United States District Court, District of Columbia
RAYMOND A. LONG, M.D., Plaintiff,
UNITED STATES DEPARTMENT OF HUMAN SERVICES, et al., Defendants.
P. MEHTA UNITED STATES DISTRICT COURT JUDGE.
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.
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.
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.
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.
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. §
Plaintiff's Tenure at the Medical Center
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.
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.
The Medical Center's Investigation into Plaintiff
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.”
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.
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.
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.