District of Columbia v. Simpkins, 96-CV-250.

• Decision Date: 12 November 1998
• Docket Number: No. 96-CV-250.,96-CV-250.
• Citation: 720 A.2d 894
• Parties: DISTRICT OF COLUMBIA, Donna Wilson, Esquire, and Bernard Anderson, M.D., Appellants, v. Cuthbert O. SIMPKINS, M.D., Appellee.
• Court: D.C. Court of Appeals

720 A.2d 894

DISTRICT OF COLUMBIA, Donna Wilson, Esquire, and Bernard Anderson, M.D., Appellants, v. Cuthbert O. SIMPKINS, M.D., Appellee.

No. 96-CV-250.

District of Columbia Court of Appeals.

Argued February 18, 1998.

Decided November 12, 1998.

Justin Draycott, Assistant Corporation Counsel, with whom Jo Anne Robinson, Interim Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellants.

Barry Coburn, Washington, DC, for appellee.

Before WAGNER, Chief Judge, and TERRY, Associate Judge, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge:

This is an interlocutory appeal¹ by the District of Columbia, Bernard Anderson, M.D., and Donna Wilson, Esquire, from a trial court judgment declining to dismiss defamation claims brought against them by appellee, Dr. Simpkins, a former physician at the District of Columbia General Hospital ("the Hospital").²

The proceeding revolves around a charge by Dr. Simpkins that Donna Wilson, while General Counsel for the Hospital, defamed him by improperly submitting a report to the National Practitioner Data Bank ("the Data Bank") asserting that Dr. Simpkins had resigned from the Hospital while his surgical capabilities were under review. Secondly, Dr. Simpkins charged defamation by Dr. Anderson (then Chief of Surgery), based on comments made in memoranda to other Hospital officials concerning Dr. Simpkins' clinical competence. The information contained in Dr. Anderson's memoranda had provided the basis for the report submitted by Donna Wilson to the National Practitioner Data Bank.

I.

During 1991 and 1992, appellant Dr. Anderson served as Chief of Surgery at the Hospital. In that capacity, Dr. Anderson had supervisory authority over appellee Dr. Simpkins, who was an attending physician. In a memorandum dated March 28, 1991, Dr. Anderson wrote to Anthony Jean-Jacques, M.D., who was Dr. Simpkins' Section Chief within the Department of Surgery, indicating that he had concerns regarding Dr. Simpkins' clinical judgment and competence. Dr. Anderson concluded the memorandum by requesting that he, along with Dr. Jean-Jacques and Dr. Simpkins, meet to formally discuss his concerns. He also requested that Dr. Jean-Jacques, as Section Chief, review Dr. Simpkins' work to determine whether his clinical privileges needed an adjustment.

In response to Dr. Anderson's memorandum, Dr. Jean-Jacques recommended in a letter dated May 30, 1991, that Dr. Simpkins' cases be monitored for six months and that Dr. Simpkins be encouraged to consult with his supervisors when he considered it necessary. The letter also advised that at the end of the six-month review period, further recommendations would follow. While the letter indicated that the recommendations were to take effect on June 17, 1991, Dr. Simpkins alleges that the recommendations were conditioned upon Dr. Anderson agreeing to them, and that there is no documentation evidencing such an agreement. On June 3, 1991, Dr. Simpkins submitted his resignation to the Hospital, citing substandard management and patient care as his reasons for leaving.³

On July 11, 1991, Donna Wilson, Esquire, then of the Hospital's Office of Legal Counsel and Risk Management, informed Dr. Simpkins that she would be reporting his resignation to the Data Bank pursuant to the mandates of the Health Care Quality Improvement Act of 1986 ("HCQI Act").⁴ In a letter to Ms. Wilson dated July 22, 1991, counsel for Dr. Simpkins questioned the basis for the assertion that the law required Ms. Wilson to report Dr. Simpkins' resignation to the Data Bank. The letter also requested, among other things, that Dr. Simpkins be permitted to review any proposed report to the Data Bank prior to its submission.

On September 3, 1991, Dr. Simpkins filed a grievance with the Chairman and the Medical Director of the Hospital objecting to Ms. Wilson's proposed submission to the Data Bank. He argued that the purported review and recommendations made by Dr. Jean-Jacques did not constitute "an investigation" by the Hospital within the meaning of the HCQI Act. He further argued that his voluntary resignation did not constitute "a surrender of clinical privileges of a physician" under the statute. On October 4, 1991, the Hospital reported Dr. Simpkins' resignation to the Data Bank, and the report referred to comments made by Dr. Anderson in memoranda to Dr. Jean-Jacques concerning Dr. Simpkins' competence.⁵

II.

Appellants contend that the report submitted to the Data Bank regarding Dr. Simpkins' resignation was absolutely privileged. Specifically, Ms. Wilson asserts that because she exercised a mandatory duty pursuant to the HCQI Act, absolute immunity shields her conduct. Dr. Anderson, on the other hand, argues that his immunity derives from discretionary actions taken within the outer perimeter of his official duties.

This court has recognized that a District of Columbia government official is entitled to absolute immunity when performing an act required by law. See District of Columbia v. Thompson, 570 A.2d 277, 293 (D.C. 1990);⁶ see also Goggins v. Hoddes, 265 A.2d 302, 303 (D.C.1970) (absolute privilege for report required by law to be filed with unemployment compensation board). We have also held that absolute immunity shields an official's conduct when such conduct was "(1)... within the `outer perimeter' of his official duties, and (2) the particular government function at issue was `discretionary' as opposed to `ministerial.'" Moss, supra note 6, 580 A.2d at 1020 (citing Thompson, supra, 570 A.2d at 294 & n. 14). Accordingly, whenever a government official's conduct meets the test for absolute privilege based on the performance of an official mandatory or discretionary duty, no claim for defamation may be premised on statements published in the exercise of that duty.

A. Ms. Wilson's Mandatory Duty

In determining whether the law required Ms. Wilson to report Dr. Simpkins' resignation to the Data Bank, we turn to 42 U.S.C. § 11133(a) of the HCQI Act. Under this provision, a health care entity which

(B) accepts the surrender of clinical privileges of a physician —

(i) while the physician is under an investigation by the entity relating to possible incompetence or improper professional conduct, or

(ii) in return for not conducting such an investigation or proceeding; ...

. . . .

shall report to the Board of Medical Examiners... information described in paragraph (3).⁷

42 U.S.C. § 11133(a). Failure to follow the directives of this section subjects the health care entity to sanctions. See 42 U.S.C. § 11133(c).

Dr. Simpkins argues that the HCQI Act does not afford Ms. Wilson absolute immunity principally because no report was required under the Act as he resigned his employment from the Hospital, as contrasted with surrendering his privileges, and he was not "under investigation" when he left his employment. He further asserts that, in any case, the Hospital was required to submit the report to the Board of Medical Examiners, not the Data Bank. Ms. Wilson, on the other hand, contends that Dr. Simpkins' resignation, which amounted to a surrender of clinical privileges as contemplated by the statute, occurred while he was under investigation by the Hospital for possible incompetence and improper professional conduct. Thus, she asserts, this set of circumstances fell within the reporting requirements of the HCQI Act.

The present record does not enable this court to determine whether Dr. Simpkins' resignation was tantamount to a surrender of privileges, nor are we able to discern whether Dr. Simpkins was "under investigation," as contemplated by the HCQI Act, at the time of his resignation. Further, even if Dr. Simpkins was under investigation, as matters stand, we cannot determine from the record the point at which the correspondence between Dr. Anderson and Dr. Jean-Jacques became a formal investigation of Dr. Simpkins. This determination is critical, particularly since there is a dispute as to whether Dr. Anderson was required to give his approval of Dr. Jean-Jacques' recommendations regarding review of Dr. Simpkins' alleged improprieties. Therefore, we must remand this case to the trial judge for further proceedings.

B. Dr. Anderson's Discretionary Duty

To determine whether Dr. Anderson's connection to the report submitted to the Data Bank should be afforded absolute immunity, we analyze his actions in the context of our two-prong "discretionary duty" test. Specifically, we must determine whether Dr. Anderson's conduct (1) was within the outer perimeter of his official duties, and (2) was discretionary as opposed to ministerial. Moss, supra note 6, 580 A.2d at 1020 (citing Thompson, supra, 570 A.2d at 294 & n. 14).

In Moss, this court noted that "[d]etermining whether an act fell `within the outer perimeter of the [official's] line of duty,' Barr v. Matteo, 360 U.S. 564, 575, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), calls for a relatively straight-forward identification of the act giving rise to the suit and an analysis of the official's proper functions and duties." Moss, supra note 6, 580 A.2d at 1020.

Distinguishing between discretionary and ministerial functions, however, involves a more discerning inquiry which seeks to determine whether the government action at issue allows a sufficiently significant application of discretion "to justify official immunity, in order to assure `fearless, vigorous, and effective' decisionmaking." Id. (quoting Thompson, supra, 570 A.2d at 297). Each case requires the court, as a matter of law, to balance the contending interests and determine if society's concern requires subordinating the vindication of private injuries otherwise compensable at law to the particular government conduct at issue in order to avoid the disruptive effects of civil litigation. Id. 580 A.2d at 1020-21.

We employ four policy factors to aid in our task of distinguishing discretionary...