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Elkharwily v. Mayo Holding Co.

United States Court of Appeals, Eighth Circuit

May 20, 2016

Alaa E. Elkharwily, M.D., Plaintiff - Appellant
Mayo Holding Company; Mayo Clinic Health System-Albert Lea; Mayo Foundation; Mark Ciota, M.D.; John Grzybowski, M.D.; Dieter Heinz, M.D.; Robert E. Nesse, M.D.; Steve Underdahl; Stephen Waldhoff, Defendants - Appellees

         Submitted November 19, 2015.

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[Copyrighted Material Omitted]

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          Appeal from United States District Court for the District of Minnesota - Minneapolis.

         Alaa E. Elkharwily, M.D., Plaintiff - Appellant, Pro se, Rochester, MN.

         For Alaa E. Elkharwily, M.D., Plaintiff - Appellant: Richard Thompson Wylie, WYLIE LAW FIRM, Minneapolis, MN.

         For Mayo Holding Company, Mayo Clinic Health System-Albert Lea, Mayo Foundation, Mark Ciota, M.D., John Grzybowski, M.D., Dieter Heinz, M.D., Robert E. Nesse, M.D., Steve Underdahl, Stephen Waldhoff, Defendants - Appellees: Charles Godwin Frohman, David T. Schultz, MASLON LLP, Minneapolis, MN; Joanne L. Martin, MAYO CLINIC, Legal Department, Rochester, MN.

         Before SMITH, BYE, and BENTON, Circuit Judges.[1]


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          PER CURIAM.

         Alaa E. Elkharwily, M.D., sued Mayo Holding Company, Mayo Clinic Health System-Albert Lea (the Clinic), Mayo Foundation, and Mayo staff[2] (collectively Mayo) for wrongful employment termination and retaliation. The district court[3] granted Mayo's motion to dismiss in part and its later motion for summary judgment, while denying Dr. Elkharwily's motion for reconsideration and motion for additional time for discovery. Dr. Elkharwily appeals. We affirm.


         Dr. Elkharwily, a medical doctor certified in internal medicine, worked as a hospitalist at the Clinic from September 7, 2010, to December 10, 2010. As a hospitalist, his job duties included providing care for admitted patients and refining the " hand-off" process for patients released to the care of their primary providers after hospitalization ended. Dr. Elkharwily reported directly to Dr. Dieter Heinz, Chair of the Division of Medicine, and indirectly to an administrative team including Dr. Mark Ciota, Dr. John Grzybowski, Steve Underdahl (Hospital Administrator), and Lori Routh (Nurse Executive).

         Under Clinic policy, new employees-including Dr. Elkharwily-are on probationary status for 90-days and evaluated in writing before the 90th day. At the end of this period, the evaluators recommend either continued employment, extension of probation, or termination. Dr. Elkharwily also participated in Minnesota's Health Professionals Service Program (HPSP) while employed at the Albert Lea Clinic because he suffers from bipolar disorder. This program required a work-site monitor to supervise Dr. Elkharwily and submit quarterly reports assessing his job performance. His work-site monitor at the Clinic was Dr. Ciota.

         The Hospital Administrator evaluated Dr. Elkharwily's job performance for his 90-day review. The Administrator solicited information from hospital administration, nursing staff, physician leadership, and physician colleagues about Dr. Elkharwily's job performance, detailing the staff's concerns in a November evaluation: difficulty organizing and prioritizing his work; unreachable to staff; adversarial, resistant to admitting patients, and unnecessarily generated work for the emergency departments; untrusted by the nursing staff for his instructions or interpretation of events; incorrectly informing nursing staff that his contract limits the number of patients he is required to care for to twelve; and difficulty timely completing documentation. Despite these concerns, the Hospital Administrator and Dr. Elkharwily's direct supervisor extended Dr. Elkharwily's employment probationary period by 90 days. As part of the evaluation, the Hospital Administrator and direct supervisor planned to discuss the evaluation with Dr. Elkharwily shortly after its completion.

         Simultaneously, Dr. Ciota prepared Dr. Elkharwily's confidential HPSP report. Dr. Ciota interviewed five nursing supervisors about his job performance. Although

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the Hospital Administrator did not interview these supervisors, their answers reflected many of the same concerns as the evaluation. Dr. Elkharwily did not answer calls and was difficult to locate, had very poor organizational skills, did not see patients in a timely manner, frequently challenged patients' end-of-life choices, became easily frustrated, did not always provide an accurate interpretation of events, and became difficult to work with when feeling overworked. Dr. Ciota sent the HPSP report Minnesota on December 6, 2010.

         Before the Hospital Administrator and direct supervisor could discuss the evaluation results with Dr. Elkharwily, the following events took place. On December 7, Dr. Elkharwily gave an order to a nurse to give a patient intravenous (IV) Tylenol. The nurse questioned Dr. Elkharwily because she had never heard of IV Tylenol. Dr. Elkharwily insisted he had given IV Tylenol to a patient two days earlier. The nurse contacted the hospital pharmacist, who verified the formulary did not carry IV Tylenol.

         The next day, a nursing supervisor reported the incident to the Nurse Executive, Lori Routh. She and the Hospital Administrator discussed the events with Dr. Elkharwily. Dr. Elkharwily reiterated that he believed IV Tylenol was available at the Albert Lea Clinic formulary because he had administered it to a patient a few days earlier. The Administrator explained that IV Tylenol was not available in the formulary. Dr. Elkharwily immediately changed his story stating, " It would have been the right medication to use had it been available."

         In light of the inconsistent responses, the Hospital Administrator and Nurse Executive were concerned about patient safety and Dr. Elkharwily's overall trustworthiness. The Clinic placed Dr. Elkharwily on paid administrative leave pending further investigation. The Hospital Administrator and Nurse Executive interviewed nursing staff to assess Dr. Elkharwily's patient safety. The interviews matched the concerns in his 90-day evaluation and HPSP report, including that he was disorganized, dishonest, difficult to reach while on duty, and difficult with patients.

         On December 10, the Hospital Administrator outlined his concerns about Dr. Elkharwily's job performance to Dr. Grzybowski. The Administrator concluded, " Based on the volume and magnitude of concerns about Dr. Elkhawily and his performance as a hospitalist, it appears that a majority of team members have lost confidence in his ability and are very pessimistic about his ability to improve."

         Later that day, after consulting with in-house counsel, the Clinic's administrative team recommended Dr. Ciota end Dr. Elkharwily's employment or permit him to resign in lieu of termination. Dr. Ciota agreed. Members of the administrative team and the Director of Human Resources and Staff Development, informed Dr. Elkharwily of the decision to end his employment. ...

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