section has the effect of discouraging litigation by physicians, not encouraging it.
Although few courts have considered the specific issue of whether a private right of action by physicians exists under the HCQI Act, the courts which have considered the issue have answered it in the negative.
In Goldsmith v. Harding Hospital, Inc., 762 F. Supp. 187 (S.D. Oh. 1991), the federal district court for the Southern District of Ohio concluded that there was no private right of action under the HCQI Act. The plaintiff in Goldsmith was a physician who had been suspended from the defendant hospital's psychiatric residency program. In dismissing the lawsuit following a Rule 12(b)(6) motion by defendant, the court applied the factors annunciated by the Supreme Court in Cort v. Ash, 422 U.S. 66 (1975). These include:
1: whether the plaintiff is a member of the class for whose special benefit the statute was enacted;
2: whether there is any indication of legislative intent, explicit or implicit, to create or deny a remedy;
3: whether it would be consistent with the underlying purpose of the act to imply a remedy; and
4: whether the cause of action is one traditionally relegated to state law so that it would be inappropriate to infer a cause of action solely on federal law. 442 U.S. at 78.
The reasoning behind the Goldsmith decision was recently followed by the Tenth Circuit Court of Appeals in Hancock v. Blue Cross-Blue Shield of Kansas, 21 F.3d 373 (10th Cir. 1994), when it affirmed a dismissal of a case brought by a physician in the District of Kansas on the grounds that the HCQI Act did not create a cause of action.
The facts of this case are different because Dr. Doe is not suing a former employer. Instead, Dr. Doe is suing to silence the messenger bearing bad news about his criminal record to present and possible future employers.
None of the relevant Cort v. Ash factors weighs in favor of an implied cause of action in this case. As the immunity section suggests and the weight of case law has clearly established, Congress was not trying to create a cause of action in favor of aggrieved physicians when it passed the HCQI Act. On the contrary, the HCQI Act was enacted to benefit professional review bodies and patients, not physicians. The goal of the HCQI Act was to promote public awareness of incompetent or unprofessional physicians. Implying a cause of action under these circumstances would be to encourage one of the specific concerns--- namely, allowing a doctor whose performance has been subjected to adverse action by his peers to escape the consequences of his past history via litigation-- that the HCQI Act was designed to restrict.
I also find that the HHS regulations challenged by Dr. Doe, which were promulgated pursuant to the HCQI Act, are not arbitrary, capricious, or unsupported by the statute because, as plaintiff argues, they do not provide for expunging "stale information," or because the HHS regulations condition reporting requirements to the Data Bank on the date of licensure actions, as opposed to the date of the underlying acts. See Complaint at P 92. The harm the HCQI Act sought to alleviate was that of incompetent doctors, specifically doctors who are identified by their colleagues as incompetent but "are dealt with in a way that allows them to continue to injure patients." H.R. Rep. No. 903, 99th Cong. 2d Sess. at 1 (1986). Therefore, Congress decided against including any provision for removal of information carried on the Data Bank. The HCQI Act itself at § 11132 (a) sets the "triggering date" as the date of the reporting of the incident, not the date of the incident itself, which renders plaintiff's second argument on this point untenable.
Accordingly, I find that the HHS regulations relating to the Data Bank and codified at 45 C.F.R. § 60.1 et seq. are not arbitrary, capricious or unsupported by the HCQI Act.
IV. PLAINTIFF'S CLAIMS UNDER 42 U.S.C § 1983 ARE INVALID.
A. The Statute of Limitations
The statute of limitations on civil rights claims in Pennsylvania is two years. See Wilson v. Garcia, 471 U.S. 261 (1985); Owens v. Okure, 488 U.S. 235 (1989). See also Bougher v. University of Pittsburgh, 882 F.2d 74, 78 (3d. Cir. 1989).
The Data Bank report Dr. Doe is challenging had to be filed within thirty days of the Board's reprimand order of February 13, 1992, and was filed on March 2, 1992. Dr. Doe received notice of an Adverse Action Report on March 16, 1992 and filed a dispute concerning the Data Bank report by April 8, 1992. Therefore, Dr. Doe was certainly aware of the constitutional injury he alleges by mid-March or early April of 1992. This case was filed on June 3, 1994, which was over two years after Dr. Doe's claim accrued. Therefore, I find that plaintiff's civil rights claims are barred by the statute of limitations.
Nevertheless, I will also deal with the substance of plaintiff's due process claims, which I find to be without merit.
B. Plaintiff's Due Process Rights
The right to hold specific private employment and follow a chosen profession free from unreasonable governmental interference comes from both the "liberty" and "property" concepts of the Fifth and Fourteenth Amendments. Greene v. McElroy, 360 U.S. 474, 492 (1959); Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1259 (3d Cir. 1994).
Dr. Doe alleges that his right to due process under the Fifth Amendment was violated because HHS did not allow him notice or opportunity to be heard, specifically regarding "the issue of whether the mail fraud conviction and reprimand resulting therefrom, was a reportable incident relating to his professional conduct or professional competence as required by regulation." See Plaintiff's Reply in Opposition to Federal Defendants Motion to Dismiss, at 10. In order to prevail on this claim, plaintiff must show that he has a cognizable liberty or property interest. Board of Regents v. Roth, 408 U.S. 564, 567-77 (1972). Dr. Doe attempts to do this by stating that he suffered "irretrievable injury and severe deprivations to his liberty and property interests by curtailing his ability to engage in his occupation as an Osteopathic Physician and by damaging his reputation." See Complaint at P 56.
1. Plaintiff's Liberty Interest
Dr. Doe has no liberty interest at stake in this dispute. Many cases have stated that reputation does not receive special protection under the constitution. Paul v. Davis, 424 U.S. 693, 701 (1976). Damage to reputation alone by the government is not a "liberty" or "property" interest sufficient to invoke the due process clause. Id at 701.
In Siegert v. Gilley, 500 U.S. 226 (1991) the plaintiff was a clinical psychologist who received an adverse recommendation from a government agency which resulted in plaintiff being fired from his job at an Army hospital. The Supreme Court held that plaintiff failed to establish a violation of any constitutional right. See also Randall v. United States, 30 F.3d 518 (4th Cir. 1994).
In this instance, the Data Bank was not rendering a judgment on Dr. Doe's performance, or providing prospective employers with a recommendation as to his professional capabilities. It was merely recording a criminal conviction which was a matter of public record. As the Supreme Court stated in Siegert and Paul, action which damages the reputation of a plaintiff and causes that plaintiff harm in obtaining employment does not rise to the level of a "liberty" deprivation.
2. Plaintiff's Property Interest
A plaintiff alleging a property interest in a benefit protected by due process must go beyond showing "an unsubstantiated expectation" of the benefit. Carter v. City of Philadelphia, 989 F.2d 117, 119 (3d Cir. 1993). As the Supreme Court stated in Roth, to have a property right a plaintiff must have more than "an abstract need or desire... he must, instead, have a legitimate claim of entitlement to it." 408 U.S. at 577. The Constitution does not create property interests. Id.
Dr. Doe cites the Pennsylvania Commonwealth Court case of Pennsylvania Medical Society v. Foster, 147 Pa. Commw. 528, 608 A.2d 633 (1992) as support for his position that he has a property interest in practicing his profession. In that case the plaintiff medical society was challenging the constitutionality of the physician billing and reimbursement provisions of Pennsylvania's Motor Vehicle Financial Responsibility Law. The Commonwealth Court cited a long line of Pennsylvania cases stating that the right to practice a chosen profession was a protected interest. However, the Foster court also acknowledged "the state's police power to protect the public health, safety, welfare and morals by promulgating statues which reasonably regulate occupations." 608 A.2d at 637.
Such was the case here. Plaintiff has no conceivable "property" interest in having his conviction excluded from the Data Bank. It also must be noted that plaintiff was afforded an opportunity to contest the Date Bank report with HHS, an opportunity he availed himself of and lost.
V. PLAINTIFF'S OTHER CLAIMS
Dr. Doe challenges the accuracy of the report, and claims that it is misleading and incomplete. I find no merit in these claims. The report itself reads as follows:
SECTION C: ADVERSE ACTION INFORMATION REPORTED
DATE OF ACTION: 02/13/92