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Keenan v. Maricopa County Special Health Care District

United States District Court, D. Arizona

August 22, 2018

Jack B. Keenan, M.D., an individual, Plaintiff,
v.
Maricopa County Special Health Care District, d.b.a. Maricopa Integrated Health System, a political subdivision of the State, et al., Defendants.

          ORDER

          H. RUSSEL HOLLAND UNITED STATES DISTRICT JUDGE.

         Motion to Dismiss

         Defendants Elizabeth M.N. Ferguson, M.D., and Tammy R. Kopelman, M.D., move to dismiss plaintiff's claims against them.[1] This motion is opposed.[2] Oral argument was not requested and is not deemed necessary.

         Background

         Plaintiff is Jack B. Keenan, M.D. Defendants are the Maricopa County Special Health Care District, d/b/a Maricopa Integrated Health System (MIHS); Elizabeth M.N. Ferguson, M.D.; and Tammy R. Kopelman, M.D.

         Plaintiff alleges that he was a resident physician in MIHS' General Surgery Training Program.[3] Plaintiff began his residency on June 8, 2016.[4]

         Dr. Ferguson is alleged to have been the Program Director and the Designated Institutional Officer for MIHS' residency program.[5] Dr. Ferguson is alleged to be an employee of MIHS.[6]

         Dr. Kopelman is alleged to have been the attending physician in the Trauma Department.[7] Dr. Kopelman is alleged to be an employee of MIHS.[8]

         Plaintiff alleges that “between November 2016 and March 2017, Dr. Kopelman and Dr. Ferguson directly documented, or encouraged senior residents to document a series of false complaints” against him.[9] More specifically, plaintiff alleges that Dr. Kopelman falsely claimed that he did not perform an eye exam on a patient who presented to the emergency room complaining of an eye injury.[10] Plaintiff also alleges that shortly thereafter, “Dr. Kopelman falsely documented in [his] personnel file that he had ignored an emergency department patient who was pulseless in an extremity for a medically significant period of time.”[11]

         Plaintiff alleges that on February 2, 2017, Dr. Ferguson informed him that Dr. Kopelman was giving him a failing grade for his November 2016 Trauma rotation.[12] Plaintiff alleges that Dr. Ferguson placed him on “Concern Status” that same day.[13]

         Plaintiff alleges that Dr. Kopelman also gave him a failing grade for a second Trauma rotation that he completed in early February 2017.[14]

         Plaintiff alleges that on March 31, 2017, Dr. Ferguson falsely accused him of “threatening to engage in a physical altercation with another resident in the ICU. . . .”[15]

         Plaintiff alleges that he was placed on probation on April 10, 2017.[16] Dr. Ferguson is alleged to have signed the April 10 probation letter.[17] Plaintiff alleges that he was told in the letter that he was being placed on probation for four reasons:

• Threat of physical altercation to colleague at bedside of SICU on 3/31.
• Worked Friday day, 4/7/17 despite the call schedule clearly stating night call. When chief resident noted discrepancy, Dr. Keenan was sent home & unable to return to shift until 11PM.
• No call/no show today (4/10/17).
• Failure to return loaner pager and respond to multiple inquiries by switchboard.[18]

         Plaintiff further alleges that on April 17, 2017, Dr. Ferguson informed him that he had received a failing grade for his general surgery rotation, which he had recently completed.[19]Plaintiff alleges that Dr. Ferguson “pressured the attending who had supervised the general surgery rotation to change” his grade from a pass to a fail.[20]

         Plaintiff alleges that he “timely contested the accuracy and sufficiency of the allegations in the April 10, notice of probation.”[21] Plaintiff alleges that a hearing on the probation notice was held on May 18, 2017.[22] Plaintiff alleges that Dr. Ferguson was allowed to “submit and comment on a broad range of allegations” including the failed general surgery rotation, [23] an event that occurred after he had received the probation notice.

         Plaintiff alleges that on May 25, 2017, he met with Dr. Chandrika Shankar, the Probation Appeals Committee Chair, and Phyllis Thackrak, the Director of Academic Affairs, “at which time, Dr. Shankar and Ms. Thackrak presented to [him] a written letter signed by the Appeals Committee that day advising that the Appeals Committee concluded that the decision to place him on probation was not arbitrary or taken without reasonable cause.”[24] At that meeting, plaintiff advised Dr. Shankar and Ms. Thackrak that “he had recorded conversations of his attendings that unequivocally contradicted statements presented to the Appeals Committee during the” May 18, 2017 hearing.[25]

         Plaintiff alleges that Dr. Ferguson “used the recordings as a basis to terminate” him.[26]Plaintiff alleges that he was notified by Dr. Eric Katz in a letter signed on May 30, 2017 that “MIHS was beginning the process to terminate his medical resident employment agreement.”[27]Plaintiff alleges that he was advised that he was being terminated for violating MIHS Policy 69752-S, which governs the use of cameras and video or audio recorders in the “workplace.”[28]Plaintiff also alleges that he was advised that he was being terminated for violating “MIHS Policy 77127 which requires employees to maintain high standards of honesty and integrity.”[29]

         Plaintiff commenced this action on May 24, 2018. In his complaint, plaintiff asserts defamation claims against Dr. Ferguson and Dr. Kopelman. Plaintiff alleges that Dr. Ferguson and Dr. Kopelman “defamed [him] by repeatedly making statements that [they] knew or should ...


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