IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-60481

DR. A. P. SORIANO,

Plaintiff-Appellant

v.

NESHOBA COUNTY GENERAL HOSPITAL BOARD OF TRUSTEES, In

Their Official Capacities, Namely Roger Owen, Marvin Page, Jo Helen Daly,

Kenneth Coleman, & Oliver Jolly; NESHOBA COUNTY GENERAL

HOSPITAL MEDICAL STAFF EXECUTIVE COMMITTEE, In Their Official

Capacities, Namely Patrick Eakes, M.D., Jon Boyles, M.D., Andrew P. Dabbs,

M.D., & Vankat Yedlapalli, M.D.; NESHOBA COUNTY GENERAL

HOSPITAL APPEALS COMMITTEE OF THE MEDICAL STAFF, In Their

Official Capacities, Namely Walt Willis, M.D., Chairman Michael J. Nanny,

M.D., & Phillip Lucas, M.D.; KAREN FIDUCIA, Individually and in her

Official Capacity as Interim Administrator of Neshoba County General

Hospital; R.N. BETH BURNS, Individually and in her Official Capacity as

Head of Nursing Services of Neshoba County General Hospital; M.D.

JEFFREY TODD WILLIS, Individually and in his Official Capacity as

Member of the Medical Staff of Neshoba County General Hospital; M.D.

WALTER WILLIS, Individually and in his Capacity as Chief of Emergency

Room Services, Chairman of the Appeal Committee, & Member of the Medical

Staff of Neshoba County General Hospital; M.D. ANDREW P. DABBS,

Individually and in his Capacity as Chairman of the Medical Executive

Committee of Neshoba County General Hospital & as a Member of the

Medical Staff of Neshoba County General Hospital; M.D. JOHN MANN,

Individually and in his Official Capacity as Member of the Investigative

Committee of the Medical Staff of Neshoba County General Hospital;

QUORUM HEALTH RESOURCES L.L.C.,

Defendants-Appellees

United States Court of Appeals

Fifth Circuit

F I L E D

August 17, 2012

Lyle W. Cayce

Clerk

Case: 11-60481 Document: 00511960275 Page: 1 Date Filed: 08/17/2012
No. 11-60481

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 4:08-CV-68

Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Dr. A. P. Soriano sued the Neshoba County General Hospital’s board of

trustees and numerous staff members after his hospital privileges were revoked. 

He alleged claims for inter alia violation of procedural and substantive due

process, defamation, and tortious interference with business relations. The

district court granted summary judgment to the defendants, and Dr. Soriano

appeals. Reviewing the record de novo, see Carnaby v. City of Houston, 636 F.3d

183, 187 (5th Cir. 2011), we AFFIRM for the following reasons:

1. The defendants afforded Dr. Soriano adequate procedural due process

by granting him a multi-step peer review and appeal process pursuant to

the hospital’s medical staff by-laws. This process included review by the

Investigative Committee, the Medical Executive Committee, the Appeals

Committee, and the Board of Trustees. Dr. Soriano had the assistance of

counsel at a formal hearing, and he was able to testify and cross-examine

witnesses before his privileges were revoked. His procedural due process

rights were not violated. See, e.g., Finch v. Fort Bend Indep. Sch. Dist.,

333 F.3d 555, 562 (5th Cir. 2003) (“The essential requirements of

procedural due process under the Constitution are notice and an

opportunity to respond.”); see also Caine v. Hardy, 943 F.2d 1406, 1411–12

(5th Cir. 1991) (en banc).

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

2

Case: 11-60481 Document: 00511960275 Page: 2 Date Filed: 08/17/2012
No. 11-60481

2. Dr. Soriano asserts that the review process was tainted because Dr.

Mann, an Investigative Committee member, was biased, and because the

members of the Appeals Committee were not neutral insofar as they stood

to benefit financially from his removal from the hospital staff. His

assertions are conclusory and insufficient to create a fact issue in

opposition to summary judgment. See Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc). Moreover, with respect to Dr. Mann,

the record shows that members of both the Medical Executive Committee

and the Appeals Committee testified that they reviewed the record

independently of Dr. Mann’s report. The defendants’ decision to revoke

Dr. Soriano’s privileges was neither arbitrary nor capricious. See Lewis

v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625, 630–31 (5th Cir.

2011).

3. Dr. Soriano has failed to create an issue of fact as to whether the

nurses were concerned about his failure to transfer a cardiac patient

immediately, and whether the nurses ignored his orders to consult with

Dr. Yedlapalli during the night. Regardless whether the nurses indicated

their concern on the patient’s chart, the record shows that Dr. Soriano

knew about the patient’s elevated enzyme levels and that it was not the

nurses’ job to tell him how to respond. As for the alleged orders to consult

Dr. Yedlapalli, Dr. Soriano did not raise this issue in the district court,

and he may not do so for the first time on appeal. See, e.g., Greenberg v.

Crossroads Sys., Inc., 364 F.3d 657, 669 (5th Cir. 2004) (arguments not

raised in opposition to summary judgment may not be raised for the first

time on appeal). Furthermore, the patient’s chart, the nurses’ testimony,

and even Dr. Soriano’s pleadings in the district court, all show that Dr.

Soriano ordered the nurses to consult with Dr. Yedlapalli and a

cardiologist in the morning.

3

Case: 11-60481 Document: 00511960275 Page: 3 Date Filed: 08/17/2012
No. 11-60481

4. Dr. Soriano’s claim for defamation because the defendants reported the

revocation of his privileges to the National Practitioners Data Bank is

without merit. The defendants are immune from this state-law claim

pursuant to the Health Care Quality Improvement Act (“HCQIA”). See 42

U.S.C. § 11111(a)(1). Dr. Soriano asserts that the defendants were not

motivated by a concern for quality health care, see § 11112(a)(1), because

they treated him differently than other doctors who allegedly provided

deficient care to patients but were not investigated. Besides failing to

brief this contention adequately, Dr.Soriano expressly testified that he did

not know whether the other doctors were investigated. Although he

contends that an investigation of his case was not warranted, we do not

second guess the merits of the decision but rather evaluate only whether

the defendants afforded Dr. Soriano fair procedures and made a

reasonable investigation and a reasonable decision based on the facts

before them. See Bryan v. James E. Holmes Reg’l Med. Ctr., 33 F.3d 1318,

1337 (11th Cir. 1994); see also Johnson v. Spohn, 334 F. App’x 673, 679–80

(5th Cir. 2009). Based on the record, we are satisfied that is the case.

5. Finally, with respect to the claim for tortious interference with business

relations, Dr. Soriano provides only speculative and conclusory assertions

in his brief. Moreover, the claim, like the state-law defamation claim, is

barred under the HCQIA. See § 11111(a)(1).

AFFIRMED.

4

Case: 11-60481 Document: 00511960275 Page: 4 Date Filed: 08/17/2012