Pervaiz Chaudhry v. Tomas Aragon ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PERVAIZ A. CHAUDHRY, M.D.; No. 21-16873
VALLEY CARDIAC SURGERY
MEDICAL GROUP, D.C. No.
Plaintiffs-Appellants, 1:16-cv-01243-
SAB
v.
OPINION
*
TOMÁS ARAGÓN , in his official
capacity as the Director of California
Department of Public Health;
STEVEN LOPEZ, California
Department of Public Health, Fresno
District Office Manager, in his official
and personal capacity; SHIRLEY
CAMPBELL, in her personal capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Stanley A. Boone, Magistrate Judge, Presiding
Argued and Submitted March 7, 2023
San Francisco, California
*
Tomás Aragón has been substituted for his predecessor, Sonia Angell,
under Fed. R. App. P. 43(c)(2).
2 CHAUDHRY V. ARAGÓN
Filed May 23, 2023
Before: Michelle T. Friedland and Ryan D. Nelson, Circuit
Judges, and Gary S. Katzmann,** Judge.
Opinion by Judge Katzmann
SUMMARY***
Civil Rights
The panel affirmed the district court’s dismissal,
following a five-day bench trial, of an action brought
pursuant to 42 U.S.C. § 1983 against present or former
employees of the California Department of Public Health
alleging a “stigma-plus” due process claim on the grounds
that defendants violated Dr. Chaudry’s and Valley Cardiac
Surgery Medical Group’s Fourteenth Amendment rights by
denying Dr. Chaudhry an opportunity to be heard before
publishing a purportedly erroneous investigative report on
an unsuccessful cardiac surgery.
Following an investigation of the surgery, the
Department published on its website a combined Statement
of Deficiencies and Plan of Correction. The district court
concluded, among other things, that plaintiffs Dr. Chaudhry
and Valley Cardiac Surgery Medical Group failed to
**
The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CHAUDHRY V. ARAGÓN 3
establish the requisite causation element for a “stigma-plus”
due process claim under § 1983. The district court assessed
that it was the tragic events surrounding patient Silvino
Perez’s surgery and Dr. Chaudhry’s violations of certain
hospital policies—and not the ostensibly stigmatizing
Statement of Deficiencies—that were the causes of
plaintiffs’ alleged deprivations.
The panel held that the district court’s negative causation
finding was plausible in light of record evidence
establishing, inter alia: the timing and conclusions of the
hospital’s internal investigations; the independent actions of
a hospital employee to alert the Perez family to potential
malfeasance by Dr. Chaudhry; the Perez family and estate’s
pursuit of legal action; the accounts of key percipient
witnesses to the Perez surgery as part of the Perez
malpractice case; and the sizable malpractice judgment
awarded against Dr. Chaudhry. The panel thus sustained the
district court’s determination that plaintiffs failed to prove
that defendants’ conduct was the actionable cause of the
claimed injury and concluded that, at a minimum, plaintiffs
failed to establish the requisite causation element of their
“stigma-plus” due process claim under § 1983.
COUNSEL
Thornton Davidson (argued), Thornton Davidson P.C.,
Fresno, California, for Plaintiffs-Appellants.
Diana Esquivel, Deputy Attorney General; Catherine
Woodbridge, Supervising Deputy Attorney General;
Danielle F. O’Bannon, Senior Assistant Attorney General;
Rob Bonta, Attorney General of California; Office of the
4 CHAUDHRY V. ARAGÓN
California Attorney General; Sacramento, California; for
Defendant-Appellees.
OPINION
KATZMANN, Judge:
Plaintiffs Dr. Pervaiz A. Chaudhry and Valley Cardiac
Surgery Medical Group bring suit under 42 U.S.C. § 1983against Defendants Tomás Aragón, Shirley Campbell, and
Steven Lopez—each present or former employees of the
California Department of Public Health—on the grounds
that Defendants acted under color of state law to deprive
Plaintiffs of certain rights secured by the United States
Constitution. Specifically, Plaintiffs allege a “stigma-plus”
due process claim under § 1983 on the grounds that
Defendants violated their Fourteenth Amendment rights by
denying Dr. Chaudhry an opportunity to be heard before
publishing a purportedly erroneous investigative report on
an unsuccessful cardiac surgery. They contend that the
publication of this report caused Plaintiffs to be deprived of
protected employment-related interests. After a five-day
bench trial, the United States District Court for the Eastern
District of California concluded that Plaintiffs failed to
establish several necessary elements of their claim and, thus,
dismissed the action in its entirety; Plaintiffs challenge each
of the district court’s negative elemental findings before this
court.
Because we conclude that, at a minimum, Plaintiffs
failed to establish the requisite causation element of their
“stigma-plus” due process claim under § 1983, we affirm the
district court’s dismissal of Plaintiffs’ action in its entirety.
CHAUDHRY V. ARAGÓN 5
I. BACKGROUND
A. Factual Background
Plaintiff Dr. Chaudhry was a cardiothoracic surgeon and
a practitioner with substantial financial and leadership
interests in Plaintiff Valley Cardiac Surgery Medical Group
(“Valley Cardiac”). On April 2, 2012, Dr. Chaudhry
performed open-heart surgery on patient Silvino Perez at
Community Regional Medical Center (“the Hospital”), a
private hospital in Fresno, California. The relevant
individuals who were present in the operating room for the
surgery were Dr. Chaudhry, Kalwant Dhillon, M.D.
(assistant surgeon), Ashwin Bhatt, M.D. (anesthesiologist),
Bella Albakova (physician assistant, or “PA”), and Aaron
Schreur (perfusionist). The parties dispute whether Dr.
Chaudhry left the operating room: (1) before the surgery was
complete; (2) before Perez’s chest had been closed and
sutured; and/or (3) when Perez was unstable.
Soon after Dr. Chaudhry left, Perez experienced
ventricular fibrillation and Dr. Chaudhry was called back to
the hospital to attend to him. Despite intervention, Perez
suffered hypoxic brain injury. On April 2, 2012—the same
day as the Perez surgery—the Hospital began an internal
investigation into the events of the operation and on April
12, the Hospital’s Medical Executive Committee resolved to
have the Perez case independently reviewed by an outside
cardiovascular surgeon.
Meanwhile, on April 11, the California Department of
Public Health (“CDPH”)—a state agency—received an
anonymous phone call alleging that Dr. Chaudhry left the
operating room while Perez’s chest was still open, and then
left the hospital while his PA Albakova and assistant surgeon
Dhillon finished the surgery. Because the California Health
6 CHAUDHRY V. ARAGÓN
and Safety Code requires onsite investigations if CDPH
receives a written or oral complaint indicating “an ongoing
threat of imminent danger of death or serious bodily harm,”
see Cal. Health & Safety Code § 1279.2(a)(1), CDPH
initiated an investigation of the Hospital.
Accordingly, from around April 16 to 19, 2012, a
surveyor for CDPH conducted the onsite investigation of the
Hospital on behalf of the state. During his investigation, the
surveyor did not interview Dr. Chaudhry, Dr. Dhillon, Dr.
Bhatt, or PA Albakova. Defendant Steven Lopez—then a
Health Facilities Evaluator Supervisor for CDPH—verified
and supervised the state investigation.
CDPH, like many other state agencies, has an agreement
with the federal government to conduct validation surveys of
hospitals that participate in Medicare1 and Medicaid2 to
ensure compliance with minimum health and safety
standards. See 42 C.F.R. § 488.10(a)(1), (c). As part of these
hospital surveys, CDPH surveyors document assessed
violations, otherwise known as “deficiencies,” which are
ultimately presented to the surveyed facility in a “Statement
of Deficiencies.” 42 C.F.R. § 401.133(a). When CDPH
conducts both state and federal investigations of a single
1
Medicare is the U.S. federal health insurance program for adults over
sixty-five and certain other people with disabilities. See What’s
Medicare?, Medicare.gov, https://www.medicare.gov/what-medicare-
covers/your-medicare-coverage-choices/whats-medicare (last visited
Apr. 20, 2023).
2
“Medicaid provides health coverage to . . . eligible low-income adults,
children, pregnant women, elderly adults and people with disabilities.
Medicaid is administered by states, according to federal requirements.”
See Medicaid, Medicaid.gov, https://www.medicaid.gov/medicaid/inde
x.html (last visited Apr. 20, 2023).
CHAUDHRY V. ARAGÓN 7
hospital, it produces separate Statements of Deficiencies for
each survey. Once the investigated facility receives a
Statement of Deficiencies—whether state or federal—the
hospital must create and submit for approval a Plan of
Correction to address the assessed violations. See 42 C.F.R.
§ 488.424; Cal. Health & Safety Code § 1280(b).
From July 13 to 17, 2012, Defendant Shirley
Campbell—then a Health Facilities Evaluator Manager I for
CDPH, now retired—along with another CDPH employee,
now deceased, conducted an onsite investigation of the
Hospital on behalf of the Centers for Medicare & Medicaid
Services (“CMS”), a division of the United States
Department of Health and Human Services.3 Defendant
Campbell interviewed Dr. Chaudhry as part of this federal
investigation. Here too, Defendant Lopez of CDPH verified
and supervised the federal investigation.
As a result of these hospital surveys, CDPH surveyors
produced two Statements of Deficiencies: one on behalf of
the state, and one on behalf of the federal entity.
On July 27, 2012, after receiving the preliminary federal
findings from CMS, the President and Chief Executive
Officer of the Hospital sent a letter requesting that Dr.
Chaudhry immediately step down as Medical Director of
Cardiac Surgery and Thoracic Services. On August 8, 2012,
CMS transmitted the formal federal Statement of
Deficiencies to the Hospital.
Dr. Chaudhry appeared before the Hospital’s Medical
Executive Committee on August 15, 2012, and on August
3
See About CMS, CMS.gov, https://www.cms.gov/About-CMS/About-
CMS (last visited Apr. 20, 2023).
8 CHAUDHRY V. ARAGÓN
21, he received a fourteen-day medical staff membership and
clinical privileges suspension via letter from the President of
the Hospital’s Medical Staff. This letter explained that after
reviewing the findings of the outside peer reviewer, the
Medical Executive Committee concluded the following:
• There is evidence that the patient [Perez]
was unstable following the conclusion of
surgery; . . .
• In leaving the [operating room] and the
hospital, [Dr. Chaudhry] failed to
designate another physician qualified to
provide the necessary coverage or care
for this patient;
• As a result of [Dr. Chaudhry’s] failure,
there was an untimely response to the
patient’s deteriorating condition;
...
• [Dr. Chaudhry] ha[d] already been
directed to remain in the [operating room]
until the patient’s chest is closed; and
• Therefore, a fourteen-day (14) medical
staff membership and clinical privileges
suspension is imposed and shall be served
within three (3) months of August 16,
2012.
On August 23, 2012, the Hospital submitted to CMS its
Plan of Correction—prepared by the Hospital’s Risk
Manager, Laura McComb—in response to the federal
Statement of Deficiencies. Thereafter, on January 28, 2013,
CHAUDHRY V. ARAGÓN 9
CDPH—specifically Defendant Campbell—transmitted the
state Statement of Deficiencies to the Hospital. The Hospital
submitted to CDPH its Plan of Correction—also prepared by
McComb—in response to the state Statement of
Deficiencies on February 14, 2013. Defendant Lopez
reviewed and signed the Hospital’s federal and state Plans of
Correction.
On June 14, 2013, the Hospital declined to renew a
Consultant Services Agreement with Dr. Chaudhry.
On October 10, 2013, CDPH published on its website the
combined state Statement of Deficiencies and Plan of
Correction. This state Statement of Deficiencies did not
mention Dr. Chaudhry or any other individual by name, but
it referred to Dr. Chaudhry as “CVS 1.” Importantly, the
October-published state Statement of Deficiencies “found”
among other things, that: (1) “CVS 1 left the [operating
room] at 11:45 a.m. PA 14 and MD 15 sutured the chest
closed with metallic wire at approximately 12:00 p.m. and
then left the [operating room]” (footnotes not in original);
and (2) “CVS 1 left the open heart surgery on Patient 1 prior
to closing of the chest and prior to stabilization in violation
of hospital medical staff bylaws.” Neither CDPH nor CMS
made available to the general public the federal Statement of
Deficiencies and Plan of Correction. Only the Hospital—
and not Dr. Chaudhry—had a right to appeal the state
Statement of Deficiencies to CDPH or the federal Statement
of Deficiencies to CMS. See Cal. Health & Safety Code §
1280(c)(1); 42 C.F.R. § 488.331(a)(2).
4
“PA 1” represents physician assistant Albakova.
5
“MD 1” represents Dr. Dhillon.
10 CHAUDHRY V. ARAGÓN
On November 13, 2013, the Hospital declined to renew
a Call Coverage Agreement with Valley Cardiac.
On December 23, 2013, after being alerted to the
potential malfeasance of Dr. Chaudhry by Hospital
employee James Robillard, the family of Perez filed a
malpractice lawsuit against Dr. Chaudhry and others in
Fresno County Superior Court. See Arteaga v. Fresno Cmty.
Reg’l Med. Ctr., No. 13CECG03906 (Cal. Super. Ct. filed
Dec. 23, 2013) (“Perez Malpractice Case”). Robillard
supervised Schreur, who was the perfusionist during the
surgery, and asked Schreur to write up the events of the
surgery within days of it taking place; Robillard learned of
the events of the surgery from Schreur, and not from the
CDPH investigation.
On November 25, 2014, more than a year after
publication on CDPH’s website, CDPH amended the state
Statement of Deficiencies to account for certain
discrepancies revealed by “information from [the
Hospital’s] risk manager interview and comparison with
clinical hospital records.” Specifically, the state Statement
of Deficiencies was revised to “find” that CVS 1 (Dr.
Chaudhry) left the operating room at 12:15 p.m. on the day
of the Perez surgery.6 The amended state Statement of
Deficiencies, which was published on CDPH’s website,
retained statements that CVS 1 left an unqualified and
6
Recall that the original state Statement of Deficiencies found that “CVS
1 left the [operating room] at 11:45 a.m. PA 1 and MD 1 sutured the
chest closed with metallic wire at approximately 12:00 p.m. and then left
the [operating room].” It is now a stipulated fact that Dr. Chaudhry did
not leave the operating room before 12:15 p.m. on the day of the Perez
surgery.
CHAUDHRY V. ARAGÓN 11
unsupervised staff in charge of the operating room while the
patient was unstable.
Following publication of the state Statement of
Deficiencies, the Medical Board of California began
investigating Dr. Chaudhry. In December 2014, the Medical
Board of California determined that it would take no action
against Dr. Chaudhry. As a result, Dr. Chaudhry remains
licensed to practice medicine in California.
Dr. Chaudhry performed his last surgery at the Hospital
in January 2018. By February 2018, Dr. Chaudhry had at
least five other malpractice lawsuits pending against him in
addition to the Perez Malpractice Case. Per Dr. Chaudhry’s
own assessment, as a result of these lawsuits, his
professional liability insurer, Norcal, terminated his policy.
Although other companies remained willing to insure him,
Dr. Chaudhry determined that he could not afford such
policies. In March 2018, a California jury awarded the Perez
family damages in excess of $60 million against Dr.
Chaudhry and the Hospital.
Dr. Chaudhry is no longer practicing medicine in the
United States but continues to practice in his home country
of Pakistan at a reduced income.
B. Procedural Background
Plaintiffs filed suit in Fresno County Superior Court, and
Defendants timely removed to federal court. Plaintiffs’
Complaint asserts a two-count “stigma-plus” due process
claim under § 1983 on the grounds that the state’s “blatantly
false report” deprived Plaintiffs of protected employment-
related interests without the due process of law ensured by
the Fourteenth Amendment of the United States
Constitution. Importantly, Plaintiffs’ Complaint alleges that
12 CHAUDHRY V. ARAGÓN
it is only the state Statement of Deficiencies—and not the
federal Statement of Deficiencies—that is the source of their
claim.
Plaintiffs’ first count against the Director of CDPH in his
official capacity seeks declaratory and injunctive relief in the
form of a court order requiring the Director to withdraw the
state Statement of Deficiencies and replace it with a new
report “vindicating Dr. Chaudhry[] and his medical group.”
Plaintiffs’ second count against Defendants Lopez,
Campbell, and Eric Creer7—in their personal capacities—
seeks money damages for their roles in “falsifying [the]
CDPH report, and then refusing to correct said report” in
derogation of Plaintiffs’ due process rights.
All Defendants filed a motion for summary judgment on
the grounds that they are immune from liability.8 United
States Chief District Judge Lawrence J. O’Neill granted
summary judgment to Defendant Creer and denied summary
judgment to all other Defendants. This action was then
assigned, pursuant to parties’ consent, to Magistrate Judge
Stanley A. Boone for all purposes, including trial and entry
of final judgment.
After a five-day bench trial, the district court entered
judgment in favor of Defendants on the grounds that
Plaintiffs did not successfully prove several of the requisite
elements of their “stigma-plus” due process claim under
§ 1983; accordingly, the district court dismissed Plaintiffs’
7
Defendant Creer was, at all relevant times, the Public Records
Coordinator at CDPH’s Center for Healthcare Quality in Sacramento.
8
“Government officials sued in their individual capacities under § 1983
may raise the affirmative defenses of qualified or absolute immunity.”
Butler v. Elle, 281 F.3d 1014, 1021 (9th Cir. 2002).
CHAUDHRY V. ARAGÓN 13
action in its entirety on the merits with prejudice. In so
ruling, the district court denied Plaintiffs’ motion to admit
certain prior testimony of McComb from the Perez
Malpractice Case. Plaintiffs timely filed their notice of
appeal.
C. Legal Background
1. 42 U.S.C. § 1983By the plain terms of § 1983, a cause of action will lie
where a plaintiff proves that: (1) a person acting under color
of State law; (2) subjects or causes to be subjected to
deprivation; (3) a U.S. citizen or person in the jurisdiction of
the United States; (4) of a right, privilege, or immunity
secured by the Constitution and laws.9 Only the second and
fourth elements are contested in the case at bar.10
9
We have at times described § 1983 claims as comprising “two essential
elements.” Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th
Cir. 2006) (emphasis added); see also Gini v. Las Vegas Metro. Police
Dep’t, 40 F.3d 1041, 1044 (9th Cir. 1994) (“To make out a cause of
action under section 1983, [a plaintiff] must plead that (1) the defendants
acting under color of state law (2) deprived [her] of rights secured by the
Constitution or federal statutes.” (second alteration in original)).
Although this characterization may consolidate certain constituent
showings, such framing is not inconsistent with—nor does it purport to
eliminate—any of the statute’s plain-term requirements that a plaintiff
seeking relief under § 1983 must prove: (1) a person acting under color
of State law; (2) subjects or causes to be subjected to deprivation; (3) a
U.S. citizen or person in the jurisdiction of the United States; (4) of a
right, privilege, or immunity secured by the Constitution and laws.
10
Concerning the first element, it is an undisputed fact that “defendants
were employees of California Department of Public Health and acting
under color of State Law” “[a]t all relevant times,” such that Plaintiffs
14 CHAUDHRY V. ARAGÓN
a. Subjects or Causes to Be Subjected to
Deprivation
“In a § 1983 action, the plaintiff must . . . demonstrate
that the defendant’s conduct was the actionable cause of the
claimed injury.” Harper v. City of Los Angeles, 533 F.3d
1010, 1026 (9th Cir. 2008). Such causation “can be
established” either “by some kind of direct personal
participation in the deprivation” or “by setting in motion a
series of acts by others which the actor knows or reasonably
should know would cause others to inflict the constitutional
injury.” Gini v. Las Vegas Metro. Police Dep’t, 40 F.3d
1041, 1044 (9th Cir. 1994) (quoting Merritt v. Mackey, 827
F.2d 1368, 1371 (9th Cir. 1987)). “To meet [§ 1983’s]
causation requirement, the plaintiff must establish both
causation-in-fact11 and proximate causation.”12 Harper, 533satisfy the “color of state law” requirement of their § 1983 claim without
need for further proof or discussion.
Likewise, parties agree that “[t]he events which underlie this action
occurred in the Eastern District of California, and in particular, Fresno
County,” such that Plaintiffs satisfy the third, jurisdictional requirement
of their § 1983 claim without need for further proof or discussion.
11
A defendant’s “conduct is an actual cause,” or cause-in-fact, “of [a
plaintiff’s] injury only if the injury would not have occurred ‘but for’
that conduct.” White v. Roper, 901 F.2d 1501, 1505–06 (9th Cir. 1990)
(citing W. Prosser & W. Keeton, The Law of Torts § 41, at 266 (5th ed.
1984)).
12
A defendant’s conduct is a “proximate cause” of a plaintiff’s injury if
“it was not just any cause, but one with a sufficient connection to the
result.” Paroline v. United States, 572 U.S. 434, 444 (2014). “Proximate
cause is often explicated in terms of foreseeability,” such that the
proximate cause requirement “preclude[s] liability in situations where
the causal link between conduct and result is so attenuated that the
consequence is more aptly described as mere fortuity.” Id. at 445.
CHAUDHRY V. ARAGÓN 15
F.3d at 1026 (footnotes not in original). “Without [such]
caus[ation], there is no section 1983 liability.” Van Ort v.
Est. of Stanewich, 92 F.3d 831, 837 (9th Cir. 1996).
b. Of a Right, Privilege, or Immunity
Secured by the Constitution and Laws
Lodging a claim under § 1983 also requires Plaintiffs to
show they were deprived of a right, privilege, or immunity
secured by the Constitution and laws. 42 U.S.C. § 1983.
Here, Plaintiffs anchor their § 1983 claim on alleged
deprivations of procedural due process under the Fourteenth
Amendment of the United States Constitution.13
i. “Stigma-Plus” Due Process Claims
Specifically, they contend that “[CDPH’s] false report”
caused them to lose protected employment-related property
and liberty interests without due process of law.14 Although
the Supreme Court has stated that damage to reputation—
without more—is insufficient to implicate the Fourteenth
13
The Due Process Clause of the Fourteenth Amendment establishes that
“[n]o State shall . . . deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1.
Although the Due Process Clause “confers both procedural and
substantive rights,” Armendariz v. Penman, 75 F.3d 1311, 1318 (9th Cir.
1996) (en banc), Plaintiffs in the case at bar allege only violations of their
procedural due process rights.
14
We note that Plaintiffs’ First Amended Complaint only expressly
alleges deprivation of employment-related property interests, as the
word “liberty” does not appear in the Complaint. Nevertheless, the
district court appears to have interpreted Plaintiffs’ Complaint to
encompass alleged deprivations of both property and liberty interests.
Because Defendants’ briefing before us also appears to accept that
Plaintiffs have pled deprivations of both liberty and property interests,
we likewise proceed on such a basis.
16 CHAUDHRY V. ARAGÓN
Amendment’s Due Process Clause, see Paul v. Davis, 424
U.S. 693, 706 (1976), a “stigma-plus” due process claim
may lie where reputational harm “[i]s accompanied by some
additional deprivation of liberty or property,” Miller v.
California, 355 F.3d 1172, 1178 (9th Cir. 2004) (citing Paul,
424 U.S. at 708–09).
To lodge such a “stigma-plus” due process claim, “a
plaintiff must show”: (1) “the public disclosure of a
stigmatizing statement by the government;” (2) “the
accuracy of which is contested;” (3) “plus the denial of
‘some more tangible interest[] such as employment.’”15
15
Although the parties do not appear to contest that causation is an
essential element of a § 1983 claim, we note Plaintiffs’ citation to our
opinion in Hart v. Parks, 450 F.3d 1059 (9th Cir. 2006) and pause to
clarify a potential ambiguity.
Quoting Hart, Plaintiffs assert “[a] constitutional claim may lie if
the plaintiff ‘was stigmatized in connection with the denial of a more
tangible interest.’” Plaintiffs are quite correct that in Hart we stated “the
‘stigma-plus’ test . . . can be satisfied in two ways”: “[f]irst, the plaintiff
must show that the injury to his reputation was inflicted in connection
with the deprivation of a federally protected right;” “[s]econd, the
plaintiff must show that the injury to reputation caused the denial of a
federally protected right.” Id. at 1070 (emphasis in original).
At first glance, it may seem that this language—which suggests that
proving causation is but one pathway to lodge a cognizable “stigma-
plus” due process claim—is in tension with our further instruction that
“[w]ithout . . . caus[ation], there is no section 1983 liability.” Van Ort,
92 F.3d at 837. But such language is indeed consistent. Hart provides
only that for the purpose of establishing a “stigma-plus” due process
claim, the attendant “stigma” does not itself need to have caused the
alleged deprivation of a protected right; however, whether the stigma
caused or was merely incidental to the relevant deprivation, by the plain
language of 42 U.S.C. § 1983, a person acting under color of state law
CHAUDHRY V. ARAGÓN 17
Ulrich v. City & County of San Francisco, 308 F.3d 968, 982
(9th Cir. 2002) (alterations in original) (quoting Paul, 424
U.S. at 701).
2. Summation: Elements of a “Stigma-Plus” Due
Process Claim under § 1983
In short, to lodge a cause of action under § 1983,
Plaintiffs must establish that Defendants, (1) acting under
color of State law, (2) caused (3) Plaintiffs, as U.S. citizens
or persons within the jurisdiction of the United States, (4) a
deprivation of rights, privileges, or immunities secured by
the Constitution and laws. And further, to prove a
deprivation of rights under § 1983 pursuant to a “stigma-
plus” due process claim, Plaintiffs must establish: (1) the
public disclosure of a stigmatizing statement by a state actor;
(2) the accuracy of which is contested; (3) plus the denial of
some more tangible interest. Failure to establish any of these
enumerated elements will defeat Plaintiffs’ “stigma-plus”
due process claim under § 1983.
II. STANDARD OF REVIEW
We review a district court’s findings of fact following a
bench trial for clear error, see Fed. R. Civ. P. 52(a)(6), and
will reverse “only if the district court’s findings are . . .
illogical, implausible, or without support in inferences from
the record.” Oakland Bulk & Oversized Terminal, LLC v.
City of Oakland, 960 F.3d 603, 613 (9th Cir. 2020). We
review a district court’s conclusions of law de novo. Yu v.
must have caused—either directly or by setting in motion a series of
acts—the alleged deprivation of a protected right.
Thus, to the extent there was any ambiguity, causation is an essential
element of a § 1983 claim.
18 CHAUDHRY V. ARAGÓN
Idaho State Univ., 15 F.4th 1236, 1242 (9th Cir. 2021). And
we review a district court’s evidentiary rulings for abuse of
discretion, meaning we will disturb a district court’s ruling
only if it is both “erroneous and prejudicial.” Barranco v.
3D Sys. Corp., 952 F.3d 1122, 1127 (9th Cir. 2020)
(emphasis in original) (quoting Wagner v. County of
Maricopa, 747 F.3d 1048, 1052 (9th Cir. 2013)).
In § 1983 cases, we review a district court’s assessments
of actual and proximate cause for clear error. See Harper,
533 F.3d at 1026 n.13. Under this standard of review, “[i]f
the district court’s account of the evidence is plausible in
light of the record viewed in its entirety, [we] may not
reverse it.” Anderson v. City of Bessemer City, 470 U.S. 564,
573–74 (1985) (emphasis added). Accordingly, even
“[w]here there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly
erroneous.” Id. at 574.
III. DISCUSSION
The district court held that Plaintiffs did not successfully
prove several of the required elements of a “stigma-plus”
due process claim under § 1983 and, thus, dismissed
Plaintiffs’ action in its entirety. Plaintiffs challenge before
us each negative elemental finding of the district court as
well as the court’s decision to exclude certain prior
testimony from the Perez Malpractice Case. Even
considering the excluded testimony arguendo, at a
minimum, we sustain the district court’s determination that
Plaintiffs failed to establish the requisite causation element
under § 1983. As such, we affirm the district court’s
dismissal of Plaintiffs’ action in its entirety and do not reach
the other challenged elements.
CHAUDHRY V. ARAGÓN 19
A. We Sustain the District Court’s Finding That
Plaintiffs Failed to Establish the Requisite
Causation for a § 1983 Claim.
Plaintiffs must demonstrate that Defendants’ conduct
was both the actual and proximate cause of their claimed
deprivation in order to state a cause of action under § 1983.
See Harper, 533 F.3d at 1026. The district court assessed
that “Plaintiffs ha[d] not demonstrated by a preponderance
of the evidence that any . . . constitutional injury . . . would
not have been effected but for the State . . . investigations
and reports.” (Emphasis not in original). Plaintiffs now ask
us to hold that Defendants’ conduct indeed caused their
deprivations of protected interests in the form of their
“financial ability to make a living,” “stellar reputation,” and
“standing and associations in [the] community.”16 We
examine each of Plaintiffs’ alleged interest deprivations and
consider whether the district court clearly erred in finding
that Plaintiffs failed to establish these interests would not
have been affected “but for” the state Statement of
Deficiencies. Assessing no “clear error,” see id. at 1026
n.13, we sustain the district court’s negative causation
finding.17
16
As suggested above, because we sustain, infra, the district court’s
dispositive determination that Plaintiffs failed to establish the requisite
causation element for a § 1983 claim, we need not—and do not—reach
whether these purported interests indeed comprise protected liberty
and/or property interests under the Fourteenth Amendment.
17
We note that the parties raise several subsidiary questions under the
umbrella of causation:
First is whether Defendants’ conduct was sufficiently direct or
intentional so as to afford Plaintiffs a due process right to notice and a
20 CHAUDHRY V. ARAGÓN
1. Plaintiffs Failed to Clearly Establish That
They Would Not Have Lost Their “Financial
Ability to Make a Living” but for the State
Report.
We assess that Plaintiffs’ alleged loss of “financial
ability to make a living” manifested in two ways: (1)
Plaintiffs’ loss of positions and contracts with the Hospital;
and (2) “the effective shutdown of [their] medical practice.”
Addressing each in turn, we are not “left with the definite
and firm conviction” that the state report is the but-for cause
of either. Anderson, 470 U.S. at 573 (internal quotation
marks and citation omitted).
hearing. See, e.g., O’Bannon v. Town Ct. Nursing Ctr., 447 U.S. 773,
788–89, 789 n.22 (1980) (drawing a “distinction between government
action that directly affects a citizen’s legal rights”—which confers a due
process right to notice and a hearing—and “action that is directed against
a third party and affects the citizen only indirectly or incidentally”—
which does not—while leaving open the possibility that “if the
Government were acting against one person for the purpose of punishing
or restraining another, the indirectly affected individual might have a
constitutional right to some sort of hearing”).
Second is whether Defendants were sufficiently involved in the
creation of the state Statement of Deficiencies so as to be responsible for
any injury flowing from it. See, e.g., Leer v. Murphy, 844 F.2d 628, 633
(9th Cir. 1988) (“The inquiry into causation must be individualized and
focus on the duties and responsibilities of each individual defendant
whose acts or omissions are alleged to have caused a constitutional
deprivation.”).
We hold, infra, that Plaintiffs have not clearly established that the
state Statement of Deficiencies—which Plaintiffs identify as the
overriding source of their injury—was indeed the “but for” cause. As
such, we affirm dismissal of Plaintiffs’ entire action for lack of actual
causation, see Harper, 533 F.3d at 1026, without need to reach or resolve
these subsidiary causation questions.
CHAUDHRY V. ARAGÓN 21
a. Plaintiffs’ Loss of Positions and Contracts
with the Hospital
After the Perez surgery, the Hospital:
• asked Dr. Chaudhry to step down as
Medical Director of Cardiac Surgery and
Thoracic Services;
• suspended Dr. Chaudhry’s medical staff
membership and clinical privileges for
fourteen days;
• declined to renew a Consultant Services
Agreement with Dr. Chaudhry; and
• declined to renew a Call Coverage
Agreement with Valley Cardiac.
The district court held that Plaintiffs failed to demonstrate
that Dr. Chaudhry would not have been removed from his
position, or that either of the Plaintiffs would not have lost
contracts or business, but for the publication of the state
Statement of Deficiencies. We conclude that “the district
court’s account of the evidence is plausible in light of the
record viewed in its entirety.” Id. at 573–74.
First, it is established that the Hospital would have
conducted its own investigation into the Perez surgery with
or without the state’s involvement. The Hospital’s Plan of
Correction indicated that the Hospital began its internal
investigation into the Perez surgery on April 2, 2012—the
very same day that the operation occurred. Second, it is
undisputed that CDPH did not even receive the anonymous
call about the Perez surgery—which launched the state
22 CHAUDHRY V. ARAGÓN
investigation—until April 11, 2012, more than a week after
the Hospital began its investigation.
Moreover, the district court correctly noted that the
Hospital’s internal investigation yielded the same material
conclusions as the state Statement of Deficiencies. For
example, in a letter dated August 21, 2012—several months
before CDPH’s transmittal of the allegedly stigmatizing
state Statement of Deficiencies to the Hospital, which
occurred on January 28, 2013—the President of the
Hospital’s medical staff informed Dr. Chaudhry that:
The Medical Executive Committee’s
[i]nvestigation [has] concluded the
following:
• There is evidence that the patient was
unstable following the conclusion of
surgery; . . .
• In leaving the [operating room] and the
hospital, you failed to designate another
physician qualified to provide the
necessary coverage or care for this
patient;
• As a result of your failure, there was an
untimely response to the patient’s
deteriorating condition; . . .
• You have already been directed to remain
in the [operating room] until the patient’s
chest is closed; and
• Therefore, a fourteen-day (14) medical
staff membership and clinical privileges
suspension is imposed and shall be served
CHAUDHRY V. ARAGÓN 23
within three (3) months of August 16,
2012.
The state Statement of Deficiencies similarly found that:
• “CVS 1 left the [operating room] prior to
closure of the chest bones back together .
. . [which] violated the hospital’s Rules
and Regulations under the Bylaws which
do not permit the primary surgeon to
leave the [operating room] prior to the
patient being established as stable;”
• “CVS 1 left in-charge an individual not
qualified to be left in charge;” and
• “Patient 1 suffered massive blood loss
after CVS 1 left the [operating room] and
subsequently suffered cardiac arrest,” and
when the patient coded at 12:55 p.m.,
CVS 1 “wasn’t in and they had to do
something. [A nurse] got (CVS 1) on the
phone and got the phone to (PA 1’s) ear .
. . . He instructed (PA 1) how to . . . insert
a tube . . . but she could not do it. (CVS
1) came in at 1:29 p.m. and adjusted the
cannulas.”
In light of these determinations by the Medical Executive
Committee, and their similarity to those in the subsequently
issued state Statement of Deficiencies, we cannot say the
district court clearly erred in finding “it . . . plausible that
these same findings and conclusions would have led to
24 CHAUDHRY V. ARAGÓN
further discipline, including removal of the directorship, and
declining to renew contracts.”18
18
Plaintiffs argue this “chain of causation neatly leaves out the
influence” that CDPH exerted to coerce the Hospital into disciplining Dr.
Chaudhry. Correspondingly, Plaintiffs challenge the district court’s
exclusion of certain prior testimony of Laura McComb, which they
maintain “reveals the intent of [Defendants] to make threats and inflict
harsh punishment . . . against Dr. Chaudhry.”
Even assuming arguendo the district court erred in excluding the
identified prior McComb testimony, we conclude that any such error was
nonprejudicial because the excluded testimony does not support—but
rather contradicts—Plaintiffs’ attendant arguments. See Barranco, 952
F.3d at 1127 (instructing that a reviewing court will not disturb a district
court’s evidentiary ruling unless it is both erroneous and prejudicial).
First, the excluded testimony expressly refutes Plaintiffs’ position
that CDPH sought “harsher discipline visited on Dr. Chaudhry” through
its rejection of multiple Plans of Correction proffered by the Hospital:
Q. . . . [W]hat was the primary complaint that
[Defendant] Campbell voiced to you about the first
plan of correction that was rejected?
A. The primary complaints dealt with specificity of the
education, listing it out, and the specificity of what
occurred in the disciplinary measures for Dr.
Chaudhry.
Q. And so is it correct that the State wanted you—the
State is telling you that they want harsher discipline
visited on Dr. Chaudhry in this plan of correction; is
that right?
A. No. They wanted it specified clearly.
Moreover, quite apart from showing “willful refusal to correct
[mis]statements” indicative of Defendants’ ulterior motives, McComb’s
prior testimony suggests there was nothing “unusual” about Defendants
CHAUDHRY V. ARAGÓN 25
b. The Effective Shutdown of Plaintiffs’
Medical Practice
Plaintiffs further dispute the district court’s conclusion
that Plaintiffs did “not demonstrate[]” that they would not
have “lost . . . business but for the publication of the State
[report].” Plaintiffs maintain that “the false accusations” in
the state Statement of Deficiencies caused Dr. Chaudhry to
be “run out of town on a rail,” such that Plaintiffs could no
longer maintain their once “thriving medical practice.”
Accounting for certain concurrent developments identified
by the district court, we cannot say the district court clearly
erred in holding that the state report was not the but-for cause
of the “effective shutdown of [Plaintiffs’] medical practice.”
We begin by noting a few key facts concerning the end
of Plaintiffs’ U.S. practice: First, Dr. Chaudhry is not—and
has never—been barred from practicing medicine in
California, as the state Medical Board declined to take action
against him in December 2014. Second, Dr. Chaudhry is not
even barred from practicing medicine at the Hospital, as—
by his own account—he performed a case at the Hospital in
January 2018. Critically, however, Dr. Chaudhry no longer
declining to make certain requested amendments to the state Statement
of Deficiencies.
In short, where the prior McComb testimony is not the “smoking
gun” Plaintiffs represent it to be, we decline to disturb the district court’s
exclusion of it. There is no support for Plaintiffs’ attendant suggestion
that the excluded McComb testimony establishes that the Hospital would
not have disciplined Dr. Chaudhry or discontinued certain contracts with
Plaintiffs but for the influence or coercion of Defendants.
26 CHAUDHRY V. ARAGÓN
has professional liability insurance, and—as he himself
acknowledges—he cannot practice without it:
[DEFENDANTS’ COUNSEL]: You said
you lost your ability to obtain malpractice
insurance in . . . 2018?
[DR. CHAUDHRY]: . . . [M]y last case at
[the Hospital] is January of 2018. You cannot
practice unless you have malpractice. After
that, Norcal dropped [me] because it was
costing them too much. Then I checked with
other insurances. They were willing to give
me insurance, but the cost was too high.
(Emphasis added). Equally critically, Dr. Chaudhry himself
offers that his insurer dropped him because of the multiple
malpractice lawsuits against him:
[DEFENDANTS’ COUNSEL]: . . . Isn’t it
true that by February 2018, when the cost of
malpractice insurance was so high that you
could no longer afford it, you had at least five
other malpractice lawsuits against you in
addition to the Perez case?
[DR. CHAUDHRY]: Correct. And that’s
why Norcal dropped it because it was costing
them too much.
(Emphasis added).
Accordingly, where—as Dr. Chaudhry concedes—he
could not continue to practice medicine without malpractice
insurance, and where—as again, Dr. Chaudhry concedes—
his insurer dropped him due to the malpractice lawsuits
CHAUDHRY V. ARAGÓN 27
against him, the key question is whether the state Statement
of Deficiencies caused the malpractice lawsuits. If not,
Plaintiffs’ assertion that the state report was the but-for cause
of the end of Dr. Chaudhry’s U.S. medical practice cannot
stand. Thus, in order to test this causal relationship, the
district court asked:
1. Would Perez’s family and/or estate not have pursued
legal action but for the CDPH investigation and
report?
2. Would the Perez lawsuit not have moved forward but
for the CDPH investigation and report?
The district court concluded that each of these developments
would indeed have occurred in the absence of the state’s
involvement, and we deem its assessment “plausible in light
of the record viewed in its entirety.” Anderson, 470 U.S. at573–74.
To the first question, it is an undisputed fact that another
Hospital employee, James Robillard—and not any
government report—first alerted the Perez family to the
potential malfeasance of Dr. Chaudhry during the April 2,
2012 surgery:
[DEFENDANTS’ COUNSEL]: . . . [T]he
Perez family learned of … what had
transpired in the operating room on April
2nd, 2012 not from the state report that was
published, but from Mr. Robillard.
[THE COURT]: So stipulated?
[PLAINTIFFS’ COUNSEL]: It’s stipulated.
28 CHAUDHRY V. ARAGÓN
In turn, Robillard learned what transpired during the Perez
surgery from the perfusionist, Schreur, and not from any
government report. Thus, it is certainly plausible that the
Perez family and/or estate would have pursued legal action
against Dr. Chaudhry with or without the state Statement of
Deficiencies.
Having accepted that the Perez family and/or estate
plausibly would have pursued legal action in the absence of
the state Statement of Deficiencies, we next accept as
plausible that at least the Perez lawsuit would have moved
forward without the state report. Pursuant to a request by
Robillard, Schreur—a percipient witness in the operating
room during the Perez operation—reduced to writing his
largely contemporaneous account of the events of the
surgery, which included Schreur’s opinion that Dr.
Chaudhry committed “gross negligence” that “need[ed] to
be thoroughly investigated.” Moreover, trial testimony from
arguably the key percipient witness to the Perez operation,
PA Albakova, corroborated that Dr. Chaudhry left the
operating room while the patient’s chest was still open:
Q. Did you see Dr. Chaudhry exit the OR?
A. Yeah, I saw him, yes.
...
Q. And then you proceeded to place the chest
tubes?
A. Yes.
Q. And then you wired the sternum?
A. Yes.
CHAUDHRY V. ARAGÓN 29
Q. And then you and Dr. Dhillon closed the—
several layers of skin?
A. Yes.
Lastly, the aforementioned August 21, 2012 letter from the
Hospital’s Medical Executive Committee—which
incorporated the findings of an independent peer reviewer—
concluded that Dr. Chaudhry’s departure from the operating
room was premature and in violation of hospital policies, as
well as ascribed blame to Dr. Chaudhry for the unfortunate
outcome of the surgery.
Thus, in light of the record evidence, we deem it entirely
plausible that the Perez lawsuit would have moved forward
without the fact of the state report. Moreover, we deem it
plausible—in light of the same record evidence—that the
Perez family could have secured a judgment against Dr.
Chaudhry in said lawsuit without the state Statement of
Deficiencies.19
In sum, Dr. Chaudhry submits that his medical
malpractice insurer dropped him as a result of the several
lawsuits against him. We have just accepted as plausible the
subsidiary points that at least the Perez Malpractice Case
could have proceeded and resulted in a judgment against Dr.
Chaudhry even in the absence of the state report. It is
therefore correspondingly plausible that Dr. Chaudhry’s
insurer would have dropped him, and that alternative
medical insurance proved prohibitively expensive, even in
the absence of the state report. Thus, where Dr. Chaudhry
19
Recall the parties stipulated that the jury in the Perez Malpractice Case
awarded damages against Dr. Chaudhry and the hospital in excess of $60
million.
30 CHAUDHRY V. ARAGÓN
himself acknowledges that he could not continue to practice
medicine in the United States without medical liability
insurance, we cannot say that the district court clearly erred
in assessing that the state report was not the but-for cause of
“the effective shutdown of [Plaintiffs’] medical practice.”
c. Summation: Plaintiffs’ “Financial Ability
to Make a Living”
Because we sustain as “plausible in light of the record
viewed in its entirety,” Anderson, 470 U.S. at 573–74, the
district court’s findings that the state Statement of
Deficiencies was not the but-for cause of either Plaintiffs’
loss of positions and contracts with the Hospital or “the
effective shutdown of [their] medical practice,” we are not
persuaded by Plaintiffs’ contention that the state report
clearly caused them to lose their “financial ability to make a
living.”
2. Plaintiffs Failed to Clearly Establish That
They Would Not Have Lost Their “Stellar
Reputation” and “Standing and Associations
in Their Community” but for the State
Report.
Finally, we briefly consider and deem unpersuasive
Plaintiffs’ suggestion that the district court clearly erred in
holding they “failed to demonstrate that Dr. Chaudhry’s
reputation[] or standing in the . . . medical community at
large would not have been [a]ffected but for the State
[report].” Plaintiffs submit to us that “after the false
accusations were spread to the medical community” via the
state Statement of Deficiencies, Dr. Chaudhry’s “referrals
completely dried up.” But where we have already accepted
as plausible that at least the Perez Malpractice Case would
CHAUDHRY V. ARAGÓN 31
have proceeded in the absence of the state report, we cannot
say that it was clearly “the actions of the Defendants”—and
not this highly publicized lawsuit—that, in Plaintiffs’ words,
“demolished” their reputation and caused them a “massive
decline in referrals.”
3. Causation Conclusion
In short, the district court assessed that “the tragic events
surrounding Perez’s surgery” and Dr. Chaudhry’s violations
of certain hospital policies—and not the ostensibly
stigmatizing state Statement of Deficiencies—were the
causes of Plaintiffs’ alleged deprivations of their “financial
ability to make a living,” “stellar reputation,” and “standing
and associations in [the] community.” Far from “le[aving
us] with the definite and firm conviction that a mistake has
been committed,” id. at 573 (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)), the district court’s
negative causation finding is plausible in light of record
evidence establishing, inter alia: the timing and conclusions
of the Hospital’s internal investigations; the independent
actions of Hospital employee Robillard to alert the Perez
family to potential malfeasance by Dr. Chaudhry; the Perez
family and estate’s pursuit of legal action; the accounts of
key percipient witnesses to the Perez surgery as part of the
Perez Malpractice Case; and the sizable malpractice
judgment awarded against Dr. Chaudhry.
For the foregoing reasons, we sustain the district court’s
determination that Plaintiffs have failed to prove
“[D]efendant[s’] conduct was the actionable cause of the
claimed injury.” Harper, 533 F.3d at 1026.
32 CHAUDHRY V. ARAGÓN
B. We Do Not Reach the Remaining Claim
Elements.
Because we sustain the district court’s elemental
determination that Plaintiffs failed to establish causation
under § 1983, and because “there is no section 1983
liability” “[w]ithout . . . caus[ation],” Van Ort, 92 F.3d at
837, we affirm on causation grounds the district court’s
dismissal of Plaintiffs’ § 1983 “stigma-plus” due process
claim without reaching the remaining elements or
arguments.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s
dismissal of Plaintiffs’ action in its entirety.