COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
COUNTY OF CUYAHOGA
CLIVE SINOFF, M.D. :
: JOURNAL ENTRY
OHIO PERMANENTE MEDICAL :
GROUP, INC. :
DATE OF ANNOUNCEMENT
OF DECISION: DECEMBER 27, 2001
CHARACTER OF PROCEEDING: Civil appeal from
Court of Common Pleas,
Case No. CV-433563.
JUDGMENT: AFFIRMED IN PART AND
REVERSED IN PART.
DATE OF JOURNALIZATION:
For Plaintiff-appellant: MICHAEL J. JORDAN, Esq.
SUSAN M. ZIDEK, Esq.
Walter & Haverfield, L.L.P.
1300 Terminal Tower
50 Public Square
Cleveland, Ohio 44113
MICHAEL E. SIEGEL, Esq.
20133 Farnsleigh Road
Ohio Savings Building
Cleveland, Ohio 44122-3613
TIMOTHY P. WHITFORD, Esq.
Fifner & Associates
24500 Center Ridge Road
Westlake, Ohio 44145
For Defendant-appellee: DAVID L. LEVINE, Esq.
Benesch, Friedlander, Coplan
& Aronoff, LLP
2300 BP Tower
200 Public Square
Cleveland, Ohio 44114-2378
SWEENEY, JAMES D., P.J.:
Plaintiff-appellant Clive Sinoff appeals from the trial
court's decision granting the motion of defendant-appellee Ohio
Permanente Medical Group, Inc. (OPMG) to dismiss count one 1 of
appellant's complaint. The appellant also appeals from the court's
decision to deny his motion for a preliminary injunction.
On March 26, 2001, the appellant filed a verified complaint
alleging that the appellee violated his due process rights in its
termination procedures and that the appellee breached his contract
of employment. The appellant's motion for a temporary restraining
order was granted the next day. On April 2, 2001, the appellee
filed its motion to dismiss count one of the complaint. A
preliminary injunction hearing was held on April 3, 2001 and at the
hearing the trial court granted the appellant time to respond to
the motion to dismiss. The court issued the order which is the
basis for this appeal on April 17, 2001.
In the complaint the appellant alleges that he became an
oncologist with the appellee in November 1994. He stated that he
had more than 900 patients, had the highest patient survival rate
within his department, and that he received outstanding evaluations
and the respect of his colleagues, nurses and patients. Dr. Sinoff
was the Chief of the Hematology/Oncology Department from the date
of his employment until December 15, 1999. The complaint states
1The second count of the appellant's complaint sounds in
contract and is still pending. The trial court's order stated that
there was no just reason to delay and after review of the issues,
this court finds the appeal properly before this court.
that, As an employee of OPMG, Dr. Sinoff was granted medical
staff privileges to practice at OPMG institutions.
The appellant states in the complaint that on February 23,
2000, he received his first negative annual review which was full
of unsubstantiated and erroneous conclusions. Dr. Sinoff was not
notified until approximately May 5, 2000, that a peer review of his
medical staff privileges was planned. On May 8, 2000, the
appellant was placed on administrative leave pending the outcome of
a peer review hearing which was scheduled for June 1, 2000. The
appellant did not receive the letter of notification for the
hearing until May 24, 2000. The complaint alleges that, No notice
furnished to Dr. Sinoff complied with the Health Care Quality
Improvement Act, 42 U.S.C. 11112(b).
After the peer review hearing, revocation of the appellant's
medical staff privileges and termination of his employment was
recommended by the committee and then approved by the OPMG board of
directors. This decision was appealed to the Professional
Liability Review Committee (PLRC). This hearing was conducted over
a two-month period, from November 2000 to January 2001. The hearing
panel upheld the appellant's termination of employment and clinical
privileges despite finding that:
A) At no time during its deliberations did the members of
the PLRC or the oncologist on whom they relied for expert
advice have access to the full medical record for the ten
cases that were the basis for the PLRC's recommendations.
B) The PLRC did not provide Dr. Sinoff with an adequate
opportunity to prepare for the PLRC interview on June 1,
C) At no time during the deliberations by the PLRC did
the oncologist consulted by the PLRC discuss Dr. Sinoff's
treatment decisions with Dr. Sinoff nor was Dr. Sinoff
given an opportunity to discuss these treatment decisions
with the PLRC's consulting oncologist.
D) Dr. Sinoff's referrals for hospice care were
consistent with the practices of other oncologists at
OPMG and the criticisms of the hospice referrals were not
borne out by a full exposition of the facts.
The appellant's complaint specifies that the Medical Staff
Bylaws require OPMG to bear the burden of proof of coming forth
with evidence to support its decision. Thereafter, the physician
has the burden of proving, by a preponderance of the evidence, that
the action to terminate clinical privileges was not supported by
substantial evidence. Dr. Sinoff states in the complaint that this
standard violated his due process rights because the initial
decision to revoke his privileges was made without full review of
the medical records, without an adequate opportunity to prepare for
the review, with no discussion with him regarding his treatment
decisions, and with clear mistakes regarding his hospice care
The appellant's complaint states that the action of the
appellee was arbitrary, capricious, unreasonable and in violation
of the due process requirements mandated by R.C. 3701.351(A).
Further, he states that OPMG improperly terminated his employment
in that it stemmed solely from the wrongful revocation of his
medical staff privileges.
In the first count of the complaint, Dr. Sinoff states that
R.C. 3701.351(A) `expressly provides that the governing body of
every hospital shall set standards and procedures to be applied by
the hospital and medical staff in considering and acting upon
applications . . . or professional privileges.' He also asserts
that his termination was without factual support, that he has and
will continue to suffer irreparable damage, for which there is no
adequate remedy at law, due to the appellee's arbitrary, capricious
and unreasonable actions. The complaint states that, Unless
enjoined and restrained from doing so, OPMG will report the
wrongful revocation of Dr. Sinoff's privileges to the National
Practitioner Data Bank, Ohio State Medical Board, or other public
or private agencies or persons, causing additional irreparable harm
to Dr. Sinoff.
The appellant sets forth two assignments of error.
The first assignment of error:
THE TRIAL COURT ERRED IN DISMISSING
APPELLANT'S CAUSE OF ACTION FOR DUE PROCESS
The appellant asserts that his procedural due process rights
were violated by his employer and that his employer was required
under both Ohio statutory and common law to provide him with those
rights. The appellee counters with assertions that the appellant
failed to specifically mention R.C. 1753.09(A) in the complaint;
that the appellant is not a hospital and therefore common law due
process requirements are not applicable; it is not a hospital and
therefore R.C. 3701.351 is not applicable; and, that the appellant
failed to clearly assert a claim for relief under the federal
Health Care Quality Improvement Act (HCQIA).
The Ohio Supreme Court has noted the necessity of construing,
under Civ.R. 12(B)(6), all inferences in the plaintiff's favor.
See Wampler v. Higgins (2001), 93 Ohio St.3d 111, citing to Vail v.
Plain Dealer Publishing Co. (1995), 72 Ohio St.3d 279. When
reviewing a motion to dismiss pursuant to Civ.R. 12(B)(6), the
court is required to view all of the allegations of the complaint
as true. Butler v. Cuyahoga Cty. Dept. Of Human Services (2001),
92 Ohio St. 3d 354. See also Taylor v. City of London (2000), 88
Ohio St.3d 137, which states that it is clear, as a matter of law,
that the allegations of appellant's complaint must be accepted as
true. See also Mitchell v. Lawson Milk Co. (1988), 40 Ohio St.3d
190. Further, in O'Brien v. Univ. Community Tenants Union, Inc.
(1975), 42 Ohio St.2d 242, the Ohio Supreme Court found that it
must appear beyond doubt from the complaint that the plaintiff can
prove no set of facts entitling him to recovery. The plaintiff
must be afforded all reasonable inferences possibly derived from
the allegations in the complaint. Desenco, Inc. v. Akron (1999),
84 Ohio St.3d 535.
In York v. Ohio State Highway Patrol (1991), 60 Ohio St.3d
143, the court reiterated the above standard and gave the following
This standard for granting a motion to dismiss is in
accord with the notice pleading regimen set up by the
Federal Rules of Civil Procedure and incorporated into
the Ohio Rules of Civil Procedure. Under these rules, a
plaintiff is not required to prove his or her case at the
pleading stage. Very often, the evidence necessary for a
plaintiff to prevail is not obtained until the plaintiff
is able to discover materials in the defendant's
possession. If the plaintiff were required to prove his
or her case in the complaint, many valid claims would be
dismissed because of the plaintiff's lack of access to
relevant evidence. Consequently, as long as there is a
set of facts, consistent with the plaintiff's complaint,
which would allow the plaintiff to recover, the court may
not grant a defendant's motion to dismiss. (Boldface type
On appeal, the appellant asserts that the appellee failed to
afford him his due process rights pursuant to R.C. 1753.09(A), R.C.
3701.351(A), Ohio common law, and 42 U.S.C. 11112(b), the HCQIA.
Prior to discussing the individual statutes, this court is
confronted with the question of defining the exact nature of the
OPMG entity. This is an issue not addressed in the complaint, and
thus the appellee asserts the complaint must fail in its entirety.
This view is too simplistic. Based upon the Ohio Supreme Court's
holding in York, supra, the appellant was not required to specify
each and every detail of every possible claim. This court must
analyze whether or not there is a set of facts which would allow
the appellant to recover.
In Wall v. Ohio Permanente Medical Group (1997), 119 Ohio
App.3d 654, this court concluded that OPMG is a professional
corporation which provides services under contract to the Kaiser
Foundation Health Plan, a non-profit HMO. This court found that
OPMG served as a peer review committee of the HMO. Thus, OPMG was
given the benefit of the privilege given to peer review committees
of an HMO under R.C. 2305.25(F). In applying Wall to the case sub
judice, it is permissible to consider OPMG equivalent to Kaiser,
the HMO to which the appellee provides services.
Turning next to the statutes cited by the appellant, the
legislature has made the following pertinent determinations in R.C.
(A) Except as provided in division (D) of this
section, prior to terminating the participation of
a provider on the basis of the participating
provider's failure to meet the health insuring
corporation's standards for quality or utilization
in the delivery of health care services, a health
insuring corporation shall give the participating
provider notice of the reason or reasons for its
decision to terminate the provider's participation
and an opportunity to take corrective action. The
health insuring corporation shall develop a
performance improvement plan in conjunction with
the participating provider. If after being afforded
the opportunity to comply with the performance
improvement plan, the participating provider fails
to do so, the health insuring corporation may
terminate the participation of the provider.
(B)(1) A participating provider whose participation
has been terminated under division (A) of this
section may appeal the termination to the
appropriate medical director of the health insuring
corporation. The medical director shall give the
participating provider an opportunity to discuss
with the medical director the reason or reasons for
(2) If a satisfactory resolution of a participating
provider's appeal cannot be reached under division
(B)(1) of this section, the participating provider
may appeal the termination to a panel composed of
participating providers who have comparable or
higher levels of education and training than the
participating provider making the appeal. A
representative of the participating provider's
specialty shall be a member of the panel, if
possible. This panel shall hold a hearing, and
shall render its recommendation in the appeal
within thirty days after holding the hearing. The
recommendation shall be presented to the medical
director and to the participating provider.
(3) The medical director shall review and consider the
panel's recommendation before making a decision.
The decision rendered by the medical director shall
(C) A provider's status as a participating provider
shall remain in effect during the appeal process
set forth in division (B) of this section unless
the termination was based on any of the reasons
listed in division (D) of this section.
(D) Notwithstanding division (A) of this section, a
provider's participation may be immediately
terminated if the participating provider's conduct
presents an imminent risk of harm to an enrollee or
enrollees; or if there has occurred unacceptable
quality of care, fraud, patient abuse, loss of
clinical privileges, loss of professional liability
coverage, incompetence, or loss of authority to
practice in the participating provider's field; or
if a governmental action has impaired the
participating provider's ability to practice.
Clearly, R.C. 1753.09(A) provides that a health insuring
corporation must give a doctor notice of its reasons for
termination and an opportunity to take corrective action. R.C.
1753.09(D), however, provides that there are certain instances in
which the opportunity to take corrective action need not be given,
i.e., where the doctor resents an imminent risk of harm to
patients. The question before this court is, whether or not the
appellant's complaint stated a claim pursuant to R.C. 1753.09.
While the statute is not directly mentioned in the complaint, this
does not end our inquiry. See York, supra. Given that the Wall
Court found OPMG to be an HMO, this court must find that the
appellant adequately stated a claim pursuant to R.C. 1753.09 and
that the trial court erred in granting the appellee's motion to
dismiss the complaint on this statute.
R.C. 3701.351 sets forth the standards and procedures for
staff membership and professional privileges. R.C. 3701.351(A)
(A) The governing body of every hospital shall set
standards and procedures to be applied by the hospital
and its medical staff in considering and acting upon
applications for staff membership or professional
privileges. These standards and procedures shall be
available for public inspection.
The very language used by the legislature makes the language
of the statute applicable only to hospitals. In Wall, supra, this
court found the appellee to be a professional corporation providing
services to Kaiser, an HMO. There is no indication in the
complaint that the appellee has acted as a hospital, and based on
the binding precedent in Wall, supra, this court will not read such
an assumption into the complaint. The same logic applies to the
appellant's claims under Ohio common law. The appellant has not
cited one case in which an HMO or professional group was found to
have breached a common law right to due process.
Finally, it has been held that the HCQIA, 42 U.S.C. 11112(b),
does not afford a physician a private right of action. See Wayne
v. Genesis Medical Center (8th Cir. 1998), 140 F.3d 1145, where the
court joined the Tenth and Eleventh Circuits in concluding that the
HCQIA does not explicitly or implicitly afford aggrieved physicians
a cause of action when a hospital fails to follow the HCQIA's
prescribed peer review procedures. See Hancock v. Blue Cross-Blue
Shield, Inc. (10th Cir. 1994), 21 F.3d 373, 374-375, holding that
the HCQIA does not explicitly or implicitly create a private cause
of action for physicians subjected to peer review and that Congress
did not intend to create cause of action for benefit of physicians.
See also Bok v. Mutual Assurance, Inc. (11th Cir. 1997) (per
curiam), 119 F.3d 927, where the court agreed with Hancock and held
that HCQIA does not create cause of action for physicians. In
accord, Brown v. Medical College of Ohio (N.D. Ohio 1999), 79 F.
Supp. 2d 840.
The appellant's first assignment of error is overruled as to
claims under the Ohio common law, the HCQIA, and R.C. 3701.351.
The appellant's first assignment of error is well taken as to
claims made pursuant to R.C. 1753.09.
The second assignment of error:
THE TRIAL COURT ERRED IN DENYING APPELLANT'S
MOTION FOR PRELIMINARY INJUNCTION.
The appellant argues that the trial court should have granted
his motion for a preliminary injunction and enjoined the appellee
from reporting its decision to the National Practioner's Data Bank.
The issue whether to grant or deny an injunction is a matter
solely within the discretion of the trial court and a reviewing
court will not disturb the judgment of the trial court in the
absence of a clear abuse of discretion. Danis Clarkco Landfill Co.
v. Clark County Solid Waste Management Dist., No. 94-1047 (1995),
73 Ohio St.3d 590, syllabus three. In reviewing a preliminary
injunction, this court, in Cavanaugh Building Corp. v. Bd. of
Cuyahoga Cty. Commissioners (Jan. 27, 2000), Cuyahoga App.
No.75607, unreported, found the standard of review to be one of
abuse of discretion and noted that the term abuse of discretion
connotes more than an error of law or judgment; it implies an
unreasonable, arbitrary or unconscionable attitude on the part of
the trial court. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217.
When applying the abuse of discretion standard, a reviewing court
is not free merely to substitute its judgment for that of the trial
court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, citing Berk v.
Matthews (1990), 53 Ohio St.3d 161.
This court has also found that a preliminary injunction is an
extraordinaryremedy and, as such, the appellant has a substantial
burden to meet in order to be entitled to a preliminary injunction.
Ormond v. Solon (Oct. 18, 2001), Cuyahoga App. No. 79223,
unreported. The party seeking the preliminary injunction must
establish a right to the preliminary injunction by showing clear
and convincing evidence of each element of the claim. Vanguard
Transp. Sys., Inc. v. Edwards Transfer & Storage Co., Gen.
Commodities Div.(1996), 109 Ohio App.3d 786, citing to Mead Corp.,
Diconix, Inc., Successor v. Lane (1988), 54 Ohio App.3d 59.
In ruling on a motion for a preliminary injunction, the court
must consider whether: (1) the movant has shown a strong or
substantial likelihood or probability of success on the merits; (2)
the movant has shown irreparable injury; (3) the preliminary
injunction could harm third parties; and (4) the public interest
would be served by issuing the preliminary injunction. Ormond,
supra,citing to Gobel v. Laing (1967), 12 Ohio App.2d 93; Frisch's
Restaurant, Inc. v. Shoney's, Inc. (1985), 759 F.2d 1261, 1263; and
Goodall v. Crofton (1877), 33 Ohio St. 271.
In the matter at hand there is no compelling evidence in the
record that the trial court abused its discretion in denying the
appellant's motion for injunctive relief. The trial court record
reflects that the trial judge held a hearing on the appellant's
motion for injunctive relief. However, the record on appeal is
devoid of any transcript of this hearing. The Ohio Supreme Court
was recently faced with just such a predicament and found that
where either no transcript was made, or it has not been submitted
as a part of the record to the appellate court, an appellate court
must presume the regularity of the trial court's proceedings and
judgment. National City Bank v. Beyer (2000), 89 Ohio St.3d 152,
citing to Wells v. Spirit Fabricating, Ltd. (1996), 113 Ohio App.3d
The appellant's second assignment of error is overruled.
Judgment affirmed in part and reversed in part.
This cause is affirmed in part and reversed in part.
The court finds there were reasonable grounds for this appeal.
It is, therefore, considered that said appellant(s) and appellee(s)
each pay one-half of the costs herein.
It is ordered that a special mandate be sent to said court to
carry this judgment into execution.
A certified copy of this entry shall constitute the mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., J., CONCURS;
COLLEEN CONWAY COONEY, J., DISSENTS
WITH DISSENTING OPINION ATTACHED.
JAMES D. SWEENEY
N.B. This entry is an announcement of the court's decision. See
App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will
be journalized and will become the judgment and order of the court
pursuant to App.R. 22(E) unless a motion for reconsideration with
supporting brief, per App.R. 26(A), is filed within ten (10) days
of the announcement of the court's decision. The time period for
review by the Supreme Court of Ohio shall begin to run upon the
journalization of this court's announcement of decision by the
clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section
COURT OF APPEALS OF OHIO EIGHTH DISTRICT
COUNTY OF CUYAHOGA
CLIVE SINOFF, M.D. :
Plaintiff-Appellant : D I S S E N T I N G
vs. : O P I N I O N
OHIO PERMANENTE MEDICAL :
GROUP, INC. :
DATE: DECEMBER 27, 2001
COLLEEN CONWAY COONEY, J., DISSENTING:
I must respectfully dissent from the majority's disposition of
I disagree with the majority's conclusion that R.C. 1753.09
applies to OPMG. R.C. 1753.09 only applies to a health insuring
corporation, which is defined in R.C. 1751.01(N) as follows:
Health insuring corporation means a
corporation, as defined in division (G) of
this section, that, pursuant to a policy,
contract, certificate, or agreement, pays for,
reimburses, or provides, delivers, arranges
for, or otherwise makes available, basic
health care services, supplemental health care
services, or specialty health care services,
or a combination of basic health care services
or specialty health care services, through
either an open panel plan or a closed panel
OPMG, a corporation which contracts with Kaiser Permanente, an
HMO, to provide services at area hospitals, simply does not fit
this definition. Sinoff concedes that Kaiser is a health insuring
corporation. (Appellant's Brief at 29-30).
The majority maintains that OPMG is an HMO, based on this
court's holding in Wall v. Ohio Permanente Med. Group, Ins. (1997),
119 Ohio App.3d 654. However, nowhere in Wall did this court make
this finding. Wall only found that OPMG served as a peer review
committee `of' an HMO, not that it is the equivalent of an HMO.
Id. at 663-664.
Because I find that OPMG does not constitute a health
insuring corporation, either under case or statutory law, I
believe that R.C. 1753.09 does not apply to Sinoff's claims. I
would, therefore, affirm the trial court's judgment.