Driscoll v. Stucker
| Decision Date | 19 January 2005 |
| Docket Number | No. 2004-C-0589.,2004-C-0589. |
| Citation | 893 So.2d 32 |
| Parties | Peter DRISCOLL, M.D. v. Fred J. STUCKER, M.D., et al. |
| Court | Louisiana Supreme Court |
Taylor, Porter, Brooks & Phillips, LLP, Thomas Robert Peak, Baton Rouge, for applicant.
Tutt, Stroud & Bordelon, LLC, Shreveport, Ansel Martin Stroud, III; Law Office of Kent Masterson Brown, Kent Masterson Brown, Pro Hac Vice, Christopher J. Shaughnessy, Pro Hac Vice, for respondent.
This case concerns the liability and damages of a medical school and its supervising doctor that improperly causes a medical resident to be ineligible to sit for the board examination in the resident's specialty. More specifically, we are called upon to address the question of whether a medical doctor who successfully completes a residency program in otolaryngology has a property interest in receiving a letter of recommendation from his medical school that is a prerequisite for taking the written examination to make him a specialist in that field of medicine, and whether the decision to grant that letter falls within the concept of peer review immunized in La.Rev.Stat. Ann. § 13:3715.3. In making these determinations, we further address the question of what due process rights must be afforded to an individual when the medical school withdraws its letter of recommendation after the resident completes his course of study and is no longer in the employ of the medical school. Finding no error in the lower courts' analysis of all but one of these difficult and fact-intensive questions, we affirm in all respects except the lower courts' assessment of individual liability to one member of the peer review committee.
In 1994, Dr. Peter V. Driscoll (Dr. Driscoll), a 1993 graduate of the Robert Wood Johnson Medical School in New Jersey, entered the Residency Program in Otolaryngology at Louisiana State University Health Sciences Center (LSUHSC) in Shreveport, Louisiana. LSUHSC represented the following to prospective residents in a brochure entitled OTOLARYNGOLOGY HEAD & NECK SURGERY RESIDENCY PROGRAM, LOUISIANA STATE UNIVERSITY MEDICAL CENTER SHREVEPORT:
Each resident is board eligible upon completion of the program. The American Board of Otolaryngology has certified the majority of its residents who have matriculated through the program.
The LSUHSC Residency Program in Otolaryngology was a six year program: the first year was spent in General Surgery training; the second was a transitional year that entailed rotation through numerous specialties, including otolaryngology; the remaining four years consisted of full time otolaryngology training, each year entailing more responsibilities.
Dr. Fred J. Stucker (Dr. Stucker) was the Program Director and Chairman of the Residency Program in Otolaryngology. There is a close relationship between program schools and the Accreditation Council for Graduate Medical Education (ACGME). In that regard ACGME issues requirements for medical institutions that provide medical education in otolaryngology. Among the responsibilities of the Program Director is "implementing fair procedures, as established by the sponsoring institution, regarding academic discipline and resident complaints and grievances." PROGRAM REQUIREMENTS FOR RESIDENCY EDUCATION IN OTOLARYNGOLGY § III(A)(2)(H) (June 1996).
Despite brief probationary periods during Dr. Driscoll's second and fourth residency years,1 he successfully remediated his deficiencies to the satisfaction of LSUHSC, and timely completed his six years of residency training at LSUHSC in June 2000. On June 22, 2000, Dr. Stucker provided Dr. Driscoll his final written evaluation/exit letter as required by the ACGME standards. In addition, Dr. Stucker as Chairman of the Residency Program and Timothy S. Lian, M.D., Program Director of the Residency Program, provided Dr. Driscoll a written recommendation, describing Dr. Driscoll "as a person of high moral character and worthy of examination by the American Board of Otolaryngology." Thus, in keeping with LSUHSC's representations regarding the successful completion of the Residency Program, Dr. Driscoll was "board eligible" and entitled to take the board certification examination of the American Board of Otolaryngology. Pursuant to procedure, Dr. Driscoll forwarded the LSUHSC recommendations to the American Board of Otolaryngology, paid his application fee of $2,250, and applied to take the next board examination in otolaryngology.
Just prior to graduation from LSUHSC, the Minden Medical Center offered Dr. Driscoll a three-year contract position as an otolaryngologist at an annual salary of $360,000. While contemplating this offer, Dr. Driscoll applied for and received temporary medical staff privileges at Minden Medical Center. Staff privileges, however, were only temporarily granted because the medical center requires its staff members to be board eligible in their specialty to maintain staff privileges and participate as active members of its medical staff.
In the first part of August 2000, Kay Carter, a nurse at the V.A. Hospital where Dr. Driscoll provided supervisory duties in otolaryngology during one of his years of residency,2 told Dr. Stucker that Kevin Williams, a V.A. scrub technician, told her Dr. Driscoll had been performing cosmetic surgery in a closed clinic. Nurse Carter also told Dr. Stucker she had seen dirty LSUHSC equipment trays at the V.A. after weekends, and noticed missing supplies from the V.A. She further told Dr. Stucker of requests to her from Williams and Dr. Driscoll for preoperative narcotics.
Dr. Stucker, who was also aware of missing equipment and surgical staples from LSUHSC, contacted Dr. Driscoll at the Minden Medical Center about Nurse Carter's allegations. After initially denying he performed surgical procedures in the closed LSUHSC clinic, Dr. Driscoll admitted he once performed a closed nasal reduction and removed a lesion over a friend's eye on a weekend, but asserted he had not charged the patient for his services, he had generated a medical chart for the procedure, and he had done no other medical procedures.
On August 9, 2000, Dr. Stucker sent the following letter to Gerald B. Healy, M.D., the Executive Vice-President of the American Board of Otolarygology:
Sincerely /s/ Fred J. Stucker, M.D., FACS
Dr. Driscoll was unaware of Dr. Stucker's communication with the American Board of Otolaryngology.3
In an August 10, 2000 memo from Dr. Stucker to the LSUHSC faculty regarding Dr. Driscoll, Dr. Stucker asked that they sign the following:
(Emphasis added).
Each faculty member signed Dr. Stucker's memo.
On August 22, 2000, the American Board of Otolaryngology informed Dr. Driscoll by letter that he would not be permitted to sit for the written examination in otolaryngology.4 The body of the letter reads as follows:
The Credentials Committee of the American Board of Otolaryngology has evaluated your application for the certification examination. Based on the information in that application, additional information received from your Program Director at the School of Medicine in Shreveport, Louisiana, and the fact that we no longer have the required recommendation from your Program Director, we must inform you that your application to take the examination is denied for failure to meet the Board's qualifications for taking the examination.
(Emphasis added).
Realizing he was no longer board eligible, a requirement for staff privileges at the Minden Medical Center, Dr. Driscoll could not accept the offer of employment made to him. Instead, he accepted a one year fellowship in cosmetic surgery in California, earning $12,000 per year from November 2000 to November 2001.
Dr. Driscoll, who had not yet seen Dr. Stucker's letter to Dr. Healy, first attempted to obtain a copy of the letter from the American Board of Otolaryngology; they directed him to talk to Dr. Stucker. Dr. Driscoll then telephoned Dr. Stucker ten to fifteen times to discuss the withdrawal of his earlier recommendation and to obtain a copy of Dr. Stucker's letter to Dr. Healy. Dr. Stucker did not return Dr. Driscoll's calls. Eventually, Dr. Driscoll hired Gordon Rountree, a Shreveport attorney, to obtain a copy of Dr. Stucker's withdrawal letter and to attempt to address the matter. After Dr. Stucker refused to provide Rountree with a copy of the letter, Rountree met with Dr. Stucker on October 3, 2000, in Dr. Stucker's office. Dr. Stucker refused to provide Rountree with a copy of the letter. Rountree testified Dr. Stucker further said Dr. Driscoll "would not...
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...25. Such action or recommendation should also be taken “within the scope of the functions of such committee.” See Driscoll v. Stucker, 2004–0589 (La.1/19/05), 893 So.2d 32, 46. 26. HCQIA does not provide a private cause of action to an aggrieved physician for actions taken in a peer review.......
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