Chudacoff v. UNIV. MED. CENTER OF SOUTHERN NEVADA

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NOT FOR PUBLICATION JUN 09 2011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).
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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
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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).
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