UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _______________________________________ ) ) DEAN KEVIN LURIE, M.D., ) Plaintiff, ) ) Civil Action No. 06-01386 (RCL) v. ) ) MID-ATLANTIC PERMANENTE ) MEDICAL GROUP, P.C., ) Defendant. ) _______________________________________)
MEMORANDUM OPINION
Before the Court is plaintiff’s Motion to Alter or Amend Judgment. Upon consideration
of the Motion, the Opposition thereto, the Reply brief, applicable law, and the entire record, the
Court will deny the Motion for the reasons that follow.
I. FACTUAL BACKGROUND
Dr. Kevin Lurie worked as a surgeon for Mid-Atlantic Permanente Medical Group
(“Mid-Atlantic”) or its predecessor company from 1988 until he was fired in October 2005.
Lurie Dep. 17, 187, Oct. 6, 2008, ECF No. 68-4. Mid-Atlantic doctors treat patients at over thirty
Mid-Atlantic-run medical centers in Virginia, Maryland, and the District of Columbia, as well as
certain other hospitals in the area. Cahiff Aff. ¶ 4, Nov. 21, 2008, ECF No. 68-3. Dr. Lurie had a
thriving surgical practice, specializing in general and vascular surgery and treating patients
throughout D.C. and Maryland. E.g., Lurie Dep. 6. Dr. Lurie was also the principal investigator
on clinical trials to develop a new medical device, a combination graft catheter system, that
would aid human dialysis. Id. 234–35.
1 After working at the Washington Health Center (“WHC”) in the District of Columbia for
three years, Dr. Lurie began to question the quality of Mid-Atlantic’s medical care. Id. 85–86.
Dr. Lurie was disturbed by what he believed were “wide variations from [the] standard of
community care” that were—in his eyes—“perhaps negligent and malpractice.” Id. at 86. In
addition to being troubled by other doctors’ treatment of their own patients, as any concerned
colleague would be, Dr. Lurie was also troubled by how WHC doctors and staff treated his own
patients. To remedy the problem, Dr. Lurie made a presentation to the hospital’s surgical
oversight committee. Id. at 67–74.
Dr. Lurie’s presentation was fiercely critical. Not only did Dr. Lurie tell the committee
that “patients were treated badly and in an unsafe fashion,” but he also stated that the hospital
treated Mid-Atlantic physicians like “second-class citizens.” Id. at 75. According to Dr. Lurie,
WHC provided “poor,” “incompetent,” and perhaps even “dangerous” staff coverage to doctors
affiliated with Mid-Atlantic; all seemingly valid grounds for protest. Id. at 74. Yet upon hearing
of Dr. Lurie’s presentation, Mid-Atlantic scolded Dr. Lurie and warned him not to repeat his
“destructive” protests, because they jeopardized Mid-Atlantic’s “efforts to build a constructive
working relationship with WHC.” Mem. from Dr. Manning to Dr. Lurie, July 11, 2001, ECF No.
68-7. The facts do not indicate whether Dr. Lurie continued to complain, but he certainly never
reported or threatened to report these issues to governmental bodies or other external entities.
Lurie Dep. at 218–21.
On top of his difficulties with the hospital staff and administration, Dr. Lurie also did not
get along with his colleagues, who he described as “inexperienced.” Id. at 116. The other doctors
and surgical residents had personal gripes with Dr. Lurie too, so much so that the Chairman of
Surgery, Dr. Kirkpatrick, stated that Dr. Lurie’s mere presence “incites . . . discord, hyperbole,
2 and increasing tension,” as if he walked about with an air of dissonance. Letter from Dr.
Kirkpatrick to Dr. Manning, June 22, 2001, ECF 68-6.
The reason for this tension is unclear. On the one hand, Dr. Lurie suggests it was a
reaction to his repeated safety and quality of care complaints—a reaction by those who resented
Dr. Lurie’s purportedly constructive criticism. Lurie Dep. 85–86. On the other hand, Dr.
Kirkpatrick maintains that “Dr. Lurie’s practice style in and out of the operating room has
created tension and concern among the surgical residents.” Letter from Dr. Kirkpatrick to Dr.
Manning, June 22, 2001. In other words, the way in which Dr. Lurie practiced medicine was
somehow off-putting and perhaps even unsafe. Dr. Kirkpatrick further suggested that Dr. Lurie’s
criticisms were meant to “strike back” against colleagues’ belief that he was “an ‘unsafe’
surgeon.” Id. Whatever the reason, Dr. Lurie and his superior each ascribed the tense atmosphere
to the hospital or Dr. Lurie, respectively. To restore the smooth operation of WHC’s surgical
department, Dr. Lurie was reassigned to Holy Cross Hospital in Silver Spring, MD. Id.; Lurie
Dep. 85–86.
Nonetheless, Dr. Lurie was transferred back to WHC in 2003 when the hospital needed
more experienced surgeons. Lurie Dep. 102. Upon his return, Dr. Lurie continued to have
problems with other doctors. Again, Dr. Lurie complained about the quality of care, and again,
his superior attributed the tension to Dr. Lurie’s failure to “seek and gain the respect of the
resident staff.” Letter from Dr. Kirkpatrick to Dr. Manning 2–3, Sept. 9, 2003, ECF No. 68-8.
Within a few short months of Dr. Lurie’s return, Dr. Kirkpatrick warned Dr. Lurie that he was
engaged in “a crescendo of abusive behavior.” Letter from Dr. Kirkpatrick to Dr. Lurie 2, Nov.
6, 2003, ECF No. 68-9. It was as if Dr. Lurie had never left: his actions perpetuated a “persistent
breakdown in relations with the surgical residency dating back at least to 2001.” Id. at 1.
3 According to Dr. Lurie, he “did not get along with the surgical residents, because [he] didn’t
think it was safe for them to scrub with [him].” Lurie Dep. 116. Indeed, “many of the surgeons . .
. got fired . . . because they weren’t performing up to par.” Id. at 117. On account of these
problems, and despite WHC’s need for more experienced surgeons, Dr. Lurie was transferred to
another D.C. site, Mid-Atlantic’s North Capital Street center. Id. at 119–20.
Later in November 2003, the discord between Dr. Lurie and Mid-Atlantic peaked. A
quality review committee ordered Dr. Lurie to follow a “performance improvement plan” that
required him to—among other things—“refrain from blaming others” for work-related incidents.
Performance Improvement Planning Form, Nov. 24, 2003, ECF No. 68-11. Dr. Lurie disputes
this assessment, claiming that the committee members would “beat on the drum . . . to find
something they didn’t like and cite [him]” for it; in Dr. Lurie’s case, this was his commitment to
raising quality of care issues. Lurie Dep. 98. According to Dr. Lurie, the committee’s sole
function was actually to “intimidate physicians” who raised quality of care issues. Id. at 99.
Eventually, the beleagered Dr. Lurie was transferred in 2004 to Mid-Atlantic’s Largo,
Maryland center. Id. at 119–20. But the behavioral problems continued there, too. A few months
before he was fired, Dr. Lurie was asked to leave a training session for being “uncooperative and
disruptive.” Written Warning Letter from Dr. Schwartz to Dr. Lurie, May 26, 2005, ECF No. 68-
14. Again, Dr. Lurie blamed the trainer and his superior for blowing the incident out of
proportion. According to Dr. Lurie, he had been asked to leave because of racial prejudice, his
age, and because he had been reading a newspaper with his friend’s son’s obituary. Lurie Dep. at
183–84, 186–87. Dr. Lurie continued to regularly see patients in D.C. until his discharge in 2005.
Id. at 119. This work consumed a small fraction of his time and did not involve surgery. Id.
4 When he was fired, Dr. Lurie was also seeing patients at Holy Cross Hospital in Silver Spring,
Maryland. Id. at 118. In October 2005, Dr. Lurie was terminated. Id. at 120.
Mid-Atlantic claims it fired Dr. Lurie for his disciplinary problems and for allegedly
falsifying time sheets. Mem. Supp. Def.’s Mot. Summ. J. 11, Jan. 29, 2010, ECF No. 68-2. Mid-
Atlantic often double-booked patients, and Dr. Lurie would record fake evening appointments as
extra billed hours to compensate for the increased daytime workload. Lurie Dep. 284–86, 300–
02. In contrast, Dr. Lurie says he followed an accepted billing method and was actually fired
because he reported quality of care concerns, he was Jewish, and Mid-Atlantic wanted to
circumvent its responsibilities to pay his pension. Lurie Dep. 86–87, 122, 186, 300.
II. PROCEDURAL BACKGROUND
In 2006, Dr. Lurie sued under D.C. and Maryland common law for wrongful discharge,
breach of contract, and tortious interference. Compl. 10–12, Aug. 4, 2006, ECF No. 1. He also
sued under federal law for employment discrimination in violation of the Age Discrimination in
Employment Act (ADEA) and the Employee Retirement Income Security Act (ERISA). Id. at 8–
10. Mid-Atlantic countersued for breach of contract, fraud, negligent misrepresentation, and
unjust enrichment. Countercl. 10–13, Sept. 5, 2006, ECF No. 2.
The Court dismissed Mid-Atlantic’s counterclaims for lack of jurisdiction and granted
Mid-Atlantic’s motion for summary judgment on all of Dr. Lurie’s claims. Lurie v. Mid-Atlantic
Permanente Medical Group, 729 F. Supp. 2d 304, 313 (D.D.C. 2010). In particular, the Court’s
ruling on the common law claim for wrongful discharge, which Dr. Lurie now moves to alter,
was that Dr. Lurie was “unable to identify an appropriate public policy on which to base his
claim.” Id. at 326. Under both D.C. and Maryland common law, an employee may sue for
wrongful discharge if the discharge violates a clear mandate of public policy as announced by a
5 constitution, statute, or regulation. Dr. Lurie offered several statutes, regulations, professional
standards, and internal company policies that the Court found insufficient to support a wrongful
discharge claim. Id. at 327–28. For instance, one relevant statute was D.C. Code Section 7-161,
which requires health care providers to report adverse medical events. D.C. Code § 7-161 (2010).
Dr. Lurie claimed his repeated complaints to hospital administrators and oversight committees
were protected under this statute. The Court held otherwise, finding that Dr. Lurie “[did] not
allege that he was terminated for attempting to submit the required reports or otherwise take his
grievances about patient care to government authorities.” 729 F. Supp. 2d at 327.
Dr. Lurie now moves under Rule 59(e) to alter this Court’s ruling on his wrongful
discharge claim, relying on a recent Maryland Court of Appeals case that he claims is an
intervening change in Maryland law. In Lark v. Montgomery Hospice, 994 A.2d 968 (Md. 2010),
nurse Susan Lark was fired by the Montgomery Hospice after discovering and internally
reporting the improper prescription and shipment of adult doses of narcotics to pediatric patients’
homes. 994 A.2d at 970–71. Over the prior year, Lark had reported to her supervisors other
instances of misconduct, including improper documentation, a lack of clinical supervision, and
errors in the delivery of other medicine besides narcotics. Id. at 972. After being fired, Lark sued
for wrongful discharge in violation of public policy under either Maryland common law or the
Health Care Worker Whistleblower Protection Act, Md. Code Ann., Health Occ. §§ 1-501 to 1-
506 (West 2002), claiming both protected her from being fired for reporting quality of care
issues. Id. at 971.
On a motion for summary judgment, the Maryland trial court found that Lark’s internal
reports did not come within the scope of activity protected by the Act, because Lark did not
report or threaten to report the issues to an external body. Id. at 974–75. The trial court also
6 found that Lark’s discharge did not violate public policy, so Lark’s common law claim failed as
well. Id. The Maryland Court of Appeals reversed, stating that “the report of unlawful acts to an
external board is not a condition precedent to a civil action under the Act.” The Court of Appeals
then remanded the case to the trial court for further proceedings.
Dr. Lurie argues that Lark is an intervening change in the law governing this Court’s
decision on his common law wrongful discharge claim. He believes that Lark’s holding about
external reporting requires the Court to alter its denial of his wrongful discharge claim.
III. THE LEGAL STANDARD FOR RULE 59(e)
Rule 59(e) allows a district court to correct its own mistakes in the period immediately
following the entry of an order. White v. N.H. Dep’t of Emp’t Sec., 455 U.S. 445, 450 (1982).
Though a court has considerable discretion in granting Rule 59(e) motions, it only needs to do so
when it finds that there has been an intervening change of controlling law, that new evidence is
available, or that granting the motion is necessary to correct a clear error or to prevent a manifest
injustice. Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam). Moreover,
“[a] Rule 59(e) motion to reconsider is [neither] . . . an opportunity to reargue facts and theories
upon which a court has already ruled,” New York v. United States, 880 F. Supp. 37, 38 (D.D.C.
1995), nor a vehicle for presenting theories or arguments that could have been advanced earlier.
Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993). And Rule 59(e) motions are
generally granted only in extraordinary circumstances. Liberty Prop. Trust v. Republic Props.
Corp., 570 F. Supp. 2d 95, 97 (D.D.C. 2008) (citing Niedermeier v. Office of Max S. Baucus, 153
F. Supp. 2d 23, 28 (D.D.C. 2001)).
7 IV. DISCUSSION
This Court previously held that none of Dr. Lurie’s state law claims, which were before
the Court because of diversity jurisdiction, could survive summary judgment under Maryland or
D.C. law, and therefore did not conduct the choice of law analysis for each individual claim. 729
F. Supp. 2d at 325. Now, to decide whether Lark represents an intervening change of controlling
law requiring reconsideration, the Court must first decide which jurisdiction’s law—Maryland’s
or the District of Columbia’s—controls. After concluding that D.C. law applies, the Court
concludes that Dr. Lurie’s new Maryland case is inapposite. Nonetheless, the Court also explains
that Dr. Lurie’s Motion would fail even if Lark did apply. Finally, the Court denies Dr. Lurie’s
request to use his Rule 59(e) motion to bring a new claim under the Health Care Worker
Whistleblower Protection Act.
A. Choice of Law
D.C. federal courts must use D.C. choice of law rules to decide conflict of law questions.
Perkins v. Marriott Int’l, Inc., 945 F. Supp. 282, 284 (D.D.C. 1996). D.C. law uses a
“governmental interests analysis” to choose which jurisdiction’s substantive law applies to tort
cases, in which a court weighs each jurisdiction’s interest in having its law apply. Id. In this
analysis, a court must consider the jurisdictions’ interests regarding “the various distinct issues to
be adjudicated” as well as the jurisdictions’ general interests. Estrada v. Potomac Electric Power
Co., 488 A.2d 1359, 1361 (D.C. 1985). A court must also consider: “(1) the place where the
injury occurred; (2) the place where the conduct causing the injury occurred; (3) the domicile,
residence, nationality, place of incorporation, and place of business of the parties; and (4) the
place where the relationship is centered.” 945 F. Supp. at 284.
8 Applying this test, the Court finds that the District of Columbia’s governmental interest
outweighs Maryland’s, so the Court will apply D.C. law. Consequently, the Maryland case Dr.
Lurie offers is irrelevant.
D.C. has a strong interest in applying its law, because Dr. Lurie and Mid-Atlantic’s
relationship was centered in D.C. Dr. Lurie began his Mid-Atlantic employment at a D.C. site,
WHC. Lurie Dep. 85–86. He continued seeing patients in D.C. at WHC and at the North Capital
Street center throughout his employment. Id. at 119. His disruptive actions in D.C.—some of
which involved calling attention to poor treatment of patients and doctors—prompted Mid-
Atlantic to transfer him out of D.C. For example, in 2001, Dr. Lurie made a highly critical
presentation to a surgical quality committee in D.C., after which Mid-Atlantic issued a stern
warning and transferred him to a Maryland hospital. Id. at 75, 85–86. Then, in 2003, after being
transferred back to a D.C. hospital, Dr. Lurie refused to operate alongside other surgeons,
because he believed their inexperience endangered his patients. Id. at 116. In response, the D.C.
hospital took the extraordinary step of banning all of its surgical residents from treating Dr.
Lurie’s patients. Id. at 114–15. These and other problems again caused Mid-Atlantic to transfer
Dr Lurie out of D.C. If Mid-Atlantic fired Dr. Lurie for raising quality of care issues, they were
certainly issues Dr. Lurie faced and challenged while working in D.C.
D.C. also has a general interest in applying its law. If a multi-state employer could
circumvent a wrongful discharge claim supported by D.C. public policy by transferring an
employee to another state and then firing him, D.C.’s wrongful discharge law would be greatly
weakened. Here, Mid-Atlantic dealt with Dr. Lurie’s complaints for years while keeping him
based primarily at D.C. sites; only when Mid-Atlantic was almost at its wits’ end, did Mid-
Atlantic transfer Dr. Lurie to Maryland. About a year and a half later, Mid-Atlantic fired Dr.
9 Lurie. This series of actions could plausibly be considered an attempt to circumvent a wrongful
discharge claim supported by D.C. public policy. 1
Although Dr. Lurie’s injury and the conduct causing it—Dr. Lurie’s firing and the
decision to fire him—happened at Mid-Atlantic’s Rockville, Maryland site, Cahill Aff. ¶15, none
of the other factors relevant to the “governmental interests analysis” favor Maryland over D.C.
The domicile, residence, nationality, place of incorporation, and place of business of the parties
do not favor either Maryland’s or D.C.’s interest, because both Dr. Lurie and Mid-Atlantic have
mixed ties to each jurisdiction. Mid-Atlantic is a Maryland corporation and has Maryland and
D.C. places of business, and Dr. Lurie lives in D.C., worked mostly at D.C. sites for seventeen
years, but had been working primarily at Maryland sites for about a year and a half before he was
fired. Complaint 4; Lurie Dep. 120.
Further, both D.C. and Maryland have a similar interest in maintaining their standards of
medical care, which a health care provider would jeopardize by firing whistleblowers who
question standards of care. The facts of this case, though, indicate that most if not all of Dr.
Lurie’s supposed whistleblowing was centered around Mid-Atlantic’s WHC site in D.C. Indeed,
Dr. Lurie originally argued that D.C. law, not Maryland law, should apply to his claims. 2 Pl.’s
Opp’n Mot. Summ. J. 22, Mar. 1, 2010, ECF No. 72. An observer unfamiliar with the leeway the
American legal system accords to plaintiffs raising mutually exclusive arguments might even
interpret Dr. Lurie’s opportunistic flip-flopping as a waste of the Court’s time.
In any event, in light of the application of D.C. law to Dr. Lurie’s wrongful discharge
claim, Dr. Lurie’s main contention is nonsensical. This Court previously held that when Mid-
Atlantic fired Dr. Lurie, it did not jeopardize D.C.’s interest—as embodied in D.C. Code § 7-161
1 In its prior opinion, this Court found no support under D.C. law for Dr. Lurie’s claim. 729 F. Supp. 2d at 313. 2 Dr. Lurie also argued that California law should apply, because Mid-Atlantic had some affiliation with a California-based entity.
10 (2010)—in health care providers reporting adverse medical events to the government. 729 F.
Supp. 2d at 327. This Court explained that Dr. Lurie did not externally report or threaten to
report his grievances to government authorities, so firing him did not come within the scope of
the public policy this statute announces. Id. No development in Maryland law could affect this
conclusion, so Dr. Lurie’s Motion must fail.3
Even if Maryland law did apply, the Lark decision does not change the Maryland
common law of wrongful discharge such that Dr. Lurie’s claim is now viable.
B. Common Law Wrongful Discharge Claim
The claim of wrongful discharge under Maryland common law “is inherently limited to
remedying only those discharges in violation of a clear mandate of public policy which otherwise
would not be vindicated by a civil remedy.” Makovi v. Sherwin-Williams Co., 561 A.2d 179, 180
(Md. 1989). A “clear mandate of public policy” is “a preexisting, unambiguous, and
particularized announcement, by constitution, enactment, or prior judicial decision, directing,
prohibiting or protecting the conduct (or contemplated conduct) in question, so as to make the
Maryland public policy on the topic not a matter of judicial conjecture or even interpretation.”
Sears, Roebuck & Co. v. Wholey, 779 A.2d 408, 419 (Md. Ct. Spec. App.). Accordingly,
Maryland has an exacting standard for how clear and established a public policy mandate must
be to support a common law wrongful discharge claim. To prevail on this Motion, Dr. Lurie
must show that, under Lark, his wrongful discharge claim was supported by (1) a clear mandate
of public policy (2) not otherwise vindicated by a civil remedy.
3 Dr. Lurie’s argument that firing him violated the public policy announced by D.C. Code § 3-1205.14(a)(26) (1995), Mem. P. & A. Supp. Pl.’s Mot. Alter or Amend J. 7–8, Sept. 7, 2010, ECF No. 87, is flawed for the same reason.
11 1. A Clear Mandate of Public Policy
Lark does not change the fact that Dr. Lurie’s wrongful discharge claim was not
supported by a clear mandate of public policy. First, if Dr. Lurie wanted to rely on the public
policy described in Lark, he should have done so when he filed his original complaint. Although
Lark had not yet been decided, the statute Lark describes as “an unambiguous and particularized
pronouncement of Maryland public policy,” the Health Care Worker Whistleblower Protection
Act, did exist in its current form when Dr. Lurie first sued. Dr. Lurie cannot now introduce a
source of clear public policy that existed before. A Rule 59(e) motion is not a vehicle to
introduce arguments that could have been advanced earlier. 995 F.2d at 276.
Second, even if Lark clarifies or changes Maryland’s public policy, that is—at best—
evidence that the prior public policy was a “matter of judicial conjecture or even interpretation”
and was not sufficiently “unambiguous” to support a claim. 779 A.2d at 419. Moreover, Lark
does not address the common law cause of action for wrongful discharge. Although the Lark
court cites some out-of-state cases about wrongful discharge, it does so while interpreting a
statute’s wrongful discharge provision, not Maryland common law. 994 A.2d at 978–84. Indeed,
the Lark Court expressly stated that the case “present us with two questions of statutory
interpretation.” Id. at 969 (emphasis added). And the court’s relevant holding is “the report of
unlawful acts to an external board is not a condition precedent to a civil action under the Act.” Id.
at 970 (emphasis added). Finally, though the plaintiff in Lark had alleged a common law
wrongful discharge claim in the lower court, that claim was dismissed; and though the plaintiff
also briefed the issue for the Court of Appeals, it was merely as a request to “create a new public
policy exception to Maryland’s at-will employment doctrine,” which both the lower court and
Court of Appeals declined to do. 994 A.2d at 970. The Court will thus follow the Maryland
12 Court of Appeals’s lead and decline Dr. Lurie’s invitation to “create a public policy” for the
State of Maryland. Mot. to Alter or Amend J. 9. Nor will the Court expand the Maryland public
policies embodied in other statutes that Dr. Lurie previously cited. 4
2. Not Otherwise Vindicated by Civil Remedy
Even if Lark identified a preexisting, unambiguous announcement of Maryland public
policy that fit Dr. Lurie’s conduct and discharge, the only source of policy discussed in Lark is
the Health Care Worker Whistleblower Protection Act, which provides its own civil remedy.
Maryland’s common law wrongful discharge claim is reserved to vindicate public policies that
are not protected by other causes of action. 561 A.2d at 180. In this case, the Health Care Worker
Whistleblower Protection Act clearly declares: “Any employee who is subject to a personnel
action in violation of § 1-502 of this subtitle may institute a civil action.” Md. Code Ann., Health
Occ. § 1-504(a). There is thus no basis to support a common law claim for the same wrong.
In sum, despite Lark, Dr. Lurie has failed to produce any clear mandate of public policy
not otherwise vindicated by a civil remedy that supports his claim; thus, even if Maryland law
did apply, Lark would not rehabilitate this failure.
C. New Statutory Claim under the Health Care Worker Whistleblower
Protection Act
The decision in Lark does not justify allowing Dr. Lurie to use his Rule 59(e) motion to
bring a new, statutory, wrongful discharge claim under the Health Care Worker Whistleblower
Protection Act. Rather than point the Court to an applicable source of public policy to support his
claim, Dr. Lurie urges the Court to consider a new claim under Section 1-504(a) of the Health
4 In his Opposition to Defendant’s Motion for Summary Judgment, Dr. Lurie pointed to several other Maryland statutes purportedly announcing public policies that supported his common law wrongful discharge claim. This Court already held that the relationships between those public policies and Dr. Lurie’s conduct were “too attenuated to meet the stringent standard for recognizing public policy exceptions to the at-will employment doctrine.” 729 F. Supp. 2d at 327. This Court will not revisit that decision without any intervening controlling law.
13 Care Worker Whistleblower Protection Act—despite never having invoked the Act before—
because Lark is a change in the Maryland common law interpreting the Act. Reply Opp’n Mot.
Alter or Amend. J. 2, Sept. 30, 2010, ECF No. 92. The Act was enacted in 2002, so it was
available when Dr. Lurie sued in 2006, although he did not then invoke it. Unfortunately for Dr.
Lurie, “Rule 59(e) motions are aimed at reconsideration, not initial consideration.” District of
Columbia v. Doe, 611 F.3d 888, 898 (D.C. Cir. 2010) (quoting Nat’l Ecological Found. v.
Alexander, 496 F.3d 466, 477 (6th Cir. 2007)). The Court will not hear Dr. Lurie’s new statutory
claim for the first time via a Rule 59(e) motion.
Dr. Lurie warns that the public interest would be frustrated if health care providers are
free to discipline doctors without legal consequences for raising quality of care issues. This
simply isn’t the case here. Under Maryland law, the Maryland Health Care Worker
Whistleblower Protection Act is available, and Dr. Lurie simply failed to raise that claim when
he should have. And whether D.C. offers similar statutory protection is an issue for the D.C.
legislature. The Court will not take it upon itself to fashion its own remedy.
V. CONCLUSION
For the reasons stated herein, the Court will DENY plaintiff’s Motion to Alter or Amend
Judgment.
A separate Order consistent with this Memorandum Opinion shall issue this date.
Signed by Royce C. Lamberth, Chief Judge, on May 31, 2011.