By: Maria Greco Danaher, Ogletree Deakins (Pittsburgh)
A physician who sued a hospital, its medical staff, board of trustees, and CEO after his application for staff privileges was denied was unable to show that a hospital’s true reasons for the denial was race discrimination. Talwar v. Mercer County Joint Twp. Community Hosp., N.D. Ohio, No. 3:06cv3092, 1/15/09. In that case, a federal district court in Ohio granted summary judgment to the defendants, who had been sued for racial/national origin discrimination under 42 USC §§ 1981 and 1983 by an Asian-American surgeon after that physician was denied privileges to practice general surgery at the hospital.
Before a doctor can care for patients at a hospital, the hospital typically must grant “staff privileges” to that doctor. In December 2004, Dr. Raman Talwar submitted an application for staff privileges to practice surgery at Mercer County Joint Township Community Hospital (Mercer) in Ohio. He was granted temporary privileges on January 13, 2005.
In July 2005, Mercer’s Medical Staff Executive Committee (MEC) met to review Talwar’s status and application. Subsequently, after further investigation of that application by Mercer’s attorney (Ballard), the MEC voted to recommend that the hospital’s Board of Trustees deny Talwar’s application. The basis of the denial was Ballard’s assertion that she had uncovered certain misstatements and omissions in the application, including Talwar’s reporting a different number of malpractice settlements that those listed in the National Practitioner Data Bank, omitting mention of pending litigation, and inaccurately representing the scope of his privileges at another hospital. At a hearing on Talwar’s application in December 2005, Talwar challenged the accuracy of Ballard’s information and findings. Nevertheless, at the conclusion of the hearing, the hearing officer recommended that the MEC uphold its denial of privileges with respect to Talwar.
Talwar ultimately filed a lawsuit in federal court, alleging civil rights violations under 42 U.S.C. §§1981 and 1983. His Section 1981 claim was dismissed on the basis that such a claim requires a “contract.” Although Talwar argued that the hospital’s bylaws created a contract, the court disagreed, based on language that allowed ultimate authority to Mercer to change the bylaws without input from its medical staff members. Such language indicates a lack of the mutuality necessary for a contract to be formed, and without a contract, there can be no Section 1981 claim.
To successfully support a claim of discrimination under Section 1983, an individual must first present a prima facie case, which typically includes assertions that the person is a member of a protected class, that he is qualified for the position held or sought, that an adverse employment action occurred, and that similarly situated non-minority individuals were treated more favorably. Once a prima facie case has been established, the employer must provide evidence of a legitimate business reason for the adverse action. The ultimate burden remains upon the individual to show that the proffered reason is simply a pretext for discrimination. While the court found that Talwar did not present evidence of disparate treatment, it ultimately rested its dismissal on the fact that Talwar could not prove that Mercer’s proffered reason was pretextual.
Talwar argued that Ballard had presented incorrect information to Mercer and claimed that Ballard’s action, by itself, indicated racial animus. The court disagreed, stating specifically that “the mere fact that Ballard may have done a poor job gathering information on Dr. Talwar is not, however, evidence of animus.” Ballard relied on the Data Bank for her information, and accurately reported this information to Mercer – and the court found that there was no actual evidence of discriminatory animus in that action. Based on its finding that the defendants had acted with the understanding that the information related to Talwar was true and correct, the court granted summary judgment in favor of Mercer on the Section 1983 claim.
While Talwar argued that the defendants manifested a discriminatory intent by failing to make a reasonable effort to “fill the holes” in his application, the court disagreed, pointing out that as the applicant, Talwar himself bore the burden of fully completing the application. This is of note, because had Talwar presented evidence that the hospital had filled omissions in other (non-minority) applications, the case may have been decided differently. Consistency in employment processes and procedures is the key to successfully defending against claims of discriminatory treatment under Section 1983.