The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Presently pending before the Court is the Motion to Dismiss or in the Alternative for Summary Judgment (Doc. 13) of the collective Defendants. By Order of this Court dated May 14, 2012 the Motion was converted to one for summary judgment. (Doc. 46). The Motion has been fully briefed and is thus ripe for disposition. (Docs. 14, 29, 32). For the reasons fully articulated herein, we will grant the Defendants' Motion in its entirety and enter judgment as a matter of law in favor of the Defendants.
Plaintiff Joseph J. Drabick, M.D. ("Plaintiff"), initiated the above-captioned action by filing a two-count Complaint on September 1, 2010 (Doc. 1) alleging violations of the Administrative Procedure Act ("APA") and constitutional violations actionable pursuant to 42 U.S.C. § 1983 against Defendants Kathleen Sebelius ("Sebelius"), the United States Department of Health and Human Services ("HHS"), the National Practitioner Data Bank ("NPDB), the United States Army Medical Command ("MEDCOM"), Colonel Doreen M. Lounsbery ("Lounsbery"), and Lieutenant General Eric B. Shoomaker ("Shoomaker").
On January 13, 2011, after receiving extensions from the Court (Docs. 7, 9), the collective Defendants filed the instant Motion to Dismiss or for Summary Judgment. (Doc. 13). In their Motion to Dismiss, the Defendants advanced several arguments regarding both administrative exhaustion and the merits of Plaintiff's claims. (Id.). The Motion was fully briefed (Docs. 14, 29, 32), and on July 6, 2011, this Court issued a Memorandum and Order (Doc. 33) finding that Plaintiff had failed to exhaust his administrative remedies and staying the action pending Plaintiff's application to, and a final determination by, the Army Board for Correction of Military Records ("ABCMR"). (Id.). The Plaintiff applied to, and was denied relief by, the ABCMR, and on May 1, 2012, upon consideration of a Status Report (Doc. 41) filed by the Plaintiff advising the Court of the ABCMR's determination, the Court lifted the stay in this matter. (Doc. 42).
The Court thereafter elected to dispose of the instant Motion as one for summary judgment in light of the extensive administrative record and the party's reliance upon record evidence in their respective submissions. On May 14, 2012, the Court issued an Order (Doc. 46) notifying the parties pursuant to Castle v. Cohen, 840 F.2d 173 (3d Cir. 1988), that the instant Motion is deemed a Motion for Summary Judgment and providing the Defendants with an opportunity to file a statement of facts, and the Plaintiff an opportunity to file a responsive statement, pursuant to Local Rule 56.1. (Doc. 46). The Defendants timely filed a Statement of Material Facts (Doc. 47) on May 24, 2012, and the Plaintiff filed a response on June 13, 2012. (Doc. 48). Accordingly, the Motion is ripe for disposition.
Summary judgment is appropriate if the record establishes "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Initially, the moving party bears the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden by pointing to an absence of evidence supporting an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325. Once the moving party meets its burden, the burden then shifts to the non-moving party to show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is "genuine" only if there is a sufficient evidentiary basis for a reasonable jury to find for the non-moving party, and a factual dispute is "material" only if it might affect the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).
In opposing summary judgment, the non-moving party "may not rely merely on allegations of denials in its own pleadings; rather, its response must . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The non-moving party "cannot rely on unsupported allegations, but must go beyond pleadings and provide some evidence that would show that there exists a genuine issue for trial." Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). Arguments made in briefs "are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion." Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). However, the facts and all reasonable inferences drawn therefrom must be viewed in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of Educ.,442 F.3d 848, 852 (3d Cir. 2006).
Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences that a fact finder could draw therefrom. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; there must be a genuine issue of material fact to preclude summary judgment." Anderson, 477 U.S. at 247-48.
The following facts are derived from the record and viewed in the light most favorable to the Plaintiff in accordance with the standard of review applicable to a motion for summary judgment.
Plaintiff, Dr. Joseph A. Drabick ("Plaintiff"), is a medical doctor who served in the United States Army from July 15, 1980 until his retirement on June 30, 2004, at the rank of Colonel. (Doc. 47, ¶ 1). Plaintiff was assigned to the Walter Reed Army Medical Center ("WRAMC") as a staff physician in the Hematology-Oncology Clinic in June of 2000. (Id. ¶ 2). In 2002, Dr. Peter Tsaknis, a retired Army dentist, was diagnosed with Stage III colorectal cancer, and as a staff physician, Plaintiff was required to verify and approve Dr. Tsaknis' chemotherapy regimen. (Id. ¶¶ 3-4).
Captain (Dr.) Jasmine Daniels, Hematology-Oncology fellow and Dr. Tsaknis' treating physician, presented the Plaintiff with chemotherapy orders for approval on March 4, 2002. (Id. ¶ 5). The orders provided that Dr. Tsaknis was to receive two (2) types of chemotherapy: 20 mg/m2 of Leucovorin and 425 mg/m2 of Fluorouracil (5-FU). (Id. ¶ 6). The orders noted that Dr. Tsaknis' body surface area ("BSA") was 1.96 m2. (Id.).
In order to determine a particular patient's correct dosage, chemotherapy base dosages are multiplied against the patient's BSA. (Doc. 47, ¶ 7). Applying this formula, Dr. Tsaknis should have received a total of 40 mg/m2 of Leucovorin (20mg/m2 x 1.96 BSA) and 833 mg/m2 of 5-FU (425 mg/m2 x 1.96 = 833). (Id. ¶ 8). The chemotherapy order, however, contained a multiplication error which incorrectly reflected that Dr. Tsaknis was to receive a total of 980 mg/m2 of 5-FU, an amount approximately eighteen percent higher than the correct dosage. (Doc. 47, ¶ 8). Plaintiff admits that he "reviewed the orders and signed them, verifying that the orders were correct." (Id.; Doc. 48, ¶ 6). Further, he admits that the regimen that he approved "was correct regarding the dosage but contained a multiplication error applying the dosage to the patient's body surface area." (Doc. 48, ¶ 7).
The pharmacologist, Lieutenant Colonel Paula Doulaveris (("LTC Doulaveris") reviewed the orders and checked them against the appropriate regimen for Dr. Tsaknis' form of cancer. (Doc. 47, ¶ 9). LTC Doulaveris noted the multiplication error and brought it to Dr. Daniels' attention, and Dr. Daniels amended the orders to increase the dosage of 5-FU from 425 mg/m2 to 500 mg/m2, instead of reducing the total dosage from 980 mg/m2 to 833 mg/m2. (Id. ¶ 10). On March 23, 2002, approximately one week after beginning the first cycle of chemotherapy, Dr. Tsaknis reported to WRAMC "displaying various symptoms consistent with suffering from 'severe toxicity from adjunctive 5FU.'" (Id. ¶ 12). Dr. Tsaknis' condition deteriorated over the next several days and, on March 28, 2002, he progressed to multiorgan failure and died. (Id. ¶¶ 13-14). His immediate cause of death was recorded as "neutropenic enterocolitis due to [or] as a consequence of colorectal carcinoma." (Id. ¶ 14).
Shortly thereafter, WRAMC convened a Hematology-Oncology Quality Improvement ("QI") team, which examined the circumstances surrounding Dr. Tsaknis' death and concluded that the standard of care was not met in calculating and administering the appropriate chemotherapy dosage. (Id. ¶¶ 15-16). A Risk Management ("RM") team likewise found medical error due to administration of an excessive and incorrect chemotherapy dosage. (Id. ¶ 17). On December 9, 2002, the WRAMC Patient Care Assessment Committee ("PCAC") concluded that "[s]tandards of care were not met on the part of the fellow, the attending and two pharmacists." (Id. ¶ 18). ...