United States District Court, D. Columbia
August 31, 2005.
HARISHANKAR L. SANGHI, Plaintiff,
ANTHONY J. PRINCIPI, Secretary, Department of Veterans' Affairs, et al., Defendants.
The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
Harishankar L. Sanghi is a psychiatrist who was good at his job
with the Department of Veterans' Affairs ("VA"). Dr. Sanghi,
however, appears to have had an aversion to completing discharge
summaries, which inform subsequent treating physicians of the
course of treatment provided by the VA. When counseling, a
written reprimand, and a 10-day suspension did not result in
completed discharge summaries, Dr. Sanghi was removed from
patient care and ultimately discharged. He sues the VA, alleging
that the decision on his discharge was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law;
obtained without procedures required by law, rule or regulation
having been followed; and unsupported by substantial evidence.
This short summary tells the tale: having reviewed the
administrative record and the arguments of the parties, the Court
finds that the VA is entitled to summary judgment. Plaintiff's
complaint will be dismissed. I. BACKGROUND
Dr. Sanghi began his employment with the VA on July 11, 1977.
Defendants' Statement of Material Facts Not in Dispute ("Facts")
¶ 1. Effective December 30, 1990, he was assigned to the Biloxi
VA Medical Center as a Physician, Chief Grade. Id. He was
discharged effective November 4, 1994. Id.
During March 1993, Dr. Sanghi was verbally counseled regarding
his delinquent discharge summaries by Dr. Lowell Husband, Acting
Chief, Psychiatry Service. Id. ¶ 2. By memorandum dated August
27, 1993, Dr. Sanghi was issued a written counseling memo by Dr.
George B. Tipton, Acting Chief, Psychiatry Service. Id. ¶ 3.
Dr. Tipton had earlier directed Dr. Sanghi to complete all of his
delinquent discharge summaries before leaving work on August 19,
1993, but Dr. Sanghi had not completed that assignment. Id. Dr.
Tipton directed Dr. Sanghi to dictate all delinquent discharge
summaries by no later than September 2, 1993, and to keep current
on all future discharge summaries. Id. Dr. Tipton warned of
"serious disciplinary action" if Dr. Sanghi failed to comply.
Another written counseling memorandum was issued to Dr. Sanghi
by Dr. Tipton on December 17, 1993. This counseling memorandum
indicated that Dr. Sanghi had been "verbally counseled on
numerous occasions regarding delinquent discharge summaries, most
recently in person on 12/9/03 and by telephone on 12/16/03."
Id. ¶ 4. On January 21, 1994, Dr. Tipton issued another
memorandum to Dr. Sanghi making the following points:
(1) that he was pleased with Dr. Sanghi's active
response to his memo of December 17, 1993 and his
completion of the required dictation prior to the
established deadline; (2) that he follows delinquent
dictation closely and notes that Dr. Sanghi is again
in violation of the hospital policy which requires
dictation of the discharge summary prior to
discharge; (3) that because of Dr. Sanghi's previously demonstrated
disregard for prompt dictation, he would be required
to be in strict compliance with local and national
guidelines; and (4) that he was required to complete
the narrative discharge dictation on each patient
prior to the discharge order being written.
Id. ¶ 5. Dr. Sanghi was required to complete all of his
delinquent dictation prior to 4:00 p.m. on January 26, 1994.
These actions did not cure the problem and a formal Reprimand
was issued to Dr. Sanghi on April 1, 1994, for failing to comply
with his supervisor's directions to complete 19 delinquent
discharge summaries by March 21, 1994. Id. ¶ 6. Thereafter, on
May 4, 1994, Dr. Sanghi was suspended for ten days for failing to
comply with directions to complete 26 delinquent discharge
summaries by April 19, 1994. Id. By letter dated June 28, 1994,
the VA proposed to discharge Dr. Sanghi due to his failure to
complete 27 delinquent discharge summaries by June 15, 1994, as
directed. Id. ¶ 7. Dr. Sanghi was detailed to non-clinical
responsibilities pending a decision on the proposed discharge.
Id. The VA notified Dr. Sanghi on July 18, 1994, that it had
decided to discharge him but would allow him to file an
application for disability retirement instead, as he had
suggested in his response to the initial discharge notice. Id.
Dr. Sanghi applied for disability retirement and it was
approved on September 19, 1994, by the Office of Personnel
Management ("OPM"). Id. ¶ 11. However, Dr. Sanghi subsequently
requested to withdraw his disability retirement application and
OPM approved his withdrawal by letter dated October 28, 1994. The
VA notified Dr. Sanghi on November 1, 1994, that his discharge
would be made effective November 4, 1994. The discharge was based
on three separate charges: 1. You failed to comply with VHA Standards and the
Medical Center's requirements regarding dictation of
discharge summaries which require that patient
discharge summaries be completed prior to discharge
and final summaries signed within ten (10) days of
2. You failed to follow your supervisor's directions
dated June 6, 1994, to complete twenty-seven (27)
delinquent summaries by June 15, 1994; and
3. Your failure to dictate discharge summaries
compromises quality patient care and violates
5 CFR 2635.101(b)(5) which states that employees must put
forth an honest effort in the performance of their
Administrative Record ("A.R.") at 813.
As a physician appointed under the authority of
38 U.S.C. § 7401(l), Dr. Sanghi had the right to appeal his discharge (a
"major adverse action") pursuant to 38 U.S.C. § 7461. Subsection
(c)(3) of section 7461 states that "[a] question of professional
conduct or competence is a question involving any of the
following: (A) Direct patient care; (B) Clinical competence."
38 U.S.C. § 7461(c)(3). Dr. Sanghi filed a timely appeal of the
discharge action and requested a hearing before a Disciplinary
Appeals Board ("DAB") on the charges. Facts ¶ 18. The DAB hearing
was conducted during the week of March 14, 1995, and the DAB
sustained the discharge, finding that each of the charges was
sustained in whole. The Under Secretary for Health approved the
DAB decision on July 31, 1995. Id. ¶ 19.
Dr. Sanghi filed his complaint in this action on July 20, 2001
and an amended complaint on August 20, 2001.*fn1 He is
proceeding pro se. Perhaps as a result, the case has had a
troubled procedural history. The complaint was dismissed on May
24, 2002, for failure to effect timely service under Rule 4(m) of the Federal Rules of Civil
Procedure. Dr. Sanghi's motion to reconsider the dismissal order
was granted on July 24, 2002, and the amended complaint was
reinstated. After two extensions, the VA filed its answer on
November 22, 2002. When Dr. Sanghi did not appear at the initial
scheduling conference on January 3, 2003, an Order to Show Cause
by January 21, 2003 why the case should not be dismissed was
issued. Dr. Sanghi timely filed his response and the order to
show cause was discharged. Another scheduling conference was held
telephonically on February 24, 2003, and the Court directed that
the administrative record be filed by March 26, 2003, and that
dispositive motions be filed in May 2003.
Dr. Sanghi repeatedly challenged the adequacy of the
administrative record and the Court suspended the briefing
schedule on May 12, 2003. The VA filed an amended record on June
16, 2003, but Dr. Sanghi remained dissatisfied with it. The
parties fully briefed his motion to compel and the Court directed
the VA to augment the administrative record with specified
documents. The briefing schedule was revised to order dispositive
motions by March 22, 2004. Unfortunately, that was not the end of
the matter and the briefing schedule was again suspended. The
Court held a hearing on May 10, 2004, to address the scope of the
administrative record. Thereafter, the scheduling order was
extended repeatedlyon Dr. Sanghi's motion*fn2 but, on
November 17, 2004, both parties filed motions for summary
judgment on the discharge claim. After a series of requests for
additional time by both sides, briefing was finally completed on
March 31, 2005, when the Court granted Dr. Sanghi's motion for
leave to file a surreply.
The case is now ripe for resolution. II. LEGAL STANDARD
Summary judgment is appropriate when the record shows that no
genuine issue exists as to any material fact and the moving party
is entitled to judgment as a matter of law. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Fed.R.Civ.P.
56(c). Summary judgment is not a "disfavored legal shortcut[;]"
rather, it is a reasoned and careful way to resolve cases fairly
and expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986). In determining whether a genuine issue of material fact
exists, the court must view all facts and reasonable inferences
in the light most favorable to the non-moving party. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574,
587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994).
Only factual disputes that are capable of affecting the
substantive outcome of the case under the governing law are
deemed "material" and "genuine." See Anderson, 477 U.S. at 248;
Laningham v. United States Navy, 813 F.2d 1236, 1242-42 (D.C.
Dr. Sanghi essentially asks the Court to reconsider the bases
for his termination. However, judicial review of a
DAB/Secretarial decision is much more limited. Under
38 U.S.C. § 7462, the Court reviews the administrative record and may set
aside agency actions found to be: "(A) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; (B)
obtained without procedures required by law, rule or regulation
having been followed; or (C) unsupported by substantial
evidence." 38 U.S.C. § 7462(f)(2); see Ross v. U.S.P.S.,
664 F.2d 191, 193 (8th Cir. 1981) ("Judicial review of dismissal from
federal employment is limited to a determination that the
applicable procedures have been complied with, and that the
dismissal was supported by substantial evidence and was not
arbitrary and capricious."). The Court is persuaded by the administrative record that the VA scrupulously followed
the procedures set forth at 38 U.S.C. § 7462, including
establishing a peer review panel of three health care
professionals (which included a member of Dr. Sanghi's own
discipline of psychiatry) that convened a hearing, took evidence
in the form of testimony and documentary submissions, and
ultimately recommended discharge. The Under Secretary for Health
accepted that recommendation and issued the Department's final
decision. Dr. Sanghi was represented by legal counsel throughout
In addition, the DAB made specific findings on each charge,
starting with the observation that "[t]he principle[sic]
undisputed fact in this matter was that Dr. Sanghi did not
dictate the discharge summaries in question." A.R. at 948
(emphasis added). Dr. Sanghi did not contest this basic fact
before the DAB or the Secretary and does not contest it here.
None of the mitigating circumstances offered by Dr. Sanghi to
excuse his failure to complete the discharge summaries was
credited by the Board:
The Board found that the appellant had the ability to
complete the discharge summaries as directed
particularly insofar as he testified that he had
completed other summaries in June, 1994. He further
testified that he refused to work nights or weekends
to catch up on his delinquent summaries. The
appellant maintained that a new telephone dictation
system was installed in January, 1994 and inhibited
his ability to complete his delinquent summaries. The
Board found this argument to lack merit particularly
because the same system was used successfully by the
appellant to dictate current summaries. . . .
The Board found that the appellant had adequate time
to complete the delinquent summaries. . . .
The Board found that the appellant compromised
quality patient care. . . . The appellant testified
that failure to complete timely discharge summaries
(no later tha[n] 60 days post discharge) renders them
clinically irrelevant. The Board found clearly that
discharge summaries are an important part of patient
care and failure to complete them timely compromises
that care. It is evident from the testimony offered that the
appellant did not complete the legitimate assignment
given to him, that he failed even to make any effort
to that end, and that he neither recognized nor
accepted his responsibility to do so.
A.R. at 948-949 (internal citations omitted). The Board entered
twelve (12) additional findings*fn3
to support its
conclusion: "appellant's behavior was repetitive and intentional"
as a result of "a conscious volitional decision;" Dr. Sanghi
"violated the basic tenets of the physician/patient
relationship;" the VA had engaged in progressive discipline; Dr.
Sanghi's years of service and otherwise-good skills were
insufficiently mitigating; Dr. Sanghi's actions had "seriously
compromised" his supervisors' confidence in him; there were no
comparable circumstances on which to base Dr. Sanghi's claim of
disparate treatment; discharge was appropriate; there was a
significant impact on the reputation of the VA due to Dr.
Sanghi's failure to prepare timely discharge summaries; Dr.
Sanghi was "clearly on notice" and "had been repeatedly warned
and progressively disciplined;" there was no potential for
rehabilitation due to, in part, his continuing refusal to
recognize that "his failure to dictate discharge summaries was an
issue of professional conduct or competence;" there were no
mitigating circumstances; and there were no alternative sanctions
available. A.R. at 950-951.
Given the details in the DAB's decision, and the uncontested
fact that Dr. Sanghi was ordered to complete delinquent discharge
summaries by June 15, 1994, and failed to do so, the Court finds
that the DAB's decision, and the Under Secretary's acceptance of
it, were not arbitrary, capricious, or an abuse of discretion and
were supported by substantial evidence. 1. Defenses to the First Charge
Dr. Sanghi attacks the Board's decision in the first instance
by arguing that the record shows contradictory jurisdictional
statements, rendering the final decision of the Under Secretary
arbitrary and capricious and not in accord with the law. The
discharge letter stated that the reasons for his discharge
involved professional conduct or competence, A.R. at 814; the DAB
said that the case involved a discharge "arising in part from a
question of professional conduct and competence," Id. at 947;
and the Under Secretary stated that the charges involved issues
of professional conduct and competence. Id. at 943. This
argument about semantics is wholly without merit. Because Dr.
Sanghi was the subject of a major adverse action that was based
upon the VA's determination that he had shown compromised
professional conduct or competence, the DAB had exclusive
jurisdiction to consider his appeal even if other factors also
pertained. See 38 U.S.C. § 7462 (DABs "shall have exclusive
jurisdiction" in cases involving a question of professional
conduct or competence and a major adverse action).
More basically, Dr. Sanghi argues that there was no substantial
evidence to support the conclusion that he failed in any way to
provide adequate patient care or to document that care in the
patient's chart. Plaintiff's Motion for Summary Judgment ("Pl.'s
Mem.") at 9. He maintains that ["[t]he dictation of [a] discharge
summary is not part of direct patient care." Id.; see also
Plaintiff's Opposition ("Pl.'s Opp.") at 6-7 ("The notation in
the chart of the care provided is part of direct patient care,
but not the dictation of [a] discharge summary."). Dr. Sanghi
also attempts to distinguish direct patient care from the
completion of discharge summaries. He argues that the former is
performed by a physician acting in his professional capacity but
the latter is performed by a physician acting as an employee.
From this distinction, he concludes that the physician qua physician "cannot [be] give[n] [a] deadline which changes the
priority to the detriment of the direct patient care." Pl.'s Mem.
at 10. These arguments are unavailing. First, they overlook the
testimony credited by the DAB exactly on this point: "The Board
found that the appellant compromised quality patient care. The
majority of physicians who testified, including the appellant's
own witnesses, agreed that the failure to timely dictate patient
discharge summaries compromises quality patient care. Such
failures interrupt continuity of care with other clinics,
hospitals or medical facilities and providers." A.R. at 949.
Second, these arguments ask the Court to substitute its judgment
for that of the DAB and the Under Secretary as to what
constitutes professional conduct or competence. The Court's role
is to ensure that the DAB and the Under Secretary acted in
conformance with the law, not to second-guess their professional
medical judgments. Their decision that Dr. Sanghi's repeated and
intentional failures to complete patient discharge summaries
demonstrated a failure of professional conduct or competence is
well supported by substantial evidence.
As quoted above, the first charge accused Dr. Sanghi of failing
to comply with VHA standards. Before this Court, Dr. Sanghi
argues that the standard in question was repealed by the
Secretary on June 8, 1995, A.R. at 945, and therefore could not
properly support the DAB's decision in 1994. This argument is
without merit. The standard in question was in effect when Dr.
Sanghi was directed to complete patient discharge summaries, when
the Board issued its decision on June 9, 1994, when the Under
Secretary issued the final agency decision on July 31, 1995, and
when Dr. Sanghi's discharge became effective on November 4, 1994.
It is irrelevant that the standard was later repealed.
Dr. Sanghi further argues that he was current in dictating
discharge summaries on 10 newly-discharged patients between June
6-28, 1994, that his suspension punished him for failure to complete 27 earlier discharge summaries, and that the VHA
standards and requirements "are static factors, which are
violated only once for each delinquent discharge summary." Pl.'s
Mem. at 13. The first argument is irrelevant: the problem was Dr.
Sanghi's failure to become current on delinquent discharge
summaries. The rest of his argument was rejected by the DAB,
whose reasoning is sound:
The Board considered the appellant's argument that he
was subject to a sort of `double-jeopardy,' as he was
discharged for the same dictation failures for which
he had been previously suspended. The Board concluded
that this argument lacked merit, finding instead that
the appellant was given specific, legitimate
instructions and deadlines to complete a properly
directed assignment. The prior disciplinary action
did not negate the need to dictate heretofore
undictated discharge summaries. The Board felt that
the appellant was blatantly insubordinate in
disregarding this assignment.
A.R. at 948. On June 6, 1994, Dr. Sanghi was given a deadline of
June 15, 1994, to complete the dictation of all delinquent
summaries. See Pl.'s Opp. at 13. Dr. Sanghi explains why he
failed to meet this deadline in his Opposition:
On June 13, 1994, prior to the deadline of June 15,
1994 to complete dictation on delinquent summaries as
directed, the supervisor requested the director to
delay the proficiency rating of Dr. Sanghi for 90
days from its due date of April 19, 1994 so as to
allow Dr. Sanghi to correct his deficiencies prior to
the final report of proficiency (until July 18,
1994). The director approved the supervisor's request
on June 13, 1994. (A.R. at 871). The supervisor sent
the notice of his approval to Dr. Sanghi as required.
Dr. Sanghi relied on the new deadline of July 18,
1994 to dictate summaries as directed.
However, prior to expiry of the new deadline of July
18, 1994, the supervisor proposed Dr. Sanghi's
discharge on June 28, 1994, and sequestered the
records from him. (A.R. at 883) [F.N. 12]. [sic]
Therefore, Dr. Sanghi was not guilty of the third
offense, "failure to follow supervisor's directions"
to be punished by discharged. [sic]
Pl.'s Opp. at 13. There is no connection between the deadline for
Dr. Sanghi to complete his discharge summaries and the deadline for Dr. Sanghi's
supervisor to complete his proficiency report, and Dr. Sanghi
suggests none. Since Dr. Sanghi admittedly was given a deadline
of June 15, 1994 and admittedly failed to complete any of the
delinquent summaries by that date, the Court cannot find that the
DAB was without substantial evidence or acted in a manner that
was arbitrary, capricious or contrary to law when it found that
the first charge against Dr. Sanghi had merit.
2. Defenses to Charge 2
In response to the second charge affirmed by the DAB, Dr.
Sanghi argues: (1) that Dr. Tipton, Chief of Staff, did not have
authority to direct him, an independent practitioner; (2) that
Dr. Sanghi did not disobey his directions; and (3) that the
charge did not arise out of professional conduct or competence.
The argument concerning Dr. Tipton's authority rests on Dr.
Sanghi's asserted ethical obligation to exercise his own
professional judgment when caring for a patient. He states, "When
Dr. Sanghi was performing in direct patient care capacity, he was
not subject to supervision, control, deadline and priorities of
his supervisor to the detriment of the patients under his care."
Pl.'s Mem. at 16. For this reason, he argues that the DAB was
arbitrary and capricious in holding that he "was given specific,
legitimate instructions and deadlines to complete a properly
directed assignment." Id. (citing A.R. at 948). This argument
must fail. It merely demonstrates Dr. Sanghi's continuing opinion
that the preparation of discharge summaries is not part of direct
patient care. He would limit direct patient care to the
circumstances in which he is dealing with a patient or entering
information on the patient's immediate chart, where he exercises
the full discretion of his experience and training. The DAB and
the Under Secretary, however, have found that untimely discharge
summaries interrupt continuity of care and directly compromise
quality patient care. Testimony before the DAB confirmed this point. Dr. Sanghi refuses to see
the connection between accurate and timely discharge summaries
and direct patient care but the considered judgment of the
physicians at the VA cannot be overcome by his lonely opinion.
Dr. Tipton was Chief of Staff at the Biloxi DVA facility and
clearly had the authority and responsibility to ensure adequate
patient care. Both the first and third defenses to Charge 2
advanced by Dr. Sanghi must fail.
Dr. Sanghi admits that he was directed on June 6, 1994, to
complete delinquent discharge summaries by June 15, 1994, and
that he failed to do so. The repetition of the assertion that the
extension of time for his supervisor to complete a proficiency
report extended Dr. Sanghi's deadline for completing the
delinquent discharge summaries fares no better the second time
around. The Court finds this argument illogical and without basis
in the record.
Because the medical testimony clearly connected timely patient
discharge summaries and direct patient care, the Court cannot
find that the DAB was without substantial evidence or acted in a
manner that was arbitrary, capricious or contrary to law when it
found that the second charge against Dr. Sanghi had merit.
3. Defenses to Charge 3
Dr. Sanghi advances four defenses to Charge 3, which accuses
him of compromising patient care because of his failure to
dictate discharge summaries: (1) a lack of record evidence
demonstrating compromised patient care; (2) error by the DAB in
upholding Dr. Tipton's decision on a different basis than the one
stated by Dr. Tipton; (3) error by the DAB in misconstruing the
principle of ethics for government employees; and (4) error by
the DAB because the charge did not arise out of professional
conduct and competence. The first three will be addressed in
turn; the fourth has already been addressed above. The DAB explained that the failure to prepare timely discharge
summaries "interrupts continuity of care with other clinics and
hospitals. The discharge summaries are an important part of
patient care and failure to complete them timely compromises that
care." A.R. at 949. Dr. Sanghi accuses the DAB of applying a
presumption without evidence. Pl.'s Mem. at 20 ("In order for the
agency to attach liability on Dr. Sanghi, the agency must at
least show some evidence that not dictating discharge summaries
within seven working days as directed, in fact, compromised
quality of patient care of some of those patients or they
received substandard ? care without the availability of
discharge summaries."). The Court disagrees. The DAB did not
adopt a presumption; it applied the collective professional
judgment of its members based on the testimony before it. "[T]he
Board felt the appellant had a strong fiduciary role and
responsibility to provide patients and their future caregivers
succinct, accurate summaries of the care provided." A.R. at 950.
It is astonishing that even now Dr. Sanghi argues that a
discharge summary is unimportant because "the original chart was
always available, in addition to computerized record[s],
discharge instructions to the patients, telephonic contact with
the treating physician and information from the patient himself
by a competent out-patient physician." Pl.'s Mem. at 20.
Comprised of physicians, including a psychiatrist, the DAB found
otherwise. The DAB's decision rests on substantial evidence and
is not arbitrary, capricious or contrary to the law.
Dr. Sanghi's second challenge to the DAB's decision on Charge 3
is based upon semantics. He argues that the statement by Dr.
Tipton that his "failure to dictate discharge summaries
compromises quality patient care," A.R. at 813, is significantly
different from the DAB finding that his "failure to dictate
discharge summaries compromises patient care." A.R. at 947; see
Pl.'s Mem. at 20. Dr. Sanghi explains: The phrase, "compromises quality patient care" and
"compromises patient care" are not synonymous. The
former pertains to the improvement in the quality
patient care in the future throughout the facility, a
general function of the entire Medical Staff; and the
lat[t]er pertains to the physician's faceto-face
evaluation and treatment actually provided to a
particular [patient]. The director's removal action
was based on the former, a "quality assurance issue."
(A.R. at 196, 215). [F.N. 16 & 16 A]. [sic] It was
not based on `direct patient care'. [sic] [F.N. 4].
Pl.'s Mem. at 21. Dr. Sanghi offers no support for the
distinction he tries to draw between quality patient care and
patient care, and the Court finds none. In addition, in its
Finding #1 related to Charge 3, "[t]he Board found that the
appellant compromised quality patient care." A.R. at 949.
Accordingly, Dr. Sanghi's argument is without merit.
The third challenge to Charge 3 is based on
5 C.F.R. § 2635.101(b)(5), which states that "employees must put forth an
honest effort in the performance of their duties." Dr. Sanghi
argues that his dictation of discharge summaries for ten
newly-discharged patients in June 1994 was as much an honest
effort to perform his duties as the dictation of "27 delinquent
discharge summaries as directed. . . . The only difference was in
priorities. . . . There is a complete lack of evidence in the
record that Dr. Sanghi did not perform official duties in
official time. . . ." Pl.'s Mem. at 23. This argument fails in
the face of the DAB's comments concerning the potential for
rehabilitation of Dr. Sanghi: "The Board was further concerned
about the appellant's misunderstanding of a physician's terms of
employment, to wit, his refusal to consider the use of weekends
or evenings for completion of summaries." A.R. at 949. In other
words, the DAB found that Dr. Sanghi was not putting forth an
honest effort to bring his discharge summaries current because he
failed and refused to do any work on them outside of his regular
duty hours. In light of the DAB's findings that Dr. Sanghi owed
his patients a physician's fiduciary duty to complete his discharge summaries prior to the patient's discharge, the Court
finds that the DAB's concerns that Dr. Sanghi would not use any
of his evening or weekend time to complete those tasks fully
supportive of its conclusion that he failed to give an honest
effort in the performance of his duties.
4. Defenses to the VA's Procedures
A. Did the Secretary fail to follow his own regulations?
Dr. Sanghi claims that the Under Secretary failed to impose a
like penalty for like offenses, as required by his own
regulations. See A.R. at 1068; Ward v. Brown, 22 F.3d 516
(2nd Cir. 1994) (reversing discharge for failure to consider
regulation mandating that VA employees be given like penalties
for like offenses). He notes that the Table of Penalties used by
the VA states that it is to "be used as a guide in the
determination of disciplinary and major adverse actions to help
ensure that like actions are taken for like offenses." A.R. at
896. Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305 (1981),
identifies the same concept as important in discipline or
discharge cases. The DAB "found the evidence offered was
insufficient both in specificity and substance to permit the
conclusion that [the failures of other physicians to prepare
timely discharge summaries] . . . were directly comparable
circumstances." A.R. at 951. Thus, there was full consideration
of the issue. Dr. Sanghi argues, however, that this finding is
not supported by substantial evidence.
Dr. Sanghi contends that the testimony of his witnesses was
specific and comparable and that delinquency in dictating
discharge summaries was pervasive. This argument is unsuccessful
because there is no evidence in the record that other staff
physicians at the facility failed or refused to complete
delinquent discharge summaries after having been directed to do
so by their immediate supervisors. Dr. Sanghi was not terminated
solely for having many delinquent discharge summaries but, more
critically, for completely failing to correct that deficiency in
the face of repeated instructions to do so and progressive discipline. Since there is
no evidence that a single other doctor had such an egregious
record, there is no basis to find that the DAB or the Under
Secretary failed to impose a like penalty for like offenses.
B. Could the Under Secretary properly review the DAB
Section 7462 of Title 38 gives exclusive jurisdiction to
disciplinary appeals boards appointed under 38 U.S.C. § 7464 (as
was the DAB here) to review any case "which arises out of (or
which includes) a question of professional conduct or competence"
and in which a major adverse action was taken.
38 U.S.C. § 7462(a)(1)(A) & (B). In a mixed case, the board must include "a
statement of the board's exclusive jurisdiction . . . and the
basis for such exclusive jurisdiction." Id. § 7462(a)(2). A
mixed case includes a major adverse action involving professional
conduct or competence and a less-severe adverse action, or does
not arise out of a question of professional conduct or
competence. Id. § 7462(a)(3). In its jurisdictional statement,
the DAB stated that the case involved a discharge "arising in
part from a question of professional conduct and competence,"
A.R. at 947. Dr. Sanghi argues that the Board failed to identify
which charge was a major adverse action arising out of
professional conduct or competence and which was not a major
adverse action or did not arise out of professional conduct or
competence. From this, he further argues that the Under Secretary
was therefore unable to review the seriousness of each charge,
apply appropriate mitigating factors, and determine an
appropriate penalty for each charge sustained, pursuant to
38 U.S.C. § 7464(d)(3). The decision to uphold the DAB was allegedly
arbitrary and capricious for these reasons.
The Court finds no merit to this argument. The DAB properly
stated its exclusive jurisdiction and that it arose from a major
adverse action implicating professional conduct and competence. The statute does not require a disciplinary appeals
board to otherwise parse the charges, as Dr. Sanghi suggests.
Further, the Court finds that the DAB's decision is specific:
Charge 3 alleged, and the DAB found, "that the appellant
compromised quality patient care." A.R. at 949. It further
expressed its "serious concerns about the appellant's disregard
for the clinical importance of adequate and timely discharge
summaries." Id. at 951. Charge 1 was sustained because it was
factually accurate, id. at 948 ("The Board found that Dr.
Sanghi failed to complete patient discharge summaries in
accordance with VHA Standards. . . ."), and Charge 2 was
sustained because Dr. Sanghi "was blatantly insubordinate in
disregarding this assignment" to complete the delinquent
summaries. Id. These findings provide all the distinction that
might be needed, if any is needed at all, between which charge
concerned professional conduct or competence and which concerned
Having carefully considered all of Dr. Sanghi's arguments, the
Court finds and holds that the DAB decision, approved by the
Under Secretary, was not arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; was not
obtained without procedures required by law, rule or regulation
having been followed; and was supported by substantial evidence.
Accordingly, Plaintiff's complaint will be dismissed. A
memorializing order accompanies this memorandum opinion.
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