Lurie v. Mid–atl. Permanente Med. Group

• Decision Date: 31 May 2011
• Docket Number: Civil Action No. 06–01386 (RCL).
• Citation: 787 F.Supp.2d 54
• Parties: Dean Kevin LURIE, M.D., Plaintiff,v.MID–ATLANTIC PERMANENTE MEDICAL GROUP, P.C., Defendant.
• Court: U.S. District Court — District of Columbia

787 F.Supp.2d 54

Dean Kevin LURIE, M.D., Plaintiff,

v.MID–ATLANTIC PERMANENTE MEDICAL GROUP, P.C., Defendant.

Civil Action No. 06–01386 (RCL).

United States District Court, District of Columbia.

May 31, 2011.

James S. Bubar, Washington, DC, for Plaintiff.R. Michael Smith, Charles Robert Bacharach, Gordon Feinblatt Rothman Hoffberger & Hollander LLC, Baltimore, MD, James S. Bubar, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Before the Court is plaintiff's Motion to Alter or Amend Judgment. Upon consideration of the Motion, the Opposition thereto, the Reply brief, applicable law, and the entire record, the Court will deny the Motion for the reasons that follow.

I. FACTUAL BACKGROUND

Dr. Kevin Lurie worked as a surgeon for Mid–Atlantic Permanente Medical Group (“Mid–Atlantic”) or its predecessor company from 1988 until he was fired in October 2005. Lurie Dep. 17, 187, Oct. 6, 2008, ECF No. 68–4. Mid–Atlantic doctors treat patients at over thirty Mid–Atlantic–run medical centers in Virginia, Maryland, and the District of Columbia, as well as certain other hospitals in the area. Cahiff Aff. ¶ 4, Nov. 21, 2008, ECF No. 68–3. Dr. Lurie had a thriving surgical practice, specializing in general and vascular surgery and treating patients throughout D.C. and Maryland. E.g., Lurie Dep. 6. Dr. Lurie was also the principal investigator on clinical trials to develop a new medical device, a combination graft catheter system, that would aid human dialysis. Id. 234–35.

After working at the Washington Health Center (“WHC”) in the District of Columbia for three years, Dr. Lurie began to question the quality of Mid–Atlantic's medical care. Id. 85–86. Dr. Lurie was disturbed by what he believed were “wide variations from [the] standard of community care” that were—in his eyes—“perhaps negligent and malpractice.” Id. at 86. In addition to being troubled by other doctors' treatment of their own patients, as any concerned colleague would be, Dr. Lurie was also troubled by how WHC doctors and staff treated his own patients. To remedy the problem, Dr. Lurie made a presentation to the hospital's surgical oversight committee. Id. at 67–74.

Dr. Lurie's presentation was fiercely critical. Not only did Dr. Lurie tell the committee that “patients were treated badly and in an unsafe fashion,” but he also stated that the hospital treated Mid–Atlantic physicians like “second-class citizens.” Id. at 75. According to Dr. Lurie, WHC provided “poor,” “incompetent,” and perhaps even “dangerous” staff coverage to doctors affiliated with Mid–Atlantic; all seemingly valid grounds for protest. Id. at 74. Yet upon hearing of Dr. Lurie's presentation, Mid–Atlantic scolded Dr. Lurie and warned him not to repeat his “destructive” protests, because they jeopardized Mid–Atlantic's “efforts to build a constructive working relationship with WHC.” Mem. from Dr. Manning to Dr. Lurie, July 11, 2001, ECF No. 68–7. The facts do not indicate whether Dr. Lurie continued to complain, but he certainly never reported or threatened to report these issues to governmental bodies or other external entities. Lurie Dep. at 218–21.

On top of his difficulties with the hospital staff and administration, Dr. Lurie also did not get along with his colleagues, who he described as “inexperienced.” Id. at 116. The other doctors and surgical residents had personal gripes with Dr. Lurie too, so much so that the Chairman of Surgery, Dr. Kirkpatrick, stated that Dr. Lurie's mere presence “incites ... discord, hyperbole, and increasing tension,” as if he walked about with an air of dissonance. Letter from Dr. Kirkpatrick to Dr. Manning, June 22, 2001, ECF 68–6.

The reason for this tension is unclear. On the one hand, Dr. Lurie suggests it was a reaction to his repeated safety and quality of care complaints—a reaction by those who resented Dr. Lurie's purportedly constructive criticism. Lurie Dep. 85–86. On the other hand, Dr. Kirkpatrick maintains that “Dr. Lurie's practice style in and out of the operating room has created tension and concern among the surgical residents.” Letter from Dr. Kirkpatrick to Dr. Manning, June 22, 2001. In other words, the way in which Dr. Lurie practiced medicine was somehow off-putting and perhaps even unsafe. Dr. Kirkpatrick further suggested that Dr. Lurie's criticisms were meant to “strike back” against colleagues' belief that he was “an ‘unsafe’ surgeon.” Id. Whatever the reason, Dr. Lurie and his superior each ascribed the tense atmosphere to the hospital or Dr. Lurie, respectively. To restore the smooth operation of WHC's surgical department, Dr. Lurie was reassigned to Holy Cross Hospital in Silver Spring, MD. Id.; Lurie Dep. 85–86.

Nonetheless, Dr. Lurie was transferred back to WHC in 2003 when the hospital needed more experienced surgeons. Lurie Dep. 102. Upon his return, Dr. Lurie continued to have problems with other doctors. Again, Dr. Lurie complained about the quality of care, and again, his superior attributed the tension to Dr. Lurie's failure to “seek and gain the respect of the resident staff.” Letter from Dr. Kirkpatrick to Dr. Manning 2–3, Sept. 9, 2003, ECF No. 68–8. Within a few short months of Dr. Lurie's return, Dr. Kirkpatrick warned Dr. Lurie that he was engaged in “a crescendo of abusive behavior.” Letter from Dr. Kirkpatrick to Dr. Lurie 2, Nov. 6, 2003, ECF No. 68–9. It was as if Dr. Lurie had never left: his actions perpetuated a “persistent breakdown in relations with the surgical residency dating back at least to 2001.” Id. at 1. According to Dr. Lurie, he “did not get along with the surgical residents, because [he] didn't think it was safe for them to scrub with [him].” Lurie Dep. 116. Indeed, “many of the surgeons ... got fired ... because they weren't performing up to par.” Id. at 117. On account of these problems, and despite WHC's need for more experienced surgeons, Dr. Lurie was transferred to another D.C. site, Mid–Atlantic's North Capital Street center. Id. at 119–20.

Later in November 2003, the discord between Dr. Lurie and Mid–Atlantic peaked. A quality review committee ordered Dr. Lurie to follow a “performance improvement plan” that required him to—among other things—“refrain from blaming others” for work-related incidents. Performance Improvement Planning Form, Nov. 24, 2003, ECF No. 68–11. Dr. Lurie disputes this assessment, claiming that the committee members would “beat on the drum ... to find something they didn't like and cite [him]” for it; in Dr. Lurie's case, this was his commitment to raising quality of care issues. Lurie Dep. 98. According to Dr. Lurie, the committee's sole function was actually to “intimidate physicians” who raised quality of care issues. Id. at 99.

Eventually, the beleaguered Dr. Lurie was transferred in 2004 to Mid–Atlantic's Largo, Maryland center. Id. at 119–20. But the behavioral problems continued there, too. A few months before he was fired, Dr. Lurie was asked to leave a training session for being “uncooperative and disruptive.” Written Warning Letter from Dr. Schwartz to Dr. Lurie, May 26, 2005, ECF No. 68–14. Again, Dr. Lurie blamed the trainer and his superior for blowing the incident out of proportion. According to Dr. Lurie, he had been asked to leave because of racial prejudice, his age, and because he had been reading a newspaper with his friend's son's obituary. Lurie Dep. at 183–84, 186–87. Dr. Lurie continued to regularly see patients in D.C. until his discharge in 2005. Id. at 119. This work consumed a small fraction of his time and did not involve surgery. Id. When he was fired, Dr. Lurie was also seeing patients at Holy Cross Hospital in Silver Spring, Maryland. Id. at 118. In October 2005, Dr. Lurie was terminated. Id. at 120.

Mid–Atlantic claims it fired Dr. Lurie for his disciplinary problems and for allegedly falsifying time sheets. Mem. Supp. Def.'s Mot. Summ. J. 11, Jan. 29, 2010, ECF No. 68–2. Mid–Atlantic often double-booked patients, and Dr. Lurie would record fake evening appointments as extra billed hours to compensate for the increased daytime workload. Lurie Dep. 284–86, 300–02. In contrast, Dr. Lurie says he followed an accepted billing method and was actually fired because he reported quality of care concerns, he was Jewish, and Mid–Atlantic wanted to circumvent its responsibilities to pay his pension. Lurie Dep. 86–87, 122, 186, 300.

II. PROCEDURAL BACKGROUND

In 2006, Dr. Lurie sued under D.C. and Maryland common law for wrongful discharge, breach of contract, and tortious interference. Compl. 10–12, Aug. 4, 2006, ECF No. 1. He also sued under federal law for employment discrimination in violation of the Age Discrimination in Employment Act (ADEA) and the Employee Retirement Income Security Act (ERISA). Id. at 8–10. Mid–Atlantic countersued for breach of contract, fraud, negligent misrepresentation, and unjust enrichment. Countercl. 10–13, Sept. 5, 2006, ECF No. 2.

The Court dismissed Mid–Atlantic's counterclaims for lack of jurisdiction and granted Mid–Atlantic's motion for summary judgment on all of Dr. Lurie's claims. Lurie v. Mid–Atlantic Permanente Medical Group, 729 F.Supp.2d 304, 313 (D.D.C.2010). In particular, the Court's ruling on the common law claim for wrongful discharge, which Dr. Lurie now moves to alter, was that Dr. Lurie was “unable to identify an appropriate public policy on which to base his claim.” Id. at 326. Under both D.C. and Maryland common law, an employee may sue for wrongful discharge if the discharge violates a clear mandate of public policy as announced by a constitution, statute, or regulation. Dr. Lurie offered several statutes, regulations, professional standards, and internal company policies that the Court found insufficient to support a wrongful discharge claim. Id. at 327–28. For instance, one relevant statute was D.C.Code Section 7–161, which requires health care providers to report adverse medical events. D.C.Code § 7–161 (2010). Dr. Lurie claimed his...