IN THE SUPREME COURT OF APPEALS 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-Party Plaintiff Below, 

Respondent 

 

Appeal from the Circuit Court of Wood County 

The Honorable Jeffrey 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. Steven 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, West Virginia 

Attorneys for Petitioner 

FILED 

November 13, 2017 

released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA
JUSTICE WORKMAN delivered the 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 unless 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, 236 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 contract, violation of hospital 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 Hospital Corporation (the “Hospital”) and 

alleged it discriminated and retaliated against him for reporting patient safety concerns; 

he alleged violations of the West Virginia Patient Safety Act (the “Act”),1 retaliatory 

discharge, and intentional infliction of emotional 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 because Physician’s claims are linked to its 

decision to not reappoint him to its medical 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 circuit court denied the Hospital’s motion, and it appealed. 

This Court finds that Physician’s claims are distinguishable from 

Mahmoodian, and sufficient to survive the Hospital’s Rule 12(b)(6) motion. We therefore 

affirm the order of the circuit court. 

I. FACTS AND PROCEDURAL HISTORY 

In 2008, Physician completed his residency and earned his license to 

practice medicine in West Virginia. Physician was employed by Camden-Clark Physician 

Corporation (the “Corporation”) as a general surgeon from 2008 until he was terminated 

in 2013. The Corporation operates a physicians’ group wholly 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 and governed by the same individuals.2

 

For much of his employment, Physician was the only general surgeon at the 

Hospital. He maintained a demanding schedule with his own patients, and was also on 

call for other physicians, including a vascular surgeon. Physician alleges that this 

arrangement troubled him because he did not have deep-rooted expertise in vascular 

surgery and that he repeatedly expressed patient 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 surgeon, who clashed with administrators over 

patient safety concerns including allegations of inadequate staffing, contaminated 

instruments, and insufficient equipment and supplies. 

Pursuant to his employment agreement with the Corporation, Physician had 

to maintain appointment 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 CCHS; Kathy Eddy is 

the President of the Corporation, and the Secretary/Director of both the Hospital and 

CCHS; Todd A. Kruger is Vice-President for 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 with the Corporation. 

 

3

 Under the terms of his employment agreement, Physician was required to “meet 

and continue to meet the Eligibility Criteria and other requirements for active medical 

staff appointment and re-appointment set forth in the Medical Staff Bylaws, Credentials 

(continued . . .) 
3 

the eligibility criteria for Physician’s appointment 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 Credentials Policy also provided a procedure 

whereby the Hospital could waive this requirement. 

 Board certification is a two-part process; 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. Administrators with the Corporation told Physician that another 

general surgeon would be added to the Hospital’s staff. With this understanding, 

 

Policy and/or other policies, procedures and rules and regulations 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 require 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 residency or fellowship training. 

(This requirement is applicable only to those individuals for 

initial staff appointment after the date of adoption of this 

Policy. All individuals appointed previously will be governed 

by the board certification requirements in effect at the time of 

their appointments[.]). 
4 

Physician planned to take some time off to complete his board certification. Under the 

new agreement, effective July 1, 2013, Physician received a pay raise, and was permitted 

to practice on the weekends at Marietta Memorial Hospital in Ohio. The new 

employment agreement became 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 application 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 Hospital. Physician indicated that he was 

scheduled to take the certification exam in March of 2014. 

Then, just months after it renewed his employment agreement, the 

Corporation terminated Physician in November 2013, purportedly for his failure to 

maintain membership on the medical staff of the Hospital. Physician alleges that when 

the Corporation’s administrator terminated him, he told Physician that the Corporation 

would not seek to enforce the non-competition portion of their employment agreement or 

seek reimbursement for his “tail coverage,” a policy of medical professional liability 

insurance. 
5 

Following his termination, Physician began working with a physicians’ 

group at Marietta Memorial Hospital. In March of 2014, the American Board of Surgery 

certified Physician in surgery; this board certification was less than 180 days after the 

Corporation gave notice of its intent to terminate his employment contract. 

The Corporation initiated the instant action in October 2014 when it filed a 

claim against Physician the year after his termination. The Corporation alleged Physician 

breached the employment agreement when he failed to purchase 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 any payments from Physician, including the payment of the 

tail coverage. Physician stated that by entering into the 2013 employment agreement with 

full awareness of his board certification status, the Corporation waived any requirement 

that he achieve board certification within five years of his initial hire date. Physician also 

filed five counterclaims including breach of contract, breach 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 alleged 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 Hospital administrators 
6 

“due to his expressions of concern regarding patient safety and his friendship with and 

support of Dr. Roman Petrov.”5

 

Physician amended his counterclaim against the Corporation to include a 

third-party complaint against the Hospital, and its parent corporation CCHS, which is the 

subject of this appeal.6 He filed claims against the Hospital for violations of the Act, 

retaliatory discharge, and intentional infliction of emotional distress. In his pleadings, 

Physician referred to the Corporation, the Hospital, and CCHS collectively as “CamdenClark” “[b]ecause of their shared administration, facilities, support staff and inextricably 

intertwined operations[.]” 

Physician alleged that he did not avail himself of appropriate administrative 

remedies because the Camden-Clark entities represented that he would not be required to 

pay for tail coverage and would be relieved of any obligation under a noncompetition 

clause. He also alleged the Corporation, the Hospital and/or CCHS breached the 

 5

 Dr. Petrov also lost staffing privileges at the Hospital in the fall of 2013, and that 

matter is in litigation. In his brief before this Court, Physician references a deposition 

taken in Dr. Petrov’s lawsuit. Specifically, he refers to the testimony of Rick Hamilton, 

former Executive Director of the Corporation, wherein Mr. Hamilton discussed the 

circumstances surrounding the decision to terminate 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 deprived him of the peer review process described in the 

employment agreement. 

In May of 2016, Physician 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 judgment. The Hospital argued that because 

Physician’s claims touch on the issue of its criteria for eligibility for appointment to its 

medical staff, it must be afforded qualified immunity pursuant to Mahmoodian.

7

 As such, 

the Hospital maintained that 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 undisputed 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 for a discussion of syllabus point one of 

Mahmoodian, 185 W.Va. at 60, 404 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]egarding the issue of interrelatedness of the Camden-Clark 

parties, this Court has already ruled that the doctor is to be given an opportunity to 

explore the possibility that those are not separate entities, but are all interrelated.” The 

circuit court deferred ruling on the Hospital’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 hearing 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 not reach the Hospital’s argument that 

Physician released it from all liability for actions involving credentialing decisions when 

he signed a release of information form and consented to the Hospital’s bylaws. The 

Hospital acknowledged below that 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 and a half to this argument. We decline to 

address it as our review at this stage of the proceeding is limited to Physician’s thirdparty complaint. “A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a 

complaint, and an inquiry as to the legal sufficiency is essentially 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 five 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 the 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 conflicts 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 Rules 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 claim. This Court has previously 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 sufficiency of the complaint. A trial court considering a motion to 

dismiss under Rule 12(b)(6) must liberally construe 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 merits, courts presented with a 

motion to dismiss for failure to state a claim construe the complaint in the light most 

favorable to the plaintiff, taking all allegations as true.” Sedlock v. Moyle, 222 W.Va. 

547, 550, 668 S.E.2d 176, 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 complaint on a Rule 12(b)(6) motion, should not 

dismiss the complaint unless 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).” 

III. DISCUSSION 

 The Hospital contends that the circuit court erred in denying its motion to 

dismiss, or in the alternative, in not granting it summary 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 the 
11 

Hospital from illegal actions, such as retaliatory 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 action 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 providing protections for those 

health care workers with whom the patient has the most direct contact.” W.Va. Code § 

16-39-2(b).11 The Act provides that: 

 11 West Virginia Code § 16-39-2 reads in its entirety as follows: 

(a) The Legislature finds that: 

 (1) Patients receiving medical care in this state need 

stable and consistent care from 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 are at all times protected; 

 (3) During the course of caring for their patients, many 

health care workers often observe instances of waste or 

wrongdoing that detrimentally affect both the patients and the 

health care facility; 

 (4) Health care workers who 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 available 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 behalf 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 proceeding 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 violated the Act when it discriminated 

and retaliated against him in response to his good faith reports “on behalf of patients with 

respect to the care, services and conditions of Camden-Clark’s health care facilities.” 

There is no dispute that the Hospital is a health care entity12 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 Legislature intends by enacting this 

article to protect patients by providing protections for those 

health care workers with 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 other provider of health care 

services.”) (emphasis added). 
13 

worker13 within the meaning of the Act. The Act provides that “[a]ny health care worker 

who believes that he or she has been retaliated or discriminated against” may file a civil 

action. Id. § 16-39-6(a). And a court, in rendering 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, Physician alleged retaliatory discharge. In 

support of this count, Physician alleged that the Corporation, 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 established precepts in [the State’s] constitution, 

 13 See Id. § 16-39-3 (7) (“‘Health care worker’ means a person who provides direct 

patient care to patients of a health care entity and who is an employee of the health care 

entity, a subcontractor or independent contractor for the health care entity, or an 

employee of such subcontractor or independent contractor. The term includes, but is not 

limited to, a nurse, nurse’s aide, laboratory technician, physician, intern, resident, 

physician assistant, physical therapist or other such person 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 employee must be tempered by the 

principle that where the employer’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 approved 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, Physician alleged intentional infliction of 

emotional distress.15 Included within the averments supporting this count were that the 

conduct of the Corporation, the Hospital, and CCHS towards Physician “was atrocious, 

intolerable, and so extreme and outrageous as to exceed the bounds of decency.” 

 15 When analyzing an intentional infliction 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 outrage claim is this: when the 

employee’s distress results from the fact of his discharge—

e.g., the embarrassment and financial loss stemming from the 

plaintiff’s firing—rather than from any improper conduct on 

the part of the employer in effecting the discharge, then no 

claim for intentional infliction of emotional distress can 

attach. When, however, the employee’s distress results from 

the outrageous manner by which 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, 445 S.E.2d 219 (1994) 

holding modified by Tudor v. Charleston Area Med. Ctr., Inc., 203 W.Va. 111, 506 

S.E.2d 554 (1997). 
15 

Moreover, he alleged that the corporate entities “acted with the 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 enjoys qualified immunity from all of 

Physician’s claims. It submits that our review here is razor-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 appellate review by the hospital’s board of directors. 185 

W.Va. at 62, 404 S.E.2d at 753. He brought a civil action against the hospital and the 

court granted a permanent injunction that required the hospital to reinstate his staff 

privileges. The private hospital appealed and this Court reversed. In this context, we held 

that a court may review only whether a hospital’s medical staff bylaws presented clearly 

articulated requirements for medical staff appointment, 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 private hospital to revoke, suspend, restrict or 

to refuse to renew the staff appointment or clinical privileges of a medical staff member 
16 

is subject to limited judicial review to ensure that there was substantial compliance with 

the hospital’s medical staff bylaws governing such a decision, as well as to ensure that 

the medical staff bylaws afford basic notice and fair hearing procedures, including an 

impartial tribunal.”). 

This Court articulated sound public policy reasons behind our decision in 

Mahmoodian wherein we conferred limited judicial review 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 hospitals, by way of injunction, 

declaratory judgment or otherwise, reflects the general 

unwillingness of courts to substitute their judgment on the 

merits for the professional judgment of medical and hospital 

officials with superior qualifications to make such decisions. 

Furthermore, a private hospital’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 procedural protections which 

must be accorded a medical staff member by a private 

hospital in a disciplinary proceeding which could seriously 

affect his or her ability to practice medicine. Such basic 

procedural protections include notice of the charges and a fair 

hearing before an impartial tribunal. 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 interfere in decisions that are grounded in hospitals’ areas of 

expertise. Those compelling interests are largely marginalized, however, when a health 

care worker alleges retaliatory or discriminatory 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 mischaracterizes the nature of Physician’s claims 

and asks us to ignore the allegations of retaliation for patient safety complaints. To accept 

the Hospital’s argument, this Court 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 medical staff reappointment standards. 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 credentialing requirements when it 

suits its purposes, and then reverse course and revoke his staffing privileges in retaliation 

for his patient safety complaints. Therefore, at this stage of the proceeding, Mahmoodian

is readily distinguishable from the instant matter. 

 

Mahmoodian, 185 W.Va. at 65, 404 S.E.2d at 756. 

 Likewise, in Khan v. Suburban Community Hospital, 340 N.E.2d 398 (Ohio 

1976), the court stated that when 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. The 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 staffing decision somehow forecloses judicial intervention in 

the types of disputes normally dealt with in the courts. 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 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 Court of California illustrates this 

principle. In Fahlen v. Sutter Central Valley Hospitals, 318 P.3d 833 (Cal. 2014), a 

physician brought a statutory health care facility 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 claims, under [the statute]17 , that a 

hospital’s quasi-judicial decision to restrict or terminate his or 

 17 The health care facility whistleblower statute in effect at the time Fahlen was 

decided declared 

“the public policy of the State of California to encourage 

patients, nurses, members of the medical staff, and other 

health care workers to notify government 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 encouraging 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 worker to prove a statutory violation, and to 

obtain appropriate relief, in a civil suit before a judicial fact 

finder. 

Id. at 835 (citations omitted 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 “in any manner” for making good faith reports about patient 

safety issues is entitled to institute a civil action for relief. W.Va. Code § 16-39-4. 

Therefore, the West Virginia Legislature has made clear that courts should not ignore 

allegations that a hospital’s actions contravene this significant public policy simply 

because credentialing standards or staffing privileges 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 accrediting 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 regarding 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 protections afforded health care 

workers in our Act, in a manner that serves the common aim 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 contrast to the plaintiff’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 Valley General Hospital Association, 149 W.Va. 229, 

140 S.E.2d 457 (1965), is also 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 grant him privileges. This 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 discretion, have the absolute right 

to exclude licensed physicians from its medical 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 sufficiently 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 with disfavor because the complaint is to be 

construed in the light most favorable to the plaintiff 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 doubt to the Court at this stage of the proceeding that he 

can prove no set of facts in support of his claims which 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 Court of Wood County. 

 Affirmed.