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IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE

FILED
JOHN D. CRABTREE, M.D. Plaintiff/Appellant, v. DAVID T. DODD, M.D., Defendant/Appellee. ) ) ) ) ) ) ) ) ) August 17, 1999 Putnam Chancery No. 94-50 Cecil Crowson, Jr. Appellate Court Clerk Appeal No. 01A01-9807-CH-00370

APPEAL FROM THE CHANCERY COURT OF PUTNAM COUNTY AT COOKEVILLE, TENNESSEE

THE HONORABLE JOHN ROLLINS, CHANCELLOR

For the Plaintiff/Appellant: Steven C. Douse Nashville, Tennessee

For the Defendant/Appellee: Noel F. Stahl Joseph R. Wheeler Nashville, Tennessee

AFFIRMED

HOLLY KIRBY LILLARD, J.

CONCURS: W. FRANK CRAWFORD, P.J., W.S. DAVID R. FARMER, J.

OPINION

This case involves an impaired physician. The plaintiff physician sued the medical director of the Tennessee Medical Association's Impaired Physician Program for allegedly revealing confidential information to the plaintiff's medical malpractice insurance carrier about the plaintiff's alleged alcohol dependency, causing the non-renewal of his insurance policy. The trial court granted summary judgment in favor of the defendant. We affirm. The Tennessee Medical Association ("TMA") offers assistance to physicians with substance abuse problems through its Impaired Physicians Program ("Impaired Physicians Program") and its Impaired Physicians Peer Review Committee ("Peer Review Committee").1 The Peer Review Committee makes the policies of the Impaired Physicians Program and is responsible for monitoring the rehabilitation process for physicians with chemical dependency or mental illness. The Peer Review Committee is comprised of several physicians who conduct the medical peer reviews. When a physician is referred to the Impaired Physicians Program and agrees to participate in the treatment program, the Peer Review Committee will advocate for the physician before local peer review committees, hospital committees, insurance carriers, and licensing authorities. Defendant/Appellee, David Dodd, M.D. ("Dr. Dodd"), is a physician licensed by the State of Tennessee and the medical director of the Impaired Physicians Program. Dr. Dodd is not a member of the Peer Review Committee, but reports directly to the Committee in his role as medical director of the Impaired Physicians Program. To assess and interview physicians referred to the Impaired Physicians Program, Dr. Dodd may meet with the individual physicians. The meetings are to determine the physician's need for professional evaluation by substance abuse or mental illness facilities. It is undisputed on appeal that a physician-patient relationship is not formed during these initial assessments. Physicians who are candidates for independent professional evaluation are offered options and recommendations on health care facilities for treatment. Neither Dr. Dodd nor the Peer Review

The TMA created the Tennessee Medical Foundation, which assumed administration of the Impaired Physicians Program in April, 1992. Prior to that time, and at the time of the events in this case, the Impaired Physicians Program was administered by the TMA.

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Committee provide diagnosis or treatment. The physician must continue treatment and participation in the Impaired Physicians Program in order for the Peer Review Committee to advocate for the physician. This is sometimes referred to as "advocacy status." Plaintiff/Appellant, John Crabtree, M.D. ("Dr. Crabtree"), is a physician licensed by the State of Tennessee. During the events at issue in this case, Dr. Crabtree was a general surgeon in Putnam County and had physician privileges at Cookeville General Hospital. Dr. Crabtree had medical malpractice insurance through State Volunteer Mutual Insurance Company ("State Volunteer"), a medical malpractice insurance company. State Volunteer was founded by physicians in Tennessee to provide medical malpractice coverage. Dr. Crabtree was an original shareholder, and had been insured by State Volunteer from the date of its formation in 1976. From 1976 to 1988, Dr. Crabtree was not required to re-apply or update information in his file in order to renew his insurance with State Volunteer. In 1988, State Volunteer began seeking periodic updates of its insured physicians. In 1989 and early 1990, Dr. Crabtree was arrested twice within a six-month period, once for public drunkenness and once for driving under the influence. On February 7, 1990, Cookeville General Hospital requested that the Impaired Physicians Program evaluate Dr. Crabtree for alcohol impairment. Pursuant to the request by Cookeville General Hospital, Dr. Dodd contacted Dr. Crabtree in February, 1990 about evaluation for possible treatment as an impaired physician. Dr. Crabtree rejected participation in the Impaired Physicians Program because he believed that he was already receiving adequate professional assistance. Dr. Crabtree alleges that this angered Dr. Dodd, and that Dr. Dodd threatened Dr. Crabtree with the loss of his malpractice insurance and his medical license if he refused to participate. In July 1990, Dr. Crabtree was again arrested for driving under the influence. After this arrest, Cookeville General Hospital notified Dr. Crabtree that it would take formal action against him. State Volunteer notified Dr. Crabtree that it was reviewing his insurability. In August 1990, Dr. Crabtree took a leave of absence for treatment for alcohol dependency and entered a treatment program in Georgia. Dr. Crabtree was dissatisfied with this program,

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criticizing it as "superficial." He left the Georgia facility after four days, contrary to the physicians' recommendation of further treatment. Once again, Cookeville General Hospital threatened to suspend Dr. Crabtree's hospital privileges. On August 22, 1990, Dr. Crabtree entered the Cumberland Heights Drug and Alcohol Treatment Center in Nashville. Dr. Crabtree completed the inpatient program at Cumberland Heights and was discharged on September 19, 1990. Cookeville General Hospital wrote Dr. Dodd in September 1990, informing him that Peer Review Committee advocacy was a condition of his resuming his practice at the Hospital. The Hospital requested that Dr. Dodd monitor Dr. Crabtree's treatment. In September 1990, Dr. Dodd met with Dr. Crabtree, as well as Dr. Crabtree's attorney, Larry Hart, and Dr. Crabtree's counselor, George Allen. At the meeting, Dr. Crabtree agreed to continue therapy at Cumberland Heights for thirty days in return for the Impaired Physicians Program's advocacy. Dr. Crabtree also signed a Therapy Agreement providing that the Peer Review Committee would advocate for Dr. Crabtree in matters before the Board of Medical Examiners, for his hospital privileges at Cookeville General Hospital, and for Dr. Crabtree's continued medical malpractice insurance coverage. The Agreement stated that, in return for Dr. Crabtree's continued treatment, the Program would: . . . advocate for Dr. Crabtree in the following, but not limited to, areas: 1. Shall contact [State Volunteer] regarding Dr. Crabtree's malpractice insurance and have a hold placed on action to cancel the insurance as well as ensuring that the company provides tail coverage while he is not practicing. 2. Advocate for Dr. Crabtree on any matter that may come before the Board of Medical Examiners. 3. Advocate on Dr. Crabtree's behalf should any adverse action be initiated against his privileges at Cookeville General Hospital. Despite the language of the Agreement, Dr. Crabtree stated in his affidavit before the trial court that "[t]here was no discussion of advocacy before either [State Volunteer] or the State Board of Medical Examiners, and I did not understand these to be part of the agreement." In addition, Dr. Crabtree stated, "I did not read [the Agreement] carefully and did not realize that it authorized Dr. Dodd to contact [State Volunteer] and advocate for my continued coverage, thereby representing to [State Volunteer] that I was indeed an impaired physician and a high risk."

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In November, 1990, after Dr. Crabtree successfully completed two months of therapy, Dr. Dodd wrote Cookeville General Hospital, outlining the conditions of advocacy and recommending that Dr. Crabtree's hospital privileges be reinstated so long as he complied with the conditions. The Agreement required Dr. Crabtree to participate in an aftercare program and monthly monitoring meetings with Dr. Dodd. These terms were incorporated in a letter from Cookeville General Hospital to Dr. Crabtree, signed by Dr. Crabtree in December 1990, providing that his hospital privileges would be reinstated if he complied with the terms of the letter. On December 11, 1990, Dr. Crabtree's hospital privileges at Cookeville General Hospital were restored. Dr. Crabtree asserts that Dr. Dodd met with Hospital representatives in November 1990 without notifying Dr. Crabtree in advance of the meeting. Dr. Crabtree states that when Dr. Dodd came to his office to tell him that the Hospital had agreed to restore his privileges, Dr. Dodd told Dr. Crabtree's staff that he needed to see Dr. Crabtree immediately and that he was a powerful man and should not be kept waiting. Dr. Crabtree states that when Dr. Dodd told him of the meeting with the Hospital representatives, Dr. Crabtree asked why he had not been notified of the meeting. Dr. Crabtree contends that Dr. Dodd then became angry and shouted at Dr. Crabtree. Dr. Dodd and Dr. Crabtree met several times in the spring of 1991. Dr. Crabtree maintains that he was "troubled" by the meetings because (1) Dr. Dodd spoke to him about other impaired physicians, identifying them by name, and (2) Dr. Dodd became angry because Dr. Crabtree would not "be his friend" and "share intimate thoughts and feelings." Dr. Crabtree asserts that Dr. Dodd told him that his unwillingness to do so made Dr. Dodd "want to say to hell with me, and at that point I had lost a friend and become a `potential enemy.' " After meeting with Dr. Dodd on May 10, 1991, Dr. Crabtree no longer met with Dr. Dodd. Nevertheless, the Peer Review Committee continued advocating for Dr. Crabtree. In October 1991, the Board of Medical Examiners sent Dr. Crabtree a letter regarding its investigation, which was triggered by Dr. Crabtree's DUI conviction and subsequent treatment for alcoholism. The Board proposed a settlement that required Dr. Crabtree to sign a contract, to be furnished within thirty days, with the TMA's Impaired Physicians Program. The letter indicated that, if Dr. Crabtree rejected the settlement proposal, the case would be processed as a disciplinary matter.

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In November 1991, the TMA sent Dr. Crabtree a proposed Impaired Physicians Peer Review Committee Aftercare Contract, outlining the conditions for the Peer Review Committee to act as Dr. Crabtree's advocate. The proposal included an assessment by an independent psychiatrist, with Dr. Crabtree maintaining contact with the psychiatrist instead of Dr. Dodd. The psychiatrist would then report to Dr. Dodd generally on whether Dr. Crabtree was in compliance with the psychiatrist's recommendations. After conferring with his attorney, Dr. Crabtree decided not to sign the proposed aftercare contract. He stated in his deposition that he chose not to sign the agreement because he "did not think that that was indicated and the right thing to do," and that it was not necessary for him. Dr. Crabtree acknowledged that he understood at the time that his refusal to sign the agreement could adversely affect the Peer Review Committee's advocacy on his behalf before the Board of Medical Examiners, the Hospital and his malpractice insurance carrier. On March 2, 1992, the Peer Review Committee sent Dr. Crabtree a letter informing him that "further advocacy is no longer appropriate given the events that have occurred over the last several months." The letter informed Dr. Crabtree that the Peer Review Committee would notify Cookeville General Hospital of its decision. In addition, the Peer Review Committee indicated that if State Volunteer asked the Peer Review Committee about Dr. Crabtree's advocacy status, the Peer Review Committee would inform State Volunteer that Dr. Crabtree's advocacy status had been terminated. On June 3, 1992, State Volunteer sent Dr. Crabtree a letter informing him that it was not renewing his medical malpractice insurance policy. State Volunteer told Dr. Crabtree that it had recently reviewed his insurability: In the Committee's assessment of your insurability, it received a report from a representative of the Tennessee Medical Association's Impaired Physician Committee and was advised that you no longer have the advocacy of this program. Thereafter, a decision was made not to renew your policy when it expires August 5, 1992. The letter also informed Dr. Crabtree of his right to a review of the decision to not renew his policy. Apparently Dr. Crabtree requested a reconsideration of State Volunteer's decision. A second letter from State Volunteer to Dr. Crabtree dated July 24, 1992, explains that the decision not to

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renew was upheld upon reconsideration. State Volunteer discussed Dr. Crabtree's loss of advocacy: In the course of its substantial experience in insuring physicians who have - or have had - a chemical dependency problem or other impairment, [State Volunteer] has had good underwriting experience where these physicians have been participants in an impaired physician program of the sort operated by the state medical societies in Tennessee and in its adjoining states in which [State Volunteer] offers coverage. In fact, were it not for the existence of these specific programs, [State Volunteer] probably could not offer coverage to such physicians due to the underwriting risks involved, and under [State Volunteer's] underwriting guidelines, the loss of - or failure to achieve - the advocacy of such a program in the state where the physician practices are grounds for denial of coverage. State Volunteer's letter explained that, since July 30, 1990, it had continued to issue short term insurance policies to Dr. Crabtree "because [State Volunteer] was advised that you continued to enjoy some form of advocacy by the TMA [Impaired Physicians Program] as our underwriting guidelines require." Dr. Crabtree's final insurance policy expired August 5, 1992 by its own terms. On January 31, 1994, Dr. Crabtree filed a lawsuit in Chancery Court against Dr. Dodd, asserting a violation of Tennessee Code Annotated

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