Dubnow v. Wilkie

JEFFREY DUBNOW, M.D., Plaintiff, v. ROBERT WILKIE, Secretary of Veterans Affairs, U.S. Department of Veterans Affairs Defendant.

No. 19 C 2423

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

November 12, 2020

Judge Virginia M. Kendall

MEMORANDUM OPINION & ORDER

Plaintiff Dr. Jeffrey Dubnow, seeks review of the Final Order removing him from his federal service position as Chief of the Emergency Department at the Captain James A. Lovell Federal Health Care Center ("FHCC") in North Chicago, Illinois pursuant to 38 U.S.C. 7462(f)(1) and the Administrative Procedure Act, §§ 701-06. Dr. Dubnow claims the Department of Veterans Affairs ("VA") Principal Deputy Under Secretary of Health's ("PDUSH") reversal of the VA's Disciplinary Appeals Board's decision to overturn Dr. Dubnow's removal was arbitrary and capricious, an abuse of discretion, and not in accordance with the law. He further argues that the PDUSH's decision was not supported by substantial evidence and the PDUSH did not follow the proper procedures in reaching his decision. For the reasons discussed below, the Court affirms the VA's decision.

BACKGROUND

Dr. Dubnow is a board-certified Emergency Medicine physician who has practiced since 1979. Dr. Dubnow was hired by the FHCC as the Chief of the Emergency Department in October 2011. Dr. Dubnow received positive performance reviews until his removal in April 2017. AR 101-04; 109-19, 124-35.

I. Events of April 2017

On April 29, 2017, Joseph Carney, the FHCC ED's Intermediate Care Technician ("ICT"), answered a call made by ambulance staff through the VA Police Dispatch saying that a seven-month-old baby was in cardiac arrest and was on its way in a Department of Defense ambulance. AR 2138. Dr. Dubnow's experience was that cardiac arrest in infants usually resulted from trauma. Id. Because the FHCC is not equipped to handle trauma, Dr. Dubnow told ICT Carney to direct the ambulance to Lake Forest Hospital instead. Id.; AR 2143. Dr. Dubnow later testified that he believed this to be in the interest of the patient. AR2138. Neither Dr. Dubnow nor ICT Carney were told that the ambulance was already on FHCC property. Id. After the phone call ended, staff realized the ambulance was already in the ambulance bay and started preparing to accept the patient and begin treatment. Id.; AR 721. However, the ambulance did not stop, and the patient died en route to Lake Forest Hospital. AR 918-19, 1060, 2138. The VA convened an Administrative Investigative Board ("AIB") to investigate. AR 904-09. On December 18, 2017, following the investigation, FHCC Director Dr. Stephen Holt issued the documents titled Removal and Revocation of Privileges to Dr. Dubnow. AR 838-40, 909.

II. Dr. Dubnow's Appeal to the DAB

After his removal, Dr. Dubnow appealed to the Disciplinary Appeals Board ("DAB" or "the Board") under 38 U.S.C. § 7461. Dkt. 1-1 at 19; AR 2142. On January 18, 2018 (amended February 12, 2018), the Deputy Under Secretary for Health for Operations and Management for the Department of Veterans Affairs appointed a DAB to consider the appeal. AR 2142, 2182. In May 2018, the DAB decided to overturn Dr. Dubnow's removal. AR 2176. The DAB noted procedural irregularities in the AIB's investigation that Dr. Holt relied upon, including the AIB'sfailure to interview the EMS ambulance first responders, ICT Carney, and Dr. Martin, who was an eyewitness to the ambulance refusal. AR 2145-46. The DAB found Charge 1, "Inappropriate Refusal of Care and/or Diversion," Charge 4, "Failure to Provide Oversight," and Charge 5, "Failure to Meet Standard of Care," were also not sustained in whole or in part. AR 2151, 2161-66. The DAB also overturned Charge 2, "Failure to Follow JPI No. 11-2013-28," and Charge 3, "Failure to Follow VHA Directive 1101.05(2)," finding that Dr. Dubnow did not violate either section. AR 2154-60.

III. The PDUSH's Remand to the DAB and Final Decision

The Board sent its findings to Steven Lieberman, the VA's Principal Deputy Under Secretary of Health ("PDUSH"), who has the final reviewing authority within the VA. AR 2137; 38 U.S.C § 7462(d)(2)(A). The PDUSH remanded the case to the DAB, asking for further analysis as to its conclusion "that the 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." AR 2169. The PDUSH also sought additional analysis of the DAB's conclusion that "it was acceptable for the Appellant to assume the cardiac arrest was trauma related, and why an assessment on the patient was not warranted before reaching that conclusion." Id. The DAB found that Charge 1 was not sustained because the Agency did not challenge either Dr. Dubnow or Dr. Martin's assumptions regarding trauma and because the removal letter did not mention anything about a lack of hands-on analysis of the patient. AR 2172. Additionally, the DAB found that neither Dr. Dubnow nor ICT Carney were told the ambulance was already on hospital property. AR 2173. The DAB found that it did not know what portion of the JPI No. 11-2013-28 Dr. Dubnow violated, that every witness testified the ambulance never arrived and the patient was not literally turned away, and that Dr. Dubnow used his clinical judgment to re-direct the ambulance.AR 2173. Charge 3 was also not sustained because the specification did not identify which portion of the policy Dr. Dubnow violated and because the witnesses testified the ambulance never arrived. AR 2174. Charges 4 and 5 were also not sustained. Id. The DAB concluded that "the Board did not sustain any of the charges by preponderant evidence. ED physicians have been given the authority to make case-by-case decisions on ambulance diversion. There was no evidence or testimony provided to show the decision to redirect the ambulance was inappropriate or a violation of any policy or directive." Id.

In December 2018, after receiving the DAB's additional analysis, the PDUSH rejected the DAB's decision. AR 2182-83. Pursuant to 38 U.S.C § 7462(d)(2)(A), "[i]f the Secretary finds a decision of the board to be clearly contrary to the evidence . . . the Secretary may . . . reverse the decision of the board." The PDUSH stated he did not concur with the DAB's finding regarding Charge 1, "as it is clearly contrary to the evidence." AR 2182. The PDUSH found that the FHCC

[N]ot 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, you 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 your decision to divert the ambulance was not justified, and created a serious situation that negatively impacted patient care.

Id. The PDUSH found that "the egregiousness of the conduct as described in Charge 1 justifies the penalty of removal given the circumstances of this case." AR 2183. Dr. Dubnow then sought review of the PDUSH's final decision in this Court.

LEGAL STANDARD

Under 38 U.S.C. § 7462(f)(1), a VA employee appointed under 38 U.S.C. § 7401(1) may appeal to a district court a DAB decision:

In any case in which judicial review is sought under this subsection, the court shall review the record and hold unlawful and set aside any agency action, finding, or conclusion found 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). "The Court's review under this section 'directly mirrors the standards for judicial review of other administrative actions.'" See e.g. Martin v. Dep't of Veterans Affairs, 5:16-cv-05562, 2017 WL 3841895, *3 (S.D. W.Va. Sept. 1, 2017) (citing Beck v. Shinseki, No. CV 113-126, 2015 WL 1202196, at *11 (S.D. Ga. Mar. 16, 2015) (internal citations omitted); see also Pocha v. McDonald, No. CV 15-475, 2016 WL 916417, at *4 (D. Minn. Mar. 10, 2016) (stating the standard under 38 U.S.C. § 7462(f)(2) "mirrors the standards for judicial review of other administrative actions, and analogous administrative law precedents are applicable").

An agency's decision is considered arbitrary and capricious if "the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Lerner v. Shinseki, No. 3:12-CV-00565, 2013 WL 5592906, at *5 (W.D. Ky. Oct. 10, 2013) (citing Taylor v. Principi, 92 Fed. Appx. 274, 276-77 (6th Cir. 2004)). "The arbitrary and capricious standard is a highly deferential standard which presumes the validity of the agency's action ... Ultimately, the court's review of the administrative record is intended to inform it of the propriety of the agency's decision, not to enable the court to make its own decision...." Martin, 2017 WL 3841895 at *3 (citing W. Virginia Dep't of Health & Human Res.v. Sebelius, 172 F. Supp. 3d 904, 914 (S.D. W.Va. 2016) (internal citations omitted)). Additionally, an agency's decision may be overturned if it is unsupported by substantial evidence. "Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966); Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015). "The court is not to 'reweigh evidence, resolve conflicts, decide questions of credibility, or substitute [its] judgment'" for that of the Secretary. Burmester v. Berryhill, 920 F.3d 507, 510 ...