Sung v. Doyle

Decision Date26 December 2013
Docket NumberCiv. No. 13–00024 JMS–KSC.
Citation988 F.Supp.2d 1195
PartiesCHEN–LI SUNG, M.D., Plaintiff, v. Dennis D. DOYLE, in his official capacity as Commander of Tripler Army Medical Center; et al., Defendants.
CourtU.S. District Court — District of Hawaii

OPINION TEXT STARTS HERE

Della A. Belatti, Ronald N.W. Kim, Eric A. Seitz, Sarah R. Devine, Eric A. Seitz, Attorney at Law, a Law Corporation, Honolulu, HI, for Plaintiff.

Thomas A. Helper, Office of the United States Attorney, Honolulu, HI, for Defendants.

ORDER GRANTING IN PART DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

Plaintiff Chen–Li Sung, M.D. (Plaintiff or “Sung”), an active duty officer and doctor in the United States Army, was terminated from the Tripler Army Medical Center (“TAMC”) general surgery residency training program on February 9, 2011. Plaintiff filed a previous suit, Sung v. Gallagher, Civ. No. 11–00103 JMS–KSC (D. Haw. filed Feb. 16, 2011) (“ Sung I ”), which challenged that termination as a violation of due process and impermissible disability discrimination. This court dismissed that action without prejudice becausePlaintiff had not exhausted available administrative remedies before the Army Board for the Correction of Military Records (“ABCMR”). Having now exhausted such remedies, Plaintiff filed this suit against Defendants Dennis D. Doyle,1 in his official capacity as Commander of TAMC; Holly L. Olson, in her official capacities as Director of Medical Education and Chairperson of the TAMC Graduate Medical Education Committee (“GMEC”); and the GMEC itself (collectively Defendants or “the Army”), again contending that his termination from TAMC's residency program is void because he was denied due process and was a pretext for unlawful disability discrimination. Doc. No. 1, Compl. at 18–19.

Before the court is Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, Doc. No. 7, asserting that the court lacks subject matter jurisdiction and, alternatively, that Plaintiff's claims fail on the merits as a matter of law. Based on the following, the court concludes that it has subject matter jurisdiction, but GRANTS Defendants' Motion for Summary Judgment.

II. BACKGROUND

In Sung I, the court issued two key Orders. First, on June 30, 2011, the court denied Sung's Motion for Preliminary Injunction, determining-after an extensive review of the record of TAMC's termination-of-residency proceedings-that Sung failed to establish (1) a likelihood of success on the merits, (2) a likelihood of irreparable harm, (3) a favorable balance of equities, and (4) that an injunction would be in the public interest. See Sung v. Gallagher, 2011 WL 2610136, at *12 (D.Haw. June 30, 2011) (Order Denying Plaintiff's Motion for Preliminary Injunction). The court later dismissed Sung I without prejudice for failure to exhaust “available intraservice remedies.” Sung v. Gallagher, 2011 WL 4952617, at *5 (D.Haw. Oct. 17, 2011) ( quoting Wenger v. Monroe, 282 F.3d 1068, 1072 (9th Cir.2002)).2

Those two Orders detail the circumstances of Sung's termination. The court's June 30, 2011 Order Denying Plaintiff's Motion for Preliminary Injunction examined and described the hearing and other process provided by the Army in terminating Sung from the TAMC surgical residency program, and analyzed the challenges Sung made to those processes. The court reviewed the record again in its October 17, 2011 Order dismissing Sung I without prejudice. The record in this case includes that same evidence, along with the decision and relevant documents from the subsequent ABCMR administrative review. Accordingly, the court draws heavily from those prior Orders in setting forth the background facts, and in reviewing his challenges in this action.

A. Background Leading to Termination from Residency

Sung graduated from Mount Sinai School of Medicine in New York City with a Doctor of Medicine degree on April 29, 1998. Doc. No. 8–2, Defs.' Mot. Ex. 2. He began a surgical residency at Saint Barnabas Medical Center in Livingston, New Jersey, on July 1, 1998. Doc. No. 8–3, Defs.' Mot. Ex. 3. He withdrew from his surgical residency during his second year, and worked in the financial field on Wall Street for the next five years. Doc. No. 8–4, Defs.' Mot. Ex. 4 at 3; Doc. No. 8–10, Defs.' Mot. Ex. 10 at 91.

On March 4, 2005, Sung was appointed as a Captain in the U.S. Army Medical Department (“AMEDD”). Doc. No. 8–1, Defs.' Mot. Ex. 1. He completed the AMEDD Officer Basic course on May 13, 2005, and was assigned to TAMC to resume a surgical residency on May 14, 2005. Doc. No. 8–4, Defs.' Mot. Ex. 4 at 5–7. While at TAMC, he received high ratings on his officer evaluation reports from 2005 to 2009. Doc. No. 8–5, Defs.' Mot. Ex. 5 at 3–10. He began his last year of surgical residency (his chief resident year) on May 14, 2009. Id. at 1.

Sung had difficulties in his chief resident year. Doc. No. 8–6, Defs.' Mot. Ex. 6 at 1. In July and August 2009, the general surgery program director, Dr. Ronald Gagliano, counseled Plaintiff. Dr. Gagliano stated that Sung “began avoiding work due to stress.” Doc. No. 8–7, Defs.' Mot. Ex. 7 at 2. In September 2009, Sung suffered a recurrence of “major depressive disorder,” Doc. No. 1, Compl. ¶ 11, and was on medical leave through November 2009. Doc. No. 8–6, Defs.' Mot. Ex. 6 at 1. He returned to full duty on December 1, 2009, but was at a “service remediation” level for sixty days. Id. The “causes of remediation” were listed by Dr. Gagliano as: “work avoidance/hard case avoidance,” “poor patient care,” “not carrying out the administrative and supervisory duties of a [fifth year resident],” “relying on other residents to do his work and failure of appropriate supervision,” and “interpersonal skills and communication, i.e., reporting on other residents' patient assessments as his own.” Id. at 1–2. Sung's Complaint asserts that the late–2009 recurrence of his depression was “attributable to conflicts between [Sung] and two of his superiors in the Department of Surgery who falsely accused [him] of being untruthful[.] Doc. No. 1, Compl. ¶ 12.

On February 2, 2010, Dr. Gagliano recommended to the GMEC that Sung be put on probation. Doc. No. 8–7, Defs.' Mot. Ex. 7 at 2–9. The recommendation indicated that Sung had “failed [his] required rotation while on service level remediation for January 2010.” Id. at 2. It documented, or alleged, certain incidents of substandard performance such as where Sung apparently misdiagnosed a child who had appendicitis. Id. at 4. (Sung later disputed the details of these incidents. Doc. No. 8–9, Defs.' Mot. Ex. 9 at 3–10.) Sung accepted the probation plan on February 5, 2010. Doc. No. 8–7, Defs.' Mot. Ex. 7 at 1.

On March 3, 2010, Dr. Gagliano relieved Sung of his clinical duties, and recommended he be terminated from the surgical residency program. Doc. No. 8–8, Defs.' Mot. Ex. 8. Sung refused the proposed dismissal, and provided a lengthy written response disputing many of Dr. Gagliano's details and explaining that he was being treated unfairly. Doc. No. 8–9, Defs.' Mot. Ex. 9. Sung elected to appear before the GMEC with counsel. Id. at 11. A dismissal hearing was held before the GMEC on March 29, 2010. On April 5, 2010, the GMEC denied Dr. Gagliano's recommendation to terminate Sung. Doc. No. 8–10, Defs.' Mot. Ex. 10 at 114. Sung's Complaint states that the GMEC found Sung “had been compelled to work in a hostile environment.” Doc. No. 1, Compl. ¶ 12.3

Certain conditions, however, were placed on Sung being able to remain in residency training, including allowing Sung to try to transfer to another training program away from TAMC. Doc. No. 8–10, Defs.' Mot. Ex. 10 at 114. If such a program was not found, Sung was to resume his residency at TAMC and his probation would be continued. Id. By the end of April 2010, Sung was not able to find a residency program outside TAMC, so he returned to TAMC where he was placed on probation for two months. Id. at 115.

From June to August 2010, Sung performed “adequately” and was rated “satisfactory.” Id. at 124–34. On September 2, 2010, however, Sung was removed from providing patient care “for medical reasons.” Id. at 136. A new acting program director, Dr. Dwight Kellicut, wrote that

[Sung's] performance over the last five weeks has degraded substantially, i.e., oversleeping for rounds, sleeping 20+ hours at a time, missing meals due to no appetite. Residents report seeing him sleeping excessively in the call room which culminated in his absence from academic conference yesterday and his failure to complete required Morbidity and Mortality Reports in a timely fashion.

Id. Dr. Kellicut acknowledged Sung's illness:

I have a real and honest concern for this resident's well being and his ability to care for patients safely.... CPT Sung's difficulties, in my opinion, are due to severe depression and emotional stress.... CPT Sung is technically able to operate and he is in good academic standing. However, being a surgeon and making life and death decisions require someone who is 100% at all times, not someone who is 60% at best [as Sung has estimated].... I recommended he see his psychiatrist immediately.

Id. at 137. On September 8, 2010, Sung was suspended from patient care, pending a mental health evaluation. Id. at 138.

On November 22, 2010, Sung was notified that the program director was recommending that he be terminated from the TAMC General Surgery Residency training program, based on his “regression after removal from probation.” According to the notification, “there was consensus [with the program faculty] that you remain deficient in your performance despite remediation and probation.” Id. at 139. The notification referenced the prior September 2, 2010 and September 8, 2010 suspension memoranda. Sung acknowledged the recommendation on November 24, 2010. Id. at 140. On December 1, 2010, after receiving a notice from Dr....

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    ...exhaust available administrative remedies before bringing grievances to federal court[.]") (citing 5 U.S.C. § 704);1Sung v. Doyle, 988 F. Supp. 2d 1195, 1205 (D. Haw. 2013) (reiterating that "federal courts have jurisdiction under 5 U.S.C. § 702 of the APA to review decisions of the [Army B......

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