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FRANZON v. MASSENA MEM. HOSP.

August 8, 1997

OLOF FRANZON, M.D. and WOMEN'S MEDICAL & SURGICAL CARE, P.C., Plaintiffs, against MASSENA MEMORIAL HOSPITAL, BOARD OF MANAGERS OF MASSENA MEMORIAL HOSPITAL, MEDICAL EXECUTIVE COMMITTEE OF MASSENA MEMORIAL HOSPITAL, JAYANT J. JHAVERI, M.D., JAMES B. WATSON, BEDROS BAKIRTZIAN, M.D., CHRISTINE ROWE-BUTTON, M.D., SATEESH K. GOSWAMI, M.D., STEVEN SCHWAM, M.D., MELCHIORE L. BUSCEMI, M.D., EDWARD BURKE, M.D., KENNETH MAXIK, TAE-SIK CHOI, M.D., MICHAEL MARESCA, M.D., LOIS NICANDRI, TINA CORCORAN, KEITH BAIN and MARILYN CARR, Defendants.


The opinion of the court was delivered by: MCAVOY

 This case arises from a civil rights action alleging retaliatory harassment. Plaintiffs, Olof Franzon, M.D. and his professional corporation, Women's Medical & Surgical Health Care, P.C., bring this Complaint pursuant to 42 U.S.C. section 1983, alleging violations of his constitutional rights. Named as defendants in this action are Massena Memorial Hospital ("MMH"), the Board of Managers of Massena Memorial Hospital (the "Board of Managers"), the Medical Executive Committee of Massena Memorial Hospital (the "MEC"), et al.. Plaintiffs allege: (1) First Amendment Free Speech Violation; (2) Fourteenth Amendment Equal Protection Violation; (3) Punitive Damages (4) Attorneys' Fees (5) Defamation; (6) Tortious Interference with Business Relations and; (7) Tortious Interference with Contract.

 Currently pending before this Court is defendants' motion to dismiss. Alternatively, defendant's move for summary judgment.

 I. BACKGROUND

 Plaintiff Franzon is a board certified obstetrician/gynecologist licensed to practice medicine in the State of New York. (Complaint P26). Plaintiff was first granted privileges to practice medicine at MMH in January, 1993. (Complaint P27). According to the laws of MMH, a physician such as Dr. Franzon can be credentialed for a period of no more than two years. Thereafter, a physician must obtain reappointment to the hospital medical staff.

 In or about September, 1995, Franzon began to openly and publicly advocate for the addition of nurse-midwifery to the services offered by MMH. Defendants were openly hostile to nurse-midwifery and opposed its practice at MMH. (Complaint P28). Franzon also made statements at public meetings of the Board of Managers and in the MMH community at large that he believed that MMH refused to grant hospital privileges to nurse-midwifes for anti-competitive reasons. (Complaint P37). While MMH eventually granted ostensible privileges to a nurse-midwife, Franzon states that the privileges were intentionally made so limited as to make the practice of nurse-midwifery effectively impossible or certainly economically unfeasible. (Complaint P39). Franzon publicly criticized this unduly restrictive policy. (Complaint P40). Franzon also made statements at public meetings of the Board of Managers and in the Massena community at large regarding other issues concerning the quality of medical care at MMH. (Complaint P41). Among other issues, Franzon publicly questioned MMH's abnormally high C-Section rate, as well as the past and current billing practices engaged in by defendant, Steven Schwam, M.D., and Certified Registered Nurse Anesthetists employed by MMH. (Complaint P42). In fact, the New York State Department of Health and the Office of the Attorney General's Medicaid Fraud Control Unit have recently initiated investigations into Schwam's and MMH's billing practices. (Complaint P43).

 Franzon alleges that shortly after he first suggested that nurse-midwives should be allowed to practice and deliver babies at MMH, defendants entered into a conspiracy, and have engaged in a campaign of overt and malicious acts in furtherance of that conspiracy, to silence Franzon and excommunicate him from the Massena medical community and community at large (the "Conspiracy"). (Complaint P29). Franzon alleges that defendants made numerous false, malicious and defamatory statements about his competence as a doctor to his patients, prospective patients, and the community at large. Franzon alleges that defendants knew that they were obligated to provide his patients with insurance referrals, and that defendants' refusal to issue the necessary referrals forced such patients to choose between seeing Franzon for treatment and having their respective insurance carriers pay for the subject treatment. (Complaint PP30-31, 110). Furthermore, Franzon alleges that in an attempt to destroy his reputation and career, defendants have justified their actions by maliciously filing false or de minimis complaints in his credentials files.

 Franzon alleges that in furtherance of the conspiracy, defendants created a double standard, in violation of the equal protection clause of the United States Constitution, whereby minuscule or non-existent violations of hospital regulations, by-laws or protocols were used to harass, penalize and damage him while more substantial violations by other doctors were ignored.

 Franzon alleges that in furtherance of this Conspiracy, on September 10, 1996, the MEC refused to recommend renewal of his medical privileges. In accordance with the by-laws of MMH, Franzon requested a Fair Hearing review of the adverse recommendations of the Medical Executive Committee. At the time Franzon filed suit, his privileges had not been revoked--there was merely a non-binding recommendation that such privileges not be renewed. (Complaint P33). However, Franzon's claims do not stem from a wrongful revocation of privileges, rather, they are predicated on defendants' campaign of retaliatory harassment. (Complaint PP44-45).

 Franzon alleges that as a result of these constitutional violations, he has been injured in his ability to practice medicine, has suffered a loss of reputation among his peers and in the community, and has experienced extreme emotional distress. Franzon asserts that because each injury is entirely separate and distinct from the maintenance of his privileges, these injuries exist even though he continues to maintain his privileges at MMH.

 II. DISCUSSION

 Defendants seek dismissal of all claims contained in the Complaint for Franzon's failure to exhaust his administrative remedies. Defendants also seek dismissal on the grounds that plaintiffs' Complaint is premature because Franzon still retains his medical privileges. In the present case, no diversity jurisdiction has been alleged. Thus, defendants contend that in the event the Court dismisses the federal claims contained therein, supplemental jurisdiction over the state claims should be denied and the state claims dismissed. Alternatively, defendants seek dismissal of the Complaint in its entirety pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 In addition, defendants also move for a more definite statement pursuant to Rule 12(e) on the grounds that the complaint is ambiguous as to the role that each defendant allegedly played in the conspiracy alleged in the Complaint.

 A. Standard of Review

 Federal Rule of Civil Procedure 12(b)(6) provides that a cause of action shall be dismissed if the complaint fails "to state a claim upon which relief can be granted." In order to survive a Rule 12(b)(6) motion to dismiss, plaintiff must assert a cognizable claim and allege facts that, if true, would support the claim. Dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6) is not appropriate "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); see, e.g., Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991). In evaluating these requirements, the Supreme Court has accorded civil rights pleadings liberal construction. Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972).

 Nevertheless, a plaintiff must still allege specific facts indicating a claim upon which relief can be granted. See Birnbaum v. Trussell, 347 F.2d 86 (2d Cir. 1965); Burt v. City of New York, 156 F.2d 791 (2d Cir. 1946). While the court will not accept mere conclusions of law, the court should accept the pleader's description of what happened along with any conclusions that can be reasonably drawn therefrom. See Frasier v. General Electric Co., 930 F.2d 1004, 1007 (2d Cir. 1991); Murray v. City of Milford, 380 F.2d 468 (2d Cir. 1967). Furthermore, when ruling on a Rule 12(b)(6) motion to ...


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