Doe v. Rogers — Oct. 2015 (Summary)

NATIONAL PRACTITIONER DATA BANK

Doe v. Rogers
No. 12-01229 (TFH) (D.D.C. Oct. 9, 2015)

The United States District Court for the District of Columbia granted in part and denied in part a motion to dismiss filed by the Secretary of the Department of Health and Human Services (“HHS”) in a suit brought by a surgeon alleging that the Secretary unlawfully accepted, maintained, and continued to release an inaccurate, fraudulent, and untimely Adverse Action Report that was submitted to the National Practitioner Data Bank (“NPDB”) by the physician’s prior employer. This litigation arose out of an emergency laparoscopic appendectomy in which the surgeon mistakenly removed a segment of a 14-year-old patient’s Fallopian tube. Shortly after, the surgeon “voluntarily suspend[ed]” his surgical privileges and, then, “tendered a short letter of resignation.” Two months later, the hospital submitted a report to the NPDB indicating, among other things, that the surgeon resigned while under investigation.

After unsuccessfully challenging the report with the NPDB, the surgeon brought a suit for damages and declaratory and injunctive relief against HHS, the NPDB, and three NPDB officials. The surgeon asserted a litany of claims, including a claim that the NPDB’s actions regarding the report were unlawful because although it was classified as a “voluntary surrender of clinical privileges, while under, or to avoid, investigation relating to professional competence or conduct,” there was no evidence that an investigation was occurring either before or at the time the surgeon surrendered his surgical privileges and resigned. The court disagreed, referencing the administrative record which contained substantial evidence that an investigation was underway at the time of his resignation.

The court also rejected the surgeon’s argument that an investigation was not commenced because there was no formal request for an investigation by the Credentials Committee, per the medical staff bylaws. The court observed as follows: “Nowhere…does the Health Care Quality Improvement Act, [HHS] regulations implementing the Act, or the NPDB Guidebook state that, to qualify as an ‘investigation’ for the purpose of the mandatory reporting requirements, the Hospital’s actions must be taken in accordance with its own internal bylaws or policies. The reportable event is based on an ‘investigation’ as that term is contemplated by the statute, not as contemplated by a health care entity’s individualized and internal governing documents. To hold otherwise would result in ad hoc reporting and reporting inconsistencies across the multitude of health care entities throughout the nation.”

Similarly, the court dismissed the surgeon’s argument that the NPDB should have rejected the report because it was untimely. According to the court, “[b]ecause the statute imposes a significant sanction for the failure to submit a report – i.e., the potential loss of immunity pursuant to the [Health Care Quality Improvement Act] – the clear message is that Congress intended to compel all reporting required by the statute.” The court also found that the surgeon’s due process rights were not violated by defendants concluding that, among other things, “[t]he harm in this case…is the result of private hospitals responding to information contained in the [NPDB] and not the result of government action that changed [the surgeon’s] [employment or clinical privileges] status.” However, the court remanded to the Secretary the question of whether the statement that “the hospital’s quality assurance review of this matter indicates departures by the physician from standard of care” was reportable.