United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Chief United States District Judge.
matter is before the Court on the Defendant's Motion for
Summary Judgment, ECF No. 23. For the reasons stated below,
the Motion will be granted and this action will be dismissed,
following facts are those stated in the parties' briefs,
supported by pinpoint citations to evidence in the record,
and admitted, or not properly resisted, by the opposing party
as required by NECivR 56.1 and Federal Rule of Civil Procedure
Saint Francis Medical Center (Saint Francis) is a hospital in
Grand Island, Nebraska. Grand Island Radiology Associates,
P.C. (GIRA) is a radiology medical practice in Grand Island,
and it conducts radiology services at Saint Francis. GIRA
hired Dr. Antaki as a radiologist in March 2008. As a
radiologist for GIRA, Dr. Antaki-and its other
radiologists-worked at Saint Francis and at an off-site
imaging center in Grand Island. The group's radiologists
also read studies for other medical providers in the region.
Radiology Services Agreement
Francis and GIRA entered into an Exclusive Radiology Services
Agreement (the “Services Agreement”), dated
September 29, 2006. See Services Agreement, ECF No.
25-3, Page ID 203-29. Under the terms of the Services
Agreement, GIRA was the exclusive provider of radiology
services and radiologists for Saint Francis at all times
relevant to this matter. GIRA agreed to provide a medical
director for Saint Francis's radiology department, who
would oversee and work with Saint Francis's non-physician
radiology department staff. In turn, Saint Francis agreed to
permit radiology staff to assist and serve GIRA's
radiologists while working in the radiology department.
the Services Agreement, GIRA agreed to comply with the
Catholic Health Initiatives (CHI) Standards of Conduct and
agreed that those standards were applicable to each Covering
Physician. Services Agreement at 8-9, § 2.8, ECF No.
25-3, Page ID 210-11. Each physician at GIRA, including Dr.
Antaki, signed an Acknowledgement and Certification
(Acknowledgement), attached as Exhibit 1 to the Services
Agreement. As part of the Acknowledgement, each physician
agreed to the CHI Standards of Conduct. See ECF No.
25-3, Page ID 231. The CHI Standards of Conduct were
identical to the Saint Francis Medical Center Medical Staff
Professional Conduct Standards (Conduct Standards). Each
radiologist with privileges at Saint Francis, including Dr.
Antaki, agreed to uphold those standards. Under the Conduct
Standards, Dr. Antaki and the other radiologists agreed to
“[t]reat colleagues, consultants, nurses, clinical and
other support staff with respect as team members working to
care for our mutual patients. Handle disagreements civilly,
professionally and through established mechanisms. Seek to
understand where processes may have failed.” ECF No.
25-3, Page ID 284.
§ 2.8 of the Agreement, if Saint Francis determined that
those standards were violated by GIRA or any of its
physicians, Saint Francis had the right to terminate the
Services Agreement for cause. ECF No. 25-3, Page ID 211. The
Services Agreement stated that if Saint Francis, in good
faith, determined that a physician breached his obligations
to comply with the Standards of Conduct, then GIRA
“shall, upon notice from Hospital, immediately exclude
the Covering Physician from the performance of any services
required by this Agreement.” Id.
Dr. Antaki's Behavior at Saint Francis
after Dr. Antaki was hired, his behavior became a concern for
GIRA. Dr. Daniel Novinski, shareholder and president of GIRA,
stated that Dr. Antaki did well during his first year, but
“had several incidents where he had problems with some
of the techs, and complaints. And so after six months, we sat
down with him and explained that he's got to work on how
he interacts with techs and clinicians.” Novinski Dep.
23:21-24:1, ECF No. 25-1. Because of Dr. Antaki's issues, the
other radiologists at GIRA required him to undergo anger
management therapy in Grand Island, which he completed along
with online programming for anger management. Antaki Dep.
131:12-21, 132:19- 25, 138:23-25, 143:1-6, ECF No. 25-7.
Dr. Antaki completed anger management, some of his behavior
problems continued. For example, one of GIRA's
radiologists, Dr. David Hadford, stated “[I]f George
[Antaki] was on rotation and I was on the other one, all the
techs would be coming to me . . . . they didn't want to
interact with Dr. Antaki.” Hadford Dep. 13:7-15, ECF
No. 25-15. Dr. Hadford explained this was because “Dr.
Antaki would yell at them.” Id. 13:17, 26:24).
Another radiologist, Dr. Cody Evans, testified that he
“was told, from technologists, [that Dr. Antaki] was
difficult to work with; that he was - not all of them, but he
was sometimes rude, and I had heard of two potential, I
guess, physical touching of female technologists.”
Evans Dep. 13:18-22, Page ID 25-16.
Coe, an x-ray student and, after graduation, a technologist
at Saint Francis, had several interactions with Dr. Antaki.
For example, as an x-ray student at Saint Francis, she
presented information about a patient to Dr. Antaki. Dr.
Antaki yelled at her because she did not tell him one of the
patient's lab values. She stated in her affidavit that
she was just starting and learning and did not know that
would have been important to Dr. Antaki. She was thereafter
wary of interacting with him. Coe Aff. ¶ 7, 25-17. Coe
asserted that her interactions with Dr. Antaki were always
negative. Id. ¶ 8. During one occasion, as Coe
was leaving Saint Francis after a shift, Dr. Antaki
confronted her in the hallway about a study she had done.
Id. ¶ 10. She apologized but he followed her,
continuing to belittle and criticize her. Id. Coe
reported the incident to Ron Neseth, Saint Francis's
radiology department imaging manager. Id.
addition to verbal complaints to Neseth about Dr.
Antaki's behavior, Coe also reported the abuse to her
direct supervisor in the CT/MRI department, Jodi Nielsen. Coe
Aff. ¶¶ 10, 14. Nielsen personally observed Dr.
Antaki's conduct and was also subjected to it herself.
Nielsen Dep. 24:20-25, 25:12-20, 26:2-24, ECF No. 25-18.
Other staff supervisors, such as Ultrasound Supervisor Sheri
Hitchler, also received complaints about Dr. Antaki's
behavior. Hitchler Dep. 21:2-5, ECF No. 25-20. Hitchler
recalled frequent complaints from her staff of Dr. Antaki
yelling at them. Id. 15:1-16:1. Based on his
treatment of Coe, Nielsen, and others, GIRA radiologists
instructed Dr. Antaki not to communicate directly with Coe or
Nielsen but instead to take any of his concerns to Neseth.
Antaki Dep. 148:21-25, ECF No. 25-7.
radiology group and Neseth frequently discussed the
staff's complaints about Dr. Antaki, often at group
meetings where Dr. Antaki was present. Neseth Dep.
57:15-58:13, ECF No. 25-19. Dr. Antaki reacted to those
issues at the meetings by becoming “very loud.”
Id. 58:14-23. Neseth testified that he could not
schedule Dr. Antaki for Mondays if he had worked all weekend
on call because he would have such a bad temper. Id.
51:8-13. Dr. Antaki's interactions with staff were not
typical of other physicians' interactions. Id.
50:12-14. Neseth had to make special scheduling
accommodations to limit staff exposure to Dr. Antaki.
also noticed that although Dr. Antaki would frequently
complain about staff work product, other radiologists found
no bases for the complaints. For example, Neseth testified:
Usually after Dr. Antaki would make the complaint [about a
technologist's image], we would pull up the images on the
computers and start going through them.
. . . . Dr. Stevens . . . was in charge of CT/MR [and] I
would usually go to him and say, would you pull up the study
and tell me what you think, and leave it at that. Then he
could come back and say, I think it's fine. I think it
was the right call and that. And I would ask him about image
quality, and he'd say, no, it's fine.
Id. 45:6-17. Neseth testified that this happened
“beyond occasionally.” Id. 45:6-46:24.
recounted that “typically, after the weekend, I would
get calls from the radiology directors from the other towns
that Dr. Antaki was upset about one thing or another, maybe
not following protocol, maybe image quality, but, typically,
it involved him raising his voice and yelling.”
Id. 51:19-25. Neseth recalled specific incidents of
Dr. Antaki becoming “verbally abusive” and
raising his voice enough that multiple people would have
heard. Id. 51:19-52:14. Neseth testified that
“Dr. Antaki routinely was upset, yelling, would come to
me and say, you need to fire these people, and/or threaten
that he would fire these people, and that's not normal
behavior.” Id. 67:18-68:7.
October 2013, Neseth became aware of a call from Dr. Antaki
to a nurse on the floor of the radiology department. Neseth
testified that Dr. Antaki yelled at the nurse over the phone,
“and that the nurse took the opportunity to hold the
phone out, away from her ear, so other people could witness
his yelling at her, for, basically, inappropriately ordering
an exam that did not need to be done during the
weekend.” Id. 70:13-19. The incident was
reported to Dr. Michael Hein, Saint Francis's chief
medical officer, and some of the other radiologists at GIRA.
Antaki Dep. 179:3-12, ECF No. 25-7; Novinski Dep. 120:6-7,
ECF No. 25-1.
January 7, 2014, Louise Burson, an employee in the
scheduling/patient access department at Saint Francis,
received a phone call from Dr. Antaki who was upset about how
a procedure was scheduled and he demanded that a scheduler be
written up for what Dr. Antaki perceived as an error. Burson
Aff. ¶¶ 7-8; ECF No. 25-21. Burson recalled that
Dr. Antaki yelled and cursed during the call, and accused the
schedulers of being “incompetent and dumb.”
Id. ¶ 6. Dr. Antaki yelled so loudly that
Burson had to pull the phone from her ear and other
schedulers in the room with her could hear Dr. Antaki's
yelling. Id. ¶ 9. Burson discussed the call
with her supervisor, Anna Novotny, and then emailed a
description of the encounter to Novotny. Id. ¶
10; Ex. A, ECF No. 25-21, Page ID 526. Novotny forwarded
Burson's email to Dale Hartwig, Saint Francis's Vice
President of Ancillary Services; Jackie Huldt, director of
radiology; Kara Urkoski, Novotny's direct supervisor;
Neseth; and Dr. Novinski. Novotny Aff. ¶ 5, ECF No.
25-22, Page ID 530-31.
The McElligott Letter
Burson's encounter and Novotny's report of it, on
approximately January 8, 2014, Saint Francis's leadership
called a meeting with GIRA's leaders to discuss Dr.
Antaki's conduct. Novinski Dep. 50:15-20, 51:3-8,
67:24-68:7, ECF No. 25-1. Dr. Novinski and Dr. Marsh, another
shareholder at GIRA, attended the meeting with the
hospital's president, Daniel McElligott. Id.
50:15-20, 51:3-8, 67:24-68:7. Hartwig and Dr. Hein also
attended the meeting. Id. 61:5-7; Hartwig Dep.
32:17-33:7, ECF No. 25-2. During the meeting, Dr. Hein
expressed concern about Dr. Antaki's anger, opining that
Dr. Antaki was a disruptive physician, and that he might be a
good radiologist but a bad physician if he was not working
well with staff. Novinski Dep. 62:11-17, ECF No. 25-1.
the hospital's leadership expressed their concerns and
demanded improvement in his behavior, no one demanded that
Dr. Antaki be fired. Id. 63:1-13. Hartwig explained
at the meeting that he “didn't want [Dr. Antaki]
subjecting the staff, patients, and our organization to his
behavior anymore.” Hartwig Dep. 35:19-21, ECF No. 25-2.
Saint Francis's leaders noted previous incidents of Dr.
Antaki's conflicts with staff. Marsh Dep. 19:2-7, ECF No.
25-14. McElligott informed Dr. Marsh and Dr. Novinski that
the hospital could not have disruptive physicians.
Id. 19:20-22. Dr. Marsh and Dr. Novinski asked Dr.
Hein and McElligott ...