                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-18-2006

Springer v. Henry
Precedential or Non-Precedential: Precedential

Docket No. 04-4124




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Springer v. Henry" (2006). 2006 Decisions. Paper 1671.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1671


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                          PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 04-4124



            DAVID T. SPRINGER, M.D.

                           v.

                 RENATA J. HENRY,
      individually and in her official capacity as
  Director of the Division of Alcoholism, Drug Abuse
        and Mental Health of the Department of
 Health and Social Services of the State of Delaware;
           GREGG C. SYLVESTER, M.D.,
       in his official capacity as Secretary of the
       Department of Health and Social Services
                of the State of Delaware;
DELAWARE DEPARTMENT OF HEALTH & SOCIAL
                        SERVICES

                     Renata J. Henry,
                                Appellant



    On Appeal from the United States District Court
              for the District of Delaware
                (D.C. No. 00-cv-00885)
     District Judge: Honorable Gregory M. Sleet


               Argued October 26, 2005

  Before: SLOVITER, FISHER, and GREENBERG,
                 Circuit Judges.

              (Filed: January 18, 2006)
Phebe S. Young      (Argued)
Marc P. Niedzielski
Department of Justice
Wilmington, DE 19801

       Attorneys for Appellant

Thomas S. Neuberger (Argued)
Stephen J. Neuberger
The Neuberger Firm
Wilmington, DE 19801

       Attorneys for Appellee

Andrew L. Schlafly
New York, NY 10175

       Attorney for Amicus-Appellee
       Association of American Physicians and Surgeons, Inc.


                  OPINION OF THE COURT


SLOVITER, Circuit Judge.

        The case before us can be viewed on two levels. On one
level, we have an appeal by an employer from an adverse verdict
in favor of an employee (here independent contractor) on his
claim of unlawful termination in retaliation for speech protected
by the First Amendment. On the other level, the amicus curiae,
the Association of American Physicians and Surgeons, argues
that the issue transcends the relationship between the parties and
instead impacts thousands of patients damaged as a result of
hospital errors, incompetence, wrongdoing, and cover-ups. On
either level, our task is to review the law applied by the District
Court on a plenary basis and ascertain whether there is sufficient
evidence to support the jury verdict.


                                 2
                                I.

       The Appellant (defendant in the District Court), Renata
Henry, has been the Director of the Division of Alcoholism,
Drug Abuse, and Mental Health (“Division”), the division of the
State of Delaware’s Department of Health and Social Services
(“DHSS”) responsible for the Delaware Psychiatric Center
(“DPC” or “Center”) since July 1, 1999. Dr. Gregg Sylvester
was the Secretary of DHSS from October, 1997 through January,
2001, the time period at issue here.

        Plaintiff/Appellee, Dr. David T. Springer, a psychiatrist,
was an independent contractor at the DPC from July 1, 1991
until June 30, 2000 pursuant to nine successive one-year
contracts. Although each contract specified that Dr. Springer
could be terminated without cause upon fifteen days’ notice, and
none of the contracts guaranteed renewal, at the end of each
contract year Dr. Springer received and signed a proposed
contract for the following year.

       Each of Dr. Springer’s yearly contracts since July 1, 1996
specified his duties as “[t]o provide psychiatric services to
patients at Delaware Psychiatric Center.” App. at 1431. The
parties agree that in practice Dr. Springer also served as the
director of the DPC psychiatric residency training program from
1993 until 2000, the elected president and the chairperson of its
Medical Staff Executive Committee from 1999 to 2000, and a
member of its credentials committee from 1993 to 2000.

         In a series of five memoranda dated from October 21,
1999, to January 26, 2000, Dr. Springer voiced his critical
opinions on matters relating to the policies, procedures and
administration of the DPC. These were introduced into evidence
at trial as Plaintiff’s Exhibits PX-1 through 5. Other physicians,
medical residents, and staff members signed onto these
memoranda. We summarize them below but because they are
central to the issues before us they are included verbatim in the
Appendix to this opinion.
         PX 1, a memorandum dated October 21, 1999 entitled
“Concerns about Delaware Psychiatric Center,” contains a long
list of inadequacies on patient care and safety issues.

                                3
App. at 1384. It describes the DPC as failing in the task of
treating psychiatric patients with high quality care in a respectful
and safe environment. The memorandum charges that there was
“gross understaffing of the hospital;” that experienced
psychiatrists had left because “they declined to compromise the
patient care and safety;” that security was poor; that members of
the staff had subjected patients to demeaning comments; that
patients had complained of being physically abused; that “the
patient units lack[ed] discipline due to lack of training provided
to the aides and technicians;” and that “[s]taff [was] afraid to
speak out on issues affecting patient care and safety.” App. at
1384-86. In the final paragraph, the memorandum states that as
“hospital administration has shown lack of concern over this it is
time that these issues were put in front of legislature and
electorate of Delaware whose family members come here for
treatment and whose tax money is put into work.” App. at 1387.
Although the memorandum was signed by 11 psychiatric
residents, Dr Springer conceded that he helped to edit the
language of PX 1. The memorandum shows copies going to
Governor Carper, the Secretary of Health & Social Services
Sylvester, the Hospital Director Simono, the Medical Director
Dr. Smayer, the Training Director Dr. Springer, Senators of
Delaware, the DHCC, the Department of Public Safety, and the
News Journal, and there was testimony that it was handed to
Governor Carper during one of his visits to the hospital.

        PX 2, a memorandum dated November 23, 1999 (just one
month after the earlier memorandum), from Dr. Springer, in his
capacity as president of the DPC Medical Staff Executive
Committee and co-signed by five other physicians, is captioned
“Critical Issues in the Care of the Mentally Ill in Delaware” and
is addressed to the DPC Governing Body. App. at 1388. It
summarizes the earlier “plea for help” for the beleaguered
program previously outlined by the DPC medical residents, and,
in Dr. Springer’s own words, “was basically a plea to the
Governor, the hospital director, Ms. Henry, and other people.”
App. at 780. It states, inter alia, that “the capacity of DPC to
provide [Delaware citizens with severe and/or long term mental
illness] with treatment is deteriorating and facing collapse as of
July 2000.” App. at 1388.


                                 4
       The third memorandum, PX 3, is dated December 2,
1999, less than two weeks later, and was written by Dr. Springer
on behalf of the DPC Medical Staff Executive Committee. Dr.
Springer testified that it was handed to a Medicare reviewer who
was on campus “in hopes that the Medicare folks would help us
in terms of some of the concerns that we had with patients.”
App. at 784-85. It was signed by four physicians in addition to
Dr. Springer, and, in its own words, sought to bring attention to
the unresolved issues at DPC, and “proposed actions that may
begin us on the road to protecting and preserving patient care
and safety.” App. at 1390. The solutions proposed were to
“Address Safety Issues as Soon as Possible;” “Fix
Understaffing/Personnel Issues as Soon as Possible;” and
“Increase Physicians’ Authority to Ensure Quality and Safe
Patient Care.” Id.

        PX 4, dated December 16, 1999, two weeks later, was
written by Dr. Springer, in his capacity as President of the DPC
Medical Staff, and Psychiatric Residency Training Director, and
is addressed to the DPC Governing Body Members and consists
of a proposed agenda for the December 22, 1999 Governing
Body Meeting. That agenda lists some of the areas that the
medical staff believed needed to be addressed under the
headings “Need for a Psychiatric Residency Program at DPC,”
“Need to Attract and Retain Dedicated and Qualified Teaching
Attendings” and “Contingency Plans.” App. at 1392-93. Under
the latter heading, the proposal urges that “if a decision is made
to close the residency program, the current residents should be
given the option of completing their entire training at DPC.”
App. at 1393.

        The fifth memorandum, PX 5, was Dr. Springer’s report
to the DPC Governing Body, entitled “Medical Staff President
Report to the Governing Body Meeting of January 26, 2000.”
App. at 1394. The evidence reflects that it was not presented
until the March 21, 2000 DPC meeting. The Report summarized
the issues of concern affecting patient care at DPC that the
Medical Staff Executive Committee Officers proposed for
discussion by the Governing Body. The Report stated that “[t]he
most glaring issue at hand is that the DPC medical staff is now
in open disagreement with the hospital administration about how

                                5
the patients should be treated.” App. at 1400. It notes, inter alia,
that “the situation has deteriorated to the point that physicians
are essentially being asked to practice medicine at below their
own minimum ethical standards on a routine basis” and lists
“New Concerns Around Patient Care, Credentialling [sic] and
Liability Issues for DPC.” Id. It also discusses “New Patient
Care Issue,” “Ethical Issues,” and “Continued Concerns Around
Patient Care and Safety.” App. at 1400-04. PX 5 additionally
contains the two statements that Henry argues are “falsities” that
allegedly deprive the communications of their First Amendment
protection - one that she describes as alleging Medicare fraud
and the other referring to an applicant as “unlicensed.” Those
statements will be discussed at length hereafter.

       On May 12, 2000, less than two months after Dr.
Springer’s presentation of the fifth memorandum, Henry notified
Dr. Springer by letter that his contract at DPC would not be
renewed upon its expiration on June 30, 2000, and that the
Division would be publishing Requests for Proposals (RFP), to
which Dr. Springer was “free to respond.” App. at 1405.

       Delaware state law had changed in 1996 to require that
contracts for professional services exceeding $50,000 per year,
such as those under which Dr. Springer worked, be awarded
through a process of public bidding. 29 Del. Code Ann. tit. 29,
§§ 6913, 6981 (2005). Dr. Sylvester instructed his Division
Directors, including Henry, in accordance with these changes.
Since May, 1999, the Division has published Requests for
Proposals for the provision of psychiatric services to various
Division programs, including the DPC. Dr. Springer did not
respond to any of those Requests for Proposals.

       It is Dr. Springer’s position that he was the only physician
whose contract was not renewed before or during the year 2000,
ostensibly because of the new state requirement. Although
Henry relies on this 1996 state law revision as one of the bases
for non-renewal of Dr. Springer’s contract, she produced no




                                 6
evidence that she had sent any such notice to anyone else.1

        On October 6, 2000, Dr. Springer initiated the instant
action under 42 U.S.C. § 1983, seeking monetary damages and
injunctive relief2 for the non-renewal of his contract, claiming
that said non-renewal constituted retaliation for his engagement
in speech protected under the First Amendment. On November
9, 2001, Henry moved for summary judgment. She argued that
Springer’s speech was not protected because it addressed his
personal concerns, it was disruptive, he would have been
terminated because he failed to bid for renewal, he suffered no
damages, and that Henry was entitled to qualified immunity. Dr.
Springer moved for partial summary judgment on the ground
that his speech was protected by the First Amendment, and
argued that Henry was not entitled to qualified immunity
because his First Amendment right was clearly established.

       In a Memorandum and Order entered March 12, 2002 (the
“March Order”), the District Court denied Henry’s motion for
summary judgment and granted Dr. Springer’s motion. The
Court held that (1) Dr. Springer’s “speech was protected under
the First Amendment” because “[t]he content of Springer’s
speech clearly addressed a matter of public concern” and (2)
Henry “is not entitled to qualified immunity” because
“Springer’s right to engage in speech was clearly established at
the time he was terminated,” and there were no facts to show
that Springer’s comments had any disruptive effect. App. at 49.
The court stated, in conclusion, “a jury must decide whether his
protected speech motivated his termination, whether he would


      1
        Henry did not seek Dr. Sylvester’s approval for her non-
renewal action.
      2
         Dr. Springer sought a variety of monetary damages and
injunctive relief against the defendants. DHSS was dismissed for
all purposes by stipulation on June 19, 2001. On the same day all
claims for monetary damages against the individual defendants in
their official capacities were dismissed. The request for an
injunction was moot. Thus, the only remaining claim is against
Henry in her individual capacity.

                                7
have been terminated in the absence of the speech, and whether
he suffered damages.” App. at 16. The case proceeded to trial.

       On April 1, 2004, the jury returned a verdict for Dr.
Springer. In response to special interrogatories, it found the
following: (1) Dr. Springer had “proven by a preponderance of
the evidence that his protected activity under the First
Amendment reflected in Plaintiff’s Exhibits 1, 2, 3, 4 and 5 was
a substantial or motivating factor in the decision to not renew or
offer him a new contract,” App. at 18-19; (2) PX 2, 3, 4, and 5
were the instances of protected activity for the decision not to
renew Henry’s contract; (3) Henry had failed to prove “by a
preponderance of the evidence that regardless of plaintiff’s
exercise of his First Amendment rights, [that she] would . . . not
have renewed his contract in July 2000,” App. at 19; (4) Dr.
Springer suffered actual injury from the non-renewal of his
contract; (5) the damages that Dr. Springer had suffered which
were proximately caused by the nonrenewal of his contract were
$285,464 to the present and $588,431 into the future, App. 20;
and (6) $100,000 in non-economic damages. In an additional
interrogatory, the jury found that (7) Henry “acted recklessly,
intentionally or maliciously with regard to plaintiff,” App. at 22,
and awarded Dr. Springer $25,000 in punitive damages in
connection with the latter finding.

         On September 17, 2004, the District Court entered a
memorandum opinion and order on the parties’ motion for post-
trial relief (“September Opinion”) in which it upheld the jury
verdict in all respects but struck the $100,000 award of non-
economic reputation damages. Henry filed this timely appeal.

                                II.

                                A.

        The standards by which we review the trial court’s rulings
are well-settled. We exercise “plenary review over the District
Court's denial of judgment as a matter of law,” applying “the
same standard as the District Court.” Johnson v. Campbell, 332
F.3d 199, 204 (3d Cir. 2003). We also exercise plenary review
of a district court’s grant of summary judgment. McGreevy v.

                                8
Stroup, 413 F.3d 359, 363 (3d Cir. 2005). We review the denial
of a new trial for abuse of discretion. Foster v. Nat’l Fuel Gas
Co., 316 F.3d 424, 429-30 (3d Cir. 2003). A new trial should be
granted only where the “great weight” of the evidence cuts
against the verdict and “where a miscarriage of justice would
result if the verdict were to stand.” Sheridan v. E. I. Dupont de
Nemours & Co., 100 F.3d 1061, 1076 (3d Cir. 1996) (en banc).

                               B.

        We have recently reviewed the analysis applicable when a
public employee files a claim of retaliation for engaging in
protected First Amendment activity. McGreevy, 413 F.3d at
364. The plaintiff must first demonstrate that s/he engaged in
protected activity, i.e. speech that addresses a matter of public
concern. We then employ the balancing test derived from
Pickering v. Bd. of Educ., 391 U.S. 563 (1968), “to determine
whether an employee’s interest in the speech outweighs the
state’s countervailing interest as an employer in promoting
workplace efficiency and avoiding workplace disruption.”
McGreevy, 413 F.3d at 364 (quoting Pickering, 391 U.S. at 568).
Next, the plaintiff must prove that the protected activity was a
substantial or motivating factor in the allegedly retaliatory
action. Thereafter, the burden shifts to the employer to
demonstrate that the allegedly retaliatory action would have been
taken absent the protected conduct. Id.

       Whether an employee’s speech is protected under the
First Amendment is a question of law. Azzaro v. County of
Allegheny, 110 F.3d 968, 975 (3d Cir. 1997) (en banc);
Baldassare v. New Jersey, 250 F.3d 195 (3d Cir. 2001). The
First Amendment’s protection of an employee’s right to speak on
matters of public concern extends to independent contractors.
Bd. of Comm’rs, Wabaunsee v. Umbehr, 518 U.S. 668, 686
(1996).3 See also O’Hare Truck Service, Inc. v. City of
Northlake, 518 U.S. 712, 721 (1996). Henry has not seriously


      3
       Accordingly, we refer to Springer as a “public employee”
or “employee” interchangeably.


                                9
disputed that the contents of Dr. Springer’s speech (i.e., a
physician’s critique of patient safety and unsafe working
conditions) constitute matters of public concern. In several cases
cited by the District Court the courts held that statements by
health care providers regarding patient care involved matters of
public concern. Scheiner v. New York City Health and
Hospitals, 152 F.Supp.2d 487, 495-96 (S.D.N.Y. 2001); Kattar
v. Three Rivers Area Hosp. Auth., 52 F.Supp.2d 789, 799 (W.D.
Mich. 1999). We adopt the District Court’s determination that
Dr. Springer’s speech raising concerns on the state of healthcare
at the DPC facility addressed matters of public concern. The
distribution of the five communications to persons within the
hospital and those responsible for governing the hospital as well
as to public officials and the general public through the media
was not inappropriate.

       Henry’s appellate brief lists sixteen issues but essentially
they condense to Henry’s claim that the District Court erred in
holding that Dr. Springer’s speech was protected under the First
Amendment without analyzing whether the five memoranda
contained false statements that are allegedly unprotected4 and in


       4
           Dr. Springer contends that Henry waived her falsity
defense by failing to raise it in the pretrial order. He relies on our
decision in Ely v. Reading Co., where we adopted the proposition
that “[t]he pretrial order is generally binding on the parties . . .
[and] cannot be modified without the permission of the court and
a showing of manifest injustice.” 424 F.2d 758, 763 (3d Cir. 1970)
(citing Fed. R. Civ. Pro. 16; 3 Moore’s Federal Practice § 16.11).
In Ely, we upheld the district court’s refusal to permit Ely’s expert
witness to testify where the expert’s name was not listed in the
pretrial order but was only included in an unauthorized
supplemental pre-trial memorandum. Id. at 763, n. 13. We held
that “[t]he decision of whether or not to permit a change [in a
pretrial order] is within the discretion of the trial judge” and that
“[a]ppellate interference with this discretion should be kept at a
minimum.” Id. at 763.

        Ely is inapposite to the present facts. Under Ely, we review
for a “clear abuse of discretion.” However, our decision in Ely did

                                 10
holding that Henry was not entitled to qualified immunity. We
consider each issue in turn.

1. The alleged false statements

        Henry’s claim asserting that material containing falsities
is unprotected under the First Amendment must be considered in
the context of now well-established principles. In Pickering,
where the principles relating to a government employee’s free
speech right were first enumerated, a teacher was dismissed by
the Board of Education for writing and publishing in a
newspaper a letter criticizing, inter alia, the Board’s allocation of
school funds between educational and athletic programs. The
Supreme Court unequivocally rejected the view of the Illinois
Supreme Court “that teachers may constitutionally be compelled
to relinquish the First Amendment rights they would otherwise
enjoy as citizens to comment on matters of public interest in
connection with the operation of the public schools in which
they work . . . .” Pickering, 391 U.S. at 568. The Court repeated
its earlier statement made the preceding year that “[t]he theory
that public employment which may be denied altogether may be
subjected to any conditions, regardless of how unreasonable, has
been uniformly rejected.” Id. at 568 (quoting Keyishian v. Bd.
of Regents, 385 U.S. 589, 605-06 (1967)).

      It was in its discussion of the required balancing
“between the interests of the teacher, as a citizen, in commenting
upon matters of public concern and the interest of the State, as
an employer, in promoting the efficiency of the public services it


not hold that an argument automatically is waived if not extant in
the pretrial order. Here the District Court allowed Henry to present
testimony at trial as to the truth or falsity of statements in PX 1-5.
Dr. Springer does not argue that the District Court abused its
discretion in so allowing. Instead, his argument appears to suggest
that even though Henry presented testimony on the falsity issue at
trial she has waived her right to raise the issue on appeal because
it was not present in the pretrial order. We find no legal support
for such a proposition and reject Dr. Springer’s contention that
Henry waived her falsity argument.

                                  11
performs through its employees,” id. at 568, that the Pickering
Court made any reference to false statements. The Court
reviewed Pickering’s speech and determined that some of the
statements were erroneous. It did not hold that the speech was
therefore unprotected, as Henry would have us do. The Court
stated:

              What we do have before us is a case in which a
      teacher has made erroneous public statements upon issues
      then currently the subject of public attention, which are
      critical of his ultimate employer but which are neither
      shown nor can be presumed to have in any way either
      impeded the teacher’s proper performance of his daily
      duties in the classroom or to have interfered with the
      regular operation of the schools generally. In these
      circumstances we conclude that the interest of the school
      administration in limiting teachers’ opportunities to
      contribute to public debate is not significantly greater
      than its interest in limiting a similar contribution by any
      member of the general public.

391 U.S. at 572-73 (footnote omitted). It continued:

               The public interest in having free and unhindered
      debate on matters of public importance - the core value of
      the Free Speech Clause of the First Amendment - is so
      great that it has been held that a State cannot authorize the
      recovery of damages by a public official for defamatory
      statements directed at him except when such statements
      are shown to have been made either with knowledge of
      their falsity or with reckless disregard for their truth or
      falsity.

391 U.S. at 573 (emphasis added) (citations omitted).

        Unlike the Pickering Court’s acceptance that Pickering’s
communication included false assertions, we are not prepared to
accept without question Henry’s assertion that PX 5 contained
false statements. They may be more accurately viewed as
exaggerations in the context in which they were made.


                               12
        One of the two statements Henry alleges was false, that
the hospital hired a physician who was not licensed, was
discussed by the District Court in its September Opinion. PX 5
states that “[t]wo Acting Medical Directors were appointed by
the administration in one week, including an unlicensed
psychiatrist.” App. at 1401. Henry objects to the statement that
the Administration appointed an “unlicensed psychiatrist.”
Henry argues that the psychiatrist referred to was actually
licensed to practice at DPC. Dr. Springer testified that the basis
for his statement was that the psychiatrist in question was “not
an independently licensed psychiatrist” or physician but rather
had only a DPC institutional license, granted by Henry herself.
The District Court’s September Opinion states that Henry
requested temporary credentialing for a particular physician
applicant. Dr. Springer objected, three members of the
Credentialing Committee voted to grant the physician partial
privilege and two, including Dr. Springer, voted not to do so.
Henry refused to sign the physician applicant’s credentialing
unless he was given full unrestricted privileges. At the
conclusion of the discussion of that incident in one half of a page
on PX 5, the Report states that “[t]he Medical Staff requests that
the Governing Body pass a motion supporting adherence to the
Medical Staff Bylaws, especially in regard to matters of
credentialling [sic] physicians to the DPC Medical Staff.” App.
at 1401. Dr. Springer’s asserted bases for his statements do not
support a contention that they were recklessly made.

        The other falsity Henry alleges relates to the section of
the same Report headed “Ethical Issues” and alleges that “[i]n
order to give the appearance to Medicare reviewers that DPC
had adequate staffing,” nurses, psychologists, and staff were
brought in from elsewhere. The Report denominates this action
as unethical, states that it might bring future negative actions
against the hospital and requests that the Governing Body pass a
motion that DPC must “follow ethical principles in dealing with
state, federal or other regulations or other overseeing bodies.”
App. at 1401. This discussion hardly accuses Henry or DPC
with Medicare fraud, as Henry contends.

       Even if these statements contain a somewhat one-sided
view, their recounting, totaling no more than one page in the 14-

                                13
1/2 pages of PX 1 through PX 5, does not support Henry’s
characterization of the exhibits as containing falsities. They
represent a small portion of the evidence presented.

       The District Court permitted counsel for Henry to present
testimony at trial as to falsity, yet evidence elicited from Henry
on direct examination establishes that she believed there to be no
untrue allegations in PX 3 or PX 4. The trial transcript
demonstrates that the “falsities” counsel for Henry tried to elicit
through his client’s testimony were merely Henry’s
disagreements with Dr. Springer as to what policies would best
improve the DPC:

       [Counsel for Henry]: Okay. Turning to Exhibit 3 – and
       again, this is one that you have seen quite a bit in the past
       few days, I think – are there allegations contained in this
       document which you believe are untrue?

       [Henry]: No.

       [Counsel for Henry]: Are there recommendations in this
       document with which you disagree, that is, that you
       would believe are not a good idea?

       [Henry]: Yes.
            ....

       [Counsel for Henry]: No. 4, Exhibit 4, are there
       allegations contained in this that you believe are, let’s
       start with true?

       [Henry]: Are there allegations that are true? A lot of
       these are recommendations. Allegations, I don’t see
       allegations that are true.

       [Counsel for Henry]: Do you see allegations that are
       false or is it just a matter of recommendations?

       [Henry]: The majority of these are recommendations.

       [Counsel for Henry]: Are they recommendations that

                                 14
       were consistent with the plan that you had for correcting
       the problems at the hospital?

       [Henry]: There is one suggestion that I would not agree
       with on this, that would not fit in my plans with how I
       thought the problems needed to be fixed.

       [Counsel for Henry]: Otherwise, you had no big
       problem with this?

       [Henry]: No.

App. at 1180-81.

        Such “recommendations,” by definition, cannot be false.
The testimony before the court was unequivocal: Henry
answered “[n]o” to every question about whether she could find
false allegations in PX 3 or PX 4. Id.

        Henry additionally argues that the District Court did not
allow her to present sufficient testimony to support her falsity
argument. She adduces a page of bullet-pointed “[s]tatements
contained in Plaintiff’s Exhibits 1-5 upon which Ms. Henry’s
full testimony would have been helpful.” Appellant’s Br. at
18-19. However, every one of these statements is devoid of
factual assertions except the last, and this last statement relates
to PX 5 discussed above, not PX 3 or 4.

        Henry’s argument that the District Court failed to fulfill
its duty by submitting the five documents to the jury as protected
despite Henry’s contention that there was undisputed evidence
that each contained statements which were untrue or believed to
be untrue misses its mark. The issue is not falsity vel non but
whether such statements, even if untrue, were knowingly or
recklessly made. See Pickering, 391 U.S. at 574 (1968).5 There


       5
        Henry failed to argue in her opposition to Dr. Springer’s
motion for partial summary judgment that any allegedly false
statements made by Dr. Springer were made with knowledge or
reckless indifference to their falsity. She addressed the issue only

                                 15
was no such evidence. On the contrary, the District Court stated
that “[i]t is apparent that [Dr. Springer] was motivated by a
desire to improve conditions at the DPC and was frustrated that,
in his view, he was encountering resistance.” App. at 46-47.
Because we reject Henry’s argument that the communications
were unprotected because of alleged falsities, it is irrelevant
whether the District Court submitted two of the memoranda to
the jury as protected and decided post-trial that the remaining
were protected. After examination of the documents as the
Supreme Court did in Pickering, we hold that all five exhibits are
protected under the First Amendment.

2. Reiteration of Qualified Immunity Defense

        Henry’s other argument reiterates her pre-trial argument
that she was entitled to qualified immunity, an argument the
District Court rejected in its March Order denying Henry’s
motion for summary judgment on that ground. Henry now
argues that in view of the evidence presented at trial, the District
Court erred in failing to reconsider its ruling rejecting her claim
of entitlement to qualified immunity as a matter of law.

       The District Court held that Dr. Springer’s right to speak
on various problems confronting hospital administration was
clearly established. The court also rejected Henry’s contention
that Springer’s right was not clearly established because his
contract was not certain to be renewed under the new bidding
process.

       Promptly after this ruling, Henry filed an interlocutory
appeal. This court dismissed the appeal for lack of jurisdiction,


in her discussion of the disruption analysis, stating that allegedly
“false statements were crafted to cause disruption.” As such, Henry
cannot now complain that the District Court failed to consider
knowing or reckless falsity in its March Order. Baldassare, 250
F.3d at 198 (“The public employer . . . bears the burden of
justifying the discharge, which varies depending upon the nature of
the employee’s expression.”) (citations omitted).


                                 16
holding that “disputes of fact preclude this court from exercising
jurisdiction.” Springer v. Henry, No. 02-1776 at 3 (3d Cir. Nov.
27, 2002) (citing Johnson v. Jones, 515 U.S. 304 (1995)).6 We
identified only one such dispute of fact in said order: “[T]he
parties dispute whether appellee, David T. Springer, was treated
differently than other physicians with respect to rebidding for
their positions.” Id. We deferred our review of qualified
immunity pending “appeal at the conclusion of the case,” i.e., the
instant appeal.7 Forbes, 313 F.3d at 147-48.

      We exercise plenary review of the District Court’s
determination that Henry was not entitled to qualified
immunity.8 Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001);

       6
         This Interlocutory Order was filed some two weeks before
our December 11, 2002 decision in Forbes v. Twp. of Lower
Merion, 313 F.3d 144, 146 (3d Cir. 2002), in which we
“announce[d] a supervisory rule to be followed in all subsequent
cases in which a summary judgment motion based on qualified
immunity is denied on the ground that material facts are subject to
genuine dispute,” which supervisory rule now “require[s] the
District Courts to specify those material facts that are and are not
subject to genuine dispute and explain their materiality.”
       7
           In Curley v.Klem, 298 F.3d 271, 278 (3d Cir. 2002), we
noted that “the imperative to decide qualified immunity issues early
in the litigation is in tension with the reality that factual disputes
often need to be resolved before determining whether the
defendant’s conduct violated a clearly established constitutional
right.”

       8
        Demonstrating that it did not view our Interlocutory Order
as a vacation of its qualified immunity decision at summary
judgment, the District Court “construe[d] defendant’s [Rule 50]
motion as an untimely motion for reconsideration of its previous
summary judgment ruling,” a procedural disposition under which
Henry’s motion would be “granted only if it appears that the court
has patently misunderstood a party, has made a decision outside the
adversarial issues presented by the parties, or has made an error not
of reasoning, but of apprehension.” App. at 35-36. Noting that

                                 17
see also Forbes, 313 F.3d at 148 (“In assessing a claim of
qualified immunity, we must review the law relevant to the
official’s behavior and ask whether the official could have
believed that his or her actions were justified by law.”).

        Henry relies on the Sixth Circuit’s decision in Gossman v.
Allen, 950 F.2d 338 (6th Cir. 1991), where the court held that
the employer was entitled to qualified immunity on a claim that
it violated the employee’s rights because a reasonable official
could have believed that Gossman knowingly or recklessly made
false statements, and could be terminated on the basis of those
unprotected statements. Id. at 341-42. Gossman does not
support Henry’s claim of qualified immunity because Henry,
unlike the employer in that case, failed to proffer any persuasive
evidence that Springer made false statements or that any of the
statements he made were made with his knowledge or with
recklessness as to their falsity. Therefore, no reasonable official
could have fired Springer on the basis of those statements.

        As the Supreme Court has noted, “the court should ask
whether the [official] acted reasonably under settled law in the
circumstances, not whether another reasonable, or more
reasonable, interpretation of the events can be constructed five
years after the fact.” Hunter v. Bryant, 502 U.S. 224, 228
(1991). Henry raises the issues of knowledge and recklessness
for the first time in the instant appeal;9 she never sought to



“[n]o additional evidence was introduced at trial to change the
court’s understanding of the issue,” the District Court ruled that
“Henry is not entitled to qualified immunity for the reasons stated
in the court’s [March Order].” App. at 36 (including in a footnote
the entire text of the March Order’s qualified immunity decision).

       9
         Henry originally based her motivation for sending Dr.
Springer a non-renewal letter on the public bidding requirements
imposed on her by changes in State law that took effect in 1996.
See Note 3, supra (citing 29 Del. Code Ann. tit. 29, §§ 6913, 6981
(2005)). Indeed, when Henry sought to introduce evidence of
falsity at trial, the District Court commented, “I thought [Henry’s

                                18
present evidence as to Dr. Springer’s mental state with regard to
allegedly false statements.

        Because Dr. Springer’s First Amendment right to speak
out was clearly established at the time of his non-renewal, we
consider whether, viewing the evidence in the light most
favorable to Dr. Springer, it would be clear to a reasonable
official in Henry’s position that s/he could not properly refuse to
renew Dr. Springer’s contract because of the new state bidding
requirement. See Saucier v. Katz, 533 U.S. 200, 202 (2001);
Karnes v. Skrutski, 62 F.3d 485, 494 (3d Cir. 1995). In our
Interlocutory Order of November 27, 2002, we stated that
whether a reasonable official could have sent the non-renewal
notice depends primarily upon whether “appellee, David T.
Springer, was treated differently than other physicians with
respect to rebidding for their positions.” Springer, No. 02-1776
at 3 (Interlocutory Order).

       Both at trial and on appeal, Henry has failed to refute
evidence tending to show that Dr. Springer was the only
independent contractor physician whose contract was non-
renewed in 2000 and the only such physician to have ever
received a non-renewal letter during his nine years of working at
the hospital. Viewing this record in the light most favorable to
Dr. Springer, no reasonable official could have sent a non-
renewal letter to only one of at least five other independent
contractor physicians at the hospital.

        Henry nonetheless argues that “[a] reasonable official in
[] Henry’s position could have believed that requiring [Dr.
Springer] to comply with state procurement laws did not violate
[Dr. Springer’s] rights.” Appellant’s Br. at 41. We view the
question before us somewhat differently. As our order denying
the interlocutory appeal suggests, the relevant question is
whether a reasonable official in Henry’s position could have
believed that there was any constitutional basis for requiring
only Dr. Springer and no other independent contractor physician


claimed reason for not renewing Dr. Springer’s contract] was
because he simply didn’t apply for a new contract.” App. at 1176.

                                19
to comply with state procurement laws. Because Henry
provided no plausible reason for her targeting of Dr. Springer to
the exclusion of other independent contractor physicians, the
answer to this question is in the negative. Henry’s rationale that
she began to enforce the bidding requirement with Dr. Springer
because he was the independent contractor physician who was at
DPC the longest is not plausible. On the facts viewed in the
light most favorable to Dr. Springer, see Karnes, 62 F.3d at 494,
no reasonable official could have believed that the decision to
target solely Dr. Springer could be based on any reason other
than retaliation for protected speech.

                                C.

       Henry challenges the judgment for both economic
damages and punitive damages. The jury awarded Dr. Springer
$873,895 for his economic loss notwithstanding Henry’s
counsel’s argument that Dr. Springer did not suffer any
economic injury as a result of losing his job. She argues that
there was no assurance that his contract would have been
renewed and that he was never promised that it would be. Her
claim is unpersuasive.

        Dr. Andrisani, Dr. Springer’s expert witness, gave
testimony sufficient to serve as the basis for the jury’s finding
that Dr. Springer’s contract would have been renewed absent the
non-renewal letter.10 The only contradictory evidence was the
testimony of Dr. Link, Henry’s expert witness. It was the jury’s
role to determine which expert was more credible, and the jury
reasonably could have adopted the view of Dr. Springer’s expert
witness.

       On a Rule 50 motion for judgment as a matter of law, a


       10
          Dr. Paul J. Andrisani analyzed economic data and
evaluated courtroom testimony and concluded that Dr. Springer
had suffered a total economic loss of $1,281,068 based upon a 60
hour work-week. The jury limited Andrisani’s calculation of loss
to $873,895. There was sufficient expert testimony on loss to
support the jury verdict. (App. 39-40.)

                                20
district court “must disregard all evidence favorable to the
moving party that the jury is not required to believe.” Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 151 (2000).
The District Court correctly observed in its September Opinion
that “[w]hether Springer’s contract would have been renewed
but for his memos was a question of fact properly before the
jury.” App. at 39. Drawing all inferences in favor of Dr.
Springer, a reasonable juror could infer that he would work
many more years at the DPC. The evidence was sufficient to
support the jury’s economic damages award.

       A jury may award punitive damages when it finds
reckless, callous, intentional or malicious conduct. See
Alexander v. Riga, 208 F.3d 419, 430-31 (3d Cir. 2000); see
also, Smith v. Wade, 461 U.S. 30, 54-56 (1983). This standard is
disjunctive: “[T]he defendant’s conduct must be, at a minimum,
reckless or callous. Punitive damages might also be allowed if
the conduct is intentional or motivated by evil motive, but the
defendant’s action need not necessarily meet this higher
standard.” Savarese v. Agriss, 883 F.2d 1194, 1204 (3d Cir.
1989). In response to special interrogatories, the jury specifically
found $25,000 in punitive damages appropriate because Henry
acted “recklessly, intentionally or maliciously with regard to [Dr.
Springer].” App. at 22.

       Although we might not have reached the same verdict as
the jury, the record contains sufficient evidence to support the
jury’s conclusion that Henry singled out Dr. Springer for
intentional disparate treatment. As we noted above, Dr. Springer
produced unrefuted evidence that he was the only independent
contractor physician whose contract was non-renewed in 2000.
The District Court ruled that “[a] reasonable jury could have
concluded that Henry was motivated by evil intent or reckless
indifference.” App. at 41.

       The jury’s finding of reckless or intentional behavior is
supported by consideration of the circumstances under which Dr.
Springer received Henry’s non-renewal notice which informed
him his contract would not be renewed and that “the Division
will be publishing Requests for Proposals.” App. at 1405.
Although an RFP with a submission deadline of 11:00 a.m. on

                                21
Wednesday, May 17 (“May 17 RFP”) was issued on April 10,
2000, (App. 1472-73), Henry did not send the non-renewal
notice to Dr. Springer’s home address until Friday, May 12.
Henry testified–and the jury was entitled to believe–that he
received the notice of non-renewal on the evening of Monday,
May 15, less than two days before the proposal deadline.11 As
the District Court noted, “Henry notified Springer only five
days, at best, before the proposal deadline despite the fact that
the position had been advertised for over a month.” App. at 41.

        On May 16, 2000, Dr. Springer tried fruitlessly to obtain
an extension that would have allowed him sufficient time to fill
out the requisite thirty page application form by the May 17
RFP’s proposal deadline, which form Henry had failed to attach
to the non-renewal letter. On the same day, Henry was notified
of Dr. Springer’s attempt to secure an extension in filling out the
application, but there is no evidence that she attempted to assist
him despite the fact that the timing of her non-renewal notice
was the source of his impediment. Even Dr. Sylvester testified
that Henry followed “unusual” procedures in ending Dr.
Springer’s employment.12 App. at 681.


       11
         The Request for Proposals provided that “QUESTIONS
CONCERNING THIS RFP MUST BE SUBMITTED IN
WRITING BEFORE THE DEADLINE OF April 19, 2000 AT
4:30 PM,” App. at 1472, some four weeks prior to Dr. Springer’s
receipt of the non-renewal notice.
       12
          In arguing against the punitive damages award, Henry
relies in part on Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003),
where the court found insufficient evidence on the record for
punitive damages. Henry attempts to portray Brennan as a case
with far more evidence adverse to the defendant than the present
case. However, in purporting to cite that evidence, Henry instead
cites Brennan’s own unsubstantiated allegations. In fact, we
concluded that there was insufficient evidence for a punitive
damages award specifically because there was insufficient evidence
for a jury to find that Brennan’s unsubstantiated allegations (of
harassment and retaliation) were correct. See Id. Brennan’s
version of the facts had no evidentiary support in the record.

                                22
        The jury finding of callous or malicious behavior also is
supported by Henry’s attitude toward Dr. Springer and the
medical staff in general. Dr. Sylvester testified that Henry
viewed her interactions with the medical staff, including Dr.
Springer, as “adversarial.” App. at 666. Three witnesses–Henry,
Dr. Sylvester, and Dr. Springer–testified that Henry was upset
and unhappy with Dr. Springer. Dr. Springer testified that
during meetings of the DPC Governing Body Henry was “angry
and spoke [to him] with a lot of emotion,” App. at 780. Based
on its observations at trial, the jury could have concluded that
Henry acted vindictively.

        The evidence supports the jury finding that Henry acted at
least recklessly or callously, if not intentionally or maliciously,
with respect to Dr. Springer’s constitutionally protected rights.13



Brennan, 350 F.3d at 429. By contrast, in the instant case, there is
ample evidentiary support for the jury finding.
       13
          We are mindful in our review of whether there was
sufficient evidence to support the punitive damages award of the
possible conflict of interest the Delaware Department of Justice has
in representing Henry regarding this specific issue. A letter from
Springer's counsel to the Department of Justice offering to settle
the pending matter on appeal references a formal opinion authored
by the Delaware Attorney General which explained that state law
bars Delaware from paying any portion of a civil judgment against
a state official if a jury finds that official is liable for punitive
damages. App. at 1954-56. Thus, the practical effect of the
punitive damages award in this case would render Henry
individually liable for the entire amount. As a result, we note the
possible disincentive for the State to represent Henry zealously
with respect to the punitive damages award.

       In this case, Appellant's voluminous brief devotes two
cursory sentences to its analysis that the record is insufficient to
support a punitive damages award. See Appellant's Br. at 54. We
do not suggest that the State intentionally omitted arguments
regarding the punitive damages award; rather, we raise the issue to
note our concern over the possibility of a conflict. See, e.g., Del.

                                 23
The District Court did not err in affirming the jury’s punitive
damages award.14



Rules of Prof’l Conduct R. 1.7. We urge the Delaware
Department of Justice to look into this issue in the future. Mindful
of the possible conflict in this case, we have examined the
sufficiency of the evidence de novo, and we are convinced, based
upon our independent review, that there is sufficient evidence to
uphold the punitive damages award.
       14
          We reject Henry’s argument that Dr. Springer’s counsel
inserted racially inflammatory language during his rebuttal closing
argument. Henry failed both to object to the language in question
during closing argument and to raise an objection to the allegedly
inflammatory statement in her motion for a mistrial. The first time
Henry complained of the misconduct was in her motion for a new
trial. We therefore apply the plain error standard.

       Dr. Springer’s counsel stated during rebuttal in his closing
argument, that “An octopus, when it's attacked by an enemy, emits
a jet black inky film throughout the water and in the disarray,
confusion, the octopus escapes. In this case, from the very first
moment, the defendant has been emitting black fluid to cloud the
issues in this case.” App. at 1369-70 (emphasis added).
Thereafter, in discussing damages, counsel referred to Dr. Springer
as “a 45-year old - white male professional.” App. at 1370. Henry
is an African-American female and Dr. Springer is a white male.
Race was never raised elsewhere as an issue in the present case.

        In his argument to this court Dr. Springer’s counsel sought
to justify his comments as for identification. We find that
unacceptable. We deplore any introduction of race into a case
where race is not at issue. Nonetheless, the District Judge, himself
an African American, found possible neutral reasons and concluded
that “[t]he court is satisfied that the octopus and black ink analogy
is common enough and did not likely confuse the issues for the
jury.” App. at 49.

      Inasmuch as the District Court who had an opportunity to
view the closing argument in the context of the trial, found the

                                 24
                               IV.

       We see no error of law. Nor can we conclude that the
verdict was against the weight of the evidence. For the
foregoing reasons, we will affirm the judgment of the District
Court in its entirety.
_________________________




remarks unobjectionable, combined with Henry’s failure
contemporaneously to object to the language, we will not hold that
the District Court abused its discretion in denying Henry’s motion
for a new trial.


                               25
David T. Springer, M.D. v. Renata J. Henry, No. 04-4124




                        APPENDIX
                             (See attached PDF document)
  CONCERNS ABOUT DELAWARE PSYCHIATRIC CENTER
 .DATE : 10/2 1/99
          Delaware Psychiatric Center, the only state run hospital for mentally ill, serving
 all of Delaware, treats the sickest and most vulnerable segments of our d e t y . As most
.patients are quite ill, may not have involved families, and have no choice of treatment
 facility, the state hospita1,hasan enonnous responsibility to treat these psychiatric
 patients with high q d i t y care in a respectfir1 and safe environment. Unfbrtunately, DPC
 is failing in this task with the prospects for improvement slim

 PATIENT CARE and SAFETY ISSUES:
                    .   -.
 I) There is gross udataffing of the hospi&L Psychiatrists mutidy tr& 45 p d m t
 each; one psychiatrist is responsible for 85           Then is also an inadequate ofnwtes
                                                                                          -
to safiely run the hospital. Tht hotpitat treating environment is not conducive to recruiting
and retaining qualified personnel.

U is the most acute unit in the hospital with a stated capacityof 32 patientr The unit
even when it is over-census; at times exceeding 50 patients. This poses a great safety
hazard because of overcrowding and understaffing. Patients are unable to be adequately
monitored for d e t y with little or no time foi any treatmat.

Over the course of last few years. at least 6 Board Certified and dedicated psychiatrists
have left K.3 as they dedined.to.mmpmmise      the
                                                . patient
                                            .e Dumw       care and dq.         1t a&ars that
the main firnetion of t         h                      u to a c t ~ ~ - - a - m . oto-cpj
                                                                                    ~fi~ lhl    -   -
patient c a w s down; not to promote quality patient care. When staff members do not
agree with demands of the Unit Director, he often becomes hostile and threatening,
making for an intolerable wo.rking environment. This has k n brought to the notice of
administration repeatedly with no action taken resulting in an extraordinary deterioration
of morale.

2) The admission area is almost always understaffed. T h m is rarely ever a nune present
   in the admission area The nurse who is supposed to cover the admission area i s rqrely
   available due to widespread understaffing. Patients who are agitated
                                                                -       and need to be
    medicated immediately are not treated in-a timely manner.

3) Security officers are rarely present in the admission area. Though they are present on
   the hospital campus, it may take up to I0 minutes for sqcurity to amve when called in
    the case of violent patient.

The following are 2 examples o f safety concern:

An agitated, intoxicated and psychotic patient barricaded and locked himself in an office
of the admission area and attempted to hang himself with a phone cord.


                                   DEPOSITION
                +

                                    EXHIBIT                001384
                                                                                 A0261
                             $-2/;-&f     ,,q
                      .        .
                                            Acutely psychotic and/or severe13 depressed patients while on arm's length observation
                                            are often allowed to go to the restroom unaccompanied by staff.

                                            4) When the unit gets~overctowdad,no beds are available for patients, they have to deep
                                            on cots, or on couches in the dayrooms, which compromises the safety of patients and
                                            naK These cots are unsafely stored in the computer mom of the unit. A staffmember
                                            was injured when cots landed on. her
                                                                               . .
                                                                                   head.

                                            5) Acutely psychotic patients have been able to escape the unit at will. Patients have been
                                            able to walk through doors. dimb fence or break window guards to escape,

                                            6) A patient who was on arm's length observation for suicidal intent, at the time went
 .   .                                      into her room and tied a pillow cover around ha neck with an intention to strangle
 -                                          henelf. She was found in time befire a tragedy happened. The incident was iavcstigated
                                   .   .    but no action taken

                      \
                                           - 7)There seems t o be too much attention f     d on keeping the patient & u s down
                                             Thue is often pressure to &charge patients bebre an adequate and safe treatment plan
                                             has been formulated. There is intense pressure to keep the number of suicide watches
                                            down.
. .      .. - .   .                        There are times when a patient vduntarily walk into the admission area with an
. .                                        expectation of seeing a psychiatrist and instead the Unit Director,a social worker,
                                           evaluates hem. Invariably the patient is asked to leave by the unit director and does not
                                           get to see a psychiatrist.

                                           Similarly, when a patient with legal charges is brought into the admissions area the unit
                                           director often triager the patient without allowing for a psychiatric evaluation and
                                           discharges the patient.
..                                         8) There have been a numerous instances when the Unit Director and other staff have
                                           subject& the patienu in the admission.arca to demeaning comments. Besides being
                                           unethical and disrespecthi these comments often result in asgrauating a revucly
                                           mentally ill patients. On numerous instances K3 Unit director has been observed to be
 1
                      ..   _               demeaning to numerous patients. Patients often become agitated and violent requiring
                                           unnecessary medication of the patient. When staff members questioned the Unit Director
                                           about the inappiopriateness of his comments. the Unit Director has become verbally
                                           threatening toward the staff members.

                                       p   t l y there were 2 cares on the unit when patients had complained of being physically
                                           abused by the staff members. Families of the patients were v#y concerned about the
                                           safety of their family members. However. investigations into staff misconduct often do
                                           not lead to appropriate disciplinary action.

                                           On one of the units. an HIV prtgnant patient had edelivered her baby in the seclusion
                                           room of DPC. 'The patient stated that when she had gone up to the staff and repontd that
     she was in labor, staff asked her to go to the seclusion room instead of arranging for her
     to be transferred to hospital. Needless to say. the safety of the newborn was also
    jeopardized in this case.

    9) All the patient units lack discipline due to lack of training provided to the aides and
    technicians before they start working on the unit. There are numerous instances of staff
    lying, speaking disrespcctfblly, and in an intimidating manner to other staff and patients.
    The hospital administration, by its lack of firm response to this, is implicitly supporting
    that kind of behavior.

     StafF is afraid to speak out on issues affecting patient care and safety. As they are afiaid
    of being punished.by the administration. StafT has also expressed fear of speaking out
*   andor disciplining the staff for fear ofgetting their tires slashed, having feces smeared on
    their car or wone. The administration has been made repeatedly aware of this problem,
    with no action to date.

    10) Delaware Psychiatric Residency Training Program, the only training program in the
    state of Delaware began in the late 1950's and grew rapidly to serve Delaware State.

    The primary goal of the Delaware Residency Program in Psychiatry was and is ability to
    develop a broad range of professional skills for the residents so that they can effectively
    and competently practice psychiatry in a wide variety of settings. The varied activities of
    the Delaware I h i d e a q Program in Psychiatry may be seen as composed of concentric
    circles. The first circle consists of service related to community needs; an example is an
    intimate working relationship with the DPC, community psychiatry, crisis intervention,
    and numbers of general hospitals. etc. The second circle consists of teaching, training
    research. and continuing education in the Delaware State community. The Delaware
    Psychiatric Center is responsible for teaching in all four years of the postgraduate training
    in general psychiatry. That training takes place in the everyday world of medical practice
    through selflcss commitment of residents to the patients.with a genuine concern for their
    interests, needs, and safety.

     Excellence in psychiatry requires intensive training and experience with a hndamental
    emphasis on assessment. treatment planning and application of modem therapeutic
    technology. Individual supervision. educational seminars. rounds. and case conferences
    are the primary techniques used to convey knowledge. clinic31 skills, and the professional
    attitudes appropriate for a clinician. However. during the last few years it became harder
    and harder to provide excellence in.training for residents due to the lack of integrity of
    staff, increased tenseness among hospital administration and clinical staff, and
    undermining the physician role in therapeutic process.

    Resident doctors are the only physicians providing services to the hospital From 4:30 PM
    to 8AV on weekdays and all day weekends. During this time Frame resident doctors
    provide not only psychiatric but also all medical care to over 350 patients in addition to
    admitting patients around the clock. Inability of the hospital administration to retain
    dedicated teaching psychiatrists has created a void in the training of the residents.
                                   * . ,,t
         -
         ,
                         Having a residency program i s not only a monetary benefit for the hospital but residency
                         provides educational environment within and outside hospital syynem The residency
                         p r o m fillyaccredited for over 40 yean has produced quality prychiurirtr thit iftu
                         graduation have senled in ihe area to function in the Public Mental Health sector, will
                         likely be closed due to insufficient dedicated teaching psychiatristr that hospital
                         a d d n ' d o n has not been able to retain.


                         As hospital administrationhas'shom lack of concern over this it is time that t h e issues
                         were put in h n t of legislature ud electorate of Delaware wbosc -ly
                         here for treatment and w h e tax money is put into work
                                                                                                 manbar come
                                                                                                                     L
I
                                        NAME                          SIGNATURE                                      I
                     ,   PGY IV: Dr Fahim Fahim.
    . .
                         PGY 111: Dr. R. mi.
..                                Dr. R. Srinivasa
             i
     .           .
                         PGY 11:       Dr.~hafiqaAzamy
                         PGY I:
                                       Dr. s h a d s a w a n t
                                       Dr.A. Yarlagadda
                                                                   +(*
                                                                                         .. - .
                         CC: Governor, Mr. Thomas R. Carper.
                             Secretary of Health & Social Services. Gregg C. Sylvester, MD. . -
                             Hospital Director, Mr.Two Shimono.
                               Medical Director, Dr. Phyllis Smoyer.
                               Training Director. Dr. David Springer.
                               Senators of State of ~ e l a w b e .
                               DHCC.
                               Dept. of Public Safety, Brian J. Bushneller
                               News Journal.
          DELAWARE HEXW
          AND SOCIAL SERVICES
          OIVlSlON OF ALCOHOLISM,
          DRUG ABUSE AN0 MENTAL HEALTH




           -.
                                                     -
                                                     o    m
                                                           RECEIVED
                                                          NOV 2 9   1999
                                                                        :
                                                                                    ~   ~-




                                                                               WARE PSYCHIATRIC




                  delaware Psychiabk Center Governing Body (Renata J. Henry, C h a i r p e ~ ~
                 .EugeneWolinsky, Vicd=hakperson,-Gregg C. Sylvester, MD, Cabinet Secretary,
                  Benjamin meti, Isaiah F. Henry, Stephen Moores, M.C., Dorothy Pattemn, Gary
                  L W a Ed.0.)

                 Mr. Thomas Carper, Govenxx
                 Mr. Jim R Shim&, ACSW, Hospital Djrector

                 Delaware P q d W k Center Medical Staff B a x u h Committee O f t i a s @avid
                 T. SFwinger, MD,.PmMer& Cheryl CantreS'MD, V                   l Fawda tiasan,
                 MD, Secretary, Egis Kendle, MD, Medical Staff Activities Dkector, Syed Muair,
                 MD, Member-at-,      Hugo Del VJfar, MD, Member at Large)
                                                                                        DEPOStTlON
  Date:          November 23,1999                                                        EXHlSlT

  Re:            Critical Issues in the Care of the Mentally Ill in Delaware

  Deiaware PsycbiatriCCenter OC), known as Detaware State Hospital for a cenkKyprior to
  1996,&theonlys~ep~ho~h~an4as~tfie~hpatient~
  available to &&ware cXzms with severe andlor long term mnfalillness The pafients'
 tpnd&nsindudi3sctr&o~hrerda,deptessiocr,~&sorder,merepenonalitydisocden,
 substance akse, de&ntia, brain hjwy, mental merdalfjon, and psy@b& c m p k a h w of
 m e C r i ~ , s u c h a s v - A I D SCummtly,asthe~ofpeoplewtththesepcoMems
                                       .
 increases, tfie capadty of =-to pFovide them vvith beatment b dekkating and f  '
 collapse as c# Jufy 2000.

  For several years, we have had cGi3culty mahtaMg adequate numben d                          at WC.
  Weare heavilydependmtonthephyddans h c c r 5 0 + y e a r o I d p s y c h l a h y ~ ~
  .(theonly me h Delaware) to provide c T i C Q V ~ ~ @bo(h     ,  psydJatric and W i H w r ,
  residentsmwt be both educated and supenbed. Every board certified teaching psyddaMstwe
  have hired 3n the last five years has m n e d aRer a relatively shon stay, citing hostile and -
, unsafe woWng &             i and understaffing. Since the sbdh such resignatiorr in'Octobef 1999,
  it has seemed unlikely that the residency d d tie continued after the .currentacademic year; in
  s$e of       fad that no oire wants to lose U s valuable program. The negative &npadof dosing
  a failing to fill the positiocls in the residency can hardly be owstated: it would mean the loss of
  a1 night, weekend and holiday coverage, and daytime admlssh coverage for the hospital.

 On Odober 2 1, 1999, the DPC residents wrote a letter to Governor Carper, with copies to state
                                  tfmt was essentially a plea f a k l p for M
                                                                            i beleaguered
 program.                         atte&n.in -themdia.andspam4.as-cries qf: k!ter.est@
 responses and editcrrials. The Governing Body of the hospital should take immediate steps b    '




 reverse Ihe current downward spiral, before it is too late. We musi hire residents for the
 academic year beginning h Jufy 2000 no later than March 2000. We have four months to
 reverse the trends of the last five years.                                                     -
                                                      001388
                                                                                        A0259
PAGE TWO
Nov. 23,1899 Memo to Governing Body
               AND SOClAL SERWCES
               OIVISION OF ALCO~OUSM,
               ORUG A B U S E A N 0 MENTAL HEALTH




DEPOSITION          TO:WHOM IT'MAY CONCERN
 EXHIBIT
                    FROM: ~etawarcpsychiatric Cater Medical StaKExecutive Commirttc Officers
                    DATE: Dcctmkr 2,1999




              a) ' W e n ~ d b e r p a m a n e n t d v l i i v e r t o t f s e b i d p o c c s s f o r c o n t r s d ~ w h o ~ ~ f. o r
                 positions at DPC.

              b) All kmim to hiring hki&q&m psycbiat&s at competitive ratcs should be climimtrA
         3)   INCREASEPHYSICYUIJS' AUTHORITY TO ENSURE QUUrrY AND SAFE PATIENT CARE
              a) Haveachiefprychiabidandchargenwruncsehtrtatn#atonit

              b) Appoint, at least, two Board4hISed psychiatrists to the Governing Body. Schedule m
                 lrdditioaalmcCtiagof~~Bodyas5ooaarposn'bkaodisctlnissuesofpaticatcart~
                 safety, as well as,to eirnrrt thc psychiatric rcsidarcy's survivaL

              c) Give to the Govltraing Body a complete detailed acamhg of cxpdinrrrs @c!uding each
                 employee or contraax's name, posi tioq and amount paid) to evaluate whether the current
Page Two
Letter from DPC MSEC Offkus
Dtc 2 1999
                                                                                           .   r
              DElAWmE HEALTH                                        RECE~*ED
              AND SOCCAL SERVICES
              DlVlSlON   OF ALCOHOUSM.
                                                                   OEc 1 7 1999
                                                                             .-                                      -.
              DRUG ABUSE AH0 MENTAL HEALTH




         To: DPC Governing Body Members

         From     avid T.Springer
                 President, DPC
                                                                                         [
                                                                                         * .
                                                                                           ;       EXHIBIT




                 PsychiatricResidency Training Duector

         Re: PROPOSED AGENDA FORDECEMBER 25 1999
                                            . .
                                                 GOVERNINGBODY
         MEETING
         Date: December 16, 1999

                Thank you h r taking the time to meet to discuss critical issues      ~~the DPC
I        Psychiatric Residency Program Your c o m m i t m ~and interest is M     y apprcciattb
         The following is an oldhi of some of thk arc+ that the Medical Staff believes naeb to
         be addressed to atsure the fixture of the residency program. In addition, I am endosing a               -
1   --   memo h r n the DPC Medical StaffExedvc Committee O££ica-swhich b.
         pmposed actions.
                                                                                         some

I        L       NEED FOR A PSYCHIAT%IC RESIDENCY PROGRAM AT DPC
                 -           the smxity of psychiatric arid'madical illnasq of DPC patients require
                             24 hour cwcrage by psychiatrists                                                             1


                 -           q l t c h g F d d e covcmge with atkdiag               coverage would
                                                                                                                          I
                             likely cost $800,000 mom than having a residency program
                 -       -   cva~   ifwctra monies wwe atlocatad,the Iilrclibood off%ding sufficient
                             mxnbas of d+cated attadhg psychiafxkts to cow 370 patients,
                             seclusion orders and acute admissions on nights, week&      and bolidays
                             would be remote
                             the loss ofthe academic atmosphere provided by the residency would have
                             a deleterious effed on patient care

         IL      NEED TO ATTRACT AND RETAIN DEDICATED AND QUALIFlED
                 TEACHING ATTENDINGS
                 -       . 'Wtdiwut suf£icient numbers of qualified teaching attendings, the residency
                             cannot survive
                 -           qualified teaching atiendings will only agree to come and stay at DPC if
                             they fetl that they can work in an environment that is safe and where they
                             have an ability to provide qualily' care
                             having insufficient staffing and ovexaowding throughout the hospital is
                             not conducive to attracting and retaining teaching psychiatrists                -
                                                                 001392           '         A0267
-       having an apparent emphasis on keeping the census down at DPC i s
        demoraking and confUshg for psychiatrists and staff
-       psycbiatkts need to haw the authorityBnot just the rtspoastiility, to trd
        patients (i~e,psychia&istsshould not be ac&scd of keeping patients too
                                       ..
        long in the hospital, not be pressured to take patients off suicidal watch,
        not bvc minimal roles in nAmlnlstratt've decisions affecting patieat care,
        not have to fight kr adequate hding fbrmcdidoa and doctors, not
        have roadbtodd~putin the Wry of hiring new psychiatrists and not be
        reproached f i r questioning the orthodoxy of the nomedical viewpoint)


CONTINGENCYPLANS
-       if~dacisio~ismadctodosttb~~eocgpro~tbaarent~
    .   should be given the option of completing their entire t d h g at DPC
    MEDICAL STAFF PRESlDENT REPORT TO THE GOVERNING BODY MEETING
    OF JANUARY 26,20000

            In preparation for the la nu^ 29,2000 Governing Body meeting, the Medical
    Staff Executive Committee Officers propose that the following be discussed in
    fblfillment of the Medical S t a f f s obligation to inform the Governing Body of issues of
    concern affecting patient cart at DPC:

                                           ..
            The most giaring issue at band is 'thatthe DPC medical staffis qow in open
    disagreement with the hospital h u m t m h onaboutbowthepatiedssboutdbetreatcd
    we have for yean had a situation in which the physicians were legally rcspoasible for
    making the mst important clinical decisions but at the same time were reporting to lay
    admin*ktraton. This created a tease situation in which
                                                                 . . . tcchaiques cwld be
    used to pressure physicians into making a particular decision At present, the situation
    has deteriorated to the point that physicians are-essentiallybeing asked to practice -
    medicine at below their own minimum dhical standards on a routine bask Therefore,
    we are m o d y obligated to fight this practice, including notification of the appropriate
    regulatory agenu& that might have the powexto intervme and demand impro&ments.


    NEW CONCERNS AROUND PATIENT CARE. CREDENTIALLING AND
    LIABILITY ISSUES FOR DPC

    1)   New Patient Care issue
                                          \

         On three separate days, the hospital       ..   'on.told the psychiatric residents on
         call to abruptly transfer ~~    either to another unit within the hospital or to ardDther
         facility, either on a wcekqd day or in the lhiddle of the night T v transfers wcn of                        L
         elderly patients at around 8 PM on a Friday night Residents were given direct orders
         by noa-psychiatric.admini&rs to dkharge and transferthi pati- without
         consultation or approval of the unit attending psychiatrist or the backup attepding
         psychiatrist.                                                                 I


         Transferring patients at off-hours, without adequate plaaning and preparation of the
         patient and their h i l i e s pin be seriously disruptive to the patient's treatment. Tbis
         includes disrupting the patient's relationship with his psychiatrist and treatment team
         members, a lack of doctor to doctor transfer of sick patients, disregard for sick
         patients' need to get reociented to a new treatment team, and disruption of the
         discharge planning and family contacts that have occurred to date,                                     'I   1
                                                                                                                I

         It is of equal concern that residents, with training licenses, were instructed agains!
         hospital policy and with possible violation of state regulation, to follow orders of non-     II            1



         psychiatric administrators.                                                               -   $ 1
                                                                                                        Ij
,                                 f.00                          001394
                                                                                                            I
                              a
                                 The Medical Staff requests that the Governing Body p&s a motion that supports the
                                 fact that only an attending psychiatrist may order treatment for a patient at DPC and
                                 that non-psychiatric administrators may not order treatment, including the discharge
                                 of patients.

                       ;   2) Credentialling

                                 There has been a serious shortage of psychiatric staff at DPC for years. Little was
                                 done about this until Medicare made iinunannounced site visit and discovered the
                                 dire staffshortagk. The measures taken by the administration, hrtunately, showed
               .   .             little concern for the patients' best interests and weie in violation of hospital policies,
                                 Medical Staff bylaws and JCAHO @ens.                                                     1




                       .         A 35 per how a week contract psychiatrist was placed on the admissions unit of DPC
                                 with "temporary privilegesn in flagrantviolation of medical staff bylaws.

                              Thae was no meeting of the Credentials Comaittee or thc ~ d d i c a StlffExecutive
                                                                                                   l
                              Committee. The Medicd Staff Executive Committee or I k i i e n t of the Medical .
                              Staff did not designate anyone to act on the'g behalf. There was no recommendation
I. !                         'of the Credentials ~ommittee'or Medical StaEExemtivc Committea There was no
     . .
                             .consideration of the applicant's review of performance and peer recommendation as
                              communicated verbally*andby email to Mr.Shimono Drs
                            ' Two Acting Medical Directors were appointed.bythe
                                                                                         ~
                                                                                         . . Springer
                                                                                              .
                                                                                                      and Cantrell.
                                                                                                'on in one week,
                              includii an unlicensed psychiatrist

                                 The Medical Staffrequests that the Governing Body pass a motion supporting
                                 adherence to the Medical StaEByIaws, especiallyin regard to matters of
                                 CftdatiaUg physicians to the DPC Medical Sta£E



                            - In order to give the appearan& to Me-            reviewar that DPC had adequate
                                 staffing, nurses were brought'in fiom other state fkcilities, psychologists and .other       .

                                 staffwere made to work as psychiatric aids in retura for compensation time the
                                 following week. Recently, at least two nurses have been reassigned from patient care
                                 units back to the administrative building.

                                 The Medical Staff believes that utilizing staff in a manner, in which they might be put
                                 in a position to deceive federal regulators about the permanence of their positions, is
                                 unethical and may risk future negative actions against the hospital

' . ..                           The Medical Staffrequests that the Governing Body passes a motion that DPC must
 '         I
                                 follow ethical principles in dealing with state, federal or other regulators or other
                                 overseeing bodies.
I
                CONTINUED CONERNS AROUND PATIENT CARE AND SAFETY

I                  The administration's written response to both the resident's and medicat stafls'
                   concerns attempted to portray that all their concerns were addressed. The residents
                   and medical staff believe that few, if any, concerns were adequately addressed and
                   that serious conc#nsremain which continue to affed patient care and safety at DPC.

                1) Patient Care and Safety Issues:

                   The Medical Staff have been requesting that r nwse be assigned to the admissions
                   unit for over six yean, yet the silministntion is still only "cohsidering" the
                   assignment. Inadequate rtaKity presence in the admissions area has not been
                   addrtssad Voluntary "walk-in" patients arc d d y turned away by the Unit                    .
                   ~ h owithout  r   allowing the patient to be seen by a psychiatrist. Pat& patients      '


                   for admission arc accepted by the Unit Director or dcrk without a DPC psychiatrist
                   accepting the patient here ranainsafety issues for the planned admission area
                   patient unit.
.
    . ,.
           -   2) Patient Length of Stay:

                   The Medical Staff oppose the appointment of a consultant to 'ensure that patients are
                  receiving the best cart possible with the appropriate length of stay.' The Medical
                  Staff have not received a+ notification that their ciire of individual patients,
                  including the length of time they are tr&cd in the hospital has been inappropriate. It           .
                  is evident that the purpose of hiring a ccmuknt, at taxpayea's ejrpense, is to try to.
                  lower the ltngthof stay. It is the hope tfrat D-PCdoes not go down the failed road of
                  managed cari:where reduced length 6fstay becomes more important than quality care
                  fbrthe&dualpatient.          -
               3) Resignation of teaching psychiatrists in the last five years who have cited hostile
                  .unsafe working conditions

                  The Medical Staffencourages the Governing Body to sd up a subcommittee to
                  investigate this matter.

               4) Impact of failing to fill positions in residency program

                  The Medical StafFrqueststhat the Gowning Body passes a motion
                                                                             .
                                                                                giving explicit
                  support and long-term commitment to the residency program.

               5) Personnel Issues
                                                                     a
                                                         001296
                                                                                                           -   ..   .
                      The Medical Staffrequeststhat the Governing Body form a Personnel subcommittee
                                                                                                               ..

                                                                                                                                         I
                      to investigate personnel practices at DPC. It is evident that there is a significant lack
                      of uniformity in the application of disciplinary measures.

                     In addition, acts of vandalism and threats of vandalism (for example, tires slashed or             .
                     feces smeared on c q s ) in retaliation for discipline of staff members has not been
                     adequately addressed.
                                                                                                                                         1
             -   .



                 6) Allocation of Resources
                                .   .
                     The Medical Staffbelieves that a gross analysis of admiaistrative costs versus direct
..
                     sewice costs would not s k i enough light on the actuaIabcatioa of resources.
                     Hundreds of thousands of dollars of taxpayer money have been spent on adjunctive
                                                                                                                                         I
                     aitivities while the hospital bas k e n uadastdkl fk years. The tnrth can d y been
             -       fi>rind out in the dttails The Medid Staffrequeststhat the entire Govaning Body
                     or subcommittee investigate.
                                                                                                                                     I
                     The Medical Staffreques~s the GoverningBody investigate the exact costs of paying
                     for uninsmd patients at Meadow Wood Hosp'd and Roclcfbrd Hospital and whether
                                                                                                                                     II
                 -   that money would be better spent in opening up more patient space at DPC.
                                                                                                                                     I
         f




     I
                 7) Request for a series of emergency meetings with the DPC Governing Body

                     The Medical Staffbelieves that the Governing Body should meet o q at least, a
                     monthly basis at this time,= addrcssing.theabove issues and ones that follow
                                                                                                                                     I
                     demand a lot of .time and atteaha
                 8. ) Pmposals. notyet addressab-                                                                           .\
                                                                                                                                     I
                     a) Need fix pennanent waiver to bid pmxss fbr hiring contract psychiatrists.
                                                                                     .   .             '                             I
                     b) Eliminate all a d m i n h d y t barriers to biring Merit psychtatnsts
                     c) Kave a chief psy&atrist aid chargelnursenm each treatment ttnit.
                     d) 'Appoint,at least, two b o a r d e e d psychiatrists to the GovcmingBody.                                    I

                 1) SHOULD POPULATION-BASED METHODS, SUCH AS,..CENSUS OR LENGlX
                    OF STAY BE D-ANTS             OF QUALITY CARE OR THE INDrVIDUAL                                              -   I
                    TREATMENT OF THE PATIENT?
                 2) SHOULD THE MENTALLY IU BE AT GANDER HILL AND WCI OR DPC?
                    (please see enclosed article)
                                                                                                                                     I
                 3) WHAT IS DPCS CONTINGENCY PLAN FOR THE POSSIBILITY THAT
                    MEDICAID MANAGED CARE COMPANIES, WHICH HAVE BEEN GOING
                    BANKRUPT AT AN INCREASING RATE AROUND THE COUNTRY, WILL BE
                                                                                                                                     I
                                                                         . .-              .   .   .-..
                                                                                                   .          .         e<w
                                                                                                                         -
                            '.
            .. .- :.c&,i&-&.&.*;g*.QL:$*-5:=   - :;a y:.<e--kq:: .2<...                              :   1
                                                                                                         .
                                                                                                                  ..y&.
    -                         --                                      .-- .. ...  ,>.*7.                            .        ..
                                                                                                                          - . f...i e- .
.
                                                                                                          .   .                             -
        I                                                                                                                             T.,




        \    .
                                                   .   . ..   .   .   . ..   ,i    .                                                 :     '-..; ...
..- ,
                                UNABLE TO CARE FOR DEMWARFS MEDICAIDPSYCHIATRIC
                                PATIENTS?
                             4) WOULD THE NEEDS OF THE CHRONICALLY MENTALLY IUL-BEBETTER
                                SERVED BY HAVING A BOARD-CERTIFIED PSYCMATiUST BE THE
                                DIRECTOR OF THE HOSPITAL?
                             5) SHOULDPATIENTS (WITH  SIGMFIW BRAINDISEASE) AT DPC B E . .
                                TREATED UNDER A MEDICAL MODEL OR A SOCIAL WORK MODEL OF
                                CARE?
