August 12, 2013
Rochling v. Dep. Vet. Aff’s, — F.3d —, 2013 WL 4017143 (8th Cir. 2013)
An aggrieved patient files medical malpractice suit against a hospital in which he was treated. The hospital and the patient subsequently settle the suit. Their settlement agreement states that the hospital settles the suit “for the benefit of” a physician who treated the patient. Because the patient did not sue the physician, the physician was not a party to this agreement. Pursuant to the Healthcare Quality Improvement Act of 1986 (HCQIA), the hospital reports the agreement to the National Practitioner Data Bank (NPDB). Prior to filing this report, the hospital allows the physician to provide her account of the relevant events. The physician demands a process within which she could demonstrate that her treatment of the patient was faultless, but the hospital denies this demand.
Can the physician challenge the report?
Last week, the Court of Appeals for the Eighth Circuit decided that she cannot: Rochling v. Dep. Vet. Aff’s, — F.3d —, 2013 WL 4017143 (8th Cir. 2013).
The physician’s principal claim—violation of procedural due process—appeared promising, but the Court turned it down because the physician failed to show the requisite deprivation of a constitutionally protected “life, liberty or property interest.” The physician argued that the report was analogous to a disciplinary proceeding that must comply with due process, but the Court held that “the NPDB report by itself is not a rebuke, censuring or reprimanding.” Rather, explained the Court, “the report simply means that a payment was made “for the [physician’s] benefit.”
The report could not “simply” mean that the hospital made a payment for the physician’s benefit. After all, it was filed with the NPDB pursuant to HCQIA and not with the IRS, pursuant to the tax code. This filing had only one plausible meaning: having the physician’s name on the government’s [black]list of actual and suspected malpractitioners—viewable by state licensing boards and the physician’s prospective employers (HCQIA, §11137)—might improve the quality of healthcare in our country. The contemplated improvement involves employers refusing to hire or credential the physician (Cf. Katharine A. Van Tassel, Blacklisted: The Constitutionality of the Federal System for Publishing Reports of “Bad” Doctors in the National Practitioner Data Bank, 33 Cardozo L. Rev. 2031 (2012)).
If so, the report’s filing clearly diminished the physician’s employment opportunities and earning capacity. There is no other way to see it. The physician’s employment opportunities and earning capacity may not qualify as a “property” interest, but they certainly fall under the “new property” definition (Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964)). The Court nonetheless decided that the report’s effect on the physician’s future employment does not make it a protected “property” interest. I find this decision disappointing and unsatisfactory. I also find it hard to reconcile with the Supreme Court’s reasoning in Mathews v. Eldridge, 424 U.S. 319 (1976).
Am I wrong?