IN THE SUPREME COURT OF A PPEALS OF WEST VIRGINIA September 2017 Term

No. 16-0834

CAMDEN-CLARK MEMORIAL

HOSPITAL CORPORATION, Third-Party Defendant Below, Petitioner

v. TUAN NGUYEN, M.D., Defendant and Third-Part y Plaintiff Below, Respondent

Appeal from the Circuit Court of Wood County The Honorable Jeffre y B. Reed, Judge Case No. 14-C-2787
AFFIRMED

Submitted: October 11, 2017

Filed: November 13, 2017

Thomas J. Hurney, Esq. Thomas E. Scarr, Esq. Laurie K. Miller, Esq. St even L. Snyder, Esq. Jackson Kelly PLLC Sarah A. Walling, Esq. Charleston, West Virginia Jenkins Fenstermaker PLLC and Huntington, West Virginia David R. Stone, Esq. Attorneys for Respondent Jackson Kelly, PLLC Morgantown, We st Virginia Attorneys for Petitioner 

### FILED November 13, 2017 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIAJUSTICE WORKMAN delivered th e Opinion of the Court. JUSTICE WALKER, deeming herself disqualified, did not participate in the decision of this case. JUDGE HUTCHISON sitting by temporary assignment. CHIEF JUSTICE LOUGHRY dissents and reserves the right to file a dissenting opinion. JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.i SYLLABUS BY THE COURT
1. “The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint unl ess it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson , 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed. 80 (1957).” Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W.Va. 530, 2 36 S.E.2d 207 (1977).

2. Although courts have limited jurisdiction to review purely administrative decisions of private hospitals, the courts of this state do have jurisdiction to hear cases alleging torts, breach of co ntract, violation of hos pital bylaws or other actions that contravene public policy.1 WORKMAN, Justice: Respondent Dr. Tuan Nguyen (“Physician”) filed a third-party complaint against Petitioner Camden-Clark Memorial Ho spital Corporation (the “Hospital”) and alleged it discriminated and retaliated agains t him for reporting patient safety concerns; he alleged violations of the West Virg inia Patient Safety Act (the “Act”), 1 retaliatory discharge, and intentional infliction of emo tional distress. The Hospital filed a motion to dismiss Physician’s claims under Rule 12(b)(6 ) of the West Virginia Rules of Civil Procedure. The Hospital contended that becau se Physician’s claims are linked to its decision to not reappoint him to its medica l staff, it enjoyed qualified immunity as afforded by this Court in Mahmoodian v. United Hospital Center, Inc. , 185 W.Va. 59, 404 S.E.2d 750 (1991). The circ uit court denied the Hospital’s motion, and it appealed.

This Court finds that Physician’ s claims are distinguishable from Mahmoodian , and sufficient to surviv e the Hospital’s Rule 12(b )(6) motion. We therefore affirm the order of the circuit court.

I. FACTS AND PROCED URAL HISTORY In 2008, Physician completed his re sidency and earned his license to practice medicine in West Virginia. Physic ian was employed by Camd en-Clark Physician Corporation (the “Cor poration”) as a general surgeon fr om 2008 until he was terminated in 2013. The Corporation oper ates a physicians’ group who lly owned by Camden-Clark

1 See W.Va. Code §§ 16-39-1 to -7 (2016).2 Health Services, Inc. (“CCHS”). Physician practiced medicine at the Hospital, which does business as Camden Clark Medical Center in Parkersburg, West Virginia. These corporate entities are closely related an d governed by the same individuals. 2

For much of his employment, Physician was the only genera l surgeon at the Hospital. He maintained a demanding schedul e with his own patients, and was also on call for other physicians, including a vascul ar surgeon. Physician alleges that this arrangement troubled him becau se he did not have deep-rooted expertise in vascular surgery and that he repeatedly expressed patie nt safety concerns about this situation to administrators. Physician also alleges that in addition to raising his own concerns, he supported Dr. Roman Petrov, a thoracic surg eon, who clashed with administrators over patient safety concerns incl uding allegations of inadequa te staffing, contaminated instruments, and insufficient equipment and supplies.

Pursuant to his employment agreement with the Corporation, Physician had to maintain appointm ent to the medical staff of the Hospital. 3 It is undisputed that one of

2 David McClure is the President of both the Hospital and CC HS; Kathy Eddy is the President of the Corporation, and the Secretary/Director of both the Hospital and CCHS; Todd A. Kruger is Vice-President fo r both the Hospital and CCHS, and General Counsel for the Corporation. Michael King was President and CEO of CCHS in 2013, when he directed Rick Hamilton, Executive Director of the Corporation, to terminate Physician’s employment w ith the Corporation.

3 Under the terms of his employment agreem ent, Physician was required to “meet and continue to meet the E ligibility Criteria and other re quirements for active medical staff appointment and re-appointment set fort h in the Medical Staff Bylaws, Credentials (continued . . .)3 the eligibility criteria for Physician’s appoint ment to the medical staff was that he become board certified in his primary area of practice within five years from the date of completion of his residency. 4 Thus, Physician faced a June 30, 2013, deadline to become board certified, although the Hospital’s Cred entials Policy also provided a procedure whereby the Hospital could waive this requirement.

Board certification is a two-part pr ocess; Physician passed the Qualifying Examination (the written portion) but had not yet taken the Certifying Examination (the oral portion) when he and the Corporation were negotiating his most recent employment agreement in 2013. Ad ministrators with the Corporati on told Physician that another general surgeon would be added to the Ho spital’s staff. With this understanding,

Policy and/or other policies, pr ocedures and rules and regula tions of the Hospital and its medical staff from time to time.”

4 The Hospital’s medical staff bylaws govern the eligibility criteria for appointment. The bylaws re quire that physicians be board certified in their primary area of practice at the Hospital. Those applicants who are not board certified at the time of application but who have completed their residency or fellowship training within the last five years will be eligible for Medical Staff appointment. However, in order to remain eligible, those applicants must achieve board certification in their primary area of practice within five (5) years from the date of completion of their re sidency or fellowship training. (This requirement is applicable only to those individuals for initial staff appointment after th e date of adoption of this Policy. All individuals appointe d previously will be governed by the board certification requirements in effect at the time of their appointments[.]).4 Physician planned to take so me time off to complete his board certification. Under the new agreement, effective July 1, 2013, Physic ian received a pay raise, and was permitted to practice on the weekends at Marietta Memorial Hospital in Ohio. The new employment agreement be came effective one day after the fifth anniversary deadline for Physician to become board certified.

In spite of his new employment agreement with the Corporation, the Hospital declined to review Physician’s appli cation for reappointment to its medical staff in the fall of 2013, purportedly because he failed to obtain board certification. On October 22, 2013, Physician sent a letter to the Hospital’s Medical Executive Committee requesting “temporary privilege” at the Hosp ital. Physician indi cated that he was scheduled to take the certifica tion exam in March of 2014.

Then, just months after it renewe d his employment agreement, the Corporation terminated Physic ian in November 2013, purp ortedly for his failure to maintain membership on the medical staff of the Hospital . Physician alleges that when the Corporation’s administrator terminated hi m, he told Physician that the Corporation would not seek to enforce th e non-competition portion of th eir employment agreement or seek reimbursement for his “tail coverage,” a policy of medical professional liability insurance.5 Following his termination, Physicia n began working with a physicians’ group at Marietta Memorial Hospital. In Ma rch of 2014, the American Board of Surgery certified Physician in surgery; this board ce rtification was less than 180 days after the Corporation gave notice of its intent to terminate his employment contract.

The Corporation initiated the instant ac tion in October 2014 when it filed a claim against Physician the year after his te rmination. The Corporation alleged Physician breached the employment agreem ent when he failed to purch ase a tail policy of medical professional liability insurance. The Corporation sought $67,022 in damages, the cost it incurred by purchasing this policy.

Physician answered the Corporation’s complaint and asserted that it was estopped from pursuing its breach of contract claim because administrators told him the Corporation would not seek an y payments from Physician, including the pa yment of the tail coverage. Physician stated that by entering into the 2013 employment agreement with full awareness of his board certification stat us, the Corporation waived any requirement that he achieve board certifica tion within five years of his in itial hire date. Physician also filed five counterclaims incl uding breach of contract, bre ach of the covenant of good faith, violations of the Act, and retaliatory discharge, as well as a claim for intentional infliction of emotional distress. Physician alle ged that the Corporation’s stated reason for his termination was a pretext for retaliation; soon after entering into this employment agreement, he “incurred the wrath” of the Corporation and the Ho spital administrators6 “due to his expressions of concern regardi ng patient safety and his friendship with and support of Dr. Roman Petrov.” 5

Physician amended his counterclaim ag ainst the Corporation to include a third-party complaint against th e Hospital, and its parent corporation CCHS, which is the subject of this appeal. 6 He filed claims against the Hosp ital for violations of the Act, retaliatory discharge, and intentional inflicti on of emotional distress. In his pleadings, Physician referred to the Corporation, the Hospital, and CCHS collectively as “CamdenClark” “[b]ecause of their shared administra tion, facilities, support staff and inextricably intertwined operations[.]”

Physician alleged that he did not ava il himself of appropriate administrative remedies because the Camden-C lark entities represented that he would not be required to pay for tail coverage and would be relie ved of any obligation under a noncompetition clause. He also alleged the Corporation, the Hospital and/or CCHS breached the

5 Dr. Petrov also lost staffi ng privileges at the Hospital in the fall of 20 13, and that matter is in litigation. In his brief before th is Court, Physician re ferences a deposition taken in Dr. Petrov’s lawsuit. Specifically, he refers to the testim ony of Rick Hamilton, former Executive Director of the Corpora tion, wherein Mr. Hamilton discussed the circumstances surrounding the decision to te rminate Physician from the Corporation and deny his staffing privileges at the Hospital. In its reply brief, the Hospital did not object to these references. Nevertheless, this Court does not rely on this information to reach our resolution of this appeal because our review is limited to the sufficiency of Physician’s third-party complaint.

6 CCHS is not a party to this appeal.7 employment agreement when it de prived him of the peer revi ew process described in the employment agreement.

In May of 2016, Physicia n filed a motion to compel discovery after the Corporation, the Hospital, and CCHS refused to permit any depositions of their employees on the basis of qualified privilege.

In response, the Hospital filed a Rule 12(b)(6) motion to dismiss Physician’s claims and/or for summary ju dgment. The Hospital argued that because Physician’s claims touch on the issue of its criteria for eligibility fo r appointment to its medical staff, it must be afforded qualified i mmunity pursuant to Mahmoodian

. 7 As such, the Hospital maintained th at the circuit court should only review: 1) whether the Hospital’s medical staff bylaws and credentials policy provided for a fair procedure; and 2) whether that procedure was followed. The Hospital claimed it never reviewed Physician’s application because it was undisput ed that he failed to meet the threshold eligibility criteria.

In June of 2016, the circuit court held a hearing on the parties’ motions. It denied the Hospital’s motion to dismiss and found that Physician’s claims were not prohibited by Mahmoodian . The court further held that Physician had “the right to

7 See infra section III B of this opinion fo r a discussion of syllabus point one of Mahmoodian , 185 W.Va. at 60, 4 04 S.E.2d at 751.8 propound discovery, to obtain full responses to his discovery requests, and to depose witnesses who may have relevant knowledge , subject to limitations set out by law.” Moreover, it held that “[r]ega rding the issue of interrela tedness of the Camden-Clark parties, this Court has already ruled that th e doctor is to be given an opportunity to explore the possibility that those are not sepa rate entities, but are all interrelated.” The circuit court deferred ruling on the Ho spital’s motion for summary judgment. 8

II. STANDARD OF REVIEW It is important to emphasize that this is not an administrative appeal following an evidentiary hearin g where a physician is claiming that violations of fair procedure or lack of substantial evidence requires a court to set aside the hospital’s decision to deny reappointment of staffing privileges. If it were such a case, our standard

8 Consequently, the circuit court did no t reach the Hospital’s argument that Physician released it from all liability for acti ons involving credenti aling decisions when he signed a release of information form a nd consented to the Hospital’s bylaws. The Hospital acknowledged below th at the circuit court had to look beyond the pleadings to rule on this issue. Before this Court, the Hospital raised this issue of waiver as its second assignment of error, although it devotes only a page a nd a half to this argument. We decline to address it as our review at this stage of th e proceeding is limited to Physician’s thirdparty complaint. “A Rule 12 (b)(6) motion to dismiss test s the legal sufficiency of a complaint, and an inquiry as to the legal sufficiency is essen tially limited to the content of the complaint.” State v. Bayer Corp. , 32 So.3d 496, 502 (Miss. 2010) (quotation and citation omitted).9 of review would be highly favorable to the Hospital. 9 But Physician, a doctor who performed surgeries at the hospital for fi ve years and was never the subject of disciplinary action, did not receive a hearing before the Hospital denied his application for reappointment to its medical staff.

This appeal arrives here by way of an order denying th e Hospital’s Rule 12(b)(6) motion to dismiss Physician’s lawsuit. In reviewing such motions, our inquiry is limited to whether Physician has put forth claims that, if proven, are factually and legally sufficient to sustain a favorable judgment. 10 As no real discovery has taken place, we look to Physician’s pleadings and resolve conf licts and inferences in the record in favor of him.

We examine de novo the denial of a motion to dismiss under Rule 12(b)(6) of the West Virginia Ru les of Civil Procedure. Citibank, N.A. v. Perry , 238 W.Va. 662, 664, 797 S.E.2d 803, 805 (2016).

9 See Mahmoodian , 185 W.Va. at 65, 404 S.E.2d at 756 (discussing limited scope of judicial review when medical staff challenges private hospital’s disciplinary proceeding).

10 Our review of the case is limited to the sufficiency of the complaint; thus, we must accept as true all well-pled facts and must draw all reasonable inferences in favor of Physician. State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc. , 194 W.Va. 770, 776 n.7, 461 S.E.2d 516, 522 n.7 (1995).10 In order to defeat a motion to dismiss, a plaintiff must allege facts that, if accepted as true, are sufficient to state a clai m. This Court has prev iously stated that “[t]he purpose of a motion under Rule 12(b)( 6) of the West Virginia Rules of Civil Procedure is to test the suffici ency of the complaint. A trial court considering a motion to dismiss under Rule 12(b)(6) must liberally cons true the complaint so as to do substantial justice.” Cantley v. Lincoln Cty. Comm’n, 221 W.Va. 468, 470, 655 S.E.2d 490, 492 (2007). “Since the preference is to decide cases on their meri ts, courts presented with a motion to dismiss for failure to state a claim construe the complaint in th e light most favorable to the plaintiff, taki ng all allegations as true.” Sedlock v. Moyle, 222 W.Va. 547, 550, 668 S.E.2d 17 6, 179 (2008). Thus, in syllabus point three of Chapman v. Kane Transfer Co., 160 W.Va. 530, 236 S.E. 2d 207 (1977), this Court held that “[t]he trial court, in appraising the sufficiency of a co mplaint on a Rule 12(b)(6 ) motion, should not dismiss the complaint unless it appears beyond d oubt that the plaintiff can prove no set of facts in support of his claim wh ich would entitle him to relief. Conley v. Gibson , 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed. 80 (1957).”

III. DISCUSSION The Hospital contends that the circ uit court erred in denying its motion to dismiss, or in the alterna tive, in not granting it summa ry judgment, because under Mahmoodian , it is immune from review of its medical staff appointment decisions beyond a review of whether the Hospital was in compliance with its bylaws. Physician counters that the limited immunity afforded by Mahmoodian does not extend to shield the11 Hospital from illegal actions, such as retaliator y discharge in violation of the Act. In order to put these arguments in context, we begin by summarizing Physician’s claims.

A. Physician’s Claims Physician alleges three causes of ac tion against the Hospital. He first alleges that the Hospital violated the Act. See W.Va. Code §§ 16-39-1 to -7. The Legislative purpose of the Act is to “protect patients by pr oviding protections for those health care workers with whom the patient ha s the most direct contact.” W.Va. Code § 16-39-2(b). 11 The Act provides that:

11 West Virginia Code § 16-39-2 r eads in its entirety as follows: (a) The Legislature finds that: (1) Patients receiving medical care in this state need stable and consistent care fro m those providing health care services at every level; (2) Dedicated health care workers are instrumental in providing quality patient care services and ensuring that the patient’s best interests ar e at all times protected; (3) During the course of caring for their patients, many health care workers often obse rve instances of waste or wrongdoing that detrimentally a ffect both the patients and the health care facility; (4) Health care workers w ho observe such matters are often reluctant to report the waste or wrongdoing to the administrator of the health care facility or other appropriate authority for fear of retaliatory or discriminatory treatment through termination, demotion, reduction of time, wages or benefits or other such actions; and (5) The quality of availabl e health care will suffer in this state if dedicated health care workers are discouraged (continued . . .)12 (a) No person may retaliate or discriminate in any manner against any health care worker because the worker, or any person acting on be half of the worker: (1) Makes a good faith report, or is about to report, verbally or in writing, to the health care entity or appropriate authority an instance of wrongdoing or waste[;] (2) Advocated on behalf of a patient or patients with respect to the care, services or conditions of a health care entity; (3) Initiated, cooperated or otherwise participated in any investigation or proceedin g of any governmental entity relating to the care, services or conditions of a health care entity.
Id . § 16-39-4.

Physician alleges that the Hospital vi olated the Act when it discriminated and retaliated against him in re sponse to his good faith reports “on behalf of patients with respect to the care, services and conditions of Camden-Clark’s hea lth care facilities.” There is no dispute that the Hospital is a health care entity 12 and Physician is a health care

from reporting instances of waste or wrongdoing that affect the quality of health care delivery in this state. (b) Consequently, the Legislat ure intends by enacting this article to protect patients by pr oviding protections for those health care workers w ith whom the patient has the most direct contact.

12 See W.Va. Code § 16-39-3 (6) (“‘Health care entity’ includes a health care facility, such as a hospital , clinic, nursing facility or ot her provider of health care services.”) (emphasis added).13 worker 13 within the meaning of the Act. The Act provides that “[a]ny health care worker who believes that he or she has been retaliate d or discriminated agai nst” may file a civil action. Id . § 16-39-6(a). And a court, in renderin g a judgment for a plaintiff in an action brought under the Act, can award a variety of remedies including reinstatement, actual damages, as well as reasonable attorneys’ fees and costs. Id . § 16-39-6(b).

As his second cause of action, Physic ian alleged retaliatory discharge. In support of this count, Physic ian alleged that the Corpora tion, the Hospital, and CCHS acted in full collaboration and terminated his employment in retaliation for his complaints about patient safety and support of Dr. Petrov’s complaints of patient safety. 14 To identify a substantial public policy, we look “to estab lished precepts in [the State’s] constitution,

13 See Id . § 16-39-3 (7) (“‘Health care worke r’ means a person who provides direct patient care to patients of a health care entity and who is an employ ee of the health care entity, a subcontractor or independent contra ctor for the health care entity, or an employee of such subcontractor or independen t contractor. The term includes, but is not limited to, a nurse, nurse’s ai de, laboratory technician, physician, intern, resident, physician assistant, physical therapist or other such pers on who provides direct patient care.”) (emphasis added).

14 This Court held in the syllabus of Harless v. First National Bank in Fairmont, 162 W.Va. 116, 246 S.E.2d 270 (1978), that [t]he rule that an employer has an absolute right to discharge an at will employe e must be tempered by the principle that where the em ployer’s motivation for the discharge is to contravene some substantial public policy principle, then the employer may be liable to the employee for damages occasioned by this discharge. Accord Syl. Pt. 2, Stanley v. Sewell Coal Co., 169 W.Va. 72, 285 S.E.2d 679 (1981).14 legislative enactments, legislatively appr oved regulations, and judicial opinions.” Birthisel v. Tri-Cities Health Servs. Corp., 188 W.Va. 371, 377, 424 S.E.2d 606, 612 (1992). Physician relied on the substantial public policy articulated in the Act. See W.Va. Code § 16-39-2.

In his third cause of action, Physic ian alleged intentional infliction of emotional distress. 15 Included within the averments s upporting this count were that the conduct of the Corporation, the Hospital, and CCHS toward s Physician “was atrocious, intolerable, and so extreme and outrageous as to exceed the b ounds of decency.”

15 When analyzing an intentional inflic tion of emotional distress claim, also referred to as a tort of outrage claim, in the employment context, this Court has stated that [t]he prevailing rule in distinguishing a wrongful discharge claim from an outr age claim is th is: when the employee’s distress results from the fact of his discharge— e.g., the embarrassment and fina ncial loss stemming from the plaintiff’s firing—rather than from any improper conduct on the part of the employer in e ffecting the discharge, then no claim for intentional inflicti on of emotional distress can attach. When, however, the em ployee’s distress results from the outrageous manner by whic h the employer effected the discharge, the employee may recover under the tort of outrage. In other words, the wrongful discharge action depends solely on the validity of the employer’s motivation or reason for the discharge. Therefore, any other conduct that surrounds the dismissal must be weighed to determine whether the employer’s manner of effecting the discharge was outrageous. Syl. Pt. 2, Dzinglski v. Weirton Steel Corp. , 191 W.Va. 278, 44 5 S.E.2d 219 (1994) holding modified by Tudor v. Ch arleston Area Med. Ctr., Inc. , 203 W.Va. 111, 506 S.E.2d 554 (1997).15 Moreover, he alleged that the co rporate entities “acted with th e intent to inflict emotional distress upon” him “or acted recklessly when it was certain or substantially certain emotional distress would result from their conduct.”

With this backdrop, we turn to the Hospital’s assignment of error.

B. Hospital’s Rule 12(b)(6) Motion The Hospital asserts that it en joys qualified immunity from all of Physician’s claims. It submits that our review here is razo r-thin, one that begins—and ends—with our 1991 decision in Mahmoodian . We disagree.

In Mahmoodian , a private hospital revoked an obstetrician’s staffing privileges for his pattern of disruptive and unprofessional behavior following an evidentiary hearing with full a ppellate review by the hospita l’s board of directors. 185 W.Va. at 62, 404 S.E.2d at 753. He brough t a civil action agains t the hospital and the court granted a permanent injunction that re quired the hospital to reinstate his staff privileges. The private hospital ap pealed and this Court reversed . In this context, we held that a court may review only whether a hosp ital’s medical staff bylaws presented clearly articulated requirements for medical staff a ppointment, and whether the hospital’s refusal to appoint was consistent with those bylaws. See Syl. Pt. 1, Mahmoodian , 185 W.Va. at 60, 404 S.E.2d at 751 (“The decision of a priv ate hospital to revoke, suspend, restrict or to refuse to renew the staff appointment or clinical privileges of a medical staff member16 is subject to limited judicial review to ensu re that there was substantial compliance with the hospital’s medical staff bylaws governing su ch a decision, as well as to ensure that the medical staff bylaws afford basic notice and fair hearing pro cedures, including an impartial tribunal.”).

This Court articulated so und public policy reasons behind our decision in Mahmoodian wherein we conferred limited judicial re view when an individual brings suit challenging a private hospital’ s medical staffing decisions. 16 We recognized that courts

16 We summarized those reasons as follows: The 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 qualificat ions to make such decisions. Furthermore, a private hospita l’s actions do not constitute state action and, therefore, are not subject to scrutiny for compliance with procedural “due process,” which is constitutionally required when there is state action. However, there are basic, common-law pr ocedural protections which must be accorded a medica l staff member by a private hospital in a disciplinary proc eeding which could seriously affect his or her ability to practice medicine. Such basic procedural protections include no tice of the charges and a fair hearing before an impartial tr ibunal. If a private hospital’s medical staff bylaws provide these basic procedural protections, and if the bylaws’ procedures are followed substantially in the particular disciplinary proceeding, a court usually will not interfere with the medical peers’ recommendation and the hospital’s exercise of discretion on the merits. (continued . . .)17 must be reluctant to interfe re in decisions that are gr ounded in hospitals’ areas of expertise. Those compelling interests are larg ely marginalized, however, when a health care worker alleges retaliatory or discrimi natory conduct prohibited by statute under a legislative policy that seeks to safeguard the health and safety of hospital patients. See W.Va. Code § 16-39-2.

In this case, the Hospital mischaracteriz es the nature of Physician’s claims and asks us to ignore the allega tions of retaliation for patient safety complaints. To accept the Hospital’s argument, this Co urt would have to disregard the gravamen of Physician’s claims and don blinders to focus only on the Hospital’s decision to deny Physician’s reappointment application due to his credentials. However, Physician did not file suit challenging the Hospital’s me dical staff reappointment st andards. In fact, he has never argued that the Hospital could not require that its surgeons be board certified. Rather, Physician contends that the Hospital cannot ignore its credentialin g requirements when it suits its purposes, and then reverse course an d revoke his staffing privileges in retaliation for his patient safety comp laints. Therefore, at this stage of the proceeding, Mahmoodian is readily distinguishable from the instant matter.

Mahmoodian , 185 W.Va. at 65, 4 04 S.E.2d at 756. Likewise, in Khan v. Suburban Community Hospital , 340 N.E.2d 398 (Ohio 1976), the court stated that wh en the board of trustees of a private, nonprofit hospital adopts reasonable criteria for the privilege of practicing major surgery in the hospital, a court should not substitute its evaluation of such matters. Th e court stated sharply that “judges should not be flaunting the staff of Mercury and telling physicians how to run their profession.” Id . at 402.18 We therefore reject the Hospital’s proposition that any tangential involvement of a hospital’s st affing decision somehow foreclos es judicial intervention in the types of disputes normally dealt with in the courts. Although courts have limited jurisdiction “to review purely administrative de cisions of private hospitals, the courts of this state do have jurisdiction to hear cases alleging torts, brea ch of contract, violation of hospital bylaws or other actions that contravene public policy.” Clark v. Columbia/HCA Info. Servs., Inc. , 25 P.3d 215, 220 (Nev. 2001).

A recent decision of the Supreme C ourt of California illustrates this principle. In Fahlen v. Sutter Ce ntral Valley Hospitals , 318 P.3d 833 (Cal. 2014), a physician brought a statutory health care f acility whistleblower claim against a hospital after it terminated his staff privileges; he alleged the hospital’s action constituted retaliation for his reports of substandard performance by hospital nurses. The court permitted the suit to proceed and held that when a physician clai ms, under [the statute] 17 , that a hospital’s quasi-judicial decision to restrict or terminate his or

17 The health care facility whistleblow er statute in effect at the time Fahlen was decided declared “the public policy of the Stat e of California to encourage patients, nurses, members of the medical staff, and other health care workers to notify g overnment entities of suspected unsafe patient care and conditions.” . . . To this end, the statute provides that “[n]o health care facility shall discriminate or retaliate, in any manner, against any patient, employee, member of the medical staff, or any other health care worker . . . because that person has . . . [p]resented a (continued . . .)19 her staff privileges was itself a means of retaliating against the physician “because” he or she reported concerns about the treatment of patients, the physician need not first seek and obtain a mandamus judgment setting aside the hospital’s decision before pursuing a statutory claim for relief. [The statute] declares a policy of en couraging workers in a health care facility, including members of a hospital’s medical staff, to report unsafe patient care. The statute implements this policy by forbidding a health care facility to retaliate or discriminate “in any manner” against such a worker “because” he or she engaged in such whistleblower action. . . . It entitles the wo rker to prove a statutory violation, and to obtain appropriate relief, in a civil suit before a judicial fact finder. Id . at 835 (citations omitte d and footnote added).

In the same fashion, our Act endeavors to safeguard the health and safety of patients. It provides, without qualification, that a health care worker who has suffered retaliation or discrimination “i n any manner” for making good faith reports about patient safety issues is entitled to institute a ci vil action for relief. W.Va. Code § 16-39-4. Therefore, the West Virginia Legislature ha s made clear that courts should not ignore allegations that a hospital’s actions contrave ne this significant public policy simply because credentialing standards or staffing pr ivileges are implicated. There is therefore no basis to conclude that the Act precludes a hospital physician from bringing a civil suit

grievance, complaint, or report to the facility, to an entity or agency responsible for accred iting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity.” Fahlen , 318 P.3d at 839 (citing Cal. Health & Safety Code § 1278.5 (2008)).20 claiming that the hospital’s decision regardin g his or her medical staff appointment was in retaliation for good faith reports of patient safety complaints.

The broad discretion afforded hospitals in their medical staff selection process under Mahmoodian must be tempered with the pr otections afforded health care workers in our Act, in a ma nner that serves the common ai m of both schemes—the safe and competent care of hospital patients. Thus, it is not necessary to reject the rationale of Mahmoodian to affirm the circuit court’s decision.

Therefore, Physician’s statutory cause of action under the Act and his other claims may proceed as they stand in stark c ontrast to the plainti ff’s complaints about a hospital’s disciplinary proceeding in Mahmoodian

. 18 The Hospital’s wholesale reliance

on Mahmoodian is therefore not enough for this Court to dismiss Physician’s claims at this stage of the litigation.

18 State ex rel. Sams v. Ohio Valle y General Hospital Association , 149 W.Va. 229, 140 S.E.2d 457 (1965), is al so patently dissimilar. In Sams , a physician filed suit after he was unsuccessful in his initial attempt to gain staffing privileges at a private hospital; he sought an order compelling the hospital to gr ant him privileges. Th is Court refused to become entangled in the controversy, and held in syllabus point four that: “The governing authorities of a private hospital, in the exercise of their discre tion, have the absolute right to exclude licensed physicians from its medi cal staff and such action is not subject to judicial review.” Id . at 229, 140 S.E.2d at 458. The physician in Sams had not worked at the hospital, so he obviously had not alleged that he was retaliated against for making patient safety complaints.21 Accordingly, we find Physician suffici ently pled his causes of action to survive a motion to dismiss made under Rule 12(b)(6). This Court has previously stated that motions to dismiss are generally viewed w ith disfavor because the complaint is to be construed in the light most favorable to the pl aintiff and its allegations are to be taken as

true. Sticklen v. Kittle, 168 W.Va. 147, 163-64, 287 S.E.2d 148, 157 (1981). Obviously, Physician must still develop sufficient facts in order to ultimately prevail on his claims, but it does not appear beyond do ubt to the Court at this stage of the proceeding that he can prove no set of fa cts in support of his claims whic h would entitle him to relief. Syl. Pt. 3, Chapman, 160 W.Va. at 530, 236 S.E.2d at 207.

IV. CONCLUSION We affirm the August 4, 2016, order of the Circuit Cour t of Wood County.

Affirmed.