UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SIDNEY S. LOXLEY, M.D.,
Plaintiff-Appellant,

v.

CHESAPEAKE HOSPITAL AUTHORITY,
                                                                      No. 97-2539
Defendant-Appellee,

and

CHESAPEAKE GENERAL HOSPITAL,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CA-97-658-2)

Argued: October 26, 1998

Decided: December 1, 1998

Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished opinion. Judge Luttig wrote the opinion, in
which Judge Widener and Judge Williams joined.

_________________________________________________________________

COUNSEL

ARGUED: Edwin Ford Stephens, CHRISTIAN & BARTON, L.L.P.,
Richmond, Virginia, for Appellant. Judith Bowles Henry, CREWS &
HANCOCK, P.L.C., Richmond, Virginia, for Appellee. ON BRIEF:
Hill B. Wellford, III, CHRISTIAN & BARTON, L.L.P., Richmond,
Virginia, for Appellant. Thomas F. Hancock, III, Jeannie A. Adams,
CREWS & HANCOCK, P.L.C., Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Dr. Sidney Loxley appeals the dismissal of his claim under 42
U.S.C. § 1983 that the Chesapeake Hospital Authority violated his
rights under the Due Process Clause in refusing to grant him full staff
privileges at Chesapeake General Hospital. We affirm.

I.

Dr. Loxley is an orthopedic surgeon who, in August 1992, held
unrestricted staff privileges at Chesapeake General ("Hospital") in
Chesapeake, Virginia. The Authority, which runs the Hospital, sus-
pended his privileges that month when it learned that he was having
an affair with a 17 year-old patient and prescribing birth control pills
to her. The State Board of Medicine soon thereafter suspended Lox-
ley's license, reinstating it without restriction in October 1994. Lox-
ley was convicted of contributing to the delinquency of a minor and
served six weeks in prison. He has not performed orthopedic surgery
at the Hospital since 1992.

Two and a half years later, in January 1995, Loxley applied for
new staff privileges. (The Authority had planned to reinstate Loxley
in August 1993, but could not do so because his license was still sus-
pended.). The first three committees to consider his application -- the
Surgery Department, the Credentials Committee, and the Medical
Executive Committee -- all recommended denying it. Loxley
appealed to an Ad Hoc Committee, which instead recommended

                     2
granting him provisional privileges for one year (the standard period),
subject to several conditions, including that Loxley secure another
doctor to "proctor" his first five major surgeries and either secure a
proctor for or videotape the next five. The Authority adopted this rec-
ommendation in September 1995. Loxley wrote to the Surgery
Department Chairman, Charles McEnroe, that he "certainly" agreed
to all the conditions.

Meanwhile, Loxley obtained privileges at Norfolk Community
Hospital, the relevance of which we discuss below.

The following June, Loxley applied for reappointment at the Hos-
pital for 1996-97. Loxley, however, had not satisfied the proctoring
requirement imposed by the Hospital. Under the Hospital's Medical
Staff Bylaws, this failure could have justified automatically denying
his application, without any hearing or appeal. See Bylaws § 6.6.1
("Failure to provide adequate information to document compliance
with all qualifications . . . shall be grounds for automatic denial of
reappointment. Such action shall not be deemed `adverse action'"
under Article XI, which gives right to hearings and appeals); § 11.2(c)
(providing for hearing after denial of reappointment, "except as other-
wise provided by Section 6.6.1"). Instead of automatically denying
Loxley's application, though, the Surgery Department recommended
granting a second year of provisional privileges subject to the same
conditions as imposed for the first year. The Credentials Committee
and the Medical Executive Committee agreed.

Again Loxley appealed to an Ad Hoc Committee and again, after
a full hearing, the Committee relaxed the other committees' require-
ments for Loxley. Specifically, it added two modifications to mitigate
the proctoring requirement, which the Committee thought "serve[d] a
valuable and reasonable function" of facilitating the Hospital's evalu-
ation of Loxley "by direct observation," but which Loxley had
claimed he could not fulfill. First, the Committee expanded the num-
ber of possible proctors, allowing any "credentialed member of the
Medical Staff . . . (i.e., Active, Courtesy, or Provisional member)" to
proctor, rather than just Active Members. Second, it allowed Loxley,
as an alternative, to withdraw his application and join a residency pro-
gram "or program with like components" for a year, after which he
"would be eligible to reapply" for full staff privileges. The Authority,

                    3
after a full hearing, adopted the Ad Hoc Committee's recommenda-
tion on April 29, 1997.

Loxley then sued the Hospital and the Authority,* alleging viola-
tions of state law and of the Due Process and Equal Protections
Clauses of the Fourteenth Amendment. The Authority, without
answering, filed a motion to dismiss, and joined to that motion both
the Bylaws and affidavits from various doctors and officials of the
Hospital. Loxley submitted the transcripts of the two 1997 hearings,
along with an affidavit from himself and one of his patients. Various
other materials, including affidavits, letters, and Findings of Fact and
Decisions from the 1997 Ad Hoc Committee and the Authority also
appear in the record before us, although there has been no official dis-
covery. The district court held that the Fourteenth Amendment
applied to the Hospital, which is a state entity, but that Loxley did not
have a protected property or liberty interest affected by the Authori-
ty's actions. It went on to dismiss Loxley's procedural due process
claim on summary judgment (in light of the parties' submissions) and
his substantive due process claim for failure to state a claim. Finally,
the district court dismissed the equal protection claim for failure to
state a claim and dismissed Loxley's pendent state-law claims.

Loxley appeals the district court's rejection of his due process
claims.

II.

We assume, without deciding, that the Authority has deprived Lox-
ley of a protected property or liberty interest under the Due Process
Clause. See Christhilf v. Annapolis Emergency Hosp. Ass'n., Inc., 496
F.2d 174 (4th Cir. 1974), overruled on other grounds, Modaber v.
Culpeper Mem. Hosp., Inc., 674 F.2d 1023 (4th Cir. 1982); Duffield
v. Memorial Ass'n. of Charleston, 361 F. Supp. 398 (S.D. W.Va.
1973), aff'd., Duffield v. Charleston Area Medical Center, 503 F.2d
512 (4th Cir. 1974). But see Randall v. United States, 30 F.3d 518
(4th Cir. 1994). We agree with the district court, however, that even
if the Authority did so, it did not violate Loxley's right to due process.
_________________________________________________________________

*The district court later dismissed the Hospital.

                     4
This is true of both his procedural due process and"substantive" due
process claims.

A.

Notwithstanding the numerous hearings he received, Loxley makes
two arguments that the Authority violated his right to procedural due
process. We reject both, and affirm the district court's summary judg-
ment on this count.

First, Loxley charges bias. None of the doctors whom he claims
were biased, however, was involved in the decision on his applica-
tion. Loxley focuses on Drs. Richard Holden and Michael Romash,
suggesting a conspiracy on their part to undermine him, and attempts
to transform that conspiracy into "bias" by the Authority.

Loxley's own claims, however, undermine his allegation of a con-
spiracy. Holden and Romash are partners with Dr. Samuel Brown. In
January 1996, Dr. Brown wrote Loxley that he was willing to discuss
proctoring but needed more information, particularly about malprac-
tice coverage. Brown also warned that he did not perform all forms
of orthopedic surgery. Soon thereafter, Brown, at the urging of
Holden and Romash, withdrew this tentative offer. Holden and
Romash, in affidavits, say they were concerned about both liability
and "the potential impact on our professional reputations." Loxley
now claims that after this incident, "the pool of potential proctors
dried up," as numerous "maybes" became"nos." But, before the
Authority, Loxley testified that everyone except for Dr. Brown was
a definite "no" by the end of 1995, J.A. 251, before he had even heard
from Brown. Thus the actions of Holden and Romash with regard to
Brown appear not to have affected other doctors at all.

Even if we assume that Drs. Holden and Romash had an active ani-
mus toward Loxley, that cannot translate into bias that would violate
the Due Process Clause. Dr. Holden, although Chairman of the
Authority, recused himself from the Authority's discussions and deci-
sions on Loxley's fate in both 1995 and 1997. Both Holden's affidavit
and the transcript of the Authority's March 18, 1997, hearing so con-
firm. Dr. Romash, who allegedly made derogatory comments about
Loxley to Loxley's patients a few months after the Authority's deci-

                    5
sion, appears not to have been a member of any of the numerous com-
mittees that evaluated Loxley's applications. He certainly was not on
the Ad Hoc Committees or the Authority. Finally, the assertedly
biased Authority gave Loxley more favorable treatment in both 1995
and 1997 than did three other subordinate committees (Surgery, Cre-
dentials, and Medical Executive).

In light of all this, there is no merit to Loxley's plea that he must
be allowed to depose Holden and others, see Fed. R. Civ. P. 56(f), or
that the district court improperly weighed evidence and evaluated
credibility in entering summary judgment. We further note that the
affidavit of Hospital-employee Leslie Phelps, on which Loxley
chiefly focuses, is irrelevant to our conclusion that no reasonable fact-
finder could find unconstitutional bias. While Loxley correctly
observes that a court considering a motion for summary judgment
should resolve all doubt in favor of the nonmovant, see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), there is simply no
doubt here.

Second, for the first time on appeal, Loxley argues that the Author-
ity relied on "secret" or extraneous evidence in 1997. If true, such
would be serious. See Christhilf, 496 F.2d at 177-78. But it is not.

The principal support for this claim fails when it is considered in
context. At the Authority's March 18, 1997, hearing, Loxley and
Benny Sessions, a non-doctor member of the Authority, discussed the
reasons for the Authority's suspension of Loxley's privileges in 1992.
Sessions said, "it seems also that we sat here, Doctor, and went
through volumes and volumes of cases of problems," to which Loxley
replied, "No, sir," and explained the allegations made in 1992. Ses-
sions responded, "But we discussed so many cases here that there was
some problems with," to which Loxley replied,"What other cases?"

The very fact of this discussion undermines Loxley's claim. Far
from hiding anything, Session was candid, admitted that he was "a lit-
tle confused" about events five years in the past, and allowed Loxley
to explain. Further, the presiding officer cut off Sessions' digression:
"Just to clarify what's going on here, we are trying to figure out his
current competency; so we're not going to go here and dig records of
-- this is not the reason we're here." The officer then ordered a five-

                     6
minute break, ensuring that Sessions (who did not speak again) would
be cut off. We can think of nothing that Sessions or the presiding offi-
cer could or should have done differently.

Loxley's reliance on Sessions' statements fails for two other rea-
sons. Sessions based his comments on his prior exposure to the case
(or at least thought he did), which precludes any finding of constitu-
tionally improper "bias." See Duffield, 503 F.2d at 517 ("[T]he bias
and familiarity with a case, which will disqualify,`must stem from an
extrajudicial source. . .'"). Cf. Woodbury, 447 F.2d at 845 ("The con-
sideration on a previous occasion of the plaintiff's qualifications
would not demonstrate such bias as to constitute a denial of due pro-
cess."). Further, the absence of Sessions' name from the Authority's
subsequent Findings of Fact and Decision suggests that he did not
even participate in the final decision. See J.A. 330 (¶ 8), 331.

B.

We also agree with the district court that the Authority did not vio-
late Loxley's right to "substantive" due process. Because the district
court considered matters outside the pleadings, however, we enter
summary judgment rather than affirming the district court's dismissal
for failure to state a claim.

Substantive due process review entails a consideration of the merits
of a hospital's decision rather than just the process by which the hos-
pital reached its decision. Evaluating a doctor's qualifications requires
medical expertise and involves the "overriding and compelling state
interest in safeguarding and protecting [ ] health, safety and lives."
Duffield, 361 F. Supp. at 401. Accordingly, such review is extremely
deferential. A hospital's refusal to grant staff privileges does not vio-
late the Constitution provided it

          is based upon any reasonable basis, such as the professional
          and ethical qualifications of the physicians or the common
          good of the public and the Hospital. . . . The governing
          board of a hospital must [ ] be given great latitude in pre-
          scribing the necessary qualifications for potential applicants.

                     7
Woodbury v. McKinnon, 447 F.2d 839, 845 (5th Cir. 1971) (citations
and internal quotation marks omitted). See Duffield, 361 F. Supp. at
404 ("Judicial review of the merits of internal hospital decisions is
strictly limited and the courts should not substitute their judgment for
hospital agency judgment."); Shahawy v. Harrison, 875 F.2d 1529,
1533 (11th Cir. 1989) ("[H]ospital boards possess broad discretion.")
(internal quotation marks omitted); Woodbury, 447 F.2d at 845 (hold-
ing that hospital satisfies substantive due process if its standards are
reasonable and "applied without arbitrariness, capriciousness or
unreasonableness.").

The Authority, in concluding that Loxley had not carried his bur-
den of establishing his competency, easily satisfied this standard, not-
withstanding Loxley's argument that the proctoring requirement is
unreasonable and impossible. First, Loxley himself, in his letter to Dr.
McEnroe in 1995, readily agreed to the proctoring requirement. As
Loxley no doubt realized, the requirement was clearly reasonable
when originally imposed, since he had performed no surgeries for
over three years.

Second, the Authority and the Ad Hoc Committee, in 1997, fully
considered Loxley's arguments that proctoring was impossible for
him, and gave reasonable explanations for rejecting them. See J.A.
278-79, 324-25. Again, Loxley's best evidence proves insufficient
when it is considered in context. At the Authority hearing, Dr. Car-
ideo, who had chaired the Ad Hoc Committee, explained his commit-
tee's reasoning:

          We didn't think proctoring is such an unusual thing.. . . You
          can't do things in hospitals unless your peers watch you and
          make sure that you know what you're doing. . . .[I]t's no
          more impossible for him to get a proctor to do something
          than it is for any other person to get a proctor. Proctoring is
          important. Not just to watch how you do something, but to
          assess your character, type of person you are, the way you
          work. . . . [T]o say that it's impossible and therefore it's
          unreasonable, that doesn't hold. To me the onus falls on you
          to get your peers to help you; and if all of your peers say,
          I want no parts of you [sic], then I would ask why. Why?

                    8
          What's the big conspiracy? Most doctors don't conspire to
          give you a hard time.

This passage explains Carideo's additional comment that the proctor-
ing requirement "may be impossible. It's not unreasonable." This is
not inconsistent nonsense, as Loxley suggests, but rather an observa-
tion that if the requirement has proven impossible in practice, Dr.
Loxley himself has much to do with that, as the unwillingness of any-
one to proctor for him likely says something about his ability or char-
acter. We see nothing unreasonable in such a view.

Third, the Authority, in 1997, accepted the Ad Hoc Committee's
recommendation both to expand the pool of possible proctors and to
allow Loxley the alternative of a one-year residency program, even
though under the Bylaws the Authority could have summarily
rejected his application. Given that these changes relaxed the require-
ments that Loxley himself had agreed to, the feasibility of this alterna-
tive is irrelevant.

Fourth, the Authority was not unreasonable in viewing Loxley's
record at Norfolk Community Hospital as insufficient to establish his
competency in lieu of proctoring at the Hospital. The district court
found that Loxley "has successfully performed at least 60 surgeries at
Norfolk Community. [His] first six (6) months of surgeries at Norfolk
Community were subject to post-surgery document review and
deemed clinically competent." Dr. McEnroe, however, explained to
the Ad Hoc Committee in 1997 that the Hospital's Surgery Depart-
ment viewed these documents, which were Loxley's own notes from
operations, as "a subjective collection of data" needing corroboration
with direct "objective assessment" at the Hospital. Two doctors from
Norfolk have filed affidavits stating that, although Loxley seemed
competent to them, they had "performed no `proctoring' in the sense
of direct, constant supervision." One of them, Dr. Archer, is not board
certified, as the Authority requires for proctors, and the other, Dr.
Wright, is not an orthopedic surgeon. Norfolk also lacks the capacity
for all the forms of orthopedic surgery that the Hospital allows its full
staff members to perform.

Turning to the procedural matter, we agree with Loxley that the
district court, in dismissing this claim pursuant to Fed. R. Civ. P.

                     9
12(b)(6), improperly considered matters outside the complaint (as
does the Authority in urging affirmance). But that does not preclude
us from reviewing the district court's decision as one for summary
judgment and affirming on that ground, so long as we conclude that
Loxley "has been afforded the opportunity to respond in accordance
with Rule 56." Jackson v. Procunier , 789 F.2d 307, 310 (5th Cir.
1986). Loxley has received such an opportunity, since he has submit-
ted both the hearing transcripts and affidavits.

The procedural posture of this case closely resembles that in
Woodbury, where the Fifth Circuit found no error in the trial court's
denial of discovery requests and affirmed summary judgment against
a substantive due process claim on a record comprising "a transcript
of the hearing, affidavits and exhibits." 447 F.2d at 842. As the court
there explained, if a hospital has satisfied procedural due process, and
substantial evidence supports that hospital's decision, "that ordinarily
ends the matter." Id. at 846 (internal quotation marks omitted). So
here, where, as we have explained, the Authority's imposition and
continuation of the proctoring requirement were far from arbitrary,
capricious, or unreasonable. See 447 F.2d at 845.

None of the issues on which Loxley insists upon discovery would
alter this. For example, given that the proctoring requirement is rea-
sonable both on its face and as applied to Loxley, it is irrelevant
whether the Authority has required others to undergo proctoring. See
Woodbury, 447 F.2d at 842, 845-46. Although Loxley's affidavit
complains about the Authority not having produced"the Hearing
Record," we have before us both the transcripts of the relevant hear-
ings and the written decisions and findings of fact of those commit-
tees. Dr. Brown's letter withdrawing his tentative offer to proctor
does not, as Loxley alleges, contradict the affidavits of Brown,
Romash, Holden. There is therefore no reason to depose those three
individuals.

CONCLUSION

For the reasons stated, we affirm the district court's entry of sum-
mary judgment in favor of the Authority on Loxley's procedural due
process claim, and we enter summary judgment in favor of the
Authority on Loxley's substantive due process claim.

                    10
The judgment of the district court is affirmed.

AFFIRMED

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