No TRO for Prominent but Pseudonymous Surgeon Suing the University of Michigan for Allegedly Improper Suspension

Start at Doe v. Board of RegentsToday, Judge Gershwin drain (E.D.) ruled in favor of the motion. Mich.; I posted about the motion to temporarily restraining two weeks ago.

Plaintiff asserts that he is a well-respected pediatric surgeon and tenured professor who was improperly removed from the University of Michigan’s medical staff.

The Court currently has the Plaintiff’s motion for a temporary restrain order and an Order to show cause why a preliminary injunction should not be issued. It was filed December 29, 2021. Plaintiff requests an order requiring Defendants not to report Plaintiff’s suspension at the National Practitioner Data Bank (“NPDB”) or the State Board of Medicine, and directing them to immediately restore Plaintiff’s right to practice medicine in Mid-Michigan unless a formal investigation is completed, replete of due process, finds that Plaintiff’s continued practice poses a risk to patient safety. …

Professor of Surgery in the Section of Plastic and Reconstructive at the University of Michigan Medical school, Plaintiff is currently a tenured professor. As a medical assistant at the University of Michigan, he also works there.

Plaintiff claims in his Complaint that, after raising concern about Mid-Michigan’s administrative practices regarding transparency and accountability, the Board disciplined Plaintiff for three “non-event issues.” Because of the “non event matters,” Plaintiff was allegedly denied his clinical privileges. Dr. Lozon informed Plaintiff of his rights to request a hearing in March 2021. He also stated that Plaintiff was subject to Mid-Michigan’s statutory obligation to report Plaintiff’s suspension at Michigan’s Department of Licensing and Regulatory Affairs (“LARA”) by March 2021. Plaintiff claims that the Board advised him it would send him to NPDB. Plaintiff asked for a hearing March 30, 2021.

Plaintiff claims that the Board opened the non-event matter and made a peer-reviewed decision about Plaintiff’s future at Mid-Michigan. Plaintiff asserts that the Board made him complete a Kansas-based program for his behavioral issues. This program is said to help troubled doctors with addictions and other behavioral problems.

Plaintiff has had his clinical privileges suspended for more than nine months. Plaintiff has yet to receive his requested hearing and he fears his suspension can last for two years, without a hearing until 2023….

[1.] Plaintiff could be considered as a threshold case and the Court might not have jurisdiction. Fed. R. Civ. P. 10 (a) “The complaint title must identify all parties .”). Sixth Circuit Court of Appeals ruled that a failure to request permission to proceed anonymously can be fatal for a plaintiff’s claim because the “federal courts have no jurisdiction over unnamed parties as a case hasn’t been commenced with regard to them.” Plaintiff briefly recites relevant law to proceed anonymously within this circuit. Doe v. Porter, 370 F.3d 558, 560 (6th Cir. (2004); ECF No. 2004); ECF No. [The court ordered plaintiff’s forthcoming response to defendants’ motion to dismiss to “include, but not necessarily be limited to, a discussion of each factor under Doe v. Porter. -EV]

Plaintiff next argues for likely success in his Fourteenth Amendment procedural fair process claim. He has a property right in his salary and medical staff privileges. To have property rights in benefits, one must not only have an abstract need for or desire to it. It must be more than an expectation or unilateral need for it. It must be a claim that he has a right to the property. Property rights are not created by the Constitution itself, but by “existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”

Based on Roth The Court found Plaintiff unlikable to win his federal claim in subsequent cases. Plaintiff relies on the University of Michigan Hospital bylaws to support his property interest. The bylaws, however, do not give Plaintiff the contractual right to practice medicine. The opposite conclusion is reached by case law regarding property rights in medical staff privileges. Clark v. West Shore Hosp. (6th Cir. 2001) (explaining that “no  other court has recognized the ‘effective termination’ of medical staff privileges as a possible violation of a protected property interest.”). The Court does not consider Plaintiff’s federal claim likely to succeed without evidence and authority.

Plaintiff hasn’t pleaded factual allegations that each defendant violated Plaintiffs constitutional rights, even though he retained some property in his salary and staffing privileges. Plaintiff was informed by Dr. Lozon that his suspension would now be reported to the NPDB and the State of Michigan Board of Medicine. These communications are not a violation of the Constitution. Similar to Dr. Dimick, Plaintiffs’ allegations are also subject to the same defect. Plaintiff could have also sued the wrong Board, as the Board of Hospitals has control over the medical staff and the privileging decisions. This Court is not the Board of Regents.

Even though Plaintiff claimed to have identified the right Board, the brief does not address the affirmative defenses that are available to public officials or entities such as qualified immunity and the Eleventh Amendment to the United States Constitution. Because Plaintiff’s briefing does not discuss the application of these defenses, it is difficult for the Court to conclude that Plaintiff will succeed.

Accordingly, for all the aforementioned reasons, the Court finds Plaintiff unlikely to prevail on his federal claim….