Depape v. Trinity Health Systems, Inc.

242 F. Supp. 2d 585 (2003)

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Nature of the Case

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Facts

P is from British Columbia, Canada. He received his medical degree from the University of British Columbia and completed his specialty training in family medicine in June of 1999. He focused his medical training on rural medicine, and he hoped to practice in a small United States community as a family physician. On March 9, 1999, Trimark and P entered into a five-year Professional Employment Agreement. D would receive an annual income of $130,000 the first year, $140,000 the second year, and a percentage of his net production the following years. Trimark constructed a new office for P, guaranteed him an interest-free loan (up to $ 100,000) to pay his school debts, contributed to a 401 K plan on P's behalf, provided life insurance benefits, and agreed to pay for Dr. P's professional dues and licensure expenses. Trimark agreed to 'pay for the immigration costs.' Trinity and Trimark retained the D law firm in April of 1999. D was experienced in assisting Canadian physicians to immigrate to the United States. D had been successful in the past in gaining entry to the United States on behalf of at least six other Canadian physicians using the identical strategy it ultimately employed in P's case. P had not taken a three-stage set of examinations, known as the USMLE's, which precluded him from receiving one of the two visas available to foreign physicians--namely, the H-1B visa. D advised Trimark that P could enter the United States on one of two visas: either an H-1B visa or a TN visa. D was fully aware that P was not eligible for an H-1B visa. D did not even suggest that P should consider taking the USMLE's in order to become H-1B-eligible. D represented both Trimark and P. In order to perform direct patient care on an H-1B visa, the foreign physician must have successfully completed the USMLE's. The employer seeking to employ an H-1B visa-holder must petition the United States Secretary of Labor for labor certification. The employer places advertisements in various national newspapers in order to show that it made a good faith effort to employ a qualified United States citizen but was unable to find one. This showing is a prerequisite to receiving labor certification, and D wrote and published at least one job vacancy announcement on Trimark's behalf. D's ad intentionally emphasized the negative aspects of the job to discourage U.S. citizens from applying. D charged substantial fees for the H-1B efforts and D knew that P was not eligible for an H-1B visa. P declined taking the exams because he was never informed they would take about 6 months and P through they would take two years. Once the H1-B efforts failed, D switched gears and began working on a TN visa. D never discussed the stringent requirements of a TN visa with P. D knew that the position described in his Employment Agreement would not pass muster as an acceptable TN classification job description. D without consulting its clients concocted a fictitious job title and description of 'Physician Consultant' and described the duties of this position as a 'community health care needs assessment.' D had successfully used the community health care needs assessment in the past with at least six other Canadian physician TN entries. To put it bluntly, the job description created by D was a sham. The clients remained uninformed of this sham. P got ready to move and quit his job and shipped all his belongs to Iowa. P and his fiancée made arrangements to travel the nearly 3,000 miles to Buffalo, New York. Just before entry, P was shown the letter describing his position as a Physician Consultant and told that he could not work in the United States as a family physician. P was shocked, surprised, and outraged. The local immigration attorney convinced P that the community health care needs assessment was legal and only a mere technicality that would not impede him from practicing medicine. The INS official interviewing P did not believe that P. When the INS official asked P directly why he was going to the United States, P truthfully answered that he intended to practice family medicine. P was sent back to Canada. P tried reentry as a vistor, but that failed when he was recognized. P had no job, no home, and no possessions--not even his medical bag. No one at D ever attempted to contact P after his failed entry attempt on June 8, 2000. P sued D and Trinity for damages related to his inability to begin his job in the United States. The claims were dismissed against Trinity and Trimark.