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JOHNSON v. NYACK HOSP.

February 11, 1997

FLETCHER J. JOHNSON, M.D., et ano., Plaintiffs, against NYACK HOSPITAL, et al., Defendants.


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 This action in its present form involves a claim by plaintiff Fletcher J. Johnson, M.D., that his 1994 application for reinstatement of vascular and thoracic surgical privileges at defendant Nyack Hospital was denied on the basis of race. This allegedly violated 42 U.S.C. § 1981 and, because it is said to have taken place pursuant to a racially motivated conspiracy, 42 U.S.C. § 1985(3) as well. Defendants move for partial summary judgment dismissing (1) the amended complaint as to certain defendants on the ground that there is no genuine issue of fact as to their participation in the 1994 decision, and (2) the conspiracy claim under 42 U.S.C. § 1985(3) as against all defendants on the ground that the defendants are incapable as a matter of law of conspiring to violate the civil rights laws in connection with the 1994 action. Dr. Johnson moves for leave to file a second amended complaint in an effort to cure any of the alleged deficiencies relied upon by defendants. As the only substantial issue regarding the amendment is the sufficiency of the proposed changes, leave to amend is granted and the Court will treat defendants' motion as addressed to the second amended complaint. *fn1"

 This dispute has been the subject of three reported decisions of this Court and two of the Second Circuit. *fn2" The Court assumes familiarity with those opinions and therefore refers to the facts only to the extent necessary to this decision.

 I

 The defendants in this case, apart from Nyack Hospital, are Kenneth Steinglass, M.D., Daniel Berson, M.D., Lawrence Simon, M.D., James Dawson, Donald Winikoff, M.D., and Greger Anderson. *fn3" All allegedly were involved in Nyack's 1987 revocation of Dr. Johnson's vascular/thoracic surgical privileges. Defendants, however, maintain that Drs. Berson, Winikoff and Steinglass and Mr. Dawson had no involvement whatever in the 1994 denial of reinstatement. As it already has been established that plaintiff's claims with respect to the 1987 decision are time-barred, Johnson II, defendants maintain that the action should be dismissed as against these defendants.

 A.

 Dr. Berson was Chief of the Department of Surgery at Nyack from 1982 to 1988. (Cpt *fn4" P 13) Mr. Dawson was president of the hospital from 1978 to 1991. (Id. P 14) Dr. Winikoff has been co-chair of the Peer Review Committee from before 1987 to date. (Id. P 15)

 Dr. Berson and Mr. Dawson allegedly requested that Dr. Steinglass review all of Dr. Johnson's vascular/thoracic surgery cases, a review which is said to have led to the 1987 revocation of privileges. (Id. PP 46-76) Dr. Winikoff allegedly chaired a meeting of the Peer Review Committee on February 24, 1987 at which the committee allegedly rubber stamped the Steinglass review. (Id. P 63) The crux of plaintiff's argument concerning these three defendants is that their 1987 actions were part of a racially motivated conspiracy directed at Dr. Johnson and that the denial of reinstatement in 1994 was a necessary part of the alleged plan to eliminate African-Americans from the vascular/thoracic surgical staff at Nyack. (Pl. Mem. 8) As they put it, defendants "Berson, Dawson, and Winikoff's actions with respect to the 1987 revocation of Dr. Johnson's privileges was, and is, part of the conspiracy to deny Dr. Johnson -- because of his race -- the right to hold thoracic and vascular privileges at Nyack." (Id. at 13-14) There is no suggestion and no evidence, however, that any of these three defendants had anything to do with the 1994 action apart from the allegation that the 1994 decision was based in part on 1987 events. On this basis, plaintiff asserts -- without citation of any authority whatsoever -- that he has a timely civil rights claim against these defendants based on the 1994 action. Defendants maintain the contrary, although they too cite no authority. It is helpful, therefore, to return to first principles.

 To begin with, these defendants are sued under both Sections 1981 and 1985(3). The former claim is that each of them, either as a principal or perhaps as an aider and abettor, deprived Dr. Johnson of his federally protected right to equality in making and enforcing contracts, here the contract implicit in the medical staff relationship with Nyack Hospital. The latter asserts that the defendants entered into a conspiracy to deny him that right on the ground of his race. It is important consider these claims separately for purposes of this motion.

 As the only allegations against these defendants pertinent to the Section 1981 claim are of 1987 actions, the Court must determine the effect of Johnson II, which dismissed claims based on the 1987 events as untimely. This requires consideration of what claims Dr. Johnson had and when they accrued.

 "Generally, a cause of action accrues and [the limitations period] begins to run when a defendant commits an act that injures a plaintiff[] . . . . Each time a plaintiff is injured by an act of the defendant, a cause of action accrues to him to recover the damages caused by the act and . . ., as to those damages, the statute of limitations runs from the commission of the act." Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338-39, 28 L. Ed. 2d 77, 91 S. Ct. 795 (1990). But Zenith articulated another important principle as well. Each "cause of action that so accrues entitles a plaintiff to recover not only those damages which he has suffered at the date of accrual, but also those which he will suffer in the future from the particular invasion, including what he has suffered during and will predictably suffer after trial. [citations omitted] Thus, if a plaintiff feels the adverse impact of [a] . . . conspiracy on a particular date, a cause of action immediately accrues to him to recover all damages incurred by that date and all provable damages that will flow in the future from the acts of the conspirators on that date. To recover those damages, he must sue within the requisite number of years from the accrual of the cause of action." Id. at 338-39. Only those future damages caused by an action prior to the start of the limitations period that would have been too speculative or unpredictable if sued upon promptly may be recovered in an action brought within the limitations period. Id. at 339. *fn5"

 Dr. Johnson's principal Section 1981 claim is that he was the victim of actions by Drs. Berson and Winikoff and Mr. Dawson which resulted in the revocation of his. vascular/thoracic surgical privileges in 1987 and that those same actions influenced the 1994 refusal to reinstate those privileges. The moment those privileges were revoked, however, Dr. Johnson knew that his income stream from the performance of such surgery at Nyack Hospital had been terminated. There is no suggestion that recovery of damages to compensate for the loss of that income would have been precluded as too speculative. Assuming he had sued promptly and prevailed, he would have been entitled to compensation for any income he lost by virtue of the revocation. *fn6"

 The economic loss for which Dr. Johnson now seeks compensation is the loss of any income he would have earned had his privileges been reinstated in 1994. This of course is entirely included in the income stream Dr. Johnson could have recovered following the 1987 revocation of his privileges. These defendants, however, are not alleged to have taken any action after 1987 which brought about the 1994 decision except insofar as their alleged involvement in the 1987 privileges revocation may have affected it. As Dr. Johnson could have recovered for that injury years ago, the dismissal of Count III, the Section 1981 claim, insofar as it was based ...


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