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September 27, 2000


The opinion of the court was delivered by: Wexler, District Judge.


Plaintiff Roger Todd Adler, M.D. ("Plaintiff") commenced this civil rights case alleging that his termination from employment as a resident at Nassau County Medical Center violated state law as well as his constitutionally protected rights to procedural and substantive due process. Presently before the court are the parties' cross-motions for summary judgment. After outlining the relevant facts the court will turn to the merits of the motions.


I. Factual Background

In light of the fact that this case is presented, at this juncture, as cross-motions for summary judgment, the court will outline here those facts relevant to the motions that are not in dispute. Where the parties disagree as to the particular characterization of facts, the court will so note.

A. Plaintiff's Employment at NCMC and the Contract of Employment

Plaintiff graduated from the University of Chicago Medical School and was thereafter offered a residency with the Department of Surgery at the Nassau County Medical Center ("NCMC"). The position was offered Plaintiff by way of a letter dated March 16, 1995. The next day, Plaintiff was sent a contract of employment by NCMC (the "Contract"), which was signed by Plaintiff and a representative of NCMC in April of 1995. The Contract was a one year contract beginning on July 1, 1995 and terminating on June 30, 1996. As part of the contract, Plaintiff was required to undergo a physical examination along with such "periodic examinations and supplemental tests as are medically indicated in the opinion of the NCMC medical staff to determine whether [Plaintiff] is physically, mentally and emotionally able to perform [his] duties." The Contract gave NCMC the right to terminate its relationship with Plaintiff prior to its expiration date if any terms or conditions were violated.

The Contract provided that Plaintiff would be afforded "due process in accordance with the NCMC Policy Manual for Graduate Medical Education, Section 5.1.6" (the "Manual"). That section sets forth, inter alia, detailed procedures to be followed when resident is terminated prior to the end of an academic year.

Specifically, pursuant to the "Due Process Procedure" stated in section of the Manual, a dismissed resident is entitled to be informed, by mail, of the reasons for the dismissal and given the right to request a hearing on the charges before an ad hoc committee. Within twenty days of NCMC's receipt of a request for a hearing, the ad hoc committee is to be appointed and the dismissed resident is to be informed of the date of the hearing. At the hearing, which is to be "informal," the parties are permitted to present all information regarding the dismissal that the committee deems necessary. There is no right to legal representation unless the committee grants that right. If the right to representation is granted, it is granted to both parties. Within fifteen days of the conclusion of the hearing the ad hoc committee is to recommend affirmance or rejection of the resident's dismissal.

The Education Committee of NCMC is charged with reviewing the decision of the ad hoc committee. The decision of the Education Committee is thereafter reviewed by the NCMC Executive Director. The Manual makes the decision of the Executive Director the final decision of NCMC.

B. Plaintiff's Dismissal From NCMC

In June of 1995, Plaintiff underwent a physical examination and drug screening. That screening revealed the presence of the drug Valium in Plaintiff's bloodstream. The parties' characterization of Plaintiff's use of Valium and his explanation of that use vary widely.

Plaintiff claims that he informed NCMC doctors that the Valium was properly prescribed by a physician and was being self-administered in connection with a program of physical therapy following Plaintiff's shoulder surgery. Defendants characterize Plaintiff's explanations for the detection of Valium as vague and suspicious. For the purpose of this motion, however, it is necessary only to note that Valium was detected. It is also necessary to note that despite this finding, Plaintiff began serving as a resident in the NCMC surgery program on July 1, 1995 and continued in that position, even after the results of the drug screen became known.

In a letter dated July 14, 1995, James T. Evans, the director of the Surgery Program at NCMC, informed Plaintiff that he had "failed to achieve the status" of an employee at NCMC. Dr. Evans based this finding on the results of the July drug screen combined with what was believed to be Plaintiff's failure to provide adequate documentation for his use of Valium. Plaintiff was informed that he was not an employee of NCMC and would not be "in the immediate future." He was ordered to surrender his identification badge and to vacate his housing as soon as possible.

On the day of his dismissal Plaintiff's family appeared at NCMC to discuss the dismissal and to endeavor to change the decision to dismiss Plaintiff. Additional documentation regarding Plaintiff's use of Valium was submitted including letters from Plaintiff's treaters and a letter from Plaintiff explaining his situation and his need for Valium during his post-operative period.

The efforts to reinstate Plaintiff apparently led to additional drug screenings and Plaintiff's agreement to undergo a psychological examination. On August 5, 1995, after Plaintiff submitted to his third drug test, he informed Dr. Westring, NCMC's Director of Academic Affairs, that he had taken a tablet of Fioricet. Although the August drug screen was negative, Plaintiff was dismissed from his position at NCMC, presumably because of his use of Fioricet as well as the results of the prior drug screening.

In a letter addressed to Dr. Westring dated August 10, 1995, Plaintiff requested a hearing with respect to his dismissal from the NCMC surgical program. Plaintiff's letter referred specifically to the due process procedures set forth in the Manual and requested the opportunity to be represented by counsel. NCMC, taking the position that Plaintiff had never achieved the status of an employee, declined to grant Plaintiff a hearing in accordance with the procedure set forth in the Manual.

C. State Court Proceedings Following Plaintiff's Dismissal

On November 12, 1995, Plaintiff commenced a proceeding to review his dismissal pursuant to Article 78 of the New York Civil Practice Laws and Rules (the "Article 78 Proceeding"). While the trial court agreed with NCMC, holding that Plaintiff was not entitled to a hearing, that determination was reversed by the Appellate Division of the New York State Supreme Court (the "Appellate Division"). In an opinion dated January 12, 1998, the Appellate Division reversed the judgment of lower court and held that Plaintiff was, indeed, entitled to a hearing in accord with the procedures set forth in the Manual.

Specifically, the Appellate Division held that Plaintiff became an employee of NCMC upon commencement of his duties as a resident. Thus, the court held, as of that date, Plaintiff was entitled to all the protections granted in the Contract, including the right to a hearing as set forth in the Manual. The court further stated that, "having granted [Plaintiff] the right to a hearing, the NCMC limited its right to discharge [Plaintiff]." The court concluded that the dismissal of Plaintiff in violation of the procedures of NCMC was a violation of its own policies and that a due process hearing must be held.

D. Events Following the State Court Litigation And Plaintiff's Subsequent Career Decisions

For reasons that are unclear to this court, no hearing regarding Plaintiff's dismissal from NCMC was ever held. Plaintiff says that NCMC never "offered" to hold the hearing and Defendants state that Plaintiff "did nothing to compel" the hearing. In any event, it is clear that the hearing to which the State Court determined Plaintiff was entitled has not, to this date, been held. It should be noted, however, that after commencement of this litigation, counsel for NCMC wrote to Plaintiff's counsel requesting whether Plaintiff wished to proceed with the hearing ordered by the Appellate Division. The letter stated further that failure to inform defense counsel of the intention to pursue the hearing will be deemed a waiver of the hearing. Plaintiff's counsel does not appear to have responded to this correspondence.

Following Plaintiff's dismissal from NCMC, he accepted a preliminary (one year) residency at Maimonides Hospital. Maimonides did not renew Plaintiff's residency after completion of the first year and Plaintiff thereafter changed medical specialties and began a series of residencies in the field of ophthalmology.

Plaintiff states that he is now eligible to become licensed to practice medicine in the State of Ohio. He alleges that he has not yet applied for his medical license because of the blemish on his career that is a result of his experience at NCMC. Specifically, Plaintiff states that he is fearful of completing the necessary application, which requires that Plaintiff respond to questions regarding, inter alia, prior suspensions, investigations and negative reports. Plaintiff is loathe to disclose his experiences at NCMC because, even though he denies the allegations ...

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