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Rosie Boparai, M.D v. Eric Shinseki

September 30, 2011

ROSIE BOPARAI, M.D.,
PLAINTIFF,
v.
ERIC SHINSEKI, SECRETARY OF VETERANS AFFAIRS, UNITED STATES DEPARTMENT OF VETERANS AFFAIRS,
DEFENDANT.



ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

(Docs. 65 and 102)

I. History

Plaintiff Dr. Rosie Boparai ("Plaintiff") is a primary care physician who also performs primary care dermatological services. She has been employed by Defendant U.S. Department of Veterans Affairs ("Defendant") since 2000 at the Bakersfield Community-Based Outpatient Clinic, part of the Greater Los Angeles Healthcare System. ("GLA"). Plaintiff first filed an Equal Employment Opportunity Commission ("EEOC") complaint in 2002, alleging employment discrimination. On October 17, 2006, Plaintiff filed another EEOC complaint for race and national origin discrimination against JoAnn Van Horn (direct supervisor for administrative matters), Dr. Robert Gaines (direct supervisor for medical matters), and Dr. Lisa Altman (second level supervisor). That case (EEO Case No. 200P-0691-2006103633) is still proceeding through the EEOC administrative process and is not the subject of this case.

On July 13, 2006, Plaintiff treated a patient ("Patient") for a skin rash on his legs in the Bakersfield facility. Plaintiff diagnosed the condition as dermatitis (a kind of skin inflammation) and prescribed topical steroid cream. Plaintiff saw the Patient again on August 4, 2006 and September 28, 2006. Plaintiff noted the dermatitis was improving. On October 27, 2006, Patient came to a different GLA facility in Los Angeles. There, he was seen by Dr. Mary White who ordered a biopsy which determined the Patient had skin cancer. The Patient was treated with radiation therapy but died on March 12, 2007.

On October 31, 2006, Dr. White referred the case to the GLA's Patient Safety Department over concerns about Plaintiff's treatment. GLA's peer review process involves another doctor practicing in the specialty reviewing the case file to determine what level of care was provided; the identity of the reviewer is confidential and the results of the review may only be used for limited purposes. Dr. Lester Jones, Chairman of the Peer Review Committee, initiated a peer review of Plaintiff's treatment of the Patient ("Peer Review"). One doctor reviewed the file in November 2006 and a second reviewed the file in March 2007. Both determined the care to be Level II, which means "Most experienced, competent practitioners might have managed the case differently." The results were presented to the Peer Review Committee on May 15, 2007. Dr. Jones informed Plaintiff of the Peer Review results on July 19, 2007. Plaintiff provided a written response on July 26, 2007 and requested a hearing before the Peer Review Committee. Dr. Jones left the GLA's employ and Dr. Leonard Kleinman, an existing Peer Review Committee member, took the position of Chairman. On September 18, 2007, Plaintiff spoke to the Peer Review Committee by phone. On October 16, 2007, the Peer Review Committee voted to adopt the Level II finding. Plaintiff requested further review and was told that there was no appeal procedure. The Peer Review Committee closed the case on December 18, 2007.

On February 15, 2007, his family contacted GLA's Patient Safety Department questioning the delay in Patient's care. On March 1, 2007, Dr. Jones and Dr. Dean Norman, Chief of Staff of the GLA, met with the Patient. On May 31, 2007, after the Patient passed away, Dr. Jones met with his family and made a clinical disclosure in which Defendant accepted responsibility for a delay in diagnosis ("Disclosure").

Plaintiff asserts these events surrounding scrutiny of her treatment of Patient and Disclosure are the result of retaliation for her prior EEOC complaints. Plaintiff contacted an EEOC counselor on September 7, 2007. After discussing the matter with the counselor, Plaintiff was granted a Notice of Right to File a Discrimination Complaint on December 13, 2007. Plaintiff then formally filed a complaint with the EEOC (VA Form 4939) on December 26, 2007. The EEOC accepted her complaint on February 11, 2008.

Plaintiff filed suit on September 6, 2009; she is proceeding pro se. Non-expert discovery was set to close September 16, 2010 and expert discovery was set to close December 16, 2010. Doc. 14. Plaintiff sought to extend the time for discovery but only the expert discovery deadline was extended to December 31, 2010. Doc. 56. On January 20, 2011, Defendant filed the present motion for summary judgment. Doc. 65. Plaintiff did not file any response, and the matter was taken under submission. Plaintiff then informed the court that she did not receive notice of the motion so she was given time to file an opposition. On March 9, 2011, Plaintiff also made a motion to reopen discovery. Doc. 74. On March 18, 2011, the court determined that there was no grounds to reopen discovery especially as the record showed that Plaintiff was not diligent in pursuing discovery. Doc. 77. On March 28, 2011, Plaintiff filed her timely opposition. Docs. 78-87. On April 18, 2011, Plaintiff filed an amended opposition and additional evidence without leave of court. Docs. 94-95. Defendant made a motion to strike these documents. Doc. 96. The court denied the motion, allowing Defendant to file a new reply. Doc. 97. Then, Plaintiff made another filing of additional evidence without leave of court. Doc. 100. Defendant again sought to have the additional material stricken. Doc. 102.

II. Legal Standards

Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Fortyune v. American Multi-Cinema, Inc., 364 F.3d 1075, 1080 (9th Cir. 2004). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying the portions of the declarations (if any), pleadings, and discovery that demonstrate an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). A fact is "material" if it might affect the outcome of the suit under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986); Thrifty Oil Co. v. Bank of America Nat'l Trust & Savings Assn, 322 F.3d 1039, 1046 (9th Cir. 2002). A dispute is "genuine" as to a material fact if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006).

Where the moving party will have the burden of proof on an issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact could find other than for the movant. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Where the non-moving party will have the burden of proof on an issue at trial, the movant may prevail by presenting evidence that negates an essential element of the non-moving party's claim or by merely pointing out that there is an absence of evidence to support an essential element of the non-moving party's claim. See James River Ins. Co. v. Schenk, P.C., 519 F.3d 917, 925 (9th Cir. 2008). If a moving party fails to carry its burden of production, then "the non-moving party has no obligation to produce anything, even if the non-moving party would have the ultimate burden of persuasion." Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1102-03 (9th Cir. 2000). If the moving party meets its initial burden, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party cannot "'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008).

The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Stegall v. Citadel Broad, Inc., 350 F.3d 1061, 1065 (9th Cir. 2003). Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Juell v. Forest Pharms., Inc., 456 F.Supp.2d 1141, 1149 (E.D. Cal. 2006); UMG Recordings, Inc. v. Sinnott, 300 F.Supp.2d 993, 997 (E.D. Cal. 2004). "A genuine issue of material fact does not spring into being simply because a litigant claims that one exists or promises to produce admissible evidence at trial." Del Carmen Guadalupe v. Agosto, 299 F.3d 15, 23 (1st Cir. 2002); see Galen v. County of Los Angeles, 477 F.3d 652, 658 (9th Cir. 2007); Bryant v. Adventist Health System/West, 289 F.3d 1162, 1167 (9th Cir. 2002). Further, a "motion for summary judgment may not be defeated ...by evidence that is 'merely colorable' or 'is not significantly probative.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986); Hardage v. CBS Broad. Inc., 427 F.3d 1177, 1183 (9th Cir. 2006). Additionally, the court has the discretion in appropriate circumstances to consider materials that are not properly brought to its attention, but the court is not required to examine the entire file for evidence establishing a genuine issue of material fact where the evidence is not set forth in the opposing papers with adequate references. See Southern Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003). If the non-moving party fails to produce evidence sufficient to create a genuine issue of material fact, the moving party is entitled to summary judgment. See Nissan Fire & Marine Ins. Co. v. Fritz Companies, 210 F.3d 1099, 1103 (9th Cir. 2000).

III. Statement of Material Facts

1. In 2000, the Veteran's Administration ("VA") hired Dr. Rosie Boparai ("Dr. Boparai") as a Staff Physician in the Bakersfield Community-Based Outpatient Clinic in the Greater Los Angeles Healthcare System ("GLA").

2. In February 2005, Dr. Boparai expanded her primary care practice to include some dermatology under the supervision of qualified dermatologists in Los Angeles.

3. On July 13, 2006, Dr. Boparai treated a patient ("patient") in the Bakersfield primary care clinic for a skin rash on his legs, including a spot on his right leg.

4. Dr. Boparai diagnosed the condition as dermatitis, which is skin inflammation due to direct contact with an irritating substance or to an allergic reaction, and prescribed a topical steroid cream.

Disputed.

5. Dr. Boparai saw the patient again on August 4, 2006, and noted that the condition was "improving."

6. Dr. Boparai saw the patient on September 28, 2006, and noted "slight improvement" and advised the patient to follow up as needed if there was a change in health status or a worsening condition.

7. Dr. Boparai did not order a biopsy nor did she refer the patient to a dermatologist.

8. One month later, on October 27, the patient came to Urgent Care at the VA facility in West Los Angeles, complaining of a lesion on his right leg that he had had for three months and that was not responding to topical creams.

Disputed.

9. The lesion was a 2 centimeters by 2.5 centimeters papule (a solid raised bump in the skin) that was necrotic and smelled.

10. Dr. Mary White, the Urgent Care Team Leader, ordered a biopsy which confirmed squamous cell carcinoma, a type of skin cancer, and the patient was referred to the Dermatology Department for cancer treatment.

11. The patient died on March 12, 2007.

12. Physicians at the VA are subject to Peer Review for Quality Management ("peer review") as a condition of their employment.

Disputed.

13. Peer review is a process intended to promote confidential and systematic processes that contribute to quality improvement efforts at the individual provider level, within a non-punitive context.

Disputed.

14. All deaths must be screened against death review criteria and exceptions to death review criteria.

Disputed.

15. Peer review findings are confidential and they may not be used to take personnel actions such as reassignment, changes in privileges, and demotions.

Disputed.

16. On October 31, 2006, Dr. White, the VA doctor who diagnosed the patient's skin cancer, referred the matter to the Patient Safety Department because she was concerned about the quality of care that he had received.

17. Dr. White did not know Dr. Boparai or that Dr. Boparai had any prior EEO activity.

18. Dr. Lester J. Jones, Associate Chief of Staff for Quality Assurance and Chairman of the Peer Review Committee, initiated peer review pursuant to VA policy.

19. Dr. Jones was not Dr. Boparai's supervisor and he did not know that Dr. Boparai had prior EEO activity.

20. An independent medical peer reviewer initially reviewed Dr. Boparai's care of the patient a few days later.

21. VA peer review assesses patient care as one of three levels: Level 1 - Most experienced, competent practitioners would have managed the case similarly in all relevant aspects.

Level 2 - Most experienced, competent practitioners might have managed the case differently in one or ...


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