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DOE v. UNITED STATES HHS

December 29, 1994

DR. JOHN DOE, Plaintiff,
v.
UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.



The opinion of the court was delivered by: ROBERT F. KELLY

 R.F. KELLY, J.

 DECEMBER 29, 1994

 Plaintiff is an anonymous doctor of osteopathy, who filed this case identifying himself only as Dr. John Doe ("Dr. Doe"). In 1986, Dr. Doe pled guilty to mail fraud. In February 1992, after a five-year suspended sentence, Dr. Doe was fined and given a permanent reprimand by Pennsylvania's State Board of Osteopathic Medicine ("the Board"). Shortly after the disciplinary order against Dr. Doe took effect, the Board reported Dr. Doe's reprimand to the National Practitioner Data Bank ("the Data Bank"). Dr. Doe challenged the report administratively within the United States Department of Health and Human Services ("HHS"), which administers the Data Bank. Two years later, before the Secretary of HHS had rendered a final decision on his challenge, Dr. Doe filed this lawsuit.

 Dr. Doe is seeking declaratory relief pursuant to the Health Care Quality Improvement Act of 1986 ("the HCQI Act"), 42 U.S.C. § 11101 et seq., certain HHS regulations pertaining to the Data Bank, *fn1" and the Civil Rights Act, 42 U.S.C. § 1983, against the Board and seven individual members of the Board ("the Commonwealth defendants"). He is also seeking declaratory and injunctive relief against HHS and its Secretary, Donna E. Shalala, ("the Federal defendants") under the above-mentioned provisions, the Privacy Act, 5 U.S.C § 552 (a), and the Administrative Procedures Act, 5 U.S.C. § 701 et seq..

 The basis of Dr. Doe's case is that the information about Dr. Doe's criminal record which was transmitted to and disseminated by the Data Bank was "misleading and grossly unfair" and has caused Dr. Doe "severe and irreparable harm to his career as a physician." See Plaintiff's Brief in Opposition to Federal Defendants' Motions to Dismiss at 4-5. Dr. Doe states that Blue Cross and Blue Shield have revoked his prior acceptance into the Greater Philadelphia Provider network, which may cost him 50% of his patients. See Complaint at P 57. The Data Bank, Dr. Doe contends, "has become a "Black List" for physicians and an excuse for HMO's to deny physicians participation despite their credentials." See Plaintiff's Brief in Opposition to Federal Defendants' Motion to Dismiss at 9.

 Both the Commonwealth defendants and the Federal defendants have filed motions to dismiss pursuant to Rule 12 (b) (1) and (6). For the reasons set forth below, I am granting defendants' motions to dismiss.

 I. FACTUAL BACKGROUND

 Dr. Doe's mail fraud conviction came about as a result of an incident which took place in 1982, when Dr. Doe, who was practicing osteopathy in Philadelphia, was approached by an undercover United States Postal Inspector. The six-count federal indictment against Dr. Doe filed in 1986 alleged that Dr. Doe collaborated with the undercover inspector to fabricate a fraudulent medical claim in connection with a fictitious automobile accident. Dr. Doe pled guilty to one count of mail fraud and received a five-year suspended sentence from United States District Judge Clifford Scott Green. He was also ordered to perform 2,000 hours of community service, pay a fine of $ 1,000 and make restitution in the amount of $ 240.

 In 1991, an Order to Show Cause was entered by the Board, which directed Dr. Doe to show cause why the Board should not revoke, suspend or otherwise restrict his license to practice osteopathy, and impose a civil penalty of up to $ 1000 for each violation of the Osteopathic Medical Practice Act, in light of his 1986 guilty plea. A Consent Agreement followed between the Board and Dr. Doe, in which Dr. Doe acknowledged his guilty plea and also stated that:

 
[Dr. Doe] admits that his license to practice osteopathic medicine and surgery within the Commonwealth of Pennsylvania is subject to disciplinary action ..., being convicted of a crime involving moral turpitude, and, in lieu of formal administrative hearing at which respondent would present mitigation evidence, consents to the issuance by the Board of the following Order:
 
a. Respondent shall be formally reprimanded.
 
b. Respondent shall pay a civil penalty of $ 1,000.

 See Exhibit 3 to Federal Defendants' Motion to Dismiss at P 8.

 Pursuant to the Consent Order, the Board entered an Order on February 13, 1992 which stated that Dr. Doe was in violation of Section 15(a)(4) of the Osteopathic Medical Practice Act. The Order formally reprimanded Dr. Doe, made the reprimand a permanent part of Dr. Doe's record, and imposed a $ 1,000 civil penalty.

 On March 2, 1992, the Board reported Dr. Doe's reprimand to the Data Bank. Dr. Doe received a notice of an Adverse Action Report to the Data Bank on March 16, 1992, and filed a dispute with the Data Bank on April 8, 1992. On May 5, 1994, Dr. Doe requested the Secretary of HHS to review his dispute, as provided by 45 C.F.R. 60.14 (c) (2). On June 3, 1994, before the Secretary issued a final decision, Dr. Doe filed this complaint. Although the Secretary subsequently denied Dr. Doe's request on August 25, 1994, *fn2" Dr. Doe was given an opportunity to submit a statement of 600 characters about his disagreement to the Data Bank for inclusion in his report.

 II. THE HEALTH CARE QUALITY IMPROVEMENT ACT

 The HCQI Act was enacted to improve the quality of medical care and to "restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the previous damaging or incompetent performance." 42 U.S.C. § 11101. A national reporting system was established in order to "follow bad doctors from place to place." Imperial v. Suburban Hospital Association, Inc., 37 F.3d 1026, 1028 (4th Cir. 1994), quoting H.R. Rep. No. 903, 99th Cong. 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. at 6385. See also Bryan v. James E. Holmes Regional Medical Center, 33 F.3d 1318 (11th Cir. 1994).

 One means of achieving this end is the reporting of adverse licensure actions undertaken by state medical boards. The state boards are required to report any disciplinary action

 
... which revokes or suspends (or otherwise restricts)
 
a physician's license, or censures, reprimands or places on probation a physician, for reasons relating to the physician's professional competence or ...

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