United States District Court, N.D. New York
STEWART A. KAUFMAN, M.D., Plaintiff,
THE COLUMBIA MEMORIAL HOSPITAL, d/b/a COLUMBIA MEMORIAL HOSPITAL, JAY P. CAHALAN, individually, and NORMAN A. CHAPIN, M.D., individually, Defendants
[Copyrighted Material Omitted]
For Plaintiff: RONALD G. DUNN, ESQ., PETER N. SINCLAIR, ESQ., OF COUNSEL, GLEASON, DUNN, WALSH & O'SHEA, Albany, New York.
For Defendants: ANDREW L. ZWERLING, ESQ., JASON HSI, ESQ., MARIANNE MONROY, ESQ., OF COUNSEL, GARFUNKEL WILD, P.C., Great Neck, New York.
Mae A. D'Agostino, U.S. District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff Stewart Kaufman, M.D. alleges that Defendants discriminated against him based on his age in violation of the Age Discrimination and Employment Act of 1967, 29 U.S.C. § § 621-634 (" ADEA" ) and the N.Y. Exec. Law § 296 (" New York State Human Rights Law" or " NYSHRL" ) and further, that defendants discriminated against him on the basis of his disability in violation of the Americans with Disabilities Act, (" ADA" ), codified at 42 U.S.C. § 12101 et seq. and the NYSHRL. See Dkt. No. 1. Currently before the Court is Defendants' motion for summary judgment. Dkt. No. 40. For the reasons stated herein, Defendants' Motion for Summary Judgment is granted in part and denied in part.
Plaintiff Kaufman is an orthopedic surgeon residing in Columbia County, New York. Dkt. No. 46-19 (" Plf's Resp. to Defs' Stmt. of Mat. Facts" ) ¶ ¶ 1-2. Defendant Columbia Memorial Hospital (" CMH" ) is a New York not-for-profit corporation. Id. ¶ 3. During the time period relevant to Plaintiff's claims, Defendant Jay Cahalan was the Chief Operating Officer of CMH, and Defendant Norman A. Chapin, M.D. was its Medical Director. Id. ¶ ¶ 4-5.
In his Amended Complaint, Plaintiff alleges that the following medical conditions qualify as a disability under applicable law: endoscopic surgery on his left knee (1981); surgery to correct bilateral cataracts (1985); back surgery on his L4-5 vertebrate disc to stabilize degenerative disc disease and stenosis of the foramina (" Spinal Condition" ) (1996); splenectomy and chemotherapy for small cell lymphoma (1997); laparotomy and chemotherapy for large cell lymphoma (2001); back surgery on his L2-3 and L4-5 vertebrate discs to further stabilize the Spinal Condition (2006); surgery to correct carpal tunnel syndrome (2009); and sleep apnea treated by a Continuous Positive Airway Pressure (" CPAP" ) device (2009). Dkt. No. 4 ¶ ¶ 58-68; 98-100.
Prior to his employment at CMH, Plaintiff and his partner, Dr. Louis DiGiovanni, practiced medicine through their own private orthopedic practice, Hudson Valley Orthopedic Associates, P.C. Plf's Resp. to Defs' Stmt. of Mat. Facts ¶ 15. Plaintiff and CMH entered into a three-year employment agreement on June 6, 2008; Plaintiff was 66 years old at the time. Id. ¶ 19. Dr. DiGiovanni also signed an employment contract with CMH, the length of which was five years. Both Plaintiff and Dr. DiGiovanni were represented by any attorney, Joshua Levine, during the negotiation of their employment agreements
with CMH; Defendant Cahalan represented CMH. Id. ¶ 17.
With respect to the length of his contract, Plaintiff testified:
Q: What did you do after you found out that Doctor DiGiovanni according to you had a five year contract?
Q: Did you call up Josh Levine and say, hey, what's up?
A: No, because I thought that I was going to work for three years and then I was going to do IME's [independent medical exams] and settle out into some pasture somewhere, but obviously, that was not the intention of the contract.
Q: So it was your thought to retire from the hospital after three years anyway?
A: No. I was going to just pare back my practice significantly and take care of some of the stuff that nobody else likes to do.
. . .
Q: But when you found out according to you during that time frame that doctor DiGiovanni apparently had a five year contract, rather than complain you just figured at the end of three years you would just stop employment with the hospital and do IME's?
A: No, maybe still work for the hospital. I believe we were talking about working for the hospital just as I said seeing patients that take up a lot of time and don't really produce anything and need to be seen.
Dkt. No. 40-21 (" Kaufman Dep." ) at p. 145-46.
At the time he was hired, Plaintiff believed that each of the conditions he now claims should be considered in determining whether he was disabled were known to CMH, except for sleep apnea. Plf's Resp. to Defs' Stmt. of Mat. Facts ¶ 31. Plaintiff's sleep apnea condition was diagnosed and successfully treated in 2009 while Plaintiff was on leave from CMH. Id. ¶ 32. Following the end of his employment at CMH, Plaintiff remained able to work, and continued to do so by performing independent medical examinations. Id. ¶ 38.
On March 18, 2009, CMH officials met with Plaintiff to discuss his rate of revision for total knee replacement surgeries. Id. ¶ 40. CMH officials presented Plaintiff with data which purported to show by comparison that Plaintiff's rate of revision was higher than his counterparts at CMH. Dkt. No. 40-6. Plaintiff now contends that these data are misleading because he performed a number of revisions on patients for whom he did not perform the original procedure. Plf's Resp. to Defs' Stmt. of Mat. Facts ¶ 39. During that meeting, CMH also notified Plaintiff that certain operating room staff members had reported that his focus and stamina in the operating room was poor, and had made complaints about his performance during surgery. Id. ¶ 41. Plaintiff was relieved of total knee replacement surgeries, and he agreed to undergo additional training and review his prior cases with colleagues. Id. ¶ 43.
In or about July 2009, CMH officials met with Plaintiff to discuss the duration of two or three of his hip surgeries, which they contended were longer than the national average. Id. ¶ 44. Plaintiff now claims, upon information and belief, that other surgeons at CMH had hip surgeries that were longer than the national average. Dkt. No. 46-1 (" Kaufman Decl." ) ¶ 30. In or about Spring 2009, Plaintiff ceased performing large joint surgeries. Plf's Resp. to Defs' Stmt. of Mat. Facts ¶ 45.
Later in July 2009, Plaintiff was referred by CMH to neuropsychologist Aaron Philip Nelson, Ph.D for a neuropsychological examination. Dr. Nelson evaluated Plaintiff and issued a report dated July 22, 2009. Dkt. No. 40-8 (" Nelson Report" ). In his report, Dr. Nelson stated:
I had the opportunity of seeing Stewart Kaufman for Neuropsychology evaluation. As you know, he is a 67 year old physician with a complex medical history referred due to concerns regarding his capacity to continue to practice as an orthopedic surgeon.
I reviewed the context of the evaluation with Dr. Kaufman at the start of the interview. Specifically, I reviewed with him the fact that I had been asked to perform this evaluation by his Medical Director because of concerns that had been raised regarding his ability to practice. I indicated that the evaluation was not occurring as a part of his medical care. I also informed Dr. Kaufman that I would be preparing a report and communicating directly with Dr. Chapin regarding my findings and impression. Dr. Kaufman indicated that he understood and accepted these conditions.
With regard to his understanding of how concerns regarding his performance came about, Dr. Kaufman indicated that " somebody suggested I have poor judgment." He mentioned a review of his total knee replacement surgeries that revealed an elevated frequency of re-do procedures. He subsequently learned that the technique he had been utilizing had been out of favor in the surgical community. He explained that he had not known that the technique had been discontinued until the review occurred. A review of his total hip replacement procedures indicated a longer than average surgical time; he attributed this to the physically strenuous nature of the procedure (and his back pain) and discontinued performing this operation. He continues to treat hip fractures and take call. He also continues to perform knee scope, shoulder scopes, carpal tunnel surgery and other smaller scale cases that do not place as much of a physical strain on his back. He estimates that he does 4-6 cases per week. He tells me that he has 2 years remaining on his contract with the hospital and that he is considering stepping back from procedures altogether at that point, perhaps doing chart reviews etc instead.
. . .
IMPRESSION: In summary, this is a 67 year old physician with a complex medical history referred due to concerns regarding his capacity to continue to practice as an orthopedic surgeon. Baseline intellectual ability is estimated in the superior range. The neuropsychological examination reveals variability in the sphere of attention and executive function. Performance on measures of simple attention span were in the average range; I suspect these scores are considerably lower than his optimal baseline. He was unable to contend with the WCST, a task entailing nonverbal reasoning and responsivity to corrective feedback. He exhibited a deficit in sustained attention on the Connors CPT and made errors on tasks of response inhibition (Go/No Go) and complex motor programming. Performance on measures of anterograde memory was excellent with the exception of the
RAVLT, a test entailing learning and memory for a list of words. His learning curve was quite shallow and he made a large number of within-trial repetitions, again implicating problems with self-monitoring. Performance on measures of manual motor speed and dexterity were suggestive of diminished agility with the left hand. It is certainly possible that the fine motor findings are related to a chemotherapy-induced peripheral neuropathy.
The etiology of these findings is uncertain. He has certainly had a rugged medical course over the past 12 years or so with bouts of small and large-cell lymphoma, a stem cell transplant, prostate surgery with complications, several spine surgeries, and a cardiac arrhythmia. He has been treated with multiple cycles of CHOP chemotherapy (cyclophosphamide, adriamycin, vincristine, and prednisone) plus Rituxan. Although we do not know a lot about the long-term effects of these drugs, there is reason to suspect that they may convey some degree of neurotoxicity in addition to cerebrovascular compromise through cardiac effects.
The overall topography of the examination implicates frontal / subcortical brain systems and is commonly seen in a setting of ischemic vascular disease. He has never had a brain imaging study to my knowledge so I have no basis for making this diagnosis in anything more than a speculative fashion. To be thorough, these findings can also be seen in a context of depression, adverse medication side effects, or in any setting in which attentional systems are undermined. I should add that there is no history of depression (per his report) and he flatly denies current symptoms along these lines as indicated by his score of zero on the BDI-II.
Regardless of the basis, these findings are concerning with respect to Dr. Kaufman's ability to sustain attention and focus over extended periods of time. To the extent that his work involves this type of sustained concentration, the examination does have adverse implications for his current capacity to practice. It is my opinion that his practice should be closely monitored at this time.
On August 10, 2009, Plaintiff met with CMH officials to discuss the Nelson Report. During this meeting, Plaintiff was informed that he should take a leave of absence until CMH received the results of the recommended follow-up consultation and confirmation that he was successfully treated for any conditions affecting his performance. Plf's Resp. to Defs' Stmt. of Mat. Facts ¶ 55. Plaintiff requested that his practice be monitored, as suggested by Dr. Nelson, rather than take a leave of absence. Id. While on leave, CMH paid Plaintiff $37,000 in vacation and paid benefit time credits. Id. ¶ 56.
Plaintiff and CMH officials met again on August 24, 2009, to discuss questions concerning Dr. Nelson's report. Thereafter, Defendant Chapin emailed Dr. Nelson, with a copy to Plaintiff, to raise these clarifying questions. Dr. Nelson wrote ...