192 F.3d 378 (3rd Cir. 1999), 98-5502, Pamintuan v. Nanticoke Memorial Hospital

Docket Nº:98-5502
Citation:192 F.3d 378
Case Date:September 21, 1999
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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192 F.3d 378 (3rd Cir. 1999)




No. 98-5502

United States Court of Appeals, Third Circuit

September 21, 1999

ARGUED June 17, 1999


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Leonard L. Williams, Esq. (Argued) 1214 King Street Wilmington, DE 19801 Brian J. Bartley, Esq. Sullivan & Bartley 1010 Concord Avenue Suite 200 Wilmington, DE 19802 Attorneys for Appellant

Richard G. Elliott, Jr., Esq. (Argued) Claudia A. DelGross, Esq. Richards, Layton & Finger One Rodney Square P.O. Box 551 Wilmington, DE 19899 Attorneys for Appellee

Before: Nygaard, Stapleton, and Cowen, Circuit Judges.


Nygaard, Circuit Judge.

Appellant, Dr. Elvira Pamintuan, an OB/GYN who had her privileges suspended at Nanticoke Memorial Hospital, sued the hospital claiming that its action was racially motivated. Nanticoke Memorial defended

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its actions, citing concerns about the quality of care Dr. Pamintuan had been providing. On summary judgment, the District Court ruled that Dr. Pamintuan did not have standing to sue Nanticoke Memorial under Title VII because she was not an employee of the hospital. In addition, the District Court held that Dr. Pamintuan had failed to present sufficient evidence to support her claims of disparate treatment under 42 U.S.C. § 1981. Finally, the District Court found that the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq., precluded a state law damage award. We will affirm.


The facts, stated in the light most favorable to Dr. Pamintuan, are taken in large part from the District Court's opinion. See Pamintuan v. Nanticoke Mem'l Hosp. , C.A. 96-233, 1998 WL 743680 (D. Del. Oct. 15, 1998). Dr. Pamintuan, who is of Filipino descent, has been licensed to practice medicine in Delaware since 1971, specializing in obstetrics and gynecology. Until her suspension, she had staff privileges at Nanticoke Memorial. These privileges had been renewed periodically, most recently in 1992 for a two-year period, and included admitting, treating, and consulting patients at Nanticoke Memorial.

A. Obstetrics and Gynecology Departmental Meetings

Beginning in December 1990, the minutes of the Department of Obstetrics and Gynecology1 monthly meetings began to reflect concern with Dr. Pamintuan's performance. Most of these notations indicate that she had failed to comply with hospital policy concerning response time and progress notes. For example, the minutes from the December 1990 meeting reveal that the nursing supervisor filed a report documenting Dr. Pamintuan's failure, in violation of hospital bylaws, to timely respond to a call regarding a cesarean section.2 Minutes from the December 1991 and January 1992 meetings record Dr. Pamintuan's failure to promptly enter a patient's progress notes; as a result the OB/GYN Department sent Dr. Pamintuan a memo regarding the need for timely charting.

Similar concerns regarding delinquent charting were raised at the September 1992 meeting:

This was a patient from the clinic admitted on 7/21/92 with acute pyelonephritis during pregnancy and stayed in the hospital for five days. Problem: no H & P, no progress notes and all orders were verbal except for admission and discharge. This chart was incomplete for two months. Only two entries were made. This chart was needed for a second admission and no documentation was present to assist with the second admission.

App. at B-305. As before, Dr. Pamintuan was sent a memo about the incident. At the next meeting, the OB/GYN Department voted to send the chart to Nanticoke Memorial's Quality Assurance Committee for further investigation because "the Department of OB feels that patient care was compromised in this case because of the lack of information in the chart, which is a violation of the medical staff practice in this institution."3 App. at B-307.

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Concerns about Dr. Pamintuan's timeliness, chart deficiencies, and other complaints concerning her conduct continued to be documented at OB/GYN Department meetings throughout 1993. In January 1993, the Director of Maternal/Fetal Nursing complained about Dr. Pamintuan's response time (three hours) after being beeped; Dr. Pamintuan contended that her beeper was defective. In April 1993, the minutes reflect two complaints regarding Dr. Pamintuan. The first, from the Vice President of Nursing and Administration, accuses Dr. Pamintuan of improperly arranging to admit a patient while she was on the "sanctions list" for failure to keep her charts up-to-date. The second, from the Director of OR Nursing, accused Dr. Pamintuan of unnecessarily keeping the on-call team in the operating room from 1:45 am to 5:15 am. Dr. Pamintuan denied both incidents. These incidents were discussed at the May, June, July, and August 1993 meetings. Written statements were requested of all parties, including Dr. Pamintuan. In addition, the July 1993 meeting minutes reflect an additional complaint, from the chairperson of the OB/GYN Department, regarding Dr. Pamintuan's failure to answer her beeper, which required that he cover the delivery. Again, written statements of all those involved were requested. All of these incidents were forwarded to the Quality Assurance Committee for review. In addition, Dr. Rupp, the OB/GYN Department Chairperson, sent a letter to the Quality Assurance Committee reviewing the Discussion concerning Dr. Pamintuan at the August OB/GYN Department meeting.

In March 1994, at the request of the Quality Assurance Committee, the OB/GYN Department held a special meeting to discuss Dr. Pamintuan's handling of two cases.

The standard of care in the first case was deemed appropriate. The second case involved a threatened miscarriage. Since only two physicians other than those involved in the case were present at the meeting, Discussion was tabled until the April meeting.

At the April meeting,

[i]t was unanimous department consensus that[Dr. Pamintuan] should have performed a timely dilation and evacuation for the patient in question. Her failure to recognize and treat the apparent spontaneous miscarriage was not consistent with appropriate gynecological care. Action: A memo will be sent to the Quality Assurance Committee of the Board with this finding.

App. at B-377. The report concluded:

Administration has concern with the potential demonstration of inappropriate judgment [by] the above physician. Over the last 18 months there have been continued questions about her judgment and administration is concerned with safety of patients under this physician's care.

App. at B-377.

Besides Dr. Pamintuan's cases, other physicians' cases having complications were presented for review at the OB/GYN Department meetings. Like Dr. Pamintuan's, these cases were selected for review by the nurses. According to Dr. Pamintuan, during the time period January 1, 1992 through September 1994, there were "at least" twenty-four cases with complications involving OB/GYN physicians other than herself presented for "Morbidity Quality Assurance Review." Of these twenty-four cases, Dr. Pamintuan contended that "fifteen . . . involved morbidities that were more severe and reflected a lesser quality of care than were reflected in the two cases for which[she] was subjected to Professional Review Action by the Hospital Administration and its subordinate boards and committees." According to Dr. Pamintuan, "nearly all of the morbidities resulted after care provided by the three . . . Caucasian physicians in the OB/GYN Department." The minutes of the OB/GYN Department meetings,

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however, do not indicate that either the OB/GYN Department or Dr. Pamintuan (who was the reviewing physician in seven of the twenty-four cases) found quality of care issues in these cases. The minutes state, for the most part, that the level of care administered was "appropriate," there was "no problem," or the "standard of care was met." According to the minutes, Dr. Pamintuan was the only OB/GYN physician whose conduct warranted review by the Quality Assurance Committee.4

B. The Review Process

1. Quality Assurance Committee

In August 1993, upon the request of the OB/GYN Department, the Quality Assurance Committee5 reviewed Dr. Pamintuan's cases for the previous three years. The Quality Assurance Committee identified several areas of concern regarding Dr. Pamintuan's patient care. Subsequently, the Committee met with Dr. Pamintuan to discuss its findings and proposed recommendations. Although Dr. Pamintuan initially agreed with aspects of the Quality Assurance Committee's proposed recommendations, she ultimately rejected them, claiming that confidentiality had been breached. As a result, the matter was referred to the Executive Committee for review and action.

2. The Executive Committee6

In May 1994, the Executive Committee, finding the Quality Assurance Committee's recommendations unworkable, voted unanimously to suspend Dr. Pamintuan's clinical privileges pending further investigation. Dr. Pamintuan was notified by letter of the Executive Committee's decision. In response to a "Request for Investigation Concerning Possible Professional Review Action" submitted by the Quality Assurance Committee, the Executive Committee met with Dr. Pamintuan to discuss her suspension and the need for a formal investigation. At the meeting, the Executive Committee opted to reject Dr. Pamintuan's proposal for an informal intervention and voted unanimously to continue her suspension.

Rather than request a hearing, Dr. Pamintuan and Nanticoke Memorial agreed that she would...

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