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

• Decision Date: 10 September 2020
• Docket Number: Civil Action No. 12-01229 (TFH)
• Citation: 498 F.Supp.3d 59
• Parties: John DOE, et al., Plaintiffs, v. Judith ROGERS, M.H.A., et al., Defendants.
• Court: U.S. District Court — District of Columbia

498 F.Supp.3d 59

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 September 10, 2020

Filed October 30, 2020

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

MEMORANDUM OPINION

Thomas F. Hogan, Senior United States District Judge

The Health Care Quality Improvement Act requires that hospitals file a report with the Department of Health and Human Services "whenever a physician voluntarily resigns while under investigation for reasons related to his professional competence or conduct." Long v. HHS , 422 F. Supp. 3d 143, 145–46 (D.D.C. 2019) ; 42 U.S.C. §§ 11101 - 152. The report is then posted to the National Practitioner Data Bank, "an online database, which ... alert[s] hospitals and other would-be employers of potential issues with the physician's credentials." Long , 422 F. Supp. 3d at 145–46.

This lawsuit concerns one such report about the plaintiff, Dr. John Doe, a surgeon formerly employed by Peconic Bay Medical Center (the "Hospital"). The Hospital submitted the report (the "Adverse Action Report") to the National Practitioner Data Bank (the "NPDB" or the "Data Bank") in 2009 after Dr. Doe resigned while the Hospital investigated an appendectomy

that he performed. Dr. Doe and his limited liability company, John Doe PLLC ("the plaintiffs"), sued the Secretary of the Department of Health and Human Services ("the Secretary", "HHS", or "the Agency"), the Data Bank, and three officials who administer the Data Bank over their maintenance and continued distribution of the Adverse Action Report.

The Court described the facts of this case in detail in Doe v. Rogers , 139 F. Supp. 3d 120 (D.D.C. 2015) (" Doe "), and includes relevant excepts below:

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)] ... During the surgery, Dr. Doe removed what he characterized as an "inflamed band" AR 0101 [ECF No. 19–3 (Sealed)] ... 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)] ... There is no dispute that Dr. Doe failed to recognize the anatomical identity of the "inflamed band" before he intentionally cut and removed it. Pls.’ Mem. In Opp'n to Defs.’ Mot. to Dismiss 3–4 [ECF No. 45 (Sealed)] ....

[The following Monday,] the Vice President of Medical Affairs told Dr. Doe that the Hospital was required to report the surgical incident to the New York State Department of Health and that such a report was necessary whenever an organ other than the organ operated is injured. AR 0161 [ECF No. 19–4 (Sealed)]; AR 0203 [ECF No, 19–5 (Sealed)]. The hospital ... filed a report that day via the New York Patient Occurrence Reporting and Tracking System ("NYPORTS") and stated in the report that "[t]he physician has been placed on suspension pending completion of the investigation and the family notified." AR 0108 [ECF No. 19–3 (Sealed)]....

Later that same day, Dr. Doe executed a letter voluntarily suspending his surgical privileges and stating "I will not operate at Peconic Bay Medical Center for the next two weeks effective October 5, 2009 through October 19, 2009, or until mutually agreed upon. I will however, finish the follow-up care on patients that I am currently involved with on the clinical floors without performing any surgery." AR 0110 [ECF No. 19–3 (Sealed)]. Dr. Doe claims that this letter was prompted by his discovery "that he was going to have to return to the University of Tennessee to complete another year of cardiothoracic surgery fellowship in preparation for his Board exam." First Am. Compl. ¶ 53.

Two days later, on October 7, 2009, Dr. Doe tendered a short letter of resignation that stated "[e]ffective October 16, 2009, I resign from Peconic Bay Medical Center." AR 0113 [ECF No. 19–3 (Sealed)].

On December 3, 2009, about two months after Dr. Doe resigned, the Hospital submitted an Adverse Action Report to the National Practitioner Data Bank. AR 0132 [ECF No. 19–3 (Sealed)]. The Adverse Action Report stated:

In June 2009, the physician commenced practice at the Hospital in thoracic and general surgery. On Friday, October 2, 2009, the physician performed a laparoscopic appendectomy on a 14–year–old female. In the course of performing the procedure, the physician inadvertently removed part of one of the patient's fallopian lubes. On or about Monday, October 5, 2009, the physician agreed to refrain from exercising his surgical privileges pending the Hospital's investigation of this matter. By letter dated October 7, 2009, the physician advised the Hospital that he resigned from the Hospital effective October 16, 2009. Accordingly, the Hospital took no further action regarding the physician's privileges or employment. However, the Hospital's quality assurance review of this matter indicates departures by the physician from standard of care with regard to the laparoscopic appendectomy that he performed on October 2, 2009.

AR 0002 [ECF No. 19–1 (Sealed)].

.... Upon discovering the report, Dr. Doe contacted the Hospital and requested that it retract the report because it was factually inaccurate. AR 0008 [ECF No. 19–1 (Sealed)]; AR 0013 [ECF No. 19–1 (Sealed)]. Dr. Doe also submitted a Subject Statement to the National Practitioner Data Bank and placed the Adverse Action Report in a disputed status "challenging both the factual accuracy of the report and whether the report was submitted in accordance with the [National Practitioner Data Bank's] reporting requirements." First Am. Compl. ¶ 89 [ECF No. 23]; see also AR 0018–27 [ECF No. 19–1 (Sealed)].

When the Hospital refused to revise or void the Adverse Action Report, Dr. Doe submitted a letter to the National Practitioner Data Bank requesting that the Secretary of the Department of Health and Human Services review and remove the report. First Am. Compl. ¶ 91 [ECF No. 23]; AR 0007–17 [ECF No. 19–1 (Sealed)]. On June 25, 2012, Judy Rodgers, Senior Advisor for the Division of Practitioner Data Banks at the Department of Health and Human Services, issued a Secretarial Review Decision denying Dr. Doe's request and stating that the Secretary found that "[t]here is no basis on which to conclude that the Report should not have been filed in the NPDB or that it is not accurate, complete, timely or relevant," AR 0268–73 [ECF No. 19–6 (Sealed)].

Doe , 139 F. Supp. 3d at 129-31.

One month later, the plaintiffs filed this lawsuit alleging that the defendants violated the Administrative Procedures Act ("APA"), sections 522a(g)(1)(A) and (C) of the Privacy Act, and the plaintiffs’ constitutional rights. Doe , 139 F. Supp. 3d at 132. After the parties filed dispositive motions (the "first round of briefing"), the Court granted the defendants’ motion for summary judgment on the APA claims except as to the narrow question of whether the statement in the Adverse Action Report that " ‘the Hospital's quality assurance review of this matter indicates departures by the physician from standard of care with regard to the laparoscopic appendectomy

that he performed on October 2, 2009’ " ("the Statement") was reportable to the Data Bank. Id. at 153 (quoting ECF No. 19-1 [SEALED]). The Court dismissed the plaintiffs’ constitutional claims and the § 552a(g)(1)(C) Privacy Act claim, but declined to dismiss the plaintiffs’ contention that the Secretary violated § 552a(g)(1)(A) of the Privacy Act because the Court remanded the reportability issue to the Agency. Id. at 167-68 ; 170.

The Agency has since issued its decision on remand, and concluded that the Statement is reportable. [ECF No. 86-1 (Sealed)]. That decision is the main subject of the motions now pending before the Court, which include the defendants’ renewed motion to dismiss or, in the alternative, motion for summary judgment [ECF No. 100], and the plaintiffs’ cross-motion for summary judgment and opposition to the defendants’ motion [ECF No. 103]. Also pending before the Court are three additional motions filed by the plaintiffs—two motions to supplement the record, [ECF Nos. 118 & 120], and a motion for reargument and for the Court's recusal, [ECF No. 127]. The defendants have opposed each motion. [ECF Nos. 119, 122 & 128].

I. Regulatory Background

Congress enacted the Health Care Quality Improvement Act (the "Act" or "HCQIA") to address the "increasing occurrence 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). The Act requires health care entities to report to HHS when inter alia , they "accept[ ] 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." Id. § 11133(a)(1)(B)(i); see also 45 C.F.R. § 60.12(a)(1)(ii)(A).

When filing reports, the Act requires that health care entities submit "(A) the name of the physician or practitioner involved, (B) a description of the acts or omissions or other reasons for the action or, if known, for the surrender, and (C) such other information respecting the circumstances of the action or surrender as the Secretary deems appropriate." 42 U.S.C. § 11133(a)(3). According to the legislative history, this section "does not necessarily require an extensive description of the acts or omissions or other reasons for the action or, if known, for the surrender. It does, however, require sufficient specificity to enable a knowledgeable observer to determine clearly the circumstances of the action or surrender." H.R. Rep. No. 99-903 at 15 (1986), ...