30, 1989 ("1988-1989 contract"). During this term, by letter dated December 27, 1988, plaintiff was placed on probation because of poor performance, and was informed that failure to improve would result in nonrenewal of her contract for the fourth year of postgraduate work. Her probation notwithstanding, on February 27, 1989, Howard offered and plaintiff accepted an appointment as a PGY-4/CA-3 for the period July 1, 1989, to June 30, 1990 ("1989-1990 contract").
On April 26, 1989 -- two months after the PGY-4/CA-3 contract for 1989-1990 had been signed -- Dr. Olly Duckett, Chairman of the Department's Competence Committee, notified plaintiff that she would be required to repeat nine months of the PGY-3/CA-2 year, incorporating three months of general medicine, because of unsatisfactory performance. The reason Howard initially renewed plaintiff's contract for the fourth year, yet then required plaintiff to repeat the third year, is that renewal decisions generally are made several months in advance of the next contract year, which starts on July 1. Because of plaintiff's continued poor performance during the interim period, Howard decided to modify its decision.
By letter dated June 8, 1989, plaintiff requested reconsideration of the decision. By letter dated June 27, 1989, Dr. Kwesi Edusei, Chairman of the Education Committee, informed plaintiff that the Department had held a faculty meeting on June 9, 1989, and that her request for reconsideration had been denied.
As a result of the April 26, 1989, notice, plaintiff worked in general medicine from July 1, 1989, to October 1, 1989, and repeated nine months of her PGY-3/CA-2 year from October 1, 1989, to June 30, 1990.
By letter dated December 21, 1989, Dr. Melville Wyche, Chairman of the Department of Anesthesiology, informed plaintiff that she would not be offered a reappointment for the period beginning July 1, 1990, because "[her] progress in the area of anesthesia [was] minimal to nonexistent." Because of plaintiff's poor performance, plaintiff also was not given credit for her PGY-3/CA-2 year.
By letter dated May 22, 1990, plaintiff appealed her termination from the program. On May 25, 1990, a faculty meeting was held, and the faculty voted to uphold the termination. Plaintiff was informed of the decision by letter dated June 27, 1990.
B. The Deficiencies In Plaintiff's Performance That Resulted In Her Termination
The evidence at trial overwhelmingly demonstrated that plaintiff was sorely lacking in her fund of knowledge and failed to make any progress in learning. These deficiencies were demonstrated by the testimony of Department faculty members Dr. Barbara Roberts, Dr. Kwesi Edusei, and Dr. Melville Wyche; the performance evaluations; and plaintiff's standardized test scores.
The testimony of the doctors indicated that, overall, plaintiff was competent in the "technical," i.e., manual, aspects of anesthesiology, but lacked the knowledge base, judgment, and analytical skills that are required. As Dr. Wyche testified, competence in the technical aspects of anesthesia, i.e., executing the procedures, can be achieved without an adequate knowledge base. Thus, for example, nurses can and do perform many anesthesia procedures; similarly, plaintiff was allowed to perform many anesthesia procedures -- and performed them well -- despite her deficient knowledge base. However, the distinguishing characteristic of a physician -- knowledge and judgment -- were qualities in which plaintiff was significantly lacking.
The evaluations indicate that, overall, plaintiff's fund of knowledge was poor and her progress was minimal. See Defendant's Exs. 3a-3e (Evaluations of Plaintiff by Drs. Edusei, Roberts, Lim, Kulkumar, and Burruss).
The testimony of Drs. Roberts and Edusei elaborated on the problems mentioned in the evaluations. Plaintiff's fund of knowledge was deficient from her start in the program because plaintiff was not required to do the clinical base year, PGY-1 -- an erroneous decision, in Dr. Roberts's opinion. This deficiency was compounded by plaintiff's failure to do much of the required reading due to personal problems in plaintiff's home life. Specifically, plaintiff's parents-in-law were living at home with plaintiff and her husband, and, due to certain Indian customs, this living arrangement made it difficult for plaintiff to reserve an adequate amount of time for her reading, which is essential to building up a knowledge base.
In addition to performance evaluations, plaintiff's standardized test scores indicated both a severe deficiency in plaintiff's fund of knowledge and a failure to progress in her learning. Each year, the residents take a national standardized test called the in-training examination, sponsored by the American Board of Anesthesiologists and the American Society of Anesthesiologists ("ABA/ASA In-Training Exam"), an exam that prepares the residents for the certification examination administered by the ABA ("boards" or "board certification").
The ABA/ASA In-Training Exam is administered every July. The grades are returned by the following October, and are made available to the residents. When the scores are extremely low, as plaintiff's were, an attending staff physician meets with the resident to discuss the test. Howard considers these tests very important because one of the primary goals of the Department's residency program is to prepare its residents for board certification, without which it is extremely difficult to obtain an anesthesiologist position. Aside from preparation for board certification, the test also is a good indicator for measuring a resident's fund of knowledge on anesthesiology.
In 1987, plaintiff scored in the 1st percentile. That means that 98% of the other test-takers nationwide scored higher than plaintiff. Plaintiff answered 25% of the questions correctly. In 1988, plaintiff scored in the 0 percentile, which means that 99% of the test-takers scored higher than plaintiff. Plaintiff then answered 30% of the questions correctly. In 1989, plaintiff again scored in the 0 percentile. This time, she answered only 29% of the questions correctly. Dr. Wyche and Dr. Roberts explained that a low score in the first year is not cause for serious concern because it shows only that, entering the program, the resident has a low knowledge base. It does not show an inability or unwillingness to improve. However, the expectation is that the resident will learn and progress, and the scores will go up each year. When plaintiff's scores remained at essentially the same low level for in 1988, Dr. Roberts met with plaintiff to discuss plaintiff's deficiencies.
In addition to poor evaluations and poor test scores, all of which stemmed from the deficiencies in plaintiff's fund of knowledge, plaintiff demonstrated a lack of honesty which Howard considered very serious and was reflected in plaintiff's record. Dr. Roberts described one incident when plaintiff indicated on a patient's chart that plaintiff had examined the patient when, in fact, plaintiff had not conducted an examination. Dr. Edusei related a similar incident in which plaintiff lied about obtaining vital information from a patient.
On another occasion, Dr. Edusei discovered that plaintiff had lied about administering medicine to a patient in the operating room.
C. The Contract Provisions on Performance Evaluations and Nonrenewal Decisions and Howard's Implementation Thereof
In order to communicate to the residents how they were performing in the program, Howard set up a performance evaluation system and a procedure for nonrenewal of contracts. Section VIII of each of the contracts specified the following:
1. Periodic evaluations of the Postgraduate Physician's educational progress and competence shall be made in writing as the Postgraduate Physician advances in medical training. The evaluations shall be forwarded to the Department's Educational Committee.