
USCA1 Opinion

	




                                 NOT FOR PUBLICATION                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1390                             SYED M. ZAFAR, M.D., Ph.D.,                                Plaintiff, Appellant,                                          v.                           ROGER WILLIAMS GENERAL HOSPITAL,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Stahl, Circuit Judges,                                       ______________                     Aldrich and Campbell, Senior Circuit Judges.                                           _____________________                                 ____________________            Bruce Hodge for appellant.            ___________            William P. Robinson III with whom Stephen M. Prignano and  Edwards            _______________________           ___________________      _______        and Angell were on brief for appellee.        __________                                 ____________________                                   January 13, 1994                                 ____________________                      CAMPBELL,  Senior Circuit Judge.  Dr. Syed M. Zafar                                 ____________________            filed  suit  in  1990 alleging  that  Roger  Williams General            Hospital ("the Hospital") had broken its contract with him by            failing  to  provide  him with  a  medical  residency program            approved  by the  Accreditation Council for  Graduate Medical            Education  ("ACGME"), by failing  to certify to  the American            Medical   Association  ("AMA")   that  he   had  successfully            completed  a one-year  internship in  such a program,  and by            failing to provide certain procedural rights due to him under            the contract.    After  a  bench  trial,  the  United  States            District Court for the District of Rhode Island found for the            defendant Hospital.  Dr. Zafar appeals, and we affirm.                                          I.                                          I.                      In  July 1983, the  Hospital and Dr.  Zafar entered            into a written agreement whereby Dr. Zafar agreed to serve as            a "rotating intern" for one  year, at the first  postgraduate            year level.  Zafar agreed, inter alia, "to develop a personal                                       _____ ____            program  of   self  study  and   professional  growth,"   "to            participate  in  safe,  effective and  compassionate  patient            care," and "to adhere  to established practices,  procedures,            and policies of the Hospital . . . ."                      In  return,  the  Hospital agreed  to  provide:  "a            suitable  environment for  medical  education experience";  a            training program accredited  by the ACGME; and  "a mechanism,            with  appropriate  due  process safeguards,  whereby  actions                                         -2-            which  impact  upon  the   Resident's  status  and/or  career            development may be addressed."                      The agreement  stated  that the  parties  could  be            released  from  their  "ethical  and  legal  obligations"  to            fulfill  their responsibilities under the agreement if either            of   two  conditions  occurred:    first,  if  the  "Resident            Physician"  for  reason  of  illness  or  "other  good  cause            acceptable  to the Hospital"  could not continue;  second, if            "in the judgement of  those responsible for the  Program, the            Resident Physician,  following timely notice  and opportunity            to  be heard,  has failed  to perform  and discharge  his/her            responsibilities in acceptable manner . . . ."  In the latter            case,  the agreement would terminate "only after recourse, if            so  desired by  the  Resident Physician,  to the  Due Process            mechanism" earlier referred to in the agreement.                      Although  this  agreement was  modeled on  the form            contract  used for other resident physicians at the Hospital,            the agreement with  Dr. Zafar  was altered  in several  ways.            For example,  Dr. Zafar was  not to receive any  salary, life            insurance,  disability  insurance,  or vacation.    Dr. Zafar            agreed to  such limitations  apparently because  he had  been            late in applying for internship positions, and had gained the            position  at the  Hospital  only after  a  friend, Dr.  Naeem            Saddiqui, helped him gain an entr e by introducing him to Dr.            William Klutz, the  chairman of the Hospital's  Department of                                         -3-            Surgery at the  time.  Dr. Zafar's situation  was unique also            in that he  expected to be at the Hospital for only one year,            instead of the usual three year period for most residents.                      Soon after executing the agreement, Dr. Zafar began            his  internship  at the  Hospital.    He  was placed  in  the            internal medicine  program, which  at the  time was the  only            ACGME-approved residency program  at the Hospital.   He began            making  rounds with  the  other  residents  in  the  internal            medicine program.                      Shortly after Dr. Zafar began performing  duties as            a medical  intern, his  supervisor, a  Dr. Burtt,  learned of            several  highly  critical evaluations  of  Dr. Zafar's  work.            After  some  investigation,  Dr.  Burtt  recommended  to  the            assistant director of the residency program that Dr. Zafar be            taken off  of medical service.   Dr. Burtt  also went to  Dr.            Klutz, as he had been responsible for bringing Dr. Zafar into            the  program.   Dr.  Burtt  explained to  Dr.  Klutz that  he            believed Dr. Zafar was not competent to serve in the internal            medicine  program and that the Hospital would have difficulty            graduating him from the program.  He suggested that Dr. Zafar            be rotated to the department  of surgery for the remainder of            the year.                      According to Dr. Klutz's contemporaneous notes,  he            met with Dr. Zafar  on October 7, 1983.   Dr. Klutz  informed            Dr. Zafar that  he had received an  unsatisfactory evaluation                                         -4-            and stated that Dr. Zafar had the option of either seeking an            appointment to another hospital or moving into the department            of  surgery.   According to  Dr.  Klutz, Dr.  Zafar chose  to            transfer  to surgery  within  a  few days  of  the October  7            meeting.                      At trial, Dr.  Zafar testified that he did not meet            with Dr.  Klutz in  October, 1983, and  that Dr.  Klutz never            told  him of any  poor performance evaluations  nor discussed            with him the possibility of  leaving the Hospital.  Dr. Zafar            testified  that  Dr.  Klutz  did  inform  him  he  was  being            transferred to the department of  surgery, but had offered no            explanation for the  transfer.    Moreover, according to  Dr.            Zafar, Dr. Klutz did not  notify him of his imminent transfer            until late November, 1983.    Dr. Zafar  also testified  that            in late November he received a copy of a memo from a Dr. Vito            in the  department  of surgery  that  was addressed  to  head            nurses and operating room personnel.  The memo explained that            Dr. Zafar would begin "covering" the surgical patients of Dr.            Vito and three other physicians, and would be responsible for            making  daily rounds on those patients and "entering progress            notes and writing  orders as necessary."  Dr.  Zafar was also            to  be  "available  to answer  questions  concerning  patient            management."                      Dr.  Zafar  admitted  to  having  known   that  the            Hospital  did not have an ACGME-approved residency program in                                         -5-            surgery.  Nevertheless,  Dr. Zafar never inquired  whether he            would receive credit nor did he invoke the due process rights            mentioned  in the  contract.   He  finished the  year in  the            department of surgery and thereafter left the hospital.                       Subsequent  to his  departure, Dr. Zafar  began the            process of applying for medical  licensure in New Jersey.  In            July of  1984, the  Hospital sent to  the New  Jersey medical            licensing  authority a certificate stating that Dr. Zafar had            successfully completed a one-year "mixed internship" approved            by the AMA.  Sometime during 1989, however, Dr. Zafar learned            that  AMA records  did not  show him  as having  completed an            approved  program at the Hospital.  After some correspondence            with the Hospital, Dr. Zafar filed suit in 1990 alleging that            the Hospital had breached the July 1983 agreement  by failing            to certify to  the AMA that he had  successfully completed an            approved medical internship.                      The case was tried  without a jury in February  and            March, 1993.  After the plaintiff's  case, the district court            found  that  Dr.   Zafar  did  not  complete   an  accredited            internship  and  was  therefore  not  entitled  to  have  the            Hospital certify that he did.   The district court found that            the  Hospital's   own  representations  in  the   New  Jersey            certificate  had been in error and  that it was "unfortunate"            that the certificate had been sent.                                         -6-                      The district court went on to hear more evidence on            the issue  of whether  Dr. Zafar was  denied the  due process            rights guaranteed him under the contract.  After hearing  all            the evidence,  the district  court found  that Dr.  Zafar had            received  actual notice of his poor  performance, that he had            the  opportunity  to pursue  the  matter and  to  contest the            allegations if he had so  chosen, and that he had  chosen not            to do  so.   The court  concluded that  the Hospital  had not            violated any terms of the contract with Dr. Zafar.                      We affirm.                                         II.                                         II.                      On appeal, Dr.  Zafar no longer  argues that he  is            entitled to  have the Hospital  certify that he  completed an            ACGME-approved internship.  He argues that the Hospital broke            its agreement  with him by  failing in the first  instance to            provide  an  approved  program, or,  in  the  alternative, by            failing to  afford due process before transferring him out of            the  internal medicine residency, which was the sole approved            program.                      Dr. Zafar's first argument, that the Hospital broke            the agreement  by failing  to provide  an approved  residency            program, is undercut  by Dr. Zafar's concession  that when he            began his  internship at the  Hospital he was in  an approved            _____            program.  He  seeks to counteract this by  asserting that the            Hospital  had enrolled  him in  a  unique one-year  "rotating                                         -7-            internship"  that began  in an  approved  program (i.e.,  the                                                               ____            internal medicine internship) but that required him to rotate            among  various unaccredited  departments, including  surgery.            He  argues that  this  "rotating  internship"  would  not  be            accredited,  and that the  Hospital, therefore, was  from the            start in  breach of  its agreement  to furnish an  accredited            program.                      Dr. Zafar's argument is essentially factual and was            resolved against  him by the  district court.  We  cannot say            the court committed clear error in not finding that Dr. Zafar            had been enrolled  in some new, hybrid program  for which AMA            credit was unavailable even had he successfully completed it.            To be sure, both Dr. Klutz and Dr. Calabresi, the chairman of            the  Department of Medicine  at the Hospital  during 1983-84,            testified that they had expected Dr. Zafar to rotate to other            specialties during  his  time at  the  Hospital.   There  was            substantial  evidence, however,  that  rotation was  possible            within  the approved internal medicine program and could have            been  accomplished while receiving full credit.  According to            the Policies and Procedures of the American Board of Internal            Medicine,  which were admitted  as evidence at  trial, twelve            months of credit  can be received for  the first postgraduate            year of training  if the resident spends at  least six months            in   internal  medicine  and  an  additional  two  months  in            pediatrics,  dermatology,  neurology, and/or  emergency  room                                         -8-            care.   The  remaining four  months can  be spent  in another            specialty, such as  surgery.  This, apparently,  explains the            use of  the term "rotating  intern"    in fact,  according to            the Policies and  Procedures, the first year  of postgraduate            training  in  internal   medicine  was  called   a  "rotating            internship."   Both Dr. Calabresi  and Dr. Klutz testified to            an accredited "rotating" program of this type.                      The  district  court  found   that  Dr.  Zafar  was            switched to the unaccredited program only when his supervisor            in the approved internal medicine program determined that his            work was so  unsatisfactory that he should not  be allowed to            continue  in it.   Dr.  Zafar  was thus  forced to  leave the            critical internal  medicine component  short of the  required            six months minimum necessary to receive credit, and without a            satisfactory record.  This was allowed by the contract, which            expressly authorized the Hospital to drop Dr.  Zafar from the            accredited program  if he  "failed to  perform and  discharge            his[] responsibilities  in an acceptable  manner"    assuming            proper  notice and opportunity  to be heard,  and recourse to            the  due  process mechanism  if  so  requested, infra.    The                                                            _____            district  court was justified in finding, therefore, that the            Hospital was not in breach of its contract from the start for            failure ever to have offered an accredited program.                      Dr.  Zafar's second argument  is that  the Hospital            violated the  agreement by  denying him  his contractual  due                                         -9-            process  rights at  the time  he was  transferred out  of the            approved  program.    He  argues that  the  Hospital  had  no            "mechanism,"  as required by the contract, to redress actions            that would  affect the residents'  careers.  Also,  Dr. Zafar            suggests  that the Hospital broke the  contract by failing to            provide  him with adequate  notice of his  subpar performance            and  of the  fact that the  shift to surgery  would result in            critical alterations in his intended career development.                      The  district  court  considered  these points  and            rejected them.  The court found  as a fact that a  "mechanism            was  in place"  for Dr.  Zafar  to exercise  his due  process            rights.   This mechanism was outlined in  a document entitled            "Due  Process  For  Resident Physicians,"  which  Dr. Zafar's            counsel  introduced  at  trial  and  quoted  in  his  closing            argument.  This document specifically refers to the provision            in the  generic contract  used for  resident physicians  (and            used  in  modified   form  for  Dr.  Zafar)   containing  the            requirement for providing a mechanism for due process.  We do            not  think it  was  clear  error for  the  district court  to            conclude that such a mechanism existed.                      The  Hospital  was  not  required,  however,  as  a            condition to dropping Dr. Zafar from the approved program, to            automatically engage  the elaborate  due process  protections            spelled out in "Due Process For Resident Physicians."  By the            terms  of the agreement, the due process "mechanism" required                                         -10-            by the agreement  to "address" actions taken by  the Hospital            would  came  into  play  only if  "desired  by  the  Resident            Physician."   Dr. Zafar  never announced such  a desire.   He            admitted  at trial  that he  knew he  had due  process rights            available to him under the contract but that he never invoked            those rights.                      Since  Dr.  Zafar  never invoked  the  due  process            mechanism  mentioned in the contract, his argument is limited            to the contention that he  did not receive the "timely notice            and opportunity  to be  heard" that under  the contract  must            precede  a determination by those responsible for the program            that  he failed  to perform acceptably.   The  district court            heard extensive  testimony on this  point and found  that the            Hospital had satisfied its duties under this clause.                       This might have  been a close  issue on the  facts.            None of the  doctors at the Hospital, including  Dr. Klutz or            Dr.  Calabresi, testified to having told Dr. Zafar explicitly                                                               __________            that upon his early transfer  to surgery he would not receive            credit for completing  an ACGME-certified internship.   To be            sure, Dr.  Zafar admitted that  he knew the Hospital  did not            have  an accredited  residency  program  in  surgery.    This            admission  was  perhaps  not damning  to  his  case, however,            because there was evidence, supra, that Dr. Zafar  might have                                        _____            rotated to surgery  at some later point within the accredited            "rotating  internship" for  which  he originally  contracted.                                         -11-            Arguably,  Dr. Zafar misunderstood the import of his enforced            transfer to surgery and underestimated the seriousness of his            situation.                        Nonetheless, the  contract did not  require written            notice,  and the  district  court found  that  Dr. Zafar  had            orally received  "actual notice"  of his  predicament at  the            October 7,  1983, meeting with Dr.  Klutz.  As  a result, the            court  found  that  Dr.  Zafar  was  properly  "charged  with            knowledge" of his situation, and that  "he had an opportunity            for discussion and  for hearing to contest  those allegations            if  he  wanted to  pursue that  matter, and  he chose  not to            pursue   that  avenue."    These  findings  are  sufficiently            supported by the evidence.  Dr. Zafar admitted that there had            been questions about his performance, and Dr. Klutz testified            that   he   told   Dr.  Zafar   his   evaluations   had  been            unsatisfactory and that he believed  that Dr. Zafar knew  the            seriousness of his situation.   Dr. Zafar also stopped  doing            rounds with the  residents in the approved  medicine program.            Moreover, Dr. Zafar  received the memo from Dr.  Vito that he            would be transferring to surgery,  when he had expected to be            in internal  medicine for at  least six months and  knew that            surgery was not accredited.                      It  is  significant  that  Dr.  Zafar's   testimony            directly contradicted that of Dr. Klutz, leaving the court               upon  believing Dr. Klutz    with understandable doubts about                                         -12-            Dr.  Zafar's credibility  generally.    The district  court's            findings rested, in  significant part,  on determinations  of            the credibility  of the witnesses, for which  we are required            to give "due regard."  Fed. R. Civ. P. 52(a).   In discussing            the crucial October 7 meeting between Dr. Zafar and Dr. Klutz            (which Dr.  Zafar essentially  denied ever  took place),  the            district  court stated: "Doctor  Klutz has his  notes of that            meeting and  I believe his  testimony as to what  occurred at            that meeting."  The court said that it was                      satisfied  that  Doctor Klutz's  testimony  is                      accurate  and at  that meeting  on October  7,                      1983, Doctor  Klutz told the  plaintiff of his                      unsatisfactory  evaluation in  the same  terms                      that Doctor Burtt had related to Doctor Klutz,                      and that  he told him  of the options     that                      the  plaintiff, at that  point, was not  to be                      kept  in the accredited program and he had two                      choices.   He  could  seek  an appointment  to                      another  Hospital  or  he could  go  on  to an                      internship   in   surgery    which,   by   the                      plaintiff's  own testimony, he knew was not an                      accredited program.            The  district court  also stated  that it was  convinced that            "Dr. Klutz told [Dr. Zafar]  that he ought to talk  to Doctor            Burtt" about  his negative  evaluations, but  that Dr.  Zafar            never did so.                      The judge contrasted the believability of Dr. Klutz            with that of Dr. Zafar:                      It's obvious what the plaintiff was doing                      here   during   his  testimony   at   the                      beginning of this case.  He was trying to                      convince the Court that he was blissfully                      ignorant of what was going on around  him                      at the time; that  he didn't realize that                                         -13-                      those  in the  internal medicine  program                      were dissatisfied with his performance to                      the point  of  expelling  him  from  that                      program. . . .    The   attempt   of  the                      plaintiff to portray this ignorance . . .                      is disingenuous, and that's as polite  as                      I can make it.                      Based  on  these   credibility  determinations  and            factual findings, the district court concluded that Dr. Zafar            had  received actual notice  and had received  an opportunity            for discussion  of his performance.   This resolution  of the            evidence is not clearly erroneous.   See Anderson v. Bessemer                                                 ___ ________    ________            City, 470 U.S. 564, 574 (1985).            ____                      Dr.  Zafar also argues cursorily that he was denied            constitutional  due process rights.  The district court found            that the due process mechanism in the contract did not import            constitutional  standards.  Especially as the Hospital is not            a  state  actor, we  accept  that  conclusion.    See,  e.g.,                                                              ___   ____            National  Collegiate  Athletic Ass'n  v. Tarkanian,  488 U.S.            ____________________________________     _________            177, 191 (1988).                      Affirmed.  Costs to appellee.                      ________   _________________                                                      -14-
