UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1360

PHYLLIS M. BRASWELL, Administrator of the

Estate of W. Kelley Braswell, M.D.,

Plaintiff - Appellant,

versus

HAYWOOD REGIONAL MEDICAL CENTER,

Defendant - Appellee,

and

HARRY LIPHAM, M.D.; ERIC REITZ, M.D.; DEBERA

HUDERLY, M.D.; LUIS MUNOZ, M.D.; DAVID

PETERSON, M.D.; CHRISTOPHER WENZEL, M.D.;

RICHARD STEELE, M.D.,

Defendants.

Appeal from the United States District Court for the Western

District of North Carolina, at Asheville. Lacy H. Thornburg,

District Judge. (1:04-cv-00092)

Argued: February 2, 2007 Decided: April 26, 2007

Before WIDENER, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: John Boling Meuser, Raleigh, North Carolina, for Appellant.

William Carleton Metcalf, Philip J. Smith, VAN WINKLE, BUCK, WALL,
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STARNES & DAVIS, P.A., Asheville, North Carolina, for Appellee. ON

BRIEF: Allison Serafin, LAW OFFICES OF JOHN MEUSER, P.A., Raleigh,

North Carolina, for Appellant. Carolyn L. Coward, VAN WINKLE,

BUCK, WALL, STARNES & DAVIS, P.A., Asheville, North Carolina, for

Appellee. 

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

W. Kelley Braswell, M.D. (now deceased) filed this suit

against the state-owned Haywood Regional Medical Center (the

Hospital) and seven individual doctors after the Hospital suspended

his medical privileges in 2003. (Although the administrator of

Braswell’s estate has been substituted as the plaintiff-appellant,

we will, for sake of clarity, use Braswell’s name throughout this

opinion.) Braswell, who had medical privileges at the Hospital,

alleges that his privileges were revoked in retaliation for

exercising his First Amendment rights and that the summary

suspension of his privileges violated his due process and

contractual rights. We affirm the district court’s order granting

summary judgment to the defendants. We treat Braswell as a public

employee and conclude that his speech was not protected because the

Hospital’s duty to provide quality health care outweighed his

interest in expressing concerns about the Hospital’s efforts to

recruit surgeons. Further, we conclude that the Hospital

reasonably believed that quick action was necessary to protect

patient safety, thus justifying the summary suspension of

privileges.

I.

Because the district court granted the defendants’ motion

for summary judgment, we state the facts in the light most
4

favorable to the non-movant, Braswell, drawing all reasonable

inferences in his favor. Seabulk Offshore, Ltd. v. Am. Home

Assurance Co., 377 F.3d 408, 418 (4th Cir. 2004). Braswell, a

partner at the privately owned Midway Medical Center, was one of

four surgeons in Haywood County, North Carolina. The other three

general surgeons, Drs. Reitz, Sharpton, and Sufian, maintained

separate practices but shared office space and expenses. All four

surgeons had medical privileges at the Hospital, a state-owned

facility, which permit them to perform operations at the Hospital’s

facilities. In return, the doctors must be on call for the

Hospital, which requires them to be available at certain times to

treat patients admitted to the emergency room. The doctors’

relationship with the Hospital is governed by the Medical Staff

Bylaws.

In 2000 Braswell recruited Dr. Dearl Birdsong, another

general surgeon, to join Midway Medical. Haywood County’s other

three surgeons offered a position to Dr. Larry Herberholz. The

Hospital, which had previously determined that the county could

support 1.8 additional surgeons, facilitated these efforts by

offering both candidates recruitment contracts. The contracts

provided incentives (guaranteed income, relocation allowance, and

education matching loan allowance) to encourage the doctors to

practice in Haywood County.
5

In January 2001, before either of the candidates signed

contracts with the Hospital, Braswell sent Herberholz a letter

stating: 

I have some concerns about bringing two surgeons to this

area at the same time. Counting outmigration we only

have a county population of about 40,000. That is a

pretty small group for 6 general surgeons to maintain an

active practice. 

J.A. 295. Braswell also sent a letter to the chairman of the

Hospital’s finance committee, which he enclosed with his letter to

Herberholz. This letter repeated his concerns about bringing two

additional surgeons to the county: 

I have polled a sample of the medical staff and none feel

that 6 general surgeons are needed in this county. Of

the 4 general surgeons who are currently in the county

only one feels that 6 general surgeons are needed here.

I think that we will be doing a significant disservice to

both of these individuals if both are brought here. In

addition this may represent a nearly half million-dollar

blunder by the hospital in terms of [financial]

guarantees which cannot be met.

J.A. 296. Herberholz subsequently accepted an offer outside of

Haywood County.

The Hospital’s Board of Commissioners (the Board)

expressed its displeasure that Braswell sent the letter to

Herberholz with the knowledge that the Hospital had decided to

recruit two general surgeons. (Braswell was a member of the task

force that determined that Haywood County could support 1.8

additional surgeons.) Several members of the Board told Braswell

that “this type of conduct would sabotage [the Hospital’s]
*The Hospital, however, eventually voted to offer Birdsong a

recruiting contract on April 26, 2001. Birdsong worked in Haywood

County until mid-2003, although it is unclear which practice he was

associated with. J.A. 273.

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recruiting process if one practice could call a recruitment

candidate of another practice and sway the candidate’s placement 

decision.” J.A. 301.

Braswell contends that the Hospital immediately started

to retaliate against him. On February 22, 2001, the Board decided

to “table further discussions” of its ongoing contract negotiations

with Birdsong.*

 J.A. 300. According to Braswell, the three

surgeons in the competing practice refused to assist him in surgery

or to take calls for him when he had scheduling conflicts, and Dr.

Lipham, the Hospital’s Chief of Staff at the time, became “openly

hostile.” J.A. 17. In July 2000 the Board also denied Braswell’s

application for privileges to perform laparoscopic gastric bypass

surgery, concluding that the procedure was too dangerous to be

performed at the Hospital.

The first significant adverse employment action against

Braswell occurred at the end of 2002. On December 2, 2002,

Braswell performed a standard gastric bypass surgery on Patient F.

The patient suffered severe post-operative complications, including

renal failure, shock, and sepsis. Several doctors who consulted on

the case determined that there was a risk of death and recommended

that Braswell transfer the patient to a better-equipped facility.
7

Braswell refused. On December 14, Dr. Nancy Freeman, the

Hospital’s Chief of Staff confronted Braswell about Patient F and

insisted that he transfer the patient. Braswell “graced [Freeman]

with some expletives” during the conversation. J.A. 196.

As a result of Patient F’s experience, Freeman placed a

moratorium on all gastric bypass surgeries at the Hospital. She

also created the Gastric Ad Hoc Committee to review all gastric

bypass surgeries performed over the past two years. Six days

later, before the Gastric Ad Hoc Committee completed its review of

the past bypass surgeries, the Medical Executive Committee (MEC)

voted to suspend indefinitely Braswell’s privileges to perform the

gastric bypass procedure. The MEC decided to lift the general

moratorium because the problem with gastric bypass surgeries was

“physician specific.” J.A. 329.

On January 14, 2003, the Gastric Ad Hoc Committee

presented its review of the gastric bypass surgeries over the past

18 months (3 surgeries by Sharpton and 19 by Braswell) to the MEC.

The committee reported minor concerns with all of the surgeries.

It also reported major concerns in eight of Braswell’s surgeries

and one of Sharpton’s surgeries. Braswell was not present for the

committee’s presentation, nor was he provided with a copy of its

findings. After the committee reported its findings, the MEC

questioned Braswell about the surgeries. It then voted unanimously

to continue the suspension of Braswell’s gastric bypass privileges.
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The MEC also created the General Ad Hoc Committee to review

Braswell’s major surgical procedures in the upcoming months.

The General Ad Hoc Committee met with the MEC on May 6,

2003, to discuss its review of Braswell’s major surgeries over the

past three months. It reported concerns over Braswell’s care of

Patient H, who had been transferred to another hospital due to

complications arising from a bowel surgery. The MEC decided to

schedule a special meeting on May 27, 2003, to discuss the General

Ad Hoc Committee’s concerns.

Before the meeting could take place, however, the MEC

voted to suspend summarily all of Braswell’s surgical privileges.

The vote was prompted by a letter sent by the Surgical Case Review

Committee (SCRC), which had also reviewed Patient H’s file. (The

SCRC regularly reviews the files of patients who have unexpected

complications with a surgical procedure.) The SCRC expressed the

following concerns with Braswell’s care of Patient H: (1) stool

began to drain from the patient after the surgery; (2) Braswell did

not respond in a timely manner to the Hospital staff’s repeated

attempts to notify him of Patient H’s problems; (3) rather than

taking Patient H immediately back to surgery, Braswell ordered a CT

scan; and (4) Braswell refused to consult with Pulmonary or

Internal Medicine despite requests by the attending nurses. The

Hospital’s President, David Rice, officially suspended Braswell’s
9

privileges on May 21, 2003. Braswell did not have an opportunity

to defend himself before the suspension went into effect.

The MEC met with Braswell a week later to discuss his

care of Patient H. Braswell admitted that he should have taken the

patient back to surgery but denied that the patient was ever in

danger. The MEC stated that Braswell “appear[ed] not to understand

the severity of the concerns in this case.” J.A. 376. It also

expressed concern that the “problems seen in this case were the

same type of problems that had been addressed with Dr. Braswell at

his prior meeting with the MEC.” J.A. 377. The MEC unanimously

voted to continue the suspension of Braswell’s privileges.

Braswell then requested a Fair Hearing Committee to

review the Hospital’s decision. Braswell was represented by

counsel at the hearing, which lasted approximately 20 hours over a

three-day period in October and November 2003. Braswell’s chief

witness, Dr. Jesse Meredith, a professor of surgery at Wake Forest

University, testified that the MEC’s assessment of Braswell’s

performance was faulty. She stated, “I believe this is a situation

in which people, committees, who are not knowledgeable about the

issues at stake here, were asked to make judgment about the

patients which [sic] were at stake here.” J.A. 40-41. At the end

of the hearing, the Hearing Committee concluded: 

[T]here [were] legitimate and serious concerns regarding

Dr. Braswell’s preoperative assessment and postoperative

management of the cases presented during the

hearing. . . . 
10

However, it appears to this committee that Dr.

Braswell was not afforded ample opportunity to respond to

the allegations made prior to the summary

suspension. . . . 

The committee acknowledges that the MEC acted in

good faith and with the intention of protecting patients,

however, we are concerned by the apparent lack of

appropriate documentation by the hospital as required by

the bylaws.

J.A. 48. The report concluded that the “evidence did not support

summary suspension, and that other avenues of corrective action

. . . could have been investigated by the Medical Executive

Committee prior to summary suspension.” Id. Despite the Fair

Hearing Committee’s conclusion, the MEC again voted to continue the

suspension of Braswell’s privileges. The Appellate Review

Committee affirmed the MEC’s decision, which was adopted by the

Hospital’s Board.

Braswell then sued the Hospital and the seven members of

the MEC in the United States District Court for the Western

District of North Carolina. Braswell brought claims under 8 U.S.C.

§ 1983 for First Amendment retaliation and violations of his right

to due process. He also brought state law claims for defamation,

breach of contract, and tortious interference with contractual

relations. The district court dismissed the tortious interference

claim and later granted summary judgment to the defendants on the

remaining claims. Braswell appeals the district court’s grant of
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summary judgment on his two § 1983 claims and his state law breach

of contract claim. 

We consider each of Braswell’s three claims, beginning

with the First Amendment retaliation claim. Summary judgment is

appropriate only if there is no genuine issue as to any material

fact and the defendants are entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(c). Our review is de novo. Hill v.

Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir.

2004) (en banc).

II.

Braswell claims that the Hospital, a state actor,

violated his First Amendment rights by retaliating against him for

expressing his concern to Herberholz that Haywood County could not

support two new surgeons. Braswell contends that the decision to

postpone contract negotiations with his recruit (Birdsong), the

suspension of his gastric bypass privileges, and the termination of

his surgical privileges were motivated by the Hospital’s

displeasure with his constitutionally protected speech. 

The First Amendment protects not only the affirmative

right to speak, but also the “right to be free from retaliation by

a public official for the exercise of that right.” Suarez Corp.

Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000). To establish

a claim of First Amendment retaliation, a plaintiff must show that
12

(1) he engaged in protected First Amendment activity; (2) the

defendant took action that adversely affected his First Amendment

rights; and (3) there was a causal relationship between the

protected speech and the adverse action. Id. at 686. 

To decide whether Braswell’s speech is protected, we must

first determine whether Braswell is a public employee for purposes

of the First Amendment. The government may impose certain

restraints on the speech of its employees, and take action against

employees for speaking on certain matters, that would be

unconstitutional if applied to the general public. City of San

Diego v. Roe, 543 U.S. 77, 80 (2004). This limited exception to

the First Amendment’s general prohibition on interference with

speech exists because “[g]overnment employers, like private

employers, need a significant degree of control over their

employees’ words and actions.” Garcetti v. Ceballos, 126 S. Ct.

1951, 1958 (2006).

Braswell argues that as a partner of the privately owned

Midway Medical Center, he is not a public employee. He received no

remuneration from the Hospital and his only connection to the

Hospital was his “privilege[] to admit patients and to perform

certain medical procedures.” Appellant’s Br. at 19. These

privileges, he asserts, do not make him a public employee. 

The Supreme Court has rejected the agency law definition

of “employee” that Braswell proposes. The government’s legitimate
13

reasons for regulating its employees’ speech apply equally to

independent contractors. See Bd. of County Comm’rs v. Umbehr, 518

U.S. 668, 677-78 (1996). In Umbehr the Supreme Court explained:

“The similarities between government employees and government

contractors with respect to [the First Amendment] is obvious. The

government needs to be free to terminate both employees and

contractors . . . to improve the efficiency, efficacy, and

responsiveness of service to the public.” Id. at 674. Thus, the

Court held that the “existing framework for government employee

cases [should be applied] to independent contractors.” Id. at 677.

Braswell, like all staff doctors, is essentially an

independent contractor for the Hospital. See Smith v. Cleburne

County Hosp., 870 F.2d 1375, 1381 (8th Cir. 1989) (stating that

the relationship between staff doctors and hospitals has

“similarities to that of an employer-employee relationship”); Caine

v. Hardy, 943 F.2d 1406, 1415-16 (5th Cir. 1991) (treating staff

doctor as employee for First Amendment analysis). Hospitals and

staff doctors have reciprocal obligations. In return for the

privilege to use the Hospital’s facilities, staff doctors are

required to be on call for certain periods each month and help with

various administrative functions. Staff doctors consult with other

doctors and assist in performing surgeries, and hospitals may be

held jointly and severally liable for their tortious conduct. See

Smith, 870 F.2d at 1381. Indeed, a patient admitted to the
14

emergency room would not know the difference between staff doctors

and doctors on the hospital payroll. Thus, because Braswell is

similar to an independent contractor, we must treat him as a public

employee in analyzing his First Amendment claim. See Umbehr, 518

U.S. at 677. 

When a public employee speaks “as a citizen upon matters

of public concern,” Connick v. Myers, 461 U.S. 138, 147 (1983), we

must balance “the interests of the [employee] . . . and the

interest of the State, as an employer, in promoting the efficiency

of the public services it performs through its employees.”

Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see also

Garcetti, 126 S. Ct. at 1958 (stating that employees “must face

only those speech restrictions that are necessary for their

employers to operate efficiently and effectively”). After

conducting this balancing, we agree with the district court that

Braswell’s letter was not protected speech. Although Braswell has

an interest in expressing concerns about the manner in which the

state-owned hospital operates, the Hospital has a greater interest

in regulating speech that interferes with its core mission. To

meet the medical needs of Haywood County, the Hospital, like all

hospitals in more sparsely populated areas, must devote extra

effort to recruiting physicians. Accordingly, the Hospital has a

significant interest in preventing staff doctors from interfering

with the Hospital’s recruiting efforts. The Hospital also has an
15

important interest in maintaining a collegial atmosphere. As

stated above, doctors must frequently consult with each other and

assist in performing surgeries. Braswell’s actions negatively

affected his relationship with his colleagues and thus impacted his

ability to provide quality care to patients at the Hospital. See

Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 317 (4th

Cir. 2006) (considering whether employee’s speech “impaired harmony

among coworkers” or “damaged close personal relationships”).

For all of these reasons, we conclude that Braswell’s

letter was not protected speech. Therefore, Braswell cannot

establish a claim of First Amendment retaliation. See Suarez, 202

F.3d at 686.

III.

Braswell argues that the Hospital violated his due

process rights when it summarily suspended his privileges to

perform gastric bypass surgeries in December 2002 and his remaining

surgical privileges in May 2003. He states that the Hospital was

constitutionally required to provide him notice of the allegations,

and an opportunity to defend himself, before suspending his medical

privileges. Because Braswell does not argue that the postdeprivation procedures were insufficient, we must only decide

whether a pre-deprivation hearing was constitutionally required

under the circumstances. 
16

“Due process is flexible and calls for such procedural

protections as the particular situation demands.” Gilbert v.

Homar, 520 U.S. 924, 930 (1997). Although due process generally

requires an opportunity to be heard prior to the deprivation of a

property interest, Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 542 (1985), it is well established that a pre-deprivation

hearing is not required in all circumstances. See North Am. Cold

Storage Co. v. City of Chicago, 211 U.S. 306 (1908) (confiscating

potentially contaminated food without hearing); Gilbert, 520 U.S.

924 (suspending police officer who was arrested on drug charges).

“[W]here a State must act quickly, or where it would be impractical

to provide predeprivation process, postdeprivation process

satisfies the requirements of the Due Process Clause.” Gilbert,

520 U.S. at 930. Thus, the Hospital did not violate Braswell’s

constitutional rights if the summary suspension of his privileges

was necessary to protect patient safety. See Patel v. Midland Mem.

Hosp. & Med. Cen., 298 F.3d 333, 340 (5th Cir. 2002) (holding that

summary suspension of cardiologist’s clinical privileges did not

violate due process because doctor’s “methods posed a danger to

patient safety”); Caine, 943 F.2d at 1412-15 (holding that

suspension of anesthesiologist’s clinical privileges before formal

hearing was held was constitutional).

In the present case, the Hospital had good reason to

conclude that quick action was necessary to protect patient safety.
17

The MEC suspended Braswell’s gastric bypass surgeries after

Braswell’s patient, Patient F, was transferred to another hospital

in critical condition. The Chief of Staff’s (Freeman’s)

investigation of the incident revealed that Patient F suffered

renal failure, shock, and sepsis after the operation; Braswell

refused to transfer the patient to a better equipped facility

despite the patient’s deteriorating condition and requests by other

physicians; and Braswell took the patient back into surgery without

the aid of surgical assistants. In addition to these clinical

errors, Braswell showed poor judgment by cursing at Freeman when

she ordered the patient transferred to another facility.

The second deprivation occurred in May 2003 when the

Hospital revoked all of Braswell’s surgical privileges. Again, the

Hospital had sufficient reason to believe that this action was

necessary to protect the public. A review of Braswell’s gastric

bypass surgeries showed numerous deficiencies in his standard of

care, including several failures to staple properly the patient’s

stomach, two failures to conduct a pregnancy test prior to the

operation, and “innumerable documentation failures.” J.A. 354.

The General Ad Hoc Committee also reported a continued pattern of

poor documentation and serious problems with Braswell’s pre- and

post-operation care, which resulted in one patient being

transferred to another hospital in critical condition. Finally,

the SCRC stated that there was “an extremely disturbing trend of
18

young, otherwise healthy patients going very badly post operatively

with nurses being unable to locate Dr. Braswell.” J.A. 36. The

SCRC added, “We have already seen too many otherwise healthy

individuals that have come through the committee that have had near

life threatening complications when treated by Dr. Braswell and

inappropriate recognition and care.” J.A. 37.

We conclude that the MEC, based on the information before

it, had reasonable grounds for suspending Braswell’s privileges

without first providing him an opportunity to be heard.

Accordingly, there was no due process violation.

IV.

For similar reasons, we reject Braswell’s claim that the

Hospital breached its contract by failing to follow the privilege

suspension procedures set forth in the bylaws. Because the

Hospital’s decision is protected by immunity under the Health Care

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

Braswell cannot succeed on his breach of contract claim. 

The HCQIA provides immunity for “professional review

actions,” see § 11111(a), that are taken: 

(1) in the reasonable belief that the action 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

. . . or after such other procedures as are fair to the
19

physician under the circumstances, and 

(4) in the reasonable belief that action was

warranted by the facts known after such reasonable effort

to obtain facts and after meeting the requirement of

paragraph (3). 

Id. § 11112(a). The HCQIA also creates a presumption that action

taken by a professional review committee meets these criteria. Id.

§ 11112(a)(4). Braswell cannot overcome this presumption. First,

the Hospital believed that it was acting in furtherance of quality

health care. As the Fair Hearing Committee stated, there were

“legitimate and serious concerns” about Braswell’s care, and the

MEC acted in “good faith and with the intention of protecting

patients.” J.A. 48. Second, the Hospital made a reasonable effort

to obtain relevant information. It created committees to review

Braswell’s gastric bypass surgeries and, subsequently, all of his

major surgical procedures. Braswell’s treatment of Patient F was

also reviewed by the Surgical Case Review Committee. Finally, as

we described in part III, the procedures provided to Braswell were

fair under the circumstances, and the Hospital acted with the

reasonable belief that quick action was necessary to protect the

safety of the patients.

V.

For the foregoing reasons, we affirm the district court’s

order granting summary judgment to the defendants.

AFFIRMED