Sobel v. U.S., 08-4001-SAC.

• Decision Date: 31 July 2008
• Docket Number: No. 08-4001-SAC.,08-4001-SAC.
• Citation: 571 F.Supp.2d 1222
• Parties: Eitan SOBEL, M.D., Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Kansas

571 F.Supp.2d 1222

Eitan SOBEL, M.D., Plaintiff, v. UNITED STATES of America, Defendant.

No. 08-4001-SAC.

United States District Court, D. Kansas.

Filed July 31, 2008.

Order Denying Reconsideration September 10, 2008.

COPYRIGHT MATERIAL OMITTED

Eitan Sobel, M.D., Osage Beach, MO, pro se.

David D. Plinsky, Office of United States Attorney, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

SAM A. CROW, Senior District Judge.

This case comes before the court on plaintiff's motion for entry of default, and on defendant's motion to dismiss. The plaintiff is a physician who brings suit pursuant to the Federal Tort Claims Act, alleging negligence in a report by the VA Hospital to the National Practitioner Data Bank (NPDB) which found him responsible for the death of a patient.

Background

Plaintiff is a hospitalist who has practiced medicine since 1987. In 2003, he was employed as a physician at the Colmery-O'Neill Veteran's Administration Hospital in Topeka, Kansas. In November of that year, one of plaintiffs patients died after plaintiff conducted a procedure on her. The patient's family sued the V.A. Hospital, which investigated the matter and settled the case over plaintiffs objections. Plaintiff agrees that the patient's "death occurred as a result of the procedure." Dk. 17, p. 2. Plaintiff does not believe, however, that her death occurred as a result of medical malpractice, noting the coroner's opinion that the complication "was very unusual and could not have been prevented or predicted." Id.

The V.A. Hospital's internal investigation named the plaintiff as the responsible practitioner for the patient's death. The VA reported the settlement payment to the NPDB, as required. See 42 U.S.C. § 11131(a). The NPDB was established through the Healthcare Quality Improvement Act (HCQIA) of 1986, which was enacted "to improve the quality of health care and to reduce the number of incompetent physicians." Hancock v. Blue Cross-Blue Shield of Kansas, Inc., 21 F.3d 373, 374 (10th Cir.1994). See 42 U.S.C. § 11101. The NPDB is a reporting agency established by Congress to "restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance." Lee v. Hospital Authority of Colquitt County, 353 F.Supp.2d 1255, 1260 (M.D.Ga.2004).

As a result of the report, plaintiff is required to reveal the occurrence in every application to any hospital at which he requests privileges, on job applications, state medical license applications, board applications, and to training agencies and malpractice insurance agencies. Plaintiffs amended complaint alleges that negligent acts of the peer review committee in its investigation and the negligent report to the NPDB will cause him future lost income, future damage to his reputation, and the future out of pocket expense of higher medical malpractice insurance premiums. In addition to monetary damages, the amended complaint seeks injunctive relief or mandamus by requesting the Court to instruct the defendant to remove its report to the NPDB which found plaintiff to be the responsible practitioner for the death of the patient.

This court's jurisdiction is based upon the Federal Tort Claims Act (FTCA), the "exclusive remedy" for torts by government employees acting within the scope of their duties. United States v. Smith, 499 U.S. 160, 166, 111 S.Ct. 1180, 1185, 113 L.Ed.2d 134 (1991).

Motion for default

Plaintiff moves for entry of default, asserting that the defendant has failed to answer or otherwise plead within the requisite time. The defendant opposes the motion.

The controlling facts are not in dispute. Plaintiff filed his amended complaint on April 4th, and mailed a summons to defendant by certified mail. The summons states that the defendant is "required to serve on plaintiffs attorney . . . an answer to the complaint which is served on you with this summons within 60 days after service of this summons on you, exclusive of the day of service." Dk. 21, Exh. 3. Plaintiff filed his motion for default on June 4th, the 61 st day after April 4th. The defendant filed its response to plaintiffs amended complaint, the present motion to dismiss, on June 5th.

Defendant correctly cites the applicable "counting" rules, not reflected on the face of the summons, and likely not known to plaintiff who is acting pro se. See Fed. R. Civ. Pro. 4, 5, 6. Those rules serve to extend the 60-day period and thus permit the defendant to have timely filed its motion to dismiss, in response to plaintiffs amended complaint, on June 5th. Plaintiffs motion for entry of default shall thus be denied.

Motion to dismiss

The government's motion to dismiss asserts lack of subject matter jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1). The party invoking the jurisdiction of the federal court has the duty to establish that federal jurisdiction exists. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.1974). Because the courts of the United States are courts of limited jurisdiction, there is a strong presumption against federal jurisdiction. Id.

The motion contends that plaintiff has failed to exhaust his administrative remedies under the FTCA, that the court lacks jurisdiction under the FTCA to issue injunctive or mandamus relief, and that plaintiffs claims fall within FTCA exceptions for: 1) libel, slander, or defamation, and 2) interference with contractual rights, and 3) discretionary functions. See 28 U.S.C. § 2680(h); § 2680(a). In response to the government's motion,¹ the plaintiff concedes that any claims for libel, slander, defamation, or interference with contractual rights are subject to dismissal, as is his claim for injunctive or mandamus relief.² Accordingly, the court addresses the issues of exhaustion and the discretionary function exception.

Exhaustion

The government first contends that plaintiff has failed to exhaust his administrative remedies. Plaintiff responds that he has done all he could, both through the VA Hospital, and through the U.S. Department of Health and Human Services (HHS) which administers the NPDB.

The FTCA constitutes a limited waiver of the federal government's sovereign immunity from private suit. See 28 U.S.C. § 1346(b); Estate of Trentadue ex rel. Aguilar v. United States, 397 F.3d 840, 852 (10th Cir.2005). It imposes a jurisdictional bar against claims brought before the exhaustion of administrative remedies. 28 U.S.C. § 2675(a); Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir.1999). See 28 U.S.C. § 2675(a); Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268, 270 (10th Cir.1991).

Plaintiff, as a physician who is the subject of a NPDB report, disputed the challenged report through HHS. A letter from the Secretary of the HHS shows it received plaintiffs request for review of the report filed concerning him with the NPDB, and reviewed his case. Dk. 6, Exh. 2, p. 8. Plaintiff asserts that the dispute was fully and finally denied by the Secretary, Dk. 22, p. 2, quoting convincingly from the Secretary's final decision which held that plaintiffs claims were beyond the scope of its review, and that only the VA could void the report or remove his name from it. Dk. 22, p. 2-3. This court is not aware of any other administrative steps the plaintiff could have taken with HHS, once it informed plaintiff that his dispute was beyond the scope of the Secretary's review.

Plaintiffs amended complaint additionally shows that plaintiff took steps to challenge the report within the VA. Plaintiff asserts that when he received an adverse report from the VA's review panel [the Medical Legal Affairs Committee], he appealed the committee's decision to Dr. John B. Grippi, M.D. Thereafter, a reconsideration was conducted, which affirmed the decision of the peer review panel by letter to plaintiff dated August 22, 2007. Nothing in the record shows, and the government does not suggest, that plaintiff was noticed of another avenue of appeal then available to him within the VA. Thus plaintiffs amended petition is sufficient to make a prima facie case of exhaustion.

The government has not adequately rebutted plaintiffs showing. Although the government generically contends that plaintiff did not exhaust his administrative remedies, the government does not inform the court what more the plaintiff should have done or where he should have done it. Based upon the facially sufficient assertions in the pleadings and the government's failure to present a more satisfactory showing of the facts indicating the specific administrative route plaintiff failed to take, the court declines to dismiss on this ground.

Discretionary function exception

The government additionally contends that plaintiffs claims fall within the discretionary function exception to the FTCA. If a claim against the government falls within an exception to the FTCA, the cause of action must be dismissed for want of federal subject matter jurisdiction. See Dalehite v. United States, 346 U.S. 15, 31, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); Tippett v. United States, 108 F.3d 1194, 1196 (10th Cir.1997). This "discretionary function exception poses a jurisdictional prerequisite to suit, which the plaintiff must ultimately meet as part of his overall burden to establish subject matter jurisdiction." Aragon v. United States, 146 F.3d 819, 823 (10th Cir.1998) (quotations omitted).

The "discretionary function exception" excepts "[a]ny claim based upon ... the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." Section 2680(a). To determine whether conduct falls within the discretionary function exception, the Court applies a two-part test:

First, we ascertain the precise governmental conduct at issue and consider whether that conduct was "discretionary," meaning...