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Hagen v. Siouxland Obstetrics & Gynecology, P.C.

United States District Court, N.D. Iowa, Western Division

March 20, 2013

EDWARD P. HAGEN, D.O., Plaintiff,
v.
SIOUXLAND OBSTETRICS & GYNECOLOGY, P.C., an IOWA CORPORATION, PAUL J. EASTMAN, M.D., TAUHNI T. HUNT, M.D., ANGELA J. ALDRICH, M.D., and KIMBERLY A. LIEF, Defendants

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[Copyrighted Material Omitted]

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For Edward P Hagen, DO, Plaintiff: Stanley E Munger, LEAD ATTORNEY, Jay Elliott Denne, Munger, Reinschmidt & Denne, Sioux City, IA.

For Siouxland Obstetrics and Gynecology, PC, an Iowa Corporation, Defendant: Barry G Vermeer, LEAD ATTORNEY, Gislason & Hunter, LLP, Des Moines, IA; Dustan J Cross, LEAD ATTORNEY, PRO HAC VICE, Gislason & Hunter LLP, New Ulm, MN; Joseph L Fitzgibbons, LEAD ATTORNEY, Fitzgibbons Law Office, Estherville, IA.

For Paul J Eastman, MD, Tauhni T Hunt, MD, Angela J Aldrich, MD, Kimberly A Lief, MD, Defendants: Barry G Vermeer, LEAD ATTORNEY, Gislason & Hunter, LLP, Des Moines, IA; Dustan J Cross, LEAD ATTORNEY, PRO HAC VICE, Gislason & Hunter LLP, New Ulm, MN.

OPINION

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MARK W. BENNETT, UNITED STATES DISTRICT COURT JUDGE.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND MOTION TO STRIKE

TABLE OF CONTENTS

I. INTRODUCTION

A. Factual Background

1. Siouxland

2. Expansion of Siouxland

a. South Dakota

b. Minnesota

3. Hagen's behavior

a. Prior behavior concerns

b. Hagen's behavior at Siouxland and St. Luke's

4. Applications for medical licensure

a. Wisconsin application

b. Minnesota application

5. Hospital Incident on November 5, 2009

6. Termination

B. Procedural Background

II. MOTION TO STRIKE

A. Standards For Motion To Strike

B. Analysis

III. MOTION FOR PARTIAL SUMMARY JUDGMENT

A. Summary Judgment Standards

B. The Licensure Application Claims

1. Whether Siouxland, Eastman, Hunt, and Aldrich ratified

Lief's actions in completing Hagen's licensure applications

a. Arguments of the parties

b. Analysis

2. Fraudulent misrepresentation

a. Arguments of the parties

b. Analysis

3. Conspiracy to defraud

a. Arguments of the parties

b. Analysis

4. Forgery

a. Arguments of the parties

b. Analysis

5. Promissory estoppel

a. Arguments of the parties

b. Analysis

6. Tortious interference with prospective business advantage

a. Arguments of the parties

b. Analysis

C. The Termination Claims

1. Retaliatory discharge

a. Arguments of the parties

b. Analysis

2. Fiduciary duty

a. Arguments of the parties

b. Analysis

3. Breach of contract

a. Arguments of the parties

b. Analysis

4. Tortious interference with business relationships

a. Arguments of the parties

b. Analysis

D. Punitive Damages

IV. CONCLUSION

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I. INTRODUCTION

This case, a dispute regarding employment termination between plaintiff Edward P. Hagen, D.O. (" Hagen" ) and defendants Siouxland Obstetrics & Gynecology, P.C. (" Siouxland" ), Paul J. Eastman, M.D. (" Eastman" ), Tauhni T. Hunt, M.D. (" Hunt" ), Angela J. Aldrich, M.D. (" Aldrich" ), and Kimberly A. Lief (" Lief" ), (collectively " defendants" ), is before me on Defendants' Siouxland Obstetrics & Gynecology, P.C., Paul J. Eastman, M.D., Tauhni T. Hunt, M.D., Angela J. Aldrich, M.D., And Kimberly Lief's Memorandum Of Law In Support Of Their Motion For Summary Partial Judgment (docket no. 27) (" Motion For Partial Summary Judgment" ) and Defendants' Motion To Strike Certain Portions Of Plaintiff's Statement Of Additional Facts In Support Of Resistance To Defendants' Motion For Partial Summary Judgment And Portions Of Plaintiff's Appendix (docket no. 59) (" Motion To Strike" ). I must determine whether a genuine issue of material fact exists regarding Hagen's claims.

A. Factual Background

I set forth here only those facts, disputed and undisputed, sufficient to put in context the parties' arguments concerning the defendants' Motion For Partial Summary Judgment and Motion To Strike. Unless otherwise indicated, the facts recited here are undisputed, at least for purposes of summary judgment.

This case arises from two distinct sets of events that occurred in 2009. First, in July 2009, Hagen alleges that he requested that the defendants, including Siouxland office manager Lief, complete his applications for medical licensure in the states of Minnesota and Wisconsin. Second, in November 2009, Hagen was terminated from his employment at Siouxland by Eastman, Hunt, and Aldrich.

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1. Siouxland

Siouxland, an Iowa professional corporation, is located in Sioux City, Iowa and provides obstetric and gynecologic services to patients. Siouxland expanded into the area of cosmetic surgery and related services, including the development of The Rejuvenation Centre, which provided client services such as Botox treatment, Juviderm treatment, hair removal, liposuction, massage therapy, and weight loss consultation.

Siouxland was formed and organized by three physicians, including Hagen's father, in 1975. At the time of Hagen's termination, in November 2009, the doctors with an interest in Siouxland were Hagen, Eastman, Hunt, and Aldrich.

Hagen is a doctor of obstetrics and gynecology, presently licensed to practice medicine in the states of Iowa, South Dakota, and Wisconsin. On January 1, 1993, Hagen entered into an employment agreement with Siouxland. Hagen has been an equity owner, president, and director at Siouxland. At the time of his termination, Hagen was the president of Siouxland. Hagen believed he was the decision maker for Siouxland because Eastman and Aldrich did not want to make decisions that angered people.

Hagen was actively involved in hiring Eastman, Hunt, and Aldrich. Eastman became an equity owner of Siouxland on or about July 27, 1994, and he has been an equity owner, officer, and director since. Hunt became an equity owner on or about July 29, 1997, and she has been an equity owner, officer, and director of Siouxland since. Hunt was the first female doctor of obstetrics and gynecology in Sioux City. Hagen believed that hiring a female would be good for the practice because it would bring in more patients who prefer seeing a female physician. After Hunt joined Siouxland, she became busier while and Hagen and Eastman saw fewer patients. According to Eastman, Hunt and Aldridge had more patients because female patients generally prefer female doctors of obstetrics and gynecology. Yet, Hagen's workload increased when Hunt was hired because he had to train and assist her in surgeries. Aldrich became an equity owner of Siouxland on or about August 2000, and has been an equity owner, officer, and director of Siouxland since.

When the doctors joined Siouxland, they agreed not to " engage in the practice of medicine except as an employee of the CORPORATION unless otherwise authorized by the Board of Directors." Article III(a). App. 71. The employment agreement states all income generated " for services as a doctor and all activities relating thereto, such as lecturing, writing articles and consulting work, shall belong to the CORPORATION . . . ." Article IV. App. 72. A doctor could be terminated by delivering a written notice of cancellation at least 90 days prior to the effective date of cancellation or " discharged by the CORPORATION in the event of embezzlement or other theft; willful contravention of professional ethics; substantial and willful violation of any other terms or conditions of this employment agreement, all subject to determination by the Board of Directors of the CORPORATION." Article XI(a)(5)-(6). App. 75.

2. Expansion of Siouxland

Revenue generation became an increasing source of dispute between Hagen and the other Siouxland doctors, particularly regarding profits derived from non-Siouxland activities. Hagen and Eastman, Hunt, and Aldrich disagreed on whether they should participate in the profits of the Dakota Dunes Surgery Center and the Pierce Street Surgery Center. Also, Hagen sought opportunities to expand Siouxland

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to Sioux Falls, South Dakota and the Twin Cities area, which defendants opposed.

a. South Dakota

Hagen engaged in efforts to expand Siouxland to Sioux Falls, South Dakota, yet defendants were unwilling to expand Siouxland's business there. Defendants allege that when Hagen proposed the idea of expanding Siouxland business efforts outside the state of Iowa, they informed Hagen such expansion would violate his contract. Defendants allege that despite their unwillingness to assist in developing Siouxland in Sioux Falls, Eastman, Hunt, and Aldrich were not opposed if Hagen was willing to share with them the profits derived from Hagen's efforts. Defendants allege that when Hagen saw patients in Sioux Falls, his activities generated revenue of approximately $1,800 and he kept the money. Hagen denies defendants' recollection of these events, including the discussion of Hagen's contract, his refusal to share profits, and whether he kept the money earned from his single visit with Sioux Falls patients.

b. Minnesota

After Hagen purchased a vacation home in Wisconsin and began spending increasing amounts of time in Wisconsin and the Twin Cities area, he considered starting a weight loss clinic in Minnesota. He discussed it with his fiancé, Denise Watson (" Watson" ), over the Fourth of July in 2009. Watson worked as a dental hygienist and was interested in changing careers. In July 2009, Hagen announced to Eastman, Hunt, and Aldrich his aspirations to open a diet clinic in Minnesota called Vivify HCG Weight Loss (" Vivify" ). At this time when Hagen started planning for Vivify in Minnesota, he did not look at the Siouxland bylaws. The other doctors informed Hagen of their expectation that Hagen would share the Minnesota profits. Hagen informed the other doctors that " he would be happy to allow them to participate in the Minnesota business efforts, and share in the profits realized therefrom in proportion to their respective capital and labor inputs." Complaint ¶ 25.

However, Eastman, Hunt, and Aldrich were not interested in investing time or capital in developing business in Minnesota. Defendants allege that Eastman, Hunt, and Aldrich reminded Hagen that his employment agreement required proceeds go to Siouxland. Hagen informed others that Eastman, Hunt, and Aldrich were opposed to his efforts to open up another diet clinic because they did not want him to make revenue without them being able to make revenue. Hagen alleges that he discussed this new venture with Eastman, Hunt, and Aldrich, who all agreed it would not be a problem.

Hagen did not actively pursue Vivify until after his termination in November 2009. Prior to his termination, Hagen had been bringing diet medication from Siouxland, which was taken by Watson and Watson's friend, in preparation to open Vivify. During the time Lief was sending out applications to the Minnesota Board and the Wisconsin Board, Hagen employed a Minnesota attorney, David Wandling (" Wandling" ), to incorporate Vivify. Hagen filed for the incorporation of Vivify in the state of Minnesota on November 16, 2009. He located office space in early December 2009 and Vivify opened in January 2010.

3. Hagen's behavior

Defendants allege that Hagen's behavior has been an issue in the past. Defendants allege that Hagen's behavior at Siouxland and St. Luke's was unprofessional.

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a. Prior behavior concerns

Prior to his termination, Hagen was aware that Eastman, Hunt, and Aldrich had complaints about his behavior dating back to 2000 or 2002. At that time, Eastman, Hunt, and Aldrich had a meeting with Hagen and counsel, Jeff Garreans, and the other doctors gave Hagen a second chance. Defendants contend concerns leveled at the meeting included Hagen's anger, alcohol use while on call, and poor behavior towards staff. Hagen denies these concerns were addressed and stated that he does not have a drinking problem. Hagen's ex-wife, Kelly Hagen, also stated that Hagen does not have a problem with alcohol.

In 2000 or 2001, Hagen had an extramarital affair with a 22-year-old St. Luke's labor and delivery nurse, Melissa Gordon, with whom he worked. Hagen did not try to hide the affair and knew that the employees at Siouxland were aware of the affair. The staff at St. Luke's hospital was aware of the affair and witnessed intimate behavior like hugging and tickling on hospital premises. Eastman, Hunt, and Aldrich knew about Hagen's affair with Gordon, but never discussed it with Hagen.

b. Hagen's behavior at Siouxland and St. Luke's

Hagen alleges that his relationship with the nursing staff at Siouxland was good. Hagen contends that he never yelled or screamed at the Siouxland staff, but might have raised his voice when things did not get done properly. Hagen also alleges that he never hollered or cursed at Eastman, Hunt, Aldrich, or Lief. Defendants disagree with Hagen's assessment of his behavior at Siouxland. Defendants allege that Hagen's business at Siouxland had slowed and he periodically would not see any patients on Mondays, Fridays, and some Wednesdays.

Tracy Lynn Miller, R.N., (" Miller" ) worked at St. Luke's with Hagen in the labor and delivery department off and on from 1995 through 2007. Defendants allege that Hagen yelled at staff while at St. Luke's, belittled nurses, and threatened to fire nurses. Defendants allege Miller received complaints from other nurses regarding Hagen being rude. Defendants allege there was an event when Hagen threw a Mityvac across the C-section room, splattering blood all over. Defendants allege that Hagen threw a prescription pad at Miller and said, " Thanks a fucking lot for rounding with me." App. 196.

Peggy Mace, R.N. (" Mace" ) has been a nurse at St. Luke's since 1977, twentyeight years as a staff nurse and seven years as management in the labor and delivery department, working with Hagen on many occasions. Defendants contend that Mace witnessed unprofessional behavior by Hagen, including threatening nurses' jobs, calling nurses stupid, throwing a bloody surgical instrument across the room, and kicking things at the hospital. Defendants allege that Mace and other nurses were scared of Hagen. Hagen used the nickname " Allbitch" for Dr. Aldrich, which was heard by nursing staff, including Mace and Miller. Mace felt that Hagen was hurting Siouxland because " there were doctors that were not referring to their group. . . . He had very, very few patients in the last months that he was there." App. 210. Family practitioner Merle H. Muller, M.D., who often worked at St. Luke's and Mercy hospitals with Hagen, found Hagen to be confrontational during their interactions and referred far less obstetrics and gynecology patients to him than he otherwise would have. Defendants allege that the St. Luke's nursing staff would refuse to take Hagen's patients. However, Hagen alleges that his

Page 1034

relationship with the St. Luke's nursing staff was good and they respected him.

4. Applications for medical licensure

In July 2009, Hagen asked Lief to start his application process for licensure in Minnesota and Wisconsin. Hagen's conversation with Lief was under five minutes and he told her " to start filling out [his] applications for Minnesota and Wisconsin. Really just Minnesota . . . might as well get Wisconsin too." Hagen's Deposition 102:1-8. Lief had the authority to fill out licensing forms and it was her office duty to do so. Hagen did not ask Eastman, Hunt, or Aldrich to fill out his applications, and it was not their duty to fill out medical applications. Hagen did not ask Lief if she knew how to fill out the applications during their conversation, and Lief never told Hagen she did not know how to fill out the applications. Hagen could not recall whether or not he told Lief the reasons why he requested she fill out the applications, and Lief did not remember Hagen telling her what future service he would perform in Minnesota and Wisconsin. Hagen did not provide Lief any materials when he requested she complete the applications. Hagen did not investigate how long the licensing application processes would take, and he did not tell Lief there was any rush.

Hagen believes that Lief would normally complete an assignment from Hagen in a short amount of time because she was on thin ice after Hagen told her he did not think she was performing well. Lief was fired from her previous job at Burgess Health Center in Mapleton, Iowa, because she charged a personal item on a company credit card. Lief cannot recall whether she disclosed this transgression when she applied for her job at Siouxland. Lief was often angry at Hagen.

Watson continually asked Hagen to check on the licensure applications, which prompted him to follow up with Lief in September. Lief told Hagen she was in the process of filling the applications out. Hagen never asked to see the actual copies of his applications between July and October. The first time Hagen contacted either the Minnesota Board of Medical Examiners (" Minnesota Board" ) or the Wisconsin Board of Medicine (" Wisconsin Board" ) was approximately October 1, 2009.

On October 8, 2009, Lief received a call from Hagen while she was at the hospital with her dying father, stating that she needed to get to the office to finish completing the applications. Defendants allege Hagen threatened Lief's job during this call. When Lief went to the office that afternoon, Hagen, Eastman, Hunt, and Aldrich were not at the office. Defendants allege that Lief felt that her job was in danger if she did not complete the applications. Hagen denies Lief's recollection of their communications on October 8, 2009, noting that he did not know her father was dying and that he would never threaten her job.

Lief completed the applications for Minnesota and Wisconsin and mailed them on October 8 and 9, 2009. The Minnesota Board received Hagen's application on October 9, 2009. At the latest, the Wisconsin Board received Hagen's application by October 20, 2009. Lief admits that Hagen did not read or sign the Minnesota or Wisconsin applications. Lief was aware when she sent the applications that she had notarized signatures that were not Hagen's. Lief admits that she doesn't remember who signed Hagen's name on the applications; it was either her or someone helping her fill the applications out in the Siouxland office. Lief admits that she notarized Hagen's signature knowing that it was against the law to do so. Defendants

Page 1035

allege that Lief knew at the time that she should not have notarized Hagen's signature, but she thought her job was in jeopardy. Lief also had someone sign the names of Eastman and Hunt on the Minnesota application to verify that the photograph of Hagen was recent and his likeness. Defendants allege that Lief answered the application questions regarding Hagen's malpractice claims history incorrectly, but innocently, even though the correct information was in the office file.

Hagen did not tell Eastman, Hunt, or Aldrich that he had asked Lief to complete his Minnesota and Wisconsin applications. Eastman knew that Hagen had asked Lief to fill out the Minnesota and Wisconsin applications prior to Hagen's termination because Lief told Eastman that Hagen asked her to fill out the applications. Defendants allege that Hunt and Aldrich were not aware of the applications at the time Lief mailed them. Defendants allege that at the time she completed the applications, Lief did not give Eastman, Hunt, or Aldrich the information about the inaccurate signatures nor did she ever show them the applications. Lief was paid a $5,000 bonus " for the EP [Hagen] handling" by Eastman, Hunt, and Aldrich, as stated in an email from Hunt to Lief on April 14, 2010. Pl. App. 132.

a. Wisconsin application

As of December 11, 2009, Hagen had not met various requirements of his Wisconsin license application, including providing a medical educational verification form, providing a hospital verification of privileges form, providing a complete National Practitioner Databank self-query, and completing his oral examination. On December 11, 2009, the Wisconsin Board informed Hagen that he had failed a necessary written examination and would require retesting. Hagen retook the examination on February 25, 2010. Defendants allege that the Wisconsin Board considered concerns expressed in November 2005 and June 2009 about Hagen's professional behavior. Defendants allege that as a result of Hagen's previous malpractice action and suspension, Hagen's file was sent to a Wisconsin Board member acting as a credentialing liaison who requested that Hagen pass an oral examination to explain his past behavior and suspension. On May 19, 2010, Hagen completed the oral examination requirement. The Wisconsin Board allowed Hagen to correct the inaccuracies on his application. In June 2010, Hagen received his Wisconsin license and accepted employment with Health Partners in Amery, Wisconsin.

b. Minnesota application

On October 15, 2009, Wendy Boswell (" Boswell" ), a licensure specialist at the Minnesota Board, sent Hagen a letter requesting an explanation as to why he had answered " No" to Questions 9 and 10. Question 9 on the Minnesota application states: " Have you ever been notified of any investigations by any state medical board, medical society, or any hospital of any complaints against you relative to the practice of medicine, or have you been reprimanded or censured by any medical society or licensing board? If so, give particulars." App. 313. Question 10 on the Minnesota application states: " Have you ever been a defendant in any medical malpractice lawsuits, had any malpractice settlement, or have any pending? If so, give a detailed clinical explanation of each case as well as documentation of outcome (insurance papers or court documents)." App. 313. The true answer to each of these questions was easily ascertainable by the Minnesota Board through the National Practitioner Data Bank, which supplies a list of hospital privileges, malpractice suits, licenses modified in some way or revoked or suspended to the Minnesota Board.

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Hagen alleges that he did not get the letter from Boswell because it was sent to his office at Siouxland and Lief responded to it without consulting him. Hagen alleges that Lief told the Minnesota Board that he interpreted the questions to only ask for the last five years and she signed his name without his knowledge. In defendants' version of these events, Lief received a letter indicating there was an error on Hagen's application, she handed it to Hagen, they discussed materials in his file, and Hagen requested that Lief send the materials to the Minnesota Board. Defendants allege that Lief learned of Hagen's previous lawsuits only after she was notified by the Minnesota Board that there was a question answered incorrectly in Hagen's Minnesota application, and Lief told the Minnesota Board that she " did not know he had any lawsuits." App. 246-47, 169.

After learning of the incorrect answers on his application on December 9, 2009, Hagen responded to Boswell on December 11, 2009:

All I can say is that I am sorry that I did not read all the questions and answers. I had my office manager Kim Lief fill out the form and I trusted her that it was filled out correctly. I did not mean to deceive the board. Kim was not with us when the law suite [sic] occurred and was unaware of it.

App. 316. Hagen believed that Lief was aware of the previous lawsuit, but he was determined to tell Boswell that Lief was unaware of it because he wanted to get his Minnesota license. Although Lief was not with Siouxland at the time of his lawsuit, Hagen believe that she should have been aware of it because she had access to the folder of information on the lawsuit. In the December 11, 2009 letter to the Minnesota Board, Hagen responded to other inquiries unrelated to Question 10. Hagen also sent a follow-up letter to Boswell regarding his 10-day suspension at St. Luke's, which was considered by the Minnesota Board. App. 317. In a subsequent letter to Boswell, Hagen also recounted an incident involving himself in which the Iowa Board of Medicine (" Iowa Board" ) thoroughly investigated an incident involving intoxication and also discussed with Boswell interference with an emergency room doctor. Hagen has not made any allegations in his complaint nor deposition that these two incidents discussed with Boswell were overlooked by Lief or misreported on his application by Lief.

After Hagen's December 11, 2009, letter, Ruth Martinez, the supervisor of the complaint review unit of the Minnesota Board, received a complaint on February 24, 2010, that Hagen was practicing medicine without a license, stemming from his Vivify business. Since Hagen had a pending application to their licensure unit, she referred the matter to the licensure committee of the Minnesota Board. As a result, on March 11, 2010, Hagen received a letter from Helen Patrikus at the Minnesota Board, requesting information about whether he was practicing medicine in Minnesota without a license. On March 26, 2010, Wandling responded to the Minnesota Board, explaining that " Hagen purchases HCG through his weight loss business located in South Dakota. While Dr. Hagen has never purchased HCG in Minnesota, he has provided HCG to a handful of weight loss patients in relation to Vivify's business efforts." App. 320-23. On November 9, 2010, Wandling confirmed to the Minnesota Board that " Dr. Hagen briefly engaged in the practice of medicine in Minnesota, it appears that while Dr. Hagen did not intentionally engage in the practice of medicine, he did provide a small number of clients with HCG that was purchased

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and delivered outside of Minnesota . . ." App 302-304.

The Minnesota Board sent a notice and order for a prehearing conference and hearing on April 4, 2011. The licensure committee raised the following issues: Question 9, Question 10, false representation on the Vivify website that Hagen was authorized to treat patients in Minnesota, and the February 2010 complaint that Hagen was practicing without a license. On May 9, 2011, following this notice and order for prehearing conference, Hagen withdrew his application for medical licensure with the state of Minnesota. Wandling, on Hagen's behalf, agreed to withdraw Hagen's pending license application with the Minnesota Board, with the understanding that the Minnesota Board would make a final determination after resolution of Hagen's claims in this case. Subsequently, Hagen obtained new Minnesota counsel on the licensure application issue, reapplied for a Minnesota license, and is awaiting the Minnesota Board's decision.

Hagen alleges that his Wisconsin application was delayed and his Minnesota application was denied because both applications contained inaccurate and inadequate information. Although Hagen takes full responsibility for his decision to practice medicine in Minnesota without a license, he believes that he would have received a medical license in the state of Minnesota if Lief would have filled out his application correctly. Hagen believes he was denied his Minnesota medical license because Lief forged and notarized his name and sent in an incomplete application. Hagen believes Eastman, Hunt, and Aldrich all took part in delaying the applications as long as possible and filling them out incorrectly. Hunt admitted that Siouxland has done nothing to correct the information with the Minnesota Board or to investigate Hagen's allegations regarding Lief's actions.

5. Hospital Incident on November 5, 2009

On November 5, 2009, at approximately 12:50 pm, a female patient was admitted to St. Luke's. Eastman was the patient's consulting physician and obstetrician and he was contacted during the day. In the patient's medical records, Eastman is listed as the primary physician. Another physician, Dr. Gary Hattan, was in charge of the patient's care at the hospital and the patient received bedside monitoring by Hattan's partner, Dr. Kristi Walz. Eastman was paged at approximately 4:55 pm. Eastman was talking on the phone with Hagen when the page came in and Hagen told Eastman, " I'll take care of it." As is customary, Hagen took over the call from Eastman at 5:00 pm and responded to the hospital's page by providing verbal orders for the patient at 5:00 pm.

Defendants allege that at 5:03 pm and 5:15 pm, the nurses checked the patient and determined that the fetus was still viable, noting heart tones and fetal movement noticed by the patient. Mace called Hagen at 5:22 pm and told him the St. Luke's staff was having difficulty keeping track of the fetal heart tones. Mace had not asked Eastman to come in prior to 5:00 pm because she felt they had adequate care, a doctor bedside, and the patient was receiving the best care they could provide. Defendants allege that Hagen responded by ordering the patient be monitored by Doppler and transferred to the Intensive Care Unit (" ICU" ), but Hagen did not come in and they called him again about 40 minutes later, which Hagen denies. At 5:57 pm, the patient indicated that she felt dizzy, nauseated, and lightheaded, and the RN recorded blood pressure at 45/31, pulse 138 beats per minute, and Doppler fetal heart tones. At 6:00 pm, a bedside ultrasound showed no fetal heart rate.

Page 1038

Hagen arrived at the ICU to see the patient at approximately 6:15 pm, and he did not know when the fetal heart tones had declined.

Hagen reacted to the incident by yelling and shouting in the hallway of St. Luke's that " it's your fault. You let this baby die. You killed this baby." Defendants allege that he yelled repeatedly and in the presence of nursing staff, guests, and patients. Hagen yelled there is a " dead fucking baby" in front of doctors, nurses and hospital staff. Eastman recommended to St. Luke's to give Hagen some form of discipline for his behavior in the ICU on November 5, 2009, but not a suspension. On approximately November 11, 2009, Hagen received a 10-day suspension from St. Luke's. Hagen understood that the language he used and the way he yelled was inappropriate. During the week of November 9, 2009, Lief received Hagen's suspension papers from St. Luke's at the Siouxland office. Eastman, Hunt, and Aldrich were aware of Hagen's suspension and the reasons for it.

Hagen alleges that he talked to Eastman sometime after Hagen performed a Csection on Eastman's patient and told Eastman he had committed malpractice. Hagen alleges that he advised Eastman that he had an obligation as a physician to turn Eastman in to the Iowa Board. According to Eastman, Hagen talked to him regarding the death of the baby and Hagen seemed agitated, but not towards Eastman.

Hagen discussed the malpractice that he believe occurred on November 5, 2009 with Mike Ellwanger, an attorney for St. Luke's, as well as attorneys Mo Sadden and Lief Erickson. Hagen told Eastman that he talked to attorneys. Hagen alleges that he told Hunt and Aldrich that he might turn Eastman in for malpractice. Defendants allege that Hagen told Eastman that he was going to sue St. Luke's for suspending him, but he wouldn't bring Eastman into it. Eastman, Hunt, and Aldrich were upset when a lawyer called the Siouxland office for Hagen, asking about his intentions to sue St. Luke's. After the lawyer called for Hagen, Aldrich, Hunt, and Lief called Siouxland's attorney, Dan Dykstra (" Dykstra" ). Aldrich told Dykstra that Hagen had been suspended and that he had made threats to sue St. Luke's. Aldrich ...


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