Robinson v. E. Carolina Univ., NO. 4:17-CV-112-FL

• Court: United States District Courts. 4th Circuit. Eastern District of North Carolina
• Writing for the Court: LOUISE W. FLANAGAN, United States District Judge
• Citation: 329 F.Supp.3d 156
• Parties: Barbara L. ROBINSON, Plaintiff, v. EAST CAROLINA UNIVERSITY; John Mark Williams M.D., in his individual capacity and his official capacity; Mark D. Iannettoni M.D., in his individual capacity and his official capacity; Jody Cook MS, RN, CPHRM, in her individual capacity and her official capacity; and MagMutual Insurance Company d/b/a MagMutual Insurance Agency, LLC, Defendants.
• Decision Date: 03 August 2018
• Docket Number: NO. 4:17-CV-112-FL

329 F.Supp.3d 156

Barbara L. ROBINSON, Plaintiff,
v.
EAST CAROLINA UNIVERSITY; John Mark Williams M.D., in his individual capacity and his official capacity; Mark D. Iannettoni M.D., in his individual capacity and his official capacity; Jody Cook MS, RN, CPHRM, in her individual capacity and her official capacity; and MagMutual Insurance Company d/b/a MagMutual Insurance Agency, LLC, Defendants.

NO. 4:17-CV-112-FL

United States District Court, E.D. North Carolina, Eastern Division.

Signed August 3, 2018

329 F.Supp.3d 161

Charles F. Bond, Physicians' Advocates, Berkeley, CA, Mary-Ann Leon, The LeonLaw Firm, P.A., Greenville, NC, for Plaintiff.

Stephanie Ann Brennan, Amar Majmundar, Olga E. Vysotskaya De Brito, North Carolina Department of Justice, Kelly Margolis Dagger, Ellis & Winters, LLP, Raleigh, NC, Jonathan A. Berkelhammer, Ellis & Winters LLP, Greensboro, NC, for Defendants.

ORDER

(SEALED)¹

LOUISE W. FLANAGAN, United States District Judge

329 F.Supp.3d 162

This matter is before the court on plaintiff's amended motion for preliminary injunction (DE 36); defendants East Carolina University, Jody Cook ("Cook"), Mark D. Iannettoni ("Iannettoni"), and John Mark Williams's ("Williams") (collectively, "ECU defendants") motion to dismiss (DE 73); defendant MagMutual Insurance Company's ("MagMutual") motion to dismiss (DE 78); and the parties' motions to seal various documents (DE 39; DE 47; DE 82). The issues raised have been fully briefed and are ripe for adjudication. For the following reasons, the court grants defendant MagMutual's motion to dismiss, grants in part and denies in part ECU defendants' motion to dismiss, grants the parties' motions to seal, and denies plaintiff's motion for preliminary injunction.

STATEMENT OF THE CASE

Plaintiff commenced this action by complaint filed August 15, 2017, together with motion for temporary restraining order and preliminary injunction. On September 1, 2017, the court denied without prejudice plaintiff's motion for temporary restraining order and preliminary injunction, directing plaintiff to file an amended motion for preliminary injunction on or before September 22, 2017, "including specification of the injunctive relief sought and the defendants against whom the relief is sought." (DE 21 at 4-5). On September 12, 2017, the court granted the parties' consent motion for protective order, and thereafter, plaintiff filed the instant amended motion for preliminary injunction on September 26, 2017, following the court's grant of an extension of time so to do.

Plaintiff seeks injunctive relief concerning a medical malpractice payment report related to a sternotomy procedure performed on April 14, 2015, submitted by defendant MagMutual to the National Practitioner Data Bank ("NPDB"), wherein plaintiff is allegedly falsely identified as the person responsible for performing the procedure. Plaintiff requests an order requiring defendant MagMutual void the NPDB report and take steps to render the effects of submitting the report null, as well as an order prohibiting defendant MagMutual from filing any additional NPDB reports concerning the procedure at issue during the pendency of this litigation. (DE 36 at 1-3; DE 55 at 8 (clarifying injunctive request is solely against defendant MagMutual) ).

Plaintiff relies upon her own affidavit together with that of Dr. Alan P. Kypson, North Carolina licensed physician. (DE 37-1, DE 37-2). She also relies upon certain documentary evidence, the authenticity of which appears undisputed. These materials include NPDB guidebook excerpts and pamphlet concerning North Carolina Medical Board ("NCMB") investigations. (DE 37-5, DE 37-6). Also included, and filed under seal, are the following documents regarding the settlement process with patient regarding the April 14, 2015 procedure and ensuing NPDB and North

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Carolina medical malpractice reports: 1) correspondence among plaintiff and others including defendants Cook and MagMutual concerning both settlement process and ensuing reports; 2) correspondence among patient and others including defendants Cook and MagMutual concerning the settlement process; 3) the confidential settlement agreement and release; 4) the NPDB and North Carolina medical malpractice reports; and 5) a letter from the North Carolina Medical Board to plaintiff concerning its review of the settlement made on plaintiff's behalf. (DE 38, DE 38-1, DE 38-2, DE 38-3; DE 38-4). Additionally, the following documents are included, also filed under seal: patient's medical charts dating September 3, 2014 through May 2, 2016; job posting advertisement for clinical instructor at East Carolina University; and correspondence from defendant Iannettoni to plaintiff concerning the termination of plaintiff's employment at East Carolina University. (DE 38, DE 38-1, DE 38-3).

Thereafter, defendants filed motions to dismiss; however, plaintiff subsequently filed an amended complaint on November 7, 2017, rendering defendants' motions moot. Plaintiff's claims as found in her amended complaint relate to 1) the NPDB report and 2) gender discrimination related to her employment at ECU. More specifically, plaintiff asserts seven claims for relief, which are as follows:

1) Claims against defendants Williams, Iannettoni, and Cook, in their official capacities, and against defendant MagMutual, for declaratory and injunctive relief;

2) Claims against defendants Williams, Iannettoni, and Cook, in their individual capacities, for violations of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 for unequal treatment under the law;

3) Claim against defendant Cook, in her individual capacity, for violation of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 for deprivation of due process rights;

4) Claim against defendant MagMutual for unfair and deceptive practices act, in violation of N.C. Gen. Stat. § 75-1.1 etseq. ("UDPA");

5) Claims against defendant MagMutual for bad faith breach of contract and constructive fraud;

6) Claims against defendants Cook, in her individual capacity, and defendant MagMutual, for civil conspiracy; and

7) Claim against defendant Williams in his individual capacity for defamation.

(Am. Compl. (DE 67) at 23-38).

Regarding plaintiff's first claim for declaratory and injunctive relief, plaintiff requests the court:

1) Declare that ECU's investigation concerning the patient's claim resulting from the sternotomy performed on April 14, 2015 was a biased and incomplete investigation, that the ECU Defendants' conduct was unlawful, and that the subsequent findings are invalid and unjustified.

2) Declare that the report sent to the NPDB finding that Dr. Robinson was responsible for performing an unnecessary surgical procedure on April 14, 2015 is false.

3) Declare that Dr. Robinson's role in the April 14, 2015 sternotomy does not constitute a reportable event under the rules of the NPDB.

4) Declare that the Medical Malpractice Payment Report and North Carolina Medical Board Malpractice Payment Report generated as a result of Defendant ECU's investigation and submitted to the National Practitioner Data

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Bank and the North Carolina Medical Board was improvidently issued.

5) Declare that Plaintiff's status with the National Practitioner Data Bank and the medical licensing agencies is nunc pro tunc to August 9, 2017 and that Plaintiff may truthfully respond in the negative to questions about whether she has been the subject of a medical malpractice payment report, or, whether a medical malpractice payment has been made on her behalf, as though Defendants' actions leading to the August 10, 2017 medical malpractice payment report and notifications to the state medical licensing agencies identified had not occurred, ab initio.

6) Issue an injunction enjoining the ECU Defendants and MagMutual Insurance Company to take all necessary steps to void the report submitted on August 10, 2017.

7) Issue an injunction enjoining the ECU Defendants and MagMutual Insurance Company to take all necessary steps to void the reports submitted to any state medical licensing authority.

(Id. at 23-24).

Plaintiff asserts jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332. (Id. at 2).² On December 5, 2017, both ECU defendants and defendant MagMutual filed the instant motions to dismiss plaintiff's amended complaint. Both groups of defendants assert in part that the court lacks jurisdiction over plaintiff's claims related to the NPDB report because 1) plaintiff failed to exhaust her administrative remedies regarding the NPDB report and 2) defendants have immunity under the Health Care Quality Improvement Act ("HCQIA"), 42 U.S.C. § 11101 etseq., under which the report was made to the NPDB. Plaintiff filed responses to both motions to dismiss on January 9, 2018, to which both defendants filed replies on January 23, 2018.

STATEMENT OF THE FACTS

The facts alleged in the amended complaint may be summarized as follows.

A. Allegations Related to the NPDB Report

Between July 2014 and October 2016 plaintiff was employed in the Department of Cardiovascular Surgery at the Brody School of Medicine at East Carolina...