United States District Court, M.D. Tennessee, Nashville Division
REPORT AND RECOMMENDATION
JEFFERY S. FRENSLEY, United States Magistrate Judge
matter is before the Court upon Defendants' Motion to
Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Docket No. 18.
Defendants have also filed a Supporting Memorandum of Law.
Docket No. 19. The pro se Plaintiff, Dr. Gekas, filed a
Motion for Leave to File Manually (Docket No. 20), which was
granted (Docket No. 21). Subsequently, Dr. Gekas filed his
Response in Opposition as a large amount of materials
enclosed in a binder, with additional spiral-bound materials;
these materials are not part of the electronic record and
have no docket number, but will be referred to as
“Response.” Defendants have filed a Reply. Docket
No. 23. Dr. Gekas filed a “Motion to Amend”
(Docket No. 24) that the Court has construed as a Sur-Reply
(see Docket No. 26).
Motions to Dismiss Under Fed. R. Civ. P.
United States Court of Appeals for the Sixth Circuit has
described the standard of review on a motion to dismiss as
Under Rule 8(a)(2) of the Federal Rules of Civil
Procedure, a complaint must contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Although this standard does not
require “detailed factual allegations, ” it does
require more than “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
Rather, to survive a motion to dismiss, the plaintiff must
allege facts that, if accepted as true, are sufficient
“to raise a right to relief above the speculative
level, ” id., and to “state a claim to
relief that is plausible on its face, ” id. at
570, see also Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 129 F. Ct. at 1949. And although we
must accept all well-pleaded factual allegations in the
complaint as true, we need not “accept as true a legal
conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)); see also Iqbal, 556 U.S. at 678.
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609
(6th Cir. 2009); accord Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
Gekas's Complaint is a 55-page document that ranges
freely over various situations that occurred over the course
of his professional association with Defendant HCA Health
Services of Tennessee, d/b/a/ Tristar Centennial Medical
Center (“CMC”). See Docket No. 1. Dr.
Gekas alleges that he was harmed by assorted acts of one or
more of the Defendants relating to his work at CMC, and that
misconduct on the part of some of the Defendants (and other
individuals) led to the non-renewal of his staff privileges
at CMC. A bevy of claims for relief are asserted, including
violation of the Health Care Quality Improvement Act of 1986
(“HCQIA”), 42 U.S.C. § 11101, et seq.;
violations of the United States Constitution, specifically
Amendments 14, 13, 5, 4, and “Amendment II regarding
free speech;” “numerous tort acts;” breach
of contract; “multiple violations of the Model Codes of
Legal Responsibility” by various attorneys; and
“violations of Ex Parte Standards” by
“hospital attorney Kelly Duggan, Esq.”
following allegations are taken from the Complaint, and are
accepted as true for the purposes of evaluating
Defendants' Motion to Dismiss. Dr. Gekas is a physician
who enjoyed staff privileges at CMC until February 8, 2012,
when CMC's Medical Executive Committee
(“MEC”) made the decision not to renew his
privileges for an additional two-year term, and to place him
on precautionary summary suspension (“PSS”).
Id. at 5, 9. Prior to this time, Dr. Gekas had been
working at CMC for over 14 years with 23 departments, had
engaged in approximately 42, 000 interactions with others,
and only 7 “circumstances of alleged verbal impropriety
occurred.” Id. at 7. The allegations against
Dr. Gekas included sexual harassment of nurses, intoxication
while on duty, disruptive behavior toward a physician
colleague, improper disgowning of a patient, and verbal
rudeness to a physical therapist. Id. at 7-8.
Despite these allegations, prior to February 2012, “NOT
ONCE DID THE BOARD OF DIRECTORS FIND [Dr. Gekas's]
PATIIENT CARE OR BEHAVIOR TO BE IN VIOLATION OF THE CONTRACT.
THEY RENEWED THIS CONTRACT WITHOUT ALTERATION FOR . . . 14
YEARS.” Id. at 9 (emphasis in original).
February 2012, Dr. David Reyes, the Chief of Medicine, met
with at least one other physician and a recording secretary
to discuss Dr. Gekas's application to renew his staff
privileges. Id. at 9. Based on information related
to the allegations that had been made against Dr. Gekas over
the years, including the most recent allegation of sexual
harassment of a nurse in late 2011, CMC decided not to renew
Dr. Gekas's privileges. Id. Dr. Gekas has an
explanation for each of the seven allegations against him,
and six of the seven have been resolved. Id. at 21.
Throughout this circumstance Dr. Reyes and Dr. Wilters have
tried to get away with the mental act of nothing ever gets
resolved. That concept is so absurd that it barely needs
explanation, but here goes. For complaint number 1, I have a
written document that states no further action is necessary.
For complaint number 2, I have a document that says that the
Vanderbilt evaluation was accepted and it was over. Complaint
3, involving intoxication was immediately dismissed then by
the administrator and then no mention of this was in the
follow-up document. Complaint 4, about my statement to Dr.
Jamison was resolved by document requirement of attending an
anger management course. Complaint 5 of improper disgowning
was resolved by a document stating no such action occurred.
Complaint 6 about being rude to a physical therapist was
resolved by a human resources report that this was dismissed
as not creditable. Complaint 7 was actually uninvestigated
and was never brought to a conclusion. Therefore 6 complaints
all have documents of completion and resolution.
the decision was made not to renew his privileges, Dr. Gekas
requested and received a hearing on the matter, as provided
for by CMC's by-laws. Id. at 29-32. During this
hearing, Dr. Gekas was represented by counsel and testified
on his own behalf. Id. The hearing included the
testimony of at least seven witnesses on behalf of CMC, and
three “character witnesses” who were called by
Dr. Gekas. Id. at 28, 31. Some of the ...