Second physician denied preliminary reprieve from Ascension’s vaccine mandate

A family physician who claims she has “31 pregnant patients” relying on her to deliver their babies is still prohibited from practicing at Ascension St. Vincent Hospital after the Southern Indiana District Court denied her motion to have her privileges reinstated while she continues to battle the medical facility’s vaccine requirement.

Dr. Casey Delcoco, a board-certified family medicine doctor who specializes in obstetrics, runs her own clinic, Magnificat Family Medicine, and has clinical privileges at Ascension. She was among the group of hospital employees who sought a religious exemption to Ascension’s mandate that all employees be vaccinated against COVID-19.

In mid-December 2021, the hospital reversed course and recalled all the employees except Delcoco. She contended that not only did the hospital refuse to consider the sincerity of her religious beliefs, it also targeted and retaliated against her because she was the leader of the group of employees who protested the vaccine mandate.

The court found Delcoco did not demonstrate by “a clear showing” that without an injunction she is likely to suffer irreparable injury.

“Under the totality of circumstances, Dr. Delcoco has failed to make a ‘clear showing’ of irreparable injury or establish an insufficiency of remedies that would justify the extraordinary relief she seeks pending the outcome of this litigation,” Judge James Hanlon wrote in the order denying motion for preliminary injunction in Stephanie Payton RN, et al. v. Martin J. Walsh, United States Secretary of Labor, in his official capacity, Ascension St. Vincent Hospital, a Delaware Corporation Registered and doing business in Indiana, 1:21-cv-02817.

The ruling came just days after the U.S. District Court for the Southern District of Indiana denied similar arguments from a pediatric care physician at Ascension St. Vincent’s Peyton Manning Children’s Hospital. Paul Halczenko, M.D., was unable to convince the federal court that he was suffering irreparable harm to his skills and reputation after he lost his job because he refused the COVID-19 inoculation.

Although Delcoco did not submit any evidence to support her claims, the court stated that “for efficiency” it assumed she could verify the allegations of general as well as particularized harm set forth in the complaint and briefing.

Delcoco and the other plaintiffs asserted the mandate caused them to suffer irreparable harm including loss of employment, status, prestige, wages, seniority and future employment. Also, they claimed they would suffer irreparable harm “by the loss of their religious liberty if they take the vaccine or loss of employment if they do not.”

The district court was unpersuaded. It again noted Delcoco had not presented any evidence to suggest her loss of clinical privileges at Ascension would impact her reputation, work history, future employment, status or loss of professional relationships.

As for her religious liberty claims, the court echoed the reasoning of other courts that Delcoco can be compensated for any wrongful actions through traditional remedies at the end of the litigation.

“The allegations of hostility toward or disregard of religion are not taken lightly. However, ‘[r]einstatement pending a trial on the merits, even in cases of race or sex discrimination, is an extraordinary remedy permissible only upon a substantial showing of irreparable injury.’ … Moreover, the remedies provided by Title VII are designed expressly to make such wrongfully terminated plaintiffs whole,” Hanlon wrote, citing E.E.O.C. v. City of Janesville, 630 F.2d 1254, 1259 (7^th Cir. 1980), and Williams v. Pharmacia Inc. 137 F.3d 944, 952 (7th Cir. 1998).

Likewise, the court did not see any grounds for a preliminary injunction in response to Delcoco’s claims that she has “31 pregnant patients” and that her “oral and written contracts” with those patients were violated and breached by the actions of Ascension.

“She asserts that ‘[s]ignificant case law exists calling mere breach of contract an irreparable harm.’ However, Dr. Delcoco did not cite any authority support this argument,” Hanlon wrote. “Additionally, she has not shown that these patients cannot deliver their babies with her at another facility or without her at an Ascension facility.”