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Boggi v. Medical Review and Accrediting Council

September 15, 2009

JOSEPH O. BOGGI, PLAINTIFF,
v.
MEDICAL REVIEW AND ACCREDITING COUNCIL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

Dr. Joseph O. Boggi, D.O., brings this action under 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act ("ADA"). He seeks medical retraining from the Medical Review and Accrediting Council ("MRAC") and alleges that state actors have attacked his property right -- his medical license. (Compl. at 2.)*fn1 Before the Court are three separate motions to dismiss filed by various Defendants: (1) the motion of MRAC and Larry Downs; (2) the motion of Dr. Joseph Sokolowski; and (3) the motion of the Institute for Physician Education ("IPE"), Drs. Andrea Ciccone, Scott Manaker, Richard Hawkins, and Donald Melnick.*fn2 For the reasons that follow, the motions are granted.

I. BACKGROUND*fn3

As recounted by Dr. Boggi, in order to retrain doctors, states associate with organizations. MRAC evaluates and retrains doctors for New Jersey through the University of Medicine and Dentistry of New Jersey, a state institution. (Compl. at 2.) The IPE is an arm of the National Board of Medical Examiners responsible for developing tests and establishing standards for retraining doctors. (Compl. at 2.) Dr. Boggi tested in Philadelphia at the IPE and at MRAC. (Id.) Specifically, Dr. Boggi contracted with MRAC for testing and retraining. (Am. Compl. ¶ 1.)

A. Dr. Boggi's Medical Background

Dr. Boggi received his doctorate in osteopathy from the University of Osteopathic Medicine and Surgery in Des Moines, Iowa in 1983. (MRAC Mot. to Dismiss Ex. B [Final Opinion & Order] at 3.) He was a resident at the Walter Reed Army Medical Hospital from 1985 to 1988 and he received his certification in internal medicine in 1988. (Id.) He was initially licensed to practice medicine in Maryland in 1988. (NBME Mot. to Dismiss Ex. 2 [Summary Suspension Order] at 1.)

Dr. Boggi was first diagnosed with Attention Deficit Disorder (ADD) in 1988 and took medication for the condition. (Final Opinion & Order at 4.) In October of 1992, Dr. Boggi was diagnosed with an Adjustment Disorder and Attention Deficit Hyperactivity Disorder ("ADHD"). (Id. at 5.) He was honorably discharged from the Army in 1994, although based on an incident involving the military police, Dr. Boggi's privileges at the hospital where he was practicing were suspended and he received psychiatric evaluation and treatment. (Id. at 3-4.)

B. Suspension of Dr. Boggi's License

1. Summary suspension

On June 24, 1998, the Maryland State Board of Physician Quality Assurance (BPQA) summarily suspended Dr. Boggi's medical license. According to the written findings accompanying the summary suspension, the BPQA was required to take emergency action under Maryland law because it "received reliable information that questions the mental competency of [Boggi] to practice medicine; specifically, that [he] is displaying threatening, maladaptive behavior." (Summary Suspension Order at 1.) Additionally, the Summary Suspension Order recounts a number of interactions staff members of the BPQA had with Dr. Boggi as well as correspondence and phone calls containing "bizarre" content. (Id. at 5-7.) Dr. Boggi was examined by a psychiatrist who concluded that he "has demonstrated a pattern of behavior that physically threatens other people" and that he "lacks the ability to look at his behavior from another person's perspective and thereby does not learn from past experiences." (Id. at 7-8.) The psychiatrist, Dr. Ellen McDaniel, recommended that Dr. Boggi stop practicing medicine until he could control his behavior and that he undergo neuropsychological testing. (Id. at 8.) The BPQA determined that it had probable cause to believe that Dr. Boggi was "mentally incompetent to practice medicine, and that his continued practicing of medicine would jeopardize the health, safety and welfare of the citizens of Maryland." (Id. at 8.) Accordingly, Dr. Boggi's license was summarily suspended and a hearing was scheduled.

2. Final Opinion and Order and Appeal

Following an evidentiary hearing, an Administrative Law Judge ("ALJ") issued a proposed decision in which she concluded that Dr. Boggi's condition rendered him mentally incompetent to practice medicine but did not recommend revocation of his license. Instead, she suggested supervision of Dr. Boggi's treatment and monitoring of his practice. Both the State and Dr. Boggi filed exceptions. On April 28, 1999, Dr. Boggi and the State appeared before the BPQA for an oral hearing on the exceptions. On September 22, 1999, the BPQA issued its Final Opinion and Order, which contained extensive factual findings detailing a number of incidents involving Dr. Boggi and largely adopted the findings of facts made by the ALJ. Based on the evaluation conducted by Dr. McDaniel, the BPQA found that Dr. Boggi's ADHD resulted in numerous disruptive incidents causing co-workers and others to be intimidated by Dr. Boggi and fearful of him. (Final Opinion & Order at 19.) The BPQA found that Dr. Boggi "consistently displayed significant communication problems when dealing with people in a wide range of professional settings" which stemmed from his sense of entitlement and lack of empathy. (Id. at 19-20.) Dr. Boggi never physically injured a patient, staff member, or colleague but has "engaged in a physical confrontation, spoken abrasively, raised his voice inappropriately, destroyed property and caused others to have a justified fear of his presence. (Id. at 20.) His ADHD rendered him unable to control his behavior towards others and effectively communicate in a manner required to provide competent medical care. (Id. at 20, 24.) Furthermore, the ability to interact with and to effectively communicate with other medical personnel is an essential element of the competent practice of medicine. (Id. at 24.) The BPQA viewed Dr. Boggi's inability to competently practice medicine as a direct threat to the patient population. (Id. at 20, 30.)

As a result, the BPQA suspended Dr. Boggi's license for one year and thereafter until Dr. Boggi obtained treatment that enabled him to safely and competently practice medicine. (Id. at 34.)

The BPQA ordered Dr. Boggi to satisfy six conditions prior to having his license reinstated: (1) obtain neuropsychological testing and complete a personality inventory; (2) begin treatment with a BPQA-approved psychiatrist within thirty days of the Order suspending his license; (3) undergo at least one-year of treatment with said psychologist; (4) be re-evaluated by Dr. McDaniel after completing condition three; (5) appear before the BPQA's Case Resolution Conference to provide evidence that he is competent to safely practice medicine; and (6) provide evidence satisfactory to the BPQA that he has become competent to safely practice medicine. (Id. at 34.)

On December 13, 2001, the Maryland Court of Special Appeals affirmed the suspension of Dr. Boggi's medical license. (NBME Mot. to Dismiss Ex. 4 [Md. Appeals Decision].) The court considered, inter alia, Dr. Boggi's objection that the BPQA failed to correctly apply the ADA. The court concluded that Dr. Boggi failed to make a showing that he could perform the essential functions of his job with reasonable accommodation. (Md. Appeals Decision at 35-36.) Further, the court found that Dr. Boggi was not a "qualified individual" under the ADA because the BPQA established substantial evidence that Dr. Boggi's continued practice of medicine posed a direct threat to the health or safety of others due to his disability that reasonable accommodation could not eliminate. (Id. at 36-38.) Ultimately, the court affirmed the Final Opinion and Order of the BPQA.

C. Dr. Boggi's MRAC Testing

Dr. Boggi first contacted MRAC in November of 2005 and was eventually tested over two days in May of 2006. (Compl. at 11.) Dr. Manaker was the independent contractor for the IPE who, on those days, tested and evaluated Dr. Boggi's ability to practice medicine. (NBME Mem. of Law at 10.) Although Dr. Boggi did not formally complain about the first day of testing, he verbally, and later in writing, objected that two of three tests on the first day were "60 questions per minute," a fact that he was not informed of prior to testing. (Compl. at 11.) However, Dr. Boggi stated that "I do not worry about that so much, since, despite my ADHD, I can go that fast." (Id.) Dr. Boggi's also complained about the topics on the exam and the manner in which the test was scored. (Id. at 11-12.)

Regarding the second day of testing, Dr. Boggi contends that "I know that I did well on the second day of testing, but it was even more bizarre, and so I complained about that set of testing verbally many times that day." (Compl. at 12.) Among Dr. Boggi's complaints was that the computer used during the simulated patient care cases was exceedingly slow, although he continued with the test because "everyone has to use the same one." (Compl. at 12.) Nonetheless, Dr. Boggi was unaccustomed to using such slow machinery and the "speed of the computer changes the nature of the test tremendously." (Id.) Dr. Boggi also noted that the IPE staff complained ...


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