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Delaying surgeon’s return due to PTSD didn’t violate ADA, but nonrenewal may have

By Harold S. Berman J.D.

A physician who took short-term disability leave due to post-traumatic stress disorder (PTSD) after her young son was hit by a car failed to show that her employer’s requirement that she have an independent medical exam and its delay in letting her return to work (due to patient safety concerns) violated the ADA or state law. However, the federal district court in Pennsylvania denied the employer’s motion for summary judgment on her disability discrimination claims concerning the eventual non-renewal of her contract (Engle v. Physician Landing Zone, March 14, 2017, Kearney, M.).

Surgeon suffers emotional trauma. The general surgeon worked for a physician group under a two-year contract. In April 2013, the surgeon’s eight-year-old son was hit by a car and critically injured, which overwhelmed her emotionally. In mid-May, she applied for short-term disability leave, which the employer granted for approximately three months.

Independent medical examination. In August, the employer requested the surgeon have an independent medical examination by a psychiatrist. The psychiatrist concluded the surgeon suffered from PTSD caused by her son’s injuries and that her condition prevented her from operating on patients safely because of her flashbacks and other concentration issues. The psychiatrist also found her current treatment inadequate and predicted her return to work within six to twelve months.

Delayed return to work. Her employer delayed her return, requiring she first obtain clearance from her long-time psychiatrist. Though he met with her in September and fully released her, the employer told the surgeon the “evidence” did not support her return. Her disability leave was extended through mid-November. Noting his 16-year history treating the surgeon, the psychiatrist stated that she had fully recovered and was competent to resume her duties. Although the employer’s psychiatrist reviewed the surgeon’s psychiatrist’s materials, he remained unconvinced and reiterated his belief that the surgeon needed treatment for PTSD. The employer consequently did not allow her to return to work.

Dispute over medical opinions. The employer insisted she provide a record of PTSD treatment, and the surgeon questioned the employer’s psychiatrist’s PTSD diagnosis. She refused to be evaluated again by the employer’s psychiatrist, believing he was biased, but agreed to see a third-party psychiatrist to resolve the issue.

Third-party psychiatrist evaluation. In early 2014, a third-party psychiatrist found the surgeon had no psychiatric issues preventing her from safely performing surgery, and released her to return to work. He also disagreed with the PTSD diagnoses. In light of this new report, the employer allowed the surgeon to return, but it did not advertise her as much as other general surgeons, and did not put her office with the other general surgeons.

Contract not renewed. In June, the employer notified the surgeon it would not renew her contract, but raised the possibility of a different employment relationship. It also told her it could not justify her salary based on her productivity, which she disputed. It was also disputed whether they discussed a salary reduction. The surgeon filed suit for disability discrimination and retaliation under the ADA and state law.

Discrimination: delayed return. The court granted summary judgment against the surgeon’s discrimination claim based on the employer’s failure to return her to work. She did not make a prima facie case because the employer showed she posed a direct threat to patient safety. The employer’s psychiatrist concluded the surgeon was disabled and could not perform surgery safely. Although a third-party psychiatrist found the surgeon did not suffer from PTSD, that was months later. The employer relied on its psychiatrist’s reasonable medical judgment, and was not obligated to give more weight to the contrary opinion of the surgeon’s psychiatrist when determining her disability status.

Discrimination: non-renewal of contract. The court denied summary judgment on the discrimination claims to the extent they were based on the decision not to renew the surgeon’s contract. There were triable questions concerning the employer’s stated financial reasons for not renewing her. She also provided evidence that the employer did not consider all materials concerning her productivity, including a relevant binder the employer refused to review. It was also disputed whether the surgeon and employer discussed a salary reduction.

Retaliation claims also proceed in part. The retaliation claims, which asserted that the employee’s delayed return and nonrenewal were retaliation for her having filed a lawsuit against a related healthcare organization, also survived in part. The claim based on her delayed return to work failed because the decision was based on patient safety concerns and she did not show pretext. However, the court denied summary judgment on the retaliation claim based on the employer’s decision not to renew her contract, as it was disputed whether the employer considered all relevant information regarding her productivity and whether a new contract with a salary reduction was discussed.

Retention of patient information not a defense to liability. The court rejected the employer’s argument that, as a defense to its liability for discrimination and retaliation, it would have fired the surgeon had it known earlier that she retained confidential patient records (it learned of this during discovery). After-acquired evidence of employee wrongdoing was not a defense to liability; it could only potentially limit available remedies if the wrongdoing was severe enough.