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Peck v. Montefiore Medical Center

United States District Court, S.D. New York

December 16, 2013

NAOMI PECK, MD, Plaintiff,
v.
MONTEFIORE MEDICAL CENTER, Defendant

Page 406

Naomi Peck, M.D., Plaintiff, Pro se, Bronx, NY.

For Montefiore Medical Center, Defendant: Jean L. Schmidt, LEAD ATTORNEY, Joseph Eric Field, Littler Mendelson, P.C. (NYC), New York, NY.

OPINION

Page 407

OPINION & ORDER

Paul A. Engelmayer, United States District Judge.

In this lawsuit, pro se plaintiff Dr. Naomi Peck (" Peck" ) applies for a preliminary injunction against defendant Montefiore Medical Center (" Montefiore" ). Peck seeks to enjoin Montefiore's Department of Radiology (" Department" ) from going forward with its ad hoc committee process, which could eventually lead to her discharge from the Department's residency program. For the following reasons, Peck's application is denied.

I. Background[1]

Peck, a Native American woman, is currently employed as a third-year medical resident in the Division of Nuclear Medicine of Montefiore's Department of Radiology. Peck Aff. ¶ 1. Peck is scheduled to

Page 408

complete her residency program in June 2014. Id.

On November 20, 2013, Dr. Stephen Amis (" Amis" ), the Chair of the Radiology Department, issued a letter entitled " Departmental Review of Proposed Adverse Action against Naomi Peck, MD." Schmidt Decl. Ex. A (" Letter" ). The letter stated that the Division Head (Dr. David Milstein), the Program Director (Dr. Anthony Abraham), and the Associate Program Director (Dr. Charito Love) in the Division of Nuclear Medicine had recommended that Peck be " removed from the Nuclear Medicine residency program at Einstein/Montefiore without delay due to substandard or otherwise unacceptable performance in several areas of your training program." Id.; see also Tr. at 15. The letter detailed Peck's alleged failings in the areas of patient care, practice-based learning and improvement, interpersonal and communication skills, and professionalism. See Letter at 1-2.

To this letter, Amis attached the " Montefiore Medical Center Hearing and Appeal Policy and Procedures for Redress of Adverse Actions and Grievances of Residents," see Schmidt Decl. Ex. B (" Adverse Actions Policy" or " Policy" ). In the letter, Amis noted, the Policy authorized him, " as department chair, to initiate a Departmental Ad Hoc Committee Review of this proposed action." Letter at 1. Amis stated that he had " elected to do so," and that he had " appointed an Ad Hoc Committee (the 'Committee') as provided by Section 3.2 of the Policy to conduct the review." Id.; see also Adverse Actions Policy § 3.2.1 (" If the departmental chairperson determines in his or her discretion to initiate a departmental review, the chairperson shall provide the resident with a written notification of that determination, which shall include a statement of the adverse action recommended or imposed and the general reasons for it, and shall be accompanied by a copy of this policy." ).

The Policy requires that the Committee be comprised of " at least three attending physicians from within the department" but " shall not include anyone who was directly involved in the underlying matters giving rise to the adverse action or who actively participated in the determination to propose or impose the adverse action." Adverse Actions Policy § 3.2.2. In his letter, Amis noted that, consistent with the Policy, the three doctors appointed to the Committee had not been " directly involved in the underlying matters giving rise to the adverse action," nor had they " actively participated in the determination to propose or impose the adverse action." Letter at 2. The " charge to the Committee [was] to either set forth a mutually satisfactory resolution or to conclude that further efforts to bring about a resolution at the departmental level would be fruitless." Id. If the Committee decided the latter, then Peck would " be notified of [her] right to request a hearing under Section 4.0 of the Policy." Id.

As to the steps following an ad hoc committee's review, Section 4 of the Policy states:

When an adverse action has been recommended or imposed and the matter cannot be resolved at the departmental level as provided in this policy (either under circumstances where the department chairperson determined not to convene a departmental review pursuant to Section 3.2 of this policy, or a departmental review was convened but no resolution was achieved), the resident shall be entitled to a hearing. All requests for hearings shall be in writing. . . . In the case where a departmental review [under Section 3.2] took place, the hearing request must be received from the resident by the department chairperson

Page 409

no later than ten (10) days after receipt of the ad hoc committee report stating that no resolution was achieved. In the event the resident does not request a hearing within the time and in the manner required by this policy, the resident shall be deemed to have waived the right to a hearing and to have accepted the adverse action involved.

Id. § 4.1. This hearing is subject to detailed required procedures, including, inter alia, written notice of the reasons for the adverse action, an opportunity for the resident to rebut these reasons in writing, and a right to be represented by an attorney. See id . § 4.3. The burden is on the department, as the proponent of the adverse action, to " demonstrate the factual basis and reasoning which support the recommended or imposed adverse action." Id. All testimony is to be " taken under oath," and all " evidence (oral or written) presented to the hearing panel shall be on the record." Id. Further:

Upon conclusion of the evidentiary portion of the hearing process and the receipt of written submissions (if requested by the panel), the hearing shall be officially closed. Thereafter, the hearing panel shall deliberate outside the presence of any other person except its legal counsel and, upon conclusion of its deliberations, shall make written findings and render its decision, which shall contain a statement of the reason(s) for its decision. The hearing panel shall endeavor to render its decision within twenty (20) days following the conclusion of the hearing. The decision shall take such form as the hearing panel shall determine and shall constitute the hearing panel's decision with respect to the adverse action.

Id. § 4.3.11. Either party has " the right to appeal the determination of the hearing panel to the president of Montefiore." Id. ยง 5.1. " The president shall make the final determination as to each finding upon which ...


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