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Date: 01-31-2023

Case Style:

Ronald Howes v. New Mexico Department of Health, et al.

Case Number: 1:21-cv-00263

Judge: James B. Browning

Court: United States District Court for the District of New Mexico (Bernalillo County)

Plaintiff's Attorney:

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Defendant's Attorney: Laura Renee Ackerman and Laureana A. Larkin

Description: Albuquerque, New Mexico civil rights lawyer represented Plaintiff, who sued Defendants on an employment discrimination theory.

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Dr. Howes is a clinical psychologist who, pursuant to a one-year contract with the placement firm (“Locumtenens”),[4] contracts with hospitals around the nation. See Removed Complaint ¶ 8 at 3; id. ¶ 51, at 7. Pursuant to a separate contract with Locumtenens, Defendant New Mexico Department of Health (“NMDOH”) employed Dr. Howes as a contractor at the New Mexico Behavioral Health Institute (“NMBHI”) beginning May, 2020. See Removed Complaint ¶ 2, at 2; id. ¶ 11, at 3. The contract between the NMDOH and Locumtenens is a standard contract that the NMDOH issues for services.

Dr. Howes was the contract's intended third-party beneficiary, in exchange for providing services to the NMDOH.

In its services contracts, the NMDOH grants itself the “unilateral right to terminate the contract for ‘cause or convenience.'” Locumtenens, on the other hand, has the right to terminate the contract only “for a ‘material, uncured breach.'” The contract also requires Locumtenens to give the NMDOH notice and an opportunity to cure. Locumtenens cannot terminate the contract if the NMDOH “notice[s] an intent to cure and [makes] any good faith effort to begin to cure the breach.” The contract requires both parties to give 30 days' notice of termination. The contract does not provide that the NMDOH can terminate the contracted employees that Locumtenens provides the NMDOH, with or without notice.

Dr. Howes required a reciprocal license to practice medicine in New Mexico. While he awaited his reciprocal license's approval, Dr. Howes worked under Dr. Matthias Stricherz' supervision. Dr. Howes is “already licensed in four other states, and has never experienced a single problem . . . obtaining a reciprocal license in any state he has worked in.” Dr. Howes did not encounter any problems while working under Dr. Stricherz.

On Thursday, June 25, 2020, Locumtenens called Dr. Howes and informed him that “someone from DOH had called Locumtenens and told them that Dr. Howes' license had been suspended after a complaint had been made that he was practicing medicine without a license.”

Practicing medicine without a license is a crime, and allegations that a doctor has practiced medicine without a license “is a serious and damaging allegation which can have lasting consequences.” Neither Dr. Stricherz nor NMBHI's Chief Medical Officer, Dr. Wendy Dimmette, had any knowledge about this allegation, and no one alerted Dr. Howes to any concerns regarding his performance before he received this phone call. Dr. Howes has since received no further information regarding this allegation. Dr. Massaro, the NMDOH's Chief Medical Officer and an NMBHI Governing Board member, made the decision to terminate immediately Dr. Howes' employment and contract. Grogan, NMBHI's hospital administrator, ordered someone -- presumably NMBHI security -- to escort Dr. Howes from the premises. Grogan is responsible for all NMBHI employment decisions. Dr. Howes did not receive any written documentation that explained why NMBHI terminated his contract, and did not have the opportunity to be heard or to defend himself or his reputation. Dr. Stricherz believed that Dr. Howes' termination was a mistake and appealed Dr. Howes' termination to Grogan, who denied the appeal. The New Mexico Regulation and Licensing Department, which oversees the Board of Psychological Examiners, granted Dr. Howes' license in August, 2020, “after a period of unexplained delay.” The New Mexico Regulation and Licensing Department has no record of anyone lodging a complaint or taking disciplinary action against Dr. Howes or his license. Because of his termination, Dr. Howes returned to South Carolina to search for another job. Dr. Howes has resorted to accepting several shorter-term contracts around the country, which requires that he incur costs to relocate and terminate leases."

Outcome: 01/31/2023 46 MEMORANDUM OPINION AND ORDER by District Judge James O. Browning DENYING 31 MOTION to Strike Plaintiff's Complaint; DISMISSING 29 Amended Complaint; DISMISSING 5 -1 Notice (Other); GRANTING 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , Qualified Immunity and Prohibition Against Implied Contracts with the State; DENYING 11 Opposed MOTION to Stay; DENYING 9 First MOTION to Remand to State Court .. (arp) Modified text on 2/1/2023 (cmm). (Entered: 01/31/2023)
01/31/2023 47 FINAL JUDGMENT by District Judge James O. Browning. (arp) (Entered: 01/31/2023)

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