United States District Court, D. Maine
ORDER ON PLAINTIFF'S MOTION TO AMEND AND
DEFENDANT'S MOTION TO DISMISS
Torresen United States Chief District Judge.
me are the Plaintiff's motion to amend the Complaint
pursuant to Federal Rule of Civil Procedure 15(a)(2) (ECF No.
33) and the Defendant's motion to dismiss pursuant to
Rule 12(b)(6) (ECF No. 27). For the reasons stated below, the
Plaintiff's motion is GRANTED and the
Defendant's motion is DENIED.
Plaintiff is Doctor Jeffery Thurlow, a board-certified
surgeon who specializes in general surgery. Proposed Am.
Compl. ¶¶ 2, 7 (“PAC”)
(ECF No. 33-1). Dr. Thurlow has held clinical privileges at
York Hospital since 2002. See PAC ¶¶
13-14. York Hospital recruited him in order to
“strengthen the clinical expertise and the capacity of
York Hospital's Department of Surgery.” PAC ¶
13. In 2006, York Hospital hired Dr. Thurlow as an employee.
PAC ¶ 14. During his tenure at York Hospital, Dr.
Thurlow was “by far the most productive general surgeon
in its employ” and “was universally regarded by
his peers as the most dependable, skilled, and proficient
general surgeon on the York Hospital staff.” PAC ¶
Defendant is York Hospital, located in York, Maine. PAC
¶ 8. Jud Knox is the President of York Hospital. PAC
¶ 17. Although Knox is at the helm of the hospital
administration, the York Hospital Medical Staff, an
association of physicians, functions largely independently of
the hospital administration. See PAC ¶ 32. Dr.
Thurlow was the President of the Medical Staff from
approximately 2010 to 2012. See PAC ¶¶ 21,
2007, York Hospital hired “Dr. Doe” to join the
practice that included Dr. Thurlow. PAC ¶ 15. While
working with Dr. Doe, Dr. Thurlow became aware of
“evidence which caused him to believe that Dr. Doe was
performing unnecessary peripheral nerve surgery, endangering
patients in the process, falsifying surgical notes, and
‘coding' fraudulently for the surgical procedures
he performed in order to support claims for reimbursement to
which he was not legally entitled.” PAC ¶ 16. Dr.
Thurlow informed Knox about his concerns. PAC ¶ 17.
Eventually, Dr. Doe was removed from Dr. Thurlow's
practice group at the insistence of Dr. Thurlow and another
physician. PAC ¶ 19. Dr. Doe was still “retained
as an employee of York Hospital as a member of a second
hospital-owned general surgery practice, ” but Dr.
Thurlow did not have to work with him because there was no
cross-coverage arrangement between the two separate
hospital-owned surgery groups. See PAC ¶¶
2010, while Dr. Thurlow was the President of the Medical
Staff, he began a formal investigation into Dr. Doe's
peripheral nerve surgery practice. PAC ¶ 21. The
resulting external review of Dr. Doe's practice
“was highly critical.” PAC ¶ 24. The Medical
Executive Committee of the York Hospital Medical Staff held a
special meeting with the author of the external review.
See PAC ¶ 24. The meeting resulted in “a
unanimous vote to suspend Dr. Doe's privileges to perform
peripheral nerve surgery.” PAC ¶ 24.
April of 2012, Dr. Doe tried to “regain permission to
perform peripheral nerve procedures.” PAC ¶ 25. In
response to this effort, Dr. Thurlow “made a
presentation to hospital leadership wherein he set forth . .
. his concerns about several aspects of Dr. Doe's
practice, including what he believed to be Dr. Doe's
fraudulent billing of the United States and other
payers.” PAC ¶ 25. In the summer of 2012, Dr.
Thurlow's tenure of President of the Medical Staff ended.
PAC ¶ 26. Soon after, Dr. Doe's privileges to
perform peripheral nerve surgery were reinstated. PAC ¶
no longer in a leadership position, Dr. Thurlow
“continued to express his ongoing concerns about
patient safety and ethical issues” to the York Hospital
administration. PAC ¶ 28. He continued to voice his
concerns through at least the end of 2012. PAC ¶ 30. But
the York Hospital administration never placed restrictions on
Dr. Doe's practice. See PAC ¶ 32. Instead,
“[t]he only restrictions that were ever imposed on Dr.
Doe's practice were imposed by the York Hospital Medical
Staff” and they were “imposed without the support
of Jud Knox.” PAC ¶ 32. The restrictions placed on
Dr. Doe by the Medical Staff, which Knox had resisted, were
“economically costly to York Hospital.” PAC
some point before January 2013, ” Knox initiated a plan
to merge the two separate hospital-owned surgery groups. PAC
¶ 34. Knox knew that Dr. Thurlow thought that Dr. Doe
was “dangerous, dishonest, and unscrupulous” and
that the merger would have required the two doctors to work
alongside one another. PAC ¶¶ 35, 37. Dr. Thurlow
alleges that the plan to merge the two groups was developed
in part to create working conditions that were intolerable
for him. PAC ¶ 39. He was informed of the planned merger
in an email on January 28, 2013. PAC ¶ 34.
Thurlow refused to work with Dr. Doe. PAC ¶ 41. York
Hospital fired Dr. Thurlow without cause and without notice
on March 27, 2013. PAC ¶ 42. The hospital continues to
employ Dr. Doe and pays him “substantially more than
the fair value of the services he performs.” PAC ¶
46. After terminating Dr. Thurlow, York Hospital denied him
access to a list of his patients and sent a letter to one of
his former patients implying that “Dr. Thurlow had
voluntarily abandoned the patient.” PAC ¶ 50.
the York Hospital Medical Staff functions largely
independently of the hospital administration, Dr. Thurlow
continued to remain a member of the Medical Staff even though
he was no longer a York Hospital employee. See PAC
¶¶ 32, 51. On December 17, 2013, Knox gave Dr.
Thurlow a “behavioral compact” that Dr. Thurlow
“would be required to sign if he wished to engage Knox
in discussions around ‘the constructive development of
cohesive and collaborative general surgical services at York
Hospital.' ” PAC ¶ 51. The behavioral compact
stated, among other things, that Dr. Thurlow was expected to:
(1) “[s]upport the Hospital organization, the Board of
Trustees, Jud Knox and the Leadership of the
Organization;” (2) refrain from “speaking
negatively about the Organization, the Board of Trustees or
Leadership;” (3) “cease speaking negatively about
past decisions that have been made by the Hospital
Organization and Leadership;” and (4) “[d]irect
[his] concerns, criticisms, and disagreements with the
Hospital decisions and policies directly to Jud Knox in
one-on-one private conversations.” Ex. A to PAC
(“Behavioral Compact”) (ECF No. 34).
March 25, 2016, Dr. Thurlow filed a one-count Complaint
alleging retaliation in violation of the False Claims Act
(the “FCA”), 31 U.S.C.
§§ 3729-3733. Although Dr. Thurlow's attorney
emailed a copy of the Complaint and Summons to the
Defendant's attorney, he did not serve the Summons and
Complaint immediately because he “had filed the
complaint more hurriedly than [he] would have liked, in order
to avoid a time bar, and [he] intended to continue [his]
investigation before making service.” Taintor Aff.
¶ 9 (ECF No. 11-1). The Plaintiff then failed to timely
serve the Complaint.
Clerk of Court issued an Order to Show Cause asking the
Plaintiff to explain why he failed to timely serve the
Defendant on June 27, 2016. (ECF No. 7). In response, the
Plaintiff's attorney served the Defendant with an Amended
Summons on June 30, 2016. Taintor Aff. ¶ 12. The Clerk
of Court then issued a second Order to Show Cause directing
the Plaintiff to explain why service was not timely made.
(ECF No. 10). On July 7, 2016, the Plaintiff timely responded
to the Orders to Show Cause, stating that he mistakenly
believed that he had 120 days to serve the Complaint, rather
than the 90 days allowed by the Federal Rules of Civil
Procedure. Taintor Aff. ¶ 10. I found the Plaintiff had
shown good cause and terminated the Orders to Show Cause.
(ECF No. 12). The Defendant then moved to vacate my order
finding good cause. Mot. to Vacate (ECF No. 17). Upon
reconsideration, I granted the Defendant's motion,
finding that the ...