Doe v. Rogers, Civil Action No. 12–01229(TFH)

• Decision Date: 17 June 2015
• Docket Number: Civil Action No. 12–01229(TFH)
• Citation: 139 F.Supp.3d 120
• Parties: John DOE, et al., Plaintiffs, v. Judith Rogers, M.H.A., et al., Defendants.
• Court: U.S. District Court — District of Columbia

139 F.Supp.3d 120

John DOE, et al., Plaintiffs,

v.Judith Rogers, M.H.A., et al., Defendants.

Civil Action No. 12–01229(TFH)

United States District Court, District of Columbia.

Signed June 17, 2015

Filed October 9, 2015

Barry Coburn, Lloyd Liu, Coburn & Greenbaum PLLL, Washington, DC, William Thomashower, Schwartz & Thomashower, LLP, New York, NY, for Plaintiffs.

Peter C. Pfaffenroth, U.S. Attorney's Office, Washington, DC, for Defendants.

MEMORANDUM OPINION

THOMAS F. HOGAN

, Senior District Judge

This lawsuit was commenced by Dr. John Doe and Dr. Doe's limited liability company ("the plaintiffs") to recover damages and secure declaratory and injunctive relief against the Secretary of the Department of Health and Human Services, the National Practitioner Data Bank, and three officials who administer the National Practitioner Data Bank (collectively "the defendants"). The plaintiffs allege that the defendants unlawfully accepted, maintained, and continue to release an inaccurate, fraudulent and untimely Adverse Action Report that was submitted to the National Practitioner Data Bank by Dr. Doe's prior employer, Peconic Bay Medical Center (the "Hospital" or "PBMC"). Pending before the Court are a Motion to Dismiss or, Alternatively, for Summary Judgment [ECF No. 26] that was filed by the defendants and a Cross–Motion for Summary Judgment [ECF No. 45 (Sealed) ] that was filed by the plaintiffs.

For the reasons that follow, the Court will grant in part and deny in part the defendants' Motion to Dismiss or, Alternatively, for Summary Judgment, and deny the plaintiffs' Cross–Motion for Summary Judgment. The Court will also remand to the Secretary for further proceedings consistent with this Opinion.

BACKGROUND AND PROCEDURAL POSTURE

I. The Health Care Quality Improvement Act

Nearly three decades ago, Congress enacted the Health Care Quality Improvement Act of 1986, 42 U.S.C. §§ 11101

–11152 (West 2014) (the "Act" or "HCQIA"), to address the nationwide problem of medical malpractice and the "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(1) -(2), Congress found that professional review conducted by peers could remedy the medical malpractice problem but incentives and protections to encourage effective professional peer review needed to be established. Id. § 11101(3) -(5). The Health Care Quality Improvement Act promotes effective professional peer review by prescribing mandatory review and reporting requirements for health care entities, id. §§ 11131, 11132, 11133, setting standards to govern a professional review action, id. § 11112, and, significantly, providing immunity from damages liability to professional review bodies and designated participants if the professional review action complies with certain standards enumerated in the statute, id. § 11111(a)(1).

Relevant to this case, the Health Care Quality Improvement Act compels "[e]ach health care entity which ... accepts the surrender of clinical privileges of a physician ... while the physician is under an investigation by the entity relating to possible incompetence or improper professional conduct" to report such action or surrender of clinical privileges to the Secretary of the Department of Health and Human Services.¹ Id. §§ 11133(a)(1)(B)(i) (quotation), 11134(b). The Health Care Quality Improvement Act also obligates hospitals to request reported information about a physician who seeks clinical privileges or applies to join a hospital's medical staff, id. § 11135(a), and establishes a presumption that a hospital knows information that has been reported about a physician regardless of whether the hospital actually obtains the information as required by the Act, id. § 11135(b). The Health Care Quality Improvement Act recognizes, however, that there might be disputes about the accuracy of reported in formation, so it directs the Secretary of the Department of Health and Human Services to issue regulations that provide procedures to dispute a report's accuracy. Id. § 11136(2).

II. The National Practitioner Databank

In accordance with the delegations contained in the Health Care Quality Improvement Act, the Secretary of the Department of Health and Human Services promulgated regulations that established the National Practitioner Data Bank. 45 C.F.R. § 60.1

. The National Practitioner Data Bank collects and releases information that the Health Care Quality Improvement Act requires health care entities to report regarding the "professional competence and conduct of physicians, dentists, and other health care practitioners." Id.

The Department of Health and Human Services also published an NPDB Guidebook to "inform the United States health care community about the NPDB and what is required to comply with the requirements established by Title IV of Public Law 99–660

, the Health Care Quality Improvement Act of 1986, as amended."² U.S. DEP'T OF HEALTH & HUMAN SERVS., HEALTH RESOURCES & SERVS. ADMIN., NPDB GUIDEBOOK A–1 (2001).³ The npdb Guidebook states that "[t]he establishment of the NPDB represents an important step by the U.S. Government to enhance professional review efforts by making certain information concerning medical malpractice payments and adverse actions available to eligible entities and individuals." Id. at A–3. As one federal appellate court explained:

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. 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. The Data Bank contains not only the hospital's side of the story but also the physician's response. What the requesting hospital does with the information it obtains from the Data Bank is entirely up to that hospital. It could completely discount the information, or it could back off from any professional relationship with the physician, or it could make further inquiries to determine what had actually happened.

Leal v. Secretary, U.S. Dep't of Health & Human Servs. , 620 F.3d 1280, 1283–84 (11th Cir.2010)

.

The review, reporting and disclosure regulations that apply to the National Practitioner Data Bank are codified at 45 C.F.R. §§ 60.1

–60.22 and "establish procedures to enable individuals or entities to obtain information from the NPDB or to dispute the accuracy of NPDB information." 45 C.F.R. § 60.2. The details of the procedures to dispute the accuracy of an Adverse Action Report are discussed infra at part B(5). With respect to the relevant requirement for reporting, the National Practitioner Data Bank regulations mirror the Health Care Quality Improvement Act by stating that hospitals must report to the National Practitioner Data Bank the "[a]cceptance of the surrender of clinical privileges or any restriction of such privileges by a physician ... [w]hile the physician ... is under investigation by the health care entity relating to possible incompetence or improper professional conduct...." 45 C.F.R. § 60.12(a)(1)(ii)

.

III. The Surgical Incident and Resulting Adverse Action Report

On Friday, October 2, 2009, Dr. Doe commenced a late-night emergency laparoscopic appendectomy

on a 14–year–old girl who had acute appendicitis. First Am. Compl. ¶¶ 48, 49; Administrative Record ("AR") 0153 [ECF No. 19–4 (Sealed) ]; Pls.' Statement of Undisputed Material Facts Pursuant to Local R. 7(h) ¶ 4 [ECF No. 45–2 (Sealed) ]. During the surgery, Dr. Doe removed what he characterized as an "inflamed band" but the anesthesiologist protested was the patient's Fallopian tube. AR 0101 [ECF No. 19–3 (Sealed) ] ("During the procedure it was noted by [the anesthesiologist] that [Dr. Doe] removed segment of ® Fallopian tube." (capitalization formatting omitted)); AR 0143 [ECF No. 19–3 (Sealed) ] (stating that the anesthesiologist "shouted loudly" at Dr. Doe); AR 0283 [ECF No. 32–1 (Sealed) ] (stating that "the error was immediately detected by the anesthesiologist during the procedure"). A subsequent pathology report confirmed that the "inflamed band" was part of the patient's right Fallopian tube. First Am. Compl. ¶ 51 [ECF No. 23]; AR 0142–0143 at ¶ 85 [ECF No. 19–3 (Sealed) ];⁴ AR 0181 [ECF No. 19–4 (Sealed) ]; AR 0185 [ECF No. 19–4 (Sealed) ]; AR 0219 [ECF No. 19–5 (Sealed) ]; Pls.' Statement of Undisputed Material Facts Pursuant to Local R. 7(h) ¶ 4 [ECF No. 45–2 (Sealed) ]. There is no dispute that Dr. Doe failed to recognize the anatomical identity of the "inflamed band" before he intentionally cut and removed it.⁵ Pls.' Mem. In Opp'n to Defs.' Mot. to Dismiss 3–4 [ECF No. 45 (Sealed) ] (stating that "[t]he surgery included the surgeon's considered medical judgment that it was necessary to remove an inflamed band, which was later conclusively identified as a damaged Fallopian tube ..."); AR 0010 [ECF No. 19–1 (Sealed) ] (asserting that the decision to cut and remove the "inflamed band" was an intentional exercise of his medical judgment); AR 0143 [ECF No. 19–3 (Sealed) ] ("As it turned out, the pathologist later identified this inflamed band as the right Fallopian tube."); AR 0158 [ECF No. 19–4 (Sealed) ] ("Pathological analysis of the inflamed band indicated that it was the right Fallopian tube."); AR 0169 [ECF No. 19–4 (Sealed) ] (stating that he cut "an inflamed band"); AR 0180 [ECF No. 19–4 (Sealed) ] (referring to the cut organ as an "adherence"); AR 0219 [ECF No. 19–5 (Sealed) ] (stating that the "band was later identified as a portion of the Fallopian tube"); Pls.' Statement of Undisputed Material Facts Pursuant to Local R. 7(h) ¶ 4 [ECF No. 45–2 (Sealed) ] (stating that an "inflamed band ... was later conclusively identified as a...