United States District Court, D. South Carolina, Columbia Division
Afraaz R. Irani, M.D., Plaintiff,
Palmetto Health, University of South Carolina School of Medicine, David E. Koon, M.D., in his individual capacity, and John J. Walsh, M.D., in his individual capacity. Defendants.
OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT,
MOTION TO COMPEL, AND MOTION TO STRIKE ECF NOS. 136, 137,
139, 146, 175
CAMERON MCGOWAN CURRIE SENIOR UNITED STATES DISTRICT JUDGE
this action. Plaintiff Afraaz R. Irani, M.D.,
("Plaintiff or "Dr. Irani") seeks relief
relating to his treatment during and termination from an
orthopaedic surgery medical residency program
("Residency Program" or "Program") and
subsequent events related to that termination. Defendant
Palmetto Health ("Palmetto Health") was the
official sponsor of the Residency Program and operated the
Program in affiliation with Defendant University of South
Carolina School of Medicine ("USC-SOM")
(collectively "Entity Defendants").
David E. Koon, Jr., M.D. ("Dr. Koon"), a member of
the USC-SOM faculty, was the Program Director for the
Residency Program at all times relevant to this action.
Defendant John J. Walsh, IV, M.D. ("Dr. Walsh") was
the Chair of the Orthopaedic Surgery Department at USC-SOM
during the same period. Both Drs. Koon and Walsh are sued in
their individual capacities (collectively "Individual
matter is before the court on Defendants’ motions for
summary judgment, ECF Nos. 136, 137, 139, and two related
evidentiary motions. For the reasons set forth below,
Defendants’ motions for summary judgment are granted as
to all causes of action, though not necessarily on all
grounds argued. The two evidentiary motions are rendered moot
by the summary judgment ruling.
judgment should be granted if "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). It is well established that summary
judgment should be granted "only when it is clear that
there is no dispute concerning either the facts of the
controversy or the inferences to be drawn from those
facts." Pulliam Inv. Co. v. Cameo Properties,
810 F.2d 1282, 1286 (4th Cir. 1987). The party moving for
summary judgment has the burden of showing the absence of a
genuine issue of material fact, and the court must view the
evidence before it and the inferences to be drawn therefrom
in the light most favorable to the nonmoving party.
United States v. Diebold, Inc., 369 U.S. 654, 655
Rule 56(c)(1) provides as follows:
(1) A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .,
admissions, interrogatory answers or other materials; or
(b) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1).
"cannot create a genuine issue of material fact through
mere speculation or the building of one inference upon
another." Beale v. Hardy, 769 F.2d 213, 214
(4th Cir. 1985).
"[m]ere unsupported speculation . . . is not enough to
defeat a summary judgment motion." Ennis v. National
Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62
(4th Cir. 1995).
following facts are presented in the light most favorable to
Dr. Irani, the party opposing summary judgment.
Irani, who was born and raised in California, is of Indian
(or Indian and Iranian) descent and a member of the
Zoroastrian faith. Irani decl. ¶ 2 (ECF No. 148-2);
Charge of Discrimination, ECF No. 136-5 at 36. He received
his undergraduate and medical degrees from Stanford
University. Irani decl. ¶ 3.
for Residency Program.
fall of 2009, Dr. Irani interviewed for the Orthopaedic
Surgery Residency Program sponsored by Palmetto Health in
affiliation with USC-SOM. Koon first aff. ¶ 7 (ECF No.
136-3); Walsh aff. ¶ 8 (ECF No. 136-4). Drs. Koon and
Walsh participated in Dr. Irani’s interview, both
rating Dr. Irani as one of the year’s top ten
candidates. Id.; Interview Score Sheets. ECF No.
136-9 at 3, 4 (reflecting ratings of nine and ten on a
ten-point scale). Two other physicians participated in the
process: Dr. Guy placed Dr. Irani in the top ten or top third
(indicating he "could go either way"); and Dr.
Hoover placed Dr. Irani in the top third. ECF No. 136-9 at 1,
2. Based on these scores and his own preferences, Dr. Irani
matched and accepted an offer for the Residency Program.
Walsh aff. ¶ 8; Koon first aff. ¶ 7.
Year. Dr. Irani began his first ("PGY-1") year in
the five-year Residency Program in July 2010. Irani decl.
¶ 5; PGY-1 Resident Agreement of Appointment
("Resident Agreement") (ECF No. 136-5 at 4-10). The
only other resident in the PGY-1year was Dr. Goodno, a
Caucasian male. Irani decl. ¶¶ 5, 16, 75; Goodno
dep. at 1, 25 (ECF No. 150-2).
Irani received mixed ratings his first year. ECF No. 152-1 at
1-58 (individual evaluations); ECF No. 136-3 at 31-47
(summary report of evaluations). While most raters gave him
"satisfactory" or better ratings, a few gave him
marginal or unsatisfactory ratings in certain areas.
Evaluation Summary, ECF No. 136-3 at 31. Comments were,
likewise, mixed, with most being positive but some not.
Id. at 32. Negative comments from at least five
physicians (Drs. Jones, Bynoe, Mastriani, Ross, and Koon)
included concerns about legibility of handwriting, inadequate
sense of urgency or decorum, sarcasm and inappropriate use of
humor, failing to demonstrate he was "completely
invested in caring for patients, " a
"lackadaisical" attitude toward the service, a need
for improved motivation and people skills, and other similar
concerns. Id. at 32, 35, 36, 40, 43.
least two raters (Drs. Jones and Bynoe) who gave negative
comments early in the PGY-1 year noted improvement in later
rotations, though one (Dr. Jones) stated Dr. Irani
"still needs to take responsibility for total patient
care[.] . . . I think his improvements are promising but he
still has a lot of room for further improvement."
Id. at 34, 36. Dr. Koon noted he had "spoken
with Dr. Irani at length about his performance thus far in
his internship. He needs significant improvement in several
areas and he seems to understand these issues."
Id. at 35. Dr. Irani himself later described his
PGY-1 year as a rocky start. See Grievance Committee
Hearing Transcript ("Hearing trans.") at 82 (ECF
No. 150-1 at 83).
Koon Comment about Residents in Other Programs.
December 2010, Dr. Koon commented to Dr. Irani that the
Orthopaedic Surgery Department generally had the best
residents and had high expectations for those residents.
Irani decl. ¶ 9. Comparing residents in different
departments, Dr. Koon added one department was "just
happy to have someone who can speak English."
Id.; but see Hearing trans. at 48 (ECF No.
150-1) (Dr. Irani statement comment was made during a meeting
in August 2011).
Irani was promoted to PGY-2 status. Irani decl. ¶ 10. He
signed a new Resident Agreement for the year beginning July
1, 2011. ECF No 136-5 at 11-17.
2010 - Journal Club Article: "How to Swim with
beginning of his PGY-2 year, Dr. Irani was assigned to
present "How to Swim with Sharks: A Primer" as a
journal club article. Irani decl. ¶ 11; see
also ECF No. 152-2 (reprint of article from Perspectives
in Biology and Medicine Summer 1987; Vol. 30 No. 4, pp.
486-89). Dr. Koon commented the article was not randomly
assigned. Irani decl. ¶ 11. Dr. Irani found the
assignment and comment humiliating. Id. The article
has been presented by other residents in other years in the
Residency Program. Goodno dep. at 52 (ECF No. 168-3 at 3);
Koon dep. at 67 (ECF No. 149-3 at 19).
the same month, Dr. Irani sent Dr. Koon an email suggesting
an article from the Archives of Internal Medicine as "a
kinda fun/interesting article for journal club." ECF No.
136-8 at 37 (July 13, 2010 email exchange). Dr. Koon emailed
a response questioning why Dr. Irani was reading the Archives
of Internal Medicine and stating "let me know if you are
not satisfied with the articles selected for our journal
10-12, 2011 - Nurse’s Complaint about Treatment of
August 10, 2011, a nurse’s report complaining about
care provided to a "Mr. B" by Dr. Irani and an
attending physician was forwarded to Drs. Walsh and Koon. ECF
No. 136-3 at 49-51. The reporting nurse initially made the
report through her supervisors on July 11, 2011, the date Mr.
B was treated for a severe injury to his arm. Id. at
50. The nurse’s primary concern was Dr. Irani and the
attending physician failed to treat the patient with
compassion. Id. She reported she had experienced
"many similar encounters with both of these
physicians" and also suggested Dr. Irani had asked her
to misrepresent the amount of saline used to irrigate the
Koon forwarded the nurse’s report to Dr. Irani that
same day, asking for Dr. Irani’s version of events.
Id. at 49. Dr. Irani’s August 10, 2011
response recounted a more compassionate version, explaining
he inspected the wound and evaluated the patient’s
"pain level before approving a possible overdose of
narcotics to an 80 year old male." Id. at
48-49. He stated he properly introduced himself to the
patient, though the nurse may not have heard him do so, and
remained with the patient rather than going to see the family
based on the attending’s instructions to remain at
bedside. Dr. Irani noted the patient expressed appreciation
for his care and they had "great interactions" when
they saw each other on subsequent days. Id.; see
also Irani decl. ¶ 14.
Koon invited the nurse’s response to Dr. Irani’s
version of events. ECF No. 136-3 at 48. The nurse responded
on August 12, 2011, stating she wished Dr. Irani had acted as
he claimed. Id. (insisting she had to twice ask Dr.
Irani to allow her to administer pain medication and he
smirked at her request).
15, 2011 - Level II Remediation.
August 15, 2011, Dr. Irani was called into a meeting with Dr.
Koon and told he was being placed on (or recommended for
placement on) Level II remediation. Irani decl. ¶¶
12-13. He was provided a memorandum signed by Drs. Walsh and
Koon with a list of seven deficiencies. ECF No. 136-3 at 52.
The deficiencies included: (1) inappropriate care of Mr. B
(lack of compassion, failure to give adequate pain
medication, and asking the nurse to lie about initial
irrigation and debridement); (2) poor communication with
patients, families, peers and attendings; (3) time management
and tardiness to conferences, clinics and the operating room;
(4) ineffective prioritization; (5) two instances of
substandard care (using Vicryl to close a wound and failing
to evaluate a Veteran’s Administration ("VA")
patient with post-operative cellulitis who came to the VA
emergency room); (6) substandard evaluations during his PGY-1
year, and (7) lack of attention to detail in initial PGY-2
rotations. Id. The memorandum also listed
remediation measures in somewhat more specific terms and
referred to prior counseling sessions between Dr. Irani, his
chief resident, attending physicians, and Program Director
(Dr. Koon). Id. (recommending Level II remediation
from August 15, 2011, to December 1, 2011).
Irani sought clarification of some of the listed deficiencies
and remediation measures. Irani decl. ¶ 13. Dr. Koon
responded the question showed Dr. Irani lacked insight.
Id. According to Dr. Irani, Dr. Koon also stated he
had fired residents before, including a resident in his PGY-5
year. Irani decl. ¶ 12.
of the Level II remediation was sought and obtained from the
Executive Committee of the Graduate Medical Education
Committee ("GMEC") on August 15, 2011, after Dr.
Koon’s meeting with Dr. Irani. See ECF No.
136-3 at 53. In seeking approval, Dr. Stephensprovided members
of the Excecutive Committee information on the "action
that precipitated" the remediation and stated she was
working with Dr. Koon to express remedial measures in terms
of specific outcome. Id.; see also ECF No.
136-9 at 22 (email to Dr. Koon seeking greater
22, 2011 - Dr. Irani’s Response.
August 22, 2011, Dr. Irani sent Dr. Stephens a detailed
written response to each of the seven deficiencies noted. ECF
No. 136-3 at 56-57 (indicating a number of the listed items
were the result of miscommunication, committing to work
towards better communication, and concluding he took the
matter seriously due to the potential impact on fellowship
and job opportunities). Dr. Stephens responded a few days
later, thanking Dr. Irani for his commitment to improvement
and forwarding the response to Dr. Koon. Id. at 56.
On August 27 2011, Dr. Koon forwarded this email string to
five faculty members and the practice manager advising them
Dr. Irani was on Level II remediation until December 1, 2011,
and requesting their attention to Dr. Irani’s clinical
performance in future evaluations. ECF No. 136-9 at 31.
2011 Grievance of Level II Remediation.
Irani unsuccessfully pursued grievance of the Level II
remediation through the first three steps (review by Drs.
Koon, Walsh, and Stephens). The remediation was upheld at
each stage. ECF No. 136-3 at 60, 63; ECF No. 136-8 at 46, 47;
ECF No. 136-9 at 34. Dr. Irani construed a comment from Dr.
Walsh as discouraging pursuit of the grievance, although he
did pursue it to the next step (review by Dr. Stephens).
Irani decl. ¶ 21 (referring to Dr. Walsh’s
statement both he and Dr. Irani were busy orthopaedic
surgeons and when he had "to sit here and answer
questions about all this, it just gets in the way when [he]
could be doing other things"); but see ECF No.
136-8 at 46 (September 7 email to Dr. Stephens indicating Dr.
Koon "encouraged me to talk to you more and/or attempt
to appeal the decision if I had concerns").
II Remediation Meetings.
updates were scheduled and held throughout Dr. Irani’s
Level II remediation. See, e.g., ECF No.
136-3 at 59 (Dr. Koon’s September 19, 2011 email
referring to meetings held September 7 and 10 and a six-month
evaluation conducted on September 19, 2011, scheduling
progress report meetings for October 3, November 7, and
setting post-remediation review for December 5 faculty
meeting). A September 22, 2011 report by Dr. Walsh summarized
a September 20 meeting between Drs. Walsh, Grabowaski, and
Irani, noting Dr. Irani’s progress in his residency was
satisfactory with a few exceptions. ECF No. 136-3 at 61-62
(addressing all deficiencies with particular attention to Mr.
B. incident). This memorandum reports Dr. Irani’s
response as "clear and forthright, " and
acknowledging a "need to improve his performance."
Id. at 62. Dr. Walsh still felt there was "a
small gap in his level of insight" reflected in Dr.
Irani’s view that some listed deficiencies were simply
others’ misperceptions, but concluded the noted
shortcomings were "remediable in a straight forward
fashion" and stated his expectation Dr. Irani would
"put these issues behind him." Id.
Irani received and acknowledged receipt of a copy of the
September 22, 2011 memorandum during an October 3, 2011
meeting with Drs. Walsh and Koon. Id. at 62, 63. Dr.
Koon’s brief summary of that meeting was similarly
positive, indicating Dr. Irani was provided feedback on his
remediation and "appear[red] to have gained some insight
into his deficiencies." Id. at 63. It also
noted Dr. Guy had provided constructive feedback and Dr.
Irani was "working hard to improve in these areas."
Id. (setting the next meeting for November 7, 2011).
3, 2011 - Discharge Summary Emails.
early November, Dr. Koon instructed Dr. Irani to dictate a
discharge summary. There was a delay in completion of this
task, which Dr. Irani attributes to a miscommunication
regarding the patient for whom the discharge summary was to
be prepared. Irani decl. ¶ 22-24. On November 3, 2011,
Dr. Irani sent Dr. Koon an email explaining he had
"actually never participated in the patient’s
care" and was "not sure how [he was] responsible
for the discharge order" but had "gone ahead and
dictated the summary[.]" ECF No. 136-3 at 65 (adding
"the only thing I can think of is that Dr. Wood asked me
to put in the discharge order").
Koon responded indicating substantial displeasure with Dr.
Irani’s email. ECF No. 136-3 at 65. He noted he had
asked Dr. Irani to complete the task three times and stated
he "would have NEVER in a million years sent a response
like this to my program director, especially in the midst of
academic remediation." Id. Dr. Koon copied the
two senior residents, Drs. Hoover and Wood, stating he was
"open to any suggestions." Id.
7, 2011 - Email to Dr. Stephens.
November 7, Dr. Irani emailed Dr. Stephens noting he had
dropped his grievance and indicating he did so based on (1)
positive feedback during the October 3, 2011 meeting and (2)
a statement by either Dr. Koon or Dr. Walsh leading him to
believe continuing the grievance process would strain his
relationship with them. ECF No. 136-8 at 50. Dr. Irani
referred to an October 26, 2011 report from Dr. Koon that he
had "heard increased complaints" recently.
Id. Dr. Koon referred Dr. Irani to Drs. Wood and
Mazoue for specifics, but neither physician indicated any
concerns when Dr. Irani checked with them. Id.
21, 2011 - Meeting with Drs. Koon and Wood.
November 21, 2011, Dr. Irani met with Dr. Koon to review his
progress on remediation. Irani decl. ¶ 25. Dr. Koon
reported he would recommend Dr. Irani be moved to Level I
when his Level II remediation ended. Id. Dr. Irani
was encouraged that this meant he had corrected the
deficiencies, but concerned Dr. Koon cited earlier incidents
that "had long been resolved."
25-27, 2011 - Thanksgiving Weekend Caller.
the Thanksgiving weekend, a recent surgical patient of Dr.
Koon’s called in three times regarding wound care. Dr.
Irani spoke with the patient once and Dr. Goodno twice. Irani
decl. ¶¶ 35, 36. The patient reported to Dr. Irani
that a scab had come off her surgical wound and she had some
drainage. Id. ¶ 35. Dr. Irani advised
the patient he could not tell her anything without seeing the
wound and encouraged her to come in.
Id. Dr. Irani understands Dr. Goodno’s
conversations with the patient were to the same effect.
Id. ¶ 36. The patient did not come in until the
following Monday, at which time she had an infection.
See, e.g., ECF No. 136-3 at 64 (Dr. Koon
November 29, 2011 Memorandum of Record); Koon first aff.
28, 2011 - Alleged Failure to Follow Dr. Grabowski’s
Instructions to Obtain Same-Day MRI.
November 28, 2011, Dr. Grabowski directed Dr. Irani to obtain
a same-day MRI on an outpatient. E.g., Irani decl.
¶ 32. Someone reported to Dr. Koon that Dr. Irani had
not followed instructions, instead scheduling the MRI for a
later date, with the error not being corrected until another
physician intervened. See ECF No. 136-3 or 64 (Dr.
Koon memorandum). Dr. Irani maintains that the medical
assistant was initially able only to schedule the MRI for
"later that week, " an appointment Dr. Irani held
while he conferred with his chief resident to determine how
to obtain an earlier MRI and then followed those
instructions, ultimately obtaining a same-day MRI for the
patient. Irani decl. ¶ 32.
29, 2011 - Dr. Koon Memorandum of Record.
November 29, 2011, Dr. Koon prepared a memorandum of record
addressing his November 21, 2011 meeting with Dr. Irani, and
the two intervening patient care incidents (Thanksgiving
weekend caller and MRI instructions). ECF No. 136-3 at 64.
Dr. Koon characterized the November 21 meeting less favorably
than Dr. Irani, stating Dr. Wood raised several instances in
which Dr. Irani was still performing below his level of
training and Dr. Koon raised the inappropriateness of Dr.
Irani’s November 3 email about the discharge summary.
Id. (also referring to verbal counseling about
inappropriate pain management with one of Dr. Walsh’s
post-operative patients). Dr. Koon also described Dr.
Irani’s reaction to the anticipated recommendation he
be moved to Level I as "a long sigh and a rolling of the
eyes" followed by a comment this would only continue his
"overhead, " which Dr. Irani explained referred to
time spent keeping a log of his activities while on
probation. Id.; see also Koon first aff.
¶ 20; Irani decl. ¶ 25 (stating he asked for
clarification when advised Dr. Koon would recommend Level I
remediation but not denying Dr. Koon’s characterization
of his reaction).
Koon concluded: "Dr. Irani continues to display
behaviors which are inappropriate and unprofessional. His
progress will be re-evaluated at our next faculty meeting on
Monday 05 DEC 11. We have asked for his presence at this
meeting." ECF No. 136-3 at 64. Dr. Koon sent this
memorandum to Drs. Walsh, Wood, Hoover and Stephens by email
on November 29, 2011. ECF No. 136-9 at 45. Dr. Stephens
responded the next day that Dr. Koon should be sure to
"approach these deficiencies in terms of specific
examples of what is not acceptable and expectations."
ECF No. 136-9 at 47.
5, 2011 - Faculty Meeting.
Irani attended the December 5, 2011 faculty meeting during
which Dr. Koon recited a list of concerns (including items in
the August 15 and November 29, 2011 memoranda) and stated Dr.
Irani continued to lack insight into his problems. Irani
decl. ¶ 26. Dr. Irani felt he was not given a chance to
respond to these and other accusations of more recent events,
which he claims were patently false (e.g., Dr.
Koon’s statements relating to the Thanksgiving weekend
caller and inappropriate pain medication instructions to
another post-surgical patient). Id. ¶¶ 26,
31, 35-37. Dr. Koon asked "very pointed questions in an
intimidating manner" including whether Dr. Irani
"wanted to do orthopaedics." Id.
¶¶ 27, 28.
allegation Dr. Irani failed to follow Dr. Grabowski’s
instructions to obtain a same-day MRI was raised for the
first time in this meeting. Id. ¶ 32. When Dr.
Irani tried to explain the allegation was "entirely
false, " Dr. Koon responded this was exactly what he was
talking about regarding Dr. Irani’s lack of insight and
refusal to accept fault. Id. ¶ 33. Dr, Koon
also raised new allegations of lack of professionalism and
complaints of poor patient management from trauma case
managers, which surprised Dr. Irani as he had received
positive feedback from these individuals. Id. ¶
faculty voted unanimously to recommend to the GMEC that Dr.
Irani be placed on Level III remediation, with suspension of
clinical duties. Koon first aff. ¶ 22; Walsh aff. ¶
18. Dr. Irani apparently was not informed of this
recommendation at that time. Dr. Koon did, however, email Dr.
Irani on December 7, 2011, stating Dr. Irani was required to
attend a psychological evaluation to better structure the
remediation. ECF No. 136-3 at 77 (indicating evaluation was
scheduled for December 12, 2011 at 4:30 p.m.).
7-9, 2011 - Trauma Patient Incident
December 7, 2011, Dr. Irani was involved in the care of a
trauma patient ("TF375"). Two nurses complained to
their supervisors about the care provided by Dr. Irani and a
first year orthopaedic resident, Dr. Nathe.
136-3 at 71-74. According to one nurse, the patient
reported she was uncomfortable with the residents, felt they
were unorganized, and she was scared and felt thrown around.
Id. at 74. Both nurses’ detailed statements
were consistent with the patient’s concerns, focusing
on an absence of compassionate care. ECF No. 136-3 at 71-74.
Other concerns included inappropriate comments in front of
the patient, treating a nurse as "invisible, " and
the chaotic nature of the scene. Id. One nurse
concluded she had never, in her five years at Palmetto
Health, "felt so uneasy, so upset, or like [she] had to
help save the patient from what was going on."
Id. at 73 (noting she involved two other nurses to
help address the situation including calling the attending
physician). Dr. Koon was apparently first informed of the
incident orally on December 8, 2011. Id. at 71. The
nurses’ emailed reports were forwarded to him the
following day. Id.
9, 2011 - Suspension.
December 9, 2011, Dr. Walsh informed Dr. Irani by telephone
he was being suspended pending an investigation into the
TF375 incident. Irani decl. ¶ 45; see also
Walsh aff. ¶ 19 (averring GMEC Executive Committee
approved immediate suspension on December 9, 2011, pending
review by full GMEC on December 13, 2011). Dr. Walsh assured
Dr. Irani all sides of the story would be gathered, but Dr.
Irani contends Dr. Walsh did not seek Dr. Irani’s
version of events or interview witnesses whose names Dr.
Irani provided. Id. ¶¶ 45-48; but
see ECF No. 136-3 at 68-70 (Dr. Nathe’s December
11, 2011 written statement).
12, 2011 - Cancellation of Appointment.
Irani cancelled his appointment with the psychologist
approximately one hour before the scheduled time because he
"wasn’t feeling well enough . . . to do the
testing." ECF No. 136-3 at 78 (December 12, 2011 email
referring to events of preceding Friday, the day Dr. Irani
was informed of his suspension).
12, 2011 - Memorandum Recommending Level III
Walsh and Koon signed a memorandum of record on December 12,
2011, reciting the history of Dr. Irani’s remediation,
summarizing the December 5, 2011 faculty meeting and
incidents addressed in that meeting, and reporting the
post-meeting TF375 incident. ECF No. 136-3 at 66, 67
(characterizing Dr. Irani’s actions during the faculty
meeting as refusing to give direct answers to several
questions and failing to take responsibility for several
patient-care incidents). The memorandum recommends to the
GMEC that Dr. Irani be placed on Level III remediation with
"suspension from patient care" and a leave of
absence from December 9, 2011, through at least January 30,
2012. Id. at 67 (also recommending Dr. Irani be
required to complete psychological testing and any
recommended counseling). The memorandum states Dr. Irani will
be given a copy and reminds him of his grievance rights.
December 13, 2011, Dr. Koon advised Dr. Irani by email the
GMEC had approved the Level III remediation and suspension
through January 30, 2012. ECF No. 136-3 at 79 (also advising
Dr. Irani he must reschedule the cancelled appointment and of
his grievance rights); see also Irani decl. ¶
46 (stating he was given the December 12, 2011 memorandum
when he was told of the suspension); ECF No. 136-3 at 80
(December 15, 2011 email from Dr. Koon advising Dr. Irani he
will be terminated if he does not complete the psychological
evaluation by January 15, 2012, and offering three
16, 2011 - Dr. Irani Email Exchange with Dr.
December 16, 2011, Dr. Irani emailed Dr. Stephens indicating
he wanted to initiate the grievance process and stating he
discontinued his prior grievance to avoid jeopardizing his
relationship with his attendings. ECF No. 136-3 at 81, 82. He
attributed the "derailed" relationship to Dr.
Koon’s reaction to his November 3, 2011 email regarding
the discharge summary. Id. at 81. Dr. Irani asked
for documents relating to the suspension, including TF375, so
he can "better understand the situation."
Id. at 82. Dr. Stephens responded reminding Dr.
Irani of the proper grievance process. Id. at 81.
She did not provide documents. Id.
19, 2011 - Meeting with Dr. Walsh.
December 19, 2011, Dr. Irani met with Dr. Walsh. Irani decl.
¶¶ 50-52. Dr. Irani provided his recollection of
the treatment of TF375 and asked Dr. Walsh to speak with
witnesses including the family. Id. ¶ 50. Dr.
Walsh responded Dr. Irani’s version did not make sense
and Drs. Irani and Nathe should have called for additional
help. Id. ¶ 51. Dr. Irani stated they attempted
to get help but none was offered. Id. Rather than
accepting Dr. Irani’s version, Dr. Walsh insisted Dr.
Irani lacked insight, criticized the quality of his work and
presentations, and suggested they had reached a point where
there was a "lack of trust." Id.; see
also ECF No. 136-3 at 83 (Dr. Walsh’s
contemporaneous memorandum of record summarizing the meeting
from his perspective, with Dr. Irani’s January 18, 2012
acknowledgement of receipt).
3, 2012 - Meeting with Dr. Stephens.
Irani met with Dr. Stephens on January 3, 2012, as part of
the grievance process. E.g., Irani decl. ¶ 53;
ECF No. 136-9 at 70 (Dr. Stephens’ notes of the
meeting). Dr. Irani recalls complaining the faculty had not
sought his side of the story before the suspension and
relating a concern Dr. Koon was biased against him, treated
him differently, and had called Dr. Irani "racially
charged names like ‘Achmed the Terrorist.’"
Irani decl. ¶ 53. He gave Dr. Stephens a list of
witnesses relating to TF375 and "implored her to perform
a careful review" of this incident. Id. He
again requested documentation of the complaints. Id.
to Dr. Stephens’ notes, Dr. Irani questioned Dr.
Koon’s "sudden change" from the November 21,
2011 meeting (when Dr. Koon indicated Dr. Irani would likely
be moved to Level I remediation), pointed to four
inaccuracies in the reasons given for his suspension
(characterizing the reasons given as "inaccurate and
false"), and offered an excuse for being late for rounds
twice after November 21(a systemic failure in the Android
phone). ECF No. 136-9 at 70; see also ECF No. 136-3
at 86, 87 (Dr. Irani’s January 4, 2012 email to Dr.
Stephens reiterating his concerns, attaching his written
summary of the TF375 incident, noting he has had only two
complaints from ancillary staff and claiming both complaints
involved the same individuals); Id. at 86 (Dr.
Stephens’ January 5, 2012 response reminding Dr. Irani
he must complete psychological evaluation by January 15 and
addressing concerns regarding rescheduling).
5, 2012 - Dr. Stephens’ Meeting with Dr. Koon.
January 5, 2012, Dr. Stephens met with Dr. Koon as part of
her investigation of Dr. Irani’s grievance.
See ECF No. 136-10 at 8 (Stephens’ typed notes
of the meeting). Dr. Koon’s version of events, as set
forth in Dr. Stephens’ notes, indicates he provided
details consistent with the December 12, 2011 memorandum of
record. In addition, as to the TF375 incident, Dr. Koon
reported interviews of the cast technician and Dr. Nathe,
both of whose versions were "less caustic" than the
nurses’ versions. Id. He also reported
interviewing Dr. Jones whose view was "the technical
ortho[paedic] care was handled appropriately, but the
communication had not been." Id. Dr. Koon also
noted the faculty had recommended suspension before the TF375
incident occurred, which incident only reinforced the
11-16, 2012 - Dr. Stephens’ Denial of
January 11, 2012, Dr. Stephens emailed Dr. Irani advising him
she was denying his grievance of his December 9, 2011 Level
III remediation and suspension based on the information
available to her and "further discussions with several
others." ECF No. 136-3 at 88. She directed Dr. Irani to
the Resident Manual for further steps in the grievance
Irani emailed Dr. Stephens on January 13, 2012, again asking
for documentation of the complaints relating to TF375 so he
could "understand the complaints against me and . . .
move forward." ECF No. 136-10 at 17. Dr. Stephens
responded he had already "seen the issues specific to
the trauma patient situation" and should be focusing on
"meeting the terms of your remediation plan" rather
than "gathering documents." Id.
18, 2012 - Meeting with Dr. Walsh.
January 18, 2012, Dr. Irani met with Dr. Walsh. Irani decl.
¶¶ 54-58. Dr. Irani advised Dr. Walsh his main
concern was the effect the suspension would have on his
graduation date and future opportunities and indicated his
willingness to drop his grievance if these concerns were
resolved. Id. ¶ 54. Dr. Walsh responded he
would discuss these concerns with Dr. Stephens. Id.
Irani also requested documentation regarding the TF375
incident from Dr. Walsh. Id. ¶ 55. Dr. Walsh
responded the suspension would have occurred even without
this incident and expressed disbelief about Dr. Irani’s
version of events. Id.
Irani expressed frustration at being told he lacked insight
when no one would answer his questions or listen to his side.
Id. ¶ 56. Dr. Walsh asked him to think about
how he wanted to "‘tell his side of the
story’" and "explicitly said ‘[i]t
didn’t have to involve Dr. Koon.’"
Id. ¶ 57 (Dr. Irani declaration quoting Dr.
20, 2012 - Psychological Evaluation.
required psychological evaluation was completed on or before
January 20, 2012, and considered timely. ECF No. 136-3 at
89-98 (heavily redacted report). The report does not appear
to have had any significant influence on remediation.
E.g., ECF No. 136-10 at 19 (email referring to
26, 2012 - Missed Grievance Deadline.
Irani emailed Dr. Walsh on January 24 and 26, 2012, following
up on their January 18 meeting, most critically inquiring
whether the suspension might be recharacterized as a leave of
absence. ECF No. 136-3 at 99; ECF No. 136-8 at 79, 80. Having
not heard back from Dr. Walsh by January 26, 2012, the date
Dr. Irani believed was the relevant deadline, Dr. Irani
requested a Grievance Committee hearing. Irani decl.
¶¶ 58, 59. The request was denied as one day late.
Id. ¶ 60 (noting Palmetto Health rejected Dr.
Irani’s argument the delay should be excused because he
assumed Martin Luther King Day was not counted as a
"business day, " which term was not defined in the
24-30, 2012 - Communications Regarding Remediation
January 24 and 28, Dr. Stephens, human resources staff, and
Dr. Koon exchanged drafts of a new or updated remediation
plan. ECF Nos. 136-10 at 20-29. These efforts culminated in a
January 31, 2012 memorandum of record and attached Level II
remediation plan. Id. at 30-35, 39. On January 28,
2012, Dr. Koon emailed Drs. Irani, Voss, Wood, Hoover and
Stephens setting a meeting date for January 31, 2012, to
discuss the next step in the remediation process. ECF No.
136-3 at 100; ECF No. 136-10 at 36 (Dr. Irani response plan
Walsh also emailed Dr. Irani on January 29, 2012, responding
to Dr. Irani’s January 26, 2012 email inquiry regarding
treating the suspension as a leave of absence. ECF No. 136-8
at 81. Dr. Walsh characterized his prior statement as
explaining he lacked authority to change the wording of the
suspension and "doubted it could happen at all."
Id. (noting the deadline for further grievance had
now passed). On January 30, 2012, believing it consistent
with Dr. Walsh’s instruction to think about how to tell
his side, Dr. Irani emailed Dr. Walsh expressing a desire to
have Dr. Guy handle the remediation process going forward and
explaining the reasons for his request. ECF No. 136-8 at 83;
Irani decl. ¶ 61.
30-31, 2012 - Faculty Meeting and New Remediation
Irani’s request to have Dr. Guy oversee his remediation
was denied at a January 30, 2012 faculty meeting. Irani decl.
¶ 62 (describing Dr. Koon’s reaction to the
request as angry and confrontational). The faculty
recommended Dr. Irani be placed on Level II remediation from
February 6 through June 15, 2012, and proposed a detailed
remediation plan, both subject to approval by the GMEC. ECF
No. 136-3 at 101-05 (memorandum of record and attached
detailed remediation plan). The proposed plan placed Dr.
Irani on Dr. Voss’s service and required bi-weekly
meetings with Dr. Voss and monthly meetings with Dr. Koon.
Id. Dr. Irani signed the memorandum of record on
February 1, 2012, adding a notation that he attempted to
appeal his suspension. Id. at 101, 105.
1-23, 2012 - Return from Suspension.
Irani returned from suspension on February 1, 2012. ECF No.
136-10 at 47. He was placed on Dr. Voss’s service and
received a positive report from Dr. Voss at his first
bi-weekly meeting. Irani decl. ¶ 64 (after two weeks,
Dr. Voss reported Dr. Irani "was doing well" and
should "just keep on doing what [he] was doing").
During the same period, Dr. Guy helped Dr. Irani explore
alternative careers. ECF No. 136-10 at 48-52 (emails between
Drs. Irani and Guy and with potential employers).
24-29, 2012 - Spine Patient "L.O."
February 24, 2012, Dr. Irani was assisting Dr. Grabowski in
the care of post-surgical spine patient "L.O."
While details are disputed, it is undisputed Dr. Irani (1)
received a call from a nurse reporting the patient was or
might be experiencing difficulty walking, (2) did not
immediately check on the patient after receiving this call,
(3) discovered serious neurological deficits when he did
examine the patient and (4) did not make a contemporaneous
record of his findings. Irani decl. ¶¶ 65-67
(explaining why he believes his actions were appropriate
under the circumstances). It is also undisputed Dr. Grabowski
emailed Dr. Koon on February 27, 2012, complaining Dr.
Irani’s care of the patient was inappropriate both due
to delay in examining the patient and in failing to document
his findings. ECF No. 136-3 at 113 (Dr. Grabowski report to
Dr. Koon, indicating Dr. Irani was informed of concern at
11:30 a.m., had not seen the patient when he called Dr.
Grabowski at 12:30 p.m., was further delayed because patient
was in the bathroom, and ultimately reporting back at about
1:30 p.m.); ECF No. 136-10 at 53 (Dr. Koon’s February
27 email forwarding Dr. Grabowski’s report to Dr.
Walsh, suggesting Dr. Walsh also ask Dr. Grabowski about Dr.
Irani’s "wrong site surgery" comment).
Grabowski and Voss met with Dr. Irani on February 28 or 29,
2012, to discuss the incident. Irani decl. ¶¶ 65-67
(referring to meeting on February 29 and setting out a
detailed description of his actions with respect to L.O., but
providing no detail as to the meeting); ECF No. 136-3 at 112
(March 5, 2012 memorandum referring to February 28 meeting);
Id. at 114 (Dr. Voss’s later, undated
memorandum indicating meeting occurred on Tuesday two weeks
earlier). In his post-meeting summary, Dr. Voss reported Dr.
Irani’s initial response to the nurse was somewhat
flippant, he delayed for an hour and a half before seeing the
patient, and he failed to demonstrate "any true insight
into the level of concern [expected] in the care of a
patient" at risk of paralysis. ECF No. 136-3 at 114. In
his affidavit and other written explanations, Dr. Irani
explained he asked the nurse to confirm there were signs of a
neurological deficit before he went to see the patient (to
rule out pain as the cause), was unable to immediately see
the patient once he did go (because she was in the bathroom),
and did not immediately document his findings (because
comments from Dr. Grabowski combined with earlier
instructions from Dr. Voss led him to believe he should not
do so). Irani decl. 65-67; ECF No. 136-3 at 116 (Dr.
Irani’s March 8, 2012 explanation earlier instruction
was from Dr. Voss and related to leg length discrepancies);
ECF No. 136-8 at 32 (explaining in submission to ACGME
previous instruction was to not document inaccurate
29, 2012 - Emails re Non-Renewal and Dismissal.
morning of February 29, 2012, Dr. Koon wrote Dr. Stephens
advising that the Department of Orthopaedic Surgery would
recommend Dr. Irani’s Resident Agreement not be renewed
for the following year. ECF No. 136-10 at 54. That evening,
Dr. Koon emailed Dr. Stephens, noting an additional failure
by Dr. Irani to follow instructions regarding wound care on
spine patient L.O. and that Dr. Irani "did not have a
good answer as to why this was left undone" when Drs.
Voss and Grabowski met with him. Dr. Koon asked whether
"this behavior rises to the level of ‘just
cause’ for dismissal." ECF No. 136-3 at 109.
1, 2012 - Care of Hemophiliac
morning of March 1, 2012, Dr. Koon emailed Drs. Stephens and
Walsh relaying a report from Dr. Wood that Dr. Irani failed
to evaluate a hemophiliac with possible compartment syndrome
at 4:00 a.m. as instructed. ECF No. 136-3 at 108 (also
reporting that Dr. Irani was late for rounds and had to be
called by Dr. Hoover that same morning). Dr. Koon opined that
Dr. Irani’s actions were "putting our orthopaedic
patients at risk." Id. He recommended they meet
with Dr. Irani and, absent a reasonable explanation, opined
they had "‘just cause’ to begin the
dismissal process." Id.
afternoon, Dr. Koon reported to Dr. Stephens that Dr. Walsh
had met with Dr. Irani, who admitted he had not seen the
hemophilia patient at 4:00 a.m. but stated he evaluated the
patient at 2:30 a.m., though he had not documented that
evaluation. ECF No. 136-10 at 59 (also stating the
department’s recommendation remained unchanged);
see also ECF No. 136-3 at 108 (Dr. Koon’s
subsequent email to Drs. Stephens and Walsh referring to
evening meeting with Drs. Irani and Hoover).
1, 2012 - Suspension.
Stephens emailed the GMEC Executive Committee shortly after
receiving Dr. Koon’s afternoon email. ECF No. 136-10 at
59-61 (forwarding emails regarding recent events). Dr.
Stephens stated immediate action was needed and suggested two
alternative courses: (1) dismissal; or (2) suspension without
pay pending a decision by the full GMEC. Id. The
Executive Committee elected to suspend Dr. Irani without pay
immediately and recommend dismissal to the full GMEC at its
April 10, 2012 meeting. See ECF No. 136-10 at 62
(Dr. Koon’s email), 65 (Dr. Stephens’ email).
This decision was communicated to Dr. Irani that same
evening. Irani decl. ¶ 68 (stating he was told
suspension and recommended termination related to his care of
the spine patient and hemophiliac).
5, 2012 - Level III Remediation.
March 5, 2012, Dr. Koon prepared and Dr. Stephens reviewed a
memorandum of record summarizing events leading to Dr.
Irani’s suspension. ECF No. 136-10 at 71, 73. Dr. Koon
forwarded this memorandum to Dr. Irani that same day, asking
Dr. Irani to provide his recollection of events surrounding
the care of both patients by the end of the week. ECF No.
136-3 at 111-13 (email and memorandum referring to Dr.
Irani’s February 28 or 29 meeting with Drs. Voss and
Grabowski and attaching Dr. Grabowski’s February 27
email regarding the spine patient and Dr. Wood’s
summary of events relating to the hemophiliac). The
memorandum recommends Level III remediation with immediate
suspension from clinical duties and states the events will be
investigated thoroughly and, absent reasonable explanation,
the faculty will recommend Dr. Irani’s dismissal at the
April 10, 2012 GMEC meeting. Id. at 112.
8, 2012 - Meetings and Explanation.
March 8, 2012, Dr. Irani provided his written explanation of
the two recent patient incidents to Dr. Koon. ECF No. 136-3
at 116-17 (emailed summary). Regarding the hemophiliac
patient, Dr. Irani stated he was asked to examine the patient
at "about four o’clock" on March 1, 2012, and
did check at roughly the halfway point between the last exam
and anticipated next (6:00 a.m.) exam. Id. He
described his 2:30 a.m. exam in detail, but did not explain
why he failed to check at 4:00 a.m. or why he failed to
document his 2:30 a.m. exam. Id.
the spine patient, Dr. Irani stated he received a call from a
nurse sometime after 11:30 a.m. on February 24, 2012, who
indicated the patient was having difficulty moving during
physical therapy. He asked the nurse to verify whether it was
a neurological deficit as opposed to compensation for pain.
The nurse called back twenty to thirty minutes later,
advising that the patient could not dorsiflex her foot. Dr.
Irani then went to see the patient, but she could not be
evaluated immediately as she was in the bathroom. At this
point, Dr. Irani reported the situation to Dr. Grabowski,
stating that he could not see the patient immediately because
she was on the toilet. After "several repeated
attempts[, ]" Dr. Irani was able to see the patient. Dr.
Irani detailed his finding of neurological defects, his
efforts to console the patient, and his report to Grabowski.
Dr. Irani reported that Dr. Grabowski’s initial
response was that Dr. Irani’s "exam was
incongruent with [his] observation of the patient walking
[and] there was likely an error in [his] exam." Because
of this response from Dr. Grabowski and prior instructions
not to document incongruent findings (given in regard to leg
length discrepancies), Dr. Irani did not document his
findings. Dr. Grabowski ultimately found neurological
deficits and scheduled the patient for further surgery. Dr.
Irani acknowledged that "[t]here was obviously very real
gravity to the case, and I did not ask any additional
questions . . . or say anything in addition to the
information I was required to communicate." Id.
13-20, 2012 - Grievance Steps.
Irani met with Dr. Koon on March 13, 2012, satisfying the
first step in the grievance process. ECF No. 136-3 at 119.
Dr. Koon upheld the suspension and recommendation of
Irani also sought additional input regarding the spine
patient from Dr. Grabowski who declined to provide additional
feedback. ECF No. 136-3 at 120 (March 13-20 email exchange).
He spoke with Dr. Walsh on March 14, 2012, apparently as his
second step in the grievance process. Irani decl. ¶ 71.
According to Dr. Irani, Dr. Walsh declared there was no way
the GMEC would go against the faculty and put pressure on Dr.
Irani to "leav[e] the program ‘with
dignity.’" Id. Dr. Irani next met with
Dr. Stephens, the third step in his grievance of the
suspension. She also upheld the suspension. Id.
¶¶ 72, 73; ECF No. 136-3 at 122-23 (March 28, 2012
letter upholding suspension and specifying deadline to
request a Grievance Committee hearing).
April 2, 2012, Dr. Irani exchanged emails with Palmetto
Health human resources representative Lin Hearne, regarding a
Grievance Committee hearing then scheduled for April 11,
2012. ECF No. 136-10 at 89, 90. He ultimately cancelled that
hearing, indicating he would reschedule it, if needed, after
the GMEC met on April 10, 2012. Id. at 89 (noting
Grievance Committee hearing would be unnecessary "if the
GMEC decides to reinstate me").
March 30, 2012, Dr. Irani sought documentation from Dr. Koon
regarding incidents leading to his suspension and
recommendation for dismissal. ECF No. 136-10 at 92 (seeking
memoranda of meetings, documentation from Drs. Wood and
Grabowski about two recent patient incidents, and
documentation of nurses’ complaints about TF375). On
April 3 and 6, 2012, Dr. Koon provided the requested
memoranda, summaries of recent incidents prepared by Drs.
Wood and Grabowski, and emailed reports by nurses relating to
TF375. ECF No. 136-10 at 92-106 (emailed responses with
9, 2012 - Complaint to ACGME.
April 9, 2012, Dr. Irani emailed the ACGME attaching a
"signed formal complaint regarding the practices of the
Palmetto Health Orthopaedics Department." ECF No. 136-8
at 13. The attached documents apparently included a two-page
document addressed "[t]o whom it may concern"
complaining of "unethical behavior and harassment I have
been subjected to from both my program director and the
chairman of my department." Id. at 15-16 (also
referring to unwillingness of "local committees" to
"listen to my grievances"). Sixteen of the eighteen
paragraphs in this letter deal exclusively with Dr.
Irani’s circumstances. The remaining two paragraphs
refer to the program having "an unusually high attrition
rate" and use of residents "to solve service
needs[.]" Id. at 15-16.
10-11, 2012 - GMEC Dismissal Decision and Grievance.
April 10, 2012, the full GMEC met and voted to dismiss Dr.
Irani immediately. See ECF No. 136-3 at 132; ECF No.
141-13 (minutes). Dr. Koon informed Dr. Irani of the decision
and provided the deadline for filing a grievance, April 11,
2012. Id. Dr. Irani timely requested a Grievance
Committee hearing. ECF No. 136-10 at 108 (April 11, 2012
email to Hearne).
13, 2012 - Supplemental materials to ACGME.
April 13, 2102, Dr. Irani provided supplemental documents to
the ACGME adding complaints of duty hour violations and
inadequate supervision. ECF No. 136-8 at 12-13. In this
email, Dr. Irani referred to the fall-inline culture of the
program and stated "[a]fter last year’s resident
survey revealed some resident dissatisfaction, the residents
commented on how it became a witch hunt . . . to see who had
written disparaging comments about the program. Those that
don’t fall inline (like myself), it seems, are profiled
and unfairly targeted." Id. at 13.
27, 2012 - ACGME Letter to Drs. Stephens and Koon.
April 27, 2012, the ACGME notified Drs. Stephens and Koon of
Dr. Irani’s complaints including racial harassment,
disparate treatment, inadequate due process, lack of
supervision, and duty hour violations. ECF No. 136-8 at 1-11
(summarizing Dr. Irani’s complaints, listing
corresponding ACGME requirements, and attaching Dr.
Irani’s emails). The Residency Program was given until
May 28, 2012, to respond. Id. at 7.
30, 2012 - Grievance Committee Hearing.
Grievance Committee hearing was conducted on April 30, 2012.
ECF No. 150-1 at 1-143 (transcript). At the outset, the
moderator, Gwen Hill (Palmetto Health’s interim vice
president of human resources), introduced the five committee
members: two residents from general psychiatry and surgery
and three faculty members from OB/GYN, internal medicine, and
emergency medicine. Id. at 2. Hill
explained that management would speak first and have up to an
hour; the committee could then ask questions, followed by any
questions Dr. Irani wanted to pose. Id. at 3. Dr.
Irani would then have the same amount of time, followed by
committee questions and questions from management. After
that, each side would have five minutes for a concluding
transcript reveals that this procedure was followed with Drs.
Koon and Walsh presenting first, and apparently taking most
of their allotted time. Id. at 4-44; id. at
31 (Hill advising management they had 20 minutes left). The
committee then posed a few questions to Drs. Koon and Walsh.
Id. at 44-46. Dr. Irani was offered but declined an
opportunity to question Drs. Walsh and Koon. Id. at
46. Dr. Irani presented his case without reaching his time
limit. Id. at 46-76. The committee then posed a
number of questions to Dr. Irani, each of which he was
allowed to fully answer. Id. at 76-85. Drs. Walsh
and Koon were then offered and accepted the opportunity to
pose questions of their own to Dr. Irani. Id. at
85-113. Both sides made very short closing statements.
Id. at 113-15 (Dr. Walsh); id at 115-16
comments or inquiries from committee members and Hill during
Drs. Walsh and Koon’s questioning of Dr. Irani were
apparently intended to limit certain lines of questioning as
peripheral. E.g., id. at 95 (question
during brief inquiry about ACGME complaint); id. at
108 (same during later inquiry). There were no comments or
inquiries that limited Dr. Irani’s presentation in any
Irani’s presentation addressed specific incidents from
the various remediation memoranda as well as more general
concerns with his treatment. The latter included a statement
that he was "extremely concerned by the unethical
behavior and harassment" he had been "subject[ed]
to at the hands of [his] program director and the chairman of
my department." Id. at 47. He specifically
referred to Dr. Koon’s statement that the medicine
program would be happy just to have residents who spoke
English as well as his reference to Dr. Irani as "Achmed
the Terrorist." Id. at 48 (indicating the
"sp[eak] English" comment was made in connection
with the first remediation meeting in August 2011);
id. at 51 (stating Dr. Koon "continued to
escalate [by making] derogatory . . . comments, saying I was
a terrorist, going so far as to label me ‘Achmed the
Terrorist’"); id. at 58 (stating, in
addressing discussion of narcotics dosing allegations during
a faculty meeting, he felt intimidated by Dr. Koon
"calling me a terrorist and threaten[ing] me with
discipline for minor infractions but for which he gave a pass
to other residents"); id. at 70-72 (admitting
he had made mistakes but alleging he was "illegally
targeted" and "vilified" for actions for which
his colleagues were not penalized; that, while "on
remediation, Dr. Koon regularly taunted me, calling me Achmed
the Terrorist[, ]" and asserting he was subjected to
"derogatory, inappropriate, and insensitive racial
taunting by those entrusted with my education");
id. at 74 (referring to "racially-based
harassment" including referring to him as "Achmed
the Terrorist" and "constant insinuations about my
Irani also referred to inadequate specificity in the August
15, 2011 remediation plan. Id. at 48. He noted he
received contrary reports (positive views of his work) when
he sought clarification from his fellow residents.
Id. at 48-49.
Irani stated it was "no secret we often violated duty
hours" in making sure the work was done. Id. at
49. Without discussing the source of the complaint, he stated
the Program was under investigation by the ACGME because of
duty hour violations and lack of resident supervision.
Id.; see also Id. at 75 (stating it was
"noteworthy that this program is currently being
investigated by the ACGME for work hour violations and lack
of resident supervision").
his comments, Dr. Irani made several requests that the
Grievance Committee look beyond the presentations made during
the meeting. Id. at 76 (imploring the Committee to
"investigate this pattern of targeted unfair
behavior"); id. at 85 (inviting the Committee
to "poll the ER [and floor] nurses, and I’ll stand
by whatever they say" about his care for his patients,
making the same invitation as to the spine patient);
id. at 112 (responding to a question from Dr. Koon
about allegations of disparate treatment by noting the trauma
case managers told Dr. Irani he was doing a good job, in
contrast to Dr. Koon’s reports, and suggesting the
Committee should speak directly to the individuals involved
to get a "neutral third opinion"); id. at
116 (stating in closing "[a]nything here you have
questions about, I’m more than happy to substantiate .
. . . You’re more than welcome to poll the trauma case
managers, poll any of the nurses and get their opinions of
what they think about me. I’ll stand by that.");
see also Irani decl. ¶ 73 (stating he hoped
"the grievance council would review charts, and
objective evidence to determine which side was
Dr. Irani concluded his presentation, one Committee member
asked what Dr. Irani believed "ultimately led us to this
day." Id. at 82. In response, Dr. Irani
conceded that "when I first came here, it was a rocky
start, and I was new to the area." Id. He
explained that he received better evaluations later in his
first year, but the orthopaedics department (the locus of his
second year), "was a different environment. I think Dr.
Koon became frustrated because I kept asking questions. I
wanted more, and perhaps I do lack insight, but I was never
given the opportunity to gain that." Id. at 82,
83. Dr. Irani then referred to Dr. Koon’s
"personal vendetta" to fire him after Dr. Irani
sent "that email." Id. at 84 (referring to
the November 3, 2011 email regarding the discharge summary);
see also Id. at 83 (noting there was a "very
marked change in the tone, and it became very personal"
after that point).
Walsh and Koon’s questions were generally directed to
specific incidents. Id. at 87-88 (asking about the
Mr. B and TF375 incidents); id. 88-89 (asking about
six incidents discussed during the meeting and whether Dr.
Irani’s position was he was right and others were wrong
as to all of them, to which Dr. Irani responded it
wasn’t an all wrong-or-right scenario as there was
always room for improvement); id. at 89-91 (asking
about advice to patient regarding pain medication, to which
Dr. Irani responded that he asked another resident to follow
up the next day because he realized there may have been a
miscommunication with the patient); id. at 94-98
(asking about hemophiliac and spine patients, to which Dr.
Irani responded he (1) was counseled about the spine patient
one day before the incident with the hemophiliac, (2) delayed
documenting both examinations for at least two days, and (3)
was late to rounds on March 1, 2012).
Submissions to Grievance Committee.
the April 30, 2012 hearing, "the [G]rievance [C]ommittee
indicated that Dr. Irani had discussed the support of several
physicians, including Dr. Guy" and requested
"additional information - including statements from Voss
and Guy." Hill aff. ¶ 6 (ECF No. 168-8). This
information was sought from the faculty and Dr. Irani was
also invited to provide additional information. Id.
faculty submitted letters or statements from Drs. Guy and
Voss, and possibly a statement from Drs. Walsh and Koon
(discussed below). Dr. Guy’s letter was very positive
as to multiple aspects of Dr. Irani’s abilities but
stated Dr. Guy did not believe Dr. Irani would excel in any
manner in clinical medicine and did not believe he belonged
in an orthopaedic residency program. ECF No. 139-3 at 51-53
(letter dated May 2, 2012). Dr. Guy explained that these
views were based on information obtained from Dr. Irani
himself and impressions from other faculty as he had not
personally witnessed Dr. Irani’s clinical work.
Voss’s "Summative Statement" characterizes
Dr. Irani as "often very friendly" in his
interactions with patients, but falling "far short of
what was expected" when care became "onerous or
difficult." ECF No. 155-5 at 1. Dr. Voss briefly
described four incidents in which Dr. Irani (1) discharged
one patient without enough pain medication; (2) encouraged
another to take too much pain medication; (3) failed to check
on a patient (apparently referring to the hemophiliac); and
(4) failed to premedicate a patient before manipulating the
arm (apparently referring to Mr. B). Dr. Voss concluded that
Dr. Irani "did not really care for the patient."
Koon also drafted a letter to the Grievance Committee. ECF
No. 139-4 at 23-26. This letter is largely repetitive of
information provided during the April 30, 2012 hearing and
refers to (1) a failure to do follow up wound care on Dr.
Grabowski’s spine patient (after February 27, 2012);
(2) an inadequate history and physical on a joint patient on
February 27, 2012; and (3) an inappropriate joke about how to
handle a wrong-site surgery (just charge extra). The court
assumes for purposes of this order that this letter was
provided to the Grievance Committee.
Irani provided a statement titled "Clarification of a
few points raised by Dr. Koon in his opening statement."
ECF No. 168-8 at 4-5. Dr. Irani noted there were
"several discrepancies in [Dr. Koon’s] opening
statement[, ]" though "[m]ost are completely
explained in my accompanying writeup." Id. at
4. Dr. Irani addressed three specific issues: preparation of
the morning list, the decision to amputate Mr. B’s arm,
and the faculty’s delay in seeking Dr. Irani’s
explanation as to TF375. Id. He also incorporated
the body of an email from a fellow resident who described Dr.
Koon’s reaction to Dr. Irani’s delay in dictating
the discharge summary that led to the November 3 email
exchange as "a witch hunt." Id. at 5. Dr.
Irani also provided a letter from his attorney, which Hearne
explained would not be forwarded and Dr. Irani agreed
"might not be appropriate in this setting." ECF No.
168-9 at 2. He also appears to have submitted an
"explanation of exhibits, " though it does not
appear this document was forwarded to the committee.
Id. at 1-2 (Dr. Irani email characterizing this
explanation as "largely lifted from my talk that
references and explains all the supplemental documentation
and exhibits that the [G]rievance [Committee] was given"
and Hearne’s response indicating only the email from
Dr. Irani’s fellow resident and clarification of Dr.
Koon’s statement were "approved to move forward to
2012 - ACGME Supplement. On May 4, 2012, the ACGME sent Drs.
Stephens and Koon a "revised, more complete
document" Dr. Irani had submitted in support of his
complaint. ECF No. 136-8 at 14 -100.
2012 - Grievance Committee Decision. On May 7, 2012, the
Grievance Committee reconvened, considered the additional
evidence, and voted by secret ballot, upholding Dr.
Irani’s termination. ECF No. 139-3 at 44 (notification
2012 - Response to ACGME Complaint. On May 28, 2012, Palmetto
Health responded to Dr. Irani’s complaint to the ACGME.
ECF No. 136-8 at 102-05 (attaching multiple documents).
2012 - Denial of final step in grievance process. Dr. Irani
pursued his grievance through the final step, review by
Palmetto Health’s chief executive officer, Charles D.
Beaman, Jr. Mr. Beaman wrote Dr. Irani on June 1, 2012,
stating he had determined the termination was proper and was
upholding the decision of the Grievance Committee. ECF No.
139-3 at 45.
2, 2012 - ACGME Decision. On August 2, 2012, the ACGME
advised Palmetto Health that it found "no validity to
[Dr. Irani’s] complaint and will not pursue any further
action related to the complaint." ECF No. 136-8 at 118,
12, 2012 - Summative Evaluation. On August 12, 2012, Dr. Koon
completed a "Summative Resident/Fellow Evaluation Form
(Non-Graduate)" in which he gave Dr. Irani
"Poor" ratings (the lowest of four options) in
three areas: patient care and management, interpersonal and
communication skills; and overall performance. He ranked Dr.
Irani "Fair" (third of four options) in
practice-based learning and improvement and "Good"
(the second option) in three areas: basic medical knowledge,
professionalism, and systems-based practice. ECF No. 157-2 at
2013 - Submissions to California Medical Board.
May 2013 Dr. Irani emailed Dr. Koon asking him to complete a
two-page form needed to support Dr. Irani’s application
for a license to practice medicine in California. ECF No.
136-3 at 136. Because he was aware of communications from Dr.
Irani’s attorney to representatives of Palmetto Health
in May and August of 2012, warning of potential liability for
any impairment of Dr. Irani’s educational and
professional prospects, ECF No. 136-3 at 133-35, Dr. Koon
sought legal counsel before responding. Koon aff.
¶¶ 40-45. The response Dr. Koon ultimately provided
was found deficient by the California Medical Board because
of lack of detail, prompting Dr. Irani to write Dr. Koon
asking him to complete the form again. Koon aff. ¶ 46;
ECF No. 136-3 at 142-45. Dr.
provided a more complete response after again consulting
counsel. Koon aff. ¶ 46; ECF No. 136-3 at 146-48. Dr.
Koon’s cover letter, explaining affirmative responses
to questions as required by the form, stated as follows:
Dr. Irani underwent GMEC-directed academic remediation during
his PGY-2 year. He failed to complete the GMEC-directed
remediation measures and was terminated from his position on
10 APR 11 (questions 3, 6, 8). He was not offered a renewal
of his contract for the following year (question 9). Dr.
Irani satisfactorily completed one month of his PGY-2
training from 01 JUL 11 - 10 APR 11 (question 1). During his
PGY-2 year he was placed on Palmetto Health Level III
academic remediation which included a leave of absence from
his clinical duties (question 2).
ECF No. 136-3 at 146 (letter dated June 13, 2013).
Koon also prepared a memorandum dated June 26, 2013, which he
understood would be forwarded to the California Medical
Board. Koon dep. at 246; ECF No. 157-3 at 2 (Memorandum of
Record). This memorandum summarizes Dr. Irani’s history
of remediations and includes the following statement:
During his first month on [his second] Level II Remediation,
Dr. Irani was involved in two patient encounters that the
faculty deemed below acceptable standards. Dr. Irani had
failed to demonstrate immediate and sustained improvement as
required by his remediation measures. He had failed in the
competencies of patient care, interpersonal skills and
communication, and professionalism.
It was the recommendation of the orthopaedic faculty to place
Dr. Irani immediately on Level III academic remediation
(effective 01 MAR 12) and suspend him from clinical duties.
We investigated these encounters thoroughly. No reasonable
explanation could be identified for his actions, and the
faculty recommended to the [GMEC] on 10 APR 12 that Dr. Irani
be dismissed from the program. This decision was confirmed by
the GMEC, the DIO, the Grievance Committee, and the Palmetto
Health Chief Executive Officer during the appeals process.
ECF No. 157-3 at 2.
their three separate motions for summary judgment, Defendants
collectively seek dismissal of all causes of action. The
court addresses the various arguments in the order in which