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October 28, 1996

Arnold C. Evans, M.D., Plaintiff,
William J. Perry, Secretary of Defense, et al., Defendants.


The opinion of the court was delivered by: GREEN

I. Introduction

 This matter is before the Court upon cross-motions for summary judgment. The Plaintiff, Dr. Arnold C. Evans ("Dr. Evans") brings this case under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706(2) and asks the Court to reverse a decision by the Defendants to restrict the clinical privileges of Dr. Evans and to require him to be retrained. The Court holds that the actions of the Defendants in this matter were not arbitrary and capricious and, therefore, it shall grant the Defendants' Motion for Summary Judgment and deny the Plaintiff's Motion for Summary Judgment.

 II. Facts

 Dr. Evans was hired in January 1992 as a General Medical Officer at Kimbrough Army Community Hospital ("KACH"). Subsequently, he received clinical privileges as a gynecologist. On April 25, 1994, a patient filed a complaint with a KACH Patient Representative, alleging that Dr. Evans had removed unnecessarily her tube during surgery and that he did so without her consent. (Defs. Ex. 4.)

 Dr. Evans's supervisor, Dr. Ophelia Patterson, received the patient complaint. (Defs. Ex. 5.) Dr. Patterson was Chief of the Department of Surgery. On April 28, 1994, Dr. Patterson advised Dr. Evans as follows: "A review of [the patient's] chart revealed that the documentation on the history and physical forms was totally unacceptable and does not meet the standard of care at this hospital." (Defs. Ex. 5.)

 On the same day, the Credentials Committee convened to address this "potentially serious concern." (Defs. Ex. 6.) The Committee decided to wait until the Department of Obstetrics and Gynecology at Walter Reed Army Medical Center ("WRAMC") assessed the complaining patient before taking any credentialing action. (Defs. Ex. 6.) The Committee also stated, "An additional five cases of this same provider are being reviewed at WRAMC, which came to the WRAMC providers' attention when they were doing surgery here at KACH." (Id.) Although the Committee acknowledged "previous concerns" regarding the adequacy of care provided by Dr. Evans, it concluded that there was insufficient information to do an "abeyance procedure." (Id.) The Committee also alluded to "a question . . . raised very recently by one of our staff surgeons concerning Dr. Evans's care." (Id.)

 On June 1, 1994, the KACH Commander asked the Deputy Commander at WRAMC to appoint Major John Byron, the Chief of Gynecology to conduct an informal investigation and issue a report concerning the standard of care offered by Dr. Evans between July 1993 and June 1, 1994. (Defs. Ex. 7.) The Committee took no action regarding Dr. Evans pending receipt of the report. (Defs. Ex. 8.)

 In a letter dated August 2, 1994, the Chief of General Surgery wrote, "I have been directly involved in several cases over the past several months which raise doubt in my mind as to the competence of Dr. Evans and his ability to care for patients independently." (Defs. Ex. 9.) She went on to list several incidents which, in her opinion, demonstrated incompetence on the part of Dr. Evans. (Id.)

 On August 3, 1994, Col. Maguire, the Chairperson of the Credentials Committee, sent a written notice to Dr. Evans advising him that his clinical privileges had been "temporarily suspended" and that the suspension would "generally not exceed 60 days." (Pl. Ex. D; Defs. Ex. 22.) The notice mentioned the basis for the action: the concerns of other physicians and the enclosed report of Dr. Byron. (Id.)

 Dr. Evans requested a hearing and sought the presence of Dr. Byron and the records of all cases reviewed by Dr. Byron in his evaluation. On September 19, 1994, September 29, 1994 and October 12, 1994, Dr. Maguire provided further notice of various aspects of the hearing. (Pl. Ex. F, I; Defs. Exs. 25, 26, 28.)

 The Credentials Committee held a hearing on October 18, 1994. Dr. Byron appeared as a witness, and discussed each of the 27 cases which he reviewed in his report and described his concerns. (Pl. Ex. J at 2; Defs. Ex. 11 at 2.) Dr. Evans discussed the care he gave in each case and answered questions posed by the Committee. (Id.) Dr. Evans presented a written statement and had an expert witness, Dr. John Clark, testify concerning the quality of care and the appropriateness of Dr. Evans's actions. The Committee report states that Dr. Clark "generally did not discuss any cases specifically" and that he conceded that Dr. Evans's "documentation was substandard." (Id.)

 The Committee deliberated for three hours over the entire record including all evidence submitted by Dr. Evans. (Id. at 3.) The Committee found that: (1) Dr. Evans's skills in obtaining adequate patient history and documentation of physical examinations were below acceptable standards; (2) his documentation was poor; (3) his management of common gynecological problems was substandard; (4) his technical performance of laparoscopy was substandard; and (5) his surgical skills and post-operative management were substandard. (Id. at 3-4.) The Committee voted 7 to 1 to maintain the suspension and set terms for later reinstatement.

 The Committee recommended that Dr. Evans be given the opportunity to take six months of refresher training in clinical and surgical gynecology after which the Committee would review a written evaluation of his performance and reevaluate his privileging status. (Id. at 5.) The Committee "did not assume responsibility for finding" a training program and "recognized that without this period of training his privileges [would] be revoked." (Id.)

 After reviewing the Committee recommendations, Commander David Roberts asked the Committee to clarify its recommendation concerning Dr. Evans's current status. (Defs. Ex. 12.) The Commander believed that a six month suspension was inconsistent with AR 40-68. The Committee convened on November 1, 1994 to discuss the Commander's concerns. (Pl. Ex. M; Defs. Ex. 13.) Ultimately, the Committee decided to limit Dr. Evans's privileges to those of a general medical officer under direct supervision and to require completion of a six-month refresher training to be arranged by Dr. Evans and to commence no later than January 3, 1995. (Id.) Dr. Evans could apply for reinstatement of privileges after successfully completing the program. (Id. at 3.)

 On December 5, 1994, Dr. Evans appealed his voluntary restriction to the Commander of the U.S. Army Medical Command. (Pl. Ex. Q.) The U.S. Army Medical Command Appeals Committee met on May 19, 1995 and recommended that the Commander affirm the decision below. (Pl. Ex. V; Defs. Ex. 17.) On June 7, 1995, the Deputy Commander wrote, "After careful consideration of all the facts, I feel that there is sufficient evidence to uphold the action of Commander [Roberts.]" (Id.) The Commander mistakenly characterized Commander Roberts's final action as a "revocation of [Dr. Evans's] clinical privileges," but this administrative error was corrected ten days later. (Id. at 3)

 Dr. Evans appealed the action to the Surgeon General, (Pls. Ex. X), and the appeal was denied on December 21, 1995, (Pls. Ex. Z; Defs. Ex. 18.).

 III. Discussion

 A. Zone of Interest

 The Defendants argue that Dr. Evans may not maintain this suit because he does not fall within the "zone of interest" of the regulation that controls this matter. The federal judiciary has adopted this "prudential standing" principle which requires a plaintiff's injury to fall within the "zone of interests" sought to be protected by the provision which furnishes the legal basis for the complaint. See Lujan v. National Wildlife Federation, 497 U.S. 871, 883, 111 L. Ed. 2d 695, 110 S. Ct. 3177 (1990). The zone of interest adequate to sustain judicial review is particularly broad in suits to compel federal agency compliance with the law, since Congress itself has pared back traditional prudential limitations by the APA. FAIC Securities, Inc. v. United States, 247 U.S. App. D.C. 235, 768 F.2d 352, 357 (D.C. Cir. 1985).

 Although Dr. Evans brings suit under the APA, Army Regulation 40-68 essentially provides the basis for his complaint. One purpose of this regulation is to "promote the professional development and enhance the capabilities of the military and civilian members of the [Army Medical Department]." AR 40-68, P 1-1c. The regulation is, in part, designed to improve the professional development of Dr. Evans, a member of ...

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