                                                                        FILED
                              NOT FOR PUBLICATION                        JUN 09 2011

                                                                     MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                  U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



RICHARD CHUDACOFF, M.D.,                       Nos. 09-17558 and 09-17652

             Plaintiff-Appellant/              D.C. No. 2:08-cv-00863-ECR-RJJ
             Cross-Appellee,

  v.                                           MEMORANDUM *

UNIVERSITY MEDICAL CENTER OF
SOUTHERN NEVADA, a political subdivision of
Clark County, State of Nevada; BRUCE L.
WOODBURY, TOM COLLINS, CHIP
MAXFIELD, LAWRENCE WEEKLY, CHRIS
GIUNCHIGLIANI, SUSAN BRAGER, and
RORY REID, Clark County Commissioners, ex-
officio, the Board of Trustees of University
Medical Center of Southern Nevada;
KATHLEEN SILVER, an individual; THE
MEDICAL AND DENTAL STAFF OF THE
UNIVERSITY MEDICAL CENTER OF
SOUTHERN NEVADA; JOHN ELLERTON,
M.D., an individual; MARVIN J. BERNSTEIN,
M.D., an individual; DALE CARRISON, M.D.,
an individual; DONALD ROBERTS, M.D., an
individual,

             Defendants-Appellees/
             Cross-Appellants.




         *
           This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                   Appeal from the United States District Court
                            for the District of Nevada
                 Edward C. Reed, Senior District Judge, Presiding

                     Argued and Submitted December 9, 2010
                            San Francisco, California

Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.

      In a separate opinion filed concurrently with this memorandum disposition, we

reversed the district court’s grant of summary judgment on Dr. Richard Chudacoff’s

(“Chudacoff”) due process claims in favor of Defendants John Ellerton, Dale

Carrison, Marvin Bernstein, and Donald Roberts, voting members of the Medical

Executive Committee (“MEC”) of the Medical and Dental Staff at the University

Medical Center of Southern Nevada (“UMC”).            With respect to Chudacoff’s

defamation and negligence per se claims under Nevada state law, we affirm as to all

Defendants, and we therefore need not reach the issue of immunity under the Health

Care Quality Improvement Act (“HCQIA”) raised on cross-appeal.      1



      I. State Law Claims

             A. Defamation


      1
        HCQIA immunity cannot shield Defendants from liability for damages sought
under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, or the federal or
state Constitutions, and is thus irrelevant to Chudacoff’s due process claims. See 42
U.S.C. § 11111(a) (2006); Patrick v. Burget, 486 U.S. 94, 105 n.8 (1988); Austin v.
McNamara, 979 F.2d 728, 733 (9th Cir. 1992).

                                         2
      To establish defamation under Nevada state law, Chudacoff must show: (1)

Defendants made a false and defamatory statement about him; (2) the publication was

not privileged; (3) Defendants were at least negligent if not more at fault; and (4) he

suffered actual or presumed damages as a result. Simpson v. Mars, Inc., 929 P. 2d

966, 967 (Nev. 1997) (citing Chowdhry v. NLVH, Inc., 851 P.2d 459, 462 (Nev.

1993)).

      The district court correctly granted summary judgment because the sole alleged

defamatory statement, Ellerton’s adverse report to the National Practitioners Data

Bank (“NPDB”), was made pursuant to the HCQIA’s statutory reporting requirements

and was therefore conditionally privileged. See 42 U.S.C. §§ 11133(a)(1)(A) &

(a)(3), 11134; 45 C.F.R. §§ 60.1, 60.3, 60.5(d), 60.11(a)(1)(i) & (b); Circus Circus

Hotels, Inc. v. Witherspoon, 657 P.2d 101, 105 (Nev. 1983) (qualified or conditional

privilege available “where a defamatory statement is made in good faith on any

subject matter in which the person communicating has an interest, or in reference to

which he has a right or a duty, if it is made to a person with a corresponding interest

or duty”); see also Jesinger v. Nev. Fed. Credit Union, 24 F.3d 1127, 1133 & n.10

(9th Cir. 1994) (collecting cases finding qualified privilege under similar

circumstances of information-sharing between current and prospective employers

about employee’s performance).


                                          3
      Furthermore, although the content of the NPDB report was ultimately modified,

Chudacoff presents no evidence that Ellerton acted with malice in fact in filing the

initial report. See Circus Circus, 657 P.2d at 105 & n.2. Chudacoff has shown neither

“spite or ill will or some other wrongful motivation,” see id.; see also Nev. Rev. Stat.

41.332, nor “a high degree of awareness of the probable falsity” of the report on the

part of Ellerton, see Nev. Indep. Broad. Corp. v. Allen, 664 P.2d 337, 344 (Nev. 1983)

(internal quotation marks and alterations omitted). The question of malice “goes to

the jury only if there is sufficient evidence for a jury reasonably to infer that the

publication was made with malice in fact,” and Chudacoff has not met this burden of

production. See Circus Circus, 657 P.2d at 105 (internal citations omitted).

             B. Negligence Per Se

      Chudacoff is under the mistaken impression that violation of his due process

rights, without more, establishes negligence per se as a matter of Nevada law. A

negligence per se claim arises only when a duty is created by statute and “the injured

party is in the class of persons whom the statute is intended to protect and the injury

is of the type against which the statute is intended to protect.” Sanchez ex rel. Sanchez

v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1283 (Nev. 2009) (internal citation omitted).

Chudacoff has neither asserted nor established that § 1983, even if violated here, was

designed specifically to protect hospital physicians as a class, and while the MEC’s


                                           4
deviation from the hospital’s administrative guidelines may be evidence of negligence,

it does not give rise to a claim for negligence per se. See Price v. Sinnott, 460 P.2d

837, 840 (Nev. 1969).

      II. HCQIA Immunity

      Defendants cross-appeal from that part of the April Order determining

defendants are not entitled to immunity under the HCQIA for failure to comply with

its statutory requirements.

      We affirm the district court’s grant of summary judgment as to Chudacoff’s

state law claims and therefore need not consider whether the HCQIA would immunize

defendants from damages liability arising from those claims.2

      AFFIRMED.




      2
         Were we to reach the issue, we would be inclined to affirm the denial of
HCQIA immunity. Although the district court erred in treating noncompliance with
42 U.S.C. § 11112(b)’s “safe harbor” provision as automatically preclusive of HCQIA
immunity, Defendants not only failed to provide Chudacoff with notice and hearing
as prescribed by the “safe harbor” provision prior to suspension of his privileges, but
also failed to provide him with any reasonable alternative procedures. Defendants’
actions do not satisfy the fairness requirements under 42 U.S.C. § 11112(a), nor can
Chudacoff’s more-than-fourteen-day suspension be justified as a summary or health-
emergency suspension under 42 U.S.C. § 11112(c), particularly when Defendants
have already conceded that it was not a summary suspension but rather a “routine
administrative action.” See Chudacoff v. Univ. Med. Ctr. of S. Nev. (“Chudacoff I”),
609 F. Supp. 2d 1163, 1171 (D. Nev. 2009).

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