staff privileges were set to expire in June
      2015 and that the executive committee decided not to renew his privileges such
      that there was no breach of contract. Defendants additionally argued that there
      was no breach of contract because the bylaws signed by plaintiff and defendants
      did not constitute a contract, that the breach of contract claim was barred by
      release and that defendants were entitled to qualified immunity. As to the civil
      rights claim, defendants asserted that plaintiff failed to set forth a prima facie case



1
 El–Khalil v Oakwood Health Care Systems, Inc., unpublished Order of the Court of Appeals,
entered January 8, 2016 (Docket No. 328569).


                                               -2-
       of retaliation and, because there is a statutory ban on disclosure of peer review
       information, plaintiff could not obtain discovery to support his claim. The trial
       court granted defendants' motion. The trial court found that the bylaws were an
       enforceable contract but that the documents submitted by the parties indicate that
       plaintiff's most recent appointment term was set to expire on June 25, 2015, not in
       November 2015 as plaintiff claims. Thus, defendants did not terminate plaintiff's
       appointment term. The trial court further found that defendants' failure to renew
       plaintiff's appointment was not a breach of contract, as the allegations relied upon
       by defendants in making their decision relate directly to plaintiff's ability to
       provide efficient and quality care and plaintiff provided no evidence that the peer
       review was a sham. The trial court further found that plaintiff released defendants
       from liability under the bylaws because plaintiff offered no support for his
       allegations of malice and bad faith. The trial court found that defendants followed
       the guidelines set forth in the bylaws and were entitled to qualified immunity
       under the Health Care Quality Improvement Act and the Michigan Peer Review
       Immunity Statute. Finally, the trial court found that plaintiff failed to state a
       claim for retaliation in that, essentially, plaintiff failed to establish any causal
       connection between his protected activity and an adverse employment action.

      Plaintiff asserts that the trial court erroneously dismissed his breach of contract claim.
We disagree.

        We review de novo a trial court's ruling on a motion for summary disposition. Anzaldua
v Neogen Corp, 292 Mich App 626, 629; 808 NW2d 804 (2011). Summary disposition is
appropriate under MCR 2.116(C)(7) because of release, immunity granted by law, or statute of
limitations, among other things. In reviewing a decision under MCR 2.116(C)(7), “we consider
all documentary evidence submitted by the parties, accepting as true the contents of the
complaint unless affidavits or other appropriate documents specifically contradict it.” Bryant v
Oakpointe Villa Nursing Ctr, 471 Mich 411, 419; 684 NW2d 864 (2004). A court must consider
the documentary evidence to determine whether there is a genuine issue of material fact
regarding whether a valid exception under MCR 2.116(C)(7) exists. Dextrom v Wexford Co, 287
Mich App 406, 431; 789 NW2d 211 (2010). “If no facts are in dispute, and if reasonable minds
could not differ regarding the legal effect of the facts, the question whether the claim is barred is
an issue of law for the court.” Id. We review de novo questions of law. Kessler v Kessler, 295
Mich App 54, 57; 811 NW2d 39 (2011).

        In his first amended complaint, plaintiff asserted that defendants breached the bylaws by
suspending his staff privileges prior to their November 2015 expiration without the required
notice and without following the specifically required procedure for suspending privileges.
Plaintiff alleged that “Defendants have breached the Bylaws by failing to follow proper
procedures and prematurely ending Plaintiff’s appointment.” Plaintiff no longer claims that he
was entitled to staff privileges after the June 2015 date his application for reappointment was
denied. We thus need not consider plaintiff's breach of contract claim premised upon the time
that his staff privileges were not renewed. In response to defendant’s motion for summary
disposition, plaintiff argued for the first time that defendants breached the bylaws by denying
him a renewal of staff privileges for reasons other than those related to the efficient delivery of
quality patient care and professional ability and judgment. Although this claim was not raised in

                                                -3-
plaintiff’s amended complaint, and is thus not a “well-pleaded allegation” that we can accept as
true and or “construe [] most favorable to the nonmoving party,” Xu v Gay, 257 Mich App 263,
266; 668 NW2d 166 (2003), because the Supreme Court has directed that we address plaintiff’s
breach of contract claim pursuant to MCR 2.116(C)(7), we will do so.

        The bylaws, attached to plaintiff’s complaint, set forth, in part, the following as basic
qualifications for membership:

              A. Basic Qualifications. Only Practitioners who can demonstrate their
       character, health, experience, training, demonstrated current professional
       competence, judgment, adherence to the ethics of their profession, and ability to
       work cooperatively with others, such that the Medical Staff and the Board are
       assured that they will furnish quality care in a manner that promotes a safe,
       cooperative and professional health care environment, shall be eligible for
       Medical Staff membership. (emphasis added) [Article II-Medical Staff
       Membership, Section 2-Qualifications for Membership]

Article II, Section 2, subsection C of the Bylaws further provides that membership or particular
clinical privileges will not be denied “on the basis of any criteria unrelated to the efficient
delivery of quality patient care in the hospital, to professional ability and judgment, or to the
community need.” Article II, Section 2, subsection D requires any physician appointed or
employed by the hospital to apply for medical staff membership before the appointment or
employment is binding.

        Plaintiff was required to complete a credentialing process set forth in Article II, Section 7
of the bylaws on a yearly basis in order to obtain reappointment. The reappointment process
included an evaluation of, among other things, the member’s professional performance and
judgment, professional ethics and conduct, including compliance with the bylaws, rules, medical
staff policies, and ability to work cooperatively with others at the hospital. Plaintiff requested
reappointment in 2015, but his application was denied and plaintiff claimed in his response to
defendants’ motion for summary disposition that the denial of his appointment was in violation
of Article II, Section II, C. of the bylaws and thus a breach of the parties’ contract. Plaintiff
asserted that defendants breached the bylaws by denying him a renewal of staff privileges for
reasons other than those related to the efficient delivery of quality patient care and to
professional ability and judgment. Defendants, on the other hand, asserted that plaintiff released
them from any liability arising out of the denial of reappointment.

        Before delving into whether the release applies, we first find that how a doctor interacts
with staff may serve as the basis for a reasonable belief that the quality of health care is being
affected, regardless of his or her record as a doctor in general, as stated in our prior opinion, and
we readopt the analysis in our prior opinion concerning this issue. El-Khalil v Oakwood Health
Care Inc, unpublished per curiam opinion issued by the Court of Appeals April 17, 2018 (Docket
No. 329986), reversed on other grounds, El-Khalil v Oakwood Healthcare, Inc, __ Mich __;
__NW2d __ (2019). The allegations relied upon by defendants in making their decision relate
directly to plaintiff's ability to provide efficient and quality care.

       The release, set forth in Article II, Section 3 of the Bylaws, provides:

                                                -4-
       All staff members and applicants shall be required to agree that the submission of
       an application (whether an original application or an application for
       reappointment) constitutes the following:

                                                ***

       5. The applicant or staff members agreement to release the Hospital, its agents
       and employees, and all members of the Governing Board, Administration, and
       Medical Staff from all liability for any statements made or any action taken in
       good faith and without malice by any person in connection with the consideration
       of this or any other application, in connection with any proceedings for
       reappointment, advancement, denial, or rescission of appointment, reduction,
       suspension or termination of privileges, or transfer to any other division of the
       Medical Staff, pursuant to this or any other application for appointment, and in
       connection with any other form of review of the professional practices of Medical
       Staff members in the Hospital.

Plaintiff does not argue that the release is ambiguous or inapplicable on its face. Rather, plaintiff
alleges that the denial of his reappointment was not made in good faith and was made with
malice so that the above release of liability is inapplicable. We disagree.

         “Good faith” is defined in Black’s Law Dictionary (11th ed.), in part, as “(1) a state of
mind consisting in honesty in belief or purpose, (2) faithfulness to one’s duty or obligation.”
“Bad faith” is defined in Black’s Law Dictionary (11th ed.) as “dishonesty of belief, purpose, or
motive.” “Malice” is defined in Black’s Law Dictionary (11th ed.) as “the intent, without
justification or excuse, to commit a wrongful act,” and in Merriam-Webster’s Collegiate
Dictionary (11th ed.) as a “desire to cause pain, injury, or distress to another.” Thus, for the
release to be inapplicable, plaintiff must allege and establish that defendants’ denial of his
reappointment was made with a dishonest belief, purpose, or motive, and with a desire to cause
plaintiff pain, injury, or distress.

         Plaintiff asserts that defendants failed to renew his staff privileges in retaliation for the
civil rights violation lawsuit he filed in August 20142 and because he did not “play well” with



2
  A copy of the August 2014 complaint was attached to defendants’ motion for summary
disposition and shows that plaintiff brought suit against Oakwood Healthcare Systems, Inc., Dr.
Henoch, Dr. Housner, Dr. Boyes, Dr. Guslits, Dr. Ringold, and Weingarten. Plaintiff’s claims
were for racial discrimination, defamation, and tortious interference with a business relationship.
Plaintiff alleged, in part, that several of the defendants were jealous and felt threatened by
plaintiff’s successful practice and thus filed false complaints against him involving anger
management issues. Plaintiff alleged that the filing of the false complaints resulted in Oakwood
requiring him to attend an anger management program. The trial court granted defendants’
motion for summary disposition, dismissing all claims (except one claim alleging defamation
against one doctor), in a November 21, 2014 order.


                                                 -5-
other doctors. We are to accept these allegations3 as true, and construe them most favorable to
plaintiff, “unless specifically contradicted by documentary evidence.” Gay, 257 Mich App at
266. Attached to plaintiff’s amended complaint was a May 5, 2015 letter from the medical staff
peer review committee which indicated that plaintiff failed to comply with the requirements of a
focused physician practice evaluation and was required to attend the next committee meeting to
discuss certain things. Plaintiff also attached to his complaint an undated letter from Dr. Zakaria
wherein Dr. Zakaria stated he was filing a formal complaint against plaintiff because of
plaintiff’s statements that made Dr. Zakaria feel unsafe, as well as a February 5, 2015 letter
detailing an encounter between plaintiff and another doctor wherein plaintiff acted in a
“threatening” manner. In addition, plaintiff attached a March 31, 2015 incident report detailing
Dr. Fong’s interaction with plaintiff on that date and plaintiff’s reported rude and disrespectful
behavior and plaintiff’s reaction in stating Dr. Fong had committed Medicare fraud. Plaintiff
additioally attached to his complaint text messages from plaintiff telling Dr. Mukherjea to stop
aggressive action toward plaintiff or he would seek legal advice and advising that plaintiff was
filing a grievance with Medicaid concerning Dr. Mukherjea. Plaintiff further attached a May 13,
2015 letter he wrote in response to the complaints made against him by other doctors. In that
letter, plaintiff indicated that Dr. Zakaria had a motive to make up allegations against him, that
he did not act in a threatening manner toward any doctor, that Dr. Fong had a long history of bias
against plaintiff, and that Dr. Mukherjea had personal issues with plaintiff and did not want
plaintiff to see a patient because plaintiff was in a lawsuit against the medical executive
committee. Plaintiff further stated in his responsive letter that he believed the complaints were
filed against him as part of an organized plan by Elaine Weingarten and Malcom Henoch due to
their racial prejudice and because he filed a lawsuit against them. Plaintiff also attached to his
complaint the June 16, 2015 letter to him from the medical executive committees informing him
that he would not be reappointed due to incidents reported by five members of the staff
concerning plaintiff’s threatening behavior and/or verbal abuse of them, and based on an
“identified pattern of past unprofessional and disruptive behavior” by plaintiff. Finally, plaintiff
provided a March 2015 memo from a senior medical staff coordinator indicating that plaintiff
had been the subject of disciplinary action related to his professional behavior and that, “to date,
[plaintiff] has been compliant with all requirements of the disciplinary action.

        The May 5, 2015 letter from the medical staff peer review committee, the complaints by
other doctors, and the memo actually provide support for defendants’ assertion that plaintiff’s
reappointment was denied due to complaints from five physicians at the medical facility as well
as other behaviors engaged in by plaintiff. Plaintiff’s May 13, 2015 letter written in response to
the complaints, on the other hand, indicates that the complaints may have been made falsely. If
the complaints were, in fact, falsely made, plaintiff would have a tenable argument that the
complaints were made with a dishonest belief, purpose, or motive, and with a desire to cause
plaintiff pain, injury, or distress. Significantly, however, plaintiff did not bring suit against any
of the persons who made the allegedly false statements against him. Instead, plaintiff has sued
Oakland Healthcare, Inc., Oakwood Hospital Southshore, Oakwood Hospital Dearborn, Dr.
Boyes (Chief of Staff at Oakwood Hospital Dearborn), and Dr. Nasir (Chief of Staff at Oakwood


3
    As previously indicated, these allegations did not appear in plaintiff’s complaint.


                                                   -6-
Hospital Southshore). Plaintiff’s current breach of contract allegation is that these defendants
violated the bylaws by failing to renew his staff privileges. In order to succeed on his claim and
avoid the release provision contained in the bylaws, plaintiff must allege and establish that these
defendants made a statement or took action on his reappointment request without good faith and
with malice. Plaintiff has not done so, or argued that defendants accepted the allegedly false
complaints made by other doctors while knowing or believing they were false.

        Good faith involves a state of mind. Plaintiff provided a written response, with
explanations and information, concerning the five recent complaints against him. While the
written response provides plaintiff’s opinion concerning the state of mind of the complaining
doctors, it does not follow that any particular state of mind held by those doctors when making
the purportedly false complaints was also the same state of mind held by defendants. At most,
plaintiff asserted in his response to defendants’ motion for summary disposition that “it appears
that the Defendants conducted a sham peer review to remove [him] from the hospital because he
did not ‘play well’ with others.” Plaintiff alleges, without providing any support, that defendants
wanted to get rid of him because he reported the illegal and fraudulent activities of several
physicians to state and federal law enforcement authorities and in retaliation for his 2014 lawsuit.
Defendant, however, has provided evidence refuting this allegation in the form of affidavits and
other documentary evidence.

        In support of their position that defendant was not reappointed because of complaints
against him and his behavior, defendants submitted an affidavit of Elaine Weingarten, the
administrative director for Oakwood Healthcare, Inc. Weingarten swore in the affidavit that she
is not a doctor, and that her job is to provide logistical and administrative support to the
physicians and committees involved in the credentialing and other peer review activities in
Oakwood hospitals. Weingarten swore that the Dearborn medical executive committee is
comprised of 21 physicians and received recommendations from the Oakwood-Dearborn
credentials committee and Oakwood’s medical staff professional review committee to deny
plaintiff’s reappointment. The Dearborn medical executive committee voted to deny plaintiff’s
reappointment. Weingarten swore that both the credentials committee and executive committee
had information concerning numerous complaints about plaintiff’s behavior available to them
and that the professional review committee considers complaints and possible disciplinary issues
regarding physicians and was well-acquainted with plaintiff. Weingarten swore that the
Southshore medical executive committee is comprised of 11 members who voted to deny
plaintiff’s reappointment and that the Wayne medical executive committee also voted to deny
plaintiff’s reappointment.

        Defendants also attached the affidavit of Dr. Roderick Boyes, a physician and the Chief
of Staff at Oakwood-Dearborn. Dr. Boyes swore that Oakwood-Dearborn medical staff office
has received numerous complaints about plaintiff over the past several years, including from
doctors reluctant to practice at the hospital due to plaintiff’s behaviors. Dr. Boyes attested that
plaintiff has been the subject of multiple medical staff committee meetings and processes and the
complaints over many years led him to conclude that the effective working environment at
Oakwood-Dearborn would be substantially disrupted and compromised if plaintiff were allowed
to continue practicing there. Dr. Boyes swore that he chairs the Dearborn medical executive
committee and was there when that committee voted to deny plaintiff’s reappointment.


                                                -7-
        Plaintiff has provided nothing by way of documents or evidence to refute the
documentary evidence specifically contradicting his claims of bad faith and malice or his claims
that defendants violated his civil rights under the Elliott Larsen Civil Rights Act, MCL 37.2101
et seq. Moreover, plaintiff does not allege or show that Dr. Boyes and Dr. Nasir were the ones
who made the ultimate decision regarding his reappointment. The unrefuted evidence indicates
that the Oakwood Dearborn Hospital medical executive committee consists of 21 members and
the Oakland Southshore Hospital medical executive committee consists of 11 members.
Presumably, more than one member would have to vote against plaintiff’s reappointment for
such a decision to be ultimately made. Because defendants have provided unrefuted
documentary evidence supporting their position that the failure to reappointment plaintiff was
not done with malice, based on bad faith, or in retaliation for plaintiff’s filing of a prior lawsuit 4,
we are not required to accept the contrary bare allegations by plaintiff as true. See, Oakpointe
Villa Nursing Ctr, 471 Mich at 419. Our consideration of the documentary evidence leads to a
conclusion that there is no genuine issue of material fact that the release is valid and applies.
Summary disposition was thus proper in favor of defendants.

        Although we find that summary disposition was appropriate in defendants’ favor based
upon application of the release under MCR 2.116(C)(7), we also find that defendants were
entitled to immunity with respect to plaintiff’s breach of contract claim.

        The Michigan Public Health Code requires that hospitals organize their physicians into a
medical staff “to enable an effective review of the professional practices in the hospital . . . . The
review shall include the quality and necessity of the care provided and the preventability of
complications and deaths occurring in the hospital.” MCL 333.21513(d). “Essential to the peer
review process is the candid and conscientious assessment of hospital practices.” Krusac v
Covenant Med Ctr, Inc, 497 Mich 251, 256; 865 NW2d 908 (2015). To that end, the Michigan
Legislature provides that documents and knowledge collected or used in the review process are
confidential: “[t]he records, data, and knowledge collected for or by individuals or committees
assigned a professional review function in a health facility or agency, or an institution of higher
education in this state that has colleges of osteopathic and human medicine, are confidential,
shall be used only for the purposes provided in this article, are not public records, and are not
subject to court subpoena.” MCL 333.20175(8); see also, MCL 333.21515. Also to that end,
MCL 331.531(3) provides that a “person, organization, or entity is not civilly or criminally liable
for providing information or data” to a review entity concerning the qualifications, competence,
or performance of a health care provider, or for an act or communication within its scope as a
review entity. This immunity does not, however, apply to a person, organization, or entity that
acts with malice. MCL 331.531(4). “Our Legislature also protects specific ‘review entities,’
such as a duly appointed peer review committee of a hospital, for those acts or communications


4
  To the extent necessary, we also adopt the analysis set forth in our prior opinion concerning the
lack of documentary support to establish a causal relation between the failure to reappointment
plaintiff and the filing of the 2014 lawsuit. El-Khalil v Oakwood Health Care Inc, unpublished
per curiam opinion issued by the Court of Appeals April 17, 2018 (Docket No. 329986), reversed
on other grounds, El-Khalil v Oakwood Healthcare, Inc, __ Mich __; __NW2d __ (2019).


                                                  -8-
within its scope as a review entity.” Feyz v Mercy Mem Hosp, 475 Mich 663, 682; 719 NW2d 1
(2006). Again, however, the review entity is not entitled to immunity if it acts with malice. Id.
“Malice,” for purposes of immunity in the above contexts is the “utilizing and acting on
information known to be false.” Id. at 687.

        Similarly, the Public Health Code, at 42 USC 11111(a)(1), provides immunity to
professional review bodies, persons acting as staff to the bodies, persons under contract or formal
agreement with the bodies, and any person who participates with or assists the bodies with their
actions (but does not apply to damages relating to civil rights). 42 USC 11111(2) provides
immunity to persons providing information to a professional review board, unless the
information is false and the person providing the information knew it was false.

        As previously stated, plaintiff has provided no evidentiary support for his claims that
defendants acted with malice, nor has he provided any evidence that Dr. Boyes or Dr. Nadir
relied upon information they knew to be false. Looking at the evidence provided, there is no
question of material fact that defendants followed the Bylaws and guidelines with respect to the
review process and are thus entitled to qualified immunity under the provisions set forth above
with respect to plaintiff’s breach of contract allegations.

       Affirmed.



                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Deborah A. Servitto
                                                            /s/ Douglas B. Shapiro




                                                -9-
