Robinson v. East Carolina University et al

Filing 90

ORDER - The court GRANTS defendant MagMutual's motion to dismiss for lack of subject-matter jurisdiction. 78 . The court GRANTS IN PART and DENIES IN PART ECU defendants' motions to dismiss 73 and GRANTS the parti es' motions to seal 39 47 82 . Plaintiff's amended motion for preliminary injunction 36 is DENIED. Plaintiff's seventh claim for defamation, as alleged in the amended complaint, against defendant Williams in his individual capacity, is allowed to proceed. Pursuant to Federal Rule of Civil Procedure 12(a)(4)(A), a responsive pleading from Defendant Williams is due fourteen days hereof. Signed by District Judge Louise Wood Flanagan on 8/3/2018. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:17-CV-112-FL

BARBARA L. ROBINSON,
Plaintiff,
v.
EAST CAROLINA UNIVERSITY; JOHN
MARK WILLIAMS M.D., in his
individual capacity and his official
capacity; MARK D. IANNETTONI M.D.,
in his individual capacity and his official
capacity; JODY COOK MS, RN, CPHRM,
in her individual capacity and her official
capacity; and MAGMUTUAL
INSURANCE COMPANY d/b/a
MagMutual Insurance Agency, LLC,
Defendants.

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ORDER
(SEALED)1

This matter is before the court on plaintiff’s amended motion for preliminary injunction (DE
36); defendants East Carolina University, Jody Cook (“Cook”), Mark D. Iannettoni (“Iannettoni”),
and John Mark Williams’s (“Williams”) (collectively, “ECU defendants”) motion to dismiss (DE
73); defendant MagMutual Insurance Company’s (“MagMutual”) motion to dismiss (DE 78); and
the parties’ motions to seal various documents (DE 39; DE 47; DE 82). The issues raised have been
fully briefed and are ripe for adjudication. For the following reasons, the court grants defendant

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Where discovery was conducted pursuant to a consent protective order and stipulation of confidentiality,
certain filings on which the parties rely in furtherance of their motions were sealed. Within 14 days, the parties jointly
shall return to the court by U.S. Mail, addressed to the case manager, a copy of this order marked to reflect any perceived
necessary redactions. Upon the court’s inspection and approval, redacted copy of this sealed order will be made a part
of the public record. If the parties jointly perceive no redactions are necessary, within 14 days joint notice to this effect
shall be filed on the docket and, thereafter, this order will be unsealed.

MagMutual’s motion to dismiss, grants in part and denies in part ECU defendants’ motion to
dismiss, grants the parties’ motions to seal, and denies plaintiff’s motion for preliminary injunction.
STATEMENT OF THE CASE
Plaintiff commenced this action by complaint filed August 15, 2017, together with motion
for temporary restraining order and preliminary injunction. On September 1, 2017, the court denied
without prejudice plaintiff’s motion for temporary restraining order and preliminary injunction,
directing plaintiff to file an amended motion for preliminary injunction on or before September 22,
2017, “including specification of the injunctive relief sought and the defendants against whom the
relief is sought.” (DE 21 at 4-5). On September 12, 2017, the court granted the parties’ consent
motion for protective order, and thereafter, plaintiff filed the instant amended motion for preliminary
injunction on September 26, 2017, following the court’s grant of an extension of time so to do.
Plaintiff seeks injunctive relief concerning a medical malpractice payment report related to
a sternotomy procedure performed on April 14, 2015, submitted by defendant MagMutual to the
National Practitioner Data Bank (“NPDB”), wherein plaintiff is allegedly falsely identified as the
person responsible for performing the procedure. Plaintiff requests an order requiring defendant
MagMutual void the NPDB report and take steps to render the effects of submitting the report null,
as well as an order prohibiting defendant MagMutual from filing any additional NPDB reports
concerning the procedure at issue during the pendency of this litigation. (DE 36 at 1-3; DE 55 at
8 (clarifying injunctive request is solely against defendant MagMutual)).
Plaintiff relies upon her own affidavit together with that of Dr. Alan P. Kypson, North
Carolina licensed physician. (DE 37-1, DE 37-2). She also relies upon certain documentary
evidence, the authenticity of which appears undisputed. These materials include NPDB guidebook

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excerpts and pamphlet concerning North Carolina Medical Board (“NCMB”) investigations. (DE
37-5, DE 37-6). Also included, and filed under seal, are the following documents regarding the
settlement process with patient regarding the April 14, 2015 procedure and ensuing NPDB and
North Carolina medical malpractice reports: 1) correspondence among plaintiff and others including
defendants Cook and MagMutual concerning both settlement process and ensuing reports;
2) correspondence among patient and others including defendants Cook and MagMutual concerning
the settlement process; 3) the confidential settlement agreement and release; 4) the NPDB and North
Carolina medical malpractice reports; and 5) a letter from the North Carolina Medical Board to
plaintiff concerning its review of the settlement made on plaintiff’s behalf. (DE 38, DE 38-1, DE
38-2, DE 38-3; DE 38-4). Additionally, the following documents are included, also filed under seal:
patient’s medical charts dating September 3, 2014 through May 2, 2016; job posting advertisement
for clinical instructor at East Carolina University; and correspondence from defendant Iannettoni
to plaintiff concerning the termination of plaintiff’s employment at East Carolina University. (DE
38, DE 38-1, DE 38-3).
Thereafter, defendants filed motions to dismiss; however, plaintiff subsequently filed an
amended complaint on November 7, 2017, rendering defendants’ motions moot. Plaintiff’s claims
as found in her amended complaint relate to 1) the NPDB report and 2) gender discrimination related
to her employment at ECU. More specifically, plaintiff asserts seven claims for relief, which are
as follows:
1)
Claims against defendants Williams, Iannettoni, and Cook, in their official
capacities, and against defendant MagMutual, for declaratory and injunctive relief;
2)
Claims against defendants Williams, Iannettoni, and Cook, in their individual
capacities, for violations of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983
for unequal treatment under the law;
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3)
Claim against defendant Cook, in her individual capacity, for violation of the
Fourteenth Amendment pursuant to 42 U.S.C. § 1983 for deprivation of due process
rights;
4)
Claim against defendant MagMutual for unfair and deceptive practices act,
in violation of N.C. Gen. Stat. § 75-1.1 et seq. (“UDPA”);
5)
Claims against defendant MagMutual for bad faith breach of contract and
constructive fraud;
6)
Claims against defendants Cook, in her individual capacity, and defendant
MagMutual, for civil conspiracy; and
7)

Claim against defendant Williams in his individual capacity for defamation.

(Am. Compl. (DE 67) at 23-38).
Regarding plaintiff’s first claim for declaratory and injunctive relief, plaintiff requests the
court:
1)
Declare that ECU’s investigation concerning the patient’s claim resulting
from the sternotomy performed on April 14, 2015 was a biased and incomplete
investigation, that the ECU Defendants’ conduct was unlawful, and that the
subsequent findings are invalid and unjustified.
2)
Declare that the report sent to the NPDB finding that Dr. Robinson was
responsible for performing an unnecessary surgical procedure on April 14, 2015 is
false.
3)
Declare that Dr. Robinson’s role in the April 14, 2015 sternotomy does not
constitute a reportable event under the rules of the NPDB.
4)
Declare that the Medical Malpractice Payment Report and North Carolina
Medical Board Malpractice Payment Report generated as a result of Defendant
ECU’s investigation and submitted to the National Practitioner Data Bank and the
North Carolina Medical Board was improvidently issued.
5)
Declare that Plaintiff’s status with the National Practitioner Data Bank and
the medical licensing agencies is nunc pro tunc to August 9, 2017 and that Plaintiff
may truthfully respond in the negative to questions about whether she has been the
subject of a medical malpractice payment report, or, whether a medical malpractice
payment has been made on her behalf, as though Defendants’ actions leading to the
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August 10, 2017 medical malpractice payment report and notifications to the state
medical licensing agencies identified had not occurred, ab initio.
6)
Issue an injunction enjoining the ECU Defendants and MagMutual Insurance
Company to take all necessary steps to void the report submitted on August 10, 2017.
7)
Issue an injunction enjoining the ECU Defendants and MagMutual Insurance
Company to take all necessary steps to void the reports submitted to any state
medical licensing authority.
(Id. at 23-24).
Plaintiff asserts jurisdiction pursuant to 28 U.S.C. §§1331 and 1332. (Id. at 2).2 On
December 5, 2017, both ECU defendants and defendant MagMutual filed the instant motions to
dismiss plaintiff’s amended complaint. Both groups of defendants assert in part that the court lacks
jurisdiction over plaintiff’s claims related to the NPDB report because 1) plaintiff failed to exhaust
her administrative remedies regarding the NPDB report and 2) defendants have immunity under the
Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. § 11101 et seq., under which the
report was made to the NPDB. Plaintiff filed responses to both motions to dismiss on January 9,
2018, to which both defendants filed replies on January 23, 2018.
STATEMENT OF THE FACTS
The facts alleged in the amended complaint may be summarized as follows.
A.

Allegations Related to the NPDB Report
Between July 2014 and October 2016 plaintiff was employed in the Department of

Cardiovascular Surgery at the Brody School of Medicine at East Carolina University (“ECU”) as

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Plaintiff is a resident of Pelham, New Hampshire. Defendant East Carolina University is a constituent
member of the University of North Carolina organized pursuant to N.C. Gen. Stat. §116 et. seq. Defendants Williams,
Iannettoni, and Cook are citizens and residents of Pitt County, North Carolina. Defendant MagMutual is a corporation
organized and existing under the laws of the state of Georgia. Further, the amount in controversy exceeds $75,000.
Accordingly, this court has appropriate subject-matter jurisdiction pursuant to 28 U.S.C. § 1332.

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a clinical fellow. Plaintiff assisted the attending surgeons, including defendant Williams, who
treated patients at the East Carolina Heart Institute, a clinical practice associated with ECU’s School
of Medicine and Vidant Medical Center in Greenville, North Carolina.
According to plaintiff, although she is a well-trained and experienced physician, her role as
a fellow in the East Carolina Heart Institute was that of a trainee in a graduate health professions
education program. Plaintiff was authorized to perform clinical duties and responsibilities within
the context of the graduate educational program and thus, could not and did not, perform clinical
duties without the direction and supervision of attending physicians.
On April 14, 2015, plaintiff assisted defendant Williams in the surgical case of a patient who
was scheduled for an aortic valve replacement (hereinafter, “the patient”). Defendant Williams was
the attending surgeon who was identified on all medical records as the patient’s primary surgeon.
Prior to surgery, the patient had been examined by at least two other physicians who had
reviewed echocardiogram studies, including a transesophageal echocardiogram (“TEE”), and agreed
that her diagnosis was severe aortic valve insufficiency and that she required valve replacement
surgery. Defendant Williams saw his patient on April 6, 2015, to discuss her “upcoming aortic valve
replacement.” (Am. Compl. (DE 67) at 5).
The day before the surgery, plaintiff confirmed that the patient’s cardiologist and defendant
Williams had reviewed the pre-operative studies and were confident that the patient should undergo
the planned aortic valve replacement surgery. Pursuant to the usual and customary practice, a TEE
was performed on the day of the surgery by an anesthesiologist once the patient was fully
anesthetized. Before entering the operating room, plaintiff advised defendant Williams that the
patient was fully anesthetized and ready for him to begin the procedure. Defendant Williams

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instructed plaintiff to begin the sternotomy. Defendant Williams came to the operating room
approximately one hour after he had instructed plaintiff to begin the procedure. Approximately
forty-five minutes after that, the anesthesiologist returned to the operating room and, at this point,
defendant Williams read the TEE report. A total of sixty-five minutes elapsed between the time the
anesthesiologist visualized the patient’s heart valves with his probe and the time that the TEE report
was brought to the operating room.
When the TEE report was brought to the operating room, the report differed with what the
other reports had concluded and indicated that the patient’s aortic valve insufficiency was
“moderate,” not severe, suggesting that an aortic valve replacement should not be performed. (Id.
at 6). Defendant Williams elected to stop the procedure.
On or around April 16, 2015, before she was discharged from Vidant Medical Center, the
patient complained about her treatment to risk management at Vidant Medical Center. Responding
to the patient’s concerns, Vidant’s risk manager directed the patient to the risk management
department at ECU School of Medicine. None of plaintiff’s supervisors, nor anyone from defendant
ECU’s risk management department, spoke with plaintiff about this patient’s complaint during the
time that plaintiff was employed as a clinical fellow. No disciplinary action was taken or suggested
against plaintiff and no one suggested that she had acted without the authority of her attending
physician.
Subsequent to plaintiff leaving her fellowship at ECU, on or around November 12, 2016, the
patient communicated with defendant Cook, ECU’s director of risk management, through counsel,
and asserted a claim for personal injuries “against ECU” associated with the halted procedure. (Id.).
A follow-up letter sent to defendant Cook stated that among the patient’s complaints was a

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complaint about an “unnecessary median sternotomy performed by Mark J. Williams, M.D.” (Id.).
In addition, the complaint included damages associated with the failure to make a proper diagnosis
of the patient’s condition prior to the hospital admission.
After receiving the November 12, 2016 communication, the patient’s claim was referred to
defendant ECU’s insurance company, defendant MagMutual, who provided insurance coverage for
this claim under Policy Number PSL 1700794-15 (“2015-2016 policy”).3 ECU is the named insured
on the policy and plaintiff, defendant Williams, and the other ECU practitioners involved in this
patient’s case, by virtue of their employment with ECU, are also insureds under this policy.
ECU’s policy with MagMutual is a “claims-made and reported policy,” applicable to claims
first made and incidents first reported to MagMutual by ECU during the policy period. (DE 75 at
16). Plaintiff alleges as of July 1, 2015, individual physicians insured under ECU’s policy with
MagMutual did not have the right to consent to settlement. (Am. Compl. (DE 67) at 6-7; DE 75 at
18, 41, 75 (“We will not settle the claim without the prior consent of the individual designated by
the organization listed in the ‘Policy issued to’ section of the Declarations page.”); id. at 5 (under
the “policy issued to” section of the declarations page, the 2015-2016 policy identifies “The Brody
School of Medicine, Attn: Jody Cook—Dir Risk Management.”)).4
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It is well established that the court “may consider documents attached as exhibits to the complaint, as well
as any documents attached to the motion to dismiss, so long as those documents were integral to the complaint and are
authentic.” Mason v. Mach. Zone, Inc., 851 F.3d 315, 317n.2 (4th Cir. 2017). Here, plaintiff references in the amended
complaint the two insurance policies that ECU defendants attach to their motion to dismiss, (Am. Compl. (DE 67) at 7),
and does not challenge their authenticity. Thus, the court can consider the insurance policies, found at DE 75 (“20152016 policy”) and DE 76 (“2014-2015 policy”), attached to ECU defendants’ motion to dismiss.
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Plaintiff in her amended complaint asserts in effect that the policy at issue is the 2014-2015 policy, not the
2015-2016 policy and that the 2014-2015 policy required defendant MagMutual to obtain her consent before settling
any claim involving her. (Am. Compl. (DE 67) at 7). However, neither policy required defendant MagMutual to obtain
plaintiff’s consent before settling any claim involving her, which plaintiff apparently concedes in her response to
defendant MagMutual’s motion to dismiss. (See DE 87 at 27; DE 76 at 18, 30, 44 (“We will not settle any claim against
you without the consent of the individual designated by the Program . . . .”); 5 (“Under the “Policy Issued To” section
of the declarations page, the 2014-2015 policy identifies “The Brody School of Medicine, Attn: Jody Cook—Dir Risk

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In December 2016, defendant MagMutual’s adjuster contacted plaintiff and notified her that
they were reviewing the April 14, 2015 “incident.” (Am. Compl. (DE 67) at 7). The adjuster told
plaintiff not to discuss the matter with anyone other than him, another MagMutual representative,
or risk management staff at ECU. On December 22, 2016, January 24, 2017, February 28, 2017, and
April 6, 2017, defendant MagMutual’s claims adjuster acknowledged to the patient’s attorney that
the claim was under review. Plaintiff’s name was not mentioned in any of these exchanges.
The patient’s attorney stated that he had not obtained an expert review of the alleged
negligence, having spoken only “informally” with an expert, and, according to plaintiff, no expert
review was provided, or required to be provided, to defendant MagMutual. (Id. at 7-8).
Plaintiff spoke with defendant Cook about the patient’s claim on April 25, 2017. Defendant
Cook told plaintiff that the patient and the patient’s attorney knew “her name and her role in the
surgery.” (Id. at 8). Defendant Cook also advised plaintiff that obtaining legal representation would
be futile as it would “not necessarily influence the decisions made” by defendants MagMutual and
ECU. (Id.).
Defendant MagMutual presented its evaluation of the patient’s claim to defendant Cook,
who, in turn, presented the information to a group identified as “Brody School of Medicine senior
leadership.” (Id.). This “senior leadership team,” which plaintiff alleges included defendants
Iannettoni and Williams, authorized defendant Cook to communicate to MagMutual that MagMutual
was authorized to negotiate a settlement with the patient’s attorney, on behalf of plaintiff. Following
that authorization, the senior leadership team determined that the claim would be settled in
plaintiff’s name, and only plaintiff’s name.

Management.”)).

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On June 19, 2017, defendant ECU communicated its rationale for settling the patient’s claim
and falsely asserted to plaintiff that the patient’s attorney had identified plaintiff as the negligent
party. Plaintiff alleges defendant MagMutual reviewed and ratified ECU’s letter to plaintiff.
After learning that defendant ECU had decided to settle the patient’s claim identifying her
as the sole responsible provider, plaintiff obtained legal counsel. Plaintiff’s counsel advised
defendants ECU and MagMutual of his retention by plaintiff and advised MagMutual of its conflict
of interest between its insureds. Defendant MagMutual did not respond nor did defendant provide
plaintiff or her counsel with an opportunity to review the medical malpractice settlement agreement
prior to it being executed.
As a result of ECU’s decision to settle the patient’s claim listing only plaintiff as the
responsible physician, MAG Mutual submitted a medical malpractice payment report (“report”) to
the National Practitioner’s Data Bank (“NPDB”) on August 10, 2017. (Id. at 9; DE 38-2 at 20-22).5
The report states the responsibility for the patient’s allegedly unnecessary procedure was wholly
plaintiff’s responsibility.6 The report sent to the NPDB was accompanied by a supplemental
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Because the report is referenced in and integral to the complaint and there is no question as to its authenticity,
the court will additionally consider the report attached by plaintiff to her motion for preliminary injunction in the context
of defendants’ motions to dismiss. See Mason, 851 F.3d at 317n.2; Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159,
166 (4th Cir. 2016) (“we may consider a document submitted by the movant that was not attached to or expressly
incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the
document’s authenticity”).
6

All parties submit to that court that defendant MagMutual has submitted two additional reports to the NPDB.
The second report allocated 10% responsibility to plaintiff and 90% responsibility to defendant Williams, which
defendant MagMutual has characterized as erroneous, and the third report, submitted on November 13, 2017, allocated
90% responsibility to plaintiff and 10% responsibility to defendant Williams. (See DE 70; DE 72; DE 79 at 1-2; DE 86
at 1; DE 88 at 2). Defendant MagMutual’s initial notice to the court regarding these updated reports indicated defendant
MagMutual’s position that the original report “which is subject of the pending renewed motion for preliminary
injunction, has been replaced.” (DE 70 at 2). At the direction of the court to show cause why the motion for preliminary
injunction should not be denied as moot, plaintiff asserts that the third revised report does not restore plaintiff to her
previous position before the issuance of the first report and plaintiff still seeks a court-ordered preliminary injunction.
(DE 72). In the parties’ filings regarding defendants’ motions to dismiss, no party argues these “updated” reports impact
plaintiff’s claims at this stage of litigation, although plaintiff argues that “[t]hese reports only emphasize the need for
Court supervision” and in general support plaintiff’s claims. (DE 72; DE 86 at 1).

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statement required by the North Carolina Medical Board. Plaintiff alleges the report and its
supplement identify plaintiff as an “assistant surgeon,” but omit the fact that she was a clinical
fellow, that defendant Williams began the surgical procedure prior to receiving the radiology report,
that defendant Williams was in the operating room with plaintiff for approximately forty-five
minutes prior to the radiology report being brought to the operating room, and falsely states that the
sternotomy was performed before defendant Williams’s arrival to the operating room. (Am. Compl.
(DE 67) at 9). According to plaintiff, these omissions indicate plaintiff performed the procedure
without authorization.
The report states that plaintiff “disagrees with the allocation of this settlement.” (Id. at 10).
The statement required for the North Carolina Medical Board also includes an admission by
defendants that “liability is questionable,” and that the conclusion regarding liability is based on
defendant MagMutual’s own expert review as well as the internal review conducted by defendant
ECU. (Id.).
According to the amended complaint, any prospective employer of plaintiff’s is required by
law to review the NPDB’s listing of plaintiff. The NPDB report and the North Carolina Medical
Board supplement were sent to the NPDB, the North Carolina Medical Board and licensing boards
in the states of Massachusetts, California, and New York.
Prior to submitting the NPDB report, defendant ECU told plaintiff that she would have an
opportunity to “indicate [her] disagreement with the decision” to settle the malpractice claim. (Id.).
Defendant Cook reviewed a draft of the NPDB report on or around July 31, 2017, and then
forwarded that draft to plaintiff’s counsel on August 1, 2017, stating that the due date to submit the
report was August 18, 2017. Plaintiff’s counsel responded to the draft on August 3, 2017 and asked

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to have a conversation with defendant Cook. Defendant Cook never responded to that request.
Additions to the reports were made between August 1, 2017, and August 10, 2017, when the reports
were sent to the NPDB and the medical licensing agencies. Those additions were never shared with
plaintiff. The NPDB report was submitted on August 10, 2017, and plaintiff was not informed of
the submission until August 14, 2017.
According to plaintiff, this “report will stigmatize [plaintiff] for the remainder of her career,”
including when plaintiff seeks employment, medical malpractice insurance, board certification, and
in maintaining licensure, or seeking additional medical licenses. (Id. at 11). Plaintiff has been
notified that the North Carolina Medical Board is investigating the facts surrounding the filing of
the medical malpractice payment report. Plaintiff has also received queries from other state
licensing agencies.
According to plaintiff, the ECU defendants reported plaintiff instead of defendant Williams,
because “[t]he male leadership at ECU chose to protect its own interests” and “because the custom
of the leadership at ECU is to choose to benefit males at the expense of females, because they are
male.” (Id. at 11-12).
B.

Allegations Related to Sex Discrimination
Plaintiff was recruited for an employment position in the East Carolina Heart Institute, and

ECU faculty represented to plaintiff that, by accepting employment as a fellow, a position that
necessitated she take a substantial loss in pay, she would be more likely to receive a regular faculty
appointment in the Department of Cardiothoracic surgery. As plaintiff’s employment as a fellow
continued into 2015 and 2016, plaintiff was repeatedly told that the faculty intended to offer her a
regular faculty appointment.

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During Spring of 2016, ECU advertised a regular faculty position in a division of the
Department of Cardiovascular Sciences, a position for which plaintiff asserts she was eminently
qualified. During this time, defendant Iannettoni and a professor from the Harvard School of
Medicine, one of plaintiff’s references, discussed plaintiff’s pending application for the available
faculty position, and defendant Iannettoni stated that plaintiff would be interviewed for the position.
The professor had called defendant Iannettoni because he was aware that plaintiff had applied for
a position and that he, the professor, had been identified as an employment reference. When the
professor had not received a request for a reference from defendant Iannettoni, the professor initiated
the telephone call. Subsequently, plaintiff learned that defendant Iannettoni intentionally did not
call this reference nor any of the other references listed on her application because he never intended
to interview her for the available position.
Plaintiff was not provided the opportunity to interview, and a male applicant, whose
experience and qualifications were inferior to plaintiff’s credentials, was hired instead. Plaintiff
was told by defendant Iannettoni that she was not a desirable candidate for the position because
other faculty found her “intimidating.” (Id. at 16). During the previous two years, plaintiff had
received a positive review and recommendations for contract renewal. Plaintiff had never been
provided any feedback suggesting that defendant Iannettoni’s statement was authentic. Defendant
Iannettoni’s statement was at odds with observable behavior on the part of staff, who referred to
plaintiff by her first name while referring to other male physicians by their title.
When plaintiff was not offered an opportunity to compete for a faculty position, she asked
defendant Iannettoni if he would agree to extend her employment again on a contractual basis.
Plaintiff alleges that although other male clinical instructors and clinical fellow who have made a

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similar request were given six months to one-year contract extensions, defendant Iannettoni only
agreed to a three-month extension of plaintiff’s contract. Plaintiff also sought an available locum
tenens position advertised by ECU. A male surgeon who had less relevant skills and experience than
the plaintiff was offered the position instead.
According to plaintiff, the Department of Cardiovascular Sciences and the Division of
Cardiothoracic Surgery have a reputation for unequal treatment of female employees and a lack of
responsiveness to the complaints by female employees about unequal treatment. According to
plaintiff, “the reputation arose from complaints of female employees about the conduct directed
toward them by male employees, particularly male employees in leadership or supervisory
positions.” (Id. at 17). Defendant ECU had resolved at least one other sex discrimination complaint
during the time of plaintiff’s employment based on sexist conduct of one of the department’s male
physicians directed to a female employee.7
During the time that plaintiff was employed in the Department of Cardiovascular Sciences,
there were some, but few, males in clinical support roles such as nursing; there were no females in
leadership positions; and advertisements on the department’s website depicted males primarily in
leadership roles and females as warm and helpful. Plaintiff alleges male leadership preferred to
interview and hire surgeons who were male and were quick to denigrate female surgeons.
According to plaintiff, during the course of her fellowship, plaintiff was often treated less
favorably than similarly-situated male employees, including in the ways that male supervising
faculty interacted with her, as well as in the decisions that were made regarding her employment

7

Plaintiff additionally alleges there are thirty-four faculty members in the Department of Cardiovascular
Sciences; of the total thirty-four faculty, thirty-one are male and four are female, including one female who is a Ph.D.
rather than an M.D.

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contracts; additionally, 1) plaintiff was expected to get coffee for male faculty, answer the chief of
staff’s phone, and get defendant Williams food and drink, which nurses, but not other physicians,
were asked to do; 2) defendant Williams would address plaintiff by her first name instead of doctor,
defendants Iannettoni and Williams addressed male physicians by their titles, and another female
clinical fellow who is female was also addressed by her first name; 3) defendant Williams flirted
with female physician assistants and nurse practitioners to the point of making plaintiff
uncomfortable; and 4) defendant Williams was critical of a female thoracic surgeon who he claimed
did not want to work hard because she wanted to have babies. (Id. at 19-20).
In the Spring of 2016, plaintiff complained about sex discrimination to Dr. Betsy Tuttle, a
department chair in another department. After plaintiff complained, according to plaintiff, defendant
Williams’s hostility toward plaintiff intensified. On mornings when the two were to conduct rounds
on patients, defendant Williams would begin without plaintiff, even though she was at work and
prepared to begin rounds. When the two were in the Intensive Care Unit, Williams would
completely ignore plaintiff.
Plaintiff left ECU in October 2016, taking a position with another practice in another state.
When plaintiff was contacted by defendant Cook regarding the patient who had filed a claim,
defendant Cook told plaintiff that defendant Williams denied giving Plaintiff an order to initiate the
sternotomy on the patient. According to plaintiff, defendant Williams “made a false statement in
retaliation for Dr. Robinson’s previous complaints about him.” (Id. at 21).
COURT’S DISCUSSION
A.

Standard of Review
A Rule 12(b)(1) motion challenges the court’s subject-matter jurisdiction, and the plaintiff

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bears the burden of showing that federal jurisdiction is appropriate when challenged by the
defendant. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). Where, as here, the moving party contends that the complaint
“simply fails to allege facts upon which subject matter jurisdiction can be based,” then “all facts
alleged in the complaint are assumed true.” Adams, 697 F.2d at 1219. “Where the jurisdictional
facts are intertwined with the facts central to the merits of the dispute . . . . the entire factual dispute
is appropriately resolved only by a proceeding on the merits,” and Rule 12(b)(1) is “an inappropriate
basis” to grant dismissal. Adams, 697 F.2d at 1219-20.
“To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-pled facts as
true and construes these facts in the light most favorable to the plaintiff,” but does not consider
“legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual
enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citations omitted).
B.

Defendants’ Motions to Dismiss
Plaintiff’s claims against defendants primarily concern the settlement process with the patient

related to the sternotomy procedure performed on April 14, 2015, and report submitted thereafter
to the NPDB. Regarding these claims, the court addresses first the threshold determinations of
plaintiff’s alleged failure to exhaust administrative remedies and defendants’ alleged immunity

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under the HCQIA. The court then addresses plaintiff’s substantive claims concerning the settlement
process and NPDB report in the following order: constitutional claims asserting violations of the
Fourteenth Amendment, state-law based claims, and claim for declaratory and injunctive relief.
Finally, the court addresses plaintiff’s additional constitutional claims against defendants
Iannettoni and Williams concerning allegations of sex discrimination experienced by plaintiff during
her time at East Carolina University unrelated to the settlement process and NPDB report.
1.

Threshold Determinations
a.

Failure to Exhaust Administrative Remedies

Defendants assert that the court should decline to exercise jurisdiction over plaintiff’s
declaratory judgment claims regarding the NPDB report for plaintiff’s failure to exhaust the
administrative remedies afforded her pursuant to 45 C.F.R. § 60.21. (DE 74 at 15-17; DE 79 at 813). Plaintiff argues that these remedies are permissive, not mandatory, and in this case inadequate,
and thus the court has not been deprived of subject-matter jurisdiction. (See, e.g., DE 87 at 9-18).
Although neither the Supreme Court nor the Fourth Circuit has addressed exhaustion of
administrative remedies in the context of the HCQIA, as a general rule, parties must, “exhaust
prescribed administrative remedies before seeking relief from the federal courts.” McCarthy v.
Madigan, 503 U.S. 140, 144-45 (1992), superseded by statute on other grounds, 42 U.S.C. §
1997e(a). However, where the administrative remedies are not expressly shown to require prior
exhaustion, the Supreme Court has listed “at least three broad sets of circumstances in which the
interests of the individual weigh heavily against requiring administrative exhaustion”: (1) where
“requiring resort to the administrative remedy may occasion undue prejudice to subsequent assertion
of a court action”; (2) where the agency lacks power to grant effective relief; and (3) where the

17

agency is “shown to be biased or has otherwise predetermined the issue before it.” Id. at 146-148
(citations omitted); see also Balfour Beatty Infrastructure, Inc. v. Mayor & City Council of
Baltimore, 855 F.3d 247, 252 (4th Cir. 2017) (recognizing “exhaustion may be excused as futile
when the agency charged with administrative review is not empowered to adjudicate the issue
presented or to grant effective relief”).
Plaintiff does not allege that the Secretary of the Department of Health and Human Services
(“Secretary”) would be biased or has otherwise predetermined the issue. Additionally, plaintiff’s
ability to file suit in federal court would not be prejudiced if these claims are raised to the Secretary
in the first instance.8
The exhaustion issue presented therefore turns on whether the relief sought by plaintiff is
within the Secretary’s purview. The Secretary’s power to review an allegedly incorrect report is
limited. The Secretary “will only review the accuracy of the reported information, and will not
consider the merits or appropriateness of the action or the due process that the subject received.”
45 C.F.R. § 60.21(c)(1). Although the Fourth Circuit has not addressed the issue, the Eleventh
Circuit has stated:
The Secretary reviews a report for factual accuracy deciding only if the report
accurately describes the adverse action that was taken against the physician and the
reporting hospital’s explanation for the action, which is the hospital’s statement of
what the physician did wrong. The Secretary does not act as a factfinder deciding
whether incidents listed in the report actually occurred or as an appellate body
deciding whether there was sufficient evidence for the reporting hospital to conclude

8

Plaintiff argues that she will be prejudiced in that the “mere existence of a report implies that the physician’s
competence and professionalism are suspect, because that is the purpose of the data bank,” and stresses that “[t]ime is
of the essence in addressing the implications of the report.” (DE 86 at 16-17). Plaintiff additionally argues that
defendants’ “characterization of the [administrative] process as relatively fast is also inaccurate.” (Id. at 18). However,
plaintiff’s speculative concern regarding delay is not an “unreasonable or indefinite timeframe for administrative action,”
as discussed by the Supreme Court. McCarthy, 503 U.S. at 147; see also 45 C.F.R. § 60.21(b)(3) (providing 60 days
for reporting entity to respond when report is placed in disputed status and 30 days for the Secretary to decide whether
to correct report once review is requested).

18

that those actions did occur.
Leal v. Sec’y, U.S. Dep’t of Health & Human Servs., 620 F.3d 1280, 1284 (11th Cir. 2010)
(citations omitted); see also U.S. Dep’t of Health & Human Servs., Health Resources & Servs.
Admin., NPDB Guidebook F-5, F-6, F-7, F-16 (2015).
Here, plaintiff requests the court declare 1) the investigation that led to the issuance of the
report “biased and incomplete,” ECU defendant’s conduct unlawful, and subsequent findings
“invalid and unjustified,” 2) the report itself to be false and improvidently issued,9 and 3) plaintiff’s
status with the NDPDB nunc pro tunc to before the report was filed. (Am. Compl. (DE 67) at 2324). Plaintiff additionally requests injunctive relief, enjoining defendants to “take all necessary steps
to void” its report submitted to NPDB and to any state medical licensing authority. (Id. at 24).
Finally, plaintiff requests the court to declare that plaintiff’s role in the sternotomy does not
constitute a reportable event under the rules of the NPDB. (Id. at 23).
The only relief sought by plaintiff within the Secretary’s purview concerns whether
plaintiff’s role in the sternotomy does not constitute a reportable event. See 24 C.F.R. §
60.21(c)(2)(iv) (directing that if the Secretary concludes the adverse action was not reportable and
therefore should be removed, the Secretary informs the subject and directs the NPDB to void the
report); see also Satgunam v. Michigan State Univ., 556 F. App’x 456, 465 (6th Cir. 2014) (“We
find that administrative exhaustion applies here because the Secretary would be able to address
Satgunam’s claim about MSU’s eligibility to file its Data Bank report.”); Straznicky v. Desert

9

As discussed further below, plaintiff argues that the NPDB report is false in two respects, “it fails to state the
true nature of the patient’s claim and it states that Dr. Robinson was the only practitioner responsible for the alleged
medical malpractice.” (DE 86 at 10). Regarding the former, plaintiff’s amended complaint states that “among the
patient’s complaints was a complaint about an ‘unnecessary median sternotomy performed by Mark J. Williams, M.D.’
In addition, the complaint included damages associated with the failure to make a proper diagnosis of the patient’s
condition prior to hospital admission.” (Am. Compl. (DE 67) at 6).

19

Springs Hosp., 642 F. Supp. 2d 1238, 1246 (D. Nev. 2009) (“Thus, prior to bringing his claims (at
least as far as they rely on his allegation that the adverse report was not required to be filed),
Straznicky must exhaust his administrative remedy by filing a dispute with the Secretary and
obtaining a resolution of that dispute.”). Therefore, plaintiff must exhaust her administrative
remedies by filing a dispute with the Secretary regarding whether plaintiff’s role in the sternotomy
constituted a reportable event.10
Turning to plaintiff’s other requests for declaratory and injunctive relief, defendants cite
Suleman v. Shinseki, No. 5:10-CV-355-FL, 2011 WL 1868941, at *1 (E.D.N.C. May 16, 2011), in
support of their argument that exhaustion of administrative remedies should be required as to
plaintiff’s other requests as well. In Suleman, plaintiff was a physician employed by the U.S.
Veterans Administrative and sought review under the Administrative Procedures Act. Id. Following
the Fourth Circuit’s decision in Flue-Cured Tobacco Coop. v. U.S. Env. Prot. Agency, 313 F.3d 852
(4th Cir. 2002), this court found that “the submission to the NPDB at best has the potential to
persuade and influence third parties, which is insufficient to make an action ‘final’ as required by
the APA.”11 Id. at 2.
Here, plaintiff does not bring her claim pursuant to the Federal or State Administrative
Procedures Act, and plaintiff argues she cannot do so. (See DE 87 at 15 (citing N.C. Gen. Stat

10
Although it appears plaintiff is challenging the third and current report submitted by defendant MagMutual
to the NPDB on the exact same grounds articulated above, to the extent plaintiff alleges the third and current report does
not accurately summarize on its face ECU’s determination of allocation of responsibility for the procedure, this challenge
is also within the purview of the Secretary and therefore plaintiff must exhaust her administrative remedies by filing a
dispute with the Secretary regarding this issue as well. (See DE 86 at 1-2 (plaintiff stating “[t]heir third report is no more
accurate,” regarding percentages of allocation of responsibility)).
11

Other courts have agreed that exhaustion of administrative remedies is required where a plaintiff brings a
claim concerning a report submitted to the NPDB pursuant to the APA which permits judicial review only of a “final
agency action for which there is no other adequate remedy.” Reynolds v. United States Dep’t of Justice, 10 F. Supp.
3d 134, 143 (D.D.C. 2014); Breda v. McDonald, 153 F. Supp. 3d 496, 503 (D. Mass. 2015).

20

§150B-1(f) (providing for certain exceptions to the North Carolina Administrative Procedures Act
for the University of North Carolina))). In Suleman, the plaintiff and defendant agreed that the APA
was the appropriate vehicle within which the plaintiff should seek review; they disagreed about
whether the employer’s decision was a “final agency decision” within the meaning of the APA.
Furthermore, Suleman specifically disputed whether a payment was made on his behalf (or on behalf
of the nurses against whom a tort claim had been brought). Here, plaintiff does not dispute whether
the payment was made on her behalf; she disputes whether it should have been made on her behalf,
a question which cannot be reviewed by the Secretary.
Suleman is inapposite, and the relief requested by plaintiff, except as stated above, does not
fall within the purview of the Secretary. It is not within the Secretary’s power to assess the
investigation that led to the issuance of the report, nor defendants’ conduct in that investigation. 45
C.F.R. § 60.21(c)(1) (The Secretary “will only review the accuracy of the reported information, and
will not consider the merits or appropriateness of the action or the due process that the subject
received.”). Additionally, the Secretary cannot assess whether that same investigation correctly
allocated responsibility for the procedure that occurred or whether the report should have been
issued at all, except to the extent of determining if the action taken was not reportable. Id. at §§
60.21(c)(1), (2)(iv). Finally, the Secretary can void the report, but not based on the reasons provided
by plaintiff, and the Secretary cannot force defendants to take the steps to void the report
themselves. Id.; see also DOE v. Rogers, 139 F. Supp. 3d 120, 148 (D.D.C. 2015) (“Thus, the
statute limits the Secretary’s regulatory authority to providing procedures to dispute the accuracy
of the reported information but nowhere does the statute authorize, or even contemplate, that the
Secretary will actually adjudicate the underlying merits of the events, professional review actions,

21

activities, findings, or determinations.”).12
Accordingly, except regarding whether plaintiff’s role in the sternotomy constituted a
reportable event, plaintiff was not required to exhaust administrative remedies regarding plaintiff’s
request for declaratory and injunctive relief in that it would have been futile and the Secretary lacks
the authority to grant the type of relief requested by plaintiff.
b.

HCQIA Immunity

Congress enacted the HCQIA after 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 State to State without disclosure or
discovery of the physician’s previous damaging or incompetent performance.” 42 U.S.C. §
11101(1-2).13 As pertinent here, the HCQIA requires insurance companies that make payments in
settlement of medical malpractice claims to report certain information pertaining to such payments,

12

In those courts that have required exhaustion in the context of reporting medical malpractice settlement
claims, it appears that the relief requested in those cases were within the purview of the Secretary. See Bigman v. Med.
Liab. Mut. Ins. Co., No. 95 CIV. 1733(PKL), 1996 WL 79330, at *3 (S.D.N.Y. Feb. 22, 1996) (exhaustion required
where plaintiff sought injunction compelling insurance company to revise inaccurate report where plaintiff alleged no
payment on behalf of plaintiff had been made); Gonino v. Private Health Care Sys., Inc., No. CIV.A. 3:04-CV-1940G,
2004 WL 2583625, at *3 (N.D. Tex. Nov. 12, 2004) (“In this case, the injunctive relief sought by Gonino is the same
relief that the HCQIA regulation is designed to provide.”); Anbar v. Leahan, No. CIV. A. 97-CV-1138, 1998 WL
314691, at *7 (E.D. Pa. June 11, 1998) (exhaustion required where plaintiff sought injunction compelling insurance
company to revise inaccurate report where plaintiff had right to not consent to settlement, did not consent to settlement,
and the report omitted this information).
13

The primary thrust of the HCQIA concerns “professional review actions,” which are also required to be
reported if the review “adversely affect the clinical privileges of a physician for a period of longer than 30 days.” 42
U.S.C. § 11133. The HCQIA provides a separate immunity provision applying to this reporting requirement. See 42
U.S.C. §§ 11111, 11112; see id. 42 U.S.C. § 11112(a)(1)-(4) (“To obtain HCQIA immunity, a health care entity’s
professional review action must fall within the breadth of the statute, in that the action was taken or made: (1) in the
reasonable belief that the action was in furtherance of quality health care, (2) after a reasonable effort to obtain the facts
of the matter, (3) after adequate notice and hearing procedures [were] afforded to the physician involved or after such
procedures as [were] fair to the physician under the circumstances, and (4) in the reasonable belief that the action was
warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of
[sub]paragraph (3).”); Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir. 2009) (conducting §§ 11111
and 11112 immunity analysis).

22

including the name of the physician for whose benefit the payment is made, the amount of the
payment, and “a description of the acts or omissions and injuries or illnesses upon which the action
or claims was based.” 42 U.S.C. § 11131(a) & (b)(1)-(5); see also 45 C.F.R. § 60.7(a) (“Each entity,
including an insurance company, which makes a payment under an insurance policy . . . for the
benefit of a health care practitioner in settlement of . . .a claim . . . against such health care
practitioner for medical malpractice, must report information . . . to the NPDB.”).
The HCQIA provides immunity for entities that submit reports to the NPDB concerning the
settlement of medical malpractice claims. See 42 U.S.C. § 11137(c). Neither the Supreme Court
nor the Fourth Circuit has addressed HCQIA immunity in this context, which provides in a section
entitled, “[r]elief from liability for reporting,” that “[n]o person or entity . . . shall be held liable in
any civil action with respect to any report made under this subchapter . . . without knowledge of the
falsity of the information contained in the report.” 42 U.S.C. § 11137(c) (emphasis added); see also
Brown v. Presbyterian Healthcare Servs., 101 F.3d 1324, 1334 (10th Cir. 1996) (“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.”). This protection from liability, by the breadth
of its terms, extends to injunctive relief and civil actions brought under state law, where the damages
claimed are solely the result of a report to the NPDB.14
Therefore, the court must first address defendants’ arguments that plaintiff has failed to

14

Section 11137(c) immunity is complete: it provides immunity from both damages and suits for injunctive
relief, in contrast to partial immunity under § 11111, which applies to reports submitted regarding “professional review
actions.” Compare 42 U.S.C. § 11137(c) (“No person or entity . . . shall be held liable in any civil action . . . .) and 42
U.S.C. § 11111 (“If a professional review action . . . meets all the standards . . . . any person . . . shall not be liable in
damages . . . . The preceding sentence shall not apply to damages under any law of the United States or any State
relating to the civil rights of any person or persons . . . .); see also Reyes v. Wilson Mem’l Hosp., 102 F.Supp.2d 798,
822 (S.D.Ohio 1998) (contrasting § 11137(c)’s “complete” grant of immunity with § 11111’s more limited grant of
immunity from damages and finding immunity from injunctive relief under the former statute).

23

allege that the report contained any false information. In defendants’ view, if the words in the report
are true, defendants are entitled to immunity. Plaintiff disagrees, but appears to have shifted in what
she alleges is untrue about the report.
In plaintiff’s amended complaint, plaintiff alleges the following about the NPDB report:
The report states that 100% of the responsibility for the patient’s allegedly
unnecessary procedure was Dr. Robinson’s responsibility . . . . the report and its
supplement identify Dr. Robinson as an “assistant surgeon,” but omit the fact that she
was a Clinical Fellow. The reports omit the fact that Dr. Williams had ordered Dr.
Robinson to begin the surgical procedure prior to receiving the radiology report. The
reports omit the fact that Dr. Williams was in the operating room with Dr. Robinson
for approximately forty-five minutes prior to the radiology report being brought to
the operating room and falsely states that the sternotomy was performed before Dr.
Williams’ arrival to the operating room. By its omissions, the report intends that the
reader will conclude that Dr. Robinson performed the procedure without
authorization. The report states that Dr. Robinson “disagrees with the allocation of
this settlement.” The statement required for the North Carolina Medical Board also
includes an admission by Defendants that “liability is questionable,” and that the
conclusion regarding liability is based on Defendant MAGMutual’s own expert
review as well as the internal review conducted by Defendant ECU.
(Am. Compl. (DE 67) at 9-10).
Now, based on plaintiff’s submissions to the court in response to defendants’ motions to
dismiss, plaintiff alleges or clarifies that the NPDB report is false in two respects, one of which
plaintiff has consistently maintained, that the report is false by stating plaintiff “was the only
practitioner responsible for the alleged medical malpractice,” but also that the report is false in that
it “fails to state the true nature of the patient’s claim.” (DE 86 at 10 citing (Am. Compl. (DE 67)
at 6 (“among the patient’s complaints was a complaint about an ‘unnecessary median sternotomy
performed by Mark J. Williams, M.D.’ In addition, the complaint included damages associated with

24

the failure to make a proper diagnosis of the patient’s condition prior to hospital admission.”))).15
Thus, in sum, plaintiff argues that the report contains false information in that it 1)
incorrectly allocated responsibility for the procedure performed, responsibility that was determined
by ECU “senior leadership team,” (Am. Compl. (DE 67) at 9), and 2) omitted information, thus
misleading the reader.16
Although plaintiff challenges the underlying validity of the allocated responsibility for the
procedure performed and the accuracy of the information presented during those proceedings,
plaintiff has not argued that the report submitted inaccurately summarized those proceedings. (See
id. at 12 (“During this process, defendant MagMutual . . . allowed the grounds for the settlement to
be based on defendant ECU’s internal review of its own potentially liable attending physician and
an outside expert who was not in Plaintiff’s medical specialty.”)). Additionally, the omitted
information pointed out by plaintiff also pertains to the allocated responsibility as determined by the
ECU senior leadership team in that the omitted information supports plaintiff’s position that
defendant Williams, and not plaintiff, is responsible for the procedure performed.
Nevertheless, plaintiff argues that immunity should be denied because defendants knew the
decision made by the ECU senior leadership team was based on false information, and in fact

15

A review of the report itself shows the “basis” for the report is identified as an “unnecessary procedure,” only
plaintiff is identified in the report, the amount and date of the settlement payment is identified, and the report states
“practitioner does not agree with the allocation of this settlement.” (DE 38-2 at 20-23). Additionally, the following
information is provided under “description of the allegations and injuries”: “Patient alleges that on April 14, 2015 she
underwent a median sternotomy that could have been avoided if the intraoperative transesophageal echocardiogram had
been reviewed prior to the sternotomy. Patient alleges unnecessary disfigurement from the surgical procedure and
significant physical pain and emotion distress.” (Id. at 21).
16

Plaintiff also argues that the report indicates plaintiff was “the sole malpractitioner,” performed a
“unauthorized surgical procedure,” and that defendant MagMutual, in their review of the patient’s complaint (which
identified defendant Williams and not plaintiff) and the medical records, would have known this to be false. (DE 87 at
19-21). However, what the report states and what the report may indicate are two different inquires. Notwithstanding
plaintiff’s arguments as to indication, plaintiff does not allege the report states plaintiff was a malpractioner or that she
engaged in an unauthorized procedure, and a review of the report confirms that the report does not state this information.

25

defendant Williams did authorize the procedure and, more generally, defendant Williams was overall
responsible for the procedure.17
Few courts have confronted this issue, what is “false” for the purposes of § 11137(c), in the
context of a report based on settlement of a medical malpractice claim, pursuant to § 11131.
However, courts that have addressed this issue have focused on the accuracy of the details as found
in the report. See Kreit v. St. Paul Fire & Marine Ins. Co., No. CIV.A.H-04-1600, 2006 WL
322587, at *6 (S.D. Tex. Feb. 10, 2006) (holding that “St. Paul accurately described the plaintiff’s
allegations made against Dr. Kreit in the Kentucky Lawsuit, the terms of the settlement, and the fact
that Dr. Kreit denied any liability on the claim.”); Anbar, 1998 WL 314691, at *5 (finding question
as to whether the “report was technically true” regarding whether $200,000.00 had been paid on
behalf of plaintiff in a medical malpractice suit settlement).
The law is somewhat more developed as to what is “false” for the purposes of § 11137(c)
in the context of a report based on a “professional review action that adversely affects the clinical
privileges of a physician for a period longer than 30 days,” pursuant to § 11133. In this context, a
general consensus has emerged that “courts do not evaluate whether the underlying merits of the
reported action were properly determined” but instead “evaluate whether the report itself accurately
reflected the action taken.’” Murphy v. Goss, 103 F.Supp.3d 1234, 1239 (D. Oreg. 2015);
Elkharwily v. Franciscan Health Sys., No. 3:15-CV-05579-RJB, 2016 WL 4268938, at *4 (W.D.
Wash. Aug. 15, 2016) (same); Sheikh v. Grant Reg’l Health Ctr., No. 11-CV-1-WMC, 2014 WL
28658, at *2 (W.D. Wis. Jan. 2, 2014) (same); Hooda v. W.C.A. Serv. Corp., No. 11-CV-504-A,

17

Plaintiff additionally argues whether defendants “had knowledge of the falsity of the report is not sufficiently
developed in the record and cannot be decided at the pleading stage.” (DE 86 at 12). However, “HCQIA immunity is
a question of law for the court to decide and may be resolved whenever the record in a particular case becomes
sufficiently developed.” See Bryan v. James E. Holmes Reg’l Med. Ctr., 33 F.3d 1318, 1332 (11th Cir. 1994).

26

2013 WL 2161821, at *6 (W.D.N.Y. May 17, 2013) (same); Kunajukr v. Lawrence & Mem’l Hosp.,
Inc., No. 3:05–CV–1813 (JCH), 2009 WL 651984, at *23 (D.Conn. Jan. 12, 2009) (same); see also
Moore v. Williamsburg Reg’l Hosp., 560 F.3d 166, 177 (4th Cir. 2009) (“When read in full, the
report accurately states what happened”); Brown, 101 F.3d at 1334 (10th Cir. 1996) (finding report
potentially “false” where report listed incorrect reason for disciplinary action taken against plaintiff).
The rationale employed in the above cases is useful in the present case, in that plaintiff’s
complaint does not allege the report contains false information, only that the information provided
rests on a faulty investigation. Plaintiff alleges that the report “states that 100% of the responsibility
for the patient’s allegedly unnecessary procedure” was plaintiff’s, that plaintiff “disagrees with the
allocation of this settlement,” and includes in a supplemental filing an “admission by Defendants
that ‘liability is questionable.’” (Am. Compl. (DE 67) at 9-10). Although plaintiff argues otherwise,
plaintiff does not challenge the accuracy of the report, but rather the underlying determination that
she would be held responsible for the procedure at issue which was accurately reported to the
NPDB, as required by statute.
Because the report submitted to the NPDB accurately summarized the ECU leadership
team’s decision as to allocation of responsibility, included plaintiff’s disagreement with that
allocation, and included defendants’ admission as to the questionable nature of the liability, plaintiff
has failed to allege defendant MagMutual knowingly submitted a false report. Therefore, HCQIA
immunity applies in this instance to insulate defendant MagMutual from liability for filing the
report.18

18

Plaintiff’s allegations concerning defendant MagMutual’s behavior during the underlying investigation in
which plaintiff was determined to be solely responsible for the procedure at issue is governed by defendant MagMutual’s
contractual obligations to the parties and more generally by North Carolina contractual law principles, (see DE 75 at 5,
18 (showing policy is governed by North Carolina law)), and is a separate inquiry from the legality of defendant

27

However, this immunity, by its terms, extends only to a defendant who submitted a report
to the NPDB and only immunizes that defendant for submitting a report.19 Therefore, defendant
MagMutual, who is the only entity alleged to have been involved in the submission of the NPDB
report, has immunity from all of plaintiff’s requests for declaratory and injunctive relief regarding
the submission of the NPDB report.20 Additionally, defendant MagMutual has immunity from
plaintiff’s state-law based claims in that plaintiff solely alleges damages stemming from the filing
of the report for each of these claims. (See Am. Compl. (DE 67) at 32 (“Defendant’s unfair and
deceptive conduct caused a report to be filed . . . .”); id. at 35, 37 (“Plaintiff’s good name and
professional reputation have been damaged by the submission of the reports . . . .”)).
In sum, the court lacks subject-matter jurisdiction over plaintiff’s request for declaratory
relief regarding whether plaintiff’s role in the April 14, 2015 sternotomy is a reportable event to the
NPDB and over all claims against defendant MagMutual.
The court will now address plaintiff’s constitutional claims, state-law claims, and requests
for declaratory and injunctive relief against ECU defendants.

MagMutual’s statutorily required reporting to the NPDB.
19

Here, plaintiff alleges only defendant MagMutual’s involvement in the submission of the report to the NPDB.
(See Am. Compl. (DE 67) at 9 (“As a result of ECU’s decision to settle the patient’s claim listing only Dr. Robinson as
the responsible physician, MAG Mutual submitted a [report] to the [NPDB] on August 10, 2017.”)). These allegations
are unlike those assessed by the Tenth Circuit in Brown, where the court analyzed HCQIA immunity as to a Ms. Miller,
who was the medical center’s administrator, noting that Ms. Miller “was involved in the preparation and review of the
report.” Brown, 101 F.3d at 1334.
20

Plaintiff’s first request for declaratory relief, that the investigation that led to the issuance of the report is
“biased and incomplete,” ECU’s defendants’ conduct was unlawful, and subsequent findings of the investigation are
“invalid and unjustified,” is directed at ECU defendants and not defendant MagMutual. (See Am. Compl. (DE 67) at
23). All of plaintiff’s remaining requests for declaratory and injunctive relief concern submission of the NPDB report,
to which defendant MagMutual has immunity.

28

2.

Constitutional Claims Against ECU Defendants Related to NPDB Report
a.

Procedural Due Process Claim Against Defendant Cook

To demonstrate a procedural due process violation, a plaintiff must show that she has a
constitutionally protected property or liberty interest, and that she was deprived of that interest by
the state without due process of law. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576
(1972); Tri Cty. Paving, Inc. v. Ashe County., 281 F.3d 430, 436 (4th Cir.2002). In examining
pre-deprivation process, courts begin with the nature of the property or liberty interest. Fields v.
Durham, 909 F.2d 94, 98 (4th Cir.1990); see Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
545 (1985); Mathews v. Eldridge, 424 U.S. 319, 333–35 (1976). The Supreme Court has held that
reputation alone does not implicate any “liberty” or “property” interest sufficient to invoke the
procedural protection for the due process clause and something more than simple defamation, for
example “some more tangible interests such as employment,” must be involved to establish a claim
under § 1983. Paul v. Davis, 424 U.S. 693, 701 (1976).
Plaintiff alleges that defendant Cook’s actions led to the issuance of the NPDB report has
caused “Plaintiff substantial damages including but not limited to damage to her career, loss of
earning capacity, emotional distress, humiliation and embarrassment . . . [and] denied employment
opportunities.” (Am. Compl. (DE 67) at 28-29). Plaintiff identifies the constitutionally protected
property or liberty interest currently at stake as “a license to practice one’s calling or profession,”
“damage to one’s professional reputation [when] coupled with tangible employment consequences,”
and a “stigmas plus employment deprivation.” (DE 86 at 23; see also DE 55 at 5 (“Plaintiff does
have a protected property interest in her occupational license. Plaintiff also has a liberty interest in
her good name. Both of these interests implicate procedural due process protections.”)).

29

First, regarding plaintiff’s claim of a property interest in her license to practice her
profession, the Supreme Court has recognized such an interest. See Barry v. Barchi, 443 U.S. 55,
64 (1979) (“As a threshold matter, therefore, it is clear that Barchi had a property interest in his
license sufficient to invoke the protection of the Due Process Clause.”); see also Lujan v. G & G Fire
Sprinklers, Inc., 532 U.S. 189, 196 (2001) (characterizing right at issue in Barry as the right to
“pursue a gainful occupation”).
However, plaintiff has not cited to any controlling authority, nor is the court aware of any,
that allows the court to find a deprivation of plaintiff’s property interest in her license to practice her
profession where plaintiff has failed to allege, for example, that her license has been revoked or
suspended, she is unable to practice medicine, or even that she now receives a reduced salary. See
Barry, 443 U.S. at 64 (due process implicated where state statute authorized suspension of
occupational license without prompt post suspension hearing) (emphasis added); Bell v. Burson, 402
U.S. 535, 539 (1971) (“Suspension of issued licenses . . . involves state action that adjudicates
important interests of the licensees. In such cases the licenses are not to be taken away without that
procedural due process required by the Fourteenth Amendment.”) (emphasis added); Richardson v.
Town of Eastover, 922 F.2d 1152, 1156 (4th Cir. 1991) (“A license issued by the state which can
be suspended or revoked only upon a showing of cause creates a property interest protected by the
Fourteenth Amendment.”); Huang v. Bd. of Governors of Univ. of N. Carolina, 902 F.2d 1134, 1141
(4th Cir. 1990) (“Here, Dr. Huang’s position as a tenured professor is indisputably a property right
entitled to procedural due process protection. Also beyond dispute is that there is no evidence that
he has been deprived of this right. He remains a tenured full professor in the University at the same
or effectively greater salary.”); see also Neal v. Fields, 429 F.3d 1165, 1167 (8th Cir. 2005)

30

(“However, Neal’s complaint fails to allege a deprivation of her constitutionally protected property
interest. Her license has not been suspended, as was the horse trainer’s license in Barry v. Barchi.
Thus, her right to practice nursing in Arkansas remains intact.”).21
Additionally, although plaintiff argues deprivation does not mean destruction, (DE 86 at 25),
courts in the relevant context, including those cited by plaintiff, have held government intrusion into
an occupational license must render that license all but valueless in order for a deprivation to have
occurred. See Reed v. Vill. of Shorewood, 704 F.2d 943, 949 (7th Cir. 1983), overruled on other
grounds by Brunson v. Murray, 843 F.3d 698 (7th Cir. 2016) (“But ‘deprive’ in the due process
clause cannot just mean ‘destroy’ . . . . So if it is true as alleged that through harassment of
customers and employees and relentless, baseless prosecutions the defendants destroyed the value
of the plaintiffs’ licensed business and forced them ultimately to give up their Class A license, the
plaintiffs were deprived of their property right in the license even though the license was never
actually revoked.”); Wells Fargo Armored Serv. Corp. v. Georgia Pub. Serv. Comm’n, 547 F.2d
938, 941 (5th Cir.1977) (“The due process clause becomes relevant when such indirect injuries
effectively render the property valueless”); Med Corp. v. City of Lima, 296 F.3d 404, 413 (6th Cir.
2002) (“Med Corp. has not alleged facts sufficient to show that the proposed suspension would
completely destroy the value of its license”).
Second, regarding plaintiff’s claim of a liberty interest, the Fourth Circuit has stated that in
order to “state this type of liberty interest claim under the Due Process Clause, a plaintiff must allege

21

As stated above, although plaintiff alleges she has experienced “damage to her career, loss of earning
capacity, emotional distress, humiliation and embarrassment” along with “denied employment opportunities,” plaintiff
also has alleged that after she left ECU in October 2016, she took “a position with another practice in another state,” and
does not allege that defendants’ action have in any way impacted her ability to perform under her medical license in that
position. (Am. Compl. (DE 67) at 21, 28-29).

31

that the charges against him: (1) placed a stigma on his reputation; (2) were made public by the
employer; (3) were made in conjunction with his termination or demotion; and (4) were false.”
Sciolino v. City of Newport News, Va., 480 F.3d 642, 646 (4th Cir. 2007) (citing Stone v. Univ. of
Md. Med. Sys. Corp., 855 F.2d 167, 172 n. 5 (4th Cir.1988)).
Plaintiff has failed to allege the third prong. As stated by the Fourth Circuit, “[w]e have
required that, in order to deprive an employee of a liberty interest, a public employer’s stigmatizing
remarks must be ‘made in the course of a discharge or significant demotion.’” Ridpath v. Bd. of
Governors Marshall Univ., 447 F.3d 292, 309 (4th Cir. 2006); see id. at 309n.16 (citing Paul, 424
U.S. at 709) (“Accordingly, under what is sometimes referred to as its ‘stigma plus’ test, the Paul
Court instructed that no deprivation of a liberty interest occurs when, in the course of defaming a
person, a public official solely impairs that person’s future employment opportunities, without
subjecting him to a present injury such as termination of government employment.”).
Accordingly, plaintiff’s claim against defendant Cook, in her individual capacity, for
violation of the Fourteenth Amendment pursuant to 42 U.S.C. § 1983 for deprivation of procedural
due process rights is dismissed for failure to state a claim under Rule 12(b)(6).22
b.

Equal Protection Claims Against Defendants Williams, Iannettoni, and Cook

Plaintiff has alleged violations of the Fourteenth Amendment under 42 U.S.C. § 1983 for
unequal treatment under the law against defendants Williams, Iannettoni, and Cook, each in their
individual capacities.23
22

Because the court finds that plaintiff failed to allege a constitutionally protected property or liberty interest,
it is unnecessary for the court to address defendant Cook’s assertion of qualified immunity.
23

The Fourth Circuit has held that “[a] pure or generic retaliation claim . . . simply does not implicate the Equal
Protection Clause.” Edwards v. City of Goldsboro, 178 F.3d 231, 250 (4th Cir. 1999). Accordingly, to the extent
plaintiff seeks to assert a retaliation claim in violation of the Equal Protection clause, it is dismissed. (See Am. Compl.
(DE 67) at 21 (“Defendant Williams made a false statement in retaliation for Dr. Robinson’s previous complaints about

32

The Equal Protection Clause of the Fourteenth Amendment provides that “[n]o State shall
. . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend.
XIV, § 1. To state an equal protection claim plaintiff must allege 1) “that [she] has been treated
differently from others with whom [she] is similarly situated,” and 2) “that the unequal treatment
was the result of intentional or purposeful discrimination.” Stop Reckless Econ. Instability Caused
by Democrats v. Fed. Election Comm’n, 814 F.3d 221, 233 (4th Cir. 2016) (quoting Morrison v.
Garraghty, 239 F.3d 648, 654 (4th Cir. 2001)). If plaintiff makes such a showing, “the court
proceeds to determine whether the disparity in treatment can be justified under the requisite level
of scrutiny.” Veney v. Wyche, 293 F.3d 726, 730–31 (4th Cir. 2002) (citation omitted); Morrison,
239 F.3d at 654.
Plaintiff’s only allegation of discrimination related specifically to ECU defendants’ decision
to allocate full responsibility to plaintiff for the patient’s procedure instead of defendant Williams
is the bare allegation that the sexist culture of ECU dictated such a decision. (See Am. Compl. (DE
67) at 13 (“In choosing to settle the case as it did, ECU put the interests of its male leadership above
those of Dr. Robinson . . . . because the custom of the leadership at ECU is to choose to benefit
males at the expense of females”)). Plaintiff argues that there is an “unwitting or ingrained bias”
against women at ECU and “[w]hen searching for a way to resolve the issues surrounding the
underlying malpractice claim in this case, the ingrained bias was the ‘but-for’ cause of the decision
to focus on Plaintiff.” (DE 86 at 20).
Plaintiff has failed to allege a claim for unequal treatment against ECU defendants pertaining
to the settlement of the patient’s claims and ensuing report made to the NPDB. First, plaintiff has

him”)).

33

failed to allege any facts to suggest that the decision to allocate full responsibility for the patient’s
procedure to plaintiff was based on purposeful discrimination. Plaintiff fails to allege any facts that
defendants Iannettoni, Williams, or Cook’s involvement in the investigation or resulting decision
to allocate full responsibility to plaintiff was based solely or in part on discriminatory motives.24
Plaintiff points to no controlling authority, and the court is aware of none, that allows an allegation
of biased “custom” to qualify as intentional or purposeful discrimination for the purposes of an
Equal Protection clause analysis as found here. See Kerr v. Marshall Univ. Bd. of Governors, 824
F.3d 62, 81 (4th Cir. 2016) (“there is no allegation of overt discriminatory animus on the part of any
Appellee . . . . the district court properly dismissed Kerr’s equal protection claim for intentional
discrimination.”).
However, even if plaintiff had sufficiently alleged purposeful discrimination, plaintiff has
failed to allege that she and defendant Williams are similarly situated. Of particular importance is
that plaintiff performed the surgery at issue and defendant Williams did not, thus plaintiff and
defendant are not similarly situated for the purposes of this analysis, whether ECU defendants
treated defendant Williams more favorably than plaintiff in holding plaintiff solely responsible for
the procedure at issue. Additionally, plaintiff’s amended complaint states additional differences
undercutting plaintiff’s position that she and defendant Williams were similarly situated, in that
plaintiff was a fellow on patient’s case, not the attending, she was no longer at the institution at the
time patient’s claim was made a resolved, and she was not part of senior leadership at ECU. (See
Am. Compl. (DE 67) at 4 (plaintiff was a clinical fellow); 11 (male leadership at ECU chose to

24

Plaintiff alleges defendants Iannettoni and Williams were part of the “senior leadership team” that made the
decision to allocate full responsibility to plaintiff and that defendant Cook “allegedly conducted the investigation which
supported the discriminatory conduct.” (Am. Compl. (DE 67) at 8; DE 86 at 21).

34

protect its own interests and the interests of Williams); 36 (Cook and MagMutual had an “agreement
between them to settle the potential liability claim . . . in a manner that would be the least
detrimental to ECU and its currently employed physicians” and the agreement was the “decision of
ECU’s senior leadership which excluded the Plaintiff”); 8 (on information and belief, Williams was
on senior leadership team)).
Accordingly, the court dismisses plaintiff’s Equal Protection challenge for lack of initial
showing that defendant Williams was similarly situated and that the allocation of the responsibility
of the procedure was placed on plaintiff due to intentional or purposeful discrimination.
In sum, plaintiff claims for violations of the Fourteenth Amendment under 42 U.S.C. § 1983
for unequal treatment under the law as related to the filing of the NPDB and underlying settlement
process against defendants Williams, Iannettoni, and Cook, each in their individual capacities, are
dismissed for failure to state a claim pursuant to Rule 12(b)(6).25
3.

State-Law Claims

The court now turns to plaintiff’s individual state-law based claims against ECU defendants
connected with the settlement process and submission of the NPDB report. Plaintiff alleges claims
against defendants Cook, in her individual capacity, and defendant MagMutual, for civil
conspiracy,26 and a claim against defendant Williams for defamation. The court will address each

25

Plaintiff does not use the phrase “hostile work environment” in her pleadings or filings to the court. To the
extent plaintiff is alleging a hostile work environment claim, plaintiff has failed to allege facts of harassment sufficiently
severe or pervasive as to alter the conditions of employment. See Chao v. Rivendell Woods, Inc., 415 F.3d 342, 347
(4th Cir. 2005) (citing Bass v. E.I Dupont de Nemours & Co., 324 F.3d 761 (4th Cir.2003) (“[I]n order to state a hostile
work environment claim, a plaintiff must allege that ‘the harassment was based on her gender, race, or age’ and that ‘the
harassment was sufficiently severe or pervasive to alter the conditions of employment and create an abusive
atmosphere.’”)); Jennings v. Univ. of N. Carolina, 482 F.3d 686, 701 (4th Cir. 2007).
26

The court assumes, without deciding, that although defendant MagMutual maintains HCQIA immunity from
plaintiff’s civil conspiracy claim, such immunity does not extend to defendant Cook for the same claim.

35

in turn below.
a.

Civil Conspiracy Claims Against Defendants Cook and MagMutual

“A conspiracy is an agreement between two or more persons to commit an unlawful act or
to do a lawful act in an unlawful manner.” Evans v. Star GMC Sales & Serv., Inc., 268 N.C. 544,
546 (1966); Burton v. Dixon, 259 N.C. 473, 476 (1963). The North Carolina Supreme Court has
stated that a complaint sufficiently alleges a claim for civil conspiracy where “it alleged (1) a
conspiracy, (2) wrongful acts done by certain of the alleged conspirators in furtherance of that
conspiracy, and (3) injury as a result of that conspiracy.” State ex rel. Cooper v. Ridgeway Brands
Mfg., LLC, 362 N.C. 431, 444 (2008) (citation omitted). North Carolina does not recognize an
action for civil conspiracy in itself. Shope v. Boyer, 268 N.C. 401, 405 (1966). However,
conspiracy may be used to “associate the defendants together” for the purposes of imputing the
conduct of one defendant to another. See id.
Plaintiff has alleged unfair and untruthful conduct on behalf of defendants MagMutual and
Cook, but has failed to allege an underlying actionable tort. Plaintiff alleges“[i]n furtherance of their
agreement to settle a patient’ medical malpractice claim in the matter that would be least detrimental
to ECU,” defendants MagMutual and Cook “engaged in conduct that was overtly deceitful,”
including telling plaintiff that the patient had identified her as the negligent party; including this
false information in a letter prepared for ECU; ignoring communications from plaintiff and her
counsel; and giving false information to plaintiff’s counsel as to when the report would be submitted
and what would be included in the report. (DE 86 at 29-30). Plaintiff further argues that both of
these defendants “would have known what the rules for reporting medical malpractice payments
were,” and these defendants “agreed to violate those rules” when they filed the report. (Id. at 30).

36

As previously determined by the court, the report submitted to the NPDB accurately reflected
the allocation of responsibility decided by the senior leadership at ECU and included both plaintiff’s
disagreement with that allocation and an admission from defendant MagMutual that liability was
questionable. Defendant Cook cannot conspire with defendant MagMutual to commit a legal act.
Evans, 268 N.C. at 546 (“An agreement to do a lawful act cannot constitute a conspiracy regardless
of the motives of the parties . . . .”). Alleging a violation of the NPDB rules, no matter the
underlying motives of the violation, does not allege a wrongful act cognizable under North Carolina
law. See 45 C.F.R. § 60.6(a) (Those entities that submit reports to the NPDB “are responsible for
the accuracy of information which they report to the NPDB . . . .”);
Accordingly, plaintiff’s claim for civil conspiracy is dismissed for failure to state a claim
pursuant to Rule 12(b)(6).
b.

Defamation Claim Against Defendant Williams

Slander is spoken defamation and libel is written defamation. Greer v. Skyway Broad. Co.,
256 N.C. 382, 390–91 (1962). As relevant here, to plead a claim for defamation per se27 in North
Carolina, plaintiff must allege that:
(1) defendant spoke or published base or defamatory words which tended to
prejudice [plaintiff] in [her] reputation, office, trade, business or means of livelihood
or hold [plaintiff] up to disgrace, ridicule or contempt; (2) the statement was false;
and (3) the statement was published or communicated to and understood by a third
person.
Cummings v. Lumbee Tribe, 590 F.Supp.2d 769, 774 (E.D.N.C. 2008) (internal quotation marks
omitted); Renwick v. News & Observer Pub. Co., 310 N.C. 312, 317 (1984) (“Under the well

27

Defamation per se means the words are “susceptible of but one meaning and of such nature that the court can
presume as a matter of law that they tend to disgrace and degrade the party.” Flake v. Greensboro News Co., 212 N.C.
780, 786 (1938).

37

established common law of North Carolina, a libel per se is a publication . . .when considered alone
without innuendo, colloquium or explanatory circumstances . . . tends to impeach a person in that
person’s trade or profession”). Alternatively, if extrinsic or explanatory evidence is needed in
connection with the words to show they have defamatory character, then plaintiff must prove
defamation per quod. Cummings, 590 F.Supp.2d at 774. This claim is composed of the same
elements of defamation per se, with the additional requirements that defendant pleads: (4) special
damages and (5) malice. Id.
ECU defendants allege that defendant Williams’s alleged defamatory statement, that he did
not authorize plaintiff initiating the procedure, is afforded both statutory and common-law privilege.
(DE 88 at 9). Regarding the former, however, the court is not aware of, nor do defendants provide,
any authority to suggest that communication from defendant Williams to defendant Cook constitutes
privilege.

See Satterfield v. McLellan Stores Co., 215 N.C. 582

(1939) (intra-office

communications may be published when the receiving party remains “distinct and independent of
the process by which the [statements were] produced,” in contrast to where a person dictates
communications to a stenographer) (citation omitted); Stewart v. Nation-Wide Check Corp., 279
N.C. 278, 283 (1971) (“In a defamation action qualified privilege is an affirmative defense . . . . The
burden is on defendant to establish facts sufficient to support this plea.”).
Regarding the latter, North Carolina recognizes a common-law privilege, in that when “an
otherwise defamatory communication is made in pursuance of a . . . political, judicial, social, or
personal [duty], . . . an action for libel or slander will not lie though the statement be false unless
actual malice be proved in addition.” Dobson v. Harris, 352 N.C. 77, 81–82 (2000) (citations
omitted). However, plaintiff has alleged that “Defendant Williams’ conduct was willful and done

38

with malice in order to harm the Plaintiff,” and that “Defendant Williams intended to retaliate
against Plaintiff for her previous complaints about sex discrimination.” (Am. Compl. (DE 67) at
38). Assuming, without deciding, that defendant Williams had a duty to report plaintiff’s alleged
actions, at this stage of litigation, plaintiff has sufficiently pleaded actual malice. See Presnell v.
Pell, 298 N.C. 715, 720 (1979) (“the complaint in the instant case specifically alleges that the actions
of the principal were taken maliciously and in bad faith. Such an allegation at the pleading stage
serves to negate the good faith element of qualified privilege.”).28
Because privilege does not apply, the court must first determine if plaintiff’s allegations are
sufficient to state a claim for defamation per se. See Renwick, 310 N.C. at 318 (“The initial
question for the court in reviewing a claim for libel per se is whether the publication is such as to
be subject to only one interpretation.”). Although ECU defendants argue that this statement can be
interpreted as “a truthful statement of his belief that intraoperative echocardiogram should have been
independently reviewed and interpreted by Plaintiff during the ‘time out period’ before the first
incision was made,” (DE 74 at 26), this assertion misses the mark in light off the allegations of the
amended complaint, which the court must accept as true for purposes of the instant motions.
Plaintiff alleges that “Dr. Williams instructed Dr. Robinson to begin the sternotomy,” and then
defendant Williams informed others that he did not, thus telling others that plaintiff performed an
unauthorized procedure on the patient. (Am. Compl. (DE 67) at 5, 21).
The court finds instructive the following:

28

ECU defendants additionally contend that plaintiff must state defendant Williams’s “exact words” in her
complaint. However, allegedly slanderous remarks need not be repeated verbatim, but they must “be alleged
‘substantially’ in haec verba, or with sufficient particularity to enable the court to determine whether the statement was
defamatory.” See, e.g., Stutts v.Duke Power Co., 47 N.C. App. 76, 83-84 (1980). Here, plaintiff alleges that defendant
Williams informed others that plaintiff performed an unauthorized surgery on a patient. These allegations enable the
court to determine whether the statement was defamatory.

39

The language “[w]e at Northern Star did not authorize such a price list,” taken in the
context of the entire letter, can only be read to mean that Ellis Brokerage Company,
acting in its capacity as broker for Northern Star, did an unauthorized act. Whether
that act was publishing certain unauthorized prices within a price list or publishing
the entire price list itself without authorization is of no import; either reading is
defamatory and impeaches Ellis Brokerage in its trade as a food broker. Whether a
publication is one of the type that properly may be deemed libelous per se is a
question of law to be decided initially by the trial court. Here, the trial court properly
treated the defendants’ letter as a publication of that type and allowed the libel per
se claim of Ellis Brokerage Company to be decided by the jury.
Ellis v. N. Star Co., 326 N.C. 219, 224 (1990).
Consistent with the North Carolina’s Supreme Court’s decision in Ellis, plaintiff has
sufficiently alleged a claim of defamation per se against defendant Williams.
Additionally, plaintiff has sufficiently alleged a claim of defamation per quod in that, as
already stated, plaintiff has sufficiently alleged malice, and additionally, plaintiff has sufficiently
alleged special damages. (See Am. Compl. (DE 67) at 38 (“Plaintiff has been denied employment
opportunities upon prospective employers learning that she is being investigated by the North
Carolina Medical Board for performing unauthorized surgery.”)); see, e.g., TMM Data, LLC v.
Braganza, No. 5:14-CV-729-FL, 2015 WL 4617326, at *5 (E.D.N.C. July 31, 2015) (citing Donovan
v. Fiumara, 114 N.C.App. 524, 527 (1994)) (“In the context of an action for [slander], special
damages means ‘pecuniary loss.’”).
Accordingly, ECU defendants’ motion to dismiss as to plaintiff’s claim for defamation
against defendant Williams in his individual capacity is denied.
4.

Declaratory Relief
The court now returns to plaintiff’s remaining claims for declaratory relief against defendant

Williams, Iannettoni, and Cook, in their official capacities. Under the Declaratory Judgment Act,
a district court may grant declaratory relief only if there is an “actual controversy.” 28 U.S.C §
40

2201. Whether the subject of a declaratory judgment action is a sufficiently live controversy rather
than an abstract question “is necessarily one of degree.” Maryland Cas. Co. v. Pacific Coal & Oil
Co., 312 U.S. 270, 273 (1941). “Basically, the question in each case is whether the facts alleged,
under all the circumstances, show that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory
judgment.” Id. Additionally, the Declaratory Judgment Act is a remedial act and did not create any
new substantive rights. CGN, LLC v. BellSouth Telecommunications, Inc., 664 F.3d 46, 55 (4th
Cir. 2011).
The facts alleged by plaintiff regarding the filing of the NPDB report do not show there is
a substantial controversy between plaintiff and ECU defendants having adverse legal interests;
therefore, plaintiff’s request for declaratory and injunctive relief is not appropriate. Because
plaintiff has no underlying federal legal claim against ECU defendants, the court lacks jurisdiction
over plaintiff’s declaratory judgment claim. See CGN, 664 F.3d at 55-56 (“[A] request for
declaratory relief is barred to the same extent that the claim for substantive relief on which it is
based would be barred.”) (citation omitted).
First, plaintiff requests the court declare that the NPDB report was false and improvidently
issued, thereby allowing the court to declare plaintiff’s status with the NPDB nunc pro tunc to
August 9, 2017. (Am. Compl. (DE 67) at 23). However, as previously determined by the court, that
the NPDB report was not false and defendant MagMutual was required to issue the report once
settlement occurred. See 42 U.S.C. § 11131(a) (“Each entity (including an insurance company)
which makes payment under a policy of insurance . . . in settlement . . . [of] a medical malpractice
action or claim shall report, in accordance with section 11134 of this title, information respecting

41

the payment and circumstances thereof.”).
Second, although plaintiff requests the court to also enjoin defendants Williams, Iannettoni,
and Cook to “take all necessary steps to void” the NPDB report and related state report, this request
for relief is only properly brought with regard to defendant MagMutual in that only defendant
MagMutual is responsible for the accuracy of the report and can take steps to alter the report. See
45 C.F.R. § 60.6(a) (Those entities that submit reports to the NPDB “are responsible for the
accuracy of information which they report to the NPDB,” and “[i]f errors or omissions are found
after information has been reported, the person or entity which reported it must send an addition or
correction to the NPDB . . . as soon as possible.”). Any direction by the court to ECU defendants
to void the NPDB report would be futile.
Finally, plaintiff requests the court declare that defendants Williams, Iannettoni, and Cook’s
investigation was “biased and incomplete,” their conduct was “unlawful,” and that the investigation
findings are “invalid and unjustified.” (Am. Compl. (DE 67) at 23-24). Although it is clear that
plaintiff challenges the effect of the issuance of the NPDB report, all of plaintiff’s claims against
ECU defendants at their roots challenge the cause of that effect, the determination by ECU senior
leadership that plaintiff was wholly responsible for the unnecessary procedure that occurred where
plaintiff alleges 1) she was told to perform the procedure by defendant Williams and 2) at all time
acted within the appropriate standard of care. (See Am. Compl. at 5-6 (“Dr. Williams instructed Dr.
Robinson to begin the sternotomy . . . . Dr. Robinson’s care and treatment of this patient on April
14, 2015 were unquestionably well within the standard of care both within North Carolina and
nationally.”)).
Although this request is at the heart of plaintiff’s cause of action, plaintiff has failed to bring

42

a claim or sufficiently allege a claim challenging the settlement determination. ECU defendants
argue, and the court is constrained to agree, that “ECU had the contractual, legal right to settle the
claim on Plaintiff’s behalf.” (DE 74 at 9; see also Am. Compl. (DE 67) at 6-7 (stating as of July 1,
2015, individual physicians insured under ECU’s policy with MagMutual did not have the right to
consent to settlement); DE 75 at 18, 41, 75 (“We will not settle the claim without the prior consent
of the individual designated by the organization listed in the ‘Policy issued to’ section of the
Declarations page.”); id. at 5 (under the “policy issued to” section of the declarations page, the 20152016 policy identifies “The Brody School of Medicine, Attn: Jody Cook—Dir Risk Management.”)).
In sum, the court lacks a jurisdictional basis over plaintiff’s claims pursuant to the
Declaratory Judgment Act against ECU defendants, as there does not exist a legitimate case or
controversy as alleged by plaintiff between plaintiff and these defendants.
5.

Constitutional Claims Unrelated to NPDB Report

Plaintiff additionally brings claims against defendants Iannettoni and Williams, in their
individual capacities, for violation of the Fourteenth Amendment regarding allegations of sex
discrimination that occurred while plaintiff was a clinical fellow at East Carolina Heart Institute,
unrelated to the issuance of the NPDB report.
Claims of discrimination in employment under § 1983 are evaluated under the Title VII
framework. See Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) (“Specifically, the
McDonnell Douglas framework, developed for Title VII, has been used to evaluate race
discrimination claims under [Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983].”); Beardsley v.
Webb, 30 F.3d 524, 529 (4th Cir. 1994) (“Courts may apply the standards developed in Title VII

43

litigation to similar [sex discrimination] litigation under § 1983.”).29
To establish a claim under McDonnell Douglas, a plaintiff must put forth a prima facie case
of discrimination by establishing that: (1) she is a member of a protected class; (2) she “suffered an
adverse employment action”; (3) her job performance was satisfactory; and (4) the adverse
employment action occurred “under circumstances giving rise to an inference of unlawful
discrimination.” Adams v. Tr. of Univ. of N.C.-Wilmington, 640 F.3d 550, 558 (4th Cir. 2011).
The fourth element is met if “similarly-situated employees outside the protected class received more
favorable treatment.” White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004); see
Swaso v. Onslow Cty. Bd. of Educ., 698 F. App’x 745, 747 (4th Cir. 2017), as amended (Aug. 11,
2017) . While a plaintiff need not plead a prima facie case to survive a motion to dismiss, a Title
VII complaint is still subject to dismissal if it does not meet the ordinary pleadings standard under
Twombly and Iqbal. See McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582, 584-85 (4th Cir.
2015); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010).30
Plaintiff again alleges her claims are supported by the general atmosphere of sexual
discrimination found at ECU. (See DE 86 at 22 (intentional discrimination is evidenced by
“Plaintiff’s descriptions of the males Defendants’ every day conduct in their interactions with female
coworkers”); Am. Compl. (DE 67) at 17-18 (alleging the department had a reputation for unequal
treatment of female employees, was not responsive to complaints of unequal treatment, had resolved

29

Title VII makes it unlawful for an employer to “discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. §
2000e–2(a)(1).
30

Similarly, but specifically in the context of a failure to hire or promote claim, the Fourth Circuit has stated
a plaintiff must show that: “(1) she is a member of a protected group, (2) she applied for the position in question, (3) she
was qualified for that position, and (4) the defendants rejected her application under circumstances that give rise to an
inference of unlawful discrimination.” Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir.
2005).

44

at least one sex discrimination complaint while plaintiff was there, had few males in clinical support
roles, had no females in leadership positions, and had advertisements depicting men in leadership
roles and women in supporting roles)).
The Fourth Circuit has instructed in the context of assessing a motion to dismiss that a court
“may infer discriminatory intent from evidence of a general pattern of [] discrimination in the
practices of defendant.” Woods v. City of Greensboro, 855 F.3d 639, 649 (4th Cir. 2017) (stating
a June 2012 study of racial disparities in contracting by the city “necessary informs this Court’s
‘common sense’ analysis of whether [plaintiff’s] allegations are plausible.”); see also Swaso, 698
Fed. Appx. at 748 (citing Woods).31
However, although general allegations of sexism may inform this court’s analysis, when
turning to plaintiff’s specific allegations against specific defendants, plaintiff’s claims are precluded
by Fourth Circuit precedent.
First, only defendant Iannettoni is alleged to have been involved in the decisions to not hire
plaintiff for the available faculty position and the available locum tenens position at ECU and to not
extend plaintiff’s contract beyond three months. (Am. Compl. (DE 67) at 16-17). Plaintiff’s
specific allegations against this defendant are that he told plaintiff she would be interviewed for a
position at ECU, did not call any of plaintiff’s references, told plaintiff she was not a desirable
candidate for the position because others found her “intimidating,” only agreed to the three

31

The court notes plaintiff’s assertion that in the ECU department of cardiovascular sciences, the faculty is
composed of 31 males and 4 females, one of whom is a Ph.D. rather than a M.D., and that there are no females in
leadership positions, (Am. Compl. (DE 67) at 18-19), provides very limited, if any, evidence of a general pattern of
discrimination in the employment practices of ECU. Although “[s]tatistics with regard to the defendant’s employment
policy and practice may be helpful . . .,” Warren v. Halstead Indus., 802 F.2d 746, 753 (4th Cir. 1986), plaintiff offers
no comparison between the department at issue and any other department in the country, and has informed the court in
other filings that approximately only three percent of cardiothoracic surgeons in the United States are women, (DE 37
at 29).

45

month-extension of plaintiff’s contract unlike when he agreed to longer extensions when asked to
do so by males, and addressed male physicians as “doctor.” (Am. Compl. (DE 67) at 16-17, 19-20).
Additionally, plaintiff alleges regarding both positions that defendant Iannetttoni hired male
applicants with “demonstrably inferior experience and qualifications” or “less relevant skills and
experience.” (Id. at 16-17, 20).
Plaintiff has failed to sufficiently plead a claim against defendant Iannettoni for violation of
the Equal Protection clause in that the facts alleged, taken as true, fail to give rise to an inference
of unlawful discrimination. In so holding, the court is guided by the Fourth Circuit’s holding in
McCleary-Evans, 780 F.3d at 586:
The allegation that the Highway Administration did not hire her because its decision
makers were biased is simply too conclusory. Only speculation can fill the gaps in
her complaint—speculation as to why two “non-Black candidates” were selected to
fill the positions instead of her. While the allegation that non-Black decisionmakers
hired non-Black applicants instead of the plaintiff is consistent with discrimination,
it does not alone support a reasonable inference that the decisionmakers were
motivated by bias . . . . McCleary-Evans can only speculate that the persons hired
were not better qualified, or did not perform better during their interviews, or were
not better suited based on experience and personality for the positions. In short,
McCleary-Evans’ complaint “stop[ped] short of the line between possibility and
plausibility of entitlement to relief.”
(citations omitted). Similar to McCleary-Evans, plaintiff alleges she is more qualified for the
positions for which she was not hired and that the decision-maker who did not hire her was biased.
See id. at 583-584. Defendant Iannettoni is additionally alleged to have told plaintiff that others
found her “intimidating” and called male doctors, but presumably not plaintiff, “doctor.” As in
McCleary-Evans, plaintiff’s complaint “stop[s] short of the line between possibility and plausibility
of entitlement to relief.” Id. at 586 (quoting Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557).
Turning to plaintiff’s specific allegations regarding defendant Williams, plaintiff alleges that

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defendant Williams had her bring him food and drink but never directed male physicians to do so,
although he did so direct nurses; addressed plaintiff and another female Clinical Fellow by their first
names and not male physicians; flirted with female physician assistants and nurses to the point of
embarrassing plaintiff; was critical of a female thoracic surgeon who he claimed did not want to
work hard because she wanted to have babies; and following plaintiff complaints of his behavior to
a female department chair in another department, would begin rounds without plaintiff and would
completely ignore plaintiff. (Am. Compl. (DE 76) at 19-21).
ECU defendants argue that plaintiff’s claim fails in that she has not asserted that any male
fellow was not asked to fetch food or drinks for attendings or was called doctor instead of by their
first name. (DE 74 at 28). The court notes, however, this may indeed be because while at ECU,
plaintiff and the other female fellow alleged by plaintiff to have received some of the same treatment
as plaintiff were the only two fellows at ECU at that time in that department. See Bryant v. Aiken
Reg’l Med. Centers Inc., 333 F.3d 536, 545–46 (4th Cir. 2003) (“This argument misapprehends the
requirements of Title VII: Bryant is not required as a matter of law to point to a similarly situated
white comparator in order to succeed on a race discrimination claim . . . . We would never hold, for
example, that an employer who categorically refused to hire black applicants would be insulated
from judicial review because no white applicant had happened to apply for a position during the time
frame in question.”).
However, taking all of plaintiff’s allegation as true, plaintiff’s claim fails because plaintiff
has failed to allege any adverse employment action. The Fourth Circuit has stated that an “adverse
employment action” is “a discriminatory act that ‘adversely affect[s] the terms, conditions, or
benefits of the plaintiff’s employment.’” Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir.

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2007) (quoting James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004)). While
“[c]onduct short of ultimate employment decisions can constitute adverse employment action,”
James, 368 F.3d at 375-76 (internal quotations omitted), abrogated on other grounds by Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)), the “typical requirements for a showing of an
‘adverse employment action’” are “discharge, demotion, decrease in pay or benefits, loss of job title
or supervisory responsibility, or reduced opportunities for promotion,” Boone v. Goldin, 178 F.3d
253, 255 (4th Cir. 1999). Plaintiff has failed to allege any adverse employment action against
defendant Williams.
In sum, plaintiff’s claims against defendants Iannettoni and Williams, in their individual
capacities, for violation of the Fourteenth Amendment regarding sex discrimination unrelated to the
issuance of the NPDB report are dismissed for failure to state a claim pursuant to Rule 12(b)(6).32
C.

Plaintiff’s Motion for Preliminary Injunction
Rule 65 of the Federal Rules of Civil Procedure allows a court to enter preliminary injunctive

relief prior to adjudication on the merits of the action. Fed. R. Civ. P. 65(a). A preliminary
injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 375-76
(2008). To obtain a preliminary injunction, plaintiff must establish four requirements: (1) likelihood
of success on the merits; (2) likelihood of irreparable harm in the absence of preliminary relief; (3)
that the balance of equities tips in plaintiff’s favor; and (4) that an injunction is in the public interest.

32

Because only plaintiff’s claim against defendant Williams for defamation survives defendants’ motions to
dismiss, it is unnecessary for the court to address ECU defendants’ argument that “[a]lthough Plaintiff has not updated
the caption of her amended complaint and continues to use loose language to ‘Defendant ECU,’ Plaintiff asserts no legal
claims against ECU. Nor could she do so given ECU’s Eleventh Amendment and sovereign immunity . . . .”. (DE 74
at 10).

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Real Truth About Obama, Inc. v. Federal Election Comm’n, 575 F.3d 342, 346 (4th Cir. 2009),
vacated on other grounds, 130 S. Ct. 2371 (2010), reinstated in relevant part on remand, 607 F.3d
355 (4th Cir. 2010) (per curiam).
As noted above, plaintiff requests in the instant motion an order requiring defendant
MagMutual void the NPDB report and take steps to render the effects of submitting the report null,
as well as an order prohibiting defendant MagMutual from filing any additional NPDB reports
concerning the procedure at issue during the pendency of this litigation. (DE 36 at 1-3; DE 55 at
8 (clarifying injunctive request is solely against defendant MagMutual)).
Because the court determined herein above that defendant MagMutual has HCQIA immunity
for submitting the NPDB report pursuant to 42 U.S.C. § 11137(c), plaintiff has not established a
likelihood of success on the merits for claim for injunctive relief to have defendant MagMutual void
the NPDB report. In addition, regarding future filings of any additional reports, given the court’s
proceeding analysis, plaintiff has failed to establish a likelihood of success on the merits for
entitlement to such relief. Accordingly, plaintiff’s motion for preliminary injunction must be denied.
D.

Motions to Seal
The parties seek to seal three types of documents that have been submitted to the court. First,

plaintiff seeks to seal documents that involve exchanges between plaintiff and the NPDB and state
licensing agencies submitted by plaintiff in support of plaintiff’s amended motion for preliminary
injunction. (DE 39). Plaintiff, on behalf of ECU defendants, seeks to seal documents that involve
patient medical records also submitted by plaintiff in support of plaintiff’s amended motion for
preliminary injunction. (Id.). Additionally, ECU defendants seek to seal a document consisting of
notes from a telephone conversation between ECU’s risk manager and plaintiff, a treating physician,

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about patient’s medical care, submitted in support of their opposition to plaintiff’s motion for
preliminary injunction. (DE 47). Finally, defendant MagMutual moves to seal documents which
consist of defendant’s insurance policies issued to the Brody School of Medicine, one of which has
already been sealed by the court, in support of defendant’s motion to dismiss. (DE 82; see DE 81).
The court considers the parties’ motions under the governing standard and determines that
the exhibits should be sealed. See Doe v. Pub. Citizen, 749 F.3d 246, 271-73 (4th Cir. 2014) (setting
forth the proper analysis on a motion to seal). The clerk of court is DIRECTED to maintain DE 383, DE 38-4, DE 46, DE 75, and DE 76 under seal.
CONCLUSION
Based on the foregoing, the court GRANTS defendant MagMutual’s motion to dismiss for
lack of subject-matter jurisdiction. (DE 78). The court GRANTS IN PART and DENIES IN PART
ECU defendants’ motions to dismiss (DE 73) and GRANTS the parties’ motions to seal (DE 39, DE
47, DE 82). Plaintiff’s amended motion for preliminary injunction (DE 36) is DENIED. Plaintiff’s
seventh claim for defamation , as alleged in the amended complaint, against defendant Williams in
his individual capacity, is allowed to proceed. (See Am. Compl. (DE 67) at 37-38). Pursuant to
Federal Rule of Civil Procedure 12(a)(4)(A), a responsive pleading from Defendant Williams is due
fourteen days hereof.
SO ORDERED, this the 3rd day of August, 2018.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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