HLD, v. 30, n. 4
U.S. Court In Pennsylvania Dismisses Physician's Breach Of Contract
Action Against Certification Board
Dwight E. Hand, a licensed physician in California, applied to
the American Board of Surgery (Board) for a specialist certificate in surgery.
To obtain certification, applicants must pass both a written and an oral examination.
The written component is a one-day, multiple-choice examination to test general
surgical principles. The oral component consists of three, thirty-minute interviews
with teams of examiners who test the candidate's surgical judgment and problem-solving
abilities. Applicants have five attempts to pass the written examination and
three attempts to pass the oral examination. Candidates that fail these attempts
must fulfill additional educational requirements and wait a year before retesting.
Hand passed the written examination, but failed all three of his attempts to
pass the oral examination. Several weeks later, Hand requested an individualized
critique of his performance. The Board's Executive Director prepared the critique
based on notes and the tapes of Hand's examiners. According to Hand, inconsistencies
existed between his notes and the critique of the third examination. Pursuant
to its internal policy, the Board destroyed the notes and tapes of Hand's examination
ninety days after the session. On June 9, 2000, Hand challenged the examination
results. The Credentials Committee reviewed the challenge but declined to void
the results. The Board also conducted, at Hand's request, an informal and formal
hearing, reaching the same conclusion as the Credentials Committee. Hand sued
the Board in federal district court for breach of contract, claiming that the
Board "affirmatively misrepresent[ed]" the results of its examination, and "fail[ed]
to comply with its own by-laws and appeals procedures" by having the Credentials
Committee, rather than the Examination Committee, review his results. The Board
moved for summary judgment.
The U.S. District Court for the Eastern District of Pennsylvania
granted the Board's motion for summary judgment. In rejecting Hand's claim of
"affirmative misrepresentat[ion]" on the part of the examiners, the court
noted Hand's failure to introduce any evidence of how the critique differed
from his experience in the examination. The court also rejected Hand's contention
that the Board hampered the appeal process by destroying the notes and tapes
of the examination, noting no contractual provision requiring the Board to maintain
those materials. Moreover, the court said, the Board's established practice
is to recycle notes and tapes ninety-days after the examination. According to
the court, Hand "cannot now bring a claim against the Board for breach of contract
when the Board followed its rules and he was the party who failed to timely
initiate the required process."
Turning to Hand's second claim that the Board violated its own
by-laws by initially referring the matter to its Credentials Committee, the
court found "no evidence [Hand] suffered prejudice" as a result of this action.
Thus, the court concluded, Hand failed to establish a causal connection between
the Board's breach and his damages, an essential element in a breach of contract
claim. Accordingly, the court granted summary judgment to the Board.
Hand v. The Am. Bd. of Surgery, Inc., No. 01-2172 (E.D.
Pa. Feb. 14, 2002) (11 pages).