Daniel v. American Bd. of Emergency Medicine
| Decision Date | 20 August 1992 |
| Docket Number | Civ. No. 90-1086A. |
| Parties | Gregory F. DANIEL, M.D., Plaintiff, v. AMERICAN BOARD OF EMERGENCY MEDICINE, et al., Defendants. |
| Court | U.S. District Court — Western District of New York |
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Jaeckle, Fleischmann & Mugel, Ralph L. Halpern, J. Edmund de Castro, Jr., of counsel, Buffalo, N.Y., for plaintiff.
Phillips, Lytle, Hitchcock, Blaine & Huber, Robert E. Glanville, of counsel, Buffalo, N.Y., for defendants.
On August 6, 1992, this Court filed an Order adopting Magistrate Judge Leslie G. Foschio's Report and Recommendation on defendants' motions to dismiss.
It has now come to the Court's attention that it misconstrued, in footnote one of the Order, one of the arguments advanced by plaintiff's counsel at oral argument, that is, that defendant Henry A. Thiede, M.D. had waived all objections to the Report and Recommendation. Although the adoption of the Report and Recommendation rendered this argument moot, for purposes of clarity, the original Order is vacated and the Clerk of the Court is directed to file the Amended Order attached hereto.
It is so ordered.
AMENDED ORDER
This matter was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(B), for report and recommendation on defendants' motions to dismiss. Magistrate Judge Foschio filed his Report and Recommendation on February 25, 1992, granting defendants' motions in part and denying them in part. Specifically, he recommended that defendants' motion to dismiss for lack of personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(2), be granted without prejudice as to all individually named defendants except Henry A. Thiede, M.D., a New York resident. He also recommended that defendants' motions to dismiss for lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1), and for failure to state a claim, pursuant to Fed.R.Civ.P. 12(b)(6), be denied.
Defendants' have filed objections to those parts of the Report and Recommendation that deny their Rule 12(b)(1) and 12(b)(6) motions. Plaintiff has filed no objections.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. The Court has reviewed the Report and Recommendation, the submissions of the parties, and has heard argument from counsel.1 Upon de novo review, the Court adopts the findings of the Report and Recommendation and orders that defendants' Rule 12(b)(1) and 12(b)(6) motions be denied.
In deciding a motion to dismiss, the court is required to accept plaintiff's allegations as true and to construe those allegations in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). The complaint will be dismissed only if "it appears beyond doubt" that plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
Applying these principles to this case, the Court finds that it has subject matter jurisdiction and that plaintiff has stated a claim for violations of sections 1 and 2 of the Sherman Act. 15 U.S.C. §§ 1, 2. The Court also finds that while plaintiff's cause of action for violations of New York's Human Rights Law, N.Y.Exec.Law § 290 et seq., is not as clearly alleged as the antitrust claims, and there is a question as to whether defendants are even subject to the law's provisions, at this point in the lawsuit, plaintiff has made sufficient factual allegations to withstand defendant's motion.2 Defendants' motions are denied for the reasons set forth by Magistrate Judge Foschio in his Report and Recommendation.
It is so ordered.
REPORT and RECOMMENDATION
This matter was referred to the undersigned by the Hon. Richard J. Arcara, District Judge, on April 24, 1991 for report and recommendation on any dispositive motions pursuant to 28 U.S.C. § 636(b)(1)(B). This matter is presently before the court pursuant to Defendants' motion to dismiss the amended complaint pursuant to Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure.
This lawsuit, originally filed on September 25, 1990 in New York State Supreme Court, Erie County, was brought by Plaintiff, an emergency medicine physician, following the American Board of Emergency Medicine's ("the Board") refusal to permit Plaintiff to take its examination to enable him to become certified as a Diplomate in emergency medicine. A Diplomate in emergency medicine is a physician who has fulfilled the prerequisite educational and experience criteria of the Board, along with passing the Board's certification examination. Physicians specializing in other medical areas may be certified as Diplomates ("Board-certified") in other disciplines, for example, the American Board of Internal Medicine.
Defendants removed this action to federal court on October 23, 1990. Plaintiff originally asserted causes of action against the Board for violations of the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution, and for a violation of the New York State Human Rights Law.
Following the Board's motion for dismissal of the complaint filed on October 25, 1990, Plaintiff filed an amended complaint on February 7, 1991, dropping the causes of action for violations of the due process and equal protection clauses and asserting two new causes of action under theories of antitrust for violations of Sections 1 and 2 of the Sherman Act, and adding the individual board members of the Board as defendants.
On April 5, 1991, Defendants filed a motion to dismiss the amended complaint against all parties for lack of subject matter jurisdiction, lack of personal jurisdiction, and failure to state a claim on which relief can be granted. Following the filing of briefs, oral argument was held before the undersigned on September 11, 1991.
For the reasons as stated below, I recommend that Defendants' motion to dismiss be GRANTED in part and DENIED in part.
Defendant, the American Board of Emergency Medicine, is a Michigan not-for-profit corporation that certifies Diplomates in the specialty of emergency medicine. The named individual Defendants are either officers or directors of the Board. The Board was established in 1976. At its inception, the Board had two modes of qualification for Diplomate status: (1) the "residency" mode, whereby the physician was required to complete an approved three-year residency training program in emergency medicine, and (2) the "practice track" mode, whereby the physician was required to complete 7,000 hours and 60 months of practice in emergency room medicine, with 24 months of continuing practice. In accordance with its original charter provisions, the Board discontinued the "practice track" mode on June 30, 1988 and now relies exclusively on the residency mode for qualification. In order to become Board-certified, once completing the initial qualification, physicians must pass a certification examination.
Plaintiff, a native of Trinidad, received his Doctor of Medicine degree in May, 1982 from the University of Wisconsin. Following the completion of his medical internship in June, 1983, Plaintiff began a residency in general surgery at the State University of New York at Buffalo. Plaintiff was licensed to practice medicine in New York State in July, 1984. His residency was completed in June, 1986, whereupon Plaintiff joined the emergency medicine department of Sisters of Charity Hospital in Buffalo, New York. In addition to Sisters Hospital, Plaintiff presently holds staff positions in the emergency medicine departments of St. Joseph's Medical Center Hospital in Cheektowaga, New York, and Sheehan Hospital in Buffalo, New York.
Plaintiff filed an application to take the examination given by the Board for qualification as a Board-certified specialist in emergency medicine on July 13, 1988. At the time of his application, Plaintiff had completed the 7,000 hours and 24 consecutive month requirements of the "practice track" mode, however he had only been practicing emergency medicine for 36 months instead of the required 60 months. Plaintiff, in his application, requested the Board to consider his internship hours, his residency hours which included eight months spent in emergency medicine, and that he had completed 5,500 hours of emergency medicine practice within the last two years. See, Affidavit of Benson Munger, Ph.D., dated October 24, 1990.
The Board gave Plaintiff some additional credit based upon Plaintiff's application requests, however, they determined that Plaintiff still fell short of the Board's requirement that a physician complete 60 months of emergency medicine practice prior to June 30, 1988 in order to sit for the examination. After Plaintiff contacted the Board on October 14, 1988 and learned that his application was being denied, he filed a letter with the Board, again requesting that additional hours from his internship and residency be credited to him. He also filed two other letters of support from two physicians with whom he had worked. See, Exhibits to Affidavit of Benson Munger, dated October 24, 1990.
Following review of the application by the Credentials Committee of the Board, on September 20, 1989, Plaintiff's application was again denied. On October 25, 1989, Plaintiff requested a reconsideration by the Credentials Committee. The Board's original decision was affirmed by the Credentials Committee on May 25, 1990. The Board sent Plaintiff a copy of its appeal procedures, however, Plaintiff did not appeal the decision administratively, but instituted this lawsuit on September 25, 1990 asking for declaratory relief, ordering the Board to allow him to take...
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