Suspended Doctor Sues Hospital for Damages

12 wahi v. charleston area medical center other reasonable indicators of continuing qualifica- ginia state court requesting that the court intervene in the however, as the district court properly recognized, (j.a. 275), ers traditionally reserved to the state, and it does not turn dentials committee met and wahi testified, providing his mittee report and was once again notified of the rights pro- not longer than 14 days, during which an agee, circuit judge: [redacted] to discuss the july 16 letter requesting addi- plaint asked for an injunction directing camc "to remove its by failing to meet one of the subsection (c) prongs. to the (j.a. that a physician be afforded adequate and fair "procedures" concluded it "was unable to identify evidence that dr. wahi's least thirty days notice." (procedures manual 3.6; j.a. 489.) the "largest hospital," in the state, and a comment made in a camc foun- opinion procedures as are fair to the physician under the circum- 22 provides in pertinent part: a health care entity is "deemed to have met the adequate cal records (� 3.3), and notifying camc of the wahi's breach of contract and defamation claims, which three documents set forth the rights and responsibilities between our review regarding the immunity issue is limited to whether 345, 352 (1974)); see also freilich, 313 f.3d at 214 n.3 (hold- moreover, wahi apparently learned of the unauthorized sur- in a footnote in his opening brief, wahi contends that even (j.a. 645-46.) in particular, the committee cited the furthermore, the court noted that the composition of the hear- be subject to a civil money penalty of up to $10,000 order, and amending the sherman act claims to include alle- furtherance of quality health care, rently in place with intensified review as outlined in the medi- suspension, it does state that camc would be investigating ing private hospital was not a state actor because the state because 45 c.f.r. � 60.13 prohibited camc from disclosing wahi to the npdb. (j.a. 38-39.) the district court identified the claim as the credentials committee then afforded wahi, by letter of however, these failures by camc, when viewed in the total- been communicated to the camc board of trustees, and that (j.a. 49; below. iii. 28 wahi v. charleston area medical center the first, second, and fourth requirements of the subsection (a) ever wahi's objections and efforts to stop it, camc may information reported to the [npdb] is considered included the "other procedures appropriate . . . under the cir- sition of the panel, its presiding officer,24 the district court did not err in this determination. in order the hcqia only provides immunity from suits for dam- section 2.4.1, grounds for summary suspension of the proce- we find no error in the district court's conclusion that wahi color of state law deprived him of a constitutional right or a relies on this language from the 1986 house report recom- schedules." (j.a. 776.) in over 8 years since his request for a section (a)(3) without providing a formal hearing, as contem- (br. appellant 35-37.) ranted by the facts known after such reasonable derogatory reports concerning dr. wahi from the npdb" and 90.) counsel behavior by camc. in [redacted]'s july 30, 1999 letter, and that the court relief is not connected to any alleged acts of anti-competitive measured under the hcqia, as the district court properly of the sherman act, 15 u.s.c.a. � 2 (west 1997 & supp. on his reappointment. (j.a. 647.) on september 8, 1999, tee's recommendation to deny wahi's application for reappointment. (see ing: officials to make any decisions regarding a physician's hospi- 15 one for wahi's "inva[sion of] privacy, or in the alternative, wrongful[ ] required to do so; fore did not satisfy the requirements for claiming immunity summary judgment. for the reasons set forth below, fessional behavior and inappropriate personal wahi would have us read the statute by ignoring this clear west virginia, began working as a cardio-thoracic surgeon at npdb and state board of medicine, and require a court- care entity can be immune under the hcqia without having have been much clearer in setting out a cause of action, we find that it was cal privileges [were] hereby summarily suspended pursuant to "a plain reading of [the hcqia] means that only the informa- review process was still ongoing. it declined to "render advi- 5wahi v. charleston area medical center during the following year, the parties negotiated over how action shall be presumed to have met the preceding standards crotty; john does i-x, that which he is already legally bound to do is not a events which transpired, not just those wahi views as favor- for each violation. sional review action taken, or attempted to negotiate a resolution of the matter, including supra, note 25. notified camc's chief of staff, [redacted], that it was prior to or during the credentials committee meeting. (j.a. 957-60. (j.a. 282-88.) because wahi does not challenge the district action; or are invalid and contrary to law," the removal of camc's "de- the reasons for his suspension. on july 30, [redacted] which affects (or may affect) adversely the clinical privileges, or defendants. 12 ing at dr. wahi's request and give him notice of the medicine. accordingly, our review is limited to the � 1983 claims dis- on september 8, 1999, wahi, by counsel, requested a hear- claims in its october 27, 2004 order granting camc's motions under (4th cir. 2008) (unpublished) (citing tucker v. union of nee- ture upon which summary judgment for a health care entity is the board of medicine proceedings, the district court made no a "professional review action" is: of the hospital's quality assessment activities or care and safety of patients," and also told wahi that when he was entitled to immunity under the hcqia because camc f. breach of confidentiality [plaintiff's] legal conclusions drawn from the facts," nor need it "accept relevant times, he only possessed provisional privileges at camc and he camc. around the same time, he began discussions with a for the southern district of west virginia, at charleston. ceedings were dismissed, without a final disposition on the unless otherwise indicated, references to "subsection __" will refer to finding in that regard, camc assigns no error to the lack of 25wahi v. charleston area medical center camc be considered at the hearing except those mentioned tional information from wahi, wahi wrote to [redacted], 37 f.3d 1026, 1030 (4th cir. 1994)). reasonableness cient to recommend . . . that he be reappointed to the medical provide immunity from claims alleging civil rights violations, gations are not at issue in this appeal.4 him to the npdb, camc "essentially de-credentialed" him, required to do so; immunity set forth in subsection (a)(3).18 ing panel was in conformity with camc's procedures man- appears for the first time on appeal. wahi's amended com- decided: april 10, 2009 which was later rescheduled for august 17, 1999, at wahi's evidence to be considered should be raised before the hearing action' unless the state has so dominated such activity as to wahi's hospital privileges at camc. (j.a. 50.) by letter on dislike of the composition of the hearing panel, and other 8 claims the district court had not dismissed in its october 2004 id. at 954. (j.a. 278.) the district court concluded the hcqia turns camc's conduct into state action. (br. appellant 14, dr. crotty] from claims for monetary damages, that statutory 341 f.3d 461, 469-71 (6th cir. 2003). nothing in the subsec- ued after the state court case ended, with both parties setting the board on all such matters. (bylaws 8.3.1, 8.3.2.1.) (j.a. 464.) 2004 order granting camc's rule 12(b)(6) motion. accordingly, we withdrawing wahi's suspension based on a written statement 3wahi v. charleston area medical center ensure dr. wahi received adequate notice of any 2006 order dismissing his conspiracy-based � 1983 claim based on a fail- and the reasons for them, with citations to the authorities and 586.) not constitute a breach of contract. id. at 955-56. (j.a. 280-82.) required to report to the npdb adverse professional review action "affec- determining whether hcqia immunity barred wahi from credentials committee by letter dated july 16 and further dis- plies with those standards, a failure to comply with totality of the circumstances" to determine whether the action which again resulted in temporary suspensions of wahi's vaughn; john l. chapman, not give wahi a specific witness list,23 renew his clinical privileges. on september 13, 1999, camc 53). 10 association of american matter, to the local news media the fact that it had reported wahi to dation book characterizing camc as an "entirely public institution." (br. wahi's suspension, the district court found hcqia immunity must act "after adequate notice and hearing to halt the proceedings by seeking a writ of prohibition requested "an investigation and appropriate suspension of dr. 90.). the district court recognized that the hcqia does not committee meeting. and while camc had opened many of rule 12(b)(6). therefore, we conduct a de novo review of the district against charleston area medical center, inc. ("camc") this decision was made after 2 non-voting members of the board. it is charged with investigating the are fair to the physician under the circumstances." we there- camc in january 1993. (j.a. 98.) the following year, wahi ure to show any evidence that camc conspired with the state board of ing. then discussions halted,9 ing regarding both his suspension and the decision not to able to him. had camc simply set a prompt hearing, what- e. breach of contract claim hospital bylaws does not defeat a peer reviewer's 26 26 wahi v. charleston area medical center 12-15; reply br. 21-22.) we previously examined, and id. (internal quotation marks and alterations omitted). while ducted, and set out wahi's rights regarding the meeting. (j.a. [redacted], and the chairman of the credentials com- 6 pursuing the claim. (see r. 98, p. 75.) contested procedure, and setting forth why he believed it fell but are not precisely of the character spelled out in (br. appellant 37-39.) we disagree. ducts professional review activity, and includes any committee of the including the prior reports to the npdb. camc investigated immunity beyond that set forth in subsection (a)(3). although wahi that he had been requested to investigate the two claims son, and because the district court found wahi's other claims trust claims, he would not be entitled to the injunctive relief (j.a. 99-114.) the west virginia court ultimately dismissed sonable manner in light of the totality of the circum- sel access to some of the files requested in the september 8, we affirm the judgment of the district court. pension pending the credentials committee's review of his ily suspended wahi's hospital privileges and, as required by doctors from simply moving to a new state that could not discover their amicus supporting appellant. ing in this section shall be construed as � requiring the hospital to report the revocation of privileges did [wahi], could conclude that he had shown, by a preponder- that because camc failed to follow the provisions of subsec- administered hearing that satisfied wahi's various demands. 3 of � 11112(a), the "first, second and fourth prongs of the fact that a report was filed. accordingly, the district court did additional claims were subsequently voluntarily dismissed and are not review the district court's decision de novo. see supra note 26. duct with the west virginia board of medicine. ing this decision under article iii of the procedures manual. held that camc qualified for immunity under the hcqia act"), 42 u.s.c.a. � 11101, et seq. (west 2005). for this rea- sions are not exclusive. "[f]ailure to meet the conditions under the hcqia even though camc summarily suspended because "[a]lthough the hcqia immunize[d] [camc and and breach of contract claims. we address each argument ment of paragraph (3). in the camc bylaws, including providing proper confidential and shall not be disclosed outside the "adequacy" requirement even where such activities st. francis [hospital]."19 it did not base its decision that wahi was not entitled to in an imminent danger to the health of any individ- presumption that camc's actions satisfied the statutory whether summary judgment is appropriate -- "whether a rea- against the board of medicine from the supreme court of rejected, a similar argument in modaber v. culpeper memo- investigation is being conducted to deter- ary 2004, wahi filed a complaint in the united states district (r. 3.) camc filed a motion with the responsibilities of his position at camc or the con- a motion to dismiss pursuant to rule 12(b)(6). (j.a. 48.) by sions, or attach consequences to their results." id. at 1027 wahi also contends the district court erred in awarding actions against him. the many letters between the parts of the record on which the appellant relies." because as noted, the district court dismissed all but one of wahi's � 1983 objective reasonableness, viewed in light of the total- 25 patients; an objectively reasonable manner, we cannot conclude that its time, place and date . . . to the person who requested the hearing. the would entitle him to injunctive relief."13 granted motions by camc and dr. crotty for summary judg- h.r. rep. no. 99-903, at 10-11 (1986), as reprinted in 1986 analysis for the claims wahi brought against him. right to due process, in violation of 42 u.s.c.a. � 1983 (west bonasso, p.l.l.c., charleston, west virginia, for appel- on july 30, 1999, [redacted] summarily suspended camc suspended wahi's medical privileges by a letter test [for immunity under the hcqia] were also not met." (br. appeal from the united states district court that he did not address at the august 17, 1999 credentials ing the fact that camc never held a hearing regarding ct. 1955, 1965, 1974 (2007). moreover, the court "need not accept the tion between camc and the board of medicine beyond that 13wahi v. charleston area medical center under subsection (a)(3), a health care entity seeking found liable for a legal violation. copy for his use. ("procedures manual"), medical staff bylaws ("bylaws"), and medical the npdb.29,30 cumstances, and while camc argues this was a deliberate choice by wahi to the procedures outlined in its bylaws and procedures manual panel. the court entered its final order of dismissal on vacuum. these allegations were simply the latest in wahi's (j.a. 532.) a result of those investigations. wahi was aware of the conse- not at issue in the case at bar. camc makes no claim under or reappointment to the medical staff," as well as requests for changes in scheduling of" the requested hearing. (j.a. 762-63, 776.) been apprised that wahi failed to notify camc, as required august 17 meeting for the "timeline of events surrounding argues on appeal that "wahi was defamed when dr. crotty ever due process entitlement wahi may claim by virtue of the 1998). "like the state-action requirement of the fourteenth and that expressed by the plain language of the statute -- is nel; use of the hospital facilities for your patients; npdb report on appeal, that claim is abandoned. see 11126 but one of wahi's � 1983 claims against camc, finding "ut- enough in advance that all involved parties can clear their (1) in the reasonable belief that the action was in the plated in the safe harbor provisions, depending on the ments, which had not been resolved. the parties also tive damages, attorneys fees, and costs. (j.a. 92.) wahi's taken . . . against dr. wahi's license to practice medicine." 6 wahi v. charleston area medical center wahi a witness list, even if it had to be later supplemented. valuable consideration for a promise made to him, committee meeting, wahi engaged in ongoing correspon- lyzed each of the four components that a professional review before the credentials committee at the august 3, 1999 hear- claim. times, although the exact nature of each of the reports before (j.a. 752.) copies of relevant portions of camc's proce- the complaint alleged numerous state and federal claims, mended he be suspended. [redacted] cited wahi's "in- come the presumption that camc satisfied the requirements district of virginia, sitting by designation. cians receive fair and unbiased review to protect of wahi's suspension. camc later reinstated requested, has been completed." (j.a. 117.) a copy of article regarding the suspension of his medical privileges. the dis- doctor's approval before performing certain procedures and to have a statement to the media. therefore, we will not consider the rakesh wahi, m.d., appeals the district court's judgment 4 into question. the record shows that these complaints arose ingly, we find that the statute does not confer to camc pow- summarized: ing kessel v. monongalia county gen. hosp. co., 600 s.e.2d we held that a hospital's compliance with a virginia statute jersey, for amicus supporting appellant. but afforded his coun- "bound" to afford a physician the procedures set forth in its camc and its medical staff: the medical staff procedures manual is taken: rial hospital, inc., 674 f.2d 1023 (4th cir. 1982). in that case, peake health, inc., 313 f.3d 205,] 212 [(4th cir. 42 u.s.c.a. � 11112(a) (west 2005). "a professional review in november 2000, wahi filed a complaint in west vir- was not entitled to the relief he sought because the peer requirement when the totality of the circumstances are viewed or other relevant issues could have been addressed and sub- nation as to whether or not the notice given to dr. wahi satis- asked for dates for a hearing. while camc attempted to appellant 29 n.11.) other than this declarative sentence, wahi he specifically of subsection (a)(3). the same date, camc formally notified wahi that his "clini- (6th cir. 2005); gilmour v. gates, mcdonald & co., 382 f.3d close relationship with state actors such that a court would wahi's status and privileges changed in subsequent periods, but at all rakesh wahi, ical staff rules and regulations) (j.a. 550, 552- 477; procedures manual 2.1.1.1.) wahi's application thus extended his lar convention, referring only to camc, but including dr. crotty in the and [redacted] met with wahi to inform him of the sus- id. at 960. (j.a. 289- camc's actions into state action for a � 1983 claim.27 ual. rights than the ones specified under [subsection (b)]. claim that camc committed a wrong. ginia supreme court of appeals' analysis in kessel. the court wahi's continued failure to comply with the terms of his pro- wahi "without notice or a hearing." wahi also contends that confidentiality. section 60.13 guarantees the confidentiality of how discriminatory or wrongful.'" am. mfrs. mut. ins. co. v. cussed them in a meeting with him on july 17. (j.a. 575-77.) 719-20.) to relief that is plausible on its face." bell atl. corp. v. twombly, 127 s. dures manual were attached to the letter. (j.a. 752-57.) a 32 wahi v. charleston area medical center ity of the circumstances against a measuring stick of objective pointment in a detailed august 26, 1999 letter. (j.a. 644-46.) actions." debauche v. trani, 191 f.3d 499, 506 (4th cir. on october 18, 1999, camc notified wahi of the mem- dum of that meeting recites that they informed wahi that the court applies an "unconventional standard in determining" as an alternative basis for awarding summary judgment on that the witness list could be supplemented or amended in the discretion camc responds that we should not consider wahi's argument c. state actor wahi's case with prejudice. id. (j.a. 291.) sory opinions" or accept wahi's "speculation" that he would (2:04-cv-00019) tumultuous history with camc, as the august 26, 1999 cre- were subsequently dismissed from the suit, see r. 12 and 88, and are not within his clinical privileges. (j.a. 721-28.) although was entitled to immunity would be available for a hearing, and a hearing date was never before us in this appeal. ous sentence and also includes professional review activities the credentials committee met on august 17, 1999. wahi notice and hearing requirement of" � 11112(a)(3) when it sat- wahi's amended complaint alleged the following claims: (1) ommended model, it must be evaluated considering all the ment, however, was not presented to the district court and when dr. wahi requested a hearing be scheduled. with cal and hospital personnel as it relates to patient care for purposes of section 11111(a) of this title, noth- claim. the due process requirement [i.e., subsection (a)(3),] appeals of west virginia. on november 10, 2003, the pro- to defend his lack of adherence to the limitations on his privi- cine, the board undertook an investigation into wahi's suspension and as noted, the district court disposed of wahi's claim in its october [redacted] and [redacted] several times, addressing 730, 731, 732-41, and 742.) the record shows that camc � marginal indications for operative procedures; staff rules & regulations. informed wahi of the denial of his request for reappointment 14 wahi v. charleston area medical center duct of an individual physician (which conduct affects or could in any case, it is the committee's intent that physi- an agreement or conducting or scheduling a hearing. in janu- dures manual, `for the best interest of patient care.'" (j.a. 17-20.) wahi noted a timely appeal, (j.a. 292-93), and we have raised in the credentials committee's letter. [redacted] lees. on brief: john c. yoder, harpers ferry, west vir- tion. id. at 955. (j.a. 279.) recognizing that the hcqia does without conducting a post-suspension investigation, camc the chief operating officer at camc. (j.a. 70, 117.) [npdb] either directly or from another party must court erred in holding that camc14 under camc policy, an application for reappointment automatically the district court erred in dismissing his claims seeking by a separate letter, also dated august 26, 1999, camc . . . waived it on appeal"). furthermore, because wahi did not subsection (b). . . . if other procedures are followed, take an action or make a recommendation described in the previ- manual. he was not a first-time offender who was unfamiliar has begun without amending his complaint. barclay white 13 tention that camc did not inform him more specifically of virginia state court to enjoin his requested hearing unless following the provisions of subsection (b) is but one way a ultimately filed a complaint against him in september 2001 to determine injunctive relief." wahi, 453 f. supp. 2d at 960. (j.a. 289- he sought in his amended complaint. wahi's amended com- its evaluation of your ethical behavior, clinical com- including anti-trust violations of the sherman act, against panel be used, that no matters of wahi's medical practice at second, and fourth prongs of the subsection (a) immunity injunctive relief because the hcqia only provides immunity and imposed restrictions, including temporary suspensions, as [his] privileges" at camc. the letter also emphasized to for the fourth circuit procedures for decisions regarding applicants for for a while, discussions between wahi and camc contin- satisfactorily treat patients as indicated by the results lastly, even if wahi succeeded on the merits of his anti- summarily suspended him for more than 14 days without first provided a list of witnesses to wahi "within ten days" of his request, and v. 117.) his suspension was to "continue until resolution of forming some procedures entirely. (j.a. 516-33, 655.) we review this claim de novo, under the traditional principles set forth camc's "amended reports published by [camc] to the 31. the district court expressly recognized this limitation, and 22 wahi v. charleston area medical center tation marks omitted). presumption that camc afforded him "other procedures as immunity, as a matter of law, because it did not comply with reasonableness, do not show wahi met his burden of proof to between camc and wahi. (j.a. 280-82.) wahi asserts the available dates for his hearing because "the hearing will take receiving information that wahi performed a [redacted], ual, and that any objections about the hearing panel or the or the orderly operation of hospital, and your general prong of subsection (a)(3). similarly, camc should have fol- appoint a panel of not less than three members, none of whom are in direct claim or add a new defamation claim based on dr. crotty's [redacted] also informed wahi that he should respond statute. subsection (c) sets forth limited circumstances in tions. camc complied with its procedures manual in this intentionally disclosed to the local media that camc had lastly, in considering whether the procedures provided by 20 which a health care entity can act with immunity without sat- 277, 283 (4th cir. 2004) (en banc). "summary judgment is appropriate if vard, inc., 58 f.3d at 993 n.7 (involving predecessor to fed- which is taken or made in the conduct of professional review wahi also sought a ciple limits the reach of judicial decrees to parties the pleadings, depositions, answers to interrogatories, and admissions on while camc's path to immunity in this case is not a rec- for which he did not have privileges. circumstances in this case show that wahi received "other alternative prong. however, as the court of appeals for the the action on december 6, 2001, after concluding that wahi forth in 42 u.s.c. � 11112(a), and concluded that camc ful- sensabaugh & bonasso, p.l.l.c., wheeling, west ure to meet the standards of subsection (a)(3)." � 11112(b)(3). dismissing his state law defamation, breach of confidentiality, held, along with the fifth, sixth, seventh, and eleventh cir- cer at camc during the relevant period of wahi's employment; he is now wahi's clinical privileges on a provisional basis.3 privileges of a physician." see 42 u.s.c.a. � 11133. accord- ing the safe harbor provisions of subsection (b), those provi- each of [camc's] medical staff departments" and two non-physician ical privileges. he also requested access to certain records medical staff was bound to initiate and adopt bylaws, "[i]t would be premature for the court to make any determi- in the meantime, the west virginia board of medicine filed wahi's request. over the next two weeks, wahi wrote to app. p. 28(a)(9)(a); see also 11126 baltimore boulevard, inc. v. prince tion of clinical privileges, subject to subsequent virginia corporation; glenn 1312, 1315 (11th cir. 2004); shanahan v. city of chicago, 82 reappointment. the district court erred in determining that wahi did not over- cumstances" language contained in the statute in contrast to not "authorize state officials to make privileges decisions, or wahi specifically alleges camc "violated the confidentiality of reports to defendants-appellees, mine the need for a professional review iii of the procedures manual was attached to the letter, and the procedures manual.22 the hcqia provides a "professional review body"15 richard d. jones, flaherty, sensabaugh & appeared before it and presented his case. the committee tions; your satisfactory completion of such continu- a. hcqia immunity published attitude toward patients, the hospital and its person- than having one. was subject to numerous restrictions, such as being required to get another wahi has failed to comply with the specific dictates of rule president of camc "shall schedule the hearing and shall give notice of [subsection (b)], the test of "adequacy" may still be 24 [redacted] 7 ering the recommendations of the chief of staff and the chairman of the of his clinical privileges and of his right to a hearing regard- whether disciplinary action should be taken regarding wahi's license to entity must nonetheless include a hearing. in particular, wahi tal's bylaws constitute a contract between the physician and dismissing his numerous state and federal claims brought though the "primary focus of this appeal is the failure of of the basis for camc's actions. however, the parties were fails to raise any argument to support his claim that the first, circumstances of a particular case. rather, congress' intent -- and npdb on june 10, 2003, were false and defamatory, per se." 42 u.s.c.a. � 11151(9) (west 2005). immunity based on (c)(1) or (c)(2), the only significance is gery allegation against him even prior to [redacted]'s based reasons for awarding camc summary judgment on co., 895 f.2d 1073, 1078 (5th cir. 1990)). wahi never wahi, 453 f. supp. 2d at 950. (j.a. 270.) we find no error in asked wahi to "respond to each of the [allegations] in writing hearing, wahi has yet to provide camc with any dates when cal staff procedures manual."7 on august 26, 1999, wahi received the credentials com- action"16 9wahi v. charleston area medical center (a) where there is no adverse profes- 404 f.3d 227, 236 n.5 (4th cir. 2005) (stating that a party who department of health and human services . . . . per- stances," and entitle camc to the hcqia immunity. hearing shall begin as soon as practicable, considering the schedules and hearing or meeting that was to occur in the proposed presiding officer to schedule and conduct the hearing in action must possess in order to qualify for immunity, as set to support his argument, wahi contends that by reporting � failure to comply with responsibilities set forth (br. appellee 39-40.) 28(a)(9)(a), we conclude that he has waived his claims as to privileges. the credentials committee then makes a recommendation to 17wahi v. charleston area medical center was repeatedly notified of his rights and given multiple copies wahi violated the terms of his provisional clinical privileges, ing education requirements as may be imposed by incorporated, right conferred by a law of the united states. see dowe v. (1) requiring the procedures referred to in subsec- because camc qualified for immunity from suit under the by which the subsection (a) immunity prong may be obtained. plaint states as the sole basis for his defamation claim that ever, we conclude the district court did not err in determining standards have been consistently upheld in the con- quences for failing to abide by the bylaws and procedures the npdb" by disclosing to the local media the fact that it had reported committee and the board of trustees which ensures adequate notice and hearing or other adequate procedures, the district court incorrectly identified this letter as one addressed tion (a)(3) phrase "such other procedures as are fair . . . under such other procedures as are fair to the physician under the npdb report. id. (emphasis added). it therefore does not pre- decision on the merits of the allegations. (j.a. 147-180, 254-55, 701.) extends the current appointment period until the request is acted on. (j.a. the actions of individuals who "receive information from" an exceptional circumstances"). (compare j.a. 28-30, with r. 24 pp. 13-14.) 9 following 4 wahi v. charleston area medical center prior poor performance. under the hcqia, hospitals are generally (j.a. 50, 517-71.) set. (j.a. 760.) the hearing would be conducted. wahi objected to the compo- 294; 511-16.) following wahi's reinstatement, camc nature of the violation determines the scope of the his provisional privileges and not complied with the camc but granted camc summary judgment on wahi's � 1983 tain professional review activities or actions, such as declaration "that the reports made by [camc] to the npdb as soon as possible." attached to the letter were the relevant the claims against all but one of the other defendants, dr. crotty, all of the provisions in subsection (b), fails under the plain concluded camc's bylaws did not constitute a contract be granted, but that his privileges remain restricted "as cur- bylaws when he failed to notify camc that he had relin- dence. � 11112(a). the applicable standard is one of visional clinical privileges. the credentials committee plaintiff-appellant, wahi also contends that camc's failure to follow some of 27 fies the `fair procedures' requirement." (j.a. 141.) sequence of some wrong. at its most basic, this prin- immunity protected camc against wahi's claims for viola- compliance with applicable law should satisfy the issue de novo. hill v. lockheed martin logistics mgmt., inc., 354 f.3d availability of all concerned, provided that [it] shall not begin without at wahi would be given the opportunity to meet with them (j.a. 115, 575-76.) hearing "to determine whether disciplinary action should be disjunctive, the statute contemplates two independent avenues see bacon v. city of richmond, 475 f.3d 633, 638 (4th cir. 21 ter. instead, it simply requires hospitals to report to the npdb ultimately dismissed the charges in november 2003 without reaching a ii. f. supp. 2d 942 (s.d.w. va. 2006). (j.a. 262-91.) the court (br. appellant 12-15; reply br. 21-22.) to state a claim wahi was informed that he "may wish to avail [himself] of "wahi fail[ed] to make any argument or allege any facts that afforded to the physician involved or after such other required by statute, reported wahi to the npdb a total of five wahi's clinical privileges" in light of this new information of [wahi's] request for reappointment and any appeal/hearing, if george's county, 58 f.3d 988, 993 n.7 (4th cir. 1995) (en banc) (involv- if this were not so, congress would have no reason to have not afford immunity from claims for injunctive relief, the dis- dated july 30, 1999 from [redacted], which recited the portions of the bylaws pertaining to the alleged violations. has been given. (j.a. 489.) record of patient care (�� 2.1 and 2.7 of the med- article iii of the procedures manual set forth wahi's right to a hear- v. prof. transp. inc., 294 f.3d 607, 614 (4th cir. 2002) (stating that issues hcqia immunity is not coextensive with compli- the governing body or any committee of a health care entity which con- relating to a professional review action. offer even a scintilla of evidence that there was communica- from the time of his suspension through the credentials as a result of camc's september 1999 report to the board of medi- which he was not permitted to do under the terms of his provi- neither party conferred on the other any more than an injunction requiring camc to provide him a hearing and by a preponderance of the evidence." id. hearing. dr. wahi was represented by counsel clinical competence [and] professional judgment . . . are suffi- ("credentials committee") recommended that wahi's request "failed to raise [an] argument before the district court . . . has necessary standards for immunity unless this pre- never held a hearing regarding wahi's suspension, and there- rescinding its earlier recommendation to renew wahi's provi- petence and clinical judgment in the treatment of approve the bylaws of the medical staff, and the dletrades, indus., & textile employees, 407 f.3d 784, 788 on-going discussions between wahi and camc regarding at least sufficient for him to have preserved the issue raised on appeal. a period longer than 30 days"). ing whether a health care entity has met these four require- criteria were not met.17 (j.a. 647.) the letter also informed wahi his suspension contrary, subsection (c) presents additional routes to hcqia what the law already required. thus, we conclude wahi has never provided camc with any dates on which he aware, for example, that some courts have already under the act. (br. appellant 18-30; reply br. 2-15.) how- vacy, . . . or in the alternative, a wrongful disclosure of private facts." actions invalid, require camc to withdraw its reports to the (j.a. 644-47.) itself a state actor, but he makes no argument related to the september 29, section (a)(3). while a health care entity is "deemed to have by order dated september 29, 2006, the district court missal of dr. crotty as a co-defendant," even though he refers to camc contract, and defamation claims, wahi must have a viable ages. 42 u.s.c. � 11111(a)(1); see imperial, 37 f.3d at 1030- and defama- "prior to any final recommendation." (j.a. 572-73.) absent. this court has held that the doing by one of "the term `professional review body' means a health care entity and its files to wahi and his counsel, some items wahi had camc to schedule a hearing," as required under subsection cal privileges at another hospital. the credentials committee affect adversely the health or welfare of a patient or patients), and "best interests of patient care" as the reason for the action. procedures as are fair to the physician under the cir- 11wahi v. charleston area medical center satisfies the � 11112(a) provisions. imperial v. suburban of documents explaining these rights. he was repeatedly activity, which is based on the competence or professional con- the procedures manual provides that the president of camc "shall on november 30, 2000, wahi filed an action in the west sons and entities which receive information from the provided wahi with notice of the most recent allegations no. 06-2162 amendment, the under-color-of-state-law element of � 1983 proven camc's race-neutral reason for its actions were pretextual. id. at that meeting and his application to renew clinical privileges. beckley, west virginia medical group about the possibility of includes a formal decision of a professional review body not to it is at the least disingenuous to now claim his right to a hear- tion of clinical privileges, for a period of 99, 112, 99-114.) summary judgment25 associating with them. in november 1996, camc temporar- have a hearing. viewing the totality of these circumstances in conclude that the non-state actor is engaged in the state's the procedures manual stated that once a hearing is requested, the provisional privileges at camc, and had requested reappoint- formal hearing as a mandatory condition precedent to satisfy- omission. (j.a. 59-61.) the district court also dismissed all trict court dismissed those claims based on its conclusion that described [in subsection (b)] shall not, in itself, constitute fail- ments, the court applies an objective test that "looks to the when not argued on appeal). in addition, wahi also cites camc's "extensive programs and merger detailed credentials committee report of august 26, 1999. he this meeting is your opportunity to present the com- wahi's state law breach of contract claim, the district court your physical and mental health; your capacity to necessary for [immunity] unless the presumption is rebutted against him, and an opportunity to respond to those allega- i. inadequacy of notice, defective witness list or discovery, the to set forth directions governing the outcome of such deci- circumstances." � 11112(a)(3) (emphasis added). stated in the the circumstances" mandates by-law compliance as the sine ing, (j.a. 576), which was rescheduled for august 17 at for the foregoing reasons, we affirm the judgment of the accord wahi a hearing in conformity with the procedures 20 wahi v. charleston area medical center court's decision, mylan labs, inc. v. matkari, 7 f.3d 1130, 1134 (4th cir (footnotes omitted). for these reasons, we held the virginia hospitals abide by the law. (br. appellant 25-26; reply br. procedures manual 2.3.4.2, 2.4.3, 3.1; j.a. 484-87.) directly to wahi. there is no indication in the record that wahi received of confidentiality," which are two separate torts under west virginia law. and the use of any medical staff of such an entity when assisting the governing body in a pro- isfying all of the conditions in subsection (a). subsection (c) accordingly, we hold the district court did not err in award- wahi cites the legislative history of subsection (a)(3) to parties illustrate the hospital's attempts to set a hear- sion of privacy or wrongful disclosure claim, concluding that privileges in 1998 and 1999. from 1996 to 1999, camc, as complaints calling his professional competence and conduct effort to obtain facts and after meeting the require- immunity from damages whenever a "professional review december 6, 2001. was on notice of the many charges against him, including the appellant 12-15; reply br. 21-22.) these arguments were raised for the wahi's argument does not properly follow the west vir- court's disposition of this claim, it is not before us on appeal. see fed. r. for summary judgment, which the district court construed as wahi to provide "a series of convenient dates . . . for the 2007) (quoting swann v. charlotte-mecklenburg bd. of educ., that the medical staff bylaws do not constitute a con- 1999). "[p]rivate activity will generally not be deemed `state fore affirm the district court's holding that camc is entitled 14 can always be met by the procedures specified in by letter dated july 16, 1999, [redacted] informed erated the rights due wahi under article iii of the procedures conspiracy to deny due process claim because "wahi [did] not trict court concluded most of wahi's claims were barred met with the credentials committee, he should "be prepared cannot claim immunity under the hcqia. wahi misreads the d. defamation claim a power that is "reserved exclusively to state government" and jected to judicial review. in the face of wahi's recalcitrance, [t]he essential element of valuable consideration is in an objectively reasonable manner. carved out in � 11112(c). wahi contends that since camc u.s.c. � 1 (2000); (2) anti-trust monopolization, in violation with the presumption that the hospital has met the sonable jury, viewing all facts in a light most favorable to the district court erred in determining wahi failed to rebut the the first avenue, "adequate notice and hearing procedures," is finding that he posed an imminent danger to his patients and tinue treating two patients "currently in house" and that care of all of practicing medicine. (j.a. 68-92.) scope of section 11112(a)." gabaldoni v. washington county by the by-laws, that he had voluntarily relinquished his clini- � failure to comply with and repeated violation of united states court of appeals he understood questions had arisen regarding his decision to therefore, wahi's argument that camc is not entitled to maintain "jurisdiction over the administrative hearing." (j.a. disclos[ure of] private facts." (j.a. 63.) although wahi's complaint could effort during this time period to pursue a hearing at camc. health care entity can comply with the requirements of sub- receive an unfair hearing. (j.a. 143, 131-46.) in the initiatives of a private party' is insufficient." id. at 507; center, incorporated, a west 339-97, 496-571.) joseph r. goodwin, chief district judge. (j.a. 645.) ability to follow procedural guidelines outlined by the ity of the circumstances. freilich[ v. upper chesa- 3 argument presented and ruled upon by the district court when cies; and other relevant findings from camc's and physicians and surgeons, 31wahi v. charleston area medical center 18 composition of the hearing panel, the conduct of the hearing, � 11133(a) (requiring health care entities to report "professional review in applying the test outlined in � 11112(a), we begin under � 1983, a plaintiff must aver that a person acting under camc is a privately-run hospital operating in charleston, failed to allege that camc's conduct constituted a breach of statute of limitations and also failed on the merits because wahi had not we review the district court's grant of summary judgment on this filled each requirement. id. at 948-55. (j.a. 266-79.) regard- wahi challenges the district court's determination that camc was not sional clinical privileges. the credentials committee had also wahi's defamation claim on appeal is therefore not the one � poor decision-making in the care of some the abstract; rather, they flow from and are the con- ing analysis of his civil rights claims, which failed. hcqia immunity test on appeal. see 11126 baltimore boule- wahi next asserts that camc is not entitled to immunity (2) after a reasonable effort to obtain the facts of the 12(b)(6) motion, "[f]actual allegations must be enough to raise a right to credentialing decisions to the npdb does not authorize state accordance with . . . article iii," and again forwarded wahi as a matter of law." id. (internal quotation marks omitted). we construe behavior in the hospital, your cooperation with medi- excludes from its reach `merely private conduct, no matter summary judgment on his defamation claim.28 received reports of and investigated several allegations that ("npdb"),2 the hospital was already bound by [state] law to "[i]nformation reported to" the npdb and specifically limits previous year's appointment until final disposition of his application for behavior among nursing staff; the claims that wahi had again exceeded his authority under [redacted] and [redacted] also agreed that wahi could con- any argument or allege any facts that would entitle him to � performance of an operative procedure camc by-laws, his arguments are subsumed by the forego- 532-33, 572.) in may 1999, the camc credentials committee6 policies, and the charges and evidence the hospital adverse professional review action "affect[ing] the clinical required by law." id. (j.a. 288-89.) accordingly, the district by-laws specifically so provide. id. at 327. there was no such missed in the district court's october 2004 order. terminate or reappoint any particular physician"). where the failure to take such an action may result any person who violates [the above provision] shall npdb list, monetary damages will not restore his ability to 17 subsections of 42 u.s.c. � 11112. � failure to obtain a second opinion when 1999 to review his performance and consider his application, kloth v. microsoft corp., 444 f.3d 312, 319 (4th cir. 2006) (internal quo- stances in this case and took sufficient measures to ously been suspended at least three times for violation of his hospital, which the hospital allegedly breached. id. at 326. sequences for his failures in july 1999. (j.a. 130-31, 248-53, recommendation at that time. incident or discipline during his medical practice at camc 34 wahi v. charleston area medical center "character, professional competence, qualifications and ethical standing b. injunctive relief action[s] that adversely affect[ ] the clinical privileges of a physician for 28 ment on all counts. wahi v. charleston area med. ctr., 453 fifth circuit recently observed, the charges in writing, and providing documents supporting by letter dated july 8, 1999, the credentials committee crotty1 text of qualified immunity. freilich, 313 f.3d at 213. ing predecessor to federal rule of appellate procedure 28(a)(9)(a)). powers traditionally exclusively reserved to the state.'" id. at been through the suspension process previously at camc, evidence is that camc acted in an objectively rea- qua non for immunity, although from a practical standpoint, ing based on both the summary suspension and the credentials commit- failed on the merits, the court awarded camc and dr. glenn on appeal, wahi's primary argument is that the district (2) precluding an immediate suspension or restric- fill its obligations under � 11112(a)(3) by a prepon- gations of an effect on interstate commerce. (j.a. 68-93.) hosp. ass'n, 250 f.3d 255, 260 (4th cir. 2001). in determin- appellees' motion, and draw all reasonable inferences in his favor. see id. met under other prevailing law. the committee is the district court's determination that wahi failed to rebut the purpose and instead find that the hcqia immunity is barred 2008); see also meyers v. columbia/hca healthcare corp., taken in bad faith to prevent competition by monopolizing the rashid; k. c. lee; andrew their reputations and medical practices. (3) after adequate notice and hearing procedures are forth various parameters and details of the conduct of a hear- a complaint against wahi on september 10, 2001, and set a between july 16 and july 30, in addition to meeting with played no role in the "actual decision as to whether or not to response to the allegations against him. the credentials com- mending the adoption of the hcqia: bylaws constituted a contract between the plaintiffs and the perform the procedure, explaining his decision to perform the trict court's determination that camc was not a state actor the statute imposes a uniform set of national stan- 321 (w. va. 2004), wahi contends that because a hospital is the health care entity are fair "under the circumstances," the informed [redacted] that its recommendation had not 63-64.) 30 2008); (3) breach of contract and implied covenant of good 18 wahi v. charleston area medical center dr. crotty served as executive vice president and chief medical offi- 1 statute did not "involve the `exercise by a private entity of begin that review by underscoring the unique procedural pos- wahi contends camc published the "defamatory reports to immunity applied. the district court provided non-hcqia- from a multitude of discrete incidents, were made by different summary judgment as to wahi's breach of contract claim: camc com- wahi may be correct that the facts show camc cannot assert ion, in which judge gregory and judge smith joined. he would be available for a hearing. mittee with additional information that is pertinent to letter because on july 15, he wrote to [redacted] stating practice, and the public possesses a strong interest in ensuring camc also filed several reports regarding wahi's professional con- omitted). wahi has not made the requisite showing for any of � 11112(c). t[ing] the clinical privileges of a physician." see 42 u.s.c.a. eral rule of appellate procedure 28(a)(9)(a)). accordingly, (see, e.g., j.a. 118-30, 654.) on august 17, 1999, the cre- as true unwarranted inferences, unreasonable conclusions, or arguments." many cases. 16 federal rule of appellate procedure convert it to state action: `mere approval of or acquiescence sumption is rebutted by a preponderance of the evi- requested had not been disclosed due to privacy disagree- camc argues, and the district court held, is that the unique see also dowe, 145 f.3d at 659. reported wahi's summary suspension to the npdb, (j.a. 21wahi v. charleston area medical center in his opening brief, wahi states that he "is also appealing the dis- 2005); (5) defamation; and (6) violation of his civil rights west virginia. wahi, who is licensed to practice medicine in (j.a. 289-90.) instead, it concluded wahi "fail[ed] to make camc was entitled to immunity under the particular facts of 7wahi v. charleston area medical center 27wahi v. charleston area medical center met" the subsection (a)(3) immunity requirements by follow- raised for the first time on appeal "are generally not considered absent had against him. the hospital responded promptly clinical privileges at a hospital. in those situations, right to hcqia immunity from damages. ing was infringed when he has done all he could do not to application for reappointment. [redacted]'s memoran- relief above the speculative level" and have "enough facts to state a claim camc peer review process, declare certain of camc's 29 leges as well as his absence of notification of suspension from unable to reach an agreement. (j.a. 760-83, 118-30.) 1993), accepting all allegations in wahi's complaint as true. republican (j.a. 149.) wahi and the board of medicine engaged in pro- tracted litigation, which included wahi's unsuccessful attempt quality of care (� 3.2), maintaining proper medi- poliner v. tex. health sys., 537 f.3d 368, 380-81 (5th cir. request. (j.a. 742.) ance of the evidence, that [camc's] actions fell outside the district court. (� 3.6); and vided in article iii and that he had 30 days to request a hearing.21 have been within its rights to do so and may have met the first law, the hospital or applicable accreditation agen- tract [absent express language to the contrary]. in time was the filing of wahi's complaint in the district bers of the hearing panel and asked wahi to "work with the ness list and a number of specified documents. (j.a. 648-53.) 1995, wahi had been the subject of numerous reports and due to the presumption of immunity under the hcqia, a or actions require different or fewer due process lowed its bylaws and the procedures manual, and provided any rights available to [him] under article iii." (j.a. 117, from suits for damages. in addition, wahi challenges the dis- july 1999 allegations against wahi cannot be considered in a a hospital may be required to follow its by-laws as a due pro- by august 1, 1999. (j.a. 965.) cess component, there is no contractual relationship unless the derance of the evidence. the overwhelming � 1983 (2005). lastly, wahi asserts the district court erred in ance with an individual hospital's bylaws. rather, order, inter alia, that his method of selection for the hearing injunctive relief on camc's immunity under the hcqia. to pursue injunctive relief to redress his anti-trust, breach of argue his claim of defamation based on the filing of the medical staff bylaws and rules and regulations; bylaws, "noncompliance with those provisions compels the 402 u.s. 1, 16 (1971)) (internal quotation marks and citations as the "appellant." (br. appellant 3.) the district court similarly analyzed was provided. . . . separate letter informed wahi how the meeting would be con- health care quality improvement act ("hcqia" or "the proctor present during other procedures. wahi was also barred from per- 30 wahi v. charleston area medical center the npdb with reckless disregard for the truth" and therefore manual, wahi seemed more intent on forestalling a hearing party v. martin, 980 f.2d 943, 952 (4th cir. 1992). to survive a rule plied with the procedures outlined in its procedures manual and those aspects of the conduct of a hearing. camc repeatedly asked wahi asserts the district court erred in determining camc sherman act claims for failure to allege an effect on interstate 962.), and to the west virginia board of medicine. (j.a. 701.) with" west virginia university (a public institution), camc's status as provision in kessel, and there is none in the case at bar. what- baltimore boulevard, inc., 58 f.3d at 993 n.7 (issue waived 15wahi v. charleston area medical center overarching contention was that camc's decisions to sus- it also held that wahi's � 1981 claim was barred by the applicable loss of clinical privileges at any other hospital because it failed to satisfy the exceptions from immunity an action or recommendation of a professional review body f.3d 776, 781 (7th cir. 1996); and fisher v. metro. life ins. u.s.c.c.a.n. 6384, 6393. nothing in this legislative history presented in his amended complaint. we have previously quished his privileges at another hospital. wahi had previ- field of cardiac surgery in the region and to prevent him from throughout the process and in the end, he was 19wahi v. charleston area medical center amended his complaint to change his existing defamation required by federal law, and that camc's bylaws did not constitute a with regard to professional review actions, which could be 19 sional clinical privileges.8 mittee recommended denying wahi's application for reap- ginia, for appellant. david s. givens, flaherty, by-law compliance may often be proof of such procedures in wahi's patients would be transferred to another physician or discharged since it gives to the promisor nothing more than that 1999 is not in the record. these prior suspensions and investi- charleston area medical 29wahi v. charleston area medical center (j.a. 965.) the suspension letter reit- 16 wahi v. charleston area medical center (b) in the case of a suspension or restric- informed and fully aware of his rights, the hospital's for a reasonable jury to find that camc failed to ful- 23 skanska, inc. v. battelle mem'l inst., 262 fed. appx. 556, 563 wahi has also appealed, and which we discuss below. 5 remedy. remedies, in other words, do not exist in mittee in order to provide an explanation of the events sur- 1027 (quoting jackson v. metropolitan edison co., 419 u.s. 8 wahi v. charleston area medical center � 1983, and therefore not amenable to suit under that statute.26 sullivan, 526 u.s. 40, 50 (1999). consequently, "[t]he person virginia, for appellees. andrew l. schlafly, far hills, new wahi's complaint appears to merge an allegation of "invasion of pri- ment for "an additional year ending february 26, 2000."5 something other than a formal hearing in some circumstances. practice medicine. after protracted proceedings, the board of medicine fessional review activity." 42 u.s.c.a. � 11151(11) (west 2005). wahi that assert that the "other procedures" undertaken by a health care wahi contends that the district court erred in awarding argued: december 2, 2008 district court erred because, under west virginia law, a hospi- staff."20 started his own practice, but retained clinical privileges at lant's opening brief must contain the "appellant's contentions tion (b), it does not qualify for immunity under the hcqia. because wahi's complaint asserted "invasion of privacy," and not "breach wahi asserts the district court erred in determining camc faith and fair dealing; (4) conspiracy to deny his constitutional � multiple incident reports surrounding bizarre pro- that prong and the district court did not consider it. what not err in granting camc's rule 12(b)(6) motion as to this the medical staff's quality assurance activities. the evidence in the light most favorable to wahi, the party opposing the 23wahi v. charleston area medical center vent the entity who reported npdb from disclosing the mere august 13, 1999, the opportunity to review the file for the court for the southern district of west virginia. before gregory and agee, circuit judges, and rebecca commerce, but granted wahi leave to amend to remedy that similarly, the federal statute requiring a hospital to report acquire gainful employment so long as his name is on the subsection (c) thus sets out distinct ways in which a health a number of days" and it was important to "select dates well (j.a. 654-55, 699-700.) camc did the claims for which the district court determined the hcqia wahi, by counsel, timely requested a hearing as well as a wit- [a] remedy must be tailored to a violation [and] the manual for a hearing to challenge that action, and attached a ing camc summary judgment on wahi's breach of contract individuals, and were known to wahi. after all wahi had tal privileges, nor does it direct the hospital's actions thereaf- statute, it notified the national practitioner's data bank terly without merit" wahi's assertion that camc acted privileges and was not unaware of the consequences. the npdb is a national clearinghouse designed to prevent incompetent wahi's access to his medical affairs/quality assurance file, his board." (procedures manual 3.8; j.a. 489.) as to his claims for injunctive relief was not a state actor, as that term is contemplated under sity school of law, malibu, california, for appellant. 33wahi v. charleston area medical center [redacted]'s july 16 letter does not mention a possible affirmed order dated october 27, 2004, the district court dismissed the other procedures as are fair . . . under the circumstances." we at the time of the events in question, wahi was exercising hosp. ass'n, 37 f.3d 1026, 1030 (4th cir. 1994). anti-trust conspiracy, in violation of the sherman act, 15 rounding the allegations against him. the credentials the state court rejected wahi's arguments and dismissed "under color of state law" because it reported him to the committee scheduled a meeting with wahi for august 3, in writing as soon as possible and address his reappointment beach smith, united states district judge for the eastern 25.) he asserts he has satisfied the requirements for obtaining pend him and deny his application for reappointment were � failure to keep a current, complete, and timely � 11133(a)(1)(a) (west 2005). denial of reappointment is a npdb-reportable event. see 42 u.s.c. first time on appeal and therefore we will not consider them. see williams [redacted] informed wahi of the allegations from the (4) in the reasonable belief that the action was war- claim for the first time on appeal. see united states v. evans, 2 wahi v. charleston area medical center remove his name from the npdb list because he cannot npdb. (j.a. 61-62.) lastly, it dismissed wahi's state inva- wahi's last argument is that the district court erred in dis- camc met his pre-conditions. wahi asked the state court to with the parties never reaching contract under west virginia law, so any violation of the bylaws could procedures are afforded to the physician involved or after 28(a)(9)(a) requires that the argument section of an appel- argued: kenneth winston starr, pepperdine univer- complied with the usual requirements for claiming immunity. as to any material fact and that the moving party is entitled to a judgment the district court also provided an alternative basis for the granting of reported him to the npdb." (br. appellant 34.) this argu- � failure to obtain a proctor when missing his state law "breach of confidentiality" claim to which the latter is already entitled. . . . because dence and discussions with camc regarding preparation for camc and other defendants.10 10 wahi v. charleston area medical center and therefore was not amenable to suit under 42 u.s.c.a. the claims against camc and dr. crotty together. we will invoke a simi- a finding, and we therefore do not consider it. the next action credentials committee and board of trustees both recom- section 3.7 of the procedures manual states that camc should have the specific "notice and hearing" language. 45 c.f.r. � 60.13 states, in relevant part: conclusion that camc breached [its] contract" with wahi. dards. provided that a peer review action . . . com- having concluded that camc was not required to hold a 24 wahi v. charleston area medical center dentials committee letter set forth. since his reappointment in of" camc physicians who have "completed applications for appointment affirmed by published opinion. judge agee wrote the opin- clearly rejected the argument that the hospital's medical staff at issue on appeal. (j.a. 12; r. 61.) immunity does not apply to injunctive relief." (br. appellant tions of the sherman act, breach of contract,12 jane does i-x; jamal kahn; h. (j.a. 586.) however, the record does not support wahi's con- the complaint, stating wahi's arguments were speculative and ing subsection (a)(3), we now examine whether the district correspondence during the next several months indicates jurisdiction under 28 u.s.c.a. � 1291 (west 2006). cuits, that a plaintiff may not raise new claims after discovery carefully spelled out different requirements for cer- file, together with the affidavits, if any, show that there is no genuine issue 1999 letter. camc repeatedly requested that wahi provide "to reinstate dr. wahi's hospital privileges." (j.a. 92.) this total action against poverty, 145 f.3d 653, 658 (4th cir. his position that he had not violated the conditions of his clin- prevent a hearing that would create a record that could affect clinical privileges (� 3.7 of the bylaws), includ- reinstatement of wahi's hospital privileges, actual and puni- court awarded summary judgment to camc and dismissed court. use it solely with respect to the purpose for which it had wahi proceeded to a hearing, any complaint about the wahi then filed an amended complaint reiterating the rebut the presumption of immunity under the hcqia. wahi language of the statute. merits of the allegations. (j.a. 147-175, 701.) wahi made no to immunity under the hcqia. charged must either be a state actor or have a sufficiently fact that a report was made, is protected as confidential." (j.a. of the presiding officer of the hearing, provided that notice of the change rogatory reports concerning [wahi] from the npdb," the tion contained in a report to the [npdb], and not the mere regard. alters the conclusion that a health care entity can satisfy sub- isfies the safe harbor provisions of � 11112(b). wahi argues tion (a)(3) of this section � patients; compliance with hospital policies and the competition with the individual who requested the hearing," after consid- proves camc did not satisfy subsection (a)(3) under the that the evidence offered by dr. wahi is insufficient remained in effect until the camc board of trustees acted the hospital when a physician is accused of misconduct. cit- a copy of this letter or was made aware of the credentials committee's the credentials committee is composed of "one representative from 11 this case. that camc must meet the usual standard of qualifying for "is liable to [wahi] for defamation." (j.a. 88.) this is the from all of wahi's claims for damages. in so doing, it ana- 2002)] (quoting imperial v. suburban [hosp. ass'n], court properly determined camc provided wahi with "such under 42 u.s.c.a. � 1981 (west 2005).11 membership in a professional society, of the physician. such term