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Surgeon says he relied on job promise

A cardiac surgeon who closed his Alabama practice to move to Virginia can try his claim against the hospital he thought had hired him as its new chief cardiac surgeon.

Earlier this month, the 4th U.S. Circuit Court of Appeals vacated summary judgment for Rockingham Memorial Hospital and Cardiac & Thoracic Surgical Associates, the defendants sued by Dr. Richard Gitter.

Gitter did not have a signed contract with the defendants, but he nevertheless closed his practice, sold his house and prepared to move to Virginia. Gitter was unhappy that the defendants did not also hire his physician’s assistant, and the parties went through some tough negotiations. The defendants backed out, and Gitter sued for breach of contract.

In the federal diversity case, Richmond Senior U.S. District Judge Richard Williams said the defendants had a statute of frauds defense against Gitter’s contract claim. Williams said the surgeon’s submission of an improper credentialing application meant he could not reasonably rely on what he perceived as a promise of employment.

In the application, Gitter had responded “no” to a question about whether he had faced any reduction in his hospital privileges.

Gitter had been briefly suspended by a medical center in Alabama for failure to find coverage for an on-call shift he missed while traveling to Virginia to interview for the new post. But the suspension was lifted a few days later and Gitter was placed on probation, which he did not interpret as a disciplinary action.

Several weeks later, the Alabama medical center sent the Virginia hospital a completed form stating there were no restrictions on Gitter’s privileges.

The 4th Circuit already had remanded the case in 2009. In that decision, the appellate court agreed that the parties’ emails did not amount to a written contract, but it said the defendants had not even reviewed the credentialing application before deciding not to hire Gitter.

This time around, the appellate panel said the lower court erred by short-circuiting the very issue the case had been sent back for: Was it reasonable for Gitter to rely on alleged promises by the defendants?

In the 4th Circuit’s latest March 23 unpublished opinion, Judge Roger Gregory said Gitter’s belief that his answers were correct, or at least justified, was enough to support the claim that the surgeon acted reasonably in relying on the hospital’s assurances of employment. The Alabama medical center’s letters saying it had not taken disciplinary action against Gitter also supported his belief that his answers on the credentialing application were justified.

Judge J. Harvie Wilkinson III dissented because he agreed that Gitter knew he had submitted an improper credentialing application.

“For all I know, Dr. Gitter may be a fine surgeon, but it was not reasonable for him to expect, in light of his response, that defendants would take a leap of faith that things would run smoothly between the parties in their new and mutually dependent relationship,” Wilkinson wrote.
By Deborah Elkins

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