Mahmud v. Kaufmann, 05 Civ. 8090(WCC).

• Decision Date: 31 March 2009
• Docket Number: No. 05 Civ. 8090(WCC).,05 Civ. 8090(WCC).
• Citation: 607 F.Supp.2d 541
• Parties: Saeeda A. MAHMUD, M.D., Plaintiff, v. Walter KAUFMANN, M.D., Jeff Auerbach, M.D., Jane Brooks, M.D., Gopal Shah, M.D. and David Brody, M.D., Individually, Jointly and Severally, Defendants.
• Court: U.S. District Court — Southern District of New York

607 F.Supp.2d 541

Saeeda A. MAHMUD, M.D., Plaintiff, v. Walter KAUFMANN, M.D., Jeff Auerbach, M.D., Jane Brooks, M.D., Gopal Shah, M.D. and David Brody, M.D., Individually, Jointly and Severally, Defendants.

No. 05 Civ. 8090(WCC).

United States District Court, S.D. New York.

March 31, 2009.

COPYRIGHT MATERIAL OMITTED

Law Office Of Carl E. Person, New York, NY, Carl E. Person, Esq., Of Counsel, Adelman, Sheff & Smith, LLC, Annapolis, M.D, S. Allan Adelman, Esq., Michael I. Joseph, Esq., of Counsel, for Plaintiff.

Jeffers & Ireland, P.C., Stephen M. Cowherd, Esq., of Counsel, Fairfield, CT, for Defendants.

OPINION AND ORDER

CONNER, Senior District Judge.

Plaintiff Saeeda A. Mahmud, M.D., brings this action against defendants Walter Kaufmann, M.D. ("Kaufmann"), Jeff Auerbach, M.D. ("Auerbach"), Jane Brooks, M.D. ("Brooks"), Gopal Shah, M.D. ("Shah") and David Brody, M.D. ("Brody" and together with Kaufmann, Auerbach, Brooks and Shah, collectively "defendants") arising out of the denial of her medical staff privileges at Bon Secours Community Hospital (the "Hospital" or "BSCH") and Orange Regional Medical Center ("ORMC"). Plaintiff alleges that defendants failed to renew her contract with the Hospital and thwarted her efforts to contract with ORMC for admitting privileges, both on the basis of her race and in an effort to limit competition in the market for certain specialized medical services in the area of Port Jervis, New York. Plaintiff brings claims pursuant to 42 U.S.C. § 1981, the New York Human Rights Law, New York Executive Law §§ 290, et seq. (the "NYSHRL"), the Sherman Act, 15 U.S.C. §§ 1, et seq., and New York General Business Law § 340 (the "NYGBL"), as well as common law claims for interference with prospective economic advantage and prima facie tort.

Following a series of opinions and communications with the Court, plaintiffs only remaining causes of action are her fifth and sixth causes of action, for interference with plaintiffs prospective economic advantage and violation of the Sherman Act.¹ Defendants now move for summary judgment on both of these claims. For the reasons stated herein, defendants' motion is granted in its entirety.

BACKGROUND

Plaintiff, a licensed physician, is board certified in internal medicine and specializes in cardiology. (Mahmud Decl. ¶¶ 3, 6-7.) Defendants are all doctors affiliated with the Hospital. (Id. ¶ 26.) In or about 1996, a representative from Mercy Hospital² offered to sell to plaintiff a pulmonary and internal medicine practice, encouraging her to open a cardiology practice because there was only one other cardiologist in the Port Jervis area, Kaufmann. (Id. ¶¶ 10-11.) Before she accepted the offer, plaintiff learned that Kaufmann had an exclusive arrangement for interpreting all cardiology tests (or "echo tests") administered at the Hospital, but plaintiff was told by representatives of Mercy Hospital that "something will be done about the exclusivity of cardiology tests." (Id. ¶ 13.) These representatives assured plaintiff that, as she expanded her cardiology practice, she would be permitted to interpret her own patients' cardiology tests administered at the Hospital. (Id.) "[A] few weeks later, Kaufmann stated to [plaintiff] that he agreed to this." (Id.) Plaintiff ultimately accepted Mercy Hospital's offer to sell the practice. (Id. ¶ 12.)

However, once plaintiff began working, Kaufmann "rescinded his earlier assurance and made a unilateral decision to read the [cardiology tests] of the ... patients for which [plaintiff] had consulted." (Id. ¶ 15.) According to plaintiff, "[t]his created quality of care issues for [her] patients because of the delay in getting the tests to [her] for her (unpaid) review, and cost [her] about $1,312,500 in lost fees." (Pl. R. 56.1 Stmt. ¶ 22.)³ Plaintiff sent letters to the Hospital's administration "seeking to rectify this inappropriate poaching of [her] patients' tests ... but this effort failed to bring about any changes." (Mahmud Decl. ¶ 15.) At least one of the defendants "was heading the doctors' committee whose consent would be needed to make the desired change." (Id.)

During a period of time spanning from some point in 2000 through June 2001, plaintiff was "often critical of [H]ospital management, and the level and quality of care provided by [the Hospital] and by various doctors on staff at the [H]ospital."⁴ (Id. ¶ 34.) She often communicated her criticisms orally, "through appropriate channels ... but without result." (Id. ¶ 35.) According to plaintiff, despite her complaints, "the quality of care remained the same." (Pl. R. 56.1 Stmt. ¶ 6 (citing Mahmud Decl. ¶ 75).) She then resorted to putting her concerns regarding "inadequate care" in her patients' medical charts, for which she was criticized by the Hospital's administration and her peers.⁵ (Mahmud Decl. ¶ 35.) Plaintiff contends that her concerns were "well founded under medical practices."⁶ (Pl. R. 56.1 Stmt. ¶ 4.)

In the Spring of 2001, the Hospital was evaluated by the Joint Accreditation Hospital Commission ("JAHCO") for purposes of its re-accreditation. (Mahmud Decl. ¶ 37.) Plaintiff made an appointment to meet with the JAHCO to report her concerns about "the level and quality of care provided by the [H]ospital." (Id. ¶ 37.) She cancelled the appointment after certain employees⁷ of the Hospital told her to not express her criticisms about the Hospital to JAHCO and threatened her. (Id. ¶ 38.)

In July 2001, Thomas Brunelle ("Brunelle"), Executive Vice President/Administrator of the Hospital, notified plaintiff that, at the request of the Hospital's Physician Quality Assurance Committee, he would arrange for an independent medical review of her charts to investigate her concerns about the level of care that was being rendered to her patients. (Defs. Supp. R. 56.1 Stmt. at 1.)

Dr. Ronald Tatelbaum ("Tatelbaum") conducted the review of plaintiffs charts (the "charts") and by letter, dated October 15, 2001, (the "Tatelbaum Report") reported that there were "`serious medical issues and understandings of the basic physiology and pathology which ... need to be addressed'" regarding plaintiff's own patient care. (Id.) Tatelbaum also noted his impression, based on the charts, that "`[plaintiff] has little respect for [H]ospital rules and regulations and little understanding of the value of a[H]ospital chart and documentation therein'" and he suggested that plaintiff be referred to the Committee for Physicians Health ("CPH").⁸ (Id. at 1-2.)

Brunelle sent the Tatelbaum Report to the Hospital's Medical Executive Committee ("MEC") and requested that "`corrective action'" be taken with regard to plaintiff, in accordance with Article VIII of the Medical Staff Bylaws (the "Bylaws"). (Defs. Suppl. R. 56.1 Stmt. at 2.) Pursuant to Section 8.1.2 of the Bylaws, the MEC referred the matter to Brooks, the Chief of the Department of Medicine, for further investigation. (Id.) Brooks, pursuant to the Bylaws, appointed an ad hoc committee (the "Ad Hoc Committee") to investigate the matter. (Id.) By letter, dated November 6, 2001, Brooks informed plaintiff that the Ad Hoc Committee had been appointed and that plaintiff could submit written materials to and had a right to an interview with this committee "to discuss, explain or refute the charges which have been made." (Id.; Lasch Decl., Ex. A at 162.) Brooks also sent plaintiff a copy of the Tatelbaum Report. (Defs. Suppl. R. 56.1 Stmt. at 2.)

On November 27, 2001, the Ad Hoc Committee informed Brooks that it had reviewed plaintiff's charts and "agree[d] `in general with the majority of the issues raised by ... Tatelbaum.'" (Id.) Brooks notified the MEC of the Ad Hoc Committee's findings and that she had been in touch with the CPH, which had recommended that plaintiff undergo a complete physical and psychiatric evaluation at Massachusetts General Hospital. (Id.) Brooks also recommended that plaintiff undergo the evaluation before the Ad Hoc Committee made its final recommendations to the MEC. (Id.) Brooks then sent a letter to plaintiff, wherein she urged plaintiff to take advantage of the opportunity to meet with the Ad Hoc Committee. (Id. at 3.)

According to plaintiff, the Ad Hoc Committee was comprised of the defendants and "several other doctors under their control." (Mahmud Decl. ¶ 40.) Plaintiff also contends that Tatelbaum, a cardiologist, "had a relationship with" Bon Secours Charity Health System⁹ "through his referral[s] of patients from his office," and that his recommendation "went beyond [the] scope of cardiology to suggest that [she] be sent for psychiatric evaluation." (Id. ¶ 42.) Plaintiff had the charts reviewed by another physician, Dr. Janet Strain ("Strain"), "an interventional cardiologist," who concluded that plaintiff's care, as reflected in the charts, "has been without reproach" and was "appropriate and expeditious." (Id. ¶ 43; Person Decl., Ex. P at 11.) Plaintiff sent a copy of Strain's report to Brooks and Auerbach.¹⁰ (Defs. Suppl. R. 56.1 Stmt. at 3.)

On December 11, 2001, Brooks notified the MEC that the Ad Hoc Committee had met with plaintiff and still believed that plaintiff had "`an apparent lack of knowledge of current practice standards'" and that she had made "`inappropriate and incriminating statements in medical charts against colleagues and [the Hospital].'" (Id.) Brooks' recommended that the MEC consider suspending plaintiff until she completed the physical and psychiatric evaluation recommended by the CPH. (Id.; Lasch Decl., Ex. A at 174.) Brooks also sent a letter to plaintiff, urging her to contact Massachusetts General Hospital to schedule the evaluation. She told plaintiff:

"This evaluation and our contact with the [CPH] was done for your protection. I sincerely hope that you will avail yourself of this opportunity. I have been informed ... by the [CPH], that if you have not scheduled this appointment on or before December 14, 2001, your case will be dropped by...