Wednesday, February 07, 2007

Nebraska Medical Officer in charge of determining how to discipline doctors enjoys absolute immunity from Section 1983 actions Kerrey Buser, M.D. v. Richard Raymond etc. 061655P.pdf 02/07/2007 Lexington area physician sued in federal court challenging disciplinary sanctions the Department of Health imposed on him, including a $5000 fine and practice restrictions. Disciplined physician appealed the Chief Medical Officer’s final ruling to the District Court of Lancaster County but the County District Court affirmed. Physician sued in federal court and the US District Court found absolute immunity for Dr Raymond, the Chief Medical Officer. Eighth Circuit Court of Appeals affirms, with some reservations from Judge Beam. “Applying the absolute immunity factors to the present case, we conclude that Dr. Raymond is entitled to absolute immunity; {such protection is necessary so that the Chief Medical Officer can perform his functions without harassment or intimidation; the Chief Medical Officer's absence at the hearing does not deprive plaintiff of due process because the disciplinary procedures used contain adequate safeguards, especially the CMO plays no part in initiating the investigation and instead possesses the judicial powers of administering oaths and issuing subpoenas for witness testimony and document production. Neb. Rev. Stat. § 75-155(1). Therefore, DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003) is inapposite to the instant case as Nebraska procedures afford the doctor adequate procedural safeguard. Judge Beam, concurring is concerned that the Nebraska procedures for disciplining doctors is close to the near summary methods in New York that the 2nd Circuit had found lacking in DiBlasio v. Novello, 344 F.3d 292 (2d Cir. 2003) (holding that New York medical officials were not entitled to absolute immunity from radiologist'sdue process claims arising from summary suspension of medical license:)Judge Beam comments: “review is limited to litigants in theNebraska (medical disciplinary) system. Review at the county district court under the Administrative Procedures Act is an extremely limited re-examination based on the agency record. See Neb. Rev. Stat. § 84-917. Nebraska should consider how it carries out its medical licensing revocation procedure, without undue reliance on the narrow review available in state district court, to ensure that the actions of Nebraska's CMO are well within the protections of absolute immunity and that all litigants are afforded ample due process. In this regard, it would appear to me to be more constitutionally sound for the hearing officer, who sees and hears the witnesses, views their demeanor, and is better able to judge their credibility, to make the necessary findings of fact, subject to a record review by the CMO.”

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