560 F.3d 166 (4th Cir. 2009), 07-1966, Moore v. Williamsburg Regional Hosp.

Docket Nº:07-1966.
Citation:560 F.3d 166
Party Name:Blake H. MOORE, MD, Facs, Individually and as the Personal Representative of the Estate of Angela Lynn Moore; Kingstree Surgical Associates, LLC, Plaintiffs-Appellants, v. WILLIAMSBURG REGIONAL HOSPITAL; John Hales; Breton Juberg, MD; Evelyn Ansa, MD; Joel Bonaparte, MD; Bernadette Bonaparte, MD; Kenneth Johnson, MD; Steve Corey, DPM; Michelle Core
Case Date:March 12, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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560 F.3d 166 (4th Cir. 2009)

Blake H. MOORE, MD, Facs, Individually and as the Personal Representative of the Estate of Angela Lynn Moore; Kingstree Surgical Associates, LLC, Plaintiffs-Appellants,


WILLIAMSBURG REGIONAL HOSPITAL; John Hales; Breton Juberg, MD; Evelyn Ansa, MD; Joel Bonaparte, MD; Bernadette Bonaparte, MD; Kenneth Johnson, MD; Steve Corey, DPM; Michelle Corey-Butterworth, DPM; Kevin Springle, MD; Gilbertas Rimkus, MD, Jointly and Severally, Defendants-Appellees,


Raymond Allen, MD; Bashir Obeidou, MD; Marion Riggs, Jointly and Severally, Defendants,

Providence Hospital, Party in Interest.

No. 07-1966.

United States Court of Appeals, Fourth Circuit.

March 12, 2009

Argued: Dec. 3, 2008.

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[Copyrighted Material Omitted]

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Charles William Hinnant, Jr., Medicolegal Consultants, L.L.C., Anderson, South Carolina, for Appellants.

Travis Dayhuff, Nelson, Mullins, Riley & Scarborough, L.L.P., Columbia, South Carolina, for Appellees.


Stuart M. Andrews, Jr., Nelson, Mullins, Riley & Scarborough, L.L.P., Columbia, South Carolina, for Appellees Williamsburg Regional Hospital and John Hales; Marian Williams Scalise, Lydia L. Magee, Richardson, Plowden & Robinson, Myrtle Beach, South Carolina, for Appellees Breton Juberg, MD, Evelyn Ansa, MD, Joel Bonaparte, MD, Bernadette Bonaparte, MD, Kenneth Johnson, MD, Steve Corey, DPM, Michelle Corey-Butterworth, DPM, Kevin Springle, MD, and Gilbertas Rimkus, MD.

Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge DUNCAN and Judge AGEE joined.


WILKINSON, Circuit Judge:

In this case, a physician brings multiple state law and federal due process claims against a hospital and its officials for suspending his staff privileges based on allegations that he had sexually abused his adopted daughter. While the scope of immunity under the Health Care Quality Improvement Act, 42 U.S.C. § 11101 et seq. , certainly has limits, we think the immunity attaches to defendants under the circumstances here, and plaintiff's state law claims fail in any event. We also reject plaintiff's claims that the hospital's suspension of his privileges violates the Due Process Clause, both because the decision to suspend plaintiff's privileges was not state action and because the procedures afforded plaintiff satisfied the Fourteenth Amendment. For these reasons, we affirm the district court's grant of summary judgment to defendants.


Plaintiff is a general surgeon who treats both children and adults in the course of his practice. He formerly held privileges at Williamsburg Regional Hospital

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(" WRH" ) in Kingstree, South Carolina. WRH serves a population of fewer than 40,000 people and was previously the Williamsburg County Memorial Hospital. Since October 2001, it has operated as a private non-profit corporation, but the state continues to be involved: the Governor approves the Board of Directors and the state and county provide funding. While practicing at WRH, plaintiff raised numerous complaints about patient care at the hospital, including fatal mistakes in medication dosages and the mishandling of human tissue specimens. He alleges that WRH officers threatened him for voicing these complaints and took the following actions in retaliation.

At some point after the alleged threats, South Carolina Department of Social Services (" DSS" ) took plaintiff's three adopted children into emergency protective custody because of allegations that plaintiff's wife had physically abused the children. DSS filed a complaint against plaintiff and his wife in Family Court and placed the children in foster care. While in foster care, plaintiff's adopted daughter told her therapist that she had been sexually abused by plaintiff and his wife. In 2003, two DSS units each investigated the sexual abuse allegations, but found the evidence to be inconclusive and declined to investigate further. Then, in 2004, Clarendon County DSS conducted a third investigation and, after finding by a preponderance of evidence that plaintiff and his wife had sexually abused the child, filed a Family Court complaint seeking to terminate plaintiff's and his wife's parental rights and place them on the Central Registry of Child Abuse and Neglect.

Soon after DSS filed the complaint, defendant Dr. Breton C. Juberg, the WRH Chief of Staff and Chairman of the Medical Executive Committee (" MEC" ), became aware of the DSS sexual abuse allegations against plaintiff. He informed defendant John C. Hales, Jr., the Chief Executive Officer of WRH, of the allegations, and Hales obtained a copy of the complaint and other documents from the clerk of the Family Court. The complaint detailed statements the child made to her DSS caseworker, therapist, foster parents, and forensic interviewer about the sexual abuse, and also recounted the prior physical abuse case that had resulted in a finding of Abuse and Neglect against plaintiff and his wife. After reviewing these documents, Hales and Juberg agreed to summarily suspend plaintiff's hospital privileges until the DSS sexual abuse allegations were resolved.

In a letter dated September 13, 2004, Juberg notified plaintiff that his privileges were summarily suspended pursuant to the hospital's Medical Staff Bylaws provisions for corrective action. Juberg explained that " [b]ased upon serious allegations of sexual misconduct of a minor child ... the Medical Staff and [WRH] believe that the best interest of patient care and welfare is served by an immediate summary suspension of your clinical staff privileges." Juberg also notified plaintiff that the MEC would review his summary suspension that evening and invited him to present his case, although he would not be allowed to vote on the matter.

At the meeting, the MEC considered several documents from plaintiff's DSS file including the sexual abuse complaint, the DSS probable cause finding, the child's forensic interview report, progress notes from her therapy sessions, drawings by the child, and a Family Court order which included information about the prior physical abuse case. Plaintiff attended the meeting and presented argument, but the MEC ultimately voted to continue his suspension.

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Two days later, Hales sent a letter to plaintiff confirming that the MEC had voted to continue his suspension and informing plaintiff of his right to have the decision reviewed in a hearing with representation by counsel pursuant to Article VIII of the hospital's bylaws. The next day, WRH submitted a report to the National Practitioner Data Bank (" NPDB" ), as it believed was required by 42 U.S.C. § 11133,1 stating that plaintiff's clinical privileges had been summarily suspended indefinitely because of " serious allegations of sexual misconduct of a minor child."

Plaintiff requested a review hearing which was held on November 22, 2004. Prior to the hearing, WRH provided plaintiff a list of witnesses expected to testify and a list of Hearing Panel members who were not his economic competitors. To accommodate plaintiff's objection, WRH removed one doctor from the panel who had previously treated plaintiff's children. Plaintiff's counsel was then notified of the final panel composition by letter and given an opportunity to object, but plaintiff did not object before the hearing.

At the hearing, Juberg and plaintiff's counsel presented argument. Both sides called witnesses, cross-examined witnesses, and presented documents for the panel to consider. Plaintiff and his wife testified that they did not sexually abuse their daughter and presented evidence including the result of a neuropsychiatric test indicating that plaintiff failed to meet the diagnostic criteria for pedophilia, a prior DSS notice that a sexual abuse investigation was unfounded, and a forensic examination that did not prove sexual abuse. But, during the two additional months the hearing was held open, plaintiff was not able to come forward with evidence the panel considered adequate to dispel its concerns. Ultimately, the panel issued a report upholding the MEC's decision to continue plaintiff's summary suspension.

Plaintiff appealed the panel's decision to WRH's Board of Directors at a full-blown hearing on April 11, 2005. A week later, after receiving additional evidence, the four board members present voted unanimously to uphold the suspension. This marked the end of the review process.

A few months later, on July 7, 2005, DSS filed a motion for voluntary nonsuit with prejudice in the sexual abuse case against plaintiff on the grounds that it would not be in the child's best interests to continue the case. DSS argued that it would be traumatic for the child to testify and the suit would not benefit the child because plaintiff's parental rights had already been terminated pursuant to an agreement of the parties in the physical abuse case. The Family Court entered an order granting DSS's motion for nonsuit on July 11, 2005.

A month later, plaintiff sent a letter to WRH requesting that his clinical privileges be immediately reinstated because DSS had dismissed the sexual abuse suit and no one had ever filed criminal charges against him. WRH did not reinstate plaintiff, however, because he would not authorize the hospital where he had been practicing during his suspension to provide the necessary credentialing information that WRH needed to reinstate him in accordance with the bylaws. Plaintiff had also requested

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that WRH void its NPDB report and asserts that he has not been able to accept employment with other health care providers because of the report.

On October 14, 2005, plaintiff filed this suit. He claims that WRH, Hales, Juberg, and other WRH staff members are liable in damages because WRH's suspension of his privileges violated various state laws and 42...

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