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No TRO for Prominent but Pseudonymous Surgeon Suing the University of Michigan for Allegedly Improper Suspension

The judge also says the plaintiff's request for pseudonymity was inadequately supported.


From Doe v. Board of Regents, decided today by Judge Gershwin Drain (E.D. Mich.); I blogged about the motion for a temporary restraining order two weeks ago:

Plaintiff alleges he is a tenured professor and world-renowned pediatric plastic surgeon who has been improperly suspended from the medical staff and clinical privileges at the University of Michigan and the University of Michigan Health System (collectively "Mid-Michigan").

Presently before the Court is the Plaintiff's Motion for a Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Be Issued, also filed on December 29, 2021. Plaintiff seeks an order enjoining Defendants from reporting Plaintiff's suspension to the National Practitioner Data Bank ("NPDB"), the State Board of Medicine or any other similar entity, as well as requiring Defendants to immediately reinstate Plaintiff's privileges to practice medicine at Mid-Michigan "unless a formal investigation, replete with due process, concludes with a finding that his continued practice would constitute a threat to patient safety." …

Plaintiff is a tenured professor of surgery in the Section of Plastic and Reconstructive Surgery at the University of Michigan Medical School. He also serves as a member of the University of Michigan medical staff.

In his Complaint, Plaintiff alleges that after raising "concerning administrative practices" related to transparency and accountability at Mid-Michigan, the Board disciplined him for three "non-event matters." The Board allegedly suspended Plaintiff's clinical privileges indefinitely due to the "non-event matters." In March of 2021, Dr. Lozon advised Plaintiff of his right to request a hearing and that his continued suspension triggered Mid-Michigan's statutory responsibility to report Plaintiff's suspension to Michigan's Department of Licensing and Regulatory Affairs ("LARA"). The Board also advised Plaintiff that it would report him to the NPDB, which Plaintiff alleges it subsequently did. Plaintiff requested a hearing on March 30, 2021.

Plaintiff further claims the Board reopened the "non-event matters" and conducted a peer-reviewed determination of Plaintiff's future at Mid-Michigan. Plaintiff states that the Board compelled him to complete a program in Kansas to address his behavioral concerns. The program purportedly serves troubled physicians with substance addiction illnesses and abusive behavioral issues.

Plaintiff's clinical privileges have been suspended for over nine months. Plaintiff has yet to receive his requested hearing and he fears his suspension can last for two years, without a hearing until 2023….

[1.] As a threshold matter, the Court may lack jurisdiction over Plaintiff. Fed. R. Civ. P. 10(a) ("The title of the complaint must name all the parties."). The Sixth Circuit Court of Appeals has reasoned that failing to seek permission to proceed under a pseudonym can prove fatal to a plaintiff's case because "federal courts lack jurisdiction over the unnamed parties, as a case has not been commenced with respect to them." While Plaintiff recites the applicable law for proceeding anonymously in this circuit, he does so in a cursory fashion. See Doe v. Porter, 370 F.3d 558, 560 (6th Cir. 2004); ECF No. 1, PageID.2; ECF No.3, PageID.62. [The court ordered plaintiff's forthcoming response to defendants' motion to dismiss to "include, but not necessarily be limited to, a discussion of each factor under Doe v. Porter." -EV]

[2.] Next, Plaintiff argues likely success on his Fourteenth Amendment procedural due process claim because he has a property interest in his medical staff privileges and salary. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Property rights are not created by the Constitution itself, but by "existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."

Based on Roth and subsequent cases, the Court finds Plaintiff unlikely to prevail on his federal claim. The "independent source" Plaintiff relies on in support of his property interest is the University of Michigan Hospital's bylaws. However, the bylaws do not grant Plaintiff a contractual right to practice medicine. Indeed, case law discussing property interests in medical staff privileges reaches the exact opposite conclusion to Plaintiff's argument. See Clark v. West Shore Hosp. (6th Cir. 2001) (explaining that "no  other court has recognized the 'effective termination' of medical staff privileges as a possible violation of a protected property interest."). Without evidence or authority suggesting otherwise, the Court declines to find Plaintiff likely to succeed on his federal claim.

Additionally, even if Plaintiff retained a property interest in his staffing privileges and salary, he has not plead facts indicating how each Defendant violated Plaintiff's constitutional protections. For example, Dr. Lozon communicated to Plaintiff that his suspension would be reported to the NPDB, the State of Michigan Board of Medicine and LARA. But those communications do not amount to any constitutional violation. Likewise, with Dr. Dimick, Plaintiff's allegations suffer from the same deficiency. The Court also denotes Plaintiff may have sued the incorrect Board because the Hospital's Board exercises control over medical staff and privileging decisions, not the Board of Regents.

Even assuming Plaintiff identified the correct Board, his brief fails to address affirmative defenses available to public officials and entities, such as the Eleventh Amendment of the United States Constitution and qualified immunity. The Court cannot conclude Plaintiff is likely to succeed when his briefing lacks discussion concerning the applicability of these defenses.

Accordingly, for all the aforementioned reasons, the Court finds Plaintiff unlikely to prevail on his federal claim….