Appendix — Wahi v. Charleston Area Area Medical Medical Medical Center Center (No. 09-430)

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APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Rakesh WAHI,

Plaintiff-Appellant,

we

CHARLESTON AREA

MEDICAL CENTER,

INCORPORATED, a West

Virginia Corporation; Glenn

Crotty; John Does I-X, No. 06-2162

Defendants-Appellees,

and

Jane Does I-X; Jamal Kahn; H.

Rashid; K.C. Lee; Andrew

Vaughn; John L. Chapman,

Defendants.

Association of American

Physicians and Surgeons,

Incorporated,

Amicus Supporting Appellant.

Appeal from the United States District Court for the

Southern District of West Virginia, at Charleston.

Joseph R. Goodwin, Chief District Judge.

(2:04-cv-00019)

Argued: December 2, 2008

Decided: April 10, 2009

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Before GREGORY and AGEE, Circuit Judges, and

Rebecca Beach SMITH, United States District Judge

for the Eastern District of Virginia, sitting by

designation.

Affirmed by published opinion. Judge AGEE wrote

the opinion, in which Judge GREGORY and Judge

SMITH joined.

COUNSEL

ARGUED: Kenneth Winston Starr, PEPPERDINE

UNIVERSITY SCHOOL OF LAW, Malibu,

California, for Appellant. Richard D. Jones,

FLAHERTY, SENSABAUGH & BONASSO, P.L.L.C.,

Charleston, West Virginia, for Appellees.

ON BRIEF: John C. Yoder, Harpers Ferry, West

Virginia, for Appellant. David S. Givens,

FLAHERTY, SENSABAUGH & BONASSO, P.L.L.C.,

Wheeling, West Virginia, for Appellees. Andrew L.

Schlafly, Far Hills, New Jersey, for Amicus

Supporting Appellant.

OPINION

AGEE, Circuit Judge:

Rakesh Wahi, M.D., appeals the district court's

judgment dismissing his numerous state and federal

claims brought against Charleston Area Medical

Center, Inc. (“CAMC”) regarding the suspension of

his medical privileges. The district court concluded

most of Wahi's clainis were barred because CAMC

qualified for immunity from suit under the Health

Care Quality Improvement Act (“HCQIA” or “the

Act”), 42 U.S.C.A. § 11101, et seq. (West 2005). For

this reason, and because the district court found

Wahi's other claims failed on the merits, the court

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awarded CAMC and Dr. Glenn Crotiy' summary

judgment. For the reasons set forth below, we affirm

the judgment of the district court.

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CAMC is a privately-run hospital operating in

Charleston, West Virginia. Wahi, who is licensed to

practice medicine in West Virginia, began working as

a cardio-thoracic surgeon at CAMC in January 1993.

(J.A. 98.) The following year, Wahi started his own

practice, but retained clinical privileges at CAMC.

Around the same time, he began discussions with a

Beckley, West Virginia medical group about the

possibility of associating with them. In November

1996, CAMC temporarily suspended Wahi's hospital

privileges and, as required by statute, it notified the

National Practitioner's Data Bank (“NPDB”),2 of

Wahi's suspension. CAMC later reinstated Wahi's

clinical privileges on a provisional basis.3 (J.A. 49;

! Dr. Crotty served as Executive Vice President and Chief

Medical Officer at CAM during the relevant period of Wahi's

employment; he is now the Chief Operating Officer at CAMC.

(J.A. 70, 117.)

2 The NPDB is a national clearinghouse designed to prevent

incompetent doctors from simply moving to anew state that

could not discover their prior poor performance. Under the

HCQIA, hospitals are generally required to report to the NPDB

adverse professional review action “affectling] the clinical

privileges of a physician.” See 42 U.S.C.A. § 11133(a)(1)(A)

(West 2005).

3 Wahi's status and privileges changed in subsequent periods,

but at all relevant times, he only possessed provisional

privileges at CAMC and he was subject to numerous

restrictions, such as being required to get another doctor's

approval before performing certain procedures and to have a

proctor present during other procedures. Wahi was also barred

from performing some procedures entirely. (J.A. 516-33, 655.)

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294; 511-16.) Following Wahi's reinstatement, CAMC

received reports of and _ investigated _ several

allegations that Wahi violated the terms of his

provisional clinical privileges, which again resulted in

temporary suspensions of Wahi's privileges in 1998

and 1999. From 1996 to 1999, CAMC, as required by

statute, reported Wahi to the NPDB a total of five

times, although the exact nature of each of the

reports before 1999 is not in the record. These prior

suspensions and investigations are not at issue in

this appeal.4 (J.A. 50, 517-71.)

At the time of the events in question, Wahi was

exercising provisional privileges at CAMC, and had

requested reappointment for “an additional year

ending February 26, 2000.”"5 (@J.A. 532-33, 572.) In

May 1999, the CAMC Credentials Committee®

(“Credentials Committee”) recommended that Wahi's

request be granted, but that his privileges remain

4 CAMC also filed several reports regarding Wahi's professional

conduct with the West Virginia Board of Medicine.

5 Under CAMC policy, an application for reappointment

automatically extends the current appointment period until the

request is acted on. (J.A. 477; Procedures Manual 2.1.1.1.)

Wahi's application thus extended his previous’ year's

appointment until final disposition of his application for

reappointment.

6 The Credentials Committee is camposed of “one representative

from each of [CAMC's] Medical Staff Departments” and two non-

physician non-voting members of the Board. It is charged with

investigating the “character, professional competence,

qualifications and ethical standing of’ CAMC physicians who

have “completed applications for appointment or reappointment

to the medical Staff,” as well as requests for changes in

privileges. The Credentials Committee then makes a

recommendation to the Board on all such matters. (Bylaws 8.3.1,

8.3.2.1.) WJ.A. 464.)

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restricted “as currently in place with intensified

review as outlined in the Medical Staff Procedures

Manual.”? (@J.A. 532.)

By letter dated July 8, 1999, the Credentials

Committee notified CAMC's Chief of Staff,

[REDACTED], that it was rescinding its earlier

recommendation to renew Wahi's provisional clinical

privileges. This decision was made after receiving

information that Wahi performed a [REDACTED],

which he was not permitted to do under the terms of

his provisional clinical privileges. The Credentials

Committee had also been apprised that Wahi failed to

notify CAMC, as required by the by-laws, that he had

voluntarily relinquished his clinical privileges at

another hospital. The Credentials Committee

requested “an investigation and _ appropriate

suspension of Dr. Wahi's clinical privileges” in light of

this new information of Wahi's continued failure to

comply with the terms of his provisional clinical

privileges. The Credentials Committee informed

[REDACTED] that its recommendation had not been

communicated to the CAMC Board of Trustees, and

that Wahi would be given the opportunity to meet

with them “prior to any final recommendation.”

(J.A. 572-73.)

7 Three documents set forth the rights and responsibilities

between CAMC and its medical staff: the Medical Staff

Procedures Manual (“Procedures Manual”), Medical Staff

Bylaws (“Bylaws”), and Medical Staff Rules & Regulations.

8 The district court incorrectly identified this letter as one

addressed directly to Wahi. There is no indication in the record

that Wahi received a copy of this letter or was made aware of

the Credentials Committee's recommendation at that time.

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By letter dated July 16, 1999, [REDACTED]

informed Wahi that he had been requested to

investigate the two claims raised in the Credentials

Committee's letter. [REDACTED] asked Wahi to

“respond to each of the [allegations] in writing as

soon as possible.” Attached to the letter were the

relevant portions of the Bylaws pertaining to the

alleged violations. WJ.A. 115, 575-76.)

Between July 16 and July 30, in addition to

meeting with [REDACTED] to discuss the July 16

letter requesting additional information from Wahi,

Wahi wrote to [REDACTED], [REDACTED], and the

Chairman of the Credentials Committee in order to

provide an explanation of the events surrounding the

allegations against him. The Credentials Committee

scheduled a meeting with Wahi for August 3, 1999 to

review his performance and consider his application,

which was later rescheduled for August 17, 1999, at

Wahi's request. (J.A. 742.)

On July 30, 1999, [REDACTED] summarily

suspended Wahi's hospital privileges at CAMC.

(J.A. 50.) By letter on the same date, CAMC formally

notified Wahi that his “clinical privileges [were]

hereby summarily suspended pursuant to Section

2.4.1, Grounds for Summary Suspension of the

Procedures Manual, ‘for the best nterest of patient

care.’” J.A. 117.) His suspension was to “continue

until resolution of [Wahi's] request for reappointment

and any appeal/hearing, if requested, has been

completed.” (J.A.117.) A copy of Article III of the

Procedures Manual was attached to the letter, and

Wahi was informed that he “may wish to avail

(himself] of any rights available to [him] under

Article III.” WJ.A. 117, 586.)

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From the time of his suspension through the

Credentials Committee meeting, Wahi engaged in

ongoing correspondence and discussions with CAMC

regarding preparation for that meeting and his

application to renew clinical privileges. (See, e.g.,

J.A. 118-30, 654.) On August 17, 1999, the

Credentials Committee met and Wahi testified,

providing his response to the allegations against him.

The Credentials Committee recommended denying

Wahi's application for reappointment in a detailed

August 26, 1999 letter. U.A. 644-46.) By a separate

letter, also dated August 26, 1999, CAMC mformed

Wahi of the denial of his request for reappointment of

his clinical privileges and of his right to a hearing

regarding this decision under Article III of the

Procedures Manual. W.A. 644-47.)

On September 8, 1999, Wahi, by counsel,

requested a hearing regarding both his suspension

and the decision not to renew his clinical privileges.

On September 13, 1999, CAMC reported Wahi's

summary suspension to the NPDB, W.A. 962.), and to

the West Virginia Board of Medicine. (J.A. 701.)

Correspondence during the next several months

indicates on-going discussions between Wahi and

CAMC regarding Wahi's access to his medical

affairs/quality assurance file, his dislike of the

composition of the hearing panel, and other aspects of

the conduct of a hearing. CAMC repeatedly asked

Wahi to provide “a series of convenient dates ... for

the scheduling of” the requested hearing. J.A. 762-

63, 776.) Wahi has never provided CAMC with any

dates on which he would be available for a hearing,

and a hearing date was never set. (J.A. 760.)

In November 2000, Wahi filed a complaint in

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West Virginia state court requesting that the court

intervene in the CAMC peer review process, declare

certain of CAMC's actions invalid, require CAMC to

withdraw its reports to the NPDB and state Board of

Medicine, and require a court-administered hearing

that satisfied Wahi's various demands. W.A. 99-114.)

The West Virginia court ultimately dismissed the

action on December 6, 2001, after concluding that

Wahi was not entitled to the relief he sought because

the peer review process was still ongoing. It declined

to “render advisory opinions” or accept Wahi's

“speculation” that he would receive an_ unfair

hearing. (J.A. 143, 131-46.)

For a while, discussions between Wahi and

CAMC continued after the state court case ended,

with both parties setting forth various parameters

and details of the conduct of a hearing. Then

discussions halted,? with the parties never reaching

an agreement or conducting or scheduling a hearing.

In January 2004, Wahi filed a complaint in the

United States District Court for the Southern District

of West Virginia.

The complaint alleged numerous state and

federal claims, including Anti-Trust violations of the

Sherman Act, against CAMC and other defendants.!°

9 As a result of CAMC's September 1999 report to the Board of

Medicine, the Board undertook an investigation into Wahi's

suspension and ultimately filed a complaint against him in

September 2001 to determine whether disciplinary action should

be taken regarding Wahi's license to practice medicine. After

protracted proceedings, the Board of Medicine ultimately

dismissed the charges in November 2003 without reaching a

decision on the merits of the allegations. (J.A. 147-180, 254-55,

701.)

10 The claims against all but one of the other defendants, Dr.

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(R. 3.) CAMC filed a motion for summary judgment,

which the district court construed as a motion to

dismiss pursuant to Rule 12(b)(6). U.A. 48.) By order

dated October 27, 2004, the district court dismissed

the Sherman Act claims for failure to allege an effect

on interstate commerce, but granted Wahi leave to

amend to remedy that omission. (J.A. 59-61.) The

district court also dismissed all but one of Wahi's

§ 1983 claims against CAMC, finding “utterly without

merit” Wahi's assertion that CAMC acted “under

color cf state law” because it reported him to the

NPDB. W.A. 61-62.) Lastly, it dismissed Wahi's state

invasion of privacy or wrongful disclosure claim,

concluding that “a plain reading of [the HCQIAI

means that only the information contained in a report

to the [NPDB], and not the mere fact that a report

was made, is protected as confidential.” (J.A. 63-64.)

Wahi then filed an amended _ complaint

reiterating the claims the district court had not

dismissed in its October 2004 order, and amending

the Sherman Act claims to include allegations of an

effect on interstate commerce. (J.A. 68-93.) Wahi's

amended complaint alleged the following claims: (1)

Anti-Trust Conspiracy, in violation of the Sherman

Act, 15 U.S.C. §1 (2000); (2) Anti-Trust

Monopolization, in violation of the Sherman Act, 15

U.S.C.A. § 2 (West 1997 & Supp.2008); (3) breach of

contract and implied covenant of good faith and fair

dealing; (4) conspiracy to deny his constitutional right

to due process, in violation of 42 US.C.A. § 1983

(West 2005); (5) defamation; and (6) violation of his

Crotty, were subsequently dismissed from the suit, see R. 12

and 88, and are not before us in this appeal.

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civil rights under 42 U.S.C.A. § 1981 (West 2005).1!

Wahi also sought a declaration “that the reports

made by [CAMC] to the NPDB are invalid and

contrary to law,” the removal of CAMC's “derogatory

reports concerning [Wahil from the NPDB,” the

reinstatement of Wahi's hospital privileges, actual

and punitive damages, attorneys fees, and. costs.

(J.A.92.) Wahi's overarching contention was that

CAMC's decisions to suspend him and deny his

application for reappointment were taken in bad faith

to prevent competition by monopolizing the field of

cardiac surgery in the region and to prevent him from

practicing medicine. (J.A. 68-92.)

By order dated September 29, 2006, the district

court granted motions by CAMC and Dr. Crotty for

summary judgment on all counts. Wahi v. Charleston

Area Med. Ctr., 453 F.Supp.2d 942 (S.D.W.Va.2006).

(J.A. 262-91.) The court held that CAMC qualified for

immunity under the HCQIA from all of Wahi's claims

for damages. In so doing, it analyzed each of the four

components that a professional review action must

possess in order to qualify for immunity, as set forth

in 42 U.S.C. § 11112(a), and concluded that CAMC

fulfilled each requirement. Id. at 948-55. (J.A. 266-

79.) Regarding the fact that CAMC never held a

hearing regarding Wahi's suspension, the district

court found

that the evidence offered by Dr. Wahi is

insufficient for a reasonable jury to find that

CAMC failed to fulfill its obligations under

§ 11112(a)(3) by a preponderance of the evidence.

The overwhelming evidence is that CAMC acted

11 Additional claims were subsequently voluntarily dismissed

and are not at issue on appeal. (J.A. 12; R. 61.)

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_ in an objectively reasonable manner in light of

the totality of the circumstances in this case and

took sufficient measures to ensure Dr. Wahi

received adequate notice of any hearing or

meeting that was to occur in the proposed

actions against him. The many letters between

the parties illustrate the hospital's attempts to

set a hearing at Dr. Wahi's request and give him

notice of the hearing. Dr. Wahi was represented

by counsel throughout the process and in the

end, he was informed and fully aware of his

rights, the hospital's policies, and the charges

and evidence the hospital had against him. The

hospital responded promptly when Dr. Wahi

requested a hearing be scheduled.

Id. at 954. (J.A. 278.) The district court concluded the

HCQIA immunity protected CAMC against Wahi's

claims for violations of the Sherman Act, breach of

contract,!2 and defamation. Id. at 955. (WJ.A. 279.)

Recognizing that the HCQIA does not afford

immunity from claims for injunctive relief, the

district court dismissed those claims based on its

conclusion that “Wahi fail[ed] to make any argument

or allege any facts that would entitle him to

injunctive relief.”!3 Jd. at 960. (J.A. 289-90). The

12 The district court also provided an alternative basis for the

granting of summary judgment as to Wahi's breach of contract

claim: CAMC complied with the procedures outlined in its

Procedures Manual and those required by federal law, and that

CAMC's Bylaws did not constitute a contract under West

Virginia law, so any violation of the Bylaws could not constitute

a breach of contract. Jd. at 955-56. (J.A. 280-82.)

13 It also held that Wahi's § 1981 claim was barred by the

applicable statute of limitations and also failed on the merits

because Wahi had not proven CAMC's race-neutral reason for

its actions were pretextual. Id. at 957-60. (J.A. 282-88.) Because

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district court recognized that the HCQIA does not

provide immunity from claims alleging civil rights

violations, but granted CAMC summary judgment on

Wahi's § 1983 conspiracy to deny due process claim

because “Wahi [did] not offer even a scintilla of

evidence that there was communication between

CAMC and the Board of Medicine beyond that

required by law.” Id. (J.A. 288-89.) Accordingly, the

district court awarded summary judgment to CAMC

and dismissed Wahi's case with prejudice. Id.

(J.A. 291.)

Wahi noted a timely appeal, UJ.A. 292-93), and we

have jurisdiction under 28 U.S.C.A. § 1291 (West

2006).

II.

On appeal, Wahi's primary argument is that the

district court erred in holding that CAMC!4 was

entitled to immunity under the HCQIA even though

CAMC summarily suspended Wahi “without notice or

a hearing.” Wahi also contends that the district court

erred in dismissing his claims seeking injunctive

relief because the HCQIA only provides immunity

Wahi does not challenge the district court's disposition of this

claim, it is not before us on appeal. See Fed. R.App. P.

28(a)(9)(A); see also 11126 Baltimore Boulevard, Inc. v. Prince

George's County, 58 F.3d 988, 993 n. 7 (4th Cir. 1995) (en banc)

(involving predecessor to Federal Rule of Appellate Procedure

28(a)(9)(A)).

14 In his opening brief, Wahi states that he “is also appealing the

dismissal of Dr. Crotty as a codefendant,” even though he refers

to CAMC as the “Appellant.” (Br. Appellant 3.) The district court

similarly analyzed the claims against CAMC and Dr. Crotty

together. We will invoke a similar convention, referring only to

CAMC, but including Dr. Crotty in the analysis for the claims

Wahi brought against him.

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from suits for damages. In addition, Wahi challenges

the district court's determination that CAMC was not

a state actor and therefore was not amenable to suit

under 42 U.S.C.A. § 1983 (2005). Lastly, Wahi asserts

the district court erred in dismissing his state law

defamation, breach of confidentiality, and breach of

contract claims. We address each argument below.

A. HCQIA Immunity

Wahi asserts the district court erred in

determining CAMC was entitled to mmunity under

the HCQIA because CAMC never held a hearing

regarding Wahi's suspension, and therefore did not

satisfy the requirements for claiming immunity

under the Act. (Br. Appellant 18-30; Reply Br. 2-15.)

However, we conclude the district court did not err in

determining CAMC was entitled to immunity under

the particular facts of this case.

The HCQIA provides a “professional review

body”! with immunity from damages whenever a

“professional review action”!® is taken:

15 “The term ‘professional review body’ means a health care

entity and the governing body or any committee of a health care

entity which conducts 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.A. § 11151(11) (West 2005).

16 A “professional review action” is:

an action or recommen dation 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 physician (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

professional society, of the physician. Such term includes a

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

the furtherance 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 procedures 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).

42 U.S.C.A. § 11112(a) (West 2005). “A professional

review action shall be presumed to have met the

preceding standards necessary for [immunity] unless

the presumption is rebutted by a preponderance of

the evidence.” Id.

Due to the presumption of immunity under the

HCQIA, a court applies an “unconventional standard

in determining” whether summary judgment is

appropriate-“whether a reasonable jury, viewing all

facts in a light most favorable to [Wahil, could

conclude that he had shown, by a preponderance of

the evidence, that [CAMC's] actions fell outside the

scope of section 11112(a).” Gabaldoni v. Washington

County Hosp. Ass'n, 250 F.3d 255, 260 (4th Cir.

2001). In determining whether a health care entity

has met these four requirements, the Court applies

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 professional review action.

42 U.S.C.A. § 11151(9) (West 2005).

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an objective test that “looks to the totality of the

circumstances” to determine whether the action

satisfies the §11112(a) provisions. Imperial v.

Suburban Hosp. Ass'n, 37 F.3d 1026, 1030 (4th Cir.

1994).

In a footnote in his opening brief, Wahi contends

that even though the “primary focus of this appeal is

the failure of CAMC to schedule a hearing,” as

required under subsection 3 of § 11112(a), the “first,

second and fourth prongs of the test [for mmunity

under the HCQIA] were also not met.” (Br. Appellant

29 n. 11.) Other than this declarative sentence, Wahi

fails to raise any argument to support his claim that

the first, second, and fourth prongs of the subsection

(a) immunity criteria were not met.!7 Federal Rule of

Appellate Procedure 28(a)(9)(A) requires that the

argument section of an appellant's opening brief must

contain the “appellant's contentions and the reasons

for them, with citations to the authorities and parts

of the record on which the appellant relies.” Because

Wahi has failed to comply with the specific dictates of

Rule 28(a)(9)(A), we conclude that he has waived his

claims as to the first, second, and _ fourth

requirements of the subsection (a) HCQIA immunity

test on appeal. See 11126 Baltimore Boulevard, Inc.,

58 F.3d at 993 n. 7 (involving predecessor to Federal

Rule of Appellate Procedure 28(a)(9)(A)). Accordingly,

our review regarding the immunity issue is limited to

whether the district court erred in determining that

Wahi did not overcome the presumption that CAMC

satisfied the requirements of subsection (a)(3).

A health care entity is “deemed to have met the

17 Unless otherwise indicated, references to “subsection ---” will

refer to subsections of 42 U.S.C. § 11112.

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adequate notice and hearing requirement of”

§ 11112(a)(3) when it satisfies the safe harbor

provisions of § 11112(b). Wahi argues that because

CAMC failed to follow the provisions of subsection

(b), it does not qualify for immunity under the

HCQIA. However, as the district court properly

recognized, (J.A.275), following the provisions of

subsection (b) is but one way a health care entity can

comply with the requirements of subsection (a)(3).

While a health care entity is “deemed to have met”

the subsection (a)(3) immunity requirements by

following the safe harbor provisions of subsection (b),

those provisions are not exclusive. “({Flailure to meet

the conditions described [in subsection (b) ] shall not,

in itself, constitute failure to meet the standards of

subsection (a)(3).” §11112(b)(3). Therefore, Wahi's

argument that CAMC is not entitled to immunity, as

a matter of law, because it did not comply with all of

the provisions in subsection (b), fails under the plain

language of the statute.

Wahi next asserts that CAMC is not entitled to

immunity because it failed to satisfy the exceptions

from immunity carved out in §11112(c). Wahi

contends that since CAMC summarily suspended him

for more than 14 days without first finding that he

posed an imminent danger to his patients and

without conducting a post-suspension investigation,

CAMC cannot claim immunity under the HCQIA.

Wahi misreads the statute. Subsection (c) sets forth

limited arcumstances in which a health care entity

can act with immunity without satisfying all of the

conditions in subsection (a). Subsection (c) provides in

pertinent part:

For purposes of section 11111(a) of this title,

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nothing in this section shall be construed as-

(1) requiring the procedures referred to in

subsection (a)(3) of this section-

(A) where there is no adverse professional review

action taken, or

(B) in the case of a suspension or restriction of

clinical privileges, for a period of not longer than

14 days, during which an investigation is being

conducted to determine the need for a

professional review action; or

(2) precluding an immediate suspension or

restriction of clinical privileges, subject to

subsequent notice and hearing or other adequate

procedures, where the failure to take such an

action may result in an imminent danger to the

health of any individual.

§ 11112(c).

Subsection (c) thus sets out distinct ways in

which a health care entity can be immune under the

HCQIA without having complied with the usual

requirements for claiming immunity. Wahi would

have us read the statute by ignoring this clear

purpose and instead find that the HCQIA immunity

is barred by failing to meet one of the subsection (c)

prongs. To the contrary, subsection (c) presents

additional routes to HCQIA immunity beyond that

set forth in subsection (a)(3). Although Wahi may be

correct that the facts show CAMC cannot assert

immunity based on (c)(1) or (c)(2), the only

significance is that CAMC must meet the usual

standard of qualifying for immunity set forth in

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subsection (a)(3).18

Under subsection (a)(3), a health care entity

seeking HCQIA immunity must act “after adequate

notice and hearing procedures are afforded to the

physician involved or after such other procedures as

are fair to the physician under the circumstances.”

§ 11112(a)(3) (emphasis added). Stated in the

disjunctive, the statute contemplates two

independent avenues by which the subsection (a)

immunity prong may be obtained. The first avenue,

“adequate notice and hearing procedures,” is not at

issue in the case at bar. CAMC makes no claim under

that prong and the district court did not consider it.

is [REDACTED]

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What CAMC argues, and the district court held, is

that the unique circumstances in this case show that

Wahi received “other procedures as are fair to the

physician under the circumstances,” and entitle

CAMC to the HCQIA immunity.

Wahi cites the legislative history of subsection

(a)(3) to assert that the “other procedures”

undertaken by a health care entity must nonetheless

include a hearing. In particular, Wahi relies on this

language from the 1986 House Report recommending

the adoption of the HCQIA:

The due process requirement [i.e., subsection

(a)(3),] can always be met by the procedures

specified in subsection (b).... If other procedures

are followed, but are not precisely of the

character spelled out in [subsection (b) ], the test

of “adequacy” may still be met under other

prevailing law. The Committee is aware, for

example, that some courts have already carefully

spelled out different requirements for certain

professional review activities or actions, such as

procedures for decisions regarding applicants for

clinical privileges at a hospital. In those

situations, compliance with applicable law

should satisfy the “adequacy” requirement even

where such activities or actions require different

or fewer due process rights than the ones

specified under [subsection (b) ]. In any case, it is

the Committee's intent that physicians receive

fair and unbiased review to protect their

reputations and medical practices.

H.R.Rep. No. 99-903, at 10-11 (1986), as reprinted in

1986 U.S.C.C.A.N. 6384, 6393. Nothing in this

legislative history alters the conclusion that a health

20a

care entity can satisfy subsection (a)(3) without

providing a formal hearing, as contemplated in the

safe harbor’ provisions, depending on _ the

circumstances of a particular case. Rather, Congress'

intent-and that expressed by the plain language of

the statute-is that a physician be afforded adequate

and fair “procedures” with regard to professional

review actions, which could be something other than

a formal hearing in some circumstances. If this were

not so, Congress would have no reason to have

included the “other procedures appropriate ... under

the circumstances” language contained in the statute

in contrast to the specific “notice and hearing”

language.

Wahi also contends that CAMC's failure to follow

some of the procedures outlined in its Bylaws and

Procedures Manual proves CAMC did not satisfy

subsection (a)(3) under the alternative prong.

However, as the Court of Appeals for the Fifth Circuit

recently observed,

HCQIA immunity is not coextensive with

compliance with an individual hospital's bylaws.

Rather, the statute imposes a uniform set of

national standards. Provided that a peer review

action ... complies with those standards, a failure

to comply with hospital bylaws does not defeat a

peer reviewer's right to HCQIA immunity from

damages.

Poliner v. Tex. Health Sys., 537 F.3d 368, 380-81 (5th

Cir. 2008); see also Meyers v. Columbia/HCA

Healthcare Corp., 341 F.3d 461, 469-71 (6th Cir.

2003). Nothing in the subsection (a)(3) phrase “such

other procedures as are fair... under the

circumstances” mandates by-law compliance as the

21a

sine qua non for immunity, although from a practical

standpoint, by-law compliance may often be proof of

such procedures in many cases.

Having concluded that CAMC was not required to

hold a formal hearing as a mandatory condition

precedent to satisfying subsection (a)(3), we now

examine whether the _ district court properly

determined CAMC provided Wahi with “such other

procedures as are fair ... under the circumstances.”

We begin that review by underscoring the unique

procedural posture upon which summary judgment

for a health care entity is measured under the

HCQIA, as the district court properly summarized:

In applying the test outlined in § 11112(a), we

begin with the presumption that the hospital has

met the necessary standards for immunity

unless this presumption is rebutted by a

preponderance of the evidence. § 11112(a). The

applicable standard is one _ of objective

reasonableness, viewed in light of the totality of

the circumstances. Freilich{ v. Upper

Chesapeake Health, Inc., 313 F.3d 205,] 212 [

(4th Cir. 2002) |] (quoting Imperial v. Suburban

[Hosp. Ass'n], 37 F.3d 1026, 1030 (4th Cir.

1994)). Reasonableness standards have been

consistently upheld in the context of qualified

immunity. Freilich, 313 F.3d at 213.

Wahi, 453 F.Supp.2d at 950. UJ.A. 270.) We find no

error in the district court's determination that Wahi

failed to rebut the presumption that CAMC's actions

satisfied the statutory requirement when the totality

of the circumstances are viewed in an objectively

reasonable manner.

22a

[REDACTED] informed Wahi of the allegations

from the Credentials Committee by letter dated July

16 and further discussed them in a meeting with him

on July 17. U.A. 575-77.) Moreover, Wahi apparently

learned of the unauthorized surgery allegation

against him even prior to [REDACTED]'s letter

because on July 15, he wrote to [REDACTED] stating

he understood questions had arisen regarding his

decision to perform the procedure, explaining his

decision to perform the contested procedure, and

setting forth why he believed it fell within his clinical

privileges. (J.A. 721-28.) Although [REDACTED]'s

July 16 letter does not mention a possible suspension,

it does state that CAMC would be investigating the

claims that Wahi had again exceeded his authority

under his provisional privileges and not complied

with the CAMC Bylaws when he failed to notify

CAMC that he had relinquished his privileges at

another hospital. Wahi had previously been

suspended at least three times for violation of his

privileges and was not unaware of the consequences.

[REDACTED] also informed Wahi that he should

respond in writing as soon as possible and address

his reappointment before the Credentials Committee

at the August 3, 1999 hearing, J.A. 576), which was

rescheduled for August 17 at Wahi's request. Over

the next two weeks, Wahi wrote to [REDACTED] and

[REDACTED] several times, addressing the charges

in writing, and providing documents supporting his

position that he had not violated the conditions of his

clinical privileges. He also requested access to certain

records prior to or during the Credentials Committee

meeting. UJ.A. 730, 731, 732-41, and 742.) The record

shows that CAMC provided Wahi with

notice of the

23a

most recent allegations against him, and an

opportunity to respond to those allegations. CAMC

complied with its Procedures Manual in this regard.

CAMC suspended Wahi's medical privileges by a

letter dated July 30, 1999 from [REDACTED], which

recited the “best interests of patient care” as the

reason for the action. J.A. 586.) However, the record

does not support Wahi's contention that CAMC did

not inform him more specifically of the reasons for his

suspension. On July 30, [REDACTED] and

[REDACTED] met with Wahi to inform him of the

suspension pending the Credentials Committee's

review of his application for reappointment.

[REDACTED]'s memorandum of that meeting recites

that they informed Wahi that the Credentials

Committee and Board of Trustees both recommended

he be suspended. [REDACTED] cited Wahi's

“inability to follow procedural guidelines outlined by

the Committee and the Board of Trustees which

ensures adequate care and safety of patients,” and

also told Wahi that when he met with the Credentials

Committee, he should “be prepared to defend his lack

of adherence to the limitations on his privileges as

well as his absence of notification of suspension from

St. Francis [Hospital].”!9 (J.A. 965.) The suspension

letter reiterated the rights due Wahi under Article III

of the Procedures Manual for a hearing to challenge

that action, and attached a copy for his use.

The Credentials Committee then afforded Wahi,

by letter of August 13, 1999, the opportunity to

19 [REDACTED] and [REDACTED] also agreed that Wahi could

continue treating two patients “currently in house” and that

care of all of Wahi's patients would be transferred to another

physician or discharged by August 1, 1999. (J.A. 965.)

24a

review the file for the August 17 meeting for the

“timeline of events surrounding [his] privileges” at

CAMC. The letter also emphasized to Wahi that

This meeting is your opportunity to present the

Committee with additional information that is

pertinent to its evaluation of your ethical

behavior, clinical competence and_ clinical

judgment in the treatment of patients;

compliance with Hospital policies and the

Medical Staff Bylaws and Rules and Regulations;

behavior in the hospital, your cooperation with

medical and Hospital personnel as it relates to

patient care or the orderly operation of hospital,

and your general attitude toward patients, the

Hospital and its personnel; use of the Hospital

facilities for your patients; your physical and

mental health; your capacity to satisfactorily

treat patients as indicated by the results of the

Hospital's quality assessment activities or other

reasonable indicators of continuing

qualifications; your satisfactory completion of

such continuing education requirements as may

be imposed by law, the Hospital or applicable

accreditation agencies; and other relevant

findings from CAMC's and the Medical Staff's

quality assurance activities.

(J.A. 752.) Copies of relevant portions of CAMC's

Procedures Manual were attached to the letter.

(J.A. 752-57.) A separate letter informed Wahi how

the meeting would be conducted, and set out Wahi's

rights regarding the meeting. (J.A. 719-20.)

The Credentials Committee met on August 17,

1999. Wahi appeared before it and presented his case.

The Committee concluded it “was unable to identify

25a

evidence that Dr. Wahi's clinical competence [and] -

professional judgment ... are sufficient to recommend

. that he be reappointed to the Medical Staff.”20

(J.A. 645-46.) In particular, the Committee cited the

following

- Failure to comply with and repeated violation

of clinical privileges (§ 3.7 of the Bylaws),

including:

- Failure to obtain a proctor when required to do

SO;

- Failure to obtain a second opinion when

required to do so;

- Performance of an operative procedure for

which he did not have privileges.

- Marginal indications for operative procedures;

- Poor decision-making in the care of some

patients;

* Multiple incident reports surrounding bizarre

professional behavior and _ inappropriate

personal behavior among nursing staff,

- Failure to comply with responsibilities set

forth in the CAMC Bylaws, including providing

proper quality of care (§ 3.2), maintaining

proper medical records (§ 3.3), and notifying

CAMC of the loss of clinical privileges at any

other hospital (§ 3.6); and

- Failure to keep a current, complete, and timely

record of patient care (§§ 2.1 and 2.7 of the

20 Denial of reappointment is a NPDB-reportable event. See 42

U.S.C. § 11133(a) (requiring health care entities to report

“professional review action(s] that adversely affect[ ] the clinical

privileges of a physician for a period longer than 30 days”).

26a

Medical Staff Rules and Regulations) (J.A. 550,

552-53).

(J.A. 645.)

On August 26, 1999, Wahi received the

Credentials Committee report and was once again

notified of the rights provided in Article [II and that

he had 30 days to request a hearing.”! (J.A. 647.) The

letter also informed Wahi his suspension remained in

effect until the CAMC Board of Trustees acted on his

reappointment. (J.A.647.) On September 8, 1999,

Wahi, by counsel, timely requested a hearing as well

as a witness list and a number of specified

documents. (J.A. 648-53.)

On October 18, 1999, CAMC notified Wahi of the

members of the hearing panel and asked Wahi to

“work with the presiding officer to schedule and

conduct the hearing in accordance with ... Article ITI,”

and again forwarded Wahi the Procedures Manual.22

(J.A. 654-55, 699-700.) CAMC did not give Wahia

specific witness list,2° but afforded his counsel access

21 Article III of the Procedures Manual set forth Wahi's right to

a hearing based on both the summary suspension and the

Credentials Committee's recommendation to deny Wahi's

application for reappointment. (See Procedures Manual 2.3.4.2,

2.4.3, 3.1; J.A. 484-87.)

22 The Procedures Manual stated that once a hearing is

requested, the President of CAMC “shall schedule the hearing

and shall give notice of its time, place and date ... to the person

who requested the hearing. The hearing shall begin as soon as

practicable, considering the schedules and availability of all

concerned, provided that [it] shall not begin without at least

thirty days notice.” (Procedures Manual 3.6; J.A. 489.)

23 Section 3.7 of the Procedures Manual states that CAMC

should have provided a list of witnesses to Wahi “within ten

27a

to some of the files requested in the September 8,

1999 letter. CAMC repeatedly requested that Wahi

provide available dates for his hearing because “the

hearing will take a number of days” and it was

important to “select dates well enough in advance

that all involved parties can clear their schedules.”

(J.A. 776.) In over 8 years since his request for a

hearing, Wahi has yet to provide CAMC with any

dates when he would be available for a hearing.

During the following year, the parties negotiated

over how the hearing would be conducted. Wahi

objected to the composition of the panel, its presiding

officer,24 and the use of any incident or discipline

during his medical practice at CAMC that he did not

address at the August 17, 1999 Credentials

Committee meeting. And while CAMC had opened

many of its files to Wahi and his counsel, some items

Wahi had requested had not been disclosed due to

privacy disagreements, which had not been resolved.

The parties also attempted to negotiate a resolution

of the matter, including withdrawing Wahi's

suspension based on a written statement of the basis

for CAMC's actions. However, the parties were

unable to reach an agreement. (J.A. 760-83, 118-30.)

days” of his request, and that the witness list could be

supplemented or amended in the discretion of the presiding

officer of the hearing, provided that notice of the change has

been given. (J.A. 489.)

24 The Procedures Manual provides that the President of CAMC

“shall appoint a panel of not less than three members, none of

whom are in direct competition with the individual who

requested the hearing,” after considering the recommendations

of the Chief of Staff and the Chairman of the Board. (Procedures

Manual 3.8; J.A. 489.)

28a

On November 30, 2000, Wahi filed an action in

the West Virginia state court to enjoin his requested

hearing unless CAMC met his pre-conditions. Wahi

asked the state court to order, inter alia, that his

method of selection for the hearing panel be used,

that no matters of Wahi's medical practice at CAMC

be considered at the hearing except those mentioned

in [REDACTED]'s July 30, 1999 letter, and that the

court maintain “jurisdiction over the administrative

hearing.” (J.A. 99, 112, 99-114.)

The state court rejected Wahi's arguments and

dismissed the complaint, stating Wahi's arguments

were speculative and “[ilt would be premature for the

Court to make any determination as to whether or

not the notice given to Dr. Wahi satisfies the ‘fair

procedures' requirement.” (J.A.141.) Furthermore,

the court noted that the omposition of the hearing

panel was in conformity with CAMC's Procedures

Manual, and that any objections about the hearing

panel or the evidence to be considered should be

raised before the hearing panel. The court entered its

final order of dismissal on December 6, 2001.

In the meantime, the West Virginia Board of

Medicine filed a complaint against Wahi on

September 10, 2001, and set a hearing “to determine

whether disciplinary action should be taken

against Dr. Wahi's license to practice medicine.”

(J.A. 149.) Wahi and the Board of Medicine engaged

in protracted litigation, which included Wahi's

unsuccessful attempt to halt the proceedings by

seeking a writ of prohibition against the Board of

Medicine from the Supreme Court of Appeals of West

Virginia. On November 10, 2003, the proceedings

were dismissed, without a final disposition on the

29a

merits of the allegations. @J.A. 147-175, 701.) Wahi

made no effort during this time period to pursue a

hearing at CAMC. While CAMC argues this was a

deliberate choice by Wahi to prevent a hearing that

would create a record that could affect the Board of

Medicine proceedings, the district court made no

finding in that regard, CAMC assigns no error to the

lack of a finding, and we therefore do not consider it.

The next action in time was the filing of Wahi's

complaint in the district court.

Lastly, in considering whether the procedures

provided by the health care entity are fair “under the

circumstances,” the July 1999 allegations against

Wahi cannot be considered in a vacuum. These

allegations were simply the latest in Wahi's

tumultuous history with CAMC, as the August 26,

1999 Credentials Committee letter set forth. Since

his reappointment in 1995, Wahi had been the

subject of numerous reports and complaints calling

his professional competence and conduct into

question. The record shows that these complaints

arose from a multitude of discrete incidents, were

made by different individuals, and were known to

Wahi. After all Wahi had been through the

suspension process previously at CAMC, including

the prior reports to the NPDB. CAMC investigated

and imposed restrictions, including temporary

suspensions, as a result of those investigations. Wahi

was aware of the consequences for failing to abide by

the Bylaws and Procedures Manual. He was not a

first-time offender who was unfamiliar with the

responsibilities of his position at CAMC or the

consequences for his failures in July 1999. U.A. 130-

31, 248-53, 339-97, 496-571.)

30a

While CAMC's path to immunity in this case is

not a recommended model, it must be evaluated

considering all the events which transpired, not just

those Wahi views as favorable to him. Had CAMC

simply set a prompt hearing, whatever Wahi's

objections and efforts to stop it, CAMC may have

been within its rights to do so and may have met the

first prong of subsection (a)(3). Similarly, CAMC

should have followed its Bylaws and the Procedures

Manual, and provided Wahi a witness list, even if it

had to be later supplemented. However, these

failures by CAMC, when viewed in the totality of the

circumstances against a measuring stick of objective

reasonableness, do not show Wahi met his burden of

proof to rebut the presumption of immunity under

the HCQIA. Wahi was on notice of the many charges

against him, including the detailed Credentials

Committee report of August 26, 1999. He was

repeatedly notified of his rights and given multiple

copies of documents explaining these rights. He was

repeatedly asked for dates for.a hearing. While

CAMC attempted to accord Wahi a hearing in

conformity with the Procedures Manual, Wahi

seemed more intent on forestalling a hearing than

having one.

Had Wahi proceeded to a hearing, any complaint

about the inadequacy of notice, defective witness list

or discovery, the composition of the hearing panel,

the conduct of the hearing, or other relevant issues

could have been addressed and subjected to judicial

review. In the face of Wahi's recalcitrance, it is at the

least disingenuous to now claim his right to a hearing

was infringed when he has done all he could do not to

have a hearing. Viewing the totality of these

circumstances in an objectively reasonable manner,

3la

we cannot conclude that the district court erred in

determining Wahi failed to rebut the presumption

that CAMC afforded him “other procedures as are

fair to the physician under the circumstances.” We

therefore affirm the district court's holding that

CAMC is entitled to immunity under the HCQIA.

B. Injunctive Relief

Wahi also contends the district court erred in

awarding summary judgment * as to his claims for

injunctive relief because “[a]lthough the HCQIA

immunizeld] [CAMC and Dr. Crotty] from claims for

monetary damages, that statutory immunity does not

apply to injunctive relief.” (Br. Appellant 25.) He

asserts he has satisfied the requirements for

obtaining an injunction requiring CAMC to provide

him a hearing and remove his name from the NPDB

list because he cannot acquire gainful employment so

long as his name is on the NPDB lst, monetary

damages will not restore his ability to practice, and

the public possesses a strong interest in ensuring

hospitals abide by the law. (Br. Appellant 25-26;

Reply Br. 17-20.)

The HCQIA only provides immunity from suits

25 We review the district court's grant of summary judgment on

this issue de novo. Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, B3 (4th Cir. 2004) (en banc). “Summary

judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a

judgment as a matter of law.” Id. (internal quotation marks

omitted). We construe the evidence in the light most favorable to

Wahi, the party opposing the Appellees’ motion, and draw all

reasonable inferences in his favor. See id.

32a

for damages. 42 U.S.C. § 11111(a)(1); see Imperial, 37

F.3d at 1030-31. The district court expressly

recognized this limitation, and it did not base its

decision that Wahi was not entitled to injunctive

relief on CAMC's immunity under the HCQIA.

(J.A. 289-90.) Instead, it concluded Wahi “failled] to

make any argument or allege any facts that would

entitle him to injunctive relief.” Wahi, 453 F.Supp.2d

at 960. (J.A. 289-90.)

The district court did not err in _ this

determination. In order to pursue injunctive relief to

redress his Anti-Trust, breach of contract, and

defamation claims, Wahi must have a viable claim

that CAMC committed a wrong.

[A] remedy must be tailored to a violation [and]

the nature of the violation determines the scope

of the remedy. Remedies, in other words, do not

exist in the abstract; rather, they flow from and

are the consequence of some wrong. At its most

basic, this principle limits the reach of judicial

decrees to parties found liable for a _ legal

violation.

See Bacon v. City of Richmond, 475 F.3d 633, 638

(4th Cir. 2007) (quoting Swann v. Charlotte-

Mecklenburg Bd. of Educ., 402 U.S. 1, 16, 91 S.Ct.

1267, 28 L.Ed.2d 554 (1971)) (internal quotation

marks and citations omitted). Wahi has not made the

requisite showing for any of the claims for which the

district court determined the HCQIA immunity

applied. The district court provided non-HCQIA-

based reasons for awarding CAMC summary

judgment on Wahi's breach of contract and

defamation claims, which Wahi has also appealed,

and which we discuss below.

33a

Lastly, even if Wahi succeeded on the merits of

his Anti-Trust claims, he would not be entitled to the

injunctive relief he sought in his amended complaint.

Wahi's amended complaint asked for an injunction

directing CAMC “to remove its derogatory reports

concerning Dr. Wahi from the NPDB” and “to

reinstate Dr. Wahi's hospital privileges.” (J.A. 92.)

This relief is not connected to any alleged acts of anti-

competitive behavior by CAMC.

C. State Actor

Wahi asserts the district court erred in

determining CAMC was not a state actor, as that

term is contemplated under § 1983, and therefore not

amenable to suit under that statute.26 (Br. Appellant

26 As noted, the district court dismissed all but one of Wahi's

§ 1983 claims in its October 27, 2004 order granting CAMC's

motions under Rule 12(b)(6). Therefore, we conduct a de novo

review of the district court's decision, Mylan Labs., Inc. v.

Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993), accepting all

allegations in Wahi's complaint as truc. Republican Party v.

Martin, 980 F.2d 943, 952 (4th Cir. 1992). To survive a Rule

12(b)(6) motion, “[flactual allegations must be enough to raise a

right to relief above the speculative level” and have “enough

facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 1974,

167 L..Ed.2d 929 (2007). Moreover, the court “need not accept the

(plaintiff's) legal conclusions drawn from the facts,” nor need it

“accept as true unwarranted’ inferences, unreasonable

conclusions, or arguments.” Kloth v. Microsoft Corp., 444 F.3d

312, 319 (4th Cir. 2006) (internal quotation marks omitted).

Wahi challenges the district court's determination that CAMC

was not itself a state actor, but he makes no argument related to

the September 29, 2006 order dismissing his conspiracy:based

§ 1983 claim based on a failure to show any evidence that CAMC

conspired with the state Board of Medicine. Accordingly, our

review is limited to the § 1983 claims dismissed in the district

court's October 2004 order.

34a

12-15; Reply Br. 21-22.) To state a claim under

§ 1983, a plaintiff must aver that a person acting

under color of state law deprived him of a

constitutional right or a right conferred by a law of

the United States. See Dowe v. Total Action Against

Poverty, 145 F.3d 653, 658 (4th Cir. 1998). “Like the

state-action requirement of the Fourteenth

Amendment, the under-color-of-state-law element of

§ 1983 excludes from its reach ‘merely private

conduct, no matter how discriminatory or wrongful.’ ”

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50,

119 S.Ct. 977, 143 L.Ed.2d 130 (1999). Consequently,

“Itlhe person charged must either be a state actor or

have a sufficiently close relationship with state actors

such that a court would conclude that the non-state

actor is engaged in the state's actions.” DeBauche v.

Trani, 191 F.3d 499, 506 (4th Cir. 1999). “[Plrivate

activity will generally not be deemed ‘state action’

unless the state has so dominated such activity as to

convert it to state action: ‘Mere approval of or

acquiescence in the initiatives of a private party’ is

insufficient.” Id. at 507; see also Dowe, 145 F.3d at

659.

To support his argument, Wahi contends that by

reporting him to the NPDB, CAMC “essentially

decredentialed” him, a power that is “reserved

exclusively to state government” and turns CAMC's

conduct into state action. (Br. Appellant 14, 12-15;

Reply Br. 21-22.) We previously examined, and

rejected, a similar argument in Modaber v. Culpeper

Memorial Hospital, Inc., 674 F.2d 1023 (4th Cir.

1982). In that case, we held that a_ hospital's

compliance with a Virginia statute requiring the

hospital to report the revocation of privileges did not

“authorize state officials to make privileges decisions,

35a

or to set forth directions governing the outcome of

such decisions, or attach consequences to their

results.” Id. at 1027 (footnotes omitted). For these

reasons, we held the Virginia statute did not “involve

the ‘exercise by a private entity of powers

traditionally exclusively reserved to the State.’” Id.

at 1027 (quoting Jackson v. Metropolitan Edison Co.,

419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477

(1974)); see also Freilich, 313 F.3d at 214 n. 3

(holding private hospital was not a state actor

because the state played no role in the “actual

decision as to whether or not to terminate or

reappoint any particular physician”).

Similarly, the federal statute requiring a hospital

to report credentialing decisions to the NPDB does

not authorize state officials to make any decisions

regarding a physician's hospital privileges, nor does it

direct the hospital's actions thereafter. Instead, it

simply requires hospitals to report to the NPDB

adverse professional review action “affectling] the

clinical privileges of a physician.” See 42 U.S.C.A.

§ 11133. Accordingly, we find that the statute does

not confer to CAMC powers traditionally reserved to

the state, and it does not turn CAMC's actions into

state action for a § 1983 claim.?7

27 In addition, Wahi also cites CAMC's “extensive programs and

merger with” West Virginia University (a public institution),

CAMC's status as the “largest hospital,” in the state, and a

comment made in a CAMC Foundation book characterizing

CAMC as an “entirely public institution.” (Br. Appellant 12°15;

Reply Br. 21-22.) These arguments were raised for the first time

on appeal and therefore we will not consider them. See Williams

v. Prof. Transp. Inc., 294 F.3d 607, 614 (4th Cir. 2002) (stating

that issues raised for the first time on appeal “are generally not

considered absent exceptional circumstances”). (Compare

J.A. 28°30, with R. 24 pp. 13-14.)

36a

D. Defamation Claim

Wahi contends that the district court erred in

awarding summary judgment on his defamation

claim.28 He specifically argues on appeal that “Wahi

was defamed when Dr. Crotty intentionally disclosed

to the local media that CAMC had reported him to

the NPDB.” (Br. Appellant 34.) This argument,

however, was not presented to the district court and

appears for the first time on appeal. Wahi's amended

complaint states as the sole basis for his defamation

claim that CAMC's “amended reports published by

[CAMC] to the NPDB on June 10, 2003, were false

and defamatory, per se.” Wahi contends CAMC

published the “defamatory reports to the NPDB with

reckless disregard for the truth” and therefore “is

liable to [Wahi] for defamation.” WJ.A. 88.) This is the

argument presented and ruled upon by the district

court when determining whether HCQIA immunity

barred Wahi from pursuing the claim. (See R. 98, p.

75.)

Wahi's defamation claim on appeal is therefore

not the one presented in his amended complaint. We

‘have previously held, along with the Fifth, Sixth,

Seventh, and Eleventh Circuits, that a plaintiff may

not raise new claims after discovery has begun

without amending his complaint. Barclay White

Skanska, Inc. v. Battelle Mem'l Inst., 262 Fed.Appx.

556, 563 (4th Cir. 2008) (unpublished) (citing Tucker

v. Union of Needletrades, Indus., & Textile

Employees, 407 F.3d 784, 788 (6th Cir. 2005);

Gilmour v. Gates, McDonald & Co., 382 F.3d 1312,

28 We review this claim de novo, under the traditional principles

set forth supra, note 25.

37a

1315 (11th Cir. 2004); Shanahan v. City of Chicago,

82 F.3d 776, 781 (7th Cir. 1996); and Fisher v. Metro.

Life Ins. Co., 895 F.2d 1073, 1078 (5th Vir. 1990)).

Wahi never amended his complaint to change his

existing defamation claim or add a new defamation

claim based on Dr. Crotty's statement to the media.

Therefore, we will not consider the claim for the first

time on appeal. See United States v. Evans, 404 F.3d

227, 236 n. 5 (4th Cir. 2005) (stating that a party who

“failed to raise [an] argument before the district court

... has ... waived it on appeal”). Furthermore, because

Wahi did not argue his claim of defamation based on

the filing of the NPDB report on appeal, that claim is

abandoned. See 11126 Baltimore Boulevard, Inc., 58

F.3d at 993 n. 7 (issue waived when not argued on

appeal).

E. Breach of Contract Claim

As an alternative basis for awarding summary

judgment on Wahi's state law breach of contract

claim, the district court concluded CAMC's Bylaws

did not constitute a contract between CAMC and

Wahi. Y.A. 280-82.) Wahi asserts the district court

erred because, under West Virginia law, a hospital's

bylaws constitute a contract between the physician

and the hospital when a physician is accused of

misconduct. Citing Kessel v. Monongalia County Gen.

Hosp. Co., 215 W.Va. 609, 600 S.E.2d 321

(W.Va.2004), Wahi contends that because a hospital

is ‘bound” to afford a physician the procedures set

forth in its bylaws, “noncompliance with those

provisions compels the conclusion that CAMC

breached [its] contract” with Wahi. (Br. Appellant 37-

39.) We disagree.

Wahi's argument does not properly follow the

38a

West Virginia Supreme Court of Appeals' analysis in

Kessel. The court clearly rejected the argument that

the hospital's medical staff bylaws constituted a

contract between the plaintiffs and the hospital,

which the hospital allegedly breached. Id. at 326.

[T]he essential element of valuable consideration

is absent. This Court has held that the doing by

one of that which he is already legally bound to

do is not a valuable consideration for a promise

made to him, since it gives to the promisor

nothing more than that to which the latter is

already entitled.... Because the hospital was

already bound by [state] law to approve the

bylaws of the medical staff, and the medical staff

was bound to initiate and adopt bylaws, neither

party conferred on the other any more than what

the law already required. Thus, we conclude that

the medical staff bylaws do not constitute a

contract [absent express language to the

contrary].

Id. (internal quotation marks and_6 alterations

omitted). While a hospital may be required to follow

its by-laws as a due process component, there is no

contractual’ relationship unless’ the by-laws

specifically so provide. Id. at 327. There was no such

provision in Kessel, and there is none in the case at

bar. Whatever due process entitlement Wahi may

claim by virtue of the CAMC by-laws, his arguments

are subsumed by the foregoing analysis of his civil

rights claims, which failed.

Accordingly, we hold the district court did not err

in awarding CAMC summary judgment on Wahi's

breach of contract claim.

39a

F. Breach of Confidentiality

Wahi's last argument is that the district court

erred in dismissing his state law “breach of

confidentiality” claim because 45 C.F.R. § 60.13

prohibited CAMC from disclosing to the local news

media the fact that it had reported Wahi to the

NPDB.?9, 3° Br. Appellant 35-37.)

45 C.F.R. § 60.13 states, in relevant part: |

Information reported to the [NPDB] is

considered confidential and shall not be disclosed

outside the Department of Health and Human

Services.... Persons and entities which receive

information from the [NPDB] either directly or

from another party must use it solely with

respect to the purpose for which it was

provided....

29 As noted, the district court disposed of Wahi's claim in its

October 2004 order granting CAMC's Rule 12(b)(6) motion.

Accordingly, we review the district court's decision de novo. See

supra note 26.

30 CAMC responds that we should not consider Wahi's argument

because Wahi's complaint asserted “invasion of privacy,” and not

“breach of confidentiality,” which are two separate torts under

West Virginia law. (Br. Appellee 39-40.)

Wahi's complaint appears to merge an allegation of “invasion

of privacy, ... or in the alternative, a wrongful disclosure of

private facts.” Wahispecifically alleges CAMC “violated the

confidentiality of reports to the NPDB” by disclosing to the local

media the fact that it had reported Wahi to the NPDB. (J.A. 38-

39.) The district court identified the claim as one for Wahi's

“invalsion of] privacy, or in the alternative, wrongfull |]

disclos{ure of] private facts.” (J.A. 63.) Although Wahi's

complaint could have been much clearer in setting out a cause of

action, we find that it was at least sufficient for him to have

preserved the issue raised on appeal.

40a

Any person who violates [the above provision]

shall be subject to a civil money penalty of up to

$10,000 for each violation.

We find no error in the district court's conclusion

that Wahi failed to allege that CAMC's conduct

constituted a breach of confidentiality. Section 60.13

guarantees the confidentiality of “{ilnformation

reported to” the NPDB and specifically limits the

actions of individuals who “receive information from”

an NPDB report. Id. (emphasis added). It therefore

does not prevent the entity who reported NPDB from

disclosing the mere fact that a report was filed.

Accordingly, the district court did not err in granting

CAMC's Rule 12(b)(6) motion as to this claim.

Til.

For the foregoing reasons, we affirm the

judgment of the district court.

AFFIRMED

4la

APPENDIX B

FILED: May 8, 2009

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-2162

(2:04-cv-00019)

RAKESH WAHI,

Plaintiff - Appellant

V.

CHARLESTON AREA MEDICAL CENTER,

INCORPORATED, A West Virginia Corporation;

GLENN CROTTY; JOHN DOES I-X,

Defendants - Appellees

and

JANE DOE NUMBERS 1 THROUGH 10;

JAMAL KAHN; H. RASHID; K. C. LEE; ANDREW

VAUGHN; JOHN L. CHAPMAN,

Defendants

ASSOCIATION OF AMERICAN PHYSICIANS

AND SURGEONS, INCORPORATED,

Amicus Supporting Appellant

ORDER

42a

The Court denies the petition for rehearing and

rehearing en banc. No judge requested a poll under

Fed. R. App. P. 35 on the petition for rehearing en

banc.

Entered at the direction of the panel: Judge

Gregory, Judge Agee and Judge Smith.

For the Court

/s/ Patricia S. Connor, Clerk

43a

APPENDIX C

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

Civil Action No. 2:04-cv-00019

Rakesh WAHI, M.D..,

Plaintiff,

Vv.

CHARLESTON AREA MEDICAL CENTER, et al.,

Defendants.

ORDER

Pending before the court are the defendants'

Motions for Summary Judgment [Docket 75, Docket

79, and Docket 81]. After a thorough review of the

pending motions and responses, the court FINDS for

the defendants and GRANTS their summary

judgment motions on all counts.

I. BACKGROUND

A. Factual Summary

The plaintiff, Rakesh Wahi, M.D. (Dr. Wahi), has

been licensed to practice medicine in West Virginia

since 1993. He specializes in cardiovascular, thoracic

and general surgical procedures. In January of 1993,

Dr. Wahi joined the staff of the defendant Charleston

Area Medical Center (CAMC), and in July of 1993 he

was promoted from the defendant's probationary staff

to provisional staff. CAMC is a private entity

incorporated in West Virginia.

In June of 1994, Dr. Wahi started his own

practice at CAMC, and also began exploring the

44a

possibility of associating himself with a separate

medical group in Beckley, WV, called the “Medsurg

Group.” According to Dr. Wahi, CAMC then began

taking various steps to restrict the plaintiff's ability

to practice medicine and to prevent the plaintiff from

competing with CAMC. Between 1995 and 1999 Dr.

Wahi was the subject of several peer review

investigations concerning his performance as a

physician. The investigations were mainly conducted

internally, but at least one review was conducted by

an external committee. Although the reasoning

behind and validity of the investigations, as well as,

the outcomes remain a point of contention and

disagreement between the parties, the reviews did

result in various restrictions and suspensions being

placed on Dr. Wahi's privileges prior to 1999. As a

result of these investigations, negative reports were

sent to the National Practitioner's Data Bank (Data

Bank).

The Data Bank is a national clearinghouse

established pursuant to the Health Care Quality

Improvement Act of 1986 (HCQIA). See 42 U.S.C.

§§ 11133-11134 (2004). Under the HCQIA, health

care entities may qualify for immunity from civil

liability for certain actions if they report information

to the Data Bank following “a professional review

action that adversely affects the clinical privileges of

a physician for a period longer than 30 days.” Id.

§ 11133(1)(A). According to Congress, the purpose of

the Data Bank and reporting incentives is “to restrict

the ability of incompetent physicians to move from

State to State without disclosure or discovery of the

physician's previous damaging or _ incompetent

performance.” Id. § 11101(2). Reported information

must include the physician's name and a description

45a

of the reasons for the adverse action. Id.

§ 11133(3)(A) and (B).

According to Dr. Wahi, negative reports were

made about him to the Data Bank by CAMC on

November 25, 1996; December 6, 1996; December 24,

1997; March 22, 1999; and September 13, 1999.

Based on CAMC's reports to the Data Bank, the West

Virginia Board of Medicine (Board of Medicine)

investigated Dr. Wahi and brought charges against

him on three separate occasions. The plaintiff alleges

that the defendant CAMC worked closely with the

Board of Medicine to bring these charges and

attempted to deprive him of his license to practice

medicine in West Virginia. The Board of Medicine

dismissed the last charges against Dr. Wahi on

November 10, 2003.

The situation between CAMC and Dr. Wahi

culminated in July 1999, when the credentials

committee withdrew its recommendation that Dr.

Wahi's medical staff privileges at CAMC be renewed.

The committee's decision was followed by an

investigation which resulted in the summary

suspension of Dr. Wahi's medical staff privileges at

CAMC. However, during the month of July 1999,

there were numerous communications between

CAMC and Dr. Wahi, in which CAMC notified Dr.

Wahi of the allegations, the general nature of

evidence, the possible adverse recommendations that

the committee was considering, in addition to Dr.

Wahi's rights under CAMC medical staff bylaws. In

fact, the letters sent from CAMC to Dr. Wahi often

included attachments of the relevant portions of the

bylaws.

At some point during the process, either before or

46a

after the suspension of his medical privileges at

CAMC Dr. Wahi obtained counsel. Following his

suspension, Dr. Wahi, via counsel, requested a

hearing pursuant to the hospital's bylaws. However,

a hearing has never been held. Dr. Wahi alleges that

a hearing was never set because CAMC failed to meet

its burden of setting a hearing date. CAMC,0n the

other hand, alleges that a hearing was never

scheduled because Dr. Wahi refused to agree to the

parameters of any proposed hearing. Ultimately, Dr.

Wahi alleges that he has been denied a fair hearing

and that the adverse professional review actions were

taken pursuant to a conspiracy by the defendants to

monopolize thoracic and cardiovascular medicine and

surgery in the Charleston, Beckley, Bluefield, and

Parkersburg area of West Virginia.

B. Procedural History

Dr. Wahi filed an_ eleven-count Amended

Complaint against CAMC and_= several other

defendants, both named and unnamed. Dr. Wahi

claimed that the defendants: 1) engaged in an

antitrust conspiracy under the Sherman Act (15

U.S.C. § 1); 2) engaged in antitrust monopolization

under the Sherman Act (15 U.S.C. § 2); 3) violated his

Fifth and Fourteenth Amendment Due Process

rights; 4) retaliated against him in violation of his

First Amendment rights; 5) breached the contract

between CAMC and Dr. Wahi; 6) conspired to deny

him Due Process in violation of his rights under the

Fifth and Fourteenth Amendments; 7) defamed him

by reporting him to the Data Bank; 8) invaded his

privacy and disclosed confidential information; 9)

violated his civil rights under 42 U.S.C. § 1981; 10)

conspired to obstruct justice and deny equal

protection in violation of 42 U.S.C. § 1985; and 11)

Alva

neglected to prevent the conspiracy alleged in Count

10 in violation of 42 U.S.C. § 1986. Based on these

claims, Dr. Wahi requests injunctive relief, actual

damages, and punitive damages.

In response to Dr. Wahi's claims, the defendants

moved to dismiss the Complaint for failure to state a

claim upon which relief can be granted. In an opinion

issued October 27, 2004, this court dismissed counts

one and two without prejudice and granted plaintiff

leave to amend the complaint to allege an impact on

interstate commerce; and this court also dismissed

counts three, four, and eight for failure to state a

claim upon which relief can be granted. The court

then ordered the parties to engage in limited

discovery and brief the court on whether defendants

are entitled to immunity from civil liability under the

HCQIA for all claims except civil rights claims; and

whether any issues of material fact exists regarding

claims alleged in Counts Five, Six, Nine, Ten and

Eleven.

An amended complaint was filed and the counts

were renumbered as follows: 1) antitrust conspiracy

under the Sherman Act (15 U.S.C. § 1); 2) antitrust

monopolization under the Sherman Act (15 U.S.C.

§ 2); 3) breach of contract between CAMC and Dr.

Wahi; 4) conspiracy to deny Due Process in violation

of the Fifth and Fourteenth Amendments (42 U.S.C.

§ 1983); 5) defamation; 6) violation of civil rights

under 42 U.S.C. $1981; 7) conspiracy to obstruct

justice and deny equal protection in violation of 42

U.S.C. § 1985; and 8) neglect to prevent the

conspiracy alleged in Count 7 in violation of 42 U.S.C.

§ 1986.

Thereafter, Dr. Wahi voluntarily dismissed all

48a

defendants except CAMC, Dr. Crotty, and Dr.

Chapman. Finally, Dr. Wahi also. voluntarily

dismissed Counts Seven and Eight. This now leaves

the Court to address the following issues: a) whether

CAMC is entitled to immunity under HCQIA from

civil liability for all counts except the civil rights

claims; and b) whether any genuine issue of material

fact remains for Counts Three, Four, and Six.

Il. THE HEALTH CARE QUALITY

IMPROVEMENT ACT (HCQIA)

The HCQIA was enacted in 1986 to improve the

quality of medical care by restricting the ability of

physicians who have been found to be incompetent

from repeating this malpractice by moving from state

to state without discovery of such finding. Imperial v.

Suburban Hospital Ass'n, Inc., 37 F.3d 1026, 1028

(4th Cir.1994) (citing 42 U.S.C. § 11101). The HCQIA

establishes a national reporting system to follow bad

doctors from place to place, and provides immunity

from damages for persons. participating’ in

professional review activities. Imperial, 37 F.3d at

1028.

To assure that hospitals and doctors cooperate

with the system and engage in_ meaningful

professional review, Congress found it necessary to

provide qualified immunity from damages actions for

hospitals, doctors, and others who participate in the

professional review process. Id. (citing 42 U-S.C.

§ 11101). “Thus, 42 U.S.C. § 11101 provides that

persons participating in professional review activities

that meet the standards outlined in 42 U.S.C.

§ 11112, ‘shall not be liable in damages under any

law of the United States or any State’ with respect to

the person's participation in such activities.”

49a

Imperial, 37 F.3d at 1028. The conditions set forth

granting such immunity are set forth in § 11112(a)

and are discussed below.

A. Qualifications for HCQIA Immunity

The HCQIA provides immunity from damages for

those who participate in professional peer review. For

HCQIA immunity to attach, however, the peer review

action must comport with due process. Freilich v.

Upper Chesapeake Health, Inc., 313 F.3d 205, 211

(4th Cir.2002). To determine whether an action

comports with due process, the HCQIA adopts a four

pronged test. Specifically, the peer review action

must be taken (1) in the reasonable belief that the

action was in furtherance 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 procedures 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. 42 U.S.C. § 11112(a)(1)-(4). The standard laid

out by the test is one of objective reasonableness,

looking at the totality of the circumstances. Freilich,

313 F.3d at 212 (quoting Imperial v. Suburban

Hospital Assoc., 37 F.3d 1026, 1030 (4th Cir.1994)).

In meeting this test, §11112(a) of the HCQIA

provides a presumption in favor of the health care

entity. It is presumed that a health care entity has

met the necessary standards and is entitled to

immunity unless the presumption is rebutted by a

preponderance of the evidence. § 11112(a). In order

for an entity to continue to qualify for immunity,

§ 11133 requires that the outcomes of professional

50a

review actions be reported to state boards of medical

examiners. There is no immunity from claims

alleging a civil rights violation or claims for

declaratory or injunctive relief. Imperial, 37 F.3d at

1030 (citing 42 U.S.C. § 11112).

B. Determination of Whether This is a Peer

Review Action

Dr. Wahi argues that the underlying suit does not

arise as the result of a professional peer review

action. Under the HCQIA only actions that meet the

definition of professional review are eligible for

immunity. Gordon v. Lewistown Hospital, 423 F.3d

184, 201 (3d Cir.2005). Therefore, this court will first

address whether the action qualifies as a peer review

action before applying the four § 11112(a) factors to

determine immunity.

The HCQIA defines professional review action as:

[A]n action or recommendation 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 physician (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 professional society, of the

physician.

§ 11151(9). Professional review activity “means an

activity of a health care entity with respect to an

individual physician-(A) to determine whether the

physician may have clinical privileges with respect to,

or membership in, the entity, (B) to determine the

scope or conditions of such privileges or membership,

or (C) to change or modify such privileges or

Dla

membhership.” § 11151(10).

In the present action, itis clear that the suit

arises as a result of the recommendations and

activities of a health care entity in regard to the

competence and professional conduct of Dr. Wahi,

and whether he will continue to have privileges at

CAMC. The decisions of CAMC have, in fact,

adversely affected Dr. Wahi's privileges.

Furthermore, the statute does not require that the

activities or actions be properly conducted or

conducted in a specific manner in order to be deemed

a professional review action. Thus, regardless of

whether this court determines CAMC's activities to

be proper, the underlying action is subject to the

requirements of the HCQIA. Having determined that

the current action is a suit arising as the result of a

peer review activity, the court will now determine

whether the actions of CAMC are entitled to

immunity under the HCQIA.

C. Summary Judgment and the HCQIA

As stated above, §11112(a) provides a

presumption that a health care entity has met the

necessary standards laid out by the statute, and thus

is entitled to immunity unless this presumption is

rebutted by a preponderance of the evidence. This

presumption of immunity established by the HCQIA

creates a unique summary judgment standard. See

Gabaldoni v. Washington County Hospital, 250 F.3d

255, 260 (4th Cir.2001) (finding that due to the

presumption of immunity contained in § 1 1112(a), an

unconventional standard must be applied in

determining whether the hospital was entitled to

summary judgment). When reviewing a motion for

summary judgment under the HCQIA, the plaintiff

o2a

bears the burden of proving that a reasonable jury,

examining all! the facts in the light most favorable to

the plaintiff, would find that the plaintiff has shown

by a preponderance of the evidence that the

professional review process failed the test for

reasonableness as laid out in the HCQIA. Gabaldoni,

250 F.3d at 260.

D. Application of the Test Outlined in the HCQIA:

42 U.S.C. § 11112(a) Standards

In applying the test outlined in § 11112(a), we

begin with the presumption that the hospital has met

the necessary standards for immunity unless this

presumption is rebutted by a preponderance of the

evidence. § 11112(a). The applicable standard is one

of objective reasonableness, viewed in light of the

totality of the circumstances. Freilich, 313 F.3d at

212 (quoting Imperial v. Suburban Hospital Assoc.,

37 F.3d 1026, 1030 (4th Cir.1994)). Reasonableness

standards have been consistently upheld in the

context of qualified immunity. Freilich, 313 F.3d at

213. Such standards are often applied in this context

to afford the officials, or in this the case the doctors

and hospital involved, sufficient latitude to properly

perform discretionary functions. Id. The Fourth

Circuit in Imperial interpreted the language of the

first prong of the test, that the action be taken in the

reasonable belief that quality health care was being

furthered, as establishing a standard of objective

reasonableness looking to the totality of the

circumstances. /mperial, 37 F.3d at 1030. The Fourth

Circuit reaffirmed this interpretation in Freilich. The

Fourth Circuit then elaborated in Freilich stating

that the objective reasonableness standard is a valid

guide for peer review bodies. “The ‘reasonable belief

standard embodies the discretion that health care

53a

professionals have traditionally exercised in

determining whether or not their peers meet a

requisite level of professional competence.” Frreilich,

313 F.3d at 212. The test consists of four-prongs and

states that:

[tlhe peer review action must be taken (1) in the

reasonable belief that the action was in

furtherance 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 procedures 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.

42 U.S.C. § 11112(a)(1)-(4). Each of these prongs will

be discussed in turn.

1. Reasonable Belief That Action was in

Furtherance of Quality Health Care

The first prong outlined in 42 US.C.

§ 11112(a)(1) requires that a peer review action be

taken in the reasonable belief that it was in

furtherance of quality health care. “This prong of the

test is met if the reviewers, with the information

available to them at the time of the professional

review action would reasonably have concluded that

their action would restrict incompetent behavior or

would protect patients.” Brader v. Allegheny General

Hospital, 167 F.3d 832, 840 (3d Cir.1999). The

HCQIA does not require that professional review

activities actually better health care, but only that

review actions be undertaken in the reasonable belief

that quality health care was being furthered.

54a

Imperial v. Suburban Hospital, 37 F.3d 1026, 1030

(4th Cir.1994).

We begin with the presumption that the hospital

has met this prong of the test. Dr. Wahi then has the

burden of offering evidence sufficient to overcome this

presumption. Dr. Wahi argues that the peer review

action taken against him was not taken to further

quality health care, but was an attempt by CAMC to

unlawfully restrain competition in cardiac and

thoracic surgery. As evidence, Dr. Wahi offers the

outcomes of the investigations conducted against

him. He points to the fact that in these investigations

he was not found to have deviated from the standard

of care.

He concludes that since he did not stray from the

standard of care the actions could not have been

taken in the reasonable belief of furthering quality

health care, and that therefore the investigation was

for anti-competitive reasons. This evidence does not

rebut the presumption that the hospital acted

reasonably, because it is not necessary that the

actions actually improve health care or prove that Dr.

Wahi provided substandard care, but instead that the

hospital reasonably believe that some action is

warranted. Imperial, 37 F.3d at 1030. As evidence of

the hospital's anti-competitive motives, Dr. Wahi

alleges that the investigation occurred after he met

with staff from Bluefield Regional Hospital

(Bluefield) and had a patient referred to him by that

hospital. He states that CAMC only looked into his

treatment of said patient, because he had been in

touch with Bluefield about their interest in cardiac

surgery. As support for this contention, Dr. Wahi

cites his own deposition and his own affidavit. He

offers nothing more than his personal belief that this

55a

action had an anti-competitive motive. Self-serving

opinions without objective corroboration are not

considered to be probative, and thus this evidence is

irrelevant. Evans v. Technologies Applications &

Service, Co., 80 F.3d 954, 962 (4th Cir.1996).

The evidence that CAMC's actions were taken in

the reasonable belief of furthering quality health care

is overwhelming, CAMC took action after numerous

reports and complaints surfaced regarding Dr. Wahi's

competence and inability to practice within the scope

of his privileges. The hospital offers the depositions of

several doctors stating that Dr. Wahi continued to act

outside the scope of his restrictions, and that his

actions posed a threat of danger to patients. Even a

letter from St. Francis, relied on by Dr. Wahi, states

that he was suspended because he failed to practice

within the self imposed limits of his privileges.

Plaintiff's Exhibit 18.

A reasonable jury could not find that Dr. Wahi

has shown by a preponderance of the evidence that

the hospital's action was not taken in the reasonable

belief that it was in the furtherance of quality health

care. In fact, Dr. Wahi has failed to offer even a

scintilla of relevant evidence to show that the

hospital acted unreasonably. Dr. Wahi has failed to

rebut the presumption that the professional review

action of CAMC was taken in the reasonable belief

that it was in furtherance of quality health care.

2. Reasonable Effort to Obtain the Facts

The second prong in evaluating a claim for

immunity is that the reviewing entity make a

reasonable effort to obtain the facts. 42 U.S.C.

§ 11112(a)(2). This prong is met when “the totality of

the process leading up to the Board's professional

56a

review action ... evidenced a reasonable effort to

obtain the facts of the matter.” Brader v. Allegheny

General Hospital, 167 F.3d 832, 841 (3d Cir.1999).

Again we begin with the presumption that CAMC

has made a reasonable effort to obtain the facts of the

matter. The plaintiff offers nothing to rebut this

presumption.

We find that no reasonable jury could find that

CAMC took action without a reasonable effort to

obtain the facts of the matter. CAMC enlisted the

assistance and recommendations of numerous

physicians and committees in conducting several

investigations and peer reviews of Dr. Wahi and his

patient care. CAMC has satisfied the second prong of

this test.

3. Adequate Notice and Hearing Procedures,

or Other Such Procedures as are Fair

Under the Circumstances

The third prong of 42 U.S.C. § 11112(a) requires

that the peer review action be taken after adequate

notice and hearing procedures are afforded to the

physician involved, or after such other procedures as

are fair to the physician under the circumstances are

provided. 42 U.S.C. § 11112(a)(3). This prong can be

satisfied in a number of ways. The HCQIA provides

that one way to ensure this prong has been satisfied

is for the hospital to fulfill the requirements of the

HCQIA's safe harbor provision § 11112(b). We note,

however, that failure to meet all the provisions

outlined in § 11112(b) does not in itself constitute a

failure to meet the adequate notice and hearing

standards of subsection (a)(3). Meyers _ v.

Columbia/HCA Healthcare, Corp., 341 F.3d 461, 471

n. 6 (6th Cir.2003) (quoting language from

57a

§11112(b)). The plain language of § 11112(a)(3)

indicates that a hearing is not the only way to fulfill

this prong. It can also be met by the provision of

“such other procedures as are fair to the physician

under the circumstances provided.” § 11112(a)(3).

This is in keeping with the test's overall standard of

objective reasonableness in light of the totality of the

circumstances.

We begin with the presumption that CAMC

fulfilled the requirements of the third prong of this

test. Dr. Wahi contends that CAMC failed to meet

this prong, because it failed to comply with certain

provisions of § 11112(b). In particular he alleges that

CAMC did not set a hearing date, and did not provide

him with a list of witnesses. We will first look at the

evidence offered by Dr. Wahi to support his

contention that he was not given adequate notice and

hearing procedures or other such procedures fair to

him under the circumstances. We will then look at

the evidence provided by the hospital as to the

procedures it provided. In order to rebut the

presumption that the hospital met the third prong of

this test, Dr. Wahi must show that a reasonable juror

looking at the facts in the light most favorable to him,

would find that he has shown by a preponderance of

the evidence that the professional review process

used by the hospital did not provide him adequate

notice and hearing procedures or other procedures

fair to him under the circumstances.

As evidence that CAMC failed to meet the third

prong of the HCQIA immunity test, Dr. Wahi cites

from the hospital's bylaws, and the HCQIA sections

requiring the provision of a witness list and notice of

the date of the hearing. He states in his brief to the

court that this failure to follow procedures is

58a

sufficient by itself to deny immunity to. the

defendants under the HCQIA. This is clearly

contradicted by the plain language of the HCQIA.

The Act states in §11112(b) that “a professional

body's failure to meet the conditions described in this

subsection [11112(b) ] shall not, in itself, constitute

failure to meet the standards of subsection (a)(3) of

this section.” Meyers, 341 F.3d at 471 n. 6 (quoting

§ 11112(b)) (emphasis added).

We now look at the procedures that were

provided by CAMC to Dr. Wahi. CAMC corresponded

with Dr. Wahi on numerous occasions regarding the

proposed actions, his right to request counsel, a

summary of his rights at any subsequent hearing, as

well as, an opportunity to appear and speak at any

committee meetings where concerns were raised

regarding Dr. Wahi's privileges. CAMC first sent Dr.

Wahi a letter on July 8, 1999, informing him that the

Credentials Committee was considering denying his

request for reappointment to the medical staff. In

accordance with the _ hospital's Medical Staff

Procedures Manual, this letter offered Dr. Wahi the

opportunity to meet with the Credentials Committee.

The letter also told Dr. Wahi when the next meeting

would take place and informed him of the nature of

the allegations and _ evidence against him.

Defendant's Exhibit 27. Throughout July, CAMC

kept Dr. Wahi informed of the allegations and

investigations being conducted in a series of letters

and meetings with Dr. Wahi. Defendant's Exhibits

55, 29, 56, 57, 58, 60; and Plaintiff's Exhibit 8. Dr.

Wahi acknowledges awareness of the allegations in a

letter to the Dr. Crotty dated July 15, 1999.

Defendant's Exhibit 55. In it he states:

I understand questions have arisen regarding my

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treatment of this patient and whether or not the

procedure performed was authorized under the

privilege [sic] I currently hold at CAMC. I am

writing to provide you~ with additional

information which I ask the reviewer to consider.

Letter from Dr. Wahi to Dr. Crotty (Defendant's

Exhibit 55).

In August, CAMC informed Dr. Wahi of the

specific issues that would be discussed at the meeting

and again invited him to attend the meeting. This

letter states in relevant part:

You will be informed of the general nature of the

evidence supporting the action contemplated by

the Credentials Committee at your meeting with

them on August 17, 1999. You will be invited to

discuss, explain, or refute it. This meeting is your

opportunity to present the Committee with

additional information that is pertinent to its

evaluation ...

Letter from Dr. Crotty to Dr. Wahi dated August

14, 1999. (Defendant's Exhibit 64). Dr. Wahi does not

dispute receiving any of the above mentioned

correspondence.

Dr. Wahi's attorney, after receiving the above

described correspondence, sent a letter to CAMC

dated September 8, 1999, on Dr. Wahi's behalf,

requesting a hearing pursuant to CAMC's Medical

Staff Procedures Manual. Defendant's Exhibit 38.

After a series of discussions between Dr. Wahi's

attorney and CAMC, CAMC sent a letter dated

December 2, 1999, with details about the hearing and

stating the hearing would be held at a date

convenient to all parties. Defendant's Exhibit 41. By

late December CAMC was still waiting to hear of a

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date that was amenable to Dr. Wahi and his counsel.

On December 21, 1999, Cheryl A. Eifert, the Hearing

Officer appointed by CAMC, sent a letter to Dr.

Wahi's counsel stating, “I am also waiting to hear

from you for the scheduling of the hearing requested

by Dr. Wahi.” Defendant's Exhibit 67.

In July of 2000, the hospital had a telephone

conference with Dr. Wahi's counsel to resolve the

matters in controversy between them, including Dr.

Wahi's pending hearing request. Dr. Wahi's counsel

at the time, George Guthrie, sent a letter to Cheryl

Eifert attaching a proposal whose purpose was to

resolve the matters without § any litigation,

administrative or otherwise. Defendant's Exhibit 68.

These negotiations apparently fell through and in the

fall of 2000, the two parties remained embroiled in

discussions about the parameters and dates of a

hearing. The hospital informed Dr. Wahi that it

would not change the hearing procedures from those

stated in the manual and that a hearing would be

scheduled. In a letter dated October 11, 2000, Chery]

Kifert again requests that Dr. Wahi provide her with

dates for the hearing. She writes in relevant part:

I do request that you provide me with dates for

the administrative hearing at your earliest

convenience. I anticipate the hearing will take a

number of days; therefore, I suggest that we

select dates well enough in advance that all

involved parties can clear their schedules.

Defendant's Exhibit 72.

In November of 2000, Dr. Wahi filed suit in

Kanawha County Circuit Court to enjoin the

proceedings. The Kanawha County Court refused to

rule on the fairness of the hearing until after a

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hearing was held. No hearing has been conducted and

this lawsuit has proceeded from that point.

Even though a hearing was not held, this court

finds that the evidence offered by Dr. Wahi is

insufficient for a reasonable jury to find that CAMC

failed to fulfill its obligations under § 11112(a)(3) by a

preponderance of the evidence. The overwhelming

evidence is that CAMC acted in an objectively

reasonable manner in light of the totality of the

circumstances in this case and took sufficient

measures to ensure Dr. Wahi received adequate

notice of any hearing or meeting that was to occur in

the proposed actions against him. The many letters

between the parties illustrate the hospital's attempts

to set a hearing at Dr. Wahi's request and give him

notice of the hearing. Dr. Wahi was represented by

counsel throughout the entire process and in the end,

he was informed and fully aware of his rights, the

hospital's policies, and the charges and evidence the

hospital had against him. The hospital responded

promptly when Dr. Wahi requested a hearing be

scheduled.

The court finds that in light of the evidence

presented by Dr. Wahi and by CAMC a reasonable

jury could not conclude that Dr. Wahi has shown by a

preponderance of the evidence that CAMC failed to

provide him adequate process as_ required by

§ 11112(a)(3). CAMC has fulfilled the third prong of

the HCQIA test.

4. Reasonable Belief that the Action was

Warranted

The fourth prong to establish immunity, 42

U.S.C. § 11112(a)(4), requires that the reviewers have

a reasonable belief that the action is warranted. In

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determining whether an action was warranted, the

analysis is very similar to the analysis under

§ 11112(a)(1), thus the court does not repeat the

arguments and analysis already addressed under 42

U.S.C. § 11112(a)(1). Gabaldoni v. Washington

County Hospital, 250 F.3d 255, 263 n. 7 (4th

Cir.2001).

Dr. Wahi argues that because some of the

committees who reviewed his work and treatment of

specific patients felt that he followed the necessary

standard of care that his privileges should not have

been suspended. For the action to be warranted, it is

not necessary that every committee that reviews a

physician come to the same conclusion. Brader, 167

F.3d at 843. Dr. Wahi has not put forth sufficient

evidence to overcome the presumption that the

hospital had a reasonable belief that its action was

warranted. The hospital has satisfied the fourth

prong of this test.

C. Findings

In light of the above analysis, this Court finds

that defendant is entitled to immunity under 42

U.S.C. §11111(a). The plaintiff has failed to offer

sufficient evidence upon which a reasonable jury,

examining all the facts in the light most favorable to

him, could find by a preponderance of the evidence

that the professional review process failed the test for

reasonableness as laid out in §11112(a) of the

HCQIA. As such defendants are entitled to immunity

from damages for Counts I, II, III, and V.

Ill. SUMMARY JUDGMENT ON THE

REMAINING ISSUES

To obtain summary judgment, the moving party

must show that there is no genuine issue as to any

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material fact and that the moving party is entitled to

judgments as a matter of law. Fed.R.Civ.P. 56(c). In

considering a motion for summary judgment, the

court will not “weigh the evidence and determine the

truth of the matter.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249, 106S.Ct. 2505, 91 L.Ed.2d 202

(1986). Instead, the court will draw any permissible

inference from the underlying facts in the light most

favorable to the nonmoving party. Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Although the court will view all underlying facts

and inferences in the light most favorable to the

nonmoving party, the nonmoving party nonetheless

must offer some “concrete evidence from which a

reasonable juror could return a verdict in his [or her]

favor.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505.

Summary judgment is appropriate when the

nonmoving party has the burden of proof on an

essential element of his or her case and does not

make, after adequate time for discovery, a showing

sufficient to establish that element. Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91

L.Ed.2d 265 (1986). The nonmoving party must

satisfy this burden of proof by offering more than a

mere “scintilla of evidence” in support of his or her

position. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

A. Breach of Contract Claims

Dr. Wahi asserts two breach of contract claims in

his complaint, one alleging a breach of contract due to

CAMC's violation of its Medical Staff Procedures

Manual, and the other alleging a civil rights violation

under 42 U.S.C. § 1981. The definition of the term

contract is more narrow for the former claim than for

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the latter. The court finds, for the reasons discussed

below, that there was no contract between CAMC and

Dr. Wahi for the purposes of the state law claim, and

that a contract did exist for the purposes of his § 1981

claim. Each of these claims is discussed in full below.

1. State Law Breach of Contract Claim

Dr. Wahi claims that CAMC is contractually

bound by the Medical Staff Procedures Manual as

part of its agreement with him. Dr. Wahi contends

that CAMC breached its contract with him by failing

to provide a hearing on his summary suspensions “as

soon as practicable” and by failing to provide a fair

hearing. Under West Virginia law, unless there is

express language to the contrary, medical staff

bylaws do not constitute a contract between hospital

and physician. Kessel v. Monongalia County General

Hospital, 215 W.Va. 609, 600 S.E.2d 321, 324 Syl. Pt.

4 (2004). In Kessel, the West Virginia Supreme Court

found that because hospitals are required by law to

enact medical staff bylaws, the necessary

consideration to form a contract is lacking, thus

hospital bylaws cannot be considered a contract

between the hospital and the physician. Kessel, 600

S.E.2d at 324. In the case at hand, the bylaws

contained in CAMC's Medical Staff Procedures

Manual do not include express language creating a

contract as required by the West Virginia Supreme

Court. Dr. Wahi's claim fails because the bylaws do

not constitute a contract under West Virginia law.

The physician does possess due process rights.

Where it is alleged that a physician is guilty of

professional incompetence or misconduct, the hospital

is bound by the fair hearing procedural provisions

contained in the medical staff bylaws, but this does

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not transform the bylaws into a contract. Id. at 326-

27. The Supreme Court of West Virginia is concerned

with whether a physician is given basic procedural

due process protections. As long as a_ hospital's

bylaws provide basic procedural protections, and

these bylaws are _ substantially followed in a

particular disciplinary proceeding, a court will

usually not interfere with the committee's

recommendation. Mahmoodian v. United Hospital

Center, 185 W.Va. 59, 404 S.E.2d 750, 755-56 (1991).

Finally, Kessel also recognizes that federal legislation

has been enacted to encourage all hospitals to use the

same professional review procedures. Kessel, 600

S.E.2d at 330.

As discussed in section II.D.3, CAMC provided

Dr. Wahi with notice of upcoming committee

meetings, the nature of the charges against him, and

outlined the rights and remedies available to him.

There is no genuine issue of material fact as to

whether CAMC substantially complied with the

procedures outlined in its manual and with the

federal standards outlined in the HCQIA. Therefore,

summary judgment is GRANTED in favor of the

defendant on the plaintiff's breach of contract claim.

2. 42 U.S.C. § 1981

a) Existence of a Contract

The court must now determine whether a

contract exists between Dr. Wahi and CAMC for the

purposes of § 1981. The bylaws, as discussed above,

do not constitute a contract under West Virginia law

between a hospital and a physician. Dr. Wahi does

not allege any contractual rights based on his status

as an at-will employee. Under § 1981, Dr. Wahi does,

however, have some basic contractual rights based on

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his position as an at-will employee. In Spriggs, the

Fourth Circuit held that an at-will employment

relationship is contractual and can serve as the

predicate contract for a § 1981 claim. Hawkins v.

PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir.2000) (citing

Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-

19 (4th Cir.1999)). The definition of a contract under

§ 1981 simply requires that there be an offer of

employment, an acceptance of that offer, and

consideration in the form of labor. Spriggs, 165 F.3d

at 1018. Dr. Wahi applied to be re-credentialed at

CAMC, CAMC then offered to extend privileges to Dr.

Wahi, and Dr. Wahi accepted the offer and began

performing services at CAMC in exchange for pay.

b) Statute of Limitations

There are two issues to address in assessing Dr.

Wahi's § 1981 breach of contract claim. The first is

whether the statute of limitations has run on his

claim, and if it has not whether his claim survives

summary judgment. Section 1981 does not contain a

statute of limitations. When this is the case, a court

must determine whether the relevant section of the

statute was enacted before or after December 1, 1990.

If enacted before December 1, 1990, the statute of

limitations should generally be determined by

adhering to the most analogous state statute of

limitations. For laws enacted after December 1, 1990,

and not containing a statute of limitations, Congress

enacted a four year catchall statute of limitations in

28 U.S.C. § 1658. Jones v. R.R. Donnelley & Sons,

541 U.S. 369, 371, 124 $.Ct. 1836, 158 L.Ed.2d 645

(2004).

The statute at issue here is 42 U.S.C. § 1981, first

enacted in 1866. Thus it would first appear that we

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should apply the most analogous state statute of

limitations. For claims arising under §1981,

however, the analysis does not end here, because

Congress passed a major amendment to the statute

which went into effect on November 21, 1991. Civil

Rights Act of 1991, Pub.L. No. 102-166, § 101, 105

Stat. 1071 (1991). In this amendment, Congress

defined the term “to make and enforce contracts.”

This amendment added subsections (b) and (ec) to

§ 1981. These new subsections state:

(b) For the purposes of this section, the term

‘make and enforce contracts’ includes the making,

performance, modification, and termination of

contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual

relationship. (c) the rights protected by this section

are protected against impairment by

nongovernmental discrimination and impairment

under color of state law.

Id.

When determining the statute of limitations for a

cause of action under § 1981, a court must decide

whether the suit arises under the 1991 amendment

or under the statute as originally enacted. If the

plaintiff's claim was made possible because of the

post-1990 enactment, it is governed by § 1658's four

year statute of limitations. Jones, 541 U.S. at 382,

124 $.Ct. 1836.

In the present case, Dr. Wahi's cause of action

under §1981 was made possible by the 1991

amendment and thus is subject to the four year

statute of limitations. Prior to 1991, Dr. Wahi would

not have been able to bring a cause of action for the

alleged harassing and discriminatory conduct that he

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faced after the formation of his contract with CAMC.

See Jones, 541 U.S. at 383, 124 S.Ct. 1836 (finding

that a claims for hostile work environment were only

possible under the post-1990 amendment to § 1981

and therefore the four year statute of limitations

applied).

In determining when the statuie of limitations

begins to accrue on a § 1981 action, the “proper focus

is on the time of the discriminatory act, not the point

at which the consequences of the act become painful.”

Chardon v. Fernandez, 454 U.S. 6, 8, 102 S.Ct. 28, 70

L.Ed.2d 6 (1981). Section 1981 claims for wrongful

termination accrue on the date the employer notifies

the employee that he is being terminated. Nghiem v.

U.S. Department of Veteran Affairs, 451 F.Supp.2d

599, 604-05, 2006 WL 2572658 *4 (S.D.N.Y. 2006).

See also Chardon v. Fernandez, 454 U.S. 6, 8, 102

S.Ct. 28, 70 L.Ed.2d 6 (1981) (stating that the

relevant date is when the employee is denied tenure).

In the present case, Dr. Wahi was notified by

letter on July 30, 1999, that his medical staff

privileges at CAMC were being’ summarily

suspended. Defendants Exhibit 32. This suspension is

the alleged discriminatory act at issue in this case.

Dr. Wahi alleges three later dates on which the

statute of limitations could have started to run. There

were no subsequent actions taken after July 30, 1999,

that further affected Dr. Wahi's ability to enjoy his

contractual rights under § 1981, including the rights

to “enjoyment of all benefits, privileges, terms, and

conditions of [his] contractual relationship.”

§1981(b). Thus, this court is convinced that the

relevant date for determining when the statute of

limitations began to run is July 30, 1999. Therefore,

the statute of limitations has run on Dr. Wahit's

69a

§ 1981 claim, and his claim is barred.

c) 42 U.S.C. § 1981 Analysis

For purposes of this brief analysis it will be taken

as true that Dr. Wahi has an employment contract

with CAMC and that the statute of limitations has

not run on Dr. Wahi's cause of action. Section 1981

grants all persons within the jurisdiction of the

United States “the same right ... to make and enforce

contracts ... as is enjoyed by white citizens.” 42 U.S.C.

§ 1981(a). In order to survive a motion for summary

judgment, a plaintiff under § 1981 may proceed

through two avenues of proof. He can either illustrate

direct evidence of discrimination or he can proceed

under the burden shifting framework set forth in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973). Since Dr. Wahi

does not present any direct evidence of intentional

discrimination on the part of CAMC, he must proffer

sufficient circumstantial evidence to satisfy the

McDonnell Douglas analytical framework. Wiiliams

v. Staples, Inc., 372 F.3d 662, 667 (4th Cir.2004).

Under this framework, the plaintiff must first

establish a prima facie case of discrimination, the

defendant may respond with a __ legitimate,

nondiscriminatory reason, and then the plaintiff may

adduce evidence to show that the defendant's

proffered reason was mere pretext and that race was

the real reason for disparate treatnient. Id. (citing

Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th

Cir.2000)). In assessing whether the plaintiff has

provided sufficient evidence such that his case may

proceed to trial, this court's decision is informed by

the summary judgment standard. Hux v. Newport

News, 451 F.3d 311, 315 (4th Cir.2006).

70a

The first prong of the framework is for the

plaintiff to establish a prima facie case of

discrimination. The test for proving prima facie

disparate disciplinary practices consists of the

following three elements: (1) the plaintiff is a member

of a protected class; (2) the prohibited conduct in

which the plaintiff engaged was as serious as the

misconduct of employees outside the protected class;

and (3) the employer imposed harsher disciplinary

measures against plaintiff than against employees

outside the protected class. Carter v. Ball, 33 F.3d

450, 460 (4th Cir.1994) (citing Cook v. CSX Transp.

Corp., 988 F.2d 507, 511 (4th Cir.1993)).

Dr. Wahi is a member of a protected class. He

alleges in his affidavit that Caucasian doctors have

engaged in more serious misconduct, but have had no

disciplinary measures taken against them. Assuming

arguendo that Dr. Wahi has made out a prima facie

case of race discrimination the burden now shifts to

CAMC to. articulate some _ legitimate non-

discriminatory reason for its action. O'Connor v.

Consolidated Coin Caterers Corp., 517 U.S. 308, 311,

116 S.Ct. 1307, 184 L.Ed.2d 433 (1996) (internal

quotation marks omitted). Once CAMC meets this

burden, Dr. Wahi must prove that CAMC's proffered

reason was mere pretext and that race was the real

reason for the discrimination. Hawkins v. PepsiCo,

Inc., 203 F.3d 274, 278 (4th Cir.2000).

CAMC states that it disciplined Dr. Wahi out of

concern for the health and safety of his patients.

CAMC offers evidence that Dr. Wahi was disciplined

because his practices were not safe and exposed

patients to unacceptable risk. Although Dr. Wahi

disputes accepting the findings of the Third Review

Committee, he voluntarily relinquished his privileges

dla

in 1995. After additional training, Dr. Wahi was

allowed to return to practice at CAMC with severe

restrictions on his privileges, and when those

restrictions were violated, CAMC took action. In hght

of these uncontroverted facts, CAMC has met its

burden by providing evidence that it acted out of

these health and safety concerns and not because Dr.

Wahi is Indian.

Dr. Wahi now has the burden of showing that the

hospital's legitimate, nondiscriminatory justifications

for its actions were pretextual. The limited evidence

that Dr. Wahi offers to support his contentions that

CAMC's reasons were pretextual consists of his self>-

serving affidavit. In his’ affidavit he makes

accusations against various colleagues pointing to

instances where he _ believes they provided

substandard health care resulting in the deaths of

multiple patients. He then notes that none of these

colleagues were disciplined, and concludes that this

was due to race. Dr. Wahi also alleges racial

discrimination on the part of the committee, because

some of its members were of Pakistani descent, and

he believes that they discriminated against him

because he is Indian and Hindu. These allegations

are not supported by objective evidence. A plaintiff

cannot establish pretext by relying on criteria of his

own choosing when the employer based its decision

on other grounds. Hux, 451 F.3d at 315 (quoting

Anderson v. Westinghouse Savannah River (@., 406

F.3d 248, 271 (4th Cir.2005)). Self-serving opinions,

without corroborating objective evidence, are not

considered to be significantly probative. See Evans v.

Technologies Applications & Service Co., 80 F.3d 954,

962 (4th Cir.1996) (finding district court's decision to

strike portions of plaintiff's affidavit not improper as

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the portions struck contained self-serving opinions

and unsupported assertions of colleagues'

qualifications). Generally, an affidavit filed in

opposition to a motion for summary judgment must

present evidence in substantially the same form as if

the affiant were testifying in court. Id. Summary

judgment affidavits cannot be conclusory or based on

hearsay. Id. Additionally, Dr. Wahi's affidavit does

not offer any evidence that these were similarly

situated physicians. Dr. Wahi already had

restrictions placed on his practice. He does not

contend that these other physicians were operating

under similar restrictions.

Plaintiff's attempt to find pretext in the hospital's

neutral explanation consists of comparing himself to

various physicians based on_ his _ personal

observations. He cannot simply compare himself to

other physicians based on his personal evaluation of

their care. His evaluations of other physicians'

practices are irrelevant to the validity of CAMC's

explanation for its actions. See Hux, 451 F.3d at 315

(noting that a plaintiff cannot establish pretext by

relying on criteria of her choosing when the employer

based its decision on other grounds) (quoting

Anderson, 406 F.3d at 271). The evidence presented

by Dr. Wahi fails to cast doubt on the validity of

CAMC's explanation, and therefore does not create a

genuine dispute. Dr. Wahi's response to CAMC's

neutral explanation for it's action is not sufficient to

overcome the summary judgment standard. Therefore

even if the statute of limitations has not run, the

court would grant CAMC's motion for summary

judgment on the § 1981 claim.

73a

B. 42 U.S.C. § 1983

Dr. Wahi alleges that CAMC and the Board of

Medicine conspired to deny him his medical license.

“To establish a civil conspiracy under section 1983,

Appellants must present evidence that the Appellees

acted jointly in concert and that some overt act was

done in furtherance of the conspiracy which resulted

in Appellants' deprivation of a constitutional right.”

Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th

Cir.1996). “Appellants have a weighty burden to

establish a civil rights conspiracy. While they need

not produce direct evidence of a meeting of the minds,

Appellants must come forward with _ specific

circumstantial evidence that each member of the

alleged conspiracy shared the same conspiratorial

objective.” Id. In order to survive a_ properly

supported summary judgment motion, plaintiff's

evidence must, at least, reasonably lead to the

inference that defendants positively or tacitly came to

a mutual understanding to try te accomplish a

common and unlawful plan. Id.

In the case at hand, Dr. Wahi does not offer even

a scintilla of evidence that there was communication

between CAMC and the Board of Medicine beyond

that required by law. Each letter or meeting that he

identifies is one required by the state and federal

reporting laws. The HCQIA requires that any time a

health care entity takes a professional review action

that adversely affects the clinical privileges of a

physician for a period of longer than thirty days it

must report this action to the Board of Medicine.

‘obbs, 789 F.Supp. at 1063 (quoting language from

42 U.S.C. § 11133(a)(1)).

To support his contention, Dr. Wahi states that

74a

CAMC reported him to the Board of Medicine and the

Data Bank on various occasions leading the Board of

Medicine to investigate him. He notes that he was

investigated three times and on all three occasions

the charges were dismissed due to lack of evidence.

Dr. Wahi has offered no evidence that defendants and

the Board of Medicine were not meeting simply to

fulfill their obligations and rights under the HCQIA

11133(a)(1) and West Virginia Code § 30-3-14(b)

reporting requirements. He has offered no evidence

on this issue from which a reasonable juror could

return a verdict in his favor. Therefore, the court

GRANTS CAMC's motion for summary judgment on

Dr. Wahi's § 1983 claim.

IV. REQUESTS FOR INJUNCTIVE RELIEF

The HCQIA does not provide immunity from

injunctive relief. Imperial, 37 F.3d at 1030. However,

because Dr. Wahi fails to make any argument or

allege any facts that would entitle him to injunctive

relief this court GRANTS defendants' Motions for

Summary Judgment on Count I, Count II, and Count

V.

The court DIRECTS the Clerk to send a copy of

this Order to counsel of record and any

unrepresented party.

ENTER: September 29, 2006

/s/ Joseph R. Goodwin

Joseph R. Goodwin

United States District Judge

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APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST

VIRGINIA

CHARLESTON DIVISION

CIVIL ACTION NO. 2:04-cv-00019

RAKESH WAHI, M.D.

Plaintiff,

Vv.

CHARLESTON AREA MEDICAL CENTER, et al.,

Defendants.

JUDGMENT ORDER

In accordance with the accompanying Order, the

court orders that judgment be entered in favor of the

defendants and that this case be dismissed and

stricken from the docket of this court.

The court DIRECTS the Clerk to send a certified

copy of this Judgment Order to counsel of record and

any unrepresented parties.

ENTER: September 29, 2006

/s/ Joseph R. Goodwin

Joseph R. Goodwin

United States District Judge

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APPENDIX E

UNITED STATES CODE

TITLE 42--THE PUBLIC HEALTH AND

WELFARE

CHAPTER 117: ENCOURAGING GOOD FAITH

PROFESSIONAL REVIEW ACTIVITIES

SUBCHAPTER I. PROMOTION OF

PROFESSIONAL REVIEW ACTIVITIES

42 U.S.C. § 11112. Standards for professional review

actions

(a) In general

For purposes of the protection set forth in section

11111(a) of this title, a professional review action must

be taken-

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

the furtherance 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

procedures 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.

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(b) Adequate notice and hearing

A health care entity is deemed to have met the

adequate notice and hearing requirement of subsection

(a)(3) of this section with respect to a physician if the

following conditions are met (or are waived voluntarily

by the physician):

(1) Notice of proposed action

The physician has been given notice stating—

(A)G) that a professional review action has been

proposed to be taken against the physician,

(ii) reasons for the proposed action,

(B)G) that the physician has the right to request a

hearing on the proposed action,

(i) any time limit (of not less than 30 days) within

which to request such a hearing, and

(C) a summary of the rights in the hearing under

paragraph (3).

(2) Notice of hearing

[f a hearing is requested on a timely basis under

paragraph (1)(B), the physician involved must be given

notice stating

(A) the place, time, and date, of the hearing, which

date shall not be less than 30 days after the date of the

notice, and

(B) a list of the witnesses (if any) expected to testify

at the hearing on behalf of the professional review

body.

(3) Conduct of hearing and notice

{ a hearing is requested on a timely basis under

paragraph (1)(B)--

7T8a

(A) subject to subparagraph (B), the hearing shall be

held (as determined by the health care entity)--

(i) before an arbitrator mutually acceptable to

the physician and the health care entity,

(ii) before a hearing officer who is appointed by

the entity and who is not in direct economic

competition with the physician involved, or

(iii) before a panel of individuals who are

appointed by the entity and are not in direct

economic competition with the physician

involved;

(B) the right to the hearing may be forfeited if the

physician fails, without good cause, to appear;

(C) in the hearing the physician involved has the

right-

(i) to representation by an attorney or other

person of the physician's choice,

(ii) to have a record made of the proceedings,

copies of which may be obtained by the physician

upon payment of any reasonable charges

associated with the preparation thereof,

(iii) to call, examine, and _ cross-examine

witnesses,

(iv) to present evidence determined to be

relevant by the hearing officer, regardless of its

admissibility in a court of law, and

(v) to submit a written statement at the close of

the hearing; and

(D) upon completion of the hearing, the physician

involved has the right--

(i) to receive the written recommendation of the

79a

arbitrator, officer, or panel, including a

statement of the basis for the recommendations,

and

(ii) to receive a written decision of the health

care entity, including a statement of the basis for

the decision.

A professional review body's failure to meet the

conditions described in this subsection shall ‘not, in

itself, constitute failure to meet the standards of

subsection (a)(3) of this section.

(c) Adequate procedures in investigations or health

emergencies

For purposes of section 11111(a) of this title, nothing

in this section shall be construed as-

(1) requiring the procedures referred to in subsection

(a)(3) of this section--

(A) where there is no adverse professional review

action taken, or

(B) in the case of a suspension or restriction of

clinical privileges, for a period of not longer than

14 days, during which an investigation is being

conducted to determine the need for a

professional review action; or

(2) precluding an immediate suspension or

restriction of clinical privileges, subject to

subsequent notice and hearing or other adequate

procedures, where the failure to take such an action

may result in an imminent danger to the health of

any individual.

(Pub. L. 99-660, title IV, §412, Nov. 14, 1986, 100 Stat.

3785.)

80a

APPENDIX F

RECORD NO. 06-2162

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

RAKESH WAHI,

Plaintiff-Appellant,

v.

CHARLESTON AREA MEDICAL CENTER,

INCORPORATED, a West Virginia Corporation;

Glenn Crotty; John Does I-X,

Defendants-Appellees,

JANE DOES NUMBERS 1 THROUGH 10; JAMAL

KAHN; H. RASHID; K.C. LEE; ANDREW VAUGHN;

JOHN L. CHAPMAN,

Defendants.

ON APPEAL FROM THEUNITED STATES DISTRICT COURT

FOR THESOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

BRIEF OF APPELLEES — UNDER SEAL

David S. Givens Richard D. Jones

Flaherty, Sensabaugh & Flaherty, Sensabaugh &

Bonasso, PLLC Bonasso, PLLC

1225 Market Street 200 Capitol Street

Wheeling, West Virginia Charleston, West

26003 Virginia 25301

(304) 230-6600 (304) 345-0200

Counsel for Appellees Counsel for Appellees

8la

Page 31

[REDACTED]

(JA 786-88).

Id.13

Wahi failed to carry his burden before the district

court to demonstrate by a preponderance of the

evidence that CAMA did not afford him adequate

notice and hearing procedures as were fair under the

circumstances. The district court properly found that

CAMC is entitled to HCQIA immunity and dismissed

all claims within the scope of that immunity.

2. CAMA did not violate Wahi’s due process

rights or HCQIA by suspending him without

a prior finding that he posed an imminent

danger to patients.

Wahi alleges that CAMC deviated from its

procedures manual when it summarily suspended

him. He argues that a finding of “imminent danger”

is necessary for his suspension, and that his

suspension improperly lasted longer than fourteen

(14) days. These arguments lack merit.

7 Despite Defendants’ repeated requests to jointly seek with Wahi a

limited release of records from the Grant County action to use in this case,

he refuses to join with Defendants. Although CAMC believes the district

court had more than sufficient evidence for it to decide all material issues,

an examination of the entirely of the record from the Grant County action

would demonstrate that Wahi is not being candid. Certainly, Wahi knows

that he had complete access to all records, obtained all records which he

and his counsel sought, and knows full well the scope of the

overwhelming evidence against him.