Wong, M.D. v. Sunrise Mountainview Hospital

Because the parties are familiar with the facts, this court will provide only those necessary for its disposition. Appellant doctor was subject to a peer review hearing regarding a recommendation to revoke his medical staff membership and privileges at respondent MountainView Hospital. Appellant received notice, attended the hearing without counsel, and lodged no objections before or during the hearing. The hearing committee decided to revoke appellant's privileges, and the decision was upheld on an internal appeal. Appellant brought a district court action against, among others, MountainView and its medical staff (respondents). 1 Appellant sought tort and contract damages. Respondents filed a motion to dismiss appellant's complaint for failure to state a claim and based on immunity under the Health Care Quality Improvement Act (HCQIA). In opposing respondents' motion to dismiss as to HCQIA immunity, appellant challenged only the requirement of adequate notice and hearing. The district court issued an order granting respondents'S motion to dismiss all of appellant's claims except for breach of contract, breach of the implied covenant of good faith and fair dealing, and negligence as to MountainView. The court stated that it was inclined to dismiss the remaining claims based on HCQIA immunity, but reserved its ruling on the issue to allow appellant to

lAppellant also sought declaratory relief against the Secretary of the Department of Health and Human Services. As a result, the case was removed from state court to federal district court to address appellant's ultimately unsuccessful claims against the Secretary. The case was then remanded to state court.

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conduct discovery regarding the adequate notice and hearing re quirement . 2 During discovery, appellant filed a motion to compel. The district court denied the motion, and, based on HCQIA immunity, granted respondents' motion to dismiss appellant's remaining claims against MountainView. Appellant challenges both district court orders granting respondents' motion to dismiss. HCCIL⁴ immunity This court reviews a district court order granting an NRCP 12(b)(5) motion to dismiss as a summary judgment when the district court considers evidence outside of the pleadings. See Meyer v. Sunrise Hosp., 117 Nev. 313, 320-21, 22 P.3d 1142, 1148 (2001). Summary judgment under HCQIA requires this court's de novo review to begin "with a presumption that the peer review action met the standards set forth in HCQIA." Id. at 322, 22 P.3d at 1149 (citing 42 U.S.C. § 11112(a)). "Mhis court will affirm the grant of summary judgment unless a reasonable jury, viewing the facts in a light most favorable to [the plaintiff], could conclude by a preponderance of the evidence that the hospital's actions fell outside the protection afforded by section 11112(a)." Id. For a peer review action to be immune, it must be made (1) in furtherance of quality health care; (2) after a reasonable effort to obtain the facts in the matter; (3) after adequate notice and hearing; and (4) in the reasonable belief that the action was warranted based on the facts known.

Id. (citing 42 U.S.C. § 11112). A health care entity that satisfies all of these conditions will "not be liable in damages under any law . . . with respect to the action." 3 42 U.S.C. § 11111(a)(1). Because appellant challenged only the adequate notice and hearing requirement in his opposition to respondents' motion to dismiss as to HCQIA, the other three requirements were waived. See Citizens for Responsibility & Ethics in Washington v. Cheney, 593 F. Supp. 2d 194, 229 (D.D.C. 2009) (stating that a "failure to respond to an argument in a [m]otion to [d]ismiss acts as a concession"). Moreover, by failing to object at the outset of or during his peer review hearing, appellant waived all adequate notice and hearing challenges. 4 See 42 U.S.C. § 11112(b); see, e.g., Moore v. Williamsburg Reg'l Hosp., 560 F.3d 166, 176 (4th Cir. 2009). Accordingly, the district court did not err by granting respondents' motion to dismiss because HCQIA immunity precluded all of appellant's claims. 5 Motion to compel This court will "not disturb a district court's ruling regarding discovery unless the court has clearly abused its discretion." Club Vista Servs. v. Din. Ct., 128 Nev. „ 276 P.3d 246, 249 (2012). The district court allowed appellant to engage in discovery only regarding the

requirement of adequate notice and hearing; however, nearly all of appellant's propounded discovery requests exceeded the scope of the permitted discovery by attempting to obtain information about 42 U.S.C. 11112(a)'s other requirements. Appellant's remaining contentions regarding his motion to compel fell within the district court's wide discretion. Thus, the district court did not abuse its discretion by denying appellant's motion to compe1. 6 Accordingly, we affirm the district court's decision. ORDER the judgment of the district court AFFIRMED.

Footnotes

[2] Appellant included information gained from this discovery in his supplemental opposition to respondents' motion to dismiss. SUPREME COURT OF NEVADA 3 (0) 1947A 0

[3] Thisimmunity does not apply to claims related to a person's civil rights. 42 U.S.C. § 11111(a)(1)(D). Appellant made no such claim.

[4] We note that the district court found that appellant received proper notice under HCQIA. °Although appellant's complaint contained requests for declaratory relief, this relief was sought only against the Secretary, who was not party to the action at the time of the district court's decisions. SUPREME COURT OF NEVADA 4 (0) 1947A e ‘AttA,“Ieesockl J. Hardesty AR J. Douglas Cherry cc: Hon. Douglas W. Herndon, District Judge Stephen E. Haberfeld, Settlement Judge Hafter Law Bailey Kennedy Eighth District Court Clerk

[6] We have considered all of appellant's remaining claims and conclude that they lack merit. SUPREME COURT OF NEVADA 5 ((lb 1947A e