M.D. v. Sec'y

• Decision Date: 22 September 2010
• Docket Number: No. 09-15727.,09-15727.
• Citation: 620 F.3d 1280
• Parties: Jorge J. LEAL, Jorge J. Leal, M.D., Plaintiff-Appellant, v. SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, and his Successors, United States Department of Health and Human Services, National Practitioner Data Bank, an Entity of and Run by the U.S. Department of Health and Human Services, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

620 F.3d 1280

Jorge J. LEAL, Jorge J. Leal, M.D., Plaintiff-Appellant,

v.SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, and his Successors, United States Department of Health and Human Services, National Practitioner Data Bank, an Entity of and Run by the U.S. Department of Health and Human Services, Defendants-Appellees.

No. 09-15727.

United States Court of Appeals,Eleventh Circuit.

Sept. 22, 2010.

Sally A. Rasmussen, Lincoln, NE, for Plaintiff-Appellant.

Michelle Thresher Taylor, Tampa, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON and CARNES, Circuit Judges, and GOLDBERG, ^* Judge.

CARNES, Circuit Judge:

One day Dr. Jorge J. Leal, a urological clinician and surgeon, was waiting for the operating room at Cape Canaveral Hospital in Cocoa Beach, Florida to become available. It was, as the doctor would later describe it, “a very long day.” And not a good one for him. Instead, it appears that, like Alexander in the classic children's story, Dr. Leal was having “a terrible, horrible, no good, very bad day.” ¹ And at around 6:30 p.m., he was told that his use of the operating room was going to be delayed (for 20 minutes as it turned out). Apparently, that was the final straw for him.

What Dr. Leal did after he was told that he would have to wait to use the operating room led the Hospital to suspend his clinical privileges for a period of sixty days and to file a report explaining why. To summarize, in colloquial terms, that report's description of Dr. Leal's conduct: he pitched a fit. More specifically, the Hospital reported that Dr. Leal became so enraged that he broke a telephone, he shattered the glass on a copy machine, he shoved a metal cart into the doors of the operating suite so hard that it damaged one of them, he threw jelly beans down the hallway in the surgical suite, he “flung a medical chart to the ground” when a nurse asked him for written authorization to proceed with surgery, and he “verbally abused a nurse manager” by raising his voice, using profanity, and calling her a liar. According to the report, Dr. Leal's “violent and unprofessional actions” on that occasion “caused various members of the nursing and technical staff to announce [that] they were fearful of working with him in the future.”

The Hospital filed its report of the adverse action taken against Dr. Leal with the Secretary of the Department of Health & Human Services, as it felt compelled to do under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. The Secretary included the report in the National Practitioner Data Bank, which was set up under the Act “to collect and release certain information relating to the professional competence and conduct of physicians, dentists and other health care practitioners,” 45 C.F.R. § 60.1 (2010).

Dr. Leal was unhappy enough about the suspension, and he certainly did not want a report of it in the National Practitioner Data Bank where other hospitals would have access to it. See 42 U.S.C. § 11135(a). He sought the Secretary's review of the report, arguing that it was not factually accurate, and he asked that the report be removed from the Data Bank because the Hospital's action against him was not of the type that should be reported. The Secretary rejected Dr. Leal's assertion that the report was not factually accurate. Relying on documents submitted by Dr. Leal as part of his request for Secretarial review, the Secretary concluded that the report accurately described the Hospital's action and “reasons for action as stated in the [Hospital's] decision documents.” The Secretary also refused Dr. Leal's demand to remove the report, explaining that “[t]here is no basis on which to conclude that the report should not have been filed in the [Data Bank].” He did allow Dr. Leal to file a response, a copy of which would be given to anyone who obtained the report itself from the Data Bank. Not happy with that outcome, Dr. Leal filed an action under the Administrative Procedure Act seeking a court order requiring the Secretary to remove the report from the Data Bank. The district court entered a judgment denying relief, and this is Dr. Leal's appeal.

I.

“In APA actions, we review agency determinations under the ‘arbitrary and capricious' standard, which ‘provides the reviewing court with very limited discretion to reverse an agency decision.’ ” Warshauer v. Solis, 577 F.3d 1330, 1335 (11th Cir.2009) (quoting City of Oxford v. FAA, 428 F.3d 1346, 1351 (11th Cir.2005)). “The court's role is to ensure that the agency came to a rational conclusion, not to conduct its own investigation and substitute its own judgment for the administrative agency's decision.” Sierra Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir.2008) (quotation marks omitted); see also Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th Cir.2009) (explaining that “[t]he arbitrary and capricious standard is exceedingly deferential” and that this Court is “not authorized to substitute [its] judgment for the agency's as long as [the agency's] conclusions are rational” (quotation marks and citations omitted)).

II.

In the Health Care Quality Improvement Act, Congress directed the Secretary of the Department of Health & Human Services to promulgate regulations establishing “procedures in the case of disputed accuracy of the information” in the National Practitioner Data Bank. 42 U.S.C. § 11136(2). Under those regulations, a physician who disputes the accuracy of a report can seek Secretarial review, see 45 C.F.R. § 60.16(c)(2), which is limited to having the report reviewed “for accuracy of factual information and to ensure that the information was required to be reported.” U.S. Dep't of Health & Human Servs., National Practitioner Data Bank Guidebook F-3 (2001), http:// www. npdb- hipdb. hrsa. gov/ pubs/ gb/ NPDB_ Guidebook. pdf (“Guidebook”); see also Christensen v. Harris Cnty., 529 U.S. 576, 587, 120 S.Ct. 1655, 1662-63, 146 L.Ed.2d 621 (2000) (explaining that interpretations contained in enforcement guidelines get Skidmore deference).

Under the regulations, when a physician seeks Secretarial review of a report “the Secretary ... review[s] the written information submitted by both parties.” 45 C.F.R. § 60.16(c)(2); see also Guidebook, at F-3 (explaining that a physician challenging a report's factual accuracy must “[s]ubmit documentation substantiating that the reporting entity's information is inaccurate”). And that happened in this case. To show that the report was not factually accurate, Dr. Leal submitted his own affidavits in which he gave his version of the events that led the Hospital to suspend his clinical privileges. According to those affidavits, he accidentally broke a telephone when he tripped on its long cord; he closed the lid of a copy machine with “some force” and the glass cracked; he moved a metal cart that was blocking the doors of the operating suite; he ate jelly beans, some of which may have fallen on the floor when he tried to throw away flavors that he did not like; and when he was handed a medical chart by a nurse some of the chart's loose papers fell to the floor. In other words, this urological surgeon, who earns his living wielding a razor-sharp scalpel on some of the most delicate parts of the body, does not have a bad temper-he is just clumsy. Dr. Leal did admit in his affidavits, however, that he had on that occasion spoken “sternly” to a nurse who incorrectly told him that his patient was not cleared for surgery. Dr. Leal also submitted to the Secretary letters from the Hospital's administrators to him formally stating that “in the best interests of patient care” his clinical privileges were suspended due to his “violent, threatening and physically destructive and damaging behavior.” Based on that documentation, the Secretary determined that the Hospital's report was factually accurate in the relevant sense.

Dr. Leal challenges the Secretary's finding. It is his position that a report is factually accurate only if the administrative record includes statements from eyewitnesses that substantiate the information in a hospital's report about a doctor's misconduct. Without that requirement, he contends that a hospital could unfairly “blacklist” a physician by filing a report in the Data Bank based on conduct that never occurred. Because the Hospital did not submit statements from eyewitnesses to back up what it said about him, Dr. Leal argues that it was arbitrary and capricious for the Secretary to find that the report was accurate.

Dr. Leal's position misunderstands the purpose of the Data Bank and the scope of the Secretary's review. Congress enacted the Health Care Quality Improvement Act, which led to the creation of the Data Bank, after finding that there was “a national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance.” 42 U.S.C. § 11101. The Data Bank prevents a physician who applies to become a member of a hospital's medical staff or for clinical privileges from being able to hide disciplinary actions that have been taken against him. See id. § 11135(a)(1) (requiring a hospital to request information from the Data Bank about a physician when the physician applies to be on the medical staff or for clinical privileges). Information in the Data Bank is intended “only to alert ... health care entities that there may be a problem with a particular practitioner's professional competence or conduct” because the practitioner has been the subject of a disciplinary action. Guidebook, at A-3; see also id. at E-1 (explaining that the “principal purpose [of the Data Bank] is to facilitate a comprehensive review of professional credentials” (emphasis added)); id. at A-3 (noting that the Data Bank “provides another resource to assist...