[Cite as WLB Radiology, L.L.C. v. Mercy Health N., L.L.C., 2016-Ohio-5276.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


WLB Radiology, LLC, et al.                                Court of Appeals No. L-16-1015

        Appellants                                        Trial Court No. CI0201402673

v.

Mercy Health North, LLC, dba
Mercy Radiology Group, et al.                             DECISION AND JUDGMENT

        Appellees                                         Decided: August 5, 2016

                                                *****

        Brenda A. Ray and Barbara E. Machin, for appellants.

        Kris M. Dawley and Robert J. Cochran, for appellees.

                                                *****

        JENSEN, P.J.

        {¶ 1} Plaintiffs-appellants, WLB Radiology, LLC, WLB Interventional, LLC, and

Wade L. Banker, M. D., appeal the January 14, 2016 judgment of the Lucas County

Court of Common Pleas granting summary judgment in favor of defendants-appellees,

Mercy Health North, LLC (dba Mercy Radiology Group) and MRG Associates, LLC.

For the reasons that follow we affirm the trial court judgment.
                                     I. Background

       {¶ 2} Wade Banker, M.D. is a radiologist who practices through his professional

corporations, WLB Radiology, LLC, and WLB Interventional, LLC (collectively referred

to as “Dr. Banker”). On August 1, 2011, Dr. Banker entered into a Professional Services

Agreement with Mercy Health System-Northern Region, which previously operated

under the name “Mercy Radiology Group,” and is now known as Mercy Health North,

LLC (“Mercy”). Pursuant to that agreement, Dr. Banker was to provide interventional

radiology (“IR”) coverage, primarily at St. Anne’s Hospital, as well as “limited on-site

diagnostic radiology services.” The agreement provided for a term of five years, but it

was terminable with or without cause with 90 days’ notice. On January 7, 2013, Mercy

terminated the agreement without cause. It declined to utilize Dr. Banker’s services

during the 90-day notice period, and instead compensated him $146,954.94 for those

three months, which it calculated based on Dr. Banker’s average salary for the three

months preceding his termination.

       {¶ 3} Dr. Banker filed suit on March 5, 2013, against Mercy, MRG Associates,

LLC (“MRG”), and Pamela Zipperer-Davis, who, through her company, ZD

Management, Inc., served as MRG’s chief executive officer. Dr. Banker dismissed the

action without prejudice on May 5, 2014. He re-filed on June 3, 2014, and amended his

complaint on January 21, 2015. In addition to the defendants named in the first-filed




2.
lawsuit,1 he also named as defendants ZD Management, Global Versa Radiology, Inc.

(“GVR”), Eyal Morag, M.D., and Andrew Rabin, M.D.

       {¶ 4} In his amended complaint, Dr. Banker alleged that (1) in violation of their

agreement, Mercy stopped compensating him for reading diagnostic studies and for

overtime work after March 6, 2012, yet retained the benefit of those services; (2) the

failure to compensate him for reading diagnostic studies skewed his average monthly

compensation, thereby resulting in an artificially low three-month average from which his

compensation was calculated for the 90-day notice period; (3) because he was not

permitted to work during the 90-day notice period, he was not properly compensated and

patient services were disrupted; (4) following his termination, he retained privileges at all

three Toledo-area Mercy Hospitals, yet his access codes were deleted, he was locked out

of the facilities, he was denied access to his patient files, and patients, radiology staff, and

other health care providers were erroneously informed that he no longer had privileges at

the hospitals; (5) this conduct interfered with his relationships with both referral sources

and patients; and (6) by prohibiting him from working during the 90-day notice period,

Mercy and MRG gained access to his patients and diverted them from him. His amended

complaint set forth eight claims:

        Count 1—breach of contract, against Mercy, MRG, and Zipperer-Davis;

        Count 2—unjust enrichment, against Mercy;

1
 Initially, Dr. Banker sued “Mercy Health North, LLC, dba Mercy Radiology Group,”
but corrected this to “Mercy Health System-Northern Region, dba Mercy Radiology
Group,” in his amended complaint.




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        Count 3—breach of contract, against Mercy, MRG, and Zipperer-Davis;

        Count 4—unjust enrichment, against Mercy and MRG;

        Count 5—tortious interference with contract, against Mercy, MRG, and

          Zipperer-Davis;

        Count 6—tortious interference with business expectations, against Mercy

          and MRG;

        Count 7—tortious interference with business expectations, against Mercy,

          MRG, and Dr. Morag; and

        Count 8—tortious interference with contract, against Mercy, MRG, GVR,

          Dr. Morag, and Dr. Rabin.

       {¶ 5} Dr. Banker eventually voluntarily dismissed his claims against Zipperer-

Davis, ZD Management, GVR, Dr. Morag, and Dr. Rabin. On August 14, 2015, Mercy

and MRG moved for summary judgment on all counts. The trial court granted their

motion in an opinion and judgment entry journalized on January 14, 2016. On the same

day, it also granted a motion to strike portions of the affidavits of Dr. Banker and

Gregory L. Gause, both of which had been submitted by Dr. Banker in opposition to

Mercy and MRG’s summary judgment motion. Dr. Banker appealed the trial court’s

judgments and assigns the following errors for our review:

              1. The trial court committed prejudicial error in finding there was no

       breach of the compensation terms of Plaintiff WLB Radiology’s contract.




4.
             2. The trial court committed prejudicial error in misapplying the law

      and in finding no material issues of disputed fact as to whether Defendants

      interfered with Plaintiffs’ current and prospective business relationships.

             3. The trial court committed prejudicial error in striking paragraphs

      4, 7 and 10 and Exhibit #7 of the Dr. Banker affidavit.

                                II. Standard of Review

      {¶ 6} Appellate review of a summary judgment is de novo, Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same

standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,

572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is

demonstrated:

      (1) that there is no genuine issue as to any material fact; (2) that the moving

      party is entitled to judgment as a matter of law; and (3) that reasonable

      minds can come to but one conclusion, and that conclusion is adverse to the

      party against whom the motion for summary judgment is made, who is

      entitled to have the evidence construed most strongly in his favor. Harless

      v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375 N.E.2d 46

      (1978), Civ.R. 56(C).

      {¶ 7} When seeking summary judgment, a party must specifically delineate the

basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526

N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate




5.
the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,

662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is

made, an adverse party may not rest on mere allegations or denials in the pleadings, but

must respond with specific facts showing that there is a genuine issue of material fact.

Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A

“material” fact is one which would affect the outcome of the suit under the applicable

substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733

N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,

675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).

                                   III. Law and Analysis

       {¶ 8} In this appeal, Dr. Banker claims error in the trial court’s decision granting

summary judgment in favor of Mercy and MRG on his claims for breach of contract and

tortious interference with contract and business expectations. He also claims error in the

trial court’s decision to strike portions of his own affidavit submitted in opposition to

Mercy and MRG’s motion for summary judgment. We address Dr. Banker’s assignments

of error out of order.

        A. Dr. Banker’s Affidavit Opposing the Summary Judgment Motion

       {¶ 9} In opposing Mercy and MRG’s motion for summary judgment, Dr. Banker

submitted his own affidavit. Mercy and MRG moved to strike portions of Dr. Banker’s

affidavit, and the trial court granted their motion in part. Dr. Banker claims that the trial




6.
court erred in striking paragraphs 4, 7, and 10 of the affidavit, as well as a document

attached to paragraph 10 as Exhibit #7. The relevant passages provide as follows:

              4. I was told at the time I executed the contract with MRG that my

       duties and compensation would remain the same. MRG added a provision

       for the payment of overtime at $225 an hour, which had been the practice of

       IA, but was not in writing.

              7. Based on documents received from Defendants, I have been able

       to determine that between March 6, 2012 and January 7, 2013, I read a total

       of One Thousand Seven Hundred Twenty (1,720) ct scans for which WLB

       Radiology was not compensated. At $40 per ct scan, this totals a $68,800

       loss of compensation which was not calculated into the monthly average

       earnings on which Defendants calculated the last 90 days following notice

       of termination.

              10. Exhibit #7 is a list of patient files that were removed from the

       office I shared with other radiologists at Mercy St. Anne’s Hospital.

       Despite my repeated attempts and those of my attorney to locate and

       retrieve these files so I could follow up with planned patient care, they were

       not turned over until the deposition of Janet Miller on December 10, 2013,

       nearly a year later. Without the list of patients and their referring physician,

       I was unable to make contact and follow up with their care.




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       {¶ 10} With respect to paragraph 4, the trial court agreed with Mercy and MRG

and concluded that the statements were hearsay. It observed that Dr. Banker had failed to

argue otherwise. With respect to paragraph 7, the trial court determined that Dr.

Banker’s assertion that he calculated the number of CT scans he read “based on

documents received from Defendants” was insufficient to establish personal knowledge.

And with respect to paragraph 10 and Exhibit #7, the court struck that paragraph and

exhibit as inadmissible hearsay. It rejected Dr. Banker’s argument that Exhibit #7 is

excepted from the hearsay rule under Evid.R. 803(5) or 612.

       {¶ 11} We address each of these paragraphs in turn.

                                  1. Paragraph 4

       {¶ 12} Dr. Banker argues that the trial court erred in striking paragraph 4 because

the statements contained in that paragraph were offered not for the truth of the matter

asserted, but rather to show Dr. Banker’s state of mind in executing the professional

services agreement. Mercy and MRG point out that Dr. Banker raises this argument for

the first time on appeal and, in any event, Dr. Banker’s state of mind is irrelevant because

there is no question that the parties had an agreement—the question is whether the trial

court properly interpreted the agreement.

       {¶ 13} As we have often recognized, “[i]t is a cardinal rule of appellate review that

a party cannot assert new legal arguments for the first time on appeal.” (Internal citations

and quotations omitted.) Murray v. Auto-Owners Ins. Co., 2015-Ohio-3295, 40 N.E.3d

679, ¶ 26 (6th Dist.). Having failed to raise this argument in the trial court, Dr. Banker is




8.
barred from asserting it now. We, therefore, find no error in the trial court’s decision to

strike paragraph 4 of Dr. Banker’s affidavit.

                                      2. Paragraph 7

       {¶ 14} With respect to paragraph 7 of the affidavit, Dr. Banker argues that he

testified at his August 9, 2013 deposition that he would be able to calculate the number of

CT scans he read from data on Mercy’s PAC system. He claims that the data was

attached as an exhibit to his December 20, 2013 deposition and that both the August and

December 2013 depositions were filed with the court. He explains that the intent of his

statement in paragraph 7 “was to inform the trial court that evidence of the

uncompensated ct scans was contained in the record before it and state his lay opinion,

pursuant to Evid.R. 701, based on his personal perception of the number of

uncompensated ct scan reads encompassed within his claim for breach of contract.”

       {¶ 15} Mercy and MRG counter that Dr. Banker’s affidavit was properly stricken

because it failed to incorporate the documents relied upon, failed to identify the

documents relied upon, and failed to explain how he arrived at his calculation. They

point us to TPI Asset Mgmt., LLC v. Conrad-Eiford, 193 Ohio App.3d 38, 2011-Ohio-

1405, 950 N.E.2d 1018, ¶ 24 (2d Dist.), where the court explained:

              [An] affidavit must demonstrate the particular basis on which the

       affiant gained his understanding of the fact or facts, and that basis must be

       sufficient to support a finding of fact by the court that the affiant “has

       personal knowledge of the matter” concerned. Hearsay knowledge based




9.
       on the affiant’s review of hearsay business records, for example, is

       insufficient. (Internal citations omitted.)

       {¶ 16} Civ.R. 56(E) provides that “[s]worn or certified copies of all papers or parts

of papers referred to in an affidavit shall be attached to or served with the affidavit.”

Here, not only are the documents relied upon by Dr. Banker not attached, they are also

not identified. In this way, Dr. Banker’s affidavit is flawed in much the same way as the

affidavits at issue in TPI Asset Mgmt. See id. at ¶ 25 (“Even if the * * * affidavits did

portray the necessary personal knowledge of the facts contained in [the] affidavits, that

would not permit the court to rely on the copies of the documents TPI submitted in

support of its motion for summary judgment. The affidavits make no specific reference

to those documents.”). We find no error in the trial court’s decision to strike paragraph 7

of Dr. Banker’s affidavit.

                                      3. Paragraph 10

       {¶ 17} In the trial court, Dr. Banker argued that Exhibit #7, referred to in

paragraph 10 of his affidavit, is a recorded recollection under Evid.R. 803(5), or a writing

to refresh memory, under Evid.R. 612, thus the hearsay rules do not bar its admission.

He now argues, however, that the trial court failed to “consider alternative avenues of

evidentiary admissibility.” To that end, he claims that Exhibit #7 is admissible as a

summary prepared by counsel under Evid.R. 1006. He claims that this document was

attached to his affidavit “not to prove the truth of the matter asserted, but to create a

summary of the existence of these files and to evidence the number of patients




10.
involved * * *.” Mercy and MRG counter that this argument should be rejected because

it is being raised for the first time on appeal, and that even if preserved for appeal, Dr.

Banker failed to satisfy the foundational requirements for admission as a summary under

Evid.R. 1006.

       {¶ 18} Ohio courts recognize that three elements must be satisfied before a

summary may be admissible under Evid.R. 1006: (1) the writings must be voluminous;

(2) a proper foundation must be established, including a foundation for the admissibility

of the original documents upon which the summary is based; and (3) the originals or

duplicates must be made available to all litigants for examination or copying at any

reasonable time and place. Dellenbach v. Robinson, 95 Ohio App.3d 358, 375, 642

N.E.2d 638 (10th Dist.1993), citing Weissenberger’s Ohio Evidence, 1993 Courtroom

Manual, Chapter 1006. We agree with Mercy and MRG that Dr. Banker failed to raise

his Evid.R. 1006 argument in the trial court, and is, therefore, barred from raising it on

appeal. We also agree that he failed to establish a foundation for the admission of the

summary contained in Exhibit #7.

       {¶ 19} Accordingly, we find no error in the trial court’s decision to strike

paragraph 10 and Exhibit #7, and we find Dr. Banker’s third assignment of error not

well-taken.

                                    Breach of Contract

       {¶ 20} Dr. Banker contends that Mercy and MRG breached the terms of their

agreement when they unilaterally stopped paying him for reading CT scans and for




11.
working overtime. Related to this, he claims that they committed a second breach when

they calculated his salary for the 90-day notice period using a three-month average that

did not include payment for reading CT scans and working overtime. Mercy and MRG

counter that (1) the contract expressly provided that Mercy controlled scheduling, and

(2) Dr. Banker failed to submit the proper paperwork requesting payment for these

services, thus he was not entitled to additional compensation and Mercy appropriately

compensated him for the 90-day notice period.

       {¶ 21} To prevail on a claim for breach of contract, the plaintiff must demonstrate

the existence of a contract, performance by the plaintiff, breach by the defendant, and

damage or loss to the plaintiff. Siemaszko v. FirstEnergy Operating Co. (FENOC), 187

Ohio App.3d 437, 2010-Ohio-2121, 932 N.E.2d 414, ¶ 23 (6th Dist.). In construing a

written agreement, our objective is to ascertain and give effect to the intent of the parties.

Cont’l Tire N. Am. v. Titan Tire Corp., 6th Dist. Williams No. WM-09-010, 2010-Ohio-

1355, ¶ 24. We, therefore, begin by examining the relevant provisions of the parties’

agreement to determine their respective obligations.

       {¶ 22} Section I sets forth Dr. Banker’s duties:

              I. DUTIES OF THE PROVIDER

              1.01 Provision Of Provider Services.

              ***

              C. Provider shall provide documentation, on a monthly basis, on the

       form attached hereto as Schedule I, or other suitable documentation




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      acceptable to Mercy, of the amount of time expended in the performance of

      these Services hereunder. Such documentation will be completed and

      submitted to MHS by or on the tenth (10th) day after the end of each month

      and in a form suitable for Medicare, Medicaid and Other third-party

      agreement cost reimbursement purposes. No compensation for these

      Services will be made by MHS until such documentation has been received.

      No compensation for services shall be made by MHS for time logs

      submitted more than sixty (60) days after the end of the month in which the

      services were rendered.

            ***

            1.06 Compensation For Services And Billings/Third-Party

      Participation.

            ***

            B. Payments will be made on a monthly basis within 30 days

      following the receipt by MHS of the appropriate documentation as outlined

      in section 1.01.C. No payment shall be made by MHS unless and until this

      documentation is provided by Provider. Payment shall also be contingent

      on the timely proper preparation and filing of medical records and reports

      as set forth in section 1.04. (Emphasis added.)




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       {¶ 23} Section IV of the contract sets forth the term of the agreement and the

parties’ rights with respect to termination of the agreement:

              IV. TERM AND TERMINATION

              a. Term. This Agreement shall commence on August 1, 2011 (the

       “Effective Date”) and subject to section 4.02, shall continue in effect for a

       period of five years, unless and until terminated in accordance with section

       4.02 hereof.

              b. Termination.

              A. Either party may terminate this Agreement at any time, with or

       without cause, upon providing not less than ninety (90) days prior written

       notice to the other party. (Emphasis added.)

       {¶ 24} Section VI prohibited the parties from unilaterally amending the

agreement:

              VI. MISCELLANEOUS

              6.05 Miscellaneous. * * * This Agreement cannot be amended or

       modified in any respect, unless such amendment or modification is

       evidenced by a written instrument executed by MHS and Provider. The

       failure by MHS or Provider to exercise any right provided for herein shall

       not be deemed a waiver of any right hereunder. (Emphasis added.)




14.
      {¶ 25} And Exhibit B to the agreement sets forth in greater detail Dr. Banker’s

duties and the terms of his compensation:

      EXHIBIT B

      Physician Duties.

       On-site work—Provider is expected to work on-site, as scheduled by

          MHS, normal weekday work hours are between 7:30 am-5:00 pm.

       Schedule will be a minimum of 40 weeks on-site per year, unless

          additional weeks are agreed to by MHS and provider.

       In addition to providing interventional radiology coverage on site at the

          Hospital, Provider will provide limited on-site diagnostic radiology

          services, by reading diagnostic studies unrelated to Providers

          interventional radiology procedures as requested by MHS and as time

          permits.

       On-call—Provider shall provide weekly interventional radiology call

          coverage at the Hospital, Monday to Sunday, at least 12 weeks per

          calendar year (pro-rated for any period less than a full calendar year).

       To the greatest extent practicable, Provider shall provide MHS with

          reasonable (and, in any event, not less than 8 weeks) advance notice of

          scheduled time off.




15.
      Compensation.

       Weekday On-Site IR Coverage – providers compensation for weekday

          on call interventional radiology coverage shall be two thousand four

          hundred dollars ($2,400.00) per day.

       Limited Onsite Diagnostic Services – Provider shall be paid $40 per

          diagnostic CT study read when providing the above specified limited

          onsite diagnostic services.

       If physician is requested by MHS (outside of his normal work

          schedule), diagnostic reading will be compensated at a rate of $225.00

          per hour.

       For interventional radiology call coverage, Providers compensation

          shall be one thousand eight hundred dollars $1,800 per week.

       IR Call Coverage—All compensation shall be payable on a monthly

          basis within (30) days following the receipt by MHS of the appropriate

          documentation of services.

          * * * (Emphasis added.)

      {¶ 26} For the first seven months after entering into the agreement, Dr. Banker

submitted monthly time sheets and was paid for (1) each weekday worked at $2,400 per

day; (2) each day he was on call at a prorated amount of $1,800 per week; (3) after-hours

and weekend hours at $225 per hour; and (4) each CT read at $40 per CT. For example,




16.
for the period of September 1, 2011, to September 30, 2011, he submitted a time sheet

requesting and receiving payment as follows:

       174 CTs at $40 per CT for a total of $6,960;

       20 days worked at $2,400 per day for a total of $48,000;

       11 after-hours reads at $225 per hour for a total of $2,475;

       9 hours of weekend reads at $225 per hour for a total of $2,025; and

       4 on call days at $1,800 per week for a total of $1,028.57.

      {¶ 27} On March 6, 2012, Dr. Banker sent the following email to Zipperer-Davis,2

along with language recited from Exhibit B of his contract:

             Pamela,

             The below is word for word out of my contract. The second bullet

      point under compensation states that I can read CT studies at any time at 40

      dollars per CT. I have been reading them after 4pm because Deb asked me

      not to read before 4pm. Out of respect for her and her opinions, I have not

      been doing that. Nor does this state that I am required to take any

      diagnostic call.

             Wade




2
 Dr. Banker characterizes this email as a response to an email from Zipperer-Davis,
however, the sequence of emails appears to be Dr. Banker’s email, sent Tuesday, March
6, 2012, at 5:00 p.m., then Zipperer-Davis’ email, sent Tuesday, March 6, 2012, at 6:24
p.m.




17.
       {¶ 28} Zipperer-Davis responded that same day as follows:

              Wade, we do not need you to read CTs at all unless you are doing it

       on days that the IR schedule is light during your 7:30-5:00 pm shift. After

       February, I will not approve any additional comp for this work.

              I will ask Deb to remove you from dx. call. Jeff and I will work on a

       new agreement with you, that works for both parties, when we finish the

       dx. contracts.

       {¶ 29} Dr. Banker stopped submitting payment requests for CTs he read after this

date. However, he claims that he continued to read CTs and that radiologists were

repeatedly advised by management to “clean up” the list of unread CTs before ending

their shifts, thus he continued to read CTs without being paid. Dr. Banker claims that

Zipperer-Davis’ refusal to approve payment for his reading of CTs constituted a

unilateral modification of the terms of his compensation, violating section 6.05 of the

parties’ contract.

       {¶ 30} Mercy and MRG claim that under the agreement, Dr. Banker would

provide services “as requested,” “as assigned,” and “as scheduled” by Mercy. They

recognize that the agreement could be modified only if agreed to in writing by both

parties, and they deny that the March 6, 2012 email from Zipperer-Davis was a unilateral

modification of the agreement. They instead describe it as an exercise of Mercy’s

discretion to request, assign, and schedule Dr. Banker’s services. They also maintain that




18.
Dr. Banker failed to document the CT readings or submit paperwork requesting payment

for those services as required under sections 1.01(C) and 1.06(B) of the agreement.

       {¶ 31} The trial court agreed with Mercy and MRG that the March 6, 2012

Zipperer-Davis email was not a unilateral modification of the agreement and that the

terms of the agreement made clear that Dr. Banker was to read diagnostic studies only as

requested by Mercy, only as time permitted, and only if Dr. Banker submitted the

required documentation. It held that there was no evidence that Mercy requested him to

read CTs after March of 2012, or that Dr. Banker submitted the appropriate

documentation, thus Mercy did not breach the contract by failing to compensate Dr.

Banker for these services.

       {¶ 32} With respect to payment following notice of Mercy’s termination of the

agreement, the court held that Mercy and MRG did not breach the agreement by failing to

include CTs read and overtime worked in calculating Dr. Banker’s salary during the 90-

day notice period. It reasoned that (1) “there is no provision within the Contract that

requires a specific method for payment of Dr. Banker after his termination notice has

been issued,” and (2) “there is no documentation submitted by Dr. Banker as to the

overtime hours worked or CT scans read that could allow defendants to factor that time

into their payment calculation.”

       {¶ 33} Whether or not Dr. Banker continued to read CTs after March 6, 2012, we

agree with the trial court that there is no evidence that he submitted the documentation

required under 1.01(C) of the parties’ agreement. Section 1.01(C) plainly states that




19.
“[n]o compensation for services shall be made by MHS for time logs submitted more than

sixty (60) days after the end of the month in which the services were rendered.”

(Emphasis added.) Dr. Banker failed to submit any such logs despite his insistence that

he was entitled to compensation under the terms of the agreement.

       {¶ 34} Dr. Banker argues that under section 6.05 of the agreement, “the failure by

MHS or Provider to exercise any right provided for herein shall not be deemed a waiver

of any right hereunder.” However, the right to payment for services rendered under the

agreement was expressly conditioned on Dr. Banker submitting the required paperwork.

Dr. Banker knew that under the terms of the agreement, he was under a duty to submit

time logs within 60 days of the end of the month during which services were rendered. If

he believed that he was entitled to payment for each CT he read, it was incumbent on him

to submit the required paperwork.

       {¶ 35} We acknowledge that a list of approximately 20 recipients received an

email from Mark Reinhard, MRG’s practice administrator, dated January 3, 2013,

reminding them to “make sure the que is cleaned up” before leaving every day. There is

also an email dated May 22, 2012, from Zipperer-Davis to 12 radiologists attaching a

shift log of unread studies at each of Mercy’s three area hospitals. But there was no

evidence presented that Dr. Banker, in particular, was requested to review CTs and, in

fact, he was specifically instructed not to read CTs “at all” unless the IR schedule during

his shift was light.




20.
       {¶ 36} We also acknowledge that Dr. Banker requested during discovery and

received from Mercy a log that would enable him to determine the number of CTs he

read in 2012. By that time, however, the 60-day period for submitting time sheets had

long passed and Dr. Banker was unable to perform under the agreement. Accordingly,

we find no error in the trial court’s conclusion that Mercy and MRG did not breach the

agreement with Dr. Banker. Related to this, we find no breach by Mercy or MRG in

failing to factor CTs read by Dr. Banker in 2012 in calculating his compensation for the

90-day notice period.

       {¶ 37} Accordingly, we find Dr. Banker’s first assignment of error not well-taken.

       C. Interference With Current and Prospective Business Relationships

       {¶ 38} Dr. Banker contends that Mercy and MRG tortiously interfered with his

contracts and business relationships with both patients and referral sources. In his second

assignment of error, he claims that the trial court ignored relevant case law and

incorrectly determined that there existed no genuine issue of material fact with respect to

these claims.

       {¶ 39} “The torts of interference with business relationships and contract rights

generally occur when a person, without a privilege to do so, induces or otherwise

purposely causes a third person not to enter into or continue a business relation with

another, or not to perform a contract with another.” A & B-Abell Elevator Co. v.

Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 73 Ohio St. 3d 1, 14, 651 N.E.2d

1283 (1995). A claim for tortious interference with a contract requires proof of (1) the




21.
existence of a contract, (2) the wrongdoer’s knowledge of the contract, (3) intentional

procurement of the contract’s breach, (4) the lack of justification, and (5) resulting

damages. (Citations omitted.) Ginn v. Stonecreek Dental Care, 2015-Ohio-1600, 30

N.E.3d 1034, ¶ 12 (12th Dist.). A claim for a tortious interference with a business

relationship requires proof of (1) the existence of a business relationship; (2) the

wrongdoer’s knowledge of the relationship; (3) an intentional interference causing a

breach or termination of the relationship; and (4) resulting damages. (Citations omitted.)

Id. at ¶ 11.

       {¶ 40} “The main distinction between tortious interference with a contractual

relationship and tortious interference with a business relationship is that interference with

a business relationship includes intentional interference with prospective contractual

relations not yet reduced to a contract.” Diamond Wine & Spirits, Inc. v. Dayton

Heidelberg Distrib. Co., Inc., 148 Ohio App.3d 596, 604, 2002-Ohio-3932, 774 N.E.2d

775, ¶ 23 (3d Dist.). Ohio courts have recognized that tortious interference with a

business relationship is applicable to terminable-at-will contracts. Lapping v. HM Health

Servs., 11th Dist. Trumbull No. 2000-T-006, 2001 Ohio App. LEXIS 5634, *24 (Dec. 14,

2001). A patient-physician relationship is one that it is terminable at-will. Significantly,

Ohio does not recognize the tort of negligent interference with a contract or business

relationship. MedCorp, Inc. v. Mercy Health Partners, 6th Dist. Lucas No. L-08-1227,

2009-Ohio-988, ¶ 17.




22.
       {¶ 41} We address Dr. Banker’s claims with respect to both his patients and

referral sources.

                              1. Relationships with Patients

       {¶ 42} With respect to his contracts with patients, Dr. Banker claims that by

terminating him immediately without allowing him to work during the 90-day notice

period, Mercy and MRG prevented him from providing follow-up care to his patients,

many of whom had been referred to him from outside Mercy. He claims that his access

codes were deleted despite the fact that he maintained privileges at all three Toledo-area

Mercy hospitals, and his handwritten patient treatment notes were removed from his

office. Dr. Banker also contends that the radiology staff was told that he no longer

worked at St. Anne’s Hospital, did not maintain privileges, and could not be scheduled

for procedures there.

       {¶ 43} Mercy and MRG counter that (1) Dr. Banker failed to identify any patients

with whom he had contracts, and (2) there is no evidence that Mercy or MRG

intentionally refused to allow Dr. Banker access to Mercy facilities or that they told

patients that he no longer worked at or could perform procedures at Mercy. Any

assertion to that effect, Mercy and MRG insist, is based on inadmissible hearsay

statements.

       {¶ 44} The trial court agreed with Mercy and MRG that Dr. Banker failed to

identify any specific physician-patient relationship that they had interfered with, or that

they had intentionally interfered with any such relationship.




23.
       {¶ 45} As an initial matter, Dr. Banker argues that the trial court applied cases that

arose in a commercial setting, and, therefore, failed to take into account the unique

attributes of the physician-patient relationship. He urges us to consider the Second

District’s decision in Shah v. Cardiology South, Inc., 2d Dist. Montgomery No. 20440,

2005-Ohio-211, because it recognizes the trust and confidence associated with the

physician-patient relationship and the wrongfulness of a medical corporation’s refusal to

allow a physician access to his patients’ records or to provide the physician’s contact

information to patients.

       {¶ 46} In Shah, the physician-plaintiff bought shares in the defendant-cardiology

group and entered into an agreement whereby he would provide nuclear reading services

to the group, thereby allowing the group to avoid referring those services elsewhere. The

physician eventually separated from the group. He brought several claims against it,

including a claim for tortious interference with business relationships. He alleged that the

group refused to tell patients how they could contact him, provided misinformation to

patients, and refused to transfer patient files to him. The physician argued that this

caused him to lose patients. The group maintained that the patients belonged to the

referring physician within the group.

       {¶ 47} The trial court concluded that the physician failed to show that he lost

clients as a direct result of a wrongful act by the group, and it determined that the group

had an “equal right to compete with [the physician] for business from patients.” While

the appellate court agreed with the trial court that the physician-patient relationship is a




24.
business interest, it differentiated that relationship from a typical business relationship

because of the trust and confidence that exists between a physician and patient. It

concluded that the group was “not privileged to deny information about its former

physician/employee’s whereabouts to patients he treated while he was an employee,” and

that it also was not “privileged to refuse to forward medical records concerning care

administered to the patient by the physician while he was an employee.” However,

because the physician had been unable to offer any evidence showing “who those persons

were or what their care that was lost to him might have involved,” it concluded that the

trial court properly granted summary judgment in favor of the group on the physician’s

tortious interference claims.

       {¶ 48} Dr. Banker argues that at his depositions, he provided a few names of

patients with whom he had relationships, and that paragraph 10 and Exhibit #7 of his

affidavit in support of his summary judgment motion, listing the names of patients whose

files were removed from his office, identified additional patients. He insists that these are

the individuals with whom he had established patient-physician relationships, and until

defense counsel relinquished the files, he had been unable to recall their names. He

maintains that without his files, he had no means of contacting these patients or their

referring physicians or of determining what follow-up care was necessary.3




3
 Interestingly, the names of the patients identified at Dr. Banker’s depositions do not
appear in Exhibit #7.




25.
       {¶ 49} There are several problems with Dr. Banker’s claims. For one, the court

struck paragraph 10 and Exhibit #7, and as we have already articulated, the court did not

err in doing so. In addition, Dr. Banker failed to offer admissible evidence that any

particular patient or referral source was misinformed as to his ability to practice or was

denied his contact information. Although Dr. Banker relies on Shah, like the physician in

that case, he failed to present evidence showing what care was lost to him despite having

been provided with his patient notes before responding to Mercy and MRG’s motion for

summary judgment. See also Sickle-Santanello v. Ohiohealth Corp., Franklin C.P. No.

10 CV 17393, 2013 Ohio Misc. LEXIS 9348, *19 (May 31, 2013) (“General allegations

of interference without presenting evidence of actual patients lost as a proximate result of

the actions of the defendant are insufficient to withstand summary judgment.”). We also

note that the parties’ agreement specifically stated at section 1.04(A) that “all medical

records prepared by Provider pursuant to this Agreement are the property of MHS and the

original records may not be removed from MHS.” This would appear to apply regardless

of whether the referral originated inside or outside the Mercy system. There is no

evidence that any request for medical records properly authorized by a patient was

denied. Thus, we find nothing improper with respect to Mercy and MRG removing

patient treatment notes from Dr. Banker’s office.

       {¶ 50} Turning to alleged misinformation provided to patients, Dr. Banker claims

that the deposition of Karen Miller, manager of the radiology department at St. Anne’s

Hospital, and Lori Parker, the nursing team leader for the IR department, establish that




26.
misinformation was provided concerning Dr. Banker’s ability to see patients. Miller

testified that she initially assumed that Dr. Banker could no longer perform procedures

because that had been the case when other radiologists had been terminated. She told the

staff that Dr. Banker had been terminated, but told them that if anyone called to schedule

an appointment with him, they should forward the calls to scheduling or to the medical

staff office and they could contact Dr. Banker. Parker testified that Miller told her that

Dr. Banker no longer had privileges to practice at the hospital. She said that on “a couple

instances” she told patients that he no longer practiced there, but in those cases, she

notified the scheduler so Dr. Banker could be contacted. Parker said that she was told

that she could not schedule procedures with Dr. Banker, but he resumed performing

procedures within a couple months after he was terminated.

       {¶ 51} Mercy and MRG point out that Miller’s misunderstanding of Dr. Banker’s

ability to practice at the hospital existed for a very short period of time. They also

emphasize that Miller testified that (1) she did not communicate this to any patients, and

(2) she instructed radiology staff that any calls about patients wanting to schedule

appointments with Dr. Banker should be referred to Mercy’s medical staff office.

       {¶ 52} As explained, Ohio does not recognize a claim for negligent interference

with business relationships. Here, Miller incorrectly informed radiology staff that Dr.

Banker could no longer practice at the hospital based on a faulty assumption that his

situation was similar to that of radiologists who had been terminated in the past. There is

no evidence that her conduct was motivated by any intent to interfere with Dr. Banker’s




27.
contracts or business relationships. At most, Miller’s conduct was negligent. The same

is true with respect to Parker.

       {¶ 53} We, therefore, find that Dr. Banker failed to create a genuine issue of

material fact with respect to his claims that Mercy and MRG tortiously interfered with his

contracts and relationships with patients.

                         2. Relationships with Referral Sources

       {¶ 54} Turning to Dr. Banker’s relationships with referral sources and other

medical providers, Dr. Banker believes that physicians and outside medical providers

were told that they could not schedule procedures specifically with him and that patients

would be treated by whichever MRG radiologist was scheduled to work. He describes

that his ability to provide radiological services was “brought to a standstill” by Mercy and

MRG’s interference with his current and prospective patient and physician relationships.

He maintains that the testimony of Karen Werdehoff, the nursing director at Regency

Hospital (nka Sylvania Center) (“Regency”), a skilled nursing facility, validates his

position that Mercy and MRG interfered with his attempts to obtain referrals. Dr. Banker

also claims that St. Anne’s president, Brad Bertke, told oncologists and ER physicians

that they were to refer patients first to MRG, and only if MRG could not meet their needs

should they refer patients to Dr. Banker.

       {¶ 55} Mercy and MRG maintain that the only third-party referral source Dr.

Banker identified was Regency. They claim that there is no evidence that they were

aware of any business relationship between Dr. Banker and Regency, or that they




28.
interfered with this relationship. They insist that the only evidence cited by Dr. Banker is

based on inadmissible hearsay.

       {¶ 56} The trial court agreed that the only business relationship that Dr. Banker

identified was with Regency. It held that Dr. Banker failed to establish that Mercy or

MRG was aware of the relationship or had interfered with it.

       {¶ 57} Werdehoff testified that her facility had been interested in utilizing Dr.

Banker’s services. She said that her staff was advised of a plan to schedule procedures

with Dr. Banker, but “the reports coming back to [her] from floor staff or nurse managers

would be that they were unable to schedule with Dr. Banker, and it usually was just

different reasons.” She said that it was reported to her that when they called the IR

department, they were told that they could not schedule with a physician that way and

would have to contact central scheduling, or they were told that they could not guarantee

which doctor they would get or when they could get an appointment. Werdehoff said she

tried to schedule a patient once herself but was told that they were having technical

difficulties and the computers were down. She could not identify who she spoke to or

which department she called.

       {¶ 58} Werdehoff’s testimony does not support Dr. Banker’s claim. Her

testimony with respect to what other nursing staff was told by unidentified Mercy

personnel is inadmissible hearsay. And there is no evidence indicating that the response

she received during her single call to Mercy was untrue or was made with the intent to

interfere with Dr. Banker’s relationship with Regency.




29.
         {¶ 59} Dr. Banker also claims that emergency room physicians and oncologists

were misinformed as to his ability to practice at the hospitals. Again, this assertion relies

upon hearsay evidence. He presented no admissible evidence that his potential referral

sources were told that he could no longer perform procedures. At his deposition, Bertke

acknowledged that on a couple of occasions, he told inquiring physicians that Dr. Banker

was available for referrals and that “if you feel that you need to use his services, you

should use his services.” He expressed that he hoped that the physicians could use MRG,

but told them that if they did not think the group was meeting their needs, they were able

to use Dr. Banker. We do not agree with Dr. Banker that this statement rises to the level

of a tortious interference with his business relationships.

         {¶ 60} Accordingly, we find Dr. Banker’s second assignment of error not well-

taken.

                                        Conclusion

         {¶ 61} For the foregoing reasons, we find Dr. Banker’s three assignments of error

not well-taken, and we affirm the January 14, 2016 judgment of the Lucas County Court

of Common Pleas granting summary judgment in favor of Mercy and MRG. The costs of

this appeal are assessed to Dr. Banker in accordance with App.R. 24.


                                                                         Judgment affirmed.




30.
                                                               WLB Radiology, LLC v.
                                                               Mercy Health N., LLC
                                                               C.A. No. L-16-1015




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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