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Bauman v. Mount Sinai Hospital

September 29, 2006


The opinion of the court was delivered by: Denny Chin, D.J.


Plaintiff Jay Mitchell Bauman, M.D., individually and on behalf of the professional corporation of which he is the sole member, asserts claims against defendant Mount Sinai Hospital (the "Hospital"), members of its staff, and affiliated physicians for violations of the Health Care Quality Improvement Act of 1986 ("HCQIA"), the Racketeer Influenced and Corrupt Organizations Act ("RICO"), and state law. Plaintiffs' claims relate to the suspension and eventual termination of Dr. Bauman's Hospital privileges for his allegedly improper use of labor-inducing medication. Before the Court is a motion to dismiss filed by certain defendants pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). Because I conclude that plaintiffs should have raised their claims in the first instance before the New York State Public Health Council, and that, in any event, their claims are without merit, the motion is granted.


A. The Facts

The facts below are drawn from the Amended Complaint and attached exhibits.*fn1 The Amended Complaint is not a typical pleading. Rather than setting forth a short and plain statement as required by Federal Rule of Civil Procedure 8(a), the Amended Complaint is 150 paragraphs and comes with twenty-three exhibits -- including a 244-page transcript of Dr. Bauman's appeal hearing. These materials are deemed part of the Amended Complaint and are considered on this motion. While the facts set forth in the Amended Complaint and attached materials are construed in the light most favorable to plaintiffs, I need not accept plaintiffs' conclusory allegations as true where they are plainly contradicted by plaintiffs' own exhibits.

1. The Parties

Dr. Bauman is a solo practitioner, board certified in Obstetrics and Gynecology. (AC ¶¶ 3, 14).*fn2 He has spent his entire professional career affiliated with the Hospital, the only hospital with which he has ever had privileges. (AC ¶¶ 5, 9-10, 17). He chose to seek privileges there as a practitioner of Orthodox Judaism, and his patients largely hail from the New York Orthodox Jewish community. (AC ¶¶ 9, 11). Over the years, his practice has grown to include more than 200 pregnant patients each year. (AC ¶¶ 15, 40).

Defendants fall into four categories:

(1) The Hospital is a healthcare facility and training center for medical staff, located in Manhattan, New York. (AC ¶¶ 17, 30). It maintains a busy labor and delivery floor that operates at full capacity during the work week and services some 5,200 patients yearly. (AC ¶¶ 35-36, 38).

(2) Defendants Michael L. Brodman, Burton Drayer, Peter Rubin, Barry Brown, and Cynthia R. Allen are Hospital administrators involved in the implementation of Dr. Bauman's suspension. (AC ¶ 30).

(3) Defendants Frank Calapari, Anna Barbieri, and Rebecca Amaru are physicians affiliated with the Hospital, who have taken over care for Dr. Bauman's patients since his suspension. (AC ¶¶ 24-26, 30).

(4) Defendants John and/or Jane Doe 1-10 are physicians or medical professional corporations from outside the Hospital who received privileges after Dr. Bauman's privileges were suspended. (AC ¶¶ 27, 30).

The motions to dismiss have been filed only on behalf of the Hospital and Administrators Brodman, Drayer, and Brown.

2. Use of Misoprostol at the Hospital

Misoprostol (or Cytotec) is approved by the Federal Drug Administration (the "FDA") for treatment of gastrointestinal ailments, but may also be used "off-label" to induce labor. (AC ¶¶ 47-48). The FDA, however, has explicitly warned against such off-label use due to serious health risks, including uterine rupture and birth defects. (AC ¶¶ 49, 53; PX 2, 5). Despite these health risks, the Hospital nonetheless maintains a written protocol, issued in February 2000, for monitoring a patient induced with Misoprostol. (AC ¶ 60; PX 9; Tr. 28-32). Plaintiffs contend, upon information and belief, that the Hospital, with approval of administrators named as defendants in this suit, has billed Medicaid for services in connection with births induced by off-label use of Misoprostol (AC ¶¶ 61-63), against Medicaid's explicit policy against paying for services that are "experimental in nature" (AC ¶¶ 59, 63; PX 8).

3. Summary Suspension of Dr. Bauman

a. The Suspension

By letter dated February 22, 2005, Dr. Brodman --Chairman of the Hospital's Department of Obstetrics, Gynecology, and Reproductive Services -- informed Dr. Bauman that his privileges at the Hospital were summarily suspended pending an investigation of charges that he had used Misoprostol to induce labor in violation of Hospital protocol. (AC ¶¶ 20, 65-66; PX 10). In the letter, Dr. Brodman referred to two incidents -- on January 10, 2005, and February 3, 2005 -- where "what appeared to be a portion of a misoprostol pill" was found in Dr. Bauman's patients. (AC ¶¶ 70-71; PX 10). The letter explained this practice "demonstrates unacceptable clinical judgment and . . . a breach of professional ethics." (PX 10). Dr. Bauman responded by denying the charges and acknowledging that unauthorized use of Misoprostol was against Hospital protocol. (AC ¶¶ 72-73; PX 11, 12).

Dr. Brodman's February 22 letter did not identify the patients involved, the names of any witnesses to the incidents, or the existence of physical evidence to substantiate the claims, but Dr. Brodman did inform Dr. Bauman of his right to appeal the suspension. (AC ¶¶ 68, 71; PX 10). The summary suspension was confirmed by the Hospital President, Dr. Drayer, in a letter on February 25, 2005. (AC ¶ 80; PX 13).

b. The Appeal and Hearing

Dr. Bauman immediately appealed his suspension pursuant to the internal physician peer review procedures in the By-laws of the Hospital's Medical Staff (the "By-Laws"). He asked the Medical Board President, Dr. Rubin, by letter dated February 22, 2005, for "a meeting . . . to promp[t]ly end this matter by removing any doubts regarding my conduct and medical practice." (AC ¶ 73; PX 12, 20).

The hearing commenced, approximately one week later, on March 1, 2005. The purpose was to determine whether sufficient evidence existed to find that the suspension was "not arbitrary and capricious." (Tr. 10-11). The President may only summarily suspend someone if "[f]ailure to do so may result in an imminent danger to the health of any individual." (Tr. 11; PX 12 art. IX § 2A). Dr. Bauman and the Hospital, represented by Dr. Brodman, were permitted to call and cross-examine witnesses, introduce evidence, and have counsel present to advise them. (AC ¶¶ 86-91; Tr. 10, 15). While counsel for both sides were present, their roles were limited, and the Federal Rules of Evidence did not apply. (Tr. 10).

Dr. Bauman's counsel had been informed, by letter dated February 28, 2005, of the Hospital's intent to call three witnesses: Dr. Brodman, Dr. Drayer, and Dr. Arthur Figur, Medical Director of the Hospital. (AC ¶ 87; PX 15). Those three witnesses testified under oath for the Hospital. Dr. Bauman called seven witnesses to attest to his character and competence and also testified on his own behalf. Set forth below is a summary of their testimony.

i) The Two Misoprostol Incidents

Dr. Brodman testified about the details behind the two Misoprostol incidents on January 10, 2005, and February 3, 2005. He admitted that the Hospital "often" engaged in the off-label use of Misoprostol to induce labor, but that Dr. Bauman's alleged use flouted Hospital protocol. (Tr. 28-32; PX 9). He was informed about the January 10, 2005 incident by a managing nurse who heard the story from the physician's assistant, Stacy Gonzalez, who attended to Dr. Bauman's patient. The patient arrived from Dr. Bauman's office to undergo a test for fetal well-being. The test results were normal, but then the patient began forceful contractions. Gonzalez conducted a pelvic exam and reported removing a Misoprostol tablet from the patient. (Tr. 33-34). Dr. Brodman investigated the incident after consulting with Dr. Figur, who also spoke with the patient to confirm that she had been examined by Dr. Bauman that day. (Tr. 64-65). In addition, Gonzalez told Dr. Figur that she recognized the Misoprostol tablet because she administers the insertion of such tablets for induction. (Tr. 65).

Dr. Brodman learned the details of the February 3, 2005 incident from a third-year resident who examined Dr. Bauman's patient that evening and removed what she believed was a Misoprostol tablet. (Tr. 36-37, 40-41, 47). The patient reported to the resident that she had been examined by ...

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