Soriano v. Neshoba County General Hospital Board of Trustees ( 2012 )

Case: 11-60481 Document: 00511960275 Page: 1 Date Filed: 08/17/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 17, 2012
No. 11-60481 Lyle W. Cayce
Clerk
DR. A. P. SORIANO,
Plaintiff-Appellant
v.
NESHOBA COUNTY GENERAL HOSPITAL BOARD OF TRUSTEES, In
Their Official Capacities, Namely Roger Owen, Marvin Page, Jo Helen Daly,
Kenneth Coleman, & Oliver Jolly; NESHOBA COUNTY GENERAL
HOSPITAL MEDICAL STAFF EXECUTIVE COMMITTEE, In Their Official
Capacities, Namely Patrick Eakes, M.D., Jon Boyles, M.D., Andrew P. Dabbs,
M.D., & Vankat Yedlapalli, M.D.; NESHOBA COUNTY GENERAL
HOSPITAL APPEALS COMMITTEE OF THE MEDICAL STAFF, In Their
Official Capacities, Namely Walt Willis, M.D., Chairman Michael J. Nanny,
M.D., & Phillip Lucas, M.D.; KAREN FIDUCIA, Individually and in her
Official Capacity as Interim Administrator of Neshoba County General
Hospital; R.N. BETH BURNS, Individually and in her Official Capacity as
Head of Nursing Services of Neshoba County General Hospital; M.D.
JEFFREY TODD WILLIS, Individually and in his Official Capacity as
Member of the Medical Staff of Neshoba County General Hospital; M.D.
WALTER WILLIS, Individually and in his Capacity as Chief of Emergency
Room Services, Chairman of the Appeal Committee, & Member of the Medical
Staff of Neshoba County General Hospital; M.D. ANDREW P. DABBS,
Individually and in his Capacity as Chairman of the Medical Executive
Committee of Neshoba County General Hospital & as a Member of the
Medical Staff of Neshoba County General Hospital; M.D. JOHN MANN,
Individually and in his Official Capacity as Member of the Investigative
Committee of the Medical Staff of Neshoba County General Hospital;
QUORUM HEALTH RESOURCES L.L.C.,
Defendants-Appellees
Case: 11-60481 Document: 00511960275 Page: 2 Date Filed: 08/17/2012
No. 11-60481
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:08-CV-68
Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Dr. A. P. Soriano sued the Neshoba County General Hospital’s board of
trustees and numerous staff members after his hospital privileges were revoked.
He alleged claims for inter alia violation of procedural and substantive due
process, defamation, and tortious interference with business relations. The
district court granted summary judgment to the defendants, and Dr. Soriano
appeals. Reviewing the record de novo, see Carnaby v. City of Houston, 636 F.3d
183, 187 (5th Cir. 2011), we AFFIRM for the following reasons:
1. The defendants afforded Dr. Soriano adequate procedural due process
by granting him a multi-step peer review and appeal process pursuant to
the hospital’s medical staff by-laws. This process included review by the
Investigative Committee, the Medical Executive Committee, the Appeals
Committee, and the Board of Trustees. Dr. Soriano had the assistance of
counsel at a formal hearing, and he was able to testify and cross-examine
witnesses before his privileges were revoked. His procedural due process
rights were not violated. See, e.g., Finch v. Fort Bend Indep. Sch. Dist.,
333 F.3d 555, 562 (5th Cir. 2003) (“The essential requirements of
procedural due process under the Constitution are notice and an
opportunity to respond.”); see also Caine v. Hardy, 943 F.2d 1406, 1411–12
(5th Cir. 1991) (en banc).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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2. Dr. Soriano asserts that the review process was tainted because Dr.
Mann, an Investigative Committee member, was biased, and because the
members of the Appeals Committee were not neutral insofar as they stood
to benefit financially from his removal from the hospital staff. His
assertions are conclusory and insufficient to create a fact issue in
opposition to summary judgment. See Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc). Moreover, with respect to Dr. Mann,
the record shows that members of both the Medical Executive Committee
and the Appeals Committee testified that they reviewed the record
independently of Dr. Mann’s report. The defendants’ decision to revoke
Dr. Soriano’s privileges was neither arbitrary nor capricious. See Lewis
v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625, 630–31 (5th Cir.
2011).
3. Dr. Soriano has failed to create an issue of fact as to whether the
nurses were concerned about his failure to transfer a cardiac patient
immediately, and whether the nurses ignored his orders to consult with
Dr. Yedlapalli during the night. Regardless whether the nurses indicated
their concern on the patient’s chart, the record shows that Dr. Soriano
knew about the patient’s elevated enzyme levels and that it was not the
nurses’ job to tell him how to respond. As for the alleged orders to consult
Dr. Yedlapalli, Dr. Soriano did not raise this issue in the district court,
and he may not do so for the first time on appeal. See, e.g., Greenberg v.
Crossroads Sys., Inc., 364 F.3d 657, 669 (5th Cir. 2004) (arguments not
raised in opposition to summary judgment may not be raised for the first
time on appeal). Furthermore, the patient’s chart, the nurses’ testimony,
and even Dr. Soriano’s pleadings in the district court, all show that Dr.
Soriano ordered the nurses to consult with Dr. Yedlapalli and a
cardiologist in the morning.
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4. Dr. Soriano’s claim for defamation because the defendants reported the
revocation of his privileges to the National Practitioners Data Bank is
without merit. The defendants are immune from this state-law claim
pursuant to the Health Care Quality Improvement Act (“HCQIA”). See 42
U.S.C. § 11111(a)(1). Dr. Soriano asserts that the defendants were not
motivated by a concern for quality health care, see § 11112(a)(1), because
they treated him differently than other doctors who allegedly provided
deficient care to patients but were not investigated. Besides failing to
brief this contention adequately, Dr. Soriano expressly testified that he did
not know whether the other doctors were investigated. Although he
contends that an investigation of his case was not warranted, we do not
second guess the merits of the decision but rather evaluate only whether
the defendants afforded Dr. Soriano fair procedures and made a
reasonable investigation and a reasonable decision based on the facts
before them. See Bryan v. James E. Holmes Reg’l Med. Ctr., 33 F.3d 1318,
1337 (11th Cir. 1994); see also Johnson v. Spohn, 334 F. App’x 673, 679–80
(5th Cir. 2009). Based on the record, we are satisfied that is the case.
5. Finally, with respect to the claim for tortious interference with business
relations, Dr. Soriano provides only speculative and conclusory assertions
in his brief. Moreover, the claim, like the state-law defamation claim, is
barred under the HCQIA. See § 11111(a)(1).
AFFIRMED.
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