Breda v. United States
| Decision Date | 29 March 2023 |
| Docket Number | Civil Action 20-3308 (RDM) |
| Parties | JOHN A. BREDA, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Dr. John Breda challenges the decision of the Secretary of Health and Human Services (“Secretary”) to maintain a report on file with the National Practitioner Data Bank (“NPDB”) regarding his loss of clinical privileges at the Providence Veterans Administration Medical Center (the “Hospital”), where he previously worked. Dkt. 1 (Compl.).[1] The matter is now before the Court on cross-motions for summary judgment. Dkt. 15; Dkt. 17. Because Breda has failed to identify a convincing basis for setting aside Defendants' decision, the Court will DENY his motion for summary judgment, Dkt 15, and will GRANT Defendants' crossmotion for summary judgment, Dkt. 17.
Congress enacted the Health Care Quality Improvement Act in 1986 to address “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(2). Among other things, the Act requires “health care entit[ies]” to report to the Secretary (through the relevant Board of Medical Examiners) certain adverse events related to the clinical privileges of their physicians. Id. §§ 11133(a)-(b), 11134. A health care entity must file a report when it “takes a professional review action that adversely affects the clinical privileges of a physician for a period longer than 30 days.” Id. § 11133(a)(1)(A). It must also do so when it “accepts the surrender of clinical privileges of a physician” while that physician “is under an investigation by the entity relating to possible incompetence or improper professional conduct” or if the physician surrenders her privileges “in return for” the entity “not conducting such an investigation or proceeding.” Id. § 11133(a)(1)(B). The Department of Health and Human Services (“HHS”) publishes these adverse-action reports, along with any response provided by the physician, in the NPDB. 45 C.F.R. §§ 60.1, 60.2.
The NPDB serves an important, patient-protective purpose. Whenever a physician applies to join a hospital's staff or to receive clinical privileges there, the hospital must query the NPDB regarding the physician. 42 U.S.C. § 11135(a)(1). Hospitals must also check the NPDB every two years for any new adverse-action reports concerning the physicians they employ or to whom they grant clinical privileges. Id. § 11135(a)(2). A hospital that shirks these obligations is charged with knowledge of any adverse-action reports respecting their physicians in malpractice litigation. Id. § 11135(b). The goal of this system is to prevent physicians from “being able to hide disciplinary actions that have been taken against [them].” Leal v. Sec'y of U.S. Dep't of Health and Hum. Servs., 620 F.3d 1280, 1283 (11th Cir. 2010).
For obvious reasons, physicians are not keen on appearing in the NPDB. Recognizing the professional implications of being the subject of an adverse-action report, Congress directed the Secretary to provide procedures for physicians to challenge allegedly inaccurate reports, which the Secretary has done. 42 U.S.C. § 11136(2); 45 C.F.R. § 60.21. But this review is limited: the Secretary does not adjudicate challenges to the “hospital's adverse action”-i.e. the hospital's decision to restrict the physician's clinical privileges or accept the physician's surrender of them. Leal, 620 F.3d at 1283. Nor does the Secretary make factual findings regarding whether the “incidents listed in the report”-i.e. the physician's deficient conduct- “actually occurred.” Id. at 1284. In other words, the Secretary “will not consider the merits or appropriateness of the action or the due process that the subject received.” 45 C.F.R. § 60.21(c)(1). Instead, he determines only whether (1) a report is based on an adverse action that is in fact reportable under the Act and (2) whether the report has accurately described such adverse action. Id. § 60.21(c).
Breda began working at the Hospital in 2010. Dkt. 26-4 at 78 (J.A. 681). After several co-workers complained about his clinical performance and conduct, he took a voluntary leave of absence in June 2014. Dkt. 26-2 at 8 (J.A. 7); Dkt. 26-3 at 344-49 (J.A. 465-70). Several days after Breda's leave began, his supervisor, Dr. Wilfredo Curioso, sent him a letter with the subject line “Fact Finding.” Dkt. 26-4 at 45 (J.A. 577). Curioso expressed “concerns” about Breda's performance and conduct, including his “writing prescriptions for the wrong patients, diverting an ambulance for a laceration injury[,] consenting the wrong patient for blood transfusion,” and delaying “seeing patients” complaining of “chest pain.” Id. Curioso said that he would be “looking into issues more carefully” and reviewing them to “determine appropriate action.” Id. He also explained that he would interview the staff with whom Breda had worked, review the medical charts from Breda's cases over the past year, and supervise all of Breda's emergency room shifts. Id.
As part of this inquiry, Breda met in November 2014 with Curioso, Dr. Sharon Rounds, the Chief of the Hospital's Medical Service, and representatives from the Hospital's human resources department. Dkt. 26-3 at 376 (J.A. 497); Dkt. 26-4 at 47, 79 (J.A. 579, 682). When requesting and scheduling this meeting, both representatives from human resources and Rounds referred to it as part of an ongoing “fact finding” of which Breda was the subject. Dkt. 26-3 at 376 (J.A. 497); Dkt. 26-4 at 47 (J.A. 579). At the meeting, Curioso and Rounds questioned Breda about various cases and sought explanations for the clinical decisions he had made. Dkt. 26-3 at 352-61 (J.A. 473-82). This exercise apparently went poorly, because Breda called human resources the next day and suggested that he might resign his position. Dkt. 26-4 at 8990 (J.A. 692-93). In this same conversation, he asked for the assistance of human resources in finding a position at another institution, and notes from the call indicate that human resources agreed to provide Breda with the contact information of other VA hospitals in the area. Id. at 90 (J.A. 693).[2]
At Breda's request, Curioso and Rounds met with him again in December. Dkt. 26-4 at 52-53 (J.A. 584-85); Dkt. 26-3 at 350-51 (J.A. 471-72). This time Rounds suggested that Breda consider resigning, and Breda responded that he was planning to do so. Dkt. 26-3 at 35051 (J.A. 471-72); Dkt. 26-4 at 38 (J.A. 570) (Rounds Dep.). Human resources informed Breda that his record would reflect his resignation and that the Hospital's credentialing department could answer any questions he had related to his clinical privileges. Dkt. 26-3 at 351 (J.A. 472).
Breda's resignation was not immediately forthcoming, so in January 2015 Rounds recommended to the Hospital Director, Sharon MacKenzie, that the Hospital terminate Breda. Dkt. 26-3 at 341-43 (J.A. 462-64). Rounds detailed “multiple, documented, not otherwise explained deficiencies” with Breda's clinical and professional competencies that he had failed adequately to address at their meetings. Id. at 341-43 (J.A. 462-64). She based her recommendation on “records from 2010, 2011, and 2012 of complaints and verbal and written counseling of Dr. Breda . . . [,] concerns brought forward by Emergency Department nurses in 2014, the medical record reviews done by Dr. Curioso on each incident, and the verbal responses of Dr. Breda to each concern that [was] expressed during [the November] meeting.” Id. at 341 (J.A. 462). Rounds also detailed specific incidents involving each of five “core [physician] competencies,” including “Patient Care,” “Medical Knowledge,” “Practice Based Learning and Improvement,” “Systems Based Practice,” and “Professionalism.” Id.; see also id. at 342-43 (J.A. 463-64) (listing specific incidents).
MacKenzie concurred with Rounds' recommendation, and on February 3, 2015 she wrote Breda to tell him that his appointment would be terminated effective February 13. Dkt. 26-3 at 338-39 (J.A. 459-60). In a paragraph titled “IMPACT OF DECISION REGARDING CLINICAL PRIVILEGES,” the letter explained that, if an initial determination was made that “the reasons for [Breda's] termination and subsequent revocation of privileges” were “substandard care, professional misconduct or professional incompetence,” he would receive a hearing and appeal regarding that determination. Id. at 338 (J.A. 459). And if the Hospital ultimately concluded that Breda's privileges were revoked for the above-listed reasons, it would file an NPDB report. Id.
A separate heading, “IMPACT OF VOLUNTARY SURRENDER OF PRIVILEGES,” preceded the following paragraph:
Should you surrender or voluntarily accept a restriction of your clinical privileges, or resign or retire from your medical staff position with the Department of Veterans Affairs prior to the effective date of your termination, your fair hearing and appeal rights regarding privileges will be limited to a hearing on whether you took such action while under investigation for professional incompetence, professional misconduct or substandard care.
Id. at 339 (J.A. 460) (emphasis added).
Notwithstanding his impending termination, Breda submitted a letter of resignation on February 7, 2015. Id. at 333 (J.A 454). Although Breda (incorrectly) dated this letter February 1, 2015 and requested that his resignation be backdated to December 16, 2014, he was informed that his resignation would be effective on February 7-the day that the Hospital...
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