Gabaldoni v. Washington Cnty Hosp

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LOUIS V. GABALDONI, M.D., 

Plaintiff-Appellant,

v.

WASHINGTON COUNTY HOSPITAL  No. 00-2203

ASSOCIATION; ANTIETAM HEALTH

SERVICES, INCORPORATED,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Benson E. Legg, District Judge.

(CA-98-1094-L)

Argued: April 5, 2001

Decided: May 17, 2001

Before WIDENER and LUTTIG, Circuit Judges, and

Rebecca Beach SMITH, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Luttig wrote the opinion, in

which Judge Widener and Judge Smith joined.

COUNSEL

ARGUED: Kevin Anthony Dunne, OBER, KALER, GRIMES &

SHRIVER, P.C., Baltimore, Maryland, for Appellant. Kathleen A.

Ellis, PIPER, MARBURY, RUDNICK & WOLFE, L.L.P., Baltimore,

2 GABALDONI v. WASHINGTON COUNTY HOSP.

Maryland, for Appellees. ON BRIEF: John W. Sippel, Jr., OBER,

KALER, GRIMES & SHRIVER, P.C., Baltimore, Maryland, for

Appellant. Natalie F. Zaidman, PIPER, MARBURY, RUDNICK &

WOLFE, L.L.P., Baltimore, Maryland, for Appellees.

OPINION

LUTTIG, Circuit Judge:

Washington County Hospital Association ("WCHA") terminated

Louis Gabaldoni’s clinical privileges and denied his application for

reappointment to the medical staff. Gabaldoni filed a lawsuit alleging

various contract and tort claims against WCHA and Antietam,

WCHA’s sister company. The district court granted summary judg-

ment to WCHA and Antietam on all of Gabaldoni’s claims. For the

reasons that follow, we affirm.

I.

Dr. Louis V. Gabaldoni is an obstetrician/gynecologist who first

became a member of the medical staff of WCHA — a private non-

profit hospital located in Hagerstown, Maryland — in 1984. J.A. 299.

Like any other member of the medical staff, Gabaldoni was required

to apply for reappointment to the medical staff every two years. J.A.

88, 300.

In July 1995, Gabaldoni submitted his biannual application for

reappointment to WCHA. J.A. 305-06. After various committees

reviewed Gabaldoni’s application, the WCHA Board of Trustees

("Board") elected both to terminate his clinical privileges and to deny

his application for reappointment to the medical staff. The Board noti-

fied Gabaldoni about its decision by letter, in which the Board

explained its reasoning as follows:

The findings and conclusions of the Grievance Committee

clearly indicate a serious transgression on your part with

respect to [a] patient’s medical chart. Furthermore, your

record indicates there have been two other grievances within

GABALDONI v. WASHINGTON COUNTY HOSP. 3

the last two years and a total of four grievances within the

last ten years, in addition to this most recent grievance. . . .

Some of the more significant aspects reviewed by the Board

and which influenced their decision are your record of mul-

tiple grievances, reviews of your clinical judgment and per-

formance in several cases, your behavior indicating a lack

of regard for rules and regulations, e.g., multiple suspen-

sions for failure to complete medical charts, and your record

of suits and complaints alleging professional negligence.

J.A. 212-13.1 In the same letter, the Board also notified Gabaldoni of

his right to a hearing regarding the Board’s decision to deny his reap-

pointment. J.A. 213.

Gabaldoni elected to request such a hearing, and a Hearing Com-

mittee comprising an ad hoc group of doctors was convened to hear

the evidence, render findings of fact, and recommend to the Board

whether Gabaldoni should be reappointed. J.A. 221, 353-57. Gabal-

doni’s attorney called witnesses and presented numerous supportive

affidavits from patients and physicians at the hearing. J.A. 356-57.

Thereafter, the Hearing Committee recommended to the Board that

Gabaldoni be conditionally reappointed and that a letter of censure be

placed in his file. J.A. 271.

After reviewing the record, the Board again elected to terminate

Gabaldoni’s clinical privileges and deny his reappointment, contrary

to the recommendation of the Hearing Committee. J.A. 295. In a letter

1

The "recent grievance" to which the Board referred in its letter arose

out of Gabaldoni’s care of Karen Moats, a patient who had died a few

days after giving birth. J.A. 379. WCHA’s Grievance Committee found

that Gabaldoni had improperly added entries to Moats’ medical records.

Thus, the Committee recommended that a letter of censure be placed in

Gabaldoni’s personnel file and that he be required to attend a course in

the proper maintenance of medical records. J.A. 170-70A. In addition,

the Board placed a letter of censure in Gabaldoni’s file arising out of his

failure to respond appropriately to repeated requests from nurses to eval-

uate Moats. J.A. 338-39. Indeed, an outside physician determined that

Gabaldoni had deviated from the applicable standard of care in treating

Moats. J.A. 154.

4 GABALDONI v. WASHINGTON COUNTY HOSP.

to Gabaldoni, the Board explained the basis for its decision as fol-

lows:

The Board’s decision was to terminate your medical staff

membership and clinical privileges on the basis of the most

recent grievance and your record of prior grievances. The

Hearing Committee found as a fact that you inappropriately

altered a patient’s original chart and failed to document an

important aspect pertinent to the patient’s care. The Board

was aware of an inordinate number of previous grievances

against you as well as their frequency and nature, especially

the fact that one of the previous grievances established that

you altered a medical record. The Board feels your record

indicates a pattern of failure to adhere to established and

basic tenets of ethical and professional behavior.

The Board also decided to deny your application for reap-

pointment and renewal of your clinical privileges. In reach-

ing the decision the Board considered not only the most

recent grievance but your entire record of performance and

behavior at the hospital e.g. five grievances, multiple sus-

pensions from the medical staff for failure to complete med-

ical charts in timely fashion, four malpractice suits of which

one is pending and three have been settled by substantial

payments by you or your insurance company (75,000,

150,000 and approximately 1,000,000), professional opin-

ions indicating multiple breaches in standards of care and

deficiencies in your clinical judgment.

J.A. 296.

Gabaldoni subsequently filed this lawsuit against WCHA and

Antietam, a for-profit medical service organization that is wholly

owned by Washington County Health Systems, WCHA’s parent com-

pany. He alleged that WCHA breached its bylaws by denying his

reappointment and terminating his clinical privileges and by dis-

seminating information to hospital personnel and third parties regard-

ing the same. He also alleged that WCHA and Antietam tortiously

interfered with his contractual and business relations. J.A. 18-25. The

GABALDONI v. WASHINGTON COUNTY HOSP. 5

district court granted summary judgment to WCHA and Antietam on

all counts of the complaint, J.A. 564, and this appeal followed.

II.

The district court granted summary judgment to WCHA on Gabal-

doni’s breach of contract claims (which were based upon WCHA’s

alleged breach of the bylaws) on the ground that WCHA was entitled

to immunity from damages under the Health Care Quality Improve-

ment Act ("HCQIA"). See 42 U.S.C. § 11111(a). The HCQIA pro-

vides a "professional review body"2 with immunity from damages

whenever a "professional review action"3 is taken:

(1) in the reasonable belief that the action was in the further-

ance of quality health care,

(2) after a reasonable effort to obtain the facts of the matter,

(3) after adequate notice and hearing procedures are

afforded to the physician involved or after such other proce-

2

"The term ‘professional review body’ means a health care entity and

the governing body or any committee of a health care entity which con-

ducts professional review activity, and includes any committee of the

medical staff of such an entity when assisting the governing body in a

professional review activity." 42 U.S.C. § 11151(11).

3

The HCQIA provides that:

The term "professional review action" means an action or recom-

mendation of a professional review body which is taken or made

in the conduct of professional review activity, which is based on

the competence or professional conduct of an individual physi-

cian (which conduct affects or could affect adversely the health

or welfare of a patient or patients), and which affects (or may

affect) adversely the clinical privileges, or membership in a pro-

fessional society, of the physician. Such term includes a formal

decision of a professional review body not to take an action or

make a recommendation described in the previous sentence and

also includes professional review activities relating to a profes-

sional review action.

42 U.S.C. § 11151(9).

6 GABALDONI v. WASHINGTON COUNTY HOSP.

dures as are fair to the physician under the circumstances,

and

(4) in the reasonable belief that the action was warranted by

the facts known after such reasonable effort to obtain facts

and after meeting the requirement of paragraph (3).

A professional review action shall be presumed to have met

the preceding standards necessary for the protection set out

in section 11111(a) of this title unless the presumption is

rebutted by a preponderance of the evidence.

42 U.S.C. § 11112(a). Due to the presumption of immunity contained

in section 11112(a), we must apply an unconventional standard in

determining whether WCHA was entitled to summary judgment —

whether a reasonable jury, viewing all facts in a light most favorable

to Gabaldoni, could conclude that he had shown, by a preponderance

of the evidence, that WCHA’s actions fell outside the scope of section

11112(a). See, e.g., Sugarbaker v. SSM Health Care, 190 F.3d 905,

912 (8th Cir. 1999); Brader v. Allegheny General Hospital, 167 F.3d

832, 839 (3d Cir. 1999).

On appeal, Gabaldoni challenges the district court’s grant of sum-

mary judgment on the ground that he presented sufficient evidence to

create a jury issue with regard to every element in section 11112(a).

Like the district court, we reject Gabaldoni’s arguments and hold that

there was insufficient evidence from which a jury could conclude that

the Board’s actions fell outside the scope of section 11112(a).4

4

Gabaldoni does not dispute that counts I and III of his complaint,

which relate to WCHA’s failure to evaluate him in accordance with

"standard medical criteria" and its failure to provide him with proper pro-

cess, fall under the umbrella of HCQIA immunity if the elements in sec-

tion 11112(a) are satisfied. See, e.g., Imperial v. Suburban Hosp. Assoc.,

37 F.3d 1026, 1027, 1030 (4th Cir. 1994) (holding that a hospital was

entitled to immunity under the HCQIA with regard to a claim that the

hospital failed to follow its own bylaws in denying reappointment). We

likewise hold that count II of Gabaldoni’s complaint, which alleges that

WCHA disseminated information about his termination in breach of its

bylaws, is also covered by the broad grant of immunity contained in sec-

GABALDONI v. WASHINGTON COUNTY HOSP. 7

A.

First, to receive HCQIA immunity, the "professional review

action" must be taken "in the reasonable belief that the action was in

furtherance of quality health care." Gabaldoni argues that because

several committees without final decisionmaking authority recom-

mended reappointment,5 there is a genuine issue of material fact about

whether the action taken by the Board in denying reappointment and

terminating Gabaldoni’s privileges was in furtherance of quality

health care. We disagree.

We apply an objective test "which looks to the totality of the cir-

cumstances" in determining whether a professional review action was

"undertaken in the reasonable belief that quality health care was

being furthered." Imperial, 37 F.3d at 1030 (emphasis in original). As

the Board explained in its letters to Gabaldoni, he had been the sub-

ject of multiple malpractice lawsuits, suspensions, and grievances.

Moreover, two of those grievances were related to the tragic death of

his patient. Thus, the record is replete with objective evidence of

Gabaldoni’s deviations from hospital policy and the applicable stan-

dard of care; the Board reasonably relied on, and even cited, such evi-

dence in support of its decision to deny reappointment and terminate

his privileges. Furthermore, even the committee reports relied upon

by Gabaldoni acknowledged that there were problems with his perfor-

mance and thus proposed that conditions be placed on his reappoint-

ment. J.A. 174-77, 267-271.

Accordingly, we agree with the district court that "[l]ooking objec-

tively at the totality of the circumstances . . . there was clearly enough

evidence against Dr. Gabaldoni for the Board to believe that it was

tion 11112(a) (assuming the four elements have been met) because

announcement of a change in a physician’s status is inherently part of the

"professional review action" protected by the HCQIA. J.A. 375 (Gabal-

doni testimony that it is important for hospital staff to be informed of any

status changes regarding a physician).

5

The Credentials Committee, the Medical Executive Committee, and

the Hearing Committee all recommended that Gabaldoni be reappointed.

J.A. 174, 271.

8 GABALDONI v. WASHINGTON COUNTY HOSP.

furthering the quality of health care in terminating his privileges."

J.A. 552-53; see also J.A. 294 (Board minutes from the discussion

about Gabaldoni’s reappointment application stating that "[m]embers

expressed their concern for providing the highest quality of patient

care possible for our community").

B.

Second, section 11112(a)(2) requires that the "professional review

action" be taken "after a reasonable effort to obtain the facts of the

matter." Gabaldoni essentially argues that because the Board did not

undertake an independent investigation of its own, its decision could

not have been based upon a reasonable effort to obtain the facts.

Gabaldoni’s argument is without merit.

The HCQIA does not require the ultimate decisionmaker to investi-

gate a matter independently, but requires only a "reasonable effort to

obtain" the facts. Thus, it was permissible for the Board to rely on the

reports and investigations of the various committees (including the

Hearing Committee which was expressly formed for this purpose) in

rendering its decision, so long as "the totality of the process leading

up to the Board’s ‘professional review action’ . . . evidenced a reason-

able effort to obtain the facts of the matter." Matthews v. Lancaster

General Hosp., 87 F.3d 624, 637 (3d Cir. 1996); see also Bryan v.

James E. Holmes Regional Med. Ctr., 33 F.3d 1318, 1335 (11th Cir.

1994) (holding that a board’s reliance on the reports of various com-

mittees was sufficient to satisfy section 11112(a)(2)).

In this case, the Board’s corporate counsel, Mr. Schaefer, provided

summaries of the evidence collected by the various committees to

each Board member. Although the summaries did not — and indeed

could not — include every single fact and finding from every com-

mittee report, there is no evidence to suggest that the summaries pro-

vided to the Board were materially insufficient or misleading.6 And,

6

Gabaldoni also challenges the district court’s discovery ruling that

WCHA was required to produce only redacted versions of the Board

minutes because they contained privileged attorney-client communica-

tions. However, the district court reviewed the minutes in camera and

GABALDONI v. WASHINGTON COUNTY HOSP. 9

as the district court noted in ruling on WCHA’s summary judgment

motion, the investigations by the various committees upon which the

Board relied "were, by all accounts, thorough." J.A. 554.

Indeed, as the minutes from the meeting disclose, the decision to

terminate Gabaldoni’s clinical privileges and deny his application for

reappointment was reached by the Board only "after complete review

of the record." J.A. 294. Accordingly, we hold that no reasonable jury

could find that the Board took action without a "reasonable effort to

obtain the facts of the matter."

C.

Third, the "professional review action" must be taken "after ade-

quate notice and hearing procedures are afforded to the physician or

after such other procedures as are fair to the physician under the cir-

cumstances." 42 U.S.C. § 11112(a)(3) (emphasis added). A "profes-

sional review action" does not occur under the HCQIA until "an

action or recommendation of a professional review body [ ] is taken

or made in the context of a professional review activity . . . which

affects (or may affect) adversely the clinical privileges, or member-

ship in a professional society, of the physician." 42 U.S.C.

§ 11151(9). Here, the "professional review action" occurred when the

Board took the action — that is, when the Board voted — to terminate

Gabaldoni’s clinical privileges and deny his application for reappoint-

ment, which indisputably occurred after the requisite notice and hear-

was "satisfied that the redacted sections of the minutes [we]re related to

Mr. Schaefer’s provision of legal assistance to the WCHA and [we]re

therefore protected by attorney-client privilege." A8-A9. Gabaldoni did

not attempt to have the unredacted versions of the minutes added to the

record on appeal nor did he request that they be placed in the district

court record under seal. Because we do not have any means to examine

the portions of the minutes deemed privileged by the district court, we

are unable to review its ruling. See Stearns v. Genrad, Inc., 752 F.2d

942, 945 (4th Cir. 1984). In addition, the district court did not abuse its

discretion in finding that Schaefer’s deposition following the close of dis-

covery was unnecessary. See, e.g., LeBlanc v. Cahill, 153 F.3d 134, 154

n.9 (4th Cir. 1998).

10 GABALDONI v. WASHINGTON COUNTY HOSP.

ing procedures were followed. Hence, since Gabaldoni has failed to

present any evidence that the Board took any "action" or made any

"recommendation" prior to the vote, Gabaldoni has failed to create a

jury issue with regard to section 11112(a)(3).

Nor does Gabaldoni’s reliance on Brooks’ testimony at the hearing

compel a contrary result. Brooks, a non-Board member, made the fol-

lowing statement before the Hearing Committee:

Most recently, the Board and Mr. Murphy tell me that

they will thoughtfully review the findings of this Commit-

tee. They — they have, in many verbal communications

since they announced their decision, indicated that their

mind and their resolve was firm to go ahead with his termi-

nation. I think that would be a fair thing to say.

J.A. 246-47. Brooks’ statement suggests, at most, that the Board had

a firm resolve to go ahead with the termination. It does not imply that

the Board took any "action" or made any "recommendation[s]" prior

to the actual vote. Indeed, Brooks’ statement that the Board intended

to "thoughtfully review the findings of the Hearing Committee"

strongly confirms that the "professional review action" did not occur

prior to the hearing since the Board planned to take additional steps

prior to making a decision.

In sum, therefore, we affirm the district court’s grant of summary

judgment to WCHA on Gabaldoni’s breach of contract claims

because no reasonable jury could have found that the Board’s actions

fell outside the scope of section 11112(a).7 See Bryan, 33 F.3d at 1332

(stating that HCQIA immunity is a question of law for the court to

decide when the record becomes sufficiently developed).

7

Gabaldoni does not raise any specific objections to the district court’s

conclusions regarding section 11112(a)(4). Accordingly, for the same

reasons set forth above, we agree with the district court that there is no

jury issue with regard to section 11112(a)(4). See Sugarbaker, 190 F.3d

at 916 ("Our analysis under § 11112(a)(4) closely tracks our analysis

under § 11112(a)(1).") (quoting Brader, 167 F.3d at 843); see also

Appellants Reply Br., at 5 n.5 ("Dr. Gabaldoni has not conceded [the

fourth prong of HCQIA immunity], as it simply encompasses the other

standards of the HCQIA.").

GABALDONI v. WASHINGTON COUNTY HOSP. 11

III.

In counts IV and V of the complaint, Gabaldoni alleges that

WCHA and Antietam tortiously interfered with his business relations

with his patients and that Antietam tortiously induced WCHA to

breach its contract with Gabaldoni so that Antietam could acquire his

patients. Under Maryland law, both of these torts require that a plain-

tiff prove wrongful or improper conduct by the tortfeasor. See Travel-

ers Indem. Co. v. Merling, 605 A.2d 83, 90 (Md. 1992). Such

wrongful conduct includes "violence or intimidation, defamation,

injurious falsehood or other fraud, violation of the criminal law, and

the institution or threat of groundless civil suits or criminal prosecu-

tions in bad faith[.]" K&K Mgmt., Inc. v. Lee, 557 A.2d 965, 979

(Md. 1989) (quoting W. Prosser, Handbook of the Law of Torts

§ 130, at 952-53 (4th ed. 1971)); Volcjak v. Washington County Hosp.

Assoc., 723 A.2d 463, 479 (Md. Ct. Spec. App. 1999).

Gabaldoni has failed to adduce any evidence of wrongful conduct

by Antietam. At most, Antietam pursued its own business interests in

negotiating for Gabaldoni’s practice and there is no evidence that

such negotiations were connected in any way to Gabaldoni’s termina-

tion. See, e.g., Alexander & Alexander Inc. v. B. Dixon Evander &

Assocs., Inc., 650 A.2d 260, 269 (Md. 1994) ("[W]e have made clear

in our cases that acting to pursue one’s own business interests at the

expense of others is not, in itself, tortious.").

With regard to WCHA, Gabaldoni has presented evidence only that

WCHA may have breached its contract with him. Breach of contract,

however, is insufficient to support a tortious interference claim unless

"the defendant committed such breach so that the defendant could

obtain the benefit of the relationship with the plaintiff’s customers."

Volcjak, 723 A.2d at 480 (emphasis added). Here, Gabaldoni has not

presented any evidence that WCHA breached a contract in order to

obtain the benefit of a relationship with his patients.

Accordingly, we affirm the district court’s grant of summary judg-

ment to WCHA and Antietam on Gabaldoni’s tortious interference

claims.

12 GABALDONI v. WASHINGTON COUNTY HOSP.

CONCLUSION

For the reasons stated herein, we affirm the judgment of the district

court.

AFFIRMED