Circuit Court for Baltimore City Case No. 24-C-15-002959
Wright, Arthur, Albright, Anne K. (Specially Assigned), JJ.
case, a physician brought an action seeking damages resulting
from her academic dismissal from an orthopaedic surgery
residency program at the Johns Hopkins University School of
Medicine. After extensive discovery and briefing, the Circuit
Court for Baltimore City entered summary judgment against the
physician on all of her claims. We affirm, primarily because
of the principle that courts must defer to good-faith
academic decisions concerning promotion and dismissal.
and Procedural Background
Barkha Gurbani, M.D., makes allegations that concern multiple
years of her graduate medical education. In connection with
the summary judgment motion, the parties submitted
transcripts from dozens of depositions, as well as a deluge
of evaluations, memos, and emails relating to the residency.
Gurbani seeks to prove that she was improperly dismissed
because the program failed to live up to its end of the
residency contracts or because of deliberate actions by two
faculty members and the program director. The defendants
assert that Dr. Gurbani failed to advance because of her
numerous, well-documented deficiencies as a surgical
resident, and they contend that the decisions of the
University faculty should not be second-guessed through a
main principles guide our examination of this voluminous
record. In an appeal from the grant of a defendant's
motion for summary judgment, we review the facts and all
inferences drawn from those facts in the light most favorable
to the plaintiff. See, e.g., Jackson v. Dackman
Co., 422 Md. 357, 370 (2011). The inferences drawn in
favor of the plaintiff, however, "must be
reasonable ones." Clea v. Mayor & City
Council of Baltimore, 312 Md. 662, 678 (1988) (emphasis
in original). Furthermore, a dispute of fact, in itself, will
not prevent the entry of summary judgment; rather a court is
precluded from entering summary judgment only when the record
reveals a genuine dispute of a material fact.
See, e.g., Castruccio v. Estate of
Castruccio, 456 Md. 1, 34 (2017).
Dr. Gurbani's Path to the Residency Program at Johns
Gurbani earned a bachelor's degree from Johns Hopkins
University in 2004 and a medical degree from the University
of California, Los Angeles, in 2009. During her fourth year
of medical school, she took an elective course in the
pediatric orthopaedics department at Johns Hopkins. At that
time, the Johns Hopkins faculty rated her performance as
"outstanding" in all categories. Because Dr.
Gurbani aspired to become an orthopaedic surgeon, she pursued
a residency in that field.
residency is a form of education structured so that a medical
school graduate can develop into an independent practitioner
in a particular specialty. See Accreditation Council
for Graduate Medical Education (ACGME), Glossary of Terms, at
5, 8 (2013),
Residencies in orthopaedic surgery last for five years. ACGME
Program Requirements for Graduate Medical Education in
Orthopaedic Surgery, at 1 (2017),
The first-year curriculum focuses on basic surgical skills,
and the curriculum for the remaining four years is more
specialized in orthopaedics. Id. at 16-17.
medical residency is a "physically, emotionally, and
intellectually demanding" experience which
"requires longitudinally-concentrated efforts on the
part of the resident." Id. at 1. Residents
develop through a combination of "didactic" and
"clinical" experiences. Id. at 3. In
regular didactic sessions, residents receive formal
instruction to increase their knowledge and understanding of
medicine. Id. at 11. Most of a resident's
education occurs in the clinical setting, "within the
context of the health care delivery system."
Id. at 1. The resident participates directly in
patient care under the guidance and supervision of the
attending physicians on the program faculty. Id.
Over time, as the resident demonstrates growth, the attending
physicians delegate to the resident a progressively larger
share of the responsibility for patient care. Id. at
28. The faculty members also evaluate the resident's
progress and advise the program director on decisions such as
the promotion, remediation, or dismissal of a resident.
Id. at 20.
2009, Dr. Gurbani started a residency in orthopaedic surgery
at the University of Pennsylvania. She was placed on
probation at the end of her first postgraduate year. She was
reinstated as a resident in good standing as of November
2010, at which point she left that program. In a letter
protesting the probation, she acknowledged that "the
decision to place [her] on probation was based on [her]
performance for [her] entire" first postgraduate year.
In the present litigation, Dr. Gurbani seeks to characterize
that probation as "nonacademic."
Dawn LaPorte, director of the orthopaedic surgery residency
program at Johns Hopkins University School of Medicine, spoke
with Dr. Gurbani while she was serving out her probation. The
University of Pennsylvania disclosed in writing that,
although Dr. Gurbani had satisfied the requirements of the
first year of her residency, she had been subject to
"disciplinary action in the form of probation[.]"
Although Dr. LaPorte knew about the probation, she invited
Dr. Gurbani to transfer to Johns Hopkins.
with the transfer, Dr. Gurbani registered with the Maryland
Board of Physicians as an unlicensed practitioner. On her
application, she answered "No" to a question that
asked whether she had ever been "placed on probation . .
. while in a postgraduate residency training program[.]"
Dr. Gurbani claims that Dr. LaPorte had advised her that she
should not disclose her previous probation to the Board of
Physicians. Dr. LaPorte denies that she ever advised Dr.
Gurbani in that way. When Dr. Gurbani renewed her
registration in the following year (without consulting with
Dr. LaPorte), she again represented to the Board of
Physicians that she had never been on probation during a
The Initial Resident Contract: July 2011 through June
1, 2011, Dr. Gurbani entered into a one-year contract with
Johns Hopkins University through its School of Medicine.
Under the contract, she was appointed as a second-year
postgraduate resident in the five-year program in orthopaedic
surgery. The contract required her to provide clinical
services at Johns Hopkins medical facilities in exchange for
a stipend, liability insurance, and other benefits.
residency contract covered both employment and educational
services. It required Dr. Gurbani to "[f]ulfill the
educational requirements of the Program." It required
the University to provide "appropriate and adequate
faculty and Medical Staff supervision for all educational and
clinical activities." It stated that the program
director and faculty would "[e]valuate" Dr.
Gurbani's "educational and professional progress and
achievement . . . on a regular and periodic basis."
contract authorized the program director, Dr. LaPorte, to
take "corrective action" under the University's
general policy for probation, suspension, and termination if
she deemed Dr. Gurbani's performance to be deficient. It
required the University to "[p]rovide a mechanism to
fairly deal with academic or disciplinary actions"
through the University's general grievance policy. The
contract included a list of references to those written
policies, which were available to Dr. Gurbani through the
University expressly disclaimed any commitment to promote Dr.
Gurbani at the end of the one-year term. The contract stated:
"Reappointment and/or promotion to the next level of
training is in the sole discretion of the Program Director
and is expressly contingent on several factors, including . .
. satisfactory completion of all training components, [and]
satisfactory performance evaluations[.]" The contract
required the University to give written notice at least four
months before the end of the term in the event that it might
decline to renew the appointment. But if the "primary
reason" for the nonrenewal occurred within those last
four months, the contract required written notice as far in
advance "as the circumstances w[ould] reasonably
contract stated that, although the parties anticipated that
the appointment would continue for the one-year term, the
University could terminate the contract at any time on the
grounds specified in the contract. The contract identified a
resident's failure to satisfy educational or professional
responsibilities as a ground for termination. The contract
permitted Dr. Gurbani to pursue a grievance with the
University in the event of non-renewal of her appointment or
termination from the program.
Assessments from Dr. Gurbani's First Three
in July 2011, Dr. Gurbani progressed through a series of
rotations focusing on different aspects of orthopaedic
medicine at Johns Hopkins. Each rotation lasted for about 10
weeks. Her first rotation was at the Bayview Medical Center,
her second was on the Hopkins spine service, and her third
was in sports medicine.
of the program faculty completed formal evaluations. On
mid-rotation evaluations, faculty members used a scale of 1
to 3 to assess whether a resident was meeting expectations in
different areas. On end-rotation evaluations, faculty members
used a scale of 1 to 5 to assess how often a resident
achieved different standards. Other medical professionals who
worked with Dr. Gurbani also submitted evaluations in which
they rated her performance from poor to excellent in various
categories. All types of evaluations included a space for
written comments. Once a formal evaluation was submitted, Dr.
Gurbani had access to the scores and the comments.
early evaluations, faculty members commented that Dr. Gurbani
needed to improve "her surgical skills" and that
she needed to "continue to read to increase [her] fund
of knowledge." Overall, however, the faculty praised her
performance from the first two rotations and noted that she
was working hard to improve.
faculty members did not always submit their evaluations
promptly. For instance, one faculty member submitted a highly
positive evaluation of Dr. Gurbani's performance on the
Hopkins spine service over five months after that rotation
Dr. Gurbani scored in the 38th percentile among second-year
postgraduate students on the Orthopaedic In-Training
Examination (OITE), a standardized assessment of a
resident's knowledge of orthopaedics. By all accounts,
her score was adequate relative to other residents in the
the academic year, the attending physicians regularly
discussed Dr. Gurbani's performance at faculty meetings.
Dr. LaPorte documented those meetings by taking notes that
her assistant would later transcribe into a separate
electronic document for each meeting. In those memos, Dr.
LaPorte recorded the various concerns that faculty members
expressed about Dr. Gurbani's progress. For instance, the
memo from a September 2011 meeting states that one doctor had
raised "concerns regarding professionalism and effective
communication" in her care of pediatric patients. The
memo from an October 2011 meeting states that one doctor
described her as "behind the curve, " another
commented that she "need[ed] to work on" her
surgical skills, and another observed that she would
"get overwhelmed very quickly" and had
"difficulty with simple tasks, " such as applying
appeal, Dr. Gurbani relies on those memos to establish
certain facts, but she also appears to contend that the
criticisms from these memos should be discounted. She accuses
University officials of fabricating the faculty comments long
after they decided to dismiss her, but she points to nothing
in the record that would support her
accusation.In any event, other unchallenged testimony
shows that multiple faculty members voiced increasing
concerns throughout the academic year. In the words of one
faculty member, "as the responsibilities and
expectations increased, . . . there were greater concerns
expressed that she wasn't meeting expectations."
Gurbani began to encounter more serious difficulty after she
advanced to the sports medicine rotation in November 2011. In
his mid-rotation evaluation, Dr. Andrew Cosgarea determined
that Dr. Gurbani was not meeting expectations for basic
knowledge of the rotation, critical thinking, and surgical
skills. Dr. Cosgarea commented that she needed "to be
better prepared in the operating room by reading about the
surgical procedures and reviewing anatomy." In his
end-rotation evaluation, he commented that, even though he
had advised her about ways to improve, he still considered
"her surgical skills and understanding of anatomy to be
below average." Dr. Cosgarea gave her a score of 2 out
of 5 in the "Technically Competent" category,
meaning that he observed that she was "technically
competent to perform surgical procedures consistent with
[her] level of training" about 20 percent to 39 percent
of the time.
The Semiannual Evaluation Meeting: January 26, 2012
contract specified that the program director would
"present to and discuss with the Resident a written
summary of the evaluations at least once during each six
month period of training[.]" Dr. LaPorte met with Dr.
Gurbani for their semiannual evaluation meeting on January
26, 2012, shortly before the end of the sports medicine
to Dr. LaPorte, their conversation was "based on all of
[the] written evaluations, " which she "had in
front of [her]" during the meeting. Dr. LaPorte prepared
a memo titled "Resident Semi-Annual Evaluation, "
which included quotations from those evaluations. In her
memo, Dr. LaPorte wrote that she informed Dr. Gurbani about
concerns that faculty members had expressed about her
"technical skills and a lack of progression in the
operating room." Dr. LaPorte wrote that they
"discussed the critical importance of making a true
effort to improve her technical skills as well as her comfort
in the operating room and her knowledge base and to work on
increasing her confidence with good board presentations and
ability to make decisions as appropriate."
Gurbani did not receive a copy of that memo. She denies that
Dr. LaPorte expressed any concern about her progress or
discussed any need for improvement. According to Dr. Gurbani,
Dr. LaPorte told her that she was "in the middle of
[her] class" based on her exam score, that she was
"meeting all the core competencies, " and that her
performance was "completely acceptable" for her
level of training. Dr. Gurbani claims that Dr. LaPorte
specifically told her "not to worry" about her low
scores in the sports medicine rotation because "Dr.
Cosgarea had been known as a harsh evaluator."
Evaluations from the Pediatric Orthopaedics Rotation
February 2012, Dr. Gurbani advanced to the pediatric
orthopaedics rotation. The head of that division, Dr. Paul
Sponseller, determined on his mid-rotation evaluation that
Dr. Gurbani was meeting expectations, but he commented that
she had "some challenges in prioritizing her work"
and that "her motor skills [we]re not yet
intuitive." In his end-rotation evaluation, Dr.
Sponseller commented that Dr. Gurbani still needed "to
develop more confidence in her own decisions and skills,
" but that she had "made progress" in that
direction. Dr. Sponseller observed that she was capable of
adequate preoperative planning and technically competent in
surgical procedures about 40 percent to 79 percent of the
time. At his deposition, Dr. Sponseller explained that his
evaluation did not mean that she had failed the rotation
outright, but that her scores in those categories were
"cause for concern."
other faculty members, Dr. John Tis and Dr. Michael Ain, had
less favorable impressions of Dr. Gurbani's performance
on the pediatric orthopaedics rotation. They submitted their
formal evaluations within the academic year, but several
weeks after the rotation ended in mid-April 2012. Dr. Tis
submitted a "mid-rotation" evaluation on May 11,
2012, in which he stated that Dr. Gurbani's critical
thinking and documentation skills did not meet expectations.
Dr. Tis commented that Dr. Gurbani had "[d]ocumented
incorrect exam results" and that she needed "to
slow down and concentrate on what she is
doing." In a final evaluation, submitted in June
2012, Dr. Tis gave her scores of 2 out of 5 or below in seven
submitted two evaluations in early June 2012. His
"mid-rotation" evaluation stated that Dr. Gurbani
was not meeting expectations in any area. He commented that
she needed to improve her "responsibility, "
"basic knowledge, " "operative ability, "
and "following up." In his end-rotation evaluation,
he gave Dr. Gurbani scores of 1, 2, or 3 out of 5 in every
category. He commented that he had "talked to her on
several occasions about the care that she gives" and
that he had "offered suggestions, " but Dr. Gurbani
showed "no signs of improvement" and failed even to
"recognize that she gives truly poor care."
memo from May 4, 2012, Dr. LaPorte recorded that, when she
told Dr. Gurbani that the pediatric orthopaedics faculty
voiced concern "that she would frequently miss important
points in patient evaluation and patient care, " Dr.
Gurbani responded by claiming that "much of th[o]se
issues were 'misunderstandings' and that it 'was
not truly her fault.'" The memo also states that Dr.
Gurbani complained that she "did not feel that it was
appropriate for Dr. Ain to evaluate her" because she had
worked with him only "occasionally on call." Dr.
Gurbani now maintains that she "actually never
worked" with Dr. Ain and that he evaluated her
performance on the rotation "without ever directly
observing" her. She has not disputed that Dr. Tis
Orthopaedic Trauma Rotation with Dr. Osgood and Dr.
mid-April 2012, Dr. Gurbani had moved on to the orthopaedic
trauma service for the final rotation of the academic year.
She worked primarily with Dr. Greg Osgood and with Dr. Erik
Hasenboehler, the two faculty members whom she would later
name as defendants in her lawsuit (alongside the program
director, Dr. LaPorte).
around early May of 2012, Dr. Gurbani complained orally to
Dr. LaPorte about the way she was being treated on the trauma
rotation. Dr. Gurbani claims that she reported several
instances of sexist or inappropriate behavior by the two
attending physicians. Dr. Gurbani does not remember exactly
when she made particular reports, except to say that she
started complaining "very early" in the rotation
and then continued to make "many, many" complaints
throughout the rotation.
Gurbani says that Dr. Osgood displayed a calendar in the
operating room that featured the musical artist Taylor Swift
in "provocative" poses. Dr. Gurbani says that some
music that Dr. Osgood played in the operating room was
"obscene" because the lyrics "basically
allud[ed] to oral sex." Dr. Gurbani says that Dr. Osgood
repeatedly made innuendo while discussing procedures
involving male genitalia.
Gurbani says that, once while she was present in a clinic,
Dr. Hasenboehler passed around a phone to other residents to
show them photos of himself "taking body shots" off
of a female "stripper" at his birthday party. Dr.
Gurbani also says that Dr. Hasenboehler called her "a
girl" and told her that she "had to work 350 times
harder because [she] was a female." Although female
colleagues sometimes told her that she would need "to
work twice as hard to be considered half as smart in [a] male
dominated field[, ]" Dr. Gurbani felt that Dr.
Hasenboehler's comment was inappropriate in light of his
Dr. LaPorte's memos and a "timeline" produced
by Dr. Gurbani, show that their first meeting during the
rotation occurred on May 4, 2012. Dr. LaPorte's memo
states that, "[p]rior to [the] meeting, " she had
already "spoken with Dr. Osgood and Dr. Hasenboehler,
both of whom had some concerns regarding [Dr. Gurbani's]
ability to evaluate patients and make decisions." The
memo mentions that Dr. Gurbani complained about Dr. Ain's
evaluations and about her conflicts with the senior resident
from the orthopaedic trauma service, but it does not mention
that Dr. Gurbani complained about either of the two attending
to Dr. LaPorte's testimony, Dr. Gurbani did not report
instances of "misconduct" at the meeting on May 4,
2012, but she expressed a more general belief that she was
being treated "unfairly" or "differently"
from other residents. Dr. LaPorte says that she investigated
the situation by speaking to the senior resident, who opined
that Dr. Gurbani was being treated like any other junior
resident. Dr. LaPorte says that she also sought more
information from Dr. Osgood, who explained that he had been
limiting Dr. Gurbani's time in the operating room so that
she could focus on improving her basic knowledge of patients
to Dr. Osgood's testimony, he was not aware during the
rotation that Dr. Gurbani had made allegations about
mistreatment. Similarly, there is no evidence indicating that
Dr. Hasenboehler was made aware of complaints against him at
point during the rotation, an operating room nurse
independently reported to Dr. LaPorte that "Dr. Gurbani
had a rough day in the OR and the trauma faculty were tough
on her." Dr. LaPorte says that, in response, she
"tried to reassure [Dr. Gurbani] and tell her to hang in
there." Around this time, other colleagues reported that
Dr. Osgood would have occasional outbursts of anger in the
operating room. Those reports prompted the chair of the
orthopaedic surgery department to warn Dr. Osgood in the
summer of 2012 that he needed to improve his self-control.
The Decision to Place Dr. Gurbani on Academic
faculty met on May 24, 2012, to evaluate Dr. Gurbani's
progress as she approached the end of the academic year. The
memo for that meeting states that eight doctors expressed
concerns about Dr. Gurbani's performance: Dr. Osgood
noted that she "frequently w[ould] miss a
diagnosis" and did not "see the gravity of missing
important points in patient care, " and he had not
observed "any improvement" after he tried to give
her time to "focus on the basics" outside the
operating room; Dr. Hasenboehler, Dr. Ain, and Dr. Cosgarea
each expressed doubts about whether she could complete the
residency program; two other doctors expressed disappointment
with her contributions to a research proposal; another doctor
reported instances of her poor communication in the pediatric
emergency department; and another doctor reported that she
had missed a diagnosis of "pediatric compartment
syndrome." Dr. LaPorte concluded: "If she does
not wish to consider changing specialties and does not show
improvement during the trauma rotation, I will likely need to
put her on probation."
week later, Dr. LaPorte informed Dr. Gurbani that the faculty
had serious concerns about her future in the program and
asked her to consider another specialty. At their next
meeting, another week later, Dr. LaPorte presented two
options. The first option was to resign, which Dr. Gurbani
refused to do. The second option was to repeat another year
at the second-year postgraduate level, beginning with a
four-month probation period, after which the faculty would
decide whether she could continue in the program. In her
memo, Dr. LaPorte wrote: "She does understand that when
she leaves the office today I will be officially putting her
Gurbani claims that, during that meeting, she requested an
"appeal or some type of formal grievance" regarding
her probation. Dr. LaPorte told Dr. Gurbani that she
could seek an "informal appeal" by asking the
attending physicians to reconsider their evaluations. Dr.
Gurbani says that she "tried to reach" Dr. Osgood
and Dr. Hasenboehler, but that they did not respond.
process, Dr. Gurbani communicated with Dr. Tis, who had given
her poor evaluations from the earlier rotation in pediatric
orthopaedics. Dr. Tis emailed Dr. LaPorte to explain that he
had an "extensive discussion" with Dr. Gurbani
about "her lack of progression in the program." Dr.
Tis wrote that she "seems to have some difficulty
realizing what her shortcomings are, specifically difficulty
applying basic knowledge to clinical situations such as
assessment of the patient, initiation of basic orthopaedic
care in the [emergency department], and communication of this
assessment with her seniors." Although Dr. Gurbani
received a copy of the email, she claims that Dr. Tis never
spoke with her about any of her shortcomings.
LaPorte informed Dr. Gurbani that she could challenge the
probation decision through Dr. Julia McMillan, the associate
dean of graduate medical education. According to Dr. Gurbani,
Dr. McMillan told her "that [Dr. Gurbani's]
department was refusing [her] the ability to appeal" the
14, 2012, Dr. Gurbani learned that Dr. LaPorte had announced
in front of the entire residency class that she had been
placed on academic probation. Dr. Gurbani asserts that this
announcement violated the University's records-retention
policy, which states that a resident's "Evaluative
File is confidential and will be kept in a secure
Gurbani completed the final weeks of the orthopaedic trauma
rotation, Dr. Osgood had not yet submitted either of his
written evaluations. On or after June 15, 2012, Dr. Osgood
asked Dr. Gurbani to meet him at a bar for an evaluation
meeting. Dr. Gurbani did not agree to do so. She told Dr.
LaPorte that Dr. Osgood's suggestion made her feel
27, 2012, Dr. Gurbani received a letter from Dr. LaPorte
outlining the "guidelines and expectations" for her
probation. The letter informed Dr. Gurbani that she would
spend another two months on the pediatric orthopaedic
service, followed by another two months on the orthopaedic
trauma service. The letter stated that she would meet every
week for "formal verbal feedback" from at least one
attending physician, that she would confer with Dr. LaPorte
every two weeks, and that she would receive "written
feedback" every two to four weeks. A five-member
committee (Dr. LaPorte; Dr. Sponseller and Dr. Ain from
pediatric orthopaedics; Dr. Osgood from orthopaedic trauma;
and another attending physician from a previous rotation)
would evaluate her progress after two months. After the full
four months, the committee would decide whether to promote
her, to allow her to continue at the second-year postgraduate
level, or to dismiss her from the program. The letter
included an extensive list of deficiencies and performance
1, 2012, Dr. Gurbani signed a new residency contract under
which she was reappointed at the second-year postgraduate
level, but not promoted to the third-year level. The contract
stated that it would be in effect for a maximum of 12 months,
expiring at the end of June 2013. The terms generally were
similar to those of the first contract, although some terms
and policy documents had been updated.
Probation and the Committee's Decision to Dismiss Dr.
Gurbani repeated the pediatric orthopaedics rotation in July
and August of 2012. On his evaluations, Dr. Sponseller
reported improvement in some areas, but continued to identify
weaknesses in her technical surgical skills, particularly her
motor skills. Dr. Ain submitted an evaluation that, while
more favorable than his previous ones, reflected that Dr.
Gurbani continued to fall below his expectations for critical
thinking and patient presentation skills.
this rotation, Dr. Sponseller reported that Dr. Gurbani
caused a "dural tear" in what should have been
a "routine" procedure. At his deposition, Dr.
Sponseller explained that he remembers the incident
"clearly because it was so remarkable" in how it
"deviated from standard practice and from what [he]
would expect and trust in a resident." Dr. Sponseller
explained that he and Dr. Gurbani were standing on opposite
sides of the patient while he was "giving her a chance
to expose the spine to demonstrate her surgical skills."
He recalled that, "very early on in the procedure,
" they were "taking the muscles off the spine"
when he suddenly "saw spinal fluid coming out on her
side" even though there was "a pretty strong
barrier between where she was working and the spinal
dura." According to Dr. Sponseller, surgeons sometimes
cause tears "when they're working around the dura,
" but it was the "first time" he had seen
someone cause a dural tear while working "several levels
above the dura." Although he was able to repair the tear
without complication, the incident indicated to him that Dr.
Gurbani was "not aware of how to use [her] hands"