Robinson v. E. Carolina Univ. (329 F. Supp. 3d 156, 2018)

(SEALED)

LOUISE W. FLANAGAN, United States District Judge 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 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 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;

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 etseq. ("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 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). 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 etseq., 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 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 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 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"). 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.") ).

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.

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). The report states the responsibility for the patient's allegedly unnecessary procedure was wholly plaintiff's responsibility. The report sent to the NPDB was accompanied by a supplemental 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 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.

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 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.

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 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 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, 56 S.Ct. 780, 80 L.Ed. 1135 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. 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 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 8-13). 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, 112 S.Ct. 1081, 117 L.Ed.2d 291 (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 agency is "shown to be biased or has otherwise predetermined the issue before it." Id. at 146-148, 112 S.Ct. 1081 (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.

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 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, and 3) plaintiff's status with the NDPDB nunc pro tunc to before the report was filed. (Am. Compl. (DE 67) at 23-24). 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 Fed.Appx. 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 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.

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." 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 § 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, activities, findings, or determinations.").

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). 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, 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.

Therefore, the court must first address defendants' arguments that plaintiff has failed to 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 the failure to make a proper diagnosis of the patient's condition prior to hospital admission.") ) ).

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.

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 defendant Williams did authorize the procedure and, more generally, defendant Williams was overall responsible for the procedure.

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, 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.

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. 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. 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.

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, 92 S.Ct. 2701, 33 L.Ed.2d 548 (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, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ; Mathews v. Eldridge, 424 U.S. 319, 333-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (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, 96 S.Ct. 1155, 47 L.Ed.2d 405 (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.") ).

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, 99 S.Ct. 2642, 61 L.Ed.2d 365 (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, 121 S.Ct. 1446, 149 L.Ed.2d 391 (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, 99 S.Ct. 2642 (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, 91 S.Ct. 1586, 29 L.Ed.2d 90 (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) ("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.").

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 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 309 n.16 (citing Paul, 424 U.S. at 709, 96 S.Ct. 1155 ) ("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).

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.

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 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. 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 similarl