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A doctor’s federal claim that he lost his medical privileges because of his race is not barred by the doctrine of primary jurisdiction, according to a ruling by a divided 2nd U.S. Circuit Court of Appeals. The court said Dr. Eugenio Tassy, who lost his privileges at Brunswick Hospital Center because of sexual harassment allegations, is not required to first pursue reinstatement with the New York Public Health Council. In Tassy v. Brunswick Hospital Center, Inc., 01-7675, the court said the policy considerations underlying the doctrine of primary jurisdiction — the need for uniformity or the judiciary’s deference to the expertise of administrative agencies — were not present in the case. In dissent, Chief Judge John M. Walker Jr. said the Public Health Council was uniquely positioned to decide the question of Tassy’s “character or competency,” and that district court should defer to the agency. Tassy, a black Haitian-American, first received privileges to practice at Brunswick in 1994. Four years later, a psychiatrist at the hospital complained that Tassy sexually harassed her; another employee complained Tassy was verbally abusive; and a fellow doctor accused Tassy of improper behavior. Tassy was suspended, reinstated, and then suspended a second time when the psychiatrist again accused him of inappropriate behavior. He filed suit in the Eastern District of New York claiming discrimination on the basis of race and national origin, arguing that Brunswick and defendant Dr. Morton Goldfarb had punished white doctors less severely, even in cases of more serious misconduct. Brunswick moved to dismiss the complaint, contending that the doctrine of primary jurisdiction required the federal court to defer to the procedures established under New York state law for review by the Public Health Council (PHC). Eastern District of New York Judge Denis R. Hurley agreed with Brunswick and dismissed the case, without prejudice, pending a review by the PHC of Tassy’s character and competency. Writing for the 2nd Circuit, Judge Barrington D. Parker Jr. said the judge-made doctrine of primary jurisdiction emerged in the early 1900s with the U.S. Supreme Court emphasizing the importance of uniformity, largely in the context of disputes involving regulated industries such as railroads and electricity. But the doctrine was later expanded to include an emphasis on the special expertise of administrative agencies that were better equipped to handle highly technical questions. QUESTION OF CHARACTER After noting that the need for uniformity was not implicated in the Tassy case, Parker said the “more significant question was whether deferring to the PHC” would promote the resolution of facts because of the agency’s specialized expertise.” He concluded that it would not. Tassy’s case, he said, “does not involve allegations of technical incompetence or inadequate patient care, does not implicate any medical data or complex records, and would not benefit from the medical expertise of the PHC.” “The primary factual issue is whether Tassy committed the alleged sexual harassment,” Judge Parker said. “The PHC has no expertise in determining whether a doctor committed sexual harassment or other acts of non-medical misconduct. Nor is medical expertise necessary to determine that one who sexually harasses his colleagues is lacking in character.” And even though the New York Legislature allows hospitals to revoke privileges based on character, he said, that “does not mean that the PHC has expertise in determining whether a particular physician’s character is flawed.” In his dissent, Walker noted that, under New York Public Health Law � 2801-b, the PHC is empowered to decide whether “standards of patient care, patient welfare, the objectives of the institution or [Tassy's] character or competency” warranted suspension or reinstatement. Proceedings before the PHC would result in a ruling in Tassy’s favor, a ruling in the hospital’s favor or a mediated settlement, he said, but only in the case of a ruling in the hospital’s favor “would it be necessary for Tassy to proceed with his federal action.” “And if that were to occur, the federal court would have the benefit of the answers to fact questions from the agency charged with disputes of this sort among professionals,” Walker said. “Such answers would be of great assistance in resolving the federal claims that Tassy has presented in his complaint and determining whether his privileges should be restored.” But Judge Walker said there was another reason for invoking the doctrine of primary jurisdiction — judicial economy. “Although the Supreme Court has yet to rely on this factor, we have done so and, in this case, judicial economy militates in favor of invoking the doctrine,” he said. Judge Robert D. Sack joined in the majority’s decision. Michael H. Sussman and Stephen Bergstein represented Tassy. Robert J. Farley of Mineola, N.Y.’s Farley, Holohan, Glockner & Toto represented the hospital.

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