UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

THOMAS R. WIETERS, MD; JOHN 

DOE, and others similarly situated,

Plaintiffs-Appellants,

v.

ROPER HOSPITAL, INCORPORATED, a/k/a  No. 01-2433 CareAlliance Health Services, d/b/a

Roper Care Alliance; CARE

ALLIANCE HEALTH SERVICES,

INCORPORATED; CHIP NARAMORE;

SALLY DOE,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of South Carolina, at Charleston.

C. Weston Houck, District Judge.

(CA-01-2082-2-12)

Argued: December 5, 2002

Decided: February 27, 2003

Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Donald Edward Jonas, COTTY & JONAS ATTORNEYS, Columbia, South Carolina, for Appellants. James Joseph Hin-
chey, Jr., HINCHEY, MURRAY & PAGLIARINI, L.L.C.,

Charleston, South Carolina, for Appellees. ON BRIEF: Mary J. Murray, HINCHEY, MURRAY & PAGLIARINI, L.L.C., Charleston,

South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Dr. Thomas R. Wieters, the plaintiff-appellant, is a surgeon in

Charleston, South Carolina, and was until recently a member of the

staff at Roper Hospital, Inc., a private non-profit institution. This case

stems from Roper Hospital, Inc.’s suspension of Dr. Wieters’s privileges in response to what the hospital terms his "disruptive behavior."

When Dr. Wieters sued Roper Hospital, Inc. and related defendants

(collectively, "Roper" or "the hospital") over his suspension, Roper

raised as a defense the immunity granted to hospitals under the Health

Care Quality Improvement Act (HCQIA), 42 U.S.C. § 11101 et seq.

The district court granted summary judgment to the hospital on

immunity grounds, and we affirm. 

I.

Sometime prior to January 1999 Roper became affiliated with

CareAlliance Health Services, Inc. Thereafter, according to Dr.

Wieters, there was a decline in the quality of patient care at Roper.

Dr. Wieters frequently expressed his dissatisfaction in an angry and

disruptive manner. No specific incidents are described in the record

provided to us, but at oral argument in district court, Dr. Wieters conceded the accuracy of an affidavit calling his behavior disruptive. The

administration at Roper became aware of this conduct and initially

attempted what it calls "collegial intervention." When this did not

solve the problem, the hospital in January 1999 appointed an ad hoc

committee to conduct a formal inquiry. 

2 WIETERS v. ROPER HOSPITAL, INC.
In July 1999 the ad hoc committee interviewed Dr. Wieters, who

was not allowed to have counsel present or to call witnesses. The

committee made recommendations to the Medical Executive Committee (MEC). An affidavit from Dr. Steven Shapiro, president of the

Medical Staff at the hospital, refers to a letter from Dr. Samuel

Hazell, chair of the ad hoc committee, that takes a harsh view of Dr.

Wieters’s behavior, although the letter itself is not in the joint appendix. A document that appears to be the minutes of the ad hoc committee’s interview of Dr. Wieters suggests that he had some reason to be

angry or frustrated about patient care at the hospital, though it deems

his reactions "inappropriate." 

Following Dr. Wieters’s interview with the ad hoc committee, the

MEC had a hearing, at which Wieters appeared. According to Wieters

(but undocumented in the appendix), the MEC included at least one

doctor who was Wieters’s "economic competitor." On October 18,

1999, the MEC placed Wieters on probation, requiring that he fulfill

various conditions, including seeing a psychiatrist and ceasing his disruptive behavior. On November 15, 1999, Wieters requested a hearing

on the MEC’s probation decision. The Roper bylaws provide for this

hearing, which appears designed to meet the requirements of the

HCQIA, discussed below. The hospital was apparently slow in

responding to the hearing request, because on December 29, 1999,

Wieters’s then-lawyer wrote to the hospital reiterating the request. As

of January 6, 2000, the hospital still had not answered. On that date,

in response to new disruptive incidents by Dr. Wieters that violated

the conditions imposed by the MEC, the hospital summarily suspended his clinical privileges. A summary suspension is authorized by

the hospital bylaws to "safeguard and protect patient welfare or to

protect the best interests of the Hospital." Wieters immediately

requested a hearing on the summary suspension. The hospital in its

initial reply agreed to schedule a hearing, but referred only to his previous request for a hearing on the MEC’s probation decision, not to

the summary suspension. 

Dr. Wieters subsequently received notice that a second ad hoc

committee had been formed to consider the summary suspension. The

notice included a description of the hearing procedure, the membership of the committee, and a list of witnesses. The committee held an

evidentiary hearing on January 28, 2000, at which Dr. Wieters was

WIETERS v. ROPER HOSPITAL, INC. 3
represented by counsel. The second committee also included one or

more of Dr. Wieters’s economic competitors, but this time he

expressly waived any objection on this ground. Before the hearing, in

a non-binding recommendation to the MEC, the second ad hoc committee concluded that summary suspension was an inappropriate sanction. Following the hearing, the MEC voted to lift the summary

suspension on the condition that Dr. Wieters voluntarily discontinue

the use of his privileges until he had seen a psychiatrist and had begun

anger counseling. The conditions were to be met within thirty days.

Dr. Wieters agreed on February 4, 2000, and the summary suspension

was lifted. 

There followed a dispute about the parameters of Dr. Wieters’s

agreement to the conditions. The parties disagreed about whether Dr.

Wieters’s voluntary relinquishment of privileges was to be reported

to the National Practitioners Database (NPDB). Apparently, such a

report would have severe professional consequences for Dr. Wieters,

although neither side has described them for us. Dr. Wieters believed

that he had agreed to the conditions on the understanding that such

a report would not be made, while the hospital claims to have made

no such commitment. The parties further disagreed over the selection

of the psychiatrist. When Dr. Wieters failed to fulfill the conditions

within thirty days, the hospital reported the voluntary relinquishment

to the NPDB. Dr. Wieters than rescinded his relinquishment, and the

summary suspension went back into effect. It remains in place, apparently. 

Dr. Wieters sued the hospital in South Carolina court, asserting that

the suspension violated his rights under state law and the federal constitution. When the hospital removed the case to federal court, Dr.

Wieters voluntarily dismissed his federal claims. The district court

exercised its discretion to retain jurisdiction over the state claims

because the hospital asserted a defense under the HCQIA, leaving

state and federal issues intertwined. At a hearing on July 31, 2001, the

district court asked the parties whether a November trial date would

be too soon. Dr. Wieters’s lawyer replied, "The sooner, the better."

At the urging of the district court, the parties agreed to pursue mediation. The court said it would "schedule the case for discovery,"

although no scheduling order was ever entered. A trial was set for

early November 2001. In the several months following the July hear4 WIETERS v. ROPER HOSPITAL, INC.
ing, the parties engaged in intense mediation and then went into discovery, which triggered certain motions to compel and for protective

orders. In October 2001 Dr. Wieters’s second lead counsel withdrew,

leaving co-counsel in charge. The hospital moved for summary judgment in early October, and a few days before the hearing on that

motion, Dr. Wieters requested an extension of time to respond. Without ruling on Dr. Wieters’s motion for more time, the district court

granted summary judgment for Roper. This appeal followed. 

II.

Dr. Wieters raises several issues on appeal. We first address his

arguments alleging procedural errors in the district court, and then we

move to his argument that the court improperly granted summary

judgment to Roper on the ground that it was immune from Dr.

Wieters’s suit under the HCQIA. 

A.

Dr. Wieters contends that the district court failed to adhere to the

provisions of Fed. R. Civ. P. 16(b), 56(f), and 41(a). Wieters’s complaints mainly concern his attempt to get more time to respond to the

motion for summary judgment.

1.

Dr. Wieters first objects because the district court did not enter a

formal scheduling order even though Fed R. Civ P. 16(b) says that the

district court "shall" enter such an order. Wieters’s argument overlooks what the district court did to manage his case. The court

allowed discovery to proceed and scheduled an early trial date at Dr.

Wieters’s request. In addition, the court promptly scheduled hearings

on motions as required. In our view, the absence of a formal scheduling order did not prevent the orderly development of the case. 

2.

Roper filed its motion for summary judgment on October 4, 2001.

On October 24 Dr. Wieters filed a "Motion to Extend Time To FurWIETERS v. ROPER HOSPITAL, INC. 5
ther Respond To [Defendants’] Motion For Summary Judgment." We

construe this as a motion under Fed. R. Civ P. 56(f), which provides

that summary judgment proceedings should be continued when the

party opposing summary judgment "cannot for reasons stated present

by affidavit facts essential to justify the party’s opposition . . . ." The

district court never explicitly ruled on the motion. Instead, it granted

summary judgment to Roper after a hearing on November 2, 2001.

The grant of summary judgment was an implicit denial of the Rule

56(f) motion, and we review that denial for abuse of discretion. Gasner v. Bd. of Supervisors, 103 F.3d 351, 362 (4th Cir. 1996). 

A party must support a Rule 56(f) motion by "specifying which

aspects of discovery required more time to complete," Nguyen v. CNA

Corp., 44 F.3d 234, 242 (4th Cir. 1995), and how the facts developed

in that time will be useful in resisting summary judgment. See Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 245-46 (4th

Cir. 2002); 11 James Wm. Moore et al., Moore’s Federal Practice,

¶ 56.10[8][d] (3rd ed. 2000). Although no affidavit accompanied Dr.

Wieters’s motion, that is not necessarily fatal. Harrods, 302 F.3d at

244-45. The motion sought an extension (and more time to complete

discovery) because (1) valuable time had been consumed in a lengthy

mediation process, (2) there had been only a short time allowed for

discovery, and (3) there had been some difficulties in dealing with the

opposing side. But neither the motion nor any of the other motions

filed simultaneously give any hint of what additional facts might have

been gained through more discovery or how such facts might have

helped Dr. Wieters carry his burden in opposing summary judgment.

The motion for more time does refer to a memorandum filed in support, but we assume it would not be helpful to us on this issue because

it has not been included in the joint appendix. On the record before

us, we cannot say that the district court abused its discretion in

implicitly denying Dr. Wieters’s motion for an extension of time. 

3.

Dr. Wieters further argues that the district court, as an alternative

to entering summary judgment against him, should have dismissed his

complaint without prejudice under Rule 41(a). Wieters filed a Rule

41(a) motion for voluntary dismissal on October 22, 2001, shortly

before the scheduled trial date. We review the denial of a motion for

6 WIETERS v. ROPER HOSPITAL, INC.
voluntary dismissal for abuse of discretion. Davis v. USX Corp., 819

F.2d 1270, 1273 (4th Cir. 1987); Paturzo v. Home Life Ins. Co., 503

F.2d 333, 335 (4th Cir. 1974). In deciding a Rule 41(a) motion, a district court should consider the following, nonexclusive factors: "[T]he

opposing party’s effort and expense in preparing for trial, excessive

delay and lack of diligence on the part of the movant, . . . insufficient

explanation of the need for a dismissal, . . . [and] the present stage

of litigation." Phillips USA, Inc. v. Allflex USA, Inc., 77 F.3d 354, 358

(10th Cir. 1996) (internal citations and quotation marks omitted).

Here, it is unclear which side is responsible for Dr. Wieters’s inability

to complete discovery in time, although it should be noted that his

lead counsel withdrew rather late in the game. It is unquestioned,

however, that he assented to, even encouraged, the compressed discovery schedule. This, coupled with the lateness of his motion for a

voluntary dismissal and his failure to explain why such a dismissal

would be of benefit to his case, provides ample justification for the

district court’s decision. The court did not abuse its discretion in

denying Dr. Wieters’s motion for a voluntary dismissal. 

B.

The district court granted the hospital summary judgment on the

ground that its actions were immunized from suit by the HCQIA. Dr.

Wieters challenges this decision. The HCQIA provides that "professional review bodies," and their members and staff, taking "professional review actions" "shall not be liable in damages" under state or

federal law, as long as the actions satisfy certain conditions. 42 U.S.C.

§ 11111(a)(1). There is no controversy in this case that the Medical

Executive Committee is a professional review body. A professional

review action is one that is "based on the competence or professional

conduct of an individual physician" and "affects . . . adversely" the

physician’s clinical privileges. 42 U.S.C. § 11151(9). The enumeration of issues presented in Dr. Wieters’s brief includes the question

of whether the summary suspension was a "professional review

action," but he does not argue the issue in the brief. Thus, the only

substantive question before us is whether Roper fulfilled the Act’s

requirements and earned its immunity. To be protected by the

HCQIA, an action must be taken: 

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

WIETERS v. ROPER HOSPITAL, INC. 7
(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. § 11112(a). 

There is a rebuttal presumption that professional review actions

have met these standards. Id. This creates an unusual summary judgment standard. A plaintiff suing over such an action must prove that

the action failed to fulfill the statute’s requirements. Thus, the defendant is entitled to summary judgment unless "a reasonable jury, viewing all facts in a light most favorable to [the plaintiff], could conclude

that he had shown, by a preponderance of the evidence, that [the]

action[ ] fell outside the scope of section 11112(a)." Gabaldoni v.

Washington County Hospital Assoc., 250 F.3d 255, 260 (4th Cir.

2001). 

Dr. Wieters challenges Roper’s fulfillment of two of these requirements. He claims that the action was taken not in the reasonable belief

that it would further quality care, but to halt his complaints about the

declining standards of care at the hospital. He further claims that the

process by which he was suspended was not fair and did not comply

with the requirements of the Act. 

Dr. Wieters does not contest the evidence of his outbursts and ill

treatment of nurses. To bolster his claim that he was fired because he

was a whistleblower, he submits evidence that conditions at the hospital were substandard. This evidence is irrelevant. Regardless of the

merit of his complaints, the hospital presents uncontested evidence

that he expressed them in a disruptive and unprofessional manner.

The hospital relies on the affidavit of Dr. Steven Shapiro, president

8 WIETERS v. ROPER HOSPITAL, INC.
of the Medical Staff at the hospital. The affidavit notes that Wieters

engaged in seventeen instances of "disruptive conduct," but gives no

specifics. It quotes Dr. Samuel Hazell, the chair of the first ad hoc

committee, generically describing Wieters’s "paroxysm[s] of rage"

and "unprofessional behavior." It is not difficult to see that the hospital would be justified in the belief that this conduct was detrimental

to the quality of the health care it provided. 

Dr. Wieters presents his own evidence from Dr. Hazell. In a letter

to the psychiatrist selected to consult with Dr. Wieters, Dr. Hazell

complained about the process by which his committee made its

inquiry, and he wrote that Wieters is a good physician. In his brief Dr.

Wieters refers to a statement in which Dr. Hazell says that the process

was the result of a vendetta against Wieters, but it is not clear whether

this evidence was in the summary judgment record. In any case, Dr.

Wieters’s evidence is far from sufficient to overcome the presumption

in favor of the hospital. A reasonable jury could not conclude that Dr.

Wieters has shown by a preponderance of the evidence that Roper

was motivated to take its action by something other than the reasonable belief that suspending him would improve health care at the hospital. Cf. Clark v. Columbia/HCA Info. Servs., 25 P.3d 215 (Nev.

2001) (denying HCQIA immunity to defendants when plaintiff had

expressed concerns about standards of care in a nondisruptive manner, by making disclosures to outside authorities). 

Dr. Wieters’s challenge to Roper’s compliance with § 11112(a)(3),

the procedural requirement, is essentially that the hospital failed to

follow its own bylaws. Nothing in the HCQIA makes immunity

depend on adherence to bylaws, though the act does include a "safe

harbor" provision, 42 U.S.C. § 11112(b). If a hospital follows the procedures laid out in § 11112(b), it is deemed to have satisfied

§ 11112(a)(3). Id. The Roper bylaws are designed to match the safe

harbor provisions. Even if the procedure employed to handle Dr.

Wieters’s dispute strayed from the letter of the bylaws, however, it

still meets the immunity requirements if it was "fair to the physician

under the circumstances." 42 U.S.C. § 11112(a)(3). Dr. Wieters

argues that he never received a hearing on his probation, because the

January 2001 hearing concerned the summary suspension. He also

argues that although he waived his objection to the presence of economic competitors on the second ad hoc committee, it was improper

WIETERS v. ROPER HOSPITAL, INC. 9
for the MEC, which made the ultimate decision on his suspension, to

include such competitors. Although Dr. Wieters has pointed out parts

of the process that did not hew strictly to the bylaws and the safe harbor provisions, he has presented nothing that would lead a reasonable

jury to find by a preponderance of the evidence that the hospital

treated him unfairly under the circumstances. 

Overall, Dr. Wieters failed to rebut the presumption of the HCQIA

that the hospital complied with its requirements. Roper is therefor

immune from damages suits relating to Dr. Wieters’s suspension, and

the district court properly granted the hospital summary judgment on

all of Dr. Wieters’s claims for damages. 

C.

Two of the claims in Dr. Wieters’s complaint were for injunctive

relief. He pursued these claims before the district court, which denied

his request for a preliminary injunction, dissolved a restraining order

put in place by the South Carolina court, and appeared to have

granted summary judgment as to the equitable claims. Although Dr.

Wieters’s appellate brief notes in passing that the HCQIA does not

provide immunity against claims for equitable relief, he never argues

that summary judgment was improper as to those claims. We therefore conclude that his claims for injunctive relief have been abandoned. Cf. Imperial v. Suburban Hosp. Assoc., Inc., 37 F.3d 1026,

1031 (4th Cir. 1994) (claim for injunctive relief never prosecuted in

district court is abandoned). 

* * *

The judgment of the district court is affirmed.

AFFIRMED

10 WIETERS v. ROPER HOSPITAL, INC.