NUOVO v. The Ohio State Univ.

Decision Date16 July 2010
Docket NumberCase No. 2:09-cv-312.
Citation726 F.Supp.2d 829
PartiesGerard NUOVO, Plaintiff, v. THE OHIO STATE UNIVERSITY, et al., Defendants.
CourtU.S. District Court — Southern District of Ohio

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William W. Patmon, III, Patmon LLC, Columbus, OH, for Plaintiff.

Fred G. Pressley, Jr., Bradd Nathan Siegel, Jamie A. Laplante, Porter Wright Morris & Arthur, Alycia N. Broz, Vorys, Sater, Seymour and Pease LLP, William J. Barath, Aaron Louis Granger, Amanda Leslie Wickline, Schottenstein Zox & Dunn, Timothy B. McGranor, Columbus, OH, Britt Jason Rossiter, Zashin & Rich Co. L.P.A., Cleveland, OH, for Defendants.

OPINION AND ORDER

GREGORY L. FROST, District Judge.

This matter is before the Court for consideration of the following filings:

(1) a motion to dismiss filed by Defendants OSU Pathology Services, LLC, Ohio State University Physicians, Inc., Hagop Mekhijian, and Daniel Sedmak (Doc. # 55);

(2) a motion to dismiss filed by Defendant Sanford Barsky (Doc. # 56), a memorandum in opposition filed by Plaintiff (Doc. # 78), and a reply memorandum filed by Barsky (Doc. # 81); and

(3) a motion to dismiss filed by Defendants The Ohio State University, E. Gordon Gee, Gilbert Cloyd, Hagop Mekhijian, Caroline Whitacre, Joseph Alutto, Daniel Sedmak, and Robert Bornstein (Doc. # 57), a memorandum in opposition filed by Plaintiff (Doc. # 80), and a reply memorandum filed by the foregoing defendants (Doc. # 82).

For the reasons that follow, this Court finds the motion filed by OSU Pathology Services, LLC, Ohio State University Physicians, Inc., Mekhijian, and Sedmak well taken (Doc. # 55), the motion filed by Barsky well taken in part (Doc. # 56), and the motion filed by The Ohio State University, Gee, Cloyd, Mekhijian, Whitacre, Alutto, Sedmak, and Bornstein well taken in part (Doc. # 57).

I. Background 1

According to his pleading, Plaintiff, Dr. Gerard Nuovo, is an Italian-American physician, cancer researcher, and tenured professor of pathology employed at the medical center at The Ohio State University (OSU). Defendant Dr. Sanford Barsky is allegedly an employee and shareholder of Defendants OSU Pathology Services, LLC (“OSUPS”) and Ohio State University Physicians, Inc. (OSUPI). Defendant E. Gordon Gee is President of The Ohio State University, and Defendant Dr. Gilbert Cloyd is the former chairman of the OSU Board of Trustees. Dr. Joseph Alutto is the OSU Vice Provost, and Defendant Dr. Hagop Mekhijian is a supervisor at OSU. Dr. Daniel Sedmak is an employee and shareholder of OSUPS and OSUPI. Dr. Robert Bornstein is the Dean of Academic Affairs at OSU. Defendant Dr. Caroline Whitacre is an OSU employee; the Second Amended Complaint does not identify her specific position. The Second Amended Complaint does, however, describe most of these defendants as agents of OSUPS and OSUPI.

In June 2005, OSU, OSUPS, and OSUPI implemented procedures under a quality assurance policy designed to identify and remedy major discrepancies in the diagnosis by OSU cytotechnologists of pap smears. On June 16, 2005, Plaintiff identified and reported to Thom Smith, the Director of University Reference Labs, three major discrepancies in which there had been diagnoses of pap smears as indicating that women had HPV when subsequent biopsies revealed no HPV. These discrepancies were in turn reported to Elizabeth Seely, a senior administrator in charge of cytotechs, who was under the direct supervision of Mekhijian. Seely allegedly ordered Plaintiff to suspend application of the quality assurance policy. Plaintiff objected and requested that the cytotechnologists involved be removed from clinical practice and retrained. He also allegedly identified twenty-three more misdiagnoses.

One problem with false positive pap smears is that a woman relying on the incorrect result may have a significant portion of her cervix removed, resulting in a condition known as an incompetent cervix. This condition increases the likelihood of a miscarriage, premature births, and the premature rupture of membranes. Another problem is that some of the women were allegedly diagnosed as having the venereal disease HPV.

Although the quality assurance policy was subsequently amended in 2005, the discrepancy rule at the heart of Plaintiff's reports remained in the policy. Plaintiff objected on November 8, 2005, to the purportedly non-substantive changes to the policy and to Seely's order that the policy be suspended. The next day, Plaintiff reported to Mekhijian that in over 40% of patient cases the diagnoses of malignant HPV had been incorrect. Mekhijian purportedly did nothing. On November 30, 2005, allegedly with Mekhijian's approval, Seely wrote to Plaintiff and suggested policy changes such as the removal of the quality assurance policy provision requiring that biopsies be used to verify pap smear results and that the policy be effective January 1, 2006, instead of being back-dated to cover the period about which Plaintiff had complained. Plaintiff refused to agree to these changes and communicated his position to OSU's legal counsel and risk management in December 2005.

OSU's legal counsel and risk management allegedly informed Plaintiff that he had to sign off on the changes. Plaintiff refused, and on January 6, 2006, he reported his concerns to Dr. Sanford Barsky and Dr. Saul Suster (Plaintiff's immediate supervisor), including his allegation that hundreds of women had been and were being misdiagnosed with either a pre-cancer condition or venereal disease when they were perfectly healthy. On that same day, Dr. Deborah Bartholomew wrote a letter to Suster in which she complained about the error rate prior to Plaintiff joining the clinical practice and supported his concerns. Plaintiff then sent Seely a January 12, 2006 memorandum, copying Barsky and Mekhijian, in which Plaintiff repeated his concerns.

Plaintiff was subsequently fired from his clinical position with OSUPS and OSUPI and barred from accessing clinical laboratory pap smears and biopsies. The stated reason behind these actions is that Plaintiff is not board certified and is therefore not qualified to engage in such work. When Plaintiff requested that Barsky restore his laboratory privileges and indicated that he wanted to continue in the clinical treatment of women, Barsky allegedly told him no and called Plaintiff a “stupid Italian.” (Doc. # 51 ¶ 69.) A non-Italian physician who had no clinical cervical pathology training replaced Plaintiff. The January 2006 discharge reduced Plaintiff's salary. He asserts that he is now making less then all similarly situated non-Italian employees under Barsky's supervision, despite having requested salary increases in 2006, 2007, 2008, and 2009.

On August 4, 2006, Barsky suspended Plaintiff's laboratory and clinical privileges on the grounds that Plaintiff had violated standards of professional conduct and created an environment detrimental to the safety of patients. A Credential Committee later concluded that this suspension was unjustified and reinstated Plaintiff's privileges. Plaintiff's clinical privileges were again suspended on September 11, 2007, however.

During this period of time, Plaintiff received a 2007 annual review by Barsky. Plaintiff received a “D” performance evaluation. During the evaluation meeting, Barsky allegedly asked Plaintiff, “Why do you think I have taken all of these negative actions against you?” (Doc. # 51 ¶ 81.) When Plaintiff responded that he did not know why, Barsky purportedly said, “How bout, it's because I don't like Italians.” ( Id.) Plaintiff complained about this exchange to the Director of Human Resources, Kate Dillingham. Although Human Resources allegedly deemed Barsky's comment inappropriate, no corrective action was taken. During an appeal by Plaintiff, Human Resources purportedly told him that Barsky would undergo ethnic diversity training and that Plaintiff would receive a report. Neither occurred. On October 4, 2007, Barsky then filed research misconduct allegations against Plaintiff. Plaintiff asserts that he was not informed of these charges until February 15, 2008.

In a June 27, 2008 letter, Plaintiff informed Gee that Plaintiff was being retaliated against for his revealing the alleged cover-up of misdiagnoses and that he was being mistreated because he was an Italian-American. Plaintiff asserts that Gee did not act to remedy his concerns, even after Plaintiff again contacted Gee in 2008 and in 2009.

Plaintiff appealed the Human Resources department's finding regarding Barsky's alleged racial slurs in July 2008, but the charge against Barsky was dismissed. The following month, Plaintiff unsuccessfully requested the reinstatement of his privileges. In August 3, 2008 letters, Plaintiff also informed Alutto and the OSU Board of Trustees of the alleged cover-up of misdiagnoses and that he was being mistreated because he was an Italian-American.

On October 16, 2008, Plaintiff was informed that the academic misconduct charges against him had been dismissed. Two months later, Plaintiff sent a December 8, 2008 letter to Dr. Wendy Frankel, the then-acting Chair of the Pathology Department, in which Plaintiff described his various grievances. Frankel purportedly requested that Plaintiff be reinstated, but Plaintiff was denied such reinstatement. Plaintiff then sent a December 30, 2008 letter to the Vice President and Executive Dean for Health Sciences and Dean of the College of Medicine in which Plaintiff asserted that Sedmak has and was retaliating against him. Plaintiff also requested reinstatement to cervical pathology and that he return to biopsy service. Plaintiff's letter writing continued with a February 2009 letter too the Joint Commission on Accreditation in which he repeated his concerns over asserted misdiagnoses.

In May 2009, Plaintiff was informed that scientific misconduct charges has been filed...

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