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Hunter v. Hca

United States District Court, D. Utah

January 28, 2019

EDWARD G. HUNTER, Plaintiff,
v.
HCA, et. al., Defendants.

          REPORT AND RECOMMENDATION

          DUSTIN B. PEAD UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         This case is currently before Magistrate Judge Dustin Pead pursuant to a 28 U.S.C. §636(b)(1)(B) referral from District Court Judge Jill Parrish. (ECF No. 8.) Mr. Edward G. Hunter (“Plaintiff”) brings this action against Defendants (collectively “Defendants” or “ORMC”) alleging claims of deprivation of due process, breach of contract, violation of the Americans with Disability Act (“ADA”) or Rehabilitation Act, violation of Title VII of the Civil Rights Act of 1964, defamation, retaliation, harassment, and violation of Utah's drug testing laws. (Amended Complaint (“Am. Compl.”), ECF No. 36.)

         Defendants filed a motion to dismiss the amended complaint pursuant to Federal Rule Civil Procedure 12(b)(6). Attached to the motion is approximately 59 pages consisting of various letters, emails, and legal documents from the administrative action with the Division of Occupation and Professional Licensing (“DOPL”). On September 11, 2018, this court converted Defendants' motion to one for summary judgment pursuant to Federal Rule Civil Procedure 12(d) because the introduction of those documents constituted matters outside of the pleadings. (ECF No. 50.)

         Accordingly, each party was afforded an opportunity to submit all pertinent material to a summary judgment motion. Id. Briefing concluded in December of 2018. The court has carefully reviewed and considered the parties' summary judgment briefs. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District Court for the District of Utah, the court concludes oral argument is unnecessary.

         CAUSES OF ACTIONS DISMISSED

         In his Memorandum in Response to Defendants' Motion for Summary Judgment (“Opposition”), Plaintiff supports dismissal with prejudice of many of his claims. (Opposition, ECF No. 53 at 13, 15-17.) Plaintiff, however, requests the court deny summary judgment as to his first and second causes of action (breach of contract claims) and permit him leave to amend his ADA or Rehabilitation Act claim. Accordingly, the court RECOMMENDS the District Court dismiss all of Plaintiff's constitutional, criminal, and common law claims with prejudice consistent with the agreement of the parties. In turn, this Report and Recommendation addresses the remaining causes of actions and for the reasons set forth herein, the court RECOMMENDS the District Court GRANT Defendants' Motion for Summary Judgment (“Motion”) as to the remaining claims. (ECF No. 51.)

         SUMMARY OF FACTS

         From 2002 to 2017, Plaintiff was employed by Utah Imaging Associates (“UIA”) as an interventional radiologist physician assistant. Am. Compl. at 4, ¶9. Plaintiff had privileges at ORMC, as well as other hospitals, to perform radiology and minimally invasive in-patient and out-patient procedures. Id. During Plaintiff's time at ORMC, Plaintiff experienced significant personal issues that, as he acknowledges, compromised the safety of patients and co-workers. See Motion at 3, ¶3; Opposition at 4, ¶3; see also Plaintiff's December 5, 2016 Letter to DOPL (“DOPL Letter”), (ECF No. 53-2 at 3.)

         One such example occurred on October 24, 2016, when Plaintiff acted erratically during an interventional radiology procedure with a pediatric patient. As a result, another physician intervened. See Motion at 3, ¶4; Opposition at 4-5, ¶4. Plaintiff became angry, broke sterility protocol, and began yelling and screaming. See Motion at 3, ¶5; Opposition at 5, ¶5. Also, staff members at ORMC noticed Plaintiff sleeping at his desk while on duty, was difficult to rouse, and appeared heavily intoxicated during this same time period. See Motion at 3, ¶6; Opposition at 5, ¶6; see also DOPL Stipulation and Order, (ECF No. 51-1 at 3); DOPL Letter at 2. Plaintiff denies being intoxicated; however, he does admit using prescription medication that made him drowsy or could have made him appear intoxicated. See Opposition at 5, ¶6.

         On October 28, 2016, ORMC conducted what Plaintiff has described as an intervention to discuss his problems. See DOPL Letter at 2. According to ORMC's bylaws, a collegial and educational intervention “…is used to address issues pertaining to clinical competence or professional conduct.” ORMC Bylaws, (ECF No. 53-1 at 3-4.) Such interventions are used “… to prompt voluntary actions by the individuals to resolve an issue that has been raised, …prior to resorting to formal corrective action, …and [do] not afford the individual subject to such intervention[] to a Hearing and Appeal….” Id.

         During the October 28th intervention, Plaintiff was asked to submit to a drug test, which he did. See DOPL Letter at 2. Subsequently, the drug test results confirmed Plaintiff was taking his prescription narcotics and benzodiazepines. See Motion at 4, ¶9; Opposition at 7, ¶9. Plaintiff further referred to the levels as “toxic”. DOPL Letter at 2. In turn, UIA requested Plaintiff meet with DOPL to discuss his problems, which he did. See DOPL Letter at 2.

         Between October 28, 2016 and November 2, 2016, ORMC received complaints on its Ethics and Compliance hotline regarding unprofessional conduct by Plaintiff. See Motion at 4, ¶10; see also November 2, 2016, email from Brian Lines to Brett Palmer (“Lines email”), (ECF No. 53-3 at 2.) Consistent with the Ethics and Compliance policy, ORMC conducted an investigation, which included interviewing multiple sources who validated the claims submitted via the Ethics hotline. See Lines email at 2; see also Ethics and Compliance policy, ECF No. 51-1 at 11-15. As a result of the Ethics and Compliance hotline investigation, ORMC requested that Plaintiff not return work at ORMC. See Lines email at 2; DOPL Letter at 3. On December 1, 2016, Plaintiff resigned his privileges at ORMC. See Resignation Letter, (ECF No. 53-4 at 2.) Thereafter, Plaintiff self-reported his actions to DOPL. See DOPL Letter at 2-3.

         LEGAL ...


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