Gilbert v. Johnson

• Decision Date: 20 September 1976
• Docket Number: Civ. A. No. 16424.
• Citation: Gilbert v. Johnson, 419 F.Supp. 859 (N.D. Ga. 1976)
• Parties: Dr. Joseph GILBERT, Plaintiff, v. Donald JOHNSON and Dr. Marc J. Musser, Defendants.
• Court: U.S. District Court — Northern District of Georgia

419 F. Supp. 859

Dr. Joseph GILBERT, Plaintiff, v. Donald JOHNSON and Dr. Marc J. Musser, Defendants.

Civ. A. No. 16424.

United States District Court, N. D. Georgia, Atlanta Division.

July 1, 1976.

Supplemental Opinion September 20, 1976.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Sam F. Lowe, Jr., Mark Kadish, Atlanta, Ga., for plaintiff.

William Mallard, Asst. U. S. Atty., N. D. Ga., Atlanta, Ga., for defendants.

ORDER

MOYE, District Judge.

This case presents a challenge by Dr. Joseph W. Gilbert, Jr., a physician formerly employed at the Veterans Administration Hospital V.A.H. in Atlanta, Georgia, until September 1, 1971, to his subsequent removal from the position of Associate Chief of Staff ACOS and transfer from the V.A.H., Atlanta, Georgia.

At the pretrial conference held in chambers on November 13, 1975, this Court indicated that the Court would review the administrative record of the 38 U.S.C. § 4110 Disciplinary Board hearing held October-December 1973 in connection with Doctor Gilbert's removal and transfer i. e., item # 4 (page 12) of defendants' response filed July 3, 1975, to plaintiff's May 16, 1975, pretrial order. This Order constitutes the Court's review of the administrative record.

The facts of this protracted litigation are as follows:

Facts

The plaintiff, Dr. Joseph W. Gilbert, a trained cardio-thoracic surgeon with 17 years experience in his specialty, was recruited by the Veterans Administration to be Associate Chief of Staff for Education and Research ACOS at the Atlanta Hospital in late 1965. He joined the V.A. in that capacity in 1966 allegedly with the understanding that he would have patient care duties in his highly specialized field, cardio-thoracic surgery, besides administering the research program at the Atlanta V.A. Hospital.

The position of Associate Chief of Staff for Research and Education did not necessarily require a cardio-thoracic surgeon since the duties of the job were the conducting of research and administering the research program of the hospital.

Doctor Gilbert was excluded from patient care responsibilities during his tenure at the Atlanta V.A. Hospital, 1966-1970, despite the fact that thoracic surgeons were needed by the hospital and Doctor Gilbert was receiving additional compensation from the V.A. due to his Board certification and classification as a thoracic surgeon. Doctor Gilbert apparently experienced disappointment and frustration with his lack of patient care responsibility and ascribed this state of affairs to "institutional jealousy" by Drs. Julian A. Jarman, Hospital Director, and J. D. Martin, Chief of Surgery at Emory.

Doctor Gilbert requested Doctor Jarman to convene the Dean's Committee to review the controversy surrounding Doctor Gilbert's desire to have patient care duties during this period, but this was not done. Some friction, ill feeling and lack of cordiality arose between Doctor Gilbert and other V. A. staff members.

By March 1970, it became apparent to Dr. Lewis Jones, Chief of Staff at that time, that Doctor Gilbert's alleged "poor interpersonal relationships" with the V. A. staff had interfered with his administration of the Research Program at the hospital. In the narrative portion of his annual proficiency report on Doctor Gilbert for 1970, Doctor Jones wrote:

"The Research Program at this hospital does not approach the quality that is possible. It is my impression that there are few persons, if any, who would disagree with this estimate, including Dr. Gilbert himself. In my opinion, by far the most important reason for this failure has been Dr. Gilbert's inability to instill enthusiasm and his failure to encourage participation in research on the part of our staff. In fact, because of very poor interpersonal relationships, Dr. Gilbert has discouraged persons from even visiting the research areas of this hospital. Dr. Gilbert's unsatisfactory relations extend outside this hospital to involve persons in the Medical School including the Chairman of Departments."

Doctor Jones's proficiency report continued:

"For the most part, information about research activities has been limited to the research areas because Dr. Gilbert has secluded himself within his office and laboratory. Everyone agrees that Dr. Gilbert has a brilliant mind and an extraordinary ability to express his thoughts both verbally and in writing; however, his extreme egocentricity makes it almost impossible for him to sensibly perceive and interpret what others are thinking or saying. It seems to me that this is the real basis for his extremely poor administrative ability. He would probably function better as an independent investigator, relieved of administrative responsibilities. In my opinion, it is not possible at this point for Dr. Gilbert to reconstitute any worthwhile relationships at this station which he may have had in the past or to generate new ones. I see no way that the research program at this hospital can profit from his continued presence. . . ."

Doctor Gilbert rebutted vigorously these allegations at his subsequent hearing, and attributed these bad reports to jealousy and petty motives on the part of his superiors.

The Court notes that the Disciplinary Board found in its "Report of Findings" that the breakdown in communications with the staff might not have been caused entirely by Doctor Gilbert:

". . . Dr. Smith in testifying on Specification # X111, brought out Dr. Gilbert's disappointment and frustration over his failure to gain a significant appointment at the V. A. Hospital, due in major part to resistance from chairman and members of the EUSM Department of Surgery. The Board was never able to determine the basis for this attitude, which became a source of increasing frustration for Dr. Gilbert and no doubt contributed to many of the interpersonal difficulties he experienced."

In contrast to Doctor Jones's view of Doctor Gilbert, a "site visit report" or "peer review" report on May 15, 1969, concerning Doctor Gilbert's management of the research program at the V. A. H. described Doctor Gilbert as

"a very creative, dynamic and aggressive individual, but, functioning alone, he has brought about piecemeal and slow progress . . . Dr. Gilbert, apparently almost single-handedly, has performed the real selection of programs, enticement of investigators (which have been few) to the program, and monitoring of the varied projects. His efforts have seemingly provided the communications between investigators after the initial approach of cross-fertilization of ideas failed because of lack of attendance at research conferences."

The site visit report appeared to lift some of the onus for the sluggishness of the V. A. Hospital's Research Program from Doctor Gilbert's shoulders when it noted:

"Institutional scientific direction for the Research Program is lacking. Local facilities in Atlanta . . . have been virtually neglected as possible sources of research collaboration or advice. A negative attitude toward research, prevailing in the past at the VAH and to some degree within some Emory clinical departments, has contributed to the small interest in research in the past of the faculty, staff or house staff of the VAH . . ."

Nevertheless, the remarks of Dr. Lewis Jones represented the hospital management's view of Doctor Gilbert's problems at that time and thereafter. This viewpoint, that Doctor Gilbert's "personality problems" were the major cause for the Research Program's failure to get off the ground, became the basis for Doctor Jarman's decision in April 1970 to relieve Doctor Gilbert of his duties as Associate Chief of Staff, although retaining Doctor Gilbert on the Veterans Administration payroll for the purpose of continuing his own research. This action was followed up by a May 6, 1970 letter by Doctor Jarman to the Veterans Administration wherein he requested Doctor Gilbert's reassignment to another station due to the progressive breakdown of Doctor Gilbert's relationships with "almost everyone in this hospital and Emory."

On September 22, 1970, Doctor Jarman assigned Doctor Gilbert to the examination of veterans in connection with pension and compensation claims, an inferior position which allegedly was within the capability of a senior medical school student or intern, and which has been characterized by Doctor Gilbert and the Fifth Circuit Court of Appeals as "menial" and "totally unrelated to his highly-specialized field of cardio-thoracic surgery." Gilbert v. Johnson, 490 F.2d 827, 829-30 (5 Cir. 1974).

Although Doctor Gilbert was willing to do pension and compensation examinations as a part-time activity, his belief that accepting the job as a full-time position, when he was a skilled cardio-thoracic surgeon with 17 years' experience in that specialty, would have been extremely damaging to his career, led him to refuse the position and take a leave of absence without pay commencing November 30, 1970, in order to protect his reputation from the injury that he alleges it would receive from accepting the assignment. Moreover, at this time he was attempting to get a review of his situation and a hearing that he felt was required by the tenure rules of Emory University.

Doctor Gilbert spent his four-month leave of absence without pay—November 1970 to March 1971—in Leeds, England, where he took refresher training in cardio-vascular surgery.

Upon his return from Leeds in March 1971, Doctor Gilbert was ordered transferred to the Des Moines, Iowa, V. A. Hospital for training in general surgery. Doctor Gilbert regarded this as a further attempt to strip him of his cardio-thoracic surgery specialty. It was undisputed on the record that cardio-thoracic surgery is a separate and distinct specialty from general surgery. Doctor Gilbert protested this transfer by letters dated June, July, and August 1971. He claimed that he was entitled to a hearing under the Veterans Administration statutes and...