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Ndulue v. Fremont-Rideout Health Group

United States District Court, E.D. California

June 12, 2017



         Plaintiff Dr. Ndulue sued the hospital where he works for allegedly retaliating against him and diverting patients to other doctors. Defendant hospital, the Fremont-Rideout Health Group, now moves for summary judgment. Mot., ECF No. 41. Plaintiff opposes. Opp'n, ECF No. 46. The court heard the motion on March 10, 2017. Anthony Madu and Darin Dominguez appeared for plaintiff; Preston Young and Glenn Holley appeared for defendant. Hr'g Mins., ECF No. 61. As discussed below, the court GRANTS defendant's motion.


         A. The Parties

         Plaintiff, a Nigerian pediatrician, immigrated to the United States twenty years ago and now operates a solo practice in California. Pl.'s Dep. vol. 1, 20:2-3, 21:24-25, 24:15-17, 36:1-6, Zim Decl., Ex. B, ECF No. 44-1. As a hospital staff member, plaintiff admits patients to defendant's facilities. Id. 24:18-25.

         B. 2011 Settlement Agreement

         This case is not the parties' first rendezvous. Plaintiff sued defendant in 2008 for racial discrimination and conspiracy to interfere with his business. 2008 Compl., Ndulue v. Fremont-Rideout Health, Case No. 2:08-cv-001696-WBS-KJM, [2] Zim Decl., Ex. C. The parties settled during trial before the jury returned a verdict. Civil Jury Trial Mins, April 28, 2011, Ex. F, ECF No. 44-1. As relevant here, defendant agreed to amend its “newborn patient allocation policy” to reflect that the hospital staff would “make reasonable efforts” to discern which pediatrician a laboring mother prefers and obtain that preference in writing. 2011 Settlement Agreement ¶ F, Ex. G, Zim. Decl.

         After settlement, defendant changed the pediatrician allocation form as agreed. See Krista Minton Dep. 23:12-16, Zim Decl., Ex. X; see also Pediatrician Request Form, Minton Decl., Ex. 8, attached to Minton Dep. Defendant now gives a laboring mother a list of pediatricians to select from when she arrives at the hospital, and nurses neither endorse nor oppose any options. Minton Dep. 26, 33-34.

         C. Hospital's Alleged Diversion of Plaintiff's Patients

         Plaintiff claims defendant is violating the parties' 2011 settlement agreement and is again diverting his newborn patients to other pediatricians. Compl. ¶¶ 22-24, 27, ECF No. 1. The hospital's administrative records show no decline in the newborns the hospital assigned plaintiff during the years about which he complains, 2010 through 2015. See Patient Allocation Table, Christy Rhoades Decl., Ex. U to Zim Decl. The hospital's billing records show the number of patients plaintiff billed during these years was higher than any previous five-year interval in which he worked at this hospital. See Billing Record, Zim Decl., Ex. T. Plaintiff's own Schedule C forms showing the reported income on his 2010 through 2015 tax returns reveal his annual receipts and medical account deposits are virtually identical from 2010 through 2014, with an upward spike in 2015. See Schedule C, Zim Decl., Ex. V; see also Julie Shea[3] Dep. 23:2- 24:8, Zim Decl., Ex. W (authenticating this document).

         D. Plaintiff's Letters

         Besides the alleged newborn patient diversion, this suit also involves plaintiff's one-week suspension, which he claims amounted to unlawful retaliation. Defendant suspended plaintiff's hospital privileges temporarily after he wrote two letters criticizing the hospital's patient care standards.

         1. Plaintiff's First Letter

         Plaintiff directed his first “patient care concern” letter to his colleague, Dr. Shahzad Naseem, and sent copies to hospital leadership. Pl.'s 1st Letter (dated June 6, 2012), Zim Decl., Ex. H; Pl.'s Dep. vol. 1, 171:13-14. This letter accused Dr. Naseem of “getting away with serial homicides, ” “supervis[ing] the death of yet another baby, ” conducting “murder and mayhem, ” having medical skills equivalent to the cleaning and security staff, and turning “the Pediatrics department into a lawless tribal region attempting to behead anyone who does not belong to [his] conspiracy of morons.” Pl.'s 1st Letter; see also Pl.'s Dep. vol. 1, 170:8-20 (authenticating the letter).

         Offended by the personal attacks, Dr. Naseem sent the letter to the hospital's Professional Review Committee (“Committee”), which reviews the staff's behavior and professionalism. See Brar Dep. 28:18-22, 68:10-17, Zim Decl., Ex. J. When the Committee receives behavioral complaints, it “rates” the alleged misconduct and then responds proportionately. Code of Conduct, Zim Decl., Ex. I; Brar Dep. 59:1-18, 60:1-22. The Committee here responded with two separate letters to plaintiff: The first addressed plaintiff's patient care concerns; the second, sent weeks later, addressed the language plaintiff used in his letter. See Committee's 1st Letter (dated July 3, 2012), Zim Decl., Ex. K; Committee's 2nd Letter (dated July 23, 2012), Zim. Decl., Ex. I. The Committee's second letter declared plaintiff's language inappropriate and contrary to the hospital's Code of Conduct and rated plaintiff's misconduct as a level two out of three, meaning it was serious but not yet worthy of adverse action. The Committee also told plaintiff how to properly report future care concerns to the chief medical officer. Committee's 2nd Letter; Brar Dep. 59:13-22.

         2. Plaintiff's Second Letter

         Plaintiff responded to the Committee's action with another scathing letter of his own, which he again characterizes as a “patient care concern” letter. Pl.'s 2nd Letter (dated Aug. 22, 2012), Zim Decl., Ex. L. This letter describes one hospital physician as “semi-literate with an infantile personality, ” accuses others of being morons, indicts the medical staff as “laughable and rigged, ” brands the Pediatrics Department a “lawless tribal region, ” and insists allegations against him were “based on well-rehearsed lies and planted stories designed by a group of conspirators.” See Id. at 1-4; see also Pl.'s Dep. vol. 2, 227:6-21, Zim Decl., Ex. M. Plaintiff also compares “dead and maimed babies” in certain hospital wards to serial homicides, recounting his exhaustion over “seeing broken babies walking through [his] office[, ] [a]ll courtesy of our wonderful pediatricians”; he decries an incident where a baby in “shock” was allegedly preselected as a ruse while everyone “rehearsed for their parts in this charade” to get plaintiff bellowing. Pl.'s 2nd Letter at 3. Plaintiff acknowledges he knows where to send formal care complaints, yet he sent this letter to Committee member Dr. Brar, and not the chief medical officer. See Id. at 4.

         3. Plaintiff's Suspension

         After reviewing plaintiff's second letter, the Committee recommended that the Medical Executive Committee (“MEC”)[4] suspend plaintiff from the hospital for seven days. The MEC accepted this recommendation, citing “the destructive nature of [plaintiff's] letters, their outrageous language, [plaintiff's] past history of sending such letters about colleagues and staff, and [plaintiff's] behavioral history.” See Susp. Letter, Zim Decl., Ex. N; Brar Dep. 10:12-11:5; Plass Dep. 72:5-17, 73:18-74:3, Zim Decl., Ex. O; Brouette Dep. 56:3-21, 57:13-23, Zim Decl, Ex. P. The MEC's suspension letter reminded plaintiff that, as a member of the hospital's medical staff, he had agreed to understand the Code of Conduct and to abide by it. Susp. Letter; Pl.'s Dep. vol. 2, 221:4-14 (affirming his obligation to abide by the Code and his understanding of it). “Criticisms leveled at the recipient in such a way that it intimidates, threatens, undermines confidence, belittles, or implies stupidity or incompetence” violate the Code. Code § II.E.3. Under oath, plaintiff admitted he intended to criticize another staff member and convey that person's incompetence in his first letter. Pl.'s Dep. vol. 2, 219:12-25, 220:1-2.

         The Committee invited plaintiff to meet with its members to discuss his behavior, and plaintiff did attend a meeting as offered. See Zim Decl., Ex. Q; Brouette Dep. 111:24- 112:13; Pl.'s Dep. vol. 2, 294:12-295:4 (affirming the existence and substance of the meeting). Plaintiff then chose to serve his suspension in May 2013. Pl.'s Dep. vol. 2, 315:15-21.

         E. Plaintiff's Claims

         In his complaint filed on March 20, 2014, plaintiff brings eight claims against defendant based on his suspension and the allegedly ongoing newborn patient diversion. His claims are:

(1) Retaliation for Whistleblowing under 42 U.S.C. § 1395(d)(d);
(2) Relief from Retaliatory Actions under 31 U.S.C. § 3730(h);
(3) Retaliation under Cal. Health & Safety Code § 1278.5;
(4) Negligent interference with prospective business;
(5) Intentional interference with prospective business;
(6) Interference with contractual relationships;
(7) Settlement agreement violations; and
(8) California's unfair competition law ...

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