Wong, M.D. v. Sunrise Mountainview Hospital ( 2014 )

 Because the parties are familiar with the facts, this court will
provide only those necessary for its disposition. Appellant doctor was
subject to a peer review hearing regarding a recommendation to revoke his
medical staff membership and privileges at respondent MountainView
Hospital. Appellant received notice, attended the hearing without counsel,
and lodged no objections before or during the hearing. The hearing
committee decided to revoke appellant's privileges, and the decision was
upheld on an internal appeal. Appellant brought a district court action
against, among others, MountainView and its medical staff (respondents). 1
Appellant sought tort and contract damages.
Respondents filed a motion to dismiss appellant's complaint
for failure to state a claim and based on immunity under the Health Care
Quality Improvement Act (HCQIA). In opposing respondents' motion to
dismiss as to HCQIA immunity, appellant challenged only the
requirement of adequate notice and hearing. The district court issued an
order granting respondents'S motion to dismiss all of appellant's claims
except for breach of contract, breach of the implied covenant of good faith
and fair dealing, and negligence as to MountainView. The court stated
that it was inclined to dismiss the remaining claims based on HCQIA
immunity, but reserved its ruling on the issue to allow appellant to
lAppellant also sought declaratory relief against the Secretary of the
Department of Health and Human Services. As a result, the case was
removed from state court to federal district court to address appellant's
ultimately unsuccessful claims against the Secretary. The case was then
remanded to state court.
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conduct discovery regarding the adequate notice and hearing
re quirement . 2
During discovery, appellant filed a motion to compel. The
district court denied the motion, and, based on HCQIA immunity, granted
respondents' motion to dismiss appellant's remaining claims against
MountainView. Appellant challenges both district court orders granting
respondents' motion to dismiss.
HCCIL4 immunity
This court reviews a district court order granting an NRCP
12(b)(5) motion to dismiss as a summary judgment when the district court
considers evidence outside of the pleadings. See Meyer v. Sunrise Hosp.,
117 Nev. 313, 320-21, 22 P.3d 1142, 1148 (2001). Summary judgment
under HCQIA requires this court's de novo review to begin "with a
presumption that the peer review action met the standards set forth in
HCQIA." Id. at 322, 22 P.3d at 1149 (citing 42 U.S.C. § 11112(a)). "Mhis
court will affirm the grant of summary judgment unless a reasonable jury,
viewing the facts in a light most favorable to [the plaintiff], could conclude
by a preponderance of the evidence that the hospital's actions fell outside
the protection afforded by section 11112(a)." Id.
For a peer review action to be immune, it must be made
(1) in furtherance of quality health care; (2) after a
reasonable effort to obtain the facts in the matter;
(3) after adequate notice and hearing; and (4) in
the reasonable belief that the action was
warranted based on the facts known.
2 Appellant included information gained from this discovery in his
supplemental opposition to respondents' motion to dismiss.
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Id. (citing 42 U.S.C. § 11112). A health care entity that satisfies all of
these conditions will "not be liable in damages under any law . . . with
respect to the action." 3 42 U.S.C. § 11111(a)(1).
Because appellant challenged only the adequate notice and
hearing requirement in his opposition to respondents' motion to dismiss as
to HCQIA, the other three requirements were waived. See Citizens for
Responsibility & Ethics in Washington v. Cheney, 593 F. Supp. 2d 194, 229
(D.D.C. 2009) (stating that a "failure to respond to an argument in a
[m]otion to [d]ismiss acts as a concession"). Moreover, by failing to object
at the outset of or during his peer review hearing, appellant waived all
adequate notice and hearing challenges. 4 See 42 U.S.C. § 11112(b); see,
e.g., Moore v. Williamsburg Reg'l Hosp., 560 F.3d 166, 176 (4th Cir. 2009).
Accordingly, the district court did not err by granting respondents' motion
to dismiss because HCQIA immunity precluded all of appellant's claims. 5
Motion to compel
This court will "not disturb a district court's ruling regarding
discovery unless the court has clearly abused its discretion." Club Vista
Servs. v. Din. Ct., 128 Nev. „ 276 P.3d 246, 249 (2012). The district
court allowed appellant to engage in discovery only regarding the
3 Thisimmunity does not apply to claims related to a person's civil
rights. 42 U.S.C. § 11111(a)(1)(D). Appellant made no such claim.
4 We note that the district court found that appellant received proper
notice under HCQIA.
°Although appellant's complaint contained requests for declaratory
relief, this relief was sought only against the Secretary, who was not party
to the action at the time of the district court's decisions.
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requirement of adequate notice and hearing; however, nearly all of
appellant's propounded discovery requests exceeded the scope of the
permitted discovery by attempting to obtain information about 42 U.S.C.
11112(a)'s other requirements. Appellant's remaining contentions
regarding his motion to compel fell within the district court's wide
discretion. Thus, the district court did not abuse its discretion by denying
appellant's motion to compe1. 6 Accordingly, we affirm the district court's
decision.
ORDER the judgment of the district court AFFIRMED.
‘AttA,“Ieesockl J.
Hardesty
AR J.
Douglas
Cherry
cc: Hon. Douglas W. Herndon, District Judge
Stephen E. Haberfeld, Settlement Judge
Hafter Law
Bailey Kennedy
Eighth District Court Clerk
6 We have considered all of appellant's remaining claims and
conclude that they lack merit.
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