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NOT FOR PUBLICATION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
-2-
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
-3-
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
-4-
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
-5-
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.
-6-
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
-7-
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
-8-
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
-9-
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
-10-
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.
-11-
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
-12-
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
-13-
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.
________ _________________
-14-
