Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Gail H. Hagerty, Judge.
The opinion of the court was delivered by: Maring, Justice.
Opinion of the Court by Maring, Justice.
[¶1] Sarmed Abdullah, M.D., appeals from a summary judgment dismissing his action against the State of North Dakota, doing business as the University of North Dakota, and against Dr. David Theige, the director of the residency program at the University's School of Medicine and Health Sciences, stemming from Abdullah's dismissal from the internal medicine residency program at the University's School of Medicine for "incompetence in the area of [p]rofessionalism." Abdullah argues his dismissal from the residency program was arbitrary and capricious, and he asserts the district court erred in granting summary judgment because there are genuine issues of material fact on each of his claims. We affirm.
[¶2] Abdullah graduated from the Damascus University School of Medicine in Syria in 1999. In July 2001, he began a residency training program with the Medical College of Wisconsin, which included three rotations. As a result of evaluations in those rotations, the school offered him three options: (1) resign from the residency program; (2) accept probation and a remediation plan; or (3) take a leave of absence from the program and find another residency program. Abdullah decided to take a leave of absence and enrolled in a Post Graduate Year 1 internal medicine residency program at East Tennessee State University from August 2003 through September 2004.
[¶3] On October 1, 2004, Abdullah began an internal medicine residency program at the University's School of Medicine for his Post Graduate Year 2. Abdullah's application to the University's residency program listed the Medical College of Wisconsin under "CONTINUING MEDICAL EDUCATION (CME) Courses in Internal Medicine," rather than under a "Residency" section. In April 2005, Abdullah executed a "resident contract" with the University for a training program in internal medicine at the Post Graduate Year 3 level, which ran from October 1, 2005, through September 30, 2006. The "residence contract" provided that "appropriate certification [would] be provided upon satisfactory completion of the education and training program," and "[u]nsatisfactory or persistently less than satisfactory resident evaluation can result in required remedial activities, temporary suspension from duties, or termination of employment and residency education." The contract also said the "resident [could] be terminated for unsatisfactory or persistently less than satisfactory performance of duties as determined by supervising faculty or for failure to progress in medical knowledge and skills."
[¶4] In a June 28, 2006, letter to Abdullah, Theige, the director of the residency program, informed Abdullah that his "recent behavior and correspondence ha[d] made [Theige] very concerned about [Abdullah's] personal well-being and mental health," and Theige informed Abdullah that he had been placed on an "emergency leave of absence from the residency program, pending a psychiatric evaluation." Abdullah subsequently returned to the program on August 1, 2006, but his scheduled completion date for his residency training was extended to October 20, 2006.
[¶5] In an October 12, 2006, letter to Abdullah, Theige informed Abdullah that he was temporarily suspended from the residency program, pending a psychiatric examination, for concerns about his "professional behavior." In an October 23, 2006, letter to Abdullah, Theige summarized Abdullah's status with the residency program, including professionalism concerns about Abdullah's failure to disclose his residency at the Medical College of Wisconsin and the circumstances of his departure from that program, Abdullah's conduct regarding authorship of a research manuscript with Dr. William Newman, and Abdullah's conduct regarding a home visit with a patient:
On June 22, 2006, I received an email from you telling me that you did not intend to finish our program "if after July, 2006 my GI Fellowship contract in Mayo Clinic is not on the desk." I sent you a reply indicating my bewilderment, and asked to meet with you the next day. I later found out that you had just learned of your failure to match with a GI fellowship program. I am also aware that you were just finishing a rotation as the night float resident. The next morning, I came to work and discovered a handwritten note from you on my desk requesting my "testimony about [Abdullah] to the Chief Justice of the United States John Roberts in the US Supreme Court in Washington D.C. for the attached application. Your cooperation-not obstruction-of Justice will be appreciated." The note was attached to a typewritten 2-page "Personal Statement to the Supreme Court of the United States" which I found to be almost incoherent. At that point, I learned that you had left town that morning to begin a vacation. I met with you in my office on June 28, 2006. At that time, you appeared to be calm, coherent, and reasonable, but I placed you on an emergency medical leave from the program pending a psychiatric evaluation.
In addition to the question of your mental health, I was also concerned about part of the content of your "Personal Statement to the Supreme Court." In that document, you mentioned that you had been a resident at the Medical College of Wisconsin in the summer of 2001. I was not previously aware of this. In your curriculum vitae included with your application to our program, you did list your preliminary residency in internal medicine at East Tennessee State University. An experience at the Medical College of Wisconsin was listed only in small print under the heading "Continuing Medical Education (CME) courses in Internal Medicine." We verified, with your cooperation, that you had been a resident at MCW, and that you resigned.
You underwent an extensive psychiatric evaluation at the University of Pittsburgh in July 2006. I received a letter from your psychiatrist on July 18, 2006. The psychiatrist wrote that your psychiatric symptoms were contextual and related to sleep deprivation. He indicated that with treatment of the sleep disturbance, you could return to work after July 21, 2006. Our Resident Evaluation and Advancement Committee reviewed this matter on July 25, 2006. The committee recommended that you should be reinstated to the program after completing a meeting with the program director, but that concerns about your professionalism should be noted and reported in the future when requests for verification of training are received. I met with you on July 27, 2006. You were reinstated to the program as of August 1, 2006. Your anticipated completion date for the program was postponed to October 20, 2006 because of your recent medical leave. On September 28, 2006, Dr. William Newman sent me a letter expressing his concern about your professional behavior related to your joint research effort. Over the next several days, I received additional correspondence from other faculty and staff expressing concerns about your behavior. One of the concerns was that you initiated a home visit with a patient without appropriate attending physician supervision and that you contacted a physician at the Mayo Clinic on this patient's behalf, but that you did not appropriately identify yourself as a resident physician. Finally, on October 12, 2006, a staff member . . . reported that she was very frightened by your behavior and that she felt unsafe. I met with you later that morning and suspended you from the program pending a psychiatric evaluation.
After I receive a report from your psychiatrist, this matter will be referred to the Resident Evaluation and Advancement Committee. One of the serious issues to be considered is the matter of my evaluation of your performance in each core competency, but especially in professionalism. In order to receive credit for the final year of training and successfully complete our program, a third-year resident must be given satisfactory ratings in each competency area. My rating of your performance in professionalism will be determined after appropriate review of the matters outlined above.
[¶6] In a November 6, 2006, letter to Abdullah, Theige informed Abdullah that the University's Resident Evaluation and Advancement Committee had reviewed Abdullah's status and recommended dismissing Abdullah from the residency program. In that letter, Theige informed Abdullah of his dismissal from the residency program.
[¶7] Abdullah appealed the dismissal to a Resident Fair Process and Grievance Hearing Panel, which resulted in an evidentiary hearing before a panel of five doctors. The Hearing Panel affirmed the decision to dismiss Abdullah from the residency program for "incompetence in the area of [p]rofessionalism," finding:
l) The reference to three months in the Medical College of Wisconsin residency on the CV Dr. Abdullah submitted with his UND . . . application appears following a section on Continuing Medical Education credit and not in the section with his East Tennessee State University residency year. He denies this was an attempt to conceal this residency affiliation. On his Application for Residents for the VA, signed 4-26-04, he listed it clearly under previous residencies, however, he checked a "No" response to a question "Within the last five years have you resigned or retired from a position after being notified you would be disciplined or discharged, or after questions about your clinical competence were raised?" The letter from Dr. Olds [at the Medical College of Wisconsin] to Dr. Abdullah . . . clearly indicates that he was already on probation and that he was offered resignation as an alternative to accepting continuing probation and remediation.
2) The research manuscript in question describes both phase I and phase II projects. Dr. Newman was identified by all evidence and testimony as the mentor for the phase I, or initial, project, for which he was listed as the principle investigator in the submission to the Institutional Review Board. In testimony, Dr. Abdullah described the addition of the phase II component with Dr. Santoro as mentor. He submitted the manuscript to the Mayo Clinic Proceedings without either mentor listed as co-author, instead providing an acknowledgement for each. Dr. Stephanie Borchardt, research coordinator at the VA, had suggested the acknowledgement for Dr. Newman, as a minimum, after judging it to be unprofessional not to include Dr. Newman as an author. Dr. Newman was not presented a draft or any other copy of the manuscript before its submission and finally obtained an earlier copy, not the version submitted, by petitioning for it under the Freedom of Information Act to Dr. Borchardt. Dr. Abdullah did not present his findings or final write- up at a residency Research Committee meeting as required by the Program's Resident Research Requirement.
3) The visit to a former patient's home was conducted for reasons that are inconsistently explained by [Abdullah], both from his documentation at the time of the event and from his testimony at this hearing. He described it as having occurred both as a medical or community outreach activity and as an effort to obtain consent from the patient to use his records as the basis for a case report. Such a home visit, for any reason, by a resident in the program has never been done and is not a part of the training experience, nor was this visit approved or supervised by anyone in the program. The special license granted to residents by the State of North Dakota does not allow for any professional activities outside the scope of resident duties or supervision. [Abdullah] also moved to take over the care of this patient by scheduling him for an office visit without conferring first with either the patient's current primary care physician or discussing it with a clinic supervisor or administrator. He also failed to properly identify himself as a resident when he contacted a physician at Mayo Clinic seeking information pertaining to this patient.
1) The Hearing Panel concluded that Dr. Abdullah deliberately misrepresented his academic and employment history to avoid revealing the circumstances of his having left the Medical College of Wisconsin Internal Medicine Residency under disciplinary proceedings, and that this constitutes a substantial act of unethical and unprofessional conduct. Although the location of the reference to the Medical College of Wisconsin residency on the CV Dr. Abdullah submitted with his UND . . . application, combined with his testimony, leave it unclear whether this was a knowing and deliberate misrepresentation, the response on his VA application to the question regarding resignation under disciplinary conditions or questions of competence provides clear evidence of his intent to hide this fact.
2) The Panel concluded that Dr. Abdullah was unethical and unprofessional in his attempt to bar or remove a principle investigator, Dr. Newman, from work and publication over which the investigator rightfully had jurisdiction, and in deliberately submitting for publication a manuscript in violation of the program's requirements concerning resident research.
3) The Panel concluded that Dr. Abdullah's conduct concerning a home visit to a former patient and conduct concerning the patient involved in that visit was unethical and unprofessional. The visit itself was unprecedented by a resident in this program, unapproved, unsupervised and outside the scope of his resident duties and resident licensure. Seeking a patient's consent for publication by visiting him in his home is a highly irregular and troublesome approach, showing disregard for the ethical implications of the means by which to obtain consent from patients. During and following that visit he attempted to take over care of the patient, inappropriately intervened by trying to gather medical information on a patient for whom someone else had primary clinical responsibility, and failed to identify himself properly to a Mayo Clinic physician.
Abdullah appealed the Hearing Panel's decision to the Dean of the University's School of Medicine, who upheld the Hearing Panel's decision to ...