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….

Comments

[ah....Clem]

So, who came up with the idea of calling the University of Michigan and the UofM Health System "Mid Michigan"?

Imagine calling UCLA "Central California" or Western Mass "The mid-west". It makes no sense at all. "UM + UMHS" or something similar would make a lot more sense.

That said, his attempt (assuming "he" is actually a he) to shield his identity won't last long in the insular community that is UM+UMHS. Or if any reasonably skilled reporter decides to probe.

Can you say "Striessand Effect"?

[DaivdBehar]

Leave academia, double the income, halve the stress. Instead, he is compounding the problem with ruinous litigation. He is an at will employee. He can be fired for no reason, just not for an illegal reason, such as discrimination. One would have to read the Tenure contract, however.

One element missing from this case which would be useful to the country? Administrative actions are punitive and should be subject to Fifth Amendment Procedural Due Process rights. Which is preferable, 30 days in jail or the loss of a professional license? The demented, sicko, Supreme Court has refused to apply such rights to administrative matters. The government should be held accountable for quack regulation that destroys businesses and lives. The responsible officials should be made to pay out of personal assets. Deter the sicko, little tyrant bitches. We are really sick of this garbage government.

If the doctor has a bad temper, get treated easily. Go forth, make $millions elsewhere. Fund own research, not knowing what to do with all that money. It is ironic such a lofty individual in the business is going untreated, and generating a lot of preventable costs and lawyer waste.

[Holden C]

Again, Eugene Volokh purposefully ignores the very frequent situation where the defendant has done something very bad to the plaintiff (cyber-harassment, cyberstalking, doxing, online bullying) and the plaintiff tries to bring a suit to protect him/herself. In this case, the plaintiff was FORCED to bring a suit given the defendant's outrageous behaviour, so why should the plaintiff NOT be allowed to proceed anonymously? To refuse to allow plaintiff to proceed anonymously would only deprive the plaintiff of his/her right to justice, and would let the perpetrator off the hook.

Why does Eugene Volokh never seem to consider that there are some very bad people in the world who should be brought to justice, and victims of their crimes deserve access to justice but also deserve to be protected at the same time? Volokh seems to only care about the rights of the so called "defendants", many who are truly malicious, vile, bastards, who deserve to be publicly shamed for their crimes (such as cyberharassment, doxing, cyberstalking). He only addresses one side of the argument (when defendants are innocent), but what about egregious cases where defendants SHOULD BE publicly shamed?

If you don't want a plaintiff to sue you in civil court, DON'T engage in questionable or harmful online conduct. Is it that difficult? Do criminals, mentally-ill psychos, pervs, and trolls deserve so much consideration for their "rights", but the rights of the victims are purposefully ignored?

Is the right to be left alone (from harassment) not a fundamental right?

Eugene never considers the rights of the victims, as usual.

For Eugene, it's perfectly ok if victims of cybercrimes commit suicide, that's not relevant for him. He could care less. He is a danger to public safety.

[ReaderY]

I think the fact that the caselaw has gone against the plaintiff on the key merits issue - previous decisions held that a doctor does not have a property interest in maintaining medical staff privileges to a public hospital - is probably the key factor against issuing a TRO here, regardless of whether the doctor sued the right board.

Of course, Professor Volokh is probably more interested in the pseudonymity aspect. The court just said the petition perfunctorily cited the elements and offered no detailed factual explanation why the plaintiff meets the standard.

I don’t know the details. But given how many other much more mundane kinds of licenses and permits have been found to be property interests, I find myself surprised that a permit to practice medicine in a state hospital as a member of the staff would not be considered a property interest of some sort. It’s not exactly employment, but it would seem to have some similarities to being a kind of contractor with some sort of implied contract. And to the extent revocation of priveleges is based on a publicly communicated official finding of low quality or misconduct, I would think a doctor would have some right to a fair hearing or other procedural due process. Even though courts may well be very deferential to the expert judgments of doctors, I would think it odd that no due process rights at all wod be triggered.