Zafar, MD., PHd. v. Roger Williams Hosp.

Opinion

USCA1 Opinion

NOT FOR PUBLICATION

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1390

                             SYED M. ZAFAR, M.D., Ph.D.,

                                Plaintiff, Appellant,

                                          v.

                           ROGER WILLIAMS GENERAL HOSPITAL,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                    [Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Stahl, Circuit Judges,
                                       ______________

                     Aldrich and Campbell, Senior Circuit Judges.
                                           _____________________

                                 ____________________

            Bruce Hodge for appellant.
            ___________
            William P. Robinson III with whom Stephen M. Prignano and  Edwards
            _______________________           ___________________      _______
        and Angell were on brief for appellee.
        __________

                                 ____________________

                                   January 13, 1994
                                 ____________________

CAMPBELL,  Senior Circuit Judge.  Dr. Syed M. Zafar
                                 ____________________

            filed  suit  in  1990 alleging  that  Roger  Williams General

            Hospital ("the Hospital") had broken its contract with him by

            failing  to  provide  him with  a  medical  residency program

            approved  by the  Accreditation Council for  Graduate Medical

            Education  ("ACGME"), by failing  to certify to  the American

            Medical   Association  ("AMA")   that  he   had  successfully

            completed  a one-year  internship in  such a program,  and by

            failing to provide certain procedural rights due to him under

            the contract.    After  a  bench  trial,  the  United  States

            District Court for the District of Rhode Island found for the

            defendant Hospital.  Dr. Zafar appeals, and we affirm.

                                          I.
                                          I.

                      In  July 1983, the  Hospital and Dr.  Zafar entered

            into a written agreement whereby Dr. Zafar agreed to serve as

            a "rotating intern" for one  year, at the first  postgraduate

            year level.  Zafar agreed, inter alia, "to develop a personal
                                       _____ ____

            program  of   self  study  and   professional  growth,"   "to

            participate  in  safe,  effective and  compassionate  patient

            care," and "to adhere  to established practices,  procedures,

            and policies of the Hospital . . . ."

                      In  return,  the  Hospital agreed  to  provide:  "a

            suitable  environment for  medical  education experience";  a

            training program accredited  by the ACGME; and  "a mechanism,

            with  appropriate  due  process safeguards,  whereby  actions

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which  impact  upon  the   Resident's  status  and/or  career

            development may be addressed."

                      The agreement  stated  that the  parties  could  be

            released  from  their  "ethical  and  legal  obligations"  to

            fulfill  their responsibilities under the agreement if either

            of   two  conditions  occurred:    first,  if  the  "Resident

            Physician"  for  reason  of  illness  or  "other  good  cause

            acceptable  to the Hospital"  could not continue;  second, if

            "in the judgement of  those responsible for the  Program, the

            Resident Physician,  following timely notice  and opportunity

            to  be heard,  has failed  to perform  and discharge  his/her

            responsibilities in acceptable manner . . . ."  In the latter

            case,  the agreement would terminate "only after recourse, if

            so  desired by  the  Resident Physician,  to the  Due Process

            mechanism" earlier referred to in the agreement.

                      Although  this  agreement was  modeled on  the form

            contract  used for other resident physicians at the Hospital,

            the agreement with  Dr. Zafar  was altered  in several  ways.

            For example,  Dr. Zafar was  not to receive any  salary, life

            insurance,  disability  insurance,  or vacation.    Dr. Zafar

            agreed to  such limitations  apparently because  he had  been

            late in applying for internship positions, and had gained the

            position  at the  Hospital  only after  a  friend, Dr.  Naeem

            Saddiqui, helped him gain an entr e by introducing him to Dr.

            William Klutz, the  chairman of the Hospital's  Department of

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Surgery at the  time.  Dr. Zafar's situation  was unique also

            in that he  expected to be at the Hospital for only one year,

            instead of the usual three year period for most residents.

                      Soon after executing the agreement, Dr. Zafar began

            his  internship  at the  Hospital.    He  was placed  in  the

            internal medicine  program, which  at the  time was the  only

            ACGME-approved residency program  at the Hospital.   He began

            making  rounds with  the  other  residents  in  the  internal

            medicine program.

                      Shortly after Dr. Zafar began performing  duties as

            a medical  intern, his  supervisor, a  Dr. Burtt,  learned of

            several  highly  critical evaluations  of  Dr. Zafar's  work.

            After  some  investigation,  Dr.  Burtt  recommended  to  the

            assistant director of the residency program that Dr. Zafar be

            taken off  of medical service.   Dr. Burtt  also went to  Dr.

            Klutz, as he had been responsible for bringing Dr. Zafar into

            the  program.   Dr.  Burtt  explained to  Dr.  Klutz that  he

            believed Dr. Zafar was not competent to serve in the internal

            medicine  program and that the Hospital would have difficulty

            graduating him from the program.  He suggested that Dr. Zafar

            be rotated to the department  of surgery for the remainder of

            the year.

                      According to Dr. Klutz's contemporaneous notes,  he

            met with Dr. Zafar  on October 7, 1983.   Dr. Klutz  informed

            Dr. Zafar that  he had received an  unsatisfactory evaluation

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and stated that Dr. Zafar had the option of either seeking an

            appointment to another hospital or moving into the department

            of  surgery.   According to  Dr.  Klutz, Dr.  Zafar chose  to

            transfer  to surgery  within  a  few days  of  the October  7

            meeting.

                      At trial, Dr.  Zafar testified that he did not meet

            with Dr.  Klutz in  October, 1983, and  that Dr.  Klutz never

            told  him of any  poor performance evaluations  nor discussed

            with him the possibility of  leaving the Hospital.  Dr. Zafar

            testified  that  Dr.  Klutz  did  inform  him  he  was  being

            transferred to the department of  surgery, but had offered no

            explanation for the  transfer.    Moreover, according to  Dr.

            Zafar, Dr. Klutz did not  notify him of his imminent transfer

            until late November, 1983.    Dr. Zafar  also testified  that

            in late November he received a copy of a memo from a Dr. Vito

            in the  department  of surgery  that  was addressed  to  head

            nurses and operating room personnel.  The memo explained that

            Dr. Zafar would begin "covering" the surgical patients of Dr.

            Vito and three other physicians, and would be responsible for

            making  daily rounds on those patients and "entering progress

            notes and writing  orders as necessary."  Dr.  Zafar was also

            to  be  "available  to answer  questions  concerning  patient

            management."

                      Dr.  Zafar  admitted  to  having  known   that  the

            Hospital  did not have an ACGME-approved residency program in

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surgery.  Nevertheless,  Dr. Zafar never inquired  whether he

            would receive credit nor did he invoke the due process rights

            mentioned  in the  contract.   He  finished the  year in  the

            department of surgery and thereafter left the hospital. 

                      Subsequent  to his  departure, Dr. Zafar  began the

            process of applying for medical  licensure in New Jersey.  In

            July of  1984, the  Hospital sent to  the New  Jersey medical

            licensing  authority a certificate stating that Dr. Zafar had

            successfully completed a one-year "mixed internship" approved

            by the AMA.  Sometime during 1989, however, Dr. Zafar learned

            that  AMA records  did not  show him  as having  completed an

            approved  program at the Hospital.  After some correspondence

            with the Hospital, Dr. Zafar filed suit in 1990 alleging that

            the Hospital had breached the July 1983 agreement  by failing

            to certify to  the AMA that he had  successfully completed an

            approved medical internship.

                      The case was tried  without a jury in February  and

            March, 1993.  After the plaintiff's  case, the district court

            found  that  Dr.   Zafar  did  not  complete   an  accredited

            internship  and  was  therefore  not  entitled  to  have  the

            Hospital certify that he did.   The district court found that

            the  Hospital's   own  representations  in  the   New  Jersey

            certificate  had been in error and  that it was "unfortunate"

            that the certificate had been sent.

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The district court went on to hear more evidence on

            the issue  of whether  Dr. Zafar was  denied the  due process

            rights guaranteed him under the contract.  After hearing  all

            the evidence,  the district  court found  that Dr.  Zafar had

            received  actual notice of his poor  performance, that he had

            the  opportunity  to pursue  the  matter and  to  contest the

            allegations if he had so  chosen, and that he had  chosen not

            to do  so.   The court  concluded that  the Hospital  had not

            violated any terms of the contract with Dr. Zafar.

                      We affirm.

                                         II.
                                         II.

                      On appeal, Dr.  Zafar no longer  argues that he  is

            entitled to  have the Hospital  certify that he  completed an

            ACGME-approved internship.  He argues that the Hospital broke

            its agreement  with him by  failing in the first  instance to

            provide  an  approved  program, or,  in  the  alternative, by

            failing to  afford due process before transferring him out of

            the  internal medicine residency, which was the sole approved

            program.

                      Dr. Zafar's first argument, that the Hospital broke

            the agreement  by failing  to provide  an approved  residency

            program, is undercut  by Dr. Zafar's concession  that when he

            began his  internship at the  Hospital he was in  an approved
            _____

            program.  He  seeks to counteract this by  asserting that the

            Hospital  had enrolled  him in  a  unique one-year  "rotating

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internship"  that began  in an  approved  program (i.e.,  the
                                                               ____

            internal medicine internship) but that required him to rotate

            among  various unaccredited  departments, including  surgery.

            He  argues that  this  "rotating  internship"  would  not  be

            accredited,  and that the  Hospital, therefore, was  from the

            start in  breach of  its agreement  to furnish an  accredited

            program.

                      Dr. Zafar's argument is essentially factual and was

            resolved against  him by the  district court.  We  cannot say

            the court committed clear error in not finding that Dr. Zafar

            had been enrolled  in some new, hybrid program  for which AMA

            credit was unavailable even had he successfully completed it.

            To be sure, both Dr. Klutz and Dr. Calabresi, the chairman of

            the  Department of Medicine  at the Hospital  during 1983-84,

            testified that they had expected Dr. Zafar to rotate to other

            specialties during  his  time at  the  Hospital.   There  was

            substantial  evidence, however,  that  rotation was  possible

            within  the approved internal medicine program and could have

            been  accomplished while receiving full credit.  According to

            the Policies and Procedures of the American Board of Internal

            Medicine,  which were admitted  as evidence at  trial, twelve

            months of credit  can be received for  the first postgraduate

            year of training  if the resident spends at  least six months

            in   internal  medicine  and  an  additional  two  months  in

            pediatrics,  dermatology,  neurology, and/or  emergency  room

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care.   The  remaining four  months can  be spent  in another

            specialty, such as  surgery.  This, apparently,  explains the

            use of  the term "rotating  intern"    in fact,  according to

            the Policies and  Procedures, the first year  of postgraduate

            training  in  internal   medicine  was  called   a  "rotating

            internship."   Both Dr. Calabresi  and Dr. Klutz testified to

            an accredited "rotating" program of this type.

                      The  district  court  found   that  Dr.  Zafar  was

            switched to the unaccredited program only when his supervisor

            in the approved internal medicine program determined that his

            work was so  unsatisfactory that he should not  be allowed to

            continue  in it.   Dr.  Zafar  was thus  forced to  leave the

            critical internal  medicine component  short of the  required

            six months minimum necessary to receive credit, and without a

            satisfactory record.  This was allowed by the contract, which

            expressly authorized the Hospital to drop Dr.  Zafar from the

            accredited program  if he  "failed to  perform and  discharge

            his[] responsibilities  in an acceptable  manner"    assuming

            proper  notice and opportunity  to be heard,  and recourse to

            the  due  process mechanism  if  so  requested, infra.    The
                                                            _____

            district  court was justified in finding, therefore, that the

            Hospital was not in breach of its contract from the start for

            failure ever to have offered an accredited program.

                      Dr.  Zafar's second argument  is that  the Hospital

            violated the  agreement by  denying him  his contractual  due

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process  rights at  the time  he was  transferred out  of the

            approved  program.    He  argues that  the  Hospital  had  no

            "mechanism,"  as required by the contract, to redress actions

            that would  affect the residents'  careers.  Also,  Dr. Zafar

            suggests  that the Hospital broke the  contract by failing to

            provide  him with adequate  notice of his  subpar performance

            and  of the  fact that the  shift to surgery  would result in

            critical alterations in his intended career development.

                      The  district  court  considered  these points  and

            rejected them.  The court found  as a fact that a  "mechanism

            was  in place"  for Dr.  Zafar  to exercise  his due  process

            rights.   This mechanism was outlined in  a document entitled

            "Due  Process  For  Resident Physicians,"  which  Dr. Zafar's

            counsel  introduced  at  trial  and  quoted  in  his  closing

            argument.  This document specifically refers to the provision

            in the  generic contract  used for  resident physicians  (and

            used  in  modified   form  for  Dr.  Zafar)   containing  the

            requirement for providing a mechanism for due process.  We do

            not  think it  was  clear  error for  the  district court  to

            conclude that such a mechanism existed.

                      The  Hospital  was  not  required,  however,  as  a

            condition to dropping Dr. Zafar from the approved program, to

            automatically engage  the elaborate  due process  protections

            spelled out in "Due Process For Resident Physicians."  By the

            terms  of the agreement, the due process "mechanism" required

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by the agreement  to "address" actions taken by  the Hospital

            would  came  into  play  only if  "desired  by  the  Resident

            Physician."   Dr. Zafar  never announced such  a desire.   He

            admitted  at trial  that he  knew he  had due  process rights

            available to him under the contract but that he never invoked

            those rights.

                      Since  Dr.  Zafar  never invoked  the  due  process

            mechanism  mentioned in the contract, his argument is limited

            to the contention that he  did not receive the "timely notice

            and opportunity  to be  heard" that under  the contract  must

            precede  a determination by those responsible for the program

            that  he failed  to perform acceptably.   The  district court

            heard extensive  testimony on this  point and found  that the

            Hospital had satisfied its duties under this clause. 

                      This might have  been a close  issue on the  facts.

            None of the  doctors at the Hospital, including  Dr. Klutz or

            Dr.  Calabresi, testified to having told Dr. Zafar explicitly
                                                               __________

            that upon his early transfer  to surgery he would not receive

            credit for completing  an ACGME-certified internship.   To be

            sure, Dr.  Zafar admitted that  he knew the Hospital  did not

            have  an accredited  residency  program  in  surgery.    This

            admission  was  perhaps  not damning  to  his  case, however,

            because there was evidence, supra, that Dr. Zafar  might have
                                        _____

            rotated to surgery  at some later point within the accredited

            "rotating  internship" for  which  he originally  contracted.

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Arguably,  Dr. Zafar misunderstood the import of his enforced

            transfer to surgery and underestimated the seriousness of his

            situation.  

                      Nonetheless, the  contract did not  require written

            notice,  and the  district  court found  that  Dr. Zafar  had

            orally received  "actual notice"  of his  predicament at  the

            October 7,  1983, meeting with Dr.  Klutz.  As  a result, the

            court  found  that  Dr.  Zafar  was  properly  "charged  with

            knowledge" of his situation, and that  "he had an opportunity

            for discussion and  for hearing to contest  those allegations

            if  he  wanted to  pursue that  matter, and  he chose  not to

            pursue   that  avenue."    These  findings  are  sufficiently

            supported by the evidence.  Dr. Zafar admitted that there had

            been questions about his performance, and Dr. Klutz testified

            that   he   told   Dr.  Zafar   his   evaluations   had  been

            unsatisfactory and that he believed  that Dr. Zafar knew  the

            seriousness of his situation.   Dr. Zafar also stopped  doing

            rounds with the  residents in the approved  medicine program.

            Moreover, Dr. Zafar  received the memo from Dr.  Vito that he

            would be transferring to surgery,  when he had expected to be

            in internal  medicine for at  least six months and  knew that

            surgery was not accredited.

                      It  is  significant  that  Dr.  Zafar's   testimony

            directly contradicted that of Dr. Klutz, leaving the court   

            upon  believing Dr. Klutz    with understandable doubts about

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Dr.  Zafar's credibility  generally.    The district  court's

            findings rested, in  significant part,  on determinations  of

            the credibility  of the witnesses, for which  we are required

            to give "due regard."  Fed. R. Civ. P. 52(a).   In discussing

            the crucial October 7 meeting between Dr. Zafar and Dr. Klutz

            (which Dr.  Zafar essentially  denied ever  took place),  the

            district  court stated: "Doctor  Klutz has his  notes of that

            meeting and  I believe his  testimony as to what  occurred at

            that meeting."  The court said that it was

                      satisfied  that  Doctor Klutz's  testimony  is
                      accurate  and at  that meeting  on October  7,
                      1983, Doctor  Klutz told the  plaintiff of his
                      unsatisfactory  evaluation in  the same  terms
                      that Doctor Burtt had related to Doctor Klutz,
                      and that  he told him  of the options     that
                      the  plaintiff, at that  point, was not  to be
                      kept  in the accredited program and he had two
                      choices.   He  could  seek  an appointment  to
                      another  Hospital  or  he could  go  on  to an
                      internship   in   surgery    which,   by   the
                      plaintiff's  own testimony, he knew was not an
                      accredited program.

            The  district court  also stated  that it was  convinced that

            "Dr. Klutz told [Dr. Zafar]  that he ought to talk  to Doctor

            Burtt" about  his negative  evaluations, but  that Dr.  Zafar

            never did so.

                      The judge contrasted the believability of Dr. Klutz

            with that of Dr. Zafar:

                      It's obvious what the plaintiff was doing
                      here   during   his  testimony   at   the
                      beginning of this case.  He was trying to
                      convince the Court that he was blissfully
                      ignorant of what was going on around  him
                      at the time; that  he didn't realize that

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those  in the  internal medicine  program
                      were dissatisfied with his performance to
                      the point  of  expelling  him  from  that
                      program. . . .    The   attempt   of  the
                      plaintiff to portray this ignorance . . .
                      is disingenuous, and that's as polite  as
                      I can make it.

                      Based  on  these   credibility  determinations  and

            factual findings, the district court concluded that Dr. Zafar

            had  received actual notice  and had received  an opportunity

            for discussion  of his performance.   This resolution  of the

            evidence is not clearly erroneous.   See Anderson v. Bessemer
                                                 ___ ________    ________

            City, 470 U.S. 564, 574 (1985).
            ____

                      Dr.  Zafar also argues cursorily that he was denied

            constitutional  due process rights.  The district court found

            that the due process mechanism in the contract did not import

            constitutional  standards.  Especially as the Hospital is not

            a  state  actor, we  accept  that  conclusion.    See,  e.g.,
                                                              ___   ____

            National  Collegiate  Athletic Ass'n  v. Tarkanian,  488 U.S.
            ____________________________________     _________

            177, 191 (1988).

                      Affirmed.  Costs to appellee.
                      ________   _________________

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