Gurbani v. Johns Hopkins Health Sys. Corp.

Barkha Gurbani v. Johns Hopkins Health Systems Corp., et al., No. 1825, September
Term 2016. Opinion by Arthur, J.
EDUCATION – BREACH OF CONTRACT OR NEGLIGENCE IN ACADEMIC
DECISIONS
In Hunter v. Board of Education of Montgomery County, 292 Md. 481 (1982), the Court
of Appeals established a policy of declining to entertain actions for either negligence or
breach of contract based on an allegation that an educator improperly evaluated a student.
The Court declared that “an award of money damages” is “a singularly inappropriate
remedy for asserted errors in the educational process.” Id. at 487. Although Hunter
concerned a minor child enrolled in public school, Hunter is only a single example of a
deep collection of case law that overwhelmingly favors judicial noninterference with
academic decisions at all levels of education. Generally, courts may not override an
academic decision unless it is such a substantial departure from accepted academic norms
that the decision maker did not actually exercise professional judgment.
A private medical school’s decision to dismiss a surgical resident based on unfavorable
assessments of the resident’s clinical performance is an academic decision that is entitled
to deference. In this case, a former resident’s assertions that the University faculty
incorrectly assessed her performance could not serve as the basis for a breach-of-contract
claim seeking to recover damages resulting from the allegedly improper dismissal.
Moreover, courts will not entertain contract claims that in fact attack the quality of
educational services. The resident’s assertions that the University performed certain
educational services, but did so inadequately, could not serve as the basis for a breach-of-
contract claim.
Although the resident produced some evidence that the University arguably may have
failed to fulfill a few identifiable contractual provisions, those arguable breaches could
not serve as the basis for an award of damages resulting from the academic dismissal.
Any relationship between the arguable procedural failures and the academic dismissal
was too speculative and subject to too many future variables to establish that the alleged
breaches caused the alleged damages.
Maryland’s policy against entertaining actions for negligent education also precludes a
claim alleging that an educational institution negligently retained and supervised faculty
members who allegedly made improper student evaluations.
SUMMARY JUDGMENT – EVIDENCE OF BAD FAITH
Where a plaintiff alleges that a defendant acted in bad faith, the defendant is entitled to
summary judgment absent a showing, supported by particular facts, shown in detail and
with precision, sufficient to allow a fact finder to conclude that the defendant lacked good
faith. The plaintiff here failed to produce sufficient evidence of bad faith by the
defendants.
In this case, a dismissed medical resident alleged that certain educators acted in bad faith
when they gave unfavorable evaluations of her performance. The resident lacked any
direct evidence of animus. Her mere characterizations of supposed hidden motives of her
evaluators was insufficient as evidence of bad faith. Although the resident theorized that
two evaluators may have had some motive to retaliate against her after she complained
about their conduct, the evidence failed to demonstrate the necessary connection between
the alleged retaliatory motive and the actions that it allegedly motivated. The resident’s
testimony was neither detailed nor precise enough to permit the conclusion that her
complaints about her evaluators predated their unfavorable assessments of her
performance. Moreover, the challenged assessments were fully consistent with the
independent assessments of other medical professionals who observed the resident
around the same time.
Circuit Court for Baltimore City
Case No. 24-C-15-002959
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1825
September Term, 2016
______________________________________
BARKHA GURBANI
v.
JOHNS HOPKINS HEALTH SYSTEMS
CORP., et al.
______________________________________
Wright,
Arthur,
Albright, Anne K.
(Specially Assigned),
JJ.*
______________________________________
Opinion by Arthur, J.
______________________________________
Filed: June 1, 2018
* Judge Matthew J. Fader did not participate in
the Court’s decision to designate this opinion
for publication pursuant to Md. Rule 8-605.1.
In this case, a physician brought an action seeking damages resulting from her
academic dismissal from an orthopaedic surgery residency program at the Johns Hopkins
University School of Medicine. After extensive discovery and briefing, the Circuit Court
for Baltimore City entered summary judgment against the physician on all of her claims.
We affirm, primarily because of the principle that courts must defer to good-faith
academic decisions concerning promotion and dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Barkha Gurbani, M.D., makes allegations that concern multiple years of
her graduate medical education. In connection with the summary judgment motion, the
parties submitted transcripts from dozens of depositions, as well as a deluge of
evaluations, memos, and emails relating to the residency.
Dr. Gurbani seeks to prove that she was improperly dismissed because the
program failed to live up to its end of the residency contracts or because of deliberate
actions by two faculty members and the program director. The defendants assert that Dr.
Gurbani failed to advance because of her numerous, well-documented deficiencies as a
surgical resident, and they contend that the decisions of the University faculty should not
be second-guessed through a jury trial.
Three main principles guide our examination of this voluminous record. In an
appeal from the grant of a defendant’s motion for summary judgment, we review the
facts and all inferences drawn from those facts in the light most favorable to the plaintiff.
See, e.g., Jackson v. Dackman Co., 422 Md. 357, 370 (2011). The inferences drawn in
favor of the plaintiff, however, “must be reasonable ones.” Clea v. Mayor & City
Council of Baltimore, 312 Md. 662, 678 (1988) (emphasis in original). Furthermore, a
dispute of fact, in itself, will not prevent the entry of summary judgment; rather a court is
precluded from entering summary judgment only when the record reveals a genuine
dispute of a material fact. See, e.g., Castruccio v. Estate of Castruccio, 456 Md. 1, 34
(2017).
A. Dr. Gurbani’s Path to the Residency Program at Johns Hopkins
Barkha Gurbani earned a bachelor’s degree from Johns Hopkins University in
2004 and a medical degree from the University of California, Los Angeles, in 2009.
During her fourth year of medical school, she took an elective course in the pediatric
orthopaedics department at Johns Hopkins. At that time, the Johns Hopkins faculty rated
her performance as “outstanding” in all categories. Because Dr. Gurbani aspired to
become an orthopaedic surgeon, she pursued a residency in that field.
A residency is a form of education structured so that a medical school graduate
can develop into an independent practitioner in a particular specialty. See Accreditation
Council for Graduate Medical Education (ACGME), Glossary of Terms, at 5, 8 (2013),
https://www.acgme.org/Portals/0/PDFs/ab_ACGMEglossary.pdf. Residencies in
orthopaedic surgery last for five years. ACGME Program Requirements for Graduate
Medical Education in Orthopaedic Surgery, at 1 (2017), https://www.acgme.org/Portals/
0/PFAssets/ProgramRequirements/260_OrthopaedicSurgery_2017-07-01.pdf. The first-
year curriculum focuses on basic surgical skills, and the curriculum for the remaining
four years is more specialized in orthopaedics. Id. at 16-17.
A medical residency is a “physically, emotionally, and intellectually demanding”
2
experience which “requires longitudinally-concentrated efforts on the part of the
resident.” Id. at 1. Residents develop through a combination of “didactic” and “clinical”
experiences. Id. at 3. In regular didactic sessions, residents receive formal instruction to
increase their knowledge and understanding of medicine. Id. at 11. Most of a resident’s
education occurs in the clinical setting, “within the context of the health care delivery
system.” Id. at 1. The resident participates directly in patient care under the guidance
and supervision of the attending physicians on the program faculty. Id. Over time, as the
resident demonstrates growth, the attending physicians delegate to the resident a
progressively larger share of the responsibility for patient care. Id. at 28. The faculty
members also evaluate the resident’s progress and advise the program director on
decisions such as the promotion, remediation, or dismissal of a resident. Id. at 20.
In July 2009, Dr. Gurbani started a residency in orthopaedic surgery at the
University of Pennsylvania. She was placed on probation at the end of her first
postgraduate year. She was reinstated as a resident in good standing as of November
2010, at which point she left that program. In a letter protesting the probation, she
acknowledged that “the decision to place [her] on probation was based on [her]
performance for [her] entire” first postgraduate year. In the present litigation, Dr.
Gurbani seeks to characterize that probation as “nonacademic.”1
1
The record includes a copy of a letter that Dr. Gurbani wrote in August 2010 to
protest her probation at the University of Pennsylvania. Dr. Gurbani acknowledged that
the “primary motivating factor” for the decision was her failure to change her “personal
behavior toward hospital staff.” She further acknowledged that a number of other issues
(reporting requirements, interactions with other residents, call coverage protocol, and one
poor course evaluation) contributed to the decision. Presaging some of the events in this
3
Dr. Dawn LaPorte, director of the orthopaedic surgery residency program at Johns
Hopkins University School of Medicine, spoke with Dr. Gurbani while she was serving
out her probation. The University of Pennsylvania disclosed in writing that, although Dr.
Gurbani had satisfied the requirements of the first year of her residency, she had been
subject to “disciplinary action in the form of probation[.]” Although Dr. LaPorte knew
about the probation, she invited Dr. Gurbani to transfer to Johns Hopkins.
Along with the transfer, Dr. Gurbani registered with the Maryland Board of
Physicians as an unlicensed practitioner. On her application, she answered “No” to a
question that asked whether she had ever been “placed on probation . . . while in a
postgraduate residency training program[.]” Dr. Gurbani claims that Dr. LaPorte had
advised her that she should not disclose her previous probation to the Board of
Physicians. Dr. LaPorte denies that she ever advised Dr. Gurbani in that way. When Dr.
Gurbani renewed her registration in the following year (without consulting with Dr.
LaPorte), she again represented to the Board of Physicians that she had never been on
probation during a residency.
B. The Initial Resident Contract: July 2011 through June 2012
On July 1, 2011, Dr. Gurbani entered into a one-year contract with Johns Hopkins
University through its School of Medicine. Under the contract, she was appointed as a
second-year postgraduate resident in the five-year program in orthopaedic surgery. The
contract required her to provide clinical services at Johns Hopkins medical facilities in
case, Dr. Gurbani disputed reports about her conduct and accused colleagues of
unprofessional behavior.
4
exchange for a stipend, liability insurance, and other benefits.
The residency contract covered both employment and educational services. It
required Dr. Gurbani to “[f]ulfill the educational requirements of the Program.” It
required the University to provide “appropriate and adequate faculty and Medical Staff
supervision for all educational and clinical activities.” It stated that the program director
and faculty would “[e]valuate” Dr. Gurbani’s “educational and professional progress and
achievement . . . on a regular and periodic basis.”
The contract authorized the program director, Dr. LaPorte, to take “corrective
action” under the University’s general policy for probation, suspension, and termination
if she deemed Dr. Gurbani’s performance to be deficient. It required the University to
“[p]rovide a mechanism to fairly deal with academic or disciplinary actions” through the
University’s general grievance policy. The contract included a list of references to those
written policies, which were available to Dr. Gurbani through the University’s website.
The University expressly disclaimed any commitment to promote Dr. Gurbani at
the end of the one-year term. The contract stated: “Reappointment and/or promotion to
the next level of training is in the sole discretion of the Program Director and is expressly
contingent on several factors, including . . . satisfactory completion of all training
components, [and] satisfactory performance evaluations[.]” The contract required the
University to give written notice at least four months before the end of the term in the
event that it might decline to renew the appointment. But if the “primary reason” for the
nonrenewal occurred within those last four months, the contract required written notice as
far in advance “as the circumstances w[ould] reasonably allow.”
5
The contract stated that, although the parties anticipated that the appointment
would continue for the one-year term, the University could terminate the contract at any
time on the grounds specified in the contract. The contract identified a resident’s failure
to satisfy educational or professional responsibilities as a ground for termination. The
contract permitted Dr. Gurbani to pursue a grievance with the University in the event of
non-renewal of her appointment or termination from the program.
C. Assessments from Dr. Gurbani’s First Three Rotations
Beginning in July 2011, Dr. Gurbani progressed through a series of rotations
focusing on different aspects of orthopaedic medicine at Johns Hopkins. Each rotation
lasted for about 10 weeks. Her first rotation was at the Bayview Medical Center, her
second was on the Hopkins spine service, and her third was in sports medicine.
Members of the program faculty completed formal evaluations. On mid-rotation
evaluations, faculty members used a scale of 1 to 3 to assess whether a resident was
meeting expectations in different areas. On end-rotation evaluations, faculty members
used a scale of 1 to 5 to assess how often a resident achieved different standards. Other
medical professionals who worked with Dr. Gurbani also submitted evaluations in which
they rated her performance from poor to excellent in various categories. All types of
evaluations included a space for written comments. Once a formal evaluation was
submitted, Dr. Gurbani had access to the scores and the comments.
In early evaluations, faculty members commented that Dr. Gurbani needed to
improve “her surgical skills” and that she needed to “continue to read to increase [her]
fund of knowledge.” Overall, however, the faculty praised her performance from the first
6
two rotations and noted that she was working hard to improve.
The faculty members did not always submit their evaluations promptly. For
instance, one faculty member submitted a highly positive evaluation of Dr. Gurbani’s
performance on the Hopkins spine service over five months after that rotation ended.
Meanwhile, Dr. Gurbani scored in the 38th percentile among second-year
postgraduate students on the Orthopaedic In-Training Examination (OITE), a
standardized assessment of a resident’s knowledge of orthopaedics. By all accounts, her
score was adequate relative to other residents in the program.
Throughout the academic year, the attending physicians regularly discussed Dr.
Gurbani’s performance at faculty meetings. Dr. LaPorte documented those meetings by
taking notes that her assistant would later transcribe into a separate electronic document
for each meeting. In those memos, Dr. LaPorte recorded the various concerns that
faculty members expressed about Dr. Gurbani’s progress. For instance, the memo from a
September 2011 meeting states that one doctor had raised “concerns regarding
professionalism and effective communication” in her care of pediatric patients. The
memo from an October 2011 meeting states that one doctor described her as “behind the
curve,” another commented that she “need[ed] to work on” her surgical skills, and
another observed that she would “get[] overwhelmed very quickly” and had “difficulty
with simple tasks,” such as applying casts.
In this appeal, Dr. Gurbani relies on those memos to establish certain facts, but she
also appears to contend that the criticisms from these memos should be discounted. She
accuses University officials of fabricating the faculty comments long after they decided
7
to dismiss her, but she points to nothing in the record that would support her accusation.2
In any event, other unchallenged testimony shows that multiple faculty members voiced
increasing concerns throughout the academic year. In the words of one faculty member,
“as the responsibilities and expectations increased, . . . there were greater concerns
expressed that she wasn’t meeting expectations.”
Dr. Gurbani began to encounter more serious difficulty after she advanced to the
sports medicine rotation in November 2011. In his mid-rotation evaluation, Dr. Andrew
Cosgarea determined that Dr. Gurbani was not meeting expectations for basic knowledge
of the rotation, critical thinking, and surgical skills. Dr. Cosgarea commented that she
needed “to be better prepared in the operating room by reading about the surgical
procedures and reviewing anatomy.” In his end-rotation evaluation, he commented that,
even though he had advised her about ways to improve, he still considered “her surgical
skills and understanding of anatomy to be below average.” Dr. Cosgarea gave her a score
of 2 out of 5 in the “Technically Competent” category, meaning that he observed that she
was “technically competent to perform surgical procedures consistent with [her] level of
training” about 20 percent to 39 percent of the time.
D. The Semiannual Evaluation Meeting: January 26, 2012
The contract specified that the program director would “present to and discuss
with the Resident a written summary of the evaluations at least once during each six
2
In one sentence of her brief, Dr. Gurbani asserts that the meeting notes are “not
contemporaneous” and “shown to be edited” by the associate dean of graduate medical
education. The pages of the record extract that she cites in no way support that assertion.
8
month period of training[.]” Dr. LaPorte met with Dr. Gurbani for their semiannual
evaluation meeting on January 26, 2012, shortly before the end of the sports medicine
rotation.
According to Dr. LaPorte, their conversation was “based on all of [the] written
evaluations,” which she “had in front of [her]” during the meeting. Dr. LaPorte prepared
a memo titled “Resident Semi-Annual Evaluation,” which included quotations from those
evaluations. In her memo, Dr. LaPorte wrote that she informed Dr. Gurbani about
concerns that faculty members had expressed about her “technical skills and a lack of
progression in the operating room.” Dr. LaPorte wrote that they “discussed the critical
importance of making a true effort to improve her technical skills as well as her comfort
in the operating room and her knowledge base and to work on increasing her confidence
with good board presentations and ability to make decisions as appropriate.”
Dr. Gurbani did not receive a copy of that memo. She denies that Dr. LaPorte
expressed any concern about her progress or discussed any need for improvement.
According to Dr. Gurbani, Dr. LaPorte told her that she was “in the middle of [her] class”
based on her exam score, that she was “meeting all the core competencies,” and that her
performance was “completely acceptable” for her level of training. Dr. Gurbani claims
that Dr. LaPorte specifically told her “not to worry” about her low scores in the sports
medicine rotation because “Dr. Cosgarea had been known as a harsh evaluator.”
E. Evaluations from the Pediatric Orthopaedics Rotation
In February 2012, Dr. Gurbani advanced to the pediatric orthopaedics rotation.
The head of that division, Dr. Paul Sponseller, determined on his mid-rotation evaluation
9
that Dr. Gurbani was meeting expectations, but he commented that she had “some
challenges in prioritizing her work” and that “her motor skills [we]re not yet intuitive.”
In his end-rotation evaluation, Dr. Sponseller commented that Dr. Gurbani still needed
“to develop more confidence in her own decisions and skills,” but that she had “made
progress” in that direction. Dr. Sponseller observed that she was capable of adequate
preoperative planning and technically competent in surgical procedures about 40 percent
to 79 percent of the time. At his deposition, Dr. Sponseller explained that his evaluation
did not mean that she had failed the rotation outright, but that her scores in those
categories were “cause for concern.”
Two other faculty members, Dr. John Tis and Dr. Michael Ain, had less favorable
impressions of Dr. Gurbani’s performance on the pediatric orthopaedics rotation. They
submitted their formal evaluations within the academic year, but several weeks after the
rotation ended in mid-April 2012. Dr. Tis submitted a “mid-rotation” evaluation on May
11, 2012, in which he stated that Dr. Gurbani’s critical thinking and documentation skills
did not meet expectations. Dr. Tis commented that Dr. Gurbani had “[d]ocumented
incorrect exam results” and that she needed “to slow down and concentrate on what she is
doing.”3 In a final evaluation, submitted in June 2012, Dr. Tis gave her scores of 2 out of
5 or below in seven categories.
Dr. Ain submitted two evaluations in early June 2012. His “mid-rotation”
3
By the time of his deposition, several years later, Dr. Tis could not recall details
about the documentation error, but remembered that he considered her error to be “a red
flag.”
10
evaluation stated that Dr. Gurbani was not meeting expectations in any area. He
commented that she needed to improve her “responsibility,” “basic knowledge,”
“operative ability,” and “following up.” In his end-rotation evaluation, he gave Dr.
Gurbani scores of 1, 2, or 3 out of 5 in every category. He commented that he had
“talked to her on several occasions about the care that she gives” and that he had “offered
suggestions,” but Dr. Gurbani showed “no signs of improvement” and failed even to
“recognize that she gives truly poor care.”
In a memo from May 4, 2012, Dr. LaPorte recorded that, when she told Dr.
Gurbani that the pediatric orthopaedics faculty voiced concern “that she would frequently
miss important points in patient evaluation and patient care,” Dr. Gurbani responded by
claiming that “much of th[o]se issues were ‘misunderstandings’ and that it ‘was not truly
her fault.’” The memo also states that Dr. Gurbani complained that she “did not feel that
it was appropriate for Dr. Ain to evaluate her” because she had worked with him only
“occasionally on call.” Dr. Gurbani now maintains that she “actually never worked” with
Dr. Ain and that he evaluated her performance on the rotation “without ever directly
observing” her. She has not disputed that Dr. Tis observed her.
F. Orthopaedic Trauma Rotation with Dr. Osgood and Dr. Hasenboehler
By mid-April 2012, Dr. Gurbani had moved on to the orthopaedic trauma service
for the final rotation of the academic year. She worked primarily with Dr. Greg Osgood
and with Dr. Erik Hasenboehler, the two faculty members whom she would later name as
defendants in her lawsuit (alongside the program director, Dr. LaPorte).
Sometime around early May of 2012, Dr. Gurbani complained orally to Dr.
11
LaPorte about the way she was being treated on the trauma rotation. Dr. Gurbani claims
that she reported several instances of sexist or inappropriate behavior by the two
attending physicians. Dr. Gurbani does not remember exactly when she made particular
reports, except to say that she started complaining “very early” in the rotation and then
continued to make “many, many” complaints throughout the rotation.4
Dr. Gurbani says that Dr. Osgood displayed a calendar in the operating room that
featured the musical artist Taylor Swift in “provocative” poses. Dr. Gurbani says that
some music that Dr. Osgood played in the operating room was “obscene” because the
lyrics “basically allud[ed] to oral sex.” Dr. Gurbani says that Dr. Osgood repeatedly
made innuendo while discussing procedures involving male genitalia.5
Dr. Gurbani says that, once while she was present in a clinic, Dr. Hasenboehler
passed around a phone to other residents to show them photos of himself “taking body
shots” off of a female “stripper” at his birthday party. Dr. Gurbani also says that Dr.
Hasenboehler called her “a girl” and told her that she “had to work 350 times harder
because [she] was a female.” Although female colleagues sometimes told her that she
would need “to work twice as hard to be considered half as smart in [a] male dominated
4
In her brief, Dr. Gurbani asserts that she documented her complaints about the
conduct of Dr. Osgood and Dr. Hasenboehler “in contemporaneous notes.” She points to
nothing from the record that would support her assertion.
5
In his deposition, Dr. Osgood admitted that he displayed a Taylor Swift calendar
but he denied that it was “suggestive.” Dr. Osgood admitted that he sometimes selected
music in the operating room, but said that he would always change the selection
whenever anyone asked him to do so. He also admitted that in “rare moment[s],” he
would “say something with innuendo” but that was “about as far” as he would go.
12
field[,]” Dr. Gurbani felt that Dr. Hasenboehler’s comment was inappropriate in light of
his other behavior.
Both Dr. LaPorte’s memos and a “timeline” produced by Dr. Gurbani, show that
their first meeting during the rotation occurred on May 4, 2012.6 Dr. LaPorte’s memo
states that, “[p]rior to [the] meeting,” she had already “spoken with Dr. Osgood and Dr.
Hasenboehler, both of whom had some concerns regarding [Dr. Gurbani’s] ability to
evaluate patients and make decisions.” The memo mentions that Dr. Gurbani complained
about Dr. Ain’s evaluations and about her conflicts with the senior resident from the
orthopaedic trauma service, but it does not mention that Dr. Gurbani complained about
either of the two attending physicians.
According to Dr. LaPorte’s testimony, Dr. Gurbani did not report instances of
“misconduct” at the meeting on May 4, 2012, but she expressed a more general belief
that she was being treated “unfairly” or “differently” from other residents. Dr. LaPorte
says that she investigated the situation by speaking to the senior resident, who opined that
Dr. Gurbani was being treated like any other junior resident. Dr. LaPorte says that she
also sought more information from Dr. Osgood, who explained that he had been limiting
Dr. Gurbani’s time in the operating room so that she could focus on improving her basic
knowledge of patients and diagnoses.
According to Dr. Osgood’s testimony, he was not aware during the rotation that
Dr. Gurbani’s timeline shows that she requested a meeting on April 20, 2012, but
6
Dr. LaPorte was unavailable at the time. Her timeline also shows that she interacted with
Dr. LaPorte on April 29, 2012, but “no issues[] were brought up” at that time.
13
Dr. Gurbani had made allegations about mistreatment. Similarly, there is no evidence
indicating that Dr. Hasenboehler was made aware of complaints against him at that time.
At some point during the rotation, an operating room nurse independently reported
to Dr. LaPorte that “Dr. Gurbani had a rough day in the OR and the trauma faculty were
tough on her.” Dr. LaPorte says that, in response, she “tried to reassure [Dr. Gurbani]
and tell her to hang in there.” Around this time, other colleagues reported that Dr.
Osgood would have occasional outbursts of anger in the operating room. Those reports
prompted the chair of the orthopaedic surgery department to warn Dr. Osgood in the
summer of 2012 that he needed to improve his self-control.
G. The Decision to Place Dr. Gurbani on Academic Probation
The faculty met on May 24, 2012, to evaluate Dr. Gurbani’s progress as she
approached the end of the academic year. The memo for that meeting states that eight
doctors expressed concerns about Dr. Gurbani’s performance: Dr. Osgood noted that she
“frequently w[ould] miss a diagnosis” and did not “see the gravity of missing important
points in patient care,” and he had not observed “any improvement” after he tried to give
her time to “focus on the basics” outside the operating room; Dr. Hasenboehler, Dr. Ain,
and Dr. Cosgarea each expressed doubts about whether she could complete the residency
program; two other doctors expressed disappointment with her contributions to a research
proposal; another doctor reported instances of her poor communication in the pediatric
emergency department; and another doctor reported that she had missed a diagnosis of
14
“pediatric compartment syndrome.”7 Dr. LaPorte concluded: “If she does not wish to
consider changing specialties and does not show improvement during the trauma rotation,
I will likely need to put her on probation.”
One week later, Dr. LaPorte informed Dr. Gurbani that the faculty had serious
concerns about her future in the program and asked her to consider another specialty. At
their next meeting, another week later, Dr. LaPorte presented two options. The first
option was to resign, which Dr. Gurbani refused to do. The second option was to repeat
another year at the second-year postgraduate level, beginning with a four-month
probation period, after which the faculty would decide whether she could continue in the
program. In her memo, Dr. LaPorte wrote: “She does understand that when she leaves
the office today I will be officially putting her on probation.”
Dr. Gurbani claims that, during that meeting, she requested an “appeal or some
type of formal grievance” regarding her probation.8 Dr. LaPorte told Dr. Gurbani that
she could seek an “informal appeal” by asking the attending physicians to reconsider
their evaluations. Dr. Gurbani says that she “tried to reach” Dr. Osgood and Dr.
Hasenboehler, but that they did not respond.
In that process, Dr. Gurbani communicated with Dr. Tis, who had given her poor
7
In his deposition, the doctor could not recall details about that incident. He
explained that a compartment syndrome is a “true pediatric emergenc[y]” because the
failure to diagnose it could result in “loss of a limb.”
8
The University’s policy documents appear to use the term “appeal” to include
both an informal request for faculty members to reconsider a decision and a formal
grievance heard by an appointed panel.
15
evaluations from the earlier rotation in pediatric orthopaedics. Dr. Tis emailed Dr.
LaPorte to explain that he had an “extensive discussion” with Dr. Gurbani about “her
lack of progression in the program.” Dr. Tis wrote that she “seems to have some
difficulty realizing what her shortcomings are, specifically difficulty applying basic
knowledge to clinical situations such as assessment of the patient, initiation of basic
orthopaedic care in the [emergency department], and communication of this assessment
with her seniors.” Although Dr. Gurbani received a copy of the email, she claims that Dr.
Tis never spoke with her about any of her shortcomings.
Dr. LaPorte informed Dr. Gurbani that she could challenge the probation decision
through Dr. Julia McMillan, the associate dean of graduate medical education.
According to Dr. Gurbani, Dr. McMillan told her “that [Dr. Gurbani’s] department was
refusing [her] the ability to appeal” the probation decision.9
On June 14, 2012, Dr. Gurbani learned that Dr. LaPorte had announced in front of
the entire residency class that she had been placed on academic probation. Dr. Gurbani
asserts that this announcement violated the University’s records-retention policy, which
states that a resident’s “Evaluative File is confidential and will be kept in a secure
location.”
As Dr. Gurbani completed the final weeks of the orthopaedic trauma rotation, Dr.
Osgood had not yet submitted either of his written evaluations. On or after June 15,
9
Although her deposition testimony was vague, Dr. Gurbani appears to claim that
she reported to Dr. McMillan the same allegations of misconduct by the trauma faculty
that she says she had been making to Dr. LaPorte. Dr. McMillan testified that she was
not aware of those allegations at that time.
16
2012, Dr. Osgood asked Dr. Gurbani to meet him at a bar for an evaluation meeting. Dr.
Gurbani did not agree to do so. She told Dr. LaPorte that Dr. Osgood’s suggestion made
her feel uncomfortable.
On June 27, 2012, Dr. Gurbani received a letter from Dr. LaPorte outlining the
“guidelines and expectations” for her probation. The letter informed Dr. Gurbani that she
would spend another two months on the pediatric orthopaedic service, followed by
another two months on the orthopaedic trauma service. The letter stated that she would
meet every week for “formal verbal feedback” from at least one attending physician, that
she would confer with Dr. LaPorte every two weeks, and that she would receive “written
feedback” every two to four weeks. A five-member committee (Dr. LaPorte; Dr.
Sponseller and Dr. Ain from pediatric orthopaedics; Dr. Osgood from orthopaedic
trauma; and another attending physician from a previous rotation) would evaluate her
progress after two months. After the full four months, the committee would decide
whether to promote her, to allow her to continue at the second-year postgraduate level, or
to dismiss her from the program. The letter included an extensive list of deficiencies and
performance criteria.
On July 1, 2012, Dr. Gurbani signed a new residency contract under which she
was reappointed at the second-year postgraduate level, but not promoted to the third-year
level. The contract stated that it would be in effect for a maximum of 12 months,
expiring at the end of June 2013. The terms generally were similar to those of the first
contract, although some terms and policy documents had been updated.
17
H. Probation and the Committee’s Decision to Dismiss Dr. Gurbani
Dr. Gurbani repeated the pediatric orthopaedics rotation in July and August of
2012. On his evaluations, Dr. Sponseller reported improvement in some areas, but
continued to identify weaknesses in her technical surgical skills, particularly her motor
skills. Dr. Ain submitted an evaluation that, while more favorable than his previous ones,
reflected that Dr. Gurbani continued to fall below his expectations for critical thinking
and patient presentation skills.
During this rotation, Dr. Sponseller reported that Dr. Gurbani caused a “dural
tear”10 in what should have been a “routine” procedure. At his deposition, Dr. Sponseller
explained that he remembers the incident “clearly because it was so remarkable” in how
it “deviated from standard practice and from what [he] would expect and trust in a
resident.” Dr. Sponseller explained that he and Dr. Gurbani were standing on opposite
sides of the patient while he was “giving her a chance to expose the spine to demonstrate
her surgical skills.” He recalled that, “very early on in the procedure,” they were “taking
the muscles off the spine” when he suddenly “saw spinal fluid coming out on her side”
even though there was “a pretty strong barrier between where she was working and the
spinal dura.” According to Dr. Sponseller, surgeons sometimes cause tears “when
they’re working around the dura,” but it was the “first time” he had seen someone cause a
dural tear while working “several levels above the dura.” Although he was able to repair
10
A “dural tear” is a tear in the dura or dura mater, “the tough fibrous membrane
that envelops the brain and spinal cord[.]” Dura Mater, MERRIAM-WEBSTER
DICTIONARY ONLINE, https://www.merriam-webster.com/dictionary/dura%20mater.
18
the tear without complication, the incident indicated to him that Dr. Gurbani was “not
aware of how to use [her] hands” and did not “have a good sense of surgical skill and
timing.” Dr. Gurbani admits that she was present during that procedure, but professes not
to believe that she caused the dural tear.
Midway through the probation period, Dr. LaPorte consulted with Dr. Sponseller
and Dr. Ain, but did not convene the entire probation committee. Afterwards, Dr.
LaPorte and Dr. Sponseller met with Dr. Gurbani to discuss her progress and to advise
her about the upcoming rotation. On behalf of the pediatric orthopaedics faculty, Dr.
Sponseller emailed Dr. Osgood and Dr. Hasenboehler to say that they believed that Dr.
Gurbani was “much improved” and “on track to be a good [second-year resident,]” but
that she “still need[ed] more work with her hands/motor skills” and “still lack[ed] a little
confidence and common sense in planning and decision making.”11
At the time that Dr. Gurbani started her second attempt at the orthopaedic trauma
rotation, Dr. Osgood belatedly submitted his evaluations from her first attempt earlier in
the year. Dr. Osgood identified weaknesses in Dr. Gurbani’s “knowledge of anatomy”
and noted that she had “obvious difficulties” in “handling tools and using them
effectively in surgery.” He commented that he had observed some “incremental
improvement” with some motor skills by the end of the rotation but that she “did not
improve significantly in the ways [they] discussed were most important for progress and
11
Over a month after the second rotation in pediatric orthopaedics, Dr. Tis
submitted an evaluation more favorable than his prior ones. Dr. Tis observed that Dr.
Gurbani was “[w]orking extremely hard[,]” and he opined that “[i]f she continue[d]” to
do so, he had “no doubt that she w[ould] be a safe, reliable surgeon.”
19
advancement as an orthopaedic surgeon.” Dr. Osgood opined that she “did not seem to
take [his] comments seriously” and that she “interprets critique of her work as a personal
affront[.]”
Although the probation letter stated that Dr. Gurbani would receive formal verbal
feedback every week, neither Dr. Osgood nor Dr. Hasenboehler met with her for
feedback sessions outside of their clinical interactions. They nevertheless continued to
convey their impressions to Dr. LaPorte, who continued to meet regularly with Dr.
Gurbani. After two weeks, Dr. Gurbani complained to Dr. LaPorte that she was
frustrated about the lack of formal feedback. A week later, Dr. Osgood did meet her for
one feedback session, in the cafeteria.
Dr. Gurbani continued to complain to Dr. LaPorte that the members of the trauma
faculty were not allowing her to operate as frequently as she had during previous
rotations. She complained that she felt that she was “being judged differently from other
residents” on the trauma service. Dr. Gurbani says that, at these meetings, she
complained that she felt that she was “being bullied” by Dr. Osgood and Dr.
Hasenboehler, in that they would “yell” at her apparently with little justification or use
“language and tone” that seemed “disrespectful” to her. In her memos, Dr. LaPorte wrote
that Dr. Gurbani believed that she had “not been well received” by her two attending
physicians or the senior resident and that “the team dynamic [was] dysfunctional.”
The committee met on October 11, 2012, ten days before the scheduled end of the
probation period. The meeting memo states that Dr. Sponseller, Dr. Ain, Dr. Osgood,
and Dr. Hasenboehler each identified a different combination of deficiencies in her
20
medical knowledge, motor skills, decision-making, communication skills, and
professionalism. The “majority opinion” was that she was “not likely to progress to a
point where she would be able to practice safely and independently without supervision.”
The committee concluded that there was “no reason to expect . . . a significant change in
her performance” after she had been unable to do so after “four months where she had
been working at maximum effort.” The committee immediately informed Dr. Gurbani of
its decision to dismiss her from the program.
Dr. Osgood and Dr. Hasenboehler did not submit written evaluations of Dr.
Gurbani’s performance on her second orthopaedic trauma rotation until over a month
after her dismissal from the program. Although they highlighted different details, both of
them described deficiencies in her knowledge and technical skills as a surgeon.
Dr. Gurbani appealed the committee’s termination decision to the chair of the
orthopaedic surgery department, who upheld the decision after meeting with her and
reviewing her evaluations.
I. Dr. Gurbani’s Pursuit of Reinstatement in the Program
After her dismissal from the residency program, Dr. Gurbani explored the
possibility of pursuing other medical specialties at Johns Hopkins. While looking into
Dr. Gurbani’s background, a professor from another department discovered that she had
made false statements to the Board of Physicians by failing to disclose the prior probation
from her residency at the University of Pennsylvania. Dr. LaPorte and Dr. McMillan
then told Dr. Gurbani that they were aware of her false statements to the Board of
Physicians.
21
Soon thereafter, Dr. Gurbani wrote a letter to the Board of Physicians to report
what she called an “error” on her registration forms. Dr. Gurbani wrote that she could
“only assume” either that she was not “sufficiently careful in filling out” the forms or that
she “did not realize that th[e] question” on the forms “included the type of probation
[she] had been on at the University of Pennsylvania.” Contrary to that explanation, Dr.
Gurbani now claims that she was “following Dr. LaPorte’s advice” when she made false
statements to the Board of Physicians.
Dr. Gurbani continued to receive salary and benefits until her contract term
expired at the end of June 2013. None of the other departments at Johns Hopkins offered
her the opportunity to transfer.
In August 2013, Dr. Gurbani initiated a formal grievance under the University’s
procedures. She wrote to the chair of the grievance panel accusing Dr. Osgood, Dr.
Hasenboehler, Dr. LaPorte, and Dr. McMillan of violating University and ACGME
policies.12 She sought to be reinstated in the residency program, without being required
to work with Dr. Osgood or Dr. Hasenboehler in the future.
Dr. LaPorte and Dr. McMillan submitted to the grievance panel the various
evaluations, memos, and emails that documented the process that culminated in the
dismissal. Dr. Gurbani responded with a point-by-point rebuttal in which she denied
12
Dr. Gurbani incorrectly asserts that the University allowed Dr. McMillan “to
handpick” the panel chair even though she had filed a grievance against Dr. McMillan.
There is no evidence that she had named Dr. McMillan as a subject of her grievance until
her August 2013 letter, which was addressed to the panel chair who had already been
selected.
22
responsibility for nearly every reported instance of inadequate performance (such as the
dural tear or the missed diagnosis of compartment syndrome).
In accordance with the University’s procedures, the panel chair attempted to
resolve the grievance through informal discussions until those efforts failed.13 Over a
multi-month period, the grievance panel conducted interviews with Dr. Gurbani, the four
doctors who were the subject of her grievance, and other faculty members.
On March 11, 2014, the grievance panel issued a comprehensive report
recommending that Dr. Gurbani not be reinstated in the program. The panel noted that,
despite some of her strengths as a physician, faculty members observed that her
“technical skills” fell below expectations, that she “was not able to apply book
knowledge to the synthesis of diagnoses,” and that she had other “deficiencies in clinical
documentation and lapses in professionalism and communication with patients and staff.”
The panel opined that she “should have received more regular written feedback, in
addition to the notes in the [computerized evaluation] system, during her first year and
more frequent formal and written feedback during her probationary trauma rotation.”
Overall, however, the panel found that she “received adequate verbal communication
about the program’s expectations and the deficiencies in her performance, and notice of
the changes in her status, and that she was given ample opportunities for training and
remediation.” The panel rejected her allegations that she had been “denied fair treatment,
13
The director of the orthopaedic surgery department rejected a compromise that
would have allowed Dr. Gurbani to return as a second-year postgraduate resident, citing
her “difficulties” in the program and her “misrepresentation of fact in a signed statement
to the Maryland Board of Physicians, on two occasions.”
23
the opportunity to file a grievance, or due process.” The panel “did not find that the
department acted in an arbitrary or capricious manner[,]” but instead found that the
department had “exercised reasonable judgment” in deciding to dismiss her.14
On March 31, 2014, the dean of the medical faculty informed Dr. Gurbani that he
had accepted the panel’s unanimous recommendation not to reinstate her in the program.
In the aftermath of her dismissal, Dr. Gurbani applied to other residency programs
with the goal of continuing her training as an orthopaedic surgeon. By the middle of
2015, she secured an appointment at the third-year postgraduate level in an orthopaedic
surgery residency program at the University of Texas.
J. Dr. Gurbani’s Action against the University and Its Employees
On June 5, 2015, Dr. Gurbani filed a four-count complaint in the Circuit Court for
Baltimore City. She claimed that her dismissal from the residency program caused
“irreparable damage to her career” through the “severe interruption of her training” and
the “indelible black mark” on her record. She sought to recover past and future income,
other consequential damages, punitive damages, and attorneys’ fees.
In Count I of her complaint, Dr. Gurbani alleged that Johns Hopkins University15
14
The panel explained that it was unpersuaded by Dr. Gurbani’s rebuttal, writing:
“in her long and detailed list of objections to evaluation scores and patient care critiques,
Dr. Gurbani exhibits a pattern of unwillingness to assume personal responsibility for
errors and a tendency to deflect criticisms of her shortcomings.” The panel also noted
that she “frequently responded to [feedback] in ways that were counter-productive” and
that she “did not seem to truly understand or learn from the continuing constructive
verbal feedback and criticism given to her by a number of faculty and [senior] residents.”
15
The complaint named four entities as defendants: Johns Hopkins Health System
Corp.; Johns Hopkins Hospital, Inc.; Johns Hopkins Medicine; and Johns Hopkins
24
breached the 2011 and 2012 residency contracts through various acts. The list of alleged
breaches included: “falsely evaluating her performance,” refusing to promote her, placing
her on probation, “denying her an opportunity to appeal the probation,” “violating the
probation terms,” ending the probation prematurely, terminating her appointment,
allowing “excessive delay” before hearing the grievance, and “presenting false and
manufactured evidence” to the grievance panel.
In Count II, she alleged that, through those same acts, the University had violated
the implied covenants of good faith and fair dealing from both contracts.
The third count, styled as “Tortious Interference,” named Dr. LaPorte, Dr.
Osgood, and Dr. Hasenboehler as defendants. Dr. Gurbani alleged that those three
defendants interfered with her contracts by “withholding feedback” and “falsifying
information” about her performance with the intent to cause her to be terminated.
Although her complaint identified those defendants as “contract employees” of Johns
Hopkins, she alleged that their “acts were not part of [their] official job duties.”
In the final count, Dr. Gurbani alleged that the University was negligent in
retaining and supervising Dr. Osgood and Dr. Hasenboehler when it knew or should have
known that those two employees were deliberately trying to cause her to be terminated.
All defendants jointly moved for summary judgment at the end of the lengthy
University. This opinion treats those defendants collectively as Johns Hopkins
University, the party identified in the residency contracts. The legal arguments raised
here are identical as to all four of those defendants.
25
discovery period. The circuit court received exhaustive briefing16 and conducted a two-
hour hearing. In an order entered on September 29, 2016, the court granted the
defendants’ motion as to all counts. The court issued no separate opinion, but it stated
the grounds for summary judgment in its order.
The circuit court determined that the claims against the University could not
proceed in light of Hunter v. Board of Education of Montgomery County, 292 Md. 481
(1982). The court observed that, in Hunter, the Court of Appeals established a policy of
“declining to entertain . . . educational negligence and breach of contract actions” (id. at
490) based on an allegation that an educator improperly evaluated a student. On that
basis, the circuit court concluded that the University was entitled to judgment as to the
counts for breach of contract, breach of implied covenant of good faith and fair dealing,
and negligent retention and supervision.
The circuit court concluded that the three University employees (Dr. Osgood, Dr.
Hasenboehler, and Dr. LaPorte) were entitled to judgment on the remaining count for
tortious interference with contract. The court explained that a party cannot interfere with
its own contract and that “employees acting on behalf of an employer within the scope of
their authority are not viewed as separate actors from their employers.”
Dr. Gurbani noted a timely appeal from the judgment.
16
The defendants submitted a 50-page memorandum, supported by 64 exhibits.
Dr. Gurbani responded with a 122-page memorandum in opposition to the motion for
summary judgment, supported by 138 exhibits. The defendants replied with a 45-page
memorandum, supported by another 36 exhibits. The court then granted Dr. Gurbani’s
motion to submit another 18 exhibits for consideration.
26
DISCUSSION
Dr. Gurbani’s appellate brief poses eight interrelated questions, which we have
reproduced in the appendix to this opinion. In substance, she challenges the correctness
of the grant of summary judgment as to all counts.
Under Maryland Rule 2-501(f), the circuit court shall grant a motion for summary
judgment “if the motion and response show that there is no genuine dispute as to any
material fact and that the party in whose favor judgment is entered is entitled to judgment
as a matter of law.” The question of whether a circuit court correctly granted summary
judgment “is a question of law . . . ‘subject to a non-deferential review on appeal.’”
Schneider Elec. Bldgs. Critical Sys., Inc. v. Western Sur. Co., 454 Md. 698, 705 (2017)
(quoting Tyler v. City of College Park, 415 Md. 475, 498 (2010)).
On an appeal from a grant of summary judgment, the appellate court “examine[s]
‘the same information from the record and determine[s] the same issues of law as the trial
court.’” La Belle Epoque, LLC v. Old Europe Antique Manor, LLC, 406 Md. 194, 209
(2008) (quoting Miller v. Bay City Prop. Owners Ass’n, Inc., 393 Md. 620, 632 (2006)).
The court must view the facts “‘in the light most favorable to the nonmoving party and
construe any reasonable inferences that may be drawn from the facts against the moving
party.’” Windesheim v. Larocca, 443 Md. 312, 326 (2015) (quoting Myers v. Kayhoe,
391 Md. 188, 203 (2006)). The appellate court independently determines whether a
genuine dispute of material fact exists and, if not, whether the moving party was entitled
to judgment as a matter of law. Kiriakos v. Phillips, 448 Md. 440, 455 (2016).
In her brief, Dr. Gurbani emphasizes that there are countless factual disputes
27
within the thousands of pages of materials that the parties submitted to the circuit court.
Most notably, her firsthand accounts of her experiences in the residency program conflict
with the testimony and reports from the faculty and administrators. Because a court may
not weigh the credibility of witnesses at the summary judgment stage, our analysis begins
by assuming that a trier of fact could credit Dr. Gurbani’s testimony about her
interactions with University employees. See, e.g., Rowhouses, Inc. v. Smith, 446 Md.
611, 662-63 (2016) (explaining that, at the summary judgment stage, a court cannot
determine that a witness is not credible even where the witness’s testimony “may be
perceived as ‘self-serving’”); Okwa v. Harper, 360 Md. 161, 182 (2000) (explaining that
the summary judgment rule does not allow the court to “give credence to certain facts and
refuse to credit others” where witnesses give different versions of events).
But merely generating factual disputes will not necessarily defeat a properly
supported summary judgment motion. Appiah v. Hall, 416 Md. 533, 546 (2010).
“Rather, the crux of the inquiry is whether the disputed fact is material, or, ‘a fact the
resolution of which will somehow affect the outcome of the case.’” Deutsche Bank Nat’l
Tr. Co. v. Brock, 430 Md. 714, 727 (2013) (quoting Lippert v. Jung, 366 Md. 221, 227
(2001)). “A ‘dispute as to facts relating to grounds upon which the decision is not rested
. . . does not prevent the entry of summary judgment.’” Boland v. Boland, 423 Md. 296,
366 (2011) (quoting Salisbury Beauty Sch. v. State Bd. of Cosmetologists, 268 Md. 32, 40
(1973)).
The party opposing a summary judgment motion must “identify with particularity”
each factual dispute and must “identify and attach” the supporting evidentiary materials.
28
Md. Rule 2-501(b). Accordingly, “mere general allegations or conclusory assertions
which do not show facts in detail and with precision will not suffice to overcome a
motion for summary judgment.” Educ. Testing Serv. v. Hildebrant, 399 Md. 128, 139
(2007). As the circuit court observed: “A plaintiff’s claim must be supported by more
than a ‘scintilla of evidence[,]’ as ‘there must be evidence upon which [a] jury could
reasonably find for the plaintiff.’” Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 108
(2014) (quoting Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738-39 (1993)).
Where the moving party attests to a material fact, the non-moving party must do
more than simply show some “conjectural” or “metaphysical” doubt as to that fact. See
Windesheim v. Larocca, 443 Md. at 329-30 (citations and quotation marks omitted).
“The facts offered by a party opposing summary judgment ‘must be material and of a
substantial nature, not fanciful, frivolous, gauzy, spurious, irrelevant, gossamer
inferences, conjectural, speculative, nor merely suspicions.’” Id. at 330 (emphasis in
Windesheim v. Larocca) (quoting Carter v. Aramark Sports & Entm’t Servs., Inc., 153
Md. App. 210, 225 (2003)).
I. Claims against the University for Breach of Contract and Negligence
A. Challenge to the Substance of the Dismissal Decision
The circuit court identified Hunter v. Board of Education of Montgomery County,
292 Md. 481 (1982), as the ground for summary judgment as to the claims against the
University for breach of contract and negligence. In Hunter, the Court of Appeals
refused to “recognize a tort action seeking damages based on negligent education.”
Tabor v. Balt. City Pub. Sch., 138 Md. App. 747, 751 (2001). Under Hunter, a plaintiff
29
cannot recover damages “for error in evaluation for purposes of educational placement,”
regardless of how the plaintiff’s claim might be characterized. Doe v. Bd. of Educ. of
Montgomery Cnty., 295 Md. 67, 78-79 (1982).
Specifically, the Hunter opinion addresses whether an action “can be successfully
asserted against a school board and various individual employees for improperly
evaluating, placing or teaching a student.” Hunter v. Bd. of Educ. of Montgomery Cnty.,
292 Md. at 483. A trial court concluded that the Hunters, two parents suing on behalf of
their minor child, could not maintain such an action. Id.
The Hunters alleged that their child developed learning deficiencies because the
local school system negligently evaluated his abilities and required him to repeat first-
grade materials while he was physically placed in the second grade. Id. at 483-84.
Although they raised multiple theories for the source of an alleged duty, the “gravamen”
of their claim “sound[ed] in negligence, asserting [a right to] damages for the alleged
failure of the school system to properly educate” the child. Id. at 484.
Citing an extensive body of out-of-state authority, the Court of Appeals observed
that “so-called ‘educational malpractice’ claims” had been “unanimously rejected” in
other jurisdictions based on “considerations of public policy[.]” Id. (collecting
authorities). The Court identified three main considerations underlying those decisions:
(1) “the absence of a workable rule of care against which the defendant’s conduct may be
measured”; (2) “the inherent uncertainty in determining the cause and nature of any
damages”; and (3) “the extreme burden which would be imposed on the already strained
resources of the public school system to say nothing of those of the judiciary.” Id.
30
Upon review of those cases, the Court concluded that “an award of money
damages . . . represents a singularly inappropriate remedy for asserted errors in the
educational process.” Id. at 487. The Court emphasized that the “misgivings” other
courts had expressed about “the establishment of legal cause and the inherent
immeasurability of damages” in an educational negligence action “are indeed well
founded.” Id. at 487-88. The Court reasoned that the recognition of such an action
“would in effect position the courts of this State as overseers of both the day-to-day
operation of our educational process as well as the formulation of its governing policies.”
Id. at 488. The Court was reluctant to impose such a responsibility on the courts. Id.
In addition to their negligence claims, the Hunters had alleged a “breach of an
‘implied contract’” in one count of their complaint. Id. at 489 n.5. The Court concluded
that the defendants were entitled to dismissal “[w]ith respect to the contract claim” as
well, explaining: “[W]hat we have said in this opinion concerning the uncertainty of
damages, the difficulty in determining legal cause, and the public policy factors
precluding negligence claims remains true whether the allegations state breach of
contract or tort and we discuss it no further.” Id.
Here, Dr. Gurbani points out many ways in which her claims against Johns
Hopkins University differ from the Hunters’ claims against the county board of
education. Obviously, Dr. Gurbani was not a minor child enrolled in a public school
administered by State and local agencies. She was an adult physician employed under a
contract with a private university as part of a program accredited by a national non-profit
organization. She contends that Hunter should “have no applicability” to a resident’s
31
claim “for breach of an express contract with a private medical institution.” She further
contends that her claims do not implicate the same policy concerns identified in Hunter.
Her adversaries agree that the factual context here is different from that of Hunter, but
they argue that the “public policy reasons that underlie Hunter are even more compelling
in the case of a private medical school.”
Even as Dr. Gurbani encourages this Court to confine Hunter to its own factual
context, she appears to recognize that Hunter is only a single example of a broader body
of case law that overwhelmingly favors judicial deference to academic decisions at all
levels of education. Other courts agree that “the policy concerns that preclude a cause of
action for educational malpractice apply with equal force to bar a breach of contract
claim attacking the general quality of an education.” Ross v. Creighton Univ., 957 F.2d
410, 416 (7th Cir. 1992) (citing Hunter v. Bd. of Educ. of Montgomery Cnty., 292 Md. at
586 n.5, and other cases). Courts have opined that “the ‘rule of judicial nonintervention
in academic affairs is particularly appropriate in the health care field . . . because a
medical school must be the judge of the qualifications of its students to be granted a
degree; courts are not supposed to be learned in medicine and are not qualified to pass
opinion as to the attainments of a student in medicine.’” Burke v. Emory Univ., 338
S.E.2d 500, 501 (Ga. Ct. App. 1985) (alteration in original) (further quotation marks
omitted) (quoting Jansen v. Emory Univ., 440 F. Supp. 1060, 1063 (N.D. Ga. 1977),
aff’d, 579 F.2d 45 (5th Cir. 1978) (per curiam)). “These considerations are particularly
apt where the institution involved is a private college or university.” Alden v.
Georgetown Univ., 734 A.2d 1103, 1110 n.9 (D.C. 1999) (citing Bilut v. Northwestern
32
Univ., 645 N.E.2d 536, 541 (Ill. App. Ct. 1994)); see also Burke v. Emory Univ., 338
S.E.2d at 501-02.17
The United States Supreme Court endorsed this deferential approach in two cases
in which it rebuffed efforts by former students to challenge their dismissals from medical
degree programs at state universities. In Board of Curators of University of Missouri v.
Horowitz, 435 U.S. 78, 90 (1978), the Court held that a state university does not deny a
student due process when it dismisses the student for academic reasons without affording
a hearing. The Court reasoned that “the determination whether to dismiss a student for
academic reasons requires an expert evaluation of cumulative information and is not
readily adapted to the procedural tools of judicial or administrative decisionmaking.” Id.
at 90. In the Court’s view, “[a] graduate or professional school is, after all, the best judge
of its students’ academic performance and their ability to master the required
curriculum.” Id. at 85 n.2.
Likewise, in Regents of University of Michigan v. Ewing, 474 U.S. 214 (1985), the
17
Dr. Gurbani has cited a handful of idiosyncratic cases in which a student
survived a dispositive motion in a suit against an educational institution. Only a few of
the cases she cites are reported cases that involve academic dismissals. Those cases fail
to establish that courts have stronger reasons to oversee academic decisions simply
because the institution has a contract with the student or is a private medical school. At
most, those cases illustrate that in some circumstances a contract itself may limit an
educational institution’s discretion to summarily dismiss a student. E.g. Pieszak v.
Glendale Adventist Med. Ctr., 112 F. Supp. 2d 970, 998 (C.D. Cal. 2000) (contract
entitled medical resident to a hearing before termination from residency program);
Jabbour v. Albany Med. Ctr., 237 A.D.2d 787, 788-89 (N.Y. App. Div. 1997) (contract
required that medical center could terminate resident only for “good cause”); Univ. of
Texas Health Sci. Ctr. at Houston v. Babb, 646 S.W.2d 502, 506 (Tex. App. 1982)
(contract did not permit school to dismiss student nurse as long as she completed
requirements in six years and maintained a 2.0 grade point average).
33
Supreme Court declared: “When judges are asked to review the substance of a genuinely
academic decision, . . . they should show great respect for the faculty’s professional
judgment.” Id. at 225. “Plainly,” the Court said, judges “may not override [an academic
decision] unless it is such a substantial departure from accepted academic norms as to
demonstrate that the person or committee responsible did not actually exercise
professional judgment.” Id. The Court added: “‘University faculties must have the
widest range of discretion in making judgments as to the academic performance of
students and their entitlement to promotion or graduation.’” Id. at 225 n.11 (quoting Bd.
of Curators of Univ. of Missouri v. Horowitz, 435 U.S. at 96 n.6 (Powell, J., concurring)).
The decision to dismiss a medical student because of unsatisfactory clinical
evaluations is a well-recognized example of an academic decision. In the Horowitz case,
the medical student had been placed on probation after several faculty members
expressed dissatisfaction with her performance and dismissed after the faculty observed
insufficient improvement during the probation period. Bd. of Curators of Univ. of
Missouri v. Horowitz, 435 U.S. at 81-82. The Court characterized the dismissal as
“academic” because it rested on the “judgment of school officials that [the student] did
not have the necessary clinical ability to perform adequately as a medical doctor and was
making insufficient progress toward that goal.” Id. at 89-90. In a concurring opinion,
Justice Powell explained that an evaluation of the medical student’s clinical performance
was “no less an ‘academic’ judgment because it involves observation of her skills and
techniques in actual conditions of practice, rather than assigning a grade to her written
answers on an essay question.” Id. at 95 (Powell, J., concurring).
34
Dr. Gurbani nevertheless insists that “academic deference is not appropriate in the
context of a private, medical residency program” governed by a written contract. She
tells us that it is “simply incorrect” for the University to “argue that ‘court[s] have long
held that the decision to terminate a medical resident is an academic decision.’” Her
assertions lack merit. See Fenje v. Feld, 398 F.3d 620, 625 (7th Cir. 2005) (treating
decision to dismiss medical resident as an academic decision); Shaboon v. Duncan, 252
F.3d 722, 731 (5th Cir. 2001) (same); Davis v. Mann, 882 F.2d 967, 974 (5th Cir. 1989)
(same); Gupta v. New Britain Gen. Hosp., 687 A.2d 111, 117-18 (Conn. 1996) (same);
Ross v. Univ. of Minnesota, 439 N.W.2d 28, 33 (Minn. Ct. App. 1989) (same);
Hernandez v. Overlook Hosp., 692 A.2d 971, 975 (N.J. 1997) (same); Abdullah v. State,
771 N.W.2d 246, 255 (N.D. 2009) (same); Gul v. Ctr. for Family Med., 762 N.W.2d 629,
635-36 (S.D. 2009) (same).
Even in her own brief, Dr. Gurbani calls attention to Gupta v. New Britain
General Hospital, 687 A.2d 111 (Conn. 1996), a case in which a court determined that a
physician’s dismissal from a private medical residency program was properly grounded
in academic reasons. The facts of that case will sound familiar to any reader of this
opinion. The plaintiff was a physician who transferred into a five-year general surgical
residency program. Id. at 576-77. He entered into a one-year contract that could be
renewed as long as he received favorable evaluations. Id. at 577-78. As he progressed
through more advanced stages of the program, faculty members began to express doubt
about whether he could improve enough to complete his residency. Id. at 578. The
hospital continued to renew his contract, but decided to place him on probation and
35
ultimately dismissed him during the probation period because of his “inability to make
decisions in the operating room, his unwillingness to accept responsibility for errors, and
gaps in [his] ‘knowledge base.’” Id. at 579. A committee upheld the dismissal when the
physician challenged the decision internally. Id. at 579-80.
The physician sued the hospital, alleging breach of the residency agreement and of
the implied covenant of good faith and fair dealing. Id. at 580. The trial court granted
summary judgment in favor of the hospital, concluding that the decision to dismiss the
resident was entitled to deference as an academic decision. Id. at 580-81. On review, the
Supreme Court of Connecticut recognized that “the residency agreement created a hybrid
relationship containing both employment and educational features.” Id. at 586. Yet the
Connecticut high court explained that the dismissal, based on the unfavorable
assessments of the resident’s potential to become a safe and independent surgeon,
“implicated the educational component of the residency agreement and was, therefore, an
academic decision.” Id. at 589.
We see no reason (and Dr. Gurbani supplies none) to reach a different conclusion
regarding her dismissal, which was expressly based on the committee’s assessment that
she was “not likely to progress to a point where she would be able to practice safely and
independently without supervision.” That academic decision, the result of a careful and
deliberate exercise of professional judgment, is entitled to deference. It may not serve as
a basis for Dr. Gurbani’s claims for breach of contract or negligence.
Although Dr. Gurbani tells us that her breach-of-contract claim does not implicate
the faculty’s exercise of professional judgment, her submissions show the opposite.
36
Many factual assertions in her complaint, her memorandum in opposition to summary
judgment, and her appellate brief invite the court to make its own judgment about
whether she “performed at a satisfactory level” as she claims, and thus whether she
deserved promotion. She calls into question the events that informed the evaluations (by,
for instance, denying her responsibility for causing a dural tear). She also calls into
question whether her evaluations in the aggregate justified her probation and dismissal
(by, for instance, offering evidence that the program retained other residents who had
similar evaluations). The main allegation from the first two counts of her complaint is
that the University “refus[ed] to promote her,” even though (in her view, and contrary to
that of her evaluators) she “met all program requirements and did not, otherwise, commit
any act constituting cause for placement on probation and termination from the residency
program.” Only after her adversaries moved for summary judgment did she attempt to
repackage the contract claim as a challenge to something other than her dismissal from
the residency program. Her appellate briefs confirm that her alleged damages all derive
from the dismissal, which allegedly stalled her pursuit of a lucrative career as an
orthopaedic surgeon.
Simply put, Dr. Gurbani’s central claims entailed a challenge to an academic
decision to end her involvement in the residency program. Courts must defer to such a
decision where, as here, the decision resulted from the actual exercise of professional
judgment. The circuit court, therefore, did not err in directing the entry of summary
37
judgment against her.18
B. Challenge to the Process that Culminated in the Dismissal
In addition to her challenge to the University’s professional judgment in deciding
to terminate her residency, Dr. Gurbani contends that Johns Hopkins breached specific
and identifiable provisions of its contracts with her. She argues that she should be
allowed to maintain her action on a narrower theory that the University breached “a
specific contractual promise distinct from any overall obligation to offer a reasonable
program.” Gupta v. New Britain Gen. Hosp., 687 A.2d at 120.
The essence of such a claim is that the institution did not perform a promised
educational service at all, not that it inadequately performed the promised service. See
Ross v. Creighton Univ., 957 F.2d at 416-17. Thus, to establish a viable claim for breach
of an educational services contract, a plaintiff “must do more than simply allege that the
education was not good enough.” Id.; see also CenCor, Inc. v. Tolman, 868 P.2d 396,
398-99 (Colo. 1994) (en banc) (citing Hunter v. Montgomery Cnty. Bd. of Educ., 292 Md.
at 489 n.5, and other cases) (“[c]ontract claims that in fact attack the general quality of
educational experiences” raise “questions concerning the reasonableness of conduct by
educational institutions in providing particular educational services to students –
questions that must be answered by reference to principles of duty, standards of care, and
18
Although courts must defer to academic decisions when reviewing claims for
breach of contract or negligence, they are not precluded from considering statutory
claims of discrimination (based on race, sex, national origin, age, disability, etc.) in the
context of academic decisions. E.g. Hajjar-Nejad v. George Washington Univ., 37 F.
Supp. 3d 90, 124-42 (D.D.C. 2014); Pieszak v. Glendale Adventist Med. Ctr., 112 F.
Supp. 2d 970, 987-91 (C.D. Cal. 2000). Dr. Gurbani has not raised such a claim here.
38
reasonable conduct associated with the law of torts”).
Dr. Gurbani’s briefs include multiple attempts to identify a breach of “a specific
contractual promise distinct from any overall obligation to offer a reasonable program.”
Most of the provisions that she identifies are neither specific nor meaningfully distinct
from the University’s general obligation to educate her. See Gupta v. New Britain Gen.
Hosp., 687 A.2d at 120 (holding that general allegations by a dismissed physician that a
residency program failed to adequately train the physician were insufficient to establish
claim for breach of residency agreement).
For instance, Dr. Gurbani points to the University’s obligations under both
contracts to provide “appropriate and adequate faculty and Medical Staff supervision for
all educational and clinical activities.” In both contracts, the University promised to
“evaluate, through the Program Director and Program faculty, the educational and
professional progress and achievement” of the resident “on a regular and periodic basis.”
The 2011 contract (but not the 2012 version) also stated that the University would
“[p]rovide leadership, organizational structure, and resources to enable” the University
“to achieve substantial compliance” with requirements established by the ACGME. It
explained that “regular assessment” of the performance of residents is an “essential
component[] of this commitment.” The ACGME’s program requirements, in turn, stated
that the “faculty must evaluate resident performance in a timely manner during each
rotation . . . and document this evaluation at the completion of the assignment.”19
The University does not specifically dispute Dr. Gurbani’s assertion that the
19
ACGME program requirements are incorporated by reference into the 2011 contract.
39
Citing these provisions, Dr. Gurbani argues that the University failed to provide
what she calls “the expressly promised training and feedback and required regular and
timely written performance feedback” during the two rotations that preceded her
probation. Yet it is undisputed that the faculty did supervise her clinical work and did
evaluate her performance from those rotations. At most, the evidence shows that some
attending physicians were less than prompt in submitting their formal written evaluations.
Dr. Gurbani did not adduce evidence suggesting that the physicians failed to offer any
feedback at all.
Dr. Gurbani’s arguments about inadequate “feedback” appear to employ that word
in a narrow sense, to mean either a formal, written evaluation or a structured, face-to-face
conference. Dr. Osgood expressed a different view of the teaching process in his
testimony. He opined that the “best feedback” occurs “on a daily basis, . . . at the
moment when the failure occurs.” Dr. Osgood testified that he provided this type of
feedback “in the OR, in the clinic, [and] on board rounds especially.” He opined that “all
the points” addressed in a written evaluation have already been “discussed individually in
person ad nauseum[.]” The University rejected Dr. Gurbani’s grievance in part because
the panel found that Dr. Osgood and Dr. Hasenboehler continued to provide this type of
“informal ‘hallway’ feedback” until she was dismissed.
In any event, the provisions cited above do not amount to a specific promise to
give “feedback” in a particular form or on a particular schedule. The contract does not
define terms such as the “regular assessment” of residents or a “regular and periodic
basis” and a “timely manner” for evaluations. Nor are these terms defined in the
40
University’s written policies or in the ACGME’s program requirements. Consequently,
there is no objective standard to assess whether faculty members were so untimely in
submitting some evaluations that the University can be said to have breached its
obligations by failing to offer any feedback at all.
Dr. Gurbani further complains about the lack of formal feedback during her
probation. She asserts that the University failed to provide all of the meetings and written
feedback that Dr. LaPorte had described in the probation letter. Indeed, the faculty did
not meet every expectation from the letter: Dr. Osgood met with Dr. Gurbani only once
during her second rotation instead of weekly, and neither Dr. Osgood nor Dr.
Hasenboehler gave her written feedback until after the committee decided to dismiss her.
Of course, the probation letter was not a contract, and it did not purport to modify
the contracts. The very first sentence of the letter explained that it “set forth the
guidelines and expectations of the probation period[.]” Dr. Gurbani points to nothing in
either contract that might transform these “guidelines and expectations” into binding
promises.
The University’s probation policy required the program director to “provide a
specific statement” to the resident “as to the action taken,” which Dr. LaPorte did when
she provided the letter. That policy did not require the University to strictly follow the
program director’s plan for improving the resident’s performance. Throughout the
probation period, the University was still obligated under the 2012 contract to have its
faculty “evaluate” Dr. Gurbani’s progress “on a regular and periodic basis.” Yet this
promise was no more specific or more objective than the identical promise from the 2011
41
contract. It could not supply the basis for a claim of breach of contract.
Dr. Gurbani further contends that the contract required the University to give her
“four-months’ or reasonable notice prior to placing her on probation.” To the contrary,
no such requirement existed. The 2011 contract authorized the program director to
impose probation as a “corrective action” in accordance with the University’s general
policy. That policy recommends, but does not require, “verbal warnings” and
“appropriate counseling” to residents whose performance is unsatisfactory. A four-
month delay before taking corrective action would make little sense because, as
explained in the policy documents, academic probation gives the struggling resident
“additional mentoring, counseling or repeating clinical experiences for the purpose of
assisting the [resident] to bring his [or] her performance to an acceptable level.”
It is true that the 2011 contract required the University to provide “written notice
of non-renewal no later than four months” before the end of the appointment term or “as
much written notice of the intent not to renew as the circumstances w[ould] reasonably
allow” if the primary reasons for the nonrenewal occurred within those final four months.
(Emphases added.) Without question, the University did “renew” Dr. Gurbani’s
appointment at the end of the 2011 contract term; it merely declined to offer “promotion
to the next level of training.” Even if the 2011 contract did require the same notice for a
decision to renew an appointment without promotion, the notice clause would not have
required the University to give that notice four months in advance. As Dr. Gurbani
appears to acknowledge, the probation decision was prompted by the faculty meeting that
occurred five weeks before the end of her appointment term. She fails to explain her
42
suggestion that the notice she received was unreasonably prompt.
Dr. Gurbani comes closer to identifying a specific obligation when she asserts that
the University did not provide a “written midyear evaluation.” A clause of the 2011
contract required the program director to “present to and discuss with the Resident a
written summary of the evaluations at least once during each six month period of
training[.]” There is no dispute that Dr. LaPorte met with Dr. Gurbani on January 26,
2012, to discuss evaluations from the first six-month training period. Indeed, Dr.
Gurbani even admitted that they discussed the unfavorable evaluation from her sports
medicine rotation. But although Dr. LaPorte testified that she had all of the written
evaluations in front of her during the meeting, a charitable reading of the testimony
shows that there may be some genuine dispute about whether Dr. LaPorte actually
“present[ed]” a “written summary” of the evaluations to Dr. Gurbani during the meeting.
Perhaps the closest that Dr. Gurbani comes to identifying the failure to fulfill a
specific obligation is when she alleges that the University denied her the right to take a
grievance regarding the probation decision. Dr. Gurbani testified that she orally
requested an “appeal or some type of formal grievance” at the time Dr. LaPorte placed
her on probation in early June 2012, but Dr. LaPorte referred her to Dr. McMillan who
told her “that [her] department was refusing [her] the ability to appeal, that they were not
going to grant [her] that.”
This testimony, viewed in the light most favorable to Dr. Gurbani, indicates that
the University denied a request to initiate a grievance that she apparently was entitled to
take under the contract. Eventually, Dr. Gurbani did initiate a formal grievance in
43
August 2013, long after she had been dismissed from the program. That grievance
encompassed matters both before and after she was placed on probation, and the
grievance panel ultimately denied her grievance on its merits.
The University responds that it complied with or at least substantially complied
with its obligations to give feedback and a fair review process. In addition, the
University argues that, even if Dr. Gurbani could show that it failed to comply with those
obligations, she would not be entitled to pursue a claim for damages, because she would
be unable to show that the alleged breaches resulted in the damages that she claims. We
agree that Dr. Gurbani has not identified any damages that resulted from the arguable
breach of one or two specific contractual undertakings.
As mentioned previously, the alleged damages derive from the decision to dismiss
her from the program. That adverse decision was not the direct result of alleged breaches
such as Dr. LaPorte’s failure to present a “written” summary of her evaluations at the
midyear meeting, or the faculty’s tardiness in submitting some written evaluations, or the
denial of her initial request for a grievance when she was placed on probation.
The University reminds us that “the inherent uncertainty in determining the cause
and nature of any damages” (Hunter v. Bd. of Educ. of Montgomery Cnty., 292 Md. at
484) was a major reason why the Court of Appeals refused to entertain actions based on
alleged errors in the educational process. Dr. Gurbani replies that, “[u]nlike in Hunter,
the question of damages in this case is straight-forward,” because she claims to be able to
show that “she was inappropriately removed,” and that “as a result, her training and
career was delayed” for several years. Indeed, she might be able to proffer an expert who
44
can quantify the value of a promotion to the third year of the residency program. But her
argument fails to establish the other necessary links between the alleged breaches, which
she asserts were “all procedural” in nature, and the dismissal, which rested on substantive
academic evaluations. We fail to see how any reasonable factfinder could conclude that
Dr. Gurbani would have advanced in the program if only the University had given her
more timely written feedback or if only the University had processed the grievance as
soon as she first requested it.
An appellate court confronted a similar claim in Canady v. Meharry Medical
College, 811 S.W.2d 902 (Tenn. Ct. App. 1991). There, a physician sued for damages
resulting from a medical college’s decision not to renew his contract for what would have
been the final year of a five-year surgical residency program, because of his substandard
clinical performance. Id. at 903-04. The trial judge found that the college did not strictly
follow its procedures for a hearing on his possible reinstatement, but concluded that the
physician’s damages were too speculative for him to recover on his breach-of-contract
claim. Id. at 904. The appellate court agreed, explaining:
The damages claimed by plaintiff are based upon the theory that, if
[the medical college] had meticulously followed its grievance procedure, he
would have been successful in his defense against charges and in
prosecution of his complaint; and that as a result of such success, he would
have been reappointed for an additional year; that, at the conclusion of that
year, his services would have received approval and certification; that
plaintiff would thereby have attained admission to a further specialized
residency which he would have successfully completed; and that he
thereafter would have engaged in a successful and profitable specialized
surgical practice.
Id. at 906 (emphasis in original).
45
The appellate court concluded that “the proximate relationship between the
irregularities of procedure and the failure of plaintiff to realize his dream [wa]s too
speculative and subject to too many future variables to show a proximate causal
relationship between the irregularities and the claimed injury.” Id. at 907.
This reasoning is consistent with Hunter, which recognized that academic
achievement “‘is influenced by a host of factors which affect the pupil subjectively, from
outside the formal teaching process[.]’” Hunter v. Bd. of Educ. of Montgomery Cnty.,
292 Md. at 485 (quoting Peter W. v. San Francisco Unified Sch. Dist., 131 Cal. Rptr.
854, 861 (Cal. Ct. App. 1976)). The inability to conclude that an educator’s conduct
caused a student’s limited academic achievement was one major reason that the Court
concluded that “an award of money damages” is “a singularly inappropriate remedy for
asserted errors in the educational process.” Id. at 487. This “difficulty in determining
legal cause” remains present even where “the allegations state breach of contract” instead
of negligence. Id. at 489 n.5.
In summary, although Dr. Gurbani has arguably generated evidence of a breach of
one or two specific contractual undertakings, she has no evidence of any damages
flowing from that breach. For that reason, the circuit court was correct when it granted
the University’s motion for summary judgment on the contract claims.20
20
Dr. Gurbani also asserted a contractual claim for breach of the implied covenant
of good faith and fair dealing, but “no independent cause of action at law exists in
Maryland for breach” of that implied covenant. Mount Vernon Props., LLC v. Branch
Banking & Trust Co., 170 Md. App. 457, 472 (2006). “A breach of the implied duty of
good faith and fair dealing is better viewed as an element of another cause of action at
law, e.g., breach of contract, than as a stand-alone cause of action for money damages[.]”
46
C. Negligent Retention and Supervision of Educators
After devoting most of her arguments to her contract-based claims, Dr. Gurbani
also argues that Hunter’s “educational negligence framework” should not bar her claims
against the University for the negligent retention and supervision of its educators. The
gist of that claim is her assertion that the University breached a duty of care by “not
taking action to ensure that Dr. Osgood and Dr. Hasenboehler were acting in a timely
professional manner” and by “permitt[ing] them to file after-the-fact evaluations[.]”
This count for negligent retention and supervision “clearly sounds in negligence.”
Gasper v. Ruffin Hotel Corp. of Maryland, Inc., 183 Md. App. 211, 231 (2008), aff’d,
481 Md. 594 (2011). Indeed, one count of the Hunters’ complaint had alleged that the
board of education was “negligent in evaluating its personnel and programs.” Hunter v.
Bd. of Educ. of Montgomery Cnty., 47 Md. App. 709, 710 n.3 (1981), aff’d in part, rev’d
in part, 292 Md. 481 (1982). The Court of Appeals upheld the dismissal of that count,
observing that it “expressly state[d] [a] negligence claim[]” regarding the educational
process. Hunter v. Bd. of Educ. of Montgomery Cnty., 292 Md. at 489 & n.5; see also
James v. Frederick Cnty. Pub. Schs., 441 F. Supp. 2d 755, 759 (D. Md. 2006)
(concluding that, under Hunter, Maryland does not recognize a claim against a board of
education for “negligent hiring” of allegedly incompetent staff). So too, we must reject
Dr. Gurbani’s claim that the University should have intervened in the teaching of Dr.
Id. Dr. Gurbani nevertheless argues that her claim for breach of the implied covenant of
good faith and fair dealing presents a viable “alternative theory” for a breach-of-contract
claim, based on additional allegations of “bad faith conduct” by her educators. We
address those allegations in Part II, below.
47
Osgood and Dr. Hasenboehler. Recognition of her claim would improperly require a
court to import “tort principles,” which are “difficult, if not impossible to apply in the
academic environment[.]” Gupta v. New Britain Gen. Hosp., 687 A.2d at 119.
II. Claims Based on Allegations of Bad Faith
As explained above, Dr. Gurbani’s dismissal resulted from an academic decision
that must be afforded great deference. The University was entitled to judgment to the
extent that Dr. Gurbani claimed that her dismissal instead resulted from the University’s
failure to meet its obligations, whether those obligations are grounded in the contracts or
in a common-law duty.
The remainder of Dr. Gurbani’s claims involve allegations that University
employees acted in “bad faith” when they made academic decisions. Bad faith “‘is not
simply bad judgment or negligence, but implies a dishonest purpose or some moral
obliquity and a conscious doing of wrong.’” Rite Aid Corp. v. Hagley, 374 Md. 665, 681
(2003) (quoting Catterton v. Coale, 84 Md. App. 337, 342 (1990)). Dr. Gurbani seeks to
prove not merely that her evaluators misjudged her performance or abdicated their
responsibilities to educate her. In her view, three University employees intentionally
caused the dismissal for motives unrelated to their stated academic rationale. She
suggests multiple legal theories for liability based on those allegations.
First, Dr. Gurbani contends that the University can be held liable for bad-faith
conduct of its employees. “Educational discretion is . . . not limitless[,]” and “in
exercising its professional judgment, an educational institution does not have license to
act arbitrarily, capriciously, or in bad faith.” Gupta v. New Britain Gen. Hosp., 687 A.2d
48
at 121. “Accordingly, in cases involving academic dismissal, educational institutions will
be entitled to summary judgment” on a breach-of-contract claim “unless the plaintiff can
provide some evidence from which a fact finder ‘could conclude that there was no
rational basis for the decision or that it was motivated by bad faith or ill will unrelated to
academic performance.’” Alden v. Georgetown Univ., 734 A.2d at 1109 (quoting
Clements v. Nassau County, 835 F.2d 1000, 1004 (2d Cir. 1987)).21 Dr. Gurbani
contends that evidence of bad-faith conduct by the University employees would support
her claims that the University either breached the residency contracts (Count I) or
breached the implied covenants of good faith and fair dealing (Count II).
Dr. Gurbani also contends that the three employees can be held personally liable
for tortiously interfering (Count III) with her contract with their shared employer. It is
well established that an employee cannot be held liable for “interfering” with a contract
between the employer and another party where the employee was acting within the scope
of employment. See, e.g., Pope v. Bd. of Sch. Comm’rs of Balt. City, 106 Md. App. 578,
591 (1995). To establish such a claim against an employee, the plaintiff must show “that
the employee in question somehow acted maliciously for his [or her] own motives and
beyond the scope of his [or her] authority without the intent to further the interests of the
employer.” Id. at 591-92. Dr. Gurbani contends that evidence that Dr. LaPorte, Dr.
Osgood, and Dr. Hasenboehler evaluated her based on personal spite would support her
21
Dr. Gurbani does not dispute the University’s contention that the decisions to
place her on probation and to dismiss her from the program had a discernible rational
basis.
49
claims for tortious interference.
Dr. Gurbani points out that even an educator may be held liable for committing
intentional torts against a student. See Hunter v. Bd. of Educ. of Montgomery Cnty., 292
Md. at 490. In Hunter, one count of the complaint alleged that “individual educators,
acting intentionally and maliciously, furnished false information to [the Hunters]
concerning the student’s learning disability, altered school records to cover up their
actions, and demeaned the child.” Id. at 484. The Court concluded that this count stated
a viable intentional tort claim, reasoning that “where an individual engaged in the
educational process is shown to have wilfully and maliciously injured a child entrusted to
his [or her] educational care, such outrageous conduct greatly outweighs any public
policy considerations which would otherwise preclude liability[.]” Id. at 490.
Dr. Gurbani’s theories of potential liability based on allegations of intentional,
bad-faith conduct appear to be mutually exclusive. Her theory of liability on the part of
the University requires proof that its employees acted within the scope of their
employment; her theory of personal liability on the part of the three University
employees requires proof that they acted outside the scope of their employment. To
make a sufficient showing under either theory, Dr. Gurbani needed to do more than
simply allege that her evaluators had improper motives. Where a plaintiff’s claim
depends on an issue of a defendant’s bad faith, the defendant is entitled to summary
judgment absent “a showing, supported by particular facts sufficient to allow a fact finder
to conclude that [the defendant] lacked good faith[.]” Rite Aid Corp. v. Hagley, 374 Md.
at 688.
50
This burden is certainly no lower when a plaintiff attempts to show that an
educator acted out of ill will. With respect to the Hunters’ allegations that certain
educators “intentionally and maliciously acted to injure their child[,]” the Court of
Appeals observed that “a claimant will usually face a formidable burden in attempting to
produce adequate evidence to establish the intent requirement” for an intentional tort by
an educator. Hunter v. Bd. of Educ. of Montgomery Cnty., 292 Md. at 490. A claim that
“turns on the animosity” of an educator may survive a motion for summary judgment
“only where solid circumstantial evidence exists” to prove the educator’s mental state.
Clements v. Nassau County, 835 F.2d at 1005. Indeed, a plaintiff “bears a heavy burden”
in attempting to show that an academic dismissal “resulted from . . . bad faith conduct” of
educators. Gupta v. New Britain Gen. Hosp., 687 A.2d at 121. “As with [Dr. Gurbani’s]
claim of deficiencies in [her residency] training, we approach with caution, and with
deference to academic decisionmaking, [her] challenge to the motivation of the [program]
in terminating [her] residency.” Id. at 120.
Dr. Gurbani has not identified direct evidence that any of the defendants evaluated
her based on anything other than the honest use of professional judgment. All
assessments in the record from Dr. Osgood and Dr. Hasenboehler expressly related to
genuine criteria of academic performance. Their comments at faculty meetings and on
written evaluations, while sometimes harsh, were no more extreme than comments from
other evaluators. Dr. Gurbani nevertheless attempts to ascribe hidden, sinister motives
onto these evaluations and to other arguable failings in the educational process.
In her view, when Dr. Osgood and Dr. Hasenboehler voiced concerns about her
51
performance at faculty meetings, they must have been “falsely disparag[ing] her” to their
colleagues. Dr. Gurbani argues that, when Dr. Hasenboehler said that she would need to
work much harder as a female surgeon, he must have been expressing sexism instead of
merely advising her (as others had done) that she probably would encounter sexism in her
career. She argues that, when Dr. Osgood and Dr. Hasenboehler neglected to submit
written evaluations promptly or to schedule weekly meetings, they must have been
deliberately “withh[olding] feedback” “so that [she] could not address issues.” She also
argues that, when Dr. Osgood belatedly submitted a written evaluation that identified
performance issues for her to address, his evaluation is so negative that it must be “highly
suspect and likely fabricated[.]”
In Dr. Gurbani’s view, when Dr. LaPorte asked a colleague about what documents
would be needed for the possibility that she might dismiss Dr. Gurbani, Dr. LaPorte must
have “immediately” decided to terminate her six months before the fact. When Dr.
LaPorte informed other residents that Dr. Gurbani had been placed on academic
probation, Dr. Gurbani argues that Dr. LaPorte must have been trying to “humiliate[]”
her, rather than to enlist help. When Dr. LaPorte reminded Dr. Osgood and Dr.
Hasenboehler to put their evaluations in writing just before the probation committee
meeting, Dr. Gurbani argues that Dr. LaPorte must have been “tr[ying] to gather
fabricated evaluations[.]” When Dr. LaPorte and other University officials confronted
Dr. Gurbani about the false statements she made on her registration with the Board of
Physicians, Dr. Gurbani argues that they must have been “creat[ing] a story to justify the
termination.” When Dr. LaPorte turned over reports of incidents such as the dural tear
52
and missed diagnosis of compartment syndrome (incidents for which Dr. Gurbani denies
responsibility), Dr. Gurbani argues that Dr. LaPorte must have been “misleading” the
grievance panel about the real reason for the dismissal.
These actions by the defendants are not evidence of dishonesty but the very
actions that Dr. Gurbani hopes to prove were done dishonestly. Stripped of her self-
reinforcing suspicions, the actual evidence of the defendants’ conduct does not suggest
bad faith. See Clements v. Nassau County, 835 F.2d at 1005 (reasoning that resident’s
assertion that “the faculty ‘must have resented’ her appeals” of her grades to
administration officials was not evidence of animus where there was “no indication of
any such hostility in the record”). To the extent that she argues that the defendants
knowingly made false reports, her mere denials of their reports cannot be sufficient
evidence of bad faith. See Educ. Testing Serv. v. Hildebrant, 399 Md. 128, 142 (2007)
(rejecting argument that plaintiff’s affidavit stating that a test administrator’s report of
plaintiff’s conduct was “false in every respect” and “contrary to any reasonable
understanding or interpretation of anything that could have been observed” generated a
genuine dispute about whether the test administrator made report in bad faith). To the
extent that she argues that the three defendants should have done a better job to help her
advance in the program, their arguable failings are not sufficient evidence of bad faith.
See Rite Aid Corp. v. Hagley, 374 Md. at 687 (“the availability of other alternatives, and
the possibility, even probability, that the situation might have, or should have, been
handled more effectively and sensitively, while perhaps suggesting negligence, does not
equate to bad faith or a lack of good faith”).
53
The only factual basis that Dr. Gurbani offers for interpreting the defendants’
actions as dishonest seems to be a loose and flexible theory that they had some shared
motive to lie about her performance. The defendants are not exaggerating when they call
this a “conspiracy” theory. In her reply brief, Dr. Gurbani expressly accuses the
defendants of engaging in a “conspiracy” to falsify their evaluations so as “to paper over
a planned termination.” She asserts that she had no “significant issues with her
performance” until her first orthopaedic trauma rotation, during which she started to
complain to Dr. LaPorte about the conduct of Dr. Osgood and Dr. Hasenboehler. She
insists that all of the “supposed negative evaluations” occurred after Dr. Osgood and Dr.
Hasenboehler made “scathing” remarks about her performance at a faculty meeting on
May 24, 2012. Through this imaginative chain of post hoc ergo propter hoc reasoning,
she insists that a jury could conclude that “she was placed on probation . . . because of
her complaints” against them.
Even if evidence of a mere motive to retaliate would be enough to infer that
certain actions were taken with a retaliatory purpose, Dr. Gurbani needed to present
“evidence of retaliatory motive ‘in detail and with precision,’ as required to fend off [a
motion for] summary judgment.” Freilich v. Upper Chesapeake Health Sys., Inc., 423
Md. 690, 694 (2011). At a minimum, she needed to connect the alleged retaliatory
motive to the actions that it allegedly motivated. See id. at 719.
There is no genuine dispute that other faculty members independently identified
underlying issues with Dr. Gurbani’s clinical performance months before her first
orthopaedic trauma rotation. The faculty’s concerns involved both her technical skills
54
and the mental aspects of her performance. These issues were communicated to her
promptly in the evaluations of Dr. Cosgarea and Dr. Sponseller on the two preceding
rotations. The memo from May 4, 2012, the date of the first meeting of the orthopaedic
trauma rotation, documented that Dr. Osgood and Dr. Hasenboehler were already voicing
concerns about “her ability to evaluate patients and make decisions,” just as their
predecessors had.
In contrast to the precise sequence of Dr. LaPorte’s memos, Dr. Gurbani’s
testimony is vague as to when she made her various complaints. By her own admission,
she does “not recall an exact date and time” when she started complaining, nor can she
“recall . . . years later precisely what [she] told Dr. LaPorte” at particular meetings. She
testified that she started complaining “very early” in the rotation, possibly as early as
April 2012. Yet she also submitted a written timeline of meetings, which indicates that
she was unable to discuss issues about the rotation with Dr. LaPorte until the meeting of
May 4, 2012. She testified that she continued to raise “many issues” about the two
attending physicians over several months, and the issues varied in severity. Her
testimony lacks enough detail to permit a finding that she made severe complaints about
either Dr. Osgood or Dr. Hasenboehler or both before they were already voicing concerns
about her performance.22
Furthermore, there is no testimony showing that Dr. LaPorte even told Dr. Osgood
22
In her brief, Dr. Gurbani asserts that she “reported Dr. Osgood’s and Dr.
Hasenboehler’s mistreatment of her” “approximately two weeks” before the faculty
meeting of May 24, 2012. Using that estimate, the performance issues that they had
identified over 20 days earlier would appear to predate her complaints.
55
or Dr. Hasenboehler about her complaints against them before they had started to criticize
her performance. Even if one could infer that they somehow knew of her complaints by
that time, that inference would do little to explain why they would feel so incensed or
threatened that they would wage a months-long retaliatory campaign against her. It
would do even less to explain why Dr. LaPorte would agree to collaborate with their
alleged efforts, as her conduct was not part of the complaints. It would do even less to
explain why she received what were unquestionably poor evaluations from Dr. Ain and
from Dr. Tis in May and June of 2012.23 It would do nothing to explain why, in
connection with the faculty meeting on May 24, 2012, six doctors other than Dr. Osgood
and Dr. Hasenboehler expressed significant concerns about Dr. Gurbani’s performance
based on their own independent observations.
Perhaps because of the flimsiness of her conspiracy theory, Dr. Gurbani has gone
to elaborate lengths to portray the assessments of Dr. Osgood and Dr. Hasenboehler as
outliers. In reality, their assessments were fully consistent with those of other medical
professionals who observed her performance, particularly her performance on the two
previous rotations. Other doctors, without any hint of a retaliatory motive, said that she
made “a number of significant and avoidable errors” in “what should have been
straightforward . . . bread-and-butter pediatric trauma” cases; that she “seem[ed] to show
global lack of information synthesis and lack of a plan” even where the “plan of care
23
Dr. Gurbani believes that comments made by Dr. Osgood and Dr. Hasenboehler
on May 24, 2012, caused other faculty members to submit negative evaluations. Yet Dr.
Tis also submitted a highly negative evaluation on May 11, 2012.
56
seemed obvious”; that she “had problems with thought process” and “just misse[d] some
of the basic points that most residents would pick up on”; that she lacked “even a basic
idea” of what a certain routine procedure was, could not “figure out how to apply basic
tools to [the] spine,” and “[o]ften confuse[d] clockwise vs. counterclockwise rotation of
screws.” To her credit, some evaluators believed that she might have succeeded in the
program if given additional chances to improve. But there is no evidentiary basis to
conclude that her probation and dismissal resulted from the dishonesty of her evaluators.
Despite Dr. Gurbani’s efforts to generate suspicion about the motives of certain
decision-makers, she has not identified facts in detail and with precision to support the
allegations that her evaluators acted in bad faith. See Educ. Testing Serv. v. Hildebrant,
399 Md. at 142-43. “Without any factual evidence to support her allegations, there is no
genuine dispute as to a material fact.” Id. at 142 (emphasis in original). She may not use
the courts to nullify their academic decisions.24
CONCLUSION
The circuit court did not err when it granted summary judgment against Dr.
Barkha Gurbani as to all claims seeking damages resulting from her academic dismissal.
The court was required not to disturb the careful and deliberate decisions made by the
24
To the extent that Dr. Gurbani’s allegations of bad faith are supposed to support
her claims of intentional interference with contract, they are inadequate for the additional
reason that she had insufficient evidence that the University breached the contract or that
she suffered damages as a result of any such breach. See Bagwell v. Peninsula Reg’l
Med. Ctr., 106 Md. App. 470, 503 (1995). Drs. Osgood, Hasenboehler, and LaPorte
cannot be liable for tortiously inducing the University to breach a contract, if the
University did not actually breach the contract or if the breach resulted in no damages.
57
University’s professional faculty. Dr. Gurbani’s thorough search for some factual and
legal basis to circumvent that principle is to no avail.
On a final note, we further agree with the University’s observation that Dr.
Gurbani’s exhaustive set of challenges to its academic decisions “underscores why the
court was right to grant summary judgment.” Hunter, and the larger body of law
requiring deference to academic decisions, wisely counsel against putting these types of
academic evaluations on trial.
JUDGMENT OF THE CIRCUIT COURT FOR
BALTIMORE CITY AFFIRMED. COSTS TO
BE PAID BY APPELLANT.
58
APPENDIX
In her appellate brief, Dr. Barkha Gurbani presented the following questions:
1. Did the Circuit Court improperly grant summary judgment on Dr.
Gurbani’s claim for breach of contract (Count I) related to two Resident
Contracts with Dr. Gurbani because it found that Hunter v. Bd. of Educ. of
Montgomery Cty, 292 Md. 481, 482-87 (1982) bars educational negligence
and breach of contract actions related to conducting student evaluations?
2. Does the Court’s holding in Hunter, 292 Md. at 482-87 bar breach of
contract actions by medical residents in residency programs?
3. Did the Circuit Court improperly grant summary judgment on Dr.
Gurbani’s claim for breach of the covenant of good faith and fair dealing
(Count II), based upon a finding that Maryland does not recognize a
separate cause of action for breach of the covenant of good faith and fair
dealing?
4. Does the Court’s holding in Kaye v. Wilson-Gaskins, 227 Md. App. 660,
676 (2016) bar a breach of the implied covenant of good faith and fair
dealing claim?
5. Does the Court’s holding in Hunter, 292 Md. at 482-87 bar claims of
negligent retention and supervision?
6. Did the Circuit Court improperly grant summary judgment on Dr.
Gurbani’s actions against Appellees Johns Hopkins Health Systems Corp.,
Johns Hopkins Hospital, Inc., Johns Hopkins Medicine, and Johns Hopkins
University for negligent retention and supervision?
7. Did the Circuit Court improperly grant summary judgment on Dr.
Gurbani’s claim against Appellees Greg Osgood, M.D., Erik Hasenboehler,
M.D., and Dawn LaPorte, M.D., for tortious interference with contract
based upon a finding that Appellees Osgood, Hasenboehler, and LaPorte
were acting on behalf of an employer within the scope of their authority?
8. Did the Circuit Court improperly grant summary judgment by ignoring
and failing to evaluate the extensive record of evidence submitted by
Plaintiff?