Jeffrey V. Rabuffo, M.D. v. Middlesex Hospital et al. (2013)

MEMORANDUM OF DECISION

FACTS

On April 24, 2013, the plaintiff, Jeffrey V. Rabuffo, M.D., filed an eight-count amended complaint against the defendants, Middlesex Hospital (hospital) and Jonathan D. Levine, M.D. Counts one and two of the amended complaint are against the hospital.   Count one of the amended complaint alleges breach of contract, and count two alleges breach of covenant of good faith and fair dealing.   Count four is against Dr. Levine, and alleges tortious interference with contract.   Counts three, five, six, seven, and eight are against both of the defendants.   Count three alleges tortious interference with contract, count five alleges fraudulent misrepresentation, count six alleges negligent misrepresentation, count seven alleges intentional infliction of emotional distress, and count eight alleges negligent infliction of emotional distress.   For each of these claims, the plaintiff seeks monetary damages, damages for emotional and physical injury, punitive damages, attorneys fees and costs, interest, and any further remedies the court deems appropriate.

The following facts are undisputed.   The plaintiff is a licensed medical doctor and board certified urologist, and, from July 1973, through March 2011, was also a member of the hospital's medical staff.   The medical staff at the hospital were granted privileges that allowed them to practice medicine, and admit and treat patients at the hospital.¹  The medical staff at the hospital is governed by the “Medical Staff Executive Committee” (MSEC), which operates in accordance with the bylaws, rules, and regulations (bylaws) of the hospital.   The MSEC is responsible for making recommendations to the board concerning the awarding, renewing, and termination of medical staff privileges.   The bylaws describe specific procedures which must be followed by the MSEC in taking any actions regarding privileges or membership to the medical staff.

The hospital's bylaws are very explicit as to the scope of the plaintiff's rights to a hearing and/or appellate review, and limits the plaintiff's right only to challenging adverse actions taken by the defendants.   Specifically, § 11.2.2 of the bylaws states that a recommendation or action under § 11.2.1 shall be considered adverse only when it has been either (1) recommended by the MSEC or (2) adopted by the board under circumstances where no prior right to request a hearing existed.   Section 11.2.1 then explicitly defines the scope of adverse decisions and recommendations, which includes the reduction, suspension, revocation, restriction, or the failure to renew clinical privileges, denial of reappointment, and denial of appointment.   Finally, § 11.2.3 lists actions and circumstances that would not entitle the plaintiff to any hearing or appellate review rights, and this includes “any other action not specifically subject to hearing and appellate review under Article Eleven.”

In June 2010, the plaintiff applied for a reappointment to the hospital's medical staff.   On September 22, 2010, the plaintiff was notified that the “Multidisciplinary Review Committee” of the hospital's staff was conducting a peer review of the plaintiff's clinical activity during the recredentialing cycle, was retaining an outside consultant to review his performance, and was initiating a period of “Focused Professional Practice Evaluation” (investigation).   The investigation was conducted in conjunction with the hospital's consideration of the plaintiff's application for reappointment to the medical staff.

In early 2011, certain members of the medical staff raised concerns regarding the plaintiff's clinical practice and the pending investigation.   The MSEC subsequently formed an ad hoc committee, and, in late February 2011, the plaintiff was asked to be interviewed by the committee and to make a presentation to advocate his position and defend himself against any allegations.   However, the plaintiff was not aware of the allegations against him nor of the composition of the committee until the first committee meeting, which was held in early March 2011.

During the first meeting, the plaintiff was made aware as to the specific concerns about his clinical performance, and was provided with a chance to present a defense in a second meeting, which was held one week later.   During this second meeting, the plaintiff argued that the patient complications in his cases were caused by defective equipment that was used during surgical procedures.   The plaintiff also requested that any recommendations by the ad hoc committee regarding the plaintiff's reappointment or medical competency be deferred until a reasonable investigation is made as to the allegedly defective medical equipment.   The plaintiff's request was denied.

After the second meeting with the ad hoc committee, the plaintiff was approached by Dr. Levine, who advised the plaintiff that he should relinquish admission, discharge, and operative privileges because it is the unanimous view of the ad hoc committee that the privileges should not be renewed.²  Dr. Levine further advised the plaintiff that the adverse recommendation would be reported to the hospital's board and to the Department of Public Health, and that the plaintiff would lose both his privileges and his medical license.   During the conversation, Dr. Levine failed to advise the plaintiff of his rights, under the bylaws, to a hearing where he can challenge any recommendation by the committee.

Subsequently, on March 22, 2011, the plaintiff relinquished his admission, discharge, and operative privileges.   The letter that the plaintiff submitted was virtually identical to the language that Dr. Levine provided to the plaintiff via e-mail.   On March 30, 2011, the plaintiff received a letter from his employer, informing him that his employment is terminated because he withdrew his hospital privileges.

In addition to the undisputed facts, the plaintiff alleges that, because of the hospital's failure to adhere to the administrative process, he was forced to relinquish his medical privileges and has suffered permanent harm to his professional status and reputation.   The plaintiff further alleges that Dr. Levine wrongfully induced the plaintiff into believing that he would lose his medical privileges and license unless he relinquishes his privileges.

On May 24, 2013, the defendants filed a motion to dismiss the plaintiff's complaint, on the ground that the court lacks subject matter jurisdiction.   The motion to dismiss was accompanied by a memorandum, in which the defendants argue that the plaintiff failed to exhaust the administrative remedies available under the bylaws of the hospital's medical staff.   The defendants attached exhibits to the memorandum, including an affidavit of Dr. Levine, e-mail correspondence between the plaintiff and Dr. Levine, a copy of the plaintiff's letter that relinquishes his admission, discharge, and operative privileges, and a copy of the hospital's bylaws.   On July 8, 2013, the plaintiff filed an objection to the motion to dismiss.   The plaintiff attached exhibits, including an affidavit of Dr. Rabuffo, a resume of Dr. Rabuffo, and a number of letters.   This matter was heard on short calendar on July 15, 2013.

DISCUSSION

“[A] motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “Pursuant to the rules of practice, a motion to dismiss is the appropriate motion for raising a lack of subject matter jurisdiction.”   St. George v. Gordon, 264 Conn. 538, 545, 825 A.2d 90 (2003).  “Under our exhaustion of administrative remedies doctrine, a trial court lacks subject matter jurisdiction over an action that seeks a remedy that could be provided through an administrative proceeding, unless and until that remedy has been sought in the administrative forum ․ In the absence of exhaustion of that remedy, the action must be dismissed.”  (Internal quotation marks omitted.)   Levine v. Sterling, 300 Conn. 521, 528, 16 A.3d 664 (2011).  “Because the exhaustion [of administrative remedies] doctrine implicates subject matter jurisdiction, [the court] must decide as a threshold matter whether that doctrine requires dismissal of the [plaintiff's] claim.”  (Internal quotation marks omitted.)  Id. “[I]t is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged.”  (Internal quotation marks omitted.)   Keller v. Beckenstein, 305 Conn. 523, 531, 46 A.3d 102 (2012).

“Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10–31(a)(1) may encounter different situations, depending on the status of the record in the case ․ [L]ack of subject matter jurisdiction may be found in any one of three instances:  (1) the complaint alone;  (2) the complaint supplemented by undisputed facts evidenced in the record;  or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts ․ Different rules and procedures will apply, depending on the state of the record at the time the motion is filed.”   (Citation omitted;  internal quotation marks omitted.)  Conboy v. State, 292 Conn. 642, 650–51, 974 A.2d 669 (2009).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, it must consider the allegations of the complaint in their most favorable light ․ In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)   Id., 651.  “In contrast, if the complaint is supplemented by undisputed facts established by affidavits submitted in support of the motion to dismiss ․ other types of undisputed evidence ․ and/or public records of which judicial notice may be taken ․ the trial court, in determining the jurisdictional issue, may consider these supplementary undisputed facts and need not conclusively presume the validity of the allegations of the complaint ․ Rather, those allegations are tempered by the light shed on them by the [supplementary undisputed facts] ․ If affidavits and/or other evidence submitted in support of a defendant's motion to dismiss conclusively establish that jurisdiction is lacking, and the plaintiff fails to undermine this conclusion with counteraffidavits ․ or other evidence, the trial court may dismiss the action without further proceedings ․ If, however, the defendant submits either no proof to rebut the plaintiff's jurisdictional allegations ․ or only evidence that fails to call those allegations into question ․ the plaintiff need not supply counteraffidavits or other evidence to support the complaint, but may rest on the jurisdictional allegations therein.”  (Citations omitted;  emphasis in original;  internal quotation marks omitted.)  Id., 651–52.

“The doctrine of exhaustion of administrative remedies is well established in the jurisprudence of administrative law ․ The doctrine provides that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted ․ Where a statutory requirement of exhaustion is not explicit, courts are guided by [legislative] intent in determining whether application of the doctrine would be consistent with the statutory scheme ․ Consequently, [t]he requirement of exhaustion may arise from explicit statutory language or from an administrative scheme providing for agency relief.”  (Internal quotation marks omitted.)  River Bend Associates, Inc. v. Simsbury Water Pollution Control Authority, 262 Conn. 84, 100, 809 A.2d 492 (2002).  “If the available administrative procedure ․ provide[s] the plaintiffs with a mechanism for attaining the remedy that they seek ․ they must exhaust that remedy ․ The plaintiff's preference for a particular remedy does not determine the adequacy of that remedy.  [A]n administrative remedy, in order to be adequate, need not comport with the [plaintiffs'] opinion of what a perfect remedy would be.”  (Citation omitted;  internal quotation marks omitted.)  Id., 101.  “A primary purpose of the doctrine is to foster an orderly process of administrative adjudication and judicial review, offering a reviewing court the benefit of the agency's findings and conclusions.   It relieves courts of the burden of prematurely deciding questions that, entrusted to an agency, may receive a satisfactory administrative disposition and avoid the need for judicial review.”  (Internal quotation marks omitted.)  St. Paul Travelers Cos. v. Kuehl, 299 Conn. 800, 812, 12 A.3d 852 (2011).

The Supreme Court has recognized “that the obligation to follow medical staff bylaws is paramount and that a hospital must afford its medical staff all the process and protections encompassed by its bylaws.”  Owens v. New Britain General Hospital, 229 Conn. 592, 604, 643 A.2d 233 (1994).  “A hospital's obligation to follow bylaws can stem from a contractual relationship between the hospital and the physician ․ It can also be based on a preexisting legal duty imposed by our state department of health regulations to adopt bylaws, rules and regulations, including medical staff bylaws ․ The obligation can also stem from the recognition of a fiduciary concept.”  (Citations omitted;  internal quotation marks omitted.)  Id., 604–05.

“Courts are generally unwilling to substitute their judgment on the merits for the professional judgment of medical and hospital officials with superior qualifications to make such decisions ․ In so specialized and sensitive an activity as governing a hospital, courts are well advised to defer to those with the duty to govern ․ Although a hospital is bound by its bylaws, judicial review of a hospital board's decision to suspend a physician's privileges focuses on the reasonableness of the action taken in relation to the interests of the parties and the public.”  (Citations omitted;  internal quotation marks omitted.)  Id., 606.   Hence, “[t]he exercise of [the court's] discretion should be subject only to limited judicial surveillance to determine if the hospital substantially complied with its applicable bylaw procedures.”  Id., 606–07.   As a result, “courts have analogized the decisions of hospitals concerning staff privileges to decisions made by administrative agencies.”   Id., 607 n.27. “Thus, it seems clear that before resorting to the courts to challenge a hospital's staffing decision, a doctor must first exhaust her remedies under the hospital's bylaws, much the same way that a party to an administrative proceeding must exhaust her remedies in that proceeding before turning to the courts.”  Prince v. Johnson Memorial Hospital, Superior Court, judicial district of Tolland, Docket No. CV–09–4011504–S (April 9, 2010, Bright, J.) (49 Conn. L. Rptr. 680, 682).

“There are some exceptions to the exhaustion doctrine, although [the Supreme Court] [has] recognized such exceptions only infrequently and only for narrowly defined purposes.”  (Internal quotation marks omitted.)  Pet v. Dept. of Health Services, 207 Conn. 346, 353, 542 A.2d 672 (1988).  “Among the exceptions is where recourse to the administrative remedy would be futile or inadequate ․ or where there is a constitutional challenge to the propriety of the procedures followed by the administrative agency.”  (Citation omitted.)   Id. “An administrative remedy is futile or inadequate if the agency is without the authority to grant the requested relief.”  Cannata v. Dept. of Environmental Protection, 215 Conn. 616, 628, 577 A.2d 1017 (1990).

In the present case, it is undisputed that the plaintiff did not exhaust all of the hearing and appellate rights available to him under the hospital's bylaws.³  The issue that remains before the court is whether the plaintiff was required to exhaust all his administrative remedies under the factual circumstances which surround the present case.   The plaintiff argues that there are three excuses to the exhaustion doctrine that apply to the present case.   Specifically, the plaintiff argues:  (1) he is not required to exhaust his administrative remedies because the bylaws of the hospital are inadequate in that they do not provide an administrative process for managing the claims alleged or appropriate redress for the injuries sustained;  (2) the futility exception to the exhaustion requirement supports the court's exercise of subject matter jurisdiction;  and (3) the unconstitutionality exception to the exhaustion requirement also supports the court's exercise of jurisdiction.

Adequacy of Administrative Remedies Exception

“[A]n administrative remedy, in order to be ‘adequate,’ need not comport with the plaintiffs' opinion of what a perfect remedy would be.”  Connecticut Mobile Home Ass'n., Inc. v. Jensen's, Inc., 178 Conn. 586, 590, 424 A.2d 285 (1979).   The fact that the plaintiff prefers certain forms of relief, such as an award of punitive damages, attorneys fees or costs, which are not available through the administrative process, does not excuse the failure to exhaust the administrative process before bringing the case to the Superior Court.  Hunt v. Prior, 236 Conn. 421, 433–34, 673 A.2d 514 (1996).

The plaintiff cites to O'Halloran v. Charlotte Hungerford Hospital, 63 Conn.App. 460, 776 A.2d 514 (2001), for the proposition that a physician does not have an adequate remedy at law available through the hospital's administrative process, if the hospital's bylaws do not provide a means for the physician to receive redress for the type of injury alleged.   In O'Halloran, the plaintiff was a physician who brought an action against the hospital and others associated with the hospital, challenging the defendants' reappointment process.  Id., 464.   In addition, the plaintiff in O'Halloran alleged that:  “In the years prior to the commencement of [the underlying Superior Court case], the individual defendants consistently and continuously treated the plaintiff differently than other similarly situated physicians at the hospital.   The individual defendants acted in a concerted and calculated attempt to drive him from the active staff at the hospital.   As a result of the individual defendants' actions, the plaintiff suffered damages in the form of lost opportunities to treat his own patients, to attract new patients and to obtain referral patients from other physicians.”  Id.

The trial court, O'Halloran v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV–99–0079084–S (May 14, 1999, Pickett, J.) (24 Conn. L. Rptr. 517), rev'd, O'Halloran v. Charlotte Hungerford Hospital, 63 Conn.App. 460, 776 A.2d 514 (2001), dismissed the case, reasoning that the plaintiff had failed to exhaust his administrative remedies.   The Appellate Court reversed, holding that the plaintiff did not have an adequate remedy at law available through the administrative process.   O'Halloran v. Charlotte Hungerford Hospital, supra, 63 Conn.App. 465.   In reaching its decision, the Appellate Court noted that the trial court incorrectly categorized the plaintiff's action as a mere challenge to the appointment process.  Id., 464.   The Appellate Court emphasized that the plaintiff also challenged the defendants' allegedly tortious conduct that was unrelated to the reappointment process and that he sought compensation for financial damage caused by injury to his reputation and standing.  Id. The Appellate Court concluded that the hospital's bylaws did not provide the means by which the plaintiff could receive redress for the type of injury alleged.   Id.

In the present case, the first two counts against the defendants involve contractual claims.   Count one of the plaintiff's complaint alleges breach of contract against the hospital.   Specifically, the hospital allegedly did not follow proper procedures when:  (1) it conducted an investigation into concerns raised about the plaintiff's performance;  (2) it failed to investigate concerns raised by the plaintiff regarding equipment failure that was a contributing factor to the patient complications that arose during surgeries that the plaintiff performed;  and (3) it coerced the plaintiff into relinquishing his medical privileges without properly apprising him of his right to challenge the recommendations and actions of the ad hoc committee, MSEC, and board.   The plaintiff claims that he suffered various injuries due to the “failure of the [h]ospital to adhere to the administrative process required by the [b]ylaws.”

The crux of the plaintiff's claim in count one is that the hospital breached its contract with the plaintiff by failing to adhere to the administrative procedures, as set forth in the bylaws.   The claim for breach of contract is directly related to the contract and the bylaws that bind both parties.   As such, any dispute regarding the bylaws and procedure must first utilize the procedure set out in the bylaws.   See Neiman v. Yale University, 270 Conn. 244, 255, 851 A.2d 1165 (2004) (“Where employment rights are contractual, and the contract establishes an internal grievance procedure for resolving disputes, the procedure ought to be followed.”  [Internal quotation marks omitted.] ).   In the present case, because the defendants' alleged wrongful conduct in count one falls within the scope of the bylaws and the contractual administrative procedures, the plaintiff was obligated to exhaust the procedures and remedies under the bylaws before bringing the breach of contract claim to court.

In count two, the plaintiff alleges that there was a breach of the implied covenant of good faith and fair dealing as to the hospital.   In particular, the plaintiff alleges that the hospital's actions “were conducted in violation of the contractual relationship existing between the [h]ospital and the plaintiff, the standards established by [t]he [j]oint [c]ommission, the HCQIA and various other laws, rules, regulations, policies and procedures ․” Much like the claim for breach of contract, count two also focuses on the hospital's violation of the contractual relationship that it had with the plaintiff by failing to adhere to the administrative procedures.   As a result, the plaintiff was obligated to exhaust the procedures and remedies under the bylaws before bringing the implied covenant of good faith and fair dealing claim to court.

Counts three through eight of the complaint are all tort claims against the defendants.  “In determining whether a tort claim is subject to the grievance procedures of a collective bargaining agreement, the critical inquiry ․ is whether the tortious conduct is encompassed by the terms of the agreement.”   Sobczak v. Board of Education, 88 Conn.App. 99, 109, 868 A.2d 112, cert. denied, 273 Conn. 941, 875 A.2d 43 (2005);  see also Mendillo v. Board of Education, 246 Conn. 456, 717 A.2d 1177 (1998) (a “complaint sounding in tort will not in itself prevent [resort to contractual grievance procedures] if the underlying contract embraces the disputed matter.”  [Internal quotation marks omitted.] ).

Count three alleges tortious interference with contract as to both defendants.   Although the claim relates to the bylaws and the reappointment procedures, it is not the focus of the count.   Instead, the count focuses on the defendants' “deliberate and malicious course of conduct,” including misrepresentations by the defendants and the threat of an adverse recommendation from the ad hoc committee, which caused the plaintiff to relinquish his discharge and operative privileges.   These tortious activities involve more than a mere challenge to the reappointment process.   These allegations of tortious conduct are akin to the allegations in O'Halloran, because the bylaws do not provide the means by which the plaintiff can receive redress for the type of injury alleged, and the plaintiff seeks monetary damages under this count that are not available through the administrative procedures.   Hence, much like in O'Halloran, the plaintiff is not required to exhaust the procedures and remedies under the bylaws before bringing the tortious interference claim against the defendants.

As to count four, the plaintiff again alleges tortious interference with contract, but only as to Dr. Levine.   As such, the claim in count four is further removed from the grievance process because it is against Dr. Levine, and the bylaws do not provide for a remedy for actions taken by individual employees of the hospital.   Therefore, the plaintiff was not required to exhaust the administrative procedures and remedies before bringing the tortious interference with contract claim against Dr. Levine.

Finally, counts five through eight also all involve allegations of tortious conduct, and are against both defendants.   Count five alleges fraudulent misrepresentation, count six alleges negligent misrepresentation, count seven alleges intentional infliction of emotional distress, and count eight alleges negligent infliction of emotional distress.   Much like the claims for tortious interference, counts five, six, seven, and eight all focus on the tortious conduct by the defendants, such as the allegedly false and threatening statements made by Dr. Levine.   Consequently, the bylaws would not provide redress for the plaintiff, and the plaintiff is not required to exhaust the remedies before bringing these claims to court.

The claims for fraudulent and negligent misrepresentation can be distinguished from the claim for negligent misrepresentation in Neiman v. Yale University, supra, 270 Conn. 244.   In Neiman, the plaintiff, a former philosophy professor at Yale University (Yale), brought multiple claims against Yale after it declined to offer her a tenured appointment to its faculty.  Id., 246.   Yale moved to dismiss all the counts on the ground that the trial court did not have subject matter jurisdiction over the action because the plaintiff had failed to exhaust the remedies available to her through the internal grievance procedure provided for by the faculty handbook.  Id., 249.   In response, the plaintiff argued, in part, that the handbook did not provide adequate remedies because it did not allow for damages to be awarded with respect to her allegations of negligent misrepresentation.  Id., 260.   On that issue, the court ruled that the plaintiff's administrative remedies are not inadequate because the grievance procedures would have addressed the very issue of wrongful termination that the plaintiff raises in the current action.  Id. The court also noted that the plaintiff's preference for a remedy does not determine whether that remedy is adequate.  Id.

The facts in the present case can be distinguished from Neiman because, here, the plaintiff does not claim that the defendants represented that he would be reappointed or have his medical privileges renewed.   To the contrary, the plaintiff claims that the defendants tortiously represented, prior to a formal decision on the matter, that he would not be reappointed or have his privileges renewed.   Moreover, unlike Neiman, the plaintiff is alleging that he was effectively forced to revoke his medical privileges and resign due to the tortious misrepresentations of the defendants, including misrepresentations made by Dr. Levine.   These comments were not made during the actual reappointment procedures, and such tortious activity is not directly related to the reappointment process.   In addition, these misrepresentations by the defendants coerced the plaintiff to forego the very administrative remedies that the defendants now claim that the plaintiff has failed to exhaust.   In contrast, the plaintiff in Neiman had the option to challenge the final adverse tenure decision through the grievance procedure outlined in the faculty handbook, and the alleged misrepresentations of the defendants did not deprive her of rights.   As such, this court finds that the tortious conduct in the present case is more comparable to that in O'Halloran than to the conduct in Neiman.

The conclusion to deny the motion to dismiss the tortious counts is also consistent with the holding in Prince v. Johnson Memorial Hospital, supra, 49 Conn. L. Rptr. 680, where the court dismissed a petition for the bill of discovery where the plaintiff failed to exhaust the available administrative remedies under the hospital's bylaws.   In reaching its decision, the court distinguished the facts of the case from O'Halloran.   Specifically, the court stated that the plaintiff's allegations are different than those in O'Halloran because:  “[The plaintiff's] claims of breach of contract, breach of the implied covenant of good faith and fair dealing, breach of fiduciary duty, and infliction of emotional distress are inextricably intertwined with the hospital's review of her status.   In fact, her complaint makes clear that her claims arise specifically out of her allegation that the hospital failed to follow its bylaws when it summarily disciplined her.”  Id., 682.   Finally, the court stressed that “while the hospital's administrative process in O'Halloran could not address the plaintiff's allegation regarding years of tortious conduct by the individual defendants, here the hospital's procedure can address the underlying issue which gives rise to all of the petitioner's possible claims—the disciplinary actions taken against her.”  Id.

The facts in the present case have a superficial resemblance to those in Prince.   Nevertheless, the key and controlling distinction between the two cases is that, in the present case, the hospital's procedures, as defined in the bylaws, do not address the underlying issue which gives rise to all of the plaintiff's claims.   Specifically, the underlying issue in Prince was the disciplinary actions taken against the plaintiff, which are redressable under the bylaws.   In contrast, counts three through eight in the present case focus on the allegedly tortious conduct of the defendants.   Although the tortious claims in the present case are connected to the reappointment process, they are nevertheless sufficiently removed from the process to fall outside the scope of the bylaws.

Futility Exception

The futility exception to the exhaustion doctrine is limited in scope.  “It is futile to seek a remedy only when such action could not result in a favorable decision and invariably would result in further judicial proceedings.”   (Internal quotation marks omitted.)  Simko v. Ervin, 234 Conn. 498, 507, 661 A.2d 1018 (1995).  “[T]here is a presumption [however,] that administrative board members acting in an adjudicative capacity are not biased ․ To overcome the presumption, the plaintiff ․ must demonstrate actual bias, rather than mere potential bias, of the board members challenged, unless the circumstances indicate a probability of such bias too high to be constitutionally tolerable.”  (Citations omitted;  internal quotation marks omitted.)  O & G Industries, Inc. v. Planning & Zoning Commission, 232 Conn. 419, 429, 655 A.2d 1121 (1995).   In addition, “when a party's suspicion of bias on the part of a state agency is speculative, such a suspicion does not render pursuit of administrative remedies futile.”  Simko v. Ervin, supra, 508.

The plaintiff's argument for futility is mostly based on the alleged bias of two of the members of the ad hoc committee, namely, David J. Miner, M.D., and Dr. Levine.   As to Dr. Miner, the plaintiff is arguing that he was not qualified to be part of the ad hoc committee due to the fact that he was privy to the plaintiff's personal medical and psychiatric conditions, and was not allowed to share such information.   As to Dr. Levine, who is a member of both the MSEC and the ad hoc committee, the plaintiff is arguing that Dr. Levine is biased because he had previously been involved in considering matters before the MSEC. Specifically, he was involved in informal reviews and the retention of the outside consultant.

The plaintiff has failed to demonstrate actual bias of the committee members that could not result in a favorable decision and invariably would result in further judicial proceedings.   Even if the participation of Dr. Levine and Dr. Miner was inappropriate, it does not demonstrate that these members would inevitably make an adverse recommendation.   As a result, the plaintiff is not excused from exhausting administrative remedies on the ground that such remedies would be futile due to the bias of the committee members.

Unconstitutionality Exception

“Limiting the judicial bypass of colorable constitutional claims to those instances of demonstrable futility is consistent with our duty to eschew unnecessarily deciding constitutional questions ․ Pursuant to that duty, we must limit circumvention of administrative proceedings to instances in which those proceedings would be futile because no adequate administrative remedy exists.   Moreover, the mere assertion in an administrative proceeding of a constitutional challenge to a statute or agency procedure does not automatically satisfy the futility exception to the exhaustion requirement.   To determine whether a party properly may seek court intervention prior to the completion of administrative proceedings, we examine whether the court has been asked to address issues entrusted to the [commissioner] and whether the [commissioner] could issue appropriate relief.”  (Citations omitted;  internal quotation marks omitted.)  St. Paul Travelers Cos. v. Kuehl, supra, 299 Conn. 812–14.  “Where there is a statutory grant of authority that would allow an agency to award the relief sought without deciding a constitutional question, the futility exception will not apply, and a plaintiff will be required to exhaust her administrative remedies ․ If, however, the only way to determine whether a plaintiff can obtain the relief that she seeks is through a resolution of the constitutional challenge, she need not exhaust her administrative remedies and the court does have jurisdiction to hear the claim.”  (Citations omitted.)  Coyle v. Commissioner of Revenue Services, 142 Conn.App. 198, 208–09, 69 A.3d 310, cert. denied, 309 Conn. 906, 68 A.3d 659 (2013).

In the present case, the plaintiff alleges that he was not apprised of his rights under the bylaws to a hearing and an opportunity to refute any challenge to his clinical competency.   These allegations do not rise to the level of a constitutional violation.   The plaintiff was apprised of the concerns regarding his clinical performance, and was given the opportunity to present a defense during the second meeting with the ad hoc committee.   Moreover, even if the defendants did not provide the plaintiff with an explanation of his rights to appeal any adverse recommendations or actions by the ad hoc committee and board, these same procedures were outlined in the company's bylaws.   The unconstitutionality exception is a narrow exception, and the plaintiff has not provided any relevant Connecticut case law that would support a ruling in his favor as to this exception.   As a result, this court declines to deny the motion to dismiss based on this ground.

CONCLUSION

For the foregoing reasons, the court grants the defendants' motion to dismiss for lack of subject matter jurisdiction as to counts one and two, and denies the motion as to counts three, four, five, six, seven, and eight.

Domnarski, J.

FOOTNOTES

FN1. Dr. Levine is the president of the hospital's medical staff and the chair of the MSEC..  FN1. Dr. Levine is the president of the hospital's medical staff and the chair of the MSEC.

FN2. Although the affidavit of Dr. Levine discusses communications that Dr. Levine had with the plaintiff after the ad hoc committee meeting, it does not acknowledge that this particular conversation took place.   However, the affidavit also does not specifically deny that such a conversation took place.   The other evidence submitted by the defendants does not challenge the plaintiff's version of the events in regard to his conversations with Dr. Levine..  FN2. Although the affidavit of Dr. Levine discusses communications that Dr. Levine had with the plaintiff after the ad hoc committee meeting, it does not acknowledge that this particular conversation took place.   However, the affidavit also does not specifically deny that such a conversation took place.   The other evidence submitted by the defendants does not challenge the plaintiff's version of the events in regard to his conversations with Dr. Levine.

FN3. See “Memorandum of Law in Opposition to [the] Defendant's Motion to Dismiss,” p. 11..  FN3. See “Memorandum of Law in Opposition to [the] Defendant's Motion to Dismiss,” p. 11.

Domnarski, Edward S., J.