Behazin v. Dignity Health, Inc.

NEGIN BEHAZIN, Plaintiff and Appellant, v. DIGNITY HEALTH, INC., Defendant and Respondent.

B293805

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

September 2, 2020

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. NC060566)

APPEAL from a judgment of the Superior Court of Los Angeles County. Ramona G. See, Judge. Affirmed.

Bohm Law Group and Lawrence A. Bohm, Bradley J. Mancuso, and Lindsay L. Bowden; Esner, Chang & Boyer and Stuart B. Esner for Plaintiff and Appellant.

Ballard Rosenberg Golper & Savitt, Linda Miller Savitt, Eric C. Schwettmann, and John J. Manier for Defendant and Respondent.

Negin Behazin (appellant) appeals from a final judgment entered after the trial court granted summary judgment in favor of Dignity Health, Inc. (respondent) on appellant's claims against respondent. At issue in appellant's first amended complaint (FAC) against respondent were only two causes of action: (1) violation of Labor Code sections 98.6 and 1102.5; and (2) adverse action in violation of public policy. The trial court granted summary judgment on these two causes of action on the grounds that appellant did not engage in any activity protected by Labor Code sections 98.6 or 1102.5; and there is no tort cause of action for nonrenewal of a fixed term employment contract such as appellant's. We find no error and affirm the judgment.

FACTUAL BACKGROUND¹

Appellant's educational background

Appellant received her medical education at Islamic Azad University in Tehran, Iran, and thereafter practiced medicine in Iran for five years. In March 2003, she obtained an entry visa into the United States and entered a Ph.D. program in pharmacology at Northeastern University. She left that program after receiving her master's degree in 2005. She was thenengaged in medical research at two Boston hospitals for four years.

Appellant entered a preliminary year residency program at St. Mary's Health Center in St. Louis, Missouri (SMHC) for the 2010-2011 academic year. Appellant received an overall satisfactory evaluation for her post-graduate year at SMHC, but she received several marginal evaluations for certain rotations.

On July 1, 2011, appellant began an advanced residency in anesthesiology at the University of Missouri in Columbia, Missouri, where she experienced difficulties, and received unsatisfactory ratings for both her first and second six month reviews. She received no academic credit for the year due to her unsatisfactory rating.

Appellant's position with respondent's organization

St. Mary Medical Center in Long Beach, California (SMMC), offered appellant a postgraduate year one position in internal medicine. Appellant accepted, and signed a resident employment agreement that offered a fixed one-year term from June 18, 2013 to June 22, 2014, with no guarantee of renewal. The contract provided, in part, that it "applies only to the stated term hereof and does not imply any guarantee of a training position or employment of any kind in subsequent years." The agreement also explained that if the resident's agreement was not going to be renewed, SMMC would "use its best efforts to provide Resident with a written notice of intent not to renew no later than four (4) months prior to the expiration of this Agreement," but, should the reasons for nonrenewal occur within the last four months preceding the contract's expiration, "Hospital shall provide as much advance notice to Resident as is reasonable under the circumstances."

Internal medicine residents such as appellant who have graduated from an international medical school must obtain a California medical license by the end of their third year of training, regardless of whether they received academic credit for each year. Residents are required to begin the process of obtaining a California medical license six months before the applicable cut off date, so that any problems can be resolved in a timely manner. In a letter dated January 17, 2014, the Medical Board of California notified appellant that she needed to submit several additional items to support her medical licensure application, including a "signed and dated personal explanation" of why she did not disclose her SMMC training for 2013-2014 on her application summary.

There were various issues with appellant's performance and progress throughout her residency year at SMMC. In February 2014, appellant's faculty advisor, Sarah Strube, D.O., provided Dr. Chester Choi, the program director, with a list of 16 separate problems and ongoing issues she observed with appellant's performance. On March 18, 2014, in a meeting with Dr. Strube, appellant faced criticism for her performance on her February medical floor rotation. Dr. Strube gave appellant marginal evaluations for the month of February. On March 29, 2014, Bettina Kehrle, M.D., met with appellant to discuss her performance. The next day, Dr. Kehrle provided other supervising doctors with a list of concerns she had about appellant's performance, as she did not believe appellant was meeting the program's standards as compared to her peers.

March 10, 2014 email

On March 10, 2014, appellant wrote an email to seven individuals affiliated with the residency program includingDr. Strube, five other doctors, and Maureen Lucey, the nursing director of the ICU. The email was captioned "Questions on transfusion strategies in GI bleed," and included: "The reason I am bringing this case to your attention is that in my opinion it is related to patient safety, and I've noticed that there is no consensus even among the House Staff and the attending physicians at St. Mary on the management of GI bleeds." The email was viewed as a complaint about the ICU nurses, one of whom pressed the code button out of concern that appellant was not giving appropriate orders. Appellant specifically questioned the judgment of a third-year resident in the email, which was considered inappropriate outside of the peer review process.

The next day, Dr. Bahman Chavoshan, one of the email recipients, sent a reply to appellant:

"I read your e-mail with a significant amount of concern.

"While we encourage our house staff to be involved in quality improvement projects, patient safety assurance, there are proper venues for these activities. An e-mail to a group of people with various levels of responsibility is not one of those avenues.

"The issues of physician practices, et cetera, fall under various committees, including the medical staff association. Openly discussing other physician practices by name outside of a peer review process is never appropriate.

"I know that Dr. Strube and you are planning to meet next week to go over your most recent evaluations. Dr. Choi and/or I will meet with you afterwards.

"Let me also be frankly blunt and clear: the issues of performance (including advancement and disciplining), leave and other privileged information about other house staff members cannot and shall not be discussed."²

Appellant's response to Dr. Chavoshan was as follows:

"This is not about questioning another physician's performance. It is about being pressured by ICU staff to give certain orders and be discredited, if not doing so. I have learned from experience that if I refuse to give a certain order, I will be bypassed to the next level and the case is presented to the next person in a way that the order is obtained. I am not questioning [anyone] here. I am questioning the ICU staff's level of comfort with watchful waiting and threshold based transfusion in GI bleed and I wanted to start the discussion with the intensivists here (I wish I could have included all the intensitists [sic] on the email) to come up with a [framework] for ICU staff for manageme[nt] of GI bleed.

"As for leave of absence, I am totally surprised that an intern is on leave of absence fighting for his life and is being ignored to this level by the department. When I worked at Harvard, it was a [routine] practice to let the colleagues know if [someone] was on leave for any family emergency.

Department would send them flower arrangements and an e-mail would inform staff that a card is available to write or sign for that person in such and such room and on such days, so people would go and drop a note of sympathy for their counterpart. The card would then go to that person with flowers via the department. This is NOT a HIPPA [sic] violation or invasion to anybody's privacy. I think in this department we are going way extreme in terms of respecting privacy and we're confusing respecting privacy with ignoring. I am very sorry that you have such ill impressions of my intentions in [everything] I do and say.

"Negin

"LET ME BE BLUNTLY FRANK: WE WANT TO SEND FLOWERS AND CARDS TO . . . . . IF THIS STUPID DEPARTMENT CAN NOT [sic] ARRANGE FOR IT TO HAPPEN, GIVE US HIS HOME ADDRESS TO TAKE CARE OF IT BY OURSELVES!"

One minute later, appellant sent a second reply to Dr. Chavoshan, which stated in full:

"I AM NOT INTERESTED IN MEETING WITH U [sic] BY THE WAY. SEND ME YOUR ADVICE/QUESTIONS VIA EMAIL. [¶] NEGIN"

Three days after this e-mail exchange, appellant was called to a mandatory meeting with SMMC's chief medical officer, Andrew Burg, M.D., and its human resources director, Robert Bokern, to discuss appellant's behavior in sending the emails. At this meeting, appellant was informed that SMMC had decided not to renew her contract. Dr. Burg also discussed the rulesunder HIPAA, and there was a brief discussion of the incident involving transfusions, which was reviewed with the nursing committee. Contrary to appellant's assertions, the committee determined that the nurses had acted properly.

Appellant completes...