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Gary N. Mcabee, D.O v. the University of Medicine

June 28, 2012

GARY N. MCABEE, D.O., PLAINTIFF-APPELLANT,
v.
THE UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY SCHOOL OF OSTEOPATHIC MEDICINE, R. MICHAEL GALLAGHER, D.O., WILLIAM RANIERI, D.O., LINDA JONES-HICKS, D.O., GLORIA DURELLI, M.D., THOMAS CAVALIERI, D.O., ESTATE OF MYRON MAGEN, D.O., DEFENDANTS-RESPONDENTS, AND MICHIGAN STATE UNIVERSITY COLLEGE OF OSTEOPATHIC MEDICINE, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4512-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 8, 2012

Before Judges Lihotz, Waugh and St. John.

Plaintiff Gary N. McAbee, DO, appeals from the summary judgment dismissal of his complaint. Following his removal as chair of the Department of Pediatrics (DOP) for defendant the University of Medicine and Dentistry of New Jersey, School of Osteopathic Medicine (UMDNJ), and subsequent non-renewal of his faculty contract, plaintiff initiated this litigation contending defendant, R. Michael Gallagher, DO, Dean of UMDNJ, manipulated the review process and the resultant report that was critical of plaintiff's performance as chair of the DOP. Following our review, we affirm.

The following facts are taken from the record submitted in support of and in opposition to summary judgment, viewed in a light most favorable to plaintiff, the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). Plaintiff, a pediatric neurologist, was hired in 1996 as the chair of UMDNJ's DOP and was given a faculty position as an associate professor of pediatrics. Plaintiff's initial faculty performance evaluations revealed he was a "[s]uperior faculty [member] and administrator." On June 29, 2001, plaintiff was promoted to full professor. In plaintiff's fifth year as chair of the DOP, his performance review was less glowing. In the evaluation he achieved an overall rating of two-and-a-half out of five. That year, the review commended his scholarly pursuits and individual contributions, but identified significant problems including that he had minimally involved other faculty members in research; the DOP had not performed well on student evaluations; and the pediatric students achieved the lowest mean scores on licensing exams.

In April 2003, complying with the UMDNJ bylaws, a five-year review committee was formed to assess the DOP, including an evaluation of the chair's stewardship. The bylaws required the review committee to consist of "a Chair from the clinical chairs, 2 members of the department, an outside reviewer and a Dean" to chair the review committee. Dean Gallagher appointed the named individual defendants as members of the review committee: Thomas Cavalieri, DO, as chair representative; Linda Jones-Hicks, DO, and Gloria Durelli, DO, as members from the DOP; Myron Magen, DO, as an outside reviewer; and William Ranieri, DO, as chair of the committee. The informal guidelines stated all members of the DOP, including the chair, students, interns, other department chairs, and other deans of UMDNJ were invited to present their views before the review committee.

The review committee held two meetings; considered input from varied sources, including the dean of research, the DOP administrator, the dean of academic affairs, plaintiff as chair of the DOP, the dean of UMDNJ, and the chief financial officer; and received information from joint meetings with other departmental chairs, the DOP faculty, and student leadership. Dr. Ranieri authored the "Pediatric Stewardship Review Report" (DOP report) and submitted it to Dean Gallagher.

The DOP report commended plaintiff on his many publications over the prior three years and for development of the DO/JD program. The DOP report also enumerated flaws in plaintiff's performance as chair, including: (1) the lack of general leadership coupled with no evidence of a definitive hierarchy within the DOP; (2) recent research efforts and clinical trials were insufficient and lacked innovation; (3) the lack of coordination of the efforts of members of the DOP and uneven communication with them, which created a concern over teamwork;

(4) the DOP'S lack of public accessibility; (5) the chair's lack of a clear plan for effectuating a necessary restructuring of the clinical program; (6) an unacceptable favoritism for Cooper Hospital and lack of attention to other affiliate hospitals; and

(7) the lack of long-range and strategic planning. The report concluded: "The committee's impression is that [plaintiff] is a competent and intelligent physician with many skills who is not a 'hands on' Chair. He has not been able to implement or articulate a plan to secure the department's long-term growth, development or survival."

Plaintiff challenged the overall integrity of DOP report, maintaining it was flawed in its composition, process, and conclusions. He submitted a memorandum of disagreement challenging the failure to allow his input, stating the committee held two meetings in "a crowded and noisy restaurant," akin to a social meeting, and maintaining he should have been afforded a private meeting with Magen, the independent outside reviewer.

Plaintiff challenged any conclusion in the DOP report that he exhibited a lack of commitment or leadership. He asserted he had transformed the DOP's clinical focus to make it a research unit. The committee was not fully informed of his future plans because it merely sought a brief summary of his future objectives rather than the detail of his vision for the DOP. Plaintiff attributed the DOP's difficulties to a lack of funding and limited full-time faculty, not his stewardship. Finally, he outlined the information he would present on each point, if given the opportunity.

Effective May 20, 2003, UMDNJ's Board of Trustees removed plaintiff as chair of the DOP and returned him to faculty status. The following month, Dean Gallagher informed plaintiff his faculty contract, which was set to expire on June 30, 2004, would not be renewed.

On May 19, 2005, plaintiff filed his nine-count complaint alleging breach of contract and the covenant of good faith and fair dealing; tortious interference with contract and prospective economic advantage; and civil rights violations under 42 U.S.C.A. § 1983. Plaintiff maintained UMDNJ's Finance Committee had recommended the elimination of the DOP prior to the creation of the review committee. He insisted the committee's real purpose was to effectuate the closure of the DOP. Further, he alleged the members of the five-year review committee were chosen by Dean Gallagher because each held a bias against him. For example, plaintiff challenges the objectivity the review committee's members, stating: Ranieri had removed the DOP's full-time administrator, over plaintiff's vigorous objection, six months prior to the committee review and did not consult the past administrator regarding plaintiff's performance as chair; Ranieri and Cavalieri were members of UMDNJ's finance committee, which recommended the DOP be eliminated; Durelli had previously been told by plaintiff to increase her productivity by working evenings and weekends; Jones-Hicks was under investigation regarding possible inflated reimbursements requests, which had been initiated by plaintiff; and alleged another doctor claimed, prior to the five-year review, she was promised to be the next DOP chair.

Defendants moved for summary judgment, maintaining plaintiff's contract claims be dismissed because he served as chair at the pleasure of Dean Gallagher and his faculty contract expired. Alternatively, defendants argued plaintiff failed to comply with the notice requirements of the Contractual Liability Act, N.J.S.A. 59:13-1 to -10. Regarding plaintiff's tort allegations, defendants argued there was no proof of a conspiracy and no proof of malice. Moreover, plaintiff failed to file a notice required by N.J.S.A. 59:8-3 of the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3. Finally, defendants asserted any civil rights claims were time barred and plaintiff failed to allege facts to show a deprivation of liberty or property interest.

The motion judge granted summary judgment to all defendants as to all claims. He agreed the failure to provide the statutory notices barred plaintiff's contract and tort claims. Further, he concluded plaintiff had not established ...


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