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Ding v. Bendo

March 23, 2006

ZHONG KUN DING, M.D., PLAINTIFF,
v.
AUDREA BENDO, M.D., DIRECTOR, RESIDENCY PROGRAM, VICE-CHAIR FOR EDUCATION, JAMES COTRELL, M.D., CHAIR, ANESTHESIOLOGY DEPARTMENT, SENIOR ASSOCIATE DEAN FOR CLINICAL PRACTICE, COLLEGE OF MEDICINE, JOSEPH GIFFIN, M.D., EXECUTIVE VICE-CHAIR OF ANESTHESIOLOGY DEPARTMENT, DAVID WLODY, M.D., VICE-CHAIR, ANESTHESIA DEPARTMENT, CO-CHAIR, CLINICAL COMPETENCE COMMITTEE, [IN THEIR INDIVIDUAL CAPACITIES AND IN THEIR OFFICIAL CAPACITIES], SUNY DOWNSTATE MEDICAL CENTER, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

Dr. Zhong Kun Ding, an American citizen of Chinese national origin, filed this action after he was terminated from the anesthesiology residency program at the State University of New York ("SUNY") Downstate Medical Center ("Downstate"). In his third amended complaint, Dr. Ding alleges his discharge and other adverse treatment was motivated by the defendants' animus against persons of Chinese origin in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment and seeks damages pursuant to 42 U.S.C. §§ 1981, 1983, 1985, and 2000e, et seq. (Title VII). Dr. Ding also asserts claims under New York law for prima facie tort, intentional infliction of emotional distress, breach of contract, tortious interference with contract, and tortious interference with prospective business relationships.

The defendants have moved for summary judgment on all of these claims. I heard oral argument on the motion on March 17, 2006. For the reasons set forth below, the defendants' motion for summary judgment is granted with respect to all but two of Dr. Ding's claims. The remaining claims, which arise under state law, are dismissed without prejudice, as I decline to exercise supplemental jurisdiction over them pursuant to 28 U.S.C. § 1367(c).

BACKGROUND

After earning his medical degree in China, Dr. Ding came to the United States for his residency training in anesthesiology. In order to obtain certification from the American Board of Anesthesiologists ("ABA"), a medical graduate must complete a four-year program consisting of a "clinical base year," or intern year, and three years of clinical anesthesiology training, referred to as CA-1 through CA-3. Dr. Ding completed his intern year at West Virginia University and his CA-1 year at New York University ("NYU"). The clinical competence committee ("CCC") at NYU noted that Dr. Ding had "received a satisfactory evaluation for the CA1 year ... although the members felt that he had some difficulty integrating clinical skills and knowledge in the care of patients." Def. Ex. 16.

Although it is not entirely clear from the record why he left NYU, Dr. Ding applied for a position in the SUNY Downstate Medical Center clinical anesthesia residency program in the Spring of 1999, hoping to finish the remaining two years of his residency there. Dr. Ding interviewed with several faculty members, including two defendants in this action, Drs. Audrea Bendo and David Wlody, and thereafter the resident selection committee unanimously recommended that he be offered a position at the CA-2 level. The Chair of the Department, defendant Dr. James Cotrell, agreed and offered Dr. Ding a job by a "Letter of Intent," noting that the offer was "with the condition that you understand that by the completion of your CA-2 year you will function at the level with your peers. " Def. Ex. 17. Dr. Ding accepted.

The residents at Downstate receive frequent evaluations of their performance from the attending physicians, and during the 1999-2000 academic year, Dr. Ding received many evaluations that were satisfactory. He received several unsatisfactory evaluations, however, along with a complaint filed by a patient. At the end of his first six months at Downstate, the CCC rated his overall clinical competence as unsatisfactory, explaining that Dr. Ding's "anesthetic management skills [were] not appropriate for his level of training" and that he was "unable to function independently." Def. Ex. 23. Dr. Ding was then temporarily removed from handling CA-2 level patient care cases. After a set of more unsatisfactory reviews, Dr. Ding again received an overall clinical competence rating of unsatisfactory for his second six-month period at Downstate. Def. Ex. 33. As a result, and pursuant to ABA regulations, the CCC recommended that Dr. Ding not be matriculated to the CA-3 level, and Dr. Cotrell agreed. See Def. Ex. 12, ABA Booklet of Information § 2.02(c). Further, in a meeting with Dr. Ding on May 11, 2000, Dr. Bendo informed Dr. Ding that although "residents are [normally] given a three year letter of intent, stating the full length of the residency program .... [Dr. Ding] was only given a one-year contract and Letter of Intent because of problems he had at NYU." Bendo Aff. ¶ 21. Dr. Ding was accordingly advised that his contract would not be renewed for the 2000-01 academic year.

Dr. Ding appealed this decision, along with the decisions to give him unsatisfactory evaluations for his first two six-month periods at Downstate, to the Graduate to Medical Education Committee ("GMEC"), which recommended by letter of July 25, 2000 that the "anesthesiology residency program's decision to terminate you as a resident be rescinded .... because the ... program's 'letter of intent' ... did not make it sufficiently clear that [Dr. Ding's] appointment was a 'conditional one year agreement.'" Def. Ex. 43. Accordingly, the GMEC recommended that Dr Ding "be reappointed as a resident for 2000-2001 and that if the program intends to make the appointment conditional or probationary that this be clearly stated in writing in your resident contract." Def. Ex. 43. By a second letter of August 17, 2000, after review of Dr. Ding's full academic file and the supporting documentation he submitted, the GMEC advised Dr. Ding it "found [that] the Program's decision to not grant [him] [ABA] credit [was] fully supported and documented in the record of [his] evaluations by the faculty." Def. Ex. 45.

Notably, throughout this appeals process, Dr. Ding did not claim that any of his unsatisfactory evaluations were motivated by an animus against persons of Chinese national origin.

In accordance with the GMEC's recommendations, by letter of August 21, 2000, the residency program reinstated Dr. Ding, again at the CA-2 level, this time making clear that his appointment was for a provisional term of one year, with renewal conditioned upon his satisfactory progress. Def. Ex. 47. Dr. Ding again accepted.

Soon thereafter, however, Dr. Ding received several unsatisfactory evaluations, and he failed his cardiac sub-specialty rotation twice. Of the 27 residents who participated in the cardiac rotation, only three failed on their first try; none but Dr. Ding failed on the second. Two of the residents who passed on their first try were of Chinese national origin.

On March 21, 2001, Dr. Ding performed an intubation that drew sharp criticism from the attending physicians, who felt that Dr. Ding's "anesthetic management of this patient was grossly inadequate." Def. Ex. 58. Further, the CCC found Dr. Ding had failed to call for assistance when he needed it, to communicate what had occurred to his attending physician, and to document adequately the basis for his medical judgment in performing the intubation. As a result of this incident, Dr. Ding was issued a letter of reprimand from the CCC on July 10, 2001. Def. Ex. 60. Although Dr. Ding appealed the reprimand, the GMEC concluded by letter of August 28, 2001 that the warning "was appropriate and justified." Def. Ex. 64. At the end of the six-month period from January to June, 2001, the CCC for a third consecutive time rated Dr. Ding's overall clinical competence as "unsatisfactory." Def. Ex. 61. Dr. Ding took sick leave from the program from September 4, 2001 to October 22, 2001.

Dr. Ding has steadfastly maintained, including in this action, that he performed the March 16, 2001 intubation properly, even according to the medical textbooks authored by the defendant attending physicians and members of the CCC. Specifically, on October 6, 2001, while he was out on leave, Dr. Ding sent an e-mail message to numerous people within the hospital, including faculty, residents, certified registered anesthetists, and student nurse anesthetists, explaining "what happened to [him]" and seeking their "judgment based on ... fairness, equality, justice and professionalism." Def. Ex. 69. The explanation contained a detailed ...


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