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Gurbani v. Johns Hopkins Health Systems Corp.

Court of Special Appeals of Maryland

June 1, 2018


          Circuit Court for Baltimore City Case No. 24-C-15-002959

          Wright, Arthur, Albright, Anne K. (Specially Assigned), JJ. [*]


          Arthur, J.

         In this 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.

         Factual and Procedural Background

         Appellant 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.

         Dr. 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 jury trial.

         Three 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).

         A. Dr. Gurbani's Path to the Residency Program at Johns Hopkins

         Barkha 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.

         A 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), 0/PFAssets/ProgramRequirements/260_OrthopaedicSurgery_2017-07-01.pdf. 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.

         A 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.

         In July 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."[1]

         Dr. 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.

         Along 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 residency.

         B. The Initial Resident Contract: July 2011 through June 2012

         On July 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.

         The 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."

         The 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's website.

         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 allow."

         The 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.

         C. Assessments from Dr. Gurbani's First Three Rotations

         Beginning 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.

         Members 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.

         In 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.

         The 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 ended.

         Meanwhile, 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 program.

         Throughout 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 casts.

         In this 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.[2]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."

         Dr. 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.

         D. The Semiannual Evaluation Meeting: January 26, 2012

         The 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 rotation.

         According 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."

         Dr. 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."

         E. Evaluations from the Pediatric Orthopaedics Rotation

         In 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."

         Two 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."[3] In a final evaluation, submitted in June 2012, Dr. Tis gave her scores of 2 out of 5 or below in seven categories.

         Dr. Ain 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."

         In a 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 observed her.

         F. Orthopaedic Trauma Rotation with Dr. Osgood and Dr. Hasenboehler

         By 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).

         Sometime 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.[4]

         Dr. 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.[5]

         Dr. 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 other behavior.

         Both Dr. LaPorte's memos and a "timeline" produced by Dr. Gurbani, show that their first meeting during the rotation occurred on May 4, 2012.[6] 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 physicians.

         According 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 and diagnoses.

         According 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 that time.

         At some 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.

         G. The Decision to Place Dr. Gurbani on Academic Probation

         The 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."[7] 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."

         One 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 on probation."

         Dr. Gurbani claims that, during that meeting, she requested an "appeal or some type of formal grievance" regarding her probation.[8] 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.

         In that 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.

         Dr. 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 probation decision.[9]

         On June 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 location."

         As Dr. 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 uncomfortable.

         On June 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 criteria.

         On July 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.

         H. Probation and the Committee's Decision to Dismiss Dr. Gurbani

         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.

         During this rotation, Dr. Sponseller reported that Dr. Gurbani caused a "dural tear"[10] 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" and ...

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