Jones v. Hawai'i Medical Board

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
07-NOV-2022
07:56 AM
Dkt. 56 MO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LILLIAN M. JONES, M.D., Plaintiff-Appellant,
v.
HAWAI#I MEDICAL BOARD, AHLANI K. QUIOGUE, EO, CONSTANCE I.
CABRAL, EO, Defendants-Appellees,
and
JOHN DOES 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 1CC151001958)

MEMORANDUM OPINION
(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Defendant-Appellee Hawai#i Medical Board examines
applicants for a license to practice medicine or surgery; it is
under the administrative control of the director of the Hawai#i
Department of Commerce and Consumer Affairs.1 Self-represented
Plaintiff-Appellant Lillian M. Jones appeals from the Final
Judgment in favor of the Medical Board and two of its officers,
Defendants-Appellees Ahlani K. Quiogue and Constance I. Cabral
(the Officers), entered by the Circuit Court of the First Circuit
on September 11, 2018.2 For the reasons explained below, we
affirm the Final Judgment.

1
See Hawaii Revised Statutes (HRS) §§ 453-5(a); 453-5.1; 436B-7(2);
and 26-9(c).
2
The Honorable James H. Ashford presided.
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

PROCEDURAL HISTORY

Jones filed the action below on October 8, 2015. She
alleged that the Medical Board provided false information about
her competence as a physician to the National Practitioner Data
Bank.3 She filed an amended complaint on April 8, 2016. Her
amended complaint alleged counts for: (1) violation of the
federal Health Care Quality Improvement Act; (2) libel;
(3) defamation; and (4) tortious interference with prospective
business advantage.
The Medical Board filed a motion for judgment on the
pleadings or, in the alternative, for summary judgment. The
motion was heard on March 8, 2017.4 The circuit court granted
the motion.5
The Officers filed a motion for summary judgment. The
motion was heard on December 20, 2017.6 The circuit court
granted the motion.
The Final Judgment was entered on September 11, 2018.
This appeal followed. Jones contends that the circuit court
erred by granting the Medical Board's motion for judgment on the
pleadings and the Officers' motion for summary judgment.7

3
The National Practitioner Data Bank (NPDB) is a web-based
repository of reports containing information on medical malpractice payments
and certain adverse actions related to health care practitioners, providers,
and suppliers. Established by Congress in 1986, it is a workforce tool that
prevents practitioners from moving state to state without disclosure or
discovery of previous damaging performance. See About Us, NPDB National
Practitioner Data Bank, https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp
(last visited Nov. 2, 2022).
4
The record on appeal does not contain a transcript of the hearing.
5
The Honorable Rhonda A. Nishimura presided.
6
The Honorable James H. Ashford presided.
7
The opening brief does not comply with Rule 28(b) of the Hawai#i
Rules of Appellate Procedure. Because Jones is self-represented, we interpret
her brief liberally and address the arguments we are able to discern. See
Erum v. Llego, 147 Hawai#i 368, 380-81, 465 P.3d 815, 827-28 (2020)
(instructing that self-represented litigants should not automatically be
foreclosed from appellate review because they fail to comply with court
rules).

2
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

STANDARDS OF REVIEW

An order granting a Hawai#i Rules of Civil Procedure
(HRCP) Rule 12(c) motion for judgment on the pleadings is
reviewed de novo. In re Off. of Info. Pracs. Op. Letter No.
F16-01, 147 Hawai#i 286, 294, 465 P.3d 733, 741 (2020).

In a motion for judgment on the pleadings under HRCP
Rule 12(c), the movant must clearly establish that no
material issue of fact remains to be resolved and that they
are entitled to judgment as a matter of law. In considering
a motion for judgment on the pleadings, the trial court is
required to view the facts presented in the pleadings and
the inferences to be drawn therefrom in the light most
favorable to the nonmoving party.
Our task on appeal is to determine whether the circuit
court's order supports its conclusion that the movant is
entitled to judgment as a matter of law and, by implication,
that it appears beyond a doubt that the nonmoving party can
prove no set of facts in support of its claim that would
entitle it to relief under any alternative theory.

Id. (cleaned up).
An order granting summary judgment is also reviewed de
novo. Nozawa v. Operating Engineers Local Union No. 3, 142
Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018). 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. at 342, 418 P.3d at 1198. A fact is
material if proof of that fact would have the effect of
establishing or refuting one of the essential elements of a cause
of action or defense asserted by the parties. Id.

DISCUSSION

I. The Medical Board's Motion

The Medical Board made three legal arguments: (1) there
is no private cause of action for alleged violation of the Health
Care Quality Improvement Act; (2) Jones's tort claims are barred
by sovereign immunity; and (3) Jones's libel and defamations
claims are precluded by a judgment in a previous lawsuit.
3
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

A. The Health Care Quality Improvement Act did
not create a private cause of action.

The federal Health Care Quality Improvement Act:

was enacted in 1986 to improve the quality of medical care
by restricting the ability of physicians who have been found
to be incompetent from repeating this malpractice by moving
from state to state without discovery of such finding.
Toward this end, the Act establishes a national reporting
system "to follow bad doctors from place to place," and
provides immunity from damages for persons participating in
professional review activities. Under the national
reporting system, insurance companies are required to report
medical malpractice payments to the Secretary of Health and
Human Services; boards of medical examiners are required to
report sanctions imposed against physicians; and health care
entities are required to report adverse professional review
information. The Act also imposes a duty on hospitals to
obtain information reported about any physician who applies
for hospital privileges or employment, and to update such
information every two years after hospital privileges are
granted.

Imperial v. Suburban Hosp. Ass'n, 37 F.3d 1026, 1028 (4th Cir.
1994) (citations omitted). The Health Care Quality Improvement
Act did not create a private right of action for persons who are
the subjects of required reports. See, e.g., Held v. Decatur
Mem'l Hosp., 16 F. Supp. 2d 975, 977 (C.D. Ill. 1998) (citing Bok
v. Mut. Assurance, Inc., 119 F.3d 927, 929, reh. denied, 132 F.3d
1462 (11th Cir. 1997), cert. denied, 523 U.S. 1118, 118 S.Ct.
1796, 140 L. Ed. 2d 937 (1998), and other cases). Jones cites no
case holding to the contrary, and we have found none. The
circuit court correctly ruled, as a matter of law, that "there is
no private cause of action available to [Jones] under" the Health
Care Quality Improvement Act.
On appeal, Jones argues that a private cause of action
should be implied because:

Under [Health Care Quality Improvement Act] 42 U.S.C.
§[ ]11111(a) when a professional review body meets the four
statutory requirements prescribed in 42 U.S.C.A.
§[ ]11112(a) (West 2005), it is immune from damages.

Jones's argument lacks merit for three reasons.

4
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The Hawai#i Supreme court has stated:

In determining whether a private remedy is implicit in a
statute not expressly providing one, several factors are
relevant. First, is the plaintiff one of the class for
whose especial benefit the statute was enacted; that is,
does the statute create a right in favor of the plaintiff?

Flores v. Logan, 151 Hawai#i 357, 368, 513 P.3d 423, 434 (2022)
(cleaned up). Doctors who are the subjects of reports to the
National Practitioner Data Bank are not within the class of
persons the Health Care Quality Improvement Act was enacted to
benefit. See Imperial, 37 F.3d at 1028 (noting that "the Act
establishes a national reporting system 'to follow bad doctors
from place to place[.]'").
Second, 42 U.S.C. §§ 11111 and 11112 provide qualified
immunity to professional review bodies "[t]o assure that
hospitals and doctors cooperate with the system and engage in
meaningful professional review[.]" Imperial, 37 F.3d at 1028.
42 U.S.C. § 11101 (1986) provides that persons participating in
professional review activities that meet the standards imposed by
42 U.S.C. § 11112 "shall not be liable in damages under any law
of the United States or of any State (or political subdivision
thereof)" with respect to the person's participation in such
activities. (Emphasis added.) The Health Care Quality
Improvement Act provides mandated reporters with qualified
immunity from liability under other federal or state laws; it
does not create a new private cause of action.
Third, 42 U.S.C. § 11101 does not apply to the Medical
Board. It applies only to a "professional review body" and its
members, staff, persons under a contract or other formal
agreement with it, and persons who participate with or assist it.

The term "professional review body" means 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. § 11151(11) (1986).

5
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

The term "health care entity" means, in relevant part:

(i) a hospital that is licensed to provide health care
services by the State in which it is located,
(ii) an entity (including a health maintenance organization
or group medical practice) that provides health care
services and that follows a formal peer review process for
the purpose of furthering quality health care (as determined
under regulations of the Secretary), and
(iii) . . . a professional society (or committee thereof) of
physicians or other licensed health care practitioners that
follows a formal peer review process for the purpose of
furthering quality health care (as determined under
regulations of the Secretary).

42 U.S.C. § 11151(4)(A) (1986). The Medical Board is not a
"professional review body" as defined by the Health Care Quality
Improvement Act.

B. Jones's tort claims are barred by sovereign
immunity.

By the State Tort Liability Act, Hawaii Revised
Statutes (HRS) Chapter 662, the State generally waived its
sovereign immunity for the torts of its employees. HRS § 662-2
(2016). However, the waiver does not apply to:

Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or
interference with contract rights[.]

HRS § 662-15(4) (2016) (emphasis added). The exception also
applies to claims for defamation. Mitsuba Publ'g Co. v. State,
1 Haw. App. 517, 517, 620 P.2d 771, 772 (1980).
Jones's opening brief presents no discernible argument
that the circuit court erred by applying HRS § 662-15(4). The
point is waived. Hawai#i Rules of Appellate Procedure (HRAP)
Rule 28(b)(7); Hawaii Ventures, LLC v. Otaka, Inc., 114 Hawai#i
438, 478, 164 P.3d 696, 736 (2007) ("an appellate court is not
obliged to address matters for which the appellant has failed to
present discernible arguments."). Even if an argument had been
presented, the statutory language is clear. The circuit court

6
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

did not err by ruling as a matter of law that Jones's claims for
libel, defamation, and intentional interference with prospective
business advantage were "barred by sovereign immunity, which is
retained by [the Medical Board] under [HRS] § 662-15(4)."

C. We need not decide whether issue preclusion
barred Jones's claims for libel and
defamation.

Jones contends that the circuit court erred by ruling
that her libel and defamations claims were precluded by a
judgment in a previous lawsuit.8 The circuit court's order
stated:

Although the Court does not rely on this basis in issuing
its ruling, [Jones's] libel, defamation, and intentional
interference with prospective business relations claims are
also barred by collateral estoppel arising out of the
operation of the Final Judgment entered in favor of
Defendant Hawai#i Medical Board and against [Jones] in Civil
No. 10-1-2238-10 KTN.

(Emphasis added.) As explained above, Jones's tort claims
against the Medical Board were barred by sovereign immunity. We
need not decide whether the doctrines of claim or issue
preclusion also applied to those claims.

II. The Officers' Motion

After the circuit court entered the order granting the
Medical Board's motion for judgment on the pleadings, the
Officers moved for summary judgment based on Medeiros v. Kondo,
55 Haw. 499, 522 P.2d 1269 (1974). In Medeiros the supreme court
declined to adopt a rule that nonjudicial government officers9
were absolutely immune to suits for damages arising out of the
performance of their public function. Id. at 500-01, 522 P.2d at
1270. Instead, the court adopted a rule of qualified immunity,

8
Jones v. Hawaii Board of Medical Examiners, JIMS no. 1CC101002238.
9
Hawai#i recognizes absolute immunity for judicial officers, State
v. Taylor, 49 Haw. 624, 631, 425 P.2d 1014, 1019 (1967), and for legislators
exercising their legislative functions, Greer v. Baker, 137 Hawai#i 249, 255,
369 P.3d 832, 838 (2016) (citing Haw. Const. art. III, § 7).

7
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

placing upon the "plaintiff the burden of adducing clear and
convincing proof that defendant was motivated by malice and not
by an otherwise proper purpose." Id. at 504, 522 P.2d at 1272.

A. Constance I. Cabral.

Cabral submitted a declaration stating: "At no time
relevant to this case have I held any malice toward the Plaintiff
Lillian M. Jones." Jones submitted no evidence to controvert
Cabral's testimony. Jones offered a copy of the Medical Board's
report to the National Practitioner Data Bank, but Cabral's name
does not appear on the report and there is no evidence in the
record about what role, if any, Cabral had in preparing or
submitting the report. The circuit court did not err in granting
summary judgment to Cabral.

B. Ahlani K. Quiogue.

Quiogue submitted a declaration stating: "At no time
relevant to this case have I held any malice toward the Plaintiff
Lillian M. Jones." The burden then shifted to Jones to
"demonstrate specific facts, as opposed to general allegations,
that present a genuine issue worthy of trial." Nozawa, 142
Hawai#i at 342, 418 P.3d at 1198 (citations omitted).
The Medical Board's report indicates that Quiogue was
the person who transmitted it to the National Practitioner Data
Bank. The report stated:

ON SEPTEMBER 8, 2006, THE HAWAII MEDICAL BOARD (FORMERLY
KNOWN AS THE BOARD OF MEDICAL EXAMINERS) ("BOARD") DENIED
DR. JONES'S APPLICATION BASED ON HER CONDUCT AT THE
PEDIATRIC CONTINUITY CARE CLINIC ON APRIL 1, 2004, THE
ENSUING ACTION(S) TAKEN AGAINST HER BY THE HAWAII RESIDENCY
PROGRAMS, INC., TRIPLE BOARD RESIDENCY TRAINING PROGRAM, AND
THE VIOLATIONS OF THE CONDITIONS OR LIMITATIONS UPON WHICH A
LIMITED OR TEMPORARY LICENSE IS ISSUED. ON JULY 31, 2007
DR. JONES SUBMITTED A REQUEST FOR RECONSIDERATION TO THE
BOARD. ON AUGUST 10, 2007 THE BOARD BOARD [sic] VOTED TO
AFFIRM ITS DECISION TO DENY HER APPLICATION. A HEARING WAS
CONVENED ON JANUARY 23, 2008. THE HEARINGS OFFICER
CONCLUDED THAT DR. JONES' ACTIONS IN THE APRIL 1, 2004
INCIDENT AMOUNTED TO PROFESSIONAL MISCONDUCT, HAZARDOUS
NEGLIGENCE, INCOMPETENCE, AND CONSTITUTED A SUFFICIENT BASIS
FOR THE DENIALS OF HER LICENSE APPLICATION. THE HEARINGS
OFFICER RECOMMENDED THAT THE BOARD AFFIRM ITS DENIAL OF

8
 NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

DR. JONES' APPLICATION FOR A MEDICAL LICENSE. PURSUANT TO
THE FINAL ORDER APPROVED BY THE BOARD ON AUGUST 8, 2008, THE
BOARD ADOPTED THE HEARINGS OFFICER'S RECOMMENDED DECISION AS
ITS FINAL ORDER AND AFFIRMED ITS DENIAL OF DR. JONES'
APPLICATION FOR A MEDICAL LICENSE.

As noted above, a plaintiff maintaining a tort claim
against a public official who is entitled to qualified immunity
has the burden of proving, by clear and convincing evidence, that
the public official "was motivated by malice and not by an
otherwise proper purpose." Medeiros, 55 Haw. at 504, 522 P.2d at
1272. Here, regardless of the propriety of the Medical Board's
decision, Quiogue's submission of that decision to the National
Practitioner Data Bank does not constitute evidence that Quiogue
was motivated by malice. Nor is there any other evidence in the
record that Quiogue was motivated by malice. Thus, the circuit
court did not err in granting summary judgment to Quiogue.

CONCLUSION

Based upon the foregoing, the "Final Judgment in Favor
of Defendants Hawai#i Medical Board, Ahlani K. Quiogue, EO, and
Constance I. Cabral, EO, and Against Plaintiff Lillian M. Jones"
entered by the circuit court on September 11, 2018, is affirmed.
DATED: Honolulu, Hawai#i, November 7, 2022.

On the briefs:
/s/ Katherine G. Leonard
Lillian M. Jones, Presiding Judge
Self-represented Plaintiff-
Appellant. /s/ Keith K. Hiraoka
Associate Judge
Bryan C. Yee,
Shari J. Wong, /s/ Sonja M.P. McCullen
Mana Moriarty, Associate Judge
Deputy Attorneys General,
State of Hawai#i,
for Defendants-Appellees.

9