Vakharia M.D. v. Swedish Covenant Hosp.

Decision Date09 September 1999
Docket NumberNo. 97-4235,97-4235
Parties(7th Cir. 1999) USHA VAKHARIA, M.D., Plaintiff-Appellant, v. SWEDISH COVENANT HOSPITAL, NANCY LOEBER, M.D., DEMETRIUS A. TRAKAS, M.D., et al., Defendants-Appellees
CourtU.S. Court of Appeals — Seventh Circuit

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 90 C 6548--James B. Moran, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before CUDAHY, COFFEY and DIANE P. WOOD, Circuit Judges.

CUDAHY, Circuit Judge.

Usha Vakharia worked as an anesthesiologist at Swedish Covenant Hospital (SCH) from 1974 until 1989 when her hospital privileges were terminated ostensibly because of a lack of quality in her care of her patients. Vakharia filed a seven-count complaint against SCH and other defendants alleging, among other things, discrimination on grounds of race, national origin, sex and age. The district court entered summary judgment in favor of the defendants on all counts. Vakharia now appeals and we affirm.


Vakharia, a foreign-born, Asian-American woman and over the age of 40 at all relevant times, is a board-certified anesthesiologist, trained in the United States in her specialty. In 1974, she was appointed to the staff of SCH, a not-for- profit hospital located in Chicago. She was reappointed each year through 1989 and her privileges were increased in 1981 and 1983. For several months in 1984, Vakharia served as the acting head of the anesthesiology section. That same year, in response to complaints by the Chicago Board of Health regarding substandard equipment and improper equipment care, SCH took steps to improve its anesthesiology services. It hired Dr. Nancy Loeber, a white, American-born woman, as director of anesthesiology with a mandate to enhance the quality of anesthesiology care. Vakharia contends that she applied for the position of director but that her candidature was not considered; SCH points to a lack of evidence in the record that she had in fact applied.

In any event, by January 1986, anesthesiology had been designated a separate department within SCH. As chair of the department, Loeber assumed responsibility for supervising anesthesiology personnel--including staffing decisions and case assignments--and for establishing quality control procedures. The composition of the anesthesiology department changed considerably over the next few years. In 1984, all five anesthesiologists at SCH were foreign-born (four female and one male). Between 1985 and 1987, Loeber expanded the department with four new recruits (three male and one female), each of whom was white and American- born.

Loeber's first brush with Vakharia took place in March 1987, when Loeber conducted a performance audit on Vakharia. The audit identified 13 cases--11 in the previous year--in which Vakharia had experienced difficulty intubating patients or had failed to properly supervise unstable patients in the recovery room. Responding to Loeber's request for an explanation, Vakharia denied that the 13 cases reflected problems with her care and claimed that Karen Filipkowski, the nurse who had prepared several of the incident reports, was biased against her. In September 1987, motivated by a desire to spend more time with her family, Vakharia requested and received permission from Loeber to go on part-time rotation. The following March, Loeber conducted a poll of 35 of the 71 hospital surgeons concerning their preferences among the anesthesiologists. Of the responses received, Vakharia was the least, or close to the least, preferred.

In January 1988, Loeber introduced new criteria for the assignment of cases among the anesthesiologists on the basis of senior and junior status. Originally, board-certification was to be the benchmark for senior status but Loeber subsequently decided to determine seniority based on her own assessment of medical competence. Three anesthesiologists were classified as senior: Johanna Chookaszian (a white, American-born female), Howard Konowitz (a white male) and Tun Myint (an Asian-born male). Of the three, only Chookaszian was board- certified. On the other hand, in April 1988, Vakharia was classified as junior despite the fact that she was board-certified. Around the same time, two other female Asian-American anesthesiologists were also placed in junior status. Loeber wrote to each of the three indicating that she could not guarantee them work and suggesting that they explore employment opportunities elsewhere.

In June 1988, Vakharia requested that she be restored to full-time rotation and designated a senior anesthesiologist. Loeber refused, stating that the departmental caseload would not support another full-time position and that Vakharia had not demonstrated sufficient proficiency in dealing with complex cases. On the basis of a review conducted by the Quality Assurance Department, Loeber identified 66 cases in which Vakharia had demonstrated inadequate job performance. Vakharia complained to SCH's Medical Executive Committee (MEC) which appointed a task force to look into the matter. The task force recommended that the MEC defer to Loeber's evaluation as chair but voted to retain an outside consultant to conduct an independent review. By this time, working relations between Loeber and Vakharia had reached an all-time low.1

In November 1988, the American Society of Anesthesiologists (ASA), an independent association of anesthesiologists, was brought in to review the anesthesiology department. The ASA reviewers, Drs. Ronald Wender and Louis Blancato, were asked to address three specific issues: (1) the staffing needs of the department, (2) the quality of care provided by certain individual anesthesiologists and (3) the possible restructuring of the department.2 Wender and Blancato reviewed materials submitted by SCH and by Vakharia, conducted on-site visits to the hospital and interviewed individual anesthesiologists. One or both of them spoke with Vakharia on three occasions and Wender personally observed Vakharia at work in the operating room. The resulting ASA report, completed in June 1989, specifically criticized the quality of care provided by Vakharia and the two other female, Asian-American anesthesiologists. The report noted that all three anesthesiologists were responsible for "some very serious complications attributable to substandard care . . . indicative of a poor quality of anesthesia care, rather than a complication which one would expect as a natural result of anesthesia and/or surgery involved." Appellant's 2nd Supp. App., tab 6 at 13. In Vakharia's case, the report identified general problems intubating patients and cited inadequate management of complex classes of cases. The ASA recommended that the staff privileges of Vakharia and the two other female, Asian-American anesthesiologists not be renewed.3 SCH gave each of the three the option to resign. Only Vakharia chose to stay on and was duly suspended on July 31, 1989. In the meantime, Loeber had resigned on April 27, 1989, effective July 1, 1989.

On August 24, 1989, Vakharia requested a formal due process hearing under the SCH bylaws. An ad hoc peer review committee of five SCH physicians- -appointed by the hospital administration-- reviewed documentary evidence and conducted 19 days of hearings into the propriety of Vakharia's summary suspension. Attorneys were allowed to attend in an advisory capacity only, although Vakharia's attorney or, alternatively, one of her experts, was permitted to conduct cross- examination on her behalf. Of SCH's four witnesses, two were key: Loeber testified for SCH on the problems she had identified with the quality of Vakharia's care and Wender delivered his independent evaluation of Vakharia's performance gleaned through the ASA review process. For her part, Vakharia presented 21 witnesses in all. Seventeen SCH physicians testified that they had observed no improprieties on Vakharia's part and that they had confidence in her ability to care for their patients. Vakharia also brought in two experts: Dr. Floyd Heller, Associate Professor of Anesthesiology at Rush Medical College, and Dr. James O'Brien, Chief of Anesthesiology at Central DuPage Hospital. Heller and O'Brien generally defended the quality of Vakharia's care but were critical of some of her practices. Although Vakharia chose not to testify directly on her own behalf, she was questioned by SCH.

The committee found that "Dr. Vakharia's treatment of patients over a period of years did not meet the requisite standard of care and her professional judgment is so severely impaired that she is a potential threat to patients." Appellant's 2nd Supp. App., tab 7 at 6. Thus, it was the unanimous recommendation of the committee that Vakharia's suspension be affirmed and that she not be reappointed to the medical staff. The committee relied in large measure on the ASA report and on the testimony of Wender whom it considered "extremely well-qualified, neutral and objective." Id. at 3. In contrast, the committee found Vakharia's own witnesses unpersuasive.4 In short, the committee concluded that "none of Dr. Vakharia's witnesses effectively rebutted the compelling testimony of Dr. Wender and Dr. Loeber." Id.5

SCH adopted the committee's recommendation and terminated Vakharia's hospital privileges. Vakharia then unsuccessfully appealed the decision through two further levels of internal review: the appellate committee (a body appointed under the SCH bylaws) and the Board of Directors. Her termination was affirmed on September 13, 1990. Vakharia had initiated proceedings before the EEOC as early as August 4, 1989, which led in due course to the present lawsuit. Before the district court, she alleged (1) discrimination in violation of Title VII, the ADEA, and sec.sec. 1981 and 1985, (2) breach of contract, (3) breach of SCH bylaws, and (4) a Sherman Act...

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