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Rawdin v. American Bd. of Pediatrics

United States District Court, E.D. Pennsylvania

November 6, 2013

DAVID E. RAWDIN, M.D.
v.
THE AMERICAN BOARD OF PEDIATRICS

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[Copyrighted Material Omitted]

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For DAVID E. RAWDIN, M.D., Plaintiff: ROBERT F. MORRIS, LEAD ATTORNEY, MORRIS CLEMM & HELENIAK, PC, PLYMOUTH MEETING, PA; JOSHUA J. KNEPP, MORRIS & CLEMM PC, PLYMOUTH MEETING, PA.

For THE AMERICAN BOARD OF PEDIATRICS, Defendant: CHRISTOPHER B. SULLIVAN, DOUGLAS P. FARR, WESLEY D. FELIX, LEAD ATTORNEYS, PRO HAC VICE, SNELL & WILMER LLP, SALT LAKE CITY, UT; JEFFREY P. BATES, SAMANTHA LYNN KANE, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN, PHILADELPHIA, PA.

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MEMORANDUM

Juan R. Sánchez, J.

Plaintiff David Rawdin, M.D., is a skilled pediatrician who has been unable to obtain board certification from the American Board of Pediatrics (ABP or " the board). Although Dr. Rawdin is, by all accounts, an excellent pediatrician, he has been unable to pass the multiple choice exam ABP uses to evaluate all candidates for certification in any of his five attempts to do so. Dr. Rawdin contends he suffers from a disability--a memory deficiency--caused by a brain tumor and the subsequent treatment he received. He brings this action against ABP to accommodate his disability by either awarding him board certification without requiring him to pass the multiple choice exam or providing him with an alternative form of testing. The Court is sympathetic to Dr. Rawdin's position and agrees he suffers from a memory impairment. After holding a preliminary injunction hearing, which was consolidated with a trial on the merits, and upon review of the relevant case law, however, the Court concludes Dr. Rawdin is not disabled within the meaning of the ADA and is therefore not entitled to the accommodations he seeks. In addition, the Court concludes that even if Dr. Rawdin had a disability within the meaning of the Statute, his requested accommodations are not reasonable and would fundamentally alter ABP's exam and place an undue burden on ABP. As a result, the Court is constrained to deny Dr. Rawdin's request for relief. Pursuant to Federal Rule of Procedure 52(a), the Court issues the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. ABP is an independent, non-profit organization, and is one of 24 certifying boards of the American Board of Medical Specialties (ABMS). Board certification is recognized as a credential signifying a high level of physician competence. ABP's mission is to certify pediatricians against a series of qualifying standards so as to assure the public that certified physicians have demonstrated a high level of competency.

2.One of the benchmarks for certification requires passing a multiple choice exam. Throughout its 80-year existence, ABP has always required candidates to pass an exam prior to certification.

3. In the pediatric field, board certification is a critical mark of professional medical competence. Board certification is a factor used by the public in selecting a physician and by hospitals and private practices in deciding whether to hire a physician. A pediatrician is not, however, required to be board certified in order to practice, and approximately 15-20% of pediatricians are not board certified.

4. Dr. Rawdin is a licensed pediatrician who has been unable to pass ABP's multiple choice exam and obtain board certification. In 1987, while in college, Dr. Rawdin was diagnosed with Posterior Fossa Ependymoma, a type of brain tumor. He underwent brain surgery, chemotherapy, and radiation therapy to treat the tumor. Dr. Rawdin began to experience difficulty taking multiple choice examinations after surgery and treatment. Despite these difficulties,

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Dr. Rawdin graduated from Franklin & Marshall College in 1990 and began attending Temple University School of Medicine. He graduated from medical school in 1994.

5. To become a licensed physician, a medical student must pass the United States Medical Licensing Examination (USMLE). This exam consists of three " Steps," each of which includes multiple choice questions. Dr. Rawdin completed the first two Steps in medical school. After medical school, Dr. Rawdin took Step III of the USMLE but failed it twice. Following his second failed attempt in 1996, Dr. Rawdin was evaluated by a neuropsychologist, Laura Slap-Shelton, Psy.D. Dr. Slap-Shelton concluded that as a result of his brain tumor and subsequent surgical resection, chemotherapy, and radiation, Dr. Rawdin had sustained a cognitive impairment impacting his memory retrieval system. Specifically, Dr. Slap-Shelton determined Dr. Rawdin's verbal retrieval function, visual memory system, and visual fine motor function were all significantly impaired by the tumor and subsequent treatment, but these impairments were only apparent when Dr. Rawdin took multiple choice examinations. Dr. Slap-Shelton found, however, that Dr. Rawdin's impairments did not impact his clinical ability to practice medicine.

6. During the second year of his general surgery residency at the Graduate Hospital in Philadelphia, Dr. Rawdin's tumor recurred, requiring further surgery and treatment. Because Dr. Rawdin suffered a series of complications after surgery, he left the medical profession for four years and changed residencies, leaving the more demanding surgical specialty for pediatrics.

7. Dr. Rawdin returned to medicine in 1999, applied to take Step III of the USMLE for the third time, and for the first time requested accommodations. His request was granted, and he was provided double time to take the exam, an individual testing room, and additional " off the clock" breaks. Dr. Rawdin passed Step III of the USMLE on this third attempt and earned a Pennsylvania medical license in 2000. After passing the USMLE, Dr. Rawdin entered the general pediatric residency program at Albert Einstein Medical Center, which he completed without any reprimands or poor evaluations. His only struggles were with the mock board exams intended to prepare the residents for their board certification exam.

8. In July 2003, Dr. Rawdin began clinical practice as a pediatrician in the Neonatology Department of the Children's Hospital of Philadelphia (CHOP). He became the Assistant Director of CHOP's nursery, held a faculty post, and was part of the Academic Clinician Tract at the University of Pennsylvania School of Medicine. Dr. Rawdin worked at CHOP until his termination in 2010.

9. Dr. Rawdin's performance during his years at CHOP was exemplary, as reflected by the credible testimony of Dr. William Fox, the Director of the Newborn Infant Breathing Disorder Center at CHOP, who worked with Dr. Rawdin when Rawdin served as Assistant Director of the well-baby nursery. Dr. Fox never observed Dr. Rawdin having any difficulties with the functions of his position or with his diagnostic abilities, stating " I never heard any question about Dr. Rawdin's abilities, or his diagnostic abilities, or patient management abilities in the whole time he was there, which I think was about five years." Hr'g Tr. 35, July 29, 2013, ECF No. 38. Dr. Fox also never observed any shortcomings in Dr. Rawdin's pediatric knowledge. Dr. Rawdin treated 10,000 babies during his six and half years at CHOP. He was never reprimanded, never

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underwent a peer review as a result an incident that occurred on his watch, and there were no medical malpractice claims against him or the hospital as the result of the treatment of any baby under his care.

10. Under CHOP's bylaws, physicians employed by the hospital must be board certified in their specialties within five years of employment. Because Dr. Rawdin was not able to obtain certification, CHOP terminated his employment in January 2010.

11. ABP is the sole organization responsible for certifying physicians as specialists in the field of pediatrics. To obtain board certification, a physician must: (1) graduate from a medical school accredited by the Liaison Committee on Medical Education or the American Osteopathic Association; (2) complete three years of pediatric training in programs accredited by the Accreditation Council for Graduate Medical Education on the advice of the Review Committee for Pediatrics; (3) possess a valid, unrestricted license to practice medicine in at least one state or territory in the United States; (4) pass a peer and patient review; and (5) pass a multiple choice exam known as the General Pediatrics Certifying Examination (the Exam). The Exam is given once a year and is computer-based, consisting of four sections with a total of 335 multiple choice questions. These questions are cue- or story-based and contextual, providing the test-taker with a scenario and asking for the most likely diagnosis, treatment, or next step. Each question provides five possible answers and is designed to have one correct answer. The questions are intended to test knowledge, not memory. ABP has sole control over the planning, administration, and scoring of the Exam.

12. Dr. Rawdin meets all of the requirements for board certification except for passing the Exam, which he has taken five times (in 2004, 2006, 2008, 2009, and 2011) and failed each time. Without live performance, enabling him to talk to the actual patient or parent of the patient, ask questions, and see his or her reactions, Dr. Rawdin is not able to answer the questions correctly because he feels he lacks all of the necessary information.

13. In October 2007, following his second failed attempt to pass the Exam, Dr. Rawdin was reevaluated by Dr. Slap-Shelton, who performed a new psychological evaluation. As part of the evaluation, Dr. Slap-Shelton gave Dr. Rawdin a number of tests, including an intelligence test, the Wechsler Adult Intelligence Scale-III (WAIS-III); an academic achievement test, the Woodcock Johnson-III Tests of Achievement (WJ-III ACH); a series of neuropsychological tests; [1] and personality and behavior tests. Dr. Rawdin's scores placed him into the superior range or high average range on most of the tests. His verbal IQ placed him in the 98th percentile for overall language based intellectual ability, while his full scale IQ score placed him in the 93rd percentile. Dr. Rawdin's WAIS-III results revealed a 21-point difference between his verbal IQ and performance IQ, indicating a significant relative weakness in his visual-spatial processing as compared to his verbal processing. His fund of information placed him in the 75th percentile, indicating a relative weakness in his ability to retrieve information as compared to other higher

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level language-based abilities. Additionally, his Perceptual Organization Index score placed him in the 68th percentile, indicating a relative weakness in his working memory when sequencing was required. Dr. Rawdin's WJ-III ACH scores were all within or above the average range, with the exception of one lower score which Dr. Slap-Shelton attributed to his hearing loss.

14. The neuropsychological tests Dr. Slap-Shelton performed also evaluated Dr. Rawdin's cognitive functions. Dr. Rawdin performed in the normal range in the sensory perceptual function test and the sensory motor learning test. He demonstrated a mild impairment in his fine motor speed. Other tests demonstrated a mild impairment in his visual memory, but his memory improved when he was cued on a delayed recognition measure. Dr. Rawdin performed within normal limits on the memory function evaluation; however, for his age and education his score was low. The California Verbal Learning Test-II score demonstrated above average learning, but did show some struggle with recall ability. Again, cueing helped him retrieve information. Dr. Rawdin's scores on the Wechsler Memory Scale III test all fell within the average range, but were weak as compared to his full scale IQ. Furthermore, the memory tests demonstrated Dr. Rawdin's memory was not efficient and he particularly suffered when asked to retrieve information out of context. Following this testing, Dr. Slap-Shelton diagnosed Dr. Rawdin with a Cognitive Disorder Not Otherwise Specified (NOS), a diagnosis generally given when a person suffers from some difficulties but not enough to diagnose a specific disorder.

15. In July 2008, Dr. Rawdin consulted another neuropsychologist, Edward Moss, Ph.D., for further evaluation. In his practice as a neuropsychologist, Dr. Moss assesses individuals with mental disorders, attention disorders, and other issues affecting the brain and behavior. Dr. Moss had previously consulted with physicians struggling with some aspect of their training. Dr. Moss reviewed the results of Dr. Slap-Shelton's 2007 neurological testing, but he did not re-test Dr. Rawdin because Rawdin had been thoroughly tested by Dr. Slap-Shelton less than a year prior. Dr. Moss felt confident relying on the 2007 test results and wanted to avoid any artificially inflated results caused by repeating the tests in a relatively short time span. Dr. Moss concluded Dr. Rawdin has a declarative memory impairment directly related to his brain tumor and subsequent treatment. He opined Dr. Rawdin's impairment is unique to his specific brain injury and the location of the injury in the part of the brain " require[d] to do that kind of work, to pull together on command discrete bits of unrelated information." Moss Dep. at 148. Dr. Moss agreed with Dr. Slap-Shelton's evaluation that Dr. Rawdin's testing indicated his verbal and visual memory are significantly weak compared to his full scale IQ, his memory is not efficient, and his performance suffers when he has to retrieve out-of-context information. Based on his meeting with Dr. Rawdin and his evaluation of the 2007 test results and Dr. Slap-Shelton's report, Dr. Moss made four recommendations, advising that Dr. Rawdin should (1) meet with a neurospychiatrist, an M.D. who specializes in brain injury, to see if any medication might help either reduce anxiety related to the test or assist with attention and concentration; (2) receive Cogmed Working Memory training to help him focus during the test; (3) undergo cognitive behavior therapy to reduce his anxiety and teach him better test-taking strategies; and (4) take the October 2008 Exam, even though it was only two months away, for practice.

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16. On Dr. Moss's recommendation, Dr. Rawdin took the Exam for the third time in 2008 and again failed it. Because Dr. Rawdin was unable to pass the Exam within five years of his employment with CHOP and was facing termination, Dr. Moss wrote a letter to CHOP explaining that Dr. Rawdin's disability required more time to treat before he was likely to improve and advocating CHOP grant him additional time. CHOP allowed Dr. Rawdin one final attempt to take the Exam the following year. CHOP granted Dr. Rawdin this extension because of his excellent work and Dr. Moss's persuasive letter of advocacy; however, Dr. Rawdin failed the 2009 Exam and was terminated in January 2010.

17. Dr. Rawdin struggled to obtain employment as a pediatrician after CHOP terminated him. He hired a job recruiter specializing in medical jobs, did online searches, and joined physician job sites, but he could not find a position that did not require board certification within a certain number of years post-residency. For example, Dr. Rawdin sought a job at Albert Einstein Hospital performing circumcisions for newborns. Circumcision is a minor medical procedure that is not required to be performed by a doctor; however, the head of pediatrics refused to hire any doctor without board certification. No hospital has been willing to give Dr. Rawdin admitting privileges without certification, thus limiting his ability to practice medicine, at least in a hospital setting. Although Dr. Rawdin contends his inability to obtain admitting privileges also limits his ability to practice in a private practice setting because he is unable to admit patients to the hospital, he has not attempted not to start or join a private medical practice, nor has he sought a position in a rural area.

18. On September 10, 2010, Dr. Rawdin wrote to ABP, explaining his difficulties in passing the Exam and requesting an alternative method of certification. On September 29, 2010, Dr. Gail McGuiness, the Executive Vice President of ABP, responded by letter, informing Dr. Rawdin ABP was unable to offer him an alternative exam and could not certify physicians who had not taken and passed the Exam, as this would " fundamentally alter the nature of the certification process." Ex. 9. Dr. McGuiness suggested Dr. Rawdin submit a request for accommodations under the ADA. Dr. Rawdin and Dr. McGuiness also spoke by phone, and Dr. McGuiness reiterated that ABP could not waive the Exam requirement because it would compromise the uniform standard for certification.

19. On April 28, 2011, Dr. Rawdin again applied to take the Exam. On May 2, 2011, Dr. Slap-Shelton sent a letter to ABP on Dr. Rawdin's behalf, informing ABP of Dr. Rawdin's diagnosis. Dr. Slap-Shelton explained Dr. Rawdin " demonstrates ongoing neurocognitive impairment [a]ffecting his verbal retrieval, visual memory, and his visual fine motor functioning." Ex. 4. She also reported Dr. Rawdin's memory retrieval impairment appeared to particularly affect his ability to retrieve information where limited context is provided. Because of Dr. Rawdin's difficulties related to his memory impairment, Dr. Slap-Shelton recommended ABP provide the following accommodations: (1) extended time; (2) a quiet setting; (3) advance knowledge of the material covered on the Exam; ...


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