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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2009

## Text

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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.

3

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

59a

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

6la

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

63a

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

64a
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

65a

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

66a

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

67a

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

68a

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

72a

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

75a
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

76a
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.

77a
(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)

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_1099%3A2. Public record. Not legal advice.