### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 17, 20 12 Lyle W . Cayce Clerk Case: 11-60481 Document: 00511960275 Page: 1 Date Filed: 08/17/2012No. 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 s u e d th e Neshoba County General Hospital’s board of trustees and numerous staff members after his hospital privileges were revoked. He a ll e g e d claims for inter alia violation of procedural and substantive due
process, defamation, and tortious interferen c e with business relations. The district court grante d s u m m a ry 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., Fi n c h v . Fort Bend Indep. Sch. Dist ., 333 F.3d 555, 562 (5th Cir. 2003) (“The essential requirements of procedural due process under the Constituti o n a r e notice and an opportunity to respond.”); see also Caine v. Hardy , 943 F.2d 1406, 1411–12 (5th Cir. 1991) (en banc).

Pur sua nt to 5 T H C IR . R. 47.5 , the cour t hasd ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. 2 Case: 11-60481 Document: 00511960275 Page: 2 Date Filed: 08/17/2012No. 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 t o b e n e fit financially from his removal from the hospital staff. H i s assertions are concl u s o ry a nd 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 th e r e cord independently of Dr. Mann’s repo rt

. The defendants’ decision to revoke Dr. Soriano’s privileges was neither arbitrary nor capricio u s. See Lewis

v. Univ. of Tex. Med. Branch at Galveston , 665 F.3d 625, 630–31 (5th Cir. 2011). 3. Dr. Sori a n o h a s 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 order s t o consult with Dr. Yedlapalli during the night. Regardless whether the nurses indicated their concern on the p at i e n t ’ s chart, the record shows that Dr. Soriano k n e w ab o u t 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. Soria n o di d n o t raise this issue in the district court, and he may not do so for the first time on appeal. See, e.g. , Greenberg v. Cro s sroads Sys., Inc. , 364 F.3d 657, 669 (5th Cir. 2004) (arguments n o t 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 distric t c o u rt , all show that Dr. Soriano ordered the nurses to consult with Dr. Ye dl a p alli and a cardiologist in the morning.

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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 defend a nt s were not motivated by a concern for quality health care, see § 11112(a)(1), because they treated him differently than other doctors who allegedly p r ovided deficient care to patients but were not investigated. Besides failing to brief this contentio n a de qu at ely , D r . S ori ano expressly testified that he did not k n o w whether the other doctors were investigated. Although he contends that a n i nv e stigation 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.

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