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March 25, 1996

MARK A. D'ANDREA, Plaintiff, against SAMEER RAFLA-DEMETRIOUS, METHODIST HOSPITAL OF BROOKLYN, THE AMERICAN BOARD OF RADIOLOGY, KENNETH L. KRABBENHOFT, in his capacities as Secretary and Executive Director of the American Board of Radiology, Defendants.

The opinion of the court was delivered by: GLEESON


 JOHN GLEESON, United States District Judge:

 Plaintiff, Mark A. D'Andrea ("D'Andrea"), was a medical resident at Methodist Hospital of Brooklyn ("Methodist"), under the supervision of Dr. Sameer Rafla-Demetrious ("Rafla"). D'Andrea brought this action against Methodist and Rafla claiming that during the course of his residency in Methodist's Department of Radiation Oncology ("DRO"), Methodist invaded his privacy and that Rafla and Methodist (1) breached the contract between Methodist and D'Andrea; (2) tortiously interfered with D'Andrea's contract with the American Board of Radiology ("ABR"); (3) tortiously interfered with D'Andrea's prospective economic gain; and (4) committed a prima facie tort. *fn1" Rafla and Methodist have moved for summary judgment on all claims against them. *fn2" For the reasons stated herein, defendants' motion is granted with regard to all claims except the invasion of privacy claim.


 In January 1986, shortly after graduating from medical school, D'Andrea entered into a contract with Methodist, a large teaching and research institution in the Park Slope area of Brooklyn, New York. Under this contract, D'Andrea was to begin a three-year residency program at Methodist on July 1, 1986, in the DRO, and upon D'Andrea's completion of Methodist's program, on June 30, 1989, the hospital would issue him an appropriate "certificate of satisfactory completion." This residency program was directed by Rafla, who was responsible for both issuing the completion certificates and reporting to the ABR on a resident's fitness for certification by the ABR.

 Before examining and certifying residents for the subspecialty of radiation oncology, the ABR required all candidates to submit an evaluation from their program directors. However, a satisfactory evaluation from one's program director did not necessarily mean that a candidate was qualified for ABR examination and certification. The ABR had its own prerequisites to examining and certifying physicians, which sometimes were more stringent than the requirements of residency programs, and it was within the sole discretion of the ABR to determine whether a candidate was fit for examination and certification. For example, the Methodist program allowed residents to take at least forty-four paid days off per year, while the ABR permitted a resident to accrue only thirty days off per year.

 In his first year as a resident, D'Andrea received what Rafla considered substandard evaluations from the physicians for whom he worked. During this year, D'Andrea had been evaluated by attending physicians Youssef and Parikh, who rated him on a battery of characteristics generally as "fair" or "good," with only an occasional "very good," on a scale of "poor," "fair," "good," "very good," and "outstanding." Moreover, D'Andrea performed poorly on internal Methodist examinations. During this year, Rafla warned D'Andrea in two formal letters that his patient care, internal exam performance, and professional conduct were substandard, and he encouraged D'Andrea to improve. During this time, D'Andrea, by his own admission, was "moonlighting" at another hospital without the approval of Rafla, which was prohibited in his contract with Methodist.

 In D'Andrea's second year of his residency, he continued to moonlight at another hospital without Rafla's approval and, by his own admission, took 50 days off. In the third year of his residency, D'Andrea continued moonlighting and has admitted to taking 60 days off. In fact, D'Andrea admitted to operating his own private medical practice in Harlem and devoting at least six hours per week to this practice. It is not surprising, therefore, that in D'Andrea's second year, one physician rated D'Andrea's performance as "marginal" on "availability and punctuality."

 Early in the second year of his residency, in September 1987, D'Andrea applied for ABR certification in therapeutic radiology. In accordance with its customary procedure, the ABR sought Rafla's opinion as to whether D'Andrea would achieve adequate professional qualifications to be certified by the ABR and be prepared for the oral examination in radiation oncology at the end of his residency in June 1989. In February 1988, Rafla verified that D'Andrea would attain adequate professional qualifications.

 In October 1988, D'Andrea took the written portion of the ABR examination and failed, scoring in only the twelfth percentile on the clinical oncology portion. In February 1989, D'Andrea applied again to take the ABR written examination, and the ABR again sought Rafla's opinion. This time, at the ABR's request for information regarding D'Andrea's absences from the residency program, Rafla informed the ABR by telephone and letter that D'Andrea had been out for a total of 102 days in 1988 *fn3" -- a figure which had been given to Rafla by Katherine Saleh, an administrator responsible for keeping daily records of residents' whereabouts. Before reporting these absences to the ABR, Rafla instructed Saleh to "be sure of your facts." Despite this admonition, Saleh's figure was wrong; D'Andrea was actually absent for 81.5 days according to Methodist's records during 1988. *fn4"

 Shortly after Rafla's letter and telephone call, the ABR apparently became concerned about D'Andrea's absences. It sent a letter to him immediately after he applied for examination and certification, informing him that his absences exceeded that allowed under ABR policy. At this point, D'Andrea directed Saleh to inform the ABR that Rafla was mistaken and that he had only taken off 77, not 102, days during 1988. Saleh did so. Several letters were sent back and forth between the ABR and either D'Andrea or Saleh, all relating to whether the ABR would allow D'Andrea to take the oral examination and eventually become certified. In one letter sent by Saleh at the direction of D'Andrea, Saleh informed the ABR that from the beginning of D'Andrea's residency to that date, D'Andrea had taken 98 days off. *fn5" Rafla was not involved in this correspondence.

 Finally, in April 1989, the ABR notified D'Andrea that he had accumulated an excessive number of days off, and that its policy was to require 34 days of additional residency training to compensate for his absences before it would administer the oral portion of the certifying examination to him. The ABR informed D'Andrea that based on the information Saleh and D'Andrea had provided, he had taken more than 30 days off per year in contravention of ABR policy. However, D'Andrea attempted through May 1989 to persuade the ABR to allow him to take the examination anyway and sent letters to the ABR trying to explain his absences.

 At the end of May 1989, the ABR contacted Rafla for clarification on D'Andrea's absences and his opinion as to whether D'Andrea would fulfill his residency requirements by June 1989, as originally planned. On June 12, 1989, Rafla wrote to the ABR as follows:

In answer to your question regarding the assessment of Dr. D'Andrea I have reviewed his performance during his training and discussed the matter extensively with all the clinical mentors, including those in other departments through which he rotated (surgery, pathology).
In my opinion this resident needs a further training period of 4 months beyond June 30, 1989. This decision is based on the following:
1. Excessive absence from the program in 1988 numbering at least 102 working days.
2. Poor attendance and performance in some of the rotations - in surgery, the Director of the program, refused to certify the month.
3. Dr. D'Andrea declined to take necessary steps for rotation in Pediatric Radiation Oncology as planned in the program. He insisted upon spending the month of June 1989 in clinical research. Despite the fact that guidelines were clearly communicated to him in writing, he absented himself from the department for the first week of June, prompting a telegram of stiff warning to him.
I recommend that part of this 4 month period be spent in Pediatrics training.

 (Defendant's Mem. of Law, Ex. GG; hereinafter referred to as "the June 12 letter"). In the June 12 letter, Rafla also advised the ABR that any information it had received to the contrary from Saleh or D'Andrea was sent without his authorization. Finally, Rafla informed the ABR that D'Andrea's absences had adversely affected his training and he had performed poorly in his evaluations and examinations at Methodist.

 On the same day that he wrote the above-described letter to the ABR, Rafla wrote a memorandum of reprimand to Saleh and D'Andrea's personnel files. The memorandum described Saleh's unauthorized transmission of information to the ABR in violation of department rules, and a further transgression -- the unauthorized appearance of Rafla's signature on one of the pages Saleh sent to the ABR. It also described subsequent conversations Rafla had had with Saleh and D'Andrea about their misconduct. The memorandum stated that D'Andrea had admitted his responsibility for the unauthorized use of Rafla's signature but had claimed that the page containing it had not been sent. Rafla's memorandum concluded:

Dr. D'Andrea's behavior and action were most reprehensible and vergying [sic] on dishonesty. That will be part of his record.

 On June 16, 1989, the ABR wrote to D'Andrea stating that based on the June 12 letter, D'Andrea would be required to train for four additional months after the official end of his residency on June 30, 1989, before being able to take the ABR oral examination and become ABR certified. The ABR told D'Andrea that he should notify the ABR office upon completing his additional training.

 Ten days later, D'Andrea was awarded a hospital certificate stating:

This is to certify that Mark A. D'Andrea, M.D. has served as Resident in Radiation Oncology at this hospital from July ...

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