August 17, 2013

162017_132140396847214_292624_nOn August 8, 2013, the United States Court of Appeals for the Eighth Circuit upheld the VA’s determination that a medical malpractice settlement that it paid following a patient’s death at a Veterans Affairs hospital was “for the benefit of” a consulting gastroenterologist and therefore the settlement had to reported to the National Practitioner Data Bank (“NPDB”). The gastroenterologist challenged the VA’s decision to report the malpractice settlement to the NPDB, alleging violations of his due process rights and violations of the Administrative Procedure Act (“APA”). The appellate court upheld the U.S. District Court’s determination that the physician’s due process rights and APA rights had not been violated by the VA.

The Underlying Facts

In August 2000, a veteran was treated for significant liver problems at the VA hospital in Muskogee, Oklahoma. A laparoscopic cholecystectomy and liver biopsy was performed on August 21, 2000 but the attempted endoscopic retrograde cholangiopancreatogram (“ERCP”) was unsuccessful. The veteran was transferred to the VA hospital in Little Rock on August 31, 2000, for a possible second ERCP.

The appellant gastroenterologist was the “consultant attending Gastroenterologist of record” on three of the six days the veteran was treated at the Little Rock VA hospital. The gastroenterologist first saw the veteran at the Little Rock VA hospital on the afternoon of September 1, 2000, noting, “We were called by Muskogee VA gastroenterology on 8/31/00 to request transfer for a second attempt at ERCP.” Nonetheless, the gastroenterologist did not perform a second ERCP at that time, instead stating that “we will reevaluate for ERCP 9/5 based on clinical progress.”

The veteran’s condition deteriorated over the next few days. On September 5, 2000, after seeing the veteran, the gastroenterologist wrote in the record that he did not “think that ERCP is indicated at this point.” The veteran died two days later from what the autopsy found to be “a surgically resected and clipped common hepatic” and that “The obstruction of the common bile duct and rapid increase in serum bilirubin and impairment of liver function are leading causes of death in this patient.”

The veteran’s family filed a medical malpractice claim against the VA, alleging, “The VA surgeon placed clips on the patient’s common bile duct and left them there when the surgery was completed, which was below applicable standards of care. Following the surgery the patient began sufferings [sic], signs a[nd] findings indicative of biliary obstruction. Nevertheless, the VA staff failed to timely recognize these signs symptoms and findings and failed to follow-up with the appropriate imaging studies and corrective surgery. As a proximate result of the foregoing the patient died.”

The VA settled the medical malpractice claim in March 2003. In January 2004, the appellant gastroenterologist received notice from the VA that after a review by a three-member physician panel, the settlement payment was considered to have been made for the benefit of a physician because the payment “was related to substandard care, professional incompetence, or  professional misconduct” (38 C.F.R. § 46.3(b)), which required the VA to report the settlement to the NPDB. On May 8, 2006, the VA submitted its report to the NPDB, stating that the settlement was for the benefit of the appellant gastroenterologist.

The gastroenterologist challenged the VA’s report to the NPDB by filing a federal lawsuit in August 2010 in the  U.S. District Court for  the District of  Nebraska – Omaha, alleging that his APA and his substantive and procedural due-process rights were violated. In March 2011, the district court dismissed the due-process claims and subsequently granted the defendants’ motion for summary judgment as to his APA claims. The gastroenterologist thereafter appealed to the U.S. Court of Appeals for the Eighth Circuit.

The Appellate Court stated that, “The official purpose of the [NPDB] report is to disclose information, not to reprimand. The VA is required to submit a copy of all NPDB reports “to the State Licensing Board where the practitioner holds a license, and to the State Licensing Board in which the facility is located. 38 C.F.R. § 46.3(d) … here, the NPDB report is not available to the general public. See 42 U.S.C. § 11137 … [the  gastroenterologist’s] allegations of “exponential harm” are speculative and conclusory. Because he has failed to plead the deprivation of a constitutionally protected interest, the district court did not err by dismissing the procedural due-process claim.”

The Appellate Court further stated, “The panel found that the settlement was for the benefit of [the gastroenterologist] because he failed to properly diagnose and perform a second ERCP. His own notes, the medical records, and other evidence before the panel support this conclusion. The panel based its decision on ‘a review of the medical record as well as any additional information submitted by practitioners involved in this case.'” The Appellate Court held, “The VA’s decision was not arbitrary or capricious, and the district court did not err by granting summary judgment.”

Source  Fedja Rochling, M.D., Plaintiff – Appellant v. Department of Veterans Affairs, et al., Defendants – Appellees, United States Court of Appeals For the Eighth Circuit, No. 12-2828.

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