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Sun v. Department of Veterans Affairs

United States District Court, S.D. Ohio, Eastern Division

December 6, 2019

Qixin Sun, Plaintiff,
Department of Veterans Affairs, Defendant.

          Kimberly A. Jolson Magistrate Judge.



         This matter is before the Court on Defendant's Motion for Summary Judgment. (ECF No. 18.) Plaintiff filed an Opposition to the Motion (ECF No. 21), and Defendant filed a Reply (ECF No. 24). The matter is now ripe for decision.


         Plaintiff Qixin Sun was born in China and received his medical degree in China. (Sun Dep. 28:6-22; 38:1-8, ECF No. 17.) After graduating medical school, Dr. Sun immigrated to the United States where he became board-certified in internal medicine and obtained a license to practice medicine in Ohio. (Id. 28:7-29:22, 43:18-22.) In 2005, Dr. Sun began working for the Defendant, the United States Department of Veterans Affairs (the “VA”), at the VA's Chalmer's P. Wylie Ambulatory Care Center (the “Columbus VA”). (Id. 48:8-11.)

         On December 6, 2009, Dr. Sun filed an Equal Employment Opportunity (“EEO”) complaint against the VA alleging that he was being discriminated against on the basis of his national origin (the “2009 Complaint”). (Id. 210:4-10, 212:18-22.) On February 23, 2011, the EEOC granted summary judgment for the VA, finding no discrimination. (ECF No. 21-3, at 2.) Dr. Sun appealed, and the administrative proceedings related to this complaint concluded with the denial of Dr. Sun's appeal on May 1, 2013. (Id. at 3, 5.)

         Beginning in August 2010, and until the time of his resignation, Dr. Sun was supervised by the chief of primary care, Dr. Edward Bope. (Sun Dep. 110:16-23.) Dr. Bope supervised approximately 10-12 other primary care physicians at the Columbus VA. (Id. 68:6-23; 111:19- 112:9.) Approximately half of these physicians were born outside of the United States, including physicians born in India, Pakistan, and Korea. (Id. 115:6-16.) Dr. Sun was the only Chinese physician. (Id. 115:16-22.) Beginning in March 2012, Dr. Sun's second level supervisor was the Columbus VA Chief of Staff, Dr. Marc Cooperman. (Marc Cooperman Decl. ¶¶ 1-2, ECF No. 18-1.)

         A. The Bradycardic Patient

         On September 4, 2012, Dr. Sun treated an elderly patient (the “Patient”) who had come into the Columbus VA after suffering a fall. (Edward Bope Decl. Ex. A, ECF No. 18-2.) During this visit, the Patient's pulse was measured to be very low at thirty-seven beats per minute. (ECF No. 18-5, at 44.) A low pulse is a condition known as bradycardia, which refers, at the very least, to a pulse below forty beats per minute.[1] Two days later, the Patient returned and his pulse was still very low. (Id. at 49.)

         The evidence as to whether Dr. Sun was aware of the Patient's low pulse is mixed. The medical records for both appointments documented the Patient's pulse rate. (Id. at 44, 49.) Dr. Sun acknowledges that he signed these medical records and that by signing a patient's chart he is responsible for that patient's visit, but he does not recall whether he reviewed the Patient's vital signs before signing the chart. (Sun Dep. 281:9-11, 282:17-24, 290:2-7; ECF No. 18-5, at 46, 50.) The Patient's wife recalled that during the first visit, the nurse reported the Patient's pulse to Dr. Sun and that Dr. Sun remarked that the pulse was very low. (Bope Decl. Ex. A.) During the second visit, the treating nurse recalls that she verbally notified Dr. Sun of the Patient's low pulse. (ECF No. 18-5, at 121.) Dr. Sun denies being notified of the low pulse on either occasion, and he contends that if he had been aware of it, he would have ordered an EKG. (ECF No. 18-6, at 24:10-26:9; Sun Dep. 289:18-23.)

         On September 30, 2012, the Patient's wife sent an email to the Columbus VA (the “Patient's Complaint”) complaining that Dr. Sun had ignored her husband's low pulse on the two aforementioned visits. (Bope Decl. ¶ 4, Ex. A.) The wife reported that her husband had an appointment with his urologist on September 27, 2012, three weeks after he had seen Dr. Sun, when the urologist ordered him transported to the emergency room due to a dangerously low pulse. (Id.) At the emergency room, a cardiologist determined that the Patient was in immediate need of a pacemaker, and the Patient was taken by ambulance to a hospital. (Id.)

         On October 1, 2012, Dr. Bope referred the Patient's Complaint to the Columbus VA Risk Manager, Deborah Garza, for the initiation of a confidential review by the Peer Review Committee (the “PRC”).[2] (Id.) The PRC undertakes a confidential medical quality assurance process when there is a question as to whether a physician met the standard of care. (Id. ¶ 4.) Due to a work backlog, Ms. Garza did not begin processing the Patient's Complaint until March 30, 2013, and the Patient's Complaint was not reviewed by the PRC until May 2, 2013. (Deborah Garza Decl. ¶¶ 3-4, ECF No. 18-3.)

         After the PRC's preliminary evaluation of the Patient's Complaint, on May 15, 2013, Ms. Garza drafted a letter on behalf of Dr. Cooperman notifying Dr. Sun of the PRC's initial evaluation and inviting him to attend one of the upcoming PRC meetings. (Id. ¶ 4.) On June 20, 2013, Dr. Sun attended a PRC meeting during which the PRC further reviewed the Patient's Complaint. (Id.) Subsequent to this meeting, Dr. Cooperman, as chair of the PRC, asked Ms. Garza to research the appropriate action for a VA facility to take when the information provided to the PRC “raises a significant concern.” (Cooperman Decl. ¶¶ 1, 5; Garza Decl. ¶ 5.) Ms. Garza consulted with the VA's National Director of Risk Management, who recommended that the Columbus VA initiate a management review. (Garza Decl. ¶ 5.) A management review is a third-party review by an expert to assess whether a medical provider met the standard of care. (Bope Decl. ¶ 11.) In line with this recommendation, a management review of the Patient's Complaint was conducted by Dr. Carl Bixel, a Primary Care reviewer at the Cincinnati VA. (Garza Decl. ¶ 6.)

         On July 12, 2013, Dr. Bixel provided his conclusions to the Columbus VA. (Id. ¶ 7.) Dr. Bixel found that in hindsight the Patient should have been referred to the emergency room because he was at a very high risk of falling again, but that the available information did not allow him to decide who was necessarily at fault. (Bope Decl. Ex. D, at 6.) Dr. Bixel's conclusion regarding the Patient's first visit, on September 4, 2012, was as follows:

On a busy day, a provider on a well functioning [sic] team might rely on the nurse for basic information and assume that a patient who appeared well had simply tripped and was there to have his foot injury addressed. In this scenario, it would be very easy for a competant [sic] provider to do exactly what was done. On the other end of the spectrum, if the provider was aware of the vital signs and did not perceive any problem, then the provider did not meet the standard of care.

(Id. at 7.) Regarding the Patient's second visit, on September 6, 2012, Dr. Bixel concluded:

[T]here is reason to suspect that systems issues may have interfered with the patient care. Specifically, the patient's evaluation was initially performed by a resident. Although attending physicians have ultimate responsibility for the care of patients seen by residents, in practice, the attendings remain dependent on the residents to gather and present relevent [sic] information. The available documentation does not provide any insight into what information was conveyed from the resident to the attending.

(Id. at 8.) Dr. Bixel's bottom-line conclusions were as follows:

[I]t is likely that multiple systems issues contributed to a delay in treatment of the bradycardia. [] Provider-specific issues may have contributed to the delay, but no firm conclusions can be drawn with the available information. [] With the above caveats, it is still the expectation in the VA under the current system, that providers will manage their teams and trainees in such a way that critical information will be effectively communicated. Based on the limited information available, it appears that Dr. Sun did not meet that expectation.

(Id. at 9.)

         B. Additional Concerns by the VA about Dr. Sun

         Around the time of the Columbus VA's procedures surrounding the Patient's Complaint, Drs. Bope and Cooperman began to develop other concerns about Dr. Sun, including regarding the accuracy of his medical documentation. In early 2013, Dr. Cooperman called several of Dr. Sun's patients to question them as to the care that they had received. (Cooperman Decl. ¶ 2.) Three of those patients reported receiving no examinations at all even though Dr. Sun had documented full examinations on their charts. (Id.)

         In late April and early May 2013, Dr. Bope called seven of the nine patients whom Dr. Sun had seen on April 22, 2013. (Bope Decl. ¶¶ 6-7.) Based on these phone calls, Dr. Bope determined that Dr. Sun had documented examinations on each of these patients' charts that he had not performed. (Id. ¶ 7.) Dr. Bope also called two patients who had submitted complaints to the VA's Patient Advocate about Dr. Sun. (Id. ¶ 8.) While Dr. Sun had documented that he had conducted examinations on these patients, one reported receiving no examination at all and the other reported an examination that was less comprehensive than Dr. Sun had documented. (Id.)

         On May 8, 2013, Dr. Bope met with Dr. Sun, who denied conducting incomplete examinations or documenting examinations that he did not perform. (Id. ¶ 9.) Dr. Sun also said that he may need to take some time off from work due to the stress of Dr. Bope's scrutiny. (Id.)

         Between October 1, 2012, and July 30, 2013, the Columbus VA's Patient Advocate received twenty-five comments about Dr. Sun. (ECF No. 18-5, at 24-29.) This number was the highest of the primary care providers at the Columbus VA (although the second highest total was twenty-three), with the average number of comments totaling slightly less than twelve and the median number being fourteen. (Id. at 24.) It is difficult to fully contextualize these numbers, because they include any comments about a particular provider—both positive and negative. (ECF No. 18-7, at 6:11-14.) The Court only has full information about the comments pertaining to Dr. Sun. (ECF No. 18-5, at 25-29.)

         Of the twenty-five comments mentioning Dr. Sun, twenty-four are complaints. (Id.) While not all of them are necessarily Dr. Sun's fault or can reasonably be attributed to his care, they share some commonalities. Eleven patients complained that Dr. Sun did not listen to them or that they felt that Dr. Sun did not care about them. (Id.) Two patients complained that Dr. Sun never examined them, including one who said that Dr. Sun never examined his/her feet despite the patient twice complaining about foot pain. (Id. at 26, 29.)

         C. Disciplinary Action

         On May 23, 2013, Dr. Bope notified Dr. Sun that due to his concerns that Dr. Sun was improperly documenting patient examinations, he was proposing that Dr. Sun be suspended for twelve days (the “Notice of Proposed Suspension”). (Bope Decl. ¶ 10, Ex. B.) This proposed suspension did not go into effect and was rescinded on August 5, 2013, due to the events described below. (Id. ¶ 10.) On June 13, 2013, Dr. Sun submitted an EEO complaint (the “June 2013 Complaint”) alleging that the Notice of Proposed Suspension was issued in retaliation for his 2009 Complaint. (Sun Dep. 207:5-19; ECF No. 21-5, at 1.) The June 2013 Complaint also contains allegations of national origin discrimination. (ECF No. 21-5, at 1.)

         On July 22, 2013, Dr. Sun was placed on paid administrative leave. (Cooperman Decl. ¶ 8.) Darwin Goodspeed, the Acting Director of the Columbus VA, summarily suspended Dr. Sun's clinical privileges pending review of the allegations that his physical examinations were inadequate and improperly documented, that his medical decision making was poor, and that an excessive number of patient complaints had been lodged against him. (Sun Dep. Ex. I, at 1, ECF No. 17-9.) A summary suspension would allow the Columbus VA to conduct additional investigation into their concerns while removing Dr. Sun from patient care. (Cooperman Decl. ¶¶ 6-8; Bope Decl. ¶¶ 13-15.) One week after the ...

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