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Gekas v. HCA Health Services of Tennessee, Inc.

United States District Court, M.D. Tennessee, Nashville Division

January 25, 2018


          Crenshaw, Judge


          JEFFERY S. FRENSLEY, United States Magistrate Judge

         This 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).

         A. Motions to Dismiss Under Fed. R. Civ. P.

         The United States Court of Appeals for the Sixth Circuit has described the standard of review on a motion to dismiss as follows:

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).

         B. Factual Allegations

         Dr. 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.” Id.

         The 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).

         In 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. Specifically:

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.


         After 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 ...

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