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Surya v. Roberts

December 11, 2007

GIRIJA SURYA, PLAINTIFF-APPELLANT,
v.
ARTHUR J. ROBERTS, M.D. AND JERSEY SHORE CARDIAC SURGERY ASSOCIATES, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, L-2182-89.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 24, 2007

Before Judges A.A. Rodríguez and Collester.

Plaintiff Girija Surya appeals from the entry of summary judgment dismissing her complaint against defendants Arthur J. Roberts and Ahmad Rajaii-Khorasani for unlawful race and gender discrimination (count one), breach of contract (count two), breach of the implied covenant of good faith and fair dealing (count three), wrongful discharge (count four), intentional infliction of emotional distress (count five), and fraud (count six). We affirm in part and reverse in part.

Viewing the competent evidential materials in the light most favorable to the non-opposing party as required under Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995), the facts are as follows. Plaintiff and defendants are all board certified cardiac surgeons. Cardiac surgery falls within the realm of thoracic surgery, which embraces surgical treatment of the thorax and various organs and structures within. Cardiac surgeons must complete a thoracic residency and enter a fellowship program of one to two years in which they exclusively function in the management of cardiac cases. While cardiac surgeons are also thoracic surgeons, they generally limit their practice to heart cases and do not perform other types of thoracic surgery. Cardiac surgeons may only practice in those hospitals which have the facilities and equipment necessary for heart surgery. The Jersey Shore Medical Center (JSMC) was at all times pertinent to this appeal the only hospital in Monmouth County at which cardiac surgery was performed, and a professional corporation owned by defendants Roberts and Khorasani named the Jersey Shore Heart Institute (JSHI) had the exclusive contract for cardiac surgical services at that hospital.

In 1996 plaintiff lived in Morganville, Monmouth County with her two small children. She had her private practice in Monmouth County, and she had privileges for vascular-thoracic surgery at nearby Bayshore Community Hospital as well as at Raritan Bay Medical Center in Edison. Plaintiff had previously done her fellowship in cardiac surgery and was board certified. She had privileges for cardiac surgery at St. Michaels Medical Center in Newark.

Plaintiff wanted to practice as a cardiac surgeon in Monmouth County for personal and professional reasons. She wanted to practice her specialty in an area near where she lived because she had young children. While she had privileges as a cardiac surgeon at St. Michael's, it was uneconomical and inconvenient for her and her patients to travel to Newark. Moreover, plaintiff had a passion for cardiac surgery and was for some time the only woman board certified cardiac surgeon in New Jersey. Since the only way she could obtain cardiac surgery privileges at JSMC was with JSHI, plaintiff wanted to become employed or associated with that surgical group.

Plaintiff met Dr. Roberts in a social setting in the summer of 1996. She told him she had already had a fellowship in cardiac surgery, was board certified, and was interested in working for him. They met later at Dr. Roberts' office, and he offered her a fellowship with JSHI. He told her that everyone whom he hired to be an attending physician in cardiac surgery had to worked with him as a fellow for a year or more, and that every one who completed the fellowship with JSHI had become an attending physician with the group. Plaintiff said she told Dr. Roberts that her interest in working as a fellow would only be as a prelude to her joining the group as a cardiac surgeon. Dr. Roberts responded that after the fellowship, plaintiff would be an attending cardiac surgeon under the umbrella of the JSHI, and her status, salary, and benefits would be equal to what the physicians on the second tier of JSHI had received when they completed the fellowship. Although plaintiff had already completed a cardiac surgery fellowship and was not interested in repeating one, she agreed because she said that Dr. Roberts expressly promised her that he would offer her membership in the JSHI at the end of the fellowship, which would then enable her to practice cardio-vascular surgery at JSMC.

Plaintiff said her duties as a fellow included covering the cardiac care unit at JSMC every third night, seeing patients pre-operatively and post-operatively, and assisting in the operating room during surgery. The fellowship required her to work forty hours or more per week at a fixed salary of $44,000. Plaintiff explained to Dr. Roberts that since the salary as a fellow was low, she wanted to maintain her private practice in thoracic surgery. Dr. Roberts agreed, and plaintiff started the fellowship shortly before July 1, 1996. She said that during her one year fellowship Dr. Roberts frequently praised the quality of her work and encouraged her, leaving her to reasonably believe she would be offered the position she was promised.

Plaintiff began her fellowship without a written contract after Dr. Roberts assured her that he would "get a letter going and all that." His secretary also told plaintiff, "Don't worry about their contract, they always delay their paperwork." Plaintiff said she had numerous conversations with both defendants after she began the fellowship, and was repeatedly given verbal assurances that she would become an attending surgeon after the fellowship. However, no letter or other document was forthcoming. Since plaintiff felt she needed some writing to give her assurance that she would receive what she had been promised and nothing materialized, she told both defendants on a Friday in December 1996 that she was leaving the fellowship.

The following Sunday plaintiff got a call from Dr. Khorasani saying he was in desperate need and asked her to help him with a case. Plaintiff responded to the hospital and assisted him. Afterwards she told him she did not want to continue the fellowship unless assurances were given to her. She said that Khorasani assured her something would be done about it and that he and Dr. Roberts had talked about it. Plaintiff called Dr. Roberts that night, and he told her he did not want her to quit. She told him the $44,000 salary was inadequate because of the enormous time she was spending at the hospital. She also wanted reassurance that there would be no problem at the end of the fellowship term about her continuing with the group as an attending physician. She said Dr. Roberts offered her an increase in salary to $100,000 and once again assured her she would become an attending physician when the fellowship ended. During her year term as a fellow, plaintiff discerned that while the two defendants were the major principals in the JSHI, they were running separate practices and that there were tensions in their relationship. She thought that the delay in memorializing her agreement with JSHI was because the potential split between the two defendants.

However, she was never told that this would affect her agreement.

On January 6, 1997, after she had returned to the fellowship, plaintiff received a memorandum from Dr. Khorasani with reference to a telephone conversation earlier that day. The memorandum stated,

CONFIDENTIAL

This is to confirm our telephone conversation of this date, which was a continuation of our previous discussion initiated by a message from you. Basically, the Jersey Shore Heart Institute needs personnel, and you are interested in working with the JSHI. However, you are unhappy with the contract given you by Dr. Arthur Roberts. You mentioned that either a higher salary or a hope for future participation would make you interested in continuing your work. I told you that I have discussed this matter with Dr. Roberts and we have come to an agreement that you can continue your work as a fellow until July 1997. In June, 1997, we will form an agreement with you that will allow you to become a Junior Attending. Your professional skills can be used on a per-diem basis, and you will be paid according to the agreement that will be made.

We have discussed that the reason for this is that the JSHI needs personnel who are available full-time and available twenty-four hours a day, and since you cannot do that, perhaps this is something that will satisfy your professional needs, and also help the JSHI, in terms of emergencies and vacations.

I expect you to meet with Dr. Lawrence Wood on Tuesday at 7 a.m., and arrange for your on-call schedule and also participate in the pre-operative, operative and post-operative care of our patients.

I hope this arrangement will be acceptable to you and we will see an improvement on your part. ...


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