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Anand N. Munsif v. American Board of Internal Medicine

September 11, 2012

ANAND N. MUNSIF
v.
AMERICAN BOARD OF INTERNAL MEDICINE, ET AL.



The opinion of the court was delivered by: Juan R. Sanchez, J.

MEMORANDUM

Pro se Plaintiff Dr. Anand N. Munsif brings claims against the American Board of Internal Medicine (ABIM), the New Jersey Division of Law (the Law Division), the New Jersey Division of Consumer Affairs (the Consumer Affairs Division), the University of Medicine and Dentistry of New Jersey (the University), and the New Jersey Board of Medical Examiners (the Board of Medical Examiners)*fn1 arising out of an investigation of Dr. Munsif undertaken by the Law Division, the Consumer Affairs Division, and the Board of Medical Examiners, based on information from ABIM, which resulted in the suspension of Munsif's medical license. Munsif alleges Defendants have violated his rights under the United States, New Jersey, and Pennsylvania Constitutions. He also brings claims against Defendants for fraud, "special damage," gross negligence, and conspiracy, and for violations of the Racketeer Influenced and Corrupt Practices Act (RICO), several federal anti-discrimination statutes, the federal antitrust laws, the Illinois, New Jersey, and Pennsylvania whistleblower statutes, the Pennsylvania Medical Practice Act of 1985, § 45:1-18 of the New Jersey Statutes, and the United Nations Universal Declaration of Human Rights. ABIM and the New Jersey Defendants have each filed a motion to dismiss Munsif's Amended Complaint. For the reasons set forth below, the motions will be granted.

FACTS*fn2

Dr. Munsif attended medical school outside of the United States and then sought additional training in New Jersey, where he currently resides. Munsif alleges the State of New Jersey has a history of discriminating against graduates of foreign medical schools. According to the Amended Complaint, such discrimination is based on race because foreign medical graduates are predominantly non-white, while graduates of medical schools in the United States are predominantly white. Munsif appears to contend the State's discriminatory practices, which he claims ABIM has tolerated since the 1980s, have impeded his medical career and prevented him from obtaining satisfactory medical employment in New Jersey.

With regard to the State's discriminatory practices, Dr. Munsif alleges that during the mid-1980s, the State increased the training period required to obtain a physician's license from one to three years for foreign medical graduates, but not for graduates of American medical schools. Am. Compl. 6. In addition to being humiliating, this change allegedly harmed the career prospects of foreign-educated doctors by delaying their access to better training programs, reducing their income from moonlighting, and delaying their eligibility to take the Federal Licensing Examination, a prerequisite for physician licensure in New Jersey. According to the Amended Complaint, other states do not differentiate between foreign- and American-educated doctors in this manner.

During the 1987--1988 academic year when Dr. Munsif was applying for a training position in the field of cardiovascular disease, the State-owned hospitals and medical schools in New Jersey excluded foreign medical graduates from their cardiovascular disease residency programs by either omitting them from the national computerized matching program or ranking them very low. As a result, foreign medical graduates, including Munsif, had to obtain cardiovascular disease training outside of New Jersey. Munsif alleges ABIM, by virtue of its role in verifying the training of candidates for board certification in internal medicine and its subspecialties, including cardiovascular disease, either knew or should have known of New Jersey's racial bias in the cardiovascular disease training matching program, but did nothing to remedy the State's unethical and illegal practice.*fn3

Between 1995 and 1997, a period of financial stress for New Jersey medical practices due to problems with reimbursements from insurers, the Law Division, the Consumer Affairs Division, and the Board of Medical Examiners granted medical licenses to several physicians who had not completed internship and residency training in the United States, and who were considered "fellows." The grant of physician licenses to these fellows, several of whom worked in the practice where Dr. Munsif was employed at the time, was a departure from the usual requirement of internship and residency training and allegedly resulted in preventable deaths and lapses in patient care at a hospital in Passaic, New Jersey. Munsif brought these preventable deaths to the attention of the Director of Consumer Affairs in late 1997 or early 1998 and asked him to investigate. Munsif thereafter lost his job, which he attributes to the State's practice of licensing fellows who earned about 60 percent less than he did and were thus cheaper for the practice. He also alleges his complaints about preventable deaths at the Passaic hospital may have caused hospital personnel to say negative things about him and may have caused other New Jersey hospitals not to grant him hospital privileges.

Nearly ten years later, on June 1, 2007, Dr. Munsif took the recertification examination in internal medicine administered by ABIM, but experienced numerous problems in doing so. Initially, ABIM withdrew Munsif's registration for the exam. Although ABIM eventually reinstated the registration in May 2007, it then reversed course, informing Munsif only one to two hours before the exam was to begin on June 1 that his registration was revoked without giving a reason. When Munsif protested, ABIM permitted him to take the exam a few hours later; however, the distraction ABIM had created caused him to fail the exam. Munsif appears to believe the distraction was an intentional effort to cause him to fail. Munsif also notes several deficiencies in the examination facility, including the lack of comfortable chairs and the lack of availability of snacks and beverages on-site, causing examinees to have to walk three blocks uphill in 85-degree weather for a cup of tea or coffee. After Munsif failed the recertification exam, ABIM required him to wait several months before retaking the exam and failed to provide him with any assurance a similar situation would not arise in the future or to offer improved examination facilities.

In September 2007, Dr. Munsif filed a lawsuit against six ABIM officers asserting numerous claims arising out of ABIM's alleged mishandling of his exam registration and role in causing him to fail the exam as well as the poor conditions at the examination facility. This Court dismissed the suit in January 2008, and the Third Circuit affirmed the dismissal. See Munsif v. Cassel, 331 F. App'x 954 (3d Cir. 2009).*fn4

In 2007 or early 2008, ABIM complained to the Law Division that Dr. Munsif was paranoid and exhibited illogical thinking and irrational behavior, complaints Munsif contends were baseless. As a result of ABIM's complaints, the Law Division commenced an investigation of Munsif in February 2008, which culminated in the suspension of Munsif's medical license, effective July 13, 2011.

In September 2010, as part of the investigation, the New Jersey Attorney General filed a motion with the Board of Medical Examiners seeking to require Dr. Munsif to submit to a psychological evaluation and a skills assessment. Bd. of Med. Exam'rs Order 1, Nov. 12, 2010, ECF No. 20-2.*fn5 In support of the motion, the Attorney General submitted an expert report by Ricardo J. Fernandez, M.D., a psychiatrist, who did not interview Munsif but reviewed documents Munsif submitted to the Board and in support of his prior federal lawsuit against the ABIM officers. Dr. Fernandez opined there was good cause to require Munsif to submit to a psychological evaluation based on the paranoid thinking exhibited in the documents he reviewed. Munsif submitted a pro se response to the Attorney General's motion.*fn6

Following oral argument in October 2010, the Board issued an order on November 12, 2010, directing Munsif, as a condition for continued licensure, to (1) "submit within ninety (90) days to a psychological evaluation by a psychiatrist, pre-approved by the Board, in order for the Board to evaluate whether his continued practice of medicine may jeopardize the safety and welfare of the public," and (2) "submit within 90 days to an assessment of skills in Internal Medicine and Clinical Cardiac Electrophysiology by an entity pre-approved by the Board to determine whether he can continue to practice with reasonable skill and safety."*fn7 Id. at 15-16. The order also alerted Munsif if he "fail[ed] to satisfy the conditions of this Order within the specified time frame, the Board reserve[d] the right to initiate proceedings it deem[ed] necessary to protect the public." Id. at 16.

When Munsif thereafter failed to comply with the requirements of the November 2010 order, the Attorney General filed a further motion with the Board, seeking a finding that Dr. Munsif's failure to comply constituted professional misconduct and the imposition of sanctions on Munsif for such misconduct. Bd. of Med. Exam'rs Order 1-2, Nov. 7, 2011, ECF No. 20-2. The Board held oral argument on the motion on July 13, 2011, and on November 7, 2011, the Board issued a written order suspending Munsif's medical license, nunc pro tunc to July 13, 2011. Id. at 11. The Order specified the suspension would remain in effect pending Munsif's submission to, and the Board's review of the results of, the required psychological evaluation and skills assessment. Id.

Dr. Munsif makes numerous complaints about the conduct of the investigation described above, many of which he also appears to have raised before the Board of Medical Examiners. Munsif alleges the investigation was unnecessarily protracted and has harmed him by preventing him from earning a living, interfering with his prior federal court case and appeal, damaging his reputation, and causing him intellectual property losses. He further alleges that by depriving him of income during the pendency of the investigation, Defendants have prevented him from paying his existing medical bills for his cancer and diabetes treatment, and from obtaining further needed medical care for these and other issues. Munsif also alleges there was no basis for the Board of Medical Examiners to require him to submit to a psychological evaluation or a skills assessment, and challenges the Law Division's failure to maintain the confidentiality of the investigation, which he contends caused him millions of dollars in unspecified intellectual property losses and ruined his reputation.*fn8

As to the skills assessment, Dr. Munsif alleges the Attorney General has refused to agree to a workable solution by failing to respond to Munsif's offer to submit to a skills assessment at Cooper University Hospital or his request for indemnification in the event he is forced to interact with a hospital with low procedure success rates. Id. at 19. He also alleges the New Jersey Defendants have failed to recognize his non-working status is the direct result of the State's own actions. Id. at 23-24. Specifically, Munsif asserts that as a result of the State's racial preferences in its cardiovascular disease residency program, he was forced to obtain his medical training outside of New Jersey and ended up receiving better training than was offered in New Jersey, making him effectively unemployable in New Jersey until community cardiac electrophysiologists in the state reached the same high procedure success rates as other states. Id. at 23-24, 27-28. Munsif also alleges his non-working status is the result of the New Jersey Defendants' grant of medical licenses to non-U.S.-trained "fellows" who were hired by Munsif's medical practice in the mid-1990s, causing him to lose his job. Id. at 24. He also appears to allege the Board's investigation, based on ABIM's false claim of paranoia, has effectively restrained him from competing while white physicians in New Jersey improve their procedure success rates. See id. at 20, 24. Munsif further alleges because of his superior training, if he submits to a skills assessment at a lower success rate hospital, he will make many professional enemies because he would look better than most clinical cardiac electrophysiologists. Id. at 24-25.

As to the psychological evaluation, Dr. Munsif alleges Dr. Fernandez improperly diagnosed him as paranoid without even speaking to him and in the absence of any satisfactory criteria as described in the Diagnosis and Statistical Manual of Psychiatric Disorders IV. Id. at 19. He also identifies several inaccuracies in Fernandez's report. See id. at 30-32. For example, Munsif alleges Fernandez incorrectly concluded that Munsif had not practiced medicine since 1997, notwithstanding that Munsif's non-working status was the result of actions by ABIM and the State of New Jersey, and despite the fact Munsif had advised the Board he engaged in the practice of medicine in October 2008 by "reviv[ing] an unresponsive, pulse less woman in a nursing home and ha[ving] her transferred to hospital." Id. at 30-31. Munsif also disputes Fernandez's evaluation of Munsif's federal court filings, noting Fernandez failed to mention ABIM's counsel's representation to this Court that he could re-take the recertification exam, which statement would not have been made if ABIM had any doubts about Munsif. Id. at 31.

Munsif also alleges ABIM and the Law Division are seeking to discredit him because he is the author of the book, Diabetes Mellitus Handbook, which discusses health problems of Native Americans and African Americans, two groups with which ABIM and the Law Division have a "very sorry record." Id. at 26. He further contends the Law Division and ABIM have demanded that he work in "ghetto" hospitals with lower pay, less prestige, and a higher risk of physical violence, which "fulfills all criteria for slavery." Id. at 26-27.

Munsif filed his original Complaint in this action in September 2011, and filed an Amended Complaint the following month, asserting against all Defendants claims for fraud, "special damage," gross negligence, conspiracy, and RICO violations, and for violations of his rights under the United States, New Jersey, and Pennsylvania Constitutions; several federal anti-discrimination statutes; the federal antitrust laws; the Illinois, New Jersey, and Pennsylvania whistleblower statutes; the Pennsylvania Medical Practice Act of 1985; § 45:1-18 of the New Jersey Statutes; and the United Nations Universal Declaration of Human Rights. ABIM and the New Jersey Defendants thereafter separately moved to dismiss the Amended Complaint, and this Court held oral argument on the motions in March 2012.

In April 2012, approximately one month after the oral argument, Munsif filed a Second Amended Complaint, which reiterates the facts and legal claims in Munsif's Amended Complaint, expands certain factual allegations, adds various legal claims, and presents new legal argument in opposition to Defendants' motions to dismiss. ABIM thereafter moved to strike this Second Amended Complaint. In May 2012, Munsif filed what is in effect a motion for leave to file the previously filed Second Amended Complaint,*fn9 which the New Jersey Defendants have opposed.

Because Munsif had already amended his Complaint once before filing his Second Amended Complaint, and because he filed the Second Amended Complaint five months after Defendants filed their dismissal motions pursuant to Federal Rule of Civil Procedure 12(b), he was required to seek Defendants' permission or this Court's leave before amending his Complaint a second time. See Fed. R. Civ. P. 15(a) (providing a party may amend its complaint once as a matter of course within 21 days after serving it or after service of a Rule 12(b) motion, but otherwise may amend only with the opposing party's written consent or the court's leave). Although Munsif did not comply with Rule 15(a) initially, he eventually filed the equivalent of a motion for leave to amend. See ECF No. 44. Accordingly, this Court will grant ABIM's motion to strike Munsif's Second Amended Complaint, which was improperly filed without permission or leave, and will consider Munsif's motion for leave to amend along with Defendants' motions to dismiss. To the extent the Second Amended Complaint constitutes a response to the pending motions to dismiss, the Court will consider the arguments raised therein in addressing Defendants' arguments for dismissal. To the extent the Second Amended Complaint includes new factual allegations and legal claims, the Court will consider the sufficiency of the pleading in addressing Munsif's request for leave to amend. This Court recognizes that under Rule 15(a), leave to amend should be "freely ...


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