Driscoll v. Stucker
| Decision Date | 04 February 2004 |
| Docket Number | No. 38,133-CA.,38,133-CA. |
| Citation | 865 So.2d 328 |
| Parties | Peter V. DRISCOLL, M.D., Plaintiff-Appellee, v. Fred J. STUCKER, M.D., et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Taylor, Porter, Brooks & Phillips by Thomas R. Peak, Baton Rouge, for Appellants.
Tutt, Stroud & Bordelon, L.L.C. by A.M. Stroud, Shreveport, Kent Masterson Brown, Christopher J. Shaughnessy, for Appellee.
Before BROWN, C.J., and GASKINS and CARAWAY, JJ.
Defendants are The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (Louisiana State University Health Sciences Center referred to hereinafter as "LSUHSC") and Dr. Fred Stucker, the director of the residency program in otolaryngology at LSUHSC.1 Plaintiff is Dr. Peter V. Driscoll, a graduate of the residency program, who was denied the required recommendation that would permit him to take the examination for board certification in otolaryngology. Finding a breach of contract and denial of due process, the trial court awarded plaintiff $780,000 for lost income and $75,000 in general damages, together with legal interest and costs. Defendants appealed. We amend and as amended, affirm.
In 1994, Dr. Peter Driscoll entered the six-year accredited residency program in otolaryngology at LSUHSC. In June 2000, Dr. Driscoll successfully completed the program. Graduation from such an accredited residency program and a recommendation from its program director are prerequisites for eligibility to take an examination to become board certified in otolaryngology.
On June 22, 2000, Dr. Stucker, who was the director of the LSUHSC's otolaryngology program, issued a final evaluation (exit letter) with a recommendation that plaintiff was worthy to take the examination for board certification. On June 30, 2000, plaintiff graduated from the program which, by the terms of his contract, ended his employment with LSUHSC. Plaintiff joined the staff at Minden Medical Center and was considering an offer from them for a job that paid $360,000 annually.
On August 22, 2000, plaintiff was notified by the American Board of Otolaryngology that he would not be permitted to sit for the board certification examination because, "we no longer have the required recommendation from your Program Director...." This was the first knowledge plaintiff had that the June 22 recommendation from Dr. Stucker had been rescinded.
Dr. Stucker had written a letter dated August 9, 2000, to the board withdrawing his previous recommendation. Gordon Rountree, plaintiff's attorney, requested, without success, copies of this letter several times from Dr. Stucker and Mickey Prestridge, the in-house attorney for LSUHSC. On October 3, 2000, Rountree met with Dr. Stucker in his office seeking a copy of the letter. At this meeting, Dr. Stucker told Rountree that plaintiff "would not be well served by pursuing this any further" and threatened that Dr. Driscoll would lose his license to practice medicine in Louisiana if he filed a lawsuit challenging Dr. Stucker's decision.
Only after plaintiff instituted this lawsuit and filed a motion for a preliminary injunction did Dr. Stucker and LSUHSC produce the August 9 letter. This occurred on March 26, 2002. An excerpt of the letter reads as follows:
This morning I was informed that Dr. Driscoll engaged in a Private Practice while in training. He used the institution's facilities and employed a V.A. scrub tech in a University facility on weekends to perform cosmetic surgical procedures. No departmental or hospital individuals were aware of this (to my knowledge). This is absolutely forbidden by the state and University. There is no question that Dr. Driscoll knew he was violating University rules. (Emphasis added).
Staff privileges and the job offer at Minden Medical Center required board eligibility. Because of Dr. Stucker's action, plaintiff was not "board eligible." Plaintiff accepted a one-year fellowship in cosmetic surgery in California where he earned $15,000 the year beginning November 2000 and ending November 2001.
On March 26, 2002, Dr. Driscoll filed suit against Dr. Stucker in both his official and individual capacities and against LSUHSC for denial of due process and breach of contract.
On November 22, 2002, plaintiff filed a motion for partial summary judgment which was granted on January 6, 2003. The trial court concluded that defendants denied Dr. Driscoll procedural and substantive due process of law and breached their contact with him.
Trial on the remaining issues was concluded on May 12, 2003. Thereafter, on May 30, 2003, the parties agreed to a consent judgment which resulted in Dr. Stucker issuing the necessary recommendation for plaintiff to be "board eligible" and thus cut off further damages. The trial court found that Dr. Stucker, in his official and individual capacity, and LSUHSC were liable and awarded plaintiff $780,000 in lost wages and $75,000 in general damages, together with legal interest and all taxable costs.
Defendants claim immunity under La. R.S. 13:3715.3. They contend that the decision made with respect to Dr. Driscoll was a "peer review committee" function.
La. R.S. 13:3715.3(C) provides as follows:
No member of any such committee designated in Subsection A of this Section or any sponsoring entity, organization, or association on whose behalf the committee is conducting its review shall be liable in damages to any person for any action taken or recommendation made within the scope of the functions of such committee if such committee member acts without malice and in the reasonable belief that such action or recommendation is warranted by the facts known to him. (Emphasis added).
The first step in addressing any claim of immunity under La. R.S. 13:3715.3 is for the court to determine whether the defendants are peer review committee members whose actions on which liability is premised were undertaken as part of the peer review process. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.07/05/94), 639 So.2d 730, rehearing denied, 96-1837 (La.11/08/96), 683 So.2d 258. If the defendants were peer review committee members engaged in the peer review process, it next must be determined whether there was an abuse of the peer review process, which is a fact question. Smith, supra. `Peer review' is the process by which physicians, hospitals and other health care providers review the performance of other physicians and, when warranted, discipline the reviewed physician for incompetence or unprofessional conduct. Smith, 639 So.2d 730 at 735, n. 2. Essentially, peer review deals with the question of the granting and delineation of medical staff privileges at a hospital or other health care facility which is conducted pursuant to and in accordance with the facility's medical staff bylaws, rules, and regulations.
The trial court found that the instant case was not a peer review situation. We agree. Dr. Driscoll had received the necessary recommendation for board eligibility, completed the residency program, and ended his employment at LSUHSC, when Dr. Stucker summarily and secretly revoked that recommendation. Dr. Driscoll did not possess, nor was he seeking, medical staff privileges at LSUHSC at the time of Dr. Stucker's actions. In fact, defendants go to great lengths to point out that Dr. Driscoll had graduated from the residency program and was no longer a resident or practicing physician at LSUHSC at the time of Dr. Stucker's August 9 letter.
Although LSUHSC's House Staff Manual provided for due process when adverse action is taken against a resident, which includes notice and the right to respond, Dr. Driscoll was neither notified nor provided any process with reference to Dr. Stucker's letter of August 9, 2000. Dr. Stucker and LSUHSC refused to even provide a copy of the August 9 letter for over two years, and then only produced the letter on the eve of a preliminary injunction hearing. Under these circumstances, Dr. Stucker's actions were not "peer review" within the meaning of La. R.S. 13:3715.3. Therefore, Dr. Stucker and LSUHSC are not entitled to La. R.S. 13:3715.3 immunity from liability for damages sustained by Dr. Driscoll.2
Defendants next contend that Dr. Driscoll did not possess a constitutional, statutory or contractually protected property or liberty interest in receiving a recommendation to the American Board of Otolaryngology. More specifically, they contend that a recommendation (that a candidate be permitted to sit for examination for board certification) is not a license, nor does the withholding (or rescission) of such recommendation by the board at defendants' request deny Dr. Driscoll the ability to practice medicine generally, or even to practice in his chosen specialty. Defendants claim that at most, the recommendation (which was withdrawn) represented a potential prospective enhancement to Dr. Driscoll's resumé.
The Fourteenth Amendment to the United States Constitution provides, in part, "nor shall any State deprive any person of life, liberty or property, without due process of law...." Similarly, Article I, § 2 of the Louisiana Constitution provides that no person shall be deprived of life, liberty, or property, except by due process of law. To assert the protections of due process, a claimant must show the existence of some property or liberty interest which has been adversely affected by state action. Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330 (La.1980); American Intern. Gaming Ass'n, Inc. v. Louisiana Riverboat Gaming Com'n, 00-2864 (La. App. 1st Cir.09/11/02), 838 So.2d 5; Johnson v. Southern University, 00-2615 (La. App. 1st Cir.12/28/01), 803 So.2d 1140. When protected interests are implicated, the right to some kind of prior hearing is paramount. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Where a person's good name,...
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Driscoll v. Stucker
...court in all respects, but modified the damage award, reducing Dr. Driscoll's lost wages claim to $540,000. Driscoll v. Stucker, 38,133 (La.App. 2 Cir. 2/4/04), 865 So.2d 328. In its affirmation of the trial court's judgment with regard to liability, the appellate court held the immunity af......
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