Wahi v. Charleston Area Medical Center, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

RAKESH WAHI, 
Plaintiff-Appellant,
v.
CHARLESTON AREA MEDICAL
CENTER, INCORPORATED, a West
Virginia Corporation; GLENN
CROTTY; JOHN DOES I-X,
Defendants-Appellees,
and
 No. 06-2162
JANE DOES I-X; JAMAL KAHN; H.
RASHID; K. C. LEE; ANDREW
VAUGHN; JOHN L. CHAPMAN,
Defendants.

ASSOCIATION OF AMERICAN
PHYSICIANS AND SURGEONS,
INCORPORATED,
Amicus Supporting Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Joseph R. Goodwin, Chief District Judge.
(2:04-cv-00019)

Argued: December 2, 2008

Decided: April 10, 2009
2 WAHI v. CHARLESTON AREA MEDICAL CENTER
Before GREGORY and AGEE, Circuit Judges, and Rebecca
Beach SMITH, United States District Judge for the Eastern
District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Agee wrote the opin-
ion, in which Judge Gregory and Judge Smith joined.

COUNSEL

ARGUED: Kenneth Winston Starr, PEPPERDINE UNIVER-
SITY SCHOOL OF LAW, Malibu, California, for Appellant.
Richard D. Jones, FLAHERTY, SENSABAUGH &
BONASSO, P.L.L.C., Charleston, West Virginia, for Appel-
lees. ON BRIEF: John C. Yoder, Harpers Ferry, West Vir-
ginia, for Appellant. David S. Givens, FLAHERTY,
SENSABAUGH & BONASSO, P.L.L.C., Wheeling, West
Virginia, for Appellees. Andrew L. Schlafly, Far Hills, New
Jersey, for Amicus Supporting Appellant.

OPINION

AGEE, Circuit Judge:

Rakesh Wahi, M.D., appeals the district court’s judgment
dismissing his numerous state and federal claims brought
against Charleston Area Medical Center, Inc. ("CAMC")
regarding the suspension of his medical privileges. The dis-
trict court concluded most of Wahi’s claims were barred
because CAMC qualified for immunity from suit under the
Health Care Quality Improvement Act ("HCQIA" or "the
Act"), 42 U.S.C.A. § 11101, et seq. (West 2005). For this rea-
son, and because the district court found Wahi’s other claims
failed on the merits, the court awarded CAMC and Dr. Glenn
 WAHI v. CHARLESTON AREA MEDICAL CENTER 3
Crotty1 summary judgment. For the reasons set forth below,
we affirm the judgment of the district court.

I.

CAMC is a privately-run hospital operating in Charleston,
West Virginia. Wahi, who is licensed to practice medicine in
West Virginia, began working as a cardio-thoracic surgeon at
CAMC in January 1993. (J.A. 98.) The following year, Wahi
started his own practice, but retained clinical privileges at
CAMC. Around the same time, he began discussions with a
Beckley, West Virginia medical group about the possibility of
associating with them. In November 1996, CAMC temporar-
ily suspended Wahi’s hospital privileges and, as required by
statute, it notified the National Practitioner’s Data Bank
("NPDB"),2 of Wahi’s suspension. CAMC later reinstated
Wahi’s clinical privileges on a provisional basis.3 (J.A. 49;
294; 511-16.) Following Wahi’s reinstatement, CAMC
received reports of and investigated several allegations that
Wahi violated the terms of his provisional clinical privileges,
which again resulted in temporary suspensions of Wahi’s
privileges in 1998 and 1999. From 1996 to 1999, CAMC, as
required by statute, reported Wahi to the NPDB a total of five
1
Dr. Crotty served as Executive Vice President and Chief Medical Offi-
cer at CAMC during the relevant period of Wahi’s employment; he is now
the Chief Operating Officer at CAMC. (J.A. 70, 117.)
2
The NPDB is a national clearinghouse designed to prevent incompetent
doctors from simply moving to a new state that could not discover their
prior poor performance. Under the HCQIA, hospitals are generally
required to report to the NPDB adverse professional review action "affec-
t[ing] the clinical privileges of a physician." See 42 U.S.C.A.
§ 11133(a)(1)(A) (West 2005).
3
Wahi’s status and privileges changed in subsequent periods, but at all
relevant times, he only possessed provisional privileges at CAMC and he
was subject to numerous restrictions, such as being required to get another
doctor’s approval before performing certain procedures and to have a
proctor present during other procedures. Wahi was also barred from per-
forming some procedures entirely. (J.A. 516-33, 655.)
4 WAHI v. CHARLESTON AREA MEDICAL CENTER
times, although the exact nature of each of the reports before
1999 is not in the record. These prior suspensions and investi-
gations are not at issue in this appeal.4 (J.A. 50, 517-71.)

At the time of the events in question, Wahi was exercising
provisional privileges at CAMC, and had requested reappoint-
ment for "an additional year ending February 26, 2000."5 (J.A.
532-33, 572.) In May 1999, the CAMC Credentials Committee6
("Credentials Committee") recommended that Wahi’s request
be granted, but that his privileges remain restricted "as cur-
rently in place with intensified review as outlined in the Medi-
cal Staff Procedures Manual."7 (J.A. 532.)

By letter dated July 8, 1999, the Credentials Committee
notified CAMC’s Chief of Staff, [REDACTED], that it was
rescinding its earlier recommendation to renew Wahi’s provi-
sional clinical privileges.8 This decision was made after
4
CAMC also filed several reports regarding Wahi’s professional con-
duct with the West Virginia Board of Medicine.
5
Under CAMC policy, an application for reappointment automatically
extends the current appointment period until the request is acted on. (J.A.
477; Procedures Manual 2.1.1.1.) Wahi’s application thus extended his
previous year’s appointment until final disposition of his application for
reappointment.
6
The Credentials Committee is composed of "one representative from
each of [CAMC’s] Medical Staff Departments" and two non-physician
non-voting members of the Board. It is charged with investigating the
"character, professional competence, qualifications and ethical standing
of" CAMC physicians who have "completed applications for appointment
or reappointment to the medical Staff," as well as requests for changes in
privileges. The Credentials Committee then makes a recommendation to
the Board on all such matters. (Bylaws 8.3.1, 8.3.2.1.) (J.A. 464.)
7
Three documents set forth the rights and responsibilities between
CAMC and its medical staff: the Medical Staff Procedures Manual
("Procedures Manual"), Medical Staff Bylaws ("Bylaws"), and Medical
Staff Rules & Regulations.
8
The district court incorrectly identified this letter as one addressed
directly to Wahi. There is no indication in the record that Wahi received
a copy of this letter or was made aware of the Credentials Committee’s
recommendation at that time.
 WAHI v. CHARLESTON AREA MEDICAL CENTER 5
receiving information that Wahi performed a [REDACTED],
which he was not permitted to do under the terms of his provi-
sional clinical privileges. The Credentials Committee had also
been apprised that Wahi failed to notify CAMC, as required
by the by-laws, that he had voluntarily relinquished his clini-
cal privileges at another hospital. The Credentials Committee
requested "an investigation and appropriate suspension of Dr.
Wahi’s clinical privileges" in light of this new information of
Wahi’s continued failure to comply with the terms of his pro-
visional clinical privileges. The Credentials Committee
informed [REDACTED] that its recommendation had not
been communicated to the CAMC Board of Trustees, and that
Wahi would be given the opportunity to meet with them
"prior to any final recommendation." (J.A. 572-73.)

By letter dated July 16, 1999, [REDACTED] informed
Wahi that he had been requested to investigate the two claims
raised in the Credentials Committee’s letter. [REDACTED]
asked Wahi to "respond to each of the [allegations] in writing
as soon as possible." Attached to the letter were the relevant
portions of the Bylaws pertaining to the alleged violations.
(J.A. 115, 575-76.)

Between July 16 and July 30, in addition to meeting with
[REDACTED] to discuss the July 16 letter requesting addi-
tional information from Wahi, Wahi wrote to [REDACTED],
[REDACTED], and the Chairman of the Credentials Com-
mittee in order to provide an explanation of the events sur-
rounding the allegations against him. The Credentials
Committee scheduled a meeting with Wahi for August 3,
1999 to review his performance and consider his application,
which was later rescheduled for August 17, 1999, at Wahi’s
request. (J.A. 742.)

On July 30, 1999, [REDACTED] summarily suspended
Wahi’s hospital privileges at CAMC. (J.A. 50.) By letter on
the same date, CAMC formally notified Wahi that his "clini-
cal privileges [were] hereby summarily suspended pursuant to
6 WAHI v. CHARLESTON AREA MEDICAL CENTER
Section 2.4.1, Grounds for Summary Suspension of the Proce-
dures Manual, ‘for the best interest of patient care.’" (J.A.
117.) His suspension was to "continue until resolution of
[Wahi’s] request for reappointment and any appeal/hearing, if
requested, has been completed." (J.A. 117.) A copy of Article
III of the Procedures Manual was attached to the letter, and
Wahi was informed that he "may wish to avail [himself] of
any rights available to [him] under Article III." (J.A. 117,
586.)

From the time of his suspension through the Credentials
Committee meeting, Wahi engaged in ongoing correspon-
dence and discussions with CAMC regarding preparation for
that meeting and his application to renew clinical privileges.
(See, e.g., J.A. 118-30, 654.) On August 17, 1999, the Cre-
dentials Committee met and Wahi testified, providing his
response to the allegations against him. The Credentials Com-
mittee recommended denying Wahi’s application for reap-
pointment in a detailed August 26, 1999 letter. (J.A. 644-46.)
By a separate letter, also dated August 26, 1999, CAMC
informed Wahi of the denial of his request for reappointment
of his clinical privileges and of his right to a hearing regard-
ing this decision under Article III of the Procedures Manual.
(J.A. 644-47.)

On September 8, 1999, Wahi, by counsel, requested a hear-
ing regarding both his suspension and the decision not to
renew his clinical privileges. On September 13, 1999, CAMC
reported Wahi’s summary suspension to the NPDB, (J.A.
962.), and to the West Virginia Board of Medicine. (J.A. 701.)

Correspondence during the next several months indicates
on-going discussions between Wahi and CAMC regarding
Wahi’s access to his medical affairs/quality assurance file, his
dislike of the composition of the hearing panel, and other
aspects of the conduct of a hearing. CAMC repeatedly asked
Wahi to provide "a series of convenient dates . . . for the
scheduling of" the requested hearing. (J.A. 762-63, 776.)
 WAHI v. CHARLESTON AREA MEDICAL CENTER 7
Wahi has never provided CAMC with any dates on which he
would be available for a hearing, and a hearing date was never
set. (J.A. 760.)

In November 2000, Wahi filed a complaint in West Vir-
ginia state court requesting that the court intervene in the
CAMC peer review process, declare certain of CAMC’s
actions invalid, require CAMC to withdraw its reports to the
NPDB and state Board of Medicine, and require a court-
administered hearing that satisfied Wahi’s various demands.
(J.A. 99-114.) The West Virginia court ultimately dismissed
the action on December 6, 2001, after concluding that Wahi
was not entitled to the relief he sought because the peer
review process was still ongoing. It declined to "render advi-
sory opinions" or accept Wahi’s "speculation" that he would
receive an unfair hearing. (J.A. 143, 131-46.)

For a while, discussions between Wahi and CAMC contin-
ued after the state court case ended, with both parties setting
forth various parameters and details of the conduct of a hear-
ing. Then discussions halted,9 with the parties never reaching
an agreement or conducting or scheduling a hearing. In Janu-
ary 2004, Wahi filed a complaint in the United States District
Court for the Southern District of West Virginia.

The complaint alleged numerous state and federal claims,
including Anti-Trust violations of the Sherman Act, against
CAMC and other defendants.10 (R. 3.) CAMC filed a motion
9
As a result of CAMC’s September 1999 report to the Board of Medi-
cine, the Board undertook an investigation into Wahi’s suspension and
ultimately filed a complaint against him in September 2001 to determine
whether disciplinary action should be taken regarding Wahi’s license to
practice medicine. After protracted proceedings, the Board of Medicine
ultimately dismissed the charges in November 2003 without reaching a
decision on the merits of the allegations. (J.A. 147-180, 254-55, 701.)
10
The claims against all but one of the other defendants, Dr. Crotty,
were subsequently dismissed from the suit, see R. 12 and 88, and are not
before us in this appeal.
8 WAHI v. CHARLESTON AREA MEDICAL CENTER
for summary judgment, which the district court construed as
a motion to dismiss pursuant to Rule 12(b)(6). (J.A. 48.) By
order dated October 27, 2004, the district court dismissed the
Sherman Act claims for failure to allege an effect on interstate
commerce, but granted Wahi leave to amend to remedy that
omission. (J.A. 59-61.) The district court also dismissed all
but one of Wahi’s § 1983 claims against CAMC, finding "ut-
terly without merit" Wahi’s assertion that CAMC acted
"under color of state law" because it reported him to the
NPDB. (J.A. 61-62.) Lastly, it dismissed Wahi’s state inva-
sion of privacy or wrongful disclosure claim, concluding that
"a plain reading of [the HCQIA] means that only the informa-
tion contained in a report to the [NPDB], and not the mere
fact that a report was made, is protected as confidential." (J.A.
63-64.)

Wahi then filed an amended complaint reiterating the
claims the district court had not dismissed in its October 2004
order, and amending the Sherman Act claims to include alle-
gations of an effect on interstate commerce. (J.A. 68-93.)
Wahi’s amended complaint alleged the following claims: (1)
Anti-Trust Conspiracy, in violation of the Sherman Act, 15
U.S.C. § 1 (2000); (2) Anti-Trust Monopolization, in violation
of the Sherman Act, 15 U.S.C.A. § 2 (West 1997 & Supp.
2008); (3) breach of contract and implied covenant of good
faith and fair dealing; (4) conspiracy to deny his constitutional
right to due process, in violation of 42 U.S.C.A. § 1983 (West
2005); (5) defamation; and (6) violation of his civil rights
under 42 U.S.C.A. § 1981 (West 2005).11 Wahi also sought a
declaration "that the reports made by [CAMC] to the NPDB
are invalid and contrary to law," the removal of CAMC’s "de-
rogatory reports concerning [Wahi] from the NPDB," the
reinstatement of Wahi’s hospital privileges, actual and puni-
tive damages, attorneys fees, and costs. (J.A. 92.) Wahi’s
overarching contention was that CAMC’s decisions to sus-
11
Additional claims were subsequently voluntarily dismissed and are not
at issue on appeal. (J.A. 12; R. 61.)
 WAHI v. CHARLESTON AREA MEDICAL CENTER 9
pend him and deny his application for reappointment were
taken in bad faith to prevent competition by monopolizing the
field of cardiac surgery in the region and to prevent him from
practicing medicine. (J.A. 68-92.)

By order dated September 29, 2006, the district court
granted motions by CAMC and Dr. Crotty for summary judg-
ment on all counts. Wahi v. Charleston Area Med. Ctr., 453
F. Supp. 2d 942 (S.D.W. Va. 2006). (J.A. 262-91.) The court
held that CAMC qualified for immunity under the HCQIA
from all of Wahi’s claims for damages. In so doing, it ana-
lyzed each of the four components that a professional review
action must possess in order to qualify for immunity, as set
forth in 42 U.S.C. § 11112(a), and concluded that CAMC ful-
filled each requirement. Id. at 948-55. (J.A. 266-79.) Regard-
ing the fact that CAMC never held a hearing regarding
Wahi’s suspension, the district court found

that the evidence offered by Dr. Wahi is insufficient
for a reasonable jury to find that CAMC failed to ful-
fill its obligations under § 11112(a)(3) by a prepon-
derance of the evidence. The overwhelming
evidence is that CAMC acted in an objectively rea-
sonable manner in light of the totality of the circum-
stances in this case and took sufficient measures to
ensure Dr. Wahi received adequate notice of any
hearing or meeting that was to occur in the proposed
actions against him. The many letters between the
parties illustrate the hospital’s attempts to set a hear-
ing at Dr. Wahi’s request and give him notice of the
hearing. Dr. Wahi was represented by counsel
throughout the process and in the end, he was
informed and fully aware of his rights, the hospital’s
policies, and the charges and evidence the hospital
had against him. The hospital responded promptly
when Dr. Wahi requested a hearing be scheduled.
10 WAHI v. CHARLESTON AREA MEDICAL CENTER
Id. at 954. (J.A. 278.) The district court concluded the HCQIA
immunity protected CAMC against Wahi’s claims for viola-
tions of the Sherman Act, breach of contract,12 and defama-
tion. Id. at 955. (J.A. 279.) Recognizing that the HCQIA does
not afford immunity from claims for injunctive relief, the dis-
trict court dismissed those claims based on its conclusion that
"Wahi fail[ed] to make any argument or allege any facts that
would entitle him to injunctive relief."13 Id. at 960. (J.A. 289-
90.). The district court recognized that the HCQIA does not
provide immunity from claims alleging civil rights violations,
but granted CAMC summary judgment on Wahi’s § 1983
conspiracy to deny due process claim because "Wahi [did] not
offer even a scintilla of evidence that there was communica-
tion between CAMC and the Board of Medicine beyond that
required by law." Id. (J.A. 288-89.) Accordingly, the district
court awarded summary judgment to CAMC and dismissed
Wahi’s case with prejudice. Id. (J.A. 291.)

Wahi noted a timely appeal, (J.A. 292-93), and we have
jurisdiction under 28 U.S.C.A. § 1291 (West 2006).

II.

On appeal, Wahi’s primary argument is that the district
12
The district court also provided an alternative basis for the granting of
summary judgment as to Wahi’s breach of contract claim: CAMC com-
plied with the procedures outlined in its Procedures Manual and those
required by federal law, and that CAMC’s Bylaws did not constitute a
contract under West Virginia law, so any violation of the Bylaws could
not constitute a breach of contract. Id. at 955-56. (J.A. 280-82.)
13
It also held that Wahi’s § 1981 claim was barred by the applicable
statute of limitations and also failed on the merits because Wahi had not
proven CAMC’s race-neutral reason for its actions were pretextual. Id. at
957-60. (J.A. 282-88.) Because Wahi does not challenge the district
court’s disposition of this claim, it is not before us on appeal. See Fed. R.
App. P. 28(a)(9)(A); see also 11126 Baltimore Boulevard, Inc. v. Prince
George’s County, 58 F.3d 988, 993 n.7 (4th Cir. 1995) (en banc) (involv-
ing predecessor to Federal Rule of Appellate Procedure 28(a)(9)(A)).
 WAHI v. CHARLESTON AREA MEDICAL CENTER 11
court erred in holding that CAMC14 was entitled to immunity
under the HCQIA even though CAMC summarily suspended
Wahi "without notice or a hearing." Wahi also contends that
the district court erred in dismissing his claims seeking
injunctive relief because the HCQIA only provides immunity
from suits for damages. In addition, Wahi challenges the dis-
trict court’s determination that CAMC was not a state actor
and therefore was not amenable to suit under 42 U.S.C.A.
§ 1983 (2005). Lastly, Wahi asserts the district court erred in
dismissing his state law defamation, breach of confidentiality,
and breach of contract claims. We address each argument
below.

A. HCQIA Immunity

Wahi asserts the district court erred in determining CAMC
was entitled to immunity under the HCQIA because CAMC
never held a hearing regarding Wahi’s suspension, and there-
fore did not satisfy the requirements for claiming immunity
under the Act. (Br. Appellant 18-30; Reply Br. 2-15.) How-
ever, we conclude the district court did not err in determining
CAMC was entitled to immunity under the particular facts of
this case.

The HCQIA provides a "professional review body"15 with
14
In his opening brief, Wahi states that he "is also appealing the dis-
missal of Dr. Crotty as a co-defendant," even though he refers to CAMC
as the "Appellant." (Br. Appellant 3.) The district court similarly analyzed
the claims against CAMC and Dr. Crotty together. We will invoke a simi-
lar convention, referring only to CAMC, but including Dr. Crotty in the
analysis for the claims Wahi brought against him.
15
"The term ‘professional review body’ means a health care entity and
the governing body or any committee of a health care entity which con-
ducts professional review activity, and includes any committee of the
medical staff of such an entity when assisting the governing body in a pro-
fessional review activity." 42 U.S.C.A. § 11151(11) (West 2005).
12 WAHI v. CHARLESTON AREA MEDICAL CENTER
immunity from damages whenever a "professional review
action"16 is taken:

(1) in the reasonable belief that the action was in the
furtherance of quality health care,

(2) after a reasonable effort to obtain the facts of the
matter,

(3) after adequate notice and hearing procedures are
afforded to the physician involved or after such other
procedures as are fair to the physician under the cir-
cumstances, and

(4) in the reasonable belief that the action was war-
ranted by the facts known after such reasonable
effort to obtain facts and after meeting the require-
ment of paragraph (3).

42 U.S.C.A. § 11112(a) (West 2005). "A professional review
action shall be presumed to have met the preceding standards
necessary for [immunity] unless the presumption is rebutted
by a preponderance of the evidence." Id.
16
A "professional review action" is:
an action or recommendation of a professional review body
which is taken or made in the conduct of professional review
activity, which is based on the competence or professional con-
duct of an individual physician (which conduct affects or could
affect adversely the health or welfare of a patient or patients), and
which affects (or may affect) adversely the clinical privileges, or
membership in a professional society, of the physician. Such term
includes a formal decision of a professional review body not to
take an action or make a recommendation described in the previ-
ous sentence and also includes professional review activities
relating to a professional review action.
42 U.S.C.A. § 11151(9) (West 2005).
 WAHI v. CHARLESTON AREA MEDICAL CENTER 13
Due to the presumption of immunity under the HCQIA, a
court applies an "unconventional standard in determining"
whether summary judgment is appropriate — "whether a rea-
sonable jury, viewing all facts in a light most favorable to
[Wahi], could conclude that he had shown, by a preponder-
ance of the evidence, that [CAMC’s] actions fell outside the
scope of section 11112(a)." Gabaldoni v. Washington County
Hosp. Ass’n, 250 F.3d 255, 260 (4th Cir. 2001). In determin-
ing whether a health care entity has met these four require-
ments, the Court applies an objective test that "looks to the
totality of the circumstances" to determine whether the action
satisfies the § 11112(a) provisions. Imperial v. Suburban
Hosp. Ass’n, 37 F.3d 1026, 1030 (4th Cir. 1994).

In a footnote in his opening brief, Wahi contends that even
though the "primary focus of this appeal is the failure of
CAMC to schedule a hearing," as required under subsection
3 of § 11112(a), the "first, second and fourth prongs of the
test [for immunity under the HCQIA] were also not met." (Br.
Appellant 29 n.11.) Other than this declarative sentence, Wahi
fails to raise any argument to support his claim that the first,
second, and fourth prongs of the subsection (a) immunity
criteria were not met.17 Federal Rule of Appellate Procedure
28(a)(9)(A) requires that the argument section of an appel-
lant’s opening brief must contain the "appellant’s contentions
and the reasons for them, with citations to the authorities and
parts of the record on which the appellant relies." Because
Wahi has failed to comply with the specific dictates of Rule
28(a)(9)(A), we conclude that he has waived his claims as to
the first, second, and fourth requirements of the subsection (a)
HCQIA immunity test on appeal. See 11126 Baltimore Boule-
vard, Inc., 58 F.3d at 993 n.7 (involving predecessor to Fed-
eral Rule of Appellate Procedure 28(a)(9)(A)). Accordingly,
our review regarding the immunity issue is limited to whether
the district court erred in determining that Wahi did not over-
17
Unless otherwise indicated, references to "subsection __" will refer to
subsections of 42 U.S.C. § 11112.
14 WAHI v. CHARLESTON AREA MEDICAL CENTER
come the presumption that CAMC satisfied the requirements
of subsection (a)(3).

A health care entity is "deemed to have met the adequate
notice and hearing requirement of" § 11112(a)(3) when it sat-
isfies the safe harbor provisions of § 11112(b). Wahi argues
that because CAMC failed to follow the provisions of subsec-
tion (b), it does not qualify for immunity under the HCQIA.
However, as the district court properly recognized, (J.A. 275),
following the provisions of subsection (b) is but one way a
health care entity can comply with the requirements of sub-
section (a)(3). While a health care entity is "deemed to have
met" the subsection (a)(3) immunity requirements by follow-
ing the safe harbor provisions of subsection (b), those provi-
sions are not exclusive. "[F]ailure to meet the conditions
described [in subsection (b)] shall not, in itself, constitute fail-
ure to meet the standards of subsection (a)(3)." § 11112(b)(3).
Therefore, Wahi’s argument that CAMC is not entitled to
immunity, as a matter of law, because it did not comply with
all of the provisions in subsection (b), fails under the plain
language of the statute.

Wahi next asserts that CAMC is not entitled to immunity
because it failed to satisfy the exceptions from immunity
carved out in § 11112(c). Wahi contends that since CAMC
summarily suspended him for more than 14 days without first
finding that he posed an imminent danger to his patients and
without conducting a post-suspension investigation, CAMC
cannot claim immunity under the HCQIA. Wahi misreads the
statute. Subsection (c) sets forth limited circumstances in
which a health care entity can act with immunity without sat-
isfying all of the conditions in subsection (a). Subsection (c)
provides in pertinent part:

For purposes of section 11111(a) of this title, noth-
ing in this section shall be construed as –

(1) requiring the procedures referred to in subsec-
tion (a)(3) of this section –
 WAHI v. CHARLESTON AREA MEDICAL CENTER 15
(A) where there is no adverse profes-
sional review action taken, or

(B) in the case of a suspension or restric-
tion of clinical privileges, for a period of
not longer than 14 days, during which an
investigation is being conducted to deter-
mine the need for a professional review
action; or

(2) precluding an immediate suspension or restric-
tion of clinical privileges, subject to subsequent
notice and hearing or other adequate procedures,
where the failure to take such an action may result
in an imminent danger to the health of any individ-
ual.

§ 11112(c).

Subsection (c) thus sets out distinct ways in which a health
care entity can be immune under the HCQIA without having
complied with the usual requirements for claiming immunity.
Wahi would have us read the statute by ignoring this clear
purpose and instead find that the HCQIA immunity is barred
by failing to meet one of the subsection (c) prongs. To the
contrary, subsection (c) presents additional routes to HCQIA
immunity beyond that set forth in subsection (a)(3). Although
Wahi may be correct that the facts show CAMC cannot assert
immunity based on (c)(1) or (c)(2), the only significance is
that CAMC must meet the usual standard of qualifying for
immunity set forth in subsection (a)(3).18

Under subsection (a)(3), a health care entity seeking
HCQIA immunity must act "after adequate notice and hearing
procedures are afforded to the physician involved or after
such other procedures as are fair to the physician under the
18
[REDACTED]
16 WAHI v. CHARLESTON AREA MEDICAL CENTER
circumstances." § 11112(a)(3) (emphasis added). Stated in the
disjunctive, the statute contemplates two independent avenues
by which the subsection (a) immunity prong may be obtained.
The first avenue, "adequate notice and hearing procedures," is
not at issue in the case at bar. CAMC makes no claim under
that prong and the district court did not consider it. What
CAMC argues, and the district court held, is that the unique
circumstances in this case show that Wahi received "other
procedures as are fair to the physician under the circum-
stances," and entitle CAMC to the HCQIA immunity.

Wahi cites the legislative history of subsection (a)(3) to
assert that the "other procedures" undertaken by a health care
entity must nonetheless include a hearing. In particular, Wahi
relies on this language from the 1986 House Report recom-
mending the adoption of the HCQIA:

The due process requirement [i.e., subsection (a)(3),]
can always be met by the procedures specified in
subsection (b). . . . If other procedures are followed,
but are not precisely of the character spelled out in
[subsection (b)], the test of "adequacy" may still be
met under other prevailing law. The Committee is
aware, for example, that some courts have already
carefully spelled out different requirements for cer-
tain professional review activities or actions, such as
procedures for decisions regarding applicants for
clinical privileges at a hospital. In those situations,
compliance with applicable law should satisfy the
"adequacy" requirement even where such activities
or actions require different or fewer due process
rights than the ones specified under [subsection (b)].
In any case, it is the Committee’s intent that physi-
cians receive fair and unbiased review to protect
their reputations and medical practices.

H.R. Rep. No. 99-903, at 10-11 (1986), as reprinted in 1986
U.S.C.C.A.N. 6384, 6393. Nothing in this legislative history
 WAHI v. CHARLESTON AREA MEDICAL CENTER 17
alters the conclusion that a health care entity can satisfy sub-
section (a)(3) without providing a formal hearing, as contem-
plated in the safe harbor provisions, depending on the
circumstances of a particular case. Rather, Congress’ intent —
and that expressed by the plain language of the statute — is
that a physician be afforded adequate and fair "procedures"
with regard to professional review actions, which could be
something other than a formal hearing in some circumstances.
If this were not so, Congress would have no reason to have
included the "other procedures appropriate . . . under the cir-
cumstances" language contained in the statute in contrast to
the specific "notice and hearing" language.

Wahi also contends that CAMC’s failure to follow some of
the procedures outlined in its Bylaws and Procedures Manual
proves CAMC did not satisfy subsection (a)(3) under the
alternative prong. However, as the Court of Appeals for the
Fifth Circuit recently observed,

HCQIA immunity is not coextensive with compli-
ance with an individual hospital’s bylaws. Rather,
the statute imposes a uniform set of national stan-
dards. Provided that a peer review action . . . com-
plies with those standards, a failure to comply with
hospital bylaws does not defeat a peer reviewer’s
right to HCQIA immunity from damages.

Poliner v. Tex. Health Sys., 537 F.3d 368, 380-81 (5th Cir.
2008); see also Meyers v. Columbia/HCA Healthcare Corp.,
341 F.3d 461, 469-71 (6th Cir. 2003). Nothing in the subsec-
tion (a)(3) phrase "such other procedures as are fair . . . under
the circumstances" mandates by-law compliance as the sine
qua non for immunity, although from a practical standpoint,
by-law compliance may often be proof of such procedures in
many cases.

Having concluded that CAMC was not required to hold a
formal hearing as a mandatory condition precedent to satisfy-
18 WAHI v. CHARLESTON AREA MEDICAL CENTER
ing subsection (a)(3), we now examine whether the district
court properly determined CAMC provided Wahi with "such
other procedures as are fair . . . under the circumstances." We
begin that review by underscoring the unique procedural pos-
ture upon which summary judgment for a health care entity is
measured under the HCQIA, as the district court properly
summarized:

In applying the test outlined in § 11112(a), we begin
with the presumption that the hospital has met the
necessary standards for immunity unless this pre-
sumption is rebutted by a preponderance of the evi-
dence. § 11112(a). The applicable standard is one of
objective reasonableness, viewed in light of the total-
ity of the circumstances. Freilich[ v. Upper Chesa-
peake Health, Inc., 313 F.3d 205,] 212 [(4th Cir.
2002)] (quoting Imperial v. Suburban [Hosp. Ass’n],
37 F.3d 1026, 1030 (4th Cir. 1994)). Reasonableness
standards have been consistently upheld in the con-
text of qualified immunity. Freilich, 313 F.3d at 213.

Wahi, 453 F. Supp. 2d at 950. (J.A. 270.) We find no error in
the district court’s determination that Wahi failed to rebut the
presumption that CAMC’s actions satisfied the statutory
requirement when the totality of the circumstances are viewed
in an objectively reasonable manner.

[REDACTED] informed Wahi of the allegations from the
Credentials Committee by letter dated July 16 and further dis-
cussed them in a meeting with him on July 17. (J.A. 575-77.)
Moreover, Wahi apparently learned of the unauthorized sur-
gery allegation against him even prior to [REDACTED]’s
letter because on July 15, he wrote to [REDACTED] stating
he understood questions had arisen regarding his decision to
perform the procedure, explaining his decision to perform the
contested procedure, and setting forth why he believed it fell
within his clinical privileges. (J.A. 721-28.) Although
[REDACTED]’s July 16 letter does not mention a possible
 WAHI v. CHARLESTON AREA MEDICAL CENTER 19
suspension, it does state that CAMC would be investigating
the claims that Wahi had again exceeded his authority under
his provisional privileges and not complied with the CAMC
Bylaws when he failed to notify CAMC that he had relin-
quished his privileges at another hospital. Wahi had previ-
ously been suspended at least three times for violation of his
privileges and was not unaware of the consequences.

[REDACTED] also informed Wahi that he should respond
in writing as soon as possible and address his reappointment
before the Credentials Committee at the August 3, 1999 hear-
ing, (J.A. 576), which was rescheduled for August 17 at
Wahi’s request. Over the next two weeks, Wahi wrote to
[REDACTED] and [REDACTED] several times, addressing
the charges in writing, and providing documents supporting
his position that he had not violated the conditions of his clin-
ical privileges. He also requested access to certain records
prior to or during the Credentials Committee meeting. (J.A.
730, 731, 732-41, and 742.) The record shows that CAMC
provided Wahi with notice of the most recent allegations
against him, and an opportunity to respond to those allega-
tions. CAMC complied with its Procedures Manual in this
regard.

CAMC suspended Wahi’s medical privileges by a letter
dated July 30, 1999 from [REDACTED], which recited the
"best interests of patient care" as the reason for the action.
(J.A. 586.) However, the record does not support Wahi’s con-
tention that CAMC did not inform him more specifically of
the reasons for his suspension. On July 30, [REDACTED]
and [REDACTED] met with Wahi to inform him of the sus-
pension pending the Credentials Committee’s review of his
application for reappointment. [REDACTED]’s memoran-
dum of that meeting recites that they informed Wahi that the
Credentials Committee and Board of Trustees both recom-
mended he be suspended. [REDACTED] cited Wahi’s "in-
ability to follow procedural guidelines outlined by the
Committee and the Board of Trustees which ensures adequate
20 WAHI v. CHARLESTON AREA MEDICAL CENTER
care and safety of patients," and also told Wahi that when he
met with the Credentials Committee, he should "be prepared
to defend his lack of adherence to the limitations on his privi-
leges as well as his absence of notification of suspension from
St. Francis [Hospital]."19 (J.A. 965.) The suspension letter reit-
erated the rights due Wahi under Article III of the Procedures
Manual for a hearing to challenge that action, and attached a
copy for his use.

The Credentials Committee then afforded Wahi, by letter of
August 13, 1999, the opportunity to review the file for the
August 17 meeting for the "timeline of events surrounding
[his] privileges" at CAMC. The letter also emphasized to
Wahi that

This meeting is your opportunity to present the Com-
mittee with additional information that is pertinent to
its evaluation of your ethical behavior, clinical com-
petence and clinical judgment in the treatment of
patients; compliance with Hospital policies and the
Medical Staff Bylaws and Rules and Regulations;
behavior in the hospital, your cooperation with medi-
cal and Hospital personnel as it relates to patient care
or the orderly operation of hospital, and your general
attitude toward patients, the Hospital and its person-
nel; use of the Hospital facilities for your patients;
your physical and mental health; your capacity to
satisfactorily treat patients as indicated by the results
of the Hospital’s quality assessment activities or
other reasonable indicators of continuing qualifica-
tions; your satisfactory completion of such continu-
ing education requirements as may be imposed by
law, the Hospital or applicable accreditation agen-
19
[REDACTED] and [REDACTED] also agreed that Wahi could con-
tinue treating two patients "currently in house" and that care of all of
Wahi’s patients would be transferred to another physician or discharged
by August 1, 1999. (J.A. 965.)
 WAHI v. CHARLESTON AREA MEDICAL CENTER 21
cies; and other relevant findings from CAMC’s and
the Medical Staff’s quality assurance activities.

(J.A. 752.) Copies of relevant portions of CAMC’s Proce-
dures Manual were attached to the letter. (J.A. 752-57.) A
separate letter informed Wahi how the meeting would be con-
ducted, and set out Wahi’s rights regarding the meeting. (J.A.
719-20.)

The Credentials Committee met on August 17, 1999. Wahi
appeared before it and presented his case. The Committee
concluded it "was unable to identify evidence that Dr. Wahi’s
clinical competence [and] professional judgment . . . are suffi-
cient to recommend . . . that he be reappointed to the Medical
Staff."20 (J.A. 645-46.) In particular, the Committee cited the
following

• Failure to comply with and repeated violation of
clinical privileges (§ 3.7 of the Bylaws), includ-
ing:

° Failure to obtain a proctor when
required to do so;

° Failure to obtain a second opinion when
required to do so;

° Performance of an operative procedure
for which he did not have privileges.

• Marginal indications for operative procedures;

• Poor decision-making in the care of some
patients;
20
Denial of reappointment is a NPDB-reportable event. See 42 U.S.C.
§ 11133(a) (requiring health care entities to report "professional review
action[s] that adversely affect[ ] the clinical privileges of a physician for
a period longer than 30 days").
22 WAHI v. CHARLESTON AREA MEDICAL CENTER
• Multiple incident reports surrounding bizarre pro-
fessional behavior and inappropriate personal
behavior among nursing staff;

• Failure to comply with responsibilities set forth
in the CAMC Bylaws, including providing proper
quality of care (§ 3.2), maintaining proper medi-
cal records (§ 3.3), and notifying CAMC of the
loss of clinical privileges at any other hospital
(§ 3.6); and

• Failure to keep a current, complete, and timely
record of patient care (§§ 2.1 and 2.7 of the Med-
ical Staff Rules and Regulations) (J.A. 550, 552-
53).

(J.A. 645.)

On August 26, 1999, Wahi received the Credentials Com-
mittee report and was once again notified of the rights pro-
vided in Article III and that he had 30 days to request a hearing.21
(J.A. 647.) The letter also informed Wahi his suspension
remained in effect until the CAMC Board of Trustees acted
on his reappointment. (J.A. 647.) On September 8, 1999,
Wahi, by counsel, timely requested a hearing as well as a wit-
ness list and a number of specified documents. (J.A. 648-53.)

On October 18, 1999, CAMC notified Wahi of the mem-
bers of the hearing panel and asked Wahi to "work with the
presiding officer to schedule and conduct the hearing in
accordance with . . . Article III," and again forwarded Wahi
the Procedures Manual.22 (J.A. 654-55, 699-700.) CAMC did
21
Article III of the Procedures Manual set forth Wahi’s right to a hear-
ing based on both the summary suspension and the Credentials Commit-
tee’s recommendation to deny Wahi’s application for reappointment. (See
Procedures Manual 2.3.4.2, 2.4.3, 3.1; J.A. 484-87.)
22
The Procedures Manual stated that once a hearing is requested, the
President of CAMC "shall schedule the hearing and shall give notice of
its time, place and date . . . to the person who requested the hearing. The
hearing shall begin as soon as practicable, considering the schedules and
availability of all concerned, provided that [it] shall not begin without at
least thirty days notice." (Procedures Manual 3.6; J.A. 489.)
 WAHI v. CHARLESTON AREA MEDICAL CENTER 23
not give Wahi a specific witness list,23 but afforded his coun-
sel access to some of the files requested in the September 8,
1999 letter. CAMC repeatedly requested that Wahi provide
available dates for his hearing because "the hearing will take
a number of days" and it was important to "select dates well
enough in advance that all involved parties can clear their
schedules." (J.A. 776.) In over 8 years since his request for a
hearing, Wahi has yet to provide CAMC with any dates when
he would be available for a hearing.

During the following year, the parties negotiated over how
the hearing would be conducted. Wahi objected to the compo-
sition of the panel, its presiding officer,24 and the use of any
incident or discipline during his medical practice at CAMC
that he did not address at the August 17, 1999 Credentials
Committee meeting. And while CAMC had opened many of
its files to Wahi and his counsel, some items Wahi had
requested had not been disclosed due to privacy disagree-
ments, which had not been resolved. The parties also
attempted to negotiate a resolution of the matter, including
withdrawing Wahi’s suspension based on a written statement
of the basis for CAMC’s actions. However, the parties were
unable to reach an agreement. (J.A. 760-83, 118-30.)

On November 30, 2000, Wahi filed an action in the West
Virginia state court to enjoin his requested hearing unless
CAMC met his pre-conditions. Wahi asked the state court to
order, inter alia, that his method of selection for the hearing
23
Section 3.7 of the Procedures Manual states that CAMC should have
provided a list of witnesses to Wahi "within ten days" of his request, and
that the witness list could be supplemented or amended in the discretion
of the presiding officer of the hearing, provided that notice of the change
has been given. (J.A. 489.)
24
The Procedures Manual provides that the President of CAMC "shall
appoint a panel of not less than three members, none of whom are in direct
competition with the individual who requested the hearing," after consid-
ering the recommendations of the Chief of Staff and the Chairman of the
Board." (Procedures Manual 3.8; J.A. 489.)
24 WAHI v. CHARLESTON AREA MEDICAL CENTER
panel be used, that no matters of Wahi’s medical practice at
CAMC be considered at the hearing except those mentioned
in [REDACTED]’s July 30, 1999 letter, and that the court
maintain "jurisdiction over the administrative hearing." (J.A.
99, 112, 99-114.)

The state court rejected Wahi’s arguments and dismissed
the complaint, stating Wahi’s arguments were speculative and
"[i]t would be premature for the Court to make any determi-
nation as to whether or not the notice given to Dr. Wahi satis-
fies the ‘fair procedures’ requirement." (J.A. 141.)
Furthermore, the court noted that the composition of the hear-
ing panel was in conformity with CAMC’s Procedures Man-
ual, and that any objections about the hearing panel or the
evidence to be considered should be raised before the hearing
panel. The court entered its final order of dismissal on
December 6, 2001.

In the meantime, the West Virginia Board of Medicine filed
a complaint against Wahi on September 10, 2001, and set a
hearing "to determine whether disciplinary action should be
taken . . . against Dr. Wahi’s license to practice medicine."
(J.A. 149.) Wahi and the Board of Medicine engaged in pro-
tracted litigation, which included Wahi’s unsuccessful attempt
to halt the proceedings by seeking a writ of prohibition
against the Board of Medicine from the Supreme Court of
Appeals of West Virginia. On November 10, 2003, the pro-
ceedings were dismissed, without a final disposition on the
merits of the allegations. (J.A. 147-175, 701.) Wahi made no
effort during this time period to pursue a hearing at CAMC.
While CAMC argues this was a deliberate choice by Wahi to
prevent a hearing that would create a record that could affect
the Board of Medicine proceedings, the district court made no
finding in that regard, CAMC assigns no error to the lack of
a finding, and we therefore do not consider it. The next action
in time was the filing of Wahi’s complaint in the district
court.
 WAHI v. CHARLESTON AREA MEDICAL CENTER 25
Lastly, in considering whether the procedures provided by
the health care entity are fair "under the circumstances," the
July 1999 allegations against Wahi cannot be considered in a
vacuum. These allegations were simply the latest in Wahi’s
tumultuous history with CAMC, as the August 26, 1999 Cre-
dentials Committee letter set forth. Since his reappointment in
1995, Wahi had been the subject of numerous reports and
complaints calling his professional competence and conduct
into question. The record shows that these complaints arose
from a multitude of discrete incidents, were made by different
individuals, and were known to Wahi. After all Wahi had
been through the suspension process previously at CAMC,
including the prior reports to the NPDB. CAMC investigated
and imposed restrictions, including temporary suspensions, as
a result of those investigations. Wahi was aware of the conse-
quences for failing to abide by the Bylaws and Procedures
Manual. He was not a first-time offender who was unfamiliar
with the responsibilities of his position at CAMC or the con-
sequences for his failures in July 1999. (J.A. 130-31, 248-53,
339-97, 496-571.)

While CAMC’s path to immunity in this case is not a rec-
ommended model, it must be evaluated considering all the
events which transpired, not just those Wahi views as favor-
able to him. Had CAMC simply set a prompt hearing, what-
ever Wahi’s objections and efforts to stop it, CAMC may
have been within its rights to do so and may have met the first
prong of subsection (a)(3). Similarly, CAMC should have fol-
lowed its Bylaws and the Procedures Manual, and provided
Wahi a witness list, even if it had to be later supplemented.
However, these failures by CAMC, when viewed in the total-
ity of the circumstances against a measuring stick of objective
reasonableness, do not show Wahi met his burden of proof to
rebut the presumption of immunity under the HCQIA. Wahi
was on notice of the many charges against him, including the
detailed Credentials Committee report of August 26, 1999. He
was repeatedly notified of his rights and given multiple copies
of documents explaining these rights. He was repeatedly
26 WAHI v. CHARLESTON AREA MEDICAL CENTER
asked for dates for a hearing. While CAMC attempted to
accord Wahi a hearing in conformity with the Procedures
Manual, Wahi seemed more intent on forestalling a hearing
than having one.

Had Wahi proceeded to a hearing, any complaint about the
inadequacy of notice, defective witness list or discovery, the
composition of the hearing panel, the conduct of the hearing,
or other relevant issues could have been addressed and sub-
jected to judicial review. In the face of Wahi’s recalcitrance,
it is at the least disingenuous to now claim his right to a hear-
ing was infringed when he has done all he could do not to
have a hearing. Viewing the totality of these circumstances in
an objectively reasonable manner, we cannot conclude that
the district court erred in determining Wahi failed to rebut the
presumption that CAMC afforded him "other procedures as
are fair to the physician under the circumstances." We there-
fore affirm the district court’s holding that CAMC is entitled
to immunity under the HCQIA.

B. Injunctive Relief

Wahi also contends the district court erred in awarding
summary judgment25 as to his claims for injunctive relief
because "[a]lthough the HCQIA immunize[d] [CAMC and
Dr. Crotty] from claims for monetary damages, that statutory
immunity does not apply to injunctive relief." (Br. Appellant
25.) He asserts he has satisfied the requirements for obtaining
an injunction requiring CAMC to provide him a hearing and
25
We review the district court’s grant of summary judgment on this
issue de novo. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d
277, 283 (4th Cir. 2004) (en banc). "Summary judgment is appropriate if
the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to a judgment
as a matter of law." Id. (internal quotation marks omitted). We construe
the evidence in the light most favorable to Wahi, the party opposing the
Appellees’ motion, and draw all reasonable inferences in his favor. See id.
 WAHI v. CHARLESTON AREA MEDICAL CENTER 27
remove his name from the NPDB list because he cannot
acquire gainful employment so long as his name is on the
NPDB list, monetary damages will not restore his ability to
practice, and the public possesses a strong interest in ensuring
hospitals abide by the law. (Br. Appellant 25-26; Reply Br.
17-20.)

The HCQIA only provides immunity from suits for dam-
ages. 42 U.S.C. § 11111(a)(1); see Imperial, 37 F.3d at 1030-
31. The district court expressly recognized this limitation, and
it did not base its decision that Wahi was not entitled to
injunctive relief on CAMC’s immunity under the HCQIA.
(J.A. 289-90.) Instead, it concluded Wahi "fail[ed] to make
any argument or allege any facts that would entitle him to
injunctive relief." Wahi, 453 F. Supp. 2d at 960. (J.A. 289-
90.)

The district court did not err in this determination. In order
to pursue injunctive relief to redress his Anti-Trust, breach of
contract, and defamation claims, Wahi must have a viable
claim that CAMC committed a wrong.

[A] remedy must be tailored to a violation [and] the
nature of the violation determines the scope of the
remedy. Remedies, in other words, do not exist in
the abstract; rather, they flow from and are the con-
sequence of some wrong. At its most basic, this prin-
ciple limits the reach of judicial decrees to parties
found liable for a legal violation.

See Bacon v. City of Richmond, 475 F.3d 633, 638 (4th Cir.
2007) (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1, 16 (1971)) (internal quotation marks and citations
omitted). Wahi has not made the requisite showing for any of
the claims for which the district court determined the HCQIA
immunity applied. The district court provided non-HCQIA-
based reasons for awarding CAMC summary judgment on
28 WAHI v. CHARLESTON AREA MEDICAL CENTER
Wahi’s breach of contract and defamation claims, which
Wahi has also appealed, and which we discuss below.

Lastly, even if Wahi succeeded on the merits of his Anti-
Trust claims, he would not be entitled to the injunctive relief
he sought in his amended complaint. Wahi’s amended com-
plaint asked for an injunction directing CAMC "to remove its
derogatory reports concerning Dr. Wahi from the NPDB" and
"to reinstate Dr. Wahi’s hospital privileges." (J.A. 92.) This
relief is not connected to any alleged acts of anti-competitive
behavior by CAMC.

C. State Actor

Wahi asserts the district court erred in determining CAMC
was not a state actor, as that term is contemplated under
§ 1983, and therefore not amenable to suit under that statute.26
(Br. Appellant 12-15; Reply Br. 21-22.) To state a claim
under § 1983, a plaintiff must aver that a person acting under
26
As noted, the district court dismissed all but one of Wahi’s § 1983
claims in its October 27, 2004 order granting CAMC’s motions under
Rule 12(b)(6). Therefore, we conduct a de novo review of the district
court’s decision, Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir
1993), accepting all allegations in Wahi’s complaint as true. Republican
Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). To survive a Rule
12(b)(6) motion, "[f]actual allegations must be enough to raise a right to
relief above the speculative level" and have "enough facts to state a claim
to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 127 S.
Ct. 1955, 1965, 1974 (2007). Moreover, the court "need not accept the
[plaintiff’s] legal conclusions drawn from the facts," nor need it "accept
as true unwarranted inferences, unreasonable conclusions, or arguments."
Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th Cir. 2006) (internal quo-
tation marks omitted).
Wahi challenges the district court’s determination that CAMC was not
itself a state actor, but he makes no argument related to the September 29,
2006 order dismissing his conspiracy-based § 1983 claim based on a fail-
ure to show any evidence that CAMC conspired with the state Board of
Medicine. Accordingly, our review is limited to the § 1983 claims dis-
missed in the district court’s October 2004 order.
 WAHI v. CHARLESTON AREA MEDICAL CENTER 29
color of state law deprived him of a constitutional right or a
right conferred by a law of the United States. See Dowe v.
Total Action Against Poverty, 145 F.3d 653, 658 (4th Cir.
1998). "Like the state-action requirement of the Fourteenth
Amendment, the under-color-of-state-law element of § 1983
excludes from its reach ‘merely private conduct, no matter
how discriminatory or wrongful.’" Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999). Consequently, "[t]he person
charged must either be a state actor or have a sufficiently
close relationship with state actors such that a court would
conclude that the non-state actor is engaged in the state’s
actions." DeBauche v. Trani, 191 F.3d 499, 506 (4th Cir.
1999). "[P]rivate activity will generally not be deemed ‘state
action’ unless the state has so dominated such activity as to
convert it to state action: ‘Mere approval of or acquiescence
in the initiatives of a private party’ is insufficient." Id. at 507;
see also Dowe, 145 F.3d at 659.

To support his argument, Wahi contends that by reporting
him to the NPDB, CAMC "essentially de-credentialed" him,
a power that is "reserved exclusively to state government" and
turns CAMC’s conduct into state action. (Br. Appellant 14,
12-15; Reply Br. 21-22.) We previously examined, and
rejected, a similar argument in Modaber v. Culpeper Memo-
rial Hospital, Inc., 674 F.2d 1023 (4th Cir. 1982). In that case,
we held that a hospital’s compliance with a Virginia statute
requiring the hospital to report the revocation of privileges did
not "authorize state officials to make privileges decisions, or
to set forth directions governing the outcome of such deci-
sions, or attach consequences to their results." Id. at 1027
(footnotes omitted). For these reasons, we held the Virginia
statute did not "involve the ‘exercise by a private entity of
powers traditionally exclusively reserved to the State.’" Id. at
1027 (quoting Jackson v. Metropolitan Edison Co., 419 U.S.
345, 352 (1974)); see also Freilich, 313 F.3d at 214 n.3 (hold-
ing private hospital was not a state actor because the state
played no role in the "actual decision as to whether or not to
terminate or reappoint any particular physician").
30 WAHI v. CHARLESTON AREA MEDICAL CENTER
Similarly, the federal statute requiring a hospital to report
credentialing decisions to the NPDB does not authorize state
officials to make any decisions regarding a physician’s hospi-
tal privileges, nor does it direct the hospital’s actions thereaf-
ter. Instead, it simply requires hospitals to report to the NPDB
adverse professional review action "affect[ing] the clinical
privileges of a physician." See 42 U.S.C.A. § 11133. Accord-
ingly, we find that the statute does not confer to CAMC pow-
ers traditionally reserved to the state, and it does not turn
CAMC’s actions into state action for a § 1983 claim.27

D. Defamation Claim

Wahi contends that the district court erred in awarding
summary judgment on his defamation claim.28 He specifically
argues on appeal that "Wahi was defamed when Dr. Crotty
intentionally disclosed to the local media that CAMC had
reported him to the NPDB." (Br. Appellant 34.) This argu-
ment, however, was not presented to the district court and
appears for the first time on appeal. Wahi’s amended com-
plaint states as the sole basis for his defamation claim that
CAMC’s "amended reports published by [CAMC] to the
NPDB on June 10, 2003, were false and defamatory, per se."
Wahi contends CAMC published the "defamatory reports to
the NPDB with reckless disregard for the truth" and therefore
"is liable to [Wahi] for defamation." (J.A. 88.) This is the
argument presented and ruled upon by the district court when
27
In addition, Wahi also cites CAMC’s "extensive programs and merger
with" West Virginia University (a public institution), CAMC’s status as
the "largest hospital," in the state, and a comment made in a CAMC Foun-
dation book characterizing CAMC as an "entirely public institution." (Br.
Appellant 12-15; Reply Br. 21-22.) These arguments were raised for the
first time on appeal and therefore we will not consider them. See Williams
v. Prof. Transp. Inc., 294 F.3d 607, 614 (4th Cir. 2002) (stating that issues
raised for the first time on appeal "are generally not considered absent
exceptional circumstances"). (Compare J.A. 28-30, with R. 24 pp. 13-14.)
28
We review this claim de novo, under the traditional principles set forth
supra, note 25.
 WAHI v. CHARLESTON AREA MEDICAL CENTER 31
determining whether HCQIA immunity barred Wahi from
pursuing the claim. (See R. 98, p. 75.)

Wahi’s defamation claim on appeal is therefore not the one
presented in his amended complaint. We have previously
held, along with the Fifth, Sixth, Seventh, and Eleventh Cir-
cuits, that a plaintiff may not raise new claims after discovery
has begun without amending his complaint. Barclay White
Skanska, Inc. v. Battelle Mem’l Inst., 262 Fed. Appx. 556, 563
(4th Cir. 2008) (unpublished) (citing Tucker v. Union of Nee-
dletrades, Indus., & Textile Employees, 407 F.3d 784, 788
(6th Cir. 2005); Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1315 (11th Cir. 2004); Shanahan v. City of Chicago, 82
F.3d 776, 781 (7th Cir. 1996); and Fisher v. Metro. Life Ins.
Co., 895 F.2d 1073, 1078 (5th Cir. 1990)). Wahi never
amended his complaint to change his existing defamation
claim or add a new defamation claim based on Dr. Crotty’s
statement to the media. Therefore, we will not consider the
claim for the first time on appeal. See United States v. Evans,
404 F.3d 227, 236 n.5 (4th Cir. 2005) (stating that a party who
"failed to raise [an] argument before the district court . . . has
. . . waived it on appeal"). Furthermore, because Wahi did not
argue his claim of defamation based on the filing of the
NPDB report on appeal, that claim is abandoned. See 11126
Baltimore Boulevard, Inc., 58 F.3d at 993 n.7 (issue waived
when not argued on appeal).

E. Breach of Contract Claim

As an alternative basis for awarding summary judgment on
Wahi’s state law breach of contract claim, the district court
concluded CAMC’s Bylaws did not constitute a contract
between CAMC and Wahi. (J.A. 280-82.) Wahi asserts the
district court erred because, under West Virginia law, a hospi-
tal’s bylaws constitute a contract between the physician and
the hospital when a physician is accused of misconduct. Cit-
ing Kessel v. Monongalia County Gen. Hosp. Co., 600 S.E.2d
321 (W. Va. 2004), Wahi contends that because a hospital is
32 WAHI v. CHARLESTON AREA MEDICAL CENTER
"bound" to afford a physician the procedures set forth in its
bylaws, "noncompliance with those provisions compels the
conclusion that CAMC breached [its] contract" with Wahi.
(Br. Appellant 37-39.) We disagree.

Wahi’s argument does not properly follow the West Vir-
ginia Supreme Court of Appeals’ analysis in Kessel. The court
clearly rejected the argument that the hospital’s medical staff
bylaws constituted a contract between the plaintiffs and the
hospital, which the hospital allegedly breached. Id. at 326.

[T]he essential element of valuable consideration is
absent. This Court has held that the doing by one of
that which he is already legally bound to do is not a
valuable consideration for a promise made to him,
since it gives to the promisor nothing more than that
to which the latter is already entitled. . . . Because
the hospital was already bound by [state] law to
approve the bylaws of the medical staff, and the
medical staff was bound to initiate and adopt bylaws,
neither party conferred on the other any more than
what the law already required. Thus, we conclude
that the medical staff bylaws do not constitute a con-
tract [absent express language to the contrary].

Id. (internal quotation marks and alterations omitted). While
a hospital may be required to follow its by-laws as a due pro-
cess component, there is no contractual relationship unless the
by-laws specifically so provide. Id. at 327. There was no such
provision in Kessel, and there is none in the case at bar. What-
ever due process entitlement Wahi may claim by virtue of the
CAMC by-laws, his arguments are subsumed by the forego-
ing analysis of his civil rights claims, which failed.

Accordingly, we hold the district court did not err in award-
ing CAMC summary judgment on Wahi’s breach of contract
claim.
 WAHI v. CHARLESTON AREA MEDICAL CENTER 33
F. Breach of Confidentiality

Wahi’s last argument is that the district court erred in dis-
missing his state law "breach of confidentiality" claim
because 45 C.F.R. § 60.13 prohibited CAMC from disclosing
to the local news media the fact that it had reported Wahi to
the NPDB.29,30 (Br. Appellant 35-37.)

45 C.F.R. § 60.13 states, in relevant part:

Information reported to the [NPDB] is considered
confidential and shall not be disclosed outside the
Department of Health and Human Services . . . . Per-
sons and entities which receive information from the
[NPDB] either directly or from another party must
use it solely with respect to the purpose for which it
was provided. . . .

Any person who violates [the above provision] shall
be subject to a civil money penalty of up to $10,000
for each violation.
29
As noted, the district court disposed of Wahi’s claim in its October
2004 order granting CAMC’s Rule 12(b)(6) motion. Accordingly, we
review the district court’s decision de novo. See supra note 26.
30
CAMC responds that we should not consider Wahi’s argument
because Wahi’s complaint asserted "invasion of privacy," and not "breach
of confidentiality," which are two separate torts under West Virginia law.
(Br. Appellee 39-40.)
Wahi’s complaint appears to merge an allegation of "invasion of pri-
vacy, . . . or in the alternative, a wrongful disclosure of private facts."
Wahi specifically alleges CAMC "violated the confidentiality of reports to
the NPDB" by disclosing to the local media the fact that it had reported
Wahi to the NPDB. (J.A. 38-39.) The district court identified the claim as
one for Wahi’s "inva[sion of] privacy, or in the alternative, wrongful[ ]
disclos[ure of] private facts." (J.A. 63.) Although Wahi’s complaint could
have been much clearer in setting out a cause of action, we find that it was
at least sufficient for him to have preserved the issue raised on appeal.
34 WAHI v. CHARLESTON AREA MEDICAL CENTER
We find no error in the district court’s conclusion that Wahi
failed to allege that CAMC’s conduct constituted a breach of
confidentiality. Section 60.13 guarantees the confidentiality of
"[i]nformation reported to" the NPDB and specifically limits
the actions of individuals who "receive information from" an
NPDB report. Id. (emphasis added). It therefore does not pre-
vent the entity who reported NPDB from disclosing the mere
fact that a report was filed. Accordingly, the district court did
not err in granting CAMC’s Rule 12(b)(6) motion as to this
claim.

III.

For the foregoing reasons, we affirm the judgment of the
district court.

AFFIRMED