United States District Court, S.D. Indiana, Indianapolis Division
TALAL S. HAMDAN, M.D., Plaintiff,
INDIANA UNIVERSITY HEALTH NORTH, LLC, f/k/a CLARION HEALTH NORTH, LLC, et al., Defendants.
ENTRY ON CROSS MOTIONS FOR SUMMARY JUDGMENT
WILLIAM T. LAWRENCE, District Judge.
This cause is before the Court on the Defendants' motion for summary judgment (dkt. no. 98) and the Plaintiff's motion for partial summary judgment (dkt. no. 100). The motions are fully briefed, and the Court, being duly advised, GRANTS IN PART the Defendants' motion and DENIES the Plaintiff's motion for the reasons, and to the extent, set forth below.
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." In ruling on a motion for summary judgment, the admissible evidence presented by the non-moving party must be believed and all reasonable inferences must be drawn in the non-movant's favor. Hemsworth v. Quotesmith.com, Inc., 476 F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) ("We view the record in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor."). However, "[a] party who bears the burden of proof on a particular issue may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations, that there is a genuine issue of material fact that requires trial." Id. Finally, the non-moving party bears the burden of specifically identifying the relevant evidence of record, and "the court is not required to scour the record in search of evidence to defeat a motion for summary judgment." Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
The fact that the parties have filed cross-motions for summary judgment does not alter the standard set forth in Federal Rule of Civil Procedure 56. When evaluating each side's motion, the Court simply "construe[s] all inferences in favor of the party against whom the motion under consideration is made." Metro Life. Ins. Co. v. Johnson, 297 F.3d 558, 561-62 (7th Cir. 2002) (quoting Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 692 (7th Cir. 1998)).
The Plaintiff, Dr. Talal S. Hamdan, is a cardiologist of Palestinian descent and a practicing Muslim. At all times relevant to this matter, Dr. Hamdan was employed by Heart Partners of Indiana, LLC ("Heart Partners"); however, he had medical staff privileges at twelve different hospitals, including Defendant Indiana University Health Hospital North, Inc. ("the Hospital"). On December 13, 2007, Dr. Hamdan signed a Medical Staff Statement of Applicant ("the Application") with the Hospital. By signing the Application, Dr. Hamdan agreed to be bound by the Hospital's Medical Staff Bylaws ("the Bylaws").
Beginning in 2009, Dr. Hamdan performed surgical procedures in the Hospital's Catherization Laboratory ("Cath Lab"); he was particularly interested in and skilled at limb salvage procedures. Shortly after he began working in the Cath Lab, Cath Lab employees began making discriminatory and derogatory comments about him.
Dr. Hamdan's nurse, Cindy Ross Barr, overheard Sharon Bridson, Linda Green, and JoEllen Simmons call Dr. Hamdan a "Middle Eastern chauvinistic pig" and "Muslim pig." They also said "we know how he treats women."
Dr. Hamdan heard Brisdon say, "I've worked with these Middle Eastern Muslims before." She told Dr. Hamdan, "I've worked with your kind before."
Simmons told Dr. Hamdan that "his kind mistreats" people, and that she "hated" him because he "thinks he can come here and just run things the way [he wants]."
A medical device manufacturer overheard Kelly Beimer call Dr. Hamdan a "sand nigger."
The same medical device manufacturer also overheard Caitlin Davis refer to Dr. Hamdan as a "foreigner, " "second class citizen, " and "not an American." Davis told Dr. Hamdan to "go back to where you came from."
Connie Perry introduced her husband to Dr. Hamdan and then told the other Cath Lab employees that her "husband scared the shit out of Dr. Hamdan" and that he "hates Middle Easterners."
This type of discriminatory and derogatory remarks continued for the duration of Dr. Hamdan's time with the Hospital.
In addition to the above remarks, the Cath Lab employees began to file false and misleading complaints against Dr. Hamdan. The Hospital used a Web Based Incident/Complaint Reporting procedure that encouraged Hospital staff to report incidents with physicians' behavior or any clinical concerns. These reports were received by Dr. Lynda Smirz, Chief Medical Officer of the Hospital. The earliest reports are as follow:
October 30-31, 2009, report completed by Rebekah Dennis. Rebekah alleged that Dr. Hamdan asked her if her husband regretted marrying her in front of Tim Alrichs, a medical device representative. Dennis felt this was a "personal attack" and was "inappropriate and rude." Dkt. No. 111-8. Both Dr. Hamdan and Alrichs deny this.
October 30-31, 2009, report completed by Steve Allgood, Jessica Schult, and Chris Decker (Cath Lab employees). After a procedure was complete, Dr. Hamdan asked the patient how she was feeling. She reported "that she had feeling down there she had never had before." As Allgood was unhooking the patient from the EKG, Dr. Hamdan allegedly told him to "get his finger out of there." Id.
November 18-19, 2009, report completed by Dennis. Dennis alleged that a patient, asked for pictures of her heart catheter so she could send them to her granddaughter who was in the medical field. Allegedly, Dr. Hamdan responded that he could give the patient's granddaughter naked pictures of himself. Sharon and Linda were witnesses. Both Dr. Hamdan and the patient deny this.
November 20-21, 2009, report completed by Green. Green alleged that Dr. Hamdan initiated a conversation "of a sexual nature that was not appropriate for the workplace." Dr. Hamdan and the medical device representatives present during the procedure deny this. Id.
On March 5, 2010, the Hospital received a complaint regarding Dr. Hamdan's treatment of a patient ("Patient F"). Davis completed a "Web Based Incident/Complaint Report Submission Detail" form after Dr. Hamdan performed a lower extremity atherectomy in the Cath Lab; Brisdon was a witness. Davis and Brisdon cited various concerns including, among others: an unresolved vessel dissection; a high dosage of radiation; improper use of supplies (thirteen stents and twelve balloons); and improper sedation. The report was referred to the Performance Assessment & Improvement Committee ("the PA&I Committee"), which was the Hospital's peer review committee responsible for identifying, evaluating, and making recommendations concerning patient care and appropriate utilization of hospital resources.
The PA&I Committee held a meeting on April 15, 2010. Dr. Woodrow Corey, head of cardiology at the Hospital and a member of the PA&I Committee, reviewed the Patient F case and presented it to the rest of the PA&I Committee. He noted that this type of case "is a judgment call as to how you approach it." Dkt. No. 111-11. He explained that during the procedure, Patient F was found to have disease below the knee, and that one stent was placed free floating. Dr. Corey further noted that there "are no specific guidelines for this procedure, " but suggested that a vascular surgery consultation may have been appropriate. Id. The patient was noted to have gotten "good results." Id. Dr. Hamdan was also present at the meeting; he was given a chance to explain the incident, and the PA&I Committee members asked him questions. Dr. Hamdan assured the PA&I Committee that it was not his intent for the procedure to be so lengthy and to require so many resources. He also noted that he did consult a vascular surgeon, Dr. Gary Lemmon.
In determining the next steps, Dr. Smirz directed the PA&I Committee to the four incident reports filed by Cath Lab employees involving Dr. Hamdan. The PA&I Committee noted that corrective action was needed with regard to these four incidents. It also decided that further peer review of the Patient F case was needed.
Thus, Dr. Robert McCready and Dr. Himanshu Shah reviewed the Patient F case in May 2010. Dr. McCready, a vascular surgeon, opined that the patient should not "have undergone an endovascular attempt at limb salvage" and that it was "unfortunate that this case utilized so many precious resources." Dkt. No. 111-2. Similarly, Dr. Shah, an interventional radiologist, opined that the "care provided seem[ed] a bit over-aggressive both in terms of treatment as well as liberal utilization of expensive supplies." Dkt. No. 111-3.
As a result, on May 18, 2010, the PA&I Committee notified Dr. Hamdan via letter of the concerns it had with the Patient F case, specifically the number of stents and balloons he used and the long period of fluoroscopy exposure. The letter noted that the PA&I Committee "recommends that this particular case receive peer review" and "recommends that your future catheter cases be mentored by Dr. Ray Halum... on an ongoing basis until such time as Dr. Halum is able to confirm your clinical competence in those procedures." Dkt. No. 111-4.
Dr. Hamdan appealed the recommendations set forth in this letter; he was particularly concerned with the recommendation that Dr. Halum review all of his cases, as he was a competitor. Thus, on June 17, 2010, the PA&I Committee held a meeting to address his appeal. Dr. Hamdan was given the opportunity to present more information on the Patient F case, and the PA&I Committee asked him questions. Dr. Hamdan emphasized the complexity of his cases, noting that cases are referred to him for limb salvage.
On July 2, 2010, Dr. Hamdan received a letter from Dr. Claudia Somes, the Chair of the PA&I Committee. The letter notified Dr. Hamdan that he was being placed under a Focused Professional Practice Evaluation ("FPPE") for a six-month period of time-Dr. Hamdan's vascular procedures were to be evaluated by a focus group composed of various clinicians to evaluate the safety and efficacy of the cases and to ensure that Dr. Hamdan was complying with the applicable medical standards.
Meanwhile, Dr. Hamdan continued to experience discrimination by Hospital employees. Another incident report was filed on September 2, 2010, by a floor nurse. The nurse was unsure whether a patient should be discharged, and the patient's family was eagerly seeking answers. Dr. Hamdan had ordered the patient to be discharged, but had placed this order in the back of the patient's chart and did not check the "discharge" box on the cover sheet. When the nurse paged Dr. Hamdan asking if the patient could be discharged, he began yelling, screaming, and cursing, calling the nurse incompetent. The nurse reported this incident, alleging that Dr. Hamdan was "abrupt, rude, unprofessional, and confrontational" with her and that the patient's discharge was delayed because of the improper placement of the discharge order. Dkt. No. 111-8. Dr. Hamdan alleges that when he explained what happened to the nurse, she said "in this country, doctor, we write from front to back." This was a reference to written Arabic, which is "backwards" as compared to the written English language.
Dr. Hamdan's FPPE was eventually completed by Dr. Harlamert; he reviewed approximately fifteen cases over the six-month period of time and "found nothing wrong." However, the Hospital received several incident reports of arterial perforations during Dr. Hamdan's procedures. Another complaint was filed on October 18, 2010, alleging that Dr. Hamdan initiated discussions with Cath Lab employees regarding their reporting of these perforations. It alleged that Dr. Hamdan warned the Cath Lab employees that when this happened at a hospital where he previously worked, there was a decrease in the number of working hours for the staff once he decided to no longer work at the hospital.
On November 26, 2010, Dr. Smirz sent a letter to Dr. Hamdan and enclosed three redacted incident reports. She noted that there was still "some difficulty with your comments, your body language, and your demeanor with staff[.]" Dkt. No. 111-4. The letter further noted that there was "a communication problem where information is not transmitted to the staff as team members. I feel if you are able to work on a more team approach with our nursing staff and our cath lab staff that these issues will resolve." Id. Dr. Hamdan responded by email on December 4, 2010. He noted that "team approach is important" and that he had "been trying [his] best to comply." He noted that certain complaints were "he say versus she say, " but that he was hopeful to start the new year on a better note. Id.
Despite Dr. Harlamert's conclusion that there were no issues with Dr. Hamdan's procedures and that Dr. Hamdan was not a risk to the Hospital, some members of the PA&I Committee were still not satisfied. During the January 20, 2011, PA&I Committee meeting, concerns were expressed-Dr. Hamdan was a "cowboy, " taking risky "fringe" cases, and causing liability for the Hospital. Dkt. No. 111-15. The PA&I Committee decided that more information from Dr. Lemmon, the vascular surgeon, was needed. They also sought additional review from an outside source, Dr. Shah.
Meanwhile, the complaints continued. On January 22, 2011, Davis sent an email to Jon Goble, President of the Hospital, complaining of Dr. Hamdan's behavior. She noted that his behavior was "quite disturbing, " that he spoke to staff in a "degrading manner, " and that she believed she was in an "abusive relationship" with him professionally. Dkt. No. 112-5 at 634-37. In addition, she referenced a performance evaluation where she was noted to have been hostile to him; she noted that she "will not back down until this section of my performance review is removed from my file. His behavior is now affecting my reputation." Id. It was also reported that Dr. Hamdan referred to Davis as "jailbait" because of her young age.
At this point in time, Dr. Smirz was aware of the problems between the Cath Lab employees and Dr. Hamdan. She noted in emails that the Cath Lab employees "personally don't like Hamdan" and that their dislike had "overtones of cultural intolerance." Dkt. No. 112-5 at 625. Other Hospital management were skeptical of the "veracity" of the complaining Cath Lab employees, noting that they tended to "exaggerate" and that the truth was somewhere "in between." Id. at 640, 644, 647.
On January 28, 2011, an incident report was filed alleging that Dr. Hamdan was to discharge a patient so the patient could go to his dialysis appointment; however, Dr. Hamdan never did, and did not return phone calls or pages. On February 2, 2011, Cath Lab staff filed an incident report noting that Dr. Hamdan brought his children, ages three and four, to work and that they were disruptive. Thomas Catalano, a medical device representative, recalled that Dr. Hamdan was called to the Hospital to perform a critical limb ...