ABBAS KARIMI, M.D. v. TRENTON PSYCHIATRIC HOSPITAL, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2295-04T12295-04T1

ABBAS KARIMI, M.D.,

Plaintiff-Appellant,

vs.

TRENTON PSYCHIATRIC HOSPITAL,

DEPARTMENT OF HUMAN SERVICES,

STATE OF NEW JERSEY, JOSEPH

JUPIN, JR., and NILA A.

SHETH, M.D.,

Defendants-Respondents.

__________________________________

 

Argued: April 24, 2006 - Decided May 12, 2006

Before Judges Cuff, Parrillo, and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1341-00.

Bennet D. Zurofsky argued the cause for appellant (Reitman Parsonnet, attorneys; Mr. Zurofsky, on the brief).

Saju C. Mathew, Deputy Attorney General, argued the cause for respondents (Zulima V. Farber, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Mathew, on the brief).

PER CURIAM

Plaintiff Abbas Karimi, a medical doctor employed by defendant Trenton Psychiatric Hospital (TPH), appeals from summary judgment in favor of TPH and defendants Joseph Jupin, Jr. and Nila Sheth. We affirm.

Plaintiff's clinical privileges were suspended for nineteen days following the death of a nineteen-year-old patient under his care. Plaintiff filed a complaint alleging violations of his civil rights, namely the failure to afford him pre-suspension notice and a hearing, and a violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. He asserted that the temporary suspension of his clinical privileges was in retaliation for filing a CEPA claim in 1990.

By letter opinion dated December 9, 2004, Judge Andrew J. Smithson granted summary judgment to TPH. Judge Smithson held that plaintiff had not shown a whistle-blowing activity or an adverse employment action. He also ruled that plaintiff did not establish a due process violation. Judge Smithson recited the following facts derived from the record and viewed in the light most favorable to plaintiff, as required by Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995):

Plaintiff, Dr. Karimi, has been employed by TPH, as an internist since 1984. In 1990, Dr. Karimi instituted a lawsuit against TPH for, among other things, retaliation in violation of CEPA. The lawsuit was dismissed pursuant to a settlement agreement entered into by the parties. Plaintiff, by his own account, did not encounter any further retaliatory action following the settlement until the incident from which the allegations of this current suit arise.

Specifically, plaintiff examined SG, a patient under his direct care, on April 6, 1999, in response to SG's complaints of nausea, abdominal discomfort and vomiting. At the time of this examination, though he signed off on SG's chart, plaintiff failed to note that she had an abnormal urinalysis on March 15, 1999, which showed a +3 glucose reading. Plaintiff was off duty from the evening of April 7th until the morning of April 8, 1999. Dr. Huq was the covering physician on duty during this time. By the morning of April 8, 1999, SG's condition had significantly worsened. The incoming physician had her transferred to an acute care facility, where she died of keto acidosis, a diabetes related condition, on April 15, 1999. After SG was transferred, Dr. Karimi noticed the abnormal urinalysis for the first time, and reported his error to his superior, Dr. Tattory, the Chief of Medicine at TPH at the time. Plaintiff admits that his oversight contributed to SG's death since she may not have died had she been properly treated for her diabetes.

The same day SG died, Ric Greenley, TPH's Complex Administrator, received a memorandum from the Drake West 1 Treatment Team, plaintiff's coworkers/teammates, stating:

The West 1 Treatment Team have many concerns regarding the medical treatment and care our patients are receiving under the care of Dr. Karimi. There is no adequate care and follow-up for our patients on West 1. Their complaints are not taken seriously and often ignored by Dr. Karimi. On April 7, 1999 Dr. Karimi was confronted by team members who questioned his treatment and lack of treatment of [SG]. Dr. Karimi responded that her physical was normal. We have patients who have complicated medical problems and need follow-up and care, Dr. Karimi does not have our confidence to provide the level of care needed for our patients.

Team members are not comfortable relying on his judgment and medical expertise that he provides for our patients. We have had several incidents that we feel may have been avoided if Dr. Karimi had provided adequate medical treatment and follow-up for our patients.

Later that day, Joseph Jupin, CEO, served plaintiff with a notice of suspension, which stated:

This will serve as official notice that I, as the governing body of Trenton Psychiatric Hospital, am suspending your clinical privileges immediate[ly] for an indeterminate amount of time.

I regret that this action is necessary but I feel that it is prudent until the incident of clinical care involving patient is thoroughly investigated. I expect that the investigation will result in additional information and recommendations which will be considered by me in further addressing this issue.

TPH bylaw provides that "clinical privileges of medical staff members and medical staff membership may be temporarily affected by . . . [evidence of gross neglect/abuse after initial review] . . . until completion of the peer review process."

Although plaintiff continued to work in an administrative capacity at regular pay, and the suspension did not affect his seniority status or other benefits he contends that this course of action did, however, damage his personal pride and reputation. No other person was suspended regarding the SG matter.

On April 16, 1999, Jupin, in accordance with TPH's bylaws, formed a peer review committee, whereby committee members were charged with the following:

Your task is to evaluate the clinical care and treatment provided to patient by staff of Trenton Psychiatric Hospital during a relevant time period preceding her death which occurred on April 15, 1999. Specifically, your committee must advise the Governing Body whether prevailing standards of medical care were met in this case and if not, which staff, if any, bear responsibility for failure to meet the standard of care. I will expect a written report on your committee's methodology, finds and recommendations which will be submitted to me no later than Friday, April 23, 1999.

On April 23, 1999, the committee issued its report, which concluded:

It is the opinion of the committee from the facts available that the care rendered by Dr. Karimi during SG's stay at TPH the last three days was appropriate, however, there was an obvious lack of documentation on April 5 and 7, 1999. In addition, he failed to detect the 3+ glycosuria, even though he initialed the urinalysis report on March 15, 1999, a finding which may have permitted diagnosis and treatment of the underlying diabetes.

The committee's report was found to be deficient by Jupin in that it failed to make a recommendation as instructed. Thus, on April 26, 1999, Jupin created a second Peer Review Committee to "review issues related to the quality of care provided by one of our medical staff, Dr. Karimi." Plaintiff contends that Jupin should have "done nothing" when the first peer review committee neglected to make a recommendation, rather than form a second committee. The second committee submitted its report on April 30, 1999, recommending that plaintiff's clinical privileges be restored, but that he was to work under the supervision of the Chief of Medicine, until an Ad Hoc Committee, at the end of 90 days, made a further determination. Jupin accepted the committee's recommendation, and plaintiff's clinical privileges were restored with supervision by the Chief of Medicine on May 4, 1999, and fully restored on August 9, 1999. Plaintiff did not appeal the recommendation, as was his right under TPH's bylaws.

On May 11, 1999, Dr. Sheth, Clinical Director and President of Medical Staff at TPH, filed a report with the National Practitioner's Data Bank regarding plaintiff and the subsequent investigation of SG's death. The report stated:

Patient evaluation and follow up to abnormal lab studies on a patient who later died were the issue under investigation and analysis by three physician panel composed of medical staff members. Privileges were temporarily suspended as a preventative measure effective 4/15/1999 to reduce the potential risk to other patients during investigation and determination of further action. Clinical privileges are restored effective 5/4/1999 as recommended by the peer review panel. Panel also recommended that his work be supervised by the Chief of Medicine for 90 days. Chief of Medicine will meet with him regularly and review sample records with him. His performance will be reviewed by a panel of physicians after 90 days to recommend further action.

Plaintiff filed a rebuttal statement, which is posted with the report made by TPH. His statement is as follows:

The patient in question, SG died one month after I inadvertently missed 3+ glycosuria on her urinalysis report. On the day the patient became deathly sick she was examined by another doctor, as patient was reported to have fallen down a couple of times for no apparent reason. This doctor missed a severely volume depleted patient by neglecting to do a simple bedside diagnostic maneuver e.g. "tilt" test to look for or[th]ostatic hypotension which is the hallmark of an acidotic patient. Six hours later this patient went into a frank shock, vomited and aspirated. She ended up on mechanical ventilation and died 7 days later due to complications of ARDS or "shock-lungs." Yet the Adm here blamed me by suspending my clinical privileges, condoning at the same time, the doctor who failed to properly examine the patient, thereby missing a fatal diagnos[i]s. This patient would still be alive if she was diagnosed in a volume-depleted stage when he initially saw her. I would leave up to the good discretion of the Secretary, whether or not this damaging info should be in my file or not. I have neither broken any federal law nor committed any ethical violation.

On August 16, 1999, Dr. Sheth advised the NPDB that plaintiff's privileges were fully restored. After repeatedly attempting to appeal to Dr. Sheth to withdraw the report on the NPDB, plaintiff, almost three years after the filing of the report, appealed the TPH report to the Secretary of the Department of Human Services. On September 30, 2002, the NPDB voided the report. TPH did not oppose plaintiff's appeal or NPDB's decision to report.

Judge Smithson addressed the CEPA claim first. As to the issue of protected activity, he provided the following analysis:

Plaintiff has not pointed to a whistle-blowing activity in which he was engaged. He bases his CEPA claim on the lawsuit he filed in 1990. Though that lawsuit arose, at least in part, because he reported the inadequate medical care patients were receiving, the lawsuit itself does not serve as a whistle-blowing activity. By definition a CEPA lawsuit is based on a whistle-blowing activity perpetrated by the plaintiff, it does not constitute the whistle-blowing activity. Plaintiff admits that since the 1990 lawsuit he has not engaged in any whistle-blowing activity. Moreover, he does not claim that his pre-1990 report serves as the basis for the present complaint. Consequently, plaintiff has not established a prima facie CEPA claim.

Then, Judge Smithson discussed the absence of an adverse employment action. He stated:

Even if this court were to allow that plaintiff's prior lawsuit met the first prong of a CEPA claim, plaintiff still cannot prevail, for he has offered no evidence of an adverse employment action. Finality is the trademark of an adverse employment action in a CEPA claim. See Hancock v. Oaklyn, 347 N.J. Super. 350, 360 (App. Div. 2002)(citing Keelan v. Bell Communications Research, 289 N.J. Super. 531, 539 (App. Div. 1996)(wherein the court determined that there did not exist a retaliatory action until plaintiff's actual discharge, and concluded that "[t]he definition of retaliatory action speaks in terms of completed action). "Discharge, suspension or demotion are final acts. 'Retaliatory action' does not encompass action taken to effectuate the 'discharge, suspension or demotion.'" I[bi]d.

Despite plaintiff's argument to the contrary, the suspension of his clinical privileges does not equate to the suspension to which the court refers in its definition of retaliatory action quoted above. A disciplinary action is "virtually equivalent" to a final action, or discharge, only where such action impacts the employee's compensation or job rank. Pierce v. Ortho Pharm. Corp., 84 N.J. 58[, 75] (1980)(not every disciplinary action taken by the employer can support a retaliation claim, but rather only those actions that effect compensation or rank); see also Zamboni v. Stamler, 847 F.2d 73, 82 (3d Cir.), cert. denied, 488 U.S. 899 [ 109 S. Ct. 245, 102 L. Ed. 2d 233] (1988)(where the Court predicted that the New Jersey Supreme Court would limit unlawful retaliation claims to disciplinary actions that effect compensation or job rank).

Plaintiff's clinical privileges were suspended for approximately three weeks. He was still able to work at the hospital in an administrative capacity during this period. He was paid at the same [rate] throughout the investigatory proceedings, and he maintained his seniority status. The actions taken by defendants do not constitute an adverse employment action.

At oral argument, plaintiff argued that the loss of clinical privileges, even for a limited time, caused a loss of professional stature. This argument ignores the letter sent by plaintiff's treatment team to the Chief Executive Officer of TPH prior to his suspension. In the letter, the treatment team expressed its lack of confidence in his medical treatment of the patients assigned to their team. In other words, plaintiff had little, if any, professional standing to lose.

Judge Smithson also held that plaintiff received all the process that he was due. He wrote:

To determine whether due process requirements apply, the court must examine the nature, not the "weight" of the interests at stake. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570-571 [ 92 S. Ct. 2701, 2706, 33 L. Ed. 2d 548, 557] (1972). The procedural protections of the Due Process Clause are not invoked simply because a grievous loss has been visited upon a person by the State; the nature of the interest must be within the contemplation of the liberty or property language of the fourteenth amendment. Jago v. Van Curen, 454 U.S. 14, 17 [ 102 S. Ct. 31, 34, L. Ed.2d 13, 17] (1981). The due process clause does not require a hearing in every conceivable case of government impairment of private interest. Wolff v. McDonnell, 418 U.S. 539, 557 [ 94 S. Ct. 2963, 2975, 41 L. Ed. 2d 935, 951] (1974).

For claims of procedural due process violations, the deprivation by state action of a constitutionally protected interest in life, liberty, or property is not in itself unconstitutional; what is unconstitutional is the deprivation of such an interest without due process of law. Zinermon [v. Burch], supra, 494 U.S. [113] at 125 [ 110 S. Ct. 975, 983, 108 L. Ed. 2d 100, 113-14]. The constitutional violation actionable under 1983 is not complete unless and until the state fails to provide due process; an alleged deprivation itself is not actionable. Id. at 126. To determine whether a constitutional violation has occurred, it is necessary to ask what process the state provided, and whether it was constitutionally adequate. I[bi]d. This inquiry involves the examination of the procedural safeguards built into the statutory or administrative procedure of effecting the deprivation, and any remedies for erroneous deprivations provided by statute or tort law. I[bi]d. The due process analysis as to liberty parallels the accepted analysis for property deprivation. Wolff, supra, 418 U.S. at 557 [94 S. Ct. at 2975, 41 L. Ed. 2d at 951].

The minimum requirements of procedural due process are a matter of Federal law and are not diminished by the fact the state may have specified its own procedures that it may deem adequate for determining the preconditions to adverse official action. Layton v. Beyer, 953 F.[2]d 839, 849-850 (3d Cir. 1992). Due process requires that deprivation of life, liberty, or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case. Armstrong v. Manzo, 380 U.S. 545, 550 [ 85 S. Ct. 1187, 1189, 14 L. Ed. 2d 62, 65] (1965). The opportunity to be heard must be granted at a meaningful time and in a meaningful manner. Id. at 552 [ 85 S. Ct. 1191, 14 L. Ed. 2d 66]. The formality and procedural requisites for the hearing can vary, depending on the importance of the interests involved and the nature of the subsequent proceedings. Boddie v. Connecticut, 401 U.S. 371, 378 [ 91 S. Ct. 780, 786, 28 L. Ed. 2d 113, 119] (1971). Also, due process is a flexible conception and calls for such procedural protections as the particular situation demands. Mathews v. Eldridge, 424 U.S. 319, 334 [ 96 S. Ct. 893, 902, 47 L. Ed. 2d 18, 33] (1976). However, it is fundamental that a person be afforded opportunity for some kind of a hearing before being deprived of a protected interest, except for extraordinary situations where some valid government interest is at stake that justifies postponing the hearing until after the event. Board of Regents, supra, 408 U.S. at 570 n.7 [92 S. Ct. at 2706 n.7, 33 L. Ed. 2d at 557 n.7]; See also, Goss v. Lopez, 419 U.S. 565, 582 [ 95 S. Ct. 729, 740, 42 L. Ed. 2d 725, 739] (where the Court found that students facing temporary suspension qualify for due process protection, but noted that "there are recurring situations in which prior notice and hearing cannot be insisted upon. Student[s] whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school.").

The identification of the specific dictates of due process generally requires consideration of three distinct factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved, and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

[Mathews, supra, 424 U.S. at 335 96 S. Ct. at 903, 47 L. Ed. 2d at 33].

As to the due process claims against Jupin and Sheth, Judge Smithson held that both were immune from liability. He presented the following analysis:

Plaintiff claims that both Joseph Jupin and Dr. Sheth are personally liable for violating his due process rights. Specifically, plaintiff asserts that Jupin is liable for (1) unilaterally deciding to suspend his clinical privileges without proper notice or a hearing and with total disregard for TPH's bylaws, rules and regulation, which authorize the medical staff to make such decisions; (2) forming a second peer review committee which is not authorized by the bylaws; and (3) for his continued failure to include other possible responsible parties in the investigation. As for Dr. Sheth, plaintiff alleges that she is personally liable under 1983 for (1) filing a false report with the NPDB; and (2) failing to retract the false report at plaintiff's request, thereby negatively impacting plaintiff's reputation.

At this juncture it is unnecessary to address each of plaintiff's enumerated grievances because Jupin and Dr. Sheth are immune from individual liability.

It is an affirmative defense afforded to government officials sued for actions taken in the course of carrying out their official duty. Qualified immunity entitles a government official to avoid having to stand trial or face other burdens of litigation. Saucier v. Katz, 533 U.S. 194, 200 [ 121 S. Ct. 2151, 2155, 150 L. Ed. 2d 272, 281] (2001). The privilege is an immunity from suit rather than a defense to liability. I[bi]d. Like an absolute immunity, the privilege is effectively lost if a case is erroneously permitted to go to trial. Id. at 201 [121 S. Ct. at 2156, 150 L. Ed. 2d at 281].

If the official's actions at issue were undertaken while performing discretionary functions, such official is "generally shielded from liability for civil damages insofar as their conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 [ 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396, 410] (1982). Thus, when the law is clearly established at the time of a defendant's action, the qualified immunity defense is inapplicable. I[bi]d. But, where the court determines that "the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful." Id. at 818 [102 S. Ct. at 2738, 73 L. Ed. 2d at 410].

In the instant matter, there were no clearly defined legal guidelines for Jupin to follow. Neither the bylaws nor legal precedent establish standards applicable to the circumstances Jupin faced. Jupin's decision to suspend plaintiff's clinical privileges [following] the death of a patient under his care was certainly a discretionary decision. Additionally, his decision to form a second peer review committee when the first "reneged on their duties" by not making a recommendation was also discretionary. Plaintiff claims that in forming this second committee, defendants acted in complete disregard for TPH's bylaws, rules and regulations. This court's reading of the bylaws is to the contrary. The bylaws do delegate the responsibility of ensuring "appropriate and quality care and services to all patients." Trenton Psychiatric Bylaws, Art. IV. However, the bylaws also state that the CEO is "ultimately responsible for the efficient and effective operation of the facility and to ensure that that quality patient care and services are consistently provided. TPH Bylaws, Art. IV. The bylaws also vest the CEO with the authority to create additional committees -- committees not specifically addressed in the Bylaws -- "on an as-needed basis." Considering that the bylaws as well as legal precedent are silent as to the specific situation confronting Jupin, coupled with the fact that the bylaws may be read to support Jupin's actions, it follows that Jupin was perf[or]ming a discretionary function. There was simply no way for him to "know" whether he was acting in violation of the law. Because Jupin was performing a discretionary function, he is entitled to qualified immunity, and plaintiff's 1983 claim must fail.

Dr. Sheth is also entitled to immunity. There is no indication that Dr. Sheth's report was false or fraudulent in any way. Plaintiff's argument to the contrary appears to be founded on mere semantics. For example, plaintiff takes issue with the fact that the report states that plaintiff has been suspended, pending further investigation, "to reduce potential risk to patients." Plaintiff argues that this is a false and inaccurate statement because there was never any finding that plaintiff posed a threat to patients. The report, however, does not say that he did pose a threat to patients, or that any such conclusion had been reached. Rather, the report states the reason for plaintiff's temporary suspension; i.e., until all the facts were ascertained, plaintiff's clinical privileges were suspended as a precautionary measure. Consequently, Dr. Sheth was under no obligation to withdraw the report, as it reasonably stated the circumstances surrounding SG's death and the ensuing investigation. Furthermore, Dr. Sheth explicitly included the fact that the investigatory committee restored plaintiff's privileges, albeit with supervision. She then followed up with another statement when plaintiff's privileges were fully restored. As a further aside, even if the court were to find Dr. Sheth's actions inappropriate, and qualified immunity inapplicable, plaintiff's claim against Dr. Sheth individually would still fail, as plaintiff did not name Dr. Sheth individually in his complaint.

Finally, the judge addressed plaintiff's remaining due process claims that he was suspended without notice and an opportunity to be heard and that TPH filed false reports with the NPDB. Judge Smithson resolved those claims as follows:

As already discussed in reference to plaintiff's individual 1983 claims, defendants did not violate any bylaws or state regulations, as there were no explicit rules governing the situation with which TPH was faced. Plaintiff has not offered any evidence to the contrary, and this court concludes that TPH cannot be held liable for making a discretionary decision that was within its power to make. Also, already discussed above, is the court's finding that Dr. Sheth's reports outlining the circumstances surrounding SG's death were appropriate and did not contain any false or fraudulent information. Therefore, only the issue notice and hearing issue remains.

Plaintiff was SG's primary care physician, and shortly before SG went into diabetic shock plaintiff, by his own admission, failed to take note of a +3 glucose urinalysis. Coupled with the fact that Jupin received a letter stating that SG's treatment team, plaintiff's colleagues, were concerned with the care plaintiff was providing patients, it is evident that this was an extraordinary situation where defendants were justified in taking immediate action. Weighing plaintiff's interest in upholding his reputation against defendants' interest in protecting patients from possible harm, the patients' well being necessarily predominates. This is especially true given that protective measures were built into the investigatory/review process. The bylaws, which are promulgated by the medical staff, empower the medical staff to conduct investigations, form conclusions and make final recommendations. Moreover, the bylaws afforded plaintiff the right to appeal any final decision.

While plaintiff's reputation may have suffered to some degree, this court finds that he received adequate notice under the circumstances. In fact, defendants would have been suspect had they not taken immediate action, or if, as suggested by plaintiff, defendants "did nothing" when the first peer review committee failed to make a recommendation.

 
We have reviewed the record in its entirety and are satisfied that summary judgment was properly entered in favor of TPH. We affirm substantially for the reasons expressed in Judge Smithson's December 9, 2004 opinion.

Affirmed.

Judge Parrillo was not present for oral argument but has reviewed the tape recording of the session.

Although Dr. Karimi had been terminated [in 1990] . . ., his employment was restored [in 1994] and personnel records were changed to omit all reference to the termination as part of a settlement agreement entered into by Dr. Karimi and TPH. . . .

Every patient at TOH is assigned a treatment team, generally comprised of clinical psychiatrists, physician specialists, the program coordinator, the RN, the psychologist and, possibly, the occupational therapist.

(continued)

(continued)

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A-2295-04T1

May 12, 2006