Gul v. Center for Family Medicine

• Decision Date: 25 February 2009
• Docket Number: No. 24860.,24860.
• Citation: 762 N.W.2d 629,2009 SD 12
• Parties: Samina GUL, M.D., Plaintiff and Appellant, v. CENTER FOR FAMILY MEDICINE and Dr. Earl Kemp, Defendants and Appellees.
• Court: South Dakota Supreme Court

762 N.W.2d 629

2009 SD 12

Samina GUL, M.D., Plaintiff and Appellant, v. CENTER FOR FAMILY MEDICINE and Dr. Earl Kemp, Defendants and Appellees.

No. 24860.

Supreme Court of South Dakota.

Argued September 29, 2008.

Decided February 25, 2009.

Shawn M. Nichols of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

R. Alan Peterson, Steven J. Morgans, Dana Van Beek Palmer of Lynn, Jackson, Shultz & Lebrun, PC, Sioux Falls, South Dakota, Attorneys for defendants and appellees.

GIENAPP, Circuit Judge.

[¶ 1.] Samina Gul, M.D. (Dr. Gul) commenced an action for breach of contract, defamation, and violation of due process against the Center for Family Medicine (CFM) and one of its physicians, Dr. Earl Kemp (Dr. Kemp). The parties filed cross motions for summary judgment, although Dr. Gul's motion was for partial summary judgment as to liability on the contract claim. The circuit court ruled in favor of CFM and Dr. Kemp on the defamation, due process, and breach of contract claims. The circuit court also ruled that Dr. Gul was entitled to summary judgment as to her last month of salary under the contract. Dr. Gul appeals the due process and breach of contract summary judgment rulings and we affirm.

FACTS AND PROCEDURE

[¶ 2.] CFM is affiliated with the University of South Dakota Medical School. In April 2004 Dr. Gul was accepted into CFM's medical residency program in the area of family medicine. Dr. Kemp, a family practice physician employed by CFM, supervised the residency program. Dr. Gul was accepted into the program on April 19, 2004, and signed a contract for the program on April 28, 2004. The contract was for a one-year term that was the first year of the three-year residency program.¹ Pursuant to the contract, Dr. Gul was paid a stipend for her services. Dr. Gul began her residency with CFM on June 26, 2004.²

[¶ 3.] Problems with Dr. Gul's work developed and Dr. Gul was advised on December 30, 2004, that she was receiving a Notice of Unsatisfactory Performance and was placed on probation. That document provided in part that there were concerns about Dr. Gul's professionalism, organizational skills, and problem-solving abilities. Additionally, there were concerns with Dr. Gul's proficiency in speaking and writing the English language.

[¶ 4.] On April 27, 2005, Dr. Gul was notified by CFM that her residency contract would not be renewed for another year. CFM provided Dr. Gul with a document titled Notice of Non-Renewal of Resident Contract for Dr. Gul (Notice of Non-Renewal) which explained the non-renewal decision. The document served as official notice that Dr. Gul's residency contract would not be renewed by CFM after June 30, 2005, and that she would not be receiving a certificate of completion for her first year of residency. The Notice of Non-Renewal referenced the granting of a remedial month. Dr. Gul was subsequently told to turn in her keys and badge, and her scheduled rotations were assigned to other residents. At that time Dr. Gul was informed by CFM that she would be paid through the month of May.

[¶ 5.] Dr. Gul was provided with the Residents Manual which was comprised of the various policies and guidelines pertinent to the residency program. The manual provided that if a resident was being considered for dismissal from the program, she could request a hearing before the Resident Oversight Committee (ROC) in order to contest the dismissal.

[¶ 6.] After receiving the Notice of Non-Renewal, Dr. Gul requested a hearing before the ROC, which was held a few weeks later. After the hearing, at which Dr. Gul was represented by counsel, the ROC voted sixteen to one to approve the non-renewal decision. In accordance with the procedure set forth in the Residents Manual, Dr. Gul appealed the ROC's decision to the Graduate Medical Education Committee. Dr. Gul was granted a hearing before that Committee, which was comprised of seven physicians who supervise medical residents. The Committee heard evidence provided by Dr. Gul and her attorney, and the Committee ultimately affirmed the decision of the ROC. Dr. Gul then appealed the decision to CFM's Board of Directors, which affirmed the decision not to renew Dr. Gul's residency contract.

[¶ 7.] Dr. Gul commenced an action against CFM and Dr. Kemp for defamation, breach of contract, and due process violations. The circuit court granted summary judgment in favor of CFM and Dr. Kemp on those claims while simultaneously granting summary judgment in favor of Dr. Gul for her last month's salary, that being the month of June. Dr. Gul is appealing the circuit court's decision granting summary judgment in favor of CFM and Dr. Kemp on the issues of breach of contract and a claimed denial of due process. The summary judgment as to the defamation claim was not appealed.

STANDARD OF REVIEW

[¶ 8.] This matter is before the Court on appeal from a grant of summary judgment. Summary judgment

shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

SDCL 15-6-56(c). "In reviewing a grant of summary judgment under SDCL 15-6-56(c) we must determine whether the moving party has demonstrated there is no genuine issue of material fact and [the moving party] is entitled to judgment as a matter of law." Hoglund v. Dakota Fire Ins. Co., 2007 SD 123, ¶ 7, 742 N.W.2d 853, 856. All reasonable inferences drawn from the facts must be viewed in favor of the nonmoving party and reasonable doubts should be resolved against the moving party. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). "The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law." Butler Mach. Co. v. Morris Const. Co., 2004 SD 81, ¶ 5, 682 N.W.2d 773, 776 (quoting Chilson v. Kimball Sch. Dist. No. 7-2, 2003 SD 53, ¶ 7, 663 N.W.2d 667, 669). "Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied" by the lower court. Wojewski v. Rapid City Reg'l Hosp., Inc., 2007 SD 33, ¶ 12, 730 N.W.2d 626, 631 (quoting Read v. McKennan Hosp., 2000 SD 66, ¶ 8, 610 N.W.2d 782, 784). The construction of a written contract is a question of law for the Court to consider. Dirks v. Sioux Valley Empire Elec. Ass'n, 450 N.W.2d 426, 427-28 (S.D.1990). Affirmance is proper if any basis exists which would support the circuit court's ruling. Breen v. Dakota Gear & Joint Co., Inc., 433 N.W.2d 221, 223 (S.D.1988). "A disputed fact is not `material' unless it would affect the outcome of the suit under the governing substantive law in that a `reasonable jury could return a verdict for the nonmoving party.'" Weitzel v. Sioux Valley Heart Partners, 2006 SD 45, ¶ 17, 714 N.W.2d 884, 891 (quoting S.D. State Cement Plant Comm'n v. Wausau Underwriters Ins., Co., 2000 SD 116, ¶ 9, 616 N.W.2d 397, 401).

ANALYSIS AND DECISION

ISSUE ONE

[¶ 9.] Whether there was a breach of the one-year residency contract.

[¶ 10.] "A contract is an agreement to do or not to do a certain thing." SDCL 53-1-1. The elements that must be met in a breach of contract claim are: (1) an enforceable promise; (2) a breach of the promise; and (3) resulting damages. Guthmiller v. Deloitte & Touche, LLP, 2005 SD 77, ¶ 14, 699 N.W.2d 493, 498.

[¶ 11.] The contract at issue provides that "CFM retains the right to terminate this contract at any time should the Resident, in the opinion of CFM, fail to act within his/her best professional capacity and ability, and commensurate with the highest standards of practice and ethics applicable to the Family Practice specialty." The contract also references a Residents Manual that provides "rules, regulations, policies and procedures." The pertinent language in the Residents Manual pertaining to dismissals states, "[w]hen a resident is being considered for dismissal, the Program Director or designee shall notify the resident, in writing, of the charges and of the proposed dismissal. The resident may request a hearing before the ROC."³

[¶ 12.] Dr. Gul contends that summary judgment was improper because CFM terminated her without a hearing prior to termination, in breach of the contract. However, the record shows otherwise.

[¶ 13.] The record demonstrates that Dr. Gul was notified in writing of the charges and of the proposed dismissal. On April 27, 2005, Dr. Gul received the Notice of Non-Renewal which summarized her unsatisfactory performance.⁴ The record also reveals other circumstances, prior to the April 27, 2005, notice, where Dr. Gul received notice, feedback, and opportunities to be heard regarding her deficient performance. In that regard, Dr. Gul was given a Notice of Unsatisfactory Performance in December 2004 which outlined her unsatisfactory performance. She discussed the items in this document with Dr. Kemp and another physician. At this time she was also placed on probation. The Residents Manual indicates that Dr. Gul could have requested a hearing before the ROC upon receipt of this notice, but she did not do so. After Dr. Gul received the Notice of Unsatisfactory Performance, she continued to receive evaluations and feedback and was given copies of her performance reviews which showed inadequate performance in several areas. Furthermore, the Notice of Non-Renewal on April 27, 2005, did not act as immediate termination. The document states that Dr. Gul's "residency contract will not be renewed after June 30, 2005."

[¶ 14.] After the Notice of Non-Renewal on April 27, 2005, Dr. Gul did not perform any duties in connection with her first-year residency contract except for some minimal duties in connection with finishing uncompleted medical reports. There does exist a factual...