Tucker v. Princeton Community Hospital Association, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

AT BLUEFIELD

LORI TUCKER,

Plaintiff,

v. CIVIL ACTION No. 1:19-00227

PRINCETON COMMUNITY HOSPITAL

ASSOCIATION, INC., et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

I. Background

This case is grounded in plaintiff’s allegation that she, a

physician specializing in obstetrics and gynecology (“OB/GYN”),

was subjected to investigation and loss of hospital privileges

after speaking out on the issue of abortion during the 2016

national election cycle. According to the allegations in the

Amended Complaint, which are taken as true at this stage in the

proceedings, plaintiff Lori Tucker is a board-certified OB/GYN

physician licensed to practice medicine in West Virginia and

Ohio. See Amended Complaint at ¶ 4 (ECF No. 18). In 2002, Dr.

Tucker began practicing medicine in West Virginia and had

hospital and/or staff privileges at Princeton Community Hospital

Association, Inc. (“PCH”) starting in 2005. See id. at ¶¶ 13-15.

Jeffrey Lilley, Frank Sinicrope, Joe C. Ellington, Jr., Wallace

Horne, Wesley L. Asbury, Marshall C. Long, Christopher Daniel,

Jeffrey T. Gee, Eric S. Hopkins, Amos Lane, Brandon Lingenfelter,

Thomas Charles Martin, Jr., Sherri B. Ross, and Todd Smith are

alleged to be employees or agents of PCH and “at all times

relevant to this action” members of PCH’s Medical Executive

Committee (“MEC”). Id. at ¶ 7.

Dr. Tucker alleges that “[d]uring the 2016 national election

cycle, and particularly during the campaign for President of the

United States, [she] became concerned that facts about abortion

were being misrepresented in the media.” Id. at ¶ 21. In order

“to correct misperceptions that she had identified in the

national debate over abortion”, Dr. Tucker recorded and published

a video that was published on Facebook and “quickly went viral.”

Id. at ¶¶ 23 and 24.

Eric Porterfield, the minister of Rich Creek Baptist Church

in Spanishburg, West Virginia and founder of Blind Faith

Ministries, is an outspoken opponent of abortion. See id. at ¶

8. After becoming aware of Dr. Tucker’s video, “Porterfield

contacted Tucker and demanded that she retract the video and

repent for the views she expressed in it.” Id. at ¶ 26. When

Dr. Tucker refused to do so, “Porterfield threatened that Tucker

would see wrath come against her because of her position on

abortion.” Id. at ¶ 28. “Porterfield exercised considerable

influence in the Princeton and surrounding areas [and] has since

been elected to the West Virginia House of Delegates.” Id. at ¶

31. Allegedly, Porterfield communicated to individuals

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associated with PCH “his desire to destroy Tucker’s medical

practice, have her removed from her service at the Hospital, and

otherwise suffer what he determined should be the consequences of

her views on abortion.” Id. at ¶ 30.

Dr. Tucker also appeared on national television advocating

for the use of suboxone in treating pregnant women suffering from

addiction. See id. at ¶¶ 32-33. According to Dr. Tucker, PCH

did not support the use of suboxone to treat expectant mothers

and newborns. See id. at ¶ 34.

On March 29, 2017, Dr. Tucker was called to a meeting with

Dr. Wesley Asbury, PCH’s Chief of Staff, and Dr. Wallace Horne,

PCH’s Chief Medical Officer and Vice President of Medical

Affairs. See id. at ¶ 36. “Dr. Asbury and Dr. Horne sought to

restrict Dr. Tucker from performing any surgical procedures, but

agreed she could continue to perform C-sections and outpatient

surgeries other than hysterectomies or other major surgical

procedures.” Id. at ¶ 37. According to Dr. Tucker, “[n]o

explanation was provided, deficiencies explained, or correction

plan provided.” Id.

However, in the next paragraph of her complaint, Dr. Tucker

states that Dr. Asbury presented her with a letter listing more

than 30 cases which were being referred for peer review. See id.

at ¶ 39. Of those 30 cases, Dr. Tucker contends that more than

half of those “cases had previously been reviewed internally as

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part of the hospital’s standard credentialing process without any

issues having been revealed.” Id. Dr. Tucker alleges that

“[a]dditional reviews beyond that conducted during credentialing

and recredentialing was outside the normal practice” at PCH. Id.

Ultimately, documentation for twelve of Dr. Tucker’s cases

was sent for a peer review by the Greeley Company. See id. at ¶

40. Dr. Tucker maintains that the information sent to Greeley

was “incomplete, false, and misleading” and “included treatment

rendered by providers other than Tucker”. Id. at ¶ 41. Greeley

rendered an adverse peer review of Dr. Tucker based solely on the

information provided by PCH. See id. at ¶ 45.

As a result of the adverse peer review, Dr. Tucker was

prohibited from performing any surgeries at PCH and “was told

that there were persons who never wanted her to practice medicine

again.” Id. at ¶ 46. According to Dr. Tucker, PCH’s bylaws

“dictated that an investigation be undertaken” but that one never

occurred. Id. at ¶ 47.

Dr. Tucker alleges that the Hospital Defendants “made, or

caused to be made, false and adverse reports about [her] to the

National Practitioner Data Bank (NPDB).”1 Id. at ¶ 49. Those

1 “The National Practitioner Data Bank (“NPDB”) is ‘a

web-based repository of reports containing information on medical

malpractice payments and certain adverse actions related to

health care practitioners, providers, and suppliers,’ and is ‘a

workforce tool that prevents practitioners from moving state to

state without disclosure or discovery of previous damaging

performance.’” Obi v. Exeter Health Res., Inc., Civil No. 18-cv-

4

reports to the NPDB “damaged Dr. Tucker in her professional

reputation, resulted in diminished professional opportunities for

her, and led to a false conclusion that Dr. Tucker’s complication

rate for OB/GYN care was above the national average, when, in

fact, it was below the national average.” Id. at ¶ 50.

Dr. Tucker alleges that the Hospital Defendants “prepared a

letter recommending to the Hospital Board of Directors that terms

be imposed upon Dr. Tucker substantially restricting her surgical

privileges and allowing her to only perform unrestricted vaginal

deliveries”. Id. at ¶ 54. That letter was never delivered;

however, “[g]iven the impossible restrictions unreasonably placed

on her by the Hospital Defendants, essentially prohibiting her

from practicing medicine, Dr. Tucker left her position with the

Hospital.” Id. at ¶ 57. Afterwards, the Hospital Defendants

reported to the NPDB the recommendations that had been included

in its letter to the Board which, according to Dr. Tucker, was

improper under the NPDB’s procedures and policies. See id. at ¶¶

58-61.

Dr. Tucker also alleges that the Hospital Defendants sent an

adverse report to the West Virginia Osteopathic Board of Medicine

which was based upon the unreliable Greeley adverse peer review.

550-SM, 2018 WL 5557062, at *1 n.1 (D.N.H. Oct. 2, 2018), report

and recommendation adopted, 2018 WL 5456503 (D.N.H. Oct. 27,

2018)(quoting U.S. Dep’t of Health & Human Servs., NPDB, About

Us, https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp (last

accessed Oct. 1, 2018)).

5

See id. at ¶¶ 63-64. “In response to the adverse report, Dr.

Tucker was forced to defend herself before the Osteopathic Board

incurring substantial cost and attorney’s fees.” Id. at ¶ 65.

Thereafter, Dr. Tucker was hired by the Veterans

Administration Medical Center (VAMC) in Beckley, West Virginia,

as its Chief of Staff. See id. at ¶ 66. Because of the reports

made to the NPDB, however, VAMC rescinded its offer to hire Dr.

Tucker as Chief of Staff. See id. at ¶ 68. According to Dr.

Tucker, “[d]efendants had another motive for seeking to prevent

[her] from being the Chief of Staff at the VAMC: PCH had been in

talks with the VAMC to become a primary referral hospital for the

VAMC in which it would receive approximately 40% of all referrals

for treatment from the VAMC.” Id. at ¶ 70. This referral

arrangement would result in “a great infusion of patients and

therefore money into PCH.” Id. As Chief of Staff, Dr. Tucker

would have to approve all referrals and “[g]iven how the Hospital

Defendants had treated Dr. Tucker, they expected that if Dr.

Tucker was Chief of Staff at the VAMC then she would not direct

referrals to PCH.” Id. at ¶ 72.

Ultimately, Dr. Tucker had to relocate to obtain employment

resulting in “great financial loss.” Id. at ¶¶ 75-76.

On March 28, 2019, Dr. Tucker filed a complaint against PCH

and the City of Princeton alleging violations of her First and

Fifth Amendment rights and asking for: 1) an award of damages to

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compensate her for her loss of income, loss of her medical

practice, and her emotional distress; 2) injunctive and

declaratory relief directing defendants to correct misinformation

previously reported to the NPDB, and 3) costs and attorney fees.

See ECF No. 1.

On July 8, 2019, Dr. Tucker moved to amend her complaint.

See ECF No. 10. That motion was granted and the Amended

Complaint was filed on July 25, 2019. See ECF No. 18. Named as

defendants are the City of Princeton, PCH, Jeffrey Lilley, Frank

Sinicrope, Joe C. Ellington, Jr., Wallace Jennings Horne, Wesley

L. Asbury, Marshall C. Long, Christopher Daniel. Jeffrey T. Gee,

Eric S. Hopkins, Amos Lane, Brandon M. Lingenfelter, Thomas

Charles Martin, Jr., Sherri B. Ross, Todd Smith, the National

Practitioner Data Bank, and Eric Porterfield. The individual

defendants, with the exception of Eric Porterfield, are all

alleged to be members of the MEC and are referred to as the “MEC

Defendants”.2 Throughout the First Amended Complaint, the MEC

Defendants, along with PCH and the City of Princeton are referred

to as the “Hospital Defendants”. The Amended Complaint includes

the following counts:

Count I: Violation of First Amendment Rights against

the Hospital Defendants;

2 Plaintiff does not indicate whether the individual

defendants are being sued in their individual or official

capacities.

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Count II: Violation of Due Process Property Rights

against the Hospital Defendants;

Count III: Violation of Due Process Liberty Interest

against the Hospital Defendants;

Count IV: Intentional Interference with Contract

against Eric Porterfield;

Count V: Intentional Interference with Contract or

Contract Expectancy against the Hospital

Defendants;

Count VI: Conspiracy to Injure in Trade or Profession

(presumably against all defendants); and

Count VII: Request for Injunctive Relief against the

NPDB.

See Amended Complaint at ¶¶ 78-115. The City of Princeton and

defendants Lingenfelter, Smith, and Porterfield were voluntarily

dismissed by plaintiff. See ECF Nos. 19, 43, and 45.

Pending before the court are: 1) a motion to dismiss filed

by the “hospital defendants”; 2) a motion to dismiss filed by the

“individual defendants”; and 3) National Practitioner Data Bank’s

motion to dismiss or, in the alternative, for summary judgment.

ECF Nos. 46, 48, and 64. Those motions have been fully briefed

and are ripe for decision.

II. Standard of Review

"[A] motion to dismiss for failure to state a claim for

relief should not be granted unless it appears to a certainty

that the plaintiff would be entitled to no relief under any state

of facts which could be proved in support of his claim." Rogers

v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.

8

1989) (citation omitted) (quoting Conley v. Gibson, 355 U.S. 41,

48 (1957), and Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.

1969)). "In considering a motion to dismiss, the court should

accept as true all well-pleaded allegations and should view the

complaint in a light most favorable to the plaintiff." Mylan

Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993);

see also Ibarra v. United States, 120 F.3d 474, 474 (4th Cir.

1997).3

In evaluating the sufficiency of a pleading, the cases of

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v.

Iqbal, 556 U.S. 662 (2009), provide guidance. When reviewing a

motion to dismiss, under Federal Rule of Civil Procedure

12(b)(6), for failure to state a claim upon which relief may be

granted, a court must determine whether the factual allegations

contained in the complaint “give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests,”

and, when accepted as true, “raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555 (quoting Conley v.

Gibson, 355 U.S. 41, 47 (1957); 5 Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)).

3 Plaintiff filed a motion to strike certain statements made

by defendants in their motions and memoranda that, according to

her, go beyond the allegations in the Amended Complaint. (ECF

No. 60). As the court has already stated, for purposes of

motions under Rule 12(b)(6), the allegations in the complaint are

taken as true. Therefore, plaintiff’s motion to strike is

unnecessary and DENIED as moot.

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“[O]nce a claim has been stated adequately, it may be supported

by showing any set of facts consistent with the allegations in

the complaint.” Twombly, 127 S. Ct. at 1969. As the Fourth

Circuit has explained, “to withstand a motion to dismiss, a

complaint must allege ‘enough facts to state a claim to relief

that is plausible on its face.’” Painter’s Mill Grille, LLC v.

Brown, 716 F.3d 342, 350 (4th Cir. 2013) (quoting Twombly, 550

U.S. at 570).

According to Iqbal and the interpretation given it by our

appeals court,

[L]egal conclusions, elements of a cause of action, and

bare assertions devoid of further factual enhancement

fail to constitute well-pled facts for Rule 12(b)(6)

purposes. See Iqbal, 129 S.Ct. at 1949. We also

decline to consider “unwarranted inferences,

unreasonable conclusions, or arguments.” Wahi v.

Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.

26 (4th Cir. 2009); see also Iqbal, 129 S. Ct. at

1951-52.

Ultimately, a complaint must contain “sufficient

factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Iqbal, 129

S.Ct. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

Facial plausibility is established once the factual

content of a complaint “allows the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged.” Id. In other words, the

complaint's factual allegations must produce an

inference of liability strong enough to nudge the

plaintiff's claims “‘across the line from conceivable

to plausible.’” Id. at 1952 (quoting Twombly, 550 U.S.

at 570, 127 S.Ct. 1955).

Satisfying this “context-specific” test does not

require “detailed factual allegations.” Id. at 1949-50

(quotations omitted). The complaint must, however,

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plead sufficient facts to allow a court, drawing on

“judicial experience and common sense,” to infer “more

than the mere possibility of misconduct.” Id. at 1950.

Without such “heft,” id. at 1947, the plaintiff's

claims cannot establish a valid entitlement to relief,

as facts that are “merely consistent with a defendant's

liability,” id. at 1949, fail to nudge claims “across

the line from conceivable to plausible.” Id. at 1951.

Nemet Chevrolet, LTD v. Consumeraffairs.com, Inc., 591 F.3d 250,

255-56 (4th Cir. 2009); see also Midgal v. Rowe Price-Fleming

Int’l, Inc., 248 F.3d 321, 326 (4th Cir. 2001) (“The presence of

a few conclusory legal terms does not insulate a complaint from

dismissal under Rule 12(b)(6) when the facts alleged in the

complaint cannot support the legal conclusion.”).

III. Analysis

A. Motion to Dismiss National Practitioner Data Bank

According to NPDB, plaintiff’s claims as to it should be

dismissed because: 1) plaintiff failed to exhaust her

administrative remedies under the Health Care Quality Improvement

Act of 1986 (“HCQIA”); and 2) plaintiff has failed to state a

claim against NPDB.

In her opposition to NPDB’s motion, plaintiff alleges that

“NPDB participated in a conspiracy to injure [her] in her

profession.” ECF No. 85 at 7. She further states that, although

she “does not allege that the NPDB possessed the animus or

personal malice against her that did other Defendants, but the

NPD[B], regardless of how unwittingly, has participated in

damaging Dr. Tucker in her profession.” Id. According to

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plaintiff, “the NPDB was a necessary party to the purpose of

injuring Dr. Tucker in her profession.” Id. at 8.

West Virginia recognizes the tort of civil

conspiracy as a cause of action. Jane Doe-1 v. Corp.

of President of The Church of Jesus Christ of

Latter-day Saints, 239 W. Va. 428, 801 S.E.2d 443, 458

(2017). “A civil conspiracy is a combination of two or

more persons by concerted action to accomplish an

unlawful purpose or to accomplish some purpose, not in

itself unlawful, by unlawful means.” Syl. Pt. 8, Dunn

v. Rockwell, 225 W. Va. 43, 689 S.E.2d 255, 259 (2009).

The cause of action is not created by the conspiracy

itself but by the wrongful acts done by the defendants

to injure the plaintiff. Id. “A civil conspiracy is

not a per se, stand-alone cause of action; it is

instead a legal doctrine under which liability for a

tort may be imposed on people who did not actually

commit a tort themselves but who shared a common plan

for its commission with the actual perpetrator(s).”

Syl. Pt. 9, Dunn, 689 S.E.2d at 259. A civil

conspiracy must therefore be based on an underlying

tort or wrong. O'Dell v. Stegall, 226 W. Va. 590, 703

S.E.2d 561, 596 (2010) (citing Dunn, 689 S.E.2d 255).

In order for a civil conspiracy to be actionable,

the plaintiff must prove that the defendants have

committed “some wrongful act or have committed a lawful

act in an unlawful manner to the injury of the

plaintiff.” Dunn, 689 S.E.2d at 268–69. A civil

conspiracy may be proven by circumstantial evidence.

See Jane Doe-1, 801 S.E.2d at 473. Although a civil

conspiracy claim requires an underlying tort or harm

resulting from the conspiracy, the conspiracy claim may

be disposed of separately from the underlying cause of

action. See id. at 458.

Blankenship v. Napolitano, 451 F. Supp. 3d 596, 620-21 (S.D.W.

Va. 2020) (Copenhaver, J.).

Unfortunately for plaintiff, her complaint is wholly devoid

of any specific allegation regarding the actions of NPDB.

Although plaintiff makes a general allegation that defendants

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“conspired” to injure her in her trade and profession, she fails

to provide any facts about NPDB’s conduct to support this

allegation. Her complaint does not describe any interaction

between NPDB and the other defendants to support a conspiracy

claim involving NPDB. Therefore, the court finds that plaintiff

has failed to state a plausible claim against NPDB because she

does not plead “factual content that allows the court to draw the

reasonable inference that [NPDB] is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 555 U.S. at

556); see also Weller v. Dep't of Soc. Servs. for City of Balt.,

901 F.2d 387, 397 (4th Cir. 1990) (affirming dismissal for

failure to state a claim as to two defendants because there were

no allegations against them).

For these reasons, the court GRANTS NPDB’s motion to

dismiss.4

B. Motion to Dismiss Individual Defendants

Defendants Lilley, Sinicrope, Ellington, Horne, Asbury,

Long, Daniel, Gee, Hopkins, Lane, Martin, and Ross have moved for

dismissal of the claims against them arguing that “[t]his group

pleading does not give the Individual Defendants fair notice of

what Dr. Tucker claims they did to cause the alleged harm she

suffered.” ECF No. 49 at 4. As noted above, plaintiff asserts

4 The court does not reach the other grounds for dismissal

advanced by the NPDB.

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that these defendants are all members of PCH’s Medical Executive

Committee and refers to them collectively as the “MEC

Defendants”. See Amended Complaint at ¶¶ 7 and 20.5 The

Complaint makes no allegations regarding how the MEC allegedly

harmed plaintiff. After asserting that she will refer to PCH and

the MEC Defendants collectively as the “Hospital Defendants”,

plaintiff goes on throughout the remainder of her Complaint to

refer only to “Hospital Defendants”. While plaintiff does allege

that PCH’s “clinical policies, procedures, and customs are

controlled by the Chief Medical Officer, Chief of Staff, and the

Medical Executive Committee,” id. at ¶ 19, the phrase “MEC

defendants” is not mentioned again.

As far as allegations against the specific individuals noted

above, plaintiff alleges:

36. On March 29, 2017, Dr. Tucker was directed to the

hospital administrator’s office to meet with Dr.

Wes Asbury (Chief of Staff and member of the MEC)

and Dr. Wallace Horne (Chief Medical Officer, Vice

President of Medical Affairs and member of the

MEC). They did not give Dr. Tucker prior notice

of the meeting nor any information regarding its

subject matter.

37. Dr. Asbury and Dr. Horne sought to restrict Dr.

Tucker from performing any surgical procedures,

but agreed she could continue to perform C-

sections and outpatient surgeries other than

hysterectomies or other major medical procedures.

5 In their motion, defendants assert that Lilley, Sinicrope,

Hopkins, and Horne are not even members of the MEC. See ECF No.

49 at 3 n.4. Of course, as discussed above, the court has

accepted the allegations in the Amended Complaint as true.

14

No explanation was provided, deficiencies

explained, or correction plan provided.

* * *

39. During the March 29, 2019 meeting, Dr. Asbury

presented Dr. Tucker with a letter and stated,

“just read it.” The letter referenced

“complications” and listed more than 30 cases

which were referred for peer review.

Id. at ¶¶ 36, 37, and 39.

The only other mention of individual defendants is the

following: “Defendants Ellington and Lingenfelter received great

benefit from Dr. Tucker’s ousting as their medical practices

absorbed Dr. Tucker’s patients resulting [in] great profits to

them.” Id. at ¶ 53.

As the foregoing shows, the only arguable allegations

against any of the individual defendants are the actions

attributed to Drs. Asbury and Horne. Plaintiff does not

attribute any specific conduct to the remaining individual

defendants, or the MEC for that matter. Therefore, she fails to

plead facts to allow the court to draw the reasonable inferences

that these defendants are liable for the wrongful conduct

alleged. Accordingly, the motion to dismiss (ECF No. 48) is

GRANTED as to defendants Lilley, Sinicrope, Ellington, Long,

Daniel, Gee, Hopkins, Lane, Martin, and Ross. However, the

specific allegations against Drs. Horne and Asbury, along with

the reasonable inferences that flow therefrom, are sufficient to

withstand dismissal at this juncture.

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The individual defendants also moved for dismissal on

statute of limitations grounds. “Ordinarily, a defense based on

the statute of limitations must be raised by the defendant

through an affirmative defense, and the burden of establishing

the affirmative defense rests on the defendant.” Goodman v.

Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (internal

citation omitted). “It follows, therefore, that a motion to

dismiss filed under Federal Rule of Civil Procedure 12(b)(6),

which tests the sufficiency of the complaint, generally cannot

reach the merits of an affirmative defense, such as the defense

that the plaintiff’s claim is time-barred.” Id.; see also

Eastern Shore Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213

F. 3d 175, 185 (4th Cir. 2000) (“A Rule 12(b)(6) motion, however,

does not generally invite an analysis of potential defenses to

the claims asserted in the complaint.”). It is only “in the

relatively rare circumstances where facts sufficient to rule on

an affirmative defense are alleged in the complaint” that such a

defense may be reached by a 12(b)(6) motion. Id. Indeed, this

exception applies only “if all facts necessary to the affirmative

defense clearly appear[ ] on the face of the complaint.” Id.

(quoting Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d

244, 250 (4th Cir. 1993)).

Here, the facts necessary to establish the affirmative

defense of the statute of limitations do not clearly appear on

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the face of the Amended Complaint. The only specific date that

appears in the Complaint is March 29, 2017. While plaintiff

contends defendants took certain actions on that date, she goes

on to assert a number of other things that allegedly were done to

her after that date. Those further allegations are not tied to

specific dates. There may well be a statute of limitations

problem with plaintiff’s complaint. However, because the facts

in support of such a defense do not appear plainly on the face of

the complaint, the court cannot resolve it at this juncture.

C. Motion to Dismiss Hospital Defendants

The so-called Hospital Defendants, comprised of the

individual defendants and PCH, also filed a motion to dismiss on

a number of grounds. With respect to the remaining defendants,

PCH, Asbury, and Horne, the court considers defendants’

arguments.

1. Adverse employment action

“To establish a claim of First Amendment retaliation, a

plaintiff must show that (1) [s]he engaged in protected First

Amendment activity; (2) the defendant took action that adversely

affect h[er] First Amendment rights; and (3) there was a causal

relationship between the protected speech and the adverse

action.” Braswell v. Haywood Reg. Med. Center, 234 F. App’x 47,

52 (4th Cir. 2007) (citing Suarez Corp. Indus. v. McGraw, 202

F.3d 676, 685 (4th Cir. 2000)). According to defendants, Count I

17

must fail because plaintiff does not allege that the Hospital

Defendants took an adverse employment action against her

resulting in a deprivation of a valuable benefit.

According to the Amended Complaint, after speaking out about

abortion and suboxone treatment, defendants “determined to

destroy Tucker’s medical practice and to remove her from her

position at the Hospital.” Amended Complaint at ¶ 35. On March

29, 2017, her surgical privileges were restricted. See id. at ¶

37. Dr. Tucker was also informed that a number of her cases,

that had previously been reviewed internally without any issues

having being revealed, were being referred for peer review. See

id. at ¶ 39. According to Dr. Tucker, this was “outside of the

normal practice” at PCH. Id. Ultimately, defendants sent twelve

cases for peer review and, according to plaintiff, the

information provided “was incomplete, false, and misleading.”

Id. at ¶ 41. Once the adverse peer review was received,

defendants prohibited Dr. Tucker “from performing any surgeries”

at PCH and removed her from the “schedule for coverage of C-

section procedures.” Id. at ¶¶ 46 and 51.

The court finds that plaintiff has alleged that she suffered

an adverse action sufficient to withstand summary dismissal.

While defendants argue that Dr. Tucker’s staff privileges were

never restricted, the court cannot resolve this issue solely by

reference to the complaint. For example, Dr. Tucker alleges that

18

she was prohibited from performing certain types of surgeries.

Furthermore, while “the Fourth Circuit has not determined whether

an investigation, standing alone, can give rise to a First

Amendment retaliation claim,” Roncales v. County of Henrico, 451

F. Supp. 3d 480, 483 n.13 (E.D. Va. 2020) (internal citation

omitted), there is some authority to suggest that it can. See

Alexander v. City of Greensboro, No. 1:09-CV-934, 2011 WL 13857,

at *16 n.15 (M.D.N.C. Jan. 4, 2011) (“An investigation may be a

sufficient adverse action in the context of a retaliation

claim.”). In this case, Dr. Tucker alleges more than a mere

investigation. She claims that she was subject to a one-sided

retaliatory investigation and that, following that investigation,

she was prohibited from performing surgeries on any kind at PCH.

Plaintiff has stated a First Amendment retaliation claim.

2. Constitutionally protected property interest

Defendants argue that they did not deprive Dr. Tucker of any

property interest and, therefore, the court should dismiss Count

II. While acknowledging that “[a] physician has a property

interest in his or her privileges”, defendants argue that

prohibiting Dr. Tucker from performing surgeries “is not the same

as restricting or terminating Dr. Tucker’s privileges.” ECF No.

47 at 9. However, at least one court has concluded otherwise.

See Hamad v. Nassau Cty. Med. Center, 191 F. Supp. 2d 286, 299

(E.D.N.Y. 2000) (“[T]he Court notes that surgical privileges

19

constitute a property interest for purposes of due process and

that harm to reputation combined with the deprivation of a

property interest in surgical privileges give rise to a due

process liberty interest.”). Ultimately, with the benefit of a

more-developed record and details regarding Dr. Tucker’s

privileges, the court may accept defendants’ argument. However,

at this juncture, plaintiff has sufficiently alleged the

deprivation of a constitutionally protected property interest.

3. Liberty interest

In Count III, Dr. Tucker alleges that she “has suffered and

will continue to suffer injury to her good name, reputation,

honor and/or integrity, and will continue to suffer pecuniary

loss, loss of employment, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life and

other non-pecuniary loss.” ECF No. 18 at 93. Defendants argue

that Count III should be dismissed because “mere injury to

reputation, even if defamatory, does not constitute the

deprivation of a liberty interest.” ECF No. 67 at 3. Defendants

go on to cite cases that have held that submission of an

erroneous NPDB report is not a deprivation of a protected

interest. See id.

In her complaint, plaintiff does not tie Count III solely to

submission of the NPDB report. According to plaintiff, she was

denied procedural due process when defendants’ actions threatened

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her liberty interest in her reputation and choice of occupation.

ECF No. 62 at 8. The United States Court of Appeals for the

Fourth Circuit has acknowledged that a person has a “right to due

process ‘[w]here a person's good name, reputation, honor, or

integrity is at stake because of what the government is doing to

him.’” Sciolino v. City of Newport News, 480 F.3d 642, 646 (4th

Cir. 2007) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437

(1971)). In Sciolino, the court noted that “an individual’s

liberty interest in his reputation is only sufficient ‘to invoke

the procedural protection of the Due Process Clause’ if combined

with ‘some more tangible interest [] such as employment’”. Id.

(quoting Paul v. Davis, 424 U.S. 693, 701 (1976)). In Sciolino,

the court could not conclude whether the process given to

Sciolino in conjunction with his termination “fulfilled the

requirements of the Due Process Clause.” Id. at n.1.

Like the court in Sciolino, at this juncture, the court

cannot properly evaluate whether Dr. Tucker was given the

appropriate notice and opportunity to be heard. Therefore, the

motion to dismiss Count III is denied.

4. Immunity

“Congress enacted the HCQIA afer a finding that there was an

‘increasing occurrence of medical malpractice and the need to

improve the quality of medical care,’ including, ‘a national need

to restrict the ability of incompetent physicians to move from

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State to State without disclosure or discovery of the physician’s

previous damaging or incompetent performance.’” Robinson v. East

Carolina Univ., 329 F. Supp. 3d 156, 174 (E.D.N.C. 2018) (quoting

42 U.S.C. § 11101(1-2)). The HCQIA provides immunity for reports

made to the NPDB pursuant to 42 U.S.C. § 11137. The Act provides

in pertinent part:

(c) Relief from liability for reporting

No person or entity (including the agency designated

under section 11134(b) of this title) shall be held

liable in any civil action with respect to any report

made under this subchapter (including information

provided under subsection (a) without knowledge of the

falsity of the information contained in the report.

42 U.S.C. § 11137(c). “Section 11137(c) immunity is complete:

it provides immunity from both damages and suits for injunctive

relief. . . .” Robinson, 329 F. Supp. 3d at 175 n.14. “Thus,

immunity for reporting exists as a matter of law unless there is

sufficient evidence for a jury to conclude the report was false

and the reporting party knew it was false.” Brown v.

Presbyterian Healthcare Servs., 101 F.3d 1324, 1334 (10th Cir.

1996).

Dr. Tucker alleges that defendants made, or caused to be

made, “false and adverse reports about Dr. Tucker to the National

Practitioner Data Bank”. ECF No. 18 at 49. She also contends

that defendants made the reports to NPDB with actual malice.

Construing those allegations in the light most favorable to Dr.

Tucker, as the court must do on a motion to dismiss, it is

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reasonable to infer that the information provided to NPDB was

false and that defendants knew the information provided to NPDB

was false. Therefore, at this juncture, they are not entitled to

immunity.

5. Civil Conspiracy

As for plaintiff’s civil conspiracy claim, defendants argue

that it should be dismissed because plaintiff does not allege a

combination of two or more persons conspired against her.

According to defendants, there is no conspiracy because a

corporation and its agents cannot form a conspiracy.

It is true that “agents and employees of a corporation

‘cannot conspire with their corporate principal or employer where

they act in their official capacities on behalf of the

corporation and not as individuals for their individual

advantage.’” Lee v. Allstate Ins. Co., Civil Action No. 5:10CV41

(STAMP), 2010 WL 4806886, at *3 (N.D.W. Va. Nov. 18, 2010)

(quoting Cook v. Heck's Inc., 342 S.E.2d 453, 460 (W. Va. 1986)).

However, plaintiff at least arguably alleges that defendants’

motives were personal and not entirely related to their official

capacities. For this reason, this issue is better resolved by a

motion for summary judgment.

Defendants also argue that the civil conspiracy claim must

be dismissed because plaintiff cannot allege an underlying tort.

As discussed earlier:

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A civil conspiracy is not a per se, stand-alone cause

of action; it is instead a legal doctrine under which

liability for a tort may be imposed on people who did

not actually commit a tort themselves but who shared a

common plan for its commission with the actual

perpetrator(s). . . . A civil conspiracy must

therefore be based on an underlying tort or wrong.

O'Dell v. Stegall, 226 W. Va. 590, 703 S.E.2d 561, 596

(2010).

Blankenship v. Napolitano, 451 F. Supp. 3d 596, 620 (S.D.W. Va.

2020) (Copenhaver, J.).

In this case, because Count V, the Intentional Interference

with Contract or Contract Expectancy claim, has not been

dismissed and could arguably serve as an underlying tort in

support of plaintiff’s civil conspiracy claim, the court declines

to dismiss the civil conspiracy claim at this juncture.6

IV. Conclusion

For the reasons expressed herein:

1) the motion to dismiss filed by the “hospital

defendants” (ECF No. 46) is DENIED;

2) the motion to dismiss filed by the “individual

defendants” (ECF No. 48) is GRANTED as to defendants

Lilley, Sinicrope, Ellington, Long, Daniel, Gee,

Hopkins, Lane, Martin, and Ross;

3) National Practitioner Data Bank’s motion to dismiss or,

in the alternative, for summary judgment (ECF No. 64)

is GRANTED; and

4) Plaintiff’s motion to strike (ECF No. 60) is DENIED as

moot.

6 The court agrees with defendant that there is no tort for

injuring a person’s trade or business and plaintiff has failed to

cite any legal authority that West Virginia recognizes such a

tort.

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In her opposition memoranda to the motions to dismiss,

plaintiff requests leave to amend her Amended Complaint in the

event the court grants defendants’ motions. Plaintiff did not

file a motion for leave to amend, submit a proposed second

amended complaint, or indicate what changes she would make to an

amended complaint that would survive a motion to dismiss.

Therefore, the court is unable to properly evaluate whether

plaintiff can satisfy the standard for granting leave to amend

under Federal Rule of Civil Procedure 15(a). For this reason,

her request for leave to amend is DENIED. See Cozzarelli v.

Inspire Pharms., Inc., 549 F.3d 618, 630-31 (4th Cir. 2008) (no

abuse of discretion in declining to grant leave to amend where

plaintiffs did not file a motion, but rather, only asked for

leave to amend in their opposition to motion to dismiss and

objections to magistrate judge’s report).

The Clerk is directed to send copies of this Memorandum

Opinion and Order to all counsel of record.

IT IS SO ORDERED this the 30th day of September, 2020

BNTER:

Rautd A Dols

David A. Faber

Senior United States District Judge

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