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Elkharwily v. Mayo Holding Co.

United States District Court, D. Minnesota

February 5, 2015

Alaa E. Elkharwily, M.D., Plaintiff,
v.
Mayo Holding Company, a corporation, b/a Mayo Health System, d/b/a Mayo Clinic Health System, d/b/a Albert Lea Medical Center - Mayo Health System, Mayo Clinic Health System - Albert Lea, a corporation, Mayo Foundation, Mark Ciota, M.D., John Grzybowski, M.D., Dieter Heinz, M.D., Robert E. Nesse, M.D., Steve Underdahl, and Stephen Waldhoff, Defendants

Richard T. Wylie, Esq., Minneapolis, MN, counsel for plaintiff.

David T. Schultz, Esq., Charles G. Frohman, Esq. and Maslon, Edelman, Borman & Brand, LLP, Minneapolis, MN; Joanne L. Martin, Mayo Clinic, Rochester, MN, counsel for defendants.

ORDER

David S. Doty, United States District Judge.

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

BACKGROUND

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

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

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

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

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

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

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

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

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

Underdahl and Routh conducted nursing staff interviews on December 9, 2010, to assess Elkharwily's patient safety and care. Underdahl Dep. at 123:22-125:14; Routh Dep. at 65:11-19, 67:2-68:7. Comments derived from this process match those made in connection with the performance evaluation and HPSP report. See Frohman Decl. Ex. 24. On December 10, 2010, Underdahl sent a memorandum to Grzybowski cataloging the many concerns about Elkharwily. Id. Ex. 25. Underdahl concluded the memorandum by stating, " [b]ased on the volume and magnitude of concerns about Dr. Elkharwily and his performance as a hospitalist, it appears that a majority of team members have lost confidence in his ability and are very pessimistic about his ability to improve." Id. at 4. The same day, the administrative team, in consultation with in-house counsel, recommended that Elkharwily's employment end and that he be offered the opportunity to resign in lieu of termination. Underdahl Dep. at 17:16-18:20. Ciota approved this course of action. Ciota Dep. at 39:2-4; 46:22-47:8.

Later that day, Grzybowski, Underdahl, and a human resources representative met with Elkharwily to communicate MCHSAL's decision. Elkharwily Dep. at 6:20-7:2. 68:17-21; see also Frohman Decl. Ex. 32. Elkharwily disagreed with the decision and its basis, but agreed to consider resignation. Engelstad Decl. Ex. A, at 5. Elkharwily announced his resignation on December 11, 2010. Frohman Decl. Ex. 33.

On December 14, 2010, apparently regretting his resignation, Elkharwily sent emails to Ciota challenging the basis for his termination and accusing Grzybowski of blackmailing and intimidating him. Id. Ex. 34, at 2. Elkharwily also accused Grzybowski and others of " malpractice, [f]raud and unprofessional misconduct." Id. at 3. He further stated that he was subject to a hostile work environment and that he had complained to MCHSAL " over and over again." Id.

Elkharwily claims that he verbally reported patient safety concerns and negligence for months before being placed on administrative leave, but provides only vague, rambling details regarding the content of the alleged reports and when and to whom they were made. See, e.g., Elkharwily Dep. Vol. I at 32:8-33:25; id. Vol. II at 94:21-99:25. Elkharwily also claims that he submitted the following written reports of negligence and fraud to MCHSAL.

First, on September 15, 2010, Elkharwily sent a text to Ramona Anderson, the utilization review manager, mentioning a patient " with alcoholic intoxication and no thiamine or bana [sic] bag given" and stating " I think something was clearly wrong with the admissions from the E[R] today." Frohman Decl. Ex. 62, at 2. Anderson simply responded, " OK good to know thanks." Id. In his deposition, Elkharwily testified in more detail about his text, explaining that he believed another doctor had engaged in " criminal negligence" in failing to admit the patient, who was having a heart attack. See Elkharwily Dep. Vol. II at 75:25-76:10, 87:10-88:8. Despite describing the incident as " shocking and terrifying," Elkharwily admits that he did not immediately report it to Heinz, Ciota, Grzybowski, or Underdahl.[3] Id. at 86:1-23; 88:6-8. Elkharwily claims that he verbally reported the incident to Ciota, Grzybowski, and Underdahl approximately one week later, but no document substantiates this claim. See id. at 90:22-91:7. Further, Elkharwily's own seven-page discharge summary for the patient fails to mention any irregularity in the patient's care and belies his claim that the patient was not admitted. See Frohman Decl. Ex. 37.

On September 20, 2010, Elkharwily sent an email to Anderson, Dr. Sandra Birchem, and Clark, noting that two patients needed to be transferred to the Rochester facility over the weekend because the hospital did not have the resources to handle their surgeries. Id. Ex. 38, at 1. Elkharwily stated that it was " a big loss in terms of [r]evenue." Id. Elkharwily did not indicate that either of the patients received poor care. See id. Elkharwily concluded the email by saying " our ER department needs serious attention! Some serious cases over the weekend were almost missed." Id. at 2. Elkharwily did not provide any details regarding his last statement, nor is there evidence that he shared this information with his superiors or that he reported it to MCHSAL via any official reporting mechanism.

On October 11, 2010, Elkharwily sent an email to several people, including Heinz, Grzybowski, and Underdahl, discussing hand-off issues from the previous shift and recommending ways to ...


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