Judice v. Hospital Serv. Dist. No. 1, Civil Action No. 95-986.

• Decision Date: 13 March 1996
• Docket Number: Civil Action No. 95-986.
• Citation: 919 F. Supp. 978
• Parties: Donald J. JUDICE, M.D. v. HOSPITAL SERV. DIST. NO. 1, et al.
• Court: U.S. District Court — Eastern District of Louisiana

919 F. Supp. 978

Donald J. JUDICE, M.D. v. HOSPITAL SERV. DIST. NO. 1, et al.

Civil Action No. 95-986.

United States District Court, E.D. Louisiana.

March 13, 1996.

Louis Leo Robein, Jr., Robein, Urann & Lurye, Metairie, LA, for plaintiff Donald Joseph Judice, M.D.

Daniel J. Walker, Watkins, Walker & Eroche, Houma, LA, Walter W. Christy, Stephen Mark Klyza, Kullman, Inman, Bee, Downing & Banta, P.C., New Orleans, LA, J. Trent Scofield, Kullman, Inman, Bee, Downing & Banta, P.C., Birmingham, AL, for defendants Hospital Service District No. 1 of the Parish of Terrebonne, a Political Subdivision of the State of Louisiana, Terrebonne General Medical Center, an Instrumentality of Hospital Service District No. 1 of the Parish of Terrebonne.

ORDER AND REASONS

FELDMAN, District Judge.

Before the Court is defendants' motion for summary judgment. For the reasons that follow, the motion is GRANTED.

Background

This case is brought under the Americans with Disabilities Act of 1990 (ADA). In 1985, Donald Judice, a licensed neurosurgeon, held staff privileges at Terrebone General Medical Center (TGMC). TGMC, a defendant here, operates a 261-bed acute care hospital in Houma, Louisiana.¹ In late 1985, Dr. Judice exhibited severe symptoms of alcoholism. In March of 1986, a surgical error he committed may have caused the death of a patient, and certainly troubled his colleagues enough to focus on his alcohol abuse problem. (Dr. Judice denies that his alcoholism played any part in the patient's death, but he admits that others on the staff were concerned.) His denial notwithstanding, soon after, he requested a leave of absence and entered inpatient treatment in Hattiesburg, Mississippi.

Three months later, the doctor successfully reapplied for staff privileges at TGMC. He participated in after-care treatment and resumed his normal duties at the hospital.

In 1993, however — seven years after his previous troubles — Dr. Judice's alcohol addiction resurfaced. According to the plaintiff, the deaths of two close friends, combined with the stresses of his practice caused his relapse to drinking. Despite his false denials, hospital administrators became concerned that he had relapsed; in fact, a blood test taken on the morning of February 24, 1994, — just before a scheduled surgery — indicated the presence of alcohol. TGMC summarily suspended Dr. Judice's staff privileges. The Louisiana State Board of Medical Examiners (LSBME) soon followed suit. The Medical Society's Impaired Physicians Program recommended that Dr. Judice enter treatment once again.

Dr. Judice started still another in-patient program at Palmetto Addiction Recovery Center on March 22, 1994. His recovery was rocky: he relapsed during a weekend furlough in June, and spiralled into several days of such severe depression that he even contemplated suicide. At the insistence of a friend, he re-entered the Palmetto program again, and, on August 4, successfully completed it. The report of Dr. Cook, the plaintiff's treating physician at Palmetto, recommended his return to medical practice, but only under certain limiting conditions. See Defendants' Ex. 24 (Aug. 31, 1994, Letter from Dr. Cook). Dr. Cook sent copies of his report to TGMC and to the state licensing board. In October, 1994 the state board reinstated Dr. Judice, subject to six detailed conditions that were stated in a consent order signed by Dr. Judice. Defendants' Ex. 25.

The consent order reflected Dr. Cook's prognosis and conditional supervision. The monitoring conditions demanded: (1) that Dr. Judice continue to participate in outpatient treatment; (2) that Dr. Cook make quarterly reports to the board concerning the doctor's progress and fitness; (3) Dr. Judice's complete abstinence from alcohol or any non-prescribed mood-altering substances; (4) restrictions in his work activities, including limitations on the number of his offices and hospitals, weekly work-hours, on-call time, number and type of surgical procedures, and litigation-related medical activities (such as trial and deposition testimony); (5) that another doctor monitor and review Dr. Judice's medical performance and report regularly to the board; and (6) that Dr. Judice investigate career opportunities in his field that provided "more structure" than his present practice, such as teaching. Id. At best, these oversight conditions were cautious of his ability to safely practice neurosurgery. One even inferred that he should consider teaching, rather than operating. The board decreed that the oversight conditions would be effective for five years following reinstatement, and required an interim assessment of the order after two years. The board, in a later communication to the defendants, noted that the conditions of the consent order "are not intended as punitive sanctions, but in aid of Dr. Judice's continuing recovery ... to ameliorate stresses in his professional practice which might undermine his recovery." Plaintiff's Ex. 2 (Att. 2). They would, obviously, safeguard Dr. Judice from the regular stresses of his surgical practice; they sought to insure that still another relapse would not occur. They recognized that stress could cause Dr. Judice to relapse.

One week after the board issued the consent order, Dr. Judice applied to TGMC for reinstatement of his staff privileges. Over the next month the hospital's Executive Committee reviewed his application and made inquiries of its liability insurers. The insurers confirmed that reinstatement of Dr. Judice's privileges would have no effect on the hospital's premiums, which were fixed. But hospital management remained concerned.

During the same period, the hospital's Physician Health Committee suggested that the hospital obtain a second opinion regarding Dr. Judice's condition and his risk of relapse. The hospital's counsel, Daniel Walker, sketched the situation for Dr. Lee McCormick at a national conference; Dr. McCormick advised that TGMC would be wise to obtain a second opinion, both for reasons of liability, and for quality assurance and reputation. Mr. Walker was impressed and contacted Dr. Douglas Talbott, an Atlanta addictionologist, for details regarding such a "fitness-for-duty" evaluation. Dr. Talbott, an admitted specialist in such matters, explained that the evaluation required four days of intensive review concerning the patient's history and medical, psychological, emotional, and neurological condition. After a December 5, 1994 meeting, the head of the TGMC Physician Health Committee wrote to tell Dr. Judice that the hospital wanted him to undergo this four-day evaluation at the hospital's expense. The plaintiff resisted the necessity of a second opinion, and his lawyer sent a letter to the hospital board outlining his concerns under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. The hospital stood firm; on March 15, 1995 it recommended the doctor's reinstatement, conditioned upon a favorable report from a four-day evaluation by a specialist. Dr. Judice refused to agree and, ten days later, he sued TGMC and the hospital district, claiming that the hospital's request for a second opinion discriminated against him in violation of subchapters II and III of the ADA.

It is uncontested that, at the time of the committee's decision and at all times thereafter, Dr. Judice has fully complied with all restrictions placed on his practice. He has remained in recovery throughout. Indeed, the plaintiff has obtained hospital privileges at two other hospitals, Thibodeaux and Northshore, and has performed without incident. He also notes that several months after this lawsuit was filed, the Louisiana State Board of Medical Examiners amended the consent order to remove all restrictions on Dr. Judice's practice and work-related activities. But the State Board retained the aftercare treatment and abstinence conditions. See Plaintiff's Ex. 1 (Att. 30). The defendants now move for summary judgment.

Law And Application

I. Summary Judgment

Federal Rule of Civil Procedure 56 teaches that summary judgment is appropriate if the record discloses that no genuine issue as to any material fact exists, and that the movant is entitled to judgment as a matter of law. A genuine issue of fact exists only "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Summary judgment is proper if the opponent fails to establish an essential element of any claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Yet, the Fifth Circuit cautions us that we must "resolve all doubts and draw all reasonable inferences in favor of the non-movant" to determine whether the movant is entitled to judgment as a matter of law. Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir.1994).

II.

To make out a prima facie case under the ADA, one must establish: (1) that he is a qualified individual with disabilities; (2) that he was discriminated against by a public entity; and (3) that the discrimination occurred because of his disability. Tyler v. City of Manhattan, 857 F.Supp. 800 (D.Kan. 1994). In this case, Dr. Judice claims alternatively under subchapter II (covering public services) and subchapter III (covering public accommodations) of the ADA. The defendants first challenge the applicability of both subchapters II and III; next, they dispute the merits of the plaintiff's discrimination claim. The Court will address each of these contentions in turn.

A.

TGMC first attacks the plaintiff's claim under subchapter II of the ADA.² Subchapter II of the ADA prohibits any "public entity" from subjecting any "qualified individual with a disability" to discrimination on the basis of that disability.³ 42 U.S.C. § 12132 (1990). The defendants agree that the district and the hospital are "public entities." And they do not appear to dispute...