James B. Hurwitz, M.D. v. Ahs Hospital Corp.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5112-12T2

JAMES B. HURWITZ, M.D.,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
November 24, 2014
v.
APPELLATE DIVISION
1
AHS HOSPITAL CORP. and
OVERLOOK HOSPITAL MEDICAL
STAFF,

Defendants-Respondents.
_________________________________

Argued October 14, 2014 - Decided November 24, 2014

Before Judges Sabatino, Simonelli, and
Leone.

On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket
No. L-2194-11.

Philip F. Mattia argued the cause for
appellant (Mattia & McBride, P.C.,
attorneys; Mr. Mattia, of counsel and on the
briefs; Alex W. Raybould, on the brief).

Anthony Cocca argued the cause for
respondents (Bubb, Grogan & Cocca, LLP,
attorneys; Mr. Cocca, of counsel and on the
brief; Katelyn E. Cutinello, on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

1
Improperly pled as Overlook Hospital.
 This litigation arises out of a hospital's internal review

and investigation of a surgeon after shortcomings were revealed

in the care that surgeon had provided to certain patients.

After extensive administrative hearings conducted within the

hospital, in which the surgeon and his attorney participated,

the hospital's Board of Trustees revoked the surgeon's clinical

privileges. The surgeon contended that the actions taken

against him by the hospital were arbitrary, unreasonable, and

unduly punitive. He sought relief in the trial court, based on

several legal theories.

The trial court dismissed the surgeon's lawsuit. In doing

so, the court relied upon immunities from monetary damages

conferred by federal and New Jersey statutes upon hospitals and

the participants in peer review processes when evaluating a

physician's performance and in making decisions about that

physician's clinical privileges. See 42 U.S.C.A. §§ 11111 to

11112 and N.J.S.A. 2A:84A-22.10. The court found that plaintiff

had failed to present sufficient evidence or indicia to overcome

those statutory immunities. The court further ruled that

plaintiff had not justified the taking of depositions, or the

pursuit of other additional discovery, before the immunity

issues were adjudicated.

2 A-5112-12T2
 For the reasons that follow, we affirm the trial court's

dismissal of plaintiff's complaint, the rejection of his request

to amend his pleadings a third time to amplify his allegations,

and the court's determination that plaintiff had failed to

justify additional discovery. In particular, we concur with the

trial court that the hospital and the participants in the

hospital's internal review processes are statutorily immune in

this case from monetary liability. We further agree with the

court that plaintiff has not identified sufficient grounds to

establish that the hospital conducted its investigation without

a reasonable basis for doing so, or that the hospital's

revocation of plaintiff's privileges was imposed without a

reasonable belief that such action was in furtherance of quality

health care objectives.

Additionally, we sustain the trial court's ruling that

plaintiff's conclusory allegations of wrongdoing by the hospital

and the participants in the internal review process are

insufficient to warrant depositions or the taking of other

additional discovery. We hold that a challenger's right to

obtain discovery, particularly depositions, in cases involving

these immunity statutes is not absolute. Instead, the court may

curtail discovery in its discretion if there are no reasonable

3 A-5112-12T2
indicia that a factual basis to surmount the immunities will be

uncovered.

I.

We derive the following chronology of events from the

record, describing them solely to the extent that they are

pertinent to the case-dispositive immunity questions raised

before us.2 In doing so, we acknowledge that plaintiff disagrees

with some of the hospital's findings3 of his deficient

2
Prior to oral argument on the appeal, we invited counsel, sua
sponte, to submit correspondence addressing confidentiality and
privacy issues bearing upon the disclosure of certain
information in the record. After receiving counsel's
submissions, we granted defendants' motion to seal a
confidential appendix submitted in connection with the appeal,
which contains materials that the trial court had likewise
sealed at defendants' request. Plaintiff did not oppose the
sealing, provided that if the dismissal of his lawsuit were
vacated by this court and the case remanded, the appellate
sealing order would not foreclose his evidential use of the
contents of the confidential appendix in the trial court.
Defense counsel agreed with that proviso. Counsel also agreed
that this court is not required under the applicable privacy or
confidentiality laws to use initials or pseudonyms in this
opinion for plaintiff himself or the names of the persons
involved in the hospital's internal review process. However,
counsel agreed, and we concur, that the names of the patients
who are mentioned in the confidential appendix should be
initialized and not revealed.
3
Counsel agreed that the findings and recommendations contained
within the confidential appendix may be freely quoted and
referred to in this court's opinion. See, e.g., Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 610-11 (4th Cir.
2009) (quoting from various correspondence and peer review
committee findings), cert. denied, 558 U.S. 1158, 130 S. Ct.
1140, 175 L. Ed. 2d 991 (2010); see also Poliner v. Tex. Health
(continued)

4 A-5112-12T2
performance and that he vigorously contests the sanction of

revocation that the Board of Trustees ultimately imposed.

Initial Review of Plaintiff's Performance and the Temporary
Suspension of His Privileges

Plaintiff James B. Hurwitz, M.D., is a board-certified

general surgeon licensed in the State of New Jersey. Plaintiff

has been granted clinical privileges at several hospitals,

including Overlook Hospital ("Overlook" or "the hospital"),

where he first obtained privileges in 1998.

Eventually, concerns arose regarding the care that

plaintiff had provided to certain patients at Overlook. As a

result, in June 2010, the hospital's Chief of Surgery referred

cases of two of plaintiff's patients for review by an outside

(continued)
Sys., 537 F.3d 368, 372-73 (5th Cir. 2008) (summarizing the
findings of an Internal Medicine Advisory Committee and noting
that the appellant doctor was found to have "(1) poor clinical
judgment; (2) inadequate skills . . . ; (3) unsatisfactory
documentation of medical records; and (4) substandard patient
care"), cert. denied, 555 U.S. 1149, 129 S. Ct. 1002, 173 L. Ed.
2d 315 (2009); Gordon v. Lewistown Hosp., 423 F.3d 184, 194 (3d
Cir. 2005) (quoting various findings of the hospital's internal
hearing officer's report as well as other communications
exchanged between the chairman of the credentials committee and
the appellant doctor), cert. denied, 547 U.S. 1092, 126 S. Ct.
1777, 164 L. Ed. 2d 557 (2006); Singh v. Blue Cross/Blue Shield
of Mass., Inc., 308 F.3d 25, 29-30 (1st Cir. 2002) (freely
quoting from an internal "audit" of the appellant doctor's
performance, which stated that "competent expert care was rarely
seen" and that "documented treatment showed evidence of care
somewhat below recognized standards of care").

5 A-5112-12T2
expert, a faculty member at New York University School of

Medicine. The outside reviewer is not affiliated with Overlook.

Plaintiff was not concurrently informed that those cases had

been sent out for review.

The outside reviewer issued a report in August 2010,

opining that, with respect to one of the two patients in

question, plaintiff had not been "proactive in managing [the

patient's] care" and also that he had failed to "intervene when

the clinical situation required." The reviewer reached similar

conclusions with respect to the second patient. The reviewer

recommended "counseling, monitoring, and consideration of

restricting [plaintiff's] clinical privileges[,]" and if such

measures had already been taken, "terminating [plaintiff's]

privileges at Overlook Hospital."

Soon thereafter, on September 29, 2010, the hospital's

Medical Executive Committee ("MEC") convened to consider

authorizing an internal investigation into plaintiff's clinical

competence. On that same day, the twenty-six MEC members in

attendance unanimously voted in favor of commencing such a

formal investigation.

The next day, September 30, 2010, the president of the

hospital's medical staff issued a letter to plaintiff, notifying

him that the MEC had begun the investigation. As a consequence

6 A-5112-12T2
of the pending investigation, the president temporarily

suspended plaintiff's clinical privileges. This temporary

suspension was imposed pursuant to the hospital's bylaws.

The Chancery Division Action

Less than a week later, on October 1, 2010, plaintiff filed

an action in the Chancery Division seeking injunctive relief to

restrain and enjoin the hospital from suspending his privileges.

Plaintiff then filed an amended complaint in the Chancery

action, adding as a co-defendant the hospital's medical staff

("the Medical Staff"). The hospital and the Medical Staff filed

opposition to the injunctive application.

After hearing initial oral argument, the Chancery Division

judge presiding over the matter, Hon. John F. Malone, granted

plaintiff's request for certain expedited discovery and

scheduled further argument on the injunction. Among other

things, Judge Malone directed defendants to provide plaintiff

with a copy of the hospital's bylaws, written notice of the

reasons for any adverse action taken or proposed, results of any

investigation taken, medical charts, records, and any written

report of the hospital's findings, including a "recitation of

the [hospital's] actions and recommendations . . . and the basis

for [plaintiff's] summary suspension without [a] hearing[.]"

The judge declined to issue temporary restraints restoring

7 A-5112-12T2
plaintiff's privileges. Certain paper discovery, including

responses to interrogatories, apparently were thereafter

provided in the Chancery action, but no depositions were taken.

The Investigating Committee's Review

Meanwhile, as a follow-up to the September 2010 MEC

meeting, the hospital created an Ad Hoc Investigating Committee

("the Investigating Committee"), appointed by the Medical Staff,

to undertake the investigation and to submit a report with its

findings and recommendations to the MEC. Five physicians were

named to the Investigating Committee. The Investigating

Committee met several times between October 2010 and December

2010. Plaintiff was invited to provide written submissions, and

he did so in a letter from his counsel and also in his own

separate letter. Plaintiff declined, however, three

opportunities to meet with the Investigating Committee in person

and to answer questions.

On December 20, 2010, the Investigating Committee issued

its report, along with various recommendations. The report

noted that the Committee had reviewed plaintiff's care that he

had provided to six patients over a year-and-a-half period.

Based on its review of those six cases, the Investigating

Committee reached certain unfavorable conclusions. In

particular, its report found that plaintiff's care was "notable

8 A-5112-12T2
for poor documentation of care plans and delays in managing

complications of surgery, which resulted in adverse outcomes."

Given its findings, the Investigating Committee presented the

following recommendation:

Our recommendation is to remove [plaintiff]
from the ER [Emergency Room] call schedule
and to institute ad hoc review of 25
inpatient surgical cases [in which plaintiff
had acted] as primary surgeon by the
Surgical Care Review Committee. If
[plaintiff's] performance of the cases were
felt to be adequate, he would be able to
return to the ER roster.

Dismissal of the Chancery Action

The hospital then filed a motion to dismiss plaintiff's

Chancery action, in lieu of an answer, for failure to state a

claim upon which relief can be granted, pursuant to Rule 4:6-

2(e). That motion was granted on January 21, 2011.4

On the same day that Judge Malone granted the hospital's

motion to dismiss the Chancery action, the MEC issued its

decision based on the Investigating Committee's report. In a

letter dated January 21, 2011, the MEC informed plaintiff that

it had voted to impose a continued suspension of his privileges,

4
The dismissal order recites that the Chancery action was
dismissed "with prejudice," although the parties and the trial
court did not treat the dismissal of the Chancery Division as a
bar to plaintiff's subsequent litigation in the Law Division.

9 A-5112-12T2
subject to various terms and conditions. Specifically, the MEC

stated as follows:

After thoughtful consideration and
deliberation, the MEC voted to impose an
additional suspension of your clinical
privileges commencing upon your receipt of
this notice for a minimum of three (3)
months or until such time as you complete
professional courses at your expense
approved by the MEC addressing Medical
Ethics and Professionalism, Medical Record
Documentation and General Surgical Review.
Upon completion of the suspension, your
clinical privileges will be reinstated at
which time you will be required to undergo a
concurrent review of twenty-five (25) cases
by a supervising surgeon assigned by the
Chairman of the Department of Surgery.
During the concurrent review, you will be
ineligible for the Emergency Department on-
call schedule, you will not be provided
routine resident coverage for your patients,
and any and all elective cases will require
review and approval by the Chairman of the
Department of Surgery prior to scheduling a
patient for the OR [Operating Room] or
otherwise admitting a patient to Overlook
Hospital.

[(Emphasis added).]

A little less than a month later, Judge Malone denied

plaintiff's outstanding motion for a preliminary injunction.5

5
The parties do not explain why the trial court issued an order
denying plaintiff a preliminary injunction after the Chancery
action was already dismissed, although we suspect that denial of
the outstanding motion was issued for housekeeping reasons.

10 A-5112-12T2
 Plaintiff's Law Division Complaint

Although it is not entirely clear from the record,

plaintiff apparently filed a new or a reinstated complaint in

the Law Division some time between January 2011 and November

2011. Despite the fact that the Chancery action had already

been dismissed in January 2011, plaintiff obtained an order in

May 2011 "transferring" his case from the Chancery Division to

the Law Division. Plaintiff also requested that his case be

reassigned to the complex commercial track, pursuant to Rule

4:5A-2(b), so as to enable a lengthier period for discovery.

That tracking request was granted.

In November 2011, the hospital moved to dismiss plaintiff's

Law Division complaint, without prejudice, "pending a resolution

or completion of the hospital['s] hearing and appeal process."

The hospital noted that, under its applicable bylaws, plaintiff

was entitled to a formal internal hearing to contest the MEC's

investigative findings and recommendations. In fact, plaintiff

had already requested such an internal hearing under the bylaws,

and that hearing had begun.

Plaintiff did not oppose a without-prejudice dismissal of

his Law Division action at that time. As his counsel

represented to us, plaintiff agreed to such a dismissal to

accommodate the hospital's internal administrative procedures,

11 A-5112-12T2
in light of the costs and burdens of challenging the hospital's

actions in two separate proceedings at the same time.

Consequently, plaintiff and the hospital entered into a

Consent Order on January 19, 2012, dismissing plaintiff's Law

Division action, expressly "without prejudice," pending a

resolution or completion of the hospital's internal hearing and

appeals process. Pursuant to the terms of the Consent Order,

plaintiff was permitted to reinstate his amended complaint in

the Law Division "without regard to any statute of limitations

issues." Aside from this, the Consent Order specified that the

parties "reserve[d] all rights concerning the claims and

defenses."

The Hospital's Internal Hearings

The hospital's internal hearings began in June 2011. After

a substantial delay of eight months due to scheduling conflicts

of plaintiff's counsel, the hearings were resumed and completed

February 2012.

The hearing panel consisted of three physicians and a

presiding member from an outside organization. Both plaintiff

and the MEC were represented by counsel. We are advised that

fact and expert witnesses for both parties presented sworn

12 A-5112-12T2
testimony to the panel, and were subject to cross-examination.6

Documents were presented into evidence, including medical

records of the specific patients whose cases were the subject of

the MEC investigation. The parties submitted post-hearing

briefs for the panel's consideration. A certified shorthand

reporter prepared a verbatim transcript of the hearings.7

On May 2, 2012, the hearing panel issued its report. The

panel concluded that plaintiff had been deficient in his care

and treatment of the four patients whose cases it had reviewed.

With regard to those patients, the panel concluded that

plaintiff "in various respects, demonstrated poor surgical

judgment, a lack of attentiveness to patients, untimely post-

operative management of surgical complications and/or a failure

to document thought processes and plans of care." In addition,

the panel faulted plaintiff for, as it found, entering a note in

6
In particular, we were advised at oral argument that plaintiff
himself testified at the hearing and that he presented his own
expert witness, although the limited record supplied to us is
insufficient to confirm this.
7
We have not been furnished with the hearing transcripts, but,
as we explain, infra, they are not essential to our review of
the legal issues being presented on this appeal.

13 A-5112-12T2
the chart of one of those four patients, which "falsely

indicated that [plaintiff] had met with the patient's mother."8

Based on its factual findings, the hearing panel

recommended that the terms of plaintiff's suspension as set

forth by the MEC should be adopted. The panel also indicated

that more stringent sanctions beyond such a suspension were not

warranted. More specifically, the panel recommended in its

written report, in pertinent part:

3. [T]hat the suspension of [plaintiff's]
clinical privileges and other restrictions
imposed by the MEC were fair and reasonably
necessary to protect the health and safety
of patients . . . . [and]

. . . .

5. The record does not support the
imposition of greater sanctions on
[plaintiff] than those imposed by the MEC,
including the revocation of his clinical
privileges.

The Board of Trustees' Revocation of Plaintiff's Privileges

Pursuant to the hospital's bylaws, the hearing panel

forwarded its report to the Board of Trustees. Focusing in

particular upon the hearing panel's discrete finding that

plaintiff had falsified a patient record, the Board of Trustees

8
We were advised at oral argument that the hearing panel
apparently found the testimony of the patient's mother more
credible than that of plaintiff on the disputed question of
whether such consultation had taken place.

14 A-5112-12T2
revoked his clinical privileges, effective immediately. It

conveyed that decision in a letter to plaintiff dated July 26,

2012. Plaintiff did not pursue any further appeal within the

hospital of the Board of Trustees' decision, although the bylaws

entitled him to appeal the decision to a "Review Panel composed

of not fewer than three persons."

Plaintiff's Motion to Reinstate His Law Division Case and
Defendants' Motion to Dismiss

After the Board of Trustees informed him of its decision to

revoke his privileges, plaintiff moved to reinstate his action

in the Law Division but simultaneously moved to file a proposed

Second Amended Complaint. His pleadings, as originally framed

and then revised in the proposed Second Amended Complaint,

asserted several legal theories for the recovery of damages,

including breach of contract, breach of the implied covenant of

good faith and fair dealing, and violation of plaintiff's due

process rights.9 Defendants opposed the reinstatement motion.

They argued, among other things, that the proposed Second

Amended Complaint failed to state a cause of action as a matter

of law because of defendants' federal and state statutory

immunities.

9
In his last proposed amended complaint, plaintiff ultimately
amended this allegation, given the absence of State action by
defendants, to a claim of violation of "fundamental fairness."

15 A-5112-12T2
 After hearing oral argument, the Presiding Judge of the Law

Division, Hon. Kenneth J. Grispin, entered an order on March 12,

2013, accompanied by a written Statement of Reasons, denying

plaintiff's reinstatement motion, without prejudice.

Specifically, Judge Grispin found in his Statement of Reasons

that plaintiff's proposed Second Amended Complaint:

[f]ailed to plead malice on the part of the
hospital, or its staff, which was required
to rebut the presumption of reasonableness
pursuant to [42] U.S.C.A. § 11112(a).
Moreover, [plaintiff's] proposed amended
complaint fails to state a cause of action
as to the Board for the very same reasons
. . . . Similarly, [plaintiff's] alleged
"due process" claim, contained in Count
Three of the proposed amended complaint,
cannot be sustained against a non-profit
hospital.

Thereafter, plaintiff filed a motion for reconsideration

and for leave to file a further amendment to his Law Division

complaint. In support of his motion, plaintiff submitted a

proposed Third Amended Complaint naming as defendants "AHS

Hospital Corp.10 Board of Trustees." The proposed pleading also

names various fictitiously-named parties who have yet to be

identified.

Following another round of oral argument, Judge Grispin

denied plaintiff's motion for reconsideration. In a second

10
AHS Hospital Corporation evidently is the legal name of
Overlook Hospital.

16 A-5112-12T2
Statement of Reasons dated May 27, 2013, Judge Grispin concluded

that plaintiff's proposed Third Amended Complaint still "failed

to articulate sufficient facts which would demonstrate malice on

the part of Overlook which unjustly prejudiced [plaintiff] or

that the internal administrative hearing process was arbitrary

or capricious." The judge granted defendants' cross-motion to

dismiss the Law Division action, conclusively, specifying that

the dismissal was "with prejudice."

The Contentions on Appeal

On appeal, plaintiff contends that the trial court acted

prematurely in enforcing defendants' claimed immunities. He

argues that the court should have afforded him an opportunity to

conduct depositions, which he asserts might have uncovered

admissible evidence to overcome the immunities and which

potentially could demonstrate that defendants acted maliciously,

arbitrarily, or unreasonably. Although his counsel acknowledged

at the appellate oral argument that plaintiff had not handled

the patient cases in question "perfectly," and that some degree

of "remediation" of his conduct is appropriate, plaintiff

asserts that the sanction of revocation imposed by the Board of

Trustees is unduly harsh.

Plaintiff argues that the Board of Trustees' imposition of

the sanction of revocation, which is more severe than the

17 A-5112-12T2
conditional suspension recommended by the MEC and the hearing

panel, circumstantially shows that the Board of Trustees engaged

here in arbitrary and unreasonable decision-making. Plaintiff

also contends that the hospital and its agents waived in the

Consent Order their ability to oppose the reinstatement of his

lawsuit.

Plaintiff therefore urges that the trial court's dismissal

order be vacated. In particular, he seeks to have his lawsuit

reinstated for the completion of discovery and for a decision on

the merits with a fuller record.

In response, defendants maintain that the trial court

correctly enforced the terms mandated by and the public policies

reflected in the federal and state immunity statutes. Those

statutes, defendants emphasize, are designed to protect

hospitals and the participants in internal peer reviews from

having monetary liability to doctors who are sanctioned as a

result of such internal processes. Defendants further submit

that they did not waive in the Consent Order their right to

oppose a reinstatement of plaintiff's lawsuit on legal grounds,

here being the substantive immunities they are afforded under

the federal and state statutes.

Defendants further assert that the trial court sensibly

rejected plaintiff's request to conduct depositions and to

18 A-5112-12T2
pursue other discovery. They maintain there is no indication in

the record, apart from plaintiff's conclusory assertions and

suspicions, that the hospital or its representatives engaged

here in the sort of ill-founded or nefarious behavior that could

nullify their statutory immunities.

II.

The critical focus of this appeal centers upon the

application of the federal and state immunities that have been

invoked by defendants. We begin our analysis with an

examination of the federal statutory provisions, 42 U.S.C.A. §§

11111 to 11112.

The federal immunities are part of the larger Healthcare

Quality Improvement Act of 1986 ("HCQIA"), 42 U.S.C.A. §§ 11101

to 11152, which provides, in relevant part, that in a

"professional review action of a professional review body . . .

(A) the professional review body, (B) any person acting as a

member or staff to the body, (C) any person under a contract or

other formal agreement with the body, and (D) any person who

participates with or assists the body with respect to the

action" shall not be liable in damages under any law "with

respect to [any review] action," 42 U.S.C.A. § 11111(a)(1), if

the review action is taken:

19 A-5112-12T2
 (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
circumstances, and

(4) in the reasonable belief that the
action was warranted by the facts known
after such reasonable effort to obtain facts
and after meeting the requirement of
paragraph (3).

[42 U.S.C.A. § 11112(a).]

A "professional review body," as that term is used in the

HCQIA, is broadly defined. The term encompasses "a health care

entity and the governing body or any committee of a health care

entity which conducts professional review activity, and includes

any committee of the medical staff of such an entity when

assisting the governing body in a professional review activity."

42 U.S.C.A. § 11151(11).

A "professional review action," defined earlier in the

HCQIA, consists of:

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 conduct of an individual
physician (which conduct affects or could
affect adversely the health or welfare of a

20 A-5112-12T2
 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 previous
sentence and also includes professional
review activities relating to a professional
review action.

[42 U.S.C.A. § 11151(9) (emphasis added).]

Further, the HCQIA defines "professional review activity"

to cover any activity of a health care entity with respect to an

individual physician conducted "(A) to determine whether the

physician may have clinical privileges with respect to, or

membership in, the entity, (B) to determine the scope or

conditions of such privileges or membership, or (C) to change or

modify such privileges or membership." 42 U.S.C.A. § 11151(10).

Significantly, the HCQIA imposes a rebuttable presumption

that an adverse professional review action undertaken by a

hospital against a physician is protected by the immunity. As

the statute recites, "[a] professional review action shall be

presumed to have met the preceding standards necessary for the

protection set out in section [42 U.S.C.A. § 11111(a)] unless

the presumption is rebutted by a preponderance of the evidence."

42 U.S.C.A. § 11112(a). The only specified qualification to

this broad immunity coverage, then, is if a plaintiff

demonstrates, by a preponderance of the evidence, that the

21 A-5112-12T2
defendant took action without a reasonable belief in initiating

the action, failed to provide adequate notice and hearing

procedures, or otherwise took action without a reasonable belief

it was warranted by the facts after a reasonable investigation.

See 42 U.S.C.A. § 11112(a)(1) to -(4).

"HCQIA immunity is a question of law for the court to

decide and may be resolved whenever the record in a particular

case becomes sufficiently developed." Bryan v. James E. Holmes

Reg'l Med. Ctr., 33 F.3d 1318, 1332 (11th Cir. 1994) (emphasis

added), cert. denied, 514 U.S. 1019, 115 S. Ct. 1363, 131 L. Ed.

2d 220 (1995). As the House of Representatives Committee that

took part in the HCQIA's passage explained:

The [immunity] provisions would allow a
court to make a determination that the
defendant has or has not met the standards
specified in section [11112(a)]. The
Committee intends that the court could so
rule even though other issues in the case
remain to be resolved. For example, a court
might determine at an early stage of
litigation that the defendant has met the
[section 11112(a)] standards, even though
the plaintiff might be able to demonstrate
that the professional review action was
otherwise improper. At that point, it would
be in order for the court to rule on
immunity. In such a case, the court could
still proceed to determine whether
injunctive, declaratory, or other relief
would be in order.

[Ibid. (quoting H.R. Rep. No. 99-903, at 12
(1986), reprinted in 1986 U.S.C.C.A.N. 6394
(emphasis added)).]

22 A-5112-12T2
 This immunity from monetary liability has been enforced

repeatedly by the federal and state courts, aside from

exceptional instances where the immunity has been overcome.

See, e.g., Osuagwu v. Gila Reg'l Med. Ctr., 850 F. Supp. 2d

1216, 1239 (D.N.M. 2012) (finding that HCQIA immunity should not

apply because plaintiff was not "given a fair opportunity to

confront and cross-examine the anonymous physicians who prepared

the peer-review forms," and because the peer review panel was

not impartial, given that one of the reviewers was an "accuser,

investigator, prosecutor, and one of [the plaintiff's] judges

[at the hearing]"); see also Colantonio v. Mercy Med. Ctr., 901

N.Y.S.2d 370, 374 (App. Div. 2010) (finding that the defendants

were not clearly entitled to immunity because there remained a

"triable issue of fact as to whether, at the meeting of the

Committee, some defendants knowingly provided false

information").

Recognizing the strong legislative policy underlying 42

U.S.C.A. § 11111, the Eleventh Circuit has cautioned that the

proper role of courts on review of peer review decisions "is not

to substitute our judgment for that of the hospital's governing

board or to reweigh the evidence regarding the renewal or

termination of medical staff privileges." Bryan, supra, 33 F.3d

at 1337. Other courts applying the statute have expressed

23 A-5112-12T2
comparable deference to hospitals, their peer reviewers, and

their internal decision-makers. See, e.g., Harris v. Bradley

Mem. Hosp. & Health Ctr., 50 A.3d 841, 858 (Conn. 2012) (noting

that in enacting the HCQIA, Congress intended to "resolve the

question of immunity under the federal act as early as possible

and to reinforce judicial deference to hospital decision-

making"), cert. denied, 133 S. Ct. 1809, 185 L. Ed. 2d 812

(2013).

Similar public policies are reflected in our State's

cognate immunity statute, N.J.S.A. 2A:84A-22.10. Like the

federal law, the New Jersey statute provides broad immunity for

damages to qualified persons for actions taken as part of a

hospital's peer review process. As is relevant here, N.J.S.A.

2A:84A-22.10 provides that:

Any person who serves as a member of, is
staff to, under a contract or other formal
agreement with, participates with, or
assists with respect to an action of:

. . . .

d. A hospital peer review committee having
the responsibility for the review . . . of
matters concerning the limiting the scope of
hospital privileges . . .

. . . .

shall not be liable in damages to any person
for any action taken or recommendation made
by him within the scope of his function with
the committee, subcommittee or society in

24 A-5112-12T2
 the performance of said peer-review, ethics,
grievance, judicial, quality assurance or
professional relations review function, if
such action or recommendation was taken or
made without malice and in the reasonable
belief after reasonable investigation that
such action or recommendation was warranted
upon the basis of facts disclosed.

[(Emphasis added).]

Although N.J.S.A. 2A:84A-22.10 was adopted in 1979, it has

been cited only infrequently in published case law, at times

just in passing.11 None of those cases has specifically

addressed the legal questions presented here concerning the

evidentiary burden of a party seeking to overcome the immunity,

and what, if any, discovery, such a challenger is entitled to

obtain before the trial court rules on a defendant's motion to

dismiss based upon the New Jersey immunity.12

11
See, e.g., Patel v. Soriano, 369 N.J. Super. 192, 251 n.15
(App. Div.) (noting the statutory immunity provided to a
"hospital performing its credentialing function on applicants
for surgical privileges"), certif. denied, 182 N.J. 141 (2004);
see also Bainhauer v. Manoukian, 215 N.J. Super. 9, 38 (App.
Div. 1987) (mentioning the conditional privilege afforded to
physicians involved in hospital peer review but resolving the
underlying lawsuit on other grounds).
12
If, in fact, the federal immunity protects defendants, then
there is no need to reach the application of the overlapping
state-law immunity.

25 A-5112-12T2
 III.

Having canvassed these key aspects of the federal and state

immunity statutes, we now consider the propriety of the trial

court's dismissal of plaintiff's complaint seeking monetary

damages.13 We also examine the related question of whether the

court's enforcement of defendants' immunities, thereby leaving

plaintiff without further discovery, was premature. Before

delving into that analysis, we dispose first of two procedural

matters.

A.

First, we reject plaintiff's argument that the Consent

Order should be construed as a waiver of defendants' right,

based on their federal and state immunities, to oppose

plaintiff's claims. The terms of the Consent Order cannot be

reasonably interpreted to bar defendants from interposing their

immunity arguments. The plain language of the Consent Order

provides that the parties "reserve all rights concerning the

claims and defenses." (emphasis added).

A consent order is, in essence, an agreement of the parties

that has been approved by the court. As the Supreme Court has

13
Plaintiff's complaint in the Law Division deleted his request
that he had made earlier in the Chancery Division for the
equitable relief of reinstatement of his clinical privileges.
Hence, the only specified relief that he now seeks is monetary
damages.

26 A-5112-12T2
consistently noted, one of the "'fundamental canons of contract

construction require that we examine the plain language of the

contract and the parties' intent, as evidenced by the contract's

purpose and surrounding circumstances.'" Highland Lakes Country

Club & Cmty., Ass'n v. Franzino, 186 N.J. 99, 115 (2006)

(quoting State Troopers Fraternal Ass'n v. New Jersey, 149 N.J.

38, 47 (1997) (citations omitted)). The plain language of the

Consent Order here is not ambiguous, nor is it obscured by the

surrounding circumstances. Defendants clearly did not forfeit

in the Consent Order their right to invoke their statutory

immunities, or their right to invoke them as soon as the

litigation was reactivated.

Moreover, our Court Rules explicitly state that a request

to dismiss for failure to state a claim "may be made in any

pleading permitted or ordered or by motion for summary judgment

or at the trial on the merits." R. 4:6-7 (emphasis added).

Thus, by its very terms, Rule 4:6-7 permits a party to raise the

defense of a failure to state a claim as late as trial, as well

as sooner on motion. See Buteas v. Raritan Lodge No. 61 F. &

A.M., 248 N.J. Super. 351 (App. Div. 1991); see also Pressler &

Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:6-7 (2015)

(stating that a defense under Rule 4:6-2(e) "may be raised as

late as trial"). We further note that defendants did, in fact,

27 A-5112-12T2
assert the defense of failure to state a claim in response to

plaintiff's amended verified complaint that he had filed earlier

in the Law Division, albeit in a footnote in their motion

papers, before the Consent Order was entered.

We recognize that defendants agreed in the Consent Order

that plaintiff could reinstate his amended complaint. However,

as plaintiff stated at the appellate argument, he sought to

"reinstate" not his First Amended Complaint but his Second

Amended Complaint. In any event, had defendants acceded to

reinstatement of his First Amended Complaint and then opposed

further amendment or moved to dismiss, the end result would have

been the same.

B.

A second preliminary facet that we must address is the

appropriate procedural context in which to evaluate defendants'

case-dispositive motion. To be sure, defendants' motion was

couched as a motion to dismiss under Rule 4:6-2(e) for failure

to state a claim upon which relief may be granted. However,

both parties in their submissions respecting that motion, as

well as the trial court, made reference to and relied upon

documentary materials from the hospital's internal review

process. Those materials were beyond the four corners of the

complaint, although excerpts of them were quoted or referred to

28 A-5112-12T2
in the complaint. In his ruling, the judge at times referred to

the entire record presented to him, which clearly went beyond

the discrete excerpts quoted and otherwise referred to in the

pleadings. As such, defendants' motion to dismiss most properly

should be conceived as a dismissal motion converted to a motion

for summary judgment under Rule 4:46-1 to -6, as is permitted

under the last sentence of Rule 4:6-2.14

Viewed properly in this more expansive context, we must

evaluate the record before us under the customary standards of

summary judgment practice. See Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 540 (1995). In particular, we are to read

the record in a light most favorable to plaintiff and accord all

favorable inferences to plaintiff that can be reasonably drawn

from that record. See R. 4:46-2; Brill, supra, 142 N.J. at 540;

see also Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584

(2012) (applying the same Rule 4:46 standards on appellate

review of a summary judgment order). Upon doing so, we are

satisfied, for the reasons we explain, infra, that the trial

14
R. 4:6-2 ("If, on a motion to dismiss based on the defense
numbered (e), matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one
for summary judgment and disposed of as provided by R. 4:46, and
all parties shall be given reasonable opportunity to present all
material pertinent to such a motion.").

29 A-5112-12T2
court's entry of final judgment in defendants' favor was sound

and not premature.15

C.

We turn to the substance of the immunity arguments. Even

viewing the record in a light most favorable to plaintiff, we

agree with Judge Grispin that defendants are entitled to

immunity from damages as a matter of federal and New Jersey

statutory law, and that plaintiff has failed to present a

sufficient basis to vault those immunities.

As Judge Grispin correctly found, defendants are clearly

within the presumptive scope of the federal immunity under the

HCQIA. The hospital's internal review of plaintiff's

performance unquestionably comprises a "professional review

activity" under 42 U.S.C.A. § 11151(10). The participants in

the review, including the Medical Staff, the Investigating

Committee, the MEC, the hearing panel, and the Board of Trustees

are all "professional review bodies" within the ambit of the

15
Even if, for the sake of discussion, the standards for
dismissal under Rule 4:6-2(e) are applied here rather than the
summary judgment standards, see, e.g., Printing Mart-Morristown
v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989), we remain
persuaded that the immunity statutes control this case and
mandate dismissal of the lawsuit. "A pleading should be
dismissed if it states no basis for relief and discovery would
not provide one." Rezem Family Assocs., L.P. v. Borough of
Millstone, 423 N.J. Super. 103, 113 (App. Div.), certif. denied,
208 N.J. 366 (2011).

30 A-5112-12T2
statute. See 42 U.S.C.A. § 11151(11). The various

recommendations and decisions to impose sanctions upon plaintiff

—— initially a recommended suspension and ultimately the Board

of Trustees' revocation of plaintiff's clinical privileges ——

comprise "professional review actions" as defined under 42

U.S.C.A. § 11151(9), because they adversely affected plaintiff's

status at the hospital.

As we have already noted, defendants and the other

participants in the hospital's internal review process are

presumptively immune under the HCQIA from monetary damages if

they acted in "the reasonable belief that the[ir] action[s] were

in the furtherance of quality health care," 42 U.S.C.A. §

11112(a)(1), "after a reasonable effort to obtain the facts of

the matter," 42 U.S.C.A. § 11112(a)(2), after "adequate notice

and hearing procedures are afforded to the physician . . . or

after such other procedures as are fair to the physician under

the circumstances," 42 U.S.C.A. § 11112(a)(3), and with a

"reasonable belief that the action was warranted by the facts

known after such reasonable effort to obtain facts" and after

appropriate notice and fair procedures. 42 U.S.C.A. §

11112(a)(4).

More simply stated, the federal immunity presumptively

governs this case, so long as the hospital and its participants

31 A-5112-12T2
proceeded in a fair and reasonable manner and with a reasonable

belief that the actions taken were in furtherance of quality

health care and warranted by the facts. The record provides no

evidence, nor even a plausible indication, that defendants

failed to comport with these norms of fairness and

reasonableness. Plaintiff failed to carry his burden to rebut

the presumption, or even create a material issue of fact.

The judicial power to intervene in disputes over a

physician's clinical privileges is circumscribed. As this court

held almost thirty years ago in an opinion coincidentally

involving another physician whose privileges had been terminated

at Overlook, "[j]udicial review of hospital decisions regarding

admission to medical staff, extent of privileges and termination

is very limited." Zoneraich v. Overlook Hosp., 212 N.J. Super.

83, 90 (App. Div.), certif. denied, 107 N.J. 32 (1986).

"Hospital officials are vested with wide managerial discretion,

to be used to elevate hospital standards and to better medical

care." Ibid. (citing Greisman v. Newcomb Hosp., 40 N.J. 389,

403 (1963)). "So long as hospital decisions concerning medical

staff are reasonable, are consist[e]nt with the public interest,

and further the health care mission of the hospital, the courts

will not interfere." Ibid. (citing Desai v. St. Barnabus Med.

Ctr., 103 N.J. 79 (1986), and Belmar v. Cipolla, 96 N.J. 199,

32 A-5112-12T2
208 (1984)). Although Zoneraich did not involve the HCQIA

(which, as it so happened, was enacted by Congress that same

year), these same general principles pertain in applying that

federal immunity.

That said, our courts have also recognized that "a

physician is entitled to fundamentally fair procedures in a non-

profit hospital's consideration of staff membership, the extent

of privileges and termination." Id. at 91. Accordingly, the

hospital seeking to suspend or oust a physician must provide

notice to the affected physician of the charges or the

hospital's proposed action before an internal hearing. Ibid.

"The tribunal must be fair and unbiased." Ibid. The physician

has a qualified right to retain counsel and a right to

disclosure of certain information, "limited by recognition of

competing rights to privilege and confidentiality." Ibid.

(emphasis added) (citing Garrow v. Elizabeth Gen. Hosp. &

Dispensary, 79 N.J. 549, 566-68 (1979)).

As our Supreme Court noted in Garrow and we reiterated in

Zoneraich, "[j]udicial review of a hospital board action 'should

properly focus on the reasonableness of the action taken in

relation to the several interests of the public, the

[physician], and the hospital.'" Zoneraich, supra, 212 N.J.

Super. at 91 (emphasis added) (quoting Garrow, supra, 79 N.J. at

33 A-5112-12T2
565). Because of the internal nature of the hospital's private

hearing, "'[t]he proper standard upon review is not identical

with that customarily applied to administrative agencies, that

is, substantial competent credible evidence.'" Ibid. (quoting

Garrow, supra, 79 N.J. at 565). "'However, the record should

contain sufficient reliable evidence, even though of a hearsay

nature, to justify the result.'" Ibid. (quoting Garrow, supra,

79 N.J. at 565).

The HCQIA likewise affords deference to hospitals and their

representatives when they make these difficult decisions

concerning a physician's clinical privileges. That deference is

manifested by the federal law's express presumption that the

immunity from damages applies unless the physician challenging

the hospital's adverse decision proves, by a preponderance of

the evidence, that the decision-makers took action without a

reasonable belief that it was in furtherance of quality health

care, failed to provide adequate notice and hearing procedures,

or took action without a reasonable belief based on the facts

known after a reasonable investigation. See 42 U.S.C.A. §

11112(a).

The "reasonable belief" concepts in subsections (a)(1) and

(a)(4) of Section 11112 are objective standards. In fact, as

the House Committee report explains, the drafters of the federal

34 A-5112-12T2
immunity revised the bill to replace a "good faith" requirement

contained in an earlier version to "a more objective 'reasonable

belief'" standard. H.R. Rep. No. 99-903, at 10 (1986),

reprinted in 1986 U.S.C.C.A.N. 6392-93. The Committee noted

"concerns that 'good faith' might be misinterpreted as requiring

only a test of the subjective state of mind of the physicians

conducting the professional review action." Ibid. The

Committee further declared its intention that the "reasonable

belief" test "will be satisfied if the reviewers, with the

information available to them at the time of the professional

review action, would reasonably have concluded that their action

would restrict incompetent behavior or would protect patients."

Ibid. The Committee also expressed its "belief that this

standard will be met in the overwhelming majority of

professional review actions[.]" Ibid. (emphasis added).

Consistent with the drafters' intent, case law has repeatedly

treated the "reasonable belief" test under the statute as an

objective test.16

16
See, e.g., Cohlmia v. St. John Med. Ctr., 693 F.3d 1269,
1277 (10th Cir. 2012) ("The entity or persons that undertake the
professional review are immune under HCQIA as long as they
substantially comply with a list of objective standards set
forth in the Act."); Poliner, supra, 537 F.3d at 377 ("[T]he
HCQIA's 'reasonableness requirements were intended to create an
objective standard of performance, rather than a subjective good
faith standard.'"); Gordon, supra, 423 F.3d at 205 ("[I]mmunity
(continued)

35 A-5112-12T2
 The HCQIA does not specify that a reviewing court must be

provided with transcripts of the hospital's internal hearing in

order to evaluate the adequacy of the hospital's proceedings.

Although we recognize that the trial court in Zoneraich was

apparently supplied with a record of the hospital's internal

proceedings, we do not construe the HCQIA to require that such

transcripts be furnished in every case. The transcripts are not

vital where, as here, the other documents provided to the court

sufficiently establish that the physician was afforded a fair

and reasonable opportunity to be heard, and show that the

hospital's ultimate decision was reasonably attained based upon

factual determinations generated from those internal hearings.

N.J.S.A. 2A:84A-22.10 extends a similar form of immunity

protection for hospitals, peer reviewers, and decision-makers.

(continued)
will be judged by applying the objective standard regarding
whether the Hospital based its actions upon the reasonable
belief that they are in furtherance of quality healthcare.");
Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461, 468 (6th
Cir. 2003) ("[The HCQIA] is an objective standard, rather than a
subjective good faith requirement."); Freilich v. Upper
Chesapeake Health, 313 F.3d 202, 212 (4th Cir. 2002) ("[T]he
HCQIA's objective reasonableness standard is a perfectly valid
guide for peer review bodies."); Singh, supra, 308 F.3d at 32
("[S]ister circuits have uniformly applied all the sections of §
11112(a) as objective standards"); Sugarbaker v. SSM Health
Care, 187 F.3d 853, 857 (8th Cir. 1999) ("[T]he reasonableness
requirements contained in section 11112(a) necessitate an
objective inquiry."), cert. denied, 528 U.S. 1137, 120 S. Ct.
980, 145 L. Ed. 2d 931 (2000).

36 A-5112-12T2
The provision broadly covers "any person" involved in such

review of a physician "for any action taken or recommendation

made by [that person] within the scope of [that person's]

function" in that role. N.J.S.A. 2A:84A-22.10(e). This state-

law immunity applies, so long as "such action or recommendation

was taken or made without malice and in the reasonable belief

after reasonable investigation that such action or

recommendation was warranted upon the basis of facts disclosed."

N.J.S.A. 2A:84A-22.10(e) (emphasis added).17

Although the term "malice" is not defined within N.J.S.A.

2A:84A-22.10, the conventional meaning of that term suggests

that the sanctioned physician must prove that the hospital

defendants acted, in essence, either with ill will, without just

cause,18 or with a reckless disregard of the truth of the facts

17
Unlike the federal statute, the New Jersey statute does not
contain an express presumption that the state-law immunity
controls and must be overcome by the plaintiff.
18
In other contexts, malice "is defined as 'the intentional
doing of a wrongful act without just cause or excuse.'"
LoBiondo v. Schwartz, 199 N.J. 62, 93-94 (2009) (quoting Jobes
v. Evangelista, 369 N.J. Super. 384, 398 (App. Div.) (defining
malice in the context of a malicious prosecution case), certif.
denied, 180 N.J. 457 (2004)); see also Lamorte Burns & Co. v.
Walters, 167 N.J. 285, 306 (2001) (noting, in the context of
tortious interference, that "malice" means that "harm was
inflicted intentionally and without justification or excuse").

37 A-5112-12T2
regarding the physician's quality of care.19 The "reasonable

belief" aspect of the New Jersey statute is also undefined. We

discern no basis to construe it any differently than the federal

immunity statute's usage of that term.

We have no doubt that plaintiff was provided here with a

procedurally fair opportunity to be heard during the hospital's

internal process. He was given multiple opportunities to

provide written submissions to the hospital's reviewers and

decision-makers. He was advised before the formal hearing

conducted by the hearing panel of the specific patient cases

that would be the subject of review. He was represented in the

internal hearings by able and experienced counsel who is a

certified civil trial attorney. He apparently testified and

also presented his own expert witness. The findings of the

Investigating Committee and, thereafter, of the hearing panel,

were clearly detailed in writing.

By all indications, these procedures comported with the

HCQIA, the New Jersey statute, and case law. It is not as if

plaintiff had been abruptly summoned before the Board of

Trustees without warning and summarily stripped of his

privileges for no articulated reasons. To the contrary, the

19
See, e.g., DeAngelis v. Hill, 180 N.J. 1, 13 (2004) (applying
such a notion of "malice" in the context of a defamation case).

38 A-5112-12T2
Board's final decision was the culmination of a lengthy and

elaborate process, one in which plaintiff had many opportunities

to present opposition and, presumably, to settle the matter on

the terms recommended in succession by the internal reviewers.

Attempting to meet his burden to establish unreasonableness

or other improper conduct, plaintiff points to three aspects of

the chronology that he contends are indicia that defendants'

statutory immunities should be overcome. He specifically

alleges in his reply brief that: (1) defendants did not have a

reasonable belief that their actions as to him were in the

furtherance of quality health care; (2) they failed to provide

him with adequate notice of the first investigation and of the

initial referral to the outside reviewer; and (3) they lacked a

reasonable belief that the sanctions recommended and imposed

were warranted. As to that latter point, plaintiff emphasizes

that the sanction of revocation ultimately imposed by the Board

of Trustees was harsher than the conditional suspension

recommended by both the MEC and the hearing panel. We concur

with the trial court that there is no merit to these contentions

of unfairness.

The record provides an ample basis to justify the

hospital's decision to pursue a review of the care that

plaintiff had provided to several of his patients. Indeed,

39 A-5112-12T2
those concerns were borne out by the adverse findings of the

outside reviewer, the Investigating Committee, and the hearing

panel. The documents in the appendices readily show that

defendants had a reasonable basis to believe that the

professional review and remedial action they took was pursued to

further the quality of health care being provided to the

hospital's patients.

In general, the applicable nexus to the "quality of health

care" will be satisfied under the HCQIA if the reviewing body,

based on the information before it, "would reasonably have

concluded that [its] action would restrict incompetent behavior

or would protect patients." Gordon, supra, 423 F.3d at 202

(quoting H.R. Rep. No. 99-903, at 10 (1986), reprinted in 1986

U.S.C.C.A.N. 6393). As the Fifth Circuit has noted, the HCQIA

"does not require that the professional review result in an

actual improvement of the quality of health care, nor does it

require that the conclusions reached by the reviewers were in

fact correct." Poliner, supra, 537 F.3d at 378 (quoting

Imperial v. Suburban Hosp. Ass'n, Inc., 37 F.3d 1026, 1030 (4th

Cir. 1994)). That observation is consistent with the fact that

Congress prescribed, under 42 U.S.C.A. § 11112(c), that a

professional review board may immediately suspend clinical

privileges "where the failure to take such an action may result

40 A-5112-12T2
in an imminent danger to the health of any individual." Ibid.

As the Third Circuit has observed, "the good or bad faith of the

reviewers [under the HCQIA] is irrelevant." Brader v. Allegheny

Gen. Hosp., 167 F.3d 832, 840 (3d Cir. 1999) ("Brader II").

At the time its nearly year-long review process began, the

hospital had outstanding concerns regarding plaintiff's

management of his patients and his documentation of their

treatment. Indeed, as the outside reviewer concluded in his

report, plaintiff "either did not understand the appropriate

steps in management or approached the situation too passively.

Neither is acceptable." Moreover, plaintiff himself

acknowledged in his Second Amended Complaint that two of his

patients "had recognized complications associated with their

surgeries." The fact that those patients eventually recovered

is not dispositive. The record manifestly shows that the

hospital's initiation of the review process was reasonable.

We also reject plaintiff's next claim that defendants are

disentitled to immunity because they failed to provide him with

advance notice of the first steps of the outside review and

investigation. As federal case law instructs, "nothing in the

[HCQIA] requires that a physician be permitted to participate in

the review of his [own patient's] care." Singh, supra, 308 F.3d

at 44 (citation omitted). The HCQIA applies to "discrete

41 A-5112-12T2
decisions, not an on-going course of conduct." Wojewski v.

Rapid City Reg'l Hosp., Inc., 730 N.W.2d 626, 636 n.9 (S.D.

2007) (applying the HCQIA's immunities).

Plaintiff's third argument, contending that defendants

lacked a reasonable belief that the sanctions against him were

actually warranted, is similarly flawed. He contends that the

Board of Trustees "consistently and inexplicably disregarded"

the independent recommendations made regarding his performance.

In his view, the Board of Trustees did not possess a reasonable

belief that its decision to revoke his privileges was warranted.

The trial judge rejected this specious assertion, and so do we.

Courts generally agree that "the reversal of a peer review

committee's recommendation of an adverse professional review

action by a higher level peer review panel does not indicate

that the initial recommendation was made without a reasonable

belief that the recommendation would further quality health

care." Singh, supra, 308 F.3d at 41 (citing Austin v. McNamara,

979 F.2d 728, 735 (9th Cir. 1992) (granting immunity in a

situation where a hospital's judicial review committee

overturned a medical executive committee's recommendation of an

adverse professional review action)). The converse is also

true.

42 A-5112-12T2
 The mere fact that, as plaintiff's counsel's phrased it at

oral argument before us, the hospital decision-makers "ratcheted

up" the sanctions as the matter progressed does not signify that

the Board of Trustees or the other hospital decision-makers

acted unreasonably or maliciously. In the motion arguments

below, Judge Grispin aptly analogized the present case to

attorney discipline cases, in which the Supreme Court sometimes

imposes a harsher ultimate sanction on a licensee than that

recommended by the Disciplinary Review Board.20 The ultimate

authority to make privilege decisions within the hospital rests

with the Board of Trustees under the hospital's bylaws, and the

Board's selection of a harsher penalty in this case does not

mean that it acted maliciously or unreasonably.

The Board had a reasonable cause for serious concern after

the hearing panel concluded from the testimony it heard that

plaintiff had made a false entry on a patient chart. Whether or

not that discrete finding is actually true is beyond our limited

20
Although the Supreme Court "ordinarily place[s] great weight
on the recommendation of the Disciplinary Review Board," the
Court "[does not] not hesitate to impose a more severe sanction
than that recommended by the Board when circumstances warrant."
In re Kushner, 101 N.J. 397, 403 (1986) (citations omitted)
(finding the attorney's false certification a "grave misconduct"
and elevating the Disciplinary Review Board's recommended one-
year suspension to three years); see also In re Rosen, 88 N.J.
1, 3 (1981) (finding the attorney's subornation of perjury
"inexcusable and reprehensible" and elevating the Disciplinary
Review Board's proposed one-year suspension to three years).

43 A-5112-12T2
scope of review. True or not, the finding alone reasonably

supported the Board of Trustees' discretionary decision to

revoke plaintiff's privileges. Moreover, plaintiff apparently

bypassed numerous opportunities to resolve this matter with the

lesser sanctions recommended by the MEC, the Investigating

Committee, and the hearing panel before the matter reached the

Board level.

D.

As a final matter, we consider plaintiff's argument that

the trial court acted prematurely in dismissing his lawsuit

without further discovery, particularly in denying his request

for the depositions of persons involved in the hospital's

review, investigation, and decision-making process. We are

satisfied that Judge Grispin did not misapply his discretion in

curtailing further discovery and in adjudicating the immunities

of defendants on the law and on the record supplied to him.

Neither the HCQIA nor N.J.S.A. 2A:84A-22.10 specifies what

amount of discovery, if any, is warranted before a trial court

may adjudicate the merits of the immunities invoked by a

hospital or individual defendants who participated in the review

of a physician's clinical privileges. We are mindful, however,

of the House Committee's guidance that the immunity question

under the HCQIA may be resolved at "an early stage of

44 A-5112-12T2
litigation," and that court may do so "even though other issues

in the case remain to be resolved." H.R. Rep. No. 99-903, at 12

(1986), reprinted in 1986 U.S.C.C.A.N. at 6394.

The federal cases display no consistent pattern in the

level of discovery afforded to physicians who challenge hospital

defendants' assertions of HCQIA immunity. In some instances,

the federal courts have found that the plaintiff physician was

entitled to limited discovery of the peer review process. See,

e.g., Wahi v. Charleston Area Med. Ctr., Inc., 453 F. Supp. 2d

942, 948 (S.D. W. Va. 2006) (authorizing limited discovery, in

the form of numerically-capped interrogatories, requests for

admissions, and time-limited depositions), aff'd, 562 F.3d 599

(4th Cir. 2009), cert. denied, 558 U.S. 1158, 130 S. Ct. 1140,

175 L. Ed. 2d 991 (2010); Teasdale v. Marin Gen. Hosp., 138

F.R.D. 691, 694 (N.D. Cal. 1991) (authorizing the production of

peer review documents); see also Sugarbaker, supra, 187 F.3d at

857 (noting that the trial court had allowed depositions of

persons involved in the hospital's peer review process, where

the reasonableness of that process, including claims of

antitrust violations by the defendants, had been plausibly

challenged by plaintiff).

45 A-5112-12T2
 Conversely, in some instances, the HCQIA immunity issues

were resolved by the trial court at an early stage by granting a

motion to dismiss for failure to state a claim upon which relief

may be granted. See, e.g., Straznicky v. Desert Springs Hosp.,

642 F. Supp. 2d 1238, 1240 (D. Nev. 2009) (granting dismissal of

plaintiff's damage claims, with prejudice, based solely on the

allegations of the plaintiff's complaint and related documents

that the plaintiff physician had supplied to the court in

connection with his motion for a temporary restraining order);

Sobel v. United States, 571 F. Supp. 2d 1222, 1229 (D. Kan.

2008) (granting the defendants' motion to dismiss under the

HCQIA on the face of the pleadings, finding, among other things,

that the plaintiff physician had not asserted sufficient grounds

to overcome the statute's presumption of immunity).

At the very least, the question of immunity under the HCQIA

may be resolved in appropriate cases at the summary judgment

stage. As the Ninth Circuit has observed, because the

"reasonableness" requirements of 42 U.S.C.A. § 11112(a) were

"intended to create an objective standard, rather than a

subjective standard [of judicial review], this inquiry may be

resolved on summary judgment." Smith v. Ricks, 31 F.3d 1478,

1485 (9th Cir. 1994), cert. denied, 514 U.S. 1035, 115 S. Ct.

1400, 131 L. Ed. 2d 287 (1995). The question then becomes

46 A-5112-12T2
whether a plaintiff has been afforded a sufficient opportunity

to obtain facts that might bear upon that objective assessment.

The sparse case law under the analogous New Jersey immunity

statute is not instructive on the discovery question. As with

the federal statute, it is logical to conclude that a

defendant's entitlement to immunity under N.J.S.A. 2A:84A-22.10

can at times be resolved on a dispositive motion. It is equally

sensible to conclude that a plaintiff's right to discovery on

the state-law immunity issues may be reasonably limited by a

trial judge.

We decline to adopt a per se rule declaring that a

plaintiff physician who has lost his clinical privileges is

always entitled to depositions or other full-blown discovery in

litigating HCQIA immunity issues. Such a blanket right would

conflict with the intent of Congress to permit the HCQIA

immunity to be adjudicated at an "early stage of litigation" in

appropriate cases. Nor do we construe the New Jersey immunity

statute to create such an absolute right.

In some cases, an unfettered right to discovery would

needlessly entangle hospitals and review participants in

depositions and other litigation activities, thereby diluting

the practical benefit of the immunity protection conferred upon

them by statute. Although we are mindful that these statutes

47 A-5112-12T2
provide hospital defendants with immunity from damages rather

than immunity from suit, we also appreciate that protracted

discovery easily can be costly and burdensome for the persons

and entities involved. An appropriate balance can, and should,

be struck.

We therefore adopt a case-by-case approach that reposes

discretion in the trial court to determine to what extent

discovery on the immunity issues should be permitted. See,

e.g., R. 4:46-5 (granting trial judges authority to defer

decisions on summary judgment motions where the party opposing

the summary judgment motion demonstrates, by affidavit, that

additional discovery is needed to respond to the motion). Such

a case-specific approach is consistent with the important role

that our civil trial judges routinely perform in balancing the

needs of litigants to obtain relevant information against the

often significant burdens and costs of the discovery process.

The exercise of wise judicial discretion in striking a proper

balance of those interests is particularly important where, as

here, immunity statutes are involved.

On appeal, we generally will not second-guess a trial

judge's exercise of discretion in discovery matters unless the

appellant demonstrates that such discretion was abused.

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371

48 A-5112-12T2
(2011); Bender v. Adelson, 187 N.J. 411, 428 (2006). We must

review the trial court's denial of additional discovery to

plaintiff here through that prism of deference.

Here, plaintiff already received at least some amount of

paper discovery in the Chancery Division action. Plaintiff and

his attorney actively participated in the two hearings before

the hospital's hearing panel. He now demands depositions, on

the conjectural supposition that such adversarial questioning of

the hospital's representatives might reveal a proverbial

"smoking gun" reflecting malice or some form of unreasonable

conduct on their part.

We concur with Judge Grispin that, given the particular

context of this case, there is no need to allow such depositions

to proceed when defendants' entitlement to immunity is so clear.

Even if depositions proceeded, the individual deponents (or the

hospital itself) might assert absolute or qualified privileges

from disclosure under potentially-applicable confidentiality

laws, and might decline to answer some or all of plaintiff's

queries. See, e.g., C.A. v. Bentolila, 219 N.J. 449, 451 (2014)

(involving privileges from disclosure under the New Jersey

Patient Safety Act);21 Christy v. Salem, 366 N.J. Super. 535,

21
Although defendants have cited to the Patient Safety Act,
N.J.S.A. 26:2H-12.23 to -12.25, we make no conclusive
(continued)

49 A-5112-12T2
541-45 (App. Div. 2004) (recognizing a qualified privilege from

disclosure under a hospital's peer review privilege). As the

Supreme Court recently underscored in C.A., there are strong

public policies recognized by the Legislature in encouraging the

free flow of evaluative communications within a hospital made in

an effort to improve future patient care. C.A., supra, 219 N.J.

at 473. We need not and do not resolve the applicability of

these confidentiality laws and public policies, but simply

acknowledge that they might well limit the scope of any

additional discovery if it had been allowed.

Other than his vague suppositions that his circumstances

were unfairly considered by the hospital and its

representatives, plaintiff has not set forth a proffer, in a

sworn affidavit pursuant to Rule 4:46-5 or otherwise, that

specifies what information he would intend to elicit from the

hospital's representatives at their depositions. If plaintiff

wants to ask them why they did what they did, the reasons are

self-evident from the written findings of the Investigating

(continued)
determination that the Act applies to the communications in this
case. See N.J.A.C. 8:43E-10.9(b)(1) (limiting the protection of
the Patient Safety Act to documents, materials, and information
developed by a health care facility "exclusively" during the
process of self-critical analysis); see also, C.A., supra, 219
N.J. at 467-68. At the very least, the potential applicability
of that statute would no doubt complicate the discovery process.

50 A-5112-12T2
Committee, the hearing panel, and the Board of Trustees —— all

of which he already has in his possession.

In addition, this is not a case in which antitrust

violations have been alleged, which has been true in some of the

federal cases where more extensive discovery was permitted.

See, e.g., Brader v. Allegheny Gen. Hosp. 64 F.3d 869, 876 (3d

Cir. 1995) ("Brader I") (reversing the district court's

dismissal of the plaintiff's complaint, in part, because "the

adequacy of a physician's contentions regarding the effect on

competition is typically resolved after discovery, either on

summary judgment or after trial"); see also Sugarbaker, supra,

187 F.3d at 857 (likewise involving discovery completed of a

case involving antitrust claims). Where such colorable

antitrust claims are present, the factual and legal complexity

of the case may be greater and the justification for plenary

discovery may be heightened.

Plaintiff's complaint, which he has amended multiple times,

makes several conclusory allegations that defendants acted

"maliciously" and "arbitrarily" in taking away his clinical

privileges. As Judge Grispin correctly recognized, the mere

inclusion of such normative adverbs within a physician's

complaint does not justify a free-wheeling discovery mission

51 A-5112-12T2
delving into a hospital's internal review and investigation of

that physician's poor performance.

The trial court reasonably concluded that plaintiff already

had been provided with enough information to attempt to surmount

the statutory immunities. Because the court did not abuse its

discretion, we sustain its sensible decision to curtail

additional discovery and to disallow depositions of the

hospital's representatives.

Affirmed.

52 A-5112-12T2