Chicago Business Litigation Lawyer Blog
A doctor who owned her own practice, billed her patients directly, and filed taxes as a self-employed physician was not an employee of the hospital she had privileges at, and therefore was not entitled to sue the hospital for discrimination after it revoked her practice privileges.
For almost 13 years, Dr. Yelena Levitin performed surgeries at Northwest Community Hospital in Arlington Heights, Illinois. Levitin is a female, Jewish surgeon of Russian descent. She owns and operates Chicago Surgical Clinic, Ltd., a private medical practice. From 2000 until 2013, most of her revenue came from the work she performed at Northwest.
In 2008, Levitin complained to Northwest that Dr. Daniel Conway, another surgeon, was harassing her. Levitin alleged that Conway repeatedly criticized her medical decisions, undermined her in front of her patients, and interrupted one of her surgeries. Northwest reprimanded Conway, and the harassment stopped in January 2009. After that, at least four doctors filed complaints concerning Levitin’s professional judgment. Another refused to work with Levitin entirely. The head of pathology complained that Levitin habitually requested inappropriate tests from his department. In response to the complaints, Dr. William Soper, then the chair of Northwest’s surgery department, informed Levitin that he would begin proactively reviewing the surgeries she scheduled for potential issues.
Soper also reviewed Levitin’s prior surgeries. He referred 31 cases to the Medical Executive Committee, which oversees physician credentialing at Northwest. The committee found that Levitin deviated from the appropriate standard of care in four of the cases. The committee initially determined that Levitin should receive quarterly reviews, but it reconvened after Levitin operated on a patient without proper sedation. At this meeting, the committee decided to revoke Levitin’s practice privileges. Levitin appealed the committee’s decision but was unsuccessful in getting her privileges reinstated.
Seven months later, Levitin sued Northwest and several of the doctors who complained about her. The complaint contained counts for antitrust violations, state-law claims, and a claim for employment discrimination based on sex, religion, and ethnicity in violation of Title VII. The district judge dismissed the antitrust claims early but allowed the remaining claims to proceed. At summary judgment, the judge determined that Levitin was not a Northwest employee, which resolved the Title VII claim. The district court then relinquished jurisdiction over the state-law claims and entered final judgment. Levitin then appealed.
On appeal, Levitin challenged only the district court’s decision regarding the scope of Title VII. The appellate panel began by citing Vakharia v. Swedish Covenant Hospital, stating that the 7th Circuit had repeatedly held that a physician with hospital privileges is not the hospital’s employee merely because they are subject to peer review. However, the panel noted that the court had also previously held that under certain factual situations, a physician who enjoys hospital privileges could be said to have an indirect employer-employee relationship with the hospital sufficient to invoke Title VII protection.
The panel then stated, however, that Levitin’s case was materially distinguishable from those precedents. The panel noted that Levitin owned her own practice, billed her patients directly, and filed taxes as a self-employed physician. The panel stated that Levitin could set her own hours, subject only to operating-room availability; she could obtain privileges at other hospitals and redirect her patients to those locations, and she could use her own staff in surgeries. The panel determined that because of these factors, Levitin was not an employee of Northwest, and it, therefore, affirmed the decision of the district court.
You can view the full decision here.
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