By Allison Shelton and Beth Anne Jackson, Brown & Fortunato
On December 3, 2021, the D.C. Circuit Court of Appeals issued a decision in Long v. HHS, No. 19-5358, upholding the dismissal of a physician’s claim that the Department of Health and Human Services (HHS) failed to appropriately review his dispute concerning a report filed in the National Practitioner Data Bank (NPDB). Despite a somewhat bizarre series of facts, the case provides insight into HHS’s review of purported “sham” peer reviews and the legal interpretation of the term “investigation” for purposes of mandatory NPDB reports.
In 2003, Dr. Raymond Long performed five shoulder surgeries at Northwestern Medical Center in Vermont. Each patient experienced a post-operative infection. Dr. Long believed that a person acting on behalf of the hospital intentionally infected his patients to retaliate against him for “building an MRI machine that would have put him in direct competition with the hospital.”
Dr. Long implemented various measures designed to prevent additional infections that were considered extreme, nonsensical, and likely to increase the risk of infection. The hospital’s Chief Executive Officer sent a letter requesting the Medical Executive Committee (MEC) to initiate corrective action due to “serious concerns” that Dr. Long was disrupting hospital operations and “potentially [increasing] the risk for infections” with his new measures. Thereafter, an ad hoc committee of the medical staff investigated and found that Dr. Long engaged in disruptive conduct and caused staff to deviate from operating room protocols.
Upon receipt of the ad hoc committee’s report, the MEC further reviewed the matter and met with Dr. Long. Subsequently, the MEC recommended that the hospital’s Board of Directors obtain an external review of Dr. Long’s charts and summarily suspend Dr. Long if he failed to undergo a psychiatric evaluation. After receiving a letter informing him of the MEC’s recommendations and of his right to request a hearing, Dr. Long submitted a letter of resignation.
Under the Health Care Quality Improvement Act, hospitals are legally required to file a report with the NPDB in the event a physician resigns while “under an investigation . . . relating to possible incompetence or improper professional conduct.” Pursuant to this requirement, the hospital filed a report with the NPDB which indicated that Dr. Long voluntarily resigned his privileges while under an investigation relating to his professional competence or conduct.
Over seven years later, Dr. Long requested that HHS void the NPDB report. HHS affords a dispute resolution process in the event a practitioner takes issue with an NPDB report. The scope of HHS’s review during the dispute resolution process is limited, however. While HHS may determine whether the information in the report is accurate and whether the underlying action was reportable, HHS cannot assess the merits or appropriateness of the action. In Dr. Long’s case, HHS determined that the NPDB report was accurate as filed and found no basis to void it.
Approximately six years later, Dr. Long asked HHS to reconsider its initial determination. HHS found that the investigation was ongoing when Dr. Long resigned and that Dr. Long’s claim of a “sham” peer review was beyond the scope of HHS’s review. Nonetheless, HHS reviewed Dr. Long’s evidence and concluded the evidence “did not establish that the peer review was a sham.” After receiving HHS’s determination, Dr. Long sought judicial review in the U.S. District Court in D.C.
On November 15, 2019, the District Court granted summary judgment in favor of HHS. In this opinion, the District Court first considered Dr. Long’s claim that the investigation was part of a “sham” peer review. Since Dr. Long submitted evidence suggesting that the NPDB report was not accurate because the investigation did not in fact relate to his professional conduct, the District Court indicated that HHS had a duty to consider such evidence and explain HHS’s rationale for accepting or rejecting the claim. Because HHS’s determination included a “wealth of evidence in the record supporting its conclusion that [the] . . . investigation related to [Dr. Long’s] professional conduct or competence,” the District Court found that HHS conducted an appropriate review of the matter.
Next, the District Court considered Dr. Long’s claim that the investigation was not ongoing. Dr. Long claimed that the investigation concluded when the MEC issued its recommendation, and he was afforded hearing rights. The District Court disagreed, stating that “[a]t the hearing, [Dr. Long] would have had an opportunity to present evidence and call witnesses to rebut the MEC’s findings and recommendations. . . . The availability of such hearing demonstrates that the hospital’s investigation on the matter was not yet complete.” Accordingly, the District Court concluded that the investigation was ongoing at the time of Dr. Long’s resignation. Dr. Long appealed to the D.C. Circuit Court of Appeals, which upheld the District Court’s decision.
This case is a good reminder that an investigation may be ongoing even if the matter at issue is the subject of a fair hearing. The case is also notable due to its treatment of Dr. Long’s claim of a sham peer review. Even though such claim may be outside HHS’s scope of review, HHS may nevertheless assess the claim. Thus, it is crucial for hospitals and medical staff to thoroughly document peer review activities to demonstrate their legitimacy. Moreover, such documentation will be critical to the preparation of an accurate and defensible NPDB report.