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Magalhaes v. Wilkie

United States District Court, W.D. Missouri, Western Division

May 20, 2019

HONORABLE ROBERT WILKIE, Secretary of the Department of Veterans Affairs, Defendant.



         This action arises from Plaintiff Alvaro Magalhaes, M.D.'s termination from the Kansas City Department of Veterans Affairs Medical Center (“VAMC”). Plaintiff alleges the agency's decision to terminate his employment and revoke his clinical privileges is unsupported by substantial evidence, arbitrary and capricious, and obtained without the procedures required by law or regulation. Because the factual determinations are supported by substantial evidence, and his termination is rationally connected to those facts, the decision is AFFIRMED.


         The U.S. Department of Veteran Affairs (“VA”) is an executive department led by Secretary Robert Wilkie (“Defendant”). The VA, through the Veterans Health Administration, operates a national healthcare system that includes the VAMC. From 2010 to 2016, VAMC employed Plaintiff as a full-time neuroradiologist appointed under 38 U.S.C. § 7401(1).

         On March 3, 2016, the VAMC Emergency Room Director informed the Service Chief of the VAMC Radiology Service (“Chief of Radiology”) that Plaintiff had failed to diagnose a subarachnoid hemorrhage in two computed tomography (“CT”) scans regarding the same patient. The Chief of Radiology believed this failure was a significant error and took her concerns to the VAMC's Chief of Staff.

         Because of the significance of the misreading, the Chief of Staff submitted a recommendation for the suspension of Plaintiff's clinical privileges to the VAMC Professional Standards Board (“PSB”) and the Executive Committee of the Medical Staff (“ECMS”). On March 4, 2016, both the PSB and the ECMS decided to summarily suspend Plaintiff's clinical privileges. When Plaintiff returned from a previously scheduled leave of absence on March 14, the Chief of Staff and the Chief of Radiology alerted Plaintiff his clinical privileges had been suspended and he was under review.

         An internal neuroradiologist at VAMC, Jordan Sessions, M.D., conducted a review of sixty of Plaintiff's cases. Most were randomly selected, but a few were cases in which the Chief of Radiology had been informed of concerns with Plaintiff's work by other providers. Of the sixty cases, Dr. Sessions identified sixteen as being major misses. Those sixteen cases were then sent to Daniel Martin, M.D., an external neuroradiologist at a different VA hospital, for review. Dr. Martin came to the same conclusion as Dr. Sessions in thirteen out of the sixteen cases.

         Plaintiff filed a written response to the sixteen cases, and on April 12, 2016, the Chief of Radiology presented the results of the sixteen cases, as well as Plaintiff's response, to the PSB. Immediately after the PSB meeting, the ECMS held a special session where Plaintiff presented on each of the sixteen cases. Both the PSB and ECMS recommended revocation of privileges and removal based on their review and Plaintiff's comments on the sixteen cases.

         A few days later, the Chief of Staff determined that seven of the cases should not have been considered by the PSB and ECMS because they were not randomly selected and had previously been discussed with Plaintiff. The Chief of Staff then presented the nine remaining cases to the PSB and ECMS, and upon review of those cases, the PSB and ECMS again determined that removal and revocation of privileges was warranted.

         On July 5, 2016, the Chief of Staff proposed Plaintiff's privileges be revoked and he be removed from employment. His penalty was based on a single charge: failure to demonstrate appropriate radiologist skills, which encompassed nine specifications (or cases) supporting his removal. In August 2016, the Medical Center Director, Kathleen Fogarty, sustained the charge and all related cases. She also upheld the penalty of removal of privileges.

         Plaintiff subsequently requested a hearing before the Disciplinary Appeals Board (“DAB”). The DAB, which consisted of two radiologists and a medical doctor selected by the Deputy Under Secretary for Health Operations and Management, held a two-day hearing in February 2017.

         At the hearing, the DAB heard testimony from Dr. Martin, the Chief of Radiology, the Chief of Staff, the Medical Center Director, and Plaintiff. The DAB also had before it the administrative record, which included, among other things, the findings of Dr. Sessions and Dr. Martin, Plaintiff's written responses to the charge, a summary of Plaintiff's oral response to the charge, letters to Plaintiff regarding his removal and revocation, agency procedures, and articles concerning the medical significance of Plaintiff's misreadings.

         Following the hearing, the DAB unanimously sustained seven of the nine cases and found the charge-failure to demonstrate appropriate radiologist skills-to be sustained by a preponderance of the evidence. The seven cases sustained included missed diagnoses of a subarachnoid hemorrhage, a disc extrusion, a neck tumor, two benign brain tumors, bilateral pars defects with grade 1-2 spondylolisthesis, [1] and brain metastases, that is, cancer spread to the brain from another primary cancer site. The DAB did not sustain the other two cases because it found one to be an understandable miss and the other a careless dictation error. In its decision, the DAB also noted that Plaintiff had resigned from his last job at a different VA after he was placed on one hundred percent clinical practice review; he was placed on this review following reports of erroneous neuroradiology interpretations. It also found that Plaintiff failed to take responsibility for many of the misreadings and to appreciate the potential for patient harm. Thus, the DAB sustained Dr. Magalhaes' removal.

         The Principal Deputy Under Secretary affirmed the DAB's decision. Plaintiff then filed this complaint, seeking judicial review of the agency's decision to terminate his employment.

         Standard ...

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