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Hooda v. Wca Service Corporation

United States District Court, Second Circuit

April 30, 2013

BARKAT S. HOODA, M.D., Plaintiff,

HUGHES ELLZEY, LLP, (WILLIAM CRAFT HUGHES, of Counsel), Houston, Texas, Attorneys for Plaintiff.

FELDMAN KIEFFER, LLP, (STEPHEN A. MANUELE, of Counsel), Buffalo, New York, Attorneys for Defendants.


H. KENNETH SCHROEDER, Jr., Magistrate Judge.

This case was referred to the undersigned by the Hon. Richard J. Arcara, pursuant to 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. # 43. This case was originally brought in the District Court for the Southern District of Texas and was transferred to this Court by order dated June 3, 2011. Dkt. # 38. Currently before the Court is the Defendants' motion (Dkt. # 72) for summary judgment pursuant to Fed.R.Civ.P. 56. Upon consideration of the record as a whole, including the parties' written submissions and oral arguments, and for the reasons that follow, it is recommended that Defendants' motion be granted in part and denied in part.


The following background facts are undisputed.[1] Beginning in October 2009, Plaintiff was employed as a pediatrician by Southern Tier Pediatrics ("STP") with hospital privileges at WCA Hospital ("WCA") in Jamestown, New York. On May 3, 2010, Plaintiff gave notice of his resignation from STP and informed both STP and WCA that he intended to work until June 30, 2010. Dkt. # 72, Exhs. B-D. His letter of resignation was received by WCA and forwarded to the Credentials Committee on May 11, 2010. Dkt. #72, Exh. E.

On June 2, 2010, Plaintiff was the on-call pediatrician at WCA. At 12:50 p.m., Plaintiff was telephoned by Donna Barker R.N. at the direction of obstetrician Dr. Robert Daniels and asked to report to the Labor and Delivery Department to attend the high-risk birth of a premature infant. Dkt. #72, Exh. F. Plaintiff asked Nurse Barker to contact his supervisor, Dr. Tariq Khan, who arrived at 1:08 p.m. Nurse Barker telephoned Plaintiff again, but he did not answer his telephone. Plaintiff arrived at 1:12. The baby was delivered at 1:16 and was "apneic with severe brachycardia." Dkt. # 72, Exh. G. Efforts to resuscitate the infant were unsuccessful and the baby was declared dead at 1:34. Id.

In his progress notes following the delivery and death of the baby, Plaintiff made notations that were characterized by the OB/GYN Care Evaluation Committee as "factually incorrect." Dkt. # 72, Exh. K. Plaintiff wrote that the delivery should not have occurred at WCA, but rather the mother should have been transferred to Women and Children's Hospital of Buffalo ("WCHOB"), as WCA does not have the facilities to care for such high-risk premature babies. Dkt. #72, Exh. I.

On June 7, 2010, the OB/GYN Department at WCA conducted a case review of the infant death. Dkt. #72, Exh. K. WCHOB had been contacted but declined transfer of the mother prior to active labor because the fetus was considered non-viable until 23 weeks gestation. Additionally, an obstetrician expressed concern about Plaintiff's response and his progress note. WCA's Medical Director, Dr. Marlene Garone, was to call Plaintiff and "request a correction of the progress note." Additionally, the Department of Pediatrics was directed to review Plaintiff's on-call response. Dkt. #72, Exh. K.

On Friday, June 11, 2010, Plaintiff sent an e-mail to Dr. Garone and Carol Gallagher, WCA's Credentialing Specialist, stating that he was leaving Jamestown and to "kindly close [his] hospital file effective midnight of Sunday June 13, 2010." Dkt. # 72, Exh. M. In a hand-delivered letter from Dr. Khan, Plaintiff was informed that his "limited notice potentially jeopardizes patient care and raises ethical concerns...." Dkt. #72, Exh. N. On June 11, 2010, STP terminated Plaintiff's employment. It was noted that Plaintiff left no forwarding address. Dkt. #72, Exh. O.

On June 11, 2010, WCA CEO Betsy Wright contacted Plaintiff by telephone while he was at the offices of STP. Dkt. # 72, Exh. JJ, § 5. She informed him that a quality review of the June 2, 2010 incident was in progress and that he was required to meet with Dr. Garone before he left Jamestown. Both Ms. Wright and Dr. Garone understood that Plaintiff had agreed to meet with Dr. Garone on Monday, June 14, 2010. Id., § 6.

Plaintiff did not appear for the meeting with Dr. Garone on June 14, 2010. In an e-mail sent that day, Dr. Garone referenced the meeting for which he failed to appear and advised Plaintiff that she had "several issues regarding this quality review" which needed to be discussed. Dkt. # 72, Exh. P. She asked Plaintiff to contact her as soon as possible and noted that this was "not a request but a requirement following the quality review." Id.

On July 13, 2010, the Pediatric Care Evaluation Committee conducted its review of the June 2, 2010 incident. Dkt. # 72, Exh. R. The committee found that Plaintiff initially refused to attend the birth and was delayed in his response. He then inserted "inflammatory" progress notes in the file and did not respond to requests to correct the medical record. It was determined that Plaintiff's actions failed to meet the standard of care of WCA Hospital, and a letter of reprimand was sent to Plaintiff. Dkt. # 72, Exh. S.

On July 22, 2010, Defendant Wright sent Plaintiff a letter, by certified mail with return receipt requested, informing him that his failure to attend the meeting of June 14, 2010 was "consistent with the New York State definition of professional misconduct" and that the incident would be reported to the New York State Office of Professional Medical Conduct ("OPMC"). Dkt. # 72, Exh. T. The letter was returned as "Refused." Dkt. # 72, Exh. U.

On August 26, 2010, WCA sent an Adverse Action Report to the National Practitioner Data Bank ("NPDB"). Dkt. # 72, Exh. V. The reason for the report was plaintiff's "refus[al] to attend a delivery for a critically ill infant when he was the responsible physician on call." Additionally, Plaintiff had "resigned his medical staff privileges and left the area while under investigation for his failure to respond as required." Id. WCA sent a copy of the Adverse Action Report to the New York State Office of Professions. Dkt. # 72, Exh. W.

Plaintiff commenced this diversity action against his former employer WCA and its CEO Betsy Wright[2] on December 16, 2010. Plaintiff, now a resident of Texas, alleged that after he resigned and left WCA, the defendants

launched a bogus investigation and filed a false report with the U.S. Department of Health and Human Services National Practitioner Data Bank ("NPDB") about Dr. Hooda after Dr. Hooda expressed concerns with hospital management about WCA not having the proper facilities and staff to deliver and care for high-risk and premature infants.

Dkt. # 1, § 11. As a result of this negative report, Plaintiff alleged that he is unable to obtain a permanent Texas medical license, will ultimately be discharged from his position at the University of Texas Medical Branch School of Medicine ("UTMB"), and will be unable to secure employment as a physician anywhere in the United States. Id., §§ 109, 110, 112. Plaintiff also alleged that he suffered emotional distress, humiliation, diminished reputation, and loss of prospective business opportunities. He seeks injunctive relief and money damages based on causes of action for defamation, tortious interference with prospective business relations, conspiracy to damage his professional reputation, and negligent failure to conduct a proper investigation of the events forming the basis for the adverse report.

On January 21, 2011, Plaintiff was interviewed by an investigator with the New York State Department of Health OPMC. Dkt # 72, Exh. Z. Plaintiff admitted that on June 2, 2010, he was the pediatrician on-call, but that he asked Nurse Barker to notify Dr. Khan to attend the birth. He also admitted that Dr. Khan instructed him to attend the birth, and that he stopped at the Administrative Office at WCA before proceeding to Labor and Delivery. Plaintiff admitted that he received a telephone call from Defendant Wright on June 11, 2010 informing him that the Defendants wished to discuss the June 2, 2010 delivery, but he denied that he agreed to meet with Dr. Garone on June 14, 2010. Id.

Following the investigation, on February 25, 2011, the OPMC closed the file with no further action anticipated. Dkt. # 72, Exh. AA. It was noted that the evidence supported the Defendants' position that Plaintiff had no intention of presenting for the delivery on June 2, 2010 and that ...

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