In Steven Clinch v. Heartland Health Regional Medical Center, Midwestern Management Inc., Lowell C. Kruse and Michael E. Nellestein, WD 64853 (Mo. App. 2006), the Missouri Court of Appeals revealed what appeared to be a classical political back stabbing of one physician by another at Heartland Health and concluded that statements made by Dr. Nellestein to induce Midwestern Management to terminate its “at will” contract with Dr. Clinch to be Heartland’s medical director of cardiac surgery stated a cause of action that could not be dismissed on summary judgment. Midwestern had a contract to provide physician services to Heartland. Dr. Nellestein was director of Heartland’s vascular surgery and expressed his concerns to Heartland’s management that Heartland’s heart program was not moving forward effectively.
During one of Nellestein’s leaves, Dr. Clinch performed 17 surgeries. When he returned Dr. Nellestein reviewed records of Dr. Clinch’s surgeries, but did not try to determine causes for any complications. Nellestein recorded that Dr. Clinch had a “35% major complication rate,” a figure that was not contested by Dr. Clinch. Nellestein passed the information on to Heartland’s chief medical officer, but did not give a written analysis or otherwise complain. Later Nellestein advised the hospital that he was “not content” at Heartland. He indicated concerns that the heart program was not moving forward, noting problems with infection rates, referrals, volume and results, and particularly vague dissatisfaction with Dr. Clinch’s performance. Heartland later offered Clinch’s position to Nellestein. A hospital administrator ordered a former infectious disease nurse manager at the hospital to prepare a report of Dr. Clinch’s infection rates. She testified that she was advised that Heartland wanted to terminate its contract with Dr. Clinch and use his infection rates as the reason. The review found no problems with Clinch’s morbidity, mortality or infection rates. Heartland signed a contract with Nellestein as medical director of the cardiac unit and employment and the next day terminated Dr. Clinch “without cause.”
Heartland expressed a willingness for Dr. Clinch to remain on staff but would not release him from a one year covenant not to compete. When the Heartland officials dismissed that Dr. Clinch’s privileges would extend beyond the expiration of his covenant not to compete they developed an exclusive contract for cardiac services at Heartland. Dr. Clinch sued for, among other things, tortious interference with his contract and/or business relationship with Heartland and for an anti-trust violation. All of his claims were dismissed on summary judgment in the trial court. The Missouri Court of Appeals affirmed the summary judgment as to the anti-trust violation because Dr. Clinch failed to show Heartland’s decision had an impact on price, quality or quantity of service in the relevant geographic market. The Court of Appeals reinstated Clinch’s tortuous interference claim.
The elements of tortious interference are 1) the existence if a valid business relationship (contract or otherwise); 2) an awareness by the wrongdoer of the relationship; 3) an intentional interference with the relationship inducing the termination; 4) the lack of justification by the wrongdoer; 5) damages suffered as a result of the wrongdoer’s action. Nellestein argued that since Clinch’s contract could be terminated at will Midwestern did not breach its contract with Clinch when it terminated him. The Court held that until one of the contracting parties terminates the contract, the parties are in a subsisting relationship that presumably will continue and is value to the Plaintiff.
The pertinent issue is whether or not Midwestern Health Management would have persisted in the contractual relationship with Clinch but for Nellestein’s conduct.
Nellestein also claimed he was entitled to judgment because he did not use improper means. The Court noted that a party has a greater latitude generally to interfere with a “business expectancy” rather than an existing, ongoing contractual relationship.
A defendant’s interference can be justified on numerous grounds, and clear rules as to what constitutes justification do not exist. But one rule is clear; Regardless of whether plaintiff has a contract or only an expectancy, a defendant’s interference is not justified if he or she uses improper means.
Clinch argued that Nellestein used improper means to effect the termination of his contract, namely misrepresentations, and defamation. Nellestein countered that he was only expressing his opinion, not of fact, and that could not be a basis for a determination of improper means. The court responded that “opinions, however, become facts if they can be verified.”
Thus, if Nellestein communicated this figure (35% complication rate) to Heartland Regional’s administrators without also stating that his analysis was incomplete or that he had not isolated the causes, the administrators could reasonably infer that Nellestein was accusing Clinch of causing the complications. This is particularly true in light of Nellestein’s suggesting that an investigation occur. A jury could infer that Nellestein misled Heartland . . . by providing a half truth and did so intentionally to secure the hospital’s termination of its contract with Clinch.
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