Last month, the U.S. Supreme Court declined to review a case challenging the sufficiency of due process protections in the Health Care Quality Improvement Act (HCQIA) and National Practitioner Data Bank (NPDB), effectively confirming that the current safeguards are constitutionally sufficient.

In Doe v. Rodgers, a surgeon brought an action against the Secretary of the U.S. Department of Health and Human Services (HHS), the NPDB, and several individual officials who administer the NPDB, alleging that the NPDB wrongfully accepted, kept, and distributed a “false and fraudulent” adverse action report which “destroyed” his career as a surgeon in the United States. In the petition for certiorari, the physician noted that a lack of due process in HCQIA and relevant regulations and sub-regulatory guidance has resulted in over-inclusive reports which unconstitutionally prevent physicians from practicing their chosen profession.  Since the case was first filed, courts have disagreed and found that the safeguards in place are sufficient.

The case dates back to 2009, when Dr. Doe mistakenly removed part of a patient’s fallopian tube during an emergency laparoscopic appendectomy. Dr. Doe agreed at the time to voluntarily suspend his surgical privileges while the hospital investigated the case, but he ultimately resigned before the investigation could be completed. The hospital submitted a report to the NPDB indicating Dr. Doe had voluntarily resigned while under investigation.

Dr. Doe sought “Secretarial Review” of the report submitted to the NPDB, but the Secretary of HHS declined the request, noting there was no basis to conclude that the report should not have been filed, or that it was not accurate, complete, timely, or relevant. Dr. Doe then filed the underlying lawsuit, alleging, among other things, that the defendants’ actions violated the Administrative Procedure Act and that HCQIA violated due process both facially and as applied.  

In 2015, the District Court for the District of Columbia granted in part and denied in part the defendant’s various motions to dismiss and motions for summary judgment. The district court rejected the surgeon’s arguments that there was no evidence of an investigation. The district court noted that, although neither HCQIA nor the resulting statutes define “investigation” for the purpose of an NPDB report, the record contained substantial evidence that an investigation was underway at the time of Dr. Doe’s resignation based on the plain meaning of the word. The district court specifically looked to several factors to conclude an investigation had commenced, including that hospital officials gathered relevant documentation of the incident, conferred with hospital executives, met with physicians involved, reported the incident to the state health department, and organized a team to conduct a root cause analysis.

The district court also rejected the surgeon’s argument that an investigation had not occurred because certain procedures were not followed pursuant to the hospital’s medical staff bylaws. The district court reasoned that neither HCQIA nor the implementing regulations require an investigation to comply with a hospital’s bylaws or policies, and that to hold otherwise would result in ad hoc reporting and inconsistencies across the country.

The district court also concluded there was no legal basis for Dr. Doe’s assertion that the right to practice medicine as his chosen profession was a “fundamental” right and any regulation of that right should be subject to strict scrutiny. The fact that practicing a chosen profession is protected by due process does not make it a fundamental right. Accordingly, any statutory regulation would be subject to rational basis review. The district court found that HCQIA’s goal of facilitating frank and effective professional peer review was rationally related to a legitimate government interest.  

The D.C. Circuit Court of Appeals affirmed without limiting or revising the district court’s opinion. Dr. Doe then sought review by the Supreme Court.

Dr. Doe’s petition for certiorari notes that in the 37 years since the enactment of HCQIA, this is the first case to reach the Supreme Court which questions the constitutionality of hospitals reporting to the NPDB. The Supreme Court’s decision to decline to review the case seems to suggest that they are content to leave it that way.

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