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Volume XI, Number 266


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Wisconsin Law In Favor of Protecting Employers’ Freedom to Candidly Evaluate Employees: Hussain v. Ascension Sacred Heart

Dr. Mohammed Hussain, a radiation oncologist, was hired as a locum tenens at Ascension Sacred Heart—St. Mary’s Hospital (“St. Mary’s”) in Wisconsin for three short periods in 2011 and 2013.1 Before providing services, Dr. Hussain signed a Statement of Application (“Statement”), which expressly incorporated St. Mary’s Medical Staff Bylaws (“Bylaws”).2 Dr. Hussain admitted (1) he did not read the Bylaws prior to signing the Statement; (2) he did not ask any question about the Statement or Bylaws; and (3) he did not seek to modify either document.3

During and after each time Dr. Hussain worked at St. Mary’s, employees complained to Kimberly Hetland (“Hetland”), manager of the Radiation Oncology Department, about Dr. Hussain and his work.4 Hetland then requested that St. Mary’s cancel Dr. Hussain’s next scheduled assignment.5 In January 2015, Hetland completed a written evaluation of Dr. Hussain in which Hetland ranked Dr. Hussain’s skills in medical knowledge, patient care outcomes, and professional demeanor as “below average” and, in a narrative, wrote that she “would not have [Hussain] come back even if [St. Mary’s] were in dire need.”6 This letter was given to at least two doctors who did not work at St. Mary’s.7

In July 2018, Dr. Hussain sued St. Mary’s, alleging that its issuance of the evaluation, known as a “forever letter,” constituted actionable defamation and negligence.8 In September 2018, St. Mary’s asked Dr. Hussain to complete a release of claims against St. Mary’s.9 Dr. Hussain did not complete the release within ten days and St. Mary’s filed two breach of contract counterclaims against him, alleging that Dr. Hussain breached the terms of his Statement and the incorporated Bylaws by suing St. Mary’s and refusing to complete the release. St. Mary’s argued that the Statement, and, by incorporation, the Bylaws, was a valid contract between Dr. Hussain and St. Mary’s, in which Dr. Hussain agreed: (1) to hold St. Mary’s immune from civil liability in connection with its evaluation of him and (2) to execute a release of claims related to St. Mary’s evaluation of him upon request.10​

Dr. Hussain argued that the court should decline to enforce the terms of the contract as unconscionable and against public policy.11 The court analyzed whether the contract was procedurally and substantively unconscionable, finding that because Dr. Hussain was presumably a well-educated individual and had other locum tenans placement options available to him at the time, the contract was not procedurally unconscionable.12​

In an analysis of substantive unconscionability, the court must determine whether the terms lie outside the limit of what is reasonable or acceptable.13 The court found that the agreement was not substantively unconscionable because the release provision only prohibited suits relating to Dr. Hussain’s evaluation, not liability for any claim, and there is value in protecting an employer’s ability to be candid about an employee’s medical skill.14 Furthermore, a finding of unconscionability under Wisconsin law requires both procedural and substantive unconscionability.15 As a result, even if the court had found the agreement to be substantively unconscionable, Dr. Hussain’s claim for unconscionability would have failed because the agreement was not procedurally unconscionable.16 Dr. Hussain’s claim that the contracts were unenforceable on the basis of public policy also failed. Wisconsin courts have defined public policy as “that principle of law under which ‘freedom of contract is restricted by law for the good of the community.’”17 However, the court rejected this argument because the agreement at issue was specifically related to St. Mary’s evaluation of Dr. Hussain, rather than releasing St. Mary’s from liability for any claim of any kind, such as other agreements the courts had found unconscionable.18 Further, the court found that the Wisconsin legislature had enacted a public policy of protecting employers who provided good-faith employment references from civil liability.19 Despite these findings of an enforceable contract prohibiting Dr. Hussain from suing St. Mary’s, the court proceeded to consider the merits of his negligence and defamation claims.20 In order to bring a successful claim for defamation, a plaintiff must plead: “(1) a false statement; (2) communicated by speech, conduct or in writing to a person other than the person defamed; and [that] (3) the communication is unprivileged and tends to harm one’s reputation.”21 Dr. Hussain argued that the communication’s privilege (under the Wisconsin common law conditional privilege protecting communications that allow a prospective employer to evaluate an employee’s qualifications) was lost because Hetland knowingly provided false information.22 Dr. Hussain, however, did not provide any evidence from which a reasonable jury could find that Hetland knowingly provided false information.23 Additionally, Dr. Hussain failed to properly allege that any of the statements in the forever letter were false.24 Consequently, the court rejected his defamation claim.25

Lastly, Dr. Hussain alleged negligence and negligent hiring, training, or supervision against St. Mary’s.26 Specifically, he alleged that St. Mary’s had a duty to have his peer evaluation completed by another physician who personally observed his work, and that the hospital breached that duty when Hetland, a dosimetrist, wrote the forever letter based on feedback from other members of the radiology department. In Wisconsin, whether one has a duty to another is “determined by ascertaining whether the defendant’s exercise of care foreseeably created an unreasonable risk to others.”27 While the court agreed that the forever letter was negative and that its communication to others would foreseeably harm Dr. Hussain’s future employment prospects, there were no facts to suggest that the risk of harm was “unreasonable.”28 Additionally, Dr. Hussain plead no facts to show the court that a review by a dosimetrist rather than a physician posed an unreasonable risk of harm to him.29 Furthermore, the court held that St. Mary’s duty must be analyzed in the context of the parties’ contractually agreed upon limitations.30 Given that Dr. Hussain specifically agreed that St. Mary’s would be immune from liability for providing evaluations “that may be critical or otherwise arguably defamatory,” and without more facts to support his allegation that the risk of harm from the evaluation was unreasonable, the court granted St. Mary’s motion for summary judgment.31 Finally, Dr. Hussain’s claim for negligent hiring, training, or supervision was derivative of his negligence claim, and, therefore, because the negligent claim failed, his derivative claim failed as well.32

1 Hussain v. Ascension Sacred Heart—St. Mary’s Hosp., 2019 WL 5310677 (W.D. Wisc.) at *1.

2 Id. at *2.

3 Id. at *3.

4 Id.

5 Hussain at *3.

6 Id.

7 Id.

8 Id.

9 Hussain at *3.

10 Id. at *3-4.

11 Id. at *5.

12 Id. at *7.

13 Id.

14 Id.

15 Id. at *8.

16 Id.

17 Id. at *8, quoting Richards v. Richards, 181 Wis. 2d 1007, 1015 (1994).

18 Id. at *8.

19 Id.

20 Id. at *10.

21 Id. at *10, quoting Togerson v. Journal/Sentinel, Inc., 210 Wis. 2d 524, 534 (1997).

22 Id. at *11.

23 Id.

24 Id.

25 Id. at *12.

26 Id.

27 Id. at *12, quoting Shannon v. Shannon, 150 Wis. 2d 434, 443 (1989).

28 Id. at *12.

29 Id.

30 Hussain at *12.

31 Id.

32 Id. at *13.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume X, Number 14

About this Author

Meredith E. Eng Associate Chicago Health Care Services

Meredith is dedicated to providing effective, efficient, and innovative legal solutions to health care clients. Meredith’s education in health management and policy and experience as a hospital administrator in operations and strategy allow her to draw on her hands-on knowledge of the American health care system. As an Administrative Fellow at a Veterans Affairs hospital, she managed the operations of a variety of medical and surgical service lines, oversaw the implementation of an extensive action plan for quality improvement, and led multiple fact findings. Additionally, as a Strategy...