Gabros v. Shore Med. Ctr.

DAVID E. GABROS, Plaintiff, v. SHORE MEDICAL CENTER, Defendant.

1:16-6135-NLH-JS

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

October 13, 2020

OPINION

APPEARANCES:

TIMOTHY J. MCILWAIN

MCILWAIN, LLC

MCILWAIN PROFESSIONAL BUILDING

2020 NEW ROAD, SUITE A

LINWOOD, NJ 08221

Attorney for Plaintiff David E. Gabros, M.D.

KEVIN J. THORNTON

COOPER LEVENSON, P.A.

1125 ATLANTIC AVENUE

ATLANTIC CITY, NJ 08401

Attorney for Defendant Shore Medical Center.

HILLMAN, District Judge

Presently before the Court is Plaintiff's motion for oral argument, and two joint motions to seal certain docket entries and the Court's June 28, 2019 Opinion. For the reasons stated below, the Court will deny the Parties' motion for oral argument as moot. The Court will deny the Parties' joint motions to seal.

BACKGROUND

This case concerns the rescinding of privileges for Plaintiff David E. Gabros, M.D., a physician at a New Jersey hospital. The facts of this case have been summarized by this Court in previous rulings.¹ Plaintiff filed a complaint against Defendant Shore Medical Center ("SMC") in March 2014. This case was dismissed in September 2016 without prejudice because Plaintiff failed to properly serve the individuals named in that matter.

Plaintiff appealed this ruling to the Third Circuit . This Court's ruling was affirmed in February 2018. In September 2016, while Plaintiff's appeal was pending, Plaintiff filed another complaint against SMC, Scott Strenger, M.D., Jeanne Rowe, M.D., and Peter Jungblut, M.D. In October 2016, Plaintiff filed his First Amended Complaint, adding Defendant Genesis Healthcare d/b/a/ Linwood Care Center. SMC answered on February 2017. In July 2017, Plaintiff and SMC stipulated to the dismissal of Defendants Strenger, Row, and Jungblut. Discovery and motion practice ensued.

In August 2018, Defendant filed its First Motion for Summary Judgment. The Court rejected this motion for being overlength. Defendant then filed a Second Motion for Summary Judgment. In September 2018, Plaintiff filed a Motion to Strike Defendant's Motion for Summary Judgment. On March 20, 2019, the Parties jointly filed a motion requesting oral argument.

The Court ruled on Plaintiff's Motion to Strike, Defendant's Motion for Summary Judgment, and the Parties' Motion for Oral argument on June 28, 2019. At that time, the Court also ordered that docket entries 86-33 and 124-1 be placed under temporary seal. The Court ordered that the Parties file a joint motion pursuant to Local Rule of Civil Procedure 5.3 addressing whether the Court's Opinion and docket entries should permanently sealed. The Parties filed two motions to seal onDecember 9, 2019. This matter has been fully briefed and is ripe for adjudication.

ANALYSIS

A. Subject Matter Jurisdiction

This Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1367.

B. Motion to Seal Standard

It is well-established that there is a "common law public right of access to judicial proceedings on records." In re Cendant Corp., 260 F.3d 183, 192 (3d Cir.) (citation omitted). Ordinarily, documents filed with the Court or utilized in connection with judicial proceedings are part of the public record with a presumptive right of public access. Leucadta v. Applied Extrusion Tech., Inc., 998 F.2d 157, 164 (3d Cir. 1993). In some instances, "the strong common law presumption of access must be balanced against the factors militating against access". Id. at 165. When a party files a motion to seal, that party must demonstrate that good cause exists for protection of the material at issue. Securimetrics, Inc. v. Iridian Techs., Inc., 2006 WL 827889, at *2 (D.N.J. Mar. 30, 2006). A party demonstrates good cause by making a "particularized showing that disclosure will cause a 'clearly defined and serious injury to the party seeking closure.'" Id. (quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994)).

In this District, Local Civil Rule 5.3 governs motions to seal or otherwise restrict public access to materials filed with the Court and in judicial proceedings. To place a docket entry under seal, the Rule requires that the motion to seal must be publicly filed and describe: "(a) the nature of the materials or proceedings at issue, (b) the legitimate private or public interests which warrant the relief sought, (c) the clearly defined and serious injury that would result if the relief sought is not granted, and (d) why a less restrictive alternative to the relief sought is not available." L.Civ.R. 5.3(c)(2). The party moving to seal must submit a proposed order that contains proposed findings of fact and conclusions of law. L.Civ.R. 5.3(c)(3).

C. Joint Motions to Seal

With the standard set out above in mind, the Court will now turn to the parties' joint motions to seal.

1. NPDB Report

The Parties seek to seal docket entry 142, a report by the National Practitioner Data Bank ("NPDB"), submitted by Defendant Shore Medical Center on June 18, 2015. This report was a result of the final adverse action taken by SMC to revoke Plaintiff's clinical privileges.

In 1986, Congress passed the Health Care Quality Improvement Act of 1986 ("HCQIA"), 42 U.S.C. § 11101, et seq.The HCQIA requires that certain information regarding malpractice payments, sanctions, and professional review actions taken with respect to medical professionals be reported to the federal government. 42 U.S.C. § 11131-7. The regulations promulgated pursuant to the HCQIA established the National Practitioner Data Bank to collect and organize information collected under the HCQIA.

The NPDB operates as a centralized clearinghouse for state licensing boards, hospitals, and other health care entities to obtain relevant background information about physicians. Hospitals are required to request information from the NPDB with respect to each physician or health care practitioner who applies for staff membership or clinical privileges. 42 U.S.C. § 11135. The NPDB makes the information it collects available to "State licensing boards, to hospitals, and to other health care entities (including health maintenance organizations) that have entered (or may be entering) in an employment or affiliation relationship with the physician or practitioner or to which the physician or practitioner has applied for clinical privileges or appointment to the medical staff." 42 U.S.C. § 11137(a).

Section 11137 also outlines the confidentiality provisions applicable to the information collected under the HCQIA. Specifically, it mandates:

Information reported under this subchapter is considered confidential and shall not be disclosed (other than to the physician or practitioner involved) except with respect to professional review activity . . . or in accordance with regulations of the Secretary promulgated pursuant to subsection (a) of this section. Nothing in this subsection shall prevent the disclosure of such information by a party which is otherwise authorized, under applicable State law, to make such disclosure. Information reported under this subchapter that is in a form that does not permit the identification of any particular health care entity, physician, other health care practitioner, or patient shall not be considered confidential.

42 U.S.C. § 11137(b)(1) (emphasis added).

As such, unless otherwise provided by state law, all information collected by the NPDB and "reported under this subchapter" is presumed confidential and is only released as specifically mandated by the HCQIA. See Medical Soc. of New Jersey v. Mottola, 320 F.Supp.2d 254, 259 (D.N.J. 2004).

The Parties contend that federal law prohibits disclosure of National Practitioner Data Bank reports. The Parties highlight that the purpose of the NPDB and its reports is to improve health care quality, protect the publ ic, and reduce health care fraud and abuse in the United States. According to the Parties, if NPDB reports were available to the public, reporting entities would lose confidence in the NPDB's confidentiality protections. The Parties argue that this lack of confidence would lead to a decline in voluntary or optional reports regarding problematic officials and would ultimatelyhinder the reliability and effectiveness of the NPDB in serving its public policy goals.

The Court has closely reviewed the documents the parties ask the Court to seal and does not find a legitimate private or public interest warranting sealing, nor a serious injury that would result from a failure to seal. While there is no doubt a generalized public benefit from a confidential reporting system allowing medical employers to share information about the qualifications of licensed medical professionals, that interest must fall away when those reports are themselves evidence in a matter pending in federal court or any court. The alternative is that medical employers and professionals may generate false or truthful information about each other material to their dispute and the potential claims of injured third parties under a regime where that information never sees the light of day.

It is hard to imagine how that benefits the public at large and begs the question why a federal court should aid in such secrecy absent clear statutory direction. What the parties really envision is a system that always shields the airing of claims of incompetency and malfeasance by medical professionals and the medical institutions that hire them. This lack of transparency and absolute immunity is as likely to cause false reports as it is to foster candor.

Nor does the relevant statute create such an absolute private world immune from outside scrutiny. It is one thing to say that information should be confidential between the parties for regulatory purposes and quite another to say that information can never be revealed when disputes arise over the content of such reports. The only law cited by the parties actually authorizes disclosure for purposes of litigation when the system breaks down as envisioned. See 45...