Rochling v. Dep't of Veterans Affairs

• Decision Date: 08 August 2013
• Docket Number: No. 12–2828.,12–2828.
• Citation: 725 F.3d 927
• Parties: Fedja ROCHLING, M.D., Plaintiff–Appellant v. DEPARTMENT OF VETERANS AFFAIRS; Eric K. Shinseki, in his official capacity as the Secretary for the Department of Veterans Affairs; Department of Health and Human Services; Kathleen Sebelius, in her official capacity as the Secretary for the Department of Health and Human Services, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

725 F.3d 927

Fedja ROCHLING, M.D., Plaintiff–Appellant

v.DEPARTMENT OF VETERANS AFFAIRS; Eric K. Shinseki, in his official capacity as the Secretary for the Department of Veterans Affairs; Department of Health and Human Services; Kathleen Sebelius, in her official capacity as the Secretary for the Department of Health and Human Services, Defendants–Appellees.

No. 12–2828.

United States Court of Appeals, Eighth Circuit.

Submitted: June 11, 2013.

Filed: Aug. 8, 2013.

John McClure Walker, argued and on the brief, Brian J. Brislen, on the brief, Omaha, NE, for appellant.

Robert Homan, AUSA, argued and on the brief, Omaha, NE, for appellee.

Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Following a patient's death at a Veterans Affairs hospital, the family sued the VA for medical malpractice. The VA settled with the family. After reviewing the case, the VA determined that the settlement was “for the benefit of” Dr. Fedja A. Rochling, M.D. This finding required a report to the National Practitioner Data Bank (NPDB). Following his administrative appeals, Rochling sued the VA alleging due-process and Administrative Procedure Act violations. The district court ¹ dismissed the due-process counts for failure to state a claim. The court then denied Rochling's request to supplement the record with additional discovery. The district court ² granted summary judgment to the VA on the APA claims. Rochling appeals these three rulings. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I.

In August 2000, a patient with significant liver problems was treated at the VA hospital in Muskogee, Oklahoma. On August 21, he underwent a laparoscopic cholecystectomy and liver biopsy. Dr. Richard R. Jesudass unsuccessfully attempted an endoscopic retrograde cholangiopancreatogram (ERCP). Dr. Jesudass called the VA hospital in Little Rock to alert them to the patient's upcoming transfer and to recommend a second ERCP.

The patient was transferred to Little Rock on August 31. Dr. Rochling was the “consultant attending Gastroenterologist of record” on three of the six days the patient received care in Little Rock. Rochling first saw the patient on the afternoon of September 1, noting “We were called by Muskogee VA gastroenterology on 8/31/00 to request transfer for a second attempt at ERCP.” Rochling did not perform a second ERCP, writing that “we will reevaluate for ERCP 9/5 based on clinical progress.”

Over the next few days, the patient's condition deteriorated. After seeing him on September 5, Rochling wrote that he did not “think that ERCP is indicated at this point.” The patient died on September 7. The autopsy report stated that the patient

was found to have a surgically resected and clipped common hepatic duct. Also he had hepatic cirrhosis and ascites was noted. The lungs were hyperemic congested. Renal cell carcinoma lesion was noted on left kidney. The obstruction of the common bile duct and rapid increase in serum bilirubin and impairment of liver function are leading causes of death in this patient.

The decedent's family sued the VA, claiming:

The VA surgeon placed clips on the patient's common bile duct and left them there when the surgery was completed, which was below applicable standards of care. Following the surgery the patient began sufferings [sic], signs a[nd] findings indicative of biliary obstruction. Nevertheless, the VA staff failed to timely recognize these signs symptoms and findings and failed to follow-up with the appropriate imaging studies and corrective surgery. As a proximate result of the foregoing the patient died.

The VA settled the claim in March 2003.

In January 2004, the VA notified Rochling of the claim and the settlement. The letter informed him that a panel would review the case for “substandard care, professionalincompetence, or professional misconduct,” determinations which would lead to reporting to the NPDB. The letter offered Rochling the opportunity to submit information to the panel for consideration, which he did. The VA considers a settlement payment to be made for the benefit of a physician if the panel “concludes that payment was related to substandard care, professional incompetence, or professional misconduct.” 38 C.F.R. § 46.3(b). The three-member panel evaluating Rochling's case was composed of three physicians, one being a board-certified general surgeon experienced in laparoscopic cholecystectomy. Rochling received notice of the panel's decision on July 22, which stated: “The Panel concluded that this patient received substandard care and identified the attending Gastroenterologist at the Little Rock VAMC, Fedja A. Rochling, M.D., Bch., as the responsible practitioner.” The decision was “[b]ased on a review of the medical record as well as any additional information submitted by practitioners involved in this case.”

Through two letters from his attorney, Rochling requested reconsideration, offering to provide opinions of independent consultants. The VA Medical Center Director on August 11 stated that the panel would “re-review this case to determine the possible need for further review by a medical sub-specialist.” Rochling submitted two reports from gastroenterologists to the panel on September 15 and October 6. In a letter dated September 16, the panel said it re-reviewed the case on August 11 and came to the same conclusion. On May 8, 2006, the VA submitted its report to the NPDB, stating that the settlement was for the benefit of Rochling. Rochling submitted an administrative dispute in August, seeking withdrawal of the report. The VA denied the request. In December, he sought review from the Secretary of Health and Human Services. She denied the request for review in March 2010, explaining that the arguments Rochling made were beyond the scope of proper HHS review.

Rochling sued in August 2010, alleging violations of the APA and his substantive and procedural due-process rights. In March 2011, the district court dismissed the due-process claims under Federal Rule of Procedure 12(b)(6). In April 2011, Rochling moved for additional discovery and to supplement the record. The district court denied his requests. Rochling v. Dep't of Veterans Affairs, 2011 WL 5525342, at *2 (D.Neb. Nov. 14, 2011). The parties cross-moved for summary judgment on the APA claims. The court granted the defendants' motion.

II.

Rochling contends that the district court erred by dismissing his due-process claims for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6).

This court reviews de novo the grant of a motion to dismiss for failure to state a claim. Butler v. Bank of Am., N.A., 690 F.3d 959, 961 (8th Cir.2012). Reviewing a dismissal under Rule 12(b)(6), this court assumes all facts in the complaint to be true and construes all reasonable inferences from those facts most favorably to the complainant. Id. Although a complaint need not contain “detailed factual allegations,” it must contain facts with enough specificity “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955.Minn. Majority v. Mansky, 708 F.3d 1051, 1055–56 (8th Cir.2013).

A.

A procedural due process analysis has two steps: “first, whether the plaintiffs have a protected interest at stake, and if so, what process is due.” Bliek v. Palmer, 102 F.3d 1472, 1475 (8th Cir.1997). The district court dismissed Rochling's procedural due-process claim finding no protected interest. His complaint pleaded the following injury:

51. As a result of the VA's actions, Dr. Rochling was required to disclose the report to the state boards of Nebraska and Wisconsin.

52. As a result of the Defendants [sic] actions, Dr. Rochling will also be required to disclose and defend the VA's report to the NPDB each time he applies or re-applies for privileges at a medical facility, employment, state medical licenses or insurance.

53. Prior to the VA's NPDB report, Dr. Rochling had never been reported to the National Practitioner Data Bank.

54. The continued existence of the VA's NPDB report results in exponential harm to Dr. Rochling because any denial of employment, privileges or licensure will result in additional reports to the NPDB and further damage to Dr. Rochling.

The plaintiff must first show deprivation of a “constitutionally protected life, liberty or property interest.” Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110, 1114 (8th Cir.2009). “[M]ere injury to reputation, even if defamatory, does not constitute the deprivation of a liberty interest.” Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 6–7, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), citing Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); see also Siegert v. Gilley, 500 U.S. 226, 233–34, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). This court agrees with the district court that Rochling did not sufficiently plead deprivation of a constitutionally protected interest. Rochling's complaint contains only conclusory statements of injury that do not rise above a “speculative level.” See Minn. Majority, 708 F.3d at 1055–56.

This court has held that a “letter of concern” from the state licensing board made part of a physician's public record did not impair his license enough to support a due-process claim. Kloch v. Kohl, 545 F.3d 603, 607–09 (8th Cir.2008). Rochling attempts to avoid Kloch three ways. First, he argues it is distinguishable because Kloch was decided on summary judgment, not on a motion to dismiss. This is of no consequence. If the alleged injury is not a deprivation of a constitutionally protected interest, that ends the inquiry at any stage.

Second, Rochling notes...