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Long v. United States Department of Human Services

United States District Court, District of Columbia

November 15, 2019

RAYMOND A. LONG, M.D., Plaintiff,




         The Health Care Quality Improvement Act requires hospitals and other health care entities to file a report with the United States Department of Health and Human Services (“HHS”) whenever a physician voluntarily resigns while under investigation for reasons related to his professional competence or conduct. The report is then posted to an online database, which serves as a flagging system to alert hospitals and other would-be employers of potential issues with the physician's credentials.

         Fifteen years ago, a hospital filed such a report about Plaintiff Dr. Raymond Long, stating that he resigned from the hospital's medical staff after the hospital initiated a corrective action investigation. Plaintiff twice petitioned HHS to void the report, arguing, among other things, that the investigation did not pertain to his professional conduct or competence, and that he was not under investigation when he resigned. HHS denied the petitions, and Plaintiff now seeks judicial review of those decisions. He also seeks to introduce extra-record evidence.

         For the reasons that follow, the court holds that HHS reasonably concluded that the investigation was not initiated for a prohibited purpose and that the investigation was ongoing when he resigned. No extra-record evidence is needed to make this determination. Therefore, HHS's motion for summary judgment is granted, and Plaintiff's motions for summary judgment and to permit the introduction of extra-record evidence are denied.


         A. Legal Background

         In 1986, Congress enacted the Health Care Quality Improvement Act (“HCQIA”) to address the “increasing occurrence of medical malpractice” and the danger of “incompetent physicians . . . mov[ing] from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance.” Pub. L. 99-66, § 402(1)-(2), 100 Stat. 3743, 3784 (codified at 42 U.S.C. § 11101 et seq.). To remedy these concerns, the HCQIA prescribes mandatory peer review and reporting requirements for health care entities, 42 U.S.C. §§ 11131- 11133, sets standards governing professional review actions, id. § 11112, and provides liability protection to professional review bodies and others who comply with those standards, id. § 11111(a)(1).

         As relevant here, the HCQIA requires health care entities to file a report with HHS whenever the entity “accepts the surrender of clinical privileges of a physician . . . while the physician is under an investigation by the entity relating to possible incompetence or improper professional conduct.” Id. § 11133(a)(1)(B). The report is published on the National Practitioner's Data Bank (“Data Bank”), 45 C.F.R. § 60.12, which serves as a “flagging system” to assist “hospitals and other health care entities in conducting extensive, independent investigations of the qualifications of the health care practitioners they seek to hire, or to whom they wish to grant clinical privileges, ” Leal v. Sec'y, U.S. Dep't of Health & Human Servs., 620 F.3d 1280, 1284 (11th Cir. 2010) (internal quotation marks omitted) (cleaned up). A physician may file a response, which will be published alongside the hospital's report of the incident. See 45 C.F.R. § 60.6(d)(2). Upon request, HHS will review the “accuracy of the reported information, ” but it “will not consider the merits or appropriateness of the action or the due process that the” reported physician received. Id. § 60.21(c)(1); see also 42 U.S.C. § 11136(2) (requiring HHS to establish “procedures in the case of disputed accuracy of the information”). HHS may revise or void the report if it determines that the report is inaccurate or that the adverse action was not reportable. See 45 C.F.R. § 60.21(c)(2)(ii), (iv).

         B. Factual Background

         1. Plaintiff's Tenure at the Medical Center

         Plaintiff is an orthopedic surgeon who, beginning in September 2001, obtained clinical privileges to practice at Northwestern Medical Center (“Medical Center”), a hospital in St. Albans, Vermont. Am. Compl., ECF No. 3 [hereinafter Am. Compl.], ¶¶ 10, 32. Plaintiff's relationship with staff at the Medical Center soured early on, which Plaintiff attributes to the fact that he was building an MRI machine that would have put him in direct competition with the hospital. Id. ¶¶ 24-41.

         Between November and December 2003, Plaintiff conducted five shoulder surgeries that resulted in post-operative infections. Joint App'x, ECF No. 27 [hereinafter J.A.], at 67. Plaintiff hypothesized that the infections were deliberately caused by an “unknown person, ” and that the Medical Center was attempting to eliminate a potential source of competition by maligning his professional reputation. See Am. Compl. ¶¶ 64, 171, 178. He subsequently implemented various “corrective” measures designed to prevent additional infections, which a surgical services nurse said were “extreme, ” “made no sense in regard to the prevention of infection, ” and actually increased the risk of infection. J.A. 69. The Vermont Attorney General's office initiated an investigation into the infections, see Id. at 33, but that review apparently never concluded in any charges or accusations of wrongdoing, Oral Arg. Rough Tr. at 10 ¶¶ 10-17.

         2. The Medical Center's Investigation into Plaintiff

         On March 8, 2004, in response to these incidents and others, the Chief Executive Officer (“CEO”) of the Medical Center sent a letter to the Chairman of the hospital's Medical Executive Committee (“MEC”)-the governance committee for medical staff at the hospital-expressing “serious concern[]” that Plaintiff was causing “significant disruption[s] of hospital services.” J.A. 33. The CEO requested that the Chairman determine whether Plaintiff's conduct could have “serious effects on patient outcome, especially in the operating room, as a result of delays in treatment, and a potentially increased risk for infections, ” and whether “corrective action should be initiated.” Id.

         Shortly thereafter, the MEC met and forwarded the request to the Chief of Surgical Services for investigation and recommendation. Id. at 31. The Chief of Surgical Services then convened an Ad Hoc Committee to assess the concerns expressed in the CEO's letter. After reviewing documentation and interviewing hospital staff, the Ad Hoc Committee unanimously concluded that there was “ample evidence” that Plaintiff had conducted himself in a “confrontational manner, ” caused disruptions that “undermine[d] the appropriate team approach to patient care, ” and inappropriately caused staff to deviate from established operating room protocol. Id. at 34. In a letter to the MEC dated March 16, 2004, the Ad Hoc Committee recommended, among other things, that Plaintiff undergo a psychiatric evaluation to ensure “patient safety and to determine if there is a condition in need of treatment, ” and that his charts be sent for external review, including those charts that had already been reviewed internally. Id.

         Over the next few weeks, the MEC reviewed Plaintiff's “extensive history” of disputes with hospital staff, and “repeatedly discussed numerous areas of concern” with Plaintiff. Id. at 36. In a letter to the Medical Center's Board of Directors dated April 5, 2004, the MEC outlined three recommended actions and “request[ed]” that they “be adopted by the Board.” Id. First, it recommended that Plaintiff undergo a psychiatric evaluation within thirty days and authorize the MEC to review the results of that evaluation. Id. at 36-37. Plaintiff was to refrain from performing any surgical procedures pending the Committee's review of the psychiatric evaluation report, and his failure to comply would result in the summary suspension of his staff privileges. Id. at 37. Second, it recommended that outside infectious disease experts conduct a review of post-operative infections at the hospital that would “include, but not be limited to, the post-operative shoulder infections identified by” Plaintiff. Id. Third, it recommended an external review of Plaintiff's charts. Id.

         By letter dated April 6, 2004, the Medical Center's CEO apprised Plaintiff of the MEC's recommendations. Id. at 38. Plaintiff was informed that his failure to comply with the recommended actions would result in the summary suspension of his medical staff privileges. Id. The letter stated that the Board of Directors would “take final action on the recommendations of the MEC” if Plaintiff did not file a request for a hearing within 30 days. Id. at 38-39.

         3. Plaintiff's ...

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