Was the the VA responsible for the Navy Yard Shooting? VA recently treated Navy Yard shooter for mental illness

Was the the VA responsible for the Navy Yard Shooting? Only time will tell. Initial reports about the VA’s treatment of Aaron Alexis are inconsistent and lack details. Some like this report from USA indicate that Alexis received treatment from the VA, others indicate that he attempted to obtain treatment from the VA.

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Navy Yard shooter recently treated for mental illness.

WASHINGTON — The civilian contractor who killed 12 people in Monday’s assault at the Navy Yard sought assistance for mental illness from the Department of Veteran Affairs as recently as a month ago, a federal law enforcement official said Tuesday.

Aaron Alexis, a former Navy reservist who was killed by police responding to the massacre, reported symptoms of paranoia including hearing voices, said the official who is not authorized to comment publicly.

It was not believed that he was ever declared mentally ill by a court. Such a finding would have prohibited him from purchasing a weapon.

The official said the 34-year-old suspected shooter paid about $540 to buy a 12-gauge shotgun and ammunition in recent days at a gun store in Virginia and took them to the Navy Yard Monday shortly before authorities believe he carried out the assault.

The official said that investigators are just beginning to analyze Alexis’ possessions to determine if it might reveal any motive for the slayings.

In a newly revised sequence of events, federal investigators believe Alexis cleared a security checkpoint with his contractor ID and carried the unassembled weapon into Building 197 at the Naval Sea Systems Command headquarters. The official said that investigators now believe that he stopped in a men’s room where he assembled the weapon and proceeded to a site on the third or fourth floor of the building that overlooked an interior atrium.

It is believed, the official said, that Alexis began firing indiscriminately on the people below with the law enforcement-style shotgun. After firing several rounds, the official said, Alexis ran down a flight of stairs where he confronted and shot a security officer.

It is believed that Alexis took the officer’s handgun and returned to the overlook where he continued to shoot. At some point, the official said, Alexis again left the overlook and confronted a victim described as a maintenance person or building staffer. Alexis allegedly shot that person and returned one last time to the overlook where he was ultimately killed in a confrontation with police.

“It didn’t appear that he had any plan for escape,” the official said.

Contrary to earlier reports provided by law enforcement officials, Alexis was not believed to be in possession of an AR-15 rifle.

“No one believes he was looking for anybody in particular,” the official said.

A witness, Rick Mason, a program management analyst, said the gunman was aiming down at people in the building’s cafeteria on the first floor.

Patricia Ward, a logistics management specialist, said she was in the cafeteria. “I heard three shots — pow, pow, pow. Thirty seconds later I heard four more shots.”

Then panic, as people tried to get out of the cafeteria. “A lot of people were just panicking. There were no screams or anything because we were in shock.”

The federal law enforcement official said it was believed earlier that Alexis may have shot his way into the building because of the location of two victims just outside the building. But it is now believed the victims may have moved there from another location, supporting the theory that Alexis walked into the building without incident and assembled the shotgun inside.

Veteran whose records were missing sues Dayton VA | www.springfieldnewssun.com

Veteran whose records were missing sues Dayton VA | www.springfieldnewssun.com.

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Posted: 12:05 a.m. Sunday, Sept. 15, 2013

Veteran whose records were missing sues Dayton VA

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By Barrie Barber

Staff Writer

DAYTON — A Centerville man whose Department of Veterans Affairs medical records were discovered in the attic of a former VA employee’s home has filed a federal lawsuit against the Dayton VA Medical Center alleging violation of his privacy as a patient, court records show.

Angelo B. Arnold, 52, filed the lawsuit against the Dayton VA and the VA on behalf of himself, his wife, Zandra L. Arnold, and 15 unnamed “John” and “Jane Does” — veterans whose files also were “wrongly handled” and reportedly found in a box in a Centerville home, court documents said.

The lawsuit seeks unspecified monetary damages.

The house once belonged to Roy Beets, a former VA registered nurse who died in 2011, court records said. The medical records and additional confidential information were discovered by a subsequent home owner in May 2012. They were turned over to the Centerville Police Department and returned to the VA, court documents said.

Arnold, a former Marine, received a medical discharge in 1979 when a barrel containing heavy road construction debris was dropped and fell on him at Camp Pendleton, Calif. He said not having the records available for years led to repeated denials of an upgrade in VA service-connected disability compensation claims. The lack of income led him to file for bankruptcy more than a decade ago, he said. He’s called on congressional leaders to launch hearings on why the records went missing and worried about other veterans across the country facing the same dilemma.

“Had they not found those file folders, I probably would have been homeless because I had an eviction notice,” he said.

U.S. District Judge Thomas M. Rose, meanwhile, struck down a request from Arnold to disclose the identities of the other veterans whose records were recovered. The case is in the U.S. District Court Southern District of Ohio-Western Division in Dayton with a May 2015 scheduled trial date.

Malpractice Payouts to U.S. Veterans Reach 12-Year High – Businessweek

Malpractice Payouts to U.S. Veterans Reach 12-Year High – Businessweek.

Christopher Ellison went to a veterans medical center in Philadelphia to get eight teeth extracted in 2007. What should have been a routine dentist visit left him permanently incapacitated.

The $17.5 million Ellison and his family received in a malpractice judgment against the Department of Veterans Affairs was the largest against the agency in a dozen years — and one of more than 400 payments the U.S. government made last year to resolve VA malpractice claims, according to agency records obtained through a Freedom of Information Act request. The total cost came to $91.7 million, also the highest sum in at least 12 years.

The cases against the VA have included missed diagnoses, delayed treatment and procedures performed on wrong body parts. U.S. lawmakers and veterans’ advocates say they reflect deep flaws in the agency’s health-care system even as the department tends to more former troops, including those who fought in Iraq and Afghanistan.

“The rapid rise in malpractice judgments against VA mirrors the emerging pattern of preventable veteran deaths and other patient safety issues at VA hospitals,” Representative Jeff Miller, a Florida Republican and chairman of the House veterans committee, said in an e-mailed statement. “What’s missing from the equation is not money or manpower — it’s accountability.”

‘Not Warned’

Miller’s committee held a hearing in Pittsburgh today to probe lapses that include a Legionnaires’ disease outbreak at a VA hospital that killed at least five veterans and also led to malpractice claims. The VA’s inspector general is conducting a criminal investigation into the outbreak, which involved bacteria in the hospital system’s water, Robert Petzel, the department’s undersecretary for health, said during the hearing.

Family members of veterans who died after being exposed to the bacteria said the VA didn’t immediately let relatives know there was a potential health problem.

“For sixteen days my father was allowed to shower and drink the water without any warning,” said Robert Nicklas, whose father, William, a Navy veteran, died last year after the Pittsburgh VA outbreak. “Why were we not warned?”

More Patients

More veterans are taking advantage of VA medical care, including those requiring more complex treatment. As many as 1.2 million additional soldiers are due to become veterans in the next four years. Some of the soldiers from the wars in Iraq and Afghanistan are suffering post-traumatic stress disorder while others are living with injuries that would have been fatal in World War II or the Vietnam War.

The age of recent veterans may be a contributing factor in the rise of claims payments, said W. Robb Graham, an attorney in Cherry Hill, New Jersey, who has represented former troops filing claims against the agency. Younger claimants tend to get larger malpractice payouts, often tied to how long victims will suffer, he said.

The median age range of veterans who served after the Sept. 11, 2001, terror attacks in New York and Washington was 25 to 34 years old, according to a 2011 Labor Department study. That’s compared to veterans who served during the World War II, Korean War and Vietnam eras, whose median age range was 65 and older, the study said.

Higher Payments

“If the VA cuts off the wrong leg of a veteran who is 70 years old and his life expectancy is 75, he’s entitled to five years of damages,” Graham said in a phone interview. “If they cut off the wrong leg of a veteran who is 25, you’re now dealing with someone who is entitled to 50 years of damages.”

The department has 152 hospitals and about 19,000 doctors. Last year, the VA tended to 5.6 million veterans, a 32 percent increase from fiscal 2002, according to agency data.

“It’s the largest health-care system in the U.S., and they do an incredible amount of good work,” said Jerry Manar, deputy director of national veterans service at the Kansas City, Missouri-based Veterans of Foreign Wars. “However, there are so many more things they could do in terms of oversight that they don’t appear to be doing now. As a consequence, sometimes you wind up with poor results that were avoidable.”

The department is “deeply committed to providing the quality care and benefits our nation’s veterans have earned and deserve,” Gina Jackson, a VA spokeswoman, said in an e-mail. “If employee misconduct or failure to meet performance standards is found to have been a factor, VA will take appropriate corrective action immediately.”

Taxpayers’ Bill

The 2012 malpractice payments stemmed from both court judgments and administration settlements. The payouts, made by the U.S. Treasury’s Judgment Fund, rose 28 percent last year from about $72 million in 2011, the VA records showed. Taxpayers have spent at least $700 million to resolve claims filed against the veterans agency since 2001, according to the data.

Many valid VA malpractice claims never get paid, said attorney Graham, who served as a judge advocate general in the Navy in the 1980s. Some are rejected because paperwork isn’t filed properly, he said.

“My strong belief is a lot of lawyers don’t know how to sue the VA,” he said.

Some law firms aren’t interested in representing people suing the federal government because of laws that limit attorney fees to 25 percent of malpractice awards, Graham said.

‘An Alarming Pattern’

In a May letter, Representative Miller asked President Barack Obama to help address “an alarming pattern of serious and significant patient care issues” at VA medical facilities.

The House panel is reviewing the Legionnaires’ outbreak in Pennsylvania, and the department’s handling of two overdose deaths and two suicides at an Atlanta veterans hospital. Also under scrutiny are poor sterilization procedures and possible patient exposure to infectious diseases such as HIV at VA locations.

“We are not here as part of a witch-hunt, to make VA look bad or to score political points,” Miller said during the hearing. “We simply want to ensure that veterans across the country are receiving the care and benefits they have earned.”

The agency isn’t holding employees, especially executives, accountable for preventable deaths, Miller said. Department officials also gave bonuses to doctors even if they practiced without a license or left residents unsupervised during surgery, according to a Government Accountability Office report last month.

VA Bonuses

The recipients of $150 million in bonuses to VA health-care providers in fiscal 2011 included a radiologist unable to read a mammogram and an emergency-room doctor who refused to see patients, the report found.

Miller has said the VA employees should be punished — not rewarded — for their incompetence.

The number of malpractice claims filed with the VA has remained at 1,544 for the past two years, said Jackson, the agency spokeswoman. The leveling off came after a 33 percent spike in cases to 1,670 between 2010 and 2005, according to an October 2011 GAO report.

The VA’s malpractice payment rates may be similar to national levels, said Anupam B. Jena, an assistant professor at Harvard Medical School and physician at Massachusetts General Hospital.

Ellison’s Case

Less than 25 percent of the claims filed against the veterans agency result in payment, according to the VA. About 20 percent of malpractice claims filed with the largest insurer of physicians between 1991 and 2005 resulted in a payment, according to a 2011 study published in the New England Journal of Medicine, said Jena, who worked on the report.

Last year’s “noticeable increase” in medical malpractice payments was partly due to an “exceptionally large” $17.5 million court judgment, Jackson said in an e-mail. Such payments are “highly variable from year to year,” she said.

That record judgment went to Ellison, who was honorably discharged from the Marines in 2001. He was a 49-year-old electronics technician from Bridgeport, Pennsylvania, in 2007 when he visited the dentist to have eight teeth extracted because of tooth decay and gum disease.

During the procedure at a VA facility in Philadelphia, Ellison’s blood pressure dropped several times to “unusually low” levels, his attorney, Shanin Specter, a partner at Kline & Specter P.C., a law firm in the city, said during a 2011 trial.

‘Catastrophic’ Stroke

Ellison wasn’t sent to the emergency room, and the dentist continued with the extractions, said Specter, son of Arlen Specter, the former senator from Pennsylvania who served as a Republican for more than 28 years and became a Democrat during his last 20 months in office. Arlen Specter died last year.

Ellison had a “catastrophic” stroke while driving his car shortly after leaving the dentist office, Specter said.

The government argued that the veteran’s existing health problems caused the stroke, not the care he received at the VA. Ellison had a history of smoking, diabetes, hypertension and many other stroke risk factors, Thomas Johnson, an assistant U.S. attorney, said during the 2011 trial in U.S. District Court in Philadelphia.

After the stroke, Ellison was left with limited vocabulary, “severe and pervasive deficits in all mental abilities,” and “negative personality changes,” according to court documents.

“He wound up being totally incapacitated, requiring 24-hour-a-day care,” Specter said. “This is about as devastating an injury as a person can have, and that’s what the award reflects.”

To contact the reporter on this story: Kathleen Miller in Washington at Kmiller01@bloomberg.net

To contact the editor responsible for this story: Stephanie Stoughton at sstoughton@bloomberg.net

Palo Alto, California, VAMC Nurse Indicted for Drug Diversion

 Palo Alto, California, VAMC Nurse Indicted for Drug Diversion

A former Palo Alto, CA, VAMC registered nurse was indicted for theft of Government
property and obtaining a controlled substance by fraud. An OIG investigation revealed
that the defendant diverted approximately 1,200 syringes of hydromorphone by taking
the doses that she claimed to have given to patients, logging in under the profiles of
other nurses, or initiating false wasting entries under both her profile and those of the
other nurses.

VA’s reputation for health care takes a thrashing – The Washington Post

VA’s reputation for health care takes a thrashing – The Washington Post.

The Department of Veterans Affairs’s reputation for providing good health care can’t stand many more thrashings like the one it took at a congressional hearing this week.

The House Committee on Veterans’ Affairs met in Pittsburgh on Monday to hear testimony about problems with health care at agency facilities in that city and others.

“What you’re about to hear may be painful,” Chairman Jeff Miller (R-Fla.) warned the audience as the hearing, which can be viewed online, began.

It was so painful that the first witness had trouble getting through her statement.

Brandie Petit spoke through sobs about her brother Joseph, who injured his knees during parachute training as a U.S. Army Ranger. After he had sought the VA’s help for year, the agency finally said “the problem was in his head and sent him home with meds for his head, not his knees,” she told the panel.

At one point, Joseph, who suffered hallucinations, was forced to leave a VA facility, according to Petit, because he didn’t have an appointment.

“The VA police physically removed Joseph and put a standing order into place to arrest him if he showed up again without an appointment,” his sister said. “I’m outraged at his treatment that day.”

Joseph committed suicide in the Atlanta VA Medical Center in Decatur, Ga., in November, “locked in a hospital bathroom dead in his wheelchair, a plastic trash bag tied over his head with a blue cord around his neck,” reported the Atlanta Journal-Constitution.

His case calls to mind my colleague Steve Vogel’s story about Daniel Somers, once a Humvee turret gunner in Iraq. He became so frustrated with his attempts to get VA medical and mental health treatment that he felt the government had “turned around and abandoned me.”

He wrote those words not long before he shot himself in the head on a Phoenix street in July. The note to his family said he was “too trapped in a war to be at peace, too damaged to be at war.”

The VA failed him, as it has too many others.

It must do better.

“We need to make sure you’re getting the veterans’ health care you’ve been promised,” President Obama told the Disabled American Veterans convention last month. “We also need to keep improving mental health services, because we’ve got to end this epidemic of suicide among our veterans and troops.”

When it was time for VA officials to speak at the Pittsburgh hearing, Robert A. Petzel, undersecretary for health, turned toward Petit and others who felt victimized by the VA to “offer my absolutely sincerest condolences and sympathy and empathy.” He said he found their testimony “deeply compelling and very upsetting. I’m saddened by these stories of loss.”

Compounding the loss of Joseph Petit, the VA had previously upset Miller and other members of Congress by not informing them of Petit’s death when they visited the Atlanta facility in May to investigate inspector general reports about hospital mismanagement and patient deaths, including two other suicides.

In addition to the Georgia cases, Miller also complained that:

●VA officials in Pittsburgh knew of an outbreak of Legionnaires’ disease, “but they kept it secret for more than a year.”

●VA staff in Buffalo potentially exposed patients to hepatitis and HIV by reusing disposable insulin injection pens. “At least 18 veteran patients have tested positive for hepatitis so far.”

●VA workers, patients and family members had “a series of allegations” regarding “poor care” at the Dallas VA Medical Center.

●Employee whistleblowers at the VA medical center in Jackson, Miss., reported “poor sterilization procedures, understaffing and misdiagnoses” to the Office of Special Counsel, an independent federal watchdog.

After the hearing, Petzel said that “when patient safety incidents occur at [the Veterans Health Administration], we are committed to identifying, mitigating, and preventing additional patient safety risks within the VA health-care system.”

In response to problems at individual hospitals, Petzel said new management in Jackson is “making significant improvements;” VA staff discovered the insulin pen problem in Buffalo, and that “triggered a national change in how our system manages the use of insulin pens;” the VA is “extensively monitoring” mental health services in Atlanta, where a new director of the medical center “is committed to restoring trust with the veterans of Atlanta;” and lessons learned in Pittsburgh are being employed “at all VA medical centers throughout the nation.” He reserved comment on the Dallas VA until a task force report is reviewed.

Also under review by the VA’s Central Office is the Presidential Distinguished Rank Award to Michael Moreland, director of a network of VA health facilities in Pennsylvania, West Virginia, Delaware, New Jersey, New York and Ohio.

Miller complained that Moreland accepted the $63,000 award even though the agency’s inspector general reported that the Pittsburgh response to the Legionnaires’ disease outbreak was, in Miller’s words, “plagued by persistent mismanagement.”

Petzel told the committee he would not ask Moreland to return the award money, which reflected work over a “lifetime of service to America’s veterans.”

Moreland, who was sitting next to Petzel, acknowledged “the timing of it [his award] was very bad.”

The hearing wasn’t completely critical of the VA.

Miller said that “the vast majority of the department’s more than 300,000 employees are dedicated and hardworking, and many veterans are satisfied with the medical care they receive from VA.”

But he and others sharply doubted the ability of the department’s leadership to avoid “heartbreaking situations” like those reported to the committee.

“By now,” he said, “it’s abundantly clear to most people that a culture change at VA is in order.”

8TH Circuit case explaining how the VA reports doctors who commit medical malpractice to the National Practitioners Data Bank

dataBankLogo
Interesting  8th Circuit Court of Appeals case explaining  how the VA reports doctors who commit medical malpractice to the National Practitioners Data Bank. Particularly interesting to see how the death of  a veteran on September 7, 2000 at the Little Rock VA can be the subject of  a court opinion on August  8, 2013

 

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-2828

___________________________

Fedja Rochling, M.D.

lllllllllllllllllllll Plaintiff – Appellant

v.

Department of Veterans Affairs; Eric K. Shinseki, in his official capacity as the

Secretary for the Department of Veterans Affairs; Department of Health and

Human Services; Kathleen Sebelius, in her official capacity as the Secretary for

the Department of Health and Human Services

lllllllllllllllllllll Defendants – Appellees

____________

Appeal from United States District Court

for the District of Nebraska – Omaha

____________

Submitted: June 11, 2013

Filed: August 8, 2013

____________

Before COLLOTON, GRUENDER, and BENTON, Circuit Judges.

____________

BENTON, Circuit Judge.

Following a patient’s death at a Veterans Affairs hospital, the family sued the VA for medical malpractice. The VA settled with the family. After reviewing the case, the VA determined that the settlement was “for the benefit of” Dr. Fedja A. Rochling, M.D. This finding required a report to the National Practitioner Data Bank (NPDB). Following his administrative appeals, Rochling sued the VA alleging dueprocess and Administrative Procedure Act violations. The district court1 dismissed the due-process counts for failure to state a claim. The court then denied Rochling’s request to supplement the record with additional discovery.

The district court granted summary judgment to the VA on the APA claims. Rochling appeals these three rulings. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

I. In August 2000, a patient with significant liver problems was treated at the VA hospital in Muskogee, Oklahoma. On August 21, he underwent a laparoscopic cholecystectomy and liver biopsy. Dr. Richard R. Jesudass unsuccessfully attempted an endoscopic retrograde cholangiopancreatogram (ERCP). Dr. Jesudass called the VA hospital in Little Rock to alert them to the patient’s upcoming transfer and to recommend a second ERCP.

The patient was transferred to Little Rock on August 31. Dr. Rochling was the “consultant attending Gastroenterologist of record” on three of the six days the patient received care in Little Rock. Rochling first saw the patient on the afternoon of September 1, noting “We were called by Muskogee VA gastroenterology on 8/31/00 to request transfer for a second attempt at ERCP.” Rochling did not perform a second ERCP, writing that “we will reevaluate for ERCP 9/5 based on clinical progress.”

1 The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska.

2 The Honorable Warren K. Urbom, United States District Judge for the District of Nebraska (on reassignment).

 

Over the next few days, the patient’s condition deteriorated. After seeing himon September 5, Rochling wrote that he did not “think that ERCP is indicated at this point.” The patient died on September 7. The autopsy report stated that the patient was found to have a surgically resected and clipped common hepatic duct. Also he had hepatic cirrhosis and ascites was noted. The lungs were hyperemic congested. Renal cell carcinoma lesion was noted on left kidney. The obstruction of the common bile duct and rapid increase in serum bilirubin and impairment of liver function are leading causes of death in this patient.

The decedent’s family sued the VA, claiming: The VA surgeon placed clips on the patient’s common bile duct and left them there when the surgery was completed, which was below applicable standards of care. Following the surgery the patient began sufferings [sic], signs a[nd] findings indicative of biliary obstruction.

Nevertheless, the VA staff failed to timely recognize these signs symptoms and findings and failed to follow-up with the appropriate imaging studies and corrective surgery. As a proximate result of the foregoing the patient died.

The VA settled the claim in March 2003.

In January 2004, the VA notified Rochling of the claim and the settlement. The

letter informed him that a panel would review the case for “substandard care, professional incompetence, or professional misconduct,” determinations which would lead to reporting to the NPDB. The letter offered Rochling the opportunity to submit information to the panel for consideration, which he did. The VA considers a settlement payment to be made for the benefit of a physician if the panel “concludes that payment was related to substandard care, professional incompetence, or professional misconduct.” 38 C.F.R. § 46.3(b). The three-member panel evaluating Rochling’s case was composed of three physicians, one being a board-certified

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general surgeon experienced in laparoscopic cholecystectomy. Rochling received notice of the panel’s decision on July 22, which stated: “The Panel concluded that this patient received substandard care and identified the attending Gastroenterologist at the Little Rock VAMC, Fedja A. Rochling, M.D., Bch., as the responsible practitioner.” The decision was “[b]ased on a review of the medical record as well as any additional information submitted by practitioners involved in this case.”

Through two letters from his attorney, Rochling requested reconsideration, offering to provide opinions of independent consultants. The VA Medical Center Director on August 11 stated that the panel would “re-review this case to determine the possible need for further review by a medical sub-specialist.” Rochling submitted two reports from gastroenterologists to the panel on September 15 and October 6. In a letter dated September 16, the panel said it re-reviewed the case on August 11 and came to  he same conclusion.

On May 8, 2006, the VA submitted its report to theNPDB, stating that the settlement was for the benefit of Rochling. Rochling  submitted an administrative dispute in August, seeking withdrawal of the report.  TheVA denied the request. In December, he sought review from the Secretary of Health and Human Services. She denied the request for review in March 2010, explaining that the arguments Rochling made were beyond the scope of proper HHS review.

Rochling sued in August 2010, alleging violations of the APA and his substantive and procedural due process rights. In March 2011, the district court dismissed the due-process claims under Federal Rule of Procedure 12(b)(6). In April2011, Rochling moved for additional discovery and to supplement the record. The district court denied his requests. Rochling v. Dep’t of Veterans Affairs, 2011 WL 5525342, at *2 (D. Neb. Nov. 14, 2011). The parties cross-moved for summary judgment on the APA laims. The court granted the defendants’ motion.

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II.

Rochling contends that the district court erred by dismissing his due-process

claims for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.

P. 12(b)(6).

This court reviews de novo the grant of a motion to dismiss for

failure to state a claim. Butler v. Bank of Am., N.A., 690 F.3d 959, 961

(8th Cir. 2012). Reviewing a dismissal under Rule 12(b)(6), this court

assumes all facts in the complaint to be true and construes all reasonable

inferences from those facts most favorably to the complainant. Id.

Although a complaint need not contain “detailed factual allegations,” it

must contain facts with enough specificity “to raise a right to relief

above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007). “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009), citing Twombly, 550 U.S. at 555.

Minn. Majority v. Mansky, 708 F.3d 1051, 1055-56 (8th Cir. 2013).

A.

A procedural due process analysis has two steps: “first, whether the plaintiffs

have a protected interest at stake, and if so, what process is due.” Bliek v. Palmer,

102 F.3d 1472, 1475 (8th Cir. 1997). The district court dismissed Rochling’s

procedural due-process claim finding no protected interest. His complaint pleaded

the following injury:

51. As a result of the VA’s actions, Dr. Rochling was required to

disclose the report to the state boards of Nebraska and Wisconsin.

52. As a result of the Defendants [sic] actions, Dr. Rochling will also be

required to disclose and defend the VA’s report to the NPDB each time

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he applies or re-applies for privileges at a medical facility, employment,

state medical licenses or insurance.

53. Prior to the VA’s NPDB report, Dr. Rochling had never been

reported to the National Practitioner Data Bank.

54. The continued existence of the VA’s NPDB report results in

exponential harm to Dr. Rochling because any denial of employment,

privileges or licensure will result in additional reports to the NPDB and

further damage to Dr. Rochling.

The plaintiff must first show deprivation of a “constitutionally protected life,

liberty or property interest.” Davenport v. Univ. of Ark. Bd. of Trs., 553 F.3d 1110,

1114 (8th Cir. 2009). “[M]ere injury to reputation, even if defamatory, does not

constitute the deprivation of a liberty interest.” Conn. Dep’t of Pub. Safety v. Doe,

538 U.S. 1, 6-7 (2003), citing Paul v. Davis, 424 U.S. 693 (1976); see also Siegert

v. Gilley, 500 U.S. 226, 233-34 (1991). This court agrees with the district court that

Rochling did not sufficiently plead deprivation of a constitutionally protected interest.

Rochling’s complaint contains only conclusory statements of injury that do not rise

above a “speculative level.” See Minn. Majority, 708 F.3d at 1055-56.

This court has held that a “letter of concern” from the state licensing board

made part of a physician’s public record did not impair his license enough to support

a due-process claim. Kloch v. Kohl, 545 F.3d 603, 607-09 (8th Cir. 2008). Rochling

attempts to avoid Kloch three ways. First, he argues it is distinguishable because

Kloch was decided on summary judgment, not on a motion to dismiss. This is of no

consequence. If the alleged injury is not a deprivation of a constitutionally protected

interest, that ends the inquiry at any stage.

Second, Rochling notes that the Kloch court “acknowledged” that a plaintiff

must prove a deprivation of a “legitimate claim of entitlement,” which “may exist

where a state has established a licensing system for regulation of professionals.” See

Kloch, 545 F.3d at 607, citing Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,

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577 (1972) and Marler v. Mo. State Bd. of Optometry, 102 F.3d 1453, 1456 (8th Cir.

1996). This court agrees. An impairment of a medical license certainly could give

rise to a constitutional claim. As this court explained in Kloch: “The dispositive

question . . . is whether the letter of concern impaired his medical license.” Id.

It is on that dispositive question that Rochling makes his third argument: that

the letter of concern in Kloch is not as serious as the NPDB report in this case.

Rochling urges this court to follow the Seventh Circuit’s reasoning in Fleury v.

Clayton, 847 F.2d 1229 (7th Cir. 1988). There, the court held that physicians had a

property interest in a “clean license.” Fleury, 847 F.2d at 1233. That court further

held that a “formal censure” supported a procedural due-process claim. Id.

Unfortunately for Rochling, in Kloch this court distinguished Fleury.3 Specifically,

the “formal censure” in Fleury was a “disciplinary action,” which could have serious

repercussions. Kloch, 545 F.3d at 608. The “letter of concern” in Kloch, on the other

hand, was available to the public, but was advisory in nature. Id. The letter itself

could not result in adverse action – the state would have to take formal disciplinary

action on its own. Id.

While the NPDB report, like the Fleury censure, is a formal step that could

ultimately carry serious professional repercussions, the NPDB report by itself is not

a “rebuke[]” “censuring or reprimanding” Rochling. See Fleury, 847 F.2d at 1232.

Instead, the report simply means that a payment was made “for the benefit of”

Rochling. The official purpose of the report is to disclose information, not to

reprimand. The VA is required to submit a copy of all NPDB reports “to the State

Licensing Board where the practitioner holds a license, and to the State Licensing

Board in which the facility is located.” 38 C.F.R. § 46.3(d). A state may use the

3This court distinguished Fleury based on the factual qualities of the “formal

censure” versus the “letter of concern.” Fleury is also legally distinguishable. This

court has not adopted the “clean license” standard, nor does it do so here.

-7-

NPDB report to take formal disciplinary action but, as in Kloch, it is up to the state

to take that step. If Rochling had pled that a state licensing board is required to

reprimand a practitioner upon receiving an NPDB report, then an NPDB report might

constitute the inevitable equivalent of a formal censure. Rochling did not plead any

consequences beyond making the report available. If anything, the injury in this case

is less severe than in Kloch, where the letter of concern was available to the general

public – here, the NPDB report is not available to the general public. See 42 U.S.C.

§ 11137. Rochling’s allegations of “exponential harm” are speculative and

conclusory. Because he has failed to plead the deprivation of a constitutionally

protected interest, the district court did not err by dismissing the procedural dueprocess

claim.

B.

“[T]he theory of substantive due process is properly reserved for truly

egregious and extraordinary cases.” Gallagher v. Magner, 619 F.3d 823, 840 (8th

Cir. 2010) (alteration in original), quoting Myers v. Scott Cnty., 868 F.2d 1017, 1018

(8th Cir. 1989). The VA’s conduct “must shock the conscience or otherwise offend

our judicial notions of fairness, or must be offensive to human dignity.” Brown v.

Nix, 33 F.3d 951, 953 (8th Cir. 1994), citing Weimer v. Amen, 870 F.2d 1400, 1405

(8th Cir. 1989). “To prevail on this claim, [Rochling] must show a constitutionally

protected property interest and that [VA] officials used their power in such an

arbitrary and oppressive way that it shocks the conscience.” Gallagher, 619 F.3d at

840 (internal quotation marks omitted), quoting Entergy, Ark., Inc. v. Nebraska, 241

F.3d 979, 991 (8th Cir. 2001).

Substantive due process may be implicated if the government imposed “a

stigma or other disability that foreclosed his freedom to take advantage of other

employment opportunities.” Roth, 408 U.S. at 573-74 (1972). The Sixth Circuit has

rejected that an NPDB report raises due-process concerns because the doctor was “not

-8-

barred from practicing medicine generally.” Benjamin v. Brachman, 246 Fed. Appx.

905, 919 (6th Cir. 2007). Similarly, Rochling did not allege that he would lose his

job, be unable to find another, effectively be barred from practice, etc.4 See also

Ming Wei Liu v. Bd. of Trs. of Univ. of Ala., 330 Fed. Appx. 775, 780 (11th Cir.

2009) (“claimant must present evidence suggesting that a governmental act

effectively banned him or her from a profession”); Bordelon v. Chi. Sch. Reform Bd.

of Trs., 233 F.3d 524, 537 (7th Cir. 2000) (“employee must show that the

stigmatizing actions make it virtually impossible for the employee to find new

employment in his chosen field” (citations and internal quotation marks omitted)).

Rochling’s allegations of “truly egregious” behavior are far from those

necessary to “shock the conscience.” Throughout his brief, Rochling complains of

not being told about the claim before settlement. None of Rochling’s interests,

however, were at stake when the VA decided whether to settle. The VA was not

obligated to notify Rochling of the claim or the settlement. He also criticizes the

finding that the settlement was for his benefit, because he did not perform the surgery.

The VA’s reports indicate, however, that he was not held responsible for any surgical

errors. Rather, the panel determined that “the failure of the attending

Gastroenterologist to work this patient up for common bile duct injury or obstruction

by performing a repeat ERCP was inappropriate.”

Because Rochling’s pleadings are insufficient, the district court did not err by

dismissing his substantive due-process claim.

4Rochling argues that Benjamin is distinguishable because it was decided on

summary judgment. Not so. This court is following the standard in Benjamin. While

that court analyzed it in the context of the evidence available at summary judgment,

this court looks only at Rochling’s pleadings.

-9-

III.

Rochling’s remaining claims are impacted by the standard of review for the

agency’s actions. Rochling argues for de novo review. The district court disagreed,

applying arbitrary and capricious review. This court engages in an independent

review of the district court’s selection of the standard for evaluating agency action.

See Nesseim v. Mail Handlers Ben. Plan, 995 F.2d 804, 807 (8th Cir. 1993). The

district court’s determination was correct.5

De novo review of an agency action is available in only two scenarios: “First,

. . . when the action is adjudicatory in nature and the agency factfinding procedures

are inadequate[; and second], . . . when issues that were not before the agency are

raised in a proceeding to enforce nonadjudicatory agency action.” Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). The first situation

The district court made this determination twic 5 e. First, during the motion to

supplement the record, the magistrate judge recommended denial of Rochling’s

request for de novo review:

Plaintiff’s arguments about the insufficiency of the review process go to

the heart of his APA claim – that the VA did not properly investigate or

provide notice of the malpractice claim and, as a result, wrongfully

determined that the settlement was for Plaintiff’s benefit. It would be

improper for the court to, in effect, decide these issues through a motion

to supplement the record. Plaintiff is not entitled to de novo review.

Rochling v. Dep’t of Veterans Affairs, 2011 WL 5523556, at *3 (D. Neb. Sept. 27,

2011), adopted, 2011 WL 5525342, at *2 (D. Neb. Nov. 14, 2011). On summary

judgment, the court performed a detailed analysis of the standard of review, rejecting

Rochling’s request for de novo review. This court need not explore the implications

of evaluating the standard of review during a motion to supplement the record. At all

times, de novo review was not warranted, so both conclusions of the district court

were correct.

-10-

is relevant here, as both parties agree that the VA’s action is adjudicatory. Rochling

alleges that the VA’s factfinding procedures were inadequate for four reasons.

First, Rochling argues that the VA panel “found that the settlement had been

for the benefit of Dr. Rochling while disregarding the actual reasons for the

settlement.” He claims the panel ignored (or was not aware of) the surgical

complications affecting the patient. This criticism attacks the merits of the VA’s

decision, not its factfinding procedures. Nevertheless, the panel was aware of the

surgery as it was included in the medical record as well as in Rochling’s report. The

panel’s decision was “[b]ased on a review of the medical record as well as any

additional information submitted by practitioners.” Further, Rochling was not

responsible because he negligently performed a procedure. Rather, he failed to

correctly diagnose the patient and failed to perform the very procedure recommended

for the patient.

Second, Rochling says he “was not given notice of the claim, and once the

claim was settled, he was not afforded sufficient notice of the allegations against him

or an opportunity to address them.” He contends it is unfair that he was not given

notice of the claim until a year after the settlement. Rochling cites no authority that

he should have received notice earlier. In fact, the pertinent regulation states that the

“notice from the VA facility director will indicate that VA is considering whether to

report the practitioner to the National Practitioner Data Bank because of a specified

malpractice payment made . . . .” 38 C.F.R. § 46.3(b) (emphasis added). The

regulation contemplates that notice occurs after a payment is made – exactly what

happened here.6

Rochling correctly notes that the VA s 6 ubsequently changed its procedure to

require that notice be given to a practitioner within 30 days of a malpractice claim.

See Notification of Medical Malpractice (Tort) Claims Against Licensed

Practitioners, VHA Directive 2009-032, ¶ 3 (July 15, 2009), available at

http://www1.va.gov/vhapublications/ViewPublication.asp?pub_ID=2046. It is

-11-

Third, Rochling alleges the VA’s factfinding was improper because he was not

given the opportunity to respond to the statements of other physicians, specifically

Dr. Robert E. Fox, Jr., and Dr. Richard R. Jesudass. Again, Rochling does not point

to any regulation giving him the right to do so. The regulation obligates the VA to

“provide the practitioner the opportunity, within 60 days of receipt [of notice], to

submit a written statement concerning the care that led to the claim.” Id. Rochling

took advantage of this opportunity. Fox and Jesudass also submitted letters, and the

panel made its decision based on these reports and other available information.

Moreover, while Fox and Jesudass did blame the physicians at Little Rock, Rochling

similarly blamed other doctors. The relevant professionals had the opportunity to

present their version of the events, and the panel made its decision accordingly.

Fourth, Rochling argues that the review panel should have contained a

gastroenterologist or hepatologist. The three-member panel was composed of three

physicians, one being a board-certified general surgeon experienced in laparoscopic

cholecystectomy. The review panel should “includ[e] at least one member of the

profession/occupation of the practitioner(s) whose actions are under review.” Id.

The Veterans Health Administration Handbook explains this requirement:

The panel must consist of, at a minimum, three off-station reviewers

who are health care professionals, including at least one reviewer who

is a member of the profession or occupation of the practitioner(s)

represented in the case and/or claim under review.

VHA Handbook 1100.17 § 5.b.(4)(a) (Nov. 13, 2002). Rochling contends that

because all of the members are “health care professionals,” then “member of the

profession” must mean a specialist. “Health care professional,” however is broader

undisputed that this change postdated the agency’s review, and this court follows the

policy in place at the time of the challenged agency action. Cf. Utah Envtl. Cong. v.

Bosworth, 372 F.3d 1219, 1221 n.1 (10th Cir. 2004).

-12-

than only doctors, and includes, inter alia, dentists, nurses, and any licensed

professional. See, e.g., Id. § 1 (“The purpose of this Veterans Health Administration

(VHA) Handbook is to provide required procedures for heath care facilities on

reporting information to the National Practitioner Data Bank (NPDB) regarding

physicians, dentists and other licensed health care professionals.” (emphasis added));

Am. Fed’n of Gov’t Emps., Local 3884 v. FLRA, 930 F.2d 1315, 1318 (8th Cir.

1991). This court agrees with the district court that the VA’s determination was

reasonable. Further, it is supported by supplementary authorities. The VHA

Handbook’s appendix says:

Upon receipt of the material from the facility director’s designee,

the Office of the Director, Medical-Legal Affairs must assign a

minimum of three providers to be panelists. All panels must include a

member of the same profession of the individual whose practice during

an episode of care is being reviewed. Other types of professionals will

be appointed as necessary. When the review of the episode of care

requires knowledge of a specific surgical technique, or of a medical

judgment requiring a specific cognizant function, the panel may request

a consultation from an appropriate specialist.

Id. app. C § 10. This confirms that specialists are not required on the review panel.

When necessary, the panel may consult them. Here, the panel even re-reviewed the

case to determine whether a specialist was necessary, and concluded it was not.

Additionally, the VA, in its notice-and-comment discussion about panel review

indicates that a specialist is not required:

The medical school representative asserted that the review panel

should consist only of members having the same area of expertise as the

practitioner in question “or, in the alternative, only panel members

having such expertise be allowed to vote.” No changes are made based

on these comments. Based on a review of the more than 1,100 paid

claims that have been considered by a review panel since 1997, we have

concluded that the overwhelming majority of claims do not include

-13-

issues requiring such specialized expertise. Further, the regulations at

§ 46.3(b) allow for the review panel to obtain and consider opinions of

experts as needed.

Policy Regarding Participation in National Practitioner Data Bank, 67 Fed. Reg.

19,678, 19,679 (Apr. 23, 2002) (final rule) (supplementary information). Rochling

seizes on the words “consist only of” and argues that this statement forecloses only

the possibility of all panel members being of the same specialty. However, this court

agrees with the district court that, taken with the other regulations, the discussion

supports the VA’s reasonable interpretation that a specialist was not required on the

panel.7

The VA’s factfinding procedures were adequate, and the district court properly

rejected de novo review.

A.

The district court denied Rochling’s request to supplement the administrative

record. That decision is “entitled to deference ‘absent a gross abuse of discretion.’”

Voyageurs Nat’l Park Ass’n v. Norton, 381 F.3d 759, 766 (8th Cir. 2004), quoting

Tenkku v. Normandy, 348 F.3d 737, 743 (8th Cir. 2003). Because de novo review

does not apply, Rochling’s ability to conduct additional discovery is very limited. “It

is well-established that judicial review under the APA is limited to the administrative

record that was before the agency when it made its decision.” Id., citing Overton

Rochling notes that the VHA 7 Handbook has been amended to require a

member of the same speciality on the panel. See VHA Handbook 1100.17 § 8.g.(1)

(Dec. 28, 2009), available at http://www.va.gov/vhapublications/

ViewPublication.asp?pub_ID=2135. It is undisputed that this amendment postdated

the agency’s review, and this court follows the policy in place at the time of the

challenged agency action. Cf. Utah Envtl. Cong. v. Bosworth, 372 F.3d 1219, 1221

n.1 (10th Cir. 2004).

-14-

Park, 401 U.S. at 420, Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743-44

(1985), and Newton Cnty. Wildlife Ass’n v. Rogers, 141 F.3d 803, 807 (8th Cir.

1998). “By confining judicial review to the administrative record, the APA precludes

the reviewing court from conducting a de novo trial and substituting its opinion for

that of the agency.” Id., citing United States v. Morgan, 313 U.S. 409, 422 (1941).

[C]ertain exceptions have been carved from the general rule limiting

APA review to the administrative record. These exceptions apply only

under extraordinary circumstances, and are not to be casually invoked

unless the party seeking to depart from the record can make a strong

showing that the specific extra-record material falls within one of the

limited exceptions. Animal Defense Council v. Hodel, 840 F.2d 1432,

1436-38 (9th Cir. 1988). When there is “a contemporaneous

administrative record and no need for additional explanation of the

agency decision, ‘there must be a strong showing of bad faith or

improper behavior’ before the reviewing court may permit discovery and

evidentiary supplementation of the administrative record.” Newton, 141

F.3d at 807-08 (quoting Overton Park, 401 U.S. at 420).

Id.

There is a contemporaneous administrative record in this case that provides

sufficient explanation for the VA’s decision. The explanation need only be sufficient

to allow judicial review. See Madison Cnty. Bldg. & Loan Ass’n v. Fed. Home

Loan Bank Bd., 622 F.2d 393, 396, 397 (8th Cir. 1980) (a resolution that “merely

states that the regulatory criteria were met” satisfies this requirement because it

allows a court to “examine the record to see if it . . . provides a rational basis for the

agency’s choice”). The agency’s decision here does much more, explaining the

specific grounds for the decision and the specific evidence relied on. The decision

and record here are sufficient for judicial review and the district court did not grossly

abuse its discretion in denying the motion to supplement.

-15-

Rochling’s specific attacks on the administrative record are similarly

unavailing. First, he requests information about the settlement of the malpractice

claim, including the settlement itself and the facts considered. This is foreclosed by

the relevant regulation:

The conclusions of the panel shall, at a minimum, be based on review of

documents pertinent to the care that led to the claim. . . . These

documents do not include those generated primarily for consideration or

litigation of the claim of malpractice.

38 C.F.R. § 46.3(b).

Rochling also argues that the VA did not obtain statements from all the treating

physicians. Other doctors interacted with the patient while at the Little Rock VA, yet

the VA obtained only Rochling’s statement from the team of treating physicians at

that hospital. “The conclusions of the panel shall, at a minimum, be based on review

of documents pertinent to the care that led to the claim. . . . [T]o the extent

practicable, the documents shall include written statements of the individual(s)

involved in the care which led to the claim.” Id. This court agrees with the district

court that the VA did not abuse its discretion by not obtaining additional reports. The

claim was based on surgical clips left in a patient and the subsequent failure to

diagnose the problem through ERCP. The panel had statements from the physicians

responsible for those acts, fulfilling the requirement for “written statements of the

individual(s) involved in the care which led to the claim.” (emphasis added). See

Auer v. Robbins, 519 U.S. 452, 461 (1997) (agency’s interpretation of its own

regulation is controlling unless “plainly erroneous or inconsistent with the

regulation”).

The district court did not grossly abuse its discretion by denying Rochling’s

motion to supplement the record.

-16-

B.

Rochling argues that the district court improperly granted the defendants’

motion for summary judgment. “This court reviews de novo a grant of summary

judgment, construing all facts and making all reasonable inferences favorable to the

nonmovant.” Spirtas Co. v. Nautilus Ins. Co., 715 F.3d 667, 670 (8th Cir. 2013),

quoting Gen. Mills Operations v. Five Star Custom Foods, Ltd., 703 F.3d 1104,

1107 (8th Cir. 2013). Summary judgment is proper “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a).

This court reviews the “district court’s summary judgment decision de novo,

applying the same standards as those applied by the district court.” Cent. S.D. Coop.

Grazing Dist. v. Sec’y of U.S. Dep’t of Agric., 266 F.3d 889, 894 (8th Cir. 2001).

The VA’s decision will be upheld unless it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

As the reviewing court, we engage in a substantial inquiry, based

on an examination of the administrative record, in order to answer three

questions: (1) whether the [agency] acted within the scope of [its]

authority, Overton Park, 401 U.S. at 415; (2) whether the decision was

“based on a consideration of the relevant factors,” id. at 416; and (3)

whether the [agency] “follow[ed] the necessary procedural

requirements.” Id. at 417.

South Dakota v. U.S. Dep’t of Interior, 423 F.3d 790, 799 (8th Cir. 2005) (final

alteration in original). “A decision is arbitrary or capricious if ‘the agency 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

contrary 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.” Friends of

-17-

Boundary Waters Wilderness v. Bosworth, 437 F.3d 815, 822 (8th Cir. 2006),

quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,

43 (1983).

Rochling contends that the VA acted arbitrarily and capriciously by not

considering his expert reports. He emphasizes that the panel’s re-review took place

on August 11, 2004, and the report says it was made “in light of all the additional

information provided.” That is impossible, according to Rochling, because his

experts’ reports were not submitted until September 15 and October 6. A careful

review of the record, however, shows that the board reviewed all necessary

information. After Rochling received the panel’s initial decision, his attorney sent

a letter on July 30 to the VA, requesting re-review of the case, specifically stating: “I

would request that the report to the Data Bank be delayed until such time as Dr.

Rochling and myself have an opportunity to examine the Panel report in more detail

and perhaps submit an outside consultant’s review.” This letter also set out sections

of the VHA Handbook that Rochling asserts entitled him to a specialist on the panel.

In a follow-up letter on August 6, Rochling’s attorney said: “We are willing to

go to the expense of providing the panel or a replacement panel with the opinions of

one or more consultants in an effort to be certain that the decision is correct.” The

VA’s response on August 11 said:

The Director of Medical Legal Affairs was contacted and he

indicated that the panel requirements set forth in the VA regulations had

been met. He is willing to ask the panel to re-review this case to

determine the possible need for further review by a medical subspecialist.

(emphasis added). The VA never requested expert reports or indicated a willingness

to review them. Rather, the panel would re-review to decide if expert opinions were

necessary. The panel then re-affirmed its decision, stating:

-18-

Based on a re-review of this case on August 11, 2004, in light of

all of the additional information provided, the Panel reaffirmed its initial

conclusion that this patient received substandard care and again

identified Fedja A. Rochling, M.D., Bch., as the responsible

practitioner.

Rochling assumes “additional information” is referring to the expert reports, but

“additional information” could also reference the information provided by the

attorney, specifically, the citation and discussion of the VHA Handbook provisions.

Any failure to review was not arbitrary or capricious.

Next, Rochling argues that the decision is in error because it settled the claim

before notifying him, and did not give him the opportunity to respond to the letters

of other doctors. As discussed, no authority supports either argument. The evidence

in the record supports the panel’s decision.

Rochling also asserts the panel’s action is not in accordance with law because

the VA failed to follow its own rules. Specifically, he reiterates that a specialist was

required on the panel. As discussed, this is not required. The VA stated its position

in its August 11 letter: “As a matter of record, general surgeons throughout the VA

Healthcare System may be privileged to perform ERCP’s and therefore are familiar

with indications or contraindications of the same.” Cf. Poche v. Joubran, 389 Fed.

Appx. 768, 773-74 (10th Cir. 2010) (general surgeon permitted to testify as to

whether an ERCP was necessary).

Rochling claims the VA also failed to follow its own rules by not obtaining

written statements from additional physicians. As discussed, this court agrees with

the district court that the VA did not abuse its discretion in reviewing written

statements from the three doctors involved in the care which led to the claim.

Further, to the extent the VA did not follow its own regulation on written statements,

Rochling failed to show substantial prejudice. True, some agency rules do not require

-19-

a showing of prejudice to warrant judicial review. See, e.g., Lopez v. FAA, 318 F.3d 242, 247 (D.C. Cir. 2003). Other circuits have held that if the regulation is “promulgated to protect a fundamental right derived from the Constitution or a federal statute,” and the agency does not abide by it, remand is required. Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1993) (finding that two notice provisions in immigration regulations were not derived from a fundamental constitutional or statutory right, so a showing of prejudice was required); see also Wilson v. Comm’rof Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004) (no showing of prejudice required when an ALJ violated a regulation by failing to give “good reasons” for not giving weight to a treating physician’s disability determination).

The general framework is clear:

The Supreme Court has . . . distinguished between the types of internal agency regulations that are reviewable. In American Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970), a case involving regulations designed to provide the agency with information it needed to reach an informed decision, the Court held that theregulations were unreviewable absent a showing of substantial prejudice by the complaining party. On the other hand, had the agency’s rules been “intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion as in Vitarelli,” id. at 538-39, or had the agency failed to exercise independent discretion required by the rule, as in Accardi, id. at 539, the Court indicated the case would be “exempt” from the general principle that an administrative agency may “relax or modify its procedural rules adopted for the orderly transaction of business . . . when . . . the ends of justice require it.” Id.

Lopez, 318 F.3d at 247. In this case, the requirement for the panel to obtain “written statements of the individual(s) involved in the care which led to the claim”– “to the extent practicable” – falls into the first category: a regulation “designed to provide the agency with information it needed to reach an informed decision.” Id. “The rule[]

-20-

w[as] not intended primarily to confer important procedural benefits upon individuals in the face of otherwise unfettered discretion.” Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 538 (1970).

This case is significantly different than Vitarelli v. Seaton, 359 U.S. 535 (1959), namely due to the absence of “otherwise unfettered [agency] discretion.” In Vitarelli, the petitioner was terminated from his job with the Department of the Interior on national security grounds. Vitarelli, 359 U.S. at 539. Although the Secretary of the Interior had the power to discharge summarily employees holding the petitioner’s type of job – in other words, the Secretary generally had complete discretion to take the contested action – the Secretary had promulgated special procedural rules governing the dismissal of employees on national security grounds.

Without these rules, the Secretary’s “otherwise unfettered discretion” would govern. Because the Secretary had not followed these rules in the petitioner’s case, the Court held that the petitioner was entitled to reinstatement, without any showing of substantial prejudice from the procedural violation. In contrast, the particular rule the agency allegedly violated during the course of Rochling’s review is hardly the lone bulwark against otherwise unfettered agency discretion. The VA faces significant other constraints when investigating and submitting NPDB reports. See 38 C.F.R. § 46.3(a) (requiring the VA to collect and include in its report to the NPDB a

specified list of information); § 46.3(b) (defining when a payment was “made for the

benefit of” a practitioner, imposing constraints on the professional qualifications of

individuals who may serve on a review panel, requiring the panel to consider certain

types of documents when reaching its conclusion, and requiring the practitioner to be

given notice and an opportunity to be heard). Further, this case is distinguishable

from Social Security cases such as Wilson because those hearings touch upon what

is recognized as a property interest in the continued receipt of benefits, whereas

Rochling failed to plead the deprivation of a “legitimate claim of entitlement.”

-21-

Therefore, Rochling would be required to show substantial prejudice, which

he has failed to do. The panel found that the settlement was for the benefit of

Rochling because he failed to properly diagnose and perform a second ERCP. His

own notes, the medical records, and other evidence before the panel support this

conclusion. The panel based its decision on “a review of the medical record as well

as any additional information submitted by practitioners involved in this case.”

The VA’s decision was not arbitrary or capricious, and the district court did not

err by granting summary judgment.

* * * * * * *

The judgment of the district court is affirmed.

______________________________

-22-

Are you kidding me? “VA Execs Will Leave if Congress Bans Bonuses, Group Says…and are awarded only after a “rigorous review of executives’ achievements against both individual and organizational performance goals.”” – Pay & Benefits – GovExec.com

 

If these bonuses are awarded only after a rigorous review how do they explain the $63,000 that Michael Moreland got?

Bonosaro emphasized the bonuses are part of SES employees’ pay structure, and are awarded only after a “rigorous review of executives’ achievements against both individual and organizational performance goals.”

VA Execs Will Leave if Congress Bans Bonuses, Group Says – Pay & Benefits – GovExec.com.

Proposals to ban performance bonuses for senior executives at the Veterans Affairs Department are unwarranted and damaging to VA’s mission, according to a professional association representing top federal managers.

The Senior Executives Association wrote a letter to Reps. Jeff Miller, R-Fla., and Mike Michaud, D-Maine, the chairman and ranking member of the House Veterans’ Affairs Committee, to condemn a recent push to limit or altogether block performance awards to Senior Executive Service and equivalent grade employees at VA.

“There seems to be a misperception that federal career senior executives are collecting Wall Street salaries and bonuses while accomplishing little of value,” SEA President Carol Bonosaro wrote in the letter. “Nothing could be farther from the truth.”

Miller has introduced a bill — the Putting Veterans Funding First Act — that would place a five-year moratorium on all bonuses for senior executives at the VA, saving the federal government $18 million. VA has come under increased pressure after a Government Accountability Office audit found inadequate oversight led to suspended and unlicensed doctors receiving significant bonuses. Miller held a hearing Monday to further examine VA’s bonus program.

Bonosaro emphasized the bonuses are part of SES employees’ pay structure, and are awarded only after a “rigorous review of executives’ achievements against both individual and organizational performance goals.”

“In those very infrequent instances when a career executive abuses his or her position or fails to meet established performance requirements, their agency can and should take appropriate corrective and/or disciplinary action,” Bonosaro wrote. “However, all indications suggest that the federal career executive corps is an extremely hard-working, dedicated and effective group of senior managers who work to maintain the public trust.”

She added threats to ban bonuses  are “counter-productive and run the risk of detracting from mission accomplishment and driving high performing VA executives to retire or seek more rewarding positions in other parts of the government or the private sector.”

Trends Over Time in the Relative Use and Associated Mortality of On-Pump and Off-Pump Coronary Artery Bypass Grafting in the Veterans Affairs System

JAMA Network | JAMA Surgery | Trends Over Time in the Relative Use and Associated Mortality of On-Pump and Off-Pump Coronary Artery Bypass Grafting in the Veterans Affairs System.

ASSOCIATION OF VA SURGEONS

Trends Over Time in the Relative Use and Associated Mortality of On-Pump and Off-Pump Coronary Artery Bypass Grafting in the Veterans Affairs SystemONLINE FIRST

Faisal G. Bakaeen, MD1,2,3; Rosemary F. Kelly, MD4; Danny Chu, MD1,2,3; Michael E. Jessen, MD5; Herbert B. Ward, MD4; William L. Holman, MD6
JAMA Surg. Published online September 11, 2013. doi:10.1001/jamasurg.2013.3580
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Importance  Numerous studies have compared the results of on-pump and off-pump coronary artery bypass grafting (CABG), but little is known about how either the relative use of these procedures or their associated perioperative mortality have changed with time.

Objective  To examine trends in off- and on-pump CABG use and outcomes over time.

Design  Retrospective analysis of data from the Veterans Affairs Surgical Quality Improvement Program (VASQIP).

Setting  Data were collected from 42 Veterans Affairs cardiac surgery centers.

Participants  All Veterans Affairs patients (n = 65 097) who underwent isolated primary CABG from October 1997 to April 2011.

Interventions  Patients underwent either on-pump (ON) or off-pump (OFF) CABG.

Main Outcomes and Measures  The percentages of ON vs OFF cases as a function of time. We also evaluated trends over time in rates of conversion from OFF to ON CABG, perioperative mortality (30-day or in-hospital), and VASQIP predicted risk of mortality.

Results  The relative use of OFF CABG peaked at 24% in 2003, followed by a slow and mostly consistent decline to stabilize at about 19%. The conversion rate decreased with time and has stayed less than 3.5% since 2007 (P < .001). Perioperative mortality rates decreased over time for both ON and OFF CABG (P < .001) and have stayed less than 2% for the entire cohort since 2006. The mortality associated with converted cases was high regardless of the surgery year and exceeded the VASQIP predicted risk of mortality.

Conclusions and Relevance  There has been a decline in the relative use of OFF CABG in the Veterans Affairs system since 2003. This trend may affect the training of future generations in OFF surgery and influence conversion rates and outcomes.

Lawmakers Demand Answers From VA Over Hospital Mistakes | wgrz.com

Lawmakers Demand Answers From VA Over Hospital Mistakes | wgrz.com.

PITTSBURGH, Pa. — Department of Veterans Affairs officials had trouble explaining to a House committee why department officials received awards and bonuses while hospitals they oversaw were the sites of infectious disease outbreaks and suicide deaths in recent years.

Buffalo was among the cities where leaders got bonuses despite problems within their systems. The Upstate New York network director, David West, got nearly $26,000 in bonuses despite revelations that workers re-used disposable insulin pens on patients at the Buffalo hospital, putting veterans at risk of HIV or hepatitis infections.

As of Tuesday afternoon, the VA said 19 veterans tested positive for hepatitis. Further testing will confirm whether or not it is directly tied to the insulin pen mistake.

The issues in the Pittsburgh region were far worse.

At Monday’s hearing, the VA’s under secretary for health, Robert Petzel, initially stood by recommending a Presidential Distinguished Rank Award – a top prize for a federal executive – for Pittsburgh regional director Michael Moreland, arguing that the award was for a lifetime of work.

However, Rep. Tim Murphy, R-Pa., said the failure to stem or prevent an outbreak of Legionnaire’s disease had led to an ongoing criminal probe and critical reports by the VA’s inspector general. After those points were made, Petzel said he could not say if the award was still warranted.

The VA later issued a statement saying its decision to nominate Moreland for the award is under review. In addition, cash bonuses for some senior VA health executives from 2012 have been deferred pending reconsideration, the VA says.

The department decided weeks ago not to hand out 2012 cash bonuses to executives running benefits operations after a backlog of compensation cases reached record levels earlier this year. That backlog has since been reduced.

Moreland was given the presidential award in April and also received a $63,000 bonus.

Moreland joined Petzel at the hearing in Pittsburgh, where the disease outbreak occurred. Moreland apologized for what happened at the VA hospital under his watch and acknowledged that “the timing of (the presidential award) was very bad.”

In addition to the five Legionnaire’s deaths in Pittsburgh, there were three suicides at an Atlanta VA hospital in recent years. Family members, many of them in tears, testified at the hearing about losing loved ones.

Petzel said the VA learned from mistakes in Pittsburgh and Atlanta, and problems of mismanagement at VA hospitals in Dallas, Buffalo, and Jackson, Miss. He also asserted that what happened at those facilities was not a systemic problem for a veterans health care system that serves 6.3 million people.

He expressed condolences for the deaths that occurred.

“VA works diligently to identify and hold people responsible,” Petzel said. “We can and we must do better. This is not a perfect system and there are many things that need to be improved.”

He also said that process of awarding cash bonuses, which came under fire in a Government Accountability Office report last month, is under review. He said the bonuses are necessary for attracting and retaining talented employees.

Employees have been punished for the problems at the five hospitals, Petzel said, although he could not discuss personnel action. He said he gave the committee a list of those actions.

Rep. Jeff Miller, the committee chairman and a Republican from Florida, said he received the list Sunday and he didn’t believe the discipline “does in fact hold individuals accountable.”

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