Shahbabian v. TriHealth Inc.

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SET SHAHBABIAN, M.D., Plaintiff Counter Defendant-Appellant, v. TRIHEALTH INC., MAYFIELD CLINIC INC., Defendants-Appellees, TRIHEALTH G LLC, dba TriHealth Physician Partners, Defendant Counter Claimant-Appellee.

Nos. 21-3762, 22-3479

United States Court of Appeals, Sixth Circuit

March 9, 2023

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

Before: SUHRHEINRICH, COLE, and MURPHY, Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

After a peer review committee issued negative findings against him because of multiple, serious surgical errors, Dr. Set Shahbabian, a neurosurgeon, relinquished his surgical privileges. His productivity plummeted as a result, giving TriHealth, Inc. and TriHealth G, LLC (collectively "TriHealth"), his employer and the operator of the hospital where he held privileges, the right to recoup the nearly $680,000 it overpaid on his employment contract. Shahbabian refused to pay and instead sued TriHealth and Mayfield Clinic, Inc. ("Mayfield"), a private neurosurgery group, alleging that he was pressured to give up his privileges because of his age. He brought various federal and state law claims, including under the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and Ohio's anti-discrimination laws.

The district court held that Shahbabian failed to create a fact question on any of his twelve claims and granted summary judgment to TriHealth and Mayfield. The district court also granted summary judgment to TriHealth on its breach of contract counterclaim and ordered Shahbabian to repay his unearned compensation plus interest. We affirm.

I.

Since the 1980s, Shahbabian performed most of his surgeries at Good Samaritan Hospital-a facility operated by TriHealth. In 2014, at age seventy, Shahbabian sold his independent practice to, and became an employee of, TriHealth. He and TriHealth signed a five-year employment contract with no expectation of renewal. TriHealth agreed to pay Shahbabian $968,000 annually for satisfying certain productivity metrics. Shahbabian would receive his full salary for the first three years of the contract regardless of his productivity. After that, were Shahbabian not to meet his productivity target, the contract allowed TriHealth to recoup the difference between his compensation and annual productivity targets.

Good Samaritan conditions its physicians' clinical privileges on their participation in a quality review process. Administered by physicians representing a cross-cut of Good Samaritan's various departments, this peer review system is designed to identify and remedy improper, risky, or reckless medical decisions. A physician has the right to appeal negative assessments through Good Samaritan's administrative review process.

Shahbabian's cases were frequently scrutinized for quality-of-care concerns. In 2011, for instance, one of Shahbabian's patients sustained excessive blood loss during surgery, was left paralyzed following the procedure, and later died. The surgery peer review committee found Shahbabian's conduct exhibited "reckless or recurrent at-risk behavior"-the most serious rating a Good Samaritan physician can receive. In 2012, Shahbabian was cited for "at-risk behavior" because another patient experienced abnormal blood loss.

In early 2015, after he became a TriHealth employee, three more of Shahbabian's cases were flagged for reckless or recurrent at-risk behavior. One was because Shahbabian's patient experienced post-surgical complications that required another neurosurgeon to perform a second operation; another because Shahbabian prescribed an unapproved antibiotic that left the patient at risk of severe infection; and a third because Shahbabian failed to remove part of a catheter from a patient before completing surgery. Shahbabian did not appeal any of these findings. Soon after, Dr. George Kerlakian, Good Samaritan's surgery department chair, issued Shahbabian a correction plan limiting his surgical hours and imposing oversight on his more complicated cases.

Meanwhile, Shahbabian's health issues were mounting. He was receiving treatment for worsening anxiety, fatigue, and hypertension. Primary osteoarthritis caused his knees to buckle suddenly. Shahbabian's colleagues saw signs of his physical decline too. Dr. Robert Collins, TriHealth's chief medical officer, observed Shahbabian grip a wall for support just to walk down a hallway. Shahbabian told his doctor that he did not have the stamina he used to and intended to work full time until his income protection ended.

Concern with Shahbabian's quality of care boiled over during a May 18, 2017, surgery peer review committee meeting after two more of his cases were presented. Committee members were frustrated that prior interventions had not corrected Shahbabian's outcomes and felt that they were "simply running into the same problem over and over and over again." There was "enough concern [among committee members] that patient safety was in question and Dr. Shahbabian should not be operating."

After the meeting, Collins and two other doctors in Good Samaritan's medical leadership presented Shahbabian with a choice: he could voluntarily pause his surgical activities pending an evaluation of his cases or they would seek a summary suspension of his surgical privileges during the inquiry. Initially, Shahbabian agreed to suspend his surgeries pending an evaluation. But, before the review could take place, Shahbabian, through his lawyer, informed Good Samaritan that he had decided to "voluntarily relinquish" his surgical privileges.

Unable to perform surgeries, Shahbabian struggled to meet even his reduced productivity target. TriHealth attempted to renegotiate his employment contract, but Shahbabian rejected proposals that he transition into a non-surgical role. Shahbabian's contract remained in place until it expired on May 1, 2019. TriHealth declined to renew it. TriHealth then determined that, based on his productivity levels, it had overpaid Shahbabian by $679,711.61. It sent him a reconciliation notice demanding repayment. Shahbabian refused to pay.

He instead sued TriHealth and Mayfield. TriHealth countersued for breach of contract seeking to recoup Shahbabian's unearned compensation. The district court granted summary judgment to TriHealth and Mayfield on each of Shahbabian's claims. Shahbabian v. TriHealth, Inc., No. 1:18-cv-790, 2021 WL 3110073, at *18 (S.D. Ohio July 22, 2021). It also granted summary judgment for TriHealth on its breach of contract claim and ordered Shahbabian to repay TriHealth $679,711.61. Id. In a subsequent order, the district court awarded pre- and postjudgment interest on TriHealth's money judgment. Shahbabian timely appealed both orders, resulting in two case numbers (Nos. 21-3762 and 22-3479) that were consolidated for purposes of briefing and submission.

II.

We review a grant of summary judgment de novo. Blizzard v. Marion Tech. Coll., 698 F.3d 275, 282 (6th Cir. 2012). Summary judgment is appropriate where "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." Fed.R.Civ.P. 56(a).

A.

The district court held that Shahbabian failed to show direct or circumstantial evidence of age discrimination and could not demonstrate a fact issue as to his age-discrimination related retaliation claims.^[1] The district court also denied him leave to file a TriHealth executive's declaration to support this age discrimination claims. Shahbabian challenges these rulings on appeal.

1. Age Discrimination

Shahbabian argues that TriHealth, aided and abetted by Mayfield, forced him to stop operating "because of" his age. 29 U.S.C. § 623(a)(1). To prevail on an age discrimination claim, a plaintiff must "prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the 'but-for' cause of the challenged employer decision." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009). Shahbabian attempts to prove his claim using both direct and circumstantial evidence.

"Direct evidence is evidence that proves the existence of a fact without requiring any inferences." Rowan v. Lockheed Martin Energy Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). Circumstantial evidence allows a jury to infer unlawful discrimination. See Willard v. Huntington Ford, Inc., 952 F.3d 795, 807 (6th Cir. 2020). We evaluate circumstantial evidence cases under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Miles v. S. Cent. Hum. Res. Agency, Inc., 946 F.3d 883, 887 (6th Cir. 2020). Under that framework, a plaintiff must first show a prima facie case of discrimination. Id. If successful, the employer must offer a legitimate, non-discriminatory reason for the adverse action. See Bledsoe v. Tenn. Valley Auth. Bd. of Dirs., 42 F.4th 568, 581 (6th Cir. 2022). If it does, the plaintiff must demonstrate that the employer's reason was a pretext for discrimination. See Pelcha v. MW Bancorp, Inc., 988 F.3d 318, 325 (6th Cir. 2021).

Initially we question whether Shahbabian can claim TriHealth discriminated against him because "the but-for cause for [his] reduction in work and eventual cessation of surgical operations was, in the final analysis, his own voluntary relinquishment." Shahbabian, 2021 WL 3110073, at *8 (emphasis added); see Mitchell v. Vanderbilt Univ., 389 F.3d 177, 181-82 (6th Cir. 2004) (explaining that to state a prima facie case of age discrimination, a plaintiff must show that he suffered a "materially adverse change in the terms or conditions of . . . employment because of [the] employer's conduct" (...