Lerner v. Shinseki, CIVIL ACTION NO. 3:12-CV-00565

• Court: United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
• Writing for the Court: Thomas B. Russell
• Parties: GUY M. LERNER Plaintiff v. ERIC K. SHINSEKI, et al. Defendant
• Decision Date: 10 October 2013
• Docket Number: CIVIL ACTION NO. 3:12-CV-00565

GUY M. LERNER Plaintiff
v.
ERIC K. SHINSEKI, et al. Defendant

CIVIL ACTION NO. 3:12-CV-00565

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY LOUISVILLE DIVISION

Date: October 10, 2013

MEMORANDUM OPINION

This action is brought pursuant to 38 U.S.C. § 7462(f) for judicial review of the final decision of the Disciplinary Appeals Board relative to the suspension issued against the Plaintiff, Guy M. Lerner, M.D. Plaintiff has submitted his brief, (Docket No. 31), the Defendant, the United States Department of Veterans Affairs, has responded, (Docket No. 32), and Plaintiff has replied, (Docket No. 33). This matter is now ripe for adjudication. For the reasons that follow, the Court will set aside the decision of the Disciplinary Appeals Board and vacate the penalty imposed.

BACKGROUND

Plaintiff Guy Lerner (Lerner) is a Kentucky-licensed physician employed by the Department of Veterans Affairs (VA) pursuant to 38 U.S.C. § 7401(1) as a full-time permanent physician at the Robley Rex Veterans Administration Medical Center (VAMC) in Louisville, Kentucky. In his Complaint, Lerner named as defendants the VA as well as Edwin Earl Gaar, III, M.D. (Gaar), the VAMC's Chief of Surgery; Wayne L. Pfeffer (Pfeffer), the VAMC's Medical Center Director; Eva M. Egolf (Egolf), who serves as a patient advocate at VAMC and an administrative assistant to Gaar; Christy

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A. Rowzee, a supervisory human resources specialist at the VAMC; and Jennifer Vaught (Vaught), a human resources specialist at the VAMC. In its April 26, 2013, Memorandum Opinion and Order, the Court dismissed each of Lerner's nine numbered claims against the individual named Defendants; however, the Court concluded that Lerner's appeal of the Disciplinary Appeals Board's (DAB) decision was properly before the Court, reasoning:

VA physicians, such as Lerner, are afforded procedural protections when they experience a "major adverse action" as defined by 38 U.S.C. § 7461. A suspension qualifies as a major adverse action. Id. § 7461(c)(2)(B). Further, the major adverse action was the result of "professional conduct or competence." Id. § 7461(c)(3); (Docket No. 1-1, at 2 ("The action being appealed is a major adverse action. The charge upon which the action is based, in whole or in part, involves an issue of professional conduct and competence . . . ."). Adverse actions involving professional conduct or competence are governed by § 7462, which provides for judicial review. Thus, Lerner's appeal of the DAB decision is properly before this Court for review.

(Docket No. 28.)

Lerner began his employment at the VAMC in early 2007. On February 7, 2011, Gaar issued a notice of proposed reprimand to Lerner for (1) failure to follow instructions and (2) inappropriate conduct. (Admin. R. at 335.) The first reason, referred to as "Charge I," related to Lerner's failure to properly label syringes, inappropriate completion of post-procedure notes prior to the completion of the procedure,¹ and failure to follow proper hand-washing procedures. (See Admin. R. at

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335.) These alleged infractions, according to the notice of proposed reprimand, occurred on four dates between February 2010 and June 2010. (Admin. R. at 335.) The second reason, referred to as "Charge II," related to Lerner's alleged inappropriate conduct toward a patient on July 16, 2010. (Admin. R. at 335.) The "specification" in support of Charge II stated: "Specifically, when the patient began to exhibit disruptive behavior towards you while in clinic, you became increasingly angry and the patient reported you called him an 'idiot.' You admitted calling him a 'clown.' Both words are unacceptable and your conduct was inappropriate." (Admin. R. at 335-36.) Lerner provided a written reply to the notice of proposed reprimand on February 25, 2011, insisting that the charges were without merit. (Admin. R. at 110-12.) Lerner further argued that "most of the specified charges occurred almost one year ago and the issues, while extremely minor in nature, were immediately addressed and corrected." (Admin. R. at 110.) Lerner's union representative, Sandra Richardson (Richardson), also submitted further information on Lerner's behalf. (See Admin. R. at 337.)

On April 13, 2011, Marylee Rothschild, M.D. (Rothschild), Chief of Staff at the VAMC, reduced the proposed reprimand to an admonishment. (Admin. R. at 337-39.) Rothschild noted that she had reviewed Lerner's work for the period of February 28 through March 3, 2011, and "found complete pre and post medical procedure notes in a timely manner." (Admin. R. at 337.) Rothschild also noted that "during an unannounced accreditation readiness review on March 23, 2011, it was shown that the appropriate hand washing was done prior to donning sterile gloves." (Admin. R. at 337.) Rothschild commented, however, that "during the same review, it was noted that

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identification of the medication used was still not in compliance." (Admin. R. at 337.) Rothschild concluded:

Last, it is my expectation that you maintain professionalism during any and all interactions with patients. Failure to do so disrupts continuity of care and negatively impacts a patient's perception of the care being provided. Although you reportedly provided additional care to this patient in later productive encounters, the initial interaction was quite unfortunate. This patient encounter contributed to my determination of an admonishment.

(Admin. R. at 337.)

Thereafter, on June 16, 2011, a Weingarten² fact-finding meeting was conducted by Egolf, Gaar's administrative assistant. (See Admin. R. at 278-86.) Present at that meeting were Egolf, Lerner, and Richardson, Lerner's union representative. In her report of that meeting, Egolf wrote: "I began the meeting by stating that I had been given authority by Dr. Gaar to conduct the Fact Finding review. Sandy Richardson asked what the 'charges' were; I noted we would be asking questions about the following: 'time out' process, medication vials, May 13, 2011 incident - interaction with nurse practitioner, and alleged blogging." (Admin. R. at 278.) Apparently, no formal charges or other disciplinary action came about as a result of that meeting. (See Docket No. 31, at 5.)

Another Weingarten meeting was conducted by Egolf on July 13, 2011. (Admin. R. at 267-74.) By this point, Gaar apparently had delegated to Egolf the

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authority to conduct an investigation and fact finding relative to Lerner. (Admin. R. at 160 (Hr'g Tr. at 29).) The July 13 meeting addressed several interactions among Lerner and his patients during the two-week period of June 23 through July 7, 2011. The first encounter occurred between Lerner and "Patient A" on June 23³, 2011. (Admin. R. at 267.) According to Egolf's notes, Patient A stated that Lerner asked him "something to the effect of 'are you a real UofL' fan and then made some comment about they couldn't get anyone into the MBA." ⁴ (Admin. R. at 290.) The second encounter occurred on June 29, 2011 among Lerner, "Patient B," Patient B's wife, and Patient B's son, all of whom are African American. (Admin. R. at 269.) According to Egolf's notes, Patient B stated that Lerner called Patient B's wife a "dummy," referred to Patient B's son as a "big gorilla," and, when Patient B's wife asked questions about Patient B's treatment, Lerner responded, "who's the patient here?" (Admin. R. at 277.) The third encounter occurred between Lerner and "Patient C" on July 7, 2011. (Admin. R. at 272.) According to a note transmitted to Egolf by Patrice Gordon, R.N. (Gordon), Patient C stated "that Dr. Lerner told him to call the surgery department and complain." (Admin. R. at 275.) Gordon's note also reflected that Patient C "stated that Dr. Lerner told him that the surgery dept is trying to get rid of him." (Admin. R. at 275.) The record reflects that Egolf spoke directly with Patient A and Patient B, (see Admin. R. at 277, 288), but Egolf did not speak directly with Patient C, (see Admin. R. at 160 (Hr'g Tr. at 31)).

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By letter of September 29, 2011, Gaar informed Lerner that he was proposing a ten-day suspension based on six instances of alleged inappropriate conduct, which were labeled as "Specifications" A through F. (Admin. R. 34-36.) Specification A related to Lerner's encounter with Patient B in which Lerner allegedly called Patient B's wife a "dummy" and referred to his son as a "big gorilla." (Admin. R. at 34.) Specification B also related to Lerner's encounter with Patient B, specifically Lerner's alleged statement "who's the patient here?" to Patient B's wife. (Admin. R. at 34.) Specification C related to Lerner's encounter with Patient C and Lerner's alleged statements "the nurse quit" and "the surgery department is trying to get rid of me." (Admin. R. at 34.) Specification D related to Lerner's interaction with Patient A and Lerner's alleged comments about whether Patient A was "a real U of L fan." (Admin. R. at 35.) Specification E appears to relate to Lerner raising his voice to Egolf during the June 16 Weingarten meeting when questioned about his "blogging" activities while at work. (Admin. R. at 35; see Admin. R. at 282-83.) Specification F relates to Lerner's demeanor at the July 13 Weingarten meeting, specifically (1) Lerner's having laughed when questioned whether he notified the staff when he leaves the work area, and (2) Lerner's comments to the Weingarten meeting reporter that she should "not be taking personal calls, or words to that effect,"...