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SHADY v. TYSON

April 27, 1998

MAGDY S. SHADY, M.D., Plaintiff,
v.
GEORGE W. TYSON, M.D., individually and in his official capacity as Chair of the Department of Neurological Surgery of University Hospital, University Medical Center and the School of Medicine at SUNY at Stony Brook; NORMAN H. EDELMAN, M.D., individually and in his official capacity as Dean of the School of Medicine and Vice President of University Medical Center and the Health Sciences Center of SUNY at Stony Brook; SHIRLEY STRUM KENNY, Ph.D., individually and in her official capacity as President of SUNY at Stony Brook; STATE UNIVERSITY OF NEW YORK AT STONY BROOK; UNIVERSITY HOSPITAL of the Health Sciences Center of SUNY at Stony Brook; UNIVERSITY MEDICAL CENTER OF SUNY at Stony Brook; THE HEALTH SCIENCES CENTER of SUNY at Stony Brook; THE SCHOOL OF MEDICINE of SUNY at Stony Brook; NEW YORK SPINE & BRAIN SURGERY, PC, Defendants.



The opinion of the court was delivered by: SPATT

BENCH MEMORANDUM

 SPATT, District Judge :

 This lawsuit arises out of the claims of the plaintiff, Magdy S. Shady ("Shady" or the "plaintiff') against the defendants, George W. Tyson, M.D. ("Tyson"), Norman H. Edelman, M.D. ("Edelman"), Shirley Strum Kenny, Ph.D. ("Kenny"), State University of New York at Stony Brook ("SUNY"), University Hospital of The Health Sciences Center of SUNY at Stony Brook ("University Hospital"), University Medical Center of SUNY at Stony Brook ("University Medical Center"), Health Sciences Center of SUNY at Stony Brook ("Health Sciences Center"), School of Medicine of SUNY at Stony Brook ("School of Medicine") and the New York Spine & Brain Surgery, PC ("Spine & Brain").

 The plaintiff is a neurosurgeon and an Assistant Professor of Neurological Surgery at SUNY. The gravamen of his complaint is that as a consequence of his "voicing concerns relating to the care and treatment of patients at University Hospital, he is on the verge of losing his faculty appointment at SUNY Stony Brook as well as his hospital privileges." (Plaintiff's Memorandum of Law, at 2). The plaintiff filed this motion for a preliminary injunction by order to show cause pursuant to Fed. R. Civ. P. 65 seeking an order "enjoining and restraining defendants and each of them from taking any action adversely to affect plaintiff's faculty appointment or employment at the School for Medicine . . . and/or plaintiff's medical staff appointment or clinical privileges at University Hospital, University Medical Center and/or Health Sciences Center . . . and/or any of the terms and conditions of [his] employment or appointments or privileges based upon the events complained of in this action, including . . . any action to implement the letter of non-renewal of plaintiff's appointment as Assistant Professor . . . and/or to revoke or diminish plaintiff's medical staff appointment and clinical privileges at University Hospital, pending the final determination of this action."

 I. BACKGROUND

 In October 1991, the plaintiff, a neurosurgeon, was appointed to the non-tenured position of Assistant Professor of Neurological Surgery, and was made a member of the medical staff of University Hospital with full clinical privileges (Shady Aff., at P 2). Since that time, he also has been a member of Spine & Brain, which is the faculty private practice of the Department of Neurological Surgery at University Hospital and University Medical Center at SUNY. Shady's original appointment letter stated that the appointment was "temporary" and would expire one year later (Letter from J. Oaks to Shady, dated October 2, 1991: Ex. A to Tyson Aff., P 6). Since that time, Shady's temporary, non-tenured appointment has been renewed either annually or biannually, with each renewal letter specifying an end date for the appointment, subject to renewal (Tyson Aff., P 6). Under the policies in place at SUNY Stony Brook, any faculty member who has held an appointment for over two years is entitled to one year notice of the nonrenewal (Tyson Aff., P 6). According to Dr. Tyson, Chair of the Department of Neurological Surgery, Shady was an "at-will" employee who never had tenure or any other type of continuing appointment, and under the written policies of SUNY Stony Brook, non-renewal of his appointment does not require a showing of any cause, so long as the nonrenewal is "not tainted by an improper purpose." (Tyson Aff., P6).

 In or about 1995, the plaintiff was invited to join the Surgical Review Committee ("SRC") at University Hospital. The SRC is a peer review committee responsible for "reviewing all surgery performed in the Hospital . . and evaluating the acceptability of the procedures taken." (Shady Aff., P 5).

 In July 1996, Dr. Tyson met with Shady to discuss his written evaluation of Shady's performance and status within the Department. Tyson aptly characterizes the evaluation as "mixed." He told Shady that while he possessed "above average technical skills," he nevertheless would "sometimes try to duck work," and "ended up 'getting out' of many emergencies that. I assigned to him by passing them on to someone else or claiming [that he was unavailable.]" (Tyson Aff., P 11). Tyson further informed Shady that the number of surgeries he performed was "well below the national average and . . . that he needed a strategy to build his practice. In sum, I advised Dr. Shady that while he performed a number of functions well, the things he did not do well created a significant problem for the Department . . . ." (Tyson Aff., P 11). According to Tyson, since "Shady came to Stony Brook in 1991, the expenses related to his clinical practice have exceeded the payments he brought into the Corporation in five of the seven fiscal years, including in each of the three most recent years." (Tyson Aff., P 16). While Dr. Shady disputes the accuracy of Tyson's assessment of his productivity levels, he does not contest that he received the mixed evaluation in July 1996 which called into question his contributions to the Department (Shady Reply Aff., PP 21-27).

 Approximately three months after this "mixed review," in or about the Fall of 1996, Shady told the Chair of the SRC that he was concerned about two surgeries performed by a fellow SUNY doctor in the Department. Shady's statements evidently prompted the SRC to investigate the other physician's surgeries. Thereafter, the plaintiff claims that he was informed by Tyson that he was being removed from the SRC because of his voicing these concerns about a fellow neurosurgeon.

 Several months later, Tyson states that despite growing financial difficulties associated with Shady's lack of productivity, he nevertheless recommended to the Dean that Shady's appointment be renewed for an additional one-year term. Based on that recommendation, the Dean renewed Shady's appointment, by letter dated December 26, 1996, until October 14, 1997. Notably, Shady's appointment was renewed after the events surrounding the SRC.

 Tyson alleges that by March 1997, "the continued and dramatic decline in Dr. Shady's billings, as well as further adverse changes in the financial position of the Department as a whole, convinced me that our practice could no longer support his salary and other substantial expenses. . . . I also was influenced by the fact that Dr. Shady, unlike the other members of the Department, had no defined sub-specialty within the field of neurosurgery. Dr. Shady, while a technically competent surgeon, possessed no skill that was unique within our practice and was attracting relatively few patients. . . . It was for this reason, and this reason alone, that I recommended to the Dean in March 1997 that Dr. Shady be provided with the twelve month notice of nonrenewal of his appointment provided for under the Stony Brook policy." The plaintiff then received a letter from Tyson dated March 21, 1997, stating that the plaintiff's faculty appointment "will not be renewed when it expires, except for the purposes of providing . . . 12 months of advance notification of this fact." When the plaintiff wrote a letter of complaint to Dr. Edelman, Dean of the School of Medicine, in March 1997, he received a reply stating that his faculty appointment had been extended through April 15, 1998, at which time it would not be renewed (Shady Aff., at P 35).

 The plaintiff alleges that his faculty appointment was not renewed in retaliation for his having raised the "quality assurance questions" before the SRC. On November 18, 1997, the plaintiff filed a complaint in this Court based on a Section 1983 cause of action, claiming that he was terminated for exercising his First Amendment right to free speech, and that he was deprived of his property interests in his position without due process.

 On March 26, 1998, more than a year alter he was notified that his appointment would not be renewed, the plaintiff moves, by order to show cause, for a preliminary injunction, seeking the relief set forth at the outset of this decision. In support of his motion, the plaintiff asserts that he is "entitled to injunctive relief from this Court to address not only his and his patients' imminent loss, but in addition to redress the chilling effect [on First Amendment rights] such uncorrected retaliation will have [on him and] other physicians at ...


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