Hewitt v. Grabicki

• Decision Date: 23 October 1984
• Docket Number: No. C-80-480-JLQ.,C-80-480-JLQ.
• Citation: 596 F. Supp. 297
• Court: U.S. District Court — District of Washington
• Parties: Donald W. HEWITT, M.D., Plaintiff, v. Peter GRABICKI, M.D., et al., Defendants.

596 F. Supp. 297

Donald W. HEWITT, M.D., Plaintiff, v. Peter GRABICKI, M.D., et al., Defendants.

No. C-80-480-JLQ.

United States District Court, E.D. Washington.

October 23, 1984.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Lawrence C. Smith, Spokane, Wash., for plaintiff.

Carroll D. Gray, Asst. U.S. Atty., Spokane, Wash., for defendants.

MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

QUACKENBUSH, District Judge.

This matter came on regularly for hearing with oral argument in Spokane, Washington on Defendants' Motion To Dismiss. The Motion to Dismiss will be treated as a Motion for Summary Judgment due to the reference by plaintiff to various depositions and affidavits in his opposition to the Motion to Dismiss. Fed.R.Civ.P. 12(b)(6). Plaintiff was represented by Lawrence C. Smith; Assistant United States Attorney Carroll D. Gray appeared for defendants.

Plaintiff Dr. Hewitt was hired in December 1967 as a staff urologist at the Spokane Veteran's Administration Hospital and remained in that position until his alleged involuntary retirement on December 28, 1980. Plaintiff contends he was orally informed at his hiring that he would be allowed to independently request consultation assistance from private medical practitioners.

The bases of this action were the comments attached to plaintiff's Proficiency Reports for the years 1978 and 1979. Ct. Rec. 53 at Exhibits A and Q. Defendant Dr. Grabicki, Chief of Surgical Services at the Spokane facility, prepared the challenged Proficiency Reports which were reviewed by defendant Dr. Guilfoil,¹ Chief of Staff at the Spokane Veterans Administration Hospital. While defendants Guilfoil and Grabicki rated plaintiff's performance satisfactory in the 1978 Proficiency Report, defendant Guilfoil's comments on the 1979 report rated plaintiff's performance as unsatisfactory. Ct.Rec. 53 at Exhibit Q. Plaintiff complains that certain statements in the 1978 and 1979 Proficiency Reports were improper.

Plaintiff unsuccessfully sought administrative relief to have the deleterious remarks removed from the 1978 Proficiency Report, however, his request was initially denied by Donald Drake, Personnel Officer at the Spokane Veterans Administration facility and ultimately by defendant Max Cleland, Administration of Veteran's Affairs. Ct.Rec. 53, Exhibits H & P. Subsequently, the instant action was filed seeking to have the quoted comments removed.

Plaintiff's complaint also challenges the comments in the 1979 Proficiency Report, alleging they were untruthful, misleading, conclusionary and constitute misrepresentations of fact. The challenged 1979 comments state as follows:

Dr. Hewitt's numerical score has decreased in the past year, indicating deterioration in performance.

In response to direct questions, both the Chief, Surgical Services and Dr. Dodson, consultant in urology, have told me they would not allow Dr. Hewitt to operate on them.

Dr. Hewitt has been quite careless in completing VA SF 522, the Consent for Surgery form, so that it is not always evident that the patient realizes what operation or procedure he has consented to.

On one recent occasion Dr. Hewitt told the wife of a patient with inoperable carcinoma of the bladder that he could not help the patient because the Devil had taken over the patient's body.

In view of the above, it seems to me that Dr. Hewitt will have to be carefully monitored by the Chief, Surgical Services.

Ct.Rec. 3 at 6-7; Ct.Rec. 49 at Ex. 2, p. 6.

Dr. Hewitt's affidavit admits he did not attempt to obtain administrative relief on the 1979 Proficiency Report. The alleged basis of this decision was the disposition of plaintiff's challenge to the 1978 Proficiency Report which plaintiff felt was completely similar. Ct.Rec. 53 at 5-6.

Plaintiff's complaint contains numerous causes of action against defendants Grabicki and Guilfoil, as well as against co-defendants Daniel Myhre (a former Medical Assistant at the Spokane Veterans Administration facility); then V.A. Administrator Max Cleland and the United States of America. Plaintiff has alleged diversity (28 U.S.C. § 1332), federal question (28 U.S.C. § 1331); 28 U.S.C. § 1343 and pendent jurisdiction as the bases for this court's subject matter jurisdiction.

The substantive allegations are as follows:

1. Defendants Grabicki, Guilfoil and Myhre conspired to deprive plaintiff of his civil rights and that although defendants were aware of the deprivation they failed to act.

2. The Privacy Act, 5 U.S.C. § 552a is unconstitutional on its face and as applied as it constitutes a denial of procedural due process.

3. Defendants Grabicki, Guilfoil, Myhre and Cleland acted in contravention of the Merit System Principle Act, 5 U.S.C. § 2301.

4. Defendants Grabicki, Guilfoil and Myhre individually or in concert acted with intent to damage plaintiff's reputation, good name, integrity, credibility and economic relationships as well as to inflict mental suffering and emotional distress.

5. Defendants Grabicki and Guilfoil breached an oral contract with plaintiff.

6. Defendants Grabicki, Guilfoil and Myhre negligently misrepresented the Proficiency Report comments.

7. Defendants Guilfoil, Grabicki, Myhre, Cleland and the United States of America failed to maintain records with such accuracy, relevance, timeliness and completeness as to ensure an adequate review of the record.

Defendants have asserted numerous grounds in their Motion to Dismiss, including inter alia, failure to exhaust administrative remedies pursuant to 5 U.S.C. § 552a(g); that the Veterans Administration and not then V.A. Administrator Cleland, is the proper defendant; the absence of plaintiff's right to appeal his proficiency rating as plaintiff is not an employee within the coverage of 5 U.S.C. § 2302; qualified immunity as to the defendants Guilfoil, Grabicki and Myhre; the absence of any constitutional violation as a result of the challenged proficiency reports; the discretionary functions exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(c); and the absence of any oral contract or breach thereof.

PRIVACY ACT CLAIMS

The plaintiff Hewitt complains of certain statements contained in his December 6, 1978 Proficiency Report for the year of December 6, 1977 to December 6, 1978. This Proficiency Report, however, rated Dr. Hewitt's overall performance as "satisfactory". Of critical import to this portion of the Privacy Act claim is the fact that no "adverse determination" was based upon the complained of comments. The December 6, 1978 Proficiency Report was as follows:

Although Dr. Hewitt's overall performance as a staff urologist is still satisfactory, there have been a number of incidences during the past year that have required counseling.

1. On at least two occasions, he scheduled patients for elective surgery without a history and physical examination in the chart and became upset when the ORS brought this to my attention and I ordered the surgery cancelled. In one case he then performed the history and physical examination while the patient was under preoperative sedation, had it duly recorded in the chart and then requested to proceed with the scheduled surgery which was denied.

2. Two of his patients with diabetes were not properly managed and required intervention by other members of the staff.

3. Dr. Hewitt's attitude appeared to be that he was only responsible for urological problems. He was advised that he was responsible for all patients assigned to him and should be familiar with all their medical problems. He should exercise good judgment in seeking proper assistance from other members of the staff.

4. On two occasions, during discussions with Dr. Hewitt, he became so angry and emotionally upset that I was temporarily unable to continue on with the discussion.

Since these incidences, there has been improvement in Dr. Hewitt's attitude and performance.

A Proficiency Report on one medical doctor staff member by the Chief, Surgical Services and the Chief of Staff, another medical doctor, is a highly subjective process which is a matter which requires the views, judgments and opinions of the medical experts. Such decisions are for the experts in the medical field, not the courts. Clearly, the Privacy Act was not designed to have such judgments made by federal judges in a trial de novo. See Turner v. Department of Army, 447 F.Supp. 1207, 1213 (D.C.1978). The intent of the Privacy Act is to require governmental agencies to maintain accurate records. In this case, the plaintiff's record is accurate. He disagrees with his superiors' conclusions as contained in his Proficiency Report. Plaintiff contends that the statements made by his superiors are not factually correct, however, he does not contend that in fact these statements were not made by his superiors. As such, plaintiff's record is accurate as to his 1978 Proficiency Report.

Plaintiff has had the opportunity to have the 1978 Proficiency Report reviewed by the Administrator of the Veterans Administration who determined that the 1978 Proficiency Report should not be amended. Pursuant to 5 U.S.C. 552a(d)(3) the plaintiff has had the opportunity to insert a statement in his file setting forth the reason for his disagreement with the refusal of the agency to amend his 1978 Proficiency Report. The Privacy Act does provide for review by this court of the accuracy of the factual content of his record; however, this does not include substituting the judgment and opinion of this court for that of plaintiff's medical superiors. Ferguson v. U.S., 447 F.Supp. 1213 (D.C.1978).

Besides the aforementioned reasons, plaintiff's Privacy Act claim as to his 1978 Proficiency Report must also fail since there is no causal relationship between the statements contained in plaintiff's 1978 Proficiency Report and an adverse determination as to the plaintiff. Plaintiff's proficiency in the 1978 report was "satisfactory". No adverse action was taken...