Hand v. Am. Bd. of Surgery,

Hand v. Am. Bd. of Surgery,
No. 01-2172 (E.D. Pa. Feb., 2002)

physician, who wanted to earn a specialist certificate in surgery from the American
Board of Surgery ("Board"), took the certificate examination, passing
the written component on his third attempt but failing the oral examination
three times. After each failure, the physician requested from the Board a critique
of his oral examination performance. He issued a challenge to the administration
of the examination, however, only after his third failure. The physician appealed
the decision, a process that he alleged was not followed in a manner that the
Board’s bylaws indicate, and alleged that his notes and recollections of his
oral examination are significantly different from the critique provided to him
by the Board. Because the Board does not permit an applicant to re-take the
oral examination a fourth time without first completing a special year-long
training course, the physician contends that this year away from his practice
of medicine, in addition to his loss in status from certain surgery associations,
would cause him the loss of that year’s earnings.

The United States District Court of the Eastern District of Pennsylvania granted
the Board’s motion for summary judgment holding that the physician failed to
provide any of the evidence he alluded to regarding discrepancies in the grading
of his oral examination. Although the physician claimed that his responses during
the examination differed from the way in which the Board represented them in
its critique, he failed to produce personal notes that he had allegedly taken
immediately following the examination or even to describe specific memories
of his oral examination answers. In response to the physician’s contention that
the Board should have been on notice that he was going to challenge his examination
results, and therefore should not have destroyed the records of the examination
after 90 days, as is the Board’s policy, the court held that the Board was not
on notice because the physician had requested a critique after each of his two
previous failures, but did not challenge the results of those examinations.
Regarding the physician’s claim that his initial appeal should have been heard
by the Board’s Examination Committee rather than its Credentials Committee as
provided by the Board’s bylaws, the court ruled that despite this discrepancy
the physician employed the Board’s entire three level appeals process and, in
fact, did have an opportunity to present his grievance to the members of the
Examination Committee during that process. Because the court found that the
physician was not prejudiced during the appeals process, the physician failed
to show the necessary causal connection between the Board having not perfectly
followed its bylaws and the Board’s eventual decision not to reverse the physician’s
failing grades.