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Bhanusali v. Orange Regional Medical Center

United States District Court, Second Circuit

August 12, 2013


Bryan McCaffrey, Seth Marcus, Leffler Marcus & McCaffrey LLC, New York, New York, Counsel for Plaintiffs.

Douglas P. Catalano, Neil G. Sparber, Fulbright & Jaworski L.L.P., New York, New York Counsel for ORMC Defendants.[1]

Michelle E. Phillips, Michael L. Abitabilo, Jackson Lewis LLP, White Plains, New York, Counsel for CRHC Defendants.[2]


CATHY SEIBEL, District Judge.

Before the Court are two Motions to Dismiss Plaintiffs' Third Amended Complaint ("TAC"), (Doc. 58): the ORMC Defendants' Motion to Dismiss, (Doc. 65), and the CRHC Defendants' Motion to Dismiss, (Doc. 68). For the reasons set forth below, both Motions are GRANTED.


I previously addressed and granted the ORMC Defendants' Motion to Dismiss Plaintiffs' First Amended Complaint ("FAC"), (Doc. 25), in a Decision and Order dated January 20, 2012. (Doc. 46.) Familiarity with that Decision, which sets forth a substantial portion of the factual background of this case, is presumed. I will describe here in detail only those new allegations relevant to the instant Motions. On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), I accept as true the facts, but not the conclusions, as set forth in the TAC, the operative pleading.

A. Discrimination Allegations

Plaintiffs' discrimination allegations center on an alleged "Sham Peer Review, " (TAC ¶ 74), at ORMC to which Dr. Bhanusali was subject and which led to a precautionary suspension of and restrictions on his ORMC privileges, thereby "render[ing] it economically and professionally impossible to perform his duties as an orthopedic surgeon." ( Id. ¶ 118; see id. ¶¶ 79-117.) Plaintiffs allege that the Sham Peer Review represented intentional discrimination against Dr. Bhanusali on the basis of his race (Indian), national origin (India), and age (62 years old), in violation of 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., as well as the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296. Plaintiffs also allege that the Defendants conspired to violate Dr. Bhanusali's civil rights by perpetrating the Sham Peer Review in violation of 42 U.S.C. § 1985.

I previously dismissed all of Plaintiffs' discrimination claims against the ORMC Defendants because I found that Plaintiffs failed to allege facts sufficient to render plausible the inference that the ORMC Defendants intentionally discriminated against Plaintiff.[3] ( See Doc. 46, at 14-15.) I gave Plaintiffs leave to amend their discrimination claims, with the following guidance:

[A]ny [amended complaint] would have to include specifics (not simply information and belief, or conclusory allegations) regarding others similarly situated who were more favorably treated, sufficient to show both that the others' conduct was similar to [Dr. Bhanusali's] and that they were subjected to less exacting scrutiny, which would render plausible an inference of discrimination.

( Id. at 22.)[4]

As they did in the FAC, ( see FAC ¶¶ 75-120), Plaintiffs in the TAC describe in some detail the series of committee meetings and case reviews that led to the restrictions on Dr. Bhanusali's privileges of which Plaintiffs now complain, ( see TAC ¶¶ 79-124). First was a May 6, 2009 meeting of the Physicians Excellence Committee ("PEC"), attended by a number of the Defendant-doctors, concerning "a patient from months earlier who had had a total knee replacement surgery."[5] ( Id. ¶ 87, 89, 95.) The PEC meeting led to the requirement that Dr. Bhanusali "be assisted on a list of specified surgeries thereby limit[ing] his surgical privileges." ( Id. ¶ 92.) On May 28, 2009, following a meeting with some of the Defendant-doctors, Dr. Bhanusali was further informed that, prior to booking one of these list-specified surgeries, he would have to present the cases to the Chair or Vice Chair of Orthopedics, who would have the right to proctor the surgery. ( Id. ¶ 97.) On October 6, 2009, the day after another meeting, [6] Dr. Bhanusali received a letter informing him that his clinical privileges were immediately and precautionarily suspended. ( Id. ¶ 99; see id. ¶ 100.)

On the same day, there was a meeting of the Medical Executive Committee ("MEC") confirming Dr. Bhanusali's precautionary suspension and establishing an Ad Hoc Committee to review six of his surgeries from as early as March 25, 2008 to as late as September 29, 2009. ( Id. ¶¶ 100, 102, 104.) According to Plaintiffs, "[t]wo of these cases involved broken drill bits, " which "are not an unusual occurrence in orthopedic surgery, " and "[i]n neither case did the patient suffer any adverse consequences." ( Id. ¶ 106.) The September 29, 2009 case - Plaintiffs do not say whether this was one of the two surgeries that involved broken drill bits - "involved an indigent patient who had been refused treatment by another ORMC staff surgeon because he lacked insurance." ( Id. ¶ 107.) As to the rest, Plaintiffs only allege that "[i]n none of the cases reviewed was there evidence of a patient having an unsatisfactory outcome, " and "[i]n none of the cases reviewed had there been any patient complaint regarding Dr. Bhanusali's care." ( Id. ¶¶ 108-09; see id. ¶ 125 ("In none of the six cases that formed the basis of Dr. Bhanusali's peer review was there a report of a patient suffering a negative outcome, suing the hospital or otherwise complaining about the care they received by Dr. Bhanusali to ORMC.").)[7] Plaintiffs otherwise allege no facts regarding the six cases that were the subject of the review. Although the Ad Hoc Committee recommended that the precautionary suspension be lifted (with certain limitations on Dr. Bhanusali's privileges remaining), the MEC recommended revocation of all privileges as well as membership on the medical staff. ( Id. ¶¶ 110-11.)

Following an appeal of the MEC's decision pursuant to ORMC bylaws, a second Ad Hoc Committee was formed. ( Id. ¶ 113.) After several hearings and testimony, this committee recommended against full revocation of privileges and in favor of continued privileges subject to severe restrictions. ( Id. ¶¶ 115-16.) Apparently, the MEC adopted in full the recommendations of the second Ad Hoc Committee, and these recommendations were then adopted by the Executive Committee of ORMC on behalf of the Board of Directors. ( See id. ¶ 117.)

The TAC includes numerous allegations regarding ostensibly similarly-situated comparators - that is, younger or white physicians alleged to have committed as or more serious medical transgressions that went without investigation and/or did not lead to any adverse action - in an attempt to render plausible the inference that the temporary suspension of and restrictions on Dr. Bhanusali's privileges were because of his race, national origin, or age. ( See TAC ¶¶ 126-45.) Plaintiffs generally allege that conduct by "younger and/or white physicians" that has resulted in "lawsuits against ORMC, " "mortality and/or morbidity to patients, " or "ORMC being the subject of negative press coverage, " or that has "posed far greater danger to the quality of care provided patients, " has gone without peer review or other forms of discipline. ( Id. ¶¶ 127-31.) Where Plaintiffs allege specifics, they allege the type of doctor, the nature of the procedure, the negative outcome, and that there was no inquiry, peer review, or discipline following the incident. ( Id. ¶¶ 133-40, 142-43.)[8] Only one of these alleged comparators was involved in more than one incident. ( See id. ¶¶ 136-37 ("white younger urologist" performed unnecessary "total nephrectomy" on one patient, and, on another patient, "performed a cystoscopy and stent introduction... on the wrong ureter").) For the remaining comparators, Plaintiffs allege only one incident each. ( See id. ¶¶ 133-35, 138-40.) Plaintiffs do not allege the approximate dates of any of these comparator incidents.

Plaintiffs have also added allegations regarding other Indian doctors against whom Defendants allegedly discriminated. Specifically, some of Dr. Polepalle's cases "in which patients had experienced complications not uncommonly experienced by patients at ORMC treated by white physicians" were selected for review by an outside physician in 2007. ( Id. ¶¶ 146-48.) According to Plaintiffs, Dr. Polepalle's review, to which "none of those similarly situated white physicians were [ sic ] subjected, " was flawed because it was based only on hospital records and did not also consider Dr. Polepalle's private practice records. ( Id. ¶ 147-48.) Furthermore, the review was conducted without notice to Dr. Polepalle. ( Id. ¶ 149.) The review terminated upon Dr. Polepalle's voluntary surrender of his ORMC privileges after being fired from CRHC. ( Id. ¶ 150.) Plaintiffs also identify Dr. Jhaveri, who in 2000-01 complained to the Chief of the Medical Staff about a white ...

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