Moussa v. Commonwealth of Pennsylvania Dept.

• Decision Date: 23 October 2003
• Docket Number: Civil Action No. 00-225.
• Citation: 289 F.Supp.2d 639
• Parties: Samir M. MOUSSA, M.D., Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, Polk Center, Christopher P. Gorton, as Agent and Employee thereof, and Christopher P. Gorton, an individual, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

289 F.Supp.2d 639

Samir M. MOUSSA, M.D., Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE, Polk Center, Christopher P. Gorton, as Agent and Employee thereof, and Christopher P. Gorton, an individual, Defendants.

Civil Action No. 00-225.

United States District Court, W.D. Pennsylvania.

October 23, 2003.

COPYRIGHT MATERIAL OMITTED

Vernan Lee Bailey, Meadville, PA, for plaintiff.

Rodney M. Torbic, Craig E. Maravich, Office of the Attorney General, Pittsburgh, PA, for defendants.

MEMORANDUM OPINION

McLAUGHLIN, District Judge.

Presently pending before the Court in this Title VII employment discrimination case is a motion for judgment as a matter of law or, alternatively, a new trial filed on behalf of Defendant the Commonwealth of Pennsylvania Department of Public Welfare ("DPW").¹ In October of 2002 this case proceeded to trial on Plaintiff's claim that he was unlawfully terminated from his employment at the Polk Center on the basis of his national origin. At the conclusion of the trial testimony, this Court denied Defendant's motion for judgment as a matter of law relative to this claim. The jury subsequently returned a verdict in Plaintiff's favor and awarded $750,000 as compensation for his emotional damages. Upon further careful review, we conclude that Defendant's motion for judgment as a matter of law should have been granted at the conclusion of the case and, for the reasons set forth below, we do so here. Alternatively, we grant Defendant's request for a new trial.

I. Factual Background

Plaintiff Samir Moussa, M.D. is an Egyptian-born physician currently employed at the Polk Center (hereafter, "Polk" or the "Center") in Venango County, Pennsylvania. Polk is a hospital for mentally retarded and disabled individuals and is managed by DPW, an agency of the Commonwealth of Pennsylvania. Plaintiff was originally hired as a physician at Polk in 1986. In 1995, he became Medical Director of the Center. (Trial Tr., 10/25/02 at p. 5.)

In the fall of 1996, the Department of Health (DOH), a separate Commonwealth agency, conducted a survey of all services provided at Polk in order to evaluate its compliance with federal Medicaid standards. (Tr. 10/28/02 at pp. 47-49.) On November 1, 1996 DOH notified the Center as part of its "exit interview" that DOH's survey team had found numerous deficiencies, nearly all of which involved the health care services that Polk rendered to its residents. (Id. at p. 50-51; Def. Ex. S.) Among the more serious problems noted by DOH were findings that the deaths of several residents appeared to have been preventable, that in certain cases patients' fractures had gone undiagnosed, that staples had been used to suture lacerations on residents' faces and scalps, and that open wounds were commonly stapled or sutured without the use of anesthesia. (Tr. 10/28/02 at 52-55, 60; Def. Ex. S.)

As a result of these findings, DOH put Polk on notice that it would be decertified in ninety (90) days if the deficiencies were not corrected. (Id. at 50, 55-56.) Decertification would have made the Center ineligible for any federal funding which, at that time, accounted for about half of Polk's operating income. (Id. at p. 56.) As a practical matter, decertification would have resulted in the Polk Center shutting down. (Id.)

In response to this crisis, Dr. Christopher Gorton, then the state-wide Medical Director for DPW's Office of Mental Retardation ("OMR"), and Mr. Michael Stauffer, then the DPW bureau director responsible for state centers operations, undertook measures to address those deficiencies identified by the DOH. As part of their plan of correction, Dr. Gorton and Mr. Stauffer created an Independent Evaluation Team ("IET") to assess the overall functioning of the Polk Center and instituted committees to review the incident reports (referred to as "MR-34" reports) of all Polk residents for risk management purposes. (Tr. 10/28/02 at pp. 57-61.) In addition, DPW began an internal administrative investigation relative to those physicians implicated in the cases of seemingly preventable deaths. (Id. at 58.) It also required Plaintiff, in his capacity as Medical Director, to implement a policy prohibiting the application of sutures or staples without anesthesia and further prohibiting the use of staples to close facial and scalpel wounds. (Id. at 57-58.)

In January of 1997, the IET identified a "laundry list" of practices at Polk which were inconsistent with the overall standards of OMR. (Tr. 10/28/02 at 62.) Based on the IET's review, DPW concluded that there was a need for change in the Polk Center's leadership. (Id. at pp. 62-63; Def. Ex. Q.) On December 9, 1996 the Center's Facility Director, David Kucherawy, asked Plaintiff to step down from his position as Medical Director. (Tr. 10/25/02 at pp. 9-10; Tr. 10/28/02 at 63.) Plaintiff agreed and continued as a staff physician at Polk. Mr. Kucherawy was himself removed by DPW in January of 1997. (Tr. 10/28/02 at p. 62.) Additionally, Polk's Personnel Director and Assistant Superintendent for Administration were replaced. (Id. at p. 120.) Aside from Plaintiff, all of the persons who were removed from top level management positions were American-born. (Id. at 119-120.)

In addition, the IET specifically conducted a "top to bottom" review of Polk's clinical services, evaluating everything from the manner in which progress notes were recorded to the adequacy of Polk's health care equipment. (Tr. 10/28/02 at pp. 64-65.) Among the problems noted were complaints by Polk nurses that they were often left to evaluate injuries on their own. In light of this concern — as well as the previous incidents involving undiagnosed fractures and the difficulty Polk residents sometimes had in communicating their medical problems — Polk instituted a new policy requiring physicians to personally evaluate any patient who had a potentially harmful injury, even if it was minor. (Id. at pp. 65-66.)

Part of DPW's plan of correction for deficiencies at the Polk Center involved a disciplinary review of those health care professionals implicated in the DOH's deficiency findings, beginning with the cases involving deaths of residents. (Tr. 10/28/02 at 58-59.) As to those cases, two physicians — Donald Stitt and David Byers, both American born — were found to be responsible parties. Subsequent to these findings, Dr. Stitt retired and Dr. Byers resigned. (Id. at 59-60.) It was DPW's practice at that time to discontinue the disciplinary process if an employee subject to administrative investigation terminated his or her employment. Accordingly, neither Dr. Stitt nor Dr. Byers were disciplined. (Id.) Disciplinary action was taken against certain other health care professionals relative to some of the deficiencies cited by DOH, but Plaintiff was not implicated in these incidents. (Id. at 68.) As to those Polk physicians, including Plaintiff, who had engaged in the practice of suturing and/or stapling patients' wounds without anesthesia, no disciplinary sanctions were imposed by DPW. Instead, the physicians were simply instructed to cease and desist this practice in accordance with Polk's new policy. (Id. at 60, 67-68.) There is no dispute that Plaintiff abided by the administration's cease and desist policy after its implementation.

DPW's standard practice in prior years had been to address concerns about an employee's professional performance solely through the regular administrative processes — the same processes used to address issues such as misuse of leave time, employee theft, or the like. (Tr. 10/28/02 at p. 66.) However, given the gravity of DOH's findings, Dr. Gorton proposed in late 1996 that the incidents of deficiency cited by DOH also be independently evaluated by competent clinical authorities outside of DPW. (Id. at pp. 66-67.) Consequently, Dr. Gorton and Mr. Stauffer, in conjunction with other OMR officials, prepared a list of individuals implicated in the findings of deficient health care with the intent of notifying the appropriate licensing authorities. (Id. at 67-73, 95; Def.'s Ex. R and I.) On February 21, 1997 a final list was submitted to the Pennsylvania Board of Medicine so that the Board might determine if further action should be taken against those individuals from a licensing standpoint. (Tr. 10/28/02 at p. 68; Def. Exhibit. I.) Those persons identified included Plaintiff as well as Drs. Donald Stitt, David Byers, Cesar Miranda, Luka Makkar, and Nirmala Shrof. Four nurses were also identified, to wit, Louella DuPree, Amy Winger, Delores McQuiston, and Frantz Shelly. (Def.Ex.I.) Of these, several individuals — including Dr. Stitt, Dr. Byers and at least two nurses — were American-born. (Tr. 10/28/02 at p. 69-70, Def.'s Ex. I.) Both Plaintiff and Dr. Makkar were reported solely for their failure to use anesthesia when applying staples and/or sutures to patients' wounds. (Def.'s Ex. I.)

Notwithstanding these initial measures, a resident of the Polk Center died on March 6, 1997 under circumstances indicating substandard care. The doctor and nurses implicated in this event were immediately suspended and DPW moved to have them terminated.² (Tr. 10/28/02 at 76-77.) DOH was immediately advised of the incident. Upon this notification, DOH performed a three-day on-site survey of the Center. (Id. at 74, Def.'s Ex. T.) At the conclusion of this survey, DOH found that Polk was operating under deficiencies posing an "immediate and serious threat to the health and safety of [its residents]." (Def.Ex. T.) Accordingly, DOH issued a notice that the Center would be decertified in twenty-three (23) days if the deficiencies were not rectified. (Tr. 10/28/02 at pp. 74-76.) According to Dr. Gorton and Mr. Stauffer, this 23-day decertification notice was the most critical response that a facility could receive from DOH and an extremely unusual occurrence. (Id. at 75, 123.) Governor Tom Ridge mandated immediate changes at the Center. (Id. at...