117 F.3d 866 (5th Cir. 1997), 95-50582, Pierce v. Smith

Docket Nº:95-50582.
Citation:117 F.3d 866
Party Name:Diane PIERCE, Plaintiff-Appellee, v. David SMITH; Louis Binder, Defendants-Appellants, and Texas Tech University Health Science Center, Defendant.
Case Date:July 15, 1997
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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117 F.3d 866 (5th Cir. 1997)

Diane PIERCE, Plaintiff-Appellee,


David SMITH; Louis Binder, Defendants-Appellants,


Texas Tech University Health Science Center, Defendant.

No. 95-50582.

United States Court of Appeals, Fifth Circuit

July 15, 1997

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Mark Berry, El Paso, TX, for Plaintiff-Appellee.

Rodney Paul Geer, Austin, TX, for Defendants-Appellants.

Appeal from the United States District Court for the Western District of Texas.

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Before GARWOOD, BARKSDALE and DENNIS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellee Dr. Diane Pierce (Dr. Pierce) brought this suit against defendants-appellants Dr. David Smith (Dr. Smith) and Dr. Louis Binder (Dr. Binder), claiming that appellants violated her rights under the Fourth and Fourteenth Amendments when they, as officials of the state medical residency program in which she was enrolled, caused her to undergo a private urinalysis test for drugs and submit the test results to program officials, by informing her that she would be expelled from the program if she was not tested. The jury returned a verdict in favor of Dr. Pierce, awarding her compensatory and punitive damages. Dr. Smith and Dr. Binder appeal. We hold appellants are protected by qualified immunity and accordingly reverse.

Facts and Proceedings below

Dr. Pierce was a medical resident in the emergency medicine residency program at the Texas Tech University Health Science Center (TTUHSC) in El Paso, Texas, from 1988 to 1991. Texas Tech is a state institution. As part of her TTUHSC residency program, Dr. Pierce served a two-month rotation at St. Joseph's Hospital in Phoenix, Arizona, during January and February of 1990, where she trained with the trauma team in emergency medicine.

On February 22, 1990, a patient was admitted to the St. Joseph's emergency room with head injuries sustained after smashing his head through the windshield of his car in an automobile accident. The patient, who was under the influence of alcohol and drugs, was extremely uncooperative and aggressive.

Dr. Dale Stannard, the attending physician on the emergency service that day, ordered that a CAT scan be performed to determine whether the patient had suffered any internal head injury. Hospital orderlies brought the patient to the CAT scan room and placed him on the scan table. As part of the trauma team, Dr. Pierce was called to the CAT scan room to see the patient. When she arrived, she noticed that the orderlies were having difficulty restraining the patient on the table. Dr. Pierce tried to help and as she leaned over the patient to tighten his restraints, he spat in her face. Dr. Pierce, in her words, "hard slapped" the patient at least two times on his face.

Dr. Pierce, the only physician present, left the room to wash off the saliva. When she returned, the nursing supervisor forcefully escorted her out of the room, telling her to stay away from the patient. Dr. Stannard, who was not present in the CAT scan room when the incident occurred, was told by the night supervisor that Dr. Pierce had "karate chopped" the patient. Later on, however, Dr. Stannard learned that Dr. Pierce had actually slapped the patient. He believed that there was no cause to discipline her.

The following day, Dr. Pierce was called in to see Dr. Raymond Shamos, the acting trauma director at St. Joseph's. The administrators at St. Joseph's were upset by the incident and wanted to promptly send Dr. Pierce back to TTUHSC in El Paso. Dr. Shamos, however, felt such steps were unnecessary and instead instructed Dr. Pierce to seek counseling with St. Joseph's employee counseling administrator. She underwent counseling and was allowed to finish the remaining three days of her rotation at St. Joseph's. The counselor recommended that on her return to El Paso Dr. Pierce "contact the University Psychiatric department to continue counseling sessions."

Dr. Smith, the residency director at TTUHSC at the time, learned of the incident through Pat Jones, the emergency medicine department administrator, who told Dr. Smith that Dr. Pierce had "beat up a patient" at St. Joseph's. Dr. Smith began his own investigation of the incident, which included talking with Dr. Brian Nelson, who was chairman of the faculty at TTUHSC, and Dr. Shamos. During Dr. Smith's telephone conversation with Dr. Shamos, Dr. Smith was told that Dr. Pierce had karate chopped the patient in the neck. Later, Dr. Smith met with Dr. Binder, Associate Professor in the Department of Emergency Medicine at TTUHSC and Assistant Dean, to discuss the incident. Due to incorrect information received from St. Joseph's, both Dr. Smith and

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Dr. Binder thought that Dr. Pierce had karate chopped a patient and had to be physically restrained from the patient. They discussed a number of possible explanations for Dr. Pierce's surprising behavior, including drug use.

Upon Dr. Smith's request, Dr. Pierce met with Dr. Smith in his office on February 28. At that meeting, Dr. Smith handed Dr. Pierce a letter and told her that she was being placed on probation, with pay, pending an investigation into the incident.

This was not the first time Dr. Pierce had been on probation in her TTUHSC residency. During the summer of 1989, she was placed on probation for, among other reasons, excessive tardiness, poor interpersonal relationship problems with the faculty and patients, and failing to carry an acceptable volume of patients. At that time (in 1989), there was some discussion among the faculty members that drug use might be the cause of Dr. Pierce's behavior. When asked during 1989 by Dr. Nelson whether she was using drugs, Dr. Pierce replied that she was not. Dr. Pierce was eventually taken off this probation, and was not on probation when she slapped the patient at St. Joseph's.

Dr. Smith also told Dr. Pierce in the February 28 meeting that she would have to undergo psychiatric evaluations. On March 2, Dr. Smith met with Dr. Pierce again, and told her that she would be required to undergo two psychiatric evaluations. One evaluation would be performed by a doctor selected by TTUHSC and the other evaluation by a doctor selected by Dr. Pierce.

On that same day, Dr. David Smith contacted Dr. Robert Smith about performing the evaluation on Dr. Pierce on behalf of TTUHSC. Dr. Robert Smith agreed to do so. Dr. David Smith understood that the evaluation would include a urine drug test.

Dr. David Smith met with Dr. Pierce for a third time on March 9. Dr. Pierce handed to Dr. Smith letters written by Dr. Stannard and Dr. Shamos on her behalf, describing their accounts of what had happened at St. Joseph's and, specifically, correcting earlier stories that Dr. Pierce had karate chopped the patient and explaining that Dr. Pierce instead had slapped the patient three times on the face. Dr. Smith brought these letters to the attention of Dr. Binder and Dr. Nelson. However, the letters did not cause the doctors to rule out drug use as a possible explanation for Dr. Pierce's conduct.

Dr. Pierce arrived at Dr. Robert Smith's office on March 14 to undergo her psychiatric evaluation. At that time, she was informed by Dr. Robert Smith that he had scheduled a urinalysis drug test for their next appointment on March 17. Dr. Pierce objected to taking the drug test, and went to speak with Dr. David Smith, informing him of her objection to the urinalysis. Dr. David Smith told her that he would bring the matter of the urinalysis up with the faculty on March 20. 1 Dr. Pierce met with Dr. Robert Smith on March 17, and she told him she would likely refuse to take the urinalysis test. Dr. Pierce next met with Dr. David Smith on March 19. Dr. Pierce testified that on this occasion Dr. David Smith told her "if I didn't take the urinalysis test, I'd be dismissed" and "indicated that he had to be able to prove to Dr. Nelson [TTUHSC faculty chairman] and Dr. Glass [a faculty member] that I wasn't using drugs." Dr. Pierce did not indicate she would submit to urinalysis, but did not definitely say she would not.

Nothing in the record suggests that either Dr. David Smith or Dr. Binder, alone or in combination with each other, had or claimed to have the authority to actually dismiss Dr. Pierce. The only matter in the record speaking to this is the "Personnel Relations & Disciplinary Action" attachment to the TTUHSC Graduate Medical Education Program Agreement between TTUHSC and Dr. Pierce for the period July 1, 1989, to June 30, 1990. This attachment provides that the Program Director has the authority to recommend dismissal to the dean of the Texas Tech medical school, "through" the TTUHSC dean, who in 1990 was Dr. Joseph Brown (to whom Dr. Binder reported), "for review and action." It also provides that a resident has

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the right to appeal a dismissal, with attendant due process rights, and that compensation and benefits shall continue, and certifying boards and medical associations shall not be notified of the dismissal, during the appeal process.

Although she still would not commit to take Dr. Robert Smith's urinalysis test, on March 23 Dr. Pierce decided to take a urinalysis drug test at an independent laboratory, Pathlab. After receiving the results, which were negative, from the laboratory, Dr. Pierce hand-delivered the report to Dr. David Smith on March 30, which he accepted in place of the urinalysis which had been arranged for by Dr. Robert Smith. The evidence indicates, and there is no evidence to the contrary, that prior to receiving this report neither Dr. David Smith nor Dr. Binder nor anyone else at TTUHSC (nor Dr. Robert Smith) had any indication that Dr. Pierce intended to take (or had taken) a urinalysis drug test, independently or otherwise. On that same day, after reviewing the...

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