Garg v. VHS Acquisition Subsidiary No. 7

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Ashu Garg, Plaintiff, v. VHS Acquisition Subsidiary Number 7, d/b/a Saint Vincent Hospital, David Bader, John Mukai and Douglas Burd Defendants.

Civil Action No. 20-40060-NMG

United States District Court, D. Massachusetts

May 8, 2023

MEMORANDUM & ORDER

NATHANIEL M. GORTON, UNITED STATES DISTRICT JUDGE

This case arises out of alleged discriminatory and retaliatory actions taken against plaintiff Ashu Garg, M.D. (“Garg” or “plaintiff”), a former medical resident, by his former employers, VHS Acquisition Subsidiary No. 7, Inc. d/b/a Saint Vincent Hospital (“SVH” or “the Hospital”), David A Bader, M.D. (“Bader”), John K. Mukai, M.D. (“Mukai”) and Douglas A. Burd, M.D. (“Burd”) (collectively “defendants”).

Before the Court are defendants' motions for 1) summary judgment, 2) to exclude the report and testimony of plaintiff's expert, Jason N. Itri, M.D., Ph.D. and 3) to strike Itri's October 31, 2022 affidavit. For the reasons that follow, the motion for summary judgment will be allowed, in part, and denied, in part. The motions with respect to Dr. Itri will be denied.

I. Background

A. The Parties

SVH is a community hospital and tertiary care center in Worcester, Massachusetts. Garg was a third-year resident in the SVH diagnostic radiology residency program (“the SVH program”) in 2016 and 2017.

Bader is the President of Saint Vincent Radiological Associates, Inc., a medical group that contracts with the Hospital to provide radiology services. He is the Chief of Radiology at SVH and has served as the Program Director of the SVH diagnostic radiology residency program for 16 years, including during 2016 and 2017 when Garg was employed at SVH.

Mukai and Burd are attending physicians and program faculty at SVH. They provided teaching and supervision to the SVH program when Garg was a resident. Both Mukai and Burd completed several evaluations of Garg on different rotations and assignments. They are employed by Saint Vincent Radiological Associates, Inc., not by SVH directly.

B. The SVH Program

The SVH program is fully accredited by the Accreditation Council for Graduate Medical Education (“ACGME”). The ACGME is an independent, § 501(c)(3), not-for-profit organization that sets and monitors voluntary professional educational standards for medical residents.

The SVH program trains doctors to become radiologists, i.e., physicians who specialize in the interpretation of imaging studies of the human body and image-guided interventional procedures. The program consists of clinical and didactic experiences, education sessions, assigned and optional reading, logs of diagnostic and interventional studies, education portfolio reviews, scholarly research, observed one-on-one reading of images such as x-rays, MRI and CT scans and directly supervised and independent patient care.

The first year of residency before entering a diagnostic radiology residency program is the “PGY1” year, i.e., postgraduation year one. Each successive year of training is then referred to as PGY2, PGY3, etc. A radiology residency continues for four years after the PGY1 year and each year of diagnostic radiology training is simultaneously referred to as R1, R2, etc. Thus, Garg was an R3 resident and in his PGY4 year while he was employed by SVH.

C. Employment History

Plaintiff was hired by Bader to be an R3/PGY4 in the SVH program beginning in September, 2016. Bader was aware prior to hiring Garg that he was over 40 years of age. Plaintiff was a transfer from the University of Oklahoma Diagnostic Radiology Residency Program, which he attended from July, 2013 to June, 2016.

Garg received several negative faculty evaluations during his first few months in the program. For example, Priyanka Prakash, M.D. (“Prakash”) wrote that Garg had “more misses/incorrect diagnoses than what is expected for a third year resident” and Paulomi Kanzaria, M.D. (“Kanzaria”), the Associate Program Director wrote “Ashu is not at the expected level for an R3 resident,” noting that he cannot “apply his knowledge or reliably see findings on both plain radiographs and cross sectional imaging.” In December, 2016, Kanzaria noted in an email to Bader that she had to make changes to almost all of Garg's plain films from his emergency room rotation and Mukai expressed concern that Garg did not have the “visual cognitive aptitude to do radiology.”

Plaintiff alleges that during the fall of 2016, he noticed that Burd “seemed to unfairly evaluate [his] radiology reports” and was “overly critical.” Garg complained to Bader about those “unsound evaluation gradings” but did not suggest that they were discriminatory.

In February, 2017, Bader conducted a comprehensive evaluation known as a Portfolio Review of Garg's performance in the program. On February 14, 2017, Garg, Bader and Kanzaria met to discuss his Portfolio Review and his performance in detail. One week later, Bader issued Garg a Stage One written warning, which Bader and Kanzaria discussed with Garg at a meeting. Bader noted that Garg's performance would be reassessed in May, 2017 after his next night float rotation. Bader informed him at that time that they expected to see him meeting the performance expectations of an R3, specifically a decrease in the number and severity of missed findings, particularly on CT exams, and improved report quality and turnaround time.

Plaintiff alleges that in early April, 2017, during a conversation about radiology reports, Mukai asked Garg how old he was. When he replied that he was over 40 years old, Mukai responded, “You are f***ing 40 years old and you are trying to learn radiology now?!”

On April 26, 2017, Bader signed Garg's renewal letter for the following residency year.

Bader issued Garg a Stage Two written warning for performance deficiency on May 3, 2017. The warning letter referred to several performance issues including a high number of re-reads, unsatisfactory quality and clarity of reports, delays in generating reports, low volume of cases during rotation and low faculty evaluations, particularly on night float. It stated that the next formal re-evaluation of Garg's warning status would be after his next night float rotation in mid-June, 2017.

According to Garg, in May, 2017, he was concerned that Burd continued to grade him unfairly and, given Mukai's comment about his age, he wondered if Burd's grading was related to his age. On May 12, 2017, Garg emailed Bader, stating that Burd's grading was “an example of discrimination.” Bader responded to that email that “given [plaintiff's] accusation of discrimination” he would arrange for a meeting with Human Resources. Garg responded that he was “not accusing anyone” and he did not “think that a formal meeting [was] necessary.”

Garg received additional negative faculty evaluations in May and June, 2017, several of which noted that Garg was still not performing at the expected level for a third-year resident. On June 21, 2017, Bader and Kanzaria met with Garg and provided him with a written notice of dismissal from the diagnostic radiology program for failure to meet performance expectations.

D. SVH Appeal Proceedings

Following his dismissal and while still employed by SVH, Garg appealed pursuant to the appeal process set forth in the Graduate Medical Education Manual. Stage One of that process was for plaintiff to appeal to Bader as Chief of the Radiology Department. Bader, however, recused himself given his dual role as Chief and Program Director.

At Stage Two, the appeal to a Faculty Review Committee, plaintiff had the opportunity to choose and approve each of the members of the committee, all of whom worked with him personally. A hearing occurred on July 29, 2017, during which the Faculty Review Committee decided to uphold Garg's dismissal.

Garg then proceeded to Stage Three of the appeal process, in which the Director of Graduate Medical Education, Yuka-Marie Vinagre, M.D., Ph.D. (“Vinagre”) reviewed Garg's educational portfolio and his personal statement on the appeal. She also upheld Garg's dismissal from the SVH program. Vinagre did, however, offer Garg the opportunity to repeat his R3 year.

Next, at Stage Four, Garg appealed to the CEO of SVH, Jeffrey Welch (“Welch”). Welch also upheld Garg's dismissal after reviewing his educational portfolio and personal statement.

Upon Garg's termination, Bader informed the American Board of Radiology (“ABR”) and New York University Medical Center (“NYU”) that Garg was no longer a resident in SVH's diagnostic radiology residency program. Garg intended to sit for the ABR's Core Exam, a requirement for certification in diagnostic radiology, in November, 2017. Because Garg had not completed the required 36 months of diagnostic radiology residency training required to sit for the exam, his registration for it was cancelled. Garg also had a Match Agreement with NYU for a fellowship in their Vascular and Interventional Radiology Program after the completion of his residency. Plaintiff was required to finish PGY5 and graduate in order to be eligible for that fellowship.

E. ACGME Appeal

In July, 2018, Garg submitted a complaint to the ACGME alleging that the SVH program violated a plethora of ACGME Program Requirements and failed to adhere to them with respect to Garg's participation in the SVH program. In particular, Garg complained about his performance evaluations, contending that the SVH program improperly evaluated his performance.

The ACGME investigated Garg's complaints and conducted a site visit in March, 2019 at SVH as part of the investigation.

In May, 2019, the ACGME advised SVH that it had reviewed the complaint and determined that “no further action” was required.

F. Procedural History

Plaintiff filed a complaint of age discrimination with the ...