1 No. 16-0834 – Camden-Clark Memorial Hospital Corporation v. Tuan Nguyen, M.D. LOUGHRY, Chief Justice, dissenting:

With just a few strokes of the keyboa rd, the majority ca relessly gutted a long-standing and well-established holding of th is Court that gave hospitals a wide berth in granting or denying privileges or staff appoi ntments. Nearly twenty-seven years ago, this Court ruled without equivocation: The decision of a private hospital to revoke, suspend, restrict or to refuse to renew the staff appointment or clinical privileges of a medical staff member is subject to limited judicial review to ensure that there was substantial compliance with the hospita l’s medical staff bylaws governing such a decision, as well as to ensure that the medical staff bylaws afford ba sic notice and fair hearing procedures, including an impartial tribunal. Syl. Pt. 1, Mahmoodian v. United Hosp.Ctr., Inc ., 185 W.Va. 59, 404 S.E.2d 750 (1991) (emphasis added). Base d on scant allegations of patient sa fety (which are little more than

a belated counteroffensive to a suit initiated by the hospital), the majority has seemingly eviscerated that holding. See W. Va. Code § 16-39-1 to -7 (2016) (Patient Safety Act of 2001). The majority reasons its way through the weighty issues of this case with the delicacy of a charging rhinocer os, failing to clarify what ve stiges remain of this wellensconced quasi-immunity or to consider th at this unwelcome intrusion into hospital staffing issues may actually jeopardize pa tient safety. Accordingly, I dissent. 

### FILED November 13, 2017 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA2 The facts in this matter are straight forward and largely undisputed. The medical staff bylaws of Camden-Clark Me morial Hospital Corporation (“Hospital”) require that physicians appointe d to its staff be board certified in their area of practice within five years of completing their reside ncy training. It is undisputed that the respondent (“Dr. Nguyen”), who was initially appointed to the Hospital’s staff in 2008 a few months after he completed his residency, was not board certified when he applied for re-appointment in 2013. That Dr. Nguyen fu lly understood the significance of this lack

of certification is clear from hi s letter to the Hospital, date d October 22, 2013, in which he admitted, when requesting temporary privileges: “I ta ke full responsibility for not having obtained my board certification.” Give n this acknowledged failure and consistent with its by-laws, the Hospital refused to re new his staff appointment by letter dated October 17, 2013. 1 Notably, Dr. Nguyen’s employment contract with Camden-Clark Physicians Corporation therefore terminated automatically under its own terms when his privileges terminated at the Hosp ital on November 30, 2013.

Of no small moment is the fact that the denial of re-appointment and resultant contractual termination yielded no action whatsoever on Dr. Nguyen’s part: he

1 By letter dated October 17, 2013, th e Hospital acknowledged receipt of Dr. Nguyen’s re-appointment application and informed him: In accordance with the Medical Staff Bylaws and Credentialing Policy, you are no t eligible to apply for reappointment to the Medical Staff of Camden Clark Medical Center due to your failure to obtain Board certification in your primary area of practice at the Hospital.3 neither appealed the decision nor initiated a civ il action to assert a claim of retaliation. Only when the Ho spital filed suit against him seeking reimbursement for his tail coverage premiums did he raise a claim of retaliation or otherwise take issu e with the Hospital’s staffing decision. While the dubious circ umstances under which Dr. Nguyen finally raised his claims of retaliation are scarcely dispositive of the issue, they demonstrate the ease with which an aggrieved physician may circumvent the Mahmoodian ruling.

More than fifty years ago, this Cour t recognized that “[t]he governing authorities of a private hospital, in the exercise of their discretion, have the absolute right to exclude licensed physicians from its medi cal staff and such action is not subject to judicial review.” Syl. Pt. 3, State ex rel. Sams v. Ohio Valley Gen. Hosp. Ass’n , 149 W.Va. 229, 140 S.E.2d 457 (1965) (emphasis added); see Hurwitz v. AHS Hosp. Corp ., 103 A.3d 285, 301 (N.J. Super. Ct. App. Div. 2014) (“The judicial power to intervene in disputes over a physician’s clinical privileges is circumscribed.”). Thirty years later, in

Mahomoodian , this Court again recogniz ed that judicial interference in medical staffing decisions must be limited, explaining that [t]he judicial reluctance to review the medical staffing decisions of private hospita ls, by way of injunction, declaratory judgment or otherwise, reflects the general unwillingness of courts to subs titute their judgment on the merits for the professional judgment of medical and hospital officials with superior qualifications to make such decisions. 185 W.Va. at 65, 40 4 S.E.2d at 756; see also Brinton v. IHC Hosps., Inc. , 973 P.2d 956, 964 (Utah 1998) (“[H]ospitals are entitled to exercise good faith medical judgment,4 which courts should not lightly question in subsequent civil suits . . . [Accordingly,] we give deference to a hospital’s decision to de cide whether medical standards of practice have been met.”). This essen tially “hands off” approach to hospital staffing decisions is widely-held and well-established. 2

2 In Mahmoodian , we cited the following cases to illustrate that a majority of courts limit judicial review of a private hospi tal’s staffing decisions to a determination of whether there was compliance w ith the hospital’s bylaws: Shulman v. Washington Hosp. Ctr. , 222 F.Supp. 59, 63, 64 (D.D.C.1963) ; Eidelson v. Archer , 645 P.2d 171, 175 n. 13 (Alaska 1982) (citing cases from other jurisdictions); Gaenslen v. Bd. of Dirs. , 185 Cal.App.3d 563, 568, 232 Cal.Rptr. 239, 241-42 (1985); Gianetti v. Norwalk Hosp. , 211 Conn. 51, 61-67, 557 A.2d 1249, 1254 -56 (1989) (citing cases from other jurisdictions); Adkins v. Sarah Bush Lincoln Health Ctr. , 129 Ill.2d 497, 506-07, 509 -10, 514, 136 Ill.Dec. 47, 51-52, 53, 55, 544 N.E.2d 733, 737-38, 739, 741 (1989) ; Pepple v. Parkview Mem’l Hosp., Inc. , 536 N.E.2d 274, 276 (Ind.1989); Porter Mem’l Hosp. v. Malak , 484 N.E.2d 54, 61 (Ind.Ct.App.1985); State ex rel. Willman v. St. Joseph Hosp. , 684 S.W.2d 408, 411, 412 (Mo.Ct.App.1984), application to transfer denied (Mo. Feb. 26, 1985); syl. pt. 2, Gotsis v. Lorain Cmty. Hosp. , 46 Ohio App.2d 8, 345 N.E.2d 641 (1974) (citing, in body of opinion, cases from other jurisdictions); Miller v. Indiana Hosp. , 277 Pa.Super. 370, 374-78, 380, 419 A.2d 1191, 1193-94, [185 W.Va. 65] 1196 (1980), appeal denied (Pa. Oct. 1, 1980).

Mahmoodian , 185 W.Va. at 64-65, 4 04 S.E.2d at 755-56 (fo otnote omitted). More recently, the Supreme Court of Missouri has observed that fort y-six states adhere to the rule that the staffing decisions of private ho spitals are subject to limited judicial review which is restricted to whether the hospita l’s decision conformed to its own bylaws or regulations. See Egan v. St. Anthony’s Med. Ctr. , 244 S.W.2d 169, 172 (Mo. 2008).5 With little to no consideration of the critic al need for hospitals to retain this deferential autonomy regarding privileges and st affing, the majority has carelessly paved a path for litigants, and the judiciary, to i nvade the decision-making process previously reserved to those with expertise in matters of medical staffing and pr ivileges. By simply phrasing a challenge to a staff appointment as “retaliatory” or “discriminatory,” a physician may now evade the construct established in Mahmoodian of limited judicial review. To illustrate, as in this case, a physician denied re-app ointment need only articulate a suggestion rooted in patient safety or a health care-related complaint and then allege that the privileges denial violates the Patient Safety Act of 2001. The ease with which a physician can conjure such assertio ns, and thereby effectively circumvent the limited review of staffing decisi ons, is troubling. Yet the majo rity, in its analysis, wholly

fails to address the need to strike a balan ce between purported policy concerns of patient safety and this type of potential gamesmanship.

These considerations aside, the major ity’s errant holding also fails to acknowledge that the existing ju dicial review available under Mahmoodian is more than sufficient to guard against retaliation or discri mination. While maintaining that judicial review of a hospital’s staffing decisions must be narrow in scope, this Court recognized the appropriate framework in which to addre ss improperly-motivated staff decisions. In

Mahmoodian , the Court held that “there are basi c, common-law procedural protections

which must be accorded a medi cal staff member by a privat e hospital in a disciplinary proceeding.” 185 W.Va. at 65, 404 S.E.2d at 756. More to th e point, the Court held that6 “[t]he decision of a private hospital revoking or otherwise affecting adversely the staff appointment or clinical privileges of a medi cal staff member will be sustained when, as an element of fair hearing procedures, there is substantial evidence supporting that

decision. ” Id. at 61, 404 S.E.2d at 752, syl. pt. 4 (emphasis added). Because principles of fundamental fairness require “substantial evidence” in support of a hospital’s staffing decision, a judicial avenue already exists fo r an aggrieved physician to demonstrate bias or discrimination without opening up the de cision-making process to the “scorched earth” processes of civil litigation. See Hurwitz , 103 A.3d at 306 (finding that permitting discovery to proceed in privileges cases “woul d needlessly entangle hospitals and review participants in depositions and other litigat ion activities, thereby diluting the practical benefit of the immunity protec tion conferred upon them[.]”).

In short, the majority needlessly obliterates the Mahmoodian immunity in the interest of avenging retaliation or discri mination. Where improper motivations exist,

the framework of Mahmoodian currently permits the unearthi ng of this type of prohibited

conduct. Cf. Pamintuan v. Nanticoke Mem’l Hosp. , 192 F.3d 378, 386 (3d Cir. 1999) (requiring challenging physic ian to demonstrate “wea knesses, implausibilities, inconsistencies, incoherencies, or contra dictions” in proffere d reason for privileges suspension); Kiracofe v. Reid Mem’l Hosp ., 461 N.E.2d 1134, 1140-41 (Ind. Ct. App. 1984) (“The decision of a hospital concerning staff privileges is accorded great deference and judicial intervention is limited to an a ssessment of whether the procedures employed7 by the hospital are fair, whether the standa rds set by the hospital are reasonable, and whether they have been applied withou t arbitrariness and capriciousness.”); Hurwitz , 103 A.3d at 296 (rejecting physician’s challenge to clinical privilege denial where physician provided “no evidence, nor even a plausible indication, that defendants failed to comport with [] norms of fairness and reasonableness” ). In this case, the undisputed facts amply

demonstrate the existence of “substantial ev idence” supporting the Hospital’s decision; the hospital by-laws mandate attainment of board certification within five years of employment—a requirement that Dr. N guyen admits he failed to obtain.

Unlike this Court, when faced with similar attempts to camouflage staff appointment challenges with a litany of tort claims, other co urts have wisely rejected such transparent maneuvers. “Prevailing unde r [a tort] theory would require judicial review of the merits of a hospital’s staffing decisions which is strictly prohibited.” Ralph v. St. Anthony’s Med. Ctr. , 470 S.W.3d 783, 787 (2015) (i nternal quotations and citation omitted); s ee also Pamintuan , 192 F.3d 378 (upholding dismissal of state law

discrimination claims in view of immunity); Bender v. Subu rban Hosp., Inc ., 758 A.2d 1090 (Md. Ct. Spec. App. 2 000) (requiring hospital’s decisi on to be supported by only objective reasonableness despite cl aims of sex discrimination); Brinton , 973 P.2d 956 (maintaining limited and deferent ial judicial review while a ddressing physician’s claims of bias).8 The majority casually disregards Mahmoodian with a talismanic reference to “public policy” without citi ng so much as a single case where a court has extinguished a hospital’s immunity for privileges or staff appointments simply because the physician alleged a common law or statutory retaliation or discrimination claim. In fact, the Fahlen case cited by the majority expressly refused to resolve that precise issue: “The substantive effect of [the immunity pr ovided by the] H[ealth] C[are] Q[uality] I[mprovement] A[ct] on section 1278.5’s whis tleblower protection for hospital staff physicians was not raised be low, was not included in defe ndants’ petition for review, and is beyond the scope of the issu e on which we granted review.” Fahlen v. Sutter Cent. Valley Hosps ., 318 P.3d 833, 8 52 (Cal. 2014).

To be clear, I wholeheartedly suppor t the patient safety goals which the Patient Safety Act of 2001 is designed to fost er. Without question, the safety of patients and quality of care rende red by health care profe ssionals is of critic al importance to the

citizens of this state. In fa ct, it is the paramount importan ce of those goals that compeIs this dissent. In reaching its conclusion, the majority implicitly finds that the immunity provided to hospitals for privile ges and staff appointments is at odds with those goals and must therefore give way. As expressly recogni zed by the majority of states having such immunity, limited judicial review of such deci sions exists such as to “vest[] [hospitals] with wide managerial di scretion, to be used to elevate hospital st andards and to better

medical care .” Hurwitz , 103 A.3d at 296 (emphasis added ). As such, both the Patient Safety Act and Mahmoodian share a common, critically important goal: patient safety9 and quality assurance. By b lithely dismissing the latter in fa vor of the former under the dubious facts of this case and without fully considering the effect such holding may have on these goals, the majority has seriously jeopardized patient sa fety. Sadly, the majority does so for the negligible purpose of allowi ng a lone physician, who indisputably failed to comply with the hospital by-laws, to leverage th e hospital with a separation-induced financial dispute. Accordingly, I respectfully dissent.