Hamad v. Nassau County Medical Center

191 F.Supp.2d 286

Delfin P. HAMAD, M.D., Plaintiff v. NASSAU COUNTY MEDICAL CENTER, and Jerald C. Newman, Ralph Ger M.D., Joan McInerney M.D., David Westring M.D., Joseph R. Erazo, in their official capacity and individually, Defendants.

No. 98-CV-4320 (JS).

United States District Court, E.D. New York.

March 20, 2000.

Opinion Granting Reconsideration in Part December 13, 2000.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

L. Lynette Sarno, Thurm & Heller, LLP, New York City, for Plaintiff.

Stewart J. Epstein, Snitow & Cunningham, LLP, New York City, for Defendants.

MEMORANDUM & ORDER

SEYBERT, District Judge.

Pending before the Court is the defendants' motion, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the Amended Complaint.

PROCEDURAL BACKGROUND

Plaintiff Dr. Delfin P. Hamad ("Dr. Hamad" or "Plaintiff") commenced the instant action alleging violation of his constitutional rights to due process and equal protection in connection with the termination of his employment and denial of operating room privileges at the Nassau County Medical Center ("NCMC"). Plaintiff's claims are predicated upon (1) Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.; (2) the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq.; (3) the New York Human Rights Law § 292, et seq. ("NYSHRL"); (4) the Fifth and Fourteenth Amendments of the United States Constitution; (5) Article 1, Section 6 of the New York State Constitution; (6) 42 U.S.C. §§ 1981 and 1983; and (7) the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001-1462.

Pending before the Court is the motion of defendants, NCMC, Nassau County, Jerald C. Newman, Ralph Ger, M.D., Joan McInerney, M.D., David Westring, M.D., and Joseph R. Erazo (collectively referred to herein as the "Defendants"), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the amended complaint.

In addition, the Court is in receipt of Defendants' request to supplement the above motion with documents relating to the settlement and proceedings before the Office of Professional Misconduct, and to convert the present motion to a motion for summary judgment. The Court has reviewed the defendants' request and the plaintiff's opposition thereto, and denies the request. Following receipt of the ruling below, Defendant is directed to contact the Court in order to schedule a premotion conference in accordance with my Individual Rules.

FACTUAL BACKGROUND

Dr. Hamad is a United States Citizen of Filipino descent who began working for NCMC in 1975 at the approximate age of 40. (Amended Complaint ("Cplt.") PP 5, 6, 17). Dr. Hamad began his twenty-one year employment at NCMC as a voluntary attending in surgery. (Cplt. P 16). From 1975 through May 1996, Dr. Hamad was a full-time physician in the surgical emergency room of NCMC. (Cplt. P 17). During this period Dr. Hamad performed vascular and laparoscopic surgery without incident. (Cplt. P 18). The Chief of the Surgical Department knew that Dr. Hamad was given the responsibility of handling vascular and laparoscopic surgeries. (Cplt. P 18).

On or about January 15, 1996, Dr. Hamad submitted a request for additional clinical privileges, including privileges for certain vascular access procedures and a laparoscopic procedure. (Cplt. P 19). In May 1996, Dr. Hamad wrote a letter to defendant Dr. Ralph Ger, the Acting Chair of the Department of Surgery, requesting permission to attend emergency on-call cases so that Dr. Hamad could attend surgeries on an as-needed basis. (Cplt. P 20). In response to the request, Dr. Hamad was given the responsibility to attend surgeries on an as-needed basis. (Cplt. P 21). Dr. Hamad did not receive compensation for such services. (Cplt. P 20).

Thereafter, on June 24, 1996, Dr. Hamad received a letter from Jerald C. Newman, President of the Board of Managers of NCMC. (Cplt. P 22). The letter informed Dr. Hamad that he was being reappointed to the staff of NCMC as an attending in the Division of General Surgery, Department of Surgery. Id. This reappointment process was done bi-annually. (Cplt. P 23). Subsequently, Dr. Hamad's name began to appear on the surgical schedules for vascular and general surgical cases. Id. Thereafter, Dr. Hamad's name continued to appear on the surgical on-call schedule for June, July, August, and September of 1996. (Cplt. P 25). These schedules were prepared by the Department of Surgery under the supervision and direction of the Director of Surgery, who selected and scheduled Dr. Hamad for the surgeries he performed. Id. During this time period Dr. Hamad openly performed eleven laparoscopic surgeries with residents of NCMC without complaint. (Cplt. P 26).

On or about October 2, 1996, Dr. Hamad met with Dr. Ger regarding the possible suspension of Hamad's privileges. (Cplt. P 28). At that meeting, Dr. Ger. informed Dr. Hamad that he could not have vascular privileges at NCMC, and it was questioned whether Dr. Hamad had the privileges to carry out general surgery. Id.

On October 18, 1996, Dr. Ger notified Dr. Hamad that his privileges were being "removed immediately" and "unjustifiably accused" Dr. Hamad of performing laparoscopic surgery and vascular surgery without being privileged to carry out these procedures. (Cplt. P 29). Thereafter, Dr. Hamad remained at NCMC but could no longer perform elective surgical privileges in the operating room. (Cplt. P 30).

On December 24, 1996, defendant Dr. Joan McInerney, Chair of the Department of Emergency Medicine at NCMC, notified Hamad that he was suspended without pay from his position as a surgical attending in the Emergency Department. (Cplt P 33). On that same day, defendant David Westring, Medical Director of NCMC, notified the New York State Department of Health, Office of Professional Medical Conduct, that Dr. Ger had denied all operating room privileges to Dr. Hamad. (Cplt. P 31). Defendants filed a report with the New York State Department of Health regarding Dr. Hamad's suspension of privileges on January 9, 1997. (Cplt. P 32).

Subsequently, on January 9, 1997, defendant Joseph R. Ezaro, then Executive Director and Chief Executive Officer of NCMC, wrote to Dr. Hamad advising him that his employment was terminated at NCMC (Cplt. P 34). Furthermore, Dr. Hamad was informed that his professional privileges at NCMC were withdrawn because he performed several surgical procedures without the requisite privileges. Id. Dr. Hamad was sixty-three years old and one year shy of having his pension vested when NCMC terminated his employment. (Cplt. P 35).

Following his termination, Dr. Hamad requested that a hearing be held by his peers at NCMC, pursuant to NCMC By-Laws, to determine whether his termination was proper. (Cplt. P 38). A "so-called `hearing'" was commenced on April 9, 1997, before a Committee of four doctors from various departments within the hospital and a chairperson of the Ad Hoc Committee. (Cplt.39). Both Dr. Ger and Dr. Hamad testified at the hearing. Id.

On April 23, 1997, before the hearing was concluded, defendant Dr. David Westring, Acting Medical Director of NCMC, filed a report with the National Practitioner Data Bank. (Cplt. P 40). This complaint notified all hospitals and medical doctors of the termination of Dr. Hamad's clinical privileges and employment at NCMC based upon Dr. Hamad's "performance of laparoscopic surgery and vascular surgery at Nassau County Medical Center without privileges." Id. Thereafter, the hearing continued on June 29, 1997, at which time Dr. Hamad was denied permission to call two witnesses: Dr. Joan McInerney and an outside expert on granting physician's surgical privileges, in violation of NCMC By-Laws, Art. 8 § 2(d)(10) and (11), (Cplt. P 41).

On July 1, 1997, the Ad Hoc Committee Chairperson, Dr. Lynn Weiss, issued a memorandum decision on the hearing which stated, that "Dr. Hamad on two (2) occasions performed elective surgery for which he was not appropriately credentialed." (Cplt. P 42). On September 22, 1997, Dr. Hamad appealed to the NCMC Board of Managers pursuant to NCMC By-Laws Art. 8, § 2(c)(7) for its failure to allow the testimony of the two witnesses. (Cplt. P 43).

On October 8, 1997, after appellate argument before the Board of Managers, a decision was rendered allowing Dr. Hamad to call defendant Dr. Joan McInerney as a witness and allowing the outside expert to testify as to all relevant issues raised regarding Dr. Hamad's complaint. (Cplt. P 44).

Thereafter, Dr. Hamad requested to be reinstated to his former position as surgical attending in the Emergency Department at NCMC and that his surgical privileges be reinstated because, as acknowledged by the Board of Managers, Dr. Hamad's due process rights had been violated at the initial hearing. Id. Although a subsequent hearing was scheduled for March 1998, that hearing was never commenced "as a result dilatory tactics by NCMC." (Cplt. P 46). Dr. Hamad further asserts that NCMC refused to pay for his accrued vacation and sick days, totaling $48,824.22. (Cplt. P 47).

Upon his termination, Dr. Hamad was replaced by a younger Caucasian male. (Cplt. P 48). In addition, at the time of termination Dr. Hamad was the oldest full-time physician in the Emergency Room. Id. Dr. Hamad claims that he was the only person of color in the Department of Surgery and, despite allegations of misconduct and malpractice, other Caucasian physicians in the department were not subjected to adverse employment decisions. (Cplt. P 50).

Subsequently, Dr. Hamad filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and a right to sue letter was issued on or about March 20, 1998. (Cplt. P 51).

DISCUSSION

I. STANDARDS GOVERNING A 12(B)(6) MOTION TO DISMISS

A district court should grant a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a...