Chudacoff v. UNIV. MED. CENTER OF SOUTHERN NEVADA , 437 F. App'x 609 ( 2011 )


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  •                                                                         FILED
    NOT FOR PUBLICATION                        JUN 09 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                  U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    RICHARD CHUDACOFF, M.D.,                       Nos. 09-17558 and 09-17652
    Plaintiff-Appellant/              D.C. No. 2:08-cv-00863-ECR-RJJ
    Cross-Appellee,
    v.                                           MEMORANDUM *
    UNIVERSITY MEDICAL CENTER OF
    SOUTHERN NEVADA, a political subdivision of
    Clark County, State of Nevada; BRUCE L.
    WOODBURY, TOM COLLINS, CHIP
    MAXFIELD, LAWRENCE WEEKLY, CHRIS
    GIUNCHIGLIANI, SUSAN BRAGER, and
    RORY REID, Clark County Commissioners, ex-
    officio, the Board of Trustees of University
    Medical Center of Southern Nevada;
    KATHLEEN SILVER, an individual; THE
    MEDICAL AND DENTAL STAFF OF THE
    UNIVERSITY MEDICAL CENTER OF
    SOUTHERN NEVADA; JOHN ELLERTON,
    M.D., an individual; MARVIN J. BERNSTEIN,
    M.D., an individual; DALE CARRISON, M.D.,
    an individual; DONALD ROBERTS, M.D., an
    individual,
    Defendants-Appellees/
    Cross-Appellants.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    Appeal from the United States District Court
    for the District of Nevada
    Edward C. Reed, Senior District Judge, Presiding
    Argued and Submitted December 9, 2010
    San Francisco, California
    Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.
    In a separate opinion filed concurrently with this memorandum disposition, we
    reversed the district court’s grant of summary judgment on Dr. Richard Chudacoff’s
    (“Chudacoff”) due process claims in favor of Defendants John Ellerton, Dale
    Carrison, Marvin Bernstein, and Donald Roberts, voting members of the Medical
    Executive Committee (“MEC”) of the Medical and Dental Staff at the University
    Medical Center of Southern Nevada (“UMC”).            With respect to Chudacoff’s
    defamation and negligence per se claims under Nevada state law, we affirm as to all
    Defendants, and we therefore need not reach the issue of immunity under the Health
    Care Quality Improvement Act (“HCQIA”) raised on cross-appeal.      1
    I. State Law Claims
    A. Defamation
    1
    HCQIA immunity cannot shield Defendants from liability for damages sought
    under 
    42 U.S.C. § 1983
    , Title VII of the Civil Rights Act of 1964, or the federal or
    state Constitutions, and is thus irrelevant to Chudacoff’s due process claims. See 
    42 U.S.C. § 11111
    (a) (2006); Patrick v. Burget, 
    486 U.S. 94
    , 105 n.8 (1988); Austin v.
    McNamara, 
    979 F.2d 728
    , 733 (9th Cir. 1992).
    2
    To establish defamation under Nevada state law, Chudacoff must show: (1)
    Defendants made a false and defamatory statement about him; (2) the publication was
    not privileged; (3) Defendants were at least negligent if not more at fault; and (4) he
    suffered actual or presumed damages as a result. Simpson v. Mars, Inc., 
    929 P. 2d 966
    , 967 (Nev. 1997) (citing Chowdhry v. NLVH, Inc., 
    851 P.2d 459
    , 462 (Nev.
    1993)).
    The district court correctly granted summary judgment because the sole alleged
    defamatory statement, Ellerton’s adverse report to the National Practitioners Data
    Bank (“NPDB”), was made pursuant to the HCQIA’s statutory reporting requirements
    and was therefore conditionally privileged. See 
    42 U.S.C. §§ 11133
    (a)(1)(A) &
    (a)(3), 11134; 
    45 C.F.R. §§ 60.1
    , 60.3, 60.5(d), 60.11(a)(1)(i) & (b); Circus Circus
    Hotels, Inc. v. Witherspoon, 
    657 P.2d 101
    , 105 (Nev. 1983) (qualified or conditional
    privilege available “where a defamatory statement is made in good faith on any
    subject matter in which the person communicating has an interest, or in reference to
    which he has a right or a duty, if it is made to a person with a corresponding interest
    or duty”); see also Jesinger v. Nev. Fed. Credit Union, 
    24 F.3d 1127
    , 1133 & n.10
    (9th Cir. 1994) (collecting cases finding qualified privilege under similar
    circumstances of information-sharing between current and prospective employers
    about employee’s performance).
    3
    Furthermore, although the content of the NPDB report was ultimately modified,
    Chudacoff presents no evidence that Ellerton acted with malice in fact in filing the
    initial report. See Circus Circus, 
    657 P.2d at
    105 & n.2. Chudacoff has shown neither
    “spite or ill will or some other wrongful motivation,” see id.; see also Nev. Rev. Stat.
    41.332, nor “a high degree of awareness of the probable falsity” of the report on the
    part of Ellerton, see Nev. Indep. Broad. Corp. v. Allen, 
    664 P.2d 337
    , 344 (Nev. 1983)
    (internal quotation marks and alterations omitted). The question of malice “goes to
    the jury only if there is sufficient evidence for a jury reasonably to infer that the
    publication was made with malice in fact,” and Chudacoff has not met this burden of
    production. See Circus Circus, 
    657 P.2d at 105
     (internal citations omitted).
    B. Negligence Per Se
    Chudacoff is under the mistaken impression that violation of his due process
    rights, without more, establishes negligence per se as a matter of Nevada law. A
    negligence per se claim arises only when a duty is created by statute and “the injured
    party is in the class of persons whom the statute is intended to protect and the injury
    is of the type against which the statute is intended to protect.” Sanchez ex rel. Sanchez
    v. Wal-Mart Stores, Inc., 
    221 P.3d 1276
    , 1283 (Nev. 2009) (internal citation omitted).
    Chudacoff has neither asserted nor established that § 1983, even if violated here, was
    designed specifically to protect hospital physicians as a class, and while the MEC’s
    4
    deviation from the hospital’s administrative guidelines may be evidence of negligence,
    it does not give rise to a claim for negligence per se. See Price v. Sinnott, 
    460 P.2d 837
    , 840 (Nev. 1969).
    II. HCQIA Immunity
    Defendants cross-appeal from that part of the April Order determining
    defendants are not entitled to immunity under the HCQIA for failure to comply with
    its statutory requirements.
    We affirm the district court’s grant of summary judgment as to Chudacoff’s
    state law claims and therefore need not consider whether the HCQIA would immunize
    defendants from damages liability arising from those claims.2
    AFFIRMED.
    2
    Were we to reach the issue, we would be inclined to affirm the denial of
    HCQIA immunity. Although the district court erred in treating noncompliance with
    
    42 U.S.C. § 11112
    (b)’s “safe harbor” provision as automatically preclusive of HCQIA
    immunity, Defendants not only failed to provide Chudacoff with notice and hearing
    as prescribed by the “safe harbor” provision prior to suspension of his privileges, but
    also failed to provide him with any reasonable alternative procedures. Defendants’
    actions do not satisfy the fairness requirements under 
    42 U.S.C. § 11112
    (a), nor can
    Chudacoff’s more-than-fourteen-day suspension be justified as a summary or health-
    emergency suspension under 
    42 U.S.C. § 11112
    (c), particularly when Defendants
    have already conceded that it was not a summary suspension but rather a “routine
    administrative action.” See Chudacoff v. Univ. Med. Ctr. of S. Nev. (“Chudacoff I”),
    
    609 F. Supp. 2d 1163
    , 1171 (D. Nev. 2009).
    5