Bulwer v. Mount Auburn Hosp.

• Decision Date: 24 September 2014
• Docket Number: No. 11–P–1583.,11–P–1583.
• Citation: 86 Mass.App.Ct. 316,16 N.E.3d 1090
• Parties: Bernard BULWER v. MOUNT AUBURN HOSPITAL & others.
• Court: Appeals Court of Massachusetts

86 Mass.App.Ct. 316

16 N.E.3d 1090

Bernard BULWER

v.MOUNT AUBURN HOSPITAL & others.¹

No. 11–P–1583.

Appeals Court of Massachusetts, Middlesex.

Argued Nov. 26, 2012.

Decided Sept. 24, 2014.

Sara Discepolo, Waltham, for the plaintiff.

Robert R. Hamel, Jr., for the defendants.

Present: BERRY, KAFKER, MEADE, SIKORA, & WOLOHOJIAN, JJ.²

Opinion

WOLOHOJIAN, J.

The plaintiff, Dr. Bernard Bulwer, an experienced physician and a black man from Belize, became a first-year resident at Mount Auburn Hospital (hospital) in August, 2005. He joined the residency program under a one-year contract, with the possibility of advancement to a second year of residency upon successful completion of the first. Eight months into the program, he was told that the hospital would not extend a second-year contract to him but that he would be allowed to continue his residency through the end of his first year. One month later, however, he was terminated. This suit followed, in which Bulwer alleges discrimination and retaliation based on his race and national origin in violation of G.L. c. 151B, breach of contract, defamation, and tortious interference with his contractual relationship with the hospital.³ Summary judgment entered in favor of the defendants on all counts. We conclude that the summary judgment record sufficed to entitle Bulwer to have a jury decide his discrimination and breach of contract claims, but that summary

judgment was properly entered on his remaining claims. Accordingly, we affirm in part and reverse in part.

1. The summary judgment record. In reviewing a grant of summary judgment, we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119, 928 N.E.2d 327 (2010). “[T]he court does not pass upon the credibility of witnesses or the weight of the evidence [or] make [its] own decision of facts.” Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281, 496 N.E.2d 625 (1986), quoting from Attorney Gen. v. Bailey, 386 Mass. 367, 370, 436 N.E.2d 139 (1982). Viewing the facts in this light, we then determine whether the moving party has affirmatively shown that there is no real issue of fact, “all doubts being resolved against the party moving for summary judgment.” Ibid. The record at hand, viewed with these principles in mind, showed the following.

a. Bulwer's background and the hospital's residency program. Bulwer is a black male of African descent whose nation of origin is Belize. In the spring of 2005, he contacted the hospital to inquire about a possible position in its internal medicine residency program. The director of the program, Dr. Eric Flint, interviewed Bulwer and believed him to be personable and capable. Flint followed up on the interview by verifying Bulwer's previous professional experience and confirming that he had performed satisfactorily at those positions. Based on his favorable impressions and the satisfactory results of his due diligence, Flint recommended that Bulwer be accepted into the program.

Bulwer was not a typical applicant to the hospital's residency program because he was already an experienced physician. Before joining the program, Bulwer had sixteen years of professional experience as a physician, and had certified postgraduate specialist training in nutrition, diabetes and metabolic medicine, cardiovascular disease, and echocardiography. He had authored or coauthored three books, and had over forty scientific publications.

The first year residency program typically consists of twelve one-month rotations, and there are forty-two residents in the program in any given year. The program is accredited by the Accreditation Counsel for Graduate Medical Education (ACGME)

and governed by that organization's requirements. As pertinent here,⁴ the ACGME required that:

“e. Conditions for reappointment;

“(1) Nonrenewal of agreement of appointment: [The hospital] must provide a written institutional policy that conforms to the following: In instances where a resident's agreement is not going to be renewed, [the hospital] must ensure that its ACGME-accredited programs provide the resident(s) with a written notice of intent not to renew a resident's agreement no later than four months prior to the end of the resident's current agreement. However, if the primary reason(s) for the nonrenewal occurs within the four months prior to the end of the agreement, [the hospital] must ensure that its ACGME-accredited programs provide the residents with as much written notice of the intent not to renew as the circumstances will reasonably allow, prior to the end of the agreement.

“(2) Residents must be allowed to implement the institution's grievance procedures as addressed below if they have received a written notice of intent not to renew their agreements.

“f. Grievance procedures and due process: [The hospital] must provide residents with fair and reasonable written institutional policies on and procedures for grievance and due process. These policies and procedures must address

“(1) academic or other disciplinary actions taken against residents that could result in dismissal, nonrenewal of a resident's agreement or other actions that could significantly threaten a resident's intended career development; and,

“(2) adjudication of resident complaints and grievances related to the work environment or issues related to the program or faculty.”

Bulwer entered into a one-year medical resident agreement (agreement) with the hospital covering the period of August 29, 2005, to August 28, 2006. The agreement provided that the hospital agreed to comply with the ACGME requirements. As noted above, one of those requirements was that the hospital have written grievance and due process policies, which it did. Certain of those policies are relevant to Bulwer's claims, and we set them out here:

“4. ... In instances where a resident's agreement is not going to be renewed, the training program will provide the resident with written notice of intent not to renew a resident's agreement no later than four months prior to the end of the agreement.... Residents are allowed to implement the due process procedure as addressed below if they have received a written notice of intent not to renew their agreements.

“...

“II. Due Process Procedures:

“...

“Upon request by a resident, program director, member of the teaching staff, administration or patient for review of an issue under the scope of this policy an Ad Hoc Committee will be assembled.

“Composition:

“The Ad Hoc Committee will be composed of the ACGME Designated Institutional Official/Director of Medical Education, the Chairs of the Departments of Medicine and Radiology, the Program Directors of the training programs in Medicine and Radiology, the houseofficer, and a houseofficer representative that is mutually agreed upon by the Director of Medical Education and the houseofficer under discussion.

“Fair Hearing:

“The resident is assured of the fundamental aspects of a fair hearing including written statement of the specific issues from the Department Chair, at least 5 days notice of the Due Process Committee meeting, the opportunity to be present and to rebut the evidence, and the opportunity to present any other information.

“...

“All matters upon which any decision is based must be introduced into evidence at the proceeding before the Ad Hoc Due Process Committee in the presence of the resident.... Appeal of the decision of the hearing is limited to matters introduced at the hearing and made available to the resident.”

b. Bulwer's performance in the program. Under this contractual framework, Bulwer began his residency. His first rotation was in the emergency department, where he received strong evaluations. For example, at least two physicians evaluated Bulwer as “outstanding” during this rotation, and commented that “Dr. Bulwer ... knows more cardiology and has better echo skills than I do, [is] professional, enthusiastic, [gives] great presentations, [and is a] pleasure to work with.” Five others rated him “above average,” commenting that he was “knowledgeable, responsible, [and had a] pleasant demeanor[, and e]xcellent work ethic,” that he was “very good, works hard [and is] excited to be at work and looks to improve every shift,” that he “[w]orks hard[, is a] [w]onderful person[, and g]reat with patients and staff,” and that he is “[v]ery knowledgeable, extremely hardworking and conscientious[, and h]as great rapport with fellow physicians and staff.”⁵ He was assessed to be mature and a pleasure to work with. Significantly, Dr. Gary Setnik, head of the emergency department, in response to a request that he assess Bulwer's performance over a period of months in the emergency department wrote:

“Dr. Bulwer is universally held in high regard by the staff I polled and by myself. He has been totally reliable, coming in early, and staying late on most shifts. He aggressively works to see as many patients as possible. His presentations are complete, his management plans appropriate, and his procedural skills very good. Aside from some very minor documentation issues, and his failure to assure that the admitting resident was called on one case, his performance has been outstanding. He is in the top 10% of the medical houseofficers who have rotated in the E[mergency] D[epartment] over the last several years.”

By contrast, Bulwer's evaluations during his next rotation through the medicine intensive care unit (MICU) were not of the

same sort. In that rotation, he received three strongly negative evaluations. That said, the assessment of Bulwer's performance in the MICU was not uniform. Dr. Soon–Il Song reported a positive view of Bulwer's performance in the MICU:

“His strengths were that he had procedural skills and knowledge base well above someone at an intern level. He also was pleasant to work with. He had a good sense of his own limitations,

...