Dubnow v. McDonough

30 F.4th 603

Jeffrey DUBNOW, Plaintiff-Appellant,

v.Denis R. MCDONOUGH, Secretary of Veterans Affairs, Defendant-Appellee.

No. 21-1045

United States Court of Appeals, Seventh Circuit.

Argued October 26, 2021

Decided April 1, 2022

Michael David Frisch, Jamie A. Gliksberg, Attorneys, Croke Fairchild Morgan & Beres, Chicago, IL, Alan W. Nicgorski, Attorney, Hansen Reynolds Dickinson Crueger LLC, Chicago, IL, Neil Lloyd, Attorney, Arentfox Schiff LLP, Chicago, IL, for Plaintiff-Appellant.

Alex H. Hartzler, Attorney, Office of the United States Attorney, Chicago, IL, for Defendant-Appellee.

Before Flaum, St. Eve, and Kirsch, Circuit Judges.

Flaum, Circuit Judge.

This tragic case arises from the death of a seven-month-old infant. In 2017, Dr. Jeffrey Dubnow, an emergency room physician at the Captain James A. Lovell Federal Health Care Center (FHCC) in North Chicago, Illinois, was removed from his position as Chief of the Emergency Department because he decided to divert the ambulance transporting the infant to a better-equipped hospital nearby. After the child was pronounced dead upon arriving at the other hospital, the FHCC—a United States Department of Veterans Affairs (VA) hospital—initiated an investigation into Dubnow's diversion decision. This investigation eventually resulted in his removal. Dubnow appealed this decision to a review board, which concluded that none of the grounds for his removal were supported. The agency's final reviewing authority, however, reversed the review board's decision, finding it to be "clearly contrary to the evidence." Dubnow sought judicial review of this final agency action from the district court, which affirmed the VA's removal decision. Dubnow now appeals the district court's decision.

Because the VA failed to properly apply the deferential "clearly contrary to the evidence" standard when reviewing the board's decision to overturn Dubnow's removal, we hold that the VA's decision was arbitrary and capricious and accordingly vacate the decision and remand this case for further proceedings by the agency.

I. Background

A. Factual Background

Dubnow is a board-certified emergency medicine physician who has practiced for over forty years. Beginning in October 2011, he served as the Chief of the Emergency Department at the FHCC in North Chicago, Illinois. The FHCC is a joint venture between the VA and the Department of Defense, providing medical services to veterans as well as active-duty members of the military and their families.

Dubnow received positive performance reviews during his tenure at the FHCC until he was removed from his position due to events that took place on April 29, 2017. At around 2:00 PM that afternoon, Joseph Carney, a technician in the Emergency Department, answered a call from the VA Police Dispatch. The dispatcher relayed that an ambulance was en route to the hospital from military base housing with a seven-month-old infant in full cardiorespiratory arrest. Carney spoke only to the dispatcher and was unable to communicate directly with the ambulance crew treating the child.

Carney conferred with Dubnow and another physician on duty, Dr. James Martin. Based on the limited information Carney relayed, Dubnow concluded that the most likely cause of the infant's arrest was trauma. Concluding that the FHCC's Emergency Department was ill-equipped to handle pediatric trauma cases, Dubnow told Carney to direct the ambulance to nearby Lake Forest Hospital instead. Lake Forest Hospital, located a few minutes away from the FHCC, has a Level-II trauma center and is staffed with pediatric specialists. Carney relayed Dubnow's instruction that the ambulance proceed directly to Lake Forest Hospital, but moments later (and as soon as the call had ended), noticed on a video monitor that the ambulance had already arrived at the FHCC's ambulance bay. Seeing this, Dubnow and his staff prepared to receive and treat the child. The ambulance crew, however, had already received Dubnow's relayed instructions and immediately departed for Lake Forest Hospital, leaving the FHCC without any way for its staff to re-initiate communications. The child was unable to be resuscitated en route or at Lake Forest Hospital and was pronounced dead at 2:46 PM.

B. Procedural Background

Following the above-recounted incident, the VA initiated an investigation by an Administrative Investigative Board (AIB). As a result of this investigation, the FHCC's Director, Dr. Stephen Holt, terminated Dubnow, effective December 24, 2017. Five "charges" (three of which related to the incident on April 29, 2017, and two of which related to other conduct) constituted the basis of the termination decision.

Dubnow properly appealed his removal under 38 U.S.C. § 7461(b)(1), and the VA's Deputy Under Secretary for Health for Operations and Management appointed a Disciplinary Appeals Board (DAB) comprised of three senior VA physicians to consider the appeal, see 38 U.S.C. § 7464(a). The DAB conducted a three-day hearing during which it heard testimony from thirteen witnesses. At the conclusion of the hearing, the DAB issued a written decision finding that none of the five charges against Dubnow were supported and recommending that Dubnow's removal be overturned.

In its decision, the DAB discussed a number of reasons for its finding that the AIB's decision was unsupported: that Lake Forest Hospital was only a few minutes away; that the ambulance crew was capable of providing the appropriate immediate care for resuscitation during transport; that the AIB's investigation forming the basis of the removal decision was defective in that it did not include interviews of or testimony from key witnesses to the April 29 events (including Dr. Martin, Carney, or the ambulance crew); that the nature of the communications between the Emergency Department staff and the ambulance crew was "not conducive" to a meaningful discussion of the patient's state; that Dubnow's intent was to transport the infant to the best facility as quickly as possible; that the decision to divert the ambulance met the community standard of care; that there was no information the ambulance crew could have provided the Emergency Department staff that would change the conclusion that Lake Forest Hospital was better equipped to treat the child; and that although the FHCC had equipment and staff that could have treated the patient, none of them were "battle-tested" as there had been no pediatric cases requiring advanced life support of any kind since Dubnow began his tenure there nearly six years earlier.

The DAB sent its findings to Steven Lieberman, the VA's Principal Deputy Under Secretary of Health (PDUSH) and the agency's final reviewing authority. See 38 U.S.C. § 7462(d)(4). The PDUSH remanded the case to the DAB, requesting further explanations as to why "diversion of the patient was acceptable, focusing on the fact that a fully trained, Board Certified ER physician should have been able to provide care to an infant," and why it was acceptable for Dubnow to conclude that the child's cardiac arrest was related to trauma without any hands-on assessment of the child. The DAB addressed these requests and provided further analysis, but it did not alter its conclusions that none of the charges should be sustained and that removal was unwarranted.

Pursuant to his authority under 38 U.S.C. § 7462(d)(2), the PDUSH reversed the DAB's decision only on Charge One ("Inappropriate Refusal of Care and/or Diversion"), finding it to be "clearly contrary to the evidence." The entirety of the PDUSH's explanation reads:

The [FHCC] not only serves Veterans but also family members housed at the military base. As such, the FHCC is staffed and equipped to handle pediatric cases, and equipment necessary to handle a pediatric resuscitation was available. Additionally, [Dubnow] and other staff members on duty that day were Pediatric Advanced Life Support (PALS) certified, and as such, there was no need to divert the ambulance to another facility. The evidence shows [Dubnow's] decision to divert the ambulance was not justified, and created a serious situation that negatively impacted patient care.... I find the egregiousness of the conduct as described in Charge One justifies the penalty of removal given the circumstances of this case.

Accordingly, the PDUSH reinstated Dubnow's removal, now based solely on Charge One.

Dubnow sought review of the PDUSH's decision in the Northern District of Illinois, challenging it as arbitrary and capricious, an abuse of discretion, not in accordance with the law, unsupported by substantial evidence, and not conducted according to the required procedures. The court affirmed the VA's decision, essentially because it found there to be an articulated, rational basis for it, which, the court held, sufficed under an arbitrary and capricious standard of review.

Because the PDUSH rejected only the DAB's findings as to Charge One (diversion of the ambulance), that is the only charge at issue on appeal. Before this Court, Dubnow now argues that the PDUSH's decision was arbitrary and capricious because it did not properly apply the "clearly contrary to the evidence" standard and because it did not evaluate his conduct against the community standard of medical care.

II. Discussion

Because the PDUSH's decision was the final decision of the VA in this action, we review that decision directly, with no deference to the district court's assessment. See Minnick v. Colvin , 775 F.3d 929, 935 (7th Cir. 2015). When reviewing the PDUSH's decision, we must reverse if we find it to be: "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) obtained without procedures required by law, rule, or regulation having been followed; or (C) unsupported by substantial evidence." 38 U.S.C. § 7462(f)(2).

Importantly, the PDUSH himself was required by statute to take a deferential posture in his review of the DAB's decision. The PDUSH is only permitted to...