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U.S. Court In Pennsylvania Dismisses Physician's Breach Of Contract Action Against Certification Board


HLD, v. 30, n. 4 (April 2002)

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).

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