Elkharwily v. Mayo Holding Co.

84 F. Supp. 3d 917, 2015 U.S. Dist. LEXIS 13637, 2015 WL 468400
CourtDistrict Court, D. Minnesota
DecidedFebruary 5, 2015
DocketCivil No. 12-3062 (DSD/JJK)
StatusPublished
Cited by4 cases

This text of 84 F. Supp. 3d 917 (Elkharwily v. Mayo Holding Co.) is published on Counsel Stack Legal Research, covering District Court, D. Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elkharwily v. Mayo Holding Co., 84 F. Supp. 3d 917, 2015 U.S. Dist. LEXIS 13637, 2015 WL 468400 (mnd 2015).

Opinion

ORDER

DAVID S. DOTY, District Judge.

This matter is before the court upon the motions for summary judgment and to exclude expert testimony by defendant Mayo Clinic Health System — Albert Lea (MCHSAL). Also before the court is plaintiff Alaa Elkharwily’s objections to the order of Magistrate Judge Jeffrey J. Keyes denying his request for sanctions. Based on a review of the file, record, and proceedings herein, and for the following reasons, the motion for summary judgment is granted, the expert motion is denied as moot, and the objections are overruled.

BACKGROUND

This employment dispute arises out of the termination of Elkharwily by MCHSAL. Elkharwily held a hospitalist position — his first post-residency job — at MCHSAL from September 7, 2010, through December 10, 2010. Elkharwily Dep. Vol. I at 19:19-20:10, 83:24-85:1. Elkharwily was MCHSAL’s first full-time hospitalist. Frohman Decl. Ex. 3, at 1; Heinz Dep. at 8:5-13. Elkharwily’s duties included providing “care from admission to discharge for patients referred from Family Medicine and Internal Medicine, unattached medical patients, and hospitalized patients of medical and surgical specialties.” Frohman Decl. Ex. 3, at 3. Among other duties, Elkharwily was specifically charged with helping refine the “hand-off’ process by which patients are released to the care of their primary providers or consultants “when hospitalization has ended, a transfer is required or care is being shifted to another physician.” Id.; see also id. Exs. 4-10.

[920]*920Elkharwily reported directly to Dr. Dieter Heinz, chair of the division of medicine, and indirectly to an administrative team including Dr. Mark Ciota, CEO; Dr. John Grzybowski, medical director; Steve Underdahl, hospital administrator; and Lori Routh, nurse executive. Heinz Dep. at 8:17-18; Grzybowski Dep. at 8:7-12, 9:6-15; Routh Dep. at 6:22-7:8; Under-dahl Dep. at 9:21-10:3. Elkharwily’s employment was governed by a contract that contemplated sixty days’ notice for termination without cause or sixty days’ pay in lieu of notice. Stark Deck Ex. A., ¶ 12. Additionally, under MCHSAL policy, Elk-harwily was on probationary status during the first ninety days of his employment.1 See Frohman Deck Ex. 16. The policy states that new employees will be evaluated in writing before the ninetieth day of employment and that the evaluation will include a recommendation as to whether (1) the employee will be accepted for continued employment, (2) the probationary period will extend for up to thirty additional days, or (3) the employee will be terminated. Id. at 1.

Elkharwily, who suffers from bipolar disorder, was also required to participate in the State of Minnesota’s Health Professionals Services Program (HPSP) while employed at MCHSAL. Frohman Deck Exs. 19-20. HPSP required Elkharwily to have a work-site monitor who would supervise him and submit quarterly reports assessing his work performance. Id. Ex 20, at 1-2. Ciota served as Elkharwily’s work-site monitor. Id. Ex. 18.

In preparation for Elkharwily’s ninety-day evaluation, Underdahl gathered information from nursing supervisors, physicians, and other staff. Underdahl Dep. at 32:18-33:22, 36:14. Through that process, Underdahl identified the following areas of concern: (1) Elkharwily had difficulty organizing and prioritizing his work; (2) staff was unable to reach him at times; (3) emergency room physicians found him adversarial, resistant to admitting patients, and perceived that he unnecessarily generated work for the emergency department; (4) nursing staff did not trust his instructions or his interpretation of events; (5) he incorrectly told nursing staff that he could only care for twelve patients at any given time; and (6) he did not complete documentation in a timely manner. Frohman Deck Ex. 15, at 1-2.

On November 29, 2010, Underdahl drafted the review, which set forth the above-stated concerns and extended Elk-harwily’s probationary status for an additional ninety days. Id. The report also noted that staff members who had early praise for Elkharwily had “begun to sound much more pessimistic” about his performance. Id. at 2.

While Underdahl prepared Elkharwily’s evaluation, Ciota — with the help of physician services coordinator Diane Clark— independently prepared the HPSP report. Clark Dep. at 47:6-48:22, 50:1-9, 51:3-24. Clark solicited information from nurse supervisors and compiled the responses in a confidential report. See Frohman Deck Ex. 22. The information received was similar to that gleaned during the performance evaluation. Specifically, staff reported that Elkharwily (1) was sometimes difficult to locate; (2) did not manage his time well and was disorganized; (3) was difficult to work with regarding end-of-life care; (4) became easily frustrated; and (5) did not communicate orders effectively to nursing staff. Id. at 2-3. Ciota sent the report to the State of Minnesota on December 6, 2010. Id. at 1.

[921]*921Underdahl planned to discuss the performance evaluation with Elkharwily along with his supervisor Heinz, when Heinz returned from out of town. Underdahl Dep. at 32:8-17. On December 7, 2010, before that meeting could take place, Elkharwily ordered nurse Brooke Thiele to give a patient IV Tylenol. Frohman Decl. Ex. 23. Unfamiliar with that form of Tylenol, Thiele questioned the order and Elkharwily confirmed that he wanted IV Tylenol administered. Id. Thiele then asked whether Tylenol came in IV form. Id. Elkharwily responded that IV Tylenol was available because he recalled giving it to a patient two days prior. Id. Thiele then contacted the hospital pharmacy.. Id. The pharmacist confirmed that the hospital for-mulary did not carry IV Tylenol.2 Id. When presented with that information, Elkharwily told Thiele to give the patient Tylenol via NG tube. Id.

On December 8, 2010, Thiele reported the Tylenol incident to the Nurse Executive, Lori Routh, who in turn reported it to Underdahl. Routh Dep. at 46:1-48:7. Routh and Underdahl then discussed the incident with Elkharwily. Id. at 48:14-50:8; Elkharwily Dep. Vol. I at 61:18-62:18. Elkharwily insisted that IV Tylenol was available and maintained that he had given it to a patient just days before. Routh Dep. at 51:7-52:5; Underdahl Dep. at 111:2-7, 112:7-15. When Underdahl told Elkharwily that the medication was not available in the formulary, Elkharwily immediately changed his story by saying that he believed that IV Tylenol would have been a good choice had it been available. Underdahl Dep. at 112:15-25. Elk-harwily admits that he ordered IV Tylenol and that he believed he had given that medication to a patient a few days before, but he denies that the incident was significant. Elkharwily Dep. Vol. I at 53:24-56:4, 61:3-8.

Concerned with Elkharwily’s response, MCHSAL placed him on paid administrative leave until it could fully investigate the incident. Underdahl Dep. at 118:22-119:4. MCHSAL was specifically concerned about patient safety and Elkharwily’s reliability, which was already in question given the comments elicited during the evaluation process. Id. at 116:5-10, 122:4-123:4; see also Frohman Decl. Exs. 15, 22.

Underdahl and Routh conducted nursing staff interviews on December 9, 2010, to assess Elkharwily’s patient safety and care. Underdahl Dep. at 123:22-125:14; Routh Dep. at 65:11-19, 67:2-68:7.

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84 F. Supp. 3d 917, 2015 U.S. Dist. LEXIS 13637, 2015 WL 468400, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elkharwily-v-mayo-holding-co-mnd-2015.