NOT FOR PUBLICATION WITHOUT THE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 HOSPITAL 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 argued 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, 2014
2 A-5112-12T2

This litigation arises out of a hospital'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 federal 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 privileges. See 42 U.S.C.A. §§ 11111 to 

11112 and N.J.S.A. 2A:84A-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 taking of depositions, or the 

pursuit of other additional discovery, before the immunity 

issues were adjudicated.
3 A-5112-12T2

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 with the 

trial court that the hospital and the participants in the

hospital's internal review processes are statutorily immune in 

this case from monetary liability. We further agree with the 

court that plaintiff has not identified sufficient grounds to 

establish 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 objectives.

Additionally, we sustain the trial court's ruling that 

plaintiff's conclusory allegations of wrongdoing by the hospital 

and the participants in the internal review process are

insufficient to warrant depositions or the taking of other 

additional discovery. 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 reasonable 
4 A-5112-12T2

indicia that a factual 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 findings3 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 record. 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. 

Defense 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 hospital'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)
5 A-5112-12T2

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

Plaintiff James B. Hurwitz, M.D., is a board-certified 

general surgeon licensed in the State of New Jersey. Plaintiff 

has been granted clinical privileges at several hospitals, 

including Overlook 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 

result, in June 2010, the hospital's Chief of Surgery referred

cases of two of plaintiff's patients 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. 1149, 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 

hearing officer's report as well as other communications 

exchanged between the chairman of the credentials committee 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").
6 A-5112-12T2

expert, a faculty member at New York University School of 

Medicine. The outside reviewer is not affiliated with Overlook. 

Plaintiff was not concurrently informed that those cases had

been sent out for review.

The outside reviewer issued a report in August 2010,

opining that, with respect to one of the two patients in 

question, plaintiff had not been "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 Overlook Hospital." 

Soon thereafter, on September 29, 2010, the hospital's 

Medical Executive Committee ("MEC") convened to consider 

authorizing an internal investigation into plaintiff's clinical 

competence. On that same day, the twenty-six MEC members in 

attendance unanimously voted in favor of commencing such a 

formal investigation. 

The next day, September 30, 2010, the president of the 

hospital's medical staff issued a letter to plaintiff, notifying 

him that the MEC had begun the investigation. As a consequence 
7 A-5112-12T2

of the pending investigation, the president temporarily 

suspended plaintiff's clinical privileges. This temporary 

suspension was imposed pursuant to the hospital's bylaws.

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 hospital from suspending his privileges. 

Plaintiff then filed an amended complaint in the Chancery 

action, adding as a co-defendant the hospital's medical staff 

("the Medical Staff"). The hospital and the Medical Staff filed 

opposition to the injunctive application.

After hearing initial oral argument, the Chancery Division 

judge presiding over the matter, Hon. John F. Malone, granted 

plaintiff's request for certain expedited discovery and 

scheduled further argument on the injunction. Among other 

things, Judge Malone directed defendants to provide plaintiff 

with a copy of the hospital's bylaws, written notice of the 

reasons for any adverse 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 restoring 
8 A-5112-12T2

plaintiff's privileges. Certain paper discovery, including 

responses to interrogatories, apparently were thereafter

provided in the Chancery action, but no depositions were taken.

The Investigating Committee's Review

Meanwhile, as a follow-up to the 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 and recommendations to the MEC. Five physicians were 

named to the Investigating Committee. The Investigating 

Committee met several times between October 2010 and December 

2010. Plaintiff was invited to provide written submissions, and 

he did so in a letter from his counsel and also in his own 

separate letter. Plaintiff declined, however, three 

opportunities to 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 period. 

Based on its review of those six cases, the Investigating 

Committee reached certain unfavorable conclusions. In 

particular, its report found that plaintiff's care was "notable 
9 A-5112-12T2

for poor documentation of care plans and delays in managing 

complications of surgery, which resulted in adverse outcomes." 

Given its findings, the Investigating Committee presented the 

following recommendation:

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 dismiss plaintiff's 

Chancery action, in lieu of an answer, for failure to state a 

claim upon which relief can be granted, pursuant to Rule 4:6-

2(e). That motion was granted on 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 had 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.
10 A-5112-12T2

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 

professional courses at your expense 

approved by the MEC addressing Medical 

Ethics and Professionalism, 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 oncall schedule, you will 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 order 

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.
11 A-5112-12T2

Plaintiff's Law Division Complaint

Although it is not entirely clear from the record, 

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 

reassigned to the complex commercial track, pursuant to Rule

4:5A-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 noted that, under its applicable bylaws, plaintiff 

was entitled to a formal internal hearing to contest the MEC's 

investigative findings and recommendations. In fact, plaintiff 

had already requested such an internal hearing under the bylaws, 

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, 
12 A-5112-12T2

in light of the costs and burdens of challenging the hospital's 

actions in two separate proceedings at the same time.

Consequently, plaintiff and the hospital entered into a 

Consent Order on January 19, 2012, dismissing plaintiff's Law 

Division action, expressly "without prejudice," pending a 

resolution or completion of the hospital's internal hearing and

appeals process. Pursuant to the terms of the Consent Order, 

plaintiff was permitted to reinstate his amended complaint in 

the Law Division "without regard to any statute of limitations 

issues." Aside from this, the Consent Order specified that the

parties "reserve[d] all rights concerning the claims and 

defenses."

The Hospital's Internal Hearings

The hospital's internal hearings began in June 2011. After

a substantial delay of eight months due to scheduling conflicts 

of plaintiff's counsel, the hearings were resumed and completed 

February 2012. 

The hearing panel consisted of three physicians and a 

presiding member from an outside organization. Both plaintiff 

and the MEC were represented by counsel. We are advised that 

fact and expert witnesses for both parties presented sworn 
13 A-5112-12T2

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 subject of 

the MEC investigation. The parties submitted post-hearing 

briefs for the panel's consideration. A certified shorthand 

reporter prepared a verbatim transcript of the hearings.

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 postoperative management of surgical complications and/or a failure 

to document thought processes and plans of care." In addition, 

the panel faulted plaintiff for, as it found, entering a note in 

 

6 In particular, we were advised at oral argument that plaintiff 

himself 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 essential to our review of 

the legal issues being presented on this appeal.
14 A-5112-12T2

the chart of one of those four patients, which "falsely 

indicated that [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 adopted. The panel also indicated

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 greater 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 hearing 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 

whether such consultation had taken place.
15 A-5112-12T2

revoked his clinical privileges, effective immediately. It 

conveyed that decision in a letter to plaintiff dated July 26, 

2012. Plaintiff did not pursue any further appeal within the 

hospital of the Board of Trustees' decision, although the bylaws 

entitled him to appeal the decision to a "Review Panel composed 

of not fewer than three persons."

Plaintiff's Motion to Reinstate His Law 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 Complaint. His pleadings, as originally framed 

and then revised in the proposed Second Amended Complaint,

asserted several legal theories 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 Defendants 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 defendants' 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."
16 A-5112-12T2

After hearing oral argument, the Presiding Judge of the Law 

Division, Hon. Kenneth J. Grispin, entered an order on March 12, 

2013, accompanied by a written Statement of Reasons, denying 

plaintiff's reinstatement motion, without prejudice. 

Specifically, Judge Grispin found in his Statement of Reasons

that plaintiff's proposed Second Amended Complaint:

[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 [42] U.S.C.A. § 11112(a). 

Moreover, [plaintiff's] proposed amended 

complaint fails to state a cause of action 

as to the Board 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 to his Law Division 

complaint. In support of his motion, plaintiff submitted a 

proposed Third Amended Complaint naming as defendants "AHS 

Hospital Corp.10 Board of Trustees." The proposed pleading 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 evidently is the legal name of 

Overlook Hospital.
17 A-5112-12T2

Statement of Reasons dated May 27, 2013, Judge Grispin concluded 

that plaintiff'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 arbitrary 

or capricious." The judge granted defendants' cross-motion to 

dismiss the Law Division action, conclusively, specifying that 

the dismissal was "with prejudice."

The Contentions on Appeal

On appeal, plaintiff contends that the trial court acted 

prematurely in enforcing defendants' claimed immunities. He 

argues that the court should have afforded him an opportunity to 

conduct depositions, which he asserts might have uncovered

admissible evidence to overcome the immunities and which

potentially could demonstrate that defendants acted maliciously,

arbitrarily, or unreasonably. Although his counsel acknowledged 

at the appellate oral argument that plaintiff had not handled 

the patient cases in question "perfectly," and that some degree 

of "remediation" 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 the 
18 A-5112-12T2

conditional suspension recommended by the MEC and the hearing 

panel, circumstantially shows that the Board of Trustees engaged

here in arbitrary and unreasonable decision-making. Plaintiff 

also contends that the hospital and its agents waived in the 

Consent Order their ability to oppose the reinstatement of his 

lawsuit. 

Plaintiff therefore urges that the trial court's dismissal

order be vacated. In particular, he seeks to have his lawsuit 

reinstated for the completion of discovery and for a decision on 

the merits with a fuller record.

In response, defendants 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 designed to protect

hospitals and the participants in internal peer reviews from 

having monetary liability to doctors who are sanctioned as a 

result of such internal processes. Defendants further submit

that they did not waive in the Consent Order their right to 

oppose a reinstatement of plaintiff's lawsuit on legal grounds, 

here being the substantive immunities they are afforded under

the federal and state statutes. 

Defendants further assert that the trial court sensibly 

rejected plaintiff's request to conduct depositions and to 
19 A-5112-12T2

pursue other discovery. They maintain there is no indication in 

the record, apart from plaintiff's conclusory assertions and 

suspicions, that the hospital or its representatives engaged 

here in the sort of ill-founded or nefarious 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 federal 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 provides, 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, and (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:
20 A-5112-12T2

(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 are afforded to the physician 

involved or after such other procedures as 

are fair to the physician under the 

circumstances, and

(4) in the reasonable belief that the 

action was warranted by the facts known 

after such reasonable effort to obtain facts 

and after meeting the requirement of 

paragraph (3).

[42 U.S.C.A. § 11112(a).]

A "professional 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 the 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 review 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 professional review 

activity, which is based on the competence 

or professional conduct of an individual 

physician (which conduct affects or could 

affect adversely the health or welfare of a 
21 A-5112-12T2

patient or patients), 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 includes professional

review activities relating to a professional 

review action.

[42 U.S.C.A. § 11151(9) (emphasis added).]

Further, the HCQIA defines "professional review activity" 

to cover any activity of a health care entity with respect 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 

conditions 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 undertaken 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 rebutted by a preponderance of the evidence." 

42 U.S.C.A. § 11112(a). The only specified qualification to 

this broad immunity coverage, then, is if a plaintiff 

demonstrates, by a preponderance of the evidence, that the 
22 A-5112-12T2

defendant took action without a reasonable 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 after 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 that 

took part in the HCQIA's passage explained:

The [immunity] provisions would allow a 

court to make a determination that the 

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 the case 

remain to be resolved. For example, a court 

might determine at an early stage of 

litigation that the defendant has met the 

[section 11112(a)] standards, even though 

the plaintiff might be able to demonstrate 

that the professional review action was 

otherwise improper. At that point, it would 

be in order for the court 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)).]
23 A-5112-12T2

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-examine the anonymous physicians who prepared 

the peer-review forms," and because the peer review panel was 

not impartial, given that one of the reviewers was an "accuser, 

investigator, prosecutor, and one of [the plaintiff's] judges 

[at the hearing]"); see also 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 decisions "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 expressed
24 A-5112-12T2

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 decisionmaking"), cert. denied, 133 S. Ct. 1809, 185 L. Ed. 2d 812 

(2013).

Similar public policies are reflected in our State'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:84A-22.10 provides that:

Any person who serves as a member 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 limiting the scope of 

hospital privileges . . .

. . . .

shall not be liable in damages to any person 

for any action taken or recommendation made 

by him within the scope of his function with 

the committee, subcommittee or society in 
25 A-5112-12T2

the performance of said peer-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 recommendation was warranted

upon the basis of facts disclosed.

[(Emphasis added).]

Although N.J.S.A. 2A:84A-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 rules 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 

(App. 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 lawsuit 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.
26 A-5112-12T2

III.

Having canvassed these key aspects of the federal and state 

immunity statutes, we 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 their federal and state immunities, to oppose 

plaintiff's claims. The terms of the Consent Order cannot be 

reasonably interpreted to bar defendants from interposing 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 consent order 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 relief that he now seeks is monetary 

damages.
27 A-5112-12T2

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 

Club & 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) (citations omitted)). The plain language of the 

Consent Order 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 their statutory 

immunities, or their right 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 trial 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. Super. 351 (App. Div. 1991); see also Pressler & 

Verniero, Current N.J. Court Rules, cmt. 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, 
28 A-5112-12T2

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 Consent 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 acceded 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 defendants' 

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

documentary 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 to 
29 A-5112-12T2

in the complaint. 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 conceived 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 customary 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 light 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 Rule 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 disposed of as provided by R. 4:46, and 

all parties shall be given reasonable opportunity to present all 

material pertinent to such a motion.").
30 A-5112-12T2

court's entry of final judgment in defendants' favor was sound

and not premature.15

C.

We turn to the substance 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 has 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 unquestionably comprises a "professional review 

activity" under 42 U.S.C.A. § 11151(10). The participants in 

the review, including the Medical Staff, the Investigating 

Committee, the MEC, the hearing panel, and the Board of Trustees 

are all "professional review bodies" within 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 than the 

summary judgment standards, see, e.g., Printing Mart-Morristown 

v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989), we remain 

persuaded that the immunity statutes control this case and 

mandate dismissal of the lawsuit. "A pleading should be 

dismissed if it states no basis for relief and discovery would 

not provide one." Rezem Family Assocs., L.P. v. Borough of 

Millstone, 423 N.J. Super. 103, 113 (App. Div.), certif. denied,

208 N.J. 366 (2011).
31 A-5112-12T2

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 internal 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 obtain 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 participants 
32 A-5112-12T2

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, nor 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 another 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." Zoneraich v. Overlook Hosp., 212 N.J. Super.

83, 90 (App. Div.), certif. denied, 107 N.J. 32 (1986). 

"Hospital officials are 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.

Ctr., 103 N.J. 79 (1986), and Belmar v. Cipolla, 96 N.J. 199, 
33 A-5112-12T2

208 (1984)). Although Zoneraich 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 fundamentally fair procedures in a nonprofit 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 physician 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 recognition of 

competing rights to privilege and confidentiality." Ibid.

(emphasis added) (citing Garrow v. Elizabeth Gen. Hosp. &

Dispensary, 79 N.J. 549, 566-68 (1979)).

As our Supreme Court noted in Garrow and we reiterated in 

Zoneraich, "[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.'" Zoneraich, supra, 212 N.J. 

Super. at 91 (emphasis added) (quoting Garrow, supra, 79 N.J. at 
34 A-5112-12T2

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 credible evidence.'" Ibid. (quoting 

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. (quoting Garrow, supra,

79 N.J. at 565).

The HCQIA likewise affords deference to hospitals and their 

representatives when they make these difficult decisions 

concerning a physician's clinical privileges. That deference is 

manifested by the federal law's express presumption that the 

immunity from damages applies unless the physician challenging 

the hospital's adverse decision proves, by a preponderance of 

the evidence, that the decision-makers took action without a 

reasonable belief that it was in furtherance of quality health 

care, failed to provide adequate notice and hearing procedures, 

or took action without a reasonable belief based on the facts 

known after 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 objective standards. In fact, as 

the House Committee report explains, the drafters of the federal 
35 A-5112-12T2

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" test "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 Committee 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 under the statute as an 

objective test.16

 

16 See, e.g., Cohlmia v. St. John Med. Ctr., 693 F.3d 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 

HCQIA'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)
36 A-5112-12T2

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 that the trial court in Zoneraich 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 those internal hearings.

N.J.S.A. 2A:84A-22.10 extends a similar form of immunity

protection for hospitals, peer reviewers, 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 furtherance of quality healthcare."); 

Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461, 468 (6th 

Cir. 2003) ("[The HCQIA] is an objective standard, rather than 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]ister 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). 
37 A-5112-12T2

The provision broadly covers "any person" involved in such 

review of a physician "for any action taken or recommendation 

made by [that person] within the scope of [that person's]

function" in that role. N.J.S.A. 2A:84A-22.10(e). This statelaw immunity applies, so long as "such action or recommendation 

was taken or made without malice and in the reasonable belief 

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 and without justification or excuse").

 
38 A-5112-12T2

regarding the physician's quality of care.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 

procedurally 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 hearing panel of the specific patient cases 

that would be the 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. The findings of the 

Investigating Committee and, thereafter, of the hearing panel, 

were clearly detailed in writing. 

By all indications, these procedures comported with the 

HCQIA, 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 stripped of his 

privileges for no articulated reasons. To 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). 
39 A-5112-12T2

Board's final decision was the culmination 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 establish unreasonableness 

or other improper conduct, plaintiff points to three aspects of 

the chronology that he contends are indicia that defendants' 

statutory immunities 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 quality health care; (2) they failed to provide 

him with adequate notice of the first investigation and of the 

initial referral to the outside reviewer; and (3) they lacked 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 

recommended by both the MEC and the hearing panel. We concur 

with the trial court that there 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 that 

plaintiff had provided to several of his patients. Indeed, 
40 A-5112-12T2

those concerns were borne out by the adverse findings of the 

outside reviewer, the Investigating Committee, and the hearing 

panel. The 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" will be satisfied under the HCQIA if the reviewing body, 

based on the information before it, "would reasonably have 

concluded 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). As 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, under 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 result 
41 A-5112-12T2

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." Brader v. Allegheny 

Gen. Hosp., 167 F.3d 832, 840 (3d Cir. 1999) ("Brader II").

At the time its nearly year-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 passively. 

Neither is acceptable." Moreover, plaintiff himself 

acknowledged in his Second Amended Complaint that two of his 

patients "had recognized complications associated with their 

surgeries." The fact that those patients eventually recovered 

is not dispositive. 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 

disentitled to immunity because they failed to provide him with 

advance notice of the first 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 "discrete 
42 A-5112-12T2

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 

lacked a reasonable belief that the sanctions against him were

actually warranted, is similarly flawed. He contends that the 

Board of Trustees "consistently and inexplicably disregarded" 

the independent recommendations made regarding his performance. 

In his view, the Board of Trustees did not possess a reasonable 

belief that its decision to revoke his privileges 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 review panel does not indicate 

that the initial recommendation was 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 Cir. 1992) (granting immunity in a 

situation where a hospital's judicial review committee 

overturned a medical executive committee's recommendation of an

adverse professional review action)). The converse is also 

true.
43 A-5112-12T2

The mere fact that, as plaintiff's counsel's phrased it at 

oral argument before us, the hospital decision-makers "ratcheted 

up" the sanctions as the matter progressed does not signify that 

the 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 Trustees 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 discrete 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 oneyear suspension to three years); see also In re Rosen, 88 N.J.

1, 3 (1981) (finding the attorney's subornation of perjury 

"inexcusable and reprehensible" and elevating the Disciplinary 

Review Board's proposed one-year suspension to three years).
44 A-5112-12T2

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 opportunities to resolve this matter with the 

lesser sanctions 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:84A-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 clinical privileges. We are mindful, however, 

of the House Committee's guidance that the immunity question 

under the HCQIA may be resolved at "an early stage of 
45 A-5112-12T2

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 cases 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 limited discovery of the peer review process. See, 

e.g., Wahi 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. 1140, 

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 peer review process, where 

the reasonableness of that process, including claims of 

antitrust violations by the defendants, had been plausibly

challenged by plaintiff).
46 A-5112-12T2

Conversely, in some instances, the HCQIA immunity issues 

were resolved 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 physician 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 to dismiss under the 

HCQIA on the face of the pleadings, finding, among other things, 

that the plaintiff physician had not asserted sufficient grounds 

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 summary 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 on 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 becomes 
47 A-5112-12T2

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 immunity under N.J.S.A. 2A:84A-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 declaring 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 permit the HCQIA

immunity 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. Although we are mindful that these statutes 
48 A-5112-12T2

provide hospital defendants with immunity from damages rather 

than immunity from suit, we also appreciate that protracted 

discovery easily can be costly and burdensome for the persons 

and entities involved. An appropriate 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 judges 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 striking 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 that such discretion was abused. 

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 
49 A-5112-12T2

(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 deference.

Here, plaintiff already received at least some amount of

paper 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 conjectural supposition that such adversarial questioning of 

the hospital's representatives might reveal a proverbial 

"smoking gun" reflecting 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 assert absolute or qualified privileges 

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. Bentolila, 219 N.J. 449, 451 (2014)

(involving privileges from disclosure under the New Jersey

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)
50 A-5112-12T2

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 

public policies recognized by the Legislature in encouraging the 

free flow of evaluative communications within a hospital made in 

an 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 unfairly 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 Investigating 

 

(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 health care facility "exclusively" during 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.
51 A-5112-12T2

Committee, the hearing panel, and the Board 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., Brader v. Allegheny Gen. Hosp. 64 F.3d 869, 876 (3d 

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 

summary judgment or after trial"); 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 justification for plenary

discovery may be heightened.

Plaintiff's complaint, which he has amended multiple times, 

makes several conclusory allegations that defendants acted 

"maliciously" and "arbitrarily" in taking away his clinical 

privileges. As Judge Grispin correctly recognized, the mere 

inclusion of such normative adverbs within a physician's 

complaint does not justify a free-wheeling discovery mission 
52 A-5112-12T2

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 discovery and to disallow depositions of the 

hospital's representatives.

Affirmed.