It has not been unusual for employed physicians to seek the protection provided to independent medical staff members through the due process procedures provided by medical staff by-laws. The case of Levitin and Chicago Surgical Clinic v. Northeast Community Hospital is the exact opposite; Dr. Levitin was an independent medical staff member seeking Title VII protection from a hostile work environment usually provided only to employees.

This is the first time I have seen that argument made, and it was rejected on summary judgment by the United States District Court of the Northern District of Illinois. Dr. Levitin alleged that Northeast Community Hospital, and the medical staff officers thereof, had created a hostile work environment through a pattern of allegedly sham and retaliatory peer review activities.

Dr. Levitin was in private practice as the sole shareholder of Chicago Surgical Clinic, and practiced as a general surgeon. Although Dr. Levitin was in private practice, she alleged that she was compensated by the hospital through her participation in a Physician Hospital Organization (PHO) and as of many owners in a cyber knife joint venture. The Court found that financial relationship insufficient to create an employment relationship.

Dr. Levitin alleged a number of other factors in support of her argument that she was controlled by the hospital, i.e.:

• Dr. Levitin was subjected to hospital policies such as mandatory call coverage, credentialing and peer review, and quality assurance;
• The hospital provided the “tools of the trade”, meaning the hospital facilities, the staff, supplies, etc.; and
• Dr. Levitin’s medical staff relationship could be terminated by the hospital and/or the medical staff.

The Court found that none of these factors were persuasive with respect to establishing an employment relationship with the hospital, especially since Dr. Levitin’s relationship with the hospital was not exclusive and she was free to have a similar relationship with as many other hospitals as she liked, and granted the hospital’s Summary Judgment Motion.

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