Cerciello v. Sebelius — Mar. 2016 (Summary)

DATA BANK

Cerciello v. Sebelius
Civil Action No. 13-3249 (E.D. Pa. Mar. 31, 2016)

A physician challenged the final decision by the Secretary of Health and Human Services (under the Administrative Procedures Act) to leave the physician’s name as reported to and in the National Practitioner Data Bank (“NPDB”).  The U.S. District Court for the Eastern District of Pennsylvania upheld the Secretary’s decision.

The physician had written an expert report supporting the plaintiff in a malpractice action.  The defendant physician filed a grievance against the physician, Dr. Cerciello, with the American Academy of Orthopedic Surgeons and the American Association of Orthopedic Surgeons (together referred to as “AAOS”).  In reaching its decision, the court found the Secretary’s decision was not arbitrary, capricious, an abuse of discretion, and otherwise in accordance with the law.  The court determined that the Secretary appropriately made her decision based on the findings of the AAOS.  These two organizations had determined that Dr. Cerciello’s reasoning and rationale could detrimentally affect future patient health and welfare by his failure to (i) evaluate the patient based on generally accepted standards, and (ii) have the knowledge of the appropriate standard of care in an expert report. Additionally, the district court determined the Secretary did not violate the physician’s First Amendment right to free speech because the Secretary took no action to restrict the physician’s speech.