NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A - 5112
- 12T2 JAMES B. HURWITZ, M.D., Plaintiff

- Appellant,

v.
AHS HOS PITAL CORP . 1 and OVERLOOK HOSPITAL MEDICAL STAFF, Defendants
- Respondents.

_________________________________

Argued October 14, 2014
- Decided Before Judges Sabatino, Simonelli, and Leone. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L - 2194
- 11. Philip F. Mattia a rgued the cause for appellant (Mattia & McBride, P.C., attorneys; Mr. Mattia, of counsel and on the briefs; Alex W. Raybould, on the brief ) . Anthony Cocca argued the cause for respondents (Bubb , Grogan & Cocca, LLP, attorneys; Mr. Cocca, of counsel and on the brief; Katelyn E. Cutinello, on the brief). The opinion of the court was delivered by SABATINO, P.J.A.D.

1 Improperly pled as Overlook Hospital. APPROVED FOR PUBLICATION November 24, 2014

APPELLATE DIVISION

November 24, 2014A - 5112
- 12T2 2 This litigation arises out of a hosp ital's internal review and investigation of a surgeon after shortcomings were revealed in the care that surgeon had provided to certain patients. After extensive administrative hearings conducted within the hospital, in which the surgeon and his attorney participated, the hospital's Board of Trustees revoked the surgeon's clinical privileges. The surgeon contended that the actions taken against him by the hospital were arbitrary, unreasonable, and unduly punitive. He sought relief in the trial court, based on several legal theories. The trial court dismissed the surgeon's lawsuit. In doing so, the court relied upon immunities from monetary damages conferred by f ederal and New Jersey statutes upon hospitals and the participants in peer review processes when evaluating a physician's performance and in making decisions about that physician's clinical privil eges. See 42 U.S.C.A. § § 11111 to
111 12 and N.J.S.A. 2A:84 A - 22.10. The court found that plaintiff had failed to present sufficient evidence or indicia to overcome
those statutory immunities . The court further ruled that plaintiff had not justified the t aking of depositions , or the pursuit of othe r additional discovery , before the immunity issues were adjudicated.A - 5112
- 12T2 3 For the reasons that follow, we affirm the trial court's dismissal of plaintiff's complaint, the rejection of his request to amend his pleadings a third time to amplify his allegations , and the court's determination that plaintiff had failed to justify additional discovery. In particular, we concur wit h the trial court that the hospital and the participants in the hospital's internal review process es are statutorily immune in this case from monetary liability. We further agree with the
court tha t plaintiff has not identified sufficient grounds to estab lish that the hospital conducted its investigation without a reasonable basis for doing so, or that the hospital's revocation of plaintiff's privileges was imposed without a reasonable belief that such action was in furtherance of quality health care obje ctives. Additionally, w e sustain the trial court's ruling that plaintiff's conclusory allegations of wr ongdoing by the hospital and the participants in the internal review process are insufficient to warrant depositions or the taking of other additional d iscovery . We hold that a challenger's right to obtain discovery, particularly depositions, in cases involving these immunity statutes is not absolute. Instead, the court may curtail discovery in its discretion if there are no reasonableA - 5112
- 12T2 4 indicia that a fa ctual basis to surmount the immunities will be
uncovered.

I. We derive the following chronology of events from the record, describing them solely to the extent that they are pertinent to the case - dispositive immunity questions raised
before us. 2 In doing so, we acknowledge that plaintiff disagrees with some of the hospital's findings 3 of his deficient

2 Prior to oral argument on the appeal, we invited counsel, sua sponte, to submit correspondence addressing confidentiality and privacy issues bearing upon the disclosure of certain information in the rec ord. After receiving counsel's submissions, we granted defendants' motion to seal a confidential appendix submitted in connection with the appeal, which contains materials that the trial court had likewise sealed at defendants' request. Plaintiff did not oppose the sealing, provided that if the dismissal of his lawsuit were vacated by this court and the case remanded, the appellate sealing order would not foreclose his evidential use of the contents of the confidential appendix in the trial court. Defens e counsel agreed with that proviso. Counsel also agreed that this court is not required under the applicable privacy or confidentiality laws to use initials or pseudonyms in this opinion for plaintiff himself or the names of the persons involved in the ho spital's internal review process. However, counsel agreed, and we concur, that the names of the patients who are mentioned in the confidential appendix should be initialized and not revealed.

3 Counsel agreed that the findings and recommendations contained within the confidential appendix may be freely quoted and referred to in this court's opinion. See, e.g. , Wahi v. Charleston Area Med. Ctr., Inc. , 562 F. 3d 599, 610
- 11 (4th Cir. 2009) (quoting from various correspondence and peer review committee findings), cert. denied , 558 U.S. 1158, 130 S. Ct. 1140, 175 L. Ed. 2d 991 (2010); see also Poliner v. Tex. Health (continued)A - 5112
- 12T2 5 performance and that he vigorously contests the sanction of revocation that the Board of Trustees ultimately imposed. Initial Review of Plaintiff' s Performance and the Temporary Suspension of His Privileges Plaintif f James B. Hurwitz, M.D., is a b oard
- certified general surgeon licensed in the State o f New Jersey. Plaintiff has been granted clinical privileges at several hospitals, including Overlo ok Hospital ("Overlook" or "the hospital"), where he first obtained privileges in 1998. Eventually, concerns arose regarding the care that plaintiff had provided to certain patients at Overlook. As a

resu lt, in June 2010, the hospital's Chief of Surgery referred
cases of two of plaintiff's patient s for review by an outside

(continued) Sys. , 537 F. 3d 368, 372
- 73 (5th Cir. 2008) (summarizing the findings of an Internal Medicine Advisory Committee and noting that the appellant doctor was found to have "(1) poor clinical judgment; (2) inadequate skills . . . ; (3) unsatisfactory documentation of medical records; and (4) substandard patient care "), cert. denied , 555 U.S. 11 49, 129 S. Ct. 1002, 173 L. Ed. 2d 315 (2009); Gordon v. Lewistown Hosp. , 423 F. 3d 184, 194 (3d Cir. 2005) (quoting various findings of the hospital's internal h earing o fficer's report as well as other communications exchanged between the chairman of the c redentials c ommittee and the appellant doctor ), cert. denied , 547 U.S. 1092, 126 S. Ct. 1777, 164 L. Ed. 2d 557 (2006) ; Singh v. Blue Cross/Blue Shield of Mass., Inc. , 308 F. 3d 25, 29
- 30 (1st Cir. 2002) (freely quoting from an internal "audit" of the appellant doctor's performance, which stated that "competent expert care was rarely seen" and that "documented treatment showed evidence of care somewhat below recognized standards of care") .A - 5112
- 12T2 6 expert , a faculty member at New York University School of

Me dicine. The outside reviewer i s not affiliated with Overlook. Plaintiff was not concurrently informed that those cases had
been sent out for review.
The ou tside reviewer issued a report in August 2010 ,

o pining that, with respect to one of the two patients in question, plaintiff had not be en "proactive in managing [the patient ' s ] care" and also that he had failed to "intervene when
the clinical situation required." The reviewer reached similar conclusions with respect to the second patient. The reviewer recommended "counseling, monitoring, and consideration of restricting [plaintiff's] clinical privileges [ , ] " and if such measures had already been taken , "terminating [plaintiff's] privileges at Overloo k Hospital." Soon thereafter, on September 29 , 2010, the hospital's Medical Executive Committee ("MEC") convened to consider authorizing an internal investigation into plain t if f's clinical competence. On that same day, the twenty
- six MEC members in attendance unani mously voted in favor of commenc ing such a formal investigation. The next day, September 30, 2010, the p resident of the hospital's medical staff issued a letter to plaintiff, notifying hi m that the MEC had begu n the investigation. As a consequenceA - 5112
- 12T2 7 of the pending investigation, the p resident temporarily suspended pla intiff's clinical privileges. This temporary suspension was imposed pursuant to the hospital's byl aws. The Chancery Division Action Less than a week later, on October 1, 2010, plaintiff filed an action in the Chancery Division seeking injunctive relief to restrain and enjoin the h ospital fr om suspending his privileges. Plaintiff then filed an amended complaint in the Chancery action, adding as a co - defendant the hospital's m edical s taff ("the Medical Staff"). The hos pital and the Medical Staff filed opposition to the injunctive application.
After hearing initial oral argument, the Chancery Divis ion judge presiding over the matter , Hon. John F . Malone, granted plaintiff's request for certain expedited discovery and scheduled further argument o n the injunction. Among other things, Judge Malone directed defendants to provide plaintiff with a copy of th e hospital's bylaws, written notice of the reasons for any advers e action taken or proposed, results of any investigation taken, medical charts, records, and any written report of the hospital's findings, including a "recitation of the [hospital's] actions and recommendations . . . and the basis for [plaintiff's] summary suspension without [a] hearing[.]" The judge declined to issue temporary restraints resto ringA - 5112
- 12T2 8 plaintiff's privileges. C ertain paper discovery , including responses to interrogatories, apparently were thereafter provid ed in the Chancery action , but no depositions were taken. The Investigating Committee's Review Meanwhile, as a follow

- up to th e September 2010 MEC meeting , the hospital created an Ad Hoc Investigating Committee ("the Investigating Committee"), appointed by the Medical Staff,
to undertake the investigation and to submit a report with its findings a nd recommendations to the MEC. F ive phy sicians were

n amed to the Investigating Committee. The Investigating Committee met several times between October 2010 a n d December
2010 . Plaintiff was invited to provide written submissions , a nd he did so in a letter from his counsel and also in h is own separate letter. Plaintiff declined , however, three opportunities t o meet with the Investigating Committee in person and to answer questions. On December 20, 2010, the Investigating Committee issued its report, along with various recommendations . The report noted that the Committee had reviewed plaintiff 's care that he had provided to six patients over a year

- and
- a - half per iod. Based on its review of those six cases, t he Investigating Committee reached certain unfavorable conclusions. I n parti cular, its report foun d that plaintiff's care was " notableA - 5112
- 12T2 9 for poor documentation of care plans and delays in managing complications of surgery, which r esulted in adverse outcomes." Given its findings, t he Investigating Committee presented the following r ecommendation:

Our recommendation is to remove [plaintiff] from the ER [Emergency Room] call schedule and to institute ad hoc review of 25 inpatient surgical cases [in which plaintiff had acted] as primary surgeon by the Surgical Care Review Committee. If [plaintiff's] performance of the cases were felt to be adequate, he would be able to return to the ER roster. Dismissal of the Chancery Action The hospital then filed a motion to dismis s plaintiff's Chancery action , in lieu of an answer, for failure t o state a claim upon which relief can be granted , pursuant to Rule 4:6
- 2(e) . That motion was granted o n January 21, 2011 . 4 On the same day that Judge Malone granted the hospital's motion to dismiss the Chancery action, the MEC issued its decision based on the Investigating Committee's report . In a letter dated January 21, 2011, the MEC informed plaintiff that it h ad voted to impose a continued suspension of his privileges ,

4 The dismissal order recites that the Chancery action was dismissed "with prejudice," although the parties and the trial court did not treat the dismissal of the Chancery Division as a bar to plaintiff's subsequent litigation in the Law Division.A - 5112
- 12T2 10 subject to various terms and conditions. Specifically, the MEC
stated as follows:

After thoughtful consideration and deliberation, the MEC voted to impose an additional suspension of your clinical privileges commencing upon your receipt of this notice for a minimum of three (3) months or until such time as you complete professi onal courses at your expense approve d by the MEC addressing Medical Ethics and Professionalis m, Medical Record Documentation and General Surgical Review. Upon completion of the suspension, your clinical privileges will be reinstated at which time you will be required to undergo a concurrent review of twenty

- five (25) cases by a supervising surgeon assigned by the Chairman of the Department of Surgery. During the concurrent review, you will be ineligible for the Emergency Department on

call schedule, you w ill not be provided routine resident coverage for your patients, and any and all elective cases will require review and approval by the Chairman of the Department of Surgery prior to scheduling a patient for the OR [Operating Room] or otherwise admitting a patient to Overlook Hospital. [ ( Emphasis added ) .] A little less than a month later , Judge Malone denied plaintiff's outstanding motion for a preliminary injunction. 5

5 The parties do not explain why the trial court issued an ord er denying plaintiff a preliminary injunction after the Chancery action was already dismissed, although we suspect that denial of the outstanding motion was issued for housekeeping reasons.A - 5112
- 12T2 11 Plaintiff's Law Division Complaint Although it is not entirely clear from the rec ord, plaintiff apparently filed a new or a reinstated complaint in the Law Division some time between January 2011 and November
2011. Despite the fact that the Chancery action had already been dismissed in January 2011 , plaintiff obtained an order in May 2011 "transferring" his case from the Chancery Division to the Law Division. Plaintiff also requested that his case be

re assigned to the complex commercial track, pursuant to Rule
4:5 A - 2(b), so as to enable a lengthier period for discovery . That tracking request was granted . In November 2011, the hospital moved to dismiss plaintiff's Law Division complaint , without prejudice , "pending a resolution

or completion of the hospital['s] hearing and appeal process." The hospital note d that, under its applicabl e by laws, plaintiff was entitled to a formal internal hearing to contest the MEC's investigati ve findings and recommendations. In fact, plaintiff had already requested such an internal hearing under the b ylaws,
and that hearing had begun . Plaintiff did not oppose a without

- prejudice dismissal of his Law Division action at that time . As his counsel represented to us, plaintiff agreed to such a dismissal to accommodate the hospital's internal administrative procedures,A - 5112
- 12T2 12 in light of the costs and burde ns of challenging the hospita l's actions in two separate proceedings at the same time. Consequ ently, plaintiff and the hospital entered int o a Consent Order on January 19, 2012, dismissing plaintiff's Law Division action, expressly " without prejudice, " pe nding a resolution or completion of the hospital 's internal hearing an d appeals process. Pursuant to the terms of the Consent Order, plaintiff was permitted to reinstat e his amended complaint in
the L aw Division "without regard to any st atute of limitatio ns issues." Aside from this, the Consent Order specified that the parties "reserve[d] all rights concer n ing the claims and
defenses." The Hospital's Internal Hearings The hospital's internal hearing s began in June 2011 . A fte r a substantial delay of eig ht months due to scheduling confli cts of plaintiff's counsel, the hearings were resumed and completed February 2012. The hearing panel consisted of three physicians and a presidin g member from an outside organization . Both plaintiff and the MEC were rep resented by counsel. We are advised that
f act and expert witnesses for both parties presented swornA - 5112
- 12T2 13 testimony to the panel , and were subject to cross

- examination. 6 Documents were presented into evidence, including medical
records of the specific patients whose cases were the sub ject of the MEC investigation. The parties submitted post

- hearing briefs f or the panel's consideration. A certified shorthand reporter pr epared a verbatim transcript of the hearing s . 7 On May 2, 2012, the hearing panel issued its report. The panel concluded that plaintiff had been deficient in his care
and treatment of the four patients whose cases it had reviewed. With regard to those patients, the panel concluded that plaintiff "in various respects , demonstrated poor surgical judgment, a lack of attentiveness to patients, untimely post

operative management of surgical complications and/or a failure
to document thou ght processes and plans of care. " In addition, the panel faulted plaintiff for, as it foun d, entering a note in

6 In particular, we were advised at oral argument that plaintiff h imself testified at the hearing and that he presented his own expert witness, although the limited record supplied to us is insufficient to confirm this.

7 We have not been furnished with the hearing transcripts, but, as we explain, infra , they are not es sential to our review of the legal issues being presented on this appeal.A - 5112
- 12T2 14 the chart of one of those four patien t s , which "falsely indicated tha t [plaintiff] had met with the patient 's mother." 8 Based on its factual findings, the hearing panel
recommended that the terms of plaintiff's suspension as set forth by the MEC should be adopte d. T he panel also indicate d that more stringent sanctions beyond such a suspension were not warranted. More specifically, the panel recommended in its written report, in pertinent part:

3. [T] hat the suspension of [plaintiff's] clinical privileges and other restrictions imposed by the MEC were fair and reasonably necessary to protect the health and safety of patients . . . . [and]

. . . . 5. The record does not support the imposition of gr eater sanctions on [plaintiff ] than those imposed by the MEC, including the revocation of his clinical privileges. The Board of Trustees' Revocation of Plaintiff's Privileges Pursuant to the hospital's bylaws, the heari ng panel forwarded its report to the Board of Trustees . Focusing in particular upon the hearing panel's discrete finding that plaintiff had falsified a patient record, the Board of Trustees

8 We were advised at oral argument that the hearing panel apparently found the testimony of the patient's mother more credible than that of plaintiff on the disputed question of whe ther such consultation had taken place.A - 5112
- 12T2 15 revoked his clinical privileges , effective immediately. It conveyed that decision in a letter to plaintiff dated July 26,
20 12. Plaintiff did not p ursue any further appeal within the hospital of the Board of Trustees' decision , although the bylaws entitle d him to appeal the decision to a "Review Panel composed of not fewer than three persons . " Plaintiff's Motion to Reinstate His La w Division Case and Defendants' Motion to Dismiss After the Board of Trustees informed him of its decision to revoke his privileges, plaintiff moved to reinstate his action in the Law Division but simultaneously moved to file a proposed Second Amended Co mplaint . His pleadings, as originally framed and then revised in the proposed Second Amended Complaint , asserted several legal theor ies for the recovery of damages, including breach of contract, breach of the implied covenant of good faith and fair dealing, and violation of plaintiff's due process rights. 9 Defendant s opposed the reinstatement motion . They argued, among other things, that the proposed Second Amended Complaint failed to state a cause of action as a matter of law because of defendant s ' federal and state statutory immunities.

9 In his last proposed amended complaint, plaintiff ultimately amended this allegation, given the absence of State action by defendants, to a claim of violation of "fundamental fairness."A - 5112
- 12T2 16 After hearing oral argument, the Presiding Judge of the Law Division , Hon. Kenneth J. Gris pin, e ntered an order on March 12 , 2013 , accompanied by a written Statement of Reasons , denying plaintiff's reinstate ment motion , without prejudice. Specifically, Judge Grispin found in his Statement of Reasons that plaintiff's proposed Second A mended C omplaint : [ f ] ailed to plead malice on the part of the hospital , or its staff , which was required to rebut the presumption of reasonableness pursuant to [4 2] U.S.C.A. § 11112(a). Moreover, [plaintiff's] proposed amended complaint fails to state a cause of action a s to the Bo ard for the very same reasons . . . . Similarly, [plaintiff 's] alleged "due process" claim , contained in Count Three of the proposed amended complaint, cannot be sustained against a non

- profit hospital. Thereafter, plaintiff filed a motion for reconsideration and for leave to file a further amendment t o his Law Division complaint. In support of his motion, plaintiff submitted a proposed Third Amended C omplaint naming as defendants " AHS Hospital Corp. 10 Board of Trustees. " The proposed plead ing also

names various fictitiously

- named parties who have yet to be identified. Following another round of oral argument, Judge Grispin denied plaintiff's motion for reconsideration. In a second

10 AHS Hospital Corporation e vidently is the legal name of Overlook Hospital.A - 5112
- 12T2 17 Statement of Reasons dated May 27, 20 13, Judge Grisp in con cluded
tha t plaint iff's proposed Third Amended Complaint still "failed to articulate sufficient facts which would demonstrate malice on the part of Overlook which unjustly prejudiced [plaintiff] or that the internal administrative hearing process was arbit rary

or capricious." The judge granted defendants' cross

- motion to dismiss the L a w Division action, conclusively, specifying that the dismissal was "with prejudice." The Contentions on Appeal
On appeal , plaintiff contends that the trial court acted
prem aturely in enforcing defendant s ' claimed immunities . He argues that the court should have afforded him an opportunity to conduct depositions , which he asserts might have uncover ed admi ssible evidence to overcome th e immunities and which potentially could demonstrate that defendants acted maliciously, arbitrarily, or unreasonably. Although hi s counsel acknowledged
at the appellate oral argument that plaintiff had not handled the patient cases in question " perfectly , " and that some degree
of " remedia tion " of his conduct is appropriate, plaintiff asserts that the sanction of revocation imposed by the Board of
Trustees is unduly harsh. Plaintiff argues that the Board of Trustees' imposition of
the sanction of revocation , which is more severe than theA - 5112
- 12T2 18 conditional suspension recommended by the MEC and the hearing panel , circumstantially shows that the Board of Trustees engaged
here in arbitrary and unreason able decision

- making . Plaintiff also contends that the hospital and its agents waived in the
Conse nt Order the ir ability to oppose the reinstatement of his lawsuit . Plaintiff therefore urges that the trial court's dismissal
order be vacated . In particular, h e seeks to have his lawsuit reinstated for the completion of discovery and for a decision on the merits with a fuller record . In response, d efendants maintain that the trial court correctly enforced the terms mandated by and the public policies reflected in the federal and state immunity statutes . Those statutes, defendants emphasize, are design ed to protect hospitals and the participants in intern al peer review s from having monetary liability to doctors who are sanctioned as a
result of such internal proc esses. Defendants further submit that they did not waive in the Co nse n t Order their right to oppose a reinstatement of plain tiff's lawsuit on legal grounds , here being the substantive immunities they are afforded under
the federal and state statutes.

D efendants further assert that the tria l court sensibly rejected plaint iff's request to conduct depositions and toA - 5112
- 12T2 19 pursue other discovery. They maintain there is no indication in
the record , apart from plaintiff 's conclusory assertions and

s uspicions, that the hospital or its representatives engaged
here in the sort of ill

- founded or nefario us behavior that could nullify their statutory immunities.

II. The critical focus of this appeal centers upon the application of the federal and state immunities that have been invoked by defendants. We begin our analysis with an examination of the feder al statutory provisions, 42 U.S.C.A. §§
11111 to 11112. The federal immunities are part of the larger Healthcare Quality Improvement Act of 1986 ("HCQIA"), 42 U.S.C.A. §§ 11101
to 11152 , which provi des , in relevant part , that in a "professional review action of a professional review body . . . (A) the professional review body, (B) any person acting as a member or staff to the body, (C) any person under a contract or other formal agreement with the body, an d (D ) any person who participates with or assists the body with respect to the action " shall not be liable in damages under any law " with respect to [any review] action , " 42 U.S.C.A. § 11111(a)(1), if the review action is taken:A - 5112
- 12T2 20 (1) in the reasonable belief that the actio n was in the furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the p hysicia n involved or after such other procedures as are fair to the ph ysician under the circumstances, and (4) in the reasonable belief that the action w as warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3). [42 U.S.C.A. § 11112 (a) .] A "professiona l review body," as that term is used in the HCQIA , is broadly defined . The term encompasses "a health care entity and the governing body or any committee of a health care entity which conducts professional review activity, and includes any committee of th e medical staff of such an entity when assisting the governing body in a professional review activity."
42 U.S.C.A. § 11151(11). A "professional re view action," defined earlier in the HCQIA , consists of :

an action or recommendation of a professional review body which is taken or made in the conduct of professi o nal review activity , w hich is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of aA - 5112
- 12T2 21 patient or patie n ts), and which affects (or may affect) adversely the clinical privileges , or membership in a professional society, of the physician. Such term includes a formal decision of a professional review body not to take an action or make a recommendation described in the previous sentence and also inc l udes professional review activities relating to a professional review action. [42 U.S.C.A. § 11151(9) (emphasis added).] Further, the HCQIA defines "profes sional review acti vity"
to cover any activity of a health care entity with res pect to an individual physician conducted "(A) to determine whether the physician may have clinical privileges with respect to, or membership in, the entity, (B) to determine the scope or conditio ns of such privileges or membership, or (C) to change or modify such privileges or membership." 42 U.S.C.A. § 11151(10). Significantly, the HCQIA imposes a rebuttable presumption that an adverse professional review action und ertaken by a hospital against a physician is protected by the immunity. As the statute recites, "[a] professional review action shall be presumed to have met the preceding standards necessary for the protection set out in section [42 U.S.C.A. § 11111(a)] unless the presumption is reb utted by a preponderance of the evidence."
42 U.S.C.A. § 11112 (a) . T he on ly specified qualification to this broad immunity coverage , then, is if a plaintiff demonstrates, by a preponderance of the evidence, that theA - 5112
- 12T2 22 defendant took action without a reason able belief in initiating the action, failed to provide adequate notice and hearing procedures, or otherwise took action without a reasonable belief it was warranted by the facts af ter a reasonable investigation.
See 42 U.S.C.A. § 11112(a)(1 ) to - (4) .

" HCQIA immunity is a question of law for the court to decide and may be resolved whenever the record in a particular case becomes sufficiently developed. " Bryan v. James E. Holmes Reg'l Med. Ctr. , 33 F. 3d 1318, 1332 (11th Cir. 1994) (emphasis added) , cert. denied , 514 U.S. 1019, 115 S. Ct. 1363, 131 L. Ed. 2d 220 (1995) . As the House of Representatives Committee th a t took part in the HCQIA's passage explained:

The [immunity] provisions would allow a court to make a determination that t he defendant has or has not met the standards specified in section [11112(a)]. The Committee intends that the court could so rule even though other issues in t he case remain to be resolved. For example, a court might determine at an early stag e of litiga tion t hat the defendant has met the [section 11112(a)] standards, even though the plaintiff might be able to demonstrate th at the professional review action w as otherwise improper. At that point, it would be in order for the cour t to rule on immunity . In such a case, the court could still proceed to determine whether injunctive, declaratory, or other relief would be in order. [ Ibid. (quoting H .R. Rep. No. 99
- 903, at 12 (1986) , reprinted in 1986 U.S.C.C.A.N. 6394 (emphasis added) ) .]A - 5112
- 12T2 23 This immunity from monetary liability has been enforced repeatedly by the federal and state courts , aside from exceptional instances where the immunity has been overcome. See, e.g. , Osuagwu v. Gila Reg'l Med. Ctr. , 850 F. Supp. 2d 1216, 1239 (D.N.M. 2012) (finding that HCQIA immunity should not apply because plaintiff was not "given a fair opportunity to
confront and cross
- exam ine the anonymous physicians who prepared the peer
- review forms , " and because the peer review panel was not impartial , given that one of th e reviewers was an "accuser, investigator, prosecutor, and one of [the plaintiff's] judges [at the hearing]" ) ; see al so Colantonio v . Mercy Med. Ctr. , 901
N.Y.S. 2d 370, 374 ( App. Div. 2010) (finding that the defendants
were not clearly entitled to immunity because there remained a "triable issue of fact as to whether, at the meeting of the Committee, some defendants knowingly provided false information") . Recognizing the strong legislative policy underlying 42
U.S.C.A. § 11111 , the Eleventh Circuit has cautioned that the proper role of courts on review of peer review decision s " is not to substitute our judgment for that of the hospital's governing board or to reweigh the evidence regarding the renewal or termination of medical staff privileges." Bryan , supra , 33 F. 3d
at 1337 . Other courts applying the statute have expressedA - 5112
- 12T2 24 comparable deference to hospitals , their peer reviewers, and their internal decision

- makers . See, e.g. , Harris v. Bradley Mem. Hosp. & Health Ctr. , 50 A. 3d 841, 858 (Conn. 2012) (noting that in enacting the HCQIA, Congress intended to "resolve the question of immunity under the federal act as early as possible and to reinforce judicial deference to hospital decision

making") , cert. denied , 133 S. Ct. 1809, 185 L. Ed. 2d 812 (2013) . Similar public policies are reflected in our S tate 's cognate immunity statute, N.J.S.A. 2A:84A
- 22.10 . Like the
federal law , the New Jersey statute provides broad immunity for damages to qualified persons for actions taken as part of a hospital's peer review process. As is relevant here, N.J.S.A.
2A:84 A - 22.10 provides that:

Any person who serves as a m ember of, is staff to, under a contract or other formal agreement with, participates with, or assists with respect to an action of:

. . . . d . A hospital peer review committee having the responsibility for the review . . . of matters concerning the limit ing the scope of hospital privileges . . .

. . . . shall not be liable in damages to any person for any action t aken or recommendation made by him with i n the scope of his function w ith the committee, subcommittee or socie ty inA - 5112
- 12T2 25 the performance of said p eer - review, ethics, grievance, judicial, quality assurance or professional relations review function, if such action or recommendation was taken or made without malice and in the reasonable belief after reasonable investigation that such action or recommen dation w as warranted upon the basis of facts disclosed . [(Emphasis added).] Although N.J.S.A. 2A:8 4 A - 22.10 was adopted in 1979, it has been cited only infrequently in published case law , at times just in passing . 11 None of those cases has specifically
addressed the legal questions presented here concerning the evidentiary burden of a party seeking to overcome the immunity, and what, if any, discovery, such a challenger is entitled to obtain before the trial court r ules on a defendant's motion to dismiss based upon the New Jersey immunity. 12

11 See, e.g. , Patel v. Soriano , 369 N.J. Super. 192, 251 n.15 (Ap p. Div.) (noting the statutory immunity provided to a "hospital performing its credentialing function on applicants for surgical privileges") , certif. denied , 182 N.J. 141 (2004) ; see also Bainhauer v. Manoukian , 215 N.J. Super. 9, 38 (App. Div. 1987) (mentioning the conditional privilege afforded to physicians involved in hospital peer review but resolving the underlying law suit on other grounds).

12 If, in fact, the federal immunity protects defendants, then there is no need to reach the application of the overlapping state - law immunity.A - 5112
- 12T2 26 III . Having canvassed the se key aspects of the f ederal and s tate immunity statutes, w e now consider the propriety of the trial court's dismissal of plaintiff's complaint seeking monetary damages . 13 We also examine the related question of whether the
court's enforcement of defendants' immunities , thereby leaving plaintiff without further discovery , was premature. Before delving into that analysis, we dispose first of two procedural
matters.

A . First, we reject plaintiff's argument that the Consent Order should be construed as a waiver of defendants' right,
based on the ir federal and state immunities , to oppose plaintiff's claims . The terms of the Co nsent Order cannot be reasonably interpreted to bar defendants from inter posing their immunity arguments. The plain language of the Consent Order provides that the parties "reserve all rights concerning the claims and defenses ." (emphasis added).

A c ons ent o rder is, in essence, an agreement of the parties that has been approved by the court. As the Supreme Court has

13 Plaintiff's complaint in the Law Division deleted his request that he had made earlier in the Chancery Division for the equitable relief of reinstatement of his clinical privileges. Hence, the only specified relie f that he now seeks is monetary damages.A - 5112
- 12T2 27 consistently noted, one of the " ' fundamental canons of contract construction require that we examine the plain language of the
contract and the parties' intent, as evidenced by the contract's purpose and surrounding circumstances. ' " Highland Lakes Country
C lub & Cmty., Ass'n v. Franzino , 186 N.J. 99, 115 (2006) (quoting State Troopers Fraternal Ass'n v. New Jersey , 149 N.J. 38, 47 (1997) (ci tations omitted) ) . The plain language of the
Consent O rder here is not ambiguous , nor is it obscured by the surrounding circumstances. Defendants clearly did not forfeit in the Consent Order their right to invoke the ir statutory immunities, or their righ t to invoke them as soon as the litigation was reactivated. Moreover, our Court Rules explicitly state that a request to dismiss for failure to state a claim "may be made in any pleading permitted or ordered or by motion for summary judgment

or at the tri al on the merits." R. 4:6
- 7 (emphasis added). Thus, by its very terms, Rule 4:6
- 7 permits a party to raise the
defense of a failure to state a claim as late as trial , as well as sooner on motion . See Buteas v. Raritan Lodge No. 61 F. &
A.M. , 248 N.J. Su per. 351 (App. Div. 1991); see also Pressler & Verniero, Current N.J. Court Rules , cm t . 1 on R. 4:6
- 7 (2015) (stating that a defense under Rule 4:6
- 2 (e) "may be raised as late as trial"). We further note that defendants did, in fact,A - 5112
- 12T2 28 assert the defense of failure to state a claim in response to plaintiff's amended verified complaint that he had filed earlier in the Law Division , albeit in a footnote in their motion
papers, before the Consent Order was entered. We recognize that defendants agreed in the C onsent Order
that plaintiff could reinstate his amended complaint. However, as plaintiff stated at the appellate argument, he sought to "reinstate" not his First Amended Complaint but his Second Amended Complaint. In any event, had defendants a cceded to reinstatement of his First Amended Complaint and then opposed
further amendment or moved to dismiss, the end result would have
been the same.

B. A second preliminary facet that we must address is the appropriate procedural context in which to evaluate de fendants'

case - dispositive motion. To be sure, defendants' motion was couched as a motion to dismiss under Rule 4:6
- 2(e) for failure to state a claim upon which relief may be granted. However, both parties in their submissions respecting that motion, as well as the trial court, made reference to and relied upon
document a ry materials from the hospital's internal review
process . Those materials were beyond the four corners of the complaint , although excerpts of them were quoted or referred toA - 5112
- 12T2 29 in the compla int . In his ruling, the judge at times referred to the entire record presented to him, which clearly went beyond the discrete excerpts quoted and otherwise referred to in the pleadings. As such, defendants' motion to dismiss most properly should be concei ved as a dismissal motion converted to a motion for summary judgment under Rule 4:46
- 1 to
- 6, as is permitted
under the last sentence of Rule 4:6
- 2. 14 Viewed properly in this more expansive context, we must evaluate the record before us under the customa ry standards of summary judgment practice. See Brill v. Guardian Life Ins. Co.
of Am. , 142 N.J. 520, 540 (1995). In particular, we are to read the record in a ligh t most favorable to plaintiff and accord all favorable inferences to plaintiff that can be reasonably drawn
from that record. See R. 4:46
- 2; Brill , supra , 142 N.J. at 540 ; see also Murray v. Plainfield Rescue Squad , 210 N.J. 581, 584 (2012) (applying the same R ule 4:46 standards on appellate review of a summary judgment order). Upon doing so, we are satisfied , for the reasons we explain, infra , that the trial

14 R. 4:6
- 2 (" If, on a motion to dismiss based on the defense numbered (e), matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and dis posed of as provided by R. 4:46, and all parties shall be given reasonable opportunity to present all material pertinent to such a motion. ").A - 5112
- 12T2 30 court's entry of final judgment in defendants' favor was sound and not premature. 15

C . We turn to the s ubstance of the immunity arguments. Even viewing the record in a light most favorable to plaintiff, we agree with Judge Grispin that defendants are entitled to immunity from damages as a matter of federal and New Jersey statutory law, and that plaintiff h as failed to present a sufficient basis to vault those immunities. As Judge Grispin correctly found, defendants are clearly within the presumptive scope of the federal immunity under the HCQIA. The hospital's internal review of plaintiff's performance un questionably comprises a "professional review activity" under 42 U.S.C.A. § 11151 (10). The participants in the review, including the Medical S taff, the Investigating Committee, the MEC, the hearing panel, and the Board of Trustees are all "professional re view bodies" wit h in the ambit of the

15 Even if, for the sake of discussion, the standards for dismissal under Rule 4:6
- 2 (e) are applied here rather th an the summary judgment standards, see, e.g. , Printing Mar t - Morristown v. Sharp Elecs. Cor p. , 116 N.J. 739, 746 (1989) , we remain persuaded that the immunity statutes control t his case and mandate dismissal of the lawsuit . "A pleading should be dis m issed if it states no basis for relief and discovery would not provide one." Rezem Family Assoc s . , L.P. v. Borough of Millstone , 423 N.J. Super. 103, 113 (App. Div. ) , certif. denied , 208 N.J. 366 (2011) .A - 5112
- 12T2 31 statute. See 42 U.S.C.A. § 11151(11). The various recommendations and decisions to impose sanctions upon plaintiff

—— initially a recommended suspension and ultimately the Board

of Trustees' revocation of plaintiff 's clinical privileges

—— comprise "professional review actions" as defined under 42
U.S.C.A. § 11151(9), because they adversely affected plaintiff's
status at the hospital . As we have already noted, defendants and the other participants in the hospital's in ternal review process are presumptively immune under the HCQIA from monetary damages if they acted in " the reasonable belief that the[ir] action[s] were in the furtherance of quality health care," 42 U.S.C.A. §
11112 (a) (1), "after a reasonable effort to ob tain the facts of the matter," 42 U.S.C.A . § 11112 (a) (2), after "adequate notice and hearing procedures are afforded to the physician . . . or after such other procedures as are fair to the physician under the circumstances," 42 U.S.C.A. § 11112 (a) (3), and with a "reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts" and after appropriate notice and fair procedures. 42 U.S.C.A. §
11112 (a) (4). More simply stated, the federal immunity presumptively governs this case, so long as the hospital and its participantsA - 5112
- 12T2 32 proceeded in a fair and reasonable manner and with a reasonable belief that the actions taken were in furtherance of quality
health care and warranted by the facts . The record provides no evidence, n or even a plausible indication, that defendants failed to comport with these norms of fairness and
reasonableness. Plaintiff failed to carry his burden to rebut the presumption, or even create a material issue of fact. The judicial power to intervene in disputes over a physician's clinical privileges is circumscribed. As this court held almost thirty years ago in an opinion coincidentally involving a nother physician whose privileges had been terminated at Overlook, "[j ]udicial review of hospital decisions regarding admission to medical staff, extent of privileges and termination is very limited." Zoner aich v. Overlook Hosp. , 212 N.J. Super. 83, 90 (App. Div.) , certif. denied , 107 N.J. 32 (1986) . "Hospital officials ar e vested with wide managerial discretion, to be used to elevate hospital standards and to better medical

care." Ibid. (citing Greisman v. Newcomb Hosp. , 40 N.J. 389, 403 (1963)). "So long as hospital decisions concerning medical staff are reasonable, are consist [ e ] nt with the public interest, and further the health care mission of the hospital, the courts will not interfere." Ibid. (citing Desai v. St. Barnabus Med . Ct r . , 103 N.J. 79 (1986) , and Belmar v. Cipolla , 96 N.J. 199,A - 5112
- 12T2 33 208 (1984)). Although Zoner aich did not involve the HCQIA (which, as it so happened , was enacted by Congress that same year) , these same general principles pertain in applying that federal immunity. That said, our courts have also recognized that "a physician is entitled to f undamentally fair procedures in a non

profit hospital's consideration of staff membership, the extent of privileges and termination." Id. at 91. Accordingly, the hospital seeking to suspend or oust a physician must provide notice to the affected physicia n of the charges or the hospital 's proposed action before an internal hearing. Ibid. "The tribunal must be fair and unbiased." Ibid. The physician has a qualified right to retain counsel and a right to disclosure of certain information, " limited by rec ognition of competing rights to privilege and confidentiality." Ibid. (emphasis added) (citing Gar row v. Elizabeth Gen . Hosp . & Dispensary , 79 N.J. 549, 566
- 68 (1979) ) . As our Supreme Court noted in Garrow and we reiterated in

Zoner aich , "[j]udicial review of a hospital board action 'should properly focus on the reasonableness of the action taken in relation to the several interests of the public, the [physician], and the hospital.'" Zoner aich , supra , 2 12 N.J. Super. at 91 (emphasis add ed) (quo ting Garrow , supra , 79 N.J. atA - 5112
- 12T2 34 565 ) . Because of the internal nature of the hospital's private hearing, "'[t]he proper standard upon review is not identical with that customarily applied to administrative agencies, that is, substantial competent cr edible evidence.'" Ibid. (quo ting
Garrow , supra , 79 N.J. at 565). "'However, the record should contain sufficient reliable evidence, even though of a hearsay nature, to justify the result.'" Ibid. (quo ting Garrow , supra , 79 N.J. at 565).
The HCQIA likewise affords deferenc e to hospitals and their representatives when they make these difficult decisions concerning a physician's clinical privileges. That defe rence is manifested by the federal law 's express presumption that the immunity from damages applies unless the physician challenging
the ho spital's adverse decision proves , by a preponderance of the evid ence, that the decision

- makers took action without a reasonable belief that it was in furtherance of quality health

care , failed to provide adequ ate notice and hearing procedures,

or took action without a reasonable belief based on the facts
known aft er a reasonable investigation. See 42 U.S.C.A. § 11112(a) . The "reasonable belief" concepts in subsections (a)(1) and (a)(4) of Section 11112 are ob jective standards. In fact, as the House Committee report explains, the drafters of the federalA - 5112
- 12T2 35 immunity revised the bill to replace a "good faith" requirement contained in an earlier version to "a more objective 'reasonable belief'" standard. H.R. Rep. No. 99
- 903, at 10 (1986), reprinted in 1986 U.S.C.C.A.N. 6392
- 93. The Committee noted "concerns that 'good faith' might be misinterpreted as requiring only a test of the subjective state of mind of the physicians conducting the professional review action." Ibid. The Committee further declared its intention that the "reasonable belief" te st "will be satisfied if the reviewers, with the information available to them at the time of the professional review action, would reasonably have concluded that their action would restrict incompetent behavior or would protect patients." Ibid. The Comm ittee also expressed its "belief that this standard will be met in the overwhelming majority of professional review actions[.]" Ibid. (emphasis added). Consistent with the drafters ' intent, case law has repeatedly treated the "reasonable belief" test und er the statute as an objective test. 16

16 See, e.g. , Cohlmia v. St. John Med. Ctr. , 693 F. 3 d 1269, 1277 (10th Cir. 2012) ("The entity or persons that undertake the professional review are immune under HCQIA as long as they substantially comply with a list of objective standards set forth in the Act.") ; Poliner , supra , 537 F. 3d at 377 ("[T]he HCQ IA's 'reasonableness requirements were intended to create an objective standard of performance, rather than a subjective good faith standard.'") ; Gordon , supra , 423 F. 3d at 205 (" [I]mmunity (continued)A - 5112
- 12T2 36 The HCQIA does not specify that a reviewing court must be provided with transcripts of the hospital's internal hearing in
order to evaluate the adequacy of the hospital's proceedings. Although we recognize tha t the tr ial court in Zo ner ai ch was apparently supplied with a record of the hospital's internal proceedings, we do not construe the HCQIA to require that such transcripts be furnished in every case. The transcripts are not vital where , as here, the other documents provided to the court sufficiently establish that the physician was afforded a fair and reasonable opportunity to be heard, and show that the hospital's ultimate decision was reasonably attained based upon factual determinations generated from t hose internal hearings.
N.J.S.A. 2A:84A
- 22.10 extends a similar form of immunity protection for hospitals, peer revie wers, and decision

- makers.
(continued) will be judged by applying the objective standard regarding whether the Hospital based its actions upon the reasonable belief that they are in furth erance of quality healthcare."); Meyers v. Columbia/HCA Healthcare Corp. , 341 F. 3d 461, 468 (6th Cir. 2003) ("[The HCQIA] is an objective standard, rather th an a subjective good faith requirement.") ; Freilich v. Upper Chesapeake Health , 313 F. 3d 202, 212 (4th Cir. 2002) ("[T]he HCQIA's objective reasonableness standard is a perfectly valid guide for peer review bodies."); Singh , supra , 308 F. 3d at 32 ("[S]iste r circuits have uniformly applied all the sections of § 11112(a) as objective standards") ; Sugarbaker v. SSM Health Care , 187 F. 3d 853, 857 (8th Cir. 1999) ("[T]he reasonableness requirements contained in section 11112(a) necessitate an objective inquiry." ) , cert. denied , 528 U.S. 1137, 120 S. Ct. 980, 145 L. Ed. 2d 931 (2000) .A - 5112
- 12T2 37 Th e provision broadly covers "any person" involved in such review of a physician "for any action taken or reco mmendation made by [that person] within the scope of [that person's] function" in that role. N.J.S.A. 2A:84A
- 22.10(e). Th is state law immunity applies , so long as "such action or recommendation
was taken or made without malice and in the reasonable belie f after reasonable investigation that such action or recommendation was warranted upon the basis of facts disclosed."
N.J.S.A. 2A:84A
- 22.10 ( e) ( emphasis added) . 17 Although the term "malice" is not defined within N.J.S.A.
2A:84A
- 22.10, the conventional meaning of that term suggests that the sanctioned physician must prove that the hospital
defendants acted , in essence, either with ill will , without just

cause, 18 or with a reckless disregard of the truth of the facts

17 Unlike the federal statute, the New Jersey statute does not contain an express presumption that the state

- law immunity controls and must be overcome by the plaintiff.

18 In other contexts, malice "is defined as 'the intentional doing of a wrongful act without just cause or excuse.'" LoBiondo v. Schwartz , 199 N.J. 62, 93
- 94 (2009) (quoting Jobes v. Evangelista , 369 N.J. Super. 384, 398 (App. Div.) (defining malice in the context of a malicious prosecution case) , certif. denied , 180 N.J. 457 (2004) ) ; see also Lamorte Burns & Co. v. Walters , 167 N.J. 285, 306 (2001) (noting, in the context of tortious interference, that "malice" means that "harm was inflicted intentionally a nd without justification or excuse").A - 5112
- 12T2 38 regarding the physician's quality of ca re. 19 The "reasonable belief" aspect of the New Jersey statute is also undefined. We discern no basis to construe it any differently than the federal immunity statute 's usage of that term. We have no doubt that plaintiff was provided here with a procedur ally fair opportunity to be heard during the hospital's internal process. He was given multiple opportunities to provide written submissions to the hospital's reviewers and decision

- makers. He was advised before the formal hearing conducted by the hearin g panel of the specific patient cases
that would be t he subject of review. He was represented in the internal hearings by able and experienced counsel who is a certified civil trial attorney . He apparently testified and also presented his own expert witness. Th e findings of the Investigating Committee and, thereafter, of the hea ring panel, were clearly detailed in writing . By all indications, these p rocedures comported with the HCQ IA, the New Jersey statute , and case law. It is not as if plaintiff had been abruptly summoned before the Board of Trustees without warning and summarily st ri pped of his privileges for no articulated reasons . T o the contrary, the

19 See, e.g. , DeAngelis v. Hill , 180 N.J. 1, 13 (2004) (applying such a notion of "malice" in the context of a defamation case).A - 5112
- 12T2 39 Board's final decision was the culmi nation of a lengthy and elaborate process , one in which plaintiff had many opportunities to present opposition and, presumably, to settle the matter on
the terms recommended in succession by the internal reviewers. Attempting to meet his burden to establi sh un reasonableness or other improper conduct , plaintiff points to three aspects of the chronology that he contends are indicia that defendants' statutory immunitie s should be overcome. He specifically alleges in his reply brief that: (1) defendants did not have a reasonable belief that their actions as to him were in the furtherance of qua lity health care; (2) they failed to provide him with adequate notice of the first investigation and of the initial referral to the outs ide reviewer; and (3) they lacke d a reasonable belief that the sanctions recommended and imposed
were warranted. As to that latter point, plaintiff emphasizes that the sanction of revocation ultimately imposed by the Board of Trustees was harsher than the conditional suspension

recommen ded by both the MEC and the hearing panel. We concur with the trial court that t here is no merit to these contentions of unfairness . The record provides an ample basis to justify the hospital's decision to pursue a review of the care tha t plaintiff had p rovided to several of his patients . Indeed,A - 5112
- 12T2 40 those concerns were borne out by the adverse findings of the outside reviewer, the Investigating Committee, and the hearing panel. T he documents in the appendices readily show that
defendants had a reasonable basis to believe that the professional review and remedial action they took was pursued to
further the quality of health care being provided to the hospital's patients . In general, the applicable nexus to the " quality of health

care " wil l be satisfied under the HCQIA if the reviewing body, based on the information before it, "would reasonably have
conclude d that [ its ] action would restrict incompetent behavior

or would protect patients." Gordon , supra , 423 F. 3d at 202 (quoting H.R. Rep. No. 99
- 903 , at 10 (1986), reprinted in 1986
U.S.C.C.A.N. 6393 ) . A s the Fifth Circuit has noted, the HCQIA "does not require that the professional review result in an actual improvement of the quality of health care, nor does it require that the conclusions reached by the reviewers were in
fact correct." Poliner , supra , 537 F. 3d at 378 (quoting Imperial v. Suburban Hosp. Ass'n, Inc. , 37 F. 3d 1026, 1030 (4th Cir. 1994)). That observation is consistent with the fact that Congress prescribed , unde r 42 U.S.C.A. § 11112(c), that a professional review board may immediately suspend clinical privileges "where the failure to take such an action may resultA - 5112
- 12T2 41 in an imminent danger to the health of any individual." Ibid. As the Third Circuit has observed, " the good or bad faith of the reviewers [under the HCQIA] is irrelevant." Brade r v. Allegheny Gen. Hosp. , 167 F. 3d 832, 840 (3d Cir. 1999 ) (" Brader II ") . At the time its nearly ye ar - long review process began, the hospital had outstanding concerns regarding plaintiff's management of his patients and his documentation of their
treatment . Indeed, as the outside reviewer concluded in his report, plaintiff "either did not understand the appropriate steps in management or approached the situation too pa ssi vely. Neither is acceptable." Moreover, plaintiff himself acknowledged in his Second Amended Complaint that two of his patients "had recognized complications ass ociated with their surgeries." The fact that tho se patients eventually recovered is not d ispositive. The record manifestly shows that the hospital's initiation of the review process was reasonable. We also reject plaintiff's next claim that defendants are dis entitled to immunity because they failed to provide him with advance notice of the f irst steps of the outside review and investigation. As federal case law instructs, "nothing in the [HCQIA] requires that a physician be permitted to participate in the review of his [ own patient ' s ] care." Singh , supra , 308 F. 3d
at 44 (citation omitted) . The HCQIA applies to "discreteA - 5112
- 12T2 42 decisions, not an on

- going course of conduct." Wojewski v. Rapid City Reg'l Hosp., Inc. , 730 N.W. 2d 626, 636 n. 9 (S.D. 2007) (applying the HCQIA's immunities). Plaintiff's third argument , contending that defendants
lacke d a reasonable belief that the sanctions a gainst him w ere actually warranted , is similarly fla wed. He contends tha t the
Board of Trustees "consistently and inexplicably disregarded" the independent recommendations made regarding his performance. In his v iew, the Board of Trustees did not possess a reasonable belief that its decision t o revoke his privil eges was warranted. The trial judge rejected this specious assertion , and so do we. Courts generally agree that "the reversal of a peer review committee' s recommendation of an adverse professional review action by a higher level peer re view panel does not indicate
that the initial recommendation w as made without a reasonable belief that the recommendation would further quality health

care. " Singh , supra , 308 F. 3d at 41 (citing Austin v. McNamara , 979 F. 2d 728, 735 (9th Ci r. 1992) (granting immunity in a situation where a hospital's j u dicial r eview c ommittee
overturned a m edical e xecutive c ommittee's recommendation of an adverse professional review action) ). The converse is also
true.A - 5112
- 12T2 43 The mere fact that, as plaintiff's counsel's phrased it at oral argument before us, the hospital decision

- makers "ratch et e d up" the sanctions as the matter progressed does not signify that
th e Board of Trustees or the other hospital decision

- makers acted unreasonably or maliciously. In the motion arguments below, Judge Grispin aptly analogized the present case to attorney discipline cases, in which the Supreme Court sometimes imposes a harsher ultimate sanction on a licensee than that recommended by the Disciplinary Review Board. 20 The ultimate authority to make privilege decisions within the hospital rests with the Board of Trustee s under the hospital's bylaws , and the Board's selection of a harsher penalty in this case does not mean that it acted maliciously or unreasonably . The Board had a reasonable cause for serious concern after the hearing panel concluded from the testimony it heard that plaintiff had made a false entry on a patient chart. Whether or
not that discret e finding is actually true is beyond our limited

20 Although the Supreme Court "ordinarily place[s] great weight on the recommendation of the Disciplinary Review Board," the Court "[does not] not hesitate to impose a more severe sanction than that recommended by the Board when circumstances warrant." In re Kushner , 101 N.J. 397, 403 (1986) ( citations omitted ) (finding the attorney's false certification a "grave misconduct" and elevating the Disciplinary Review Board 's recommended one
year suspension to three years); see also In re Rosen , 88 N.J. 1, 3 (1981) (finding the attorney's subornation of perjury "inex cusable and reprehensible" and elevating the D isciplinary Review Board 's proposed one
- year suspension to three years).A - 5112
- 12T2 44 scope of review. True or not, the finding alone reasonably supported the Board of Trustees' discretionary decision to revoke plaintiff's privileges. Moreover, plaintiff apparently bypassed numerous opportu nities to resolve this matter with the
lesser s anctions recommended by the MEC, the Investigating Committee, and the hearing panel before the matter reached the
Board level.

D . As a final matter, we consider plaintiff's argument that the trial court acted prematurely in dismissing his lawsuit without further discovery, particularly in denying his request
for the depositions of persons involved in the hospital's review, investigation, and decision

- making process . We are satisfied that Judge Grispin did not misapply his discretion in curtailing further discovery and in adjudicating the immunities
of defendants on the law and on the record supplied to him. Neither the HCQIA nor N.J.S.A. 2A:8 4A
- 22.10 specifies what amount of discovery, if any, is warranted before a trial court may adjudicate the merits of the immunities invoked by a hospital or individual defendants who participated in the review
of a physician's cl inical privileges . We are mindful, however, of the House Committee's guidance that the immun ity question under the HCQIA may be resolved at "an early stage ofA - 5112
- 12T2 45 litigation , " and that court may do so "even though other issues in the case remain to be resolved." H.R. Rep. No. 99
- 903, at 12 (1986) , reprinted in 1986 U.S.C.C.A.N . at 6394.
The federal case s display no consistent pattern in the level of discovery afforded to physicians who challenge hospital defendants' assertions of HCQIA immunity. In some instances, the federal courts have found that the plaintiff physician was entitled to lim ited discovery of the peer review process. See,
e.g. , Wah i v. Charleston Area Med. Ctr., Inc. , 453 F. Supp. 2d 942, 948 (S.D. W. Va. 2006) (authorizing limited discovery, in the form of numerically

- capped interrogatories, requests for admissions, and time

- limited depositions) , aff'd , 562 F. 3d 599 (4th Cir. 2009) , cert. denied , 558 U.S. 1158 , 130 S. Ct. 114 0,
175 L. Ed. 2d 991 (2010) ; Teasdale v. Marin Gen . Hosp . , 138

F.R.D. 691, 694 (N.D. Cal. 1991) (authorizing the production of peer review documents); see also Sugarbaker , supra , 187 F. 3d at
857 (noting that the trial court had allowed depositions of persons involved in the hospital's pe e r review process, where the reasonableness of that process, including claims of antitrust violations by the defendants , had been plausibly challenged by plaintiff ) .A - 5112
- 12T2 46 Conversely, in some instances , the HCQIA immunity issues
were resolve d by the trial court at an early stage by granting a motion to dismiss for failure to state a claim upon which relief may be granted. See, e.g. , Straznicky v. Desert Springs Hosp. , 642 F. Supp. 2d 1238, 1240 (D. Nev. 2009) (granting dismissal of plaintiff's damage claims, with prejudice, based solely on the allegations of the plaintiff's complaint and related documents
that the plaintiff phy sician had supplied to the court in connection with his motion for a temporary restraining order); Sobel v. United States , 571 F. Supp. 2d 1222, 1229 (D. Kan. 2008) (granting the defendants' motion t o dismiss under the
HC QIA on the face of the pleadings, f inding, among other things, that the plaintiff physician had not asserted sufficient g rounds
to overcome the statute's presumption of immunity ) . At the very least, the question of immunity under the HCQIA may be resolved in appropriate cases at the summar y judgment stage. As the Ninth Circuit has observed , because the "reasonableness" requirements of 42 U.S.C.A. § 11112(a) were "intended to create an objective standard, rather than a subjective standard [of judicial review] , this inquiry may be
resolved o n summary judgment ." Smith v. Ricks , 31 F. 3d 1478, 1485 (9th Cir. 1994) , cert. denied , 514 U.S. 1035, 115 S. Ct. 1400, 131 L. Ed. 2d 287 (1995) . The question then becomesA - 5112
- 12T2 47 whether a plaintiff has been afforded a sufficient opportunity to obtain facts that might bear upon that objective assessment. The sparse case law under the analogous New Jersey immunity
statute is not instructive on the discovery question. As with the federal statute, it is logical to conclude that a defendant's entitlement to immuni ty under N.J.S.A. 2A:84 A - 22.10

can at times be resolved on a dispositive motion. It is equally sensible to conclude that a plaintiff's right to discovery on
the state
- law immunity issues may be reasonably limited by a trial judge. We decline to adopt a per se rule declar ing that a plaintiff physician who has lost his clinical privileges is always entitled to depositions or other full
- blown discovery in litigating HCQIA immunity issues. Such a blanket right would conflict with the intent of Congress to p ermit the HCQIA imm unity to be adjudicated at an "early stage of litigation" in appropriate cases. Nor do we construe the New Jersey immunity
statute to create such an absolute right. In some cases, an unfettered right to discovery would needlessly entangle hospitals and review participants in depositions and other litigation activities, thereby diluting the practical benefit of the immunity protection conferred upon them by statute. A lthough we are mindful that these statutesA - 5112
- 12T2 48 provide hospital defendants with immunity from damages rather than immunity from sui t, we also appreciate that protra cted discovery easily can be costly and burdensome for the persons and entities involved. An ap propriate balance can, and should,
be struck.
We therefore adopt a case
- by
- case approach that reposes discretion in the trial court to determine to what extent discovery on the immunity issues should be permitted. See,
e.g. , R. 4:46
- 5 (granting trial ju dges authority to defer decisions on summary judgment motions where the party opposing the summary judgment motion demonstrates, by affidavit, that additional discovery is needed to respond to the motion) . Such

a case - specific approach is consistent with the important role that our civil trial judges routinely perform in balancing the needs of litigants to obtain relevant information against the often significant burdens and costs of the discovery process. The exercise of wise judicial discretion in strik ing a proper balance of those interests is particularly important where, as here, immunity statutes are involved. On appeal, we generally will not second

- guess a trial judge's exercise of discretion in discovery matters unless the appellant demonstrates th at such discretion was abused. Pomerantz Paper Corp. v. New Cmty. Corp. , 207 N.J. 344, 371A - 5112
- 12T2 49 (2011); Bender v. Adelson , 187 N.J. 411, 428 (2006). We must review the trial court's denial of additional discovery to plaintiff here through that prism of defere nce.
Here , plaintiff already received at least some amount of
pa per discovery in the Chancery Division action. Plaintiff and his attorney actively participated in the two hearings before
the hospital's hearing panel. He now demands depositions , on the conjectur al supposition that such adversarial questioning of
th e hospital's representatives might reveal a proverbi al "smoking gun" reflect ing malice or some form of unreasonable conduct on their part. We concur with Judge Grispin that, given the particular
context of this case, there is no need to allow such depositions to proceed when defendants' entitlement to immunity is so clear. Even if depositions proceeded, the individual deponents ( or the hospital itself ) might asser t absolute or qualifi ed privileg es from disclosure under potentially

- applicable confidentiality
laws , and might decline to answer some or all of plaintiff's queries . See, e.g. , C.A. v. Bentolil a , 219 N.J. 449, 451 (2014) ( involving privileges from disclosure under the New Jer sey Patient Safety Act) ; 21 Christy v. Salem , 366 N.J. Super. 535,

21 Although defendants have cited to the Patient Safety Act, N.J.S.A. 26:2H
- 12.23 to
- 12.25, we make no conclusive (continued)A - 5112
- 12T2 50 541
- 45 (App. Div. 2004) (recognizing a qualified privilege from disclosure under a hospital's peer review privilege). As the Supreme Court recently underscored in C.A. , there are strong publ ic policies recognized by the Legislature in encouraging the free flow of evaluative communications within a hospital made in

a n effort to improve future patient care . C.A. , supra , 219 N.J.
at 473 . We need not and do not resolve the applicability of
these confidentiality laws and public policies, but simply acknowledge that they might well limit the scope of any additional discovery if it had been allowed . Other than his vague suppositions that his circumstances were unfai rly considered by the hospital and its representatives, plaintiff has not set forth a proffer, in a sworn affidavit pursuant to Rule 4:46
- 5 or otherwise, that specifies what information he would intend to elicit from the hospital's representatives at their depositions. If plaintiff wants to ask them why they did what they did, the reasons are
self
- evident from the written findings of the Investigati ng

(continued) determination that the Act applies to the communications in this case. See N.J.A.C. 8:43E
- 10.9(b)(1) (limiting the protection of the Patient Safety Act to documents, materials, and information developed by a h ealth care facility "exclusively" d uring the process of self
- critical analysis); see also , C.A. , supra , 219 N.J. at 467
- 68. At the very least, the potential applicability of that statute would no doubt complicate the discovery process.A - 5112
- 12T2 51 Committee , the hearing panel, and the B oard of Trustees

—— all of which he already has in his possession. In addition, this is not a case in which antitrust violations have been alleged, which has been true in some of the federal cases where more extensive discovery was permitted. See, e.g. , Brade r v. Allegheny Gen. Hosp. 64 F. 3d 869, 876 (3 d Cir. 1995) (" Brader I ") (reversing the district court's dismissal of the plaintiff's complaint, in part, because "the adequacy of a physician's contentions regarding the effect on competition is typically resolved after discovery, either on

su mmary judgment or after tr ial"); see also Sugarbaker , supra , 187 F. 3d at 857 (likewise involving discovery completed of a case involving antitrust claims). Where such colorable antitrust claims are present, the factual and legal complexity
of the case may be greater and the justif ication for plenary discovery may be heighte n ed. Plaintiff's complaint, which he has amended multiple times, makes several conclusory allegations tha t defendants acted "maliciously " and "arbitrarily " in taking away his clinical privileges. As Judge Gri spi n cor rectly recognized, the m ere inclusion of such normative adverbs with in a physician's complaint does not justify a free
- wheeling discovery missionA - 5112
- 12T2 52 delving into a hospital's internal review and investigation of
that physician 's poor performance.
The trial court reasonably concluded that plaintiff already had been provided with enough information to attempt to surmount the statutory immunities. Because the court did not abuse its discretion, we sustain its sensible decision to curtail additional disco very and to disallow depositions of the hospital's representatives. Affirmed.