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Verdict exceeds 1/2 m for resident not given due process.

CASE ON POINT: Driscoll v. Stucker, 2005 WL 106474 So.2d--LA

ISSUE: Should a hospital official, by fiat, bar an otolaryngology resident from being considered for board certification?

CASE FACTS: Dr. Peter Driscoll, a 1993 medical school graduate, entered the Residency Program in Otolaryngology at Louisiana State University Health Sciences Center (LSUHSC). LSUHSC represented that upon successful completion of the program residents are "board eligible." Dr. Fred Stucker was the Program Director and Chairman of the Residency Program in Otolaryngology. A close relationship existed between program schools and the Accreditation Council for Graduate Medical Education (ACGME). In that regard ACGME issued requirements for medical institutions that provided medical education in otolaryngology. Among the responsibilities of the Program Director was "implementing fair procedures, as established by the sponsoring institution, regarding academic discipline and resident complaints and grievances." Despite brief probationary periods during Dr. Driscoll's second and fourth residency years, he successfully remedied his deficiencies, and timely completed his six years of residency training in June of 2000. On June 22, 2000. Dr. Stucker provided Dr. Driscoll his final written evaluation/exit letter as required by ACGME standards. In addition, Dr. Stucker as Chairman of the Residency Program and Dr. Timothy Lian, Program Director of the Residency Program, provided Dr. Driscoll a written recommendation describing Dr. Driscoll "as a person of high moral character and worthy of examination by the American Board of Otolaryngology (ABO)." Thus, in keeping with representations regarding the successful completion of the Residency Program, Dr. Driscoll was "board eligible" and entitled to take the board certification examination of the ABO. Dr. Driscoll submitted his application. Just prior to graduation, Minden Medical Center (Minden) offered Dr. Driscoll a three-year contract. Dr. Driscoll applied for and received temporary medical staff-privileges at Minden. The privileges, however, were only temporary. Minden required its staff members to be "board eligible" in their specialty to maintain staff privileges and participate as active medical staff members. Kay Carter, a nurse at the V. A. Hospital where Dr. Driscoll provided supervisory duties in otolaryngology during part of his residency, told Dr. Stuck that Kevin Williams, scrub technician for the V.A., told her that Dr. Driscoll had been performing cosmetic surgery in a closed clinic. Carter told Dr. Stucker that she had seen dirty LSUHSC equipment trays at the V. A. after weekends, and noticed that supplies were missing. She also told Dr. Stucker of requests to her from Williams, a scrub technician, and Dr. Driscoll for preoperative narcotics. Dr. Stucker, who was also aware of missing equipment and surgical staples from LSUHSC, contacted Dr. Driscoll about Nurse Carter's allegations After initially denying that he performed surgical procedures in the closed LSUHSC clinic, Dr. Driscoll admitted that he once performed a closed nasal reduction and removed a lesion over a friend's eye on a weekend, but asserted that he had not charged the patient for his services. He admitted that he generated a medical chart for the procedure. However, he maintained that he had done no other medical procedures. On August 9, 2000, Dr. Stuck sent a letter to Dr. Gerald Healy, the Executive Vice-President of the ABO, strongly recommending that Dr. Driscoll be removed from consideration as a candidate for Board Certification. He outlined what had transpired as the basis for his request. Dr. Driscoll was unaware of the A request. Dr. Stucker successfully solicited each member of the faculty to join in his request to the ABO. When the ABO informed Dr. Driscoll that he would not be eligible to take the examination for Board Certification, he realized that he would no longer be eligible to accept Minden's offer of employment. Dr. Driscoll accepted a one-year fellowship in cosmetic surgery in California, earning $12,000 per year from November 2000 to November 2001. After unsuccessfully attempting to obtain a copy of the letter Dr. Stucker wrote to the ABO, and after being unable to elicit a response despite numerous attempts to contact Dr. Stucker, Dr. Driscoll sued LSUHSC and Dr. Stucker for breach of contract and denial of due process. The trial court granted partial summary judgment for the plaintiff against both defendants. The trial court awarded the plaintiff $785,000 in lost wages and $75,000 in general damages. The defendants appealed. The Court of Appeal affirmed the judgment of the trial court, but modified damages by reducing the lost wage claim to $540,000. The defendants appealed.

COURT'S OPINION: The Supreme Court of Louisiana reversed the judgment of the lower court as to Dr. Stucker's individual liability. However, it affirmed the judgment of the court as the judgment against LSUHSC.

LEGAL COMMENTARY: The case illustrates that hospitals cannot act in 'helter skelter' fashion. Hospital staff, including residents, are entitled to due process. The action taken was based, in part, on double hearsay--some by Nurse Kay.
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Article Details
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Title Annotation:Rx For Physicians Caveat; Louisiana State University Health Sciences Center, Peter Driscoll
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Geographic Code:1U7LA
Date:Feb 1, 2005
Previous Article:OH: suit is 'filed' within limitations period: did failure to timely 'serve' summons bar suit?
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