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DISTRICT OF COLUMBIA v. SIMPKINS

November 12, 1998

DISTRICT OF COLUMBIA, DONNA WILSON, ESQUIRE, AND BERNARD ANDERSON, M.D., APPELLANTS,
V.
CUTHBERT O. SIMPKINS, M.D., APPELLEE.



Appeal from the Superior Court, Linda Turner Hamilton, J. [720 A2d Page 895]

Before Wagner, Chief Judge, and Terry, Associate Judge, and Gallagher, Senior Judge.

The opinion of the court was delivered by: Gallagher, Senior Judge:

This is an interlocutory appeal *fn1 by the District of Columbia, Bernard Anderson, M.D., and Donna Wilson, Esquire, from a trial court judgment declining to dismiss defamation claims brought against them by appellee, Dr. Simpkins, a former physician at the District of Columbia General Hospital ("the Hospital"). *fn1

The proceeding revolves around a charge by Dr. Simpkins that Donna Wilson, while General Counsel for the Hospital, defamed [720 A2d Page 896]

him by improperly submitting a report to the National Practitioner Data Bank ("the Data Bank") asserting that Dr. Simpkins had resigned from the Hospital while his surgical capabilities were under review. Secondly, Dr. Simpkins charged defamation by Dr. Anderson (then Chief of Surgery), based on comments made in memoranda to other Hospital officials concerning Dr. Simpkins' clinical competence. The information contained in Dr. Anderson's memoranda had provided the basis for the report submitted by Donna Wilson to the National Practitioner Data Bank.

I.

During 1991 and 1992, appellant Dr. Anderson served as Chief of Surgery at the Hospital. In that capacity, Dr. Anderson had supervisory authority over appellee Dr. Simpkins, who was an attending physician. In a memorandum dated March 28, 1991, Dr. Anderson wrote to Anthony Jean-Jacques, M.D., who was Dr. Simpkins' Section Chief within the Department of Surgery, indicating that he had concerns regarding Dr. Simpkins' clinical judgment and competence. Dr. Anderson concluded the memorandum by requesting that he, along with Dr. Jean-Jacques and Dr. Simpkins, meet to formally discuss his concerns. He also requested that Dr. Jean-Jacques, as Section Chief, review Dr. Simpkins' work to determine whether his clinical privileges needed an adjustment.

In response to Dr. Anderson's memorandum, Dr. Jean-Jacques recommended in a letter dated May 30, 1991, that Dr. Simpkins' cases be monitored for six months and that Dr. Simpkins be encouraged to consult with his supervisors when he considered it necessary. The letter also advised that at the end of the six-month review period, further recommendations would follow. While the letter indicated that the recommendations were to take effect on June 17, 1991, Dr. Simpkins alleges that the recommendations were conditioned upon Dr. Anderson agreeing to them, and that there is no documentation evidencing such an agreement. On June 3, 1991, Dr. Simpkins submitted his resignation to the Hospital, citing substandard management and patient care as his reasons for leaving. *fn2

On July 11, 1991, Donna Wilson, Esquire, then of the Hospital's Office of Legal Counsel and Risk Management, informed Dr. Simpkins that she would be reporting his resignation to the Data Bank pursuant to the mandates of the Health Care Quality Improvement Act of 1986 ("HCQI Act"). *fn3 In a letter to Ms. Wilson dated July 22, 1991, counsel for Dr. Simpkins questioned the basis for the assertion that the law required Ms. Wilson to report Dr. Simpkins' resignation to the Data Bank. The letter also requested, among other things, that Dr. Simpkins be permitted to review any proposed report to the Data Bank prior to its submission.

On September 3, 1991, Dr. Simpkins filed a grievance with the Chairman and the Medical Director of the Hospital objecting to Ms. Wilson's proposed submission to the Data Bank. He argued that the purported review and recommendations made by Dr. Jean-Jacques did not constitute "an investigation" by the Hospital within the meaning of the HCQI Act. He further argued that his voluntary resignation did not constitute "a surrender of clinical privileges of a physician" under the statute. On October 4, 1991, the Hospital reported Dr. Simpkins' resignation to the Data Bank, and the report referred to comments made by Dr. Anderson in memoranda to Dr. Jean-Jacques concerning Dr. Simpkins' competence. *fn4 [720 A2d Page 897]

II.

Appellants contend that the report submitted to the Data Bank regarding Dr. Simpkins' resignation was absolutely privileged. Specifically, Ms. Wilson asserts that because she exercised a mandatory duty pursuant to the HCQI Act, absolute immunity shields her conduct. Dr. Anderson, on the other hand, argues that his immunity derives from discretionary actions taken within the outer perimeter of his official duties.

This court has recognized that a District of Columbia government official is entitled to absolute immunity when performing an act required by law. See District of Columbia v. Thompson, 570 A.2d 277, 293 (D.C. 1990); *fn5 see also Goggins v. Hoddes, 265 A.2d 302, 303 (D.C. 1970) (absolute privilege for report required by law to be filed with unemployment compensation board). We have also held that absolute immunity shields an official's conduct when such conduct was "(1) . . . within the 'outer perimeter' of his official duties, and (2) the particular government function at issue was 'discretionary' as opposed to 'ministerial.' " Moss, supra note 6, 580 A.2d at 1020 (citing Thompson, supra, 570 A.2d at 294 & n. 14). Accordingly, whenever a government official's conduct meets ...


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