• Reference Release Overcomes Tortious Interference Claim
  • December 10, 2009 | Author: Michael Robert Lied
  • Law Firm: Howard & Howard Attorneys PLLC - Peoria Office
  • After Bradley Botvinick completed his residency in anesthesiology at Rush University Medical Center (“Rush”), he obtained employment with Anesthesiology Associates of Dunedin (“AAD”), a Florida doctors’ association.

    Botvinick’s employment at AAD depended on receiving clinical privileges to practice at Morton Plant Mease Healthcare (“Morton”). Morton gave Botvinick temporary privileges.  Dr. Anthony Ivankovich, Botvinick’s supervisor at Rush, also sent Morton a letter regarding Botvinick’s qualifications.

    After completing Rush’s residency program, Botvinick received a phone call from the head of AAD’s anesthesiology department, who said that Morton had received negative evaluations on Botvinick. Botvinick received another phone call from a member of Morton’s credential committee, who also referred to negative evaluations and informed Botvinick that Morton was suspending his temporary privileges.

    A member of Morton’s credential committee requested to speak with Ivankovich about Botvinick.  Shea faxed Ivankovich a “Release and Immunity” that Botvinick signed in connection with his application to Morton. That release extended “absolute immunity” to third parties who provided information regarding Botvinick’s professional competence and character.

    Botvinick filed a complaint alleging that various defendants tortiously interfered with his expectation of employment at AAD.  The defendants moved for summary judgment on Botvinick’s tortious interference claim, supported by affidavits stating the defendants did not provide written or oral evaluations of Botvinick to Morton.  The district court granted the summary judgment motion and Botvinick appealed.

    The court of appeals concluded that Botvinick failed to create a triable issue because he had no evidence that the defendants prevented him from obtaining clinical privileges at Morton.

    Even if Botvinick had established all the essential elements of his tortious interference claim, it was doubtful that the claim could survive the other defenses raised by the defendants. In particular, the “Release and Immunity” authorized third parties to provide Morton with any information bearing on Botvinick’s professional qualifications, credentials, clinical competence, character, ability to perform safely and competently, ethics, behavior, or any other matter reasonably having a bearing on his qualifications for initial and continued appointment to the medical staff. The release further provided that Botvinick would “extend absolute immunity to, release from any and all liability, and agree not to sue” either third parties or Morton for any matter relating to his application for privileges. According to the appellate court, it was difficult to see how this broad, explicit language did not immunize the defendants from tort liability for anything they may have told Morton about Botvinick.

    Under Illinois law, if a written release is clear and unambiguous, the court determines the parties’ intent from the plain language of the document. The clear intent of the broad release signed by Botvinick from “any and all” liability was to protect Rush physicians who communicated with Morton against just the type of suit that Botvinick brought.  A release that purported to immunize a deliberate lie might be invalid as a matter of public policy.  However, Botvinick did not challenge the release for this reason.  Summary judgment in favor of the defendants was affirmed.

    Botvinick v. Rush University Medical Center, et al., 574 F.3d 414 (7th Cir. 2009).