Leal v. Sec’y, U.S. Dep’t of Health and Human Servs (Full Text)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JORGE J. LEAL, M.D.,
Plaintiff,
-vs-
Case No. 6:08-cv-1062-Orl-22GJK
SECRETARY, U.S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,
Defendants.
______________________________________
ORDER
This cause is before the Court for review of a final order of the Secretary of the Department
of Health and Human Services denying Plaintiff Jorge J. Leal, M.D.’s request to void an Adverse
Action Report (“AAR”)1 from the National Practitioner Data Bank (“NPDB”). The United States
Magistrate Judge has submitted a Report and Recommendation (Doc. 33) recommending that the
Secretary’s decision be affirmed. After an independent de novo review of the record in this matter,
including the objections filed by Dr. Leal (Doc. 34) and the Secretary’s response to those objections
(Doc. 35), the Court agrees with the findings of fact and conclusions of law in the Report and
Recommendation.
At the outset, Dr. Leal’s objections to the magistrate judge’s recitation of the background of
the case, the parties’ arguments, and the applicable legal principles (Objections 1-9, 13, 16) are
1 All references to the AAR in this Order refer to the Correction Adverse Action Report filed
by Cape Canaveral Hospital on April 17, 2008.
overruled. The magistrate judge fairly and accurately portrayed these aspects of the case,2 and the
Court adopts and confirms them as part of this Order. Furthermore, Dr. Leal’s objections to the
magistrate judge’s ultimate conclusions and recommendations (Objections 10-12, 18) must be
overruled because they merely state that the magistrate judge was wrong without explanation. The
remainder of Dr. Leal’s objections (Objections 14, 15, 17 & 19) essentially reassert prior arguments
regarding the Secretary’s alleged failure to conduct a meaningful review of the AAR. The
magistrate judge found that these arguments lacked merit, and the Court agrees.
As the magistrate judge noted, the Secretary’s review of disputed reports is limited to
resolution of two issues: (1) whether the report is accurate; and (2) whether the reporting entity was
required by law to report the adverse action against the health care provider. Dr. Leal criticizes the
Secretary’s decision with respect to both of these issues.
First, Dr. Leal asserts that the Secretary failed to meaningfully review the accuracy of the
information contained in the AAR. In this regard, Dr. Leal accuses the Secretary of simply “rubber-
stamping” the hospital’s version of the facts as reported and ignoring what Dr. Leal perceives to be
the great weight of the evidence indicating that those facts are false. A review of the contents of the
Secretarial Review Decision, however, indicates that the Secretary did not ignore Dr. Leal’s version
of the events leading to his suspension. Indeed, the Secretary began his decision with a detailed
recitation of the parties’ positions. Then, the Secretary addressed each of Dr. Leal’s areas of dispute,
pointing to specific evidence in the record, as well as pertinent regulations and agency guidance.
2 In relation to Objection 16, the Court recognizes the magistrate judge’s apparent
typographical error in paraphrasing the Secretary’s duties under 45 C.F.R. § 60.14(c)(2)(I-ii), see Doc.
33 at 15; however, this error has no effect on the ultimate conclusion reached by the magistrate judge
and, thus, does not alter this Court’s agreement with the magistrate judge’s recommendations.
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In doing so, the Secretary noted the following with respect to Dr. Leal’s charge that the AAR was
inaccurate:
[I]n the affidavit dated September 17, 2007, that you submitted with your Secretarial
Review Request you admit to the actions for which CCH suspended you. While you
claim that the way the facts are portrayed are “misleading” and “inflammatory,” your
affidavit supports CCH’s claim that the actions did happen. You disagree with the
action the hospital took based on these actions. This issue is beyond the scope of
Secretarial Review.
R. 269. There is substantial evidence in the record to support the Secretary’s conclusions in this
regard. As the Secretary observed, Dr. Leal’s affidavit confirms that the incidents CCH cited as its
reasons for imposing the summary suspension actually occurred. Specifically, Dr. Leal admitted in
his original and supplemental affidavits that on October 3, 2001, he: (a) was frustrated about delays
in getting his patient to surgery; (b) broke a telephone receiver in the doctors’ lounge; (c) dropped
part of a medical chart on the ground as he was taking it from a nurse; (d) threw jellybeans into a
trash can in the medical suite; (e) broke a copy machine in the surgical suite hallway; (f) shoved a
metal rolling cart out of his way while entering the operating suite; and (g) spoke sternly to a nurse
manager, accused her of being a liar and not knowing what was going on in her department, and
questioned her about whether a policy concerning physicians showing up late for surgeries was
being fairly applied to all physicians. See R. 28-32, 203-05. The depositions submitted by Dr. Leal
confirmed these facts. See McLeod Dep., R. 208 (testifying that Dr. Leal grabbed a medical chart
from her and “papers went flying.”); Leal Dep., R. 211-13 (testifying that he was unsure whether
any jelly beans hit the floor when he threw them in the trash can, and he was also unsure whether
the metal cart he pushed out of his way while entering the operating suite caused damage to the
wall); Suarez Dep., R. 221-25 (testifying that Dr. Leal spoke to her in a “loud” tone of voice,
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sounded “angry,” and told her she was “prejudiced.”). Thus, there was substantial evidence in the
record supporting the Secretary’s determination that the AAR was accurate as reported by CCH.
In addition, the Secretary reasonably determined that, to the extent Dr. Leal merely contested
CCH’s characterization of the events of October 3, 2001, his purported dispute of the “accuracy”
of the report was more properly considered an appeal of the hospital’s reasons for taking disciplinary
action. As the Secretary properly noted, such disputes are outside the scope of Secretarial Review.
See U.S. Dept. of Health and Human Servs., Health Res. and Servs. Admin., Div. of Quality
Assurance, Publ’n No. HRSA-95-255, National Practitioner Data Bank Guidebook (2001) F-1 (“The
dispute process is not an avenue . . . to appeal the underlying reasons of an adverse action affecting
the subject’s license, clinical privileges, or professional society membership.”); F-2 (“[A] subject
may not dispute a report in order to appeal the underlying reasons for an adverse action.”); F-3
(instructing the Secretary not to “review the . . . appropriateness of, or basis for, a health care entity’s
professional review action”). Therefore, the Secretary’s decision not to re-weigh the evidence
underlying CCH’s stated reasons for imposing Dr. Leal’s suspension was in accordance with law.
Turning to the second issue that must be considered upon secretarial review, i.e., whether the
reporting entity was required to report the adverse action against the health care practitioner, the
Court agrees with the magistrate judge’s conclusion that the Secretary’s determination that Dr.
Leal’s summary suspension was a reportable event was supported by substantial evidence. The
Secretary noted in his final decision that, according to agency guidance, summary suspensions are
reportable if the following three conditions are satisfied: (1) the suspension is in effect or imposed
for more than 30 days; (2) the suspension is based on professional competence or conduct that
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adversely affects, or could adversely affect, the health or welfare of a patient; and (3) the suspension
was the result of a professional review action taken by the reporting entity. R. 269-70. Dr. Leal
argued that his suspension was not reportable because his alleged conduct did not pose an imminent
danger to the health of any individual, was not the result of a professional review action, and was
unrelated to professional competence or conduct that adversely affected the health or welfare of a
patient. R. 258. The Secretary thought differently, concluding that all three requirements were met.
R. 270.
In support of his conclusion, the Secretary pointed to an October 8, 2001, letter from Dr.
Moore, CCH Medical Staff President, stating specifically that he implemented Dr. Leal’s summary
suspension due to his “disruptive behavior” and “in the best interests of patient care.” R. 269
(quoting R. 33). The Secretary also highlighted an October 23, 2001, letter from Christopher
Kennedy, CCH President, in which Kennedy stated that the reason for Dr. Leal’s summary
suspension was “the violent, threatening, and physically destructive and damaging behavior [Dr.
Leal] displayed on the third floor of the hospital on the evening of October 3, 2001.” R. 269
(quoting R. 35). Though neither letter used the precise language of the second condition for a
reportable summary suspension, i.e., professional conduct that adversely affects, or could adversely
affect, the health or welfare of a patient, the Secretary reasonably concluded that both letters
indicated that Dr. Leal’s actions were considered to be related to his professional conduct and that
the suspension was imposed amid concerns about the effect, or potential effect, of Dr. Leal’s actions
on the health or welfare of hospital patients. Therefore, the Court concludes that the Secretary’s
decision that the adverse action taken against Dr. Leal was reportable must be upheld because it was
supported by substantial evidence.
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As an aside, the Secretary’s rejection of Dr. Leal’s assertion that a summary suspension is
only reportable where it was imposed to protect patients from “imminent danger” was not improper.
First, the “imminent danger” language cited by Dr. Leal governs a health care entities’ conduct of
professional review actions; it does not govern the entity’s ultimate duty to report the action to the
NPDB. See 42 U.S.C. § 11112(c)(2) (relating to “Standards for professional review actions”).
Second, Dr. Leal’s contention that his summary suspension was not imposed to protect patients from
imminent danger challenges the merits of the professional review action, not whether it was
reportable by law. And, as the Secretary noted, the agency cannot conduct an independent review
of the merits of a professional review action when resolving a disputed AAR. Thus, the Secretary
properly declined to indulge Dr. Leal’s request to evaluate whether CCH properly imposed his
summary suspension.
In sum, the Secretary’s determinations that the AAR was accurate and that Dr. Leal’s
summary suspension was reportable to the NPDB were both supported by substantial evidence. In
addition, the Secretary reasonably determined that Dr. Leal’s dispute improperly requested a review
of the merits of CCH’s decision to suspend his clinical privileges, and properly abstained from
evaluating the appropriateness of, or basis for, the hospital’s professional review action. Thus, the
Secretary’s decision to maintain the AAR in the NPDB must be upheld.
Therefore, it is ORDERED as follows:
1.
The Report and Recommendation filed July 28, 2009 (Doc. 33) is ADOPTED and
CONFIRMED and made a part of this Order.
2.
Plaintiff’s Objections to the Report and Recommendation (Doc. 34) are
OVERRULED.
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3.
The Secretary’s June 9, 2008 Secretarial Review Decision is AFFIRMED. The
Clerk shall enter judgment in favor of Defendants.
4.
The Clerk is directed to close this case.
DONE and ORDERED in Chambers, in Orlando, Florida on September 14, 2009.
Copies furnished to:
United States Magistrate Judge
Counsel of Record
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