Surgeon Plausibly Alleged Discrimination Claims Based on “Sham Peer Review”

In Bhanusali v. Orange Regional Medical Center, the Second Circuit (in a Summary Order issued July 16, 2014) vacated the district court’s dismissal of plaintiff’s age, national origin, and race discrimination claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

Plaintiff, an Asian Indian-American orthopedic surgeon, alleged in his complaint that various doctors “conspired in a ‘sham peer review’ to deny [him] promotion, advancement opportunities, medical privileges, and clinical contracts.”

The Second Circuit held:

[T]he District Court did err in dismissing Bhanusali’s claims of discrimination at the motion to dismiss stage. Bhanusali alleged that he received peer reviews or was disciplined for surgeries that resulted in neither patient complaints nor negative patient outcomes. In comparison, he alleged that younger, white physicians at the same medical facility who engaged in conduct that caused significantly worse outcomes for patients, including death, avoided any peer review or discipline. On a motion to dismiss, drawing all reasonable inferences in Bhanusali’s favor, we conclude that these allegations suffice to plausibly support an inference of discrimination.

The court, however, agreed with the district court’s dismissal of plaintiff’s antitrust allegations – namely, “harm to the marketplace and the existence of defendants’ conspiracy to engage in an ‘unlawful group boycott'” – as “conclusory and implausible.”

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