Van v. Anderson

• Decision Date: 07 March 2002
• Docket Number: No. CIV.A. 3:99CV0311P.,CIV.A. 3:99CV0311P.
• Parties: Tuong B. VAN, M.D., Plaintiff, v. Allan ANDERSON, M.D., Jack Schwade, M.D., and Medical City of Dallas Hospital, Defendants.
• Court: U.S. District Court — Northern District of Texas

199 F.Supp.2d 550

Tuong B. VAN, M.D., Plaintiff, v. Allan ANDERSON, M.D., Jack Schwade, M.D., and Medical City of Dallas Hospital, Defendants.

No. CIV.A. 3:99CV0311P.

United States District Court, N.D. Texas, Dallas Division.

March 7, 2002.

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David William Townend, Brown Brown Chandler & Townend, Garland, TX, for Tuong B Van, Nhan Bui Nguyen, Ho Kuy Khac.

Dawn Ryan Budner, Sherri Turner Alexander, Gregory P. Supan, Stephanie S. Glickman, Bell Nunnally & Martin, Dallas, TX, for Allan Anderson, Jack Schwade, Medical City Dallas Hosp.

Harland A. Martin, Dallas, TX, pro se.

MEMORANDUM OPINION AND ORDER

SOLIS, District Judge.

Now before the Court are the following:

1. Defendants' Motion for Summary Judgment, with brief in support and appendix, filed June 15, 2001;

2. Plaintiff's Consolidated Response with Supporting Brief to Defendants' Motion for Summary Judgment, and appendix, filed July 12, 2001;

3. Defendants' Reply on Motion for Summary Judgment and Brief in Support, with appendix, filed on July 27, 2001;

4. Defendants' Motion to Strike Evidence in Connection with Plaintiff's Consolidated Response to Defendants' Motion for Summary Judgment and Brief in Support Thereof, with appendix, filed July 27, 2001;

5. Plaintiff's Response to Defendants' Motion to Strike Affidavit of Tuong B. Van, M.D., with Supporting Brief, filed August 6, 2001;

6. Defendants' Reply to Plaintiff's Response to Motion to Strike Evidence in Connection with Plaintiff's Consolidated Response to Defendants' Motion for Summary Judgment, and Brief in Support Thereof, filed August 20, 2001;

7. Plaintiff's Emergency Motion to Reopen Discovery and to Supplement the Witness List with Supporting Brief, filed January 8, 2002; and

8. Defendants' Response to Plaintiff's Emergency Motion to Reopen Discovery and to Supplement the Witness List and Brief in Support Thereof, filed January 11, 2002.

After a thorough review of the summary judgment evidence, the pleadings, the parties' briefs, and the applicable law, for the reasons set forth below, the Court is of the opinion that Defendant's Motion for Summary Judgment should be GRANTED. Further, the Court finds that Defendants' Motion to Strike Evidence in Connection with Plaintiff's Consolidated Response should be GRANTED in PART and DENIED in PART, with remaining parts DENIED as MOOT,¹ and Plaintiff's Emergency Motion to Reopen Discovery and to Supplement the Witness List should be DENIED.

BACKGROUND

Plaintiff Tuong B. Van, M.D., brings the current lawsuit before the Court against Medical City Dallas Hospital (hereinafter "Hospital"), and Doctors Allan Anderson and Jack Schwade, asserting claims of race and/or national origin under 42 U.S.C. § 1981. See Pl.'s Orig. Compl. at 7-9. Plaintiff's suit also includes additional claims against the Hospital for breach of contract and declaratory judgment, and allegations of defamation and interference with contractual relations against Defendants Anderson and Schwade. Id. at 9-11.

Dr. Van, who is an individual of Vietnamese ethnicity and origin, obtained his medical doctorate degree from the University of Texas School of Medicine at San Antonio in 1985. See Pl.'s Consolidated Resp. at 2 and Exh. A (hereinafter "Pl.'s Resp."). His post-graduate training included a general surgery residency from July 1985 through June 1986 at the University of Texas Health Science Center at San Antonio; a three year residency in internal medicine at Tulane University Medical Center in New Orleans, Louisiana, from July 1987 to June 1990; a one year fellowship in echocardiography at the University of Alabama Medical Center in Birmingham, Alabama from July 1991 to June 1992; and a fellowship in cardiology from July 1992 to June 1994 at the Louisiana State Medical Center in Shreveport, Louisiana. See Id. Shortly after returning to Texas, Dr. Van was appointed to the Medical Staff of the Hospital in August of 1994, where he obtained privileges to perform invasive cardiology procedures, including the performance of cardiac catheterizations.² See Id. at 3; see also Defs.' Br. Supp. Mot. Summ. J. at 7 (hereinafter "Defs.'s Br.").

According to Dr. Van, between the period of 1994 through late 1997, no concerns were ever raised to him regarding his medical practice at the Hospital. See Pl.'s Resp. at 3. However, on or about January 1, 1998, nurses at the Hospital filed an occurrence report against Plaintiff, alleging that he had been difficult with them when they had called on him to determine when he was going discharge a certain patient. See Defs.' Br. at 7; see also Defs.' App. Supp. Defs.' Mot. Summ. J. at 535-539 (hereinafter "Defs.' App."). Following this complaint, Dr. Allan Anderson, the then Chief of the Cardiology Section at the Hospital, had a telephone conversation with Plaintiff in early February 1998, to discuss this occurrence report. See Defs.'s App. at 1492 (Anderson Dep. at 13). During this conversation, however, Dr. Van asserts that Dr. Anderson made a race-based threat to him in which he had stated that: "he [Dr. Anderson] had been receiving (sic) a complaint from one or more of the nurses regarding [Plaintiff's] Oriental patients and that if [Plaintiff] did not take some unspecified action about [his] Oriental patients [Plaintiff] would be peer reviewed." Pl.'s Resp., Exh. B at 2 (Van Aff. at 2). When asked to clarify the problem, Plaintiff states that Dr. Anderson abruptly terminated their telephone conversation. See Id. Dr. Anderson, meanwhile, denies ever making such a statement to Dr. Van. See Defs.'s App. at 1495 (Anderson Dep. at 16).

Following this incident, Dr. Van alleges he interpreted this threat by Dr. Anderson to mean that he needed to reduce the number of his Asian patients at the Hospital, or face a peer review (and the possible removal of his privileges).³ See Pl.'s Resp., Exh. B at 3 (Van Aff. at 3). Thereafter, Plaintiff asserts that he "drastically reduc[ed] the number of [his] Asian patient admissions to the hospital; call[ed] in consultants wherever possible to provide back-up on cases, and referr[ed] as many cases out to other cardiologists." Id. Dr. Van estimates that by late 1997 he was admitting as many as 20 to 30 patients to the hospital each month (a majority of whom were Asian), and was performing an average of 50 to 75 angiograms per year. Id. Dr. Van also estimates that by 1998, he had reduced his practice at the Hospital by at least 50%, and again in 1999 by an additional 50%, leaving his total practice by end of August of 2000 to probably less than 10% of what it had been in December of 1997. Id.

Sometime later, in early 1998, Dr. Allan Schwade, the Chairman of the Cardiology Performance Improvement Committee ("CPIC" or "Performance Committee"), received a complaint from a fellow cardiologist at the Hospital, Dr. David Brown, concerning the number of catheterizations which had been performed on a particular patient treated by Dr. Van. See Defs.' App. at 1296, 1301-1302 (Schwade Dep. at 14, 19-20). As a result of this complaint, which was brought to the attention of the Performance Committee by Dr. Schwade, a targeted review was initiated on Plaintiff's cases for the next six months. See Defs.' Br. at 8. At about this same time, in April of 1998, Dr. Van submitted an application for reappointment to the medical staff of the Hospital. See Id. at 8-9. This reappointment was ultimately granted by the Board of Trustees on June 1, 1998, for a period of two years, subject to the outcome of the pending focus review.

Meanwhile, a second occurrence report was filed by the nursing staff against the Plaintiff on or about July 5, 1998. See Id. at 9; see also Defs.' App. at 541-544. This time the nursing staff complained that, among other things, Plaintiff had become loud and angry when he was informed that his desire to move a patient was against Hospital Policy. See Id.⁴

Subsequently, in September 1998, Dr. Van received a letter from Stephen Corbeil President and CEO of the Hospital, notifying him that, based on a report submitted by the CPIC, the Executive Committee of the Hospital, as well as the Privileges & Credentials Committee, had recommended that his application for reappointment to the medical staff be denied. See Pl.'s Resp., Exh. B at 5 (Van Aff. at 5 and Aff. Exh. B.).⁵ Plaintiff timely requested a hearing, which was commenced on April 7, 1999. See Id.⁶

At this hearing, Plaintiff asserts that Dr. Schwade testified to the Committee regarding the CPIC report and its attachments, which as he understood it, was the basis for both the Executive Committee and the Credentials Committee's adverse recommendations against him. See Id. Defendants now agree with Plaintiff that the CPIC report, which had been prepared by the Director of Quality Assurance at the Hospital, Ms. Mary Lou Bernhagen, contained a number of mistakes regarding medical facts in some of the underlying cases included in the report. See Id. at 7-13 (Van Aff. at 6-12); see also Defs.' Br. at 9, 12.⁷

After the Plaintiff identified some of these errors, the Hearing Committee recessed at 10:30 p.m. on April 7, 1999, and the hearing was not continued further. See Id. at 12. Dr. Van asserts that, in what he believes was a violation of the Hospital's bylaws, the Executive Committee later withdrew its recommendation against him, which resulted in the hearing panel being "unlawfully disbanded." See Pl.'s Resp., Exh. B. at 13 (Van Aff. at 13).⁸ Plaintiff also alleges that prior to the commencement of the 1999 hearing, in December 1998, Dr. Anderson again repeated a racist threat against him, this time stating that "because [Plaintiff] had not listened to him and not done more about [his] Oriental patients, that it would now have a detrimental effect upon [his] career." Id. at 14 (Van Aff. at 14).

Thereafter, by letter dated June 25, 1999, Dr. Wayne Taylor, Chief of Staff for 1999,...