Brown v. Medical College of Ohio

• Decision Date: 28 December 1999
• Docket Number: No. 3:99 CV 7763.,3:99 CV 7763.
• Citation: 79 F.Supp.2d 840
• Parties: Jeffrey A. BROWN, M.D., Plaintiff, v. MEDICAL COLLEGE OF OHIO, et al., Defendant.
• Court: U.S. District Court — Northern District of Ohio

79 F.Supp.2d 840

Jeffrey A. BROWN, M.D., Plaintiff, v. MEDICAL COLLEGE OF OHIO, et al., Defendant.

No. 3:99 CV 7763.

United States District Court, N.D. Ohio, Western Division.

December 28, 1999.

COPYRIGHT MATERIAL OMITTED

Charles A. DeMonaco, Dickie, McCamey & Chilcote, Pittsburgh, PA, Gerardo R. Rollison, Cooper, Walinski & Cramer, Toledo, OH, for Jeffrey A Brown, M.D., plaintiff.

John M. Carey, Watkins, Bates & Carey, Toledo, OH, Gary O. Sommer, Watkins, Bates & Carey, Toledo, OH, for Medical College of Ohio, defendant.

MEMORANDUM OPINION

KATZ, District Judge.

This matter is before the Court on Plaintiff's motion for a temporary restraining order (Doc. No. 2), and on Defendant's motion to dismiss (Doc. No. 5). For the following reasons, Defendant's motion to dismiss will be granted.

BACKGROUND

Plaintiff Jeffrey Brown, M.D., brings this action to enforce certain provisions of the Health Care Quality Improvement Act of 1986, 42 U.S.C. § 11101 et seq.

Defendant Medical College of Ohio is a state-operated medical school located in Toledo, Ohio. Medical College of Ohio operates Defendants Medical College of Ohio Hospital, MCO/Mercy Rehabilitation Hospital, and Lenore W. and Marvin F. Kobacker Center. For convenience, the Court will refer to the presently named defendants collectively as MCO. Proposed additional Defendants Jagadish Jhunjhunwalla and Frank McCullough are, respectively, the chief of staff and CEO of MCO.

Prior to June 22, 1999, Plaintiff was the head of neurosurgery at MCO. Early in 1999 Plaintiff was accused of certain improprieties in connection with brain and spine surgeries that were to be performed by him. On June 22, 1999, Plaintiff took a six-month unpaid leave of absence from MCO, with the understanding that the leave of absence would automatically be converted into a resignation from both his faculty appointment at the Medical College of Ohio and his medical staff membership at MCO Hospitals, effective January 1, 2000. Brown requested, and received, the six-month leave of absence in order to search for a new job while he was, technically, still employed. On October 26, 1999, MCO instituted a formal investigation of Brown's alleged professional improprieties. That investigation remains pending.

At dispute in this case is whether Plaintiff's resignation, effective January 1, 2000, triggers a reporting requirement under the Health Care Quality Improvement Act of 1986 ("HCQIA"). One purpose of the HCQIA is to restrict the ability of incompetent physicians to move from state to state without disclosure of their previous incompetent performance. 42 U.S.C. § 11101(2). Among other things, the Act requires hospitals to report any professional review actions that adversely affect a physician's clinical provisions for longer than thirty days, the physician's name, the reason for the action, and other relevant information to the National Practitioner Data Bank ("NPDB").¹ 42 U.S.C. § 11133(a)(1)(A) & (3); 45 C.F.R. pt. 60. That information is then made available to other hospitals upon request if the physician applies for clinical privileges or appointment to a medical staff. 42 U.S.C. § 11137(a). In order to prevent physicians from circumventing the reporting requirement by resigning in anticipation of an adverse professional review action, the Act also requires any hospital that accepts the surrender of a physician's clinical privileges "while the physician is under an investigation ... relating to ... improper conduct," or in return for the hospital not conducting such an investigation, to report that surrender of privileges. 42 U.S.C. § 11133(a)(1)(B).

The HCQIA contains certain due process protections for physicians who are accused of professional misconduct, which procedures must be followed before a report of an adverse professional review action is made. 42 U.S.C. § 11112(b). A physician who voluntarily surrenders privileges during an investigation of professional misconduct or in return for the hospital not conducting an investigation is deemed to have waived those protections.

MCO has taken the position that it must report Plaintiff's resignation to the NPDB on January 1, 2000 because under the Act it is a resignation "while the physician is under an investigation ... relating to ... improper conduct."

Plaintiff argues that his resignation does not trigger the reporting requirement. He points out that although the effective date of his resignation occurs while he is under investigation, his last affirmative act to effectuate the resignation occurred four months before the formal investigation began, and at a time when no formal investigation was threatened. Plaintiff argues further that the public policy underlying the reporting requirement is not implicated in this case, because he is not trying to avoid an investigation that could lead to an adverse professional review; it is not disputed that such an investigation is underway.

Plaintiff brought this action seeking an injunction prohibiting MCO from reporting his resignation to the NPDB until the completion of the professional review action process.

MCO has moved to dismiss Plaintiff's complaint for lack of subject matter jurisdiction on two separate grounds. First, it argues that it is immune from suit under the Eleventh Amendment, since it is an arm of the state of Ohio. Second, it argues that the HCQIA does not give physicians a private right of action to challenge an adverse report; Plaintiff's sole remedy is the administrative procedure outlined in 45 C.F.R. § 60.14.

The parties have briefed both the subject matter jurisdiction issue and the merits of Plaintiff's claim. Plaintiff has submitted, although not filed, a proposed amended complaint in which he replaces the MCO Defendants with Doctors Jhunjhunwalla and McCullough, and adds a claim under 42 U.S.C. § 1983. For the sake of efficiency, the Court will address the claims for relief asserted both in the original complaint and in Plaintiff's proposed amended complaint.

DISCUSSION

A. Motions to Dismiss Generally

In deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b), the function of the Court is to test the legal sufficiency of the complaint. In scrutinizing the complaint, the Court is required to accept the allegations stated in the complaint as true, Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984), while viewing the complaint in a light most favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). The Court is without authority to dismiss the claims unless it can be demonstrated beyond a doubt that the plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Westlake, supra, at 858. See generally 2 JAMES W. MOORE, MOORE'S FEDERAL PRACTICE, § 12.34[1] (3d ed.1997).

B. Eleventh Amendment Immunity

The first issue the Court must address pertaining to Plaintiff's original complaint is whether the Court has jurisdiction to hear a physician's claim under the HCQIA when that claim is brought against a state-owned hospital. This appears to be a question of first impression; the Court is unaware of any reported case in which a physician has attempted to bring a claim under the HCQIA against a state-owned hospital.

The Eleventh Amendment to the United States Constitution provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Although the text of the amendment expressly prohibits federal courts from hearing only state-law claims brought by citizens of other states, the Supreme Court has long held that the Eleventh Amendment bars all suits brought by individuals against unconsenting states. Hans v. Louisiana, 134 U.S. 1, 14-15, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

The parties do not dispute that the Medical College of Ohio is an arm of the state of Ohio, and thus enjoys Eleventh Amendment immunity. Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 307 (6th Cir.1984). Since the College is an arm of the state of Ohio, its affiliated hospitals are also entitled to immunity from suit in federal court. Thomson v. Harmony, 65 F.3d 1314, 1319 (6th Cir.1995); accord Watson v. University of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir.1996).

Despite this general immunity from suit, Congress may, however, abrogate the states' Eleventh Amendment immunity under certain limited circumstances. In order to determine whether Congress has abrogated the states' immunity, the Court asks two questions: "first, whether Congress has unequivocally expressed its intent to abrogate the immunity; and second, whether Congress has acted pursuant to a valid exercise of power." Seminole Tribe v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996) (internal quotes and citations omitted). Nothing in the text of the HCQIA indicates a Congressional intent to abrogate the states' Eleventh Amendment immunity from suits by individuals. Since Congress did not express an intent to abrogate state sovereign immunity in the Act, the Court's inquiry ends.

Plaintiff concedes that the Medical College of Ohio and its affiliated hospitals are immune under the Eleventh Amendment from suit brought by a private person to enforce the provisions of the HCQIA. Therefore, this suit must be dismissed as to them.

C. Private Right of Action for Physicians to Enforce HCQIA

Plaintiff seeks to amend his complaint to bring suit against Dr. Jagadish Jhunjhunwalla, MCO's Chief of Staff, and Dr. Frank McCullough, MCO's President and CEO, in their official capacities, seeking an injunction prohibiting them from reporting Plaintiff's resignation to the...