Obi v. Exeter Health Resources, Inc. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Loretta Azuka Obi
v. 	Civil No. 18-cv-550-SM
Exeter Health Resources, Inc.; Core
Physicians LLC; and Barton Assocs., Inc.
REPORT AND RECOMMENDATION
Before the court is plaintiff Dr. Loretta Azuka Obi’s
“Motion to Amend the Complaint” (Doc. No. 15), filed in response
to this court’s October 2, 2018 Order (Doc. No. 13) (“October 2
Order”). 	The court construes the allegations in the instant
filing as intending to add new claims and allegations to the
claims in the underlying operative complaint and complaint
addendum (Doc. Nos. 2, 9).
Standard
In general, under Fed. R. Civ. P. 15(a), leave to amend is
to be “freely given.” 	Id. 	One ground for denying a proposed
amendment is futility. 	See Todisco v. Verizon Commc’ns, Inc.,
497 F.3d 95, 98 (1st Cir. 2007). 	To assess whether the proposed
amendment is futile, this court applies the standard for
preliminary review of claims set forth in the October 2, 2018
Report and Recommendation (“October 2 R&R”) (Doc. No. 14), which
the district judge approved in its October 27, 2018 Order (Doc.
Case 1:18-cv-00550-SM Document 23 Filed 10/29/18 Page 1 of 8

2
No. 22). 	To the extent a proposed amendment would add new
parties, the court also considers whether those new parties are
properly joined as defendants pursuant to Fed. R. Civ. P. 20(a)
and 21.
Background
Dr. Obi was a hospitalist who worked at Exeter Hospital
under contracts between her and defendants Exeter Health
Resources, Inc.; Core Physicians LLC; and Barton Associates,
Inc. 	She began the job at Exeter Hospital on December 22, 2017,
and she continued working there until she was fired on January
3, 2018, based on what she characterizes as false staff reports
and “coerced” patient complaints. 	Dr. Obi asserts that Exeter
Hospital’s true motives were to retaliate against her for
failing to engage in what she considered to be unethical or
illegal patient management decisions and fraudulent billing
practices.
After terminating her contract, Exeter Hospital withdrew
Dr. Obi’s clinical privileges and reported that action, and its
reasons for the action, to the National Practitioner Data Bank
(“NPDB”), a U.S. Department of Health and Human Services data
base which collects reports of adverse actions affecting health
care providers nationwide.1 	The New Hampshire Board of Medicine
1See U.S. Dep’t of Health & Human Servs., NPDB, About Us,
Case 1:18-cv-00550-SM Document 23 Filed 10/29/18 Page 2 of 8

3
and Dr. Obi’s past employers, including Weatherby Healthcare,
received notice of her inclusion in the NPDB. 	The New Hampshire
Board of Medicine’s subsequent investigation and proceedings
culminated in the revocation of Dr. Obi’s license to practice
medicine in New Hampshire.2
The October 2 R&R identified the claims asserted by Dr. Obi
as Claims 1-5, and recommended that Claim 2(c) and 4 be
dismissed, and that Claim 5 be dismissed without prejudice. 	The
October 2 Order granted Dr. Obi an opportunity to move to amend
her pleadings, to state sufficient facts to allow her claims of
fraud and defamation to proceed against the defendants named in
Document Nos. 2 and 9. 	Dr. Obi filed the instant motion to
amend (Doc. No. 15) in response to the October 2 Order.
Discussion
I. 	Facts Relating to Claims Identified in the October 2 R&R
A. 	Claims 2(c) and 4
In her Motion to Amend, Dr. Obi alleges new facts relating
to tort and contract claims this court has previously identified
https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp (last
accessed Oct. 1, 2018).
2A more thorough summary of the background facts asserted in
Dr. Obi’s complaint (Doc. No. 2) and a complaint addendum (Doc.
No. 9) is set forth in the October 2, 2018 Report and
Recommendation (Doc. No. 14), which the district judge approved,
see Oct. 27, 2018 Order (Doc. No. 22).
Case 1:18-cv-00550-SM Document 23 Filed 10/29/18 Page 3 of 8

4
as Claims 1-5. 	In her motion to amend, Dr. Obi specifically
accepts the magistrate judge’s recommendation that the district
judge dismiss Claims 2(c) and 4, and her defamation claims
against Barton Associates and Core Physicians. 	The new facts
asserted in the motion to amend do not alter the recommendations
in the October 2 R&R (Doc. No. 14), which the district judge
approved, see Oct. 27, 2018 Order (Doc. No. 22), with respect to
those claims and her defamation claims against Barton Associates
and Core Physicians.
B. 	Fraudulent Contract Negotiations (Claim 5)
In the October 2 R&R, the court characterized Dr. Obi’s
fraud claim (Claim 5) as intending to allege that unspecified
agents of the defendants, in negotiating contracts with Dr. Obi,
fraudulently withheld facts relating to the work conditions at
Exeter Hospital. 	The October 2 R&R recommended that Claim 5 be
dismissed without prejudice for failure to state a fraud claim
with the requisite specificity required by Fed. R. Civ. P. 9(b).
The October 27, 2018 Order (Doc. No. 22) accepted that
recommendation. 	Although the October 2 Order granted Dr. Obi an
opportunity to amend her fraud claim, Document No. 15 does not
provide any additional specific facts, sufficient to resurrect
Claim 5 or any like claim.
Case 1:18-cv-00550-SM Document 23 Filed 10/29/18 Page 4 of 8

5
C. 	Health Care Fraud
In the motion to amend, plaintiff asserts facts regarding
the power exercised by Exeter Hospital nurses, and the case
management, treatment, medical needs, and billing and coding for
insurance purposes of particular patients at Exeter Hospital.
Those allegations do not state a claim that Dr. Obi relied to
her detriment upon any fraudulent misrepresentation. 	To the
extent Dr. Obi seeks to proceed as a whistleblower on a claim of
health care fraud or fraudulent billing practices affecting the
Medicare program, under the False Claims Act, 31 U.S.C.
§ 3730(b), she cannot do so in this action, as she is appearing
here without a lawyer. 	See generally Stoner v. Santa Clara
Cnty. Dep’t of Educ., 502 F.3d 1116, 1127 (9th Cir. 2007)
(relators in qui tam actions must appear by counsel). 	The
motion to amend (Doc. No. 15) should be denied as futile, to the
extent it seeks to add a health care fraud claim to this action.
II. 	New Claims
Dr. Obi seeks to add new claims against new defendants, the
NPDB and New Hampshire Board of Medicine, as summarized below:
6. 	The National Practitioner Data Bank is liable for
tortious conduct, in that:
a. 	The NPDB published false, defamatory information
relating to Exeter Hospital’s reasons for withdrawing
Dr. Obi’s clinical privileges;
Case 1:18-cv-00550-SM Document 23 Filed 10/29/18 Page 5 of 8

6
b. 	The NPDB did not properly vet the reports
received from Exeter Hospital before disseminating
them, rendering the NPDB liable for:
i. 	Tortious interference with Dr. Obi’s
business relationship with Weatherby Healthcare;
and
ii. 	Tortious interference with Dr. Obi’s
relationship with the New Hampshire Board of
Medicine.
7. 	The New Hampshire Board of Medicine is liable under 42
U.S.C. § 1983, as its investigative process, and decision
to revoke her medical license, were biased, and constituted
an abuse of the Board’s authority, in violation of Dr.
Obi’s Fourteenth Amendment right to due process.
A. 	National Practitioner Data Bank (Claim 6)
Dr. Obi asserts claims that the National Practitioner Data
Bank failed to vet information it received from Exeter Hospital,
before publishing it in a manner that she asserts defamed her
and interfered with her business and professional relationships.
Pursuant to the Health Care Quality Improvement Act of 1986
(Title IV of P.L. 99-660), the National Practitioner Data
Bank was created as a clearinghouse for the collection and
release of certain information related to the professional
competence and conduct of physicians, dentists, and other
health care practitioners. 	The intent of the 1986 act is
to improve the quality of health care by (1) encouraging
health care practitioners to identify and discipline those
engaged in unprofessional behavior and (2) restricting the
ability of unethical or incompetent practitioners to move
from state to state without disclosure or discovery of
their previous damaging or incompetent performance.
U.S. Gov’t Accountability Off., GAO/GGD-96-101, Health Care
Fraud (May 1, 1996). 	The regulations that govern the NPDB do
not require it to screen the information that entities report to
Case 1:18-cv-00550-SM Document 23 Filed 10/29/18 Page 6 of 8

7
it. 	See 45 C.F.R. § 60.6(a) (“Persons and entities are
responsible for the accuracy of information which they report to
the NPDB.”).
The NPDB is a federal agency. 	Sovereign immunity is a
threshold issue for Dr. Obi’s claims asserting tortious conduct
by the NPDB. 	The Federal Tort Claims Act preserves the
government’s sovereign immunity for any claims “arising out of
. . . abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights.” 	28 U.S.C.
§ 2680(h). 	Dr. Obi’s proposed tort claims against the NPDB fall
within the scope of that provision. 	See Davric Me. Corp. v.
U.S. Postal Serv., 238 F.3d 58, 64 (1st Cir. 2001) (dismissing
defamation and tortious interference claims under § 2680(h));
Moessmer v. United States, 569 F. Supp. 782, 784 (E.D. Mo. 1983)
(“the weight of authority supports the proposition that claims
for interference with prospective economic advantage are
included within the section 2680(h) ‘interference with contract
rights’ exemption”), aff’d, 760 F.2d 236, 237 (8th Cir. 1985).
Accordingly, the motion to amend (Doc. No. 15) should be denied
to the extent it seeks to add Claim 6 to this lawsuit.
B. 	New Hampshire Board of Medicine (Claim 7)
The New Hampshire Board of Medicine is a state agency.
Claims for damages and injunctive relief against state agencies
Case 1:18-cv-00550-SM Document 23 Filed 10/29/18 Page 7 of 8

8
are barred by the Eleventh Amendment. 	See Town of Barnstable v.
O’Connor, 786 F.3d 130, 138 (1st Cir. 2015). 	The motion to
amend (Doc. No. 15) should thus be denied as futile to the
extent it seeks to add Claim 7, Dr. Obi’s due process and abuse
of power claims against the New Hampshire Board of Medicine.
Conclusion
For the foregoing reasons the district judge should deny
the motion to amend the complaint (Doc. No. 15). 	Any objections
to this Report and Recommendation must be filed within fourteen
days of receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2).
The objection period may be extended upon motion. 	Failure to
file objections within the specified time waives the right to
appeal the district court’s order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
October 29, 2018
cc: 	Loretta Azuka Obi, pro se
Timothy Benjamin Sweetland, Esq.
Julie K. Connolly, Esq.
Case 1:18-cv-00550-SM Document 23 Filed 10/29/18 Page 8 of 8