NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

NO. CAAP-18-0000776

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

LILLIAN M. JONES, M.D., Plaintiff-Appellant, 

v.

HAWAI#I MEDICAL BOARD, AHLANI K. QUIOGUE, EO, CONSTANCE I.

CABRAL, EO, Defendants-Appellees,

and

JOHN DOES 1-20, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CIVIL NO. 1CC151001958)

MEMORANDUM OPINION

(By: Leonard, Presiding Judge, Hiraoka and McCullen, JJ.)

Defendant-Appellee Hawai#i Medical Board examines

applicants for a license to practice medicine or surgery; it is

under the administrative control of the director of the Hawai#i

Department of Commerce and Consumer Affairs.1 Self-represented

Plaintiff-Appellant Lillian M. Jones appeals from the Final

Judgment in favor of the Medical Board and two of its officers,

Defendants-Appellees Ahlani K. Quiogue and Constance I. Cabral

(the Officers), entered by the Circuit Court of the First Circuit

on September 11, 2018.2 For the reasons explained below, we

affirm the Final Judgment.

1 See Hawaii Revised Statutes (HRS) §§ 453-5(a); 453-5.1; 436B-7(2);

and 26-9(c).

2 The Honorable James H. Ashford presided.

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000776

07-NOV-2022

07:56 AM

Dkt. 56 MO
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PROCEDURAL HISTORY

Jones filed the action below on October 8, 2015. She

alleged that the Medical Board provided false information about

her competence as a physician to the National Practitioner Data

Bank.3 She filed an amended complaint on April 8, 2016. Her

amended complaint alleged counts for: (1) violation of the

federal Health Care Quality Improvement Act; (2) libel;

(3) defamation; and (4) tortious interference with prospective

business advantage.

The Medical Board filed a motion for judgment on the

pleadings or, in the alternative, for summary judgment. The

motion was heard on March 8, 2017.4

 The circuit court granted

the motion.5

The Officers filed a motion for summary judgment. The

motion was heard on December 20, 2017.6 The circuit court

granted the motion.

 The Final Judgment was entered on September 11, 2018.

This appeal followed. Jones contends that the circuit court

erred by granting the Medical Board's motion for judgment on the

pleadings and the Officers' motion for summary judgment.7

3 The National Practitioner Data Bank (NPDB) is a web-based

repository of reports containing information on medical malpractice payments

and certain adverse actions related to health care practitioners, providers,

and suppliers. Established by Congress in 1986, it is a workforce tool that

prevents practitioners from moving state to state without disclosure or

discovery of previous damaging performance. See About Us, NPDB National

Practitioner Data Bank, https://www.npdb.hrsa.gov/topNavigation/aboutUs.jsp

(last visited Nov. 2, 2022).

4 The record on appeal does not contain a transcript of the hearing.

5 The Honorable Rhonda A. Nishimura presided.

6 The Honorable James H. Ashford presided.

7 The opening brief does not comply with Rule 28(b) of the Hawai#i

Rules of Appellate Procedure. Because Jones is self-represented, we interpret

her brief liberally and address the arguments we are able to discern. See

Erum v. Llego, 147 Hawai#i 368, 380-81, 465 P.3d 815, 827-28 (2020)

(instructing that self-represented litigants should not automatically be

foreclosed from appellate review because they fail to comply with court

rules).

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STANDARDS OF REVIEW

An order granting a Hawai#i Rules of Civil Procedure

(HRCP) Rule 12(c) motion for judgment on the pleadings is

reviewed de novo. In re Off. of Info. Pracs. Op. Letter No.

F16-01, 147 Hawai#i 286, 294, 465 P.3d 733, 741 (2020). 

In a motion for judgment on the pleadings under HRCP

Rule 12(c), the movant must clearly establish that no

material issue of fact remains to be resolved and that they

are entitled to judgment as a matter of law. In considering

a motion for judgment on the pleadings, the trial court is

required to view the facts presented in the pleadings and

the inferences to be drawn therefrom in the light most

favorable to the nonmoving party.

Our task on appeal is to determine whether the circuit

court's order supports its conclusion that the movant is

entitled to judgment as a matter of law and, by implication,

that it appears beyond a doubt that the nonmoving party can

prove no set of facts in support of its claim that would

entitle it to relief under any alternative theory.

Id. (cleaned up).

An order granting summary judgment is also reviewed de

novo. Nozawa v. Operating Engineers Local Union No. 3, 142

Hawai#i 331, 338, 418 P.3d 1187, 1194 (2018). Summary judgment

is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law. Id. at 342, 418 P.3d at 1198. A fact is

material if proof of that fact would have the effect of

establishing or refuting one of the essential elements of a cause

of action or defense asserted by the parties. Id.

DISCUSSION

I. The Medical Board's Motion

The Medical Board made three legal arguments: (1) there

is no private cause of action for alleged violation of the Health

Care Quality Improvement Act; (2) Jones's tort claims are barred

by sovereign immunity; and (3) Jones's libel and defamations

claims are precluded by a judgment in a previous lawsuit.

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A. The Health Care Quality Improvement Act did

not create a private cause of action.

The federal Health Care Quality Improvement Act:

was enacted in 1986 to improve the quality of medical care

by restricting the ability of physicians who have been found

to be incompetent from repeating this malpractice by moving

from state to state without discovery of such finding. 

Toward this end, the Act establishes a national reporting

system "to follow bad doctors from place to place," and

provides immunity from damages for persons participating in

professional review activities. Under the national

reporting system, insurance companies are required to report

medical malpractice payments to the Secretary of Health and

Human Services; boards of medical examiners are required to

report sanctions imposed against physicians; and health care

entities are required to report adverse professional review

information. The Act also imposes a duty on hospitals to

obtain information reported about any physician who applies

for hospital privileges or employment, and to update such

information every two years after hospital privileges are

granted.

Imperial v. Suburban Hosp. Ass'n, 37 F.3d 1026, 1028 (4th Cir.

1994) (citations omitted). The Health Care Quality Improvement

Act did not create a private right of action for persons who are

the subjects of required reports. See, e.g., Held v. Decatur

Mem'l Hosp., 16 F. Supp. 2d 975, 977 (C.D. Ill. 1998) (citing Bok

v. Mut. Assurance, Inc., 119 F.3d 927, 929, reh. denied, 132 F.3d

1462 (11th Cir. 1997), cert. denied, 523 U.S. 1118, 118 S.Ct.

1796, 140 L. Ed. 2d 937 (1998), and other cases). Jones cites no

case holding to the contrary, and we have found none. The

circuit court correctly ruled, as a matter of law, that "there is

no private cause of action available to [Jones] under" the Health

Care Quality Improvement Act.

On appeal, Jones argues that a private cause of action

should be implied because:

Under [Health Care Quality Improvement Act] 42 U.S.C.

§[ ]11111(a) when a professional review body meets the four

statutory requirements prescribed in 42 U.S.C.A.

§[ ]11112(a) (West 2005), it is immune from damages.

Jones's argument lacks merit for three reasons.

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The Hawai#i Supreme court has stated:

In determining whether a private remedy is implicit in a

statute not expressly providing one, several factors are

relevant. First, is the plaintiff one of the class for

whose especial benefit the statute was enacted; that is,

does the statute create a right in favor of the plaintiff?

Flores v. Logan, 151 Hawai#i 357, 368, 513 P.3d 423, 434 (2022)

(cleaned up). Doctors who are the subjects of reports to the

National Practitioner Data Bank are not within the class of

persons the Health Care Quality Improvement Act was enacted to

benefit. See Imperial, 37 F.3d at 1028 (noting that "the Act

establishes a national reporting system 'to follow bad doctors

from place to place[.]'").

Second, 42 U.S.C. §§ 11111 and 11112 provide qualified

immunity to professional review bodies "[t]o assure that

hospitals and doctors cooperate with the system and engage in

meaningful professional review[.]" Imperial, 37 F.3d at 1028. 

42 U.S.C. § 11101 (1986) provides that persons participating in

professional review activities that meet the standards imposed by

42 U.S.C. § 11112 "shall not be liable in damages under any law

of the United States or of any State (or political subdivision

thereof)" with respect to the person's participation in such

activities. (Emphasis added.) The Health Care Quality

Improvement Act provides mandated reporters with qualified

immunity from liability under other federal or state laws; it

does not create a new private cause of action.

Third, 42 U.S.C. § 11101 does not apply to the Medical

Board. It applies only to a "professional review body" and its

members, staff, persons under a contract or other formal

agreement with it, and persons who participate with or assist it. 

The term "professional review body" means 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. § 11151(11) (1986).

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The term "health care entity" means, in relevant part:

(i) a hospital that is licensed to provide health care

services by the State in which it is located,

(ii) an entity (including a health maintenance organization

or group medical practice) that provides health care

services and that follows a formal peer review process for

the purpose of furthering quality health care (as determined

under regulations of the Secretary), and

(iii) . . . a professional society (or committee thereof) of

physicians or other licensed health care practitioners that

follows a formal peer review process for the purpose of

furthering quality health care (as determined under

regulations of the Secretary).

42 U.S.C. § 11151(4)(A) (1986). The Medical Board is not a

"professional review body" as defined by the Health Care Quality

Improvement Act.

B. Jones's tort claims are barred by sovereign

immunity.

By the State Tort Liability Act, Hawaii Revised

Statutes (HRS) Chapter 662, the State generally waived its

sovereign immunity for the torts of its employees. HRS § 662-2

(2016). However, the waiver does not apply to:

Any claim arising out of assault, battery, false

imprisonment, false arrest, malicious prosecution, abuse of

process, libel, slander, misrepresentation, deceit, or

interference with contract rights[.]

HRS § 662-15(4) (2016) (emphasis added). The exception also

applies to claims for defamation. Mitsuba Publ'g Co. v. State,

1 Haw. App. 517, 517, 620 P.2d 771, 772 (1980). 

Jones's opening brief presents no discernible argument

that the circuit court erred by applying HRS § 662-15(4). The

point is waived. Hawai#i Rules of Appellate Procedure (HRAP)

Rule 28(b)(7); Hawaii Ventures, LLC v. Otaka, Inc., 114 Hawai#i

438, 478, 164 P.3d 696, 736 (2007) ("an appellate court is not

obliged to address matters for which the appellant has failed to

present discernible arguments."). Even if an argument had been

presented, the statutory language is clear. The circuit court

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did not err by ruling as a matter of law that Jones's claims for

libel, defamation, and intentional interference with prospective

business advantage were "barred by sovereign immunity, which is

retained by [the Medical Board] under [HRS] § 662-15(4)."

C. We need not decide whether issue preclusion

barred Jones's claims for libel and

defamation.

Jones contends that the circuit court erred by ruling

that her libel and defamations claims were precluded by a

judgment in a previous lawsuit.8 The circuit court's order

stated:

Although the Court does not rely on this basis in issuing

its ruling, [Jones's] libel, defamation, and intentional

interference with prospective business relations claims are

also barred by collateral estoppel arising out of the

operation of the Final Judgment entered in favor of

Defendant Hawai#i Medical Board and against [Jones] in Civil

No. 10-1-2238-10 KTN.

(Emphasis added.) As explained above, Jones's tort claims

against the Medical Board were barred by sovereign immunity. We

need not decide whether the doctrines of claim or issue

preclusion also applied to those claims.

II. The Officers' Motion

After the circuit court entered the order granting the

Medical Board's motion for judgment on the pleadings, the

Officers moved for summary judgment based on Medeiros v. Kondo,

55 Haw. 499, 522 P.2d 1269 (1974). In Medeiros the supreme court

declined to adopt a rule that nonjudicial government officers9

were absolutely immune to suits for damages arising out of the

performance of their public function. Id. at 500-01, 522 P.2d at

1270. Instead, the court adopted a rule of qualified immunity,

8 Jones v. Hawaii Board of Medical Examiners, JIMS no. 1CC101002238.

9 Hawai#i recognizes absolute immunity for judicial officers, State

v. Taylor, 49 Haw. 624, 631, 425 P.2d 1014, 1019 (1967), and for legislators

exercising their legislative functions, Greer v. Baker, 137 Hawai#i 249, 255,

369 P.3d 832, 838 (2016) (citing Haw. Const. art. III, § 7).

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placing upon the "plaintiff the burden of adducing clear and

convincing proof that defendant was motivated by malice and not

by an otherwise proper purpose." Id. at 504, 522 P.2d at 1272.

A. Constance I. Cabral.

Cabral submitted a declaration stating: "At no time

relevant to this case have I held any malice toward the Plaintiff

Lillian M. Jones." Jones submitted no evidence to controvert

Cabral's testimony. Jones offered a copy of the Medical Board's

report to the National Practitioner Data Bank, but Cabral's name

does not appear on the report and there is no evidence in the

record about what role, if any, Cabral had in preparing or

submitting the report. The circuit court did not err in granting

summary judgment to Cabral.

B. Ahlani K. Quiogue.

Quiogue submitted a declaration stating: "At no time

relevant to this case have I held any malice toward the Plaintiff

Lillian M. Jones." The burden then shifted to Jones to

"demonstrate specific facts, as opposed to general allegations,

that present a genuine issue worthy of trial." Nozawa, 142

Hawai#i at 342, 418 P.3d at 1198 (citations omitted). 

The Medical Board's report indicates that Quiogue was

the person who transmitted it to the National Practitioner Data

Bank. The report stated:

ON SEPTEMBER 8, 2006, THE HAWAII MEDICAL BOARD (FORMERLY

KNOWN AS THE BOARD OF MEDICAL EXAMINERS) ("BOARD") DENIED

DR. JONES'S APPLICATION BASED ON HER CONDUCT AT THE

PEDIATRIC CONTINUITY CARE CLINIC ON APRIL 1, 2004, THE

ENSUING ACTION(S) TAKEN AGAINST HER BY THE HAWAII RESIDENCY

PROGRAMS, INC., TRIPLE BOARD RESIDENCY TRAINING PROGRAM, AND

THE VIOLATIONS OF THE CONDITIONS OR LIMITATIONS UPON WHICH A

LIMITED OR TEMPORARY LICENSE IS ISSUED. ON JULY 31, 2007

DR. JONES SUBMITTED A REQUEST FOR RECONSIDERATION TO THE

BOARD. ON AUGUST 10, 2007 THE BOARD BOARD [sic] VOTED TO

AFFIRM ITS DECISION TO DENY HER APPLICATION. A HEARING WAS

CONVENED ON JANUARY 23, 2008. THE HEARINGS OFFICER

CONCLUDED THAT DR. JONES' ACTIONS IN THE APRIL 1, 2004

INCIDENT AMOUNTED TO PROFESSIONAL MISCONDUCT, HAZARDOUS

NEGLIGENCE, INCOMPETENCE, AND CONSTITUTED A SUFFICIENT BASIS

FOR THE DENIALS OF HER LICENSE APPLICATION. THE HEARINGS

OFFICER RECOMMENDED THAT THE BOARD AFFIRM ITS DENIAL OF

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DR. JONES' APPLICATION FOR A MEDICAL LICENSE. PURSUANT TO

THE FINAL ORDER APPROVED BY THE BOARD ON AUGUST 8, 2008, THE

BOARD ADOPTED THE HEARINGS OFFICER'S RECOMMENDED DECISION AS

ITS FINAL ORDER AND AFFIRMED ITS DENIAL OF DR. JONES'

APPLICATION FOR A MEDICAL LICENSE.

As noted above, a plaintiff maintaining a tort claim

against a public official who is entitled to qualified immunity

has the burden of proving, by clear and convincing evidence, that

the public official "was motivated by malice and not by an

otherwise proper purpose." Medeiros, 55 Haw. at 504, 522 P.2d at

1272. Here, regardless of the propriety of the Medical Board's

decision, Quiogue's submission of that decision to the National

Practitioner Data Bank does not constitute evidence that Quiogue

was motivated by malice. Nor is there any other evidence in the

record that Quiogue was motivated by malice. Thus, the circuit

court did not err in granting summary judgment to Quiogue.

CONCLUSION

Based upon the foregoing, the "Final Judgment in Favor

of Defendants Hawai#i Medical Board, Ahlani K. Quiogue, EO, and

Constance I. Cabral, EO, and Against Plaintiff Lillian M. Jones" 

entered by the circuit court on September 11, 2018, is affirmed.

DATED: Honolulu, Hawai#i, November 7, 2022.

On the briefs:

/s/ Katherine G. Leonard

Lillian M. Jones, Presiding Judge

Self-represented PlaintiffAppellant. /s/ Keith K. Hiraoka

Associate Judge

Bryan C. Yee,

Shari J. Wong, /s/ Sonja M.P. McCullen

Mana Moriarty, Associate Judge

Deputy Attorneys General,

State of Hawai#i,

for Defendants-Appellees.

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