Appeals panel: Peer review doesn’t let female Russian Jewish doctor sue Northwest Comm. Hospital for discrimination


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CHICAGO — A three-judge panel of the U.S. Seventh Circuit Court of Appeals said a doctor isn’t allowed to bring a discrimination lawsuit against Northwest Community Hospital in Arlington Heights because she’s an independent contractor, not an employee.

Dr. Yelena Levitin and Chicago Surgical Clinic, which she owns and operates, sued Northwest Community, where Levitin performed surgeries for a dozen years until it terminated her practice privileges in January 2013. In her Title VII complaint, Levitin alleged the hospital discriminated based on her gender, Jewish religion and Russian heritage.

U.S. District Judge Gary Feinerman agreed with the hospital’s position that Levitin lacked standing because she was an independent contractor, prompting her appeal. Seventh Circuit Judges David Sykes, Amy Barrett and Amy St. Eve heard arguments Dec. 3 and issued an opinion May 8. Sykes wrote the opinion.

Court records show Levitin earned most of her revenue from surgeries at Northwest from 2000 through early 2013. In December 2008 she complained another doctor harassed her by criticizing her medical decisions, undermining her in front of patients and interrupting a surgery. That harassment stopped the following month after the hospital reprimanded the other doctor, but she said other doctors also complained about her. Ultimately Dr. William Soper, then chairman of the surgery department, said he would start proactively reviewing her scheduled surgeries.

U.S. Seventh Circuit Court of Appeals Judge Diane Sykes   Youtube screenshot

Soper also looked over Levitin’s prior surgeries, referring 31 cases to the Medical Executive Committee, which determined she deviated from the standard of care four times. The committee planned to conduct quarterly reviews, but reconvened after Levitin operated without administering proper sedation and terminated her practice privileges.

Levitin appealed the committee’s decision through two intermediate review levels, and ultimately in January 2013 the hospital’s board upheld the termination, prompting her federal complaint seven months later.

“We have repeatedly held that a physician with hospital practice privileges is not the hospital’s employee merely because he is subject to peer review,” Sykes wrote, pointing to a 1991 Seventh Circuit opinion in Knight v. United Farm Bureau Mutual Insurance. Although subsequent cases established there are situations in which a doctor shares an indirect, but strong enought, employer-employee relationship to establish Title VII protection, that is not true in Levitin’s situation.

“Levitin owned her own medical practice, billed her patients directly and filed taxes as a self-employed physician,” Sykes wrote. “Northwest did not provide Levitin with employment benefits or pay her professional-licensing dues. Moreover, Levitin’s work agreement with Northwest confirms her independence. She could set her own hours, subject only to operating-room availability; she could obtain practice privileges at other hospitals and redirect her patients to those locations; and she could use her own staff in surgeries. Most importantly, she made the treatment decisions for her patients.”

Although the hospital did put certain restrictions on Levitin, such as on-call demands, educational standards, peer-review procedures and reporting requirements, those conditions don’t establish an employee relationship.

Levitin argued Northwest’s peer-review proceedings were discriminatory against her, specifically in retaliation for her 2008 complaint, and alleging they went so far “beyond merely adhering to professional and regulatory standards” as to classify her as an employee.

“There’s no support for this novel theory,” Sykes wrote. “The right to control an employee generally comes from contractual and other workplace terms that govern the parties’ relationship, not an isolated peer-review proceeding. … Compliance with regulatory or statutory requirements does not establish control for Title VII purposes.”