Leal v. Secretary, U.S. Dep’t of Health & Human Serv. (Summary)

NATIONAL PRACTITIONER DATA BANK

Leal v. Secretary, U.S. Dep’t of Health & Human Serv., No. 09-15727 D.C. Docket No. 08-01062-CV-ORL-22-GJK (11th Cir., Sept. 22, 2010)

The United States Court of Appeals for the Eleventh Circuit affirmed a district court’s judgment denying relief to a physician who sought to have a report removed from the National Practitioner Data Bank.

The hospital filed a report with the Data Bank following the summary suspension of the physician’s clinical privileges due to his violent, threatening, and physically destructive and damaging behavior. The physician argued that the report was factually inaccurate and that the Secretary’s review of the report was arbitrary and capricious. However, the court explained that the Secretary decides only whether the report accurately describes the adverse action that was taken against the physician and the reporting hospital’s explanation for the action; the Secretary does not decide whether incidents listed in the report actually occurred.

Dr. Leal also argued that the 60-day suspension of his privileges was not a reportable event because he was not suspended for conduct that affects or could affect adversely the health or welfare of a patient or patients. The court found that the hospital was required to report its disciplinary action to the Data Bank “even though its halls were not littered with injured patients as a result of Dr. Leal’s very bad day” and that “disruptive and abusive behavior by a physician, even if not resulting in actual or immediate harm to a patient, poses a serious threat to patient health or welfare.”

Dr. Leal’s final argument was that summary suspensions are only reportable when imposed to protect patients from imminent danger, and that his suspension was not imposed because of imminent danger to patients. The court rejected that argument finding that imminent danger is not required before a summary suspension is reportable, that a hospital is required to report a professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days, and that a summary suspension is a professional review action.

 

Lawrence v. Mehlman (Full Text)

0 9 -4 4 0 9 – c v
L aw r e n c e v . M e h lm a n

UN ITED STATES COURT O F APPEALS
FOR THE SECOND C IRCU IT

SUMM ARY ORDER

R U L IN G S BY SUMM A R Y OR D E R DO NO T HA V E PR E C E D E N T IA L E F FE C T . C IT A T IO N TO A
SUM M A R Y O R D E R F IL E D O N O R A FT E R JA N U A R Y 1 , 20 0 7 , IS PE RM IT T E D A N D IS GO V E R N E D B Y
F ED E R A L R U L E O F A PP EL L A T E PRO C E D U R E 32 .1 A N D TH IS CO U R T ’S LO C A L R U L E 32 .1 .1 . W H E N
C IT ING A SUM M A R Y O R D E R IN A DO C UM E N T F IL E D W ITH TH IS CO U R T , A PA R T Y M U ST C IT E
E ITH ER TH E FE D ER A L A P PE N D IX O R A N E L E C TR O N IC D A T A BA SE (W ITH TH E NO TA T IO N
“SUM M A R Y O R D E R ” ) . A PA R T Y C IT IN G A SUM M A R Y O R D ER M U ST SE R V E A C O PY O F IT O N A N Y
P A R T Y NO T R E P R E SE N T E D B Y CO U N S E L .

A t a s tated term o f the U n ited S tate s C ou rt o f A ppea ls fo r the Second C ircu it, he ld
a t the D an ie l Pa trick M oyn ihan U n ited S ta te s C ou rthou se , 500 Pea rl S tree t, in the C ity o f
N ew Y o rk , on the 10 day o f A ugu s t, tw o thou sand ten .
th

PRESENT : REENA RAGG I ,
GERARD E . LYNCH ,
DENNY CH IN ,
C ircu it Judge s.

– – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – –
PETER LAW RENCE ,

P la in tiff-Appe llan t,

v .

N o . 09 -4409 -cv

IRA M EHLMAN , as a ide r and abe tte r , NYACK
EM ERGENCY PHY S IC IAN S , P .C .,
D e fendan ts-Appe llee s,

EM TEL NYACK PR INC IPALS GROU P ,
D e fendan t.
– – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – — – – – – –

FOR A PPELLANT :

FOR A PPELLEES :

M ichae l H . Su s sm an , Su s sm an & W a tk in s , G o shen , N ew
Y o rk .

Edw a rd F . Beane , D onna E . F ro sco , K eane & B eane ,
P .C ., W h ite P la in s , N ew Y o rk .

A ppea l from the U n i ted S ta tes D is tr ic t C ou r t for the Sou thern D is tr ic t of N ew Y o rk

(R obe rt W . Sw ee t, Judge) .

U PON DUE CON S IDERAT ION , IT IS HEREBY ORDERED , AD JUDGED , AND

DECREED tha t the judgm en t en te red on O c tobe r 14 , 2009 , is A FF IRMED .

P la in tiff Pe te r L aw rence , an A frican -Am e rican doc to r w ho w o rked in the eme rgency

depa rtm en t a t N yack H o sp ita l, sued de fendan ts Ira M eh lm an , the departm en t d irec to r , and

N y a ck Em e rg en cy Phy sic ian s , P .C . (“NEP ” ), th e co rpo ra tion th a t ope ra ted th e em e rg en cy

depa rtm en t, fo r race d isc rim ina tion unde r 42 U .S .C . § 1981 , T itle V II o f the C iv il R igh ts A c t

o f 1964 , 42 U .S .C . § 2000e e t seq ., and N ew Y o rk H um an R igh ts Law . L aw rence now

appea ls from an aw a rd o f summ a ry judgm en t fo r de fendan ts . See Law rence v . N yack

Em e rgency Phy sic ian s , P .C ., 659 F . Supp . 2d 584 (S .D .N .Y . 2009 ). W e rev iew the d is tric t

cou r t’s dec is ion de novo , and w e w ill affirm on ly if the reco rd , v iew ed in the ligh t m o s t

favo rab le to the nonm ov ing party , revea ls no genu ine issue o f ma te ria l fac t. See Fed . R . C iv .

P . 56 (c); A nde rson v . L ibe rty Lobby , Inc ., 477 U .S . 242 , 247 -48 (1986 ); R edd v . W righ t, 597

F .3d 532 , 535 -36 (2d C ir. 2010 ) . W e assum e the par t ies’ fam i liar ity w i th the fac ts and reco rd

o f p rio r p roceed ing s , w h ich w e re fe rence on ly as necessa ry to exp la in ou r dec is ion to a ffirm .

W e ana lyze Law rence’s d isc rim ina tion c la im s unde r the fam ilia r bu rden -sh ifting

framew o rk se t fo rth in M cD onne ll D oug la s C o rp . v . G reen , 411 U .S . 792 , 802 -03 (1973 )

(T itle V II) . See Sp iege l v . S chu lm ann , 604 F .3d 72 , 80 (2d C ir . 2010 ) (N ew Y o rk H um an

R igh ts L aw ) ; Lopez v . S .B . Thom as , Inc ., 831 F .2d 1184 , 1187 -88 (2d C ir. 1987 ) (§ 1981 ) .

2

O n appea l, L aw rence subm its tha t the d is tric t cou rt e rred in conc lud ing tha t he cou ld no t

e stab lish a p rim a fac ie case o f d isc rim ina tion becau se M eh lm an ’s June 9 , 2005 rep rim and

– w h ich w as d isavow ed soon the rea f te r – d id no t , as a m a tte r o f law , con s titu te adve rse

emp loym en t ac tion . See , e .g ., M a th irampuzha v . Po tte r, 548 F .3d 70 , 78 (2d C ir . 2008 )
1

(ho ld ing tha t p la in tiff mu s t show “he su ffe red an adve rse emp loym en t ac tion” ); W illiam s v .

R .H . D onne lley , C o rp ., 368 F .3d 123 , 128 (2d C ir . 2004 ) (a ffirm ing summ a ry judgm en t fo r

emp loye r w he re , in te r a lia , p la in tiff fa iled to e stab lish tha t re fu sa l o f tran sfe r “con stitu ted an

adve rse em p loym en t ac tion , as requ ired unde r the th ird p rong o f the T itle V II p rim a fac ie

ca se” ) .

R ep rim and s o r n ega tive eva lua tion lette rs m ay , in som e c ircum stances, con stitu te

adverse em p loym en t ac t ion , see Z e ln ik v . Fash ion Ins t . o f T ech ., 464 F .3d 217 , 226 (2d C ir.

2006 ) ; Sanders v . N .Y . C i ty H um an R es . A dm in . , 361 F .3d 749 , 755 -56 (2d C ir. 2004 ) ;

T reg lia v . Tow n o f M an lius, 313 F .3d 713 , 720 (2d C ir. 2002 ); bu t cf . W eek s v . N .Y . S tate

(D iv . o f Pa ro le ), 273 F .3d 76 , 86 (2d C ir . 2001 ) , ab roga ted on o the r g round s by N a tiona l

R .R . Pa ssenge r C o rp . v . M o rgan , 536 U .S . 101 (2002 ) , and w he the r they do is typ ica lly a

que stion o f fac t fo r the ju ry , see Sanders v . N .Y . C ity H um an R e s . A dm in ., 361 F .3d a t 756 .

H e re , how eve r, the reco rd show s tha t, a fte r fu rthe r investiga ting the M ay 26 , 2005 inc iden t,

O n June 9 , 2005 , M eh lm an sen t L aw rence a m em o randum adv ising h im tha t he d id
1
no t ac t app rop ria te ly in fa iling to see a pa tien t w ho had su ffe red a m isca rriage on M ay 26 ,
2005 , and on Ju ly 6 , 2005 , the NEP p residen t sen t L aw rence a le tte r dem and ing h is
acknow ledgm en t tha t he w ou ld fo l low M eh lman ’s in s truc t ion s regard ing the ho sp i ta l’s
s tanda rd o f ca re .

3

ho sp ita l o ffic ia ls conc luded tha t L aw rence d id , in fac t, fo llow the app rop ria te standa rd o f

ca re . A cco rd ing ly , on Ju ly 19 , 2005 , John Pe llicone , the ch ie f m ed ica l o ffice r a t N yack

H o sp ital, sen t L aw rence a m em o randum sta ting tha t “th e re is now enough ev idence to

ind ica te tha t a ll s tanda rd s o f ca re w e re me t . A ny p rev iou s co rre spondence c ritiqu ing you r

ac tion s w [as] p rem a tu re and lack [ed ] com p le te in fo rm a tion .” Pe ll icon e A ff . ¶ 8 . Thu s ,

becau se he w a s clea red o f any w rongdo ing , L aw rence’s c la im reduces to a comp la in t abou t

the lim ited e ffec t o f a ha stily issued and sw iftly d isavow ed rep rim and .

L aw rence c ite s no ca se ho ld ing tha t a rep rim and , w ithd raw n w ith in s ix w eek s, rise s

to the lev e l o f “a m a ter ially adve rse change in the term s and cond ition s o f em p loym en t.”

M a th iram puzh a v . Po t ter , 548 F .3d a t 78 ( in terna l quo ta tion m ark s and em phas is om i tted) ;

see a lso B eye r v . C oun ty o f N a ssau , 524 F .3d 160 , 164 (2d C ir . 2008 ) (“ [W ]e requ ire a

p la in tiff to p ro ffe r ob jec tive ind ic ia o f m a te ria l d isadvan tage ; ‘sub jec tive , pe rsona l

d isappo in tm en t’ is no t enough .” (b racke ts om itted ) (quo ting W illiam s v . R .H . D onne l ley ,

C o rp ., 368 F .3d a t 128 )) ; c f. Sande rs v . N .Y . C ity H um an R e s . A dm in ., 361 F .3d a t 756

(a ffirm ing ju ry ve rd ic t fo r emp loye r w he re c ritica l eva lua tion w a s removed from file and

p rom o tion to supe rv iso r becam e pe rm anen t) . W h ile Law rence a sse rts repu ta tiona l in ju ry ,

tha t a rgum en t fa ils fo r the rea son s ta ted by the d is tric t cou rt: the re is no ev idence o f

defendan ts’ pub l ic iz ing the rep r im and ; thu s , any such in jury resu l ted so le ly from L aw rence ’s

pub lica tion o f the rep rim and to ga in suppo rt among h is ho sp ita l co lleagues . Fu r the r, to the

ex ten t L aw rence com p la in s ab ou t h is sub jec t ive , pe rson a l d isappo in tm en t reg ard ing sh ift

4

a ss ignm en ts bo th be fo re and afte r the cha llenged rep r im and , h is c la im tha t he w a s g iven

few e r sh ifts o r le ss de sirab le sh ifts is en tire ly specu la tive . L aw rence p rov ide s no ho sp ita l

reco rds to spec ify the d a tes o f a l leg ed sh ift reduc t ion s , and no ev iden ce o f w h ich doc tors

rece ived m o re o r be tter sh ift assignm en ts than he d id . A cco rd ing ly , like the d istric t cou rt,
2

w e conc lude tha t the reco rd w ou ld no t pe rm it a rea sonab le ju ry to find tha t the cha llenged

d isavow ed rep r im and , by i tse lf , su ff ic ien t ly a ffec ted the term s and cond i tion s o f L aw rence ’s

emp loym en t to con stitu te an adve rse emp loym en t ac tion .

L aw rence a lso ch a l lenges the d is tr ic t cou r t’s de term ina t ion tha t he cou ld no t sa tisfy

the fina l p rong o f a p rim a fac ie d isc rim ina tion ca se , name ly , a show ing o f su rround ing

c ircum s tances pe rm itting an in fe rence o f d isc rim ina tion . See B eye r v . C oun ty o f N a ssau ,

524 F .3d a t 163 . L aw rence con tend s tha t such an infe rence w as suppo rted by the d ispa ra te

trea tm en t o f M a rk K h ilnan i, a non -A frican -Am e rican doc to r on du ty on M ay 26 , 2005 , w ho

d id no t rece ive a s im ila r rep rim and . The reco rd show s , how eve r, tha t Law rence and K h ilnan i

w e re no t “ sim ila rly s itua ted in a ll m a te ria l re spec ts” becau se (1 ) N yack ho sp ita l o ffic ia ls no t

cha rged w ith d isc rim ina tion comp la ined abou t L aw rence’s conduc t, bu t no t K h ilnan i’s ; and

(2) L aw rence , the fo rm er in ter im em ergen cy dep ar tm en t d irec tor , w as s ign ifican t ly m o re

In h is b r ie f , L aw rence a lso c ites h is ow n d epo s ition tes timony tha t “ the re w as a
2
d iscu ss ion in the g roup” du ring w h ich o the r doc to rs exp re ssed the ir v iew tha t L aw rence
rece ived w o rse sh ift ass ignm en ts b ecau se o f h is race . L aw rence D ep . T r . a t 177 . In
rev iew ing the d is tric t cou r t’s aw a rd o f summ a ry judgm en t, L aw rence’s hea rsay accoun t o f
doc tors’ s ta tem en ts of op in ion is no t adm iss ib le in ev iden ce . See Fed . R . C iv . P . 56 (e)(1) ;
Fed . R . Ev id . 802 .

5

expe rienced than K h ilnan i, a recen t m ed ica l schoo l g radua te . M ande ll v . C oun ty o f Su ffo lk ,

316 F .3d 368 , 379 (2d C ir . 2003 ); acco rd G raham v . Long Is land R .R ., 230 F .3d 34 , 39 (2d

C ir . 2000 ) . The reco rd doe s ind ica te , how eve r, tha t M eh lm an m ade rac ia lly in sen sitive

comm en ts on seve ra l occas ion s . N eve rthe le ss , becau se Law rence h a s fa iled to adduce
3

ev iden ce o f adverse em p loym en t ac t ion , w e n eed no t here dec ide w he the r M eh lman ’s

rema rk s a re su ffic ien t, even in the ab sence o f d ispa ra te trea tm en t, to pe rm it an in fe rence o f

d isc rim ina tion in th is ca se .

W e have con side red Law rence’s o the r a rgum en ts on appea l and conc lude tha t they

a re w ithou t m e rit. A cco rd ing ly , w e A FF IRM the judgm en t o f the d istric t cou rt.

FOR TH E COURT :
CATHER INE O ’HAGAN W OLFE , C lerk o f Cou r t

L aw rence does no t as se rt tha t “ th e w o rkp lace w as so seve re ly pe rm ea ted w ith
3
d isc r im ina to ry in tim ida t ion , r id icu le , and insu l t tha t the te rm s and cond ition s o f [h is]
emp loym en t w e re the reby a lte red .” F inche r v . D epo sito ry T ru st & C lea ring C o rp ., 604 F .3d
712 , 723 -24 (2d C ir. 2010 ) (d iscu ss ing e lem en ts of ho s t ile w o rk env ironm en t c la im ) .

6

Lection v. Dyll,

REVERSE and REMAND and Opinion Filed June 20, 2001

Leal v. Sec’y, U.S. Dep’t of Health and Human Servs. (Summary)

NPDB REPORTING

Leal v. Sec’y, U.S. Dep’t of Health and Human Servs., No. 6:08-cv-1062-Orl-22GJK (M.D.Fla. Sept. 15, 2009)

The United States District Court for the Middle District of Florida, Orlando Division, upheld a decision by the Secretary of HHS denying a physician’s request to void an adverse action report that was filed with the National Practitioner Data Bank. The Secretary found that the report was accurate and that the suspension of the physician’s clinical privileges following an incident in which he displayed “violent, threatening, and physically destructive and damaging behavior” was a reportable event. The court ruled that both of those findings were supported by substantial evidence, noting that the physician confirmed that the incidents cited by the hospital for imposing the suspension in fact occurred. The court held that the Secretary was correct in rejecting the physician’s argument that the suspension was not reportable “because his alleged conduct did not pose an imminent danger to the health of any individual, was not the result of a professional review action, and was unrelated to professional competence or conduct that adversely affected the health or welfare of a patient.”

Lawrence v. Nyack Emergency Physicians (Full Text)

rsiUNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

PETER LAWRENCE, M. D. ,

Plaintiff,

06 Civ. 3580

OPINION

NYACK EMERGENCY PHYSICIANS, P.C.,
DR. IRA MEHLMAN, As Aider and
Abettor,

Defendants

A P P E A R A N C E S :

ELECTRONICALLY FILED

Attorneys for Plaintiffs

SUSSMAN & WATKINS
40 Park Place
P.O. Box 1005
Goshen, New York 10924
By: Michael H. Sussman, Esq.

Attorneys for Defendants

KEANE & BEANE, P.C.
445 Hamilton Avenue, 1 5 ~ ~
Floor
White Plains, New York 10601
By: Edward F. Beane, Esq.
Donna E. Frosco, Esq.

S w e e t , D . J .

Defendants Nyack Emergency Physicians, P. C.

(“NEP”) , Dr. Ira Mehlman D r . Mehlman”) (collectively, the

“Defendants”) have moved pursuant to Rule 56, Fed. R. Civ.

P., to dismiss the discrimination complaint of plaintiff
Dr. Peter Lawrence (“Dr. Lawrence” or the ‘Plaintiff”) .

Upon the facts and conclusions set forth below, the motion

is granted, and the complaint dismissed.

The unjustified letter of reprimand issued by Dr.

Mehlman does not constitute a racially motivated adverse

employment action under the unfortunate circumstances

revealed by the consolidated factual statements of the

parties.

I. BACKGROUND

A .

P r i o r P r o c e e d i n g s

The complaint in this action was filed by Dr.

Lawrence on May 11, 2006.

It alleged claims of race

discrimination under 42 U.S.C. § 1981(a) and Title VII of

the Civil Rights Act of 1964 (as amended), as well as under

the New York State Executive Law Section 296.

Discovery proceeded and the submission of

materials relating to the instant motion was completed on

February 21, 2008. The action was reassigned to this Court

on June 5, 2009.

B. The Facts

The facts are set forth in the Defendants’

Statement of Undisputed Facts Pursuant to Local Rule 56.1

(“Defendants’ Statement”), the Plaintiff’s Response to

Defendants’ Statement of Undisputed Facts Pursuant to Local

Rule 56.1 and Counterstatement of Facts (“Plaintiff’s

Response”), Defendants’ Reply to Plaintiff’ s Response to

Defendants’ Statement of Undisputed Facts Pursuant to Local

Rule 56.1 and Response to Plaintiff’s Counterstatement of

Facts

(“Defendants’ Reply”) ,

and

the

accompanying

affidavits and declarations. Despite the details thus set

forth and the parties’ contentions with respect to

admissibility, the material facts are not in dispute except

as noted below.

NEP (formerly known as Nyack Principal’s Group,

Inc.) is a New York professional corporation that provided

management and professional medical services for the

Emergency Department (the “ED”) at Nyack Hospital.

In

September or October, 2002, NEP was retained by Nyack

Hospital to manage the ED and provide emergency medical

services at the hospital.

The contract between NEP and

Nyack Hospital was eventually ended by mutual agreement at

the initiative of NEP due to financial considerations.

Dr. Mehlman is a medical doctor licensed to

practice medicine in the State of New York, was employed by

NEP, and served as Director of the ED at Nyack Hospital.

Dr. Mehlman is white.

Dr. Lawrence, an African-American, is a medical

doctor and also has a law degree. He was employed by NEP

as an emergency room physician. From the inception of its

contract with Nyack Hospital in 2002 until the end of the

contract on October 31, 2006, NEP employed Dr. Lawrence as

a staff physician in the ED.

Dr. Joseph Degioanni (“Dr. Degioanni”) is a

medical doctor serving as President of NEP. He is board

certified in Aerospace Medicine and Emergency Medicine.

During the events from which this lawsuit arises,

David Freed (“Freed”) served as Chief Executive Officer of

Nyack Hospital. Dr. John Pellicone (“Dr. Pellicone”) was

Chief Medical Officer of the Nyack Hospital Medical Staff

and oversaw quality control issues at the hospital,

including management of the ED.

Dr. Richard King (“Dr.

King”) was President of the Medical Executives of Nyack

Hospital.

Upon assuming operations of the Nyack Hospital

ED, NEP initially hired the majority of ED physicians then

employed in the Nyack Hospital ED, including Dr. Lawrence.

NEP also recruited an outside physician, Dr. Chachkes, to

serve as the Director of the ED.

Dr. Chachkes was

subsequently terminated at the request of Freed.

Upon the departure of Dr. Chachkes, a search for

a new permanent Director was undertaken, and Dr. Lawrence

was appointed as Interim Director of the ED. Freed agreed

to the appointment of Plaintiff as Interim Director. At

the request of Dr. King, Plaintiff also interviewed for the

permanent position of Director of the ED.

Although Dr. Degioanni did not make any

recommendations concerning who should be hired as the

permanent Director, he did inform Freed that Plaintiff “had

done a good job” in the ED. Ex. V to Decl. in Supp. of

Defs.’ Mot. for S u m . J. (“Beane Decl.”) at 39:23-40:21.

Dr. Degioanni presented a number of candidates, including

both Dr. Mehlman and Dr. Lawrence, to a selection committee

appointed by Nyack Hospital. The decision as to whom NEP

should hire as the permanent Director of the ED was made by

the selection committee.

During his interview, Dr. Lawrence informed the

selection committee that he had come to the interview

because of his friendship with Dr. King and that ‘if the

hospital wants me to be the director, I would be glad to do

that, but my personal wish is that I don’t want to do that

job.”

Ex. 3 to Affirm. in Resp. to Defs.’ Statement of

Undisputed Facts Pursuant to Local Rule 56.1 (“Sussman

Aff . ” ) at 41: 15-24.

Dr. Mehlman had not been employed previously at

Nyack Hospital at the time he applied for the position of

Director of the ED.

Following the interviews, Freed informed Dr.

Degioanni of the committee’s selection of Dr. Mehlman as

the permanent Director of the Nyack ED, and NEP thereafter

hired Dr. Mehlman as such.

Dr. Mehlman commenced his employment as Director

of the Nyack ED in late autumn 2003. From the beginning of

Dr. Mehlman’s employment by NEP, his intention, which he

communicated to NEP, was to stay at Nyack Hospital for only

two to three years.

Dr. Mehlman eventually served as

Director of the ED until November 2005, at which time a new

ED Director was identified and hired.

Thereafter, Dr.

Mehlman served as Associate Director through January 2006

and then as a staff physician from January 2006 until early

November 2006.

Dr. Lawrence testified that Dr. Mehlman, as the

Director of the ED, was his “boss” and had administrative

responsibility for the ER, including the assignment of

shifts to the ED staff physicians. Sussman Aff. Ex. 3 at

216:2. In assigning shifts, Dr. Mehlman solicited from the

ED staff physicians their preferences concerning shifts and

generated a matrix to be completed by each ED physician

concerning his or her preferences for (a) number of shifts

and (b) times of shifts.

Dr. Lawrence routinely requested to work only day

shifts and no Sundays.

During Dr. Mehlman’s tenure as

Director of the ED, Dr. Lawrence was the only doctor who

requested that he not be assigned night shifts or any

shifts on Sundays.

According to Dr. Mehlman, Dr.

Lawrence’s

requests were incompatible with staffing

requirements for the ED and unfair to the other staff

physicians. However, Dr. Lawrence was not the only staff

physician who did not have all of his or her requests

concerning shifts granted.

Dr. Mehlman did not assign six shifts in

consecutive days to the same staff physician if such

scheduling could be avoided, as each shift is 12 hours and

such an assignment could raise safety issues. On occasion,

however, Dr. Mehlman did assign Dr. Lawrence to six

consecutive shifts.

According to Dr. Mehlman, prior to the incident

that occurred in the evening of May 26, 2005, from which

this lawsuit originates (the “May 26 Incident”), Dr.

Lawrence never complained about the assignment of shifts, a

contention denied by Dr. Lawrence.

Doctors employed by NEP in the Nyack ED typically

worked 13 to 18 shifts per month.

According to Dr.

Lawrence, Dr. Mehlman reduced his shifts per month from 17-

23 to 8-11. However, Dr. Lawrence never submitted written

complaints of any kind to Dr. Mehlman’s superiors at NEP

concerning scheduling issues.

After Dr. Mehlman stepped down as Director of the

ED, Dr. Lawrence requested fewer shifts because he was also

employed in the emergency department of another hospital.

According to Dr. Lawrence, he worked in the emergency rooms

of both Phelps Memorial Hospital and Passcack Valley

Hospital while employed at Nyack Hospital due to the

reduction in the number of shifts to which he was assigned

at Nyack Hospital.

Dr. Lawrence also recognized that in addition to

his authority to assign shifts to staff physicians in the

ED, Dr. Mehlman possessed the authority to set policies for

the ED with which Dr. Lawrence was required to comply.

During the time Dr. Mehlman was Director, there

existed a policy concerning “linkage” between doctors and

mid-level providers which was communicated to the ED staff.

A mid-level provider is also known as a “physician

extender,” and is a physician assistant or nurse

practitioner.

As Director, Dr. Mehlman promulgated

additional policies emphasizing this “linkage” requirement.

Dr. Lawrence has testified that he was aware of the various

policies

concerning

mid-level

providers/physician

assistants issued by NEP prior to May 26, 2005.

Dr. Lawrence has alleged that during his time as

Director, Dr. Mehlman made several racially offensive

statements, including “My father did a lot for Black

people;” “I ran into John Coltrane’s nephew this weekend;”

“We’ve got good doctors here – we have Dr. Lawrence, the

good-looking black guy that can dance, and Dr. Rymond, who

went to Harvard;” “Dr. Lawrence works on Jamaican time.

Screw Jamaican time.”

Pl.’s Aff. in Resp. to Defs.’

Statement of Undisputed Facts Pursuant to Local Rule 56.1

(“Lawrence Aff . ” ) ¶ 24.

Dr. Mehlman has denied making

these statements. Dr. Lawrence, however, never asked Dr.

Mehlman to refrain from making these comments prior to the

May 26 Incident, although Dr. Lawrence has contended that

he told Dr. Degioanni in June 2004 about his belief that

Dr. Mehlman harbored racial animus towards him.

Dr.

Lawrence also testified that he informed Dr. King of his

belief that Dr. Mehlman was discriminating against him on

the basis of race.

Dr. Degioanni testified that he was not aware of

any conflict between Dr. Lawrence and Dr. Mehlman prior to

the May 26 Incident. Dr. Degioanni also does not recall

any complaints by Dr. Lawrence or any other physician in

the ED concerning Dr. Mehlman’s conduct prior to May 2005.

Dr. Lawrence, however, has contended that in addition to

his complaints to Dr. Degioanni, other doctors complained

in meetings about Dr. Mehlman’s unresponsiveness to their

concerns about the operations of the ED.

As admitted by Dr. Lawrence, the Complaint was

incorrect when it asserts that Plaintiff was the only

African-American employed by NEP in the Nyack Hospital ED.

In fact, Dr. Sam Jones (“Dr. Jones”) was an African-

American physician employed in the ED on the date of the

Complaint.

Dr. Augustine Alifo was another African-

American physician offered employment in the ED as

Assistant Director during the time Dr. Lawrence was

employed by NEP.

Dr. Deborah White, an African-American

woman, also was offered employment in the ED during

Plaintiff’s employment with NEP.

The May 2 6 , 2005 I n c i d e n t

On the evening of May 26, 2005, an incident

occurred in the Nyack Hospital ED involving a patient who

had suffered a miscarriage. Dr. Lawrence was a physician

on duty that day in the ED from 12:OO noon to 12:OO a.m.

Another physician, Dr. Mark Khilnani D r . Khilnani”) was a

physician on duty in the ED from 7:00 p.m. to 7:00 a.m. the

next morning.

Dr. Khilnani, a recent medical school

graduate, was less experienced than Dr. Lawrence and is not

African-American. Dr. Mehlman was not working in the ED on

the evening of May 26, 2005.

In a statement dated June 16, 2005, Dr. Lawrence

stated that he was notified at 6:35 pm that the patient had

arrived in the ED.

During his deposition, however, Dr.

Lawrence contended the notification was after 7 p.m. After

being notified of the patient’s arrival, Dr. Lawrence

advised Chris Genovese (“Genovese”), the nurse who informed

him of the presence of the patient, to contact a mid-wife

from the Obstetrics Department and to place the patient’s

chart on the board to be seen by the next available

physician. According to Dr. Lawrence, Genovese stated that

the patient did not need to be seen immediately.

Dr.

Lawrence also asserts that there was no requirement that a

patient be seen by a particular ED physician.

The patient remained in the ED during the

remainder of Dr. Lawrence’s shift. The patient’s emotional

state apparently degraded during the time she was in the

emergency room, resulting in her call to the police

alleging that she had been assaulted in the ED.

In

response, a police officer was dispatched to the Nyack

Hospital ED.

At the time of the police officer’s arrival in

the ED, Dr. Lawrence was the ED physician on duty with the

most seniority. According to Dr. Lawrence, he was busy

caring for patients when the officer arrived in the ED, and

Dr. Khilnani was physically closer to the officer.

Dr.

Lawrence testified that he eventually approached the

officer, who had not asked for assistance, and inquired

into the purpose of his presence.

In response, Dr.

Lawrence received what he characterized as a “vague” answer

that did not identify the patient as the reason for the
police presence. Lawrence Af f . ¶ 5. However, the officer

did state that he had received a call to come to the ED and

asked Dr. Lawrence to speak with “someone in charge.”

Beane Decl. Ex. U at 108:15-18. Dr. Lawrence referred the

officer to Genovese and told her to let him know if he or

the attending physician could do anything to help.

Dr.

Lawrence did not see the patient during the remainder of

his shift.

Although the patient was seen by a mid-wife from

the Obstetrics Department, as directed by Plaintiff, as

well as a physician’s assistant, no ED physician interacted

with the patient until the early morning hours of May 27,

2005.

On May 27, 2005, Dr. Degioanni learned of the

previous evening’s incident in the ED via a phone call from

Freed.

Dr. Mehlman was first informed of the May 26

Incident by Freed as well. On May 27, 2005, Freed removed

the Dr. Mehlman from his clinical duties to confront him

about the incident. This interruption of clinical duties

was a unique event.

During the conversation, Freed

specifically identified Dr. Lawrence as someone involved in

the May 26 Incident. Dr. Mehlman informed Freed that he

had not been present in the ED during the previous evening,

that he did not know why Plaintiff had not seen the patient

in question, but did note that, although it was important

for the patient to be seen for humanistic and other

reasons, the patient may not have presented a medical

emergency and Dr. Lawrence may have been busy with more

critical patients.

Dr. Mehlman admitted that, after being informed

of the May 26 Incident, he must have spoken with Jessica

O’Brien (“O’Brien”) at some point about her report of the

incident, but could not recall any part of that

conversation.

Dr. Mehlman could not recollect speaking

with the midwife on the case or with the obstetrician on

call that night, Dr. Nicholas Klein, who supervised the

midwife attending to the patient.

Following his discussion with Freed, Dr. Mehlman

sent an e-mail to Dr. Lawrence on May 27, 2005, seeking

information concerning the events of the previous evening

and stating though there had not been a medical emergency

there

was

a

“humanistic,

social,

litigious

and

administrative emergency.” Sussman Aff. Ex. 1. On May 28,

2005, Dr. Mehlman again e-mailed Dr. Lawrence concerning

the events of the evening of May 26, 2005, to convey his

concern that Dr. Lawrence did not understand the severity

of the situation. Dr. Lawrence considered Dr. Mehlman’ s

May 27, 2005 e-mail to constitute criticism of his actions.

The Complaint did not allege that Dr. Mehlman blamed Dr.

Lawrence for any prior problems in prior cases.

According to Dr. Lawrence, he responded to both

of Dr. Mehlman’s e-mails in a May 29, 2005 e-mail in which

he referred to recommendations he had made for managing the

ED and suggested that Dr. Mehlman contact Genovese or Dr.

Khilnani. Whether or not this e-mail was responsive to Dr.

Mehlman’s e-mails is an issue of fact.

However, it is

undisputed that Dr. Lawrence never spoke with Dr. Mehlman

about the May 26 Incident.

Dr. Lawrence forwarded the e-mails to other

individuals, thereby disclosing their contents, and

discussed the May 26 Incident and e-mails from Dr. Mehlman

with other members of the group in addition to NEP and

Nyack Hospital personnel.

Dr. Lawrence also posted a document in the ED

which presented two questions to the staff of the ED

concerning the May 26 Incident:

RE:
GROUP

CUSTOM AND PRACTICE IN NYACKS PRINCIPALS

FACTS :
On May 26, 2005, at around 18:35PM,
Assistant Nurse Manager, Chris Genovese RN,
informed me of a patient, M.P., that may have
miscarried.
I responded that I could not see
this patient because I was currently managing
five (5) active cases. I asked and was told that
the patient was stable. I then told her to put
the patient in the Gyn room, call the OB midwife,
and put the patient up “next” to be seen, by the
“next” available provider.

The OB midwife saw the patient promptly.
PA
Jessica O’Brien, a MLP, saw the patient when she
came on shift. Dr. Khilnani was the 7P-7A doctor
and Nathaniel Silverberg MD, was going off as the
7A-7P doctor. I was on the 2P-12MN shift.

P.A. Jessica O’Brien did not endorse the case to
me.
I was never asked to see the patient.
Assistant Nurse Manager Chris Genovese never
asked me to get involved in any issues involving
the case.

QUESTION :
facts.

On the basis of these undisputed

1) Under current and existing custom and
practice patterns, was Dr. Lawrence physician of
record and the responsible physician for this
patient on the facts stated? Please sign in the

space below and answer ‘Yes’ or ‘No’ beside your
signature.

2) Are you aware of any rules or regulations in
existence at the time that would require Dr.
Lawrence to be the responsible physician, or the
physician of record, in this case, given the same
set of facts? Please sign in the space below and
answer “yes” or “no” beside your signature.

Lawrence Aff. Ex. 1. Eleven individuals, including eight

doctors, signed “No” beneath each question.

No doctor

signed ‘Yes’.

All the emergency room doctors except Dr.

Mehlman signed “No”.

On June 8, 2005, Dr. Lawrence wrote to the Chief

of the Medical Staff, Dr. Howard Feldfogel

(“Dr.

Feldfogel”) accusing Dr. Mehlman of orchestrating the facts

in a manner negative to him and harboring racial animosity

towards him. Dr. Lawrence also requested the convening of

an emergency peer review of the relevant patient.

According to Dr. Lawrence, the Director and Assistant

Director of Peer Review, Dr. Clement Osei (“Dr. Osei”) and

Dr. Arthur Kozin (“Dr. Kozin”), respectively, and Dr.

Lawrence appeared, as scheduled, for peer review. Freed

then arrived and stated that peer review was cancelled,

that the problem was solved, and there was no need for peer

review. At no time did Dr. Degioanni request peer review

of the May 26 Incident.

During his employment with NEP, Dr. Lawrence was

aware that Nyack Hospital officials had direct say in the

manner in which he performed his job, and if he did

something that displeased the hospital management, such

displeasure would be communicated to him either directly or

through the ED Director. Such situations arose with other

NEP physicians, not only Dr. Lawrence. In those instances,

Dr. Mehlman would issue, after prior review, a letter

concerning deficiencies in the employee’s conduct to be

included in the employee’s file. Dr. Degioanni had also,

on occasion, issued letters to other ED staff physicians

which were not enforced, such as a letter of termination.

Following the May 26 Incident, Freed directed Dr.

Mehlman to issue a written reprimand to Plaintiff.

Dr.

Mehlman issued a letter of reprimand to Plaintiff dated

June 9, 2005 (the “June 9 Letter”).

According to Dr.

Mehlman, it was “unfathomable” that the senior doctor in

the department would not become involved when a situation

had deteriorated to the point of police involvement but

would instead take the police officer to a nurse manager.

Beane Decl. Ex. E. Dr. Degioanni agreed with the reprimand

because of Dr. Lawrence’s refusal to admit that he had any

amount of responsibility whatsoever for the May 26

Incident.

Dr. Mehlman did not reprimand any of the other

physicians on the same shift as Dr. Lawrence.

The June 9 Letter had no impact on Plaintiff’s

compensation, benefits, privileges or responsibilities as a

staff physician in the Nyack Hospital ED although,

according to Dr. Lawrence, he continued to receive fewer

shifts thereafter.

Dr. Lawrence testified that his objection to the

June 9 Letter is not that it was issued only to him, rather

than to both him and Dr. Khilnani, but that he was

criticized and assigned any responsibility for a situation

in which he was not involved. Dr. Lawrence testified that

he would have the same objection to the June 9 Letter if it

had also been issued to the other doctors on duty the

evening of May 26, 2005.

The June 9 Letter was subsequently rescinded by

Dr.

Pellicone following the receipt of additional

information from other staff members at the ED, and no such

letter is now contained in the files of Nyack Hospital.

On July 6, 2005, Dr. Degioanni wrote, in a letter

to Dr. Lawrence regarding the May 26 Incident (the “July 6

Letter”): “As an ED doctor, you must be involved in patient

issues as soon as possible and proactively.

As an ED

doctor, it is your responsibility to be aware of the

medical, administrative and humanistic needs of the

patients at all times.” Beane Decl. Exh. F. The letter

went on to state, “I need to know that on a going forward

basis you are wiling and able to abide by Dr. Mehlman’s

instructions, and that you are willing and able to follow

standard of care procedures expected of an ED doctor as

discussed in this letter.” Id. The letter also requested

that Dr. Lawrence agree to the terms of the letter by

signing it, which Dr. Lawrence refused to do.

Dr. Degioanni issued the July 6 Letter because he

felt Dr. Lawrence was unwilling to be responsive to the

concerns of NEP and Nyack Hospital and took neither

criticism nor input well.

Dr. Degioanni did not send a

similar letter to any other doctor present in the ED during

the evening of May 26, 2005.

Following communications by Dr. Lawrence with

Freed and Dr. Pellicone, the July 6, 2005 letter written by

Dr. Degioanni to Dr. Lawrence was never enforced or

otherwise acted upon.

NEP did not pursue requiring Dr.

Lawrence to sign the letter and did not discipline Dr.

Lawrence in any manner for his failure to sign except,

according to Dr. Lawrence, to continue the reduction in his

shifts.

On July 25, 2005, Dr. Khilnani wrote in a letter

to Dr. Mehlman, “I don’t feel that Dr. Lawrence should be

held accountable for any deleterious actions that may have

occurred from the treatment and disposition of the

infamous, landmark gyn-pa case. I am not shocked that you

believed that Dr. Lawrence was responsible for the case, as

you were not present that night, you were not feeling the

pulse of the emergency room and the severity of the cases

that Dr. Lawrence and myself were handling, and perhaps you

did not have complete information at your disposal when you

formed your opinion.” Lawrence Aff. Ex. 6.

Prior to filing the Complaint, Dr. Lawrence

timely filed a complaint with the United States Equal
Employment Opportunity Commission (“EEOC”) . The Defendants

denied the claims set forth in the EEOC complaint and the

complaint was dismissed via a Dismissal and Notice of Right

to Sue letter issued by the EEOC on or about February 24,

2006.

11. DISCUSSION

A.

The Applicable Standards

1.

Summary Judgment

Summary judgment is granted only where there

exists no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986); SCS Commc’ns, Inc. v. Herrick Co., 360 F.3d

329, 338 (2d Cir. 2004). The courts do not try issues of

fact on a motion for summary judgment, but, rather,

determine “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it

is so one-sided that one party must prevail as a matter of

law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-

52 (1986).

“The party seeking summary judgment bears the

burden of establishing that no genuine issue of material

fact exists and that the undisputed facts establish [its]

right to judgment as a matter of law.” Rodriguez v. City

of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In

determining whether a genuine issue of material fact

exists, a court must resolve all ambiguities and draw all

reasonable inferences against the moving party. – See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18

(2d Cir. 2002). However, “the non-moving party may not

rely simply on conclusory allegations or speculation to

avoid summary judgment, but instead must offer evidence to

show that its version of the events is not wholly

fanciful.” Morris v. Lindau, 196 F.3d 102, 109 (2d Cir.

1999) (internal quotes omitted); Fletcher v. Atex, Inc., 68

F.3d 1451, 1456 (2d Cir. 1995) (“Finally, mere conclusory

allegations or denials in legal memoranda or oral argument

are not evidence and cannot create a genuine issue of fact

where none would otherwise exist.” (internal quotes and

citation omitted)). Summary judgment is appropriate where

the moving party has shown that “little or no evidence may

be found in support of the nonmoving party’s case. When no

rational jury could find in favor of the nonmoving party

because the evidence to support its case is so slight,

there is no genuine issue of material fact and a grant of

summary judgment is proper.” Gallo v. Prudential

Residential Servs., L.P., 22 F.3d 1219, 1223-24 (2d Cir.

1994) (citations omitted).

Where a claim involves a subjective component,

such as racially discriminatory intent, “there must be

solid circumstantial evidence to prove plaintiff’s case” in

order to establish a material issue of fact. Verri v.

Nanna, 972 F. Supp. 773, 783 (S.D.N.Y. 1997).
–

2 .

Title VII Claims

“Title VII’ s core substantive anti-discrimination
provision makes it an unlawful employment practice . . . to
discriminate against any individual with respect to the

compensation,

terms,

conditions,

or

privileges

of

employment, because of such individual’s race, color,
. .
religion, sex or national origin .
. ” Kessler v.
Westchester County Dep’t of Social Servs., 461 F.3d 199,

206 (2d Cir. 2006) (citing 42 U.S.C. § 2000e-2(a)). The

Supreme Court has outlined a three step, burden-shifting

analysis for race discrimination claims brought under Title

VII.

The burden initially rests upon the plaintiff to

establish a prima facie case of discrimination. McDonnell

Douglas Corp. v. Greene, 411 U.S. 792, 802-05 (1973); – see

also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-08

(1993); Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 252-53 (1981). Establishing a prima facie case of

discrimination requires the plaintiff demonstrate, by a

preponderance of admissible evidence, that (1) he is a

member of a protected class; (2) he satisfactorily

performed his job duties; (3) he suffered an adverse

employment action; and (4) the adverse employment action

occurred under circumstances giving rise to an inference of

discriminatory intent. – See Terry v. Ashcroft, 336 F.3d

128, 138 (2d Cir. 2003); see also Zahorik v. Cornell Univ.,

729 F.2d 85, 92 (2d Cir. 1984).

Where a plaintiff is

unsuccessful

in

satisfying

these

criteria

by

a

preponderance of the admissible evidence, summary judgment

is warranted and the case is dismissed.

If a plaintiff successfully establishes a prima

facie case of discrimination, the burden of production

shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the challenged employment

decision. See St. Mary’s Honor Ctr., 509 U.S. 506-07. If

the employer articulates a legitimate reason for its

employment actions and decisions, the presumption of

discrimination triggered by the prima facie case drops from

the analysis.

The focus then turns to the plaintiff’s

ultimate burden of persuasion to demonstrate by a

preponderance of the evidence that the challenged

employment decision was the result of intentional

discrimination. – –
See id. at 509-11. Thus, the plaintiff

must show that his race is a motivating factor in the

employer’s decision-making process and had a determinative

influence on the outcome.

Luciano v. Olsten Corp., 110

F.3d 210, 219 (2d Cir. 1997). It is at this point that the

plaintiff may seek to establish that the defendant’s stated

justification for the adverse employment action is, in

fact, a pretext for discrimination.

Id. at 215.

The

plaintiff may not establish the existence of an issue of

material fact concerning the pretextual nature of the

justification “by offering purely conclusory allegations of
discrimination, absent any concrete particulars . . . . ( I

Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985).

In considering claims brought pursuant to 42

U.S.C. § 1981, the same analytical framework used in a

Title VII discrimination claim is applied.

Anderson v.

Hertz Corp., 507 F. Supp. 2d 320, 326-27 (S.D.N.Y. 2007).

Similarly, the law is well settled that “claims brought

under the New York State’s Human Rights Law [New York State

Executive Law § 2961 are analytically identical to claims

brought under Title VII.” Torres v. Pisano, 116 F.3d 625,

629 n.1 (2d Cir. 1997), cert. denied, 522 U.S. 997 (1997);

Anderson, 507 F. Supp. 2d at 327.

B. Plaintiff Has Not Established a Prima Facie Case
of Discrimination

1.

Plaintiff Cannot Establish the Existence of
an Adverse Employment Action

As the Second Circuit has noted, “not every

unpleasant matter short of discharge or demotion creates a

cause of action” for discrimination. Richardson v. N.Y.

State Dep’t of Corr. Servs., 180 F.3d 426, 446 (2d Cir.

1999), abrogated on other grounds by Kessler, 461 F.3d 199.

Rather, an “adverse employment action” must amount to

a materially adverse change in the terms and
To be “materially
conditions of employment.

adverse,” a change in working conditions must be
more disruptive than a mere inconvenience or an
alteration of job responsibilities.
Such a
change might be indicated by a termination of
employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a
material
loss
of
benefits,
significantly
diminished material responsibilities, or other
indices unique to the particular situation.

Savarese v. William Penn Life Ins. Co. of N.Y., 418 F.

Supp. 2d 158, 161 (E.D.N.Y. 2006) (quoting Weeks v. N.Y.

State (Div. of Parole), 273 F.3d 76, 85 (2d Cir. 2001),

abrogated on other grounds by Nat’l R.R. Corp. v. Morgan,

536 U.S. 101 (2002)); see also Mormal v. Costco Wholesale

Corp., 364 F.3d 54, 57 (2d Cir. 2004) (“A tangible

employment action, as defined by the Supreme Court,

‘constitutes a significant change in employment status,

such as hiring, firing, failure to promote, reassignment

with significantly different responsibilities, or a

decision causing a significant change in benefits.'”
(citation omitted) ) .
adverse for purposes
materially

An employment action is not

of a Title VII

discrimination claim simply because a plaintiff is unhappy

about it or believes it is unfair or unwarranted. Garber

v. New York City Police Dep’t, No. 95 Civ. 2516 (JFK), 1997

WL 525396, at *5 (S.D.N.Y. Aug. 22, 1997) (holding

plaintiff’s purely subjective feelings about an employment

transfer did not rise to level of Constitutional

violation), aff’d, 159 F.3d 1346 (2d Cir. 1998).

Plaintiff’s

allegations concerning materially

adverse changes in the terms and conditions of his

employment stem from the June 9 Letter to Dr. Lawrence

reprimanding him for his actions during the evening of May

26, 2005. According to Dr. Lawrence, the memo resulted in

the ED atmosphere becoming “poisoned against him” and

“justified the shorting” of the number of shifts assigned

to him. Plaintiff’s Response ¶ 109.

However, these allegations, in light of the

evidence offered by Dr. Lawrence, are insufficient to

establish an adverse employment action under Title VII.

With regard to Dr. Lawrence’s allegations that the ED

atmosphere was “poisoned” against him, it was he, not

Defendants, who publicized his

communications with

Defendants concerning the May 26 Incident and the June 9

Letter to a number of physicians and other ED medical staff

while attempting to garner support for his claim that he

did nothing wrong. Therefore, Dr. Lawrence’s own actions

served as the proximate cause of any effect the June 9

Letter might have on the atmosphere of the ED.

In

contrast, Plaintiff offers no evidence that Defendants

engaged in any activity to publicize the May 26 Incident

among the ED employees, and Defendants cannot be held

responsible for any alleged “poisoning” of the ED

atmosphere.

Plaintiff’s allegation concerning “shorting” of

his shifts also fails to establish the existence of an

adverse employment action. Dr. Lawrence has acknowledged

that the “shorting of his shifts” preexisted the May 26

Incident and the June 9 Letter. Moreover, Plaintiff has

not produced any evidence that this practice became more

severe following either the May 26 Incident or the June 9

Letter. Dr. Lawrence also admits that he was working in

the emergency departments of two other hospitals during

this period and requested fewer shifts at the Nyack

Hospital ED to enable him to continue to do so.

Dr. Lawrence was not demoted, discharged,

disciplined in any way, transferred, or assigned different

or lesser duties as a result of the June 9 Letter. His job

title was not altered in any way and no other material

changes to the terms and conditions of his employment were

imposed as a result of or in conjunction with the June 9

Letter.

Because Plaintiff cannot, as a matter of law,

establish the existence of an adverse employment action,

his claim cannot withstand Defendants’ motion for summary
judgment .

2. Plaintiff Cannot Establish the Existence of
Discriminatory Intent

Plaintiff also asserts that the actions taken by

Dr. Mehlman following the May 26 Incident were motivated by

discriminatory intent. A plaintiff may establish that an

adverse employment action resulted from discrimination by

demonstrating that the employer treated him less favorably

than a similarly situated employee outside his protected

group. Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d

Cir. 2003). However, the “similarly situated” individual

must be “similarly situated in all material respects.”

Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d

Cir. 1999) (quoting Shumway v. United Parcel Serv., Inc.,

118 F.3d 60, 64 (2d Cir. 1997)).

This requires

demonstrating that the plaintiff’s fellow employee was

“subject to the same standards governing performance

evaluation and discipline, and must have engaged in conduct

similar to the plaintiff’s.” – Id. at 96 (quoting Mazzella

v. RCA Global Commc’ns, Inc., 642 F. Supp. 1531, 1547

(S.D.N.Y. 1986), aff’d 814 F.2d 653 (2d Cir. 1987)).

Plaintiff points to the absence of any action by

Nyack Hospital against Dr. Khilnani following the May 26

Incident as evidence of disparate treatment. Dr. Khilnani,

however, cannot said to be a “similarly situated” employee.

While Dr. Khilnani was also on duty the night of May 26,

2005, he was not the physician who spoke with the police

officer in the ED. In addition, while Dr. Khilnani was a

recent medical school graduate, Plaintiff was the doctor on

duty with the most seniority and the former Interim

Director of the ED.

Further, Defendants had not been

directed by the CEO of Nyack Hospital to issue a reprimand

to Dr. Khilnani. Because Plaintiff has not proffered any

additional evidence that he was treated less favorably than

similarly situated individuals, he cannot rely on

allegations of “disparate treatment” to demonstrate

discriminatory intent on the part of Defendants.

In further support of his

assertion

of

discriminatory intent, Dr. Lawrence cites to comments

allegedly made by Dr. Mehlman, described supra, that he

argues evidences racial bias. In considering the nature of

allegedly racially discriminatory conduct, courts have
warned that “[iln Title VII actions . . . it is important

to distinguish between harassment and discriminatory

harassment in order to ‘ensure that Title VII does not

become a general civility code. ‘ ” Manessis v. N.Y.C. Dep’t

of Transp., No. 02 Civ. 359 (SAS), 2003 WL 289969, at *7

(S.D.N.Y. Feb. 10, 2003) (quoting Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998)); Petrosino v. Bell Atl.,
–

385 F.3d 210, 223 (2d Cir. 2004) (quoting Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)).

Thus, offhand comments or isolated incidents of offensive

conduct, unless extremely serious, will not support a claim

of discriminatory harassment, even if the plaintiff can

submit admissible evidence that they in fact occurred.

Petrosino, 385 F.3d at 223; Holtz v. Rockefeller & Co., 258
F.3d 62, 75 (2d Cir. 2001) .

Even viewing Dr. Mehlman’s comments in a light

most favorable to Plaintiff, no trier of fact could

conclude that a reasonable person would find the comments,

unconnected by time or date to the alleged adverse

employment action, sufficient to support a claim of racial

discrimination.

Indeed, Dr. Lawrence himself never

complained to Dr. Mehlman about his (Dr. Mehlman’s)

statements prior to the initiation of this lawsuit or

requested that Dr. Mehlman stop engaging in the conduct

which Plaintiff now claims was offensive and objectionable.

As to the allegations that Dr. Mehlman’s

scheduling decisions evidences his racial animus, Plaintiff

admits that the same or similar scheduling practices were

continued by a new Director hired in November 2005 by NEP.

Despite this, Plaintiff does not allege any racially

discriminatory motivation on the part of the new Director.

Plaintiff’s allegations of racial discrimination

are further undercut by the fact that NEP appointed Dr.

Lawrence as the Interim Director of the ED in 2003 and

considered Dr. Lawrence for the position of permanent

Director of the ED. Dr. Lawrence was also presented as a

candidate to the Nyack Hospital committee charged with

choosing the new Director.

In addition, Dr. Mehlman

himself recruited an African-American physician for the

position of Assistant Director of the ED, and two African-

American physicians, Dr. Deborah White and Dr. Augustine

Alifo, were offered employment with NEP as the future

Director of the ED during Dr. Mehlman’s tenure as Director.

Plaintiff’ s perceived slights by Dr. Mehlman and

his present objections to Dr. Mehlman’s conduct and

comments do not establish discriminatory intent on the part

of Defendants. Such perceived slights, or even personality

conflicts, are insufficient to support an allegation of

discriminatory intent.

IV. CONCLUSION

Upon the facts and conclusions stated above, the

motion for summary judgment is granted and the Complaint is

dismissed. Enter judgment on notice.

It is so ordered.

New York, NY
September y3/ , 2009

ROBERT W. SWEET
U.S.D.J.

Lee Med., Inc. v. Beecher (Full Text – Dissenting Opinion)

IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE
September 3, 2009 Session Heard at Knoxville

LEE MEDICAL, INC. v. PAULA BEECHER ET AL.

A ppea l by P erm iss ion from the C ourt o f A ppea ls , M idd le Sec tion
C ircu it C our t for W illiam son C oun ty
N o s . 08 -144 & 08 -146 Je ffrey S . B iv in s , Judge

N o . M 2008 -02496 -SC -S09 -CV – F iled M ay 24 , 2010

GARY R . W ADE, J ., d issen ting .

W h ile the m a jo rity’s narrow in terp re ta tion o f the s ta tu to ry pee r rev iew p riv ilege has
appea l, I canno t reconc ile its resu lt w ith the bas ic p rinc ip les o f s ta tu to ry con s truc tion . I m u s t,
the re fo re , respec tfu lly d issen t.

I
The cen tra l issue in th is case is w he the r the scope o f the pee r rev iew p riv ilege se t fo rth
in Tennessee C ode A nno ta ted sec tion 63 -6 -219 (e ) (Supp . 2009 ) is b road enough to p ro tec t
1
f rom d iscove ry the aud it o f T riS ta r H ea lth Sys tem ’s vascu la r access se rv ices a t its m em be r
ho sp ita ls . O f cou rse , ou r ro le in con stru ing s ta tu tes is to ascerta in and g iv e e f f e c t to th e

1

Subsection (e) states, in relevant part, as follows:

All information, interviews, incident or other reports, statements, memoranda or other data
furnished to any committee as defined in this section, and any findings, conclusions or
recommendations resulting from the proceedings of such committee are declared to be
privileged. All such information, in any form whatsoever, so furnished to, or generated by,
a medical peer review committee, shall be privileged. The records and proceedings of any
such committees are confidential and shall be used by such committee, and the members
thereof only in the exercise of the proper functions of the committee, and shall not be public
records nor be available for court subpoena or for discovery proceedings. . . . Nothing
contained in this subsection (e) applies to records made in the regular course of business by
a hospital or other provider of health care and information, documents or records otherwise
available from original sources are not to be construed as immune from discovery or use in
any civil proceedings merely because they were presented during proceedings of such
committee.

Tenn. Code Ann. § 63-6-219(e) (emphasis added).

leg is la tive in ten t w ithou t undu ly res tric ting o r expand ing th e s ta tu te ’s in tended scope .
Ow en s v . S ta te , 908 S .W .2d 923 , 926 (T enn . 1995 ). To th is end , w e p resum e th a t ev e ry
w o rd in a s ta tu te has m ean ing and pu rpo se and shou ld be g iven fu l l e f f e c t if the obv iou s
in ten tion o f the G ene ra l A ssem b ly is no t v io la ted by so do ing . In re C .K .G ., 173 S .W .3d 714 ,
722 (T enn . 2005 ) . Fu rthe r , ou r du ty is to cons true a s ta tu te so tha t its com ponen t pa rts a re
con s is ten t and reasonab le , C ohen v . C ohen , 937 S .W .2d 823 , 827 (T enn . 1996 ), and “ tha t no
pa rt w ill be inope ra tive .” T idw e ll v . C o llin s , 522 S .W .2d 674 , 676 (T enn . 1975 ) .

The language in th e f irs t tw o sen tences o f sub sec tion (e) , w hen con side red in
con junc tion w ith the de f in ition o f “m ed ica l rev iew comm ittee” and “pee r rev iew comm ittee”
in sub sec tion (c ), is indeed qu ite b road . The m a jo rity asse rts , how eve r , tha t the b read th o f
2
the de f ined p riv ilege is in “s ign if ican t in te rna l con f lic t” w ith the excep tion to the p riv ilege
fo r “ reco rd s m ade in the regu la r cou rse o f bu s iness ,” w h ich appea rs in the las t sen tence o f
sub sec tion (e ) , and tha t th is con f lic t “canno t be reso lved by con s ide ring the tex t o f the s ta tu te
a lone .” To se ttle th is pu rpo rted am b igu ity, the m a jo rity has crea ted a nove l te rm , “pee r
rev iew p ro ce ed ing ,” w h ich is des igned to lim it the scope o f the p riv ilege to on ly tho se
comm itte e d e libe ra tion s tha t “ invo lve[ ] a phys ic ian ’s conduc t, com pe tence , o r ab ility to
p rac tice m ed ic ine .” The ra tiona le fo r th is app roach lies p rim arily in T ennesse e C ode
A nno ta ted sec tion 63 -6 -219 (b )(1 ) , w h ich m ak es up on ly a po rtion o f one o f the s ix
sub sec tion s w ith in the s ta tu te: “ [ I]t is the s ta ted po licy o f Tennessee to encou rage comm ittees
m ade up o f T ennessee ’s licen sed phys ic ian s to cand id ly, con sc ien tiou s ly, and ob je c tive ly
eva lua te and rev iew the ir pee rs ’ p ro fess iona l conduc t, com pe tence , and ab ility to p rac tice

2
As the majority observes, the terms “medical review committee” and “peer review committee” in
subsection (c) are interchangeable. They are defined as

any committee of a state or local professional association or society . . . or a committee of
any licensed health care institution, or the medical staff thereof, or a medical group practice,
or any committee of a medical care foundation or health maintenance organization, preferred
provider organization, individual practice association or similar entity, the function of
which, or one (1) of the functions of which, is to evaluate and improve the quality of health
care rendered by providers of health care service to provide intervention, support, or
rehabilitative referrals or services, or to determine that health care services rendered were
professionally indicated, or were performed in compliance with the applicable standard of
care, or that the cost of health care rendered was considered reasonable by the providers of
professional health care services in the area and includes a committee functioning as a
utilization review committee . . . or as a utilization and quality control peer review
organization . . . or a similar committee or a committee of similar purpose, to evaluate or
review the diagnosis or treatment or the performance or rendition of medical or hospital
services that are performed under public medical programs of either state or federal design.

Tenn. Code Ann. § 63-6-219(c).

-2-

m ed ic ine . . . .”

W h ile the s ta tu te , as po in ted ou t by the m a jo rity, m ay inc lude ina rtfu l language , it is
unam b iguou s as to the scope o f the pee r rev iew p riv ilege . To the con tra ry, bo th the p la in
language o f the s ta tu te and its leg is la t ive h is to ry dem on s tra te tha t ou r G ene ra l A ssem b ly
in tended fo r the p riv ilege to app ly expan s ive ly. A lthough the re m ay appea r to be “ ten s ion”
w ith in sub sec tion (e ) be tw een the scope o f the p riv ilege and the regu la r cou rse o f bu s iness
excep tion , any lim ita tion s on the p riv ilege can be found w ith in the de f in ition o f “pee r rev iew
comm ittee” appea ring in sub sec tion (c) , obv ia ting the need to reso rt to the sub sec tion (b )(1 )
po licy s ta tem en t o r any ex te rna l sou rces .

II
The o rig ina l ve rs ion o f the s ta tu te p assed by the leg is la tu re in 1967 ex tended
immun ity to “ho sp ita l u tiliza tion rev iew comm ittees . . . re la ting to the ho sp ita liza tion o f
M ed ica re pa tien ts .” A c t o f M ay 25 , 1967 , ch . 348 , § 1 , 1967 T enn . Pub . A c ts 1066 , 1066 .
In 1975 , the G ene ra l A ssem b ly repea led and rep laced the 1967 ve rs ion . Th is am endm en t
inc luded a sec tion de f in ing “m ed ica l rev iew comm ittee” and es tab lished , fo r the f irs t tim e ,
3
a p riv ilege fo r a ll in fo rm a tion fu rn ish ed to o r f ind ing s m ade by the “m ed ica l rev iew
comm ittee” ; how eve r , the p riv ilege w as m ade sub jec t to an excep tion fo r “ reco rd s m ade in
4
th e regu la r cou rse o f bu s iness .” The sec tions appea ring in the 1975 am endm en t a re th e
5

3
As used in this section, the term “medical review committee” or “committee” shall mean any
committee of a state or local professional association or society, or a committee of any
licensed health care institution, or the medical staff thereof, or any committee of a medical
care foundation or health maintenance organization, the function of which, or one of the
functions of which is to evaluate and improve the quality rendered by providers of health
care service or to determine that health care services rendered were professionally indicated
or were performed in compliance with the applicable standard of care or that the cost of
health care rendered was considered reasonable by the providers of professional health care
services in the area. . . .

Act of May 2, 1975, ch. 117, § 1, 1975 Tenn. Pub. Acts 218, 218.

4
“All information, interviews, reports, statements, memoranda or other data furnished to any
committee as defined in this section, and any findings, conclusions or recommendations resulting from the
proceedings of such committee are declared to be privileged. . . .” Act of May 2, 1975, ch. 117, § 1, 1975
Tenn. Pub. Acts 218, 219.

5
Nothing contained herein shall apply to records made in the regular course of business by
a hospital or other provider of health care and information, documents or records otherwise
(continued…)

-3-

p rogen ito rs o f the cu rren t Tennessee C ode A nno ta ted sec tions 63 -6 -219 (c) and (e ) . It is m y
v iew , o f cou rse , tha t the p la in languag e o f th e 1975 enac tm en t ex tend s the scope o f the
p riv ilege beyond tho se p roceed ing s pe rta in ing to “a phys ic ian ’s conduc t, com pe ten c e , o r
ab ility to p rac tice m ed ic ine ,” T enn . C ode A nn . § 63 -6 -219 (b )(1 ) . Fo r exam p le , the G ene ra l
A ssem b ly ex tended the p riv ilege to “eva lua t[ ion s o f] and im p rove [m en ts to ] the qua lity
rende red by p rov ide rs o f hea lth ca re serv ice” and “de te rm in [a tion s] tha t hea lth ca re se rv ices
rende red w e re p ro fess iona lly ind ica ted o r w e re pe rfo rm ed in com p liance w ith the app licab le
s tanda rd o f care o r tha t the co s t o f hea l th c a re rende red w as con s ide red reasonab le by the
p rov ide rs o f p ro fess iona l hea lth ca re se rv ices in the area .” T enn . C ode A nn . § 63 -6 -219 (c ) .
W h ile p roceed ings invo lv ing phys ic ian s , the ir conduc t , and the ir capab ilities a re c lea rly
en titled to the p ro te c t ion s o f f e red by the p riv ilege , it is d if f icu lt to read the language f rom
sub sec tion (c ) as lim ited stric tly to the m o re na rrow app lica tion se t fo rth in subsec tion (b )(1 )
and re lied upon by the m a jo rity.

A s the m a jo rity concedes , sub sequen t am endm en ts to sub sec tion (c ) have served on ly
to b roaden the def in ition o f a “m ed ica l rev iew comm ittee” (w h ich now m ay a lso be
des igna ted a “pee r rev iew comm ittee” ) . M o reove r , a 1994 am endm en t to sub sec tion (e ) d id
no th ing to res tric t the scope o f the p r iv i leg e and se rved to reen fo rce the tie be tw een
sub sec tion s (c ) and (e ) . The s teady expan s ion o f the de f in ition o f “peer rev iew comm ittee”
6
in sub sec tion (c ) has done mo re than , in the w o rd s o f the m a jo rity, “crea te [ ] the im p ress ion
tha t the G ene ra l A ssem b ly likew ise in tended to expand the scope o f the p riv ilege in
[sub sec tion ] (e ) .” In s tead , because the scope o f the p riv ilege in sub sec tion (e ) and the
de f in ition o f “pee r rev iew comm ittee” in subsec tion (c ) have been inex tricab ly in te rtw ined
s ince 1975 , the b roaden ing o f the de f in ition o f “pee r rev iew comm ittee” has p la in ly inc reased
the scope o f the p riv ilege . W hen the s ta tu to ry language is c lear and unam b iguous , the cou rts
m u s t, o f cou rse , sim p ly app ly it. E as tm an C hem . C o . v . John son , 151 S .W .3d 503 , 507
(T enn . 2004 ) . N o re fe rence shou ld be m ade to the b roade r s ta tu to ry schem e , the leg is la tive
h is to ry, o r o the r sou rces to d iscern its m ean ing . See C o lon ia l P ipe line C o . v . M o rgan , 263
S .W .3d 827 , 836 (T enn . 2008 ).

5
(…continued)
available from original sources are not to be construed as immune from discovery or use in
any civil proceedings merely because they were presented during proceedings of such
committee.

Act of May 2, 1975, ch. 117, § 1, 1975 Tenn. Pub. Acts 218, 219.

6
“All such information, in any form whatsoever, so furnished to, or generated by, a medical review
committee shall be privileged communication subject to the laws pertaining to the attorney-client privilege.”
Act of Mar. 28, 1994, ch. 732, § 6, 1994 Tenn. Pub. Acts 431, 432.

-4-

D esp ite the sw eep ing d irec tive o f subsec tion (e ) tha t the pee r rev iew p riv ilege app lies
to “[a ]ll in fo rm a tion , [e tc .] fu rn ished to any comm i t te e as de f ined in th is sec tion , and any
f ind ings , [e tc .] resu lting f rom the p roceed ings o f such comm ittee” and “ [a ]ll such
in fo rm a tion , in any fo rm w ha tsoeve r , so fu rn ished to , o r gene ra ted by, a m ed ica l pee r rev iew
comm ittee ,” the m a jo rity ho ld s tha t the “ reco rd s m ade in th e regu lar cou rse o f bu s iness”
excep tion , found la te r in the sam e sub sec tion , c rea te s an am b igu ity. The m a jo rity reason s
tha t the sub sequen t ph rase “can reasonab ly be in terp re ted to m ean tha t any reco rd m ade in
th e regu la r cou rse o f a ho sp ita l’s bu s iness is no t p riv ileged , even if it w as subm i t ted to a
comm ittee inc luded in Tenn . Code A nn . § 63 -6 -219 (c ) .” I do no t b e liev e tha t such an
in terp re ta tion is pe rm iss ib le ; o the rw ise , the p riv ilege w ou ld be sw a llow ed by the excep tion .
In m y assessm en t, sub sec tion (e ) con tem p la tes a t leas t tw o m u tua lly exc lu sive types o f
ac tiv ities by a ho sp ita l: f irs t, tho se tha t take p lace in the regu la r cou rse o f bu s iness , and
second , tho se tha t take p lace unde r the m an tle o f one o f the comm ittees def ined in sub sec tion
(c ) . The la tte r ac tiv ity is p riv ileged , w h ile the fo rm e r is no t.

The m a jo rity exp resses conce rn th a t a ho sp ita l cou ld avo id a ll p roduc tion o f
docum en ts and reco rd s in c iv il p roceed ing s and thu s “sh ie ld essen tia lly eve ry dec is ion m ade
by a hosp ita l f rom app rop ria te ly m anaged d iscove ry in a c iv il case ” by s im p ly p lac ing a ll o f
its regu la r bus iness func tion s under the umb re lla o f a comm ittee tha t m ee ts the de f in ition se t
fo rth in sub sec tion (c ) . W he the r o r no t such a hypo the tica l abuse o f the pee r rev iew p riv ilege
cou ld occu r is no t the ques tion be fo re u s today. O u r du ty is to ascerta in the m ean ing o f the
s ta tu te . If the po licy p roves to be unw ise , any rem edy is fo r the G enera l A ssemb ly, and no t,
unde r these c ircum stances , fo r reso lu tion by the cou rts .

B ecau se the re is no rea l am b igu ity in the s ta tu to ry p rov is ion s , and becau se , as
acknow ledged by the m a jo rity, “ the tria l cou rt co rrec tly conc luded in its June 5 , 2008 o rde r
tha t the T riS ta r CNO C ounc il, the T riS ta r CFO C ounc il, and the H ende rsonv ille M ed ica l
C en te r’s Q ua lity M an ag em en t C omm ittee w e re pee r rev iew comm ittees as de f ined in
T enn [essee ] C ode A nn [o ta ted sec tion ] 63 -6 -219 (c ) ,” the ana lys is shou ld end the re and the
judgm en t o f the W illiam son C oun ty C ircu it C ou rt shou ld be a f f irm ed . I fee l ob liged ,
how eve r , to add ress the m e thod s o f cons truc tion used by the m a jo rity in its e f fo rt to reconc ile
the pe rce ived s ta tu to ry am b igu ity.

A s s ta ted , the m a jo rity p laces lim ita tion s on the p ro tec tion s p rov id ed by sub sec tion
(e ) by c rea ting the te rm “pee r rev iew p roceed ing ,” w h ich appears now he re in the s ta tu to ry
tex t. Fu rthe r , the m a jo rity has de f ined the te rm as a p roceed ing in w h ich a pee r rev iew
comm ittee , as de f ined unde r sub sec tion (c ) , is pe rfo rm ing a “pee r rev iew func tion” th a t
“ invo lves the eva lua tion and rev iew o f a physic ian ’s p ro fess iona l conduc t, com pe tence , and
ab ility to p rac tice m ed ic in e .” T h e p rim a ry ju s tif ica tion fo r so lim iting the pee r rev iew
p riv ilege is the po licy s ta tem en t se t fo rth in the 1992 am endm en t to the s ta tu te . In tha t 1992

-5-

am endm en t, the G ene ra l A ssem b ly iden tif ied “ the s ta ted po licy o f T ennessee to encou rage
comm ittees m ade up o f T ennessee ’s licen sed phys ic ian s to . . . eva lua te and rev iew the ir
peers’ pro fess iona l conduc t, com pe tence , and ab ility to p rac tice m ed ic ine .” T enn . C ode Ann .
§ 63 -6 -219 (b )(1 ) (em phas is added ) . The m a jo rity’s v iew is tha t the 1992 leg is la tion , on ly
one o f e leven am endm en ts passed s ince 1967 , “p rov ides a s ign if ican t in te rp re ta tive c lue to
the p rope r app lica tion o f” the p r iv i leg e in sec tion 63 -6 -219 (e ) and tha t sub sec tion “ (b )(1 )
s ta tes . . . the pu rpo se o f the p riv ilege in [sec tion ] 63 -6 -219 (e ) .”

W he the r o r no t the G enera l A ssem b ly “ cho se the te rm ‘peer rev iew ’ ca re fu lly and
de libera te ly in 1992 ,” it d id no t, in m y v iew , app ly tha t term to the scope o f the p riv ilege in
sub sec tion (e ) . In fac t, subsec tion (b )(1 ) does no t m ake any re fe rence , exp lic it o r im p lic it,
to the p riv ileg e in sub sec tion (e) . I see subsec tion (b )(1 ) as m e re ly a s ta tem en t o f po licy,
p re fa to ry in na tu re , w h ich does no t supe rcede the p la in language o f sub sec tion s (c ) and (e ) ,
p rov id ing tha t the peer rev iew p riv ilege m ay, in ce rta in c ircum stances , app ly to in fo rm a tion
re la ting to m a tte rs invo lv ing hea lth ca re p rov ide rs o the r than phys ic ians . See W ade v .
7
M add ing , 28 S .W .2d 642 , 649 (T enn . 1930 ) (“ It is a reasonab le ru le o f con s truc tion tha t,
w hen the leg is la tive exp ress ion o f a gene ra l in ten t con f lic ts w ith a pa rticu la r in ten t
sub sequen t ly exp ressed , the la tte r w ill p reva il.” ); see a lso W illiam s v . G lickm an , 936 F .
Supp . 1 , 4 (D . D .C . 1996 ) (“ [T ]he C ou rt do e s no t have the au tho rity to rew rite a c lea r ,
spec if ic s ta tu to ry p rov is ion even if it be lieved tha t such a p rov is ion w as incon s is ten t w ith a
gene ra l s ta tem en t o f pu rpo se .” ) . I am unpe rsuaded tha t sub sec tion (b ) “s ta tes . . . the pu rpo se
o f the p riv ilege es tab lished in” sub sec tion (e ) , o r fo r tha t m a tte r tha t th e scope o f the
p riv ilege in sub sec tion (e ) is “ re f lec ted in” o r shou ld be de te rm ined “ [ i]n acco rdance w ith”
sub sec tion (b )(1 ) .8

The m a jo rity has looked to the comm on def in ition o f the w o rd “peers” and de te rm ined
tha t it m u st re fe r on ly to licen sed phys ic ian s based upon the leg is la tive po licy s ta tem en t in
sec tion 63 -6 -219 (b )(1 ) and the popu la r n am e con ferred on the s ta tu te by the 1992
Am endm en t, “T enn e s se e P ee r R ev iew L aw o f 1967 ,” as cod if ied in sec tion 63 -6 -219 (a ) .
N eve rthe less , as the m a jo ri ty con cedes , sec tion 63 -6 -219 (d )(1 ) “p la in ly env is ion s tha t
pe rson s o ther than licen sed phys ic ian s m ay se rve on these comm ittees .” A s the G ene ra l

7
The statement from subsection (b)(1), to which the majority affords so much weight, is followed
by a second sentence: “Tennessee further recognizes that confidentiality is essential both to effective
functioning of these peer review committees and to continued improvement in the care and treatment of
patients.” Tenn. Code Ann. § 63-6-219(b)(1). A broader construction of the peer review privilege – one that
is in line with the plain language of sections 63-6-219(c) and (e) – is fully consistent with this statement of
policy.

8
The majority also discusses the references to physicians in the general immunity provisions of
section 63-6-219(d). These appear to me to be terms of example, rather than terms of limitation.

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A ssem b ly has no t lim ited pa rtic ipa tion in a “pee r rev iew comm ittee” to licen sed phys ic ian s ,
it s tand s to reason tha t the s ta tu to ry p riv ilege ex tend s to “pee rs” o the r than physic ian s . 9

III
I f th e m a jo rity w e re seek ing to lim it the scope o f the peer rev iew p riv ilege in
sub sec tion (e ) , it seem s to m e tha t such lim ita tion s m u s t be found , if a t a ll, in the com pan ion
sec tion o f the pee r rev iew s ta tu te – the de f in ition o f “pee r rev iew comm ittee” in sub sec tion
(c ) . “Pee r rev iew comm ittee” is de f ined in te rm s o f th ree d is tinc t types ,

[ (1 )] any comm ittee o f a s ta te o r loca l p ro fess iona l assoc ia tion o r soc ie ty . . .
o r
[ (2 )] a comm ittee o f any licen sed hea lth ca re in s titu tion , o r the m ed ica l s ta f f
the reo f , o r a m ed ica l g roup p rac tice , o r
[ (3 )] any comm ittee o f a m ed ic a l ca re founda tion o r hea lth m a in tenance
o rgan iza tion , p re fe rred p rov ide r o rgan iza tion , ind iv idua l p rac tice assoc ia tion
o r s im ila r en tity[ ,]

and a lso in te rm s o f th ree d isc re te func tion s

[ (1 )] to eva lua te and im p rove the qua lity o f hea lth care rende red by p rov ide rs
o f hea lth care se rv ic e to p rov ide in te rven tion , suppo rt, o r rehab ilita tive
re fe rra ls o r se rv ices , o r
[ (2 )] to de te rm ine tha t hea lth care serv ices rende red w e re p ro fess iona lly
ind ica ted , o r w e re pe rfo rm ed in com p liance w ith the app licab le s tandard o f
ca re , o r tha t the cos t o f hea lth ca re rende red w as con s ide red reasonab le by the
p rov ide rs o f p ro fess iona l hea lth ca re se rv ices in the area . . . [o r]
[ (3 )] a comm ittee func tion ing as a u tiliza tion rev iew comm ittee . . . o r as a
u tiliza tion and qua lity con tro l p ee r rev iew o rgan iza tion . . . o r a s im ila r
comm it te e o r a comm ittee o f s im ila r pu rpo se , to eva lua te o r rev iew the
d iagno s is o r trea tm en t o r the pe rfo rm ance o r rend ition o f m ed ica l o r ho sp ita l
se rv ices tha t a re pe rfo rm ed unde r pub lic m ed ica l p rog ram s o f e ithe r s ta te o r
fede ra l des ign [ .]

9
The majority observes that the codification of the peer review law in Chapter 6 of Title 63 of the
Tennessee Code Annotated, which pertains to the practice of medicine and surgery, suggests that the peer
review privilege should be limited only to physicians. I agree that the placement of a statement in a particular
title of the code may, depending on the circumstances, be a significant indicator of the legislature’s intent.
See Waters v. Farr, 291 S.W.3d 873, 910 (Tenn. 2009). I find nothing, however, about the placement of the
peer review statute in Chapter 6 of Title 63 that would preclude the privilege therein from applying to all of
the health care functions of peer review committees that are enumerated in the statute.

-7-

T enn . C ode A nn . § 63 -6 -219 (c ) . O ne cou ld reasonab ly su rm ise tha t by inc lud ing seve ra l
enum e ra ted func tion s o f a “pee r rev iew comm ittee” w ith in sub sec tion (c ), the leg is la tu re
in tended to lim it the app lica tion o f the p riv ilege on ly to tho se s itua t ion s in w h ich the pee r
rev iew comm ittee is pe rfo rm ing one o f tho se func tion s . L im iting the scope o f the p riv ilege
to reco rds conc e rn ing one o f the func tion s se t fo rth in subsec tion (c ) w ou ld p lace a c lea r
boundary on the scope o f the p riv ilege and se rve to a llev ia te the m a jo rity’s conce rn tha t the
p riv ilege “know s no reasonab le bound s .” W h ile such an in te rp re ta tion w ou ld no t na rrow the
scope o f the p riv ilege as fa r as the m a jo rity’s no tion o f “pee r rev iew p roceed ing s ,” a read ing
o f tha t na tu re w ou ld en joy the advan tage o f be ing g rounded in the sta tu to ry tex t.

In summ a ry, if the G ene ra l A ssem b ly had in tended in 1992 , o r a t any o the r tim e in the
las t fo rty-th ree yea rs , to lim it the scope o f the p riv ilege in sub sec tion (e ) to “ the eva lua tion
and rev iew o f a phys ic ian ’s conduc t, compe tence , and ab ility to p rac tice m ed ic ine ,” it cou ld
have done so in a s im p le , s tra igh tfo rw a rd w ay. It has no t cho sen tha t pa th . To the con tra ry,
ou r G ene ra l A ssem b ly has con tinued to expand bo th the d e f in i t ion o f “pee r rev iew
comm ittee” in sec tion 63 -6 -219 (c ) and the scope o f the pee r rev iew p riv ilege in sec tion 63 -6 –
219 (e ) . T he app roach o f the m a jo rity, w h ile con sis ten t w ith trad itiona l (and adm irab le )
p rinc ip les o f open d iscove ry in c iv il cases , is a t odd s w ith bo th the p la in , o rd ina ry language
in the body o f the s ta tu te and the p rog ress ion o f the leg is la tive am endm en ts s ince 1975 . Fo r
these reason s , I m u s t d issen t. I w ou ld , the re fo re , a ff irm the judgm en t o f the tria l cou rt and
ho ld tha t the pee r rev iew p riv ilege in T ennessee C ode A nno ta ted sec tion 63 -6 -219 (e) app lies
to the reco rd s and docum en ts sough t in the pend ing litiga tion .

I am au tho rized to s ta te tha t C h ie f Jus tice H o lde r jo in s in th is d issen ting op in ion .

_________________________________
GARY R . WADE , JUST ICE

-8-

Lebron v. Gottlieb Mem’l Hosp. (Summary)

MEDICAL MALPRACTICE – CAPS ON DAMAGES

Lebron v. Gottlieb Mem’l Hosp., No. 105741 (Ill. Feb. 4, 2010)

The Supreme Court of Illinois held that a state law which sets caps on noneconomic damages in medical malpractice cases violated the separation of powers clause of the Illinois Constitution and was facially invalid. Also, because the Act contained an inseverability provision, it was declared invalid and void in its entirety.

 

Lawrence v. Peters

 
UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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THOMAS R. LAWRENCE, Plaintiff-Appellant, v. ALAN J. PETERS; BRENDA TAYLOR; LARRY POZNER, Defendants-Appellees.

No. 99-1448 (D.C. No. 98-D-1401) (D. Colo.)

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ORDER AND JUDGMENT^(*)

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Before KELLY, McKAY, and
HENRY, Circuit Judges.

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After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument.

Thomas R. Lawrence, a chiropractor indicted for medicare fraud, brought an
action for extortion and for declaratory and injunctive relief against Brenda
Taylor, the federal prosecuting attorney, Alan J. Peters, the federal
investigator assigned to prepare the criminal case against Mr. Lawrence, and
Larry Pozner, Mr. Lawrence’s own defense attorney. He alleged that the
defendants conspired to violate his constitutional rights and violated the
federal Racketeer Influenced and Corrupt Organization Act (RICO) statutes. He
also requested a show cause order as to why defendant Taylor should not be
disciplined and an order requiring her to explain how she determined that his
indictment should allege Medicare/Medicaid overbilling of $219,000 instead of a
lesser amount.

The district court dismissed the entire action pursuant to Fed. R. Civ. P.
12(b)(6) for several reasons. We review the court’s dismissal of the complaint
de novo, accepting as true all well-pleaded allegations and affirming
only if it appears beyond doubt that Mr. Lawrence “can prove no set of facts in
support of his claim which would entitle him to relief.” Sutton v. Utah
State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999)
(quotation omitted).

Using this standard, we have carefully reviewed the district court’s order,
and for substantially the same reasons as stated in that order, we affirm the
dismissal of Mr. Lawrence’s suit. The district court attempted to explain to Mr.
Lawrence at a hearing that his criminal trial was the proper forum in which to
litigate the allegations in the indictment, and the government correctly argued
that Mr. Lawrence’s complaint simply prematurely alleged a malicious prosecution
case before he had established in his criminal trial that the allegations were
unfounded. See Taylor v. Meacham, 82 F.3d 1556, 1561 (10th Cir. 1996)
(holding that in order to maintain a malicious prosecution claim under ? 1983,
plaintiff must allege facts tending to prove the common law elements of
malicious prosecution and that his Fourth Amendment right to be free from
unreasonable seizure has been violated); Walford v. Blinder, Robinson &
Co., 793 P.2d 620, 623 (Colo. Ct. App. 1990) (setting forth essential
elements of malicious prosecution claim in Colorado: (1) defendant was a party
to or assisted in a criminal or civil proceeding against the plaintiff; (2) the
proceeding was resolved in favor of plaintiff; (3) there was no probable cause
for the proceeding; (4) the defendant was actuated by malice in instituting the
proceedings; and (5) the plaintiff was damaged thereby). Contrary to Mr.
Lawrence’s claim, the district court did not take the position that a
prosecuting attorney “who places a completely false figure . . . on an
indictment . . . in order to render a defendant in terrorem is not
guilty of anything.” Appellant’s Br. at 6 (emphasis in original).

We also reject Mr. Lawrence’s claim that the court’s use of the word
“possible” in a sentence describing Ms. Taylor’s participation in the criminal
case proves that the district court’s order was written either by a law clerk
without knowledge of the true facts or as a result of the court’s bias against
pro se litigants. See id. at 3. The context clearly indicates that the
court was describing who the defendants in the lawsuit were, with the word
“possible” explaining that Ms. Taylor’s job initially was to determine whether
criminal charges against Mr. Lawrence should be filed.

Mr. Lawrence likewise misinterprets the requirements of a prima facie showing
of a RICO violation and the district court’s statements made in conjunction with
its ruling. Mr. Pozner withdrew as Mr. Lawrence’s attorney on May 12, 1998.
See R. Doc. 1, Ex. B3. Mr. Lawrence states that he was indicted on June
23, 1999. See Appellant’s Br. at 3. Mr. Lawrence alleged that Mr.
Pozner violated 18 U.S.C. ? 1503 (obstructing justice by trying to influence a
juror or officer of the court) as part of his RICO claim. In dismissing the RICO
action against Mr. Pozner, the district court stated that a violation of ? 1503
must relate to a pending federal action against the plaintiff, and no such
action was pending. On appeal, Mr. Lawrence argues that the criminal action
against him satisfied the “pending” requirement. However, Mr. Lawrence had not
even been indicted at the time he alleged that Mr. Pozner violated ? 1503, thus
the district court properly dismissed the RICO claim.

The judgment of the United States District Court for the District
of Colorado is AFFIRMED.

Entered for the Court

Robert H. Henry

Circuit Judge

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FOOTNOTES
Click footnote number to return to
corresponding location in the text.

^*. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral
estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions
of 10th Cir. R. 36.3.

Lee Med., Inc. v. Beecher (Summary)

PEER REVIEW PRIVILEGE

Lee Med., Inc. v. Beecher, No. M2008-02496-SC-S90-CV (Tenn. May 24, 2010)

The Supreme Court of Tennessee partially vacated a trial court’s discovery orders and held that the Tennessee peer review privilege did not apply to an audit report considering whether a health system should stop outsourcing the provision of vascular access services, because the report did not involve a physician’s conduct, competence, or ability to practice medicine.

In the case, the health system’s hospitals, relying on the report, which was prepared by a third party, cancelled their contracts with a vascular access services provider to which it was outsourcing these services. The report demonstrated that it would be cheaper to provide vascular access services in-house. The provider filed suit, asserting numerous claims, including breach of contract, against several parties involved in preparing the report ("defendants"). The provider, as part of an "aggressive discovery campaign," filed a motion to compel production of the report. The defendants argued that the report was protected by the state peer review privilege. The lower court concluded that the audit report was protected by the privilege. The Supreme Court of Tennessee disagreed. Although it found that the committees that reviewed the report and made the decision to provide vascular services in-house were peer review committees under the broad definition of peer review committee within the statute, the court concluded that the proceedings in which the committees reviewed the report were not peer review proceedings because they were not related to a physician’s professional conduct or competence.

Dissenting Opinion

 

Lee Mem’l Health Sys. v. Jeffery (Summary)

PEER REVIEW PRIVILEGE – DISCOVERABILITY

Lee Mem’l Health Sys. v. Jeffery, No. 2:08-cv-843-FtM-29DNF (M.D. Fla. Mar. 30, 2010)

A Florida hospital system filed a lawsuit against two separate defendants, claiming that Florida’s controversial “Amendment 7” was invalid on a number of grounds. The hospital system also sought to have any other individuals who may seek peer review documentation from it in the future certified as a class.

The United States District Court, Middle District of Florida, dismissed one of the defendants on the grounds that the lawsuit was moot as to that defendant. Because the underlying medical malpractice action had been settled and there were no pending discovery disputes, the court held that there was no pending case or controversy. For the same reasons, the court held that the lawsuit was not moot as to the second defendant and should continue (i.e., the underlying medical malpractice case was still pending and there were pending discovery requests and disputes).

Finally, after analyzing the rules for certifying a class, the court refused to do so in this case and dismissed the hospital system’s motion in this regard.