Health Law Daily HHS wins summary judgment in case of surgeon seeking to void filed HHS report while under investigation
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Thursday, November 21, 2019

HHS wins summary judgment in case of surgeon seeking to void filed HHS report while under investigation

By Donielle Tigay Stutland, J.D.

A federal court found that a physician was under investigation pertaining to professional conduct or competence at the time of his resignation, and as such it will not void a hospital’s adverse action report filed against him with HHS.

The U.S. District Court for the District of Columbia granted summary judgment to HHS in a case brought by a physician looking to have an adverse action report filed with HHS voided. The physician alleged that he was not under investigation at the time of his resignation, nor did the investigation pertain to his professional conduct or competence. He also sought to introduce new evidence that was not part of the previous record. The court granted summary judgment to HHS, finding that HHS reasonably concluded that the investigation was not initiated for a prohibited purpose and that the investigation was ongoing when he resigned. It also found that no extra evidence was needed to make this determination (Long v. HHS, November 15, 2019, Mehta, A.).

Factual Background. Raymond Long, an orthopedic surgeon, began working at Northwestern Medical Center (Medical Center), a hospital in St. Albans, Vermont, in September 2001. During November and December 2003, the physician conducted five shoulder surgeries that all resulted in post-operative infections. At the time, the physician argued that these infections were a result of the Medical Center’s actions, not his own, and that the Medical Center was working against him, because he sought to build an MRI machine that would compete with the Medical Center’s. The Vermont Attorney General’s office initiated an investigation into the infections, but that review apparently never concluded in any charges or accusations of wrongdoing.

In 2004, as a result of these and other incidents, the Medical Center began actions to investigate the infections. The CEO of the Medical Center sent a letter to the Chairman of the Medical Executive Committee (MEC), requesting that the Chairman determine whether surgeon’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." The letter was then forwarded to the Chief of Surgical Services who then formed an ad hoc committee to assess the concerns indicated in the letter. The ad hoc committee concluded that the surgeon 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. The ad hoc committee also recommended that the surgeon undergo a psychological evaluation.

On April 5, 2004, the MEC sent a summary to the Medical Center’s board of directors with recommendations for the surgeon to undergo a psychological examination and refrain from surgery pending the review of such report. On April 6, 2004, the surgeon was notified of the MEC’s recommendations and he was informed that his failure to comply with the recommended actions would result in the summary suspension of his medical staff privileges. The letter stated that the board of directors would "take final action on the recommendations of the MEC," if he did not file a request for a hearing within 30 days.

On the following day, April 7, 2004, the surgeon submitted a resignation letter to the Medical Center. On April 30, 2004, the Medical Center filed an Adverse Action Report with HHS stating that the surgeon had, "voluntar[ily] surrender[ed] [his] clinical privilege(s) while under, or to avoid, investigation relating to professional competence or conduct." In November 2011, the surgeon requested that HHS void the report; however, after reviewing information provided by the Medical Center, HHS denied the request. The surgeon also sought review of this decision in July 2018. Again, HHS denied the surgeon’s request.

HCQIA. The Health Care Quality Improvement Act (HCQIA) requires hospitals and other health care entities to file a report with 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.

The surgeon argued that the Adverse Action Report was inaccurate and must be voided because the Medical Center’s investigation was not related to professional competence or conduct, as required by the HCQIA. He alleged that his resignation was based on pretext and asserted his theory that the hospital treated him adversely because he would be a competitor with his own MRI.

The court found otherwise, noting that HHS had rejected the surgeon’s "speculations and piecemeal evidence that the investigation was a sham," and concluded that "[t]he record shows that the investigation was based on the furtherance of quality health care and not for other prohibited purposes."

The surgeon also argued that HHS arbitrarily and capriciously concluded that he was under investigation when he resigned. He contended that the investigation concluded the day before he resigned. The court found that this argument was contradicted by the evidence, and that no final action was taken as of the date of his resignation.

Finally, while the surgeon had argued that extra-record evidence should be admitted, including a report by a supposed expert on peer-review activity at hospitals, the court followed the general rule that it is to only use "information that the agency had when it made its decision," and the surgeon failed to show that this new information was "needed" when HHS had made its determination. As such, the court granted summary judgment to HHS, denied summary judgment for the physician and denied the surgeon’s motion to permit the introduction of extra evidence.

The case is No. 18-cv-00458 (APM).

Attorneys: Barry Coburn (Coburn & Greenbaum PLLC) for Raymond A. Long. Johnny Hillary Walker, III, U.S. Attorney's Office, for the U.S. Department of Health and Human Services, Alex M. Azar, II, The U.S. and National Practitioner Data Bank.

Companies: National Practitioner Data Bank; U.S. Department of Health and Human Services

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