Randall v. U.S., 93-1792

Citation30 F.3d 518
Decision Date26 July 1994
Docket NumberNo. 93-1792,93-1792
PartiesShirley M. RANDALL, M.D., Plaintiff-Appellant, v. UNITED STATES of America; United States Department of the Army; Donna E. Shalala, Secretary of Health and Human Services; Michael P.W. Stone, Secretary of the Army; Alcide M. Lanoue, General, Surgeon General of the Army; Kevin C. Kiley, Colonel, individually and in his official capacity as Deputy Commander for Clinical Service and Chairman of the Credentials Committee for Womack Army Community Hospital; Elmer M. Casey, Colonel, individually and in his official capacity as Commander of Womack Army Community Hospital; John T. Wilcox, Lieutenant Colonel, in his official capacity; William D. Strampel, Lieutenant Colonel, Chief of the Quality Assurance Division of the Army; Unknown Named Members of the U.S. Army, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

ARGUED: Iris McCollum Green, Green & Foushee, Washington, DC, for appellant. Peter Rolf Maier, Civil Division, U.S. Dept. of Justice, Washington, DC, for appellees. ON BRIEF: Frank W. Hunger, Asst. Atty. Gen., Douglas J. McCullough, U.S. Atty., Barbara L. Herwig, Civil Div., U.S. Dept. of Justice, Washington, DC, for appellees.

Before CHAPMAN, Senior Circuit Judge, ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation, and KNAPP, Senior United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge CHAPMAN wrote the opinion, in which Judge ELLIS and Senior Judge KNAPP joined.

OPINION

CHAPMAN, Senior Circuit Judge:

Shirley M. Randall, M.D., a former United States Army physician, brought this action against the United States and two of her former supervisors for alleged violations of her constitutional rights associated with limitations placed on her practice while she was an anesthesiologist at the Womack Army Community Hospital ("Womack") at Fort Bragg, North Carolina. The defendants moved for dismissal under Rule 12(b)(6), arguing that Randall had failed to establish that the Government had violated her constitutional rights and that the individual defendants were qualifiedly immune from suit. The district court granted the Government's motion to dismiss and we affirm.

I.

Dr. Randall entered the United States Army in June 1984, shortly after her graduation from medical school at the University of Virginia. During her tenure with the Army, Randall was stationed in Heidelberg, Germany, Fort Polk, Louisiana, and Fort Sam Houston, Texas. Randall's supervisors completed numerous evaluations of her work, some good and some bad. The good evaluations stated that Randall's performance was "excellent," "outstanding" and "superior." The bad ones expressed concern over her ability to take direction, to function without supervision, and to react to crisis situations.

Randall arrived at Womack on January 10, 1990. She was given provisional privileges to practice anesthesiology with qualified supervision for a period of 365 days. 1 Army regulations provide that the "[f]ailure to attain and retain required proficiency levels for defined privileges by the end of the provisional period will require an evaluation as to whether revocation or permanent restriction of privileges is appropriate." Army Regulation ("AR") 40-68 4-2(a)(4)(b). The Army may restrict a doctor's privileges based upon reasonable cause to doubt his or her competence to practice or for any other cause affecting patient safety. AR 40-68, 4-9(a). Reasonable cause includes a single act of gross negligence or a pattern of substandard care. AR 40-68, 4-9(a)(1), (3).

Over the course of 1990, Randall demonstrated numerous instances of poor judgment, including leaving a patient during the course of a medical procedure when the patient's anesthesia was wearing off, and failing to have a patient's blood typed or to call for additional blood as the patient was losing blood during the course of a procedure. On December 9, 1990, Randall received notice that the Womack credentials committee would conduct a hearing concerning allegations that she was not qualified to practice as an independent anesthesiologist.

On January 8, 1991, the credentials committee met to evaluate Dr. Randall's performance while at Womack and to consider an adverse privileging action against her. Dr. Randall and her attorney were present at the hearing, where she called and questioned witnesses, and presented evidence to rebut the allegations of substandard care and deficient knowledge. The credential committee elected to continue Randall's provisional privileges with supervision for a period of five months and gave her notice of the decision on January 22, 1991.

At the end of the five month period, the credential committee decided to extend Randall's provisional practice for another month, but notified Randall that they would meet again sometime after June 21, 1991 to evaluate her status. 2 On June 25, 1991, Major Michael Kidd, M.D., former Chief of Anesthesiology at Womack, recommended that Randall receive full clinical privileges, but he expressed some concern over his recommendation because of his lack of opportunity to observe Randall during complex cases. Despite this endorsement, the committee met again on July 11, 1991 and decided to limit Randall's practice due to her "inability to practice as an independent anesthesiologist." The committee recommended that Randall be limited to practicing simple anesthetics without supervision and restricted her ability to perform more complex cases. Once approved by the Commander, this action would be considered adverse and therefore reportable to the National Practitioner Data Bank.

Randall did not receive notice prior to the meeting, but did receive notice of the recommendation and was informed that she could challenge the recommendation at a hearing. She requested a hearing which was set for August 13, 1991. The notice stated in part The credentials committee will hold the hearing on August 13, 1991 at 0830 hours ... You have the right to be present, to present evidence and call witnesses in your behalf, to cross-examine witnesses called by the committee, to consult legal counsel.... Failure to appear at the hearing will constitute a waiver of both the rights listed here and the right to appeal.

Randall acknowledged receipt of the notice and informed the committee that she would attend the hearing along with her attorney. Randall requested an extension which was granted and the hearing was rescheduled for August 26, notice of which was sent to Randall on August 9. Her attorney was notified on August 22, but neither Randall nor her attorney appeared on the 26th for the hearing. The hearing was again rescheduled, this time for September 9 and notice was sent to Randall, which she says she did not receive, and to her attorney, which was received. On September 9, 1991 neither Randall nor her attorney appeared. The committee rescheduled the hearing, setting September 27 as the final date, and gave Randall notice by hand delivery on the 26th. Randall responded that since she had recently left the Army, "my schedule is not flexible enough to allow me to attend your hearing without compensation." Randall did not show for the last scheduled hearing.

On September 27, 1991, the committee met and recommended that her privileges be limited and that their recommendation be forwarded to the Commander for final approval. 3 At the hearing, evidence was offered that Randall had trouble handling instructions, had completed a report for a procedure that never occurred, and showed poor judgment on a number of crucial occasions. One of Randall's supervisors, Dr. Kidd, testified that Randall had committed numerous instances of faulty judgment, and that Randall's knowledge and clinical skills were no better than those of a first year medical student and below 90 to 95 percent of the nurse anesthetists at Womack. On March 23, 1992, the Army submitted the following instruction on Randall to the National Practitioner Data Base: "Restriction of clinical privileges Incompetence." 4 Randall brought this action against the United States and Colonel Kevin C. Kiley and Colonel Elmer M. Casey, in their official and individual capacities, alleging deprivations of her substantive due process rights by the limitations placed on her practice and the report to the National Practitioner Data Bank. Second, she claimed she was denied procedural due process by the committee's failure to provide her notice of the July 11 hearing, denial of opportunity to attend the July 11 hearing and present witnesses, and denial of representation of counsel at the August 13 hearing. Third, she alleged money damages against the individual defendants.

Defendants moved for dismissal under Federal Rule of Civil Procedure 12(b)(6) for Randall's failure to make out a claim under which relief may be granted. Defendants argued that Randall had failed to establish a constitutional violation as required by Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Defendants argued that Randall was afforded adequate process throughout the administrative hearings. Further, defendants argued that the individual defendants enjoyed qualified immunity for three separate reasons: (1) Randall failed to make out a constitutional violation, (2) superior officers enjoy immunity from suit from inferior officers, and (3) federal statutory law protects individuals who participate in the creation of medical quality assurance records from suit.

The district court granted the motion, finding first that Randall had failed to establish a violation of a Constitutional right as mandated by Siegert. The court found that Randall's voluntary resignation and the Army's refusal to extend her limited privileges did not result in a deprivation of property. The court also found that...

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