Gomez v. Allegheny Health Services, Inc.

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
11-15-1995
Gomez v Allegheny Health
Precedential or Non-Precedential:
Docket 94-1899
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Recommended Citation
"Gomez v Allegheny Health" (1995). 1995 Decisions. Paper 291.
http://digitalcommons.law.villanova.edu/thirdcircuit_1995/291
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 94-1899
____________
FERNANDO GOMEZ, M.D.,
Appellant
v.
ALLEGHENY HEALTH SERVICES, INC., a/k/a/ ALLEGHENY
HEALTH EDUCATION AND RESEARCH FOUNDATION; MEDICAL
COLLEGE OF PENNSYLVANIA; DEPARTMENT OF VETERANS AFFAIRS
MEDICAL CENTER, BERNARD SIGEL, M.D.; HOWARD A. ZAREN,
M.D.; PASCHAL M. SPAGNA, M.D.; STEVEN G. MEISTER, M.D.;
GLEN WHITMAN, M.D.; LESLIE A MILLER, ESQUIRE
Appellees
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Civ. No. 92-5048
____________
Argued June 29, 1995
Before: HUTCHINSON*, ROTH, and WEIS, Circuit Judges
Filed November 15, 1995
____________
Richard J. Silverberg, Esquire (ARGUED)
Richard J. Silverberg & Assocs., P.C.
3700 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103-2793
Attorney for Appellant
___________________________________
* The Honorable William D. Hutchinson participated in the oral
argument and decision in this case, but died before he could join
or concur in this Opinion.
1
2
J. Freedley Hunsicker, Jr., Esquire (ARGUED)
Nadia Mykytiuk Jannetta, Esquire
Gregg R. Melinson, Esquire
Drinker Biddle & Reath
1100 PNB Building
1345 Chestnut Street
Philadelphia, PA 19107-3496
Attorneys for Appellees
Robert J. Gregory, Esquire
Equal Employment Opportunity Commission
1801 L Street, N.W.
Washington, DC 20507
Attorney for Amicus-appellant
____________
OPINION OF THE COURT
____________
WEIS, Circuit Judge.
In this appeal, a staff surgeon at a hospital asserts
that staff physicians refused to send patients to him because of
bias based on his national origin. As a result of the lack of
referrals, the hospital did not renew the plaintiff's contract of
employment. After a trial, the district court entered judgment
as a matter of law in favor of the hospital concluding that the
evidence failed to establish impermissible discrimination. We
agree and will affirm.
Plaintiff, Dr. Fernando Gomez, M.D., brought suit
against the Medical College of Pennsylvania, five physicians on
the staff of the College, and two other defendants asserting
various causes of action, including claims under Title VII of the
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Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and the
Pennsylvania Human Relations Act, 4 Pa. Cons. Stat. Ann. § 951 et
seq. (1995). The complaint alleged that plaintiff had been
terminated from his services at the hospital because he was of
Colombian extraction. Before trial, the district court dismissed
the claims against all of the defendants except the College1 and
limited the counts against it to asserted violations of Title
VII, the state Human Relations Act, and breach of contract.
The Medical College of Pennsylvania is an institution
that combines teaching medical students with providing medical,
as well as surgical, services to the community. Members of its
faculty also practice medicine in their respective specialties.
Faculty members' salaries cover both their academic and
clinical activities. The College uses the proceeds from the
charges made for professional services both to defray the
compensation and expenses of faculty members as well as to
subsidize the costs of the teaching program. Inadequate income
from patient treatment can become a serious problem for the
academic facility.
During 1987 the College became concerned about the lack
of referrals to the Division of Cardiothoracic Surgery. In an
effort to increase the number of procedures performed by the
unit, the College recruited Dr. Pascal Spagna, M.D., to become
Chief of the Cardiothoracic Surgery Division and a member of the
1
Both of the parties failed to advise the court of the status of
the various defendants, requiring an extensive review of the
district court's record to determine whether appellate
jurisdiction existed.
4
permanent surgical staff. His appointment led to improvement in
the volume of patients being treated in the division.
In 1988, Dr. Spagna sought help to handle the
increasing number of cases being referred to him. He contacted
plaintiff who was then on the surgical staff of another
institution, to discuss plaintiff joining the staff and faculty
at the College. In addition to assistance in the surgery itself,
Dr. Spagna was interested in having an associate who could take
over post-operative care, a function Dr. Spagna did not
particularly enjoy. Apparently at some time before July 1988,
Dr. Spagna extended an informal offer to plaintiff.
During the formal recruitment process, the Chairman of
the Department of Surgery at the College, Dr. Bernard Sigel,
M.D., Dr. Spagna's superior in the hospital and academic
hierarchy, interviewed plaintiff. Because the cardiology and
cardiothoracic divisions work together so frequently, Dr. Spagna,
as a matter of courtesy, invited Dr. Steven Meister, Chief of the
Division of Cardiology, to meet with plaintiff. Dr. Meister,
however, was in the Department of Medicine and did not have any
responsibility for hiring surgeons.
At the conclusion of the interview, Dr. Meister sent
his appraisal of plaintiff to Dr. Spagna in a letter of July 21,
1988. Dr. Meister emphasized that he would support Dr. Spagna's
selection of a partner, whomever it was. However, Dr. Meister
expressed reservations about the small number of heart operations
and internal mammary grafts [used in coronary artery bypass
surgery] that plaintiff had performed during the preceding ten
5
years when he had been employed at a high volume surgical
institution. Dr. Meister wrote that another concern was the
plaintiff's "presentability." "He is a foreigner and both speaks
and looks it. . . . I have some concerns that he may not be the
guy who should walk into a patient's room first and discuss an
operation, nor am I entirely comfortable that he is the man to be
communicating with referring doctors after the surgery."
Dr. Meister then recommended Dr. Haji Shariff, M.D.,
who had performed well in surgery on the cardiologists' patients.
Dr. Meister particularly noted Dr. Shariff's facility with the
internal mammary approach. From the post-operative care
standpoint, Dr. Shariff had been conscientious and had "earned
the cardiology group's respect." The letter continued: "From
the ``presentability' standpoint, Haji is also a foreigner, but
speaks and acts very American. In this respect he is very much
ahead of Gomez."
The record does not disclose whether Spagna replied to
these comments, but in a letter dated August 26, 1988, he and Dr.
Sigel offered plaintiff a position in the Division of
Cardiothoracic Surgery. If he accepted, plaintiff would report
to the chief of that division and to the Chairman of the
Department of Surgery. In addition, the College would appoint
plaintiff to the position of associate professor.
The letter from Spagna and Sigel stated the offer was
for a "full time, salaried position." It further read:
"D. A substantial financial advance is made by the
Department of Surgery in funding this position, (i.e.,
6
[salary etc.]) and as a matter of sound financial
policy, the amount so advanced is expected to be
returned to the Department of Surgery from income
resulting from clinical practice."
Plaintiff began his service at the College on September
12, 1988 as assistant surgeon to Dr. Spagna. Cases were referred
by staff and outside cardiologists to the Spagna/Gomez team as
the College's permanent cardiothoracic surgeons. Dr. Spagna
usually decided whether he or plaintiff would be the primary
surgeon, unless the referring physician requested otherwise.
In the period from July 1 to December 31, 1988, which
included the two and one-half months when plaintiff worked with
Dr. Spagna, eighty-five operations were performed, a larger
number than had taken place during the preceding six-month
period. In the following six-months, however, the Spagna/Gomez
operations dropped from eighty-five to sixty-one. In the next
six months, the number fell to fifty.
On February 12, 1989, a physician in the Department of
Medicine, Division of Nephrology and Hypertension, wrote to Dr.
Sigel as Chairman of the Department of Surgery, complaining about
a consultation with plaintiff about a patient. The physician
wrote that plaintiff "assumed an arrogant and offensive attitude
on the telephone, lecturing and quizzing me as if I were a junior
resident." On the back of this letter, Dr. Meister wrote: "Pat
[Spagna]: This is, as you know, the latest of several
complaints. I think you need to think about this long and hard."
Dr. Meister finished with a postscript: "I personally don't
7
think it's a great idea for him to speak to referring d[octo]rs
or conscious p[atien]ts."
On September 5, 1989, Dr. Meister wrote to Dr. Leonard
Ross, Executive Vice Dean of the College, reporting some
interpersonal conflicts with plaintiff and describing two recent
unfavorable incidents. The first involved Dr. Nelson Wolf's
patient who had been operated on the previous day. While making
rounds, Dr. Wolf, the attending cardiologist, gave the patient a
carotid sinus massage, a treatment that plaintiff later told the
patient's family had caused a stroke. Dr. Wolf strongly disputed
the plaintiff's cause and effect diagnosis, as did Dr. Meister.
The other incident involved a post-operative patient
who had been discharged from the College and, on the same day,
was admitted to another hospital with complications. The patient
refused to return to the College for further contact with "Dr.
Hitler," as he referred to plaintiff. Dr. Meister concluded that
he and Dr. Wolf had "separately indicated to Dr. Spagna that we
do not want Dr. Gomez involved with our patients -- at least
while they are conscious."
Dr. Kevin Furey, M.D., a cardiologist not on the staff
of the College, testified at trial that he refused to send
patients to Dr. Spagna because of poor results in cases, and
because on one occasion plaintiff refused to operate on a patient
in an emergency situation.
Dr. Roger Marinchak, a staff cardiologist, testified
that he, too, had been concerned about Spagna/Gomez surgical
outcomes, and for that reason, no longer referred cases to them.
8
Moreover, plaintiff had dealt with Dr. Marinchak as if he were
interfering with the patients. Dr. Peter Kowey, another staff
cardiologist, also asserted that he had been dissatisfied with
the morbidity and mortality results from the Spagna/Gomez team.
In addition, Dr. Kowey had a number of disagreements
with the team about proper post-operative treatment of patients.
Plaintiff, on the other hand, testified that he believed it was
in the best interests of the patients for the surgeon to have the
primary responsibility for post-operative care.
In September 1989, Dr. Sigel and Dr. Spagna both
prepared glowing reviews of the plaintiff's professional
competency and patient care. Dr. Sariel Ablaza, who also
specialized in cardiothoracic surgery, testified that plaintiff
was a competent "no nonsense" surgeon who believed that he, and
not the cardiologist, should provide post-operative care for the
patient. Dr. Ablaza also commented favorably on the plaintiff's
presentations to residents at the College, saying that he was
"very serious and is all business."
Plaintiff testified that in addition to the patients
assigned to the Spagna/Gomez team, he took all cases coming from
the trauma unit, approximately ten per year. At the beginning of
his tenure, plaintiff and Dr. Spagna would alternate being the
primary surgeon on other cases referred to the team. Later, Dr.
Spagna said that he had been instructed by the referring
physicians to do the surgery himself. Dr. Spagna told plaintiff
that he hoped the situation would change. However, it did not.
9
Dean Ross was advised of the conflict between the
Spagna/Gomez team and the cardiologists. Ross met with the
Chairmen of the Departments of Surgery and Medicine, as well as
Drs. Spagna and Meister in an unsuccessful attempt to resolve the
problem. Dean Ross testified that the cardiologists felt "in all
due professional conscience," that they could not refer cases to
the Spagna/Gomez team because of mortality and morbidity results
as well as poor communication. He also had been told by Dr.
Meister that plaintiff had difficulty communicating and would
become frustrated and speak very sharply to patients and their
families.
Dr. Sigel left the position as Chairman of the
Department of Surgery in October 1989 and was succeeded by Dr.
Howard Zaren, M.D. Dean Ross told Dr. Zaren that he needed to
strengthen the divisions that were weak in surgery. As a
consequence, Dr. Zaren recruited new chiefs for neurosurgery,
plastic surgery, and in March 1990, contacted Dr. Glen Whitman, a
highly qualified individual, as a prospective chief for the
Cardiothoracic Surgery Division.
During negotiations in the months following, Dr.
Whitman made it clear that he would be unwilling to accept the
position if it meant assuming financial responsibility for the
Spagna/Gomez team. Dr. Whitman had not recruited them and wished
to build his own unit.
At this juncture, the College was in a very difficult
financial condition, and had just been acquired by Allegheny
General Hospital of Pittsburgh. Dean Ross and Dr. Zaren decided
10
plaintiff had to be discharged, and that Dr. Whitman would take
over as Chief of the Cardiothoracic Surgery Division following a
six-month probationary period. Dr. Spagna agreed to the
realignment and also accepted a fifty percent reduction in his
compensation. He died unexpectedly in 1992.
In a June 26, 1990 meeting, Dr. Zaren and Dr. Spagna
told plaintiff he was "going to be fired from the hospital after
December 30 of 1990." On the following day, plaintiff received a
formal letter renewing his tenure for only six months.
After plaintiff requested a reason for his termination,
Dr. Zaren wrote a letter stating that "because you have generated
few, if any, new patient referrals to the Division of
Cardiothoracic Surgery, it is not economically feasible for the
Department to continue to exhaust its limited resources to employ
you." Dr. Zaren did, however, recommend the plaintiff's
termination date be extended to June 30, 1991, and suggested that
plaintiff use the additional time to seek new employment. That
effort, however, proved largely unsuccessful.
The case was submitted to the jury, which found on
special interrogatories that plaintiff had proved "but for his
national origin/race (Columbian) [sic], the Medical College of
Pennsylvania (MCP) would have renewed his employment contract
annually," and that his damages totaled $2,484,000.
In ruling on post-trial motions, the district court
granted judgment as a matter of law to the defendant, observing
that although plaintiff was of Colombian origin: "No attempt was
made to show that [plaintiff] had mannerisms which were thought
11
to be peculiar to Colombians." The court commented that although
the plaintiff's claim hinged entirely on the alleged animus of
Dr. Meister, there was no evidence that he either directed or
made an effective recommendation for the non-renewal of the
plaintiff's contract. "The only evidence is that Dr. Meister's
superiors made the non-renewal decision, and as to them, no
national origin discrimination animus is assigned."
In reviewing the testimony, the trial judge commented:
"There is no evidence to rebut defendant's evidence that the
cardiologists' decision to stop referring their patients for
surgery to both Dr. Spagna and Dr. Gomez were, by each, an
exercise of independent professional judg[]ment, made in the best
interests of their particular patients." The court concluded,
"no rational jury could have found that MCP [the College] was
motivated by anti-foreign/race animus toward the plaintiff."
Plaintiff has appealed, arguing there was sufficient
evidence from which the jury could find that Dr. Meister did not
refer patients because of discriminatory bias, and that he
exercised his influence to have the College terminate the
plaintiff's employment. Plaintiff did not appeal the pre-trial
dismissal of Dr. Meister and the other physicians.
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I.
In reviewing the grant of judgment as a matter of law
following a trial, an appellate court applies the same standard
as the trial court. Rotondo v. Keene Corp., 956 F.2d 436, 438
(3d Cir. 1992). The question is whether, in viewing the evidence
in the light most favorable to the losing party, no jury could
decide in that person's favor. Walter v. Holiday Inns, Inc., 985
F.2d 1232, 1238 (3d Cir. 1993)_"
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