Kaufman v. Columbia Memorial Hospital

Citations: 2 F. Supp. 3d 265; 29 Am. Disabilities Cas. (BNA) 1268; 2014 U.S. Dist. LEXIS 20096; 2014 WL 652886Docket: No. 1:11-CV-667 (MAD/DRH)

Court: District Court, N.D. New York; February 18, 2014; Federal District Court

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Plaintiff Stewart Kaufman, M.D. alleges age discrimination in violation of the Age Discrimination and Employment Act (ADEA) and New York State Human Rights Law (NYSHRL), as well as discrimination based on disability under the Americans with Disabilities Act (ADA) and NYSHRL. The case involves a motion for summary judgment filed by the Defendants. Kaufman, an orthopedic surgeon, claims that various medical conditions, including surgeries and treatments spanning from 1981 to 2009, qualify as disabilities. Prior to his employment at Columbia Memorial Hospital (CMH), where he entered a three-year contract at age 66, Kaufman practiced alongside Dr. Louis DiGiovanni, who secured a five-year contract with CMH. During testimony, Kaufman expressed that he had intended to reduce his practice after three years but did not formally raise concerns about the disparity in contract lengths with his attorney or CMH. The court's decision on the motion for summary judgment is partially granted and partially denied.

At the time of his hiring, the Plaintiff believed that CMH was aware of the conditions he now claims indicate his disability, except for sleep apnea, which was diagnosed and treated in 2009 during his leave from CMH. After leaving CMH, he was able to continue working independently. On March 18, 2009, CMH officials met with him to discuss a higher-than-average revision rate for total knee replacements, which the Plaintiff contends is misleading since he performed revisions on patients for whom he did not conduct the original surgeries. During this meeting, CMH also raised concerns about his focus and stamina in the operating room, leading to his relief from performing knee replacement surgeries. Following this, in July 2009, CMH officials criticized the duration of some of his hip surgeries, claiming they exceeded the national average; the Plaintiff believes other surgeons had similarly long surgery times.

In Spring 2009, he stopped performing large joint surgeries. Later in July 2009, he underwent a neuropsychological evaluation with Dr. Aaron Philip Nelson, who noted concerns about his ability to practice as an orthopedic surgeon. Dr. Kaufman acknowledged suggestions of poor judgment and attributed his elevated revision rates to using an outdated surgical technique, which he learned was no longer favored. He also recognized that his longer surgical times for hip replacements were due to the strenuous nature of the procedure and his back pain, leading him to cease performing these surgeries. He continues to treat hip fractures and perform less physically demanding procedures, estimating he performs 4-6 cases weekly. He has two years remaining on his hospital contract and is considering reducing his surgical workload thereafter, possibly focusing on chart reviews.

A 67-year-old physician, referred for evaluation due to concerns about his capacity to practice as an orthopedic surgeon, exhibits a complex medical history. His baseline intellectual ability is estimated to be superior, but neuropsychological testing shows variability in attention and executive function. Performance in simple attention tasks was average, but likely below his optimal baseline. He struggled with the Wisconsin Card Sorting Test (WCST), indicating difficulties with nonverbal reasoning and feedback response. The Connors Continuous Performance Test (CPT) revealed deficits in sustained attention, while he made errors in response inhibition tasks. Although his anterograde memory performance was mostly excellent, he showed a shallow learning curve on the Rey Auditory Verbal Learning Test (RAVLT), indicating poor self-monitoring. Manual motor speed and dexterity tests suggested reduced agility, potentially related to chemotherapy-induced peripheral neuropathy.

His medical history includes small and large-cell lymphoma, stem cell transplant, prostate surgery with complications, multiple spine surgeries, and cardiac arrhythmia, with treatments involving CHOP chemotherapy and Rituxan, which may lead to neurotoxicity and cerebrovascular issues. The examination's findings suggest possible frontal and subcortical brain involvement, commonly linked to ischemic vascular disease, but lack definitive basis due to the absence of brain imaging. Other potential causes include depression or medication side effects, though he denies any depressive symptoms.

These findings raise concerns about his ability to maintain sustained attention, impacting his practice. Consequently, it is recommended that his practice be closely monitored. Following this assessment, on August 10, 2009, he was advised by CMH officials to take a leave of absence until further evaluations confirmed he could safely continue practicing. The physician requested monitoring instead of taking leave. While on leave, CMH compensated him $37,000 in vacation and benefit time. A subsequent meeting on August 24, 2009, addressed questions regarding Dr. Nelson’s report, leading to correspondence from Defendant Chapin to Dr. Nelson, which included the physician.

Dr. Nelson's email dated August 25, 2009, expressed concerns about the Plaintiff's ability to maintain attention during tasks, emphasizing that fatigue could exacerbate these issues. He recommended close monitoring of the Plaintiff's work performance, to be arranged by the Plaintiff's clinical chief, until satisfactory performance was confirmed. On August 26, 2009, Dr. Albert M. Galaburda diagnosed the Plaintiff with mild microvascular changes in the brain and responded to the Plaintiff's inquiries about his MRI, stating it was not severe but could increase vulnerability to cognitive changes. Dr. Galaburda advised against practicing medicine until further evaluations, particularly for sleep abnormalities, were completed. During an August 28, 2009, meeting with CMH leadership, the Plaintiff was urged to follow up on Dr. Nelson’s neurological testing recommendations. CMH expressed concern about potential liability if the Plaintiff resumed practice, given prior performance issues and recent incidents. The Plaintiff requested supervision by a physician's assistant, as suggested by Dr. Nelson, but CMH officials indicated they would not accommodate this request and warned that the Plaintiff's contract could be terminated if he was deemed a danger to himself or others.

In September 2009, the Plaintiff was diagnosed with severe obstructive sleep apnea by Dr. Jacqueline Chang and began using a CPAP device. By December 3, 2009, during a follow-up with Dr. Galaburda, the Plaintiff reported significant improvements in his condition, stating he felt much more rested and could engage in activities such as reading for extended periods. Despite these improvements, Dr. Galaburda expressed concerns about the Plaintiff's understanding of the cognitive demands of seeing patients and recommended he wait 2-3 more months for a follow-up evaluation with Dr. Nelson at BWH, while continuing treatment at the Sleep Unit.

The Plaintiff did not inform CMH of his diagnoses or treatment progress prior to his termination. His medical staff privileges at CMH, set to expire on November 30, 2009, were not re-applied for, and CMH indicated that any renewal would require a neurologist's evaluation, as advised by Dr. Nelson. In correspondence, the Plaintiff acknowledged that his application for privileges would depend on satisfactory consultation with a neurologist.

The Plaintiff requested accommodations for one-on-one monitoring while practicing, but CMH deemed this impractical. On January 18, 2010, he re-applied for staff privileges without providing the required follow-up medical assessment. According to his Employment Agreement, CMH could terminate his employment for just cause, including the non-renewal of medical staff privileges or actions deemed a threat to patient safety.

On January 27, 2010, CMH terminated the Plaintiff’s employment, citing failure to reapply for membership in the Hospital’s Medical Staff and failure to provide a satisfactory follow-up medical assessment despite multiple requests. The termination was executed under specific sections of the employment Agreement, with the letter indicating that no unpaid compensation was owed to the Plaintiff. Following the termination, the Plaintiff exhausted administrative remedies with the EEOC and NYHRC before filing a lawsuit.

In the discussion of summary judgment standards, a court can grant such a motion only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. The court must resolve ambiguities in favor of the nonmoving party and cannot rely solely on the moving party's assertions if the nonmovant does not respond or dispute the facts. 

In employment discrimination cases, courts are particularly cautious about granting summary judgment due to the difficulty of proving an employer’s intent, which is often inferred from circumstantial evidence. However, the principles of avoiding lengthy and costly trials apply equally to discrimination cases as in other legal matters, making summary judgment a viable option even in these contexts.

Summary judgment may be appropriate in discrimination cases, despite their fact-intensive nature. Plaintiffs must provide more than vague assertions to oppose such motions; they need to present concrete evidence demonstrating that their version of events is credible. If the evidence is only marginally relevant or not substantially probative, summary judgment can be granted. Discrimination cases often require an examination of individual motivations, which traditionally favors jury adjudication over judicial summary judgment. However, when faced with a properly supported motion for summary judgment, a plaintiff must present evidence sufficient for a reasonable jury to rule in their favor, rather than merely expressing doubt about the facts. Summary judgment cannot be granted solely on the belief that the plaintiff may not succeed at trial; there must be either insufficient evidence to support the plaintiff's claims or overwhelming evidence favoring the opposing party. If an employer provides strong evidence justifying its actions and the plaintiff's claims are solely based on conclusory allegations, summary judgment may be granted in favor of the employer. Each claim is analyzed under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, which has been applied across various discrimination claims, including those under the Age Discrimination in Employment Act (ADEA) and the New York State Human Rights Law (NYSHRL).

The plaintiff must first establish a prima facie case of discrimination under the McDonnell Douglas framework, which involves demonstrating that the defendant engaged in discriminatory practices. If successful, the burden then shifts to the defendant to provide a legitimate, nondiscriminatory reason for their actions. The plaintiff may challenge this justification by proving it is false and that discrimination was the actual cause of the adverse employment action. 

In age discrimination claims under the ADEA, following the Supreme Court's ruling in Gross v. FBL Financial Services, the plaintiff must show that age was the "but-for" cause of the adverse action, rather than merely a contributing factor. This "but-for" standard does not extend to ADA and NYSHRL disability discrimination claims, where a mixed-motive theory can be applied, allowing plaintiffs to argue that disability discrimination was a motivating factor in their termination.

Defendants argue that the plaintiff has failed to establish a prima facie case for both disability and age discrimination, and that their nondiscriminatory justifications are valid. They also contend that the plaintiff's breach of contract claim related to Medical Staff By-Laws is meritless and time-barred, and they seek summary judgment on their unjust enrichment counterclaim.

To establish a prima facie case of disability discrimination under the ADA, the plaintiff must demonstrate that the defendant is covered by the ADA, the plaintiff has a disability or is perceived as having one, is qualified for the job, and suffered an adverse employment action due to the disability. The elements for a prima facie case under the NYSHRL are aligned with those under the ADA.

Plaintiff's burden to demonstrate a prima facie case of disability discrimination is challenged by Defendants, who assert that Plaintiff does not qualify as disabled under the ADA. The ADA defines a "disability" as a substantial limitation in major life activities, a history of such an impairment, or being perceived as having one. Major life activities include various functions such as caring for oneself, working, and communicating. The Court finds evidence of impairments claimed by Plaintiff that could limit major life activities, suggesting a reasonable jury might conclude that he is disabled under both the ADA and NYSHRL. 

Defendants also argue that Plaintiff was not qualified to perform his job as an orthopedic surgeon. The Court must assess whether Plaintiff could perform essential job functions with or without reasonable accommodation while considering the "direct threat" standard concerning health and safety risks posed by the employee. However, the Court notes a lack of evidence regarding the essential functions of Plaintiff's role, making it difficult to assess his qualifications. Despite this, the Court observes substantial factual questions regarding Plaintiff’s qualifications, highlighting that he continued to conduct medical examinations post-termination and requested reasonable accommodations that were not adequately considered by CMH. The determination of whether these accommodations would impose undue hardship is ultimately a matter for a jury to resolve.

Plaintiff established that he experienced an adverse employment action, but Defendants contend that he failed to demonstrate this action was related to his disability. They argue that Plaintiff's claims are based on conclusory assertions rather than concrete evidence, particularly regarding disparate treatment compared to non-disabled colleagues. Plaintiff acknowledged that CMH was aware of his medical conditions when hired, except for a sleep apnea diagnosis that occurred while he was on leave. To prove discriminatory intent, a plaintiff must present evidence that suggests termination occurred under circumstances indicating discrimination. This evidence can include the decision-making process, historical context, and relevant statements from decision-makers.

Plaintiff claims that the "timing and context" of Defendants' actions, perceived differential treatment, concerns about his cognitive abilities, and the hiring of a non-disabled replacement imply discriminatory intent. However, the Court found these assertions to be conclusory and lacking in supporting evidence. Plaintiff did not adequately demonstrate how the timing and context indicated discrimination nor did he identify similarly situated non-disabled physicians who were treated differently. Additionally, Defendants' concerns about potential risks to patients were deemed legitimate rather than indicative of discrimination. Consequently, the Court ruled that Plaintiff did not meet his burden of proof for his disability discrimination claims, granting Defendants' motion for summary judgment.

Regarding the Age Discrimination in Employment Act (ADEA) and New York State Human Rights Law (NYSHRL) claims, a prima facie case requires showing that the plaintiff is in a protected age group, qualified for the position, experienced adverse action, and that the action occurred under circumstances suggesting discrimination. Plaintiff alleges age discrimination based on receiving a shorter employment agreement than younger peers, being placed on paid leave, denial of Medical Staff privileges, and termination.

Plaintiff's burden to establish a prima facie case of age discrimination is challenged by Defendants, who assert that Plaintiff was not qualified for his position. A significant factual question exists regarding this qualification. Defendants also argue that Plaintiff has not provided sufficient evidence to infer discrimination. In his defense, Plaintiff reiterates previously rejected arguments related to his disability claims but introduces new facts pertinent to age discrimination. Specifically, he highlights that he received a three-year contract while his younger colleague, Dr. DiGiovanni, was offered a five-year contract, suggesting age discrimination. 

Although Defendants assert legitimate reasons for this disparity, those reasons are not to be considered at this stage. Plaintiff has presented enough facts for a reasonable jury to infer that the shorter contract was due to age discrimination. Consequently, under the McDonnell Douglas framework, the burden shifts to Defendants to provide legitimate, non-discriminatory reasons for the contract length difference. Defendants cite financial data indicating that Plaintiff generated lower revenues and patient volumes than Dr. DiGiovanni, claiming this justifies the shorter contract. They also mention that Dr. Kaufman intended to reduce his surgical responsibilities over time, reflecting differing long-term goals. 

Having articulated these reasons, the burden returns to Plaintiff to demonstrate that Defendants’ justifications are pretextual and that age was the "but-for" cause of the adverse employment action, rather than a mere motivating factor. However, Plaintiff has not produced evidence to support the claim that Defendants' stated reasons were pretextual or that age discrimination was the primary cause of the adverse action.

Plaintiff has not provided evidence to refute Defendants' claims regarding his lower gross revenues and patient volume compared to his partners, as established in Abdu-Brisson v. Delta Air Lines, Inc. Furthermore, Plaintiff failed to challenge Defendants' assertion that the three-year term of his Employment Agreement reflected the parties' intentions and his desire to potentially change his practice thereafter. He did not argue for an extension of this term or show intent to continue his orthopedic surgery duties beyond three years. As a result, Plaintiff has not met the burden of proving age discrimination, leading to the granting of Defendants’ summary judgment motion on these claims.

Regarding individual liability, the Court has dismissed Plaintiff's age and disability discrimination claims under the New York State Human Rights Law (NYSHRL), noting that without an established violation by another party, individual employees like Cahalan and Chapin cannot be held liable for aiding or abetting such violations, as supported by Strauss v. New York State Dep’t of Educ. Plaintiff did not contest this aspect, resulting in the granting of summary judgment for Cahalan and Chapin as well.

In the breach of contract claim, Plaintiff alleges Defendants terminated him without just cause and failed to follow the Fair Hearing Plan outlined in the Medical Staff By-Laws. Defendants contend this claim is not legally valid and is time-barred, citing that New York law does not recognize hospital bylaws as enforceable contracts. However, the Court of Appeals in Mason acknowledged that bylaws could constitute a contract under certain conditions. Plaintiff argues that the Employment Agreement incorporates the Medical Staff By-Laws, specifically indicating that termination may occur due to actions related to these bylaws. Additionally, the Employment Agreement requires compliance with these bylaws as a condition of employment.

Bylaws were incorporated into the Plaintiff's Employment Agreement, establishing a property interest in staff privileges, as supported by case law. The bylaws include a due process procedure, the ‘Fair Hearing Plan,’ to address issues of clinical privileges. The Defendants did not contest the Plaintiff's claim that this process was not provided, leading to the denial of their summary judgment motion regarding the breach of contract claim.

For the unjust enrichment counterclaim, the moving party must demonstrate that the Defendant unjustly benefited from the Plaintiff's contributions. The court noted that unjust enrichment claims rely on quasi-contract principles, which apply only when no enforceable contract governs the subject matter. The Defendants claimed entitlement to repayment of $37,000 paid to the Plaintiff during his leave, arguing that these were unearned benefits. However, the court found insufficient evidence to grant summary judgment, as the record lacked detailed financial statements and clarity on the equity issues. Additionally, the Employment Agreement likely precludes the unjust enrichment claim. Consequently, the Defendants' motion for summary judgment on the unjust enrichment counterclaim was denied.

The Court has reviewed the entire record, parties’ submissions, and applicable law, resulting in the following rulings: Defendants’ motion for summary judgment is partially granted and partially denied. Specifically, the motion is granted concerning Plaintiffs' age and disability discrimination claims, as well as individual claims against Defendants Cahalan and Chapin. Conversely, the motion is denied for Plaintiffs' breach of contract claim and Defendants’ unjust enrichment counterclaim. Defendants Cahalan and Chapin are dismissed from the action. A telephone conference is scheduled for March 4, 2014, at 10:00 a.m. to discuss setting a trial date. Additionally, the Clerk of the Court is instructed to serve a copy of the Memorandum-Decision and Order to all parties per Local Rules. The Court notes a dispute regarding whether Plaintiff voluntarily ceased surgeries; however, it determines the claim pertains to breach of contract, thus not requiring consideration of Defendants’ argument about the claim being subject to a four-month statute of limitations under N.Y. C.P.L.R. Article 78.