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Khalil v. Memorial Hermann Health System

United States District Court, S.D. Texas, Houston Division

October 30, 2017

SAMIA KHALIL, M.D., Plaintiff,


          Lee H. Rosenthal Chief United States District Judge.

         Dr. Samia Khalil sued UTH McGovern Medical School and Memorial Hermann Medical System in Texas state court, alleging age discrimination and retaliation under the Texas Commission on Human Rights Act, Tex. Labor Code § 21.010, et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., and Title VII, 42 U.S.C. § 2000e, et seq. The defendants timely removed to federal court. The petition named UTH McGovern Medical School and Memorial Hermann as defendants, but Dr. Khalil dismissed her claims against UTH, without prejudice. (Docket Entry No. 17). Memorial Hermann moved to dismiss under the Texas Citizens Participation Act, Tex. Civ. Prac. & Rem. Code § 27.001, et seq., for judgment on the pleadings under Rule 12(c), and for a more definite statement under Rule 12(e). (Docket Entries No. 15, 16). Dr. Khalil responded to both motions, and Memorial Hermann replied. (Docket Entries No. 21, 22, 24, 25).

         Dr. Khalil's response to Memorial Hermann's motion under the Texas Citizens Participation Act included several exhibits and a supplement. The court held a hearing on October 16, 2017, at which the parties argued the motions. At that hearing, Dr. Khalil's counsel represented that she is no longer pursuing the claims for retaliation or under Title VII, and the court dismissed those claims, without prejudice. (Docket Entry No. 27). The court converted Memorial Hermann's Rule 12(c) motion for judgment on the pleadings to a motion for summary judgment, see Fed. R. Civ. P. 12(d), and allowed the parties to supplement their motions and responses. (Id.). Memorial Hermann has moved for clarification, or, in the alternative, reconsideration of the ruling. (Docket Entry No. 29).

         Based on the parties' submissions, arguments, and the applicable law, Memorial Hermann's motion to dismiss under the Texas Citizens Participation Act is granted as to Dr. Khalil's state-law discrimination claims. Those claims are dismissed, with prejudice, because the Texas Citizens Participation Act and the Texas medical peer-review immunity statute, Tex. Occ. Code § 160.010, bar them, and because Dr. Khalil received her right-to-sue letter from the Texas Workforce Commission on December 30, 2016, but did not file this suit until May 5, 2017, after the 60-day limitations period under § 21.254 of the Texas Labor Code had expired. The motion to dismiss Dr. Khalil's federal discrimination claims under the Texas Citizens Participation Act is denied because in its motion for reconsideration, Memorial Hermann indicates that it seeks dismissal only of Dr. Khalil's state-law discrimination claims. (Docket Entry No. 29, at p. 12). Memorial Hermann's supplemented motion for summary judgment should address only the remaining federal discrimination claims. The motion for reconsideration, (Docket Entry No. 29), is denied as moot.

         The reasons for these rulings are explained below.

         I. Background

         The background facts are based on Dr. Khalil's state-court petition in this lawsuit and the exhibits attached to the parties' submissions. This is Dr. Khalil's second lawsuit based on her work at Memorial Hermann. In the earlier suit, Dr. Khalil asserted state-law claims for several business torts. See Memorial Hermann Health Sys. v. Khalil, 2017 WL 3389645 (Tex. App.-Houston [1st Dist] Aug. 8, 2017). The facts of the case are also set out in detail in the Texas Court of Appeals decision rejecting Dr. Khalil's claims. Id. at * 1-3.

         Dr. Khalil was a clinical professor of pediatric anesthesiology at UTH and worked at Memorial Hermann as a pediatric anesthesiologist. In December 2014, Dr. Carin Hagberg, the chair of the Anesthesiology Department at UTH, told Dr. Khalil that the hospital administration had received "vague complaints" about Dr. Khalil and that the hospital had asked Dr. Hagberg to implement a corrective-action plan for Dr. Khalil. (Docket Entry No. 1, Ex. 5 at ¶ 8). Dr. Khalil met with a corrective-action plan advisor several times. In June 2015, she received a report that she had not adequately complied with the "patient safety checklist" component of the plan. Instead, she had a "lack of team attitude or just a simple disagreement with regards to accountability on certain aspects of the checklist." (Id. at¶ 10).

         On August 3, 2015, Dr. Hagberg put Dr. Khalil on administrative leave based on "patient safety issues." These issues arose from a peer review of her work, including her anesthesiology charts. Dr. Khalil alleges that this administrative leave was the equivalent of suspending her from clinical duties at UTH. She also alleges that the 2015 peer review was different from her previous peer reviews in two ways: she was not allowed to review or refute the responses; and it was based on a larger sample of anesthesia charts. Dr. Khalil alleges that the UTH suspension "had the practical effect of preventing her from performing her clinical duties at Memorial Hermann." (Id. at¶ 15).

         On August 14, 2015, Dr. Hagberg told Dr. Khalil that she needed to attend the "PACE" or "KSTAR" program to assess her ability to practice with skill and safety. In a letter to the chair of the Memorial Hermann credentials committee dated November 30, 2015, Dr. Khalil stated, "[a]s for compliance with the EAP recommendations for an outside assessment by PACE, I am unwilling to participate in a process that is flawed by design and intrinsically unfair." (Docket Entry No. 15, Ex. B at p. 1083). In her petition, however, Dr. Khalil alleges that she applied to the PACE program and "was in line to go" on January 4, 2016. (Docket Entry No. 1, Ex. 5 at ¶ 22).

         Dr. Khalil independently contacted Dr. Charles Cote, an anesthesiologist at Harvard Medical School, to review her anesthesiology charts. His report to her stated that, "[a]s far as I can tell there are no medical legal issues regarding harm to the patients, rather the critiques are management style rather than substantive errors in judgment." (Id. at ¶ 18). Dr. Khalil presented Dr. Cote's report to UTH, but, according to her petition, UTH did not consider it because it was "outside their normal process." (Id. at¶19).

         In August 2015, Dr. Khalil filed a grievance with UTH under its established grievance process. UTH denied the grievance on September 14, 2015; Dr. Khalil appealed the denial in September. In November, the grievance committee denied Dr. KhaliPs appeal and Dr. Hagberg informed her that she no longer had clinical research privileges. Later that month, Dr. Khalil received a letter confirming that her appeal was denied. She made a "final appeal" to the president of the UTH Science Center. The president denied that appeal in December 2015.

         In a letter dated November 19, 2015, the chair of the Memorial Hermann credentials committee advised Dr. Khalil that her application for reappointment to the Memorial Hermann staff had been tabled because: (1) Dr. Khalil had not completed the PACE program; (2) the credentialing committee was concerned about clinical patient safety based on Dr. Khalil's anesthesiology charts; (3) the committee needed additional information from the Anesthesiology Department; and (4) Dr. Khalil was "not actively practicing clinical anesthesia with patients." (Id. at ¶ 22). On November 30, 2015, Dr. Khalil responded that "it borders on absurd to suggest that as a basis for my appointment being incomplete when it was UT, at the urging of Memorial Hermann Hospital that suspended my clinical duties on August 3, 2015 with no notice and no hearing or due process." (Id.)

         In December, Memorial Hermann's chief of staff, on behalf of the medical executive committee, wrote Dr. Khalil a letter about the re-credentialing process. The subject line states "Final Peer Review Ratings." The letter identified two cases in which Dr. Khalil failed to meet the standard of care. (Docket Entry No. 15, Ex. B at pp. 1086). The letter stated that the committee "accepted and agreed with" the findings and recommendations of the credentials committee and the medical staff pediatric quality review committee that "aggregated information in [Dr. Khalil's] overall credentials file, to date, is disturbing and has led to the finding that your clinical practice represents the potential of imminent patient harm." (Id.). The letter listed several findings, including that Dr. Khalil failed to read patient records, communicate with surgeons, demonstrate insight or basic knowledge, recognize serious symptoms, or acknowledge incorrect dosing. (Id.). The letter concluded that "[n]o action has been taken on your incomplete application for reappointment. Your current appointment will expire on January 31, 2016. If the application is completed and progresses through the committee structure, regrettably, I doubt the recommendation will be favorable." (Id. at p. 1087).

         Dr. Khalil did not complete the corrective-action plan. Her credentials with Memorial Hermann expired on January 31, 2016. On February 2, Memorial Hermann's chief of staff wrote Dr. Khalil a letter confirming that her credentials had expired because "[i]ncomplete applications cannot be considered for appointment, " but if she is "able to address and meet the previously communicated deficiencies, [she] may submit an application for appointment and clinical privileges that will be considered and processed as an initial application." (Id. at p. 1116). Dr. Khalil does not allege that she ever submitted a completed renewal application.

         On June 6, 2016, Dr. Khalil filed a charge with the Equal Employment Opportunity Commission, alleging that UTH had discriminated against her based on her age. On June 8, 2016, Dr. Hagberg informed Dr. Khalil that she would not be reappointed to the UTH faculty for the 2016-2017 term, and that for the remaining period of her employment, Dr. Khalil would receive special assignments from Dr. Hagberg. Dr. Hagberg instructed Dr. Khalil to turn in her keys and access badge. Dr. Khalil alleged that UTH terminated her on August 31, 2016, and that after she was suspended from clinical duties, UTH hired two younger pediatric anesthesiologists. In her affidavit, Dr. Khalil stated that Memorial Hermann also replaced her with younger pediatric anesthesiologists: "Since my suspension and eventual effective termination by Memorial Hermann, the hospital has acquired at least [four] pediatric anesthesiologists under the age of 40 to replace me ...." (Docket Entry No. 22, Ex. A).

         Dr. Khalil alleged that: (1) UTH and Memorial Hermann intentionally delayed implementing the corrective-action plan; (2) UTH, "at the apparent urging of and in concert with Memorial Hermann, " waited nearly nine months to complete its review of Dr. Khalil's progress and review her anesthesia charts; (3) Memorial Hermann delayed submitting her re-credentialing packet for a month and a half; (4) Memorial Hermann "accepted UTH's conditions and reasoning to remove Dr. Khalil without taking into consideration Dr. Khalil was entitled to rights under the By Laws she did not get the opportunity to exercise"; and (5) Memorial Hermann "refused to offer Dr. Khalil any alternative guidelines to apply for renewal of her privileges; instead, they discouraged her from applying stating the likelihood of her being considered was very diminutive." (Docket Entry No. 1, Ex. 5 at ¶¶ 21, 33).

         In the earlier state-court lawsuit, Dr. Khalil sued Memorial Hermann for defamation, fraud, tortuous interference with an existing contract, intentional infliction of emotional distress, "assisting and encouraging, " conspiracy, and age discrimination, and also challenged the Texas Citizens Participation Act under the Texas Constitution's open courts provision, Tex. Const, art. 1, § 13. Memorial Hermann moved to dismiss several of those claims under the Texas Citizens Participation Act, but because the trial court did not rule on Memorial Hermann's motion to dismiss within 30 days, the motion was denied by operation of law under the Texas Citizens Participation Act. The Texas Court of Appeals reversed the ...

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