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Physician Staff Privileges and Tortious interference with Business Expectancy

Tortious interference is a commonly misunderstood and applied claim. It requires 1) a valid business expectancy, 2) defendant’s knowledge of the expectancy, 3) intentional interference by the defendant inducing or causing a breach of the expectancy, 4) absence of justification, and 5) damages. Misischia v. St. John’s Mercy Med. Ctr., 30 S.W.3d 848, 863 (Mo. Ct. App. 2000). There are a considerable amount of cases discussing what constitutes a “valid business expectancy.” Interestingly, a number of cases address whether a physician’s staff privileges are a valid business expectancy.

Generally, the “exclusion of a physician or surgeon from practicing [in a private hospital] is a matter which rests in the discretion of the [hospital’s] managing authorities. Cowan v. Gibson, 392 S.W.2d 307, 308 (Mo. 1965). The underlying reason for this is that the courts are reluctant to interfere in the decision-making of private hospitals regarding staffing and hours. Id.see also Zipper v. Health Midwest, 978 S.W.2d 398, 415-17 (Mo. Ct. App. 1998) (a “hospital’s consideration, when terminating the privileges of a physician, of its potential liability for monetary damages could unduly impugn a hospital’s actions in terminating the privileges of a physician providing substandard patient care”). Instead, something more is required and Cowan did state that as an exception to this general rule there was a claim when it was shown in a different set of circumstances that two physicians conspired with others for their financial advantage to exclude a plaintiff from practicing medicine. Id. at 309.

There are more complications and nuances to an analysis in the context of physicians, but that example is helpful in that it reflects how closely and seriously courts scrutinize the valid business expectancy requirement. Contact with questions.